Antitrust Law Daily Wrap Up, ADVERTISING—S.D.N.Y.: Most ‘Maximum Strength’ Robitussin consumers survive summary judgment, but fail to certify a class, (Mar 25, 2024)

By Justin Marcus Smith, J.D.

It was not reasonable to expect a consumer, post-reformulation, to apply arithmetic to a comparison of the concentrations of cough syrup active ingredients on a bottle-by-bottle basis relative to “Regular Strength” Robitussin.

Consumers hailing from multiple states managed to survive summary judgment about their “Maximum Strength” Robitussin labeling claims, held the federal district court in New York City. The court found a reasonable jury could find the “Maximum Strength” labeling deceived the consumers into overpaying for the product. Although questions about the consumers’ credibility were not enough, except in the instance of one consumer, to enter summary judgment against them, the court found credibility issues were likely to detract from the focus of the litigation to the detriment of class members. The court accordingly denied the consumers’ motion to certify a class under Fed. R. Civ. P. 23(a) (Woodhams v. GlaxoSmithKline Consumer Healthcare Holdings [US] LLC, March 21, 2024, Oetken, J.).

Background. Seven consumers hailing from California, Colorado, Michigan, Missouri, New York, and North Carolina brought a putative class action asserting consumer protection and unjust enrichment claims against defendant GlaxoSmithKline Consumer Healthcare Holdings (US) LLC (GSKCHH). The consumers objected to having paid more for GSKCHH’s “Maximum Strength” formulation of Robitussin cough syrup compared to “Regular Strength.”

According to GSKCHH, a June 2016 reformulation of the Maximum Strength product, accompanied by a product packaging callout, indeed doubled the recommended liquid volume dose to 20 ml. That effectively halved the concentration of DXM Hbr at the old 10 ml dose (10 mg), while maintaining the same amount of guaifenesin (200 mg) as the Regular Strength 10 ml dose. The bottles remained the same size, so a bottle of Regular Strength had twice as many doses as a bottle of Maximum Strength, and GSKCHH charged more for a Maximum Strength bottle. In the summer of 2018, GSKCHH reformulated the Regular Strength dose to 20 ml, so the consumers’ claims only pertained to purchases between June 2016 and summer 2018. GSKCHH contended it maintained the “maximum strength” labeling so a dose of Maximum Strength Robitussin would give a consumer the maximum per-dose quantity of DXM Hbr and guaifenesin the FDA allowed. However, apparently nothing on the packaging referenced or compared the concentration of active ingredients relative to Regular Strength Robitussin.

The consumers contended GSKCHH reformulated the Maximum Strength to increase the price per dose, but GSKCHH denied this, stating instead that it reformulated to improve taste and sensory attributes. The court found internal GSKCHH correspondence suggested GSKHH knew that changing the dosage to 20 ml would cause consumers to use a bottle twice as fast and present an opportunity for repeat purchases. Some GSKCHH employees questioned whether this would upset consumers.

In a prior ruling, the court dismissed the unjust enrichment claims of three of the consumers, but denied dismissal with respect to the seven consumers’ remaining claims. GSKCHH moved for summary judgment, and the consumers moved for class certification. The court partly granted and partly denied summary judgment for GSKCHH, but it denied the consumers’ motion for class certification.

Purchase timing. The court partially granted GSKCHH’s motion for summary judgment on whether certain of the consumers bought the product during the relevant time period between the two reformulations. GSKCHH challenged that certain consumers failed to produce store receipts or even a store customer loyalty accounting for their purchases. The consumers in question pointed to sworn interrogatory responses and deposition testimony, but GSKCHH was dismissive that the deposition testimony was inconsistent, illogical, and therefore not credible.

The court found some of the consumers’ testimony contained inconsistencies and uncertainty as to whether they had actually bought the product during the relevant time period, but the problems were not so extraordinary to cast doubt on plausibility. However, the testimony of a fourth was too ambiguous and uncertain for a jury to find she bought the Maximum Strength product. The court otherwise observed the consumers were not necessarily required to produce receipts. It noted courts in the circuit have recognized that consumers often lack a proof of purchase, and with respect to loyalty accounting, the consumers testified they did not always use their store loyalty accounts.

In conclusion, the court determined that questions of material fact pertained to three of the consumers, but the testimony of a fourth was too uncertain. The court denied GSKCHH summary judgment with respect to the first three, but it granted summary judgment with respect to the fourth.

Deception. The court found that GSKCHH’s reliance on isolated deposition answers failed to undermine the consumers’ claims on summary judgment. The court found it was not reasonable to expect a consumer, post-reformulation, to apply arithmetic to a comparison of the doses in each bottle and calculate each bottle’s concentrations of the active ingredients. The labeling also invited consumers viewing both products to assume the more expensive Maximum Strength bottle had the greater of the two concentrations of active ingredients, i.e., more potency per volume. Considering the consumers’ deposition testimony alongside GSKCHH’s internal documents, the court concluded the consumers adduced enough evidence to support a jury finding that a reasonable consumer would interpret the “Maximum Strength” label as a representation about the concentration of active ingredients in the bottle. The court denied summary judgment on this basis.

Causation. In analyzing certain of the consumers’ testimonies on the question of whether the label actually caused them to purchase the “maximum strength” product, the court rejected GSKCHH’s arguments that these consumers were aware of dosage size for reasons unrelated to active ingredient concentration or else could not show they had the option of purchasing Regular Strength. The court reasoned that even if the consumers were aware of dosage size before they purchased, they still would have had to go beyond the label and perform a bottle-by-bottle comparison to calculate the concentrations of the active ingredients. The court said GSKCHH cited cases that were “inapposite” because the product labels contained all the information a reasonable consumer would need without having to compare bottles. Second, as to GSKCHH’s argument that the consumers would have purchased Maximum Strength because they wanted the maximum quantity of active ingredients available per dose, rather than per bottle, the court said that argument failed to undermine the consumers’ claims.

Third, as to whether two of the consumers did not have evidence that Regular Strength was a purchase option, the court reasoned it was still possible that they would not have bought the Maximum Strength product but for the maximum strength labeling.

In sum, the court found a reasonable jury could find the “Maximum Strength” labeling deceived the consumers into purchasing and overpaying for the product. The court held the consumers’ consumer protection and unjust enrichment claims survived summary judgment accordingly.

Class certification. The court denied the consumers’ motion for class certification because problems with their proofs and testimony were likely to detract from the focus of the litigation to the detriment of class members. The court distinguished the relevant inquiry was not whether the consumers could prevail at trial, as it had been on GSKCHH’s motion for summary judgment, but rather whether the consumers could fairly and adequately protect the interests of the class.

The court found the consumers who did not have proofs of purchase, and who sometimes offered contradictory and inconsistent testimony in connection therewith, posed unique trial problems likely to detract from the focus of litigation. The consumers offered little to refute GSKCHH’s arguments here. The court concluded the consumers would have to devote substantial attention to overcoming “damaging’ deposition testimony and addressing credibility concerns as to whether they even bought the Maximum Strength product during the relevant time period. Taken together, these issues rendered them inadequate class representatives. The court decided R. 23(a) prerequisites were not met, denied the consumers’ motion for class certification, and did not reach the question of R. 23(b) requirements.

The case is No. 18-CV-3990 (JPO).

Attorneys: Daniel Kurowski (Hagens Berman Sobol Shapiro LLP) for Timothy A. Woodhams. Thomas E. Fox (Skadden, Arps, Slate, Meagher & Flom LLP) for GlaxoSmithKline Consumer Healthcare Holdings [US] LLC.

Companies: GlaxoSmithKline Consumer Healthcare Holdings [US] LLC

Cases: Advertising StateUnfairTradePractices NewYorkNews