Judge tosses class action vs CVS over ‘Made in USA’ vitamin C drops, for now – Cook County Record

A federal judge has dismissed a lawsuit against CVS Pharmacy in
which a Cook County man claimed the company’s vitamin C drops were falsely
labeled “Made in the U.S.A,” but left open the door for him to potentially take another try at continuing a class action against the drugstore chain.

David DeMedicis filed a complaint in August 2016 against CVS
Health Corp. and CVS Pharmacy Inc. on behalf of himself and a putative class.
In the suit, DeMedicis claimed CVS violated the Uniform Deceptive Trade
Practices Act, the Illinois Consumer Fraud and Deceptive Business Practices Act
and other state consumer fraud statutes.

According to court documents, DeMedicis claimed he bought
“Assorted Citrus Vitamin C Supplement Drops” from a CVS store between November
2015 and June 2016. In his suit, DeMedicis alleged that the supplements’
packaging was labeled “Made in U.S.A.” but the vitamin C is actually sourced
from foreign countries.

In his ruling, Judge John W. Darrah noted that “Plaintiff
incorrectly alleges that the packaging states ‘Made in the U.S.A.’”

Darrah granted CVS its motion to dismiss, but denied its
motion to strike the class allegations.

In denying the motion to strike, Darrah said it was
“premature” for CVS to make its assertion that the proposed class is too large
and too vague.

“Defendants argue that the class is overbroad because it
would include people who are satisfied with the purchase, people who never saw
‘Made in U.S.A.’ on the packaging, those who bought the product for other
reasons and other groups unlike the plaintiff,” the judge wrote, noting that
this is an argument for refining the class, not striking it. Likewise, he ruled
it is premature to determine whether DeMedicis is an adequate class
representative and whether the appropriate documentation and proximate cause
exist.

Darrah did grant CVS’ motion to dismiss all the counts of
the lawsuit.

In the first count, the plaintiff alleged CVS violated the
Uniform Deceptive Trade Practices Act by labeling products with false
statements of origin, and sought injunctive relief. To obtain injunctive relief,
the judge pointed out, a plaintiff must successfully argue the defendant’s conduct
will harm him in the future. He wrote that if DeMedicis believes he was harmed
by the labeling on the vitamin drops, he is not likely to keep buying them.

The second count, violating the Illinois Consumer Fraud and
Deceptive Business Practices Act, was likewise dismissed because the plaintiff
did not allege actual damages, as he did not claim that the deceptive labeling
caused him to buy a product or spend more than he would have without the label.
The judge echoed the same reasoning for dismissing the plaintiff’s claim of
unjust enrichment.

The fourth count in the lawsuit was filed on behalf of
others in the class who do not live in Illinois, and argues a violation of
consumer fraud statutes in other states. As the defendant is the only link
between those consumers and the state of Illinois, Darrah granted the motion to
dismiss for lack of personal jurisdiction.

The motion to dismiss was granted without prejudice.
DeMedicis has 30 days to file an amended complaint.

DeMedicis is represented in the action by attorneys with the firms of Taxman, Pollock, Murray & Bekkerman LLC, of Chicago, and Davis & Norris LLP, of Birmingham, Ala.

CVS was defended by the firms of Robinson Bradshaw & Hinson, of Charlotte, N.C., and

Falkenberg Fieweger & Ives LLP, of Chicago.

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