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Judge Partially Certifies Milberg’s Rite Aid Consumer Class Action

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April 27, 2021

A California federal judge has certified, with minor modifications, a Milberg class action lawsuit that claims Rite Aid misled customers about the efficacy of its generic “rapid release” acetaminophen gelcaps.

Case Summary: Customers Deceived By “Rapid Release” Labeling

Lead plaintiff Thomas Bailey, represented by Milberg’s Gregory E. Coleman, Adam A. Edwards, and Mark E. Silvey, filed the class action lawsuit in November 2018. The lawsuit says that Rite Aid charges a premium for its rapid-release acetaminophen products, and that these products do not work any faster than non-rapid release products. It accuses Rite Aid of advertising the rapid-release gelcaps with “false, misleading, unfair, deceptive labeling and marketing in an effort to dupe consumers into purchasing these gelcaps for prices that exceed their true value.”

Bailey maintains that Rite Aid’s labeling misled him into paying more for a product that did not provide faster relief than traditional, cheaper Rite Aid products, asserting unjust enrichment and violations of California’s False Advertising Law, Unfair Competition Law, and Consumer Legal Remedies Act.

“Had Bailey known that the Rite Aid gelcaps did not act any faster than traditional, cheaper Rite Aid products, he would not have been willing to pay the premium that he paid for the Rite Aid gelcaps,” the lawsuit states. “Instead, “he would have purchased a cheaper, just as effective and just as fast acting acetaminophen product.”

Judge Grants Certification, But Narrows Class and Claims

In an order issued April 27, U.S. District Yvonne Gonzalez Rogers of the Northern District of California granted Bailey’s motion to certify the class action lawsuit.

However, based on Bailey’s concession during oral argument that price and label comparison of “rapid release” tablets and cheaper Rite Aid tablets could only occur at brick-and-mortar Rite Aid Stores, the judge narrowed the class to exclude customers who bought the gelcaps online.

The judge also denied certification for Bailey’s unjust enrichment claim and his claim for injunctive relief, finding that, because Bailey testified he will never again purchase the Rite Aid gelcaps, he lacks standing to seek the prospective injunctive relief. Bailey requested prospective injunctive relief that would require Rite Aid to truthfully represent the quality of its gelcaps, issue a nationwide recall of the gelcaps to address product labeling and packaging, and to immediately discontinue any product misrepresentations. But the judge’s denial of the request for certification of an injunctive relief class was made without prejudice, leaving the window open to renew it.

Milberg Lawyer Calls Ruling “Complete Success”

Milberg’s Mark E. Silvey told Law360 that he considers the judge’s ruling a “complete success” and said the court repeatedly pointed out that “the expert opinion offered by Rite Aid in opposition to our motion was seriously flawed and unconvincing.”

Milberg pioneered federal class action litigation and continues to be a national leader in class action lawsuits. Since 1965, the firm has repeatedly taken the lead in landmark cases that have set groundbreaking legal precedents, prompted changes in corporate governance, and recovered over $50 billion for our clients.

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