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Federal Judge Dismisses ‘Logic-Defying’ Claim Filed by Consumers Pretending to Be Imbeciles

A federal judge Tuesday bluntly dismissed a putative nationwide class action filed on behalf of consumers pretending to be imbeciles who were oblivious to plainly labeled pill-counts on packaging of over-the-counter medication.  Their claim implausibly argued that the medication’s bottle sizes somehow trick consumers into believing they are purchasing more medication than what the labels specify.

As reported first by, Senior U.S. District Judge Sterling Johnson showed little patience for the consumers’ “slack-fill” claims initially brought last year under the federal Food, Drug & Cosmetic Act and New York, Florida and California state consumer protection laws in Fermin et al. v. Pfizer Inc.

Judge Johnson said the plaintiffs’ failure to read the unambiguous pill counts printed on the packaging of Advil they allegedly purchased “does not pass the proverbial laugh test.  . . . [I]t  is not probable or even possible that Pfizer’s packaging could have misled a reasonable consumer.”

Furthermore, the judge noted, even though the plaintiffs’ argue they relied on the size of the Advil packaging and not on the pill counts printed on that packaging, they “provide no basis for disregarding the clearly stated pill count, nor do they dispute the fact that the tablet count is clearly and prominently displayed.”

“Plaintiffs’ own exhibits show that the labels plainly negate any supposed ‘reliance’ on the size of the packaging as it is impossible to view the products without also reading the total number of pills contained in each package.  It defies logic to accept that the reasonable consumer would not rely upon the stated pill count.”

“In sum, plaintiffs’ claims amount to ‘non-actionable puffery,’ and are unreasonable as a matter of law.”

ATRA considers Judge Johnson a “commonsense hero” and urges more federal and state court judges to model his zero-tolerance policy for similarly preposterous, court resource-wasting consumer claims.  Engineered wholly by and for the benefit of parasitic personal injury lawyers trying to get rich at everyone else’s expense, such claims ultimately hurt real consumers as litigation defense costs are invariably passed on in the form of higher prices for goods and services.

Sternly worded dismissals like Judge Johnson’s are certainly better than a poke in the eye with a sharp stick.  But in an ideal world judges would routinely impose stiff sanctions on self-serving plaintiffs’ lawyers who, with no apparent sense of irony, gin up consumer fraud lawsuits that are fraudulent in their own right.  As we see it, there’s no good reason that Mr. C.K. Lee and Ms. Anne Seelig of the Lee Litigation Group, PLLC in Manhattan, the lawyers who drove this Advil sham, shouldn’t be minimally required to pay the defendant’s legal costs.

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