Holy cats! Posner makes feline comparison in eye-drops class action

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Judge Richard Posner. Image courtesy of the University of Chicago.

The Chicago-based 7th U.S. Circuit Court of Appeals recently reversed a class-action certification order in a consumer lawsuit that alleged that the eye drops used to treat glaucoma were larger than necessary, and those who used the drops were overpaying.

Even if the defendants—Allergan, Alcon, Bausch and Lomb, Pfizer, Merck and Prasco—sold tiny eye drops that were cheaper and just as effective, consumers still got what they paid for, Judge Richard Posner wrote for court. Posner is a cat owner, according to Law.com, and he evoked felines and Fancy Feast to illustrate his reasoning in the 7th Circuit opinion (PDF).

“Suppose the class members all happened to own pedigreed cats, and the breeders who had sold the cats to the class members had told them that as responsible cat owners they would have to feed the cats kibbles during the day and Fancy Feast at night and buy a fountain for each cat because cats prefer to drink out of a fountain (where gravity works for them) rather than out of a bowl (where gravity works against them) and they don’t like to share a fountain with another cat,” Posner wrote. He asked readers to imagine that the cat food got more expensive, and the fountains didn’t work.

Cat owners, he wrote, wouldn’t like that. “Yet would anyone think they could successfully sue the breeders? For what? The breeders had made no misrepresentations. “It’s the same here.”

Regret or disappointment in a product is not an actionable injury, Posner wrote.”You cannot sue a company and argue only—“it could do better by us”—which is all they are arguing. In fact, such a suit fails at the threshold, because there is no standing to sue.” Posner ordered U.S. District Judge Staci Yandle of the Southern District of Illinois to dismiss the case with prejudice

Plaintiffs in the case allege violation of merchandising practices law in Missouri, and consumer fraud in Illinois, the Cook County Record reports. The district court certified eight classes in the two states.




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