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Plaintiff v. Drug Store

April 2011

Sedgwick obtained a dismissal with prejudice for its drug store client in federal court in Florida. Our client had received a warning letter from the FDA that a claim on the label of its proprietary anti-cavity mouth rinses stating that the rinse helps fight visible plaque above the gum line was improper. The retailer disagreed, but agreed to remove the claim anyway.  Even though the retailer agreed to remove the claim from its labels, the plaintiff filed a class action in the Southern District of Florida against the company based upon the FDA letter. Sedgwick determined that plaintiff’s counsel had failed to provide any evidence to support claims that the anti-plaque claim was false or that the plaintiff had actually purchased the product for personal use.  Sedgwick filed a motion to compel adequate Rule 26 disclosures and sought a “Lone Pine order” limiting discovery to that needed to show that the plaintiff could meet the elements of its prima facie case. The next day, the plaintiff's counsel approached Sedgwick and asked if fees could be waived in exchange for a dismissal with prejudice. Sedgwick agreed, and the case was dismissed.