Plaintiff v. Major Drug Retailing Chain
Sedgwick obtained a dismissal for our client, a major drug retailing chain, in a putative consumer class action involving mouth rinse. The plaintiff asserted violations of California’s Unfair Competition Law (UCL), False Advertising Law (FAL) and Consumer Legal Remedies Act (CLRA), among other claims. The plaintiff filed his complaint parroting an FDA warning letter advising our client and other manufacturers of mouth rinse that fluoride had not been approved for anti-plaque uses and the FDA wanted certain anti-plaque label claims removed. Sedgwick argued the plaintiff’s complaint was an attempt to enforce over-the-counter drug claims under color of state law and was thus preempted pursuant to 21 USC section 379r; the plaintiff lacked standing to enforce drug label claims under 21 USC section 337; and the plaintiff’s complaint failed to meet the specific pleading standards required under UCL and CLRA for claims sounding in fraud. Sedgwick also served a motion for sanctions pursuant to CCP section 128.7 (California’s Rule 11) and calculated the 21-day safe harbor period to expire two days before the court announced its tentative ruling on the motion for judgment on the pleadings. Finally, we advised the plaintiff’s counsel that even if we did not succeed on the preemption motion, our next step would be to seek the plaintiff’s nonsuit in a CLRA “no merits” hearing, and if they sought to amend the complaint, then we would move to strike all allegations based on the FDA letter, and request the court to hear our sanctions motion simultaneously with our demurrer or no merits motion. On the last day of the 21-day safe harbor period to dismiss without sanctions, the plaintiff dismissed the complaint with prejudice. This victory is the third and latest victory for our client on this product that the firm has won during the past year. The other two were in Florida and Arkansas.