Conrad v. Boiron, Inc.
869 F.3d 536
7th Cir.2017Background
- Boiron markets homeopathic Oscillococcinum (Oscillo), sold for $12–$20; critics say it is essentially a placebo.
- A 2012 nationwide class settlement (Gallucci) required Boiron to offer refunds and a future 14-day refund policy; Boiron later extended that to 30 days (the “Boiron Promise”).
- Some purchasers opted out of Gallucci and new suits followed; Chad Conrad filed suit in Illinois seeking class certification and individual relief for deceptive marketing.
- The district court denied class certification (finding inadequate representation and overlap with Boiron’s refund program) and rejected Conrad’s request for injunctive relief for lack of standing, leaving only an individual damages claim.
- Boiron deposited $5,025 (more than Conrad could recover) into the court registry under Federal Rule of Civil Procedure 67; the district court treated this as mooting Conrad’s individual claim and dismissed the case. Conrad appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Conrad should be allowed to represent the proposed Oscillo purchaser class (Rule 23 adequacy) | Conrad: class treatment can provide additional relief; discovery could show Boiron Promise is ineffective | Boiron: existing refunds and the Boiron Promise render any class benefit minimal; high transaction costs make class recovery negligible | Affirmed denial of class certification — Conrad inadequate; Boiron Promise and small, low-value class likely leave little benefit to absent members |
| Whether deposit of full-amount funds into the court registry under Rule 67 moots Conrad’s individual damages claim | Conrad: he may refuse the offer; an unaccepted offer cannot moot the case | Boiron: depositing the full amount should be treated as satisfaction and thus moot the claim | Reversed district court on mootness; an unaccepted Rule 67 deposit does not automatically moot the claim (following Fulton Dental and Campbell-Ewald reasoning) |
| Whether Conrad has standing to seek injunctive relief under the Illinois Consumer Fraud Act | Conrad: injunctive relief appropriate as part of class claims | Boiron: Conrad knows about the refund program and Oscillo’s nature; injunction would not redress his injury | Affirmed lack of standing for injunctive relief — no redressability for individual plaintiff |
| Whether courts can deem a plaintiff to have accepted a settlement because of delay or refusal to accept | Conrad: courts should not treat refusal as acceptance | Boiron: persistent refusal should be treated as equivalent to acceptance to prevent vexatious litigation | Court: refused to create such a doctrine; other tools (28 U.S.C. §1927, Rule 11, Rule 68, inherent powers) exist to address abusive litigation |
Key Cases Cited
- Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541 (7th Cir. 2017) (holding an unaccepted Rule 67 deposit does not moot a claim)
- Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (U.S. 2016) (an unaccepted settlement offer does not moot a plaintiff's case)
- In re Aqua Dots Prods. Liab. Litig., 654 F.3d 748 (7th Cir. 2011) (denying certification where existing recall/refund program would leave little benefit to class)
- Taylor v. Sturgell, 553 U.S. 880 (U.S. 2008) (principle that litigants have a right to their day in court)
- Chambers v. NASCO, Inc., 501 U.S. 32 (U.S. 1991) (recognizing courts' inherent power to sanction abusive litigation)