Eike v. Allergan, Inc., 2017 U.S. App. LEXIS 3954

Plaintiffs (classes in Illinois and Missouri) sued six pharmaceutical manufacturers, alleging their glaucoma eye drops are too large (>16 microliters) and therefore wasteful and overpriced.
Plaintiffs seek damages equal to the price difference per drop if drops were limited to 16 µL multiplied by number of drops purchased.
No antitrust claim or allegation of misrepresentation: plaintiffs do not allege collusion or false statements by defendants.
Plaintiffs claim larger drops provide no additional therapeutic benefit and may increase side effects or run out faster, but they allege no actual injuries from side effects or early depletion.
Defendants point to FDA approval of the larger drops, pharmacologic reasons (active ingredient small portion of drop; eye capacity varies), and practical concerns (elderly or impaired users missing smaller drops).
District court certified classes; the appellate court vacated certification and ordered dismissal with prejudice for lack of standing and failure to allege a legally protected injury.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing to sue for overpriced product-size	Consumers paid more because drops exceed optimal 16 µL; economic "pocketbook" injury	No legally cognizable injury: only disappointment/regret that product isn't smaller or cheaper	Plaintiffs lack Article III standing; dismissal required
Claim under consumer-protection statutes (IL & MO) based on drop size	Larger drops violate consumer fraud/merchandising statutes by causing overpayment	No deception, misrepresentation, or collusion; product lawfully marketed and FDA-approved	Statutory claims fail where no legally protected injury is pled; cannot convert dissatisfaction into injury
Ability of courts to evaluate safety/efficacy vs. FDA authority	Plaintiffs imply smaller drops could be safer/cheaper and courts can adjudicate harm	FDA approval of current drops places safety/efficacy questions within agency competence; courts should not substitute their judgment	Court refuses to bypass FDA; technical efficacy questions belong to agency process
Remedy sought (forcing manufacture of smaller drops)	Seek damages based on hypothetical cheaper product and effectively a change in manufacturers’ product decisions	Courts cannot compel private companies to produce a different product; plaintiffs didn’t ask FDA to mandate change	Remedy inappropriate; even if theoretically better product exists, courts cannot force production and plaintiffs allege no compensable injury

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Article III standing requires concrete injury beyond mere procedural or informational violations)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury that is concrete, particularized, and actual or imminent)