Fermin v. Pfizer Inc.
215 F. Supp. 3d 209
E.D.N.Y2016Background
- Plaintiffs (consumers) brought a putative nationwide class action against Pfizer alleging "slack-fill" in Advil OTC packaging — that packaging size misled them into buying product because containers were not filled to capacity.
- Claims asserted under the FDCA and New York, Florida, and California consumer protection laws; plaintiffs later withdrew the federal jurisdiction claim, leaving CAFA/diversity jurisdiction invoked in federal court.
- Complaint acknowledged the pill-count is clearly and prominently printed on each package, but alleged plaintiffs relied on package size rather than the stated pill count.
- Pfizer moved to dismiss under Rule 12(b)(6) and to strike the nationwide class, arguing lack of plausible deception, failure to plead injury/causation/reliance, failure of negligent-misrepresentation and unjust enrichment claims, and preemption.
- The district court held plaintiffs failed as a matter of law to plausibly allege that a reasonable consumer would be misled given the unambiguous, prominent pill-count on the label, and also concluded plaintiffs could not meet CAFA’s amount-in-controversy requirement because they alleged no compensable injury.
- Conclusion: Motion to dismiss granted and case dismissed for failure to state a claim and lack of subject-matter jurisdiction under CAFA/amount-in-controversy principles.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether packaging was "likely to mislead" a reasonable consumer | Plaintiffs: package size created an expectation the container would be filled; consumers relied on size rather than label pill-count | Pfizer: pill-count is clearly and prominently labeled; reasonable consumers would read the label and not be misled by package size | Court: Dismissed — as a matter of law reasonable consumers would not be misled given the clear pill-count; claims implausible |
| Whether plaintiffs adequately alleged reliance, causation, and injury | Plaintiffs: reliance on package size caused purchase and injury | Pfizer: plaintiffs received the quantity listed; no actual injury or reliance on a misrepresentation | Court: Dismissed — plaintiffs admitted they received the number of pills listed; no actionable injury or reasonable reliance |
| Whether negligent misrepresentation and unjust enrichment claims survive | Plaintiffs: packaging practice supports these claims | Pfizer: legal elements unmet because no misrepresentation or injury | Court: Dismissed — underlying deception claim fails, so these ancillary claims fail |
| Whether CAFA diversity jurisdiction exists (amount in controversy) | Plaintiffs: invoked CAFA to bring nationwide class | Pfizer: plaintiffs cannot meet the $5M amount-in-controversy because no compensable damages alleged | Court: Dismissed for lack of subject-matter jurisdiction — plaintiffs cannot show damages to meet CAFA threshold |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (application of plausibility pleading standards)
- St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283 (amount-in-controversy legal certainty rule)
- Fink v. Time Warner Cable, 714 F.3d 739 (reasonable-consumer standard in consumer protection claims)
- Freeman v. Time, Inc., 68 F.3d 285 (reasonable-consumer objective test)
- L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (court may dismiss implausible consumer claims; rejecting conclusory allegations)
- Haskell v. Time, Inc., 857 F. Supp. 1392 (standing for "non-actionable puffery" in packaging claims)
- Prohias v. Pfizer, Inc., 485 F. Supp. 2d 1329 (no actionable injury where plaintiff received what was bargained for)