Whalen v Pfizer, Inc.

[*1] Whalen v Pfizer, Inc. 2005 NY Slip Op 51779(U) [9 Misc 3d 1124(A)] Decided on September 22, 2005 Supreme Court, New York County Lowe, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 22, 2005
Supreme Court, New York County

Kathleen Whalen, on behalf of herself and all others similarly situated,, Plaintiff,

against

Pfizer, Inc., Defendant.



600125/05

Richard B. Lowe, J.

Plaintiff Kathleen Whalen ("Whalen") moves, pursuant to CPLR 901, 902, and 904 for an order (1) determining that this action be maintained as a New York class action and (2) determining that defendant should bear the expense of notification under CPLR 904.

BACKGROUND

Plaintiff seeks class certification in this action for damages caused by defendants' alleged violations of General Business Law ("GBL") § 349 and for her common law claim of unjust enrichment.

Defendant Pfizer Inc. ("Pfizer") manufactures and markets Listerine Antiseptic Mouthrinse ("Listerine"). As has been indicated on its labels, Listerine has been accepted by the American Dental Association ("ADA") as safe and effective in reducing plaque and gingivitis.

Starting in June, 2004, Pfizer represented through its advertising that Listerine is "as effective as floss" and that this claim was "clinically proven." The use of floss is an effective measure in removing plaque between the teeth. Indeed, the ADA recommends brushing twice a day and cleaning between the teeth with floss or interdental cleaners once each day to remove plaque from all tooth surfaces. According to Johnson & Johnson, Inc. ("J&J"), a leading maker of dental flossing products, while 90% of Americans have dental floss at home, 63% report they do not floss as often as they should (see Smart Aff, Ex. 10). However, J&J points out that "in practice, nearly 90 percent do not floss as often as they should" (id.).

Pfizer launched an advertising campaign known as "Big Bang." These commercials included such statements as "Listerine's as effective as floss" and "[s]o even if you don't floss like you should, now you can get its healthy benefits from simply rinsing." They also incorporated the statement "floss daily" in small print. In August of 2004, a revised commercial was aired, with statements such as "Listerine's as effective as floss," "clinical studies prove it," and "[o]f course, you should floss but if you don't floss like you should, you can get floss' plaque-fighting benefits by rinsing" as part of the advertisement. In September of 2004, Pfizer aired a second revised commercial, essentially communicating the same message.

Print advertisements were also shown during the same period of time, printed with the [*2]statement, "Only Listerine Antiseptic is clinically proven to be as effective as floss" with the remainder of the sentence "at reducing plaque and gingivitis between the teeth" in smaller print. These print advertisements did not otherwise include substance regarding the use of floss.

On September 28, 2004, McNeil-PPC, Inc., a division of J&J, brought suit against Pfizer for, inter alia, violation of section 43(a) of the Lanham Act, 15 USC  1125(a), relating to the Listerine advertising campaign. A motion for preliminary injunction was granted against Pfizer, and the advertisements and labeling on Listerine bottles were accordingly changed. See McNeil-PPC, Inc. v Pfizer, Inc., __ F Supp 2d __, 2005 WL 23307 (SD NY, Jan. 6, 2005). Thereafter, Pfizer agreed to stop its advertising campaign.

On January 12, 2005, plaintiff brought this suit against Pfizer based on the same deceptive advertising campaign. Plaintiff, on behalf of herself and others similarly situated, now moves to certify a New York class action against Pfizer for violation of GBL  349 and for common-law unjust enrichment for false statements and misrepresentations in Pfizer's marketing and advertising communications. Plaintiff proposes to represent this action on behalf of herself and "all persons or entities who purchased Listerine during the period from June 1, 2004, through the present."

DISCUSSION

Plaintiff argues that all the prerequisites in certifying a class action under CPLR 901 have been satisfied and that the court should certify the class under CPLR 902. This court is reminded that although the class action statute is liberally construed and read to favor the maintenance of class actions (see Englade v HarperCollins Publishers, Inc., 289 AD2d 159 [1st Dept 2001]), failure to make a showing of any of the requisite elements for class certification will result in the denial of the motion for certification (see e.g. Reifen v Nationwide Leisure Corp., 75 AD2d 551 [1st Dept 1980]). The court appraises each of the five prerequisites in turn.

A.Numerosity

Plaintiff must first demonstrate that the members of the class are "so numerous that joinder of all members, whether or otherwise required or permitted, is impractible" (CPLR 901[a][1]). Here, there is no dispute between the parties as to this element, and, accordingly, the first requirement is met.

B.Commonality

The second prerequisite the plaintiff must satisfy is to show that there "are questions of law or fact common to the class which predominate over any questions affecting only individual members" (CPLR 901[a][2]). In determining whether the plaintiff has satisfied this requirement, the court looks at the plaintiff's causes of action and determines whether each common question of law predominates over individual issues.

1.GBL  349

The plaintiff alleges that Pfizer violated GBL  349 by falsely representing that Listerine was "as effective as floss." In turn, plaintiff claims that this issue is common to the proposed class in such a way that it predominates over any question affecting only individual members, and, as such, certification is warranted. Defendant argues that, because questions of whether the false advertisements influenced the reasonable consumer to purchase Listerine and whether there was actual damage to each individual predominate over the common question of law, certification should be denied. [*3]

To have a viable claim under GBL § 349, a plaintiff must allege that the defendant engaged "in an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof" (Small v Lorillard Tobacco Co., 94 NY2d 43, 55 [1999]; Solomon v Bell Atlantic Corp., 9 AD3d 49, 52 [1st Dept 2004]). Deceptive or misleading representations or omissions are defined as those likely to mislead a reasonable consumer acting reasonably under the circumstances (Solomon, 9 AD3d at 52). Nonetheless, the deceptive act or practice must be "the actual misrepresentation or omission to a consumer" (Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314, 325 [2002]), by which the consumer is "caused actual, although not necessarily pecuniary, harm" (Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, N.A., 85 NY2d 20, 26 [1995][emphasis added]). Thus, to prevail on a cause of action under GBL § 349, the plaintiff must show that the defendant made falsehoods or omissions that were likely to mislead a reasonable consumer in the plaintiff's circumstances, that s/he was deceived by those false statements or omissions and that, as a result, s/he was caused injury (Goshen, 98 NY2d at 325).

In turn, to satisfy the commonality requirement in a class action alleging deceptive acts and practices and false advertising, the proof must show that each plaintiff was reasonably deceived by the defendant's misrepresentations and was injured by reason thereof. The Court of Appeals has been clear that a plaintiff need not show that s/he relied on the misrepresentations in order to have a claim under GBL § 349 (Stutman v. Chemical Bank, 95 NY2d 24, 29 [2000][emphasis added], citing Small, 94 NY2d at 55-56; Oswego, 85 NY2d at 26). However, to assert a GBL § 349 claim, a plaintiff must allege that s/he was exposed to the alleged misrepresentations (Solomon, 9 AD3d at 52 [emphasis added]). Therefore, class certification is not appropriate where "questions of whether each individual was exposed to, and influenced by, the advertising would predominate" (Carnegie v H & R Block, 269 AD2d 145, 147 [1st Dept 2000], lv. dismissed 95 NY2d 844).

On its face, Whalen's claims do appear to have a semblance of commonality since they are based on allegations that the defendant engaged in a general pattern of fraudulent conduct. However, class certification is not appropriate where the plaintiff cannot point to any specific announcement or pronouncement that was seen by all class members (Solomon, 9 AD3d at 53). Indeed, during her deposition, Whalen, the proposed representative of the class, admitted that she could not identify any commercial which influenced her to purchase Listerine. Furthermore, in open court, she admitted that she could not recall seeing any of Pfizer's alleged deceptive marketing ads, and that she was unfamiliar with the actual suit pending before this court. Where it cannot even be established that the proposed representative of the class was exposed to the alleged advertisements, it is questionable how Plaintiff proposes to demonstrate that all members of the class saw the advertisements. Thus, questions of individual members' exposure to the allegedly deceptive advertising predominate.

Furthermore, proof of injury is essential to a GBL §349 claim. The court reiterates the point that while GBL § 349 "does not require proof of justifiable reliance, a plaintiff seeking compensatory damages must show that the defendant engaged in a material deceptive act or practice that caused actual, although not necessarily pecuniary, harm" (Small v Lorillard, 252 AD2d 1, 7 [1st Dept 1998][emphasis added], quoting Oswego, 85 NY2d at 26).

In this matter, each of the claims would require individualized proof concerning the various bases for liability and damages. First of all, though a reasonable individual could presumably be misled by the defendant's misrepresentations, the plaintiff has failed to demonstrate how defendant's [*4]false advertisement caused her actual harm. Indeed, it is undisputed that Whalen, who has been a regular user of the product for at least five years, continues to use Listerine after Pfizer's marketing effectively ended (see Smart Aff, Ex. 46). Furthermore, she continues to use floss without any change to her routine (id.). Finally, Whalen points out that she has not even seen the advertisements (id.). If anything, this only shows that Whalen was a consumer acting reasonably under the circumstances by being loyal to product brand, whether or not the marketing campaign was truthful or fraudulent (see Oswego, 85 NY2d at 26). Though the court agrees with the plaintiff that there is no need to show reliance on the misrepresentation, the plaintiff must still show actual harm. Plaintiff has not done so.

Further, assuming that individual plaintiffs purchased Listerine after being exposed to the ads, discontinued flossing, and suffered harm as a result, the extent of that harm and the correct measure of damages would require separate hearings. These plaintiffs would have to be distinguished from those plaintiffs who never used floss or flossed improperly so as to not get its benefits, and thereby could not have been injured as a result of using Listerine after seeing the ad. There may also likely be plaintiffs whose only harm was the purchase of the product after being exposed to the advertisements. Proof of purchase would be difficult given the unlikeliness that many of these plaintiffs maintained a receipt of purchase. If this court were to certify the class, an individual inquiry would be necessary to determine whether each plaintiff was actually harmed due to the deceptive acts of the defendant. Here, the question of violation of GBL  349 as common to the class does not prevail over questions affecting only individual members. As such, the plaintiff fails to demonstrate commonality as to the GBL  349 claim.[FN1]

2.Unjust Enrichment

Having failed to establish that the common issue of violation of GBL  349 predominates over individual questions, plaintiff must show that the defendant was unjustly enriched by the false advertising and that this common issue of law surmounts individual questions. Again, plaintiff fails to demonstrate that this cause of action surpasses individual issues of law or fact.

In order to find that there was unjust enrichment on the part of the defendant, the plaintiff must show that: (1) the other party was enriched, (2) at that party's expense, and (3) that it "is against equity and good conscience to permit [the other party] to retain what is sought to be recovered" (Citibank, N.A. v Walker, 12 AD3d 480, 481 [2d Dept 2004], quoting Paramount Film Distributing Corp. v State, 30 NY2d 415, 421 [1972]). However, if the plaintiff, acting with knowledge of the facts, pays for the product and continues to use the product, there is no unjust enrichment and recovery is barred (see Dillion v U-A Columbia Cablevision, 100 NY2d 525 [2003]).

Again, while on its face Whalen may have a cause of action, plaintiff does not show that commonality dominates over personal questions of liability and damages. Here, while Pfizer has [*5]profited from the sales of Listerine at the expense of the consumers, the plaintiff fails to explain how Pfizer was unjustly enriched by the sale of Listerine or how it is against equity to permit Pfizer to retain what is sought to be recovered. For one, the plaintiff does not indicate what type of damages the plaintiff is seeking. Indeed, while the plaintiff supplies the court with different methods and various calculations to estimate and determine damages (see Browne Aff.), the plaintiff fails to sufficiently explain what unjust enrichment Pfizer has actually derived from its sales of Listerine and what the plaintiff is entitled to recover. Furthermore, the plaintiff concedes that she has no evidence that Pfizer increased the price of Listerine before, during, or after the alleged false advertisements were made or otherwise received any inequitable financial gain from the product. In addition, the court notes that the plaintiff continues to use Listerine as her daily mouthwash, and will probably do so throughout this litigation. Even with knowledge of the misrepresentation, the plaintiff continues to purchase and utilize Listerine as part of her daily dental regime. Accordingly, the plaintiff is barred from claiming unjust enrichment.

In turn, the plaintiff has not succeeded in demonstrating that this issue is common to all the class members and that it predominates over individual issues of law or fact. Again, the court would need to make an extensive inquiry into whether or not there was enrichment on the part of the defendant by individual class members. More importantly, the court would need to conduct an individualized inquiry into whether the class, acting with knowledge of the misrepresentations made by Pfizer, continued to purchase Listerine for their use. These individualized interrogations would predominate the issue common to the class, and, as such, does not allow the court to find commonality.

Because the plaintiff has failed to demonstrate that there are common issues of law or fact that predominate over any questions affecting only individual members, the court finds that plaintiff has not fulfilled the prerequisite requiring commonality pursuant to CPLR 901(a)(2).

C.Typicality

The third requirement for certification of a class action is that "the claims or defenses of the representative parties are typical of the claims or defenses of the class" (CPLR 901[a][3]). Plaintiff argues that her claims are typical of the claims of the class to be certified. The defendant contends that because the plaintiff has admitted that she "did not recall seeing" any of the commercials at issue, her claims are "atypical" and, thus, does not satisfy the third element for a class action.

In an action based on alleged misrepresentations, a named plaintiff's claims are atypical of a class if s/he did not rely on, or even see, these misrepresentations (Small, 252 AD2d at 10, quoting Vermeer Owners, Inc. v Guterman, 169 AD2d 442, 443 [1st Dist 1991]).

Here, plaintiff has failed to show that her claims are typical of the claims of the class. While other proposed plaintiffs may have seen the advertisements, Whalen has not presented evidence that she relied on, or has even seen, these misrepresentations in her purchase of Listerine. Without reproducing the facts as articulated above, it is sufficient to point out that Whalen purchased the mouthwash long before Pfizer advertised that Listerine was "as good as flossing," continued to use the mouthwash during the time the marketing campaign was advertised to the public, and continues to use the mouthwash. Further, the plaintiff continues to utilize floss in addition to Listerine, and has not shown that she had done anything differently before or after the commercials and advertisements were used. Finally, the plaintiff does not recall seeing the advertisement or the marketing materials that were in the public during the period of time for which the class is being [*6]certified. This shows that the plaintiff did not see the commercials. Indeed, her claims are not typical of the claims the rest of the class would have, given that they would have at least seen the advertisements which contained defendant's alleged false representations.

Accordingly, the plaintiff has failed to demonstrate that her claims are typical of the claims of the class, and fails to satisfy the third requirement for class certification under CPLR 901(a)(3).

D.Representative Party

The fourth requirement for certification of a class action is the necessity of a representative party that "will fairly and adequately protect the interests of the class" (CPLR[a][4]). The defendant argues that the plaintiff could not and would not represent the interests of the class because she had not seen the advertisements nor was damaged by these misrepresentations. Whalen reasons that because she has knowledge of the overall nature of the claims at issue, the plaintiff would adequately represent the class in this action. She cites Brandon v Chefetz (106 AD2d 162 [1st Dept 1985]) for the preposition that she is "certainly qualified to act as a class representative"because she "has a general awareness of the claims." The court rejects plaintiff's argument.

In Brandon, the Appellate Division reversed the lower court's decision not to certify a class action because the court found that the plaintiff could adequately represent the class of shareholders against the officers of a corporation (id. at 165-166). There, plaintiff stockholders sued defendants for dominating and controlling the affairs of the corporation, transferring the value of stock from the shareholders to the defendants, and for breach of fiduciary duty (id. at 163-164). The court reasoned that, "in a sophisticated commercial case" such as that in Brandon, it was "not reasonable to expect that a layman . . . would have detailed knowledge of the matters at issue" (id. at 170).

Here, the issues are misrepresentation by the defendant that Listerine is "as good as flossing" and the alleged unjust enrichment gained by Pfizer, not the "sophisticated commercial case" plaintiff seems to advocate. Unlike in Brandon, the court finds that it would be reasonable here for the plaintiff to have detailed knowledge of the matters at issue, namely, that Pfizer misrepresented the effectiveness of its product and that there was injury caused to the proposed class. The plaintiff has not seen the advertisements, had not shown that she suffered actual injury, continues to utilize the product, and does not even purport to speak for the class (see Smart Aff, Ex. 46). Furthermore, as gleaned from her deposition, plaintiff is unaware of the issues in this case and has not shown that she would be an adequate agent to the class. For instance, she does not know who the members of the class action are (id.). Further, she does not know what is involved in a class action, other than being generally cognizant that she represents a class (id.). Finally, the court questions whether the named plaintiff even has a general awareness of the action at bar.

The plaintiff has not shown that she will fairly and adequately protect the interests of the class and, accordingly has failed to satisfy the representative party requirement under CPLR 901(a)(4).

E.Superiority of Action

The fifth and final prerequisite to certification of a class action is the demonstration that the "class action is superior to other available methods for the fair and efficient adjudication of the controversy" (CPLR 901[a][5]). Here, plaintiff fails to present the superiority of the class action to other accessible methods.

The superiority requirement for a class action, similar to the commonality prerequisite, allows access to the courts for a group of plaintiffs who individually have claims and injuries common to [*7]the group, and the class provides equitable and effective determination of the controversy. "The essence of [the superiority] requirement . . . is that in every instance where class treatment is sought, the proponent of the class must persuade the court that the provisions of Article 9 will serve their appropriate function in the particular situation and that the class suit is the best method of vindicating the rights of the members of the class." 2 Weinstein-Korn-Miller, NY Civ Prac § 901.19, 9-67. After all, the class action is "a means of inducing socially and ethically responsible behavior on the part of large and wealthy institutions which will be deterred from carrying out policies or engaging in activities harmful to large numbers of individuals" (Friar v Vanguard Holding Corp., 78 AD2d 83, 94 [2d Dept 1980]). Without the benefit of the class action, these institutions could act with impunity in such matters "since, realistically speaking, our legal system inhibits the bringing of suits based upon small claims" (id.). Nonetheless, in determining superiority, judicial resources must be taken into consideration, especially where conducting individual inquiries would render the litigation "extremely difficult if not impossible to manage, and an inefficacious means of adjudicating any underlying common issue" (see Gordon v Ford Motor Co., 260 AD2d 164, 165 [1st Dept 1999]).

Here, as with any proposed class action, the effects would induce the "socially and ethically responsible behavior on the part of" Pfizer. It is also foreseeable that plaintiff's cause of action and damages will be a small claim, as it would be with members of the proposed class. The court agrees with the plaintiff that the class action would be superior over other forms of litigation to adjudicate the rights of the class had the plaintiff adequately shown that there were common issues of fact or law that predominated over individual questions of fact. However, the court is not convinced that class suit is the best method of vindicating the rights of the members of the class in this circumstance, especially where judicial resources are taken into consideration. Because the court would need to conduct extensive inquiry into the lives of individual members of the class in order to access injury and damages, it would be inefficacious and difficult to manage the litigation, and is not an appropriate use of judicial economy. The use of the class action is not, as such, superior to other available methods.

Thus, the plaintiff has failed to show that the class action is the superior method over other available methods to litigation pursuant to CPLR 901(a)(5).

CONCLUSION

Based on the reasoning set forth above, the court finds that the plaintiff has failed to satisfy each of the prerequisites pursuant to CPLR 901 to certify a class action for violation of GBL  349 and for the common-law claim of unjust enrichment. Accordingly, plaintiff's motion for class certification under CPLR 902 is denied.

Dated: September 22, 2005

ENTER:

____________________________

RICHARD B. LOWE, III, J.S.C. Footnotes

Footnote 1: The plaintiff, during oral argument and in her presentation of papers, strenuously argues that the decision in Cox v Microsoft (Sup. Ct., Jul. 29, 2005) granting class certification is persuasive authority and similar to this case. She argues that Cox stands for the proposition that the only requirement to show commonality under GBL  349 is that the statement itself was misleading, and not that she was misled. The decision in Cox is not only inapposite, but is misinterpreted. That case dealt with alleged anti-competitive conduct by Microsoft with its Windows operating systems, where plaintiffs alleged actual harm due to inflated prices and denial of a choice of products as a result of the conduct. In this case, there is no such assertion of actual harm. As the court in Cox aptly points out, "deception does not, in and of itself, constitute an injury" (see also Small, 94 NY2d at 56-57).