Charlene Eike, et al v. Allergan, Inc., et al

Filing

Filed opinion of the court by Judge Posner. The grant of class certification is VACATED and the case is REMANDED with directions to dismiss the suit with prejudice. William J. Bauer, Circuit Judge; Richard A. Posner, Circuit Judge and Diane S. Sykes, Circuit Judge. [6823507-1] [6823507] [16-3334]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3334
CHARLENE EIKE, et al., on behalf of themselves and all others
similarly situated,
Plaintiffs-Appellees,
v.
ALLERGAN, INC., et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:12-cv-01141-SMY-DGW — Staci M. Yandle, Judge.

____________________
ARGUED FEBRUARY 7, 2017 — DECIDED MARCH 6, 2017
____________________
Before BAUER, POSNER, and SYKES, Circuit Judges.
POSNER, Circuit Judge. The defendants appeal from an order certifying eight classes (which for simplicity we’ll pretend are just one class), consisting of persons in Illinois and
Missouri who take eye drops manufactured by six pharmaceutical companies—the defendants in the case—for treatment of glaucoma. The claim is that the defendants’ eye
drops are unnecessarily large, in violation of the Illinois

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Consumer Fraud Act, 815 ILCS 505/1 et seq., and the Missouri Merchandising Practices Act, Mo. Rev. Stat. §§ 407.010
et seq., because each eye drop exceeds 16 microliters (equal to
a tenth of one percent of a tablespoon), and the class contends that the optimal size of an eye drop for treatment of
glaucoma is 16 microliters, no more. In places it says that
drops as small as 5 microliters would be safe, but its claim is
merely that anything larger than 16 microliters is wasteful
because, it contends, the additional microliters add no therapeutic value.
The difference between the price per drop of the eye
drops at their present size, and the presumably lower price if
the drops were smaller, multiplied by the number of drops
that have been bought by the members of the class, are the
damages the class is seeking.
Yet it does not argue that the price of the current eye
drops is a result of collusion, whether tacit or express,
among the defendants; this is not an antitrust case. Nor is
there any allegation of misrepresentation. The argument is
only that the price of the eye drops is excessive because a
smaller drop, costing less to produce and (especially) to
package, could be sold at a lower price yet still cover the
producers’ costs, and therefore the only benefit of the larger
drop is to the producers’ profits, which is why, the class argues, the producers are not motivated to make the change.
This assumes that profits would decline if the defendants
switched to selling the smaller, cheaper-to-produce eye
drops. But that’s far from certain; lower prices might result
in greater sales and as a result higher rather than lower profits.

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The class further alleges that the large eye drops have a
higher risk of side effects—but does not explain what the
side effects are—and are more likely to be used up faster. Yet
there is no claim that members of the class have experienced
side effects from the large drops, or have been harmed because they ran out of them early (on the theory that the larger the drops the fewer there are in each bottle). Unsurprisingly, therefore, the only damages sought are for the “pocketbook” injury of paying what the class contends to be an
unnecessarily high price for the defendants’ eye drops because of the size of those drops.
Given the lack of any suggestion of collusion by the defendants either with each other or with other producers (if
there are other producers) of eye drops for treatment of
glaucoma, or of any claim that the defendants misrepresent
the quality of their product, we are asked to decide a case
based simply on dissatisfaction with a product made by
multiple firms, or with its price. Suppose the class members
all happened to own pedigreed cats, and the breeders who
had sold the cats to the class members had told them that as
responsible cat owners they would have to feed the cats kibbles during the day and Fancy Feast at night and buy a fountain for each cat because cats prefer to drink out of a fountain (where gravity works for them) rather than out of a
bowl (where gravity works against them) and they don’t like
to share a fountain with another cat. And suppose the buyers do as told, buying what they are told to buy from pet
stores, but it turns out that the cats have large appetites, the
cat food is quite expensive, and the fountains are expensive
and not wholly reliable. The breeders had made no misrepresentations, concealed no information, answered all questions of prospective buyers truthfully. Nevertheless many of

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the buyers are dissatisfied. They think—maybe correctly—
that the cat food is needlessly expensive and the fountain a
fragile luxury. Yet would anyone think they could successfully sue the breeders? For what? The breeders had made no
misrepresentations. Had a prospective buyer asked one of
the breeders what the annual cost of maintaining the cat
would be, the breeder would, let’s assume, have given him a
realistic estimate. There would be disappointment in the example given, but no cause of action.
It’s the same here. The only eye drops sold by the defendants for the treatment of glaucoma are larger than 16
microliters. There are reasons for this, or so the defendants
argue. Each eye drop consists mostly of inactive ingredients;
the active pharmaceutical ingredient that is what treats the
glaucoma is only about 1 percent of the drop, and only 1 to 7
percent of that ingredient crosses the cornea into the eye itself, where it can exert its therapeutic effect. The amount of
fluid the eye can hold without overflowing varies from person to person and, the defendants assert, often exceeds 16
microliters. The smaller the drop, therefore, the weaker its
likely therapeutic effect for patients whose eyes could have
absorbed a larger drop. In addition, elderly patients, patients
with unsteady hands, and patients who already have serious
eye problems, often have trouble getting eye drops into their
eyes, and the smaller the drop the likelier they are to miss.
The defendants’ large eye drops have been approved by
the Food and Drug Administration (FDA)—in other words
have been determined to be safe and effective for treatment
of glaucoma. That doesn’t exclude the possibility that a
smaller drop would be as or even more effective, and also
cheaper. But those are matters for the class members to take

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up with the FDA. See 21 C.F.R. § 10.30. A court can review a
determination by the FDA, but it cannot bypass the agency
and make its own evaluation of the safety and efficacy of an
unconventionally sized eye drop for treatment of glaucoma.
Not that the class members are likely to get far with the
FDA. They don’t want the agency to rescind its approval of
the large drops—they don’t argue that the large drops are
unsafe or ineffective. They just want the defendant companies to start manufacturing smaller drops. But the agency
can’t force a private company to manufacture a product the
company doesn’t want to make—all it can do is approve or
disapprove drugs that a company does make.
Even supposing it were demonstrable that a smaller eye
drop would be more effective and cheaper than the ones
manufactured by the defendants, the class members would
have no cause of action. You cannot sue a company and argue only—“it could do better by us”—which is all they are
arguing. In fact, such a suit fails at the threshold, because
there is no standing to sue. One cannot bring a suit in federal
court without pleading that one has been injured in some
way (physically, financially—whatever) by the defendant.
That’s what’s required for standing. The fact that a seller
does not sell the product that you want, or at the price you’d
like to pay, is not an actionable injury; it is just a regret or
disappointment—which is all we have here, the class having
failed to allege “an invasion of a legally protected interest.”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
And so the grant of class certification is vacated and the
case remanded with directions to dismiss the suit with prejudice.