Hey, District Court Judges Can Feel Frisky Too!

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Donnett Hickson,
Legal Staff Writer

This past week, U.S. District Court Judge Richard Posner struck down certification of a class action involving eye drops that were too large for the plaintiffs’ eyes, and, well, pedigreed cats…?

The case involved 33 plaintiffs who claimed that eye drops they purchased for treatment of glaucoma were unnecessarily large for their eyes. They argued that they were being forced to overpay for a treatment that could have been reduced to a much smaller and more economical size.

Judge Posner ruled that the aforementioned claims did not constitute any “actionable injury.” He further elaborated that “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.” To elucidate his decision, he felt that a metaphor concerning fancy cats was pertinent to his cause.

In his decision, of few but quite frisky words, he wrote:

“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 kibble during the day, 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. Then suppose the food got expensive, and the fountains didn’t work. The owners became dissatisfied. Yet would anyone think they could successfully sue the breeders? For what? The breeders had made no misrepresentations. The owners might be disappointed, but they have no case.”

Ultimately, the plaintiffs failed to even allege any collusion or misrepresentation by the defendants, nor did they suggest the eye drops were unsafe. All they had to bring to the table was regret and disappointment. This ruling also reversed a 2016 class certification decision that involved eight additional classes of Illinois and Missouri consumers on the grounds that they, too, lacked standing by failing to assert any degree of harm.

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