Kaye Scholer Secures Second Win in Attempted Class Actions Over Birth Control Packaging

Los Angeles — Kaye Scholer achieved a victory for clients Vintage Pharmaceuticals and Endo Pharmaceuticals Holdings by securing a denial of a plaintiff’s motion for class certification and a partial grant of summary judgment. This is the second victory secured in recent months in cases involving allegedly improperly packaged birth control pills.

In Federman v. Qualitest, Los Angeles Superior Court of the State of California, plaintiff Samantha Federman had just finished taking a three-month supply of Gildess, which in September 2011 was the subject of a nationwide, voluntary, retail-level recall because two pharmacists reported that two customers were dispensed improperly packaged oral contraceptives.

When she was notified by her CVS pharmacy about the voluntary recall, Federman had already discarded the packaging for previously taken pills so she had no way of knowing whether or not her particular packaging was defective. She then took a home pregnancy test, which was negative. Federman sued to recover the money she spent on the product and on the pregnancy test.

California state court Judge John Shepard Wiley Jr. found in favor of Kaye Scholer’s clients, agreeing that the plaintiff presented no evidence demonstrating that anyone in California, including Federman, was ever dispensed an improperly packaged oral contraceptive. Indeed, Judge Wiley characterized the “product error rate” as “vanishingly small” and described Federman’s case as a “consumer class action . . . about a nonexistent consumer problem.” Ultimately, because Judge Wiley concluded that individual issues would overwhelm any advantage of class action treatment, the Court denied class certification.

The Court also granted summary judgment to the defendants on Federman’s negligence and breach of warranty claims.

“The Court commended Vintage for acting promptly in effecting the recall, and rightly denied class certification because Federman was not dispensed an improperly packaged product and an individualized inquiry would be required to determine whether any class member received an improperly packaged product,” said Kaye Scholer’s Angela Vicari, who along with Product Liability Partners Robert Barnes and Pam Yates, and Associate Alicia Clough, led the team advising Vintage and Endo.

In August, 2012, Kaye Scholer secured the dismissal of a putative class action for Endo and Vintage Pharmaceuticals, in a similar case alleging improper packaging of a different birth control product that was part of the same recall.