Plaintiff Demands Class Certification in Rite Aid ‘Rapid Release’ Pain Killer False Advertising Class Action

A Rite Aid customer suing the company over its “rapid release” pain killers called on a federal judge to certify a Class in his California class action lawsuit against the drugstore giant on Thursday.

Thomas Bailey, the lead plaintiff in the class action, argued that his legal response to Rite Aid’s falsely advertised speed of release for its home brand painkillers could affect many other consumers — and therefore be resolved Class-wide.

Represented by Adam A. Edwards of Greg Coleman Law, Bailey urged U.S. District Judge Yvonne Gonzalez Rogers to certify the Class in a virtual hearing, Law 360 reported.

Bailey filed the lawsuit in 2018, alleging that Rite Aid’s store brand acetaminophen rapid release gels don’t release as quickly as claimed. In fact, they release slower than standard acetaminophen. His class action lawsuit says the pain killer is marked as comparable to Tylenol brand rapid release acetaminophen. However, Rite Aid’s store brand product does not have the same laser-drilled holes as Tylenol’s gel, which allegedly enables the medication to release more quickly.

Rite Aid is challenging the certification, saying through counsel Jay N. Varon of Foley & Lardner LLP that the Class needs to provide evidence of its claims against the company. Varon cited a case where a federal judge refused to certify a Class in similar litigation over product labeling due to lack of evidence, Law 360 said.

The attorney representing Bailey’s call for Class certification cited a class action lawsuit against Kellogg’s in return in which the judge did certify the Class in the labeling dispute. Edwards said certification should be determined by whether deception could be proved using common evidence, and the merits of the claim should be resolved at trial, Law 360 stated.

Judge Gonzalez Rogers said she would review the opinions of both lawyers, but was skeptical as the arguments cited were made by judges at the same level as her, according to Law 360. She said the Ninth Circuit was the appropriate controlling authority.

The class action lawsuit against Rite Aid argues that the drugstore chain used the phrase “rapid release” because it can attract consumers and that the company copied Tylenol products’ marketing without having the same results. 

In response to the plaintiff’s argument, Rite Aid’s attorney argues that a customer survey by a Rite Aid expert shows the majority of consumers did not compare Rite Aid’s products to any others.

Judge Rogers said she had concerns about experts cited by both parties, but she still took the arguments under submission, Law 360 stated. “I will continue to work through this,” she said. “I’m not exactly sure where I’ll come out.”

Similarly, Johnson & Johnson is currently facing a class action over its Tylenol Rapid Release Gels, which alleges the pills work slower than regular versions of the painkiller.

This is not the first time in recent events that Rite Aid has faced legal action. The drugstore chain is facing a separate class action lawsuit that alleges the company has been preying on parents’ fears, tricking them into paying three times more than they need to for infant pain relievers.

Have you used Rite Aid rapid release pain killers? Let us know in the comments section!

Bailey is represented by Mitchell M. Breit of Simmons Hanly Conroy LLC and Adam A. Edwards of Greg Coleman Law.

Rite Aid is represented by Jay N. Varon and Eileen Ridley of Foley & Lardner LLP.

The Rite Aid Rapid Release Class Action Lawsuit is Bailey v. Rite Aid Corp., Case No. 3:18-cv-06926, in the U.S.

Read About More Class Action Lawsuits & Class Action Settlements:

• Rite Aid Class Action Lawsuit Says Infant Pain Reliever Is Mislabeled
• Rite Aid Class Action: Insured Customers Overcharged for Generic Drugs
• Recall Alert: Pain & Fever Reliever Acetaminophen Recalled From Health Kits