Kroger class action lawsuit dismissed

Kroger class action overview:

• Who: An Illinois federal judge has dismissed a class action against Kroger.
• Why: The judge approved the request of plaintiffs to dismiss their lawsuit alleging Kroger sold faulty pain patches. 
• Where: The Kroger class action was filed in an Illinois federal court.

An Illinois federal judge has agreed to throw out a class action lawsuit alleging Kroger pain patches aren’t effective as they say they are. 

On Nov. 8, United States District Judge Matthew F. Kennelly ruled to approve the request of two plaintiffs who asked to drop their lawsuit against supermarket chain Kroger over alleged issues with the effectiveness of its lidocaine patches. 

The pain patch class action, filed by Shannon Hunt and Lanette Johnson, initially sought class action status but was denied certification last month. That decision ultimately led to a complete dismissal of the consumers’ individual claims with prejudice.

The lawsuit argued that Kroger’s lidocaine pain patches could not remain attached to the body long enough to deliver the advertised “up to eight hours” of pain relief. 

However, on Nov. 8, Kennelly found the plaintiffs ineligible to represent the proposed class because neither had purchased the specific patches claimed to provide eight hours of relief. 

Patches purchased by plaintiffs did not feature packaging claiming 8 hours of relief

Kennelly’s ruling noted that Hunt and Johnson’s purchases at Mariano’s stores — a subsidiary of Kroger — featured different packaging that did not promise a specific duration of relief. Instead, the packaging at Mariano’s advised users to “use one patch for up to 12 hours,” without an explicit relief guarantee.

Following the judge’s ruling against class certification, both parties notified the court that the plaintiffs intended to drop their class allegations and dismiss the case.

 Soon after, Hunt and Johnson filed an amendment formally withdrawing their claims. 

The dispute initially began with a lawsuit filed by Chicago resident Tiffany Agee in September 2022, with Hunt and Johnson later named as plaintiffs. 

Both alleged that Kroger’s pain patches failed to deliver the promised “maximum strength” relief, as they frequently peeled off after just a few minutes of use. However, Kennelly ultimately ruled that the product’s inconsistent packaging across Kroger and Mariano’s locations weakened the class’s grounds for certification. 

Meanwhile, last month, consumers filed class action lawsuits against grocery store companies Harris Teeter, Albertsons, Kroger and Food Lion alleging the companies falsely advertised cereal bars as naturally flavored when the products contained the synthetic form of malic acid, DL-malic acid. 

What do you think of the judge’s decision in this pain patch class action? Let us know in the comments.

The consumers are represented by Spencer Sheehan of Sheehan & Associates PC. 

The Kroger class action is Tiffany Agee v. The Kroger Co.,  Case No.  1:22-cv-04744, in the U.S. District Court for the Northern District of Illinois.

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