Walgreens class action over lidocaine pain patches can’t be arbitrated

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Update: 

• A federal judge in Illinois denied Walgreens’ request for arbitration in a lawsuit claiming it misled consumers by labeling its lidocaine pain relief patches as “maximum strength.” 
• U.S. District Judge Mary Rowland ruled Walgreens waived its ability to enforce an arbitration clause when the company engaged in discovery to litigate the complaint after failing in an effort to get a full dismissal last March. 
• Judge Rowland trimmed some fraud and warranty-breach claims from the class action lawsuit at that time.
• Walgreens argued it attempted to compel arbitration as early as possible and only waited so it could determine whether the consumer behind the complaint agreed to arbitrate disputes when signing up for its loyalty program.
• Judge Rowland ruled Walgreens had enough information about the consumer as far back as April 2022, when she and her since-dismissed co-defendant filed their first amended complaint.

Walgreens lidocaine maximum strength class action lawsuit overview: 

• Who: Tam Dang filed a class action lawsuit against Walgreens Co. 
• Why: Dang claims Walgreens misrepresents its lidocaine patches as “maximum strength.”
• Where: The class action lawsuit was filed in Illinois federal court.

(Jan. 14, 2022)

Walgreens labels its lidocaine patches as “maximum strength” despite them containing less lidocaine by percentage than of competing brands, a new false advertising class action lawsuit alleges.

Plaintiff Tam Dang claims Walgreens lidocaine patches contain only 4% lidocaine compared to 5% from at least one competitor, meaning they can’t be “maximum strength” as the company represents. 

Dang wants to represent a multistate class and California subclass of consumers who have purchased Walgreens “maximum strength” lidocaine patches for personal, family or household purposes. 

The plaintiff argues the perceived strength of a product is important to consumers looking for pain relief when making purchase decisions. 

Further, Dang claims consumers are willing to pay more for products they believe have high doses. 

“Defendant sells and distributes the Products employing a marketing and advertising campaign centered around claims that appeal to consumers who Defendant knows seek out strong and/or maximum doses of lidocaine to relieve their back pain and aches,” the lawsuit states.

Walgreens makes ‘maximum strength’ claims in ‘deceptive manner,’ plaintiff claims

Dang claims Walgreens makes the “maximum strength” representations in a “knowingly false and deceptive manner,” since it knows its product contains only 4% lidocaine. 

Consumers, meanwhile, “lack the scientific knowledge” to determine the strength of the products or if they truly are “maximum strength” as Walgreens claims. 

“Reasonable consumers must and do rely on manufacturers, like Defendant, to be transparent and properly disclose on the packaging all material information regarding the Products and their dose and strength,” the class action lawsuit states.

Dang claims Walgreens is guilty of fraud and unjust enrichment, and in violation of multiple state consumer fraud acts and California’s False Advertising Law, Unfair Competition Law and Consumer Legal Remedies Act. 

A consumer filed a separate class action lawsuit against Walgreens earlier this month, claiming the company mislabels its over-the-counter cough medicines as non-drowsy. 

Have you purchased a lidocaine product from Walgreens labeled as “maximum strength”? Let us know in the comments.

The plaintiff is represented by Kevin Laukaitis and Jonathan Shub of Shub Law Firm LLC; Melissa K. Sims, Nick Suciu III and Russell Busch of Milberg Coleman Bryson Phillips Grossman PLLC; and Charles E. Schaffer and David C. Magagna Jr. of Levin, Sedran & Berman LLP. 

The Walgreens maximum-strength lidocaine false advertising class action lawsuit is Dang v. Walgreens Co., Case No. 1:22-cv-00177, in the U.S. District Court for the Northern District of Illinois.

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