July 13, 2016
On July 6, 2016, Weil secured a significant victory for Sanofi when an Illinois federal court granted the dismissal, without prejudice, of all claims in a putative consumer class action relating to Sanofi’s epinephrine injection product, Auvi-Q.
Plaintiff filed her complaint following a global recall by Sanofi of its Auvi-Q product, which is used to treat life-threatening allergic reactions. As part of its recall, Sanofi offered to reimburse any patient who had to incur out-of-pocket costs to replace his or her Auvi-Q device with another epinephrine injector. Plaintiff asserted that Sanofi’s Auvi-Q recall was a deceptive act or trade practice and unjustly enriched Sanofi, in violation of the Illinois Consumer Fraud Act (ICFA).
In an order granting Sanofi’s motion to dismiss, Judge John W. Darrah first addressed plaintiff’s ICFA claim, finding that plaintiff failed to state a claim that Sanofi’s recall was unfair, and that plaintiff failed to even allege intent by Sanofi for her to rely on the allegedly unfair practice – thereby not satisfying two necessary requirements under the ICFA. Importantly, Judge Darrah highlighted Sanofi’s offer “to provide full reimbursement for a new epinephrine injector as well as any difference between the costs of their injector and the replacement injector” as evidence against “oppressive conduct” under the ICFA, because such an offer did not deprive the plaintiff of a meaningful choice.
Turning to plaintiff’s unjust enrichment claim, Judge Darrah granted the dismissal as well, applying controlling case law that mandates that “[I]f an unjust enrichment claim rests on the same improper conduct alleged in another claim, then the unjust enrichment claim will be tied to this related claim ̶ and, of course, unjust enrichment will stand or fall with the related claim.”