DTO Law Secures Dismissal of Class Action Lawsuit Against Walgreens

DTO Law notched a crucial victory on behalf of clients Walgreens Boots Alliance, Inc. and Walgreen Co. (“Walgreens”) in a putative class action filed in the Northern District of California.

Plaintiff Brigette Lowe filed a class action against Walgreens, alleging Walgreens was charging women a “pink tax” with respect to its Walgreens-brand Minoxidil (generic Rogaine) products. Walgreens’ product is called Women’s Minoxidil and is labeled “Foam for Women.” Walgreens’ men’s Minoxidil product says “Not for use by women.” Plaintiff alleged the packaging/labels were therefore deceptive/misleading under California law because they led consumers to believe the women’s product was formulated especially for women. Plaintiff also alleged that charging more for women’s minoxidil constituted gender-based price discrimination in violation of the Unruh Civil Rights Act.

The case presented two issues of first impression, and the firm prevailed on both.

First, the firm defeated the labeling claims (that “Foam for Women” misled consumers into believing the product was specially formulated for women) with a preemption defense. Minoxidil is one of only a handful of over-the-counter (OTC) drugs that is regulated exactly like prescription drugs. Generic (prescription) drugs have an FDA-imposed “duty of sameness” requiring them to mirror the labels of brand-name products, thereby making it impossible for a generic drug manufacturer to comply with both federal law (requiring labels to “match” the brand name) and any state law imposing a non-identical requirement (i.e., one that would require a change to the label to avoid a charge of false advertising). Without a declarant to walk the judge through Minoxidil’s regulatory process and the FDA requirements, DTO carefully crafted a motion to dismiss relying upon legal argument and, to provide the information regarding Minoxidil, key materials that were judicially noticeable. While Plaintiff argued other similar cases involved “failure to warn” claims, not false advertising-type claims presented here, DTO demonstrated in its moving papers that the “duty of sameness” applied regardless of the type of claim at issue.

Second, the firm defeated the pricing claim asserted under the Unruh Civil Rights Act by arguing the Unruh Act’s prohibitions did not extend to “goods.” DTO’s motion relied on (a) statutory construction principles, arguing the bill did not include “goods” along with services, accommodations, etc., (b) subsequent legislative history, including a bill that had originally been passed outlawing gender-based price discrimination as to goods and services, which was vetoed by Gov. Pete Wilson, and then passed without the portion related to goods, and (c) the fact that a woman could buy either product and so could a man, so that there was no gender discrimination based on the buyer of the product.

Judge Kim adopted both of DTO’s primary attacks to each claim and dismissed the entire suit.

In true DTO style, this was a complete team victory. The primary team consisted of partners Megan O’Neill and Justin Goodwin, associates Prachi Mehta and Erik Mortensen, and paralegal Emily Esquivel.