United States District Court, S.D. New York
ROSEMARY QUINN and ALAN DUCORSKY, on behalf of themselves and all others similarly situated, Plaintiffs,
WALGREEN CO., Defendant
Decided August 6, 2013.
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For Rosemary Quinn, on behalf of themselves and all others similarly situated, Alan Ducorsky, on behalf of themselves and all others similarly situated, Plaintiff: Jeremiah Lee Frei-Pearson, Todd Seth Garber, LEAD ATTORNEY, Douglas Gregory Blankinship, Meiselman, Packman, Nealon, Scialabba & Baker P.C.(WPl), White Plains, NY.
For Walgreen Co., Defendant: Elizabeth V. Lopez, Justin O. Kay, PRO HAC VICE, Bradley Joseph Andreozzi, LEAD ATTORNEY, Drinker Biddle & Reath, LLP (IL), Chicago, IL; Chance Lee Cooper, Emily Tancer Broach, PRO HAC VICE, Drinker Biddle & Reath LLP, Chicago, IL; Marsha Jessica Indych, Drinker Biddle & Reath, LLP (NYC), New York, NY.
Vincent L. Briccetti, United States District Judge.
Plaintiffs Rosemary Quinn and Alan Ducorsky bring this putative class action on behalf of themselves and similarly-situated individuals who purchased from defendant Walgreen Co. (" Walgreens" ) certain dietary supplements that claim to " help rebuild cartilage." Plaintiffs allege these products do not perform as advertised because it is, in fact, impossible to " rebuild cartilage." Plaintiffs assert claims under New York and Connecticut consumer protection statutes, N.Y. Gen. Bus. Law § 349 and Conn. Gen. Stat. Ann. § 42-110a et seq., as well as claims for breach of express warranty and unjust enrichment.
Walgreens has moved to stay this action under the " first-filed" rule pending the determination of a motion pending before the United States District Court for the Northern District of Illinois (Doc. #10), and, alternatively, to dismiss the class action complaint pursuant to Rules 12(b)(1) and 12(b)(6). (Doc. #13).
For the following reasons, the motion to stay is DENIED, and the motion to dismiss is GRANTED in part and DENIED in part.
The Court has jurisdiction over this action pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d).
For purposes of deciding the pending motions, the Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences in favor of plaintiffs.
Walgreens sells a line of dietary supplements containing glucosamine and chondroitin (the " Glucosamine Supplements" ) in its stores throughout the country, including in New York and Connecticut. The labels of the Glucosamine Supplements claim the products " help rebuild cartilage." Defendant's line of Glucosamine Supplements consists of six different products that vary in formulation, strength, and quantity. Each of the Glucosamine Supplements includes glucosamine hydrochloride and chondroitin sulfate among its ingredients; however, each product also contains various other ingredients.
Four of the Glucosamine Supplements, " Glucosamine Chondroitin Complex Double Strength," " Glucosamine Chondroitin Complex Triple Strength," " Glucosamine Chondroitin Complex Triple Strength with Vitamin D," and " Glucosamine Chondroitin MSM Complex MSM Hyaluronic Acid," have labels that state: " Formulated to Help: o With Joint Comfort o Rebuild Cartilage & Lubricate Joints." That statement is qualified by the disclaimer: " This statement has not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, care, or prevent any disease."
The labels of the other two Glucosamine Supplements, " Glucosamine Chondroitin Complex Advanced 2 Per Day" and " Glucosamine Chondroitin Advanced MSM," state: " Glucosamine & Chondroitin Help Rebuild Cartilage & Lubricate Joints." That representation is subject to the same disclaimer as the other products. The packaging of all six Glucosamine Supplements also contains a warranty promising " 100% Satisfaction Guaranteed with all Walgreens Products or Your Money Back."
Plaintiffs contend defendant's claims that the Glucosamine Supplements " help rebuild cartilage" are false and deceptive
because it is " biologically impossible" to rebuild cartilage that has been lost or damaged. In support, plaintiffs cite to several scientific studies which plaintiffs contend confirm that neither glucosamine, chondroitin, nor any other supplement or ingredient can actually rebuild cartilage. Plaintiffs also cite to studies ostensibly finding that glucosamine and chondroitin are ineffective in treating osteoarthritis and other conditions. Plaintiffs acknowledge that at least two studies have found that ingestion of glucosamine may, in fact, affect the growth or deterioration of cartilage, but contend those studies are not credible because they are more than ten years old and were sponsored by a glucosamine supplement manufacturer.
In 2011, plaintiff Rosemary Quinn purchased Glucosamine Supplements at Walgreens stores in Scarsdale, New York, and Danbury, Connecticut. Quinn " read and reviewed" the representation on the label that the products would " help rebuild cartilage" before she purchased them. Quinn subsequently took the supplements, but her cartilage was not rebuilt, as it is " biologically impossible" to rebuild cartilage.
Also in 2011, plaintiff Alan Ducorsky purchased a Glucosamine Supplement at a Walgreens store in New York. Like Quinn, Ducorsky alleges he " read and reviewed" the representation that the product would " help rebuild cartilage" before he purchased it, and he subsequently consumed the supplement but his cartilage was not rebuilt. Plaintiffs contend they would not have purchased the Glucosamine Supplements had they known the products would not " help rebuild cartilage" as advertised.
Plaintiffs commenced this action on November 9, 2012. Walgreens now seeks a stay pending the disposition of a motion to dismiss pending in an earlier filed suit, Guilin v. Walgreen Co., No. 11-07763 (N.D.Ill.). In the alternative, Walgreens moves to dismiss the complaint for failure to state a claim and because plaintiffs lack ...