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Kaufman v. CVS Caremark Corp.

United States Court of Appeals, First Circuit

September 6, 2016

RONDA KAUFMAN, on behalf of herself and all others similarly situated Plaintiff, Appellant,


          Brian D. Penny, with whom Goldman Scarlato & Penny, P.C., was on brief, for appellant.

          Robert M. Andalman, with whom A&G Law LLC was on brief, for appellees.

          Before Torruella, Kayatta, and Barron, Circuit Judges.

          KAYATTA, Circuit Judge.

         CVS Pharmacy, Inc. ("CVS") sells a Vitamin E dietary supplement with a label that touts the product as supporting "heart health." Having purchased CVS's Vitamin E product, Ronda Kaufman alleges that CVS's label deceives consumers because no scientifically valid studies show that the label's "heart health" statements are both truthful and not misleading. Finding that federal law does not preempt Kaufman's effort to maintain this action under New York's consumer protection law, we reverse the district court's order dismissing Kaufman's complaint.

         I. Background

         Because the district court dismissed this lawsuit on a motion to dismiss for failure to state a claim, Fed.R.Civ.P. 12(b)(6), our review is de novo and we assume that the facts alleged in the complaint, plus reasonable inferences drawn from those facts, are true. In re Celexa & Lexapro Mktg. & Sales Practices Litig., 779 F.3d 34, 39 (1st Cir. 2015).

         Ronda Kaufman purchased CVS-brand Vitamin E 400 International Units ("IU") Softgels (100 count) at a CVS located in Plainview, New York. The bottle containing the Vitamin E product bore the following label:

         (IMAGE OMITTED)

         Kaufman alleges that in deciding to purchase the product, she relied on the label.

         Kaufman now claims that there are no scientifically valid studies supporting CVS's "heart health" statements. Rather, she alleges that various studies[1] evaluating Vitamin E "demonstrate that vitamin E and vitamin E supplementation offer no cardiovascular benefit" and "do[] not reduce the risk of suffering a cardiovascular event, such as a heart attack, nor [do they] reduce the risk of dying from cardiovascular disease." She adds that one study reflects "that those taking vitamin E had higher rates of heart failure and were more likely to be hospitalized for heart failure, " while another study found "an increase in mortality that progressively increased as daily dosage exceeds 150 iu." The complaint further states that "[a]ll variations of [CVS's] pill-type vitamin E products exceed the 150 iu level shown to increase mortality in this study." As a result, she alleges, CVS's representation that its product supports heart health is misleading.

         Kaufman marshalled these allegations in service of a putative class action complaint that advances two counts at issue on appeal: violation of the New York Consumer Protection Act, N.Y. Gen. Bus. Law § 349 ("NYCPA section 349"), which makes unlawful "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service" in New York, id. § 349(a), and a piggy-back common law claim of unjust enrichment. The district court found that federal law preempts both of these statements because CVS's label on its Vitamin E product complied with labeling requirements for dietary supplements under the Federal Food Drug and Cosmetic Act ("FDCA"), 21 U.S.C. §§ 301 et seq.; see also id. § 343-1(a)(5). Kaufman v. CVS Caremark Corp., No. 14-216-ML, 2016 WL 347324, at *8 (D.R.I. Jan. 28, 2016).

         II. Discussion

         The parties initially debate whether the district court erred in requiring Kaufman to state with particularity the circumstances constituting the alleged deception at issue in this case under Federal Rule of Civil Procedure 9(b). We agree with CVS that Kaufman waived any objection to that requirement, having failed twice to argue in the district court that Rule 9(b) did not apply. See United States v. Argentine, 814 F.2d 783, 791 (1st Cir. 1987). At the same time, we also find that the applicability of Rule 9(b) has no bearing on any possible disposition of this appeal. The circumstances to be stated with particularity under Rule 9(b) generally consist of "the who, what, where, and when of the allegedly [misleading] representation." Alt. Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 29 (1st Cir. 2004) (quoting Powers v. Bos. Cooper Corp., 926 F.2d 109, 111 (1st Cir. 1991)). CVS makes no argument that the complaint fails to provide this particularity. And, indeed, it does contain sufficient particularity: CVS is the "who"; the heart health statements are the "what"; the label is the "where"; and the occasion on which Kaufman purchased the product is the "when." Therefore, as CVS acknowledges, "[t]he District Court's decision did not turn on whether the applicable pleading standard was pursuant to Fed.R.Civ.P. 8(a) or 9(b)." Neither does our decision.

         Rather, the pivotal question on this appeal is whether Kaufman's complaint plausibly describes conduct by CVS that fell outside the preemptive safe harbor provided by federal law.

         A. ...

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