Class action against Walgreen's filed in Madison County

Steve Gonzalez Aug. 18, 2008, 5:50am

A class action lawsuit filed in Madison County on Aug. 14 alleges Walgreen's engaged in unfair and deceptive practices designed to mislead the public when marketing its "Wal-born" products.

Class plaintiff Francis Talley of East Alton alleges Walgreen's mislead the public into believing Wal-born products cure or prevent colds and other illnesses and boost the immune system.

According to Talley, Wal-born is marketed and sold by Walgreen's as being substantially similar to Airborne and purports to offer the same health formula as Airborne.

Walgreen's markets Wal-born as a product that can protect a user from illness caused by airborne viruses and as a form of immune system defense, Talley alleges.

"Walgreen's marketing efforts and public statements about Wal-born are intended to convey the message that a user will decrease his or her likelihood of getting or remaining sick," the complaint states.

Talley claims Walgreen's tells consumers that Wal-born should be taken before entering crowded environments were germs are likely to be present, such as schools or airplanes.

"The Wal-born products, as sold, do not cure or prevent illness and boost the immune system," the complaint states.

Talley claims Walgreen's "unfair and deceptive" scheme has caused him and the class to incur substantial damages.

Talley also alleges Walgreen's Web site makes numerous deceptive and misleading representations that were also intended to convince consumers that Wal-born provides protection and relief from illness.

According to the complaint, Walgreen's makes the following misleading statements on its Web site:

  • Immune system defense against airborne viruses:

  • Take to boost your immune system before entering crowded, germ filled environments, like airports, offices and schools; and

  • Effervescent technology offers 100 percent immediate absorption.

    "Walgreen's has no scientific or otherwise legitimate basis for making such claims, and such claims are deceptive and/or misleading," the complaint states.

    Talley claims in fine print on its packaging and Web site, Walgreen's includes a disclaimer that typically states, "This product is not intended to diagnose, treat, cure, or prevent any disease."

    According to Talley, the disclaimer does not render Walgreen's immune from liability because the disclaiming language is in fine print and is in contrast to other statements made in Walgreen's marketing materials and packaging.

    Moreover, the disclaimer is placed in a style and location that a typical and reasonable consumer would not read.

    Talley claims that a class action is "superior" to other available means for the fair and efficient prosecution of the claims.

    He claims that certification of the class would allow the litigation of claims that, in view of expensive litigation, might be insufficient in amount to support individual actions.

    According to Talley, individual class members are unlikely to be aware of their rights and might not be in a position by way of experience or financial means to commence individual litigation against Walgreen's.

    "A class action will result in an orderly expeditious administration of the class," the complaint states.

    "Walgreen's has also acted or has refused to act on grounds generally acceptable to the class, thereby making appropriate injunctive relief with respect to the class as a whole," the complaint also states.

    Talley claims at this time, the exact size of the class is unknown, however, since Wal-born is sold in almost every Walgreen's store in Illinois as well as the Internet from the Walgreen's Web site the class will consist of "several thousand members."

    "This action is not removable under the Class Action Fairness Act," the complaint states. "No diversity jurisdiction exists because all parties are citizens in the State of Illinois, the putative class is comprised solely of Illinois citizens, and the acts complained of occurred solely in the State of Illinois."

    "There is no federal subject matter jurisdiction because only state law claims are alleged," the complaint also states.

    According to Talley, Walgreen's alleged misrepresentations violated the Illinois Consumer Fraud Act.

    As a result, Talley claims he and the class were damaged by purchasing a product devoid of the characteristics promoted and advertised by Walgreen's.

    Talley also claims Walgreen's is in breach of express warranty.

    He claims Walgreen's provided class members with written express warranties that Wal-born protects a user from illness caused by airborne "germs and viruses" by somehow "boosting" a consumer's "immune system" decreasing the likelihood of getting or remaining sick.

    In addition, Talley alleges Walgreen's is in breach of the implied warranty of merchantability because Wal-born is not fit for the ordinary purposes for which it is used.

    "Wal-born does not conform to the promises or affirmations of fact made on the container or label," the complaint states.

    Talley also alleges that Walgreen's is in breach of implied warranty of fitness for a particular purpose because they had reason to know that consumers purchase Wal-born for the particular purpose of preventing or curing illnesses caused by germs or viruses.

    "Plaintiff and the class are entitled to damages from the breach," the complaint alleges.

    Lastly, Talley alleges Walgreen's was unjustly enriched by selling Wal-born through deceptive practices and misrepresentations.

    "The Wal-born profits and/or benefits obtained by Walgreen's, to the detriment of Plaintiff and the class, violate the fundamental principals of justice, equity, and good conscious," the complaint states.

    "The Court should require Walgreen's to disgorge those profits and make restitution to Plaintiff Francis E. Talley and the members of the class," the complaint also states.

    Talley is asking that the case be certified as a class action, that Walgreen's acts and practices be judged as unfair and deceptive and that the court award him and the class damages, attorneys' fees, costs of the suit, prejudgment interest, and injunctive relief prohibiting, restraining, and enjoining Walgreen's from engaging in the similar conduct.

    Evan Buxner, of counsel to Walther/Glenn Law Associates in St. Louis represents Talley and the putative class.

    Madison County Chief Judge Ann Callis has yet to assign the case.

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