St. Clair County 'immune system' class actions moving through court
A consumer fraud class action suit filed in December against CVS Pharmacy over its immune system product AirShield is set for status conference at 9 a.m. March 15 in St. Clair County Circuit Court.Plaintiff has failed to plead that claim with requisite specificity;
Circuit Judge Lloyd Cueto was assigned to the case Jan. 22 after Judge Robert LeChien recused himself.
Class plaintiff Iean Finley of Madison County alleges CVS misled the public into believing that AirShield protects against illness and boosts the immune system.
Attorneys for CVS have filed a motion to dismiss arguing that Finley fails to plead any factual basis for his own claims other than he bought AirShield from a CVS store.
CVS is represented by Robert Bassett of Donovan, Rose, Nester and Joley of Belleville, and by David Smith of Reed Smith in Chicago.
Bassett also argues that the plaintiff fails to establish that his claims are not barred by statute of limitations.
"Even assuming that plaintiff's purchase occurred on the one date contained in the complaint-- i.e. 'on or before September 1, 2003,'...does not save plaintiff's claims from dismissal," Bassett wrote.
"September 1, 2003 is more than five years before plaintiff filed this action (December 1, 2008) and thus is outside any applicable limitations period."
Bassett also argues the consumer fraud count should be dismissed because:
Allegations of proximate causation are wholly insufficient;
Plaintiff has not sufficiently pleaded an actionable concealment; and
Plaintiff has not sufficiently pleaded an actionable unfair business practice.
CVS also argues that the suit's unjust enrichment count should be dismissed because Illinois does not recognize it as an independent cause of action.
The attorneys who filed the suit are the same group who have filed at least four other similar class action suits in St. Clair County.
Paul M. Weiss, George K. Lang and Eric C. Brunick of Freed and Weiss in Chicago, Richard J. Burke of St. Louis and Kevin T. Hoerner and Brian T. Kreisler of Becker, Paulson, Hoerner and Thompson in Belleville represent the putative classes.
On Dec. 1 they sued Idea Village Products alleging the company engaged in unfair and deceptive practices in selling its "NutaMist Immune Boost" products.
Class plaintiff Aaron C. Durkee of Fairview Heights claims the public was misled into believing that the product protects against and prevents colds and boosts the immune system.
Circuit Judge Patrick Young presides over the case, which is set for status conference at 9:30 a.m. on March 19.
On Nov. 21 the group of lawyers sued Kmart. That case, Adams v. Kmart also assigned to Judge Cueto, is set for case management at 9 a.m. on Feb. 19.
Kmart is represented by William Knapp of Knapp Ohl Green and Marron in Belleville and Mark Brand of Reed Smith in Chicago.
Knapp filed a motion for an extension of time to plead on Jan. 9. An order had not been entered in the file as of Jan. 28.
On Dec. 31 the group of lawyers sued Target claiming the company engaged in unfair and deceptive practices designed to mislead the public when marketing its "Immunity Supplement" products.
Class plaintiff Brian Buehlhorn of St. Clair County alleges the retailer misled the public into believing Immunity Supplement products protects users from airborne viruses, is a form of immune system defense and decreases a person's likelihood of getting sick.
On Jan. 22 the group of lawyers sued NBTY, alleging the company engaged in unfair and deceptive practices designed to mislead the public when marketing its "Ester-C" products.
Class plaintiff Eian D. Warma alleges NBTY misled the public into believing Ester-C products were better than Vitamin C because they offered 24-hour immune protection and "enhanced absorption with C-Sorb."