947586.1

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

JAZMINE HARRIS, individually and on 

behalf of all others similarly situated,

Plaintiff,

vs.

TOPCO ASSOCIATES, LLC, 

Defendant.

Case No. 1:20-cv-04355

Honorable Sara L. Ellis

PLAINTIFF’S RESPONSE IN OPPOSITION TO 

DEFENDANT TOPCO ASSOCIATES, LLC’S MOTION TO DISMISS

Plaintiff Jazmine Harris (“Plaintiff”), hereby submits her Response in Opposition to 

Defendant TopCo Associates, LLC’S (“TopCo” or “Defendant”) Motion to Dismiss Plaintiff’s 

First Amended Complaint (ECF No. 30 and 31) and in support thereof states:

I. INTRODUCTION

Plaintiff Jazmine Harris alleges the labeling and marketing of TopCo’s over-the-counter 

pain reliever acetaminophen product for infants (“Infants’ Product” or “the Product”) is deceptive 

and violates Pennsylvania’s consumer protection statutes and unjustly enriched Defendant. The 

statements made on the front of every Product sold during the Class Period1—including the name 

Infants’ Pain & Fever itself—are misleading because they lead reasonable consumers, like 

Plaintiff, to believe the Product is specially made for infants or otherwise possesses some other 

unique medicinal quality for infants. In reality, it is identical to TopCo’s over-the-counter 

1 Defendant filed a Request for Judicial Notice (ECF No. 20) requesting the Court take judicial 

notice of the two labels cited in Plaintiff’s First Amended Complaint. Plaintiff cannot confirm the 

accuracy and authenticity of these labels and therefore does not object to the extent that Defendant 

has accurately represented that these are the labels for all products at issue during the relevant class 

period.

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children’s acetaminophen product (“Children’s Product”). Defendant’s conduct harmed Plaintiff 

and similarly situated consumers, as TopCo charges up to three times more for the Infants’ 

Product even though it contains the same medicine found in the Children’s Product.

Mischaracterizing the well-pled allegations in the First Amended Complaint (“FAC”), 

Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint (“Motion”) makes four,

critically-infirm arguments. First, TopCo asserts that Plaintiff’s claims are preempted by the Food 

Drug & Cosmetic Act (“FDCA”), but this argument is premised upon purported obligations set 

forth under a non-binding “tentative final monograph” from 1988, which has been held to have 

no preemptive effect. This also ignores the fact that Plaintiff’s state law claims are entirely 

consonant with the FDCA’s prohibition on false and misleading labeling, and courts consistently 

hold that such claims are not preempted.

Second, TopCo claims that it does not represent the Infants’ Product as having benefits it 

doesn’t have, sold the products as advertised, and Plaintiff does not state a single false or 

misleading statement. Yet this is belied by the name of the Infants’ Product itself, the specific 

allegations of the FAC, and the case law considering identical arguments and facts. See Elkies v. 

Johnson & Johnson Servs., Inc., Case No. cv-17-7320-GW (C.D. Cal. 2017) (denying motion to 

dismiss for identical claims brought under California’s consumer protection laws for identical 

packaging); Youngblood. v. CVS, Case No. 2:20-cv-06251-MCS-MRW, ECF No. 31 (C.D. Cal. 

Oct. 15, 2020) (same). 

Third, TopCo argues that “pricing differences” between the two products do not create 

cognizable claims. But this mischaracterizes Plaintiff’s claims—nowhere in her FAC does it 

suggest that the pricing differential between the Infants’ and Children’s Products is itself false or 

misleading; instead, it is the separate false and misleading representations made on TopCo’s 

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packaging that induces parents of infants to buy the vastly-overpriced Infants’ Product. Because 

TopCo creates a straw man argument untethered to the FAC’s allegations and claims, Defendant’s 

Motion should be denied.

Fourth, TopCo contends that Plaintiff’s claim for unjust enrichment fails only because 

Plaintiff does not sufficiently allege that Defendant’s conduct was false, deceptive, or misleading 

to a reasonable consumer. However, because Plaintiff sufficiently alleges Defendant’s deceptive 

conduct, Defendant presents no basis to dismiss Plaintiff’s unjust enrichment claim.

Accordingly, the Court should deny Defendant’s Motion in its entirety2. Should the Court 

grant any portion of the Motion, Plaintiff requests leave to amend.

II. FACTUAL BACKGROUND

A. Reasonable Consumers Are Misled by the Product’s Packaging.

Before Plaintiff started buying the Infant’s Product, it was only available with a 

concentration of 80 mg/mL of acetaminophen, and Children’s was only available with a 

concentration of 160 mg/5 mL of acetaminophen. FAC ¶ 12. In 2011, after several well-publicized 

2 Defendant’s attempt to litigate class certification issues in a footnote at the motion to 

dismiss stage should be rejected. See Mot. 4, fn 2. See, e.g., De Falco v. Vibram USA, Inc., No. 12

C 7238, 2013 U.S. Dist. LEXIS 36679, 2013 WL 1122825, at *9 (N.D. Ill. Mar. 18, 2013) (“While

there may indeed be issues with the proposed class, the Court believes it is premature to engage in

this analysis at the motion to dismiss stage. Rather, these issues are better raised after the parties

have had an opportunity to conduct class discovery and fully brief the motion for class

certification.”); Miller v. Janssen Pharmaceutica Prods., L.P., No. 05-CV-4076-DRH, 2006 U.S.

Dist. LEXIS 11113, 2006 WL 488636, at *1—2 (S.D. Ill. Feb. 28, 2006); Boatwright v. Walgreen

Co., No. 10 C 3902, 2011 U.S. Dist. LEXIS 22102, 2011 WL 843898, at *2 (N.D. Ill. Mar. 4,

2011) (“Because a class determination decision generally involves considerations that are

enmeshed in the factual and legal issues comprising the plaintiff's cause of action, a decision

denying class status by striking class allegations at the pleading stage is inappropriate.”); Worix

v. MedAssets, Inc., 869 F. Supp. 2d 893 (N.D. Ill. 2012); Damasco v. Clearwire Corp., 662 F.3d

891, 897 (7th Cir. 2011).

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child deaths, manufacturers changed Infant’s to 160 mg/5 mL, the same concentration as 

Children’s, to avoid confusion and overdose. Id. ¶ 16. Since then, all pediatric acetaminophen has 

the same formulation. Id. ¶ 17.

TopCo nevertheless continued to separately package and market the Infant’s Product as a 

stand-alone product distinct from the Children’s Product, even though both Products now contain 

identical formulations. Id. ¶¶ 18-21. This marketing tactic exploits parents’ fear that they will give 

their infants the wrong medicine. Indeed, parents and caregivers, such as Plaintiff, are particularly

cautious about what medicine they give to their infants. Id. ¶ 29. Parenting resources express the 

conventional understanding that infants not only should not but cannot tolerate medicines meant 

for older children. Id. For example, the popular parenting website “What to Expect” warns:

“Always use the infant formulations; never give your baby a medication intended for older kids or 

adults.” Id. This conventional understanding holds particularly true for parents when they are 

giving their infant a medicine that has caused accidental deaths in the past. Id.

It is objectively reasonable for consumers to believe that a product called “Infants’ Pain & 

Fever Acetaminophen” is specially formulated for infants or otherwise possesses some unique 

property that makes it exclusively suitable for infant care. Id. ¶¶ 3, 32, 36. While Defendant knows

that the Infants’ Product is identical to its Children’s Product, the deceptive packaging exploits 

parents’ conventional understanding that they should buy medicine represented as being for 

“Infants” for their babies. Id. ¶¶ 3, 36. The misleading language and imagery on the Infants’

packaging deceive reasonable consumers into believing that the Infants’ Product is uniquely made 

for infants. Id. But because the Infants’ and Children’s Products have the same concentration of 

acetaminophen, they are interchangeable and equally suitable for infants and children. Id. ¶ 21. 

The only difference between the two is the dosing instrument included with the product (the 

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Infants’ Product comes with a plastic syringe while the Children’s Product comes with a plastic 

cup). Id. ¶ 17. Yet nowhere on the Infants’ Product packaging does it expressly state that it is 

interchangeable as Children’s Product, though the packaging does compare the Product to namebrand Infants’ Tylenol. Id. ¶¶ 24-25; see also ¶ 27 (likewise, the Children’s Product does not state 

it is the same as the Infant’s Product). Plaintiff and the Class are therefore misled into 

overspending. Id. ¶ 89. 

B. Plaintiff was Deceived by the Infants’ Product Packaging.

Plaintiff Jazmine Harris first bought the Infants’ Product for her infant, P.H., at a Giant 

Eagle, a Topco member-owner store located in Pittsburg, Pennsylvania. FAC ¶ 34. In the following 

months and throughout P.H.’s infancy, Plaintiff made additional purchases of the Infants’ Product.

Id. ¶ 33.

The image of an infant and representations on the packaging of the Infants’ Product caused 

Plaintiff to believe that the Infants’ Product was specially designed for her baby. Id. ¶¶ 35-37. 

Plaintiff bought the Infants’ Product because she reasonably believed that it was specially 

formulated for infants or otherwise possesses some unique medicinal quality. Id. The Infants’ 

Product’s packaging—including the name “Infants” displayed in bold, prominent lettering, the 

photo of an infant crawling, the statement: “Compare to Infants’ Tylenol Oral Suspension active 

ingredient,” and the statement that the Infants’ Product is the only product that should be used with 

the enclosed syringe—formed the basis for her understanding that the medicine was made for 

infants. Id. ¶¶ 24, 30 ,35-37.

The representations on the Infants’ Product packaging are misleading in their own right. 

However, if a consumer were to compare the Infants’ Product to the Children’s Product, as TopCo

suggests, such a comparison would reinforce the deceptive nature of the Infants’ Product. This is 

because the Children’s Product represents it is for older children—it displays an image of two 

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older children and states it is “For Ages 2 to 11 Years.” Id. ¶ 26. 

III. LEGAL STANDARD

A. Motion to Dismiss

When considering a motion to dismiss, a court must “construe [the complaint] in the light

most favorable to the nonmoving party, accept well-pleaded facts as true, and draw all inferences

in her favor.” Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). A complaint 

does “not require heightened fact pleading of specifics, but only enough facts to state a claim to 

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim 

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the alleged misconduct.” Ashcroft v. Iqbal, 129 

S. Ct. 1937, 1949 (2009). As such, the Court should only dismiss a complaint if the plaintiff’s 

claims are purely speculative and unsupported by the alleged facts and circumstantial evidence. 

Id.

IV. ARGUMENT

A. Plaintiff’s Claims Are Not Expressly Preempted

Defendant claims Plaintiff’s state law claims are expressly preempted because the Products 

“are regulated by FDA and sold pursuant to the Drug Monograph Review Process that applies to 

acetaminophen.” Mot. 7. Defendant relies on 21 U.S.C. § 379r(a)’s express preemption of any 

state law “requirement” “that is different from or in addition to, or that is otherwise not identical 

with, a requirement” of the FDCA. In support of this conclusion, Defendant relies solely on its 

claim “the TFM does not prohibit the labeling of acetaminophen products appropriate for 

infants as ‘Infants’’ products.” Mot. 8.

This argument fails on its face. Defendant does not identify any “requirement” of the 

FDCA at all, let alone one that differs from the requirements of Plaintiff’s claims in this case. That 

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alone puts an end to Defendant’s argument: Defendant relies on the fact that the 1998 Tentative 

Final Monograph on which it relies “does not prohibit” labeling products as Infants’ Products. But 

not prohibiting something is different than requiring it. Defendant does not claim it is required to 

label the Infants’ Products as Infants’ Products, to show them with a baby on the front of the 

packaging, or to otherwise make it seem they are particularly suited or formulated for infants.

Closer examination of express preemption law does not improve Defendant’s argument. 

States are free to enforce a requirement that is identical to a requirement under federal law. 28 

U.S.C. § 379r(f). A state, therefore, is free to “provid[e] a damage remedy for conduct that would 

[simultaneously] violate federal law.” Ackerman v. Coca-Cola Co., No. CV-09-0395 (JG), 2010 

WL 2925955, at *6 (E.D.N.Y. July 21, 2010); see also Fagan v. Neutrogena Corp., No. 5:13-CV01316-SVW-OP, 2014 WL 92255, at *1 (C.D. Cal. Jan. 8, 2014) (same). Plaintiff’s claims are 

entirely consistent with the FDCA because they are premised on the theory that the Infants’ 

Product labels are false and misleading, and the FDCA specifically prohibits “labeling [that] is 

false or misleading.” 21 U.S.C. § 352(a); see also 21 C.F.R. § 330.10(a)(4)(v) (“Labeling shall be 

clear and truthful in all respects and may not be false or misleading in any particular.”). Plaintiff’s 

state law claims are “identical to a requirement” established under federal law (the requirement for 

labeling to be truthful), and therefore, her claims are not preempted. 21 U.S.C. § 379r(f). 

But even if Plaintiff’s state law claims were directly in conflict with the 1998 Tentative 

Final Monograph, they still would not be preempted. There is no controlling final monograph that 

covers acetaminophen products, and thus the FDCA’s express preemption provision, 21 U.S.C. 

§ 379r, does not apply to acetaminophen labeling. The 1998 Tentative Final Monograph on which 

Defendant relies is a tentative final monograph; it does not have the same preemptive effect as a 

final monograph would. Emley v. Wal-Mart Stores, Inc., No. 1:17-CV-2350-WTL-TAB, 2019 WL 

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2642842, at *5 (S.D. Ind. June 27, 2019) (“By its very terms, the tentative final monograph does 

not have the force of law; therefore, the Defendants cannot be in violation of federal law by failing 

to comply with it.”); In re Tylenol (Acetaminophen) Mktg., Sales Practices & Prod. Liab. Litig., 

144 F. Supp. 3d 699, 731 (E.D. Pa. 2015) (“Furthermore, Extra Strength Tylenol was and still is 

regulated by the Tentative Final Monograph (TFM) which is only a proposed rule. As explained 

by the FDA itself: ‘Under a TFM, manufacturers market products at their own risk and are able to 

make voluntary adjustments taking into context the information presented in the proposed TFM.’”

(citations omitted)). So, too, here. Because Defendant “would not have violated the law by the 

mere act of adding an additional warning [or clarification] to the label of their acetaminophen 

products,” Plaintiff’s claims are not expressly preempted. Emley, 2019 WL 2642842, at *7 (citing 

Wyeth v. Levine, 555 U.S. 555 (2009)); see also In re Tylenol, 144 F. Supp. 3d at 731 (concluding 

state law claims were not impliedly preempted). 

B. Plaintiff States a Claim for Violation of the UTPCPL

Topco contends that Plaintiff fails to state a claim under applicable law. In a suit alleging 

deceptive conduct under the “catchall” provision of the Pennsylvania Unfair Trade Practices and 

Consumer Protection Law (“UTPCPL”), an action can be brought against an entity if the plaintiff 

alleges facts satisfying the following elements: (1) a “deceptive act” or “conduct that is likely to 

deceive a consumer acting reasonably under similar circumstances;” (2) justifiable reliance, in 

other words that the plaintiff purchased the product because of the alleged deception; and (3) the 

plaintiff must allege that the justifiable reliance caused ascertainable loss. Seldon v. Home Loan 

Servs., 647 F. Supp. 2d 451, 470 (E.D. Pa. 2009). Plaintiff’s UTPCPL claim is properly pled.

First, Topco claims that it is clear from the FAC that Topco never represented that the 

Infants’ Products “have sponsorship, approval, characteristics, ingredients, benefits or quantities 

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which they do not have.” (See FAC at ¶76(a); 73 P.S. § 201-2(4)(v).) Topco claims that the FAC 

does not even allege as much, and that the FAC does not, and cannot, allege that the Product labels 

are incorrect. However, this could not be further from the truth. 

The FAC alleges that, “Plaintiff and the Pennsylvania Subclass purchased Infants’ Products 

because of Defendant’s misrepresentations that Infants’ Products are a more suitable and safer 

OTC medicine for infants than Children’s Products. Plaintiff and the Pennsylvania Subclass would 

not have purchased Infants’ Products if they had known that the advertising and representations as 

described herein were false.” See FAC ¶ 89. Furthermore, the essence of the FAC is that Topco 

engaged in deceptive labeling of Infants’ Products. The FAC alleges that “Defendant deceives 

consumers into buying the deceptively-labeled Infants’ Products for infants, which cost 

significantly more than the Children’s Products, even though both Products are identicallyformulated and contain the same amount of acetaminophen in the same dosage amounts.” See FAC 

¶ 21. The FAC illustrates how Topco’s own labeling confuses consumers by directing them to only 

use the Infants’ Product for infants and the Children’s Product for children—suggesting the 

Infants’ Product is specially designed for infants and can only be taken by infants. See FAC ¶¶ 22-

31. Contrary to Topco’s assertions, the FAC clearly alleges and details how Topco deceptively 

labeled its Infants’ Products. Accordingly, a claim can be stated under the UTPCPL.

Second, Topco claims that Plaintiff’s speculation that it advertised the Infants’ Products 

“with the intent not to sell them as advertised” is not supported by any fact alleged in the FAC. 

See FAC ¶ 76(b); 73 P.S. § 201-2(4)(ix). This claim is simply false. A claim brought pursuant to 

73 P.S. § 201-2(4)(ix) is akin to a claim for false advertising. Gabriel v. O’Hara, 534 A.2d 488, 

494 n.14 (Pa. Super. Ct. 1987). In fact, both Pennsylvania state and federal courts have ruled that 

73 P.S. § 201-2(4)(ix) applies only to claims of false advertising. Seldon, 647 F. Supp. 2d at 466; 

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see also Karlsson v. FDIC, 942 F. Supp. 1022, 1023 (E.D. Pa. 1996), aff’d 107 F.3d 862 (3d Cir. 

1997); Weinberg v. Sun Co., 740 A.2d 1152, 1167 (Pa. Super. Ct. 1999), rev’d on other grounds, 

565 Pa. 612, 777 A.2d 442 (2001). To set forth a claim for false advertising under this provision 

of the UTPCPL, a plaintiff must allege: (1) “a defendant’s representation is false”; (2) “it actually 

deceives or has a tendency to deceive”; and (3) “the representation is likely to make a difference 

in the purchasing decision.” Id. Here, Plaintiff has set forth a claim for false advertising under this 

provision of the UTPCPL, 73 P.S. § 201-2(4)(ix). As alleged in the FAC, Topco’s deceptive and 

misleading advertising practices harness the fear of acetaminophen toxicity to trick consumers into 

purchasing and overpaying for Infants’ Product when Children’s Product would be just as safe and 

effective at a fraction of the price. See FAC ¶ 32. The FAC alleges that, “Plaintiff and the 

Pennsylvania Subclass purchased Infants’ Products because of Defendant’s misrepresentations 

that Infants’ Products are a more suitable and safer OTC medicine for infants than Children’s 

Products. Plaintiff and the Pennsylvania Subclass would not have purchased Infants’ Products if 

they had known that the advertising and representations as described herein were false.” See FAC 

¶ 89. Contrary to Topco’s assertions, the FAC details exactly how Plaintiff and the Pennsylvania 

Subclass were misled into purchasing Infants’ Products by Topco’s deceptive and misleading 

advertising. See FAC ¶ 86. Accordingly, Plaintiff has set forth a claim for false advertising under 

73 P.S. § 201-2(4)(ix).

Third, Topco claims that the FAC does not support a claim that Topco engaged in 

“fraudulent and deceptive conduct.” See FAC ¶ 76(c); 73 P.S. § 201-2(4)(xxi). Topco further 

alleges that, “the conclusory allegations in the complaint do not set forth a single false or 

misleading statement that Topco supposedly made about the products.” See FAC ¶¶ 43-45, 80, 82. 

To contend that Plaintiff has not set forth a single false or misleading statement in the FAC is a 

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bold and patently false claim. Topco’s Motion ignores the concurrently pled misleading and 

deceptive representation allegations on which Plaintiff’s claim is based.

Topco’s sole argument here, challenging the pleading of Plaintiff’s UTPCPL claim, is that 

there is not a single false or misleading statement. To the contrary, the deceptive representations 

on the Infants’ Product packaging include, but are not limited to the following: (1) the statement 

“Compare to Infants’ Tylenol Oral Suspension active ingredient,” which reinforces that the 

medicine was made for infants, sFAC ¶ 24(b); (2) the word “Infants” in bold and black lettering,

FAC ¶ 24(a); and (3) the front of the Infants’ Product box, which displays an image of an infant 

crawling, FAC ¶ 24. TopCo attempts to litigate the ultimate question in the case—whether a 

reasonable consumer is likely to be deceived by the Product’s packaging—at the pleading stage.

But “whether a reasonable consumer would be deceived by a product label or a reasonable 

consumer’s understanding of the term [at issue] are questions of fact that cannot be resolved on a 

motion to dismiss.” Biffar v. Pinnacle Foods Group, LLC, No. 16-0873-DRH, 2016 U.S. Dist. 

LEXIS 177388, at *6 (S.D. Ill. Dec. 22, 2016); see also Bruton v. Gerber Prod. Co., No. 12-CV02412-LHK, 2014 U.S. Dist. LEXIS 5493, at *11 (N.D. Cal. Jan. 15, 2014) (“whether a reasonable 

consumer would or would not have been misled by [the] label statements is a question of fact not 

suitable for resolution on a motion to dismiss.”); Khasin v. Hershey Co., No. 12–1862, 2012 WL 

5471153, at *7 (N.D. Cal. Nov. 9, 2012) (“the issues Defendant raise[s] ultimately involve 

questions of fact as to whether Plaintiff was or was not deceived by the labeling; this argument is 

therefore beyond the scope of this Rule 12(b)(6) motion”)). 

Here, Plaintiffs plausibly allege the front of a box of the Infant’s Product contains 

representations (including the modifier “infant’s” describing the acetaminophen product itself, 

plus a picture of an infant crawling) are likely to deceive consumers into believing that the 

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Product is specially formulated for infants or otherwise possesses some unique medicinal quality 

that makes it specifically suited for infants as opposed to older children. FAC ¶¶ 5, 31. These 

allegations, and nothing more, gave rise to plausible claims under California consumer protection 

laws (which track Pennsylvania’s consumer protection laws) in Elkies v. Johnson & Johnson 

Servs., Inc., Case No. cv-17-7320-GW, ECF No. 53. (C.D. Cal. 2017), and Youngblood. v. CVS, 

Case No. 2:20-cv-06251-MCS-MRW, ECF No. 31 (C.D. Cal. Oct. 15, 2020), two cases with 

nearly identical facts, in which the courts denied the defendants’ motions to dismiss.

Specifically, in Elkies the court found that “[a] picture of a mother-and-baby, along with 

the word ‘Infants,’ but without any express disclosure that the medicine in the bottle is exactly 

the same, and provided at the exact same concentration, as Children’s [Product], could lead a 

significant portion of the general consuming public or of parents of infants and children under 

two years old, to conclude that Infant’s [Product] is unique or specially formulated for children 

under two.” Id. at p. 8. Similarly, in Youngblood, the court explained, “[w]hile both the [Infant’s] 

Product and Children’s Product disclose ‘ACETAMINOPHEN 160 mg/5 mL,’ they also feature 

children of different ages and the Product prominently suggests that it is for ‘Infant’s while 

instructing consumers to ‘Compare to the active ingredients in Infant’s Tylenol Oral 

Suspension.’ These features cut against CVS’s claim that no reasonable consumer would believe 

that the Product was specially formulated for infants.” Id. at 7 (citation omitted). 

Topco attempt to dismiss the Elkies and Youngblood decisions, and cites to the outlier case, 

Lokey v. CVS Pharm., Inc., No. 20-cv-04782-LB, 2020 U.S. Dist. LEXIS 218087 (N.D. Cal. Nov. 

20, 2020), to conclude that TopCo’s label was not deceptive as a matter of law. See Mot. 12 n.6.

Lokey is distinguishable because in Lokey the complaint focused on the price difference between 

the Infants’ Product and Children’s product as the source of Defendant’s deception. Here, in 

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contrast, Plaintiff alleges affirmative misleading statements. See, e.g., FAC ¶¶ 24(a), 24(b). 

Additionally, while the Lokey court found the label included a photo of a “child of indeterminate 

age”3 on the Infants’ Product, TopCo’s Infants’ Product clearly includes a photo of a baby 

crawling, strengthening a reasonable consumer’s belief that the Infants’ Product is specially 

suitable for infants.

The FAC pleads more than sufficient facts demonstrating deceptive acts that are conduct 

“likely to deceive a consumer acting reasonably under similar circumstances.” Seldon, 647 F. 

Supp. 2d at 470. An act or practice is deceptive if it has a tendency or a capacity to deceive. Com. 

ex rel. Corbett v. Peoples Benefit Service, Inc., 923 A.2d 1230, 1236 (Pa. Commw. Ct. 2007). 

“Neither the intention to deceive nor actual deception must be proved; rather it need only be shown 

that the acts and practices are capable of being interpreted in a misleading way.” Id. Contrary to 

Topco’s assertions, Plaintiff can, and does, explain in the FAC how a reasonable consumer would 

believe that the Infants’ Product was different from and specially formulated for infants unlike the 

Children’s Product. See FAC ¶ 4. The medicine contained in a bottle of Infants’ Product is the 

same active ingredient and formulation (i.e., 160 mg per 5 mL of acetaminophen) in a bottle of the 

Children’s Product. Thus, there is no difference in the medicine sold in the Infants’ Product and 

the Children’s Product. But as the FAC alleges, Topco does not disclose this important information 

anywhere on the Infants’ Product packaging (in fact, the front of the box does explicitly compare 

the Product to name-brand Infants’ Tylenol, enforcing the belief that the Infant’s Product is 

specially formulated for infants). See FAC ¶ 4. Representing to consumers that the Infants’ 

Products are somehow different or specially formulated so that they—and they alone—should be 

used in caring for infants is materially deceptive to reasonable consumers. 

3 Lokey, No. 20-cv-04782-LB at *11-12.

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The FAC also clearly pleads reliance and cognizable injury. As it pertains to reliance, 

during Plaintiff’s interactions with the Infants’ Products at the store, Plaintiff saw and relied upon 

the Infants’ Products packaging and labeling, which were materially similar to the packaging and 

labeling described and pictured in paragraph 24 of the FAC. See FAC ¶ 35. Specifically, Plaintiff 

saw that Defendant’s Infants’ Product was for infants, and, based on the packaging, believed it to 

be specifically formulated for infants, such as her infant, and purchased the Infants’ Product from 

Topco because of those representations. See FAC ¶ 36. Plaintiff was injured in fact and lost money 

as a result of Defendant’s deceptive conduct. See FAC ¶ 38. The FAC alleges that “[a]s a result of 

Defendant’s wrongful conduct, Plaintiff and the Pennsylvania Subclass have suffered injury-infact and have lost money. Plaintiff and the Pennsylvania Subclass purchased Infants’ Products 

because of Defendant’s misrepresentations that Infants’ Products are a more suitable and safer 

OTC medicine for infants than Children’s Products. Plaintiff and the Pennsylvania Subclass would 

not have purchased Infants’ Products if they had known that the advertising and representations as 

described herein were false.” See FAC ¶ 89. As such, pleading reliance and cognizable injury is 

not an impediment to stating a claim under the UTPCPL. 

Finally, Defendant argues that pricing alone—without an actionable misrepresentation—

is not actionable. See Mot. 13 (citing Boris v. Wal-Mart Stores, Inc., 35 F. Supp. 3d 1163, 1170 

(C.D. Cal. 2014) (pricing decision alone is not actionable as “unfair” trade practice under 

California law), aff’d, 649 F. App’x 424 (9th Cir. 2016), and aff’d, 649 F. App’x 424 (9th Cir. 

2016)). This argument misses the point. The Boris plaintiffs did not allege they were misled by the 

name of the product. See id. at 1168, 1175. As explained above, Defendant’s misrepresentations 

and omissions are deceptive or misleading to a reasonable consumer because they falsely imply 

that the Infants’ Products are formulated to be different and somehow more suitable for infants 

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than the Children’s Products. Plaintiff does not contend the price difference is the source of 

Defendant’s deception, so the fact that the Infants’ Products cost significantly more than the 

identical Children’s Products is not the legal basis for her claims. Rather, the price difference 

merely evinces the fact Defendant in fact succeeded in deceiving consumers, thereby capturing a 

significant price premium.

C. Plaintiff’s Unjust Enrichment Claim Is Adequately Pled

Defendant seeks to dismiss Plaintiff’s claim for unjust enrichment solely based on its 

contention that Plaintiff failed to allege deceptive conduct. See Mot. 14. Thus, for the same reasons 

that Defendant’s arguments failed with respect to Plaintiff’s claim under the UTPCPL, 

Defendant’s motion to dismiss Plaintiff’s unjust enrichment claim fails. Plaintiff has adequately 

pled unjust enrichment. FAC ¶¶ 99-105.

V. CONCLUSION 

Based on the forgoing, Defendant’s Motion should be denied in its entirety. In the 

alternative, Plaintiff should be given leave to amend to cure any perceived deficiencies.

Dated: January 11, 2021

Respectfully submitted,

/s/ Scott Edelsberg

SCOTT EDELSBERG, ESQ.

scott@edelsberglaw.com

EDELSBERG LAW, P.A.

20900 NE 30th Avenue, Suite 417

Aventura, FL 33180

Telephone: (305) 975-3320 

/s/ Melissa Weiner _______

MELISSA S. WEINER, ESQ.

mweiner@pswlaw.com

JOSEPH C. BOURNE, ESQ. 

jbourne@pswlaw.com

PEARSON, SIMON & WARSHAW, LLP

800 LaSalle Avenue, Suite 2150

Minneapolis, MN 55402

Case: 1:20-cv-04355 Document #: 33 Filed: 01/11/21 Page 15 of 16 PageID #:252
947586.1 16

Telephone: (612) 389-0600

/s/ Rachel Dapeer

RACHEL DAPEER, ESQ.(Pro Hac Viche to be 

filed)

Rachel@dapeer.com

DAPEER LAW, P.A.

20900 NE 30th Avenue, Suite 417

Aventura, FL 33180

Telephone: (305) 610-5523

/s/ Andrew Shamis

ANDREW J. SHAMIS, ESQ.

ashamis@shamisgentile.com

SHAMIS & GENTILE, P.A.

14 NE 1st Avenue, Suite 1205

Miami, FL 33132

Telephone: (305) 479-2299

Attorneys for Plaintiff and the Proposed Class

CERTIFICATE OF SERVICE

The undersigned, an attorney, states that on January 11, 2021, he caused the foregoing to 

be filed with the Clerk of the United States District Court for the Northern District of Illinois, and 

thus a copy of this pleading will be served on all counsel of record by the Clerk’s CM/ECF system. 

/s/ Scott Edelsberg

Case: 1:20-cv-04355 Document #: 33 Filed: 01/11/21 Page 16 of 16 PageID #:253