IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

DENISE ROBINSON and DAVID STIGALL, 

individually and on behalf of all others 

similarly situated,

Plaintiffs,

vs.

WALGREEN CO.,

Defendant.

Case No.

JURY TRIAL DEMANDED

CLASS ACTION COMPLAINT

1. This is a putative class action on behalf of Plaintiffs Denise Robinson and David 

Stigall (“Plaintiffs’’), and all others similarly situated, against Defendant Walgreen Co.

(“Walgreens” or “Defendant”).

NATURE OF THE CASE

2. Defendant is one of the largest drugstore chains in the United States, with more 

than 8,200 stores in all 50 states. Defendant markets, advertises, and sells various products, 

including, but not limited to pain reliever and fever reducers, to consumers.

3. Defendant distributes its own brand of pain reliever and fever reducer under the 

“Walgreens” label, including Infants’ Dye-Free Pain & Fever Acetaminophen - Walgreens

(“Infants’ Products”) and Children’s Dye-Free Pain & Fever Acetaminophen - Walgreens

(“Children’s Products”), two well-known brand-name Over The Counter (“OTC”) medications.

The Infants’ Products and Children’s Products are collectively hereinafter referred to as the 

“Products.”

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4. Acetaminophen, the active ingredient in the Products, can be dangerous, and 

perhaps even fatal, if taken in large doses. The potential risks associated with an acetaminophen 

overdose terrifies parents and caregivers and causes them to be extra careful when buying 

medicine for their children. Defendant exploits this fear by misleading consumers.

5. It is the manner in which Defendant markets, prices, and sells the Products in its 

brick-and mortar retail stores that forms the underlying basis for this action. 

6. Defendant’s advertisements, marketing representations, and placement of the 

Products in its stores are misleading, untrue, and likely to deceive reasonable consumers. 

Defendant purposely packages Infants’ Products with distinctive bright yellow lettering of the 

word “infants’” on the product’s front-label, while packaging Children’s Products with distinctive 

bright yellow lettering of the word “Children’s” on the product’s front-label. Accordingly, 

Defendant distributes, markets, and sells the Products in a manner which deceives reasonable 

consumers into thinking that infants cannot safely take Children’s Products. 

7. Furthermore, despite the fact that the Products contain the same exact amount of 

acetaminophen in the same dosage amounts, Defendant markets and sells Infants’ Products to 

consumers, such as Plaintiffs, at a substantially higher price than Children’s Products. In stores, 

the Infants’ Products cost approximately three times as much per ounce than Children’s Products

for the same amount of medicine.

8. No reasonable consumer would pay approximately three times more for Infants’

Products, as compared to Children’s Products, unless he or she was deceived into thinking that 

infants cannot safely take Children’s Products.

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JURISDICTION AND VENUE

9. Jurisdiction and venue are properly vested in this Court because Defendant has its 

principal place of business in Illinois, and a substantial portion of the acts, events, and/or failure 

to act giving rise to the claims alleged herein occurred in this judicial district. Additionally, 

Defendant has substantial business contacts with the State of Illinois, or otherwise avails itself of 

the markets within Illinois, through promotion, sale, marketing and distribution of the Products in 

Illinois, to render the exercise of jurisdiction by this Court proper and necessary. 

10. This action is brought pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332 

(CAFA). Jurisdiction is vested in this Court in that there is minimal diversity and the aggregate 

amount in controversy exceeds five million dollars ($5,000,000.00), exclusive of interest and costs.

11. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b) – (d) 

because, inter alia, Defendant resides in, and is subject to personal jurisdiction in, this judicial 

district at the time that Plaintiffs commenced this action and because Defendant’s contacts within 

this judicial district is significant and sufficient to subject it to personal jurisdiction. Further, venue 

is appropriate in this judicial district because a substantial part of the events or omissions giving 

rise to Plaintiffs’ claims occurred in this judicial district.

PARTIES

12. At all relevant times, Plaintiff Denise Robinson has resided in Dixon, Illinois.

Plaintiff first purchased the Infants’ Product at the Walgreens store located at 1275 N. Galena 

Avenue, Dixon, Illinois 61021, and has been purchasing the Infants’ Product for her now two (2) 

year old and five (5) year old children for approximately five (5) years.

13. At all relevant times, Plaintiff David Stigall has resided in Dallas, Texas. Plaintiff 

first purchased the Infants’ Products at the Walgreens store located at 11403 E Northwest Hwy, 

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Dallas, Texas 75218, and has been purchasing the Infants’ Product for his now two (2) year old 

child for approximately two (2) years.

14. Plaintiffs saw and relied upon the Infants’ Products packaging and labeling.

15. Plaintiffs purchased the Infants’ Products because they believed that the Infants’

Products were specifically formulated and designed for infants based on the marketing and labeling 

of the Infants’ Products. Plaintiffs believed that the Infants’ Products were different than the 

Children’s Products. If Plaintiffs knew that the Infants’ Products were nothing more than the 

Children’s Products, they would not have purchased the Infants’ Products or paid a price premium 

for the Infants’ Products.

16. Had Defendant not made the false, misleading, and deceptive representation that 

the Infants’ Products were formulated and designed for “Infants,” nor omitted the fact that the 

Infants’ Products were nothing more than the Children’s Products with the word “Infants”

prominently displayed, Plaintiffs would not have been willing to pay the premium for the Infants’

Products, or they would not have been willing to purchase the Infants’ Products at all. Plaintiffs

purchased and paid more for the Infants’ Products than they would have if they had known the 

truth about the Infants’ Products. The Infants’ Products that Plaintiffs received were worth less 

than the Infants’ Products for which they paid. Plaintiffs were injured in fact and lost money as a 

result of Defendant’s deceptive conduct.

17. Plaintiffs’ desire to purchase “Infants’” products in the future and regularly visit 

retail locations where such products are sold. If Plaintiffs knew that the Infants’ Products’ labels 

were truthful and non-misleading, they would continue to purchase the Infants’ Products in the 

future.

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18. At present, however, Plaintiffs cannot purchase the Infants’ Products because they 

remain unsure whether the labeling of the Products is, and will be, truthful and non-misleading. If 

the Infants’ Products were in fact different from the Children’s Products, or if it were disclosed 

that the Infants’ Products were the same as the Children’s Products, Plaintiffs would purchase the 

Products in the immediate future, and they would be willing to pay a price premium if they were 

in fact specially formulated for infants.

19. Defendant is a corporation incorporated under the laws of Illinois, and is a 

“person” as defined in 33 U.S.C. § 1362(5) and 40 C.F.R. § 122.2. 

20. Defendant is, and at all times mentioned in this Complaint, a corporation organized 

and existing under the laws of the State of Illinois with its principal place of business at 200 

Wilmot Road, Deerfield, Illinois, 60015. Defendant conducts business in all fifty states of the 

United States, including this District. Defendant can sue and be sued in this Court. 

FACTUAL ALLEGATIONS

21. Defendant distributes two different pediatric OTC painkillers—Infants’ Products 

and Children’s Products.

22. Prior to the acts complained herein, liquid acetaminophen marketed for infants was 

only available in 80 mg/0.8 mL or 80 mg/mL concentrations, while liquid acetaminophen marketed 

for “children” was only available in 160 mg/5 mL concentrations.

23. The difference in concentrations caused some consumers to accidentally provide 

the wrong dosage of medicine to their children, thereby causing them to overdose. 

24. Between 2000 and 2009, U.S. Food and Drug Administration (FDA) received 

reports of twenty (20) children dying from acetaminophen toxicity, and at least three (3) deaths 

were tied to mix-ups involving the two pediatric medicines. 

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25. On December 22, 2011, the FDA informed the public that liquid acetaminophen 

marketed for infants would only be available in 160 mg/5 mL in order to prevent confusion and 

accidental acetaminophen toxicity.

26. Since then, the only differences in liquid acetaminophen marketed for infants 

versus children has been the price and dosing instrument included with the product (i.e.,

Defendant’s Infants’ Products come with a syringe while the Children’s Products come with a 

plastic cup).

27. The Products have the same 160 milligram concentration of acetaminophen, are 

interchangeable and therefore suitable for infants and children, adjusting the dosage based only on 

the weight and age of the child. 

28. Defendant has been engaging in the unfair, unlawful, deceptive, and fraudulent 

practice of manufacturing, marketing and selling the same product as two unique medicines, such 

that parents and caregivers mistakenly believe that they cannot purchase the significantly cheaper 

Children’s Products for an infant.

29. Defendant misleads consumers by using deceptive marketing techniques which 

obscure critical facts—including that infants can safely take Children’s Products and that the 

Products are in fact exactly the same—from consumers nationwide

30. Defendant deceives consumers so that they will buy the deceptively-labeled 

Infants’ Products for infants, which cost significantly more than Children’s Products, even though 

the Products contain the same exact amount of acetaminophen in the same dosage amounts.

31. There are various conventions applied in sub-dividing the pediatric population by 

age. The FDA classification1for infants and children is as follows: infant (1 month to 2 years) and 

1 Guidance for Industry – General Considerations for Pediatric Pharmacokinetic Studies for 

(footnote continued)

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children (2 to 12 years).2 Consumers may reasonably believe that a product that is labeled and 

marketed for consumption by infants should only be consumed by those between the ages of one 

(1) month to two (2) years old. 

32. Defendant distributes, markets, and sells the Products in a manner that deceives 

reasonable consumers into thinking that infants cannot safely take the Children’s Products.

33. Specifically, Defendant distinguishes the two products by calling one “infants’”

and one “children’s” in distinctive bright yellow lettering.

 

34. Additionally, at the top right corner of the Infants’ Products, Defendant states 

“Compare to Infants’ Tylenol® Oral Suspension active ingredient” while the top right corner of 

the Children’s Products states, “Compare to Children’s Tylenol® Oral Suspension active 

ingredient.” Through this wording, Defendant attempts to deceive reasonable consumers into 

believing that the active ingredient in Infant Tylenol® is different than the active ingredient in 

Drugs and Biological products, Draft Guidance, US FDA, 10 November 1998.

2

http://archives.who.int/eml/expcom/children/Items/PositionPaperAgeGroups.pdf (last visited 

March 25, 2020)

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Children’s Tylenol®, when it knows that the active ingredient is the same, further inducing 

reasonable consumers to purchase the more expensive Infants’ Products.

 

 

35. Defendant further misleads consumers by placing “Ages 2-3” on the Infants’ 

Products. Despite the inclusion of an age range, reasonable consumers believe that a product 

specifically labeled “infants” is just that, for infants. And no reasonable consumer (as confirmed 

by FDA age classification, which confirms an infant is ages 1 month to 2 years) would believe 

that an “infant” is a 2 or 3 year old. 

36. Furthermore, despite the fact that the Products contain the same exact amount of 

acetaminophen in the same dosage amounts, Defendant markets and sells Infants’ Products to 

consumers, such as Plaintiffs, at a substantially higher cost than the Children’s Products. In stores, 

Infants’ Products cost approximately three times as much per ounce over Children’s Products for 

the same amount of medicine.

37. Defendant knows that consumers, such as Plaintiffs, are typically more cautious 

about what medicine they give to infants, especially when they are giving their infant a product 

that has caused accidental deaths in the past.

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38. No reasonable consumer would be willing to pay more money—and certainly not 

three times as much per ounce—for Infants’ Products unless he or she had good reason to believe 

that Infants’ Products were different than or superior to the Children’s Products.

39. Indeed, Defendant’s misrepresentations and omissions, as described above, would 

be important to a reasonable consumer in deciding whether to purchase Infants’ Products.

RULE 9(b) ALLEGATIONS

40. Defendant made material misrepresentations and failed to adequately disclose that 

the Products are the same. Except as identified herein, Plaintiffs and Class members are unaware, 

and therefore, unable to identify, the true names and identities of those individuals at Defendant 

who are responsible for such material misrepresentations and omissions. 

41. Defendant made material misrepresentations regarding Infants’ Products. 

Specifically, Defendant marketed, priced and sold Infants’ Products in a manner to indicate to 

reasonable consumers that they are superior or somehow more appropriate for infants than 

Children’s Products to justify charging the inflated price of Infants’ Products. These 

representations were false and misleading because Infants’ Products are the same as Children’s 

Products.

42. Defendant’s advertising, in-store labeling, marketing, and placement of the 

Products contained the material misrepresentations, omissions, and non-disclosures continuously 

at every point of purchase and consumption throughout the Class Period. 

43. Defendant made numerous misrepresentations on the advertising, in-store labeling, 

marketing, and pricing of Infants’ Products that were designed to, and, in fact, did, mislead 

Plaintiffs and the members of the Classes into purchasing Infants’ Products.

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44. Defendant made these material misrepresentations, omissions, and non-disclosures 

for the express purpose of inducing Plaintiffs and other reasonable consumers to purchase or 

otherwise pay a price premium for Infants’ Products based on the belief that Infants’ Products were 

specifically designed for infants and different from the identical Children’s Products. Defendant 

profited by selling Infants’ Products to thousands of unsuspecting consumers.

CLASS ACTION ALLEGATIONS

45. Plaintiffs seek to bring this action as a class action, under Federal Rule of Civil 

Procedure 23, on behalf of themselves and all others similarly situated.

46. Plaintiffs seek to represent the following class: All persons who purchased Infants’ 

Products for personal use in the United States (the “Nationwide Class”).

47. Plaintiff Denise Robinson also brings this suit as a class action on behalf of the 

following subclass: All persons who purchased Infants’ Products, at Defendant’s Illinois store 

locations, for personal use (“Illinois Subclass”). 

48. Plaintiff David Stigall also brings this suit as a class action on behalf of the 

following subclass: All persons who purchased Infants’ Products, at Defendant’s Texas store 

locations, for personal use (“Texas Subclass”).

49. The following persons are excluded from the Nationwide Class, Illinois Subclass 

and Texas Subclass (collectively, the “Classes”): Defendant, any entity in which Defendant has a 

controlling interest or which has a controlling interest in Defendant, and Defendant’s legal 

representatives, assigns and successors. Also excluded are the judges to whom this case is assigned 

and any member of the judge’s immediate family.

50. Plaintiffs reserve the right to re-define the Classes prior to class certification. 

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51. The Classes satisfy the numerosity, commonality, typicality, adequacy, 

predominance, and superiority requirement of Federal Rule of Civil Procedure 23(a) and (b)(3).

52. Numerosity: The members of the Classes are so numerous that joinder of all 

members of the Classes is impracticable. Although the precise number of members of the Classes 

is unknown to Plaintiffs at this time, on information and belief, the proposed Classes contain 

thousands of purchasers of Infants’ Products who have been damaged by Defendant’s conduct as 

alleged herein. 

53. Existence and Predominance of Common Questions of Law and Fact: There 

are questions of law and fact common to the Classes. These questions predominate over individual 

questions because the actions of Defendant complained of herein were generally applicable to the 

Classes. These legal and factual questions include, but are not limited to:

a. Whether Infants’ Products and Children’s Products are the same;

b. Whether Defendant knew or should have known that Infants’ Products and 

Children’s Products are the same;

c. Whether Defendant’s conduct and/or omissions in its marketing, pricing and selling 

the Infants’ product in the manner discussed herein indicated to the members of the 

Classes that Infants’ Products were superior or somehow more appropriate for 

infants than Children’s Products;

d. Whether Defendant’s misrepresentations and omissions were material to 

reasonable consumers;

e. Whether Defendant’s labeling, marketing, and the sale of Infants’ Products 

constitute false advertising;

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f. Whether Defendant’s conduct injured Plaintiffs and the Classes and, if so, the 

extent of the damages; and 

g. The appropriate remedies for Defendant’s conduct.

54. All questions as to the representations and publicly disseminated advertisements 

and statements attributable to Defendant at issue herein are similarly common. A determination of 

Defendant’s knowledge regarding the misleading and deceptive nature of the statements made in 

its website, advertisements, and labels will be applicable to all members of the Classes. Further, 

whether Defendant violated any applicable state laws and pursued the course of conduct 

complained of herein, whether Defendant acted intentionally or recklessly in engaging in the 

conduct described herein, and the extent of the appropriate measure of injunctive and declaratory 

relief, damages and restitutionary relief are common questions to the Classes.

55. Typicality: Plaintiffs’ claims are typical of the Classes because Defendant injured 

all members of the Classes through the uniform misconduct described herein; all members of the 

Classes were subject to Defendant’s false, misleading, and unfair marketing practices and 

representations, including the false and misleading claim that Infants’ Products were different from 

Children’s Products warranting a premium price; and Plaintiffs seek the same relief as the 

members of the Classes.

56. Further, there are no defenses available to Defendant that are unique to the 

Plaintiffs.

57. Adequacy of Representation: Plaintiffs are a fair and adequate representative of 

the Classes because their interests do not conflict with the interests of the members of the Classes. 

Plaintiffs will prosecute this action vigorously and are highly motivated to seek redress against 

Defendant. Further, Plaintiffs have selected competent counsel that is experienced in class action 

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and other complex litigation. Plaintiffs and their counsel are committed to prosecuting this action 

vigorously on behalf of the Classes and have the resources to do so.

58. Superiority: The class action mechanism is superior to other available means for 

the fair and efficient adjudication of this controversy for reasons including but not limited to the 

following:

a. The damages individual members of the Classes suffered are small compared to the 

burden and expense of individual prosecution of the complex and extensive 

litigation needed to address Defendant’s conduct.

b. It would be virtually impossible for the members of the Classes individually to 

redress effectively the wrongs done to them. Even if they could afford such 

individual litigation, the court system could not. Individualized litigation would 

unnecessarily increase the delay and expense to all parties and to the court system 

and presents a potential for inconsistent or contradictory rulings and judgments. By 

contrast, the class action device presents far fewer management difficulties, allows 

the hearing of claims which might otherwise go unaddressed because of the relative 

expense of bringing individual lawsuits, and provides the benefits of single 

adjudications, economies of scale, and comprehensive supervision by a single 

court.

c. The prosecution of separate actions by the individual members of the Classes would 

create a risk inconsistent or varying adjudications with respect to individual 

members of the Classes members, which would establish incompatible standards 

of conduct for Defendant.

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d. The prosecution of separate actions by individual members of the Classes would 

create a risk of adjudications with respect to them that would, as a practical matter, 

be dispositive of the interests of other members of the Classes not parties to 

adjudications or that would substantively impair or impede their ability to protect 

their interests.

59. The claims of the Classes may be certified under Rule 23(b)(1), (b)(2) and/or (b)(3). 

The members of the Classes also seek declaratory and injunctive relief but also seek sizeable 

monetary relief.

FIRST CAUSE OF ACTION

Texas Deceptive Trade Practices 

And Consumer Protection Act

Tex. Bus. & Com. Code § 17.41, et seq.

(On behalf of Plaintiff David Stigall and the Texas Subclass)

60. Plaintiffs hereby incorporate paragraphs 1-59 as if fully set forth herein.

61. At all relevant times, Plaintiff David Stigall has resided in Dallas, Texas. Plaintiff 

David Stigall brings this cause of action on his own behalf and on behalf of the Texas Subclass.

62. Plaintiff David Stigall sent a demand for relief to Defendant, on behalf of the Texas 

Subclass, prior to the filing of this Complaint. 

63. Plaintiff David Stigall and the Texas Subclass are “consumers,” as defined in Tex. 

Bus. & Com. Code § 17.45(4). 

64. Defendant engaged in deceptive, unfair, and unlawful trade acts or practices in the 

conduct of trade or commerce, in violation of Tex. Bus. & Com. Code § 17.46, in at least the 

following ways:

a. Defendant has violated and continues to violate Tex. Bus. & Com. Code § 

17.46(b)(5) by representing to Plaintiff David Stigall and the Texas Subclass that 

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Infants’ Products have sponsorship, approval, characteristics, ingredients, benefits 

or quantities which they do not have; 

b. Defendant has violated and continues to violate Tex. Bus. & Com. Code § 

17.46(b)(9) by advertising Infants’ Products to Plaintiff David Stigall and the Texas 

Subclass with the intent not to sell them as advertised. 

c. Defendant has violated and continues to violate Tex. Bus. & Com. Code § 

17.46(b)(24) by failing to disclose to Plaintiff David Stigall and the Texas Subclass 

that Infants’ Products and Children’s Products are identical and that Children’s 

Products are in fact suitable and safe for infants. Defendant’s failure to disclose 

such information was intended to induce Plaintiff David Stigall and the Texas 

Subclass to purchase the more expensive Infants’ Products, which they would not 

have purchased had the information been disclosed;

d. Defendant deceptively advertised or intentionally omitted, suppressed, and/or 

concealed material facts in Infants’ Products packaging, online materials, and 

commercials in violation of Tex. Bus. & Com. Code § 17.46(b)(5), (9), and (24) 

and § 17.50(d);

e. Defendant has violated and continues to violate Tex. Bus. & Com. Code § 

17.50(a)(2) and § 17.50(d), by breaching its express warranties about Infants’ 

Products because they were nothing more than Children’s Products with the word 

“infants” prominently displayed.

65. The above unfair and deceptive practices and acts by Defendant were improper and 

unfair. These acts caused substantial injury to consumers that these consumers could not 

reasonably avoid; this substantial injury outweighed any benefits to consumers or to competition. 

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66. In marketing, advertising and labeling Infants’ Products, Defendant made, and 

continues to make, false and misleading statements in order to induce consumers into purchasing 

Infants’ Products on a false premise. 

67. In marketing, advertising and labeling Infants’ Products, Defendant failed and 

continues to fail to make material disclosures, including a disclosure notifying consumers that 

Infants’ Products is the same product as Children’s Products. 

68. Defendant is aware that the claims that it makes about Infants’ Products are false, 

misleading, without basis, and unreasonable.

69. Defendant engaged in the deceptive conduct alleged above in order to induce the 

public to purchase the more expensive Infants’ Products, instead of Children’s Products.

70. In marketing, advertising and labeling Infants’ Products described above, 

Defendant knew or should have known that its statements regarding the uses and characteristics of 

Infants’ Products were false and misleading. 

71. Defendant’s misrepresentations of the material facts detailed above constitute

deceptive, unfair, and unlawful trade acts or practices in the conduct of trade or commerce, in 

violation of Tex. Bus. & Com. Code § 17.46. 

72. Defendant had reasonably available alternatives to further its legitimate business 

interests, other than the conduct described herein.

73. All of the conduct alleged herein occurs and continues to occur in Defendant’s 

business. Defendant’s wrongful conduct is part of a course of conduct repeated on hundreds, if not 

thousands, of occasions every day.

74. Plaintiff David Stigall and the Texas Subclass were misled into purchasing Infants’

by Defendant’s deceptive conduct and misleading advertising as alleged above.

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75. Plaintiff David Stigall and the Texas Subclass were misled and, because the 

misrepresentations and omissions were uniform and material, presumably believed that Infants’

Products has benefits which it does not; namely that it is more suitable and safer for infants than 

the Children’s Products.

76. Additionally, Defendant’s use of various forms of advertising and marketing have 

deceived and are likely to continue deceiving the consuming public, in violation of Tex. Bus. & 

Com. Code § 17.46. 

77. As a result of Defendant’s wrongful conduct, Plaintiff David Stigall and the Texas 

Subclass have suffered injury in fact and have lost money. Indeed, Plaintiff David Stigall and the 

Texas 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 David Stigall and the Texas Subclass would not have purchased Infants’ Products if they 

had known that the advertising and representations as described herein were false.

78. Plaintiff David Stigall and the Texas Subclass seek relief under Tex. Bus. & Com. 

Code § 17.50, including, but not limited to, economic damages, treble damages, injunctive relief, 

restitution, and attorneys' fees and costs.

SECOND CAUSE OF ACTION

Illinois Consumer Fraud And Deceptive 

Business Practices Act

815 Ill. Comp. Stat. 505/1, et seq.

(On behalf of Plaintiff Denise Robinson and the Illinois Subclass)

79. Plaintiffs hereby incorporate paragraphs 1-59 as if fully set forth herein.

80. Plaintiff Denise Robinson brings this cause of action on her own behalf and on 

behalf of the Illinois Subclass. 

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81. In Illinois, the Consumer Fraud and Deceptive Business Practices Act, 815 Ill. 

Comp. Stat. 505/1, et. seq., prohibits “unfair methods of competition and unfair or deceptive acts

or practices, including but not limited to the use or employment of any deception, fraud, false

pretense, false promise, misrepresentation or the concealment, suppression or omission of any

material fact, with intent that others rely upon the concealment, suppression or omission of such

material fact or the use or employment of any practice described in Section 2 of the ‘Uniform

Deceptive Trade Practices Act.’”

82. Plaintiff Denise Robinson and the Illinois Subclass were injured by Defendant’s 

deceptive misrepresentations, concealments and omissions and these misrepresentations, 

concealments and omissions were material and deceived Plaintiff and the Illinois Subclass.

Because Plaintiff and the Illinois Subclass relied on Defendant’s misrepresentations, concealments 

and omissions when purchasing Infants’ Products, they were injured at the time of purchase.

83. Defendant does business in Illinois, sells and distributes Infants’ Products in 

Illinois, and engaged in deceptive acts and practices in connection with the sale of Infants’ Products

in Illinois and elsewhere in the United States.

84. The Infants’ Products purchased by Plaintiff Denise Robinson and the Illinois 

Subclass were “consumer items” as that term is defined under the Illinois Consumer Fraud Act.

85. Defendant engaged in unfair and deceptive acts in violation of 815 Ill. Comp. Stat.

505/2 when it misrepresented and deceptively concealed, suppressed and/or omitted the material

information known to Defendant as set forth above concerning its Infants’ Products, which has 

caused damage and injury to Plaintiff Denise Robinson and the Illinois Subclass at the time of 

purchase.

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86. Defendant represented, directly or indirectly, that Infants’ Products were 

manufactured, developed, and designed to be used for infants, when it knew that the Children’s 

Products were the same product, yet sold at a significantly lower cost.

87. In marketing, advertising and labeling Infants’ Products, Defendant made, and 

continues to make, false and misleading statements in order to induce consumers into purchasing 

Infants’ Products on a false premise. 

88. In marketing, advertising and labeling Infants’ Products, Defendant failed and 

continues to fail to make material disclosures, including a disclosure notifying consumers that 

Infants’ Products is the same product as Children’s Products. 

89. Defendant is aware that the claims that it makes about Infants’ Products are false, 

misleading, without basis, and unreasonable.

90. Defendant engaged in the deceptive conduct alleged above in order to induce the 

public to purchase the more expensive Infants’ Products, instead of Children’s Products.

91. In marketing, advertising and labeling Infants’ Products described above, 

Defendant knew or should have known that its representations and statements regarding the uses 

and characteristics of Infants’ Products were false and misleading. 

92. Defendant had reasonably available alternatives to further its legitimate business 

interests, other than the conduct described in this Complaint.

93. All of the conduct alleged herein occurs and continues to occur in Defendant’s 

business. Defendant’s wrongful conduct is part of a course of conduct repeated on hundreds, if not 

thousands, of occasions every day.

94. Plaintiff Denise Robinson and the Illinois Subclass were misled and, because the 

misrepresentations and omissions were uniform and material, presumably believed that Infants’ 

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Products has benefits which it does not; namely that it is more suitable and safer for infants than 

the Children’s Products.

95. Additionally, Defendant’s use of various forms of advertising and marketing have 

deceived and are likely to continue deceiving the consuming public, in violation of the Illinois 

Consumer Fraud Act.

96. Defendant’s deceptive acts occurred in a course of conduct involving trade and

commerce in Illinois and throughout the United States.

97. Defendant intended Plaintiff Denise Robinson and the Illinois Subclass to rely on 

their deceptive acts when purchasing Defendant’s Infants’ Products. 

98. Defendant’s deceptive acts proximately caused actual injury and damage to

Plaintiff Denise Robinson and the Illinois Subclass at the time of purchase. As a result of 

Defendant’s wrongful conduct, Plaintiff Denise Robinson and the Illinois Subclass have suffered 

injury in fact and have lost money. Indeed, Plaintiff Denise Robinson and the Illinois 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. 

99. Plaintiff Denise Robinson and the Illinois Subclass would not have purchased, or 

would have paid less for, Defendant’s Infants’ Products but for Defendant’s material 

misrepresentations as described in this Complaint.

THIRD CAUSE OF ACTION

Uniform Deceptive Trade Practices Act

815 Ill. Comp. Stat. 510/2, et seq.

(On behalf of Plaintiff Denise Robinson and the Illinois Subclass)

100. Plaintiffs hereby incorporate paragraphs 1-59 as if fully set forth herein.

101. Plaintiff Denise Robinson brings this cause of action on her own behalf and on 

behalf of the Illinois Subclass. 

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102. The Illinois Uniform Deceptive Trade Practices Act (“UDTPA”), 815 Ill. Comp.

Stat. 510/2, et seq., prohibits “[u]nfair methods of competition and unfair or deceptive acts or

practices, including but not limited to the use or employment of any deception, fraud, false

pretense, false promise, misrepresentation or the concealment, suppression or omission of any

material fact, with intent that others rely upon the concealment, suppression or omission of such

material fact.”

103. 815 ILCS 510/2 provides in pertinent part that a “person engages in a deceptive

trade practice when, in the course of his or her business, vocation, or occupation,” the person does

any of the following: “(5) represents that goods or services have . . . uses, benefits or quantities

that they do not have . . .; (7) represents that goods or services are of a particular standard, quality,

or grade or that goods are a particular style or model, if they are of another; . . . [or] (12) engages

in any other conduct which similarly creates a likelihood of confusion or misunderstanding.”

104. Defendant engaged in unfair and deceptive acts in violation of 815 Ill. Comp. Stat.

510/2 when it misrepresented and deceptively concealed, suppressed and/or omitted the material

information known to Defendant as set forth above concerning its Infants’ Products, which has 

caused damage and injury to Plaintiff Denise Robinson and the Illinois Subclass. Plaintiff Denise 

Robinson and the Illinois Subclass were injured by Defendant’s unfair and deceptive conduct at 

the time of purchasing Defendants’ Infants’ Products. 

105. Defendant represented, directly or indirectly, that Infants’ Products were 

manufactured, developed, and designed to be used for infants, when it knew that the Children’s 

Products were the same product, yet sold at a significantly lower cost.

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106. In marketing, advertising and labeling Infants’ Products, Defendant made, and 

continues to make, false and misleading statements in order to induce consumers into purchasing 

Infants’ Products on a false premise. 

107. In marketing, advertising and labeling Infants’ Products, Defendant failed and 

continues to fail to make material disclosures, including a disclosure notifying consumers that 

Infants’ Products is the same product as Children’s Products.

108. Defendant is aware that the claims that it makes about Infants’ Products are false, 

misleading, without basis, and unreasonable.

109. Defendant engaged in the deceptive conduct alleged above in order to induce the 

public to purchase the more expensive Infants’ Products, instead of Children’s Products.

110. In marketing, advertising and labeling Infants’ Products described above, 

Defendant knew or should have known that its representations and statements regarding the uses 

and characteristics of Infants’ Products were false and misleading. 

111. Defendant had reasonably available alternatives to further its legitimate business 

interests, other than the conduct described in this Complaint. 

112. All of the conduct alleged herein occurs and continues to occur in Defendant’s 

business. Defendant’s wrongful conduct is part of a course of conduct repeated on hundreds, if not 

thousands, of occasions every day.

113. Plaintiff Denise Robinson and the Illinois Subclass were misled and, because the 

misrepresentations and omissions were uniform and material, presumably believed that Infants’ 

Products has benefits which it does not; namely that it is more suitable and safer for infants than 

the Children’s Products.

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114. Additionally, Defendant’s use of various forms of advertising and marketing have 

deceived and are likely to continue deceiving the consuming public, in violation of the Illinois 

Consumer Fraud Act.

115. Defendant’s deceptive acts occurred in a course of conduct involving trade and

commerce in Illinois and throughout the United States. 

116. Defendant’s deceptive acts proximately caused actual injury and damage to

Plaintiff Denise Robinson and the Illinois Subclass at the point of purchase.

117. Plaintiff Denise Robinson and the Illinois Subclass would not have purchased, or 

would have paid less for, Defendant’s Infants’ Products but for Defendant’s material 

misrepresentations as described in this Complaint. Defendant intended Plaintiff Denise Robinson

and the Illinois Subclass to rely on their deceptive acts when purchasing Defendant’s Infants’ 

Products.

FOURTH CAUSE OF ACTION

Violation of The Magnuson-Moss Warranty Act

15 U.S.C. § 2301 et seq.

(On behalf of Plaintiffs and the Nationwide Class) 

118. Plaintiffs hereby incorporate paragraphs 1-59 as if fully set forth herein. 

119. Plaintiffs bring this cause of action on behalf of themselves and on behalf of the 

Nationwide Class. Upon certification, the Class will consist of more than 100 named plaintiffs. 

120. The Magnuson-Moss Warranty Act provides a federal remedy for consumers who 

have been damaged by the failure of a supplier or warrantor to comply with any obligation under 

a written warranty or implied warranty, or other various obligations established under the 

Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq.

121. The Infants’ Products are “consumer products” within the meaning of the 

Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(1).

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122. Plaintiffs and the Nationwide Class are “consumers” within the meaning of the 

Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(3).

123. Defendant is the “supplier” and “warrantor” of the Infants’ Products within the 

meaning of the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301(4) & 2301(5). 

124. Defendant represented in writing that the Infants’ Products were manufactured or 

designed for infants by prominently displaying the word “infants’” on the front-label packaging 

and the product information and price tags display next to Infants’ Products on the store shelves.

125. These statements were made in connection with the sale of the Infants’ Products 

and relate to the nature of the Infants’ Products and affirm and promise that the Infants’ Products 

are as represented and, as such, are “written warranties” within the meaning of the MagnusonMoss Warranty Act, 15 U.S.C. § 2301(6)(A). 

126. As alleged herein, Defendant breached the written warranty by selling consumers 

Infants’ Products that were nothing more than Children’s Products with the word “infants” 

prominently displayed.

127. The Infants’ Products do not conform to Defendant’s written warranty and therefore 

violate the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. Consequently, Plaintiffs and 

the Nationwide Class have suffered injury and are entitled to damages in an amount to be proven 

at trial. 

128. On June 16, 2020, Plaintiffs, on behalf of themselves and the Nationwide Class 

mailed a pre-litigation letter by certified mail, with return receipt requested, to Defendant notifying 

that the conduct, as alleged herein, violated the Magnuson-Moss Warranty Act. 

FIFTH CAUSE OF ACTION

Breach of Express Warranty

(On behalf of Plaintiffs and the Nationwide Class) 

129. Plaintiffs hereby incorporate paragraphs 1-59 as if fully set forth herein.

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130. As part of each contract for the sale of Infants’ Products, Defendant represented 

that the Infants’ Products were manufactured or designed for infants by prominently displaying 

the word “infants’” on the front-label packaging and the product information and price tags display 

next to Infants’ Products on the store shelves. 

131. Defendant’s representations that represented to consumers that the Infants’

Products were manufactured, developed, and designed to be used for infants constituted express 

warranties and became part of the basis of the bargain between Plaintiffs and the Nationwide Class, 

on the one hand, and Defendant, on the other.

132. Defendant represented that Infants’ Products were manufactured, developed, and 

designed to be used for infants to induce Plaintiffs and the Nationwide Class to purchase Infants’

Products, and pay more for them than they otherwise would have had they known the truth.

133. Plaintiffs and the Nationwide Class relied on Defendant’s representations that

Infants’ Products were manufactured, developed, and designed to be used for infants, when it knew 

that the Children’s Products were the same product, yet sold at a significantly lower cost.

134. Plaintiffs and the Nationwide Class have performed all conditions precedent to 

Defendant’s liability under the above-referenced contracts when they purchased the Infants’

Products for their ordinary purposes.

135. Defendant breached its express warranties about Infants’ Products because they 

were nothing more than Children’s Products with the word “infants” prominently displayed.

136. As a result of Defendant’s breach of express warranties, Plaintiffs and the 

Nationwide Class were damaged in the amount of the purchase price or the premium they paid for 

the Infants’ Products, together with interest thereon from the date of purchase, in an aggregate 

amount that Plaintiffs will prove at trial.

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137. On June 16, 2020 a reasonable time after they knew or should have known of such 

breach, Plaintiffs, on behalf of themselves and the other members of the Nationwide Class, sent a 

notice letter to Defendant which provided notice of Defendant’s breach and demanded that 

Defendant correct, repair, replace, or otherwise rectify the breach complained of herein. The letter 

also stated that if Defendant refused to do so, a complaint would be filed seeking damages. 

Defendant failed to comply with the letter.

138. Plaintiffs and the Nationwide Class seek actual damages and punitive damages for 

Defendant’s breach of warranty, in an amount to be proven at trial.

139. On June 16, 2020, Plaintiffs, on behalf of themselves and the Nationwide Class 

mailed a pre-litigation letter by certified mail, with return receipt requested, to Defendant notifying 

that the conduct, as alleged herein, breached the express warranty. 

SIXTH CAUSE OF ACTION

Unjust Enrichment

(On behalf of Plaintiffs and the Nationwide Class) 

140. Plaintiffs hereby incorporate paragraphs 1-59 as if fully set forth herein.

141. Plaintiffs, on behalf of themselves and on behalf of the Nationwide Class, bring a 

common law cause of action for unjust enrichment. 

142. Defendant’s conduct violated, inter alia, state and federal law by manufacturing, 

advertising, marketing, and selling Infants’ Products while misrepresenting and omitting material 

facts.

143. Defendant’s unlawful conduct as described in this Complaint allowed Defendant to 

knowingly realize substantial revenues from selling Infants’ Products at the expense of, and to the 

detriment or impoverishment of, Plaintiffs and the Nationwide Class, and to Defendant’s benefit 

and enrichment. Defendant has thereby violated fundamental principles of justice, equity, and good 

conscience. 

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144. Plaintiffs and the Nationwide Class conferred significant financial benefits and paid 

substantial compensation to Defendant for Infants’ Products, which were not as Defendant 

represented them to be. 

145. Under common law principles of unjust enrichment, it is inequitable for Defendant 

to retain the benefits conferred by the Plaintiffs’ and the Nationwide Class’ overpayments.

146. Plaintiffs and the Nationwide Class seek disgorgement of all profits resulting from 

such overpayments and establishment of a constructive trust from which the Plaintiffs and the 

Nationwide Class may seek restitution. 

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, individually and on behalf of the Classes, pray for judgment 

as follows:

(a) Certifying that the action may be maintained as a Class Action, and that the named 

Plaintiffs be appointed the Class Representatives and their counsel as Class 

Counsel; 

(b) Declaring that Defendant is financially responsible for notifying the members of 

the Classes of the pendency of this suit;

(c) Declaring that Defendant has committed the violations of law alleged herein;

(d) Providing for any and all injunctive relief the Court deems appropriate;

(e) Awarding statutory damages in the maximum amount for which the law provides;

(f) Awarding monetary damages, including but not limited to any compensatory, 

incidental, or consequential damages in an amount that the Court or jury will 

determine, in accordance with applicable law;

(g) Providing for any and all equitable monetary relief the Court deems appropriate;

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(h) Awarding Plaintiffs’ reasonable costs and expenses of suit, including attorneys’

fees;

(i) Awarding pre- and post-judgment interest to the extent the law allows; and

(j) For such further relief as this Court may deem just and proper.

DEMAND FOR JURY TRIAL

Plaintiffs demand a trial by jury on all issues so triable.

Dated: August 3, 2020

/s/ Andrew Shamis

ANDREW J. SHAMIS, ESQ. (#101754)

ashamis@shamisgentile.com

SHAMIS & GENTILE, P.A.

14 NE 1st Avenue, Suite 705

Miami, FL 33132

Telephone: (305) 479-2299

/s/ Melissa S. Weiner

MELISSA S. WEINER (#0387900)

mweiner@pswlaw.com

JOSEPH C. BOURNE (#0389922)

jbourne@pswlaw.com

PEARSON, SIMON & WARSHAW, LLP

800 LaSalle Avenue, Suite 2150

Minneapolis, MN 55402

Telephone: (612) 389-0600

Facsimile: (612) 389-0610

/s/ Scott Edelsberg

SCOTT EDELSBERG, ESQ. (#100537)

scott@edelsberglaw.com

EDELSBERG LAW, P.A.

20900 NE 30th Avenue, Suite 417

Aventura, FL 33180

Telephone: (305) 975-3320 

/s/ Rachel Dapeer

RACHEL DAPEER, ESQ. (#108039)

Rachel@dapeer.com

DAPEER LAW, P.A.

300 S. Biscayne Blvd, #2704

Miami, FL 33131

Telephone: (305) 610-5523

*Pro hac vice forthcoming*

Attorneys for Plaintiffs and the Proposed Class

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