Fitzl et al v. Amazon.com Inc

On April 22, 2022, Susan Fitzl and Samantha Horton (collectively, “Plaintiffs”), represented by R. Glenn Phillips of Phillips Law Firm (Woodinville), filed a personal property fraud class action lawsuit against Amazon.com, Inc. (“Amazon” or “Defendant”), seeking declaratory and equitable relief and damages along with restitution and disgorgement for the alleged breach of express warranty and misappropriation of the product by the defendant. This case was filed in the U.S. District Court in the Western District of Washington.

This action arose in regard to Amazon’s Basic Care-branded “Non-Drowsy” over-the-counter cold and flu medicines that contain Dextromethorphan Hydrobromide (“Non-Drowsy Products”).  In the complaint, the plaintiffs alleged, “Based on the prominent ‘Non-Drowsy’ and ‘Daytime’ representations included on the front of each product, a reasonable consumer would believe that the products do not cause drowsiness and that drowsiness is not a side effect of the product.” Plaintiffs further alleged, “Defendant also led Plaintiffs and other consumers to believe that the Non-Drowsy Products are for use during the ‘Daytime’ and [were] intended to be used during waking hours.”

The plaintiffs further alleged, “one of the active ingredients in the Non-Drowsy Products is Dextromethorphan Hydrobromide (‘DM HBr’). While the average consumer may not be aware, drowsiness is a documented side effect of DM HBr at dosages recommended by Defendant in respect to the Non-Drowsy Products. Authorities such as the National Library of Medicine and Mayo Clinic list drowsiness as a side effect of this ingredient.”

The plaintiffs also alleged that, “Defendant intended that consumers would rely on the ‘Non-Drowsy’ and ‘Daytime’ labeling so that consumers would purchase more products, pay a price premium, and buy them as alternatives to its Nighttime products. The product labels do not warn consumers that the products cause drowsiness, may cause drowsiness, or you may get drowsy from the usage of such products, thereby creating an unreasonable risk of harm.”

There are six claims for relief by the plaintiffs. The first claim is for alleged breach of express warranty. The second claim is for an alleged violation of the Wisconsin Fraudulent Representations Law (Wis. Stat. Ann. § 100.18, et seq.). The third claim is for an alleged violation of the Ohio Deceptive Trade Practices Act (Ohio Rev. Code § 4165.01, et seq.). The fourth claim is for alleged unjust enrichment.  The first claim is for alleged negligent misappropriation. The sixth claim is for alleged intentional misrepresentation.

In their prayer for relief, the plaintiff has requested the court to certify the classes pursuant to Rule 23 of the Federal Rules of Civil Procedure, appointing Plaintiffs as representatives of the class, and designating Plaintiffs’ counsel as class counsel and award Plaintiffs and classes actual and compensatory damages in an amount exceeding $5,000,000 along with restitution,  disgorgement, pre and post judgment interest, costs of the suit and reasonable attorneys’ fees, or any other such relief that the Court deems just, proper and equitable.

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