This case was last updated from U.S. District Courts on 02/01/2022 at 08:13:23 (UTC).

Smith v. GlaxoSmithKline, PLC et al

Case Summary

On December 3, 2021, Jasmine Smith (“Plaintiff”), individually and on behalf of all others similarly situated, represented by L. Timothy Fisher of Bursor & Fisher, P.A., filed a personal property fraud against GlaxoSmithKline, PLC and GlaxoSmithKline Consumer Healthcare (collectively, “Defendants”), seeking declaratory relief and injunctive relief along with damages among other relief for the alleged manufacture, marketing, and sale of Abreva cold sore treatment cream. This case was filed in the United States District Court in the Northern District of California. 

In the complaint, Plaintiff alleged that, “Defendants represent that Abreva can heal a cold sore in 2 ½ days, but it does not. Defendants further represent that “[n]othing heals a cold sore faster,” despite readily available alternatives that do purport to heal cold sores faster. Worse, Defendants exceed the scope of its approval by the Food and Drug Administration (“FDA”), by making these and other unsupported representations concerning the ability of Abreva to provide symptomatic and anti-viral benefits. Thus, Defendants’ advertising is false and misleading, and the Product is ineffective as advertised and unsuitable for its intended purpose.”

Plaintiff further alleged that, “Defendants prominently claims in large text that “YOU CAN GET RID OF YOUR COLD SORES IN 2 ½ DAYS.” Then at the extreme bottom edge of the photograph, and not in close proximity to the challenged claims, Defendants set out a disclaimer. But those, like Plaintiff, viewing this photograph online—which is where it appears— are not likely to see this inconspicuous disclaimer. A reasonable consumer viewing this photograph would be led to believe that their cold sore would heal in 2 ½ days if they purchased Abreva.”

Plaintiff also alleged that, “Based on the current and former representations contained on Defendants’ and thirdparty websites, commercials, and Abreva’s packaging, it is clear that Defendants intended to induce a common belief in consumers that Abreva shortens the healing time to 2 ½ days, and provides symptomatic and anti-viral benefits for all those who use the Product. In marketing Abreva in this manner, Defendants exceeded the scope of the FDA’s approval to claims that the FDA specifically instructed Defendants not to make. Moreover, Defendants have misrepresented the FDA’s approval to further its over-the-counter market share of topical cold sore treatment.”

There are ten claims of relief laid down by Plaintiff. The first claim is for the alleged violation of California’s unfair competition law. The second claim is for the alleged violation of California’s Consumers Legal Remedies Act. The third claim is for the alleged violation of California’s Song-Beverly Consumer Warranty Act. The fourth claim is for the alleged violation of California’s false advertising law. The fifth and sixth claims are for the alleged breach of express warranty and breach of implied warranty of merchantability. The seventh claim is for the alleged fraudulent misrepresentation. The eighth claim is for the alleged negligent misrepresentation. The ninth and tenth claims are for the alleged fraud by omission and unjust enrichment. 

In the prayer for relief, Plaintiff requested the court to certify this action as class action. Further, Plaintiff requested the court for declaratory relief and injunctive relief along with compensatory and punitive damages; order of restitution, disgorgement, and all other forms of monetary relief; pre-judgment interest; reasonable attorneys’ fees and expenses and costs of suit; and any other relief the court deems just.

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Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    4:21-CV-09390

  • Filing Date:

    12/03/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Personal Property Fraud

Judge Details

Presiding Judge

Jon S. Tigar

 

Party Details

Plaintiff

Jasmine Smith

Defendants

GlaxoSmithKline, PLC

GlaxoSmithKline Consumer Healthcare

Attorney/Law Firm Details

Plaintiff Attorneys

L. Timothy Fisher

Sean L. Litteral

Defendant Attorney

Michael Clemens Minahan

 

Court Documents

1 #1

Main Document

1 #1

Civil Cover Sheet

#2

(#2) Proposed Summons. (Fisher, L.) (Filed on 12/3/2021) (Entered: 12/03/2021)

#4

(#4) Initial Case Management Scheduling Order with ADR Deadlines: Initial Case Management Statement due by 3/3/2022. Initial Case Management Conference set for 3/10/2022 at 11:00 AM in San Francisco, Courtroom B, 15th Floor. (tn, COURT STAFF) (Filed on 12/6/2021) (Entered: 12/06/2021)

#5

(#5) Summons Issued as to Defendants GlaxoSmithKline Consumer Healthcare, GlaxoSmithKline, PLC. (tn, COURT STAFF) (Filed on 12/6/2021) (Entered: 12/06/2021)

#6

(#6) CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Jasmine Smith.. (Fisher, L.) (Filed on 12/6/2021) (Entered: 12/06/2021)

8 #8

Main Document

8 #1

Notice of Eligibility for Video Recording

#9

(#9) CLERK'S NOTICE SETTING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 3/1/2022. Initial Case Management Conference set for 3/8/2022 02:00 PM in Oakland, - Videoconference Only. This proceeding will be held via a Zoom webinar.Webinar Access: All counsel, members of the public, and media may access the webinar information at #https://www.cand.uscourts.gov/jst Court Appearances: Advance d notice is required of counsel or parties who wish to be identified by the court as making an appearance or will be participating in the argument at the hearing. One list of names of all counsel appearing for all parties must be sent in one email to the CRD at JSTCRD@cand.uscourts.gov no later than March 7, 2022 by 2:00 p.m.General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.Zoom Guidance and Setup: #https://www.cand.uscourts.gov/zoom /. Case Management Statement due by 3/1/2022. Initial Case Management Conference set for 3/8/2022 02:00 PM in Oakland, - Videoconference Only. (mll, COURT STAFF) (Filed on 12/7/2021) (Entered: 12/07/2021)

#10

(#10) SUMMONS Returned Executed by Jasmine Smith. GlaxoSmithKline, PLC served on 12/21/2021, answer due 1/11/2022. (Fisher, L.) (Filed on 1/4/2022) (Entered: 01/04/2022)

#11

(#11) SUMMONS Returned Executed by Jasmine Smith. GlaxoSmithKline Consumer Healthcare served on 12/22/2021, answer due 1/12/2022. (Fisher, L.) (Filed on 1/4/2022) (Entered: 01/04/2022)

12 #12

Main Document

12 #1

Proposed Order EXTENDING TIME TO RESPOND TO COMPLAINT

#13

(#13) ORDER RE: #12 STIPULATION TO EXTEND TIME TO RESPOND TO COMPLAINT. Signed by Judge Jon S. Tigar on 1/5/2022. (amg, COURT STAFF) (Filed on 1/5/2022) (Entered: 01/05/2022)

5 More Documents Available
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Docket Entries

  • 01/05/2022
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  • Docket(#13) ORDER RE: #12 STIPULATION TO EXTEND TIME TO RESPOND TO COMPLAINT. Signed by Judge Jon S. Tigar on 1/5/2022. (amg, COURT STAFF) (Filed on 1/5/2022) (Entered: 01/05/2022)

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  • 01/04/2022
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  • Docket(#12) JOINT STIPULATION AND [PROPOSED] ORDER EXTENDING TIME TO RESPOND TO #1 COMPLAINT filed by GlaxoSmithKline Consumer Healthcare, GlaxoSmithKline, PLC. (Attachments: #1 Proposed Order EXTENDING TIME TO RESPOND TO COMPLAINT)(Minahan, Michael) (Filed on 1/4/2022) (Entered: 01/04/2022)

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  • 01/04/2022
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  • Docket(#11) SUMMONS Returned Executed by Jasmine Smith. GlaxoSmithKline Consumer Healthcare served on 12/22/2021, answer due 1/12/2022. (Fisher, L.) (Filed on 1/4/2022) (Entered: 01/04/2022)

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  • 01/04/2022
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  • Docket(#10) SUMMONS Returned Executed by Jasmine Smith. GlaxoSmithKline, PLC served on 12/21/2021, answer due 1/11/2022. (Fisher, L.) (Filed on 1/4/2022) (Entered: 01/04/2022)

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  • 12/07/2021
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  • Docket(#9) CLERK'S NOTICE SETTING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 3/1/2022. Initial Case Management Conference set for 3/8/2022 02:00 PM in Oakland, - Videoconference Only. This proceeding will be held via a Zoom webinar.Webinar Access: All counsel, members of the public, and media may access the webinar information at #https://www.cand.uscourts.gov/jst Court Appearances: Advance d notice is required of counsel or parties who wish to be identified by the court as making an appearance or will be participating in the argument at the hearing. One list of names of all counsel appearing for all parties must be sent in one email to the CRD at JSTCRD@cand.uscourts.gov no later than March 7, 2022 by 2:00 p.m.General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.Zoom Guidance and Setup: #https://www.cand.uscourts.gov/zoom /. Case Management Statement due by 3/1/2022. Initial Case Management Conference set for 3/8/2022 02:00 PM in Oakland, - Videoconference Only. (mll, COURT STAFF) (Filed on 12/7/2021) (Entered: 12/07/2021)

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  • 12/07/2021
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  • Docket(#8) ORDER REASSIGNING CASE. Case reassigned using a proportionate, random, and blind system pursuant to General Order No. 44 to Judge Jon S. Tigar for all further proceedings. Magistrate Judge Laurel Beeler no longer assigned to case, Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras.. Signed by The Clerk on 12/7/21. (Attachments: #1 Notice of Eligibility for Video Recording)(ha, COURT STAFF) (Filed on 12/7/2021) (Entered: 12/07/2021)

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  • 12/06/2021

  • Docket(#7) CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned. ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED. This is a text only docket entry; there is no document associated with this notice. (ejk, COURT STAFF) (Filed on 12/6/2021) (Entered: 12/06/2021)

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  • 12/06/2021
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  • Docket(#6) CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Jasmine Smith.. (Fisher, L.) (Filed on 12/6/2021) (Entered: 12/06/2021)

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  • 12/06/2021
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  • Docket(#5) Summons Issued as to Defendants GlaxoSmithKline Consumer Healthcare, GlaxoSmithKline, PLC. (tn, COURT STAFF) (Filed on 12/6/2021) (Entered: 12/06/2021)

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  • 12/06/2021
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  • Docket(#4) Initial Case Management Scheduling Order with ADR Deadlines: Initial Case Management Statement due by 3/3/2022. Initial Case Management Conference set for 3/10/2022 at 11:00 AM in San Francisco, Courtroom B, 15th Floor. (tn, COURT STAFF) (Filed on 12/6/2021) (Entered: 12/06/2021)

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  • 12/06/2021

  • Docket(#3) Case assigned to Magistrate Judge Laurel Beeler. Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 12/20/2021. (mbc, COURT STAFF) (Filed on 12/6/2021) (Entered: 12/06/2021)

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  • 12/03/2021
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  • Docket(#2) Proposed Summons. (Fisher, L.) (Filed on 12/3/2021) (Entered: 12/03/2021)

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  • 12/03/2021
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  • Docket(#1) CLASS ACTION COMPLAINT; JURY TRIAL DEMANDED against GlaxoSmithKline Consumer Healthcare, GlaxoSmithKline, PLC, (Filing Fee: $402.00, receipt number ACANDC-16688413). Filed by Jasmine Smith. (Attachments: #1 Civil Cover Sheet)(Fisher, L.) (Filed on 12/3/2021) Modified on 12/6/2021 (tn, COURT STAFF). (Entered: 12/03/2021)

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