This case was last updated from U.S. District Courts on 12/04/2021 at 06:44:28 (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

 

Party Details

Plaintiff

Jasmine Smith

Defendants

GlaxoSmithKline, PLC

GlaxoSmithKline Consumer Healthcare

Attorney/Law Firm Details

Plaintiff Attorney

L. Timothy Fisher

Attorney at Bursor & Fisher, P.A.

1990 North California Boulevard, Suite 940

Walnut Creek, CA 94596

 

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)

 

Docket Entries

  • 12/03/2021
  • View Court Documents
  • 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) COMPLAINT against GlaxoSmithKline Consumer Healthcare, GlaxoSmithKline, PLC ( Filing fee $ 402, receipt number ACANDC-16688413.). Filed byJasmine Smith. (Attachments: #1 Civil Cover Sheet)(Fisher, L.) (Filed on 12/3/2021) (Entered: 12/03/2021)

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