U.S. Seventh Circuit - The FindLaw 7th Circuit Court of Appeals Opinion Summaries Blog

Posner's Pedigree Cats Bring an End to Eye-Drop Lawsuit

Judge Posner isn't just one of the judiciary's most influential jurists, he's also a noted cat fancier. His puss, an eight-year-old Maine Coon named Pixie, is one of the most famous legal pets around. Both "beautiful and very intelligent," according to Posner, Pixie is also the first cat "actually to like me."

Posner's love of cats, and perhaps his frustration with their pickiness, made its way into a recent decision in an eye-drop class action suit. Posner vacated class certification and ended the suit, but not until he'd gone on a lengthy tangent about pedigree cats, their fancy kibble and their taste for fine water fountains, a digression that took up about 20 percent of the brief opinion.

These Eye Drops Are Just Like Me With Pixie

So the case, Eike v. Allergan, centers around the size of eye drops used to treat glaucoma. The plaintiffs alleged that the drops were needlessly large -- well over the "optimal" eye drop size of 16 microliters or less. A class action suit, the litigation sought to recover the money class members had paid for the extra large drops.

But Judge Posner's opinion isn't notable for its eye drop jurisprudence. It's notable for the cats.

The plaintiffs don't argue that the pharmaceutical companies colluded, Posner notes. Nor do they allege that they misrepresented their products, or that plaintiffs had suffered side effects from the drops. Instead, Posner concludes, the case was based "simply on dissatisfaction with a product".

Enter the Cats

"Suppose the class members all happened to own pedigree cats," Judge Posner, a pedigree cat owner himself, writes. Further, suppose that:

... the breeders who had sold the cats to the class members had told them that as responsible cat owners they would have to feed the cats kibbles during the day and Fancy Feast at night and buy a fountain for each cat because cats prefer to drink out of a fountain (where gravity works for them) rather than out of the bowl (where gravity works against them) and they don't like to share a fountain with another cat.

Well, we can all tell where this is going -- can't we, Pixie? The cats have big appetites, Fancy Feast isn't free, and fountains "are expensive and not wholly reliable."

The breeders had made no misrepresentations, concealed no information, answered all questions of prospective buyers truthfully. Nevertheless many of the buyers are dissatisfied.

"Yet would anyone think that they could successfully sue the breeders?" Posner asks. The answer, of course, is no. When it comes to pedigree breeds, caveat cattus.

Returning to the eye drop plaintiffs, "You cannot sue a company and argue only -- 'it could do better by us' -- which is all they are arguing," Posner concludes. "The fact that a seller does not sell the product that you want, or at the price you'd like to pay, is not an actionable injury; it is just a regret or disappointment -- which is all we have here."

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