Cold Medicine
The Claims: This case alleges that four pharmaceutical companies sold cold medicine that they marketed as decongestants but which contained no ingredient with a decongestant effect. This follows a decision of the United States Food and Drugs Administration finding that phenylephrine (the active ingredient in those drugs) had no effect on congestion.
The Class: This case seeks to represent people who have ever purchased any of the following cold medicines:
- Benylin Extra Strength Cold & Sinus
- Benylin D for Infants
- Contac Cold Nasal Congestion
- Contac Cold & Sinus Extra Strength
- Contac Cold & Sinus Hot Medicated Drink
- Contac Extra Strength Cold & Sinus Hot Medicated Drink
- Contac Super Strength Cold & Sinus Hot Medicated Drink
- DayQuil Cold & Flu
- DayQuil Sinus Liquicaps
- NeoCitran Extra Strength Cold & Congestion
- NeoCitran Extra Strength Total Cold
- Robitussin Complete
- Sudafed PE Extra Strength
- Triaminic Thin Strips Cold & Cough
- Triaminic Thin Strips Nasal Congestion
- Triaminic Thin Strips Nighttime Cold & Cough
- Tylenol Cold and Flu
- Tylenol Cold Rapid Release
- Tylenol Extra Strength Cold
- Tylenol Extra Strength Flu
- Tylenol Extra Strength Sinus
- Tylenol Regular Strength Cold
- Tylenol Regular Strength Sinus
- Tylenol Sinus Liquicaps
- Vicks Custom Care Nasal Congestion
- Vicks Sinex Pressure & Pain
- Vicks DayQuil Cold & Flu Multi-Symptom Relief Liquicaps
- Vicks DayQuil Hot Remedy
Our Partners: We are working with a Manitoba law firm, Cochrane Saxberg, to bring this claim.
The court will decide at a later date if the case will proceed as a class action.
- November 10, 2023: We issued a Statement of Claim
What is a class action?
A class action is a special form of lawsuit in which one plaintiff brings a claim against one or more defendants based on allegations which are common to a group, or class, of people. In order for the action to become a class action, it must proceed through a stage known as “certification”.
Who brings a class action lawsuit forward?
A statement of claim is issued on behalf of a “representative plaintiff”. The representative plaintiff’s role is to work with class counsel to bring the action forward and to represent the class members in court.
What is certification?
In order for an action to proceed on behalf of the entire class, a judge must decide (among other things) whether the members of the proposed class have common issues, and whether a class action is the preferred way to resolve the issues. The process to decide these issues is known as the “certification motion”. If the judge is satisfied that the case meets all of the requirements for certification, he or she will issue an order which certifies the action as a class action.
Do I have to do anything to “join” the lawsuit?
No. If the lawsuit is certified, and you are included in the class as defined, you are automatically included in the lawsuit.
Once I am part of the class do I have to do anything?
No. We will work primarily with the class representative.
What if I do not want to be included in the lawsuit?
Those who do not wish to remain in the class will be given the option to opt-out by sending an opt-out form at the appropriate time to us.
What are the benefits of proceeding as a class action?
Certification as a class action will enable us to prove the facts in a single lawsuit rather than in numerous individual lawsuits. This has obvious benefits to the class members and to the courts.
How long does it take for a class action to be resolved?
There is no timeframe. We will move the case forward diligently but it can take a considerable period of time to reach trial.
Can a class action lawsuit be settled without going to trial?
Many class actions settle and thereby remove the need for a trial. However, we cannot predict with any certainty whether or not there will be a settlement in a given action.
What are the chances of winning the action?
The chances of “winning” can never be accurately predicted.
Will be liable for any costs or legal fees?
Class action lawsuits are typically brought on a contingency fee basis. This means that the lawyers will only be paid if the action is successful at trial or results in a settlement in favour of the plaintiffs. Legal fees would then be paid out of the settlement or judgment proceeds as approved by a judge.
Disbursements (i.e. out-of-pocket expenses, including expert reports) may be dealt with in one of two ways.
Most commonly, the lawyers will absorb the cost of disbursements. The lawyers may seek funding assistance from the Class Proceeding Fund, which may provide funding for disbursements if granted.
In some cases, disbursements may be funded by the class members, including the class representative. This typically occurs in smaller class actions brought on behalf of an organization or network of individuals where each member of the class is easily identifiable and known to the representative plaintiff. If the class action is successful, amounts advanced for disbursements are re-paid from the proceeds of any judgment or settlement to class members (and others).
Will I be liable for costs of the action if it is unsuccessful?
Only the class representative may be liable for costs of the common issues portion of the action if it is unsuccessful.
When can I expect to receive a payout from this class action?
A “payout” or an award for damages is never certain.
The action may settle or it may proceed to trial, at which time a judge will determine the amount of damages, if any, to which the class members are entitled to. Regardless, the amount of “payout” cannot be predicted, and we cannot predict when the action may settle or when the trial will conclude.
How will counsel keep me updated on the progress of the case?
If the lawsuit is certified as a class action, you will receive a formal notice from the court explaining the nature of the case and providing you with the opportunity to opt out if you wish. General information about the lawsuit will be posted on Sotos LLP’s website at https://www.sotosclassactions.com.
Where can I send any documents that I have that may be relevant to a class action?
We ask that you keep a copy of any documents, correspondences, records, invoices, receipts, etc. that you feel might be relevant to your individual claim in the class action. If there is a “payout,” this documentation may be required in order to support your claim for compensation.
It is not required that you send any documents to us at this time.