Third Circuit Eyes Up Consumers' Standing, Splits With Seventh Circuit

Last month, the Third Circuit issued a 2-1 decision in Cottrell v. Alcon Labs.,¹ reversing a district court's dismissal of a class action lawsuit on standing grounds. The putative class in Cottrell is comprised of consumers of prescription eye droplet medication used to treat glaucoma. In their complaint, the named plaintiffs allege that the manufacturers and distributors of the droplets engaged in unfair trade practices—as prohibited by state consumer protection statutes—by selling them in dispensers that discharge the medicine in doses that are too large (i.e., the bottle's dropper squirts out 15mL when an average consumer allegedly only requires 7mL).

In its decision below, the district court granted the defendants' motion to dismiss on the grounds that the named plaintiffs lacked Article III standing, reasoning that the plaintiffs' theory of injury rested on speculation about hypothetical alternatives and generalized disagreements about dispenser design.² However