Cats took center stage at a federal appeals court this week when Judge Richard Posner wrote a long-winded opinion about the fluffy felines in a suit about … eye drops.
At issue in Eike et al. v. Allergan is a class-action dispute over a claim that six pharmaceutical companies’ eye drops are unnecessarily large and therefore in violation of the Illinois Consumer Fraud Act. The plaintiffs, who have glaucoma, say the optimal size of an eye drop is 16 microliters, but the drops sold by the six companies were bigger than that. As a result, the patients argued that they should be awarded damages equivalent to the “difference between the price per drop of the eye drops at their present size and the presumably lower price if the drops were smaller, multiplied by the number of drops,” the court’s opinion noted.
Posner, of the 7th Circuit Court of Appeals in Illinois and Indiana, noted that the plaintiffs did not argue that there was any collusion by the drug companies, nor did they explain which side effects they thought could result from the larger drops. In dismissing the suit and ruling it couldn’t be a class-action, Posner wrote an extended analogy about cats and cat breeders:
“Suppose the class members all happened to own pedigreed cats, and 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 a bowl (where gravity works against them) and they don’t like to share a fountain with another cat.
And suppose the buyers do as told, buying what they are told to buy from pet stores, but it turns out that the cats have large appetites, the cat food is quite expensive, and the 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. They think — maybe correctly — that the cat food is needlessly expensive and the fountain a fragile luxury. Yet would anyone think they could successfully sue the breeders? For what? The breeders had made no misrepresentations. Had a prospective buyer asked one of the breeders what the annual cost of maintaining the cat would be, the breeder would, let’s assume, have given him a realistic estimate. There would be disappointment in the example given, but no cause of action.
It’s the same here.”
Posner, a left-leaning judge who is a sharp critic of the Supreme Court and the late Justice Antonin Scalia, has written about cats in his opinions previously from the court. The long-winded analogy about cats in Monday’s opinion is a new example of his feline frenzy encroaching upon his work. Posner is a noted cat person, having told the New Yorker in 2001, “I have exactly the same personality as my cat” which he described as “cold, furtive, callous, snobbish, selfish, and playful, but with a streak of cruelty.”
