Delre v. Perry

Civil Practice

New York Law Journal


Judge Arthur Spatt

Perry and his firm SiCap Industries sold a range of "Sinus Buster" products containing capsaicin—initially developed as dietary supplements—as over-the-counter homeopathic remedies since 2006. After its 2008 acquisition by New Jersey-based Dynova Laboratories, SiCap became a Dynova subsidiary. Dynova marketed the various Sinus Buster products as "fast, effective and safe." New York-based Hi-Tech Pharmacal acquired the Sinus Buster products in 2012. It continues to market them, and Perry retains a financial interest in their continued sale. New Jersey citizen Delre and Minnesota citizen Harrison brought putative class actions against Perry, SiCap, Dynova and Hi-Tech. Rejecting defendants' claims that consolidation would confuse the jury and hinder a fair, impartial trial, district court ordered the actions' consolidation—under Federal Rule of Civil Procedure 42(a)—as In re: Sinus Buster Products Consumer Litigation under docket number 12-CV-2429. Both suits were brought on behalf of the same class, raised identical claims against the same defendants and involved the same set of facts and allegations over defendants' alleged misrepresentations that were materially important to a consumer's purchasing decision.

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