Judge Richard Posner of the 7th U.S. Circuit Court of Appeals — one of the leading figures the federal courts and American legal scholarship — has taken his feline love to a new level.
The Chicago Tribune flagged an opinion Posner wrote in a class-action case in which a consumer coalition claims prescription eye drops they use, which exceed 16 microliters per drop, are too large, in violation of the Illinois Consumer Fraud Act. In short, they allege the treatment they need could be provided by a smaller dosage, say 5 microliters. Thus, the eye drop manufacturers are forcing them to pay for treatment they don’t need.
Posner disagreed with this argument, and presented a hypothetical involving cats to explain his reasoning. He writes:
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.
In essence, Posner is saying, the customers received what they paid for, and the companies made no misrepresentations about their product. This is the antithesis of consumer fraud.
Posner himself owns a cat named Pixie, successor to the late and beloved Dinah, with whom he posed for a picture in the New Yorker.
“I have exactly the same personality as my cat” he told the magazine. “Cold, furtive, callous, snobbish, selfish, and playful, but with a streak of cruelty.”
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