                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 16-2015
                                         ___________

      LEONARD COTTRELL; SANDRA HENON; WILLIAM REEVES; GEORGE
    HERMAN; SIMON NAZZAL; CAROL FREBURGER; JACK LIGGETT; PATRICIA
     BOUGH; MACK BROWN; DOLORES GILLESPIE; DEBORAH HARRINGTON;
       ROBERT INGINO; EDWARD ROGERS, JR.; DEBORAH RUSIGNULOLO;
     DOROTHY STOKES; JOSEPHINE TROCCOLI; HURIE WHITFIELD; THOMAS
       LAYLOFF; CAROLYN TANNER; PATSY TATE; JOHN SUTTON; JESUS
    RENTERIA; GLENDELIA FRANCO; NADINE LAMPKIN, on behalf of themselves
                        and all others similarly situated,

                                                     Appellants

                                               v.

           ALCON LABORATORIES; ALCON RESEARCH LTD; FALCON
     PHARMACEUTICALS LTD; SANDOZ INC.; ALLERGAN INC, RP; ALLERGAN
            USA INC; ALLERGAN SALES LLC; PFIZER INC; VALEANT
       PHARMACEUTICALS INTERNATIONAL; BAUSCH & LOMB INC; ATON
     PHARMA INC; MERCK & CO INC; MERCK SHARP & DOHME CORP; PRASCO
                               LLC; AKORN INC
                      _________________________________

                             (D.C. Civil Action No. 14-cv-5859)
                         ____________________________________

                            SUR PETITION FOR REHEARING
                         ____________________________________


Present: SMITH, Chief Judge, AMBRO, CHAGARES, JORDAN, SHWARTZ,
RESTREPO, and ROTH, Circuit Judges





    Judge Roth’s vote is limited to panel rehearing only.

     Chief Judge Smith, Judge Ambro and Judge Jordan would grant rehearing en banc.
       The petition for rehearing filed by Appellees in the above-entitled case having

been submitted to the judges who participated in the decision of this Court and to all the

other available circuit judges of the circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing, and a majority of the judges of the

circuit in regular service not having voted for rehearing, the petition for rehearing by the

panel and the Court en banc, is denied.


                                                         By the Court,

                                                         s/ L. Felipe Restrepo
                                                         Circuit Judge

Date:         December 22, 2017
MB/cc:        All Counsel of Record
No. 16-2015 COTTRELL v. ALCON LABORATORIES

OPINION DISSENTING SUR DENIAL OF PETITION FOR REHEARING EN
BANC

SMITH, Chief Judge, with whom AMBRO and JORDAN, Circuit Judges, join.

        Plaintiffs would prefer that the eye drops prescribed for them be sold in a different
type of packaging. The wisdom of their preference, however, is better left tested in the
marketplace, not in this Court. Creating a disparity with one of our sister circuits, the
Majority’s opinion reasons otherwise. Because I believe Plaintiffs’ unfulfilled
preferences do not constitute an “injury” that this Court can evaluate in light of Article III
of the Constitution, I respectfully file this opinion dissenting sur denial of rehearing en
banc.
                                              I.
        Plaintiffs are consumers of prescription eye drop medications manufactured and
distributed by Defendants. The medication is sold in bottles designed with dropper tips
that dispense more liquid than the relevant portion of the human eye can hold at any one
time. Since the entire amount of each drop cannot be contained within the eye—where it
is pharmaceutically beneficial—the bottle’s design necessarily results in a portion of each
drop being wasted. Arguing that this waste constitutes an unfair or unconscionable
practice under state consumer protection statutes, Plaintiffs filed a putative class action
complaint.
        Of course, Plaintiffs must have standing to bring their claim in federal court. To
establish standing, Plaintiffs must show that they have: “(1) suffered an injury in fact, (2)
that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to
be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540,
1547 (2016). The Majority notes that the case at hand “centers on the ‘[f]irst and
foremost’ of the three standing elements, injury in fact.” Maj. Op. at 162 (quoting
Spokeo, 136 S.Ct. at 1547).
       To establish injury in fact, “a plaintiff must show that he or she suffered ‘an
invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or
imminent, not conjectural or hypothetical.’” Spokeo, 136 S.Ct. at 1548 (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Ultimately holding that Plaintiffs
successfully alleged an injury in fact sufficient to confer Article III standing, the Majority
was first required to “acknowledge that the Seventh Circuit held otherwise in a recent
case concerning materially identical allegations against many of the same defendants.”
Cottrell v. Alcon Laboratories, 874 F.3d 154, 165 (3rd Cir. 2017). In that case, the
Seventh Circuit concluded that “[t]he fact that a seller does not sell the product that you
want, or at the price you’d like to pay, is not an actionable injury.” Eike v. Allergan, Inc.,
850 F.3d 315 (7th Cir. 2017). The Seventh Circuit instead characterized such a claim as
merely expressing “regret or disappointment.” Id. For reasons similar to those expressed
by the Seventh Circuit in Eike, as well as those expressed by Judge Roth in her dissenting
opinion in the case at hand, I would not hold Plaintiffs to have successfully established
standing.
                                              II.
       In her dissenting opinion, Judge Roth concludes that the Majority “ignores clear
law cautioning against recognizing Article III standing based on the types of conjectural
allegations” advanced by Plaintiffs. Cottrell, 874 F.3d at 172 (Roth, J, dissenting). One
precedent that the Majority’s approach conflicts with is Finkelman v. National Football
League, 810 F.3d 187 (3d Cir. 2016). Like Judge Roth, I am of the opinion that
Finkelman “all but decides this case.” Cottrell, 874 F.3d at 172 (Roth, J, dissenting).
       In Finkelman, this Court held that a plaintiff did not have standing to sue under the
theory that the National Football League’s (NFL’s) ticketing policy artificially inflated
the price of Super Bowl tickets. Finkelman, 810 F.3d 197. Like Plaintiffs in the case at
hand, Finkelman brought a class action lawsuit arguing that he had suffered an economic
harm. Specifically, Finkelman argued that if the NFL had offered more tickets to the
general public—rather than “league insiders”—then Finkelman and other similarly
situated individuals would have been able to purchase Super Bowl tickets at a lower

                                              2
price. Id. This Court concluded that Finkelman’s theory rested on “pure conjecture about
what the ticket resale market might have looked like if the NFL had sold its tickets
differently. Article III injuries require a firmer foundation.” Id. at 201.
       Similar to the theory presented in Finkelman, Plaintiffs’ theory rests on “pure
conjecture” as to what the eye drop market might have looked like if Defendants had sold
their product in different packaging.1 Attempting to distinguish its holding from
Finkelman, the Majority notes that Plaintiffs’ hypothetical marketplace only requires
theorizing “the reduced size of the bottle dropper tip [a]s the only change from the status
quo.” Cottrell, 874 F.3d at 169 (emphasis in original). In attempting to distinguish this
case from Finkelman, however, the Majority draws attention to the very reason why the
two cases conflict. As Judge Roth writes, “contrary to the Majority's assertion, the
[P]laintiffs' pricing theory does in fact depend on exactly the sort of presumption rejected
by us and by other courts—namely, the presumption that no other aspects of the market
would change once the defendants’ conduct did.” Cottrell, 874 F.3d at 173-74 (Roth, J,
dissenting).
       To put it differently, Plaintiffs’ theory requires this Court to imagine a
hypothetical marketplace in which Defendants are hamstrung from adapting to any new
market conditions that might arise from the emergence of innovative bottle designs. This
theory requires us to assume, for example, that a Defendant would decide to internalize
the costs associated with designing, manufacturing, and marketing new packaging instead

1
  On remand, Finkelman amended his complaint to add detailed information describing
how the secondary ticket market specifically functioned. In reviewing his amended
complaint, this Court held Finkelman to only then have standing because the amended
complaint did more than just allege higher prices—it “alleged a causal chain justifying
why” ticket prices were higher. Finkelman v. Nat'l Football League, No. 16-4087, 2017
WL 6395503, at *5 (3d Cir. Dec. 15, 2017) (emphasis in original). Unlike the detailed
information in Finkelman’s amended complaint, Plaintiffs in the instant case provide only
conclusory allegations to support their theory. Finkelman’s amended complaint is
therefore distinguishable from the instant case, and does not change the import of this
Court’s original holding in Finkelman v. National Football League, 810 F.3d 187 (3d Cir.
2016).

                                               3
of raising the price it offers to consumers. Further, even if a Defendant were to internalize
those costs, Plaintiffs’ theory also requires us to assume that a Defendant would not
charge more for a bottle capable of delivering more doses. It might just as easily be the
case, however, that new packaging would result in Plaintiffs paying higher prices for
their treatment. Therefore, to paraphrase Finkelman, “while it might be the case that the
[Defendants’ bottle design] increased . . . prices . . . it might also be the case that it had
no effect on the . . . market.” Finkelman, 810 F.3d 200 (emphasis in original). Similar to
Finkelman, where this Court had “no way of knowing whether the NFL’s withholding of
tickets would have had the effect of increasing or decreasing prices,” Plaintiffs’ theory
requires us to speculate as to the effects of new packaging. Id. Doing so conflicts with
Finkelman, which made clear that “speculation is not enough to sustain Article III
standing.” Id.
                                              III.
       I am also concerned that the Majority's opinion could encourage courts to ignore
the expert conclusions of administrative agencies. As the Seventh Circuit wrote in Eike,
“[t]he defendants' large eye drops have been approved by the Food and Drug
Administration (FDA)—in other words have been determined to be safe and effective for
treatment of glaucoma.” Eike, 850 F.3d at 318. If Plaintiffs believe that smaller drops will
be “even more effective, and also cheaper,” these are matters that plaintiffs must take up
with the FDA, since a court “cannot bypass the agency and make its own evaluation of
the safety and efficacy of an unconventionally sized eye drop.” Id. Although I would still
not hold Plaintiffs to have shown standing even if Defendants did not have to submit new
packaging designs to a lengthy FDA approval process, courts should hesitate before
permitting plaintiffs to use the federal judiciary as a tool to second-guess factual
decisions made by agencies that are presumed to be subject-matter experts.
                                              IV.
       Finally, I am concerned that the Majority’s opinion could play mischief with our
standing jurisprudence beyond the class action field. By allowing plaintiffs to establish
standing simply by speculating about the additional efficiencies they might have captured

                                               4
had a defendant acted in accordance with the rules of a plaintiff’s hypothetical
marketplace, I fear that everyday business decisions may be subject to litigation by
creative plaintiffs capable of theorizing a way that those business decisions could have
been made to serve plaintiffs more efficiently. Perhaps as a way to preemptively limit its
holding, the Majority repeatedly stresses that the case at hand involves consumer
protection statutes prohibiting “unfair” or “unconscionable” conduct. Cottrell, 874 F.3d
at 161, 165-67, 169-70. Although this language may signal the Majority’s desire to
restrict its holding to “unfairness” claims, I am concerned that the Majority provides no
clear rationale to so confine its interpretation of Article III. I would hold that Article III
limits this Court’s ability to engage in the type of speculation that Plaintiffs’ theory calls
for regardless of whether a plaintiff roots its claim in unfairness, deception, or any other
cause of action.
                                             ***
         In light of the concerns cited above, I would join Judge Roth in holding that
Plaintiffs have not established that they have standing to bring their claim in federal
court.




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