Brennan v. Rite Aid Corp., No. 08-CV-02970-JF (E.D.Pa. Oct. 7, 2009) –

♪♪♪ Real Litigant of Genius (Sorry Miller Lite for the shameless rip) ♪♪♪

Here’s to you Terri Brennan for truly championing the causes of many of societies most noted unfortunate souls: that guy who ralphed after drinking bad milk; the kid who bit down … strike that … chewed on that soft Butterfinger; and that wild-eyed high school kid who thought … did I feel something burst?

Terri Brennan attempted to champion the cause to which any reader, lawyer, or other professional could relate – vindicating the rights of those consumers who had purchased “expired” products. 

Unfortunately for our downtrodden hero, Brennan appeared to bite off more bad meat than the mouth could chew. The trial court rejected Ms. Brennan’s stale (spoiled, sour, chewy?) claim. Quite simply, Terri was a bit too ambitious, trying to fit claims for all products under the same tent, and the trial court held that Ms. Brennan could not establish commonality. 

And who could blame the trial court? Can one person truly represent, on the one hand, the small tot who unfortunately received (and then returned) that sour milk and on the other hand ate a piece of stale bread? Different products, different facts, no connection! Can one person truly represent the weekend warrior who had one too many expired [insert cheap beer name] on the one hand and the unfortunate soul that purchased that [insert name brand contraceptive] on the other. No connect … oh wait, bad example.

Let’s just say no commonality, no class action. CAFA prevails.