The practice of law has changed in many ways during the covid-19 pandemic, but a slow down in class action lawsuits was not one of those changes. In the second half of 2021, consumers filed quite a few lawsuits following a wide range of highly publicised recalls, involving everything from pharmaceuticals to automobiles.


Philips Respironics
On 14 June 2021, Philips Respironics voluntarily recalled several different models of continuous positive airway pressure (CPAP) and bilevel positive airway pressure (BiPAP) breathing machines because the polyester-based polyurethane foam in the machines had the potential to:

  • breakdown;
  • be inhaled or ingested by users; and
  • increase users' risk of cancer and other injuries.(1)

In the weeks and months that followed the recall, a number of putative class action lawsuits emerged, seeking compensation for injuries, risks and disrupted use. Generally, the plaintiffs alleged that Philips Respironics knew about the serious risk of injury caused by its devices long before it warned the public about potential hazards in April 2021 and finally recalled the machines in June 2021. Over 100 lawsuits have now been consolidated in the District Court for the Western District of Pennsylvania in the CPAP multi-district litigation Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Products Liability Litigation [MDL 3014]; discovery is still ongoing.

Pfizer Inc
Similarly, Pfizer Inc is currently defending itself against several lawsuits after recalling 12 lots of its varenicline-containing drugs (sold under the brand name "Chantix") in July 2021 that contained levels of a nitrosamine impurity, N-nitroso-varenicline, which were above the Food and Drug Administration's (FDA's) interim acceptable intake limit. Although Chantix, a treatment to help patients quit smoking, is intended for short-term use, long-term ingestion of N-nitroso-varenicline may increase the risk of cancer. In August 2021, a purchaser of the recalled medication filed a class action complaint in the District Court for the Southern District of New York, alleging that Pfizer had reason to know of the presence of N-nitroso-varenicline in its drug but had failed to disclose this important information. In Harris v Pfizer Inc [1:21-cv-06789], the plaintiff has asserted:

  • warranty;
  • consumer protection;
  • unjust enrichment; and
  • fraud claims.

The claims are on behalf of herself, a nationwide class of "all persons in the United States who purchased Chantix containing N-nitroso-varenicline" and a subclass of "all Class members who purchased Chantix containing N-nitroso-varenicline in New Jersey".

After Pfizer extended its recall in September 2021 to include all lots of its Chantix 0.5mg and 1mg tablets, additional users filed suits in federal courts in:

  • New York;
  • Pennsylvania;
  • Florida;
  • Illinois; and
  • California.

In these cases, the plaintiffs similarly alleged that Pfizer had manufactured and sold the drug despite knowing about the N-nitroso-varenicline contamination. As in Harris, the plaintiffs have asserted a variety of contract and tort claims on behalf of themselves, a nationwide class of purchasers and a state-specific subclass of purchasers. Due to the number of analogous class actions currently pending against Pfizer across the United States, the parties have sought a stay in the various proceedings as they negotiate an appropriate forum for a consolidated case.

Mazda Motor
In November 2021, Mazda Motor of America Inc announced its recall of more than 121,000 vehicles with certain fuel pumps. On 16 November 2021, two purchasers filed a putative class action against Mazda in the District Court for the Central District of California, alleging that Mazda had knowingly sold vehicles with defective fuel pumps that caused their engines to shut down or fail to start. In Vance v Mazda Motor of America Inc [Case 8:21-cv-01890], the plaintiffs have asserted claims for:

  • strict product liability;
  • breach of express warranty;
  • breach of implied warranty of merchantability;
  • negligent recall and/or undertaking;
  • fraudulent omission and/or concealment; and
  • violations of specific Alabama and California consumer protection laws.

They seek to represent a nationwide class of current and former owners or lessees as well as two state-specific subclasses. Mazda had to answer or otherwise respond to the complaint by 19 January 2022.

Proctor & Gamble Company
In December 2021, a purchaser of Secret antiperspirant sued Proctor & Gamble Company in the District Court for the Western District of Pennsylvania after the company recalled Secret products due to the presence of benzene. According to the complaint in LaBella v Procter & Gamble Co [3:21-cv-00216], the consumer-protection testing lab Valisure had tested and found higher-than-allowed benzene concentrations in several Old Spice and Secret aerosol spray deodorant and antiperspirant products. More specifically, Valisure's testing found up to 17.7 parts per million (ppm) of benzene in some Old Spice products and 16.2 ppm of benzene in the highest-testing Secret products – more than eight times the FDA limit of 2ppm in consumer products. The plaintiff has alleged that Proctor & Gamble made misleading representations about the safety of its antiperspirants and failed to warn consumers about the benzene contamination. She has asserted claims for:

  • breach of express warranty;
  • breach of implied warranty;
  • fraudulent concealment;
  • unjust enrichment; and
  • violation of Pennsylvania's consumer protection law.

The claims are on behalf of herself, a nationwide class of purchasers and a Pennsylvania subclass. Procter & Gamble had until 10 January 2022 to answer or otherwise respond to the complaint.


Product recalls do not always lead to lawsuits. However, given the number of recent recalls and the flurry of litigation activity over the past six months, this trend in class action litigation could well continue into 2023. Whether and how frequently class action lawsuits will follow company recalls in the coming months is likely to depend largely on the early successes and failures of these cases filed during the latter half of 2021.

For further information on this topic please contact Rachel Raphael, Jessica Gilbert or Lily Hu at Crowell & Moring LLP by telephone (+1 202 624 2500) or email ([email protected], [email protected] or [email protected]). The Crowell & Moring LLP website can be accessed at


(1) For more details, please see here.