No. 23-1381 ___________________________

Nicholas Brunts, individually and on behalf of all others similarly situated

Plaintiff - Appellee

v.

Walmart, Inc.

Defendant - Appellant ____________

Appeal from United States District Court for the Eastern District of Missouri – St. Louis ____________

Submitted: May 1, 2023 Filed: May 24, 2023 ____________ Before BENTON, MELLOY, and GRASZ, Circuit Judges. ____________ MELLOY, Circuit Judge.

Nicholas Brunts filed a class action lawsuit against Walmart in the Circuit Court for St. Louis County, Missouri. Brunts alleged Walmart engaged in misleading and deceptive marketing practices by selling cough suppressants with dextromethorphan hydrobromide (“DXM”) and a “non-drowsy” label. Walmart removed the case to the Eastern District of Missouri, and Brunts moved to have the case remanded to state court. The district court remanded, finding Walmart had not met the Class Action Fairness Act’s jurisdictional requirement of showing the amount in controversy exceeds $5 million. See 28 U.S.C. § 1332(d)(2). We granted Walmart’s petition to appeal under 28 U.S.C. § 1453(c). Because we find Walmart has shown the amount in controversy exceeds $5 million, we reverse.

I.

DXM is a common ingredient in cough suppressants. The FDA does not require products containing DXM to include a warning that it “may cause drowsiness.” Walmart labels products containing DXM as “non-drowsy.”1 Brunts argues the “non-drowsy” label is misleading because DXM is known to cause drowsiness.

In 2022, Brunts sued Walmart on behalf of a class of Missouri citizens who purchased the products within the previous five years. The lawsuit alleges breach of warranty, breach of implied contract, unjust enrichment, and violation of the Missouri Merchandising Practices Act. Brunts recognizes federal law preempts a suit that requires products with DXM to be labeled with the phrase “may cause drowsiness.” Brunts instead argues the inclusion of the “non-drowsy” label is misleading and in violation of Missouri law. The complaint asserts the misleading label caused “class members to suffer injuries, pay[] for falsely labeled products, and enter[] into transactions they otherwise would not have entered into for the consideration paid.” The complaint also states, “class members are entitled to legal and equitable relief including damages, costs, attorneys’ fees, recission, and/or other relief as deemed appropriate” and “[d]ue to Defendant’s illegal conduct, Plaintiffs are entitled to restitution of all funds improperly obtained by Defendants.”

Walmart filed a timely motion to remove the case to the Eastern District of Missouri. Brunts subsequently filed a motion to remand the case to state court

1 Products sold by Walmart in Missouri that contain DXM and are labeled as “non-drowsy” are referred to as “the products.” -2- arguing Walmart did not show $5 million is in controversy. Walmart filed a brief in opposition to Brunt’s motion and attached a declaration from Viral Shah, a Senior Manager for Regulated Products Development at Walmart. Walmart argued there is more than $5 million in controversy based on three possible remedies identified in the complaint. First, if a fact finder determines plaintiffs would not have bought the products but for the “non-drowsy” label, the court could order Walmart to pay an amount equal to the total amount of product sales during the relevant time period— an amount Shah af