Jamie Potts v. Johnson and Johnson Consumer Inc.

*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JAMIE POTTS, KIM MILESZKO, CHRISTINA

LUKA, and REBECA GONZALEZ, individually

and on behalf of all other similarly situated,

Civil Action No. 20-10406 (FLW)

Plaintiffs,

OPINION

v.

JOHNSON & JOHNSON CONSUMER INC., a

New Jersey corporation and DOES 1-50, inclusive,

Defendant.

WOLFSON, Chief Judge:

Plaintiffs Jamie Potts (“Potts”), Kim Mileszko (“Mileszko”), Christina Luka (“Luka”), and

Rebeca Gonzalez (“Gonzalez”) (collectively, “Plaintiffs”), brought this consumer fraud-related

action against Defendant Johnson & Johnson Consumer Inc. (“JJCI”) in connection with the

allegedly deceptive labeling and advertising of certain Neutrogena-brand makeup remover

cleaning towelettes that purportedly caused adverse skin reactions. Presently before the Court is

JJCI’s motion to dismiss Plaintiffs’ Second Amended Complaint (“SAC”) for lack of standing

pursuant to Fed. R. Civ. P. 12(b)(1), and, alternatively, for failure to state a claim under Fed. R.

Civ. P. 12(b)(6). For the reasons set forth below, JJCI’s Motion to Dismiss is GRANTED in part

and DENIED in part as follows: (i) JJCI’s motion is denied as to Counts One through Eight,

which are Plaintiffs’ “failure-to-warn and omission” claims; (ii) the motion is granted as to Count

Nine, negligent omission, and Count Ten, unjust enrichment, and those claims are dismissed

without prejudice, with the exception of the New Jersey unjust enrichment claim, which is

dismissed with prejudice; and (iii) Plaintiffs’ request for injunctive relief is struck from the SAC.

Plaintiffs are given leave to amend their negligent omission and unjust enrichment claims in

accordance with the dictates of this Opinion. When amending their complaint, Plaintiffs must also

clarify which of the seven products listed in the SAC were purchased and used by Plaintiffs and/or

their children. See infra. The Third Amended Complaint must be filed no later than 21 days from

the date of the Order accompanying this Opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The following factual allegations are taken from Plaintiffs’ Second Amended Complaint

and are accepted as true for the purpose of this Motion. (ECF No. 14, (“SAC”).)

Plaintiffs allege that JJCI, the entity responsible for the labeling and marketing of certain

Neutrogena-brand products, engaged in deceptive practices with respect to the labeling and

advertising of seven “makeup remover cleansing towelettes” (the “Products”).1 The SAC alleges

that the Products are a “cosmetic makeup removing product intended to act as a gentle cleanser

that does not irritate the skin but quickly and effortlessly removes makeup from the face and eyes.”

JJCI allegedly advertises on the Products’ labels that the wipes are “Ophthalmologist tested,”

“Dermatologist tested,” and “Allergy tested,” which, according to Plaintiffs, creates “the

impression in the minds of consumers that the […] Products are ophthalmologist and dermatologist

approved, without qualification, and allergen free.” (Id., ¶ 18.) Further, Plaintiffs claim that in

large, bolded letters, the Products’ labels proclaim that the cleansing towelettes are, “Gentle

enough to use around sensitive eye area, even for contact lens wearers.” (Id.)

1 Plaintiff lists seven Neutrogena-brand Products in the Complaint that allegedly cause

adverse skin reactions: “Ultra-Soft Makeup Remover Wipes for Waterproof Makeup”; “Makeup

Remover Cleansing Towelettes – Fragrance Free”; “Neutrogena Naturals Purifying Makeup

Remover Cleansing Towelettes”; “Makeup Remover Cleansing Towelettes-Night Calming”;

“Deep Clean Oil-Free Makeup Remover Cleansing Wipes”; “Deep Clean Purifying Micellar

Cleansing Towelettes”; and “Makeup Remover Cleansing Towelettes-Hydrating.” (SAC, ¶ 2.)

Plaintiffs allege, however, that “while using the Products as directed, many consumers have

experienced adverse reactions ranging from irritation and discomfort to peeling, burning, and

temporary or permanent facial scarring.” (Id., ¶ 21.) Specific to them, Plaintiffs aver that after

applying the Products, Plaintiffs, or their daughters, suffered “adverse skin reactions,” including

dry skin, rashes, peeling of the skin and other skin irritation, bumps, burning sensations, and skin

damage around the areas of use.2 (Id., ¶¶ 12-15, 27.)

According to Plaintiffs, the Products’ labels and marketing were misleading because they

failed to include warnings related to the claimed risk of allergic or adverse skin reactions. (Id., ¶¶

16, 21-29, 36-38, 40-44.) JJCI allegedly knew of customer complaints about such adverse

reactions and skin irritation experienced by certain product users, but deliberately chose not to

include any warnings on the Products’ labeling. (Id., ¶¶ 25-27, 37-39.) In that regard, Plaintiffs

allege that, Neutrogena.com, a website run by JJCI, contains “a litany of consumer complaints

regarding skin irritation, rashes, chemical burns, peeling, facial disfigurement, and other injuries”

from using the Products. (Id., ¶ 26.) Plaintiffs claim that JJCI is clearly aware of these complaints

based on the fact that they respond to each negative review with a request for further information.

2 Plaintiffs Potts, Mileszko, and Gonzalez do not specify which of the seven products caused

their alleged injuries. Plaintiffs Potts and Gonzalez only claim they used “Cleansing Towelette

products.” (SAC, ¶¶ 12, 15.) Plaintiff Mileszko claims she used the “Class Products.” (SAC, ¶ 13).

Only Plaintiff Luka specifies that she used the “Ultra Soft variety” of the Products. (SAC, ¶ 14.)

As a result, there is confusion surrounding which of the Products the plaintiffs used that caused

their alleged injuries. Indeed, Plaintiffs can only establish standing to sue as to the specific

product, or products, that caused their injuries. See Lieberson v. Johnson & Johnson Consumer

Co., Inc., 865 F. Supp. 2d 529, 537 (D.N.J. 2011) (dismissing allegations regarding products that

Plaintiff did not purchase and only considering allegations regarding products that Plaintiff alleges

she purchased and used); see also Koronthaly v. L'Oreal USA, Inc., No. 07-CV-5588, 2008 U.S.

Dist. LEXIS 59024, at *13 (D.N.J. July 25, 2008) (“standing cannot be predicated on an injury

which the plaintiff has not suffered.”). I note that JJCI did not seek to dismiss on this basis.

Nevertheless, Plaintiffs, when amending the SAC, leave to amend being given, see infra, must

clarify which product, or products, they, and/or their children, purchased and used.

(Id.) These consumer complaints and responses on Neutrogena.com allegedly date back at least

three years. (Id.) Plaintiffs then claim that in light of such knowledge, certain representations

made by JJCI on the Products’ labeling, or in product marketing, were misleading or deceptive, in

the absence of any warnings. (Id., ¶¶ 1, 18-20, 22, 30-35.) Despite the alleged adverse skin

reactions, Plaintiffs claim they would “consider purchasing the […] Products in the future if the

Products could be made to conform with the affirmative representations” on the Products’ labels

and in JJCI’s marketing, or, if the chemical composition of the Products did not change, the labels

and marketing representations “warned that the Products were not suitable for all skin types, a pre-

use patch test was recommended, and consumers were advised to cease use and consult a physician

if they experienced adverse skin conditions after using the […] Products.” (Id., ¶ 16.)

Plaintiffs first filed this action on April 22, 2020, in California state court, and filed an

Amended Complaint on June 19, 2020. Shortly thereafter, on July 16, 2020, JJCI removed the

case to the United States District Court for the Central District of California. (ECF No. 1.)

On July 29, 2020, Plaintiffs filed the SAC, which asserts ten claims, including: (1) violation

of California’s Consumer Legal Remedies Act, Cal. Civ. Code §§ 1750, et seq. (“CLRA”); (2)

violation of California’s False Advertising Law, Cal. Bus. & Prof. Code §§ 17500, et seq. (“FAL”);

(3)-(5) violations of the California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200,

et seq. (“UCL”); (6) violation of New York General Business Law §§ 349, et seq.; (7) violation of

New Jersey Consumer Fraud Act (“NJCF”), N.J.S.A. §§ 56:8-1, et seq.; (8) violation of Florida

Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201, et seq.; (9) negligent omission;

and (10) unjust enrichment. (See SAC, ¶¶ 55-179.)

On August 11, 2020, the action was transferred to this Court under 28 U.S.C. § 1404(a) for

the convenience of the parties and witnesses and in the interests of justice. (ECF No. 16.) JJCI is

a New Jersey corporation with its principal place of business in Skillman, New Jersey, while

Plaintiffs are residents and citizens of the states of California, New Jersey, New York, and Florida.

(See SAC, ¶¶ 9, 12-15.)3 Plaintiffs seek certification of a “Nationwide Class,” as well as a

“California Subclass,” a “New Jersey Subclass,” a “New York Subclass,” and a “Florida

Subclass.” (Id., ¶ 45.)

I. STANDARDS OF REVIEW

JJCI moves to dismiss the SAC for lack of jurisdiction pursuant to Rule 12(b)(1) and for

failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

A. Fed. R. Civ. P. 12(b)(1)

Rule 12(b)(1) mandates dismissal of an action where a federal court lacks subject matter

jurisdiction. Fed. R. Civ. P. 12(b)(1); see also Bender v. Williamsport Area Sch. Dist., 475 U.S.

534, 541 (1986) (noting that federal courts “have only the power that is authorized by Article III

of the Constitution and the statutes enacted by Congress pursuant thereto”). Once a Rule 12(b)(1)

challenge is raised, the burden shifts to the plaintiff to demonstrate the existence of subject matter

jurisdiction. See McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006).

In deciding a Rule 12(b)(1) motion, a district court may treat a party’s motion as either a

“facial” or “factual” challenge to the court's jurisdiction. See Davis v. Wells Fargo, 824 F.3d 333,

346 (3d Cir. 2016); Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). “In

reviewing a facial attack, the court must only consider the allegations of the complaint and

documents referenced therein and attached thereto, in the light most favorable to the plaintiff.”

Gould, 220 F.3d at 176 (citations omitted). “In reviewing a factual attack, the court may consider

3 Specifically, Potts is a resident of Los Angeles County in California, Mileszko is a resident

of Burlington County in New Jersey, Luka is a resident of Erie County in New York, and Gonzalez

is a resident of Broward County in Florida. (SAC, ¶¶ 12-15.)

evidence outside the pleadings.” Id. When a motion is treated as a factual challenge, a court “is

free to weigh the evidence and satisfy itself as to the existence of its power to hear the case,” and

“[n]o presumptive truthfulness attaches to [the] plaintiff's allegations.” Davis, 824 F.3d at 346

(quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).

A. Fed. R. Civ. P. 12(b)(6)

In reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “courts accept all factual

allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine

whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (internal quotation marks and

citation omitted). While Fed. R. Civ. P. 8(a)(2) does not require that a complaint contain detailed

factual allegations, “a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Thus,

to survive a Rule 12(b)(6) motion to dismiss, the Complaint must contain sufficient factual

allegations to raise a plaintiff’s right to relief above the speculative level, so that a claim “is

plausible on its face.” Id. at 570; Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).

To determine whether a plaintiff has met the facial plausibility standard mandated by

Twombly and Iqbal, courts within this Circuit engage in a three-step progression. Santiago v.

Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must “outline the elements a

plaintiff must plead to state a claim for relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

Next, the Court “peel[s] away those allegations that are no more than conclusions and thus not

entitled to the assumption of trust. Id. Finally, where “there are well-pleaded factual allegations,

the court should assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.” Iqbal, 556 U.S. at 679.

II. ANALYSIS

A. Standing

On this motion, JJCI argues that the SAC fails to plead facts sufficient to establish that

Plaintiffs have Article III standing. First, with respect to Potts, JJCI contends that prior to filing

suit, Potts received and cashed a refund check from JJCI for the full purchase price of the Product

that allegedly caused an adverse skin reaction for her and her daughter. (See Refund Check, Ex.

B to the Declaration of Carla Z. Oliveira (“Oliveira Decl.”), at ¶ 11.) According to JJCI, this fact

deprives Potts of Article III standing on all her claims, because Potts cannot prove she suffered an

injury-in-fact to pursue monetary relief. (ECF 30, Motion to Dismiss (“MTD”), at 17-21.) As for

the remaining Plaintiffs, JJCI argues that Mileszko, Luka, and Gonzalez also fail to plead facts

sufficient to establish Article III standing. (Id. at 21-22.) Specifically, JJCI submits that it has no

record that Mileszko, Luka, and Gonzalez requested, and were denied, a refund of the purchase

price paid for allegedly defective products. (Id.) Thus, according to JJCI, Mileszko, Luka and

Gonzalez lack Article III standing because their claimed economic loss in connection with their

purchases is not “fairly traceable to the conduct of the defendants.” (Id. at 21-22) (citing In re

McNeil Consumer Healthcare, 877 F. Supp. 2d 254, 275 (E.D. Pa. 2012)). In addition, JJCI argues

that Plaintiffs lack standing because their “price-inflation theory” is too speculative, since they

assert claims on behalf of unidentified persons in jurisdictions where Plaintiffs do not allege that

they suffered any injury. Finally, JJCI posits that Plaintiffs lack standing to seek injunctive relief,

because they have not established that they are likely to suffer future injury from JJCI’s alleged

conduct. (MTD, at 23-30.)

In response, Plaintiffs argue that “(1) Article III standing does not require Plaintiffs utilize

a privately managed ‘refund program’ before seeking legal remedy; (2) even if there was such a

requirement, [JJCI] deliberately kept the purported ‘refund program’ secret and out of public view;

(3) the particular circumstances of each Plaintiff demonstrates that they each have Article III

standing; (4) Plaintiffs may seek injunctive relief to prevent future harm in spite of their knowledge

of potential harm in each of the jurisdictions; [and] (5) Plaintiffs[’] claims for injunction relief

likewise establish Article III standing . . . .” (Pl. Opp. Br., at 7.)

“Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and

‘Controversies.’” Lance v. Coffman, 549 U.S. 437, 439 (2007). “Standing to sue is a doctrine

rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v. Robins, 136 S. Ct.

1540, 1547 (2016). “The standing inquiry ... focuse[s] on whether the party invoking jurisdiction

had the requisite stake in the outcome when the suit was filed.” Constitution Party of Pa. v.

Aichele, 757 F.3d 347, 360 (3d Cir. 2014) (citing Davis v. FEC, 554 U.S. 724, 734 (2008)). “[T]he

‘irreducible constitutional minimum’ of standing consists of three elements.” Spokeo, 136 S. Ct.

at 1547 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “The plaintiff must

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.” Id.

The injury-in-fact element, the Third Circuit has advised, “is often determinative.” Toll

Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 138 (3d Cir. 2009). The number of persons injured

by the alleged action “does not matter … [and] the party bringing suit must show that the action

injures him in a concrete and personal way.” Lujan, 504 U.S. at 581.

Furthermore, “the standing inquiry requires careful judicial examination of a complaint’s

allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular

claims asserted.” Allen v. Wright, 468 U.S. 737, 752 (1984).

While “general factual allegations of injury resulting from the defendant’s conduct may

suffice, the complaint must still ‘clearly and specifically set forth facts sufficient to satisfy’ Article

III” at the pleading stage.” Reilly v. Ceridian Corp., 664 F.3d 38, 41 (3d Cir. 2011) (quoting Lujan,

504 U.S. at 561); Whitmore v. Arkansas, 495 U.S. 149, 155 (1990); see, e.g., Anjelino v. N.Y. Times

Co., 200 F.3d 73, 88 (3d Cir. 2000) (“Standing is established at the pleading stage by setting forth

specific facts that indicate that the party has been injured in fact or that injury is imminent, that the

challenged action is causally connected to the actual or imminent injury, and that the injury may

be redressed by the cause of action.”).

In this case, Plaintiffs’ theory of economic harm is based on their allegations that they did

not receive the benefit of their bargain due to JJCI’s alleged omissions and misrepresentations.

(SAC, ¶ 48(e).) Plaintiffs’ claims can be summarized in the following way: Plaintiffs allege that

they bought and used Neutrogena face wipes; the wipes were harmful to them because they

suffered rashes, swellings, peeling skin, and burning sensations after the use of the Products; and

JJCI knew that the Products caused harmful reactions, purposefully did not list warnings about the

alleged risks, and misrepresented the degree of the Products’ safety, thereby misleading Plaintiffs

into purchasing the Products that they otherwise would not have, had they been warned.

1. Refunds

As a preliminary matter, in the SAC, Plaintiffs allege that they suffered physical injuries.

(Pl. Mov. Br., at ¶¶ 13-15.) Based on those injuries, Plaintiffs allege that they purchased Products

that did not perform as advertised, and thus, were worth less than that for which Plaintiffs

bargained. (SAC, ¶¶ 48(e), 99, 128); Estrada v. Johnson & Johnson, No. 16-7492, 2017 U.S. Dist.

LEXIS 109455, at *17 n. 2 (D.N.J. July 14, 2017), aff’d, 903 F.3d (3d Cir. 2018); (recognizing

that in a products-liability case, a plaintiff may establish standing by alleging physical harm);

Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1172 (11th Cir. 2014) (recognizing that physical

harm and economic harm are distinct and well-established types of injury that can give rise to

standing); Backus v. Gen. Mills, 122 F. Supp. 3d 909, 918-21 (N.D. Cal. 2015) (finding that

plaintiff’s alleged physical injury—organ inflammation—and alleged economic injury—lost

money from purchasing baking products that plaintiff claimed negatively impacted his health—

were sufficient to confer standing.).

Pursuant to their economic theory, Plaintiffs seek “either (1) the full purchase price [paid

by] customers who purchased [the Products], or (2) a portion of the purchase price paid by

customers who purchased [the Products] reflecting the difference in value between what Defendant

represented to consumers and the product that Defendant actually delivered to consumers.” (SAC,

¶ 95.) This theory of economic harm is sufficient to establish standing. See, e.g., Marcus v. BMW

of N. Am., LLC, 687 F.3d 583, 606 (3d Cir. 2012) (“[A] plaintiff is not required to show monetary

loss, but only that he purchased something and received ‘less than what was promised.’”) (quoting

Union Ink Co., Inc. v. AT&T Corp., 352 N.J. Super. 617, 801 (App. Div. 2002)); Smajlaj v.

Campbell Soup Co., 782 F. Supp. 2d 84, 99 (D.N.J. 2011) (“The Consumer Fraud Act requires

nothing more than that the consumer was misled into buying a product that was ultimately worth

less than to the consumer than the product that was promised.”); In re Johnson & Johnson Talcum,

903 F.3d at 292 (“In order to allege that she has suffered an economic injury as a result of simply

purchasing Baby Powder, Estrada must allege that she purchased Baby Powder that was worth less

than what she paid for.”); Degelmann v. Advanced Med. Optics Inc., 659 F.3d 835, 840 (9th Cir.

2011) (“[Plaintiffs] presented evidence that they were deceived into purchasing a product that did

not disinfect as well as it represented. Had the product been labeled accurately, they would not

have been willing to pay as much for it as they did, or would have refused to purchase the product

altogether.”); Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 329-30 (Cal. 2011) (concluding

that plaintiffs’ theory of the economic harm established standing where consumers allege they

“purchased a product that he or she paid more for than he or she otherwise might have been willing

to pay if the product had been labeled accurately.”); Hughes v. Ester C Co., 930 F. Supp. 2d 439,

453-54 (E.D.N.Y. 2013) (Plaintiffs’ allegations that they would not have paid more for an immune

support product “[h]ad [they] known the truth that the statements [they] relied on were false,

misleading, deceptive, and unfair” was “sufficient economic injury for purposes of clearing

standing's injury bar.”). Accordingly, I find that Plaintiffs have set forth sufficient factual

allegations to permit a factfinder to conclude that they suffered at least some modicum of economic

injury. 4 Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 294 (3d Cir. 2005).

JJCI’s argument that a refund deprives Plaintiffs of standing is unconvincing for several

reasons. In addressing JJCI’s argument, the Court notes that the plaintiffs fall into two categories:

(1) Plaintiff Potts who received a refund, and (2) the remaining plaintiffs who JJCI argues did not

take advantage of purported refund program.5 First, in support of their argument, JJCI cites to the

4 Having found that Plaintiffs’ satisfied their standing requirements based on their alleged

physical injuries and economic harm, the Court need not address JJCI’s remaining argument that

Plaintiffs lack standing due to a speculative price-inflation theory. (MTD, at 24-27.) Notably,

JJCI’s price-inflation argument rests heavily on the same data “from adverse event reports” (Id. at

28, 33-35), that the Court declines to consider on a motion to dismiss when considering JJCI’s

argument that it does not owe a duty-to-warn Plaintiffs. See infra.

5 JJCI claims it has a refund program to provide “full refunds to unsatisfied consumers who

request” refunds. (MTD, at 1, 7.) Specifically, those customers who make a “product quality

complaint to JJCI” can “receive a replacement product, a voucher, or a full refund of the purchase

price paid” on request. (Id. at 8.)

Ninth Circuit case, Luman v. Theismann, which affirmed, in part, the dismissal of a plaintiff’s

individual claim for monetary relief in a consumer class action brought under California consumer

fraud statutes. 647 Fed. App’x 804, 806-07 (9th Cir. April 8, 2016). The plaintiffs in Luman

alleged that the defendants misrepresented the effectiveness of a prostrate disease treatment

product, Super Beta Prostate, and brought breach of warranty and false advertising claims based

on the allegation that Super Beta Prostate allegedly did not safely and effectively treat the

plaintiffs’ condition as advertised. Luman v. Theismann, No. 2:13-cv-00656-KJM-AC, 2014 U.S.

Dist. LEXIS 14038, at *2 (E.D. Cal. Feb. 3, 2014). The defendants argued that one plaintiff lacked

standing to sue because he was made whole by virtue of receiving a refund for his purchase. Id.

at *9. The district court, in dismissing the action, noted that the plaintiffs were not seeking other

forms of relief for other injuries as a result of using the defendants’ product, “such as a worsening

[of] his prostrate condition or other physical harm,” and, therefore, “received complete restitution.”

Id. at *14. The Ninth Circuit concluded the plaintiff “no longer met the injury-in-fact requirement

for standing at the time he filed his complaint.” Luman, 647 F. App’x at 807.

Here, unlike the plaintiff in Luman, Plaintiffs, including Potts, do allege that they suffered

physical injuries from the use of JJCI’s products—Plaintiffs claim they developed rashes,

inflamed, itchy and peeling skin, and burning sensations. (SAC, ¶¶ 13-15.) Moreover, while JJCI

argues that Potts is similar to the plaintiff in Luman because she received a refund for $6.50, (see

Oliveira Decl., ¶ 11 & Ex. B), Potts maintains that the $6.50 reimbursement she received “does

not fully compensate her for the $13.99 plus tax that she paid at the time of purchase.” (See

Declaration of Jamie Potts in Support of Plaintiffs’ Opposition to Defendant’s Motion to Dismiss,

¶¶ 2-6.) No such factual dispute was present in Luman “where it appear[ed] [the defendant]

remitted the refunds” to the plaintiff for the full purchase price of the product and the plaintiffs did

not challenge that they were fully refunded. Luman, 2014 U.S. Dist. LEXIS 14038, at *4-5. JJCI’s

reliance on Luman, therefore, is unpersuasive.

As for Plaintiffs Mileszko, Luka, and Gonzalez, JJCI argues that they “must” allege that

they sought a refund and were subsequently denied a refund by JJCI, and their failure to do so

demonstrates a lack of standing. (MTD, at 21-22.) In support of its argument, JJCI relies on In re

McNeil Healthcare, 877 F. Supp. 2d 254 (E.D. Pa. 2012).

As a general matter, a plaintiff’s failure to seek or accept a refund does not preclude

standing. See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 165-66 (2016) (“[A]n unaccepted

settlement offer … does not moot a plaintiff’s case.”); Laurens v. Volvo Cars of N. Am., LLC, 868

F.3d 622, 627 (7th Cir. 2017) (finding that an unaccepted refund offer made prior to suit does not

deprive plaintiffs of standing); In re Mattel, Inc., 588 F. Supp. 2d 1111, 1117 (C.D. Cal. 2008)

(“[U]nilateral offering of a remedy by a defendant does not change the fact that a plaintiff has been

injured.”); see also Martelack v. Toys R Us, No. 13-7098, 2016 U.S. Dist. LEXIS 23271, at *7

(D.N.J. Feb. 25, 2016) (defendant’s unaccepted tender of a check did not moot plaintiff’s unpaid

wage claims against employer) (citing Gomez, 577 U.S. at 165-66). Even the court in In re McNeil,

a case upon which JJCI relies, “accept[ed] that the mere existence of a refund offer is not sufficient

to defeat standing.” In re McNeil, 877 F. Supp at 273.

In re McNeil involved over-the-counter medications manufactured by the defendants, and

some of those medications were subject to a recall. In re McNeil, 877 F. Supp. 2d at 257. Twenty-

four plaintiffs alleged that the defendants concealed the products’ quality control issues, which led

to the plaintiffs paying inflated prices for the inferior products. Id. For the products that were

recalled, the plaintiffs alleged that defendant’s official refund program would be adequate to

compensate fully for their economic injuries. Id. at 273. As here, those twenty-four plaintiffs were

grouped into two categories: those who sought a refund and those who did not. Id. at 273-77.

The court found while plaintiffs alleged facts that demonstrated they were entitled to a refund, due

to a “speculative chain of inferences” based on experiences that other plaintiffs had with the refund

program, they “elected not to receive one.” Id. 275-76. The court concluded that “[a]lthough the

defendants’ refund program cannot defeat standing on its own, the absence of any allegation that

the refund offer was insufficient based on the experience of a named plaintiff is fatal.” Id. at 273

(emphasis in the original) (citing Lujan, 504 U.S. at 560 n.1). In other words, the plaintiffs could

not, for standing purposes, allege that they suffered an injury-in-fact by relying on the experiences

others who had with the refund program to show that the program was somehow inadequate. Id.

at 276.

Based on the factual circumstances and pleadings in In re McNeil, that case is

distinguishable. Here, noticeably lacking is any allegation of a refund program in the SAC. Even

if JJCI’s unofficial refund program exists, there are no allegations that it would have made

Plaintiffs whole. For one, Plaintiff Potts claims that she only received a partial refund. But, more

importantly, each plaintiff alleges that he/she suffered a physical injury that a refund could not

compensate: Plaintiff Mileszko claims she purchased the Products for her daughter and that her

daughter developed “visibly raised bumps” that caused “burning and discomfort” and skin peeling.

(SAC, ¶ 13.) Plaintiff Luka alleges she used the Products around her eyes and cheeks and

developed “inflamed and itchy” skin and swelling around those areas. (Id., ¶ 14.) Plaintiff

Gonzalez alleges similar experiences of “red and inflamed” skin and itching and burning

sensations following use of the Products. (Id., ¶ 15.) Those injuries are also fairly traceable to

JJCI’s alleged wrongful conduct—Plaintiffs allege that JJCI’s products include misleading

information about the Products’ qualities and omit necessary warnings about potential adverse skin

reactions that were suffered by some consumers of which JJCI was aware. (Pl. Mov. Br., at ¶¶ 12,

16, 23, 26, 27, 44, 165.) Accordingly, I reject JJCI’s argument that the failure to apply for a refund

deprives Plaintiffs standing to bring suit.

2. Injunctive Relief

Next, JJCI argues that Plaintiffs cannot seek injunctive relief, because they were aware of

the supposed risks of using the Products, and therefore, cannot reasonably claim that they are likely

to buy the Products again in the immediate future. (MTD, at 23-24.) In other words, JJCI argues

that Plaintiffs cannot show an ongoing harm such that they can seek injunctive relief. I agree.

In order to have standing to seek injunctive relief, Plaintiffs must establish that they are

“likely to suffer future injury from the defendant’s conduct.” McNair v. Synapse Group Inc., 672

F.3d 213, 223 (3d Cir. 2012) (citation omitted). When seeking prospective injunctive relief, the

plaintiff must allege the likelihood of future or continuing harm. (City of Los Angeles v. Lyons,

461 U.S. 95, 111 (1983)).

Plaintiffs claim they “would consider” and “desire” purchasing the Products for themselves

and others in the future if: (1) the labels and JJCI’s marketing representations provided warnings

that the Products “were not suitable for all skin types”, (2) if JJCI recommended “a pre-use patch

test”, and (3) also “advised to cease use and consult a physician if the[y] experienced adverse skin

conditions after using” the Products. (SAC, ¶¶ 16, 77.) However, Plaintiffs candidly acknowledge

that they are unable to rely on the Products’ labels to “know if the issue complained of has been

rectified.” (Pl. Opp. Br., at 32.) Because Plaintiffs state clearly that they have suffered adverse

skin reactions from use of the Products, and are obviously aware of the alleged risks associated

with such use, I conclude that Plaintiffs cannot establish that they are “likely to suffer future injury

from the defendant’s conduct.” In re Johnson & Johnson Talcum, 903 F.3d at 292 (quoting

McNair, 672 F.3d at 223).

Under these circumstances, Plaintiffs’ alleged desire to purchase the Products in the future

as a means of establishing the likelihood that they will suffer an ongoing harm, is pure speculation.

Id. at 225 (“law accords people the dignity of assuming that they act rationally, in light of the

information they possess.”); see also In re Johnson & Johnson Talcum, 903 F.3d at 292-93

(rejecting plaintiff’s claim of a desire to purchase allegedly harmful product in the future as a

means of establishing the likelihood of future injury). As the court in In re Johnson explained, a

plaintiff’s appreciation for the alleged risks raises the question as to how they can fall prey twice

to defendant’s alleged deceptive conduct without being aware of those same risks. Id.

Accordingly, because I find that Plaintiffs have failed to establish a reasonable likelihood of future

injury, their request for injunctive relief is struck from the SAC. See Lyons, 461 U.S. at 109

(denying plaintiff’s injunctive relief request because he could not demonstrate “a reasonable

showing that he will again be subjected to the alleged illegality.”).

B. Failure to State a Claim

1. Failure-to-Warn and Omission Claims

JJCI contends that Plaintiffs’ “failure-to-warn and omission” claims6 fail under Rule

12(b)(6) on two grounds. First, JJCI argues there is no duty to warn of “rare, idiosyncratic,

hypersensitive, or unusual reactions” to the Products under California, New York, Florida, and

New Jersey law. (MTD, at 30-35.) Second, JJCI claims Plaintiffs’ failure-to-warn and omission

claims are expressly and impliedly preempted by federal law. (Id., at 35-41.)

6 JJCI refers to the violations of various states’ consumer protection statutes as Plaintiffs’

“failure-to-warm and omission” claims, which encompasses Counts One through Eight of the

SAC, and it seeks to dismiss those claims based on preemption and lack of duty-to-warn.

In making the argument that it does not owe a duty to warn consumers, JJCI claims that

Plaintiffs failed to plead “any actual facts sufficient to allege that the claimed adverse skin

reactions are anything other than rare, unusual, and experienced at most by an infinitesimally

small” number of users. (MTD, at 33) (emphasis in original). As proof that adverse skins

reactions are rare, JJCI provides, for example, a declaration from Kenneth Henderson, who

certifies that he was employed by JJCI from September 2017 through September 2010 as Senior

Director, North America Regional quality & Compliance. (Id., Ex. A to the Declaration of

Kenneth Henderson, at ¶ 1). Relying on that declaration, JJCI explains that “event reports for the

Products” used in the United States were reviewed by JJCI who determined that from April 1,

2015, through June 30, 2017, there were total of 254 adverse event reports out of 80,349,358 units

of the Product “distributed” throughout the country. (Id., at 8-9.) According to JJCI, 99.6% of the

254 adverse events were “non-serious and transient in nature.” (Id.) JJCI concludes that this

adverse reaction rate falls into the category of “very rare” under the Guidelines of the Council for

International Organizations of Medical Science’s guidelines. (Id., at 10, 34); (see MTD, Ex. B,

Allergens in Cosmetics). This argument, however, is cannot be made and supported on a motion

to dismiss.

First and foremost, the Court may not consider documents, such as the certifications that

JJCI attaches, here, unless the document’s authenticity is undisputed by the plaintiff and

“plaintiff’s claims are based on the document.” See Pension Benefit Guar. Corp. v. White Consol.

Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); see also In re Burlington Coat Factory Sec. Litig.,

114 F.3d 1410, 1426 (3d Cir. 1997). JJCI does not—nor could it—argue that Plaintiffs relied on

the documents in their SAC. Furthermore, Plaintiffs object to these studies as being “self-

conducted, exculpating” and outside the scope of the pleadings. (Pl. Opp. Br., at 38.) Indeed, the

Court cannot dismiss, at this stage, Plaintiffs’ claims based on JJCI’s proposed theory that because

the alleged unusual reactions are rare, there is no duty to warn consumers regarding the alleged

adverse reactions suffered by Plaintiffs, because doing so would go beyond the face of the

pleadings.

2. Preemption

Second, JJCI contends that Plaintiffs’ “failure-to-warn and omission” claims, found in

Counts One through Eight of the SAC, are expressly and impliedly preempted by federal law. In

analyzing JJCI’s preemption argument, the Court begins with the well-established legal

assumption that “the historic police powers of the States were not to be superseded by the Federal

Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp.,

331 U.S. 218, 230 (1947).

The Federal Act in question here, the Food, Drug and Cosmetic Act (“FDCA”), establishes

broad proscriptions for cosmetics labeling. For example, labeling that is “false or misleading in

any particular” under 21 U.S.C. § 362(a), “shall be deemed to be misbranded.” 7 21 U.S.C. § 362,

7 A cosmetic shall be deemed to be misbranded—

(a) If its labeling is false or misleading in any particular.

(b) If in package form unless it bears a label containing (1) the name and place of business of the

manufacturer, packer, or distributor; and (2) an accurate statement of the quantity of the contents

in terms of weight, measure, or numerical count: Provided, That under clause (2) of this

paragraph reasonable variations shall be permitted, and exemptions as to small packages shall be

established, by regulations prescribed by the Secretary.

(c) If any word, statement, or other information required by or under authority of this Act to

appear on the label or labeling is not prominently placed thereon with such conspicuousness (as

compared with other words, statements, designs, or devices, in the labeling) and in such terms as

to render it likely to be read and understood by the ordinary individual under customary

conditions of purchase and use.

(d) If its container is so made, formed, or filled as to be misleading.

(e) If it is a color additive, unless its packaging and labeling are in conformity with such

packaging and labeling requirements, applicable to such color additive, as may be contained in

regulations issued under section 721 [21 USCS § 379e]. This paragraph shall not apply to

packages of color additives which, with respect to their use for cosmetics, are marketed and

et seq. The FDCA’s preemption specific statute is contained in 21 U.S.C. § 379s, et seq. JJCI

points to § 379s(a), which prohibits states and local government from “establish[ing] or

continu[ing] in effect any requirement for labeling or packaging of a cosmetic that is different from

or in addition to, or that is otherwise not identical with” federal guidelines. 21 U.S.C. § 379s(a).

JJCI contends that this language expressly preempts Plaintiffs’ “additional state-law warnings and

disclosure requirements” of California, New York, New Jersey, and Florida, because those laws,

JJCI argues, go beyond the FDA’s disclosure requirements. (MTD, at 36-37.)

On the other hand, Plaintiffs argue that the FDCA does not preempt state laws that are

aligned with the federal statute. See Critcher v. L'Oreal USA, Inc., 959 F.3d 31, 35 (2d Cir. 2020).

They further argue that the various state statutes governing cosmetic labeling are either identical

or substantially similar to the requirements under the FDCA, which prohibits “labeling that is false

or misleading in any particular.” (Pl. Opp. Br., at 35-36); see 21 U.S.C. § 362(a); N.J.S.A § 24:5-

18.1; N.Y. Educ. Law § 6818; Cal. Health & Safety Code § 111730; Fla. Stat. Ann. § 499.009.

Plaintiffs also contend that JJCI failed to inform consumers of material information regarding the

safety of the Products in violation of 21 C.F.R. § 740.1, which requires a manufacturer to include

in its product labels, “a warning statement whenever necessary or appropriate to prevent a health

hazard that may be associated with the product.” (Complaint, at ¶ 28) (citing 21 C.F.R § 740.1).

Importantly, JJCI overlooks § 379s(d) of the FDCA which states that “[n]othing in this

section shall be construed to modify or otherwise affect any action or the liability of any person

under the product liability law of any State.” 21 U.S.C. § 379s(d). Contrary to JJCI’s assertion,

intended for use only in or on hair dyes (as defined in the last sentence of section 601(a) [21

USCS § 361(a)]).

(f) If its packaging or labeling is in violation of an applicable regulation issued pursuant to

section 3 or 4 of the Poison Prevention Packaging Act of 1970 [15 USCS § 1472 or 1473].

the FDCA does not amount to an absolute bar to Plaintiffs’ state products liability claims in this

context. In fact, Congress, through § 379s(d)’s savings clause, expressly preserved state product

liability actions involving cosmetics. See Wyeth v. Levine, 555 U.S. 555, n.8 (2009); Astiana v.

Hain Celestial Grp., Inc., 783 F.3d 753 (9th Cir. 2015) (concluding that “the FDCA does not

preempt state laws that permit consumers to sue cosmetics manufacturers that label or package

products in violation of federal standards.”); In re Epogen & Aranesp Off-Label Mktg. & Sales

Practices Litig., 590 F. Supp. 2d 1282, 1290 (C.D. Cal. 2008) (holding that “[t]he existence of the

FDCA does not completely preclude injured parties from asserting claims of fraud or false

advertising. Other legislation, state and federal, remains in effect to protect consumers from false

and deceptive prescription drug advertising”); Jovel v. I-Health, Inc., No. 12-5614, 2013 U.S. Dist.

LEXIS 139661, at *15 (E.D.N.Y. Sep. 27, 2013).

Tellingly, JJCI fails to explain how Plaintiffs’ state law claims require labeling or

packaging of a cosmetic that differs from, or adds to, the federal guidelines. Moreover,

significantly, JJCI has not pointed to any federal requirements that govern the labeling of their

products that contradict the type of labeling Plaintiffs seek to impose through state law. Rather,

the FDCA prohibits false or misleading labeling of cosmetics, see 21 U.S.C. §362(a), in similar

fashion as to states’ laws that Plaintiffs rely upon as bases for violations of the consumer fraud

statutes. See, e.g., N.J.S.A § 24:5-18.1; N.Y. Educ. Law § 6818; Cal. Health & Safety Code §

111730; Fla. Stat. Ann. § 499.009. Indeed, “[P]laintiffs’ claims, if proven to be true, would simply

require Defendant to truthfully state [the] efficacy [of its products] or not sell its products; such

relief would not impose a state requirement that is ‘different from or in addition to, or that is

otherwise not identical with’ that of the FDCA.” Reid v. GMC Skin Care USA Inc., No. 15-277,

2016 U.S. Dist. LEXIS 14001, at *28 (N.D.N.Y. Jan. 15, 2016) (quoting Delarosa v. Boiron, Inc.,

818 F. Supp. 2d 1177, 1189-90 (C.D. Cal. 2011)). Accordingly, I reject JJCI’s assertion that

Plaintiffs’ “failure-to-warn and omission” claims, i.e., Counts One through Eight, are preempted

“unless and until the FDA determines the Products violate the FDCA and 21 C.F.R. § 740.1.”

(MTD, at 41.)

Accordingly, JJCI’s motion to dismiss is denied as to the “failure-to-warn and omission”

claims and they shall proceed.

3. Negligent Omission Claim

Next, JJCI submits that Plaintiffs’ claim for “Negligent Omission” should be dismissed,

because the economic loss rule bars Plaintiffs’ claim under the laws of New York, New Jersey,

and Florida, and separately, California law does not recognize “negligent omission” as a cause of

action. (Id., at 42-47.) Plaintiffs, however, in reply, do not challenge JJCI’s argument. Instead,

Plaintiffs ask the Court for leave to amend their negligent omission claims “to incorporate

contractual theories of recovery upon which a [n]egligent [o]mission claim may be predicated.”

(Pl. Reply Br., at 47.) In short, Plaintiffs have conceded that failed to sufficiently plead this claim,

and therefore, it is dismissed without prejudice.

4. Unjust Enrichment Claim

Finally, JJCI argues that Plaintiffs’ unjust enrichment claim should be dismissed, because

it is an equitable relief claim based on the same allegations as Plaintiffs’ legal claims, and Plaintiffs

have not shown that they lack an adequate remedy at law. (MTD, at 47.) Relying solely on New

Jersey law, JJCI maintains that dismissal of this claim is appropriate, because the SAC alleges that

each of the named Plaintiffs purchased the Product from third-party retailers, and not directly from

JJCI. (Id. at 48.) According to JJCI, this fact prevents Plaintiffs from establishing the requisite

“direct relationship” between plaintiff and defendant that New Jersey law demands for any viable

unjust enrichment claim. (Id. at 48-49) (citing Hughes v. Panasonic Consumer Elecs. Co., No. 10-

846, 2011 U.S. Dist. LEXIS 79504, *78-79 (D.N.J. July 21, 2011)).

As an initial matter, Plaintiffs, in the Complaint, assert that JJCI “benefitted from selling,

at an unjust profit, mislabeled and dangerous [] Products that had artificially inflated prices due

to” JJCI’s alleged “concealment of the potential for serious injury,” and “received and retained

unjust benefits from Plaintiffs and the other members of the Nationwide Class and state

Subclasses.” (SAC, ¶¶ 174-75.) While Plaintiffs seek to bring unjust enrichment claims under the

laws of California, Florida, New Jersey, and New York, they do not specifically allege any of the

elements of each of the state’s law; rather, their allegations are too conclusory to pass Rule 12(b)(6)

muster. Put simply, on their face, Plaintiffs’ unjust enrichment claims are not sufficiently pled.

In any event, I find that Plaintiffs may not bring a New Jersey unjust enrichment claim.

Indeed, JJCI correctly argues that in order to claim unjust enrichment, New Jersey law requires a

direct relationship between the parties. Cooper v. Samsung Elecs. Am. Inc., No. 07-3853, 2008

U.S. Dist. LEXIS 75810, at *29-31 (D.N.J. Sep. 29, 2008) (plaintiff’s purchase of television

through third-party retailer did not directly confer benefit on manufacturer-Samsung within the

meaning of New Jersey’s doctrine of unjust enrichment.); Premier Pork L.L.C. v. Westin Inc., No.

07-1661, 2008 U.S. Dist. LEXIS 20532, at *41 (D.N.J. Mar. 17, 2008) (“[Q]uasicontract claims

involve either some direct relationship between the parties or a mistake on the part of the person

conferring the benefit.”); Union Trust Co. of Md. v. Wakefern Food Corp., No. 86-728, 1989 U.S.

Dist. LEXIS 11754, at *62 (D.N.J. Sep. 8, 1989) (“[U]njust enrichment requires a relationship or

course of dealings between parties which, if left undisturbed by the intervention of the law, permits

one party to obtain ‘unjust enrichment or unconscionable advantage’ over the other.”) (citation

omitted); Callano v. Oakwood Park Homes Corp., 91 N.J. Super. 105, 109 (App. Div. 1966) (citing

importance of either a direct relationship or a mistake in quasi-contract).

Here, Plaintiffs are consumers who purchased the Products from third-party retailers, such

as CVS Pharmacy and Costco. And, there is no dispute that Plaintiffs did not purchase the

cosmetic products directly from JJCI, which is a manufacturer, not a retailer. In that respect,

Plaintiffs did not confer any benefit directly on JJCI. Hence, Plaintiffs cannot sustain an unjust

enrichment claim under New Jersey law.

Although the Court is giving Plaintiffs leave to amend their unjust enrichment claims

pursuant to the laws of California, New York and Florida--since they are not adequately pled, and

because JJCI has not addressed the substantive law of these states, as it did for New Jersey--when

amending, Plaintiffs are well-advised that these states differ as to whether a plaintiff must directly

confer a benefit on a defendant in order to adequately plead an unjust enrichment claim.

A review of Florida law indicates that, like New Jersey, Florida requires that a party confer

the benefit directly, as well. See, e.g., Am. Safety Ins. Serv., Inc. v. Griggs, 959 So. 2d 322, 331

(Fla. Dist. Ct. App. 2007) (“[P]laintiffs must show they directly conferred a benefit on the

defendants.”); Peoples Nat’l Bank of Commerce v. First Union Nat’l Bank of Florida, 667 So. 2d

876, 879 (Fla. Dist. Ct. App. 1996) (“[T]he plaintiff … could not and did not allege that it had

directly conferred a benefit on the defendants.”); Nova Information Sys., Inc. v. Greenwich Ins.

Co., 365 F.3d 996, 1006-07 (11th Cir. 2004) (plaintiff’s reimbursement to third-party did not

confer a direct benefit on the defendant, and at most conferred an indirect or incidental benefit).

Also, in addition to the three elements of unjust enrichment outlined supra, Florida requires that a

plaintiff satisfy an additional element: that the defendant “had knowledge”8 of the benefit

conferred on them.

New York’s theory of unjust enrichment requires three elements that are similar to New

Jersey’s: (1) “the other party was enriched, (2) at that party’s expense, and (3) that it is against

equity and good conscience [to permit the other party] to retain what is sought to be recovered.

New York law also appears to require that the benefit be conferred directly.” Mandarin Trading

Ltd. v. Wildenstein, 16 N.Y.3d 173, 182 (2011) (citations omitted)). However, there appears to be

disagreement amongst the courts of New York as to the degree of the relationship that is needed

between the parties to sustain an unjust enrichment claim. Compare T.D. Bank, N.A. v. JP Morgan

Chase Bank, N.A., No. 10-CV-2843, 2010 U.S. Dist. LEXIS 109471 (E.D.N.Y. Oct. 14, 2010)

(Bank’s failure to allege privity or direct dealings between itself and party do not defeat claims for

unjust enrichment); Mfrs. Hanover Tr. Co. v. Chem. Bank, 559 N.Y.S.2d 704, 708 (App. Div. 1st

Dept. 1990) (noting that “(i)t does not matter whether the benefit is directly or indirectly conveyed”

in addressing an unjust enrichment claim where the parties had direct contact with one another);

Dreieck Finanz AG v Sun, No. 89 Civ. 4347, 1989 U.S. Dist. LEXIS 9623, at *13 (S.D.N.Y. Aug.

14, 1989) (The District Court, in applying New York law, concluded it was not “necessary for

plaintiff and defendant to have had direct dealings with one another.”); with Sperry v. Crompton

Corp., 810 N.Y.S.2d 488, 489 (App. Div. 2nd Dept. 2006) (affirming lower court’s decision to

dismiss plaintiff’s claim to recover damages for unjust enrichment because plaintiff lacked privity

8 “In order to prove unjust enrichment, the Receiver must show: (1) that he conferred a

benefit on Defendants, (2) who had knowledge thereof, (3) that Defendants voluntarily accepted

and retained the benefit conferred, and (4) that the circumstances are such that it would be

inequitable for Defendants to retain the benefit without paying the value thereof to the Receiver.”

(Goldberg v. Chong, No. 07-20931, 2007 U.S. Dist. LEXIS 49980, at *23 (S.D. Fla. July 11, 2007)

(citing Nova, 365 F.3d 996 at 1006-07.)).

with defendants); Xaleron Pharm., Inc. v. Actavis, Inc., No. 150587/2016, 2016 N.Y. Misc. LEXIS

3271, at *12 (Sup. Ct. N.Y. Cty. Sept. 12, 2016) (“[A] plaintiff cannot succeed on an unjust

enrichment claim unless it has a sufficiently close relationship with the other party that ‘could have

caused reliance or inducement.’”) (quoting Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d 511,

517 (2012)); Ambrosino Constr. Corp. v. Galasso, 975 N.Y.S.2d 707 (Sup. Ct. 2013) (unjust

enrichment claim dismissed for lack of privity).

Until recently, California’s case law on whether a plaintiff could proceed with an unjust

enrichment claim as an independent cause of action “was uncertain and inconsistent.” Bruton v.

Gerber Prods. Co., No. 15-15174, 2017 U.S. App. LEXIS 12833, at *2 (9th Cir. July 17, 2017).

As the Ninth Circuit in Bruton recognized, the California Supreme Court has permitted plaintiffs

to bring independent claims for unjust enrichment. Id. However, in California, a lack of a direct

relationship between the parties is not necessarily fatal to their unjust enrichment claim. See

Hartford Cas. Ins. Co. v. J.R. Mktg., L.L.C., 61 Cal. 4th 988, 998 (2015) (“[A] privity of

relationship between parties is not necessarily required.”) (citing Buss v. Superior Court, 16 Cal.

4th 35, 51 (1997)); CTC Real Estate Servs. v. Lepe, 140 Cal. App. 4th 856, 861 (2006) (“[D]octrine

of unjust enrichment [is] a theory which can, in some instances, have validity without privity of

relationship.” (quoting Kossian v. Am. Nat'l Ins. Co., 254 Cal. App. 2d 647, 650 (1967))).

Plaintiffs are given leave to amend their unjust enrichment claims under California, Florida,

and New York. In doing so, Plaintiffs should be mindful of the differences in each state’s unjust

enrichment law, in order to sufficiently plead them, or whether to bring them at all based upon

whether a claim can be stated.

As a final note, in the SAC, it is unclear if the unjust enrichment claims are brought solely

within each of the proposed subclasses, or whether Plaintiffs seek a nationwide class with an unjust

enrichment claim. If Plaintiffs intend to assert an unjust enrichment claim on behalf of a

nationwide class, they must, in their amended pleadings, specify upon which states’ laws they rely.

III. CONCLUSION

For the foregoing reasons, JJCI’s Motion to Dismiss is GRANTED in part and DENIED

in part as follows: (i) JJCI’s motion is denied as to Counts one through eight, which are Plaintiffs’

“failure-to-warn and omission” claims; (ii) the motion is granted as to Count Nine, negligent

omission, and Count Ten, unjust enrichment, and those claims are dismissed without prejudice,

with the exception of the New Jersey unjust enrichment claim, which is dismissed with prejudice;

and (iii) Plaintiffs’ request for injunctive relief is struck from the SAC. Plaintiffs are given leave

to amend their negligent omission and unjust enrichment claims in accordance with the dictates of

this Opinion. When amending their complaint, Plaintiffs must also clarify which of the seven

products listed in the SAC were purchased and used by Plaintiffs and/or their children. See infra.

The Third Amended Complaint must be filed no later than 21 days from the date of the Order

accompanying this Opinion.

Dated: May 28, 2021 /s/ Freda L. Wolfson

Freda L. Wolfson

U.S. Chief District Judge