# Howze v. Mondelez Global LLC

> District Court, W.D. New York · January 5, 2023

URL: https://www.frixlaw.com/law-library/cases/10365743

## Case

- **Court:** District Court, W.D. New York
- **Decided:** January 5, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

TES
UNITED STATES DISTRICT COURT SS □□
WESTERN DISTRICT OF NEW YORK
ttn ty &
ZILPHIA HOWGZE, individually and on
behalf of all others similarly situated,

Plaintiff, 22-CV-351 (JLS)
v.
MONDELEZ GLOBAL LLC
Defendant.

DECISION AND ORDER
Defendant Mondeléz Global LLC makes and sells “Lorna Doone” shortbread
cookies. Plaintiff Zilphia Howze claims that Defendant’s business practices with
respect to the sale of its Lorna Doone shortbread cookies are misleading. She
commenced this action alleging deceptive acts or practices and false advertising in
violation of New York General Business Law Sections 349 and 350 and—on behalf
of a Consumer Fraud Multi-State Class—the consumer fraud statues of Louisiana,
Maine, New Mexico, Rhode Island, and Texas. She also sets forth claims for breach
of warranty, negligent misrepresentation, fraud, and unjust enrichment. Defendant
moved to dismiss. For the following reasons, Defendant’s motion is granted.
BACKGROUND
Plaintiff alleges that she purchased Lorna Doone shortbread cookies “on one
or more occasions” at “stores including CVS.” Dkt. 1, §/ 76. She further alleges that
she “believed and expected” that the shortbread cookies “contained ingredients

expected of shortbread, like some amount of butter, instead of not having any
butter.” Id. J 77. She claims that she “would not have paid as much” for the
product had she been aware that the “representations and omissions” by Defendant
regarding the product were “false and misleading.” Id. 82, 84. The Complaint
includes pictures of the product’s packaging, which reveals that nowhere does the
packaging indicate that product contains butter. See id. Jf 1, 27. Rather, the
ingredient list indicates that the fats are “canola oil” and “palm oil.” Id. { 27.
Defendant moved to dismiss, arguing that the consumer protection claims
fail because Plaintiff does not allege that reasonable consumers are likely to be
deceived by the product’s packaging. According to Defendant, no reasonable
consumer would construe the term “shortbread” as a representation about the
product’s ingredients. See Dkt. 11-1, at 8.! Instead, “a reasonable consumer would
construe ‘shortbread’ as a representation about the cookies’ characteristic taste and
texture.” Id. Defendant also argues that each of Plaintiffs remaining claims
contain particular legal defects that warrant dismissal. Jd. at 9. Lastly, Defendant
asserts that Plaintiff lacks standing to seek injunctive relief. Jd. at 28-30.
STANDARD OF REVIEW
On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “the court’s task is to
assess the legal feasibility of the complaint.” Lynch v. City of New York, 952 F.3d
67, 75 (2d Cir. 2020). In doing so, the Court “must take the facts alleged in the

1 Unless otherwise noted, page references refer to numbering generated by CM/ECF
in the header of each page.
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complaint as true, drawing all reasonable inferences in [the plaintiffs] favor.” In re
NYSE Specialists Sec. Litig., 503 F.8d 89, 91 (2d Cir. 2007). To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Courts “are not bound to accept as true a legal conclusion couched as a
factual allegation,” and “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
This standard demands “more than a sheer possibility that a defendant has
acted unlawfully.” Id. Plausibility “depends on a host of considerations: the full
factual picture presented by the complaint, the particular cause of action and its
elements, and the existence of alternative explanations so obvious that they render
plaintiffs inferences unreasonable.” Fink v. Time Warner Cable, 714 F.3d 739, 741
(2d Cir. 2013) (quoting L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d
Cir. 2011).
DISCUSSION
I. PLAINTIFF’S CONSUMER PROTECTION CLAIMS
A. Legal Standard
N.Y. Gen. Bus. L. Section 349 prohibits “[d]eceptive acts and practices in the

conduct of any business, trade or commerce or in the furnishing of any service.” A
“deceptive act[ ]” or practice is one that is “likely to mislead a reasonable consumer
acting reasonably under the circumstances.” Maurizio v. Goldsmith, 230 F.3d 518,
521 (2d Cir. 2000). N.Y. Gen. Bus. L. Section 350 prohibits “[flalse advertising in

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the conduct of any business, trade or commerce or in the furnishing of any service.”
The term “false advertising” means “advertising, including labeling . . . if such
advertising is misleading in a material respect.” N.Y. Gen. Bus. L. § 350-a(1). Both
provisions permit “any person who has been injured by reason of any violation”
thereof to bring an action to enjoin such unlawful act or practice, an action to
recover damages, or both. N.Y. Gen. Bus. L. §§ 349(h), 350-e(3).
To state a claim under N.Y. Gen. Bus. L. Section 349 or 350, a plaintiff must
allege that: (1) the defendant engaged in consumer-oriented conduct; (2) the conduct
was misleading in a material way; and (3) plaintiff was injured as a result of the
allegedly deceptive act or practice. Orlander v. Staples, Inc., 802 F.8d 289, 300 (2d
Cir. 2015). The standards under Sections 349 and 350 are “substantively identical.”
C.V. Starr & Co. v. Am. Intl Grp., Inc., No. O6CIV2157HB, 2006 WL 2627565 at
*3n.9 (S.D.N.Y. Sept. 14, 2006) (internal citation omitted). The test, at the second
element, is an objective one: the challenged conduct “must be materially deceptive
or misleading to a reasonable consumer acting reasonably under the
circumstances.” Nelson v. MillerCoors, LLC, 246 F. Supp. 3d 666, 674 (E.D.N.Y.
2017) Gnternal citation omitted). The Court may resolve this question on a motion
to dismiss. See Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013) (citing
Oswego Laborers’ Loc. 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d
20, 623 N.Y.S.2d 529, 647 N.E.2d 741, 745 (1995)) (“It is well settled that a court

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may determine as a matter of law that an allegedly deceptive advertisement would
not have misled a reasonable consumer”).?
The primary evidence “in a consumer-fraud case arising out of allegedly false
advertising is, of course, the advertising itself.” Fink, 714 F.3d, at 742. And in
“determining whether a reasonable consumer would have been misled by a
particular advertisement, context is crucial.” Id. In short, the Court must consider
the challenged advertisement “as a whole.” Mantikas v. Kellogg Company, 910 F.3d
633, 636 (2d Cir. 2018). .
B. Plaintiff Fails to Allege that Lorna Doone Packaging is
Misleading
Plaintiffs consumer protection claims must be dismissed because she has not
plausibly alleged that a reasonable consumer would be misled by the Lorna Doone
packaging as to whether the cookies contain butter.
Defendant does not expressly or implicitly represent that Lorna Doone
cookies contain butter. The product’s packaging does not state on the front label,
ingredient list, or anywhere else that butter is an ingredient in the cookies.
Further, nothing in the word “shortbread” itself would lead a reasonable consumer

2 Like N.Y. Gen. Bus. L. Sections 349 and 350, the consumer protection statutes
under the laws of Louisiana, Maine, New Mexico, Rhode Island, and Texas statues
also employ a “reasonable consumer” standard. See McGahey vu. Fed. Nat'l Mortg.
Ass'n, 266 F. Supp. 3d 421, 485 (D. Me. 2017) (Maine); Guidance Endodontics, LLC
v. Denisply Int'l, Inc., 749 F. Supp. 2d 1285, 1258 (New Mexico); Munsell v. Colgate-
Palmolive Co., 463 F. Supp. 3d 43, 52 (D. Mass. 2020) (Rhode Island); Olson v.
Major League Baseball, 29 F.4th 59, 84-85 (2d Cir. 2022) (Texas); Florence v.
Clinique Labs., Inc., 347 So. 2d 1232, 1236 (La. Ct. App. 1977) (Louisiana).

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to believe that the cookie must contain butter. Indeed, Merriam Webster Dictionary
defines “shortbread” as “a thick cookie made of flour, sugar, and a large amount of
shortening.” Shortbread, MERRIAM WEBSTER DICTIONARY, (last accessed Jan. 3, 2023) (emphasis added).3
Courts routinely dismiss consumer protection claims in similar
circumstances. See, e.g., Trouti v. Mondelez Glob. LLC, No. 21-CV-01279-SPM,
2022 WL 16552956, at *5 (S.D. Il. Oct. 31, 2022) (dismissing various claims against
Mondeléz Global LLC arising out of the allegedly misleading nature of Lorna Doone
packaging, reasoning that “it is a stretch for reasonable consumers to assume that a
product contains butter merely because it is identified as ‘shortbread’... .”); Stiles
v. Trader Joe’s Co., No. CV1604318TJHKSX, 2017 WL 3084267, at *4 (C.D. Cal.
Apr. 4, 2017) (dismissing claims that defendant misled consumers by including the
word “maple” in the name of names of two products (“Frosted Maple and Brown
Sugar Shredded Bite Size Wheats” and “Oatmeal Complete Maple and Brown
Sugar”) where “neither of the Products’ names advertises ‘maple syrup’ or ‘maple
sugar”); Turnipseed v. Simply Orange Juice Co., No. 20-CV-8677, 2022 WL 657413,
at *3 (S.D.N.Y. Mar. 4, 2022) (rejecting challenge to use of the word “vanilla” on
almond milk label “because there is nothing in the word ‘vanilla’ itself that would
lead a reasonable consumer to understand a product's flavor to be derived mostly or

3 A “short” pastry is created when a higher fat-to-flour ratio is used, allowing the fat
to immerse with the flour and prevent a “long” gluten structure—which results in a
crunchier pastry or crust. See, e.g., Fais and Oils: Shortening, LOVE FooD LOVE
SCIENCE, (last accessed Jan. 3, 2023).
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exclusively from the vanilla bean”); Wallace v. Wise Foods, Inc., No. 20-6831, 2021
WL 3163599, at *2 (S.D.N.Y. July 26, 2021) (rejecting challenge to representation of
potato chips as “Cheddar & Sour Cream Flavored,” reasoning that “[n]othing in the
label states or implies that the chips’ flavor is derived entirely from cheddar and
sour cream” or that “the chips are flavored only with natural ingredients’).
Even if Plaintiff were correct that shortbread is commonly made with butter,
her claim would fail because she has not plausibly alleged that the average
consumer believes that shortbread cookies necessarily contain butter. See Reiniiz v.
Kellogg Sales Co., No. 21-CV-1239-JES-JEH, 2022 WL 1813891, at *3 (C.D. Ill.
June 2, 2022) (dismissing consumer protection claim where, although the plaintiff
identified “evidence to support that credible third parties opine that ‘milkfat is the
central component of fudge,” the plaintiff “fail[ed] to support that the average
consumer would believe a fudge product must, of necessity, contain milkfat”)
(internal citations omitted). The same holds true even if an expert were to deem
butter essential to shortbread. See Lederman v. Hershey Co., No. 21-4528, 2022 WL
3573034, at *4 (N.D. Ill. Aug. 19, 2022) (“[E]ven if the reasonable confectionery
expert deems milkfat essential to fudge, Plaintiff has not shown that the reasonable
21st century consumer has the same expectations”).
The statement “shortbread” on the Lorna Doone label allows consumers to
understand the flavor and texture of the cookies and differentiate among products.
Absent any additional representations about how the flavor and texture are
achieved, the use of the term “shortbread” is not misleading. See Cosgrove v. Blue

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Diamond Growers, No. 19-8998, 2020 WL 7211218 (S.D.N.Y. Dec. 7, 2020)
(dismissing claim alleging that Vanilla Almond Milk was misleading because “a
reasonable consumer would associate the representation of ‘Vanilla’-—with no
additional language modifiers—to refer to a flavor and not to vanilla beans or
vanilla extract as an ingredient”).
In short, while avid bakers and pastry chefs might insist on butter in
shortbread—for reasons of tradition or quality or taste—it is unreasonable to
conclude that reasonable consumers would expect butter in a mass-produced
shortbread cookie—where the label and packaging are clear that there is no butter.
For these reasons, Plaintiffs consumer protection claims are dismissed.
II. PLAINTIFF’S REMAINING CLAIMS
In addition to her consumer protection claims, Plaintiff asserts claims for
breach of warranty, negligent misrepresentation, fraud, and unjust enrichment.
Dkt. 1, {4 105-132. Each of these claims is premised on the allegedly false or
misleading nature of the Lorna Doone packaging. See id. Because the Court has
determined that the Lorna Doone packaging is not materially misleading to
consumers, these additional causes of actions are dismissed for the reasons
discussed above. See Wallace, No. 20-6831, 2021 WL 3163599, at *3 (dismissing
state claims for breach of warranty, negligent misrepresentation, fraud, and unjust
enrichment for the same reasons the court dismissed corresponding claims under
N.Y. Gen. Bus. L. Sections 349 and 350); Barreto v. Westbrae Nat., Inc., 518 F.

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Supp. 3d 795, 806 (S.D.N.Y. 2021) (same). Further, each of these claims fails for
additional reasons that are discussed below.
A, Express Warranty and Implied Warranty of Merchantability
Plaintiffs claims for breaches of express and implied warranties rely on
identical allegations: Defendant manufactured and labeled Lorna Doone cookies in
a manner that “expressly and impliedly warranted to Plaintiff and class members
that it contained ingredients expected of shortbread, like some amount of butter,
instead of not having any butter.” See Dkt. 1, 4 105. The Complaint alleges that
Defendant had a duty—based on its “outsized role in the market” for this type of
product and reputation as a “trusted company known for its high[-]quality
products”—to “disclose and/or provide non-deceptive descriptions and marketing” of
the product. Jd. Jf 111-112. These claims fail.
i. Express Warranty
A claim for breach of express warranty under New York law requires a
plaintiff to allege an “affirmation of fact or promise by the seller, the natural
tendency of which was to induce the buyer to purchase and that the warranty was
relied upon.” Colptits v. Blue Diamond Growers, 527 F. Supp. 3d 562, 589 (S.D.N.Y.
2021) (citing Factory Assocs. & Exps., Inc. v. Lehigh Safety Shoes Co., 382 F. App’x
110, 112 (2d Cir. 2010) Ginternal quotations omitted). To survive a motion to
dismiss, a plaintiff must allege: “(1) the existence of a material statement
amounting to a warranty, (2) the buyer’s reliance on this warranty as a basis for the
contract with the immediate seller, (3) breach of the warranty, and (4) injury to the

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buyer caused by the breach.” Jd. (internal citation omitted). Generalized
statements by the defendant do not support an express warranty claim “if they are
such that a reasonable consumer would not interpret the statement as a factual
claim upon which he or she could rely.” Ault v. J.M. Smucker Co., 138-CV-3409, 2014
WL 1998235, at *6 (S.D.N.Y. May 15, 2014) (internal citations omitted). In
addition, to “successfully state a claim for breach of warranty, a buyer must provide
the seller with timely notice of an alleged breach of warranty.” Colella v. Atkins
Nutritionals, Inc., 348 F. Supp. 3d 120, 143 (E.D.N.Y. 2018) (internal citations
omitted).
Here, Lorna Doone packaging does not state that the product is made with
butter, and a reasonable consumer would not interpret the statement of
“shortbread” to make this claim. Further, the Complaint does not sufficiently allege
notice. Plaintiff alleges that she “provided or will provide notice to defendant, its
agents, its representatives, retailers and their employees.” Dkt. 1, 4 114. However,
this vague allegation does not indicate that Plaintiff did, in fact, provide notice. See
Campbell v. Whole Foods Mkt. Grp., Inc., 516 F. Supp. 3d 370, 391 (6.D.N.Y. 2021)
(rejecting verbatim pleading of notice as “wholly equivocal,” because it did “not
allege that notice has been provided, only that Plaintiff ‘provided or will provide’
notice”). As the Court reasoned in Campbell: “[i]f Plaintiff had provided notice, she
could have written that, rather than pleading, in essence, both that she did provide
notice, and that she did not do so but will in the future.” See id. at 391. Nor can
Plaintiff rely on her allegation that she satisfied the notice requirement by filing

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this lawsuit. See Dkt. 1, | 115. This does not establish that she provided “notice
before filing this lawsuit”—as New York law requires. Brown v. Kerry, Inc., No. 20-
9370, 2021 WL 5446007, at *8 (S.D.N.Y. Nov. 22, 2021) (emphasis added).
Plaintiff contends that pre-suit notice was not required here based on an
exception for retail customers crafted by certain New York state courts. See Dkt.
13, at 16. The Court disagrees. Although “a minority of New York State cases
suggest an exception to the notice requirement in retail sales ... the exception
appears to be exclusively applied when a party alleges physical, in addition to
economic, injury.” Colella, 348 F. Supp. 3d at 143-44. See Richards v. Johnson &
Johnson, Inc., No. 517-CV-00178, 2018 WL 6573382, at *4 (N.D.N.Y. Dec. 13, 2018)
(noting that the exception applies only to actions where personal injury is pleaded
and that a similar “distinct treatment of warranty claims in personal injury cases is
found in other jurisdictions”); Tomasino v. Estee Lauder Cos., Inc. No. 13-CV-4692,
2015 WL 4715017, at *4 (E.D.N.Y. Aug. 7, 2015) (rejecting the plaintiffs contention
that the retail sale exception applies, because “every case... in which courts
implementing New York law declined to apply the notice requirement . .. amounted
to a tort claim in which the plaintiff suffered some personal injury”). Because
Plaintiff only alleges economic injury in the form of a price premium paid for Lorna
Doone cookies, see, e.g., Dkt. 1, § 120, this potential exception is inapplicable in this
case.
For these reasons too, Plaintiffs claim for breach of express warranty fails.

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ii. Implied Warranty of Merchantability
A “breach of the implied warranty of merchantability occurs when the
product at issue is ‘unfit for the ordinary purposes for which such goods are used.”
Twohig v. Shop-Rite Supermarkets, Inc., 519 F. Supp. 3d 154, 167 (S.D.N.Y. 2021)
(citing N.Y.U.C.C. § 2-314(c)).
Here, Plaintiff fails to allege that Lorna Doone cookies are not of
merchantable quality, i.e., that they are unfit to eat. Her claim for breach of
implied warranty of merchantability therefore fails. See id. (dismissing implied
warranty claim because the plaintiff did not allege that the product at issue—
Soymilk—was “unfit to drink”); Silva v. Smucker Nat. Foods, Inc., No. 14-CV-6154,
2015 WL 5360022, at *11 (E.D.N.Y. Sept. 14, 2015) (dismissing implied warranty
claim because “[w]here the sale of a food or beverage is concerned, courts have ruled
that the product need only be fit for human consumption to be of merchantable
quality”).4

B. Negligent Misrepresentation
Plaintiffs negligent misrepresentation claim also must be dismissed. To
state a claim for negligent misrepresentation, a plaintiff must allege “‘(1) the
existence of a special or privity-like relationship imposing a duty on the defendant

4 To the extent Plaintiff asserts a claim under the Magnuson Moss Warranty Act, 15
U.S.C. §§ 2801, et seq (““(MMWA?”), see Dkt. 1, at 14, that claim is dismissed because
Plaintiff has not adequately pleaded a cause of action for breach of warranty. See
Garcia v. Chrysler Gr. LLC, 127 F. Supp. 3d 212, 232 (S.D.N.Y. 2015) (‘To state a
claim under the MMWA, plaintiffs must adequately plead a cause of action for
breach of written or implied warranty under state law”).
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to impart correct information to the plaintiff; (2) that the information was incorrect:
and (3) reasonable reliance on the information.” McBeth v. Porges, 171 F. Supp. 3d
216, 225 (S.D.N.Y. 2016) (quoting Crawford v. Franklin Credit Mgmt. Corp., 758
F.3d 478, 490 (2d Cir.2014)). To “plead a special relationship, plaintiffs must show
that they were a ‘known party or parties.” Barreto, 518 F. Supp. 3d at 8-7 (quoting
Sykes uv. RFD Third Ave. 1 Assoc., LLC, 15 N.Y.3d 370, 373 (2010)).
Here, Plaintiffs negligent misrepresentation claim fails because she fails to
allege a special relationship between the parties. She does not plead any facts
suggesting that her purchase of Lorna Doone cookies was anything but an arms-
length retail transaction. Absent any additional alleged facts to establish a special
relationship, Plaintiffs negligent misrepresentation claim must be dismissed. See
Stoltz v. Fage Dairy Processing Indus., S.A., No. 14-CV-3826 MKB, 2015 WL
5579872, at *25 (E.D.N.Y. Sept. 22, 2015) (“The requisite special relationship may
not, however, be based solely on Defendants’ status as the manufacturer of the
[product] because, if this alone were sufficient, a special relationship would
necessarily always exist for purposes of misbranded food claims, which is not the
case”) (collecting cases).
C. Fraud
Plaintiffs claim of fraud under New York law similarly fails. To state a claim
of fraud, a plaintiff must allege “(1) a material misrepresentation or omission of
fact, (2) made with knowledge of its falsity, (3) with an intent to defraud, and (4)
reasonable reliance on the part of the plaintiff, (5) that causes damage to the

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plaintiff.” Wynn v. Topco Assocs., LLC, No. 19-CV-11104, 2021 WL 168541, at *7
(S.D.N.Y. Jan. 19, 2021) (citing Schlatfer Nance & Co. v. Estate of Warhol, 119 F.3d
91, 98 (2d Cir. 1997)).
Here, Plaintiff fails to allege a material misrepresentation of fact or omission
since, as discussed above, a reasonable consumer would not conclude that the word
“shortbread” on the product’s label communicates that the product necessarily
contains butter. In addition, Plaintiff fails to allege the requisite fraudulent intent.
Plaintiff alleges that “the records Defendant is required to maintain, and/or the
information inconspicuously disclosed to consumers, provide it with actual and/or
constructive knowledge of the falsity and deception ....” Dkt. 1, | 129. She further
alleges that “Defendant’s fraudulent intent is evinced by its knowledge that the
Product was not consistent with its representations.” Id. | 131. However, the
“simple knowledge that a statement is false is not sufficient to establish fraudulent
intent... Davis v. Hain Celestial Grp., Inc., 297 F. Supp. 3d 327, 337 (E.D.N.Y.
2018). Nor can Plaintiff rely on her allegation that Defendant’s representations
about Lorna Doone cookies allowed it to sell “more of the Product and at higher
prices than it would have in the absence of this misconduct,” id. □ 52, because
“generalized motive to satisfy consumers’ desires [or] increase sales and profits” is
also “not sufficient to establish fraudulent intent.” Davis, 297 F. Supp. 3d at 337
(internal citations omitted).
In short, the Complaint is devoid of factual allegations suggesting that
Defendant acted with fraudulent intent by using the term “shortbread” on the

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labeling of Lorna Doone shortbread cookies. Plaintiffs fraud claim must be
dismissed for these reasons as well.
D. Unjust Enrichment
To state a claim for unjust enrichment, a plaintiff must allege that “(1) the
defendant was enriched, (2) at the expense of the plaintiff, and (3) it would be
inequitable to permit the defendant to retain that which is claimed by the plaintiff.”
Koenig v. Boulder Brands, Inc., 995 F. Supp. 2d 274, 290 (S.D.N.Y. 2014) (internal
citation omitted). An unjust enrichment claim “cannot survive ‘where it simply
duplicates, or replaces, a conventional contract or tort claim.” Id. (quoting Corsello
v. Verizon N_Y., Inc., 18 N.Y.3d 777, 790 (2012)).
Here, the allegations in the Complaint demonstrate that Plaintiffs unjust
enrichment claim duplicates her other claims. The entirety of Plaintiffs unjust
enrichment claim reads: “Defendant obtained benefits and monies because the
Product was not as represented and expected, to the detriment and impoverishment
of Plaintiff and class members, who seek restitution and disgorgement of
inequitably obtained profits.” Dkt. 1, § 132. The “claim is a mere repackaging of
{Plaintiffs] other claims based on the alleged misrepresentations on the Product's
packaging.” Campbell, 516 F. Supp. 3d at 394. The claim must be dismissed. See
Pierce v. L’Oreal USA, Inc., No. 17-CV-614, 2017 WL 4480887, at *5 (S.D.N.Y. Oct.
5, 2017) (dismissing unjust enrichment claim because “[a]ll of the claims in the
Complaint are based on the same alleged misrepresentation by Defendants”); Sitt v.
Nature’s Bounty, Inc., No. 15-CV-4199, 2016 WL 5372794, at *18 (E.D.N.Y. Sept. 26,

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2016) (“Because Plaintiffs unjust enrichment claims under New York law are based
on the same allegations as her claims of violations of N.Y. Gen. Bus. L. sections 349
and 350 and breach of express warranty under New York law, and because Plaintiff
has not shown how her unjust enrichment claim differs from her other New York
claims, Plaintiffs unjust enrichment claim under New York law is duplicative of her
other New York claims”). —

Plaintiff argues that her unjust enrichment claim should survive based on
alternative pleading as permitted by Fed. R. Civ. P. 8(d)(2). It is “certainly true, as
Plaintiff argues, that [s]he may plead unjust enrichment in the alternative to his
other claims.” Nelson, 246 F. Supp. 3d at 679. But it is “equally true” that where,
as here, even when “pleaded in the alternative, claims for unjust enrichment will
not survive a motion to dismiss where plaintiffs fail to explain how their unjust
enrichment claim is not merely duplicative of their other causes of action.” Id.
Because Plaintiffs unjust enrichment claim merely duplicates her other claims, the
claim is dismissed.
III. STANDING TO SEEK INJUNCTIVE RELIEF
Defendant moved, in the alternative, for dismissal of the claim for injunctive
relief, arguing that Plaintiff lacks standing to seek such relief. To satisfy the
requirement of standing under Article III of the Constitution, a plaintiff must
establish: (1) an injury in fact; (2) a causal connection between the injury and the
conduct complained of; and (3) that it is likely that the injury will be redressed by a
favorable decision. Nat’ Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 688 (2d Cir.

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2018) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). To
demonstrate an injury in fact when seeking injunctive relief, “a plaintiff cannot rely
on a past injury alone.” Buonasera v. Honest Co., Inc., 208 F. Supp. 3d 555, 564
(S.D.N.Y. 2016) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 108 (1988)).
Rather, she must establish “a ‘real or immediate threat’ of injury.” Nicosia v.
Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016) (internal citation omitted). The
Supreme Court “has repeatedly reiterated that threatened injury must be certainly
impending to constitute injury in fact, and that allegations of possible future injury
are not sufficient.” Daniel v. Tootsie Roll Indus., LLC, No. 17-CV-7541, 2018 WL
3650015, at *16 (S.D.N.Y. Aug. 1, 2018) (quoting Am. Civil Liberties Union v.
Clapper, 785 F.3d 787, 800 (2d Cir. 2015)). The Second Circuit has determined
that, absent an intent to “purchase the offending product in the future,” a plaintiff
in a deceptive business practice action lacks standing to seek injunctive relief.
Kommer v. Bayer Consumer Health, 710 F. App’x 48, 44 (2d Cir. 2018) (alterations
omitted).
Here, as in Kommer, Plaintiff has not shown that she is likely to suffer
further supposed injury because she fails to allege that she intends to purchase
Lorna Doone cookies in the future. In fact, the “allegations show [plaintiffs]
resistance to engaging in such a commercial transaction again.” Yee Ting Lau v.
Pret A Manger (USA) Lid., No. 17-CV-5775, 2018 WL 4682014, at *2 (S.D.N.Y. Sept.
28, 2018). Specifically, Plaintiff alleges that she “would not have purchased the
Product if she knew the representations and omissions were false and misleading or

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would have paid less for it.” Dkt. 1, | 82. She further emphasizes that she would
purchase the product again only “when she can do so with the assurance that the
Product's representations are consistent with its abilities, attributes, and/or
composition.” Id. | 85.
In short, Plaintiff concedes that she would not have purchased Lorna Doone
cookies had she known of the cookies’ true composition. And now that she is aware
that the cookies do not contain butter, she states that she does not intend to
purchase them again—unless Defendant changes either the product or the labeling.
Because Plaintiff admits that she is unlikely to purchase the product unless the
product is changed, she lacks standing to seek injunctive relief. See In re Amla
Litig., 320 F. Supp. 3d 578, 593 (S.D.N.Y. 2018) (plaintiffs lacked standing to seek
injunctive relief under N.Y. Gen. Bus. L. § 349 where they “adduce[d] no evidence
that they are likely to repurchase the product, and indeed allege[d] that they would
not have purchased the product in the first place had they known of its alleged
defects”).5

5 Because Plaintiff does not individually have standing to seek injunctive relief, she
also lacks standing to seek injunctive relief on behalf of any class. See Buonasera v.
Honest Co., Inc., 208 F. Supp. 3d 555, 564 (S.D.N.Y. 2016) (“the named plaintiffs
must have standing in order to seek injunctive relief on behalf of the class”) (citing
Dodge v. Cnty. of Orange, 103 Fed. Appx. 688, 690 (2d Cir. 2004); Cent. States Se. &
Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d
181, 199 (2d Cir. 2005)).

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CONCLUSION
For the reasons discussed above, Defendant’s motion to dismiss is
GRANTED.® The Clerk of Court is directed to close this case.

SO ORDERED.
Dated: January 5, 2023
Buffalo, New York

LV ZE eV
JOHN □□ SINATRA, □
UNITED STATES DISTRICT JUDGE

6 In her opposition brief, Plaintiff requested, in the alternative, that the Court grant
leave to file an Amended Complaint. Dkt. 18, at 20. That request is denied because
amendment here would be futile. See Lucente v. Int'l Bus. Machines Corp., 310 F.3d
243, 258 (2d Cir. 2002) (“Where it appears that granting leave to amend is unlikely
to be productive, however, it is not an abuse of discretion to deny leave to amend’)
(internal citation omitted).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10365743. Public record. Not legal advice.