Case 1:20-cv-00756-ARR-PK Document 23 Filed 08/10/20 Page 1 of 16 PageID #: 240
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`Christopher Silva, individually and on behalf of all others
`similarly situated,
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` Plaintiffs,
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` — against —
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`Hornell Brewing Co., Inc., Arizona Beverages USA LLC,
`Beverage Marketing USA, Inc., and Arizona Beverage Co.
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` Defendants.
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`20-cv-756 (ARR) (PL)
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`Not for print or electronic
`publication
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`Opinion & Order
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`ROSS, United States District Judge:
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`Silva brings this putative class action against Hornell Brewing Co., Inc., Arizona
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`Beverages USA LLC, Beverage Marketing USA, Inc., and Arizona Beverage Co. The case
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`concerns Arizona Fruit Snacks, a product manufactured and distributed by the defendants. Silva
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`asserts various statutory and common law claims against defendants, alleging that the Arizona
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`Fruit Snacks packaging falsely represents the product as “all natural,” when in fact, the product
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`contains synthetic ingredients and is not “all natural.” Defendants move to either stay or dismiss
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`the action. As set forth below, defendant’s motion to stay is denied, and defendants’ motion to
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`dismiss is granted in part and denied in part.
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`BACKGROUND
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`Defendants Hornell Brewing Co., Inc., Arizona Beverages USA LLC, Beverage Marketing
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`USA, Inc., and Arizona Beverage Co. manufacture, sell, and distribute Arizona Fruit Snacks (“the
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`Product”). First Am. Compl. (“FAC”) ¶¶ 1–2, ECF No. 16. The Product packaging describes the
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`Product as “All Natural.” The front of the packaging is pictured below:
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`The Product contains gelatin, citric acid, ascorbic acid, dextrose, glucose syrup and modified food
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`starch (corn). Id. ¶ 7. Plaintiff alleges that these ingredients are synthetic, which in plaintiff’s view
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`means the Product is not, in fact, all natural. Id. Thus, plaintiff alleges the “all natural” statement
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`on the packaging is a misrepresentation. Id.
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`Plaintiff Christopher Silva is a resident of Brooklyn, New York. Id. ¶ 31. He purchased the
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`Product, with the above-pictured “all natural” labeling, in or about October 2019. Id. Silva states
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`that if the Product were not labeled “All Natural,” he would not have been willing to pay the same
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`amount, and consequently, would not have purchased the Product at all. Id. ¶ 32. Silva states that
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`defendants charged a premium price for the Product because it was represented as “All Natural”
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`and that the Product cost more than competitive products not bearing an “All Natural” label. Id. ¶
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`25–26. Silva also alleges that if the Product were actually “All Natural” (not containing synthetic
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`ingredients), he would purchase the Product in the immediate future. Id. ¶ 31.
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`On October 5, 2019, Silva sent a letter and draft complaint to the defendant. On February
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`11, 2020, Silva filed this action, on behalf of himself, a proposed class consisting of all consumers
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`who purchased the Product anywhere in the United States, and a proposed subclass consisting of
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`all consumers who purchased the project in the State of New York. Id. ¶¶ 37–39; Complaint ¶¶
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`37–39, ECF No. 1. Defendants moved to stay this action under the primary jurisdiction doctrine,
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`or in the alternative, defendants move to dismiss for failure to state a claim upon which relief can
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`be granted.
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`I.
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`Motion to Stay
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`DISCUSSION
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`Defendant moves to “stay this action under the Primary Jurisdiction doctrine because the FDA
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`is currently evaluating regulations to guide the use of the term ‘Natural’ on food products.” Defs.’
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`Mem. of Law in Supp. of Mot. to Stay or Dismiss (“Def.’s Br.”) 1, ECF No. 20-8. Plaintiff opposes,
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`arguing that a stay is not appropriate because there is no indication that such FDA guidance is
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`forthcoming, and that the guidance would not actually affect plaintiffs’ claims. Pl.’s Mem. of Law
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`in Opp. to Defs.’ Mot. to Stay or Dismiss (“Pl.’s Br.”) 1, ECF No. 21. I agree with plaintiff and
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`decline to stay this action.
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`“The primary jurisdiction doctrine is concerned with ‘promoting proper relationships between
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`the courts and administrative agencies charged with particular regulatory duties.’” Ellis v. Tribune
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`Television Co., 443 F.3d 71, 81 (2d Cir. 2006) (quoting United States v. W. Pac. R.R. Co., 352
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`U.S. 59, 63 (1956)). The question of primary jurisdiction arises in “cases involving technical and
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`intricate questions of fact and policy that Congress has assigned to a specific agency.” Nat’l
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`Commc’ns Ass’n, Inc. v. Am. Tel. & Tel. Co., 46 F.3d 220, 223 (2d Cir. 1995) (citing Goya Foods,
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`Inc. v. Tropicana Prod., Inc., 846 F.2d 848, 851 (2d Cir. 1988)). If the doctrine applies, the court
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`will forbear ruling on an issue and instead refer it to the appropriate agency. See id. at 222–23.
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`Courts consider the following four factors in deciding whether to apply the primary jurisdiction
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`doctrine:
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`(1) whether the question at issue is within the conventional experience of judges or
`whether it involves technical or policy considerations within the agency’s particular
`field of expertise;
`(2) whether the question at issue is particularly within the agencys discretion;
`(3) whether there exists a substantial danger of inconsistent rulings; and
`(4) whether a prior application to the agency has been made.
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`Ellis, 443 F.3d at 82–83 (citing Nat’l Commc’ns Ass’n, Inc., 46 F.3d at 222). “The court must also
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`balance the advantages of applying the doctrine against the potential costs resulting from
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`complications and delay in the administrative proceedings.” Nat’l Commc’ns Ass’n, 46 F.3d at 223
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`(citing Ricci v. Chicago Mercantile Exch., 409 U.S. 289, 321 (1973)). In this case, the four Ellis
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`factors weigh against application of the primary jurisdiction doctrine.
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`First, while defining the term “all natural” does involve technical and policy
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`considerations, this case does not require a technical definition of “all natural.” Instead, this case
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`requires a determination of whether labeling the Product as “all natural” is misleading to a
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`reasonable consumer. That type of legal question is within the conventional experience of the court
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`and does not require FDA guidance. See, e.g., Petrosino v. Stearn’s Prods., Inc., No. 16-CV-7735
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`(NSR), 2018 WL 1614349, at *10at *30 (S.D.N.Y. Mar. 30, 2018); Ault v. J.M. Smucker Co., No.
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`13 CIV. 3409 (PAC), 2014 WL 1998235, at *5 (S.D.N.Y. May 15, 2014); In re Frito-Lay N. Am.,
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`Inc. All Nat. Litig., No. 12-MD-2413 (RRM) (RLM), 2013 WL 4647512, at *8 (E.D.N.Y. Aug.
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`29, 2013); Ackerman v. Coca–Cola Co., No. 09–CV–0395 (JG) (RML), 2010 WL 2925955, at *14
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`(E.D.N.Y. July 21, 2010).
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`As for the second factor, the parties agree that Congress gave the FDA authority over food
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`labeling, 21 U.S.C. § 341, and that the proper use of the term “natural” on packaging is within the
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`FDA’s discretion. See Pl.’s Br. 3. But this is only one factor, and it is not decisive.
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`The third factor is primarily about the danger that the agency may issue guidance that
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`conflicts with the court’s ruling. Elkind v. Revlon Consumer Prod Corp., No. 14–CV–
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`2484(JS)(AKT), 2015 WL 2344134, *10 (E.D.N.Y. May 14, 2015); see also Ellis, 443 F.3d at 88.
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`That risk is not present here because, as noted above, this case does not involve determining a
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`scientific definition of “natural.” Any guidance the FDA ultimately issues about the term “natural”
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`will not be inconsistent with the outcome the court reaches in this case because the FDA is not
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`tasked with applying a reasonable consumer standard.
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`As for the fourth factor, there has been a prior application to the agency, but I have no
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`confidence that the FDA will be addressing this issue anytime soon. In November 2015, the agency
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`opened a docket “to receive information and comments on the use of the term ‘natural’ in the
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`labeling of human food products.” See Wolfson Decl., Defs.’ Ex. C, ECF No. 20-4, Use of the
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`Term “Natural” in the Labeling of Human Food Products: Request for Information and Comments,
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`80 Fed. Reg. 69905-01 (Nov. 12, 2015). It has been nearly five years since that announcement,
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`and the FDA has issued no guidance on use of the term “natural.” FDA officials have made three
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`public comments about the topic in those five years, none of which provide any concrete timeline
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`for issuing guidance. See Wolfson Decl., Defs.’ Ex. D, ECF No. 20-5, Heather Haddon, FDA
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`Commissioner Wants Closer Look at Health Statements on Packaging, Wall Street Journal (Oct.
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`10,
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`2017),
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`https://www.wsj.com/articles/fda-commissioner-wants-closer-look-at-health-
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`claimson- packaging-1507673335 (stating that the “agency is . . . looking at how to define ‘healthy’
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`and ‘natural’ more uniformly[,]” noting that “[t]he claims have been the subject of lawsuits[.]”);
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`Wolfson Decl., Defs.’ Ex. E, ECF No. 20-6, Ltr. FDA Commissioner Scott Gottlieb to Rep. David
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`Valadao (December 19, 2018) (stating that the “FDA is actively working on this issue[]”); Wolfson
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`Decl., Defs.’ Ex. F, ECF No. 20-7, United States Food and Drug Administration, Remarks by Dr.
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`Susan Magne at the Public Meeting on Horizontal Approaches to Food Standards of Identity
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`Modernization (Sept. 27, 2019), available at https://www.fda.gov/news (“[W]e are close to
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`proposing a new definition for the ‘Healthy’ claim on food labels and have been working diligently
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`on the claim ‘Natural.’”).
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`Defendants make much of the recent comment by Dr. Magne that the FDA is “working
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`diligently on the claim ‘Natural.’” Def.’s Br. 7–8. Indeed, some courts appear to have decided to
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`stay similar actions based on this statement. See id. (citing cases). But Dr. Magne’s comment was
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`now almost a year ago, and there continues to be no agency action. Given the experience of the
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`past five years, there is no reason to think the agency is going to be addressing this issue in the
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`near future.
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`As three of the four Ellis factors weigh against applying the primary jurisdiction doctrine,
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`I decline to stay the case and proceed to consider the defendants’ motion to dismiss.
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`II. Motion to Dismiss
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`Under Federal Rule of Civil Procedure 12(b)(6), a party may move for dismissal for
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`“failure to state a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). In deciding
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`a Rule 12(b)(6) motion to dismiss, the court must “accept[] all factual allegations in the complaint
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`as true” and “draw[] all reasonable inferences in the plaintiff[s’] favor.” Lundy v. Catholic Health
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`Sys. of Long Island Inc., 711 F.3d 106, 113 (2d Cir. 2013) (quoting Holmes v. Grubman, 568 F.3d
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`329, 335 (2d Cir. 2009)). Nonetheless, the complaint’s “[f]actual allegations must be enough to
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`raise a right to relief above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
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`(2007). In particular, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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`conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
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`Twombly, 550 U.S. at 555). Further, “[o]nly a complaint that states a plausible claim for relief
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`survives a motion to dismiss.” LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 476 (2d
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`Cir. 2009) (quoting Iqbal, 556 U.S. at 679). To determine whether a claim is plausible, the court
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`must “draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
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`Violations of the New York General Business Law
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`A.
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`Under § 349 of the New York General Business Law (“NYGBL”), “[d]eceptive acts or
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`practices in the conduct of any business, trade or commerce or in the furnishing of any service in
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`this state are . . . unlawful.” NYGBL § 349(a). Under § 350, “[f]alse advertising in the conduct of
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`any business, trade or commerce or in the furnishing of any service in this state is . . . unlawful.”
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`Id. ¶ 350. To state a claim under § 349 or § 350, “a plaintiff must allege that a defendant has
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`engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff
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`suffered injury as a result of the allegedly deceptive act or practice.” Orlander v. Staples, Inc., 802
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`F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 967 N.E.2d 675, 675
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`(N.Y. 2012)). In this case, defendants argue that plaintiff has not stated a claim with respect to the
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`first and third elements.
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`Defendants argue that the first element is not present because the complaint does not state
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`“particularized factual allegations that Silva saw and relied upon alleged misstatements in a
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`particular advertisement[.]” Def.’s Br. 9. This argument is entirely without merit. The complaint
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`includes an image of the packaging, and alleges that the phrase “all natural,” which appears on the
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`packaging, is a misstatement because the Product contains synthetic ingredients. FAC ¶ 6. The
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`complaint further states that Silva purchased the Product in October 2019, and that he did so in
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`reliance on the statement that the Product was “all natural,” which in his view, means a lack of
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`synthetic ingredients. Id. ¶¶ 31–32. Product packaging constitutes an consumer-oriented conduct
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`for purposes of the GBL. See Petrosino v. Stearn's Prod., Inc., No. 16-CV-7735 (NSR), 2018 WL
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`1614349, at *7 (S.D.N.Y. Mar. 30, 2018) (“Plaintiff properly pleaded that Defendant committed a
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`deceptive act by labeling their products ‘natural’ despite having synthetic ingredients.”) There is
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`no defect as to the first element of the NY GBL claims.
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`The complaint is also not defective as to the third element of a NYGBL claim. This element
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`requires that the plaintiff allege an injury in the form of some type of pecuniary or actual harm
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`caused by the misleading advertisement. See Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 56
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`(1999). Silva has alleged such an injury by stating that he paid more for the Product than he would
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`have if not for the “all natural” representation. FAC ¶ 57; see Goldemberg v. Johnson & Johnson
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`Consumer Cos., Inc., 8 F. Supp. 3d 467, 480–81 (S.D.N.Y. 2014) (collecting cases stating that a
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`price premium is a sufficient injury for a NYGBL claim). Defendants argue that plaintiff has failed
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`to state a claim because he does not allege enough specific facts, such as the price Silva paid for
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`the Product or the prices of competitive products. See Def.’s Br. 10–11. Such specific allegations
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`are not required. In re Frito-Lay N. Am., Inc., 2013 WL 4647512, at *24(“[Defendant] also points
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`to no case holding that plaintiffs must allege at what price they purchased the products, and the
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`Court finds no reason to require such pleading[.]”). Defendants also argue that plaintiff has
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`changed his theory of injury to the entire price he paid for the Product, see Def.’s Br. 10, but the
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`complaint clearly states that the injury is the price premium, see FAC ¶ 57.
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`B.
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`Violation of Other State Consumer Protection Statutes
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`In addition to the NYGBL claims, plaintiff asserts statutory claims under the consumer
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`protection laws of forty states and the District of Columbia. See FAC ¶¶ 73–91. Plaintiff does not
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`specify the elements of a claim under each statute, nor does he specify how the alleged facts satisfy
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`the criteria of each statute. Def.’s Br. 11–12. But plaintiff is not required to do so. Plaintiff is
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`required to plead the facts, not the details of the law. Here, Silva has made plausible claims that
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`numerous state consumer protection laws have been violated.
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`As the court explained in Allen v. ConAgra Foods, Inc., No. 13-CV-01279-JST, 2013 WL
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`4737421, at *11 (N.D. Cal. Sept. 3, 2013):
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`Plaintiff is required to plead “enough facts to state a claim to relief that is plausible on its
`face.” Twombly, 550 U.S. at 570 (emphasis added). “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.” Iqbal, 556 U.S. at 678. Plaintiff
`has satisfied that standard here. If ConAgra believed that Plaintiff failed to state a claim
`under one or more state consumer protection statutes, they were free to make that argument
`in their motion; but the fact that Plaintiff asserts claims under fifty consumer protection
`statutes rather than just one is not a basis, in and of itself, for dismissal.
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`With the exception of two statutes discussed below, defendants have advanced no argument about
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`why plaintiff’s factual allegations are not sufficient to state a claim under the various state statutes.
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`“[T]o the extent this very limited briefing invites the Court to sua sponte ‘comb through all of
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`Plaintiffs’ consumer protection claims and determine whether the elements have been adequately
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`pleaded, the Court respectfully declines the invitation.’” Sergeants Benevolent Ass'n Health &
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`Welfare Fund v. Actavis, PLC, No. 15 CIV. 6549 (CM), 2018 WL 7197233, at *34–35 (S.D.N.Y.
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`Dec. 26, 2018) (quoting In re: Domestic Drywall Antitrust Litig. Civil Action, No. 13-2437, 2016
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`WL 3769680, at *11 (E.D. Pa. July 13, 2016)). Given that plaintiff has properly pled a violation
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`of New York’s consumer protection law, it is certainly plausible that defendants’ alleged conduct
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`violates the terms of the consumer protection laws of other states.
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`Defendants do make legal arguments as to two of the statutes listed in the complaint. In
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`their moving brief, defendants state, “For one example, Silva alleges that Defendants violated
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`Wisconsin’s Consumer Protection Act (“WCPA”), Wis. Stat. § 402.313.1 However, the WCPA is
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`primarily intended to regulate consumer credit transactions, see Wis. Stat. § 423.301, and
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`obviously has absolutely no application here.” Def.’s Br. 12. Plaintiff does not address this
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`argument in his responsive brief.
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`Wis. Stat. § 423.301, titled “False Misleading, or Deceptive Advertising” states:
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`No merchant shall advertise, print, display, publish, distribute or broadcast or cause
`to be advertised, printed, displayed, published, distributed or broadcast, in any
`manner any statement or representation with regard to the extension of consumer
`credit including the rates, terms or conditions for the extension of such credit, which
`is false, misleading, or deceptive, or which omits to state material information with
`respect to the extension of credit that is necessary to make the statements therein
`not false, misleading or deceptive.
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`I agree with defendants that this section of the statute is not applicable to the facts alleged in the
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`complaint, and I see no other provision of the WCPA that is relevant to this case. Thus, plaintiff’s
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`claims under the WCPA are dismissed.
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`In their reply, defendants argue that plaintiff has also failed to state a claim under the Ohio
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`Deceptive Trade Practices Act (“ODTPA”) because “a majority of Ohio courts have held [the Act]
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`does not provide for a private right of action[.]” Def.’s Reply Mem. in Supp. of Mot. to Stay or
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`Dismiss (“Def.’s Reply”), ECF No. 22. In Borden v. Antonelli College, , the court analyzes the
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`statutory text of the ODTPA and relevant state court decisions to hold that the Act does not provide
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`for a private right of action. 304 F. Supp. 3d 678, 685 (S.D. Ohio 2018). As noted by the Borden
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`court, the ODTPA is analogous to Section 43(a) of the Lanham Act, which courts have consistently
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`1 I assume defendant actually meant to cite the statute the plaintiff relies on in this cause of action, which is Wis.
`Stat. §421.101, not §402.313. See FAC ¶ 75(nn).
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`held does not confer standing to individual consumers. Id.; see also In re Porsche Cars North
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`America, Inc., 880 F. Supp. 2d 801, 873 (S.D. Ohio 2012). While movants normally are prohibited
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`from raising new arguments in a reply brief, I agree with the defendants that the law makes clear
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`that it is impossible for Silva to establish standing to bring a claim under the ODTPA. Thus, the
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`ODTPA claim is dismissed.
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`Plaintiff’s remaining thirty-eight state consumer protection law claims are not dismissed at
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`this time.
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`C.
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`Breach of Express Warranty
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`To state a claim for breach of express warranty under New York law, a plaintiff must
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`allege: “(1) the existence of a material statement amounting to a warranty, (2) the buyer’s reliance
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`on this warranty as a basis for the contract with the immediate seller, (3) breach of the warranty,
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`and (4) injury to the buyer caused by the breach.” Goldemberg v. Johnson & Johnson Consumer
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`Cos., Inc., 8 F. Supp. 3d 467, 482 (S.D.N.Y. 2014) (citing Avola v. Louisiana-Pacific Corp., 991
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`F. Supp. 2d 381, 391 (E.D.N.Y. 2013)). “The buyer must within a reasonable time after he
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`discovers or should have discovered any breach notify the seller of breach or be barred from any
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`remedy.” In re Frito-Lay, 2013 WL 4647512, at *27 (quoting N.Y. U.C.C. § 2-607(3)(a)).
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`Defendants challenge plaintiff’s breach of express warranty claim solely on the grounds
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`that plaintiff did not give the defendants reasonable notice of the alleged breach. See Def.’s Br.
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`13–14. The complaint states that Silva purchased the Product in October 2019, and mailed a draft
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`complaint to defendants on October 25, 2020. FAC ¶¶ 31, 88. This constitutes a delay of, at most,
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`approximately three weeks. Defendants contend that this brief delay constitutes an unreasonable
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`delay as a matter of law. Def.’s Br. 13–14. Defendants also argue that Silva failed to allege when
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`he discovered the defect, or whether October 2019 was the first time he purchased the Product. Id.
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`at 14. The cases defendants cite do not support dismissing a breach of express warranty claim for
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`either of those reasons. Those cases involve complaints that did not allege when, if at all, the
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`plaintiffs notified the defendants of the breach. See In re Frito-Lay,2013 WL 4647512, at *27. ;
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`Quinn v. Walgreen Co., 958 F. Supp. 2d 533, 544 (S.D.N.Y. 2013).
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`Silva has alleged sufficient facts to support his claim that he notified defendants of the
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`breach, and the length of any delay is not unreasonable as a matter of law. Thus, I deny defendants’
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`motion to dismiss plaintiff’s third cause of action.
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`D.
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`Breach of the Magnuson-Moss Warranty Act
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`The plaintiffs purport to assert a claim under the Magnuson-Moss Warranty Act, 15 U.S.C.
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`§§ 2301–2312 (“MMWA”). FAC ¶¶ 92–101. “The MMWA grants relief to a consumer ‘who is
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`damaged by the failure of a . . . warrantor . . . to comply with any obligation . . . under a written
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`warranty.” Wilbur v. Toyota Motor Sales, U.S.A., Inc., 86 F.3d 23, 26 (2d Cir. 1996) (quoting 15
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`U.S.C. § 2310(d)(1) (1994)). The statute defines a “written warranty” as
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`any written affirmation of fact or written promise made in
`connection with the sale of a consumer product by a supplier to a
`buyer which relates to the nature of the material or workmanship
`and affirms or promises that such material or workmanship is defect
`free or will meet a specified level of performance over a specified
`period of time[.]
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` §
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` 2301(6)(A). The MMWA does not apply to this case, as the plaintiffs have not alleged a written
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`warranty as defined in the statute. See In re Frito-Lay, 2013 WL 4647512, at *17 (citing Wilson v.
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`Frito–Lay N. Am., Inc., No. 12–1586 SC, 2013 WL 1320468, at *15 (N.D. Cal. Apr. 1, 2013))
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`(concluding that representation that chips were “all natural” was not written warranty under
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`MMWA because it did not warrant that product was free from defect or promise specified level of
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`performance, but rather was description of product).
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`As plaintiff has failed to state a claim for breach of warranty under the MMWA, the fifth
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`cause of action is dismissed.
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`E.
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`Unjust Enrichment
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` “Under New York law, a plaintiff may prevail on a claim for unjust enrichment by
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`demonstrating ‘(1) that the defendant benefitted; (2) at the plaintiff’s expense; and (3) that equity
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`and good conscience require restitution.’” Nordwind v. Rowland, 584 F.3d 420, 434 (2d Cir. 2009)
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`(quoting Beth Isr. Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448 F.3d 573, 586
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`(2d Cir. 2006)). The “unjust enrichment claim ‘is available only in unusual situations when, though
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`the defendant has not breached a contract nor committed a recognized tort, circumstances create
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`an equitable obligation running from the defendant to the plaintiff.’” Weisblum, 88 F. Supp. 3d at
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`296 (quoting Corsello v. Verizon N.Y., Inc., 967 N.E.2d 1177, 1185 (N.Y. 2012)). The unjust
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`enrichment cause of action “is not a catchall . . . to be used when others fail.” Corsello, 967 N.E.2d
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`at 1185. It “is not available where it simply duplicates, or replaces, a conventional contract or tort
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`claim.” Id. Typically, it is available when “the defendant, though guilty of no wrongdoing, has
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`received money to which he or she is not entitled.” Id. District courts in this circuit have dismissed
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`unjust enrichment claims when they have relied on the same facts as the plaintiffs’ other asserted
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`causes of action. See Price v. L’Oréal USA, Inc., No. 17 Civ. 0614(LGS), 2017 WL 4480887, at
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`*5 (S.D.N.Y. Oct. 5, 2017) (“All of the claims in the Complaint are based on the same alleged
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`misrepresentation by Defendants . . . . Accordingly, Plaintiffs’ New York unjust enrichment claim
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`is dismissed as duplicative.”); Bowring v. Sapporo U.S.A., Inc., 234 F. Supp. 3d 386, 392
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`(E.D.N.Y. 2017) (“Plaintiff’s unjust enrichment claim relies on the same facts as her other causes
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`of action in tort. Because this claim is duplicative, it is dismissed.”); Buonasera v. Honest Co.,
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`Inc., 208 F. Supp. 3d 555, 568 (S.D.N.Y. 2016) (“Buonasera is alleging tort causes of action and
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`is relying on the same set of facts for these causes of action as he is for the unjust enrichment
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`claim. Because Buonasera fails to show how the unjust enrichment claim is not duplicative, it
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`should be dismissed.”). In particular, I recently dismissed an unjust enrichment claim when it
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`duplicated other claims, including statutory claims under NYGBL §§ 349 and 350. Sarr v. BEF
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`Foods, Inc., No. 18-CV-6409 ARR RLM, 2020 WL 729883, at *10 (E.D.N.Y. Feb. 13, 2020).
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`In asserting the unjust enrichment cause of action here, the plaintiff alleges that the
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`defendants’ “unlawful conduct as described in this Complaint allowed Defendant[s] to knowingly
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`realize substantial revenues from selling their Product at the expense of, and to the detriment or
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`impoverishment of, Plaintiff and Class Members, and to Defendant’s benefit and enrichment.”
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`FAC ¶ 105. This claim merely duplicates the plaintiffs’ other claims, which arise out identical
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`facts: the defendants’ alleged misrepresentation on the Product packaging. Thus, the unjust
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`enrichment claim is dismissed as duplicative.
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`F.
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`Standing for Injunctive Relief
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`Defendant argues that I should dismiss plaintiff’s claims for injunctive relief for lack of
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`standing. See Def.’s Br. 17–18. To establish Article III standing to seek injunctive relief, a plaintiff
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`must “allege a risk of future injury.” Sitt v. Nature’s Bounty, Inc., No. 15-CV-4199 (MKB), 2016
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`WL 5372794, at *7 (E.D.N.Y. Sept. 26, 2016). The complaint states that “[i]f the Product was
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`actually ‘All Natural’, as represented on the Product’s label, Plaintiff would purchase the Product
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`in the immediate future.” FAC ¶ 31. This allegation is not sufficient to demonstrate that Silva is
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`likely to be injured by the defendants’ conduct in the future.
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`A plaintiff does not necessarily have standing to seek injunctive relief, even when it is clear
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`that he has standing to seek damages. See City of Los Angeles v. Lyons, 461 U.S. 95, 105–06
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`(1983); Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016).“‘[P]ast exposure to illegal
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`conduct does not in itself show a present case or controversy regarding injunctive relief . . . if
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`Case 1:20-cv-00756-ARR-PK Document 23 Filed 08/10/20 Page 15 of 16 PageID #: 254
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`unaccompanied by any continuing, present adverse effects.’” Lyons, 461 U.S. at 95–96 (quoting
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`O’Shea v. Littleton, 414 U.S. 488, 496–97 (1974)) (alteration in original). Because a plaintiff in a
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`false advertisement case has necessarily become aware of the alleged misrepresentations, “there is
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`no danger that they will again be deceived by them.” Elkind v. Revlon Consumer Prods. Corp.,
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`No. 14–CV–2484(JS)(AKT), 2015 WL 2344134, at *3 (E.D.N.Y. May 14, 2015); accord, e.g.,
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`Tomasino v. Estee Lauder Cos, Inc.., 44 F. Supp. 3d 251, 256 (E.D.N.Y. 2014). Although some
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`district courts have allowed claims for injunctive relief to proceed in similar circumstances, see,
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`e.g., Belfiore v. Procter & Gamble Co., 94 F. Supp. 3d 440, 445 (E.D.N.Y. 2015); Ackerman v.
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`Coca-Cola Co., No. 09-cv-395 (DLI) (RML), 2013 WL 7044866, at *15 n.23 (E.D.N.Y. July 18,
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`2013) (R. & R.), these cases are inconsistent with Article III and with Supreme Court and Second
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`Circuit case law. Nicosia, 834 F.3d at 239; Buonasera v. Honest Co., 208 F. Supp. 3d at 564–65
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`& n.3 (“[T]he Court declines to follow the reasoning in Ackerman as Second Circuit precedent
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`dictates otherwise.”).
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`To the extent that plaintiff was deceived by the appearance of the phrase “All Natural” on
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`the Product label, the existence of this lawsuit shows that he is now aware that the Product contains
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`synthetic ingredients. Thus, he will not be harmed again in the same way, and he lacks standing to
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`seek an injunction.
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`CONCLUSION
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`For the reasons set forth above, defendants’ motion to stay is denied, and the motion to
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`dismiss is granted in part and denied in part. The motion to dismiss is granted as to the fifth cause
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`of action, violation of the Magnuson-Moss Warranty Act, the sixth cause of action, unjust
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`enrichment, and the claims under the Wisconsin Consumer Protection Act and the Ohio Deceptive
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`Trade Practices Act, which are part of the third cause of action. The motion is also granted as to
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`any claims for injunctive relief. The motion is denied as to the first and second causes of action,
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`violations of the New York General Business Law, the third cause of action, violations of state
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`consumer protection statutes, other than the two statutes identified above, and the fourth cause of
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`action for breach of express warranty.
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`SO ORDERED.
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`________/s/__________________
`Allyne R. Ross
`United States District Judge
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`Dated:
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`August 10, 2020
`Brooklyn, New York
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`16
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