Case 7:21-cv-00270-KMK Document 32 Filed 03/21/22 Page 1 of 33
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`LORI MARIE TURK and LUANN
`RUTHERFORD, individually and on behalf
`of all others similarly situated,
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`RUBBERMAID INCORPORATED,
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`v.
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`No. 21-CV-270 (KMK)
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`OPINION & ORDER
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`Plaintiffs,
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`Defendant.
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`James Chung, Esq.
`Law Office of James Chung
`Bayside, NY
`Counsel for Plaintiffs
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`Spencer Sheehan, Esq.
`Sheehan & Associates, P.C.
`Great Neck, NY
`Counsel for Plaintiffs
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`Jeffrey Skinner, Esq.
`Brett Clements, Esq.
`ArentFox Schiff LLP
`Washington, DC
`Counsel for Defendant
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`KENNETH M. KARAS, United States District Judge:
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`Lori Marie Turk (“Turk”) and Luann Rutherford (“Rutherford”; together, “Plaintiffs”)
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`bring this putative class action against Rubbermaid Incorporated (“Defendant”), alleging that the
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`labeling on Defendant’s 102-Quart Marine Chest Cooler and 45-Quart DuraChill Cooler is
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`deceptive and misleading. Plaintiffs assert claims for damages against Defendant for
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`(1) violations of §§ 349 and 350 of the New York General Business Law (“GBL”), N.Y. G.B.L.
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`§§ 349, 350; (2) violation of the Magnuson Moss Warranty Act (“MMWA”), 15 U.S.C. §§ 201,
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`Case 7:21-cv-00270-KMK Document 32 Filed 03/21/22 Page 2 of 33
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`et seq.; (3) common law breach of express warranty; (4) common law breach of the implied
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`warranty of merchantability; (5) common law negligent misrepresentation; (6) common law
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`fraud; and (7) unjust enrichment. (See generally First Am. Compl. (“FAC”) (Dkt. No. 18).)
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`Plaintiffs also seek injunctive relief to correct the alleged misrepresentations. (See id. at 11.)
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`Before the Court is Defendant’s Motion To Dismiss the First Amended Complaint (the
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`“Motion”). (See Not. of Mot. (Dkt. No. 25).) For the foregoing reasons, the Motion is granted.
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`A. Factual Background
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`I. Background
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`The following facts are drawn from the First Amended Complaint (“FAC”) and assumed
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`to be true for the purposes of resolving the instant Motion. See Div. 1181 Amalgamated Transit
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`Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep’t of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per
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`curiam).
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`Defendant is a company that markets and manufactures household and outdoor products,
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`including coolers and thermoses. (See FAC ¶¶ 1, 40.) Defendant’s coolers include portable ice
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`coolers, which purport to retain ice for defined period of times. (See id. ¶ 1.) This Action
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`involves two such portable ice coolers: the 102-Quart Marine Chest Cooler (“Marine Cooler”)
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`and 45-Quart DuraChill Cooler (“DuraChill Cooler”; together, the “Products”). (See id. ¶ 2.)
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`Defendant represents on the labels of both Products that the Products “keep” or retain ice
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`for five days, which means that ice will remain intact in the Products for five days. (See id. ¶¶ 2,
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`5.) Specifically, Plaintiffs allege that Defendant represents that the Marine Cooler “Keeps Ice –
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`Up to 5 Days at 90° F,” and that this representation is included “on the product, via sticker” and
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`is communicated “through Defendant’s third-party partners, such as Lowes, Home Depot,
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`Amazon[,] and Walmart.” (Id. ¶¶ 8–9.) The Marine Cooler’s label includes no other qualifier as
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`to its ice retention. (See id. ¶ 12.) Plaintiffs allege that Defendant represents that the DuraChill
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`Case 7:21-cv-00270-KMK Document 32 Filed 03/21/22 Page 3 of 33
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`Cooler will retain ice for “5 days,” and that this representation is “made online and through
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`labeling affixed to the” DuraChill Cooler. (Id. ¶ 10.) The DuraChill Cooler’s label also includes
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`“a small asterisk” which “leads to a statement in fine print and faintly visible which qualifies the
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`‘5 day’ claim by indicating this was at 90 degrees Fahrenheit and ‘under test conditions.’” ( Id.
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`¶ 13.) Separately, Defendant provides a one-year limited warranty, which warrants that the
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`Products are “free from defects in material and workmanship for a period of one year from the
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`date of the original purchase.” (Id. ¶ 11.)
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`Plaintiffs allege that consumers understand ice retention to refer to “how long their
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`coolers can retain enough ice to effectively keep its contents at temperatures where the food,
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`beverages[,] and/or caught fish, will not spoil,” and interpret Defendant’s representations that the
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`Products will retain ice for up to five days to mean that the Products will maintain ice and keep
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`food at a safe temperature for five days. (See id. ¶¶ 7, 26.) However, Plaintiffs allege that the
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`Products do not retain ice for five days under real world conditions (i.e., opening and closing the
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`Products’ tops), and do not maintain a food-safe temperature of 40° Fahrenheit beyond two days.
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`(See id. ¶¶ 14, 16–19, 25.) Plaintiffs allege that one reason the DuraChill Cooler fails to perform
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`as advertised is because its hinges are not durable and cannot form the airtight seal required to
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`maintain its contents at the required temperatures; 13 of the 246 reviews for the DuraChill
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`Cooler on Amazon.com mention issues with the DuraChill Cooler’s hinges. (See id. ¶¶ 21–24.)
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`Turk purchased the Marine Cooler “for no less than $109.99, at Walmart, 1201 NY -300,
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`Newburgh, NY 12550, between 2019 and 2020.” (Id. ¶ 41.) In purchasing the Marine Cooler,
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`Turk alleges that she “relied on representations on the Product and on websites selling the
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`Product, including Walmart, Amazon[,] and/or Home Depot, which all touted the [Marine
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`Cooler’s] ability to retain ice for five days.” (Id. ¶ 42.) Rutherford purchased the DuraChill
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`3
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`Cooler “for no less than $45.00, at CVS, 778A Manor Rd[.], Staten Island, NY 10314, between
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`2019 and 2020.” (Id. ¶ 43.) In purchasing the DuraChill Cooler, Rutherford alleges that she
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`“relied on representations on the DuraChill Cooler and on websites selling the DuraChill Cooler,
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`including Walmart, Amazon[,] and/or Home Depot, which all touted the [DuraChill Cooler’s]
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`ability to retain ice for five days.” (Id. ¶ 44.) Plaintiffs allege that they “used the [P]roducts for
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`typical events, such as birthday parties, outdoor gatherings, picnics[,] and/or barbecues,” and the
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`Products “failed to retain ice for five days and did not even keep food safe – below 40 degrees
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`Fahrenheit – beyond two days.” (Id. ¶¶ 45–46.) Rutherford also alleges that she “experienced
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`issues with the hinges of the DuraChill Cooler[,] which compromised and reduced its ability to
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`keep items cold.” (Id. ¶ 47.)
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`B. Procedural History
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`Plaintiffs filed their initial Complaint on January 14, 2021. (See Dkt. No. 2.) On
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`May 24, 2021, Defendant filed a pre-motion letter in anticipation of filing a motion to dismiss.
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`(See Dkt. No. 11.) Plaintiffs filed the FAC on June 16, 2021. (See FAC.) On June 28, 2021,
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`Defendant again filed a pre-motion letter in anticipation of filing a motion to dismiss. (See Dkt.
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`No. 19.) Following Plaintiffs’ response to Defendant’s pre-motion letter, (see Dkt. No. 21), the
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`Court held a pre-motion conference on August 2, 2021, (see Dkt. (minute entry for Aug. 2,
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`2021)). Pursuant to the briefing schedule adopted at this conference, Defendant filed the instant
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`Motion on August 20, 2021. (See Not. of Mot.; Def.’s Mem. of Law in Supp. of Mot. To
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`Dismiss (“Def.’s Mem.”) (Dkt. No. 26).) Plaintiffs filed their Opposition on September 20,
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`2021, (see Pls.’ Mem. of Law in Opp’n to Mot. To Dismiss (“Pls.’ Mem.”) (Dkt. No. 27)), and
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`Defendant filed its Reply on October 4, 2021, (see Def.’s Reply in Supp. of Mot. To Dismiss
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`(“Def.’s Reply Mem.”) (Dkt. No. 28)). On January 19, 2022, Defendant notified the Court of
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`persuasive authority from another judge in this district. (See Dkt. No. 29.)
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`A. Standard of Review
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`II. Discussion
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`Defendant moves to dismiss the FAC pursuant to Federal Rules of Civil Procedure
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`12(b)(1) and 12(b)(6). (See Not. of Mot.) “The standard of review for a motion to dismiss under
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`Rule 12(b)(1) is substantively ‘identical’ to the standard for a Rule 12(b)(6) motion.” McNeil v.
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`Yale Chapter of Alpha Delta Phi Int’l, Inc., No. 21-639, 2021 WL 5286647, at *1 (2d Cir.
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`Nov. 15, 2021) (summary order) (quoting Moore v. PaineWebber, Inc., 189 F.3d 165, 169 n.3
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`(2d Cir. 1999)). “In deciding both types of motions, the Court must accept all factual allegations
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`in the complaint as true, and draw inferences from those allegations in the light most favorable to
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`the plaintiff.” Gonazalez v. Option One Mortg. Corp., No. 12-CV-1470, 2014 WL 2475893, at
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`*2 (D. Conn. June 3, 2014) (quotation marks omitted). However, “[o]n a Rule 12(b)(1)
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`motion, . . . the party who invokes the Court’s jurisdiction bears the burden of proof to
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`demonstrate that subject matter jurisdiction exists, whereas the movant bears the burden of proof
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`on a motion to dismiss under Rule 12(b)(6).” Id. (citing Lerner v. Fleet Bank, N.A., 318 F.3d
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`113, 128 (2d Cir. 2003)); see also Gerasimov v. Amalgamated Hous. Corp., No. 21-CV-1760,
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`2021 WL 6338522, at *3 (S.D.N.Y. Dec. 17, 2021) (“The only difference between Rule 12(b)(1)
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`and 12(b)(6) motions is the allocation of the burden of proof.”).
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`1. Rule 12(b)(1)
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`“A federal court has subject matter jurisdiction over a cause of action only when it has
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`the authority to adjudicate the cause pressed in the complaint.” Bryant v. Steele, 25 F. Supp. 3d
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`233, 241 (E.D.N.Y. 2014) (quoting Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008)).
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`“Determining the existence of subject matter jurisdiction is a threshold inquiry, and a claim is
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`properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when a district
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`court lacks the statutory or constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank
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`Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citation omitted); see also McNeil, 2021 WL 5286647, at
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`*1 (“Dismissal is proper under Rule 12(b)(1) for lack of subject matter jurisdiction ‘when the
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`district court lacks the statutory or constitutional power to adjudicate’ the claim, such as when
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`Article III standing is not met.” (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
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`2000))). “In adjudicating a motion to dismiss for lack of subject matter jurisdiction pursuant to
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`Rule 12(b)(1), the court may consider matters outside the pleadings.” Rutherford v. Fla. Union
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`Free Sch. Dist., No. 16-CV-9778, 2019 WL 1437823, at *2 (S.D.N.Y. Mar. 29, 2019) (citation
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`omitted).
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`2. Rule 12(b)(6)
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`The Supreme Court has held that although a complaint “does not need detailed factual
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`allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
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`entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
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`elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
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`(alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure
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`“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft
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`v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked assertions
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`devoid of further factual enhancement.” Id. (alteration and quotation marks omitted). Rather, a
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`complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative
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`level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be
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`supported by showing any set of facts consistent with the allegations in the complaint,” id. at
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`563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its
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`face,” id. at 570, if a plaintiff has not “nudged [his] claim[] across the line from conceivable to
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`plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679 (“Determining
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`whether a complaint states a plausible claim for relief will . . . be a context-specific task that
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`requires the reviewing court to draw on its judicial experience and c ommon sense. But where
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`the well-pleaded facts do not permit the court to infer more than the mere possibility of
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`misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
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`relief.’” (second alteration in original) (citation omitted) (quoting FED. R. CIV. P. 8(a)(2))); id. at
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`678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading
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`regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with
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`nothing more than conclusions.”).
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`“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
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`factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
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`curiam), and “draw all reasonable inferences in the plaintiff’s favor,” Div. 1181, 9 F.4th at 95
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`(citation omitted). Additionally, “when ruling on Rule 12(b)(6) motions to dismiss,” district
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`courts are directed to confine their consideration to “the complaint in its entirety, . . . documents
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`incorporated into the complaint by reference, and matters of which a court may take judicial
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`notice.” Bellin v. Zucker, 6 F.4th 463, 473 (2d Cir. 2021) (quotation marks omitted); see also
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`Dashnau v. Unilever Mfg. (US), Inc., 529 F. Supp. 3d 235, 240 (S.D.N.Y. Mar. 26, 2021) (same).
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`Finally, fraud claims—including common law fraud claims—are subject to the
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`heightened pleading standard set forth in Rule 9(b). See Matana v. Merkin, 957 F. Supp. 2d 473,
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`484 (S.D.N.Y. 2013) (“[A] claim for common law frau d under New York law must satisfy the
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`requirements of the heightened pleading standard under Federal Rule of Civil Procedure 9(b).”
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`(collecting cases)). Rule 9(b) provides: “In alleging fraud or mistake, a party must state with
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`particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and
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`other conditions of a person’s mind may be alleged generally.” FED. R. CIV. P. 9(b). However,
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`courts “‘must not mistake the relaxation of Rule 9(b)’s specificity requirement regarding
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`condition of mind for a license to base claims of fraud on speculation and conclusory
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`allegations,’” rather “‘plaintiffs must allege facts that give rise to a strong inference of fraudulent
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`intent.’” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir. 2006) (quoting Acito v. IMCERA
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`Grp., Inc., 47 F.3d 47, 52 (2d Cir. 1995)). “An inference is ‘strong’ if it is cogent and at least as
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`compelling as any opposing inference one could draw from the facts alleged.” Pilkington
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`N. Am., Inc. v. Mitsui Sumitomo Ins. Co. of Am., 460 F. Supp. 3d 481, 492 (S.D.N.Y. 2020)
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`(quoting Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 176–77 (2d
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`Cir. 2015)).
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`B. Analysis
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`Defendant argues that (1) Plaintiffs’ GBL claims fail because Plaintiffs fail to allege that
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`they saw the supposedly misleading statements on the Products’ labels before purchasing them
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`and because no reasonable consumer would be misled by Defendant’s representations on the
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`Products’ labels, (see Def.’s Mem. 6–8); (2) Plaintiffs’ claim for breach of express warranty fails
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`because Plaintiffs failed to allege that they provided Defendant with pre -suit notice and because
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`Turk has failed to allege defects in materials or workmanship (i.e., the only defects covered by
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`her express warranty), (see id. at 9–11); (3) Plaintiffs cannot state a cognizable claim for breach
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`of the implied warranty of merchantability because Plaintiffs failed to allege privity with
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`Defendant, (see id. at 11–12); (4) Plaintiffs’ MMWA claim fails because Plaintiffs have failed to
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`state a cognizable claim for breach of an express or implied warranty, (see id. at 12–13);
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`(5) Plaintiffs cannot adequately state a claim for negligent misrepresentation because Plaintiffs
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`have failed to allege the existence of a special relationship with Defendant, (see id. at 13–15);
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`(6) Plaintiffs fail to state a claim for fraud because Plaintiffs have failed to plead scienter, (see id.
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`at 15–16); (7) Plaintiffs’ claim for unjust enrichment must be dismissed as duplicative, (see id. at
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`17); and (8) Plaintiffs lack standing to seek injunctive relief, (see id. at 18–19).
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`The Court addresses each argument in turn, beginning with Defendant’s argument as to
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`Plaintiffs’ lack of standing to pursue injunctive relief , and thus, this Court’s subject matter
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`jurisdiction.
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`1. Standing to Seek Injunctive Relief
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`Article III of the Constitution restricts federal judicial power to the resolution of cases
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`and controversies. U.S. CONST. art. III, § 2. “That case-or-controversy requirement is satisfied
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`only where a plaintiff has standing.” Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S.
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`269, 273 (2008). “Article III standing requires plaintiffs to show (1) an ‘injury in fact,’ (2) a
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`‘causal connection’ between that injury and the conduct at issue, and (3) a likelihood ‘that the
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`injury will be redressed by a favorable decision.’” Maddox v. Bank of N.Y. Mellon Tr. Co., N.A.,
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`19 F.4th 58, 62 (2d Cir. 2021) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).
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`“[A] plaintiff must demonstrate standing for each claim and form of relief sought,” Cacchillo v.
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`Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011) (quoting Baur v. Veneman, 352 F.3d 625, 642
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`n.15 (2d Cir. 2003)), and a plaintiff “seeking injunctive relief must also prove that the identified
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`injury in fact presents a real and immediate threat of repeated injury,” Kreisler v. Second Ave.
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`Diner Corp., 731 F.3d 184, 187 (2d Cir. 2013). “Although past injuries may provide a basis for
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`standing to seek money damages, they do not confer standing to seek injunctive relief unless the
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`plaintiff can demonstrate that she is likely to be harmed again in the future in a similar way.”
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`Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016). And, “[a] plaintiff seeking to
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`represent a class must personally have standing.” Id. (citing Lewis v. Casey, 518 U.S. 343, 357
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`(1996)).
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`Defendant argues that Plaintiffs have failed to allege any real or immediate threat of
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`future injury sufficient to confer standing over their claim for injunctive relief, because armed
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`with “the knowledge they now have, Plaintiffs cannot plausibly claim that they will be deceived
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`into purchasing [Defendant’s Products] again.” (Def.’s Mem. 18–19 (quotation marks omitted).)
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`The Court agrees, as, it would appear, do Plaintiffs, because they wisely abandoned this claim by
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`failing to include it in their Opposition to Defendant’s Motion. (See generally Pls.’ Mem.) See
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`also Barreto v. Westbrae Nat., Inc., 518 F. Supp. 3d 795, 807 (S.D.N.Y. 2021) (“A court may,
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`and generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant’s
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`arguments that the claim should be dismissed.” (alterations and citation omitted)); Laface v. E.
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`Suffolk BOCES, No. 18-CV-1314, 2019 WL 1959489, at *8 (E.D.N.Y. May 2, 2019) (“In the
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`Second Circuit, a plaintiff’s failure to respond to contentions raised in a motion to dismiss
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`constitute[s] an abandonment of those claims.” (alteration and quotation marks omitted)
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`(collecting cases)). Because Plaintiffs have abandoned their claim for injunctive relief, it is
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`subject to dismissal.
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`Nonetheless, the Court emphasizes that the Second Circuit has squarely foreclosed the
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`possibility of injunctive relief for past purchasers, like Plaintiffs here. See Berni v. Barilla
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`S.p.A., 964 F.3d 141, 147 (2d Cir. 2020) (“[P]ast purchasers of a consumer product who claim to
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`be deceived by that product’s packaging . . . have, at most, alleged a past harm.”). The Berni
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`court explained that “[i]n the first place, past purchasers are not bound to purchase a product
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`again—meaning that once they become aware they have been deceived, that will often be the last
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`time they will buy that item.” Id. “But even if they do purchase it again, there is no reason to
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`believe that [past purchasers] will incur a harm anew,” because “they will not again be under the
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`illusion that” the product meets the standard they alleged was promised on the deceptive label.
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`Id. at 148. Rather, “next time they buy one of the [products], they will be doing so with exactly
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`the same level of information they claim they were owed from the beginn ing.” Id. It is for this
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`reason that courts routinely dismiss claims for injunctive relief brought by past purchasers, and
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`that this Court would have dismissed Plaintiffs’ claim for injunctive relief here even if Plaintiffs
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`had not abandoned it. See, e.g., Valcarel v. Ahold U.S.A., Inc., — F. Supp. 3d — , 2021 WL
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`6106209, at *10 (S.D.N.Y. Dec. 22, 2021) (finding that plaintiff, who alleged that “she is unable
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`to rely on the accuracy of the product’s from label in the future, which causes her to avoid
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`purchasing the product, even though she would otherwise like to do so ,” lacked standing to seek
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`injunctive relief under Berni); Brown v. Kerry Inc., No. 20-CV-9730, 2021 WL 5446007, at *11
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`(S.D.N.Y. Nov. 22, 2021) (finding that the plaintiff, who alleged that she “intends to, seek[s] to,
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`and will purchase the [p]roduct again when she can do so with the assurance that [the]
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`[p]roduct’s labels are consistent with the [p]roduct’s components,” lacked standing to seek
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`injunctive relief because “such conditional statements of a consumer’s intent to repurchase a
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`product are insufficient to allege a likelihood of future injury” (quotation marks omitted)), report
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`and recommendation adopted, 2022 WL 669880 (S.D.N.Y. Mar. 7, 2022); Rivera v. S.C.
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`Johnson & Son, Inc., No. 20-CV-3588, 2021 WL 4392300, at *8–9 (S.D.N.Y. Sept. 24, 2021)
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`(finding that the plaintiffs, who alleged that they would buy the products again “if assured they
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`did not contain components which were toxic and had the harsh physical and environmental
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`effects they did,” did not have standing to seek injunctive relief because “[t]he [c]ourt cannot
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`conceive of a scenario in which these [p]laintiffs would again be deceived by the [p]roducts’
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`allegedly misleading representations, let alone what kind of inju nctive relief would prevent such
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`a deception” (alterations and quotation marks omitted)).
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`Because Plaintiffs lack standing to pursue injunctive relief, either on their own behalf or
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`on behalf of the proposed class, see Nicosia, 834 F.3d at 239, the Court dismisses all claims for
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`injunctive relief.1
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`2. New York General Business Law §§ 349 and 350 Claims
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`“Section 349 [of the GBL] prohibits ‘deceptive acts or practices in the conduct of any
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`business, trade[,] or commerce,’ whereas § 350 prohibits ‘false advertising in the conduct of any
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`business, trade[,] or commerce.’” Wynn v. Topco Assocs., LLC, No. 19-CV-11104, 2021 WL
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`168541, at *2 (S.D.N.Y. Jan. 19, 2021) (alterations omitted) (quoting N.Y. G.B.L. §§ 349, 350).
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`“‘The standard for recovery under . . . § 350, while specific to false advertising, is otherwise
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`identical to [§] 349,’ and therefore the Court will merge its analysis of the two claims.”
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`Cosgrove v. Oregon Chai, Inc., 520 F. Supp. 3d 562, 575 (S.D.N.Y. 2021) (citation omitted)
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`(quoting Goshen v. Mut. Life Ins. Co. of N.Y., 774 N.E.2d 1190, 1195, n.1 (N.Y. 2002)); see also
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`Barreto, 518 F. Supp. 3d at 802 (same); Duran v. Henkel of Am., Inc., 450 F. Supp. 3d 337, 346
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`(S.D.N.Y. 2020) (noting that “courts have found that the scope of § 350 is as broad as that of
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`§ 349 . . . and that its essential elements are the same” (alteration in original) (citation omitted)).
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`To state a claim under either section, “a plaintiff must allege that a defendant has engaged in
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`(1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered
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`injury as a result of the allegedly deceptive act or practice.” Wynn, 2021 WL 168541, at *2
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`(quoting Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015)); see also Cosgrove, 520
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`F. Supp. 3d at 575 (same); Twohig v. Shop-Rite Supermarkets, Inc., 519 F. Supp. 3d 154, 160
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`(S.D.N.Y. 2021) (same).
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`
`1 The Court reiterates its warning to Plaintiffs’ counsel included in its recent decision in
`Gordon v. Target Corporation, No. 20-CV-9589, Dkt. No. 23, at 20 n.3 (S.D.N.Y. Mar. 18,
`2022). Should Plaintiffs’ counsel attempt to bring another plainly frivolous claim for injunctive
`relief on behalf of a past purchaser before this Court, the Court will impose Rule 11 sanctions.
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`Case 7:21-cv-00270-KMK Document 32 Filed 03/21/22 Page 13 of 33
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`a. Consumer-Oriented Conduct
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`Defendant appears to concede—or at least, does not contest for purposes of its Motion—
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`that its conduct was consumer-oriented. (See generally Def.’s Mem.) “A defendant engages in
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`‘consumer-oriented’ activity if [the company’s] actions cause any ‘consumer injury or harm to
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`the public interest.’” New York v. Feldman, 210 F. Supp. 2d 294, 301 (S.D.N.Y. 2002) (quoting
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`Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir. 1995)). This requirement is
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`liberally construed, id., and “may be satisfied by showing that the conduct at issue ‘potentially
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`affect[s] similarly situated consumers,’” Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 64 (2d Cir.
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`2010) (alteration in original) (quoting Oswego Laborers’ Local 214 Pension Fund v. Marine
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`Midland Bank, N.A., 647 N.E.2d 741, 745 (N.Y. 1995)). Here, Plaintiffs allege that Defendant is
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`responsible for “market[ing], manufactur[ing][,] and sell[ing]” the Products, which are sold via
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`multiple different third-party partners, including “Lowes, Home Depot, Amazon[,] and
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`Walmart.” (FAC ¶¶ 1, 8, 9, 23.) These allegations are sufficient to satisfy the first element of
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`Plaintiffs’ GBL claims. See Karlin v. IVF Am., Inc., 712 N.E.2d 662, 665 (N.Y. 1999)
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`(observing that GBL §§ 349 and 350 “apply to virtually all economic activity, and their
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`application has been correspondingly broad” (footnote omitted) (collecting cases)); Sheth v. N.Y.
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`Life Ins. Co., 709 N.Y.S.2d 74, 75 (App. Div. 2000) (noting that “consumer-oriented”
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`requirement may be satisfied “by a showing that the practice has a broader impact on the
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`consumer at large”).
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`b. Materially Misleading Conduct
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`Defendant instead focuses on the second elements of Plaintiffs’ GBL claims, arguing that
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`Plaintiffs cannot state a cognizable claim for violations of GBL §§ 349 and 350 because no
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`reasonable consumer would find Defendant’s representations on the Products’ labels to be
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`misleading. (See Def.’s Mem. 7–8.) The Court agrees.
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`Case 7:21-cv-00270-KMK Document 32 Filed 03/21/22 Page 14 of 33
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`To survive a motion to dismiss, Plaintiff s “must do more than plausibly allege that a label
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`might conceivably be misunderstood by some few consumers.” Twohig, 519 F. Supp. 3d at 161
`
`(quoting Sarr v. BEF Foods, Inc., No. 18-CV-6409, 2020 WL 729883, at *3 (E.D.N.Y. Feb. 13,
`
`2020)). “Instead, plaintiffs must ‘plausibly allege that a significant portion of the general
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`consuming public or of targeted customers, acting reasonably in the circumstances, could be
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`misled.’” Id. (quoting Sarr, 2020 WL 729883, at *3). And, “[a]lthough the question of whether
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`a business practice or advertisement is misleading to a reasonable consumer is generally a
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`question of fact, it is ‘well settled that a court may determine as a matter of law that an allegedly
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`deceptive practice would not have misled a reasonable consumer.’” Id. (alteration omitted)
`
`(quoting Wynn, 2021 WL 168541, at *2); see also Brown, 2021 WL 5446007, at *2 (same).
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`Here, Plaintiffs have failed to allege that a reasonable consumer would be deceived by the
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`Products’ labels.
`
`Plaintiffs allege that the Products’ labels are misleading because they indicate that the
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`Products will retain ice for up to five days, when the reality is that when the Products are used
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`under normal conditions, they will not retain ice for a fu ll five days. (See FAC ¶¶ 1–31.)
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`Plaintiffs also allege that a reasonable consumer would interpret a phrase like “Keeps Ice – Up to
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`5 Days at 90 degrees F” to mean that the Products would maintain a food-safe temperature of 40°
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`Fahrenheit or lower for five full days. (See id.) And in reality, the Products fail to maintain a
`
`food-safe temperature of 40° Fahrenheit or lower beyond two days. (See id.) However, “in
`
`determining whether a reasonable consumer would be misled[,] the Court must consider the
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`entire context of the package.” Sarr, 2020 WL 729883, at *4 (alterations omitted) (quoting
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`Fermin v. Pfizer, 215 F. Supp. 3d 209, 211 (E.D.N.Y. 2016)). Thus, “if a plaintiff alleges that an
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`element of a product’s label is misleading, but another portion of the label would dispel the
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`Case 7:21-cv-00270-KMK Document 32 Filed 03/21/22 Page 15 of 33
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`confusion, the court should ask whether the misleading element is ambiguous. If so, the
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`clarification can defeat the claim.” Id. (alteration omitted) (quoting Reyes v. Crystal Farms
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`Refrigerated Distrib. Co., No. 18-CV-2250, 2019 WL 3409883, at *3 (E.D.N.Y. July 26, 2019));
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`see also Garadi v. Mars Wrigley Confectionary US, LLC, Nos. 21-CV-2309, 21-CV-1996, 2021
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`WL 2843137, at *2 (E.D.N.Y. July 6, 2021) (explaining that “determining the likelihood that
`
`reasonable consumers would be misled entails viewing each allegedly misleading statement in
`
`light of its context on the label and in connection with the marketing of the product as a whole”
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`(quotation marks and alterations omitted)). When considering the full context of both Products’
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`labels, the Court finds that no reasonable consumer could be misled.
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`Plaintiffs allege that the DuraChill Cooler’s label prominently states that it will retain ice
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`for “5 days,” a statement accompanied by an asterisk leading to another statement “which
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`qualifies the ‘5 day’ claim by indicating this was at 90 degrees Fahrenh eit and ‘under test
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`conditions.’” (FAC ¶¶ 10, 13.) Plaintiffs allege that the Marine Cooler’s label states that it
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`“Keeps Ice – Up to 5 Days at 90 degrees F.” (Id. ¶ 9.) The Court fails to understand how a
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`reasonable consumer could interpret these statements to mean that the Products would always
`
`retain ice for a full five days or more with normal use or would maintain a food-safe temperature
`
`of 40° Fahrenheit or lower for five days. First, Plaintiffs do not allege that the Products’ labels
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`make any representation at all as to what temperature the Products can maintain, what
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`temperature constitutes a food-safe temperature, or how long the Products can maintain a food-
`
`safe temperature. As such, no reasonable consumer could be deceived into believing tha t the
`
`Products would maintain a food-safe temperature for any amount of time. See, e.g., Brady v.
`
`Basic Research, L.L.C., 101 F. Supp. 3d 217, 236–37 (E.D.N.Y. Mar. 31, 2015) (dismissing
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`GBL § 349 claim where “the [product’s] packaging in the [complaint] does not represent that the
`
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`Case 7:21-cv-00270-KMK Document 32 Filed 03/21/22 Page 16 of 33
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`product is safe, and cannot, therefore, amount to a material misrepresentation as a matter of
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`law”).
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`Second, as to the Products’ representations regarding ice retention, Plaintiffs would have
`
`this Court credit the notion that a reasonable consumer would interpret the phrase “retains ice for
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`up to 5 days at 90 degrees F” and “retains ice for up to 5 days at 90 degrees Fahrenheit under test
`
`conditions” to mean “retains ice for at least 5 days at 90 degrees F” and “retains ice for at least 5
`
`days at 90 degrees Fahrenheit with normal use.” This is simply not plausible. See, e.g., Fink v.
`
`Time Warner Cable, 714 F.3d 739, 742 n.3 (2d Cir. 2