Duane Morris Consumer Fraud Class Action Review – 2024

In Hicks, et al. v. L’Oréal U.S.A., Inc ., 2023 U.S. Dist. LEXIS 176565 (S.D.N.Y. Sept. 30, 2023), the plaintiffs filed a class action alleging that the defendant violated state consumer protection laws by failing to disclose the presence of Per and Polyfluoroalkyl Substances (PFAS) in its waterproof mascara products. PFAS are synthetic chemicals that have been used in various consumer products, including cosmetics. The plaintiffs claimed that PFAS are toxic to humans and animals and are associated with harmful health effects, including cancer, pregnancy-induced hypertension, and thyroid disease, and that the defendant engaged in deceptive advertising by not disclosing the presence of PFAS in its mascara products. The plaintiffs argued that they were injured by purchasing the mascara at a premium price, believing it to be safe and of high quality, and that they would not have purchased the defendant ’ s mascara had they known about the presence of PFAS. The defendant filed a motion to dismiss the amended complaint, primarily arguing that the plaintiffs did not demonstrate they had standing to bring the lawsuit. The court held that plaintiffs failed to sufficiently allege that the mascaras they individually purchased actually contained PFAS or that there was a material risk that they did, and they could not establish an actual injury, so no standing was shown under § 349-50 of the New York General Business Law. The court also rejected plaintiffs’ attempts to use a Notre Dame 2021 study coupled with a second specially commissioned study as the basis for establishing an actual injury where: (i) the mascaras purchased by plaintiffs were not used in the Notre Dame study; and (ii) the second study was flawed. For these reasons, the court granted the defendant ’ s motion to dismiss. In Hodorovych, et al. v. Dollar General Corp., 2023 U.S. Dist. LEXIS 89750 (N.D. Ill. May 23, 2023), the plaintiff, a consumer, filed a class action alleging that Dollar General falsely labeled its lidocaine patch products in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), as well as other state consumer fraud acts, the Magnuson Moss Warranty Act. The plaintiff also asserted that Dollar General breached certain warranties, and also brought claims for negligent misrepresentation, fraud, and unjust enrichment. Dollar General moved to dismiss the complaint, which the court granted. As to the plaintiffs’ ICFA claim, the court found that the plaintiff failed to sufficiently allege Dollar General ’ s intent and that actual damages were sustained as a result of Dollar General ’ s alleged deception. The court also granted the motion as to the state consumer fraud claims, as they were dependent on the plaintiff ’ s ICFA claim and because the plaintiff failed to identify which laws Dollar General allegedly violated. As to the breach of warranty claims, the court determined that pre-suit notice was not given to Dollar General, though it was required under the statute. As for the claims of negligent misrepresentation, fraud, and unjust enrichment, the court found that the plaintiff failed to sufficiently plead the elements of the claims. Finally, the court dismissed the plaintiff ’ s request for injunctive relief because she failed to demonstrate she was likely to suffer future damages due to Dollar General ’ s conduct. For these reasons, the court granted the defendant ’ s motion to dismiss. In In Re Beech-Nut Nutrition Co. Baby Food Litigation , 2023 U.S. Dist. LEXIS 10541 (N.D.N.Y. Jan. 19, 2023), the plaintiffs, a group of consumers who had purchased baby food, brought a consolidated class action lawsuit against the defendant, Beech-Nut Nutrition Co., a manufacturer, alleging that it sold products without adequately testing them or disclosing that they contained elevated levels of toxic heavy metals, that such levels could be dangerous to human health, especially to infants and children, and that its September 2021 recall of such products was incomplete. The plaintiffs sought monetary damages and injunctive relief, alleging breach of warranty, fraud, negligent misrepresentation, unjust enrichment, and unlawful business practices for the defendant ’ s alleged failure to fully disclose the toxic heavy metals present in its products. Beech-Nut argued that under the primary jurisdiction doctrine, the U.S. Food and Drug Administration (FDA) had jurisdiction over the matter due to its expertise on the issues in the lawsuit. The court granted the defendant ’ s motion to dismiss, noting that it was in the interest of consistency to defer to the FDA ’ s authority on food safety standards concerning toxic levels of heavy metals because courts considering the same matters had resulted in rulings with “differing conclusions.” Id. at *11. In Kampmann, et al. v. The Procter & Gamble Company, Case No. 23-CV-1021 (C.D. Ill. Oct. 24, 2023), the plaintiff filed a class action alleging that the defendant ’ s DayQuil cold medicine misled consumers by packaging its Super C brand supplements with the cold medicine in violation of the Illinois Consumer Fraud

Made with FlippingBook - professional solution for displaying marketing and sales documents online