DiMuro v. Clinique Laboratories, LLC, 572 F. App'x 27

DiMuro, Ohayon, and Stein filed a putative class action against Clinique Laboratories, LLC and Estee Lauder Companies, Inc. alleging consumer fraud and breach of express/implied warranties related to seven Repairwear products.
District Court for the District of Connecticut dismissed the consolidated complaint with prejudice on November 22, 2013.
On appeal, plaintiffs argued they had class standing to assert claims for Repairwear products they did not buy, based on NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co.
The seven products have different ingredients and advertising claims, so each product presents unique proof obligations.
The court held plaintiffs lack class standing to pursue claims for products they did not purchase, so those claims were properly dismissed.
The court also affirmed dismissal of consumer fraud claims for failure to plead with particularity under Rule 9(b), and affirmed dismissal of unjust enrichment and warranty claims; leave to amend was denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing to sue for unpurchased products	DiMuro argues NECA-IBEW permits class standing across products.	Clinique contends each product requires distinct proof; no cross-product standing.	No class standing for unpurchased products; claims dismissed.
Sufficiency of pleading under Rule 9(b) for consumer fraud claims	Plaintiffs contend group pleading suffices for multiple products.	Clinique argues allegations are conclusory and lack specificity for fraud claims.	Consumer fraud claims dismissed for lack of particularity.
Adequacy of allegations regarding product-specific deceptive claims	Allegations show products do not work as advertised.	Allegations fail to identify specific ingredients and claims for each product.	Insufficient factual basis to show specific deceptive claims; claims dismissed.
Unjust enrichment when fraud claims dismissed	Unjust enrichment should survive with fraud.	Unjust enrichment cannot stand where fraud is dismissed.	Affirmed dismissal of unjust enrichment claim.
Breach of express and implied warranty viability	Products failed to perform as promised; warranties breached.	Allegations are conclusory and not plausibly supported.	Dismissed Plaintiffs' warranty claims.
Leave to amend the complaint	District court should have allowed amendment to cure deficiencies.	Amendment would not plausibly cure deficiencies; advisory opinion not required.	District court did not abuse discretion in denying leave to amend.

NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145 (2d Cir. 2012) (class standing across related securities requires nearly identical misrepresentations)
Mills v. Polar Molecular Corp., 12 F.3d 1170 (2d Cir. 1993) (Rule 9(b) particularity requires identifying fraudulent statements)
Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124 (2d Cir. 1994) (Rule 9(b) not a license for speculative allegations)
DiVittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242 (2d Cir. 1987) (fair notice requirement under Rule 9(b))
Luce v. Edelstein, 802 F.2d 49 (2d Cir. 1986) (detailed facts needed to plead fraud under Rule 9(b))
Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility standard for complaint sufficiency)
Galiano v. Fid. Nat’l Title Ins. Co., 684 F.3d 309 (2d Cir. 2012) (pleading requirements under Rule 12(b)(6) for plausibility)