Duran v. Henkel of America, Inc.
450 F.Supp.3d 337
S.D.N.Y.2020Background
- Plaintiff Abel Duran purchased a 6-oz bottle of göt2b ultra glued Invincible Styling Gel on Nov. 21, 2018; the front label promised “no flakes,” but Duran observed white/gray flakes after use.
- The product contains poly N-vinyl-2-pyrrolidone (PVP); plaintiff cites industry sources saying PVP can become brittle and flaky and that alternative polymers produce less flaking.
- Duran paid $7.99 (alleges a price premium) and compares unit price to several competitor gels he contends do not make the same front‑label “no flakes” claim.
- Duran brings claims under New York GBL §§ 349 and 350 (deceptive acts/false advertising) and New York common‑law fraud; seeks injunctive relief and class certification.
- Henkel moved to dismiss and to strike class claims. The district court denied dismissal of the GBL §§ 349/350 claims, granted dismissal of the common‑law fraud claim and injunctive‑relief claims for lack of standing, and denied (without prejudice) the motion to strike class claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether “no flakes” is actionable or non‑actionable puffery | “No flakes” is a specific, testable claim that the gel will not produce flakes; therefore it can mislead reasonable consumers. | The front‑label claims (“non‑sticky – no flakes – crazy hold”) are generalized marketing puffery. | Court: “no flakes” is a factual, verifiable claim (not puffery); cannot resolve as a matter of law on motion to dismiss. |
| Whether plaintiff adequately pleaded injury (price‑premium theory) under GBL §§ 349/350 | Duran paid a premium price because of the “no flakes” representation and did not receive full value. | Competitor pricing/labels and consumer satisfaction show no cognizable price premium or injury. | Court: Allegations suffice to state a price‑premium injury; comparator disputes are factual and not grounds for dismissal. |
| Whether common‑law fraud pleaded with requisite scienter under Rule 9(b) | Alleged ingredient (PVP) is known to flake; Henkel employs cosmetic scientists; therefore Henkel knowingly misrepresented product. | Plaintiff’s allegations of intent are speculative and rely on information‑and‑belief assertions about unnamed employees. | Court: Fraud claim dismissed — plaintiff failed to plead a strong inference of fraudulent intent with particularized facts. |
| Standing for injunctive relief (future injury) | Plaintiff would purchase product in future only if label/ formulation were corrected; seeks injunction to change labeling/formulation. | No real or immediate threat of future injury because plaintiff says he would not buy the product as currently labeled. | Court: No standing for injunctive relief — allegations do not show a real/immediate threat of future injury. |
| Motion to strike class claims before discovery | Class allegations sufficiently plead numerosity, commonality, typicality and injury tied to label misrepresentation. | Class claims lack standing/ fail Rule 23 prerequisites and are not ascertainable. | Court: Motion to strike denied without prejudice; class‑certification issues deferred to certification stage. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must be plausible)
- Ashcroft v. Iqbal, 556 U.S. 662 (legal conclusions not entitled to deference)
- Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (reasonable‑consumer standard for deceptive acts)
- Orlander v. Staples, Inc., 802 F.3d 289 (treating §§ 349 and 350 claims similarly)
- Lerner v. Fleet Bank, N.A., 459 F.3d 273 (Rule 9(b) scienter standards)
- Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (assessing competing inferences for scienter)
- Cohen v. JP Morgan Chase & Co., 498 F.3d 111 (reasonable consumer test / puffery analysis)