JANKOWSKI v. ZYDUS PHARMACEUTICALS USA, INC.
3:20-cv-02458
D.N.J.May 31, 2021Background
- Plaintiff clicked a Snapchat ad for "Nuvega Lash," ordered two advertised "free samples" plus a $15 item; later her credit card was charged a $92.94 recurring subscription fee.
- Plaintiff's bank temporarily reversed the charge but later reinstated it after an investigation; Plaintiff alleges Defendants told the bank she agreed to the subscription.
- A company representative told Plaintiff she had agreed to the subscription and offered a full refund if Plaintiff returned the products; Plaintiff declined the refund and filed suit in Feb. 2020.
- Plaintiff's First Amended Complaint (filed May 2020) asserted multiple California consumer-protection and federal claims (including ARL, EFTA, RICO) on behalf of a nationwide class; the case was transferred from the N.D. Cal. to D.N.J.
- Defendants moved to dismiss for lack of subject-matter jurisdiction, arguing the pre-litigation, ordinary-course refund offer mooted Plaintiff’s claims; the Court granted the motion and dismissed the FAC without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiff's claims are moot because she was offered a full refund pre‑litigation | Refund offer was an unaccepted settlement-like offer and cannot moot claims (relies on Campbell‑Ewald) | Pre‑litigation ordinary‑course refund offer rendered Plaintiff whole and thus mooted her claims | Court: Moot — pre‑litigation business refund offer (not a settlement/Rule 68 offer) moots the case; dismiss for lack of jurisdiction |
| Whether Campbell‑Ewald (and its progeny) bars mooting by a refund offer | Campbell‑Ewald means an unaccepted offer of judgment/settlement does not moot claims; plaintiff urges extension to pre‑suit refunds | Campbell argues Campbell‑Ewald is inapplicable because that case addressed Rule 68 / settlement offers, not ordinary business refunds | Court: Declines to extend Campbell‑Ewald to pre‑litigation ordinary business refunds; Campbell‑Ewald inapposite here |
| Whether Plaintiff would remain injured even if she accepted the refund (postage, lost use of money, bank reversal limitations) | Refund would not make her entirely whole because of return shipping, possible limits on bank chargeback rights, and loss of use of money | Refund would have made Plaintiff whole; no authority shows those narrow costs preserve jurisdiction | Court: Plaintiff did not plead or cite controlling authority showing these retained harms preserve Article III jurisdiction; arguments insufficient |
Key Cases Cited
- Campbell‑Ewald Co. v. Gomez, 577 U.S. 153 (2016) (unaccepted Rule 68 offer or settlement offer does not moot a plaintiff's claim)
- Hayes v. Wal‑Mart Stores, Inc., 725 F.3d 349 (3d Cir. 2013) (pre‑litigation refund can eliminate injury and standing; moots claim)
- Weitzner v. Sanofi Pasteur, Inc., 819 F.3d 61 (3d Cir. 2016) (applies Campbell‑Ewald in Third Circuit context)
- Laurens v. Volvo Cars of N. Am., 868 F.3d 622 (7th Cir. 2017) (applies Campbell‑Ewald to unaccepted settlement proposals in pre‑existing suit)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing burden and proof at successive litigation stages)
- Steffel v. Thompson, 415 U.S. 452 (1974) (case/controversy must exist at all stages of review)
- Gould Elecs., Inc. v. United States, 220 F.3d 169 (3d Cir. 2000) (when resolving a facial Rule 12(b)(1) challenge, court accepts complaint allegations and considers complaint‑referenced documents)