Background - Plaintiff James Kommer bought Dr. Scholl’s “Custom Fit Orthotic Inserts” sold over‑the‑counter in prepackaged sizes and sued as a putative class alleging deceptive advertising under New York GBL §§ 349 and 350. - Allegation: the product labeling and marketing falsely implied the inserts were individually/custom designed for each consumer’s feet. - Defendants moved to dismiss; the district court (Batts, J.) dismissed injunctive‑relief claims for lack of Article III standing and dismissed the remainder for failure to state a claim. Judgment was entered for defendants. - Kommer appealed to the Second Circuit, which reviewed standing and Rule 12(b)(6) dismissal de novo. - The Second Circuit affirmed: (1) Kommer lacked standing to seek injunctive relief because he does not intend to make future purchases after learning of the alleged deception; (2) the complaint failed to plausibly plead that the labeling would mislead a reasonable consumer, so §§ 349/350 claims were dismissed. ### Issues | Issue | Plaintiff's Argument | Defendant's Argument | Held | |---|---|---|---| | Standing to seek injunctive relief | Kommer contends he may seek injunctive relief on behalf of the class for ongoing deceptive practices | Defendants argue Kommer lacks Article III standing because he does not face a real or immediate threat of future injury | Held: No standing — Kommer conceded he will not purchase again, so no likelihood of future harm (affirmed) | | Failure to state a claim under GBL §§ 349 and 350 | Kommer argues marketing plausibly misled reasonable consumers into believing inserts were individually custom‑designed | Defendants argue the labeling would not mislead a reasonable consumer and allegations are insufficiently plausible | Held: Complaint fails to allege conduct likely to mislead a reasonable consumer; dismissal under Rule 12(b)(6) affirmed | ### Key Cases Cited Nicosia v. Amazon.com, Inc., 834 F.3d 220 (2d Cir. 2016) (standing required for each form of relief; past injury insufficient for injunctive relief without likelihood of future harm) City of Los Angeles v. Lyons, 461 U.S. 95 (U.S. 1983) (injunctive relief requires a real and immediate threat of future injury) Orlander v. Staples, Inc., 802 F.3d 289 (2d Cir. 2015) (§ 349/350 liability requires a showing that the act or practice is likely to mislead a reasonable consumer) Cohen v. JP Morgan Chase & Co., 498 F.3d 111 (2d Cir. 2007) (same standard for reasonable consumer in consumer protection claims) * Kommer v. Bayer Consumer Health, 252 F. Supp. 3d 304 (S.D.N.Y. 2017) (district court memorandum and order dismissing the complaint)