252 F. Supp. 3d 304
S.D.N.Y.2017Background
- Plaintiff James Kommer, a New York resident, purchased Dr. Scholl’s “Custom Fit Orthotic Inserts” after using an in-store Dr. Scholl’s foot-mapping Kiosk and alleges he was misled into thinking the inserts were individually tailored and functionally equivalent to prescription orthotics.
- The Kiosk maps feet and recommends one of fourteen pre-packaged insert models displayed beside the machine; Plaintiff paid $50 for the inserts after repeated Kiosk recommendations and alleges increased foot pain versus his prior prescribed orthotics.
- Plaintiff brought a putative class action under New York GBL §§ 349 (deceptive acts) and 350 (false advertising), seeking damages and injunctive relief; defendants moved to dismiss for failure to state a claim and for lack of standing to seek injunctive relief.
- The Court considered the full Kiosk Instructions (provided by defendants) as incorporated into the complaint; those instructions include a prominent disclaimer that the Kiosk does not diagnose medical conditions and is not a substitute for a podiatrist.
- The court concluded Plaintiff lacked standing to seek injunctive relief and, on the merits, held Plaintiff failed to plausibly allege a materially misleading practice because (1) the product’s prepackaged, over‑the‑counter nature was apparent at the point of sale, and (2) the Kiosk Instructions’ clear disclaimer undercut the alleged deception.
- The Court dismissed the complaint with prejudice and denied leave to replead as futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for injunctive relief | Kommer argues policy allows injunctive relief even if he will avoid the product in future because public protection requires it | Defendants contend Kommer cannot show likelihood of future harm and thus lacks Article III standing | Court: No standing to seek injunction; plaintiff conceded he will not repurchase and precedent disfavors a public‑policy exception |
| Whether the Kiosk and marketing were materially misleading under GBL §§ 349/350 | Kommer: Kiosk and marketing (product name, tech appearance, model codes) led reasonable consumers to believe inserts are custom and equivalent to prescribed orthotics | Defendants: Disclosures and visible prepackaged product show inserts are OTC; Kiosk contains a clear medical disclaimer | Court: Not materially misleading as a matter of law — point‑of‑sale packaging and prominent disclaimer defeat claim |
| Causation/injury under GBL §§ 349/350 | Kommer: Paid a premium price ($50) because he believed inserts were custom; suffered increased pain | Defendants: Plaintiff could see the prepackaged OTC nature and thus could not have relied on alleged misrepresentations causing the premium | Court: Plaintiff failed to show the alleged deception caused the premium payment; reasonable consumers would not be misled |
| Leave to amend | Kommer did not seek leave to replead | Defendants argued dismissal should be with prejudice and repleading would be futile | Court: Denied leave to replead; dismissal with prejudice due to substantive deficiencies |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (establishes plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading must contain factual allegations supporting legal conclusions)
- City of Los Angeles v. Lyons, 461 U.S. 95 (injunction requires a likelihood of future harm for Article III standing)
- Nicosia v. Amazon.com, Inc., 834 F.3d 220 (order pages/web content incorporated into complaints; plaintiff must personally have standing for injunctive relief)
- Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20 (materially misleading standard: whether a reasonable consumer would be misled)
- Orlander v. Staples, Inc., 802 F.3d 289 (elements for GBL §§ 349 and 350 claims)