501 F.Supp.3d 316
W.D. Pa.2020Background
- Plaintiffs Christopher Lisowski (PA) and Robert Garner (MD) sued Henry Thayer Co., Inc. (Thayer) alleging products marketed as “Natural/ Natural Remedies” and some Dry Mouth products labeled “preservative-free” actually contain synthetic ingredients and preservatives.
- Claims asserted: Pennsylvania UTPCPL, Magnuson-Moss (dismissed by plaintiffs), breach of express warranty, unjust enrichment, negligent/fraudulent misrepresentation (dismissed), and Maryland CPA.
- Thayer moved to dismiss under Fed. R. Civ. P. 12(b)(1), (2), and (6). At oral argument plaintiffs withdrew federal warranty and fraud counts; court considered remaining state-law claims.
- Mr. Garner conceded Pennsylvania lacks personal jurisdiction; court dismissed all his claims for lack of personal jurisdiction.
- Court found Lisowski lacks Article III standing to seek injunctive relief because he does not plausibly face imminent future injury. Court dismissed his express-warranty claim for failure to give required pre-suit notice and because a tradename does not create a warranty.
- Court permitted Lisowski to proceed on UTPCPL and unjust-enrichment theories only as to two Dry Mouth products he purchased (Peppermint Dry Mouth Spray and Tangerine Slippery Elm Lozenges) labeled “preservative-free”; other UTPCPL allegations were dismissed (with limited leave to amend labeling/timing specifics).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction over Thayer for Garner's claims | Garner sought to keep claims pending in PA (or have pendant jurisdiction) | Thayer argued Pennsylvania lacks specific or general jurisdiction over claims arising in Maryland | Court: Garner conceded lack of PJ; all Garner claims dismissed for lack of personal jurisdiction (pendant PJ not available absent federal claims) |
| Standing to seek injunctive relief (Lisowski) | Lisowski says he would like to buy Thayer products again but cannot rely on labeling unless corrected, so injunctive relief is needed | Thayer says Lisowski is not likely to be injured in the future—he has stopped buying products—so no Article III standing for prospective relief | Court: Denied injunctive relief; Lisowski lacks standing to seek injunctive relief under Third Circuit precedent (McNair/Johnson & Johnson) |
| Breach of express warranty: role of tradename and pre-suit notice | Lisowski contends labeling/"Natural Remedies" and other affirmations created express warranties | Thayer: trademark can’t create an express warranty; plaintiff failed to give required UCC pre-suit notice | Court: Trademark does not create an express warranty; Lisowski failed to give timely individual pre-suit notice (letter sent after amendment), so express-warranty claim dismissed with prejudice |
| UTPCPL deceptive-practices claim (labels/web statements) | Lisowski alleged labels/web marketing mislead reasonable consumers into believing products are natural or preservative-free and that he relied and suffered ascertainable loss | Thayer argued label language, read in full context, is not deceptive or misleading and plaintiff fails to plead reliance/ascertainable loss for most products | Court: Allowed UTPCPL claim to proceed only as to the two Dry Mouth products labeled “preservative-free” that Lisowski purchased (sufficiently plead deception, reliance, ascertainable loss); other UTPCPL allegations dismissed but limited leave to amend re: labeling/timing for nondisclosed synthetics |
| Unjust enrichment (as companion to UTPCPL) | Lisowski alleged Thayer unjustly benefited from deceptive sales and should disgorge premium amounts | Thayer argued unjust enrichment fails because plaintiff received products in exchange | Court: Denied motion to dismiss unjust enrichment as it rises/falls with surviving UTPCPL claims (survives as to the Dry Mouth products) |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing requires concrete, particularized, actual or imminent injury)
- Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (U.S. 2017) (specific jurisdiction requires affiliation between forum and underlying controversy)
- McNair v. Synapse Group, Inc., 672 F.3d 213 (3d Cir. 2012) (former customers lacking likelihood of future injury cannot seek injunctive relief)
- In re Johnson & Johnson Talcum Powder Prods. Mktg., 903 F.3d 278 (3d Cir. 2018) (reaffirms McNair limitation on injunctive-relief standing)
- Commonwealth by Shapiro v. Golden Gate Nat’l Senior Care LLC, 194 A.3d 1010 (Pa. 2018) (defines deceptive practice standard and non-actionable puffery)
- Boyd v. TTI Floorcare N. Am., 230 F. Supp. 3d 1266 (N.D. Ala. 2017) (trade name/trademark alone does not create an express warranty)