684 F.Supp.3d 127
S.D.N.Y.2023Background
- Plaintiffs Wiggins (NY), Torres (CA), and Harrell (PA) brought a putative nationwide class action against Unilever (Dove), alleging Dove products labeled "hypoallergenic" and "tear-free" are misleading because they contain known skin sensitizers and eye irritants.
- Plaintiffs allege they relied on those labels, overpaid or would not have purchased the products, and seek damages and injunctive relief.
- Unilever moved to dismiss under Fed. R. Civ. P. 12(b)(1), (b)(2), and (b)(6) for lack of standing, lack of personal jurisdiction (as to Torres and Harrell), and failure to state claims.
- The complaint cites UN GHS and American Contact Dermatitis Society classifications and lists ingredients alleged to be allergens/irritants; plaintiffs pleaded concentrations for only one ingredient in one product.
- The Court dismissed plaintiffs’ claims in large part, granting leave to amend with directions on what a viable amended complaint must allege.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for money damages | Plaintiffs paid a premium or would not have purchased Dove products if labels were truthful | No concrete injury: plaintiffs got what they paid for and did not allege physical harm | Standing to seek monetary relief exists (economic injury/premium theory accepted at pleading stage) |
| Standing for injunctive relief | Plaintiffs want reformulation and therefore may purchase again | Past purchasers lack likelihood of future harm; no imminent threat | No standing for injunctive relief under Berni; injunctive claims dismissed |
| Personal jurisdiction over Unilever for Torres & Harrell (out‑of‑state plaintiffs) | Pendent personal jurisdiction should allow adjudication because Unilever markets nationwide and court has jurisdiction over Wiggins’ NY claims | Torres and Harrell’s claims lack connection to NY; pendent personal jurisdiction does not extend to unrelated out‑of‑state claims after Bristol‑Myers | Torres’ and Harrell’s CA and PA claims dismissed for lack of personal jurisdiction |
| Sufficiency of NY GBL (§§349/350) fraud/deception claims | Labels are misleading because products contain classified skin sensitizers/eye irritants in amounts that would cause reactions in a significant number of people | Plaintiffs plead only presence of ingredients, not that in‑use concentrations cause widespread harm; conclusory, speculative allegations | GBL claims dismissed for failure to plead that formulations/concentrations render "hypoallergenic" or "tear-free" false or misleading; dismissal with leave to amend |
| Breach of express warranty (Wiggins) | Complaint and amended complaint gave Unilever notice (filed suit) | Plaintiff failed to plead pre‑suit notice within a reasonable time after discovery as required by NY UCC §2‑607 | Breach of warranty dismissed for failure to plead timely notice |
| Unjust enrichment (Wiggins) | Plead in the alternative; longer limitations period makes claim viable | Claim duplicates other causes of action and seeks same relief | Unjust enrichment dismissed as duplicative of other claims |
Key Cases Cited
- Spokeo, Inc. v. Robins, 578 U.S. 330 (U.S.) (Article III standing requires concrete and particularized injury)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S.) (standing elements and injury‑in‑fact standard)
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (U.S.) (economic harms are cognizable Article III injuries)
- Berni v. Barilla S.p.A., 964 F.3d 141 (2d Cir.) (past purchasers generally lack standing for injunctive relief)
- Bristol‑Myers Squibb Co. v. Superior Court, 582 U.S. 255 (U.S.) (specific jurisdiction requires connection between forum and the claims)
- Daimler AG v. Bauman, 571 U.S. 117 (U.S.) (general jurisdiction requires defendant be essentially at home in forum)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S.) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S.) (pleading standard and requirement to plead factual matter supporting plausible claim)
- Almay v. Califano, 569 F.2d 674 (D.C. Cir.) (agency attempts to regulate "hypoallergenic" labeling and agency limitations)