MEMORANDUM & ORDER
Plaintiffs Jeremy Greene and Cetaria Wilkerson (the “Greene Plaintiffs”) commenced a putative class action on behalf of themselves and all others similarly situated against Defendant Gerber Products Co., doing business as Nestlé Nutrition^ Nestlé Infant Nutrition or Nestlé Nutrition North America on March 8, 2016. (Greene Compl., Docket Entry No. 1.) Several months later, on January 6, 2017, Plaintiff Wendy Manemeit commenced a nearly identical putative class action on behalf of herself and all others similarly situated, and against the same Defendant, Gerber Products Co. (Manemeit Compl., Docket Entry No. 1.)
Defendant moves to dismiss or stay the Greene action, only, pursuant tó the primary jurisdiction doctrine. Defendant also moves to dismiss Plaintiffs’ claims for in-junctivé relief pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, strike the nationwide class allegations and dismiss the Greene Complaint and the Ma-nemeit Complaint pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure.
I. Background
The facts alleged in the Greene Complaint and Manemeit Complaint are’ assumed to be true for the purpose of this motion.
a. Defendant’s applications to FDA
Since at least 2011, Defendant has manufactured, distributed and sold the Infant Formula, ahd has advertised the Infant Formula through- television, print media, product labeling and- on the Internet. (Greene Compl. ¶ 32.) The Infant Formula contains partially hydrolyzed whey protein, which is the ingredient that is purportedly responsible for the Infant Formula’s ability to reduce the risk of developing allergies. (Id. ¶¶ 5,8-9.)
In June of 2005, Defendant petitioned the FDA for approval of a qualified health claim
In May of 2009, Defendant again petitioned the FDA to approve a qualified health claim, stating:
emerging clinical research shows that, in healthy infants with family history of allergy, feeding a 100% Whey-Protein Partially Hydrolyzed infant formula instead of a formula containing intact cow’s milk proteins may reduce the risk of developing the most common allergic disease of infancy — atopic dermatitis— throughout the 1st year of life and up to 3 years of age.
(Id. ¶ 42.) The FDA determined that this claim mischaracterized the scientific evidence and was therefore misleading. (Id. ¶ 48.) The FDA instead proposed four alternative qualified health claims, over which it would consider exercising its enforcement discretion not to challenge the qualified health claim.
b. The alleged false and misleading representations
Plaintiffs allege that, “since at least 2011,” Defendant has marketed and advertised the Infant Formula using false and misleading representations. (Id. ¶ 55.) Plaintiffs allege six examples of the allegedly false and misleading representations: a statement on the seal of the Infant Formula that it is the “1st & only routine formula to reduce the risk of developing allergies,” (id. ¶ 56 (capitalization omitted); Ex. C, annexed to Compl.); a statement on
The Gerber Generation says “I love Mommy’s eyes, not her allergies.”
If you have allergies in your family, breastfeeding your baby can help reduce their risk. And, if you decide to introduce formula, research shows the formula you first provide your baby may make a difference. In the case of Gerber® Good Start® Gentle Formula, it’s the Comfort Proteins® Advantage that is easy to digest and may also deliver protective benefits.
(Compl. ¶ 61; Ex. F, annexed to Compl.); and two additional print advertisements stating that it is the “the first and only infant formula that meets the criteria for a FDA Qualified Health Claim.” (Compl. ¶¶ 62-63; Ex. G, annexed to Compl.; Ex. H, annexed to Compl.)
According to Plaintiffs, these statements can be categorized as making two deceptive representations: (1) that the Infant Formula reduces the risk that infants will develop allergies, and (2) that the Infant Formula meets the criteria for an FDA qualified health claim for atopic dermatitis. As to the representation that the Infant Formula “reduce[s] the risk of [infants] developing allergies,” Plaintiffs allege that it is false because the, FDA rejected this claim in May 2006, and the scientific evidence demonstrates that this claim is false. (Compl. ¶¶ 56, 60.) In support of this argument, Plaintiffs allege that several scientific studies have concluded that partially hydrolyzed whey protein' does not lower the risk that infants will develop allergies. {Id. ¶¶ 46-52.) Plaintiffs cite to a June of 2011 study by Adrian Lowe, Ph.D., University of Melbourne and Melbourne Royal Children’s Hospital (“the Lowe Study”), which concluded that “[t]here was no evidence that introducing pHWF [(partially hydrolyzed whey formula)] at the cessation of breast-feeding reduced the risk of allergic manifestations, including eczema, asthma, and allergic rhinitis, in [a] study of high-risk infants.” {Id. ¶ 47 (alterations in original) (quoting Adrian J. Lowe, Effect of a Partially Hydrolyzed Whey Infant Formula at Weaning on Risk of Allergic Disease in High-Risk Children: A Randomized Controlled Trial, 128 J. Allergy & Clinical Immunology 2, 360-65 (2011)).)
As to the representation that the Infant Formula meets the criteria for an FDA qualified health claim for atopic dermatitis, Plaintiffs allege that this representation is deceptive because it “implies that the FDA fully endorsed Defendant’s atopic-dermati-tis claims,-despite the fact that the FDA’s endorsement was strictly reserved to claims indicating that there was ‘little’ or ‘very little’ evidence supporting the link between Good Start and. atopic dermatitis.” {Id. ¶ 57.) In addition, by not including the language of one of the four qualified health claims and by using the FDA term of art “qualified health claim” to suggest that the .Infant Formula was endorsed by the FDA for a particular purpose, Defendant “falsely or misleadingly implied that Good Start would unqualifiedly reduce the risk of atopic determatitis.” {Id. ¶¶ 57-58.)
c. FDA warning letter
On October 31, 2014, the FDA sent a warning letter to Defendant’s President and CEO “outlining various false and mis
d. Litigation involving Defendant
On October 29, 2014, the Federal Trade Commission (the “FTC”) filed a lawsuit against Defendant in the United States District Court for the District of New Jersey, alleging that the Product’s labeling and advertising' are false and deceptive. (the “FTC. Litigation”). (Compl. ¶ 66.); Fed. Trade Comm’n v. Gerber Prods. Co., No. 14-CV-6771,
Since the. FTC filed its action against Defendant, four- other cases regarding the Infant Formula have been filed against Defendant, (Greene Pis. Mem, of Law in Opp’n to Def. Mot. (“Pls. Opp’n”) 5-6, Docket Entry No. 24; Def. Mem. 1); see also Hasemann v. Gerber Prods. Co., No. 15-CV-2995,
e. Plaintiffs’ purchases
Plaintiffs allege that they reviewed the representations on the label of the Infant Formula and on Defendant’s website stating that the Infant Formula reduces the risk that infants will develop allergies and that the FDA has endorsed Defendant’s qualified health claim. (Compl.’¶¶ 72-74; Manemeit Compl. ¶¶ 72-25.) Based on these representations, Plaintiffs purchased the Infant Formula in “canisters” for $18 in Ohio; for between $16 and $22 in North Carolina; and for $25 in New York. (Compl. ¶¶ 72-74; Manemeit Compl. ¶ 72.) According to Plaintiffs, Defendant “inflated” the price of the Infant Formula by approximately forty-one percent based on its false and misleading representations. (Compl. ¶ 77; Manemeit Compl. ¶ 77.) Plaintiffs assert that they would not have paid “these inflated prices” had they known that the Infant Formula does not reduce the risk that irifants will develop allergies or that the FDA did not endorse Defendant’s qualified health claim. (Compl. ¶ 78; Manemeit Compl. ¶ 79.)
f. Proposed classes
’ Plaintiff Greene asserts his claims on behalf of a class of persons who purchased the ’Infant Formula in the state of Ohio from' Máy 15, 2011 to the present (the “Ohio Class”). (Compl. ¶ 79.) Plaintiff Wilkerson .asserts’ her claims on behalf of a class of persons who purchased the Infant Formula in the state of North Carolina from May 15, 2011 to the present (the “North Carolina Cíass”). {Id, ¶80.) Plaintiff Manemeit asserts her claims on behalf of a class , of persons who purchased the Infant Formula in the state of New York from May. Í5, 2011 to the present. (Mane-meit Compl. ¶80.) Plaintiffs collectively bring claims on behalf of all persons who purchased the Infant Formula in the United States from May 15,2011 to the present (the “Nationwide Class”). {Id. ¶ 81; Compl. ¶ 81.)
II. Discussion
a. Standards of review
i. Rule 12(b)(1)
A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the court “lacks the statutory or constitutional power, to adjudicate it.” Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.A.R.L.,
ii. Rule 12(b)(6)
In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must construe the complaint liberally, “accepting all factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiffs favor.” Concord Assocs., L.P. v. Entm’t Prop. Trust,
iii. Rule 12(f)
Rule 12(f) of the Federal Rules of Civil Procedure provides that a court may “strike from a pleading ... any redundant, immaterial, impertinent, or scandalous matter” sua sponte or “on motion made by a party.” Fed. R. Civ. P. 12(f); see also Reynolds v. Lifewatch, Inc.,
“Motions to strike under Rule 12(f) are rarely successful.” Reynolds,
b. Primary jurisdiction doctrine
Defendant moves pursuant to,the primary jurisdiction doctrine to either dismiss or stay the Greene action pending resolution of the FTC Litigation. ,(Def. Mem. 2.) Defendant argues that the- FDA has promulgated “a complex and comprehensive regulatory scheme governing mis-brand, and food and beverage labeling in particular,” -and that the FTC and FDA are both in a “far better position” to determine whether Defendant’s representations are “improper.” (Id. at 18,19.) The Greene Plaintiffs argue that the primary jurisdiction doctrine is inapplicable here because the FTC Litigation does not involve technical issues within the agency’s specialty and there is little risk that the FDA will issue guidance that conflicts with the current case. (Pis. Opp’n 20.) The Greene Plaintiffs also argue that the Court already rejected the primary-jurisdiction argument in its earlier decision in Hasemann,
The Court decided the applicability of the primary jurisdiction doctrine to identical facts in Hasemann. In that case, as here, Defendant argued that the action should be dismissed or stayed pending the outcome, of the FTC Litigation because the FTC and the FDA were in a “far better position” to determine whether Defendant’s misrepresentations were “improper.” Hasemann,
c. Standing to seek injunctive relief
Defendant argues that Plaintiffs are not entitled to injunctive relief because
As the Court explained in Hasem-ann, a plaintiff seeking injunctive relief “must show the three familiar elements of standing: injury in fact, causation, and re-dressability.” Cacchillo v. Insmed, Inc.,
A plaintiff “cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he .,. will be injured in the future.” Shain,
Although ,the Supreme Court has “adhered to the rule that a party ‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties,’ ” this, rule is not absolute, and “there may be circumstances where it is necessary to grant a third party standing to assert the rights of another " Kowalski v. Tesmer,
The Supreme Court has “been quite forgiving with these, criteria in certain circumstances,” as in the context of the First Amendment or in allowing parties to litigate the rights of third parties “when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third .parties’ rights.” Kowalski, 543 U.S. at. 130,
“Beyond these examples,” however, the Supreme Court “ha[s] not looked favorably upon third-party standing.” Kowalski,
' Here, Plaintiffs cannot assert third-party standing “on behalf of individuals who are not yet aware that Gerber’s advertisements are false,” (Manemeit Pl. Mem. in Opp’n to Manemeit Def. Mot. (“Manemeit Opp’n”) 23, Docket Entry No. 21). The Court acknowledges the persuasive value of Plaintiffs’ argument that, without third-party standing, consumers could not enjoin false or deceptive advertising because (1) if they were unaware of the falsity of the advertising and therefore at risk of future injury, they would not bring suit, and (2) once they become aware that a product is falsely or deceptively advertised, they cannot plausibly allege that they would repurchase the product. (Manemeit Opp’n Mem. 24.)
However, the relationship between a class representative and would-be consumers “is not the type of close relationship courts have recognized as creating a ‘prudential exception’ to the third-party standing rules.” See W.R. Huff,
In general, the Supreme Court’s concern appears to be that “where a hindrance impedes the assertion' of a claim, the right likely will not be asserted — anc! thus the relevant law will not bé enforced — unless the Court recognizes third-party standing.” Miller,
No constitutional rights are at risk here, Plaintiffs are adequately able to vindicate their own rights by seeking damages, and there is no risk that “the relevant law will not be enforced” if Plaintiffs are not able to seek prospective injunctive relief on behalf of a nebulous class of would-be Gerber consumers. See Miller,
Moreover, Plaintiffs have not demonstrated that the unidentified class of would-be consumers would likely be harmed. Á speculative, outside possibility of harm is insufficient to confer standing even on the group that Plaintiffs contend would be affected by Defendant’s ongoing deceptive advertising. See. Nicosia,
i. OCSPA
In count one of the Greene Complaint, the Greene Plaintiffs allege that Defendant’s false and misleading advertising constituted an “unfair or deceptive act or practice” under the OCSPA because Defendant falsely claimed that the Infant Formula reduced the risk of an infant developing certain allergies, which ascribed to the Infant Formula performance characteristics and benefits that it did not possess, and because Defendant misleadingly suggested that the FDA had unquali-fiedly approved of Defendant’s atopic-der-matitis-claim, which ascribed to the Infant Formula a particular standard, quality or grade that it did not possess. (Compl. ¶ 97.)
Defendant argues that the Court should dismiss the Greene Plaintiffs’ class action claim under the OCSPA because the Greene Plaintiffs did not allege, as the OCSPA requires, “that [Defendant] had prior notice that its conduct was ‘deceptive or unconscionable.’ ” (Def. Mem, 12.) The Greene Plaintiffs argue that the OCSPA’s notice requirements are preempted by Rule 23 of the Federal Rules of Civil Procedure, and that, in any event, the Greene Plaintiffs have met the OCSPA’s requirements. (Pis, Opp’n 10-12.) The Greene Plaintiffs alternatively argue that Defendant was on notice that the OCSPA prohibits false or misleading allergy claims because the state attorney general, pursuant to her authority under the OCSPA, has promulgated rules that prohibit individuals or companies from making' “any representations” that lack “a reasonable basis in fact” and has made publicly available several consent decrees with companies that made unsubstantiated health claims. (Id. at 12.)
The OCSPA prohibits suppliers from engaging in either unfair or deceptive consumer sales practices or unconscionable acts or practices as set forth in the Ohio Revised Code (“ORC”) sections 1345.02 and 1345.03. As relevant here, the OCSPA defines as “deceptive” any act or practice that represents “[t]hat the subject of a consumer transaction has sponsorship, approval, performance characteristics, accessories, uses or benefit? that it does not have,” ORC § 1345.02(B)(1); “[t]hat the subject of a consumer transaction is of a particular standard, quality, grade, style, prescription, or model, if it is not,” id, § 1345.02(B)(2); or “[t]hat the supplier has a sponsorship, approval, or affiliation that the supplier does not have,” id, § 1345.02(B)(9). The OCSPA states that in determining whether an act or practice is “unconscionable,” a court should take into account several factors, including whether the supplier “knew at the time the consumer transaction was entered into” either that “the price was substantially in excess of the price at which similar property or services were readily obtainable in similar consumer transactions by like consumers,” id. § 1345.03(B)(2), or that the consumer would be unable “to receive a substantial benefit from the subject of the consumer transaction,” id. § 13.45.03(B)(3), In general, the OCSPA “defines ‘unfair or deceptive consumer sales practices’ as those that mislead consumers about the nature of the product they are receiving, while ‘unconscionable acts or practices’ relate to a supplier manipulating a consumer’s understanding of the nature of the transaction at issue.” McKinney v. Bayer Corp.,
Although the OCSPA permits both individual and class action claims, see ORC § 1345.09, a consumer can assert a class action claim under the OCSPA “only if the defendant’s alleged violation of the
The Court considers whether Rule 23 preempts the OCSPA notice requirement and, if not, whether the Greene Plaintiffs have met the OCSPA notice requirement.
1. Rule 23 and the OCSPA
The Greene Plaintiffs argue that the Supreme Court’s decision in Shady Grove Orthopedic Ass’n, P.A. v. Allstate Ins. Co.,
In Shady Grove, the Supreme Court addressed whether Rule 23, which governs class actions, conflicted with New York Civil Practice Law section 901(b) (“section 901(b)”), which precludes • class actions seeking penalties or statutory minimum damages. Shady Grove,
The Greene - Plaintiffs argue that the restrictions on class actions under section 1345.09(B) of the OCSPA: are not applicable in federal court after Shady Grove because the restrictions conflict with Rule 23. In particular, the Greene Plaintiffs contend that the plurality opinion controls, and therefore Shady Grove stands for the proposition that any state law restricting class actions in federal court is invalid. (Pis. Opp’n 10-11.) As explained below, the Court disagrees.
“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” United States v. Alcan Aluminum Corp.,
The Second Circuit has not directly addressed whether Justice Stevens’ opinion controls. See Retained Realty, Inc. v. McCabe,
Although the Greene Plaintiffs do not address whether the class action notice prerequisite in the OCSPA is “intertwined” with the substantive right afforded by the statute, “every court in Ohio to address this issue has held that section 1345.09(B) is substantive in nature and therefore not preempted by Rule 23.” Leonard,
The Court follows the reasoning employed by those courts and concludes that the Shady Grove decision does not require Rule 23 to displace the OCSPA’s class action notice requirement.
2. The Greene Plaintiffs have not satisfied the notice requirement
The Greene Plaintiffs argue that because the Ohio Attorney General has promulgated rules that prohibit companies from making “any representations” that lack “a reasonable basis in fact,” Defendant was “on notice that making false or misleading allergy claims — and exaggerating FDA support for these claims — would be considered deceptive in Ohio.” (Pls.. Opp’n 12-13 (citing Ohio Adm. Code 109:4-3-10).) In addition, the Greene Plaintiffs argue that Defendant was on notice because of consent decrees entered into by the Ohio Attorney General with parties that allegedly made false health claims, which consent decrees were on the Attorney General’s public website. (Id.) Defendant argues that the challenged statements relating to the Infant Formula “actually have a reasonable basis in fact because they are substantiated by numerous scientific studies,” and that consent judgments by the Ohio Attorney General do not constitute sufficient notice under the OCSPA. (Def. Mem. 4-5.)
The Greene Plaintiffs first rely on Ohio Administrative Code 109:4-3-10, which states that it is a deceptive act or practice for a supplier to make any representations in the absence of a reasonable basis in fact. (Pls. Opp’n 12 (citing Ohio Adm. Code 109:4-3-10).) In interpreting this rule, the Ohio Supreme Court has held that the rule “is insufficient to provide prior notice under [ORC § 1345.09(B)] because it does not refer to any particular act or practice.” Volbers-Klarich,
The Greene Plaintiffs next rely on various consent decrees into which the Ohio Attorney General entered with parties that allegedly made false health claims. (Pls. Opp’n 12-13.) Plaintiffs rely on Charvat v. Telelytics, LLC, No. 05-AP-1279,
In Charvat, the court explained that a consent judgment is not a judgment on the merits, but rather a reflection of a settlement between the parties, and it therefore lacks precedential value. Charvat,
Since Charvat was decided, however, several federal courts in Ohio have questioned its ruling. These courts reason that the OCSPA. requires the Attorney General to make available for publie. inspection “all judgments, including supporting opinions, by courts of this state that determine the rights of the pairies .. •• determining that specific acts or practices violate” the OCS-PA, and, reading that broad command together with ORC section 1345.09, “it is clear that the reference to a court’s ‘determination’ in [section] 1345.09(B) is a reference to a court’s final determination, ie. á judgment with supporting reasoning.” Pattie v. Coach, Inc.,
. The Court is not persuaded that consent judgments reflect a court’s “determination” that an act or practice violated the OCSPA. Indeed, as the Charvat court noted, “a consent judgment typically is not a
ii. ODTPA
In count two of the Complaint, the Greene Plaintiffs allege that Defendant’s “false or misleading advertising .,. constitutes a deceptive trade practice under [the ODTPA]” because Defendant “represented that goods have characteristics, ingredients, uses, benefits or quantities that they do not have” and “represented that goods have sponsorship, approval, or characteristics that they do not have.” (Compl. ¶ 107 (citing ORC § 4165.02 (alterations omitted)).) Defendant argues that “[t]he vast majority of Ohio district courts'and lower state courts hold that ‘the ODTPA is not available to consumers.’” (Def. Mem. 14 (quoting Phillips,
The ODTPA authorizes actions' by .a “person who is likely to be damaged by a person who commits .a deceptive trade practice” or a “person who is injured by a person who commits a 'deceptive trade practice.” ORC § 4165.03(A)(l)-(2), A “person” is defined under the .ODTPA to include “an individual, corporation, government, governmental subdivision or agency” or “any other legal or commercial entity.” Id § 4165.01(D).
“The Ohio Supreme Court has.not yet addressed whether a consumer may pursue a claim under the ODTPA,' and there is a split' of authority between the Northern and Southern Districts of Ohio,, and even within the Southern District, on the issue.” Terlesky v. Fifth Dimension, Inc., No. 15-CV-374,
■The Greene Plaintiffs cite two cases that hold otherwise,, and they are the only two the Court has located that hold that the plain language of the ODTPA is not so restrictive that it precludes a consumer from bringing'an action under the statute. See Schumacher v. State Auto. Mut. Ins. Co.,
In Dawson, the Ohio Court of Appeals held that consumers do not have standing to raise ODTPA claims because the ODT-PA and the Lanham Act are “substantially similar” and because all federal courts of appeals to have considered the issue have held that consumers do not have standing to sue under the Lanham Act. See Dawson,
The Greene Plaintiffs have failed to present persuasive evidence that the Ohio Supreme Court would consider this issue differently than the Ohio Court of Appeals, particularly in view of several Ohio Supreme Court decisions that have recognized the substantial similarity between the ODTPA and the Lanham Act. See, e.g., Chandler & Assoc. v. Am.’s Healthcare Alliance,
e. North Carolina statutory claim
In count three of the Complaint, the Greene Plaintiffs allege that Defendant’s health claims regarding the Infant Formula “had the tendency and capacity to mislead” and constituted deceptive acts or practices and unfair methods of competition under the NCDTPA. (Compl. ¶¶ 113— 14 (citing N.C. Gen. Stat. Ann. § 75-1.1).)
Defendant argues that the Greene Plaintiffs’ NCDTPA claim is not pled with particularity and should be dismissed pursuant to Rule 9(b) of the Federal Rules of Civil procedure because the Greene Plaintiffs “vaguely allege[ ] that [Plaintiff Wilkerson] purchased [the Infant Formula] after” reviewing a number of advertisements but “makes no allegation that [the annexed advertisement] was material to her decision to purchase” the Infant Formula. (Def. Mem. 15.) The Greene Plaintiffs argue -that the Rule 9(b) pleading standard does not apply to NCDTPA claims, but
The parties identify divergent' authority on whether NCDTPA claims
“Rule 9(b) requires that ‘[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.’” United States ex rel. Ladas v. Exelis, Inc.,
The Greene Plaintiffs specify in the Complaint and' attach to the Complaint examples of the representations by Defendant that the Greene Plaintiffs allege are false and misleading, including the representations that the Infant Formula is the “1st & only routine formula to reduce the risk of developing allergies” and that the Infant Formula is “the first and only formula brand made from 100% whey protein hydrolyzed, and that meets the criteria for a[n] FDA Qualified Health Claim for atopic dermatitis.” (Compl. ¶¶ 56-61 (capitalization omitted); Exs. A-F.) The Greene Plaintiffs allege that these representations were located in several places, including on a sticker placed on the Infant Formula, on the packaging in which the Infant Formula was sold, in a television commercial dated April 9, 2012, and in a magazine advertisement dated August 5, 2013. (Compl. ¶¶ 60, 63.) The Greene Plaintiffs also allege that the representations are false and misleading because the Infant Formula does not reduce the risk that infants will develop allergies and because Defendant failed to qualify its health claim regarding the Infant Formula’s ability to reduce the risk of infants developing atopic dermatitis in accordance with the FDA’s proposals. (Id. ¶¶ 56-64.) The Greene Plaintiffs further allege that they viewed and relied on these representations before purchasing the Infant Formula. (Id. ¶¶ 72-74.)
Based on these allegations, the Greene Plaintiffs have identified with particularity the allegedly deceptive, representations, the speaker, what was • stated,' when it was stated" and where the statements were made.. The Greene Plaintiffs have also explained why they allege that the statements are deceptive and that the statements were material. (See id.) These allegations satisfy Rule 9(b). See In re Ford Fusion & C-Max Fuel Econ. Litig., No. 13-MD-2450,
The Court therefore finds that the Greene Plaintiffs have identified the representations -that they allege are false and
f. New York statutory claims
In counts one and two of the Manemeit Complaint, Plaintiff Manemeit alleges that Defendant violated sections 349 and 350 of the GBL by engaging in “consumer-oriented conduct” that falsely and misleadingly advertised the allergenic benefits of the Infant Formula. (Manemeit Compl. ¶¶ 93-108.)
Defendant argues that the GBL claims should be dismissed because Plaintiff failed to plead an injury from the alleged misrepresentation and because Plaintiff “freely admits that [Defendant’s] use of the [qualified health claim] in its marketing materials was expressly permitted by FDA,” so the safe harbor provisions of the GBL apply. (Manemeit Def. Mem. 2.) Plaintiff argues that she alleges, under a price-premium theory of injury, that she would not have paid as much as she did for the Infant Formula had she known the allergy claims weré false, and that the GBL’s safe harbor provisions do. not apply here. (Manemeit Opp’n 8-9.)
The Court first considers whether Plaintiff ¡has sufficiently alleged an injury under GBL sections 349 and 350 and then considers whether the safe harbor provision under GBL section 349 provides a defense to Plaintiffs claims.
i. GBL sections 349 and 350
GBL section 349 prohibits “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus, Law § 349. GBL section 350 prohibits “[f]alse advertising in the conduct of any business, trade or. commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus. Law § 350. To assert a claim under either section, “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading, and that (3) [the] plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Orlander v. Staples, Inc.,
Claims under GBL sections 349 and 350 are not subject to the pleading-with-particularity requirements of Rule 9(b). Schwartzco Enters. LLC v. TMH Mgmt., LLC,
“An actual injury claim under [s]ection 849 typically requires a plaintiff to ‘allege that, on account of a materially misleading practice, she purchased a product and did not receive the full value of her purchase.’” Izquierdo v. Mondelez Int’l, Inc., No. 16-CV-4697,
Here, Plaintiff alleges that if she had known Defendant’s allergy claims were false, she would not have paid as much as she did for the Infant Formula, and further states that parents value a formula’s ability to protect their children from developing allergies. (Manemeit Compl. ¶¶ 13, 53, 74-75, 100-01, 106, 135, 140.) Plaintiff also alleges that another formula named “Parent’s Choice,” which did not make allergy claims, is priced at a forty-one percent discount to the Infant Formula, and that Defendant suggested that Defendant’s inability to make the allergy claims negatively affected sales. (Id. ¶¶ 77-78.) Plaintiff further alleges that she did not receive the benefit of her bargain because she paid for a benefit — the reduced risk of allergies — that the Infant Formula did not provide. (Id.) These allegations are sufficient to state an injury under GBL sections 349 and 350 because they “claim that [ ] [PJlaintiff paid a premium for a product based on [Defendant’s] inaccurate representations.” See Ackerman,
Relying on Izquierdo,
To the extent that Izquierdo merely holds that plaintiffs cannot redress an injury under GBL sections 349 or 350 where they do not “allege[] that they paid a higher price for the [product] than they otherwise would have, absent deceptive acts,” see id, the Court finds that Plaintiffs’ allegations satisfy Izquierdo because she has alleged that she paid a higher price for the Infant Formula than she would have paid absent the allergy claims. (Manemeit Compl. ¶ 77.) However, to the extent that Izquierdo holds, as Defendant suggests, that Plaintiff must identify a precisely comparable product in order to allege a GBL section 349 or 350 claim under a price premium theory, Izquierdo contradicts the weight of the law in this Circuit. Courts routinely allow complaints that lack allegations of both cheaper and exactly comparable products to survive motions to dismiss. See Goldemberg v. Johnson & Johnson Consumer Cos., Inc.,
In addition, to the extent that Defendant asks the Court to assess the actual comparability of the Parent’s Choice formula or determine-whether other characteristics of the Infant Formula justified its higher price, these are factual determinations that cannot be resolved on a motion to dismiss. See Kardovich v. Pfizer, Inc.,
ii. Safe harbor provisions
Defendant also argues that the qualified health claims on the Infant For
GBL section 349(d) states:
In any such action it'shall be a complete defense that the act or practice is, or if in interstate commerce would be, subject to and complies with the rules and regulations of, and the statutes administered by, the federal trade commission or any official department, division, commission or agency of the United States as such rules, regulations or statutes are interpreted by the federal trade commission or such department, division, commission or agency or the federal courts,
N.Y. Gen. Bus. Law § 349(d). GBL section 350-d states:
In any such action it shall be a complete defense that the advertisement is subject to.and complies with the rules and regulations of, and the statutes administered by the Federal Trade Commission or any official department} division, commission or agency of the state of New York.
N.Y. Gen. Bus. Law. § 350-d.
Both safe harbor provisions require Defendant to identify a “rule" or “regulation” with which it has complied. However, the only rule or regulation Defendant identifies is the FDA 2011 Letter, which applies only to Defendant’s labels and not to its advertisements. (See FDA 2011 Letter at 2.) Furthermore, Defendant has not explained why or how the FDA-2011 Letter qualifies as a “rule” or “regulation” under the safe harbor provisions, and, absent any support, the- Court is not convinced that it does. See, e.g., Carias v. Monsanto Co., No 15-CV-3677,
g. Common law claims
In counts four through seven of the Greene Complaint and counts . three through six of the Manemeit Complaint, Plaintiffs bring claims for fraudulent concealment, intentional misrepresentation, negligent misrepresentation and unjust enrichment. (Greene Compl. ¶¶ 118-49; Ma-nemeit Compl. ¶¶ 109-40.) Defendant argues that Plaintiffs have failed to allege at least one element of each common law claim, but does not otherwise argue that Plaintiffs’ common law claims are insufficient.
i. Fraudulent concealment
Defendant argues that Plaintiffs have not alleged a fiduciary or special-relationship between the parties that would support a claim for fraudulent concealment.
“The elements of fraudulent concealment under New York law are: a relationship between the contracting parties that creates a duty to disclose, knowledge of the material facts by the party bound fo disclose, scienter, reliance and damage.” Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc.,
“A duty to disclose arises in one of three circumstances: where the parties are in a fiduciary relationship; under the ‘special facts doctrine,’ where ‘one party -possesses superior knowledge, not readily available to the other,- and knows that the other is acting on the basis of mistaken knowledge’; or where a party has made a partial or ambiguous statement, whose full meaning will only be made clear after complete disclosure.” Aetna,
Thus, with respect to the duty to disclose, “New York recognizes a cause of action to recover damages for fraud based on concealment, where the party to be charged has superior knowledge or means of knowledge, such that the transaction without disclosure is rendered inherently unfair.” De Sole,
Here, Plaintiffs have pled sufficient facts to support either the theory that Defén-dant made a “partial or ambiguous statement” or that Defendant “possesse[d] superior knowledge, not readily available to [Plaintiffs], and [knew] that [Plaintiffs were] acting on the basis of mistaken knowledge.” See Brass,
ii. Intentional misrepresentation
Defendant argues that Plaintiffs have not alleged specific facts to give rise to an inference of fraudulent intent, as is required to state a claim of intentional misrepresentation in New York. (Def. Mem. 17.) Plaintiffs argue that they have alleged fraudulent intent by alleging that Defendant sponsored and was aware of the Lowe Study, “was aware that there was little support for its atopic-dermatitis claims” and “was aware of the FDA’s limit
In a claim for intentional or fraudulent misrepresentation in New York, “a plaintiff must allege ‘a misrepresentation or a material omission of fact which was false and known to be false by [the] defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.’” Mandarin Trading Ltd. v. Wildenstein,
A plaintiff may plausibly plead scienter “through allegations of a motive to deceive and access to accurate information.” Aetna,
Here, the Court does not consider whether Plaintiffs have adequately pled facts to support an inference of motive and opportunity because Plaintiffs have adequately pled facts to support an inference of “conscious misbehavior or recklessness.” See Gabriele,
iii. Negligent misrepresentation
As with Plaintiffs’ claim of fraudulent concealment, Defendant' argues that Plaintiffs’ negligent misrepresentation claim fails because Plaintiffs have not alleged a fiduciary or special relationship between the parties. (Def. Mem. 16.) Plaintiffs argue that they have pled a special relationship because Defendant had information that undermined the scientific support for its representations and knew consumers would rely bn those representations in purchasing the Infant Formula. (Pls. Opp’n 17-18.)
“A negligent misrepresentation is actionable under New York law where the defendant has been careless ‘in imparting words upon which others were expected to rely and upon which they did-or failed to act to their'damage,’-and whether the author of the statement has ‘some relationship or duty ... to act with care’ vis-h-vis the party at whom the statement is directed." Aetna,
It is well settled that [a] claim for negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information.
Abu-Dhabi Commercial Bank v. Morgan Stanley & Co. Inc.,
A duty of care may ar|se when “there is actual privity of contract between the parties or a relationship so close as to approach that of privity.” Aetna,
“Because ‘casual’ statements and contacts are prevalent in business, liability in the commercial context is ‘imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified.’ ” Eternity Glob. Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y.,
Here, Plaintiffs have not alleged a special relationship between themselves and
First, Plaintiffs sufficiently allege that Defendant’s health claims, as advertised, were rejected by the FDA and that Defendant was in á unique position to know that. (Id. ¶¶ 6, 10, 40-45, 61.) Plaintiffs also sufficiently allege that Defendant was aware of at least one major study that “conclusively refuted” Defendant’s health claim, and that Defendant in fact sponsored that study and provided it with staff and funding. (Id. ¶¶ 46-52.) These are not merely “knowledge of the particulars of the company’s business,” which would “not constitute the type of ‘specialized knowledge’ that is required in order to impose a duty of care.” See Trainum v. Rockwell Collins, Inc., No. 16-CV-7005,
Furthermore, Plaintiffs have sufficiently alleged that Defendant knew that Plaintiffs would rely on those representations, as Defendant attempted to obtain FDA approval for the representations and placed them prominently on advertisements and on the Infant Formula itself. (Compl. ¶¶ 42, 45, 55-61.) Moreover, Plaintiffs have plausibly alleged that Defendant placed the advertisements in direct-to-consumer magazines, (see, id. ¶¶ 62-63), and that Plaintiffs viewed those advertisements and considered the purported allergenic benefits of the Infant Formula in deciding to purchase it, (id. ¶ 144). See Hughes,
The Court therefore concludes that although the parties engaged in a typical commercial transaction, Plaintiffs have pled facts sufficient to show that Defendant possessed special expertise and knowledge about the health claims on its Infant Formula advertisements and knew that Plaintiffs would rely on those claims. “Given that ¿ determination of whether a special relationship exists is essentially a factual inquiry, these allegations are sufficient to overcome a motion to dismiss.” Suez Equity,
iv. Unjust enrichment
Defendant argues ,that Plaintiffs have failed to show “circumstances where equity and good conscience require the [Defendant to make restitution,” as required to support a claim for unjust enrichment .under New York law, and that Plaintiffs’ unjust enrichment claim is dupli-cative of their statutory and common-law tort claims. (Def. Mem. 18 (citation and internal quotation marks omitted).); (Def. Reply 7.) Plaintiffs argue that they have pled a claim for unjust enrichment because Defendant was “unjustly enriched by [its] sales of [the Infant Formula] through the use of false advertising,” and that their unjust enrichment claim is not duplicative because it would “survive the dismissal of their other claims.” (Pls. Opp’n 16.)
“To prevail on a claim for unjust enrichment in New York, a plaintiff must establish (1) that the defendant bene-fitted; (2) at the plaintiffs expense; and (3) that equity and good conscience require restitution.” Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc.,
only in unusual situations when, though the defendant has not breached a contract nor committed a recognized tort, circumstances create an equitable obligation running from the defendant to the plaintiff. Typical cases are those in which the defendant, though guilty of no wrongdoing, has received money to which he or she is not entitled.
Id. (dismissing unjust' enrichment claim where it was based on same allegations as inverse takings claim grounded in trespass).
Plaintiffs have alleged violations of the NCDTPA, OCSPA and ODTPA, as well as several common-law torts; (Compl. ¶¶ 93-149.) .Plaintiffs’ unjust enrichment claim is based on the same allegations as those set forth in support of these other claims, and Plaintiffs have not shown how their unjust enrichment claim differs from their other claims. Plaintiffs’ brief footnote addressing the issue merely argues that “fraudulent intent and a ‘special relationship’ are not
It is not clear that Plaintiffs’ unjust enrichment claim would survive dismissal of their other common-law claims, and Plaintiffs’ arguments fail to" persuade the Court that the unjust enrichment claim is not duplicative of those claims. See Buonasera v. Honest Co., Inc.,
h. Pleading with particularity
Defendant argues that Plaintiffs have failed to' “allege any facts to- demonstrate falsity” and instead “simply conclude that the statements are false,” which is insufficient to state fraud-based clainis under Rule 9(b). (Def. Mem. 7-9.) Plaintiffs argue that “large portions of the Complaint are dedicated to describing the false and misleading nature' of [Defendant’s] advertisements,” and that the Court already considered and rejected Defendant’s argument as to falsity in Hasemann. (Pls. Opp’n 8.)
As the Court explained in Hasemann, Plaintiffs have sufficiently alleged the falsity of Defendant’s representation that the Infant Formula is the “1st & only routine formula to reduce the risk of developing, allergies,” and the misleading nature of Defendant’s representation that the FDA had endorsed its qualified health claim regarding atopic dermatitis. See Hasemann, 2016 WL '5477595, at *16. The Court declines to reconsider that holding here, where Plaintiffs’ claims are predicated on the same alleged conduct and where the allegations in both the Hasemann action and here, in Greene and Manemeit, are nearly identical. Accordingly, Plaintiffs have sufficiently alleged that Defendant’s assertion that the Infant Formula reduces the risk of infant allergies is false and that Defendant’s qualified health claim regarding atopic dermatitis is misleading,
i. Motion to strike class allegations
Defendant argues that the Court should strike the nationwide class allegations from the Complaint because “individual issues of fact-defeat commonality and predo
i. Commonality and predominance
At this stage of the proceeding, the Court declines to strike the nationwide class allegations on commonality and predominance grounds. Defendant argues that Plaintiffs’ common-law claims would require numerous individualized inquiries that preclude class certification. In particular, Defendant argues that “Plaintiffs! common law claims require a showing that Plaintiffs and the putative class relied on [Defendant’s] marketing statements regarding infant allergies and atopic dermatitis. By definition, reliance is an individualized factual inquiry.that, will require a series of mini-trials for each putative class member.” (Def. Mem. 23.)
It is possible that some of the putative class members did not rely on Defendant’s marketing statements, and it is conceivable that the class as currently drawn will have to be narrowed in order to be certified. See In re Grand Theft Auto Video Game Consumer Litig.,
Moreover, as courts in this Circuit have repeatedly held, “a determination of whether the Rule 23 requirements are met is more properly deferred to the class certification stage, when a more complete factual record .can aid the Court in making this determination.” Mazzola,
ii. Differences in state law
Defendant also argues that “[c]ourts routinely deny certification of a nationwide class when a trial would involve the application of the common law of the [fifty] states.” (Def. Mem. 24.) However, courts in the Second Circuit have recognized that “[w]hen a class action raises common issues of conduct that would establish liability under a number of states’ laws, it is possible for those common issues to predominate and for class certification to be an appropriate, mechanism for handling the dispute.” Reynolds,
To the extent that the laws of various states differ, those concerns may be “lessened where the states’ laws do not vary materially.” In re U.S. Foodservice Inc. Pricing Litig.,
Before discovery into the class, it is impossible for the Court to determine how many states’ laws are implicated in this action, how many of those laws vary, and how many variances are material to the factors the Court will consider in deciding whether to certify the class. Nor has De-. fendant yét established that the standards of liability in relevant states are sufficiently different that they would raise insurmountable case management issues or render class issues insufficiently predominant.
Because Defendant has not demonstrated that “it would be futile to allow [P]lain-tiffs to conduct discovery” or that “[P]lain-tiffs’ theory for class certification is simply foreclosed,” Calibuso,
III. Conclusion
For the foregoing reasons, the Court declines to dismiss or stay the Greene Complaint pursuant to the primary jurisdiction doctrine, grants Defendant’s motion’ to dismiss the Greene Plaintiffs’ claims under the OCSPA and ODTPA, and denies Defendant’s motion to dismiss the Greene Plaintiffs’ claims under the •NCDTPA. As to the Manemeit Complaint, the Court denies Defendant’s motion to dismiss the claims brought pursuant to sections 349 and 350 of the GBL. As to the Greene and Manemeit Complaints, the Court finds that Plaintiffs lack standing to seek injunctive, relief; grants Defendant’s motion to dismiss the unjust enrichment claims; denies Defendant’s motion to strike the nationwide class allegations; and denies Defendant’s motion to dismiss the fraudulent concealment, intentional
SO ORDERED.
Notes
.The Court refers to the complaint in Greene, 16-CV-1153, as the "Greene Complaint,” and to the complaint in Manemeit, 17-CV-93, as thé "Manemeit Complaint.” A separate class of plaintiffs from Wisconsin and Florida filed a nearly identical complaint against Defendant that is currently pending before this Court, is based on the same underlying facts and asserts similar claims under other state consumer protection laws. See Hasemann v. Gerber Prods. Co., No. 15-CV-2995,
. the Court refers to the Greene and Mane-meit Plaintiffs collectively as "Plaintiffs."
. (Def. Mot to Dismiss. (“Def. Mot.”), Docket Entry No. 22; Def. Mem. in Supp. of Def. Mot. ("Def. Mem.”), Docket Entry No, 23; Decl. of Geoffrey Castello in Supp. of Def. Mdt. ("Castello Deck”), Docket Entry No. 24; Def. Reply in Further Supp. of Def. Mot. ("Def. Reply”), Docket Entry No. 26; Mane-meit Def, Mot to-Dismiss ("Manemeit Def. Mot.”), Docket Entry No. 18; Mem. in Supp,
. Except as to the statutory claims in each, the Greene and Manemeit Complaints are • nearly identical, and the same facts are set forth in each. The Court cites to the Greene Complaint for ease of reference. ”
. The FDA can approve a “health claim” or a "qualified health claim" under certain circumstances, allowing companies to make certain health claims about their products in the labeling of said products. A “health claim” is "any claim made on the label or in labeling of a food ... that expressly or by implication ,.. characterizes the relationship of. any substance to a disease or health-related condition." (Greene Compl, ¶ 33 (quoting 21 C.F.R, § 101.14(a)(1)).) Before a health, claim can be used in labeling a product, the FDA must review and approve any such health claim. (Id. ¶ 36.) The-;FDA can approve a health claim if it determines that there is “significant scientific agreement" that the claim is supported by scientific evidence. (Id. ¶ 34.) "In the absence of ‘significant- scientific agreement’ [as to ⅛' health] claim, the FDA may nevertheless allow a company to make a 'qualified health claim’- if it is supported by less scientific evidence.” (Id. ¶ 35.) When the FDA permits a company to -make a qualified health claim, the FDA issues’“a letter Outlining the circumstances under which it intends to consider exercising its enforcement discretion not to challenge the qualified health claim." (Def. Mem. 4); see generally Fleminger, Inc. v. U.S. Dep't of Health & Human Seros.,
. The FDA proposed the following four alternative qualified health claims:
1. "Very little scientific evidence suggests that, for healthy infants who are not exclusively breastfed and who have a family history of allergy, feeding a 100% Whey-Protein Partially Hydrolyzed infant formula from birth up to 4 months of age instead of a formula containing intact cow’s milk proteins may reduce the risk of developing atopic dermatitis throughout the 1st year of life and up to 3 years of age.”
2. "Little scientific evidence suggests that, for healthy infants who are not exclusively breastfed and who have a family history of allergy, feeding a 100% Whey-Protein Partially Hydrolyzed infant formula from birth up to 4 months of age instead of a formula containing intact cow’s milk proteins may reduce the risk of developing atopic dermatitis throughout the 1st year of life.”
3. "For healthy infants who are not exclusively breastfed and who have a family history of allergy, feeding a 100% Whey-Protein Partially Hydrolyzed infant formula from birth up to 4 months of age instead of a formula containing intact cow’s milk proteins may reduce the risk of developing atopic dermatitis throughout the 1st year of life and up to 3 years of age. FDA has concluded that the relationship between 100% Whey-Protein Partially Hydrolyzed infant formulas and the reduced risk of atopic dermatitis is uncertain, because there is very little scientific evidence for the relationship.”
4.“For healthy infants who are not exclusively breastfed and who have a family history of allergy, feeding a 100% Whey-Protein Partially Hydrolyzed infant formula from birth up to 4 months of age instead of a formula containing intact cow's milk proteins may reduce the risk of developing atopic dermatitis throughout the 1st year of life. FDA has concluded that the relationship between 100% Whey-Protein Partially Hydrolyzed infant formulas and the reduced risk of atopic dermatitis is uncertain, because there is little scientific evidence for the relationship.”
(Greene Compl. ¶ 45.) In addition, the FDA explained that the use of any of the four claims would have to be accompanied by the following statement:
Partially hydrolyzed formulas should not be fed to infants who are allergic to milk or to infants with existing milk allergy symptoms. If you suspect your baby is already allergic to milk, or if your baby is on a special formula for the treatment of allergy, your baby's care and feeding choices should be under a doctor’s supervision.
(FDA Letter dated May 24, 2011 ("FDA 2011 Letter”), annexed to Castello Decl. as Ex. 1.)
. Because both complaints cite to and quote extensively from the FDA Warning Letter, (see Compl. ¶¶ 68-71), the Court finds that the letter is incorporated by reference into the Greene Complaint and the Manemeit Complaint. See DiFolco v. MSNBC Cable L.L.C.,
. The courts in both Zakaria and Nat’l Consumers League denied Defendant's motions to dismiss the complaints in those actions. See Zakaria,
. In Hasemann, this Court observed that the Second Circuit has not directly addressed whether plaintiffs bringing claims of false or misleading advertising have standing to seek prospective injunctive relief when the challenged action is still ongoing but there is no . threat of repeated injury to the plaintiffs. See Hasemann,
. “Under North Carolina law, to establish a prima facie claim under the [NCDTPA], a plaintiff must show: ‘(1) defendant committed an unfair or deceptive act or practice, (2) the act[ ] in question is in or affecting commerce, and (3) the act proximately caused- injury to the plaintiff.’ ” Bayer Cropscience LP v. Albemarle Corp.,
. In determining whether Plaintiffs have satisfied the Rule 9(b) pleading standard, Second Circuit law governs. See In re Ford Fusion & C-Max Fuel Econ. Litig., No. 13-MD-2450,
. "To prevail on a claim under GBL [section] 350, a plaintiff must demonstrate reliance on defendants’ false advertising, However [section] 349 does not require proof of reliance.” Ackerman v. Coca-Cola Co., No. 09-CV-0395,
. In addition, with respect to the safe harbor provision in section 350, Defendant has not identified a rule, regulation, or statute administered by the Federal Trade Comfnisskm or a state agency with which the Infant Formula complies, Based on the plain language of the statute, the FDA 2011 Letter does not provide Defendant with a defense against the allegedly deceptive and misleading claims because section 350 does not provide safe harbor for an entity’s compliance with an FDA regulation-only for compliance with the regulations of “the Federal .Trade Commission or any official department, division, commission or agency of the state of New York,” N.Y. Gen. Bus. Law § 350-d."Defendant has not provided support to the contrary,
. Defendant generally argues that Plaintiffs have not made particularized allegations of falsity, as required under Rule 9(b), and the Court addresses that argument in section 11(g), infra, . .
. Defendant analyzes Ae common-law claims under New York law for purposes of Ais motion. (Def. Mem. 15.) Plaintiffs do not object, (Pls. Opp’n 15 n.33), and the Court therefore applies. New York common law to the claims, .