903 F.3d 278 | 3rd Cir. | 2018
Lead Opinion
The question presented in this appeal from a dismissal of a class action is both narrow and novel: Has a plaintiff-who has entirely consumed a product that has functioned for her as expected-suffered an economic injury solely because she now sincerely wishes that she had not purchased that product? We hold that such a plaintiff has not suffered an economic injury *281sufficient to bring a claim in federal court. More succinctly, buyer's remorse, without more, is not a cognizable injury under Article III of the United States Constitution.
A plaintiff alleging an economic injury as a result of a purchasing decision must do more than simply characterize that purchasing decision as an economic injury. The plaintiff must instead allege facts that would permit a factfinder to determine, without relying on mere conjecture, that the plaintiff failed to receive the economic benefit of her bargain. Because the plaintiff here has failed to plead facts sufficient to establish economic harm, the District Court's judgment will be affirmed.
I. BACKGROUND
Plaintiff Mona Estrada alleges that a woman's perineal use of Defendant Johnson & Johnson's Baby Powder can lead to an increased risk of developing ovarian cancer. JA 47. Without question, that is a serious allegation. Yet the validity of Plaintiff's epidemiological theory is not for this court to decide.
First, Plaintiff does not allege that a product has caused her physical injury.
What, then, does Estrada allege? Her theory of recovery is simply that she suffered an economic injury by purchasing improperly marketed Baby Powder. JA 49. According to Estrada, had she been properly informed that using Baby Powder could lead to an increased risk of developing ovarian cancer, she would not have purchased the powder in the first place. JA 49, 70. Characterizing this as an economic injury, she seeks relief for herself and a class of similarly situated consumers.
Estrada first brought this lawsuit in the United States District Court for the Eastern District of California. JA 46. On March 27, 2015, that court dismissed Estrada's complaint for lack of Article III standing. Estrada Br. 7. Estrada then filed an amended complaint, but before the Eastern District of California could rule on that complaint, the case was consolidated as part of a Multidistrict Litigation proceeding and transferred to the United States District Court for the District of New Jersey (the "District Court"). JA 44; Estrada Br. 7.
On July 14, 2017, the District Court dismissed Estrada's complaint without prejudice for lack of Article III standing, and granted her leave to amend. JA 5. After Estrada informed the District Court that she chose not to amend and would stand on her complaint, the District Court dismissed the case on August 10, 2017. JA 4.
In concluding that Estrada did not have Article III standing, the District Court explicitly considered whether Estrada's allegations fell within any one of three different theories of economic injury: (1) alternative product; (2) premium price; and (3) benefit of the bargain. JA 16-17. Estrada challenges this tripartite analysis, contending that the District Court inappropriately funneled her allegations into "one of three assumed damage methodologies." Estrada Br. 7. But Estrada was not restricted to the three theories considered by the District Court; she was free to present additional theories of her own-particularly by amending her complaint when the District Court offered her the opportunity to do so. In examining Estrada's complaint through the lens of three different theories of injury, the District Court merely fulfilled its duty to "examine the allegations in the complaint from a number of different angles" in order to see if the "purported injury can be framed in a way that satisfies Article III." Finkelman v. Nat'l Football League ,
Under the alternative product theory, a plaintiff might successfully plead an economic injury by alleging that, absent the defendant's conduct, she would have purchased an alternative product that was less expensive. Under this theory, the economic injury could be calculated by determining the difference in price between the defendant's more expensive product and the less expensive alternative. Portions of Estrada's complaint can reasonably be read as an attempt to allege this very theory of injury. Her complaint states, for example, that had she "known the truth about the safety of using [Johnson & Johnson's talc-based Baby Powder], she would not have purchased the product," but instead *283"would have purchased an alternative product containing cornstarch instead of talc." JA 49.
Under a second theory analyzed by the District Court, the premium price theory, a plaintiff may plead an economic injury by alleging that the defendant unlawfully advertised its product as being "superior" to others. Applying this approach, economic injury is calculated as the unfair "premium" that the plaintiff was unlawfully induced to pay. The District Court concluded that Estrada did not sufficiently allege an economic injury under this theory because she did not claim that Johnson & Johnson "advertised Baby Powder as superior to other products," nor did she allege that "she would not have paid a premium for Baby Powder" but for such advertisements. JA 35. In other words, Estrada identified no unlawful "premium."
Estrada concedes that her claims do not fall within either the alternative product or premium price theories of economic injury. Estrada Br. 25 ("Estrada's injury in this case does not depend on her ability to purchase an alternative product at a cheaper price."); id. at 26 ("[T]he district court's 'premium price' methodology has nothing to do with Estrada's claims."); Reply Br. 12 ("The District Court's 'Alternative Product' and 'Price Premium' Theories Are Irrelevant"). Indeed, Estrada has failed to identify either a cheaper alternative or an unlawful premium. Any economic injury she may have suffered, then, must be conceptualized by applying some other theory of injury. Accordingly, the third theory of injury analyzed by the District Court, the benefit of the bargain theory, merits our attention.
Under the benefit of the bargain theory, a plaintiff might successfully plead an economic injury by alleging that she bargained for a product worth a given value but received a product worth less than that value. The economic injury is calculated as the difference in value between what was bargained for and what was received. The District Court concluded that Estrada's allegations also failed to fit within this theory of harm because she purchased and received Baby Powder that successfully did what the parties had bargained for and expected it to do: eliminate friction on the skin, absorb excess moisture, and maintain freshness. JA 17-18, 29-30. On appeal, Estrada rejects the significance of the Baby Powder performing these functions. She contends that although she received Baby Powder that eliminated friction on the skin, absorbed excess moisture, and maintained freshness, she was also promised that the Baby Powder would be "safe." Instead, Estrada contends, the product was "unsafe." Estrada Br. 19-20. We focus, then, on this contention and consider whether Estrada has successfully alleged an economic injury sufficient to confer Article III standing.
*284II. STANDING JURISPRUDENCE
Article III of our Constitution vests "[t]he judicial power of the United States" in both the Supreme Court and "such inferior courts as the Congress may from time to time ordain and establish." U.S. Const. art. III., § 1. While Article III does not outline the exact contours of this "judicial power," the Constitution "does specify that this power extends only to 'Cases' and 'Controversies.' " Spokeo, Inc. v. Robins , --- U.S. ----,
To establish standing, a plaintiff must have "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Id . This appeal focuses on the " '[f]irst and foremost' of standing's three elements," injury in fact.
Because Estrada is the party seeking to invoke federal jurisdiction, "[t]he burden to establish standing" rests with her. Finkelman ,
III. MONETARY DAMAGES
In considering whether Estrada has standing to seek monetary damages, we focus our analysis on two recent Article III standing opinions from this Court: Finkelman v. National Football League ,
While in Cottrell we concluded that the plaintiffs' economic theory of harm was based on more than mere conjecture, in Finkelman we concluded just the opposite. The two holdings can be harmonized, however, to provide a clear lesson: a plaintiff must do more than offer conclusory assertions of economic injury in order to establish standing. She must allege facts that would permit a factfinder to value the purported injury at something more than zero dollars without resorting to mere conjecture. Accordingly, Estrada must do more than simply characterize her Baby Powder purchases as economic injuries; she must allege facts that would permit a factfinder to determine that the economic benefit she received in purchasing the powder was worth less than the economic benefit for which she bargained. A brief description of the holdings in Finkelman and Cottrell brings this lesson into focus.
In Finkelman , two plaintiffs alleged that the National Football League ("NFL") had a ticketing policy of reserving tickets for League Insiders that resulted in Super Bowl tickets being priced higher than they would have been had the NFL offered to sell more tickets to the general public. Finkelman ,
A second plaintiff, Finkelman, presented a closer case because he alleged that he had actually purchased Super Bowl tickets.
Although Finkelman did not participate in the ticket lottery, he did allege that he purchased tickets in a secondary market where tickets from the lottery were resold.
*286Finkelman contended that his economic injury could be calculated as the difference between what he actually paid, and what he claimed he should have paid had the NFL released more tickets to the general public. Id . We concluded that this theory failed to provide Finkelman with standing, since "League [I]nsiders ... had the same incentive to resell their tickets as the unnamed broker who sold Finkelman his two tickets."
In summarizing the issue with Finkelman's second economic theory of injury, we explained that "we have no way of knowing whether the NFL's withholding of tickets would have had the effect of increasing or decreasing prices on the secondary market. We can only speculate-and speculation is not enough to sustain Article III standing." Id . Although we noted that courts often "credit allegations of injury that involve no more than 'application of basic economic logic,' "
Unlike the economic theories in Finkelman , the plaintiffs' theories in Cottrell were sufficient to establish Article III standing. In Cottrell , we held that plaintiffs, who purchased prescription eye-drops, had Article III standing to sue the manufacturers and distributors of those eye-drops. Cottrell ,
We concluded that the Cottrell plaintiffs had standing only after we conducted an analysis of their economic theories-as we did in Finkelman -and determined that the Cottrell plaintiffs' attempt to place an *287economic value on the "wasted" portion of the eye-drops was not conjectural. Id . at 168. Estrada attempts to read this important limitation out of Cottrell . She contends that Cottrell "confirmed that a consumer's purchase of a product based on the manufacturer's deceptive and unfair business practices constitutes injury-in-fact." Estrada Br. 2. In so arguing, Estrada overreads our opinion. The Cottrell plaintiffs did not have standing simply because they purchased a product that a consumer would view as flawed. Rather, the plaintiffs had standing only because they were unable to use a portion of the eye-drop medication they had purchased, and they alleged an economic theory that allowed them to value that unused portion.
We did not offer lengthy analyses of the various economic theories presented in either Finkelman or Cottrell because we wished to sound pedantic. We conducted those analyses because Article III requires us to ensure that plaintiffs present more than merely conjectural assertions of injury. Finkelman ,
Estrada nonetheless contends that, unlike the plaintiffs in Finkelman and Cottrell , she is not required to offer any economic theory of injury at the pleading stage. As her opening brief puts it, "[t]he amount Estrada and other members of the class may receive in damages or restitution is a different question than whether [she] has standing." Estrada Br. 26. Estrada further promises that, "[a]t the appropriate time after discovery," she will "put forth models for calculating damages and restitution that are linked to her theory of relief and are based on the evidence in the case." Id . Estrada's request to indefinitely defer what is a pleading obligation is not one we may grant and still fulfill our constitutional obligations.
To start, Estrada's promise to provide us with a means to conceptualize her injury at some future time does nothing to assist us in determining whether Estrada has standing at this stage. Finkelman ,
In order to allege that she has suffered an economic injury as a result of simply purchasing Baby Powder, Estrada must allege that she purchased Baby Powder that was worth less than what she paid for. This is not to say that a plaintiff is required to allege the exact value of her economic injury at the pleading stage. Calculating and proving damages is indeed one of the major phases of a civil trial, and a plaintiff need not develop detailed economic models at the pleading stage to establish that she has standing.
But even at the pleading stage, a plaintiff must set forth sufficient factual allegations that, if proven true, would permit a factfinder to determine that she suffered at least some economic injury. Danvers Motor Co. v. Ford Motor Co. ,
It would not have been enough for the plaintiffs in Cottrell and Finkelman to simply allege that, although they purchased eye-drops and football tickets at a given price, they later wished they had not done so. But that is as far as Estrada's allegations of economic injury go. Although "[i]njury-in-fact is not Mount Everest," Danvers ,
But what are we to make of Estrada's allegations that she received only "unsafe" Baby Powder despite being promised "safe" Baby Powder? Estrada Br. 19-20. Can we not presume that Estrada would spend more for safe powder than she would for unsafe powder? Should we further presume that this difference in price constitutes an economic injury sufficient to confer Article III standing? We cannot do so for at least two reasons-the first based in law, and the second based in fact.
First, such presumptions would turn the standing question on its head. It is well-settled law that "[w]e presume that federal courts lack jurisdiction unless the contrary appears affirmatively from the record." DaimlerChrysler Corp. v. Cuno ,
*289Philadelphia Fed'n of Teachers, Am. Fed'n of Teachers, Local 3, AFL-CIO v. Ridge ,
We cannot conclude that we have jurisdiction by presuming that Estrada would pay less for unsafe powder when she fails to even plead as much. And our refusal to leap to such a conclusion is supported by Estrada's apparent desire to continue purchasing Baby Powder in the future despite being aware of its alleged health risks. Estrada Reply Br. 2, 18. It is worthy of note that Estrada's desire to continue purchasing Baby Powder is not conditioned on the powder being sold at a discounted price. In the absence of that condition, we would be hard-pressed to presume that Estrada wishes to continue to buy Baby Powder at anything other than its current market price, i.e. , the very price she has repeatedly paid for the product over the last six decades.
The second reason we cannot presume that Estrada suffered an economic injury by failing to receive "safe" powder is factual. Although Estrada contends that Baby Powder is "unsafe," her own allegations require us to conclude that the powder she received was, in fact, safe as to her . As we described early in this opinion, Estrada did not allege that she developed ovarian cancer, nor did she allege she is at risk of developing ovarian cancer in the future as a result of her Baby Powder use. Estrada's references to Baby Powder being unsafe as to others are not relevant to determining whether Estrada has standing herself . Lujan ,
We could not conclude that Estrada has standing even if she were to contend that, by "unsafe" powder, she meant not only powder that would cause her to develop ovarian cancer but also powder that would put her at risk of developing ovarian cancer. To be sure, had Estrada alleged that she was at risk of developing ovarian cancer, she may have established standing based on a theory of future physical injury. Because litigants and jurists cannot predict the future, the law will sometimes permit plaintiffs to establish standing based on injuries that are likely to occur later in time.
But Estrada chose not to allege any risk of developing ovarian cancer in the future. JA 49-50 ("Plaintiff is not claiming physical harm or seeking the recovery of personal injury damages."). Given the absence of such an allegation, Estrada cannot now *290claim that she was ever at risk of developing ovarian cancer.
To further illustrate this point, imagine that Defendants could go back in time to the 1950s when Estrada first purchased Baby Powder. Imagine further that, the moment before Estrada purchased that first bottle of Baby Powder, Defendants informed her that "although this powder might cause others to develop ovarian cancer, we have seen the future and we can tell you with absolute certainty that there is a zero percent chance that this Baby Powder will ever cause you to develop ovarian cancer." Can it be said that a plaintiff with a zero percent chance of ever experiencing a harm is at "risk" of experiencing that harm? The question answers itself. And because Estrada does not allege that she suffered harm through an increased risk of developing ovarian cancer, we can conclude that the powder Estrada purchased was not "unsafe."
In sum, although Estrada characterizes her Baby Powder purchases as economic injuries for which she is entitled to relief, she has failed to allege that the economic benefit she received from that powder was anything less than the price she paid. In short, she received the benefit of her bargain.
*291IV. RESTITUTION
In addition to seeking monetary damages, Estrada seeks disgorgement of revenues and profit pursuant to the law of restitution.
These two statements are nothing more than conclusory assertions and are therefore inadequate to provide Estrada with Article III standing. See Finkelman v. Nat'l Football League ,
As Part III explained, in order to seek monetary damages, Estrada must do more than simply characterize her purchases as economic injuries. The same rationale holds true as to her restitution claims-Estrada cannot invoke the federal judicial power simply by asserting that Johnson & Johnson has earned unlawful profits. Estrada's conclusory assertions are further weakened by her alleged desire to purchase Baby Powder in the future despite knowing of its alleged health risks. Estrada Reply Br. 2, 18. If Estrada herself wishes to purchase Baby Powder whether or not she knows of those health risks, why would the same not hold true for other consumers? And if other consumers were to purchase Baby Powder whether or not they were warned of the alleged health risks, how did Johnson & Johnson earn unlawful profits by failing to offer such warnings? Estrada's two conclusory assertions provide us not even a hint as to how we might answer these basic questions.
*292In sum, Estrada's restitution claims are based on nothing more than mere conjecture. She pleads no facts upon which a factfinder could conclude that Johnson & Johnson has been able to sell more Baby Powder than it could have had it informed consumers of the alleged health risks. We therefore conclude that Estrada lacks standing to seek relief in the form of restitution.
V. INJUNCTIVE RELIEF
Finally, Estrada seeks injunctive relief in the form of "corrective advertising" and "enjoining Defendants from continuing the unlawful practices" of selling Baby Powder without properly warning consumers of the alleged health risks. JA 79.
In McNair , we considered whether "former customers" of a magazine company had standing to seek injunctive relief.
Estrada has sued Johnson & Johnson for failing to warn her of certain health risks. To state the obvious, then, she is presently aware of those risks. As with the former customers in McNair , we wonder how Estrada could possibly be deceived again into buying Baby Powder without *293being aware of those same risks. She is simply not at risk of suffering an economic "injury," and we will not give cognizance to this sort of "stop me before I buy again" claim.
Perhaps sensing that McNair presents her with a real challenge, Estrada would have us limit McNair to instances when plaintiffs do not allege an intention to make purchases in the future. Estrada Reply Br. 17-18. Because Estrada desires to purchase Baby Powder in the future, she contends that her case can be distinguished from McNair . Id. We decline to so limit McNair .
To begin with, we noted in McNair that "[p]erhaps [the former customers] may accept a Synapse offer in the future." McNair ,
CONCLUSION
Estrada contends that other people have suffered health complications from using Johnson & Johnson's Baby Powder. Regardless of whether that serious allegation has merit, injuries suffered by others do not permit us to conclude that Estrada has herself suffered an injury in fact. The only injury that Estrada alleges is purely economic in nature-that is, that had she known more about Baby Powder, she would not have purchased it in the first place. But Estrada's wish to be reimbursed for a functional product that she has already consumed without incident does not itself constitute an economic injury within the meaning of Article III.
Estrada fails to provide a non-conjectural basis for concluding that she did not receive the benefit of her bargain. Estrada similarly fails to show that she is at risk of suffering an economic injury in the future, or that Johnson and Johnson has sold more Baby Powder than it otherwise could have. For these reasons, we conclude that Estrada does not have Article III standing to seek any of the three forms of relief requested in her complaint. The judgment of the District Court will be affirmed.
"When reviewing an order of dismissal for lack of standing, we accept as true all material allegations of the complaint and construe them in favor of the plaintiff." Danvers Motor Co., Inc. v. Ford Motor Co. ,
JA 49-50 ("Plaintiff is not claiming physical harm or seeking the recovery of personal injury damages."). Excluded from Estrada's proposed class definition are individuals "who assert claims from personal injury." JA 71.
Nor could Estrada credibly make such an allegation. She continued to purchase the powder for approximately six decades-presumably because it worked. See JA 49 (alleging that Estrada purchased Defendant's baby powder "[f]rom about 1950 to sometime in 2013").
By "nondurable," we refer to a product that is consumed rather quickly-such as a gallon of gasoline. By contrast, a "durable" product is one that is consumed over a much longer period of time-such as a new automobile. A plaintiff who, for example, alleged that her automobile was at risk of imminently malfunctioning because of a particular defect would present a much different question than the one at hand.
Estrada seeks certification of a class defined as "All persons who purchased [Johnson & Johnson] Baby Powder in California and states with laws that do not conflict with the laws asserted here." JA 71. However broad this proposed definition, apparently covering even men (who are obviously incapable of developing ovarian cancer ), we are not presented with issues arising under Rule 23 of the Federal Rules of Civil Procedure.
As explained in Estrada's complaint, Johnson & Johnson's "Baby Powder is made entirely of talc and fragrance. Talc is a mineral composed of hydrated magnesium silicate that is mined from the earth. It is an inorganic material. Talc is used to manufacture goods, such as paper making, plastic, paint and coatings, rubber, food, electric cable, ceramics, and cosmetics. In its loose form and as used in the Baby Powder, talc is known as 'talcum powder.' " JA 54.
"We exercise plenary review over a dismissal for lack of standing." Cottrell v. Alcon Laboratories ,
Although Article III does not explicitly refer to "standing," the judicial doctrine derives from the principle of separation-of-powers. See, e.g. , Clapper v. Amnesty Int'l USA ,
We further noted that the NFL's withholding of "tickets from the general public ... might have even increased the supply of tickets on the resale market, leading to lower prices." Finkelman ,
After remand, Finkelman abandoned his first theory of economic harm and presented the district court with additional facts supporting his second theory. Finkelman v. Nat'l Football League ,
Were we to accept Estrada's argument, one might reasonably wonder whether the Cottrell plaintiffs were foolish for suing only for the value of the portion of the eye-drops that they could not use, rather than suing for the value of the entire bottle. But unlike Estrada-who alleges an economic injury which includes portions of a product that she actually consumed-the Cottrell plaintiffs alleged an economic injury consisting of only the "wasted" portion of the product.
See, e.g. , Twp. of Lyndhurst, N.J. v. Priceline.com Inc. ,
The Dissent takes issue with our noting that Estrada received Baby Powder that was safe as to her. According to the Dissent, Estrada has standing because although she received safe powder, others allegedly did not. As comparative examples, the Dissent refers to a parent who purchases organic food that turns out to not be organic, a consumer who purchases locksets marketed as being "Made in the U.S.A" that ultimately were not so made, and an observant Jew who purchases nonkosher meat that was improperly labeled as being kosher. But while the Dissent might be correct that those hypothetical plaintiffs would have standing, Estrada's case is unlike those examples. Instead, Estrada's claims are similar to those of a parent who indeed received organic food, a consumer who indeed received locksets domestically made, and an observant Jew who indeed received kosher meat-but who wish to sue because they claim that other individuals did not similarly receive the benefit of their own bargains. Although defendants who perform for some consumers but not others might be held liable pursuant to other mechanisms-by, for example, state attorneys general filing suit-Article III does not permit private plaintiffs to sue for injuries suffered only by others.
To this end, we note that our holding does not conflict with the Supreme Court of California's holding in Kwikset Corp. v. Superior Court ,
The key language in that quote, as we read it, is the language that the Court chose to italicize: that a consumer has "paid more " for a product than she otherwise would have had it been properly labeled.
Although Koronthaly v. L'Oreal USA, Inc. ,
JA 79 (seeking "restitution and disgorgement of Defendants' revenues" and further asking the District Court to direct "Defendants to identify, with court supervision, victims of their conduct and pay them restitution and disgorgement of all monies acquired by Defendants by means of any act or practice declared by this Court to be wrongful").
Estrada repeats this same point later in her complaint. JA 70 (stating that Johnson & Johnson was "able to charge more than [it] otherwise would have had [it] properly informed consumers that women who use Baby Powder in the genital area have a significant increased risk of ovarian cancer").
And other questions come to mind. Estrada has observed that consumers are already highly informed of the alleged health risks associated with Baby Powder given the numerous publicly available studies and publications that she cites in her complaint. JA 54-67. Estrada's complaint refers to, inter alia , scientific studies from "as early as 1961," JA 54, a 1982 New York Times article regarding the alleged health risks of talcum powder, JA 67, and a pamphlet allegedly distributed "to all ovarian cancer patients at nearly every medical facility in the United States." JA 66. Wouldn't such widespread knowledge already have been factored into the current market price of Baby Powder? And if so, how did Johnson & Johnson earn unlawful profits by withholding information that the market might have already taken account of?
Estrada also refers in passing to "declaratory" relief three times in her complaint. JA 72, 79. All three references to "declaratory" relief are made in connection with her request for injunctive relief. JA 72 ("declaratory and/or injunctive relief");
"The majority of Synapse's magazine subscriptions are offered under what is known as a 'continuous service plan' whereby a customer's subscription does not expire unless and until the customer opts to cancel it. To secure subscribers to those plans, Synapse offers introductory promotional offers under which customers can receive magazine subscriptions for free or at greatly reduced rates." McNair ,
Dissenting Opinion
Juries across the country have returned verdicts finding, among other things, that Johnson & Johnson is liable to consumers of Johnson's Baby Powder for its propensity to increase the risk of ovarian cancer in women.
The majority is thorough and reaches a conclusion of law that, in the abstract, makes perfect sense: a plaintiff who receives the benefit of her bargain cannot assert that she has suffered an injury-in-fact to establish standing under Article III. I write separately because the majority omits key terms from the bargain struck between Estrada and Johnson & Johnson to reach the conclusion that Estrada received the benefit of her bargain. In my view, she did not. I would conclude from Estrada's pleadings that the safety of the product-as a general proposition, not specifically as to Estrada herself-was an essential component of the benefit of Estrada's bargain. Because Estrada alleges that the safety of the product was part of her bargain and that Johnson & Johnson misrepresented this key element, I would hold that Estrada has alleged injury-in-fact and standing under Article III. At this stage of the proceedings, all Estrada must allege is an "identifiable trifle" sufficient to establish injury-in-fact for standing under Article III.
I.
According to Estrada's pleadings, Johnson & Johnson has encouraged women to dust themselves daily with Johnson's Baby Powder through labeling and advertising. Estrada alleges that while the specific language of the label has changed over time, its message has remained consistent: "that the product is safe for use on women as well as babies."
Johnson & Johnson "seek[s] to convey an image as a safe and trusted family brand."
The majority does not dispute that Estrada alleges that Johnson & Johnson held the product out as safe. I agree. The majority states that "Estrada's references to *295Baby Powder being unsafe as to others are not relevant to determining whether Estrada has standing herself ."
I depart from the majority's reasoning that Johnson's Baby Powder must be unsafe "as to [Estrada]" in order for safety to be part of the benefit of Estrada's bargain.
II.
The majority contends that Estrada received the benefit of her bargain because it was safe "as to her."
What makes a product safe? If I buy a car of a make and model that reportedly explodes when driven, it seems obvious that the car is not safe. But what if I know that the specific car that I have purchased, and any subsequent cars of that make and model that I purchase, will never explode while I am in the car? The car or cars that I purchase contain the same structural defect that makes those cars explode but I, through the powers granted to me by legal fiction, know they will never explode while I am in the car. Under the majority's reasoning, this means that the car is safe as to me and, therefore, I have conceded that it is safe in any legal action I take against the manufacturer for selling a car with an evident inclination to explode. After all, I am totally protected from the risk posed by the defect. But no one would describe the car as safe.
When we talk about a product being "safe," and when manufacturers and vendors hold a product out as "safe," we are talking about two related but distinct concepts. The first is exactly what the majority describes: safety as to the immediate purchaser. This is a common conception of safety, the consumer who considers the product and asks: "Is this going to hurt and/or kill me?" This form of safety undergirds *296the claims that Johnson & Johnson misrepresented the safety of its product brought by plaintiffs who allege that they contracted or were exposed to an increased risk of contracting ovarian cancer. It is not at issue here.
But this is not the only form of safety. The second form of safety-the safety that was part of Estrada's bargain-concerns the safety of a product generally, or its safety as to others. The parent who buys a toy for a child considers the safety of the toy not necessarily as to him or her but as to the child. A man might buy Johnson's Baby Powder that will be used by a woman with whom he cohabitates, and might very well consider the safety of that product as to the other person, not to himself.
Kwikset Corp. v. Superior Court ,
Perhaps illustrating the fundamental simplicity of the case before us, the Kwikset court disagreed, stating:
Plaintiffs selected Kwikset's locksets to purchase in part because they were "Made in U.S.A."; they would not have purchased them otherwise; and, it may be inferred, they value what they actually received less than either the money they parted with or working locksets that actually were made in the United States. They bargained for locksets that were made in the United States; they got ones that were not.19
The Kwikset court further reasons:
*297The observant Jew who purchases food represented to be, but not in fact, kosher; the Muslim who purchases food represented to be, but not in fact, halal; the parent who purchases food for his or her child represented to be, but not in fact, organic, has in each instance not received the benefit of his or her bargain.20
Estrada has alleged that there was a misrepresentation made by Johnson & Johnson as to the safety of Johnson's Baby Powder and, moreover, that the misrepresentation was material to her decision to purchase Johnson's Baby Powder.
At least this stage of the proceedings, where we only endeavor to determine whether a plaintiff has standing to pursue her claim, I see no reason we should devote ourselves to understanding why a plaintiff values what she values. As Kwikset notes:
This economic harm-the loss of real dollars from a consumer's pocket-is the same whether or not a court might objectively view the products as functionally equivalent. A counterfeit Rolex might be proven to tell the time as accurately as a genuine Rolex and in other ways be functionally equivalent, but we do not doubt the consumer (as well as the company that was deprived of a sale) has been economically harmed by the substitution in a manner sufficient to create standing to sue. Two wines might to almost any palate taste indistinguishable-but to serious oenophiles, the difference between one year and the next, between grapes from one valley and another nearby, might be sufficient to carry with it real economic differences in how much they would pay. Nonkosher meat might taste and in every respect be nutritionally identical to kosher meat, but to an observant Jew who keeps kosher, the former would be worthless.21
I am persuaded by this rationale. The parent who purchases "organic" food that is not organic need not justify her decision to purchase food labeled "organic." The Kwikset plaintiffs were not obliged to explain why they cared if the locksets they purchased were manufactured in the United States. It was sufficient that the misrepresentation of the manufacturer deprived them of the benefit of their bargain such that they would not have purchased the product had the product been labeled accurately. As courts construing Kwikset have stated: "[A] consumer's subjective willingness to pay more for the product than he or she would have been willing to pay in the absence of the misrepresentation is itself a form of economic injury 'whether or not a court might objectively view the products as functionally equivalent.' "
Estrada effectively alleges that she values "safety" as a label, akin to "organic" or "Made in U.S.A." When contrasted with the real danger allegedly posed by Johnson's Baby Powder, this misrepresentation might seem petty. However, that does not make it immaterial to Estrada's bargain as she alleges it.
III.
The majority invokes two of our recent precedents to characterize Estrada's alleged injury as some attenuated, unknowable entity. The majority's invocation of Finkelman v. National Football League is misplaced.
The majority correctly notes that we did not analyze the economic theories presented in Finkelman and Cottrell "because we wished to sound pedantic."
That is not the case here. Estrada alleges that she paid for a product based, in part, on Johnson & Johnson's representation of its safety. That representation was part of the benefit of her bargain. Because that representation was false, Estrada did not receive the benefit of her bargain.
Unlike Finkelman , Estrada need not allege a chain of events to show that she paid a price she would not have otherwise paid for Johnson's Baby Powder. In my view, it suffices that she alleges that she would not have purchased the product. The price increase in her bargain with Johnson & Johnson caused by the company's alleged misrepresentation as to safety is the total sum she paid for the product.
Unlike the Cottrell plaintiffs, Estrada does not concede that she received the benefit of her bargain as to some of her purchase-that some of the product was safe as represented by Johnson & Johnson.
Moreover, the majority's logic is incompatible with Cottrell . After all, the Cottrell plaintiffs used all the medicine. Their bargain could be circumscribed just as the majority edits the terms of Estrada's bargain: the Cottrell plaintiffs bargained for the benefits of the medicine, not medicine delivered in a minimum effective dose so as to maximize the medicine's utility. But we wisely recognized in Cottrell that the benefit of the bargain encompasses the whole bargain, and that the bargain should not be redefined to neatly encompass only what plaintiffs actually received, instead of what they were promised.
IV.
The majority further holds that Estrada has failed to plead facts sufficient to establish standing to pursue restitution and to pursue injunctive relief. I disagree, largely for reasons already articulated.
With respect to restitution, the majority concludes that Estrada only makes conclusory allegations that Johnson & Johnson sold Johnson's Baby Powder for more money than it would have made had it disclosed the alleged risk of ovarian cancer. In this case, I would rely on the precedent of this Court that "federal courts typically credit allegations of injury that involve no more than application of basic economic logic."
With respect to injunctive relief, I do not read Estrada's allegation as in fundamental tension with McNair v. Synapse Group Inc.
Moreover, I believe plaintiffs alleging harm caused by defendants' misrepresentations are entitled to seek injunctive relief against those misrepresentations, in part because that is explicitly permitted under California's Unfair Competition Law under which Estrada sues.
*300V.
Article III standing is the minimum hurdle that a plaintiff must meet to bring her claim in federal court. To conclude here that Estrada has pleaded standing, we need not and, in fact, cannot determine whether she has stated a claim sufficiently to withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). We cannot address whether this claim as pleaded establishes a sufficient basis for class certification under Federal Rule of Civil Procedure 23. As previously stated, our only duty here is to determine whether Estrada alleged an "identifiable trifle" sufficient to establish injury-in-fact for standing under Article III.
See, e.g. , Tiffany Hsu, Johnson & Johnson Told to Pay $4.7 Billion in Baby Powder Lawsuit , N.Y. Times , July 12, 2018, https://www.nytimes.com/2018/07/12/business/johnson-johnson-talcum-powder.html; Tina Bellon, J&J hit with $21.7 million verdict in another talc asbestos cancer case , Reuters , May 23, 2018, https://www.reuters.com/article/us-johnson-johnson-cancer-lawsuit/jj-hit-with-21-7-million-verdict-in-another-talc-asbestos-cancer-case-idUSKCN1IO3HD.
Bowman v. Wilson ,
AA050.
AA053.
Majority Op. at 289 (emphasis in original).
Lujan v. Defenders of Wildlife ,
Hinojos v. Kohl's Corp. ,
Majority Op. at 289 (emphasis omitted).
The majority conflates safety as a representation with safety as insulation from risk to Estrada specifically, which perhaps is why it notes skeptically that men could join Estrada's proposed class. I leave aside that class certification is well beyond the scope of subject-matter jurisdiction. I also leave aside that the putative class action elements of this case are entirely separate from whether Estrada herself has standing to pursue her claim. Here, however, the majority again seems to forget that Estrada does not allege that she was exposed to the danger allegedly posed by Johnson's Baby Powder. She alleges that Johnson & Johnson's representations of safety were among the terms under which she purchased the product. This valuation of safety is not gender-exclusive.
Majority Op. at 290 n.14.
Kwikset ,
Hansen v. Newegg.com Americas, Inc. ,
See Majority Op. at 285-86.
Finkelman v. Nat'l Football League ,
See
See Cottrell v. Alcon Labs. ,
Majority Op. at 287.
Additionally, for this reason, the majority's assertion that Estrada's theory of standing would have entitled the Cottrell plaintiffs to sue for the contents of the entire bottle is wrong.
Finkelman ,
See
Bowman ,