VALERIE PALMIERI, DIANE GORDON, TERI IPPOLITO, GAYLE MORASKI, HOLLY REEVES, and AMY TUCKER, individually and on behalf of all others similarly situated, Plaintiffs, v. INTERVET INC. d/b/a MERCK ANIMAL HEALTH, a subsidiary of MERCK & CO., INC., Defendant.
Civil Action No. 19-22024 (JXN) (AME)
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
June 30, 2025
NEALS, District Judge
NEALS, District Judge:
This matter comes before the Court on Defendant Intervet, Inc. d/b/a Merck Animal Health‘s (“Defendant‘s“) motion to dismiss and strike class allegations in Plaintiffs Valerie Palmieri (“Palmieri“), Diane Gordon (“Gordon“), Teri Ippolito (“Ippolito“), Gayle Moraski (“Moraski“), Holly Reeves (“Reeves“), and Amy Tucker‘s (“Tucker“) (collectively, the “Plaintiffs“)1 third amended class action complaint (“TAC“) (ECF No. 136) pursuant to
Plaintiffs reside in Connecticut, Florida, Illinois, New York, and Texas, and purchased “Bravecto” in 2015 to 2018. (SAC ¶¶ 19-25). Plaintiffs bring this putative class action against Defendant for injuries sustained in treating ticks and fleas in their dogs with Bravecto. (Id. ¶ 28).3
“Defendant advertises and markets Bravecto directly to” Plaintiffs and consumers “nationally as a safe chewable tablet for dogs or a topical application that prevents and kills ticks and fleas for up to three months . . . .” (Id. ¶ 3). However, “[b]ecause of the method by which [Bravecto] kills insects,” it “presents a risk of neurological toxicity” when ingested. (Id. ¶ 4). Defendant “failed to adequately disclose” the “significant risk of neurological toxicity” before Plaintiffs purchased Bravecto. (Id. ¶¶ 4-5).
Defendant knew of Bravecto‘s “adverse neurological risks” due to: (1) the way Bravecto is taken—Bravecto is “ingested or applied to animals and absorbed into their blood stream in order to penetrate nervous systems and cause death of insects[;]” and (2) consumer complaints—“consumers issued numerous complaints concerning neurological adverse reactions following use of Bravecto since it was released to the market in 2014” to 2018. (Id. ¶ 29). Despite this, Defendant “misrepresented Bravecto as a safe and effective flea and tick product” and thus, injuring Plaintiffs. (Id. ¶¶ 30, 53).
On December 27, 2019, Plaintiffs filed their initial complaint. (ECF No. 1). On February 28, 2020, Defendant moved to dismiss. (ECF No. 19). On July 2, 2020, Plaintiffs filed their first amended complaint alleging 10 claims. (ECF No. 31) (the “First Amended Complaint“). On August 18, 2020, Defendant moved to dismiss, and Plaintiffs opposed. (ECF Nos. 33-35).
On June 30, 2021, this matter was reassigned to this Court. (ECF No. 48). On July 1, 2021, Plaintiffs filed the Second Amended Complaint (“SAC“) (ECF No. 49) alleging the following 12 claims as to all Plaintiffs: (1) breach of express warranty (Count One); (2) breach of implied warranty (Count Two); (3) violation of New Jersey‘s Consumer Fraud Act (“NJCFA“),
On September 2, 2021, Defendant filed a second motion to dismiss. (ECF No. 58). On October 21, 2021, Plaintiffs filed their opposition. (ECF No. 67). On November 18, 2021, Defendant replied. (ECF No. 72). On June 26, 2024, the Court dismissed Plaintiffs’ Second Amended Complaint in its entirety without prejudice and permitted Plaintiff to file an amended complaint no later than 30 days of the Order. (ECF Nos. 129, 130).6
On August 15, 2024, Plaintiffs filed a Third Amended Complaint alleging the same twelve (12) causes of action as to all Plaintiffs.7 (ECF No. 136).
On November 6, 2024, Defendant filed the instant motion to dismiss. (ECF No. 151). On December 13, 2024, Plaintiffs filed their opposition. (ECF No. 154). On January 13, 2025, Defendant replied. (ECF No. 155). Defendant‘s motion to dismiss is now ripe for consideration.
II. LEGAL STANDARD
A. Rule 12(b)(6)
To determine whether a complaint is sufficient, the Third Circuit requires a three-part inquiry: (1) the court must first recite the elements that must be pled in order to state a claim; (2) the court must then determine which allegations in the complaint are merely conclusory and therefore need not be given an assumption of truth; and (3) the court must “assume the[] veracity” of well-pleaded factual allegations and ascertain whether they plausibly “give rise to an entitlement for relief.” Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (citations omitted).
B. Rule 9(b)
Accordingly, “[t]o satisfy the particularity standard, ‘the plaintiff must plead or allege the date, time and place of the alleged fraud or otherwise inject precision or some measure of substantiation into a fraud allegation.‘” Feingold v. Graff, 516 F. App‘x 223, 226 (3d Cir. 2013) (citing Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007)). This heightened standard is designed to “ensure that defendants are placed on notice of the precise misconduct with which they are charged, and
III. DISCUSSION
A. The Law of The Case Doctrine
As a threshold matter, Defendant asks the Court to revisit numerous holdings and findings from Judge Vasquez‘s prior opinion. (ECF. No. 41) (Def.‘s Br. at 10 & n.6, 11-13, 20 & n.8, 21-24, 27-28, 31-32, 33-35). Defendant contends “[n]othing about the law of the case doctrine prevents this Court from deciding this motion to dismiss differently from how Judge Vasquez ruled on the motion to dismiss a prior complaint.” (Def.‘s Br. at 10 (citing United States ex rel. Petratos v. Genentech Inc., 855 F.3d 481, 493 (3d Cir. 2017))).
The law of the case doctrine precludes review of legal issues previously decided. See In re City of Phila. Litig., 158 F.3d 711, 717-18 (3d Cir. 1998); see also Hamilton v. Leavy, 322 F.3d 776, 786-87 (3d Cir. 2003) (“The law of the case doctrine ‘limits relitigation of an issue once it has been decided’ in an earlier stage of the same litigation.” (quoting In re Continental Airlines, 279 F.3d 226, 232 (3d Cir. 2002))). The doctrine “only applies within the same case,” Farina v. Nokia Inc., 625 F.3d 97, 117 n.21 (3d Cir. 2010), and affects only issues that were “expressly” or “necessarily resolved” by prior decisions in the same case, PDX N., Inc. v. Comm‘r N.J. Dep‘t of Lab. & Workforce Dev., 978 F.3d 871, 881 n.10 (3d Cir. 2020).
The doctrine is designed to “promote finality, consistency, and judicial economy.” Hamilton, 322 F.3d at 787; see also Petratos, 855 F.3d at 493 (The law of the case doctrine is “a judicial rule of practice meant to ‘maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.‘“) (citation omitted).
“It is well-established that a court must have directly addressed the contested issue in a prior opinion for the law of the case doctrine to apply.” Marina Group LLC v. Shirley May International US Inc., No. 21-18733, 2024 WL 3325993, at *4 (D.N.J. July 8, 2024) (collecting cases); see also Waterfront Renaissance Assocs. v. City of Phila., 701. F. Supp. 2d 633, 639 (E.D. Pa. 2010) (stating that “[t]he law of the case doctrine applies ‘to issues expressly decided by a court in prior rulings . . . .‘“) (quoting Bolden v. Se. Pa. Transp. Auth., 21 F.3d 29, 31 (3d Cir. 1994))).
Here, Defendant advances many of the same arguments in its present motion already squarely addressed by Judge Vasquez, including, inter alia, moving to dismiss Plaintiffs’ express
Accordingly, the Court will first address Plaintiffs’ express warranty as it relates to “safe and proven safe” as an actionable warranty. Next, the Court will address whether Plaintiffs’ NJCFA claim is subsumed under the NJPLA and if Plaintiffs adequately allege a NJCFA claim. The Court will then proceed to analyze whether Plaintiffs state a claim based on the various other consumer fraud statutes pled.
Defendant moves to dismiss Plaintiffs’ express warranty claim because Plaintiffs do not allege that they read such warranty before their purchases and even if Plaintiffs had, it cannot support an express warranty claim as a matter of law. (Def.‘s Br. at 8-11). Plaintiffs argue they adequately allege an express warranty claim and that Defendant‘s arguments have already been rejected by Judge Vasquez. (Pl.‘s Br. at 8-11). The Court agrees with Plaintiffs.
To state a claim for breach of express warranty: “(1) that Defendant made an affirmation, promise or description about the product; (2) that this affirmation, promise or description became part of the basis of the bargain for the product; and (3) that the product ultimately did not conform to the affirmation, promise or description.” Snyder v. Farnam Companies, Inc., 792 F. Supp. 2d 712, 721 (D.N.J. 2011) (citing
Plaintiffs sufficiently allege an affirmation promise or description. The TAC states that “Defendant‘s central marketing theme for Bravecto, which is directed to consumers through advertising on television, online, and in print (including displays in veterinarian‘s offices), is that it is purportedly ‘safe’ and ‘proven safe . . . .‘” (TAC ¶ 91). Plaintiffs further allege they “viewed [Bravecto‘s] packaging and materials [and in Ippolito‘s case a television commercial] and the display featuring Bravecto in [their] veterinarian‘s office at the time of [their] purchase . . . .” (Id. at ¶¶ 23-26; 105). Plaintiffs further contend that Bravecto did not conform to the affirmation or
Defendant contends that the Third Circuit has held “safe and proven safe” is not an actionable warranty, citing In re Avandia Mktg. Sales Practice & Prods. Liab. Litig., 588 Fed. Appx. 171 (3d Cir. 2014). However, Judge Vasquez previously found that ”Avandia is distinguishable” and denied Defendant‘s motion to dismiss Plaintiffs’ express warranty claim on such a basis. (Vazquez Op. at 18). Notwithstanding, Defendant asserts “[n]othing about the law of the case doctrine prevents this Court from deciding this motion to dismiss differently from how Judge Vasquez ruled on the motion to dismiss a prior complaint.” (Def.‘s Br. at 10 n.6). Even so, this Court‘s own interpretation of Avandia comports with Judge Vasquez—Avandia is distinguishable.
The Third Circuit stated “we conclude the statement that Avandia is ‘safe and effective’ for its intended use contained on its label disclosing contraindications, risk factors, and potential side effects of the drug is not sufficient as a matter of law to state a New Jersey express warranty claim . . . .” In re Avandia, 588 Fed. Appx. at 174. The Avandia Court‘s discussion of analogous sister States’ express warranty statutes and jurisprudence underscored that courts “refused to find the words ‘safe and effective’ to create an express warranty in the absence of representations that a drug was free from all harmful side effects or was absolutely harmless.” Id. at 177 (emphasis added).
Contrary to Defendant‘s contention otherwise, Avandia‘s label and Bravecto‘s label are different. “The Avandia label disclose[d] contraindications, risk factors, and potential side effects of taking the drug, thereby warning it may not be safe under all circumstances for every person.”
Accordingly, Count One survives.
C. Plaintiffs’ NJCFA Claim
i. Whether Plaintiffs’ NJCFA Claim is Subsumed Under The NJPLA
Defendant argues Plaintiffs’ NJCFA claim is subsumed by the NJPLA, and that Plaintiffs fail to state a viable NJCFA claim. (Def.‘s Br. 15-17). Plaintiffs oppose. (Pls.’ Br. at 15-18).
The NJPLA‘s language represents “a clear legislative intent that . . . the [NJ]PLA is paramount when the underlying claim is one for harm caused by a product.” Sinclair v. Merck & Co., 195 N.J. 51, 948 A.2d 587, 596 (N.J. 2008); see also Arlandson v. Hartz Mountain Corp., 792 F. Supp. 2d 691, 703 (D.N.J. 2011) (citing Sinclair).
“As explained by the Third Circuit, the NJPLA ‘effectively creates an exclusive statutory cause of action for claims falling within its purview.‘” Greisberg v. Bos. Sci. Corp., No. 19-12646, 2020 WL 278648, at *4 (D.N.J. Jan. 17, 2020) (quoting Repola v. Morbark Indus., Inc., 934 F.2d 483, 492 (3d Cir. 1991)).
Recognizing the NJPLA‘s broad scope, “New Jersey federal and state courts have consistently dismissed product liability-related claims based on common law theories when at the heart of those theories is the potential ‘harm caused by a product.‘” Hindermyer, 419 F. Supp. 3d at 818 (citing cases). “In addition, courts have found that the NJPLA subsumes common law . . . claims so long as the harm alleged was caused by a product.” Id. at 819 (citing cases).
“To determine whether the NJPLA subsumes a particular claim, the court must ascertain the type of harm that a plaintiff is alleging; namely, whether the harm involves property damage or bodily injury caused by the culprit product, or whether the harm was solely to the defective product itself.” Guardavacarro v. Home Depot, No. 16-8796, 2017 WL 3393812, at *4 (D.N.J. Aug. 8, 2017). Put another way, “courts do not simply determine whether or not the victim‘s injury
“However, when the essential nature of the claim is not that of a [NJ]PLA claim, the plaintiff may maintain a separate cause of action.” Guardavacarro, 2017 WL 3393812, at *4 (internal quotation marks omitted) (quoting Volin v. Gen. Elec. Co., 189 F. Supp. 3d 411, 418 (D.N.J. 2016)).
In Sun Chemical Corp. v. Fike Corp., the New Jersey Supreme Court considered “in response to a question of law certified by the United States Court of Appeals for the Third Circuit . . . whether ‘a [CFA] claim [can] be based, in part or exclusively, on a claim that also might be actionable under the [PLA].‘” 243 N.J. 319, 235 A.3d 145, 148 (N.J. 2020) (second alteration in original). The Sun Chemical plaintiff bought defendant‘s product to prevent potential explosions in its dust collection system. Sun Chemical, 235 A.3d at 149. When selling the product, the defendant made several affirmative misrepresentations, namely, that the product would in fact prevent explosions. Id. The product later malfunctioned, exploded, and caused personal injury and property damage. Id.
The NJCFA and the NJPLA “are remedial statutes that target different wrongs, address distinct types of harm, and provide for divergent remedies.” Id. at 148. Specifically, the PLA “intended to protect users from harm caused by defective products” and “imposes liability upon
Critically, the New Jersey Supreme Court made clear that “nothing about the [NJ]PLA prohibits a claimant from seeking relief under the [NJ] CFA for deceptive, fraudulent, misleading, and other unconscionable commercial practices in the sale of the product.” Id. at 155. The court further noted:
Indeed, the [NJ]CFA is expressly in addition to and cumulative of any other right, remedy or prohibition accorded by the common law or statutes of this State. Said differently, if a claim is based on deceptive, fraudulent, misleading, and other unconscionable commercial practices, it is not covered by the [NJ]PLA and may be brought as a separate [NJ] CFA claim.
Id. (internal quotations omitted). The Sun Chemical Court underscored that “[NJ]PLA and [NJ]CFA claims may proceed in separate counts of the same suit, alleging different theories of liability and seeking dissimilar damages.” Id. “[T]he presumptive application of the [NJ] CFA is overcome only if ‘a direct and unavoidable conflict exists between application of the [NJ] CFA and application of the other regulatory scheme or schemes.‘” Id.
The Sun Chemical Court further noted: “[i]t is the nature of the claims brought, and not the nature of the damages sought, that is dispositive of whether the PLA precludes the separate causes of action,” id. at 148; and the Court held: “[i]f a claim is premised upon a product‘s manufacturing,
Importantly, the Sun Chemical court also held “PLA and CFA claims may proceed in separate counts of the same suit,” so long as they “alleg[e] different theories of liability and seek[] dissimilar damages.” Id. The Sun Chemical court instructed that, to determine whether the purported claim pleads a separate count, a court must “determine whether the theory pled on the facts presented, although denoted [as a CFA claim] [i]s in fact one of the three codified theories made exclusively actionable under the PLA.” If so, then the claim is “supplanted by the PLA” because “claims that sound in the type of products liability actions defined in the PLA must be brought under the PLA.” Id.
Whether Plaintiffs’ NJCFA claim is subsumed under the NJPLA is a close question.10 In re Valsartan, Losartan, & Irbesartan Prods. Liab. Litig., 2021 WL 364663, *9 (D.N.J. Feb. 3, 2021)
Here, some of the allegations in the NJCFA claim could be construed as a representation-based claim—they are based on allegations that Defendant made assertions about the safety of Bravecto and that these assertions of safety induced Plaintiffs to purchase Bravecto. (See TAC ¶¶ 33-34 (alleging Defendant misrepresented side effects were mild, “[t]he most common side effects are mild and transient gastrointestinal effects . . . . Defendant touted that its product caused consumers ‘a lot less worry’ than normal flea and tick medications . . . “[s]ide effects may include vomiting, decreased appetite, diarrhea, lethargy, excessive thirst and flatulence.“); ¶¶ 50-51, 57, 68, 70-71, 78-79, 108-110 (alleging defendant tried to minimize consumer complaints of serious side effects, “While Defendant knew of these safety risks, it did not disclose them to consumers and their veterinarians. In contrast, it misrepresented Bravecto as a ‘safe’ and ‘proven safe’ flea and tick product“); ¶¶ 89-101 (alleging Defendant‘s marketing misrepresented safety of Bravecto, ¶ 92 marketing materials claim Bravecto is “FDA approved and proven safe for both dogs and cats for 12 weeks“), ¶ 97 (Defendant‘s website states that “[Bravecto] has a wide margin of safety in
However, other allegations in the NJCFA claim are properly construed as a failure to warn claim. (See TAC ¶ 19 (“By omitting and failing to disclose the dangers that Bravecto poses . . . Defendant defrauded Plaintiffs . . . deprived them of the benefit of their bargain . . . .“); ¶ 102 (“At no time during the time period relevant to this action did Defendant‘s Bravecto packaging provide adequate warning of possible adverse neurological reactions.“); ¶ 103 (“Defendant‘s Bravecto packaging insert also omitted these risks . . . .“); ¶ 198 (alleging that “misrepresentations” include “fail[ure] to provide adequate warning“). These allegations are subsumed under the NJPLA. See, e.g., Arlandson, 792 F. Supp. 2d at 703 (finding plaintiffs NJCFA claim for “spot on” flea and tick product was subsumed under the NJPLA because “the issue underlying [p]laintiffs’ claims is that
Accordingly, Plaintiffs’ NJCFA claim to the extent it alleges misrepresentations is not subsumed under the NJPLA.
ii. Plaintiffs Fail to Plausibly Allege a NJCFA Claim Based on Express Misrepresentations
The NJCFA “targets unlawful sales and advertising practices designed to induce customers to purchase merchandise or real estate.” Sun Chemical, 981 F.3d at 236 (cleaned up). As such, the NJCFA prohibits:
The act, use or employment by any person of any commercial practice that is unconscionable or . . . misrepresentation, or the knowing concealment, . . . or omission of any material fact with intent that others rely upon . . . in connection with the sale or advertisement of any merchandise . . . whether or not any person has in fact been misled, deceived or damaged thereby . . . .
To state an NJCFA claim, Plaintiffs must allege: “(1) unlawful conduct; (2) an ascertainable loss; and (3) a causal relationship between the unlawful conduct and the ascertainable loss.” Francis E. Parker Mem‘l Home Inc., 945 F. Supp. 2d at 558 (citation omitted). The NJCFA “does not require proof that a consumer has actually relied on a prohibited act in order to recover.” Int‘l Union Operating Eng‘rs Loc. No. 68 Welfare Fund v. Merck & Co., 192 N.J. 372, 929 A.2d 1076, 1087 (2007).
“Claims under the [NJ]CFA are required to meet the particularity requirement of
Unlawful conduct means “affirmative acts and knowing omissions,” as well as “violations of regulations promulgated under” the CFA. Francis E. Parker Mem‘l Home Inc., 945 F. Supp. 2d at 558 (citations omitted). “[C]ourts have derived three broad categories of unlawful conduct: affirmative acts, knowing omissions, and regulatory violations.” Mickens v. Ford Motor Co., 900 F. Supp. 2d 427, 436 (D.N.J. 2012) (citing Frederico, 507 F.3d at 202).
To state a NJCFA claim based on an affirmative act, the plaintiff need not show the defendant intended to deceive. Cox, 647 A.2d at 462. However, when a NJCFA claim is based on an omission, the plaintiff must show some form of intent on part of the defendant. See Sarlo v. Wells Fargo Bank, N.A., 175 F. Supp. 3d 412, 426 (D.N.J. 2015) (explaining that “an omission or failure to disclose a material fact, if accompanied by knowledge and intent” is actionable under the NJCFA); Cox, 647 A.2d at 462 (“[W]hen the alleged consumer fraud consists of an omission, the plaintiff must show that the defendant acted with knowledge, and intent is an essential element of the fraud.“). “Implicit in the showing of an omission is the underlying duty on the part of the defendant to disclose what he concealed to induce the purchase.” Arcand v. Brothers Int‘l Corp., 673 F. Supp. 2d 282, 297 (D.N.J. 2009).
“The CFA does not define what constitutes an ‘ascertainable loss,’ and there is no legislative history ‘that sheds direct light on those words.‘” Barrows v. Chase Manhattan Mortg. Corp., 465 F. Supp. 2d 347, 361 (D.N.J. 2006) (citing Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 872 A.2d 783, 792 (N.J. 2005)). “The New Jersey Supreme Court has instructed, ‘To give effect to the legislative language describing the requisite loss for private standing under the CFA, . . . a private plaintiff must produce evidence from which a factfinder could find or infer that the plaintiff suffered an actual loss.‘” Id. (citing Thiedemann, 872 A.2d at 792). “The certainty implicit in the concept of an ascertainable loss is that it is quantifiable or measurable, and in order to raise a genuine dispute, the plaintiff must proffer evidence of loss that is not hypothetical or illusory.” Id. (quotation marks omitted) (citing Thiedemann, 872 A.2d at 792). “In cases involving breach of contract or misrepresentation, either out-of-pocket loss or a demonstration of loss in value will suffice to meet the ascertainable loss hurdle and will set the stage for establishing the measure of damages.” Thiedemann, 872 A.2d at 792.
Allegations that a product is worth less because of a defect satisfies the ascertainable loss element because such a loss is quantifiable. See Bang v. BMW of N. Am., LLC, No. 15-6945, 2016 WL 7042071, at *6 (D.N.J. Dec. 1, 2016) (finding the plaintiffs adequately pled ascertainable loss because they alleged that the purchased vehicles are worth less as a result of the vehicles’ purported defects); Marcus v. BMW of N. Am., LLC, No. 08-5859, 2010 WL 4853308, at *11 (D.N.J. Nov. 19, 2010) (finding ascertainable loss adequately pled where the plaintiffs “got less than what they expected“), rev‘d on other grounds, Marcus v. BMW of North Am., 687 F.3d 583 (3d Cir. 2012).
The TAC alleges Defendant misrepresented the safety of Bravecto and knowingly omitted material facts about the risk of neurological side-effects. (TAC ¶¶ 89-105). However, Plaintiffs still have not pled with particularity facts that demonstrate Defendant made affirmative
Accordingly, Count Three is dismissed without prejudice.14
D. Plaintiffs Adequately Allege a CUTPA Claim
Defendant moves to dismiss Plaintiffs’ CUTPA claim because neither Plaintiff Palmieri or Moraski alleges that they read “safe” or “proven safe” on Defendant‘s website prior to purchase. (Def.‘s Br. at 19-20). Plaintiffs oppose. (Pls.’ Br. at 22-24). The Court agrees with Plaintiffs.
The CUTPA provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”
“To state a claim under CUTPA, a plaintiff must plead that she (1) suffered an ascertainable loss of money or property, (2) that was caused by, (3) an unfair method of competition or an unfair
“The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief . . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation.” Artie‘s Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 947 A.2d 320, 329-30 (2008) (internal quotation marks omitted). The ascertainable loss requirement does not, however, limit CUTPA to “providing redress only for consumers who can put a precise dollars and cents figure on their loss.” Hinchliffe v. Am. Motors Corp., 184 Conn. 607, 440 A.2d 810, 816 (1981).
“A loss need not be significant to be ascertainable.” Davis v. Angelcare USA, LLC, 727 F. Supp. 3d 99, 133 (D. Conn. 2024). Under CUTPA, “the private loss indeed may be so small that the common law likely would reject it as grounds for relief, yet it will support an action under the statute.” Tanasi v. CitiMortgage, Inc., 257 F. Supp. 3d 232, 276 (D. Conn. 2017) (citation omitted); Hinchliffe, 440 A.2d at 815 (“CUTPA provides an action more flexible and a remedy more complete than did the common law.“).
To state a claim under CUTPA, a plaintiff must “establish both that the defendant has engaged in a prohibited act and that, ‘as a result of’ this act, the plaintiff suffered an injury.” Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 692 A.2d 709, 712 (1997) (citation omitted) (emphasis in original). “The language ‘as a result of’ requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff.” Id. “[M]ere ‘but for’ causation is not sufficient to support a CUTPA claim.” Id. However, causation does not require reliance. See Meyers v. Cornwell Quality Tools, Inc., 41 Conn. App. 19, 674 A.2d 444, 453 (1996) (“It is well established
Here, Plaintiffs have alleged an ascertainable loss in the form of a discrepancy between the product they believed they purchased and the product they, in fact, received. See, e.g., Davis, 727 F. Supp. 3d at 133 (finding plaintiffs plead ascertainable loss by alleging discrepancy between what they believed they purchased and purchased product); Gervais v. Riddle & Assocs., P.C., 479 F. Supp. 2d 270, 280 (D. Conn. 2007) (holding that “[c]ertain language in Connecticut case law may suggest that CUTPA‘s ascertainable loss requirement is satisfied simply by a deprivation of the benefit of plaintiff‘s bargain“); Hinchliffe, 440 A.2d at 814 (“Whenever a consumer has received something other than what he bargained for, he has suffered a loss of money or property. That loss is ascertainable if it is measurable even though the precise amount of the loss is not known.“).
Contrary to Defendant‘s contention otherwise, the TAC is not limited to Plaintiffs “safe” and “proven safe” allegation as it relates to the CUTPA claim. Indeed, the TAC now includes Plaintiff Palmieri‘s Bravecto packaging. (TAC ¶ 124). Additionally, Plaintiffs allege that “Defendant‘s central marketing theme” depicted Bravecto as safe without disclosing the risk of neurological adverse reactions (TAC ¶ 91), and that Defendant minimized consumer complaints, compensated consumers, and engaged in marketing tactics to “rebut concerns that Bravecto caused neurological adverse events.” (Id. at ¶¶ 65-74, 139).15 Plaintiffs further allege that Defendant‘s
“[A]t this stage, ‘the [c]ourt need not and should not determine as a matter of law whether [the defendant‘s] conduct, as alleged, actually violated CUTPA. Instead, the proper inquiry is whether [the plaintiff] has alleged sufficient facts to raise a reasonable expectation that discovery will reveal evidence supporting the claim.‘” Davis, 727 F. Supp. 3d at 135 (alterations in the original) (citing Edwards v. N. Am. Power & Gas, LLC, 120 F. Supp. 3d 132, 142 (D. Conn. 2015) (cleaned up)).
Accordingly, Plaintiffs have pled facts sufficient support a claim under CUTPA on behalf of the Connecticut subclass. Count Five survives.
E. FUDPTA
Defendant asserts the FUDPTA does not apply to Plaintiff Ippolito‘s claim because it does not apply to a claim for . . . [personal injuries or] damage to property other than the property that is the subject of the consumer transaction.” (Def.‘s Br. at 23 (citing
FUDPTA applies to Plaintiff Ippolito‘s claim. Davis v. Main Street Family Pharmacy, LLC, 2016 WL 9051172, at *1-2 (N.D. Fla. May 19, 2016) (economic damages under FDUPTA where plaintiff alleged a worthless steroid injection that also caused physical harm); Smith v. Wm. Wrigley Jr. Co., 663 F. Supp. 2d 1336, 1340-41 (S.D. Fla. 2009) (finding valid FDUTPA claim based on false advertisements for chewing gum); Delgado v. J.W. Courtesy Pontiac GMC-Truck, Inc., 693 So. 2d 602, 606 (Fla. 2d DCA 1997) (noting that FDUTPA provides for recovery of “economic damages related solely to a product or service purchased in a consumer transaction infected with unfair or deceptive trade practices or acts.“).
To establish a FDUPTA violation, a plaintiff must prove three elements: (1) “a deceptive act or unfair practice; (2) causation; and (3) actual damages.” Carriuolo v. Gen. Motors Co., 823 F.3d 977, 986 (11th Cir. 2016); see also Dzielak v. Whirlpool Corp., 26 F. Supp. 3d 304, 340 (D.N.J. 2014) (citation omitted).17
Courts use an objective test to determine whether an act is deceptive under FDUTPA, and the plaintiff must show that “the alleged practice was likely to deceive a consumer acting reasonably in the same circumstances.” Carriuolo, 823 F.3d at 983-84 (quoting State, Office of the Att‘y Gen. v. Com. Com. Leasing, LLC, 946 So. 2d 1253, 1258 (Fla. Dist. Ct. App. 2007)). “A party
To establish an unfair practice, the plaintiff must show that it is one that “offends established public policy” and one that is “immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003) (quoting Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489, 489 (Fla. Dist. Ct. App. 2001)).
“[T]he Florida Supreme Court teaches that a deceptive act occurs when there is a representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer‘s detriment.” Gavron v. Weather Shield Mfg., Inc., 819 F. Supp. 2d 1297, 1302 (S.D. Fla. 2011) (cleaned up). Plaintiff Ippolito alleges a deceptive act; she alleges that Defendant misrepresented Bravecto as safe in a television commercial and that Bravecto‘s packaging omitted any warning about adverse neurological reactions. (TAC ¶ 25). Viewing such an advertisement objectively, “the alleged practice was likely to deceive a consumer acting reasonably in the same circumstances.” Carriuolo, 823 F.3d at 983-84 (citation omitted); Fitzpatrick v. Gen. Mills, Inc., 635 F.3d 1279, 1283 (11th Cir. 2011) (holding that the element of causation is met when the alleged misrepresentations would have deceived an objectively reasonable person.); PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003) (“[A] deception occurs if there is a representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer‘s detriment.“) (citations and quotations omitted). Additionally, contrary to Defendant‘s assertion, Ippolito alleges she viewed the Bravecto commercial and packaging prior to purchasing Bravecto. (TAC ¶ 25 (“Ms. Ippolito
Moreover, Defendant‘s reliance on Guerrero v. Target Corp., is distinguishable. In Guerrero, “Plaintiff‘s FDUTPA claim [was] premised on the fact that the honey sold by [d]efendant did not contain pollen as required by Florida‘s Honey Standard. 889 F. Supp. 2d 1348, 1355 (S.D. Fla. 2012). However, “[t]he [c]omplaint fail[ed] to provide any more specific details regarding how [p]laintiff kn[e]w[] that [d]efendant‘s honey did not contain pollen.” Id. In contrast, here, Plaintiffs allege a significant amount of information, which taken as true, demonstrates their basis for averring Bravecto caused neurological issues, and that Defendant despite being aware of this, omitted such risk from its warning. (See, e.g., TAC ¶¶ 89-105, 290-299).
As Florida courts have noted, the causation element requires “that an objective[ly] reasonable person would have been deceived.” Fitzpatrick, 635 F.3d at 1283. Plaintiff Ippolito adequately pleads causation-but for Defendant‘s Bravecto misrepresentation and omission regarding adverse neurological risks she “would not have given the Bravecto product to her pet, or would have paid significantly less for it, if Defendant had disclosed such risks.” (TAC ¶ 25; see also TAC ¶ 300 (she “would not have purchased Bravecto or paid as much as [she] did for it.“)). Vazquez v. General Motors, LLC, 17-22209, 2018 WL 447644, at *7 (S.D. Fla. Jan. 16, 2018) (actual reliance is not required under FDUTPA and rejecting argument that Plaintiffs fail[ed] to plead causation because they fail[ed] to allege that they actually saw the allegedly deceptive advertisements and that seeing the advertisements caused them to purchase their vehicles.“); Carriuolo, 823 F.3d at 985-86. Cf. Hennegan Co. v. Arriola, 855 F. Supp. 2d 1354, 1361 (S.D. Fla. 2012) (without evidence that plaintiff would not have been injured but for defendant‘s acts,
Under the FDUTPA, actual damages “are measured according to ‘the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties.‘” Carriuolo, 823 F.3d at 986 (quoting Rollins, Inc. v. Heller, 454 So. 2d 580, 585 (Fla. Dist. Ct. App. 1984)). A plaintiff, however, cannot state a cause of action under FDUTPA if the consumer fails to plead that they suffered actual damages. Macias v. HBC of Florida, Inc., 694 So. 2d 88, 90 (Fla. Dist. Ct. App. 1997) (holding that plaintiff failed to state a cause of action under FDUTPA as she suffered no actual damages and affirming dismissal of complaint with prejudice). Plaintiff Ippolito alleges she overpaid for Bravecto and thus, pleads actual damages. (TAC ¶¶ 25, 300).
At this juncture, these allegations satisfy Rule 9(b) and plausibly allege a FDUTPA claim. See In re Horizon Organic Milk Plus DHA Omega-3 Mktg. & Sales Prac. Litig., 955 F. Supp. 2d 1311, 1333 (S.D. Fla. 2013) (“Plaintiffs’ allegations . . . that they would not have purchased the products but for WhiteWave‘s misrepresentations, . . . that they were damaged in the amount of
Accordingly, Count Ten survives.
F. ICFA and IUDTPA
i. ICFA
The ICFA, “protect[s] consumers, borrowers, and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 739 (7th Cir. 2014) (quoting Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir. 2010)).
To state a claim under the ICFA, a plaintiff must allege: “(1) that the defendant engaged in a deceptive or unfair practice; (2) with the intent that the plaintiff (or others) rely on the deception; (3) that the act occurred in the course of trade or commerce; and (4) that the deception caused actual damages.” Kahn v. Walmart Inc., 107 F.4th 585, 598 (7th Cir. 2024).
Plaintiff Gordon merely alleges that she “viewed Defendant‘s packaging and materials and the display featuring Bravecto in her veterinarian‘s office . . . that represented the products as safe and effective flea and tick mediation and . . . did not disclose any risk of neurological adverse reactions.” (TAC ¶ 24). This allegation lacks the heightened particularity required under
Accordingly, Count Six is dismissed without prejudice.19
ii. IUDTPA
Defendant argues Plaintiff Gordon‘s request for injunctive relief pursuant to the IUDTPA should be dismissed because she fails to allege future harm. (Def.‘s Br. at 30). Plaintiff Gordon does not appear to respond to this argument. (Pls.’ Br. at 32-33). The Court agrees with Defendant.
“The IUDTPA only allows consumers to sue for injunctive relief, and to state a claim under that Act, plaintiffs must allege a likelihood of future harm[.]” In re Fluidmaster, Inc., 149 F. Supp. 3d 940, 961 (N.D. Ill. 2016). Put another way, the IUDTPA applies only to persons likely to be damaged by the deceptive trade practice of another. Id.
Since Plaintiff Gordon is now aware of Bravecto‘s risk of seizures she is not likely to be harmed by such misrepresentation in the future; additionally, the TAC acknowledges Bravecto‘s label and website now discloses such risk. (TAC ¶¶ 24, 124-26). See Neubauer v. Continental Mills, Inc., No. 24-01160, 2025 WL 870139, at *8 (S.D. Ill. March 20, 2025) (dismissing IUDTPA claim because plaintiff “is now aware of alleged deception . . . she is not likely to be harmed by such misrepresentation in the future.” (citing Camasta, 761 F.3d at 740 (“However, past exposure
Accordingly, Count Seven is dismissed with prejudice.
G. DTPA
Defendant argues Plaintiff Reeves’ DTPA claim should be dismissed for failure to plead reliance on any alleged fraudulent statement by Defendant. (Def.‘s Br. at 30-31). Plaintiffs oppose. (Pls.’ Br. at 33-35).
The Texas DTPA “shall be liberally construed and applied to promote its underlying purposes,” which include “protect[ing] consumers against false, misleading, or deceptive business practices.”
To state a claim under the DTPA, a plaintiff must allege: “(1) the plaintiff is a consumer; (2) the defendant engaged in false, misleading, or deceptive acts; and (3) these acts constituted a producing cause of the consumer‘s damages.” In re Frazin, 732 F.3d 313, 323 (5th Cir. 2013) (quotation omitted).
Courts have also interpreted the Texas DTPA as containing a reliance element when misrepresentation is alleged. Wu v. Lumber Liquidators, Inc., No. 20-00765, 2024 WL 3160554, at *15 (Tex. App. June 25, 2024).
i. Section 17.50(a)(1), False, Misleading, or Deceptive Act or Practice
Plaintiff Reeves alleges she viewed “Bravecto‘s packaging and materials and the display featuring Bravecto in her veterinarian‘s office that represented the products as safe and effective . . . .” (TAC ¶ 27). As with several of the other consumer fraud statutes, such an allegation fails to satisfy the particularity requirement of
Additionally, it does not appear that the TAC cures Judge Vasquez‘s noted deficiency that Plaintiff Reeves “allege that she relied on Intervet‘s alleged misrepresentations in deciding whether to purchase Bravecto at the price she paid.” (Vasquez Op. at 38).21
ii. Section 17.50(a)(3), Unconscionable Action
To plead a cause of action for unconscionable acts under the DTPA, a plaintiff must allege that the defendant engaged in an “unconscionable action or course of action” that was “a producing cause of economic damages or damages for mental anguish.”
Notwithstanding Plaintiffs’ 17.50(a)(1) claim, Plaintiff Reeves has cured Judge Vasquez‘s identified detrimental reliance deficiency. (Vasquez Op. at 38-39) (See TAC ¶ 27 (“These representations about Bravecto and the absence of any warning about neurological adverse reactions were a substantial factor in her decision to purchase Bravecto and pay the price she paid for it.“); see also ¶ 221 (“Plaintiff and Texas Subclass Members acted reasonably in relying on Intervet‘s misrepresentations and omissions, the truth of which they could not have discovered. Intervet‘s misrepresentations and omissions were a substantial factor in Plaintiff and the Texas Subclass Members’ decision to purchase Bravecto at the price they did.“)). See Kumar, 750 F. Supp. 3d at 791; Danny Darby Real Estate, Inc. v. Jacobs, 760 S.W.2d 711, 716 (Tex. App.—Dallas 1988, writ denied) (“[A]bsent Realtor‘s incorrect representations that the property was eligible for Board financing, Buyer would not have entered into a contract to purchase the property, nor would he have made the improvements which he subsequently lost.“). Thus, Plaintiff Reeves’ DTPA 17.50(a)(3) claim survives.
Accordingly, Count Nine is dismissed in part without prejudice.
IV. CONCLUSION
For the reasons set forth above, Defendants’ motion to dismiss (ECF No. 151) is GRANTED IN PART. Counts Three, Six, and Nine (in part, as to Plaintiff Reeves’ DTPA
DATED: June 30, 2025
JULIEN XAVIER NEALS
United States District Judge
Notes
Traditional products liability claims arise out of the situation where a product fails to perform as would ordinarily be expected in the absence of any specific promises made by the seller or
2009 WL 4282644, at *3. Accord. Francis E. Parker Mem‘l Home, Inc. v. Georgia-Pacific LLC, 945 F. Supp. 2d 543, 552-56, 556 n.5 (D.N.J. 2013).