IN RE: PRIME ENERGY CONSUMER LITIGATION
Case 1:24-cv-03568-KPF
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
July 31, 2025
Document 19
KATHERINE POLK FAILLA, District Judge
24 Civ. 2657 (KPF); This Document Relates to All Actions
KATHERINE POLK FAILLA, District Judge:
For those consumers seeking a jolt of energy in caffeinated-beverage form, does the inclusion of a smidgen more caffeine than advertised amount to a deceptive practice? For Plaintiffs Lara Vera, Jemirria Thompson, and Bryant Preudhomme (“Plaintiffs“), the answer is yes: Plaintiffs bring this proposed class action against Defendant Prime Hydration LLC (“Defendant“) asserting violations of various state consumer fraud statutes (collectively, the “State Consumer Fraud Acts“); violations of New York General Business Law (“GBL“)
Before the Court is Defendant‘s motion to dismiss Plaintiffs’ Consolidated Class Action Complaint (the “CAC“) for failure to state a claim pursuant to
BACKGROUND1
A. Factual Background
Plaintiffs are citizens and residents of New York. (CAC ¶¶ 5-7). Defendant “formulates, manufactures, advertises, and sells” the Products, as well as non-caffeinated hydration drinks, throughout the country, including in New York. (Id. ¶¶ 1, 4, 12). The label on the back of each of the Products has the following language: “CONTAINS: 200mg OF CAFFEINE PER 12 OZ SERVING[.]” (Id. ¶ 20). Likewise, on the side of the Products’ packaging, there is an icon of a lightning bolt with the language: “200mg CAFFEINE[.]” (Id.). Defendant also advertises the caffeine content as such on its website and “through third-party retail[e]r websites like Amazon.com.” (Id. ¶ 19).
Plaintiff Vera received a case of the Products in or around August 2022, which she believes was part of a promotion. (CAC ¶ 5). Subsequently, Plaintiff Vera purchased the Products “several times in 2023” and “paid approximately
In making their respective purchasing decisions, Plaintiffs claim that they relied on Defendant‘s label and representation that the Products contained 200 milligrams of caffeine. (CAC ¶¶ 5-7). However, Plaintiffs aver that “based upon testing commissioned by Plaintiffs’ attorneys, the Products actually contain between 215-225 milligrams of caffeine rather than the advertised 200 milligrams.” (Id. ¶ 21). Plaintiffs allege that they “either paid a price premium” for the Products or “would not have purchased the Products at all” had they known the label “was false and misleading.” (Id. ¶¶ 5-6; see also id. ¶ 7 (“Plaintiff ... was unaware that the Products contained more caffeine than advertised and would not have purchased the Products if that were fully disclosed or would have paid less than he did.“)). Plaintiff Preudhomme further claims that he would purchase the Products in the future “if Defendant (i) lowered the amount of caffeine in the Products; and/or (ii) undertook corrective changes to the packaging.” (Id. ¶ 7).
B. Procedural Background
This litigation commenced on September 29, 2023, when Plaintiff Kyra Drugas filed a class action complaint substantially similar to the operative
Approximately two months later, on April 8, 2024, Plaintiff Vera filed her initial class action complaint (the “Vera Action“) against Defendant on behalf of the putative class. (Dkt. #1). Shortly thereafter, on April 25, 2024, Defendant moved to transfer the Vera Action to this Court, claiming that the Drugas Action was “virtually identical” to the Vera Action. (Dkt. #8 at 1). The case was promptly transferred to the undersigned. (Dkt. #9). At that time, Defendant requested that Plaintiff Vera dismiss the action, “pointing out that Vera‘s only alleged purchases - in June and August of 2022 - were false as Prime Energy was not available for purchase until 2023.” (Dkt. #14 at 1). Instead of dismissing the action, Vera filed an amended class action complaint on May 7,
On May 20, 2024, Defendant sought the Court‘s permission to file a motion to dismiss the Vera FAC. (Dkt. #14). Defendant cited the Court‘s previous permission in the Drugas Action to “move to dismiss a virtually identical complaint” as obviating the need for a pre-motion conference. (Id. at 1). “In view of the unique circumstances of this case,” the Court agreed, permitted the parties to proceed to motion practice without a pre-motion conference, and set a briefing schedule. (Dkt. #17). In accordance with the briefing schedule, Defendant filed its motion to dismiss on June 21, 2024. (Dkt. #19-21).
As briefing began in the Vera Action, Plaintiff Bryant Preudhomme filed a separate complaint against Defendant on May 9, 2024 (24 Civ. 3568 (the “Preudhomme Action“), Dkt. #1), which complaint was “virtually identical” to the Vera FAC (id., Dkt. #12 at 1). On June 14, 2024, Defendant filed a letter motion requesting to transfer the Preudhomme Action to this Court, in view of the fact that the Vera Action was already proceeding before the undersigned. (Id.).
On June 24, 2024, this Court denied without prejudice to renew Defendant‘s motion to dismiss and instead consolidated the Vera Action with
Shortly before that conference, on September 17, 2024, Plaintiffs filed the CAC, the operative pleading in this action. (Dkt. #33). In accordance with the briefing schedule set forth at the October 2 conference, Defendant filed its motion to dismiss the CAC on October 16, 2024. (Dkt. #40-42). Plaintiffs filed their opposition to Defendant‘s motion to dismiss on November 18, 2024. (Dkt. #43). Defendant filed its reply on December 9, 2024, at which point the instant motion was fully briefed. (Dkt. #44).
DISCUSSION
A. Applicable Law
When considering a motion to dismiss under
To survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (“While Twombly does not require heightened fact pleading of specifics, it does require enough facts to nudge plaintiff‘s claims across the line from conceivable to plausible.“) (internal quotation marks omitted) (citing Twombly, 550 U.S. at 570). This requires “more than labels and conclusions” but not “detailed factual allegations.” Twombly, 550 U.S. at 555.
“Where a complaint pleads facts that are ‘merely consistent with’ a defendant‘s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.‘” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Moreover, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Therefore, “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679.
B. Analysis
1. Plaintiffs Fail to State a Claim Under GBL §§ 349 and 350
“The standard for recovery under General Business Law § 350, while specific to false advertising, is otherwise identical to section 349.” Goshen v. Mut. Life Ins. Co. of N.Y., 98 N.Y.2d 314, 324 n.1 (2002). As such, the Court merges its analysis of the two claims. See Cosgrove v. Oregon Chai, Inc., 520 F. Supp. 3d 562, 575 (S.D.N.Y. 2021). To sufficiently plead a claim under either § 349 or § 350, “a plaintiff must allege [i] that the defendant ... engaged in consumer-oriented conduct; [ii] that the conduct was materially misleading; and [iii] that the plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Id. (quoting Weisblum v. Prophase Labs, Inc., 88 F. Supp. 3d 283, 292 (S.D.N.Y. 2015)) (alterations in Cosgrove). Plaintiffs are not required to meet the heightened pleading requirements of
a. Plaintiffs Fail to Allege Materially Misleading Conduct Because They Have Not Sufficiently Alleged That Any Misrepresentation Occurred
The crux of Plaintiffs’ CAC is the sole allegation that, “based upon testing commissioned by Plaintiffs’ attorneys, the Products actually contain between 215-225 milligrams of caffeine rather than the advertised 200 milligrams.” (CAC ¶ 21). Defendant argues that this allegation - with no information regarding “how many cans of the [Products] were tested, when they were manufactured, when and where they were purchased, and how the cans were selected for testing” - is insufficient to permit the Court “to make any inferences regarding the caffeine content” of the Products Plaintiffs allegedly purchased. (Def. Br. 11). The Court agrees.
In Hawkins v. Coca-Cola Company, a sister court in this District confronted a similar issue. 654 F. Supp. 3d 290 (S.D.N.Y. 2023). There, the plaintiff alleged that the defendant had engaged in materially misleading conduct because the product in question was labeled “100% natural flavors,” but, according to the plaintiff, “[l]aboratory analysis concluded th[e p]roduct contain[ed] artificial, DL-Malic Acid instead of natural, L-Malic Acid.” Id. at 296-97. The court found that the “amorphous laboratory analysis” was “a far cry from raising any factually substantiated allegations that the [p]roduct contain[ed] artificial malic acid, rather than natural malic acid.” Id. at 306 (internal quotation marks omitted). Therefore, the court concluded that “the [c]omplaint‘s allegations that the [p]roduct contain[ed] artificial flavors [were] conclusory statements that the Court [wa]s not required to accept.” Id.
Courts in this District have also addressed this issue in various cases challenging food manufacturers’ use of the terms “vanilla” and “natural flavors,” inter alia, in their descriptions or advertising. See, e.g., Myers v. Wakefern Food Corp., No. 20 Civ. 8470 (NSR), 2022 WL 603000 (S.D.N.Y. Mar. 1, 2022) (dismissing the amended complaint); Santiful v. Wegmans Food Mkts., Inc., No. 20 Civ. 2933 (NSR), 2022 WL 268955 (S.D.N.Y. Jan. 28, 2022) (”Santiful I“) (dismissing the first amended complaint); Santiful v. Wegmans Food Mkts., Inc., No. 20 Civ. 2933 (NSR), 2023 WL 2457801 (S.D.N.Y. Mar. 10, 2023) (”Santiful II“) (dismissing the second amended complaint); see also Hawkins, 654 F. Supp. 3d at 303 (collecting cases). As relevant here, in Santiful II, the court offered the following observations in dismissing the plaintiffs’ claims under GBL §§ 349 and 350 for the second time:
To substantiate their allegations, [p]laintiffs included the results of a laboratory analysis, which were interpreted solely by their attorneys, with no support from, or even identification of, the researcher who conducted the analysis, or of any other expert[.] As clearly stated in the [c]ourt‘s [f]irst [o]pinion & [o]rder, [p]laintiffs’ failure to include “information as to the testing methodology, the date, time, or place of the testing, who conducted the testing, and what the exact
product tested was” is “insufficient to support [p]laintiffs’ otherwise conclusory statements as to the ingredients of the [p]roduct.” ... Despite this [c]ourt‘s clear guidance in the [f]irst [o]pinion & [o]rder, [p]laintiffs failed to provide this information regarding the details of their laboratory analysis. Because the presence of ethyl vanillin is supported solely by the results of an unsubstantiated laboratory analysis, this [c]ourt sees no “non-conclusory, substantiated allegations” to suggest ethyl vanillin is present in the [p]roduct[.]
2023 WL 2457801, at *4 (internal citations omitted); see also Myers, 2022 WL 603000, at *4 (“To begin, [p]laintiff claims that the [p]roduct was allegedly subjected to a laboratory test, but she fails to provide any details whatsoever about [what] this laboratory test entailed. She does not, for instance, describe the testing methodology followed, the specific date, time, or place of the testing, who conducted the testing, the qualifications of the testers, etc.“).
The same holds true here. Plaintiffs have failed to provide any supporting information whatsoever regarding the alleged testing, other than that it was “commissioned by Plaintiffs’ attorneys” and allegedly showed that the Products contain 215-225 milligrams of caffeine. (CAC ¶ 21). As this is a mere conclusion, it is “not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679; see also Hawkins, 654 F. Supp. 3d at 306 (finding that plaintiff‘s allegations based on an “amorphous laboratory analysis” were “conclusory statements that the [c]ourt [wa]s not required to accept“); Santiful II, 2023 WL 2457801, at *4 (finding “results of an unsubstantiated laboratory analysis” to be neither non-conclusory nor substantiated allegations). Here, Plaintiffs’ entire case is premised on the conclusory statement that the Products actually
Plaintiffs contend that the so-called “Vanilla Cases,” including Santiful I and Myers, are inapposite to the instant case. (Pl. Opp. 5-6). In particular, Plaintiffs argue that those cases were dismissed on the ground that the results of the alleged laboratory testing did not support the plaintiffs’ claims, and not because the information regarding the laboratory testing itself was inadequate. (Id.). Not so. While it is true that those cases found that the respective plaintiffs had also failed to demonstrate how the laboratory testing results supported their ultimate conclusions - for example, that artificial flavors were present where the defendants had represented that the flavors were natural - Plaintiffs ignore their first steps. See Myers, 2022 WL 603000 at *4 (concluding that plaintiff had failed to sufficiently allege misrepresentation where she “fail[ed] to provide any details whatsoever about [what] this laboratory test entailed,” and “[f]urther, ... failed to substantiate how exactly the two alleged findings from the purported lab test helped her arrive at the conclusion that the [p]roduct is made of artificial flavors“); Santiful I, 2022 WL 268955, at *4 (first finding that plaintiff‘s proffered lab analysis “contain[ed] no information as to the testing methodology, the date, time, or place of the testing, who conducted the testing, and what the exact product tested was,”
Finally, Plaintiffs rely on the Second Circuit‘s decision in John v. Whole Foods Market Group, Inc. to support their contention that it is “well-settled law that Plaintiffs are not required to disclose all the details of their testing at the pleading stage.” (Pl. Opp. 6 (citing John v. Whole Foods Mkt. Grp., Inc., 858 F.3d 732, 737 (2d Cir. 2017))). While that general proposition of law may be true, it does not mean that Plaintiffs are not required to disclose any details of their testing at this stage. In John, the plaintiff relied on, and attached to the complaint, a press release from the New York City Department of Consumer Affairs (the “DCA“) announcing a preliminary finding that Whole Foods’ New York City locations had systematically overcharged customers for pre-packaged foods by overstating the weights of the products. John, 858 F.3d at 734. The press release, however, explicitly provided that the “DCA tested packages of 80 different types of pre-packaged products and found all of the products had packages with mislabeled weights. Additionally, 89 percent of the packages tested did not meet the federal standard for the maximum amount that an
b. Plaintiffs Also Fail to Allege Materially Misleading Conduct Because the Purported Misrepresentation Is Not Material as a Matter of Law
As discussed, “[t]o establish that conduct is materially misleading, a plaintiff must demonstrate that a reasonable consumer would likely be misled by the alleged misrepresentation.” Lugones v. Pete & Gerry‘s Organic, LLC, 440 F. Supp. 3d 226, 240-41 (S.D.N.Y. 2020) (quoting Sitt v. Nature‘s Bounty, Inc., No. 15 Civ. 4199 (MKB), 2016 WL 5372794, at *8 (E.D.N.Y. Sept. 26, 2016))
Generally, “[d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. Thus, “[c]ourts examining misleading product claims often rely on common sense observations and judicial experience.” Lumbra v. Suja Life, LLC, 674 F. Supp. 3d 7, 14 (N.D.N.Y. 2023); see also Weinstein v. eBay, Inc., 819 F. Supp. 2d 219, 228 (S.D.N.Y. 2011) (”Iqbal directs the Court to apply its common sense when determining the plausibility of a claim - common sense dictates that no reasonable consumer could plausibly think that StubHub tickets come directly from the Yankees[.]“); Warren v. Coca-Cola Co., 670 F. Supp. 3d 72, 83 (S.D.N.Y. 2023) (rejecting plaintiff‘s claim that the margarita hard seltzer she purchased at a grocery store was misleading because it did not contain distilled
Viewed through its judicial experience and common sense, the Court fails to see how a reasonable consumer, acting reasonably under the circumstances, would be materially misled in this context. The Court understands from the CAC that consumers of the Products are generally seeking more caffeine, not less, as evidenced by their desire to purchase the Product in the first place (in comparison to, for example, purchasing a cup of coffee or a can of Red Bull, each with about half the caffeine content). (CAC ¶ 14). Such consumers decide to purchase the Products, which are labeled as an “energy drink” and contain a depiction of a lightning bolt next to the caffeine content, because they want a substantial amount of caffeine. (Id. ¶¶ 12, 20). Therefore, it defies common sense to suggest that it would be material that the Products contain a mere 7-11% additional caffeine - the exact thing those consumers are seeking.
In determining whether a defendant‘s action or practice is materially misleading, the Second Circuit considers whether it “would have caused [the plaintiffs] to make a different initial choice[.]” McCracken, 91 F.4th at 607 (citing N. State Autobahn, Inc. v. Progressive Ins. Grp. Co., 953 N.Y.S.2d 96, 102 (2d Dep‘t 2012) (holding that consumer-oriented conduct is materially
To review, Plaintiffs also bring a cause of action for violation of several State Consumer Fraud Acts. (CAC ¶¶ 39-44). In particular, Plaintiffs bring this claim individually and on behalf of a putative “Consumer Fraud Multi-State Class” consisting of “[a]ll persons in the states of California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, and Washington that purchased the Products within the applicable limitations period” (id. ¶ 29), alleging that Defendant‘s deceptive practices violate the consumer fraud acts in each of the states listed above (id. ¶ 41).
The parties agree that these multi-state claims “rise and fall” with Plaintiffs’ claims under GBL §§ 349-350. (See Def. Br. 18-20; Pl. Opp. 13-14 (arguing that this Court should follow a sister court, which found that the plaintiff in that case had stated a GBL claim, and therefore had stated multi-state claims as well (citing Kelly v. Beliv LLC, 640 F. Supp. 3d 286, 300 (S.D.N.Y. 2022)))). The Court agrees with the parties that the multi-state claims here rise and fall with the GBL claims, and accordingly dismisses Plaintiffs’ claims for violation of state consumer fraud acts. See Adeghe v. Procter & Gamble Co., No. 22 Civ. 10025 (CS), 2024 WL 22061, at *5 (S.D.N.Y. Jan. 2, 2024) (“[C]onsumer protection statutes from states across the country share the common requirement that a reasonable consumer would be misled by a defendant‘s statement ..., and because this Court has already determined that the Product‘s labeling would not mislead a reasonable consumer, [her]
3. The Court Dismisses Plaintiffs’ Remaining Claims
Plaintiffs also bring claims for breach of express warranty (CAC ¶¶ 62-70), unjust enrichment (id. ¶¶ 71-75), and fraud (id. ¶¶ 76-81). As other courts resolving similar claims have observed, the failure of Plaintiffs’ overarching theory of materially misleading business practices dooms these claims as well. See, e.g., Barreto v. Westbrae Nat., Inc., 518 F. Supp. 3d 795, 806-10 (S.D.N.Y. 2021) (dismissing claims for fraud, breach of warranty, and unjust enrichment on the basis that the court had “already determined that [plaintiff] has failed to allege that the product‘s labeling would be likely to deceive or mislead a reasonable consumer“); Wynn, 2021 WL 168541, at *6-7 (same).
a. Plaintiffs Fail to State a Claim for Breach of Express Warranty
“New York breach of express warranty claims require [i] a material statement amounting to a warranty; [ii] the buyer‘s reliance on this warranty as a basis for the contract with his immediate seller; [iii] the breach of this warranty; and [iv] injury to the buyer caused by the breach.” Cosgrove, 520 F. Supp. 3d at 585 (quoting Brady v. Basic Rsch., L.L.C., 101 F. Supp. 3d 217, 235 (E.D.N.Y. 2015) (quoting Avola v. La.-Pacific Corp., 991 F. Supp. 2d 381, 391 (E.D.N.Y. 2013))) (emphases in Avola). Here, Plaintiffs have failed to allege that the Products do not actually comport with the specified caffeine content on the label by providing no non-conclusory allegations regarding the actual
Additionally, a breach of express warranty claim requires that “a buyer ... provide the seller with timely notice of the alleged breach of warranty.” Quinn v. Walgreen Co., 958 F. Supp. 2d 533, 544 (S.D.N.Y. 2013) (citing
Defendant contests the adequacy of the March 4, 2024 pre-suit letter on the basis that it only identified the transactions that Plaintiff Vera originally alleged - purchases she purportedly made in June and August of 2022, “at a time when Prime Energy drinks were not yet on the market,” and which Plaintiff Vera now concedes she received through a promotion. (Def. Br. 21; see also Saxl Decl., Ex. 1 at 4). Thus, Defendant claims that Plaintiffs failed to provide pre-suit notice that identifies a “troublesome” transaction. (Def. Br. 20). See Anderson v. Unilever United States, Inc., 607 F. Supp. 3d 441, 457 (S.D.N.Y. 2022) (“To satisfy this notice requirement, a plaintiff must ‘alert [the] defendant that the transaction was troublesome[.]‘” (quoting Grossman v. Simply Nourish Pet Food Co., 516 F. Supp. 3d 261, 282 (E.D.N.Y. Jan. 27, 2021)) (alteration in original)). However, Plaintiffs assert that a pre-suit letter need not “specify when a product was purchased or used.” (Pl. Opp. 16 (quoting Maroney v. Woodstream Corp., 695 F. Supp. 3d 448, 467-68 (S.D.N.Y. 2023))).
b. Plaintiffs Fail to State a Claim for Unjust Enrichment
Next, Plaintiffs allege a claim for unjust enrichment. A claim for unjust enrichment under New York law requires a plaintiff to allege that “[i] defendant was enriched, [ii] at plaintiff‘s expense, and [iii] equity and good conscience militate against permitting defendant to retain what plaintiff is seeking to recover[.]” Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 55 (2d Cir. 2011) (internal quotation marks omitted). Plaintiffs’ unjust enrichment claim is premised on the same theory of misrepresentation the Court has already rejected as inadequately pleaded. “Where a deceptive trade practices
Additionally, Plaintiffs’ unjust enrichment claim must be dismissed as duplicative. “[U]njust enrichment is not a catchall cause of action to be used when others fail.” Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790 (2012). Furthermore, “an unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim.” Shane Campbell Gallery, Inc. v. Frieze Events, Inc., 441 F. Supp. 3d 1, 6 (S.D.N.Y. 2020) (quoting Corsello, 18 N.Y.3d at 790). “Indeed, courts in the Second Circuit have consistently held that unjust enrichment claims are duplicative of GBL claims.” Barton v. Pret A Manger (USA) Ltd., 535 F. Supp. 3d 225, 249 (S.D.N.Y. 2021) (collecting cases).
Plaintiffs’ claim that Defendant was unjustly enriched is premised on the same alleged misrepresentation that the Products contain 200 milligrams of caffeine. In fact, Plaintiffs rely on precisely the same allegations by incorporation. (CAC ¶ 71). When a claim for unjust enrichment “relies on the same factual allegations and same theory of liability” as Plaintiffs’ other causes of action, it is “plainly insufficient.” Hesse v. Godiva Chocolatier, Inc., 463 F. Supp. 3d 453, 474 (S.D.N.Y. 2020). Plaintiffs rejoin that this claim is not duplicative because they plead unjust enrichment in the alternative to their claim for breach of express warranty. (Pl. Opp. 20). However, courts in this
c. Plaintiffs Fail to State a Claim for Fraud
Finally, Plaintiffs allege a claim for fraud. To state a claim for fraud under New York law, a plaintiff must allege that (i) the defendant made a misrepresentation or material omission of fact, (ii) that was false and known to be false by the defendant, (iii) made for the purpose of inducing the plaintiff to rely upon it, (iv) the plaintiff‘s justifiable reliance on the misrepresentation or material omission, and (v) injury. See Pasternack v. Lab‘y Corp. of Am. Holdings, 27 N.Y.3d 817, 827 (2016); see also In re Fyre Festival Litig., 399 F. Supp. 3d 203, 212-13 (S.D.N.Y. 2019). Claims for fraud, even under state law, must also satisfy the heightened pleading requirements of
4. Plaintiffs Lack Standing to Pursue Injunctive Relief
Defendant lastly argues that Plaintiffs lack standing under Article III to seek injunctive relief because they fail to allege that they intend to purchase the Products in the future. (Def. Br. 24-25). Defendant brings this claim pursuant to
“To establish standing to obtain prospective relief, a plaintiff ‘must show a likelihood that he will be injured in the future.‘” Carver v. City of New York, 621 F.3d 221, 228 (2d Cir. 2010) (quoting Shain v. Ellison, 356 F.3d 211, 215 (2d Cir. 2004)). There must be a “substantial risk” that the future injury will occur, or the threatened injury must be “certainly impending.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). “[A]llegations of possible future injury are not sufficient,” Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 409 (2013) (internal quotation marks omitted), nor is “past exposure to illegal conduct,” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal brackets omitted) (quoting O‘Shea v. Littleton, 414 U.S. 488, 495 (1974)).
Plaintiffs contest this challenge, pointing to Plaintiff Preudhomme‘s statement that he “would purchase the Products again if Defendant (i) lowered the amount of caffeine in the Products; and/or (ii) undertook corrective changes to the packaging.” (Pl. Opp. 21 (quoting CAC ¶ 7)). However, conditional promises to purchase the Products if they are altered are insufficient to allege future injury. See Pete & Gerry‘s Organic, LLC, 440 F. Supp. 3d at 238-39; see also Holve v. McCormick & Co., Inc., 334 F. Supp. 3d 535, 553 n.10 (W.D.N.Y. 2018) (collecting cases). Therefore, as there is no “likelihood that [Plaintiffs] will be injured in the future,” Carver, 621 F.3d at 228, Plaintiffs lack standing to seek injunctive relief.
5. The Court Dismisses the CAC With Prejudice
Given the procedural history in this case, the Court dismisses the CAC with prejudice. There have been a total of five complaints filed in this litigation, with at least two pre-motion letters and two motions to dismiss informing Plaintiffs, before the filing of the CAC, of their deficiencies with respect to their alleged testing. Nevertheless, while Plaintiffs amended Plaintiff Vera‘s allegations to remedy the obvious problem that she claimed to have purchased
Defendant‘s motion to dismiss is GRANTED in full. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case.
SO ORDERED.
Dated: July 31, 2025
New York, New York
KATHERINE POLK FAILLA
United States District Judge