SMITH, Chief Judge.
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
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.
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, 810 F.3d 187, 197 (3d Cir. 2016).
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
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.
II. 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. ___, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (quoting U.S. Const. Art. III, § 2). In order to avoid violating this "Cases and Controversies" limitation, a party seeking to invoke the federal judicial power must first establish that they have "standing" to do so. Id.
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. Id. (quoting Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). Satisfying the injury in fact element requires the party seeking to invoke federal jurisdiction to establish three sub-elements. Mielo v. Steak `n Shake, 897 F.3d 467, 479 n.11 (3d Cir. 2018). First, the party must "show that he or she suffered `an invasion of a legally protected interest.'" Spokeo, 136 S.Ct. at 1548 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Second, the party must show that the injury is both "concrete and particularized." Id. Finally, the party must show that his or her injury is "actual or imminent, not conjectural or hypothetical." Id.
Because Estrada is the party seeking to invoke federal jurisdiction, "[t]he burden to establish standing" rests with her. Finkelman, 810 F.3d at 194. Indeed, she specifically "bears the burden of showing that [s]he has standing for each type of relief sought." Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (emphasis added). Because Estrada seeks relief in the form of (1) monetary damages, (2) restitution, and (3) injunctive relief, JA 79, our standing inquiry will consider, in turn, whether Estrada
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, 810 F.3d 187 (3d Cir. 2016), and Cottrell v. Alcon Laboratories, 874 F.3d 154 (3d Cir. 2017). These precedential opinions represent two sides of the same coin. And in each, we considered whether the plaintiffs' theory of economic injury was too conjectural to establish standing.
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, 810 F.3d at 190. We concluded that one of the plaintiffs in that case, Hoch-Parker, had not suffered an economic injury sufficient to confer Article III standing. Id. at 196. That was because Hoch-Parker had not even attempted to purchase Super Bowl tickets; he had only considered the possibility of doing so. Id. at 195-96.
A second plaintiff, Finkelman, presented a closer case because he alleged that he had actually purchased Super Bowl tickets. Id. at 197. We therefore examined his allegations through the lens of two different theories of economic injury. Under the first theory, Finkelman alleged that the NFL's ticket policy injured him by preventing him from successfully purchasing a ticket at face value in a ticket lottery. Id. But because Finkelman never entered that lottery, we concluded that this economic theory failed to afford a basis for standing. Id. at 199. His failure to even attempt to purchase a ticket through the lottery meant that "there was always a zero percent chance that he could procure a face-price ticket." Id. at 198. Any economic harm that Finkelman might have suffered as a result of not purchasing Super Bowl tickets through the lottery was therefore not attributable to the NFL's conduct. Id.
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. Id. at 199. Under a different economic theory, then, Finkelman contended that the NFL's ticket policy inflated the price of tickets on the resale market in which he had participated. Id. at 199. In particular, Finkelman alleged that had the NFL originally released more tickets for sale to the general public, there would have been greater availability of such tickets on the resale market. Id. at 199-200. That increase in supply, he claimed, would have resulted in a reduction in price. Id.
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,'" Id. at 201 (quoting United Transp. Union v. I.C.C., 891 F.2d 908, 912 n.7 (D.C. Cir. 1989)), we further explained that "there is a difference between allegations that stand on well-pleaded facts and allegations that stand on nothing more than supposition." Id. Cognizant that "even at the pleading stage, `we need not accept as true unsupported conclusions and unwarranted inferences,'" Id. at 202 (quoting Maio v. Aetna, Inc., 221 F.3d 472, 500 (3d Cir. 2000)), we concluded that Finkelman needed to present the court with additional facts in order to establish standing.
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, 874 F.3d at 169-70. The plaintiffs alleged that "manufacturers and distributors ... packaged [the solution] in such a way that forced [plaintiffs] to waste it." Id. at 159. Specifically, the plaintiffs claimed that the eye medication could only be dispensed from "unfairly" designed bottles that released drops larger than the human eye could hold at one time. Id. at 159, 161.
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
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, 810 F.3d at 193 (recognizing a "federal court's obligation to assure itself that it has subject matter jurisdiction").
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, 810 F.3d at 202 ("Nor are we persuaded by plaintiffs' counsel's promises of future expert testimony when no facts supporting plaintiffs' theory of injury appear within the four corners of the complaint."). Our standing inquiry is restricted to the allegations currently before us.
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., 432 F.3d 286, 294 (3d Cir. 2005) (recognizing that establishing an injury in fact requires alleging an "identifiable trifle" of injury
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, 432 F.3d at 294, it is more than a desert mirage. While the evidentiary burdens placed on a plaintiff at the pleading stage are minimal, our precedent requires the plaintiff to do more than simply pair a conclusory assertion of money lost with a request that a defendant pay up.
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, 547 U.S. 332, 342 n.3, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006); Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991) (same); Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (same); King Bridge Co. v. Otoe Cnty., 120 U.S. 225, 226, 7 S.Ct. 552, 30 S.Ct. 623 (1887) (same); Pennsylvania Family Inst., Inc. v. Black, 489 F.3d 156, 164 (3d Cir. 2007) (same); Philadelphia Fed'n of Teachers, Am. Fed'n of
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, 504 U.S. at 563, 112 S.Ct. 2130 (1992) ("[T]he `injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.") (quoting Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)).
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
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.
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, 810 F.3d 187, 201 (3d Cir. 2016) ("[W]hen it comes to injury, [Finkelman] looks only to the difference between a ticket's $800 face price and the price he paid and says, `I have a strong suspicion that this ticket would have been cheaper if more tickets had been available for purchase by members of the general public.' That claim rests on no additional facts at all. It is pure conjecture about what the ticket resale market might have looked like if the NFL had sold its tickets differently. Article III injuries require a firmer foundation.").
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.
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. Id. at 215. The defendant-appellee in that case, a magazine marketing company by the name of Synapse Group Inc., had allegedly sold subscriptions in an unlawfully deceptive way.
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
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, 672 F.3d at 225. Given that recognition, it would require a strained reading of the case to conclude that the former customers' failure to allege a desire to subscribe in the future played a key role in our analysis. Our holding in McNair was instead more focused on the crucial fact that the former customers were already aware of the allegedly deceptive business practices from which they sought future protection. As we wrote in McNair, "the law accords people the dignity of assuming that they act rationally, in light of the information they possess." Id. That same rationale applies in the case at hand. The law affords Estrada the dignity of assuming that she acts rationally, and that she will not act in such a way that she will again suffer the same alleged "injury." We conclude that Estrada does not have standing to seek injunctive relief.
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.
FUENTES, Circuit Judge, dissenting.
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.
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
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.
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
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:
The Kwikset court further reasons:
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:
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.
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.
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.
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.
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. Id. In analyzing whether the plaintiffs "paid more" for their locksets, the Kwikset Court noted that "[w]hether or not a party who actually received the benefit of his or her bargain may lack standing, in this case, under the allegations of the complaint, plaintiffs did not [receive the benefit of their bargain]." Id., 120 Cal.Rptr.3d 741, 246 P.3d at 892. Unlike the plaintiffs in Kwikset, who failed to receive the benefit of their bargains and thus "paid more" for their locksets, Estrada fails to allege the same.