KORMAN, Senior District Judge:
On October 15, 2013, plaintiff Donna Tomasino ("Tomasino"), on behalf of herself and all others similarly situated, filed an Amended Complaint seeking damages and injunctive relief against The Estee Lauder Companies Inc., Estee Laboratories, LLC, and Estee Lauder Inc. (collectively "Estee Lauder") alleging five causes of action: (1) violation of Section 349 of the New York General Business Law; (2) violation of Section 350 of the New York General Business Law; (3) breach of an express warranty; (4) breach of the implied warranty of merchantability; and (5) unjust enrichment. The allegations in the Amended Complaint arise from Estee Lauder's marketing of five cosmetic products from its Advanced Night Repair ("ANR") Collection. Estee Lauder has moved pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss the claims for injunctive relief, and Fed.
Tomasino is a citizen and resident of New York. Am Compl. ¶ 19. She commenced this action on behalf of a "nationwide consumer class" and a "New York Subclass." Am. Compl. ¶¶ 84-85. Tomasino asserts that the precise number and identities of the class members are currently unknown and "will be determined though discovery," but that "each of these classes number in the tens of thousands," Am. Compl. ¶ 86, and that the "aggregate amount in controversy exceeds $5 million," Am. Compl. ¶ 26. The Estee Lauder Companies Inc. and Estee Lauder Inc. are corporations organized under Delaware law, and each has its principal place of business in New York. Am. Compl. ¶¶ 23, 25. Estee Laboratories, LLC is a Delaware limited liability company. Am. Compl. ¶ 24.
Tomasino alleges that "in or about 2010" she purchased two cosmetics products from Estee Lauder's ANR Collection — ANR Synchronized Recovery Complex and ANR Eye Synchronized Complex
Based on these representations, and presumably others that do not appear in the Amended Complaint, the plaintiff complains that Estee Lauder misrepresented that the ANR products can, among other things, "repair DNA," "support the natural synchronization of skin's repair and protection processes," "repair the appearance of past damage," "address the visible damaging effects of environmental assaults ... before they become permanent," "prevent future damage," and "reduce lines and wrinkles by 68%." Am. Compl. ¶¶ 93, 100, 106, 114. Tomasino contends that "[i]n reality, the ANR Products do not and cannot live up to the efficacy claims made by Estee Lauder because none of their ingredients can provide the promised results." Am. Compl. ¶ 8.
In support of her allegation that Estee Lauder "convey[s] the misleading message to consumers that using the ANR products will repair damage to their skin cells and/or repair their DNA[,]" Am. Compl. ¶ 31, Tomasino points to various aspects of the Estee Lauder's marketing that she contends were used to lend credibility to the claimed efficacy of the ANR products. For example, she references an allegedly misleading clinical study, resulting in misleading statistics, that suggests that the ANR Synchronized Recovery Complex yielded a 68% improvement in "Lines & Wrinkles" in the test population after 12 months. Am. Compl. ¶¶ 39-42. She also claims that it was misleading for Estee Lauder to cite "in-vitro" tests — "ingredient test[s] in a test tube or petri dish"
The defendants have moved pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss the plaintiff's claims for injunctive relief because they claim she does not have standing to seek such relief. The "irreducible constitutional minimum" of standing requires a plaintiff to show that: (1) it has suffered a concrete and particularized injury in fact which is actual or imminent, not "conjectural or hypothetical," (2) the injury is fairly traceable to the defendant's allegedly unlawful conduct, and (3) the injury
While Tomasino suggests that she remains a potential Estee Lauder customer and is likely to be misled again, Pl.'s Opp'n to Mot. to Dismiss at 29, ECF No. 14, she has not alleged a sufficient future injury to establish standing to assert her claims for injunctive relief because she has demonstrated that she is, in fact, unlikely to purchase ANR products again. See Vaccariello v. XM Satellite Radio, Inc., 295 F.R.D. 62, 68 (S.D.N.Y.2013). Indeed, she has made clear that she does not believe the ANR products have the effects advertised by Estee Lauder, and that she would not have purchased them in the first place absent the allegedly misleading advertisements. See Am. Compl. ¶¶ 19 ("Plaintiff would not have purchased [the ANR Products]... had Estee Lauder not made such false and deceptive claims and instead disclosed the true nature of its products"), 83 (plaintiff received "totally worthless products"); Pl.'s Opp'n to Mot. to Dismiss at 29 ("Plaintiff now appreciates the false and misleading nature of [Estee Lauder's] efficacy claims").
Moreover, the fact that unknowing class members might purchase ANR products based on the defendants' allegedly unlawful advertising does not establish standing. Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 199 (2d Cir.2005) ("the named class plaintiffs `must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.'"); see also Allee v. Medrano, 416 U.S. 802, 828-29, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974) ("[A] named plaintiff cannot acquire standing to sue by bringing his action on behalf of others who suffered injury which would have afforded them standing had they been named plaintiffs; it bears repeating that a person cannot predicate standing on injury which he does not share. Standing cannot be acquired through the back door of a class action.") (Burger, C.J., concurring in part, dissenting in part). Accordingly, Tomasino does not have standing to seek injunctive relief.
Moreover, the plaintiff's claims for damages must be dismissed because she has failed to state a claim upon which relief can be granted. When reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6), "[t]he court accepts all well-pleaded allegations in the complaint as true, drawing all reasonable inferences in the plaintiff's favor." Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir.2010). To survive a motion to dismiss, the plaintiff's complaint must allege "enough facts to state a
New York General Business Law ("GBL") § 349 declares unlawful "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service."
Nevertheless, even under Rule 8, the plaintiff has failed to plead with the requisite "plausibility" that any of the defendants' claims were materially misleading. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (where the plaintiffs "have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed"). Indeed, the complaint does not provide "factual allegations
Tomasino alleges "specific statements that form the basis of [her] claims," Quinn v. Walgreen Co., 958 F.Supp.2d 533, 543 (S.D.N.Y.2013) (internal quotation marks omitted), including the defendants' alleged claims that the ANR products have "certain age-negating effects on the human skin," Am. Compl. ¶ 2, and that the products can "repair DNA," "support the natural synchronization of skin's repair and protection processes," "repair the appearance of past damage," "address the visible damaging effects of environmental assaults... before they become permanent," "prevent future damage," and "reduce lines and wrinkles by 68%." Am. Compl. ¶¶ 93, 100, 106, 114. While she insists that all of these claims are "false, deceptive, or misleading misrepresentations," Am. Compl. ¶ 12, the only factual support she provides in support of her assertion is that "the ANR Products do not and cannot live up to the efficacy claims made by Estee Lauder because none of their ingredients can provide the promised results." Am. Compl. ¶ 8.
While the claim that the products cannot work is a valid theory of affirmatively misleading advertising,
Tomasino's contentions that Estee Lauder's references to product tests and patents are misleading fail for the same reason. She contends that reference to those patents and tests are misleading simply because they are used to advertise ANR products that cannot work. Nowhere, however, does the plaintiff assert that any representations about the patents or tests themselves are inaccurate. For example, the plaintiff's Amended Complaint contains an image from Estee Lauder's website that contains the heading "Clinical study proves skin gets better and better," and provides that:
Am. Compl. ¶ 39. The image contains a graph indicating that there was a 68% improvement in "Lines & Wrinkles" among women who used an ANR product — presumably the ANR Synchronized Recovery Complex, which is pictured next to the graph — relative to women who did not use the products. Am. Compl. ¶ 39. Separately, the plaintiff alleges that it was misleading for Estee Lauder to refer to in-vitro testing without informing consumers that such tests "cannot support efficacy claims regarding the ANR products because such testing cannot assess the cosmetic's ability to penetrate actual human skin in the real world and under real world conditions." Pl.'s Opp'n to Mot. to Dismiss at 14 (citing Am. Compl. ¶¶ 55, 74). There is nothing misleading, however, about presenting scientific research, as long as the year-long study in fact resulted in that 68% improvement, and the in-vitro testing results were accurately conveyed. Cf. DiMuro, 572 Fed.Appx. at 32, 2014 WL 3360586, at *3 ("there is nothing misleading about a dramatization that presents `average results' as long as the dramatization accurately depicts the average results").
Likewise, the plaintiff does not argue that Estee Lauder's statements that it possesses patents for the ANR products are false. Instead, the plaintiff claims that reference to those patents was misleading because Estee Lauder did not include patent numbers in its advertisements. Again, the failure to include those numbers does not make the assertion misleading. In fact, in support of her argument, the plaintiff has misleadingly cited 35 U.S.C. § 287(a), which provides that when selling a patented article, the patent holder may label the article as patented and provide the patent number. If the patent holder does not do so, he cannot recover damages in a patent infringement action. 35 U.S.C. § 287(a). The statute has nothing to do with advertising, and does not require a claim that a product is patented to be accompanied by patent numbers.
The plaintiff's remaining arguments that she plausibly alleges her §§ 349 and 350 claims are conclusory and unpersuasive. She contends that if "the ANR products were actually able to repair past DNA damage, reduce lines and wrinkles by 68%, or provide any of the other age-negating effects [Estee Lauder] promises, the ANR products would trigger drug regulation," Pl.'s Opp'n to Mot. to Dismiss at 17; see also Am. Compl. ¶ 51, and that the fact that they are not so regulated is evidence that Estee Lauder's marketing claims are false. She fails, however, to cite any regulation
The defendants argue that the plaintiff's breach of express and implied warranty claims should be dismissed because the plaintiff failed to provide the defendants with timely notice of those alleged breaches. To assert a breach of warranty claim under New York law, "the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy[.]" N.Y. U.C.C. § 2-607(3)(a); see also Quinn, 958 F.Supp.2d at 544 (dismissing breach of warranty claim for failure to provide notice); Hubbard v. Gen. Motors Corp., No. 95 Civ. 4362, 1996 WL 274018, at *4-5 (S.D.N.Y. May 22, 1996) (same). "The purpose of the [the notice requirement] is not to inform the seller of his own act, but to reveal to him that the buyer chooses to assert the act as a breach and seek a legal remedy therefor[,]" so that the seller need not bear the hardship of "allowing a buyer at any time within the period of the Statute of Limitations to assert that the goods are or were defective though no objection was made when they were received." In re Gotham Silver Co., 91 F.Supp. 520, 523 (S.D.N.Y.1950) (Rifkind, J.) (citing 2 Williston on Sales, 2d Ed., 1259 (1924)) (internal quotation marks omitted). "[R]equiring notice is designed to defeat commercial bad faith, not to deprive a good faith consumer of his remedy." N.Y. U.C.C. § 2-607, cmt. 4.
"[T]he sufficiency and timeliness of the notice is generally a question for the jury." Hubbard, 1996 WL 274018, at *4. "[T]he notice required to preserve [the] right to sue for damages need only `alert [the prospective defendant] that the transaction [was] troublesome.'" Amerol Corp. v. Am. Chemie-Pharma, Inc., No. CV 04-0940(JO), 2006 WL 721319, at *8 (E.D.N.Y. Mar. 17, 2006) (quoting Cliffstar, Corp. v. Elmar Industries, Inc., 254 A.D.2d 723, 678 N.Y.S.2d 222, 223 (1998)) (third and fourth alterations in original). Indeed, the comments to the U.C.C. observe that "[t]he notification ... need only be such as informs the seller that the transaction is claimed to involve a breach, and thus opens the way for normal settlement through negotiation[,]" and that it is not necessary to include either "a clear statement of all the objections that will be relied on by the buyer," or "a claim for damages or of any threatened litigation or other resort to a remedy." N.Y. U.C.C. § 2-607, cmt. 4. Moreover, what constitutes a "reasonable time" for taking an action "depends on the nature, purpose and circumstances of such action." N.Y. U.C.C. § 1-204(2). Nevertheless, "courts have found some delays unreasonable as a matter of law." Atronic Int'l, GmbH v. SAI Semispecialists of Am., Inc., No. 03-CV-4892 (JFB)(MLO), 2006 WL 2654827, at *9 (E.D.N.Y. Sept. 15, 2006).
The Amended Complaint does not contain an allegation that the plaintiff notified the defendants of a breach of warranty.
The plaintiff's letter cannot save its breach of warranty claims in this case. In some cases it might be appropriate to provide the plaintiff an opportunity to replead where, even if notice is not alleged in the complaint, there is evidence that some form of notice may have occurred. See Hubbard, 1996 WL 274018, at *5 n. 5. Under the circumstances here, however, the two to three years that the plaintiff allowed to pass from "in or about 2010" until the time of her letter on July 3, 2013, constituted an unreasonable delay.
In light of the plaintiff's attempt to characterize the ANR products as "goods sold for immediate consumption,"
The plaintiff's claim based on the implied warranty of merchantability also fails because she is not in privity with the defendants. "The implied warranty of merchantability is a guarantee by the seller that its goods are fit for the intended purpose for which they are used and that they will pass in the trade without objection." Wojcik v. Empire Forklift, Inc., 14 A.D.3d 63, 783 N.Y.S.2d 698, 700 (2004) (internal quotation marks omitted). "[A]bsent privity of contract, [however,] a purchaser cannot recover mere economic loss against a manufacturer under a theory of breach of implied warranty." Westchester Cnty. v. Gen. Motors Corp., 555 F.Supp. 290, 294 (S.D.N.Y.1983); see also Westport Marina, Inc. v. Boulay, 783 F.Supp.2d 344, 356 (E.D.N.Y.2010). The plaintiff does not allege that she purchased the products from Estee Lauder or that she suffered personal injury. Rather, she asserts that she suffered economic harm, and purchased the ANR products from a Macy's department store. Am. Compl.
Finally, the breach of warranty claims fail to state a plausible cause of action under Fed.R.Civ.P. 8(a). The breach of warranty claims are based on the same underlying conduct that is the basis for the §§ 349 and 350 claims. Essentially, the plaintiff claims that Estee Lauder's allegedly false or misleading promises formed the basis of an express warranty and because they were false, i.e. they "do not and cannot live up to the efficacy claims made by Estee Lauder[,]" Am. Compl. ¶ 8, the warranty was breached. Likewise, the "implied warranty claim... arises from the ANR Products' failure to conform to promises" in advertisements, and on their labeling and packaging. Am. Compl. ¶ 114; Pl.'s Opp'n to Mot. to Dismiss at 29. Again, because the ANR products allegedly cannot achieve their purported purpose of combating the visible signs of aging, they are not fit for that purpose. Because the plaintiff's breach of warranty claims are based on the same conclusory allegations as her §§ 349 and 350 claims, they do not provide a sufficient factual basis to establish a plausible breach. See DiMuro v. Clinique Labs., LLC, 572 Fed.Appx. 27, 32-33, No. 13-4551-cv, 2014 WL 3360586, at *4 (2d Cir. July 10, 2014). Thus, the plaintiff's breach of warranty claims are dismissed.
Leaving aside whether the plaintiff alleges a plausible unjust enrichment action, the claim must be dismissed because she insists, and the defendants do not object, that her purchase of the ANR products created an express contract. "Where an express contract is conceded, as it is here, a plaintiff may not proceed also on a quasi-contract theory because it is foreclosed by the very existence of the express contract." Arthur Properties, S.A. v. ABA Gallery, Inc., No. 11 Civ. 4409(LAK), 2011 WL 5910192, *4 (S.D.N.Y. Nov. 28, 2011) (Kaplan, J.); see also Mid-Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 175 (2d Cir.2005) ("New York law does not permit recovery in quantum meruit, however, if the parties have a valid, enforceable contract that governs the same subject matter as the quantum meruit claim."); Whitman Realty Grp., Inc. v. Galano, 41 A.D.3d 590, 838 N.Y.S.2d 585 (2007) ("[r]ecovery for unjust enrichment is barred by a valid and enforceable contract"). Multiple times in the Amended Complaint, the plaintiff asserts that she and other members of the proposed classes "formed a contract with the Defendants each time [they] ... purchased the ANR Products," and "[t]he terms of that contract include[d] the efficacy promises and affirmations of fact" underlying all of the plaintiff's claims. Am. Compl. ¶¶ 106, 107, 109, 114. Accordingly, the plaintiff's unjust enrichment action is dismissed.
The defendants' motion to dismiss is granted. The plaintiff's New York General Business Law §§ 349 and 350 claims are dismissed without prejudice and with leave to replead. Her remaining claims, for breach of express warranty, breach of implied warranty, and unjust enrichment, are dismissed with prejudice.