Sheiner v. Supervalu Inc.

Background

Jesse Sheiner sued Supervalu Inc. on behalf of himself and others similarly situated. He alleged that Supervalu’s lidocaine patch was marketed with misleading statements, including “Up to 8 Hours Numbing Relief,” “Maximum Strength,” and “Numbing Relief.” According to the amended complaint, the patch often peeled off within minutes of light activity and did not reliably remain attached for anywhere close to eight hours. Sheiner alleged claims under Sections 349 and 350 of the New York General Business Law, other state consumer-fraud laws, express warranty law, the Magnuson-Moss Warranty Act, common-law fraud, and unjust enrichment.

Supervalu moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint adequately states a legally recognized claim. In opposition, Sheiner withdrew the claims on behalf of the Consumer Fraud Multi-State Class, the implied-warranty claims, and the Magnuson-Moss Warranty Act claim. The court dismissed those withdrawn claims.

New York consumer-protection claims

The court held that Sheiner adequately pleaded claims under New York General Business Law Sections 349 and 350 based on the “Up to 8 Hours” statement. Those laws prohibit deceptive business practices and false advertising that are likely to mislead a reasonable consumer. The court concluded that, considering the label’s statement about up to eight hours of relief together with directions to remove the patch after at most eight hours, a reasonable consumer could plausibly expect the patch to remain attached and provide relief for approximately eight hours. Sheiner also adequately alleged injury under a price-premium theory by claiming that he paid more because of the product’s representations.

The court dismissed the New York claims based on “Maximum Strength.” It reasoned that, without a comparison to prescription products, a reasonable consumer would understand that phrase as referring to the strongest available over-the-counter lidocaine patch. Sheiner did not identify a stronger over-the-counter lidocaine patch. The court also dismissed the claims based on “Numbing Relief,” finding that a reasonable consumer would not interpret that phrase to promise that the product would completely block nerves, eliminate pain responses, or treat all of the conditions identified by Sheiner.

Other claims

The express-warranty claim was dismissed because New York law requires timely pre-suit notice of an alleged warranty breach, and the amended complaint did not provide sufficient facts about when or how Sheiner gave notice. The court rejected the argument that this notice requirement did not apply because Sheiner alleged economic rather than physical injury.

The fraud claim was dismissed because the amended complaint did not allege facts creating a strong inference that Supervalu intended to defraud consumers. The unjust-enrichment claim was dismissed because it repeated the allegations underlying the other claims and did not explain why it was distinct from them.

Disposition

Judge Nelson S. Roman granted Supervalu’s motion to dismiss in part and denied it in part. The motion was denied as to the New York General Business Law claims based on “Up to 8 Hours” and granted as to all other types of New York General Business Law claims and the other claims. The court denied Sheiner’s request for leave to file a second amended complaint, noting that he did not explain how another amendment would cure the defects and had already amended once. All claims dismissed by the opinion were dismissed with prejudice. Supervalu was directed to file an answer by June 12, 2024, and the parties were directed to file a case-management plan and scheduling order by June 20, 2024.