Dunning v. Supergoop, LLC

Background

MarceAnn Dunning and Amber Latif brought a proposed class action against Supergoop, LLC. They alleged that Supergoop’s Unseen Face Sunscreen and Unseen Body Sunscreen were labeled SPF 40 even though testing allegedly showed SPF Label Values of 23 and 20, respectively. Dunning alleged that she bought a mini face sunscreen product for $22 in New York, and Latif alleged that she bought body sunscreen in California. Both alleged that they believed the products provided SPF 40 protection and would not have bought them, or would have paid significantly less, if they had known the products had lower SPF values.

The amended complaint asserted seven claims under New York and California consumer-protection laws, an express-warranty claim, and an unjust-enrichment claim. It also sought injunctive relief and was brought on behalf of proposed nationwide, New York, and California classes.

Standing and Testing Allegations

Supergoop moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which allows dismissal when the court lacks subject-matter jurisdiction. Supergoop argued that the plaintiffs had not adequately alleged an injury-in-fact—the concrete, personal harm required for constitutional standing—because they did not show that the products they actually purchased were mislabeled.

The court explained that the plaintiffs relied primarily on a price-premium theory: they allegedly paid more because the products were advertised as SPF 40. That theory required facts supporting a plausible inference that the purchased products were actually mislabeled, or that there was a material risk that they were. The court said the strongest evidence would have been testing of the exact products the plaintiffs purchased. The amended complaint did not allege that those products were tested.

The court recognized that testing different samples can sometimes support standing if the complaint meaningfully links the testing to the purchased products. Relevant facts may include when the tested samples were obtained, how many samples were tested, where they were obtained, and whether the alleged defect was widespread or systematic. The court found the amended complaint deficient because it did not state when the tested samples were purchased, how many product samples were tested, where the samples were purchased, or other facts establishing a meaningful connection to the plaintiffs’ purchases. The complaint’s description of the testing procedure did not supply those missing facts.

The court therefore could not infer that either plaintiff had purchased a mislabeled product. It also rejected the argument that an alleged violation of Food and Drug Administration standards alone established a personal injury, explaining that private plaintiffs could not sue merely to enforce those regulations without adequately alleging a deceptive or misleading practice causing them an injury.

Injunctive Relief

The plaintiffs alleged that they would buy the products again if they actually provided SPF 40 protection. The court nevertheless held that they lacked standing to seek an injunction. Relying on Second Circuit precedent, the court explained that past purchasers who claim to have been deceived by product packaging generally allege a past harm that can be addressed with damages, not a likely future harm requiring an injunction. The court said that a consumer who already knows about the alleged deception would not face the same deceptive experience on a later purchase.

Disposition

The court granted Supergoop’s motion to dismiss. Because the amended complaint did not adequately allege an injury-in-fact, the court dismissed it without prejudice for lack of standing. The court did not reach Supergoop’s alternative arguments under Rule 12(b)(6), which concerns whether a complaint adequately states a legal claim.

Although the plaintiffs had not requested permission to amend again, Judge John P. Cronan granted them leave to file a Second Amended Complaint. The court stated that amendment might not be futile because the plaintiffs might be able to add testing allegations that meaningfully link the tested samples to their purchased products. Any Second Amended Complaint was due two weeks from the date of the opinion. The court also denied Supergoop’s request for oral argument.