Parker v. United Industries Corporation

Background

Nicholas Parker brought a proposed class action against United Industries Corporation concerning Cutter Natural, a DEET-free insect repellent sold in pump and aerosol forms. The product labels stated that it “Repels Mosquitoes For Hours” and “keeps mosquitoes away from you and your family for up to 2 hours.” Parker claimed these statements were deceptive because Cutter Natural was ineffective and worthless. He asserted claims under New York General Business Law §§ 349 and 350, as well as claims for unjust enrichment, breach of express warranty, and fraud.

United commissioned third-party laboratory testing before marketing both forms of the product. Those studies used “arm-in-cage” testing and measured Complete Protection Time—the period between application and the first mosquito landing on or biting the test subject. The mean time to first landing or bite generally ranged from one to four hours. Parker submitted other studies and an expert analysis reporting substantially shorter protection times, including some tests showing bites within 30 minutes and studies finding little or no repellency effect.

The parties filed cross-motions for summary judgment and several motions to exclude expert evidence. Summary judgment is appropriate when there is no genuine dispute over a material fact and the moving party is entitled to judgment under the law.

New York deceptive-practices and false-advertising claims

The court held that Parker’s claims under New York General Business Law §§ 349 and 350 failed. Those claims required Parker to show consumer-oriented conduct that was materially misleading and caused injury. The court applied the reasonable-consumer standard, asking whether the conduct would likely mislead a reasonable consumer acting reasonably under the circumstances.

The court interpreted the label statement as not claiming that Cutter Natural would repel every mosquito, in every environment, or for every consumer. Parker instead argued that the statement was false because the product was ineffective for all consumers. The court stated that evidence showing the product worked for no one could establish misleading conduct, but concluded that Parker had not offered such evidence.

The court did not find a genuine issue of material fact merely because the parties’ experts used different testing methods and reached different results. Even crediting Parker’s studies and expert analysis while discounting United’s evidence, Parker had not shown that Cutter Natural was ineffective for every individual. The court also noted that Parker did not contend that United fabricated its studies or misrepresented their results. At a minimum, the court found that the product performed consistently with its label under the conditions used in United’s studies.

Remaining claims and evidentiary motions

The court held that the unjust-enrichment claim failed because such a claim is unavailable when it duplicates or replaces a conventional contract or tort claim. The court further stated that without a proven misrepresentation, Parker’s fraud and breach-of-express-warranty claims failed. After rejecting the other claims, the court also dismissed the unjust-enrichment claim.

The court granted Parker’s motion to exclude Melissa Pittaoulis’s declaration and consumer survey because United submitted them more than six months after the expert-disclosure deadline, provided no credible explanation for the delay, and did not seek permission to make the late disclosure. The court denied the parties’ remaining motions to exclude expert testimony because the expert evidence would not affect its analysis or determinations on the summary-judgment motions.

Disposition

Judge George B. Daniels denied Parker’s partial motion for summary judgment. He granted United’s motion for summary judgment dismissing Parker’s claims. He granted Parker’s motion to preclude Pittaoulis’s testimony and survey, denied the remaining motions to exclude expert testimony, and directed the clerk to close the motions.