Carmen Rivera v. S. C. Johnson & Son, Inc.

Background

Carmen Rivera, Letisha Williams, Lisa Mack, and Rosemary Vavitsas filed a proposed class action against S.C. Johnson & Son, Inc. They alleged that labels describing four Windex products as having a “Non-Toxic Formula” were deceptive under New York General Business Law §§ 349 and 350. According to the complaint, reasonable consumers would understand “non-toxic” to mean that the products would not harm people, common pets, or the environment, but the products contained ingredients that could cause skin or eye irritation and other harmful effects.

The plaintiffs also asserted unjust enrichment. They alleged that S.C. Johnson sold the products at a premium because of the “Non-Toxic” labeling and that they would not have bought the products, or would have paid less, had they known the alleged truth. They sought monetary relief and injunctive relief for themselves and a proposed class of New York purchasers.

S.C. Johnson moved to dismiss for failure to state a claim under Rule 12(b)(6), and also challenged some claims for lack of standing under Rule 12(b)(1), which concerns the court’s authority to hear a dispute.

New York consumer-protection claims

The court held that the plaintiffs plausibly alleged that the “Non-Toxic” label could mislead a reasonable consumer. The court accepted, at the motion-to-dismiss stage, their allegation that “toxic” can reasonably mean harmful, rather than only poisonous or capable of causing death or serious debilitation. The court also noted the complaint’s allegation that the Better Business Bureau’s National Advertising Division had found that consumers could understand “non-toxic” to signify an absence of harmfulness.

The court nevertheless held that the plaintiffs had not plausibly alleged that the Windex products were toxic under their own definition. The complaint identified potentially harmful ingredients but did not allege the products’ actual ingredient concentrations. The plaintiffs’ allegations about likely concentrations were based on information and belief, without explaining the facts supporting those estimates. The court also noted that the plaintiffs did not identify evidence that the products had caused harm in the real world, did not claim to have experienced the alleged harmful effects, and did not report product testing or other support for their allegations.

The court rejected the argument that the necessary information was exclusively in S.C. Johnson’s possession. It reasoned that the products were widely available for purchase and that information about their potential effects could potentially be supported through testing, evidence of actual harm, expert consultation, or comparisons with similar products. The court dismissed the claims under Sections 349 and 350 without prejudice and allowed the plaintiffs to amend them.

Alleged financial injury

The court declined to dismiss the statutory claims for failure to allege injury. The plaintiffs alleged that the “Non-Toxic” label allowed S.C. Johnson to charge a premium price and that they would have paid less without the alleged deception. Although the court said those allegations would benefit from additional factual support, it found them sufficient at the pleading stage to allege financial injury.

Standing

The court held that the plaintiffs lacked standing to seek injunctive relief. Although they alleged that they might buy the products again if assured that the products were not toxic and did not have the alleged harmful effects, the court found that this did not establish a sufficiently likely future injury. A past purchaser who claims to have been deceived generally will not be deceived in the same way again because the purchaser now knows the information that was allegedly omitted or misrepresented. The court dismissed all claims for injunctive relief under Rule 12(b)(1) with prejudice.

The court rejected S.C. Johnson’s argument that the plaintiffs lacked standing to challenge Windex Multi-Surface Cleaner because they had not purchased it. The court found that the plaintiffs alleged that the purchased and unpurchased products were substantially similar, carried the same “Non-Toxic Formula” representation, were made by the same defendant, and shared some allegedly harmful ingredients. The court therefore concluded that the unpurchased-product claims did not provide a basis for dismissal at that stage. Differences among the products could be addressed later, including at the class-certification stage.

Disposition

Judge Ronnie Abrams granted S.C. Johnson’s motion to dismiss. The complaint was dismissed without prejudice, except for the plaintiffs’ requests for injunctive relief, which were dismissed with prejudice. The court granted leave to file an amended complaint addressing the identified deficiencies, with the amended complaint due within three weeks of the order if the plaintiffs had a good-faith basis to amend. The court also directed the Clerk to amend the caption to remove Katherine Shimanovsky, who was no longer listed in the operative complaint.