Anderson v. Unilever United States, Inc.

Background

Aliyah Anderson brought a proposed class action against Unilever United States, Inc. She alleged that labels and advertisements for Dove Deep Moisture Bodywash were deceptive because they described the product as containing “skin-natural nourishers” and being “microbiome gentle.” Anderson alleged that consumers could understand those statements to mean the product would provide special protective benefits for the skin’s microbiome and would not contain ingredients that could harm or disrupt it. She also alleged that the product contained ingredients that could trigger negative skin reactions or disrupt the microbiome.

Anderson alleged that she bought the product during June and July 2020, relying on its labeling, Unilever’s social-media advertising, and its website. She claimed that she paid more because of the product’s “microbiome gentle” and “skin-natural nourishers” representations. Her complaint asserted claims under New York General Business Law §§ 349 and 350, breach of express warranty, breach of the implied warranty of merchantability, violation of the Magnuson-Moss Warranty Act, negligent misrepresentation, fraud, and unjust enrichment. She had withdrawn her request for injunctive relief.

Motion to dismiss

Unilever moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint alleges enough facts to state a legally plausible claim. For purposes of the motion, the court accepted well-pleaded factual allegations as true and drew reasonable inferences in Anderson’s favor. Fraud claims also had to meet Rule 9(b), which requires the circumstances of the alleged fraud to be stated with particularity.

New York consumer-protection claims

The court denied dismissal of Anderson’s claims under New York General Business Law §§ 349 and 350. Those laws prohibit deceptive consumer practices and false advertising. The court concluded that Anderson adequately alleged consumer-oriented conduct because Unilever marketed and sold the product broadly. It also concluded that whether a reasonable consumer could be misled by the “microbiome gentle” and related statements was generally a factual question that could not be resolved at the motion-to-dismiss stage.

The court rejected Unilever’s argument that the phrase “microbiome gentle” necessarily referred only to the product as a whole, rather than to the gentleness of its individual ingredients. The court also rejected the argument that the ingredient list resolved any possible deception, explaining that ordinary consumers would not necessarily know the properties or effects of the scientific-sounding ingredients. Finally, the court held that Anderson adequately alleged injury through a price-premium theory: she alleged that she paid more because of the representations and would not have bought the product, or would have paid less, had she known the truth.

Warranty claims

The court dismissed Anderson’s express-warranty claim without prejudice because she did not adequately allege that she gave Unilever pre-suit notice of the alleged breach. Her statements that she “provided or will provide notice” and that Unilever should have known about the alleged misrepresentations from complaints were too vague. The court explained that the complaint did not provide facts such as when or how Anderson notified Unilever.

The court also dismissed the implied-warranty-of-merchantability claim without prejudice. Anderson bought the product from a third-party retailer, making her a remote purchaser rather than someone in direct contractual privity with Unilever. Because she alleged only economic loss, the court held that New York law required privity for this implied-warranty claim.

The court dismissed Anderson’s claim under the Magnuson-Moss Warranty Act without prejudice. That federal law incorporates state-law express- and implied-warranty claims, and the court had dismissed both underlying warranty claims.

Negligent misrepresentation and fraud

The court dismissed the negligent-misrepresentation claim without prejudice. New York law generally requires a special or near-contractual relationship creating a duty to provide accurate information. Anderson’s allegations that Unilever was an experienced and trusted personal-care-products company did not establish the required special relationship.

The court dismissed the fraud claim without prejudice. Although the complaint’s allegations of reliance were likely inadequate, the court did not need to decide that issue because Anderson had not adequately pleaded fraudulent intent, also called scienter. Her allegations that Unilever wanted to increase sales and knew its statements could mislead consumers were conclusory and did not create the strong inference of fraudulent intent required for a fraud claim.

Unjust enrichment

The court dismissed the unjust-enrichment claim without prejudice. Unjust enrichment is an equitable claim generally used when no conventional contract or tort claim provides a remedy. The court found that Anderson’s unjust-enrichment theory relied on the same facts and sought the same damages as her other claims, making it duplicative.

Disposition

The court granted in part and denied in part Unilever’s motion to dismiss. Anderson’s General Business Law §§ 349 and 350 claims survived. The court dismissed without prejudice the express-warranty, implied-warranty, Magnuson-Moss Warranty Act, negligent-misrepresentation, fraud, and unjust-enrichment claims.

Because this was the first adjudication of the claims, the court allowed Anderson 30 days to file a second amended complaint if she had a good-faith basis for doing so. The court stated that failure to amend properly and on time would result in dismissal of the dismissed claims with prejudice, without further notice.