Fuller v. The Stop & Shop Supermarket Company LLC

Background

Edward Fuller sued The Stop & Shop Supermarket Company LLC over its CareOne adhesive lidocaine pain-relief patches. The product’s label described the patches as providing “Up to 8 Hours” of numbing relief and as “Maximum Strength.” It also said the patches “Desensitize[] Aggravated Nerves,” provided “Numbing Relief,” and displayed a seal stating “Rx” and “Our Pharmacists Recommend.”

Fuller alleged that the patches often detached within minutes or otherwise failed to remain attached for a period approaching eight hours. He also alleged that “Maximum Strength,” “Numbing Relief,” “Desensitizes Aggravated Nerves,” and the seal were misleading. His First Amended Complaint asserted claims under Sections 349 and 350 of New York’s General Business Law, state consumer-fraud laws, express and implied warranties, the Magnuson-Moss Warranty Act, common-law fraud, and unjust enrichment. In opposing dismissal, Fuller withdrew the multi-state consumer-fraud claims, the implied-warranty claim, and the Magnuson-Moss claim.

Motion-to-dismiss standard

Stop & Shop moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint alleges enough facts to plausibly support a legal claim. For this motion, the court accepted Fuller’s factual allegations as true but did not accept legal conclusions as facts.

New York consumer-protection claims

The court held that Fuller plausibly stated a claim under Sections 349 and 350 based on the “Up to 8 Hours” statement, but only under the theory that the product allegedly failed to adhere for a period approaching eight hours. In context, the front-label statement and the direction to remove the patch after at most eight hours could lead a reasonable consumer to expect to use the patch for approximately eight hours or at least something approaching that period. The court therefore allowed that claim to proceed.

The court dismissed the separate theory that “Up to 8 Hours” promised a minimum adherence period of eight hours. The phrase establishes a ceiling rather than a promise of no less than eight hours, and Fuller’s allegation that consumers expected at least eight hours was not a plausible interpretation of the words themselves.

The court dismissed the claims based on “Maximum Strength,” “Desensitizes Aggravated Nerves,” and “Numbing Relief.” It reasoned that a reasonable consumer would understand “Maximum Strength” on an over-the-counter product to refer to the product’s strength in that category, not necessarily to the strongest prescription product available. The court also concluded that the label did not say the product would completely block pain or eliminate responses to painful stimuli; it expressly described the relief as temporary. Claims based on the product’s seal were deemed abandoned because Fuller did not address Stop & Shop’s arguments about those allegations in his opposition.

Other claims

The court dismissed the common-law fraud claim because Fuller did not plead facts creating a strong inference that Stop & Shop intended to defraud him. His allegation that Stop & Shop had the resources to represent its products truthfully but failed to do so was too conclusory.

The court dismissed the express-warranty claim because Fuller did not adequately allege that he gave Stop & Shop timely pre-suit notice of the alleged breach. The complaint stated only that he had recently learned of the breach and had provided or was providing notice, without factual details such as when or how notice was sent. The court did not decide the parties’ remaining arguments about whether the label statements created an express warranty.

The court dismissed the unjust-enrichment claim because Fuller did not identify facts unique to that claim or explain how it differed from his consumer-protection, fraud, and warranty claims.

Leave to amend and disposition

Fuller requested permission to amend his complaint a second time. The court declined to grant that request, reasoning that most deficiencies were substantive, that Fuller had already amended once after receiving notice of the anticipated dismissal arguments, and that he had not identified facts that another amendment would add.

Judge Seibel concluded that Stop & Shop’s motion to dismiss was GRANTED in part and DENIED in part. The case will go forward only on Fuller’s New York General Business Law claim alleging that the “Up to 8 Hours” statement was misleading because the product failed to adhere for a period even approaching eight hours. The opinion does not state that the dismissed claims were dismissed with or without prejudice.