Wise v. Combe Incorporated

Background

Rosalind Wise and Moona Choudhry filed a putative class action against Combe Incorporated concerning Combe’s Vagisil and OMV! “daily intimate wash” products. The plaintiffs alleged that product labels and related marketing represented that the products were safe, effective, pH-balanced, and suitable for daily use on the vulva. They contended that the products were not safe for daily vulvar use and that they would not have bought them, or would have paid substantially less, had they known that.

Wise alleged that she bought several Vagisil products in California. Choudhry alleged that she bought several Vagisil products in New York. Neither plaintiff bought certain other products that they sought to include in the case, but they alleged that those products were substantially similar to the products they purchased. The amended complaint asserted claims under California’s Consumers Legal Remedies Act, New York General Business Law §§ 349 and 350, express-warranty claims under New York and California law, a California implied-warranty claim, California unjust enrichment, and fraud under New York and California law. The plaintiffs also sought certification of California and New York subclasses.

Combe moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which concerns the court’s subject-matter jurisdiction, and Rule 12(b)(6), which concerns whether a complaint adequately states a claim. Combe also argued that the claims were preempted by the Modernization of Cosmetics Regulation Act of 2022. The court rejected that argument as a basis for dismissal because the plaintiffs conceded that they were not asserting personal-injury claims.

Standing

The court first considered whether the plaintiffs had standing, meaning a concrete injury connected to the defendant’s conduct that could be addressed by the requested relief. The plaintiffs relied on a price-premium theory: they alleged that they paid more because of the allegedly misleading representations and would not have purchased the products, or would have paid less, had they known the truth. The court held that these allegations sufficiently pleaded standing at the motion-to-dismiss stage.

The court also held that the plaintiffs adequately pleaded standing to challenge the products they had not purchased. At this stage, the court accepted their allegations that the unpurchased products had similar intended uses, packaging, labeling, marketing, and alleged misrepresentations. The court noted that Combe could raise further arguments about particular products later. The plaintiffs had withdrawn their claims concerning the Healthy Detox Wash, which mooted the related standing argument.

Claims That Survived

The court denied Combe’s motion to dismiss Wise’s claim under California’s Consumers Legal Remedies Act. Applying the reasonable-consumer standard, the court held that a consumer could plausibly understand labels describing products as “daily intimate wash,” “gynecologist tested,” and intended for “the most intimate skin on your body,” especially in the context of the Vagisil brand, to mean that the products were suitable for daily vulvar use. The court declined to decide at the pleading stage that the representations were not false, misleading, or deceptive.

The court also denied dismissal of Choudhry’s claims under New York General Business Law §§ 349 and 350. The plaintiffs alleged that they saw the challenged representations before and at the time of purchase, relied on them, and suffered an injury through the alleged price premium. Wise had voluntarily withdrawn her New York General Business Law claims, so the denial applied to Choudhry only.

The court denied dismissal of the express-warranty claim under both New York and California law. Although the plaintiffs did not buy directly from Combe and therefore lacked ordinary contractual privity, the court held that an exception could apply when a consumer relies on factual representations on a manufacturer’s product labels or advertising. The court also held that “daily intimate wash” could plausibly be understood as an affirmation of fact or promise about the products.

Claims Dismissed

The court granted Combe’s motion to dismiss Wise’s California implied-warranty claim. California generally requires vertical contractual privity for an implied-warranty claim, and the exception for reliance on a manufacturer’s written labels or advertisements applies only to express warranties. Because Wise did not allege that she bought the products directly from Combe, the court dismissed this claim.

The court granted dismissal of Wise’s California unjust-enrichment claim. Under California law, unjust enrichment is not an independent cause of action, although a court may construe it as a restitution claim. Here, the court found that Wise’s claim was based on the same alleged facts as her warranty claim and that the complaint alleged a contract of sale without alleging that the contract was unenforceable or rescinded.

The court granted Combe’s motion as to the plaintiffs’ fraud claim under New York and California law. Fraud claims must be pleaded with particularity and must include facts supporting a strong inference of fraudulent intent. The court found that the plaintiffs’ allegations that Combe knew its representations were false and wanted to increase sales were insufficient to establish fraudulent intent.

Disposition

Judge Philip M. Halpern granted in part and denied in part Combe’s motion to dismiss the First Amended Complaint. The court granted the motion as to the Fifth Claim for Relief for breach of implied warranty, the Sixth Claim for Relief for unjust enrichment, and the Seventh Claim for Relief for fraud. The court denied the motion as to the First Claim for Relief under the California Consumers Legal Remedies Act; the Second and Third Claims for Relief under New York General Business Law §§ 349 and 350 as to Choudhry only; and the Fourth Claim for Relief for breach of express warranty. Combe was directed to file an answer within 14 days.