Leiner v. Johnson & Johnson Consumer Companies, Inc.

Filing 47

Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 1/12/2016. Mailed notice (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Stephanie
Leiner,
on
behalf
of )
herself and all others similarly )
situated
)
)
Plaintiff,
)
v.
) Case 15 C 5876
)
)
Johnson
&
Johnson
Consumer )
Companies, Inc.,
)
)
Defendants.
)

MEMORANDUM OPINION AND ORDER
Plaintiff Stephanie Leiner complains on behalf of herself
and a class that defendant violated the Illinois Consumer Fraud
and Deceptive Business Practices Act (“ICFA”) by labeling and
advertising two of its products (together, the “Bedtime Bath
Products”) as “clinically proven” to help babies sleep better
when it knew that the products had not been clinically proven to
have

that

effect.

Defendant

has

moved

to

dismiss

the

case

and/or to strike plaintiffs’ class allegations. The motion is
denied for the following reasons.
Defendant’s lead argument is that plaintiff lacks standing
to

seek

injunctive

relief,

since,

no

longer

fooled

by

defendants’ deceptive statements, she is not likely to purchase
the Bedtime Bath Products again. Defendant also insists that

plaintiff lacks standing to pursue class claims arising out of
the purchase of Bedtime Bath Products any time before 2014, when
she

herself

bought

the

products.

I

agree

with

plaintiff,

however, that Arreola v. Godinez, 546 F.3d 788 (7th Cir. 2008),
reveals the flaw in these arguments.
Circuit

explained

that

In Arreola, the Seventh

“[a]lthough

the

two

concepts

unfortunately are blurred at times, standing and entitlement to
relief

are

not

the

same

thing.”

Id.

at

794-95.

Accordingly,

while the court of appeals agreed with the district court that
the plaintiff--an inmate who was no longer incarcerated at the
facility whose conduct he sought to enjoin--had too tenuous an
interest in prospective relief to maintain a viable claim for an
injunction,

id.,

at

799,

it

nevertheless

concluded

that

his

Article III standing was secure. Id. at 795 (“Arreola did have
standing

to

pursue

his

lawsuit.

Whether

he

is

entitled

to

relief on any or all of those claims and whether he may serve as
an

adequate

class

representative

for

others

asserting

such

claims are separate questions....”)
I am mindful that in Bohn v. Boiron, Inc., 11 C 8704, 2013
WL 3975126, at *2-*3 (N.D. Ill. Aug. 1, 2013) (Durkin, J.), the
court concluded that the plaintiff lacked Article III standing
to obtain an injunction under ICFA on behalf of a class because
she disclaimed any likelihood of being personally injured by the
defendants’ conduct in the future.
2

Indeed, courts have split on

whether

a

plaintiff

who,

having

unveiled

the

defendant’s

deception, is unlikely to purchase (or affirmatively disavows
the intent to purchase) the defendant’s product in the future
nevertheless

maintains

standing

to

pursue

under state consumer protection statutes.
v.

Estee

Lauder

Companies

Inc.,

44

injunctive

relief

See, e.g., Tomasino

F.Supp.3d

251,

255–56

(E.D.N.Y. 2014) (plaintiff lacked standing to seek injunctive
relief

because

she

was

unlikely

to

purchase

product

again);

Davidson v. Kimberly–Clark Corp., 14–CV–1783, 2014 WL 3919857,
at *5 (N.D.Cal. Aug. 8, 2014).

The better view, however, and

the one consistent with Arreola, is the one taken by courts that
have declined to hold that plaintiffs lacked standing based on
the fact that they abandoned the product upon their discovery
that it had been deceptively labeled or advertised.

See, e.g.,

Ackerman v. Coca-Cola Co., No. 09 CV 395 (DLI)(RML), 2013 WL
7044866, at *15 (E.D.N.Y. July 18, 2013); Henderson v. Gruma
Corp., No. 10-cv-4173, 2011 WL 1362188, at *7 (C.D. Ca. Apr. 11,
2011);

Larsen

v.

Trader

Joe’s

Co.,

No.

C

11-5188,

2012

WL

5458396, at *4 (N.D. Ca. Jun. 14, 2012); Koehler v. Litehouse,
Inc., No. 12 CV 04055, 2012 WL 6217635, at *6 (N.D.Cal. Dec.13,
2012).
inherent

These courts acknowledged the public policy conundrum
in

the

contrary

view:

the

injunctive

provisions

of

consumer protection statutes such as ICFA could never be invoked
to

enjoin

deceptive

practices

if
3

the

complaining

consumer’s

standing

dissipated

the

moment

she

discovered

deception and could no longer be fooled.

the

alleged

While it is true, as

Bohn observes, that public policy concerns do not confer Article
III standing on a plaintiff who fails to allege an individual
injury in fact, I am satisfied that plaintiff has alleged a
legally

cognizable

injury

resulting

from

defendant’s

deception, and thus has standing to bring her claims.

alleged
Whether

plaintiff is an appropriate class representative with respect to
some or all of these claims is an issue properly decided after
discovery and briefing on class certification. See Damasco v.
Clearwire Corp., 662 F.3d 891, 897 (7th Cir. 2011) (plaintiffs
in putative class actions are entitled to develop factual record
before class certification is determined), overruled on other
grounds by Chapman v. First Index, Inc., 796 F.3d 783 (7th Cir.
2015).
Defendant’s

next

argument—that

the

statements

defendants

made about the Bedtime Bath Products being “clinically proven”
were actually true—is a merits argument outside the scope of
what

I

may

appropriately

decide

on

a

motion

to

dismiss.

Straining to liken this case to Greifenstein v. Estee Lauder
Corp., Inc., No. 2013 WL 3874073 (Jul. 26, 2013) (Chang, J.)
(dismissing

without

prejudice

a

consumer

complaint

of

false

labeling and advertising under ICFA), defendant seeks to recast
plaintiff’s

claims

as

challenging
4

the

“sufficiency”

of

defendant’s clinical testing.

Contrary to defendant’s argument,

however, plaintiff does not complain about the “methodology” of
defendant’s testing.

Rather, she complains that defendant did

not

the

clinically

test

Bedtime

Bath

Products

at

all,

but

instead tested a “routine,” rendering defendant’s claims that
the products had been clinically tested deceptive or misleading.
That

is

rested

unlike
on

the

plaintiff’s

allegations

that

claim
the

in

Greifenstein,

defendant’s

claims

which
were

“disproved by competent clinical evidence and based on flawed
company-sponsored testing.” Id. at *1. 1 Indeed, the plaintiff in
Greifenstein
for

the

affirmatively

challenged

argued

statements,

that

lack

of

along

with

the

substantiation
existence

of

studies allegedly revealing the statements’ falsity, are what
rendered the statements false.

Id. at *4.

Plaintiff’s claims

are decidedly not of that ilk.
Nor is there merit to defendant’s argument that plaintiff’s
ICFA claim is not pled with particularity. Plaintiff identifies
(and, indeed, attaches to her complaint) the labels she claims

1

Plaintiff’s allegation that defendant “cites to its own ‘baby
care experts’” in its Infant Sleep Guide, from which it may be
possible to infer plaintiff’s skepticism about the truth of
defendant’s statements based on their source, does not convert
her claim to one based on inadequate substantiation in view of
her clear allegations elsewhere that defendant “expressly
represented that the Products were clinically proven to help
baby sleep better,” despite “know[ing]...contrary to the clear
labeling and advertising, [that] the Bedtime Products themselves
are not clinically proven.” Complaint at ¶ 24-25.
5

contain false, deceptive, or misleading statements.
where and when she saw the labels.

She states

She alleges that she paid a

premium of “at least $1.00” or “at least twenty-five percent”
for the Bedtime Bath Products, compared with defendant’s other
products not specifically labeled and marketed as helping babies
sleep better.

No more is needed to satisfy Rule 9(b).

See,

e.g., Greifenstein, at *4, *7 (allegations containing date and
location of purchase sufficient to plead “where” and “when” of
an

ICFA

claim,

and

allegations

that

plaintiff

paid

an

“unwarranted premium” based on false statements sufficient to
plead actual damages).
Finally,

defendant

argues

that

plaintiff’s

unjust

enrichment claim must be dismissed because it cannot stand in
the absence of a viable ICFA claim.

Because I conclude that

plaintiff’s ICFA claim is adequately pled, there is no apparent
basis for dismissing her unjust enrichment claim.
Nor

am

I

persuaded

that

striking

plaintiff’s

class

allegations is appropriate. Defendant’s lead argument in this
connection

is

again

that

plaintiff

lacks

reject for the reasons explained above.

standing,

which

I

Defendant’s remaining

arguments—that the proposed class is over-inclusive, that the
class claims will require individualized proof, and that some
class members may not have relied on the challenged statements,
or may have relied on different labels than the ones plaintiff
6

saw—are

either

premature,

do

not

necessarily

preclude

treatment, or both.
For all of these reasons, defendant’s motion is denied.

ENTER ORDER:

_____________________________
Elaine E. Bucklo
United States District Judge
Dated: January 12, 2016

7

class