Dennis Lynch v. TROPICANA PRODUCTS, INC.

Filing 51

OPINION. Signed by Judge Dennis M. Cavanaugh on 6/12/13. (gmd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DENNIS LYNCH. et. al.,
Plaintiffs.
V.

:

Hon. Dennis M. Cavanaugh

:

OPINION
Civil Action No. 2:1 l-cv-07382 (DMC) (JAD)

TROPICANA PRODUCTS, INC., a
division of PepsiCo, Inc.. and PEPISCO.
INC.,
Defendants.

DENNIS M. CAVANAUGH, U.S.D.J.:
This matter comes before the Court upon the motion of Defendant Tropicana Products, Inc.
(“Tropicana” or “Defendant”) to dismiss the Consolidated Amended Complaint (“CAC”) of
Plaintiffs Bernadette Salerno, Michael Martinucci, Sandra Jablons. Yxia Olivares, Angela Lewis.
Dezzi Rae Marshall. and Aleksander Simic. individually, collectively, and on behalf of all
purchasers in the United States of Tropicana orange juice (collectively “Plaintiffs”), pursuant to
FED.

R. Civ, P. 12(b)(6). (Def.’s Mot. to Dismiss, Sept. 25, 2012, ECF No. 37). Oral arguments

were heard in this matter on May 14, 2013. After considering the submissions of the parties and
the the parties’ respective oral arguments. and based upon the following, it is the finding of this
Court that Defendant’s Motion to Dismiss is granted in part, and denied in part.
I.

1
BcxcRouND

The named Plaintiffs in this action are seven purchasers of Tropicana’s orange juice who
1 The facts contained herein are taken from the Complaint and the parties’ respective moving papers.

assert that Tropicana has been falsely claiming that its modified “not-from-concentrate” orange
juice (“NFC juice” or “the product”) is 100% pure and natural orange juice. Despite Tropicana’s
“100% pure and natural claim,” Tropicana’s NFC juice, according to Plaintiffs, is processed,
colored, and flavored.
Plaintiffs take issue, specifically, with the processes used to create Tropicana’s NFC juice,
including that it is pasteurized, deaerated, stripped of flavor and aroma, stored for long periods of
time before available to the public, and colored and flavored before being packaged. (CAC

¶ 6).

Some of the processes that Plaintiffs believe deviate from natural processing include:

(1) the removal of naturally present air from the intercellular spaces of the juice through the
deaeration process;
(2) the reduction and deactivation of naturally occurring enzymes and microbial activity
through pasteurization;
(3) long-term storage of deaerated and pasteurized juices for a year or longer;

(4) the addition of chemically engineered “flavor packs” derived from sources other than
those used to make the juice, including oils from peels of oranges imported from Mexico,
Brazil and other foreign countries to mimic the flavor that natural orange juice has;
(5) the addition of chemically engineered coloring derived from the flavedo or outer
section of the orange peels from oranges other than those used to make the juice to enhance
the color; and
(6) the mixing of numerous types of orange cultivars from Florida and Brazil that are then
colored and/or flavored to cover up quality, varietal, seasonal, and geographic differences
in the fruit used to make Tropicana orange juice.
(CACf 6).
Plaintiffs allege that they saw and read Tropicana’s misrepresentations that the NFC juice
was “100% pure and natural” and relied upon these representations in deciding to purchase the
product. (CAC

¶

18-24). Plaintiffs pinpoint what they allege to be a misrepresentative image

2

of an orange pierced by a straw on Tropicana’s NFC juice container and representations made on
Tropicana’s website, including the statement that:
Tropicana Pure Premium is 100% pure and natural juice, with 16 fresh-picked
oranges squeezed into every 59 oz. container. No water, sugar, or preservatives
are ever added and it is never from concentrate, so you can get only the freshest,
most delicious straight-from-the-orange taste.
(CAC

¶ 49).

Tropicana also utilizes marketing phrases such as “Grove to Glass” and states there

is “absolutely no space” for anything but sixteen fresh-squeezed oranges. (CAC

¶J 51-52).

Plaintiffs assert that Tropicana’s use of such marketing strategies confuses and misleads
consumers and that Tropicana understands that such phrasing suggests or implies that their product
is unprocessed, in its raw state, and without additives. (CAC

¶J 54-55).

Tropicana does not

disclose the use of flavor packing on its label nor is it mentioned in its advertising. (CAC

¶J

147-48).
Based on the foregoing factual allegations, along with the others contained in the
Complaint, Plaintiffs assert claims for: (1) unjust enrichment; (2) breach of express warranty; (3)
violation of the New Jersey Consumer Fraud Act; (4) violation of N.Y. GEN Bus. LAw
violation of N.Y. GEN. Bus. LAW

§

350; (5) violation of N.Y. GEN. Bus. LAW

of the Consumers Legal Remedies Act (“CLRA”), Cal, Civ. Code
the Unfair Competition Law, Cal. Bus. & Prof. Code

§

§

§

§

349; (5)

350; (6) violation

1750, et. seq.; (7) violation of

17200, et. seq.; (8) violation of the

California False Advertising Law, Cal. Bus. & Prof. Code

§

17500, ci seq.; (9) violation of the

Wisconsin Fraudulent Representations and Deceptive Trade Practices Law, Wis. STAT.

§

100.18(1); (10) violation of the Wisconsin Unfair Methods of Competition and Trade Practices
Law, Wis. STAT.

§

100.20(1); (11) punitive damages under Wisconsin Law; (12) violation of the

State Consumer Protection laws of various states; and (13) for injunctive relief and declaratory
3

relief pursuant to 28 U.S.C

§ 2201.

Oral arguments in this case were held on May 14, 2013. The predominant focus of oral
arguments was the parties’ differing interpretations of the law concerning federal preemption of
state labeling requirements, as it applies to pasteurized orange juice.
Aside from the preemption issue, several other claims are the subject of the instant motion:
(a) whether Plaintiffs adequately allege a reasonable expectation that Tropicana NFC juice was
“100% Pure and Natural; “(b) whether the Complaint satisfies Rule 9(b); (c) whether Plaintiffs’
unjust enrichment claim is well pled; (d) whether Plaintiff Simic adequately states a claim for
punitive damages; (e) whether Plaintiff Simic adequately states a claim for unfair trade practices
under Wisconsin law; (f) whether Plaintiff Simic adequately states a claim for breach of express
warranty under Wisconsin law.
II.

LEGAL STANDARD

In deciding a motion under Rule 12(b)(6), a district court is “required to accept as true all
factual allegations in the complaint and draw all inferences in the facts alleged in the light most
favorable to the [Plamtiffj” Phillips v Cnty of Allegheny, 515 F 3d 224 228 (3d Cir 2008)
“[A] complaint attacked by a

.

.

.

motion to dismiss does not need detailed factual allegations.”

Bell AtI. Corp. v. Twombjy, 550 U.S. 544, 555 (2007). However, the Plaintiffs “obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Id. (internal citations
omitted), “[A court is] not bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, assuming that the factual
allegations in the complaint are true, those “[flactual allegations must be enough to raise a right to
4

relief above a speculative level.” Twombly. 550 U.S. at 555.
“A complaint will survive a motion to dismiss if it contains sufficient factual matter to
state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference that the defendant is liable 1br
misconduct alleged.” Id. “Determining whether the allegations in a complaint are ‘plausible’ is
a ‘context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Young v. Speziale, Civ. No. 07-03129. 2009 WL 3806296. at *3 (D.N.J. Nov.
10, 2009) (quoting lqbal, 129 S. Ct. at 1950). “[W]here the well-pleaded facts do not

permit

the

court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has
not ‘shown’—that the pleader is entitled to relief” Igbal, 129 S.Ct. at 1950.
HI.

DiscussioN
A.

Preemption

The Food, Drug, and Cosmetic Act (“FDCA”), 21

§ U.S.C. 301, as amended in

1990 by the

Nutrition Labeling and Education Act (‘NLEA”), provides that the FDA shall “promote the public
health by promptly and efficiently reviewing clinical research and taking appropriate action on the
marketing of regulated products in a timely manner.” 21

§ U.S.C.

393(b)(2)(A). Encompassed

within the FDAs mission is to ensure that ‘foods are safe, whole. sanitary, and properly labeled.”
21

§ U.S.C.

393(b)(2)(A).

Tropicana’s motion focuses on the express preemption provision found in the Nutrition
Labeling Education Act of 1990 (“NLEA”).

During oral arguments, Tropicana’s counsel

asserted that the core claim made by Plaintiffs is that consumers were misled because Tropicana

5

did not disclose specific information about the production process for its pasteurized orange juice.
(Oral Argument Tr. at 5:20-22). Tropicana’s counsel spoke of the six processing steps that
Plaintiffs contend required disclosure and argued that each of those processing steps was
contemplated by the FDA-established standard of identity in regulation of pasteurized orange
juice. (Oral Argument Tr. at 5 :24-25, 6:24). In Tropicana’s view, the FDA standard requires
only that the label identif that the product is pasteurized, a requirement that Tropicana has
fulfilled. (Oral Argument Tr. at 6:6-7). Tropicana asserts, both in their briefings and during oral
argument that, to ensure that federally-regulated foods like Tropicana’s NFC juice would not be
subject to a patchwork of state labeling requirements, Congress provided under the NLEA that the
FDA’s rule expressly and broadly preempts any state labeling rules that would impose
requirements “not identical to” those imposed on such foods by the FDA. (Def.’s Mot. Br. 12,
Sept. 25, 2012, ECF No. 37-1; Oral Argument Tr. at 6:21-25). Tropicana asserts that Plaintiffs
improperly try to impose state labeling requirements, wherein FDA rules expressly preempt these
alternative labeling rules. (Def.’s Mot. Br. 14). Therefore, according to Tropicana, Plaintiffs’
claims are preempted because they would impose requirements not identical to the pasteurized
orange juice standard of identity.
Plaintiffs, in turn, assert that the state law claims at issue here focus on the very thing that
the federal regulations require: the truthful, complete, and accurate labeling of each ingredient
contained in the product. (Oral Argument Tr. at 20:9-12). Plaintiffs argue that their state law
claims are not preempted by federal law and could not be because they fall outside the NLEA’s
express preemption provision. (PIs.’ Opp’n Br.16, Nov. 13, 2012, ECF No. 41). Aside from the
clearly delineated areas specified by that legislation, Plaintiffs assert, the NLEA left in place the
6

states ability to protect consumers from misleading labeling and deceptive advertising.
Opp’n Br. 13).

Plaintiffs maintain that Tropicana is required to disclose its added

(Pis.’

flavoring in

the

statement of ingredients on its label, regardless of whether the added flavorings are comprised of
orange oil, orange essence, orange peels, or any combination of orange by-products. (Pis,’
Br. 20).

Opp’n

Because Tropicana adds flavor packs to achieve a specific flavor in their NFC juice,

Plaintiffs argue that the flavor pack constitutes an ingredient. (Pis.’ Opp’n Br. 18-19).
The NLEA provides the basis for FDA regulation of nutrition labels and expressly
preempts state laws that are narrowly directed at nutrition labeling and health claims only and
“explicitly forecloses the possibility that state law would be impliedly preempted.” (Pis.’ Opp’n
Br. 13). The Supremacy Clause, U.S. C0NsT., Art. VI. may entail pre-emption of state law either
by express provision, by implication, or by a conflict between federal and state law. New York
State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 635, 654
(1995) (citmg Pacific Gas & Elec Co v State Energy Resources Conservation and Developmcnt
Comm’n, 461 U.S. 190, 203-204 (1947)). Despite this, the Supreme Court has “never assumed
lightly that Congress has derogated state regulation, but instead has addressed claims of
pre-emption with the starting presumption that Congress does not intend to supplant state law.’
IcL (citing Maryland v. 655 Louisiana, 451 U.S. 725, 746(1981)). The presumption that Congress
does not supplant state law is especially strong in areas which the states have traditionally
occupied.

Rice v. Santa Fe Elevator Corp.. 331 U.S. 218. 230 (1947): çe also Wyeth v. Levine.

555 U.S. 555, 565 (2009). It may, however, not be applicable “where the interests at stake are
‘uniquely federal’ in nature.” Feilner v. Tn-Union Seafoods, LLC, 539 F.3d 237. 248 (3d Cir.
2008) (citing Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 348 (2001)). The

7

preliminary presumption that Congress does not intend to supplant state law is overcome only by
“clear and manifest” congressional intent to the contrar. Medtronic, Inc. v. Lohr, 5 1 8 U.S. 470.

485 (1995). Therefore, a party seeking preemption of state law bears the burden of proving such
intent.

See Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317 (1981).
The FDCA authorizes the FDA to establish “definitions and standards of identity ibr

foods.” Am. Frozen Food Institute v. Mathews, 413 F. Supp. 548, 550 (D.D.C. 1976), atid on
other grounds, 555 F.2d 1059 (D.C. Cir. 1977). The FDA has established the standards of identity
for pasteurized orange juice, canned orange juice. orange juice from concentrate, along with
several other juice products.

See 21 C.F.R.

§

146. l40(a)-(c).

Each standard of identity is

unique. The standard for pasteurized orange juice provides for the adjustment of orange oil and
pulp in accordance with good manufacturing practices, and the inclusion of two optional
ingredients: concentrated orange juice and certain sweetening ingredients. 21 C.F.R.
146.140(a)-(c). If an optional ingredient is added, the standard requires that the label shall bear a
statement that the given ingredient has been added. 21 C.F.R.

§

146.140(e)(1)-(2).

The NLEA provides the basis for FDA regulation of nutrition labels and expressly
preempts state laws narrowly directed at nutrition labeling and health claims only and “explicitly
forecloses the possibility that state law would be impliedly preempted.” N.Y. State Rest.

Ass’n

v.

N.Y. City Bd. of Health, 509 F. Supp. 2d 351, 355 (S.D,N.Y. 2007). Under the express
preemption section, states may not impose a standard of identity on a food that is subject to the
FDA standard of identity, unless the state standard is identical to the fideral standard, 21 U.S.C.
343-l(a)(l).(4)-(5). However, the NLEA allows for state regulation designed to protect
consumers from misleading labeling and deceptive advertising, provided it falls outside of the

8

§

aforementioned delineated areas. Plaintiffs argue that none of their claims are foreclosed by, or
fun afoul of the NLEA because they are not inconsistent with and do not add a requirement
distinct from the NLEA.
In order to resolve this dispute. the Court must first analyze the FDA’s labeling
requirements for NFC juice meeting the standard of identify for “pasteurized orange juice” and
then determine whether the state law causes of action asserted by Plaintiffs impose any
“requirement.

.

.

that is not identical to” federal regulations. 21 U.S.C.

§ 343-1(a)(l).

Plaintiffs

state law causes of action are preempted if they are found to “impose[] a broader obligation than
[lcderal lawj

In ae Pepsico Inc Bottled Watei Marketing and Sales Practices I itigation 588

F.Supp.2d 527. 534 (S.D.N.Y. 2008) (citing Bates v. Dow Agrosciences LLC, 544 U.S. 431. 453
(2012)).

While undergoing a preemption analysis, courts recognize a strong presumption against

preemption that may be overcome only by a “clear and manifest” congressional intent to the
contrary. Medtronic, Inc. v. Lohr. 518 U.S. 470, 487 (1996). Here, the Court finds that
Tropicana has not overcome the starting presumption that Congress does not intend to supplant
state law for purposes of this motion to dismiss. See N.Y. State Conf. of Blue Cross & Blue
Shield v, Traveler’s Ins. Co., 514 U.S. 645, 654 (1995).

Plaintiffs allege Tropicana has not

complied with the labeling requirements set forth in the standard of identity established by the
FDA. Tropicana acknowledges that state laws are not preempted when identical to federal
Case law relied upon b Defendants to the

requirements. (Oral Argument Tr. at 8:23-25).

contrary is not applicable to the extent that it involves an attempt to impose additional labeling
requirements on manufacturers or product labeling that is in conformity with the standard of
identity, as such regulations would fall within the parameters of federal preemption.

9

See In re

PepsiCo. Inc. Bottled Water Mktg. & Sales Practices Litig.. 588 F. Supp. 2d 527 (S.D.N.Y. 2008)
(involving a label on a bottle of water that was subject to preemption as it was in conformity with
the FDA’s standard of identity); Mills v. Giants of Md., LLC, 441 F. Supi,. 2d 104, 108 (D.D.C.
2006) (finding state law was preempted because it applied disclosures on milk products that would
“exceed the labeling requirements mandated by the standard of identity”); Hairston v. S. Reach
l3everage Co., Civ. No. 12—1429, 2012 WL 1893818 (C.D. Cal. May 12. 2012) (determining
‘[pjlaintiff’ s argument would effectively allow [p]laintiff to avoid preemption of those claims, and
would undermine the purpose of the federal labeling standards which includes avoiding a
patchwork of different state standards”). The FDA has determined that a state requirement is not
identical if it directly or indirectly imposes obligations or provides provisions concerning the
labeling of foods that are “not imposed by,” or ‘differ from those specifically imposed by”
applicable federal law.

See 21 C.F.R. 100.1

Of the five of the six processing steps discussed in the amended complaint. Plaintiffs
narrow in on one in particular, the addition of flavor packs into Tropicana orange juice. Plainti ITs
allege that Tropicana adds flavors and colors to its orange juice with flavor packs, but fails to
disclose these added ingredients. Plaintiffs assert that their state law claims are premised on
Tropicanas false and misleading labeling and a failure to disclose added ingredients, thereby
making them identical to federal regulations. (Oral Argument Tr. at 20:5-7). The state
regulations focus on the same requirement contained in the federal regulations. i.e. accurate and
complete labeling of a product’s ingredients. The standard of identity of pasteurized orange juice
requires the disclosure of the added flavoring in a product’s statement of ingredients. $ge 21
C.F,R.

§

101.22(h). Because Plaintiffs claims involve an alleged failure to meet the

10

requirements of federal law, and not a standard that deviates from or adds to such requirements,
these claims are not preempted.
Tropicana next argues that Plaintiff’s state law claims also fail for another reason, namely
that the manufacturing processes and labeling practices Plaintiffs challenge are permitted by the
FDA regulations and therefore these claims are precluded under the safe harbor doctrine. (Def.’s
Mot. Br. 25). Tropicana contends that, as it has complied with the FDA’s regulations on
processing for its juice, the safe harbor doctrine serves to bar Plaintiffs’ claims. (Def.’s Mot. Br.
25). This issue is interconnected with the federal preemption question. As Plaintiffs
acknowledge, the safe harbor doctrine may be applicable in instances where a defendant is
recognized to follow applicable federal regulations, however here, as discussed above, Plaintiffs
have alleged that Tropicana has failed to follow FDA regulations by not declaring ingredients in
the juice labels and making false and misleading claims regarding the content of the orange juice.
Under such circumstances, Plaintiffs claims are not barred by this doctrine for purposes of the
instant motion.
B.

Whether Plaintiffs Sufficiently Plead Reasonable Expectations

Tropicana argues that even ifthe Court does not find Plaintiffs’ claims are preempted, they
should still be dismissed because Plaintiffs fail to allege facts supporting essential elements of
their claims. Firstly, Tropicana cites to Plaintiffs’ failure to allege facts demonstrating a
reasonable expectation that the processing ofNFC juice was all-natural that was “induced by a
misrepresentation, and that this expectation was not met.” Smajlaj v. Campbell Soup Co., 782 F.
Supp. 2d 84,99 (D.N.J. 2011).
For a statement to be deemed “deceptive or misleading, consumers must have held
11

expectations about the matter in question” and those expectations must be defeated. In re Sony
HDTV Television Litig., 758 F. Supp. 2d 1077, 1089 (S.D. Cal. 2010).

Specifically, Tropicana

contends that, as the NFC juice states in all capital letters ‘pasteurized” on the front of the label, it
is not reasonable for a consumer to claim that she was misled into believing the statement, “100%
pure and natural orange juice” meant it was akin to fresh-squeezed orange juice. (Oral Argument
Tr. at 14:23-25, 15:1-4). Plaintiffs counter by asserting that the failure to disclose the flavor
packs. coupled with the marketing campaign for the product as “100% pure and natural” create an
impression in consumers’ minds that the product in question is not highly processed, flavored, and
colored. (Oral Argument Tr. at 21: 19-25).

While this Court has recognized that [a1 consumer

has not experienced any injury if the consumer merely has some expectation about a product that is
not met[,]” it has found the prerequisite reasonable expectation where it was induced by a
misrepresentation, and [plaintiffs’) expectation was not met.” Smajlal v. Campbell Soup Co., 782
F. Supp. 2d 84, 99 (D.N.J. 2011). Plaintiffs have alleged that they relied on Tropicana’s
representation that the NFC juice sold was “100% pure and natural orange juice” in deciding to
purchase the product.

(CAC

¶ 18—24).

This Court finds truth in Plaintiffs’ assertion that many

of the cases relied on by Tropicana to refute Plaintiffs’ claim of reasonable expectations involve
representations that rise to a level beyond those made by Tropicana.

In re Sony HDTV

Television Litig., 758 F. Supp. 2d 1077, 1089 (S.D. Cal. 2010) (wherein defendants claims that its
televisions were of “superior” or “high” quality were considered “mere puffery” and did not create
a reasonable expectation); Hemy v. Perdue Farms. Inc.. Civ. No. 11—888. 2011 WL 6002463
(D.N.J. Nov. 30, 2011) (finding Plaintiffs could not claim a reasonable expectation that they
believed that defendant’s chickens were humanly slaughtered based on defendants’

12

representations they were “humanely raised”); In re Toshiba Am. RD DVD Mktg. & Sales
Practices Litig., Civ. No. 08—939. 2009 WL 294008, at *9 (D.N.J. Sept. 11. 2009) (finding
defendant’s representations that RD DVD was format for today, tomorrow, and beyond” to be
“mere puffery,” insufficient to establish plaintiffs reasonable expectation that defendants \VOUld
continue to manufacture the product indefinitely); Rooney v. Cumberland Packing Crop., Civ, No,
12-0033, 2012 WL 1512106, at *4 (S.D. Cal. Apr. 16, 2012) (plaintiffs were not reasonable in
their expectations that defendant’s product contained unprocessed, unrefined sugar, where the box
‘repetitively and clearly indicate[d] that the product contain[edj pure natural cane turbinado
sugar”).
In addressing FDA regulations. courts have ruled that “reasonable consumers should [not I
be expected to look beyond misleading representations on the front of the box to discover the
truth.” Williams v. Gerber Products Co., 552 F.3d 934, 939 (9th Cir. 2008) (“We do not think that
the FDA requires an ingredient list to correct those misinterpretations and provide a shield for
liability for the deception.”). That Tropicana has labeled its juice “pasteurized” does not
inherently “provide a shield for liability for the deception” that its product has no added flavoring
or is 100% pure and natural orange juice. See Williams, 552 F.3d at 939.

Similarly, this Court

agrees that there is no supporting evidence for the proposition that consumers of Tropicanas NFC
juice, including Plaintiffs, understood the intricacies relating to the shelf life and processing of the
orange juice so as to destroy a reasonable expectation of the product’s freshness. As this Court
touched on during oral arguments, allowing this matter to progress to the discovery phase will
provide the court with a more detailed answer to the question of whether the named Plaintiffs
believed they were getting fresh, as opposed to pasteurized orange juice.

Ii

(Oral Argument Tr. at

13:13-1 5).
Alleged Pleading Deficiencies in Individual Causes of Action

C.
1.

Satisfaction of Rule 9(b)

Tropicana next argues that Plaintiffs fail to satisfy the Rule 9(b) pleading standard.
fraud-based claim, a court may grant a motion to dismiss pursuant

to

For a

Rule 9(h) if the plaintiff fails

to plead with the required particularity. FED. R. Civ. P. 9(b) (“Rule 9(b)”).

Plaintiffs must

satisfy the heightened pleading requirements of Rule 9(b), which requires that “in all averments
of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with

particularity.”

FED.

R. Civ. P. 9(b). The heightened pleading standard gives defendants “notice

of the claims against them, provides an increased measure of protection for their reputations, and
reduces the number of frivolous suits brought solely to extract settlements.” In re Burlington
Coat Factory Securities Litigation, 114 F.3d 1410, 141 8 (3d Cir. 1996).

Essentially. “[al

plaintiff must support allegations of fraud with all the essential factual background that would
accompany the first paragraph of any newspaper story

—

that is, the who, what, when, where, and

how of the events at issue.” Hemy v. Perdue Farms. Inc.. Civ. No. 11—888, 2011 WL 6002463.
at *13 (D.N.J. Nov. 30, 2011) (internal citations omitted).
For purposes of the instant motion, Plaintiffs have satisfied Rule 9(b). Plaintiffs have
alleged the specifics of what was purchased, i.e. each Plaintiff alleges they have purchased one or
more of Tropicana’s NFC juice cartons during the Class Period. (CAC

¶

18-24).

Plaintiffs

further allege that misrepresentations by Tropicana occurred uniformly in advertisements for its
NFC juice and on the labeling and packaging of all Tropicana’sNFC juice.

(CAC 1,6. 12, 43.

45-52). Plaintiffs assert, and this Court agrees, that had Plaintiffs identified each individual

14

purchase of NFC juice, it would have no significant impact on Tropicana’s ability to respond to
the allegations in the CAC. Plaintiffs sufficiently allege when they viewed Tropicana’s
advertisements, that those advertisements were misrepresentations which incited them to
purchase Tropicana’s orange juice, and the frequency with which they purchased the NFC juice.
Moreover, courts in this District have recognized that even where a plaintiff has not specifically
alleged when she viewed a product’s label, the Court may reasonably infer that Plaintiff saw the

labels at the time of the product’s purchase, in instances where the plaintiff has alleged that the
labels “reinforced” her decision to purchase the products. ç. Lieberson v. Johnson & Johnson
Consumer Companies, Inc., 865 F. Supp. 2d 529, 540 (D.N.J. 201 1).

In this case, Plaintiffs

allege that “[t]hroughout the Class Period, Tropicana labeled and advertised its NFC Juice as
being ‘100% pure and natural orange juice.” (CAC

¶

18). Further, Plaintiffs assert that the

alleged misrepresentations appeared on the labels, packaging, and advertisements for Tropicana’s
orange juice throughout the Class Period. Therefore, the “where” requirement may be satisfied
by the misrepresentations allegedly contained on Tropicana’s labels or packages; there need not
be strict identification of one particular store location where it is alleged that the labeling and
packaging in question was sold in thousands of locations throughout the country. gg Astiana v.
Ben & Jerry’s Homemade, Inc., Civ. No. 10—4387, 2011 WL 2111796, at *6 N.D. Cal, May 26,
2011); Smajlaj v. Campbell Soup Co., 782 F. Supp. 2d 84, 104 (D.N.J. 2011). Plaintiffs have
alleged they have paid a price premium to Tropicana due to the alleged mislabeling. (CAC
172). For purposes of the instant motion, Plaintiffs have satisfied the Rule 9(b) pleading
standard.
2. Ascertainable Loss or Injury

15

¶

Tropicana argues that Plaintiffs have failed to establish that they suffered an
ascertainable loss in accordance with New York and New Jersey consumer protection laws
(Counts Iii, IV. and V). Plaintiffs allege that they did not receive the product for which they
bargained as a result ofTropicana’s misrepresentations. (See. çg.. CAC

¶

172). Plaintiffs

contend that Tropicana extracts a premium price for the product in question, based on the fact that
the product is represented as fresh-squeezed. (çç

CAC

¶

10-1 1, 19).

The New Jersey Consumer Fraud Act (“NJCFA”) does not require a plaintiff to prove
actual out-of-pocket loss in order to successfully state a claim. Cox v. Sears Roebuck & Co.. 1 38
N.J. 2. 36 (1994). An ascertainable loss may occur where a “consumer received less than what
[he] was promised.” Union Ink Co. v. AT&T Wireless. 352 N.J. Super. 617. 646 (App. Div.
2002). The payment ofa price premium may satisfy the injury requirement.

Sc Smajlaj. 782 F.

Supp. 2d at 99.
New York law poses a similar requirement.

$ N.Y.

G.B.L. §S 349 and 350.

New

York law requires that “[tjo establish a cause of action pursuant to [Sections 349 and 350] a
plaintiff is only required to demonstrate that the advertisement was misleading in a material
respect and that he was injured, while an injured person has been defined as one who was misled or
deceived by such an advertisement.” McDonald v. N. Shore Yacht Sales. Inc.. 513 N.Y.S. 2d
590, 593 (N.Y. Sup. Ct. 1987).

Courts in New York have also recognized that the payment of a

heightened price in reliance on a misrepresentation may satisfy the injury requirement.

S.c.

Bildstein v. MasterCard Int’l Inc., 329 F. Supp. 2d 410, 416 (S.D.N.Y. 2004). Therefore, for
purposes of a motion to dismiss, Plaintiffs have satisfied the injury and ascertainable loss
requirements of both New York and New Jersey. Therefore. Defendants’ Motion to Dismiss in

16

reuards to Counts Ill. IV. and V is denied.
3. Unfair Trade Practices and Punitive Damages Claims Under Wisconsin Law
Plaintiff Simic, the Wisconsin Plaintiff, asserts claims under two Wisconsin statutes: (1)
Wisconsin Statute

§

100.18 (Count IX), which prohibits false and deceptive advertising for

“merchandise;” and (2) Wisconsin Statute

§

100.20 (Count X), which prohibits “unfair trade

practices” that violate orders from the Wisconsin Department of Agriculture, Trade, and
Consumer Protection (“DATCP”). Tropicana alleges that Plaintiff Simic has failed to state a
claim under either statute. This Court agrees as to Count IX, but disagrees as to Count X.
As it pertains to the first statute,

§

1 00. 18, the Wisconsin Court of Appeals has held that the

statute is not applicable to “articles of food.” See Gallego v. Wal-Mart Stores, Inc., 707 N,W.2d
539. 544 (Wis. Ct. App. 2005) (“When the ‘statutory background’ of § 100.1 8 and 100.183 is
100. 18 to

considered, it becomes clear that the legislature does not intend merchandise’ in

§

include ‘articles of food”). That Court recognized another Wisconsin statute,

100.83, to be

§

applicable to advertising involving “articles of food,” and that that statute did not provide for a
private right of action. Id. Therefore, Plaintiff Simic’s Wisconsin Statute

§

100.18 (Count IX)

claim must be dismissed.
Wisconsin Statute

§

1 00.20(2)(a) gives the DATCP authority to “issue general orders

forbidding methods of competition in business or trade practices in business which are determined
by the department to be unfair.” Section 100.20 also authorizes a private right of action:
Any person suffering pecuniary loss because of a violation by any other person of any
order issued under this section may sue for damages therefor in any court of competent
jurisdiction and shall recover twice the amount of such pecuniary loss, together with costs.
including a reasonable attorney’s fee.
Wis.

STAT.

§

100.20(5).

The Complaint alleges that Plaintiff Simic suffered a pecuniary loss due
17

to Tropicana’s violation of Wis. ADNIIN. CODE
requires clear and

conspicuous

§

259-60). ATCP 902

ATCP 90.02. (CAC

labeling as to a products identity and requires that the

aforementioned declaration of identity from being false. deceptive, or misleading.
CODE

§

§

Wis.

AD\IIN.

ATCP 90.02. Tropicana argues disclosure is not required; rather it notes that Wis. ST:\T.

100.20(5) grants a private right of action only for the violation of an “order issued under this

section,” (Def’s Mot. Br. 33). The Court of Appeals of Wisconsin has rejected that argument,
finding that:
The clear import of this note is that the DATCP views its authority for all of the regulations
included within ch. ATCP 90 as flowing from numerous. overlapping statutory directives.
one of which is the legislature’s directive under Wis. Stat. § l00.20(2)(a) that the
department may enact rules forbidding unfair trade practices. Moreover, the department
plainly expresses its position in the introductory note that violations of any of the
provisions in ch. ATCP 90 may be pursued by private parties under § 100.20(5).
Gallego v. Wal-Mart Stores, Inc., 707 N.W.2d 539, 547 (Wis. Ct. App. 2005) (affirming
the circuit court’s dismissal of plaintiff’s claim under Wis. STAT.
dismissal of plaintiff’s Wis. STAT.

§

§

§

100.20 claim survives, while dismissal

100.1 8 claim.

Plaintiff Simic further seeks punitive damages under Wis.
(CAC at

¶J 60).

100.18 but reversing the

100.20(5) claim for the aforementioned reasons). This Court

thus similarly finds that, here, Plaintiff Sirnic’s Wis. STAT.
is appropriate for the

§

STAT.

§

895.043(3) (Count Xl).

Simic alleges that Tropicana intentionally pursued and continues to pursue a

fraudulent course of action intended to profit at the expense of consumers.

(CAC ¶ 60). Tropicana

asserts that Simic may not successfully state such a claim as his consumer fraud claims, detailed
above, are the only arguable basis for which he may seek punitive damages.

This Court agrees that

the punitive damage claim is inappropriate here as an independent count fbr punitive damages
“boilerplate allegation[s] that a defendant acted in intentional
18

disregard

ol plaintilis rights [are] not

sufficient.” Unified Catholic Sch. of Beaver Dam Educ. Ass’n v. Universal Card Servs. Corp.. 34
F. Supp. 2d 714, 719 (ED. Wis. 1999). Thus, Plaintiff Simic’s claim for punitive damages under
Wisconsin law is also dismissed.
4. Plaintiff Simic’s Breach of Express Warranty Claim
Finally, Tropicana argues that dismissal is also appropriate for Simic’s breach of express
warranty claim (Count TI) due to a lack of privity between the parties.

Simic asserts that privity

has been established due to the factual allegation contained in the Complaint that ‘Tropicana.
expressly warranted that the [not-from-concentrate] Juice was 100% pure and natural orange
juice.” (CAC

¶

196). In addition, Simic has alleged that he repeatedly saw and read

Tropicana’s misrepresentations

.

.

.

[and that he] purchased Tropicana [not-from-concentrate

“NFC”] Juice instead of the less costly Minute Maid Recon because he believed and relied on
Tropicana’s misrepresentations that its NFC Juice is ‘100% pure and natural’ in deciding to
purchase Tropicana NFC Juice.” (CAC

¶ 24).

Wisconsin courts have recognized that, in certain instances, a manufacturer who is not a
party to the sales contract may be held liable for a breach of express warranty. under the theory that
a unilateral contract arose between the ultimate purchaser and the manufacturer. jvSpy_
Electronics. Inc., Civ. No. 05-307. 2005 WL 2406145. at *5 (W.D. Wis. Sept. 28, 2005) (citing
Paulson v. Olson Implement, 107 Wis. 2d 510, 517 (Wis. 1982)). Plaintiffs do not plead a
warranty between the retailer and Plaintiffs and plead such a relationship between them and the
manufacturer, Tropicana. Thus, Plaintiffs’ breach of express warranty claim must survive this
stage.
5. Unjust Enrichment Claim

19

Tropicana also alleges that Plaintiffs’ unjust enrichment claim, contained in Count 1,
should be dismissed because Plaintiffs have not, and are unable, to plead a direct relationship exists
between Tropicana and themselves. (Deli’s Br. 25). Plaintiffs, in turn, argue that Tropicana
overstates the requirements of unjust enrichment under New Jersey law. (Pls.’ Br. 33).
Under New Jersey law, to establish a claim for unjust enrichment. “a plaintiff must show
that defendant received a benefit and that retention of that benefit would be unjust.” Fuller v.
PepsiCo, Inc., Civ. No, 11—4989, 2012 WL 3990635, at *4 (D.N.J. Sept. 11, 2012) (citing VRG
Corp. v. GKN Realty Corp., 641 A.2d 519 (N.J. 1994)). The requirement that a direct relationship
between plaintiff and defendant be established “does not,

.

.

preclude a consumer from ever bringing

an unjust enrichment claim against a manufacturer simply because the consumer purchased the
product at issue from a third-party retailer,” Stewart v. Beam Global Spirits Wine, Inc., Civ. No.
11—5149, 2012 WL 2523039, at *6..7 (D.N.J. June 29, 2012) (recognizing “where a plaintiff alleges
that a defendant manufacturer has made false claims or misrepresentations directed for the purpose
of generating retail sales, and where those retail sales could have the effect of increasing the amount
of wholesale sales to the manufacturer, it is plausible that a plaintiff can show evidence of a
sufficiently direct relationships between the parties under New Jersey law.”). In determining
whether a claim for unjust enrichment has been sufficiently plead, a distinction has been made
between defendants who were alleged to have misrepresented the product at the heart of litigation
and defendants who were innocent third parties “who did not unjustly retain a benelit, did not engage
in allegedly fraudulent conduct, and had little to no dealings with the plaintiffs who sought relief
from them,” Id. Plaintiffs allege, and for the purposes of the instant motion the Court must accept
as true, that Tropicana launched a marketing campaign in which it misrepresented its juice as “100%
20

pure and natural orange juice,” when it was the product of extensive processing, coloring, and
flavoring. (CAC

¶ 43-60).

Further, Plaintiffs allege that “Tropicana unscrupulously capitalizes

on consumers’ heightened demand for natural products by deceptively marketing its NFC juice.”
(CAC

¶ 60).

Accordingly, Plaintiffs’ unjust enrichment claim may proceed and the motion to

dismiss Count II of the CAC is denied.
D.

Alleged Violations of State Consumer Protection Laws of Various States

In Count XII of the Complaint, Plaintiffs allege a purported claim for “Violation of the
State Consumer Protection Laws of Various States.” (CAC

¶J 266-320).

As Tropicana points

out, Plaintiffs do not assert these claims on behalf ofany plaintiff in particular, stating only that they
are made on behalf of “Plaintiffs in the Consumer Protection Subclass.” (CAC

¶ 267).

The

Complaint contains no definition for the “Subclass,” however, states that Count XII pertains
specifically to states for which there is no named Plaintiff—i.e. Alaska, Arizona, Delaware, (See
CAC

¶ 272-317).

Plaintiffs are not permitted to bypass the pleading requirements through bare

bones allegations on behalf of a putative class containing no named Plaintiffs.

See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 564 (1992) (finding no plead facts that demonstrated how the
harm in question would produce imminent injury to the named plaintiffs); Lewis v. Casey, 518 U.S.
343, 357 (1996) (examining whether named inmate plaintiff in the litigation suffered from the
inadequacy in which the suit empowered the court to remedy); O’Shea v. Littleton, 414 U.S. 488,
494 (1974); see also Zimmerman v. HBO Affiliate Grp., 834 F.2d 1163, 1169 (3d Cir, 1987) (“It is
well settled that to be a class representative on a particular claim, the plaintiff must himself have a
cause of action on that claim.”). Based on the foregoing, this Court finds that Plaintiffs have not
sufficiently alleged factual allegations to sustain Count XII. That Count is accordingly dismissed.

21

IV.

CoNcLusioN
For the foregoing reasons, Tropicana’s motion is granted in part and denied in part. An

appropriate Order accompanies this Opinion.

/
cc:

M. Cavanaugh,

All Counsel of Record
Joseph A. Dickson, U.S.M.J.

22

,J.