Cosio v. Vitaquest International, LLC et al
Filing
49
MEMORANDUM & ORDER granting in part defendants' 37 Motion for Summary Judgment: The Court denies defendants' consolidated summary judgment motion to dismiss the plaintiff's claims for lack of Article III standing for failure to estab lish a cognizable "injury in fact." A reasonable juror could find that Cosio purchased E-BOOST powder packets in 2011, and the E-BOOST powder packets are sufficiently similar to the E-BOOST dissolvable tablets and liquid shots to establish Cosio's standing at this stage of the case for those admittedly unpurchased products. However, the Court dismisses plaintiff's claims under the consumer protection laws of New Jersey and New York in both cases, because Cosio allegedly purchased E-BOOST products only in his home state of California. Ordered by Judge Raymond J. Dearie on 8/24/2015. (Chee, Alvin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------- x
CEDRIC MOSELY and J. RAFAEL
COSIO, on behalf of themselves and all
others similarly situated,
Plaintiffs,
- against -
MEMORANDUM & ORDER
13 CV 2470 (RJD) (RLM)
VITALIZE LABS, LLC,
Defendant.
-------------------------------------------------------- x
J. RAFAEL COSIO, on behalf of himself
and all others similarly situated,
Plaintiff,
- against -
14 CV 4474 (RJD) (RLM)
VITAQUEST INTERNATIONAL, LLC, and
GARDEN STATE NUTRITIONALS INC.,
Defendants.
-------------------------------------------------------- x
VITAQUEST INTERNATIONAL, LLC, and
GARDEN STATE NUTRITIONALS INC.,
Defendants/Third-Party
Plaintiffs,
- against VITALIZE LABS, LLC,
Third-Party Defendant.
-------------------------------------------------------- x
DEARIE, District Judge
These consumer class actions seek damages arising out of the purchase of the vitamin
supplement “E-BOOST.” E-BOOST is the brand name of a variety of energy products marketed
and sold by Vitalize Labs, LLC (“Vitalize”). E-BOOST products are manufactured for Vitalize
by Garden State Nutritionals, LLC (“Garden State”), a division of VitaQuest International, LLC
(“VitaQuest”). The named plaintiff, J. Rafael Cosio, alleges that E-BOOST fraudulently and
deceptively marketed itself as delivering a “boost” to consumers’ immune systems. Defendants
in both cases have moved for summary judgment, arguing that Cosio lacks Article III standing.
For the reasons discussed below, the Court grants in part defendants’ consolidated motions.
BACKGROUND
Vitalize markets and sells various energy products under the trade name “E-BOOST,”
such as powder packets, dissolvable tablets, and liquid shots, all in a variety of flavors. Statement
of Material Facts in Support of Vitalize Labs, LLC’s Motion for Summary Judgment, ECF No.
54-2 at ¶¶ 1-2. Vitalize pitches its E-BOOST products as a “healthy” alternative to sugary energy
drinks because they contain caffeine derived from green tea, as well as various vitamins,
minerals, and natural fruit, seed, vegetable, and root extracts. Id. at ¶ 3. However, Cosio alleges
that Vitalize also used to market E-BOOST as delivering a “boost” to consumers’ immune
systems. Plaintiff J. Rafael Cosio’s Consolidated Responses to Statements of Material Facts by
Defendants, ECF No. 55-1 at ¶¶ 1, 3.
Cosio and Cedric Mosely brought a class action suit against Vitalize in 2013 (the
“Vitalize Suit”), claiming various violations under the consumer protection laws of their
respective home states, California and New York. Vitalize Complaint, ECF No. 1. They sought
to represent a nationwide class, consisting of all consumers who purchased E-BOOST products
for personal use during the relevant period, as well as state classes for California and New York.
Id. at ¶¶ 29-30. Mosely later withdrew from the case, leaving Cosio as the sole remaining named
plaintiff. Stipulation of Voluntary Dismissal of Pl. Cedric Mosely, ECF No. 18.
2
The complaint in the Vitalize Suit states that Cosio “purchased E-BOOST’s All-Natural
Orange Flavor and Natural Pink Lemonade Flavor powder packets” in 2011 “from his local CVS
[s]tore in West Hollywood,” California, “based on the representation that the products would
boost his immunity.” Vitalize Complaint at ¶ 7.
Difficulty arose, however, during Cosio’s July 2014, deposition, when Cosio repeatedly
testified that he had purchased E-BOOST powder packets at his local CVS store, as well as at
Target. Declaration of Anthony A. Lopresti in Support of Def.’s Motion for Summary Judgment,
ECF No. 54-4 [hereinafter Lopresti Decl.] at Ex. 1, 23:9-10, 49:11-13, 51:6-10, 95:23-25, 96:1-7.
At the end of the deposition, Vitalize’s attorneys revealed that neither CVS nor Target carried
E-BOOST products, a claim that has been substantiated by declarations from employees at both
stores. Id. at 99:19-20, 100:2-3; see also Declaration of Thomas Burke, ECF No. 54-5 at ¶ 5
(CVS); Declaration of Lily Beilin, ECF No. 54-6 at ¶ 5 (Target). Confronted with this assertion,
Cosio responded, “I don’t know. I said in the beginning that [CVS] was probably one of the
places I bought [E-BOOST].” Lopresti Decl., Ex. 1 at 99:25, 100:1 (emphasis added).
Notably, at the beginning of his deposition, Cosio stated that he used to buy vitamins at
CVS, Target, and Capitol Drugs. Id. at 16:23-25. And throughout the deposition, Cosio
frequently noted that his memory was not precise and that CVS and Target were merely some of
the places where he had purchased E-BOOST products. See, e.g., id. at 49:11-13, 51:6-10, 87:26, 96:1-7, 99:19-25, 100:1-5. Defendants concede that the Capitol Drugs in West Hollywood did
carry orange flavor E-BOOST powder packets in 2011 but deny that Capitol Drugs carried the
pink lemonade flavor. Amended Declaration of Imelda Malijan-Sjam, ECF No. 56-1 at ¶¶ 2-3.
Plaintiff moved for an extension of time to amend the Vitalize complaint. ECF No. 24.
The motion requested permission merely to add defendants Garden State and VitaQuest to the
3
Vitalize Suit, but the proposed amended complaint also changed the location of Cosio’s alleged
purchases from “CVS” to “retail stores in West Hollywood.” Id. at 1 and Ex. 1, ¶ 6. Vitalize
opposed the amendment, accusing plaintiff of seeking to surreptitiously change his story after
being caught in a lie. ECF No. 26. Magistrate Judge Roanne L. Mann denied plaintiff’s motion
without prejudice, stating that plaintiff had not shown good cause for extending the deadline and
Vitalize would be prejudiced by having discovery reopened. ECF No. 31. Plaintiff did not
appeal. Shortly thereafter, Vitalize indicated its intent to move for summary judgment for lack of
Article III standing. ECF No. 33.
Unable to add defendants or change the location of his alleged purchases, plaintiff
quickly initiated a separate lawsuit against Garden State and VitaQuest (the “VitaQuest Suit”)
under the consumer protection laws of Cosio’s home state, California, as well as New Jersey and
New York. VitaQuest Complaint, ECF No. 1. Notably, this new complaint provided that Cosio
purchased the E-BOOST powder packets from “retail stores in the Los Angeles area.” Id. at ¶ 6.
Shortly after filing the VitaQuest complaint, plaintiff moved to consolidate the Vitalize
Suit and the VitaQuest Suit, ECF No. 7, which this Court denied without prejudice, Electronic
Order, No. 14-CV-4474 (E.D.N.Y. entered Oct. 10, 2014). Garden State and VitaQuest
subsequently moved to join in Vitalize’s summary judgment motion, ECF No. 25, a request
that—given the common bases for the motions—the Court granted, Electronic Order, No. 14CV-4474 (E.D.N.Y. entered Dec. 23, 2014).
The consolidated summary judgment motion seeks to dismiss all or some of the
plaintiff’s claims in both cases for lack of Article III standing on one of three grounds. First,
defendants seek to dismiss the action in its entirety, based on the argument that Cosio has failed
to establish a cognizable “injury in fact,” because Cosio cannot prove that he actually purchased
4
any E-BOOST products. Second, defendants assert that Cosio does not have standing to bring
claims for certain E-BOOST products that Cosio admits he never purchased (such as the
E-BOOST dissolvable tablets and liquid shots). Third, the defendants in the VitaQuest Suit seek
to dismiss plaintiff’s claims under the consumer protection laws of New Jersey and New York,
because Cosio allegedly purchased E-BOOST products only in his home state of California.
DISCUSSION
Summary judgment is appropriate where “‘the evidence, viewed in the light most
favorable to the party against whom it was entered, demonstrates that there are no genuine issues
of material fact and that the judgment is warranted as a matter of law.’” Delaney v. Bank of Am.
Corp., 766 F.3d 163, 167 (2d Cir. 2014) (quoting Global Network Commc’ns, Inc. v. City of
New York, 562 F.3d 145, 150 (2d Cir. 2009)); see also Fed. R. Civ. P. 56(a). In deciding whether
summary judgment is warranted, the Court must “resolve all ambiguities and draw all reasonable
inferences against the movant.” Delaney, 766 F.3d at 167 (quoting Aulicino v. N.Y.C. Dep’t of
Homeless Servs., 580 F.3d 73, 79-80 (2d Cir. 2009)) (internal quotation marks omitted).
A. Article III Standing
Under the case-or-controversy requirement of Article III, § 2, of the Constitution,
plaintiffs must establish that they have standing to sue. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). “To have such Article III standing, ‘the plaintiff must have alleged such a
personal stake in the outcome of the controversy as to warrant [his] invocation of federal-court
jurisdiction and to justify exercise of the court’s remedial powers on [his] behalf.’” Cortlandt St.
Recovery Corp. v. Hellas Telecomm., S.a.r.l., 790 F.3d 411, 417 (2d Cir. 2015) (quoting Warth
v. Seldin, 422 U.S. 490, 498-99 (1975)) (alterations omitted). “A plaintiff claiming such a stake
must establish” that (1) “[he] has sustained an ‘injury in fact’ which is both ‘concrete and
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particularized’ and ‘actual or imminent,’” (2) “the injury was in some sense caused by the
opponent’s action or omission,” and (3) “a favorable resolution of the case is ‘likely’ to redress
the injury.” Id. (citing Lujan, 504 U.S. at 560-61). And “‘each element . . . must be
supported . . . with the manner and degree of evidence required at the successive stages of the
litigation.’” Lewis v. Casey, 518 U.S. 343, 358 (1996) (quoting Lujan, 504 U.S. at 561).
“That a suit may be a class action . . . adds nothing to the question of standing, for even
named plaintiffs who represent a class must allege and show that they personally have been
injured . . . .” Id. at 357 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n. 20
(1976)) (internal quotation marks omitted). Accordingly, “[f]or each claim asserted in a class
action, there must be at least one class representative . . . with standing to assert that claim.” Fort
Worth Emps.’ Ret. Fund v. J.P. Morgan Chase & Co., 862 F.Supp.2d 322, 331 (S.D.N.Y. 2012)
(citing Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care,
L.L.C., 504 F.3d 229, 241 (2d Cir. 2007)). “At the same time, it is important to recognize that the
entire concept of class actions is in some degree of tension with the requirement of standing.” Id.
at 332. Therefore, courts do not require that a “named plaintiff . . . literally suffer the same actual
injury that each class member suffered.” Id. “Rather, the named plaintiff must ‘show that he is
within the class of persons who [were] concretely affected’ by ‘injurious conduct’ by the
defendant such that that plaintiff has the ‘necessary stake in litigating’ the case.” Id. (quoting
Blum v. Yaretsky, 457 U.S. 991, 999 (1982)).
1. A Reasonable Juror Could Find that Cosio Purchased E-BOOST
Defendants argue that Cosio has failed to establish the cognizable “injury in fact”
required for Article III standing because he cannot show that he ever purchased any E-BOOST
products. This argument has three parts. First, defendants argue that Cosio’s testimony regarding
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his E-BOOST purchases is not credible. Second, defendants argue that Cosio lacks physical
proof of his purchases. Third, defendants argue that Cosio is bound by his prior assertions that he
purchased E-BOOST at stores that defendants claim do not in fact sell the product.
a. Credibility
Despite defendants’ legitimate position on Cosio’s credibility, this is not an issue the
Court may address. The Second Circuit has held that “where the plaintiff relies almost
exclusively on his own testimony, much of which is contradictory and incomplete, it will be
impossible for a district court to determine whether the jury could reasonably find for the
plaintiff . . . without making some assessment of the plaintiff’s account.” Rojas v. Roman
Catholic Diocese of Rochester, 660 F.3d 98, 105 (2d Cir. 2011) (quoting Jeffreys v. City of New
York, 426 F.3d 549, 554 (2d Cir. 2005)) (internal quotation marks omitted). However, such
credibility assessments should be reserved for “extraordinary cases, where the facts alleged are
so contradictory that doubt is cast upon their plausibility . . . .” Id. at 106 (quoting Jeffreys, 426
F.3d at 555) (internal quotation marks omitted) (emphasis added); see, e.g., Jeffreys, 426 F.3d at
551-52, 555 (affirming district court’s grant of summary judgment to the city of New York in
police brutality case where plaintiff testified on multiple occasions that he had jumped out of a
window before changing his story to accuse the police of throwing him through the window).
Indeed, the Second Circuit has cautioned district courts against “routinely engag[ing] in
searching, skeptical analyses of parties’ testimony in opposition to summary judgment.” Rojas,
660 F.3d at 106. “[I]f there is a plausible explanation for discrepancies in a party’s testimony, the
court considering a summary judgment motion should not disregard the later testimony because
an earlier account was ambiguous, confusing, or simply incomplete.” Jeffreys, 426 F.3d at 555
n.2 (internal quotation marks and citation omitted) (emphasis in original); see also Matheson v.
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Kitchen, 515 Fed. App’x. 21, 24 (2d Cir. 2013) (holding that it was error to disregard testimony
when, although there were “variations in the details of [the] account, the substance of [the]
testimony [could ]not fairly be characterized as fundamentally inconsistent or incoherent”); Jin
Dong Wang v. LW Rest., Inc., -- F. Supp. 3d --, 2015 WL 363871, at *15 (E.D.N.Y. 2015)
(declining to grant summary judgment to defendants who “highlighted several potentially
inconsistent statements” of the plaintiff, where many of the statements were “not directly
contradictory . . . [,] may be explained when read in context with the record as a whole, or may
have another plausible explanation, such as the witness’ lapse in memory”).
Defendants argue that the statements Cosio made in his pleadings and deposition
regarding the locations of his alleged E-BOOST purchases have been “definitively and
unequivocally” proven false and Cosio’s credibility thereby destroyed. Defendants’
characterization of Cosio’s statements, however, is hyperbolic. Given the three-year time span
between the alleged purchases and Cosio’s deposition—as well as Cosio’s repeated assertions
that he did not remember the details of the purchases and his initial statement that he sometimes
purchased vitamins at Capitol Drugs—a reasonable juror could find that Cosio had merely
incorrectly recalled the location of his purchases.
The Court also rejects defendants’ argument that Cosio’s deposition testimony prevents a
finder of fact from concluding that Cosio purchased E-BOOST at any store. That defense
counsel carefully guided Cosio into a statement that he purchased E-BOOST at two stores that
may in fact not sell the product will no doubt be of interest to a jury. However, neither this welldirected testimony, nor Cosio’s use of the word “vitamins” when describing his purchases at
Capitol Drugs, justifies a ruling that there is no basis for a finder of fact to conclude that Cosio
purchased E-BOOST at any store, Capitol Drugs or otherwise.
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b. Proof of Purchase
Next, defendants maintain that they are entitled to summary judgment because Cosio’s
alleged purchases are undocumented by any physical proof of purchase, such as receipts or credit
card statements.1
While the analysis required for a summary judgment motion is different than that
required for class certification, the Court is guided by the reasoning in In re Scotts EZ Seed
Litigation that “[i]f proof of purchase was required . . . there would be no such thing as a
consumer class action, especially with respect to low-cost products.” 304 F.R.D. 397, 407-08
(S.D.N.Y. 2015) (determining that class was ascertainable despite the fact that consumers were
unlikely to have retained proof of purchase) (internal quotation marks and citation omitted).2
This policy concern is equally present at the summary judgment stage.
The Court therefore finds that, despite the obvious flaws in plaintiff’s position, a
reasonable juror could conclude that Cosio purchased E-BOOST in 2011, despite his lack of
physical proof of purchase. See, e.g., Weiner v. Snapple Bev. Corp., No. 07-CV-8742 (DLC),
2011 WL 196930, at *3-5 (S.D.N.Y. Jan. 21, 2011) (granting summary judgment to Snapple not
1
Cosio’s counsel claims to have some of their client’s unused E-BOOST powder packets.
However, the Court declines to base its decision on the existence of these purported leftovers.
2
“District judges in this [Circuit] have expressed conflicting views on whether putative
classes are ascertainable when consumers are unlikely to retain receipts or other records of
purchase.” Id. at 407; compare Weiner v. Snapple Bev. Corp., No. 07-CV-8742 (DLC), 2010
WL 3119452, at *13 and n.22 (S.D.N.Y. Aug. 5, 2010) (denying motion for class certification
where not even the “named plaintiffs ha[d] receipts or any other records for their Snapple
purchases”) with Ebin v. Kangadis Food Inc., 297 F.R.D. 561, 567 (S.D.N.Y. 2014) (noting, in
determining that class of consumers who had purchased pomace oil marketed as “100% Pure
Olive Oil” was ascertainable, that “Snapple [went] further than,” the court was “prepared to go,
and, indeed, would render class actions against producers almost impossible to bring”); but see
Ault v. J.M. Smucker Co., -- F. Supp. 3d --, 2015 WL 4692454, at *5 (S.D.N.Y. 2015)
(reconciling these cases by noting that in Ebin “every bottle of olive oil sold . . . contained the
allegedly misleading label,” whereas in Snapple, “potential class members were required to
remember the specific . . . juice they had supposedly purchased” because only certain products
were labeled “All Natural”).
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because the named plaintiffs lacked physical receipts for their purchases, per se, but because the
plaintiffs’ testimony was insufficient to establish how much of a premium they had paid for
beverages with the misleading “All Natural” label); In re HP Inkjet Printer Litigation,
No. 05-CV-3580 (JF), 2008 WL 2949265, at *3 (N.D. Cal. July 25, 2008) (concluding that “a
reasonable jury could find that [plaintiff] ha[d] suffered a cognizable injury,” of purchasing
replacement ink cartridges for his printer after receiving premature low-ink warnings, despite the
fact that plaintiff “ha[d] no proof of purchase evidencing that he ever owned” the subject printer
nor any “receipts for the purchase of any of the replacement ink cartridges”).
c. Judicial Admissions
Finally, defendants argue that the statements in the Vitalize complaint3 and Cosio’s
deposition testimony regarding his alleged purchases at CVS and Target constitute a judicial
admission to which he must be held.
“Judicial admissions are ‘formal concessions [that are] binding upon the party making
them.’” Maurizio v. Goldsmith, 84 F. Supp. 2d 455, 464 (S.D.N.Y. 2000) (citation omitted). For
example, “[a] party’s assertion of fact in a pleading is a judicial admission by which it normally
is bound throughout the course of the proceeding.” Bellefonte Re Ins. Co. v. Argonaut Ins. Co.,
757 F.2d 523, 528 (2d Cir. 1985); see also Morgan v. Nassau Cty., No. 03-CV-5109 (SLT)
(WDW), 2009 WL 2882823, at *17 (E.D.N.Y. Sept. 2 2009) (“While a plaintiff may plead
inconsistent claims . . . he cannot escape summary judgment on those claims simply by picking
and choosing his historical facts at will.”).
However, “[t]rial judges are given broad discretion to relieve the parties from the
consequences of judicial admissions in the appropriate circumstances.” In re Methyl Tertiary
3
The issue is not presented by the VitaQuest complaint.
10
Butyl Ether Products Liability Lit., 379 F. Supp. 2d 348, 371 (S.D.N.Y. 2005). “Appropriate
circumstances include where accepting the admission would be ‘manifestly unjust or if the
evidence contrary to the stipulation is substantial.’” TR 39th St. Land Corp. v. Salsa Distr. USA,
LLC, No. 11-CV-7193 (DF), 2015 WL 1499173, at *5 (S.D.N.Y. Mar. 25, 2015) (quoting
Hoodho v. Holder, 558 F.3d 184, 191 (2d Cir. 2009)); see also W. World Ins. Co. v. Stack Oil,
Inc., 922 F.2d 118, 121-22 (2d Cir. 1990) (finding admission in pleading to be conclusive against
the party who made it, in the context of a summary judgment motion, but noting that the party
who had made the admission had not claimed fraud or mistake); Triumph Const. Corp. v. New
York City Council of Carpenters Pension Fund, 29 F. Supp.3d 373, 380 (S.D.N.Y. 2014) (“A
District Court, convinced that an honest mistake had been made, the original allegation was
untrue and that justice required relief . . . may, in its discretion, relieve the party of its otherwise
binding consequence.”) (internal quotation marks and citation omitted); Dortz v. City of New
York, 904 F. Supp. 127, 146 n.6 (S.D.N.Y. 1995) (declining to rely on defendants’ admission in
their answer to resolve summary judgment motion “[s]ince [d]efendants assert[ed] that their
admission was inadvertent and that they intend[ed] to seek leave to amend”).
The relevant language in the Vitalize complaint and Cosio’s deposition testimony is not
the kind of “formal concession” typically associated with judicial admissions.4 Maurizio, 84 F.
Supp. 2d at 464. However, even if this language constitutes a judicial admission, the Court finds
that this case presents the appropriate circumstances for relief. The exact location of Cosio’s
E-BOOST purchase was not necessary at the pleading stage,5 Cosio’s deposition made clear that
4
This is not a case, for example, where the defendants seek to hold plaintiff to a prior
concession that the defendants claim is true but plaintiff now denies. Rather, defendants ask the
Court to bind plaintiff to an earlier statement that they, themselves, wholeheartedly repudiate.
5
See Ebin v. Kangadis Food Inc., No. 13-CV-2311 (JSR), 2013 WL 6504547, at *5-6
(S.D.N.Y. Dec. 11, 2013) (finding claims under New York and New Jersey consumer protection
11
he lacked a precise memory of his particular purchases, and plaintiff promptly sought to amend
the relevant language in the Vitalize complaint after being alerted of his misstatement.6 Holding
plaintiff to a strict reading of this overly precise pleading, despite his claims of honest error, is
unjustifiably severe. Therefore, to the extent the language in the Vitalize complaint and Cosio’s
deposition testimony regarding purchases at CVS and Target constitutes a judicial admission, the
Court exercises its discretion to relieve plaintiff of the binding consequences of such statements.
Those statements, of course, may still be used at trial for impeachment purposes.
2. The E-BOOST Products are Sufficiently Similar to Establish Standing at this
Stage of the Case
As an alternative to their above arguments that Cosio lacks standing because he cannot
establish that he ever purchased any E-BOOST products, defendants assert that Cosio does not
have standing to bring claims for certain E-BOOST products that Cosio admits he never
purchased (such as the E-BOOST liquid shots and dissolvable tablets).
Plaintiff correctly responds, however, that under NECA–IBEW Health & Welfare Fund
v. Goldman Sachs & Co., such an argument is premature and should be addressed at the class
certification stage. 693 F.3d 145, 158 n. 9 (2d Cir. 2012) (noting that the district court “erred to
the extent it based its conclusion on the (mistaken) assumption that” the named plaintiff need
have purchased all of the financial securities purchased by the class he sought to represent and
that “[i]n any event, [plaintiff]’s standing to assert claims on others’ behalf is an inquiry separate
laws were sufficiently plead where complaint stated plaintiff had purchased the product at a
“local grocery store”); but see Soo Line R.R. Co. v. St. Louis Sw. Ry. Co., 125 F.3d 481, 483
(7th Cir. 1997) (“A plaintiff can plead himself out of court by alleging facts which show that he
has no claim, even though he was not required to allege those facts.”) (internal quotation marks
and citation omitted); see also Official Comm. of the Unsecured Creditors of Color Tile, Inc. v.
Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (citing Soo Line approvingly).
6
Granted, plaintiff’s counsel should have drawn attention to this correction in their motion
for an extension of time to amend the complaint. However, given the substantial briefing and
debate that followed, defendants can hardly claim continuing prejudice from this oversight.
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from its ability to represent the interests of absent class members”); see also In re Frito-Lay
North Am., Inc., All Nat. Litigation, No. 12-MD-2413 (RRM) (RLM), 2013 WL 4647512, at
*13 (E.D.N.Y. Aug. 29, 2013) (holding “because the plaintiffs have Article III standing, at this
stage, they may press claims, on behalf of putative class members, arising out of products that
the plaintiffs did not themselves purchase,” and noting that “[w]hether the plaintiffs’ injuries are
sufficiently similar to those of the putative class members who purchased other products . . . is a
question the Court will consider on a Rule 23 certification motion”).
Indeed, courts in this Circuit have held that, subject to further inquiry at the class
certification stage, a named plaintiff has standing to bring class action claims under state
consumer protection laws for products that he did not purchase, so long as those products, and
the false or deceptive manner in which they were marketed, are “sufficiently similar” to the
products that the named plaintiff did purchase. See, e.g., Brady v. Basic Research, L.L.C.,
No. 13-CV-7169 (SJF), 2015 WL 1542094, at *5 (E.D.N.Y. Mar. 31, 2015) (citing cases).
Defendants’ citations to non-binding precedent to the contrary are inapposite, not controlling,
and have been expressly rejected by courts in this Circuit. See, e.g., Quinn v. Walgreen Co., 958
F. Supp. 2d 533, 542 (S.D.N.Y. 2013) (noting some courts have “rhetorically ask[ed] ‘how could
[the plaintiff] possibly have been injured by representations made on a product he did not buy,’”
but finding the “better” approach to be that plaintiffs may proceed to the class certification stage
for products that they did not purchase so long as there are substantial similarities).
Defendants rely on the summary order in DiMuro v. Clinique Labs., LLC, in which the
Second Circuit held that the named plaintiffs could not bring claims relating to beauty products
they did not purchase. 572 F. App’x 27, 29 (2d Cir. 2014). “That case, however, decided the
question of class standing, not Article III standing,” and applied to thirty-five different
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advertising claims for seven beauty products, only three of which had been purchased by the
named plaintiffs. Weisblum v. Prophase Labs, Inc., -- F. Supp. 3d. --, 2015 WL 738112, at *6
(S.D.N.Y. 2015) (citing Dimuro, 572 F. App’x at 29) (emphasis in original). “Further, far from
changing the law of the Circuit (which it could not do through a summary order. . .), the panel
expressly reiterate[d] the holding of NECA–IBEW.” Id. (internal quotation marks and citations
omitted). Finally, even if plaintiff is required to allege “nearly identical” misrepresentations, he
has done so, providing label images in his complaints in both cases that show the consistency of
E-BOOST’s immunity boosting claims across their products. Therefore, the Court finds that the
E-BOOST powder packets, which Cosio claims to have purchased, are sufficiently similar to the
E-BOOST dissolvable tablets and liquid shots, which Cosio admits he never purchased, to
establish standing at this stage of the case.
3. Claims Under New Jersey and New York Consumer Protection Laws
Lastly, the defendants in the VitaQuest Suit seek to dismiss plaintiff’s claims under the
consumer protection laws of New Jersey and New York, because Cosio allegedly purchased
E-BOOST products only in his home state of California.
It is appropriate for the Court to address Cosio’s standing deficiency at this stage of the
case, as opposed to at class certification. See, e.g., Temple v. Circuit City Stores, Inc.,
Nos. 06-CV-5303 (JG), 06-CV-5304 (JG), 2007 WL 2790154, at *8 (E.D.N.Y. Sept. 25, 2007)
(rejecting plaintiffs’ argument that their “standing to advance non-Tennessee state law claims on
behalf of” the class was “more properly addressed during the class certification proceedings”
because “[t]he Supreme Court has made clear that because Article III standing goes to a federal
court’s jurisdiction, the court should consider standing as a threshold issue”) (citing City of Los
Angeles v. Lyons, 461 U.S. 95, 101 (1983) and Warth, 422 U.S. at 498).
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Furthermore, defendants’ position on this issue enjoys overwhelming support in the
courts of this Circuit and others. See, e.g., Mendy v. JP Morgan Chase & Co., No. 12-CV-8252
(PGG), 2014 WL 1224549, at *8 (S.D.N.Y. Mar. 24, 2014) (holding that New Jersey’s consumer
protection law, and not New York’s, would apply because plaintiff resided in New Jersey)
(collecting cases); Temple, 2007 WL 2790154, at *8 (dismissing, for lack of standing, claims
arising under the laws of states other than Tennessee where “plaintiffs allege[d] no injury within
any state other than Tennessee”); Dzielak v. Whirlpool Corp., 26 F. Supp. 3d 304, 332 (D. NJ
2014) (“A Plaintiff may bring state law [consumer protection] claims only under the law of the
state where he or she lived and the alleged injury occurred.”). Plaintiff’s citations to the contrary
are inapposite. See, e.g., Ebin, 297 F.R.D. at 564, 570 (finding that common issues predominated
in New Jersey and New York consumer protection claims but noting that the case involved
named plaintiffs who were from and made their purchases in each of those states).
Finally, plaintiff’s attempt to invoke the laws of New Jersey and New York, based on the
fact that defendants make sales in those states or are headquartered there, lacks merit. See, e.g.,
Thomas v. JPMorgan Chase & Co., 811 F. Supp. 2d 781, 800 (S.D.N.Y. 2011) (noting that the
relevant New York statute “‘was not intended to police the out-of-state transactions of New York
companies’” and “[t]o expand this protection to consumers in other states would subject New
York businesses to almost unlimited liability”) (quoting Goshen v. Mut. Life Ins. Co. of New
York, 98 N.Y.2d 314, 325, 774 N.E.2d 1190, 1196 (2002)); Watts v. Jackson Hewitt Tax Serv.
Inc., 579 F. Supp. 2d 334, 345 (E.D.N.Y. 2008) (rejecting argument that New Jersey consumer
protection law applied to the overcharging of plaintiffs by a tax preparation franchise in New
York, despite the fact that the defendant companies had headquarters and franchises in New
15
Jersey, because this was “not enough to outweigh New York’s much more direct interest in
applying its consumer protection law in this case”); Dzielak, 26 F. Supp. 3d at 333.
Therefore, plaintiff’s claims under the consumer protection laws of New Jersey and New
York, in both suits, must be dismissed for lack of standing, because Cosio allegedly purchased
E-BOOST products only in his home state of California.7
CONCLUSION
For the reasons discussed above, the Court denies defendants’ consolidated summary
judgment motion to dismiss the plaintiff’s claims for lack of Article III standing for failure to
establish a cognizable “injury in fact.” A reasonable juror could find that Cosio purchased
E-BOOST powder packets in 2011, and the E-BOOST powder packets are sufficiently similar to
the E-BOOST dissolvable tablets and liquid shots to establish Cosio’s standing at this stage of
the case for those admittedly unpurchased products. However, the Court dismisses plaintiff’s
claims under the consumer protection laws of New Jersey and New York in both cases, because
Cosio allegedly purchased E-BOOST products only in his home state of California.
SO ORDERED.
Dated: Brooklyn, New York
August 24, 2015
/s/ Judge Raymond J. Dearie
__________________________
RAYMOND J. DEARIE
United States District Judge
7
Vitalize did not make this argument in its original motion. However, because the
summary judgment motions in the two cases were joined and plaintiff had the opportunity to
brief this issue, the Court grants dismissal of the relevant claims in both cases.
16
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