The debate between two Third Circuit judges and a dissenting colleague in In re Johnson & Johnson Talcum Powder Products Marketing, Sales Practices and Liability Litigation, a case decided last Thursday, is the best distillation I have seen of a debate raging in federal and state courts throughout the country: When, if ever, can a plaintiff who purchased and used a product without incident, and did not pay a price premium for it, sue for “consumer fraud”?
The plaintiff, Mona Estrada, purchased baby powder made from talc. She alleged, and of course the defendant disputed, that baby powder made from talc can cause ovarian cancer. But Estrada herself neither contracted cancer nor alleged that her use of the product put her at higher risk of contracting cancer. Instead, she sued for “consumer fraud” under California law, contending that the defendant implicitly promised a safe product but did not live up to that promise. (The case was transferred to the District of New Jersey as part of an MDL.)
Estrada alleged that she continues to buy baby powder, although she now chooses powder made from corn starch rather than talc. She conceded that when she bought the talc product, she did not pay a “price premium” for it. She also conceded that that the defendant did not advertise its product as better than competing products. Of equal importance to the majority, she conceded that she used the entire product she purchased and that it delivered all of the benefits the defendant explicitly promised. On both grounds, this distinguished her claims from those in the California Supreme Court’s Kwikset Lock case, where plaintiffs alleged they paid a premium for locks falsely advertised as “Made in the USA.”
The Third Circuit panel thus characterized, and dismissed, Estrada’s allegations on the following terms: she “purchased and received Baby Powder that successfully did what the parties had bargained for and expected it to do; eliminate friction on the skin, absorb excess moisture, and maintain freshness.” Absent a price premium or a promise of superiority, she simply had nothing about which to complain, and her “wish to be reimbursed for a functional product that she has already consumed without incident does not itself constitute an economic injury within the meaning of Article III.”
Defendants facing “no injury” consumer fraud class actions can stop here, celebrate the Third Circuit’s conclusion, and figure out the best way to bring it to their own courts’ attention. Particularly where the absence of a pleaded economic injury can be characterized as a failure of statutory standing, which would preclude a claim from being litigation in federal court or state court, rather than just a failure of Article III standing, which might allow the plaintiff dismissed from federal court to replead claims in state court, the Third Circuit’s precedential decision may become a powerful defense weapon.
Where the debate will rage, however, is in cases where plaintiffs allege consumer fraud on the basis that a product “may” be “unsafe,” even if that alleged risk did not manifest in the plaintiff’s own case.
From the majority’s perspective, Estrada’s “own allegations require us to conclude that the powder she received was, in fact, safe as to her.” She “chose not to allege any risk of developing ovarian cancer in the future,” and “[g]iven the absence of such an allegation, Estrada cannot now claim that she was ever at risk of developing ovarian cancer.” The court therefore construed her claim as alleging “benefit of the bargain,” but the claim fell short because she failed to allege “that the economic benefit she received in purchasing the powder was worth less than the economic benefit for which she bargained.”
Judge Julio Fuentes, in dissent, said he would have held that “the safety of the product—as a general proposition, not specifically as to Estrada herself—was an essential component of the benefit of Estrada’s bargain.” Judge Fuentes would have allowed Estrada to proceed to discovery, and if she could have established that the powder was indeed unsafe, “[t]he price increase…caused by the company’s alleged misrepresentation as to safety” may well have been “the total sum she paid for the product.” In other words, she could have claimed a full refund, even though she purchased and used the product, it delivered its promised benefits, and it caused no harm.
Last week’s decision may not be the end of the road in this case. The majority and dissent argued over whether the decision conflicts with two other Third Circuit precedents that found standing to exist, one involving event tickets and another involving prescription eye drops. En banc review, therefore, is at least possible. If the panel’s decision stands, however, its application in the lower courts, and its persuasiveness in federal and state courts elsewhere, will be fascinating to observe.