Goldemberg v. Johnson & Johnson Consumer Cos., 13–cv–3073 NSR.

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtNELSON S. ROMÁN, District Judge.
Citation8 F.Supp.3d 467
Decision Date27 March 2014
Docket NumberNo. 13–cv–3073 NSR.,13–cv–3073 NSR.
PartiesMichael GOLDEMBERG on behalf of himself and all others similarly situated, Plaintiff, v. JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Defendant.

8 F.Supp.3d 467

Michael GOLDEMBERG on behalf of himself and all others similarly situated, Plaintiff

No. 13–cv–3073 NSR.

United States District Court, S.D. New York.

Signed March 27, 2014.

8 F.Supp.3d 471

Todd Seth Garber, Douglas Gregory Blankinship, Jeremiah Lee Frei–Pearson, Meiselman, Packman, Nealon, Scialabba & Baker P.C., White Plains, NY, Kim Eleazer Richman, Michael Robert Reese, Reese Richman LLP, New York, NY, for Plaintiff.

Eileen Miriam Patt, Harold Paul Weinberger, Kramer, Levin, Naftalis & Frankel, LLP, New York, NY, for Defendant.


NELSON S. ROMÁN, District Judge.

Plaintiff Michael Goldemberg (“Plaintiff”) commenced the instant action against Johnson & Johnson Consumer Companies, Inc. (“Defendant”) seeking monetary damages and injunctive relief for alleged violations of New York state statutory and common law. In his complaint, Plaintiff asserts three causes of action against Defendant: deceptive acts and practices in violation of General Business Law § 349 (“GBL § 349 ”), common law breach of express warranties, and common law unjust enrichment.

Defendant now moves, pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6), to dismiss Plaintiff's complaint (“Complaint”) for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. Defendant asserts that Plaintiff's claims are preempted by federal law, that the doctrine of primary jurisdiction bars the claims, that its labels and advertisements are not materially misleading as a matter of law, that Plaintiff failed to adequately allege causation and injury, that any alleged express warranty was not false or misleading, that the unjust enrichment claim is duplicative, and that Plaintiff has no standing to brine claims concerning “other similar varieties” of products not specified in the Complaint and which Plaintiff did not purchase. For the following reasons, Defendant's motion to dismiss the complaint is granted in part and denied in part.


According to the Complaint, Defendant is a New Jersey corporation with its principal executive office in Skillman, New Jersey. Plaintiff, a resident of White Plains, New York, alleges that Defendant engages in a widespread marketing campaign that misleads consumers into believing that Defendant's Aveeno personal care products are made exclusively from natural ingredients. Defendant prominently places the phrase “Active Naturals” on the product packaging, the Aveeno website, and advertisements as part of its marketing campaign. However, Defendant allegedly fails to adequately inform consumers that most of the ingredients are synthetic and unnatural because the ingredients list on the back of the packaging is in small, hard to read print and Defendant does not otherwise inform consumers that most ingredients are synthetic. Defendant also omits the synthetic ingredients from its website, which touts the benefits of Aveeno's natural ingredients when describing those ingredients and specific products. Defendant's

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advertising also includes Aveeno's Facebook page, which allegedly states, “[w]e believe nature has the power to make life beautiful—to soothe, heal, and even transform.”

Since Defendant portrays Aveeno products as “Active Naturals” and otherwise represents that they are natural, Defendant allegedly prices them higher than equivalent synthetic products, knowing and intending that consumers will pay a premium over the comparable products. According to the Complaint, a reasonable person would be induced to act upon deceptive representations, such as Defendant's advertising, in making purchasing decisions. Plaintiff allegedly relied on these representations and purchased six Aveeno Active Naturals products—Creamy Moisturizing Oil with Natural Colloidal Oatmeal and Pure Oat Oil, Therapeutic Shave Gel with Natural Colloidal Oatmeal, Positively Smooth Shave Gel with Natural Soy, Positively Nourishing Comforting Whipped Souffle, Nourish+Moisture Shampoo, and Nourish+Moisture Conditioner—because he wanted natural care products. Plaintiff alleges that he would not have purchased the Aveeno products had they been truthfully advertised and labeled, and that he would not have paid a premium for these unnatural products. Plaintiff allegedly did not obtain the full value of the products due to Defendant's misrepresentations and omissions, thus suffering monetary loss.

Plaintiff claims that Defendant provided him with express warranties, including that the products were “Active Naturals,” but that Defendant breached those warranties because the products did not conform to what Defendant promised in its promotion, marketing, advertising, packaging, and labeling, as the products are mostly synthetic. Plaintiff further claims that Defendant's deceptive marketing caused Defendant to be unjustly enriched at Plaintiff's expense when Plaintiff paid the purchase price for the Aveeno products.

Plaintiff also purports to bring the action on behalf of all others similarly situated who purchased in New York any Aveeno Active Naturals products containing synthetic ingredients during the applicable limitations period. Plaintiff alleges that the aggregate claims exceed the sum of $5 million, the number of class members exceeds 100 people, and that the diversity of citizenship requirements of 28 U.S.C. § 1332(d) are satisfied. Plaintiff seeks to enjoin Defendant from advertising the Aveeno products as “Active Naturals” and from using other similar statements, actual and statutory damages under GBL § 349, compensatory and punitive damages, and restitution.


A. Lack of Subject Matter Jurisdiction

On a motion to dismiss for “lack of subject matter jurisdiction,” Fed.R.Civ.P. 12(b)(1), dismissal of a case is proper “when the district court lacks the statutory or constitutional power to adjudicate it,” Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir.2011) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) ). A plaintiff has the burden of proving subject matter jurisdiction by preponderance of the evidence. Liranzo v. United States, 690 F.3d 78, 84 (2d Cir.2012) ; Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (quoting Makarova, 201 F.3d at 113 ). “ ‘[J]urisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.’ ” Morrison, 547 F.3d at 170

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(quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir.2003) ).

B. Failure to State a Claim

On a motion to dismiss for “failure to state a claim upon which relief can be granted,” Fed.R.Civ.P. 12(b)(6), dismissal is proper unless the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.2010). “Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is] ‘not bound to accept as true a legal conclusion couched as a factual allegation.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679, 129 S.Ct. 1937.

When there are well-pleaded factual allegations in the complaint, “a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. A claim is facially plausible when the factual content pleaded allows a court “to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, 129 S.Ct. 1937. Ultimately, determining whether a complaint states a facially plausible claim upon which relief may be granted must be “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679, 129 S.Ct. 1937.


Defendant asserts that the Complaint fails to state a claim because Plaintiff's claims are expressly preempted by the Food, Drug, and Cosmetic Act of 1938 (“FDCA”). When determining whether state law claims are preempted, Courts must “ ‘start with the assumption that the historic police powers of the States [a]re not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ” Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) ); accord Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947) ; see also Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005) (“[W]e assume that a federal statute has...

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  • Goldemberg v. Johnson & Johnson Consumer Cos., 13–cv–3073 (NSR).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 27, 2014
    ...8 F.Supp.3d 467Michael GOLDEMBERG on behalf of himself and all others similarly situated, Plaintiff,v.JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Defendant.No. 13–cv–3073 (NSR).United States District Court, S.D. New York.Signed March 27, Motion granted in part and denied in part. [8 F.Supp.......

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