Clinger v. Edgewell Pers. Care Brands

Docket Number3:21-cv-1040 (JAM)
Decision Date13 March 2023
CourtU.S. District Court — District of Connecticut


Jeffrey Alker Meyer, United States District Judge.

The plaintiffs in this putative class action lawsuit allege that they bought certain “Banana Boat” sunscreen products without knowing that the products were contaminated with benzene. The defendants have moved to dismiss the complaint. I will grant the motion in part and deny it in part.


This consolidated lawsuit includes seven named plaintiffs-Sebe Algofi, Monica Barba, Jessica Barton, Luis Chabla, Bryan Clinger, Deborah Jean, and Lisa Zayas. The plaintiffs come from four different States: Florida (Barba and Clinger), New York (Algofi, Barton, and Chabla), Oregon (Jean), and Pennsylvania (Zayas).[1]

The defendants are three companies headquartered in Shelton Connecticut-Edgewell Personal Care Brands, LLC, Edgewell Personal Care, LLC, and Sun Pharmaceuticals, LLC. These companies manufacture, market, advertise, and distribute nationwide the well-known Banana Boat sunscreen products.[2] There are many different kinds of sunscreen products sold under the Banana Boat name that vary for example, with respect to whether they are in the form of lotions, sprays, or gels and that vary with respect to their strength as measured by a Sun Protection Factor (SPF).[3]

The plaintiffs claim that they bought certain Banana Boat sunscreen products but without knowing that these products contained benzene-a chemical that causes cancer and that they say is unsafe at any level if present in sunscreen.[4] The claims of the plaintiffs critically depend on a third-party study that was issued in May 2021 by Valisure LLC, a company that the plaintiffs describe as “an analytical pharmacy, patient advocacy, and consumer protection organization.”[5]The Valisure study surveyed a wide range of sunscreen and after-sun products and found the presence of benzene in 43 out of 234 sunscreens and in 8 out of 48 after-sun products.[6]

Among the sunscreen products which Valisure tested and found benzene were several types of Banana Boat sunscreens. Three of Banana Boat's sunscreens had between .11 and .43 parts per million (ppm) of benzene.[7] Four more Banana Boat sunscreens had detectable amounts of benzene but less than 0.1 ppm.[8] And as indicated in Attachment A to Valisure's petition, benzene was not detected in six other types of Banana Boat sunscreens.[9] According to the complaint, Valisure did not test “the entire product line” of Banana Boat sunscreens.[10]

In addition, the complaint cites results from the [p]laintiffs' independent testing” but without describing more about the testing process.[11] This testing detected between 1.99 and 2.20 ppm of benzene in two additional Banana Boat sunscreens.[12]

Banana Boat sunscreens do not list benzene as an ingredient.[13] Nor do they warn of the possibility of benzene contamination.[14] Following the release of Valisure's report some sunscreen makers issued voluntary recalls.[15] But the defendants did not.[16]

The complaint alleges that the named plaintiffs bought Banana Boat sunscreen online or at retail stores in their various States of citizenship in 2019, 2020, and 2021 or otherwise during the class period.[17] None of the plaintiffs suspected the sunscreen contained or might contain benzene.[18] They would not have bought the sunscreens if they had known they contained or might contain benzene.[19] The complaint alleges numerous causes of action including for breach of warranty (Count One), fraudulent concealment or nondisclosure (Count Two), and unjust enrichment (Count Three). It also alleges claims for unfair or deceptive business practices, false advertising, and unlawful omissions under the laws of New York (Counts Four and Five), Pennsylvania (Count Six), Oregon (Counts Seven through Ten), and Florida (Counts Eleven through Thirteen).[20]

The plaintiffs seek monetary damages, an injunctive order requiring the defendants to comply with consumer protection laws, and an injunctive order requiring the defendants to establish a medical monitoring protocol to monitor individual class members for any ailments associated with benzene exposure.[21] The defendants have now moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of jurisdiction and pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim.


I will first address the defendants' arguments on standing. Then I will turn to their arguments for dismissal based on preemption, primary jurisdiction, and failure to allege fraud with particularity as required under Fed.R.Civ.P. 9(b). Finally, I will address the defendants' arguments that particular counts of the complaint should be dismissed under Fed.R.Civ.P. 12(b)(6) because they fail to state a plausible claim for relief.


The defendants first contend that the plaintiffs lack standing because they cannot establish that they suffered an injury-in-fact. Article III of the Constitution limits the jurisdiction of the federal courts to Cases and “Controversies.” U.S. Const. art. III, § 2 cl. 1. The Supreme Court has ruled that Article III creates a constitutional “standing” requirement-that a federal court may adjudicate a plaintiff's case only if a plaintiff establishes that they personally suffered a concrete and particularized injury that is actual or imminent and that was likely caused by the defendant's alleged wrongdoing and that would likely be redressed by a grant of judicial relief. See TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2203 (2021); Silva v. Farrish, 47 F.4th 78, 86 (2d Cir. 2022).

At the pleadings stage, a court must accept all factual allegations in support of a plaintiff's standing as true and must draw all reasonable inferences in favor of the plaintiff. See Calcano v. Swarovski N. Am. Ltd., 36 F.4th 68, 72 n.1 (2d Cir. 2022); Sonterra Cap. Master Fund Ltd. v. UBS AG, 954 F.3d 529, 533 (2d Cir. 2020). Nevertheless, a plaintiff “bears the burden of establishing standing ‘in the same way as any other matter on which [it] bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.' Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

Thus, at the motion to dismiss stage, the complaint must allege enough facts to make it plausible to conclude that the plaintiff has standing. See Maddox v. Bank of New York Mellon Tr. Co., N.A., 19 F.4th 58, 65-66 (2d Cir. 2021). [A]lthough the plausibility requirement is most commonly applied in the context of evaluating whether a complaint substantively states a claim for relief, there is little reason to suppose that it should not equally govern the evaluation of factual allegations that support federal subject matter jurisdiction.” Lapaglia v. Transamerica Casualty Ins. Co., 155 F.Supp.3d 153, 155 (D. Conn. 2016).

What does it mean for factual allegations to be plausible? As the Supreme Court has explained, [t]he plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Yet [w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Ibid.

The determination of whether a complaint satisfies the plausibility standard is a “contextspecific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. All in all, a court must accept a complaint's factual allegations as true, draw all reasonable inferences in favor of the plaintiffs, and may not dismiss a complaint for lack of standing so long as it alleges enough facts to plausibly show that the plaintiffs have standing.

The defendants argue that the plaintiffs have not alleged enough facts to plausibly show that they were injured-specifically, to show that the Banana Boat products that any of the plaintiffs purchased were contaminated with benzene. After all, the defendants argue, the complaint does not allege that the plaintiffs actually tested for the presence of benzene any of the sunscreen products that they personally bought. Nor does the complaint allege that the sunscreens bought by the plaintiffs came from the same product lot as those found to be contaminated by the testing of Valisure or by the “independent testing” referenced in the complaint.

But the fact that the plaintiffs did not actually test the products that they purchased does not mean that they lack standing. Instead, as the Second Circuit has ruled in a somewhat similar context, a product defect may be plausibly inferred from the fact that a third-party investigation has revealed defects in the same line of such products. In John v Whole Foods Market Group, Inc., 858 F.3d 732 (2d Cir. 2017), the plaintiff regularly bought certain pre-packaged food products (cheese and cupcakes) from Whole Foods supermarkets, and the price he paid for these products was determined by the weight of the product that Whole Foods identified on the product label. The plaintiff sued Whole Foods alleging that Whole Foods had overstated the weight of these products. Yet he did not allege that he had actually weighed any of the products he bought; instead, he alleged that a recent third-party investigation had concluded that Whole Foods routinely-89% of the time-overstated the weight of...

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