Greene v. Gerber Prods. Co.
| Decision Date | 02 August 2017 |
| Docket Number | 17–CV–93 (MKB),16–CV–1153 (MKB) |
| Citation | 262 F.Supp.3d 38 |
| Parties | Jeremy GREENE and Cetaria Wilkerson, on behalf of themselves and all others similarly situated, Plaintiffs, v. GERBER PRODUCTS CO., d/b/a Nestlé Nutrition, Nestlé Infant Nutrition or Nestlé Nutrition North America, Defendant. Wendy Manemeit, on behalf of herself and all others similarly situated, Plaintiff, v. Gerber Products Co., d/b/a Nestlé Nutrition, Nestlé Infant Nutrition or Nestlé Nutrition North America, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Brett H. Cebulash, Kevin S. Landau, Miles Greaves, Taus, Cebulash & Landau, LLP, George Volney Granade, II, Michael Robert Reese, Reese LLP, New York, NY, Eric Lechtzin, Sarah R. Schalman–Bergen, Shanon J. Carson, Berger & Montague, PC, Philadelphia, PA, John A. Yanchunis, Marisa Kendra Glassman, Morgan & Morgan
Complex Litigation Group, Tampa, FL, E. Michelle Drake, Berger & Montague PC, Minneapolis, MN, for Plaintiffs.
Geoffrey White Castello, III, Kelley Drye & Warren LLP, Parsippany, NJ, Jaclyn Marie Metzinger, Kelly Drye & Warren LLP, New York, NY, for Defendant.
Plaintiffs Jeremy Greene and Cetaria Wilkerson (the "Greene Plaintiffs") commenced a putative class action on behalf of themselves and all others similarly situated against Defendant Gerber Products Co., doing business as Nestlé Nutrition, Nestlé Infant Nutrition or Nestlé Nutrition North America on March 8, 2016. (Greene Compl., Docket Entry No. 1.) Several months later, on January 6, 2017, Plaintiff Wendy Manemeit commenced a nearly identical putative class action on behalf of herself and all others similarly situated, and against the same Defendant, Gerber Products Co. (Manemeit Compl., Docket Entry No. 1.)1 The Greene Plaintiffs allege violations of (1) the Ohio Consumer Sales Practices Act, Ohio Rev. Code Ann. §§ 1345.01 et seq. ("OCSPA"), (2) the Ohio Deceptive Trade Practices Act, Ohio Rev. Code Ann. §§ 4165.01 et seq. ("ODTPA"), and (3) the North Carolina Deceptive Trade Practices Act, N.C. Gen. Stat. Ann. §§ 75–1.1 et seq. ("NCDTPA"). (Greene Compl. ¶ 14.) Manemeit alleges violations of sections 349 and 350 of New York's General Business Law ("GBL"). (Manemeit Compl. ¶¶ 93–108.) Plaintiffs2 also bring common-law claims for fraudulent concealment, intentional misrepresentation, negligent misrepresentation and unjust enrichment, based on Defendant's advertising and marketing of its "Good Start" line of infant formula (the "Infant Formula"). (Greene Compl. ¶ 14; Manemeit Compl. ¶ 14.) Plaintiffs allege that Defendant's advertising and marketing misrepresent that Defendant's Infant Formula reduces the risk that infants will develop allergies, and also misrepresent that the Infant Formula is the first and only infant formula that the Food and Drug Administration (the "FDA") endorses to reduce the risk of infants developing allergies. (Greene Compl. ¶¶ 2–3.) Plaintiffs seek actual, statutory and punitive damages, restitution and disgorgement, and injunctive relief.
Defendant moves to dismiss or stay the Greene action, only, pursuant to the primary jurisdiction doctrine. Defendant also moves to dismiss Plaintiffs' claims for injunctive relief pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, strike the nationwide class allegations and dismiss the Greene Complaint and the Manemeit Complaint pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure.3
The Court consolidates the Greene and Manemeit actions for purposes of deciding this motion. For the reasons set forth below, the Court declines to dismiss or stay the Greene Complaint pursuant to the primary jurisdiction doctrine, grants Defendant's motion to dismiss Plaintiffs' claims under the OCSPA and ODTPA, and denies Defendant's motion to dismiss Plaintiffs' claims under the NCDTPA. As to the Manemeit Complaint, the Court denies Defendant's motion to dismiss the claims brought pursuant to sections 349 and 350 of the GBL. As to the Greene and Manemeit Complaints, the Court finds that Plaintiffs lack standing to seek injunctive relief; grants Defendant's motion to dismiss the unjust enrichment claims; denies Defendant's motion to strike the nationwide class allegations; and denies Defendant's motion to dismiss the fraudulent concealment, intentional misrepresentation and negligent misrepresentation claims.
The facts alleged in the Greene Complaint and Manemeit Complaint are assumed to be true for the purpose of this motion.4
Since at least 2011, Defendant has manufactured, distributed and sold the Infant Formula, and has advertised the Infant Formula through television, print media, product labeling and on the Internet. (Greene Compl. ¶ 32.) The Infant Formula contains partially hydrolyzed whey protein, which is the ingredient that is purportedly responsible for the Infant Formula's ability to reduce the risk of developing allergies. (Id. ¶¶ 5, 8–9.)
In June of 2005, Defendant petitioned the FDA for approval of a qualified health claim5 to use in its marketing of the Infant Formula. (Id. ¶ 40.) Defendant sought approval to state that "emerging clinical research in healthy infants with family history of allergy shows that feeding a 100% Whey–Protein Partially Hydrolyzed formula may reduce the risk of common food allergy symptoms, particularly allergic skin rash." (Id. ) The FDA denied Defendant's petition on May 11, 2006, concluding that there was "no credible evidence to support the qualified health claim relating consumption of 100 percent partially hydrolyzed whey protein in infant formula to a reduced risk of food allergy." (Id. ¶ 41.)
In May of 2009, Defendant again petitioned the FDA to approve a qualified health claim, stating:
emerging clinical research shows that, in healthy infants with family history of allergy, feeding a 100% Whey–Protein Partially Hydrolyzed infant formula instead of a formula containing intact cow's milk proteins may reduce the risk of developing the most common allergic disease
of infancy—atopic dermatitis —throughout the 1st year of life and up to 3 years of age.
(Id. ¶ 42.) The FDA determined that this claim mischaracterized the scientific evidence and was therefore misleading. (Id. ¶ 43.) The FDA instead proposed four alternative qualified health claims, over which it would consider exercising its enforcement discretion not to challenge the qualified health claim.6 (Id. ¶ 45.)
Plaintiffs allege that, "since at least 2011," Defendant has marketed and advertised the Infant Formula using false and misleading representations. (Id. ¶ 55.) Plaintiffs allege six examples of the allegedly false and misleading representations: a statement on the seal of the Infant Formula that it is the "1st& only routine formula to reduce the risk of developing allergies," (id. ¶ 56 (capitalization omitted); Ex. C, annexed to Compl.); a statement on the label of the Infant Formula that it is "the first and only formula brand made from 100% whey protein hydrolyzed, and that meets the criteria for a FDA Qualified Health Claim for atopic dermatitis
," (Compl. ¶¶ 57, 59; Ex. D, annexed to Compl.); a television commercial stating in relevant part: (Compl. ¶ 60 (alterations in original); Ex. E, annexed to Compl.); a print advertisement stating:
(Compl. ¶ 61; Ex. F, annexed to Compl.); and two additional print advertisements stating that it is the "the first and only infant formula that meets the criteria for a FDA Qualified Health Claim." (Compl. ¶¶ 62–63; Ex. G, annexed to Compl.; Ex. H, annexed to Compl.)
According to Plaintiffs, these statements can be categorized as making two deceptive representations: (1) that the Infant Formula reduces the risk that infants will develop allergies, and (2) that the Infant Formula meets the criteria for an FDA qualified health claim for atopic dermatitis
. As to the representation that the Infant Formula "reduce[s] the risk of [infants] developing allergies," Plaintiffs allege that it is false because the FDA rejected this claim in May 2006, and the scientific evidence demonstrates that this claim is false. (Compl. ¶¶ 56, 60.) In support of this argument, Plaintiffs allege that several scientific studies have concluded that partially hydrolyzed whey protein does not lower the risk that infants will develop allergies. (Id. ¶¶ 46–52.) Plaintiffs cite to a June of 2011 study by Adrian Lowe, Ph.D., University of Melbourne and Melbourne Royal Children's Hospital ("the Lowe Study"), which concluded that "[t]here was no evidence that introducing pHWF [ (partially hydrolyzed whey formula) ] at the cessation of breast-feeding reduced the risk of allergic manifestations, including eczema, asthma, and allergic rhinitis, in [a] study of high-risk infants." (Id. ¶ 47 (alterations in original) (quoting Adrian J. Lowe, Effect of a Partially Hydrolyzed Whey Infant Formula at Weaning on Risk of Allergic Disease in High–Risk Children: A Randomized Controlled Trial , 128 J. Allergy & Clinical Immunology 2, 360–65 (2011)).)
As to the representation that the Infant Formula meets the criteria for an FDA qualified health claim for atopic dermatitis
, Plaintiffs allege that this representation is deceptive because it ...
To continue reading
Request your trial
-
In re Lipitor Antitrust Litig.
...concurrence controls, the Court is persuaded by the majority of district and circuit courts that have done so.9 Greene v. Gerber Prods. Co. , 262 F.Supp.3d 38, 60 (E.D.N.Y. 2017) (collecting cases). In doing so, courts presented with the same issue presently before the Court have framed the......
-
In re Effexor Antitrust Litig.
...concurrence controls, the Court is persuaded by the majority of district and circuit courts that have done so.7 Greene v. Gerber Prods. Co. , 262 F.Supp.3d 38, 60 (E.D.N.Y. 2017) (collecting cases). In doing so, courts presented with the same issue presently before the Court have framed the......
-
Oden v. Bos. Scientific Corp.
...are not subject to the pleading-with-particularity requirements of Rule 9(b)." Daniel , 287 F.Supp.3d at 186 ; Greene v. Gerber Prod. Co. , 262 F.Supp.3d 38, 67 (E.D.N.Y. 2017). Nevertheless, "a claim for deceptive business practices under GBL § 349 or for false advertising under GBL § 350 ......
-
Daniel v. Mondelez Int'l, Inc.
...the constitutional requirements for third-party standing, including as discussed in this Court's decision in Greene v. Gerber Products Co. , 262 F.Supp.3d 38, 55–56 (E.D.N.Y. 2017). As in Greene , Plaintiff seeks to assert standing on behalf of individuals who are not yet aware of the alleg......