John v. Whole Foods Mkt. Grp., Inc.

• Decision Date: 02 June 2017
• Docket Number: Docket No. 16-986-cv,August Term, 2016
• Citation: 858 F.3d 732
• Parties: Sean JOHN, individually and on behalf of all others similarly situated, Plaintiff–Appellant, Joseph Bassolino, individually and on behalf of all others similarly situated, Consolidated Plaintiff, v. WHOLE FOODS MARKET GROUP, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

858 F.3d 732

Sean JOHN, individually and on behalf of all others similarly situated, Plaintiff–Appellant,

Joseph Bassolino, individually and on behalf of all others similarly situated, Consolidated Plaintiff,

v.WHOLE FOODS MARKET GROUP, INC., Defendant–Appellee.^*

Docket No. 16-986-cv

August Term, 2016

United States Court of Appeals, Second Circuit.

Argued: October 17, 2016

Decided: June 2, 2017

Douglas G. Blankinship , Finkelstein, Blankinship, Frei–Pearson & Garber, LLP, White Plains, NY, for Plaintiff–Appellant.

David E. Sellinger (Gregory J. Casas, Elliot H. Scherker, Brigid F. Cech Samole, on the brief), Greenberg Traurig, LLP, New York, NY, Austin, TX, Miami, FL, for Defendant–Appellee.

Before: KEARSE, JACOBS, and LOHIER, Circuit Judges.

LOHIER, Circuit Judge:

Sean John filed a putative class action alleging that New York City grocery stores operated by Whole Foods Market Group, Inc. systematically overstated the weights of pre-packaged food products and overcharged customers as a result. The United States District Court for the Southern District of New York (Engelmayer, J. ) granted Whole Foods' motion to dismiss John's complaint for lack of Article III standing because he failed to allege a sufficient injury in fact. Because we conclude that John plausibly alleged an injury in fact, we VACATE and REMAND for further proceedings consistent with this opinion.

BACKGROUND

Because John appeals from a judgment dismissing the complaint on the pleadings, we accept as true the facts alleged in the complaint, "and we may consider documents incorporated into or integral to the complaint." WC Capital Mgmt., LLC v. UBS Sec., LLC , 711 F.3d 322, 325 (2d Cir. 2013).

1. Alleged Facts

In 2014 and 2015 John "routinely shopped" at two Whole Foods stores in Manhattan and made "regular[ ] purchase[s]" of pre-packaged products, including "pre-packaged cheese and cupcakes approximately one or two times per month." "Pre-packaged" food products are those that Whole Foods weighs and prices prior to shelving, assigning a price to each package based on the weight of the food.

Whole Foods routinely inflated the weight listed on the labels of pre-packaged products, and, as a result of the mislabeling, overcharged unwitting customers for pre-packaged food. The complaint does not identify a specific food purchase as to which Whole Foods overcharged John. Instead, it more generally describes pervasive overcharging of pre-packaged food throughout Whole Foods' stores in New York City. But the complaint does attach a June 2015 press release of the New York City Department of Consumer Affairs (the "DCA") entitled "Department of Consumer Affairs Investigation Uncovers Systemic Overcharging for Pre-packaged Foods at City's Whole Foods." As its title suggests, the press release announced the DCA's investigation of overcharging by Whole Foods and its preliminary findings that Whole Foods' New York City stores "routinely overstated the weights of its pre-packaged products—including meats, dairy and baked goods." App'x 26. The press release elaborated on these findings:

DCA tested packages of 80 different types of pre-packaged products and found all of the products had packages with mislabeled weights. Additionally, 89 percent of the packages tested did not meet the federal standard for the maximum amount that an individual package can deviate from the actual weight, which is set by the U.S. Department of Commerce. The overcharges ranged from $0.80 for a package of pecan panko to $14.84 for a package of coconut shrimp.

Id.

The DCA's findings, the press release continued, "point to a systematic problem with how products ... are weighed and labeled" and "suggest [ ] that individual packages are routinely not weighed or are inaccurately weighed, resulting in overcharges for consumers." Id. Finally, according to the press release, the DCA planned to "further evaluate" Whole Foods' "compliance with City and state laws" and estimated that the "potential number of violations that Whole Foods faces for all pre-packaged goods in the NYC stores is in the thousands." App'x 27.

The DCA's investigation leading up to the June 2015 press release took place from fall 2014 to winter 2015, the same period in which John allegedly made monthly purchases of cheese and cupcakes. The investigation focused on the eight Whole Foods stores operating in New York City during that period, which included the two stores that John patronized. Whole Foods has since confirmed that cheese and cupcakes were among the pre-packaged products that the DCA alleged were mislabeled with overstated weights.

2. Procedural History

In filing this class action, John alleged violations of sections 349 and 350 of the New York General Business Law as well as a claim for unjust enrichment.¹ He sought compensatory damages, refunds, punitive damages, injunctive relief, attorneys' fees, and costs. The proposed class includes all persons who purchased at least one of fourteen types of pre-packaged product within the six years prior to the filing of the complaint from a Whole Foods store in New York State.

The District Court granted Whole Foods' motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6), holding that John lacked Article III standing because he failed to plausibly allege that he was personally overcharged by Whole Foods for a specific purchase. In re Whole Foods Mkt. Grp., Inc. Overcharging Litig. , 167 F.Supp.3d 524, 537 (S.D.N.Y. 2016). Again citing John's failure to allege that he personally had been overcharged, the District Court explained that, even if John had standing, it would grant Whole Foods' motion to dismiss the complaint for failure to state a claim upon which relief could be granted, and that amending the complaint would be futile. Id. at 538–39. Despite its conclusion that John lacked standing, the District Court dismissed the complaint with prejudice. Id. at 539.

This appeal followed.

DISCUSSION

As a preliminary matter, we again "note that where a complaint is dismissed for lack of Article III standing, the dismissal must be without prejudice, rather than with prejudice." Carter v. HealthPort Techs., LLC , 822 F.3d 47, 54 (2d Cir. 2016). "Such a dismissal is one for lack of subject matter jurisdiction." Id. And "without jurisdiction, the district court lacks the power to adjudicate the merits of the case" or "dismiss a case with prejudice." Id. at 54–55 (quotation marks omitted). "Thus, if we were to agree with the [D]istrict [C]ourt's conclusion that the Complaint failed to show Article III standing," we would remand with instructions that the judgment be "amended to provide that the dismissal is without prejudice." Id. at 55.

We need not do so, however, because we conclude that John's complaint plausibly alleges that he has Article III standing and therefore vacate the dismissal and remand for further proceedings.

To satisfy the " ‘irreducible constitutional minimum’ of standing," a plaintiff "must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). Each element of standing "must be supported ... with the manner and degree of evidence required at the successive stages of the litigation," and at the pleading stage, "general factual allegations of injury resulting from the defendant's conduct may suffice." Lujan , 504 U.S. at 561, 112 S.Ct. 2130. And, because Whole Foods mounts only a "facial" challenge to John's allegations of standing, John bears no evidentiary burden at the pleading stage. Carter , 822 F.3d at 56. As we explained in Carter :

When the Rule 12(b)(1) motion is facial, i.e. , based solely on the allegations of the complaint or the complaint and exhibits attached to it (collectively the "Pleading"), the plaintiff has no evidentiary burden. The task of the district court is to determine whether the Pleading "allege[s] facts that affirmatively and plausibly suggest that [the plaintiff] has standing to sue." On appeal, we review the district court's decision on such a facial challenge de novo , "accept[ing] as true all material [factual] allegations of the complaint," and "draw[ing] all reasonable inferences in favor of the plaintiff."

Id. at 56–57 (citations omitted).

The District Court dismissed John's suit on the ground that he failed to satisfy the injury-in-fact requirement. We have repeatedly described that requirement as "a low threshold," WC Capital Mgmt. , 711 F.3d at 329 (quoting Ross v. Bank of Am., N.A. , 524 F.3d 217, 222 (2d Cir. 2008) ), which "helps to ensure that the plaintiff has a personal stake in the outcome of the controversy," Susan B. Anthony List v. Driehaus , ––– U.S. ––––, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (quotation marks omitted). Injury in fact consists of "an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical." Spokeo , 136 S.Ct. at 1548 (quotation marks omitted).

John argues that his complaint adequately and plausibly alleges that Whole Foods overcharged him at least once for pre-packaged cheese and cupcakes. Here, no one disputes that overpaying for a product results in a financial loss constituting a particularized and concrete injury in fact. See Carter , 822 F.3d at 55 ("Any monetary loss suffered by the plaintiff satisfies this element; [e]ven a small financial loss suffices." (quotation marks omitted)). Rather, the dispute arises from the following: in addition to the allegation that he made monthly purchases of Whole Foods pre-packaged cheese and cupcakes, the critical basis for John's claim that he was overcharged is the DCA's press release announcement that 89 percent of Whole Foods' pre-packaged products tested by the...