Kommer v. Bayer Consumer Health

• Decision Date: 18 May 2017
• Docket Number: 16 Civ. 1560 (DAB).
• Parties: KOMMER, Plaintiff, v. BAYER CONSUMER HEALTH, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

252 F.Supp.3d 304

KOMMER, Plaintiff,

v.BAYER CONSUMER HEALTH, et al., Defendants.

16 Civ. 1560 (DAB).

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

Signed May 18, 2017

James Robert Denlea, Robert Jeffrey Berg, Jeffrey I. Carton, Denlea & Carton LLP, White Plains, NY, for Plaintiff.

Eugene A. Schoon, Kara Lynn McCall, Sidley Austin LLP, Chicago, IL, James Daniel Arden, Sidley Austin LLP, New York, NY, for Defendants.

MEMORANDUM AND ORDER

DEBORAH A. BATTS, United States District Judge.

Plaintiff James Kommer ("Plaintiff") brings this putative class action against Bayer Consumer Health, Bayer Consumer Care Holdings LLC, Bayer Healthcare LLC, Bayer Corporation, and MSD Consumer Care Inc. (collectively, "Defendants"), alleging violations of New York General Business Law ("GBL") §§ 349 & 350. Defendants move to dismiss the action for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and for lack of standing under Fed. R. Civ. P. 12(b)(1). For the reasons discussed herein, Defendants' Motion to Dismiss is GRANTED.

I. Background

Unless otherwise noted, the following facts are taken from the Amended Complaint and assumed to be true for purposes of this Motion.

Defendants are in charge of manufacturing, marketing, distributing and selling Dr. Scholl's foot care products, including the Dr. Scholl's Custom Fit Orthotics Inserts (the "Inserts") at issue in this case. (Am. Compl. ¶¶ 18–27.) Defendants market and distribute this product throughout the United States, including in the State of New York. (Id. )

The Inserts are sold nationwide at various pharmacies and retailers. (Id.¶ 32.) In many stores, they are marketed and sold alongside a point-of-sale kiosk, the Dr. Scholl's Custom Fit Orthotics Foot Mapping Kiosk (the "Kiosk"), which is placed by Defendants in the retail store. (Id.¶¶ 5, 33.) The Kiosk features a platform for customers to stand on and a computer monitor at top. (Id.¶ 33.) The instructions on the Kiosk (the "Kiosk Instructions") direct customers to remove their shoes, step onto the Kiosk platform, and touch the screen to begin; within about two minutes, the system maps the user's data and recommends the best Insert model for the user's feet. (Id.¶ 34.) Fourteen different models of pre-fabricated, pre-packaged Inserts are stacked on shelves on the side of the Kiosk, and the Kiosk is programmed to always recommend one of the models to the user. (Id.¶¶ 34, 36.)

The Dr. Scholl's website includes the following description of the Kiosk's function:

The Dr. Scholl's Custom Fit Kiosk uses Foot Mapping technology to gather different measurements of your feet and recommend the Custom Fit Orthotic Inserts that are right for you.

How does it work?

It uses 2,000 pressure sensors to create your unique Foot Map

What does it measure?

Your arch type, foot length and pressure points

Why should I try it?

It's easy to use and only takes a few minutes.

(Id.¶ 33.) The Complaint alleges that the arch measurements given by the Kiosk are imprecise, because different Kiosks may display different results for the same individual, depending on the individual's weight and stance while standing on the machine. (Id.¶ 35.) Further, the Complaint alleges, while arch index "may be one of many factors that could be considered in prescribing an effective orthotic device

, relying on this one factor alone is not sufficient to properly ... prescribe a custom fit orthotic." (Id. )

Plaintiff is a resident of Saratoga County, New York, who experiences foot pain. (Id.¶ 13.) In 2011, Plaintiff discussed his symptoms with a chiropractor, who performed a physical examination on Plaintiff and recommended that Plaintiff be fitted for custom orthotics. (Id. ) Plaintiff followed this advice and was fitted for custom orthotics, which cost him approximately $333. (Id. )

In 2014, Plaintiff, in search of a second pair of orthotics, used the Kiosk in a Walmart store in Saratoga Springs, New York. (Id.¶ 14.) The Kiosk recommended that Plaintiff buy one of the Insert models. (Id. ) Plaintiff tried the foot-mapping process a few times, and each time the Kiosk recommended the same model. (Id. ) Plaintiff ended up buying the recommended Inserts for $50—a price higher, the Complaint alleges, than other, similar inserts, which sell for about $10 at retail. (Id.¶¶ 15, 38.)

Plaintiff alleges that he bought the Inserts based on the representations made on the in-store Kiosk, on the Inserts' labels, and in Defendants' television commercials for the Inserts (the content of which is not described in the Complaint). (Id.¶ 17.) According to Plaintiff, Defendants' marketing led him to believe that the "products he purchased were actually custom fit orthotic inserts individually designed for each of his feet," instead of "standardized, mass produced over-the-counter shoe inserts." (Id. ) Plaintiff alleges that, had he "known the truth," he would not have purchased the products. (Id. ) After using the Inserts for several months, Plaintiff's foot pain allegedly increased, whereas with his prescribed orthotics, Plaintiff experienced relief. (Id.¶ 16.)

In the instant action, Plaintiff seeks to represent a class of consumers similarly harmed by Defendants' allegedly deceptive business practices in marketing and selling the Inserts. (Id.¶ 45.) The allegations regarding the deceptive nature of Defendants' marketing appear to be two-fold: (1) that it misleads consumers into believing that the Inserts are "functionally equivalent" to orthotics fitted and prescribed by a medical professional, Id.¶ 30; and (2) that it misleads customers into believing that the Inserts are individualized to a consumer's "unique physical characteristics," and not simply "generic, pre-fabricated, mass-produced, over-the-counter shoe inserts." (Id.¶¶ 37, 64.) The specific acts alleged to be misleading include the use of "Custom Fit Orthotic" in the product name, see id.¶ 36, the Kiosk's use of "pseudo-technology," id.¶ 35, and the use of designations "such as ‘CF440’ " on the Insert models—designations which Plaintiff claims are not found on other Dr. Scholl's products, and which "suggest a level of precision and exactitude that is not present in the product." (Id.¶ 38.) Plaintiff brings claims under GBL §§ 349 and 350, and seeks damages and an injunction. (Id.¶¶ 54–67.)

II. Discussion

1. Legal Standard

For a complaint to survive a motion brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the plaintiff must have pleaded "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility," the Supreme Court explained,

[W]hen the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where 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.’ "

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 556–57, 127 S.Ct. 1955 ). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal quotation marks and citation omitted). "In keeping with these principles," the Supreme Court stated,

[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. These well-pleaded factual allegations must tender more than " ‘a formulaic recitation of the elements of a cause of action’ " or " ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Id. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 557, 127 S.Ct. 1955 ).

In considering a motion under Rule 12(b)(6), the Court must accept as true all factual allegations set forth in the complaint and draw all reasonable inferences in favor of the plaintiff. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) ; Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). However, this principle is "inapplicable to legal conclusions," Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, which, like the complaint's "labels and conclusions," Twombly, 550 U.S. at 555, 127 S.Ct. 1955, are disregarded. Nor should a court "accept as true a legal conclusion couched as a factual allegation." Id. at 555, 127 S.Ct. 1955 (quotation marks and citation omitted). In resolving a 12(b)(6) motion, a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). Courts may also consider documents "integral" to the complaint, such as where the complaint "relies heavily upon its terms and effect." Id. (quotation marks omitted and citation).

On a motion to dismiss for lack of standing pursuant to Rule 12(b)(1), the plaintiff "bears the burden of establishing standing in the same way as any other matter on which it bears the burden of proof." Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011) (internal quotation marks and alteration omitted). Thus, as with a motion under Rule...