Tomasino v. Estee Lauder Cos.

• Decision Date: 26 August 2014
• Docket Number: No. 13–CV–4692 ERKJMA.,13–CV–4692 ERKJMA.
• Citation: Tomasino v. Estee Lauder Cos., 44 F.Supp.3d 251 (E.D. N.Y. 2014)
• Parties: Donna TOMASINO, Plaintiff, v. The ESTEE LAUDER COMPANIES INC., Estee Lauder, LLC, Estee Lauder Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

44 F.Supp.3d 251

Donna TOMASINO, Plaintiff

v.The ESTEE LAUDER COMPANIES INC., Estee Lauder, LLC, Estee Lauder Inc., Defendants.

No. 13–CV–4692 ERKJMA.

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

Signed Aug. 26, 2014.

Caroline Firth Bartlett, James E. Cecchi, Zachary S. Bower, Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C., Roseland, NJ, for Plaintiff.

Kenneth A. Plevan, Jordan Adam Feirman, Skadden Arps Slate Meagher & Flom LLP, New York, NY, for Defendants.

MEMORANDUM & ORDER

KORMAN, Senior District Judge:

On October 15, 2013, plaintiff Donna Tomasino (“Tomasino”), on behalf of herself and all others similarly situated, filed an Amended Complaint seeking damages and injunctive relief against The Estee Lauder Companies Inc., Estee Laboratories, LLC, and Estee Lauder Inc. (collectively “Estee Lauder”) alleging five causes of action: (1) violation of Section 349 of the New York General Business Law ; (2) violation of Section 350 of the New York General Business Law ; (3) breach of an express warranty; (4) breach of the implied warranty of merchantability; and (5) unjust enrichment. The allegations in the Amended Complaint arise from Estee Lauder's marketing of five cosmetic products from its Advanced Night Repair (“ANR”) Collection. Estee Lauder has moved pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss the claims for injunctive relief, and Fed.R.Civ.P. 12(b)(6) to dismiss the Amended Complaint in its entirety.

FACTS

Tomasino is a citizen and resident of New York. Am Compl. ¶ 19. She commenced this action on behalf of a “nationwide consumer class” and a “New York Subclass.” Am. Compl. ¶¶ 84–85. Tomasino asserts that the precise number and identities of the class members are currently unknown and “will be determined though discovery,” but that “each of these classes number in the tens of thousands,” Am. Compl. ¶ 86, and that the “aggregate amount in controversy exceeds $5 million,” Am. Compl. ¶ 26. The Estee Lauder Companies Inc. and Estee Lauder Inc. are corporations organized under Delaware law, and each has its principal place of business in New York. Am. Compl. ¶¶ 23, 25. Estee Laboratories, LLC is a Delaware limited liability company. Am. Compl. ¶ 24.

Tomasino alleges that “in or about 2010” she purchased two cosmetics products from Estee Lauder's ANR Collection—ANR Synchronized Recovery Complex and ANR Eye Synchronized Complex¹ —at a Macy's department store in Staten Island. Am. Compl. ¶¶ 19, 21. She claims that she purchased the ANR products in reliance on “efficacy claims” that she saw in magazine advertisements and at the point of sale. Am. Compl. ¶¶ 20–21. Specifically, Tomasino alleges that the defendants misrepresented that the ANR products have “certain age-negating effects on the human skin.” Am. Compl. ¶ 2. The plaintiff included multiple screen shots of Estee Lauder advertisements in the Amended Complaint. As relevant to plaintiff's allegations, the included images make the following representations about the ANR products:

• “Uniquely formulated to work in a way no other treatment can, this patented complex is advanced with our exclusive Chronolux™ Technology. So innovative, this remarkable recovery complex actually supports the natural synchronization of skin's repair and protection processes. Its mission? Repair the appearance of past damage and address the visible damaging effects of environmental assaults such as UV light, smoke and pollution. 20+ Patents Worldwide. Am. Compl. ¶ 29

• “In an unprecedented year-long study, women continued to experience a dramatic reduction in the major signs of visible aging, day after day, month after month. Skin looks smoother, younger, more radiant and healthy. Furthermore, women who didn't use Advanced Night Repair experienced an increase in visible signs of aging.” Graphs that appear next to this text indicate that the study resulted in a 68% improvement in “Lines & Wrinkles,” 63% or 76% improvement in “Skin Clarity,” and 75% improvement in “Skin Tone.” Am. Compl. ¶ ¶ 3 9, 45, 65.

• “Inspired by 25 years of groundbreaking DNA research, Estée Lauder scientists bring you this high-performance serum to help continuously repair the appearance of past damage. With age-defying power of our exclusive Chronolux™ Technology, you'll see a dramatic reduction in the visible signs of aging. ” Am. Compl. ¶ 63(B).

• “Experience a dramatic reduction in the major signs of visible aging—lines, wrinkles, uneven skintone and loss of clarity. Skin looks smoother, younger, more radiant and healthy-looking.” Am. Compl. ¶ 65.

• “Synchronized + Enhanced Environmental Repair: Inspired by the science of clock genes, exclusive Chronolux™ and AGT Repair Technologies support the natural synchronization of skin's repair processes so that it repairs itself at exactly the right time.” Am. Compl. ¶ 65.

Based on these representations, and presumably others that do not appear in the Amended Complaint, the plaintiff complains that Estee Lauder misrepresented that the ANR products can, among other things, “repair DNA,” “support the natural synchronization of skin's repair and protection processes,” “repair the appearance of past damage,” “address the visible damaging effects of environmental assaults ... before they become permanent,” “prevent future damage,” and “reduce lines and wrinkles by 68%.” Am. Compl. ¶¶ 93, 100, 106, 114. Tomasino contends that “[i]n reality, the ANR Products do not and cannot live up to the efficacy claims made by Estee Lauder because none of their ingredients can provide the promised results.” Am. Compl. ¶ 8.

In support of her allegation that Estee Lauder “convey[s] the misleading message to consumers that using the ANR products will repair damage to their skin cells and/or repair their DNA[,]” Am. Compl. ¶ 31, Tomasino points to various aspects of the Estee Lauder's marketing that she contends were used to lend credibility to the claimed efficacy of the ANR products. For example, she references an allegedly misleading clinical study, resulting in misleading statistics, that suggests that the ANR Synchronized Recovery Complex yielded a 68% improvement in “Lines & Wrinkles” in the test population after 12 months. Am. Compl. ¶¶ 39–42. She also claims that it was misleading for Estee Lauder to cite “in-vitro” tests—“ingredient test[s] in a test tube or petri dish”² —and to indicate that it had patents for its ANR products, but not to include the patent numbers. Am. Compl. ¶¶ 47–50, 55, 63(B). The plaintiff does not, however, argue that the claims about these studies, tests, and patents are false or inaccurate. Rather, she simply asserts that references to them furthers the misleading message that the ANR products can reduce the visible signs of aging including lines and wrinkles and help prevent further damage because “the ANR Products do not and cannot live up to the efficacy claims made by Estee Lauder because none of their ingredients can provide the promised results.” Am. Compl. ¶ 8.

DISCUSSION

I. Standing

The defendants have moved pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss the plaintiff's claims for injunctive relief because they claim she does not have standing to seek such relief. The “irreducible constitutional minimum” of standing requires a plaintiff to show that: (1) it has suffered a concrete and particularized injury in fact which is actual or imminent, not “conjectural or hypothetical,” (2) the injury is fairly traceable to the defendant's allegedly unlawful conduct, and (3) the injury will likely be redressed by the requested relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). While the plaintiff alleges that she purchased ANR products as a result of the defendants' allegedly false or misleading advertising, “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” O'Shea v. Littleton, 414 U.S. 488, 495–96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Moreover, “[a]n allegation of future injury may suffice” but only “if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, ––– U.S. ––––, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (citing Clapper v. Amnesty Int'l USA, ––– U.S. ––––, 133 S.Ct. 1138, 1147, 1150 n. 5, 185 L.Ed.2d 264 (2013) (internal quotation marks omitted)).

While Tomasino suggests that she remains a potential Estee Lauder customer and is likely to be misled again, Pl.'s Opp'n to Mot. to Dismiss at 29, ECF No. 14, she has not alleged a sufficient future injury to establish standing to assert her claims for injunctive relief because she has demonstrated that she is, in fact, unlikely to purchase ANR products again. See Vaccariello v. XM Satellite Radio, Inc., 295 F.R.D. 62, 68 (S.D.N.Y.2013). Indeed, she has made clear that she does not believe the ANR products have the effects advertised by Estee Lauder, and that she would not have purchased them in the first place absent the allegedly misleading advertisements. See Am. Compl. ¶¶ 19 (“Plaintiff would not have purchased [the ANR Products] ... had Estee Lauder not made such false and deceptive claims and instead disclosed the true nature of its products”), 83 (plaintiff received “totally worthless products”); Pl.'s Opp'n to Mot. to Dismiss at 29 (“Plaintiff now appreciates the false and misleading nature of [Estee Lauder's] efficacy claims”).

Moreover, the fact that unknowing class members might purchase ANR products based on the defendants' allegedly unlawful advertising does not establish standing. Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck–Medco Managed Care, L.L.C., 433 F.3d 181, 199 (2d Cir.2005) (“the named class plaintiffs ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.’ ”); see...