Xavier v. Evenflo Co. (In re Evenflo Co., Inc., Mktg., Sales Practices & Prods. Liab. Litig.)

• Decision Date: 23 November 2022
• Docket Number: 22-1133
• Citation: 54 F.4th 28
• Parties: IN RE: EVENFLO COMPANY, INC., MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, Mike Xavier ; Lindsey Brown; Marcella Reynolds; Mona-Alicia Sanchez; Keith Epperson; Casey Hash; Jessica Greenschner; Lauren Mahler; Edith Brodeur; David A. Schnitzer; Ashley Miller; Danielle Sarratori; Hailey Lechner; Desinae Williams; Elise Howland; Theresa Holliday; Joseph Wilder ; Amy Sapeika; Najah Rose; Sudhakar Ramasamy; Tarnisha Alston; Emily Naughton; Talise Alexie; Heather Hampton; Lindsey Reed ; Karen Sanchez ; Becky Brown; Debora De Souza Correa Talutto; Karyn Aly; Janette Smarr; Kari Forhan; Joshua Kukowski; Anna Gathings; Kristin Atwell ; Penny Biegeleisen; Carla Matthews ; Jilli Hiriams; Natalie Davis; Cathy Malone; Jeffrey Lindsey; Linda Mitchell; Rachel Huber; Cassandra Honaker, Plaintiffs, Appellants, Janelle Woodson; Dana Berkley; Jessica Bloswick; Colleen Coderre; Greta Anderson; Kristen Brinkerhoff; Linda Feinfeld; Andrew Gladstone ; Georgette Gladstone; Elizabeth Granillo; Janet Juanich; Teresa Muga; Ashley Perry; Angelica Ruby, Plaintiffs, v. Evenflo Company, Inc., Defendant, Appellee, Goodbaby International Holdings Limited, Defendant.
• Court: U.S. Court of Appeals — First Circuit

54 F.4th 28

IN RE: EVENFLO COMPANY, INC., MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION,

Mike Xavier ; Lindsey Brown; Marcella Reynolds; Mona-Alicia Sanchez; Keith Epperson; Casey Hash; Jessica Greenschner; Lauren Mahler; Edith Brodeur; David A. Schnitzer; Ashley Miller; Danielle Sarratori; Hailey Lechner; Desinae Williams; Elise Howland; Theresa Holliday; Joseph Wilder ; Amy Sapeika; Najah Rose; Sudhakar Ramasamy; Tarnisha Alston; Emily Naughton; Talise Alexie; Heather Hampton; Lindsey Reed ; Karen Sanchez ; Becky Brown; Debora De Souza Correa Talutto; Karyn Aly; Janette Smarr; Kari Forhan; Joshua Kukowski; Anna Gathings; Kristin Atwell ; Penny Biegeleisen; Carla Matthews ; Jilli Hiriams; Natalie Davis; Cathy Malone; Jeffrey Lindsey; Linda Mitchell; Rachel Huber; Cassandra Honaker, Plaintiffs, Appellants,

Janelle Woodson; Dana Berkley; Jessica Bloswick; Colleen Coderre; Greta Anderson; Kristen Brinkerhoff; Linda Feinfeld; Andrew Gladstone ; Georgette Gladstone; Elizabeth Granillo; Janet Juanich; Teresa Muga; Ashley Perry; Angelica Ruby, Plaintiffs,

v.Evenflo Company, Inc., Defendant, Appellee,Goodbaby International Holdings Limited, Defendant.

No. 22-1133

United States Court of Appeals, First Circuit.

November 23, 2022

Jonathan D. Selbin, with whom Lieff Cabraser Heimann & Bernstein LLP, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Martha A. Geer, and Milberg Coleman Bryson Phillips Grossman, PLLC were on brief, for appellants.

Barbara A. Smith, with whom Dan H. Ball, Timothy J. Hasken, K. Lee Marshall, and Bryan Cave Leighton Paisner LLP were on brief, for appellee.

Philip S. Goldberg, Mark A. Behrens, Andrew J. Trask, and Shook Hardy & Bacon L.L.P. on brief for Juvenile Products Manufacturers Association, Chamber of Commerce of the United States of America, National Association of Manufacturers, and National Retail Federation, amici curiae.

Before Lynch and Selya, Circuit Judges, and McElroy,^* District Judge.

LYNCH, Circuit Judge.

The district court dismissed the plaintiffs/appellants' operative complaint ("complaint") in this putative class action for lack of Article III standing. See In re Evenflo Co. Mktg., Sales Pracs. & Prods. Liab. Litig., No. 20-md-02938, 2022 WL 252331, at *1, *5-6 (D. Mass. Jan. 27, 2022). The complaint alleges that the defendant, Evenflo Company, Inc. ("Evenflo"), made several misrepresentations about the safety and testing of its children's Big Kid car booster seat and that the plaintiffs bought the seat relying on those misrepresentations for use by their children and grandchildren (collectively, "children"). The complaint alleges that, but for Evenflo's misrepresentations, the plaintiffs would not have purchased the seat, would have paid less for it, and/or would have bought a safer alternative. We refer to these three harms as "overpayment." The complaint alleges that Evenflo's misrepresentations caused the plaintiffs to spend money that they otherwise would not have spent. It does not allege that the plaintiffs' children were hurt while using the seat or that the product otherwise failed to perform. The complaint raises a variety of state law claims and requests monetary, declaratory, and injunctive relief.

We hold that the plaintiffs' pleadings plausibly demonstrate their standing to seek monetary relief. We also hold that the plaintiffs lack standing to seek declaratory and injunctive relief. We affirm in part, reverse in part, and remand for further proceedings.

I.

A.

We describe the facts as they appear in the plaintiffs' complaint. Hochendoner v. Genzyme Corp., 823 F.3d 724, 728 (1st Cir. 2016).

The complaint asserts fifty-eight state law counts, including claims for fraudulent concealment, unjust enrichment, negligent misrepresentation, violations of various state consumer protection statutes, and breaches of implied warranties of merchantability under several other state statutes. The plaintiffs seek to certify a nationwide class of "[a]ll persons in the United States ... who purchased an Evenflo ‘Big Kid’ booster seat between 2008 and the [complaint's filing]," as well as subclasses for each state, the District of Columbia, and Puerto Rico, and request monetary, injunctive, and declaratory relief.

The complaint alleges that "the market for children's car safety seats is generally grouped around ... three basic designs that track, sequentially, with children's growing weights and heights: rear-facing seats, forward-facing seats with harnesses, and belt-positioning booster seats." Evenflo manufactures and sells all three types of seats. The plaintiffs' allegations concern the Big Kid booster seat, a model introduced in the early 2000s and said to offer similar features to a booster seat sold by one of Evenflo's leading competitors but intended to sell for approximately $10 less.

The complaint focuses on two misrepresentations Evenflo allegedly made about the Big Kid on its website and packaging, in marketing materials, and in its product descriptions at major retailers between 2008 and 2020.

First, Evenflo represented the Big Kid as safe for children as small as thirty pounds. The complaint alleges that Evenflo was aware "[a]s early as 1992 ... that booster seats were not safe for children under 40 pounds," based on a National Highway Traffic Safety Administration ("NHTSA") "flyer that was [then] pending approval." That flyer stated that a "toddler over one year of age, weighing 20 to 40 pounds, is not big enough for a booster." Further, "since the early 2000s, the [American Academy of Pediatrics ("AAP")] has advised that children who weigh 40 pounds or less ... are best protected in a seat with its own internal harness." In 2011, both NHTSA and the AAP updated their guidances to reflect "that parents should keep their children in rear-facing child safety seats for as long as possible before transitioning them to forward-facing harnessed seats, and that switching children to booster seats [from forward-facing harnessed seats] at 40 pounds was no longer recommended." In 2012, "Evenflo's top booster seat engineer" delivered an internal presentation that Evenflo should "modify[ ] the [Big Kid's] weight rating to 40 [pounds]" in order to "discourage early transitions to booster seats," which place younger children at an "increased risk of injury." A senior marketing director "vetoed" this weight recommendation; the same marketing executive also rejected another proposal to modify the weight limit later that year.

Second, the complaint alleges that Evenflo misrepresented that the Big Kid had been "side impact tested." Evenflo also stitched a "side impact tested" label onto the seats. Evenflo described its side impact testing on its website as meeting or exceeding federal standards and "simulat[ing] the government side impact tests conducted for automobiles."

The plaintiffs describe this side impact testing claim as "misleading at best." Between 2008 and 2020, NHTSA did not require or set a standard for side impact testing of booster seats. See 49 C.F.R. § 571.213 (setting requirements for child seats). The complaint alleges that NHTSA's side impact testing for vehicles incorporates two different tests, assessing the damage done to crash test dummies after (1) crashing "a 3,015 pound moving barrier ... at 38.5 miles per hour into a standing vehicle" and (2) pulling "a vehicle angled at 75 degrees ... sideways at 20 miles per hour into a 25 cm diameter pole at the driver's seating location." Evenflo's test was "performed by placing a product on a bench (resembling a car seat), moving that bench at 20 miles per hour, then suddenly decelerating it." Evenflo considered a booster seat to have failed this test only if "(1) ... a child-sized dummy escape[d] its restraint entirely, ... or (2) the booster seat itself [broke] into pieces." An Evenflo technician "has stated that, in 13 years, he did not once perform a ‘failed’ side-impact test," and an Evenflo engineer "admitted under oath that, when real children move in [ways displayed by crash test dummies in tests considered successful by Evenflo], they are at risk for injurious head contact."

B.

The plaintiff Evenflo customers brought a number of suits against the company related to the Big Kid's marketing and safety in various federal district courts in early 2020. The Judicial Panel on Multidistrict Litigation centralized the actions and then transferred them to the District of Massachusetts in June 2020.

On October 20, 2020, the plaintiffs filed a consolidated amended class action complaint. This operative complaint names forty-three plaintiffs from twenty-eight states who purchased Big Kids for their children between 2010 and 2020. The complaint alleges that Evenflo's representations that the Big Kid was side impact tested and safe for children as small as thirty pounds were false or misleading. Three of the plaintiffs allegedly were involved in car accidents after purchasing the Big Kid, but none seek recovery for any physical injuries, if there were any, to their children. Although the exact language varies over the course of the complaint, the complaint typically alleges that "[h]ad [the plaintiffs] known about the defective nature of Evenflo's Big Kid booster seat[ ], [they] would not have purchased the seat, would have paid less for it, or instead would have purchased one of many safer available alternatives."

On November 20, 2020, Evenflo moved to dismiss the complaint with prejudice. Evenflo argued that the plaintiffs lacked standing because they had not been injured by Evenflo's conduct, that the complaint failed to state a claim under Federal Rule of Civil Procedure 12(b)(6), and that the plaintiffs had not pleaded their fraud claims with the particularity required by Rule 9(b).

The district court concluded that the plaintiffs lacked standing and granted Evenflo's motion on January 27, 2022. See In re Evenflo, 2022 WL 252331, at *1, *5-6. The court reasoned that the plaintiffs had failed to establish any economic...