Kommer v. Bayer Consumer Health

SUMMARY ORDER

James Kommer brought this putative class action in the United States District Court for the Southern District of New York (Batts, J.), alleging that the defendants’ marketing of their product, “Dr. Scholl’s Custom Fit Orthotic Inserts,” constitutes a deceptive business practice and false advertising under New York General Business Law (“GBL”) §§ 349 and 350. In essence, the complaint alleges that Kom-mer and other consumers were led to believe incorrectly that the orthotics — which they purchased in prepackaged sizes, over-the-counter at retail stores such as Wal-mart — were “custom fit” in the sense that they were “individually designed for each [consumer’s specific] feet.” App’x at 12. On motion of the defendants, the district court dismissed the request for injunctive relief for lack of Article III standing, and the balance of the complaint for failure to state a claim. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

1. Kommer challenges the district court’s determination that he lacks Article III standing to seek injunctive relief on behalf of himself and the putative class. See U.S. Const, art. Ill, § 2. We review that determination de novo. See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 238 (2d Cir. 2016).

“A plaintiff seeking to represent a class must personally have standing” to pursue “each form of relief sought.” Id. at 239. A plaintiff “lack[s] standing to pursue injunc-tive relief [if he is] unable to establish a ‘real or immediate threat’ of injury.” Id. (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111-12, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). “[P]ast injuries ... [therefore] do not confer standing to seek injunctive relief unless the plaintiff can demonstrate that [ ]he is likely to be harmed again in the future in a similar way.” Id.

Kommer fails to “establish a likelihood of [such] future ... harm.” Id. “Even assuming his past purchases of [Dr. Scholl’s Custom Fit Orthotic Inserts] resulted in [an] injury ..., he has not shown that he is likely to be subjected to further [injurious] sales” of that sort because he “fail[s] to allege that he intends to [purchase the offending product] in the future.” Id. As he concedes, “now [that he] knows of Defendants’ [alleged] deception and false advertising, ... he is no longer likely to purchase another pair of Dr. Scholl’s Custom Fit Orthotics Inserts ever again.” Appellant’s Br. at 54. Accordingly, he has no standing under Article III to enjoin the defendants’ sales practices, and the court properly deemed him precluded from seeking that relief.

2. Kommer challenges the district court’s determination that his complaint fails to state a claim under GBL §§ 349 and 350. See Fed. R. Civ. P. 12(b)(6). We review that determination de novo. See Nicosia, 834 F.3d at 230.

An independent review of the allegations and relevant state law confirms that the complaint fails to state a claim. This is so for substantially the reasons articulated in the district court’s May 18, 2017 Memorandum and Order. See Kommer v. Bayer Consumer Health, 252 F.Supp.3d 304, 310-13 (S.D.N.Y. 2017). In particular, the complaint fails to plausibly allege that the defendants engaged in conduct “likely to mislead a reasonable consumer acting reasonably under the circumstances,” a required element of both claimed violations of the GBL. Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 126 (2d Cir. 2007)). The court therefore properly dismissed the case.

We have considered Kommer’s arguments and find them to be without merit. For the foregoing reasons, we AFFIRM the judgment of the district court.