Simply final week we blogged about our disappointment over the Third Circuit’s resurrection of a “good thing about the discount idea” of standing in Huertas v. Bayer US LLC, 120 F.4th 1169 (3d Cir. 2024). However we additionally acknowledged that Huertas had a silver lining that defendants may nonetheless use to problem standing—by difficult the standard/amount of plaintiff’s allegations of product testing. Mere days later we occurred upon a defendant that did simply that in Pineda v. Lake Shopper Merchandise, Inc., 2024 U.S. Dist. LEXIS 220895 (E.D. Pa. Dec. 5, 2024).
Plaintiff filed a putative class motion lawsuit towards defendant, the producer of coal tar shampoo merchandise, alleging its merchandise had been contaminated with benzene. Identical to in Huertas, plaintiff alleged that she suffered an financial harm as a result of the presence of benzene within the shampoo made the product “value much less” than what she paid for it. Below Huertas, the district court docket was obligated to conclude that was a cognizable harm. Id. at *7. However to confer standing, the harm additionally must be “concrete and particularized.”
Standing requires plaintiff to “plausibly allege that her product was defectively manufactured—or that it contained benzene.” Id. at *8. Once more, like in Huertas, plaintiff alleged that testing revealed the presence of benzene in defendant’s “coal tar shampoo merchandise.” However as used within the criticism, that time period referred to a number of of defendant’s merchandise, of which plaintiff used “at the least one.” In different phrases, plaintiff didn’t have proof that the shampoo she purchased was contaminated, so she was making an attempt to depend on “consultant testing.” And whereas the hurdle for establishing standing by way of consultant testing isn’t excessive, it does exist. In Huertas, plaintiff cleared that hurdle by demonstrating that the pattern of merchandise examined all got here from the identical lot, which was similar lot because the recalled merchandise that plaintiff had bought. Plaintiff was in a position to exhibit a connection between his merchandise and the alleged hurt.
However the allegations in Pineda had been “extremely imprecise.” Id. at *13. Plaintiff didn’t allege which merchandise had been examined. She didn’t allege when the examined had been merchandise had been bought which “may give rise to an affordable inference that Plaintiff’s merchandise had been equally contaminated.” Id. at *14. No lot numbers had been talked about, and no allegations gave the court docket any purpose to deduce that the contamination was “so widespread” as to fairly embrace plaintiff’s merchandise. Main the court docket to seek out that plaintiff’s “broad” allegations relating to testing are “so unspecified” that they “cease in need of the road between risk and plausibility.” Id.
As we predicted, the scope of accessible testing straight impacts who has standing to carry such a financial loss contamination-based class motion. And whereas we would like no “good thing about the discount” standing, conserving it narrowly centered must do for now.
