PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-2980
_____________
IN RE: JOHNSON & JOHNSON TALCUM POWDER
PRODUCTS MARKETING, SALES PRACTICES AND
LIABILITY LITIGATION
Mona Estrada,
Appellant
_____________
On Appeal from the United States District Court
for the District of New Jersey
District Court Nos. 3-16-cv-07492 and 3-16-md-02738
District Judge: The Honorable Freda L. Wolfson
Argued June 14, 2018
Before: SMITH, Chief Judge, CHAGARES, and
FUENTES, Circuit Judges
(Filed: September 6, 2018)
Timothy G. Blood [ARGUED]
Blood Hurst & O’Reardon
501 West Broadway
Suite 1490
San Diego, CA 92101
Charles L. Gould
Alison D. Hawthorne
W. Daniel Miles, III
Beasley, Allen, Crow, Methvin, Portis & Miles
218 Commerce Street
Montgomery, AL 36104
Counsel for Appellant
Adam M. Kaplan
Matthew D. Powers [ARGUED]
James K. Rothstein
O’Melveny & Myers
Two Embarcadero Center
28th Floor
San Francisco, CA 94111
Counsel for Appellee
________________
OPINION
________________
2
SMITH, Chief Judge.
The question presented in this appeal from a
dismissal of a class action is both narrow and novel: Has a
plaintiff—who has entirely consumed a product that has
functioned for her as expected—suffered an economic
injury solely because she now sincerely wishes that she
had not purchased that product? We hold that such a
plaintiff has not suffered an economic injury sufficient to
bring a claim in federal court. More succinctly, buyer’s
remorse, without more, is not a cognizable injury under
Article III of the United States Constitution.
A plaintiff alleging an economic injury as a result
of a purchasing decision must do more than simply
characterize that purchasing decision as an economic
injury. The plaintiff must instead allege facts that would
permit a factfinder to determine, without relying on mere
conjecture, that the plaintiff failed to receive the economic
benefit of her bargain. Because the plaintiff here has failed
to plead facts sufficient to establish economic harm, the
District Court’s judgment will be affirmed.
I. BACKGROUND
Plaintiff Mona Estrada alleges that a woman’s
perineal use of Defendant Johnson & Johnson’s Baby
Powder can lead to an increased risk of developing ovarian
3
cancer. JA 47. Without question, that is a serious
allegation. Yet the validity of Plaintiff’s epidemiological
theory is not for this court to decide. 1 Nonetheless,
because Estrada has artfully woven that serious allegation
into her complaint—despite it having little connection to
the alleged economic injury that forms the basis of her
claim—we must begin our discussion by carefully
describing what this case is not about.
First, Plaintiff does not allege that a product has
caused her physical injury. 2 Estrada does not allege that
she has ovarian cancer, nor does she allege even an
increased risk of developing cancer. Second, this case
makes no claim of emotional injury. Estrada does not
allege, for example, that she suffers from a fear of
1
“When reviewing an order of dismissal for lack of
standing, we accept as true all material allegations of the
complaint and construe them in favor of the plaintiff.”
Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286,
288 (3d Cir. 2005) (quoting Conte Bros. Auto., Inc. v.
Quaker State–Slick 50, Inc., 165 F.3d 221, 224 (3d Cir.
1998)).
2
JA 49–50 (“Plaintiff is not claiming physical harm or
seeking the recovery of personal injury damages.”).
Excluded from Estrada’s proposed class definition are
individuals “who assert claims from personal injury.” JA
71.
4
someday developing ovarian cancer. Third, this case does
not involve allegations of a defective product. Estrada
purchased Baby Powder labeled as being “designed to
gently absorb excess moisture,” and marketed as being
able to “keep[] skin feeling soft, fresh and comfortable,”
and help “reduce the irritation caused by friction.” JA 52.
She does not allege that her powder failed to adequately
perform any of these functions. 3 Fourth, this case does not
involve a durable product still in a plaintiff’s possession.
Instead, the complaint concerns a nondurable product that
has already been consumed in its entirety. 4 Estrada does
not, for example, seek to be reimbursed for powder that
she still possesses but cannot use. Finally, this case does
3
Nor could Estrada credibly make such an allegation. She
continued to purchase the powder for approximately six
decades—presumably because it worked. See JA 49
(alleging that Estrada purchased Defendant’s baby powder
“[f]rom about 1950 to sometime in 2013”).
4
By “nondurable,” we refer to a product that is consumed
rather quickly—such as a gallon of gasoline. By contrast,
a “durable” product is one that is consumed over a much
longer period of time—such as a new automobile. A
plaintiff who, for example, alleged that her automobile
was at risk of imminently malfunctioning because of a
particular defect would present a much different question
than the one at hand.
5
not involve any number of other economic theories that
might confer Article III standing on other plaintiffs. For
instance, Estrada does not seek to be reimbursed for
medical monitoring expenses, nor does she seek to recoup
transaction costs associated with reselling or returning
Baby Powder.
What, then, does Estrada allege? Her theory of
recovery is simply that she suffered an economic injury by
purchasing improperly marketed Baby Powder. JA 49.
According to Estrada, had she been properly informed that
using Baby Powder could lead to an increased risk of
developing ovarian cancer, she would not have purchased
the powder in the first place. JA 49, 70. Characterizing this
as an economic injury, she seeks relief for herself and a
class of similarly situated consumers.5
Estrada first brought this lawsuit in the United
States District Court for the Eastern District of California.
JA 46. On March 27, 2015, that court dismissed Estrada’s
complaint for lack of Article III standing. Estrada Br. 7.
5
Estrada seeks certification of a class defined as “All
persons who purchased [Johnson & Johnson] Baby
Powder in California and states with laws that do not
conflict with the laws asserted here.” JA 71. However
broad this proposed definition, apparently covering even
men (who are obviously incapable of developing ovarian
cancer), we are not presented with issues arising under
Rule 23 of the Federal Rules of Civil Procedure.
6
Estrada then filed an amended complaint, but before the
Eastern District of California could rule on that complaint,
the case was consolidated as part of a Multidistrict
Litigation proceeding and transferred to the United States
District Court for the District of New Jersey (the “District
Court”). JA 44; Estrada Br. 7.
On July 14, 2017, the District Court dismissed
Estrada’s complaint without prejudice for lack of Article
III standing, and granted her leave to amend. JA 5. After
Estrada informed the District Court that she chose not to
amend and would stand on her complaint, the District
Court dismissed the case on August 10, 2017. JA 4.
In concluding that Estrada did not have Article III
standing, the District Court explicitly considered whether
Estrada’s allegations fell within any one of three different
theories of economic injury: (1) alternative product; (2)
premium price; and (3) benefit of the bargain. JA 16–17.
Estrada challenges this tripartite analysis, contending that
the District Court inappropriately funneled her allegations
into “one of three assumed damage methodologies.”
Estrada Br. 7. But Estrada was not restricted to the three
theories considered by the District Court; she was free to
present additional theories of her own—particularly by
amending her complaint when the District Court offered
her the opportunity to do so. In examining Estrada’s
complaint through the lens of three different theories of
injury, the District Court merely fulfilled its duty to
7
“examine the allegations in the complaint from a number
of different angles” in order to see if the “purported injury
can be framed in a way that satisfies Article III.”
Finkelman v. Nat’l Football League, 810 F.3d 187, 197
(3d Cir. 2016).
Under the alternative product theory, a plaintiff
might successfully plead an economic injury by alleging
that, absent the defendant’s conduct, she would have
purchased an alternative product that was less expensive.
Under this theory, the economic injury could be calculated
by determining the difference in price between the
defendant’s more expensive product and the less
expensive alternative. Portions of Estrada’s complaint can
reasonably be read as an attempt to allege this very theory
of injury. Her complaint states, for example, that had she
“known the truth about the safety of using [Johnson &
Johnson’s talc-based Baby Powder], she would not have
purchased the product,” but instead “would have
purchased an alternative product containing cornstarch
instead of talc.” JA 49. 6 According to Estrada’s complaint,
6
As explained in Estrada’s complaint, Johnson &
Johnson’s “Baby Powder is made entirely of talc and
fragrance. Talc is a mineral composed of hydrated
magnesium silicate that is mined from the earth. It is an
inorganic material. Talc is used to manufacture goods,
such as paper making, plastic, paint and coatings, rubber,
food, electric cable, ceramics, and cosmetics. In its loose
8
“alternative powder products that are cornstarch[-]based .
. . do not pose a risk of ovarian cancer and are otherwise
functionally the same as talc products.” JA 54. Upon
considering these allegations, the District Court concluded
that Estrada could not avail herself of the alternative
product theory because she failed “to allege that a
cornstarch-based product would have been cheaper.” JA
30. In other words, paying less for Baby Powder than an
alternative would not constitute an economic injury.
Under a second theory analyzed by the District
Court, the premium price theory, a plaintiff may plead an
economic injury by alleging that the defendant unlawfully
advertised its product as being “superior” to others.
Applying this approach, economic injury is calculated as
the unfair “premium” that the plaintiff was unlawfully
induced to pay. The District Court concluded that Estrada
did not sufficiently allege an economic injury under this
theory because she did not claim that Johnson & Johnson
“advertised Baby Powder as superior to other products,”
nor did she allege that “she would not have paid a premium
for Baby Powder” but for such advertisements. JA 35. In
other words, Estrada identified no unlawful “premium.”
Estrada concedes that her claims do not fall within
either the alternative product or premium price theories of
economic injury. Estrada Br. 25 (“Estrada’s injury in this
form and as used in the Baby Powder, talc is known as
‘talcum powder.’” JA 54.
9
case does not depend on her ability to purchase an
alternative product at a cheaper price.”); id. at 26 (“[T]he
district court’s ‘premium price’ methodology has nothing
to do with Estrada’s claims.”); Reply Br. 12 (“The District
Court’s ‘Alternative Product’ and ‘Price Premium’
Theories Are Irrelevant”). Indeed, Estrada has failed to
identify either a cheaper alternative or an unlawful
premium. Any economic injury she may have suffered,
then, must be conceptualized by applying some other
theory of injury. Accordingly, the third theory of injury
analyzed by the District Court, the benefit of the bargain
theory, merits our attention.
Under the benefit of the bargain theory, a plaintiff
might successfully plead an economic injury by alleging
that she bargained for a product worth a given value but
received a product worth less than that value. The
economic injury is calculated as the difference in value
between what was bargained for and what was received.
The District Court concluded that Estrada’s allegations
also failed to fit within this theory of harm because she
purchased and received Baby Powder that successfully did
what the parties had bargained for and expected it to do:
eliminate friction on the skin, absorb excess moisture, and
maintain freshness. JA 17–18, 29–30. On appeal, Estrada
rejects the significance of the Baby Powder performing
these functions. She contends that although she received
Baby Powder that eliminated friction on the skin, absorbed
excess moisture, and maintained freshness, she was also
10
promised that the Baby Powder would be “safe.” Instead,
Estrada contends, the product was “unsafe.” Estrada Br.
19–20. We focus, then, on this contention and consider
whether Estrada has successfully alleged an economic
injury sufficient to confer Article III standing.7
II. STANDING JURISPRUDENCE
Article III of our Constitution vests “[t]he judicial
power of the United States” in both the Supreme Court and
“such inferior courts as the Congress may from time to
time ordain and establish.” U.S. Const. art. III., § 1. While
Article III does not outline the exact contours of this
“judicial power,” the Constitution “does specify that this
power extends only to ‘Cases’ and ‘Controversies.’”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)
(quoting U.S. Const. Art. III, § 2). In order to avoid
violating this “Cases and Controversies” limitation, a
party seeking to invoke the federal judicial power must
first establish that they have “standing” to do so. Id. 8 This
7
“We exercise plenary review over a dismissal for lack of
standing.” Cottrell v. Alcon Laboratories, 874 F.3d 154,
161 (3d Cir. 2017)
8
Although Article III does not explicitly refer to
“standing,” the judicial doctrine derives from the principle
of separation-of-powers. See, e.g., Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 408 (2013) (“The law of Article
III standing, which is built on separation-of-powers
principles, serves to prevent the judicial process from
11
standing requirement “limits the category of litigants
empowered to maintain a lawsuit in federal court to seek
redress for a legal wrong,” and “ensure[s] that federal
courts do not exceed their authority as it has been
traditionally understood.” Id.
To establish standing, a plaintiff must have “(1)
suffered an injury in fact, (2) that is fairly traceable to the
being used to usurp the powers of the political branches.”);
John G. Roberts, Jr., Article III Limits on Statutory
Standing, 42 DUKE L.J. 1219, 1226 (1993) (“If Congress
directs the federal courts to hear a case in which the
requirements of Article III are not met, that Act of
Congress is unconstitutional. . . . [T]he conclusion that
Article III limits congressional power can hardly be
regarded as remarkable.”); Antonin Scalia, The Doctrine
of Standing as an Essential Element of the Separation of
Powers, 17 SUFFOLK U. L. REV. 881, 881 (1983) (“My
thesis is that the judicial doctrine of standing is a crucial
and inseparable element of th[e] principle [of separation-
of-powers], whose disregard will inevitably produce—as
it has during the past few decades—an overjudicialization
of the processes of self-governance.”). While Estrada
presents theories of harm that rest upon California law
rather than a statute enacted by Congress, the
constitutional limitations imposed on our jurisdiction
remain the same. Federal courts are not at liberty to opine
on state law absent Article III jurisdiction.
12
challenged conduct of the defendant, and (3) that is likely
to be redressed by a favorable judicial decision.” Id. This
appeal focuses on the “‘[f]irst and foremost’ of standing’s
three elements,” injury in fact. Id. (quoting Steel Co. v.
Citizens for Better Environment, 523 U.S. 83, 103 (1998)).
Satisfying the injury in fact element requires the party
seeking to invoke federal jurisdiction to establish three
sub-elements. Mielo v. Steak ’n Shake, 897 F.3d 467, ___
n.11 (3d Cir. 2018). First, the party must “show that he or
she suffered ‘an invasion of a legally protected interest.’”
Spokeo, 136 S. Ct. at 1548 (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992)). Second, the party
must show that the injury is both “concrete and
particularized.” Id. Finally, the party must show that his or
her injury is “actual or imminent, not conjectural or
hypothetical.” Id.
Because Estrada is the party seeking to invoke
federal jurisdiction, “[t]he burden to establish standing”
rests with her. Finkelman, 810 F.3d at 194. Indeed, she
specifically “bears the burden of showing that [s]he has
standing for each type of relief sought.” Summers v. Earth
Island Inst., 555 U.S. 488, 493 (2009) (emphasis added).
Because Estrada seeks relief in the form of (1) monetary
damages, (2) restitution, and (3) injunctive relief, JA 79,
our standing inquiry will consider, in turn, whether
Estrada has established standing to seek these three
categories of relief.
13
III. MONETARY DAMAGES
In considering whether Estrada has standing to seek
monetary damages, we focus our analysis on two recent
Article III standing opinions from this Court: Finkelman
v. National Football League, 810 F.3d 187 (3d Cir. 2016),
and Cottrell v. Alcon Laboratories, 874 F.3d 154 (3d Cir.
2017). These precedential opinions represent two sides of
the same coin. And in each, we considered whether the
plaintiffs’ theory of economic injury was too conjectural
to establish standing.
While in Cottrell we concluded that the plaintiffs’
economic theory of harm was based on more than mere
conjecture, in Finkelman we concluded just the opposite.
The two holdings can be harmonized, however, to provide
a clear lesson: a plaintiff must do more than offer
conclusory assertions of economic injury in order to
establish standing. She must allege facts that would permit
a factfinder to value the purported injury at something
more than zero dollars without resorting to mere
conjecture. Accordingly, Estrada must do more than
simply characterize her Baby Powder purchases as
economic injuries; she must allege facts that would permit
a factfinder to determine that the economic benefit she
received in purchasing the powder was worth less than the
economic benefit for which she bargained. A brief
description of the holdings in Finkelman and Cottrell
brings this lesson into focus.
14
In Finkelman, two plaintiffs alleged that the
National Football League (“NFL”) had a ticketing policy
of reserving tickets for League Insiders that resulted in
Super Bowl tickets being priced higher than they would
have been had the NFL offered to sell more tickets to the
general public. Finkelman, 810 F.3d at 190. We concluded
that one of the plaintiffs in that case, Hoch–Parker, had not
suffered an economic injury sufficient to confer Article III
standing. Id. at 196. That was because Hoch–Parker had
not even attempted to purchase Super Bowl tickets; he had
only considered the possibility of doing so. Id. at 195–96.
A second plaintiff, Finkelman, presented a closer
case because he alleged that he had actually purchased
Super Bowl tickets. Id. at 197. We therefore examined his
allegations through the lens of two different theories of
economic injury. Under the first theory, Finkelman alleged
that the NFL’s ticket policy injured him by preventing him
from successfully purchasing a ticket at face value in a
ticket lottery. Id. But because Finkelman never entered
that lottery, we concluded that this economic theory failed
to afford a basis for standing. Id. at 199. His failure to even
attempt to purchase a ticket through the lottery meant that
“there was always a zero percent chance that he could
procure a face-price ticket.” Id. at 198. Any economic
harm that Finkelman might have suffered as a result of not
purchasing Super Bowl tickets through the lottery was
therefore not attributable to the NFL’s conduct. Id.
15
Although Finkelman did not participate in the ticket
lottery, he did allege that he purchased tickets in a
secondary market where tickets from the lottery were
resold. Id. at 199. Under a different economic theory, then,
Finkelman contended that the NFL’s ticket policy inflated
the price of tickets on the resale market in which he had
participated. Id. at 199. In particular, Finkelman alleged
that had the NFL originally released more tickets for sale
to the general public, there would have been greater
availability of such tickets on the resale market. Id. at 199–
200. That increase in supply, he claimed, would have
resulted in a reduction in price. Id.
Finkelman contended that his economic injury
could be calculated as the difference between what he
actually paid, and what he claimed he should have paid
had the NFL released more tickets to the general public.
Id. We concluded that this theory failed to provide
Finkelman with standing, since “League [I]nsiders . . . had
the same incentive to resell their tickets as the unnamed
broker who sold Finkelman his two tickets.” Id. at 200. In
recognizing that economic incentive, we explained that
“while it might be the case that the NFL’s withholding [of
tickets] increased ticket prices on the resale market, it
might also be the case that it had no effect on the resale
market.” Id. 9
9
We further noted that the NFL’s withholding of “tickets
from the general public . . . might have even increased the
16
In summarizing the issue with Finkelman’s second
economic theory of injury, we explained that “we have no
way of knowing whether the NFL’s withholding of tickets
would have had the effect of increasing or decreasing
prices on the secondary market. We can only speculate—
and speculation is not enough to sustain Article III
standing.” Id. Although we noted that courts often “credit
allegations of injury that involve no more than ‘application
of basic economic logic,’” Id. at 201 (quoting United
Transp. Union v. I.C.C., 891 F.2d 908, 912 n.7 (D.C. Cir.
1989)), we further explained that “there is a difference
between allegations that stand on well-pleaded facts and
allegations that stand on nothing more than supposition.”
Id. Cognizant that “even at the pleading stage, ‘we need
not accept as true unsupported conclusions and
unwarranted inferences,’” Id. at 202 (quoting Maio v.
Aetna, Inc., 221 F.3d 472, 500 (3d Cir. 2000)), we
supply of tickets on the resale market, leading to lower
prices.” Finkelman, 810 F.3d at 200. This was because
League Insiders—who might have received their Super
Bowl Tickets for free—could have been more inclined to
resell their tickets than members of the general public
were, since League Insiders could “pocket[] the entire
resale price of the ticket as profit.” Id.
17
concluded that Finkelman needed to present the court with
additional facts in order to establish standing. 10
Unlike the economic theories in Finkelman, the
plaintiffs’ theories in Cottrell were sufficient to establish
Article III standing. In Cottrell, we held that plaintiffs,
who purchased prescription eye-drops, had Article III
standing to sue the manufacturers and distributors of those
eye-drops. Cottrell, 874 F.3d at 169–70. The plaintiffs
alleged that “manufacturers and distributors . . . packaged
[the solution] in such a way that forced [plaintiffs] to waste
10
After remand, Finkelman abandoned his first theory of
economic harm and presented the district court with
additional facts supporting his second theory. Finkelman
v. Nat’l Football League, 877 F.3d 504, 512 (3d Cir.
2017). In particular, “Finkelman added facts alleged by . .
. an economist who specializes in sports and ticketing on
the workings of secondary ticket markets in events like the
Super Bowl.” Id. at 509. That economist explained, inter
alia, “that under the NFL’s current system, NFL insiders
sell their tickets to a concentrated group of brokers, who
in turn charge more for tickets on the secondary market.
Without the NFL withholding, [the economist] posited
that there would be more fan-to-fan direct sales of tickets,
cutting out more brokers and allowing for lower prices.”
Id. Only after the presentation of these additional facts did
we conclude that Finkelman had Article III standing. Id. at
513.
18
it.” Id. at 159. Specifically, the plaintiffs claimed that the
eye medication could only be dispensed from “unfairly”
designed bottles that released drops larger than the human
eye could hold at one time. Id. at 159, 161.
We concluded that the Cottrell plaintiffs had
standing only after we conducted an analysis of their
economic theories—as we did in Finkelman—and
determined that the Cottrell plaintiffs’ attempt to place an
economic value on the “wasted” portion of the eye-drops
was not conjectural. Id. at 168. Estrada attempts to read
this important limitation out of Cottrell. She contends that
Cottrell “confirmed that a consumer’s purchase of a
product based on the manufacturer’s deceptive and unfair
business practices constitutes injury-in-fact.” Estrada Br.
2. In so arguing, Estrada overreads our opinion. The
Cottrell plaintiffs did not have standing simply because
they purchased a product that a consumer would view as
flawed. Rather, the plaintiffs had standing only because
they were unable to use a portion of the eye-drop
medication they had purchased, and they alleged an
economic theory that allowed them to value that unused
portion. 11
11
Were we to accept Estrada’s argument, one might
reasonably wonder whether the Cottrell plaintiffs were
foolish for suing only for the value of the portion of the
eye-drops that they could not use, rather than suing for the
value of the entire bottle. But unlike Estrada—who alleges
19
We did not offer lengthy analyses of the various
economic theories presented in either Finkelman or
Cottrell because we wished to sound pedantic. We
conducted those analyses because Article III requires us
to ensure that plaintiffs present more than merely
conjectural assertions of injury. Finkelman, 810 F.3d at
193 (recognizing a “federal court’s obligation to assure
itself that it has subject matter jurisdiction”).
Estrada nonetheless contends that, unlike the
plaintiffs in Finkelman and Cottrell, she is not required to
offer any economic theory of injury at the pleading stage.
As her opening brief puts it, “[t]he amount Estrada and
other members of the class may receive in damages or
restitution is a different question than whether [she] has
standing.” Estrada Br. 26. Estrada further promises that,
“[a]t the appropriate time after discovery,” she will “put
forth models for calculating damages and restitution that
are linked to her theory of relief and are based on the
evidence in the case.” Id. Estrada’s request to indefinitely
defer what is a pleading obligation is not one we may grant
and still fulfill our constitutional obligations.
To start, Estrada’s promise to provide us with a
means to conceptualize her injury at some future time does
an economic injury which includes portions of a product
that she actually consumed—the Cottrell plaintiffs alleged
an economic injury consisting of only the “wasted”
portion of the product.
20
nothing to assist us in determining whether Estrada has
standing at this stage. Finkelman, 810 F.3d at 202 (“Nor
are we persuaded by plaintiffs’ counsel’s promises of
future expert testimony when no facts supporting
plaintiffs’ theory of injury appear within the four corners
of the complaint.”). Our standing inquiry is restricted to
the allegations currently before us.
In order to allege that she has suffered an economic
injury as a result of simply purchasing Baby Powder,
Estrada must allege that she purchased Baby Powder that
was worth less than what she paid for. This is not to say
that a plaintiff is required to allege the exact value of her
economic injury at the pleading stage. Calculating and
proving damages is indeed one of the major phases of a
civil trial, and a plaintiff need not develop detailed
economic models at the pleading stage to establish that she
has standing.
But even at the pleading stage, a plaintiff must set
forth sufficient factual allegations that, if proven true,
would permit a factfinder to determine that she suffered at
least some economic injury. Danvers Motor Co. v. Ford
Motor Co., 432 F.3d 286, 294 (3d Cir. 2005) (recognizing
that establishing an injury in fact requires alleging an
“identifiable trifle” of injury (quoting Bowman v. Wilson,
672 F.2d 1145, 1151 (3d Cir. 1982)). The Cottrell
plaintiffs satisfied this relatively low hurdle by providing
two theories which valued the “wasted” portion of the
21
medication that they had purchased. Cottrell, 874 F.3d at
168. One of the plaintiffs in Finkelman accomplished the
same, after remand, by putting forth analysis by an
economist who could explain how the NFL’s ticketing
policy allegedly resulted in increased resale prices.
Finkelman, 877 F.3d at 509.
It would not have been enough for the plaintiffs in
Cottrell and Finkelman to simply allege that, although
they purchased eye-drops and football tickets at a given
price, they later wished they had not done so. But that is
as far as Estrada’s allegations of economic injury go.
Although “[i]njury-in-fact is not Mount Everest,”
Danvers, 432 F.3d at 294, it is more than a desert mirage.
While the evidentiary burdens placed on a plaintiff at the
pleading stage are minimal, our precedent requires the
plaintiff to do more than simply pair a conclusory assertion
of money lost with a request that a defendant pay up.12
12
See, e.g., Twp. of Lyndhurst, N.J. v. Priceline.com Inc.,
657 F.3d 148, 153, 155 (3d Cir. 2011) (concluding that a
plaintiff-municipality’s lost tax revenue, which could be
calculated as the difference between taxes paid on
“wholesale” rates and taxes paid on “retail” rates,
constituted an economic injury sufficient to confer Article
III standing); Danvers, 432 F.3d at 292 (referring to
complaint language alleging that the Ford Motor
Company’s conduct required the plaintiffs-dealerships to
make “very significant out-of-pocket investments to
22
Estrada fails to allege even that the Baby Powder provided
her with an economic benefit worth one penny less than
what she paid. We must, therefore, conclude that she
received the benefit of her bargain and has suffered no
economic injury.
But what are we to make of Estrada’s allegations
that she received only “unsafe” Baby Powder despite
being promised “safe” Baby Powder? Estrada Br. 19–20.
comply with Ford’s requirements,” and further noting that
“[p]laintiffs even break down the amount of money spent
per dealership”); see also Rivera v. Wyeth-Ayerst Labs,
283 F.3d 315, 319 (5th Cir. 2002) (“Merely asking for
money does not establish an injury in fact.”); O’Neil v.
Simplicity, Inc., 574 F.3d 501, 504–05 (8th Cir. 2009)
(noting that “[t]his case is similar to other no-injury
cases,” and concluding that “[t]he [plaintiffs’ product]
performs just as it was intended, and thus there is no injury
and no basis for relief”). But see Mazza v. Am. Honda
Motor Co., 666 F.3d 581, 595 (9th Cir. 2012) (“Plaintiffs
contend that class members paid more for [a braking
system] than they otherwise would have paid, or bought
it when they otherwise would not have done so, because
Honda made deceptive claims and failed to disclose the
system’s limitations. To the extent that class members
were relieved of their money by Honda’s deceptive
conduct—as Plaintiffs allege—they have suffered an
‘injury in fact.’” (citation omitted)).
23
Can we not presume that Estrada would spend more for
safe powder than she would for unsafe powder? Should we
further presume that this difference in price constitutes an
economic injury sufficient to confer Article III standing?
We cannot do so for at least two reasons—the first based
in law, and the second based in fact.
First, such presumptions would turn the standing
question on its head. It is well-settled law that “[w]e
presume that federal courts lack jurisdiction unless the
contrary appears affirmatively from the record.”
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3
(2006); Renne v. Geary, 501 U.S. 312, 316 (1991) (same);
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546
(1986) (same); King Bridge Co. v. Otoe Cnty., 120 U.S.
225, 226 (1887) (same); Pennsylvania Family Inst., Inc. v.
Black, 489 F.3d 156, 164 (3d Cir. 2007) (same);
Philadelphia Fed’n of Teachers, Am. Fed’n of Teachers,
Local 3, AFL-CIO v. Ridge, 150 F.3d 319, 323 (3d Cir.
1998) (same); Presbytery of N.J. of Orthodox Presbyterian
Church v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994)
(same).
We cannot conclude that we have jurisdiction by
presuming that Estrada would pay less for unsafe powder
when she fails to even plead as much. And our refusal to
leap to such a conclusion is supported by Estrada’s
apparent desire to continue purchasing Baby Powder in the
future despite being aware of its alleged health risks.
24
Estrada Reply Br. 2, 18. It is worthy of note that Estrada’s
desire to continue purchasing Baby Powder is not
conditioned on the powder being sold at a discounted
price. In the absence of that condition, we would be hard-
pressed to presume that Estrada wishes to continue to buy
Baby Powder at anything other than its current market
price, i.e., the very price she has repeatedly paid for the
product over the last six decades.
The second reason we cannot presume that Estrada
suffered an economic injury by failing to receive “safe”
powder is factual. Although Estrada contends that Baby
Powder is “unsafe,” her own allegations require us to
conclude that the powder she received was, in fact, safe as
to her. As we described early in this opinion, Estrada did
not allege that she developed ovarian cancer, nor did she
allege she is at risk of developing ovarian cancer in the
future as a result of her Baby Powder use. Estrada’s
references to Baby Powder being unsafe as to others are
not relevant to determining whether Estrada has standing
herself. Lujan, 504 U.S. at 563 (1992) (“[T]he ‘injury in
fact’ test requires more than an injury to a cognizable
interest. It requires that the party seeking review be
himself among the injured.”) (quoting Sierra Club v.
Morton, 405 U.S. 727, 734–35 (1972)).13
13
The Dissent takes issue with our noting that Estrada
received Baby Powder that was safe as to her. According
to the Dissent, Estrada has standing because although she
25
We could not conclude that Estrada has standing
even if she were to contend that, by “unsafe” powder, she
meant not only powder that would cause her to develop
ovarian cancer but also powder that would put her at risk
of developing ovarian cancer. To be sure, had Estrada
alleged that she was at risk of developing ovarian cancer,
she may have established standing based on a theory of
future physical injury. Because litigants and jurists cannot
received safe powder, others allegedly did not. As
comparative examples, the Dissent refers to a parent who
purchases organic food that turns out to not be organic, a
consumer who purchases locksets marketed as being
“Made in the U.S.A” that ultimately were not so made, and
an observant Jew who purchases nonkosher meat that was
improperly labeled as being kosher. But while the Dissent
might be correct that those hypothetical plaintiffs would
have standing, Estrada’s case is unlike those examples.
Instead, Estrada’s claims are similar to those of a parent
who indeed received organic food, a consumer who indeed
received locksets domestically made, and an observant
Jew who indeed received kosher meat—but who wish to
sue because they claim that other individuals did not
similarly receive the benefit of their own bargains.
Although defendants who perform for some consumers
but not others might be held liable pursuant to other
mechanisms—by, for example, state attorneys general
filing suit—Article III does not permit private plaintiffs to
sue for injuries suffered only by others.
26
predict the future, the law will sometimes permit plaintiffs
to establish standing based on injuries that are likely to
occur later in time.
But Estrada chose not to allege any risk of
developing ovarian cancer in the future. JA 49–50
(“Plaintiff is not claiming physical harm or seeking the
recovery of personal injury damages.”). Given the absence
of such an allegation, Estrada cannot now claim that she
was ever at risk of developing ovarian cancer.
To further illustrate this point, imagine that
Defendants could go back in time to the 1950s when
Estrada first purchased Baby Powder. Imagine further that,
the moment before Estrada purchased that first bottle of
Baby Powder, Defendants informed her that “although this
powder might cause others to develop ovarian cancer, we
have seen the future and we can tell you with absolute
certainty that there is a zero percent chance that this Baby
Powder will ever cause you to develop ovarian cancer.”
Can it be said that a plaintiff with a zero percent chance of
ever experiencing a harm is at “risk” of experiencing that
harm? The question answers itself. And because Estrada
does not allege that she suffered harm through an
increased risk of developing ovarian cancer, we can
conclude that the powder Estrada purchased was not
“unsafe.”
In sum, although Estrada characterizes her Baby
Powder purchases as economic injuries for which she is
27
entitled to relief, she has failed to allege that the economic
benefit she received from that powder was anything less
than the price she paid. In short, she received the benefit
of her bargain. 14 Today, we therefore explicitly hold what
14
To this end, we note that our holding does not conflict
with the Supreme Court of California’s holding in Kwikset
Corp. v. Superior Court, 246 P.3d 877 (Cal. 2011), a case
that Estrada favorably cites. In Kwikset, plaintiffs
purchased locksets labeled “Made in the U.S.A.,” and
contended that they suffered an economic injury because
those locksets contained foreign-made parts. Kwikset, 246
P.3d at 881. Interpreting a state standing provision
purporting to reflect Article III’s injury in fact
requirement, the Supreme Court of California concluded
that these plaintiffs had suffered an economic harm. Id. at
885. As the Court wrote, “[f]or each consumer who relies
on the truth and accuracy of a label . . . the economic harm
is the same: the consumer has purchased a product that he
or she paid more for than he or she otherwise might have
been willing to pay if the product had been labeled
accurately.” Id. at 890.
The key language in that quote, as we read it, is the
language that the Court chose to italicize: that a consumer
has “paid more” for a product than she otherwise would
have had it been properly labeled. Id. In analyzing whether
the plaintiffs “paid more” for their locksets, the Kwikset
Court noted that “[w]hether or not a party who actually
received the benefit of his or her bargain may lack
28
might heretofore have been obvious: a plaintiff does not
have Article III standing when she pleads economic injury
from the purchase of a product, but fails to allege that the
purchase provided her with an economic benefit worth less
than the economic benefit for which she bargained.15
standing, in this case, under the allegations of the
complaint, plaintiffs did not [receive the benefit of their
bargain].” Id. at 892. Unlike the plaintiffs in Kwikset, who
failed to receive the benefit of their bargains and thus
“paid more” for their locksets, Estrada fails to allege the
same.
15
Although Koronthaly v. L’Oreal USA, Inc., 374 F.
App’x 257, 258 (3d Cir. 2010) is an unpublished opinion
and therefore not binding precedent, we find the rationale
presented in that case to be both persuasive and consistent
with our holding here. In Koronthaly, the panel considered
whether a plaintiff had standing to sue a cosmetics
manufacturer for failing to provide warnings about how
much lead was in lipstick. Koronthaly, 374 F. App’x at
258. The plaintiff “did not know when she purchased the
products that they contained any lead, and when she
learned of the lead content she immediately stopped using
them. Moreover, had she known of the lead she would not
have purchased the products.” Id. These facts are nearly
identical to the operative facts in this appeal. In holding
that the plaintiff did not have Article III standing in
Koronthaly, the panel reasoned that “[a]bsent any
29
IV. RESTITUTION
In addition to seeking monetary damages, Estrada
seeks disgorgement of revenues and profit pursuant to the
law of restitution.16 An examination of Estrada’s
complaint reveals that her restitution claims are supported
by only two conclusory assertions. First, Estrada alleges
that Johnson & Johnson has “been able to sell the product
for more than [it] otherwise would have had [it] properly
informed consumers about the safety risks.” JA 48.17
allegation that [the plaintiff] received a product that failed
to work for its intended purpose or was worth objectively
less than what one could reasonably expect, [the plaintiff]
has not demonstrated a concrete injury-in-fact.” Id. at 259.
That same rationale holds true in this case.
16
JA 79 (seeking “restitution and disgorgement of
Defendants’ revenues” and further asking the District
Court to direct “Defendants to identify, with court
supervision, victims of their conduct and pay them
restitution and disgorgement of all monies acquired by
Defendants by means of any act or practice declared by
this Court to be wrongful”).
17
Estrada repeats this same point later in her complaint.
JA 70 (stating that Johnson & Johnson was “able to charge
more than [it] otherwise would have had [it] properly
informed consumers that women who use Baby Powder in
30
Second, Estrada contends that Johnson & Johnson “reaped
and continue[s] to reap enormous profits from [its]
deceptive marketing.” JA 70.
These two statements are nothing more than
conclusory assertions and are therefore inadequate to
provide Estrada with Article III standing. See Finkelman
v. Nat’l Football League, 810 F.3d 187, 201 (3d Cir. 2016)
(“[W]hen it comes to injury, [Finkelman] looks only to the
difference between a ticket’s $800 face price and the price
he paid and says, ‘I have a strong suspicion that this ticket
would have been cheaper if more tickets had been
available for purchase by members of the general public.’
That claim rests on no additional facts at all. It is pure
conjecture about what the ticket resale market might have
looked like if the NFL had sold its tickets differently.
Article III injuries require a firmer foundation.”).
As Part III explained, in order to seek monetary
damages, Estrada must do more than simply characterize
her purchases as economic injuries. The same rationale
holds true as to her restitution claims—Estrada cannot
invoke the federal judicial power simply by asserting that
Johnson & Johnson has earned unlawful profits. Estrada’s
conclusory assertions are further weakened by her alleged
desire to purchase Baby Powder in the future despite
knowing of its alleged health risks. Estrada Reply Br. 2,
the genital area have a significant increased risk of ovarian
cancer”).
31
18. If Estrada herself wishes to purchase Baby Powder
whether or not she knows of those health risks, why would
the same not hold true for other consumers? And if other
consumers were to purchase Baby Powder whether or not
they were warned of the alleged health risks, how did
Johnson & Johnson earn unlawful profits by failing to
offer such warnings? Estrada’s two conclusory assertions
provide us not even a hint as to how we might answer these
basic questions.18
In sum, Estrada’s restitution claims are based on
nothing more than mere conjecture. She pleads no facts
18
And other questions come to mind. Estrada has observed
that consumers are already highly informed of the alleged
health risks associated with Baby Powder given the
numerous publicly available studies and publications that
she cites in her complaint. JA 54–67. Estrada’s complaint
refers to, inter alia, scientific studies from “as early as
1961,” JA 54, a 1982 New York Times article regarding
the alleged health risks of talcum powder, JA 67, and a
pamphlet allegedly distributed “to all ovarian cancer
patients at nearly every medical facility in the United
States.” JA 66. Wouldn’t such widespread knowledge
already have been factored into the current market price of
Baby Powder? And if so, how did Johnson & Johnson earn
unlawful profits by withholding information that the
market might have already taken account of?
32
upon which a factfinder could conclude that Johnson &
Johnson has been able to sell more Baby Powder than it
could have had it informed consumers of the alleged health
risks. We therefore conclude that Estrada lacks standing to
seek relief in the form of restitution.
V. INJUNCTIVE RELIEF
Finally, Estrada seeks injunctive relief in the form
of “corrective advertising” and “enjoining Defendants
from continuing the unlawful practices” of selling Baby
Powder without properly warning consumers of the
alleged health risks. JA 79. 19 In order to have standing to
19
Estrada also refers in passing to “declaratory” relief
three times in her complaint. JA 72, 79. All three
references to “declaratory” relief are made in connection
with her request for injunctive relief. JA 72 (“declaratory
and/or injunctive relief”); id. (same); JA 79 (“declaratory
and injunctive relief as permitted by law or equity”).
Moreover, her third reference to “declaratory” relief
appears to include both a reference to injunctive relief and
relief based in restitution. JA 79 (“Awarding declaratory
and injunctive relief as permitted by law or equity,
including enjoining Defendants . . . and directing
Defendants to identify . . . victims of their conduct and pay
them restitution and disgorgement.”). Because Estrada’s
references to “declaratory” relief appear to be a mere
rehashing of her requests for injunctive relief and
33
seek injunctive relief, Estrada must establish that she is
“‘likely to suffer future injury’ from the defendant’s
conduct.” McNair v. Synapse Group Inc., 672 F.3d 213,
223 (3d Cir. 2012) (quoting City of Los Angeles v. Lyons,
461 U.S. 95, 105 (1983)). Because Estrada makes clear in
this very lawsuit that she is well aware of health risks
associated with using Baby Powder, we readily conclude
that she is not likely to suffer future economic injury.
In McNair, we considered whether “former
customers” of a magazine company had standing to seek
injunctive relief. Id. at 215. The defendant-appellee in that
case, a magazine marketing company by the name of
Synapse Group Inc., had allegedly sold subscriptions in an
unlawfully deceptive way. 20 Because the plaintiffs were
former customers who were already aware of Synapse’s
advertising practices, we concluded that any future injury
restitution, we need not repeat our standing analyses as to
those forms of relief.
20
“The majority of Synapse’s magazine subscriptions are
offered under what is known as a ‘continuous service plan’
whereby a customer’s subscription does not expire unless
and until the customer opts to cancel it. To secure
subscribers to those plans, Synapse offers introductory
promotional offers under which customers can receive
magazine subscriptions for free or at greatly reduced
rates.” McNair, 672 F.3d at 216.
34
they might suffer as a result of the company’s advertising
practices was “wholly conjectural.” Id. at 225; see also id.
at n.13 (“If Appellants’ suggestion is that they may not be
able to help themselves when confronted with a really
good subscription offer, they have still not provided a
basis for standing. Pleading a lack of self-restraint may
elicit sympathy but it will not typically invoke the
jurisdiction of a federal court.”). The premise that former
customers could again be deceived by the very sort of
advertising practices over which they were already
pursuing equitable relief was a premise unmoored from
reality.
Estrada has sued Johnson & Johnson for failing to
warn her of certain health risks. To state the obvious, then,
she is presently aware of those risks. As with the former
customers in McNair, we wonder how Estrada could
possibly be deceived again into buying Baby Powder
without being aware of those same risks. She is simply not
at risk of suffering an economic “injury,” and we will not
give cognizance to this sort of “stop me before I buy
again” claim.
Perhaps sensing that McNair presents her with a real
challenge, Estrada would have us limit McNair to
instances when plaintiffs do not allege an intention to
make purchases in the future. Estrada Reply Br. 17–18.
Because Estrada desires to purchase Baby Powder in the
35
future, she contends that her case can be distinguished
from McNair. Id. We decline to so limit McNair.
To begin with, we noted in McNair that “[p]erhaps
[the former customers] may accept a Synapse offer in the
future.” McNair, 672 F.3d at 225. Given that recognition,
it would require a strained reading of the case to conclude
that the former customers’ failure to allege a desire to
subscribe in the future played a key role in our analysis.
Our holding in McNair was instead more focused on the
crucial fact that the former customers were already aware
of the allegedly deceptive business practices from which
they sought future protection. As we wrote in McNair, “the
law accords people the dignity of assuming that they act
rationally, in light of the information they possess.” Id.
That same rationale applies in the case at hand. The law
affords Estrada the dignity of assuming that she acts
rationally, and that she will not act in such a way that she
will again suffer the same alleged “injury.” We conclude
that Estrada does not have standing to seek injunctive
relief.
CONCLUSION
Estrada contends that other people have suffered
health complications from using Johnson & Johnson’s
Baby Powder. Regardless of whether that serious
allegation has merit, injuries suffered by others do not
permit us to conclude that Estrada has herself suffered an
injury in fact. The only injury that Estrada alleges is purely
36
economic in nature—that is, that had she known more
about Baby Powder, she would not have purchased it in
the first place. But Estrada’s wish to be reimbursed for a
functional product that she has already consumed without
incident does not itself constitute an economic injury
within the meaning of Article III.
Estrada fails to provide a non-conjectural basis for
concluding that she did not receive the benefit of her
bargain. Estrada similarly fails to show that she is at risk
of suffering an economic injury in the future, or that
Johnson and Johnson has sold more Baby Powder than it
otherwise could have. For these reasons, we conclude that
Estrada does not have Article III standing to seek any of
the three forms of relief requested in her complaint. The
judgment of the District Court will be affirmed.
37
FUENTES, Circuit Judge, dissenting.
Juries across the country have returned verdicts finding,
among other things, that Johnson & Johnson is liable to
consumers of Johnson’s Baby Powder for its propensity to
increase the risk of ovarian cancer in women. 1 This case is not
about that. Mona Estrada, a longtime consumer of Johnson’s
Baby Powder, makes no claim that she herself experienced a
higher risk of ovarian cancer due to her use of the product.
Instead, she alleges that Johnson & Johnson misrepresented
what it sold her: a product, safe for daily use,that absorbs
bodily moisture. She alleges that, had she known that the
product was not safe, she would not have bought the product.
The majority is thorough and reaches a conclusion of
law that, in the abstract, makes perfect sense: a plaintiff who
receives the benefit of her bargain cannot assert that she has
suffered an injury-in-fact to establish standing under Article
III. I write separately because the majority omits key terms
from the bargain struck between Estrada and Johnson &
Johnson to reach the conclusion that Estrada received the
benefit of her bargain. In my view, she did not. I would
conclude from Estrada’s pleadings that the safety of the
product—as a general proposition, not specifically as to
1
See, e.g., Tiffany Hsu, Johnson & Johnson Told to Pay $4.7
Billion in Baby Powder Lawsuit, N.Y. TIMES, July 12, 2018,
https://www.nytimes.com/2018/07/12/business/johnson-
johnson-talcum-powder.html; Tina Bellon, J&J hit with $21.7
million verdict in another talc asbestos cancer case, REUTERS,
May 23, 2018, https://www.reuters.com/article/us-johnson-
johnson-cancer-lawsuit/jj-hit-with-21-7-million-verdict-in-
another-talc-asbestos-cancer-case-idUSKCN1IO3HD.
1
Estrada herself—was an essential component of the benefit of
Estrada’s bargain. Because Estrada alleges that the safety of
the product was part of her bargain and that Johnson & Johnson
misrepresented this key element, I would hold that Estrada has
alleged injury-in-fact and standing under Article III. At this
stage of the proceedings, all Estrada must allege is an
“identifiable trifle” sufficient to establish injury-in-fact for
standing under Article III. 2 She has done that. Thus, I would
vacate the order of the District Court and remand this case for
further proceedings.
I.
According to Estrada’s pleadings, Johnson & Johnson
has encouraged women to dust themselves daily with
Johnson’s Baby Powder through labeling and advertising.
Estrada alleges that while the specific language of the label has
changed over time, its message has remained consistent: “that
the product is safe for use on women as well as babies.” 3
Historically, the label and advertising has encouraged women
to dust themselves with Johnson’s Baby Powder daily to mask
odors. Under a heading instructing customers when to use
Johnson’s Baby Powder specifically, the product says: “Use
anytime you want skin to feel soft, fresh and comfortable. For
baby, use after every bath and diaper change.” 4
2
Bowman v. Wilson, 672 F.3d 1145, 1151 (3d Cir. 1982)
(quoting United States v. Students Challenging Regulatory
Agency Procedures (SCRAP), 412 U.S. 669, 686–90 & 689
n.14 (1973)).
3
AA050.
4
AA053.
2
Johnson & Johnson “seek[s] to convey an image as a
safe and trusted family brand.” 5 It operates a website
specifically pronouncing “Our Safety & Care Commitment,”
in which it proclaims that “safety is our legacy” and “[y]ou
have our commitment that every beauty and baby care product
from the Johnson & Johnson Family of Consumer Companies
is safe and effective when used as directed.” 6 On its website
advertising Johnson’s Baby Powder, Johnson & Johnson states
that the product is “[c]linically proven to be safe, gentle and
mild.” 7 None of the product’s labeling or advertising advises
of an increased risk of ovarian cancer associated with use of
Johnson’s Baby Powder. 8
The majority does not dispute that Estrada alleges that
Johnson & Johnson held the product out as safe. I agree. The
majority states that “Estrada’s references to Baby Powder
being unsafe as to others are not relevant to determining
whether Estrada has standing herself.” 9
I depart from the majority’s reasoning that Johnson’s
Baby Powder must be unsafe “as to [Estrada]” in order for
safety to be part of the benefit of Estrada’s bargain. 10 In
support of this proposition, it cites Lujan v. Defenders of
Wildlife, which holds that “the ‘injury in fact’ test requires
more than an injury to a cognizable interest. It requires that the
5
Id.
6
Id. (alteration in original).
7
Id.
8
Id.
9
Majority Op. at 26 (emphasis in original).
10
Id. (emphasis omitted).
3
party seeking review be himself among the injured.” 11 The
majority’s application of Lujan to exclude “safety as to others”
from Estrada’s bargain misapplies Lujan and misapprehends
the nature of Estrada’s injury. Estrada’s pleading makes it
clear that Estrada does not allege that she is among those who
have contracted or who have been exposed to an increased risk
of contracting ovarian cancer due to her use of Johnson’s Baby
Powder. Estrada alleges that her injury was the economic harm
caused by purchasing a product due to Johnson & Johnson’s
misrepresentations that the product was safe. She is,
undisputedly, among the injured within the meaning of Lujan
when it comes to the actual basis of her alleged injury-in-fact.
I believe the Ninth Circuit succinctly stated the requirements
of Article III as applied to economic harm when it wrote:
“[W]hen, as here, ‘Plaintiffs contend that class members paid
more for [a product] than they otherwise would have paid, or
bought it when they otherwise would not have done so,’ they
have suffered an Article III injury in fact.” 12
II.
The majority contends that Estrada received the benefit
of her bargain because it was safe “as to her.” 13 This
improperly confuses the benefit of the bargain relating to
Estrada’s alleged economic harm with the non-economic
11
Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992).
12
Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1104 n.3 (9th Cir.
2013) (quoting Mazza v. Am. Honda Motor Co., 666 F.3d 581,
595 (9th Cir. 2012)) (alteration in original).
13
Majority Op. at 26 (emphasis omitted).
4
harm—the actual danger allegedly posed by Johnson’s Baby
Powder—which is not at issue in this case.
What makes a product safe? If I buy a car of a make
and model that reportedly explodes when driven, it seems
obvious that the car is not safe. But what if I know that the
specific car that I have purchased, and any subsequent cars of
that make and model that I purchase, will never explode while
I am in the car? The car or cars that I purchase contain the
same structural defect that makes those cars explode but I,
through the powers granted to me by legal fiction, know they
will never explode while I am in the car. Under the majority’s
reasoning, this means that the car is safe as to me and,
therefore, I have conceded that it is safe in any legal action I
take against the manufacturer for selling a car with an evident
inclination to explode. After all, I am totally protected from
the risk posed by the defect. But no one would describe the car
as safe.
When we talk about a product being “safe,” and when
manufacturers and vendors hold a product out as “safe,” we are
talking about two related but distinct concepts. The first is
exactly what the majority describes: safety as to the immediate
purchaser. This is a common conception of safety, the
consumer who considers the product and asks: “Is this going to
hurt and/or kill me?” This form of safety undergirds the claims
that Johnson & Johnson misrepresented the safety of its
product brought by plaintiffs who allege that they contracted
or were exposed to an increased risk of contracting ovarian
cancer. It is not at issue here.
But this is not the only form of safety. The second form
of safety—the safety that was part of Estrada’s bargain—
5
concerns the safety of a product generally, or its safety as to
others. The parent who buys a toy for a child considers the
safety of the toy not necessarily as to him or her but as to the
child. A man might buy Johnson’s Baby Powder that will be
used by a woman with whom he cohabitates, and might very
well consider the safety of that product as to the other person,
not to himself. 14 In other words, understanding this form of
safety relies in part on recognizing that the purchaser of a
product may not be the consumer of a product. The connection
need not be that direct, however. A product is advertised as
safe for the same reason it is advertised as effective: to induce
people to purchase it. A person may rely on various
representations made by a manufacturer or vendor when
determining whether to make a purchase.
Kwikset Corp. v. Superior Court, 15 a case decided by
the Supreme Court of California, adjudicates standing in light
of the very statute under which Estrada brings her claims. It is
14
The majority conflates safety as a representation with safety
as insulation from risk to Estrada specifically, which perhaps
is why it notes skeptically that men could join Estrada’s
proposed class. I leave aside that class certification is well
beyond the scope of subject-matter jurisdiction. I also leave
aside that the putative class action elements of this case are
entirely separate from whether Estrada herself has standing to
pursue her claim. Here, however, the majority again seems to
forget that Estrada does not allege that she was exposed to the
danger allegedly posed by Johnson’s Baby Powder. She
alleges that Johnson & Johnson’s representations of safety
were among the terms under which she purchased the product.
This valuation of safety is not gender-exclusive.
15
246 P.3d 877 (Cal. 2011).
6
worth noting, though hardly dispositive, that the standing
requirements of this law are “substantially narrower than
federal standing under article III, section 2 of the United States
Constitution.” 16 The majority dismisses Estrada’s citation of
this case because it concerns plaintiffs who did not receive the
benefit of their bargain (where, purportedly, Estrada has), 17 but
Kwikset is relevant because it illustrates why Estrada did not
receive the benefit of her bargain. In Kwikset, plaintiffs
purchased locksets labeled “Made in U.S.A.” that contained
parts manufactured abroad. The defendant made an argument
that is identical to the majority’s reasoning here: “[C]onsumers
who receive a fully functioning product have received the
benefit of their bargain, even if the product label contains
misrepresentations that may have been relied upon by a
particular class of consumers.” 18
Perhaps illustrating the fundamental simplicity of the
case before us, the Kwikset court disagreed, stating:
Plaintiffs selected Kwikset’s
locksets to purchase in part
because they were “Made in
U.S.A.”; they would not have
purchased them otherwise; and, it
may be inferred, they value what
they actually received less than
either the money they parted with
or working locksets that actually
were made in the United States.
They bargained for locksets that
16
Id. at 886.
17
Majority Op. at 28 n.14.
18
Kwikset, 246 P.3d at 892.
7
were made in the United States;
they got ones that were not. 19
The Kwikset court further reasons:
The observant Jew who purchases
food represented to be, but not in
fact, kosher; the Muslim who
purchases food represented to be,
but not in fact, halal; the parent
who purchases food for his or her
child represented to be, but not in
fact, organic, has in each instance
not received the benefit of his or
her bargain. 20
Estrada has alleged that there was a misrepresentation
made by Johnson & Johnson as to the safety of Johnson’s Baby
Powder and, moreover, that the misrepresentation was material
to her decision to purchase Johnson’s Baby Powder.
At least this stage of the proceedings, where we only
endeavor to determine whether a plaintiff has standing to
pursue her claim, I see no reason we should devote ourselves
to understanding why a plaintiff values what she values. As
Kwikset notes:
This economic harm—the loss of
real dollars from a consumer's
pocket—is the same whether or
not a court might objectively view
the products as functionally
equivalent. A counterfeit Rolex
19
Id.
20
Id.
8
might be proven to tell the time as
accurately as a genuine Rolex and
in other ways be functionally
equivalent, but we do not doubt the
consumer (as well as the company
that was deprived of a sale) has
been economically harmed by the
substitution in a manner sufficient
to create standing to sue. Two
wines might to almost any palate
taste indistinguishable—but to
serious oenophiles, the difference
between one year and the next,
between grapes from one valley
and another nearby, might be
sufficient to carry with it real
economic differences in how much
they would pay. Nonkosher meat
might taste and in every respect be
nutritionally identical to kosher
meat, but to an observant Jew who
keeps kosher, the former would be
worthless. 21
I am persuaded by this rationale. The parent who
purchases “organic” food that is not organic need not justify
her decision to purchase food labeled “organic.” The Kwikset
plaintiffs were not obliged to explain why they cared if the
locksets they purchased were manufactured in the United
States. It was sufficient that the misrepresentation of the
manufacturer deprived them of the benefit of their bargain such
21
Id. at 890.
9
that they would not have purchased the product had the product
been labeled accurately. As courts construing Kwikset have
stated: “[A] consumer’s subjective willingness to pay more for
the product than he or she would have been willing to pay in
the absence of the misrepresentation is itself a form of
economic injury ‘whether or not a court might objectively view
the products as functionally equivalent.’” 22 That is the same
scenario presented before us today.
Estrada effectively alleges that she values “safety” as a
label, akin to “organic” or “Made in U.S.A.” When contrasted
with the real danger allegedly posed by Johnson’s Baby
Powder, this misrepresentation might seem petty. However,
that does not make it immaterial to Estrada’s bargain as she
alleges it.
III.
The majority invokes two of our recent precedents to
characterize Estrada’s alleged injury as some attenuated,
unknowable entity. The majority’s invocation of Finkelman v.
National Football League is misplaced. 23 Finkelman lacked
standing because the basis of his alleged injury—the
purportedly inflated price of Super Bowl tickets—was only
speculatively affected by the NFL’s conduct. 24 Finkelman
bought his tickets at the inflated price, but did not at that point
allege a set of facts under which the NFL’s conduct caused the
22
Hansen v. Newegg.com Americas, Inc., 236 Cal. Rep. 3d 61,
72 (Cal. Ct. App. 2018) (quoting Kwikset, 246 P.3d at 890).
23
See Majority Op. at 14–18.
24
Finkelman v. Nat’l Football League, 810 F.3d 187, 200 (3d
Cir. 2016) (hereafter “Finkelman I”).
10
price inflation. 25 Finkelman did not allege that he would not
have bought the tickets at the inflated price or, more applicably,
that he would not have bought the tickets had he known that
the NFL withheld tickets in such a way that the price was
inflated. Instead, Finkelman needed to establish with some
particularity the chain of events that led to his economic injury
because the injury itself—what money was actually lost—
could not be established without that chain. The majority
misapplies Cottrell v. Alcon Laboratories similarly, and to the
same effect. In Cottrell, the plaintiffs did not dispute that they
received the benefit of their bargain as to the portion of
medicine that they were able to use from the dispensers at
issue. 26
The majority correctly notes that we did not analyze the
economic theories presented in Finkelman and Cottrell
“because we wished to sound pedantic.” 27 We are obliged by
Article III to ensure that plaintiffs allege injury in fact, not
conjecture. In Finkelman, we needed to ascertain that a
plaintiff who received the benefit of his bargain—tickets to the
Super Bowl—was in fact injured by being compelled to pay
more for his tickets because of the improper conduct of the
seller. We needed to determine whether the pleadings
25
See id.; cf. Finkelman v. Nat’l Football League, 877 F.3d
504, 512 (3d Cir. 2017) (holding that Finkelman’s amended
complaint, which alleged “a casual chain justifying why the
NFL’s withholding set into motion a series of events that
ultimately raised prices on the secondary market,” alleged
Article III standing) (hereafter “Finkelman II”).
26
See Cottrell v. Alcon Labs., 874 F.3d 154, 169–70 (3d Cir.
2017).
27
Majority Op. at 20.
11
established that said compulsion occurred. In Cottrell, we
needed to ascertain an injury (and the measurability of that
injury) where the plaintiffs undoubtedly received the benefit of
their bargain as to some portion of the medicine that they
consumed. More complex theories of injury may be necessary
where a plaintiff gets the benefit of his or her bargain in some
of the product, or where the injury might be obscured by layers
of market forces.
That is not the case here. Estrada alleges that she paid
for a product based, in part, on Johnson & Johnson’s
representation of its safety. That representation was part of the
benefit of her bargain. Because that representation was false,
Estrada did not receive the benefit of her bargain.
Unlike Finkelman, Estrada need not allege a chain of
events to show that she paid a price she would not have
otherwise paid for Johnson’s Baby Powder. In my view, it
suffices that she alleges that she would not have purchased the
product. The price increase in her bargain with Johnson &
Johnson caused by the company’s alleged misrepresentation as
to safety is the total sum she paid for the product.
Unlike the Cottrell plaintiffs, Estrada does not concede
that she received the benefit of her bargain as to some of her
purchase—that some of the product was safe as represented by
Johnson & Johnson. 28 Estrada alleges that the whole product
fails to satisfy the representation of safety made by Johnson &
Johnson. If Johnson & Johnson or Estrada can, by expert
28
Additionally, for this reason, the majority’s assertion that
Estrada’s theory of standing would have entitled the Cottrell
plaintiffs to sue for the contents of the entire bottle is wrong.
12
testimony, demonstrate that only a certain portion of Johnson’s
Baby Powder is unsafe, that is certainly a question of damages,
not of injury-in-fact.
Moreover, the majority’s logic is incompatible with
Cottrell. After all, the Cottrell plaintiffs used all the medicine.
Their bargain could be circumscribed just as the majority edits
the terms of Estrada’s bargain: the Cottrell plaintiffs bargained
for the benefits of the medicine, not medicine delivered in a
minimum effective dose so as to maximize the medicine’s
utility. But we wisely recognized in Cottrell that the benefit of
the bargain encompasses the whole bargain, and that the
bargain should not be redefined to neatly encompass only what
plaintiffs actually received, instead of what they were
promised.
IV.
The majority further holds that Estrada has failed to
plead facts sufficient to establish standing to pursue restitution
and to pursue injunctive relief. I disagree, largely for reasons
already articulated.
With respect to restitution, the majority concludes that
Estrada only makes conclusory allegations that Johnson &
Johnson sold Johnson’s Baby Powder for more money than it
would have made had it disclosed the alleged risk of ovarian
cancer. In this case, I would rely on the precedent of this Court
that “federal courts typically credit allegations of injury that
involve no more than application of basic economic logic.” 29
29
Finkelman, 810 F.3d at 201 (internal quotation marks and
citation omitted).
13
Dealing only with the allegations of the pleadings, it seems
sufficiently elementary that a product held out as safe will
command a higher price than a product held out as markedly
increasing a woman’s risk of developing ovarian cancer. As
such, I believe Estrada has alleged that Johnson & Johnson
profited from its allegedly unlawful misrepresentation.
With respect to injunctive relief, I do not read Estrada’s
allegation as in fundamental tension with McNair v. Synapse
Group Inc. 30 I read Estrada’s allegations about desiring to
purchase the product as inextricable from the bargain she
struck with Johnson & Johnson. While the majority reads her
pleadings to state that Estrada is willing to purchase the
product as-is, given her allegations it makes more sense to
understand that Estrada’s pleaded desire to purchase baby
powder in the future is contingent on Johnson & Johnson
offering a product that meets the terms of her bargain. She is
only unlikely to suffer future economic injury if we presume
that Johnson & Johnson has lied and will continue to lie in its
labeling, or that Estrada will assume that any label offered by
Johnson & Johnson is untruthful.
Moreover, I believe plaintiffs alleging harm caused by
defendants’ misrepresentations are entitled to seek injunctive
relief against those misrepresentations, in part because that is
explicitly permitted under California’s Unfair Competition
Law under which Estrada sues. 31 A plaintiff who is
sufficiently aware of misrepresentations and who alleges
injury-in-fact under a theory of economic harm, or any theory
of harm, is unlikely to continue purchasing that product as
30
672 F.3d 213 (3d Cir. 2012).
31
See Cal. Bus. & Prof. Code § 17204.
14
offered beforehand. If our reasoning compels us to interpret
Article III to effectively strike down a provision of state law,
and the law of a state not within this Circuit, I believe we have
erred.
V.
Article III standing is the minimum hurdle that a
plaintiff must meet to bring her claim in federal court. To
conclude here that Estrada has pleaded standing, we need not
and, in fact, cannot determine whether she has stated a claim
sufficiently to withstand a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6). We cannot address whether
this claim as pleaded establishes a sufficient basis for class
certification under Federal Rule of Civil Procedure 23. As
previously stated, our only duty here is to determine whether
Estrada alleged an “identifiable trifle” sufficient to establish
injury-in-fact for standing under Article III. 32 Because Mona
Estrada has met that bare minimum requirement, I respectfully
dissent. I would vacate the District Court’s order and remand
for further proceedings.
32
Bowman, 672 F.3d at 1151 (citation omitted).
15