Simply final week we blogged about our disappointment over the Third Circuit’s resurrection of a “advantage of the cut price principle” 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 might 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 in opposition to defendant, the producer of coal tar shampoo merchandise, alleging its merchandise have been contaminated with benzene. Identical to in Huertas, plaintiff alleged that she suffered an financial damage as a result of the presence of benzene within the shampoo made the product “value much less” than what she paid for it. Beneath Huertas, the district court docket was obligated to conclude that was a cognizable damage. Id. at *7. However to confer standing, the damage 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 grievance, 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 through 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 identical lot because the recalled merchandise that plaintiff had bought. Plaintiff was capable of show a connection between his merchandise and the alleged hurt.
However the allegations in Pineda have been “extremely imprecise.” Id. at *13. Plaintiff didn’t allege which merchandise have been examined. She didn’t allege when the examined have been merchandise have been bought which “might give rise to an inexpensive inference that Plaintiff’s merchandise have been equally contaminated.” Id. at *14. No lot numbers have been talked about, and no allegations gave the court docket any motive to deduce that the contamination was “so widespread” as to moderately embody plaintiff’s merchandise. Main the court docket to search 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 instantly impacts who has standing to deliver such a financial loss contamination-based class motion. And whereas we would favor no “advantage of the cut price” standing, maintaining it narrowly centered must do for now.