Eidelman v. Sun Prods. Corp.

SHAYA EIDELMAN,on behalf of himself and others similarly situated, Plaintiff, v. THE SUN PRODUCTS CORPORATION & COSTCO WHOLESALE CORPORATION, Defendants.

No. 16-cv-3914 (NSR)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 30, 2021

SEALED - Unredacted Version

OPINION & ORDER

NELSON S. ROMÁN, United States District Judge

Plaintiff Shaya Eidelman brings this proposed class action against the Sun Products Corporation ("Sun Products") and Costco Wholesale Corporation ("Costco") (together, "Defendants"), alleging violations of New York's General Business Law ("GBL") §§ 349 and 350 and unjust enrichment. Presently before the Court is Defendants' motion for summary judgment (ECF No. 82) and Plaintiff's cross-motion for partial summary judgment (ECF No. 83). For the following reasons, Defendants' motion for summary judgment is granted and Plaintiff's cross-motion for partial summary judgment is denied.

BACKGROUND

The following facts are derived from the parties' respective Local Rule 56.1 statements and the record and are undisputed unless otherwise indicated.

Defendant Sun Products manufactures laundry products under the brand name all&reg. (Defs.' Local Rule 56.1 Statement ("Defs. 56.1") ¶ 1 (ECF No. 91); Pl's Response to Defs' 56.1 ("Pl's 56.1 Resp.") ¶ 1 (ECF No. 85).) Sun Products manufactures laundry detergents that are free of dyes and perfumes ("free and clear" detergents), which the Court will refer to as "all® free clear" detergents. (Defs. 56.1 ¶ 3; Pl's 56.1 Resp. ¶ 3). The parties disagree as to whether "all® free clear" is a brand or a product line within the "all®" brand. (Defs. 56.1 ¶ 3; Pl's 56.1 Resp. ¶ 3). "all® free clear" detergents come in white bottles and their labels include the "all® with stainlifters" logo and a graphic stating "free" of perfumes and "clear" of dyes (the "all® free clear" graphic). (Defs. 56.1 ¶ 4; Pl's 56.1 Resp. ¶ 4).

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Exhibit A- the "all® free clear" graphic

Defendant Costco is a membership warehouse club. (Defs. 56.1 ¶ 5; Pl's 56.1 Resp. ¶ 5). In late 2014, Costco began selling two all® PLUS+ liquid laundry detergents: (1) all® stainlifter PLUS+ with fragrance in a blue bottle ("Blue Bottle") and (2) all® free clear PLUS+, which is 100% free of dyes and perfumes, in a white bottle ("White Bottle"). (Defs. 56.1 ¶ 12-14; Pl's 56.1 Resp. ¶ 12-14).

The Blue Bottle and White Bottle appear to be the same size and intended to be used for 158 loads of laundry. (Defs. 56.1 ¶ 17-18; Pl's 56.1 Resp. ¶ 17-18).¹ The White Bottle contains the statement "from the #1 Detergent Brand Recommended by Dermatologists for Sensitive Skin" (the "Statement"). (Defs. 56.1 ¶ 2; Pl's 56.1 Resp. ¶ 22; Topper Ex. 1.) The Statement is not on the Blue Bottle. (Defs. 56.1 ¶ 2; Pl's 56.1 Resp. ¶ 22.)

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Exhibit B- the "Statement"

On March 8, 2016, Plaintiff, a Costco member, purchased a single White Bottle product (the "Product") from a Costco warehouse on March 8, 2016 for $15.79. (Pl's Local Rule 56.1 Statement ("Pl's 56.1") ¶ 1-2 (ECF No. 104); Defs' Response to Pl's 56.1 ("Defs' 56.1 Resp.") ¶ 1-2 (ECF No. 99)). Plaintiff argues that the Statement on the White Bottle product was misleading in that it caused him to believe the White Bottle was the #1 product recommended by dermatologists for sensitive skin, and not merely from the #1 brand recommended by dermatologists for sensitive skin. Plaintiff argues that based on the Statement, he purchased the White Bottle over other, less expensive options.

LEGAL STANDARD

Summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Thus, summary judgment will not lie where there is a "dispute[] over facts that might affect the outcome of the suit under the governing law" and "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "The Supreme Court has made clear that 'at the summary judgment stage the judge's function is not [] to weigh the evidence and determine the truth of thematter[.]'" Westinghouse Elec. Corp. v. N.Y.C. Trans. Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y. 1990) (quoting Anderson, 477 U.S. at 249). Rather, the relevant inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. In deciding a motion for summary judgment, courts must "constru[e] the evidence in the light most favorable to the non-moving party and draw[] all reasonable inferences in its favor." Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal citation and quotations omitted).

The moving party bears the initial burden of pointing to evidence in the record "which it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may also support an assertion that there is no genuine dispute by showing "that [the] adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(B). If the moving party fulfills its preliminary burden, the onus shifts to the non-moving party to identify "specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248 (internal citation and quotation marks omitted).

The party asserting that a material fact is genuinely disputed must support his or her assertion by "citing to particular parts of materials in the record" or "showing that the materials cited do not establish the absence . . . of a genuine dispute." Fed. R. Civ. P. 56(c)(1). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999). In addition, "[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for [that party]." Anderson, 477 U.S. at 252.

DISCUSSION

Defendants move for summary judgment on the sole ground that Plaintiff fails to show an injury. (ECF No. 92 at 1-2.) Plaintiff cross-moves for partial summary judgment asking the Court to find (1) that the Statement is consumer-oriented under GBL §§ 349 and 350, (2) that the Statement constitutes a deceptive business practice under GBL §§ 349 and 350, (3) that Plaintiff was individually injured, (4) that Plaintiff is entitled to injunctive relief pursuant to his individual GBL claims, and (5) that statutory damages should be assessed in the statutory amounts of $50 and $500 under GBL §§ 349 and 350 respectively. (ECF No. 84.)

I. GBL §§ 349 and 350

Section 349 prohibits "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state[.]" N.Y. Gen. Bus. Law § 349(a). A plaintiff asserting a cause of action under Section 349 "must [demonstrate] three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act." Rephen v. Gen. Motors Corp., 2016 WL 4051869, at *4 (S.D.N.Y. July 26, 2016) (internal quotation marks and citations omitted). The deceptive act may be a representation or omission. Braynina v. TJX Companies, Inc., 2016 WL 5374134, at *4 (S.D.N.Y. Sept 26, 2016). The standard for recovery under New York General Business Law § 350 is identical to that of § 349, with the caveat that it is specific to false advertising. Id., at *4 ("The standard for recovery under . . . § 350, while specific to false advertising, is otherwise identical to [§] 349") (citing Goshen v. Mut. Life Ins. Co. of N. Y., 98 N.Y.2d 314, 324 n. 1 (2002)); see N.Y. Gen. Bus. Law § 350 (noting Section 350 prohibits "[f]alse advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state[.]"). Given this overlap, "courts have found that thescope of § 350 is as broad as that of § 349 . . . and that its essential elements are the same." Braynina, 2016 WL 5374134, at *4 (citing Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015)).

A. Injury

While Plaintiff is not required to prove individual reliance on Defendants' misleading statements to sustain a claim under GBL §§ 349 and 350, Plaintiff must prove that Defendants' deceptive act caused some actual injury. Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 26, 647 N.E.2d 741, 745 (1995); see also Rodriguez v. It's Just Lunch, Int'l, No. 07-CV-9227 (SHS) (KNF), 2010 WL 685009, at *9 (S.D.N.Y. Feb. 23, 2010) ("A plaintiff seeking redress through NYGL § 349 must show that the defendant engaged in a material deceptive act or practice that cause actual, although not necessarily pecuniary, harm." (internal quotation marks and citations omitted)); McCrobie v. Palisades Acquisition XVI, LLC, 359 F. Supp. 3d 239, 256 (W.D.N.Y. 2019) (finding that abusive debt collection is a "harm in itself," especially when it places "a consumer in immediate fear that he or she may be about to lose his home [or] her income").

1. Price Premium

Defendants argue that the evidence on the record fails to support Plaintiff's claim that he paid a price premium for the Product. The Court agrees.

"Deception alone cannot constitute 'actual injury' under GBL § 349." Marshall v. Hyundai Motor Am., 334 F.R.D. 36, 59 (S.D.N.Y. 2019). Courts in this district "have routinely held that pecuniary loss arising from the purchase of the defendant's product—e.g., the loss of the purchase price itself—does not constitute an 'actual injury' for the purposes...