In Re: Evenflo Company, Inc. v. ( 2022 )

United States Court of Appeals
For the First Circuit
No. 22-1133
IN RE: EVENFLO COMPANY, INC., MARKETING, SALES PRACTICES AND
PRODUCTS LIABILITY LITIGATION,
MIKE XAVIER; LINDSEY BROWN; MARCELLA REYNOLDS; MONA-ALICIA
SANCHEZ; KEITH EPPERSON; CASEY HASH; JESSICA GREENSCHNER; LAUREN
MAHLER; EDITH BRODEUR; DAVID A. SCHNITZER; ASHLEY MILLER;
DANIELLE SARRATORI; HAILEY LECHNER; DESINAE WILLIAMS; ELISE
HOWLAND; THERESA HOLLIDAY; JOSEPH WILDER; AMY SAPEIKA; NAJAH
ROSE; SUDHAKAR RAMASAMY; TARNISHA ALSTON; EMILY NAUGHTON; TALISE
ALEXIE; HEATHER HAMPTON; LINDSEY REED; KAREN SANCHEZ; BECKY
BROWN; DEBORA DE SOUZA CORREA TALUTTO; KARYN ALY; JANETTE SMARR;
KARI FORHAN; JOSHUA KUKOWSKI; ANNA GATHINGS; KRISTIN ATWELL;
PENNY BIEGELEISEN; CARLA MATTHEWS; JILLI HIRIAMS; NATALIE DAVIS;
CATHY MALONE; JEFFREY LINDSEY; LINDA MITCHELL; RACHEL HUBER;
CASSANDRA HONAKER,
Plaintiffs, Appellants,
JANELLE WOODSON; DANA BERKLEY; JESSICA BLOSWICK; COLLEEN
CODERRE; GRETA ANDERSON; KRISTEN BRINKERHOFF; LINDA FEINFELD;
ANDREW GLADSTONE; GEORGETTE GLADSTONE; ELIZABETH GRANILLO; JANET
JUANICH; TERESA MUGA; ASHLEY PERRY; ANGELICA RUBY,
Plaintiffs,
v.
EVENFLO COMPANY, INC.,
Defendant, Appellee,
GOODBABY INTERNATIONAL HOLDINGS LIMITED,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Lynch and Selya, Circuit Judges,
and McElroy,* District Judge.
Jonathan D. Selbin, with whom Lieff Cabraser Heimann &
Bernstein LLP, Steve W. Berman, Hagens Berman Sobol Shapiro LLP,
Martha A. Geer, and Milberg Coleman Bryson Phillips Grossman, PLLC
were on brief, for appellants.
Barbara A. Smith, with whom Dan H. Ball, Timothy J. Hasken,
K. Lee Marshall, and Bryan Cave Leighton Paisner LLP were on brief,
for appellee.
Philip S. Goldberg, Mark A. Behrens, Andrew J. Trask, and
Shook Hardy & Bacon L.L.P. on brief for Juvenile Products
Manufacturers Association, Chamber of Commerce of the United
States of America, National Association of Manufacturers, and
National Retail Federation, amici curiae.
November 23, 2022
* Of the District of Rhode Island, sitting by designation.
LYNCH, Circuit Judge. The district court dismissed the
plaintiffs/appellants' operative complaint ("complaint") in this
putative class action for lack of Article III standing. See In re
Evenflo Co. Mktg., Sales Pracs. & Prods. Liab. Litig., No. 20-md-
02938, 2022 WL 252331, at *1, *5-6 (D. Mass. Jan. 27, 2022). The
complaint alleges that the defendant, Evenflo Company, Inc.
("Evenflo"), made several misrepresentations about the safety and
testing of its children's Big Kid car booster seat and that the
plaintiffs bought the seat relying on those misrepresentations for
use by their children and grandchildren (collectively,
"children"). The complaint alleges that, but for Evenflo's
misrepresentations, the plaintiffs would not have purchased the
seat, would have paid less for it, and/or would have bought a safer
alternative. We refer to these three harms as "overpayment." The
complaint alleges that Evenflo's misrepresentations caused the
plaintiffs to spend money that they otherwise would not have spent.
It does not allege that the plaintiffs' children were hurt while
using the seat or that the product otherwise failed to perform.
The complaint raises a variety of state law claims and requests
monetary, declaratory, and injunctive relief.
We hold that the plaintiffs' pleadings plausibly
demonstrate their standing to seek monetary relief. We also hold
that the plaintiffs lack standing to seek declaratory and
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injunctive relief. We affirm in part, reverse in part, and remand
for further proceedings.
I.
A.
We describe the facts as they appear in the plaintiffs'
complaint. Hochendoner v. Genzyme Corp., 823 F.3d 724, 728 (1st
Cir. 2016).
The complaint asserts fifty-eight state law counts,
including claims for fraudulent concealment, unjust enrichment,
negligent misrepresentation, violations of various state consumer
protection statutes, and breaches of implied warranties of
merchantability under several other state statutes. The
plaintiffs seek to certify a nationwide class of "[a]ll persons in
the United States . . . who purchased an Evenflo 'Big Kid' booster
seat between 2008 and the [complaint's filing]," as well as
subclasses for each state, the District of Columbia, and Puerto
Rico, and request monetary, injunctive, and declaratory relief.
The complaint alleges that "the market for children's
car safety seats is generally grouped around . . . three basic
designs that track, sequentially, with children's growing weights
and heights: rear-facing seats, forward-facing seats with
harnesses, and belt-positioning booster seats." Evenflo
manufactures and sells all three types of seats. The plaintiffs'
allegations concern the Big Kid booster seat, a model introduced
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in the early 2000s and said to offer similar features to a booster
seat sold by one of Evenflo's leading competitors but intended to
sell for approximately $10 less.
The complaint focuses on two misrepresentations Evenflo
allegedly made about the Big Kid on its website and packaging, in
marketing materials, and in its product descriptions at major
retailers between 2008 and 2020.
First, Evenflo represented the Big Kid as safe for
children as small as thirty pounds. The complaint alleges that
Evenflo was aware "[a]s early as 1992 . . . that booster seats
were not safe for children under 40 pounds," based on a National
Highway Traffic Safety Administration ("NHTSA") "flyer that was
[then] pending approval." That flyer stated that a "toddler over
one year of age, weighing 20 to 40 pounds, is not big enough for
a booster." Further, "since the early 2000s, the [American Academy
of Pediatrics ("AAP")] has advised that children who weigh 40
pounds or less . . . are best protected in a seat with its own
internal harness." In 2011, both NHTSA and the AAP updated their
guidances to reflect "that parents should keep their children in
rear-facing child safety seats for as long as possible before
transitioning them to forward-facing harnessed seats, and that
switching children to booster seats [from forward-facing harnessed
seats] at 40 pounds was no longer recommended." In 2012,
"Evenflo's top booster seat engineer" delivered an internal
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presentation that Evenflo should "modify[] the [Big Kid's] weight
rating to 40 [pounds]" in order to "discourage early transitions
to booster seats," which place younger children at an "increased
risk of injury." A senior marketing director "vetoed" this weight
recommendation; the same marketing executive also rejected another
proposal to modify the weight limit later that year.
Second, the complaint alleges that Evenflo
misrepresented that the Big Kid had been "side impact tested."
Evenflo also stitched a "side impact tested" label onto the seats.
Evenflo described its side impact testing on its website as meeting
or exceeding federal standards and "simulat[ing] the government
side impact tests conducted for automobiles."
The plaintiffs describe this side impact testing claim
as "misleading at best." Between 2008 and 2020, NHTSA did not
require or set a standard for side impact testing of booster seats.
See 49 C.F.R. § 571.213 (setting requirements for child seats).
The complaint alleges that NHTSA's side impact testing for vehicles
incorporates two different tests, assessing the damage done to
crash test dummies after (1) crashing "a 3,015 pound moving
barrier . . . at 38.5 miles per hour into a standing vehicle" and
(2) pulling "a vehicle angled at 75 degrees . . . sideways at 20
miles per hour into a 25 cm diameter pole at the driver's seating
location." Evenflo's test was "performed by placing a product on
a bench (resembling a car seat), moving that bench at 20 miles per
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hour, then suddenly decelerating it." Evenflo considered a booster
seat to have failed this test only if "(1) . . . a child-sized
dummy escape[d] its restraint entirely, . . . or (2) the booster
seat itself [broke] into pieces." An Evenflo technician "has
stated that, in 13 years, he did not once perform a 'failed' side-
impact test," and an Evenflo engineer "admitted under oath that,
when real children move in [ways displayed by crash test dummies
in tests considered successful by Evenflo], they are at risk for
injurious head contact."
B.
The plaintiff Evenflo customers brought a number of
suits against the company related to the Big Kid's marketing and
safety in various federal district courts in early 2020. The
Judicial Panel on Multidistrict Litigation centralized the actions
and then transferred them to the District of Massachusetts in June
2020.
On October 20, 2020, the plaintiffs filed a consolidated
amended class action complaint. This operative complaint names
forty-three plaintiffs from twenty-eight states who purchased Big
Kids for their children between 2010 and 2020. The complaint
alleges that Evenflo's representations that the Big Kid was side
impact tested and safe for children as small as thirty pounds were
false or misleading. Three of the plaintiffs allegedly were
involved in car accidents after purchasing the Big Kid, but none
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seek recovery for any physical injuries, if there were any, to
their children. Although the exact language varies over the course
of the complaint, the complaint typically alleges that "[h]ad [the
plaintiffs] known about the defective nature of Evenflo's Big Kid
booster seat[], [they] would not have purchased the seat, would
have paid less for it, or instead would have purchased one of many
safer available alternatives."
On November 20, 2020, Evenflo moved to dismiss the
complaint with prejudice. Evenflo argued that the plaintiffs
lacked standing because they had not been injured by Evenflo's
conduct, that the complaint failed to state a claim under Federal
Rule of Civil Procedure 12(b)(6), and that the plaintiffs had not
pleaded their fraud claims with the particularity required by Rule
9(b).
The district court concluded that the plaintiffs lacked
standing and granted Evenflo's motion on January 27, 2022. See In
re Evenflo, 2022 WL 252331, at *1, *5-6. The court reasoned that
the plaintiffs had failed to establish any economic injury
sufficient to pursue monetary relief because (1) the complaint did
not allege that the seats failed to perform -- such that the
plaintiffs had necessarily received the benefit of the bargain in
purchasing them -- and (2) the plaintiffs had not plausibly shown
that the seats were worth less than what they had paid for them or
estimated their true value. See id. at *3-5. The court also
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concluded that the complaint did not allege any likelihood of
future injury sufficient to create standing to pursue injunctive
relief. See id. at *5-6. The court did not address Evenflo's
other arguments for dismissal, and it did not specify whether the
dismissal was to operate with or without prejudice. See id. at
*1, *6.
The plaintiffs timely appealed.
II.
Article III of the Constitution limits "[t]he judicial
Power" to "Cases" and "Controversies." U.S. Const. art. III, § 2,
cl. 1; see Kerin v. Titeflex Corp., 770 F.3d 978, 981 (1st Cir.
2014). "The existence of standing is a legal question, which we
review de novo." Kerin, 770 F.3d at 981. "When reviewing a pre-
discovery grant of a motion to dismiss for lack of standing, 'we
accept as true all well-pleaded fact[s] . . . and indulge all
reasonable inferences' in the plaintiff[s'] favor." Id. (first
alteration and omission in original) (quoting Katz v. Pershing,
LLC, 672 F.3d 64, 70 (1st Cir. 2012)). "Because no class was
certified below, our review is limited to whether [the named
plaintiffs have] standing." Id."To satisfy th[e] standing requirement, a plaintiff must
sufficiently plead three elements: injury in fact, traceability,
and redressability." Id.; see, e.g., TransUnion LLC v. Ramirez,
141 S. Ct. 2190, 2203 (2021). "An 'injury in fact' is 'an invasion
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of a legally protected interest which is (a) concrete and
particularized, and (b) "actual or imminent, not conjectural or
hypothetical."'" Kerin, 770 F.3d at 981 (quoting Lujan v. Defs.
of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted)); see,
e.g., TransUnion, 141 S. Ct. at 2203. Traceability "requires the
plaintiff to show a sufficiently direct causal connection between
the challenged action and the identified harm." Katz, 672 F.3d at
71; see, e.g., Lujan, 504 U.S. at 560. And redressability requires
the plaintiff to "show that a favorable resolution of her claim
would likely redress the professed injury." Katz, 672 F.3d at 72;
see, e.g., Lujan, 504 U.S. at 561, 568-71.
Importantly, "plaintiffs must demonstrate standing for
each claim that they press and for each form of relief that they
seek (for example, injunctive relief and damages)." TransUnion,
141 S. Ct. at 2208.
We stress that the standing inquiry is distinct from the
determination of whether the plaintiffs' claims have merit;
"standing in no way depends on the merits of the plaintiff[s']
contention that particular conduct is illegal." Hochendoner, 823
F.3d at 734 (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).
III.
We first consider the plaintiffs' standing to pursue
monetary relief. The complaint alleges only economic injury in
the form of overpayment. In addition to statutory and common law
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claims explicitly based on misrepresentations, the complaint
includes several claims pursuant to state statutes creating
implied warranties of merchantability. These statutes are modeled
on Uniform Commercial Code ("UCC") section 2-314, which provides,
inter alia, that "[g]oods to be merchantable must . . . conform to
the promise or affirmations of fact made on the container or label
if any." U.C.C. § 2-314(2) (Am. L. Inst. & Unif. L. Comm’n 1977);
see, e.g., Alaska Stat. § 45.02.314 (adopting similar language).
The plaintiffs' counsel explained during oral argument that they
view their claims under these statutes as "essentially . . .
fraudulent inducement claim[s] under the UCC," and Evenflo's
counsel agreed that these counts are "wrapped up in the same
economic harm analysis" as the plaintiffs' other claims. We
consider these claims together with the plaintiffs' other claims
sounding in misrepresentation. In keeping with the plaintiffs'
characterization of their claims, our ultimate holding that the
plaintiffs have standing to pursue monetary relief on these counts
is limited to the degree to which the plaintiffs seek redress for
economic injuries resulting from Evenflo's misrepresentations,
rather than any other potential breach of warranty.
Evenflo attacks both the cognizability of overpayment as
an injury in the absence of physical or emotional harm and the
plausibility of the plaintiffs' pleading of that injury in this
case. We consider both arguments in turn.
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A.
We first address Evenflo's more sweeping argument: that
"where a plaintiff is not actually injured by an allegedly unsafe
product, she does not have standing to pursue a claim for damages."
We disagree. This court has repeatedly recognized overpayment as
a cognizable form of Article III injury. See Gustavsen v. Alcon
Lab’ys, Inc., 903 F.3d 1, 7-9 (1st Cir. 2018); In re Asacol
Antitrust Litig., 907 F.3d 42, 47 (1st Cir. 2018) (recognizing
"injury in the form of lost money fairly traceable to an allegedly
unlawful supra-competitive price"); In re Pharm. Indus. Average
Wholesale Price Litig., 582 F.3d 156, 190 (1st Cir. 2009)
(recognizing "overpayment [as] a cognizable form of injury").
Gustavsen illustrates that overpayment for a product --
even one that performs adequately and does not cause any physical
or emotional injury -- may be a sufficient injury to support
standing. There, this court concluded that a group of consumers
had plausibly pleaded a concrete injury by alleging that they had
overpaid for eyedrops as a result of bottles that dispensed larger
than necessary drops. 903 F.3d at 7-9. The consumers did not
claim, for standing purposes, that the eyedrops failed to perform
or caused them any physical or emotional harm; they relied entirely
on the allegation that, were the bottle more efficiently designed,
they would have spent less money on the product. See id.
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Evenflo seeks to distinguish Gustavsen by characterizing
it as involving "the loss of a product that a company forced [the
plaintiffs] to waste." But Gustavsen did not turn on the fact
that the plaintiffs were wasting portions of a consumable product;
the court recognized that the plaintiffs had sufficiently pleaded
an injury in the form of "an out-of-pocket loss" of money. Id. at
7. The plaintiffs assert the same type of injury here. That the
mechanics underlying that injury are somewhat different in this
case -- a one-time overpayment for a durable product, rather than
repeated overpayments for a consumable good -- does not undercut
the concreteness of the alleged economic harm.
Kerin also does not undercut the plaintiffs' standing
here. The plaintiff there did advance an argument that he had
been injured by overpaying for a product, but did not argue that
the source of the injury was a misrepresentation. See 770 F.3d at
983-84, 984 n.3. The plaintiff's purported injury instead rested
entirely on allegations that the product -- which had been approved
as to safety against the alleged risk by state regulators -- was
defective, or at least unsafe, as a result of vulnerability to
lightning strikes, without any argument that the product's
manufacturer had misrepresented its quality. See id. at 983-84.
This court held that, because the purported harm rested entirely
on a purported risk of future injury ruled out by regulatory
authorities, the plaintiff's failure to allege "facts sufficient
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to assess the likelihood of future injury" or establish that the
product would be the cause of any damage rendered "the alleged
risk of harm . . . too speculative to give rise to a case or
controversy." Id. at 985; see id. at 983-85; see also Clapper v.
Amnesty Int'l USA, 568 U.S. 398, 409 (2013) (explaining that
plaintiffs asserting injury based on risk of future harm bear
burden of showing "injury is not too speculative for Article III
purposes" (quoting Lujan, 504 U.S. at 565 n.2)). In contrast, the
plaintiffs here do not rely on a risk of future injury as grounds
for economic loss; instead, they argue that they overpaid (or
purchased the product at all) because of Evenflo's past
misrepresentations.
Our conclusion that the plaintiffs have standing as to
these claims is consistent with precedent from other circuits
addressing similar allegations.
Multiple Second Circuit decisions have determined that
plaintiffs had standing based on overpayment due to a defendant's
false or misleading statements. See Langan v. Johnson & Johnson
Consumer Cos., 897 F.3d 88, 92 (2d Cir. 2018) (finding standing
where plaintiff alleged she paid more for product based on
purported misrepresentation); John v. Whole Foods Mkt. Grp., Inc.,
858 F.3d 732, 736 (2d Cir. 2017) (finding standing on an
overpayment theory where the plaintiff purchased prepackaged
groceries labeled and priced as being heavier than they really
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were); Axon v. Fla.'s Nat. Growers, Inc., 813 F. App'x 701, 703-
04 (2d Cir. 2020) (finding standing where the plaintiff "suffered
an injury-in-fact because she purchased products bearing allegedly
misleading labels and sustained financial injury -- paying a
premium -- as a result").
Although the Third Circuit has, in several decisions
cited by Evenflo, rejected plaintiffs' efforts to invoke
overpayment injuries in cases involving allegedly misleading
marketing where the plaintiffs did not suffer any physical injury,
its decisions have emphasized the plaintiffs' failure to plausibly
plead such an injury. See, e.g., In re Johnson & Johnson Talcum
Powder Prods. Mktg., Sales Pracs. & Liab. Litig., 903 F.3d 278,
282-83, 285-90 (3d Cir. 2018). We conclude that the plaintiffs in
this case have adequately pleaded the injury.
The Fifth Circuit, in Cole v. General Motors Corp., 484
F.3d 717 (5th Cir. 2007), held that purchasers of vehicles with
allegedly defective airbag systems that could inadvertently deploy
had standing to sue even though their airbags had never actually
inadvertently deployed. See id. at 721-23. The court concluded
that each plaintiff had suffered an economic injury based on the
"difference between what they contracted for and what they actually
received" -- an economic injury that manifested "at the moment
[each plaintiff] purchased a [vehicle] because each [vehicle] was
defective." Id. at 722-23. The complaint here alleges analogous
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economic injuries that manifested at the moment of purchase because
each purchase was allegedly the product of misrepresentations,
regardless of whether any physical injury ultimately resulted.1
The Sixth Circuit, too, recognizes that a
"[p]laintiff['s] allegation that [she] suffered a monetary loss by
paying more for [a product] because of the [defendant's]
misrepresentation establishes a cognizable injury." Loreto v.
Procter & Gamble Co., 515 F. App'x 576, 581 (6th Cir. 2013).
The Seventh Circuit has also concluded that an
overpayment injury is cognizable for standing purposes. See In re
Aqua Dots Prods. Liab. Litig., 654 F.3d 748, 750-51 (7th Cir.
2011). Aqua Dots held that a group of parents who had bought, but
whose children had not been injured by, a defective toy had
standing to sue based on a "financial [injury]: they paid more for
the toys than they would have, had they known of the risks the
[toys] posed to children." Id. at 751. While the plaintiffs in
1 Evenflo relies on the Fifth Circuit's decision in Rivera
v. Wyeth-Ayerst Laboratories, 283 F.3d 315 (5th Cir. 2002), which
concluded that a group of patients lacked standing to sue over
alleged defects -- and the defendant's failure to warn of the
alleged defects -- in a medication where the plaintiffs did not
claim that the medicine had "caused them physical or emotional
injury, was ineffective as a pain killer, or ha[d] any future
health consequences." Id. at 319. As the Fifth Circuit explained
in Cole, however, the Rivera plaintiffs "did not assert economic
harm emanating from anything other than potential physical harm,"
Cole, 484 F.3d at 722-23; see Rivera, 283 F.3d at 319-21; cf.
Kerin, 770 F.3d at 983, unlike the plaintiffs here, whose complaint
alleges that they were injured by Evenflo's misrepresentations.
As a result, Cole presents the better analogy for this case.
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this case pursue misrepresentation claims, rather than the
products liability claims raised in Aqua Dots, see id. at 750-51,
the injury is analogous, as the complaint here alleges that the
plaintiffs paid more than they would have if Evenflo had not
misrepresented its products.
Eighth Circuit precedent less clearly favors the
plaintiffs but is ultimately consistent with their theory of
standing. That circuit has held that "plaintiffs claiming economic
injury do not have Article III standing in product defect cases
unless they show a manifest defect." Johannessohn v. Polaris
Indus. Inc., 9 F.4th 981, 988 (8th Cir. 2021) (finding no standing
where plaintiffs sought to rely on overpayment theory of injury
but did not plead that every product demonstrated the alleged
defect). The plaintiffs' case sounds in misrepresentation rather
than products liability, however. And the Eighth Circuit has also
held that, even if the defect must manifest to support standing,
it need not necessarily cause any physical injury; for this reason,
consumers who had purchased pipes susceptible to cracking could
claim standing based on that defect when the pipes cracked but did
not actually leak. In re Zurn Pex Plumbing Prods. Liab. Litig.,
644 F.3d 604, 608-09, 616-17 (8th Cir. 2011). While the plaintiffs
here do not assert that every Big Kid they purchased exhibited a
defect, the complaint does allege that Evenflo's
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misrepresentations applied to and influenced each purchase.2 This
reliance on misrepresentation distinguishes this case from the
products liability actions in which the Eighth Circuit has found
standing lacking for want of injury.
A line of Ninth Circuit decisions holds that "[i]n a
false advertising case, plaintiffs [have standing] if they show
that, by relying on a misrepresentation on a product label, they
'paid more for a product than they otherwise would have paid, or
bought it when they otherwise would not have done so.'" Reid v.
Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015) (quoting
Hinojos v. Kohl's Corp., 718 F.3d 1098, 1104 n.3 (9th Cir. 2013));
accord, e.g., Mazza v. Am. Honda Motor Co., 666 F.3d 581, 595 (9th
Cir. 2012), overruled on other grounds by Olean Wholesale Grocery
Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651 (9th Cir. 2022).3
2 This reliance on an alleged misrepresentation
distinguishes this case from O'Neil v. Simplicity, Inc., 574 F.3d
501 (8th Cir. 2009), on which Evenflo relies. There, the
plaintiffs, who had purchased an allegedly defective crib from the
defendant, did not allege that the defendant had misrepresented
its product -- only that some cribs had exhibited a defect,
although theirs had not. See id. at 503-04. Because the crib had
not failed to perform, the court held that the plaintiffs had not
been injured. See id. Here, the plaintiffs' injury stems from
the misrepresentations, not a defect in the Big Kid.
3 Evenflo cites the Ninth Circuit's decisions in McGee v.
S-L Snacks National, 982 F.3d 700 (9th Cir. 2020), and Birdsong v.
Apple, Inc., 590 F.3d 955 (9th Cir. 2009), in support of its
argument that "where a plaintiff is not actually injured by an
allegedly unsafe product, she does not have standing to pursue a
claim for damages." But the court in both cases noted that
overpayment as a result of misrepresentations by a defendant could
create a cognizable Article III injury before determining that the
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Finally, the Eleventh Circuit has held that a "person
experiences an economic injury" that "qualifies as a concrete
injury" for standing purposes "when, as a result of a deceptive
act or an unfair practice, he is deprived of the benefit of his
bargain." Debernardis v. IQ Formulations, LLC, 942 F.3d 1076,
1084 (11th Cir. 2019). The Debernardis plaintiffs sought damages
related to their purchase of allegedly adulterated dietary
supplements; they did not allege that "the supplements failed to
perform as advertised" or inflicted physical harm, but instead
asserted that "[b]ecause the supplements had no economic value,
each plaintiff paid an 'unwarranted amount' to purchase the
supplements." Id. at 1082, 1085-86. Evenflo seeks to distinguish
Debernardis on the grounds that the supplement purchasers alleged
that the adulterated products were worthless, see id. at 1084-86,
but this distinction makes no difference in the standing inquiry.
While the Eleventh Circuit did discuss the supplements' alleged
worthlessness, it did not state, or even imply, that a
diminution -- rather than a complete loss -- in value would not
constitute a concrete injury. See id. On the contrary, it
observed that when a "product retains some value," a plaintiff's
"damages are less than the entire purchase price" -- but that
plaintiffs had not alleged any such misrepresentations. See McGee,
982 F.3d at 706-07; Birdsong, 590 F.3d at 961-62. The plaintiffs
here have done so.
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plaintiff is nonetheless injured. Id. at 1084. And, in any event,
a requirement that plaintiffs allege that a product is worthless
in order to invoke an overpayment injury is irreconcilable with
the rule that "a relatively small economic loss -- even an
'identifiable trifle' -- is enough to confer standing." Katz, 672
F.3d at 76 (quoting Adams v. Watson, 10 F.3d 915, 924 (1st Cir.
1993)).
Evenflo, supported by its amici, argues that this body
of precedent recognizing overpayment injuries is in tension with
the Supreme Court's recent decisions in Spokeo v. Robins, 578 U.S.
330 (2016), and TransUnion. Those decisions examined the
concreteness requirement for injury in fact, reaffirming that the
injury must be "real, and not abstract." TransUnion, 141 S. Ct.
at 2204 (quoting Spokeo, 578 U.S. at 340); see id. at 2204-07;
Spokeo, 578 U.S. at 340-43. Contrary to Evenflo's argument, the
decisions made clear that monetary harms such as those alleged
here fall firmly on the real, concrete side of the divide.
TransUnion in fact described "monetary harms" as "traditional
tangible harms" that "readily qualify as concrete injuries under
Article III," and contrasted such harms with more abstract --
although still concrete -- forms of injury, such as "reputational
harms, disclosure of private information, and intrusion upon
seclusion." 141 S. Ct. at 2204. Nothing in TransUnion indicated
that some monetary harms are concrete while others are not; the
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Court there held that properly pleaded monetary harms -- like those
asserted by the plaintiffs here -- are sufficiently concrete, as
compared to other, nonmonetary forms of injury, which may or may
not be concrete. See id.; see also Gustavsen, 903 F.3d at 8
(explaining that overpayment injuries involve "actual economic
loss, which is the prototypical concrete harm," even after Spokeo).
TransUnion and Spokeo support the plaintiffs' standing.
B.
We turn to Evenflo's argument that the complaint does
not allege sufficient facts to plausibly demonstrate that, as a
result of Evenflo's misrepresentations, the plaintiffs spent more
money than they otherwise would have. See Hochendoner, 823 F.3d
at 731. In conducting this "context-specific" plausibility
inquiry, we "'[must] draw on [our] judicial experience and common
sense' . . . [and] read [the complaint] as a whole."
García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013)
(first alteration in original) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009)). We conclude that, read as a whole, the
complaint's allegations satisfy the plausibility standard.
The complaint typically alleges that "[h]ad [the
plaintiffs] known about the defective nature of Evenflo's Big Kid
booster seat[], [they] would not have purchased the seat, would
have paid less for it, or instead would have purchased one of many
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safer available alternatives."4 The references to "know[ing] about
the defective nature" of the Big Kid are fairly read in the context
of the complaint to refer to how the plaintiffs would have acted
were it not for Evenflo's misrepresentations, and Evenflo does not
argue otherwise. Instead, it contends that these allegations fall
short of plausibly demonstrating any financial injury.
Evenflo raises doubts about the plausibility of the
purported injury under each of the plaintiffs' proposed
alternative courses of action. First, it argues that the
plaintiffs could not plausibly "forgo buying [any] car seat, given
that the use of a car seat is required by law in each state where
the [p]laintiffs reside." But the complaint alleges that booster
seats are meant to be used only when children outgrow other models
of car seat (some of which can "fit children up to 90 pounds") and
that Evenflo's marketing the seat as appropriate for smaller
children over thirty pounds presented the product as safe for use
4 For a small number of plaintiffs, the complaint omits
the reference to a safer alternative, stating only that the
plaintiffs would not have purchased the Big Kid or would have paid
less for it were it not for the misrepresentations. We consider
these plaintiffs' standing alongside that of the other plaintiffs
for two reasons. First, purchasing an alternative seat is an
obvious step these plaintiffs might have taken if they chose not
to purchase the Big Kid, and so the cost of doing so might still
bear on their standing. Second, as discussed below, we see the
reference to a safer alternative as the weakest point in the
plaintiffs' claim to standing. Considering these plaintiffs
alongside the others works to Evenflo's benefit -- though we
ultimately conclude that the plaintiffs have plausibly pleaded
their standing.
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(and purchase) sooner than it actually was, making it reasonable
to infer that parents could have continued using other models
rather than choosing to buy a new seat.
Next, Evenflo attacks the plaintiffs' claim that they
might have paid less for the Big Kid for offering no "measure" or
"basis" for the decreased price. But it is a reasonable inference
that, if Evenflo had not marketed the Big Kid as safe for children
as small as thirty pounds and as side impact tested, the product
would have commanded a lower price, allowing the plaintiffs to pay
less for it.5 At this stage of the litigation, that inference
5 In Gustavsen, this court noted that the plaintiffs had
cited "scientific studies and the admission of a marketing
executive" in arguing that, were eyedrop bottles more efficiently
designed, the plaintiffs' costs would decrease. 903 F.3d at 8.
But Gustavsen did not establish a bright-line rule that such
supporting materials are necessary for pleading this type of
injury, and it emphasized their existence because of the "unusual"
economic theory advanced by the plaintiffs, "in which a large
number of companies independently for[went] what seem[ed] like a
profit maximizing opportunity of lowering marginal costs." Id.
The inference in this case -- that a loss of favorable marketing
claims would make a product less marketable -- is much more
straightforward.
Lee v. Conagra Brands, Inc., 958 F.3d 70 (1st Cir. 2020), on
which Evenflo also relies in support of its argument that the
complaint must quantify the plaintiffs' injury, noted that the
plaintiff, who alleged overpayment based on a misleading product
label, had cited "several studies" in her pleadings to support her
theory of harm. Id. at 80. Lee, however, concerned the
requirements for pleading injury under a Massachusetts state
statute, not Article III, and, in any event, did not indicate that
such studies are always required. See id. at 80-81. The relevant
question under Article III remains whether the complaint alleges
sufficient facts to "plausibly demonstrate [the plaintiffs']
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suffices to support the plaintiffs' standing even without
quantification of the change in market value.
Finally, Evenflo highlights the plaintiffs' allegation
that, were it not for Evenflo's misrepresentations, they may have
purchased a safer alternative seat. It points out that the
complaint does not allege that such alternatives would have been
cheaper -- and in fact alleges that the Big Kid was roughly $10
cheaper than its chief competitor. This argument has some force,
but we conclude that, at the pleading stage, it does not defeat
the plaintiffs' standing. Cf. Axon, 813 F. App'x at 704
(recognizing injury even where the plaintiff "fail[ed] to identify
the prices of competing products to establish the premium that she
paid"). Given that purchasing a different seat is only one of the
three alternative courses of action described in the complaint and
the possibility that a cheaper alternative exists, the complaint,
taken as a whole, plausibly supports the plaintiffs' argument that
Evenflo's misrepresentations caused them to overpay.
Evenflo also faults the plaintiffs for "offer[ing] no
theories of how damages could be measured"; although it concedes
that "[a] precise amount of damages need not be pleaded," it
asserts that the plaintiffs must at least offer "the formula" for
measuring damages. But at the pleading stage, to demonstrate
standing." Gustavsen, 903 F.3d at 7 (quoting Hochendoner, 823
F.3d at 731).
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Article III standing, plaintiffs need not quantify or offer a
formula for quantifying their injury. See, e.g., TransUnion, 141
S. Ct. at 2211 (recognizing possibility of "an actual harm
that . . . is not readily quantifiable"); García-Catalán, 734 F.3d
at 103 (emphasizing that the plausibility standard "does not demand
'a high degree of factual specificity'" in the context of a motion
to dismiss under Rule 12(b)(6) (quoting Grajales v. P.R. Ports
Auth., 682 F.3d 40, 47 (1st Cir. 2012))).
We note that the plaintiffs' allegations readily satisfy
the remaining requirements of traceability and redressability.
Indeed, Evenflo makes no argument to the contrary. The complaint
alleges that the plaintiffs overpaid because of Evenflo's
misrepresentations, making their injury traceable to the
challenged conduct. See, e.g., Katz, 672 F.3d at 76-77. And
monetary relief would compensate them for their injury, rendering
the injury redressable. See, e.g., Gustavsen, 903 F.3d at 9.
As to arguments going to whether a claim is stated --
for instance, Evenflo's assertions that its statements were not
false, misleading, or inconsistent with regulatory
requirements -- they are not properly before us on appeal. See
Hochendoner, 823 F.3d at 734 (distinguishing between inquiries
under Rules 12(b)(1) and 12(b)(6)).
As the case proceeds, the plaintiffs will bear the burden
of substantiating their alleged injuries, and Evenflo may
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challenge their success in doing so. See, e.g., Valentin v. Hosp.
Bella Vista, 254 F.3d 358, 362-64 (1st Cir. 2001) (discussing
different forms of jurisdictional challenges). Evenflo raised a
variety of other arguments for dismissal before the district court
which that court did not reach. We leave it for the district court
to consider those arguments in the first instance. See, e.g.,
Hochendoner, 823 F.3d at 735 (remanding case for district court to
consider alternative bases for dismissal).
IV.
The plaintiffs' briefs do not address their standing to
pursue declaratory relief, and so they have waived any argument on
that point. See, e.g., FinSight I LP v. Seaver, 50 F.4th 226, 236
(1st Cir. 2022) (argument "presented in conclusory fashion" is
waived).
"Standing for injunctive relief depends on 'whether [the
plaintiff is] likely to suffer future injury . . . .'" Laufer v.
Acheson Hotels, LLC, 50 F.4th 259, 276 (1st Cir. 2022) (quoting
City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)). Nothing
in the plaintiffs' complaint suggests any possibility of future
harm; for example, the complaint does not allege that any plaintiff
intends to purchase a Big Kid in the future. The plaintiffs'
assertions about their past behavior do not plausibly allege any
likelihood of relying on Evenflo's advertising or purchasing Big
Kids in the future, and so there is no impending future injury
- 26 -
that an injunction might redress. The plaintiffs argue that this
reasoning would allow Evenflo to "continue falsely marketing its
Big Kid seats to parents and grandparents . . . who will continue
to purchase them because of Evenflo's false statements." But a
hypothetical future injury to other unnamed "parents and
grandparents" does not give these plaintiffs standing.
V.
Finally, the plaintiffs request that we "amend, or
direct the district court to amend, the judgment to provide for
dismissal without prejudice."6 Although Evenflo's motion to
dismiss requested that the district court "dismiss[] the
[complaint] . . . with prejudice," the district court's decision
and order granting the motion did not state whether it was to
operate with or without prejudice. The accompanying "Judgment in
a Civil Case" form signed by the court's deputy clerk entered
"[j]udgment for the defendant" "[i]n accordance with" the court's
decision and order.
The plaintiffs correctly point out that "a dismissal for
lack of Article III standing must operate without prejudice."
Hochendoner, 823 F.3d at 736 (emphasis added). Given the ambiguity
in the district court's order, we "direct the district court, on
6 Evenflo argues that the plaintiffs should not be granted
leave to amend their complaint, but the plaintiffs do not appear
to request that form of relief on appeal.
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remand, to clarify its judgment to reflect that the judgment is to
operate without prejudice" to the extent we affirm the dismissal
for lack of standing.7 Id.
VI.
We affirm in part, reverse in part, and remand the matter
for further proceedings consistent with this opinion. All parties
shall bear their own costs on appeal.
7 Evenflo argues that the plaintiffs waived, or at least
forfeited, any argument in favor of dismissal without prejudice by
not raising it before the district court. But it is far from clear
that the district court did dismiss with prejudice. And, in any
event, the rule that dismissal for lack of standing must be without
prejudice reflects the fact that a court lacks Article III
jurisdiction "to enter a judgment on the merits," Hochendoner, 823
F.3d at 736, and accordingly implicates "a constitutional
requirement that can never be waived," Unión Internacional UAW,
Local 2415 v. Bacardí Corp., 8 F.4th 44, 52 n.5 (1st Cir. 2021)
(citing Foisie v. Worcester Polytechnic Inst., 967 F.3d 27, 35
(1st Cir. 2020)).
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