Purported class actions on behalf of people who haven’t really suffered any injury are one of the banes of our existence. While not limited to California or courts in the Ninth Circuit, some of the worst (most of which we haven’t covered because they are adverse non-drug/device cases) decisions certainly hail from there.
Recently, however the Ninth Circuit, clipped no-injury plaintiffs’ wings in McGee v. S-L Snacks National, 982 F.3d 700 (9th Cir. 2020). The claims involved the presence, in food, of partially hydrogenated oil (“PHO”) – which the FDA removed from its “generally recognized as safe” list in 2015, but apparently has not concluded is actually a health risk. Congress then weighed in on the side of the continued availability of PHO. Id. at 703 n.1.
Plaintiffs in McGee, of course, had no such scientific compunctions. Id. at 703. But they lost, and the Ninth Circuit restricted no fewer than four no-injury theories.
Benefit of the bargain. There actually has to be a bargain. Here, there wasn’t one. The presence of PHO was never concealed, id. at 706, and the named plaintiff (at best) wasn’t paying attention to the ongoing scientific debate. Id. at 704. Plaintiff claimed only the usual garbage that she “assumed” the product was “safe.” Id. Not good enough:
Although she may have assumed that [the product] contained only safe and healthy ingredients, her assumptions were not included in the bargain, particularly given the labeling disclosure that the product contained [PHO]. Thus, even if those expectations were not met, she has not alleged that she was denied the benefit of her bargain.
McGee, 982 F.3d at 706.
Overpayment. Plaintiff also claimed that the product wasn’t “worth” what she paid for it because of the presence of disclosed PHO. Defendant’s full disclosure of PHO took this claim away, too, leaving only a “novel” theory the Ninth Circuit wouldn’t sanction.
She does not allege that [defendant] made false representations − or actionable non-disclosures − about [the product]. Thus, a key element of our overpayment cases − a defendant’s misrepresentations about a product − is absent here. To the extent [plaintiff] contends that a plaintiff may rely on an overpayment theory of economic injury in a case that does not involve misrepresentations, she raises what appears to be a novel theory.
Id. at 707. McGee declined to embrace loopy precedent from elsewhere, holding instead that because the alleged “health risks . . . were established,” at the relevant time, there was no evidence that the product “was worth objectively less than what one could reasonably expect.” Id. at 708 (citation and quotation marks omitted). Indeed, since it is undisputed that PHOs increase product shelf life significantly, they may well have increased product value.
Immediate physical injury. Plaintiffs also claimed bodily injury (organ damage and impaired cognition) on the basis of even minimal PHO exposure (“any quantity causes physical injury”). McGee found these injury allegations (which would be cognizable, if they were plausible) insufficient – given what the plaintiff failed to plead:
We are not persuaded, however, that [plaintiff] has plausibly alleged that she suffered these injuries. She does not allege that she has undergone medical testing or examination to confirm that she suffers from these conditions or that they were caused by her consumption of [the product].
McGee, 982 F.3d at 708. The relevant studies “do not assert that [PHO] consumption” – even in the amount the named plaintiff claimed “invariably (or even ordinarily) inflames or damages vital organs.” Id. at 709. Because plaintiffs’ studies did not support her injury allegations, those allegations were “simply too speculative to support standing, even at the pleading stage.” Id. The claimed injuries were insufficiently “‘concrete and particularized’ and ‘actual or imminent.’” Id. (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016)).
Future physical injury. Given the fate of plaintiffs’ present injury claim in McGee, it’s no surprise that dismissal of the claim of being at risk of future injury was also affirmed. Even assuming a risk, it was neither “substantial” nor “imminent.” Just as plaintiffs’ studies didn’t support any present injury, they likewise refuted any future risk – and thus any classwide basis for relief:
[T]he studies she relies on associate serious health risks with greater levels of consumption. . . . Thus, although the complaint alleges that there are serious health risks associated with [PHO], even in small quantities, we are not persuaded that [plaintiff] has plausibly alleged that her limited consumption . . . placed her at substantial risk of disease.
McGee, 982 F.3d at 710. “Accordingly, [plaintiff] has not sufficiently alleged injury in fact based on her risk of future physical injury.” Id.
While McGee doesn’t kill off any of plaintiffs’ no-injury theories, outright it does substantially limit their use, and does so in the context of TwIqbal and a motion to dismiss – and that’s worth blogging about.