Long, long ago, when we clerked for a federal district judge, we handled more than a few prisoner cases. We have to confess that many of the ones we saw were humorous to us, because they alleged a range of perceived slights and personal affronts as violations of their constitutional rights. (As readers know, we take constitutional rights seriously. That applies to prisoners too, but we are talking about allegations regarding the purported right to masturbate and the purported right to be free of guards claiming they were having sex with the prisoner’s wife.) Some of the prisoner plaintiffs were frequent flyers. Because prisoners are often allowed to proceed in forma pauperis under 28 U.S.C. §1915, without filing fees and with time on their hands, some prisoners brought case after case. Some of them may have thought their cases were all well founded and some may have found them good ways to pass the time. We are not sure what they thought, but we know that §1915 allows the courts overseeing such a case to dismiss it sua sponte if the court determines at any time that “the action or appeal—(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii)seeks monetary relief against a defendant who is immune from such relief.” The frequent flyers we saw back then were flagged to get a substantive review of their complaints with their pauperis applications. Many of those cases ended at that point.
We know of nothing like this screening procedure for frequent flyers who pay filing fees, but maybe there should be. The cottage industry of “patent trolls” who tend to bring case after case in a single district court has been well described. There are also frequent flying consumer protection trolls who team up with the same lawyers to bring questionable cases in the apparent hope that defendants will pay to avoid the nuisance. When we read Valiente v. Publix Super Markets, Inc., No. 22-22930-Civ-Sola, 2023 U.S. Dist. LEXIS 91089 (S.D. Fla. May 24, 2023), we thought it had an interesting discussion of standing, which we have addressed a few times recently in the context of medication abortion litigation. See here, here, and here. We might have focused on the relationship between Valiente, the medication abortion decisions, and some of the other standing issues that are percolating. Instead, we noticed that the Valiente judge cited an arguably inconsistent decision in a case called Valiente v. Unilever United States, Inc., rendered by another judge in the same district, and we traveled down a little google hole. The other Valiente had a different first name, but they seem to be related by blood or marriage because of a common address and founding positions with a now-defunct Florida corporation. The share the same lawyer too. We have since noticed that this lawyer has been called out by multiple federal judges for filing a raft of weak consumer protection cases about a wide range of products. That lawyer has also represented the first Valiente in at least two other consumer fraud type class action cases in the same district, one against a manufacturer of sneakers and athletic wear and the other against a manufacturer of home exercise machines over telephonic solicitation. (We talked about the latter type of suit here.) The judge for the first Valiente case was also the judge for the case against the home exercise machine manufacturer, which looks like it was dismissed and re-filed in California federal court. Our google dive was far from exhaustive, but it was enough to tell us that this plaintiff wishes to make a career out of being a wannabe class rep and this judge should have known it. We do not think our eyes are the only ones sufficiently jaundiced by frivolous litigation to see that such a plaintiff, especially when represented by such a lawyer, is unlikely to be suing to redress some actual harm.
That brings us back to the standing issue. Plaintiff sued over his purchase of a drug store’s brand of honey-lemon cough drops. He claimed to have been misled by pictures of a honeycomb and a half lemon, along with the phrase that the product “soothes sore throat[s],” on the outer packaging. 2023 U.S. Dist. LEXIS 91089, *2. Per his amended complaint, he wanted to be the rep of classes covering purchasers in a number of states who purchased the cough drops for a “premium price” because they were, like he alleged was, under the impression that the drops had “a non-negligible amount of lemon” and that they “acted on bronchial passages.” Id. at *2-3. These allegations were facially questionable because the packaging listed the ingredients—no lemon—and made clear than menthol was the active ingredient. Also, he paid a whopping $1.79 for 30 drops or roughly $0.06 per drop. Although plaintiff had asserted six different claims, defendant’s challenge to standing required that the court address only the request for monetary damages and the request for injunctive relief.
As we have detailed recently, the Supreme Court’s decision in Spokeo v. Robins, 578 U.S. 330, 338 (2016), directs the standing inquiry to whether the plaintiff has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Although the TwIqbal decisions are not cited in Valiente, a plaintiff cannot get past a standing challenge at the pleading stage merely by alleging that these elements have been met. As to plaintiff’s claim for monetary damages, he had a hard sell to establish an injury in fact. Right on the package of the cough drops, defendant offered an unconditional money back guaranty. 2023 U.S. Dist. LEXIS 91089, *5-6. Absent some allegation that he tried and failed to get his $1.79 back—something most people would not attempt unless they were trying to become a class rep—the existence of the guaranty mooted any possible injury in fact. We are not suggesting all consumer product sellers offer unconditional money back guaranties, but it sure makes sense that they would negate consumer fraud claims by purchasers (as opposed to state AGs).
Valiente went further and held that plaintiff’s allegations of harm due to paying a “premium price” for his cough drops did not lead to standing. For one thing, that $0.06 per cough drop was a premium price was based on a conclusory allegation without any factual support. Id. at *9 & 13. We did a little marketplace research on a fluvial shopping site and could find no cough drops sold for less than $0.06 per. If you bought more than 300 at once, then you could get close to the per drop price the Valiente plaintiff paid. For another, plaintiff did not allege that he would not have bought the cough drops had the packaging been different. Other plaintiffs, including the other Valiente, had apparently slipped past standing challenges based on conclusory allegations that they would not have bought the product at all. This plaintiff merely alleged that he would have paid some unspecified amount less than he did. Id. at *10-11. This potential $0.01 of damages was too oblique to credit. In addition, plaintiff did not allege the cough drops did not work as well as expected or even that their composition made them “materially different from how they are marketed by [defendant].” Id. at *12. Thus, plaintiff’s “allegations as to why he has been deprived of the benefit of the bargain all boil down to his subjective, personal expectations of what the cough drops purported to do.” Id. at *14. That is insufficient for standing and similar reasoning should apply to a number of ginned-up consumer fraud claims. (We also think it should apply to the “subjective, personal expectations” for how the world should be offered up as a basis for standing in the AHM case, but we will not hold our breath on that.)
Standing for plaintiff’s injunctive relief claims was even easier to address. He had no past injury in fact—see above—and had no allegations supporting future harm that an injunction would prevent. Id. at *15. He alleged that he “will purchase the [cough drops] again when he can do so with the assurance the [p]roduct’s representations are consistent with its abilities, attributes, and/or composition,” and not otherwise. Id. at *16-17. Perhaps a professional plaintiff and lawyer who had filed more than 400 similar federal lawsuits since 2020 should have coughed up something better, but their failure meant that, as alleged, plaintiff would suffer no future injury if nothing changes. That means there is nothing to enjoin.
One final note—and this may be where a frequent flyer gets less rope—is that plaintiff’s case was dismissed with prejudice on his second attempt at a viable complaint. We have decried that plaintiffs often get three or more chances to plead before they face dismissal with prejudice. Here, plaintiff buried a request for leave to amend with his response to a motion to dismiss rather than filing a timely motion to amend, which the court did not excuse. Id. at *18. A dismissal with prejudice is good, but, absent imposing costs or sanctions—or even getting flagged for some early screening procedure—professional plaintiffs will get to keep playing their games without much risk.