Just last week we blogged about our disappointment over the Third Circuit’s resurrection of a “benefit of the bargain theory” of standing in Huertas v. Bayer US LLC, 120 F.4th 1169 (3d Cir. 2024). But we also recognized that Huertas had a silver lining that defendants could still use to challenge standing—by challenging the quality/quantity of plaintiff’s allegations of product testing.  Mere days later we happened upon a defendant that did just that in Pineda v. Lake Consumer Products, Inc., 2024 U.S. Dist. LEXIS 220895 (E.D. Pa. Dec. 5, 2024).     

Plaintiff filed a putative class action lawsuit against defendant, the manufacturer of coal tar shampoo products, alleging its products were contaminated with benzene.  Just like in Huertas, plaintiff alleged that she suffered an economic injury because the presence of benzene in the shampoo made the product “worth less” than what she paid for it.  Under Huertas, the district court was obligated to conclude that was a cognizable injury.  Id. at *7.  But to confer standing, the injury also needs to be “concrete and particularized.”

Standing requires plaintiff to “plausibly allege that her product was defectively manufactured—or that it contained benzene.”  Id. at *8.  Again, like in Huertas, plaintiff alleged that testing revealed the presence of benzene in defendant’s “coal tar shampoo products.”  But as used in the complaint, that term referred to several of defendant’s products, of which plaintiff used “at least one.”  In other words, plaintiff did not have proof that the shampoo she bought was contaminated, so she was attempting to rely on “representative testing.”  And while the hurdle for establishing standing via representative testing isn’t high, it does exist.  In Huertas, plaintiff cleared that hurdle by demonstrating that the sample of products tested all came from the same lot, which was same lot as the recalled products that plaintiff had purchased.  Plaintiff was able to demonstrate a connection between his products and the alleged harm. 

But the allegations in Pineda were “incredibly vague.”  Id. at *13. Plaintiff did not allege which products were tested.  She did not allege when the tested were products were purchased which “could give rise to a reasonable inference that Plaintiff’s products were similarly contaminated.”  Id. at *14.  No lot numbers were mentioned, and no allegations gave the court any reason to infer that the contamination was “so widespread” as to reasonably include plaintiff’s products.  Leading the court to find that plaintiff’s “broad” allegations regarding testing are “so unspecified” that they “stop short of the line between possibility and plausibility.”  Id. 

As we predicted, the scope of available testing directly impacts who has standing to bring this type of economic loss contamination-based class action.  And while we would prefer no “benefit of the bargain” standing, keeping it narrowly focused will have to do for now.