Whenever we see a class action in which the named plaintiffs suffered no injury, we throw up our hands and think that the invention of class actions was a wrong turn in American legal history. But when we see a case like Klosowski v. FPG Labs, LLC, 2025 WL 2532500 (D. Del. Sept. 3, 2025), we calm down a bit, reminded that there are tools courts can employ to cabin the madness. 

In Klosowski, nine individuals sued companies that provided genetic testing designed to increase the effectiveness of the IVF implantation process.  The defendants represented that their testing was more “than 98% accurate, increases the chance of pregnancy, decreases the chance of miscarriage, leads to higher chance of a healthy pregnancy, and reduces the time to pregnancy.”  The plaintiffs alleged that these representations were false, and brought claims for violations of various state consumer protection statutes, common law fraud, breach of warranty, and unjust enrichment.  They sought certification of a nationwide class, as well as several state subclasses. 

The defendants moved to dismiss the complaint for lack of standing and failure to state a claim.  Why?  None of the named plaintiffs alleged that the genetic testing they bought failed to work for them. 

One wonders what these plaintiffs and their counsel were thinking.  None of the class representatives could possibly have suffered the solely economic injuries that the complaint raised.  “In essence, Plaintiffs claim they overpaid for a product that did not work as it was supposed to — despite Defendants’ representations that it did. This is known as the benefit of the bargain theory.” But as far as we or the court can tell, the tests worked and the plaintiffs got what they paid for – the full economic benefit of their bargain.  

The court wasted little time in dismissing the complaint for lack of standing. The complaint cited studies purporting to undermine the scientific efficacy of the genetic testing.  So what?  “Allegations that a product is [flawed] as to others are not relevant to determining whether named plaintiffs have standing themselves.”  

Plaintiffs themselves must suffer an actual injury, not some generalized interest.  None of the risks that the plaintiffs alleged came to pass for them.  Indeed, as the Klosowski court pointed out, “some of these adverse outcomes are directly in conflict with and mutually exclusive of one another.”  

Purchasing something that was purportedly “improperly marketed” is not a cognizable injury in and of itself.  The class allegations purported to bring claims on behalf of everyone who ever purchased the product “with no mention of harm whatsoever.”  Such allegations are bereft of any concrete injury-in-fact that could support standing.  The Klosowski court relied on two Third Circuit cases we have discussed before. 

The court did not reach the issue of whether plaintiffs had standing to assert claims outside their home states, but urged the plaintiffs to consider that issue if they chose to amend the complaint.  Any class claim was foreclosed under Louisiana law, so at least that part of the complaint was dismissed with prejudice.