PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 17-2980

_____________

IN RE: JOHNSON & JOHNSON TALCUM POWDER 

PRODUCTS MARKETING, SALES PRACTICES AND 

LIABILITY LITIGATION

 Mona Estrada,

 Appellant 

_____________

On Appeal from the United States District Court

for the District of New Jersey

District Court Nos. 3-16-cv-07492 and 3-16-md-02738

District Judge: The Honorable Freda L. Wolfson

Argued June 14, 2018

Before: SMITH, Chief Judge, CHAGARES, and 

FUENTES, Circuit Judges

(Filed: September 6, 2018)
2

Timothy G. Blood [ARGUED]

Blood Hurst & O’Reardon

501 West Broadway 

Suite 1490

San Diego, CA 92101

Charles L. Gould

Alison D. Hawthorne

W. Daniel Miles, III

Beasley, Allen, Crow, Methvin, Portis & Miles

218 Commerce Street

Montgomery, AL 36104

Counsel for Appellant

Adam M. Kaplan

Matthew D. Powers [ARGUED]

James K. Rothstein

O’Melveny & Myers

Two Embarcadero Center

28th Floor

San Francisco, CA 94111

Counsel for Appellee

________________

OPINION

________________
3

SMITH, Chief Judge.

The question presented in this appeal from a 

dismissal of a class action is both narrow and novel: Has a 

plaintiff—who has entirely consumed a product that has 

functioned for her as expected—suffered an economic 

injury solely because she now sincerely wishes that she 

had not purchased that product? We hold that such a 

plaintiff has not suffered an economic injury sufficient to 

bring a claim in federal court. More succinctly, buyer’s 

remorse, without more, is not a cognizable injury under 

Article III of the United States Constitution.

A plaintiff alleging an economic injury as a result 

of a purchasing decision must do more than simply 

characterize that purchasing decision as an economic 

injury. The plaintiff must instead allege facts that would 

permit a factfinder to determine, without relying on mere 

conjecture, that the plaintiff failed to receive the economic 

benefit of her bargain. Because the plaintiff here has failed 

to plead facts sufficient to establish economic harm, the 

District Court’s judgment will be affirmed.

I. BACKGROUND

Plaintiff Mona Estrada alleges that a woman’s 

perineal use of Defendant Johnson & Johnson’s Baby 

Powder can lead to an increased risk of developing ovarian 
4

cancer. JA 47. Without question, that is a serious 

allegation. Yet the validity of Plaintiff’s epidemiological 

theory is not for this court to decide.1 Nonetheless, 

because Estrada has artfully woven that serious allegation

into her complaint—despite it having little connection to 

the alleged economic injury that forms the basis of her 

claim—we must begin our discussion by carefully 

describing what this case is not about.

First, Plaintiff does not allege that a product has 

caused her physical injury.2 Estrada does not allege that 

she has ovarian cancer, nor does she allege even an 

increased risk of developing cancer. Second, this case 

makes no claim of emotional injury. Estrada does not 

allege, for example, that she suffers from a fear of 

 1 “When reviewing an order of dismissal for lack of 

standing, we accept as true all material allegations of the 

complaint and construe them in favor of the plaintiff.” 

Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 

288 (3d Cir. 2005) (quoting Conte Bros. Auto., Inc. v. 

Quaker State–Slick 50, Inc., 165 F.3d 221, 224 (3d Cir. 

1998)).

2 JA 49–50 (“Plaintiff is not claiming physical harm or 

seeking the recovery of personal injury damages.”). 

Excluded from Estrada’s proposed class definition are 

individuals “who assert claims from personal injury.” JA 

71.
5

someday developing ovarian cancer. Third, this case does 

not involve allegations of a defective product. Estrada 

purchased Baby Powder labeled as being “designed to 

gently absorb excess moisture,” and marketed as being 

able to “keep[] skin feeling soft, fresh and comfortable,” 

and help “reduce the irritation caused by friction.” JA 52. 

She does not allege that her powder failed to adequately

perform any of these functions.

3 Fourth, this case does not 

involve a durable product still in a plaintiff’s possession. 

Instead, the complaint concerns a nondurable product that 

has already been consumed in its entirety.4 Estrada does 

not, for example, seek to be reimbursed for powder that 

she still possesses but cannot use. Finally, this case does 

 3 Nor could Estrada credibly make such an allegation. She 

continued to purchase the powder for approximately six 

decades—presumably because it worked. See JA 49 

(alleging that Estrada purchased Defendant’s baby powder 

“[f]rom about 1950 to sometime in 2013”). 

4 By “nondurable,” we refer to a product that is consumed 

rather quickly—such as a gallon of gasoline. By contrast, 

a “durable” product is one that is consumed over a much 

longer period of time—such as a new automobile. A 

plaintiff who, for example, alleged that her automobile 

was at risk of imminently malfunctioning because of a 

particular defect would present a much different question 

than the one at hand.
6

not involve any number of other economic theories that 

might confer Article III standing on other plaintiffs. For 

instance, Estrada does not seek to be reimbursed for 

medical monitoring expenses, nor does she seek to recoup

transaction costs associated with reselling or returning 

Baby Powder.

What, then, does Estrada allege? Her theory of 

recovery is simply that she suffered an economic injury by 

purchasing improperly marketed Baby Powder. JA 49.

According to Estrada, had she been properly informed that 

using Baby Powder could lead to an increased risk of 

developing ovarian cancer, she would not have purchased 

the powder in the first place. JA 49, 70. Characterizing this

as an economic injury, she seeks relief for herself and a 

class of similarly situated consumers.5

Estrada first brought this lawsuit in the United 

States District Court for the Eastern District of California. 

JA 46. On March 27, 2015, that court dismissed Estrada’s 

complaint for lack of Article III standing. Estrada Br. 7. 

 5 Estrada seeks certification of a class defined as “All 

persons who purchased [Johnson & Johnson] Baby 

Powder in California and states with laws that do not 

conflict with the laws asserted here.” JA 71. However 

broad this proposed definition, apparently covering even

men (who are obviously incapable of developing ovarian 

cancer), we are not presented with issues arising under 

Rule 23 of the Federal Rules of Civil Procedure.
7

Estrada then filed an amended complaint, but before the 

Eastern District of California could rule on that complaint, 

the case was consolidated as part of a Multidistrict 

Litigation proceeding and transferred to the United States 

District Court for the District of New Jersey (the “District 

Court”). JA 44; Estrada Br. 7.

On July 14, 2017, the District Court dismissed 

Estrada’s complaint without prejudice for lack of Article 

III standing, and granted her leave to amend. JA 5. After 

Estrada informed the District Court that she chose not to 

amend and would stand on her complaint, the District 

Court dismissed the case on August 10, 2017. JA 4.

In concluding that Estrada did not have Article III 

standing, the District Court explicitly considered whether 

Estrada’s allegations fell within any one of three different 

theories of economic injury: (1) alternative product; (2) 

premium price; and (3) benefit of the bargain.JA 16–17. 

Estrada challenges this tripartite analysis, contending that 

the District Court inappropriately funneled her allegations 

into “one of three assumed damage methodologies.” 

Estrada Br. 7. But Estrada was not restricted to the three 

theories considered by the District Court; she was free to 

present additional theories of her own—particularly by 

amending her complaint when the District Court offered 

her the opportunity to do so. In examining Estrada’s 

complaint through the lens of three different theories of 

injury, the District Court merely fulfilled its duty to 
8

“examine the allegations in the complaint from a number 

of different angles” in order to see if the “purported injury 

can be framed in a way that satisfies Article III.” 

Finkelman v. Nat’l Football League, 810 F.3d 187, 197 

(3d Cir. 2016). 

Under the alternative product theory, a plaintiff 

might successfully plead an economic injury by alleging

that, absent the defendant’s conduct, she would have 

purchased an alternative product that was less expensive.

Under this theory, the economic injury could be calculated 

by determining the difference in price between the 

defendant’s more expensive product and the less 

expensive alternative. Portions of Estrada’s complaint can 

reasonably be read as an attempt to allege this very theory 

of injury. Her complaint states, for example, that had she

“known the truth about the safety of using [Johnson & 

Johnson’s talc-based Baby Powder], she would not have 

purchased the product,” but instead “would have 

purchased an alternative product containing cornstarch

instead of talc.” JA 49.6 According to Estrada’s complaint, 

 6 As explained in Estrada’s complaint, Johnson &

Johnson’s “Baby Powder is made entirely of talc and 

fragrance. Talc is a mineral composed of hydrated 

magnesium silicate that is mined from the earth. It is an 

inorganic material. Talc is used to manufacture goods, 

such as paper making, plastic, paint and coatings, rubber, 

food, electric cable, ceramics, and cosmetics. In its loose 
9

“alternative powder products that are cornstarch[-]based . 

. . do not pose a risk of ovarian cancer and are otherwise 

functionally the same as talc products.” JA 54. Upon

considering these allegations, the District Court concluded 

that Estrada could not avail herself of the alternative 

product theory because she failed “to allege that a 

cornstarch-based product would have been cheaper.” JA 

30. In other words, paying less for Baby Powder than an 

alternative would not constitute an economic injury. 

Under a second theory analyzed by the District 

Court, the premium price theory, a plaintiff may plead an 

economic injury by alleging that the defendant unlawfully 

advertised its product as being “superior” to others. 

Applying this approach, economic injury is calculated as

the unfair “premium” that the plaintiff was unlawfully 

induced to pay. The District Court concluded that Estrada 

did not sufficiently allege an economic injury under this 

theory because she did not claim that Johnson & Johnson 

“advertised Baby Powder as superior to other products,” 

nor did she allege that “she would not have paid a premium 

for Baby Powder” but for such advertisements. JA 35. In 

other words, Estrada identified no unlawful “premium.”

Estrada concedes that her claims do not fall within 

either the alternative product or premium price theories of 

economic injury. Estrada Br. 25 (“Estrada’s injury in this 

 

form and as used in the Baby Powder, talc is known as 

‘talcum powder.’” JA 54.
10

case does not depend on her ability to purchase an 

alternative product at a cheaper price.”); id. at 26 (“[T]he 

district court’s ‘premium price’ methodology has nothing 

to do with Estrada’s claims.”); Reply Br. 12 (“The District 

Court’s ‘Alternative Product’ and ‘Price Premium’ 

Theories Are Irrelevant”). Indeed, Estrada has failed to 

identify either a cheaper alternative or an unlawful 

premium. Any economic injury she may have suffered, 

then, must be conceptualized by applying some other

theory of injury. Accordingly, the third theory of injury

analyzed by the District Court, the benefit of the bargain 

theory, merits our attention. 

Under the benefit of the bargain theory, a plaintiff 

might successfully plead an economic injury by alleging 

that she bargained for a product worth a given value but 

received a product worth less than that value. The 

economic injury is calculated as the difference in value 

between what was bargained for and what was received. 

The District Court concluded that Estrada’s allegations

also failed to fit within this theory of harm because she

purchased and received Baby Powder that successfully did 

what the parties had bargained for and expected it to do: 

eliminate friction on the skin, absorb excess moisture, and 

maintain freshness. JA 17–18, 29–30. On appeal, Estrada 

rejects the significance of the Baby Powder performing 

these functions. She contends that although she received 

Baby Powder that eliminated friction on the skin, absorbed 

excess moisture, and maintained freshness, she was also
11

promised that the Baby Powder would be “safe.” Instead, 

Estrada contends, the product was “unsafe.” Estrada Br. 

19–20. We focus, then, on this contention and consider

whether Estrada has successfully alleged an economic 

injury sufficient to confer Article III standing.7

II. STANDING JURISPRUDENCE

Article III of our Constitution vests “[t]he judicial 

power of the United States” in both the Supreme Court and 

“such inferior courts as the Congress may from time to 

time ordain and establish.” U.S. Const. art. III., § 1. While 

Article III does not outline the exact contours of this

“judicial power,” the Constitution “does specify that this 

power extends only to ‘Cases’ and ‘Controversies.’” 

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) 

(quoting U.S. Const. Art. III, § 2). In order to avoid 

violating this “Cases and Controversies” limitation, a 

party seeking to invoke the federal judicial power must 

first establish that they have “standing” to do so. Id.8 This

 7 “We exercise plenary review over a dismissal for lack of 

standing.” Cottrell v. Alcon Laboratories, 874 F.3d 154, 

161 (3d Cir. 2017)

8 Although Article III does not explicitly refer to 

“standing,” the judicial doctrine derives from the principle 

of separation-of-powers. See, e.g., Clapper v. Amnesty 

Int’l USA, 568 U.S. 398, 408 (2013) (“The law of Article 

III standing, which is built on separation-of-powers 

principles, serves to prevent the judicial process from 
12

standing requirement “limits the category of litigants 

empowered to maintain a lawsuit in federal court to seek 

redress for a legal wrong,” and “ensure[s] that federal 

courts do not exceed their authority as it has been 

traditionally understood.” Id.

To establish standing, a plaintiff must have “(1) 

suffered an injury in fact, (2) that is fairly traceable to the 

 

being used to usurp the powers of the political branches.”); 

John G. Roberts, Jr., Article III Limits on Statutory 

Standing, 42 DUKE L.J. 1219, 1226 (1993) (“If Congress 

directs the federal courts to hear a case in which the 

requirements of Article III are not met, that Act of 

Congress is unconstitutional. . . . [T]he conclusion that 

Article III limits congressional power can hardly be 

regarded as remarkable.”); Antonin Scalia, The Doctrine 

of Standing as an Essential Element of the Separation of 

Powers, 17 SUFFOLK U. L. REV. 881, 881 (1983) (“My 

thesis is that the judicial doctrine of standing is a crucial 

and inseparable element of th[e] principle [of separationof-powers], whose disregard will inevitably produce—as 

it has during the past few decades—an overjudicialization 

of the processes of self-governance.”). While Estrada 

presents theories of harm that rest upon California law 

rather than a statute enacted by Congress, the 

constitutional limitations imposed on our jurisdiction 

remain the same. Federal courts are not at liberty to opine 

on state law absent Article III jurisdiction.
13

challenged conduct of the defendant, and (3) that is likely 

to be redressed by a favorable judicial decision.” Id. This 

appeal focuses on the “‘[f]irst and foremost’ of standing’s 

three elements,” injury in fact. Id. (quoting Steel Co. v. 

Citizens for Better Environment, 523 U.S. 83, 103 (1998)).

Satisfying the injury in fact element requires the party 

seeking to invoke federal jurisdiction to establish three 

sub-elements. Mielo v. Steak ’n Shake, 897 F.3d 467, ___

n.11 (3d Cir. 2018). First, the party must “show that he or 

she suffered ‘an invasion of a legally protected interest.’” 

Spokeo, 136 S. Ct. at 1548 (quoting Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560 (1992)). Second, the party

must show that the injury is both “concrete and 

particularized.” Id. Finally, the party must show that his or 

her injury is “actual or imminent, not conjectural or 

hypothetical.” Id.

Because Estrada is the party seeking to invoke 

federal jurisdiction, “[t]he burden to establish standing” 

rests with her. Finkelman, 810 F.3d at 194. Indeed, she

specifically “bears the burden of showing that [s]he has 

standing for each type of relief sought.” Summers v. Earth 

Island Inst., 555 U.S. 488, 493 (2009) (emphasis added). 

Because Estrada seeks relief in the form of (1) monetary 

damages, (2) restitution, and (3) injunctive relief, JA 79, 

our standing inquiry will consider, in turn, whether 

Estrada has established standing to seek these three 

categories of relief. 
14

III. MONETARY DAMAGES

In considering whether Estrada has standing to seek 

monetary damages, we focus our analysis on two recent 

Article III standing opinions from this Court: Finkelman

v. National Football League, 810 F.3d 187 (3d Cir. 2016), 

and Cottrell v. Alcon Laboratories, 874 F.3d 154 (3d Cir. 

2017). These precedential opinions represent two sides of 

the same coin. And in each, we considered whether the

plaintiffs’ theory of economic injury was too conjectural 

to establish standing. 

While in Cottrell we concluded that the plaintiffs’ 

economic theory of harm was based on more than mere 

conjecture, in Finkelman we concluded just the opposite.

The two holdings can be harmonized, however, to provide

a clear lesson: a plaintiff must do more than offer 

conclusory assertions of economic injury in order to 

establish standing. She must allege facts that would permit 

a factfinder to value the purported injury at something 

more than zero dollars without resorting to mere 

conjecture. Accordingly, Estrada must do more than 

simply characterize her Baby Powder purchases as 

economic injuries; she must allege facts that would permit 

a factfinder to determine that the economic benefit she 

received in purchasing the powder was worth less than the 

economic benefit for which she bargained. A brief 

description of the holdings in Finkelman and Cottrell

brings this lesson into focus.
15

In Finkelman, two plaintiffs alleged that the 

National Football League (“NFL”) had a ticketing policy 

of reserving tickets for League Insiders that resulted in 

Super Bowl tickets being priced higher than they would 

have been had the NFL offered to sell more tickets to the 

general public. Finkelman, 810 F.3d at 190. We concluded 

that one of the plaintiffs in that case, Hoch–Parker, had not 

suffered an economic injury sufficient to confer Article III 

standing. Id. at 196. That was because Hoch–Parker had 

not even attempted to purchase Super Bowl tickets; he had 

only considered the possibility of doing so. Id. at 195–96.

A second plaintiff, Finkelman, presented a closer 

case because he alleged that he had actually purchased 

Super Bowl tickets. Id. at 197. We therefore examined his

allegations through the lens of two different theories of 

economic injury. Under the first theory, Finkelman alleged 

that the NFL’s ticket policy injured him by preventing him 

from successfully purchasing a ticket at face value in a

ticket lottery. Id. But because Finkelman never entered 

that lottery, we concluded that this economic theory failed 

to afford a basis for standing. Id. at 199. His failure to even 

attempt to purchase a ticket through the lottery meant that

“there was always a zero percent chance that he could 

procure a face-price ticket.” Id. at 198. Any economic 

harm that Finkelman might have suffered as a result of not 

purchasing Super Bowl tickets through the lottery was 

therefore not attributable to the NFL’s conduct. Id.
16

Although Finkelman did not participate in the ticket 

lottery, he did allege that he purchased tickets in a 

secondary market where tickets from the lottery were

resold. Id. at 199. Under a different economic theory, then, 

Finkelman contended that the NFL’s ticket policy inflated 

the price of tickets on the resale market in which he had 

participated. Id. at 199. In particular, Finkelman alleged 

that had the NFL originally released more tickets for sale 

to the general public, there would have been greater 

availability of such tickets on the resale market. Id. at 199–

200. That increase in supply, he claimed, would have 

resulted in a reduction in price. Id.

Finkelman contended that his economic injury 

could be calculated as the difference between what he 

actually paid, and what he claimed he should have paid 

had the NFL released more tickets to the general public. 

Id. We concluded that this theory failed to provide 

Finkelman with standing, since “League [I]nsiders . . . had 

the same incentive to resell their tickets as the unnamed 

broker who sold Finkelman his two tickets.” Id. at 200. In 

recognizing that economic incentive, we explained that 

“while it might be the case that the NFL’s withholding [of 

tickets] increased ticket prices on the resale market, it 

might also be the case that it had no effect on the resale 

market.” Id.

9

 9 We further noted that the NFL’s withholding of “tickets

from the general public . . . might have even increased the 
17

In summarizing the issue with Finkelman’s second 

economic theory of injury, we explained that “we have no

way of knowing whether the NFL’s withholding of tickets 

would have had the effect of increasing or decreasing 

prices on the secondary market. We can only speculate—

and speculation is not enough to sustain Article III 

standing.” Id. Although we noted that courts often “credit 

allegations of injury that involve no more than ‘application 

of basic economic logic,’” Id. at 201 (quoting United 

Transp. Union v. I.C.C., 891 F.2d 908, 912 n.7 (D.C. Cir.

1989)), we further explained that “there is a difference 

between allegations that stand on well-pleaded facts and 

allegations that stand on nothing more than supposition.” 

Id. Cognizant that “even at the pleading stage, ‘we need 

not accept as true unsupported conclusions and 

unwarranted inferences,’” Id. at 202 (quoting Maio v. 

Aetna, Inc., 221 F.3d 472, 500 (3d Cir. 2000)), we 

 

supply of tickets on the resale market, leading to lower 

prices.” Finkelman, 810 F.3d at 200. This was because 

League Insiders—who might have received their Super 

Bowl Tickets for free—could have been more inclined to 

resell their tickets than members of the general public 

were, since League Insiders could “pocket[] the entire 

resale price of the ticket as profit.” Id.
18

concluded that Finkelman needed to present the court with 

additional facts in order to establish standing.10

Unlike the economic theories in Finkelman, the 

plaintiffs’ theories in Cottrell were sufficient to establish 

Article III standing. In Cottrell, we held that plaintiffs, 

who purchased prescription eye-drops, had Article III 

standing to sue the manufacturers and distributors of those 

eye-drops. Cottrell, 874 F.3d at 169–70. The plaintiffs 

alleged that “manufacturers and distributors . . . packaged 

[the solution] in such a way that forced [plaintiffs] to waste 

 10 After remand, Finkelman abandoned his first theory of 

economic harm and presented the district court with 

additional facts supporting his second theory. Finkelman 

v. Nat’l Football League, 877 F.3d 504, 512 (3d Cir. 

2017). In particular, “Finkelman added facts alleged by . . 

. an economist who specializes in sports and ticketing on 

the workings of secondary ticket markets in events like the 

Super Bowl.” Id. at 509. That economist explained, inter 

alia, “that under the NFL’s current system, NFL insiders 

sell their tickets to a concentrated group of brokers, who 

in turn charge more for tickets on the secondary market. 

Without the NFL withholding, [the economist] posited

that there would be more fan-to-fan direct sales of tickets, 

cutting out more brokers and allowing for lower prices.” 

Id. Only after the presentation of these additional facts did 

we conclude that Finkelman had Article III standing. Id. at 

513.
19

it.” Id. at 159. Specifically, the plaintiffs claimed that the 

eye medication could only be dispensed from “unfairly” 

designed bottles that released drops larger than the human 

eye could hold at one time. Id. at 159, 161.

We concluded that the Cottrell plaintiffs had 

standing only after we conducted an analysis of their

economic theories—as we did in Finkelman—and 

determined that the Cottrell plaintiffs’ attempt to place an 

economic value on the “wasted” portion of the eye-drops 

was not conjectural. Id. at 168. Estrada attempts to read 

this important limitation out of Cottrell. She contends that 

Cottrell “confirmed that a consumer’s purchase of a 

product based on the manufacturer’s deceptive and unfair 

business practices constitutes injury-in-fact.” Estrada Br. 

2. In so arguing, Estrada overreads our opinion. The 

Cottrell plaintiffs did not have standing simply because 

they purchased a product that a consumer would view as 

flawed. Rather, the plaintiffs had standing only because 

they were unable to use a portion of the eye-drop 

medication they had purchased, and they alleged an 

economic theory that allowed them to value that unused 

portion.

11

 11 Were we to accept Estrada’s argument, one might 

reasonably wonder whether the Cottrell plaintiffs were 

foolish for suing only for the value of the portion of the 

eye-drops that they could not use, rather than suing for the 

value of the entire bottle. But unlike Estrada—who alleges 
20

We did not offer lengthy analyses of the various 

economic theories presented in either Finkelman or

Cottrell because we wished to sound pedantic. We 

conducted those analyses because Article III requires us 

to ensure that plaintiffs present more than merely 

conjectural assertions of injury. Finkelman, 810 F.3d at 

193 (recognizing a “federal court’s obligation to assure 

itself that it has subject matter jurisdiction”).

Estrada nonetheless contends that, unlike the 

plaintiffs in Finkelman and Cottrell, she is not required to

offer any economic theory of injury at the pleading stage. 

As her opening brief puts it, “[t]he amount Estrada and 

other members of the class may receive in damages or 

restitution is a different question than whether [she] has 

standing.” Estrada Br. 26. Estrada further promises that,

“[a]t the appropriate time after discovery,” she will “put 

forth models for calculating damages and restitution that 

are linked to her theory of relief and are based on the 

evidence in the case.” Id. Estrada’s request to indefinitely 

defer what is a pleading obligation is not one we may grant

and still fulfill our constitutional obligations.

To start, Estrada’s promise to provide us with a 

means to conceptualize her injury at some future time does

 

an economic injury which includes portions of a product 

that she actually consumed—the Cottrell plaintiffs alleged 

an economic injury consisting of only the “wasted” 

portion of the product.
21

nothing to assist us in determining whether Estrada has 

standing at this stage. Finkelman, 810 F.3d at 202 (“Nor 

are we persuaded by plaintiffs’ counsel’s promises of 

future expert testimony when no facts supporting 

plaintiffs’ theory of injury appear within the four corners 

of the complaint.”). Our standing inquiry is restricted to

the allegations currently before us.

In order to allege that she has suffered an economic 

injury as a result of simply purchasing Baby Powder, 

Estrada must allege that she purchased Baby Powder that

was worth less than what she paid for. This is not to say 

that a plaintiff is required to allege the exact value of her

economic injury at the pleading stage. Calculating and 

proving damages is indeed one of the major phases of a 

civil trial, and a plaintiff need not develop detailed 

economic models at the pleading stage to establish that she 

has standing. 

But even at the pleading stage, a plaintiff must set 

forth sufficient factual allegations that, if proven true, 

would permit a factfinder to determine that she suffered at 

least some economic injury. Danvers Motor Co. v. Ford 

Motor Co., 432 F.3d 286, 294 (3d Cir. 2005) (recognizing

that establishing an injury in fact requires alleging an 

“identifiable trifle” of injury (quoting Bowman v. Wilson, 

672 F.2d 1145, 1151 (3d Cir. 1982)). The Cottrell

plaintiffs satisfied this relatively low hurdle by providing 

two theories which valued the “wasted” portion of the 
22

medication that they had purchased. Cottrell, 874 F.3d at 

168. One of the plaintiffs in Finkelman accomplished the 

same, after remand, by putting forth analysis by an 

economist who could explain how the NFL’s ticketing 

policy allegedly resulted in increased resale prices. 

Finkelman, 877 F.3d at 509.

It would not have been enough for the plaintiffs in 

Cottrell and Finkelman to simply allege that, although 

they purchased eye-drops and football tickets at a given 

price, they later wished they had not done so. But that is 

as far as Estrada’s allegations of economic injury go. 

Although “[i]njury-in-fact is not Mount Everest,” 

Danvers, 432 F.3d at 294, it is more than a desert mirage. 

While the evidentiary burdens placed on a plaintiff at the 

pleading stage are minimal, our precedent requires the 

plaintiff to do more than simply pair a conclusory assertion 

of money lost with a request that a defendant pay up.

12

 12 See, e.g., Twp. of Lyndhurst, N.J. v. Priceline.com Inc., 

657 F.3d 148, 153, 155 (3d Cir. 2011) (concluding that a 

plaintiff-municipality’s lost tax revenue, which could be 

calculated as the difference between taxes paid on

“wholesale” rates and taxes paid on “retail” rates, 

constituted an economic injury sufficient to confer Article 

III standing); Danvers, 432 F.3d at 292 (referring to 

complaint language alleging that the Ford Motor 

Company’s conduct required the plaintiffs-dealerships to 

make “very significant out-of-pocket investments to 
23

Estrada fails to allege even that the Baby Powder provided 

her with an economic benefit worth one penny less than 

what she paid. We must, therefore, conclude that she 

received the benefit of her bargain and has suffered no 

economic injury. 

But what are we to make of Estrada’s allegations 

that she received only “unsafe” Baby Powder despite 

being promised “safe” Baby Powder? Estrada Br. 19–20. 

 

comply with Ford’s requirements,” and further noting that

“[p]laintiffs even break down the amount of money spent 

per dealership”); see also Rivera v. Wyeth-Ayerst Labs, 

283 F.3d 315, 319 (5th Cir. 2002) (“Merely asking for 

money does not establish an injury in fact.”); O’Neil v. 

Simplicity, Inc., 574 F.3d 501, 504–05 (8th Cir. 2009)

(noting that “[t]his case is similar to other no-injury 

cases,” and concluding that “[t]he [plaintiffs’ product] 

performs just as it was intended, and thus there is no injury 

and no basis for relief”). But see Mazza v. Am. Honda 

Motor Co., 666 F.3d 581, 595 (9th Cir. 2012) (“Plaintiffs 

contend that class members paid more for [a braking 

system] than they otherwise would have paid, or bought 

it when they otherwise would not have done so, because 

Honda made deceptive claims and failed to disclose the 

system’s limitations. To the extent that class members 

were relieved of their money by Honda’s deceptive 

conduct—as Plaintiffs allege—they have suffered an 

‘injury in fact.’” (citation omitted)).
24

Can we not presume that Estrada would spend more for 

safe powder than she would for unsafe powder? Should we 

further presume that this difference in price constitutes an 

economic injury sufficient to confer Article III standing? 

We cannot do so for at least two reasons—the first based 

in law, and the second based in fact.

First, such presumptions would turn the standing 

question on its head. It is well-settled law that “[w]e 

presume that federal courts lack jurisdiction unless the 

contrary appears affirmatively from the record.”

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 

(2006); Renne v. Geary, 501 U.S. 312, 316 (1991) (same); 

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 

(1986) (same); King Bridge Co. v. Otoe Cnty., 120 U.S. 

225, 226 (1887) (same); Pennsylvania Family Inst., Inc. v. 

Black, 489 F.3d 156, 164 (3d Cir. 2007) (same); 

Philadelphia Fed’n of Teachers, Am. Fed’n of Teachers, 

Local 3, AFL-CIO v. Ridge, 150 F.3d 319, 323 (3d Cir. 

1998) (same); Presbytery of N.J. of Orthodox Presbyterian 

Church v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994) 

(same).

We cannot conclude that we have jurisdiction by

presuming that Estrada would pay less for unsafe powder 

when she fails to even plead as much. And our refusal to 

leap to such a conclusion is supported by Estrada’s 

apparent desire to continue purchasing Baby Powder in the 

future despite being aware of its alleged health risks.
25

Estrada Reply Br. 2, 18. It is worthy of note that Estrada’s

desire to continue purchasing Baby Powder is not 

conditioned on the powder being sold at a discounted 

price. In the absence of that condition, we would be hardpressed to presume that Estrada wishes to continue to buy 

Baby Powder at anything other than its current market 

price, i.e., the very price she has repeatedly paid for the 

product over the last six decades.

The second reason we cannot presume that Estrada 

suffered an economic injury by failing to receive “safe” 

powder is factual. Although Estrada contends that Baby 

Powder is “unsafe,” her own allegations require us to 

conclude that the powder she received was, in fact, safe as 

to her. As we described early in this opinion, Estrada did

not allege that she developed ovarian cancer, nor did she 

allege she is at risk of developing ovarian cancer in the 

future as a result of her Baby Powder use. Estrada’s

references to Baby Powder being unsafe as to others are

not relevant to determining whether Estrada has standing

herself. Lujan, 504 U.S. at 563 (1992) (“[T]he ‘injury in 

fact’ test requires more than an injury to a cognizable 

interest. It requires that the party seeking review be 

himself among the injured.”) (quoting Sierra Club v. 

Morton, 405 U.S. 727, 734–35 (1972)).13

 13 The Dissent takes issue with our noting that Estrada 

received Baby Powder that was safe as to her. According 

to the Dissent, Estrada has standing because although she
26

We could not conclude that Estrada has standing 

even if she were to contend that, by “unsafe” powder, she 

meant not only powder that would cause her to develop 

ovarian cancer but also powder that would put her at risk

of developing ovarian cancer. To be sure, had Estrada 

alleged that she was at risk of developing ovarian cancer, 

she may have established standing based on a theory of 

future physical injury. Because litigants and jurists cannot 

 

received safe powder, others allegedly did not. As 

comparative examples, the Dissent refers to a parent who 

purchases organic food that turns out to not be organic, a 

consumer who purchases locksets marketed as being 

“Made in the U.S.A” that ultimately were not so made, and 

an observant Jew who purchases nonkosher meat that was 

improperly labeled as being kosher. But while the Dissent 

might be correct that those hypothetical plaintiffs would 

have standing, Estrada’s case is unlike those examples. 

Instead, Estrada’s claims are similar to those of a parent

who indeed received organic food, a consumer who indeed 

received locksets domestically made, and an observant

Jew who indeed received kosher meat—but who wish to 

sue because they claim that other individuals did not 

similarly receive the benefit of their own bargains.

Although defendants who perform for some consumers 

but not others might be held liable pursuant to other 

mechanisms—by, for example, state attorneys general

filing suit—Article III does not permit private plaintiffs to 

sue for injuries suffered only by others. 
27

predict the future, the law will sometimes permit plaintiffs 

to establish standing based on injuries that are likely to 

occur later in time. 

But Estrada chose not to allege any risk of 

developing ovarian cancer in the future. JA 49–50 

(“Plaintiff is not claiming physical harm or seeking the 

recovery of personal injury damages.”). Given the absence 

of such an allegation, Estrada cannot now claim that she 

was ever at risk of developing ovarian cancer. 

To further illustrate this point, imagine that 

Defendants could go back in time to the 1950s when 

Estrada first purchased Baby Powder. Imagine further that,

the moment before Estrada purchased that first bottle of 

Baby Powder, Defendants informed her that “although this 

powder might cause others to develop ovarian cancer, we 

have seen the future and we can tell you with absolute 

certainty that there is a zero percent chance that this Baby 

Powder will ever cause you to develop ovarian cancer.” 

Can it be said that a plaintiff with a zero percent chance of 

ever experiencing a harm is at “risk” of experiencing that 

harm? The question answers itself. And because Estrada 

does not allege that she suffered harm through an 

increased risk of developing ovarian cancer, we can 

conclude that the powder Estrada purchased was not 

“unsafe.”

In sum, although Estrada characterizes her Baby 

Powder purchases as economic injuries for which she is 
28

entitled to relief, she has failed to allege that the economic 

benefit she received from that powder was anything less 

than the price she paid. In short, she received the benefit 

of her bargain.14 Today, we therefore explicitly hold what 

 14 To this end, we note that our holding does not conflict 

with the Supreme Court of California’s holding in Kwikset 

Corp. v. Superior Court, 246 P.3d 877 (Cal. 2011), a case 

that Estrada favorably cites. In Kwikset, plaintiffs 

purchased locksets labeled “Made in the U.S.A.,” and 

contended that they suffered an economic injury because 

those locksets contained foreign-made parts. Kwikset, 246 

P.3d at 881. Interpreting a state standing provision 

purporting to reflect Article III’s injury in fact 

requirement, the Supreme Court of California concluded 

that these plaintiffs had suffered an economic harm. Id. at 

885. As the Court wrote, “[f]or each consumer who relies 

on the truth and accuracy of a label . . . the economic harm 

is the same: the consumer has purchased a product that he 

or she paid more for than he or she otherwise might have 

been willing to pay if the product had been labeled 

accurately.” Id. at 890. 

The key language in that quote, as we read it, is the 

language that the Court chose to italicize: that a consumer 

has “paid more” for a product than she otherwise would 

have had it been properly labeled. Id. In analyzing whether 

the plaintiffs “paid more” for their locksets, the Kwikset 

Court noted that “[w]hether or not a party who actually 

received the benefit of his or her bargain may lack 
29

might heretofore have been obvious: a plaintiff does not 

have Article III standing when she pleads economic injury

from the purchase of a product, but fails to allege that the 

purchase provided her with an economic benefit worth less 

than the economic benefit for which she bargained.

15

 

standing, in this case, under the allegations of the 

complaint, plaintiffs did not [receive the benefit of their 

bargain].” Id. at 892. Unlike the plaintiffs in Kwikset, who 

failed to receive the benefit of their bargains and thus 

“paid more” for their locksets, Estrada fails to allege the 

same.

15 Although Koronthaly v. L’Oreal USA, Inc., 374 F. 

App’x 257, 258 (3d Cir. 2010) is an unpublished opinion 

and therefore not binding precedent, we find the rationale 

presented in that case to be both persuasive and consistent 

with our holding here. In Koronthaly, the panel considered 

whether a plaintiff had standing to sue a cosmetics

manufacturer for failing to provide warnings about how 

much lead was in lipstick. Koronthaly, 374 F. App’x at 

258. The plaintiff “did not know when she purchased the 

products that they contained any lead, and when she 

learned of the lead content she immediately stopped using 

them. Moreover, had she known of the lead she would not 

have purchased the products.” Id. These facts are nearly 

identical to the operative facts in this appeal. In holding 

that the plaintiff did not have Article III standing in 

Koronthaly, the panel reasoned that “[a]bsent any 
30

IV. RESTITUTION

In addition to seeking monetary damages, Estrada 

seeks disgorgement of revenues and profit pursuant to the 

law of restitution.

16 An examination of Estrada’s

complaint reveals that her restitution claims are supported 

by only two conclusory assertions. First, Estrada alleges 

that Johnson & Johnson has “been able to sell the product 

for more than [it] otherwise would have had [it] properly 

informed consumers about the safety risks.” JA 48.

17

 

allegation that [the plaintiff] received a product that failed 

to work for its intended purpose or was worth objectively 

less than what one could reasonably expect, [the plaintiff] 

has not demonstrated a concrete injury-in-fact.” Id. at 259. 

That same rationale holds true in this case. 

16 JA 79 (seeking “restitution and disgorgement of 

Defendants’ revenues” and further asking the District 

Court to direct “Defendants to identify, with court 

supervision, victims of their conduct and pay them 

restitution and disgorgement of all monies acquired by 

Defendants by means of any act or practice declared by 

this Court to be wrongful”).

 

17 Estrada repeats this same point later in her complaint. 

JA 70 (stating that Johnson & Johnson was “able to charge 

more than [it] otherwise would have had [it] properly 

informed consumers that women who use Baby Powder in 
31

Second, Estrada contends that Johnson & Johnson “reaped 

and continue[s] to reap enormous profits from [its]

deceptive marketing.” JA 70. 

These two statements are nothing more than 

conclusory assertions and are therefore inadequate to 

provide Estrada with Article III standing. See Finkelman 

v. Nat’l Football League, 810 F.3d 187, 201 (3d Cir. 2016) 

(“[W]hen it comes to injury, [Finkelman] looks only to the 

difference between a ticket’s $800 face price and the price 

he paid and says, ‘I have a strong suspicion that this ticket 

would have been cheaper if more tickets had been 

available for purchase by members of the general public.’ 

That claim rests on no additional facts at all. It is pure 

conjecture about what the ticket resale market might have 

looked like if the NFL had sold its tickets differently. 

Article III injuries require a firmer foundation.”).

As Part III explained, in order to seek monetary 

damages, Estrada must do more than simply characterize 

her purchases as economic injuries. The same rationale 

holds true as to her restitution claims—Estrada cannot 

invoke the federal judicial power simply by asserting that 

Johnson & Johnson has earned unlawful profits. Estrada’s 

conclusory assertions are further weakened by her alleged 

desire to purchase Baby Powder in the future despite 

knowing of its alleged health risks. Estrada Reply Br. 2, 

 

the genital area have a significant increased risk of ovarian 

cancer”).
32

18. If Estrada herself wishes to purchase Baby Powder 

whether or not she knows of those health risks, why would

the same not hold true for other consumers? And if other 

consumers were to purchase Baby Powder whether or not 

they were warned of the alleged health risks, how did 

Johnson & Johnson earn unlawful profits by failing to 

offer such warnings? Estrada’s two conclusory assertions 

provide us not even a hint as to how we might answer these

basic questions.18

In sum, Estrada’s restitution claims are based on 

nothing more than mere conjecture. She pleads no facts 

 18 And other questions come to mind. Estrada has observed 

that consumers are already highly informed of the alleged 

health risks associated with Baby Powder given the 

numerous publicly available studies and publications that 

she cites in her complaint. JA 54–67. Estrada’s complaint 

refers to, inter alia, scientific studies from “as early as 

1961,” JA 54, a 1982 New York Times article regarding 

the alleged health risks of talcum powder, JA 67, and a 

pamphlet allegedly distributed “to all ovarian cancer 

patients at nearly every medical facility in the United 

States.” JA 66. Wouldn’t such widespread knowledge 

already have been factored into the current market price of 

Baby Powder? And if so, how did Johnson & Johnson earn 

unlawful profits by withholding information that the 

market might have already taken account of? 
33

upon which a factfinder could conclude that Johnson & 

Johnson has been able to sell more Baby Powder than it

could have had it informed consumers of the alleged health 

risks. We therefore conclude that Estrada lacks standing to 

seek relief in the form of restitution. 

V.INJUNCTIVE RELIEF

Finally, Estrada seeks injunctive relief in the form 

of “corrective advertising” and “enjoining Defendants 

from continuing the unlawful practices” of selling Baby 

Powder without properly warning consumers of the 

alleged health risks. JA 79.19 In order to have standing to 

 19 Estrada also refers in passing to “declaratory” relief 

three times in her complaint. JA 72, 79. All three 

references to “declaratory” relief are made in connection 

with her request for injunctive relief. JA 72 (“declaratory 

and/or injunctive relief”); id. (same); JA 79 (“declaratory 

and injunctive relief as permitted by law or equity”).

Moreover, her third reference to “declaratory” relief 

appears to include both a reference to injunctive relief and 

relief based in restitution. JA 79 (“Awarding declaratory 

and injunctive relief as permitted by law or equity, 

including enjoining Defendants . . . and directing 

Defendants to identify . . . victims of their conduct and pay 

them restitution and disgorgement.”). Because Estrada’s 

references to “declaratory” relief appear to be a mere 

rehashing of her requests for injunctive relief and 
34

seek injunctive relief, Estrada must establish that she is 

“‘likely to suffer future injury’ from the defendant’s 

conduct.” McNair v. Synapse Group Inc., 672 F.3d 213, 

223 (3d Cir. 2012) (quoting City of Los Angeles v. Lyons, 

461 U.S. 95, 105 (1983)). Because Estrada makes clear in 

this very lawsuit that she is well aware of health risks 

associated with using Baby Powder, we readily conclude

that she is not likely to suffer future economic injury.

In McNair, we considered whether “former 

customers” of a magazine company had standing to seek 

injunctive relief. Id. at 215. The defendant-appellee in that 

case, a magazine marketing company by the name of 

Synapse Group Inc., had allegedly sold subscriptions in an 

unlawfully deceptive way.20 Because the plaintiffs were 

former customers who were already aware of Synapse’s 

advertising practices, we concluded that any future injury 

 

restitution, we need not repeat our standing analyses as to

those forms of relief.

20 “The majority of Synapse’s magazine subscriptions are 

offered under what is known as a ‘continuous service plan’ 

whereby a customer’s subscription does not expire unless 

and until the customer opts to cancel it. To secure 

subscribers to those plans, Synapse offers introductory 

promotional offers under which customers can receive 

magazine subscriptions for free or at greatly reduced 

rates.” McNair, 672 F.3d at 216.
35

they might suffer as a result of the company’s advertising 

practices was “wholly conjectural.” Id. at 225; see also id. 

at n.13 (“If Appellants’ suggestion is that they may not be 

able to help themselves when confronted with a really 

good subscription offer, they have still not provided a 

basis for standing. Pleading a lack of self-restraint may 

elicit sympathy but it will not typically invoke the 

jurisdiction of a federal court.”). The premise that former 

customers could again be deceived by the very sort of 

advertising practices over which they were already 

pursuing equitable relief was a premise unmoored from 

reality.

Estrada has sued Johnson & Johnson for failing to 

warn her of certain health risks. To state the obvious, then, 

she is presently aware of those risks. As with the former 

customers in McNair, we wonder how Estrada could

possibly be deceived again into buying Baby Powder 

without being aware of those same risks. She is simply not 

at risk of suffering an economic “injury,” and we will not 

give cognizance to this sort of “stop me before I buy 

again” claim.

Perhaps sensing that McNair presents her with a real 

challenge, Estrada would have us limit McNair to 

instances when plaintiffs do not allege an intention to 

make purchases in the future. Estrada Reply Br. 17–18. 

Because Estrada desires to purchase Baby Powder in the 
36

future, she contends that her case can be distinguished 

from McNair. Id. We decline to so limit McNair. 

To begin with, we noted in McNair that “[p]erhaps 

[the former customers] may accept a Synapse offer in the 

future.” McNair, 672 F.3d at 225. Given that recognition, 

it would require a strained reading of the case to conclude 

that the former customers’ failure to allege a desire to 

subscribe in the future played a key role in our analysis. 

Our holding in McNair was instead more focused on the 

crucial fact that the former customers were already aware 

of the allegedly deceptive business practices from which

they sought future protection. As we wrote in McNair, “the 

law accords people the dignity of assuming that they act 

rationally, in light of the information they possess.” Id.

That same rationale applies in the case at hand. The law 

affords Estrada the dignity of assuming that she acts 

rationally, and that she will not act in such a way that she 

will again suffer the same alleged “injury.” We conclude 

that Estrada does not have standing to seek injunctive 

relief.

CONCLUSION

Estrada contends that other people have suffered 

health complications from using Johnson & Johnson’s 

Baby Powder. Regardless of whether that serious 

allegation has merit, injuries suffered by others do not 

permit us to conclude that Estrada has herself suffered an 

injury in fact. The only injury that Estrada alleges is purely 
37

economic in nature—that is, that had she known more 

about Baby Powder, she would not have purchased it in 

the first place. But Estrada’s wish to be reimbursed for a 

functional product that she has already consumed without 

incident does not itself constitute an economic injury 

within the meaning of Article III.

Estrada fails to provide a non-conjectural basis for 

concluding that she did not receive the benefit of her 

bargain. Estrada similarly fails to show that she is at risk 

of suffering an economic injury in the future, or that 

Johnson and Johnson has sold more Baby Powder than it

otherwise could have. For these reasons, we conclude that 

Estrada does not have Article III standing to seek any of 

the three forms of relief requested in her complaint. The 

judgment of the District Court will be affirmed.