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 No s

. 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 9 2101

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 28 th 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 p urchase d that product ? We hold that such a plaintiff has not suffered an economic injury sufficient to bring a claim in federal court

. More succinctly, b uyer’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 , t he District Court’s judgment will be affirmed.

I. B ACKGROUND

Plaintiff Mona Estrada alleges that a woman’s perineal use of Defendant Johnson & Johnson’s Baby P owder can lead to an increased risk of developing ovarian4 cancer. JA 47

. Without question, t hat is a serious allegation. Yet the validity of Plaintiff’s epid emiological theory is not for this court to decide. 1 Nonetheless, because Estrada has artful ly 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 Cont e 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 individ uals “who assert claims from personal injury.” JA 71.5 someday d eveloping ovarian cancer. Third , this case does not involve a llegations of a defective product. Estrada purchased B aby P owder 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 b een consumed in its entirety. 4 Estrada does

not , for example, seek to be reimbursed for powder that she still possess es 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 a t hand.6 not involve a ny number of other economic theories that might confer Article III standing on other plaintiffs

. F or 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 P owder could lead to an increased risk of developing ovarian cancer, she woul d not have purchased the powder in the f irst 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, t hat 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 t he laws asserted here.” JA 71. However broad this proposed definition

, ap parently 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 Distric t 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 , t he 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 econom ic injury : (1) a lternative product; (2 ) premium p rice ; 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 wa s 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 com plaint 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 to8 “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 , 81 0 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 th is very theory of injury

. Her complaint states , for example, that had she “known the truth about the safety of using [ Johnson & Johnson’s t alc

- based Baby P owder], she would not have purchased the product,” but instead “would have purchased an alternative p roduct 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 loose9 “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. U pon considering these allegations, t he 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.

U nder a second theory analyzed by the District Court, the premium price theory, a plaintiff may plead an economic injury by alleging that the d efendant unlawfully advertised its product as being “superior” to others

. Applying this approach , economic injury is calculated as the unfair “premium” that the pla intiff was unlawfully induced to pay. The District Court concluded that Estrada did not sufficiently allege an economic in jury 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 he r 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’ The ories 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. A ccordingly, the third theory of injury analyzed by the District C ourt, 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

. T he 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 wi thin this theory of harm because she purchased and received Baby P owder 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 1 7

– 18, 29

– 30

. On appe al, 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 also11 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. S TANDING J URISPRUDENCE

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. a rt. III.

, § 1. While Article III does not ou tline 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 C ontroversies” 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 Laboratori es , 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 from12 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 es tablish standing, a plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the

being used to usurp the po wers of the political branches.”); John G. Roberts, Jr., Article III Limits on Statutory Standing , 42 D UKE 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

rega rded as remarkable.”); Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers , 17 S UFFOLK U. L. R EV . 881, 881 (1983) (“My thesis is that the judicial doctrine of standing is a crucial and inseparable element of th[e] p rinciple [of separation

of

- powers], whose di sregard 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 th an a statute enacted by Congress, the constitutional limitations imposed on our jurisdiction remain the same. F ederal 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 sta nding’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 Wil dlife , 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. ” Su mmers 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,

o ur standing inquiry will consider, in turn, whether Estrada has established standing to seek these three categories of relief.14 III. M ONETARY D AMAGES

In considering whether Estrada has standing to seek monetary damages, w e 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 repres ent two sides of the same coin. And i n each , we considered whether the plaintiff s’ theory of economic injury was too conjectural to establish standing.

While i n Cottrell we concluded that the plaintiffs’ economic theory of harm was based o n more than mere conjecture , in Finkelman we concluded just the opposite

. The t wo 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

mor e 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 bring s 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

gene ral 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

o nly 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. W e 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 pur chasing a ticket at face value in a ticket lottery

. Id

. But because Finkelman never entered that lotter y , we concluded that this economic theory failed to afford a basis for standing. Id. at 199. H is failure to even attempt to purchase a ticket through the lottery meant that “there was always a zero percent chance that he could

pro cure 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 A lthough 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 infl ated 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 i ncrease 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 wha t 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] incr eased 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 “tick ets from the general public .

. . might have even increased the17 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

. A lthough 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 betwe en allegations that stand on well

- pleaded facts and allegations that stand on nothing more than supposition.” Id. Cognizant that “e ven at the pleading stage, ‘we need not accept as true unsupported conclusions and unwarranted inferences

, ’” Id. at 202 (quot ing 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 a t 200. This was because League I nsiders

— who might have received their Super Bowl Tickets for free

— could have been more inclined to

re sell their tickets than members of the general public

were , since League I nsiders 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 manufacture r s and distributors of those

eye

- drops

. Cottrell , 874 F.3d at 169

– 70. The plaintiffs al leged 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 . .

. a n 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 con centrated 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 price s.” Id. Only after the presentation of these additional facts did we conclude that Finkelman had Article III standing. Id. at 513.19 it.” I d. at 159 . Specifically, the plaintiffs claimed that t he

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.

W e 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 pract ices constitutes injury

- in

- fact. ” Estrada Br. 2. In so arguing, Estrada ov er r eads our opinion. The Cottrell plaintiffs did not have standing simply because they purchased a product that a consumer would view as flawed

. Rather, t he plaintiffs had standing only because they were unable to use a portion of the eye

- drop medication they had purchased , and the y 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 on ly 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 alleges20 We did not offer lengthy analyses of the various economic theories presented in either Finkelman or Cottrell because we wished to sound pedantic . W e conducted those analyses because Article III requires us to ensu re 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”).

E strada 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 fulfil l our constitutional obligations

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

means to conceptualize her injury at some future time do es

an economic injury which includes portions of a product that she actually consumed

— the Cottrell p laintiffs 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 b efore 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 plead ing stage to esta blish that she has standing

.

But even at the pleading stage, a plaintiff must set forth sufficient factual allegations that, if p roven true, would permit a fact finder 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 the22 medication that they had purchased. Cottrell , 874 F.3d at 168. One of the plaintiff s 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 th e plaintiffs in Cottrell and Finkelman to si mply allege that

, although they purchased eye

- drops and football tickets at a given price, they later wish ed 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” rate s and taxes paid on “retail” rate s , constituted an economic injury sufficient to confer Article III standing); Danvers , 432 F.3d at 292 (referring to complaint language alleg ing that the Ford Motor Company’s conduct required the plaintiffs

- dealerships to make “very significant out

- of

- pocket investments to23 Estrada fails to allege even that the Baby Powder provide d 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 deale rship”); 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 i njury and no basis for relief”). But see Mazza v. Am. Honda Motor Co. , 666 F.3d 581, 5 95 (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 disclos e the system ’ s limitations. To the extent that class members

were r elieved of their money by Honda’ s deceptive conduct

— as Plaintiff s 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? Sh ould 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, s uch presumption s would tu rn 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 ); Be nder 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); Phi ladel phia 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)

.

W e 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 hard

pressed 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 . A lthough Estrada contends that Baby Powder is “unsafe,” her own allegations require us to conclude that the powder she rec eived 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 t he 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 B aby Powder that was safe as to her. According to the Dissent, Estrada has standing because although she26 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 caus e 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 fut ure physical injury. Because litigants and jurists cannot

received safe powder, others allegedly did not. As comparative examples, the Dissent refers to a parent who purchase s organic food that turns out to not be organic, a

consumer who purchase s 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 whi le 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 pare nt who indeed received organic food, a consumer who indeed received loc ksets domestically made, and an observant Jew who indeed received kosher mea t

— but who wish to sue because they claim that other individuals did not similarly receive the benefit of their own bargain s

. Although defendants who perform for some consumers but not others might be held liable pursuant to other mechanisms

— by, for example, s tate 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 devel oping ovarian cancer.

To further illustrate this point , i magine that Defendants could go back in time to the 1950 s 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
P owder wil l 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 b ecause 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 is28 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

, w e 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 lock s ets contained foreign

- made parts. Kwikset

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

purpor ting to reflect Article III’s injury in fact requirement, the Supreme Court of Cali fornia concluded that these plaintiffs had suffered an economic harm

. Id. at 885 . As the Court wrote, “[f]or each consumer who relies on the tr uth 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 lock s ets, the Kwikset Court noted that “[w]hether or not a party who actually received the benefit of his or her b argain may lack29 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 mor e ” for their lock s ets , 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 any30 IV

. R ESTITUTION

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 claim s are su pported by only two conclusory asser tions

. 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 f or 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 rati onale holds true in this case.

16 JA 79 (seeking “restitution and disgo rgement 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 in31 Second, Estrada contends that Johnson & Johnson “reaped and continue [s] to reap enormous profits from [its] deceptive marketing.” JA 70.

The se 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 L eague , 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 tic kets 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 II I 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 assert ing that Johnson & Johnson has earned unlawful profits. Estrada’s conclusory assertions are further weakened by her a lleged 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 consu mers? And if other

consumers were to purchase Baby Powder whether or n ot 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, Est rada’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 talc um powder, JA 67, and a pamphlet allegedly distributed “to all ovarian cancer patients at nearly every medical facility in the Unite d States.” JA 66. Wouldn’t such widespread knowledge already have been factored into the curr ent 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 acc ount 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

. W e therefore conclude that Estrada lacks standing to seek relief in the form of restitution.

V. I NJUNCTIVE R ELIEF

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 I n order to have standing to

19 Estrada also refers in passing to “declaratory” relief three times in her complaint. JA 72, 79. A ll 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 injuncti ve relief and

re lief based i n restitution. JA 79 (“ Awarding declaratory and injunctive relief as permitted by law or equity, including enjoining Defendants . . . and directing Defendants to identify

. . . victim s of their conduct and pay them restitution a nd disgorgement

. ”). Because Estrada’s references to “declaratory” relief appear to be a mere rehashing of her requests for injunctive relief and3 4 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 associat ed 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 subscriptio ns in an unlawfully deceptive way. 20 Because the plaintiffs were former customers who were already a ware of Synapse ’s advertising practices, we conc luded 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

pro motional offers under which customers can receive magazine subscriptions for f ree 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.”). T he premise that former customers could again be deceived by the very sort of advertising practices over which they were already pursuing equitable relief wa s a premise unmoored from reality.

Estrada has sued Johnson & Johnson for failing to warn her of certain heal th risks . T o state the obvious, then, she is presently aware of those risk s

. As with the former customers in McNair

, we wonder how Estrada could possibly be deceived again into buying Baby P owder 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, E strada would have us limit McNair to instances when plainti ffs do not allege an intention to make purchase s in the future. Estrada Reply Br. 17

– 1 8. Because Estrada desire s to purchase Baby Powder in the36 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 customer s ’ 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 o f 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.

C ONCLUSION

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 suf fered an injury in fact. The only injury that Estrada alleges is purely37 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.