2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-26-2010

Ruth Koronthaly v. Loreal USA, Inc.

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4625

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Recommended Citation

"Ruth Koronthaly v. Loreal USA, Inc." (2010). 2010 Decisions. Paper 1628.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1628
 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-4625

 

RUTH KORONTHALY, individually and on behalf

of all others similarly situated,

 

 Appellant

 

v.

L'OREAL USA, INC., a New York Corporation; 

THE PROCTER AND GAMBLE DISTRIBUTING LLC, 

an Ohio Corporation

 

On Appeal from the United States District Court

for the District of New Jersey

(District Court No. 2-07-cv-05588)

District Judge: Dennis M. Cavanaugh

 

Argued on November 10, 2009

Before: AMBRO, GARTH, and ROTH, Circuit Judges

(Opinion filed: March 26, 2010)

Philip A. Tortoreti, Esquire

Daniel R. Lapinski, Esquire (Argued)

Wilentz, Golman & Spitzer, P. A.

90 Woodbridge Center Drive

Suite 900, Box 10

Woodbridge, NJ 07095

Counsel for Appellant Ruth Koronthaly
2

Scott L. Haworth, Esquire (Argued)

Nora Coleman, Esquire

Sedgwick, Detert, Moran & Arnold

125 Broad Street, 39 Floor th

New York, NY 10004

Anthony J. Anscombe, Esquire

Sedgwick, Detert, Moran & Arnold, LLP

One North Wacker Drive, Suite 4200

Chicago, IL 60606

James H. Keale, Esquire 

Sedgwick, Detert, Moran & Arnold, LLP

Three Gateway Center, 12 Floor th

Newark, NJ 07102

Counsel for Appellee L’Oreal USA, Inc. 

Michael R. McDonald, Esquire (Argued)

Damian V. Santomauro, Esquire

Gibbons, P. C.

One Gateway Center

Newark, NJ 07102-5310

Counsel for Appellee The Procter & Gamble Distributing, LLC

 

O P I N I O N 

 

ROTH, Circuit Judge:

Ruth Koronthaly appeals from the District Court’s order granting defendant

Procter & Gamble Company’s (“P&G”) motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(1) for lack of standing and defendant L’Oreal USA, Inc.’s
3

(“L’Oreal”) motion to dismiss pursuant to Rule 12(b)(6). We exercise plenary review

over a grant of a motion to dismiss for lack of standing and review the factual elements

underlying the standing determination for clear error. Goode v. City of Phila., 539 F.3d

311, 316 (3d Cir. 2008). The burden of proving each standing element rests with the

plaintiff. Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 291 (3d Cir. 2005). 

We assume the parties’ familiarity with the factual and procedural history, which we

describe only as necessary to explain our decision. We will affirm the District Court’s

order. 

Koronthaly purchased lipstick products manufactured, marketed, and distributed

by appellees L’Oreal. and P&G. These lipstick products contain lead. The FDA does not

regulate the presence of lead in lipstick, but Koronthaly asserts that the lipstick contains

lead in far greater amounts than permitted in candy by the FDA. Neither the packaging

nor the products themselves contained any indication that the lipstick contained any lead.

Koronthaly 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.

In November 2007, Koronthaly filed a class action complaint in the District Court

for the District of New Jersey. She invoked the District Court’s jurisdiction under the

Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). After it was amended in March 2008,

her complaint asserted claims for: (1) violation of the New Jersey Consumer Fraud Act,
4

N.J.S.A. § 56:8-1 et seq.; (2) breach of implied warranty under the New Jersey UCC; (3)

breach of implied warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. §

2310(d)(1); (4) strict liability; (5) negligence per se; (6) unjust enrichment; and (7)

injunctive relief. 

L’Oreal and P&G filed motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and

12(b)(1), respectively. On July 25, 2008, the District Court granted those motions,

finding that Koronthaly lacked standing to pursue the action. On October 24, 2008, the

District Court denied Koronthaly’s motion for reconsideration, and her motion for leave

to file a second amended complaint. Koronthaly then filed a timely notice of appeal.

To prove constitutional standing, Koronthaly must demonstrate (1) an injury-infact that is actual or imminent and concrete and particularized, not conjectural or

hypothetical, (2) that is fairly traceable to the defendant’s challenged conduct, and (3) is

likely to be redressed by a favorable judicial decision. Summers v. Earth Island Inst., ---

U.S. ---, 129 S. Ct. 1142, 1149 (2009). In this case, standing founders on the first

requirement, injury-in-fact.

Koronthaly’s argument that she was misled into purchasing unsafe lipstick

products is belied by the FDA’s report finding that the lead levels in the Defendants’

lipsticks were not dangerous and therefore did not require warnings. Moreover,

Koronthaly concedes that she has suffered no adverse health effects from using the

lipsticks. Koronthaly therefore has asserted only a subjective allegation that the trace
5

amounts of lead in the lipsticks are unacceptable to her, not an injury-in-fact sufficient to

confer Article III standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992)

(injury-in-fact must be accompanied by “continuing, present adverse effects”) (citation

omitted); Georgine v. Amchem Prods., Inc., 83 F.3d 610, 636 (3d Cir. 1996) (Wellford, J.,

concurring) (“Fear and apprehension about a possible future physical or medical

consequence . . . is not enough to establish an injury in fact.”). 

Furthermore, to the extent that Koronthaly contends that the injury-in-fact was the

loss of her “benefit of the bargain,” she mistakenly relies on contract law. See Rivera v.

Wyeth-Ayerst Labs., 283 F.3d 315, 319-21 (5th Cir. 2002) (plaintiff, whose only claim

was that she “would like her money back” for having purchased a product that failed to

make certain disclosures and allegedly was defective, did not have an injury-in-fact

sufficient to create standing). Her lipstick purchases were not made pursuant to a

contract, and therefore she could not have been denied the benefit of any bargain. Absent

any allegation that she received a product that failed to work for its intended purpose or

was worth objectively less than what one could reasonably expect, Koronthaly has not

demonstrated a concrete injury-in-fact. 

For the foregoing reasons, we will affirm the order of the District Court granting

the Defendants’ motions to dismiss.