PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________________

No. 21-2092

_______________________

CINDY ADAM, individually and on behalf of all others 

similarly situated,

 Appellant

v. 

FRANK V. BARONE; KIRILL CHUMENKO; GREEN 

POGO LLC (Delaware);

GREEN POGO LLC (New Jersey); NATURAL 

BEAUTY LINE LLC; VEGAN BEAUTY LLC; 

IMPROVED NUTRACEUTICALS LLC; FORTERA 

NUTRA SOLUTIONS LLC; ADVANCED BEAUTY 

LLC

_______________________

On Appeal from the United States District Court 

for the District of New Jersey

District Court No. 3-20-cv-10321

District Judge: Honorable Michael A. Shipp

__________________________
2

Submitted Under Third Circuit L.A.R. 34.1(a)

March 2, 2022

Before: MCKEE, AMBRO, and SMITH, Circuit Judges

(Opinion Filed: July 19, 2022)

Alexander C. Covey

Kneupper & Covey

4475 Peachtree Lakes Drive

Berkeley Lake, GA 30096

Bruce D. Greenberg

Lite DePalma Greenberg & Afanador

570 Broad Street

Suite 1201

Newark, NJ 07102

 Counsel for Appellant

Joshua S. Bauchner

Anthony J. D’Artiglio 

Ansell Grimm & Aaron

365 Rifle Camp Road

Woodland Park, NJ 07424

 Counsel for Appellees

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OPINION OF THE COURT

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3

SMITH, Circuit Judge.

Cindy Adam was charged nearly $100 for what she 

believed were free samples of beauty products. After 

complaining about the charge, she was offered the chance 

to return the items so that she might obtain a refund. Adam 

refused and eventually filed this lawsuit. The United 

States District Court for the District of New Jersey

dismissed her complaint, concluding that she lacked

standing because she refused Defendants’ offer of a refund 

in the ordinary course of business. We disagree. We will 

thus reverse the District Court’s order and remand with 

instructions.

I. Facts1 & Procedural History

1 This appeal comes to us from Defendants’ motion to dismiss, 

so we look only to the facts alleged in the operative complaint

and accept them as true. Warren Gen. Hosp. v. Amgen, Inc., 

643 F.3d 77, 90 (3d Cir. 2011) (“[B]ecause standing was 

decided at the motion to dismiss stage, the District Court 

properly limited itself to the pleadings contained in the 

Complaint and the agreements cited therein.”); Siemens USA 

Holdings, Inc. v. Geisenberger, 17 F.4th 393, 412 n.25 (3d Cir. 

2021) (“Where, as here, the defendants move to dismiss a 

complaint under Rule 12(b)(1) for failure to allege subject 

matter jurisdiction, we treat the allegations in the complaint as 

true and draw all reasonable inferences in favor of the 

plaintiff.” (quoting Plains All Am. Pipeline L.P. v. Cook, 866 

F.3d 534, 538 (3d Cir. 2017))).
4

In August 2017, Adam came across an 

advertisement for free samples of “Nuvega Lash” beauty 

products. The advertisement implied that she need only 

pay shipping and handling. So Adam ordered two free 

samples and purchased a third item. She was consequently 

charged: $4.99 for the first sample’s shipping; $4.95 for 

the second sample’s shipping; and $14.99 for the 

purchased item. Adam does not take issue with any of 

these charges; she expected all of them.

Soon thereafter, Adam was unexpectedly charged 

$94.97. That charge was reversed, but on that same day, 

Adam was also charged $92.94. That unexpected charge

resulted in an overdraft of her checking account, leading 

to a $34.00 bank fee. It was only her entitlement to an 

annual overdraft-forgiveness opportunity that allowed her 

to avoid paying the fee. But the $92.94 charge remained. 

Adam called the company that marketed and sent 

her Nuvega Lash products, allegedly Defendant Fortera 

Nutra Solutions LLC. The customer service 

representative told Adam during that phone call that “she 

had agreed at the time of purchase to pay the full amount 

that she had been charged if she kept the ‘free samples.’” 

First Amended Complaint, App’x at A30 ¶ 54. Adam 

responded that she did not agree—and would not have 

agreed—to such an arrangement. She asked to speak to a 

manager during the phone call, but one was never made 

available to her. The representative told Adam that she 

would need to return the items before any refunds could 
5

be issued. But Adam, not trusting the company that she 

believed was trying to scam her out of nearly $100, refused 

to return the items. 

In the midst of this, Adam called her bank and

contested the $92.94 charge as fraudulent. Her bank 

temporarily reversed the charge but ultimately reinstated 

it, concluding that it was legitimate. Adam contends that

her bank was misled by Defendants’ “false-front scheme”

2

and that the charge would have been reversed but for their 

misrepresentations. 

Adam then filed a putative class-action suit in the 

United States District Court for the Northern District of 

California, which transferred the case to the District of 

New Jersey on Defendants’ motion. The operative 

complaint, filed in May 2020, alleges violations of (or 

conspiracy to violate or aiding and abetting violation of):

multiple California laws; the Electronic Fund Transfer 

Act, 15 U.S.C. §§ 1693–1693r; the RICO Act, 18 U.S.C. 

§§ 1961–1968; and various consumer protection laws, all

on behalf of a nationwide class. In October 2020, 

Defendants moved to dismiss Adam’s claims pursuant to

Federal Rule of Civil Procedure 12(b)(1) & (6). The 

District Court concluded the action was non-justiciable 

2 False-front schemes involve maintaining and showing banks 

a legitimate website that conspicuously displays important 

terms and conditions but funneling customers through 

webpages that do not include such terms and conditions. 
6

and granted Defendants’ motion to dismiss pursuant to 

Federal Rule of Civil Procedure 12(b)(1). This timely

appeal followed. 

II. Jurisdiction

The District Court had subject-matter jurisdiction 

over Adam’s claims through 28 U.S.C. §§ 1331 & 1367. 

Alternatively, the District Court had jurisdiction pursuant 

to 28 U.S.C. § 1332(d). We have subject-matter 

jurisdiction under 28 U.S.C. § 1291.

III. Standing

“The Constitution gives federal courts the power to 

adjudicate only genuine ‘Cases’ and ‘Controversies.’ That 

power includes the requirement that litigants have 

standing. A plaintiff has standing only if [s]he can ‘allege 

personal injury fairly traceable to the defendant’s 

allegedly unlawful conduct and likely to be redressed by 

the requested relief.’” California v. Texas, 141 S. Ct. 

2104, 2113 (2021) (citations omitted); see also Lujan v. 

Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). So if a 

plaintiff does not have standing, courts “lack authority 

under Article III of the Constitution to consider the merits” 

of any claim. In re Boy Scouts of Am., 35 F.4th 149, 156 

(3d Cir. 2022).

The District Court relied on Hayes v. Wal-Mart 

Stores, Inc., 725 F.3d 349 (3d Cir. 2013), to conclude that 

Defendants’ refund offer—even though it was rejected—
7

mooted Adam’s claim and left the court without authority 

to consider it. A mootness conclusion implies there was 

once standing, but that some event or developments 

occurring after litigation commenced deprived the 

plaintiff of that standing. See Boy Scouts, 35 F.4th at 156

(“When the requirements necessary for standing at the 

start of a case disappear, it becomes moot and no longer 

satisfies Article III’s case-or-controversy 

requirement[.]”); see also Campbell-Ewald Co. v. Gomez, 

577 U.S. 153, 160–61 (2016) (“If an intervening 

circumstance deprives the plaintiff of a ‘personal stake in 

the outcome of the lawsuit,’ at any point during litigation, 

the action can no longer proceed and must be dismissed as 

moot.”). Here, the refund offer was made before Adam 

filed her lawsuit, so the relevant inquiry is whether Adam 

had standing at the time she brought her claim. See 

California v. Texas, 141 S. Ct. at 2113. We therefore treat 

the District Court’s conclusion that the refund offer 

mooted Adam’s claim as a conclusion that Adam lacked 

standing at the time she brought her claim. 

With that in mind, the familiar inquiry into Adam’s 

standing shows she had a basis for initiating her lawsuit. 

“To establish Article III standing, a plaintiff must have 

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

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

likely to be redressed by a favorable judicial decision.’” 

Mielo v. Steak ‘n Shake Ops., Inc., 897 F.3d 467, 478 (3d 

Cir. 2018) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 

338 (2016)). In this analysis, we are limited to “a 
8

screening for mere frivolity”—“we must carefully 

‘separate our standing inquiry from any assessment of the 

merits of the plaintiff’s claim.’” Id. at 478–79 (quoting 

Cottrell v. Alcon Lab’ys, 874 F.3d 154, 162 (3d Cir. 

2017)). The District Court did not explicitly conduct such 

a screening, but Adam’s complaint satisfies all three 

standing elements.

First, we consider whether Adam alleged an injury 

in fact. This requires a showing that she suffered an 

invasion of a legally protected interest, that the harm is

concrete and particularized to her, and that she actually 

suffered or is imminently going to suffer that harm. Mielo, 

897 F.3d at 478 (quoting Spokeo, 578 U.S. at 338). Adam 

has alleged that she suffered financial harm of nearly 

$100. “[F]inancial harm is a ‘classic’ and ‘paradigmatic 

form’ of injury in fact,” and an allegation of financial harm 

almost always satisfies these requirements. Cottrell, 874 

F.3d at 163 (brackets omitted) (quoting Danvers Motor 

Co. v. Ford Motor Co., 432 F.3d 286, 291 & 293 (3d Cir. 

2005)). “Indeed, we have explained that where a plaintiff 

alleges financial harm, standing ‘is often assumed without 

discussion.’” Id. But the District Court, relying on Hayes,

appears to have concluded that Adam was not injured. 

In Hayes, a plaintiff purchased an as-is television 

from Sam’s Club and a warranty to cover it. 725 F.3d at 

352–53. But Sam’s Club excluded as-is items from 

warranty protection. Id. at 353. So when Hayes showed 

up seeking a replacement remote control for his as-is 
9

television under the warranty, Sam’s Club offered him a 

refund of the warranty’s cost. Id. Hayes refused that offer, 

and Sam’s Club then gave him the new remote he sought. 

Id. The end result was a conclusion that Hayes “suffered 

no injury arising from his television warranty purchase,”

and that he thus lacked standing to pursue his claim. 

Hayes v. Wal-Mart Stores Inc. (Hayes II), Civ. No. 10-

460, 2014 WL 654542, at *3 (D.N.J. Feb. 20, 2014)

(discussing the result of Hayes). The District Court relied 

on this conclusion, applying it to the present case and

deciding that it lacked jurisdiction to hear Adam’s claim

because Defendants’ refund offer meant Adam suffered no

injury. Dist. Ct. Op., App’x at A8 (brackets omitted) 

(quoting Hayes II, 2014 WL 654542, at *3); id. at A11. 

But the District Court erred in its application of Hayes. 

In that case, “[w]e agree[d] with the trial court that 

Hayes’ purchase of a Service Plan for his television set 

[could not] form the basis for class certification because it 

was honored when Sam’s Club replaced the missing 

remote. Sam’s Club also offered to refund Hayes the cost 

of the Service Plan, but Hayes refused to accept the 

refund.” 725 F.3d at 361 n.10 (emphasis added). The 

reason Hayes was no longer injured was because he 

accepted Sam’s Club’s actions in compliance with the 

Service Plan and was made whole, not because Sam’s 

Club alternatively offered to refund him the cost of the 

Service Plan. We thus did not hold that “a refund offer [] 

made in the ordinary course of business” would 
10

categorically deprive a plaintiff of her day in court. Cf. 

Dist. Ct. Op., App’x at A11. 

Here, Adam has not been made whole; she has 

neither received a refund nor accepted any alternative to a 

refund.3 Defendants merely offered what they believed 

would make Adam whole, and “[a]s every first-year law 

student learns, the recipient’s rejection of an offer ‘leaves 

the matter as if no offer had ever been made.’” CampbellEwald, 577 U.S. at 162 (quoting Genesis Healthcare 

Corp. v. Symczyk, 569 U.S. 66, 81 (Kagan, J., 

dissenting)).4 So unlike in Hayes, Adam’s allegations do 

3 Of course, in Hayes, the plaintiff did not merely accept an 

alternative to a refund. He received exactly what he was 

entitled to—a new television remote control as promised by the 

warranty he purchased. 725 F.3d at 353. Even had Hayes not 

accepted the new remote, the warranty context may be 

distinguishable from the case before us: whether someone is 

injured when they refuse the other party’s performance under 

a contract may be a wholly different question than whether 

somebody remains injured after being offered, but refusing, 

compensation for alleged wrongdoing. But we need not decide

this because Hayes did accept performance of the warranty 

obligation and thus was not injured. Id.

4 Adam insists that Campbell-Ewald governs this case. While 

we acknowledge the observations made by the Supreme Court 

regarding the basic principles of contract law, we need not rely 

on Campbell-Ewald to reach our conclusion. Because we

independently hold that Adam has standing to pursue her

claims, we decline to, in this case, extend Campbell-Ewald 
11

establish that she has actually suffered the concrete and 

particularized harm of having nearly $100 taken from her. 

Consequently, Adam has alleged an injury in fact 

sufficient to satisfy the first element of standing.

Second, we consider whether that financial harm is 

“fairly traceable to” Defendants’ conduct. Mielo, 897 F.3d 

at 480–81 (quoting Spokeo, 578 U.S. at 338). This is akin 

to but-for causation, not proximate causation.5 Id. at 481

(quoting Finkelman v. Nat’l Football League, 810 F.3d 

187, 193–94 (3d Cir. 2016)); Toll Bros., Inc. v. Twp. of 

Readington, 555 F.3d 131, 142 (3d Cir. 2009). Defendants 

appear to argue that Adam failed to meet even that low 

threshold because she was the cause of her own injury, i.e., 

that she “elected to keep the products” and thus prevented 

Defendants from giving her a refund so that the only 

reason Adam is out $92.94 is because she chose not to take 

the steps required to get a refund. This argument, of 

from strategic attempts to moot a pending case with a Rule 68 

settlement offer to ordinary-course-of-business offers to make 

things right before the specter of litigation arises.

5 But-for causation is established whenever an injury would not 

have occurred without the alleged action or event. Univ. of 

Tex. S.W. Med. Ctr. v. Nassar, 570 U.S. 338, 346–47 (2013). 

Proximate causation, on the other hand, is only established 

when the injury is sufficiently related to the action or event that 

the law deems the injury to have been caused by the action or 

event. See Lexmark Int’l, Inc. v. Static Control Components, 

Inc., 572 U.S. 118, 132–34 (2014).
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course, assumes that the Defendants were entitled to the 

return of the products, which flies in the face of the 

complaint’s allegations and so is a faulty premise. Adam 

cannot be faulted for standing on the right to freely keep 

what was represented to be a free sample. But accepting 

as true that Adam was not entitled to keep the products and 

that she would not have suffered the $92.94 injury if she 

had returned the items,6 Defendants would be correct that 

Adam’s actions were a but-for cause of her injury. But 

“[t]here may be more than one but for cause of a loss.” 

Loughman v. Consol-Pa. Coal Co., 6 F.3d 88, 94 (3d Cir. 

1993). So Defendants’ conduct could nevertheless still 

provide but-for causation for Adam’s financial harm. 

 That financial harm was allegedly a result of

Defendants’ actions in misleading her, charging her, and 

lying to her bank about the genuineness of the charge. In 

other words, Adam alleges that, but for Defendants’ 

actions, there would be no injury: she would not have been 

injured if the products were not advertised in a deceptive 

manner; she would not have been injured if she had not 

6 Adam argues that she would not have received the refund 

even if she had returned the items. Defendants argue that 

Clapper v. Amnesty Int’l, 568 U.S. 398, 416 (2013), precludes 

her from manufacturing standing by speculating that 

Defendants would not honor their word. Because Adam 

satisfies the causation element regardless of whether her 

concerns about receiving a refund were sufficiently 

nonspeculative, we need not resolve that dispute.
13

been billed $92.94 without authorization; and she would 

not have been injured if her bank was not lied to during the 

course of its fraud investigation. Accordingly, even if 

Adam’s actions were themselves a but-for cause of her 

financial harm, the alleged actions of Defendants were as 

well. While Adam will have to do more to establish 

causation at the merits stage, her allegations satisfy the

traceability requirement of standing. Mielo, 897 F.3d at 

481. 

Third, and finally, we consider whether Adam’s 

injury “is likely to be redressed by a favorable judicial 

decision.” Id. (quoting Spokeo, 578 U.S. at 338). As noted 

above, when a plaintiff alleges financial harm, as Adam 

did here, we often assume standing without discussion. 

Cottrell, 874 F.3d at 163 (brackets omitted). We can do 

this because courts routinely provide redress for financial 

harms. The District Court could provide redress for 

Adam’s financial harm by, for example, ordering 

Defendants to pay restitution, as requested in the 

complaint. Uzuegbunam v. Preczewski, 141 S. Ct. 792, 

802 (2021) (noting petitioners would satisfy redressability 

by seeking “one dollar in compensation” for their injury).

So Adam has shown all three elements of standing 

by alleging that Defendants’ actions caused her a financial 

harm of $92.94. Having done so, she has established that 

resolving the present action is within the federal courts’ 

constitutional authority to adjudicate cases and 

controversies. And because the parties identify no 
14

intervening circumstance arising after the lawsuit was 

filed that would deprive Adam of a “personal stake in the 

outcome of the lawsuit,” the claim should not have been 

dismissed as moot. See Campbell-Ewald, 577 U.S. at 

160–61 (quoting Genesis Healthcare, 569 U.S. at 72); Boy 

Scouts, 35 F.4th at 156. The District Court thus erred in 

dismissing her claims.7 

IV. Conclusion

Cindy Adam had standing to bring her claims

regardless of Defendants’ unaccepted offer to provide a 

refund before litigation commenced. Accordingly, the 

District Court’s May 31, 2021, order will be reversed and 

the matter remanded for further proceedings consistent 

with this opinion.

7 Because Adam has standing on account of the $92.94 debited 

from her account, we need not consider whether the loss of 

Adam’s overdraft-forgiveness opportunity, any cost of 

shipping the items back to the vendor, the lost time-value of 

money, or anything else provides Adam with standing.