A recent decision from the Southern District of New York demonstrates the challenges consumers face in seeking injunctive relief on behalf of a class.  On October 21, 2015, in Albert et al. v. Blue Diamond Growers, et al., Case No. 1:15-cv-04087-VM, U.S. District Judge Victor Marrero granted defendants’ motion to dismiss the injunctive relief claim for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

Albert is a consolidated false advertising case about both Blue Diamond’s and WWF Operating Company’s (“WhiteWave”) almond milk products.  Plaintiffs alleged that defendants misrepresented their almond milk products as “heart healthy” and as containing a significant amount of almonds when the milk products only contained two percent almonds.  Plaintiffs challenged defendants’ packaging as well as statements on the defendants’ websites and social media sites.

The court held that plaintiffs lacked standing because the complaint did not contain allegations that plaintiffs were still purchasing defendants’ products or would be purchasing them in the future.  The court noted that the complaint’s allegations demonstrated that each plaintiff had stopped purchasing defendants’ products in 2015 and that, in a letter submitted to the court, the Blue Diamond plaintiffs alleged that they “have suffered the same exact injury that unsuspecting consumers and proposed class members are now suffering.”

While defendants successfully defeated the injunctive relief claim, the case remains because the court declined to dismiss plaintiffs’ New York and California consumer claims under Rule 12(b)(6).