SEAN JOHN, individually and on behalf of all others similarly situated, Plain tiff-Appellant,
v.
WHOLE FOODS MARKET GROUP, INC., Defendant-Appellee.[*] JOSEPH BASSOLINO, individually and on behalf of all others similarly situated, Consolidated Plaintiff,
Argued: October 17, 2016
Plaintiff-appellant
Sean John brings this putative class action alleging that
grocery stores in New York operated by defendant-appellee
Whole Foods Market Group, Inc. systematically overstated the
weights of pre-packaged food products and overcharged
customers as a result. The District Court dismissed
John's suit at the pleading stage for lack of Article III
standing. Because we conclude that John plausibly alleged an
injury in fact, we VACATE and
REMAND for further proceedings consistent
with this opinion.
Douglas G. Blankinship, Finkelstein, Blankinship,
Frei-Pearson & Garber, LLP, White Plains, NY, for
Plaintiff-Appellant.
David
E. Sellinger (Gregory J. Casas, Elliot H. Scherker, Brigid F.
Cech Samole, on the brief), Greenberg Traurig, LLP, New York,
NY, Austin, TX, Miami, FL, for Defendant-Appellee.
Before: KEARSE, JACOBS, and LOHIER, Circuit Judges.
LOHIER, Circuit Judge.
Sean
John filed a putative class action alleging that New York
City grocery stores operated by Whole Foods Market Group,
Inc. systematically overstated the weights of pre-packaged
food products and overcharged customers as a result. The
United States District Court for the Southern District of New
York (Engelmayer, J.) granted Whole Foods'
motion to dismiss John's complaint for lack of Article
III standing because he failed to allege a sufficient injury
in fact. Because we conclude that John plausibly alleged an
injury in fact, we VACATE and
REMAND for further proceedings consistent
with this opinion.
Background
Because
John appeals from a judgment dismissing the complaint on the
pleadings, we accept as true the facts alleged in the
complaint, "and we may consider documents incorporated
into or integral to the complaint." WC Capital
Mgmt., LLC v. UBS Sec., LLC, 711 F.3d 322, 325 (2d Cir.
2013).
1.
Alleged Facts
In 2014
and 2015 John "routinely shopped" at two Whole
Foods stores in Manhattan and made "regular[]
purchase[s]" of pre-packaged products, including
"pre-packaged cheese and cupcakes approximately one or
two times per month." "Pre-packaged" food
products are those that Whole Foods weighs and prices prior
to shelving, assigning a price to each package based on the
weight of the food.
Whole
Foods routinely inflated the weight listed on the labels of
pre- packaged products, and, as a result of the mislabeling,
overcharged unwitting customers for pre-packaged food. The
complaint does not identify a specific food purchase as to
which Whole Foods overcharged John. Instead, it more
generally describes pervasive overcharging of pre-packaged
food throughout Whole Foods' stores in New York City. But
the complaint does attach a June 2015 press release of the
New York City Department of Consumer Affairs (the
"DCA") entitled "Department of Consumer
Affairs Investigation Uncovers Systemic Overcharging for
Pre-packaged Foods at City's Whole Foods." As its
title suggests, the press release announced the DCA's
investigation of overcharging by Whole Foods and its
preliminary findings that Whole Foods' New York City
stores "routinely overstated the weights of its
pre-packaged products-including meats, dairy and baked
goods." App'x 26. The press release elaborated on
these findings:
DCA tested packages of 80 different types of pre-packaged
products and found all of the products had packages with
mislabeled weights. Additionally, 89 percent of the packages
tested did not meet the federal standard for the maximum
amount that an individual package can deviate from the actual
weight, which is set by the U.S. Department of Commerce. The
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