A consumer purchases a product and later finds out that the product was contaminated with a toxic substance.  Was the consumer injured?  Without knowing more, the answer is “no”—at least for the purposes of establishing standing in the Third Circuit.  In Koronthaly v. L’Oreal USA, Inc., 374 F. App’x 257, 259 (3d Cir. 2010), the court held that mere exposure to lead in lipstick was not sufficient to support standing.  Years later, in In re Johnson & Johnson Talcum Powder Prods. Mktg., Sales Practice & Liability Litigation, 903 F.3d 278, 289, 290 n. 15 (3d Cir. 2018), the court held that mere exposure to a carcinogen in talcum powder is likewise not enough to establish standing.

Following this trend, District Judge Chesler in the District of New Jersey recently dismissed a case where plaintiffs alleged they purchased baby food contaminated with heavy metals.  See Kimca v. Sprout Foods, Inc. d/b/a Sprout Organic Foods, 2022 WL 1213488 (D.N.J. Apr. 25, 2022)

In Kimca, plaintiffs alleged that a manufacturer of baby foods failed to disclose that its products were contaminated with “unsafe levels of heavy metals.”  Id. at *1. Although Judge Chesler agreed that plaintiffs had sufficiently alleged the products contained heavy metals, this fact was not sufficient to support Article III standing to sue for economic damages.  Id. at *4-9. The plaintiffs argued (among other things) that they had been denied the “benefit of the bargain” because they unexpectedly received an uncontaminated product. Id. at *9. The court rejected that theory because plaintiffs did not allege that the contamination resulted in any adverse physical consequences.  Id. Significant to the court’s decision was the fact that the level of heavy metals in defendant’s baby food did not violate any “accepted standard.”  Id. at *6. 

Kimca may present a significant hurdle to plaintiffs asserting class action claims against manufacturers where there are alleged contaminants in a product.  In many of those cases, plaintiffs attempt to assert economic damages based on the theory that consumers received a less valuable product due to unexpected contamination.  In Kimca, however, the court held that the mere presence of a contaminant does not mean that a consumer suffered an injury sufficient to confer Article III standing.  Instead, a consumer must allege a risk of physical harm—by, for example, alleging that the level of contamination exceeded some federal health standard—before bringing class action claims for economic damages.

Photo of Alex Setzepfandt Alex Setzepfandt

Focusing on class actions, Alex Setzepfandt regularly advises clients in the life sciences and financial services industries in complex litigations involving product defects and mass torts. He also has experience representing both plaintiffs and defendants in commercial actions, including breach of contract, insurance…

Focusing on class actions, Alex Setzepfandt regularly advises clients in the life sciences and financial services industries in complex litigations involving product defects and mass torts. He also has experience representing both plaintiffs and defendants in commercial actions, including breach of contract, insurance recovery, and business tort actions.

Alex handles all phases of litigation, including initial pleadings, discovery, trial, and appeals. His experience includes drafting complaints and dispositive motions, arguing discovery motions, taking and defending depositions, negotiating discovery and pre-trial stipulations, and assisting with a broad range of tasks at trial.

Through his active pro bono practice, Alex has honed his oral advocacy skills. His experience includes:

  • Directly examining his client and giving the closing argument at a jury trial in SDNY;
  • Arguing motions in limine and other pre-trial matters;
  • Presenting an oral argument in the 11th Circuit; and
  • Acting as lead counsel at multiple mediations in federal courts.
Photo of Andrew Soukup Andrew Soukup

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which…

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which were defeated through dispositive pre-trial motions.
Andrew is co-chair of the firm’s Class Action Litigation practice group.

Andrew has helped his clients achieve successful outcomes at all stages of litigation, including through trial and appeal. He has helped his clients prevail in litigation against putative class representatives, government agencies, and commercial entities. Representative victories include:

  • Delivered wins in multiple nationwide class actions on behalf of large financial companies related to fees, disclosures, and other banking practices, including the successful defense of numerous lenders accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recent recognition as a “Class Action Group Of The Year.”
  • Successfully defending several of the nation’s leading financial institutions in a wide variety of litigation and arbitration proceedings involving alleged violations of RICO, FCRA, TILA, TCPA, FCBA, ECOA, EFTA, FACTA, and state consumer protection and unfair and deceptive acts or practices statutes, as well as claims involving breach of contract, fraud, unjust enrichment, and other torts.
  • Successfully defended several of the nation’s leading companies and brands from claims that they deceptively marketed their products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Obtained favorable outcomes for numerous clients in commercial disputes raising contract, fraud, and other business tort claims.

Because many of Andrew’s clients are subject to extensive federal regulation and oversight, Andrew has significant experience successfully invoking federal preemption to defeat litigation.

Andrew also advises clients on their arbitration agreements. He has successfully helped numerous clients avoid multi-district class-action litigation by successfully enforcing the institutions’ arbitration agreements.

Clients praise Andrew for his personal attention to their matters, his responsiveness, and his creative strategies. Based on his “big wins in his class action practice,” Law360 named Mr. Soukup a “Class Action Rising Star.

Prior to practicing law, Andrew worked as a journalist.