Scott Holland Jan. 20, 2016, 5:32pm

An Illinois woman’s false advertising complaint against Johnson & Johnson is allowed to proceed after a judge denied the company’s motion to dismiss, saying the woman had done enough so far to allow her to argue Johnson & Johnson misled her and others into buying products the company claimed were clinically proven to help babies sleep better.

Stephanie Leiner, of Chillicothe, filed a class action lawsuit July 2 in federal court in Chicago against N.J.-based Johnson & Johnson Consumer Companies alleging violations of the Illinois Consumer Fraud and Deceptive Business Practice Act and unjust enrichment, among other counts.

Leiner said she and others bought Johnson & Johnson Bedtime Products — specifically, Bedtime Bath and Bedtime Lotion — at a premium price after seeing advertisements claiming such products are “clinically proven” to help babies sleep better. But after using the products in 2014 as part of the company’s recommended three-step nightly routine, she found the products did not help her baby sleep better.

U.S. District Judge Elaine E. Bucklo, who issued the Jan. 12 memorandum opinion rejecting the motion to dismiss, said Johnson & Johnson contended Leiner “lacks standing to seek injunctive relief, since, no longer fooled by defendants’ deceptive statements, she is not likely to purchase the Bedtime Bath Products again.”

Johnson & Johnson also said Leiner lacks standing to pursue class claims for any purchases prior to 2014, but Bucklo said legal precedent makes it clear “standing and entitlement to relief are not the same thing.” She also said the precedents involved courts that “declined to hold that plaintiffs lacked standing based on the fact that they abandoned the product upon their discovery that it had been deceptively labeled or advertised. …

“These courts acknowledged the public policy conundrum inherent in the contrary view: the injunctive provisions of consumer protection statutes such as ICFA could never be invoked to enjoin deceptive practices if the complaining consumer’s standing dissipated the moment she discovered the alleged deception and could no longer be fooled,” Bucklo wrote.

Bucklo said she was satisfied Leiner “alleged a legally cognizable injury resulting” from the claimed deception. Whether or not she is an appropriate class representative should be decided after discovery and more proceedings on class certification, the judge said.

Johnson & Johnson also argued the products are indeed “clinically proven.” But Bucklo said determining the truth of that statement should be left for a later point in the proceedings on the case. The company said the complaint challenges the sufficiency of its clinical testing, but Bucklo noted Leiner “complains that defendant did not clinically test the Bedtime Bath Products at all, but instead tested a ‘routine,’ rendering defendant’s claims that the products had been clinically tested deceptive or misleading.”

Johnson & Johnson also contended Leiner didn’t plead her ICFA claims “with particularity.” But Bucklo strongly disagreed, noting Leiner supplied product labels, indicated where and when she saw them and gave details about the premium pricing for the products in question.

Bucklo also rejected Johnson & Johnson’s final argument, that the unjust enrichment claim must be dismissed, saying she had already found the Leiner’s claims to be valid.

Bucklo also explained why she refused to strike Lainer’s class allegations: “Defendant’s remaining arguments — that the proposed class is over-inclusive, that the class claims will require individualized proof and that some class members may not have relied on the challenged statements, or may have relied on different labels than the ones plaintiff saw — are either premature, do not necessarily preclude class treatment, or both.”

Leiner and the putative class are represented in the action by attorneys from the firms of Pomerantz LLP, of Chicago, and Stephen Zouras LLP, of Chicago.

Johnson & Johnson is defended by the firms of Sidley Austin LLP, of Chicago, and Carlton Fields Jorden Burt LLP, of Los Angeles and Washington, D.C.

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Organizations in this Story

Sidley Austin LLP
1 S Dearborn St
Chicago, IL 60603

Carlton Fields Jorden Burt LLP
4221 West Boy Scout Boulevard
Tampa, FL 33607

Pomerantz LLP
10 South LaSalle Street
Chicago, IL 60603

Stephan Zouras LLP
205 N Michigan Ave
Chicago, IL 60601

Johnson & Johnson
One Johnson & Johnson Plaza New Brunswick, New Jersey 08933

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