Defendant's Attorney: Joshua S. Bauchner and Anthony J. D'Artiglio

Description: Newark, New Jersey consumer law lawyer represented Plaintiff, who sued Defendants on fraud theories.

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.

* * *

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
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
and granted Defendants’ motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1).

Outcome: Reversed.

Plaintiff's Experts:

Defendant's Experts:

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