MELZER v. JOHNSON & JOHNSON CONSUMER INC.

CourtDistrict Court, D. New Jersey
DecidedApril 26, 2023
Docket3:22-cv-03149
StatusUnknown

This text of MELZER v. JOHNSON & JOHNSON CONSUMER INC. (MELZER v. JOHNSON & JOHNSON CONSUMER INC.) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MELZER v. JOHNSON & JOHNSON CONSUMER INC., (D.N.J. 2023).

Opinion

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

HELENE MELZER, individually and on behalf of all those similarly situated, Plaintiff, Civil Action No. 22-3149 (MAS) (RLS)

y MEMORANDUM OPINION

JOHNSON & JOHNSON CONSUMER INC., Defendant.

SHIPP, District Judge This matter comes before the Court on Defendant Johnson & Johnson Consumer Inc.’s (“JJCI”) Motion to Dismiss Plaintiff Helene Melzer’s (“Melzer”) First Amended Complaint (the “FAC,” ECF No. 21). (ECF No. 25.) Melzer opposed (ECF No. 30), and JJCI replied (ECF No. 37). The Court has carefully considered the parties’ submissions and decides the matter without oral argument pursuant to Local Civil Rule 78.1. For the reasons stated below, the Court grants in part and denies in part JJCI’s Motion. 1. BACKGROUND! This is a class action case about the privacy concerns that come with the alleged use of biometric information and identifiers. JICI’s Neutrogena Skin360 (“Skin360”) is a technology that provides consumers with “a personalized at-home skin assessment” by scanning a consumer’s face and analyzing the facial scan to diagnose skin health issues, and then recommending a skin care

' For purposes of the instant Motion, the Court accepts all factual allegations in the FAC as true. See Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).

regimen consisting of Neutrogena products. (FAC ¥ 66.) In creating this assessment, Skin360

requires consumers, like Melzer, to turn on and use their live camera for 180-degree selfie scans.

(Id. § 67.) Skin360 deploys the Perfect Corp.’s YouCam technology, which is integrated with the

Skin360 application and captures over 200 facial landmark points. id. § 33.) In or around December 2021 or January 2022, Illinois resident Melzer, while located in

Illinois, was one such consumer who used the Skin360 application on her mobile device to obtain

a personalized at-home skin assessment. (See id. § 66.) Melzer alleges that in creating this

assessment, the Skin360 technology scanned, collected, captured, used, and stored in an electronic

database digital copies of Melzer’s unique facial geometry. (Id. J 67.) Yet prior to taking these

biometric identifiers and/or biometric information (as Melzer puts it), JJ CI did not inform Melzer

in any form that her biometrics were being captured, collected, stored, used or disseminated. (/d.

68.) Thus, JJCI neither sought, nor did Melzer ever provide, informed consent relating to the use

of her biometrics, and JJCI did not publish any policy specifically about biometric use. (/d.) Importantly, Melzer alleges that this biometric data is tied to individuals’ names, birthdates, and

other personally identifying information. (Ud. § 6.) Melzer brings this class action suit on behalf of herself and other Illinois consumers for

JICI’s alleged violations of the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS

14/1, et seg. Ud. 1-2.) Specifically, Melzer alleges that JJCI violated BIPA in numerous

2 See Neutrogena Skin360 App, https://www.neutrogena.com/skin360app.html (last visited Feb. 1, 2023) (cited at FAC {{ 32). The Court may consider documents “integral to or explicitly relied upon in the complaint” on a motion to dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (quoting Shaw v, Dig. Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996)). Melzer expressly relies on several Neutrogena websites and uses screenshots from those websites to frame the FAC (see FAC {ff 31-32, 34-35, 38), and this Court may appropriately consider those sources. NJ. Second Amend. Soc’y v. N.J. Press Ass'n, No. 20-5228, 2021 WL 4822050, at *5 (D.N.J. Oct. 15, 2021) (considering websites cited in complaint on a motion to dismiss).

capacities, such as failing to inform Melzer and class members in writing that their biometric

information and/or biometric identifiers were being captured, collected, or stored, among other

alleged privacy concerns. (/d. 7-9.) Melzer initially filed a Complaint on May 26, 2022 (see ECF No. 1), which JJCI moved to

dismiss under Federal Rule of Civil Procedure 12(b)(6).? (ECF No. 17.) Melzer then filed the

instant FAC on August 11, 2022. (See generally FAC.) The FAC adds that Skin360’s facial

assessments were “unique to an individual and used to identify them.” (Ud. § 37.) The FAC alleges five claims: four violations of BIPA Sections 15(a)-(d) (all contained within Count I), and an unjust enrichment claim premised on the same allegations (Count Il). (See id. Ff 81-101.) Now before

the Court is JJCI’s Motion to Dismiss the FAC. (ECF No. 25.) JJCI seeks to dismiss Count I for

failure to state a claim under any provision of BIPA—namely, for failure to state any facts

permitting a plausible inference that Skin360 collects biometric information that can identify an

individual. (See Def.’s Moving Br. 7, ECF No 25-1.) JJCI also contends that Melzer’s Count I

claims pursuant to BIPA Sections 15(c) and 15(d) must be dismissed for additional, independent

reasons, including, respectively, Melzer’s failure to allege that: (1) JJCI profited from transactions

involving biometric data; and (2) that JJCI disseminated biometric data to a third party. (/d. at 2.) JICI moves to dismiss Count II because Melzer’s unjust enrichment claim relies upon her allegedly deficient BIPA allegations. (/d. at 1-2.). JJCI’s Motion to Dismiss is ripe for resolution. IL. LEGAL STANDARD Rule 8(a)(2) “requires only ‘a short and plain statement of the claim showing that the

pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the... claim is and

the grounds upon which it rests.” Bell Ail. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration

3 Hereinafter, all references to a “Rule” or “Rules” refer to the Federal Rules of Civil Procedure.

in original) (quoting Conley v. Gibson, 355 US. 41, 47 (1957)). A district court conducts a

three-part analysis when considering a motion to dismiss pursuant to Rule 12(b)(6). Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011), as amended (June 6, 2011). “First, the [C]ourt must

‘tak[e] note of the elements a plaintiff must plead to state a claim.’” /d. (alteration in original)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Second, the court must accept as true all of

a plaintiffs well-pleaded factual allegations and construe the complaint in the light most favorable

to the plaintiff. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted).

In doing so, however, the court is free to ignore legal conclusions or factually unsupported accusations that merely state “the-defendant-unlawfully-harmed-me.” Iqbal, 556 US. at 678

(citing Twombly, 550 U.S. at 555). Finally, the court must determine whether “the facts alleged in

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