Cindy Adam v. Frank V. Barone, et al.

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).

Reversed.