Wednesday, September 06, 2023

plaintiff has standing to seek injunctive relief against allegedly falsely advertised penile implant

Peña v. International Medical Devices, Inc., No. 2:22-cv-03391-SSS-PLAx, 2023 WL 5667568 (C.D. Cal. Apr. 17, 2023)

Plaintiff brought the usual California statutory claims against Penuma, a penile implant/procedure, for alleged misstatements about Penuma’s safety and efficacy. Here, we deal only with the claims for injunctive relief. The Ninth Circuit has held: “[i]n some cases, the threat of future harm may be the consumer’s plausible allegations that she will be unable to rely on the product’s advertising or labeling in the future, and so will not purchase the product although she would like to.” Also, in “other cases, the threat of future harm may be the consumer’s plausible allegations that she might purchase the product in the future, despite the fact it was once marred by false advertising or labeling, as she may reasonably, but incorrectly, assume the product was improved.”  

Peña argued that he has standing to pursue injunctive relief to prevent future harm because “Plaintiff continues to desire a safe, effective penile implant. If the Penuma device and procedure were redesigned to be safe and effective for cosmetic penile enlargement, FDA-cleared for this use, and truthfully marketed, Plaintiff would purchase a Penuma device and procedure in the future.” He also argued that he wouldn’t be able to rely on the ads in the future without injunctive relief. This was sufficient. (Humans really want to believe certain things; I guess I do think there are people who would try again.)

Were legal remedies inadequate? Peña and class members alleged they “suffered irreparable injury” from the alleged misrepresentations and “[t]heir bodily integrity has been violated, creating a substantial risk of permanent injury.”  Coupled with the allegations about the likelihood of future injury absent an injunction, that sufficiently pled an inadequate remedy at law.

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