Cindy Adam, individually and on behalf of all others similarly situated v. Frank V. Barone

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
No. 21-2092
_______________________
CINDY ADAM, individually and on behalf of all others
similarly situated,
Appellant
v.
FRANK V. BARONE; KIRILL CHUMENKO; GREEN
POGO LLC (Delaware);
GREEN POGO LLC (New Jersey); NATURAL
BEAUTY LINE LLC; VEGAN BEAUTY LLC;
IMPROVED NUTRACEUTICALS LLC; FORTERA
NUTRA SOLUTIONS LLC; ADVANCED BEAUTY
LLC
_______________________
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 3-20-cv-10321
District Judge: Honorable Michael A. Shipp
__________________________

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Submitted Under Third Circuit L.A.R. 34.1(a)
March 2, 2022
Before: MCKEE, AMBRO, and SMITH, Circuit Judges
(Opinion Filed: July 19, 2022)
Alexander C. Covey
Kneupper & Covey
4475 Peachtree Lakes Drive
Berkeley Lake, GA 30096
Bruce D. Greenberg
Lite DePalma Greenberg & Afanador
570 Broad Street
Suite 1201
Newark, NJ 07102
Counsel for Appellant
Joshua S. Bauchner
Anthony J. D’Artiglio
Ansell Grimm & Aaron
365 Rifle Camp Road
Woodland Park, NJ 07424
Counsel for Appellees
__________________________
OPINION OF THE COURT
__________________________

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SMITH, Circuit Judge.
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. We disagree. We will
thus reverse the District Court’s order and remand with
instructions.
I. Facts1 & Procedural History
1 This appeal comes to us from Defendants’ motion to dismiss,
so we look only to the facts alleged in the operative complaint
and accept them as true. Warren Gen. Hosp. v. Amgen, Inc.,
643 F.3d 77, 90 (3d Cir. 2011) (“[B]ecause standing was
decided at the motion to dismiss stage, the District Court
properly limited itself to the pleadings contained in the
Complaint and the agreements cited therein.”); Siemens USA
Holdings, Inc. v. Geisenberger, 17 F.4th 393, 412 n.25 (3d Cir.
2021) (“Where, as here, the defendants move to dismiss a
complaint under Rule 12(b)(1) for failure to allege subject
matter jurisdiction, we treat the allegations in the complaint as
true and draw all reasonable inferences in favor of the
plaintiff.” (quoting Plains All Am. Pipeline L.P. v. Cook, 866
F.3d 534, 538 (3d Cir. 2017))).

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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

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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
2 False-front schemes involve maintaining and showing banks
a legitimate website that conspicuously displays important
terms and conditions but funneling customers through
webpages that do not include such terms and conditions.

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and granted Defendants’ motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1). This timely
appeal followed.
II. Jurisdiction
The District Court had subject-matter jurisdiction
over Adam’s claims through 28 U.S.C. §§ 1331 & 1367.
Alternatively, the District Court had jurisdiction pursuant
to 28 U.S.C. § 1332(d). We have subject-matter
jurisdiction under 28 U.S.C. § 1291.
III. Standing
“The Constitution gives federal courts the power to
adjudicate only genuine ‘Cases’ and ‘Controversies.’ That
power includes the requirement that litigants have
standing. A plaintiff has standing only if [s]he can ‘allege
personal injury fairly traceable to the defendant’s
allegedly unlawful conduct and likely to be redressed by
the requested relief.’” California v. Texas, 141 S. Ct.
2104, 2113 (2021) (citations omitted); see also Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). So if a
plaintiff does not have standing, courts “lack authority
under Article III of the Constitution to consider the merits”
of any claim. In re Boy Scouts of Am., 35 F.4th 149, 156
(3d Cir. 2022).
The District Court relied on Hayes v. Wal-Mart
Stores, Inc., 725 F.3d 349 (3d Cir. 2013), to conclude that
Defendants’ refund offer—even though it was rejected—

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mooted Adam’s claim and left the court without authority
to consider it. A mootness conclusion implies there was
once standing, but that some event or developments
occurring after litigation commenced deprived the
plaintiff of that standing. See Boy Scouts, 35 F.4th at 156
(“When the requirements necessary for standing at the
start of a case disappear, it becomes moot and no longer
satisfies Article III’s case-or-controversy
requirement[.]”); see also Campbell-Ewald Co. v. Gomez,
577 U.S. 153, 160–61 (2016) (“If an intervening
circumstance deprives the plaintiff of a ‘personal stake in
the outcome of the lawsuit,’ at any point during litigation,
the action can no longer proceed and must be dismissed as
moot.”). Here, the refund offer was made before Adam
filed her lawsuit, so the relevant inquiry is whether Adam
had standing at the time she brought her claim. See
California v. Texas, 141 S. Ct. at 2113. We therefore treat
the District Court’s conclusion that the refund offer
mooted Adam’s claim as a conclusion that Adam lacked
standing at the time she brought her claim.
With that in mind, the familiar inquiry into Adam’s
standing shows she had a basis for initiating her lawsuit.
“To establish Article III standing, a plaintiff must have
‘(1) suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.’”
Mielo v. Steak ‘n Shake Ops., Inc., 897 F.3d 467, 478 (3d
Cir. 2018) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330,
338 (2016)). In this analysis, we are limited to “a

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screening for mere frivolity”—“we must carefully
‘separate our standing inquiry from any assessment of the
merits of the plaintiff’s claim.’” Id. at 478–79 (quoting
Cottrell v. Alcon Lab’ys, 874 F.3d 154, 162 (3d Cir.
2017)). The District Court did not explicitly conduct such
a screening, but Adam’s complaint satisfies all three
standing elements.
First, we consider whether Adam alleged an injury
in fact. This requires a showing that she suffered an
invasion of a legally protected interest, that the harm is
concrete and particularized to her, and that she actually
suffered or is imminently going to suffer that harm. Mielo,
897 F.3d at 478 (quoting Spokeo, 578 U.S. at 338). Adam
has alleged that she suffered financial harm of nearly
$100. “[F]inancial harm is a ‘classic’ and ‘paradigmatic
form’ of injury in fact,” and an allegation of financial harm
almost always satisfies these requirements. Cottrell, 874
F.3d at 163 (brackets omitted) (quoting Danvers Motor
Co. v. Ford Motor Co., 432 F.3d 286, 291 & 293 (3d Cir.
2005)). “Indeed, we have explained that where a plaintiff
alleges financial harm, standing ‘is often assumed without
discussion.’” Id. But the District Court, relying on Hayes,
appears to have concluded that Adam was not injured.
In Hayes, a plaintiff purchased an as-is television
from Sam’s Club and a warranty to cover it. 725 F.3d at
352–53. But Sam’s Club excluded as-is items from
warranty protection. Id. at 353. So when Hayes showed
up seeking a replacement remote control for his as-is

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television under the warranty, Sam’s Club offered him a
refund of the warranty’s cost. Id. Hayes refused that offer,
and Sam’s Club then gave him the new remote he sought.
Id. The end result was a conclusion that Hayes “suffered
no injury arising from his television warranty purchase,”
and that he thus lacked standing to pursue his claim.
Hayes v. Wal-Mart Stores Inc. (Hayes II), Civ. No. 10-
460, 2014 WL 654542, at *3 (D.N.J. Feb. 20, 2014)
(discussing the result of Hayes). The District Court relied
on this conclusion, applying it to the present case and
deciding that it lacked jurisdiction to hear Adam’s claim
because Defendants’ refund offer meant Adam suffered no
injury. Dist. Ct. Op., App’x at A8 (brackets omitted)
(quoting Hayes II, 2014 WL 654542, at *3); id. at A11.
But the District Court erred in its application of Hayes.
In that case, “[w]e agree[d] with the trial court that
Hayes’ purchase of a Service Plan for his television set
[could not] form the basis for class certification because it
was honored when Sam’s Club replaced the missing
remote. Sam’s Club also offered to refund Hayes the cost
of the Service Plan, but Hayes refused to accept the
refund.” 725 F.3d at 361 n.10 (emphasis added). The
reason Hayes was no longer injured was because he
accepted Sam’s Club’s actions in compliance with the
Service Plan and was made whole, not because Sam’s
Club alternatively offered to refund him the cost of the
Service Plan. We thus did not hold that “a refund offer []
made in the ordinary course of business” would

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categorically deprive a plaintiff of her day in court. Cf.
Dist. Ct. Op., App’x at A11.
Here, Adam has not been made whole; she has
neither received a refund nor accepted any alternative to a
refund.3 Defendants merely offered what they believed
would make Adam whole, and “[a]s every first-year law
student learns, the recipient’s rejection of an offer ‘leaves
the matter as if no offer had ever been made.’” Campbell-
Ewald, 577 U.S. at 162 (quoting Genesis Healthcare
Corp. v. Symczyk, 569 U.S. 66, 81 (Kagan, J.,
dissenting)).4 So unlike in Hayes, Adam’s allegations do
3 Of course, in Hayes, the plaintiff did not merely accept an
alternative to a refund. He received exactly what he was
entitled to—a new television remote control as promised by the
warranty he purchased. 725 F.3d at 353. Even had Hayes not
accepted the new remote, the warranty context may be
distinguishable from the case before us: whether someone is
injured when they refuse the other party’s performance under
a contract may be a wholly different question than whether
somebody remains injured after being offered, but refusing,
compensation for alleged wrongdoing. But we need not decide
this because Hayes did accept performance of the warranty
obligation and thus was not injured. Id.
4 Adam insists that Campbell-Ewald governs this case. While
we acknowledge the observations made by the Supreme Court
regarding the basic principles of contract law, we need not rely
on Campbell-Ewald to reach our conclusion. Because we
independently hold that Adam has standing to pursue her
claims, we decline to, in this case, extend Campbell-Ewald

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establish that she has actually suffered the concrete and
particularized harm of having nearly $100 taken from her.
Consequently, Adam has alleged an injury in fact
sufficient to satisfy the first element of standing.
Second, we consider whether that financial harm is
“fairly traceable to” Defendants’ conduct. Mielo, 897 F.3d
at 480–81 (quoting Spokeo, 578 U.S. at 338). This is akin
to but-for causation, not proximate causation.5 Id. at 481
(quoting Finkelman v. Nat’l Football League, 810 F.3d
187, 193–94 (3d Cir. 2016)); Toll Bros., Inc. v. Twp. of
Readington, 555 F.3d 131, 142 (3d Cir. 2009). Defendants
appear to argue that Adam failed to meet even that low
threshold because she was the cause of her own injury, i.e.,
that she “elected to keep the products” and thus prevented
Defendants from giving her a refund so that the only
reason Adam is out $92.94 is because she chose not to take
the steps required to get a refund. This argument, of
from strategic attempts to moot a pending case with a Rule 68
settlement offer to ordinary-course-of-business offers to make
things right before the specter of litigation arises.
5 But-for causation is established whenever an injury would not
have occurred without the alleged action or event. Univ. of
Tex. S.W. Med. Ctr. v. Nassar, 570 U.S. 338, 346–47 (2013).
Proximate causation, on the other hand, is only established
when the injury is sufficiently related to the action or event that
the law deems the injury to have been caused by the action or
event. See Lexmark Int’l, Inc. v. Static Control Components,
Inc., 572 U.S. 118, 132–34 (2014).

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course, assumes that the Defendants were entitled to the
return of the products, which flies in the face of the
complaint’s allegations and so is a faulty premise. Adam
cannot be faulted for standing on the right to freely keep
what was represented to be a free sample. But accepting
as true that Adam was not entitled to keep the products and
that she would not have suffered the $92.94 injury if she
had returned the items,6 Defendants would be correct that
Adam’s actions were a but-for cause of her injury. But
“[t]here may be more than one but for cause of a loss.”
Loughman v. Consol-Pa. Coal Co., 6 F.3d 88, 94 (3d Cir.
1993). So Defendants’ conduct could nevertheless still
provide but-for causation for Adam’s financial harm.
That financial harm was allegedly a result of
Defendants’ actions in misleading her, charging her, and
lying to her bank about the genuineness of the charge. In
other words, Adam alleges that, but for Defendants’
actions, there would be no injury: she would not have been
injured if the products were not advertised in a deceptive
manner; she would not have been injured if she had not
6 Adam argues that she would not have received the refund
even if she had returned the items. Defendants argue that
Clapper v. Amnesty Int’l, 568 U.S. 398, 416 (2013), precludes
her from manufacturing standing by speculating that
Defendants would not honor their word. Because Adam
satisfies the causation element regardless of whether her
concerns about receiving a refund were sufficiently
nonspeculative, we need not resolve that dispute.

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been billed $92.94 without authorization; and she would
not have been injured if her bank was not lied to during the
course of its fraud investigation. Accordingly, even if
Adam’s actions were themselves a but-for cause of her
financial harm, the alleged actions of Defendants were as
well. While Adam will have to do more to establish
causation at the merits stage, her allegations satisfy the
traceability requirement of standing. Mielo, 897 F.3d at
481.
Third, and finally, we consider whether Adam’s
injury “is likely to be redressed by a favorable judicial
decision.” Id. (quoting Spokeo, 578 U.S. at 338). As noted
above, when a plaintiff alleges financial harm, as Adam
did here, we often assume standing without discussion.
Cottrell, 874 F.3d at 163 (brackets omitted). We can do
this because courts routinely provide redress for financial
harms. The District Court could provide redress for
Adam’s financial harm by, for example, ordering
Defendants to pay restitution, as requested in the
complaint. Uzuegbunam v. Preczewski, 141 S. Ct. 792,
802 (2021) (noting petitioners would satisfy redressability
by seeking “one dollar in compensation” for their injury).
So Adam has shown all three elements of standing
by alleging that Defendants’ actions caused her a financial
harm of $92.94. Having done so, she has established that
resolving the present action is within the federal courts’
constitutional authority to adjudicate cases and
controversies. And because the parties identify no

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intervening circumstance arising after the lawsuit was
filed that would deprive Adam of a “personal stake in the
outcome of the lawsuit,” the claim should not have been
dismissed as moot. See Campbell-Ewald, 577 U.S. at
160–61 (quoting Genesis Healthcare, 569 U.S. at 72); Boy
Scouts, 35 F.4th at 156. The District Court thus erred in
dismissing her claims.7
IV. Conclusion
Cindy Adam had standing to bring her claims
regardless of Defendants’ unaccepted offer to provide a
refund before litigation commenced. Accordingly, the
District Court’s May 31, 2021, order will be reversed and
the matter remanded for further proceedings consistent
with this opinion.
7 Because Adam has standing on account of the $92.94 debited
from her account, we need not consider whether the loss of
Adam’s overdraft-forgiveness opportunity, any cost of
shipping the items back to the vendor, the lost time-value of
money, or anything else provides Adam with standing.

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