Standing on Shaky Ground: Product Recalls Alone Do Not Constitute an Injury in Fact

Cynics have long said that no good deed goes unpunished. Such can be the case with voluntary product recalls, which often engender litigation even by plaintiffs who have suffered no real injury and merely see an opportunity for a windfall. As we recently noted, recalls do not equate with product defects. However, plaintiffs — or their attorneys — act as though purchasing a recalled product is in itself a cause of action that justifies a lawsuit. A recent opinion from the Sixth Circuit offers yet another illustration why that reasoning is unsound and highlights how defendants can attack it early in a case. Specifically, because an allegation that the product a plaintiff purchased was recalled does not raise a plausible inference of injury in fact, a plaintiff lacks standing to assert a claim premised on a recall alone.