Ineffective Mosquito Repellent Suit Partly Survives MTD

On Wednesday a federal court situated in Brooklyn, New York partly granted a motion to dismiss filed by defendants AC2T Inc., its president and spokesperson Jeremy Hirsch, and Bonner Analytical Testing Co. in a defective product case. The testing company and president were dismissed for lack of personal jurisdiction, but the case will proceed against AC2T after the court found that the complaint plausibly stated a claim for relief.

The plaintiff, a purchaser of the mosquito repellent made and sold by AC2T, tested by Bonner, and endorsed by Hirsch, filed suit against the defendants in September 2020 alleging that “Spartan Mosquito Eradicator” failed to work as promised. Specifically, the plaintiff asserts that the sugar, salt, and yeast composition cannot kill a mosquito in the manner advertised, as a matter of biology.  In support of this contention, the plaintiff cites studies showing the inefficacy of the combined ingredients.

Bonner and individual defendant Hirsch moved to dismiss for lack of personal jurisdiction. AC2T moved for dismissal for failure to state a claim. First, the court considered whether the allegations before it were sufficient to confer general or specific jurisdiction over the testing company and the manufacturing company’s president.

The opinion stated that absent from the complaint were allegations that the defendants’ contacts with New York were “‘so continuous and systematic as to render them essentially at home’ here.” As for specific jurisdiction, the complaint reportedly did not identify any actions undertaken by either Bonner or Hirsch in New York that would subject them to the court’s jurisdiction.

The plaintiff nevertheless argued that each are subject to jurisdiction “based upon a theory of conspiracy jurisdiction,” the court explained before rejecting the argument as vague and conclusory. The opinion noted that the complaint neither includes a count of conspiracy nor does it allege an agreement between the three defendants. After batting down one more “novel” argument, the court dismissed Bonner and Hirsch for want of jurisdiction.

Next, the court ruled that the plaintiff plausibly alleged the falsity of AC2T’s statements about Spartan’s effectiveness. Noting that a motion to dismiss is a low bar, the court held that the tests cited by the plaintiff, “indicating that Spartan’s individual active ingredients cannot work in the manner that Spartan’s detailed advertising represents,” constituted an allegation sufficient to withstand the dismissal bid.

The plaintiff is represented by Bursor & Fisher P.A. and the defendants by Kasowitz Benson Torres LLP and Venable LLP.