Constructive Discovery and Due Diligence Under the Virginia Consumer Protection Act:
A Detailed Commentary on Brandon v. Sensio, Inc. (2d Cir. 2025)

I. Introduction

This commentary examines the United States Court of Appeals for the Second Circuit’s summary order in Brandon v. Sensio, Inc., No. 25-1399 (2d Cir. Dec. 12, 2025), affirming the dismissal of a consumer’s claims arising from severe burn injuries allegedly caused by a defective pressure cooker. Although issued as a nonprecedential summary order under the Second Circuit’s Local Rule 32.1.1, the decision provides a clear and instructive application of Virginia’s discovery rule and equitable tolling principles in the context of consumer-protection and unjust enrichment claims.

The case sits at the intersection of product-injury litigation, state consumer-protection statutes, and procedural limitations issues. It addresses two core questions:

• When does a claim under the Virginia Consumer Protection Act (VCPA) “accrue” for limitations purposes in a product-use injury case where the alleged deception consists of safety-related misrepresentations?
• Under what circumstances, if any, can equitable tolling preserve an unjust enrichment claim under Virginia law where the plaintiff did not sue within the statutory limitations period?

The Second Circuit’s answer is rigorous and plaintiff-unfriendly: (1) a severe, unexpected product failure that causes serious injury itself puts a reasonable consumer on notice to investigate possible deception, triggering the VCPA limitations period; and (2) equitable tolling under Virginia law requires “extraordinary circumstances” beyond ordinary ignorance or lack of awareness, which were not present here.

Although the ruling is not binding precedent, it solidifies—at least persuasively within the Second Circuit—a demanding conception of “due diligence” under Virginia’s discovery rule and confirms a narrow view of equitable tolling in Virginia unjust enrichment claims. These principles are highly relevant to consumer class actions and product-liability-adjacent claims pleaded under state consumer-protection statutes.

II. Case Background

A. Parties and Factual Context

The plaintiff-appellant, Delana Brandon, brought suit individually and on behalf of a putative class of similarly situated consumers. She purchased a pressure cooker manufactured by Sensio, Inc., the defendant-appellee, on July 22, 2018.

On April 7, 2019, while using the pressure cooker, Brandon alleges that the lid “unexpectedly opened during use,” causing its scalding contents to spill onto her, resulting in burns to nearly twenty percent of her body. She attributes this catastrophic failure to a design defect in the locking mechanism that allegedly allowed the lid to open while the contents remained dangerously hot.

Brandon alleges that before the accident she relied on Sensio’s marketing and representations, which she characterizes as “active and persistent promotions” touting the pressure cooker as safe, reliable, and of high quality. She asserts she was completely unaware that the lid could open while the contents were still scalding and assumed, based on Sensio’s representations, that the lid would remain locked until the contents cooled to a safe temperature.

On August 10, 2023, after Brandon’s accident, Sensio recalled several models of its pressure cookers, including the model Brandon had purchased, citing a possible design defect in the lid’s locking mechanism. Brandon alleges that she only then realized that Sensio’s prior claims about safety and reliability were deceptive.

B. Procedural Posture

Brandon filed this action on April 16, 2024, in the United States District Court for the Southern District of New York (before Judge Ronnie Abrams), asserting:

1. A claim under the Virginia Consumer Protection Act (VCPA), Va. Code Ann. § 59.1-200(A)(14), alleging deceptive practices based on Sensio’s alleged misrepresentations and omissions regarding product safety; and
2. A claim for unjust enrichment under Virginia law, seeking restitution of monies paid for the allegedly defective product.

Sensio moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that both claims were untimely under Virginia’s applicable statutes of limitations. The district court agreed and dismissed both claims as time-barred.

On appeal to the Second Circuit, Brandon advanced two principal arguments:

• The district court allegedly used the wrong accrual date for her VCPA claim; she contended that the claim did not accrue until the August 2023 recall, when she purportedly first discovered Sensio’s deception.
• Her unjust enrichment claim, though otherwise untimely, should be saved by equitable tolling under Virginia law.

A panel of Circuit Judges Denny Chin, Richard J. Sullivan, and Maria Araújo Kahn reviewed the dismissal de novo and, in a summary order dated December 12, 2025, affirmed in full.

III. Summary of the Court’s Decision

A. Standard of Review and Pleading Requirements

The panel applied de novo review to the Rule 12(b)(6) dismissal, accepting the complaint’s allegations as true and drawing all reasonable inferences in favor of Brandon, consistent with Palmer v. Amazon.com, Inc., 51 F.4th 491, 503 (2d Cir. 2022). The court reiterated the Twombly/Iqbal pleading standard:

• A complaint must contain enough facts to state a claim to relief that is “plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007);
• The facts must allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Critically, under Virginia’s discovery rule framework, the plaintiff bears the burden to plead facts showing that her claim is timely. Thus, timeliness is not merely an affirmative defense; it is a component of the plaintiff’s burden in fraud- and deception-based claims governed by Va. Code Ann. § 8.01-249(1).

B. Holding on the VCPA Claim

The court held that Brandon’s VCPA claim was time-barred. Under the VCPA:

• Deceptive practices claims are governed by a two-year statute of limitations, Va. Code Ann. § 59.1-204.1(A);
• That limitations period is governed by Virginia’s discovery rule, which provides that a cause of action based upon fraud or deceit accrues when the fraud “is discovered or by the exercise of due diligence reasonably should have been discovered,” Va. Code Ann. § 8.01-249(1).

The court reasoned that, at the latest, Brandon reasonably should have discovered—and thus been on inquiry notice of— Sensio’s alleged deception on April 7, 2019, the date of the accident causing severe burns. Her own allegations made it implausible that she could not have discovered the alleged deception until the August 2023 recall. Because she did not file suit until April 16, 2024—more than two years after April 7, 2019—the VCPA claim was untimely.

C. Holding on the Unjust Enrichment Claim

For the unjust enrichment claim, the court accepted that:

• Under Va. Code Ann. § 8.01-246(4), a three-year limitations period applies to actions “for unwritten contracts, express or implied” (which includes unjust enrichment); and
• The claim accrued on July 22, 2018, the date Brandon purchased the pressure cooker.

Given Brandon’s filing date (April 16, 2024), more than three years had passed. Brandon did not contest the statute or accrual date, but argued that equitable tolling should apply. Applying Virginia’s equitable tolling standards, the court held that:

• Equitable tolling in Virginia requires an “extraordinary circumstance that could not have been avoided by the exercise of due diligence,” Birchwood-Manassas Assocs., L.L.C. v. Birchwood at Oak Knoll Farm, L.L.C., 290 Va. 5, 8 (2015);
• Brandon had not pleaded any such extraordinary circumstance that prevented timely filing.

Accordingly, the unjust enrichment claim was also time-barred and properly dismissed.

IV. Detailed Analysis of the Opinion

A. The VCPA Claim and Virginia’s Discovery Rule

1. Statutory Framework

The VCPA, at Va. Code Ann. § 59.1-200(A)(14), prohibits:

“[D]eception, fraud, false pretense, false promise, or misrepresentation in connection with a consumer transaction.”

Private enforcement is authorized by Va. Code Ann. § 59.1-204 and subject to a two-year limitation period under § 59.1-204.1(A). The VCPA itself does not specify precisely when a deceptive practices claim accrues; instead, the court looked to Virginia’s general accrual provision for fraud-based claims, Va. Code Ann. § 8.01-249(1), which provides that the cause of action accrues when the fraud “is discovered or by the exercise of due diligence reasonably should have been discovered.”

The critical question therefore is not merely whether the plaintiff actually knew of the deception or defect, but when she should have known of it had she exercised “due diligence.”

2. The Plaintiff’s Burden Under Virginia Law: Schmidt v. Household Finance

The Second Circuit relied heavily on the Virginia Supreme Court’s decision in Schmidt v. Household Fin. Corp., II, 276 Va. 108 (2008), which the court cited for two key propositions:

1. The plaintiff bears the burden of proving that, despite the exercise of due diligence, she did not discover the fraud until within the statutory period immediately preceding the commencement of the action.
2. If the plaintiff’s own allegations show that she failed to exercise such diligence or had facts sufficient to put her on inquiry notice earlier, the claim may be dismissed as untimely at the pleading stage.

In Schmidt, the Virginia Supreme Court held that the plaintiff failed to carry this burden and rejected his attempt to invoke the discovery rule to delay accrual. The Second Circuit in Brandon applied this principle directly: because Virginia law places the burden on the plaintiff to show timely discovery under § 8.01-249(1), Brandon had to plead facts establishing that she exercised due diligence but still did not “reasonably” discover the deception until April 16, 2022 (two years before she filed suit).

The opinion emphasizes this allocation of burden in a footnote, underscoring that while statutes of limitation are typically treated as affirmative defenses in federal practice, Virginia’s discovery-rule framework effectively shifts part of that burden to the plaintiff in fraud-based actions. This is an important procedural point for practitioners: in diversity cases applying Virginia law, timeliness under the discovery rule is not simply a defense to be raised later; it must be built into the complaint through detailed factual allegations.

3. Constructive Discovery: The Role of the April 7, 2019 Accident

Brandon’s theory was that she did not discover Sensio’s deception until the August 2023 recall, when Sensio publicly acknowledged a design defect in the locking mechanism. The court rejected this as implausible on the face of her own pleadings.

The panel focused on the dissonance between Brandon’s expectations (based on Sensio’s alleged “promotions touting the quality of its pressure cookers”) and her actual experience on April 7, 2019:

• She alleges that she believed the cooker was safe and that the lid would remain locked until contents cooled; yet
• The lid allegedly “unlocked” while contents remained “scalding hot,” causing burns to almost 20% of her body.

The court reasoned that such a severe, unexpected product failure would necessarily cause a reasonable consumer to question the prior safety representations and to investigate further. In the court’s words, when Brandon suffered serious burns “because of the lid unlocking and splashing the scalding hot contents onto her body,” she:

“reasonably should have questioned Sensio's claims of safety and reliability and taken decisive steps to investigate the cause of her accident.”

Thus, even if she did not subjectively know of a defect or deception at that moment, the law imputes to her constructive knowledge—or at least an obligation to inquire—on April 7, 2019. This is “inquiry notice”: once a reasonable person in her position would suspect that something was wrong, the clock starts running, contingent on what due diligence would reveal.

4. Due Diligence and the Insufficiency of Plaintiff’s Efforts

Brandon alleged that, between the accident and the recall, she took certain steps to investigate:

• She searched online for “Sensio Bella Pressure Cooker,” “Pressure Cooker Recall 2019 List,” and “recalls.gov”;
• She investigated agencies dealing with recalls by visiting the recalls.gov website;
• She visited Sensio’s website, but did not find information indicating that pressure cookers can cause injuries.

The court concluded that these efforts did not amount to “due diligence” under Virginia law, given the gravity of the injury and the direct, startling product malfunction. Citing STB Mktg. Corp. v. Zolfaghari, 240 Va. 140, 144 (1990), the court reiterated that due diligence requires:

“such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent [person] under the particular circumstances.”

Under those “particular circumstances”—a catastrophic product failure resulting in significant bodily harm—“a handful of internet searches” was not enough. Brandon’s search parameters were relatively narrow (e.g., limited to “recall 2019 list” or a specific government website) and she did not, for example, pursue:

• Inspection or evaluation by experts (engineers, technicians, or qualified repair services),
• Consultation with legal counsel,
• Inquiries to consumer-safety agencies beyond recall listings, or
• Further factual investigation into similar incidents or known risks of this product model.

Given the mismatch between the severity of the harm and the limited steps taken, the court held that she had not plausibly alleged that she exercised the level of diligence required to delay discovery past April 2019.

5. Distinguishing Peter Farrell Supercars, Inc. v. Monsen

Brandon relied on the Fourth Circuit’s unpublished decision in Peter Farrell Supercars, Inc. v. Monsen, 82 F. App’x 293 (4th Cir. 2003), to argue that a plaintiff may exercise reasonable diligence yet still not discover fraud for several years.

In Monsen, a car owner experienced mechanical problems years after an engine rebuild and later discovered that the auto shop had fraudulently swapped out his engine. The Fourth Circuit found that the plaintiff had exercised reasonable diligence because he:

• Repeatedly submitted the car to qualified mechanics for inspection and repair as problems continued, and
• Eventually, those ongoing professional inspections led to the discovery of the fraudulent engine swap.

The Second Circuit in Brandon held that Monsen was inapposite. The key difference was the nature and extent of the plaintiff’s investigative efforts. Unlike Brandon’s limited online searches:

• The Monsen plaintiff engaged in persistent, professional-level inquiries into the cause of the problem;
• He took his car multiple times to mechanics who had the expertise to identify hidden fraud related to engine components.

The panel emphasized that Monsen involved sustained, professional investigation over time, whereas Brandon ceased her inquiry after cursory and relatively constrained internet research. Thus, Monsen supports, rather than undermines, the principle that reasonable diligence requires more than superficial inquiry, especially in the face of serious harm.

6. Core Principle Clarified

Taken together, the VCPA discussion crystallizes a key principle regarding Virginia’s discovery rule in fraud and deception claims:

When a consumer suffers a severe, unexplained product failure that is directly inconsistent with prior safety representations, and that failure causes substantial injury, the consumer is placed on inquiry notice of potential deception as of the date of the incident, and must undertake more than cursory or easily exhausted efforts to investigate. Failure to do so will likely render any later-asserted deception claim untimely under the two-year VCPA limitations period.

B. The Unjust Enrichment Claim and Equitable Tolling

1. Accrual and Statute of Limitations Under Virginia Law

The unjust enrichment claim is governed by Va. Code Ann. § 8.01-246(4), which provides a three-year limitations period for actions based on unwritten contracts, express or implied—this includes quasi-contractual claims like unjust enrichment.

Brandon did not dispute that:

• Her unjust enrichment claim accrued on July 22, 2018, when she purchased the pressure cooker; and
• The three-year limitations period would therefore ordinarily expire on July 22, 2021.

Because she filed suit on April 16, 2024, the claim was plainly outside the three-year period. Her sole argument on appeal was that equitable tolling should apply.

2. Choice of Law and Equitable Tolling: Commerzbank AG v. U.S. Bank

The Second Circuit reaffirmed that, in diversity cases, state law governs:

• The length and application of statutes of limitations, and
• Associated doctrines concerning accrual, tolling, and related timing issues.

Citing Commerzbank AG v. U.S. Bank, N.A., 100 F.4th 362, 379 (2d Cir. 2024), the court noted:

“In diversity cases, state statutes of limitations govern the timeliness of state law claims, and state law determines the related questions of what events serve to commence an action and to toll the statute of limitations.”

Thus, although the case was in federal court, Virginia’s equitable tolling standards—not any federal equitable tolling doctrine—controlled the analysis.

3. Virginia’s Equitable Tolling Standard: Birchwood-Manassas and Chesapeake & Ohio Ry. Co. v. Willis

The court applied Virginia’s stringent conception of equitable tolling, articulated in Birchwood-Manassas Assocs., L.L.C. v. Birchwood at Oak Knoll Farm, L.L.C., 290 Va. 5 (2015):

To invoke equitable tolling, a plaintiff must show “the existence of an extraordinary circumstance that could not have been avoided by the exercise of due diligence.”

The court also echoed the long-standing equitable maxim quoted in Chesapeake & Ohio Ry. Co. v. Willis, 200 Va. 299, 306 (1958):

“Equity aids the vigilant, not those who sleep on their rights.”

These authorities together make clear that:

• Equitable tolling is an exceptional remedy, not a routine extension of limitations periods;
• Mere lack of knowledge, failure to investigate, or ignorance of legal rights is generally insufficient;
• The plaintiff must show both an extraordinary obstacle and the exercise of due diligence despite that obstacle.

4. Application to Brandon’s Unjust Enrichment Claim

The court concluded that Brandon:

• Identified no “extraordinary circumstance” that prevented her from filing an unjust enrichment claim in a timely manner;
• Did not allege facts demonstrating that she exercised diligence but was nevertheless thwarted by something beyond her control.

Instead, the factual narrative suggests that Brandon simply did not appreciate or pursue her unjust enrichment theory within the three-year period after purchase. This type of delay is exactly what Virginia’s strict approach to equitable tolling refuses to excuse.

Thus, the court held that equitable tolling was unavailable, and the unjust enrichment claim remained time-barred.

C. The Federal Procedural Overlay: Twombly/Iqbal and Limitations at the Pleading Stage

Although the primary substantive issues are governed by Virginia law, the procedural posture is federal: a Rule 12(b)(6) motion to dismiss. The opinion underscores a few important points about how statutes of limitations and discovery-rule issues can be resolved at the pleading stage under federal standards:

• A limitations bar can support dismissal under Rule 12(b)(6) when “the allegations in the complaint” show that the claim is time-barred, even accepting those allegations as true and drawing inferences in favor of the plaintiff.
• Where state law (as in Virginia) places on the plaintiff the burden to show timely discovery and due diligence, that burden must be satisfied in the pleadings. Conclusory assertions of late discovery, unsupported by factual allegations of diligent investigation, will not suffice under the plausibility standard.
• The court here found Brandon’s assertion—that she reasonably could not have discovered Sensio’s deception until the August 2023 recall—to be implausible in light of her own factual allegations about:
  • Her expectations of product safety,
  • The violent and injurious nature of the product failure, and
  • The limited investigative steps she undertook.

In this way, the opinion highlights that plaintiffs in consumer and product litigation must plead not only the substantive elements of deception or unjust enrichment, but also a detailed, plausible narrative of their investigative efforts and the timing of discovery where a limitations issue is foreseeable.

V. Precedents and Authorities Discussed

A. Federal Pleading and Review Standards

• Palmer v. Amazon.com, Inc., 51 F.4th 491 (2d Cir. 2022).
  Cited for the de novo review standard on Rule 12(b)(6) dismissal and the requirement to accept allegations as true and draw reasonable inferences for the plaintiff.
• Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
  Cited for the “plausibility” standard—complaints must allege enough facts to state a claim that is plausible on its face.
• Ashcroft v. Iqbal, 556 U.S. 662 (2009).
  Cited for the principle that factual allegations must support a reasonable inference of liability, not merely the possibility of misconduct.

B. Virginia Discovery Rule and Due Diligence

• Schmidt v. Household Fin. Corp., II, 276 Va. 108 (2008).
  Central to the court’s analysis of the discovery rule under Va. Code Ann. § 8.01-249(1). The case confirms that:
  • In fraud-based actions governed by the discovery rule, the plaintiff bears the burden of establishing timely filing; and
  • A plaintiff who fails to allege facts showing that, despite due diligence, discovery occurred within the limitations window cannot survive a motion to dismiss.
• STB Mktg. Corp. v. Zolfaghari, 240 Va. 140 (1990).
  Quoted for its articulation of “due diligence” as the measure of prudence and activity reasonably expected of a person under the circumstances. This definition underpins the court’s conclusion that Brandon’s limited investigation was insufficient given the seriousness of her injuries.
• Peter Farrell Supercars, Inc. v. Monsen, 82 F. App’x 293 (4th Cir. 2003) (unpublished).
  Distinguished by the court. In Monsen, the plaintiff’s repeated use of qualified mechanics to investigate ongoing car problems met the due diligence requirement, even though suit followed years later. In contrast, Brandon’s brief and limited online searches did not rise to the same level of diligence.

C. Virginia Limitations, Tolling, and Choice of Law

• Va. Code Ann. § 59.1-200(A)(14).
  Prohibits deception, fraud, false pretense, false promise, or misrepresentation in consumer transactions.
• Va. Code Ann. § 59.1-204.1(A).
  Establishes a two-year statute of limitations for VCPA claims.
• Va. Code Ann. § 8.01-249(1).
  Provides that fraud-based causes of action accrue when the fraud is discovered or reasonably should have been discovered with due diligence.
• Va. Code Ann. § 8.01-246(4).
  Imposes a three-year limitations period on actions based on unwritten contracts, express or implied, including unjust enrichment.
• Commerzbank AG v. U.S. Bank, N.A., 100 F.4th 362 (2d Cir. 2024).
  Cited for the Erie principle that in diversity cases, state law governs statutes of limitation and tolling doctrines.
• Birchwood-Manassas Assocs., L.L.C. v. Birchwood at Oak Knoll Farm, L.L.C., 290 Va. 5 (2015).
  Articulates Virginia’s strict equitable tolling standard: a plaintiff must show an extraordinary circumstance that could not have been avoided by due diligence.
• Chesapeake & Ohio Ry. Co. v. Willis, 200 Va. 299 (1958).
  Quoted for the principle that “equity aids the vigilant, not those who sleep on their rights,” reinforcing the narrow scope of equitable tolling under Virginia law.

VI. Clarifying Key Legal Concepts

A. Discovery Rule and Inquiry Notice

Under a “discovery rule,” a cause of action does not necessarily accrue on the date of the wrongful act or injury, but when the plaintiff:

• Discovers the injury and its cause, or
• Reasonably should have discovered them through due diligence.

Virginia codifies this in Va. Code Ann. § 8.01-249(1) for fraud and deception claims. Two sub-concepts are important:

1. Actual discovery: When the plaintiff subjectively learns of the fraud or deception.
2. Constructive discovery or inquiry notice: When a reasonable person in the plaintiff’s position, given the known facts, would suspect that something is wrong and take steps to investigate.

In Brandon, the accident’s severity and its inconsistency with touted safety features triggered inquiry notice, regardless of whether Brandon subjectively recognized that Sensio’s marketing was deceptive at that exact moment.

B. Due Diligence

“Due diligence” in this context refers to the effort a reasonable person would make to investigate once confronted with facts suggesting a possible wrong:

• It is not enough to make minimal or superficial efforts and then stop;
• The diligence required is calibrated to the seriousness and obviousness of the problem. A serious injury from a household product calls for more probing inquiry than a trivial inconvenience.

The Second Circuit, applying Virginia law, held that:

In the face of a severe product failure causing significant bodily harm, “a handful of internet searches” is not adequate due diligence to delay accrual of a deception claim.

C. Equitable Tolling

Equitable tolling allows a court to extend a limitations period where:

• The plaintiff has diligently pursued her rights, and
• Some extraordinary circumstance, beyond her control, prevented timely filing.

Under Virginia’s especially strict approach:

• The standard is not satisfied by ordinary ignorance, lack of sophistication, or passive delay;
• There must be a concrete, exceptional obstacle—such as concealment that could not be uncovered with diligence, or a legal or practical impossibility of suing—paired with continued effort despite that obstacle.

In Brandon, the absence of any alleged extraordinary barrier foreclosed equitable tolling, even though the plaintiff claimed she did not appreciate the nature of her claims until after the recall.

D. Unjust Enrichment

Unjust enrichment is an equitable, quasi-contract doctrine. Under Virginia law, it arises when:

• The defendant has received and retained a benefit from the plaintiff,
• Under circumstances that make it unjust for the defendant to retain that benefit without paying for it.

In consumer product cases, a typical unjust enrichment theory is that the consumer paid money for a product based on representations that turned out to be false or misleading, so the seller’s retention of that payment is unjust.

Even though unjust enrichment is equitable in nature, it is still subject to a statutory limitations period in Virginia (three years under § 8.01-246(4)), and is not immune from time bars simply because it sounds in equity.

VII. Impact and Implications

A. Practical Consequences for Consumer and Product-Injury Litigation

While Brandon v. Sensio is a nonprecedential summary order, its reasoning has significant practical implications—particularly for plaintiffs’ lawyers and defense counsel in consumer and product-related litigation governed by Virginia law.

1. Heightened Pleading Burden on Timeliness

For plaintiffs:

• Complaints must do more than identify the deceptive act and injury; they must:
  • Describe when and how the plaintiff discovered the deception, and
  • Detail the efforts taken to investigate once red flags appeared.
• Conclusory allegations that the plaintiff “did not discover” the fraud until a later event (such as a recall or public announcement) will likely be rejected as implausible if serious, earlier incidents pointed to problems.

For defendants:

• Brandon supports the strategy of raising limitations defenses at the Rule 12(b)(6) stage where the complaint itself discloses both the date of injury or purchase and insufficient post-injury investigation.
• Defendants can argue that severe, unexpected product failures necessarily trigger inquiry notice, starting the limitations clock earlier than plaintiffs might claim.

2. Implications for Recall-Based Discovery Arguments

Many consumer plaintiffs argue that they did not discover defects or deception until the manufacturer announced a recall. Brandon suggests that, at least under Virginia law:

• A recall is not necessarily the earliest possible discovery date;
• When an injury-producing event plainly suggests a possible defect—or contradicts explicit safety representations—the law may deem the plaintiff on notice years earlier.

Thus, plaintiffs cannot rely on later recalls to reset or significantly delay the accrual date where the underlying facts of injury themselves strongly indicate a possible defect or misrepresentation.

B. Narrow Space for Equitable Tolling in Virginia

Brandon reinforces Virginia’s already strict stance regarding equitable tolling:

• Equitable tolling will rarely rescue stale unjust enrichment—or similar quasi-contractual—claims;
• Plaintiffs must identify concrete, extraordinary barriers to timely litigation, not merely their subjective lack of awareness or late strategic recognition of a particular legal theory.

This has a chilling effect on attempts to revive old purchases or transactions via unjust enrichment theories in Virginia, especially where:

• The purchase occurred many years before suit; and
• There is no allegation of active concealment or impossibility of asserting the claim earlier.

C. Persuasive Authority Value of Nonprecedential Orders

Under Federal Rule of Appellate Procedure 32.1 and the Second Circuit’s Local Rule 32.1.1, this summary order:

• Does not have precedential effect (i.e., it is not binding on future panels in the Second Circuit); but
• May be cited in briefs as persuasive authority, provided it is properly identified as a “SUMMARY ORDER.”

Despite its nonprecedential status, the order’s detailed application of Virginia’s discovery rule and equitable tolling standards makes it a useful persuasive citation in:

• Other Second Circuit cases involving Virginia law, particularly consumer and fraud claims; and
• State and federal courts considering similar questions of when a plaintiff should have discovered deception following a serious product-related injury.

VIII. Conclusion

Brandon v. Sensio, Inc. presents a relatively straightforward fact pattern—a consumer badly burned by an allegedly defective pressure cooker—but the case carries significant doctrinal weight in how it applies Virginia’s discovery rule and equitable tolling to consumer-protection and unjust enrichment claims.

On the VCPA claim, the Second Circuit held that:

• Virginia’s two-year limitations period, governed by the discovery rule in Va. Code Ann. § 8.01-249(1), placed the burden on Brandon to plead that she exercised due diligence and still could not have discovered the alleged deception until within two years of filing; and
• In light of the catastrophic product failure and severe injuries she suffered in April 2019, coupled with only cursory investigative efforts, it was implausible that she did not or could not reasonably discover Sensio’s alleged deception until the August 2023 recall.

On the unjust enrichment claim, the court applied Virginia’s three-year limitations period in Va. Code Ann. § 8.01-246(4) and rejected equitable tolling, emphasizing that:

• Equitable tolling under Virginia law is reserved for truly “extraordinary circumstances” that cannot be overcome through due diligence; and
• Brandon alleged no such extraordinary barrier to timely filing.

Substantively, the opinion underscores the following key messages:

• Severe, unexpected product failures that contradict prior safety representations place consumers on inquiry notice and trigger obligations of diligent investigation;
• Minimal investigative steps—such as a few targeted internet searches—will rarely satisfy the due diligence requirement when the injury is grave and directly tied to the product’s core safety function;
• Plaintiffs asserting fraud, deception, or unjust enrichment under Virginia law must treat timeliness as a central pleading issue, not an afterthought.

Although classified as a nonprecedential summary order, Brandon v. Sensio provides a clear, rigorous application of Virginia’s discovery and tolling doctrines to modern consumer product litigation and will likely serve as a persuasive benchmark for similar disputes in the Second Circuit and beyond.