124 F. Supp. 3d 360
D.N.J.
2015
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Background

  • Three related putative consumer class actions (Whole Foods, Wegmans, ACME) allege breads/bakery items were advertised as "made in house" or "fresh" but actually were parbaked, frozen, or produced off-site; plaintiffs seek CFA, TCCWNA, and breach of express warranty relief.
  • Plaintiffs defined statewide New Jersey classes (and debit/credit-card subclasses) covering purchases since Dec. 14, 2008; complaints allege generic store signage and higher prices for "store-baked" items but do not identify specific ads linked to specific purchases.
  • Court issued sua sponte Order to Show Cause on whether class allegations are ascertainable; parties briefed and argued; ACME moved to strike certain declarations.
  • The court concluded class allegations were not ascertainable because retail records would not show whether a given purchase was of an item actually advertised as "fresh"/"made in house" at the time, and many purchasers (cash buyers) cannot be reliably identified.
  • The court also dismissed named plaintiffs’ individual claims (CFA, TCCWNA, breach of express warranty, injunctive and declaratory relief) for pleading failures: lack of particularity under Rule 9(b) for fraud-based CFA counts, no adequately pleaded ascertainable loss, and no pleaded causal nexus tying specific misrepresentations to specific purchases.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether class definitions are ascertainable under Rule 23 Class members can be identified from defendants' records (credit/debit/loyalty) and signage evidence Records won't show which purchases were tied to specific "fresh/in-store" representations; cash purchasers unidentifiable Class allegations STRICKEN for lack of ascertainability
Whether plaintiffs pleaded unlawful conduct with required particularity (Rule 9(b)) for CFA claims General allegations and exemplar signs suffice to put defendants on notice Plaintiffs fail to identify which plaintiff saw which specific sign, where and when CFA claims DISMISSED for failure to satisfy Rule 9(b) and plead unlawful conduct
Whether plaintiffs alleged an ascertainable loss under the CFA (out-of-pocket or benefit-of-the-bargain) Paid a premium for "fresh" store-made products and would not have bought or paid as much Complaints do not identify products, prices, or a comparable promised product to quantify loss Ascertainable-loss element NOT pleaded; CFA claims dismissed
Whether plaintiffs pleaded causation between misrepresentations and loss Plaintiffs would not have purchased but for defendants' misrepresentations No allegations tying particular statements to particular purchases (when/where seen) Causation NOT pleaded; CFA claims dismissed

Key Cases Cited

  • Barnes v. American Tobacco Co., 161 F.3d 127 (3d Cir. 1998) (Rule 23(b)(2) for primarily injunctive relief)
  • Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir. 1968) (23(b)(2) inappropriate where relief is predominately monetary)
  • Byrd v. Aaron’s, Inc., 784 F.3d 154 (3d Cir. 2015) (ascertainability requires objective class definition and feasible identification method)
  • Hayes v. Wal‑Mart Stores, Inc., 725 F.3d 349 (3d Cir. 2013) (Rule 23 rigorous analysis)
  • Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) (need reliable mechanism to identify class members)
  • Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012) (ascertainability problems where records do not identify purchasers of specific defect-related items)
  • Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility standard for Rule 12(b)(6))
  • Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (legal conclusions not presumed true on dismissal)
  • Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007) (Rule 9(b) applies to CFA claims)
  • Thiedemann v. Mercedes‑Benz USA, LLC, 183 N.J. 234 (N.J. 2005) (ascertainable loss requirement under CFA)
  • Smajlaj v. Campbell Soup Co., 782 F. Supp. 2d 84 (D.N.J. 2011) (benefit-of-the-bargain theory requires quantifiable difference in value)
  • Dzielak v. Whirlpool Corp., 26 F. Supp. 3d 304 (D.N.J. 2014) (unmet expectations insufficient for CFA ascertainable loss)
  • Dewey v. Volkswagen AG, 558 F. Supp. 2d 505 (D.N.J. 2008) (fraud/cause must plead when/where plaintiff saw misrepresentation)
  • Crozier v. Johnson & Johnson Consumer Cos., Inc., 901 F. Supp. 2d 494 (D.N.J. 2012) (dismissing CFA for failure to identify specific exposure to alleged misrepresentations)
  • Bosland v. Warnock Dodge, Inc., 197 N.J. 543 (N.J. 2009) (causal nexus requirement under CFA)
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