MEMORANDUM
Pending before the court is the defendant’s Motion to Strike Class Allegations and Motion to Dismiss the First Amended
BACKGROUND
This is the defendant’s second combined Motion to Strike and Motion to Dismiss. The court previously dismissed a number of the plaintiffs’ claims and struck certain class action allegations, after which the plaintiffs filed their First Amended Class Action Complaint (“FAC”). (Docket No. 26.)
The central factual allegations have not changed. On May 8, 2008, plaintiffs James and Sheila Bearden moved into a newly constructed home in Nashville, Tennessee. 1 Two model F300 electronic air cleaners, manufactured by defendant Honeywell International Inc. (“Honeywell”), were installed in the house’s heating system.
The plaintiffs allege that they relied on the recommendation of Daryl Bennett of Lebanon Heating and Air when deciding which air cleaner to install. (Docket No. 26 ¶ 9.) Bennett allegedly “based his decision to provide Honeywell F300’s to the Beardens on Honeywell’s written materials, including the manual,” (id. ¶ 11), and he advised the plaintiffs that they should run the air cleaners constantly for a month or so after moving in. (Id. ¶ 13.) Although Bennett “discussed the benefits of the F300,” he did not “address the ozone generated by the F300’s.” (Id. ¶ 61.)
The plaintiffs allege that, within days of moving in, Sheila Bearden (“Bearden”) developed a respiratory illness. Over the next several months, she suffered sore throats, coughing, fatigue, and other troubling symptoms. She saw multiple doctors, but their diagnoses and treatments were ineffective. By November 2008, Bearden had allegedly developed a hypersensitivity to smells and everyday chemicals. This became so severe that she “could not shop in most stores without feeling intense pain and could not use or be near certain cosmetics or other chemicals.” (Id. ¶ 43.) She “experienee[d] pain while working at the computer and talking on the phone,” and it became difficult for her to spend time in the house. (Id.) The plaintiffs allege that, in six months, Bear-den went from being a healthy and active person to being “filled with pain, fear and anxiety.” (Id. ¶ 46.)
On or around November 18, 2008, while searching for information about air contaminants, Bearden read that electronic air cleaners can contribute to poor indoor air quality. At that point, the plaintiffs permanently turned off their air cleaners. Bearden’s health problems continued, however, and she and her husband were forced to move out of their house for several months. The plaintiffs allege that Bear-den’s symptoms have “lessened to some degree since she turned off her air cleaners,” although she continues to suffer from hypersensitivity to “colognes, cleaning supplies, plastics, fuel, fabrics, printed materials and other products containing chemicals that are a part of everyday life.” (Id. ¶¶ 58-59.)
According to the plaintiffs, Bearden’s health problems were caused by ozone. Ozone is a molecule consisting of three oxygen atoms and is emitted by certain types of electronic air cleaners, including the F300. The plaintiffs allege, citing EPA documents and various articles, that ozone exposure can cause breathing difficulties, lung damage, and chemical hypersensitivi
The product data sheet that Honeywell distributed with the F300 claimed that the air cleaner “contributes .005 to .010 ppm [parts per million] of ozone to the indoor air.” (Id. ¶ 64.) This equals 5 to 10 parts per billion (ppb). The document also notes that “[t]he U.S. Food and Drug Administration and Health and Welfare Canada recommend that indoor ozone concentration should not exceed .050 ppm,” or 50 ppb. (Id.) The plaintiffs allege that the defendant has understated the amount of ozone produced by the F300. They cite a study published by the magazine Consumer Reports that found that the F300 actually generates ozone levels of between 25 and 50 ppb.
The plaintiffs allege that the defendant’s failure to accurately label the F300’s ozone output and to warn of ozone’s deleterious effects led to Bear-den’s health problems. They assert claims for: (1) strict liability for failure to warn; (2) negligent failure to warn; (3) violation of the Tennessee Consumer Protection Act; (4) fraudulent concealment; (5) fraud; (6) negligent misrepresentation; (7) violation of the Magnuson-Moss Warranty Act; and (8) unjust enrichment.
The plaintiffs have asserted Claims 4 through 8 on behalf of a putative class. The class is defined as “all customers in the United States who have purchased Honeywell F300 Series Electronic Air Cleaners,” but it expressly excludes “anyone other than Plaintiffs seeking to recover for physical injuries caused by F300’s.” (Id. ¶ 100.) The plaintiffs seek “the recovery of consideration that ... members of the Class paid to purchase the F300’s.” (Id. ¶ 104.)
In response to the defendant’s first Motion to Dismiss and Motion to Strike, the court: (1) dismissed the plaintiffs’ fraud claims without prejudice because they failed to adequately plead reliance; (2) dismissed two claims that were improperly brought under New Jersey law; (3) dismissed the Magnuson-Moss class claim without prejudice because the plaintiffs failed to allege that they gave sufficient notice to the defendant, as required by the statute; and (4) struck the class allegations because the individual fraud claims had been dismissed and because the unjust enrichment claim, on its face, required individualized inquiry regarding each absent class member. 2 (See Docket No. 24.) The plaintiffs have added new allegations to their FAC in an attempt to fix the defects in their fraud claims and Magnuson-Moss class claim.
ANALYSIS
The defendant has filed a Motion to Dismiss and Motion to Strike Class Allegations, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(f).
I. Motion to Dismiss Standard
The Federal Rules of Civil Procedure require plaintiffs to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed R. Civ. P. 8(a)(2). In deciding a motion to dismiss under Rule 12(b)(6), the court will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.”
Directv,
Generally, a complaint does not need to contain “detailed factual allegations,” although its allegations “must be enough to raise a right to relief above the speculative level.”
Twombly,
II. Magnuson-Moss Claim
The plaintiffs have asserted a class claim under the Magnuson-Moss Warranty Act (the “Act”), 15 U.S.C. § 2301 et seq. The court previously held that the plaintiffs did not sufficiently allege that they satisfied the statute’s notice requirement. (Docket No. 24 at 15-17.) The defendant argues that the FAC has not fixed this problem; it also argues that the individual Magnuson-Moss claim should be dismissed because the plaintiffs now fail to plead an underlying state-law implied warranty claim. (Docket No. 28 at 8,13.)
The Act provides a right of action for consumers who are damaged by a manufacturer’s breach of warranty. Id. § 2310(d). It requires potential class action plaintiffs to give the defendant notice that they intend to bring suit on behalf of a class:
No action ... may be brought under subsection (d) for failure to comply with any obligation under any written or implied warranty ..., and a class of consumers may not proceed in a class action under such subsection ..., unless the [defendant] is afforded a reasonable opportunity to cure such failure to comply. In the case of such a class action ..., such reasonable opportunity will be afforded by the named plaintiffs and they shall at that time notify the defendant that they are acting on behalf of the class.
15 U.S.C. § 2310(e) (emphasis added).
As the court noted in its previous decision, the language of the statute is mandatory. A class action “may not be brought” unless the defendant was given “reasonable opportunity to cure” the problem, and the named plaintiffs
“shall
at that time notify the defendant that they are acting on behalf of the class.”
Id.
(emphasis added);
see also Stearns v. Select Comfort Retail Corp.,
No. 08-2746,
Here, Bearden wrote in a February 2009 email to the defendant that she would “begin looking for an attorney” to address her dissatisfaction with the air cleaners. (Docket No. 1 ¶ 98.) This email did not mention that she intended to bring a class
The plaintiffs argue that these two communications were enough to give “both actual and constructive notice” that Bear-den was acting on behalf of a class. (Docket No. 33 at 11.) The court disagrees. Bearden never explicitly told Honeywell that she was “acting on behalf of the class,” 15 U.S.C. § 2310(e), and a regulatory complaint stating simply that a product defect “could” harm numerous people does not provide notice, constructive or otherwise, that the consumer complainant is planning to sue on behalf of those people.
The plaintiffs cite this court’s recent decision in
Smith v. Pfizer, Inc.,
The plaintiffs also point to
Radford v. Daimler Chrysler Corp.,
The plaintiffs’ individual Magnuson-Moss claim is also defective, because they do not assert an underlying state-law
The plaintiffs argue that state law regarding implied warranties is irrelevant, because their Magnuson-Moss claim is based on “a written warranty in the Owner’s Manual” and because Honeywell “extended to them, as consumers, a limited express warranty covering defects in workmanship and materials.” (Docket No. 33 at 13.) The FAC, however, contains no allegations regarding any express warranty. In fact, the plaintiffs’ Magnuson-Moss claim is explicitly premised on the defendant’s “breach of its implied warranties.” (Docket No. 26 ¶ 209 (emphasis added).) The plaintiffs cannot create an express warranty claim in their response brief when the FAC contains no supporting allegations.
Thus, the court will dismiss the plaintiffs’ Magnuson-Moss claim. Class allegations regarding this claim will be stricken with prejudice. The court will grant leave to amend the FAC to assert any applicable Tennessee implied warranty claims or to add allegations regarding an express warranty.
III. Fraud Claims
The defendant also argues that the plaintiffs fraud, fraudulent concealment, and negligent misrepresentation claims should be dismissed. (Docket No. 28 at 10-13.) 4
First, the defendant claims that the affirmative fraud and negligent misrepresentation claims are defective because the plaintiffs’ “reliance is ultimately on an omission rather than an affirmative statement.”
(Id.
at 11.) But the plaintiffs allege that Honeywell affirmatively misstated the air cleaners’ ozone output. They allege that the contractor who recommended the F300 to the plaintiffs “would not have selected the F300 for the Bear-dens had he received accurate materials
setting out the true ozone levels produced by FSOO’s
and health issues associated with those levels.” (Docket No. 26 ¶ 11 (emphasis added).) Although part of this allegation deals with the omission of information regarding ozone’s health effects,
Second, the defendant argues that the fraudulent concealment claim should be dismissed because, under Tennessee law, it had no duty to disclose information regarding ozone’s health effects. In Tennessee, “ ‘the tort of fraudulent concealment is committed when a party who has a duty to disclose a known fact or condition fails to do so, and another party reasonably relies upon the resulting misrepresentation, thereby suffering injury.’ ”
Shah v. Racetrac Petroleum Co.,
There are two lines of Tennessee cases regarding a party’s duty to disclose information. One line originates with an 1885 decision in which the Tennessee Supreme Court held that a duty to disclose arises only in three “distinct” circumstances: (1) “where there is a previous definite fiduciary relation between the parties,” (2) “where it appears one or each of the parties to the contract expressly reposes a trust and confidence in the other,” and (3) “where the contract or transaction is intrinsically fiduciary and calls for perfect good faith.”
Domestic Sewing Mach. Co. v. Jackson,
But there is a competing line of Tennessee cases, originating with
Simmons v. Evans,
The Tennessee Court of Appeals has since expanded upon Simmons’s formulation. In
Patton v. McHone,
(1) a seller must disclose enough information to prevent its statements from being misleading;
(2) a seller must give accurate answers to a buyer’s questions concerning a product’s condition;
(3) a seller must disclose any condition or defect that it knows or should know about that renders the product defective or dangerous; and
(4) a seller must disclose basic, material information if it knows that the buyer is about to act without knowledge of the information and is without reasonable means to acquire the information itself.
Id.
at 615-16 (footnotes omitted). As recently as several months ago, the Tennessee Court of Appeals reaffirmed the vitality of the
Simmons
and noted that the principle of that case “is set forth in Restatement (Second) of Torts § 551.”
7
Guesthouse Int’l, LLC v. Shoney’s N. Am. Corp.,
No. M2008-02567-COA-R3-CV,
In
Shah,
the Sixth Circuit explained its decision to not apply the
Simmons
line of cases by noting that “these cases have generally been limited to real estate purchases and used car sales.”
But since
Shah
was decided in 2003, Tennessee courts have repeatedly applied
Simmons
in contexts other than car and real estate sales.
See Guesthouse,
Given these developments in Tennessee law since the Sixth Circuit’s decision in
Shah,
and the fact that
Shah
was not a dispute between a consumer and a seller, this court finds that the
Simmons
line of cases applies to consumer transactions.
8
A seller must “disclose enough information to prevent its statements from being misleading,” it must “disclose any condition or defect that it knows or should know about that renders the product defective or dangerous,” and it must “disclose basic, material information if it knows that the buyer is about to act without knowledge of the information and is without reasonable means to acquire the information itself.”
Patton,
It is possible that, at the summary judgment stage, the defendant will be able to show that it nevertheless had no duty to disclose information regarding ozone’s health effects. 9 But the court will not dismiss the plaintiffs’ fraudulent concealment claim simply because the parties were not in a fiduciary relationship.
IV. Class Allegations
Finally, the defendant has moved to strike the plaintiffs’ class allegations, 10 arguing that: (1) the class definition is not sufficiently ascertainable; (2) the Bear-dens’ claim is not typical of the claims of absent class members; (3) individual questions will necessarily predominate the fraud claims; and (4) the proposed nationwide class is not manageable. (Docket No. 28 at 4-7.)
The plaintiffs’ proposed class includes “all persons in the United States who have purchased Honeywell F300 Series Electronic Air Cleaners” but excludes “anyone other than Plaintiffs seeking to recover for physical injuries caused by F300’s.” (Docket No. 26 ¶ 100.) Although the FAC focuses exclusively on health problems that ozone exposure can cause, the plaintiffs allege that the class members, who by definition suffered no physical injuries, “were damaged as a result of purchasing F300’s which generated higher levels of ozone gas than Honeywell had represented.” (Id. ¶ 103.) The plaintiffs seek recovery “of consideration that ... other members of the Class paid to purchase the F300’s.” (Id. ¶ 104.)
The Sixth Circuit has stated that a district court should defer decision on class certification issues and allow discovery “if the existing record is inadequate for resolving the relevant issues.”
In re Am. Med. Sys.,
The defendant first argues that the proposed class is not sufficiently ascertainable, citing the Sixth Circuit’s decision in
Romberio v. UnumProvident Corp.,
No. 07-6406,
The Sixth Circuit denied certification because “whether a claim for benefits is
wrongfully
denied depends on a number of factors peculiar to the claimant’s case.”
Id.
at 429,
[Defining the class to include only people who were subjected to the alleged practices] does little to distinguish between the set of individuals whose claims were properly denied for valid medical reasons and the set of individuals whose claims were improperly denied for profit-driven reasons. Indeed, ... the only way to distinguish between the two sets of individuals is to engage in individualized fact-finding, and the need for such individualized fact-finding makes the ... class definition unsatisfactory.
Id.
at 431,
The defendant here argues that individualized fact-finding will be required to determine which class members, if any, have suffered a cognizable injury. In support, it points to the court’s previous resolution of the plaintiffs’ class-wide unjust enrichment claim. That claim would have required each class member to prove “ ‘circumstances [showing] that it would be inequitable for’” Honeywell to retain the profits received from that consumer. (Docket No. 24 at 20) (quoting
Freeman Indus. LLC v. Eastman Chem. Co.,
The defendant argues that, for the same reason, even if Honeywell made fraudulent statements or nondisclosures, many class members have suffered no injury. But it can simultaneously be true that: (1) a given consumer has been satisfied with the performance of his F300, and (2) the consumer would not have bought the F300 in the first place, had he known that it emits a high level of ozone and that ozone is a severe health risk to a portion of the population. This consumer would not have a viable unjust enrichment claim, because his satisfaction with the F300 makes it not inequitable for the defendant to retain its profits. But it is not obvious that the consumer necessarily suffered no injury or that he lacks standing to pursue a fraud claim.
12
Further briefing from the parties
Whether individualized inquiry is necessary to determine whether class members would not have bought the F300 but for the alleged fraudulent concealment depends on, among other things, the amount of ozone the F300 emits and the warnings that the defendant should have disclosed. For example, if the evidence ultimately shows that the F300 emits a large amount of ozone, that a relatively large portion of the population is sensitive to ozone exposure, that such exposure can cause grievous physical consequences, and that Honeywell should have conspicuously disclosed all of this to purchasers, it is possible that individualized inquiry will not be required. 13 Discovery and further briefing are thus necessary to resolve the ascertainability issue.
The defendant also attacks the plaintiffs’ ability to meet Rule 23’s typicality and predominance requirements. A proposed class representative’s claim is typical if “it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.”
In re Am. Med. Sys.,
The defendant argues that the plaintiffs’ claims are not typical because their claims, which allege personal injuries, are covered by the Tennessee Product Liability Act (the “TPLA”), whereas the absent class members have not suffered personal injuries and are not subject to the TPLA’s requirements. Thus, the defendants argue, the proof for the plaintiffs’ individual claims will be different than the proof needed by the class. (Docket No. 28 at 4-5.)
But the relevant TPLA section does not apply to the plaintiffs’ fraud claims. The TPLA does define “product liability action” as “all actions brought for or on account of personal injury, death or property damage caused by or resulting from the ... design, ... warning, instruction, marketing, packaging or labeling of any product,” including actions based upon “misrepresentation, concealment, or nondisclosure.” Tenn.Code Ann. § 29-28-102(6). It also generally requires product liability plaintiffs to show that the product was “in a defective condition or unreasonably dangerous” when it left the seller,
id.
§ 29-28-105(a), a showing that is not required for a common-law fraud claim. But the statute specifically states that this requirement does not apply to “an action based on ... misrepresentation regarding the chattel.”
Id.
29-28-105(c). According
The plaintiffs must also show that issues subject to generalized proof predominate over those issues subject to individualized proof.
Beattie v. CenturyTel, Inc.,
Although courts often find that individual questions predominate fraud and fraudulent concealment claims,
see id,.,
this is not always the case.
See, e.g., Melt v. Anthem, Inc.,
Finally, the defendant argues that a nationwide class will be unmanageable, because the court will be required to apply the law of each class members’ home state. (Docket No. 28 at 6) (citing
In re Bridge-stone/Firestone & Ford Motor Co. Tire Litig.,
In sum, it is premature for the court to find that the plaintiffs cannot meet the requirements of Rule 23. It may turn out that the plaintiffs’ proposed class should not be certified for some of the reasons the defendant has identified. But until discovery is taken and the matter is fully briefed, the court will defer its decision on these issues.
CONCLUSION
For all of the reasons discussed above, the defendant’s Motion to Dismiss and Motion to Strike will be granted in part and denied in part. The court will dismiss the plaintiffs’ individual Magnuson-Moss claim without prejudice and will grant the plaintiffs leave to amend the FAC to add allegations regarding an express warranty or an underlying state-law implied warranty claim. The court will strike the class allegations regarding the Magnuson-Moss claim with prejudice.
An appropriate order will enter.
Notes
. Unless otherwise noted, the allegations are drawn from the plaintiffs’ First Amended Class Action Complaint (Docket No. 26).
. The FAC again includes an unjust enrichment claim brought on behalf of the class. The plaintiffs did not, and indeed could not, cure the defects with this class claim. Accordingly, the court will again strike the class allegations regarding this claim.
. The plaintiffs argue that it is premature for the court to inquire into the sufficiency of their notice to Honeywell. (Docket No. 33 at 11 (citing
In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig.,
. The court previously dismissed these claims without prejudice because the plaintiffs failed to adequately plead reliance, which is an element of all three claims. In the FAC, the plaintiffs have alleged that the contractor who installed the air cleaners read the relevant documents and, on that basis, recommended the F300 the plaintiffs. They also allege that Honeywell knew that consumers would ultimately rely on the representations contained in the product documentation. This is sufficient to show reliance.
See Jenkins v. Brown,
No. M2005-02022-COA-R3-CV,
. This is especially true because the F300’s true ozone output level was allegedly 50 ppb. The F300 product data sheet explicitly stated that the FDA recommends that indoor ozone concentration should not exceed 50 ppb. Certainly, if the contractor knew that the unit emitted 50 ppb of ozone, that knowledge might have caused him to reevaluate his recommendation.
. Although
Simmons
is the touchstone case, the Tennessee Court of Appeals recently noted that "a duty to disclose ... any material fact affecting the essence of the subject matter of the contract, unless ordinary diligence would have revealed the undisclosed fact,”
Bradley v. All Am. Classics of Tenn., Inc.,
No. M200801738-COA-R3-CV,
. That section of the Restatement provides:
One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated, ...
(b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading; and
(c) subsequently acquired information that he knows will make untrue or misleading a previous representation that when made was true or believed to be so; and ... (e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.
Restatement (Second) of Torts § 551(2) (1977).
. Indeed, this line of cases clearly already applies to car sales. It would be an odd result for a duty to disclose material facts to attach to sales of one consumer good (i.e., cars) but not to sales of another (i.e., air cleaners).
. The defendant makes the conclusory assertion that, even applying Patton, the plaintiffs cannot establish a duty to disclose. (Docket No. 28 at 12-13.) It will have an opportunity to brief the matter in more detail at the summary judgment stage.
.Because the plaintiffs cannot maintain their Magnuson-Moss claim on behalf of the class, the only remaining class claims are the fraud claims.
. The Sixth Circuit noted that the problem with class definition also "carrie[d] over into problems with typicality.”
. In its previous decision, the court favorably cited
Hovsepian v. Apple, Inc.,
No. 08-5788,
But
Hovsepian
involved products that might, at some uncertain point in the future, manifest a defect. Here, in contrast, all of the F300s allegedly emit a high amount of ozone. Whether a given purchaser was physically
. The court is mindful that it should not inquire into the merits of the suit at the class certification stage.
Beattie v. CenturyTel, Inc.,