Case Information
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT JESSI DAVIS, ALLYSON HALPERIN,
EMILY PAIGE PAGE, BRIANNA AARON,
LEANNA ROSE, AND ASHLEY FRANCO,
individually and on behalf of themselves and No. 3:23-cv-119 (VAB) all others similarly situated,
Plaintiffs ,
v.
ANGELCARE USA, LLC AND PLAYTEX
PRODUCTS, LLC,
Defendants. RULING AND ORDER ON MOTION TO DISMISS
Jessi Davis, Allyson Halperin, Emily Paige Page, Brianna Aaron, Leanna Rose, and Ashley Franco (collectively, “Plaintiffs”), individually and on behalf of all others similarly situated, have sued Angelcare USA, LLC (“Angelcare”) and Playtex Products, LLC (“Playtex”) (collectively, “Defendants”) for violations of various state statutes related to unfair trade practices and false advertising; breach of implied and express warranty; and violation of the Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq. Compl. ¶ 17, ECF No. 1 (Jan. 30, 2023) (“Compl.”).
Defendants have moved to dismiss the Complaint in its entirety under Federal Rules of Civil Procedure 8, 9(b), 12(b)(1), and 12(b)(6), with prejudice. Mot. to Dismiss, ECF No. 45 (Apr. 24, 2023) (“Mot.”).
For the following reasons, the motion to dismiss is GRANTED in part and DENIED in part .
The case will proceed as follows:
Claim One, the Connecticut Unfair Trade Practices Act claim, shall proceed only against Angelcare.
Claims Two and Three, the New York General Business Law § 349, and the New York General Business Law § 350 claims, shall proceed against both Defendants.
Claim Four, the California Consumer Legal Remedies Act, Cal. Civ. Code §§1750, et seq. , claim, shall proceed against Angelcare only, and only as to damages against that Defendant.
Claim Five, the California Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. , claim, is dismissed without prejudice.
Count Six, the California False Advertising Law, Cal. Bus. & Prof. Code §§ 17500, et seq. , claim, is dismissed without prejudice.
Claim Seven, the North Carolina Unfair and Deceptive Practices Act, §§ 75-1.1, et seq. , claim, shall proceed against both Defendants.
Claim Eight, the Illinois Consumer Fraud and Deceptive Practices Act, §§ 815 ILCS 505/1, et seq. , claim, shall proceed against both Defendants.
Claim Nine, the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201- 213 claim, shall proceed against both Defendants.
Claim Ten, the Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq. , claim, is dismissed with prejudice.
Claim Eleven, the breach of express warranty claim, shall proceed against both Defendants, except as to the proposed Connecticut subclass.
Claim Twelve, the breach of implied warranty claim, is dismissed with prejudice, except as to the proposed North Carolina subclass, whose dismissal shall without prejudice.
Any prayer for injunctive relief is dismissed with prejudice.
Any prayer for equitable relief is dismissed without prejudice.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Allegations
1. The Diaper Genie System The Diaper Genie is a baby diaper disposal system, consisting of a large plastic container and a lid. Compl. ¶ 2. One of the key benefits of the system is the built-in bag disposal and sealing mechanism, which allows the user to easily swap bags of soiled diapers without having to replace the plastic bag each time, as would be required with a traditional trashcan. Id. This system requires a refill cartridge, which consists of a plastic ring that releases a continuous plastic bag that can be sealed and cut off when the Diaper Genie is full of diapers. Id. At that point, the user can dispense more plastic from the refill cartridge to form another bag. Id.
2. The Refill Cartridge Packages Refill cartridges are sold in packs of one through eight. Id. ¶ 9. Each of these refill packages contains a statement regarding the number of diapers that the cartridges in the package will hold. Id. ¶¶ 10–11. These claims are based on the assumption that a single refill cartridge can hold up to 270 diapers. Id. (for example, the single cartridge package states “holds up to 270** diapers”; the three cartridge package states, “Holds Up To 810* Diapers”; and the eight cartridge package states, “EACH REFILL HOLDS UP TO 270** DIAPERS”). On each package, these claims are accompanied by one or two asterisks, which correspond to a disclaimer printed on the bottom of the package, clarifying that a single refill cartridge can hold 270 newborn size diapers. Mem. in Support of Mot. to Dismiss at 30, ECF No. 45-1 (“Mem.”). [1] The side panel of the packages also contains a chart, which specifies the number of diapers of various sizes that a single refill cartridge can accommodate, based on the weight of the child ( e.g. , the package indicates that a single refill cartridge can only accommodate 107 diapers for a child over 27 pounds). Compl. ¶ 13.
The package with eight refill cartridges states that it contains a “1 YEAR SUPPLY[.]” Id. ¶ 10. This claim is on a different part of the label as the claim regarding the number of diapers that a single refill cartridge can hold. Pl. Opp’n to Defs.’ Mot. to Dismiss at 12, ECF No. 46 (June 23, 2023) (“Opp’n”). The one-year claim does not contain any asterisk, arrow, or other indication that it is meant to be read with a disclaimer. Id.
The package allegedly does not contain a one-year supply of diapers. Compl. ¶ 14. According to the claims printed on the package (that each cartridge can hold up to 270 newborn diapers), if it were to last the entire year, the eight-pack of refill cartridges would only be able to accommodate 5.92 newborn diapers per day or 2.35 diapers per day for babies over 27 pounds. Id. According to various experts, including academics and pediatricians, most babies allegedly would require roughly twice as many diapers as Defendants have budgeted to make these claims. Id. ¶ 15.
Defendants’ labeling allegedly is false and misleading: because babies do not remain infants for an entire year, Plaintiffs allege that the eight-pack of refill cartridges could never, in practice, hold the number of diapers advertised (since, as the baby grows and their diapers get larger, each refill cartridge would be able to hold fewer diapers). Id. ¶ 31. Plaintiffs also allege that the one-year claim is similarly false, since the eight-pack could never hold enough diapers to last a parent an entire year, assuming that their baby was being changed a healthy amount. Id.
Consumers allegedly rely on Defendants’ labeling to make decisions about what product to purchase. When they receive less than what Defendants promise and warrant on the product label, they allegedly lose money at the initial point of purchase and through having to buy additional diaper disposal products to compensate for the shortfall. Id. ¶ 32.
3. Plaintiffs Jessi Davis is a citizen and resident of North Carolina, who allegedly purchased an eight- pack of the refill cartridges for approximately $47.99 from a Target store on or around March 29, 2021. Id. ¶ 41. When considering her options and ultimately purchasing the refill cartridges, Davis allegedly relied upon the representations on the packaging about the number of diapers that would fit in each cartridge, as well as the one-year supply claim. Id. Davis allegedly would not have purchased the product if she had known that these representations were not true. Id. The refill product allegedly lasted Davis for only four months of normal use. Id. ¶ 42.
Allyson Halperin is a citizen and resident of Florida, who allegedly purchased an eight- pack of the refill products from Buy Buy Baby’s website in or around March 2022. Id. ¶ 44. When considering her options and ultimately purchasing the refill cartridges, Halperin allegedly relied upon the representations on the packaging about the number of diapers that would fit in each cartridge, as well as the one-year supply claim. Id. Halperin allegedly would not have purchased the product if she had known that these representations were not true. Id. Following the instructions on the product’s packaging, the refill product allegedly lasted Halperin for only three months. Id. ¶ 45.
Emily Paige Page is a citizen and resident of California, who allegedly purchased an eight-pack of the refill products for approximately $47.99 from an online retailer in or around April 2021. Id. ¶ 47. When considering her options and ultimately purchasing the refill cartridges, Page allegedly relied upon the representations on the packaging about the number of diapers that would fit in each cartridge, as well as the one-year supply claim. Id. Page allegedly would not have purchased the product if she had known that these representations were not true. Id. The refill product allegedly lasted Page for only three months of normal use. Id. ¶ 48.
Brianna Aaron is a citizen and resident of Illinois, who allegedly purchased an eight-pack of the refill products for approximately $47.99 from Target’s online store in or around April 2021. Id. ¶ 50. When considering her options and ultimately purchasing the refill cartridges, Aaron allegedly relied upon the representations on the packaging about the number of diapers that would fit in each cartridge, as well as the one-year supply claim. Id. Aaron allegedly would not have purchased the product if she had known that these representations were not true. Id. When using the product as directed by the packaging for her 18-month-old child, the refill product allegedly lasted Aaron only a few months. Id. ¶ 51.
Leanna Rose is a citizen and resident of New York, who allegedly purchased an eight- pack of the refill products for approximately $47.99 from Amazon’s online store on or around July 9, 2022. Id. ¶ 53. When considering her options and ultimately purchasing the refill cartridges, Rose allegedly relied upon the representations on the packaging about the number of diapers that would fit in each cartridge, as well as the one-year supply claim. Id. Rose allegedly would not have purchased the product if she had known that these representations were not true. Id. When using the product as directed by the packaging for her 2- and 3-year-old children, the refill product allegedly lasted Rose for only one month. Id. ¶ 54.
Ashley Franco is a citizen and resident of Connecticut, who allegedly purchased an eight- pack of the refill products at the Target store in West Hartford in or around August 2022. Id. ¶ 56. When considering her options and ultimately purchasing the refill cartridges, Franco allegedly relied upon the representations on the packaging about the number of diapers that would fit in each cartridge, as well as the one-year supply claim. Id. Franco allegedly would not have purchased the product if she had known that these representations were not true. Id. When using the product as directed by the packaging for her 3-month-old child, the refill product allegedly lasted Franco for less than one month. Id. ¶ 57.
4. The Class Plaintiffs seek to represent a class defined as all persons in the United States who purchased Playtex Baby Genie refill products between four years prior to the filing of the Complaint and the date that the class notice was disseminated. Id. ¶ 62.
Davis also seeks to represent a subclass consisting of class members who reside in North Carolina (“North Carolina subclass”). Id. ¶ 63.
Halperin also seeks to represent a subclass consisting of class members who reside in Florida (“Florida subclass”). Id. ¶ 64.
Page also seeks to represent a subclass consisting of class members who reside in California (“California subclass”). Id. ¶ 65.
Aaron also seeks to represent a subclass consisting of class members who reside in Illinois (“Illinois subclass”). Id. ¶ 66.
Rose also seeks to represent a subclass consisting of class members who reside in New York (“New York subclass”). Id. ¶ 67.
Franco also seeks to represent a subclass consisting of class members who reside in Connecticut (“Connecticut subclass”). Id. ¶ 68.
5. Defendants Playtex is a corporation with its headquarters and principal place of business in Shelton, Connecticut. Id. ¶ 59. Playtex has a line of baby diaper disposal products, including the refill cartridge products purchased by Plaintiffs and class members, that are available throughout the United States, including North Carolina, Florida, California, Illinois, New York, and Connecticut. Id. Playtex, together with co-Defendant Angelcare, allegedly is responsible for the misleading and deceptive manufacturing, marketing, advertising, and distributing of the refill products during the class period. Id. All activities related to the marketing, advertising, and product information for the refill cartridges allegedly took place in Connecticut. Id.
Angelcare is a Delaware corporation with its headquarters and principal place of business in East Hartford, Connecticut. Id. ¶ 60. Angelcare is a leader in the baby care industry, developed its diaper pail system in 2005, and partnered with Playtex to market the technology under the Playtex Diaper Genie brand that same year. Id. Angelcare’s products, including the refill cartridge products purchased by Plaintiffs and class members, that are available throughout the United States, including North Carolina, Florida, California, Illinois, New York, and Connecticut. Id. Angelcare, together with co-Defendant Playtex, allegedly is responsible for the misleading and deceptive manufacturing, marketing, advertising, and distributing of the refill products during the class period. Id. All activities related to the marketing, advertising, and product information for the refill cartridges allegedly took place in Connecticut. Id.
B. Procedural History
On January 30, 2023, Plaintiffs filed the Complaint. Compl.
On April 24, 2023, Defendants filed a motion to dismiss. Mot.; Mem.
On June 23, 2023, Plaintiffs filed a memorandum in opposition to the motion to dismiss.
Opp’n.
On July 14, 2023, Defendants filed a reply to Plaintiffs’ response to the motion to dismiss. Reply to Response to Mot. to Dismiss, ECF No. 47 (July 14, 2023) (“Reply”).
II. STANDARD OF REVIEW
A. Federal Rule of Civil Procedure 8
A complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief[,]” Fed. R. Civ. P. 8(a)(2), in order to provide the defendant “fair
notice of what the . . . claim is and the grounds upon which it rests,”
Bell Atl. Corp. v. Twombly
,
Although the Federal Rules of Civil Procedure do not require “detailed factual
allegations,” a complaint must offer more than “labels and conclusions,” “a formulaic recitation
of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual
enhancement.”
Twombly
,
B. Federal Rule of Civil Procedure 9(b)
A plaintiff alleging statutory or common law fraud must also comply with Federal Rule
of Civil Procedure 9(b), which requires a party to state the circumstances constituting fraud
“with particularity.” Fed. R. Civ. P. 9(b). “Specifically, the complaint must: (1) specify the
statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where
and when the statements were made, and (4) explain why the statements were fraudulent.”
Mills
v. Polar Molecular Corp.
,
C. Federal Rule of Civil Procedure 12(b)(1)
Federal courts are “courts of limited jurisdiction.”
Exxon Mobil Corp. v. Allapattah
Servs., Inc.
,
D. Federal Rule of Civil Procedure 12(b)(6)
Any claim that fails “to state a claim upon which relief can be granted” will be dismissed.
Fed. R. Civ. P. 12(b)(6). In reviewing a complaint under Rule 12(b)(6), courts apply a
“plausibility standard” guided by “[t]wo working principles.”
Iqbal
,
First, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
Id.
;
see also Twombly
,
When reviewing a complaint under Rule 12(b)(6), the court takes all factual allegations in
the complaint as true.
Iqbal
,
A court considering a motion to dismiss under Rule 12(b)(6) generally limits its review
“to the facts as asserted within the four corners of the complaint, the documents attached to the
complaint as exhibits, and any documents incorporated in the complaint by reference.”
McCarthy
v. Dun & Bradstreet Corp.
,
III. DISCUSSION
Plaintiffs assert claims under the unfair trade practices and/or false advertising statutes of Connecticut, New York, Illinois, Florida, California, and North Carolina, as well as claims of breach of implied and express warranty, and claims under the Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq. Compl. ¶ 17.
Defendants have moved to dismiss all counts of the Complaint under Federal Rules of Civil Procedure 8, 9(b), 12(b)(1), and 12(b)(6). Mot. at 2. They argue that: (1) no reasonable consumer would be misled by the representations on the refill products’ packaging; (2) Plaintiffs cannot establish actual damages, actual injury, or an ascertainable loss; (3) Plaintiffs have not pled facts sufficient to establish causation; (4) Plaintiffs’ express warranty claims fail because Defendants made no actionable affirmation or promise and because there was no privity between Plaintiffs and Defendants; (5) Plaintiffs’ implied warranty claims fail because the refill products were fit for their ordinary purpose and because there was no privity between Plaintiffs and Defendants; (6) the MMWA claim fails for lack of subject matter jurisdiction and because Plaintiffs’ predicate state-law warranty claims fail; (7) Plaintiffs have failed to meet the heightened pleading standard set forth in Federal Rule of Civil Procedure 9(b); (8) Plaintiffs’ claims against Playtex under the Connecticut Unfair Trade Practices Act (“CUTPA”), the New York General Business Law (“GBL”), the California Consumer Legal Remedies Act (“CLRA”), the California False Advertising Law (“FAL”), and the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”) are barred by the three-year statutes of limitations; and (9) Plaintiffs’ claims for equitable or declaratory relief fail because they have not demonstrated standing or a lack of adequate legal remedy.
For the sake of clarity, the Court addresses each of Plaintiffs’ claims in turn, covering all of Defendants’ arguments relevant to a given claim before proceeding to the next.
A. State Claims Defendants have raised three broad arguments against Plaintiffs’ state law claims: (1) the claims are time-barred against Playtex; [2] (2) Plaintiffs have failed to adequately plead various elements of their claims (including actual injury, causation, and fraud or mistake under Federal Rule of Civil Procedure 9(b)); and (3) the claims fail as a matter of law because no reasonable customer would have been misled by the representations on the refill products’ packaging.
The Court first summarizes the parties’ general arguments regarding each topic. Next, because arguments related to each claim must be analyzed under a different body of caselaw, [3] the Court addresses each state law claim in turn, setting forth the relevant legal standards and analyzing all of the parties’ related arguments. For each claim, the Court first addresses the threshold issue of timeliness; next, the Court assesses whether Plaintiffs have sufficiently pled the necessary elements of a given state law claim; finally, assuming that they have, the Court addresses whether, under the relevant caselaw, Plaintiffs have stated a claim upon which relief can be granted.
1. General Arguments [4]
a. Statute of Limitations Defendants argue that claims brought against Playtex under CUTPA, NYGBL, CLRA, FAL, and ICFA (Counts 1–4, 6, and 8) must be dismissed because they are all subject to a three- year statute of limitations. Mem. at 57. Defendants note that Plaintiffs seek to represent a class consisting of individuals who purchased Diaper Genie refill products up to four years prior to the filing of the Complaint on January 30, 2023, establishing a purchase cutoff date of January 30, 2019. Id. Because of the three-year statutes of limitations for claims under these state statutes, however, Defendants argue that the purchase cutoff date should actually be one year later, on January 30, 2020. Id. Because Playtex sold the Diaper Genie product line to Angelcare on December 17, 2019, and thereafter stopped selling Diaper Genie products, Defendants argue that any claims against Playtex under these statutes are necessarily time-barred. Id. at 58.
Plaintiffs respond that their claims under NYGBL, CLRA, FAL, and ICFA can proceed
under the delayed discovery rule, which tolls the statute of limitations until the plaintiff knows of
FAL, and CLRA);
Dorris v. Danone Waters of Am.
, No. 22 Civ. 8717 (NSR),
[4] Defendants raise some arguments only as to certain claims, but they do not always specify which ones. For the sake of clarity, the Court addresses each argument as to each claim.
the existence and cause of his injury. Opp’n at 49. Plaintiffs concede that this rule does not apply to CUTPA, id. , and therefore presumably withdraw their claim against Playtex on behalf of the Connecticut subclass. With regard to their other claims, however, Plaintiffs argue that they had no reason to know that the one-year supply claim was false until they had used the refill product for several months, when it became clear that the product would not last for the entire year. Id. at 50. Under the delayed discovery rule, then, they argue that the statute of limitations should have been tolled for at least a few months. Id. Given this delayed accrual of Plaintiffs’ claims, Plaintiffs argue that class members should still be able to make claims against Playtex, notwithstanding the three-year statute of limitations. Id. Plaintiffs also argue that the question of when a reasonable individual would realize that the refill product could not last an entire year is a question of fact that cannot be resolved at this stage of the case. Id.
In their reply, Defendants argue that Plaintiffs have not pled the facts necessary to invoke the delayed discovery rule. Reply at 36–37. In their view, these facts generally include: (1) the time and manner of the plaintiff’s discovery of the alleged deception, and (2) the plaintiff’s inability to have discovered the alleged deception earlier, despite reasonable diligence. Id. at 37. Defendants disagree that the date of discovery can create a factual issue here, since, in their view, Plaintiffs have not alleged facts sufficient to invoke the delayed discovery rule at all. Id.
b. Sufficiency of the Pleadings Defendants argue that all of Plaintiffs’ claims under the various state consumer protection statutes fail because Plaintiffs have failed to meet the pleading requirements for such claims.
i. Actual Damages Defendants claim that Plaintiffs have not pled facts sufficient to establish actual damages, actual injury, or an ascertainable loss because: (1) they “received exactly what they bargained for: Refill Products capable of holding up to 270 soiled diapers per cartridge[,]” and (2) “they have not pled facts to demonstrate that they overpaid, or paid more than they otherwise would have, for the Refill Products” because of the claims on the packaging. Mem. at 42–43. Because Plaintiffs have not alleged that the product they received was ineffective for its intended use or inferior to any alternative product, and because the bulk refill cartridge package, in fact, contained cartridges at a lower price than they would have cost if purchased individually, Defendants argue that Plaintiffs suffered no identifiable loss as a result of the allegedly deceptive claims. Id. at 45.
Plaintiffs respond that their “allegations of damages are more than sufficient.” Opp’n at 30. Because they have alleged that they purchased the refill products based on a claim that was both not true and misleading—that the products would last for a year—and because Defendants charged a price premium for that statement, Plaintiffs argue that they have alleged an injury sufficient to meet the pleading requirement at this stage of the case. Id. at 33. Plaintiffs also note that they have alleged two additional theories of damages beyond the “price premium” injury addressed by Defendants: (1) an “underfill” theory of injury, in which damages are calculated by comparing the amount of product promised with the amount of product actually provided, and then multiplying that difference by the unit retail price; and (2) injury stemming from Plaintiffs’ need to purchase additional diaper pail products to compensate for the shortfall resulting from the allegedly misleading statements. Id. at 33–34.
Defendants reply that Plaintiffs “got what they paid for: eight refill cartridges, each capable of holding up to 270 diapers, for a total of 2160 diapers.” Reply at 23. Defendants further argue that, in order to sustain a price premium theory of damages, Plaintiffs would have had to plead more specific facts than they included in the Complaint, e.g. , the prices of similar products. Id. at 24. Defendants maintain that Plaintiffs did not pay a price premium for the eight- pack of refill cartridges because the price per cartridge was (and remains) less than if Plaintiffs had purchased the refill cartridges individually. Id. at 24–25. Finally, Defendants argue that the underfill and replacement product theory of damages are unavailing because they are predicated on Plaintiffs’ unreasonable reading of the one-year claim, which they maintain was not a misleading representation. Id. at 25.
ii. Causation Defendants argue that Plaintiffs have not adequately pled facts illustrating a causal connection between the alleged misrepresentations by Defendants and their alleged injuries. Mem. at 45. Although Plaintiffs allege that they relied upon Defendants’ one-year and capacity- related claims when deciding whether to purchase the refill products, Defendants maintain that they have not provided any specific and relevant factual background about when or where they saw the allegedly deceptive statements before making their purchases. Id. at 46.
Plaintiffs respond that some of the state law claims do not require them to plead reliance on the allegedly false representations (citing New York GBL §§ 349, 350), but, in any event, they argue that the Complaint “more than adequately alleged reliance and that they saw the representation at issue prior to purchase.” Opp’n at 35. Plaintiffs emphasize that each named Plaintiff alleged the approximate month and year when they purchased the refill products; identified the store or website where they purchased the products; stated that they saw the allegedly false representations prior to purchasing; and stated that they relied on those representations to choose the refill products over comparable products. Id.
In reply, Defendants maintain that plaintiffs must plead “where, when and how” they came to view the allegedly deceptive statements. Reply at 25 (citing Oden v. Bos. Sci Corp. , 330 F. Supp. 3d 877, 895 (E.D.N.Y. 2018)). They argue that four of the six named Plaintiffs allege that they purchased the product online, and that it is unclear from their allegations whether they viewed photos of the packaging online, or whether they relied upon statements on the retailers’ websites characterizing or paraphrasing the labeling claims. Id. at 25–26. The factual background provided by Plaintiffs’ Complaint is therefore, in their view, “simply lacking.” Id. at 26.
iii. Federal Rule of Civil Procedure 9(b)
Federal Rule of Civil Procedure 9(b) establishes a heightened pleading standard for
claims based on allegedly fraudulent conduct. Rule 9(b) states that, “[i]n alleging fraud or
mistake, a party must state with particularity the circumstances constituting fraud or mistake.
Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.”
Defendants argue that Rule 9(b) applies to the subset of Plaintiffs’ state law claims sounding in
fraud.
[5]
Mem. at 54–55. Under Rule 9(b), they claim, Plaintiffs must plead events giving rise to a
strong inference that Defendants had the requisite intent to defraud, knowledge of falsity, or a
reckless disregard for the truth.
Id.
at 55 (quoting
Cohen v. S.A.C. Trading Corp.
,
Plaintiffs contest Defendants’ choice of law regarding the appropriate pleading standard
claims brought under other states’ laws. Opp’n at 42. While Defendants appear to have applied
the caselaw from a given state when determining the pleading standard for claims brought under
that state’s statute, Plaintiffs argue that this Court is bound by Second Circuit caselaw regarding
the pleading standard for claims based in fraud.
Id.
Because the Second Circuit has held that
Rule 9(b) does not apply to GBL § 349,
see Greene v. Gerber Products Co.
,
Plaintiffs draw a distinction between the statutory claims they advanced in the Complaint
and the fraud-based claims that would be subject to Rule 9(b).
Id.
at 42 (“Notably, here,
Plaintiffs do not even plead a stand-alone cause of action for fraud and the action does not
‘sound in’ fraud.”). Plaintiffs further argue that, even if they are required to meet Rule 9(b)’s
pleading standard, they have met their burden because scienter may be pled generally, and “[a]ll
that is required under Rule 9(b) is that there exist[s] a minimal factual basis for . . . conclusory
allegations of scienter.”
Id.
at 44 (quoting
In re Livent, Inc. Securities Lit.
,
Defendants reply that Plaintiffs misread a single case—
Pelman ex rel. Pelman v.
McDonald’s Corp.
,
c. Failure to State a Claim Defendants’ primary argument is that all counts of Plaintiffs’ Complaint fail to state a claim upon which relief can be granted because no reasonable consumer would be deceived by Defendants’ claims. [7] Mem. at 23–24. Defendants argue that it is appropriate for the Court to make such a determination as a matter of law because Plaintiffs have not plausibly alleged that a significant portion of the general consuming public, acting reasonably under the circumstances, could be misled. Id.
As to the up-to-270 claim, Defendants argue that: (1) the “up to” language clearly communicated a ceiling, not a floor, for the number of diapers that could fit into a single refill cartridge; and (2) a reasonable consumer would not ignore the disclaimers on the box, which specified that the 270 number applied only to newborn diapers. Mem. at 24–34.
As to the one-year supply claim, Defendants argue that Plaintiffs’ “theory of deception” relies on “unreasonable and patently implausible assumptions” that this Court should reject as a matter of law. Id. at 34. Defendants argue that Plaintiffs’ calculations, which purportedly prove that the one-year supply claim is false, unreasonably assume that “every single dirty diaper a parent throws away for an entire year” will be disposed in the Diaper Genie. Id. Defendants contend that this theory rests on the unreasonable assumption that the child is not in daycare, does not spend significant time at family members’ or friends’ houses, and that the family does not go on outings or vacations outside of the home. Id. at 34–35.
Defendants also argue that it is unreasonable to read the one-year supply claim in isolation, and that the claim would not deceive a reasonable consumer if read in the context of the entire label, which specifies the number of diapers of various sizes that would fit into a single refill cartridge and clearly indicates to a reasonable consumer that the amount of time it would take to exhaust a refill cartridge would depend on a number of factors specific to their individual circumstances. Id. at 37–38. The one-year supply claim was placed in close proximity to the up- to-270 diaper claim, Defendants emphasize, “because they are meant to be read in conjunction.” Id. at 38.
Plaintiffs respond that the question of whether a reasonable consumer would be misled by Defendants’ claims is a question of fact that cannot and should not be resolved on this motion. Opp’n at 18. Under the relevant caselaw across various circuits, Plaintiffs argue that such a factual inquiry—weighing various potential interpretations of allegedly misleading statements— is generally not appropriate for resolution on the pleadings. Id. at 20. Plaintiffs additionally argue that the question of whether a reasonable consumer would expect to dispose a significant percentage of their child’s diapers elsewhere is also one of fact, which the Court cannot resolve at this stage. Id. at 21. They emphasize that the one-year supply claim is not accompanied by any modifiers or disclaimers (such as the “up to” language that accompanies the up-to-270 diaper claim). Id. at 24–25. Plaintiffs contest that the one-year-supply claim would reasonably be read in the context of other statements on the packaging, as claimed by Defendants, given that it appears on a different part of the label than the other statements and against a different color background. Id. at 26. Finally, Plaintiffs argue that the statements “holds up to 270 diapers” or “hold up to 2160 diapers” cannot provide clarifying context for the one-year-supply claim because such numbers are not “intrinsically meaningful metric[s] of quantity” that a typical consumer would understand or be able to translate into a duration. Id. at 27.
Defendants reply that the one-year-supply claim cannot be read in isolation, noting that it is located less than an inch away from the allegedly clarifying language, “8 REFILLS HOLDS UP TO 2160** TOTAL DIAPERS” and that the two statements are in similar sized fonts that contrast with the background and would not be reasonably disregarded by a consumer. Reply at 5–6. Defendants argue that the up-to-2160-diapers claim explicitly informs customers that the refill product has a finite capacity based on the newborn-sized diapers, and allows a reasonable customer to determine the amount of capacity they would receive for other sized diapers. Id. at 9.
The Court addresses each state law claim in the order presented in the Complaint; for each claim, the Court will address each of Defendant’s arguments.
2. Connecticut (Claim 1) The Connecticut Unfair Trade Practices Act (CUTPA), Conn. Gen. Stats. §§ 42-110a, et seq. , provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce,” Conn. Gen. Stat. § 42– 110b(a), and provides a private cause of action for “[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42–110b[.]” Id. § 42-110g(a).
a. Statute of Limitations
An action for damages under CUTPA “may not be brought more than three years after
the occurrence of a violation of [CUTPA].”
Id.
§ 42-110g(f). The Connecticut Supreme Court
“has recognized that under certain circumstances, the limitations period may be tolled under the
continuing course of conduct doctrine.”
Izzarelli v. R.J. Reynolds Tobacco Co.
, 117 F. Supp. 2d
167, 177 (D. Conn. 2000) (citing
Blanchette v. Barrett
,
In their opposition to the motion to dismiss, Plaintiffs concede that tolling of the statute of limitations under the delayed discovery rule is not available under CUTPA. Opp’n at 49. Because Plaintiffs have not contested Defendants’ allegation that Playtex sold the Diaper Genie line to Angelcare on December 17, 2019, and thereafter ceased selling the refill products, and because the Complaint was filed more than three years later on January 30, 2023, the Court finds that Plaintiffs’ claim against Playtex under CUTPA is untimely. As Plaintiffs have alleged no facts that would suggest a continuing course of deceptive conduct by Playtex extending beyond the sale of the Diaper Genie line of products, there is no applicable exception to the three-year statute of limitations.
Accordingly, the Court will dismiss Claim 1 against Playtex.
b. Pleading Requirements
“To state a claim under CUTPA, a plaintiff must plead that she (1) suffered an
ascertainable loss of money or property, (2) that was caused by, (3) an unfair method of
competition or an unfair or deceptive act in the conduct of any trade or commerce.”
Smith v.
Wells Fargo Bank, N.A.
,
i. Damages
“The ascertainable loss requirement is a threshold barrier which limits the class of
persons who may bring a CUTPA action seeking either actual damages or equitable relief. . . .
Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered
an ascertainable loss due to a CUTPA violation.”
Artie’s Auto Body, Inc. v. Hartford Fire Ins.
Co.
,
A loss need not be significant to be ascertainable. Under CUTPA, “the private loss indeed
may be so small that the common law likely would reject it as grounds for relief, yet it will
support an action under the statute.”
Tanasi v. CitiMortgage, Inc.
,
Under this standard, Defendants’ arguments as to the failure to plead an actual injury are unpersuasive. Here, Plaintiffs have argued that they purchased the refill products at a given price, expecting to receive a full year’s supply of cartridges, and that they would not have purchased the refill products if they had known that the one-year claim was false. Compl. ¶ 80. They allege that because the product that they received did not last them for a full year, they did not receive the benefit of their bargain. Id.
Accepting these allegations as true, Plaintiffs have clearly pled an ascertainable loss.
Whether or not the refill cartridges were, in fact, capable of holding up to 270 newborn-sized
diapers, and regardless of the price of individual refill cartridges as compared to refill cartridges
within the multi-packs purchased by Plaintiffs, Plaintiffs have alleged an ascertainable loss in the
form of a discrepancy between the product they believed they were purchasing and the product
they, in fact, received.
See, e.g.
,
Gervais v. Riddle & Assocs., P.C.
,
Moreover, Plaintiffs additionally claim that they were injured because they were required to purchase replacement diaper disposal products when the refill cartridges ran out prematurely; they would not have had to purchase such products if the refill products had lasted for the entire year, as indicated on the package. Compl. ¶ 82. This, too, is an ascertainable loss under CUTPA.
Accordingly the Court finds that Plaintiffs have adequately pled an ascertainable loss. ii. Causation
To state a claim under CUTPA, a plaintiff must “establish both that the defendant has
engaged in a prohibited act
and
that, ‘as a result of’ this act, the plaintiff suffered an injury.”
Abrahams v. Young & Rubicam, Inc.
,
Here, Plaintiffs allege that they purchased the refill products “as a direct and proximate result” of Defendants’ claims, see Compl. ¶ 82, and although not required as an element of a CUTPA claim, they in fact plead reliance on such claims. Id. ¶ 80 (“If Defendants had advertised [their] Refill Products truthfully and in a non-misleading fashion, Plaintiff and other Connecticut subclass Members would not have purchased them or would not have paid as much as they did for them.”). Plaintiffs have therefore clearly alleged that Defendants’ misrepresentations caused their injuries.
Accordingly, the Court concludes that Plaintiffs have adequately pled causation. iii. Rule 9(b)
It is well-established that CUTPA claims in federal court need not meet the heightened
pleading standards of Rule 9(b).
Tatum v. Oberg
,
Accordingly, Defendants’ argument regarding Rule 9(b) does not apply to this claim. c. Failure to State a Claim
In assessing whether an act or practice is unfair under CUTPA, the Connecticut Supreme Court has adopted the Federal Trade Commission’s “cigarette rule,” which enumerates three relevant factors that courts should weigh:
(1) [w]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons.]
Harris v. Bradley Mem’l Hosp. & Health Ctr., Inc.
,
In the context of deceptive advertising or misleading claims, courts consider whether: (1)
the “representation, omission, or other practice [is] likely to mislead consumers;” (2) the
consumer “interpret[s] the message reasonably under the circumstances;” and (3) “the
misleading representation, omission, or practice [is] material—that is, likely to affect consumer
decisions or conduct.”
Lemberg L., LLC v. eGeneration Mktg., Inc.
, No. 3:18-CV-570 (CSH),
“[W]hether a practice is unfair and thus violates CUTPA is an issue of fact.”
Lemberg L.,
LLC
,
In other words, at this stage, “the [c]ourt need not and should not determine as a matter of
law whether [the defendant’s] conduct, as alleged, actually violated CUTPA. Instead, the proper
inquiry is whether [the plaintiff] has alleged sufficient facts to ‘raise a reasonable expectation
that discovery will reveal evidence’ supporting the claim.”
Edwards v. N. Am. Power & Gas,
LLC
,
Here, Defendants encourage the Court to find, as a matter of law, that Plaintiffs’ reading of certain claims is unreasonable, and that a reasonable consumer would understand the one-year claim to be qualified by the up-to-270 claim and other disclaimers on the packaging. Mem. at 23–41. Under Connecticut law, these are questions of fact, inappropriate for the Court to resolve at this time.
Accordingly, the Court finds that Plaintiffs have pled facts sufficient support a claim under CUTPA on behalf of the Connecticut subclass. Claim 1 will proceed against Angelcare.
3. New York (Claims 2 and 3) New York General Business Law (“GBL”) §§ 349 and 350 establish similar causes of action. Section 349 prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service[,]” while Section 350 prohibits “[f]alse advertising in the conduct of any business, trade or commerce or in the furnishing of any service.”
“The only difference between the two is that Section 350 more narrowly targets deceptive
or misleading advertisements, while Section 349 polices a wider range of business practices.”
Cline v. TouchTunes Music Corp.
,
a. Statute of Limitations
“Claims brought under sections 349 and 350 of New York’s GBL are subject to a three-
year statute of limitations.”
Wai Chu v. Samsung Elecs. Am., Inc.
, No. 1:18-CV-11742-GHW,
Defendants argue that the delayed discovery rule does not apply to claims under GBL §§
349 and 350. Mem. at 37;
see also Wender v. Gilberg Agency
,
In cases involving “deceptive practices inducing unrealistic expectations[,]” New York
courts have found that “plaintiffs suffer[] no measurable damage until the point in time when
those expectations [are] actually not met[.]”
Gaidon
,
In cases in which the injury occurs at the time of purchase, even when the plaintiff is not
aware of the injury, however, the statute of limitations runs from the time of purchase and will
not be extended.
See, e.g.
,
Fero
,
“At the motion to dismiss stage, dismissal of a complaint on the grounds that the statute
of limitations has expired is appropriate only if the complaint clearly shows the claim is out of
time.”
Levy v. BASF Metals Ltd.
, No. 1:15-cv-7317-GHW,
Here, Plaintiffs have alleged that they “ha[d] no reason to know that the ‘1 YEAR
SUPPLY’ statement was false until at least a few months of using the Refill Cartridges[.]”
See
Opp’n at 50. Defendants are right that, under New York law, such an allegation is not sufficient
to extend the statute of limitations. But as Defendants emphasize, Plaintiffs’ “own usage patterns
and a variety of individualized factors would impact whether they would reach the maximum
estimated advertised holding capacity of 270 newborn sized diapers” and whether the refill
products would last for a year.
See, e.g.
, Mem. at 33. Thus, accepting Plaintiffs’ allegations as
true, as the Court must at this stage, Plaintiffs’ claims could not have accrued until their usage
patterns were established, such that it became clear that the refill products would not be able to
attain the advertised capacity or last for the advertised duration. Indeed, before that time, “a court
could not have ordered any remedy.”
Gaidon
,
The Court concludes that, at this stage in the proceedings, it is too soon to identify when
precisely the statute of limitations began to run.
See Berkshire Bank v. Lloyds Banking Group
plc
, 20-1987-cv,
Accordingly, the Court will deny Defendants’ motion to dismiss Claims 2 and 3 against Playtex.
b. Pleading Requirements
To successfully assert a claim under either § 349 or § 350, “a plaintiff must allege that a
defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and
that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.”
Orlander v.
Staples, Inc.
,
i. Damages
To successfully plead an injury, “a plaintiff must allege that, on account of a materially
misleading practice, she purchased a product and did not receive the full value of her purchase.”
Colpitts v. Blue Diamond Growers
,
Plaintiffs may, however, allege an injury under Sections 349 or 350 under a price
premium theory, “an allegation that a plaintiff overpaid for the product, or, stated differently, ‘by
a claim that a plaintiff paid a premium for a product based on [the] defendants’ inaccurate
representations.’”
Fishon v. Peloton Interactive, Inc.
, No. 19-CV-11711 (LJL), 2020 WL
6564755, at *10 (S.D.N.Y. Nov. 9, 2020) (citation omitted) (quoting
Ackerman v. Coca-Cola
Co.
, No. CV-09-0395 (JG) (RML),
Generally, a complaint alleging that, had they known the truth, the plaintiff would not
have purchased the products for the same price or on the same terms will survive a motion to
dismiss.
See, e.g.
,
DeCoursey
,
Plaintiffs need not specifically identify a comparable product nor specify the price of
competing products in order to sustain their claim under Sections 349 or 350.
See, e.g.
,
Colpitts
,
Here, Plaintiffs have clearly alleged that they “spent money in the transaction that [they] otherwise would not have spent had [they] known the truth about Defendants’ advertising claims.” Compl. ¶ 41. They further claim that they would not have purchased the refill products at the price they paid, if they had known that they would not last an entire year. Id. ¶ 91. Finally, they allege that the products they received “had less value than Defendants represented” and that they were therefore “deprived of the benefit of [their] bargain[.]” Id. ¶ 92.
Accordingly, the Court concludes that Plaintiffs have pled a cognizable injury under GBL §§ 349 and 350.
ii. Causation
A “violation of either section [349 or 350] requires that the defendant’s conduct deceive a
reasonable consumer in a material respect, work a harm to the public at large, and directly cause
the plaintiff’s injury.”
Medisim Ltd. v. BestMed LLC
,
Reliance is not an element of a claim under Section 349 or Section 350.
See Stutman v.
Chemical Bank
,
The caselaw, however, is somewhat mixed. Some courts have dismissed cases based on
the plaintiff’s failure to sufficiently allege reliance.
See, e.g.
,
Gale v. Int’l Business Machines,
Corp.
,
But a number of courts, at least one of which expressly followed the lead of the New
York Court of Appeals in
Koch
, have not.
See Fishon
,
In any event, here, Plaintiffs have pled both reliance and causation. See Compl. ¶ 89 (“In [purchasing the Refill Products], Plaintiff Rose[, representative of the New York subclass,] relied upon Defendants’ false, misleading, and deceptive representations that the Refill Products could last an entire year, and that they could hold up to 270 diapers per Refill Cartridge. Plaintiff Rose spent money in the transaction that she otherwise would not have spent had she known the truth about Defendants’ advertising claims.”); Id. ¶ 92 (“As a direct and proximate result of Defendants’ false, misleading, and deceptive representations and/or omissions, Plaintiff Rose and other Members of the New York subclass were injured in that they: (1) paid money for Refill Products that were not what Defendants represented; (2) were deprived of the benefit of the bargain because the Refill Products they purchased were different than Defendants advertised; and (3) were deprived of the benefit of the bargain because the Refill Products they purchased had less value than Defendants represented.”).
Accordingly, the Court finds that Plaintiffs have adequately pled causation under GBL §§ 349 and 350.
iii. Rule 9(b)
Claims under § 349 and § 350 are “not subject to the pleading-with-particularity
requirements of Rule 9(b)” and “need only meet the bare-bones notice-pleading requirements of
Rule 8(a).”
Manchanda v. Navient Student Loans
, No. 19-CV-5121,
Accordingly, Defendants’ arguments regarding Rule 9(b) do not apply to Claims 2 and 3. c. Failure to State a Claim
In order to state a claim under either § 349 or § 350, “a plaintiff must allege that a
defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and
that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.”
Koch
, 967
N.E.2d at 675 (internal quotation marks omitted). “[I]n determining whether a reasonable
consumer would have been misled by a particular advertisement, context is crucial.”
Mantikas v.
Kellogg Company
,
At the motion-to-dismiss stage, a determination that the allegedly deceptive act or
practice is not materially misleading “is appropriate only if Plaintiffs’ claims are ‘patently
implausible’ or ‘unrealistic.’”
Cooper v. Anheuser-Busch, LLC
,
As described above, the Court cannot, at this juncture, conclude that Plaintiffs’ claims are
“patently implausible” or “unrealistic.”
See Cooper
,
Accordingly, the Court finds that Plaintiffs have pled facts sufficient support claims under GBL §§ 349 and 350 on behalf of the New York subclass. Claims 2 and 3 will proceed against both Defendants.
4. California (Claims 4-6) Plaintiffs have alleged claims under the Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750, et seq. ; the Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq. , and the False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §§ 17500, et seq. Compl. ¶¶ 102–38. The CLRA prohibits “unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer.” Cal. Civ. Code. § 1770(a). The UCL prohibits any “unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200. Finally, the FAL prohibits any “unfair, deceptive, untrue, or misleading advertising.” Cal. Bus. & Prof. Code § 17500.
“Courts often analyze the CLRA, UCL, and FAL together because they share similar
attributes.”
Schneider v. Colgate-Palmolive Co.
, No. 5:22-CV-1294,
a. Statute of Limitations
CLRA and FAL claims are subject to a three-year statute of limitations, while claims
under the UCL are subject to a four-year statute of limitations.
See Yumul v. Smart Balance, Inc.
,
These statutes of limitations may be tolled under the delayed discovery or fraudulent
concealment rules.
Yumul
,
Here, Plaintiffs have not pled any specific facts describing the time and manner of discovery or their inability to have made an earlier discovery despite reasonable diligence. In their opposition, they generally claim that they had no reason to know that Defendants’ claims were false “until at least a few months of using the Refill Cartridges, after it was clear that the Refill Cartridges would not in fact last an entire year.” Opp’n at 50. These allegations do not satisfy the requirements of the delayed discovery rule under California caselaw.
Accordingly, the Court will dismiss as untimely Plaintiffs’ claims under the CLRA and the FAL against Playtex. Plaintiffs’ claim against Playtex under the UCL survives, without the need for the delayed discovery rule, because of its four-year statute of limitations.
b. Pleading Requirements
i. Actual Damages In order to establish standing under the UCL and FAL, a plaintiff must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury ; and (2) show that economic injury was the result of, i.e., caused by , the unfair business practice or false advertising that is the gravamen of the claim.” Kwikset Corp. v. Super. Ct. , 246 P.3d 877, 885 (Cal. 2011) (emphasis in original). The CLRA requires that the plaintiff allege a “tangible increased cost or burden to the consumer.” Meyer v. Sprint Spectrum L.P. , 200 P.3d 295, 301 (Cal. 2009).
Importantly, California courts have held that the statutory standing requirements of the
CLRA, UCL, and FAL are more stringent than the federal Article III standing requirement.
See
In re Sony
,
Plaintiffs’ allegations satisfy the standard for economic injury under the CLRA, UCL, and FAL. Plaintiffs have alleged that they spent money purchasing refill products that they would not have spent if they had known that the misleading statements on the packaging were not true. Compl. ¶ 118. They also allege that they had to purchase additional refill products to compensate for the shortfall, see id. ¶ 49 (“Plaintiff had to purchase additional diaper disposal products after running out of Defendants’ Refill Cartridges to make up for the additional 9 months that Defendants shorted her.”).
Accordingly, the Court finds that Plaintiffs have adequately pled both “lost money” and an “increased cost or burden” sufficient to satisfy the injury requirement of all three consumer protection statutes.
ii. Causation
In order to establish standing under the CLRA, the UCL, or the FAL, a plaintiff must
allege actual reliance.
See Wilson v. Frito-Lay N. Am., Inc.
,
Actual reliance means that “the misrepresentation was an immediate cause of the injury-
producing conduct.”
Kwikset
,
Here, as described at length above, Plaintiffs have pled reliance. See Compl. ¶ 118 (“Plaintiff Page[, the representative of the California subclass,] has standing to pursue this claim because . . . [she] relied upon Defendants’ false representations that the Refill Products would last an entire year, and that they could hold up to 270 diapers when that is not true when used in the real world. Plaintiff Page spent money in the transaction that she otherwise would not have spent had she known the truth about Defendants’ advertising claims.”).
Accordingly, Plaintiffs have satisfied the causation requirement for standing under all three statutes.
iii. Rule 9(b)
[8]
The CLRA, UCL, and FAL all “require plaintiffs to meet the pleading standards of Rule
9(b) and demonstrate that members of the public are likely to be deceived by the alleged
misrepresentations.”
Schneider
,
“A pleading is sufficient under rule 9(b) if it identifies the circumstances constituting
fraud so that a defendant can prepare an adequate answer from the allegations.”
Van Mourik v.
Big Heart Pet Brands, Inc.
, No. 3:17-cv-03889-JD,
Moreover, as described in Rule 9(b), the state of mind elements—namely, malice, intent,
and knowledge—may be alleged generally.
See
Fed. R. Civ. P. 9(b);
Odom v. Microsoft Corp.
,
Plaintiffs meet the who and what prongs of Rule 9(b): they have alleged that Defendants created packaging for the refill products that contained misleading statements, and the content of the statements and the appearance of the packaging are not disputed. See Compl. ¶¶ 59–60. Additionally, the Court disagrees with Defendants’ argument that Plaintiffs’ failure to plead “where, when, and how” they came to view the statements on the product’s packaging renders their claims “deficient.” Mem. at 46; Reply at 25. Plaintiffs have alleged that they “reviewed the product’s labeling and packaging”—not text on the third-party sellers’ websites—and saw the contested claims prior to making their purchases. They additionally each allege approximately when they made the purchase.
Taken together, these allegations clearly identify the circumstances constituting the
alleged fraud with sufficient particularity to allow Defendants to prepare an adequate response.
See Van Mourik
,
While it is true that significant factual context is still as yet undiscovered, such gaps are the purpose of discovery. Dismissing these claims at this juncture would be inappropriate. Plaintiffs have provided sufficient information for Defendants to be on notice as to the conduct at issue in this suit.
Accordingly, the Court finds that Plaintiffs have satisfied Rule 9(b).
c. Failure to State a Claim
Claims under the CLRA, UCL, and FAL are all governed by the “reasonable consumer”
test.
Williams v. Gerber Prods. Co.
,
California courts have held that, whether a business practice is deceptive, is typically a
question of fact not appropriate for decision on demurrer.
Id.
at 938–39;
Linear Tech. Corp. v.
Applied Materials, Inc.
,
For the reasons described at length in the sections above, at this stage of the proceedings, the Court cannot determine, as a matter of law, whether Defendants’ labeling statements constitute a deceptive business practice under the CLRA, UCL, or FAL.
Accordingly, the Court finds that Plaintiffs have pled facts sufficient support claims under the CLRA, UCL, and FAL on behalf of the California subclass. Claims 4 and 6 will proceed against Angelcare. Claim 5 will proceed against both Defendants.
5. North Carolina (Claim 7)
The North Carolina Unfair and Deceptive Trade Practices Act (UDTPA), N.C. Gen. Stats
§§ 75-1.1,
et seq.
, provides a “civil legal means to maintain [ ] ethical standards of dealings
between persons engaged in business, and between persons engaged in business and the
consuming public within [the] State, to the end that good faith and fair dealings between buyers
and sellers at all levels of commerce be had in [the] State.”
Nobel v. Foxmoor Grp., LLC
, 868
S.E.2d 30, 33 (N.C. 2022) (quoting
Bhatti v. Buckland
,
a. Statute of Limitations
The statute of limitations for a UDTPA claim is four years after the cause of action
accrues. N.C. Gen. Stat. § 75-16.2;
Withers v. BMW of North America, LLC
, 560 F. Supp. 3d
1010, 1018 (W.D.N.C. 2021). For UTPA claims grounded in fraud, the violation occurs “at the
time that the fraud is discovered or should have been discovered with the exercise of reasonable
diligence.”
Dreamstreet Invs., Inc. v. MidCountry Bank
,
Accordingly, Defendants’ arguments regarding the statute of limitations period does not apply to Claim Seven.
b. Pleading Requirements
“To set forth a UDTPA claim, a plaintiff must plead (1) an unfair or deceptive act or
practice; (2) in or affecting commerce; (3) which proximately caused injury to plaintiff.”
Withers
,
i. Actual Damages
The Supreme Court of North Carolina recently held that the North Carolina Constitution
does not include an injury-in-fact standing requirement, where a purely statutory or common law
right is at issue.
Comm. to Elect Dan Forest v. Emps. Political Action Comm.
,
As described at length above, however, Plaintiffs have easily cleared this bar by alleging economic injury stemming from the refill products’ failure to meet their durational expectations, as well as the need to purchase additional diaper disposal products in order to compensate.
Accordingly, Plaintiffs have pled an injury sufficient to confer standing.
ii. Causation
Claims under the UDTPA stemming from an alleged misrepresentation require a plaintiff
to demonstrate reliance on the misrepresentation in order to demonstrate the necessary proximate
cause.
Bumpers v. Cmty. Bank of N. Va.
,
As described above, there is no reason to find otherwise here. Plaintiffs have alleged reliance on Defendants’ misrepresentations, see Compl. ¶ 41, and that this reliance caused financial injury. Id. ¶ 43.
Accordingly, Plaintiffs have pled causation sufficient to satisfy the pleading requirements of the UDTPA.
iii. Rule 9(b)
Fraud-based UDTPA claims are subject to the heightened pleading standards set forth in
Rule 9(b).
Withers
,
The rationale behind Rule 9(b)’s heightened pleading standard is “to give a defendant sufficient notice of the claim to permit him to formulate a defense, to protect against frivolous suits, to eliminate suits where all the fraud facts are learned after discovery, and to protect defendants from harm to their goodwill and reputation.” Diop v. BMW of N. Am., LLC , 511 F. Supp. 3d 679, 687 (E.D.N.C. 2021). As a result, “a court should hesitate to dismiss a complaint under Rule 9(b) if the court is satisfied (1) that the defendant has been made aware of the particular circumstances for which it will have to prepare a defense at trial, and (2) that plaintiff has substantial prediscovery evidence of those facts.” Id.
Here, as described above, Plaintiffs have clearly alleged the statements that they found false or misleading (the up-to-270 and one-year claims). There is no dispute that these statements were located on the product packaging. Plaintiffs have further indicated where and approximately when they purchased the refill products, and they have alleged that they viewed the statements prior to making their purchases and relied on them when deciding which diaper disposal product to purchase.
Accordingly, the Court finds that Plaintiffs have met the requirements of Rule 9(b). c. Failure to State a Claim
In order to sustain a claim under the UDTPA, “[t]he [alleged] conduct must be immoral,
unethical, oppressive, unscrupulous, or substantially injurious to consumers.”
Rahamankhan
Tobacco Enterprises Pvt. Ltd. v. Evans MacTavish Agricraft, Inc.
,
“A practice . . . is deceptive if it has a tendency to deceive.”
Dalton v. Camp
, 548 S.E.2d
704, 711 (N.C. 2001);
Marshall v. Miller
,
Here, there remain significant factual issues that would impact whether Defendants’ statements are deceptive or unfair under the UDTPA. As such, it is not appropriate to make such a determination at this time.
Accordingly, the Court finds that Plaintiffs have pled facts sufficient to support claims under the UDTPA on behalf of the North Carolina subclass and Claim Seven will proceed against both Defendants.
6. Illinois (Claim 8)
The Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS
§§ 505/1,
et seq.
, “protect[s] consumers, borrowers, and business persons against fraud, unfair
methods of competition, and other unfair and deceptive business practices.”
Camasta v. Jos. A.
Bank Clothiers, Inc.
,
a. Statute of Limitations
The ICFA has a three-year statute of limitations.
Kremers v. Coca-Cola Co.
, 712 F. Supp.
2d 759, 762 (S.D. Ill. 2010) (citing 815 ILCS § 505/10a(e)). Illinois applies the “discovery rule”
to actions involving torts, torts arising from contract, and other breaches of contractual duty.
Id.
(citing
Hermitage Corp. v. Contractors Adjustment Co.
,
The discovery rule holds that “the relevant limitations period does not begin to run, ‘until
the injured party knows or should have known of his injury.’”
Kremers
,
Under the rule, “a cause of action accrues when a plaintiff is ‘possessed of sufficient
information concerning its injury to put a reasonable person on inquiry to determine whether
actionable conduct is involved.’”
Kremers
,
When a plaintiff “had sufficient information to put a reasonable person on inquiry as to
the nature of the defect . . . and whether a cause of action existed” is a determination to be made
by the trier of fact.
Knox
,
Here, as Plaintiffs have argued, the question of when their claim under the ICFA accrued is one of fact that the Court may not appropriately resolve at this point.
Accordingly, Claim Eight will proceed against both Defendants.
b. Pleading Requirements
In order to state a claim under the ICFA, a plaintiff must allege, “(1) a deceptive or unfair
act or promise by the defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive
or unfair practice; and (3) that the unfair or deceptive practice occurred during a course of
conduct involving trade or commerce.”
Wigod v. Wells Fargo Bank, N.A.
,
i. Actual Damages
Actions brought under the ICFA require the plaintiff to allege “actual damage” as a result
of the defendant’s violation of the Act.
Camasta
,
Illinois courts have dismissed cases in which the plaintiff merely alleged that they did not
receive as favorable a deal as expected but could not demonstrate that the actual product they
received was defective or worth less than what they paid.
See, e.g.
,
Kim
,
Plaintiffs claim that, had they known that the refill products would not last a full year,
they would not have purchased the refill products at all, nor would they have paid the same price.
Compl. ¶ 52. This allegation alone does not meet the actual damages requirement under the
ICFA because it does not include any claim that the product Plaintiffs received was worth less
than what they actually paid.
See Kim
,
Accordingly, Plaintiffs have sufficiently pled actual damages to sustain their claim under the ICFA.
ii. Causation
To prevail on a claim under the ICFA, “a plaintiff must demonstrate that the defendant’s
conduct is the proximate cause of the injury.”
Siegel
,
Plaintiffs have alleged that they relied upon the representations made by Defendants in deciding to purchase the refill products. Compl. ¶ 50. They have additionally alleged that they would not have purchased the products on the same terms if they had known that Defendants’ representations were false. Id. ¶ 52.
Accordingly, the Court finds that Plaintiffs have alleged facts sufficient to demonstrate causation under the ICFA.
iii. Rule 9(b)
[9]
“Complaints alleging deceptive practices in violation of the ICFA must be pled with
sufficient particularity under Fed. R. Civ. P. 9(b)[.]”
Armbrister v. Pushpin Holdings, LLC
, 896
F. Supp. 2d 746, 754 (N.D. Ill. 2012);
see also Windy City Metal Fabricators & Supply, Inc. v.
CIT Tech. Fin. Servs., Inc.
,
This requirement, however, should not be viewed rigidly, and what constitutes
“particularity” will necessarily differ with the facts of each case.
Pirelli
,
As described above, Plaintiffs have clearly indicated which labeling statements they are challenging, as well as the circumstances under which each Plaintiff viewed the statements and relied on them when purchasing the refill products. Plaintiffs have therefore provided sufficient information for Defendants to be on notice as to the conduct at issue in this suit.
Accordingly, the Court finds that Plaintiffs have satisfied Rule 9(b).
c. Failure to State a Claim
The Illinois Supreme Court has cautioned that whether a defendant violated the ICFA “is
a factual issue which must be decided by the trier of fact.”
People ex rel. Daley v. Datacom
Systems Corp.
,
Moreover, “the Consumer Fraud Act itself states it is to be ‘liberally construed to effect
[its] purposes.’”
People ex rel. Daley
,
For the reasons described at length above, the question of whether Defendants’ statements were deceptive under the ICFA is one of fact, which the Court cannot resolve at this time.
Accordingly, the Court finds that Plaintiffs have pled facts sufficient to support claims under the ICFA on behalf of the Illinois subclass. Claim Eight will proceed against both Defendants.
7. Florida (Claim 9) The Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stats. §§ 501.201, et seq. , provides that “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are . . . unlawful.” Fla. Stat. § 501.204.
a. Statute of Limitations
The statute of limitations for a FDUTPA claim is four years.
See
Fla. Stat. § 95.11(3)(f);
see also Fisher v. Harley-Davidson Motor Grp., LLC
, No. 19-14154,
Because the statute of limitations for a FDUTPA claim is four years, Defendants’ arguments regarding timeliness do not apply.
Accordingly, Defendants’ arguments regarding the statute of limitations period do not apply to Claim Nine.
b. Pleading Requirements
A consumer claim for damages under FDUTPA has three elements: (1) an objectively
deceptive act or unfair practice; (2) causation; and (3) actual damages.
Carriuolo v. Gen. Motors
Co.
,
i. Actual Damages
A plaintiff cannot state a cause of action under the FDUTPA if the consumer fails to
plead that they suffered actual damages.
See Macias v. HBC of Florida, Inc.
,
The FDUTPA has been interpreted, however, to allow plaintiffs to recover the diminished
value of their purchased under a price premium theory of damages.
Coghlan v. Wellcraft Marine
Corp.
,
Here, because Plaintiffs have clearly alleged that the product they received (a multi-pack of refill cartridges that lasted less than one year) was worth less than the product they believed they were purchasing (a multi-pack of refill cartridges that would last one year), they have stated a cognizable injury under the FDUTPA.
ii. Causation
Causation is a necessary element of the FDUTPA claim, and “causation must be direct,
rather than remote or speculative.”
Hennegan Co. v. Arriola
,
Plaintiffs allege that they purchased the refill products in reliance on Defendants’ representations, and that these representations were the “but for” cause of their purchases. Compl. ¶¶ 162, 165. Plaintiffs have alleged that these representations were made by Defendants, who worked “[i]n concert” to “create[] and/or authorize[] the false, misleading, and deceptive manufacturing, marketing, advertising and distributing of the Refill Products.” Id. ¶¶ 59–60.
Accordingly, Plaintiffs’ allegations suffice to plead causation under the FDUTPA. iii. Rule 9(b)
The “FDUTPA was enacted to provide remedies for conduct outside the reach of
traditional common law torts such as fraud, and therefore, ‘the plaintiff need not prove the
elements of fraud to sustain an action under the statute.’”
Florida v. Tenet Healthcare Corp.
, 420
F. Supp. 2d 1288, 1310 (S.D. Fla. 2005) (quoting
Davis v. Powertel, Inc.
,
Accordingly, Defendants’ arguments regarding Rule 9(b) do not apply to this claim. c. Failure to State a Claim
The FDUTPA prohibits both unfair and deceptive acts and practices. Deceptive acts are
assessed under an objective standard, and the plaintiff must demonstrate that “the alleged
practice was likely to deceive a consumer acting reasonably in the same circumstances.”
Carriuolo
,
Generally, the question of whether an act is unfair or deceptive is not proper to resolve on
a motion to dismiss.
See, e.g.
,
State Farm Mutual Auto. Ins. Co. v. Performance Orthopaedics &
Neurosurgery LLC
,
For the reasons described at length in the sections above, the Court declines to dismiss Plaintiffs’ claim under the FDUTPA at this time.
Accordingly, the Court finds that Plaintiffs have pled facts sufficient to support claims under the FDUTPA on behalf of the Florida subclass and Claim Nine will proceed against both Defendants.
B. Common Law Claims Plaintiffs have also brought claims of breach of implied and express warranty. Compl. ¶¶ 177–88. These claims have been brought on behalf of each of the subclasses, according to the applicable state law where the purchases were made. Id. ¶¶ 178, 183.
Defendants raise two arguments against these breach of warranty claims. First, they argue that both breach of warranty claims fail because Plaintiffs lacked privity with Defendants. Mem. at 50–54. All Plaintiffs have pled that they purchased the refill products from some third-party vendor, and none allege that they purchased the products directly from Defendants; accordingly, there is no dispute that Plaintiffs did not have privity with Defendants. Plaintiffs’ response instead argues that privity is not required for breach of implied or express warranty claims premised on false advertising or misleading statements. Opp’n at 38–40.
Defendants also argue that the express warranty claims fail because the statements on the refill products’ packaging did not constitute actionable affirmations or promises. Mem. at 47–50. As to the implied warranty claims, Defendants argue that these too must fail because the refill products were fit for their ordinary purpose. Id. at 51–52.
The Court will address the arguments regarding the express and implied warranty claims in turn.
1. Breach of Express Warranty (Claim 11) An express warranty is “[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise[,]” or “[a]ny description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” Uniform Commercial Code (“UCC”) § 2-313.
a. Privity Privity, or a legal relationship between parties who have entered into a contract or transaction, is typically required to sustain a claim of breach of warranty. Yet, different states have differing standards and recognize different exceptions with regard to the privity requirement for express warranty claims. The Court lays out the relevant standards below.
As a preliminary note, Plaintiffs have withdrawn their express warranty claim under Connecticut law, acknowledging that it must fail for lack of privity. Opp’n at 38. Accordingly, the Court will dismiss Claim Eleven as to the Connecticut subclass.
In New York, Illinois, California, and North Carolina, privity is not required for express
warranty claims involving direct advertising to customers.
See Mancuso v. RFA Brands, LLC
,
The caselaw in Florida regarding the privity requirement for express warranty claims has
been described as “murky” and “a moving target.”
Smith v. Wm. Wrigley Jr. Co.
, 663 F. Supp. 3d
1336, 1342 (S.D. Fla. 2009); John W. Reis,
The Magic of Privity in Express Product Warranty
Claims: A Plaintiffs Perspective
, 79 F LA . B AR J. 50, 50 (2005). Yet, where, as here, the
manufacturer made claims intended to reach the consumer, and where there was no middleman
that the end-purchaser might reasonably expect to have relevant knowledge or expertise, Florida
courts have relaxed the privity requirement.
See Valiente v. Unilever U.S., Inc.
, Case No. 22-
21507-CIV-LENARD/LOUIS,
Accordingly, even in the absence of privity, Plaintiffs’ breach of express warranty claims may proceed under New York, Illinois, North Carolina, California, and Florida law.
b. Warranty The following sections describe the relevant standards for express warranties under New York, Illinois, North Carolina, California, and Florida law. Because the law governing express warranties is similar across all five states, the Court subsequently addresses the parties’ arguments as to all of the express warranty claims collectively.
i. New York
Under New York law, an express warranty is “[a]ny affirmation of fact or promise made
by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain
creates an express warranty that the goods shall conform to the affirmation or promise.”
Avola v.
La.-Pac. Corp.
, No. 11-CV-4053 (PKC),
ii. California
Under California law, in order to state a claim for breach of express warranty, a plaintiff
must allege: “(1) the exact terms of the warranty; (2) reasonable reliance thereon; and (3) a
breach of warranty which proximately caused plaintiff’s injury.”
Sanders v. Apple Inc.
, 672 F.
Supp. 2d 978, 986–87 (N.D. Cal. 2009). “To establish the existence of an express warranty, a
plaintiff must point to a specific and unequivocal written statement.”
Watkins v. MGA Ent., Inc.
,
“The determination as to whether a particular statement is an expression of opinion or an
affirmation of fact is often difficult, and frequently is dependent upon the facts and
circumstances existing at the time the statement is made.”
Keith v. Buchanan
,
iii. Illinois
To state a claim for breach of express warranty under Illinois law, a plaintiff must
demonstrate that the defendant breached an “affirmation of fact or promise that was made a part
of the basis of the bargain.”
Oggi Trattoria & Caffe, Ltd. v. Isuzu Motors Am., Inc.
, 865 N.E. 2d
334, 340 (Ill. App. Ct. 2007). Warranties are considered “creatures of contract” and therefore
“the language of the warranty itself is what controls and dictates the obligations and rights” of
the parties.
See Bakopolous v. Mars Petcare U.S., Inc.
,
In order “to be actionable under the theory of express warranty[,] the claim must be based
on an affirmation of fact or promise which is not a statement representing the seller’s opinion or
commendation of the goods and which is false.”
Weiss
,
iv. North Carolina
North Carolina law provides that “a seller creates an express warranty through ‘[a]ny
affirmation of fact or promise made by the seller to the buyer which relates to the goods and
becomes part of the basis of the bargain[.]’”
Asby v. Medtronic, Inc.
,
v. Florida
Under Florida law, “[a] seller can create an express warranty by making an affirmation of
fact to the buyer which relates to the goods and becomes part of the basis of the bargain between
the parties.”
Royal Typewriter Co. v. Xerographic Supplies Corp.
,
vi. Analysis The caselaw of New York, California, Illinois, North Carolina, and Florida governing whether a statement constitutes an express warranty shares the following common themes: a warranty is (1) an affirmation of fact or a promise—but not an opinion—made by the seller about the goods, (2) which constitutes part of the basis of the bargain between buyer and seller. A statement is more likely to be a warranty, rather than merely puffery, if it includes specific factual assertions or communicates information about which the seller has special knowledge, which the buyer would not be expected to share. Finally, whether a statement constitutes a warranty is a question of fact.
Here, the two claims contested by Plaintiffs are not mere opinions or commendations of the refill products. Both the up-to-270 claim and the one-year claim express detailed, measurable, factual assertions about the capacity of the refill products. Moreover, Plaintiffs would be unlikely to have any independent knowledge about the number of diapers their child would likely use in a year or how long a refill cartridge would likely last their family—it would be reasonable, therefore, for a Plaintiff to rely on Defendants’ statements on the packaging when considering their purchase. And Plaintiffs have, in fact, alleged that they viewed and relied on Defendants’ statements when deciding to purchase the refill products.
At this juncture, the Court cannot and need not determine whether Defendants’ claims in fact amounted to express warranties. Given the relevant caselaw, it is clear that Plaintiffs have alleged sufficient facts to state a claim for breach of express warranty.
Accordingly, Claim Eleven will proceed, except as to the Connecticut subclass. 2. Breach of Implied Warranty (Claim 12)
In order for goods to be merchantable, they must conform to a number of implied warranties, including that they “are fit for the ordinary purposes for which such goods are used” and that they “conform to the promise or affirmations of fact made on the container or label if any.” UCC §§ 2-314(2)(c), 2-314(2)(f).
Plaintiffs allege that Defendants have breached these implied warranties because: (1) the refill products “were not of the same average grade, quality, and value as similar goods sold under similar circumstances” and (2) they did not conform to the promises made on the container or label, in that they did not provide Plaintiffs with a year’s worth of diaper disposal products. Compl. ¶¶ 185–87.
Defendants argue that Plaintiffs’ implied warranty claims fail because they lacked privity with Defendants and because the refill products were fit for their ordinary purpose. Mem. at 51– 53.
Plaintiffs clarify that they have alleged breach of implied warranty claims not under a theory that the refill products are unfit for their ordinary purpose, but under a theory that they did not conform to the promises or affirmations of fact made on the container or label. Opp’n at 39. They further reply that privity is not always required for implied warranty claims, noting two exceptions. First, they argue that the privity requirement is relaxed where plaintiffs rely on written labels or advertisements of a manufacturer. Id. Second, they argue that the third party beneficiary doctrine in California, New York, Illinois, North Carolina, and Florida exempts Plaintiffs from the privity requirement. Id.
Defendants reply that, where an implied warranty claim is based solely on whether the
product in dispute conforms to the affirmations on the label, the claim “rises and falls with
express warranty claims brought for the same product.” Reply at 29 (citing
Butts v. Cibo Vita,
Inc.
, No. 22-cv-00644,
The Court mostly agrees with Defendants.
The two exceptions to the privity requirement identified by Plaintiffs are unavailing. First, as Defendants have argued, Plaintiffs have not alleged any of the facts necessary to invoke the third-party beneficiary exception: they have not pled the existence of a contract between Defendants and the third-party merchants from whom they bought the refill products, nor have they explained how such a contract was intended for their benefit. Second, although Plaintiffs argue that the privity exception for claims based on product labeling or advertising applies to implied warranty claims (as well as express warranty claims), the Court is unpersuaded. Plaintiffs have raised this argument only with respect to claims under California and New York law.
In California, although, as Plaintiffs acknowledge, the caselaw is “mixed,”
see
Opp’n at
40 n.9, the majority of courts apply the vertical privity requirement to implied warranty cases,
including those where a plaintiff has relied on written labels or advertisements of a manufacturer.
Some courts, including the ones noted by Plaintiffs, cite
Clemens v. DaimlerChrysler Corp.
, a
Ninth Circuit case, for the proposition that there is no privity requirement in such cases.
See
534
F.3d 1017, 1023 (9th Cir. 2008) (recognizing an exception to the privity requirement for breach
of warranty claims “when the plaintiff relies on written labels or advertisements of a
manufacturer”). But the
Clemens
decision did not clearly specify to which type of warranty this
exception applied, and the California Supreme Court case relied upon in
Clemens
explicitly held
that the vertical privity exception for representations on labels or advertisements “[is] applicable
only to express warranties.”
See In re ConAgra Foods, Inc.
,
As to the New York claim, even the case cited by Plaintiffs acknowledges that “[t]he law
is clear that, absent any privity of contract between Plaintiff and Defendant, [the implied
warranty] claim cannot be sustained as a matter of law except to recover for personal injuries.”
Weisblum v. Prophase Labs, Inc.
Thus, despite Plaintiffs’ arguments to the contrary, nearly all of the implied warranty
claims fail for lack of privity.
See Source One Fin. Corp. v. Rd. Ready Used Cars, Inc.
, No. CV-
13-6034341-S,
The single exception may be under North Carolina law. The North Carolina Products
Liability Act “removes the privity requirement for ‘a buyer, as defined in the Uniform
Commercial Code, of the product involved’ where the buyer brings ‘a product liability action
directly against the manufacturer of the product involved for breach of implied warranty.’”
Cruise
, 621 F. Supp 3d. at 590 (quoting N.C. Gen. Stat. Ann. § 99B-2). “Thus, a buyer who is
not in privity with the manufacturer can bring a breach of implied warranty claim,
notwithstanding the lack of privity.”
Johnson v. Smith & Nephew, Inc.
,
Accordingly, the Court grants Defendants’ motion to dismiss Count Twelve with prejudice, and only with respect to the North Carolina subclass, without prejudice.
3. Magnuson Moss Warranty Act (Claim 10)
The Magnuson-Moss Warranty Act (MMWA), 15 U.S.C. §§ 2301,
et seq.
, authorizes a
consumer to bring a private civil action in a federal district court against a manufacturer or
retailer who fails to comply with the terms of a written or implied warranty.
See
15 U.S.C. §
2310(d)(1)(B). The MMWA essentially incorporates state law on breach of warranty; it does not
create a separate substantive cause of action but rather sets parameters under which a state law
cause of action may be decided in federal court.
See Frasier v. Stanley Black & Decker, Inc.
, 109
F. Supp. 3d 498, 507 (D. Conn. 2015);
Chiarelli v. Nissan N. Am., Inc.
, No. 14-CV-4327 (NGG)
(VVP),
Based on Defendants’ alleged breach of implied and express warranties, Plaintiffs allege that Defendants have violated their statutory rights under the MMWA . Compl. ¶¶ 169–76.
Defendants argue that this Court does not have subject matter jurisdiction over Plaintiffs’ MMWA claim (Count 10) for two reasons. First, Defendants argue that Plaintiffs have not met the jurisdictional requirements of the MMWA, which provides that federal district courts may decide MMWA claims in class action suits only where there are more than 100 named plaintiffs. Mem. at 53 (citing 15 U.S.C. § 2310(c)(3) (“No claim shall be cognizable . . . if the action is brought as a class action and the number of named plaintiffs is less than one hundred.”)). Defendants argue that, unlike for the rest of Plaintiffs’ claims, the Class Action Fairness Act (CAFA) cannot confer subject matter jurisdiction where a class does not meet the independent jurisdictional requirements of the MMWA. Mem. at 53. Second, Defendants argue that Plaintiffs’ claim under the MMWA fails because Plaintiffs’ have not established the existence of a viable state warranty claim, on which any MMWA claim would depend. Mem. at 54.
Plaintiffs respond that this Court has subject matter jurisdiction over their MMWA claims because CAFA provides an alternative basis for jurisdiction for claims brought on behalf of a class under the MMWA. Opp’n at 40–41. Plaintiffs also argue that their state warranty claims are adequately pled and therefore may support their claim under the MMWA. Id. at 40.
The Court disagrees.
As a preliminary matter, because the Court has determined that a subset of Plaintiffs’ state warranty claims are viable, Defendants’ second argument is moot.
Second, there remains disagreement among courts about whether the MMWA’s
jurisdictional limitations supersede CAFA’s authorization of federal jurisdiction, and the Second
Circuit has not squarely addressed this issue, although courts within the Second Circuit have.
See
Weisblum
,
CAFA provides district courts with original jurisdiction over “any civil action” provided
that certain criteria are met.
[11]
28 U.S.C. § 1332(d)(2). There are several enumerated exceptions
to this grant of jurisdiction, including the “local controversy” exception, the “home state”
exception, and carve-outs for certain statutory provisions (
e.g.
certain provisions of the Securities
Act of 1933 and the Securities Exchange Act of 1934).
Weisblum
,
A relatively recent Ninth Circuit ruling, however, suggests that this is not the case, and
instead recognizes “the statutory language of the MMWA and of CAFA” as “irreconcilable—the
MMWA simply prevents claims under that Act from proceeding in federal court absent the
satisfaction of certain jurisdictional prerequisites.”
Floyd v. Am. Motor Co.
,
The Ninth Circuit’s reasoning—subsequently followed by a court within the Second
Circuit,
see Bayne v. Target Corp.
,
Accordingly, the Court grants Defendants’ motion to dismiss Claim Ten.
4. Remedies Defendants argue that Plaintiffs lack standing to pursue equitable or declaratory relief. Mem. at 58. First, they argue that Plaintiffs lack standing under Article III. Id. The Court has already addressed this argument above, and as such, will not address it again here.
The Court addresses Defendants’ other arguments in turn.
a. Injunctive or Declaratory Relief Defendants argue that Plaintiffs lack standing to pursue injunctive or declaratory relief because they cannot establish a “real or immediate threat of injury” Id. at 59.
Plaintiffs respond that plaintiffs have standing to seek prospective injunctive relief when they assert that they will purchase a product again in the future. Opp’n at 46. They further argue that this case is distinguishable from others, in which the plaintiffs merely wish to purchase a product again in the future if certain changes are made; here, they argue, Plaintiffs “allege that they continue to need to buy the products just to receive the quantity that they believed they purchased from the beginning.” Id. at 47.
Defendants reply that there is no reason to believe that Plaintiffs will incur new harm in
the future if they purchase the refill products, since “having been allegedly deceived by the
product’s packaging once, they will not be under the same misapprehension.” Reply at 38
(internal punctuation marks omitted). They argue that the Second Circuit has “squarely
foreclosed the possibility of injunctive relief for past purchasers.”
Id.
at 39 (citing
Berni v.
Barilla, S.p.A.
,
The Court agrees.
In
Berni
, on standing grounds, the Second Circuit reversed the district court’s
certification of a class under Fed. R. Civ. P. 23(b)(2), which provides that a class may be
certified where “the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.”
Berni
,
As Plaintiffs note, some courts within this Circuit have held to the contrary, and have
affirmed that such plaintiffs do have standing to seek prospective injunctive relief when they
assert that they will purchase a product in the future.
See, e.g.
,
DeCoursey
, 673 F. Supp. 3d at
224 (finding that the plaintiffs had sufficiently alleged future injury and therefore had standing to
seek injunctive relief, where the defendant continued to sell the products at issue and plaintiffs
had indicated that they would purchase the products again if they were safe for use or re-
labeled);
Morales v. Kimberly-Clark Corp.
, No. 18-CV-7401 (NSR),
Accordingly, the Plaintiffs have not pled facts sufficient to establish standing to seek declaratory and injunctive relief, and the claim for injunctive relief will be dismissed.
b. Equitable Relief
Defendants argue that Plaintiffs cannot bring claims for equitable relief under the UCL,
FAL, or CLRA because they because they have not shown that damages available under the
CLRA would be inadequate.
Id.
at 60 (citing
Sonner v. Premier Nutrition Corp.
,
Plaintiffs respond that the UCL and FAL have no inadequate remedy at law requirement. Opp’n at 48. Moreover, they contest Defendants’ reliance on Sonner , arguing that the decision was inconsistent with the Erie doctrine and Second Circuit caselaw. Id. Plaintiffs argue that, where a federal court exercises diversity jurisdiction over state law claims, the courts must grant and deny relief as the state courts would, and cannot deny substantive rights created by state law. Id.
Defendants reply that the
Sonner
court opinion relied on the
Erie
doctrine in reaching its
holding, and that federal courts’ “equitable authority remains cabined to the traditional powers
exercised by English courts of equity, even for claims arising under state law.” Reply at 39
(citing
Sonner
,
The Court agrees with Defendants.
In
Sonner
, contrary to Plaintiffs’ suggestion, the Ninth Circuit thoroughly and
thoughtfully considered how the
Erie
doctrine affected the ability of federal courts to award
equitable relief under state statutes that had eliminated the inadequate-remedy-at-law
requirement.
In any event, Plaintiffs have not pled any facts to suggest that monetary damages are inadequate or to demonstrate that they are entitled to any form of equitable relief.
Accordingly, the Court must dismiss Plaintiffs’ claims under the UCL and FAL, as well as any equitable claims under the CLRA. To the extent that Plaintiffs can plead additional facts that establish their standing to seek equitable relief, they may seek leave to amend their Complaint.
Claims Five and Six, as well as any part of Claim Four for equitable relief, are dismissed, and Plaintiffs may similarly seek leave to amend.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and DENIED in part .
The case will proceed as follows: [12] Claim One, the Connecticut Unfair Trade Practices Act claim, shall proceed only against Angelcare.
Claims Two and Three, the New York General Business Law § 349, and the New York General Business Law § 350 claims, shall proceed against both Defendants.
Claim Four, the California Consumer Legal Remedies Act, Cal. Civ. Code §§1750, et seq. , claim, shall proceed against Angelcare only, and only as to damages against that Defendant.
Claim Five, the California Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. , claim, is dismissed without prejudice.
Count Six, the California False Advertising Law, Cal. Bus. & Prof. Code §§ 17500, et seq. , claim, is dismissed without prejudice.
Claim Seven, the North Carolina Unfair and Deceptive Practices Act, §§ 75-1.1, et seq. , claim, shall proceed against both Defendants.
Claim Eight, the Illinois Consumer Fraud and Deceptive Practices Act, §§ 815 ILCS 505/1, et seq. , claim, shall proceed against both Defendants.
Claim Nine, the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201- 213 claim, shall proceed against both Defendants.
Claim Ten, the Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq. , claim, is dismissed with prejudice.
Claim Eleven, the breach of express warranty claim, shall proceed against both Defendants, except as to the proposed Connecticut subclass.
Procedure provides that leave to amend ‘shall be freely given when justice so requires,’ it is within the sound
discretion of the district court to grant or deny leave to amend.”) (quoting
Zahra v. Town of Southold
,
Claim Twelve, the breach of implied warranty claim, is dismissed with prejudice, except as to the proposed North Carolina subclass, whose dismissal shall without prejudice.
Any prayer for injunctive relief is dismissed with prejudice.
Any prayer for equitable relief is dismissed without prejudice.
SO ORDERED at New Haven, Connecticut, this 29th day of March, 2024.
____/s/ Victor A. Bolden___ VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE
Notes
[1] Where ECF-generated page numbers differ from internal page numbers, the ECF-generated page numbers are used.
[2] Defendants challenge the timeliness of claims under CUTPA, NYGBL, CLRA, FAL, and ICFA as against Playtex. Mem. at 57–58. They do not raise a statute of limitation issue as to Plaintiffs’ other state statutory claims, nor do they challenge the timeliness of any state law claims against Angelcare.
[3] The Court analyzes each state law claim—brought on behalf of the subclass located and injured in that state—
under the caselaw of that state. To the extent that Defendants suggest that Connecticut or Second Circuit law should
be applied to claims brought under other states’ consumer protection statutes, such an argument is unavailing.
See,
e.g.
,
Mantikas v. Kellogg Company
,
[5] Defendants do not specify to which claims this argument applies. In the subsequent discussion, however, they mention CUTPA, the North Carolina Unfair and Deceptive Trade Practices Act (“UDTPA”), the CLRA, the FAL, the ICFA, and California Unfair Competition Law (“UCL”).
[6] As addressed in greater depth in the sections below, the requirement that scienter be pled with factual specificity is not universal. Defendants cite only New York and Second Circuit cases to support their argument; however, these cases are inapplicable here, since claims under GBL §§ 349 and 350 are not subject to Rule 9(b). See Greene , 262 F. Supp. 3d at 67 (“Claims under GBL sections 349 and 350 are not subject to the pleading-with-particularity requirements of Rule 9(b)”). Other states have their own pleading standards for fraudulent intent under Rule 9(b); where relevant, these standards are addressed below.
[7] While Defendants present the argument in terms of the reasonable consumer test, not all states apply this standard to claims under their consumer protection or false advertising statutes. Accordingly, the Court broadly construes Defendants’ argument to assert that Plaintiffs have generally failed to state a claim upon which relief could be granted, under Federal Rule of Civil Procedure 12(b)(6).
[8] To the extent that Plaintiff argues that the Court should apply Second Circuit caselaw to ascertain the specific pleading requirements of Rule 9(b) for out-of-state claims, the Court is not persuaded. As with all other pleading requirements discussed in this Section, for each claim, the Court will apply the law of the state whose statute is invoked.
[9] The ICFA also allows claims alleging unfair practices, which need only meet the notice pleading standards of Fed.
R. Civ. P. 8(a).
Armbrister
,
[10] To the extent that Defendants rely on
Montanez v. D&D Auto, LLC
, No. 3:15-cv-397 (VAB),
[11] Because Defendants do not allege that Plaintiffs have failed to meet CAFA’s jurisdictional requirements, the Court need not address these provisions of the statute.
[12] The Court dismisses certain claims with prejudice because, as discussed at length in the legal analysis above, the
caselaw suggests that no version of these claims could survive, and amendment would therefore be futile.
McCarthy
v. Dun & Bradstreet Corp.
,