MEMORANDUM OPINION AND ORDER
In this consolidated, multi-district litigation (“MDL”), Plaintiffs
BACKGROUND
On February 6, 2015, the United States Judicial Panel on Multidistrict Litigation (the “MDL Panel”) transferred this MDL litigation to the undersigned, with the parties’ unanimous support. (See R.l.) At that time, the litigation consisted of individual actions pending in this District,
[T]hese actions involve common questions of fact, and that centralization will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. These actions share factual questions arising out of allegations that the deck and concrete resurfacing paint products manufactured and sold by the Rust Oleum Corporation under the Restore brand name are defective because they allegedly bubble, flake, chip, peel, or otherwisedegrade prematurely, contrary to the representations in defendant’s marketing, labeling, and product warranty. Plaintiffs in all actions further allege that defendants knew or should have known of the purported defects. The common questions of fact will include the design, manufacture, and testing of Restore products; the representations in the products’ marketing and labeling; Rust-Oleum’s policies and practices with respect to the warranties; and the measure of damages.
(R.l, at 1.)
I. The Complaint & Rust-Oleum’s Motion to Dismiss
On April 7, 2015, Plaintiffs filed their Consolidated Amended Class Action Complaint (the “Complaint”) naming 40 Plaintiffs from 27 states
Based on these allegations, Plaintiffs bring a putative class action against Rust-Oleum on behalf of all individuals and entities that purchased Restore, not for resale, “in the territories of the United States.” (Id., ¶¶ 101-02.) Plaintiffs’ ten-count Complaint asserts various claims under the laws of all 50 states and the District of Columbia in addition to individual state law claims. Count I seeks declaratory, in-junctive, or equitable relief under the Declaratory Judgment Act. (Id., ¶¶ 269-73.) Count II alleges a failure to comply with obligations under written and implied warranties, in violation of the Magnuson-Moss Warranty Act. (Id., ¶¶ 274-84.) Count III alleges breach of express warranties under the laws of every state. (Id., ¶¶ 285-92.) Counts IV and V allege breaches of the implied warranty of merchantability and the implied warranty of fitness for a particular purpose under the laws of every state. (Id., ¶¶ 293-313.) Count VI asserts violations of various state consumer-fraud statutes. (Id., ¶¶ 314-22.) Count VII claims violations of the false-advertising statutes of four states. (Id., ¶¶ 323-30.) Count VIII claims a violation of the California Consumer Legal Remedies Act. (Id., ¶¶ 331-38.) Count IX alleges negligent misrepresentation. (Id., ¶¶ 339-45.) Lastly, Count X claims fraudulent concealment. (Id., ¶¶ 346-51.)
Rust-Oleum argues that Plaintiffs’ Complaint fails to state a claim for relief under each of the alleged bases and that dismissal of each claim asserted by each Plaintiff is warranted here. (See R.32, at 2; R.32-1, Ex. A, Summary of Plaintiffs’ Claims and Alleged Grounds for Dismissal.) Specifical
II. Facts Alleged
Rust-Oleum sells do-it-yourself products for the consumer home improvement market. In particular, Rust-Oleum manufactures, markets, advertises, warrants, and sells a variety of deck coatings, including paints, stains, and resurfacers. (R.16, ¶ 56.) In September 2012, Rust-Oleum’s parent company, RPM International, Inc., acquired Synta, Inc. (“Synta”), a producer of wooden deck and concrete coatings. (Id., ¶ 57.) Synta’s primary product line, which Rust-Oleum took over upon acquisition, included a deck resurfacer developed by Synta and marketed as “Restore” to protect and restore weathered outdoor decks and concrete surfaces. (Id., ¶ 58.) Rust-Oleum sells Restore to consumers through retail home improvement stores which generally sell Restore without making any changes to its marketing materials or warranties. (Id., ¶ 59.)
A. Warranty
Restore’s packaging contains a “Limited Lifetime Warranty” which states:
LIMITED LIFETIME WARRANTY: Rust-Oleum Corporation guarantees product performance for the product in this can only as long as you own or reside in your home when our product was applied according to the label directions. You will receive as your exclusive remedy either a refund of the original purchase price or replacement with a product of equal value. We do not guarantee the product against factors beyond our control, such as damage to the product by others, poor condition of the substrate, structural defects, improper application, etc. We will not be responsible for labor or the cost of labor for removal or application of any product, or replacement of any wood structure.
(R.16, ¶¶ 63, 95, 96, 280, Exs. 1, 2.) The packaging and labeling surrounding the
LIMITED LIFETIME WARRANTY Rust-Oleum Corporation warrants your complete satisfaction with the performance of this product for as long as you own or reside in your home when our product has been applied to the label directions. We do not warrant problems with the product which are caused by factors beyond our control, such as damage to the product by others, poor condition of the substrate, structural defects, improper application, etc. If not satisfied as warranted, return any unused portion along with sales receipt to place of purchase. You will receive as your exclusive remedy either a refund of the original purchase price or replacement with a product of equal value. THIS WARRANTY SPECIFICALLY EXCLUDES LABOR OR COST OF LABOR FOR THE APPLICATION OF ANY PAINT AND CONSEQUENTIAL, INCIDENTAL DAMAGES. Some states do not allow the exclusion of incidental or consequential damages, so the limitation or exclusion contained in the above warranty may not apply to you. This warranty gives you specific legal rights and you may also have other rights which vary from state to state.
(R.16, ¶¶ 63, 95, 96, 280; id., attached to Compl. as Ex. 2.)
B. Alleged Misrepresentations
In marketing and selling Restore, Plaintiffs allege that Rust-Oleum made numerous misrepresentations to consumers about Restore’s purported qualities on product labels and packaging, including, for example: “repairs decking”, “the smart alternative to deck and concrete replacement”, “locks down wood splinters”, “revives wood and broom swept concrete”, “lasting moisture protection”, and “liquid armor resur-facer”. (R.16, ¶ 61.) Rust-Oleum also provides information about Restore on its website and in other advertising and promotional materials that Plaintiffs allege constitute misrepresentations that Restore:
• “lasts 10 to 12 years and in fact it comes with a life time warrantee”;
• “lasts 3x longer than deck stain with less maintenance”; .
• is a “low-maintenance, long-lasting alternative to the endless cycle of repairing and repainting”;
• is “tough, resilient coating over existing decking” which “lasts for years with less maintenance than deck paints or stains! Satisfaction guaranteed”;
• “last[s] for years with little maintenance”;
• “extend[s] the life” of a deck by providing a “tough, durable coating”;
• “tested tough for 12 + years”;
• “provide[s] lasting protection against moisture and the damaging effects of the sun”;
• provides a “protective barrier from Mother Nature’s harsh elements”;
• has “superior weather resistance” and “ultimate water repellency”; and
• “is an easy to apply repair coating that revives the surface while offering maximum protection to preserve the deck for years to come.”
(R.16, ¶ 67; see also id., ¶¶ 68-71.)
C. Restore’s Performance
According to Plaintiffs, Restore does not perform as warranted, and Rust-Oleum’s representations are false, misleading and fail to disclose material information. (R.16, ¶ 72.) Plaintiffs allege that Rust-Oleum failed to disclose that Restore (1) sepa
LEGAL STANDARD
“A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.” Camasta v. Jos. A Bank Clothiers, Inc.,
Under Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly,
Under Rule 9(b), a party pleading fraud must “state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). Moreover, in pleading fraud in federal court, Rule 9(b) imposes a higher pleading standard than that required under Rule 8(a)(2). See Bank of America, N.A. v. Knight,
ANALYSIS
Plaintiffs’ Complaint asserts various claims under the laws of all 50 states and the District of Columbia in addition to individual state law claims. Count I seeks declaratory, injunctive, or equitable relief under the Declaratory Judgment Act. (R.16, ¶¶ 269-73.) Count II alleges a failure to comply with obligations under written and implied warranties, in supposed violation of the Magnuson-Moss Warranty Act. (Id., ¶¶ 274-84.) Count III alleges breach of express warranties under the laws of every state. (Id., ¶¶ 285-92.) Counts IV and V allege breaches of the implied warranty of merchantability and the implied warranty of fitness for a particular purpose under the laws of every state. (Id., ¶¶ 293-313.) Count VI asserts violations of various state consumer-fraud statutes. (Id., ¶¶ 314-22.) Count VII claims violations of the false-advertising statutes of four states. (Id., ¶¶ 323-30.) Count VIII claims a violation of the California Consumer Legal Remedies Act. (Id., ¶¶ 331-38.) Count IX alleges negligent misrepresentation. (Id., ¶¶ 339-45.) Lastly, Count X claims fraudulent concealment. (Id., ¶¶ 346-51.) The Court addresses each count in turn.
I. Rust-Oleum’s Challenge to Count I is Premature
In Count I, Plaintiffs assert a claim for “declaratory and injunctive and/or equitable relief.” (R.16, ¶¶ 269-273.) Rust-Oleum argues that Plaintiffs’ claim fails as a matter of law because declaratory, injunctive, and equitable relief are remedies, not independent causes of action and that the claim is duplicative of its prayer for relief. Plaintiffs respond that Rule 23 authorizes a nationwide class to seek declaratory, in-junctive relief and/or equitable relief where the defendant “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.” Fed. R. Civ. P. 23(b)(2).
The Federal Declaratory Judgment Act (“DJA”) provides that, subject to certain exceptions, “[i]n a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing
Plaintiffs allege Count I on behalf of a putative class: residents of the United States and its Territories. (See R.16, ¶¶ 269-273.) Plaintiffs further indicate that they seek to represent a multistate class composed of residents of all 50 states and the District of Columbia. (See R.66, at 62.) Indeed, the allegations in Count I state that “[t]he requested relief will generate common answers that will resolve controversies that lie at the heart of this litigation and will allow Plaintiffs to obtain relief that directly redresses the injury suffered. Resolving these issues will eliminate the need for continued and repeated litigation.” (R.16, ¶ 273.) The injunctive relief sought in Count I is not identical to the relief sought in Plaintiffs’ Prayer for Relief because the relief in Count I is broader and more specific. While the Prayer for Relief, for example, echoes the requests in Count I that the Court declare the Rust-Oleum warranty limits unconscionable, that Restore has a propensity to prematurely fail, and that Rust-Oleum knew and/or should have known that Restore had a propensity to prematurely fail, the injunctive relief in Count I further seeks a declaration that Rust-Oleum is required to disclose to consumers that Restore’s propensity to prematurely fail causes damage, including to other property. (See R.16, ¶ 276.)
Furthermore, Plaintiffs’ claim for injunc-tive relief is sought on behalf of a putative class. The Seventh Circuit teaches that “[b]y virtue of its requirement that the plaintiffs seek to redress a common injury properly addressed by a class-wide injunc-tive or declaratory remedy, Rule 23(b)(2) operates under the presumption that the interests of the class members are cohesive and homogeneous such that the case will not depend on adjudication of facts particular to any subset of the class nor require a remedy that differentiates materially among class members.” Lemon v. Int’l Union of Operating Eng’rs, Local No. 139, AFL-CIO,
The Court, therefore, finds Rust-Ole-um’s arguments premature at this stage as it has not raised an issue of standing and the proper inclusion and scope of injunc-tive relief for a class action is more appropriately addressed in regard to class certification — including a determination of whether Count I, as alleged, redresses a common injury and is the predominate form of relief sought. See, e.g., Santiago v. RadioShack Corp., No. 11 C 3508,
II. Counts II-V: Breach of Warranty Claims
Counts II through V assert a series of breach of warranty claims. Count II alleges breaches of written and implied warranties under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (“MMWA”). Count III alleges breaches of written and other express warranties under Section 2-313 of the U.C.C., as variously adopted by all 50 states and the District of Columbia. For those same jurisdictions, Counts IV and V allege breaches of the implied warranty of merchantability under U.C.C. § 2-314 and the implied warranty of fitness for a particular purpose under U.C.C. § 2-315, with Count IV covering states that allegedly do not require privity and Count V covering those states that do.
A. MMWA & State Law Claims for Breach of Warranty
State law governs the U.C.C. claims and, with narrow exceptions, also
Rust-Oleum contends that under the various state laws that apply to Plaintiffs’ individual breach of warranty claims, roughly six grounds for dismissal exist that to varying degrees cut across the four relevant counts and collectively require dismissal of each breach of warranty claim asserted by each Plaintiff. The Court addresses each argument below and notes a common thread weaved into its analysis: the issues Rust-Oleum argues are fact intensive and generally not appropriate for resolution on a motion to dismiss.
Plaintiffs allege two warranties relating to Rust-Oleum’s Restore products. Specifically, the Restore Instructions included a “Limited Lifetime Warranty” which states:
LIMITED LIFETIME WARRANTY: Rust-Oleum Corporation guarantees product performance for the product in this can only as long as you own or reside in your home when our product was applied according to the label directions. You will receive as your exclusive remedy either a refund of the original purchase price or replacement with a product of equal value. We do not guarantee the product against factors beyond our control, such as damage to the product by others, poor condition of the substrate, structural defects, improper application, etc. We will not be responsible for labor or the cost of labor for removal or application of any product, or replacement of any wood structure.
(R.16, ¶¶ 63, 95, 96, 280; R.16, attached to Compl. as Ex. I.)
LIMITED LIFETIME WARRANTY Rust-Oleum Corporation warrants your complete satisfaction with the performance of this product for as long as you own or reside in your home when our product has been applied to the label directions. We do not warrant problems with the product which are caused by factors beyond our control, such as damage to the product by others, poor condition of the substrate, structural defects, improper application, etc. If not satisfied as warranted, return any unused portion along with sales receipt to place of purchase. You will receive as your exclusive remedy either a refund of the original purchase price or replacement with a product of equal value. THIS WARRANTY SPECIFICALLY EXCLUDES LABOR OR COST OF LABOR FOR THE APPLICATION OF ANY PAINTAND CONSEQUENTIAL, INCIDENTAL DAMAGES. Some states do not allow the exclusion of incidental or consequential damages, so the limitation or exclusion contained in the above warranty may not apply to you. This warranty gives you specific legal rights and you may also have other rights which vary from state to state.
(R.16, ¶¶ 63, 95, 96, 280; id., attached to Compl. as Ex. 2.)
According to Rust-Oleum, each bucket or can of Restore sold to Plaintiffs came with this written warranty that includes two independent limitations on the relief available with respect to any breach of warranty claim. First, the written warranty contains an exclusive-remedy provision that Rust-Oleum argues limits any unsatisfied Restore customer to “either a refund of the original purchase price or replacement with a product of equal value.” (R.32, at 5 (citing R.16, Exs. 1, 2).) Rust-Oleum contends that the Court should dismiss the breach of warranty claims for the 25 Plaintiffs who either received or were offered a refund based on the exclusive-remedy provision. Second, the written warranty also contains a consequential-damages exclusion, which differs in the two warranties attached to the complaint, but either of which, Defendant argues, separately precludes recovery of consequential damages such as the costs of applying or removing any product or replacing any structure. (Id.) This exclusion, Rust-Oleum argues, requires the Court to dismiss all of Plaintiffs’ breach of warranty claims seeking consequential damages.
Plaintiffs respond that Rust-Oleum’s argument based on the exclusive-remedy provision does not overcome Plaintiffs’ allegations that those remedies fail of their essential purpose and that this defense turns on a question of fact that is inappropriate for resolution on a motion to dismiss. (See R.66, at 7.) Plaintiffs further argue that Rust-Oleum’s argument regarding the consequential-damages exclusion is similarly deficient because Plaintiffs’ damages are direct, the exclusion clause is not conspicuous, and the limits on any consequential damages are unconscionable. (Id.) Furthermore, Plaintiffs reiterate that these issues are premature in the absence of a factual record.
1. Breach of Warranty Claim
An explicit promise by the seller with respect to the quality of the goods and that is part of the bargain between the parties creates an express warranty “that the goods shall conform to the affirmation or promise.” U.C.C. § 2-313. “To state a breach of express warranty claim, a plaintiff ‘must allege the terms of the warranty, the failure of some warranted part, a demand upon the defendant to perform under the warranty’s terms, a failure by the defendant to do so, compliance with the terms of the warranty by the plaintiff, and damages measured by the terms of the warranty.’ ” Disher v. Tamko Bldg. Products, Inc., No. 14-CV-740-SMY-SCW,
Plaintiffs sufficiently plead a claim for breach of warranty. Plaintiffs allege that Rust-Oleum made several express warranties and representations regarding Restore that became part of the basis of the bargain between the parties, including various statements on the product labels, online, and in advertising. (See R.16, ¶¶ 286, 287.) Plaintiffs further allege that Rust-Oleum breached the express warranty by providing Restore in a condition that did not satisfy the warranty obligations of e.g., “guarantee[d] product performance ... when our product was applied according to label directions”, “low maintenance, long-lasting”, “lasts for years ... ”, “tested tough for 12 + years”, and “provide lasting protection ...” (Id., ¶¶ 286, 288.) Plaintiffs also allege that they have complied with the warranty obligations, including application instructions, but that Rust-Ole-um has failed to comply with the warranty terms, after receiving notice of the problems. (Id., ¶ 290.) Further, Plaintiffs allege that after applying Restore “to decking surfaces, it will prematurely crack, peel, flake, chip, bubble, pucker, separate, dela-minate, discolor, and generally degrade, and it has the propensity to cause damage to decks and other property of the class.” (Id., ¶ 76.) Lastly, Plaintiffs allege that Rust-Oleum has known about consumer complaints for years, at least through its online complaints and photos posted on its Facebook pages in addition to the internal systems Plaintiffs allege Rust-Oleum uses to monitor product performance and consumer complaints. (See id., ¶¶ 76-78, 82-92.)
Rust-Oleum does not challenge Plaintiffs’ breach of warranty claims based on the above allegations, but instead challenges Plaintiffs’ allegations as deficient based on their failure to overcome the limitations placed on their remedies by two provisions in the express warranty: the exclusive-remedy provision and the consequential-damages exclusion provision.
2. Plaintiffs Have Sufficiently Pled a Breach of Warranty Claim Despite the Lifetime Warranty’s Exclusive-Remedy Provision
The U.C.C., as adopted in each of the Plaintiffs’ home states, expressly provides that a warranty can “limit[ ] the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts” by describing the limited remedy as “exclusive.” See U.C.C. § 2-719.
Furthermore, Rust-Oleum asserts that the breach of warranty claims (Count II-V) asserted by various Plaintiffs “must be dismissed so long as the exclusive-remedy provision is valid and enforceable. Which it is.” (R.32, at 7-8.) Rust-Oleum proceeds to address — under the relevant state’s laws'— the validity of the exclusive-remedy provision, arguing that it does not fail of its essential purpose. (Id. at 8-14.) Plaintiffs respond substantively, but also assert that the inquiry of whether an exclusive-remedy provision fails of its essential purpose is fact-driven and inappropriate for resolution at this stage. The Court agrees. Courts in many of the relevant states have routinely characterized a determination of whether an exclusive-remedy provision fails of its essential purpose as a question of fact. See, e.g., Demorato v. Carver Boat Corp.,
Indeed, factual inquiries — such as whether Restore had any latent defects present — will not be adequately determined absent discovery, and underlie the determination of whether an express warranty failed of its essential purpose. As alleged, Plaintiffs’ Complaint supplies “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence” supporting the allegations of a latent defect. See Indep. Trust Corp.,
Rust-Oleum argues that once a determination of latency is made, the Court must also look at any unanticipated circumstances because “it may be that the parties bargained for. an allocation of risk relating to latent defects.” (Id. at 4.) The Court does not need to make a determination at this stage, however, as to whether this additional step in its analysis is required, but merely notes that if it is, it only serves to weaken Rust-Oleum’s position in its motion to dismiss, as such a determination relies on additional factual inquiries relevant to the relationship of the parties and the anticipated circumstances surrounding use of the product to determine whether the exclusive-remedy provision had a pre-clusive effect on Plaintiffs’ breach of ex
Because of the presence of numerous factual issues surrounding Rust-Oleum’s breach of warranty argument based on its exclusive-remedy provision, the Court finds that a decision at this early stage of the litigation is inappropriate. Accordingly, the Court denies Rust-Oleum’s motion to dismiss Counts II and III based on the exclusive-remedy provision.
3. Plaintiffs Have Sufficiently Pled a Breach of Warranty Claim, Despite the Warranty’s Consequential-Damages Exclusion Provision
Rust-Oleum contends that even if the exclusive-remedy provision is enforceable, the separate provision in its Restore express warranty excluding consequential damages independently requires dismissal of all of Plaintiffs’ claims for consequential damages under Counts II-V. (R.32, at 15.) Specifically, Rust-Oleum argues that Plaintiffs’ Complaint does not adequately plead which warranty — of the two versions attached to the complaint — each Plaintiff received, but that regardless, the plain language of either version precludes recovery for the costs of removing Restore from structures to which it is applied and the costs of repairing or replacing those structures. (See id.) Plaintiffs reply that a determination as to whether Plaintiffs’ damages are direct or consequential is premature for' the same reason that the issue of whether the remedy fails of its essential purpose is premature — because it is a factual determination that requires development of the factual record and the allegations presented raise a reasonable expectation that’discovery will reveal supporting evidence. Specifically, Plaintiffs argue that a determination as to the foreseeability of the damages must'be conducted first, and such a determination requires an understanding of Rust-Oleum’s representations, .promises, and warranties, as well as the degree to which Plaintiffs’ needs are incorporated into such promised performance — inquiries that require a sufficient factual record that does not yet exist. In addition, Plaintiffs argue that even if the damages are consequential, the consequential-damages exclusion is unenforceable because it is unconscionable.
a. Direct vs. Consequential Damages
“Contract law distinguishes between direct and consequential damages, the difference lying in the degree to which the damages are a foreseeable (that is, a highly probable) consequence of a breach.” Rexnord Corp. v. DeWolff Boberg Assocs.,
Section 2-715(2) of the U.C.C. defines “consequential damages” to include “(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and (b) injury to person or property proximately resulting from any breach of warranty.” U.C.C. § 2-715(2). Section 2-714(2) of the U.C.C. defines direct damages more narrowly as “[t]he measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.” The definitions are not alone definitive, however, as “[djamages that might be consequential under one contract can be direct or ordinary under another.” Biovail Pharms, Inc. v. Eli Lilly & Co., 5:01-CV-352-BO(3),
Rust-Oleum argues that the allegations make clear that the removal, replacement, and repair costs Plaintiffs seek qualify as consequential damages. First, Rust-Oleum contends that Plaintiffs expressly plead that the alleged compensatory damages beyond a refund are consequential damages, e.g., costs of removing Restore, replacing it with another product, and repairing any damage to decks. In particular, Rust-Oleum points to Plaintiffs’ Complaint that alleges they incurred “significant consequential damages” ... “above and beyond the ‘limited’ warranty”. (R.16, ¶ 98; see also id., ¶¶ 320, 330 (requesting repair costs, replacement costs, and “other consequential and incidental damages”).) Plaintiffs’ Complaint also, however, “seek[s] to recover damages caused as a direct result of Defendant’s breach of its written and implied warranties and its deceitful and unlawful conduct. Damages include, inter alia, labor and other costs associated with removing Restore and replacing decking structures and similar structures.” (Id., ¶ 282; id., ¶ 292 (“[a]s a direct and proximate result of the breach of the express warranty, Plaintiffs have suffered damages, injury in fact and/or ascertainable
Rust-Oleum further asserts that Plaintiffs’ damages are not direct because the costs depend entirely on each Plaintiffs individual deck materials, deck conditions, product application, weather conditions, and product degradation, and thus would not follow every breach in the ordinary course. (See R.77, at 7.) Rust-Oleum further notes that based on the presence of individual factors such as these, courts have repeatedly held that similar demands for removal, replacement, and repair costs seek consequential, not direct, damages. (Id.) As with many other cases upon which Rust-Oleum relies, these cases dealt with consequential damages on summary judgment and/or did not address the distinction between direct or consequential damages. In addition, many of these cases also addressed issues of unconscionability, which as discussed infra, present factual inquiries rendering resolution on a motion to dismiss inappropriate. See, e.g., Farrar & Farrar Farms v. Miller-St. Nazianz, Inc.,
Similarly, Rust-Oleum’s argument that the plain language of the provision itself makes clear that the damages are consequential is not persuasive. The warranty excludes payment for “labor or costs of labor for removal or application of any product, or replacement of any wood structure” or “labor or cost of labor for the application of any paint and consequential, incidental damages”. (R.16, Exs. 1 & 2.) Indeed, taking the facts and reasonable inferences in the light most favorable to Plaintiffs, this language does not show an intent to treat removal, replacement and repair costs as consequential damages be-, cause it lists consequential and incidental damages separately, in addition to labor or cost of labor for removal or application of the product or replacement of the wood structure. This differs from the language used in the cases upon which Rust-Oleum relies. See City of New York v. Bell Helicopter Textron, Inc., No. 13 CV 6848(RJD)(SMG),
Plaintiffs have alleged that the express warranty promised that Rust-Oleum “guarantees product performance for the product in this can only as long as you own or reside in your home when our product was applied according to the label directions.” (See R.16, ¶ 95; id, Exs. 1, 2.) Plaintiffs have also alleged that Plaintiffs and many of those authoring consumer complaints applied Restore “in accordance with the instructions provided by Defendant”. (See, e.g., R.16, ¶¶ 80, 81, 116, 117, 121, 124, 128, 132, 136, 140, 144, 147, 150, 153, 156, 160, 164, 167, 171, 175, 179, 183, ■187, 290.) Taking all the reasonable inferences in Plaintiffs’ favor, they have alleged factual support for a finding that the damages resulting from application of Restore to surfaces following the instructions, constitute direct damages which were bargained for as expressly embodied in Rust-Oleum’s own warranty provision. Accordingly, Plaintiffs have sufficiently alleged a factual basis supporting a finding of direct damages which precludes dismissal of their claim at this early stage. See, e.g., JPS Elastomerics Corp. v. Indus. Tools Inc.,
b. Unconscionability
Even if the Court treated Plaintiffs’ damages as consequential, however, the Court must still assess whether the consequential-damages exclusion provision is unconscionable, as Plaintiffs also allege. Factual issues exist including the parties’ relationship, the adequacy of the bargaining position, and the existence of meaningful alternatives available, that preclude a determination at this stage as to whether Rust-Oleum’s express warranty is unconscionable.
“Under the UCC, a contract term limiting parties’ ability to recover consequential damages is enforceable unless the provision is unconscionable.” Scott,
Here, factual inquiries exist as to the relationships between and relative positions of the parties, the adequacy of the bargaining position, and the existence of meaningful alternatives available to Plaintiffs. See, e.g., Bennett,
In addition, Plaintiffs’ allegations are sufficient to satisfy the pleading standard to allow a reasonable inference that Rust-Oleum had knowledge of the alleged latent defect during the relevant time period of the present action, where the Complaint specifically alleges that customers voiced complaints against the product at least as early as 2011 when consumers complained about Synta’s Restore product peeling and pulling away from the surface three months after application. (See, e.g., R.16, ¶ 88.) Furthermore, Plaintiffs allege that after Rust-Oleum purchased Synta, it had access to Synta’s customer complaint files and could review numerous online complaints about Synta’s Restore product. (R.16, ¶ 87.)
Accordingly, taking the allegations and facts in the light most favorable to Plaintiffs, the Court denies Rust-Oleum’s motion to dismiss the breach of express war
B. Plaintiffs’ Allegations Fail to State a Claim that Restore’s Limited Lifetime Warranty is Unenforceable as Conspicuous
Plaintiffs allege that the Restore written warranty’s “limitations are not sufficiently set apart by underlining or highlighting,” resulting in a “lack of conspicuousness” that they allege violates §§ 2302(a), 2304(a)(3), 2308(a), and 2308(c) of the MMWA. (See R.16, ¶ 280.) Plaintiffs further allege that under state law, Rust-Oleum “has not sufficiently disclaimed the implied warranty of merchantability (specifically and conspicuously) or the implied warranty of fitness (in writing and conspicuously).” (R.16, ¶¶ 298, 308.) Rust-Oleum argues that Restore’s Lifetime Limited Warranty is sufficiently conspicuous as required by state law. Namely, Rust-Oleum contends that the MMWA contains no requirements- for consequential-damages exclusions or limitations to appear conspicuously on a limited warranty (as opposed to a full warranty). In addition, Rust-Oleum argues that the consequential-damages exclusion does not disclaim or modify an implied warranty, but instead restricts the available relief for breach of warranty and that Plaintiffs have failed to allege warranties that are inconspicuous under the U.C.C. where the Limited Lifetime Warranty includes a bold and capitalized title. (See R.32, at 21-25; R.77, at 8-10.) Plaintiffs respond that “[i]n order to be enforceable ... warranty disclaimer language (not simply the title) must be conspicuous”, and that the warranty limitations “buried within the warranty and printed in the same size letters as the rest of the agreement” fail to sufficiently distinguish the warranty from the rest of the agreement. (See R.66, at 20.)
Plaintiffs allege that Rust-Oleum violated Sections 2302(a), 2304(a)(3), 2308(a), and 2308(c) of the MMWA for the limited warranty’s lack of conspicuousness. (See R.16, ¶ 280.) The MMWA is a “remedial statute designed to protect consumers from deceptive warranty practices.” Anderson v. Gulf Stream Coach, Inc.,
Here, Plaintiffs allege that “Defendant places a written ‘lifetime limited warranty’ on the packing of Restore.” (See R.16, ¶ 280.) Plaintiffs further attach to, and incorporate into, their Complaint, two exhibits which show the limited warranty contained in the Restore packaging which is prefaced by bold, capitalized letters stating “LIMITED LIFETIME WARRANTY”. 6See R.16, ¶ 63; id., Ex. 1, Ex. 2.) Even taking all facts and reasonable inferences in Plaintiffs’ favor, the allegations fail to support a claim that the Restore limited lifetime warranty is insufficiently conspicuous as required by the MMWA because the warranty is clearly labeled as “limited” and the MMWA’s statutory requirements for conspicuousness are, therefore, inapplicable.
The MMWA does, however, allow consumers to enforce written and implied warranties in federal court, borrowing state law causes of action — as Plaintiffs have alleged here. Anderson,
Even if inconspicuousness provided a ground for invalidation of the remedy limitations, however, Plaintiffs’ allegations fail to support such a claim. Under U.C.C. § 1-201(b)(10), a term is “conspicuous” when
Rust-Oleum asserts that the 15 Plaintiffs who have not yet alleged a refund payment or offer fail to state a breach of warranty claim because they fail to allege factual support that those Plaintiffs provided Rust-Oleum with pre-suit notice of their alleged problems with Restore. Plaintiffs respond that: (1) whether notice is sufficient is a question of fact not suitable for a motion to dismiss; (2) claims of direct notice for 3 of the 15 Plaintiffs should be sustained; (3) Plaintiffs sufficiently allege actual notice; and (4) certain Plaintiffs provided notice by service of the Complaint. (See R.66, at 22-27.)
The U.C.C. provides that a buyer of goods “must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.” See U.C.C. § 2-607.
Plaintiffs argue that whether and to what extent notice is sufficient is a question of fact not susceptible to a motion to dismiss. See, e.g., Maldonado v. Creative Woodworking Concepts, Inc.,
Rust-Oleum argues that for 12 of the 15 Plaintiffs (Reyes, Patterson, Dockstader, Shogren, Riello, Dorgan, Fernandez, McLamb, Renzi, Ledfor, Reynolds, and McCain), that the Complaint makes no allegations that they provided notice to Rust-Oleum before filing suit. This is not the case, however, as the Complaint alleges that “[o]nce Plaintiffs purchased Restore and incurred damages, Plaintiffs promptly notified Defendant of Restore’s premature failure and filed this action and related lawsuits.” (See R.16, ¶ 94.) The Complaint further alleges that the remaining 3 of the 15 Plaintiffs who Rust-Oleum challenges here, specifically “notified Defendant that Restore was prematurely failing” and “resulting in permanent damages to the deck.” (See, e.g., R.16, ¶ 133, 180, 191.) These allegations suffice at the early stage of this litigation as allegations of direct notice for the 15 Plaintiffs. See Much v. Sears Roebuck & Co., No. 06-cv-07023,
In addition, Plaintiffs have sufficiently alleged factual support for one of the exceptions to direct notice — actual knowledge of the defendant. In particular, Plaintiffs have alleged that Rust-Oleum “knew and had notice that Restore had the propensity to prematurely fail” and that Rust-Oleum “knew or should have known that the product would not meet the claims and promises and representations the company affirmatively made to consumers on product packaging, uniform brochures, online marketing, and through other advertisements.” (R.16, ¶¶ 82, 281.) Plaintiffs further allege that Rust-Oleum was a merchant in the business of manufacturing, marketing, and selling Restore and “had internal systems that likely showed Restore’s defects, and Defendant had notice of consumer complaints for years, which demonstrated that consumers were needing to repair and/or replace decks and other property.” (R.16, ¶ 97; see also id., ¶¶ 270, 281, 291, 296, 298, 306, 308, 327, 343.) Additionally, Plaintiffs allege that Rust-Oleum had knowledge of Restore’s defects through pre-and post-sale audits, field testing, numerous online consumer complaints, relaying that the instructions were followed as directed, and that within months, the product peeled, cracked, bubbled, and that customers “contacted [Rust-Oleum’s] warranty/claims office.” (R.16, ¶¶ 80-88, 343.) These allegations are sufficient at this early stage to allege an exception to pre-suit notice based on Rust-Ole-um’s knowledge of the issues with Restore products sold to Plaintiffs and the putative class. See L.Zingerman, D.D.S., P.C. v. Nissan N. Am., Inc., No. 14 C 7835,1
Lastly, “state law varies as to what must be pleaded to satisfy the notice requirement”. In re Caterpillar, Inc., C13 & C15 Engine Prods. Liab. Litig., No. 1:14-CV-3722 JBS-JS,
In some states, mere knowledge of a defect or constructive notice prior to suit is not enough, while in others it is. Compare Fowler v. Goodman Mfg. Co. LP, Civ. 14-968,2014 WL 7048581 , at *5 (N.D.Ala. Dec. 12, 2014) (Alabama) (“Contrary to plaintiffs’ argument, a general awareness on Apple’s part of alleged defects in its iPhone does not extinguish the purposes of the notice requirement, nor does it substitute for that requirement under Alabama law.”) with Martin v. Ford Motor Co.,765 F.Supp.2d 673 , 683 (E.D.Pa.2011) (Pennsylvania) (finding allegations that defendant was aware for years of axle problems in vehicle due to widespread complaints on the internet and elsewhere and complaints by plaintiffs directly to defendant sufficient to satisfy notice requirement). In others, filing the complaint is sufficient to provide notice. See Strzakowlski v. Gen. Motors Corp., Civ. 04-4740,2005 WL 2001912 , at *3 (D.N.J. Aug. 16, 2005) (New Jersey). Elsewhere, such filing is not sufficient. See Hobbs v. Gen. Motors Corp.,134 F.Supp.2d 1277 , 1285 (M.D.Ala.2001) (filing of a lawsuit itself constitutes sufficient notice only if personal injuries are involved); Tasion Commc’ns, Inc. v. Ubiquiti Networks, Inc., Civ. 13-1803,2014 WL 1048710 , at *4 (N.D.Cal. Mar. 14, 2014) (“Given the purpose of the rule, courts have expressly held that the notice must be provided before the lawsuit-notice that is after, or contemporaneous with, the filing of the lawsuit is insufficient.”). Moreover, in some states, notice is not required where plaintiff asserts a warranty claim against a remote manufacturer. See Sanders v. Apple Inc.,672 F.Supp.2d 978 , 989 (N.D.Cal.2009) (“[T]imely notice of a breach of an express warranty is not required where the action is against a manufacturer and is brought “by injured consumers against manufacturers with whom they have not dealt.)
D. Implied Warranty Claims
Counts IV and V allege breaches of the implied warranty of merchantability under U.C.C. § 2-314 and the implied warranty of fitness for a particular purpose under U.C.C. § 2-315, with Count IV covering states that do not require privity and Count V covering those states that do. (R.16, ¶¶ 293-313.)
1. Breach of Implied Warranty of Fitness for a Particular Purpose under U.C.C. § 2-315
Rust-Oleum asserts that Plaintiffs’ claims for breach of the implied warranty of fitness for a particular purpose independently warrant dismissal because the Complaint fails to plead the requisite “particular purpose”. Plaintiffs respond that the Complaint sufficiently alleges a particular purpose for which Restore is used and that it would be improper at this stage of the' litigation to engage in fact-finding to re-' solve whether the implied warranty of fitness arises here.
To state a claim for breach of implied warranty of fitness for a particular purpose, Plaintiffs must allege that “(1) the seller had reason to know of the particular purpose for which the buyer required the goods; (2) the buyer relied on the seller’s skill and judgment to select suitable goods; and (3) the seller knew of the buyer’s reliance on its skill and judgment.” In re McDonald’s French Fries Litig.,
Plaintiffs allege that Rust-Oleum misrepresented Restore’s qualities on product labels and packaging, including statements that Restore “repairs decking”, is “the smart alternative to deck & concrete replacement”, “locks down wood splinters”, “revives wood & broom swept concrete”, provides “lasting moisture protection”, and is a “liquid armor resurfa-cer”. (R.16, ¶ 61.) The Complaint further alleges that Restore “lasts 3X longer than deck stain with less maintenance”, has “superior weather resistance” and “ultimate water repellency”, and is “an easy to apply repair coating that revives the surface while offering maximum protection to preserve the deck for years to come”. (Id., ¶ 67.) Plaintiffs assert that Rust-Oleum impliedly warranted to Plaintiffs (and to Plaintiffs’ agents) that Restore was ... fit for its ordinary purpose of resurfacing decks and similar structures, and was fit for its particular purpose of providing protection to deck structures form [sic] harsh weather conditions and lasting longer than ordinary deck paints or stains.” (Id., ¶ 294; see also id., ¶ 295 (“the product was not fit for its ordinary purpose as a deck resurfa-eer”).) Furthermore, Plaintiffs allege that Restore was “unfit for its ordinary use and was not of merchantable quality, as warranted by Defendant, because it was defective and had the propensity to crack, peel, flake, chip, bubble, pucker, separate and generally degrade.” (Id., ¶ 295.) Additionally, Plaintiffs state that:
Restore was similarly unfit for its particular purpose. At the time Plaintiffs purchased Restore, Defendant knew, or should have known, that the product would be used as an exterior resurfacing product for decks and related structures subject to certain extreme conditions, including high temperature and humid weather in the summer and freezing temperatures, ice, snow, and dry air in the winter. Plaintiffs (and Plaintiffs’ agents) reasonably relied on the. skill and judgment of Defendant in selecting and furnishing a suitable product for this purpose. However, Defendant’s product was not suitable for this purpose at the point of sale because it had the propensity to prematurely fail, did not withstand harsh weather, and did not last longer than ordinary deck paint or stain.
(Id., ¶ 296.)
■ Rust-Oleum argues that Plaintiffs’ allegations improperly conflate the ordinary
Plaintiffs’ allegations set forth a purported distinction between Restore’s ordinary purpose of resurfacing decks and similar structures, and its particular purpose of providing protection to deck structures from harsh weather conditions and lasting longer than ordinary deck paints or stains. This is a distinction without a meaningful difference where Plaintiffs also allege Rust-Oleum advertised Restore and indeed, allegedly misrepresented it, as a product that both resurfaces and protects deck structures. (See, e.g., R.16, ¶¶ 61, 67 (alleging advertisements for “lasting moisture protection”, “liquid armor resurfacer” with “superior weather resistance” and “ultimate water repellency”.)) Plaintiffs also allege that Rust-Oleum advertised its Restore product as “an easy to apply repair coating that revives the surface while offering maximum protection to preserve the deck for years to come”. (Id., ¶ 67.) These allegations intertwine the attributes of resurfacing and protection as both central to Restore’s ordinary purpose, not as distinct purposes. Indeed, in their briefing, Plaintiffs assert “that the labels on each [and] every can of Restore were substantially similar and contained the same affirmations of fact regarding Restore’s intended use, superiority, and durability.” (R.66, at 33.) Plaintiffs, therefore, reference the Restore labels as acknowledging the “intended use” of the Restore product and do not delineate that use as limited to resurfacing only.
Plaintiffs’ argument that some courts recognize a particular purpose and the ordinary purpose can be the same, implicating application of both types of implied warranties, is unpersuasive. The cases upon which Plaintiffs rely are not only contradictory to the official U.C.C. commentary that draws a distinction between the “particular purpose” and the “ordinary purpose” as well as the case law from the relevant states, but are also from states in which no named Plaintiff resides (Iowa, Arkansas, and South Carolina). Indeed, the case Plaintiffs cite from Massachusetts, acknowledges the relevant product’s distinct ordinary and particular purpose. See Regina Grape Prods. Co. v. Supreme Wine Co.,
Here, even taking the allegations in the light most favorable to Plaintiffs, they have
Accordingly, because Plaintiffs’ allegations fail to provide factual support for a particular purpose for Restore by any of the individual Plaintiffs or those in the putative class that differ from its ordinary purpose, the Court grants Rust-Oleum’s motion in this regard and dismisses Plaintiffs breach of implied warranty of fitness claims under U.C.C. § 2-315 in Counts IV and V or pursuant to the MMWA that borrows state law in Count II without prejudice.
Although the Court grants Rust-Oleum’s motion in regard to Plaintiffs’ failure to allege particular purpose in support of its breach of the implied warranty of fitness claims, Plaintiffs’ Counts IV and V still assert a breach of implied warranty of merchantability claim under U.C.C. § 2-314. To the extent that the requirement of privity exists in regard to those and other breach of warranty claims, the Court finds that resolution of factual issues surrounding privity between the consumers and Rust-Oleum preclude a determination of this issue at this early stage in the litigation.
Rust-Oleum asserts that the Complaint fails to adequately plead privity of contract between Plaintiffs and Rust-Óleum, as required by law in certain states for claims of implied warranty under the U.C.C. and MMWA and express warranty. Plaintiffs respond that they have adequately alleged applicable exceptions to the privity requirements, including that Rust-Oleum had direct dealings with Plaintiffs and putative class members through its agents, dealers, and/or representatives. Plaintiffs further assert that they are the known end-users — the third-party beneficiaries— to which Rust-Oleum directly marketed its advertising and labels specifying how its product would provide protection to their investment. Lastly, Plaintiffs argue that they should be allowed to prove their allegations — through discovery — that they were in privity with Rust-Oleum based upon its dealings with its agents and representatives or as third-party beneficiaries.
In many states — including Alabama, California, Florida, Georgia, Idaho, Illinois, Indiana, New York, North Carolina, Ohio, Tennessee, and Washington — a plaintiff seeking to recover economic loss cannot maintain a claim for breach of implied warranty under the U.C.C. unless he or she .is in privity of contract with the defendant. See, e.g., Wellcraft Marine, Inc. v. Zarzour,
.“A buyer and seller stand in privity if they are in adjoining links of the distribution chain. Thus, an end customer ... who buys from a retailer is not in privity with a manufacturer.” Clemens,
In other words, a summary dismissal of Plaintiffs’ claims at this stage would be improper. See, e.g., Kaplan v. Shure Bros.,
E. Express Warranty Claims
Rust-Oleum challenges the express warranty claims (in Counts II and III) for 23 Plaintiffs as insufficient for failure to plead the requisite reliance. To create an express warranty under U.C.C. § 2-313, an “affirmation of fact or promise” or a “description of the goods” by the seller must be part of the “basis of the
Rust-Oleum argues that Plaintiffs have failed to plead that they relied upon Restore’s express warranty and only make eonclusory allegations that Rust-Oleum’s alleged “representations and promises became part of the basis of the bargain between the parties” (R.16, ¶ 287) and “re-calif], generally, seeing and relying on advertisements regarding Restore’s high quality and longevity” (id., ¶ 120). Plaintiffs respond that because Rust-Oleum’s “Limited Lifetime Warranty” is included when purchasing Restore reliance is, therefore, presumed and not required to be plead. Plaintiffs further assert that even if it is required, they have provided a sufficient factual basis to satisfy the pleading standard. The Court agrees with Plaintiffs.
As discussed above regarding Rust-Ole-um’s arguments surrounding privity, Plain
Furthermore, although they provide a detailed list of the assertions made in Restore’s advertising, Plaintiffs are not required to allege that they relied on each claim included on Restore’s advertising. Per Comment 3 to Section 2-313 of the U.C.C.:
The present section deals with affirmations of fact by the seller, descriptions of the goods or exhibitions of samples, exactly as any other part of a negotiation which ends in a contract is dealt with. No specific intention to make a warranty is necessary if any of these factors is made part of the basis of the bargain. In actual practice affirmations of fact made by the seller about the goods during a bargain are regarded as part of the description of those goods; hence no particular reliance on such statements need be shown in order to weave them into the fabric of the agreement. Rather, any fact which is to take such affirmations, once made, out of the agreement requires clear affirmative proof. The issue normally is one of fact.
U.C.C. § 2-313, cmt. 3 (emphasis added); see also Weinstat v. Dentsply,
Even if Plaintiffs were required to do so, however, they have sufficiently pled reliance here. Plaintiffs allege that every can of Restore was substantially similar and contained the same affirmations of fact regarding Restore’s intended use, superiority, and durability. (R.16, ¶¶ 60, 286.) Plaintiffs further allege that these affirmations were consistent with Rust-Oleum’s advertising campaign. (See, e.g., id., ¶¶ 65-67, 286.) Each Plaintiff alleges that “consumers relied upon Defendant[’]s misrepresentations and omissions regard
Accordingly, the Court denies Rust-Ole-um’s motion to dismiss Plaintiffs’ claims for breach of express warranty in Counts II and III.
F. Section 2310(b) of the MMWA
Rust-Oleum argues that Plaintiffs cannot assert a claim based on unfair or deceptive practices under the MMWA, 15 U.S.C. § 2310(b), because there is no private right of action for enforcement of that subsection. Plaintiffs respond that they are not precluded from asserting a violation of Section 2310(b) of the MMWA because the private right of action conferred through subsection 2310(d)(1) provides for private enforcement of the substantive provisions of the Act. A brief background of the MMWA is instructive here.
“Congress enacted the MMWA in response to a swell of consumer complaints regarding the inadequacy of warranties to protect consumers’ interests.” Seney v. Rent-A-Ctr., Inc.,
(d) Civil action by consumer for damages, etc; jurisdiction; recovery of costs and expenses; cognizable claims
(1) Subject to subsections (a)(3) and (e), a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied - warranty, or service contract, may bring suit for damages and other legal and equitable relief—
(A) in any court of competent jurisdiction in any State or the District of Columbia; or
(B) in an appropriate district court of the United States, subject to paragraph (3) of this subsection.
Section 2310(b) — the Section Plaintiffs seek to pursue in addition to Section 2310(d) — defines “Prohibited acts” under the MMWA, stating:
It shall be a violation of section 45(a)(1) of this title [unfair competition]24 for any person to fail to comply with any requirements imposed on such person by this chapter (or a rule thereunder) or to violate any prohibition contained in this chapter (or a rule thereunder).
15 U.S.C. § 2310(b). Section 45(a)(1) of Title 15 provides that “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.” 15 U.S.C. § 45(a)(1). Section 45 provides the Federal Trade Commission with power to prevent unfair competition. See id.
Rust-Oleum argues that Plaintiffs have no private right of action under Section 2310(b). “The cardinal rule of statutory interpretation is that courts ‘must first look to the language of the statute and assume that its plain meaning accurately expresses the legislative purpose.’ ” United States v. Miscellaneous Firearms, Explosives, Destructive Devices & Ammunition,
Rust-Oleum’s argument that Plaintiffs cannot state a claim under MMWA § 2310(b) consists of one page that makes
III. Plaintiffs’ Fraud-Based Claims (Counts YI-X)
Counts VI-X assert violations of various statutes: 48 consumer fraud statutes enacted in 42 states and the District of Columbia, four states’ false-advertising statutes, and California’s Consumers Legal Remedies Act, as well as common law claims for negligent misrepresentation and fraudulent concealment.
A. Counts YI-X Are Sufficiently Pled Under Rule 9(b) With Particularity
Rust-Oleum argues that the Court must dismiss Plaintiffs’ consumer protection claims under the laws of 48 states because Plaintiffs have failed to please these claims with particularity as required by Federal Rule of Civil Procedure 9(b). Plaintiffs do not contest that Rule 9(b) is applicable to the consumer protection claims in this case. (See R.66, at 38.)
Under Rule 9(b), Plaintiffs are required to plead the “who, what, when, where, and how of the fraud.” Camasta v. Jos. A. Bank Clothiers, Inc.,
Plaintiffs’ allegations meet the demands for the requirements of Rule 9(b) as interpreted by the Seventh Circuit. While the Rule does require Plaintiffs to plead fraud claims “with particularity”, the Rule also explicitly states that “knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9. Plaintiffs have done more than they are required to do to comply with Rule 9(b)’s particularity requirement at this stage. See, e.g., U.S. Commodity Future Trading Comm’n v. Kraft Foods Grp., Inc., No. 15 C 2881,
B. Plaintiffs Adequately State a Claim for State Statutory Violations
Rust-Oleum argues that even if Plaintiffs satisfy Rule 9(b), Counts VI-VIII nonetheless fail to state a claim under Rule 12(b)(6). Specifically, Rust-Oleum argues that the Court should dismiss Counts VI-VII because they assert claims under statutes where no Plaintiff lives
1. The Complaint Adequately Pleads Causation and Reliance
Rust-Oleum argues that many of the relevant states require Plaintiffs to allege proof of reliance, yet the Complaint fails to do so. As explained supra (Analysis, II. D.2, II.E.), Plaintiffs have sufficiently pled reliance to support claims for the direct marketing exception to privity and for their breach of express warranty claims. Even though Rule 9(b) applies here, Plaintiffs’ allegations have still met the heightened pleading standard. Plaintiffs have adequately alleged the specific information necessary to show that they relied on Restore’s alleged misrepresentations here. This is particularly true where, as here, Plaintiffs allege that many of Rust-Oleum’s misrepresentations are contained in statements contained on product labeling. See, e.g., Clancy v. Bromley Tea Co.,
Furthermore, Plaintiffs have sufficiently pled causation. Plaintiffs allege that “consumers end up spending more time and money to repair damages caused by the defective product.” (R.16, ¶ 74; see also id., ¶ 92 (“significant cost and damage caused by Defendant’s conduct”); id., ¶ 287 (“structural damages caused by the product”).)
Accordingly, Plaintiffs have sufficiently alleged reliance and causation to withstand Rust-Oleum’s motion to dismiss their fraud claims on this basis.
2. Claims Under Statutes that Require Knowledge Are Sufficiently Pled
Rust-Oleum argues that Plaintiffs inadequately plead Rust-Oleum’s knowledge of the defective nature of its Restore. The Court disagrees.
Under Rule 9(b), while “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.” Fed. R. Civ. P. 9(b); see also United States v. Sanford-Brown, Ltd.,
Plaintiffs’ allegations contain numerous facts supporting a finding that Rust-Oleum designed, marketed, and sold Restore with knowledge of its defects. Specifically, Plaintiffs allege that Rust-Oleum acquired knowledge of the defects afflicting Restore through: (1) pre-and post-sale audits routinely performed by its quality improvement teams (R.16, ¶ 82); (2) field testing performed prior to Rust-Oleum selling Restore {id., ¶ 83); (3) online complaints made in various internet forums, including on Rust-Oleum’s Facebook page {id., ¶ 84); (4) direct complaints to Rust-Oleum {id., ¶ 85; see also e.g., ¶¶ 118, 137, 141); and (5) complaints to Synta, the predecessor manufacturer for Restore that Rust-Oleum acquired in 2012. {Id., ¶ 86). Taking all these allegations in the light most favorable to Plaintiffs, they have adequately alleged that Rust-Oleum knew of the defects causing Restore’s suboptimal performance, and yet as the allegations assert, Rust-Oleum continued to sell the product.
Rust-Oleum’s argument that customer complaints “in and of themselves” fail to adequately support an inference that a manufacturer knew of a defect is mis
Accordingly, Plaintiffs have sufficiently pled allegations to support Rust-Oleum’s knowledge in the context of their statutory consumer fraud claims.
3. The Complaint Alleges Actionable Misrepresentations
Rust-Oleum asserts that Plaintiffs base their statutory-fraud claims on the same alleged misrepresentations underlying their negligent-misrepresentation claim— alleged misrepresentations that are either non-actionable puffery or mere promises of future performance.
To state a claim under the Illinois Consumer Fraud and Deceptive Practices Act, 815 ILCS 505/1 et seq., for example, Plaintiffs must show (1) a deceptive act or practice; (2) the defendant’s intent that the consumer plaintiff rely upon the deception; and (3) that the deception occurred in the course of conduct involving trade or commerce. See Connick,
a. The Alleged Misrepresentations Are Not Mere Puffery
First, Rust-Oleum argues that the Complaint points to representations that amount to nothing more than sales “puf-fery”, asserting that Restore:
• is “easy to apply”, “low maintenance”, and a “long-lasting alternative to the endless cycle of repairing and repainting” (see R.16, ¶ 341(c), (k));
• provides “tough”, “resilient”, and “durable” coating that forms a “protective barrier from Mother Nature’s harsh elements” (id, ¶ 341(d), (f), (i)); and
• offers “superior weather resistance,” “ultimate water repellency,” and “lasting moisture protection” (id, ¶ 341(j), G)).
Plaintiffs respond that they have sufficiently pled actionable misrepresentations because the experiences Plaintiffs encountered prove that Rust-Oleum’s statements are objectively false. At the outset, the Court notes that Rust-Oleum’s argument is a defense and Plaintiffs are not required to anticipate or plead around defenses in them Complaint. See United States v. Coffman,
Even if Plaintiffs were required to plead around it, however, they have sufficiently done so here. “Puffing denotes the exaggerations reasonably expected of a seller as to the degree of quality of his or her product, the truth or falsity of which cannot be precisely determined.” Muir,
Rust-Oleum’s statements that Restore is “easy to apply”, “low maintenance”, and a “long-lasting alternative to the endless cycle of repairing and repainting” are not mere puffery when read together as they indicate that Restore, when compared to other products on the market, is easier to apply, does not have to be applied as often, and lasts longer. Indeed, these phrases, taken in the context of the- additional information provided to the consumer are measurable as Plaintiffs allege that Rust-Oleum scientifically tested Restore in “torture tests”, “field tests”, and pre-sale “testing” to demonstrate its long-lasting and durable properties in the midst of “high winds, salt air, torrential rains, exposure to the hot sun and high foot-traffic”. (See R.16, ¶ 68.) These statements indicate properties “capable of precise measuring” as demonstrated by the existence of scientific studies conducted by Rust-Oleum. See Muir,
b. The Alleged Misrepresentations Are Not Mere Promises of Future Performance
Second, Rust-Oleum argues that the alleged misrepresentations are mere promises of future performance. Specifically, Rust-Oleum asserts that the Complaint cites opinions predicting how long Restore works — e.g., “lasts 10 to 12 years” and “lasts 3X longer than deck stain”. (See R.16, ¶ 341(a)-(b), (e), (g).) Rust-Oleum argues that “a negligent misrepresentation claim will fail if ... the representation is more a prediction of the product’s future performance than a representation of an existing fact.” (R.32, at 57.) Plaintiffs respond that the statements, such as these, are actionable predictions that are taken into consideration by a reasonable consumer prior to purchase. The Court agrees.
Plaintiffs allege that Rust-Oleum knew that its product was defective or at the least did not perform as advertised for many consumers, yet it continued to promote its product with slogans of longevity and durability to continue selling a do-it yourself product that makes up a major portion of Rust-Oleum’s sales. These allegations are sufficient to plead that the statements predicting the longevity of Restore alone and in comparison to other deck stains are actionable predictions. See, e.g., Unified School Dist. v. Celotex Corp.,
4. State-Specific Grounds
a. Massachusetts
Rust-Oleum next argues that pre-suit notice is required under the Massa
The Massachusetts Consumer Protection Act requires a plaintiff to provide the defendant with pre-suit notice of a claim. Mass. Gen. Laws ch. 93A, § 9(3). The notice requirement is “a prerequisite to suit” that “must be alleged in the plaintiffs complaint”. Rodi v. New England Sch. of Law,
Plaintiffs’ allegation that Rust-Oleum is an Illinois corporation and silence as to a place of business or assets in Massachusetts does not suffice, however, as they “must allege facts” supporting the exception’s application. See Sumner v. Mortg. Elect. Registration Sys., No. 11-11910-DJC,
The Complaint fails to allege any facts from which the Court can reasonably infer that the Defendant does not maintain a place of business or keep assets in Massachusetts. See Cox v. Chrysler Grp., LLC, No. CV 14-7573(MAS)(DEA),
b. New Jersey
In addition, Rust-Oleum argues that the New Jersey Consumer Fraud Act requires a plaintiff to “quantify” “at the pleadings stage” the alleged “ascertainable loss.” In re AZEK Bldg. Prods. Inc. Mktg. & Sales Practices Litig.,
The Complaint contains allegations that Plaintiffs Riello and Dorgan would not have purchased Restore had they known about the defect and that they suffered out of pocket loss as a result. (See R.16, ¶¶ 199, 202.) These allegations are insufficient under New Jersey law. Accordingly, the Court grants Rust-Oleum’s motion to dismiss Plaintiff Riello’s and Plaintiff Dorgan’s claims under the New Jersey Consumer Fraud Act without prejudice, and grants Plaintiffs leave to replead.
C. Plaintiffs Fail To Sufficiently Plead Claims for Negligent Misrepresentation on the Basis of an Alleged Omission
Rust-Oleum argues that the Court should dismiss Plaintiffs’ negligent misrepresentation claim for failure to adequately plead causation, reliance, or any actionable misrepresentations. For the same reasons as addressed supra (Analysis, III.B.3.), Plaintiffs’ allegations adequately plead causation and reliance as well as affirmative actionable misrepresentations that do not warrant dismissal at this stage. Rust-Ole-um, however, further alleges that Plaintiffs’ allegations of omissions fail to support a claim of negligent misrepresentation and that both state-specific grounds exist for dismissal as well as arguments under the Economic-Loss Rule. The Court addresses each argument in turn.
First, Rust-Oleum argues that Plaintiffs’ negligent misrepresentation claim relies, in part, on alleged omissions and that some jurisdictions have rejected omissions as a basis for a claim. See, e.g., Eberts v. Goderstad,
D. Plaintiffs’ Claims for Negligent Misrepresentation on State-Specific Grounds
Rust-Oleum’s arguments seeking dismissal of Plaintiffs’ negligent misrepresentation claims are not, however, limited to omissions. The Court, therefore, turns to Rust-Oleum’s additional arguments regarding Plaintiffs’ negligent misrepresentation claims and the alleged affirmative misrepresentations. Specifically, Rust-Ole-um contends that the Court should dismiss Plaintiffs’ negligent • misrepresentation claims in various states because (1) they were not made for business purposes (Colorado, Massachusetts, Minnesota, Missouri, Nebraska, Ohio, Tennessee, and Washington), (2) they are not limited to the required factual context of dealings with an accountant and employment relationships (Idaho and Indiana), (3) the alleged misrepresentations were not made intentionally or recklessly (Minnesota), (4) the relationship between the parties lacks the required privity or proxy (Massachusetts and New York), and (5) the statute of limitations has run (Alabama).
First, Rust-Oleum contends that in order for Plaintiffs to prove their negligent misrepresentation claim in certain states, they must show that Rust-Oleum made the misrepresentation “for business purposes.” (R.32, at 59.) Rust-Oleum argues that the Court should dismiss Plaintiffs’ negligent representation claims in those states because “the complaint concedes that plaintiffs did not rely on Rust-Ole-um’s purported misrepresentations for business or commercial purposes, alleging instead that plaintiffs ‘used Restore primarily for personal, family and/or household purposes’ ”. (Id. at 59.) In support of its argument, Rust-Oleum relies on a Colorado Supreme Court case, Allen v. Steele,
Other states that define negligent misrepresentation according to section 552 have limited the cause of action strictly to cases involving business transactions, which they define synonymously with “commercial transactions.” See, e.g., G.A.W., III v. D.M.W,596 N.W.2d 284 , 290 (Minn.Ct.App.1999) (stating that negligent misrepresentation has been “recognized [only] in the context of a business or commercial transaction” and did not apply to husband’s suit alleging former wife misrepresented paternity); Robinson v. Omer,952 S.W.2d 423 , 427-28 (Tenn.1997) (holding that negligent misrepresentation did not apply where attorney gave advice for personal, not business, matters). Contra Sain v. Cedar Rapids Cmty. Sch. Dist,626 N.W.2d 115 , 126 (Iowa 2001) (holding that negligent misrepresentation is not restricted to business matters, but “situations where the information supplied harmed the plaintiff in its relations with third parties”).
Plaintiffs’ well-pleaded Complaint alleges that Plaintiffs engaged in a business or commercial transaction via their purchase of Restore from retailers. (See, e.g., R.16, ¶¶ 74, 80, 81, 94, 98.) Indeed, the Complaint’s class action allegations include a proposed nationwide declaratory and in-junctive relief class defined as “[a]ll individuals and entities that have purchased, not for resale, Restore and/or Restore 10X in the territories of the United States.” (Id., ¶ 101.) As such, Rust-Oleum’s motion to dismiss Plaintiffs’ negligent misrepresentation claims for Plaintiffs in Colorado, Massachusetts, Minnesota, Missouri, Nebraska, Ohio, Tennessee, and Washington on the basis that they failed to prove a business transaction is denied.
Second, Rust-Oleum argues that other states have limited negligent misrepresentation claims to particular factual contexts. Rust-Oleum asserts that Idaho and Indiana limit negligent representation claims to professional relationships dealing with an accountant (Idaho) and employment relationships (Indiana). Regarding Rust-Oleum’s Idaho arguments, Plaintiffs do not respond. Rust-Oleum’s motion to dismiss negligent misrepresentation claims for Idaho Plaintiffs Dockstader and Gomez is, therefore, granted. Pertaining to Indiana, Rust-Oleum relies on one point in Indiana case law that the state generally “has not recognized” negligent misrepresentation claims “outside the limited context of an employment relationship.” (R.32, at 60 (citing Thomas v. Lewis Eng’g, Inc.,
Third, Rust-Oleum contends that the Court should dismiss the negligent misrepresentation claim for Minnesota Plaintiff Mies because Minnesota statutory law requires a defendant to make a misrepresentation intentionally or recklessly in order to prevail on a common law misrepresentation claim. Plaintiffs have alleged factual support for a finding of intentional and/or reckless misrepresentation, however, based on allegations that Rust-Oleum possessed knowledge of Restore’s propensity to prematurely fail. (R.16, ¶ 343; see also id., ¶¶ 76, 82, 97.) Accordingly, Rust-Oleum’s motion to dismiss
Fourth, Rust-Oleum asserts that other states require privity or proxy in order to maintain a negligent misrepresentation claim. As discussed supra (Analysis, II. D.2.), however, Plaintiffs have sufficiently pled factual support for privity between Rust-Oleum and consumers. As such, Rust-Oleum’s motion to dismiss Massachusetts Plaintiff Boscardin and New York Plaintiffs Larson and Fernandez’s negligent misrepresentation claims is denied.
Lastly, Rust-Oleum contends that the Court should dismiss Plaintiff Hickman’s negligent misrepresentation claim for failure to meet Alabama’s “two-year statute of limitations, which begins running when the plaintiff discovers, or should have discovered, the fact constituting the fraud.” Bryant Bank v. Talmage Kirkland & Co.,
E. The Economic Loss Rule Does Not Mandate Dismissal of Certain Plaintiffs’ Claims At This Stage
Rust-Oleum next contends that the Court should dismiss Plaintiffs’ negligent misrepresentation claims under the laws of Illinois, Maine, Maryland, Michigan, Missouri, New Hampshire, New Jersey, and New York, based on the economic-loss rule because Plaintiffs solely seek economic losses purportedly caused by Restore. Plaintiffs respond that the economic loss rule and/or warranty provisions do not prevent them from pursuing claims of damage to other property, namely, the decks upon which Plaintiffs applied Restore.
The economic loss rule generally prohibits recovery in tort for solely economic loss. See, e.g., Moorman Mfg. Co. v. Nat’l Tank Co.,
The Oceanside at Pine Point decision provides guidance in determining whether damage has occurred to “other property”, wherein the Maine Judicial Supreme Court ultimately adopted an approach aligned with other jurisdictions that looks to “the product purchased by the plaintiff, as opposed to the product sold by the defendant, to determine whether a product has injured only itself.”
Here, Plaintiffs allege they purchased individual cans of Restore which they applied to their existing decking property — property that was not a part of Plaintiffs’ Restore purchase. Specifically, Plaintiffs’ well-pled Complaint alleges that the Restore product, itself, degrades and needs to be replaced, and that the product causes damage to Plaintiffs’ property. {See, e.g., R.16, ¶ 4 (“even after proper application, damage will result to class members’ decks”); id., ¶ 91 (“consumers continue to spec thousands of dollars on purchasing and applying Restore, and they then spend even more money removing and replacing Restore when it peels, cracks and causes damage to existing property”); id., ¶ 116 (“Defendant’s product at issue in this action fails to perform as warranted and in fact ultimately causes damage and injury to any decking material upon which Restore is applied”).) Taking the facts alleged and all reasonable inferences in Plaintiffs’ favor, the Complaint sufficiently states a claim for negligent misrepresentation that is not barred by the economic loss rule in the various states because application of Restore results in damage to “other property” and any integration of the Restore product with the deck, under these theo-
Furthermore, Plaintiffs’ negligent misrepresentation claim is not barred because of the foreseeability of damage. Rust-Ole-um argues that because its warranty excludes payment for “replacement of any wood structure” or “consequential, incidental damages,” it is foreseeable that Restore could damage a deck and that such foreseeability bars Plaintiffs’ claim. (R.32, at' 64-65 (citing Michigan and Wisconsin
Accordingly, the Court denies Rust-Ole-um’s motion to dismiss Plaintiffs’ negligent misrepresentation claims for Plaintiffs in Illinois, Maine, Maryland, Michigan, Missouri, New Hampshire, New Jersey, and New York.
F. Plaintiffs’ Fraudulent Concealment Claims
Count X asserts fraudulent concealment based on allegations that Rust-Oleum should have disclosed that Restore “prematurely fails.” (See, e.g., R.16, ¶¶ 347, 348.) Rust-Oleum asserts that this claim fails based on failure to plead causation and reliance, knowledge, and a duty to
A fraudulent concealment claim requires proof that Rust-Oleum had a duty to disclose the allegedly concealed facts. See, e.g., Connick,
Plaintiffs argue, that some courts in the relevant states have found that a defendant is under a duty to disclose when it is in exclusive possession of knowledge concerning a product or it conceals facts that contradict or qualify representations. The cases upon which Plaintiffs rely for imposition of a duty on a defendant for omissions, however, represent only six of the 29 states at issue in these claims and refer to California while Rust-Oleum does not seek dismissal of the California Plaintiff. In addition, some of the cases upon which Plaintiffs rely are factually distinguishable.
Accordingly, Plaintiffs have demonstrated that Plaintiffs Hickman (Alabama), Shanks (Florida), Webber (Maryland), Boscardin (Massachusetts), and Allen and McCain (Washington) withstand Rust-Ole-um’s motion to dismiss for failure to sufficiently plead Rust-Oleum’s duty to disclose with regard to its fraudulent concealment claim. The Court grants Rust-Oleum’s motion and dismisses the fraudulent concealment claims, however, for the remaining non-California Plaintiffs without prejudice.
IV. The Complaint States a Claim for Conduct Before September 2012
Rust-Oleum asserts that a “fatal defect” of timing extends across all of Plaintiffs’ claims because they rely on Restore sales and other conduct that occurred before Rust-Oleum began to manufacture Restore. Plaintiffs respond that the relationship between Rust-Oleum and Syn-ta leaves open the factual question as to whether liability would have transferred to Rust-Oleum after it acquired Synta. The Court agrees.
The parties do not dispute that under Illinois law, the general rule is that “a corporation which merges with another corporation takes on the latter corporation’s obligations and liabilities while a successor corporation which purchases the business assets of another corporation does not become liable for the debts of the seller in the absence of an express agreement to assume the seller’s debt.” Gen Elec. Capital Corp. v. Lease Resolution Corp.,
In addition, even if the acquisition was not a merger, “several exceptions to the general rule” governing a purchaser corporation’s assumption of liabilities from a seller exist. See Myers v. Putzmeister, Inc.,
Y. Plaintiffs’ Claims Allege Sufficient Allegations to Thwart Preemption Under New Jersey and Ohio Law. to the Extent They Seek Relief for Damage to Other Property
As an independent basis to the myriad of state-specific arguments Rust-Oleum argues, it further contends that the Court should dismiss many of Plaintiffs’ claims under New Jersey and Ohio law to the extent they seek relief for damage to property other than the purchased Restore, because product liability statutes in both states preclude such recovery.
The New Jersey Products Liability Act [“NJPLA”] defines a “product liability action” and provides that “claims for ‘harm caused by a product’ are governed by the [NJPLA] ‘irrespective of the theory underlying the claim.” Sinclair v. Merck & Co.,
Rust-Oleum argues that to the extent Plaintiffs’ decks constitute “other” property under the NJPLA, Plaintiffs’ claims for breach of implied warranty and violation of the New Jersey Consumer Fraud Act fail.
New Jersey courts have consistently ruled that the NJPLA does not preclude common law or CFA claims in all cases. See, e.g., Wendling v. Pfizer, Inc., No. A-1807-06T1,
The Ohio Products Liability Act [“OPLA”] is a closer call. The OPLA “eliminate^ ‘all common law product liability claims.’ ” Wimbush v. Wyeth,
According to Rust-Oleum, Plaintiffs’ allegations related to their decks constitute “property other than the product in question” for purposes of the OPLA and the Court should, therefore, dismiss Plaintiffs’ claims for violation of the Consumer Sales Act. Plaintiffs respond that Plaintiffs Blank and Dixson’s claims sounding in fraud survive this challenge because they are not rooted in product liability claims, but instead are based in fraud and Rust-Oleum’s general duty not to deceive and failure to disclose that the Restore products did not work as marketed and degrade after application. (R.16, ¶¶ 341, 347); see Glassner v. R.J. Reynolds Tobacco Co.,
CONCLUSION
For these reasons, the Court grants in part, grants in part without prejudice, and denies in part Rust-Oleum’s motion to dismiss.
Notes
. The Plaintiffs in this action consist of the following: Angelita Hickman (Alabama); Mi
. Prior to consolidation by the MDL Panel, the Executive Committee of the Northern District of Illinois consolidated and reassigned a second action, Shogren et al. v. Rust-Oleum Corp., 14 C 8058 (N.D. Ill.), to the Court as a related case to McCain, et al. v. Rust-Oleum Corp, Case No. 14 C 4852 (N.D. Ill.) {See Shogren, No. 14-8058, R.14, Executive Committee Order Finding of Relatedness Pursuant to Local Rule 40.4, Nov. 10, 2014.)
. To date, the individual actions consolidated with McCain, et al. v. Rust-Oleum Corp, Case No. 14-04852 (N.D.Ill.) or conditionally transferred to become part of the MDL are: Webber, et al. v. Rust-Oleum Corp., Case No. 1:14-02248 (D. Md.) (see R.1), Fernandez v. Rust-Oleum Corp., Case No. 7:14-08857 (S.D.N.Y.) (see R.1), Leonard, et al. v. Rust-Oleum Corp, Case No. 7:14-00259 (E.D.N.C.) (see R.1), Cady et al. v. Rust-Oleum Corp., Case No. 5:14-06156 (E.D. Pa) (see R.1), Sullivan et al. v. Rust-Oleum Corp., Case No 15cv1497 (S.D. Ill.) (see R.2); Baden, et al. v. Rust-Oleum Corp., No 15-2892 (N.D. Ill.) (see R.11; R.15). Although not a named plaintiff in the Plaintiffs’ Complaint, the MDL Panel transferred the case of Howell v. Rust-Oleum Corp., No. 15-08379 (D.N.J.) to the MDL. (See R.76).
. Plaintiffs' Complaint as originally filed listed 47 plaintiffs residing in 29 different states. (See R.16, ¶¶ 10-51.) Eight plaintiff couples (the Sullivans, the Leonards, the McLambs, and the Cadys, id., ¶¶ 20, 35, 36, 39) share a single set of claims and are treated as single plaintiffs for the purposes of Rust-Oleum’s motion to dismiss. In addition, Plaintiffs voluntarily dismissed three of the named plaintiffs (Timothy Mueller, Thomas Schoenberger, and Rose Therrien) and as a result, no remaining plaintiff resides in Montana or Wisconsin. (See R.23-25; R.29.)
. The Court provides this summary taking the facts in the light most favorable to Plaintiffs, with additional facts related to the parties' various arguments discussed in the relevant sections.
. For these same reasons, this case is distinguishable from Frazier v. U.S. Bank Nat’l Ass’n, No. 11 C 8775,
. For the same reasons, the Court denies Rust-Oleum’s motion to dismiss Plaintiffs' allegations in Counts III-VII citing violations of the laws of 24 states in which no Plaintiff resides or is alleged to have purchased Restore. (See R.32, at 70-73) This argument is more appropriately addressed in Plaintiffs’ class certification motion when the putative class of plaintiffs and their locations are identified. Indeed, as this motion was pending, an additional group of plaintiffs associated with a New Jersey case have been transferred into this MDL, only serving to further highlight the premature nature of Rust-Oleum’s argument. As such, the Court denies without prejudice as premature, Rust-Oleum’s motion to dismiss based on this argument.
. The Court considers both the Limited Lifetime Warranties attached to Plaintiffs' Complaint as they are referred to in the Complaint and are central to Plaintiffs' claims. (See R.16, ¶¶ 63, 95, 96, 280; R.16, attached to Compl. as Exs. 1, 2); Rosenblum.,
. See Ala. Code § 7-2-719(1); Cal. Com. Code § 2719(1); Colo. Rev. Stat. § 4-2-719(1); Del. Code tit. 6, § 2-719(1); Fla. Stat. § 672.719(1); Ga. Code § 11-2-719(1); Idaho Code § 28-2-719(1); 810 ILCS 5/2-719(1); Ind. Code § 26-1-2-719(1); Me. Rev. Stat. tit. 11, § 2-719(1); Md. Code, Com. Law § 2-719(1); Mass. Gen. Laws ch. 106, § 2-719(1); Mich. Comp. Laws § 440.2719(1); Minn. Stat. § 336.2-719(1); Mo. Rev. Stat. § 400.2-719(1); Neb. Rev. Stat. U.C.C. § 2-719(1); N.H. Rev. Stat. § 382-A:2-719(l); N.J. Stat. § 12A:2-719(1); N.Y. U.C.C. Law § 2-719(1); N.C. Gen. Stat. § 25-2-719(1); Ohio Rev. Code § 1302.93(A); 13 Pa. Cons. Stat. § 2719(a); R.I. Gen. Laws § 6A-2-719(l); Tenn. Code § 47-2-719(1); Tex. Bus. & Com. Code § 2.719(1); Va. Code § 8.2-719(1); Wash. Rev. Code § 62A.2-719(1).
. Many of the cases upon which Rust-Oleum relies address the issues surrounding an exclusive-remedy provision’s failure of its essential purpose on motions for summary judgment or after a trial. See, e.g., Hornberger v. Gen. Motors Corp., 929 F.Supp. 884, 890 (E.D.Pa.1996) (summary judgment); Cessna Aircraft Co. v. Avior Techs., Inc.,
. The cases upon which Rust-Oleum relies for the proposition that factual questions do not prevent dismissal of breach of warranty claims on a motion to dismiss are distinguishable. See (R.77, at 5, n. 7); Adelman v. Rheem Mfg. Co., No. 2:15-cv-00190 JWS,
. As with Rust-Oleum’s arguments for failure of essential purpose, many of the cases cited in support of its position that consequential damages are precluded occurred after the development of the factual record on motions for summary judgment or after a trial.' See, e.g., Kennedy Elec. Co. v. Moore-Handley, Inc.,
. Because the Court determined that factual issues preclude resolution of whether the consequential-damages exclusion provision bars Plaintiffs from recovery of damages based on breach of express warranty, the Court does not address the parties' arguments regarding adequacy of the offered remedy. (See, e.g., R.77, at 9-11.)
. Plaintiffs’ Complaint alleges only statutory violations of the MMWA (see R.16, ¶ 280) and makes no reference to the implementing regulations of the MMWA.
. See also Ala. Code § 7-2-316(2); Cal. Com. Code § 2316(2); Colo. Rev. Stat. § 4-2-316(2); Del. Code tit. 6, § 2-316(2); Fla. Stat. § 672.316(2); Ga. Code § 11-2-316(2); Idaho Code § 28-2-316(2); 810 ILCS 5/2-316(2); Ind. Code § 26-1-2-316(2); Me. Rev. Stat. tit. 11, § 2-316(2); Md. Code, Com. Law § 2-316(2); Mass. Gen. Laws ch. 106, § 2-316(2); Mich. Comp. Laws § 440.2316(2); Minn. Stat. § 336.2-316(2); Mo. Rev. Stat. § 400.2-316(2); Neb. Rev. Stat. U.C.C. § 2-316(2); N.H. Rev. Stat. § 382-A:2-316(2); N.J. Stat. § 12A:2-316(2); N.Y. U.C.C. Law § 2-316(2); N.C. Gen. Stat. § 25-2-316(2); Ohio Rev. Code § 1310.21(B); 13 Pa. Cons. Stat. § 2316(b); R.I. Gen. Laws § 6A-2-316(2); Tenn. Code § 47-2-316(2); Tex. Bus. & Com. Code § 2.316(2); Va. Code § 8.2-316(2); Wash. Rev. Code § 62A.2-316(2).
. Ala. Code § 7-l-201(b)(10); Cal. Com. Code § 1201 (b)(l 0); Colo. Rev. Stat. § 4-1-201(b)(10); Del. Code tit. 6, § l-201(b)(10); Fla. Stat. § 671.201 (b)(l 0); Ga. Code § 11-1-201(b)(10); Idaho Code § 28-201(b)(10); 810 ILCS 5/l-201(b)(10); Ind. Code § 26-1-1-201 (b)(10); Me. Rev. Stat. tit. 11, § 1-1201(b)(10); Md. Code, Com. Law § 22-102(a)(14); Mass. Gen. Laws ch. 106, § 1-201(b)(10); Mich. Comp. Laws § 440.1201(b)(10); Minn. Stat. § 336.1-201(b)(10); Mo. Rev. Stat. § 400.'l-201(b)(10); Neb. Rev. Stat. U.C.C. § l-201(b)(10); N.H. Rev. Stat. § 382-A:l-201(b)(10); N.J. Stat. § 12A:l-201(b)(10); N.Y. U.C.C. Law § 1-201(b)(10); N.C. Gen. Stat. § 25-1-20l(b)(10); Ohio Rev. Code § 1310.21(B)(10); 13 Pa. Cons. Stat. § 1201(b)(10); R.I. Gen. Laws § 6A-l-201(b)(10); Tenn. Code § 47-1-201(b)(10); Tex. Bus. & Com. Code § 1.201(b)(10); Va. Code § 59.1-501.2(a)(14); Wash. Rev. Code § 62A.l-201(b)(10).
. This is true, not only to the extent that Plaintiffs invoke this argument for alleged failure of the exclusive-remedy provision and the consequential-damages exclusion to be conspicuous, but also to the extent that Plaintiffs attempt to argue that the "Limited Lifetime Warranty" is inconspicuous with regard to its breach of implied warranty claims (Counts IV & V).
. Ala. Code § 7-2-607(3)(a); Colo. Rev. Stat. § 4-2-607(3)(a); Ga. Code § ll-2-607(3)(a); Idaho Code § 28-2-607(3)(a); 810 ILCS 5/2-607(3)(a); Me. Rev. Stat. tit. 11, § 2-607(3)(a);' Minn. Stat. § 336.2-607(3)(a); N.J. Stat. § 12A:2-607(3)(a); N.Y. U.C.C. Law § 2-607(3)(a); N.C. Gen. Stat. § 25-2-607(3)(a); R.I. Gen. Laws § 6A-2-607(3)(a); Tenn. Code § 47-2-607(3)(a); Tex. Bus. & Com. Code § 2.607(c)(1); Va. Code § 8.2-607(3)(a); Wash. Rev. Code § 62A.2-607(3)(a).
. See In re Caterpillar,
. Ala. Code § 7-2-315; Cal. Com. Code § 2315; Colo. Rev. Stat. § 4-2-315; Del. Code tit. 6, § 2-315; Fla. Stat. § 672.315; Ga. Code § 11-2-315; Idaho Code § 28-2-315; 810 ILCS 5/2-315; Ind. Code § 26-1-2-315; Me. Rev. Stat. tit. 11, § 2-315; Md. Code, Com. Law § 2-315; Mass. Gen. Laws § 2-315; Mich. Comp. Laws § 440.2315; Minn. Stat. § 336.2-315; Mo. Rev. Stat. § 400.2-315; Neb. Rev. St. § 2-315; N.H. Rev. Stat. § 382-A:2-315; N.J. Stat. § 12A:2-315; N.Y. U.C.C. Law § 2-315; N.C. Gen. Stat. § 25-2-315; Ohio Rev. Code § 1302.28; 13 Pa. Cons. Stat. § 2315; R.I. Gen. Laws § 6A-2-315; Tenn. Code § 47-2-315; Tex. Bus. & Com. Code § 2.315; Va. Code § 8.2-315; Wash. Rev. Code § 62A.2-315.
. Ala. Code § 7-2-315 cmt. 2; Cal. Com. Code § 2315 cmt. 2; Colo. Rev. Stat. § 4-2-315 cmt. 2; Del. Code tit. 6, § 2-315 cmt. 2; Fla. Stat. § 672.315 cmt. 2; Ga. Code § 11-2-315 cmt. 2; Idaho Code § 28-2-315 cmt. 2; 810 ILCS 5/2-315 cmt. 2; Ind. Code § 26-1-2-315 cmt. 2; Me. Rev. Stat. tit. 11, § 2-315 cmt. 2; Md. Code, Com. Law § 2-315 cmt. 2; Mass. Gen. Laws § 2-315 cmt. 2; Mich. Comp. Laws § 440.2315 cmt. 2; Minn. Stat. § 336.2-315 cmt. 2; Mo. Rev. Stat. § 400.2-315 cmt. 2; Neb. Rev. St. § 2-315 cmt. 2; N.H. Rev. Stat. § 382-A:2-315 cmt. 2; NJ. Stat. § 12A:2-315 cmt. 2; N.Y. U.C.C. Law § 2-315 cmt. 2; N.C. Gen. Stat. § 25-2-315 cmt. 2; Ohio Rev. Code § 1302.28 cmt. 2; 13 Pa. Cons. Stat. § 2315 cmt. 2; R.I. Gen. Laws § 6A-2-315 cmt. 2; Tenn. Code § 47-2-315 cmt. 2; Tex. Bus. & Com. Code § 2.315 cmt. 2; Va. Code § 8.2-315 cmt. 2; Wash. Rev. Code § 62A.2-315 cmt. 2.
. See Ala. Code § 7-2-313; Cal. Com. Code § 2313; Colo. Rev. Stat. § 4-2-313; Del. Code tit. 6, § 2-313; Fla. Stat. § 672.313; Ga. Code § 11-2-313; Idaho Code § 28-2-313; 810 ILCS 5/2-313; Ind. Code § 26-1-2-313; Me. Rev. Stat. tit. 11, § 2-313; Md. Code, Com. Law § 2-313; Mass. Gen. Laws ch. 106, § 2-313; Mich. Comp. Laws § 440.2313; Minn. Stat. § 336.2-313; Mo. Rev. Stat. § 400.2-313; Neb. Rev. Stat. § 2-313; N.H. Rev. Stat. § 382-A:2-313; NJ. Stat. § 12A:2-313; N.Y. U.C.C. Law § 2-313; N.C. Gen. Stat. § 25-2-313; Ohio Rev. Code § 1302.26; 13 Pa. Cons. Stat. § 2313; R.I. Gen. Laws § 6A-2-313; Tenn. Code § 47-2-313; Tex. Bus. & Com. Code § 2.313; Va. Code § 8.2-313; Wash. Rev. Code § 62A.2-313.
. See, e.g., Sanders v. Apple, Inc.,
. 15 U.S.C. § 45(a)(1) is also Federal Trade Commission Act § 5(a).
. In addition, Plaintiffs allege the month or season for the years relevant to Plaintiffs' individual purchases and uses of Restore, awareness of the alleged product failure, and notification to Rust-Oleum. (See, e.g., R.16, ¶¶ 121, 124, 128, 131, 136, 137, 140, 141, 144, 147, 150, 153, 156, 157, 160, 164, 167, 171, 175, 179, 183, 184, 187, 190, 193, 195, 198, 201, 204, 208, 211, 212, 215, 218, 219, 222, 226, 227, 230, 231, 234, 235, 238, 241, 244, 247, 248, 251, 254, 257, 261, 264.)
. The Court addressed Rust-Oleum’s argument regarding Plaintiffs’ assertion of state statutory violations in states where no Plaintiffs live supra (Analysis, I, n. 6), finding it premature and denying it without prejudice.
. In addition, the Complaint alleges for each Plaintiff that Restore’s premature failure caused the damage at issue. {See, e.g., R.16, ¶¶ 119, 122, 126, 130, 134, 138, 142, 145, 148, 151, 154, 158, 162, 165, 169, 173, 177, 181, 185, 188, 192, 196, 199, 202, 206, 209, 213, 216, 220, 224, 228, 232, 236, 239, 242, 245, 249, 252, 255, 259, 262, 265, 268.)
. See Lopez v. Nissan N. Am.,
. See Monreal v. GMAC Mortgage, LLC,
. Section 552 provides in relevant part:
(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.
. As explained by the Illinois Supreme Court, "[t]his comports with the notion that the essence of a product liability tort case is not that the plaintiff failed to receive the quality of product he expected, but that the plaintiff has been exposed, through a hazardous product, to an unreasonable risk of an injury to his person or property. On the other hand, contract law, which protects expectation interests, provides the proper standard when a qualitative defect is involved, i.e., when a product is unfit for its intended use.” Moorman Mfg Co.,
. Indeed, the "economic loss rule articulated in Moorman does not apply when: (1) the plaintiff sustained damages (i.e., personal injury or property damage) as a result of a sudden or dangerous occurrence; (2) the defendant makes an intentional, false representation (i.e., fraud) that proximately causes the plaintiff's damages; or (3) the plaintiff’s damages are proximately caused by a negligent misrepresentation by a defendant in the busi
. See also Kelleher v. Marvin Lumber & Cedar Co.,
. The present litigation is distinguishable from Pulte Home Corp. v. Parex, Inc.,
. Although Rust-Oleum recites Wisconsin law, its motion to dismiss admits its inapplicability since Plaintiffs' voluntary dismissal of certain Plaintiffs (see R.23-25), resulted in “no remaining plaintiff [] alleged to reside in Montana or Wisconsin.” (R.32, at 1, n. 1.)
. Mason v. Chrysler Corp.,
. See In re Cisneros,
. Although Rust-Oleum also argues that the New Jersey Plaintiffs’ claims for negligent