Charlotte once told Wilbur that “[p]eo-ple are very gullible; They’ll believe anything they see in print.” According to Plaintiff Edward J. Reynolds, D.D.S. (“Plaintiff’), the same apparently goes for phone calls. Plaintiff brings the instant Complaint, on his own behalf and on behalf of a putative class, alleging that'he was the victim of Defendants’ deceptive business practices. (Am. CompL ¶ 1 (Dkt. No. 20).) Plaintiff contends that Defendants falsely represented to him, and to other members of the putative class, that a -“family mem
I. Background
A. Factual Background
For purposes of the instant Motions, the Court treats the allegations contained in the Complaint as true. Lifewatch, Inc. and Lifewatch Technologies Corp. (the “Lifewatch Defendants”) “are related corporate entities involved in various aspects of the medical alert device and services business” which “use agents and/or representatives to advertise, market[,j and sell their, .products and/or services in New York and elsewhere.” (Id. ¶¶ 7, 12.) Defendant Evan Sirlin (“Sirlin”) is the “President,” and Defendant Mitchell May (“May”) (collectively, the “Individual Defendants”) is “Vice President!,] of one or more of th,e Lifewatch [Defendants and controls the company or companies.” (Id, ¶¶ 13-14.) The Lifewatch Defendants contracted with .Worldwide Information Services, Inc., a Florida Corporation, and The Consumer Voice, LCC, a Florida LLC, and “authorized them to act as” the Life-watch Defendants’ and Individual Defendants’ “agents.” (Id. ¶¶ 30-31.) Defendants ABC Corporations (1-10) and John Does (110) (the “Unnamed Defendants”) are unnamed “additional actors and/or co-conspirators and/or agents of [the] named [Defendants.” (Id. ¶ 27.)
1. Defendants’ Alleged Scheme
Plaintiff alleges that “Defendants and/or their agents marketed and sold” their life medical alert devices to Plaintiffs and other class members by using “sales calls,” including robo-calls and other automating dialing systems. (Id. ¶ 37.) Defendants allegedly told prospective buyers “that a family member, friend, or other person had purchased the ... device and/or services for” them and that the device was therefore free save a monthly service fee. (Id.) Defendants also allegedly told “consumers that they will not be charged until the device is activated!,] but [Defendants charge consumers immediately, often before activation of the device.” (Id. ¶ 72.)
According to Plaintiff, the mechanism by which the Lifewatch Defendants marketed their products was via “purchase agreements” with “outside -sellers” who engage in telemarketing. (Id. ¶¶44, 47 (internal quotation marks omitted).) The Lifewatch Defendants did not “monitor” these sellers (though they did participate in “conference calls”), but, pursuant to a “Purchase Agreement,” the “principal executive office” of the Lifewatch Defendants, run by Sirlin, reviewed and purchased consumer accounts from the sellers.- (Id. ¶¶44, 48, 56 (internal quotation marks omitted).) The Purchase Agreement also provides that the Lifewatch -Defendants determine prices with their agents but process payments themselves. (Id. ¶¶ 51-52.)
In furtherance of their scheme, Plaintiff alleges that Defendants “provided direction, information, forms, scripts!,] and or/other materials!,]” “and/or approved or allowed ... employees, representatives, or agents to use improper sales methods.” (Id. ¶ 39; see also id. ¶¶ 59-64 (noting how an employee of the Lifewatch Defendants has reviewed sales scripts and recordings of calls between outside sellers and consumers).) More specifically, Plaintiff alleges that the Individual Defendants “participate^] personally in [Lifewatch] [Defendants’ business and in the fraudulent conduct, and/or had actual knowledge of it,” at least in part because of “numerous consumer complaints and/or lawsuits.” (Id. ¶¶ 13-14, 35.)
>2. Plaintiff’s Experience
Plaintiff is a resident of Pearl River in Rockland County, NY. (Id. ¶ 6.) He alleges he received a call from Defendants and/or their agents in July 2013 “advising him that he-was entitled to one of the [Life-watch] [Defendants’ devices because a family member purchased it for him,” though “he was told he had to pay the monthly monitoring fee.” (Id. ¶ 81.) Plaintiff alleges he gave the caller his credit card information, and paid the monthly fees. (Id. • ¶ 82.) Plaintiff also alleges he was charged the $34.95 monthly fee “even though the device that [the Life-watch] [Defendants and/or their agents shipped to him was never activated.” (Id. ¶ 86.) When Defendants “were contacted on [Plaintiffs] behalf’ and advised that his device was not activated and would not be activated, Plaintiff contends “[D]efendants responded by informing [P]lainiff that the [Defendants would continue to charge [Plaintiffs’ credit card.” (Id. if 87.)
3. Class Allegations
While Plaintiff has not yet moved to certify a class, he alleges that he will represent a class “of all persons in New York and/or the United States who purchased and/or paid for (in whole or in part), the [Defendants’ medical alert devices and/or monthly services,” with a class period to be determined, recognizing there may be a need for “a sub-class of New York residents, Massachusetts residents, Pennsylvania residents, and/or residents of other states.”. (Id. ¶¶ 94-95.) Plaintiff alleges that joinder iis impracticable, and that the numerosity requirement is met, because the putative class “is composed of thousands of persons geographically dispersed throughout New York and other parts of the United States,” and that “disposition of ... claims in a class action” is beneficial. (Id. ¶ 96.) Plaintiff also alleges, in general, that there is a risk of inconsistent or varying adjudication without a class, that adjudication without a class would impair or impede class interests, and that Defendants acted generally towards the class, justifying, injunctive or declaratory relief. (Id. ¶¶ 97-99.) Plaintiff further asserts that his claims are typical of the claims of the class because class members also paid monthly-fees due to the same misrepresentations, that he has no interests antagonistic to the class and has retained competent counsel, that, absent a class action, “[D]e-fendants will likely retain millions of dollars received as a result of [their] wrongdoing” and that class members “will not receive restitution” or “the equitable and injunctive relief sought.” (Id. ¶ 103.) Plaintiff also identifies the following common questions of law and fact: whether Defendants’ actions were improper, whether the actions violated any state’s consumer protection laws, whether Defendants were unjustly enriched, whether Plaintiff and the class are entitled to damages and/or .restitution, and whether the class would “suffer irreparable harm unless their ongoing obligation to make monthly payments to [Defendants is addressed and, what the nature, of the equitable and injunctive relief that is necessary to prevent that harm should be.” . (Id. ¶ 100.)
B. Procedural History
Plaintiff filed his initial Complaint on May 19, 2014. (Dkt. No. 1.) At a pre-motion conference held on July 7, 2014, the Court adopted a Scheduling-Order for motions to dismiss. ' (Dkt. No. 10.) On October 8, 2014, Plaintiff informed the Court that, based on limited discovery, Plaintiff intended to amend the Complaint, and that the Parties desired a revised briefing schedule, which the Court granted, (see Dkt. No. 14), and which the Court extended on .November 11, 2014, (see Dkt. No. 18.).
On November 19, 2014, Plaintiff filed an Amended Complaint. (Dkt. No. 20.) In accordance with the revised briefing schedule, 'the Lifewatch Defendants, Sirlin, and May each filed a Motion To Dismiss and associated memorandum on December 15, 2014. (Dkt.Nos.28-33.) After these Motions were filed, the Court held another pre-motion conference, (see Dkt. (minute entry for Feb, 9, 2015)), establishing a briefing schedule for the remaining Defendants’ motions to dismiss, (Dkt. No. 55). While each of .those Defendants subse
II. Discussion
A Standard of Review
1. Motion to Strike Class Allegations
Federal Rule of Civil Procedure 12(f) provides that a court may “strike from a pleading ... any redundant, immaterial, impertinent, or scandalous matter” sua sponte or “on motion made by a party.” See also Emilio v. Spring Spectrum L.P.,
Motions to strike under Rule 12(f) are rarely successful. See Belfiore v. Procter & Gamble Co.,
2. Motion To Dismiss.
•The Supreme Court has held that although a complaint “does not need detailed factual allegations” to survive a motion to dismiss, “a plaintiffs obligation to provide the ‘grounds’ of his [or her] ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation-of the elements of a cause of action will not do.” Bell.Atl. Corp. v. Twombly,
For the purposes of Defendants’ Motions To Dismiss, the Court is required to consider as true the factual allegations contained in the Complaint. See Ruotolo v. City of New York,
B. Analysis
Plaintiff makes three claims in his Amended Complaint.
The Court will address the Motion to Strike Plaintiffs class allegations and then address the merits of Plaintiffs claim. However, the Court will first address Defendants’ Mootness claim which, while included in the motion to strike section of Defendants’ Memorandum of Law, (see Li-fewatch’s Mem. of Law in Supp. of its Mot. To Dismiss (“Lifewatch Mem.”) 4 (Dkt. No. 29)), must be considered first because it is directed at the Court’s jurisdiction over the entirety of the Action, see Dean v. Blumenthal,
1. Mootness
Defendants argue that the lawsuit is moot because the Lifewatch Defendants have voluntarily initiated a refund campaign. (Lifewatch Mem. 4.) A “case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack,
“[I]n general, if the claims of the named plaintiffs become moot prior to class certification, the'entire action becomes moot.” Comer v. Cisneros,
Attached to their Motion, Defendants attach exhibits indicating that the Lifewatch Defendants have offered to “refund Plaintiff and any and all potential class members across the country for the exact conduct alleged in Plaintiffs Complaint.” (Lifewatch Mem. 4.) However, this offer is insufficient to justify dismissal on mootness grounds for too- many unresolved issues of fact remain. For example, Defendant’s promise of a refund as of yet remains just that; none of Plaintiffs allegations in the Amended Complaint suggests that Plaintiff, or any class members, has received a refund, and there is. nothing to suggest Defendants even know whom to compensate or how much each putative class member might claim by way of damages. And, even if the Court considered this evidence, (a) the refund campaign has no effect on Plaintiffs claims for declaratory and injunctive relief, see Leonard v. Abbott Labs., No. 10-CV-4676,
2. Motion to Strike
“In order for a class to be certified, the party seeking certification must comport with the requirements of Federal Rule of Civil Procedure 23.” Calibuso,
(I) the class is so numerous that joinder of all members is impracticable; ■
,(2) .there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are' typical of the claims or defenses of the class; • and
(4) the representative parties will fairly and adequately protect the interests of the class.'
Further, a party seeking certification must show that,the action has one of the following three characteristics:
(1) prosecuting separate actions by or against individual class members would create a risk of:
, (A) inconsistent or varying adjudications with respect to individual class -members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to indi-, vidual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to- protect their interests; '
.(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy, The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class rmem-bers; - ,
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in "managing a class action.
Federal Rule of Civil Procedure 23(b). In general, Rule 23 is given a “liberal rather than restrictive construction.” Duarte v. Tri-State Physical Med. & Rehab., P.C., No. 11-CV-3765,
Defendants argue that, because of the aforementioned refund campaign, a class action is not the superior method of adjudicating the putative class members’ claims. As indicated above, under Federal Rule of Civil Procedure 23(b)(3), beyond meeting the initial four criteria for a class action (numerosity, commonality, 'typicality, and representativeness), a plaintiff seeking class' certification must to show, in addition to predominance, that “a class action’is superior to other available methods for fairly and efficiently adjudicating the controversy.” See also Johnson v. Nextel Communications Inc.,
Even generously construing Defendants’ refund campaign, :there is insufficient evidence, at this time, to dismiss the superiority of a class action at thus time. The only evidence Defendants offer in support of the existence of a refund campaign is the Sirlin Affidavit, wherein Sirlin avers that “Lifewatch initiated a recall/refund campaign and advised its customers that they are entitled to a full refund if they were contacted by one of the outside companies and then purchased Lifewatch’s products or services based on those allegedly false statements,” and that “Plaintiff and any potentially class members were and still are entitled to, full redress from Life-watch’s recall/refund campaign,” (Life-watch Mem. Ex. B (Sirlin Aff.) ¶¶9-10.) As Plaintiff notes, it remains unclear how many potential class members have been paid or even contacted as part of the recall campaign, but that discovery will likely close the gaps in the record.. (Pl.’s Mem. of Law in Opp’n to Defs.’ Motions to Dismiss PL’s Class Action Complaint and to Strike PL’s Class Allegations (“PL’s Life-watch Opp’n.”) 20-21 (Dkt. No. 72).)
As a result,of these and other unanswered questions, this case is distinguishable from the primary case that Defendants cite, Pagan v. Abbott Labs., Inc.,
Next, Defendants claim that “Plaintiff is an inadequate class representative” because bringing suit undermines the refund process, which Defendants contend is “the most efficient and expeditious solution and mechanism.” (Lifewatch Mem. 6.) As indicated above, under Federal Rule of Civil Procedure 23(a)(4),' Plaintiff must show that, as class representative, that he will “fairly and adequately protect the interests of the class.”
Defendants claim that the lawsuit “harms[] the interests of potential class members” because it delays payment and “dilute[s]” the money available to class members, (Lifewatch Mem. 6.) However, as indicated above, it is not clear that the current refund campaign is available to all class members, or that the refund currently being offered is adequate to make them all whole. Further, Plaintiff seeks additional remedies in this suit, including disgorgement of profits and declaratory and injunctive relief. (See Am. Compl. 21.) Therefore, and certainly before discovery is completed, it is not at all.clear that Plaintiff, , by filing this Action, has harmed the interests of the class, or is unable to “fairly and adequately” represent their interests. Accordingly, the Court will not strike the class allegations on this basis.
. c. Ascertainability
Defendants also claim that the class members are not ascertainable because “individual inquiries” would necessarily predominate over common questions. (Lifewatch Mem. 6-7.) In addition to the requirements of Rule 23, “courts have added an ‘implied requirement’ that the class be ascertainable.” Ackerman v. Coca-Cola Co., No. 09-CV-395,
Defendants claim that the class members are not ascertainable because “it [will] be impossible to ascertain which customers would have opted to receive a free emergency medical alert device and pay monthly service charges irrespective of whether they had been told that a friend or family member had already purchased the device.” (Lifewatch Mem. 7.) Defendants also note that the Court would have to make several individual determinations including, but not limited to, “which outside sales company contacted the potential class member[,] the dialogue that occurred during each phone call[,] and whether the potential class member would have paid for the service irrespective of the statements made by the outside company’s sales employee.” (Id.) The main case that Defendants cite in support is Vaccariello v. XM Satellite Radio,
Defendants’ argument is certainly not “preposterous.” Rather, it is quite possible that some of the putative class members did not find the misrepresentations material; it may have been the fact that the device was free except for the monitoring fee, and not that it was purportedly purchased by a family member or friend, that caused them to . pay the monitoring fee. It is conceivable that ascertaining class members in this case, assuming a class is certified, will be challenging, and the third inquiry that Defendants identified — whether each class member relied on the misrepresentation — is likely the biggest hurdle. See Weiner v. Snapple Beverage Corp., No. 07-CV-8742,
The Second Circuit has also made clear, however, that-“failure to certify an action ... on the sole ground that it would be unmanageable is disfavored and should be the exception rather than the rule.” In re Visa Check/MasterMoney Antitrust Litig.,
Moreover, at the very least, “[c]lass discovery will serve to refine the class and the allegations and to aid the [C]ourt in determining whether class certification is appropriate,” Simpson v. Ramada Worldwide, Inc., No. 12-CV-5029,
d. Suitability of Class
Defendants also allege that Plaintiff cannot satisfy any of Rule 23’s requirements “because Plaintiffs common law claims would break down into innumerable state-specific issues that could riot be tried commonly across the ' class and that would create incurable case management problems.” (Lifewatch Mem. 8.) In support, Defendants cite Barrus v. Dick’s Sporting Goods, Inc.,
In contrast to Defendants’ position, courts in the Second Circuit nonetheless have, recognized that..“[w]hen a class action raises common issues -of conduct that would establish liability under a number of states’ laws, it is possible for those common issues to predominate and for class certification to be an appropriate mechanism .for' handling the dispute.” Steinberg v. Nationwide Mut. Ins. Co.,
e, Extraterritoriality
Defendants finally argue that Plaintiffs New York GBL claims are unfit for class certification because they cannot be applied to consumers outside New York State. (See Lifewatch Mem. 10-11 (citing, inter alia, Goshen v. Mut. Life Ins. Co. of N.Y.,
While the Court agrees that New York GBL protections only apply to transactions that occur within New York, “a purchaser’s citizenship or residency does not affect where a transaction occurs.” Absolute Activist Value Master Fund Ltd. v. Ficeto,
According to the Amended Complaint, only Plaintiffs residence, which is in New
3: Motion to Dismiss
a. New York General Business Law Claim
Defendants argue that Plaintiff has failed to state a claim under the New York GBL. The elements of a GBL § 349 claim are (1) “an act or practice that is” (a) “deceptive or misleading in a material way” and (b) consumer oriented; and (2) injury “by reason thereof.” Koch v. Greenberg,
In response; Plaintiff, in a footnote, lists “15 paragraphs about harm and damages to show the absurdity of the [Defendants’ argument,” and also argues that he purchased the Lifewatch device because of the “lies and deceptive practices” outlined in the Amended Complaint, as evidenced by the existence of the “refund campaign” Defendants reference. (Pl.’s Lifewatch Opp’n 12-14 & n. 7.) While the Court disagrees that each of these 15 paragraphs refers to. damages, the Court finds that Plaintiff has alleged enough to plead both causation and damages. For example, in paragraph 83 of the Amended Complaint, Plaintiff alleges that he “did, in fact, rely upon the misrepresentations,” misrepresentations that are described elsewhere in the Amended Complaint, when he “gave his credit card number to [D]efen-
b. Fraud Claim
Defendants also claim that Plaintiff has failed to sufficiently plead fraud under the specificity standard of Federal Rule of Civil Procedure 9(b)' Under this Rule, “[i]n'alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake,” though “malice, intent;- knowledge, and other conditions of a person’s mind may be alleged generally.” To satisfy Rule 9(b), a complaint must “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and'fyhen' the statements were made, and (4) explain why the statements were fraudulent.” Lerner v. Fleet Bank, N.A.,
Rule 9(b) applies broadly to allegations “premised on allegations of fraud,” In re Morgan Stanley Info. Fund. Sec.,
Defendants claim to identify three Rule 9(b) deficiencies in Plaintiffs Amended Complaint. First, Defendants argue that Plaintiff “fails to specify the statements that he contends were fraudulent with particularity or explain how, if he received a free device and knowingly authorized monthly service charges related to the device, the statements were actually fraudulent.” (Lifewatch Mem. 14.) The Court disagrees because Plaintiff, in the Amended’Complaint, clearly identifies the allegedly fraudulent statements. He describes two specific fraudulent statements, both of which were part of the alleged scheme: (1) the statement that a family member or friend purchased the device' for the consumer, (see, e.g., Am. Compl. ¶¶ 1, 37, 82), and (2) the statement that the consumer would not be charged a monthly fee until the device was activated, (see id. ¶¶72, 80). These allegations, and Plaintiffs alleged reliance on the statements, are sufficient under Rule 9(b).
Second, Defendants argue that “Plaintiff fails to identify the speaker of the fraudulent statements,” including “the name of the speaker, who the speaker represented, the phone number' of the speaker, etc.” (Lifewatch Mem. 14.) In the Amended Complaint, Plaintiff alleges that he received a call from “the [Defendants and/or their agents.” (Am.Compl. ¶81.) While Plaintiff admittedly does not identify the name of the speaker or the specific telephone number that called, neither of which it is realistic.to expect Plaintiff to remember, cf. Odom v. Microsoft Corp.,
Third, Defendants claim that Plaintiff “fails to state where and when the alleged representations were made,” namely “the date and time that he received the alleged phone call” and “where he received the alleged phone call.” (Lifewatch Mem. 15 (emphasis in original).) Plaintiff alleges that he received the phone call in “July of 2013.” (Am. Compl. ¶ 81.) Defendants are correct that Plaintiff does not indicate the exact day in July 2013 when he received the call, nor if he received the call at home, oh a cell phone, or. elsewhere. Even if Plaintiff- could have used phone records to identify the precise date on which he received the call in question, that failure is not dispositive for Rule 9(b) purposes. See In re Ramos, No. 11-BR-2642,
■ As a more general matter, Defendants have sufficient “notice” of Plaintiffs claim such that they can respond and prepare an adequate defense. The marketing scheme, its contents, and its relation to Plaintiff are described in the Amended Complaint, and Defendants, at this stage of the case, do not contest that the misrepresentations at issue were uniformly made to consumers, minimizing the importance of who made the misrepresentations at issue and when. Accordingly, the Court finds that the Amended Complaint meets the pleading standards of Rule 9(b), and Defendants’ Motion To Dismiss is denied as to Plaintiffs fraud claim.
. c, Unjtyst Enrichment Claim
Defendants also argue that Plaintiffs unjust enrichment claim “is duplicative of his fraud and §§ 349 and 350 causes of action.” (Lifewatch Mem. 15.) Courts in the Second Circuit have recognized that “an unjust enrichment claim cannot survive where it simply duplicates, or. replaces, a . conventional contract or tort claim.” Koenig v. Boulder Brands, Inc.,
To state a claim for unjust enrichment under New York law, a Plaintiff must plead that (1). the defendant was enriched; (2) at the expense of the plaintiff; and (3) that it would be inequitable to permit-the defendant to retain that which is claimed by Plaintiff. Koenig,
Defendants have the better of the argument, as is addressed squarely by the case Defendants cite, Koenig v. Boulder Brands, Inc.,
The allegations here suffer from the same infirmity. If Plaintiff’s GBL and fraud claims are successful, the unjust enrichment claim is duplicative, as all three claims stem from the same underlying allegation: that Plaintiff paid monthly fees for a Lifewatch device based on Defendants’ misrepresentations. If Plaintiffs GBL and fraud claims are not successful, the reason for their insufficiency would not, be remedied by an unjust enrichment claim. Accordingly, the Court grants Defendants’ Motion To Dismiss Plaintiffs unjust enrichment claim as duplicative. See Paulino,
d. Piercing the Corporate Veil
In addition to the above arguments, the Individual Defendants also each argue that Plaintiff has failed "to allege “facts sufficient to pierce the corporate veil” such that they can be held individually liable. (Mitchell May’s Mem. of Law in Supp. of his Mot. To Dismiss 3 (Dkt. No. 31); Evan Sirlin’s Mem. of Law in Supp. of his Mot. To Dismiss 3 (Dkt. No. 31).)
Under New York law,;“a court may pierce the corporate -veil where 1) the owner exercised complete domination over the corporation with respect to the transaction at issue[,] and 2) such domination was used to commit a fraud or wrong that injured the party seeking to pierce the veil.” MAG Portfolio Consult, GMBH v. Merlin Biomed Grp.,
fact specific inquiry, and courts may consider many factors, including (1) disregard of corporate- formalities; (2) inadequate capitalization; (3) intermingling of funds; (4) overlap in ownership, officers,- directors, and personnel; (5) common office space, address and telephone numbers of corporate entities; (6) the degree, of discretion shown by the allegedly dominated corporation; (7) .whether the dealings between the entities are at arms length; (8) whether the corporations are treated as independent profit centers; (9) payment or guarantee of the corporation’s debts by the dominating entity; and (10) intermingling of property between the entities.
MAG,
Plaintiff does not deny that this demanding standard is proper to determine if veil-
Given these contentions, there are two questions for the Court to consider: (1) has Plaintiff sufficiently alleged the Individual Defendants’ participation in the alleged misconduct, and (2) if not, did Plaintiff allege sufficient facts to pierce the corporate veil? With regard to both questions, the allegations at issue are those in paragraphs 32 through 34 in the Amended Complaint. In these paragraphs, Plaintiff alleges that the Individual Defendants “had personal involvement with their respective [Defendants’ corporate business activities and have been involved in the decision making relating to the improper, deceptive, and/or fraudulent activity involved in this ease,” (Am.Compl. ¶32), “controlled the day-to-day operations of the [Defendant companies and developed aspects of business activities, such as sales and marketing plans and activities,” (id. ¶ 33), and “were aware of, or should have been aware of, the improper business practices and should have taken action to prevent the improper practices and changed the company’s business practices,” (id. ¶ 34).
These allegations are only conelusory and thus are insufficient to establish individual participation. In cases where courts have found individual defendants to have participated in the misrepresentations at issue, the complaints specifically alleged personal participation, rather than mere awareness or control. See Mayfield,
With regard to piercing the corporate veil, as Plaintiff appears to admit in his Opposition, Plaintiff makes no allegations that either Individual Defendant dominated any of the Lifewateh Defendants such that veil-piercing is appropriate. Accordingly, the Individual Defendants’ Motion To Dismiss Plaintiff’s claims against them is granted.
III. Conclusion
For the foregoing reasons, Defendants’ Motions To Dismiss are granted in part and denied in part.- Defendants’ Motions to Strike Plaintiffs Class Allegations are denied. The Lifewateh Defendants’ Motion is granted, without prejudice, with respect to Plaintiffs unjust- enrichment claim, and denied in all other respects. The Individual Defendants’ Motions are granted with respect to all claims, without prejudice to amend. The Court grants Plaintiff thirty days to file a Second Amended Complaint, addressing the deficiencies outlined in this Order and Opinion. The Clerk of the Court is directed to terminate the pending Motions. (Dkt.Nos. 28, 30, 32.) The Clerk of the Court is also directed to terminate the Motions that pertain to Defendants that have been dismissed from the case: (Dkt.Nos. 61, 68.)
SO ORDERED.
. Additionally, pursuant to certain "Insertion Orders” and a "Marketing Alliance Agreement,” some consumers purchased services and equipment from Connect America and Philips Lifeline, Defendants who have already been dismissed from this Action. (Am.Compl. ¶¶ 73, 76, 92-93.) >
. The Amended Complaint does not specify what these complaints were, in what form they were made, or when- they were made.
. The Court has omitted factual allegations that pertain to Defendants’ agreements with others that have already been dismissed from this Action.
. Plaintiff al5o alleges that a letter enclosed with his device indicated that certain docu- • mentation, including the financial agreement, a 30-day guarantee, terms and conditions,
. The main document is Plaintiff’s Opposition to the Lifewatch Defendants’ Motion; the Opposition to the Individual Defendants’ Motions is attached as an exhibit. (See Dkt. No. 72.)
. Plaintiff also seeks equitable and injunctive relief in a separate count. (Am.Compl. ¶¶ 118-121.)
. Of course, this ruling is without prejudice to oppose Defendants' later opposing Plaintiff's putative class certification motion. Indeed, the "wisdom of the plaintiff’s decision to fore-go” the Refund Program "is questionable, particularly in light of the number of cases that have denied class certification in consumer class actions because a volunteer, recall, and/or refund program provided a superior method of compensating the putative class members.” Leonard, 2012 WL 764199, at *27; see also In re Aqua Dots Products Liab. Litig., 270 F.R.D. 377, 383-85 (N.D.Ill. 2010) (noting that refund policies can be superior means of compensating consumer victims because class actions "divert a substantial percentage of the refund’s value to the class lawyers”). Plaintiff's counsel presumably has discussed this issue with Plaintiff.
. It is worth noting that while the court in Rodriguez v. It's Just Lunch, concluded that that the plaintiffs class certification motion related to the unjust enrichment claims should be denied,
. The Court notes, however, that should it turn out that only the transactions of New York class members occurred, at least in part, in New York, the prudent course may well be for the Court to “limit” Plaintiffs GBL claims "to New York class members,” as Defendants suggest. (See Lifewatch Mem.11.)
. Other than the name involved, the "piercing the corporate veil” portions of the May and Sirlin memoranda are identical. The Court, for efficiency purposes, will therefore only refer to arguments in the'May memorandum from this point forward.