Traxler v. PPG Industries, Inc.Traxler v. PPG Industries, Inc.
OPINION AND ORDER
Presently before the Court is the Motion to Dismiss of Defendants PPG Industries, Inc., PPG Architectural Finishes, Inc., and PPG Architectural Coatings, LLC (collectively, “Defendants” or “PPG”). (Doc #: 26 (“Motion”)). The Court notes that the Motion does not seek dismissal of all claims. Specifically, Defendants do not seek dismissal of the claims for breach of the implied warranty of merchantability brought by Plaintiffs residing in the States of Massachusetts, Michigan and Missouri (Count IV). Nor do they seek dismissal of the Magnuson-Moss Warranty Act claims brought by the same Plaintiffs based on their merchantability claims (Count I). Having reviewed the Motion, Plaintiffs’ opposition brief (Doc #: 30), and PPG’s reply brief (Doc #: 32), and the record, the Court is prepared to issue its ruling.
I.
This putative class action arises from PPG’s marketing and sale of Olympic®
Based on these factual allegations, Plaintiffs from nine states bring the following claims against PPG.
II.
When determining whether Plaintiff has stated a claim upon which relief can be granted, the Court must construe the complaint in the light most favorable to the Plaintiff, accepting all factual allegations as true, and determine whether the Com
The Court in Ashcroft v. Iqbal,
III.
A. Express Warranty (Count III)
The following express limited warranty at issue in Count III is written on the label appended to all cans of Rescue It! Products purchased by Plaintiffs, and provides:
Since 1938 more people have protected the natural beauty of their homes with OLYMPIC than any other stain. Olympic guarantees your satisfaction with the application and performance properties of this product when applied to a properly prepared surface in accordance with label directions. OLYMPIC MAKES NO OTHER EXPRESS WARRANTIES. IF THE PRODUCT FAILS TO CONFORM TO THIS LIMITED WARRANTY, OLYMPIC WILL, AT YOUR OPTION, FURNISH REPLACEMENT PRODUCT OR REFUND THE PURCHASE PRICE. LABOR, COSTS OF LABOR FOR THE APPLICATION OR REMOVAL OF ANY PRODUCT, AND ALL OTHER DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARE SPECIFICALLY EXCLUDED. To make a claim under this Limited Warranty, supply dated proof of purchase to the store where you purchased the product or to OLYMPIC, One PPG Place, Pittsburgh, PA 15272. This Limited Warranty gives you specific legal rights, and you may also have other rights that vary from state to state. Some states do not allow the exclusion or limitation of incidental or consequential damages so the above exclusion or limitation may not apply to you.
(Doc #: 26-2, at 2 of 15.) The express limited warranty on PPG’s website currently provides:
Warranty: Olympic guarantees satisfaction with the application and performance properties of this product when applied to a properly prepared surface in accordance with label directions. This guarantee is limited to your choice of product replacement or refund of the purchase price.
PPG’s limited warranty on the labels has three essential features: (1) it guarantees satisfaction with the product when applied to a properly prepared surface in accordance with the label’s directions, (2) it provides that PPG will refund the purchase price or provide replacement product to a dissatisfied customer upon request, and (3) it prohibits the buyer from recovering consequential (and other) damages. The limited warranty on PPG’s website has two essential features: (1) it guarantees satisfaction with the product when applied to a properly prepared surface in accordance with the label’s directions, and (2) it provides that PPG will refund the purchase price . or provide replacement product. Notably missing from the website-warranty is a provision excluding consequential damages.
Assuming for purposes of argument that the label-warranty subsumes the website-warranty, PPG contends that its limitation of remedies and exclusion of consequential damages complies with the Uniform Commercial Code (“UCC” or “Code”) of Plaintiffs’ home states. Because Plaintiffs do not allege that they were unsatisfied with the Product and PPG failed to honor their request for refund or replacement product, they fail to state a claim for breach of express warranty. In support of this, contention, PPG cites cases from each home state wherein courts have rejected claims for damages beyond repair or replacement where the seller’s warranty contains an exclusive remedy clause similar to the one at issue, or excludes consequential damages, or does both. (See cases listed at Doc #: 26-1, at 20 nn.7, 8.)
Plaintiffs argüe that PPG’s express limitation of. remedies to refund, or replacement fails of its essential purpose because the Products are inherently defective, and its exclusion of consequential (and other) damages is unconscionable and unenforceable. Plaintiffs also argue that PPG' has made numerous objectively measurable affirmations of fact “including resistance to water, temperature, cracking and peeling” which give rise to additional express warranties. PPG counters that those representations are nothing more than advertising puffery for which it has no liability. •
. 1. Failure of Essential Purpose
The general rule is that a seller may legitimately limit the buyer’s remedies to “return of the goods and repayment of. the purchase price or to repair and replacement of nonconforming goods or parts,” O.R.C. 1302.93(A)(1).
Whether an exclusive-remedy provision in a limited warranty has failed of its essential purpose is a question of fact. Lincoln Elec. Co. v. Technitrol, Inc., No. 1:08 CV 2346,
Standing in isolation, PPG’s remedies-limitation and consequential damages-exclusion is typical of limited warranties on consumer products sold by retailers across the country, and they comply with the UCC of every state. Thus, when a consumer is unsatisfied with a product, a refund of the purchase price or replacement with a new product is a reasonable remedy.
However, where a product is inherently defective, the remedy of a replacement product that is equally defective is meaningless. See, e.g., Sutphen Towers, Inc. v. PPG Indus., Inc., 2005 WL
In the instant case, Plaintiffs from nine different states allege that, within a few months after properly applying the Rescue It! Products to their decks, the Products deteriorated prematurely, causing bubbling, cracking and peeling and damage to the underlying deck structures — corroborating their allegations with photographs of the damage. (See FAC at 27-43.) Plaintiffs claim that the Rescue It! Products failed to live up to PPG’s numerous representations about the Products’ performance and are inherently, latently defective; consequently, the remedy of a replacement product or a refund is illusory, leaving plaintiffs with damage to their decks and diminished home value. “[Wjhere an apparently fair and reasonable [remedies limitation] because of circumstances fails in its essential- purpose and operates to deprive either party of the substantial value of the bargain, it must give way to the general remedy provisions of this Article.” O.R.C. 1302.93 cmt. 1.
2. Unconscionability
Generally speaking, a seller may legitimately limit Or exclude recovery of consequential damages “unless the limitation or exclusion is unconscionable.” UCC 2-719(c).
When considering a plaintiffs allegations of unconscionability, the parity of bargaining power “bears some consideration” with regard to a claim of uncon-scionability. Zaremba,
The UCC does not define “unconsciona-bility.” In applying the Code, however, courts have recognized that unconsciona-bility has both a procedural and substantive element. The procedural element focuses on oppression and surprise, which arise, respectively, from an inequality in bargaining power resulting in the absence of a meaningful choice or hidden, unexpected terms. See, e.g., A & M Produce Co. v. FMC Corp.,
Plaintiffs contend that the exclusion of consequential and other damages in PPG’s limited warranty is “procedurally and substantively unconscionable and thus fails under U.C.C. § 2-302.” (FAC ¶ 149). The question before the Court is whether the clause limiting consumers’ remedies to a refund or replacement product and excluding eonséquential and other damages is unconscionable.
Courts have found as unconscionable situations where the seller failed to disclose latent defects of which it had knowledge and the buyer had no meaningful choice in determining the warranty’s terms. See, e.g., Martin v. Joseph Harris Co.,
The Court finds that the question of unconscionability is another fact question rendering dismissal premature.
3. Advertising Puffery
Plaintiffs allege that the numerous representations PPG has printed on its labels, advertisements and website constitute express warranties that PPG has breached. (FAC ¶¶ 142-147). Defendants argue that these statements are “non-actionable opinions or advertising puffery” that do not create express warranties. (Motion, at 10). The UCC is clear.
Any affirmation of fact or promise made by the seller to the buyer which .relates to the goods and becomes part of the basis of the bargain, creates an express warranty that the goods shall conform to the affirmation or promise.
O.R.C. 1302.26(A)(1).
According' to PPG, the only promise it makes, pursuant to its limited warranty, is satisfaction with its Rescue It! Products when applied to properly prepared surfaces in accordance with its directions. Thus, all those representations printed on its labels and website amount to nothing more than puffery. This begs the question, what exactly is PPG guaranteeing satisfaction with? Put differently, what exactly is in, those cans that PPG is selling?
A closer look at the warranty provides guidance:;
Olympic guarantees your satisfaction ■with the application .and performance properties of this product when applied to a properly prepared .surface in accordance with label directions.
What are those performance ■ properties? Looking at the labels alone, PPG makes the following representations regarding its Products’ performance:
• WATERPROOFING PROTECTION
• RESISTS CRACKING AND PEELING
• PROVIDES A MILDEW RESISTANT COATING
• LOCKS DOWN SPLINTERS
• FILLS CRACKS UP TO l/4‘
• BAREFOOT FRIENDLY
• THE ULTIMATE REMEDY FOR SEVERELY WEATHERED OR • DAMAGED WOOD OR CONCRETE
(FAC at 14.)
According to the UCC, “any description of the goods which is made part of the
In view of the principle that the whole purpose of the law of warranty is to determine what it is that the seller has in essence agreed to sell, the policy is adopted of those cases which refuse except in unusual circumstances to recognize a material deletion of the seller’s obligation. Thus, a contract is normally a contract for a sale of something describable and described. A clause generally disclaiming “all warranties, express or implied” cannot reduce the seller’s obligation with respect to such description and therefore cannot be given literal effect under Section 2-316.
Id. (emphasis added). Moreover,
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.
UCC 2-313 cmt. 3. Nor do Plaintiffs have to show that PPG had the specific intent to make affirmations of fact if a description of the goods is made part of the basis of the bargain. Id.
The Court concludes that the representations PPG made about the performance properties of the Rescue It! Products on its labels form the basis of the bargain and constitute express warranties. The Court rejects PPG’s argument asking the Court to dismiss the express warranty claim on the basis that Plaintiffs failed to identify the precise ‘representations upon which they relied when purchasing the Products. Plaintiffs allege, and the Court presumes, that Plaintiffs read the description of the Products printed on the labels of the cans, and relied on those representations, before purchasing them. See also Bernick v. Jurden,
Because the claim for breach of express warranty is riddled with questions of fact, the Motion to Dismiss this claim is denied.
B. Implied Warranty of Fitness for a Particular Purpose (Counts VI and VII)
In Counts VI and VII, Plaintiffs allege breach of the implied warranty of merchantability against PPG. Specifically, Plaintiffs assert that “Defendants impliedly warranted to Plaintiffs.. that the Rescue It! Products were of a certain quality, free from defects, fit for the ordinary purpose of resurfacing decks and similar structures, and suitable for providing protection to deck structures from harsh weather conditions and lasting longer than ordinary deck paints or stains.” (FAC ¶¶ 155,165.)
In Counts VI and VII, Plaintiffs assert that “Defendants impliedly warranted to Plaintiffs that the Rescue It! Products were of a certain quality, free from defects, fit for the ordinary purpose of resurfacing decks and similar structures, and fit for the particular purpose of providing protection to deck structures from harsh weather conditions and lasting longer than
In short, resurfacing decks and providing protection from harsh weather conditions and lasting longer than ordinary deck paints or stains is the ordinary purpose of Rescue It! Products.
Comment 2 to the Uniform Commercial Code’s provision addressing the implied warranty of fitness for a particular purpose that has been adopted by all Plaintiffs’ home states recognize that a plaintiff must identify a unique purpose that is distinct from the product’s ordinary purpose:
A “particular purpose” differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question.
See U.C.C. § 2-315 cmt. 2. In addition, Plaintiffs’ home states have repeatedly held that a plaintiff must plead a particular purpose different from the product’s ordinary purpose in order to state a claim. See, e.g., Gall v. Allegheny Cnty. Health Dep’t,
Moreover, the cases Plaintiffs cite in support of the claim for breach of the implied warranty of fitness for a particular purpose are unavailing. In Van Wyk v. Norden Labs., Inc.,
C. Implied Warranty of Merchantability (Counts IV and V)
Counts IV and V assert claims for breach of the implied warranty of merchantability and, for reasons that will become apparent, will be addressed by the Court altogether.
1. Privity of Contract Requirement
Count IV asserts this claim on behalf of Plaintiffs residing in California, Ohio, Pennsylvania, and Washington and states
PPG is correct that California, Ohio and Washington Plaintiffs cannot state a claim for implied warranty of merchantability absent privity of contract. In California, for example, where a purchaser of a product relies on representations made by a manufacturer in labels or advertising material, recovery from the manufacturer may be allowed on a theory of express warranty without a showing of privity. Clemens v. DaimlerChrysler Corp.,
PPG is incorrect with respect to Pennsylvania, where the cases show that privity is no longer required for breach of implied warranty of merchantability claims. See Kassab v. Central Soya,
Count V asserts the breach of the implied warranty of merchantability claim on behalf of Plaintiffs residing in New York and North Carolina, acknowledging that privity is required.
Defendants were and are in privity with each of the Plaintiffs and class members by law or by fact. Plaintiffs have had sufficient direct dealings with Defendants or their authorized dealers, franchisees, representatives, and agents to establish privity of contract. Alternatively, Plaintiffs and class members are intended third-party beneficiaries of contracts, including express warranties, between Defendants -and their dealers,...; Defendants’ advertisements were aimed at Plaintiffs and class members, and Defendants’ warranties were expressly written for the benefit of Plaintiffs and class members as end users of Rescue It Products. Defendants’ authorized dealers,...on the other hand, were not intended to be the ultimate consumers of Rescue It Products and have no rights under the warranty agreements provided by Defendants; these intermediary entities made no changes to Defendants’ product, -nor made any additions to the warranties issued by Defendants. Accordingly, Defendants are estopped from limiting claims for common law and statutory violations based on a defense of lack of privity.
(Compl. ¶ 172). The Plaintiffs appear to argue two exceptions to the privity requirements of New York and North Carolina. Because privity is also required in California, Ohio, and Washington, Plaintiffs presumably would assert the above exceptions in these states as well. The two exceptions of “direct dealings” and third-party beneficiaries are discussed below.
2. “Direct Dealings” or Agency
Plaintiffs allege that Defendants “had direct dealings with Plaintiffs and putative class members through agents, dealer, and/or representatives,” which is sufficient to support an exception to the privity requirement. (Mem. in Opp. at 15). However, the Plaintiffs’, argument is flawed for several reasons. First, Plaintiffs do not sufficiently allege that Lowe’s, was acting as Defendant’s agent., In fact, Plaintiffs allege. nothing more than conclusory statements that they had “direct dealings” with the supposed agents. (See Rep. Br. at 16-17). Even .if the states below recognized an agency exception to the privity requirement, Plaintiffs have failed to demonstrate facts sufficient to support such an argument.
Second, the only case Plaintiffs cite to support the “direct dealings” argument is unavailing. In Daitom, Inc. v. Pennwalt Corp., No. CIV. A. 80-2080,
a. California
California courts have rejected, the “direct dealings” argument as an exception to
b. Ohio
Ohio has also rejected the “direct dealings” argument where the agency relationship between the manufacturer and the retailer is not clear. In Curl v. Volkswagen of Am.,
c. New York
Similarly, New York courts have required “cognizable proof of an agency relationship” in order to establish an exception to the privity requirement. Lexow & Jenkins, P.C. v. Hertz Commercial Leasing Corp.,
Like California, Ohio, and New York, North Carolina courts have continually declined to recognize privity of contract between a consumer and manufacturer.
e. Washington
Washington case law does not recognize a “direct dealings” or agency exception to the privity requirement in regard to claims for breach of the implied warranty of merchantability. While Washington recognizes a third-party beneficiary exception to the privity requirement,
3. Third-Party Beneficiaries
Alternatively, Plaintiffs assert that they are the known end users of the Rescue It! Products and, therefore, the intended third-party beneficiaries of any implied warranties. This, Plaintiffs claim, acts as an exception to the privity requirement. (FAC ¶ 172). Nevertheless, Plaintiffs argue that the inquiry into third-party beneficiary status is fact-sensitive and not ripe for resolution at the pleading stage. (Mem. in Opp. at 16). Thus, Plaintiffs argue, the breach of the implied warranty of merchantability counts should not be dismissed. However, Plaintiffs’ reliance on Sec’y of State for Def. v. Trimble Navigation Ltd.,
However, in Dunkin’ Donuts Franchised Rests., LLC v. Claudia I, Civil Action No. 12-2010 LLC,
That said, the Court will review case law from the remaining states to determine whether those states recognize a third-party beneficiary exception to the privity requirement.
a. California
On this -issue,, California case law is somewhat inconsistent. Courts have held that the privity requirement does not bar a consumer from asserting an-implied warranty claim- against a manufacturer when the consumer can show that he or she is a third-party beneficiary. See Gilbert Financial Corp. v. Steelform Contracting Co.,
Other California cases, however, have held that a third-party beneficiary argument is not an exception to the privity requirement, Xavier v. Philip Morris USA, Inc.,
b. Ohio
Ohio, and this Court in particular, has rejected the argument regarding third-party beneficiaries. In Savett v. Whirlpool Corp., No. 12 CV 310,
The statement in Savett is strikingly similar to the Plaintiffs’ allegations in this case. Plaintiffs claim that “Plaintiffs and class members are intended third-party beneficiaries of contracts” between Defendants and their dealers. (FAC ¶ 172). They make no other specific allegations supporting this contention. Absent some additional allegation, Plaintiffs’ purchase of Rescue It! Products from Lowe’s was a mere “downstream consumer transaction.” Savett,
c.New York
New York recognizes an exception to the privity requirement for third-party beneficiaries in particular cases. See Kofa,
A seller’s warranty whether express or implied extends to any natural person if it is reasonable to expect that such person may use, consume or be affected by the goods and [who is injured in person] by breach of the warranty. A seller may not exclude or limit the operation of this section.
Thus, a third-party beneficiary argument is tenable where it is reasonable for the manufacturer to expect that a consumer would use or be affected by the goods. However, New York courts have interpreted this provision to apply only to personal injury cases; Cf. Hole,
d.North Carolina
It is well established that North Carolina recognizes a third-party beneficiary exception to the privity requirement. See, e.g., Coastal Leasing Corp. v. O’Neal,
e. Washington
The Supreme Court of Washington has carved out a third-party beneficiary exception to the general rule that a vertical non-privity plaintiff cannot recover from a remote manufacturer for breach of implied warranty. Touchet Valley Grain Growers, Inc. v. Opp & Seibold Gen. Const. Inc., 119 Wash.2d 334, 831 P.2d 724 (1992); Kadiak Fisheries Co. v. Murphy Diesel Co.,
Here, the Plaintiffs have not alleged that PPG knew the identity, purpose, or requirements of their specifications. In addition, the Rescue It! Products were purchased at Lowe’s retailers, not shipped directly to the Plaintiffs on behalf of the Defendant-Manufacturer. Therefore, the Washington cases are distinguishable. In Touchet, the defendant knew the plaintiffs identity, purpose, and requirements for the grain storage building at issue. Touchet,
In addition, the case of Urban Dev. v. Evergreen Bldg. Prods.,
For all these reasons, the merchantability claims of Plaintiffs residing in Washington are dismissed with prejudice; and the merchantability claims of Plaintiffs residing in California, Ohio New York and North Carolina are dismissed without prejudice.
D. Magnuson-Moss Warranty Act (Count I)
PPG asks the Court to dismiss the Mag-nuson-Moss Warranty Act (“MMWA”) claim asserted in Count I. In general, the MMWA provides a federal cause of action for state warranty claims. 15 U.S.C. § 2301 et seq. To the extent the state-law express and implied warranty claims survive dismissal, so does the MMWA claim asserted in Count I.
E. Declaratory Judgment (Count II)
In Count II, Plaintiffs bring a claim seeking declaratory, injunctive and equitable relief. The Declaratory Judgment Act states that “[i]n a case of actual controversy within its jurisdiction ... any court of the United States.. .may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201. “However, the declaratory judgment statute ’is an enabling Act, which confers a discretion on the courts
Where a plaintiff has claims cognizable under state statutes and case law which afford him complete relief, “the extraordinary award of a declaratory judgment will not be useful in clarifying nor settling the legal relations” between the parties. Zaremba,
F. Unjust Enrichment (Count VIII)
In Count VIII, Plaintiffs assert a claim for unjust enrichment. PPG seeks to dismiss the claim on several bases. Because this is pled as an alternative theory to Plaintiffs’ express warranty claim, the Court declines to dismiss the unjust enrichment claim at this time.
G. Ohio Consumer Sales Practices Act (Count IX)
In Count IX, Plaintiffs residing in Ohio allege a claim for violation of the Ohio Consumer Sales Practices Act (“OCSPA”), Ohio Revised Code § 1345.01 et seq. Ohio Plaintiffs assert that PPG knowingly misrepresented that the Rescue It! Products were chip-, peel-, and crack-resistant, were suitable for providing protection to decks from harsh weather conditions, and lasted longer than ordinary deck paints and stains. This alleged deception, if proven true, would violate O.R.C. 1345.02, which prohibits “suppliers” from committing “an unfair or deceptive act or practice in connection with a consumer transaction.”
PPG asks the Court to dismiss this claim because, it contends, the Ohio Products Liability Act (“OPLA”), §§ 2307.71 et seq., preempts OCSPA claims. Ohio Plaintiffs concede that OPLA abrogates OCSPA claims that are “primarily rooted in product-liability claims,” but contend that the OCSPA claim is not a product liability claim as defined in the OPLA.
A point of distinction involves damages. Under the OPLA, plaintiffs asserting “product liability claims” may recover compensatory damages due to “harm.” Harm includes physical damage to property other than the product. It does not include “economic loss.” Plaintiffs assert they are only seeking economic loss. Compare O.R.C. 2307.71(A)(2) (defining “economic loss”), (A)(7) (defining “harm”), and (A)(13) (defining “product liability claim”).
There are numerous Ohio cases holding that the OPLA preempts OCSPA claims,
The Court is inclined to deny the motion to dismiss .the OCSPA claim at this time for two reasons. One, this claim sets forth an alternative theory of recovery. Two, in Delahunt v. Cytodyne Technologies, Southern District Judge Marbley noted that a cause of action accrues under the OCSPA as soon as the allegedly unfair or deceptive transaction occurs.
Accordingly, the Court denies the motion to dismiss this claim at this time.
H. North Carolina Unfair and Deceptive Trade Practices Act (Count XI)
PPG contends that the North Carolina Unfair and Deceptive Trade Practices Act (“UDTPA”) claim asserted in Count XI is subject to dismissal under North Carolina’s economic loss rule. In support, it cites Bussian v. DaimlerChrysler Corp.,
The Court has reviewed the cases and declines to hold that the economic loss rule bars Plaintiffs’ UDTPA claim. First, the economic loss rule “prohibits the purchaser of a defective product from using tort law to recover purely economic losses.” Bussian,
In the instant case, Plaintiffs have alleged damage to propérty other than the Rescue It! Products themselves — namely, damage to decks, porches and other tangible property or real property.
I. State Law Fraud-Based Claims (Counts X to XIX)
Counts X through XIX allege violations of the following state consumer protection, false advertising, and deceptive business practices statutes.
Count X: Washington Consumer Protection Act, Wash. Rev. Code § 19.86.010, et seq.
Count XI: North Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-1.1 eb seq.
Count XII: California Business & Professions Code, § 17200 et seq. Unfair Business Practices Act
Count XIII: California Business & Professions Code, § 175000, et seq. False Advertising Laws
Count XIV: California Business & Professions Code, § 1750 eb seq. Consumer Legal Remedies Act
Count XV: Massachusetts Consumer Protection Act, M.G.L. c. 93a §§ 2 and 9
Count XVI: Deceptive Acts and Practices, N.Y. Gen. Bus. Law § 349
Count XVII: False Advertising, N.Y. Gen. Bus. Law § 350 eb seq.
Count XVIII: Missouri Merchandising Practices Act, Mo. Stat. § 407.010 et seq.
Count XIX: Michigan Consumer Protection Act, Mich. Comp. Laws § 445.901 eb seq.
According to PPG, the Court should dismiss all these claims because they have not been pled with particularity under Fed. R. Civ. P. 9(B), Plaintiffs failed to plead essential elements of these claims, and because PPG’s numerous representations amount to nothing more than advertising puffery.
Taking the last matter first, the Court has previously rejected PPG’s “advertising puffery” arguments for the reasons explained, supra at 13-15. The Court held that the numerous representations PPG made on the Rescue It! Products’ labels alone constituted affirmations of fact or promises about the Products’ performance properties which described the goods, formed the basis of the bargain, and constituted express warranties. In other words, those representations were not mere advertising puffery.
The Court also denies PPG’s request to dismiss these state-law claims because Plaintiffs have failed to sufficiently allege fraudulent or deceptive conduct under Rule 9(b). Rule 9(b)’s purpose is to ensure fair notice to the defendant, not to test a claim’s factual allegations. Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass’n,
PPG is the “who.” The “what” are the numerous representations PPG made on the product labels regarding the Products’ performance properties. The “when” are the dates the individual Plaintiffs purchased their Rescue It! Products — which are, presumably, shortly before they ap
The Court also rejects PPG’s arguments that Plaintiffs have insufficiently alleged reliance on PPG’s alleged misrepresentations, PPG’s knowledge of those misrepresentations, and causation. The complaint alleges, and the Court presumes, that Plaintiffs read the many descriptions of the Products which PPG printed on the labels of the cans, and relied on those representations, before purchasing them. See also Bernick,
Accordingly, the Court denies the Motion to Dismiss these statutory claims.
IV.
Based on the foregoing, the Court GRANTS IN PART the Motion to Dismiss (Doc #: 26) as follows. The Court dismisses with prejudice the federal Declaratory Judgment Act claim alleged in Count II, the claim for breach of implied warranty of fitness for a particular purpose alleged in Counts VI and VII, and the claim for breach of the implied warranty of merchantability alleged in Count IV on behalf of Plaintiffs residing in the State of Washington. The Court dismisses without prejudice the claim for breach of the implied warranty of merchantability alleged in Count IV on behalf of Plaintiffs residing in the States of California, Ohio and New York.
The Motion to Dismiss is DENIED as to all other claims.
IT IS SO ORDERED.
Notes
.The following indicates Plaintiffs’ home states: Matthew Traxler (Ohio), Angie Banyas (Pennsylvania), Alex Kinsfather (Washington), Chris Morrison (North Carolina), Diana Judd (California), Nancy Kress (Massachusetts), Richard Conway (New York), David Naeger (Missouri), and Sandra Howard (Michigan). (See First Amended Complaint ("FAC”) ¶¶ 7-15.)
. The only named plaintiff who is not alleged to have purchased her Rescue It! Product at Lowe's is Sandra Howard (Michigan).
. Plaintiffs purport to bring this action on behalf of a Nationwide Class or, in the alternative, on behalf of State Subclasses. As no class has as yet been certified, the Court will analyze the pending motion as though a subclass of states has been certified.
. See also Cal Com. Code § 2719(3); Mass. Gen. Laws ch. 106, § 2-719(3); Mich. Comp. Laws § 440.2719(3); Mo. Rev. Stat. § 400.2-719(3); N.Y. U.C.C. Law § 2-719(3); N.C. Gen. Stat. § 25-2-719(3); 13 Pa. Cons. Stat. § 2719(c); Wash. Rev. Code § 62A.2-719(3).
. See also id.
. Cal Com. Code § 2715; Mass. Gen. Laws ch. 106, § 2-715; Mich. Comp. Laws § 440.2715; Mo. Rev. Stat. § 400.2-715; N.Y.U.C.C. Law § 2-715; N.C. Gen. Stat. § 25-2-715; 13 Pa. Cons. Stat. § 2715; Wash. Rev. Code § 62A.2-715.
. See also Demorato v. Carver Boat Corp.,
. See also Viking Yacht Co., Inc. v. Composite One LLC,
. See also Cal Com. Code § 2719 cmt.1; Mass. Gen. Laws ch. 106, § 2-719 cmt. 1; Mich. Comp. Laws § 440.2719 cmt. 1; Mo. Rev. Stat. § 400.2-719 cmt. 1; N.Y. U.C.C. Law § 2-719 cmt. 1; N.C. Gen. Stat. § 25-2-719 cmt. 1; 13 Pa. Cons. Stat. § 2719 cmt. 1; Wash. Rev. Code § 62A.2-719 cmt. 1.
. See also id.
. See Ohio Rev. Code § 1302.93(C); Cal. Com. Code § 2719(3); Mass. Gen. Laws ch. 106, § 2-719(3); Mich. Comp. Laws § 440.2719(3); Mo. Rev. Stat. § 400.2-719(3); N.Y. U.C.C. Law § 2-719(3); N.C. Gen. Stat. § 25-2-719(3); 13 Pa. Cons. Stat. § 2719(c); Wash. Rev. Code § 62A.2-7190).
. Ohio Rev. Code § 1302.93(A)(1); Cal. Com. Code § 2719(1)(a); Mass. Gen. Laws ch. 106, § 2-719(1)(a); Mich. Comp. Laws § 440.2719(1)(a); Mo. Rev. Stat. § 400.2-719(1)(a); N.Y. U.C.C. Law § 2-719(1)(a); N.C. Gen. Stat. § 25-2-719(1)(a); 13 Pa. Cons. Stat. § 2719(c); Wash. Rev. Code § 62A.2-719(1)(a).
. The Court notes that the website-warranty does not exclude consequential or any other damages. This factor may well play into the Court’s eventual analysis regarding deceptive business practices and fraudulent advertising.
. See also Cal Com. Code § 2313; Mass. Gen. Laws 106, § 2-313; Mich. Comp. Laws § 440.2313; Mo. Rev. Stat. § 400.2-313; N.Y. U.C.C. Law § 400.2-313; N.C. Gen. Stat. §25-2-313; 13 Pa. C.S.A. § 2313; Wash. Rev. Code § 62A.2-313.
.See also id.
. See also id.
. Defendant does not dispute that Plaintiffs residing in Massachusetts, Michigan, and Missouri may bring merchantability claims against Defendant, which survive the Motion to Dismiss.
. Initially, Plaintiffs claimed that privity was required in New York in their Complaint (Compl. ¶ 172). However, in their Memorandum in Opposition, Plaintiffs now claim that New York does not require privity (Mem. in Opp. at 15). The case Plaintiffs cite to support this contention is unpersuasive. In Heller v. U.S. Suzuki Motor Corp.,
. California does recognize an exception to the privity requirement in regard to foodstuffs. See Tapia v. Davol, No. 15CV179-GPC(JLB),
. New York has recognized an exception to the privily requirement in the case of personal injuries. See Hole v. Gen. Motors Corp.,
. Similar to other states, North Carolina has legislatively recognized an exception to the privity requirement for cases involving personal injuries. See N.C. Gen. Stat. § 99B-2(b); AT&T Corp. v. Medical Review of N.C., Inc.,
. The third-party beneficiary exception that Washington recognizes is discussed infra Part(b)(v).
. Contrary to Defendant’s suggestions, In re Toyota also held that the party need not be specifically named as the beneficiary of the contract. In re Toyota,
. In Ohio, where a party retains money or a benefit that in equity or justice belongs to another, he will be liable for unjust enrichment. Savett,
. It appears Plaintiffs target as deceptive O.R.C. 1345.02(B)(2): "[t]hat the subject of a consumer transaction is of a particular standard, quality, grade, style, prescription, or model, if it is not.”
. Blake v. Interneuron Pharmaceuticals, No, C-1-98-672,
. Huffman v. Electrolux North America, Inc.,
. The Court notes in passing that Defendants’ reliance on Gregory has little persuasive effect.