McKinney v. Corsair Gaming, Inc.

Filing 36

Order by Judge Charles R. Breyer granting in part and denying in part 27 Motion to Dismiss.(crblc2, COURT STAFF) (Filed on 7/19/2022)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7
8
9

ANTONIO MCKINNEY, and CLINT
SUNDEEN, each individually and on
behalf of all others similarly situated,

10

Plaintiffs,
v.

United States District Court
Northern District of California

11
12

Case No. 22-cv-00312-CRB
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION TO DISMISS

CORSAIR GAMING, INC.,
Defendant.

13
14

Plaintiffs Antonio McKinney and Clint Sundeen allege that Defendant Corsair

15

Gaming, Inc.’s (“Corsair”) packaging of and advertisements for its computer memory

16

cards contain deceptive and misleading statements, in violation of the common law and the

17

consumer protection laws of California and 43 other states. FAC ¶¶ 76-140. Before the

18

Court is Corsair’s Motion to Dismiss the First Amended Complaint (“MTD”) (dkt. 27).

19

The Court GRANTS the motion to dismiss as to (1) claims based on advertisements, (2)

20

omissions claims, (3) equitable claims, (4) negligent misrepresentation claims, and (5)

21

class claims with respect to products they did not purchase. The Court DENIES the

22

motion as to (1) misrepresentation claims based on statements on the packaging, (2) breach

23

of express warranty claims, and (3) class claims brought under the laws of other states.

24

I.

BACKGROUND

25

A.

26

Plaintiffs McKinney and Sundeen are citizens of California who purchased Corsair

The Parties

27

memory products. FAC ¶¶ 6-7, 56, 59. Plaintiffs bring this putative class action on behalf

28

of themselves and all consumers who purchased Corsair’s high-speed memory products in

1
2

United States District Court
Northern District of California

3

the United States. FAC ¶ 5.
Defendant Corsair is a company headquartered in California and incorporated in
Delaware, and it sells “premium, high-speed computer memory.” FAC ¶¶ 1, 9.

4

B.

5

Plaintiffs allege the following. Corsair’s “flagship” products are its high-speed

The First Amended Complaint

6

computer memory sticks. FAC ¶ 14. These memory sticks function when they are

7

plugged into the memory slots of a PC. Id. In its advertisements and on its packaging,

8

Corsair lists a speed rating that signifies “how fast the memory can transfer data,”

9

measured in Megahertz (MHz). Id. ¶ 15. The higher the number of MHz, the faster the

10

memory (and the PC) performs. Id. Corsair markets these memory sticks to computer

11

gamers who want to improve game performance, and sells the products in physical stores,

12

through online vendors, and on its website. Id. ¶¶ 13, 19. Both Plaintiffs bought Corsair

13

products that displayed a speed of 3200 MHz on the packaging. FAC ¶¶ 56-59. Plaintiffs

14

also intend to represent a nationwide class of consumers who purchased Corsair memory

15

products with other speeds advertised on the packaging. FAC ¶¶ 29, 62.

16

Nothing on the packaging or inside the packaging qualifies the listed speed. Id.

17

¶ 18. Corsair advertises the MHz listing on its physical product packaging, and its online

18

advertisements also make claims highlighting the speed and reliability of its memory

19

products. Id. ¶¶ 19, 23. Plaintiffs include sample advertisements for Corsair memory

20

products and allege that Corsair made specific statements in these online ads. Id. ¶¶ 20-23.

21

In their complaint, Plaintiffs seem to state two different theories for their claims: an

22
23
24

“out-of-the-box” theory and a “substantial risk” theory.
1.

Out-of-the-Box Theory

Plaintiffs allege that the representations of a specific speed indicate to reasonable

25

consumers that the memory will run at the stated speed out of the box, i.e., after being

26

plugged into a computer without additional action by the consumer. Id. ¶¶ 24-25. This

27

makes sense because, when consumers buy a new computer, the memory comes

28

preinstalled and runs at the promised speed. Id. ¶ 27. Further, when aftermarket memory
2

1

(which is bought to add to or replace an existing PC’s memory) is advertised to run at

2

“common, standard speeds,” it runs at the stated speed reliably and out of the box. Id.
But Plaintiffs allege that Corsair’s 3200 MHz memory sticks do not operate at the

3
4

advertised speed out of the box. Id. ¶¶ 25, 29-30. They allege that the memory runs at

5

only 2133 MHz—the standard operating speed for PC memory—and it may never achieve

6

the advertised speed depending on the computer platform. Id. ¶¶ 27, 29-32.1

United States District Court
Northern District of California

7

2.

Substantial Risk Theory

8

Plaintiffs’ second theory is that, when consumers optimize their system to run the

9

memory, there is a substantial risk that the memory still does not work reliably. Corsair

10

advertises that the memory products are “‘optimized’ for overclocking on the latest Intel

11

and AMD motherboards.” Id. ¶ 23. “Overclocking” refers to running computer

12

components (like memory) at higher than standard speeds. Id. Overclocking requires

13

adjusting a computer’s Basic Input/Output System (BIOS) or Unified Extensible Firmware

14

Interface (UEFI) settings, which on many computers are accessible only by “restarting the

15

computer and repeatedly pressing a designated keyboard button . . . during a brief window

16

of time after the computer turns on.” Id. ¶¶ 33, 34.
But Plaintiffs allege that the process of “overclocking” is not reliable. Id. ¶¶ 32-33.

17
18

There is a “substantial risk that the user’s particular combination of other computer

19

components . . . simply cannot support overclocking at the advertised speed.” Id. ¶ 42. A

20

blog post on Corsair’s website authored by a Corsair employee admits that the ability to

21

achieve high speeds through the process of overclocking is a “lottery.” Id. ¶ 32.

22

Additionally, overclocking “poses material risks to the functionality of the computer

23

system, as well as to the memory sticks themselves.” Id. ¶ 39. If the combination of

24

components in a particular PC does not support running at high speeds, “the memory will

25

not run at the advertised speed or it will run unstably (causing software glitches or system

26
27
28

1

However, consumers do not necessarily observe that the computer is not running at the
high speed promised by Corsair. Compl. ¶¶ 30, 33. For example, Sundeen did not know
to take any action (such as overclocking) to speed up the memory, so his computer ran at
the standard speed for years after he plugged in his Corsair memory stick. Id. ¶ 60.
3

1

crashes).” Id. ¶ 42. This is because “memory interacts with other components in complex

2

ways and overclocking is sensitive to this.” Id.

3

McKinney altered his BIOS settings soon after plugging in the Corsair memory

4

stick. Id. ¶ 57. However, it still did not run stably at the advertised speed. Id. When

5

Sundeen discovered that he needed to adjust his BIOS to achieve the advertised speed and

6

attempted to do so, his computer crashed. Id. ¶ 60.

7

3.

Plaintiffs allege that they were injured by Corsair’s false statements and material

8

United States District Court
Northern District of California

9

Plaintiffs’ Claims

omissions on its packaging and in advertisements. Id. ¶¶ 49-54. They allege that they

10

would not have bought (or would not have paid the same price for) the product had they

11

known that it did not run reliably at the stated speed. Id. ¶¶ 57, 60. Further, Plaintiffs

12

allege that Corsair knows “the truth” that overclocking is unreliable, and “knows that the

13

statements on its packaging and ads are false and misleading to reasonable consumers.”

14

Id. ¶ 55. Plaintiffs also allege that “Corsair intends that consumers will rely on these false

15

and misleading statements when purchasing High-Speed Memory.” Id.
Plaintiffs assert claims based on (1) the State Consumer Protection Acts of 44

16
17

separate states (including California); (2) California’s Unfair Competition Law (“UCL”),

18

Cal. Bus. & Prof. Code § 17200, et seq.; (3) California’s False Advertising Laws (“FAL”),

19

Cal. Bus. & Prof. Code § 17500, et seq.; (4) Consumer Legal Remedies Act (“CLRA”),

20

Cal. Civ. Code § 1750, et seq.; (5) breach of express warranty; and (6) negligent

21

misrepresentation. Id. ¶¶ 76-140. Corsair moves to dismiss and requests judicial notice of

22

six exhibits. See MTD; RJN (dkt. 27-1 through 27-8).

23

II.

24

LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a complaint

25

for failure to state a claim upon which relief may be granted. Dismissal may be based on

26

either “the lack of a cognizable legal theory or the absence of sufficient facts alleged under

27

a cognizable legal theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th

28

Cir. 2019) (cleaned up). A complaint must plead “sufficient factual matter, accepted as
4

United States District Court
Northern District of California

1

true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,

2

678 (2009) (cleaned up). A claim is plausible “when the plaintiff pleads factual content

3

that allows the court to draw the reasonable inference that the defendant is liable for the

4

misconduct alleged.” Id. When evaluating a motion to dismiss, the court “must presume

5

all factual allegations of the complaint to be true and draw all reasonable inferences in

6

favor of the nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.

7

1987). “Courts must consider the complaint in its entirety, as well as other sources courts

8

ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular,

9

documents incorporated into the complaint by reference, and matters of which a court may

10

take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

11

(2007).
Claims for fraud must meet the pleading standard of Federal Rule of Civil

12
13

Procedure 9(b), which requires a party “alleging fraud or mistake [to] state with

14

particularity the circumstances constituting fraud or mistake.” Rule 9(b) “requires . . . an

15

account of the time, place, and specific content of the false representations as well as the

16

identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756,

17

764 (9th Cir. 2007) (cleaned up). “This means that averments of fraud must be

18

accompanied by the who, what, when, where, and how of the misconduct charged.” In re

19

Google Assistant Priv. Litig., 546 F. Supp. 3d 945, 955 (N.D. Cal. 2021) (internal

20

quotations omitted).
If a court dismisses a complaint for failure to state a claim, it should “freely give

21
22

leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has

23

discretion to deny leave to amend due to “undue delay, bad faith or dilatory motive on the

24

part of the movant, repeated failure to cure deficiencies by amendment previously allowed,

25

undue prejudice to the opposing party by virtue of allowance of the amendment, [and]

26

futility of amendment.” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir.

27

2008).

28
5

1
2

III.

DISCUSSION
The Court will first address Corsair’s request for judicial notice. Then, the Court

will address Corsair’s arguments in the following order with respect to its motion to

3
dismiss: (1) applicability of Rule 9(b); (2) challenges to the misrepresentation claims; (3)
4
challenges to the omissions claims; (4) challenges to claims for equitable relief; and (5)
5

applicability of the economic loss rule. Finally, the Court will address Corsair’s argument

6
that Plaintiffs lack standing to assert class claims under the laws of other states and to
7
assert class claims as to products other than the 3200 MHz memory card they bought.
8
9

A.

Request for Judicial Notice

Corsair requests that the Court take judicial notice of six exhibits containing copies
10
of online webpages. RJN at 2-3; Lynch Decl. (dkt. 27-2) at 2-4, Exs. A-F. Plaintiffs do
11
United States District Court
Northern District of California

not oppose.
12
13
14
15
16
17
18
19

Exhibits A and B are copies of the product page for the “DOMINATOR
PLATINUM RGB” with the “TECH SPECS” and “OVERVIEW” tabs selected,
respectively. Lynch Decl. ¶¶ 2-3. Exhibit C is a copy of a the “Help Page” on Corsair’s
website pertaining to “Memory” help. Id. ¶ 4. Exhibit D is a copy of the “FIND BY
COMPATIBILITY” page on Corsair’s website, as well as pages generated by making
selections in various fields on that webpage. Id. ¶ 5. Exhibit E is a copy of the “Intel
Extreme Memory Profile (Intel XMP)” page on Intel’s website. Id. ¶ 6. Exhibit F is a
copy of the “Computer Memory Finder” page on Newegg’s website, as well as pages

20
generated by making selections in various fields on that webpage. Id. ¶ 7.
21
22
23
24

Courts may take judicial notice of facts that are “not subject to reasonable dispute”
because they (1) are “generally known within the trial court’s territorial jurisdiction,” or
(2) “can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b). Matters of public record may be

25
judicially noticed, but disputed facts contained in those records may not. Khoja v.
26
Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018). Courts may also consider
27
material under the incorporation-by-reference doctrine. Eidmann v. Walgreens Co., 522
28
6

1

F.Supp.3d 634, 641 (N.D. Cal. 2021). A document may be incorporated by reference if

2

“(1) the complaint refers to the document; (2) the document is central to plaintiff’s claim;

3

and (3) no party questions the authenticity of the document.” Id. (quoting U.S. v.

4

Corinthian Colls., 655 F.3d 984, 999 (9th Cir. 2011)).

5
6

a source of Corsair’s deceptive advertising. FAC ¶¶ 22-24. Plaintiffs also cite to

7

information on Intel’s website about Intel’s XMP setting and warranty in explaining the

8

risks of overclocking. Id. ¶¶ 38-40. Thus, the complaint necessarily relies on the

9

webpages, they are central to Plaintiffs’ claims, and there is no dispute as to their

10

authenticity. As such, the Court incorporates Exhibits A, B, and E by reference.

11
United States District Court
Northern District of California

Here, Plaintiffs explicitly cite to the product webpage copied in Exhibits A and B as

The three remaining exhibits (Exs. C, D, and F) are publicly accessible webpages

12

on Corsair’s website (Exs. C and D) and Newegg’s website (Ex. F). RJN at 5. Corsair

13

asks that these exhibits should be considered for the fact of their publication, and not their

14

contents. Id. Plaintiffs do not dispute the authenticity of these webpages and do not

15

oppose. Thus, the Court also grants Corsair’s request with respect to these exhibits.

16

B.

17

Corsair moves to dismiss Plaintiffs’ claims on the grounds that Plaintiffs: (1) fail to

Motion to Dismiss

18

comply with Rule 9(b), (2) fail to plausibly allege their misrepresentation claims, (3) fail to

19

plausibly allege their omission claims, (4) cannot ask for equitable relief in addition to

20

remedies at law, and (5) cannot recover in tort for purely economic losses.

21

1.

Rule 9(b)

22

Under Rule 9(b), claims “sounding in fraud” or alleging “circumstances constituting

23

fraud” must be pleaded with “heightened particularity.” Fed. R. Civ. P. 9(b); Vess v. Ciba-

24

Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir. 2003). The heightened standard

25

requires a plaintiff to set forth the “who, what, when, where and how” of the claim.

26

Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). Pleadings must “be specific enough

27

to give defendants notice of the particular misconduct . . . so that they can defend against

28

the charge and not just deny that they have done anything wrong.” Vess, 317 F.3d at 1106.
7

1

If claims under the UCL, FAL, and CLRA specifically allege fraud, or allege facts

2

that constitute fraud—even if the word fraud is not used—the claims are subject to the

3

heightened standard. See id. at 1103, 1106; Kearns v. Ford Motor Co., 567 F.3d 1120,

4

1125 (9th Cir. 2009) (“[W]e have specifically held that Rule 9(b)’s heightened pleading

5

standards apply to claims for violations of the CLRA and UCL.”). The elements of fraud

6

in California are: “(a) misrepresentation (false representation, concealment, or

7

nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e. to induce

8

reliance; (d) justifiable reliance; and (e) resulting damage.” Kearns, 567 F.3d at 1126

9

(citations and emphasis omitted).

10

United States District Court
Northern District of California

11
12
13

a.

Applicability

Corsair argues that all of Plaintiffs’ claims “sound in fraud,” and as such they are
subject to Rule 9(b)’s heightened pleading standards for fraud claims. MTD at 5-6.
The Court agrees that most of Plaintiffs’ claims sound in fraud and are subject to

14

Rule 9(b). Plaintiffs allege that Corsair’s packaging and ads fail to disclose that the

15

advertised speed is not the default speed, and that to achieve the advertised speed requires

16

altering computer firmware. FAC ¶¶ 50-52. Plaintiffs further allege that Corsair knows

17

“what its packaging and ads say (and omit),” and that Corsair intends for consumers to rely

18

on its packaging and advertisements. Id. ¶ 55. Plaintiffs also allege that consumers

19

reasonably rely on the advertised speeds, and that their reliance causes them economic

20

harm. Id. ¶¶ 25-28, 56-61. These allegations state all of the elements of common law

21

fraud, and Plaintiffs expressly incorporate these allegations into to every claim. MTD at 3;

22

FAC ¶¶ 76, 85, 98, 107, 124, 132. Plaintiffs emphasize that they assert non-fraud claims

23

in the alternative. Opp. at 8; see FAC ¶¶ 102, 117, 136. Each claim contains alternative

24

language that Corsair “‘should have known through the exercise of reasonable care’ that its

25

statements were deceptive,” and thus they do not “rely entirely” on fraudulent conduct for

26

their claims. Id.

27
28

Notwithstanding the alternative language, the Court concludes that, if allegations of
fraud were stripped from the FAC, there would be little left of the UCL, FAL, and CLRA
8

1

claims. MTD at 5. Plaintiffs allege that Corsair knew that it was a “lottery” as to whether

2

their products would ever achieve the advertised speed, relying on a blog post written by a

3

Corsair employee. FAC ¶¶ 32, 52. Plaintiffs further allege that Corsair’s own marketing

4

reflects that speed is a “primary factor” for consumers in determining price and purchase

5

decisions. Id. ¶ 53. To take away these allegations would leave little basis for the focus of

6

the claim: that Corsair charges a price premium for high-speed memory even though it

7

knows the memory cannot achieve that speed. See id. ¶ 54.
Still, Plaintiffs adequately plead in the alternative with respect to their negligent

8

United States District Court
Northern District of California

9

representation claim. Stripping the averments of fraud leaves allegations that Corsair

10

should have known what reasonable consumers expect based on listed speeds on memory

11

products. These allegations satisfy Rule 8. Similarly, Plaintiffs’ breach of express

12

warranty claims are subject only to Rule 8, and they are also plausibly pleaded.2
Thus, the Court holds that Plaintiffs’ FAL, UCL, and CLRA claims must meet

13
14

heightened Rule 9(b) standards, but that the negligent misrepresentation claims and breach

15

of express warranty claims need only conform to Rule 8.

16

b.

Sufficiency under Rule 9(b)

17

“To properly plead fraud with particularity under Rule 9(b), ‘a pleading must

18

identify the who, what, when, where, and how of the misconduct charged, as well as what

19

is false or misleading about the purportedly fraudulent statement, and why it is false.’”

20

Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 964 (9th Cir. 2018).
Corsair contends that Plaintiffs fail to meet this heightened standard as to their

21
22
23
24
25
26
27
28

2

Corsair challenges the breach of warranty claim on one other basis, arguing that
Plaintiffs’ common law claims must be dismissed for failing to specify “which laws
apply,” citing In re Static Random Access Memory (SRAM) Antitrust Litigation, 580 F.
Supp. 2d 896, 910 (N.D. Cal. 2008). MTD at 16, n.15. In that case, the court dismissed
unjust enrichment class claims in part because the defendant showed that the unjust
enrichment law “varies widely from State to State.” In re SRAM Antitrust Litigation, 580
F. Supp. 2d at 910. As such, the court concluded that defendants could not have adequate
notice of the claims without further specification of which states’ laws the plaintiffs’ relied
upon. Id. Corsair has made no such showing that the law for negligent misrepresentation
and breach of express warranty varies widely between the states, and in the absence of
other authority, the Court declines to dismiss these claims.
9

United States District Court
Northern District of California

1

allegations regarding online advertising (as opposed to the statements on the packaging).

2

Id. Specifically, Corsair argues that Plaintiffs do not identify which online ads they

3

viewed, when they saw those ads, what products the ads featured, whether the ads

4

referenced overclocking, or whether the ads were on Corsair’s website or third-party sites.

5

MTD at 6. Plaintiffs allege that the statement they relied on was the “3200 MHz” speed

6

designation on the packaging and “in Corsair’s online ads.” Opp. at 5-6; FAC ¶¶ 56, 59.

7

Plaintiffs plead with particularity as to the statements on the packaging, but not as

8

to the online advertisements. As to the advertising, Plaintiffs fail to allege where exactly

9

they viewed Corsair’s purportedly deceptive advertisements, stating generally that they

10

relied on “Corsair’s online ads.” FAC ¶¶ 56, 59; Opp. at 5-6. And to the extent that

11

Plaintiffs saw and relied on third-party advertisements, they cannot state a claim against

12

Corsair because they fail to attribute those statements to Corsair. See Beyer v. Symantec

13

Corp., 333 F. Supp. 3d 966, 975 (N.D. Cal. 2018) (dismissing the claim because the

14

plaintiff did not allege that statements viewed on Best Buy’s website were attributable to

15

Symantec). Thus, absent an allegation that Plaintiffs specifically viewed ads on Corsair’s

16

website or that the ads Plaintiffs viewed on third-party websites are attributable to Corsair,3

17

Plaintiffs’ allegations about advertising are not sufficient to meet Rule 9(b).
As to the statements on the packaging, Plaintiffs allege their claims with

18
19

particularity. Plaintiffs sufficiently allege that they relied on the speed designation (what)

20

made by Corsair (who) contained on its packaging (where) in or around December 2018

21

and July 2019 (when). FAC ¶¶ 56-61. Corsair’s products failed to achieve the advertised

22

speeds. Id. ¶ 60. Plaintiffs allege that the speeds listed on the packaging are false or

23

misleading because reasonable consumers would believe that the listed speeds are

24

achievable out of the box and that the speeds may be achieved reliably across platforms.

25
26
27
28

3

In their Opposition, Plaintiffs attempt to retroactively attribute third-party advertisements
to Corsair by stating that the statements were made on third-party sites “with Corsair’s
permission.” Opp. at 5. This allegation appears nowhere in the FAC. Though Plaintiffs
do allege that the purportedly false statements appear on a product listing found in the
“Corsair Store” on Amazon, Plaintiffs still fall short of alleging with particularity that
Corsair is responsible for statements found on third-party sites. FAC ¶ 20.
10

1

Id. ¶ 25. Plaintiffs further allege that Corsair memory sticks do not achieve the advertised

2

speeds out of the box. Id. ¶ 29. Thus, Plaintiffs sufficiently allege what is false about the

3

statement and why it is false.
***

4

In sum, the Court holds that Plaintiffs must meet Rule 9(b) particularity with respect

5
6

to their FAL, UCL, and CLRA claims, and they fail to do so for their allegations about

7

Corsair’s advertisements. As such, the Court GRANTS the motion to dismiss with respect

8

to all claims based on allegations about advertisements.

9

2.

Corsair argues that Plaintiffs fail to plausibly allege that reasonable consumers

10

United States District Court
Northern District of California

Misrepresentation

11

would be deceived by the statements on Corsair’s packaging. See MTD at 2-3, 6-9, 10-

12

12.4 The Court disagrees.
In analyzing deceptive labeling claims under the UCL, FAL, and CLRA, courts

13
14

consider whether a “reasonable consumer” would likely be deceived. Williams v. Gerber

15

Prods. Co., 552 F.3d 934, 938 (citing Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir.

16

1995)). “[T]he reasonable consumer standard requires a probability ‘that a significant

17

portion of the general consuming public or targeted consumers, acting reasonably in the

18

circumstances, could be misled.’” Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1017

19

(9th Cir. 2020) (quoting Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016)). The

20

California Supreme Court has recognized “that these laws prohibit not only advertising

21

which is false, but also advertising which[,] although true, is either actually misleading or

22

which has a capacity, likelihood or tendency to deceive or confuse the public.” Williams,

23

552 F.3d at 938 (quoting Kasky v. Nike, Inc., 27 Cal. 4th 939, 450 (2002)) (internal

24
25
26
27
28

Corsair includes separate arguments as to the “out-of-the-box” and “substantial risk” theories.
However, in their Opposition, Plaintiffs do not really distinguish between these two theories. See
generally Opp. At least as currently alleged, the Court does not see a relevant distinction between
(1) the theory that Corsair misrepresented the speed that the memory can achieve out of the box;
and (2) the theory that Corsair misrepresented whether there is a substantial risk that the memory
can reliably and safely achieve that speed after overclocking. For this reason, the Court considers
these theories together.
4

11

1

United States District Court
Northern District of California

2

quotations omitted).
Generally, the question of whether a business practice is deceptive presents a

3

question of fact not suitable for resolution on a motion to dismiss. See id. However, the

4

court may in certain circumstances consider the viability of the alleged consumer law

5

claims based on its review of the product packaging. See Werbel v. Pepsico, Inc., 2010

6

WL 2673860, at *3 (N.D. Cal. July 2, 2010). “Thus, where a court can conclude as a

7

matter of law that members of the public are not likely to be deceived by the product

8

packaging, dismissal is appropriate.” Id. (citing Sugawara v. Pepsico, Inc., 2009 WL

9

1439115, at *3-4 (E.D. Cal. May 21, 2009)) (finding that the packaging for Cap’n Crunch

10

cereal and its use [of] the term “Crunch Berries” was not misleading); Videtto v. Kellogg

11

USA, 2009 WL 1439086, at *2 (E.D. Cal. May 21, 2009) (dismissing UCL, FAL and

12

CLRA claims based on allegations that consumers were misled into believing that “Froot

13

Loops” cereal contained “real, nutritious fruit”); McKinnis v. Kellogg USA, 2007 WL

14

4766060, at *3-4 (C.D. Cal. May 21, 2007) (same).

15

First, Corsair argues that reasonable consumers would not be misled by the 3200

16

MHz speed because the “reasonable consumer” test should ask what is reasonable to a

17

“targeted group” of consumers, rather than to the general public. Opp. at 7. Corsair cites

18

to Lavie v. Proctor & Gamble Co., 105 Cal. App. 4th 496, 512 (2003) for the proposition

19

that the reasonable consumer test can be adapted to a targeted group. MTD at 6-7. Corsair

20

argues that consumers of their high-end memory products are more sophisticated than

21

ordinary memory consumers and would not construe listed speeds as literal out-of-the-box

22

speeds. See id.; FAC ¶ 27.

23

But the question of whether Corsair’s “target audience . . . understood the

24

interactive nature of components and the importance of proper setup and compatibility” is

25

a factual one. MTD at 8-9. Lavie held that “[where a party] contends that a more

26

vulnerable [or more sophisticated] subgroup is the true target of . . . an advertisement, a

27

question of fact is presented.” 105 Cal. App. 4th at 494; see also Asis Internet Servs. v.

28

Subscriberbase Inc., 2010 WL 1267763 at *2 & n.2 (N.D. Cal. Apr. 1, 2010) (similar).
12

1

The inquiry into whether a targeted reasonable consumer standard should apply is not yet

2

appropriate for decision. At this time, the Court must evaluate Plaintiffs’ allegations from

3

the perspective of a reasonable consumer.

United States District Court
Northern District of California

4

Next, Corsair argues that Plaintiffs’ references to online comments do not show that

5

“significant numbers o[f] consumers, behaving reasonably, are likely to be deceived.”

6

MTD at 9. But the online comments are not the only bases upon which Plaintiffs allege

7

deception. Plaintiffs allege that a reasonable consumer would assume the listed speed is

8

the default, out-of-the-box speed because (1) it is the plain meaning of the listed speed; (2)

9

a preassembled computer that arrives running at the “stated speed” of the installed

10

memory; and (3) aftermarket standard-speed memory runs at the stated speed out of the

11

box. FAC ¶¶ 25-27. These allegations are all plausible.

12

Corsair also argues that other statements on its packaging put reasonable consumers

13

on notice about the need for overclocking and that the memory might not run consistently

14

across all systems. Corsair points out that the product’s packaging states “Intel® XMP

15

Certified,” a designation that Plaintiffs admit “requires altering the BIOS.” MTD at 8

16

(citing FAC ¶¶ 17, 21, 38). But a representation that signifies a product is “certified” to

17

operate with a certain configuration of settings does not necessarily defeat a reasonable

18

consumer’s belief that the product will operate at the stated speed out of the box. If a

19

typical consumer is unaware of the need to overclock at all, she is also likely unaware of

20

the meaning of “Intel® XMP Certified” as noted on packaging. Opp. at 11; see Anderson

21

v. Apple, 500 F. Supp. 3d 993, 1012 (N.D. Cal. 2020) (holding that Apple failed to support

22

its contention that reasonable consumers would understand that the language “Gigabit-

23

class LTE” versus “LTE Advanced” necessarily denoted a difference in cellular antenna

24

used and resulting cellular capabilities).

25

Finally, Corsair points to other statements as to specifications on its website and

26

advertisements that it contends put consumers on notice that functionality is not guaranteed

27

across systems or out of the box. MTD at 8. Plaintiffs argue in response that if statements

28

on the packaging are misleading, “the problem is not cured by a disclosure somewhere
13

1

other than” the packaging. See Elgindy v. AGA Serv. Co., 2021 WL 1176535 (N.D. Cal.

2

Mar. 29, 2021) (citing Williams, 552 F.3d at 940 (stating that reasonable consumers should

3

not “be expected to look beyond misleading representations on the front of the box to

4

discover the truth . . . in small print on the side”)). Additional information elsewhere

5

disclosing (1) the actual default speed, (2) requirements to overclock, and (3) system

6

compatibility requirements do not cure the alleged misrepresentation of the stated speed on

7

the packaging.

8

United States District Court
Northern District of California

9

Corsair interprets Plaintiffs’ “substantial risk” theory as a claim that the memory
products have a defect because they fail or cause instability. MTD at 3, 11. But Plaintiffs

10

insist that this misunderstands their theory: they seek relief based only on the basis of

11

misrepresentations, not a defect. Opp. at 13. That is, Plaintiffs’ substantial risk theory

12

seems to be that, even for consumers who do take the additional step of overclocking, there

13

is a “substantial risk” that the memory still does not run correctly and at the advertised

14

speed. While it remains somewhat unclear how this theory of liability is distinct from the

15

out-of-the-box theory, the Court concludes that it too is plausibly pleaded.

16
17
18
19

Accordingly, the Court DENIES Corsair’s motion to dismiss with respect to the
misrepresentation claims related to statements on the packaging.
3.

Omission

Corsair also argues that the omissions claims fail because Plaintiffs have not alleged

20

that Corsair had a duty to disclose any qualifying information. See MTD at 9-10, 12-13.

21

The Court agrees that the claims fail for this reason.

22

To plausibly allege a fraudulent omission, the omission must either (1) “be contrary

23

to a representation actually made by the defendant,” or (2) “an omission of a fact the

24

defendant was obliged to disclose.” Anderson, 500 F. Supp. 3d at 1012 (quoting Hodsdon

25

v. Mars, Inc., 891 F.3d 857, 861 (9th Cir. 2018)). The phrase “contrary to a representation

26

actually made by the defendant” is also known as a “partial omission.” See Anderson, 500

27

F. Supp. 3d at 1013. Thus, a duty to disclose may be “triggered” by affirmative

28

representations. See Hodsdon, 891 F.3d at 863 (quoting Rutledge v. Hewlett-Packard Co,
14

United States District Court
Northern District of California

1

238 Cal. App. 4th 1164, 1176 (2015)). The other type of omission implies a freestanding

2

obligation to disclose, regardless of whether the defendant makes any misleading

3

representation (a so-called “pure omissions” claim). See Anderson, 500 F. Supp. 3d at

4

1012. Plaintiffs allege one of each variety: (1) a partial omissions claim on the basis of

5

Corsair’s partial representations about the memory speed; and (2) a pure omissions claim

6

on the basis of Corsair’s exclusive knowledge of the facts that overclocking was necessary

7

for its product to operate correctly. FAC ¶¶ 82, 89, 101, 113, 138.

8

The law concerning a defendant’s duty to disclose in a fraudulent omissions case is

9

“marked by general disarray.” In re Toyota RAV4 Hybrid Fuel Tank Litig., 534 F. Supp.

10

3d 1067, 1101 (N.D. Cal. 2021). Under one approach, a defendant has a duty to disclose

11

when either (1) the defect at issue relates to an unreasonable safety hazard or (2) the defect

12

is material, “central to the product’s function,” and the plaintiff alleges one of the four

13

LiMandri factors. Id. at 1102. The LiMandri factors are as follows: (1) the defendant is in

14

a fiduciary relationship with the plaintiff; (2) the defendant had exclusive knowledge of

15

material facts not known to the plaintiff; (3) the defendant actively conceals a material fact

16

from the plaintiff; or (4) the defendant makes partial representations but also suppresses

17

some material facts. LiMandri v. Judkins, 52 Cal. App. 4th 326, 336 (1997). Under a

18

separate approach, a defendant has a duty to disclose when the plaintiff alleges either: (1)

19

the defect relates to an unreasonable safety hazard; (2) the defect is material and related to

20

the product’s central function; or (3) the presence of one of the four LiMandri factors. In

21

re Toyota, 534 F. Supp. 3d at 1102.

22

This Court recently decided on the first approach outlined (i.e., that in addition to

23

the LiMandri factors, a plaintiff must allege materiality and that the defect was central to

24

the product’s function). See Hammerling v. Google LLC, 2022 WL 2812188 (N.D. Cal.

25

July 18, 2022). First, it appears that the Ninth Circuit adopted the first approach in

26

Hodsdon v. Mars, Inc., 891 F.3d 857 (9th Cir. 2018). Id. at 863 (stating that the defendant

27

did not have a duty to disclose because the plaintiffs failed to plead “a crucial

28

element . . . that the defect must relate to the central functionality of the product”).
15

1

Second, post-Hodsdon, the Ninth Circuit and a majority of district courts have applied the

2

first approach. See, e.g., Sud v. Costco Wholesale Corp., 731 F. App'x 719, 720 (9th Cir.

3

2018); In re Apple Inc. Device Performance Litig., 386 F. Supp. 3d 1155, 1176 (N.D. Cal.

4

2019); Beyer v. Symantec Corp., 333 F. Supp. 3d 966, 979–80 (N.D. Cal. 2018);

5

Anderson, 500 F. Supp. 3d at 1014; Ahern v. Apple, 411 F. Supp. 3d 541, 567 (N.D. Cal.

6

2019).
Applying this approach, both omissions claims fail because Plaintiffs do not allege

United States District Court
Northern District of California

7
8

a defect that is central to the product’s function. Surprisingly, Plaintiffs’ concede that they

9

do not plead any defect at all.5 Opp. at 13. The Court therefore GRANTS the motion to

10

dismiss the omission claims.

11

4.

Equitable Claims

Corsair next argues that Plaintiffs’ claims for equitable relief under the CLRA,

12
13

UCL, and FAL should be dismissed because Sonner v. Premier Nutrition Corp., 971 F.3d

14

834, 844 (9th Cir. 2020) precludes courts from entertaining equitable claims when an

15

adequate legal remedy exists. MTD at 13-14. Plaintiffs argue that they have pleaded in

16

the alternative and that Sonner does not apply at the pleading stage. Opp. at 14-15.

17

In Sonner, the Ninth Circuit held that the plaintiff’s request for restitution under the

18

UCL and the CLRA should be dismissed because “the operative complaint [did] not allege

19

that [the plaintiff] lack[ed] an adequate legal remedy.” 971 F.3d at 844. The court further

20

explained that because the plaintiff “fail[ed] to explain how the same amount of money for

21

the exact same harm [was] inadequate or incomplete . . . [it] fail[ed] to establish that [it]

22

lack[ed] an adequate remedy at law,” making the dismissal of “[plaintiff’s] claims for

23

equitable restitution under the UCL and CLRA” appropriate. Id. Therefore, “[u]nder

24

Sonner, plaintiffs are required, at a minimum, to plead that they lack an adequate remedy

25

at law” before being awarded restitution under the UCL and CLRA. See Anderson v.

26
27
28

5

The Court notes that Plaintiffs might be able to properly allege a duty to disclose, if they
sufficiently allege that the omitted fact goes to a defect (that the memory does not achieve the
higher memory speed) and that this defect is material and central to the memory’s function.

16

1

Apple Inc., 500 F. Supp. 3d 993, 1009 (N.D. Cal. 2020).
Although Plaintiffs can pursue equitable claims in the alternative to legal remedies,

2
3

they are still required to explain how, or plead that, the legal remedies are inadequate.6

4

See Sonner, 971 F.3d at 844; Anderson, 500 F. Supp. 3d at 1009. Because Plaintiffs have

5

not pleaded that damages are inadequate, the Court GRANTS Corsair’s motion to dismiss

6

the request for equitable relief.

7

5.

Corsair further argues that Plaintiffs’ negligent misrepresentation claims should be

8

United States District Court
Northern District of California

9

Economic Loss Rule

dismissed because they are premised on Plaintiffs’ disappointed economic expectations

10

arising from sales transactions. MTD at 14. Plaintiffs respond that the economic loss rule

11

does not apply when “an independent duty arising from tort law is violated,” and that

12

“when a [d]efendant induces a plaintiff to enter into a contract by misrepresenting a

13

product, that ‘is a tort independent of the breach.’” Opp. at 15 (quoting Robinson

14

Helicopter Co., Inc. v. Dana Corp., 34 Cal. 4th 979, 990 (2004)). Corsair argues that the

15

Robinson Helicopter exception applies only where the fraud results in physical injury. See

16

Reply at 11 (dkt. 33).
Indeed, there does appear to be a split among district courts in the Ninth Circuit

17
18

about Robinson Helicopter’s application to claims where there is no physical injury. See

19

Broomfield v. Craft Brew All., Inc., No. 17-cv-01027, 2017 WL 3838453 at *9 (N.D. Cal.

20

Sept. 1, 2017) (discussing the split). As noted by Judge Hamilton, “[p]art of the confusion

21

stems from an unpublished Ninth Circuit opinion holding, without any discussion of the

22

case, that Robinson Helicopter permits economic losses for a negligent representation

23

claim.” Najarian Holdings LLC v. Corevest Am. Fin. Lender LLC, 2020 WL 3869195

24

(N.D. Cal. July 9, 2020) (citing Kalitta Air, LLC v. Cent. Texas Airborne Sys., Inc., 315

25

Fed. App’x 603, 607 (9th Cir. 2008)). In Kalitta Air, the Ninth Circuit held that

26
27
28

6

Sonner concerned claims for restitution, and did not examine whether the same principles
apply to injunctive relief. Courts examining Sonner have since held that Sonner applies to
claims for injunctive relief. See Zeiger v. WellPet LLC, 526 F. Supp. 3d 652, 686-87
(N.D. Cal. 2021).
17

United States District Court
Northern District of California

1

“California law classifies negligent misrepresentation as a species of fraud . . . for which

2

economic loss is recoverable.” 315 Fed. App’x at 603 (citation omitted). Courts are more

3

likely to apply the more expansive Kalitta Air exception to the economic loss rule when

4

negligent misrepresentation claims “sound[] more in deceit/fraud than negligence.” E.g.,

5

Bret Harte Union High Sch. Dist. v. Fieldturf, USA, Inc., 2016 WL 3519294 at *4-5 (E.D.

6

Cal. June 27, 2016) (citations omitted).

7

This Court has elsewhere endorsed the narrower interpretation of Robinson

8

Helicopter that would preclude Plaintiffs here from recovering tort damages for negligent

9

misrepresentation. In Kum v. Mercedez-Benz USA, LLC, 2021 WL 2682336 at n.4 (N.D.

10

Cal. June 30, 2021), this Court recognized that Robinson Helicopter’s “holding was

11

‘narrow in scope, and limited to a defendant’s affirmative misrepresentations on which a

12

plaintiff relies and which expose a plaintiff to liability for personal damages independent

13

of the plaintiff’s economic loss.’” Id. (quoting Robinson Helicopter, 34 Cal. 4th at 993)

14

(emphasis added). Under this reasoning, Plaintiffs are barred from recovery because they

15

do not allege personal injury or exposure to liability. Especially given the Court’s earlier

16

conclusion that Plaintiffs’ negligent misrepresentation claims do not sound in fraud (and

17

are subject only to Rule 8), the Court holds that the exception to the economic loss rule

18

does not apply here.
The Court therefore GRANTS Corsair’s motion to dismiss the negligent

19
20

misrepresentation claims.7

21

C.

22

Finally, Corsair argues that Plaintiffs’ class allegations should be partially stricken

23

because Plaintiffs lack standing to bring claims on behalf of a class. First, Corsair argues

Motion to Strike for Lack of Standing

24
25
26
27
28

Sundeen’s negligent misrepresentation claim also fails for an additional reason: it is barred by
the statute of limitations. Corsair cites to Ferguson v. JPMorgan Chase Bank, N.A., 2014 WL
2118527 at *6-7 (E.D. Cal. May 21, 2014), which held that negligent misrepresentation claims
“based in fraud” are subject to a three-year statute of limitations period, while those based on
failure to meet a standard of reasonable care are subject to a two-year limitations period. Given
that Sundeen alleges that he purchased his Corsair product in 2018, the statute of limitations
period is expired in either case. FAC ¶ 59. Plaintiffs do not respond to this argument.
7

18

1

that Mazza v. American Honda Motor Co., Inc., 666 F.3d 581, 587, 589-90 (9th Cir. 2012)

2

held that, because California’s consumer laws differ from those in other states, plaintiffs

3

cannot bring claims arising under the laws of states where the representative neither

4

resides nor suffered injury. Id. Second, Corsair argues that Plaintiffs lack standing to

5

assert claims involving products different from the 3200 MHz memory card they

6

themselves purchased. Id. at 16.

7

United States District Court
Northern District of California

8

1.

Other States’ Consumer Laws

First, Corsair argues that Plaintiffs cannot represent a class of out-of-state

9

consumers bringing claims under other states’ laws because those other laws do not apply

10

to Plaintiffs. See MTD at 15 (citing Mazza, 666 F.3d at 590-91). Plaintiffs counter with

11

two arguments: (a) this standing inquiry should be deferred until class certification, and (b)

12

even if deciding standing at this stage, Mazza does not excuse Corsair from making its

13

own showing that California law differs materially from other states’ consumer laws on the

14

facts of this case. Opp. at 16-18. While the Court may analyze the standing issue at the

15

pleading stage, it agrees with Plaintiffs that Corsair has not made a sufficient showing that

16

California law is materially different from other states’ laws on the facts of this case.

17

a.

Timing of Standing Analysis

18

Plaintiffs first argue that standing to bring claims on behalf of a nationwide putative

19

class is properly addressed at the class certification stage. Opp. at 16-17 (citing Melendres

20

v. Arpaio, 784 F.3d 1254, 1261 (9th Cir. 2015)). Corsair responds that many courts in this

21

district have not adopted Plaintiffs’ construction of Melendres. Reply at 12.

22

Judge Chen analyzed the issue of when to address standing in In re Chrysler-

23

Dodge-Jeep Ecodiesel Marketing, Sales Practices, and Products Liability Litigation, 295 F.

24

Supp. 3d 927, 956 (N.D. Cal. 2018). Judge Chen, like others in the District, concluded that

25

Melendres does not impose a “per se rule” requiring courts to defer standing analysis until

26

class certification. See id.; Jones v. Micron Tech. Inc., 400 F. Supp. 3d. 897, 909-10; Phan

27

v. Sargento Foods, Inc., 2021 WL 2224260 at *12-14 (N.D. Cal. June 2, 2021). He then

28

reasoned that “case management” concerns help determine whether it is appropriate to
19

United States District Court
Northern District of California

1

consider standing at the motion-to-dismiss or class certification stage. In re Chrysler-

2

Dodge-Jeep, 295 F. Supp. 3d at 954 (citing In re Carrier IQ, Inc., 78 F. Supp. 3d 1051,

3

1074 (N.D. Cal. 2015)). Principal among these concerns is the ratio of the “number of

4

consumers from . . . other states” in comparison to the number of named plaintiffs able to

5

bring claims under the laws of those states. Id. When the ratio is disproportionately

6

unbalanced, courts risk “subjecting [defendants] to the expense and burden of nationwide

7

discovery.” Id. Other post-Melendres opinions have also used this case management

8

metric to decide when to analyze standing. See Hindsman v. General Motors LLC, 2018

9

WL 2463113 at *15-16 (N.D. Cal. June 1, 2018); Corcoran v. CVS Health Corp., Inc.,

10

2016 WL 4080124 at *2 (N.D. Cal. July 29, 2016) (collecting cases); Kutza v. Williams-

11

Sonoma, Inc., 2018 WL 5886611 at *2-3 (N.D. Cal. Sept. 9, 2018).

12

The Court agrees that it retains discretion to address questions of standing at either

13

juncture. See Jones, 400 F. Supp. 3d at 910; In re Carrier IQ, Inc., 78 F. Supp. 3d at 1074.

14

Given that Plaintiffs here seek to represent class members with claims under the state laws

15

of 43 other states, while none of the named Plaintiffs have contacts with any of those

16

states, the Court will consider standing arguments at this stage.

17
18

b.

Standing Analysis Under Mazza

Corsair argues that Plaintiffs lack standing over the out-of-state claims because

19

Mazza held that, as a matter of law, “an actual conflict exists between California’s

20

consumer protection laws (including the UCL, FAL, and CLRA) and at least 43 other

21

states’ consumer protection laws.” Reply at 13 (quoting McFall v. Perrigo Co., 2021 WL

22

2327936 at *17 (N.D. Cal. Apr. 15, 2021)).

23

In Mazza, the Ninth Circuit reversed the district court’s decision to certify a

24

nationwide class of Acura car owners represented by Plaintiffs who brought claims under

25

the UCL, CLRA, and FAL. 666 F.3d at 585, 587. Honda argued that the district court

26

“erred by misapplying California’s choice of law rules and certifying a nationwide class

27

under California’s consumer protection . . . laws” because the California laws differed

28

from the laws of the 43 other jurisdictions in which class members resided. Id. at 589,
20

1

591. “To determine whether the interests of other states outweigh California’s interest,”

2

Mazza applied the “three-step governmental interest test” articulated by the California

3

Supreme Court in Washington Mutual Bank, FA v. Superior Court, 24 Cal. 4th 906, 921

4

(2001). Id. at 590. The first step involves determining “whether the relevant law of each

5

of the potentially affected jurisdictions with regard to the particular issue in question is the

6

same or different.” Id. Examining Honda’s detailed analysis of the other 43 states’ laws,

7

the court concluded that the differences between those laws and California’s consumer

8

laws were “not trivial or wholly immaterial.” Id. at 591. Under the governmental interest

9

test, out-of-state class claims had to be governed by the consumer protection laws of the

10

United States District Court
Northern District of California

11

jurisdiction where the transaction took place. Id. at 594.
The Court agrees with Plaintiffs that Mazza does not obviate the need for a choice-

12

of-law analysis specific to each case. Opp. at 18 (citing to Bruno v. Eckhart Corp., 280

13

F.R.D. 540, 547 (C.D. Cal. 2012)). In Bruno, as here, the Court was examining California

14

consumer protection claims brought under the UCL, FAL, and CLRA. 280 F.R.D. at 543.

15

Bruno reasoned that Mazza cannot “change the California Supreme Court’s express

16

holding that California’s choice-of-law analysis requires analyzing various states’ laws

17

‘under the circumstances of the particular case’ and given ‘the particular [legal] issue in

18

question.’” 280 F.R.D. at 547 (citing Kearney v. Salmon Smith Barney, 39 Cal. 4th 95,

19

107-08, 45 (2006) (emphasis added)). Bruno also noted that Mazza itself made clear that

20

“its holding was reached ‘[u]nder the facts and circumstances of this case.’” Id. (citing

21

various points in Mazza where the court expressly couched its reasoning as pertaining to

22

“this case”). Courts in this District have agreed. See In re iPhone 4S Consumer Litig.,

23

2013 WL 3829653 at *9 (N.D. Cal. July 23, 2013); Arroyo v. TP-Link USA Corp., 2015

24

WL 5698752 at *3 (N.D. Cal. Sept. 29, 2015) (holding that “the ruling in Mazza does not

25

erase the [d]efendants’ burden to prove that foreign jurisdiction should apply under the

26

‘governmental interest test’”).

27
28

Unlike in Mazza, Corsair has not provided a sufficient description of other state
laws to meet its burden of showing that Plaintiffs lack standing to bring claims under these
21

1

other states’ laws. Corsair has presented essentially one page of argument in its motion,

2

but it does not provide detail. MTD at 15-16. Corsair may argue this point at a later date.8

United States District Court
Northern District of California

3

2.

Products Not Bought

4

Finally, Corsair contends that Plaintiffs lack standing to bring class-wide suit on the

5

basis of memory products other than the 3200 MHz cards they purchased. MTD at 16-17.

6

Corsair insists that Plaintiffs do not have standing to “assert injury based on a defective

7

product or false advertising” if the Plaintiffs did not “experience[] injury stemming from

8

the purchase of that product.” MTD at 16 (citing Granfield v. NVIDIA Corp., 2012 WL

9

2847575 at *6 (N.D. Cal. July 11, 2012)); see also Carrea v. Dreyer’s Grand Ice Cream,

10

Inc., 2011 WL 159380 at *3 (N.D. Cal. Jan. 10, 2011) (dismissing claims when plaintiff

11

did not allege that he purchased other Dreyer’s products or “otherwise suffered any injury

12

or lost money or property with respect to those products”).
However, a named plaintiff’s injury from a product may also be “substantially

13
14

similar” to the injuries suffered by the class members. See Garnica v. HomeTeam Pest

15

Defense, Inc., 2015 WL 13066140 at *1-2 (N.D. Cal. Dec. 21, 2015); see also Garrison v.

16

Whole Foods Mkt. Grp., Inc., 2014 WL 2451290 at *4 (N.D. Cal. June 2, 2014). For

17

example, Garrison held that, because the packaging for different products contained the

18

same challenged label of “All Natural,” and because plaintiffs alleged that each label is

19

“false in the same way,” the “unpurchased products . . . do ‘not implicate a significantly

20

different set of concerns than’ those purchased by the named plaintiffs.” Garrison, 2014

21

WL 2451290 at *4. As such, “[b]y establishing that any of the labels were misleading, the

22

[p]laintiffs would necessarily establish that they all were.” Id.; see also Ivie v. Kraft Foods

23

Glob., Inc. 961 F. Supp. 2d 1033, 1046-47 (N.D. Cal. 2013) (holding that plaintiffs had

24

standing as to unpurchased products if claims for those products were “nearly identical to

25

the claims for the purchased product”).

26
27
28

8

Plaintiffs assert that they also bring claims on behalf of out-of-state class members under
California’s UCL, FAL, and CLRA directly. Opp. at n.17. They are incorrect. In their
FAC, they allege that “Plaintiffs bring [this claim] on behalf of themselves and members
of the California subclass. FAC ¶¶ 86, 99, 108.
22

Although Plaintiffs vaguely allege that the misrepresentations on different memory

United States District Court
Northern District of California

1
2

products are similar, they do not do so with enough specificity. They allege that “Corsair’s

3

packaging lists the speed (in MHz) on the front.” FAC ¶ 17. Plaintiffs also allege

4

generally that “Corsair’s packaging and ads promise specific high speeds and reliability,

5

and omit any warning about the risks and realities of overclocking.” Id. ¶ 48. And

6

Plaintiffs allege that with respect to the class, each putative member “[was] presented with

7

substantially similar misrepresentations and omissions by Corsair.” Id. ¶ 63. Yet these

8

allegations are conclusory. At a minimum, Plaintiffs must allege which other models ran

9

at lower speeds. Without doing so, it is implausible that plaintiffs could, “[b]y establishing

10

that any of the labels were misleading, . . . necessarily establish that they all were.”

11

Garrison, 2014 WL 2451290 at *5. Accordingly, the Court strikes the class claims to the

12

extent they refer to products that the Plaintiffs did not buy.

13

IV.

CONCLUSION

14

For the foregoing reasons, the Court GRANTS Corsair’s motion to dismiss as to the

15

claims based on online advertising, the omission claims, the request for equitable relief, the

16

negligent misrepresentation claims, and the class claims as to products not bought by

17

plaintiffs. The Court DENIES the motion as to the breach of warranty claims, the

18

misrepresentation claims based on statements on the packaging, and class claims brought

19

under the laws of other states.

20
21

The Court grants leave to amend all but the negligent misrepresentation claims.
Plaintiffs may file an amended complaint within 21 days of the date of this order.

22

IT IS SO ORDERED.

23

Dated: July 19, 2022
CHARLES R. BREYER
United States District Judge

24
25
26
27
28
23