Thelen v. HP Inc.

Filing 39

MEMORANDUM OPINION. Signed by Judge Christopher J. Burke on 9/26/2024. (smg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PHYLLIS CARSON; LORNE COSMAN;
WILLIAM DRAPER; PHILLIP
ERICKSON; TERENCE GRANER;
DONALD HARMAN; SARAH
HOUSEHOLDER; TRUDY L. GRANER;
TRUDY LETSON; SABINE MILLER;
DIANA HOBERT-POWELL; JANET
PURVIS; PATRICIA ROBERTS;
CAROLE SCHAUER; CARA
WASHINGTON; STEPHEN KAPLITT;
MICHAEL DOBKIN; CHERYL MEOLA;
DIANE DRAKE; CHRISTOPHER NIND;
ROSE CARINA; BRUCE WILLIAMS;
ANTHONY HARRIS; TIMUR
SAKHARUK; ROBERT DIMARTINO;
IAN PERRY; STEPHEN LUTHER;
GREGORY ORENSKI; RODNEY NASH;
and DEBORAH THELEN individually and
on behalf of all others similarly situated,
Plaintiffs,
v.
HP INC.,
Defendant.

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Civil Action No. 22-208-CJB

________________________________________________________________________
P. Bradford deLeeuw, DELEEUW LAW LLC, Wilmington, DE; Scott David Hirsch, SCOTT
HIRSCH LAW GROUP, PLLC, Coconut Creek, FL; Nicholas A. Migliaccio, Jason S. Rathod,
Mark D. Patronella, MIGLIACCIO & RATHOD LLP, Washington, D.C.; Dan E. Gustafson,
David A. Goodwin, Anthony J. Stauber, GUSTAFSON GLUEK PLLC, Minneapolis, MN;
Howard T. Longman, LONGMAN LAW, P.C., Livingston, NJ, Attorneys for Plaintiffs.
Kelly E. Farnan, RICHARDS, LAYTON & FINGER, PA, Wilmington, DE; Michael J. Stortz,
Marshall L. Baker, AKIN GUMP STRAUSS HAUER & FELD LLP, San Francisco, CA,
Attorneys for Defendant.
______________________________________________________________________________
MEMORANDUM OPINION
1

Dated: September 26, 2024
Wilmington, Delaware

BURKE, United States Magistrate Judge
The 30 individual named Plaintiffs in this case (“Plaintiffs”) bring this class action
lawsuit on behalf of themselves and a class of similarly situated persons; they allege that
Defendant, HP Inc. (“Defendant” or “HP”), misled consumers about the quality and functionality
of certain laptop models it produced. (See generally D.I. 19) Before the Court is a motion filed
by Defendant to dismiss Plaintiffs’ claims pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6) and to strike Plaintiffs’ class allegations pursuant to Federal Rule of Civil Procedure
12(f) (“Motion”). (D.I. 22) For the reasons that follow, the Court GRANTS-IN-PART and
DENIES-IN-PART Defendant’s Motion.
I.

BACKGROUND
A.

Procedural Background

On February 16, 2022, Plaintiff Deborah Thelen (“Thelen”), individually and on behalf
of all others similarly situated, filed a Class Action Complaint against Defendant. (D.I. 1)
Defendant, a Delaware corporation with its headquarters in Palo Alto, California, is one of the
world’s largest manufacturers and sellers of computers. (D.I. 19 at ¶ 69) Thelen, now joined by
a number of additional named Plaintiffs, later filed a First Amended Complaint (“FAC”) on May
23, 2022. (D.I. 11) And after Defendant filed a motion to dismiss and to strike the FAC, (D.I.
13), the current 30 named Plaintiffs filed the operative Second Amended Complaint (“SAC”) on
July 28, 2022. (D.I. 19) 1

1

Thelen and the other 29 additional named Plaintiffs bring the SAC on behalf of a
purported class and subclasses. These are described in paragraph 467 of the SAC as consisting
2

The SAC is massive, totaling 968 numbered paragraphs and 255 pages. (Id.) As might
be expected with that length, at times the SAC is confusing, or difficult to parse. The Court will
attempt to summarize the SAC’s allegations briefly below.
In the SAC, Plaintiffs list various counts beginning with “Count I” and ending with
“Count XLII,” which would suggest there are 42 Counts set out therein. (Id. at 145, 251) But
the SAC is missing a Count XX and a Count XXXVII, so it actually only alleges 40 Counts.
(Id.; D.I. 23 at 4 n.3) Also, Count XXXVIII is misnumbered as “Count XXXIII” (the Court will
herein refer to it as the former). (D.I. 23 at 4 n.3; see also D.I. 19 at 241)
As best as the Court can figure based on the briefing (though this is not always easy to
discern from the briefing), the parties have tended to break these 40 Counts down in the
following way:
•

There are 20 Counts that involve claims brought pursuant
to what Defendant refers to as state “‘consumer fraud’
statutes[,]” (D.I. 23 at 4), and what Plaintiffs refer to as
state “consumer protection” statutes, (D.I. 25 at 4). These
are as follows: New York General Business Law, N.Y. Gen.
Bus. Law §§ 349-50 (Counts I-II); Indiana Deceptive
Consumer Sales Act (“IDCSA”), Ind. Code §§ 24-5-0.5-1 to 12
(Count III); Florida Deceptive & Unfair Trade Practices Act,
Fla. Stat. §§ 501.201, et seq. (Count IV); Fla. Stat. § 817.41
Prohibiting Misleading Advertising (Count V); Alabama
Deceptive Trade Practices Act, Ala. Code §§ 8-19-1, et seq.
(Count VI); Missouri Merchandise Practices Act (“MMPA”),
Mo. Rev. Stat. §§ 407.010, et seq. (Count VII); Ohio Consumer

of a Nationwide Class, which is defined as “[a]ll purchasers in the United States who purchased
[one of the laptop models at issue from Defendant][,]” and 13 state subclasses, defined as “[a]ll
purchasers . . . who purchased [one of the laptop models at issue from Defendant]” from the
following states: (1) Alabama; (2) Arkansas; (3) California; (4) Florida; (5) Indiana; (6)
Massachusetts; (7) Michigan; (8) Missouri; (9) New Jersey; (10) New York; (11) Ohio; (12)
Oregon and (13) Washington. (D.I. 19 at ¶ 467) Georgia is not a defined subclass in paragraph
467, but elsewhere in the SAC, Plaintiffs bring claims under Georgia law and otherwise refer to
the “Georgia Subclass[.]” (See, e.g., D.I. 19 at 207-08; see also D.I. 23 at 4 n.4) And so herein,
the Court will refer to all 14 of these state subclasses together as the “State Subclasses.”
3

Sales Practices Act (“OCSPA”), Ohio Rev. Code Ann. §§
1345.01, et seq. (Count VIII); California Unfair Competition
Law (“CUCL”), Cal. Bus. & Prof. Code §§ 17200, et seq.
(Count IX); California Consumer Legal Remedies Act
(“CCLRA”), Cal. Civ. Code §§ 1750, et seq. (Count X);
California False Advertising Law (“CFAL”), Cal. Bus. & Prof.
Code §§ 17500, et seq. (Count XIII); Oregon Unlawful Trade
Practices Act (“OUTPA”), Or. Rev. Stat. §§ 646.605-656
(Count XIV); Michigan Consumer Protection Act, Mich.
Comp. Laws §§ 445.903, et seq. (Count XVI); New Jersey
Consumer Fraud Act, N.J. Stat. Ann. § 56:8 (Count XXI);
Georgia Fair Business Practices Act, Ga. Code Ann. §§ 10-1390, et seq. (Count XXV); Georgia Uniform Deceptive Trade
Practices Act, id. §§ 10-1-370, et seq. (Count XXVI);
Washington State Consumer Protection Act, Wash. Rev. Code
Ann. §§ 19.86.010, et seq. (Count XXVII); Arkansas
Deceptive Trade Practices Act, Ark. Code Ann. §§ 4-88-101, et
seq. (Count XXVIII); Massachusetts Consumer Protection Act,
Mass. Gen. Laws Ch. 93A, §§ 1, et seq. (Count XXIX); and a
“catch-all” claim for Violation of the Unfair Prong of Various
States’ Unfair and Deceptive Trade Practices Statutes (Count
XXXIX). 2 The Court will refer to these as the “statutory
consumer protection claims.”
•

There are 2 Counts that involve common law claims
relating to fraud. These are: Fraud by Concealment (Count
XVIII) and Fraudulent Omission or Concealment (Count
XXIV). 3 The Court will refer to these as the “common law
fraud” claims.

•

There are 3 Counts that involve statutory or common law
claims regarding breach of express warranty. The statutory
claims include: California Song-Beverly Consumer Warranty
Act, Cal. Civ. Code §§ 1790-95.8, et seq. (Count XII); and a
statutory claim for a violation of express warranty under
Massachusetts law, Mass. Gen. Laws at Ch. 106, § 2-313
(Count XXXI). The common law claim is: Breach of Express

2

Each of these statutory Counts are brought on the behalf of the respective subclass
that corresponds to the state statute at issue, with the exception of Count XXXIX, which claims
are brought by certain of the named Plaintiffs on behalf of their respective subclasses.
3

Count XVIII is brought on behalf of the Michigan Subclass and Count XXIV is
brought on behalf of the Nationwide Class and alternatively on behalf of the State Subclasses.
4

Warranty (Count XL). The Court will refer to these as the
“express warranty claims.” 4
•

There are 12 Counts that involve statutory or common law
claims regarding breach of implied warranty. The statutory
claims include: California Song-Beverly Consumer Warranty
Act, Cal. Civ. Code §§ 1792, et seq. (Count XI); a statutory
claim for breach of the implied warranty of merchantability
under Oregon law, Or. Rev. Stat. §§ 72.8020, et seq. (Count
XV); a statutory claim for breach of the implied warranty of
merchantability under Michigan law, Mich. Comp. Laws
§ 440.314 (Count XVII); a statutory claim for a violation of the
implied warranty of merchantability under Massachusetts law,
Mass. Gen. Laws Ch. 106, § 2-314 (Count XXX); a statutory
claim for breach of implied warranty under Arkansas law, Ark.
Code Ann. §§ 4-2-314, et seq. (Count XXXII); a statutory
claim for breach of implied warranty under Alabama law, Ala.
Code §§ 7-2-314, et seq. (Count XXXIII); a statutory claim for
breach of implied warranty under Florida law, Fla. Stat. Ann.
§§ 672.314, et seq. (Count XXXIV); a statutory claim for
breach of implied warranty under Georgia law, Ga. Code Ann.
§§ 11-2-314, et seq. (Count XXXV); and a statutory claim for
breach of implied warranty under Indiana law, Ind. Code
§§ 26-1-2-314, et seq. (Count XXXVI). 5 The common law
claims are: Breach of Implied Warranty of Merchantability
(Count XXII); 6 Implied Warranty in Tort (Count XXXVIII); 7
and Breach of Implied Warranty (Count XLI). 8 The Court will
refer to these as the “implied warranty” claims. (See D.I. 23 at
25 & n.25)

4

Each of these statutory Counts are brought on the behalf of the respective subclass
that corresponds to the state statute at issue, and the common law claim is brought on behalf of
the Nationwide Class and alternatively on behalf of the State Subclasses.
5

Each of these statutory Counts are brought on the behalf of the respective subclass
that corresponds to the state statute at issue.
6

Count XXII is brought on behalf of the New Jersey Subclass.

7

Count XXXVIII is brought on behalf of the Ohio Subclass.

8

Count XLI is brought on behalf of the Nationwide Class and alternatively on
behalf of the State Subclasses.
5

•

There are 2 common law unjust enrichment claims. They
are: Unjust Enrichment (Count XIX), 9 Unjust
Enrichment/Restitution (Count XXIII). 10 The Court will refer
to these as the “unjust enrichment” claims.

•

There is 1 common law Declaratory Relief claim. It is found
in Count XLII. 11 (See generally id.)

(See generally D.I. 19)
Defendant filed the instant Motion on September 1, 2022. (D.I. 22) Briefing on the
Motion was voluminous, in light of the complexity and sheer numerosity of the issues raised by
Defendants’ filing. (D.I. 20) That briefing was completed on October 27, 2022. (D.I. 26) 12 On
December 12, 2022, the parties consented to have the Court conduct all proceedings in the case,
including trial, the entry of final judgment and all post-trial proceedings. (D.I. 30) Thereafter,
both Plaintiffs and Defendant filed additional notices of supplemental authority; the last of these
was filed on March 24, 2023. (D.I. 32; D.I. 38) 13

9

Count XIX is brought on behalf of the Michigan Subclass.

10

Count XXIII is brought on behalf of the Nationwide Class and alternatively on
behalf of the State Subclasses.
11

Count XLII is brought on behalf of the Nationwide Class and alternatively on
behalf of the State Subclasses.
12

Plaintiffs requested oral argument on the Motion, (D.I. 28), but the Court will
DENY that request. The sheer number of issues at play with the Motion have required a
substantial amount of time to assess, and the Court does not wish to delay resolution of those
issues any further. The Court assures the parties that it has carefully considered every one of the
numerous arguments made in the extensive briefing, as will hopefully be evident below.
13

After Defendant filed its notice of supplemental authority, Plaintiffs filed a
motion for leave (“motion for leave”) seeking to submit a response to that authority, (D.I. 33);
Plaintiffs’ motion for leave, in turn, prompted the parties to file two additional briefs on the
subject, (D.I. 34; D.I. 35), which was regrettable. The Court DENIES as MOOT the motion for
leave because it has not found the case cited in Defendant’s notice to be necessary to reference in
its decision herein.
6

B.

Factual Background

Plaintiffs bring a consumer class action suit here, alleging that Defendant misled
consumers about the quality and functionality of its Envy Laptops (“Envy”), Envy 360 Laptops
(“Envy 360”), Pavilion Laptops (“Pavilion”), Pavilion 360 Laptops (“Pavilion 360”), and HP 14,
HP 15, and HP 17 Laptops (the “HP Laptops,” and together with the Envy, Envy 360, Pavilion
and Pavilion 360, the “Class Laptops”). (D.I. 19 at ¶ 1) The claims apply to those Class Laptops
purchased from 2017 to present (the “Class Period”). (Id.) Plaintiffs allege that during the Class
Period, Defendant designed, manufactured, marketed, sold and distributed the Class Laptops to
tens of thousands of consumers throughout the United States. (Id. at ¶ 2) Yet the SAC asserts
that the Class Laptops all possess a material defect preventing them from being used as
advertised, and that Defendant concealed, failed to disclose, or otherwise engaged in deceptive
marketing with respect to the defect. (Id. at ¶ 3)
The SAC provides additional information about the defect at issue. Plaintiffs allege that
during ordinary use, the Class Laptops’ hinges prematurely and unexpectedly crack and fail,
eventually breaking off from the plastic mounting points at the base of the device where the
keyboard and internal components are located (the “Hinge Defect”). (Id. at ¶¶ 4, 6) Plaintiffs
explain that the hinge is the item that provides a connection between the upper case of the laptop
(containing the monitor) and the base, and is the piece of equipment that allows the laptop to
open and close “like a clam shell” for ease of transport. (Id. at ¶ 5) As to Defendant’s laptops
that contain the Hinge Defect, the ordinary opening and closing of the device fractures its plastic
anchors (causing them to fail) and destabilizes the hinges (often causing them to detach from the
computer completely). (Id. at ¶ 6) This all renders the Class Laptops unable to be used as
Plaintiffs allege they were intended to be used—that is, as a portable computer that can easily

7

open and close (and in the case of the Envy 360 and Pavilion 360 models, as a computer that can
reconfigure to multiple angles and be used as a tablet or laptop). (Id.)
Plaintiffs allege that although Defendant has known of the Hinge Defect since 2014 (i.e.,
preceding the Class Period), it falsely marketed the HP Laptops in the interval in various ways.
Among these were that Defendant stated, inter alia, that Envy 360 and Pavilion 360 laptops were
“convertible” and that the HP Laptops were “reliable” and “designed for long-lasting
performance” with a “compact, portable design.” (Id. at ¶¶ 7-8, 17 (internal quotation marks and
citation omitted)) Further, Defendant provides assurances to consumers as to the HP Laptops’
durability and tells consumers that “extensive quality testing ensures that you can keep going . . .
and going.” (Id. at ¶ 9 (internal quotation marks and citation omitted)) Plaintiffs allege that
Defendant claims that each model of the Class Laptops has been subject to 115,000 hours of
testing, which includes opening and closing the laptops tens of thousands of times. (Id. at ¶¶ 10,
120) Further, Defendant represented that it subjected each model’s hinges to 25,000 cycles,
which is the equivalent of opening and closing a laptop 10 times a day for seven years. (Id. at ¶
10; see also id. at ¶ 118) Plaintiffs generally allege that they and the class members 14 saw or
heard such representations from Defendant about the Class Laptops prior to purchasing their
model. (Id. at ¶ 12)
The SAC asserts that the Hinge Defect dramatically reduces or eliminates the user’s
ability to open and close the laptop or to transition its configuration between those states. (Id. at
¶ 15) This, they allege, in turn renders the Class Laptops unfit for their intended purpose as
functioning, compact, portable, or flexible computers; it also ensures that the Class Laptops

14

Below, for ease of reference, the Court will at times refer to “Plaintiffs” and their
knowledge or belief of facts, even though the allegations are that both named Plaintiffs and the
class members had such knowledge/mental state.
8

cannot satisfy the representations Defendant made in its marketing materials to customers. (Id.
at ¶ 16)
Plaintiffs plead that there are thousands of complaints on Defendant’s online forum from
customers complaining of the Hinge Defect. (Id. at ¶ 17) Defendant has allegedly responded to
these complaints in various ways, such as by informing customers that a hardware assembly
issue was the cause of the hinge cracking and panel separation problems. (Id. at ¶ 20) However,
Defendant has been assertedly unable or unwilling to address the true scope and pervasive nature
of the Hinge Defect. (Id.)
The Class Laptops are covered by a limited warranty (the “Limited Warranty”) 15; the
Limited Warranty warrants that Defendant’s products are free of defects in material and/or
workmanship and that Defendant will repair a product, or if it is unable to repair a product, will
replace or refund the purchase. (Id. at ¶ 21) Plaintiffs allege that Defendant has been unable to
fix the Hinge Defect in the Class Laptops during the Limited Warranty period and refuses to
repair the Hinge Defect free of charge outside of the Limited Warranty period. (Id. at ¶ 22)
Further, Plaintiffs allege that Defendant’s repair methods were ineffective. (Id. at ¶ 24)
Defendant told consumers that the Hinge Defect could be remedied by purchasing and installing
replacement hinges, which did not correct the Hinge Defect. (Id.) When Defendant did accept a
laptop for repair, it often replaced the hinges with the same defective part. (Id.)

15

Defendant requests that the Court take judicial notice of the Limited Warranty,
(D.I. 24 & ex. A), and the Court will do so, as the document is properly a part of the record here
regarding Defendant’s Rule 12(b)(6) motion (and otherwise). That is because the Limited
Warranty is a document that is referenced in the SAC, (D.I. 19 at ¶¶ 21, 78 n.16, 81, 588, 621,
824, 950, 960), and that is integral to Plaintiffs’ claims therein (particularly those asserting
breach of express warranty). See In re Burlington Coat Factory Secs. Litig., 114 F.3d 1410,
1426 (3d Cir. 1997) (noting that in resolving a motion to dismiss, a district court may consider a
document integral to or explicitly relied on by the complaint); see also J Supor & Son Trucking
& Riggins Co., Inc. v. Kenworth Truck Co, 791 F. App’x 308, 310 n.2 (3d Cir. 2019).
9

According to Plaintiffs, because Defendant knew of the Hinge Defect in the Class
Laptops, its limitations on the warranties covering the Class Laptops are procedurally
unconscionable, as Plaintiffs had no other viable options for negotiating the terms of the Limited
Warranty. (Id. at ¶ 25) Further, while knowing of the Hinge Defect, Plaintiffs allege that
Defendant intentionally “manipulated” the Limited Warranty so that it “often expired before the
[Hinge Defect] materialized and the consumer became aware of it.” (Id. at ¶ 26) Plaintiffs also
assert that the limitations on the Limited Warranties are substantively unconscionable, because
Defendant knew (or was reckless in not knowing) that the Class Laptops were defective, and yet
it both failed to disclose these defects and made affirmative misrepresentations about the
products’ capabilities in the marketplace. (Id. at ¶¶ 27, 31) Plaintiffs allege that Defendant’s
knowledge is evident from, inter alia, the numerous complaints posted by consumers on
Defendant’s online forum and from Defendant’s engagement with Class Laptop owners who
complained of the Hinge Defect. (Id. at ¶ 32)
Plaintiffs claim that as a result of Defendant’s unlawful, unfair, fraudulent, misleading
and deceptive practices, Plaintiffs purchased the Class Laptops with the mistaken belief that they
were high quality products capable of normal use without incurring damage. (Id. at ¶ 33)
Plaintiffs allege that the facts regarding the Hinge Laptops are material to them and to any
reasonable consumer who was considering the purchase of a Class Laptop. (Id. at ¶ 34) If
Plaintiffs had known of the Hinge Defect prior to purchasing one of the Class Laptops, they
would have paid substantially less or purchased from another manufacturer. (Id. at ¶ 35) As a
result, Plaintiffs seek redress for Defendant’s breaches of warranties and violations of various
state laws. (Id. at ¶ 37)
II.

DISCUSSION

10

Defendant makes a tremendous number of varied challenges to Plaintiffs’ SAC via their
Motion. The Court will address them each below to the extent necessary to resolve the Motion
(or to otherwise provide guidance regarding future potential pleading disputes).
A.

Plaintiffs’ Claims for Injunctive Relief

The Court will first address Defendant’s argument that, to the extent Plaintiffs request
injunctive relief, such a request should be dismissed for lack of subject matter jurisdiction. (D.I.
23 at 27-28; see also D.I. 19 at 251, 253) Defendant asserts that this is so because Plaintiffs lack
standing to request injunctive relief. (D.I. 23 at 27-28)
Defendant’s argument proceeds as follows: (1) In seeking injunctive relief, Plaintiffs
need to be able to demonstrate that they are likely to suffer future injury from the challenged
conduct; (2) Plaintiffs cannot do that, because the future injury they reference in the SAC
involves injuries to class members who are unaware of any alleged defect in the Class Laptops
and who would go on to purchase a Class Laptop and be harmed; but (3) Plaintiffs themselves
will not suffer such injury, since they know of the alleged defects already. (D.I. 23 at 27-28
(citing D.I. 19 at ¶ 129)) And while the SAC alleges that certain Plaintiffs remain interested in
purchasing another Class Laptop and would consider doing so in the future if Defendant
corrected the problems at issue, Defendant argues that such alleged future injury is too
hypothetical to confer standing on Plaintiffs (and is also in conflict with Plaintiffs’ entire theory
of the case). (Id. at 28)
Article III’s constitutional standing requirement (that is, that there be an active case or
controversy between the parties), which is at issue here, is a threshold jurisdictional issue. Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The plaintiff bears the burden of persuasion to
show that it has standing. United Access Techs., LLC v. Verizon Internet Servs., Inc., C.A. No.

11

05-866-LPS, 2021 WL 1200650, at *5 (D. Del. Mar. 26, 2021). Rule 12(b)(1) authorizes
dismissal of a complaint if the plaintiff lacks standing to bring his claim. Id.; see also Ballentine
v. United States, 486 F.3d 806, 810 (3d Cir. 2007).
Article III standing has three requirements: (1) injury in fact; (2) a causal connection
between the injury and the challenged conduct; and (3) a likelihood that the injury will be
redressed by a favorable decision. Lujan, 504 U.S. at 560-61; see also Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 409 (2013). The dispute here is over the first issue, injury in fact. When
prospective injunctive relief is sought in the class action context, at least one named plaintiff
must be able to demonstrate that he or she is likely to suffer future injury from the defendant’s
conduct. McNair v. Synapse Grp. Inc., 672 F.3d 213, 223 (3d Cir. 2012); see also Twardzik v.
HP Inc., No. 1:21-cv-00396-SB, 2022 WL 606092, at *2 (D. Del. Jan. 25, 2022), aff’d No. 222650, 2023 WL 5770999 (3d Cir. Sept. 7, 2023). 16 That threat of future injury must be
sufficiently real and immediate, and past exposure to illegal conduct does not itself show a
present case or controversy regarding injunctive relief if unaccompanied by any continuing,
present adverse effects. McNair, 672 F.3d at 223.
In Twardzik v. HP Inc., No. 1:21-cv-00396-SB, 2022 WL 606092 (D. Del. Jan. 25, 2022),
aff’d No. 22-2650, 2023 WL 5770999 (3d Cir. Sept. 7, 2023), a case cited by Defendant in its
briefing, (D.I. 23 at 27-28), the plaintiff sought damages and injunctive relief on behalf of
himself and a proposed class against the defendant, HP; the plaintiff argued that the computer he
purchased from the defendant did not do what he expected it to do. 2022 WL 606092, at *1-2.

16

A Rule 12(b)(1) motion on standing grounds can challenge jurisdiction on either a
facial (based on the legal sufficiency of the claim) or factual (based on the sufficiency of
jurisdictional fact) basis. Const. Party of Pa. v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). The
Court will treat the instant challenge as a facial one, though the difference is immaterial for
purposes of the Court’s resolution of this issue.
12

The Twardzik Court found that the plaintiff had sufficiently shown injury in fact, such that he
had standing to seek damages for this past injury. Id. at *2. However, it concluded that the
plaintiff did not have standing to seek injunctive relief. Id. at *2-3. Plaintiff’s argument to the
contrary was that he alleged that HP would continue to market, sell and lease laptops like the one
he had used, and that if so “he might buy another one someday.” Id. at *3 (internal quotation
marks omitted). However, the Twardzik Court found that this assertion of future injury was
hypothetical, in that “no one will force [plaintiff] to buy another HP product”; the Court
explained that it simply could not countenance “this sort of ‘stop me before I buy again’ claim”
for injunctive relief. Id. (quoting In re Johnson & Johnson Talcum Powder Prods. Mktg. Sales
Pracs. & Liab. Litig., 903 F.3d 278, 293 (3d Cir. 2018)).
For the same reasons as those set out in Twardzik, the Court agrees with Defendant that
Plaintiffs’ claims for future injunctive relief must be dismissed here. The SAC simply does not
plausibly suggest that the named Plaintiffs will likely be misled by Defendant in the future into
buying a Class Laptop; at most, the pleading asserts that other unknowing potential customers
could suffer this fate. If the named Plaintiffs did buy such a laptop in the future, that would be
their own choice, and it would be a decision that they made with full knowledge of the prior
defects that they had previously experienced regarding similar products. See In re Johnson &
Johnson, 903 F.3d at 292 (“The premise that former customers would again be deceived by the
very sort of advertising practices over which they were already pursuing [] relief [is] a premise
unmoored from reality.”). Indeed, Plaintiffs offered no substantive response in their briefing to
Defendant’s arguments regarding this issue. (D.I. 25; D.I. 26 at 15)
Therefore, the Motion is GRANTED with prejudice as to Plaintiffs’ claims for injunctive
relief.

13

B.

Defendant’s Arguments Regarding Dismissal of Plaintiffs’ Claims Pursuant
to Rule 12(b)(6)

Next, Defendant argues that all of Plaintiffs’ claims should be dismissed for failure to
state a claim, pursuant to Rule 12(b)(6). In order to survive a motion to dismiss pursuant to Rule
12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks and citation omitted). In assessing such a motion, the court first separates the
factual and legal elements of a claim, accepting “all of the complaint’s well-pleaded facts as true,
but [disregarding] any legal conclusions.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11
(3d Cir. 2009). Second, the court determines “whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Id. at 211 (quoting
Ashcroft, 556 U.S. at 679).
In making this Rule 12(b)(6) challenge, Defendant breaks up Plaintiffs’ claims into
different broad groupings: (1) Plaintiffs’ statutory consumer protection claims and common law
fraud claims; (2) Plaintiffs’ unjust enrichment claims; (3) Plaintiffs’ express warranty claims;
and (4) Plaintiffs’ implied warranty claims. (D.I. 23 at 20-27) The Court will address these
various challenges in turn.
1.

Plaintiffs’ Statutory Consumer Protection Claims and Common Law
Fraud Claims

Defendants first attack Plaintiffs’ statutory consumer protection claims and common law
fraud claims. (D.I. 23 at 8-20) A preliminary question here relates to what pleading
requirements apply to these claims. The Court will address that issue first. Then it will address
the challenges to these claims on the merits.
a.

Does Rule 8 or Rule 9(b) Apply?

14

Normally, in order to set out a plausible claim in a complaint, a plaintiff must only meet
the bar set by Federal Rule of Civil Procedure 8, which requires that the pleading include “a
short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed. R.
Civ. P. 8(a)(2). Defendant argues, however, that Plaintiffs’ statutory consumer protection claims
and common law fraud claims are all subject to Federal Rule of Civil Procedure 9(b)’s higher
pleading standard. (D.I. 23 at 8 (citing Fed. R. Civ. P. 9(b))) Rule 9(b) mandates that the
“circumstances constituting fraud or mistake” be “state[d] with particularity[.]” Fed. R. Civ. P.
9(b); see also Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007). To do so, a party
“must plead or allege the date, time and place of the alleged fraud or otherwise inject precision or
some measure of substantiation into a fraud allegation.” Frederico, 507 F.3d at 200. Put another
way, the pleader must allege the “who, what, when, where and how of the events at issue.”
United States ex rel. Bookwalter v. UPMC, 946 F.3d 162, 176 (3d Cir. 2019) (internal quotation
marks and citation omitted). However, knowledge and intent “may be alleged generally.” Fed.
R. Civ. P. 9(b).
In their briefing, Plaintiffs argue that many of the statutory consumer protection claims
“are immune to Rule 9(b)[] or have a scope beyond fraud—which allows Plaintiffs to pursue
claims under the statute without invoking Rule 9(b).” (D.I. 25 at 4-5) But as Defendant
counters, (D.I. 26 at 2), in this Circuit whether Rule 9(b) applies to a claim does not depend on
the title of the particular statute that is utilized, nor even on whether fraud is a necessary element
of that claim; instead, what matters is whether the factual allegations in the claim as pleaded
“sound in fraud.” In re Westinghouse Sec. Litig., 90 F.3d 696, 717 (3d Cir. 1996); see also
Shapiro v. UJB Fin. Corp., 964 F.2d 272, 288 (3d Cir. 1992); Diaz v. FCA US LLC, Civil Action
No. 21-cv-00906-EJW, 2022 WL 4016744, at *20 & n.27 (D. Del. Sept. 2, 2022).

15

Here, Plaintiffs’ common law fraud claims obviously sound in fraud. And in the Court’s
view, so too do Plaintiffs’ statutory consumer protection claims. In the first 39 paragraphs of the
SAC—the part of the pleading in which Plaintiffs summarize the nature of the allegations
therein—Plaintiffs assert that: (1) Defendant “knew, or was reckless in not knowing” about the
Hinge Defect and its impact in the relevant period; (2) but Defendant intentionally “concealed
from and/or failed to disclose” that defect to its customers; (3) at the same time, Defendant
knowingly made “false and misleading” statements about the reliability of the Class Laptops
(even though Defendant knew that the laptops contained this defect); and (4) Defendant’s
conduct was “fraudulent, misleading, and deceptive[.]” (D.I. 19 at ¶¶ 8-11, 27, 31, 33, 36)
These amount to assertions that that Defendant knowingly and/or recklessly made false or
fraudulent statements or omissions about the Hinge Defect to Plaintiffs and the classes. Each of
the 20 statutory consumer protection Counts incorporate by reference these summary allegations,
and they include additional language that certainly can (and in this case, does) speak to a claim
of fraud (such as “deceptive[,]” “knowing and intentionally conceal[,]” “false[,]” “intended to
mislead[,]” “fraudulent[,]” and the like). (Id. at ¶¶ 478-613, 641-64, 681-93, 722-30, 769-813,
935-45). 17 For all of these reasons, the Court concludes that these Counts must be pleaded in

17

The state statutes at issue are certainly broad enough that they could
accommodate claims sounding in fraud. See, e.g., Diaz, 2022 WL 4016744, at *20, *23-24 &
nn.27, 32 (applying Rule 9(b) to the plaintiff’s claims under the New York statute at issue here);
Mulder v. Kohl’s Dep’t Stores, Inc., 865 F.3d 17, 21-22 (1st Cir. 2017) (applying Rule 9(b) to the
plaintiff’s claims under the Massachusetts statute at issue here); In re Volkswagen Timing Chain
Prod. Liab. Litig., Civil Action No.: 16-2765 (JLL), 2017 WL 1902160, at *23 (D.N.J. May 8,
2017) (concluding that the plaintiffs’ “statutory fraud and/or violations of consumer protection
laws [claims]” based on statutes asserted in this case from the states of Arkansas, California,
Florida, Georgia, Indiana, Michigan, New Jersey, Ohio and Washington “all sound in fraud and
therefore are subject to the heighted pleading standard of [Rule 9(b)]”); Blake v. Career Educ.
Corp., No. 4:08CV00821 ERW, 2009 WL 140742, at *2 (E.D. Mo. Jan. 20, 2009) (applying the
Rule 9(b) pleading standard to the plaintiffs’ claims under the Missouri statute at issue in this
case); In re Gen. Motors LLC Ignition Switch Litig., 257 F. Supp. 3d 372, 406 (S.D.N.Y. 2017)
16

conformance with Rule 9(b). See, e.g., Twardzik, 2022 WL 606092, at *4; Diaz, 2022 WL
4016744, at *20, *23-24 & nn.27, 32; DiMartino v. BMW of N. Am., LLC, Civ. No. 15-8447
(WJM), 2016 WL 4260788, at *6 (D.N.J. Aug. 11, 2016); Naporano Iron & Metal Co. v. Am.
Crane Corp., 79 F. Supp. 2d 494, 510 (D.N.J. 1999).
b.

Discussion

With that matter settled, the Court moves on to determining whether the statutory
consumer protection claims and the common law fraud claims are in fact pleaded in compliance
with Rule 9(b). In this regard, Defendant provides many different reasons why it thinks that they
are not (or why Plaintiffs otherwise have failed to state a claim). (D.I. 23 at 8-20)
In the Court’s view, certain of Defendant’s arguments—i.e., as to how the claims are
insufficiently pleaded under Rule 9(b)—are sufficient to warrant dismissal. Below, the Court
will set out why it thinks this is so. Thereafter, in an effort to help streamline any future pleading
disputes, the Court will also briefly provide its view as to the substance of most of Defendant’s
other challenges regarding these claims.
i.

Failure to Sufficiently Allege Claims Pursuant to Rule
9(b) as to Reliance/Causation

As the Court noted in Section I.B., Plaintiffs’ allegations of wrongdoing, at least as they
relate to the statutory consumer protection claims, essentially break down into two types of
assertions: (1) that Defendant made intentional affirmative misrepresentations regarding the
Class Laptops and the Hinge Defect (i.e., that Defendant knowingly, falsely advertised the
reliability and durability of the laptops); and/or (2) that Defendant knowingly omitted making

(concluding that claims sounding in fraud under the Alabama statute at issue here are subject to
Rule 9(b)); Smallman v. MGM Resorts Int’l, 638 F. Supp. 3d 1175, 1207-08 (D. Nev. 2022)
(applying the Rule 9(b) heightened pleading standard to the plaintiff’s claims under the Oregon
statute at issue here).
17

important disclosures about the Class Laptops relating to the Hinge Defect (i.e., that Defendant
knowingly failed to disclose the defect to customers). (D.I. 19 at ¶¶ 8-11, 17-20, 31-32, 36) It is
apparent from the SAC and from the parties’ briefing that the factual allegations underlying the
statutory consumer protection claims are essentially the same types of allegations one would
make if one intended to plead typical state law claims for fraudulent misrepresentation and/or
fraudulent omission/concealment. As a result, there is essentially no dispute that if Plaintiffs
have failed to sufficiently allege an element of a fraudulent misrepresentation or a fraudulent
omission/concealment claim, then they will not have sufficiently pleaded a claim under Rule 9(b)
under any of the state statutory consumer protection statutes at issue. (D.I. 23 at 8-20; D.I. 25 at
4-20); see also Miller v. Gen. Motors, LLC, Case No. 17-cv-14032, 2018 WL 2740240, at *15
(E.D. Mich. June 7, 2018) (concluding the same, in a case involving similar types of
allegations.). Nor will Plaintiffs have sufficiently stated a claim pursuant to the two common
law fraud counts (which each relate to the second of those two types of misconduct: fraudulent
omission/concealment.). 18 The Court will proceed with this in mind.

18

To state a claim under the various named consumer protection statutes, many of
the statutes generally require a showing of similar elements: (1) a deceptive or unfair practice
(e.g., intentionally making misrepresentations or omitting material information about a product’s
defect), (2) a causal connection between the allegedly unlawful or deceptive act and plaintiff’s
harm, and (3) actual damages or ascertainable loss. See, e.g., Hurry v. Gen. Motors LLC, 622 F.
Supp. 3d 1132, 1157 (M.D. Ala. 2022) (Alabama Deceptive Trade Practices Act); In re Horizon
Organic Milk Plus DHA Omega-3 Mktg. and Sales Prac. Litig., 955 F. Supp. 2d 1311, 1327-28
(S.D. Fla. 2013) (Arkansas Deceptive Trade Practices Act ); In re Vioxx Class Cases, 103 Cal.
Rptr. 3d 83, 94 (Cal. Ct. App. Dec. 15, 2009) (CCLRA); Ivie v. Kraft Foods Glob., Inc., 961 F.
Supp. 2d 1033, 1046 (N.D. Cal. 2013) (CUCL and CFAL); City First Mortg. Corp. v. Barton,
988 So. 2d 82, 86 (Fla. Dist. Ct. App. 2008) (Florida Deceptive & Unfair Trade Practices Act);
Jackson v. Anheuser-Busch InBev SA/NV, LLC, Case No. 20-cv-23392-BLOOM/Louis, 2021
WL 3666312, at *16 (S.D. Fla. Aug. 18, 2021) (Florida Statute § 817.41); Tiismann v. Linda
Martin Homes Corp., 637 S.E.2d 14, 17 (Ga. 2006) (Georgia Fair Business Practices Act);
Terrill v. Electrolux Home Prods., 753 F.Supp.2d 1272, 1291 (S.D. Ga. 2010) (Georgia Uniform
Deceptive Trade Practices Act); Butler Motors, Inc. v. Benosky, 181 N.E.3d 304, 317-18 (Ind.
Ct. App. 2021) (IDCSA); Tomasella v. Nestle USA, Inc., 962 F.3d 60, 71 (1st Cir. 2020)
18

So what is required to sufficiently set out a claim that alleges a fraudulent
misrepresentation or fraudulent omission/concealment? Generally, in order to state such a claim
for common law fraud, a plaintiff must establish: (1) the defendant made a false representation
of or failed to disclose a material fact; (2) the defendant knows or believes that the statement is
false; (3) the plaintiff believed that the representations made by the defendant were true; (4) the
defendant intended the plaintiff to act upon the misstatement or omission; and (5) the plaintiff
relied on the defendant’s misstatement or omission to his or her detriment. Miller, 2018 WL
2740240, at *11 (citing 5A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Procedure §
1297 (3d ed.)).
In assessing the Motion as to these claims, the Court will first address the claims to the
extent that they are premised on Defendant making intentional fraudulent misrepresentations.
Here, Defendant’s primary argument is not that the SAC fails to call out specific purported
misrepresentations that were made by Defendant. The SAC does do this, in various places.

(Massachusetts Consumer Protection Act); In re OnStar Cont. Litig., 278 F.R.D. 352, 376 (E.D.
Mich. 2011) (Michigan Consumer Protection Act); Kerr v. Vatterott Educ. Ctrs., Inc., 439
S.W.3d 802, 809 (Mo. Ct. App. 2014) (MMPA); Duffy v. Samsung Elecs. Am., Inc., No. CIV.065259 (DRD), 2007 WL 703197, at *6 (D.N.J. Mar. 2, 2007) (New Jersey Consumer Fraud Act);
Chen v. Dunkin’ Brands, Inc., 954 F.3d 492, 500 (2d Cir. 2020) (Sections 349 and 350 of the
New York General Business Law); In re Porsche Cars N. Am., Inc., 880 F. Supp. 2d 801, 868
(S.D. Ohio 2012) (Ohio Consumer Sales Practices Act); Pearson v. Philip Morris, Inc., 361 P.3d
3, 28 (Or. 2015) (OUTPA); In re Porsche Cars N. Am., Inc., 880 F. Supp. 2d at 880 (Washington
Consumer Protection Act). The Court presumes (the parties did not address this specifically)
that a party may bring a claim premised on either a fraudulent misrepresentation or a fraudulent
omission/concealment under each of these statutes.
Count XVIII’s fraud by concealment claim is brought pursuant to Michigan law, which
the Court will presume is representative for purposes of the common law fraud claims. Such a
claim has the same elements of a fraudulent misrepresentation claim, with the difference that it is
based on: (1) a defendant suppressing a material fact that (2) he or she had a legal duty to
disclose. See Elec. Stick, Inc. v. Primeone Ins. Co., Docket No. 327421, 2016 WL 4954423, at
*3 (Mich. Ct. App. Sept. 15, 2016).
19

Among these are where it is alleged that Defendant stated that certain of the Class Laptops are
“reliable” and “designed for long-lasting performance” with a “compact, portable design[,]” or
that they were subject to “extensive quality testing [that] ensures you can keep going . . . and
going.” (D.I. 19 at ¶¶ 8-9, 28, 114, 116 (internal quotation marks and citations omitted)) Other
similar alleged misstatements are identified with specificity as well. (Id. at ¶¶ 10-11, 111-13,
115)
Instead, Defendant’s primary argument is that Plaintiffs have failed, pursuant to Rule
9(b), to sufficiently allege “the specific statements, if any, they reviewed or relied upon” prior to
purchasing the laptops at issue. (D.I. 23 at 8 (emphasis added); see also id. at 9 (Defendant
arguing that Plaintiff has failed to “identify the specific marketing statements attributed to
[Defendant] that he or she claims to have relied upon”) (emphasis added)) In other words,
Defendant is asserting that Plaintiffs have failed to plead the “what” and the “how” of this type
of claim with the requisite particularity, because Plaintiffs have failed to specify which of the
assertedly false or misleading statements Defendant made about the Class Laptops each Plaintiff
saw and relied upon, prior to purchasing the product (and relatedly, how any particular
misrepresentation could have caused that plaintiff to incur some form of damages). Rule 9(b)
requires this type of specificity for misrepresentation-based claims; in order to make out such a
claim, the plaintiff must “explain[] exactly how [Defendant] made a false representation that
[Plaintiffs] reasonably relied on.” Twardzik, 2022 WL 606092, at *4 (internal quotation marks
and citations omitted). 19

19

It may be that reliance is not an element of certain of the consumer protection
statutes at issue here. For example, elsewhere in their briefing, Plaintiffs assert that a claim
made pursuant to Section 349 of the New York General Business Law does not require a
showing of reliance. (D.I. 25 at 17 (citing Pelman ex rel. Pelman v. McDonald’s Corp., 396 F.
Supp. 2d 439, 444 (S.D.N.Y. 2005)) But even if that is so, that law (and others like it) require a
20

Here, the Court agrees with Defendant that Plaintiffs’ allegations are insufficient. As to
27 of the 30 named Plaintiffs at issue, 20 the SAC’s allegations on this score are word-for-word
identical (which is, in and of itself, a sign that Rule 9(b) may not be satisfied). That “generic[]
and verbatim identical” allegation, (D.I. 23 at 3), is that “[p]rior to purchasing [a] Class Laptop,
[Plaintiff] researched different laptops and viewed multiple advertisements from HP, touting HP
laptops’ reliability, durability, and superiority over competitive offerings.” (D.I. 19 at ¶¶ 133,
144, 156, 163, 174, 186, 197, 209, 220, 231, 248, 260, 272, 284, 305, 316, 327, 338, 350, 362,
373, 385, 396, 408, 432, 444, 455) There is no attempt here to identify any specific alleged

plaintiff to show injury caused by the deceptive practice at issue. Pelman, 396 F. Supp. 2d at
444. Thus, even if there are some scenarios wherein a plaintiff could plead causation as to this
statute without pleading reliance, the Court does not see how one could do so here—at least to
the extent that a Plaintiff’s claim is premised on the fact that Defendant made an intentional
misrepresentation. Such a Plaintiff would have to explain (with specificity, pursuant to Rule
9(b)) how it is that the misrepresentation caused him or her harm. And to do so, he or she would
presumably have to state what misrepresentation he or she saw that factored into that person’s
decision to buy a Class Laptop. See In re ZF-TRW Airbag Control Units Prods. Liab. Litig., 601
F. Supp. 3d 625, 791 (C.D. Cal. 2022) (citing cases); Rice v. Electrolux Home Prods., No. 4:15CV-00371, 2021 WL 916203, at *3-4 (M.D. Pa. Mar. 10, 2021).
20

With regard to Plaintiff Janet Purvis of Missouri, the SAC does not make any
allegations at all that she reviewed any alleged misstatements of Defendant before purchasing a
Class Laptop. (D.I. 19 at ¶¶ 294-302) That is because Ms. Purvis is alleged to have “received an
HP Pavilion x360 Laptop as a gift for her personal use on November 1, 2019.” (Id. at ¶ 295)
The Court does not understand how Ms. Purvis could successfully make out a claim based on
fraudulent misrepresentation pursuant to the counts at issue here, if she never relied on or
interacted with any form of Defendant-related advertising prior to receiving her laptop as a gift.
Similarly, as to Plaintiff Ian Perry of New York, the SAC pointedly does not state that he
reviewed any advertisements from Defendant prior to purchasing his laptop. (Id. at ¶¶ 420-29)
Thus, it does not appear that Plaintiffs intend to make a claim regarding Mr. Perry that relates to
intentional misrepresentations.
Lastly, the SAC includes reference in its caption and opening paragraph to Plaintiff
Trudy L. Graner. (Id. at 1-2) So far as the Court can tell, Ms. Graner is never mentioned again
in the SAC. (D.I. 23 at 2-3 n.1) And so the Court does not see how Plaintiffs can be attempting
to put Ms. Graner forward as a named Plaintiff in any respect, including as to a claim premised
on intentional misrepresentations. It will not discuss her further herein.
21

misrepresentation that each Plaintiff actually saw, or that is said to have contributed to that
Plaintiff’s decision to buy a Class Laptop.
It makes sense why Rule 9(b) requires more. See Frederico, 507 F.3d at 200 (explaining
that Rule 9(b)’s purpose is to require a plaintiff to “state the circumstances of the alleged fraud
with sufficient particularity to place the defendant on notice of the precise misconduct with
which it is charged”) (internal quotation marks and citation omitted). For example, assume that
Defendant had a winning argument that certain of the alleged statements at issue do not actually
amount to actionable misrepresentations. (See, e.g., D.I. 23 at 9 n.7) But also assume that its
arguments on that score as to other of the asserted misrepresentations were not viable. In such a
scenario, Defendant (and the Court) would need to know, on a Plaintiff-by-Plaintiff basis, which
Plaintiff had seen which alleged misstatement at issue. Only if that was well set out in the
pleading could Defendant and the Court thus be clear as to which of these Plaintiffs’ claims
should proceed forward, and which should not.
For these reasons, Plaintiffs’ statutory consumer protection claims are dismissed to the
extent that they are premised on intentional misrepresentations made by Defendant. See, e.g.,
Shea v. Gen. Motors LLC, 567 F. Supp. 3d 1011, 1024 (N.D. Ind. 2021) (finding that a claim
based on fraudulent misrepresentations brought under the Indiana statute at issue here did not
satisfy Rule 9(b), where the plaintiffs “never sufficiently allege they relied on the[ marketing
materials at issue said to include deceptive statements] in making their purchases”); Glass v.
BMW of N. Am., Civil Action No. 10-5259 (ES), 2011 WL 6887721, at *7 (D.N.J. Dec. 29,
2011) (concluding that a plaintiff, who was attempting to plead an intentional misrepresentationtype claim based on the New Jersey statute at issue here, had failed to do so pursuant to Rule
9(b), where she simply “reference[d] a statement on a website without providing the date when

22

the statement was made or at what point—if ever—Plaintiff was exposed to that statement[,]”
such that she had failed to state “the specific advertisement that she reviewed which included a
misrepresentation”); cf. Minnick v. Clearwire US, LLC, 683 F. Supp. 2d 1179, 1188 (W.D.
Wash. 2010) (concluding that plaintiffs, who were attempting to plead such a claim under the
Washington statute at issue here, had not sufficiently done so because they failed to identify the
statements of defendant that they had relied upon).
The Court next assesses the statutory consumer protection claims and the common law
fraud claims to the extent they are premised on Defendant’s alleged fraudulent omissions. In the
SAC, Plaintiffs’ allegation is that Defendant “concealed from and/or failed to disclose to
Plaintiffs and the Class members the defective nature of the Class Laptops[.]” (D.I. 19 at ¶ 31)
This Rule 9(b) analysis is a bit more challenging than that regarding the alleged
fraudulent misrepresentations. But in the end, the Court similarly agrees that Plaintiffs’ claims
as to the counts at issue should be dismissed to the extent they relate to purported fraudulent
omissions.
To start, the Court acknowledges (as Plaintiffs note), (D.I. 25 at 5-6), that when it comes
to claims that plead fraudulent omissions (as opposed to fraudulent misrepresentations), Rule
9(b)’s pleading standard is necessarily “relaxed” in certain ways. Our Court has recognized this
in the past, see Bolton v. Ford Motor Co., Civil Action No. 23-00632-GBW, 2024 WL 3328522,
at *9 (D. Del. July 8, 2024); Robinson v. Gen. Motors, LLC, Civil Action No. 20-663-RGA-SRF,
2021 WL 3036353, at *4 (D. Del. July 19, 2021), report and recommendation adopted, 2021
WL 7209365 (D. Del. Nov. 30, 2021), and the Court presumes that the United States Court of
Appeals for the Third Circuit would as well, see Twardzik v. HP Inc., No. 22-2650, 2023 WL
5770999, at *6 (3d Cir. Sept. 7, 2023) (Freeman, J., dissenting in part). The Court understands

23

that the reason why Rule 9(b) must necessarily be “relaxed” as to fraudulent omission claims is
that—unlike with a fraudulent misrepresentation claim (where it is always the case that a
particular statement at issue has been made in a particular time period by a particular speaker, or
reviewed in a particular time period by a particular claimant)—a claim regarding a fraudulent
omission simply does not lend itself to specificity of that same type. Put differently, one cannot
identify with specificity one particular date or time or speaker that relates to an omission—since
by definition, when it comes to an omission, the idea is that the defendant simply never said
anything at any particular time. See Robinson, 2021 WL 3036353, at *4 (explaining that with a
fraud-by-omission claim, the plaintiff “will not be able to specify the time, place and specific
content of an omission as precisely as would a plaintiff in a false representation claim”);
Ademiluyi v. PennyMac Mortg. Inv. Trust Holdings I, LLC, 929 F. Supp. 2d 502, 533 (D. Md.
2013) (noting that Rule 9(b) is less strictly applied with respect to claims of fraud by
concealment because “an omission cannot be described in terms of the time, place, and contents
of the misrepresentation or the identity of the person making the misrepresentation”) (internal
quotation marks and citation omitted).
Even still, there is no dispute that as to their fraudulent omission-based claims, Plaintiffs
otherwise need to plead the “who, what, when, where and how,” in order to satisfy Rule 9(b).
(D.I. 25 at 6; D.I. 26 at 3) In the Court’s view, this would mean that each Plaintiff would need to
plead some specific facts (i.e., facts that would satisfy Rule 9(b)), indicating why it is plausible
that he or she relied upon the omission at issue (or why the omission caused him or her harm) as
to the purchase of a Class Laptop. Put another way, each Plaintiff should have to plead some
specific facts that show why it is plausible that—had Defendant not concealed the Hinge Defect
(and instead made some type of public statement or disclosure regarding it)—this actually would

24

have impacted the Plaintiff’s purchasing decision in some way. This should include some
specific allegations about the extent to which, prior to purchase, each Plaintiff made an effort to
search for or obtain information about HP laptops (or at least laptops in general)—i.e., the kind
of searching that might have plausibly caused them to see a statement/disclosure from Defendant
about the Hinge Defect, had one ever been made.
However, as was noted above, the SAC does not include any such specific allegations.
Instead, for 27 of the 30 Plaintiffs, it simply makes the exact same broad, general, boilerplatetype assertion: that before acquisition of the Class Laptop at issue, each Plaintiff “researched
different laptops and viewed multiple advertisements from HP, touting HP laptops’ reliability,
durability, and superiority over competitive offerings.” Again, that is a vague, unspecific
allegation. And because the allegation is identical as to each Plaintiff at issue, it cannot be meant
to state with particularity the actual experience of any one Plaintiff at all. This simply cannot be
what Rule 9(b) contemplates.
Plaintiffs push back by suggesting that, pursuant to the “relaxed” standard for pleading
Rule 9(b) in fraudulent omission cases, they should not have to make any specific, particularized
assertions as to how Defendant’s omissions caused them harm. (D.I. 25 at 5-7) But the Court
does not see why this is so. Certainly, this type of information is not unavailable to each
Plaintiff. Put differently, while there is no one unique and specific date or time on which
Defendant omitted the information about the Class Laptops, a Plaintiff certainly can plead some
specific facts (as opposed to one genericized, copy-and-pasted sentence) about the extent to
which they searched for information relevant to the laptops at issue before they made their
purchase.

25

Moreover, the SAC itself sheds light on why these types of specific allegations could be
crucial at the pleading stage. (D.I. 23 at 11) As was noted previously, see supra at 21 n.20, one
Plaintiff, Janet Purvis of Missouri, received her Class Laptop as a gift. (D.I. 19 at ¶ 295)
Another, Ian Perry of New York, does not appear to have done any research about laptops at all,
nor to have reviewed any advertisements from Defendant, prior to purchasing his Class Laptop.
(Id. at ¶¶ 420-29) If this is so, then the Court does not see how it could plausibly be asserted that
either of these Plaintiffs relied on Defendant’s fraudulent omissions. Nor does it see how one
could allege that the omissions somehow caused these Plaintiffs to come into possession of their
laptop.
Additionally, consider a Plaintiff who browsed the internet looking for information about
a laptop she might purchase, but did so only on one day for a few minutes. Then consider
another Plaintiff who spent weeks looking for laptop-related information online, including by
perusing HP-related websites on the subject. It could be that the former would not have a
plausible claim premised on the fraudulent omissions at issue. But the latter surely would. And
yet, the problem with the SAC is that there are no specific facts (that is, facts specific to each
Plaintiff) pleaded on this score enabling the reader to differentiate the former Plaintiff from the
latter. And again, it is possible for a plaintiff to plead these types of facts; Plaintiffs here simply
did not take the time to do so. 21 See, e.g., Bertini v. Smith & Nephew, Inc., 8 F. Supp. 3d 246,

21

In Eisen v. Porche Cars N. Am., Inc., No. CV 11-9405 CAS (FEMx), 2012 WL
841019 (N.D. Cal. Feb. 22, 2012), the United States District Court for the Northern District of
California concluded that the plaintiff, in order to plead a fraud by omission claim (and a similar
claim pursuant to certain of the California statutes at issue here) with specificity under Rule 9(b),
had to “describe the content of the omission and where the omitted information should or could
have been revealed, as well as provide representative samples of advertisements, offers, or other
representations that plaintiff relied upon to make her purchase and that failed to include the
allegedly omitted information.” 2012 WL 841019, at *3. Both sides reference Eisen in their
briefing here. (D.I. 23 at 10-11; D.I. 25 at 6-7) But Plaintiffs argue that other judicial opinions
26

259 (E.D.N.Y. 2014) (concluding that plaintiffs had not sufficiently pleaded reliance pursuant to
Rule 9(b) as to a fraudulent omission claim made pursuant to New York law, where the plaintiffs
had never alleged that they had viewed any press releases of defendants about the relevant
subject matter); Rice v. Electrolux Home Prods., Inc., No. 4:15-CV-00371, 2020 WL 247284, at
*14 (M.D. Pa. Jan. 15, 2020) (concluding that, regardless of whether under Rule 9(b) a “more
flexible” standard for pleading reliance as to a fraudulent omissions was used, the plaintiff had
not met the pleading bar, where the assertions amounted to only a “general allegation” regarding
reliance); cf. In re MacBook Keyboard Litig., Case No. 5:18-cv-02813-EJD, 2019 WL 1765817,
at *7 (N.D. Cal. Apr. 22, 2019) (concluding that the plaintiffs had sufficiently pleaded reliance as

have criticized Eisen’s holding in this respect, or have otherwise failed to require such specificity
when it comes to reliance on omissions, (D.I. 25 at 6-7). See, e.g., Banh v. Am. Honda Motor
Co., Inc., Case No. 2:19-cv-05984-RGK-AS, 2019 WL 8683361, at *7 (C.D. Cal. Dec. 17, 2019)
(concluding that, contrary to Eisen, plaintiffs bringing fraudulent omission claims, including as
to certain of the California statutes at issue here, could plead causation sufficiently pursuant to
Rule 9(b) where their allegations, though “not a model of specificity[,]” asserted that they
“reviewed information on Acura’s website or Honda promotional materials before purchasing
the Vehicle”) (cited in D.I. 25 at 6); Weske v. Samsung Elecs., Am., Inc., 42 F. Supp. 3d 599, 612
(D.N.J. 2014) (concluding that, as to the Washington statute at issue here, a plaintiff asserting a
claim based on omissions did not need to plead “that he saw a communication from [the
defendant] before he made his purchase[,]” but noting that he would still need to “prove
causation”) (cited in D.I. 25 at 6, 7). Yet other courts seem to have cited to Eisen approvingly as
to this issue. See Grimes v. Ford Motor Co., Case No. EDCV 22-1896-MWF (JC), 2023 WL
5207463, at *9 (C.D. Cal. Mar. 6, 2023); Watkins v. MGA Ent., Inc., 550 F. Supp. 3d 815, 826
(N.D. Cal. July 26, 2021); Espineli v. Toyota Motor Sales, U.S.A., Inc., No. 2:17-cv-00698-KJMCKD, 2019 WL 2249605, at *4 (E.D. Cal. May 24, 2019).
The Court is not suggesting that a plaintiff has to plead every possible advertising-related
location or venue where the defendant could have possibly made a fulsome disclosure (but failed
to). Nor is it suggesting that a plaintiff has to remember with precise detail the content of any
HP-related or laptop-related advertising/information it sought out in the relevant time. Instead,
the Court is simply suggesting that when it comes to Rule 9(b)’s requirement that a plaintiff
plead sufficient reliance-related facts as to a fraudulent omission claim, the pleading cannot just
include the same cut-and-pasted wording for each of approximately 30 different Plaintiffs. The
pleading needs to allege at least some facts—specific to that plaintiff—that renders it plausible
that he or she actually relied on a fraudulent omission (or that the omission actually caused him
or her harm).
27

to a fraudulent omission claim pursuant to Rule 9(b), but where each plaintiff had alleged that
they visited a specific website of the defendant prior to purchasing their laptop, and had also
alleged that they saw certain representations on that website regarding the laptop’s keyboard
(i.e., the portion of the laptop that was at issue in plaintiffs’ defect claims) and its capabilities).
For these reasons, the Court concludes that Plaintiffs’ statutory consumer protection
claims and common law fraud claims must also be dismissed, to the extent that they are premised
upon Defendant’s fraudulent omissions/concealment of facts relating to the Hinge Defect. Thus,
the Court has now ruled that the Motion is GRANTED as to the entirety of these claims, such
that they are now dismissed.
With that said, it seems possible that as to the statutory consumer protection claims and
common law fraud claims, at least some number of Plaintiffs could address the Court’s concerns
here in a renewed pleading. For that reason, because Plaintiffs have sought leave to amend if
their allegations were deemed deficient, (D.I. 25 at 33-34), and because Federal Rule of Civil
Procedure 15(a)(2) states that a court should “freely give leave [to amend the pleadings] when
justice so requires[,]” Fed. R. Civ. P. 15(a)(2), the court will dismiss these claims without
prejudice.
ii.

Defendant’s Other Challenges to the Statutory
Consumer Protection Claims and the Common Law
Fraud Claims

The Court could stop here as to the statutory consumer protection claims and common
law fraud claims. But because Defendant raised so many other challenges to them, and because
it may help streamline the future pleading process to do so (assuming Plaintiffs attempt to replead), below the Court will provide its view as to how it likely would have ruled on Defendant’s
other challenges to these claims, had it needed to do so:

28

•

The Court would likely have DENIED the Motion as to its
argument that the SAC contains no particularized allegations of
falsity (in that it instead simply references non-actionable puffery),
(D.I. 23 at 9 n.7), because the argument was made solely in a
footnote in Defendant’s opening brief. See Sage Chem., Inc. v.
Supernus Pharms., Inc., Civil Action No. 22-1302-CJB, 2024 WL
2260331, at *11 n.14 (D. Del. May 9, 2024) (citing cases).

•

The Court would likely have DENIED the Motion as to its
argument that Plaintiffs failed to sufficiently allege a defect (i.e.,
because there are no allegations as to why there was a materially
significant failure rate as to the Class Laptops), (D.I. 23 at 12), in
light of the SAC’s allegations regarding the magnitude of the
customer complaints regarding the Hinge Defect, (D.I. 19 at ¶¶ 17,
91-98).

•

The Court would likely have DENIED the Motion as to its
argument that Plaintiffs failed to sufficiently allege Defendant’s
knowledge of any defect, (D.I. 23 at 12-13), in light of the SAC’s
allegations regarding the magnitude of the customer complaints
regarding the Hinge Defect and that many of those complaints
were found on Defendant’s own website, (D.I. 19 at ¶¶ 17, 91-98;
D.I. 25 at 9-10). See In re Rust-Oleum Restore Mktg., Sales Pracs.
& Prods. Liab. Litig., 155 F. Supp. 3d 772, 815-16 (N.D. Ill.
2016); Avedisian v. Mercedes-Benz USA, LLC, No. CV 12-00936
DMG (CWx), 2013 WL 2285237, at *7 (C.D. Cal. May 22, 2013);
In re Sony Vaio Comput. Notebook Trackpad Litig., No. 09cv2109
BEN (RBB), 2010 WL 4262191, at *5 (S.D. Cal. Oct. 28, 2010).

•

The Court would likely have DENIED the Motion as to its
argument that Plaintiffs failed to sufficiently allege a duty to
disclose, (D.I. 23 at 14), for essentially the reasons set out by
Plaintiffs, (D.I. 25 at 10-12), and because Defendant did not do
enough to “parse the different state standards for duty to disclose
in its briefing[,]” Counts v. Gen. Motors, LLC, 237 F. Supp. 3d
572, 600 (E.D. Mich. 2017).

•

With regard to the various additional state law-specific reasons
(i.e., those reasons that are distinct from whether Plaintiffs
sufficiently pleaded the above-referenced elements of a fraudulent
misrepresentation and omission claim) that Defendants suggested
would warrant dismissal of these counts as to some Plaintiffs, (D.I.
23 at 15-20), the Court would likely have DENIED the Motion on
these grounds, with the exception of: (1) Plaintiff Carole
Schauer’s California statutory claims in Counts IX, X and XIII,
and Plaintiff Terrance Graner’s claims under the CCLRA and
29

CFAL in Counts X and XIII, which appear to be time-barred as
pleaded. 22 (D.I. 23 at 17; D.I. 25 at 15; see also D.I. 19 at ¶¶ 15455, 159, 185, 189); 23 (2) Plaintiffs’ claims in Counts XXV and
XXIX, for the reason set out by Defendant. (D.I. 23 at 18); (3)
Plaintiff Sabine Miller’s claim under the IDCSA in Count III,
which appears to be time-barred as pleaded. (Id.; see also D.I. 19
at ¶¶ 271, 275); (4) Plaintiff Janet Purvis’ claim under the MMPA
in Count VII, due to lack of standing. (D.I. 23 at 19; see also D.I.
19 at ¶ 295); see supra at 21 n.20.; (5) Plaintiff Cara Washington’s
claim under the OCSPA in Count VIII, which appears to be timebarred as pleaded. (D.I. 23 at 20; see also D.I. 19 at ¶¶ 326, 330);
(6) Plaintiff Sarah Householder’s claim under the OUTPA in
Count XIV, which appears to be time-barred as pleaded. (D.I. 23
at 20; see also D.I. 19 at ¶¶ 304, 308); and (7) Plaintiff Donald
Harmon’s claim in Count IV, in that Plaintiffs have conceded that
claim. (D.I. 25 at 2 n.1) 24
2.

Plaintiffs’ Nationwide Class Claims

The Court next addresses Defendants’ Rule 12(b)(6) challenges to what Defendants refer
to as Plaintiffs’ “nationwide class claims.” (D.I. 23 at 20-27) These include Plaintiffs’: (1)
unjust enrichment claims; (2) express warranty claims; and (3) implied warranty claims. The
Court will take up these challenges in turn.
a.

Unjust Enrichment Claims

22

The Court agrees with Defendant that Plaintiffs’ allegations that might implicate
tolling of the relevant statutes of limitations were conclusory and insufficiently pleaded. (D.I. 26
at 8)
23

Due to another typographical error, the SAC has two sets of paragraphs 155-59,
found on pages 64-67. Above, the Court means to refer to the first paragraph 159 and both
paragraphs 155.
24

Above the Court has dismissed the statutory consumer protection claims and
common law fraud claims without prejudice. To the extent here it is noting that certain of such
claims do not appear to be properly pleaded on other grounds, it expects Plaintiffs to take this
guidance into consideration in determining whether and/or how to re-plead certain of these
claims.
30

The Court first addresses Plaintiffs’ two unjust enrichment claims: their class-wide claim
for unjust enrichment/restitution (Count XXIII) and the unjust enrichment claim brought on
behalf of the Michigan subclass (Count XIX). Generally, to state a claim for unjust enrichment,
“a plaintiff must allege that: (1) at plaintiff’s expense (2) defendant received a benefit (3) under
circumstances that would make it unjust for defendant to retain the benefit without paying for it.”
In re Volkswagen Timing Chain Prod. Liab. Litig., Civil Action No. 16-2765 (JLL), 2017 WL
1902160, at *22 (D.N.J. May 8, 2017) (internal quotation marks and citation omitted).
In Count XXIII in the SAC, Plaintiffs allege that as a result of Defendant’s false,
deceptive and misleading actions (of the type described above), Defendant received payment for
the sale of the Class Laptops; however, since the products were unfit for their intended use,
Plaintiffs and Class Members did not receive the goods they paid for. (D.I. 19 at ¶¶ 745-50)
And Plaintiffs allege that to the extent they did not purchase a Class Laptop directly from
Defendant, they are nonetheless a victim of Defendant’s unjust enrichment. (Id. at ¶ 751)
Further, they assert that the benefits Defendant received were earned at Plaintiffs’ expense and
were not legitimately earned. (Id. at ¶ 752) Plaintiffs’ allegations in Count XIX are no different.
(Id. at ¶¶ 717-21)
Defendant responds by arguing that the unjust enrichment claim fails for five different
reasons: (1) Plaintiffs have not sufficiently asserted the claim pursuant to Rule 9(b); (2)
Plaintiffs are unable to show that any benefit conferred on Defendant was unjust; (3) Plaintiffs
from certain named states may not pursue a claim for unjust enrichment because an express
contract—the Limited Warranty—governs the subject matter; (4) certain of Plaintiffs’ claims fail
because the Class Laptop was not purchased directly from Defendant; and (5) certain of
Plaintiffs’ claims are time-barred. (D.I. 23 at 20-22)

31

With regard to the first asserted reason for dismissal—i.e., that the claim is not
sufficiently pleaded pursuant to Rule 9(b)—the Court agrees with Defendant. Plaintiffs’ only
counter-argument here was that it need not satisfy Rule 9(b) as to its claims. (D.I. 25 at 20) In
order to make out an unjust enrichment claim, as was noted above, Plaintiffs have to, inter alia,
plead facts indicating that Defendant engaged in acts “that would make it unjust for [it] to retain
the benefit [at issue] without paying for it.” Here, those “unjust” acts are alleged to be
Defendant’s purportedly fraudulent misrepresentations and omissions regarding the Class
Defect—the types of factual allegations sounding in fraud that implicate Rule 9(b). (D.I. 19 at ¶
749 (Plaintiffs alleging, in Count XXIII, that Defendant received the benefits at issue unjustly
due to having engaged “in a false, deceptive and misleading scheme”); see also id. at ¶ 754; id. at
¶ 719 (Plaintiffs noting that Count XIX is premised on Defendant’s “wrongful and fraudulent
acts and omissions as set forth above”)) Thus, Rule 9(b) applies to these claims too. See Diaz,
2022 WL 4016744, at *22; Murray Eng’g P.C. v. Remke, 17 Civ. 6267 (KPF), 2018 WL
3773991, at *15 (S.D.N.Y. Aug. 9, 2018) (citing cases); Minnie Rose LLC v. Yu, 169 F. Supp. 3d
504, 521 (S.D.N.Y. Mar. 11, 2016). And since Plaintiffs (for the reasons set out previously) did
not sufficiently plead the “what” and the “how” of such claims, their allegations in Counts XIX
and XXIII also do not satisfy Rule 9(b).
For the foregoing reasons, the Court GRANTS Defendant’s Motion as to the unjust
enrichment claims. As with Plaintiffs’ statutory consumer protection claims and common law
fraud claims, the Court does so without prejudice. 25

25

Although it need not do so (since it has already ordered the claims dismissed on
another ground), the Court again briefly here will provide guidance regarding Defendant’s four
other arguments for dismissal of the unjust enrichment claims. The second ground (i.e., that
Plaintiffs have not sufficiently pleaded that any benefit conferred on Defendant was unjust)
seems subsumed within (and thus duplicative of) Defendant’s first Rule 9(b)-related ground.
32

b.

Express Warranty Claims

The Court next addresses Plaintiffs’ express warranty claims. 26 As to these claims,
Plaintiffs allege, inter alia, that Defendant: (1) made express warranties to the public (via its
Limited Warranty) that the Class Laptops were merchantable and fit for their ordinary purposes,
and that Defendant will repair the product if needed (or replace or refund the product if repairs
are not feasible); and (2) breached those warranties by selling defective Class Laptops, and by

With regard to the third ground (i.e., that certain Plaintiffs may not pursue the claim because an
express contract—the Limited Warranty—governs the subject matter), the briefing on the issue
was sparse. That said, while a plaintiff can plead in the alternative, (D.I. 25 at 21), in order to do
so here it seems Plaintiffs would have to have pleaded some alternative facts that plausibly
suggest that the Limited Warranty did not exist or did not provide an adequate legal remedy at
law for the misconduct at issue. Cf. Villanueva v. Am. Honda Motor Co., Case No. CV 19-1390MWF (MAAx), 2019 WL 8112467, at *15-16 (C.D. Cal. Oct. 10, 2019). The Court does not see
where they did so. And so because the facts set out in the pleading suggest that both sides agree
on the existence of such a contract, the Court likely would have GRANTED the Motion as to the
unjust enrichment claims on this ground as well. See Shea, 567 F. Supp. 3d at 1024; Miller,
2018 WL 2740240, at *15. With regard to the fourth ground (i.e., that the unjust enrichment
claims on behalf of certain Plaintiffs should be dismissed because those Plaintiffs did not buy
their Class Laptop directly from Defendant), the Court can at least say the following: (1) Having
carefully reviewed the cases cited by the parties, it seems that the law of a number of the relevant
states permits such a claim to be brought even if the defendant can be said to have received an
indirect benefit from the plaintiff (or a benefit that passed through intermediaries), or that the law
of the state is at least unclear in that regard.; (2) So, if in a further amended pleading Plaintiffs
pleaded facts that explain how, as to each Plaintiff’s purchase, Defendant would have plausibly
indirectly benefitted from that purchase, this ground would not likely serve to dismiss all (or
even most) of these Plaintiffs’ unjust enrichment claims.; (3) The Court does not see how
Plaintiff Janet Purvis could state a claim in any respect, for the reason Defendant cites. (D.I. 23
at 22-23 (citing D.I. 19 at ¶ 295)) Lastly, as to the fifth ground, it appears that the unjust
enrichment claims of Plaintiffs Carole Schauer, Lorne Cosman, Terence Graner and Sabine
Miller are time-barred as pleaded. (D.I. 23 at 22; D.I. 19 at ¶¶ 154-55, 157, 162, 166, 185, 189,
271, 275) So the Court would likely have GRANTED the Motion as to these claims regarding
these Plaintiffs on this ground as well.
26

Defendant does not assert that the express warranty claims (or the implied
warranty claims discussed hereafter) are subject to Rule 9(b); the Court will thus assess them
pursuant to Rule 8’s pleading requirements.
33

insufficiently repairing defective components or by wrongly refusing to repair laptops in certain
circumstances. (D.I. 19 at ¶¶ 21-27, 630-31, 633-34, 834-35, 837-38, 947-55)
Defendant argues that Plaintiffs’ breach of express warranty claims must fail, because
Plaintiffs did not experience any alleged defect during the one-year Limited Warranty period,
and (relatedly) because they did not permit Defendant to repair or replace the laptops at issue
within that one-year period, as is required by the warranty. (D.I. 23 at 1, 23-24 (citing D.I. 24,
ex. A at 1); D.I. 26 at 7); see also D.I. 19 at ¶ 621) 27 Indeed, a manufacturer’s liability for
breach of an express warranty derives from, and is measured by, the terms of that warranty.
Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 525 (1992). Thus, typically a claim for breach of
express warranty under a state’s laws will fail if the defect in question manifested after the
expiration of the express warranty itself. See, e.g., Robinson, 2021 WL 3036353, at *16; Tabak
v. Apple, Inc., Case No. 19-cv-02455-JST, 2020 WL 9066153, at *11 (N.D. Cal. Jan. 30, 2020);
Skeen v. BMW of N. Am., LLC, Civ. No. 2:13-cv-1531-WHW-CLW, 2014 WL 283628, at *12
(D.N.J. Jan. 24, 2014).

27

In its opening brief, Defendant seemed to say that the SAC’s allegations were that
every one of the 30 named Plaintiffs “did not experience any alleged defect during the one-year
Limited Warranty period.” (D.I. 23 at 23) From the Court’s review, it seems like all but seven
of the Plaintiffs allege that they first experienced the defect after a year had passed since they
purchased or otherwise obtained their Class Laptop; the allegations as to the other seven could at
least be read to assert that they experienced the defect prior to a year’s passing. (See D.I. 19 at
¶¶ 196, 201, 223, 271, 275, 283, 287-88, 384, 388, 443, 447, 454, 458) That said, as to all but
one of those seven Plaintiffs (all but Plaintiff Trudy Letson), (id. at ¶ 201), it does not appear that
there are allegations that the Plaintiff actually provided Defendant with notice of the problem
with their Class Laptop within the one-year time period, which is required by the warranty. (D.I.
19; D.I. 23 at 24; D.I. 24, ex. A at 1) And in any event, in their answering brief, Plaintiffs did
not argue that the express warranty claims should survive as to any Plaintiff because that
Plaintiff did in fact satisfy the one-year durational requirement of the warranty. Instead, there,
Plaintiffs focused solely on their assertion that this portion of the warranty was unconscionable.
(D.I. 25 at 24-27) And so that unconscionability issue will be the Court’s focus here too.
34

Plaintiffs respond by arguing that their express warranty claims should not be dismissed
on the ground that their claims fall outside of the warranty’s durational limitations. To that end,
they retort that it “matters not that the Hinge Defect manifested after HP’s one-year warranty
period expired . . . because Plaintiffs’ adequately allege the durational limitations in HP’s
warranty are unconscionable and unenforceable.” (D.I. 25 at 24 (emphasis added))
These claims, then, will rise or fall on whether Plaintiffs sufficiently pleaded the
unconscionability (and thus, unenforceability) of the Limited Warranty. “Unconscionability has
both a procedural and a substantive element.” Tabak, 2020 WL 9066153, at *12 (describing CA
law) (internal quotation marks and citation omitted); see also Skeen, 2014 WL 283628, at *13
(describing NJ, GA and IL law). The procedural element focuses on oppression and surprise.
Tabak, 2020 WL 9066153, at *12; Skeen, 2014 WL 283628, at *13. “Oppression arises from an
inequality of bargaining power which results in no real negotiation and an absence of meaningful
choice. Surprise involves the extent to which the terms of the [agreement] are hidden” by the
complicated or convoluted language of the agreement. Tabak, 2020 WL 9066153, at *12
(internal quotation marks and citation omitted); see also Skeen, 2014 WL 283628, at *13. The
substantive element of unconscionability focuses on the actual terms of the agreement “and
evaluates whether they create overly harsh or one-sided results as to shock the conscience.”
Tabak, 2020 WL 9066153, at *12 (internal quotation marks and citation omitted); see also
Skeen, 2014 WL 283628, at *13. 28

28

The Court presumes that what it has described here as the law regarding
procedural and substantive unconscionability, as set out by the cited cases above, would not
materially differ as to any of the state laws that are relevant to the express warranty claims. In
their briefing, the parties did not suggest otherwise. (See, e.g., D.I. 25 at 25); see also Skeen,
2014 WL 283628, at *12-13.
35

The SAC’s allegations about why the Limited Warranty was procedurally and
substantively unconscionable are laid out in certain of its paragraphs relating to the breach of
express warranty allegations. (See, e.g., D.I. 19 at ¶¶ 25, 27, 633-34, 951-53) The Court will
summarize them here.
With regard to procedural unconscionability, Plaintiffs focus on the oppression element.
There they assert that there was “unequal bargaining power between Defendant and Plaintiffs[.]”
(D.I. 19 at ¶ 25; see also id. at ¶ 634) This was because at the time of purchase, Defendant had
“knowledge of the Hinge Defect in the Class Laptops” while Plaintiffs did not, and because
Defendant “manipulated the warranty” at issue to be a one-year warranty, all while knowing that
in doing so, the durational limitation would “often expire before the defect materialized” (which
Plaintiffs did not realize). (Id. at ¶¶ 25-26, 633-34, 952; D.I. 25 at 26) This practice left
Plaintiffs with “no other options” to negotiate better terms for the warranty. (D.I. 19 at ¶ 25)
As to substantive unconscionability, Plaintiffs are not suggesting that a one-year warranty
is per se wrongful. See, e.g., Popham v. Keystone RV Co., CAUSE NO.: 3:15-CV-197-TLS,
2016 WL 4993393, at *7 (N.D. Ind. Sept. 19, 2016) (“A one-year durational warranty is not per
se unconscionable.”); Brothers v. Hewlett-Packard Co., No. C-06-02254 RMW, 2006 WL
3093685, at *8 (N.D. Cal. Oct. 31, 2006) (finding that a time limitations in express warranties
are not themselves unconscionable). Instead, Plaintiffs are alleging that what is unduly “harsh

Additionally, in their briefing, Plaintiffs suggest that parties in their shoes must plead
both procedural and substantive unconscionability. (D.I. 25 at 25-26) That seems to be the case
at least in many of the states at issue here, see, e.g., Snowdy v. Mercedes-Benz USA, LLC, Civil
Action No. 23-1681 (ES) (AME), 2024 WL 1366446, at *23 & n.15 (D.N.J. Apr. 1, 2024);
Tabak, 2020 WL 9066153, at *12 & n.12, though not every state’s law appears to require this,
see, e.g., Skeen, 2014 WL 283628, at *14; Brown v. Louisiana-Pacific Corp., Case No. 4:12-cv00102-SMR-HCA, 2014 WL 11513168, at *13 (S.D. Iowa Sept. 18, 2014). But for our
purposes, the Court will assume Plaintiffs are correct in this regard as to all of the varying states’
laws at issue.
36

and shocks the conscience” is that Defendant intentionally crafted a one-year Limited Warranty
in light of the fact that they: (1) knew that the Class Laptops were defective; (2) “failed to
disclose” that fact to Plaintiffs; and (3) “continu[ed] to market misrepresentations of the
performance properties” of the laptops to Plaintiffs. (D.I. 19 at ¶¶ 27, 634, 951; D.I. 25 at 26)
The judicial opinions regarding what allegations are sufficient to plead unconscionability
of this type are not all of like mind. Indeed, the parties cite to divergent lines of cases in this
regard. One line tends to rely on the decision in Carlson v. Gen. Motors Corp., 883 F.2d 287
(4th Cir. 1989), while the other tends to cite to the decisions in Duquesne Light Co. v.
Westinghouse Elec. Corp., 66 F.3d 604 (3d Cir. 1995) and Abraham v. Volkswagen of Am., Inc.,
795 F.2d 238 (2d Cir. 1986). Generally, the cases cited by Plaintiffs follow Carlson, whereas the
cases cited by Defendant rely on Duquesne and Abraham.
In Carlson, the case involved claims by plaintiffs that the defendant, General Motors
Corporation (“GM”), produced automobile engines with certain alleged defects; the plaintiffs
claimed that GM was liable in various ways for those defects. 883 F.2d at 289. One difficulty
for the plaintiffs was that GM’s express and implied warranties had two- or three-year durational
limitations (depending on the model year of the engine at issue). Id. at 290. Certain plaintiffs
had challenged the durational limitations relating to the implied warranties as being
unconscionable pursuant to federal law; the district court had denied those challenges (finding
the limitations to be “‘reasonable’” and “‘conscionable’”) and dismissed the claims. Id. at 29293.
However, the United States Court of Appeals for the Fourth Circuit overturned that
decision, finding that the plaintiffs had adequately pleaded the unconscionability of the
limitations at issue. As to procedural unconscionability, for example, the Carlson Court noted

37

that the plaintiffs alleged that due to “unequal bargaining power” between the parties and “lack
of effective warranty competition among dominant firms” in the industry, consumers “had no
meaningful alternative to accepting [the defendant’s] attempted limitation of the duration of the
implied warranty.” Id. at 294 (internal quotation marks and citations omitted). The Fourth
Circuit found that these facts, “if proven, clearly would establish unconscionability.” Id.
(internal quotation marks and citation omitted). The Court additionally stated that “[p]erhaps
most significantly, plaintiffs also alleged that GM knew of the inherent defects in its diesel
engines—but failed to warn its customers of the consequential likelihood of ‘catastrophic
failures.’” Id. (citation omitted). It found that such assertions, coupled with the fact that GM
imposed the durational limitations at issue on the warranties with knowledge that “the weaker
party will be unable to receive substantial benefits from the contract[,]” was enough to plead
unconscionability. Id. at 294 (internal quotation marks and citation omitted); see also id. at 296
(“Here, proof that GM knew of and failed to disclose major, inherent product defects would
obviously suggest that its imposition of the challenged ‘durational limitations’ on implied
warranties constituted ‘overreaching,’ and that the disclaimers themselves were therefore
‘unconscionable[,]’” particularly where the “buyer has ‘no notice of [or] ability to detect’ the
problem[.]”) (citation omitted).
The unconscionability cases that cite to and rely on Carlson generally take the following
logical path: (1) if the plaintiff is able to plausibly allege that the defendant knew of the alleged
defect in the product at the time of contracting, and that the defect would typically manifest after
the warranty had run (but did not disclose this); and (2) if the plaintiff alleges (as to procedural
unconscionability) that the defendant was in a superior position with regard to negotiations over
the contract at issue (e.g., in light of the fact that the defendant knew of the defect at issue, while

38

the plaintiff did not, and/or in light of other imbalances in the parties’ respective negotiating
positions); then (3) at the pleading stage, the plaintiff has sufficiently alleged that the durational
terms of the warranty are unconscionable. See McIntyre v. Am. Honda Motor Co., Case No.
2:23-cv-7024-SPG-BFM, 2024 WL 3324622, at *11 (C.D. Cal. July 3, 2024); Bieda v. CNH
Indus. Am. LLC, 518 F. Supp. 3d 863, 871-73 (W.D. Pa. 2021); Singh v. Lenovo (U.S.) Inc., 510
F. Supp. 3d 310, 322-24 (D. Md. 2021); Szymczak v. Nissan N. Am., Inc., No. 10 CV 7493(VB),
2011 WL 7095432, at *10 (S.D.N.Y. Dec. 16, 2011); Cooper v. Samsung Elecs. Am., Inc., Civil
Action No. 07-3853 (JLL), 2008 WL 4513924, at *3 (D.N.J. Sept. 30, 2008); Payne v. Fujifilm
U.S.A., Inc., Civil Action No. 07-385(JAG), 2007 WL 4591281, at *5 (D.N.J. Dec. 28, 2007);
Bussian v. DaimlerChrysler Corp., 411 F. Supp. 2d 614, 623 (M.D.N.C. 2006).
Next the Court will turn to the Duquesne/Abraham line of cases. Duquesne did not
address the question of unconscionability of a warranty per se. Instead, there the Third Circuit
reviewed a district court’s decision to dismiss a breach of express warranty claim—as to a
warranty that required a defect to manifest itself within one year in order that it be covered. 66
F.3d at 616. The plaintiff argued that the warranty at issue should protect it against even those
defects that were not discovered until after the warranty period expired, but the Duquesne Court
found no reason to deviate from the “general rule” “that ‘an express warranty does not cover
repairs made after the applicable time . . . has elapsed’” and that “‘latent defects discovered after
the term of the warranty are not actionable.’” Id. (quoting Abraham, 795 F.2d at 250). For these
propositions, Duquesne relied on Abraham. Id.
In Abraham, the plaintiffs argued “that a defect discovered outside the time or mileage
limits of the applicable written warranty, but latent before that time, may be the basis of a valid
express warranty claim if the warrantor knew of the defect at the time of sale.” 795 F.2d at 249.

39

The United States Court of Appeals for the Second Circuit rejected this argument, explaining
that “virtually all product failures discovered in automobiles after expiration of the warranty can
be attributed to a ‘latent defect’ that existed at the time of sale or during the term of the
warranty.” Id. at 250. Further, the Abraham Court stated that “[m]anufacturers always have
knowledge regarding the effective life of particular parts and the likelihood of their failing within
a particular period of time” and that “manufacturers must predict rates of failure of particular
parts in order to price warranties and thus can always be said to ‘know’ that many parts will fail
after the warranty period has expired.” Id. The Abraham Court concluded, in affirming the
district court’s denial of the plaintiff’s express warranty claim, that “[a] rule that would make
failure of a part actionable based on such ‘knowledge’ would render meaningless time/mileage
limitations in warranty coverage.” Id.
A number of district courts addressing this issue have relied on Duquesne or Abraham; in
doing so, they have tended to take a stricter approach as to what a plaintiff must allege in order to
plausibly establish unconscionability. These opinions tend to conclude that it is not sufficient to
simply allege that a defendant knew (while the plaintiff did not) of a defect in the product at
issue at the time of sale/warranty, and that the duration of the warranty may expire before the
defect manifests. In support, they note that the Duquesne Court and/or the Abraham Court did
not appear to find this type of scenario to be troubling when assessing breach of warranty claims;
thus, these courts conclude that such a scenario should not indicate unconscionable behavior.
See, e.g., Alban v. BMW of N. Am., Civ. No. 09-5398 (DRD), 2011 WL 900114, at *9 (D.N.J.
Mar. 15, 2011) (concluding that “the general rule, stated in Duquesne, prohibiting breach of
warranty actions premised on defects that did not arise until after the warranty expired applies to
Plaintiff’s claims regardless of his assertion that BMW knew that his vehicle was defective

40

before the time-limit took effect” and concluding that the plaintiff’s “bare-bones allegations that
he had no meaningful choice in determining the time and mileage limitation, and that a gross
disparity in bargaining power existed between him and BMW[,] are no more than conclusions
[that] are not entitled to the assumption of truth”) (internal quotation marks and citations
omitted); Ponzio v. Mercedes-Benz USA, LLC, 447 F. Supp. 3d 194, 257 (D.N.J. 2020) (citing
Abraham and concluding that “conclusory allegations of substantive unconscionability based on
a defendant[’]s knowledge of a latent defect are insufficient to withstand a motion to dismiss”);
Callen v. Daimler AG, CIVIL ACTION FILE NO. 1:19-CV-1411-TWT, 2020 WL 10090879, at
*10 (N.D. Ga. June 17, 2020) (relying on Abraham for the “general rule [] that a manufacturer’s
knowledge of a defect cannot, without more, form the basis of a valid post-expiration express
warranty claim”); In re Caterpillar, Inc., C13 & C15 Engine Prods. Liab. Litig., No. 1:14-cv3722 (JBS-JS), 2015 WL 4591236, at *21 (D.N.J. July 29, 2015) (explaining that the “prevailing
approach” is to “reject[] conclusory allegations of unconscionability based on knowledge of a
latent defect” and pointing to cases relying on Duquesne and/or Abraham).
As noted above, Duquesne is a Third Circuit opinion, and the Third Circuit’s law would
control in this case. Therefore, the Court must look hard at what the Third Circuit was saying in
Duquesne. And the Court agrees with the second line of cases discussed above that the tenor of
Duquesne—and its reliance on the decision in Abraham—suggest that the Third Circuit would be
unlikely to deem allegations about unconscionability sufficient, if all that was alleged was that:
(1) a manufacturer knew of a defect in its product; and (2) that manufacturer entered into express
warranty agreements with its customers wherein the warranty’s duration could expire before the
defect began to rear its head. Dewey v. Volkswagen AG, 558 F. Supp. 2d 505, 520 (D.N.J. 2008)
(concluding essentially the same).

41

That said, in the Court’s view, where a plaintiff pleads not only that the manufacturer
knew of the existence of the defect and offered a warranty that often expired before the defect
manifested—but also that the manufacturer intentionally took steps to manipulate the durational
limitation in the warranty for the very purpose of ensuring that it expired before the defect
manifested, without telling unsuspecting customers—that seems like we are getting into a
different, more substantive allegation. Moreover, here the allegation is that Defendant did this
all while making false statements or omissions to those same customers about the product’s
performance—allegations that seem to underscore the malign intent behind the conduct at issue.
These alleged acts of intentional deception could plausibly suggest substantive
unconscionability—i.e., the type of behavior that, if true, could “shock the conscience.”
Moreover, the Court sees how such conduct could plausibly demonstrate procedural
unconscionability. The SAC describes a scenario wherein the parties had unequal bargaining
power (i.e., a power disparity regarding how warranty terms are established, and a power
disparity with regard to knowledge of the key defect at issue and its relationship to the
warranty’s durational limitation). Indeed, a number of courts have found a plaintiff to have
sufficiently pleaded unconscionability when it plausibly made just these types of allegations. See
Gelis v. Bayerische Motoren Werke Aktiengesellschaft, No. 2:17-cv-07386, 2018 WL 6804506,
at *6 (D.N.J. Oct. 30, 2018) (concluding that “[g]iven both (1) Plaintiffs’ relative lack of power
and sophistication and (2) allegations that BMW purposefully manipulated the warranty
provision through their superior knowledge, Plaintiffs have sufficiently ple[d] an express
warranty claim”); Merkin v. Honda N. Am., Inc., Civil Action No: 17-cv-03625 (PGS)(DEA),
2017 WL 5309623, at *5 (D.N.J. Nov. 13, 2017) (explaining that “a manufacturer’s knowledge
that a part may ultimately fail does not, alone, make a time/mileage limitation unconscionable”

42

but that “where the plaintiff has alleged that the manufacturer has knowingly manipulated the
warranty terms to avoid coverage, courts in this district have been more inclined to find the
warranty unconscionable”); Skeen, 2014 WL 283628, at *14 (finding that the plaintiffs
“adequately alleged substantive unconscionability by claiming that Defendants knew the timing
chain tensioners would fail and manipulated the warranty terms to avoid paying for it[,]” noting
that the durational limitations on the express warranty were not per se unconscionable, “[b]ut the
allegation of manipulation is sufficient”); cf. Robinson, 2021 WL 3036353, at *17 & n.41
(concluding that unconscionability was insufficiently alleged, but in part because the plaintiffs
made no allegation that the defendants intentionally manipulated the warranty at issue, such that
it would expire before the relevant defect came to light); Taylor v. BMW of N. Am., LLC, Civ.
No. 20-1994 (KM)(JBC), 2021 WL 1186777, at *11 (D.N.J. Mar. 29, 2021) (dismissing the
plaintiffs’ unconscionability claims where the plaintiffs only alleged the defendant’s knowledge
of the defect—and did not allege that “Defendants manipulated the CPO Warranty so that the
alleged defects would emerge after the warranty period”); T.J. McDermott Transp. Co. v.
Cummins, Inc., Civ. No. 14-04209 (WHW)(CLW), 2015 WL 1119475, at *9 (D.N.J. Mar. 11,
2015) (similar).
Here (as was noted above), in the SAC Plaintiffs have made just these types of
allegations. That is, not only do they plead facts relating to Defendant’s alleged pre-sale
knowledge of the Hinge Defect (and Defendant’s allegedly false statements or omissions about
that subject matter), but they also assert that at the same time, Defendant took steps to
“manipulate[] the warranty so it often expired before the defect materialized and the customer
became aware of it.” (D.I. 19 at ¶¶ 26-27) And there are additional allegations that render this
assertion more than conclusory. As was previously discussed, the SAC not only pleads that

43

Defendant knew of the Hinge Defect, but it also includes detailed allegations suggesting that the
defect was a substantial issue for Defendant that prompted an extensive number of complaints—
and that many of those complaints were found on Defendant’s own website. (Id. at ¶¶ 17, 32,
91-98; D.I. 25 at 9-10); see also supra at 29. Those facts, in turn, could render it more plausible
that the Hinge Defect was such a significant problem and of such magnitude that Defendant
might in fact have intentionally altered its warranty term, all in order to box out affected
customers from seeking (possibly expensive) redress for this problem. This is enough to plead
substantive unconscionability.
Additionally, the SAC pleads enough to plausibly allege procedural unconscionability.
As was noted above, Plaintiffs assert that because Defendant had knowledge of the Hinge Defect
and of its own manipulation of the warranty terms (while Plaintiffs did not), then there was
unequal bargaining power between the parties. (D.I. 19 at ¶ 25) They also allege that Plaintiffs
had no other real options to negotiate the terms of the warranty, (id.), which seems plausible, in
light of the nature of the transaction and the warranty at issue. 29
For the foregoing reasons, then, the Court DENIES Defendant’s Motion as to the express
warranty claims.

29

Defendant argues that because Plaintiffs had the option of purchasing an extended
warranty from either HP, the involved retailer or other sources, then Plaintiffs cannot show
procedural unconscionability. (D.I. 23 at 24) In certain circumstances, courts have found that
where a plaintiff has alternative options—either to purchase an extended warranty or to purchase
the product from another manufacturer—this factored into a conclusion that the plaintiff had not
sufficiently made out a claim for procedural unconscionability. See, e.g., Fisher v. Honda N.
Am., Inc., No. LA CV13–09285 JAK(PLAx), 2014 WL 2808188, at *9 (C.D. Cal. June 12,
2014); Majdipour v. Jaguar Land Rover N. Am., LLC, Civ. No. 2:12-cv-07849 (WHW), 2013
WL 5574626, at *20 (D.N.J. Oct. 9, 2013). But here, the presence of this factor is not enough to
warrant dismissal of Plaintiffs’ claims. The Court does not see how it helped Plaintiffs from a
procedural standpoint to know that they could purchase an extended warranty, if Plaintiffs
allegedly did not know that Defendant had intentionally manipulated the duration of the Limited
Warranty—such that it would often expire before the Hinge Defect manifested.
44

c.

Implied Warranty Claims

The Court next turns to Plaintiffs’ implied warranty claims (which, as noted above, are
brought via 12 different counts). It will first summarize the law with regard to those claims, and
will then address the merits.
The implied warranty of merchantability, which appears to be what is at issue here in all
of the implied warranty claims, (D.I. 23 at 25 & n.25; D.I. 25 at 4 n.3 & 28), does not impose a
general requirement that the goods at issue precisely fill the expectations of the buyer; instead it
only “provides for a minimum level of quality.” Wesley v. Samsung Elecs. Am., Inc., Civil
Action No. 20-cv-18629, 2021 WL 5771738, at *7 (D.N.J. Dec. 3, 2021) (internal quotation
marks and citations omitted, emphasis added) (discussing the law as it relates to NJ, IL and FL
state law claims); see also Stearns v. Select Comfort Retail Corp., No. 08-2746 JF, 2009 WL
1635931, at *8 (N.D. Cal. June 5, 2009) (discussing the law relating to CA state law claims). It
is breached when “the product at issue [is] defective or not fit for the ordinary purpose for which
it was intended[]” and where the primary use of the product is impacted by the alleged defect.
Wesley, 2021 WL 5771738, at *7 (internal quotation marks and citation omitted) (distinguishing
from cases where courts found that the implied warranty of merchantability was not breached
because the defect impacted a use “incidental to the product’s ordinary purpose[]”); see also
Stearns, 2009 WL 1635931, at *8; cf. Stewart v. Electrolux Home Prods., Inc., 304 F. Supp. 3d
894, 913 (E.D. Cal. 2018) (stating that “as long as a car can provide safe, reliable transportation,
it is generally considered merchantable even if certain features[,] such as a navigation system do
not function properly[]”). At the same time, the alleged defect does not need to preclude any and
all use of the product at all for the warranty to be violated; again, the question is whether the

45

defect does not permit the product to be used for its ordinary purpose or function. Stearns, 2009
WL 1635931, at *8. 30
Turning next to Plaintiffs’ allegations, the SAC alleges, inter alia, that that Defendant
impliedly warranted to Plaintiffs that the Class Laptops were merchantable, but that it breached
that implied warranty by producing laptops that contained the latent Hinge Defect. (See, e.g.,
D.I. 19 at ¶¶ 9, 614-24, 956-65) The SAC asserts that the Class Laptops are unfit for the
ordinary purpose as to which a laptop computer is used, because when the defective hinges break
and cannot support the laptops’ screen, the laptops “are unable to be used as intended, that is [as]
a portable computer that can easily open and close for mobility, and in the case of 360 models,
reconfigure to multiple angles and be used as a tablet or laptop.” (Id. at ¶ 6; see also id. at
¶¶ 620, 958) In other words, Plaintiffs allege that the Class Laptops are intended to be portable,
that Defendant marketed the Class Laptops as such, and yet because of the Hinge Defect—which
renders the “user’s ability to [] open the laptop to utilize the device, [] close or transport the
laptop, or [] transition the configuration of the laptop . . . dramatically reduced, or lost
altogether”—the Class Laptops do not provide for even a minimum level of quality and cannot
be used for the ordinary purpose for which they were intended. (Id. at ¶ 15; see also id. ¶¶ 6-8,
10, 13, 16)
In response, Defendant’s primary argument for dismissal is that Plaintiffs were in fact
able to use their Class Laptops “for months or years after purchase” and so “they have no viable
claim for breach of implied warranty.” (D.I. 23 at 25-26) On this score, the SAC does allege
that every named Plaintiff used their laptop for many months (most for over a year and some for

30

Here, once again, the Court presumes that the law it has set out above applies to
all of the implied warranty claims at issue, and the parties did not suggest otherwise in their
briefing.
46

many years) before the Hinge Defect first manifested. (D.I. 19 at ¶ 136 (approximately 18
months of use before Hinge Defect manifested); id. at ¶ 147 (same); id. at ¶ 159 (approximately
12 months); id. at ¶ 166 (approximately 18 months); id. at ¶¶ 177-78 (approximately 24 months);
id. at ¶ 189 (approximately 12 months); id. at ¶ 200 (approximately 6 months); id. at ¶ 212
(approximately 30 months); id. at ¶ 223 (approximately 6 months); id. at ¶¶ 235-39
(approximately 44 months); id. at ¶ 251 (approximately 18 months); id. at ¶ 263 (approximately
30 months); id. at ¶ 275 (approximately 6 months); id. at ¶ 287 (some unstated number of
months); id. at ¶ 297 (approximately 24 months); id. at ¶ 308 (approximately 12 months); id. at ¶
319 (approximately 32 months); id. at ¶ 330 (approximately 18 months); id. at ¶ 341
(approximately 19 months); id. at ¶ 353 (approximately 36 months); id. at ¶ 365 (approximately
13 months); id. at ¶ 376 (approximately 14 months); id. at ¶ 388 (approximately 12 months); id.
at ¶ 399 (approximately 13 months); id. at ¶¶ 411-13 (approximately 18 months); id. at ¶¶ 422-23
(approximately 29 months); id. at ¶ 435 (approximately 48 months); id. at ¶ 447 (approximately
7 months); id. at ¶ 458 (approximately 11 months)) Even after the defect manifested, as to
nearly every such named Plaintiff, there is no assertion that they could not or did not use the
laptop for computing purposes thereafter. Instead, there is only the assertion that the laptop
could not be easily transported or used in a portable manner due to the defect. (Id.) Indeed, as
to those Plaintiffs, a fair reading of the allegations is that they could and did continue to use the
laptop for computing purposes even after the defect reared its head. (Id.)
Assessing this issue was challenging, in that in the relevant sections of the parties’ briefs,
they cite to almost no court opinions: (1) that were issued at the motion to dismiss stage; (2) that
address a claim for breach of the implied warranty of merchantability; and (3) that address
whether an alleged defect in a laptop rendered the product unfit for its ordinary purpose or its

47

primary use. But plenty of opinions involving just those circumstances are out there. And in
researching this question, the Court has reviewed many of them. Those opinions are generally
supportive of Defendant’s argument for dismissal of these claims.
These opinions almost uniformly indicate the following: (1) that the “ordinary purpose”
or primary use of a laptop computer is personal computing, i.e., of permitting a user to make use
of the computer’s processing ability and/or to view various items or media on the computer; and
(2) if a defect (like the loss of portability here) renders a laptop more difficult to use, but yet still
usable for basic computing purposes, this will not render the laptop unfit for its ordinary purpose
or primary use. See, e.g., Taleshpour v. Apple Inc., Case No. 5:20-cv-03122-EJD, 2021 WL
1197494, at *13 (N.D. Cal. Mar. 30, 2021) (concluding that a laptop’s ordinary purpose was use
for computing purposes, and finding that the defect at issue—loss of use of the display
backlighting system, which severely affected the user’s ability to view text and images on the
monitors—did not inhibit use of the laptop for ordinary purposes); In re MacBook Keyboard
Litig., Case No. 5:18-cv-02813-EJD, 2019 WL 6465285, at *10 (N.D. Cal. Dec. 2, 2019)
(agreeing that a laptop is unfit for its ordinary purpose if one cannot type on it); Thornton v.
Micro-Star Int’l Co., Case No. 2:17-cv-03231-CAS-AFMx, 2018 WL 5291925, at *10 (C.D.
Cal. Oct. 23, 2018) (finding that a laptop’s ordinary purpose was use for gaming purposes, and
concluding that the laptop’s failure to allow for “upgradeability” did not render it unfit for
ordinary use); Miller v. Fuhu Inc., No. 2:14-cv-06119-CAS(ASx), 2015 WL 2085490, at *14
(C.D. Cal. May 4, 2015) (concluding that a laptop was still fit for ordinary use, where the
allegations were that the laptop could be used for computing purposes, but yet still suffered
problems when recharging and could not reliably be used when plugged into a power source); In
re Sony Vaio Comput. Notebook Trackpad Litig., Case No. AJB 09cv2109 AJB (MDD), 2013

48

WL 12116137, at *16 (S.D. Cal. Sept. 25, 2013) (“Common sense indicates a purchaser’s
ordinary, intended purpose for a laptop is personal computing[.]”); Kacsuta v. Lenovo (United
States) Inc., Case No.: SACV 13-00316-CJC(RNBx), 2013 WL 12126775, at *3 (C.D. Cal. July
16, 2013) (concluding that although the laptops at issue were difficult to connect to Wi-Fi and
had very slow internet speeds, that did not mean that they were unfit for ordinary use, since users
were still able to use the laptops to do word processing, consume non-internet-based media and
connect to the internet in certain ways); Elias v. Hewlett-Packard Co., 903 F. Supp. 2d 843, 852
(N.D. Cal. 2012) (concluding that laptop computers were not unfit for ordinary use, where they
may fail to boot, randomly restart, generally underperform, have software failure, overheat, crash
and even catch fire, as the computers could still be used as computers as were not
unmerchantable); Kent v. Hewlett-Packard Co., No. 09-5341 JF (PVT), 2010 WL 2681767, at *4
(N.D. Cal. July 6, 2010) (finding that laptops that were prone to “locking up” when turned on,
which could cause a loss of data, were still fit for their ordinary purpose or use, as the plaintiffs
did not allege that they were unable to use the computers). 31 Moreover, these cases suggest that
where a purchaser has been able to use a laptop computer and its processing power for a period
of at least 18 months, then an implied warranty of merchantability claim cannot stand. See, e.g.,
Ocampo v. Apple Inc., Case No. 5:20-cv-05857-EJD, 2022 WL 767614, at *6 (N.D. Cal. Mar.
14, 2022) (dismissing the plaintiffs’ implied warranty claims where they alleged that they used
their computers “far past the express and implied warranty period[,]” i.e., for two or three years);

31

Cf. Williamson v. Apple, Inc., No. 5:11-cv-00377 EJD, 2012 WL 3835104, at *8
(N.D. Cal. Sept. 4, 2012) (dismissing claims regarding the implied warranty of merchantability
as to an iPhone 4, where the plaintiff’s contention was that the phone was not fit for its ordinary
purpose because its glass housing was not ultradurable, and concluding that the ordinary purpose
of such a product was for use as a smartphone, and where there was no allegation that the
product at issue could not perform any expected “phone functions”).
49

Taleshpour, 2021 WL 1197494, at *13 (concluding that the ability to use the laptop for
computing purposes for nearly three years, despite the presence of a defect, meant it was still fit
for basic use); Marcus v. Apple Inc., No. C 14-03824 WHA, 2015 WL 151489, at *9 (N.D. Cal.
Jan. 8, 2015) (concluding that the plaintiffs had failed to adequately plead a breach of the implied
warranty of merchantability, because the complaint alleged that one plaintiff’s logic board had
not failed until 18 months after purchase, while a second plaintiff’s logic board (having once
been fixed by the defendant) did not fail until approximately two years after purchase; since both
plaintiffs were “able to adequately use their computers for approximately 18 months and two
years, respectively[,]” no claim was viable); Deburro v. Apple, Inc., No. A-13-CA-784-SS, 2013
WL 5917665, at *7 (W.D. Tex. Oct. 31, 2013) (concluding that the laptops were fit for their
ordinary purpose, where they were able to be used for computing purposes for up to five years
before failure).
In this case, as noted above, the SAC alleges that about half of the Plaintiffs did not
experience any defect in their laptops until 18 months had passed. And it indicates that no matter
when the alleged defects manifested, all (or very nearly all) of the Plaintiffs were still able to use
their laptops as functioning computers (that is, to perform computer functions) thereafter. In
light of this, and line with the guidance from the caselaw cited above, the Court concludes that
the Motion should be GRANTED as to Plaintiffs’ implied warranty claims.
In terms of whether to permit amendment, as the Court noted above, the SAC’s
allegations indicate that all or nearly all of the named Plaintiffs could use their laptops for
computing purposes both before and after any defect manifested. That said, the allegations as to
a few Plaintiffs—Plaintiffs Carole Schauer, Terence Graner, Robert DiMartino and Deborah
Thelen—seem like they could be different. As to these Plaintiffs, the SAC could be read to

50

indicate that they were only able to use their laptops for a relatively short amount of time before
any defect manifested, and that once the defect manifested, they were unable to use their laptops
at all (or “substantially” at all) for computing purposes. More specifically:
•

Plaintiff Schauer alleges that approximately 12 months after
purchase, the Hinge Defect manifested in her laptop, which
caused the screen to separate from the lid of the laptop,
rendering her laptop “no longer usable in any capacity.” (D.I.
19 at ¶ 159)

•

Plaintiff Graner alleges that approximately 12 months after
purchase, the Hinge Defect manifested in his laptop, making it
difficult to open and close. Approximately five months later,
the hinge snapped, rendering his laptop “substantially
unusable.” (Id. at ¶ 189)

•

Plaintiff Di Martino alleges that approximately 14 months after
purchase of his two laptops, the Hinge Defect manifested,
which resulted in the computer’s screens separating from the
base of the laptop; this rendered one of his laptops “so useless
that [he] had no choice but to discard it.” (Id. at ¶ 376)

•

Plaintiff Thelen alleges that approximately 12 months after
purchase, the Hinge Defect manifested in her laptop, resulting
in the right hinge snapping so that now the laptop is only held
together by wiring, rendering her laptop “wholly unusable.”
(Id. at ¶ 388)

As to these four Plaintiffs, it seems possible they could explicitly allege that once the
defect manifested, they were unable to use their laptops even for computing purposes. But in the
SAC, Plaintiffs were not attempting to address this particular issue; instead, they were focused
on explaining when they lost portability as to their laptops. Thus, it is unclear whether, given the
chance to replead, these Plaintiffs would be able to make out a plausible claim (or whether it
would be even viable for Plaintiffs to pursue class action-related claims regarding the implied
warranty of merchantability, when so few of the named Plaintiffs’ allegations here could even
possibly support such a claim).
51

But the Court is not certain that re-pleading as to these Plaintiffs would be a nullity. And
so it will order that: (1) dismissal of the implied warranty claims as to the remainder of the
Plaintiffs shall be with prejudice, but (2) dismissal of such claims as to the four Plaintiffs listed
above shall be without prejudice to renew (with allegations that more explicitly speak to the legal
issues regarding the implied warranty of merchantability described herein). 32
C.

Defendants’ Arguments Regarding the Class Allegations

Lastly, Defendant moves to strike Plaintiffs’ class allegations on various grounds. (D.I.
23 at 28-32) More specifically, Defendant argues that: (1) Plaintiffs’ allegations cannot satisfy
Federal Rule of Civil Procedure 23’s ascertainability, predominance and commonality
requirements; (2) Plaintiffs’ nationwide common law claims for fraudulent concealment and
unjust enrichment are defective for various reasons; (3) Plaintiffs’ class definitions are
overbroad; and (4) there are a few state-specific reasons for dismissal of certain claims. (Id.)
The Court will begin by addressing the legal standard for a Rule 12(f) motion to strike and will
then address the disposition of these issues.
1.

Legal Standard

Pursuant to Federal Rule of Civil Procedure 12(f), a court “may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.
Civ. P. 12(f). In doing so, “[t]he court may act: (1) on its own; or (2) on motion made by a party
either before responding to the pleading or, if a response is not allowed, within 21 days after

32

In light of the nature of the Court’s grant of the Motion as to these claims, it does
not make sense to address Defendant’s additional arguments for dismissal of the implied
warranty claims. Those are state-specific grounds, (D.I. 23 at 26-27), nearly all of which will not
be relevant to the remaining Plaintiffs who could possibly have viable claims.
52

being served with the pleading.” Id. Motions to strike are generally disfavored. Symbol Techs.,
Inc. v. Aruba Networks, Inc., 609 F. Supp. 2d 353, 356 (D. Del. 2009).
2.

Discussion

For three reasons, the Court will DENY the Motion as it relates to the class allegations.
First, and most importantly, the Third Circuit has previously opined that in “most cases”
a district court acts in a “premature” manner if it determines “whether the class could potentially
fit within Rule 23 . . . on a motion to dismiss[]” when “there had been no motion for class
certification and no discovery[.]” Landsman & Funk PC v. Skinder-Strauss Assocs., 640 F.3d
72, 93 (3d Cir. 2011), vacated on other grounds by No. 09–3532, 2012 WL 2052685 (3d Cir.
Apr. 17, 2012). Making such a determination requires the district court to conduct “a rigorous
analysis[,]” that will often require it to “delve beyond the pleadings to determine whether the
requirements for class certification are satisfied.” Id. (internal quotation marks and citations
omitted). In line with this, motions to strike class allegations at the pleading stage are generally
disfavored in this District and in the other districts in the Third Circuit. See, e.g., Talley v. Gen.
Motors, LLC, No. 1:20-cv-01137-SB, 2021 WL 7209448, at *9 (D. Del. Nov. 26, 2021)
(“Generally, motions to strike before discovery are disfavored.”); Davis v. D.R. Horton Inc.,
C.A. No. 19-1686-LPS-JLH, 2020 WL 6042091, at *2 (D. Del. Oct. 13, 2020) (same); Martin v.
Ford Motor Co., 765 F. Supp. 2d 673, 680 (E.D. Pa. 2011) (same).
Second, some of the issues raised here by Defendant are meaty, and yet they were only
addressed in a few sentences in this portion of the briefing. This did not permit a robust
evaluation of the issues, which could be more substantively addressed in class certification
briefing.

53

Third, it seems very possible that Plaintiffs may seek leave to amend. If they do, a
proposed new pleading might look materially different in some regards. So even as to certain
issues raised here by Defendants that appear to have merit (like the issue about how the class
allegations are overbroad), (see D.I. 26 at 17), waiting to address them until a later stage might
obviate the need to address them at all.
III.

CONCLUSION
For the reasons set forth in this Memorandum Opinion, the Court GRANTS-IN-PART

and DENIES-IN-PART the Motion.
An appropriate Order will issue.

54