Mednick v. Precor Inc

Filing 145

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 9/27/2016:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

GARY MEDNICK and STEVEN
BAYER, Individually and on
Behalf of All Others
Similarly Situated,

Case No. 14 C 3624
CONSOLIDATED ACTION

Plaintiffs,
Judge Harry D. Leinenweber
v.
PRECOR, INC., a Delaware
Corporation,
Defendant.

MEMORANDUM OPINION AND ORDER
Before

the

Court

is

the

parties’

dispute

over

whether

Plaintiffs should have the Court’s permission to file an Amended
Complaint [ECF Nos. 130, 141].

For the reasons stated herein,

Plaintiffs are given leave to amend their Complaint subject to
some limitations.
I.

LEGAL STANDARD

A grant or denial of a motion to amend a pleading is within
the discretion of the district court judge.

Foman v. Davis, 371

U.S.

Rule

178,

182

(U.S.

1962).

Nonetheless,

15(a)

of

the

Federal Rules of Civil Procedures instructs judges to “freely
give leave when justice so requires.”

Thus, in the absence of

“undue delay, bad faith or dilatory motive on the part of the

movant,

repeated

failure

to

cure

deficiencies

by

amendments

previously allowed, undue prejudice to the opposing party by
virtue

of

allowance

of

the

amendment,

[or]

futility

amendment,” leave to amend should and will be given.

of

Foman, 371

U.S. at 182.
There is still the question of what evidence the Court may
consider when reviewing a motion for leave to amend a complaint.
Plaintiffs urged that the Court look solely to the pleadings and
determine if their claim is “plausible on its face.”
Reply Mem. Supp. Mot. Am. Compl., ECF No. 141, p.5.)

(Pls.’

Plaintiffs

say that this is because “a proposed amendment is futile only if
it could not withstand a Rule 12(b)(6) motion to dismiss.”
p.6 (internal quotation marks omitted).

Id.,

But the very case that

Plaintiffs cite for this proposition, Peoples v. Sebring Capital
Corp., acknowledged that the above statement is only “generally”
true. Peoples v. Sebring Capital Corp., 209 F.R.D. 428, 430 n.1
(N.D. Ill. 2002).
not

true

when

Peoples explicitly noted that the statement is

courts

summary judgment.
consider
considered

have

See, id.

extrinsic
in

leave to amend.

before

them

a

motion

for

In such circumstances, courts may

materials,

summary
Id.

pending

judgment,

indeed
in

the

ruling

on

same
the

materials
motion

for

While there is no summary judgment motion

before this Court, the Court has already decided a Motion on
Class Certification.

As such, the Court will consider the same
- 2 -

materials

in

deciding

this

Motion

as

it

did

for

class

certification.
II.

BACKGROUND

The factual background of this case was discussed at length
in the Court’s Memorandum Opinion denying class certification on
June 10, 2016.
of

the

facts

See, ECF No. 125, p. 1-8.
as

they

have

unfolded

Below is an account

since

that

last

ruling.

Other facts will be discussed in the analysis as they become
relevant.
A.

Proceedings since Denial of Class Certification

Shortly

after

the

denial

of

class

parties appeared again before the Court.

certification,

the

During this appearance

on June 30, Plaintiffs’ counsel said that Plaintiffs would “seek
leave to file an amended complaint, your Honor, that is much
narrower than the original complaint the class sought in the
class cert motion.”

(Transcript, ECF No. 134, p. 2.)

Defendant

Precor’s counsel replied, “We would need to see the motion, your
Honor.”

Id. at 3.

The Court then set the briefing schedule for

the initial filing, response, and reply.

Id.

The exchange

between the parties and the Court makes clear that the Court was
setting

the

schedule

for

a

Motion

for

Leave

to

Amend

the

Complaint and not for the filing of an Amended Complaint itself.
The

minute

order

issued

on

the

- 3 -

same

day,

however,

stated,

“Plaintiff

to

file

amended

complaint

by

7/14/2016.”

(ECF

No. 126.)
B.

Amended Complaint

Plaintiff filed its First Amended Complaint (the “FAC”) by
the deadline.

(ECF No. 127.)

a single cause of action:
Deceptive

Business

Plaintiffs’ Complaint now alleges

violation of the Illinois Fraud and

Practices

Act

and

nine

other

consumer

protection statutes “which are materially similar” to Illinois
law.

Id. ¶¶ 97-102.

are

California,

The ten states whose laws are implicated

Florida,

Illinois,

Massachusetts,

Michigan,

Minnesota, Missouri, New Jersey, New York, and Washington.

Id.

¶ 99.
Plaintiffs sought to represent four different classes in
their

Amended

Complaint.

The

first

new

class,

called

the

“Multi-State Damages Class,” was made up of all persons, not
otherwise excluded, who are residents of the ten states and “who
purchased a Precor treadmill equipped with a touch sensor heart
rate monitor from either Precor or a third-party retailer.”
¶ 86 (emphasis added).

FAC

In the alternative, Plaintiffs bring the

action on behalf of an “Illinois Resident Damages Class,” which
is defined in the same way as the Multi-State Damages Class but
is confined to residents of Illinois.

Id. ¶ 87.

In addition to the damages classes, Plaintiffs sought to
represent a Multi-State Injunctive Relief Class and an Illinois
- 4 -

Resident

Injunctive

Relief

Class.

These

injunctive

relief

classes are defined in the same way as the damages classes,
although presumably their members are entitled only to a remedy
in equity.

(FAC ¶¶ 88-89.)

Plaintiffs also expanded on the

injunctive relief they seek, naming five specific ways in which
they would have Precor enjoined.

Id. at 27.

All five are forms

of prospective injunctive relief having to do with how Precor
advertises

its

treadmills

Plaintiffs

asked

for

an

in

the

order

future.

“enjoining

For

Precor

instance,

from

making

representations regarding the validity, reliability or accuracy
of the Touch Sensor Monitoring feature on its treadmills.”

Id.

As for money damages, Plaintiffs requested the same types
of

damages

as

in

their

original

Complaint.

These

included

“compensatory damages . . . and treble, multiple, disgorgement,
punitive or other damages” as well as “pre-judgment and postjudgment interest” and awards of “attorney fees, expenses, and
costs.”

(FAC at 27.)

Because Plaintiffs’ sole claim for relief is now predicated
on the allegation that Precor engaged in unfair and misleading
representations in marketing its heart rate monitors, Plaintiffs
also

refined

and

expanded

on

their

allegedly deceptive advertising.
example,

Plaintiffs

accompanying

a

Precor

emphasized
treadmill,
- 5 -

allegations

of

Precor’s

See, FAC ¶¶ 5-14, 42-54.
that,

“In

Precor

made

every
the

For

product

exact

same

statement, that, “whether you walk or run,” the [touch sensor
heart rate monitoring] feature allows the consumer to ‘maximize’
their workout,” all the while knowing that such a statement was
false.

Id. at ¶¶ 15, 16, 45 (emphasis in original).

Plaintiffs’

factual

allegations

may

be

distilled

thusly:

(1) “Precor’s Touch Sensor Monitoring in treadmills does not
work as advertised” (FAC ¶¶ 15, 26); (2) Precor knew that its
Touch

Sensor

technology

“cannot

perform

as

advertised”

(FAC

¶¶ 22, 26); and (3) by “inducing [consumers] to pay a premium
price for a feature that simply could not work as advertised,”
Precor

had

violated

the

consumer

protection

laws

of

the

ten

named states (FAC ¶¶ 22, 99).
IV.
Precor
Complaint.

raised

four

ANALYSIS

issues

with

Plaintiffs’

Amended

The first is a procedural issue arising from the

fact that Plaintiffs had not filed a Motion for Leave to Amend a
Complaint prior to filing the Amended Complaint itself.
remaining

are

substantive

arguments

futility, and undue prejudice.

related

to

The

standing,

The Court will address each in

turn.
A.

Procedural Error

While it is true that Plaintiffs had not filed a Motion for
Leave

to

Amend,

the

Court

recognized

that

its

minute

order

issued on June 30 had in error allowed Plaintiffs to file an
- 6 -

Amended

Complaint

directly.

See,

Min.

(correcting the June 30 minute order).

Order,

ECF

No.

137

The Court will thus

treat the parties’ briefs on the issue as a Motion for Leave to
Amend

the

Complaint.

In

so

doing,

the

Court

exercises

its

discretion and rejects Precor’s attempt to have this Court deny
leave solely on the procedural ground that Plaintiffs did not
file a motion.
B.

Standing

As the party asserting jurisdiction, Plaintiffs bear the
burden of showing standing.
U.S.

555,

561

(U.S.

Lujan v. Defenders of Wildlife, 504

1992).

Moreover,

“each

element

[of

standing] must be supported in the same way as any other matter
on which the plaintiff bears the burden of proof, i.e., with the
manner and degree of evidence required at the successive stages
of the litigation.”

Id. (emphasis added).

The Court is aware

that Plaintiffs have already survived a Motion to Dismiss on
standing grounds.

It is also mindful of the fact that the case

is now two years out from the date of the Motion to Dismiss and
the record before the Court is much different than it was at
that point.

The Court will thus consider the standing arguments

raised by Precor anew.
In this case, there are two issues that raised a concern
about

Plaintiffs’

standing

classes they defined.

to

bring

suit

on

behalf

of

the

First, Plaintiffs are asserting a claim
- 7 -

related

to

Precor

Second,

Plaintiffs

classes

but

treadmill
seek

Plaintiffs

to

models

that

represent

have

not

they

the

pled

did

not

Injunctive

how

such

buy.

Relief

prospective

injunctive relief would redress their injury.
1.
Plaintiffs

Standing on Unpurchased Products
are

now

seeking

to

represent

a

class

of

consumers who bought Precor treadmills with touch sensor heart
rate

monitors.

The

parties

disagree

on

whether

this

is

an

expansion of the class for which Plaintiffs previously sought
certification and how many Precor treadmill models the Amended
Complaint now covers.

However, the parties do not dispute that

both named Plaintiffs bought the same 9.23 Model of treadmill
and

that

the

Complaint

covers

at

least

Models, the 9.27, 9.31, 9.33, and 9.35.

four

other

treadmill

The parties also do not

dispute that the four unpurchased models use a different heart
rate monitoring system than the 9.23.

See, Decl. Tormay Brown,

ECF No. 130, Ex. A, p. 6 Table 1.
a.

Legal Standard

As the Court noted in the opinion disposing of Precor’s
motion to dismiss, there is no uniformity across the country on
the

issue

products.
question
they

of

standing

for

claims

(ECF No. 125, p. 8.)
appear

either

to

denied

follow

one

standing

related

to

unpurchased

Courts that have taken up the
of

with
- 8 -

(at

least)

regards

to

two

approaches:

the

unpurchased

products, or they allowed it when the purchased and unpurchased
products,

as

“substantially

well

as

the

similar.”

alleged

Compare,

misrepresentations,

Holliday

v.

Albion

are

Labs.,

Inc., 2015 U.S. Dist. LEXIS 178148, *5-15 (S.D. Fla. June 9,
2015) (stating that “courts in this District have consistently
interpreted Prado-Steiman [a case by the Eleventh Circuit Court
of Appeals] to preclude a named plaintiff from bringing claims
involving

products

the

named

plaintiff

did

not

purchase

on

behalf of a class”); Padilla v. Costco Wholesale Corp., 2012
U.S. Dist. LEXIS 87222, *6-9 (N.D. Ill. June 21, 2012) (denying
standing

because

the

plaintiff

“cannot

use

the

class-action

device to predicate standing on injury which he does not share”)
(internal

quotation

marks

omitted);

Pearson

v.

Target

Corp.,

2012 U.S. Dist. LEXIS 187208, *3-4 (N.D. Ill. Nov. 9, 2012)
(asking rhetorically “how could [the plaintiff] possibly have
been injured by representations made on a product he did not
buy?” and denying standing); Conrad v. Nutramax Labs., Inc.,
2013 U.S. Dist. LEXIS 133072, *5-8 (N.D. Ill. Sept. 18, 2013)
(following Padilla and denying standing because the plaintiff
“has incurred no damages as the result of any representations”
made about the product that he did not buy); and Ferrari v. Best
Buy Co., 2015 U.S. Dist. LEXIS 61988, *15-21 (D. Minn. Mar. 13,
2015) (rejecting the “substantial similarity” approach because,
as

in

an

earlier

case,

“nowhere
- 9 -

in

the

complaint

had

the

plaintiffs

alleged

that

they

ever

purchased

these

products”)

(internal quotation marks omitted); with Davidson v. KimberlyClark

Corp.,

2014

U.S.

Dist.

LEXIS

110055,

*18

(N.D.

Cal.

Aug. 8, 2014) (acknowledging the split but siding with district
courts

that

similarities

look
and

to

see

common

whether

there

are

misrepresentations);

substantial

Gubala

v.

Allmax

Nutrition, Inc., 2015 U.S. Dist. LEXIS 144583, *7-12 (N.D. Ill.
Oct.

26,

standing

2015)
for

similarities

(stating

that

unpurchased
of

both

misrepresentations”

the

in

making

products,

a

“courts

physical

products

finding

and

determination

there

analyze

and

of
the

the
not

were

alleged
enough

similarities to warrant standing); Cox v. Chrysler Grp., LLC,
2015 U.S. Dist. LEXIS 133393, *44-47 (D.N.J. Sept. 30, 2015)
(refusing

to

plaintiffs

dismiss

did

not

claims

buy);

for

and

products

Quinn

v.

that

Walgreen

the
Co.,

named
958

F.Supp.2d 533, 541-542 (S.D.N.Y. 2013) (following what it calls
the “better approach” of analyzing whether there are substantial
similarities

between

purchased

and

unpurchased

products).

Courts that take the more plaintiff-friendly view to standing
generally allow the class action to proceed past a motion to
dismiss but may consider the issue again at the certification
stage

under

the

rubric

of

typicality,

adequacy

of

representation, or predominance.

See, e.g., Davidson, 2014 U.S.

Dist.

(“Where

LEXIS

110055

at

*19-21

- 10 -

there

is

sufficient

similarity between the products but also material differences
among them, concerns regarding the material differences can be
addressed at the class certification stage.”).
While the two approaches seem at odds with one another,
they are not irreconcilable.
unpurchased

products

Even cases that deny standing for

stressed

the

differences

purchased and unpurchased products.

between

the

See, e.g., Padilla, 2012

U.S. Dist. LEXIS 87222 at *8 (finding as a matter of law that
the plaintiff did not have standing but nonetheless noting that
the

bought

and

unbought

products

“have

different

product

formulations and labels”); Conrad, 2013 U.S. Dist. LEXIS 133072
at

*8

(following

unpurchased]

Padilla

CosaminASU

and

Pearson

contains

but

stating

additional

that

“[the

ingredients

to

[purchased] CosaminDS” and therefore declining to “to hold that
they are virtually the same product”); Holliday, 2015 U.S. Dist.
LEXIS 178148 at *12-13 (dismissing the plaintiff’s assertion of
standing partly because “every re-seller has its own labeling
and pricing scheme”); and Ferrari, 2015 U.S. Dist. LEXIS 61988
at

*18-19

(finding

that

“there

are

many

more

distinguishing

characteristics between models of televisions than simply size”
but otherwise not rejecting the argument that “different models
of a television are not separate products” had they been simply
“different sizes of the same product”).

This suggests that the

courts are not unmindful that some differences between two goods
- 11 -

do

not

automatically

make

consideration of standing.
a product.

them

different

“products”

for

The question then is what exactly is

For guidance on this question, the Court turns to

antitrust law.
Antitrust regulators consider two goods to be in the same
product market when they are substitutes for each other.

See,

2-24 Antitrust Laws and Trade Regulation, 2nd Edition § 24.02
(2015)

(“When

defining

a

relevant

market

from

the

buyer’s

perspective, . . . [t]he essential issue is whether the products
are substitutes for one another.”); see also, United States v.
E.I. du Pont de Nemours & Co., 351 U.S. 377, 400 (U.S. 1956). In
economic

parlance,

substitutable

goods

are

display a high cross-elasticity of demand.
and Trade Regulation § 24.02.

those

goods

that

See, Antitrust Laws

Goods A and B have high cross-

elasticity when the demand for Product A increases significantly
when the price for Product B increases (and vice versa).
n.32.

Id.

Intuitively, two products are substitutes when they are

relatively interchangeable in the consumer’s mind.

See, E.I. du

Pont, 351 U.S. at 403 (calling substitute products “functionally
interchangeable”).
consumers

switch

Thus, when the price of one product rises,
to

the

other,

now

relatively

otherwise-near-indistinguishable product.

cheaper

but

When goods are close

substitutes for each other – that is, when the demand of one
good drops significantly when its price increases relative to
- 12 -

the other good because enough consumers switch to buying the
other good – then the two goods are in the same product market.
See, e.g., Malaney v. UAL Corp., 434 Fed. Appx. 620, 621 (9th
Cir. 2011) (stating that to be in the same relevant antitrust
market, “products do not have to be perfectly fungible . . . but
must

be

sufficiently

interchangeable

that

a

potential

price

increase in one product would be defeated by the threat of a
sufficient

number

of

customers

switching

to

the

alternate

product”) (emphasis added).
As these definitions make clear, substitutability is not
only a binary concept where goods are either substitutes or they
are

not

substitutes.

Rather,

there

is

a

spectrum

of

substitutability, and every pair of goods can be more or less
substitutable for each other.
exactly the same product.

Put differently, no two goods are

(Is a treadmill of Model X which was

purchased with free home delivery in Chicago the same product as
the Model X purchased without home delivery in Springfield? If
one lives in Chicago and has no car, the answer is no.

For such

a consumer, a treadmill of Model X with free home delivery in
Chicago may be closer to being the same product as a treadmill
of Model Y with free home delivery in Chicago.)
two goods are better or worse substitutes.

Instead, any

When two physical

goods are sufficiently substitutable, they may be treated as the
same product for the purpose of determining standing.
- 13 -

By applying the logic of the product market from antitrust
law

to

the

standing

idea

of

context,

courts.

We

do

“purchased

we

reconcile

this

by

product”

in

the

approaches

thinking

two

of

the

class

action

taken

“substantially

by

similar”

products as products that are close substitutes for one another
and

clarifying

that

purchased

and

unpurchased

goods

are

meaningfully two different products only when they are not close
substitutes.
Under
when

the

this

conceptualization,

products

are

standing

should

Otherwise,

near
be

standing

should

substitutes

be

one

When

denied.

to

they

granted
another.
are

not

substitutable, the goods are not “substantially similar” in the
ways

that

decision.

matter

to

the

consumers

when

making

purchasing

In such circumstance, the products are distinct and

meaningfully

treated

as

different

purchased

and

unpurchased

products for the purpose of deciding standing.
b.
This

case

Application to Facts

provides

a

good

application

substitutability standard discussed above.

for

the

Plaintiffs are here

alleging that a part incorporated into a larger good (the touch
sensor heart rate monitors contained in Precor treadmills) is
deceptively marketed.

Precor, on the other hand, is protesting

that there are different subsystems to the heart rate sensors
(the Alatech, Salutron, and Polar monitoring systems) and that
- 14 -

each subsystem uses a different algorithm, noise filter, and
preamp for actually detecting the heart rate.

Further, Precor

claims

that

that

the

different

implementations,

is,

the

different models of the treadmills (the 9.23, 9.27, 9.31, 9.33,
and 9.35) make a technical difference as to performance.
there

are

multiple

candidates

to

be

considered

the

Thus,

relevant

product for deciding standing: the software to the subsystems,
the subsystems, the heart rate monitors, the specific treadmill
models,

or

all

incorporate

touch

theoretical

treadmills

basis

relevant

sensor

manufactured

heart

for

deciding

it

seems

rate

product,

by

Precor
Without

monitors.

which

rather

of

the

arbitrary

that
some

above
to

is

say

the
that

Plaintiffs here bought the 9.23 Precor Model Treadmill, and so
have standing to sue for this particular model, but not that,
say, they bought the Alatech heart rate monitoring subsystem and
so

should

have

standing

to

sue

for

all

Precor

treadmills

Complaint,

Plaintiffs

incorporating that subsystem.
Turning

now

to

Plaintiffs’

Amended

here seek to represent a class of consumers who purchased “a
Precor

treadmill

monitor.”

equipped

with

a

touch

sensor

heart

rate

Plaintiffs themselves have bought the 9.23 Precor

Model Treadmill.

To decide whether Plaintiffs have standing as

to the unpurchased models (the 9.27, 9.31, 9.33, and 9.35), this
Court asks whether the complained of product – the touch sensor
- 15 -

heart rate monitor marketed as allowing consumers to “maximize
their workouts” “whether they walk or run” – is substitutable
across the different treadmill models.

If the 9.23 Precor’s

heart rate monitor is not a good substitute for other models’
heart rate monitors, then Plaintiffs would have no standing to
assert claims on the unpurchased products.
if

the

monitors

are

close

substitutes

On the other hand,

to

each

other,

then

Plaintiffs may bring an action on behalf of the class they seek
to represent.
To determine whether the 9.23 Precor’s heart rate monitor
is a good substitute for other four Precor models’ monitors, the
Court first looks to the alleged misrepresentations.

If Precor

had marketed these monitoring systems in distinct ways, then
this is evidence that the products are differentiated to the
consumers and so are not substitutes for each other.
Plaintiffs

have

alleged

“uniform” and “standardized.”
62.)

that

the

representations

are

(FAC ¶¶ 5, 10, 14, 25, 43, 47,

Having looked through Precor’s advertisements as included

the record, the Court notes that none of the advertisements even
mentions the different heart rate monitoring subsystems present
in

the

different

Precor

models.

The

Alatech,

Salutron,

and

Polar subsystems that Precor argued made such a difference as to
the performance of the monitors were not marketed as such to
consumers at all.

Based on the representations, the different
- 16 -

model treadmills, although they contain different touch sensor
heart

rate

monitoring

systems,

do

not

look

like

distinct

products.
Second, the Court looks to the physical products or the
treadmills’

heart

rate

monitors

themselves.

The

record

is

lacking in indicia of substitutability, including rough proxies
like the price points of the different systems, their costs to
Precor,

or

the

targeted

consumer

bases.

evidence on the systems’ performance.

But

there

is

some

This is relevant because

the closer the systems perform to each other the more likely it
is that they are substitutes.
During

class

certification,

Precor’s

expert,

Michael

Garrett, had argued that the performance of the Touch Sensors
“varies
system

based
being

on

factors

tested,

including

the

type

and

a

user’s

intensity

physiology,
of

the

the

exercise

performed, and the heart rate system included in the machine.”
(ECF

No.

125,

persuasive.

p.

19.)

Id. 19-20.

The

Court

found

Garrett’s

testimony

Such a difference in the performance of

the monitoring systems suggests that users would not find the
products

good

substitutes

for

one

another.

In

light

of

Plaintiffs’ new Complaint, the Court revisits the evidence while
restricting

the

scope

of

its

examination

to

only

the

class

products (treadmills with a touch sensor heart rate monitor) and
the class claim (deceptive misrepresentation).
- 17 -

The

fact

that

the

Amended

Complaint

retains

only

the

deceptive misrepresentation claim does not change the Court’s
reading of the evidence.

The claim was present in the previous

Complaint and adds nothing here.
they

dropped

the

warranty

Plaintiffs argued that because

claim,

their

case

necessitates the finding of a common defect.

no

longer

(ECF No. 141,

p. 2, 9.)

This is true, but Plaintiffs are still alleging that

the

sensor

touch

heart

rate

monitoring

“does

not

work

as

advertised,” “cannot perform as advertised,” and “could not work
as advertised.”

(FAC ¶¶ 15, 22, 26.)

Whether the touch sensors

worked or not is still then an element of Plaintiffs’ claim:

if

they worked, then the consumers could not have been deceived.
Plaintiffs asserted that Mullins v. Direct Digital, LLC,
795 F.3d 654 (7th Cir. 2015) compelled a different conclusion.
But

Mullins

is

distinguishable.

In

Mullins,

the

alleged

misrepresentation was that the accused tablets were “clinically
tested” and “scientifically formulated.”
Whether

the

pills

were

actually

Id. at 658, 672-73.

“clinically

tested”

or

formulated according to some accepted scientific principles is
not affected by the users’ physiology, or the type, intensity,
or frequency of the ingestion of the pills.
recognized

this

and

stated,

“What

The Seventh Circuit

really

matters

under

[Mullins’] theory is whether there is any scientific support for
the

assertions

contained

in

the

- 18 -

labels

and

advertising

materials.”

Id. at 673.

Thus, the type of misrepresentation

complained of in Mullins made it immaterial (as to everything
but

the

health

merits

of

the

benefits.

misrepresentation
represented.

claim)

Id.
is

whether

some

In
the

that

contrast,
technology

users

here,
did

experienced
the

not

alleged
work

as

“A user’s physiology, the system being tested, the

type and intensity of the exercise performed, and the heart rate
system included in the machine” could, in theory, matter if they
affect how well the technology performs.
Unfortunately for Precor, the evidence in record does not
bear out this theory.

The testimony of Plaintiffs’ and Precor’s

experts sheds light on the issue of performance.
sides’

experts

lines,

they

necessarily

are

in

quibble

remarkable

with

agreement

each
on

While the two
other’s

one

bottom

point:

the

performance of the treadmills’ heart rate monitors deteriorated
sharply as the users get up to high running speeds.
Precor’s own expert conducted independent testing of the
heart

rate

individuals

monitoring
of

physiologies.
p. 47.)
touch

different

technology
ages,

using

heights,

22

weights

pre-screened
and

(Expert Rep. Michael Garrett, ECF No. 98, Ex. 2,

These subjects had their heart rates measured by the

sensors

while

exercising

on

two

different

treadmills’

heart rate monitoring systems (the Alatech and Polar).
43-44.

cardio-

Id. at

Garrett then compared the heart rate readings from the
- 19 -

touch sensors to readings from a chest strap electrocardiogram
(“ECG”) worn by the subjects.
Test

results

for

both

treadmills

showed

that

when

the

subjects ran at 6.0 mph, the majority of them (more than 60%)
experienced a difference between the two readings of more than
10%.

(ECF No. 98 at 49, 53-54, Fig. 28-29, Tab. 4-5.)

At this

high speed of running, readings from the touch sensors on the
two treadmills diverged significantly from the ECG chest strap
readings for the majority of tested subjects.
that

the

ECG

readings

are

accurate,

the

Thus, assuming
touch

sensors’

measurements were inaccurate for most subjects when they ran.
The fact that by Precor’s own testimony, the majority of
subjects experienced inaccurate heart rate readings means that
Precor cannot rely on individual differences to account for the
differences in performance.

Insofar as Plaintiffs are alleging

that Precor misrepresented that the touch sensors work “whether
you walk or run,” Precor cannot rely on “the type and intensity
of the exercise performed” to excuse the inaccurate readings.
Finally, since Garrett tested the two touch sensor systems that
are present in all five of the accused products, Precor cannot
claim

that

“the

heart

rate

system

included

in

the

machine”

determined the result.
In sum, the evidence before the Court suggests that the
touch sensor heart rate monitors across the different models of
- 20 -

treadmills are good substitutes for each other.
marketed

differently

from

similarly under testing.

one

another

and

They were not
they

performed

Based on this evidence, Plaintiffs

have individual standing to pursue claims related to the five
treadmill models.
Plaintiffs’

ability

Of course, Precor remains free to challenge
to

satisfy

Rule

23

at

the

certification

stage.
2. Standing for Prospective Injunctive Relief
As

the

Supreme

Court

explained,

a

plaintiff

injunctive relief must show the following elements:

seeking

“that he is

under threat of suffering ‘injury in fact’ that is concrete and
particularized;

the

threat

must

be

actual

and

imminent,

not

conjectural or hypothetical; it must be fairly traceable to the
challenged action of the defendant; and it must be likely that a
favorable judicial decision will prevent or redress the injury.”
Summers v. Earth Island Inst., 555 U.S. 488, 493 (U.S. 2009).
In turn, “to establish injury in fact when seeking prospective
injunctive

relief,

a

plaintiff

must

allege

a

‘real

immediate’ threat of future violations of their rights.”

and

Scherr

v. Marriott Int’l, 703 F.3d 1069, 1074 (7th Cir. 2013) (citing
City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)) (emphasis
added).

To show redressability, plaintiffs must establish that

“the relief sought would, if granted, reduce the probability [of

- 21 -

injury].”

Elk Grove Village v. Evans, 997 F.2d 328, 329 (7th

Cir. 1993).
In this case, Plaintiffs have made no allegations that they
are

likely

to

suffer

misrepresentations.

future

They

harm

alleged

from

only

Precor’s

that

deceptive

they

had

“lost

money” when they were fooled by Precor’s misrepresentations into
buying treadmills with heart rate monitors that did not work.
But “past exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief . . . if
unaccompanied

by

any

continuing,

present

Lujan, 504 U.S. at 564 (U.S. 1992).
allegation

that

they

continue

to

adverse

effects.”

Plaintiffs here made no
be

harmed

by

Precor’s

misrepresentations or that they are likely to be injured by them
in the future.
discovered

Plaintiffs certainly do not allege that, having

Precor’s

deception,

they

may

still

buy

Precor’s

products.
In fact, Plaintiffs specifically alleged facts suggesting
that it is extremely unlikely that they will purchase Precor’s
supposed defective machines again.
important

the

heart

rate

Both Plaintiffs stressed how

monitoring

selecting their exercise equipment.

feature

was

to

them

in

As Mednick recounted in the

Complaint, “[a]fter suffering a heart attack in 2013, Plaintiff
Mednick had been advised by his physician to purchase a home
exercise

machine

capable

of

monitoring
- 22 -

his

heart

rate

while

exercising. . . .
went

to

the

provided

Upon receiving this advice, Plaintiff Mednick

marketplace

heart

rate

to

purchase

monitoring

exercise

capabilities.

equipment
.

.

.

that
After

purchasing the Precor treadmill, Plaintiff Mednick soon learned
that its Touch Sensor Monitoring feature did not work.”

Mednick

thus alleged that he needed exercise equipment that “provided
heart rate monitoring capabilities” and that Precor’s treadmill
failed to do exactly that.

Likewise, Plaintiff Bayer alleged

that he “would not have purchased the treadmill had he known the
Touch Sensor Monitoring feature . . . was actually unreliable
and inaccurate.”

Here, as in Davidson, “[i]t seems clear from

the allegations in the complaint” that Plaintiffs have “no plans
to

purchase

prospective

the

same

injunctive

product
relief,

as
at

to

the

which
same

[they]

price,

[Precor] to remove” the alleged misrepresentations.

seek[]

even

were

Davidson,

2014 U.S. Dist. LEXIS 110055 at *16 (emphasis in original).
Under such circumstance, district courts have found that
plaintiffs lack standing to seek prospective injunctive relief.
See, e.g., Davidson, 2014 U.S. Dist. LEXIS 110055 at *14 (“To
establish

standing

connection
advertising,
intends

to

with
a

a

to

seek

consumer

plaintiff

purchase

prospective

the

must

products
allege

product

at

injunctive
claim

facts
issue

relief

alleging
showing

in

the

in

false

that

she

future.”);

Gershman v. Bayer HealthCare LLC, 2015 U.S. Dist. LEXIS 60835,
- 23 -

*22 (N.D. Cal. May 8, 2015) (“In false advertising cases, ‘where
a plaintiff has no intention of purchasing the product in the
future,

a

plaintiff

majority
has

relief.’”); and

no

of

district

standing

courts

to

seek

have

held

prospective

that

the

injunctive

Bohn v. Boiron, Inc., 2013 U.S. Dist. LEXIS

107928, *7-11 (N.D. Ill. Aug. 1, 2013) (finding no standing when
the

plaintiff

Defendants’

alleged

that

Product”

had

she

she

“would
known

not

the

have

truth

purchased
about

its

The Court finds Bohn and its line of cases persuasive.

The

misrepresentations).

Court cannot see how the constitutional command of injury-infact can be skirted in a case like this one where the named
Plaintiffs

have

made

no

allegation

of

risk

of

future

harm.

While it is desirable that Precor’s prospective customers not be
deceived by the company’s allegedly false advertising, the named
Plaintiffs “cannot rely on the prospect that other consumers may
be deceived” to boost their own standing.
Dist.

LEXIS

107928

at

*8

(N.D.

Ill.

See, Bohn, 2013 U.S.

Aug.

1,

2013)

(citing

Campbell v. Miller, 373 F.3d 834, 836 (7th Cir. 2004)).
It is true that not all courts follow the same approach.
See, e.g., Leiner v. Johnson & Johnson Consumer Cos., 2016 U.S.
Dist. LEXIS 3896, *1-4 (N.D. Ill. Jan. 12, 2016) and Le v.
Kohl’s Dep’t Stores, Inc., 2016 U.S. Dist. LEXIS 14999, *25-35
(E.D. Wis. Feb. 8, 2016).

Generally, courts that have found
- 24 -

standing

seem

complaining

sympathetic

consumer's

to

the

standing

argument

dissipated

that
the

if

moment

“the
she

discovered the alleged deception and could no longer be fooled,”
then “the injunctive provisions of consumer protection statutes
such

as

ICFA

practices.”

could

never

be

invoked

to

enjoin

deceptive

See, Leiner, 2016 U.S. Dist. LEXIS 3896, *3-4 (N.D.

Ill. Jan. 12, 2016) (collecting cases where courts have been
persuaded by this public policy concern).

However, other courts

have addressed this public policy concern – which is, in any
case,

trumped

by

the

constitutional

requirement

of

standing,

see, id. – by pointing out that denying standing under these
circumstances does not “thwart consumer fraud statutes because
plaintiffs may be able to bring such claims in state court, and
there are also various state and federal regulatory agencies
that can be solicited to take action on consumers’ behalf to
police such wrongdoings.”

In re Fluidmaster, 149 F.Supp.3d 940,

958 (N.D. Ill. 2016) (quoting from Richardson v. L’Oréal USA,
Inc., 991 F.Supp.2d 181, 192 n.10 (D.D.C. 2013)).
In

addition,

the

two

cases

from

this

circuit

that

have

allowed plaintiffs to seek injunctive relief even when they were
unlikely

to

purchase

the

defendants’

distinguishable from the case at bar.

products

again

are

Although Leiner dismissed

the challenge to plaintiff’s standing on a 12(b) motion, the
court expressly reserved the question of “[w]hether plaintiff is
- 25 -

an appropriate class representative with respect to some or all
of

these

claims”

certification.”

to

“after

discovery

and

briefing

on

class

Leiner, 2016 U.S. Dist. LEXIS 3896 at *4.

The

case before this Court has already gone to class certification,
so there is no reason to defer the issue further.

Le conceded

even more, stating that the defendant’s standing argument “may
be appropriate in the context of a product-specific complaint.”
Le, 2016 U.S. Dist. LEXIS 14999 at *31-32.

It rejected the

argument because the allegation of false advertising in Le is
“company-wide,”

affecting

“housewares”

as

well

as

“men’s

apparel” and “holiday sales” alongside with “day-to-day offers.”
Id.

In contrast, Plaintiffs in this case are complaining about

Precor’s treadmills, “a product-specific complaint.”
Finally, even if Plaintiffs had alleged a sufficient threat
of future harm (which they have not), they cannot show how the
relief they seek would “if granted, reduce the probability” of
harm.
the

Plaintiffs have requested that Precor be forced to change

way

it

essentially

markets
to

convey

the

touch

the

sensor

message

heart

that

rate

monitors,

the

sensors

“do

provide valid, reliable, or accurate heart rate readings.”
at 27.)

if

(FAC

But by Plaintiffs’ own allegations, Plaintiffs have

already discovered this on their own.
even

not

the

relief

is

granted,

At the end of the day,

Plaintiffs

will

still

own

(allegedly) defective treadmills that they know to be defective.
- 26 -

As

the

court

explained

in

In

re

Fluidmaster,

“there

is

a

disconnect between the alleged harm and the requested relief” in
such

a

case.

Ordering

a

defendant

to

cease

his

false

advertising would not change the fact that the plaintiff has a
product he knows to be faulty in his home.
149

F.Supp.3d

at

959.

plaintiff’s standing.

Such

a

In re Fluidmaster,

disconnect

is

fatal

to

the

Id.

Because the Court finds that Plaintiffs lack standing to
seek prospective injunctive relief, Plaintiffs may not bring a
lawsuit on behalf of the Injunctive Relief classes as defined in
their Complaint.
B.

Futility

The Court has already ruled that Plaintiffs’ multi-state
consumer

misrepresentation

treatment.

claim

was

not

See, ECF No. 125, p. 21.

amendable

to

class

In particular, the Court

found that “[t]he nature of Plaintiffs’ claims,” a multi-state
class action involving multiple state laws, “prevents the Court
from finding Rule 23(b)(3) satisfied.”

Id.

This is because

“such actions require the application of numerous, materially
different state laws” that “pose[] serious problems about choice
of law, the manageability of the suit, and thus the propriety of
class certification.”
Given

that

Plaintiffs

Id. (internal quotation marks omitted).

the

same

ten

state

have

not

alleged

laws

any
- 27 -

new

are

now

basis

implicated,

to

challenge

and
the

Court’s conclusion, it would be futile to allow the exact same
claim rejected previously to go forward now.
Plaintiffs again lean on Mullins to argue otherwise.

But

Mullins was completely silent on the issue of whether the ten
state laws at issue are sufficiently similar.
in

that

opinion

of

the

state

statutes

The only mention

was

in

the

single

sentence, “Mullins asserts that Direct Digital is liable for
consumer fraud under the Illinois Consumer Fraud and Deceptive
Business

Practices

Act,

815

ILCS

505/1

et

seq.,

consumer protection laws in nine other states.”
F.3d at 658.
states

and

similar

Mullins, 795

The court did not even bother to name what these

were.

This

is

unsurprising

given

that

the

attention was on an entirely different legal question.

court’s
See, id.

at 658 (stating that the court granted the appeal “primarily to
address the developing law of ascertainability” and spending 15
out of 17 pages of the opinion discussing ascertainability, not
commonality)

(emphasis

added).

Instead

of

relying

Mullins’

silence to draw an affirmative conclusion about the laws of ten
states, the Court looks to see whether the state laws are, in
fact, materially similar.
In a case alleging deceptive advertising such as this one,
“[a]ll elements of each state’s consumer protection statute must
be considered.”

Marshall v. H&R Block Tax Servs., 270 F.R.D.

400,

Ill.

408

(S.D.

2010).

Moreover,

- 28 -

“Plaintiffs

cannot

sidestep this required analysis by . . . focusing on only two
elements

—

reliance

and

materiality

—

to

the

exclusion

of

others, such as proximate cause, wrongful intent, damages, and
statutes of limitations.”

Id.

This sidestep is what Plaintiffs

attempted to do in this case.

Plaintiffs represented to the

Court in their briefing on class certification that “none of
these

[ten

states’]

laws

require

reliance”

materiality is identical under all of them.”

and

“proving

(Pls’ Reply Memo.

Support Class Certification, ECF No. 118, p.26 n.21, p.27 n.
22.)

But this representation was done to the exclusion of other

elements

of

Plaintiffs’

claim,

including

proximate

cause,

different

states’

intent, damages, and statutes of limitations.
The

statutes

of

limitations

under

the

consumer protection laws are plainly different.

They range from

three

six

years

(in

Illinois

and

New

York)

to

years

(in

Michigan, Minnesota, and New Jersey), with the remaining states
at four (California, Florida, Massachusetts, and Washington) and
five years (Missouri).

See, Cal Bus & Prof Code § 17208, Fla.

Stat. § 95.11(3), 815 ILCS 505/10a, ALM GL ch. 260, § 5A, MCLS
§ 445.911(7), § 516.120 R.S.Mo., N.J. Stat. § 2A:14-1, NY CLS
CPLR § 214, and Rev. Code Wash. (ARCW) § 19.86.120.

While

differences in statutes of limitations are not insurmountable,
they

nonetheless

Marshall,

270

weigh

F.R.D.

against
at

class

408

(stating

- 29 -

certification.
that

See,

“individualized

statute

of

limitations

determinations

weigh

against

certification under Rule 23(b)(3)”).
The availability of different damages measures also varies
from

state

to

state.

For

example,

the

California

consumer

protection statute allows only for restitution and injunctive
relief.
4th

See, Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.

1134,

1144,

1148-48

(Cal.

2003).

This

flies

against

Plaintiffs’ request for treble, multiple, (non-restitutionary)
disgorgement, and punitive damages.
such

damage

measures.

differences.

For

Even

example,

Other states do allow for
here,

Illinois

however,
provides

there
for

are

punitive

damages at the discretion of the district court; Massachusetts
provides for not less than doubled but not more than trebled
actual

damages

in

case

of

willful

conduct;

and

New

Jersey

mandates trebling of damages in cases of ascertainable loss.
See, 815 ILCS 505/10a; ALM GL ch. 93A, § 9; and N.J. Stat.
§ 56:8-19.
Plaintiffs alleged that Precor not only made affirmative
misrepresentations,

but

also

materially misleading omissions.
85, 92, 99.

that

the

company

engaged

in

See, FAC ¶¶ 13, 19-21, 68, 71,

The element of wrongful intent differs from state

to state with regards to such omissions.

Some states require

that a defendant must have intended the plaintiff to rely on the
omission whereas others forego such a requirement.
- 30 -

For example,

New Jersey directs a plaintiff to demonstrate that the defendant
intended such reliance but California does not.

Compare, Cox v.

Sears Roebuck & Co., 138 N.J. 2, 17-18 (N.J. 1994) with In re
Tobacco II Cases, 207 P.3d 20, 29 (Cal. 2009).
“No

class

action

is

proper

governed by the same legal rules.”

unless

all

litigants

are

In re Bridgestone/Firestone

Tires Prods. Liab. Litig., 288 F.3d 1012, 1015 (7th Cir. 2002).
Plaintiffs have not satisfied the Court that the unnamed members
of the class action they proposed indeed are “governed by the
same legal rules.”

The Court thus dismisses Plaintiffs’ ten-

state misrepresentation claim.

The Court will allow Plaintiffs

to amend their Complaint to cover a smaller number of states,
provided that Plaintiffs establish that all the elements under
these states’ laws are sufficiently similar so that the class
may be certified.
C.

Undue Prejudice

Bafflingly enough, two and a half years into litigation,
the parties cannot agree on what products are part of the class.
Plaintiffs take the position that the accused products include
all

Precor

treadmill

models

with

touch

sensor

heart

rate

monitors and that all these treadmills have been part of the
class

since

their

original

Complaint.

Precor,

on

the

other

hand, claims that only five models of the treadmills (the 9.23,
9.27, 9.31, 9.33, and 9.35) were part of the original Complaint
- 31 -

and that they are unclear on whether Plaintiffs expanded this to
cover more treadmill models in their Amended Complaint (and if
so, which ones?).
The Court will leave the issue to the parties.

The Court

will note, however, that the more the class expands beyond the
five listed Precor treadmill models, the longer this litigation
will drag on and the more likely it is that Precor will be
unduly prejudiced by delays.

Plaintiffs have represented to the

Court in their most recent briefing that they “will not require
extensive additional discovery” before they are ready to submit
a

motion

for

class

certification

again.

(Pls’

Reply

Memo.

Support Mot. Leave to File First Amend. Compl., ECF No. 141,
p.13.)

In

fact,

Plaintiffs

stated

that

they

can

file

that

motion “within 30 days of the Court’s ruling” on the current
matter.

Id.

The Court thus expects this case – first filed in 2014 – to
proceed expeditiously.

The Court will hold Plaintiffs to the

briefing schedule they proposed.

Under such circumstance, the

Court finds that there is no undue prejudice to Precor to allow
this Motion to Amend.
IV.

CONCLUSION

For the reasons stated herein, Plaintiffs have leave to
amend

their

Illinois

complaint

Resident

insofar

Damages

as

Class.
- 32 -

they

seek

to

Plaintiffs

represent

may

also

the

bring

their lawsuit on behalf of a Multi-State Damages Class, but this
class must be narrowed to those states whose consumer protection
statutes are materially similar to Illinois law on all elements
of a misrepresentation claim.

Plaintiffs are cautioned that

they bear the burden of affirmatively showing such similarities.
Finally, in the interest of not unduly prejudicing Defendant
Precor, Plaintiffs’ Amended Complaint must be contained to those
class products that will not necessitate prolonging discovery
beyond the short period of time that Plaintiffs represented that
they need in this motion.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: September 27, 2016

- 33 -