Mednick v. Precor Inc
Filing
38
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 11/13/2014:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHER DISTRICT OF ILLINOIS
EASTERN DIVISION
GARY MEDNICK, Individually and
on behalf of all others
similarly situated,
Plaintiffs,
Case No. 14 C 3624
Consolidated with
Case No. 14 C 4231
Judge Harry D. Leinenweber
v.
PRECOR, INC.,
Defendant.
STEVEN BAYER, Individually and
on behalf of all others
similarly situated,
Plaintiffs,
v.
PRECOR, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Defendant Precor Incorporated (“Precor”) moves to strike and
dismiss Plaintiff Gary Mednick’s (“Mednick”) Complaint [ECF No.
24], and Plaintiff Steven Bayer’s (“Bayer”) Complaint [ECF No.
16].
For the reasons stated herein, Precor’s Motion to Strike
and Dismiss Mednick’s Complaint is granted in part and denied in
part, and the similar Motion against Bayer is denied.
1. I.
Mednick
and
Bayer
both
manufactured by Precor.
Touch
Sensor
Heart
B ACKGROUND
purchased
Model
9.23
treadmills
The Model 9.23 treadmill includes a
Rate
System
(the
“Touch
Sensors”)
measures heart rate when a user grips handle sensors.
that
The Touch
Sensors in Model 9.23 treadmills are manufactured by Alatech
(“Alatech”), one of Precor’s vendors.
along
with
included
sensors
on
manufactured
eighteen
by
additional
Alatech Touch Sensors,
Polar
and
Precor
Saultron,
machines:
are
four
treadmills, eight elliptical machines, and six stationary bikes.
Precor represents on its website, in its brochures, and through
its
advertisements
that
the
Touch
Sensors
in
all
nineteen
machines, regardless of manufacturer, provide accurate heart rate
readings.
However, both Plaintiffs found that their treadmills’
Touch Sensors failed to provide accurate heart rate readings.
According to the Complaints, the Touch Sensors on all nineteen
machines contain the same glaring defect.
After
discovering
that
the
Touch
Sensor
was
defective,
Mednick called and spoke with a Precor customer support manager
who
offered
treadmill.
to
refund
Mednick
Mednick
declined
the
the
purchase
offer,
and
price
of
eventually
the
each
Plaintiff separately filed a multi-state class action Complaint.
Both Complaints assert claims for violations of the Illinois
Consumer
Fraud
and
Deceptive
Business
- 2 -
Practices
Act
and
the
Magnuson-Moss Warranty Act.
claims for
warranty
of
breach
of
Mednick’s Complaint also asserts
express
warranty
and
breach
of
implied
Precor
has
moved
to
dismiss
merchantability.
Plaintiffs’ Complaints for lack of subject matter jurisdiction,
failure to state a claim, and failure to plead with particularly.
Precor has also moved to strike the multi-state class allegations
in each Complaint.
2 . II .
LEGAL S TANDARD
A. Lack of Subject Matter Jurisdiction
Under Federal Rule of Civil Procedure (12)(b)(1), a court
may dismiss
a
case
for
lack of
subject
matter
jurisdiction.
Standing to sue is a threshold jurisdictional requirement in
every federal action.
Sicom Sys., Ltd. v. Agilent Techs., Inc.,
427 F.3d 971, 975 (Fed. Cir. 2005).
Federal courts “may not
grant relief when standing does not exist.”
Heartland Direct,
Inc. v. Chevron U.S.A. Inc., No. 06 C 1029, 2006 WL 2524139 at *2
(N.D. Ill. Aug. 30, 2006).
Because standing is indispensable, a
plaintiff must establish standing “in the same way as any other
matter on which the plaintiff bears the burden proof, i.e., with
the manner and degree of evidence required at the successive
stages of the litigation.”
U.S. 555, 561 (1992).
Lujan v. Defenders of Wildlife, 504
At the motion to dismiss STAGE, PLAINTIFFS’
GENERAL ALLEGATIONS ARE ALL THAT IS NEEDED TO
id.
- 3 -
establish standing.
See,
B.
Failure to State a Claim
A complaint must provide a short and plain statement of the
claim showing the plaintiff is entitled to relief, sufficient to
provide the defendant with “fair notice” of the claim and its
basis.
U.S.
8(a)(2); Bell Atl. Corp. v. Twombly, 550
FED. R. CIV. P.
544,
555
(2007).
The
complaint
must
“plead[]
factual
content that allows the court to draw the reasonable inference
that
the
Ashcroft
defendant
v.
Igbal,
is
liable
556
U.S.
for
662,
the
678
misconduct
(2009).
alleged.”
The
factual
allegations in a complaint must “raise a right to relief above
the speculative level.”
C.
Twombly, 550 U.S. at 555–56.
Failure to Plead with Particularity
Rule 9(b) requires a party to state with particularity the
circumstances
constituting
fraud.
FED. R. CIV. P. 9(b).
A
plaintiff generally must plead the “who, what, where, when and
how” of the alleged fraud.
610, 615 (7th Cir. 2011).
AnchorBank, FSB v. Hofer, 649 F.3d
Heightened pleading is also required
for state law fraud claims brought in federal court.
Ackerman v.
Nw. Mut. Life Ins. Co., 172 F.3d 467, 470 (7th Cir. 1999).
- 4 -
3 . III.
A NALYSIS
A.
Standing
Precor asserts that this Court does not have subject matter
jurisdiction
standing.
over
Plaintiffs’
claims
because
Plaintiffs
lack
Specifically, Precor argues that Mednick’s claims are
moot because he was offered a full refund.
Also, Precor argues
that both Plaintiffs lack standing to bring claims related to any
product other than the Model 9.23 treadmill that they purchased.
The Court will address the mootness argument related to Mednick’s
claims before addressing the general standing arguments related
to both Plaintiffs’ claims.
“The doctrine of mootness stems from Article III of the
Constitution, which limits the jurisdiction of federal courts to
live cases or controversies.”
Damasco v. Clearwire Corp., 662
F.3d 891, 894 (7th Cir. 2011).
“Federal courts are without power
to decide questions that cannot affect the rights of litigants in
the case before them.”
Cir. 2004).
A.M. v. Butler, 360 F.3d 787, 790 (7th
At all stages of litigation, both litigants must
maintain a personal interest in the case, and “[a] case becomes
moot when the dispute between the parties no longer rages, or
when
one
of
the
parties
outcome of the suit.”
loses
his
personal
interest
in
the
Holstein v. City of Chi., 29 F.3d 1145,
1147 (7th Cir. 1994).
- 5 -
Precor argues that its offer of a full refund to Mednick
mooted all of his claims.
Damasco
that
“once
the
The Seventh Circuit recognized in
defendant
offers
to
satisfy
the
plaintiff’s entire demand, there is no dispute over which to
litigate, and a plaintiff who refuses to acknowledge this loses
outright
stake.”
under
[Rule]
12(b)(1)
because
Damasco, 662 F.3d at 895.
he
has
no
remaining
To moot a plaintiff’s claims,
the offer must “satisfy the plaintiff's entire demand” such that
“there
is
no
dispute
over
controversy to resolve.”
which
to
litigate
and
thus
no
Scott v. Westlake Servs. LLC, 740 F.3d
1124, 1126 (7th Cir. 2014) (internal quotation marks omitted).
In this case, the parties dispute whether Precor’s offer of a
full refund satisfies the stringent standard of complete relief.
The Court need not resolve this dispute, though, because Damasco
does not apply to an offer made by a non-defendant before a
plaintiff makes a demand.
G. Neil Garrett, D.D.S., P.C. v. New
Albertson’s Inc., No. 13 C 7965, 2014 WL 2198242, at *2-3 (N.D.
Ill. May 27, 2014).
In Garrett, the plaintiff sued an entity called Albertson’s,
LLC, instead of the correct defendant, New Albertson’s, Inc.
Id.
at
New
*2.
Before
the
plaintiff
realized
its
mistake,
Albertson’s sent a settlement offer to the plaintiff.
Id.
The
plaintiff rejected the offer and filed an amended complaint,
substituting
New
Albertson’s
as
- 6 -
the
defendant.
Id.
New
Albertson’s then moved to dismiss, arguing that its offer mooted
the plaintiff’s claims.
Id.
Although the parties disputed whether the offer provided
complete relief, the court found it unnecessary to address that
issue.
Id.
Instead, the court found that Damasco did not apply
because New Albertson’s “was not yet a defendant . . . when it
made its offer” and “[t]here was not yet a demand directed to New
Albertson's for it to offer to satisfy.”
Id.; see also, Scott,
740 F.3d at 1126 (“[I]f the defendant offers to pay only what it
thinks might be due, the offer does not render the plaintiff's
case
moot.”).
Thus,
plaintiff’s claims.
New
Albertson’s
offer
did
not
moot
Garrett, 2014 WL 2198242, at *3.
The facts of this case very closely mirror those in Garret.
Nancy
Reamy,
a
Customer
Support
Manager
working
offered Mednick a full refund on January 27, 2014.
for
Precor,
Mednick did
not file his Complaint naming Precor as a defendant until about
four months later, on May 16, 2014.
Also, Precor has not claimed
that Mednick ever made a specific demand, much less one directed
at Precor.
Consistent with the lack of a demand for a refund,
Mednick immediately rejected Reamy’s offer.
Because Precor was
neither a defendant nor responding to a demand, its offer could
not
moot
Mednick’s
claims
provided complete relief.
under
See, id.
- 7 -
Damasco
even
if
the
refund
Moreover, all of the cases upon which Precor relies are
distinguishable.
made
when
the
In three of the cases, the relevant offers were
offerors
were
defendants
stated their demands in their complaints.
and
after
plaintiffs
Damasco, 662 F.3d at
893; Holstein, 29 F.3d at 1146; Rand, 926 F.2d at 597.
And in
Hayman, the offeror complied with a demand for a specific dollar
amount directed to the offeror.
Hayman v. Autohaus on Edens,
Inc.,
(Ill.
734
N.E.2d
1012,
1013-14
App.
Ct.
2000).
In
contrast, as stated above, Precor made its offer before it was a
defendant in a lawsuit and not in response to a demand.
Thus,
Precor’s unsolicited offer for a refund did not moot Mednick’s
claims.
Precor next argues that both Plaintiffs lack standing to
assert claims related to any products that they did not buy.
Plaintiffs
respond
by
arguing that
(1)
the Court
should
not
consider this issue until the class certification stage, and (2)
even if the Court does consider Precor’s arguments, Plaintiffs
allegations
demonstrate
standing
sufficiently.
Because
Plaintiffs ultimately are correct on their second argument, the
Court need not consider their first.
Precor argues that Plaintiffs only have standing to assert
claims related to the Model 9.23 treadmill that they actually
purchased.
There is no uniformity across the country on the
issue of standing for claims related to unpurchased products.
- 8 -
However,
“[t]he
majority
of
the
courts
that
have
carefully
analyzed the question hold that a plaintiff may have standing to
assert claims for unnamed class members based on products he or
she
did
not
purchase
so
long
as
the
products
misrepresentations are substantially similar.”
and
alleged
Quinn v. Walgreen
Co., 958 F.Supp.2d 533, 541 (S.D.N.Y. 2013) (internal quotation
marks omitted).
“[T]he critical inquiry is whether there is sufficient
similarity between the products purchased and not purchased.”
Davidson v. Kimberly-Clark Corp., No. C 14-1783 PJH, 2014 WL
3919857, at *6 (N.D. Cal. Aug. 8, 2014) (internal quotation marks
omitted); see also, In re Frito-Lay N. Am., Inc. All Natural
Litig., No. 12-MD-2413 RRM RLM, 2013 WL 4647512, at *12 (E.D.N.Y.
Aug. 29, 2013).
In a claim based on common misrepresentations,
courts
not
consider
misrepresentations’
only
physical
similarities.
similarities
See,
but
also
the
Davidson,
2014
WL
3919857, at *6 (“In general, courts permit plaintiffs to brings
claims regarding products they did not purchase where common
misrepresentations
are
the
crux
of
[the
plaintiff's]
case.”)
(internal quotation marks omitted); Quinn, 958 F.Supp.2d at 542
(emphasizing both the “substantial similarities between all of
defendants’ Glucosamine Supplements” and “the nearly identical”
misrepresentations on the supplement labels).
“Where product
composition is less important, the cases turn on whether the
- 9 -
alleged
misrepresentations
are
sufficiently
similar
across
product lines.” Brown v. Hain Celestial Grp., Inc., 913 F.Supp.2d
881, 890 (N.D. Cal. 2012).
In this case, Plaintiffs assert claims for fraud and breach
of
warranty.
All
the
claims
rely
on
essentially
misrepresentation — that the Touch Sensors are accurate.
the
same
Many of
the misrepresentations allegedly were made in the same place and
some of the misrepresentations are identical across the nineteen
products.
Further, the Touch Sensors themselves fill the same
function on every machine, and they are used in the same manner
on every machine.
They also allegedly fail in the same manner on
every machine by producing inaccurate readings.
Precor does not dispute any of these similarities.
Precor
argues
that
the
products
are
different
Instead,
mechanically.
Precor first notes that fifteen of the nineteen products are not
treadmills and nineteen of them are equipped with wireless heart
rate
receivers.
This
fact
is
of
little
relevance
because
Plaintiffs’ claims are for a specific component of the machines,
not the machines as a whole or an alternative product.
Neither
of these facts is relevant to the operation or accuracy of the
Touch Sensors.
Precor also notes that three different vendors manufacture
Touch Sensors using different designs, software, and algorithms.
While these differences could be significant, Precor has not yet
- 10 -
shown how, or even claimed that, the Touch Sensors’ accuracy or
failures varied
depending
on
which
vendor
made
them.
Thus,
Precor has failed to show that these differences are anything
more than minor.
See, Quinn, 958 F.Supp.2d at 541-42 (explaining
that under the substantially similar test, “minor differences”
between products do not defeat standing).
Plaintiffs’ allegations are sufficient to establish that the
allegedly
faulty
substantially
Touch
Sensors
similar.
in
Therefore,
the
nineteen
Plaintiffs
products
have
are
individual
standing to pursue claims related to all nineteen products.
Of
course, Precor remains free to challenge Plaintiffs’ ability to
satisfy Rule 23 at the certification stage.
Frito-Lay, 2013 WL
4647512, at *13; Anderson v. Jamba Juice Co., 888 F.Supp.2d 1000,
1006 (N.D. Cal. 2012).
B.
Count
I
in
both
Consumer Fraud Claims
Complaints
asserts
unfair
practice
and
deception claims under the Illinois Consumer Fraud and Deceptive
Business Practices Act (the “ICFA”).
Precor argues that both
Plaintiffs fail to state an ICFA claim.
Precor argues that Plaintiffs’ ICFA claim fails to satisfy
Rule 9(b)
because
they
did
not
allege
“a
single affirmative
statement by Precor regarding the efficacy of the Handle Touch
system on the 9.23 Treadmill.”
However, both Plaintiffs allege
Precor’s 9.23 Treadmill product brochure “invites the consumer to
- 11 -
‘maximize
your
workout
monitoring.’”
benefits
of
results
with
touch
sensor
heart
rate
Both Plaintiffs also allege that Precor touts the
heart
rate
training
zones
on
its
website
and
describes in the 9.23 Owner’s Manual how such training should be
conducted with the Touch Sensors.
representations
completely
are
nonsensical
inaccurate.
These
Of course, all of Precor’s
if
its
Touch
allegations
Sensors
satisfy
Rule
are
9(b)
because they explain the “who, what, where, when and how” of the
alleged fraud.
specific
Hofer, 649 F.3d at 615.
misrepresentations
Precor (the “who”) made
regarding
the
accuracy
and
reliability of its product’s Touch Sensors (the “what”) on its
website, in its advertising, and in its products’ owner’s manuals
(the “where,” “when,” and “how”).
These allegations are “enough
to provide [Precor] with a general outline of how the alleged
fraud scheme operated and of their purported role in the scheme.
Ivanhoe Fin., Inc. v. Highland Banc Corp., No. 03 C 7336, 2005 WL
1498878, at *3 (N.D. Ill. June 9, 2005).
Precor also argues that Plaintiffs’ ICFA claims fail to
satisfy
Rule
9(b)
because
they
did
not
allege
that
Precor
“engaged in particularly deceptive and oppressive behavior.”
both
Plaintiffs
“misrepresentations
fraudulent.”
.
alleged
.
.
are
that
deceptive,
But
Precor’s
misleading
and
Plaintiffs further allege that Precor continued to
make the Touch Sensor representations even when it knew that they
- 12 -
were false.
Any reasonable definition of “deception behavior”
would include such blatant lying, assuming – as the Court must —
that
the
allegations
are
true.
Accordingly,
Plaintiffs
have
stated an ICFA claim.
C.
Breach of Express and Implied Warranty Claims
Counts II and III of Mednick’s Complaint assert claims for
breach of express and implied warranties, respectively.
Precor
first
argues
that
Mednick
specific warranty or representation.
facts
alleged
in
the
complaint.
fails
to
identify
a
This contention ignores the
Beyond
the
above-discussed
representations, Mednick’s Complaint makes reference to the Model
9.23 treadmill Owner’s Manual that states that Precor “warrants
all new Precor products to be free from defects in materials and
manufacture
for
the
warranty
period
set
forth
below.”
Such
statements are not mere sales puffery; rather, they constitute
specific warranties and representations.
Precor next argues that Mednick lacks the required privity
for his express warranty claim.
Generally, a claim for breach of
express warranty does require privity of contract under Illinois
law.
Canadian
Pac.
Ry.
Co.
v.
Williams-Hayward
Protective
Coatings, Inc., No. 02 C 8800, 2005 WL 782698, at *15 (N.D. Ill.
Apr. 6, 2005).
However, “manufacturer documents given directly
to the buyer prior to a purchase may give rise to an express
warranty because the assertions become part of the basis of the
- 13 -
bargain unless clear affirmative proof shows otherwise.”
Brochures,
documents,
and
advertisements
sufficient basis for an express warranty.
“is
enough
for
[Mednick]
to
describe
Id.
may
constitute
Id.
a
At this stage, it
[Precor’s]
promotional
activities and allege that [Mednick] relied on this information.”
Rosenstern v. Allergan, Inc., 987 F.Supp.2d 795, 805 (N.D. Ill.
2013).
Mednick “is not required to specifically identify [on]
what promotional materials [he] relied.”
In
this
case,
requirements.
Mednick
has
far
Id.
surpassed
these
minimum
Mednick identified the specific statements upon
which he relied and identified where, when, and how Precor made
them.
Precor has made no showing to rebut Mednick’s allegations
that the statements formed the basis of his purchase of the Model
9.23 treadmill.
Thus, Mednick need not show privity to maintain
his express warranty claim.
Precor also argues that Mednick lacks the required privity
for his implied warranty claim.
“Where a plaintiff seeks to sue
a manufacturer (as opposed to a seller) for breach of an implied
warranty
establish
.
.
.
Illinois
privity
manufacturer.”
of
.
.
contract
.
require[s]
between
the
the
plaintiff
plaintiff
and
to
the
Reid v. Unilever U.S., Inc., 964 F.Supp.2d 893,
910 (N.D. Ill. 2013).
“At least with respect to purely economic
loss, implied warranties give a buyer of goods a potential cause
of action only against his immediate seller.”
- 14 -
Caterpillar, Inc.
v. Usinor Industeel, 393 F.Supp.2d 659, 678 (N.D. Ill. 2005)
(internal quotation marks omitted).
In this case, Precor did not sell the Model 9.23 treadmill
to Plaintiff.
Plaintiff attempts to escape this fact under Crest
Container Corp. v. R.H. Bishop Co., 445 N.E.2d 19 (Ill. App. Ct.
1982).
But the Crest exception applies only “when the remote
manufacturer knows the identity, purpose and requirements of the
dealer's
customer
and
manufactured
or
delivered
the
goods
specifically to meet those requirements.”
Id. at 25 (internal
quotation marks omitted) (emphasis added).
Crest is inapplicable
because
Precor
identity,
treadmill.
knew
purpose
nothing
and
about
Plaintiff,
requirements,
before
much
he
less
his
bought
the
And, Precor did not manufacture the treadmill to meet
Plaintiff’s specific requirements.
Thus, Mednick is unable to
state a claim for breach of implied warranty.
Mednick has stated a claim for breach of express warranty
but has failed to state a claim for breach of implied warranty.
D.
Magnuson-Moss Claims
Count IV of Mednick’s Complaint and Count II of Bayer’s
Complaint
assert
Magnuson-Moss
claims.
Precor
argues
that
Mednick lacks standing to assert his Magnuson-Moss claim because
Precor
offered
Mednick
a
refund.
argument above.
- 15 -
The
Court
rejected
this
Precor also argues that Bayer’s Magnuson-Moss claim fails to
state a claim for two reasons.
did
not
allege
any
express
First, Precor argues that Bayer
or
implied
warranty.
Precor
is
correct that, ordinarily, Bayer would not be able to establish an
implied warranty because he lacks privity for the same reason
that Mednick lacks privity for his breach of implied warranty
claim.
(N.D.
Smith v. Monaco Coach Corp., 334 F.Supp.2d 1065, 1069
Ill.
maintained
§ 310(d)(1).
2004).
if
However,
there
is
a
a
Magnuson-Moss
written
warranty.
claim
may
15
be
U.S.C.
In such circumstances, a plaintiff also can seek to
enforce an implied warranty even if privity is lacking.
Cohen v.
AM Gen. Corp., 264 F.Supp.2d 616, 621 (N.D. Ill. 2003) (“The
Illinois Supreme Court, however, adopted the rule that privity is
not required where a consumer seeks to bring a claim based on an
implied warranty if a Magnuson–Moss warranty is given.“).
Bayer
alleges in his Complaint that Precor made an express written
warranty on its website and in its product brochure and owner’s
manual.
In his brief, Bayer quoted Precor’s statement in the
Model 9.23 treadmill Owner’s Manual that it “warrants all new
Precor
products
manufacture
for
to
be
the
free
from
warranty
defects
period
in
set
materials
forth
and
below.”
Indisputably, such statements constitute a written warranty as
defined in 15 U.S.C. § 2301(6).
- 16 -
Precor also argues that Bayer’s Magnuson-Moss claim fails
because he did not provide the required notice and reasonable
opportunity to cure.
Generally, a “plaintiff-buyer pursuing a
breach of warranty claim must give the seller notice of the
claimed breach or be barred from recovery.”
Stella v. LVMH
Perfumes & Cosmetics USA, Inc., 564 F.Supp.2d 833, 836 (N.D. Ill.
2008).
Under one of the Connick exceptions, however, “[d]irect
notice is not required when . . . the seller has actual knowledge
of the defect of the particular product.” Connick v. Suzuki Motor
Co., Ltd., 675 N.E.2d 584, 589 (Ill. 1996).
Bayer alleges that every Precor machine at issue in this
case includes a “Touch Sensor Heart Monitoring system . . .
riddled with design flaws.”
aware of these failures.
if
Precor
knew
that
Bayer also alleges that Precor was
Accepting Bayer’s allegations as true,
every
Touch
Sensor
was
defective,
then
necessarily it knew that the Touch Sensor included in Bayer’s
particular treadmill was defective.
See, Stella, 564 F.Supp.2d
at 837 (“[T]he complaint sufficiently alleges [the defendant] had
actual knowledge of the presence of lead in the lipstick.”).
Thus, this case falls under the Connick exception.
In sum, both Mednick and Bayer have stated a claim under the
Magnuson-Moss Act.
- 17 -
E.
Precor
argues
Multi-State Class Allegations
that
the
Court
multi-state class allegations.
should
strike
Plaintiffs’
“Courts in this District . . .
evaluate motions to strike class allegations under Rule 23, not
Rule 12(f).”
Buonomo v. Optimum Outcomes, Inc., No. 13-CV-5274,
2014 WL 1013841, at *1 (N.D. Ill. Mar. 17, 2014).
“Because a
class determination decision generally involves considerations
that are enmeshed in the factual and legal issues comprising the
plaintiff's cause of action, a decision denying class status by
striking
class
inappropriate.”
allegations
at
the
pleading
stage
is
Boatwright v. Walgreen Co., No. 10 C 3902, 2011
WL 843898, at *2 (N.D. Ill. Mar. 4, 2011) (internal citation
omitted).
“In this district, judges have generally addressed
class certification at the pleading stage only when the class
allegations are facially and inherently deficient.”
Machowicz v.
Kaspersky Lab, Inc., No. 14 C 1394, 2014 WL 4683258, at *5 (N.D.
Ill. Sept. 19, 2014) (internal quotation marks omitted).
Precor
allegations
argues
that
related
to
the
Court
Plaintiffs’
should
ICFA,
strike
breach
the
of
class
express
warranty, and Magnuson-Moss claims because the Court might need
to apply the law of many states.
Court
would
actually
need
to
Plaintiffs dispute whether the
apply
state
laws
that
materially in ways relevant to the claims in this case.
differ
Neither
party has provided a sufficient basis for the Court to resolve
- 18 -
the issue.
Regardless, such variations, if they existed, would
not justify striking the class allegations for several reasons.
First, Precor’s argument essentially challenges Plaintiffs
ability to satisfy the requirements of Rule 23.
plaintiff
has
fulfilled
Rule
23
class
action
“Whether a
requirements,
however, is not an appropriate inquiry at the motion to dismiss
stage.”
Howard v. Renal Life Link, Inc., No. 10 C 3225, 2010 WL
4483323, at *2 (N.D. Ill. Nov. 1, 2010).
Second, the mere
possibility that the presence of class members in other states
may require the application of different state laws does not
satisfy the facially and inherently deficient standard.
See,
Saltzman v. Pella Corp., 257 F.R.D. 471, 480 (N.D. Ill. 2009),
aff'd, 606 F.3d 391 (7th Cir. 2010) (“[C]ourts have permitted
named plaintiffs to represent class members from other states in
which the representatives did not reside or make purchases.”);
Muehlbauer v. Gen. Motors Corp., 431 F.Supp.2d 847, 872 (N.D.
Ill. 2006) (“[W]hether these [variations in the laws] destroy
commonality is an issue for another day.”).
Third, “the choice-
of-law issues in nationwide class actions,” such as those upon
which Precor relies in its motion to strike, “are rarely so
uncomplicated that one can delineate clear winning and losing
arguments at an early stage in the litigation.”
Mirfasihi v.
Fleet Mortgage Corp., 450 F.3d 745, 750 (7th Cir. 2006).
- 19 -
None
of
the
cases
upon
which
Precor
relies
offer
any
guidance because all dealt with attempts to certify a class, not
motions to dismiss.
In re Aqua Dots Products Liab. Litig., 654
F.3d 748, 751 (7th Cir. 2011); In re Bridgestone/Firestone, Inc.,
288
F.3d
1012,
1015
(7th
Cir.
2002);
Szabo
v.
Bridgeport
Machines, Inc., 249 F.3d 672, 673 (7th Cir. 2001); In re Gen.
Motors Corp. Dex-Cool Products Liab. Litig., 241 F.R.D. 305, 308
(S.D. Ill. 2007).
The
Court
will
defer
consideration
of
the
impact
of
variations in state law until the class-certification stage.
4. I V.
C ONCLUSION
For the reasons stated herein, the Court rules as follows:
1.
Precor’s
Motion
to
Strike
and
Dismiss
Mednick’s
Complaint [ECF No. 24] is granted in part and denied in part; and
2.
Precor’s Motion to Strike and Dismiss Bayer’s Complaint
[ECF No. 16] is denied.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:11/13/2014
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