Alea v. Wilson Sporting Goods Company et al

Filing 46

MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 11/7/2017.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GEORGE ALEA, individually and on behalf of all
others similarly situated,
Plaintiff,
vs.
WILSON SPORTING GOODS COMPANY,
Defendant.

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17 C 498
Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER
George Alea, on behalf of himself and a putative class, alleges that Wilson Sporting
Goods Company marketed, sold, and refused to honor its warranty on a defective baseball bat in
violation of state law and the Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. § 2301 et
seq. Doc. 20. Wilson moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss some of
Alea’s individual claims and under Rule 12(f) to strike his class allegations. Doc. 22. The
motion is granted in part and denied in part.
Background
In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative
complaint’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N.
Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider
“documents attached to the complaint, documents that are critical to the complaint and referred
to in it, and information that is subject to proper judicial notice,” along with additional facts set
forth in Alea’s brief opposing dismissal, so long as those additional facts “are consistent with the
pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013). The
facts are set forth as favorably to Alea as those materials allow. See Pierce v. Zoetis, Inc., 818

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F.3d 274, 277 (7th Cir. 2016). In setting forth those facts at this stage, the court does not vouch
for their accuracy. See Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 384
(7th Cir. 2010).
In March 2015, Wilson purchased the rights to the Louisville Slugger brand, with certain
exceptions not relevant here. Doc. 20 at ¶ 10. Approximately a year later, after reviewing
Wilson’s online marketing materials, Alea bought a 2016 Louisville Slugger Prime 916
BBP9163 BBCOR baseball bat (the “Prime 916”) for his son. Id. at ¶ 9. The marketing
materials did not mention that the Prime 916’s handle would rotate independently of the barrel,
and Alea would not have purchased the bat had he known that the bat would behave in that
particular way. Ibid. Shortly after Alea purchased the Prime 916, his son noticed that the barrel
and the handle moved independently when he hit a ball. Ibid. Alea tried the Prime 916 and
noticed the same thing. Ibid. The movement appeared to weaken the bat’s power, and Alea’s
son stopped using the bat because it felt “dead.” Ibid. Alea contacted Wilson, but was told that
the movement was normal and that the warranty would not cover a replacement. Ibid.
From June 2015 to April 2016, Wilson distributed the following promotional statement
about the Prime 916:
Maximum SPEED - Extreme POWER - Ultimate BALANCE: The Louisville
Slugger Prime 916 BBCOR Baseball Bat: BBP9163 is here! With the
introduction of their 2016 bat line, players around the nation are finding out
why more Top 25 teams in NCAA baseball step into the box with a Louisville
Slugger in their hands. Slugger made waves in the market with a neverbefore-seen 3-Piece bat construction, but the TRU3 Explosive Power Transfer
Technology in the Prime 916 amplifies those performance characteristics even
further by drastically eliminating sting while allowing for maximum
trampoline effect and a true feel on contact. Combine that with the newly
created FCS (Fused Carbon Structure) Composite and Flex Band Technology,
the Prime 916 showcases the lightest swing weight and largest sweet spot in
the 2016 Slugger lineup. This BBCOR certified model features the Flex Band
Technology in its barrel. By inserting a 1" composite disc right below the
sweet spot, the team in Louisville is able to meet BBCOR standards while

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keeping the barrel walls as thin as possible. Thinner barrel walls results in a
lighter feel, larger sweet spot, and maximum trampoline effect on contact.
Doesn’t sound too bad, right? Louisville Slugger is more than confident that
they’ve created the best bat in baseball and they’re backing it up with the 30Day Performance Promise. If you’re not more confident in your swing in 30
days, send it back! Rounded out by a slick new graphic design and premium
Lizard Skins grip tape, the Prime 916 combines comfort and style and is sure
to help each hitter “Own The Plate”! The Louisville Slugger Prime 916 is
backed by a Full Twelve (12) Month Manufacturer’s Warranty. Free
Shipping!
Id. at ¶ 11. This statement does not mention the Prime 916’s barrel and handle rotating
independently. Id. at ¶ 12. Numerous consumers complained about the barrel and handle
coming apart. Id. at ¶ 13.
The Prime 916’s one-year express warranty, which Wilson referenced in its marketing
materials, id. at ¶ 11, warranted that the bat was free from “manufacturer’s defects.” Id. at ¶ 14.
Set forth on the manufacturer’s website, id. at ¶ 14 n.2, the warranty read in pertinent part:
“Louisville Slugger is proud to continue offering an industry-best one year limited bat warranty
(may vary outside the U.S.).” “Bat Warranty,” http://www.slugger.com/en-us/warranty-bat
(visited July 31, 2017). The warranty then provided a form for customers to complete if they
wished to return a defective non-wood bat; the form included a field entitled, “Where Did You
Buy the Product?” Ibid.
About one year after the Prime 916 was first offered for sale, and without any alteration
in the bat’s construction, Wilson changed the above-referenced marketing language to this:
Maximum SPEED - Extreme POWER - Ultimate BALANCE: The Louisville
Slugger Prime 916 BBCOR Baseball Bat: BBP9163 is here! With the
introduction of their 2016 bat line, players around the nation are finding out
why more Top 25 teams in NCAA baseball step into the box with a Louisville
Slugger in their hands. Slugger made waves in the market with a neverbefore-seen 3-Piece bat construction, but the TRU3 Dynamic Socket
Connection allows for slight movement between the barrel and handle to
further maximize barrel trampoline effect and eliminate negative vibration.
Combine that with the newly created FCS (Fused Carbon Structure)
Composite and Flex Band Technology, the Prime 916 showcases the lightest
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swing weight and largest sweet spot in the 2016 Slugger lineup. This BBCOR
certified model features the Flex Band Technology in its barrel. By inserting
a 1" composite disc right below the sweet spot, the team in Louisville is able
to meet BBCOR standards while keeping the barrel walls as thin as possible.
Thinner barrel walls results in a lighter feel, larger sweet spot, and maximum
trampoline effect on contact. Doesn’t sound too bad, right? Louisville
Slugger is more than confident that they’ve created the best bat in baseball
and they’re backing it up with the 30-Day Performance Promise. If you’re not
more confident in your swing in 30 days, send it back! Rounded out by a
slick new graphic design and premium Lizard Skins grip tape, the Prime 916
combines comfort and style and is sure to help each hitter "Own The Plate"!
The Louisville Slugger Prime 916 is backed by a Full Twelve (12) Month
Manufacturer’s Warranty. Free Shipping!
Doc. 20 at ¶ 16 (emphasis added). Alea contends that the change in the marketing language—
adding “the TRU3 Dynamic Socket Connection allows for slight movement between the barrel
and handle to further maximize barrel trampoline effect and eliminate negative vibration”—was
a ploy by Wilson to pass off a defect as an intentional design element. Id. at ¶ 18.
In his amended complaint, Alea brings individual claims under state consumer protection
law (Count I), state warranty law (Count II), state unjust enrichment law (Count III), and the
MMWA (Count IV). Id. at ¶¶ 29-59. Alea also seeks to represent two classes. The “State
Class,” which seeks relief under state law in Counts I-III, consists of “[a]ll persons residing in
the states of Florida, California, Illinois, Michigan, New Jersey, New York, Massachusetts,
Minnesota, Missouri and Washington, who purchased a Bat from April 1, 2015 through the
present.” Id. at ¶ 19. The “National Class,” which seeks relief under the MMWA in Count IV,
consists of “[a]ll persons residing in the United States who have purchased a Bat from April 1,
2015, through the present.” Ibid. The essence of all claims is the same: Wilson warranted the
Prime 916 bats as free of defects but the bats were in fact defective, and, when pressed, Wilson
did not honor the warranty but instead attempted to pass off the defect as an intended element of
the bat’s design.

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Discussion
Wilson seeks dismissal of Alea’s individual warranty and unjust enrichment claims—but
not his individual state consumer fraud and MMWA claims—and also argues that the class
allegations should be stricken because the state law and MMWA claims are inappropriate for
class treatment. Wilson’s motion hints at other potential grounds for dismissal, such as a
potential failure to comply with Rule 9(b) and a failure to allege facts sufficient to show reliance,
Doc. 21-1 at 3, but he cites no supporting authority and does not develop those arguments, so
they are forfeited. See G&S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012)
(“We have repeatedly held that a party waives an argument by failing to make it before the
district court.”); Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010) (“[P]erfunctory and
undeveloped arguments, and arguments that are unsupported by pertinent authority, are
waived.”) (citation and internal quotation marks omitted).
I.

Governing Law
The court has jurisdiction over Alea’s individual state law claims under 28 U.S.C.

§ 1332(a). Doc. 20 at ¶¶ 9-10. Wilson argues that Florida law governs those claims, Doc. 22-1
at 6-7, while Alea counters that a choice-of-law analysis is premature, Doc. 25 at 4. Alea is
wrong, for to decide whether his individual warranty and unjust enrichment claims fail, the first
step is to ascertain the governing law.
Because this case was filed in Illinois, Illinois choice-of-law rules guide the analysis. See
McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 684 (7th Cir. 2014) (“Federal courts hearing
state law claims under diversity or supplemental jurisdiction apply the forum state’s choice of
law rules to select the applicable state substantive law.”). “Illinois has adopted the approach
found in the Second Restatement of Conflict of Laws.” Barbara’s Sales, Inc. v. Intel Corp., 879

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N.E.2d 910, 919 (Ill. 2007). Under the Second Restatement, the law of the State that “has the
most significant relationship to the occurrence and the parties” applies. Restatement (Second) of
Conflict of Laws § 145(1) (1971); see also Kamelgard v. Macura, 585 F.3d 334, 341 (7th Cir.
2009) (observing that “most states, including Illinois, nowadays apply the law of the state that
has the ‘most significant relationship’ to the claim”). In tort cases, the “most significant
relationship” analysis turns on: “(a) the place where the injury occurred, (b) the place where the
conduct causing the injury occurred, (c) the domicil, residence, nationality, place of
incorporation and place of business of the parties, and (d) the place where the relationship, if
any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145(2); see
also Townsend v. Sears, Roebuck & Co., 879 N.E.2d 893, 901 (Ill. 2007) (same). “Under this
test, the law of the place of injury controls unless Illinois has a more significant relationship with
the occurrence and with the parties.” Tanner v. Jupiter Realty Corp., 433 F.3d 913, 916 (7th Cir.
2006) (quoting Esser v. McIntyre, 661 N.E.2d 1139, 1141 (Ill. 1996)). As the Seventh Circuit
has explained: “[I]n the absence of unusual circumstances, the highest scorer on the ‘most
significant relationship’ test is—the place where the tort occurred. … Victim location and injurer
location are valid considerations. But when they point to two different jurisdictions they cancel
out, leaving the place where the injury (and hence the tort) occurred as the presumptive source of
the law governing the accident.” Abad v. Bayer Corp., 563 F.3d 663, 669-70 (7th Cir. 2009)
(citation and internal quotation marks omitted).
Florida has the most significant relationship to Alea’s individual claims. The first and
most important consideration, where the injury occurred, favors Florida law. Alea resides in
Miami, Florida. Doc. 20 at ¶ 9. The complaint does not allege that Alea read the marketing
materials, purchased the Prime 916, or used it outside of Florida; indeed, the complaint alleges

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that he purchased the bat for his son to use at high school and recreational baseball games. Ibid.
While it is possible that his son used the Prime 916 elsewhere, no allegation suggests this, and
the most reasonable inference is that the bat’s primary (if not exclusive) use was in Florida.
The second, third, and fourth considerations are less important than the first, and in any
event do not counsel strongly for or against applying the law of Florida or, say, Illinois. The
conduct causing the injury is Wilson’s dissemination of the marketing language and its refusal to
honor the warranty. These might be said to have occurred in Illinois (where Wilson’s
headquarters is located, id. at ¶ 10). But the complaint does not offer any allegations about
where the materials were drafted or the warranty decisions were made, and because the
marketing materials and warranty language were disseminated at least broadly enough to be
viewed in Florida, their creation and dissemination, as well as the refusal to honor the warranty,
bears no strong connection to any particular location. The third factor, the parties’ location, does
not point strongly in either direction, as Alea is located in Florida and Wilson is headquartered in
Illinois. The fourth factor, the place where the parties’ relationship was centered, favors Florida,
because the relationship was forged there.
In sum, the governing factors strongly favor applying Florida law to Alea’s individual
claims.
II.

Alea’s Individual State Law Warranty Claim (Count II)
Wilson seeks dismissal of Alea’s state law warranty claims on the ground that he has

failed to allege privity between himself and Wilson. Doc. 22-1 at 6-8. The implied warranty
claim will be addressed first, then the express warranty claim.
With limited exceptions inapplicable here, an implied warranty claim under Florida law
requires privity between the plaintiff and the defendant. See Kramer v. Piper Aircraft Corp., 520

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So.2d 37, 39 (Fla. 1988) (“We agree … that this court in West [v. Caterpillar Tractor Co., 336
So.2d 80 (Fla. 1976),] abolished the no-privity, breach of implied warranty cause of action
… .”); Hinkle v. Cont’l Motors, Inc., 2017 WL 3131465, at *4 (M.D. Fla. July 24, 2017) (“[I]t is
undisputed that Florida law does not provide for a no-privity breach of implied warranty cause of
action.”); Smith v. Wm. Wrigley Jr. Co., 663 F. Supp. 2d 1336, 1342 (S.D. Fla. 2009) (collecting
cases and noting that “[i]t is now well-settled that, barring certain exceptions, under Florida law,
a plaintiff cannot recover economic losses for breach of implied warranty in the absence of
privity”) (citation, internal quotation marks, and brackets omitted). Because Alea does not allege
that he purchased the bat directly from Wilson, his implied warranty claim fails. See Hill v.
Hoover Co., 899 F. Supp. 2d 1259, 1267 (N.D. Fla. 2012) (dismissing a breach of implied
warranty claim under Florida law because the plaintiff “failed to allege that she purchased the
[product] directly from the Defendants, but rather, specifically alleged that she purchased the
[product] from a third-party retailer”); T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844
(N.D. Fla. 1995) (“A plaintiff who purchases a product but does not buy it directly from the
defendant, is not in privity with the defendant.”).
The law of express warranty is murkier. T.W.M. holds that “to recover for the breach of a
warranty, either express or implied, the plaintiff must be in privity of contract with the
defendant.” Ibid. (emphasis added); see also, e.g., Mazzeo v. Nature’s Bounty, Inc., 2014 WL
5846735, at *2 (S.D. Fla. Nov. 12, 2014) (same and collecting cases); Hill, 899 F. Supp. 2d at
1267 (same). As Smith observed, however, numerous state and federal decisions in Florida
permit express warranty claims absent privity. 663 F. Supp. 2d at 1342 (collecting cases). Smith
itself permitted an express warranty claim to proceed without privity, and several later decisions
have done so as well. See Decerbo v. Melitta USA, Inc., 2016 WL 7206244, at *6 (M.D. Fla.

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Oct. 17, 2016); Bohlke v. Shearer’s Food, LLC, 2015 WL 249418, at *11 (S.D. Fla. Jan. 20,
2015); Garcia v. Kashi Co., 43 F. Supp. 3d 1359, 1388-89 (S.D. Fla. 2014).
The court finds Smith persuasive to the extent it holds that privity is not required under
Florida express warranty law where, as here, the “end-purchaser” is unlikely to “expect the seller
or ‘middle man’ to have relevant knowledge, or even expertise, regarding the manufacturer’s
product.” 663 F. Supp. 2d at 1343. As in Smith, there is no reason to think (with all reasonable
inferences drawn in his favor) that Alea expected the retailer—whether online or physical—that
sold him the Prime 916 would provide him with detailed information about the bat’s likely
performance, including any manufacturing defects or other limitations. Ibid. (explaining that
“[i]t defies common sense to argue that purchasers of Eclipse gum presumed that the cashier at
the local convenience store is familiar with the scientific properties of” the gum’s active
ingredient); Karhu v. Vital Pharm., Inc., 2013 WL 4047016, at *6 (S.D. Fla. Aug. 9, 2013)
(“Here, the product in question is a dietary supplement sold online. There are no facts in the
pleadings that indicate that Plaintiff could expect to receive relevant scientific information about
Meltdown’s ingredients from the retailer.”). Consequently, this case is distinguishable from
T.W.M., which concerned a surgically implanted medical device. 886 F. Supp. at 844. Unlike
Alea, the plaintiff in T.W.M. could “reasonably rely on a learned intermediary—his doctor—to
give him relevant information regarding the product and its warranties.” Karhu, 2013 WL
4047016, at *6; see also Smith, 663 F. Supp. 2d at 1343; Bohlke, 2015 WL 249418, at *11
(applying the reasoning of Smith in a case involving the retail sale of certain packaged consumer
foods); Garcia, 43 F. Supp. 3d at 1389 (same).
Moreover, the warranty here was reflected in Wilson’s advertisements and easily
accessible on its websites, and thus was “clearly directed toward the end-purchaser.” Karhu,

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2013 WL 4047016 at *6. As noted, the complaint alleges that Alea purchased the Prime 916
“after reviewing marketing materials online.” Doc. 20 at ¶ 9. Those marketing materials state
that “[t]he Louisville Slugger Prime 916 is backed by a Full Twelve (12) Month Manufacturer’s
Warranty.” Id. at ¶ 11. These allegations yield the reasonable inference that Alea viewed
Wilson’s express warranty and then purchased the bat. Accordingly, given Alea’s allegation that
he “relied on [Wilson’s] express warranties regarding the qualities and benefits of the Bats,”
Doc. 20 at ¶ 44, applying the privity requirement to his express warranty claim would be
inappropriate. See Decerbo, 2016 WL 7206244, at *6. After all, Wilson communicated the
terms of the warranty directly to Alea through the link provided on Louisville Slugger’s website.
See ibid. (reasoning that “common sense dictates that an express warranty can be created
between a manufacturer and purchaser, despite the fact that the parties’ transaction flowed
through a third-party intermediary,” where the plaintiff “relie[d] on representations made on the
[manufacturer’s] packaging” in deciding to purchase the product); Smith, 663 F. Supp. 2d at
1343 (concluding that it was “significant that the express warranty the manufacturer allegedly
breached is contained on the packaging of Eclipse gum,” given that the plaintiff alleged that he
“relied on the warranty when purchasing the gum”); see also Glob. Quest, LLC v. Horizon
Yachts, Inc., 849 F.3d 1022, 1032 (11th Cir. 2017) (“Florida courts have found the privity
requirement to be satisfied when a manufacturer directly provides a warranty to, or otherwise has
direct contact with, a buyer who purchases from a third party.”). The express warranty claim
thus survives dismissal.
III.

Alea’s State Law Unjust Enrichment Claim (Count III)
Wilson contends that Alea’s decision to bring claims at law—in particular, his warranty

and MMWA claims—requires dismissal of his unjust enrichment claim, which lies in equity.

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Doc. 22-1 at 10-11 (citing Jovine v. Abbott Labs., Inc., 795 F. Supp. 2d 1331, 1341-42 (S.D. Fla.
2011)). Wilson’s argument is premature:
[T]he general rule is that if the complaint on its face shows that adequate legal
remedies exist, equitable remedies are not available. However, this doctrine
does not apply to claims for unjust enrichment. It is only upon a showing that
an express contract exists that the unjust enrichment or promissory estoppel
count fails. Until an express contract is proven, a motion to dismiss a claim
for promissory estoppel or unjust enrichment on these grounds is premature.
Williams v. Bear Stearns & Co., 725 So.2d 397, 400 (Fla. App. 1998).
Although Alea has pleaded the existence of an express contract, he has not yet proven its
existence. And it is possible to imagine circumstances where Alea could not prove the existence
of a contract, but where he could nonetheless demonstrate that Wilson has unjustly retained a
benefit conferred upon it by him in inequitable circumstances, which would prove an unjust
enrichment claim under Florida law. See Fla. Power Corp. v. City of Winter Park, 887 So.2d
1237, 1241 n.4 (Fla. 2004) (setting forth the elements of an unjust enrichment claim).
Accordingly, at this early stage of the case, Alea may pursue both a warranty claim and an unjust
enrichment claim. See Hayes v. Moon, 2017 WL 2547205, at *4 (S.D. Fla. June 13, 2017)
(“Florida Courts of Appeal discussing alternative pleadings have emphasized that until an
express enforceable contract is proven the equitable claim of unjust enrichment is not barred.”);
Martorella v. Deutsche Bank Nat’l Tr. Co., 931 F. Supp. 2d 1218, 1228 (S.D. Fla. 2013) (relying
on Williams in concluding that “[i]t is not upon the allegation of the existence of a contract, but
upon a showing that an express contract exists that the unjust enrichment count fails. Until an
express contract is proven, a motion to dismiss a claim for unjust enrichment” on the ground that
a contract between the parties exists “is premature”); see also Green Lumens LLC v. Green
Lumens NE LLC, 2016 WL 8808767, at *4 (S.D. Fla. Aug. 25, 2016) (denying a motion to
dismiss and reasoning, based on Williams, that where the plaintiff “plead[ed] the unjust

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enrichment claim in the alternative, … the unjust enrichment claim does not have to be
dismissed unless and until Defendants’ oral contract is deemed legally enforceable”); Hirsh v.
Silversea Cruises Ltd., 2015 WL 12780626, at *9 (S.D. Fla. Mar. 5, 2015) (“In the absence of
proof that an express contract exists between the parties, dismissal of Plaintiffs’ unjust
enrichment claim would be premature.”); Harris v. Nordyne, LLC, 2014 WL 12516076, at *7-8
(S.D. Fla. Nov. 14, 2014) (same, citing additional cases).
IV.

Class Allegations
A.

State Class Claims

Wilson seeks to dismiss the State Class allegations on two grounds. First, it contends that
Alea lacks “standing” to bring non-Florida law claims. Doc. 22-1 at 11-12. Second, it argues
that given the differences among state consumer protection, warranty, and unjust enrichment
law, class treatment is facially inappropriate. Id. at 12-13. Neither argument persuades.
The “irreducible constitutional minimum of standing consists of three elements. The
plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citation and internal quotation marks
omitted). Here, Alea alleges that he purchased a defective product (injury), that Wilson’s design
flaw and failure to honor a warranty caused financial injury (causation), and that he should be
compensated with money (redressability). “Nothing more is required for standing.” Morrison v.
YTB Int’l, Inc., 649 F.3d 533, 536 (7th Cir. 2011) (where the plaintiffs alleged “that they [were]
victims of a pyramid scheme that saddled them with financial loss, which YTB caused,” holding
that “[t]he judiciary [could] redress that injury by ordering YTB to pay money to the victims”).

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Wilson’s challenge to Alea’s standing does not address any of the components of
standing, but instead rests on the premise that he does not have a viable claim under the
consumer laws of States other than Florida. That premise may be right, but it goes to the merits,
not standing, which is an essential distinction:
Standing is a prerequisite to filing suit, while the underlying merits of a claim
(and the laws governing its resolution) determine whether the plaintiff is
entitled to relief. … When deciding question of standing, courts must look to
the case as a whole, rather than picking apart its various components to
separate the claims for which the plaintiff will be entitled to relief from those
for which he will not. If the court becomes too enmeshed in the plaintiff’s
entitlement to relief, it will stray beyond the standing inquiry into the merits.
Arreola v. Godinez, 546 F.3d 788, 795 (7th Cir. 2008). A plaintiff’s reliance upon inapplicable
law is a good reason to dismiss a claim under Rule 12(b)(6) on the merits, but not to dismiss for
lack of standing. See Morrison, 649 F.3d 536 (explaining that, “[i]f the Illinois Consumer Fraud
Act law does not apply because events were centered outside Illinois, then plaintiffs must rely on
some other state’s law; this application of choice-of-law principles has nothing to do with
standing, though it may affect whether a class should be certified”); Askin v. Quaker Oats Co.,
818 F. Supp. 2d 1081, 1086 (N.D. Ill. 2011) (applying Morrison and concluding that “whether a
resident of a state other than Illinois can sue under [the Illinois Consumer Fraud and Deceptive
Business Practices Act] is a merits question, not a jurisdictional standing question”). Moreover,
the Seventh Circuit has cautioned that when a plaintiff brings a putative class action and the
defendant argues that the plaintiff lacks “standing” to represent members of the putative class,
the court must be “mindful of the Supreme Court’s directive to consider issues of class
certification prior to issues of standing” given that “class certification issues are logically
antecedent to Article III concerns.” Payton v. Cnty. of Kane, 308 F.3d 673, 680 (7th Cir. 2002)
(citing Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999)).

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Wilson’s second argument fails as well. Citing In re Bridgestone/Firestone, 288 F.3d
1012 (7th Cir. 2002), and In re Aqua Dots Product Liability Litigation, 654 F.3d 748 (7th Cir.
2011), Wilson contends that variation among state consumer protection, unjust enrichment, and
warranty law makes class treatment unmanageable. Doc. 22-1 at 12-14. Bridgestone and Aqua
Dots caution strongly against certifying a class such as the one pleaded here, as does Szabo v.
Bridgeport Machines, Inc., 249 F.3d 672, 674 (7th Cir. 2001). However, those cases were
decided on appeals under Rule 23(f) from orders, made on a developed record, certifying or
refusing to certify a class. See Aqua Dots, 654 F.3d at 750; Bridgestone, 288 F.3d at 1015-16;
Szabo, 249 F.3d at 674. Here, by contrast, the case is at the pleading stage.
True enough, the text of Rule 23(c)(1)(A)—“At an early practicable time after a person
sues … as a class representative, the court must determine by order whether to certify the action
as a class action.”—plainly indicates that the court may reject a plaintiff’s attempt to represent a
class as soon as it becomes obvious that he will be unable to satisfy Rule 23. In limited
circumstances, that time can arise at the pleading stage. See Pilgrim v. Universal Health Card,
LLC, 660 F.3d 943, 949 (6th Cir. 2011); Hill v. Wells Fargo Bank, N.A., 946 F. Supp. 2d 817,
829-30 (N.D. Ill. 2013). Those circumstances are not present here. Although Aqua Dots,
Bridgestone, and Szabo strongly caution against certifying multistate consumer protection or
warranty claims, Seventh Circuit precedent teaches that such certifications are not categorically
prohibited. See Martin v. Reid, 818 F.3d 302, 308 (7th Cir. 2016) (noting, in a state law
warranty and consumer fraud case, that Bridgestone “did not mean that nationwide classes are
impermissible as a matter of law”).
In Pella Corp. v. Saltzman, 606 F.3d 391 (7th Cir. 2010), for example, the Seventh
Circuit affirmed the district court’s certification of multistate classes seeking recovery under

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state consumer protection law. In so doing, the court acknowledged Bridgestone and similar
cases, but held that “those cases did not opine that class certification was never appropriate in
consumer fraud cases, only that it was inappropriate in the circumstances before [the court].” Id.
at 393; see also Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 754-61 (7th Cir. 2014) (vacating
the district court’s refusal to certify a multistate consumer fraud class). The class certification
analysis is necessarily contextual, and the context—including whether and how to create
subclasses—is in this instance better explored under Rule 23, on a more developed record, than
under Rule 12(f). See Pella Corp., 606 F.3d at 396.
For these reasons, Wilson’s motion to strike the State Class allegations is denied, without
prejudice of course to Wilson raising its arguments in opposition to any Rule 23 motion filed by
Alea or at some other appropriate juncture.
B.

National Class Claims

The putative National Class seeks relief under the MMWA. The MMWA permits a suit
for breach of “‘warranty arising under State law … .’” Voelker v. Porsche Cars N. Am., Inc.,
353 F.3d 516, 525 (7th Cir. 2003) (quoting 15 U.S.C. § 2301(7)). “Because [the MMWA] do[es]
not modify, or discuss in any way, a state’s ability to establish a privity requirement, whether
privity is a prerequisite to a claim for breach of implied warranty under the [MMWA] therefore
hinges entirely on the applicable state law.” Ibid.
As shown above, Alea’s Florida law implied warranty claim fails for lack of privity, so
his MMWA implied warranty claim fails on the same ground. See Mesa v. BMW of N. Am.,
LLC, 904 So.2d 450, 458 (Fla. App. 2005); see also In re Takata Airbag Prods. Liab. Litig., 193
F. Supp. 3d 1324, 1346 (S.D. Fla. 2016). And because Alea has no MMWA implied warranty
claim, he cannot represent an MMWA implied warranty class. See Pruitt v. City of Chicago, 472

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F.3d 925, 926 (7th Cir. 2006) (reasoning that a plaintiff who loses on the merits cannot satisfy
adequacy under Rule 23(a)(4)); Frahm v. Equitable Life Assur. Soc. of U.S., 137 F.3d 955, 957
(7th Cir. 1998) (same). By the same token, because Alea has a viable Florida law express
warranty claim, he also has a viable MMWA express warranty claim, and therefore is an
appropriate representative for an MMWA express warranty class. See Dee Pridgen and Richard
M. Alderman, Consumer Protection and the Law, at § 14:6 (2016) (“[W]here the manufacturer
issues a written warranty on a consumer product, there is no privity requirement for the
consumer to bring suit to enforce that warranty under Magnuson-Moss.”); Allstate Ins. Co. v.
Toyota Motor Mfg. N. Am., Inc., 2009 WL 3147315, at *3 (N.D. Ill. Sept. 28, 2009) (same).
Wilson’s argument that the MMWA class allegations may be stricken on the pleadings
fails for the reasons set forth above. See Martin, 818 F.3d at 308; Suchanek, 764 F.3d at 754-61;
Pella Corp., 606 F.3d at 393.
Conclusion
Wilson’s motion to dismiss and strike is granted in part and denied in part. Alea’s
implied warranty claims under Florida law and the MMWA are dismissed without prejudice. In
all other respects, Wilson’s motion is denied. If Alea would like to replead the dismissed claims,
he must file a second amended complaint by November 21, 2017. If Alea does not amend his
complaint, Wilson shall answer the surviving portions of the amended complaint by November
29, 2017. If Alea amends his complaint, Wilson shall answer the non-amended claims, and
answer or otherwise plead to the amended claims, by December 6, 2017.

November 7, 2017

____________________________________
United States District Judge

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