Carlson et al v. The Gillette Company et al

Filing 46

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER ENTERED ON DEFENDANTS' 30 Motion to Dismiss for Failure to State a Claim. (Cox, Spencer)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_____________________________________
)
LAUREN CARLSON and JAMAL
)
YUSUF, individually and on behalf of all )
others similarly situated,
)
)
Plaintiffs,
)
)
v.
)
)
THE GILLETTE COMPANY and THE )
PROCTER & GAMBLE COMPANY,
)
)
Defendants.
)
_____________________________________)

Civil Action No.
14-14201-FDS

MEMORANDUM AND ORDER ON
MOTION TO DISMISS
SAYLOR, J.
This is a putative class action against the maker of Duracell batteries, The Gillette
Company, and its parent, The Procter & Gamble Company. The Duracell batteries at issue were
“guaranteed for 10 years in storage.” The complaint alleges that Duracell batteries sometimes
leak when not in use, and that defendants therefore (1) falsely stated that the batteries would not
leak or otherwise fail within the first ten years after purchase and (2) failed to disclose that the
batteries had the potential to leak, all in violation of Mass. Gen. Laws ch. 93A. The complaint
does not allege that any batteries purchased by plaintiffs have actually leaked or otherwise failed.
Nor does it allege that defendants have failed to make good on any guarantee, by refunding the
purchase price or paying for any incidental damage.
Defendants have moved to dismiss the complaint for failure to state a claim upon which
relief can be granted. For the reasons set forth below, the motion will be granted.

I.

Background
A.

Factual Background

The following facts are presented as stated in the complaint.
1.

The Batteries

Prior to April 21, 1999, Duracell, Inc. operated as an independent corporation. (Compl.
¶ 11). On that date, it was acquired by The Gillette Company. (Id.). On October 21, 2005, The
Procter & Gamble Company acquired Gillette, including the Duracell-branded battery line. (Id.).
Gillette continues to use Duracell as a brand name for its line of consumer batteries. (Id.).
On June 1, 2012, defendants announced the launch of “Duralock Power Preserve
Technology” for their entire portfolio of batteries. (Id. ¶ 14). They announced that all Duralock
batteries would be marked with a “Duralock ring” and would be guaranteed for ten years in
storage. (Id.). A June 1, 2012 press release stated:
Duracell research reports that some 20 battery-operated devices reside in the
typical household, so Duralock’s guarantee means that consumers will be more
prepared than ever before to power the devices in their homes regardless of the
situation – from remote controls and toys to clocks and garage door openers, and
essential devices like smoke and carbon monoxide detectors.
“We know that consumers typically don’t spend a large amount of time thinking
about batteries,” said Kuhn. “But with the demand for more battery power on the
rise due to the large amount of battery-operated devices on the market, it’s
important that Duracell is recognized as a power solution they can trust. Whether
a child’s toy runs out of juice, a natural disaster occurs and a flashlight needs to
work, or you’re just looking to kick back and relax with a handheld gadget,
Duralock’s up to 10-year guarantee means that you will always have access to
power when you need it – even if your batteries have been in storage for years.”
The launch of Duralock will be supported with Duracell’s largest marketing
campaign in history, including in-store displays, television and print advertising
and public relations. Duracell with Duralock will be available at mass
merchandisers, industrial, electronics and battery distributors and hardware stores
nationwide starting late summer.
(Id. ¶ 15).
2

Beginning on June 1, 2012, and through at least November 18, 2014 (the “Putative Class
Period”), the product packaging for Duracell Coppertop batteries included a prominent, ten-year
guarantee. (Id. ¶ 16). 1 The guarantee stated, “GUARANTEED for 10 YEARS in storage.”
(Id.). 2 Each individual battery included a date ten years in the future as a representation of the
date before which the battery was guaranteed not to fail. (Id. ¶ 19).
During the Putative Class Period, the back of the Duracell battery packaging contained
the following language: “Caution: May explode or leak, and cause burn injury, if recharged,
disposed of in fire, mixed with different battery type, inserted backwards or disassembled.” (Id.
¶ 17). 3 There was no warning on the packaging that the batteries may leak when used in a
normal manner. (Id. ¶ 20).
Defendants ran a number of television and radio commercials for Duracell batteries
during the Putative Class Period. (Id. ¶ 18). One such advertisement stated: “It just has to work.
Duracell. Trusted Everywhere.” (Id.). Another stated: “Why do more emergency workers
everywhere trust Duracell? Duralock Power Preserve that locks in power up to ten years in
storage—guaranteed. Duracell with Duralock—Trusted everywhere.” (Id.). The latter
advertisement featured a fireman using a flashlight and an AA or AAA battery with the Duralock
ring. (Id.). It aired approximately 1,216 times nationally through April 1, 2013. (Id.).

1

The complaint purports to bring an action on behalf of the named plaintiffs and the following class: “All
purchasers in Massachusetts who bought Duracell Coppertop AA and AAA batteries with Duralock beginning June
1, 2012 throughout the date of notice.” (Compl. ¶ 30).
2

Pictures of the relevant packaging, as represented in paragraph 16 of the complaint, are attached as
Appendix A.
3

Defendants have submitted what they represent are two images of the back of the packaging of relevant
batteries. (Dkt No. 32, Ex. A). Because plaintiffs dispute the authenticity of the image (specifically, whether it
accurately represents the back of each battery package sold during the Putative Class Period), the Court declines to
consider it in conjunction with this motion.

3

Duracell batteries retail at a premium price compared to similarly sized AA and AAA
batteries sold by defendants’ competitors. (Id. ¶ 23). The complaint alleges that “some or all of
the premium price of the Duracell [b]atteries is the result of false and misleading statements
outlined” in the complaint. (Id.).
According to the complaint, Duracell batteries “leak even when used in a normal and
expected manner” and “when not in use.” (Id. ¶¶ 20, 21). Such leakage “can damage any device
that the batteries are stored in.” (Id. ¶ 21).
The complaint alleges that “[d]efendants had knowledge of the problem of leakage in
their AA and AAA sized batteries under normal conditions of use intended by [d]efendants” and
that “[n]umerous complaints [were] filed directly with [d]efendants by consumers showing dates
throughout the class period showing a leakage problem.” (Id. ¶ 24). It also alleges that
“[d]efendants, with specific knowledge of the leakage defect, did knowingly conceal pertinent
facts from the ultimate consumer to enhance sales” and “withheld critical information in order to
increase sales and/or their market share.” (Id. ¶¶ 25, 26). It further alleges that “[d]efendants’
glaring omission that the batteries can leak and ruin electronic devices would, and did, mislead
reasonable consumers.” (Id. ¶ 21).
According to a document submitted by plaintiffs, at least thirty on-line complaints were
posted by consumers on Duracell’s website from August 15, 2011, through February 10, 2014.
(Dkt. No. 34, Ex. 1). Of the thirty customer complaints reflected in that document, nineteen
purport to have been posted within the Putative Class Period. (Id.) Of those nineteen, seven
refer to battery expiration dates from 2014 through 2018, while eleven list no battery expiration
date. (Id.). The lone remaining customer complaint purports to have been posted by “MikeZ” of
New Hampshire; it states, in part: “That’s right, a never used battery, labeled “Dec 2022”, has

4

already failed.” (Id. at 12).
Seven of the nineteen customer complaints posted during the Putative Class Period
explicitly refer to AA or AAA batteries; three refer to only other battery sizes; and the remaining
nine do not refer to a battery size. (Id.).
None of the thirty customer complaints in the document purports to have been posted by
a consumer from Massachusetts. (Id.).
2.

The Plaintiffs

Plaintiffs Lauren Carlson and Jamal Yusuf are residents of Massachusetts who purchased
Duracell batteries in Massachusetts during the Putative Class Period. (Compl. ¶ 4). 4 They had
both seen the ten-year Duralock guarantee on the package label prior to purchasing those
batteries. (Id. ¶ 29). They had also seen television advertisements and heard radio
advertisements concerning the Duralock guarantee, and they contend that they believed at the
time of their purchases that the batteries would not fail for ten years. (Id.). They allege that they
did not know that Duracell batteries could leak even if used as intended. (Id.). They further
allege that if they had known of their potential to fail or leak, they would not have purchased
them. (Id.). Both plaintiffs still possess the purchased batteries. (Id. ¶ 28). There is no
allegation that the batteries have, in fact, leaked.
B.

Procedural Background

On November 18, 2014, plaintiffs mailed a written demand for relief to each defendant.
(Id. ¶ 27). The demand letter identified the plaintiffs and the putative class and described the
alleged unfair or deceptive acts or practices of defendants, as well as the alleged injuries suffered

4

The complaint does not specify the exact dates on which plaintiffs purchased Duracell batteries.
Paragraph 4 of the complaint states that the purchases were made “[d]uring the class period.” Paragraph 28
describes the purchases as having taken place “[a]t various times in the last four years.”

5

by plaintiffs and the putative class. (Id.).
On November 19, 2014, plaintiffs filed their initial complaint in this Court. They filed an
amended complaint on January 6, 2015, and a second amended complaint on April 10, 2015.
The second amended complaint is the operative complaint. It alleges in Count One that
defendants violated Mass. Gen. Laws ch. 93A “[b]y falsely misrepresenting Duracell [b]atteries
as guaranteed not to fail for ten years and by failing to disclose that the Duracell [b]atteries may
leak.” (Id. ¶ 41). Count Two alleges a claim of unjust enrichment.
Defendants have moved to dismiss the complaint for failure to state a claim upon which
relief can be granted.
II.

Legal Standard
On a motion to dismiss, the Court “must assume the truth of all well-plead[ed] facts and

give . . . plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness
Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.
1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must
be enough to raise a right to relief above the speculative level, . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the facts as alleged do
not “possess enough heft to show that plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer
Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (alterations omitted) (internal quotation marks
omitted).

6

Ordinarily, a complaint need only contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). For that reason, “great
specificity is ordinarily not required to survive a Rule 12(b)(6) motion.” Garita Hotel Ltd.
Partnership v. Ponce Federal Bank, F.S.B., 958 F.2d 15, 17 (1st Cir. 1992). However, under
Fed. R. Civ. P. 9(b), in cases “alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of
a person’s mind may be alleged generally.” The purposes of that requirement are (1) to give the
defendants notice and enable them to prepare meaningful responses; (2) to preclude the use of a
groundless fraud claim as a pretext to using discovery as a fishing expedition; and (3) to
safeguard defendants from frivolous charges that might damage their reputations. See In re
Lupron Mktg. & Sales Practices Litig., 295 F. Supp. 2d 148, 170 (D. Mass. 2003) (quoting New
England Data Services, Inc. v. Becher, 829 F.2d 286, 288 (1st Cir. 1987)); see also McGinty v.
Beranger Volkswagen, Inc., 633 F.2d 226, 228-29 (1st Cir. 1980). Under the 9(b) heightened
pleading requirement, a complaint must state the time, place, and content of the alleged false or
fraudulent representations to state a claim for fraud. Epstein v. C.R. Bard, Inc., 460 F.3d 183,
190-91 (1st Cir. 2006). The Rule 9(b) pleading requirement applies both to general claims of
fraud and also to “associated claims where the core allegations effectively charge fraud.” North
American Catholic Educational Programming Foundation, Inc. v. Cardinale, 567 F.3d 8, 15 (1st
Cir. 2009); see Martin v. Mead Johnson Nutrition Co., 2010 WL 3928707, *3 (D. Mass. Sept.
30, 2010) (“A claim under Chapter 93A that involves fraud is subject to the heightened pleading
requirement.”).
III.

Analysis
Mass. Gen. Laws ch. 93A, § 2(a) prohibits “unfair or deceptive acts or practices in the

7

conduct of any trade or commerce.” In order to maintain a claim under chapter 93A, a plaintiff
must allege “(1) a deceptive act or practice on the part of the seller; (2) an injury or loss suffered
by the consumer; and (3) a causal connection between the seller’s deceptive act or practice and
the consumer’s injury.” Casavant v. Norwegian Cruise Line, Ltd., 76 Mass. App. Ct. 73, 76
(2009) (citing Mass. Gen. Laws ch. 93A, § 9). An affirmative act may be deceptive “when it has
the capacity to mislead consumers, acting reasonably under the circumstances, to act differently
from the way they otherwise would have acted (i.e., to entice a reasonable consumer to purchase
the product).” Aspinall v. Philip Morris Cos., Inc., 442 Mass. 381, 396 (2004). A business may
also violate ch. 93A through an omission, as when it “fails to disclose to a buyer or prospective
buyer any fact, the disclosure of which may have influenced the buyer or prospective buyer not
to enter into the transaction.” 940 Mass. Code. Regs. § 3.16(2).
Here, the complaint alleges two separate deceptive acts or practices on the part of
defendants: an affirmative misrepresentation and a material omission. The Court will consider
each in turn.
A.

The Affirmative Representations on the Battery Packaging

Plaintiffs contend that by placing the language “guaranteed for 10 years in storage” on
the packaging, defendants led them to believe that the purchased batteries had absolutely no
potential to leak or otherwise fail within ten years of purchase. Plaintiffs allege that the batteries
in fact have the potential to leak, and that therefore the statement was an affirmative
misrepresentation that induced them to purchase batteries that they would not otherwise have
purchased.
Taking the allegations in the complaint to be true, the Court will assume that Duracell
batteries “may leak when used in a normal and expected manner”—in other words, that they

8

have some propensity to leak. The question, then, is whether under those circumstances the
phrase “guaranteed for 10 years in storage” was an actionable affirmative misrepresentation. For
a number of reasons, the Court finds that it was not.
First, the guarantee is expressly limited in scope to the first ten years after purchase. But
the complaint contains no actual or express allegation that the batteries have the potential to leak
within that period. In fact, none of the allegations of leakage refer to any time period of any
kind. (See Compl. ¶¶ 20-21, 24). Although plaintiffs at oral argument made it clear that
plaintiffs contend that the batteries sometimes leak within ten years, the Court is limited at this
stage to evaluating the four corners of the complaint, not statements made at oral argument. See
Young v. Lepone, 305 F.3d 1, 10-11 (1st Cir. 2002) (“The fate of a motion to dismiss under Rule
12(b)(6) ordinarily depends on the allegations contained within the four corners of the plaintiff’s
complaint.”). 5
Second, the guarantee on the packaging is limited explicitly to batteries that are kept “in
storage.” Thus, any allegations in the complaint about battery leakage that takes place outside of
storage conditions would appear to be irrelevant to plaintiffs’ claims. For example, the
allegation in paragraph 20 of the complaint that “[t]he Duracell [b]atteries leak even when used
in a normal and expected manner” and the allegation in paragraph 24 that “[d]efendants had
knowledge of the problem of leakage in their AA and AAA sized batteries under normal
conditions of use intended by [d]efendants” both appear to refer to leakage that takes place
during or after “use,” not “in storage.” Such leakage would not appear to be covered by the

5

The only clear reference to an instance of a battery purchased after June 1, 2012, having leaked within ten
years is found in the “amalgamation” of on-line customer complaints submitted by plaintiffs in conjunction with
their opposition to the motion to dismiss. (See Dkt. No. 34, Ex. 1, at 12 (Post by “MikeZ”) (“That’s right, a never
used battery, labeled “Dec 2022”, has already failed.”)). The customer complaint in which that reference appears
was apparently posted by a consumer from New Hampshire. (Id.). Defendants object to the inclusion of the
customer complaints in the record. Because the Court finds nothing in the complaints that would compel a different
result, it assumes without deciding that they are properly part of the record.

9

guarantee. (Compl. ¶¶ 20, 24) (emphasis added). 6
Finally, and most importantly, the statement that Duracell batteries are “guaranteed for 10
years in storage” is simply not a promise that the batteries have no potential whatsoever to leak
or otherwise fail within that time. All consumer products, indeed all manufactured products,
have some propensity to fail. They are designed and manufactured by human beings, and human
beings make mistakes. A “guarantee” is not a promise of perfection. No reasonable consumer
would believe otherwise. 7 Nor is a “guarantee” a statement of the current condition of the
product, such as a promise that the batteries are made from certain materials or according to
certain manufacturing methods.
Instead, a “guarantee” is a promise by the manufacturer that if the product does not
perform as anticipated, the company will repair or replace the product or refund the purchase
price (and, under some circumstances, pay damages). Put another way, a “guarantee” is a form
of an express warranty. See Mass. Gen. Laws ch. 106, § 2-313(1)(a); Anthony’s Pier Four, Inc.
v. Crandall Dry Dock, Eng’rs, Inc., 396 Mass. 818, 823 (citing Clevenger v. Haling, 379 Mass.
154, 157-59 (1979). 8 That also comports with the common understanding of the term
“guarantee” in connection with the sale of a product. 9 Indeed, because no set of products has

6

The only allegation in the complaint that may refer to leakage that takes place while batteries are “in
storage” appears in paragraph 21: “Defendants conspicuously failed to disclose that the Duracell [b]atteries leak
when not in use.” However, a battery that is “not in use” may not necessarily be “in storage.” That language could
also refer to a battery that has been used previously (and perhaps extensively) and then left inside a device between
uses. In any event, the precise meaning of “in storage” is not clear.
7

Notably, the complaint does not allege that defendants have made an affirmative representation about the
rate of failure of the batteries during testing, or otherwise.
8

Subsection (2) of section 2-313 states that “[it] is not necessary to the creation of an express warranty that
the seller use formal words such as ‘warrant’ or ‘guarantee’.” That subsection thus implies that including the word
“guarantee” in a promise would make the seller’s intention to create an express warranty particularly clear.
9

In their opposition to the motion to dismiss, plaintiffs cited a definition of “guarantee” from the
Cambridge on-line dictionary that included the language, “If you guarantee something, you promise that a particular
thing will happen or exist.” (Pl. Opp. at 6 (citing Cambridge Dictionaries Online,

10

ever been (or ever could be) completely perfect, a broader interpretation of the term could render
its use by any manufacturer in the sale of any product to be a false (and therefore actionable)
statement.
Accordingly, to an objectively reasonable consumer, the use of the term “guaranteed” on
the battery packaging would not be interpreted as anything beyond a promise to repair, refund, or
replace (and, possibly pay, other damages caused by) a failed battery. See Aspinall, 442 Mass. at
395. Although the question of “[w]hether conduct is deceptive is initially a question of fact,” it
is one that is “to be answered on an objective basis.” Id. at 394. Considered objectively, and
with the aid of common sense, the use of the disputed label does not constitute a “deceptive act[]
or practice[]” within the meaning of Chapter 93A. 10
The allegedly deceptive television and radio advertisements referred to in the complaint
fare no better. The first of the two advertisements allegedly stated, “It just has to work. Duracell.
Trusted Everywhere.” (Compl. ¶ 18). That advertisement does not make an explicit promise or
guarantee; at most, it “amounts to ‘nothing more than a kind of self-directed corporate puffery.’”
Millen Indus., Inc. v. Flexo-Accessories Co., Inc., 5 F. Supp. 2d 72, 74 (1998) (quoting Shaw v.
Digital Equip. Corp., 82 F.3d 1194, 1218 (1st Cir. 1996)). The second advertisement quoted in
the complaint allegedly stated, “Why do more emergency workers everywhere trust Duracell?
Duralock Power Preserve that locks in power up to ten years in storage—guaranteed. Duracell
with Duralock—Trusted everywhere.” (Compl. ¶ 18). That advertisement simply makes the

http://dictionary.cambridge.org/us/dictionary/americanenglish/guarantee)). Notwithstanding the lack of specificity
in that definition as to what is being promised to happen or exist, it is noteworthy that the first definition listed on
the website cited by plaintiffs is “a promise that something will be done or will happen, esp. a written promise by a
company to repair or change a product that develops a fault within a particular period of time.” Cambridge
Dictionaries Online, http://dictionary.cambridge.org/us/dictionary/americanenglish/guarantee (emphasis added).
10

The complaint does not allege that defendants have failed to compensate plaintiffs for a failed battery or
even that any of the purchased batteries actually failed.

11

same guarantee as that on the packaging. 11
Accordingly, the complaint does not state a claim upon which relief can be granted based
on any alleged affirmative misrepresentations by defendants.
B.

The Allegedly Deceptive Omission

Plaintiffs further contend that, notwithstanding the effect of the guarantee, defendants
violated 940 Mass. Code Regs. § 3.16(2) (and, thereby, Mass. Gen. Laws ch. 93A) by “failing to
disclose that the Duracell [b]atteries may leak.” (Compl. ¶ 41). The cited regulation specifies
that it is a violation of ch. 93A, § 2 for a seller to “fail[] to disclose to a buyer or prospective
buyer any fact, the disclosure of which may have influenced the buyer or prospective buyer not
to enter into the transaction.” 940 Mass. Code Regs. § 3.16(2). Despite the broad language of
the regulation, it has been interpreted to proscribe only a “material, knowing, and willful
nondisclosure,” Underwood v. Risman, 414 Mass. 96, 99 (1993), that is “likely to mislead
consumers acting reasonably under the circumstances.” Mayer v. Cohen-Miles Ins. Agency, Inc.,
48 Mass. App. Ct. 435, 443 (2000) (citing Commonwealth v. AmCan Enters., 47 Mass. App. Ct.
330, 334 (1999)).
Here, the complaint expressly alleges that “[h]ad [p]laintiffs known of the Duracell
potential to fail, leak and/or damage the [p]laintiffs’ electronics, they would not have purchased
Duracell [b]atteries.” (Compl. ¶ 29). Taking that allegation as true, then the undisclosed
potential for battery leakage was indisputably a fact that would “have influenced [plaintiffs] not
to enter into the transaction” to purchase the batteries. See 940 Mass. Code Regs § 3.16(2).
That does not end the inquiry, however. In order to make out a claim under the

11

As above, the Court expresses no opinion as to whether the statements made in the quoted advertisements
could give rise to a valid claim for breach of express warranty under Massachusetts law.

12

regulation, a complaint must allege a “material, knowing, and willful nondisclosure,”
Underwood, 414 Mass. at 99, that is “likely to mislead consumers acting reasonably under the
circumstances.” Mayer, 48 Mass. App. Ct. at 443. Here, although the complaint appears to
sufficiently allege knowledge and willfulness on the part of defendants, see (Compl. ¶¶ 24-26);
Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake . . . knowledge[] and other conditions of a
person’s mind may be alleged generally.”), its allegations, even when taken as true, do not
establish that defendants’ alleged nondisclosure was material or was likely to mislead a
reasonable consumer.
The complaint contains only general allegations that Duracell batteries “leak” (or had the
“potential to” leak) under certain conditions. It includes no allegations that state the extent of the
leakage problem or even that the problem was significant, substantial, or widespread. The fact
that some small percentage of the products may fail, without more, is not a fact that is likely to
influence an objectively reasonable customer; all products fail to at least some small degree. At
a minimum, without a sense of the magnitude of the issue (Was it one battery in a billion? One
in two?), it is impossible to ascertain whether the “potential to fail” was material.
The closest such allegation is that which refers to the “[n]umerous complaints filed
directly with [d]efendants by consumers showing dates throughout the class period showing a
leakage problem.” (Compl. ¶ 24). An indication that “numerous” batteries leaked over a period
of years, however, without any other data points, such as the total amount of batteries sold, or the
leakage rates of comparable batteries sold by other manufacturers, hardly supports an inference
that any substantial leakage problem existed. Moreover, a review of the thirty customer
complaints submitted by plaintiffs reveals that eleven were posted prior to the start of the
Putative Class Period; seven of the remaining nineteen recite expiration dates prior to 2022 (such

13

that any ten-year guarantee would have to have been made prior to the Putative Class Period);
and three of the remaining twelve refer to battery sizes other than AA and AAA. (Dkt. No. 34,
Ex. 1). 12
Plaintiffs contend that because Duracell charges a “premium price compared to similarly
sized AA and AAA batteries of competitors’ products,” reasonable consumers would be
dissuaded from purchasing its batteries upon knowledge of any leakage problem. (See Compl.
¶ 23). Again, without any information whatsoever as to the likelihood of leakage (either in
Duracell batteries or competing batteries), a reasonable consumer would not have any basis on
which to determine that Duracell’s “premium price” was unjustified as compared to that of its
competitors. Thus, if he or she was otherwise inclined to purchase Duracell batteries, he or she
would not be “influenced . . . not to enter into the transaction” by the bare allegations contained
within the complaint. That plaintiffs apparently would have been so influenced is not sufficient
to state a claim under ch. 93A. See Aspinall, 442 Mass. at 395 (noting that the ch. 93A standard
is somewhat “difficult to satisfy because it depends on the likely reaction of a reasonable
consumer rather than an ignoramus”).
In short, the complaint fails to allege sufficient facts to support an inference that any
relevant leakage problem—or, by extension, the nondisclosure of such a problem—was
“material.” See Mayer, 48 Mass. App. Ct. at 443 (quoting Underwood, 414 Mass. at 99).
Further, and similarly, it does not support an inference that knowledge of the leakage problem
would have affected the behavior of a reasonable consumer. See id.

12

Because the complaint specifically alleges that Duracell changed, or purported to change, its battery
technology as of June 1, 2012, any leakage problem relating to batteries sold before that date would not appear to be
relevant to the alleged nondisclosure. (See Compl. ¶¶ 14-15).

14

Accordingly, the complaint does not state a claim upon which relief can be granted
arising out of any alleged material omission.
IV.

Conclusion
For the reasons set forth above, defendants’ motion to dismiss the complaint is

GRANTED.
So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: October23, 2015

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APPENDIX A

16