KUZIAN v. ELECTROLUX HOME PRODUCTS, INC.

Filing 36

OPINION. Signed by Judge Noel L. Hillman on 3/27/2013. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARIUSZ KUZIAN, JAMES G.
BROWN, DEBRA A. THOMAS-BROWN,
and IRMA LEDERER,

Civil No. 12-3341 (NLH/AMD)
OPINION

Plaintiffs,
v.
ELECTROLUX HOME PRODUCTS,
INC.,
Defendant.

APPEARANCES:
BRUCE HELLER NAGEL
DIANE E. SAMMONS
NAGEL RICE, LLP
103 EISENHOWER PARKWAY
SUITE 201
ROSELAND, NJ 07068
JOHN N. POULOS
JOSEPH LOPICCOLO
POULOS LOPICCOLO PC
1305 SOUTH ROLLER ROAD
OCEAN, NJ 07712
On behalf of plaintiffs
JEFFREY M. GARROD
ORLOFF, LOWENBACH, STIFELMAN
& SIEGEL, P.A.
101 EISENHOWER PARKWAY
ROSELAND, NJ 07068
C. BRANDON WISOFF
THOMAS B. MAYHEW
FARELLA BRAUN + MARTEL LLP
235 MONTGOMERY STREET - 17TH FLOOR
SAN FRANCISCO, CA 94104
On behalf of defendant

HILLMAN, District Judge

I.

BACKGROUND
In this consolidated putative class action, currently

pending before the Court are the motions of defendant Electrolux
Home Products, Inc. (“Electrolux”) to dismiss the four
plaintiffs’ complaints,1 as well as plaintiffs’ motion to appoint
interim class counsel.

Plaintiffs, three from New Jersey and one

from New York,2 claim that the ice makers in their refrigerators,
manufactured by Electrolux, are defective.

Plaintiffs contend

that even though Electrolux knew of this defect since at least
February 2008, Electrolux continued to manufacture and sell
refrigerators with this defect.3

Plaintiffs claim that

1

One pending motion to dismiss seeks the dismissal of the
complaint of a fifth plaintiff. (See Docket No. 21.) That
plaintiff’s complaint was dismissed by stipulation of the parties
after the motion was filed.
2

Plaintiff Irma Lederer’s case was transferred by consent of
the parties from the Southern District of New York to this Court,
and consolidated with the New Jersey plaintiffs’ case. Lederer’s
case alleges similar allegations as the New Jersey plaintiffs,
but her case is premised on New York law. The Court must
therefore analyze Lederer’s complaint separately from the New
Jersey plaintiffs’ complaint.
3

Plaintiff Mariusz Kuzian also claims that the electronic
display on the front of his refrigerator stopped functioning. It
is unclear whether he is claiming a separate defect, or that the
malfunction of the electronic display was the result of the
leaking ice maker. The Court reads plaintiffs’ complaint as
alleging claims relating only to the allegedly defective ice
maker. Should plaintiffs wish to amend their complaint to
articulate other bases for their claims, they should do so in
2

Electrolux provided repairs to the ice makers as part of the oneyear express warranty, but that Electrolux knew that the repairs
would be temporary and only last long enough to get past the oneyear mark.

Plaintiffs claim that Electrolux’s marketing and sale

of its “top of the line” refrigerators that provided “ice at your
fingertips” and “nine pounds of ice in 24 hours” constitutes
consumer fraud and violates the express and implied warranties
because Electrolux knew that the ice makers were defective when
they advertised and sold them and would not perform as
advertised.

Plaintiffs are seeking the certification of a class

comprising of all parties who have purchased Electrolux
refrigerator models that contain the defective ice makers.
Electrolux has moved to dismiss most of plaintiffs’ claims
on various bases.

Electrolux’s main argument is that the New

Jersey plaintiffs’ fraud and implied warranty claims are subsumed
by the New Jersey Products Liability Act, N.J.S.A. 2A:58C-1, et
seq., because those claims allege a defective product that has
caused damage to other property.

Electrolux also argues that the

plaintiffs do not have standing to pursue claims for
refrigerators that they did not purchase.
opposed Electrolux’s motion.

Plaintiffs have

As to Electrolux’s main arguments,

plaintiffs contend that their claims may proceed because they are
not product defect claims, and because the same defective ice

accordance with the Federal Rules.
3

maker is in numerous Electrolux refrigerator models.
For the reasons expressed below, Electrolux’s motions will
be denied in part and granted in part, and plaintiffs’ motion to
appoint interim class counsel will be denied without prejudice.
II.

JURISDICTION
Plaintiffs assert that this Court has jurisdiction over this

matter pursuant to 28 U.S.C. § 1332(d)(2), the Class Action
Fairness Act (CAFA), which provides, in relevant part, that
“district courts shall have original jurisdiction of any civil
action in which the matter in controversy exceeds the sum or
value of $5,000,000, exclusive of interest and costs, and is a
class action in which . . . (A) any member of a class of
plaintiffs is a citizen of a State different from any
defendant.”4
III. ELECTROLUX’S MOTIONS TO DISMISS
A.

STANDARD FOR MOTION TO DISMISS

When considering a motion to dismiss a complaint for failure
to state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6), a court must accept all
well-pleaded allegations in the complaint as true and view them
in the light most favorable to the plaintiff.

4

Evancho v.

Another jurisdictional requirement under CAFA is that the
proposed class contains at least 100 members. 28 U.S.C. §
1332(d)(6). Plaintiff claims that the proposed class will have
more than 100 members.
4

Fisher, 423 F.3d 347, 351 (3d Cir. 2005).

It is well settled

that a pleading is sufficient if it contains “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8(a)(2).

Under the liberal federal

pleading rules, it is not necessary to plead evidence, and it is
not necessary to plead all the facts that serve as a basis for
the claim.

Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d

Cir. 1977).

However, “[a]lthough the Federal Rules of Civil

Procedure do not require a claimant to set forth an intricately
detailed description of the asserted basis for relief, they do
require that the pleadings give defendant fair notice of what the
plaintiff’s claim is and the grounds upon which it rests.”
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3
(1984) (quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claim.’”
Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft
v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly
expounded the pleading standard for ‘all civil actions’ . . .
.”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(“Iqbal . . . provides the final nail-in-the-coffin for the ‘no
set of facts’ standard that applied to federal complaints before

5

Twombly.”).
Following the Twombly/Iqbal standard, the Third Circuit has
instructed a two-part analysis in reviewing a complaint under
Rule 12(b)(6).

First, the factual and legal elements of a claim

should be separated; a district court must accept all of the
complaint's well-pleaded facts as true, but may disregard any
legal conclusions.
Ct. at 1950).

Fowler, 578 F.3d at 210 (citing Iqbal, 129 S.

Second, a district court must then determine

whether the facts alleged in the complaint are sufficient to show
that the plaintiff has a “‘plausible claim for relief.’”
(quoting Iqbal, 129 S. Ct. at 1950).

Id.

A complaint must do more

than allege the plaintiff's entitlement to relief.

Id.; see also

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(stating that the “Supreme Court's Twombly formulation of the
pleading standard can be summed up thus: ‘stating . . . a claim
requires a complaint with enough factual matter (taken as true)
to suggest’ the required element.

This ‘does not impose a

probability requirement at the pleading stage,’ but instead
‘simply calls for enough facts to raise a reasonable expectation
that discovery will reveal evidence of’ the necessary element”).
A court need not credit either “bald assertions” or “legal
conclusions” in a complaint when deciding a motion to dismiss.
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30
(3d Cir. 1997).

The defendant bears the burden of showing that
6

no claim has been presented.

Hedges v. U.S., 404 F.3d 744, 750

(3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926
F.2d 1406, 1409 (3d Cir. 1991)).
Finally, a court in reviewing a Rule 12(b)(6) motion must
only consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.

S.

Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd., 181
F.3d 410, 426 (3d Cir. 1999).

A court may consider, however, “an

undisputedly authentic document that a defendant attaches as an
exhibit to a motion to dismiss if the plaintiff’s claims are
based on the document.”

Pension Benefit Guar. Corp. v. White

Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

If

any other matters outside the pleadings are presented to the
court, and the court does not exclude those matters, a Rule
12(b)(6) motion will be treated as a summary judgment motion
pursuant to Rule 56.
B.

Fed. R. Civ. P. 12(b).

ANALYSIS OF THE NEW JERSEY PLAINTIFFS’ COMPLAINT
1.

Whether plaintiffs’ claims are subsumed under the
NJPLA

Electrolux argues that all of the New Jersey plaintiffs’
claims - except for breach of express warranty - are subsumed
under the NJPLA because the Act constitutes the exclusive remedy
for claims arising out of a defective product under New Jersey

7

law.

Plaintiffs argue that their claims are not subsumed by the

NJPLA because their claims are not product liability claims.
The NJPLA was enacted by the New Jersey Legislature in 1987
“based on an ‘urgent need for remedial legislation to establish
clear rules with respect to certain matters relating to actions
for damages for harm caused by products.’”

Sinclair v. Merck &

Co., Inc., 948 A.2d 587, 593 (N.J. 2008) (citing N.J.S.A.
2A:58C-1(a)).

In 2007, the New Jersey Supreme Court set forth

substantive guidance regarding the scope of the NJPLA and
explicitly recognized that “‘[w]ith the passage of the Product
Liability Act, . . . there came to be one unified, statutorily
defined theory of recovery for harm caused by a product.’”

In Re

Lead Paint Litigation, 924 A.2d 484, 503 (N.J. 2007) (citation
omitted).

The New Jersey Supreme Court also observed that “[t]he

language chosen by the Legislature in enacting the PLA [was] both
expansive and inclusive, encompassing virtually all possible
causes of action relating to harms caused by consumer and other
products.”

Id. (citing N.J.S.A. 2A:58C-1(b)(3)).

A product liability action is statutorily defined as “any
claim or action brought by a claimant for harm caused by a
product, irrespective of the theory underlying the claim, except
actions for harm caused by breach of an express warranty.”
N.J.S.A. 2A:58C-1(b)(3).

The NJPLA further defines the type of

“harm” caused by a product to include the following: “(a)
8

physical damage to property, other than to the product itself;
(b) personal physical illness, injury or death; (c) pain and
suffering, mental anguish or emotional harm; and (d) any loss of
consortium or services or other loss deriving from any type of
harm described in subparagraphs (a) through (c) of this
paragraph.”

N.J.S.A. 2A:58C-1(b)(2) (emphasis added).

Thus,

what kind of “harm” a defective product causes is dispositive of
whether the NJPLA governs claims brought for that harm.
In this case, plaintiffs allege that the defective ice
makers failed to produce ice.

They also allege that the ice

makers leaked water into the refrigerators causing the electrical
components to short out and malfunction, which caused the
refrigerators to warm to unsafe temperatures.

This alleged harm

is physical damage to the product itself, and it is explicitly
excluded from the NJPLA.

Thus, these claims are not subsumed by

the NJPLA and cannot be dismissed on that basis.
Plaintiffs also allege, however, that the defective ice
makers and resulting leaks caused food to spoil and caused damage
to flooring, walls and other personal property beyond the
refrigerator itself.

Electrolux argues that these damages show

“physical damage to property, other than to the product itself,”
which makes plaintiffs’ claims be explicitly subsumed by the
NJPLA.
Electrolux’s attempt to transform plaintiffs’ claims into
9

product defect tort claims is unavailing.

Even though spoiled

food and damage to floors, walls, and other property do not
strictly constitute harm to the refrigerator itself, they are
consequential, anticipated economic losses resulting from the
defect in the refrigerator.

As such, they are not subsumed by

the NJPLA.
The New Jersey courts have explained, “The Product Liability
Act and common law tort actions do not apply to damage caused to
the product itself, or to consequential but purely economic
losses caused to the consumer because of a defective product.”
Ford Motor Credit Company, LLC v. Mendola, 48 A.3d 366, 374 (N.J.
Super. Ct. App. Div. 2012).

Moreover,

As comprehensive as the Products Liability Act is and
appears to be, its essential focus is creating a cause
of action for harm caused by defective products. The
Act's definition of harm so as to exclude damage a
defective product does to itself is not merely the
Legislature's embrace of the economic loss rule, but a
recognition that the Act's goal is to serve as a
vehicle for tort recoveries. Simply put, the Act is
not concerned with providing a consumer with a remedy
for a defective product per se; it is concerned with
providing a remedy for the harm or the damage that a
defective product causes to people or to property.
Dean v. Barrett Homes, Inc., 8 A.3d 766, 777 (N.J. 2010)
(explaining the history and purpose of the economic loss rule,
and also explaining that the NJPLA was not “designed to transform
a contract-like claim, that is a claim that the product itself in

10

some fashion fails to operate as it should, into a tort claim”).5
Consequently, because plaintiffs’ claims are not the type
contemplated by the NJPLA, they are not subsumed by the Act, and
cannot be dismissed on that basis.6
5

To give a hypothetical example of the distinction, the
NJPLA would most likely subsume a claim for damages relating to a
plaintiff’s electrocution by the electrical shorts caused by the
faulty ice maker.
6

In Dean v. Barrett Homes, Inc., 8 A.3d 766, 777 (N.J.
2010), the New Jersey Supreme Court reversed the lower court’s
ruling that the plaintiffs were precluded from pursuing their
product defect case under the NJPLA. The lower court had held
that the plaintiffs’ claim for damages to their homes by a
defective synthetic stucco system could not proceed under the
NJPLA. The Supreme Court affirmed in part, explaining that the
lower court was correct that the plaintiffs could not recover
under the NJPLA for damage to the synthetic stucco system itself.
The Supreme Court reversed, however, the lower court’s ruling
that the economic loss rule barred the plaintiffs’ claims for
damage to the structure of the house or its immediate environs.
The Court found that the synthetic stucco system was “not so
fully integrated into the structure of the house that the house
effectively became the product for purposes of the economic loss
rule.” Dean, 8 A.3d at 777.
Even though the court in Dean did not need to determine
whether the “integrated product doctrine” was recognized in New
Jersey in reaching its decision, it found that the stucco system
was “affixed to the exterior walls to create a moisture barrier,
much like exterior vinyl siding. As such, it did not become an
integral part of the structure itself, but was at all times
distinct from the house. It remained, therefore, a separate
product for purposes of our analysis.” Id. at 775. The Dean
court also noted that the Third Circuit originally used the
integrated product doctrine in a case arising under Pennsylvania
law, but that New Jersey federal courts have employed that theory
when called upon to apply New Jersey law as well, citing Int'l
Flavors & Fragrances, Inc. v. McCormick & Co., Inc., 575 F. Supp.
2d 654, 662-63 (D.N.J. 2008) (explaining that “damage done to a
final product by a defective component or ingredient does not
constitute damage to property ‘other than to the product itself.’
”); Travelers Indem. Co. v. Dammann & Co., Inc., 592 F. Supp. 2d
752, 762-63 (D.N.J. 2008) (barring Products Liability Act claim
11

2.

Standing

Defendants argue that plaintiffs cannot maintain their
putative class action for ice maker defects in all of
Electrolux’s refrigerator models because plaintiffs lack standing
to bring claims for refrigerator models they did not purchase.
Plaintiffs argue that their claims may proceed at this motion to
dismiss stage because they have pleaded defects in certain
Electrolux refrigerator model numbers which they believe all
contain the same ice maker.
Article III of the Constitution restricts the “judicial
power” of the United States to the resolution of cases and
controversies.

See Valley Forge Christian Coll. v. Ams. United

for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982).
Within this restriction is the requirement that a litigant have

because defective vanilla beans were incorporated into vanilla
extract and other flavorings); Easling v. Glen-Gery Corp., 804 F.
Supp. 585, 590-91 (D.N.J. 1992) (rejecting apartment complex
purchaser's Products Liability Act claim for damaged studs and
interiors caused by defective brick facing because the product
was not bricks, but the completed apartment complex); In re
Merritt Logan, Inc., 901 F.2d 349, 362 (3d Cir. 1990) (under
Pennsylvania law, precluding tort claim against manufacturer of
defective refrigeration system by concluding that damage to food
that spoiled was damage of the kind bargained for in commercial
transaction).
In contrast to stucco system separate from a house, in this
case the ice maker is an integral part of the refrigerator--it
cannot operate separate from or independent of the refrigerator.
Thus, the consequential damages caused by the faulty ice makers
to the food, floor and walls cannot be parsed out as separate
tort claims and subsumed by the NJPLA.
12

standing to challenge the action sought to be adjudicated in the
lawsuit.

Id.

The doctrine of standing is based both on

prudential concerns and on constitutional limitations on the
jurisdiction of the federal courts.
154, 162 (1997).

Bennett v. Spear, 520 U.S.

Absent Article III standing, a federal court

does not have subject matter jurisdiction to address a
plaintiff's claims, and they must be dismissed.

Taliaferro v.

Darby Tp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006).
To satisfy the irreducible constitutional minimum of
standing, a plaintiff must have suffered an injury-in-fact, which
is an invasion of a legally protected interest that is (a)
concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical.

Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992) (citations omitted).

Additionally, there

must be a causal connection between the injury and the conduct
complained of; that is, the injury has to be fairly traceable to
the challenged action of the defendant, and not the result of the
independent action of some third party not before the court.
(citations omitted).

Id.

It must also be “likely,” as opposed to

merely “speculative,” that the injury will be redressed by a
favorable decision.

Id. at 561. (citations omitted).

Plaintiffs clearly have standing to bring claims for the
refrigerator models they purchased.

Whether plaintiffs have

standing to represent a class action for other Electrolux model
13

numbers is an issue that is not yet ripe.

As the Supreme Court

has instructed, class certification issues are “logically
antecedent to the existence of Article III issues,” and it is
appropriate to reach the class action issues first, since the
standing issues would not exist but for the class action
certification.

Achem Prods. v. Windsor, 521 U.S. 591, 612-13

(1997); see also Clark v. Prudential Ins. Co. of America, --- F.
Supp. 2d ---, 2013 WL 444673, *2 (D.N.J. Feb. 5, 2013).
Consequently, Electrolux may renew its argument regarding
plaintiffs’ lack of standing if or when plaintiffs move for class
certification.7
3.

Breach of Express Warranty Claims

Electrolux has moved to dismiss plaintiffs’ express warranty
claims because the claims in the complaint do not adequately
plead that Electrolux breached the express warranty.

Plaintiffs

contest Electrolux’s interpretation of their breach of express
warranty claims.
The express warranty8 provides, in relevant part,

7

Plaintiffs’ complaint lists several refrigerator model
numbers that they believe contain the same ice maker. At least
some discovery will be required prior to a motion for class
certification in order to determine the proper scope of the
proposed class and whether these plaintiffs have standing to
pursue claims on behalf of others.
8

Plaintiffs did not attached the express warranty to their
complaint, but they quote from portions of it. Electrolux has
attached the entire express warranty to its motion to dismiss.
14

Your appliance is covered by a one year limited
warranty. For one year from your original date of
purchase, Electrolux will pay all costs for repairing
or replacing any parts of this appliance that prove to
be defective in materials or workmanship when such
appliance is installed, used, and maintained in
accordance with the provided instructions. . . .
CUSTOMER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS LIMITED
WARRANTY SHALL BE PRODUCT REPAIR OR REPLACEMENT AS
PROVIDED HEREIN. CLAIMS BASED ON IMPLIED WARRANTIES,
INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, ARE LIMITED TO ONE YEAR OR THE
SHORTEST PERIOD ALLOWED BY LAW, BUT NOT LESS THAN ONE
YEAR. ELECTROLUX SHALL NOT BE LIABLE FOR CONSEQUENTIAL
OR INCIDENTAL DAMAGES SUCH AS PROPERTY DAMAGE AND
INCIDENTAL EXPENSES RESULTING FROM ANY BREACH OF THIS
WRITTEN LIMITED WARRANTY OR ANY IMPLIED WARRANTY.
Plaintiffs claim that even though Electrolux attempted to
repair their refrigerators during their first year of ownership,
the repairs either did not correct the problem or were only
temporary fixes.

Plaintiffs further contend that Electrolux

knowingly sold defective refrigerators, and only provided
temporary repairs in order to get past the one-year warranty
period.

Based on these claims, plaintiffs allege that Electrolux

breached its express warranty by not repairing or replacing the
refrigerators during that one-year period as it warranted.
Electrolux argues that its express warranty does not provide
a guarantee that plaintiffs were purchasing a product free from
defects.

Relatedly, Electrolux further argues that any defects

that manifested for the first time after the one-year express

The Court may consider it. See Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
15

warranty period cannot constitute a breach of the express
warranty.

Electrolux also contends that the repairs that fixed

the problems until at least the expiration of the one-year period
satisfy the terms of the express warranty.
It is true that an express warranty with a limited time
period does not mean that a seller is promising a defect-free
product.

See Herbstman v. Eastman Kodak Co., 342 A.2d 181, 187

(N.J. 1975) (finding that Kodak’s warranty obligated Kodak to
repair the camera at no charge within one year after purchase-Kodak’s express warranty was not that the camera would be free of
mechanical defects, but rather, the language used contemplated
that such defects might occur and, if so, Kodak would repair
them).

It is also true that, generally, latent defects

discovered after the term of an express warranty cannot serve a
basis for a claim for the breach of an express warranty.

See,

e.g., Dewey v. Volkswagen AG, 558 F. Supp. 2d 505, 519 (D.N.J.
2008) (citing Duquesne Light Co. v. Westinghouse Elec. Corp., 66
F.3d 604, 616 (3d Cir. 1995) and other cases).9

Thus, to the

9

Duquesne relied upon Abraham v. Volkswagen of America,
Inc., 795 F.2d 238, 250 (2d Cir. 1986), which held that a
plaintiff cannot maintain a breach of warranty claim for a defect
that was not discovered prior to the expiration of his warranty
by alleging that the manufacturer knew of that defect before the
warranty expired. Abraham further explained,
[V]irtually all product failures discovered in
automobiles after expiration of the warranty can be
attributed to a “latent defect” that existed at the
time of sale or during the term of the warranty. All
16

extent that plaintiffs’ claims can be read to assert those
allegations, they fail.
Plaintiffs, however, may proceed on their breach of express
warranty claims that allege that Electrolux did not “repair or
replace” their refrigerators during the one-year express warranty
period.

Whether Electrolux met the terms of the express warranty

by providing “repairs,” but not actually fixing the alleged
defects, cannot be determined at this motion to dismiss stage,
where plaintiffs’ claims must be accepted as true.10
Morever, plaintiffs’ claims, taken as true, that Electrolux
knew that the ice makers in the refrigerators were defective when

parts will wear out sooner or later and thus have a
limited effective life. Manufacturers always have
knowledge regarding the effective life of particular
parts and the likelihood of their failing within a
particular period of time. Such knowledge is easily
demonstrated by the fact that manufacturers must
predict rates of failure of particular parts in order
to price warranties and thus can always be said to
“know” that many parts will fail after the warranty
period has expired. A rule that would make failure of
a part actionable based on such “knowledge” would
render meaningless time/mileage limitations in warranty
coverage.
Abraham, 795 F.2d at 250. This holding is not dispositive to
plaintiffs’ claims here because the alleged defects manifested
during the express warranty period.
10

Electrolux argues that because Kuzian’s ice maker was
repaired and then at some point past the one-year mark stopped
working again, that allegation demonstrates that Electrolux
honored its warranty by making his ice maker operational. The
Court does not construe Kuzian’s claim so narrowly at this motion
to dismiss stage.
17

they advertised the ice makers’ capabilities cannot be dismissed
at this motion to dismiss stage.

Plaintiffs are not contending

that a known or unknown latent defect manifested after the
express warranty period,11 but rather that Electrolux’s express
warranty warranted, for one year, its affirmation and description
of the ice makers’ performance.

When the ice makers began to

fail during that first year, plaintiffs contend that Electrolux
breached its warranty that the ice makers would perform as
promised.

These claims may proceed.

See, e.g., Ford Motor

Credit Company, LLC v. Mendola, 48 A.3d 366, 375 (N.J. Super. Ct.
App. Div. 2012) (“To prove a breach of an express warranty,
however, Mendola is not required to prove a defect in the car.

A

prima facie case for breach of express warranty only requires
evidence of non-performance by the warrantor.”); N.J.S.A.
12A:2-313(1)(a),(b) (providing that an express warranty is
created by “Any affirmation of fact or promise made by the seller

11

Plaintiffs do not plead a specific count alleging that the
warranty was unconscionable. If they did assert such a claim, it
would have to be pled in the alternative to their breach of
warranty count, as a party cannot be held to have breached a
warranty that has been deemed invalid due to unconscionability.
It appears from plaintiffs’ opposition brief, however, that for
purchasers of Electrolux refrigerators who experienced ice maker
defects beyond the one-year warranty period, plaintiffs wish to
assert a claim for unconscionable warranty-- i.e., Electrolux
knew that the one year warranty was grossly inadequate to resolve
the ice maker defects. See Gotthelf v. Toyota Motor Sales,
U.S.A., Inc., 2012 WL 1574301, 19 (D.N.J. May 3, 2012)
(discussing the viability of a unconscionable warranty claim).
The Court makes no finding on the merits of a count not
specifically pleaded in the complaint.
18

to the buyer which relates to the goods and becomes part of the
basis of the bargain creates an express warranty that the goods
shall conform to the affirmation or promise,” or “Any description
of the goods which is made part of the basis of the bargain
creates an express warranty that the goods shall conform to the
description”).
3.

Breach of implied warranty claim

Plaintiffs allege that Electrolux has violated the implied
warranty of merchantability and implied warranty of fitness for a
particular purpose by selling them defective refrigerators.

New

Jersey law provides that merchantable goods must be fit for the
ordinary purposes for which such goods are used.
12A:2–314.

N.J.S.A.

New Jersey law also provides, “Where the seller at

the time of contracting has reason to know any particular purpose
for which the goods are required and that the buyer is relying on
the seller's skill or judgment to select or furnish suitable
goods, there is . . . an implied warranty that the goods shall be
fit for such purpose.”

N.J.S.A. 12A:2–314.

These two warranties “protect buyers from loss where the
goods purchased are below commercial standards or are unfit for
the buyer’s purpose.”

Crozier v. Johnson & Johnson Consumer

Companies, Inc., --- F. Supp. 2d ---, 2012 WL 4507381, 14 (D.N.J.
Sept. 28, 2012) (quoting Altronics of Bethlehem, Inc. v. Repco,

19

Inc., 957 F.2d 1102, 1105 (3d Cir. 1992)).

In order to establish

a breach of either warranty, plaintiffs “must show that the
equipment they purchased from defendant was defective.”

Id.

However, “establishing a breach of the implied warranties of
merchantability and fitness for a particular purpose requires a
showing regarding the product’s functionality, not the
advertisements that allegedly induced a customer to purchase it.”
Id.
Plaintiffs allege that Electrolux sold them refrigerators
that did not produce ice properly, and they purchased those
particular refrigerators for their purported ice making
capabilities.

Plaintiffs further allege that not only did they

not receive the refrigerators they purchased for the specific
purpose of ice making,12 their ordinary use of the refrigerator
to properly store perishable food was precluded by the
consequences of the defective ice makers.

These allegations

adequately state claims for breach of the implied warranties of
merchantability and fitness for a particular purchase, and those
claims may proceed.

12

Electrolux argues that there is no special purpose of a
refrigerator with an ice maker, as ice makers are standard
features of almost all refrigerators. Plaintiffs contend that
they bought these particular refrigerators because of their
special ice making capabilities. Accepting plaintiffs’
contentions as true, this is sufficient to survive Electrolux’s
motion to dismiss.
20

4.

Fraud and negligent misrepresentation claims

Plaintiffs claim that Electrolux’s alleged conduct - that it
deceptively and fraudulently sold refrigerators with defective
ice makers - has violated the New Jersey Consumer Fraud Act and
has constituted fraudulent concealment and negligent
misrepresentation.

Electrolux argues that these fraud-based

claims seek to expand the express limited warranty to improperly
require Electrolux to guarantee that the refrigerators will work
forever, and, thus, the fraud claims must be dismissed.
a.

New Jersey’s Consumer Fraud Act

A recent New Jersey case summarizes the law of the Consumer
Fraud Act:
The Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to
-181, provides a private cause of action to consumers
who are victimized by fraudulent practices in the
marketplace. The CFA is intended to be applied broadly
in order to accomplish its remedial purpose, and
therefore is to be construed liberally in the
consumer's favor.
The elements of a CFA claim are: (1) an unlawful
practice, (2) an ascertainable loss, and (3) a causal
relationship between the unlawful conduct and the
ascertainable loss. A consumer who can prove these
elements is entitled to legal and/or equitable relief,
treble damages, and reasonable attorneys’ fees.
The CFA defines an unlawful practice as:
any unconscionable commercial practice,
deception, fraud, false pretense, false
promise, misrepresentation, or the knowing,
concealment, suppression, or omission of any
material fact with intent that others rely
upon such concealment, suppression[,] or
omission, in connection with the sale or
21

advertisement of any merchandise or real
estate, or with the subsequent performance of
such person as aforesaid, whether or not any
person has in fact been misled, deceived[,]
or damaged thereby.
N.J.S.A. 56:8–2.
Such practices can be divided into three general
categories: affirmative acts, knowing omissions, and
regulatory violations. A person who makes an
affirmative misrepresentation is liable even in the
absence of knowledge of the falsity of the
misrepresentation, negligence, or the intent to
deceive. Although intent is not an essential element
for violations based on affirmative acts, where a
plaintiff seeks to recover based upon a defendant's
omission, the plaintiff must show that the defendant
acted with knowledge, and intent is an essential
element of the fraud. The capacity to mislead is the
prime ingredient of all types of consumer fraud.
Regarding “unconscionable commercial practice,”
the Court has recognized that the Legislature must have
intended that substantial aggravating circumstances be
present in addition to a mere breach of contract or
breach of warranty, since any breach of warranty or
contract is unfair to the non-breaching party. The
Court also noted that proof of an unconscionable
commercial practice is not necessary to establish a
violation of the CFA. Rather, the [CFA] specifies the
conduct that will amount to an unlawful practice in the
disjunctive, and includes “deception, fraud, false
pretense, false promise, misrepresentation, or the
knowing, concealment, suppression, or omission of any
material fact with intent that others rely upon such
concealment, suppression[,] or omission,” N.J.S.A.
56:8–2. Proof of any one of those acts or omissions is
sufficient to establish unlawful conduct under the CFA.
Causation under the CFA requires demonstration
that the consumer suffered an ascertainable loss “as a
result of” the unlawful practice. The CFA does not
require a showing of “reliance” to prove causation.
Nor does the unlawful conduct need to be the sole cause
of the harm.
Pope v. Craftsman Builders, Inc., 2013 WL 105283, 9-10

(N.J.

Super. App. Div. Jan. 10, 2013) (citing Lee v. Carter–Reed Co.,
22

203 N.J. 496, 521 (2010) (Gonzalez v. Wilshire Credit Corp., 207
N.J. 557, 576 (2011))(other citations and quotations omitted).
Plaintiffs have adequately pleaded a CFA claim: (1)
Electrolux knowingly sold refrigerators that (a) would not live
up to its representations, and (b) would not be replaced and
could not be properly repaired within the warranty period, (2)
plaintiffs spent $2000-$3000 on a defective refrigerator, and (3)
there is a causal relationship between the Electrolux’s conduct
and plaintiffs’ loss.
These allegations also demonstrate the “substantial
aggravating circumstances” that permit their claims to proceed
under the CFA rather than for simply a breach of warranty action.
It does not appear from the Court’s reading of plaintiffs’
complaint that success on their CFA claims would, as Electrolux
argues, require Electrolux to warrant that its refrigerators will
last forever.

Plaintiffs’ CFA claims are much narrower.

Plaintiffs contend that no length of warranty - one day or one
hundred years - would protect consumers from being fraudulently
induced to buy a defective refrigerator that Electrolux knowingly
cannot repair, and refuses to replace.

At this motion to dismiss

stage, these allegations are sufficient to go forward.
b.

Fraudulent concealment

For the same reasons as plaintiffs’ CFA claims, plaintiffs’

23

common law fraud claims may proceed.

In New Jersey, a cause of

action for common law fraud has five elements:

(1) a material

misrepresentation of a presently existing or past fact;13 (2)
knowledge or belief by the defendant of its falsity; (3) an
intention that the other person rely on it; (4) reasonable
reliance thereon by the other person; and (5) resulting damages.
Gennari v. Weichert Co. Realtors, 691 A.2d 350, 367 (N.J. 1997).
Electrolux argues that plaintiffs have not met the
heightened pleading standards required for fraud claims.
Electrolux contends that plaintiffs’ recitation of complaints
posted by consumers on the Internet, and Electrolux’s responses
to those complaints, do not properly evidence Electrolux’s
knowledge of the alleged defects.

Electrolux also argues that

its advertising “puffery,” such as “ice at your fingertips,”
cannot qualify as material misrepresentations.
Even though it is true that elements of fraudulent
concealment must be pled under the heightened standards of Fed.
R. Civ. P. 9(b), Arcand v. Brother Intern. Corp., 673 F. Supp. 2d
282, 305 (D.N.J. 2009), plaintiffs have met that burden.
Plaintiffs contend that (1) Electrolux represented that, at a

13

The“[d]eliberate suppression of a material fact that should
be disclosed” is viewed as “equivalent to a material
misrepresentation (i.e., an affirmative misrepresentation),”
which will support a common law fraud action. New Jersey Econ.
Dev. Auth. v. Pavonia Restaurant, Inc., 725 A.2d 1133, 1139 (N.J.
Super. App. Div. 1998).
24

minimum, their refrigerators contained operational ice makers,
(2) Electrolux knew their ice makers would fail, (3) Electrolux
intended for consumers to rely upon their representations
regarding the capabilities of their ice makers, (4) plaintiffs
relied upon those representations, and (5) have been damaged as a
result.
Moreover, even though advertising “puffery” does not usually
amount to an actionable misrepresentation, see Rodio v. Smith,
587 A.2d 621 (N.J. 1991) (noting that “You're in good hands with
Allstate” is nothing more than puffery, and finding that in
contrast to assertions of fact, “puffery” is not deemed to be a
misrepresentation of fact actionable for fraud), plaintiffs claim
that not only did they not get “ice at their fingertips,” they
did not get any ice at all.

Electrolux may ultimately disprove

plaintiffs’ claims, but these allegations are adequate to proceed
at this stage of the case.
c.

Negligent misrepresentation

Based on the same allegations, plaintiffs also assert claims
for negligent misrepresentation.

In New Jersey, negligent

misrepresentation is (1) an incorrect statement, (2) negligently
made and (3) justifiably relied on, and (4) may be the basis for
recovery of damages for economic loss sustained as a consequence
of that reliance.
(N.J. 2000).

Kaufman v. i-Stat Corp., 754 A.2d 1188, 1196

“Because negligent misrepresentation does not
25

require scienter as an element, it is easier to prove than
fraud.”

Id.

Plaintiffs’ negligent misrepresentation claim may

proceed for the same reasons as their fraud claims.
C.

ANALYSIS OF NEW YORK PLAINTIFF’S COMPLAINT

Plaintiff Irma Lederer asserts claims essentially identical
in substance to the New Jersey plaintiffs, but she brings her
claims pursuant to New York law.

Electrolux has moved to dismiss

Lederer’s claims based on, for the most part, the same arguments
as its motion to dismiss the New Jersey plaintiffs’ claims.

Each

of Lederer’s claims will be addressed in turn.
1.

N.Y. General Business Law (GBL) § 349

Similar to the New Jersey plaintiffs’ CFA claims, Lederer
has brought a consumer protection claim pursuant to N.Y. General
Business Law (GBL) § 349.

Electrolux argues that Lederer has not

stated a claim for a GBL § 349 violation, and she cannot seek
injunctive relief under this statute.

Both arguments are

unavailing.
To state a cause of action under GBL § 349, a plaintiff
“must, at the threshold, charge conduct that is consumer oriented
- the conduct need not be repetitive or recurring but defendant’s
acts or practices must have a broad impact on consumers at
large.”

Gomez-Jimenez v. New York Law School, 956 N.Y.S.2d 54,

58 (N.Y.A.D. 1 Dept. 2012).

“If a plaintiff meets this

26

threshold, its prima facie case may then be established by
proving that defendant is engaging in an act or practice that is
deceptive in a material way and that plaintiff has been injured
by it.”

Id. (citation omitted).

Whether a representation or

omission is a “deceptive act or practice” depends on the
likelihood that it will “mislead a reasonable consumer acting
reasonably under the circumstances.”

Id.

“Omission-based claims

under Section 349 are appropriate where the business alone
possesses material information that is relevant to the consumer
and fails to provide this information.”

Id. (citations and

quotations omitted).
As detailed above with regard to the New Jersey plaintiffs’
fraud and CFA claims, Lederer’s essentially identical allegations
regarding her refrigerator defects properly allege a GBL § 349
violation.

Additionally, in response to Electrolux’s argument

that Lederer cannot pursue injunctive relief under GBL § 349,
that statutes allows “any person who has been injured by reason
of any violation of this section,” to “bring an action in his own
name to enjoin such unlawful act or practice, an action to
recover his actual damages or fifty dollars, whichever is
greater, or both such actions.”

GBL § 349(h).

Thus, Lederer’s

GBL § 349 claim may proceed.
2.

Breach of Express Warranty

Lederer’s alleged malfunction of the ice maker in her
27

refrigerator occurred within the one-year limit of the Electrolux
express warranty, and Lederer contends that Electrolux breached
that warranty by not repairing or replacing her refrigerator.
Electrolux does not seek dismissal of that claim, but rather it
seeks the dismissal of Lederer’s contention within her breach of
express warranty count that Electrolux “warranted that all of the
refrigerators that had ice makers were free from defects.”
In opposition, Lederer argues that because the advertising
materials represented that “you’ll always have . . . ice,”
Electrolux created an express warranty as to future performance.
As such, Lederer argues that any class member’s claim for the
breach of this express warranty of future performance should be
deemed not to accrue until the defect is discovered, even if it
falls outside the one-year window.
With regard to Lederer’s argument about the creation of a
warranty as to future performance and the accrual of a breach of
that warranty, the Court will make no finding at this time.

Any

ruling on this argument would be inappropriately advisory, as it
would only apply to an undefined, unknown, uncertified class.
With regard to Lederer’s claim that Electrolux created a
“free from defects” warranty, that claims fails, as such a
promise conflicts with the express language of the limited
warranty, which provides, “For one year from your original date
of purchase, Electrolux will pay all costs for repairing or
28

replacing any parts of this appliance that prove to be defective
in materials or workmanship when such appliance is installed,
used, and maintained in accordance with the provided
instructions. . . .”

See, e.g., Oscar v. BMW of North America,

LLC, 274 F.R.D. 498, 511 (S.D.N.Y. 2011) (“To prevail on a claim
of breach of express warranty, a plaintiff must show an
affirmation of fact or promise by the seller, the natural
tendency of which was to induce the buyer to purchase and that
the warranty was relied upon.”); cf. Hollman v. Taser Intern.
Inc., --- F. Supp. 2d ---, 2013 WL 864538, 20 (E.D.N.Y. March 8,
2013) (in a case involving a warranty that provided, “TASER
warrants that its products are free from defects in workmanship
and materials for a period of one year from the date of
purchase,” dismissing breach of express warranty claim because
plaintiff did not provide evidence that the product at issue
contained any defects in workmanship and materials, and even
assuming that plaintiff introduced evidence of defects in
workmanship and materials, plaintiff's claim failed because she
did not introduce any evidence that the purchaser relied on this
statement when purchasing the TASER product).
Consequently, Lederer may proceed on her breach of express
warranty claim, but not for a “free from defects” warranty claim,
and not for a express warranty of future performance claim.

29

3.

Breach of implied warranty

Electrolux has moved to dismiss Lederer’s breach of implied
warranty claims because of her lack of privity with Electrolux.
Under New York law,
privity is generally required to recover economic
losses pursuant to a cause of action for breach of
implied warranty. More specifically, privity of
contract with the manufacturer is required to recover
for economic loss due to property damage allegedly
caused by a breach of implied warranty. Only when a
plaintiff alleges personal injury resulting from the
breach of implied warranty is the privity requirement
lifted.
Prue v. Fiber Composites, LLC, 2012 WL 1314114, 10 (E.D.N.Y.
April 17, 2012) (quoting Westport Marina, Inc. v. Boulay, 783 F.
Supp. 2d 344, 356 (E.D.N.Y. 2010); Arthur Jaffee Assocs. v.
Blisco Auto Serv., Inc., 89 A.D.2d 785, 453 N.Y.S.2d 501, 502
(App. Div.1982), aff'd, 58 N.Y.2d 993, 461 N.Y.S.2d 1007, 448
N.E.2d 792 (N.Y. 1983)) (other quotations and citations omitted);
see also Archstone v. Tocci Bldg. Corp. of New Jersey, Inc., 956
N.Y.S.2d 496, 499 (N.Y.A.D. 2 Dept., 2012) (explaining that the
lower court properly granted summary judgment dismissing the
breach of implied warranty causes of action, as the plaintiffs
were neither in privity with the manufacturer, nor were they
third-party beneficiaries of the manufacturer’s contract with the
distributor).

Explained another way, “Strict liability in tort

and implied warranty in the absence of privity are merely

30

different ways of describing the very same cause of action.”
Donald v. Shinn Fu Co. of Am., No. 99–CV–6397, 2002 WL 32068351
at *4 (E.D.N.Y. Sept. 4, 2002) (quoting Mendel v. Pittsburgh
Plate Glass Co., 25 N.Y.2d 340, 345, 305 N.Y.S.2d 490, 253 N.E.2d
207 (1969)).
Here, Lederer claims in her complaint that she purchased her
refrigerator from a retail store, and not directly from
Electrolux.

In response to Electrolux’s motion to dismiss,

Lederer argues it is premature to dismiss her breach of implied
warranty claim because it does not show that she does not have
privity.14
It is plaintiff’s burden to affirmatively plead a viable
claim and for a breach of implied warranty claim under New York
law that requires an allegation of privity or that she was an
intended beneficiary of the manufacturer’s contract with another
entity.

She has failed to do so here.

Thus, her claim for

breach of implied warranty must be dismissed.

14

Lederer sites Randy Knitwear, Inc. v. American Cyanamid
Co., 11 N.Y.2d 5, 226 N.Y.S.2d 363, 181 N.E.2d 399 (1962), to
allow a sub-purchaser to be afforded warranty protection if she
can prove reasonable reliance on representations by the
manufacturer. That case, decided two years before the
implementation the UCC, afforded the sub-purchaser express
warranty protection, not implied warranty protection. See
Westport Marina, Inc. v. Boulay, 783 F. Supp. 2d 344, 355 n.6
(E.D.N.Y. 2010). The Court does not find that case persuasive.
31

4.

Fraud and negligent misrepresentation claims

For the same reasons expressed with regard to the New Jersey
plaintiffs’ fraud and negligent misrepresentation claims,
Lederer’s claims for fraud and negligent misrepresentation may
proceed.

Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc.,

651 F. Supp. 2d 155, 171 (S.D.N.Y. 2009) (“Under New York law, to
state a claim for fraud a plaintiff must demonstrate: (1) a
misrepresentation or omission of material fact; (2) which the
defendant knew to be false; (3) which the defendant made with the
intention of inducing reliance; (4) upon which the plaintiff
reasonably relied; and (5) which caused injury to the
plaintiff.”); Abu Dhabi Commercial Bank v. Morgan Stanley & Co.
Inc., 2013 WL 837536, 3 (S.D.N.Y. March 6, 2013) (“Under New York
law “a claim for negligent misrepresentation requires the
plaintiff to demonstrate (1) the existence of a special or
privity-like relationship imposing a duty on the defendant to
impart correct information to the plaintiff; (2) that the
information was incorrect; and (3) reasonable reliance on the
information.”).
5.

Unjust enrichment claim

Lederer has asserted a claim for unjust enrichment, and
Electrolux has moved to dismiss it, arguing that it cannot be
maintained where there is a valid, enforceable express warranty.
Lederer argues that she should be permitted to maintain both a
32

count for breach of express warranty and a count for unjust
enrichment until it is determined whether the express warranty is
valid.
Under New York law, a claim for unjust enrichment requires a
showing that the defendant was enriched at the plaintiff’s
expense, and it would be against equity and good conscience to
permit the defendant “to retain what is ought to be recovered.”
Bristol Village, Inc. v. Louisiana-Pacific Corp., --- F. Supp. 2d
---, 2013 WL 55698, 6-7
omitted).

(W.D.N.Y. Jan. 3, 2013) (citations

Recovery under this quasi-contractual theory is

precluded by the existence of a valid and enforceable written
contract governing the particular subject matter.
omitted).

Id. (citations

An unjust enrichment claim is unavailable where it

simply duplicates, or replaces, a conventional contract or tort
claim, but unjust enrichment may be pleaded in the alternative
where there is a bona fide dispute whether a relevant contract
exists or covers the dispute at issue.

Id. (citations omitted).

One of Lederer’s claims is that the express warranty was
fraudulent from its inception due to the known defect of the ice
maker.

Because there is dispute as to the validity of the

express warranty and there are claims of fraud, Lederer is
permitted to maintain an alternate basis for recovery at this
motion to dismiss stage.

See Ox v. Union Cent. Life Ins. Co.,

1995 WL 634991, 5 (S.D.N.Y. 1995) (citing Chrysler Capital Corp.
33

v. Century Power Corp., 778 F. Supp. 1261, 1272 (S.D.N.Y. 1991))
(“[A]s long as a factual issue remains as to the fraud claim,
recovery under a theory of unjust enrichment may be proper, even
in the presence of an alternative breach of contract claim.”).
6.

Breach of good faith and fair dealing

Lederer has also advanced a claim for breach of good faith
and fair dealing, claiming that Electrolux deprived her of the
benefits of her express warranty contract.

Electrolux has moved

to dismiss this claim, arguing that such a claim cannot serve as
an independent basis for recovery.

Electrolux’s argument is

unavailing.
Under New York law, “a covenant of good faith and fair
dealing is implicit in all contracts during the course of
contract performance.”

Tractebel Energy Mkag., Inc. v. AEP Power

Mktg., Inc., 487 F.3d 89, 98 (2d Cir. 2007) (citing Dalton v.
Educ. Testing Serv., 87 N.Y.2d 384, 389 (N.Y.1995)).

Although it

is true that a plaintiff’s breach of good faith and fair dealing
claim cannot simply re-plead the same allegations that serve the
basis of the plaintiff’s breach of contract claim or bad faith
claim, Cerberus Intl., Ltd. v. BancTec, Inc., 16 AD3d 126, 127
(1st Dept. 2005) (explaining that a claim for a breach of a
covenant of good faith and fair dealing cannot be duplicative of
the party’s breach of contract claim), a plaintiff can assert
such a claim if done so properly.
34

“[T]he covenant of good faith

and fair dealing is breached when a party to a contract acts in a
manner that, although not expressly forbidden by any contractual
provision, would deprive the other party of the right to receive
the benefits under their agreement.”

Jaffe v Paramount

Communications, 222 A.D.2d 17, 644 N.Y.S.2d 43 (N.Y.A.D. 1996).
In order to state a cause of action for breach of the
implied covenant of good faith and fair dealing, “the plaintiff
must allege facts which tend to show that the defendant sought to
prevent performance of the contract or to withhold its benefits
from the plaintiff.”

Dweck Law Firm, L.L.P. v. Mann, 340 F.

Supp. 2d 353, 358 (S.D.N.Y. 2004) (quoting Aventine Inv. Mgmt.,
Inc. v. Canadian Imperial Bank of Commerce, 697 N.Y.S.2d 128, 130
(2d Dep't 1999)).

Lederer claims that Electrolux’s inability or

refusal to properly repair or replace her refrigerator under the
express warranty was not done in good faith and fair dealing.
This claim is sufficient to proceed at this stage.
IV.

PLAINTIFFS’ MOTION TO APPOINT LEAD COUNSEL
The two law firms that represent the four plaintiffs have

moved for their appointment as interim class counsel pursuant to
Federal Civil Procedure Rule 23(g)(3).

Rule 23(g)(3) provides

that the “court may designate interim class counsel to act on
behalf of the putative class before determining whether to
certify the action as a class action.”
Litigation provides further guidance:
35

The Manual for Complex

Whether to appoint interim class counsel during the
period before class certification is decided.
If the lawyer who filed the suit is likely to be the
only lawyer seeking appointment as class counsel,
appointing interim class counsel may be unnecessary.
If, however, there are a number of overlapping,
duplicative, or competing suits pending in other
courts, and some or all of those suits may be
consolidated, a number of lawyers may compete for class
counsel appointment. In such cases, designation of
interim counsel clarifies responsibility for protecting
the interests of the class during precertification
activities, such as making and responding to motions,
conducting any necessary discovery, moving for class
certification, and negotiating settlement. In cases
involving overlapping, duplicative, or competing suits
in other federal courts or in state courts, the lawyers
may stipulate to the appointment of a lead interim
counsel and a steering committee to act for the
proposed class. Such a stipulation leaves the court
with the tasks of determining that the chosen counsel
is adequate to serve as interim class counsel and
making a formal order of appointment. Absent a
stipulation, the court may need to select interim class
counsel from lawyers competing for the role and
formally designate the lawyer selected.
Manual for Complex Litigation, Fourth, § 21.11, at 246 (Federal
Judicial Center 2004).
Because no other attorneys have made their appearance on
behalf of other plaintiffs, and because the two consolidated
cases are being prosecuted by the same counsel, the Court does
not find it necessary to appoint interim class counsel at this
time.

Should the concerns described by the Manual for Complex

Litigation arise, counsel may renew their motion.15
15

If counsel were to renew their motion, it would be analyzed
under the same standard as the appointment of class counsel. See
Fed. R. Civ. P. 23(g)(2)(B) (“If more than one adequate applicant
36

V.

CONCLUSION
To summarize, all of the New Jersey plaintiffs’ claims may

proceed, and all of the New York plaintiff’s claims may proceed,
except for her “free from defects” warranty claim, her express
warranty of future performance claim, and her breach of implied
warranty claim.

The Court recognizes that plaintiffs have

pleaded alternative bases for recovery, but having adequately
asserted their allegations under those alternative theories, they
are permitted to proceed to discovery on those claims.

See Fed.

R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of
a claim or defense alternatively or hypothetically, either in a
single count or defense or in separate ones.

If a party makes

alternative statements, the pleading is sufficient if any one of
them is sufficient.”); Caputo v. Nice-Pak Products, Inc., 693
A.2d 494, 497 (N.J. Super. App. Div. 1997) (“Under proper
instructions from the judge, the jury may decide which of the two
was proved, and plaintiff will be able to recover under one of
the theories.

It is only recovery under inconsistent theories

that is not permitted.”).

Accordingly, Electrolux’s motions to

seeks appointment as class counsel, the court must appoint the
applicant best able to represent the interests of the class.”);
Fed. R. Civ. P. 23(g)(1)(A) (“In appointing counsel, the court
must consider: (i) the work counsel has done in identifying or
investigating potential claims in the action; (ii) counsel's
experience in handling class actions, other complex litigation,
and claims of the type asserted in the action; (iii) counsel's
knowledge of the applicable law; and (iv) the resources counsel
will commit to representing the class.”).
37

dismiss shall be granted in part and denied in part.
Further, with regard to plaintiffs’ motion to appoint
interim counsel, it shall be denied without prejudice at this
time.

An Order consistent with this Opinion will be entered.

Date: March 27, 2013
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

38