MLADENOV et al v. WEGMANS FOOD MARKETS, INC.

Filing 25

OPINION filed. Signed by Judge Joseph E. Irenas on 8/26/2015. (drw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARTCHELA POPOVA MLADENOV, MLADEN
MLADENOV, CHAN M. MAO, on behalf
of themselves and those similar
situated,

Plaintiffs,

vs.

WEGMANS FOOD MARKETS, INC.; ABCCORPS 1-10 (fictitious entities)

Defendants.

MARTCHELA POPOVA MLADENOV, MLADEN
MLADENOV, CHAN M. MAO, on behalf
of themselves and those similar
situated,

Plaintiffs,

vs.

WHOLE FOODS MARKET GROUP, INC.;
ABC-CORPS 1-10 (fictitious
entities)

Defendants.

CHAN M. MAO, on behalf of herself
and those similar situated,

Plaintiff,

vs.

ACME MARKETS, INC.; ABC-CORPS 1-10
(fictitious entities)

Defendants.

1

Honorable Joseph E. Irenas

CIVIL ACTION NO. 15-00373-JEI-AMD

CIVIL ACTION NO. 15-00382-JEI-AMD

CIVIL ACTION NO. 15-00618-JEI-AMD

OPINION

APPEARANCES:
ANGELOVA LAW FIRM, LLC
BY: Aneliya M. Angelova, Esq.
Andrew H. Yang, Esq.
10 000 Lincoln Drive East
Suite 201
Marlton, New Jersey 08053
Counsel for Plaintiffs

GREENBERG TRAURIG, LLP
BY: David E. Sellinger, Esq.
200 Park Avenue
P.O. Box 677
Florham Park, New Jersey 07932
Counsel for Defendant Whole Foods Market Group, Inc.

PEPPER HAMILTON LLP
BY: Matthew V. DelDuca, Esq.
Angelo A. Stio III, Esq.
301 Carnegie Center
Suite 400
Princeton, New Jersey 08543-5276
Counsel for Defendant Wegmans Food Markets, Inc.

BUCHANON INGERSOLL & ROONEY PC
BY: Christopher J. Dalton, Esq.
Lauren A. Woods, Esq.
550 Broad Street, Suite 810
Newark, New Jersey 07102
Counsel for Defendant ACME Markets, Inc.

IRENAS, Senior United States District Judge:
In these three diversity class actions, Plaintiffs
Martchela Popova Mladenov, Mladen Mladenov and Chan Mao allege
on behalf of themselves, and all of those similarly situated,
that Whole Foods Market Group, Inc. (“Whole Foods”), Wegmans
Food Markets, Inc. (“Wegmans”), and ACME Markets, Inc. (“ACME”)
misrepresented various bread and bakery products as being baked
fresh in store, when they were actually frozen, processed, or

2

baked in another location or by another entity, in violation of
The New Jersey Consumer Fraud Act (“CFA”), The New Jersey TruthIn-Consumer Contract Warranty and Notice Act (“TCCWNA”) and New
Jersey Law regarding Express Warranties.1
Defendants presently move to dismiss Plaintiffs’ First
Amended Complaints pursuant to Fed. R. Civ. P. 12(b)(6) for
failure to state a claim upon which relief may be granted.

For

the reasons stated herein, Defendants’ motions will be GRANTED.

I.

BACKGROUND

Plaintiffs filed their initial Complaints in the Superior
Court of New Jersey, Camden County.

Promptly thereafter,

Defendants each removed to this Court on diversity grounds and
Plaintiffs amended their initial Complaints.

Plaintiffs’

Amended Complaints allege the following:
Plaintiffs Martchela Mladenov, Mladen Mladenov and Chan Mao
claim to be health conscious New Jersey residents who have
purchased Defendants’ bread and bakery products in New Jersey
stores.2 (Whole Foods Amend. Compl. ¶¶ 4-6, 9; Wegmans Amend.
Compl. ¶¶ 4-6, 9; ACME Amend. Compl. ¶¶ 4-5, 9).

Plaintiffs

1

Since the same Plaintiffs, represented by the same counsel,
identical claims against Defendants on similar sets of facts,
addresses the motions to dismiss together.
2 Plaintiffs claim to have purchased such products from Whole
Wegmans on a “regular basis over the past six years.” (Whole
Compl. ¶ 9; Wegmans Amend. Compl. ¶ 9)

3

bring virtually
the Court
Foods and
Foods Amend.

bring these class actions against Defendants on behalf of
themselves and classes defined as:
All individuals and entities within the State of New
Jersey who purchased bread and/or bakery products
advertised and sold as “made in house” and/or “freshly
baked” and/or “freshly boiled” and/or “fresh” in a
Whole Foods Market store located in New Jersey on or
after December 14, 2008.
(Whole Foods Amend. Compl. ¶ 30.)
All individuals and entities within the State of New
Jersey who purchased bread and/or bakery products
advertised and sold as “store baked” and/or “fresh
baked” in a Wegmans store located in New Jersey on or
after December 14, 2008.
(Wegmans Amend. Compl. ¶ 25)
All individuals and entities within the State of New
Jersey who purchased bread and/or bakery products
advertised and sold as “fresh bread” and/or “baked
fresh” and/or “baked in our store daily” and/or “from
our bakery made for you” in an ACME store located in New
Jersey on or after December 14, 2008.
(ACME Amend. Compl. ¶ 22)
Each class excludes Defendants, their employees,
subsidiaries and affiliates, and Defendants’ executives, board
members, and legal counsel.

Plaintiffs also bring these actions

on behalf of subclasses defined as those who purchased the same
bread and bakery products as the main class but used a credit or
debit card to do so.3

(Whole Foods Amend. Compl. ¶ 31; Wegmans

Amend. Compl. ¶ 26; ACME Amend. Compl. ¶ 23)

3

The subclass in the Whole Foods complaint also includes those who purchased
the same products through Whole Foods’s “shop online” program since December
14, 2014. (Whole Foods Amen. Compl. ¶ 31)

4

The Amended Complaints allege that Defendants display signs
and advertisements suggesting that certain bread and bakery
products are made in house from scratch.

(Whole Foods Amend.

Compl. ¶¶ 18-19; Wegmans Amend. Compl. ¶¶ 13-14 ; ACME Amend.
Compl. ¶ 11)

Specifically, Defendant Whole Foods posts signs

such as “‘MADE IN HOUSE BREAD,’ MADE IN HOUSE BAGELS AND ROLLS,’
‘FRESHLY BOILED & PLAIN BAGEL’, ‘MADE IN HOUSE MULTI GRAIN
EVERYTHING BAGEL,’ and ‘MADE IN HOUSE SNOW CAP CAKES.’”4 (Whole
Foods Amend. Compl. ¶ 18).

Defendant ACME posts signs such as

“‘BAKED FRESH IN OUR OVEN, FRESH BREAD, BAKED IN OUR STORE
DAILY’, ‘NEW! BAKED IN-STORE DONUTS’ AND ‘TASTY SELECTION FROM
OUR BAKERY MADE FOR YOU.’” (ACME Amend. Compl. ¶ 11).

Wegmans

posts signs such as “STORE BAKED ROLLS.” (Wegmans Amend. Compl.
¶ 13).

Defendants allegedly charge a premium for such products.

(Whole Foods Amend. Compl. ¶ 24, Wegmans Amend. Compl. ¶ 19;
ACME Amend. Compl. ¶ 16)
Plaintiffs claim, however, that in reality Defendants’
bread and bakery products are not made from scratch, but “1)
made, parbaked and/or frozen; and/or 2) delivered frozen,
parbaked or premade, and re-baked or re-heated for sale; and/or
3) not made in store.

(Whole Foods Amend. Compl. ¶ 21; Wegmans

4

Plaintiffs also allege that Whole Foods’s “product packaging contains a
statement, ‘WE BAKE DAILY, USING ONLY THE FRESHEST INGREDIENTS, INCLUDING
CAGE-FREE EGGS, NATURAL BUTTERS AND THE BEST QUALITY UNBLEACHED, UNBROMATED
FLOUR AVAILABLE.’” (Whole Foods Amend. Compl. ¶ 19) Plaintiffs do not
specify on which specific products’ packaging this statement appears.

5

Amend. Compl. ¶ 16; ACME Amend. Compl. ¶ 13).

Plaintiffs allege

further that they would not have purchased Defendants’ products
absent Defendants’ misleading advertisements. (Whole Foods
Amend. Compl. ¶¶ 24-25; Wegmans Amend. Compl. ¶¶ 20-21; ACME
Amend. Compl. ¶¶ 17-18)
The Amended Complaints do not identify any particular bread
or bakery products that Plaintiffs have purchased, the prices
Plaintiffs paid for such products, the particular advertisements
linked to those particular products, or when such purchases took
place.

Plaintiffs allege that, as a result of Defendants’

misrepresentations, they “have suffered an ascertainable loss of
money,” but do not identify that loss with any more
particularity.

Neither do Plaintiffs claim that the bread and

bakery products they purchased lacked nutritional value due to
the products’ not being made from scratch in store.
Each Amended Complaint includes counts for violations of
the CFA and TCCWNA, and for breach of express warranty.
Defendants filed the instant motions to dismiss for failure to
state a claim on April 3, 2015.
Following the receipt of the parties’ submissions on the
motions to dismiss, the Court issued an Order to Show Cause as
to why each Amended Complaint’s class action allegations should
not be stricken.

Specifically, the Court asked the parties to

address whether the classes defined above would be

6

ascertainable.

The parties submitted responsive papers and the

Court held oral argument on August 12, 2015.

Counsel for ACME

also submitted a motion to strike the declarations and exhibits
attached to Plaintiffs’ response to the Order to Show Cause.
The Court will first address the Amended Complaint’s class
action allegations and then the pending motions to dismiss named
Plaintiffs’ underlying claims.

II.

Plaintiffs’ Class Allegations

The Court has the authority to strike class allegations at
the pleading stage under Fed. R. Civ. P. 12(f) if the complaint
demonstrates that a class action cannot be maintained.

Smith v.

Merial Ltd., No. 10–439, 2012 WL 2020361, at *6 (D.N.J. June 5,
2012).

This Court has addressed and stricken class allegations

at the pleading stage on defendants’ motions pursuant to Fed. R.
Civ. P. 12(f) when it becomes clear from the complaint that
plaintiffs cannot meet the certification requirements of Rule
23.

Id. at *4; see also Advanced Acupuncture Clinic, Inc. v.

Allstate Ins. Co., No. 07-4925, 2008 WL 4056244 at *10 (D.N.J.
Aug. 26, 2008) (granting motion to strike class allegations when
it became clear injunctive relief under Rule 23(b)(2) was
inappropriate); Clark v. McDonald’s Corp., 213 F.R.D 198, 205 n.
3 (D.N.J. 2003) (“ A defendant may move to strike class
allegations prior to discovery in rare cases where the complaint

7

itself demonstrates that the requirements for maintaining a
class action cannot be met.”).
Rule 12(f) states in relevant part:
The court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter. The court may act:
(1)on its own; or
(2)on motion made by a party either before responding to
the pleading or, if a response is not allowed, within 21
days after being served with the pleading.
Fed. R. Civ. P. 12(f).
Although this Court typically has stricken class
allegations pleadings on defendants’ motions pursuant to Rule
12(f)(2), subsection 12(f)(1) explicitly grants the Court
authority to do the same without a defendant first filing a
motion to strike.

Furthermore, Rule 23(c)(1)(A) states that,

“at an early practicable time after a person sues or is sued as
a class representative, the court must determine by order
whether to certify the action as a class action.”

Based on the

pleadings in these cases, the Court found it appropriate to
consider Plaintiffs’ class allegations sua sponte and thus
issued the aforementioned Order to Show Cause.
Plaintiffs claim to satisfy certification requirements
under either 23(b)(2) or (3).

Rule 23(b) states, in pertinent

part:
A class action may be maintained if Rule 23(a) is
satisfied and if:
. . .

8

(2) the party opposing the class has acted or refused to
act on grounds that apply generally to the class, so
that
final
injunctive
relief
or
corresponding
declaratory relief is appropriate respecting the class
as a whole; or
(3) the court finds that the questions of law or fact
common to class members predominate over any questions
affecting only individual members, and that a class
action is superior to other available methods for fairly
and efficiently adjudicating the controversy. The
matters pertinent to these findings include:
(A) the class members' interests in individually
controlling the prosecution or defense of separate
actions; (B) the extent and nature of any litigation
concerning the controversy already begun by or against
class members; (C) the desirability or undesirability of
concentrating the litigation of the claims in the
particular forum; and (D) the likely difficulties in
managing a class action.
Fed. R. Civ. P. 23(b)(emphasis added).

The Court holds that,

based on the complaints and the submissions filed in response to
the Order to Show Cause, Plaintiffs could not satisfy either.
A. 23(b)(2)
The certification question under Federal Rule 23(b)(2) is a
simple one.

Rule 23(b)(2) class actions are “limited to those

class actions seeking primarily injunctive or corresponding
declaratory relief.”

Barnes v. American Tobacco Co., 161 F.3d

127, 142 (3d Cir 1998) (quoting 1 Newberg on Class Actions §
4.11, at 4-39).

Plaintiffs cannot adequately fulfill the

purpose of certification under Rule 23(b)(2) when their claims
are primarily for money damages.

Eisen v. Carlisle & Jacquelin,

391 F.2d 555, 564 (2d Cir. 1968); see also Kaczmarek v.

9

International Business Machines Corp., 186 F.R.D. 307, 313
(S.D.N.Y. 1999); Advisory Committee Notes to the 1966 Amendments
to Fed. R. Civ. P. 23 (“The subdivision does not extend to cases
in which the appropriate final relief relates exclusively or
predominately to money damages.”).

In Kaczmarek, the court

rejected class certification under 23(b)(2) for claims of breach
of contract, breach of warranty, misrepresentation and violation
of the New York Deceptive Business Practices Act, along with one
count seeking injunctive relief, because the claims were
predominately for money damages.

186 F.R.D. at 313.

Like the plaintiffs in Kaczmarek, Plaintiffs bring multiple
claims for money damages under the CFA, TCWNNA and for breach of
express warranty, and add one count in each case seeking
injunctive and declaratory relief.

But the mere existence of a

claim seeking injunctive and declaratory relief does not
automatically trigger 23(b)(2).

As noted in the Order to Show

Cause, the instant lawsuits are primarily for money damages, not
injunctive relief.

Plaintiffs do not contest this fact.

As a

result, Plaintiffs cannot obtain class certification under Rule
23(b)(2).
B. Rule 23(b)(3)
“’A critical need’ of the trial court at certification with
respect to actions under Rule 23(b)(3) ‘is to determine how the
case will be tried, . . . including how the class is to be

10

ascertained.’”

Carrera v. Bayer Corp., 727 F.3d 300, 307 (3d

Cir. 2013) (quoting In re Hydrogen Peroxide Antitrust Litig.,
552 F.3d at 305 (3d Cir. 2008)).

Class certification is proper

only after the trial court is satisfied after a “rigorous
analysis” that all of the requirements of Rule 23 are satisfied.
Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 353 (3d Cir.
2013).

“The rigorous analysis requirement applies equally to

the ascertainability inquiry.”

Byrd v. Aaron’s, Inc., 784 F.3d

154, 163 (3d Cir. 2015).
According to the Third Circuit, ascertainability requires a
reliable mechanism for determining whether putative class
members fall within the class definition.
355.

Hayes, 725 F.3d at

“[T]o satisfy ascertainability as it relates to proof of

class membership, the plaintiff must demonstrate his purported
method for ascertaining class members is reliable and
administratively feasible, and permits a defendant to challenge
the evidence used to prove class membership.” Carrera, 727 F.3d
at 308.

Furthermore, this burden is not met if “individualized

fact-finding or mini-trials will be required to prove class
membership.”

Id. at 307.

The Third Circuit recently addressed the scope of the
analysis necessary when determining whether a 23(b)(3) class may
be certified.

See Byrd, 784 F.3d 154.

The plaintiffs in Byrd

alleged that Defendant stores sold and leased computers

11

installed with spyware through which the defendant could
secretly monitor customers’ use of the computers in violation of
the Electronic Computer Privacy Act.

Id. at 159.

The

plaintiffs moved to certify a class defined as persons who
leased or purchased computers from defendant’s stores, and their
household members, on whose computers the spyware was installed
and activated without those persons’ consent.

Id. at 160.

Reversing the District Court’s denial of the motion, the Third
Circuit held that such a class was ascertainable.

Id.

First, the Byrd court clarified the ascertainability
inquiry:
The ascertainability inquiry is two-fold, requiring
plaintiff to show that: (1) the class is defined with
reference to objective criteria; and (2) there is a
reliable and administratively feasible mechanism for
determining whether putative class members fall within
the class definition. The ascertainability requirement
consists of nothing more than these two inquiries. And
it does not mean that a plaintiff must be able to
identify all class members at class certification –
instead, a plaintiff need only show that class members
can be identified.
Id. at 163 (internal quotations and citations omitted).
Reviewing the “quartet of cases” in which the Circuit adopted
the ascertainability requirement, Byrd acknowledged that no
reliable and administratively feasible mechanism for identifying
class members exists where individualized fact-finding would be
necessary.

Id. at 163 (citing Marcus, 687 F.3d at 592-94).

The

Third Circuit emphasized, however, that trial courts should not

12

conflate the issue of ascertainability with other Rule 23(b)(3)
requirements such as predominance.

Id. at 168-69.

The ascertainability issue has been particularly
significant where proposed classes consist of consumers who
purchased individual allegedly misrepresented products and the
proposed method of identifying class members would rely on
retail records.

See Marcus, 687 F.3d at 592-94 (finding

“serious ascertainability issues” where defendants did not
maintain records that would show which customers’ run-flat tires
had “gone flat and been replaced,” as required in the class
definition); Carrera v. Bayer Corp., 727 F.3d at 303 (rejecting
certification where the retail records plaintiffs proposed using
to prove class membership did not actually identify individual
purchasers of the relevant product).

There may not be a

“records requirement,” Byrd, 784 F.3d at 164, but individual
consumer class members must be identifiable by some reliable
method.

Forcing a defendant to rely on “persons’ declarations

that they are members of the class, without further indicia of
reliability,” would have serious due process implications.”
Marcus, 687 F.3d at 594.
Here, Plaintiffs believe that Defendants’ records will be
able to identify the individuals who purchased bread and bakery
products at the relevant stores during the relevant time period

13

as defined by the class.

The Court disagrees for two primary

reasons.
First, as Defendants highlighted during oral argument, the
ascertainability inquiry does not end with Defendants being able
to identify individual customers who bought bread and bakery
products at the relevant stores.

The class definitions also

require that the purchased products were specifically advertised
at the time as baked in store or baked fresh.

Retail records

would not reflect such information.
The evidence Plaintiffs submitted along with their response
to the Order to Show Cause is illustrative of this underlying
ascertainability problem.

Ms. Mladenov’s declaration states

that she purchased a loaf of “artisan miche bread” at Wegmans on
October 25, 2014, and she attaches a receipt with a line item
for that particular purchase.

But nothing in the receipt, and

nothing in Ms. Mladenov’s declaration for that matter, indicates
that there was a sign in Wegmans that day stating that the miche
loaf was “made in house” or “freshly baked.”

This is

significant because the Amended Complaint defines the class not
only as those who purchased bread or bakery products at Wegmans,
but bread and bakery products “advertised and sold as ‘made in
house’ and/or ‘freshly baked,’” etc.

Even with clear evidence

that Ms. Mladenov purchased Wegmans bread, the Court cannot
ascertain whether that purchase places her in the class her

14

complaint puts forward.

Defendants’ records, if they indeed

exist and provide the level of detail we see in Ms. Mladenov’s
purchase, would not contain all the information necessary to
ascertain the defined classes.
To analogize to Byrd, the class in that case consisted of
individuals who not only purchased or leased computers from
defendants, but also that those computers contained particular
spyware.

If the defendants’ records showed who purchased

computers but not which computers came loaded with the spyware,
there would have been a serious question of ascertainability.
That is the kind of issue we see here.

Defendants’ records of

who purchased bread and bakery products would not alone identify
class members.

Individual and extensive fact-finding as to

whether particular bread and bakery products were advertised as
baked fresh on the particular occasions putative class members
purchased them would be required.

That extra step would trigger

mini-trials for each person who purchased the relevant products
as to what signs were present at the time he or she made the
purchase at issue.
Second, even accepting that it may be possible for
Defendants to determine credit and debit card purchasers of the
relevant bread and bakery products over the class period, or
consumers who participated in some kind of loyalty card program,
that is not so for individual cash purchasers.

15

Plaintiffs argue

that any inability to identify cash purchasers would not affect
the ascertainability inquiry in light of the Byrd court’s
specific decision not to “engraft an ‘underinclusivity’ standard
onto the ascertainability requirement.”
This misreads the Byrd opinion.

Byrd, 784 F.3d at 167.

The Third Circuit stated as

follows:
Individuals who are injured by a defendant but are
excluded from a class are simply not bound by the outcome
of that particular action . . . . In the context of
ascertainability,
we
have
only
mentioned
‘underinclusivity’ with regard to whether the records
used to establish ascertainability were sufficient . .
. not whether there are injured parties that could also
be included in the class . . . . The ascertainability
standard is neither designed nor intended to force all
potential plaintiffs who may have been harmed in
different ways by a particular product to be included in
the class in order for the class to be certified.
Id. (internal citation omitted) (emphasis in original).

Based

on the Court’s understanding of the Byrd opinion, if the records
plaintiffs rely upon are insufficient to identify those included
within the specifically defined class, an ascertainability issue
arises.5

An improper “underinclusiveness” argument would be that

individuals who may have suffered harm lay outside the defined
class.6

5

The alternative would imply that a defined class would be ascertainable if
only a few of the individuals in that class could be identified, even if the
overwhelming majority of the defined class could not be identified.
6 For example, it would be improper to argue that the class defined in the
Wegmans complaint leaves out certain individuals who purchased bread and
bakery products from Wegman’s website.

16

Defendants stated during oral arguments and Plaintiffs did
not dispute that cash purchasers of Defendants’ bread and bakery
products (who did not use loyalty cards) could not be identified
by Defendants in any reliable way.7
For these reasons, the Court will strike the class
allegations from the Amended Complaints.

III. MOTION TO DISMISS STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides that a
court may dismiss a complaint “for failure to state a claim upon
which relief can be granted.”

In order to survive a motion to

dismiss, a complaint must allege facts that make a right to
relief more than speculative.

Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007); see also Fed. R. Civ. P. 8(a)(2).

A

court must accept all allegations in a plaintiff’s complaint as
true, viewing them in the light most favorable to the plaintiff,
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008), but a court is not required to accept sweeping legal
conclusions cast as factual allegations.

Morse v. Lower Merion

Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

The pleadings

must state sufficient facts to show that the legal allegations

7

Further, note that Plaintiffs include subclasses in each complaint
specifically for credit and debit card purchasers. That means all nonsubclass individuals would be cash purchasers. The Court cannot imagine
certifying a class where virtually everyone not in the defined subclass could
not be ascertained.

17

are not simply possible, but plausible.
234.

Phillips, 515 F.3d at

“A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Allegations of fraud are subject to a heightened pleading
standard, requiring a plaintiff to “state with particularity the
circumstances constituting fraud.”

Fed. R. Civ. P. 9(b).

Rule

9(b) requires a plaintiff to plead enough factual information to
put the defendant on notice of the “precise misconduct with
which [it is] charged”.

Frederico v. Home Depot, 507 F.2d 188,

200 (3d Cir. 2007) (citing Lum v. Bank of America, 361 F.3d 217,
223-224 (3d Cir. 2004) (dismissing fraud claims that did not
allege the date, time and place of the alleged fraud or
otherwise inject precision or some measure of substantiation
into a fraud allegation)).
The heightened pleading standard set forth in Rule 9(b)
will apply to Plaintiffs’ CFA claims.

F.D.I.C. v. Bathgate, 27

F.3d 850 (3d Cir. 1994) (affirming District Court‘s application
of Rule 9(b) to CFA claim)

IV.

DEFENDANTS’ MOTIONS TO DISMISS

The Court will address Plaintiffs’ CFA, TCCWNA, and breach
of express warranty claims in turn.

18

A. Plaintiffs’ CFA Claims
To state a claim under the CFA, a plaintiff must allege:
“(1) unlawful conduct by the defendants; (2) an ascertainable
loss on the part of the plaintiff; and (3) a causal relationship
between the defendant’s unlawful conduct and the Plaintiffs’
ascertainable loss.”

Frederico, 507 F.3d at 202 (citing Cox v.

Sears Roebuck & Co., 138 N.J. 2, 23-24 (1994)).

As stated

above, plaintiffs must plead these fraud allegations with
sufficient particularity to meet the heightened pleading
standards of Fed. R. Civ. P. 9(b).

Here, Plaintiffs fail to

properly plead unlawful conduct, an ascertainable loss and a
causal relationship between the alleged unlawful conduct and
loss.

Therefore, Plaintiffs’ CFA claims will be dismissed.
1.

Unlawful Conduct

The CFA defines unlawful conduct or practices as follows:
It shall be an unlawful practice for any person to
misrepresent on any menu or other posted information,
including advertisements, the identity of any food or
food products to any of the patrons or customers of
eating establishments including but not limited to
restaurants, hotels, cafes, lunch counters or other
places where food is regularly prepared and sold for
consumption on or off the premises. This section shall
not apply to any section or sections of a retail food
or grocery store which do not provide facilities for
on the premises consumption of food or food products.
N.J.S.A. § 56:8-2.9.
New Jersey courts have identified three different types of
unlawful conduct as covered under the CFA: (1) affirmative

19

representations; (2) knowing omissions; and (3) regulation
violations.

Frederico, 507 F.3d at 202. An affirmative

representation is “one which is material to the transaction and
which is a statement of fact, found to be false, made to induce
the buyer to make the purchase.”

Mango v. Pierce-Coombs, 370

N.J. Super. 239, 251 (App. Div. 2004).

Plaintiffs allege

unlawful affirmative representations on the part of each
Defendant: posting signs or descriptions that misrepresented the
origin of bread and bakery products as being made in store when
in fact many of the Defendants’ products are “made elsewhere,
delivered frozen or subjected to a form of thermal processing or
any other form or preservation, and reheated or re-baked
immediately before sale.” (Whole Foods Amend. Compl. ¶ 50;
Wegmans Amend. Compl. ¶ 45; ACME Amend. Compl. ¶ 41).
To satisfy the heightened pleading standard for a
fraudulent affirmative act, a plaintiff need not plead the
particular date, time or place of the fraud; however, “the
plaintiff must indicate at the very least who made the material
representation giving rise to the claim and what specific
representations were made.”

NN & R, Inc. v. One Beacon Ins.

Grp., 363 F. Supp. 2d 514, 518 (D.N.J. 2005) (quoting Mardini v.
Viking Freight, Inc., 92 F. Supp. 2d 378, 385 (D.N.J. 1999)).
This Court has found a complaint not to successfully plead
unlawful conduct when plaintiffs did not specify the “precise

20

substance of the alleged misrepresentations which gave rise to
their claims.”

In re Riddell Concussion Reduction Litig., No.

13, 2015 WL 224429, at *10 (D.N.J. Jan. 15, 2015).

Plaintiffs

in Riddell claimed to have been exposed to defendants’
misrepresentations regarding the ability of certain football
helmets to prevent concussions.

Id. at *9.

“However,

Plaintiffs' scatter-shot pleading list[ed] examples of
Defendants' marketing statements without identifying which
specific statement(s), if any, Plaintiffs were exposed to.”

Id.

Since plaintiffs did not identify when the alleged
misrepresentations were made and which particular advertisements
plaintiffs had seen, the Court held that the complaint failed to
satisfy Rule 9(b)’s particularity requirements.

Id. at *9-10.

The instant cases suffer from the same defect.

In the

Wegmans Amended Complaint, for example, Plaintiffs state that
Defendants have displayed in-store signs “such as ‘STORE BAKED
ROLLS.’”

(Wegmans Amend. Compl. ¶ 13) (emphasis added)

But the

Amended Complaint does not allege that Plaintiffs actually saw
this particular sign, in which store that occurred, or when
Plaintiffs saw it.8
Attempting to distinguish Riddell, Plaintiffs argue that
the Court “could determine exactly what misrepresentation was

8

Neither do Plaintiffs in the Wegmans case claim to have read advertisements
on Wegmans’s website allegedly describing certain bread and bakery products
as “Bread, Fresh Baked.” (Wegmans Amend. Compl. ¶ 14)

21

observed by each plaintiff prior to the purchase.”

(Pls.’ Opp.

to Wegmans MTD at 9)

The Amended

That is simply not the case.

Complaint does not state that Plaintiffs saw the “STORE BAKED
ROLLS” sign on a particular occasion and bought rolls.

In each

Amended Complaint, Plaintiffs allege merely that signs such as
certain examples exist and that Plaintiffs were misled by
Defendants’ advertisements.9
Defendants’ stores contain numerous bread and bakery
products.10

The signs advertising such products change often.

This is not a case in which all relevant items were stamped
“freshly baked.”

The Amended Complaints do not allege which

signs Plaintiffs observed at Defendants’ stores and the Court
cannot therefore infer from the pleadings the specific
advertisements that form the bases of Plaintiffs’ CFA claims.
In the end, with regards to named Plaintiffs, the Amended
Complaints allege only that Defendants have misled Plaintiffs by
posting signs suggesting baked goods were made in house.

That

is not the kind of particularity envisioned by Rule 9(b) and

9

In contrast, allegations identifying a particular bread and bakery product
Plaintiffs purchased, and a particular sign linked to that product, would
likely be sufficient to plead unlawful conduct. See Stewart v. Smart
Balance, Inc., No. 11-6174 (JLL), 2012 WL 4168584, at *8 (D.N.J. June 26,
2012) (finding that a complaint put defendant on notice of the precise
misconduct with which it was charged by alleging that plaintiffs purchased a
particular product – Smart Balance’s “Fat Free Milk and Omega-3” – whose
packaging contained a particular misleading statement – “Fat Free” – even
though plaintiffs did not identify the specific stores in which they
purchased the item or the exact dates of such purchases).
10 During oral argument, counsel for Whole Foods stated that its stores carry
thousands of bread and bakery products.

22

Plaintiffs cite to no cases in which similarly vague assertions
were sufficient to state a CFA claim.
There is not enough precision in the Amended Complaints to
put Defendants on notice of fraudulent conduct Plaintiffs allege
– i.e. which particular signs and advertisements misrepresented,
to Plaintiffs, the provenance of particular bread and bakery
products.

Accordingly, Plaintiffs’ CFA claims cannot stand.
2.

Ascertainable Loss

Plaintiffs also fail to properly demonstrate any
ascertainable loss.

The CFA does not define what constitutes an

“ascertainable loss,” but the New Jersey Supreme Court has
recognized that the loss must be capable of calculation, and not
just hypothetical or illusory.

Thiedemann v Mercedes-Benz USA,

LLC, 183 N.J. 234, 248 (2005); see also Torres-Hernandez v. CVT
Prepaid Solutions, Inc., No. 08–1057–FLW, 2008 WL 5381227, at *7
n. 3, (D.N.J. Dec. 9, 2008) (“A sufficiently plead ascertainable
loss is one with enough specificity as to give the defendant
notice of possible damages.”).

“A cognizable injury . . . must

consist of more than just unmet expectation.”

Dzielak v.

Whirpool Corp., 26 F. Supp. 3d 304, 335 (D.N.J. 2014).
There are two relevant theories to ascertain losses under
the CFA: (1) the out-pocket-loss theory, and (2) the loss-invalue or benefit-of-the-bargain theory.

Id.

An out-of-pocket-

loss theory will suffice only if the product received was

23

essentially worthless.

Id.

A benefit-of-the-bargain theory

requires that the consumer be misled into buying a product that
is ultimately worth less than the product that was promised.
Smajlaj v. Campbell Soup Co., 782 F. Supp. 2d 84, 99 (D.N.J.
2011).

Plaintiffs claim to have sufficiently plead both

theories.
In their opposition, Plaintiffs first assert that they
successfully plead an out-of-pocket-loss theory and that they
are entitled to a full refund of all their purchases.
at 14).

(Pl. Opp.

However, the Amended Complaints claim only that

Plaintiffs “would not have purchased the bread and bakery
products, would not have paid as much for the products, or would
have purchased alternative products in absence of Defendant’s
misleading advertisements.”

(Whole Foods Amend. Compl. ¶ 26;

Wegmans Amend. Compl. ¶ 21; ACME Amend. Compl. ¶ 18)

Plaintiffs

do not state which products they purchased or the prices they
paid for such products.

Further, “dissatisfaction with a

product . . . is not a quantifiable loss that can be remedied
under the NJCFA.”
(D.N.J. 2011).

Mason v. Coca-Cola, 774 F. Supp. 2d 699, 704

In Mason, plaintiffs alleged to have been

persuaded to purchase “Diet Coke Plus” by the term “Plus” and
the language “Diet Coke with Vitamins and Minerals,” which
“suggested to consumers that the product was healthy and
contained nutritional value.”

Id. at 701.

24

The Court found that

plaintiffs did not sufficiently plead an out-of-pocket-loss
based merely on a claim that their expectations of the soda were
disappointed.

Id.

Nowhere in their complaints or opposition do Plaintiffs
allege facts supporting an out-of-pocket loss, i.e. that the
products they purchased were worthless.

Plaintiffs, claiming to

be health conscious consumers, do not even allege that the
relevant products lacked nutritional value or were somehow less
nutritious due to their not being made from scratch in store.
Plaintiffs’ apparent dissatisfaction in the bread and bakery
products they purchased, without more, does not suffice under
this theory of ascertainable loss.
In reality, the Amended Complaints allege that Plaintiffs
paid an unnecessary premium for what they believed to be storemade bread, which better falls under the benefit-of-the-bargain
theory of ascertainable loss.

To present a benefit-of-the-

bargain claim, a plaintiff must allege “(1) a reasonable belief
about the product induced by a misrepresentation; and (2) that
the difference in value between the product promised and the one
received can be reasonably quantified.”
2d at 99.

Smajlaj, 782 F. Supp.

There is no requirement that the product received

actually is defective, but rather it simply must be something
other than what was promised.

Id. at 84.

“Failure to quantify

this difference in value results in the dismissal of a claim.”

25

Id. at 101.

However, “Rule 9(b) does not require that a

plaintiff allege a specific dollar amount to survive the
pleadings stage.”

Dzielak, 26 F. Supp. 3d at 336.

In Smajlaj, the plaintiffs demonstrated ascertainable loss
by stating the value of the “low sodium” soup products they
expected to receive after defendant’s misrepresentations, and
subtracted that from the value of the regular sodium content
product they actually received.

782 F. Supp. 2d at 100.

The

Court has held plaintiffs not to sufficiently plead
ascertainable loss on this theory, however, where plaintiffs
failed to allege a comparable product to the one they actually
received so as to provide a basis for calculating damages with a
reasonable degree of certainty.
at *10-11.

See Stewart, 2012 WL 4168584,

In Stewart, plaintiffs claimed that defendant Smart

Balance’s “Fat Free Omega-3” milk they purchased was not
actually “fat free” (it contained one gram of fat) and detailed
the lower prices of other fat free milk products they would have
purchased had they known that fact.

Id. at *9-11.

The Court

held plaintiffs did not sufficiently plead an ascertainable loss
because the other milk products were not comparable to what
plaintiffs received and, without such a comparable product
indicating the value of what plaintiffs purchased, damages could
not be quantified.

Id. at 11.

26

Here, as an initial problem, Plaintiffs do not specify the
products they actually purchased.

Second, Plaintiffs give no

basis for valuing the products they received as opposed to the
products they were promised.

Plaintiffs allege only that

Defendants charge a “premium” for “store baked” bread and bakery
products, and sell “prepackaged bread and/or bakery products
that are not ‘store baked’ and/or ‘fresh baked’ at a
substantially lower price.”

(Whole Foods Amend. Compl. ¶ 15;

Wegmans Amend. Compl ¶ 15; ACME Amend. Compl. ¶ 12)
As in Stewart, the pleadings here do not provide a
sufficient basis for quantifying Plaintiffs’ alleged losses.
Plaintiffs seem to suggest that the products they purchased are
more like pre-packaged bread than fresh bread, but that
comparison fails the same way the comparison between different
milk products failed in Stewart.

Reading the Amended

Complaints, Defendants could not infer anything close to
possible damages.

Lacking any detail as to what Plaintiffs

purchased, the cost of those items, and the supposed value of
what they received, the Amended Complaints do not sufficiently
plead an ascertainable loss under the benefit-of-their-bargain
theory.
3.

Causation

Plaintiffs also fail to allege facts supporting a causal
nexus between Defendants’ alleged misrepresentations and any

27

potential ascertainable loss.

To state a CFA claim, a plaintiff

must allege a “causal nexus” between a defendant’s unlawful
conduct or practice and a Plaintiffs’ ascertainable loss.
Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009).
“Courts in this District have found allegations that a plaintiff
would not have purchased a product had it been accurately
labeled or that they purchased the product because of the
misleading claim sufficient to plead causation.”

Stewart, 2012

WL 4168584, at *11 (internal quotations omitted) (collecting
cases).

However, to properly plead causation, a plaintiff

cannot rely on legal conclusions that do not identify “when
statements were made or when the plaintiffs were exposed to the
statements.”

Torres-Hernandez v. CVT Prepaid Solutions, Inc.,

No. 3:08-cv-1057-FLW, 2008 WL 5381227 *7 (D.N.J. Dec. 17, 2008)
(quoting Dewey v. Volkswagen AG, 558 F. Supp. 2d 505, 526-527
(D.N.J. 2008)).
In Dewey, Plaintiffs alleged, “in only the most general and
conclusory terms,” that misrepresentations on Volkswagen’s
website and in an owner’s manual as to a vehicle’s ability to
withstand damage from flooding and debris “had the cause and
effect of inducing cautious consumers into leasing and/or
purchasing the Class Vehicles.”

Id. at 526.

The Court found

these allegations insufficient to plead a causal nexus between
plaintiffs’ losses and defendant’s affirmative misrepresentation

28

with the specificity required by Rule 9(b) because plaintiffs
failed to allege, “when the statements were made or at what
point – if ever – each Plaintiff was exposed to one or more of
the statements.”

558 F. Supp. 2d at 526-527.

Similarly, in Crozier v. Johnson & Johnson Consumer Cos.,
Inc., the Court dismissed plaintiffs’ CFA claims alleging
affirmative misrepresentations by defendant’s Neosporin
advertisements, which allegedly led consumers to believe that
the product contained Antibiotics, because plaintiffs failed to
plead when they saw advertisements, when they bought the product
and where they bought the product.
(D.N.J. 2012).

901 F. Supp. 2d 494, 506

The plaintiffs’ inability to detail a specific

instance in which they were exposed to a specific advertisement
was fatal to their claim. Id.
Like the plaintiffs in Dewey and Crozier, Plaintiffs here
allege that they were exposed to Defendants’ affirmative
misrepresentations and were “induced” to pay premium prices for
Defendants’ products, but do not allege specific times, dates,
or places for these events.

They do not allege the specific

signs and advertisements to which they were exposed.

The

Amended Complaints allege only that each “Defendant misleads and
deceives consumers, including the named Plaintiffs and the other
members of the Class, by portraying a product that was made,
prebaked, parbaked and/or frozen as ‘made in house’ and/or

29

‘fresh’” (Whole Foods Amend. Compl. ¶ 2l; Wegmans Amend. Compl.
¶ 17; ACME Amend. Compl. ¶ 14).
As stated above, we do not know which specific products
Plaintiffs purchased, whether those specific products were
linked to specific signs or advertisements, and what those signs
or advertisements stated.

We have only general allegations

about the kinds of signs and advertisements Defendants posted,
and that, at least in the case of Whole Foods and Wegmans,
Plaintiffs purchased bread and bakery products from Defendants’
stores on a regular basis over the last six years.

That

Plaintiffs claim to be “health conscious” consumers is not
enough.

Without details as to particular misrepresentations and

subsequent purchases, the complaints do not inject the kind of
particularity required for fraud claims.
Citing to Bonnieview Homeowners Ass’n, LLC v. Woodmont
Builders, L.L.C., 655 F. Supp. 2d 473 (D.N.J. 2009), Plaintiffs
argue that their exposure to Defendant’s allegedly misleading
advertisements is sufficient to establish a causal relationship.
However, Bonnieview is easily distinguishable because plaintiffs
in that case pled facts regarding a specific purchase induced by
specific fraudulent representations, namely their homes.

Id.

The plaintiffs’ ability in that case to tie a specific purchase
to a misrepresentation satisfied the heightened pleading
standard of Rule 9(b).

30

Here, on the other hand, Plaintiffs allege only that they
purchased various bread and bakery products at premium prices
over the years and would not have done so “in absence of
Defendant’s misleading advertisements.”
Amend. Compl. ¶ 9, 26).

(See, e.g., Whole Foods

Plaintiffs do not specify any instance

in which they even saw Defendant’s advertisements, either in
Defendants’ stores or on Defendants’ websites.

Plaintiffs also

fail to allege which food products they purchased as a result of
viewing the advertisements.

The Court cannot, without more,

infer from Plaintiffs’ pleadings a link between an affirmative
misrepresentation and an ascertainable loss.

Conclusory

allegations regarding numerous potential purchases of various
products over a substantial period of time with the mere specter
of supposedly misleading advertisements generally existing in
Defendants’ stores and websites will not suffice under Rule
9(b)’s heightened pleading standard.
Since Plaintiffs have not sufficiently pled unlawful
conduct, an ascertainable loss, or a causal nexus between
unlawful conduct and ascertainable loss, the Court will grant
Defendants’ motions to dismiss Plaintiffs’ CFA claims.
B. Plaintiffs’ Breach of Express Warranty Claims
Under New Jersey law, an express warranty is created when a
seller makes a promise, or offers a description, to a buyer
related to a good or promises that a good will conform to a

31

specific affirmation, promise or description. N.J.S.A. § 12A:2101 et. seq.

To state a claim for breach of express warranty, a

plaintiff must allege: (1) that Defendant made an affirmation,
promise or description about the product; (2) that this
affirmation, promise or description became part of the basis of
the bargain for the product; and (3) that the product ultimately
did not conform to the affirmation, promise or description.
Dzielak, 26 F. Supp. 3d at 324.
Here, Plaintiffs allege that Defendant falsely advertises
bakery products as “made in house” and/or “fresh” and that
Plaintiffs were induced to pay a premium price for the product,
which they would not have done in the absence of Defendants’
misleading advertisements. (See, e.g., Whole Foods Amend. Compl.
¶ 23-26).

The Amended Complaints give examples of the kinds of

advertisements and signs Defendants post, but do not contain
specific allegations as to advertisements that Plaintiffs
actually saw before making particular purchases.
Although Plaintiffs’ breach of express warranty claims do
not trigger the heightened pleading standard associated with
fraud claims, the Court must still determine whether the facts
stated in the pleadings make the breach of express warranty
claims plausible.

The Court finds that the Amended Complaints

fail in this respect and the relevant claims must be dismissed.

32

At its most basic, a breach of express warranty claim
requires a plaintiff to allege that she bought a product based
on a particular promise regarding that product, which ultimately
proved false.

Plaintiffs cannot successfully plead such a claim

without identifying in the Amended Complaints any specific sign
or advertisement they saw and the products they purchased as a
result.

Instead, Plaintiffs present only generalities.

For

example, Whole Foods allegedly placed signs “such as ‘MADE IN
HOUSE BREAD,’ ‘MADE IN HOUSE BAGELS AND ROLLS,’” etc. in its
stores, and these kinds of “misrepresentations induced
Plaintiffs and other members of the Class to pay a premium price
for the products.”

(Whole Foods Amend. Compl. ¶¶ 18, 24

(emphasis added))
The cases to which Plaintiffs cite in support of their
breach of express warranty claims all have one thing in common –
the complaints in those cases alleged specific descriptions or
affirmations that plaintiffs actually saw on particular
products.

See Dzielak, 26 F. Supp. 3d at 317 (washing machine

models bearing the “Energy Star” logo that did not meet those
standards); Gupta v. Asha Enterprises, L.L.C., 422 N.J. Super.
136, 143 (App. Div. 2011) (samosas from a particular restaurant
described as “vegetarian” when they contained meat).

Without an

allegation that Plaintiffs actually saw and read particular
signs, the Amended Complaints do not state facts showing that

33

any particular product description became the basis for some
specific bargain.
For these reasons, the Court will grant Defendants’ motions
to dismiss as to Plaintiffs’ claims for breach of express
warranty.
C. Plaintiffs’ Claims for Injunctive Relief
Plaintiffs’ claim for injunctive relief cannot survive if
their substantive claims are dismissed.

See Edelman v.

Croonquist, No. 09-1930 (MLC), 2010 WL 1816180 *9 (D.N.J. May 4,
2010).

Further, “because injunctions regulate future conduct, a

party seeking prospective injunctive relief must demonstrate a
‘real and immediate’ as opposed to a merely speculative or
hypothetical threat of future harm.”

Access 4 All, Inc. v.

Boardwalk Regency Corp., No. 08-3817 (RMB/JS), 2010 WL 4860565,
at *3 (D.N.J. Nov. 23, 2010) (quoting City of Los Angeles v.
Lyons, 461 U.S. 95, 111 (1983)).

Nowhere in the Amended

Complaints do Plaintiffs allege any threat of immediate harm.
They do not state their intention to continue to purchase
Defendants’ break and bakery products.
Plaintiffs argue that they are still entitled to injunctive
relief based on the threat of future harm to other consumers,
even if Plaintiffs do not intend to purchase the relevant
products from Defendants. (See, e.g., Pls.’ Opp. to Whole Foods
MTD at 18-19).

However, at this stage, the Court considers

34

Plaintiffs’ claims as they apply to Plaintiffs alone, not the
putative class.

Rolo v. City Investing Co. Liquidating Trust,

155 F.3d 644, 659 (3d Cir. 1998). Accordingly, the Court will
grant Defendants’ motions to dismiss as to Plaintiffs’ claims
for injunctive relief.
D. Plaintiffs’ Claim for Declaratory Judgment
Plaintiffs further seek a declaration “that certain signs
and/or advertisements falsely describing that the bread and
bakery products as ‘made in house’ and/or ‘fresh’ are
inaccurate.” (See, e.g., Whole Foods Amend. Compl. ¶ 67).
Plaintiffs’ claims for declaratory judgment must be dismissed
for the following reasons.
First, “a party requesting a declaratory judgment must
allege facts from which it appears there is a substantial
likelihood that he will suffer injury in the future.”

Lattaker

v. Rendell, 269 Fed. Appx. 230, 233 (3d Cir. 2008) (internal
quotations omitted).

Here, Plaintiffs have indicated no

intention to purchase bread and bakery products from Defendants’
stores.

The opposite appears to be true.

Second, the Amended Complaints’ counts for declaratory
judgment are redundant of Plaintiffs other claims for breach of
express warranty and violation of the CFA.

See Maniscalco v.

Brother Intern. Corp. (USA), 627 F. Supp. 2d 494, 504 (D.N.J.
2009) (dismissing declaratory judgment claim where the

35

declaration plaintiffs sought would be duplicative of a
favorable finding on their CFA claims); Hammond v. Doan, 127
N.J. Super. 67, 316 A.2d 68 (App. Div. 1974) (“While a
declaratory judgment action is not precluded by the existence of
an alternative form of relief, there is ordinarily no reason to
involve its provisions where another adequate remedy is
available”).

Here, the declarations Plaintiffs seek in each

case – that Defendants’ “fresh bread” advertisements are
misleading and false - are redundant of Plaintiffs’ CFA and
breach of express warranty claims.
Accordingly, the Court will grant Defendants’ motions to
dismiss Plaintiffs’ declaratory judgment claims.
E. Plaintiffs’ TCCWNA Claims
Plaintiffs further allege that Defendants’ alleged
misrepresentations violate the New Jersey Truth-In-Consumer
Contract, Warranty and Notice Act (“TCCWNA”).

These claims as

well.
The TCCWNA provides:
No seller, lessor, creditor, lender or bailee shall in
the course of his business offer to any consumer or
prospective consumer or enter into any written consumer
contract or give or display any written consumer
warranty, notice or sign after the effective date of
this act which includes any provision that violates any
clearly established legal right of a consumer or
responsibility of a seller, lessor, creditor, lender or
bailee as established by State of Federal law at the
time the offer is made or the consumer contract is signed
or the warranty, notice or sign is given or displayed.

36

N.J.S.A. 56:12-15 (emphasis added).
To properly state a claim under the TCCWNA, a plaintiff
must allege each of following: (1) the plaintiff is a consumer;
(2) the defendant is a seller; (3) the “seller offers a consumer
contract” or gives or displays any written notice, or sign; and
(4) the contract, notice or sign includes a provision that
“violate[s] any legal right of a consumer” or responsibility of
a seller.

Watkins v. DineEquity, Inc., 591 F. App’x 132, 135

(3d Cir. 2014); Bosland v. Warnock Dodge, Inc., 396 N.J. Super.
267 (App. Div. 2007), aff’d, 194 N.J. 543 (2009).

The TCCWNA

only bolsters rights established by other laws; it does not
create any new consumer rights.

Watkins, 591 F. App’x at 134.

Plaintiffs bring their TCCWNA claims under two theories:
Defendants’ alleged violation of Plaintiffs’ rights under the
CFA, and Defendants’ alleged violation of Plaintiffs’ rights
under 21 C.F.R. § 101.95, a federal regulation issued pursuant
to the Food, Drug and Cosmetics Act (“FDCA”) regarding the use
of the term “fresh” in food labeling.11

(Whole Foods Amend.

Compl. ¶ 80-89; Wegmans Amend. Compl. ¶¶ 76-79; ACME Amend.
Compl. ¶¶ 71-77).

11

For reasons unknown to the Court, Plaintiffs do not assert their TCCWNA
claim based on the alleged FDCA violation in the Amended Complaint against
Wegmans. As a result, the Court considers these TCCWNA claims as they apply
to Whole Foods and ACME only.

37

Since the Court finds that Plaintiffs’ have failed to state
viable CFA claims, Plaintiffs’ TCCWNA claims cannot survive to
the extent they rely on the alleged CFA violations.

See Ensey

v. Gov’t Employers Ins. Co., No. 12-07669 (JEI/KMW), 2013 WL
5963113, at *7 (D.N.J. Nov. 7, 2013) (dismissing TCCWNA claim
following dismissal of CFA claim).
Plaintiffs’ TCCWNA claims also fail to the extent they rely
on alleged violations of 21 C.F.R. § 101.95.

“It is well

settled . . . that the FDCA creates no private right of action.”
In re Orthopedic Bone Screw Prods. Liab. Litig., 193 F.3d 781,
788 (3d Cir. 1999).

In In re Orthopedic, the Third Circuit held

that plaintiffs could not “invoke the mantle of conspiracy” to
pursue a cause of action under the FDCA, which otherwise gave
them no right of action.

Id. at 789-90.

Neither can Plaintiffs here use TCCWNA to bootstrap a FDCA
claim they could not otherwise bring.

While this Court has not

yet ruled specifically on whether an alleged FDCA violation
properly forms the basis of liability under the TCCWNA, the
Court has rejected TCCWNA claims based on other statutes that
would not have granted plaintiffs a private right of action.
See Castro v. Sovran Self Storage, Inc., No. 14-6446 (JEI), 2015
WL 4380775, at *11-12 (dismissing TCCWNA claim brought for
violation of the Insurance Producer Licensing Act, which does
not provide for private right of action).

38

Other district courts

have also dismissed attempts to circumvent the FDCA’s denial of
a private right of action.

See, e.g., Summit Technology, Inc.

v. High-Line Medical Instruments Co., Inc., 922 F. Supp. 299,
305-06 (C.D. Cal. 1996) (denying plaintiff’s attempt to use the
Lanham Act as a vehicle for enforcing the FDCA).
Accordingly, the Court will grant Defendants’ motions to
dismiss Plaintiffs’ TCCWNA claims.

V.

Conclusion

For the reasons set forth above, the Court will STRIKE the
class allegations from the Amended Complaints and GRANT
Defendants’ motions to dismiss named Plaintiffs’ claims.

An

appropriate Order accompanies this Opinion.

Date: August 26, 2015

s/ Joseph E. Irenas
_
Joseph E. Irenas, S.U.S.D.J.

39