PERUTO et al v. TIMBERTECH LTD et al

Filing 23

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 8/26/15. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JOHN M. PERUTO, et al.,

HONORABLE JEROME B. SIMANDLE

Plaintiffs,
Civil Action
No. 15-2166 (JBS/JS)

v.
TIMBERTECH LTD, et al.,

OPINION
Defendants.

APPEARANCES:
Alessandra Cristina Phillips, Esq.
Michael Coren, Esq.
COHEN, PLACITELLA & ROTH, PC
Two Commerce Square
2001 Market Street, Suite 2900
Philadelphia, PA 19103
-andChristopher M. Placitella, Esq.
COHEN, PLACITELLA & ROTH, PC
127 Maple Avenue
Red Bank, NJ 07701
Attorneys for Plaintiffs John M. Peruto and Lori A. Peruto
Lorna A. Dotro, Esq.
Mark K. Silver, Esq.
COUGHLIN DUFFY LLP
350 Mount Kemble Avenue
Morristown, NJ 07962
-andPaul A. Williams, Esq.
Holly P. Smith, Esq.
Molly S. Carella, Esq.
SHOOK, HARDY & BACON L.L.P.
2555 Grand Blvd.
Kansas City, MO 64108
Attorneys for Defendant CPG International LLC

SIMANDLE, Chief Judge:
INTRODUCTION
In this putative class action, Plaintiffs John M. Peruto
and Lori A. Peruto contend that Defendants TimberTech Ltd.
(“TimberTech”) and CPG International LLC (“CPG”) (collectively,
“Defendants”) marketed their TimberTech XLM decking product line
(“XLM decking”) as a high-quality, low-maintenance, and longlasting alternative to traditional wooden decking materials.
Despite Defendants’ marketing and advertising claims, Plaintiffs
allege that XLM decking is prone to discoloration and fading
soon after installation.
This matter comes before the Court on a motion by Defendant
CPG to dismiss and to strike class allegations. 1 [Docket Item 9].
CPG argues that Plaintiffs’ Complaint must be dismissed in its
entirety for failure to adequately plead claims for breach of
implied warranty, breach of express warranty, negligent
misrepresentation, unjust enrichment, violation of the New
Jersey Consumer Fraud Act (“NJCFA”), and declaratory relief.
Principally, CPG argues that the alleged defect on which
Plaintiffs’ express warranty claim is based is specifically
excluded from coverage and that Defendants’ marketing statements

1 Only CPG has responded to Plaintiffs’ Complaint by filing the
instant motion to dismiss. No appearance has been entered on
behalf of TimberTech. Plaintiffs assert in the Complaint that
TimberTech previously manufactured and sold the XLM product, but
CPG has done so since 1996. (Compl. ¶ 13.)
2

are insufficient to create an express warranty. Additionally,
CPG argues that Plaintiffs have not adequately alleged an
actionable misrepresentation or omission to support a claim
under the NJCFA, nor the requisite elements of a negligent
misrepresentation claim. Plaintiffs in opposition agree to
dismiss their breach of implied warranty and unjust enrichment
claims, but maintain that their claims for breach of express
warranty, negligent misrepresentation, and violation of the
NJCFA are sufficiently pleaded. In the alternative, Plaintiffs
request leave to amend.
For the reasons discussed below, the Court will grant in
part and deny in part CPG’s motion to dismiss. The Court will
deny without prejudice CPG’s motion to strike class allegations.
BACKGROUND
A.

Facts

The Court accepts as true for purposes of the instant
motion the following facts from the Plaintiffs’ Complaint.
[Docket Item 1].
Defendants designed, manufactured, and sold their synthetic
XLM decking product as an alternative to traditional wood
decking materials. (Compl. ¶ 1.) Defendants and their sales
representatives advertised and marketed XLM as “easier to
install, easier to maintain, and longer-lasting than wooden or
other composite decking.” (Id. ¶ 14.) Plaintiffs allege that
3

they paid a premium price for these attributes, but the product
failed to perform as advertised. (Id. ¶ 15.) According to
Plaintiffs, Defendants were negligent in the design, testing,
and manufacture of XLM decking in a variety of ways, including
the use of polyvinyl chloride (“PVC”), a major component in the
XLM decking, which led to “substantial color deterioration.”
(Id. ¶¶ 16-17.) Plaintiffs maintain that Defendants knew that
XLM decking was prone to premature wear and discoloration as the
result of numerous consumer complaints regarding product
performance. (Id. ¶¶ 22-27.) Nevertheless, Defendants failed to
cure the problem through warranty procedures or other means.
(Id. ¶¶ 26, 27.) Plaintiffs claim that Defendants did not
disclose XLM’s defects to distributors or customers and
continued to sell the product for a premium price. (Id. ¶¶ 22,
24.)
Defendants provided purchasers of the XLM product a Limited
25-Year Residential Warranty (“Limited Warranty”) that expressly
states the following in pertinent part:
TimberTech Limited (“TimberTech”) warrants to Purchaser
that, for a period of twenty five (25) years
(Residential) & ten (10) years (Commercial) from the
date of the original purchase, residential or commercial
as the case may be, (the “Term”), under normal use and
service conditions, that: (1) the decking Materials will
be free from material defects in workmanship and
materials, and will not check, split, splinter, rot or
suffer structural damage from termites or fungal decay.
(Id. ¶ 20.)
4

Plaintiffs assert that Defendants, through product
brochures, videos and internet marketing, represented that the
XLM product was reliable and low-maintenance. (Id. ¶ 31.)
Plaintiffs offer the following examples of Defendants’ marketing
statements regarding the XML decking material:
•
•
•
•
•
•
•

“designed to provide years of low-maintenance use and
enjoyment”
“dependable and attractive for years . . .”
“years of outdoor living pleasure”
“less work more life”
“designed to withstand the elements [so] you’re not
going to have to do the traditional painting and
staining you would with a traditional wood deck”
“is going to get the same consistent, high-quality
board-to-board”
“designed to not rot, wrap or splinter and contain a
25-year warranty.”

(Id. ¶ 32.)
Plaintiffs allege that they relied on these statements when
purchasing XLM decking. (Id. ¶ 37.) Moreover, Plaintiffs contend
that they would not have purchased the product, paid a premium
price, or installed it in their property if they knew about the
deficiencies in the XLM product prior to purchase. (Id. ¶ 36.)
In May, 2012, Plaintiffs began purchasing the XLM decking
for their home in Margate, New Jersey. (Id. ¶¶ 39, 40.) Prior to
purchase, Plaintiffs and their contractor J.P Leeds, Jr.
Builder, Inc. (“Leeds”) researched several decking products and
decided to purchase and install XLM due to its “purported

5

superior weathering and low maintenance properties.” (Id. ¶¶ 39,
40.) The decking began to discolor shortly after the final
installation. (Id. ¶ 40.) Leeds promptly reported the
discoloration to Defendants on Plaintiffs’ behalf. (Id. ¶ 41.)
Defendants, however, only offered Plaintiffs a treatment
solution for the XLM decking’s discoloration. (Id. ¶ 43.)
Defendants refused to warrant that the treatment solution would
permanently correct the problem. (Id.)
B.

Procedural history

Plaintiffs filed their seven-count class action complaint
against Defendants on February 11, 2015 in the Superior Court of
New Jersey, Atlantic County, Law Division. Plaintiffs asserted
claims for breach of implied warranty, breach of express
warranty, unjust enrichment, negligent misrepresentation,
violation of the NJCFA, and declaratory and injunctive relief.
On March 25, 2015, CPG removed this action to the District of
New Jersey pursuant to 28 U.S.C. §§ 1332(d), 1446, 1453 and the
Class Action Fairness Act of 2005. [Docket Item 1]. CPG then
filed the instant motion to dismiss. [Docket Item 9.] Plaintiffs
filed opposition [Docket Item 21] and CPG filed a reply [Docket
Item 22]. In their opposition, Plaintiffs agreed to withdraw

6

their breach of implied warranty and unjust enrichment claims
and an accompanying order will so provide. 2
STANDARD OF REVIEW
Pursuant to Rule 8(a)(2), Fed. R. Civ. P., a complaint need
only contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Specific facts are not
required, and “the statement need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it
rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations
omitted). While a complaint is not required to contain detailed
factual allegations, the plaintiff must provide the “grounds” of
his “entitle[ment] to relief”, which requires more than mere
labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007).
A motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P.,
may be granted only if, accepting all well-pleaded allegations
in the complaint as true and viewing them in the light most
favorable to the plaintiff, a court concludes that the plaintiff
failed to set forth fair notice of what the claim is and the
grounds upon which it rests. Id. A complaint will survive a
motion to dismiss if it contains sufficient factual matter to
“state a claim to relief that is plausible on its face.”

2

Accordingly, there is no need to address CPG’s arguments as to
Plaintiffs’ implied warranty and unjust enrichment claims.
7

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Although a court
must accept as true all factual allegations in a complaint, that
tenet is “inapplicable to legal conclusions,” and “[a] pleading
that offers labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do.” Id. at 678.
In addition, Rule 9(b), Fed. R. Civ. P., imposes a
heightened pleading standard on fraud-based claims, requiring a
party to “state the circumstances constituting fraud with
particularity.” Klein v. Gen. Nutrition Companies, Inc., 186
F.3d 338, 344 (3d Cir. 1999). This requirement is intended “to
place the defendants on notice of the precise misconduct with
which they are charged, and to safeguard defendants against
spurious charges of immoral and fraudulent behavior.” Seville
Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791
(3d Cir. 1984).
“[A] court should grant a motion to strike class
allegations only if the inappropriateness of class treatment is
evident from the face of the complaint and from incontrovertible
facts.” McPeak v. S-L Distribution Co., Civ. 12-348 (RBK/KMW),
2014 WL 4388562, at *4 (D.N.J. Sept. 5, 2014) (citing Landsman &
Funk PC v. Skinder-Strauss Associates, 640 F.3d 72, 93 n.30 (3d
Cir. 2011)).

8

DISCUSSION
In the instant motion to dismiss, CPG argues that
Plaintiffs’ claims fail as a matter of law. CPG contends that
Plaintiffs’ breach of express warranty claim fails because the
Limited Warranty does not cover the alleged defect and
Plaintiffs have not alleged conduct establishing a breach of
this warranty. CPG also argues that Plaintiffs cannot rely on
Defendants’ alleged marketing statements as the basis for an
express warranty claim. CPG asserts that Plaintiffs’ NJCFA claim
must be dismissed because Plaintiffs have not adequately pleaded
ascertainable loss, an unlawful misrepresentation or omission,
or causation. CPG similarly maintains that Plaintiffs’ negligent
misrepresentation claim fails because Plaintiffs have not
alleged reasonable reliance or a fiduciary relationship. Because
Plaintiffs’ claim for declaratory relief is derivative of their
other claims, CPG argues that this claim should be dismissed as
well. CPG also requests that the Court strike Plaintiffs’ class
allegations due to “insurmountable obstacles to class
certification.” (Def. Br. [Docket Item 9-1] at 5.)
Plaintiffs in response defend the sufficiency of their
pleading and contend that they have adequately stated claims for
breach of express warranty, negligent misrepresentation, and for
a violation of the NJCFA. Plaintiffs contends that CPG’s
argument regarding class allegations is premature and meritless.
9

The Court will address CPG’s arguments as to each of
Plaintiffs’ remaining claims in turn before considering CPG’s
request to strike class allegations.
A.

Breach of express warranty

Under New Jersey law, “to state a claim for breach of
express warranty, [a plaintiff] must properly allege: (1) that
[the 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.” Frederico v. Home
Depot, 507 F.3d 188, 203 (3d Cir. 2007); Dzielak v. Whirlpool
Corp., 26 F. Supp. 3d 304, 324 (D.N.J. 2014) (quotation
omitted).
Plaintiffs assert that Defendants breached two distinct
express warranties: 1) the express written Limited Warranty; and
2) specific, written marketing statements concerning the XLM
product’s reliability, longevity and appearance.
1.

Limited Warranty

The Court first addresses Plaintiffs’ express warranty
claim based on the Limited Warranty. Plaintiffs contend that
Defendants breached this warranty when the XLM decking installed
at their Margate, New Jersey property began to discolor and fade
and Defendants failed to cure the problem. CPG argues that
10

discoloration, fading and splotching are not covered by the
warranty and are in fact explicitly excluded from warranty
coverage. The Court agrees.
Because this aspect of Plaintiffs’ breach of express
warranty claim is based on the language of the Limited Warranty,
which is only partially quoted in the Complaint, the Court has
considered the entire document as provided by CPG in connection
with the instant motion. 3 The Limited Warranty provides that the
XLM decking “will not check, split, splinter, rot or suffer
structural damage from termites or fungal decay.” (Compl. ¶ 20.)
CPG properly notes, however, that the Limited Warranty expressly
excludes certain defects from coverage:
TimberTech does not warrant against and is not
responsible for, and no implied warranty shall be deemed
to cover, any product failure, product malfunction, or
damages attributed to . . . (5) variations or changes in
color of TimberTech Products; (6) normal weathering due
to exposure to sunlight, weather and atmosphere which
can cause colored surfaces to . . . stain[].
(Davis Decl. Ex. 1 [Docket Item 9-3]; see also Def. Br. at
5-6.)

3

Generally, the court may only consider the allegations in the
complaint when deciding a motion under Rule 12(b)(6). Pryor v.
Nat'l Collegiate Athletic Ass'n., 288 F.3d 548, 560 (3d Cir.
2002). However, a document whose contents are alleged in the
complaint and “whose authenticity no party questions, but which
[is] not physically attached to the pleading, may be
considered.” Id. Further, the court may consider documents that
the defendant attaches to a motion to dismiss if they are
referred to in the plaintiff's complaint and central to
plaintiff’s claim. Id.
11

Plaintiffs’ express warranty claim is premised on a
supposed defect in the XLM decking which causes the product
to discolor, splotch, and/or fade soon after installation.
See, e.g., Compl. ¶ 1 (“XLM decking product is prone . . .
to major discoloration and failure in its finish.”); Id. ¶
3 (same); Id. ¶ 16 (alleging that PVC “was defective and
did not, among other things, retain its color.”); Id. ¶¶
26-27 (discussing consumer complaints regarding
“discoloration and fading”); Id. ¶ 42 (describing photos
which purportedly “depict the discoloration and fading” in
Plaintiffs’ decking). This is the type of defect expressly
excluded from coverage under the Limited Warranty.
Plaintiffs do not allege a defect which caused the decking
to “check, split, splinter, rot or suffer structural damage
from termites or fungal decay.” It is therefore clear that
Plaintiffs cannot maintain a breach of express warranty
claim based on the alleged discoloration and fading of the
XLM decking, and this aspect of their claim must be
dismissed.
The Court’s finding is consistent with In re AZEK
Bldg. Products, Inc., Mktg. & Sales Practices Litig., Civ.
12-6627, 2015 WL 410564, at *4 (D.N.J. Jan. 30, 2015), in
which Judge Arleo confronted strikingly similar allegations
regarding discoloration of defendants decking products. See
12

Id. at *1 (“Plaintiffs claim that polyvinyl chloride (PVC),
from which Defendant’s decking products are made, develops
stains, scratches, discoloration, chalking, and streaking
under normal use.”). In In re AZEK, the court dismissed
plaintiffs’ express warranty claim based on the written
limited warranty because, as here, plaintiffs failed to
allege a defect that was actually covered by the terms of
the limited warranty. Id. at *4. Plaintiffs have provided
no factual or legal basis to distinguish this case from In
re AZEK. 4 Therefore, the Court will grant CPG’s motion to
dismiss Plaintiffs’ breach of express warranty claim to the
extent it is based on an alleged breach of the Limited
Warranty.
2.

Misrepresentations

The Court turns to the second basis for Plaintiffs’ breach
of express warranty claim: Defendants’ alleged marketing
statements. The New Jersey U.C.C. provides that express
warranties are created through “[a]ny affirmation of fact or
promise made by the seller to the buyer which relates to the

4

In fact, Plaintiffs provide no argument in their opposition
brief to support their express warranty claim based on the
Limited Warranty. Plaintiffs only argue that this claim should
proceed based on Defendants’ marketing statements about the XLM
product. It thus appears that Plaintiffs have abandoned the
Limited Warranty as a basis for their breach of express warranty
claim.
13

goods and becomes part of the basis of the bargain creates an
express warranty that the goods shall conform to the affirmation
or promise.” N.J.S.A. § 12A:2-313(1)(a). No specific language or
intent is necessary to create an express warranty. Id. See also
Cipollone v. Liggett Grp., Inc., 893 F.2d 541, 574 (3d Cir.
1990), aff'd in part, rev'd in part, 505 U.S. 504 (1992).
Ultimately, the question of whether a particular representation
made by the seller amounts to an express warranty, as opposed to
mere puffery, is normally a question for the trier of fact. See
Gladden v. Cadillac Motor Car Division, 83 N.J. 320, 325 (1980);
Dzielak, 26 F. Supp. 3d at 324. “Representations are presumed to
be part of the basis of the bargain once the buyer becomes aware
of the affirmations, absent clear affirmative proof that the
buyer knew the promise or fact was untrue.” In re AZEK, 2015 WL
410564, at *4 (citing Liberty Lincoln–Mercury, 171 F.3d, 818 825
(3d Cir. 1999)); Viking Yacht Co. v. Composites One LLC, 496 F.
Supp. 2d 462, 469 (D.N.J. 2007)).
Because affirmations of fact about which buyers are aware
are presumed to be part of the basis of the bargain unless
defendant shows that the buyer knew the affirmation was untrue,
the Court rejects CPG’s argument that Plaintiffs have not
adequately alleged that Defendants’ representations in marketing
and advertisements became the basis of the bargain. Cipollone v.
Liggett Grp., Inc., 893 F.2d 541, 567-68 (3d Cir. 1990), aff'd
14

in part, rev'd in part, 505 U.S. 504 (1992) (noting that proof
that plaintiff “read, heard, saw or knew of the advertisement
containing the affirmation of fact or promise” is sufficient to
“make it part of the basis of the bargain”). See also Viking
Yacht, 496 F. Supp. 2d at 470. Plaintiffs have alleged that they
were exposed to specific affirmations of fact in product
brochures, videos and internet marketing. Plaintiffs provide
examples of such affirmations including that the XLM decking is
“designed to withstand the elements [so] you’re not going to
have to do the traditional painting and staining you would with
a traditional wood deck.” 5 (Compl. ¶ 32.) This type of statement
about the quality of the product at issue is sufficient to
create an express warranty and CPG has not argued that
Plaintiffs knew it to be untrue. Plaintiffs’ allegations are
thus adequate to establish an express warranty based on
Defendants’ marketing claims about the XLM decking.
The Court likewise rejects CPG’s argument regarding
reliance. As noted above, Plaintiffs’ have identified specific

5

CPG argues that Plaintiffs cannot assert a breach of express
warranty claim based on this statement because they have not
alleged that they were required to paint or stain the product at
issue as they would a traditional wood deck. Plaintiffs clearly
allege that the XLM decking was defective due to premature
discoloration and fading. The only remedy Defendants offered in
response to Plaintiffs’ complaints about this alleged defect was
a treatment solution. It is thus reasonable to infer that
Defendants’ affirmation that ordinary painting and staining
would not be required was false.
15

marketing statements which induced them to purchase and install
the XLM product in their Margate home. Plaintiffs expressly
allege that they and their contractor considered several decking
products and decided to purchase and install XLM due to its
“purported superior weathering and low maintenance properties.”
(Id. ¶¶ 39, 40.) Plaintiffs further allege that they relied on
these statements when purchasing XLM decking and that they would
not have purchased the product, paid a premium price, or
installed it in their property if they knew about the
deficiencies in the XLM product prior to purchase. (Id. ¶¶ 3638.) Therefore, Plaintiffs have adequately pleaded a breach of
express warranty claim based on Defendants’ representations in
marketing and advertising that the XLM decking would not
discolor or fade. 6
CPG also argues that the Limited Warranty expressly
disclaims all other warranties, including any other express
warranties. 7 Plaintiffs maintain in response that this purported

6

The Court also finds such allegations sufficient to plead
causation.
7 To be valid and enforceable, “[d]isclaimers of express
warranties must be ‘clear and conspicuous.’” Viking Yacht, 496
F. Supp. 2d at 470 (quoting Gladden v. Cadillac Motor Car Div.,
83 N.J. 320, 331 (1980)). Plaintiffs do not argue that the
purported disclaimer was not clear and conspicuous. Indeed, the
disclaimer in the Limited Warranty is written in bold, capital
letters and appears in its own paragraph:
EXCEPT FOR (1) THE EXPRESS WRITTEN WARRANTY CONTAINED
HEREIN, AND, (2) THE 25 YEAR LIMITIED RESIDENTIAL FADE
AND STAIN WARRANTY APPLICABLE TO EARTHWOOD EVOLUTIONS
16

disclaimer is inoperative because Defendants’ marketing claims
were inconsistent with the terms of the Limited Warranty.
Generally, complete exclusion of express warranties is strongly
disfavored under the U.C.C. See N.J.S.A. 12A:2-313, Cmt. 4; see
also Gladden v. Cadillac Motor Car Div., Gen. Motors Corp., 83
N.J. 320, 330 (1980). Therefore, exclusions or limitations
“engrafted upon express warranties [are] inoperative to the
extent its terms are unreasonably inconsistent with the express
warranties that are given.” Gladden, 83 N.J. at 330; see also
Viking Yacht, 496 F. Supp. 2d at 470; N.J.S.A. 12A:2-316(1). In
the present action, Defendants’ alleged marketing statement that
buyers would not “have to do the traditional painting and
staining you would with a traditional wood deck” appears
inconsistent with the terms of the Limited Warranty which
excludes from coverage “variations or changes in color of
TimberTech Products” and “normal weathering due to exposure to
sunlight, weather and atmosphere which can cause colored

DECKING ONLY . . . TIMBERTECH MAKES NO OTHER WARRANTIES,
GUARANTEES OR INDEMNITIES, WHETHER EXPRESS OR IMPLIED,
ARISING BY LAW, COURSE OF DEALING, USAGE OF TRADE, CUSTOM
OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTY OF MECHANTABLITY AND IMPLIED WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH OTHER
WARRANTIES, GUARANTEES AND INDEMNITIES ARE HEREBY
DISCLAIMED, OVERRIDDEN AND EXLUDED FROM THIS TRANSACTION
FOR THE WARRANTY TERM AND BEYOND THE WARRANTY TERM.
(Davis Decl. Ex. 1.) Accordingly, the Court finds no basis to
question the validity of the disclaimer based on the manner in
which it was presented to consumers.
17

surfaces to

. . . stain[].” (Davis Decl. Ex. 1.) This apparent

inconsistency renders the disclaimer in the Limited Warranty
inoperative and cannot be a basis to dismiss Plaintiffs’ breach
of express warranty claim. Consequently, the Court will deny
CPG’s motion to the extent it seeks dismissal in this regard. 8
B.

Negligent misrepresentation

Under New Jersey law, “[a] cause of action for negligent
misrepresentation may exist when a party negligently provides
false information.” Karu v. Feldman, 119 N.J. 135, 146 (1990).
To prevail on a negligent misrepresentation claim, a plaintiff
must prove that the defendant negligently made an incorrect
statement, upon which the plaintiff justifiably relied. Green v.
Morgan Properties, 215 N.J. 431, 457 (2013); H. Rosenblum, Inc.
v. Adler, 93 N.J. 324, 334 (1983). A negligent misrepresentation
claim may also be based on an omission where plaintiff
adequately pleads a duty to disclose. 9 S. Broward Hosp. Dist. v.
MedQuist Inc., 516 F. Supp. 2d 370, 397 (D.N.J.), aff'd in part,

8

Neither case cited by CPG addressed inconsistency between the
terms of a written warranty and affirmations of fact made in
marketing and advertising materials. See Advanced Drainage Sys.,
Inc. v. SiteCo Materials, Inc., Civ. 13-1349 (JAP), 2014 WL
1092809, at *4 (D.N.J. Mar. 18, 2014); Moulton v. LG Electronics
USA, Inc., Civ. 11-4073 (JLL), 2012 WL 3598760, at *2 (D.N.J.
Aug. 21, 2012).
9 Under New Jersey law, a duty to disclose arises: “(1) when
there is a fiduciary relationship between the parties; (2) when
the transaction is intrinsically fiduciary, and calls for food
faith and full disclosure; and (3) and when one party expressly
places a special trust or confidence in the other.” Id.
18

258 F. App'x 466 (3d Cir. 2007). See also Henderson v. Volvo
Cars of N. Am., LLC, Civ. 09-4146 (DMC), 2010 WL 2925913, at *11
(D.N.J. July 21, 2010) (“A plaintiff may not bring an omissionbased claim unless the breaching party owes him or her an
independent duty imposed by law” requiring disclose.”)
(quotation and alterations omitted). CPG argues that Plaintiffs
have not identified any statements beyond mere puffery, that
Plaintiffs have failed to plead reliance, and that Plaintiffs
have failed to establish a fiduciary relationship between the
parties as required for an omission-based claim.
Many of the marketing statements that Plaintiffs identify
in the Complaint are mere puffery. “Puffery is an exaggeration
or overstatement expressed in broad, vague, and commendatory
language.” Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 945 (3d
Cir. 1993). “[S]tatements that can be categorized as ‘puffery’
or ‘vague and ill-defined opinions' are not assurances of fact
and thus do not constitute misrepresentations.” CPS
MedManagement LLC v. Bergen Reg'l Med. Ctr., L.P., 940 F. Supp.
2d 141, 159 (D.N.J. 2013) (citation omitted). “Puffery is
distinguishable from misdescriptions or false representations of
specific characteristics of a product” and “[a]s such, it is not
actionable.” Castrol, 987 F.2d at 945. Under New Jersey law,
statements of puffery are “simply . . . not statements of fact.”
New Jersey Citizen Action v. Schering–Plough Corp., 367 N.J.
19

Super. 8, 14 (App. Div. 2003). Of the statements quoted in the
Complaint, only two can be construed as assurances of fact: 1)
“designed to withstand the elements [so] you’re not going to
have to do the traditional painting and staining you would with
a traditional wood deck;” and 2) “designed to not rot, wrap or
splinter and contain a 25-year warranty.” (Compl. ¶ 32.) 10 In
light of the allegations in the Complaint regarding premature
discoloration and/or fading in the XLM product, Plaintiffs have
alleged a plausible negligent misrepresentation claim based on
these two alleged marketing statements. 11 The Court will deny

10

In contrast, the Court finds the other alleged marketing
statements quoted in the Complaint to be puffery as a matter of
law. See Deepstar Marine, Inc. v. Xylem Dewatering Solutions,
Inc., Civ. 12-7628 (JBS), 2014 WL 3778620, at *9 (D.N.J. July
30, 2014). These other statements consist merely of broad, nonspecific assertions regarding the XLM product’s quality and
durability: “designed to provide years of low-maintenance use
and enjoyment;” “dependable and attractive for years . . . ;”
“years of outdoor living pleasure;” “less work more life;” and
“get the same consistent, high-quality board-to-board.” (Id. ¶
32.) Such vague, subjective statements are not actionable. See
In re Toshiba Am. HD DVD Mktg. & Sales Practices Litig., Civ.
08-939 (DRD), 2009 WL 2940081, at *9 (D.N.J. Sept. 11, 2009
(finding representations that “HD DVD offered the best of highdefinition television and DVD” and that “HD DVD was a format for
today, tomorrow and beyond” to be non-actionable puffery). As
such, they cannot form a basis for Plaintiffs’ negligent
misrepresentation claim.
11 As discussed above, the Court finds that Plaintiffs have
adequately alleged that they reasonably relied on these
marketing statements. (Compl. ¶¶ 36-38.) The Court also rejects
CPG’s contention that Plaintiffs have not pleaded reliance with
requisite particularity. See Marrin v. Capital Health Sys.,
Inc., Civ. 14-2558 (FLW), 2015 WL 404783, at *9 (D.N.J. Jan. 29,
2015) (explaining that Rule 9(b) applies to negligent
misrepresentation claims that sound in fraud as opposed to
20

CPG’s motion to dismiss to the extent it seeks dismissal of
Plaintiffs’ negligent misrepresentation claim based thereon.
The Court agrees with CPG that Plaintiffs have failed to
allege a fiduciary relationship as required to assert an
omission-based negligent misrepresentation claim. Courts in this
District have dismissed omission-based negligent
misrepresentation claims where plaintiffs failed to allege a
fiduciary duty between a remote manufacturer and product
purchasers or that plaintiffs reposed special trust in defendant
prior to purchase. Henderson v. Volvo Cars of N. Am., LLC, Civ.
09-4146 (DMC), 2010 WL 2925913, at *12 (D.N.J. July 21, 2010);
Alin v. Am. Honda Motor Co., Civ. 08-4825 (KSH), 2010 WL
1372308, at *14 (D.N.J. Mar. 31, 2010). See also Green v.
G.M.C., 2003 WL 21730592, at *8 (N.J. Super. Ct. App. Div. July
10, 2003). Plaintiffs only argue that they relied on Defendants’
marketing statements regarding the XLM product and that
Defendants had knowledge of a latent defect which they should
have disclosed to consumers. Plaintiffs provide no authority
establishing a duty to disclose based on the allegations in the
Complaint. Therefore, the Court will dismiss without prejudice

negligence). Even under Rule 9(b)’s heightened pleading
standard, the Court finds that Plaintiffs have sufficiently
alleged that they and their contractor researched various
competing products and purchased the XLM product in reliance on
Defendants’ marketing statements specifically recounted in the
Complaint.
21

Plaintiffs’ negligent misrepresentation claim to the extent it
is based on a failure to disclose a defect in the XLM product.
C.

New Jersey Consumer Fraud Act

The Court will dismiss Plaintiffs’ claim under the New
Jersey Consumer Fraud Act for failure to adequately allege
ascertainable loss. As this Court recently observed, “a
plaintiff states a claim for damages under the [NJCFA] based on
a benefit-of-the-bargain theory if he or she alleges (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. Courts in this District have required plaintiffs to
specify the price paid for the product and the price of
comparable products to adequately state a claim under the
NJCFA.” In re Riddell Concussion Reduction Litig., 77 F. Supp.
3d 422 (D.N.J. 2015) (citations omitted) (collecting cases). As
in Riddell prior to the filing of plaintiffs’ amended pleading,
Plaintiffs in the present action merely allege that they paid a
“price premium” for the XLM decking and fail to state the price
they paid for the product at issue or any other facts necessary
to plead ascertainable loss. Id. Consequently, the Court will
dismiss Plaintiffs’ NJCFA claim without prejudice. 12

12

Because the Court finds that Plaintiffs have not sufficiently
pleaded ascertainable loss, the Court need not address CPG’s
22

D.

Declaratory relief

CPG also seeks dismissal of Plaintiffs’ claim for
declaratory relief. CPG argues that such a claim must be
dismissed because it is derivative of Plaintiffs’ other claims
which it contends fail as a matter of law. Moreover, CPG states
that there is no independent cause of action for declaratory
relief under New Jersey law. CPG’s argument is meritless and
inapposite because the Court will permit Plaintiffs’ express
warranty and negligent misrepresentation claims to proceed at
this time. Moreover, “[t]he Court will consider appropriate
relief only when liability is established.” In re Riddell
Concussion Reduction Litig., Civ. 13-7585 (JBS/JS), 2015 WL
4640425, at *16 (D.N.J. Aug. 3, 2015). Therefore, CPG’s motion
will be denied to the extent it seeks dismissal of Plaintiffs’
claim for declaratory relief. 13
E.

Motion to strike class allegations

In the instant motion, CPG requests that the Court strike
the class allegations in the Complaint because the putative
class is not ascertainable and implicates complex choice of law
issues.

other arguments under the NJCFA regarding unlawful conduct and
causation.
13 To the extent Plaintiffs prefer to amend their pleading to
include declaratory judgment as a requested form of relief as
opposed to a separate count, such leave is granted.
23

“Generally courts do not consider whether a proposed class
meets the Fed. R. Civ. P. 23 class requirements until after
plaintiffs move for class certification.” Luppino v. MercedesBenz USA, LLC, Civ. 09-5582 (DMC/JBC), 2013 WL 6047556, at *3
(D.N.J. Nov. 12, 2013) (citation omitted). See also Landsman &
Funk PC v. Skinder-Strauss Associates, 640 F.3d 72, 93 (3d Cir.
2011) (noting that determining whether the requirements of Rule
23 have been satisfied requires “rigorous analysis” and “[i]n
most cases, some level of discovery is essential to such an
evaluation”). In certain rare cases, however, the court may
grant a motion to strike or dismiss class allegations prior to
discovery “where the complaint itself demonstrates that the
requirements for maintaining a class action cannot be met.” Id.
at 93 n.30. See also Forst v. Live Nation Entm’t Inc., Civ. 142452, 2015 WL 858314, at *5 (D.N.J. Feb. 27, 2015).
CPG’s argument regarding ascertainability is premature and
rests on unsupported assertions well-beyond the four corners of
the Complaint. 14 For example, CPG, without citation, contends

14

Plaintiffs propose the following class definition:
All persons and entities that own a commercial or residential
property located within New Jersey that has a deck or
structure constructed with XLM decking installed on or after
January 1, 1996, as well as any individual or entity that
paid for or performed repairs of damage caused by the failure
of the installed XLM Decking due to discoloration, splotching
or fading of the decking. In addition, the proposed class
includes, without limitation, all such persons or entities
who were denied or partially denied warranty coverage for
24

that it does not have sufficient records to determine class
membership, nor would any other entity. The Court has no basis
to accept or reject CPG’s argument regarding the availability of
such records. Ultimately, Plaintiffs will bear the burden of
demonstrating that class membership is ascertainable; one cannot
determine, upon the present pleadings, whether receipts or
records or other means exist (or for which some reasonable
substitute can be found) to identify class members.
Consequently, the question of ascertainability is more
appropriately addressed upon a developed factual record after
class discovery. See Luppino, 2013 WL 6047556, at *7; In re
Paulsboro Derailment Cases, Civ. 12-7586 (RBK/KMW), 2014 WL
1371712, at *6 (D.N.J. Apr. 8, 2014); McPeak v. S-L Distribution
Co., Civ. 12-348 (RBK/KMW), 2014 WL 4388562, at *10 (D.N.J.
Sept. 5, 2014).
The Court also finds CPG’s choice of law argument
premature. While courts are generally wary of nationwide classes
due to choice of law issues, among other reasons, Plaintiffs’
proposed class here is tailored to owners of commercial or
residential property located in New Jersey. See Kalow &

failure of the XLM decking based on a claim that the
discoloration, splotching or fading of the decking, [sic] was
not covered by the warranty or that other alleged warranty
limitations applied.
(Compl. ¶ 45.)
25

Springut, LLP v. Commence Corp., 272 F.R.D. 397, 409 (D.N.J.
2011) (“[T]he United States Supreme Court has stated that the
Court may not take a transaction with little or no relationship
to the forum and apply the law of the forum in order to satisfy
the procedural requirement that there be a common question of
law.”) (quotation omitted); Ford Motor Co. Ignition Switch
Products Liab. Litig., 174 F.R.D. 332, 348 (D.N.J. 1997) (“Since
the laws of each of the fifty states vary on important issues
that are relevant to plaintiffs' causes of action and
defendants' defenses, the court cannot conclude that there would
be no conflict in applying the law of a single jurisdiction,
whether it be Michigan, or New Jersey, as the plaintiffs
suggest.”). By narrowing the class to New Jersey real
properties, it is likely that New Jersey will have a substantial
connection to the claims in this litigation, regardless of
whether the class members are citizens of another state. Even if
after a choice of law analysis it is necessary to apply the laws
of multiple states to Plaintiffs’ claims, the class may be
divided into geographic or other subclasses to facilitate
adjudication of this case as a class action. See Ford Motor Co.
Ignition Switch Products Liab. Litig., 174 F.R.D. at 355 (“Even
though these actions cannot be certified as proposed, the court
has made suggestions for dividing the class into geographic and
model/year subclasses, if feasible.”). Moreover, the named
26

Plaintiffs are citizens of Pennsylvania who own property in
Margate, New Jersey. The only choice of law analysis possible at
this time would be a comparison of Pennsylvania and New Jersey
law as to Plaintiffs’ claims for breach of express warranty,
negligent misrepresentation, and declaratory relief. Such an
analysis would be premature at this time because the Court will
permit Plaintiffs to file an amended complaint curing the
deficiencies identified above and it is not yet clear what
claims will ultimately proceed. Therefore, the Court will deny
CPG’s motion to strike Plaintiffs’ class allegations due to any
purported ascertainability or choice of law issues inherent in
Plaintiffs’ proposed class definition without prejudice to
renewing these arguments at an appropriate time.
CONCLUSION
For the above reasons, the Court will grant in part and
deny in part CPG’s motion to dismiss. The Court will grant CPG’s
motion to the extent it seeks dismissal of Plaintiffs’ breach of
express warranty claim based on the Limited Warranty,
Plaintiffs’ negligent misrepresentation claim based on an
omission, and Plaintiffs’ NJCFA claim. Because the Court cannot
conclude that amendment would be futile, dismissal will be
without prejudice to Plaintiffs’ right to file an amended
pleading curing the identified deficiencies within twenty-one
(21) days. The Court will permit the following claims to proceed
27

at this time: Plaintiffs’ breach of express warranty claim based
on certain of Defendants’ marketing claims; Plaintiffs’
negligent misrepresentation claim based on certain of
Defendants’ marketing statements; and Plaintiffs’ claim for
declaratory relief. The Court will deny as premature CPG’s
motion to strike class allegations. An accompanying Order will
be entered.

August 26, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

28