DEFILLIPPO et al v. WHIRLPOOL CORPORATION

Filing 30

OPINION. Signed by Judge Noel L. Hillman on 8/30/2019. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JUSTIN DEFILLIPPO, DEREK
SCACHETTI, and TIMOTHY
BABBITT, on behalf of
themselves and all others
similarly situated,

1:18-cv-12523-NLH-AMD
OPINION

Plaintiffs,
v.
WHIRLPOOL CORPORATION,
Defendant.

APPEARANCES:
BRUCE HELLER NAGEL
RANDEE M. MATLOFF
NAGEL RICE, LLP
103 EISENHOWER PARKWAY
SUITE 201
ROSELAND, NJ 07068
JOSEPH LOPICCOLO
POULOS LOPICCOLO PC
1305 SOUTH ROLLER ROAD
OCEAN, NJ 07757
On behalf of Plaintiffs
LATHROP BARRERE NELSON, III
MONTGOMERY MCCRACKEN WALKER & RHOADS
LIBERTYVIEW, SUITE 600
457 HADDONFIELD ROAD
CHERRY HILL, NJ 08002
MEGAN B. TRESEDER
LOWENSTEIN SANDLER LLP
65 LIVINGSTON AVENUE
ROSELAND, NJ 07068
On behalf of Defendant

HILLMAN, District Judge
This putative class action concerns claims by Plaintiffs
and all similarly situated individuals arising out of allegedly
defective refrigerators manufactured by Defendant Whirlpool
Corporation.

Pending before the Court is the motion of

Defendant to dismiss Plaintiffs’ complaint.

For the reasons

expressed below, Defendant’s motion will be granted in part and
denied in part.
BACKGROUND 1
Plaintiffs, Justin DeFillippo, Derek Scachetti, and Timothy
Babbitt, on behalf of themselves and others who are similarly
situated, claim that Defendant, Whirlpool Corporation, has
violated the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1, et
seq. (“NJCFA”), the New Jersey Truth-in-Consumer Contract,
Warranty and Notice Act (“TCCWNA”), N.J.S.A. 56:12-14, et seq.,
New York’s General Business Law §§ 349 and 350, and the
Magnuson-Moss Act, 15 U.S.C. § 2301 et seq.

Plaintiffs also

assert claims against Whirlpool for common law fraud, breach of
implied and express warranties, and unjust enrichment.

1

Because Defendant has moved to dismiss pursuant to Fed. R. Civ.
P. 12(b)(6), the Court restates the facts alleged in Plaintiff’s
complaint, and accepts them as true for purposes of resolving
Defendant’s motion. Defendant also moved to dismiss certain
claims for lack of personal jurisdiction pursuant to Fed. R.
Civ. P. 12(b)(2) but has withdrawn that argument. (Docket No.
28.)
2

All these claims arise out of Whirlpool’s sale of French Door
Bottom Mount refrigerators.

Plaintiffs summarize their claims

as follows:
•

[U]nder various brand names such as Whirlpool,

KitchenAid and Maytag, [from 2012 to the present Whirlpool
sold French Door Bottom Mount (“FDBM”) refrigerators]
containing defects that cause the refrigerators to provide
insufficient cooling in the refrigerator and/or freezer of
the unit.

According to internal technical service pointers

(“TSP”) released by Whirlpool to its service providers, the
defect occurs due to impeded air flow in the freezer
compartment which is caused by frost on the freezer
evaporator. Corrosion then forms on the brass freezer
defrost thermistor impacting the thermistor performance
allowing ice to accumulate on the evaporator (the
“Defect”).
•

Whirlpool knew about the Defect as early as March 2014

when it issued a TSP to its Dealers.
details of the Defect.

The TSP provided

This TSP was distributed to dealers

but not the public.
•

Additional TSPs were released in June 2016 and then

again in September 2016, each one informing dealers, but
not the public, about the Defect, explaining the Defect

3

occurs due to “impeded air flow in the freezer compartment
[which is caused by] frost on the freezer evaporator.”
“Corrosion [then forms] on the brass freezer defrost
thermistor [impacting] the thermistor performance allowing
ice to accumulate on the evaporator.”
•

According to the TSPs, there is a way to remedy the

problem.

The TSPs instruct the service provider to

“[o]rder and install service kit Wl0902214 [which] includes
a plastic thermistor, foil and wire tie.”
•

Whirlpool knew, or was reckless in not knowing, at or

before the time it sold the first unit, that the Whirlpool
Refrigerators contained the Defect.

Whirlpool had sole and

exclusive possession of this knowledge.
•

Notwithstanding this knowledge, Whirlpool uniformly

concealed this material information in its marketing,
advertising, and sale of the Refrigerators, which Whirlpool
knew to be defective, both at the time of sale and on an
ongoing basis.
•

At all times, Whirlpool uniformly concealed the Defect

from Plaintiffs and all consumers of Whirlpool
refrigerators and failed to remove Plaintiffs’
refrigerators from the marketplace or take adequate
remedial action.

Instead, Whirlpool sold and serviced
4

Plaintiffs’ refrigerators even though it knew, or was
reckless in not knowing, that its refrigerators were
defective and would ultimately provide insufficient cooling
in the refrigerator and/or freezer of the units.
•

As a consequence of Whirlpool’s false and misleading

statements and active and ongoing concealment of the
Defect, Plaintiffs and the Class Members purchased and
currently own defective Refrigerators and have incurred
damages.
•

Moreover, in addition to affirmatively misleading the

Class Members, Whirlpool routinely declined to provide
Class Members warranty repairs or other remedies for the
Defect.
(Plaintiffs’ Second Amended Compl., Docket No. 17 at 1-2,
citations to exhibits omitted).
Plaintiffs’ complaint details each of the three Plaintiff’s
alleged experience with his FDBM refrigerator.

DeFillippo, a

citizen of New York, purchased a FDBM refrigerator in September
2015 for $3,000 and began experiencing the alleged defect within
one week.

DeFillippo contacted Whirlpool right away, and a

Whirlpool representative instructed him to unplug his
refrigerator and plug it back in.

That fixed the problem until

the improper cooling occurred again.
5

DeFillippo contacted

Whirlpool again, and because the defect does not cause a
“trouble shooting code” to appear, the Whirlpool representative
instructed him to unplug the refrigerator and plug it back in.
That temporary fix failed, and DeFillippo’s FDBM refrigerator
has experienced the defect numerous times over the course of 26
months.

DeFillippo now has to use a spare refrigerator.

(Docket No. 17 at 4-5.)
Scachetti, a citizen of New Jersey, purchased a home in
August 2017 that included a FDBM refrigerator manufactured in
2012.

On June 1, 2018, Scachetti’s FDBM refrigerator stopped

cooling properly, and he immediately contacted Whirlpool, which
sent a repair technician on June 4, 2018.

The Whirlpool

technician told Scachetti that based on the description of the
problem that he knew before even looking at the refrigerator
what the problem was and that Whirlpool knows about this defect.
The technician confirmed the EVAP was not working properly and
installed a new one.

Whirlpool charged Scachetti a $96.00

service call fee, but despite Scachetti’s demands, Whirlpool has
refused to reimburse him the $96.00 service call fee because the
refrigerator was outside its warranty period.

(Docket No. 17 at

5-6.)
Babbitt, a citizen of New Jersey, purchased a FDBM
refrigerator on January 21, 2013 for $2,342.00, along with a 5-

6

year extended warranty for $152.96 from Warrantech.

Within 10

months the FDBM refrigerator did not cool properly, and Babbitt
contacted Whirlpool immediately.

Babbitt was instructed to

unplug the refrigerator for a few hours and then replug it, but
because that would result in food spoilage, Babbitt insisted
that Whirlpool send a repair person.

On December 24, 2013, a

repair person from American Home Appliance Service noted that
the compressor was noisy and that Babbitt had attempted to
resolve the issue by defrosting the ice in the freezer.
The problem occurred again a year later.

By then, the

Whirlpool warranty had expired, and a repair person was sent
under Babbitt’s extended warranty.

On January 7, 2015, a repair

person changed the compressor, but in a few weeks, the
refrigerator stopped cooling properly.

On January 28, 2015,

another repair person again replaced the compressor and replaced
the evaporator coil.

In mid-October 2018, Babbitt’s FDBM

refrigerator stopped cooling sufficiently, and Whirlpool has
refused to repair the defect.

Babbitt had to purchase another

refrigerator to store his food.

(Docket No. 17 at 6-8.)

Whirlpool has moved to dismiss all the claims of each of
the Plaintiffs on various bases depending on the particular

7

claim and the plaintiff who asserts it. 2

Plaintiffs have

opposed Whirlpool’s motion.
DISCUSSION
A.

Subject Matter Jurisdiction

This Court has original subject matter jurisdiction under
the Class Action Fairness Act, 28 U.S.C. §§ l332(d) and (6)
because (i) the number of Class Members is 100 or more; (ii) the
Class Members’ damages, the aggregate amount in controversy
exclusive of interest and costs, exceeds $5,000,000; and (iii)
minimal diversity exists because at least one of the Class
Plaintiffs 3 and one Defendant 4 are citizens of different states.
This Court also has original subject matter jurisdiction over the
Class Plaintiffs’ federal statutory claim under the Magnuson-Moss
Warranty Act, 15 U.S.C. § 2301 et seq., and supplemental
jurisdiction over the remaining claims under 28 U.S.C. § 1367.
B.

Standard for Motion to Dismiss

When considering a motion to dismiss a complaint for

2

To its reply brief, Whirlpool attaches a detailed chart to
indicate which of its arguments correspond to which claims and
which plaintiff. (Docket No. 27-5.) It appears that the only
claim Whirlpool has not moved to dismiss is DeFillippo’s breach
of implied warranty claim. (Id.)
3

As noted above, DeFillippo is a citizen of New York, and
Scachetti and Babbitt are citizens of New Jersey.
4

Whirlpool is incorporated in Delaware and has its principal
place of business in Michigan.
8

failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).

It is well

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

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

“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do . . . .”

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,
47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,
40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)).
To determine the sufficiency of a complaint, a
court must take three steps.
First, the court must
“tak[e] note of the elements a plaintiff must plead to
state a claim.”
Second, the court should identify
allegations that, “because they are no more than
conclusions, are not entitled to the assumption of
truth.” Third, “whe[n] there are well-pleaded factual
allegations, a court should assume their veracity and

9

then determine whether they plausibly give rise to an
entitlement for relief.”
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (alterations
in original) (citations omitted) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 664, 675, 679 (2009)).
A district court, in weighing a motion to dismiss, asks
“not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claim.”
Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416
U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our
decision in Twombly expounded the pleading standard for ‘all
civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in
the coffin for the ‘no set of facts’ standard that applied to
federal complaints before Twombly.”).

“A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough
facts to state a claim to relief that is plausible on its
face.’”

Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).
A court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).

10

A court may consider,

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

Pension Benefit Guar. Corp.

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

If any other matters outside the pleadings are presented

to the court, and the court does not exclude those matters, a
Rule 12(b)(6) motion will be treated as a summary judgment
motion pursuant to Rule 56.
C.

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

Analysis
1.

Plaintiff’s consumer fraud claims

Plaintiffs have asserted claims under the New Jersey
Consumer Fraud Act and the New York General Business Law §§ 349
and 350, all of which concern deceptive business practices. 5

5

New Jersey is the “forum state” for the instant litigation, and
the Court “must apply the law of the forum state, including its
choice of law rules.” Harper v. LG Electronics USA, Inc., 595
F. Supp. 2d 486, 489 (D.N.J. 2009) (citations omitted). “‘Each
choice-of-law case presents its own unique combination of facts—
the parties' residence, the place and type of occurrence and the
specific set of governmental interest—that influence the
resolution of the choice-of-law issue presented.’” Harper v. LG
Electronics USA, Inc., 595 F. Supp. 2d 486, 490 (D.N.J. 2009)
(quoting Warriner v. Stanton, 475 F.3d 497, 500 (3d Cir. 2007)).
In a multistate class action, a choice of law analysis must be
conducted before the class is certified to determine which
state’s law should apply to the class. Argabright v. Rheem
Manufacturing Company, 201 F. Supp. 3d 578, 591 (D.N.J. 2016)
(citing In re LifeUSA Holding Inc., 242 F.3d 136, 147 n.11 (3d
Cir. 2001)). Here, Plaintiffs propose one nationwide class or
two subclasses, with one designated for New Jersey citizens and
the other for New York citizens. (Docket No. 17 at 24.) Until
the scope of the classes is resolved, the Court will assess
Plaintiffs’ allegations under both New Jersey and New York law
11

“The capacity to mislead is the prime ingredient of all types of
consumer fraud.”

Argabright v. Rheem Manufacturing Company, 201

F. Supp. 3d 578, 605–06 (D.N.J. 2016) (quotations and citations
omitted)

(discussing the NYGBL § 349 and NJCFA).

“False

promises, misrepresentations, and concealment or omission of
material facts all constitute deceptive practices under these
statutes.”

Id. (citations omitted).

“A successful GBL § 349 claim requires that a plaintiff
prove, by a preponderance of the evidence, that (1) the
defendant has engaged in an act or practice that is deceptive or
misleading in a material way; (2) the plaintiff has been injured
by reason thereof; and (3) the deceptive act or practice is
consumer oriented.”

Koch v. Greenberg, 14 F. Supp. 3d 247, 261

(S.D.N.Y. 2014) (quoting Gaidon v. Guardian Life Ins. Co. of
Am., 94 N.Y.2d 330, 343–44, 704 N.Y.S.2d 177, 725 N.E.2d 598
(Ct. App. 1999)) (quotations and citations omitted).

“In

contrast to private contract disputes, unique to the parties,
consumer-oriented conduct within the meaning of the statute
requires acts or practices that have a broader impact on
consumers at large.”

Id. (citation omitted).

“Consumer-

oriented conduct does not require a repetition or pattern of

as appropriate. See id. (explaining that in a putative
nationwide class action concerning the NJCFA and NYGBL, among
other laws, the choice of law analysis is better left to a
future stage of the case).
12

deceptive behavior,” and as long as conduct was aimed at the
public at large, it is immaterial that the defendant may not
have “committed the complained-of acts repeatedly—either to the
same plaintiff or to other consumers.”

Id. (citation omitted).

Where the “acts complained of potentially affect similarly
situated consumers, the consumer-oriented prong will be met.”
Id. (quotations and citations omitted).
GBL § 350 prohibits false advertising and has the same
elements as § 349, except for the requirement that the
Defendant’s advertisement “(1) had an impact on consumers at
large, (2) was deceptive or misleading in a material way, and
(3) resulted in injury.”

Koch v. Greenberg, 14 F. Supp. 3d 247,

261 (S.D.N.Y. 2014) (citation omitted).
The NJCFA was passed to address “sharp practices and
dealings in the marketing of merchandise and real estate whereby
the consumer could be victimized by being lured into a purchase
through fraudulent, deceptive or other similar kind of selling
or advertising practices.”

Chaudhri v. Lumileds LLC, 2018 WL

6322623, at *6 (D.N.J. 2018) (quoting Daaleman v. Elizabethtown
Gas Co., 77 N.J. 267, 271 (1978)).

As “remedial legislation,”

the NJCFA “should be construed liberally.”

Id. (quoting Int’l

Union of Operating Engineers Local No. 68 Welfare Fund v. Merck
& Co., 192 N.J. 372, 377 n.1 (2007)).

To establish a prima

facie case under the NJCFA, “a plaintiff must allege (1)
13

unlawful conduct by the defendant, (2) an ascertainable loss by
plaintiff; and (3) a causal connection between the defendant’s
unlawful practice and the plaintiff’s ascertainable loss.”
Angelo v. Fidelity & Guaranty Life Insurance Company, 2019 WL
330521, at *5 (D.N.J. 2019) (quoting MZL Capital Holdings, Inc.
v. TD Bank, N.A., 734 F. App’x 101, 104 (3d Cir. 2018) (citing
Zaman v. Felton, 98 A.3d 503, 516 (N.J. 2014)).
Unlawful conduct falls into three general categories:
affirmative acts, knowing omissions, and violation of
regulations.

Chaudhri, 2018 WL 6322623 at *6 (citing N.J.S.A.

56:8-2, 56:8-4).

An affirmative misrepresentation under the

NJCFA 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.”

Id.

(citation omitted).

“Unlike common

law fraud, the NJCFA does not require proof of reliance.”

Id.

(quoting Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 606 (3d
Cir. 2012)).

Additionally, “[w]hen the alleged consumer-fraud

violation consists of an affirmative act, intent is not an
essential element and the plaintiff need not prove that the
defendant intended to commit an unlawful act.”

Cox v. Sears

Roebuck & Co., 647 A.2d 454, 462 (N.J. 1994).
A plaintiff asserting a claim based on an omission must
demonstrate that the defendant “‘(1) knowingly concealed (2) a
material fact (3) with the intention that plaintiff rely upon
14

the concealment.’”

Galo Coba, v. Ford Motor Company, 932 F.3d

114, 124 (3d Cir. 2019) (quoting Judge v. Blackfin Yacht Corp.,
815 A.2d 537, 541 (N.J. Super. Ct. App. Div. 2003)) (citing
N.J.S.A. 56:8-2).

“Where a plaintiff's theory is based on a

knowing omission, the plaintiff must show that the defendant
acted with knowledge, and intent is an essential element of the
fraud.”

Cameron v. South Jersey Pubs, Inc., --- A.3d ---, 2019

WL 3022352, at *10 (N.J. Super. Ct. Appl Div. July 11, 2019)
(citations omitted).
Whirlpool argues that Plaintiffs have not asserted any
facts to support their claims that Whirlpool knew of the alleged
defect before it sold the refrigerators to Plaintiffs or that it
intentionally failed to disclose the alleged defect to the
public.

Whirlpool also argues that Plaintiffs’ reliance on

certain TSPs fails because they were issued after Scachetti and
Babbitt bought their FDBM refrigerators, and the other TSP that
pre-dates all three Plaintiffs’ purchases does not reference
Plaintiffs’ FDBM refrigerator model numbers.

Whirlpool contends

that they cannot be used to support a claim as to what Whirlpool
knew before it sold the refrigerators to Plaintiffs.

Whirlpool

further argues that Plaintiffs have not alleged any facts
regarding their reliance on Whirlpool’s representations
regarding the refrigerators, or that Whirlpool had a duty to
disclose the alleged defect to customers.
15

Whirlpool also argues

that because Scachetti’s alleged defect manifested outside of
the warranty period, his NJCFA claim fails.
Whirlpool’s arguments are not persuasive at the motion to
dismiss stage.

Plaintiffs allege an “affirmative act” claim as

follows: (1) Whirlpool knew of the alleged defect since at least
March 2014 but it still advertised its FDBM refrigerators as
“top-of-the-line” without any such defect; (2) Plaintiffs
purchased the allegedly defective refrigerators without being
aware of the problem and have suffered financial losses because
of the defect; and (3) Whirlpool’s affirmative misrepresentation
about the defect caused Plaintiffs’ losses.
Plaintiffs also allege a “knowing omission” claim as
follows: (1) Whirlpool knew of the alleged defect since at least
March 2014 but knowingly and intentionally concealed it from the
public; (2) the alleged defect was material to Plaintiffs’
decision to purchase Whirlpool’s FDBM refrigerator; 6 and (3)

6

Whirlpool argues that Scachetti cannot assert any fraud-based
claims because he did not purchase his FDBM refrigerator
himself, but instead acquired it when it was already in the home
he purchased, and he therefore cannot, and does not, plead that
he relied upon any statements by Whirlpool in buying his
refrigerator. There are two flaws with this argument. First,
only Scachetti’s “knowing omission” claim requires intent and
reliance, and not his “affirmative act” claim. Second, simply
because Scachetti did not purchase the refrigerator brand new
does not mean that when he bought it second-hand as part of the
purchase of his home the value of the “Gold Series” FDBM
refrigerator was not a consideration in the transaction.
Whirlpool’s argument as to Scachetti’s fraud claims that require
reliance are best resolved after discovery.
16

Whirlpool intended to conceal the alleged defect from its
customers so that they would purchase Whirlpool’s refrigerators.
Plaintiffs’ allegations, when accepted as true, readily
satisfy the required pleading standards for their and NJCFA and
NYGBL §§ 349 and 350 claims. 7

Plaintiffs have related their own

experiences with the alleged defect in their FDBM refrigerators,
and they have provided numerous examples of other customers who
have suffered the same problems.

Plaintiffs have obtained some

direct proof issued by Whirlpool to dealers and service
providers regarding the alleged defect.

Whirlpool challenges

the three TSPs that Plaintiffs cite to in their complaint to
support their claims that Whirlpool had knowledge of the alleged
defect – beyond oral representations made by dealers and service
providers to Plaintiffs and others - but Plaintiffs cannot be
faulted for not having access to more of Whirlpool’s internal
documents, especially considering that the relevant documents
may, if Plaintiffs’ claims are true, reveal Whirlpool’s fraud.
See Rabinowitz v. American Water Resources, LLC, 2019 WL
1324492, at *7 (D.N.J. 2019) (denying a motion to dismiss a

7

Claims under NYGBL §§ 349 and 350 are not subject to the
pleading-with-particularity requirements of Rule 9(b), Greene v.
Gerber Products Co., 262 F. Supp. 3d 38, 67 (E.D.N.Y. 2017), but
the heightened pleading standard set forth in Rule 9(b) applies
to NJCFA claims, In Re Insulin Pricing Litigation, 2019 WL
643709, at *14 (D.N.J. 2019) (citing Dewey v. Volkswagen, 558 F.
Supp. 2d 505, 524 (D.N.J. 2008)). Plaintiffs’ allegations meet
both the Rule 8(a) and Rule 9(b) standards.
17

plaintiff’s putative consumer fraud class action and questioning
what more the plaintiff could allege in that stage of the case
other than citing to a “smoking gun” admission on the part of
the defendant); Burroughs v. PHH Mortgage Corporation, 2016 WL
1389934 at *4 (D.N.J. 2016) (“The party who has defrauded
another cannot use the success of that fraud as a sword to
defeat the victim's claims against it.”); Rowen Petroleum
Properties, LLC v. Hollywood Tanning Systems, Inc., 2009 WL
1085737 at *6 (D.N.J. 2009) (“[T]he failure of plaintiff to be
more specific with regard to the defendants' individual conduct
is not fatal to the claims at this motion to dismiss stage,
since it is only the defendants themselves who possess the
knowledge of the alleged bait and switch.”); Craftmatic
Securities Litigation v. Kraftsow, 890 F.2d 628, 645 (3d Cir.
1989) (“Particularly in cases of corporate fraud, plaintiffs
cannot be expected to have personal knowledge of the details of
corporate internal affairs.

Thus, courts have relaxed the rule

when factual information is peculiarly within the defendant's
knowledge or control.”); Shapiro v. UJB Financial Corp., 964
F.2d 272, 284 (3d Cir. 1992) (explaining that Rule 9(b) has
stringent pleading requirements, but “the courts should be
‘sensitive’ to the fact that application of the Rule prior to
discovery ‘may permit sophisticated defrauders to successfully
conceal the details of their fraud’” (citation omitted)).
18

The TSPs provided by Plaintiffs show that Whirlpool had
knowledge of cooling issues with certain FDBM refrigerator
models, and this provides a factual predicate to Plaintiffs’
consumer fraud claims regarding Whirlpool’s knowledge of the
defect as alleged by Plaintiffs.

The TSPs, as well as

Plaintiffs’ other averments, are more than sufficient to survive
Whirlpools’ motion to dismiss Plaintiffs’ NJCFA and GBL claims. 8
With regard to Whirlpool’s argument that because
Scachetti’s alleged defect manifested outside of the warranty
period, his NJCFA claim fails, the Court does not agree.

8

To

Just as Plaintiffs’ NJCFA and NY GBL claims may proceed so too
will their TCCWNA and common law fraud claims. See Dugan v. TGI
Fridays, Inc., 171 A.3d 620, 647 (N.J. 2017) (citing N.J.S.A.
56:12–15) (explaining that in order to be found liable under the
TCCWNA, a defendant must have violated a “clearly established
legal right,” such as the NJCFA); Bosland v. Warnock Dodge,
Inc., 933 A.2d 942, 949 (N.J. Super. Ct. App. Div. 2007) (“[A]
consumer contract that violates a clearly established legal
right under the CFA regulations is also a violation of the
TCCWNA.”); New Jersey Economic Development Authority v. Pavonia
Restaurant, Inc., 725 A.2d 1133, 1139 (N.J. Super. Ct. App. Div.
1998) (“Legal fraud consists of five elements: (1) a material
representation by the defendant of a presently existing or past
fact; (2) knowledge or belief by the defendant of that
representation's falsity; (3) an intent that the plaintiff rely
thereon; (4) reasonable reliance by the plaintiff on the
representation; and (5) resulting damage to the plaintiff. . . .
. Deliberate suppression of a material fact that should be
disclosed is equivalent to a material misrepresentation (i.e.,
an affirmative false statement). In other words, silence, in
the face of a duty to disclose, may be a fraudulent
concealment.” (citations, quotations and alterations omitted));
Kuzian v. Electrolux Home Products, Inc., 937 F. Supp. 2d 599,
614 (D.N.J. 2013) (finding that for the same reasons as the
plaintiffs’ CFA claims, the plaintiffs’ common law fraud claims
could proceed).
19

support its argument, Whirlpool cites to Mickens v. Ford Motor
Co., 900 F. Supp. 2d 427, 443 (D.N.J. 2012), which stated that
the failure of a manufacturer or seller to advise a purchaser
that a part that may break down or require repair after the
expiration of the warranty period cannot constitute a violation
of the CFA.

While that is a true statement of the law the

Mickens court also stated, “That principle, however, is not
without limits.

The plaintiff may nevertheless state a claim by

alleging that [1] the purported defect manifested itself within
the warranty period and [2] that the manufacturer knew the
product would fail.”

Id.

Whirlpool argues that Scachetti

cannot establish both requirements, and therefore his NJCFA
claim fails as a matter of law.
In Mickens, the defect manifested in the warranty period,
and the Court therefore did not need to consider the issue
further.

In its analysis, Mickens cited to Maniscalco v.

Brother Int'l Corp. (USA), 627 F. Supp. 2d 494, 501 (D.N.J.
2009), which in turn cited to Perkins v. DaimlerChrysler Corp.,
890 A.2d 997, 1004 (N.J. Super. Ct. App. Div. 2006).

The

Maniscalo court explained that New Jersey allows a NJCFA defense
in circumstances where a warranty exists and the product
performs beyond that warranty period.

As explained by the

Maniscalo court, Perkins concerned a purchaser of a Jeep who
alleged a violation of the CFA “because defendant did not reveal
20

that the vehicle was manufactured with a tubular exhaust
manifold allegedly susceptible to cracking and premature
failing, and unlikely to last for 250,000 miles, which,
plaintiff claims without support, is the industry standard for
such a part.

Maniscalo, 627 F. Supp. 2d at 501.

The Perkins

court found the “failure of a manufacturer or seller to advise a
purchaser that a part may breakdown or require repair after the
expiration of the warranty period cannot constitute a violation
of the CFA,” and “to interpret the CFA, beyond its present
scope, to cover claims that the component part of a product,
which has lasted through the warranty period, may eventually
fail, would be tantamount to rewriting that part of contract
which defined the length and scope of the warranty period . . .
[which] would also have a tendency to extend those warranty
programs for the entire life of the vehicle . . . .”

Perkins,

890 A.2d at 1004.
The court in Maniscalo found, “Simply put, Perkins stands
for the proposition that merely alleging that the warranty is
shorter than the industry standard useful life of the product
does not state a claim under the CFA.”
2d at 501.

Maniscalo, 627 F. Supp.

The court then distinguished the case before it from

Perkins:
In Perkins the allegedly substandard car part never
actually failed, while in the present case Plaintiffs
allege that their products did suffer the defect. Further,
21

in Perkins plaintiff did not allege that the defendant knew
that its specific product contained a defect that would
cause it to fail before that product's expected useful
life. Instead, the plaintiff in Perkins alleged only that
the product contained an allegedly substandard part which
may, but did not, cause the product to fail before the
industry lifetime standard. Although a manufacturer or
seller need not warrant that its product will survive for
the useful life of the product, the present case is
different because it deals with BIC's expectations of its
own product. Indeed, Plaintiffs allege that BIC knew of
the ME41 [all-in-one printer] defect by 2001, knew that its
product should last 5 years or 50,000 pages, limited the
warranty coverage so that the MFC machines would last
longer than the warranty period but that the machine head
would not last as long as the product's expected useful
life, and unconscionably marketed the product to uninformed
consumers in order to maximize profits. These allegations
taken as a whole are sufficient to constitute an unlawful
act under the CFA.
Id. at 501-02 (internal citations omitted).

The court further

found:
In New Jersey, broad CFA protection was envisioned by the
legislature and has been recognized by the Supreme Court of
New Jersey. If the New Jersey Supreme Court were faced
with a situation where a manufacturer or seller of a
product knew that its product had a defect which would
cause it to fail before its expected useful life, and
intentionally concealed that information from a purchaser,
with the purpose of maximizing profit, I predict that the
New Jersey Supreme Court would not be willing to find, as a
matter of law, that the CFA was categorically inapplicable.
Therefore, this Court will not extend the holding in
Perkins to cover the very different factual scenario in the
present case.
Id.
This Court agrees with the reasoning of Maniscalo, which
presented claims similar to the ones in this case.

The Court

does not find that the law precludes NJCFA claims in all

22

situations when a defect manifests after the expiration of a
warranty.

Accordingly, under the allegations lodged in this

case, where Scachetti has paid for repairs due to the alleged
defect which existed at the time it was sold to the original
buyer, still existed when Scachetti took possession of the
refrigerator, and which was allegedly known to Whirlpool,
Scachetti’s NJCFA claim is not barred simply because the defect
manifested itself after the expiration of the one-year warranty
period.
2.

Plaintiffs’ warranty claims

Whirlpool’s FDBM refrigerators came with a one-year
warranty from date of purchase against defects “in material and
workmanship under normal household use,” and Whirlpool will “pay
for Factory Specified Parts and repair labor to correct defects
in materials or workmanship that existed when this major
appliance was purchased.”

(Docket No. 17 at 29.)

Plaintiffs assert three types of warranty claims against
Whirlpool.

First, Plaintiffs allege that Whirlpool breached the

express warranty when it was notified of the defects within the
warranty period and Whirlpool failed to cure the defects.
Second, Plaintiffs allege that the express warranty is
commercially unconscionable because Whirlpool knew that
customers would not likely discover the reason their FDBM
refrigerators were not cooling sufficiently until after the one23

year warranty period expired.

Third, Plaintiffs claim that

Whirlpool made numerous implied warranties regarding the
merchantable quality of the FDBM refrigerators – i.e., that they
would be able to keep food and drink sufficiently cool in the
refrigerator and frozen in the freezer – but Whirlpool breached
the implied warranty of fitness for its particular purpose.
Based on the same allegations, Plaintiffs have asserted a
Magnuson-Moss Warranty Act claim.
Related to these claims is Plaintiffs’ claim for equitable
tolling of the statute of limitations.

Plaintiffs claim that

Whirlpool’s active and knowing concealment of the alleged defect
since 2014 tolls any statute of limitations because Plaintiffs
were unaware of the true reasons for the malfunctioning
refrigerators until just before they filed their complaint.
Whirlpool attacks Plaintiffs’ warranty claims individually.
Whirlpool argues:

Scachetti’s defect did not manifest until

after the express warranty expired; Scachetti’s unconscionable
warranty claim is conclusory and does not sufficiently allege
that the warranty is unfair; Scachetti’s refrigerator worked for
6 years before it needed a repair so it was therefore fit for
its intended purpose; and Babbitt’s express and implied
warranties are time-barred, and the equitable tolling claim is

24

insufficiently pleaded to save his claims. 9
A close review of Plaintiffs’ warranty claims demonstrates
that their express and implied warranty claims are viable for
each Plaintiff at this stage in the case, but not Plaintiffs’
unconscionability claim.
a.

Unconscionability

Beginning with Plaintiff’s claim that the express warranty
is unconscionable, the case Argabright v. Rheem Manufacturing
Company, 201 F. Supp. 3d 578, 595-98 (D.N.J. 2016) is directly
on point.

In that case, the plaintiffs alleged that defendant

knew the copper evaporator coils in its HVAC units would
prematurely corrode and leak refrigerant, causing the HVAC units
to be unable to produce cold air.

Among other warranty claims,

the plaintiffs claimed that the warranty was substantively
unconscionable because the defendant knew the HVACs were
defective when they sold them and manipulated the terms of the

9

Whirlpool also argues that all the Plaintiffs’ warranty claims
should be dismissed because Plaintiffs’ claims are premised on a
design defect and not on what the warranty covers - defects in
materials or workmanship. The Court agrees to the extent that
the complaint references alleged design defects in relation to
the warranty claims, but notes that Plaintiffs claim that
Whirlpool “failed to adequately design, manufacture, and/or test
the Refrigerators to ensure that they were free from the Defect,
and/or knew, had reason to know, or was reckless in not knowing
of the Defect when it uniformly warranted, advertised, marketed,
and sold the Refrigerators to Plaintiffs and the Class.”
(Docket No. 17. at 20.) Thus, Plaintiffs’ warranty claims do
not solely encompass their allegations about a design defect.
25

warranty to avoid repair costs.

Plaintiff pointed to the fact

that they submitted claims under their warranty, numerous
consumers has posted in a public online forum about the failure
of the defendant’s evaporator coils, and the defendant later
switched to corrosion-resistant aluminum.
The court dismissed the plaintiffs’ unconscionability
claim.

The Argabright court explained,

It is well-settled that courts may refuse to enforce
contracts that are unconscionable or violate public policy.
In consumer goods transactions such as those involved in
this case, unconscionability must be equated with the
concepts of deception, fraud, false pretense,
misrepresentation, concealment and the like, which are
stamped unlawful under N.J.S.A. 56:8–2. A “simple breach
of warranty or breach of contract is not per se unfair or
unconscionable.”
Unconscionability may be either substantive or procedural.
New Jersey courts may find a contract term substantively
unconscionable if it is excessively disproportionate and
involves an exchange of obligations so one-sided as to
shock the court’s conscience. Procedural unconscionability
refers to unfairness in the formation of the contract, and
may be shown by a variety of inadequacies, such as age,
literacy, lack of sophistication, hidden or unduly complex
contract terms, bargaining tactics, and the particular
setting existing during the contract formation process.
Argabright, 201 F. Supp. 3d at 595 (quotations and citations
omitted).

Discussing other cases that had come to the same

result, the court explained:
The plaintiffs in the above cases raised claims of
substantive unconscionability, alleging that defendant knew
of the defect at the time they issued the warranty; knew
when the defect would manifest; and “manipulated” the
warranty’s time period so as to avoid liability. Such
conduct, the courts held, did not make a warranty
26

substantively unconscionable. As one court explained, this
is because a manufacturer must predict rates of failure of
particular parts in order to price warranties, and a rule
that would make failure of a part actionable based on such
“knowledge” would render meaningless the limitations built
into a warranty’s coverage. Although in the above cases,
the product defects occurred after the expiration of the
warranty period in the above cases, the reasoning applies
with equal force here. Plaintiffs’ allegation that
Defendant knew of a latent defect at the time it issued its
Warranty, even if true, does not render the warranty
unconscionable. As a manufacturer, Defendant is within its
right to create a limited remedy that minimizes its costs
and obligations based on its prediction of the rate of
failure of particular parts.
Argabright, 201 F. Supp. 3d at 597 (quotations, citations, and
alterations omitted). 10

The court further noted, “The rule,

admittedly, is severe, and grants little favor to consumers, but
demonstrates the high standard that must be met for a contract
to be ruled ‘substantively unconscionable.’”

Id. at 297 n.10

(citing Dalton v. Gen. Motors Corp., No. 05–727, 2005 WL
2654071, at *8 (D.N.J. Oct. 17, 2005) (“‘[A] contract or
contract provision is not invariably substantively
unconscionable simply because it is foolish for one party and
very advantageous to the other. . . .

10

Instead, a term is

In addition to contending that the warranty was substantively
unconscionable, the plaintiffs also argued that the warranty was
procedurally unconscionable. The court rejected that argument,
finding that “[o]f course, there is a disparity in bargaining
power in nearly all consumer contracts executed between a
purchaser and a manufacturer, and Plaintiffs' conclusory
assertion is by itself insufficient to render a contract
unconscionable.” Id. at 596. Plaintiffs here make a similar
argument, and this Court rejects it for the same reason as the
Court in Argabright.
27

substantively unreasonable where the inequity of the term is so
extreme as to shock the conscience.’”).
Plaintiffs’ unconscionability claim here is identical to
the one in Argabright and the cases cited in Argabright.

This

Court adopts the reasoning of those cases, which compels the
dismissal of Plaintiffs’ claim that the one-year warranty
provided by Whirlpool for the FDBM refrigerators “shocks the
conscious.”

The Court has already determined that Plaintiffs

have adequately pleaded fraud claims based on their allegations
that Whirlpool knew of the defect and failed to disclose it to
the public, and that Whirlpool lulled owners of the FDBM
refrigerators with temporary fixes until the warranty period
expired.

Those fraud claims, and not a claim for an

unconscionable warranty, is the proper path for prosecuting
those allegations.
b.

Express warranty

For Plaintiffs’ breach of express warranty claim,
to state a claim for breach of express warranty under New Jersey
law, Plaintiffs 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.

Argabright, 201 F. Supp. 3d at 592 (citation
28

omitted).

“[G]enerally, latent defects discovered after the

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

Kuzian v. Electrolux Home

Products, Inc., 937 F. Supp. 2d 599, 611 (D.N.J. 2013). 11
Under the New Jersey Uniform Commercial Code, any action
for breach of contract for sale “must be commenced within four
years after the cause of action has accrued.”

N.J.S.A. 12A:2–

725(1), and “[a] cause of action accrues when the breach occurs,
regardless of the aggrieved party’s lack of knowledge of the
breach,” and “[a] breach of warranty occurs when tender of

11

In their brief, Plaintiffs raise the argument that the express
warranty fails for its essential purpose. Under the UCC, a
court may set aside an exclusive repair or replace remedy if it
is shown that such remedy has failed of its essential purpose.
N.J.S.A. 12A:2–719(2) (“Where circumstances cause an exclusive
or limited remedy to fail of its essential purpose, remedy may
be had as provided in this Act.”). A repair or replace remedy
fails of its essential purpose where the manufacturer is unable
to repair the defect within a reasonable time. In re
Caterpillar, Inc., C13 and C15 Engine Products Liability
Litigation, 2015 WL 4591236, at *23 (D.N.J. 2015). Whether a
limited warranty has failed its essential purpose is a question
of fact for the jury. Id. (citation omitted). A “failure of
essential purpose” is not a breach of contract theory, but
rather a doctrine by which courts set aside a limited remedy and
permit alternative recovery. Id. (citation omitted). The
overall theme of Plaintiffs’ claims is that Whirlpool’s repair
or replace remedy fails to correct the defect, and such a claim
could be viable, but Plaintiffs do not specifically plead that
the express warranty failed in its essential purpose. Cf.
Argabright, 201 F. Supp. 3d at 594 (“Had Defendant refused to
repair or replace the nonworking coils, or had Defendant’s
replacement parts failed to function, saddling Plaintiffs with
non-working units still under warranty, Plaintiffs would have a
fair claim that the remedy contemplated under the Warranty
failed of its essential purpose.”).
29

delivery is made,” N.J.S.A. 12A:2–725(2).
An exception to this rule is when a warranty of “future
performance” is involved.

Under New Jersey law, a warranty “to

repair any product defect that occurs during a warranty period”
constitutes a warranty of “future performance,” and a cause of
action therefore does not accrue until the breach is or should
have been discovered.

Argabright, 201 F. Supp. 3d at 600

(citing N.J.S.A. 12A:2–725(2) (“A breach of warranty occurs when
tender of delivery is made, except that where a warranty
explicitly extends to future performance of the goods and
discovery of the breach must await the time of such performance
the cause of action accrues when the breach is or should have
been discovered.”) (other citations omitted).
DeFillippo’s and Babbitt’s breach of the express warranty
claims may proceed.

DeFillippo alleges he experienced the

defect within one week of taking possession of his refrigerator,
and Babbitt alleges he experienced the defect within ten months
of receiving his refrigerator.

Both Plaintiffs allege that

during the one-year warranty period, Whirlpool failed to “pay
for Factory Specific Parts and repair labor to correct defects”
that existed when they purchased the refrigerators.

These

claims adequately state a claim for breach of the express

30

warranty. 12

See, e.g., Kuzian, 937 F. Supp. 2d at 612

(“Plaintiffs are not contending that a known or unknown latent
defect manifested after the express warranty period, but rather
that Electrolux's express warranty warranted, for one year, its
affirmation and description of the ice makers’ performance.
When the ice makers began to fail during that first year,
plaintiffs contend that Electrolux breached its warranty that
the ice makers would perform as promised.

These claims may

proceed.”); id. at n.10 (“Electrolux argues that because
Kuzian's ice maker was repaired and then at some point past the
one-year mark stopped working again, that allegation
demonstrates that Electrolux honored its warranty by making his
ice maker operational.

The Court does not construe Kuzian's

claim so narrowly at this motion to dismiss stage.”).
Scachetti’s breach of express warranty fails, however,
because the one-year warranty for his 2012 FDBM refrigerator
expired in 2013, but Scachetti did not take possession of the
refrigerator until August 2017, and he did not experience the
alleged defect until June 2018.
With regard to Babbitt’s breach of express warranty claim,

12

As noted, DeFillippo is a citizen of New York. The parties
have applied only New Jersey law to the assessment of all three
of Plaintiffs’ warranty claims. Defendants have not argued that
if New York law were applied to DeFillippo’s warranty claims the
result would be different.
31

Whirlpool argues that even though the alleged defect manifested
within the one-year warranty period, his claim is time barred
under the four-year statute of limitations.

Whirlpool points

out that Babbitt did not join this suit until December 2018,
which is more than four years from when he discovered the
alleged defect (approximately October 2013), or when the oneyear warranty expired (February 26, 2014).
Babbitt argues that his refrigerator was still under
warranty at the time he joined the action because of the
extended warranty he purchased, and the four-year statute of
limitations did not start to run until the expiration of that
warranty.

Additionally, Babbitt argues that the statute of

limitations should be equitably tolled due to Whirlpool’s
ineffective repairs which lulled him into the belief that the
defect had been corrected as promised under the original oneyear warranty and that it was not until mid-October 2018 that he
realized Whirlpool was not going to live up to its promise.
The Court rejects Babbitt’s first argument regarding the
extended warranty because that warranty was issued by an entity
other than Whirlpool, and therefore provides a separate and
supplemental obligation not attributable to Whirlpool.

The

Court, however, finds that Babbitt’s claim for equitable tolling
to be sufficiently pleaded to permit his express warranty claim
to proceed.
32

Equitable tolling “applies where defendant's fraudulent
conduct results in Plaintiff's lack of knowledge of a cause of
action,” and the essence of equitable tolling “is not whether
[the p]laintiff was in possession of all the information
necessary to prevail on [her] claims, but whether plaintiff had
enough information to commence a lawsuit.”

Argabright, 258 F.

Supp. 3d at, 485 (quotations and citations omitted).

Under the

doctrine, “the statute of limitations will be tolled if the
plaintiff pleads, with particularity, the following three
elements: (1) wrongful concealment by the defendant, (2) which
prevented the plaintiff's discovery of the nature of the claim
within the limitations period, and (3) due diligence in pursuing
discovery of the claim.”

Id.

As related above, Babbitt purchased a FDBM refrigerator on
January 21, 2013, and within 10 months it stopped cooling
properly.

Babbitt contacted Whirlpool immediately and Whirlpool

instructed Babbitt to unplug the refrigerator for a few hours
and then replug it.

The problem occurred again a year later,

but by then, the Whirlpool warranty had expired.

On January 7,

2015, a repair person changed the compressor, but in a few
weeks, the refrigerator stopped cooling properly; on January 28,
2015, another repair person again replaced the compressor and
replaced the evaporator coil.

By mid-October 2018, the alleged

defect that manifested during the one-year warranty period
33

happened again, and because Whirlpool has refused to repair the
defect, Babbitt had to purchase another refrigerator to store
his food.

Babbitt joined this action less than two months

later.
Under these circumstances, and at this stage in the case,
the Court finds that Whirlpool’s alleged lulling behavior and
refusal to “pay for Factory Specific Parts and repair labor to
correct defects” that existed when Babbitt purchased the
refrigerator, as well as Babbitt’s diligence in pursuing legal
action after five years of unsuccessful repairs and the need to
purchase a second refrigerator to keep his food and drinks at
the proper temperature, warrant the equitable tolling of the
statute of limitations.

See e.g., Argabright, 258 F. Supp. 3d

at 470 (“In an abundance of caution, the Court will decline to
dismiss Fecht's claim for breach of the implied warranty as
time-barred at this early stage of the proceedings.

Defendant

will, of course, be free to argue that the factual
circumstances, as developed in the eventual course of these
proceedings, do not support the application of equitable
tolling, and the Court will duly consider the record at that
time.”) (discussing Statler v. Dell, Inc., 775 F. Supp. 2d 474,
483 (E.D.N.Y. 2011) (“[T]he court is in no position, at this
stage of the proceedings, to make factual findings with respect
to Dell's conduct.

Discovery will uncover facts regarding
34

Dell's conduct, as well as those that may ultimately support the
conclusion that Plaintiff possessed more than enough information
to commence a timely lawsuit.

Such a conclusion cannot be

reached, however, only upon consideration of the pleadings and
other documents before the court on this motion.

Accordingly,

the court will not rule, at this time, whether equitable
principles can toll the running of the statute of limitations,
or estop Defendant from asserting a statute of limitations
defense.

The court therefore denies the motion to dismiss the

warranty claims at this time.

Such claims may or may not be

saved by equitable tolling; it is simply too early to tell.”; BK
Trucking Co. v. Paccar, Inc., 2016 WL 3566723, at *5 (D.N.J.
2016) (“The Complaint clearly alleges that, as a result of the
alleged defect with the ATS, Plaintiffs were required to bring
their vehicles to authorized repair facilities.

During these

repair attempts, it is alleged, Defendants represented to
Plaintiffs that each instance of repair or replacement would
correct the defect, despite knowing that it would not, and could
not, do so.

When exactly Plaintiffs should have learned that

the alleged problems with the ATS were not just isolated
incidents but, instead, a systemic defect, may well have been
beyond the one-year mark for bringing suit.

Because the

Complaint does not reveal when the limitations period began to
run, the statute of limitations cannot justify dismissal under
35

Rule 12(b)(6).”); In re FieldTurf Artificial Turf Marketing and
Sales Practices Litigation, 2018 WL 4188459, at *19 (D.N.J.
2018) (finding that the plaintiffs adequately pleaded the
equitable tolling of the statute of limitations based on
FieldTurf’s fraudulent concealment and “deny-and-delay” scheme,
and “at this juncture, the Court declines to bar Levittown from
bringing an express warranty claim based on an alleged future
performance warranty created by FieldTurf’s oral
misrepresentations, as Plaintiffs assert fraud claims
challenging the underlying warranties and have asserted warranty
claims in the alternative).
c. Implied Warranty
Plaintiffs’ claims for breach of an implied warranty of
merchantability and fit for intended purpose results in the same
determination – DeFillippo and Babbitts’ claims may proceed, but
Scachetti’s fails.

New Jersey law provides that merchantable

goods must be fit for the ordinary purposes for which such goods
are used.

N.J.S.A. 12A:2–314.

New Jersey law also provides,

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

36

N.J.S.A. 12A:2–314.

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

Kuzian, 937 F. Supp. 2d at 612 (quotations

and citations omitted).
In order to establish a breach of either warranty, a
plaintiff “must show that the equipment they purchased from
defendant was defective.”

Id.

“[E]stablishing a breach of the

implied warranties of merchantability and fitness for a
particular purpose requires a showing regarding the product’s
functionality, not the advertisements that allegedly induced a
customer to purchase it.”

Id. at 612-13.

“A cause of action

for breach of implied warranty accrues when delivery of the
product is made, regardless of the purchaser’s lack of
knowledge,” unless equitable tolling applies.

Argabright, 201

F. Supp. 3d at 600.
Plaintiffs claim that they endeavored to purchase a
refrigerator that remained at the proper temperature to
appropriately store food and drink, and the Whirlpool FDBM
refrigerators they purchased failed in this essential purpose
because of the alleged defect.

This breach of the implied

warranty claim is adequately pleaded.

It is timely brought by

DeFillippo, and at this stage, equitable tolling permits
Babbitt’s claim to proceed.

For both DeFillippo and Babbitt,

the alleged defect arose within the one-year implied warranty
37

period.

Scachetti’s implied warranty claim must be dismissed

because the alleged defect did not occur until well-outside the
one-year warranty period.

Stevenson v. Mazda Motor of America,

Inc., 2015 WL 3487756, at *12 (D.N.J. 2015) (“[N]umerous cases
in this District have found that a plaintiff cannot assert a
claim for breach of the implied warranty of merchantability
where a warranty period has expired at the time a defect was
discovered.”). 13
d.

Magnuson-Moss Act

The Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. § 2301
et seq., provides a private right of action in federal court for
consumers who are “damaged by the failure of a supplier,
warrantor, or service contractor to comply with any obligation
. . . under a written warranty, [or] implied warranty.”
U.S.C. § 2310(d)(1).

15

Claims under the MMWA depend upon the

disposition of the underlying state law warranty claims.

See

Johansson v. Cent. Garden & Pet Co., 804 F. Supp .2d 257, 265
(D.N.J. 2011) (“A claim under the MMWA relies on the underlying
state law claim.”)
Because DeFillippo and Babbitt have pleaded viable claims

13

Scachetti points out that even though his FDBM refrigerator
suffered from the alleged defect in June 2018, a year after he
purchased the refrigerator from the previous owner, and six
years after it was manufactured, that does not mean the defect
had not manifested previously. Scachetti, however, does not
allege any facts to support this mere supposition.
38

for Whirlpool’s express and implied warranty claims, their MMWA
claims may proceed as well.

Argabright, 201 F. Supp. 3d at 600

(finding that because the plaintiffs stated a viable breach of
implied warranty claim, their MMWA claim could proceed).
Scachetti’s MMWA claim must be dismissed.
4.

Unjust Enrichment

Plaintiffs claim that Whirlpool has been unjustly enriched
and received an economic benefit from the sale of the FDBM
refrigerators to Plaintiffs.

Whirlpool has moved to dismiss

this claim advanced by Scachetti and Babbitt because they did
not directly purchase their refrigerators from Whirlpool –
Scachetti purchased his refrigerator from the previous
homeowner, and Babbitt purchased his refrigerator from a thirdparty seller – and to in order to sustain an unjust enrichment
claim, Plaintiffs must have conferred a direct benefit on
Whirlpool, and not a third party.
Under New Jersey law, to state a claim for unjust
enrichment, “a plaintiff must allege that (1) at plaintiffs’
expense (2) defendant received a benefit (3) under circumstances
that would make it unjust for defendant to retain benefit
without paying for it,” and that at the pleading stage, a
plaintiff “need only allege facts sufficient to show: 1)
Plaintiff conferred a benefit on Defendant; and 2) circumstances
are such that to deny recovery would be unjust.”
39

Dzielak v.

Whirlpool Corp., 26 F. Supp. 3d 304, 330–31 (D.N.J. 2014)
(citations omitted).
Plaintiffs argue that there is no consensus in the courts
in New Jersey as to whether a direct relationship between the
buyer and seller is required to sustain an unjust enrichment
claim, and their unjust enrichment claim should proceed at this
stage.
The Court’s review of the caselaw shows that in the
majority of cases concerning claims similar to the ones asserted
here – fraud and breach of warranty claims against a product
manufacturer – a plaintiff may not maintain an unjust enrichment
claim against the manufacturer if he did not purchase the
product directly from the manufacturer.

See Jan Schechter v.

Hyundai Motor America and Hyundai Motor Company, 2019 WL
3416902, at *11 (D.N.J. July 29, 2019) (dismissing the
plaintiffs’ unjust enrichment claims based on their allegations
that the defendants wrongfully and intentionally concealed the
true nature and extent of the a powertrain defect at the time of
sale because the plaintiffs did not purchase their vehicles
directly from defendants); Greek v. Diet Works, LLC, 2018 WL
1905803, at *4 (D.N.J. 2018) (“[T]he overwhelming majority of
New Jersey courts have held that an indirect purchaser cannot
state a claim for unjust enrichment.”); Dzielak v. Whirlpool
Corp., 26 F. Supp. 3d 304, 330 (D.N.J. 2014) (dismissing the
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plaintiffs’ unjust enrichment claims against Whirlpool arising
out of the cost of energy efficient washing machines because
they did not purchase their washing machines directly from
Whirlpool, but permitting the plaintiff’s unjust enrichment
claims to proceed against the third-party sellers, like Lowe’s
and Home Depot) (citing Snyder v. Farnam Companies, Inc., 792 F.
Supp. 2d 712, 724 (D.N.J. 2011) (“Plaintiffs have failed to
allege that they purchased the Products directly from
Defendants, they cannot rightfully expect any remuneration from
Defendants, since they never directly conferred a benefit on
Defendants.”); Cooper v. Samsung Electronics Am., Inc., 2008 WL
4513924, at *10 (D.N.J. Sept. 30, 2008), aff'd, 374 F. App’x 250
(3d Cir. 2010) (dismissing an unjust enrichment claim where
consumer's purchase was through a retailer, as there was no
relationship conferring any direct benefit on the
manufacturer)); Chernus v. Logitech, Inc., 2018 WL 1981481, at
*16 (D.N.J. 2018) (same); Merkin v. Honda North America, Inc.,
2017 WL 5309623, at *6 (D.N.J. 2017) (same).
Because Scachetti and Babbitt did not purchase their
refrigerators directly from Whirlpool, their claims against
Whirlpool for unjust enrichment must be dismissed. 14

14

DeFillippo purchased his refrigerator from a third-party
seller, PC Richard. Whirlpool has not moved to dismiss his
unjust enrichment claim on the same basis as Scachetti and
Babbitt, and instead appears to rely upon its argument that none
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CONCLUSION
For the foregoing reasons, the following claims may proceed
against Whirlpool:
•

Count One – Breach of Express Warranty (DeFillippo and
Babbitt)

•

Count Two – Breach of Implied Warranty (DeFillippo and
Babbitt)

•

Count Three – Magnuson-Moss Act (DeFillippo and
Babbitt)

•

Count Four – Unjust Enrichment (DeFillippo)

•

Count Five – Common Law Fraud

•

Count Six – New Jersey Consumer Fraud Act

•

Count Seven – New Jersey Truth-in-Consumer Contract,
Warranty and Notice Act

•

Count Eight – New York General Business Law §§ 349 and
350

The following claims are dismissed:
•

Count One – Breach of Express Warranty (Scachetti)

•

Count Two – Breach of Implied Warranty (Scachetti)

•

Count Three – Breach of Magnuson-Moss Act (Scachetti)

of the Plaintiffs have properly alleged Whirlpool’s improper
conduct, which is an element of their unjust enrichment claims.
Because the Court has determined that Plaintiffs have properly
pleaded Whirlpool’s alleged fraudulent activity, the Court will
not dismiss DeFillippo’s unjust enrichment claim on this basis.
The Court also takes no position on the viability of
DeFillippo’s unjust enrichment claim under New York law, if that
law were applicable to that claim. See, supra, note 5.
42

•

Count Four – Unjust Enrichment (Scachetti and Babbitt)

An appropriate Order will be entered.

Date:
August 30, 2019
At Camden, New Jersey

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

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