EBERHART v. LG ELECTRONICS USA, INC.

Filing 51

OPINION fld. Signed by Judge John Michael Vazquez on 5/24/16. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT Of NEW JERSEY

WILLIAM EBERHART,

Plaint ff
Civil Action No. 15-1761
V.

OPINION
LG ELECTRONICS USA, INC.,

Defendant.

John Michael Vazguez, U.S.D.J.

This matter comes before the Court by way of the Motion to Dismiss the First Amended
Class Action Complaint (“Amended Complaint” or “FAC”) filed by Defendant LG Electronics
USA, Inc. (“LG”). D.E. 37. Plaintiff William Eberhart opposed the motion (D.E. 47) and LG
filed a reply (D.E. 50). For the reasons stated below, the motion is granted in part and denied
in part.
I.

BACKGROUND
A.

Factual Background’

This is a proposed class action against a major television manufacturer for deceptively
marketing its televisions’ frame or refresh rates. The essence of Plaintiffs complaint is that LG
deceives consumers as to the refresh rates for its televisions. Television consumers perceive
motion on a television screen by observing a display of numerous still images in rapid succession.

The factual background is taken from the Amended Complaint. When reviewing a motion to
dismiss, the Court accepts as true all well-pleaded facts in the complaint. Fowler v. UFMC
Shadyside, 57$ f.3d 203, 210 (3d Cir. 2009).
1

1

FAC

¶

2, D.E. 33. The number of unique still images that are displayed on a television screen

during each second is referred to as the “refresh rate.” Id. Because electricity in the United States
runs at 60 hertz (“Hz”), televisions here generally have a 60 Hz refresh rate, meaning the television
displays sixty unique images per second. Id. Through a technology called “motion interpolation,”
television manufacturers can increase the refresh rates by adding a unique image or images in
between the original sixty images. Id. at

¶J 35-3 8.

As a result, sixty new and unique images are

interspersed with the original sixty images thereby creating an accurate refresh rate of 120 Hz. Id.
at

¶

38. However, LG allegedly used a less expensive and inferior technology which did not

actually create or insert new and unique images between the original images. Id. at ¶ 39.
Plaintiff alleges that LG created two ratings systems, the Motion Clarity Index (“MCI”)
and “TruMotion,” which purport to measure refresh rates for its LCD televisions with the aim of
misleading consumers and commanding a higher price for its products.2 Id.

¶ 3-4,

6. Although

televisions only have a native refresh rate of 60 Hz, LG uses a technology called “backlight
scanning” to make it appear that its televisions have a refresh rate of 120 Hz or higher. Id.

¶11 31-

34. LG, however, intentionally fails to provide customers with access to the actual, native refresh
rates of its televisions and utilizes ratings numbers of 120, 240, and 480, which are traditionally
associated with hertz measurements, to confuse customers. Id.

¶J 6,

11, 33, 46. Plaintiff alleges

that LG uses these ratings to “deceive customers into believing that their televisions can somehow
increase the true refresh rates to levels above the standard 60 Hz.” Id.

¶ 5.

In actuality, customers

pay an inflated price to purchase televisions “with an actual refresh rate of 60 Hz and a built-in,
cheap industry trick.” Id.

2

¶ 34.

LG utilized the TruMotion ratings before 2014 then switched to the MCI ratings in 2014. FAC

¶J3-4.
2

Plaintiff, William Eberhart, bought a 60 inch LG 60LB5200 television at a Walmart near
his home in Toms River, New Jersey. Id. ¶j 17-18. Plaintiff sought out a television that had a
minimum of 120 Hz and purchased the specific LG model because he believed that it “well
exceed[ed] his 120 Hz floor.” Id.

¶ 20. Plaintiff alleges that he relied upon LG’s website and the

television packaging, “which listed the television’s refresh rate as MCI [480].” Id.
Plaintiffs television has a native refresh rate of 60 Hz. Id.

¶J 19-21.

¶ 22. Consequently, Plaintiff alleges

that he was damaged because he paid a premium that is attributable to LG’s misstatements about
the television’s refresh rate. Id.
B.

¶ 23.

Procedural History

Plaintiff filed his complaint on March 9, 2015, seeking to represent a class of purchasers
of LG LCD televisions from March 1, 2011 to the present. Plaintiffs complaint contained the
following counts: (1) violations of the New Jersey Consumer fraud Act (“CFA”), N.J. Stat. Ann.

§

56:8-2; (2) breach of the covenant of good faith and fair dealing; (3) common law fraud; (4)

negligent misrepresentation; (5) breach of express warranty; and (6) unjust enrichment. D.E. 1.
LG filed a motion seeking to dismiss all six counts of the Complaint on May 21, 2015. D.E. 13.
On December 30, 2015, Judge Arleo granted Defendant’s Motion to Dismiss in its entirety. Judge
Arleo dismissed Plaintiffs unjust enrichment claim with prejudice and the remaining five counts
were dismissed without prejudice, providing Plaintiff leave to file an amended complaint. See
Dec. 30, 2015 Opinion (“Opinion”) and Order, D.E. 29-3 0. Plaintiff filed his Amended Complaint
on January 15, 2016, asserting causes of action under the CFA, common law fraud, and negligent

When Plaintiff purchased his television, the LG website stated that “[o]ur Motion Clarity Index
(MCI) rates how well LG LCD televisions display fast motion. This figure represents not only the
benefits of our enhanced frame rates but also our detailed backlight scanning, advanced local
dimming, and powerful video processing engine. A higher MCI is better, and this television has
earned an impressive rating of 480.” Id. ¶J 20, 40.
3

misrepresentation. D.E. 33. Defendant subsequently filed this motion to dismiss the Amended
Complaint on February 26, 2016. Defendant seeks for the Court to dismiss Plaintiffs Amended
Complaint in its entirety. D.E. 37.
II.

LEGAL STANDARD

LG argues for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). For a complaint to survive
dismissal under Rule 12(b)(6), it must contain sufficient factual matter to state a claim that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ati. Corp.

V.

Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads

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

further, a plaintiff must “allege sufficient facts to raise a

reasonable expectation that discovery will uncover proof of her claims.” Connelly v. Lane Const.
Corp., 809 F.3d 780, 789 (3d Cir. 2016). A complaint that only pleads facts that are consistent
with a defendant’s liability, however, “stops short of the line between possibility and plausibility
of entitlement to relief.” Id. at 786.
In evaluating the sufficiency of a complaint, district courts must separate the factual and
legal elements. Fowler v. UFliCShadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements
of the elements of a claim are legal conclusions, therefore, they are not entitled to an assumption
of truth. Bunch v. Mulberg factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however,
“must accept all of the complaint’s well-pleaded facts as true.”

fowler, 578 F.3d at 210.

Moreover, the Court must consider the complaint as a whole. Argueta v. US. Immigration &
Customs Enforcement, 643 F.3d 60, 74 (3d Cir. 2011).

The matter was transferred to the Honorable John Michael Vazquez, U.S.D.J., on February 25,
2016. D.E. 36.
4

For allegations sounding in fraud, Rule 9(b) imposes a heightened pleading standard.
Specifically, a party alleging fraud “must state with particularity the circumstances constituting
fraud or mistake,” but “[rn]alice, intent, knowledge, and other conditions of a person’s mind may
be alleged generally.”

A plaintiff must plead fraud with sufficient

fed. R. Civ. p. 9(b).

particularity such that he puts the defendant on notice of the “precise misconduct with which [he
is] charged.” Lttm V. BankofAm., 361 f.3d 217, 223-24 (3d Cir. 2004), abrogated in part on other
grottnds by Twombly, 550 U.S. at 557. “To satisfy this standard, the plaintiff must plead or allege

the date, time, and place of the alleged fraud or otherwise inject precision or some measure of
substantiation into a fraud allegation.” Frederico v. Home Depot, 507 f.3d 188, 200 (3d Cir.
2007).
III.

DISCUSSION
A.

New Jersey Consumer fraud Act (Count I)

A plaintiff must establish three elements for a CFA claim to survive a motion to dismiss:
(1) unlawful conduct, (2) an ascertainable loss, and (3) a causal connection between the
defendant’s unlawful conduct and the plaintiffs ascertainable loss. In re AZEK Bid/ding Prods.,
Inc. Mktg. & Sales Practice Litig., $2 F. Supp. 3d 608, 623 (D.N.J. 2015).

LG attacks the Amended Complaint with three arguments: (1) LG’s advertising was
literally true, (2) lack of causal connection, and (3) lack of ascertainable loss. As to the first point,
Judge Arleo already concluded that Plaintiff “adequately alleged unlawful conduct under the
Cf A.” Opinion at 7-8. As Judge Arleo correctly noted, a statement can still be misleading and

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deceptive to an ordinary consumer even if it is not literally false. Id. at 7 (citing Union Ink Co. v.
AT&TCorp., 352 N.J. Super. 617, 644-45 (App. Div. 2002)).
Concerning lack of causal connection, LG argues that Plaintiffs CFA claim fails because
he sought a television with a minimum frame rate of 120 Hz and he actually purchased a television
with a 120 Hz frame rate. In support, LG cites to an article referenced in note 3 of the Amended
Complaint. Consequently, LG argues that Plaintiff suffered no harm from his purchase. Del’s Br.
at 9. LG’s argument is unavailing. First, Plaintiff did not cite to the article to demonstrate the
actual refresh rate of his television.

Instead, the article was used to demonstrate that LG’s

representations were misleading and inaccurate. More importantly, Plaintiff pleads that he thought
he was purchasing a television with a frame rate of more than 120 Hz “because the advertised MCI
480 rating.

.

.

made him believe that the {t]elevision well exceeded his 120 Hz floor,” but received

a Television with a lower than expected frame rate. FAC ¶J 20, 22. Thus, while Plaintiff indicated
that he desired a television with at least 120 Hz, he thought that the set he purchased from LG far
exceeded this minimum. The situation is akin to a consumer who indicates that he had wanted an
automobile with a mileage of at least twenty-five miles per gallon and then purchased a car he
The manufacturer is not then immune if it

believed received forty-five miles per gallon.

demonstrates that the vehicle obtained twenty-five miles per gallon, for such argument fails to
account for the difference in the premium paid for a more fuel efficient vehicle (i.e., one that
obtained forty-five miles per gallon).
LG further argues that Plaintiff fails to establish ascertainable loss because the Amended
Complaint does not allege prices for the promised television and the television he purchased. Defs

The Court is also bound by Judge Arleo’s prior conclusions pursuant to the law of the case
doctrine, which prevents “relitigation of an issue after it has been actually decided in an earlier
stage of the same litigation.” See K,ys v. Aaron, 106 F. Supp. 3d 472, 480 (D.N.J. 2015).
6

Br. at 11-12. Although not specifically defined, “the New Jersey Supreme Court has recognized
that the [ascertainable] loss must be capable of calculation, and not just hypothetical or illusory.”
Mladenov v. Wegmans food Markets, Inc., 124 F. Supp. 3d 360, 374 (D.N.J. 2015). “The precise
amount of loss need not be known; it need only be measureable.” Dzielak v. Whirlpool Corp., 26
F. Supp. 3d 304, 336 (D.N.J. 2014).
Judge Arleo dismissed Plaintiffs CFA claim in the original complaint because the single
allegation as to Plaintiffs loss failed to provide a means by which to quantify the amount of his
ascertainable

loss.6

Opinion at 8. Although Defendant correctly states that Plaintiffs Amended

Complaint does not contain any price information (Defs Br. at 12), it omits the fact that Judge
Arleo provided Plaintiff two options by which he could adequately plead ascertainable loss: price
comparison or a method for quantifying loss. Judge Arleo ruled as follows:
This allegation does not provide a method to determine the premium paid for a higher
refresh rate on his television. Nor does he allege prices for comparable televisions without
the deceptive advertising or with clearly expressed, accurate refresh rates. Plaintiff must
allege a means of quantling his loss in order to show ascertainable loss, and he has not
done so.
Opinion at 8-9 (emphases added).
As instructed, Plaintiff attempts to provide a means by which to quantify his loss in the
Amended Complaint. Plaintiffs attempt, however, falls short. Plaintiff states that “[d]iscovery,
coupled with regression analysis, will isolate the relationship between refresh rate
market value of the television.” FAC

.

.

.

and the

¶ 51. Plaintiff further states that there is a quantifiable

difference in price between “the price that consumers would pay.

.

.

for {t]elevisions with actual

heightened or greater refresh rates (e.g. 120, 240, 480 Hz) versus the price for a deceptively

In the original complaint, Plaintiff only alleged that “refresh rates of modem televisions are an
important differentiator among competing manufacturers and are, likewise, a key component of
Compi. ¶ 7, D.E. 1.
television pricing...
6

.“

7

marketed [t]elevision.” Id.

¶

55.

Plaintiffs proposed formula, however, does not provide a

meaningful comparison. Plaintiff asks the Court to compare televisions with a heightened refresh
rate, regardless of whether the refresh rate is real or deceptive. This analysis would likely result
in a zero or nominal loss. The reason is that the price for both televisions

—

have legitimate refresh rates and those that have artificially high refresh rates

those that actually

—

is presumably the

same or very similar.
Instead, to meaningfully determine Plaintiffs ascertainable loss, Plaintiff should provide
plausible facts that compare televisions that have an increased refresh rate with televisions that
have the lower refresh rate Plaintiff actually received. See, e.g., Dzielak, 26 F. Supp. 3d at 336
n.23 (“The amount of the price premium can be reasonably quantified by an appropriate market
study of the prices for comparable washing machines sold with and without the Energy Star logo
.“);

Torres-Hernandez v. CVT FrePaid Solittions, Inc., No. 08-cv-1057-FLW, 2008 WL

5381227, at *7 n.3 (D.N.J. Dec. 17, 2008) (allegation that “an ascertainable economic loss that
includes the purchase price of the pre-paid calling cards and the difference in price between the
purchase price of the pre-paid cards and the fair market value for the actual minutes plaintiff
received” would be sufficient to establish ascertainable loss); Romano v. Galaxy Toyota, 399 N.J.
Super. 470, 484 (App. Div. 2008) (stating that the proper method to quantif,r ascertainable loss
under the CFA is “the difference between the [item] she received and the [item] as represented at
purchase”). Plaintiff complicates the issue and does not provide a practical means to quantify the
ascertainable loss.7 Consequently, Plaintiffs CFA claim is dismissed without prejudice.8

The Court notes, that as previously set forth by Judge Arleo, Plaintiff could also provide a
relevant price comparison.
LG argues that Plaintiff should not be provided with an opportunity to re-plead because an
amendment would be futile. Defs Br. at 18. Because Plaintiff could reasonably plead sufficient

8

8

B.

Common Law Fraud (Count II)

“To establish common-law fraud, a plaintiff must prove: ‘(1) a material misrepresentation
of a presently existing or past fact; (2) knowledge or belief by defendant of its falsity; (3) an
intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and
(5) resulting damages.” Banco Popular N. Am. v. Gandi, 184 N.J. 161, 172-73 (2005) (quoting
Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997)). Fraud must be pled with particularity

pursuant to Rule 9(b). See frederico, 507 F.3d at 200.
In dismissing Plaintiffs original fraud claim, Judge Arleo determined that Plaintiff (1)
satisfied the particularity requirements pursuant to Rule 9(b), (2) adequately alleged that Defendant
knew the alleged statement was false and intended to induce others to rely on its false statement,
and (3) that Plaintiff was damaged. Opinion at 9-12. Judge Arleo, however, dismissed Plaintiffs
fraud claim “for failure to adequately allege reliance on specific misrepresentations.” Id. at 11.
As previously discussed by Judge Arleo, in Gray v. Bayer Corp., the court determined that
“alleging the general exposure to, and reliance upon, some advertisements, is insufficient to
survive heightened scrutiny.” No. 08-4716, 2009 WL 1617930, at *3 (D.N.J. June 9, 2009)
(dismissing fraud claim where plaintiff only pled that she “relied on Bayer’s representations”).
Following Gray, Judge Arleo concluded that Plaintiffs representation that he “reviewed
advertisements and technical specifications created and disseminated by Defendant” was not
enough. Opinion at 11.

facts to survive a motion to dismiss, the Court will dismiss this count without prejudice and permit
Plaintiff leave to file a Second Amended Complaint if he so chooses. See Clements v. Sanofi
Aventis, US., Inc., 111 F. Supp. 3d 586, 603 (D.N.J. 2015) (providing plaintiff with opportunity
to re-plead because “[t]he Third Circuit has liberally permitted pleading amendments to ensure
that a particular claim will be decided on the merits rather than on technicalities”).
9

Plaintiffs Amended Complaint remedies these shortcomings and pleads reasonable
reliance with sufficient particularity. In the Amended Complaint, Plaintiff pleads that he expressly
relied on statements on LG’s website and television packaging stating that the television had an
MCI rating of 480, providing a screenshot of the website page and a picture of the packaging that
he allegedly reviewed before purchasing the television. FAC

¶J 20-21.

Plaintiff further pleads

that LG’s statements about the MCI rating “made him believe that the [t]elevision well exceeded
his 120 Hz floor.” Id.

¶ 20.

This is sufficient to survive a motion to dismiss. See In re L ‘Oreal

Wrinkle Cream Mktg. & Sates Practices Litig., No. 12-3571, 2013 WL 6450701, at *5..6 (D.N.J.

Dec. 9, 2013) (denying motion to dismiss fraud claims where plaintiffs adequately pled the
misrepresentations that led them to make their purchases): Smajtaj v. Campbell Sottp Co., 782 F.
Supp. 2d 84, 105 (D.N.J. 2011) (concluding that plaintiffs adequately pled fraud claim where at
least one Plaintiff pled that she purchased soup “afier viewing misleading statements and
representations on the labels of the cans and Campbell’s website”).
LG argues that Plaintiffs Amended Complaint does not adequately plead a claim for fraud
because Plaintiff cannot demonstrate that his reliance was reasonable. LG claims that its materials
state that the television had an MCI rating of 480 and did not mention refresh rates, frame rates,
or hertz. Consequently, LG argues that it was unreasonable for Plaintiff to equate MCI ratings
with refresh rates. Defs Br. at 13-14. The Court disagrees. LG is essentially rearguing that its
use of TntMotion and MCI was not misleading, a position already rejected by Judge Arleo. Judge
Arleo determined that Plaintiff adequately alleged an intent to deceive and knowledge of the
falsity. Opinion at 11 (“These allegations, among others, sufficiently allege that Defendant knew

10

that its refresh rates were lower that it was implying them to be.”).9 Moreover, Plaintiff’s Amended
Complaint explicitly pleads that in 2014, LG “began measuring its LCD television refresh rates

¶ 4. In addition, LG “fail[ed] to include or reference

based on a ‘Motion Clarity Index.”10 FAC

the true refresh rate of its televisions in [h]ertz within its marketing materials and packaging,” and
set the MCI ratings “at increments which mirror standard [h]ertz measurements for televisions.”
Id.

¶ 6. Last, although MCI is an “index,” LG’s explanation of what MCI measures explicitly

mentions “enhanced frame rates.” FAC

¶J 20. This is more than enough at the motion to dismiss

stage to plead that Plaintiff’s reliance was reasonable. See, e.g., Smajlaj, 782 F. Supp. 2d at 105.
LG also argues that it was unreasonable for Plaintiff to rely on LG’s website and packaging
“given the wealth of publically available information that explained that most major television
manufacturers (including LGE) implemented ratings systems that incorporate different elements
and that are expressly not ‘refresh rates.” Def’s Br. at 14. In support of its position, LG points to
the articles referred to in the Amended Complaint. Id. Although Plaintiff’s Amended Complaint
incorporates a few articles by reference, Plaintiff cites to the articles to demonstrate that LG created
a misleading marketing practice. FAC

¶J 46-49. Plaintiff does not allege that he relied on any

articles, let alone read them, before purchasing his television.

Moreover, Plaintiff had no

LG’s argument that Plaintiff’s reliance was not reasonable was also implicitly rejected by Judge
Arleo when she concluded that Plaintiff adequately alleged unlawful conduct under the CFA.
Opinion at 7-8 (“According to the Complaint, Defendant created rating systems for their
television[s]’ clarity of motion, intentionally pegged at intervals associated with hertz to mislead
consumers into believing LG televisions had higher refresh rates. Plaintiff has alleged sufficient
facts to show that Defendant’s MCI and TruMotion systems cottid mislead the average reasonable
consttmer.” (emphasis added)). Judge Arleo determined that a reasonable consumer could be
misled by LG’s statements, and Plaintiff clarified in the Amended Complaint that he did in fact
rely on these misleading representations.
The Amended Complaint pleads similar allegations for TruMotion, namely that “TruMotion
which drastically reduces blur and yields crisper
increases the standard 60 Hz refresh rate
LG TruMotion 120 Hz, 240 Hz or 480 Hz is available on select-model LCD TVs.”
details
FAC3.
10

.

.

.

.

.

.

.

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obligation to conduct an inquiry into whether LG’s statements were accurate. Watid v. Yolanda
for Irene Cottture, Inc., 425 N.J. Super. 171, 184 (App. Div. 2012) (concluding that plaintiffs’
reliance was justifiable under the circumstances and facts did not support the conclusion that they
conducted or were required to conduct an independent inquiry). Given that the Court must view
the allegations in a light most favorable to Plaintiff, it rejects LG’s argument that the inclusion of
these articles negates Plaintiff’s reasonable reliance. Whether Plaintiff was aware of any articles
regarding LG’s misleading practice and what articles, if any, that he read is best left for discovery.
As a result, LG’s motion to dismiss as to the fraud claim is denied.
C.

Negligent Misrepresentation (Count III)

To establish a claim for negligent misrepresentation, a plaintiff must establish that (1) a
false statement, (2) was negligently made, (3) plaintiffjustifiably relied on that statement, and (4)
suffered economic loss or injury because of the reliance. Wiatt v. Winston & Strawn LLP, 838 F.
Supp. 2d 296, 312 (D.N.J. 2012). The Court determines that Plaintiff’s Amended Complaint sets
forth a claim for negligent misrepresentations based on affirmative misrepresentations. LG does
not appear to argue otherwise.
In the first motion to dismiss, Judge Arleo concluded that Plaintiff “identiflied] at least two
3, 37-38). Plaintiffs Amended

allegedly false statements.” Opinion at 12 (citing Compi.

¶J

Complaint contains the same factual allegations. FAC

3, 40-41. Thus Plaintiff adequately

¶

pleads the existence of false statements. Plaintiff’s Amended Complaint also pleads that the
statements were negligently made (FAC ¶J 87), and that Plaintiffjustifiably relied on the statements
(see supra IH.B) and suffered an economic injury (FAC

¶ 23).

LG, however, argues that Plaintiff does not state a negligent misrepresentation claim to the
extent Plaintiff alleges that he relied on LG’s omissions. Defs Br. at 15-16. The Court agrees. A

12

negligent misrepresentation claim may be based on an omission oniy if the breaching party owes
an independent duty to disclose.

Henderson v. Volvo Cars of N. Am., LLC, No. 09-4146

(DMC)(JAD), 2010 WL 2925913, at *11 (July 21, 2010). Under New Jersey law, a duty to
disclose arises when (1) a fiduciary relationship exists between the parties, (2) the transaction is
intrinsically fiduciary in nature in that it calls for good faith and full disclosure, or (3) one party
expressly reposes a special trust or confidence in the other. Id.
Plaintiff pleads no facts to support his conclusory statement that “Defendant owed a duty
to Plaintiff and Class to provide them with accurate information regarding the true refresh rates of
the Television.” FAC

¶ 85. There is no evidence to suggest that the parties were in a fiduciary

relationship or that the transaction was fiduciary in nature. Instead, it is clear that the parties were
engaged in an arm’s length transaction. See, e.g., Alin v. Am. Honda Motor Co., Inc., No. 08-4825
(KSH), 2010 WL 1372308, at *14 (D.N.J. Mar. 31, 2010) (dismissing negligent misrepresentation
claim based on an omission where “the facts alleged in the complaint indicate that the parties
entered into an arm’s length contract” regarding a car lease). Plaintiffs argument that he placed
special trust in LG is also unavailing. Ph’s Br. at 22-23, D.E. 47. This is because the third
exception regarding a special trust or confidence is only applicable when “the advantage taken of
the plaintiffs ignorance is so shocking to the ethical sense of the community, and is so extreme
and unfair, as to amount to a form of swindling.” City of Milville v. Rock, 683 F. Supp. 2d 319,
332 (D.N.J. 2010) (quoting United Jersey Bank v. Kensey, 306 N.J. Super. 540, 553 (App. Div.
1997) (dismissing fraud claims premised on an omission because there was no duty to disclose).
This matter clearly does not fall within this exception. Consequently, because LG had no duty to
disclose facts to Plaintiff, his negligent misrepresentation claim, to the extent it is based on an
omission, is dismissed with prejudice.

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U.

TruMotion

LG argues that Plaintiffs claims as to TruMotion should be dismissed because TruMotion
and MCI are distinct, and Plaintiff did not rely on the TruMotion rating scale when he purchased
his television. Consequently, Plaintiff “cannot plead legally sufficient claims based on statements
regarding TruMotion.” DePs Reply Br. at 14; see also Defs Br. at 16-17. Judge Arleo concluded
that that there was a common basis between allegations regarding the TruMotion and MCI ratings,
the products were the same, and the Defendant was the same. As a result, Judge Arleo deferred
final adjudication of whether Plaintiff has standing to bring class claims for TruMotion televisions
until class certification. Opinion at 5-6 (citing In re L ‘Oreal Wrinkle Cream Mktg. & Sales
Practices Litig, 2013 WL 6450701, at *4). The Court sees no reason to disrupt Judge Arleo’s
conclusion. As previously detenriined, the issue of whether Plaintiff can assert class claims on
behalf of TruMotion consumers can be addressed at the class certification stage.
IV.

CONCLUSION

For the foregoing reasons, LG’s Motion to Dismiss the First Amended Class Action
Complaint is granted in part and denied in part. An appropriate order accompanies this opinion.
Dated: May 24, 2016

7

Joh’Michael Vazque.Sj)J.J.

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