DICUIO v. BROTHER INTERNATIONAL CORPORATION
OPINION filed. Signed by Judge Freda L. Wolfson on 5/27/2015. (eaj)
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT DICUIO, on behalf of himself
and all others similarly situated,
Civ. Action No.: 11-1447 (FLW)(TJB)
WOLFSON, District Judge:
In this putative class action, Plaintiffs Robert Dicuio ("Dicuio"), William Self, Karen
Pociluyko, and Angela Bryant (collectively "Plaintiffs") bring suit under the Class Action
Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332, alleging that Defendant Brother International
Corporation (“Defendant” or “Brother”) designed its printers and color ink cartridges in such a
way that all color cartridges will signal “toner life end” simultaneously, even though only one
cartridge may be exhausted. The Second Amended Complaint (“SAC”) asserts claims under the
New Jersey Consumer Fraud Act; the Indiana Deceptive Consumer Sales Act; the Illinois
Consumer Fraud and Deceptive Business Practices Act; and the Florida Deceptive and Unfair
Trade Practices Act.1 Defendant has filed motions for summary judgment against all named
The SAC also makes claims under the the California Unlawful, Unfair and Fraudulent Business
Practices Act and the California Consumer Legal Remedies Act; however, the only named
plaintiff with standing to assert California claims, Reuben Zadeh, voluntarily dismissed his
claims. See Order, October 17, 2013. Therefore, such claims are no longer asserted.
Plaintiffs; Plaintiffs oppose these motions and have moved for class certification. In addition to
opposing the motion for class certification, Defendant moves to strike certain evidence that
Plaintiffs submitted in support of that motion.
For the reasons expressed below, Defendant’s motions for summary judgment against
Plaintiffs Robert Dicuio, William Self, Karen Pociluyko, and Angela Bryant are granted. Having
granted those motions, the class certification motion is moot. In addition, because Defendant has
moved to strike only evidence submitted in favor of class certification, I need not decide these
motions; I have, however, considered all evidence submitted.
The original Complaint in this case was filed as a putative class action by Plaintiff
DiCuio, a New Jersey resident, in New Jersey Superior Court, on January 31, 2011. See DiCuio
v. Brother Internat’l Corp., 2011 WL 5557528 at *1 (D.N.J. Nov. 15, 2011). The case was
removed to this Court on March 14, 2011. Id.; Notice of Removal. Following this Court’s denial
of Plaintiff’s motion to remand, see id., the First Amended Complaint (FAC) was filed on
December 21, 2011. The FAC named as additional Plaintiffs the following: Self, Karen
Pociluyko, and Bryant, as well as Robert Albanese, Terry Pociluyko, Reuben Zadeh, and Robert
Steur2. In addition to state law claims of breach of contract and breach of express and implied
warranties, the FAC asserted causes of action under the consumer fraud statutes of each
Albanese, Terry Pociluyko, and Steur all withdrew their claims prior to the filing of the Second
Amended Complaint; as stated above, Zadeh withdrew his claims before the present motions
were filed. The only remaining Plaintiffs are Robert DiCuio, Angela Bryant, Karen Pociluyko,
and William Self.
Plaintiff’s home state namely: New Jersey, California, Pennsylvania, Indiana, Illinois, and
The FAC alleged the following facts: Plaintiffs purchased certain Brother model printers
and color toner cartridges for use in those printers. FAC at ¶ 1. Specifically, the claims cover
Brother-brand printer model numbers: HL-4070CDW/4040CN/4040CDN/4050CDN, DCP
9040CN/9042CDN/9045CDN, and MFC-9440CN/9450CDN/9840CDW. Id. The claims also
cover color toner cartridge models TN-110 and TN-115. Id. Plaintiffs alleged that “Defendant
sold printers designed to be rendered inoperable when only one of three independent color
cartridges is exhausted.” Id. at ¶ 2. Each Plaintiff stated that he or she had incurred additional
costs by being “forced to purchase not only a replacement . . . color toner cartridge for the color
that had been exhausted, but two other new toner color cartridges for the other two colors.” Id. at
Plaintiffs further alleged that the user manuals sold with the printers indicate that “the
approximate life of each of the three color cartridges is ‘1500 pages at 5% print coverage.” Id. at
¶ 22. In addition, the manuals state that “when the ink has been exhausted in any one particular
cartridge, a message will be displayed indicating ‘toner life end’ indicating which particular
color cartridge must be replaced in order that the printer continue to operate.” Id. According to
the FAC, “both the printer itself and the messages it provides on its panel and the user manual
leave the consumer to believe that when the ink of any one color has been used up, replacement
of that color alone will be sufficient to restore the printer to its full capabilities. In fact, this is
untrue.” Id. at ¶ 24.
Defendant moved to dismiss the FAC; an opinion was issued in August 2012 denying the
Motion to Dismiss (“August 2012 Decision”). Because my reasoning in that decision continues
to be relevant in this opinion, I will reiterate some portions of that decision here. In the August
2012 decision, I rejected Defendant’s argument that the Complaint did not state a claim under the
NJCFA. DiCuio v. Brother Internat’l Corp., 2012 WL 3278917 (D.N.J. Aug. 29, 2012). First,
addressing Defendant’s argument that the FAC did not allege unlawful conduct, I noted that my
prior decision in Arcand v. Brother Internat’l Corp., 673 F. Supp. 2d 282 (D.N.J. 2009)3, did not
govern this case. Id. at *5. I stated that “unlike the plaintiffs in Arcand, Plaintiffs have not hinged
their suit on the number of pages they expected to receive per cartridge.” Id. at *6. Rather, “[the]
NJCFA claim is rooted in the User Guide's representation that when the ‘toner life end’ signal
with the accompanying designation of a letter corresponding to one cartridge color is displayed,
only that specific cartridge need be replaced—not also the other two undesignated color
cartridges.” Id. I then found that the Plaintiffs’ allegations that “Defendant designed its printers
with a function that would compel its customers to prematurely and unnecessarily buy two
additional color toner cartridges each time one color cartridge was exhausted” was sufficient to
allege unlawful conduct under the NJCFA. Id.
I next turned to ascertainable loss under the NJCFA. I found that the Plaintiffs were
proceeding under an out-of-pocket theory, rather than a benefit of the bargain theory. Id. at *7–
*8. I concluded that “Plaintiffs have sufficiently pled out-of-pocket losses under the NJCFA by
asserting that they expended funds to purchase additional color toner cartridges to replace the
non-exhausted cartridges.” Id. at *8. Finally, I found that Plaintiffs had sufficiently pleaded a
In Arcand, the plaintiffs asserted that they were injured “each time they had to prematurely buy
new toner cartridges for their laser printers when the printers falsely indicated the toner cartridge
needed to be replaced notwithstanding the fact that usable toner remained in the cartridge.” Id. at
288–89. The case was dismissed because the plaintiffs had not pled an ascertainable loss:
“Plaintiffs do not allege what they did receive, i.e., an amount of pages less than what the manual
stated, nor do they allege what spurred them to believe that the printer and its cartridges were
supposed to produce more than promised in the user manual.” Id. at 300.
causal nexus between the alleged loss and the alleged misrepresentations. Having found that
Plaintiffs stated a claim under the NJCFA, I then also found that Defendant’s challenge to the
other state consumer fraud acts likewise failed. However, I dismissed the remaining state law
In April 2013, after discovery had commenced, Plaintiffs moved to file a Second
Amended Complaint (SAC). The proposed SAC eliminated certain causes of action and
“incorporate[d] newly discovered facts”. Mot. to Amend at ¶¶ 4–5. Defendant did not object to
the filing of the SAC.
The factual allegations of the SAC are virtually identical to the FAC, with two
exceptions. First, the SAC notes that each plaintiff “never changed the factory default print
setting of ‘auto’ on [his or her] printer when [his or her] printer was rendered inoperable as stated
above.” SAC at ¶¶ 3–7. Second, the SAC alleges that Defendant “admitted” its deceptive
practices in a brochure included with new printers. Id. at ¶ 25, Ex. H. The brochure states that
when the printer is in the “auto” setting, “[i]f color is detected anywhere in the document, it will
print the whole of the document using all the colors.” SAC at ¶ 27. It also says that “Users who
print primarily in black text should select Mono mode to prolong the life of their color toner
cartridges.” Id. The brochure goes on to explain that the printer “detects the life of the toner
cartridges using the following two methods.” Id. at ¶ 28. First, it describes the “optical sensor,”
which “checks the level at which toner in a cartridge interrupts light transmitted through
windows on either side of the cartridge.” Id. The second method is “detection by counting the
rotations of the developer roller,” which is described as “a function that will count the rotations
of each toner cartridge’s developer roller and stop the print operation when the upper rotation
limit is detected.” Id. The developer roller count can be “‘turn[ed] off’ . . . for [the] color
cartridges by printing in Mono mode.” Id. Plaintiffs assert that none of this information was
provided to Plaintiffs or Class Members. Id. at ¶ 30. “Without being informed of exactly how
these modes of operation use toner, no consumer could reasonably expect that color cartridge
toner would be depleted as a result of black and white and greyscale printing.” Id. Accordingly,
Plaintiffs allege that “Defendant hid the nature of the design of the Printers with respect to the
need to replace three Cartridges when only one has been exhausted.” Id. at ¶ 31.
In the instant matter, Defendant moves for summary judgment against all four named
Plaintiffs. Defendant asserts that each Plaintiff lacks standing, and that each state consumer fraud
claim must fail on the merits because Plaintiffs cannot demonstrate loss. Defendant also argues
that three of the Plaintiffs spoliated evidence. Plaintiffs simultaneously move for class
certification. Along with its Motions for Summary Judgment Defendant also moves to strike
certain evidence supportting Plaintiff’s motion for class certification.
First, I note that, pursuant to a stipulation between the parties, the motion for class
certification and the motions for summary judgment were given the same return date.
Accordingly, I must determine the order in which to decide the motions. Indeed, it is a
“recognized tactic” for a defendant to move for summary judgment before a judge determines
whether to certify a class. Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 941 (7th Cir.
1995). “A decision that the claim of the named plaintiffs lacks merit ordinarily, though not
invariably, . . . disqualifies the named plaintiffs as proper class representatives. The effect is to
moot the question whether to certify the suit as a class action unless the lawyers for the class
manage to find another representative.” Id. Furthermore, in a class action, the named plaintiff(s)
are required to demonstrate Article III standing. Warth v. Seldin, 422 U.S. 490, 502 (1975). If the
named plaintiffs lack standing, “‘none may seek relief on behalf of himself or any other member
of the class.” Id.
Moreover, because the summary judgment motions all assert that Plaintiffs lack standing,
I must determine those claims before addressing the question of class certification. However,
where a defendant moves for summary judgment against individual plaintiffs prior to class
certification, “the defendant loses the preclusive effect on subsequent suits against him of class
certification.” Cowen, 70 F.3d at 941. Indeed, Defendant here has only moved for summary
judgment on grounds relevant to the individual plaintiffs, not on grounds that would disqualify
the entire class. It is therefore appropriate to decide the summary judgment motions first.
In its summary judgment motions, Defendant raises the same issues of law for the four
named Plaintiffs. To avoid unnecessary repetition, before addressing the individual facts, I will
summarize the applicable law and will rule on certain legal issues that are common to all or most
of the motions.
FACTS RELEVANT TO ALL MOTIONS
Mechanisms of Brother-Brand Printers
The following facts are not disputed, unless otherwise noted. The subject Brother-brand
printers each use four toner cartridges: black (“K”), magenta (“M”), cyan (“C”), and yellow
(“Y”). Cooper Decl. at ¶ 6. These printers are compatible with two models of Brother-brand
toner cartridges, TN-110, which are “standard” cartridges, and TN-115, which are “high yield”
cartridges. Id. at ¶ 7. TN-110 cartridges have a page yield of 1,500 pages with 5% color
coverage; TN-115 cartridges have a page yield of 4,000 pages with 5% coverage. Id. at ¶ 7. The
term “coverage” “refers to the percentage of the surface area of the printed page where toner is
applied to the paper.” Spencer Decl. at 26. In color printing, the four toners overlap to create
shades; for this reason, the percentage coverage amount of each color often adds up to more than
the total color coverage. Id. “Page yield” is defined as the number of “test pages” that a cartridge
will print when tested under the specific conditions in a page yield testing protocol. Id. Plaintiffs’
experts contend that Defendant’s Service Reference Manual demonstrates that the expected page
yield is linear—that is, if a cartridge will yield 1,500 pages at 5% coverage, it should yield 7,500
pages at 1% coverage. Wong Repl. Decl. at ¶¶ 2–4; Pl. Repl. Ex. H. Defendant’s experts dispute
that page yield is always linear. Spencer Decl. at ¶ 30(f).
The printers use two methods to determine when the end life of a toner cartridge has been
reached: the “optical sensor” method and the “developer roller failsafe.” Id. at ¶ 9; Wong Decl. at
¶ 7. As part of the optical sensor mechanism, each cartridge has two windows on either side of
the cartridge. Cooper Decl. at ¶ 9. A light beam is shone through these windows; when the toner
is depleted to certain levels, the sensor recognizes it, and signals “toner low” and, eventually,
“toner life end.” Id.; see also Wong Decl. at ¶ 7. The developer roller failsafe counts the rotations
of the developer roller4; when a maximum number of counts is reached5, the printer will signal
“life end.” Cooper Decl. at ¶ 10; Wong Decl. at ¶ 7. If for either reason any of the cartridges
signals “toner life end,” the printer will cease to print until the cartridge has been replaced, or
until another action has been taken to override the “life end” signal; this is known as a “hard
stop.” Spencer Decl. at ¶ 19. If the optical sensor mechanism has caused the life-end signal,
removing the cartridge and reinserting it may cause the printer to print again; the developer roller
In printing, the developer roller assists in charging the toner, and rotates to transfer the charged
toner to the printer’s photoreceptive drum. Cooper Decl. at ¶¶ 22–23
In the TN-110 color cartridges, the developer roller failsafe count is 33,300 rotations; in TN115 color cartridges it is 92,500 rotations. Pl. Reply. Ex. I (Service Manual).
counter mechanism will completely prevent the printer from printing until a new cartridge is
installed. Spencer Decl. at ¶ 46(c); Esterman Decl. at ¶ 17. Each cartridge has its own developer
roller. Cooper Decl. at ¶ 10.
When a color page prints, the developer rollers in all three cartridges rotate
simultaneously. Spencer Decl. at ¶ 46(a). This means that all three cartridges will rotate even if a
given color is not being used on the page. Wong Decl. at ¶ 8. Accordingly, it is conceivable that
when three new color cartridges have been inserted at the same time, all three cartridges will
signal “life end” simultaneously if the developer roller failsafe reaches its maximum count.
Esterman Decl. at ¶ 18. Defendant’s expert, however, claims that this phenomenon is rarely
experienced by customers. Spencer Decl. at ¶ 22.
The developer roller rotates a set amount of times for different functions. When a Brother
4040 printer prints in color, the developer roller rotates 18.5 for the first page, but only 5.6 times
for subsequent pages. Wong Decl. at ¶ 10, Pl. Reply Ex. I. These rotations occur even if there is
only a small amount of color on the page. Id. In addition, in “auto” mode, which is the default
mode for the subject printers, grayscale images are printed using all four color cartridges.
Esterman Decl. at ¶ 19. The developer rollers in all three toner cartridges also rotate 12 times
when the printer is turned on. Wong Decl. at ¶ 9; see also Pl. Reply. Ex. I (Service Manual).
Plaintiffs’ experts describe these developer roller rotations as “phantom” color use, a term that
Defendant disputes. Esterman Decl. at ¶¶ 19–21; Wong Decl. at ¶ 8. Because of these designed
mechanisms, Plaintiffs complain that the cartridges will “prematurely” signal “life end.”
The HL-4040CN and the HL-4070CDW printers can produce maintenance reports (also
called “77 Reports”). Spencer Decl. at ¶ 16. These reports display a significant amount of data
regarding the printer’s status and use. One column displays, inter alia, the following data: the
total page count for the printer, the color page count for the printer, and the “average coverage”
for each of the four toner cartridges currently installed in the printer. See, e.g., Def. Ex. 19
(DiCuio Maintenance Report); see also Spencer Decl. at ¶ 27. A second column displays the last
ten error messages shown by the printer, including paper jams and toner “life end” signals, as
well the number of times each toner cartridge has been replaced, and the total pages printed for
the “current” and the most recent “previously used” cartridges. See, e.g., DiCuio Maintenance
Report. The MFC-9440CN can display similar data on its control panel display. Spencer Decl. at
Experts for both parties conducted tests on the printers and the toner cartridges, and
presented their opinions on the results. The conclusions the experts drew from these tests are, in
large part, disputed. The following is a summary of their reports.
David Spencer, a printer expert for Defendant, weighed the cartridges from Plaintiff
Pociluyko’s printer. Spencer Decl. at ¶ 17. Spencer also conducted page yield testing using
protocols developed by the International Organization for Standardization (“ISO”) to test the
TN-110, using printer models HL-4070CDW, HL-4040CN, and HL-4040CDN. Id. at ¶ 18. This
testing is designed “so that printing the entire suite is equivalent to printing 5 pages each with
5% C[yan] coverage, 5% M[agenta] coverage, 5% Y[ellow] coverage and 5% K [black]
coverage.” Id. at ¶ 29. Spencer noted several “key aspects” of the testing, including that “ISO test
results are not linear,” meaning “if a cartridge is advertised to print 1000 pages at 5% coverage,
one cannot expect that if the coverage doubles to 10%, the yield will decrease by exactly half to
500 pages.” Id. at ¶ 30(f). Spencer concluded that the TN-110 cartridges delivered their
advertised page yield, and that when one color cartridge signaled “toner life end,” it did not
cause the other two color cartridges to signal “life end” simultaneously. Id. Spencer further
opined that “if the ‘toner life end’ signal for a given cartridge is triggered by Optical Sensor
Protection then that cartridge (barring a defect . . .) has performed in a manner consistent with its
advertised page yield.” Id. at ¶ 22. Only if users engage in “certain kinds of unusual printing
behavior” will cartridges reach the developer roller failsafe before the optical sensor. Id.
Spencer also conducted tests which tested and confirmed the accuracy of the total page
counts, color page counts, and image counts shown on the printer maintenance reports. Id. at ¶
27. He further observed that the “replace counts” for the three color cartridges increased by one
when a new cartridge of each color was installed. Id. at ¶ 28.
Spencer initially stated that he had been previously informed by Brother International
Limited engineers that the “average coverage” data was not accurate.” Id. at ¶ 27. However, he
later examined the ISO testing data to determine the accuracy of the “average coverage” data.
Spencer Reb. Decl. at ¶ 14. The ISO testing is designed to be comparable to printing 5 pages
each with 5% coverage for each color. Id. Looking at maintenance reports from the beginning,
middle, and end of the testing, Spencer stated that “there is no consistent movement towards 5%
coverage for any of the 3 color toner cartridges as the test progressed, despite printing thousands
of 5% color pages.” Id. at ¶ 17. Spencer therefore concluded that the “average coverage” data is
not accurate. Id. at ¶ 18. In addition, Spencer notes that the Service Reference Manual for the
HL-4040CN indicates that the “average coverage” number is supposed to reset to zero when a
new cartridge is installed. Id. at ¶ 21 (citing Def. Ex. 88). Spencer confirmed that the function
reset on a Brother HL-4040CN printer in his laboratory. Id. at ¶ 22.
In addition, Spencer analyzed the sample documents provided by Plaintiffs in discovery
to calculate the percentage coverage for all four toners on each document. Spencer Decl. at ¶ 56.
Defendant’s Exhibit 24 (“Print Sample Coverage Analysis”) is a chart showing the percentage
coverage calculation of these documents, which consisted of various type of print-outs, including
emails, webpages, manuals, and PowerPoint presentations. The documents showed a wide range
of average color coverage, with some documents showing less than 1% coverage, while others
showed up to 53.5% coverage for one color.
Plaintiffs’ expert, Marcos Esterman, also conducted tests on the subject printer models.
Esterman found that the optical sensor method of calculating toner life end did not completely
prevent the printer from printing. Esterman Decl. at 17. Rather, when a cartridge which has
signaled life end is reinserted, the printer may continue printing. Id. Esterman also ran a test
intended to force some the cartridges to hit the roller failsafe limit. Esterman Decl. Ex. B, Test 2.
This test consisted of printing at very low percentage coverages—1% cyan, 1% magenta, 0%
yellow, and 1% or 0% black. Id. On one round, the Cyan and Magenta had the same page count
at the start of testing; these cartridges signaled “toner out” simultaneously, and reinserting them
did not permit the printer to start printing again. Id. On a second round, the cyan, magenta, and
yellow cartridges were all new; all three cartridges ran out at the same page count, although no
yellow was used in the print jobs. Id.
Esterman6, like Spencer, also conducted tests to determine the accuracy of the “average
coverage” data in the printer maintenance reports. Based on those tests, Esterman opined that
“the average coverage figure is not random” but “correlates in a predictable fashion with the
amount of color toner actually rendered on the page.” Esterman Strike Decl. at ¶ 7. As a result of
Esterman’s testing of the “average coverage” data was raised in opposition to Defendant’s
Motion to Strike Portions of Kaiser Wong's and Marcos Esterman's Reply Declarations Filed
with Plaintiffs' Reply in Support of Class Certification. This declaration, attachment 3 to Docket
No. 117, shall hereinafter be referred to as “Esterman Strike Decl.”
this correlation, Esterman stated that the average coverage data “can be used to estimate the
actual coverage for the cartridge in question,” because the average coverage data “exhibits
distinct behavior” with regard to “low (less than 2%), nominal (2–5%), or high (over 5%)
coverage. Id. at ¶ 8. Based on his testing, Esterman concluded that “both low and nominal
coverage printing may result in average coverage values of 2% or less,” id. at ¶ 17, while for
“high coverage” printing, “the average coverage would be reported as higher than 2%.” Id. at ¶
Plaintiffs also submitted an expert report from Kaiser Wong, an expert in the testing and
development of laser printers. In his report, Wong discusses the mechanisms of the printers, see
supra, and the “phantom” use of color caused by the developer roller. Wong Rep. at 7–8. Wong
opines that “because all three color cartridges’ develop[er] rollers rotate during this ‘phantom’
use, it is not uncommon for consumers to suddenly experience all three cartridges timing out
together or in close proximity if they insert the three new color cartridges at the same time.” Id.
at ¶ 8. Wong opines that the rotation count for the developer roller failsafe end-life “are set with
a lower count for the failsafe upper limit than necessary.” Id. at ¶ 13. According to Wong, when
color toner cartridges reach their life end based on the developer roller failsafe, having been used
to print low area coverage (i.e. 1% to 3% coverage printing primarily single-page jobs), “there is
almost always unused toner remaining in the toner cartridge which could otherwise be used.” Id.
at ¶ 14.
Wong submitted an additional “reply declaration.” (Dkt. No.75(1)). In this declaration,
Wong argues that Defendant’s Service Reference Manual (“the Manual”) demonstrates that the
page yield determinations are linear, “and that the less area coverage per page on average, the
more pages that are printable as page yields from the color cartridge.” Wong Repl. Rep. at ¶ 2.
Wong further asserts that, while the Manual shows that a customer can print up to 7,500 pages at
1% coverage, the Manual also shows that “this page yield cannot be obtained because the
Developer Roller Failsafe stops the cartridge from printing.” Id. at ¶ 6. Wong notes that in the
TN-110 cartridges, the developer roller failsafe is set so that the user can only obtain 1800 pages,
if printing single-page jobs. Id. at ¶ 8. According to the Manual, a TN-110 cartridge user should
be able to print 1,875 pages at 4% color coverage. Id. Wong asserts, therefore, that if a user
prints only single-page jobs at 4% coverage, the developer roller failsafe mechanism will stop at
1800 pages, preventing the user from obtaining the full 1874 pages. Id. Wong further reiterates
that grayscale images are frequently printed using color, and that the developer rollers turn
simultaneously. Id. at ¶¶ 11, 14.
STANDARD OF REVIEW: SUMMARY JUDGMENT
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party requesting summary judgment must show that a material fact is not genuinely
disputed by “citing to particular materials in the record” or by “showing that the materials cited
do not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Id. at 56(c). For an issue to be genuine, there
must be “a sufficient evidentiary basis on which a reasonable jury could find for the non-moving
party.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). For a fact to be material, it must have the ability to “affect
the outcome of the suit under governing law.” Kaucher, 455 F.3d at 423.
The party seeking summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion” and identifying the evidence which
“demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once that burden is met, the non-moving party has the “burden of
producing in turn evidence that would support a jury verdict.” Anderson, 477 U.S. at 256. To
determine whether a genuine issue exists, the court must view the facts, and all reasonable
inferences to be drawn from those facts, in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley v. Klem,
298 F.3d 271, 276–77 (3d Cir. 2002). However, “[t]he mere existence of a scintilla of evidence
in support of the plaintiff's position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
SUMMARY JUDGMENT AGAINST PLAINTIFF DICUIO
Defendant presents three grounds for summary judgment against Plaintiff DiCuio: Article
III standing, the lack of an ascertainable loss under the NJCFA, and spoliation. Following a
summary of the facts of DiCuio’s case, I shall address each argument.
A. Factual Background of Plaintiff DiCuio’s Claim
DiCuio, a New Jersey resident, purchased a Brother HL-4040CN printer from Staples in
2008 for $249.99 DiCuio Statement of Undisputed Material Facts (“DiCuio SUMF”) at ¶ 1. This
printer came with standard TN-110 toner cartridges, for which the advertised page yield is 1,500
pages at 5% coverage. Id. at ¶¶ 2, 10.
According to DiCuio, he purchased either eight full sets of replacement color cartridges,
or eight individual cartridges; a maintenance report from DiCuio’s printer (Def. Ex. 19) indicates
that DiCuio replaced each color cartridge six times. Id. at ¶¶ 4–5. On occasion, when the printer
would indicate a toner cartridge was empty, DiCuio would shake that cartridge and was then able
to print more pages; this indicates that the signal was triggered by the optical sensor. Id. at ¶ 6.
Generally, though, when the printer indicated a toner cartridge was empty, DiCuio would replace
only that cartridge. Id. at 7; DiCuio Dep. at 77:18–21. On multiple occasions, however, after
replacing one color cartridge, the printer would print for only a short period of time before
indicating that at least one of the other cartridges was also empty. DiCuio Dep. at 65:6–22.
DiCuio also estimated that on three occasions, he had to replace all three cartridges in order to
render the printer operational. Id. at 117:15–19.
The maintenance report from DiCuio’s printer indicates that DiCuio printed a total of
13,299 color pages. DiCuio SUMF at ¶ 12; see also DiCuio Maintenance Rep., S.J. Mot. Ex. 19.
In his deposition, DiCuio estimated that the page yield he received for the color cartridges
averaged around 750 pages, and that the average color coverage of his print jobs was
approximately 40%. DiCuio Dep. at 164:2, 166:10–:18. However, the printer maintenance report
states that the average percentage coverage was 0.04% for cyan, 0.04% for magenta, and 0.04%
for yellow. DiCuio Maintenance Rep. (Def. Ex. 19). The single sample document that DiCuio
provided in discovery had a percentage color coverage of 5.81% for cyan, 5.94% for magenta,
and 5.05% for yellow. Print Sample Coverage Analysis.
DiCuio continued to use his printer after becoming a party to this action in January of
2011. DiCuio SUMF at ¶ 16. While the printer tracks the number of toner replacements, and can
show the page count at which toner is replaced up to the last 10 incidents, DiCuio did not keep
any independent records of his toner cartridge purchases, replacements, or page yields. Def. Rep.
to SUMF at ¶¶ 18–19. DiCuio testified that he was unsure if he had replaced the cartridges in the
printer since March 2011, but “estimated” that he had replaced the color cartridges once. DiCuio
Dep. at 90:10–25. DiCiuo did not save any of the color cartridges he had replaced, but instead
recycled them. Id. at 91:13–21; 94:6. DiCuio also did not retain receipts for his paper purchases.
Id. at 134:20.
B. Standing and the NJCFA
Defendant has challenged both DiCuio’s standing to bring a claim and the elements of his
claim under the NJCFA, specifically, the ascertainable loss. Because these arguments are
interrelated, I will address them together.
To satisfy the “case or controversy” standing requirement under Article III of the
Constitution, a plaintiff must establish that he or she has suffered a cognizable injury that is
causally related to the alleged conduct of the defendant and is redressable by judicial action.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). The injury element, commonly
referred to as “injury-in-fact,” requires that the plaintiff suffered “an invasion of a legally
protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not
‘conjectural’ or ‘hypothetical.’” Id. at 560 (internal quotation marks and citations omitted).
“Particularized” means that “the injury must affect the plaintiff in a personal and individual
way.” Id. at 560 n.1. “The party invoking federal jurisdiction bears the burden of establishing
these elements” and at the summary judgment stage, “must ‘set forth’ by affidavit or other
evidence ‘specific facts,’ Fed. R. Civ. P. 56(e), which for purposes of the summary judgment
motion will be taken to be true.” Id. at 561.
Defendant asserts that Plaintiff DiCuio lacks standing because he “was not injured by
purchasing Brother-brand products.” DiCuio S.J. Mot. at 10. Defendant points to this Court’s
earlier decision, which stated that Plaintiffs had sufficiently alleged “‘out of pocket’ losses
attributable to ‘expend[ing] funds to purchase additional color toner cartridges to replace the
non-exhausted cartridges.’” Id. (quoting DiCuio v. Brother Int’l Corp., 2012 U.S. Dist. LEXIS
112047, *24 (D.N.J. 2012)). Defendant argues that the undisputed facts show that “Plaintiff
never did that” because the TN-110 cartridges that DiCuio used “printed 13,299 color pages at
40% average coverage.” Id. This amount, according to Defendant, exceeds the advertised
performance of the cartridges. Id.
For similar reasons, Defendant asserts that DiCuio did not suffer an “ascertainable loss,”
a required element of an NJCFA claim. Id. at 19. “To state a cause of action under the [NJ]CFA,
a plaintiff must allege: (1) an unlawful practice by the defendants; (2) an ascertainable loss by
plaintiff; and (3) a causal nexus between the first two elements—defendants' allegedly unlawful
behavior and the plaintiff's ascertainable loss.” Arcand v. Brother Intern. Corp., 673 F.Supp.2d
282, 296 (D.N.J. 2009) (quoting Parker v. Howmedica Osteonics Corp., Civ. No. 07–
02400(JLL), 2008 WL 141628, at *2 (D.N.J. Jan.14, 2008)).
To demonstrate an ascertainable loss, the plaintiff must establish an “actual loss,” that is
“quantifiable or measurable,” or “real and demonstrable,” as opposed to “hypothetical or
illusory” or “speculative.” Thiedemann v. Mercedes–Benz, USA, LLC, 183 N.J. 234, 248, 252,
255 (2005). As I explained previously in my 2012 decision, “there is little that illuminates the
precise meaning that the Legislature intended in respect of the term ‘ascertainable loss' in [the
NJCFA], and New Jersey courts have been chary to ascribe the term a precise meaning,” DiCuio,
2012 WL 3278917, at *7. However, “[t]he mere fact that a . . . defect arises does not establish,
in and of itself, an actual and ascertainable loss to the . . . purchaser.” Thiedemann, 183 N.J. at
251. Nor is the fact that a consumer may be “inconvenienced by problems” sufficient. Id. On the
other hand, an “estimate of damages, calculated within a reasonable degree of certainty will
suffice to demonstrate an ascertainable loss.” Id. at 249.
Generally, an ascertainable loss occurs “when a consumer receives less than what was
promised.” Union Ink Co., Inc. v. AT & T Corp., 352 N.J. Super. 617, 646 (App. Div. 2002). In
New Jersey courts, a plaintiff may use two methods to show an ascertainable loss: the benefit of
the bargain rule or the out of pocket rule. DiCuio, 2012 WL 3278917, at *7. “First, the ‘benefit
of the bargain’ rule allows recovery for the difference between the price paid and the value of the
property had the representations made been true”—that is, the cost for plaintiff to obtain what he
reasonably believed he was purchasing. Romano v. Galaxy Toyota, 399 N.J. Super. 470, 483
(App. Div. 2008). Under this theory, the plaintiff must show the “the difference between the
[product] she received and the [product] as represented at purchase.” Id. at 300. “[T]he “out of
pocket” approach,  provides recovery for the difference between the price paid and the actual
value of the property acquired.” Id.
DiCuio counters that “the [class] printers are designed with a number of undisclosed,
deceptive and unconscionable cartridge life-depleting mechanisms, which in concert with
[Defendant]’s misrepresentation regarding yield work to defraud the consumer.” DiCuio Opp. at
3. Relying on the Plaintiffs’ expert reports, DiCuio identifies these mechanisms as (1) the
developer roller failsafe “that is unnecessarily and arbitrarily set at a low rotation maximum
limit,” (2) that when in “AUTO” mode, the developer roller rotates and actual color toner is used
to print grayscale images; (3) the developer roller count increases for all color cartridges
“irrespective of which color toners are being used to print color on a page”; (4) the developer
roller count increasing “irrespective of whether the page has a single color character or a whole
page of color”; (5) the first page of a document using 18.5 developer roller rotations, while
subsequent color pages use only 5.6 rotations; and (6) other “phantom rotation counts” for
“various non-printing occurrences” such as turning the printer on. Id. at 3–4. In short, DiCuio
posits that Defendant designed the developer roller to unnecessarily rotate in order the reach the
failsafe limit. In that regard, Plaintiffs’ expert Wong opines that “it is not uncommon for
consumers to experience three color cartridges hitting life-end due to the phantom uses of the
developer roller.” Id. DiCuio also cites Esterman’s declaration that the developer roller rotates
even if there is only a small amount of coverage on the page. Id. Relying on his experts, DiCuio
argues that “the developer roller limit for the class printers is set at a level far below a level at
which quality and damage considerations would become relevant.” Id. at 19.
DiCuio further contends that the developer roller failsafe caused his cartridges to
“prematurely” signal “life end.” DiCuio Opp. at 21 Plaintiffs’ experts opined that “[i]f one
cartridge were to reach the optical sensor limit first and be replaced then, when replaced, the
developer roller count of the replacement cartridges would be out-of-sync with the other two
color cartridges, such that only two of the cartridges would signal ‘toner life end’
simultaneously.” Id. In fact, to defeat summary judgment, DiCuio relies on his printer
maintenance report, which shows the simultaneous life end of the cyan and yellow color
cartridges at both page counts 10433 and 16601. Id. at 9 DiCuio contends that the “life end”
signals mean the cartridges were replaced simultaneously at both of those page counts. Id. at 11.
DiCuio then asserts that “mathematically it is virtually impossible for the subject printers to
experience multiple cartridge life-end signals that are not due to the developer roller failsafe
mechanism.” Id. at 12.7 DiCuio argues that the alternative explanations suggested by
Defendant points out that the cyan cartridge additionally signaled “life end” at page count
13549, and argues that, if the cyan cartridge was replaced at that time, the simultaneous life-end
signals for the cyan and yellow cartridges at page 16601 could not have been caused by the
Defendant’s expert are incorrect, and that the only explanation for these simultaneous life-ends is
the developer roller failsafe. Id. at 13–15.
Defendant’s experts dispute many of these claims, and more generally dispute the way
the developer roller failsafe mechanism affects users. But even accepting as true, for the purpose
of this motion, Plaintiffs’ experts’ opinions that the developer roller mechanism may cause the
color toner cartridges to signal “life end” sooner than is necessary to replace the cartridges,
Plaintiff nonetheless still fails to show loss. Indeed, Plaintiffs’ expert statements are largely
general and non-specific—they do not discuss whether any individual plaintiff suffered a loss.
Rather, the experts primarily focus their opinions on how the design of the developer roller may,
in some instances, unnecessarily rotate so that the printer would reach the failsafe mechanism.
Assuming it is true that the toner cartridges reached life-end more quickly than they would have
in the absence of the developer roller failsafe, this fact, in and of itself, is insufficient to show an
“ascertainable loss,” under either theory. A plaintiff must provide at least an “estimate of
damages, calculated within a reasonable degree of certainty.” Thiedemann, 183 N.J. at 249.
Similarly, while the experts dispute the reasons for the simultaneous life ends of the
cartridges, the fact that DiCuio may have experienced simultaneous life-ends of two cartridges,
even if caused by the developer roller failsafe, is not an ascertainable loss under either theory.
Plaintiff must show that he received less than he was promised. In other words, if, at the time the
cartridges simultaneously signaled “life end,” DiCuio had received the full value of his purchase,
developer roller failsafe. Def. Repl. Br. at 13. DiCuio, however, asserts that the “life end” signal
at page 13549 was due to the optical sensor, and that DiCuio “removed, shook and reinserted”
the cartridge to render the printer operational. Id. at 12. However, even if the simultaneous life
ends were undisputedly due to the developer roller failsafe, this would still be insufficient to
show an ascertainable loss without evidence on page yield and average coverage. See infra.
i.e. the represented page yield8, the fact that the cartridges needed to be replaced together would
not be a loss. Hypothetically, even if DiCuio could show that the developer roller caused
simultaneous life-ends of his cartridges, and that the cartridges still contained 75% of the toner,
he nonetheless would not have suffered a loss, so long as he received what he was promised by
Here, the promise that Dicuio challenges as false is the page yield—that the TN-110
cartridges would yield 1500 pages at 5% coverage. The only support DiCuio relies on to show
page yield for his printer is the maintenance report produced by his Brother 4040CN printer. The
report shows that at the time the printer was examined by the experts, it had printed 13,299 color
pages. See Def. Ex. 19, pg. 457. It also shows that the “current cyan” cartridge had printed 1500
pages; the “current magenta” cartridge had printed 1456 pages; and the “current yellow”
cartridge had printed 1592 pages. Id. The previous cyan, magenta, and yellow cartridges had
printed 2346, 2316, and 2481 pages, respectively. Id. Finally, the “average coverage” statistic
showed 0.04% for each color. Id.
DiCuio suggests that Defendant’s Service Reference Manual explains that page yield is
linear, and that at 1% coverage, a user should expect to receive 7,500 pages. DiCuio Opp. at 20–
21. Because the printer maintenance report showed that he received less than 1% coverage for
each color, DiCuio asserts that he should have received at least 7,500 pages for each cartridge
Indeed, this Court came to the same conclusion in Arcand v. Brother Int’l Corp., 673 F. Supp.
2d 282 (D.N.J. 2009). There the plaintiffs argued that they suffered a loss where “large amounts
of useable toner remain in purportedly empty toner cartridges.” Id. at 297. I found that the
Complaint failed to allege an ascertainable loss, because “Plaintiffs do not allege why they
believed that the toner's life was tied to the amount of ink in the cartridge,” when the user manual
stating that the cartridge “printed up to a certain number of pages.” Id. at 200–01. I further
commented Plaintiffs cannot “attach his or her own subjective value to a product without
reference to what was expected at the time of purchase by a reasonable consumer.” Id. at 302.
used. Having purchased six sets of color cartridges, he contends that he should have received at
least 45,000 color pages. Id. at 21. Further, DiCuio argues that he also experienced an out-ofpocket loss “every time [he] had to purchase replacement color cartridges, because the prior
cartridge prematurely hit life-end without delivering the advertised yield.” Id. at 21. In that
regard, DiCuio claims that precise damages can be calculated for the previously used cartridges.
Id. at 22.9
While Defendant disagrees with DiCuio’s interpretation of the Service Reference
Manual, even if the page yield does have a linear relationship with the average coverage number,
DiCuio has not proven his claim. Defendant also disagrees with DiCuio’s reliance on the 0.04%
average coverage number. Indeed, Defendant challenges the admissibility of this data under Fed.
R. Evid. 901(b)(9).10 However, I do not find it necessary to address the admissibility of the
The maintenance report shows that a “previously used” yellow cartridge—the one with the
highest page count—printed 2481 pages. Id. Because, DiCuio asserts, he should have received a
minimum of 7,500 pages, he only received 33% of the color pages promised. Id.
Defendant argues that the “average coverage” number cannot be authenticated under Fed. R.
Evid. 901(b)(9), which requires that evidence can be authenticated by “describing a process or
system and showing that it produces an accurate result.” Id. at 7. According to Defendant,
evidence from Defendant’s expert Spencer shows that this data does not accurately report
coverage. Id. at 8. Moreover, the evidence shows “average coverage” data is not cumulative, but
resets to zero when a new cartridge is inserted. Id. at 11.
Indeed, evidence involving computerized data “raise[s] unique issues concerning accuracy and
authenticity.” Manual for Complex Litigation (Fourth) § 11.447 (2004). However, Defendant’s
challenges to the “average coverage” data—namely, its accuracy and the fact that the number
resets when a new cartridge is installed—do not fit within the authentication rule. For example,
where a party challenged the accuracy of the results of a computer program, the Ninth Circuit
held that “[a]ny question as to the accuracy of the [evidence], whether resulting from incorrect
data entry or the operation of the computer program, . . . affect[s] only the weight of the
printouts, not their admissibility .” United States v. Catabran, 836 F.2d 453, 458 (9th Cir. 1988).
Similarly, the fact that the “average coverage” number resets with each new cartridge only limits
its probative value. “[F]or authentication purposes, Rule 901(a) does not require the document to
be probative of a particular fact.” Lexington Ins. Co., 423 F.3d at 329.
“average coverage” number at this time, because I find that this number simply does not prove
what DiCuio alleges—that all six of the cartridges he purchased resulted in an average coverage
of 0.04%. Rather, the uncontroverted evidence submitted shows that the “average coverage”
number resets to zero when a new cartridge is inserted. Def. Ex. 88 (p. 2-12); Spencer Reb. Decl.
¶ 22. Defendant’s Service Reference Manual (Def. Ex. 88) shows that “when a new toner
cartridge is inserted after ‘Toner Life End’ is displayed,” the “coverage for each toner cartridge”
will reset to zero. Testing conducted by Defendant’s expert Spencer confirmed that the number,
in fact, resets when a new cartridge is inserted. Spencer Reb. Decl. ¶ 22. Accordingly, the
“average coverage” number only displays the average coverage for the currently installed toner
cartridge. DiCuio has not provided any evidence disputing this material fact.
Indeed, while the report shows the number of pages printed and the average coverage for
the “current” cartridges, there is nothing to show how many more pages the cartridges might
print or what the average would be. The report also shows the number of pages printed in
connection with the “previously used” color cartridges. However, contrary to DiCuio’s assertion,
the report does not show what the “average coverage” was for those cartridges. DiCuio’s
argument is entirely reliant on the “average coverage” number in the printer report. Yet this
“average coverage” number cannot prove the page yield DiCuio should have received from all of
his cartridges, over the lifetime of the printer. Based on this evidence alone, a reasonable jury
could not find that DiCuio suffered an “ascertainable loss.”
The only evidence DiCuio submits which supports his claim that the developer roller
failsafe results in an ascertainable loss is the opinion of his expert, Wong. According to Wong, a
user who prints only single-page print jobs will invariably suffer a loss if his or her average color
coverage is 4% or less. Wong Decl. at ¶ 8. However, Wong’s conclusions are drawn solely from
the technical limits described in Defendant’s Service Reference Manual.11 See id. These
limitations do not reflect the real-life printing habits of consumers, much less provide evidence
that DiCuio’s printing habits would lead to such results. Indeed, it is unlikely that most users are
printing only single-page jobs—DiCuio, for example, stated that most of his print jobs were four
to five pages. DiCuio Dep. at 119:17–19. Even if Wong’s opinion is accurate with respect to
users who primarily print single-page jobs—and because DiCuio was not such a user—this
evidence does not prove that DiCuio suffered an ascertainable loss.
Moreover, the evidence submitted by DiCuio tends to show that he did receive the
advertised page yield. DiCuio provided a single document sample in discovery, which, when
analyzed, showed color coverage of 5.81% for cyan, 5.95% for magenta, and 5.05% for yellow.12
If these numbers are an accurate representation of his average coverage, then DiCuio received
the advertised yield.13 While DiCuio argues that the single document is not representative of his
printing habits, there is no other evidence to show that his average color coverage for all of his
used cartridges was lower. Indeed, DiCuio’s own estimation was that his color coverage was
approximately 40%. See DiCuio Dep. at 166:10–18.
DiCuio thus has failed to demonstrate the average coverage of his printed documents, and
therefore he cannot show the corresponding page yield he should have received from each
The manual, notably, is not distributed to customers, but only to technicians who fix Brother
In their reply brief, Defendant gives the percentages as 11.2% for cyan, 10.2% for magenta,
and 10.1% for yellow, stating that the original analysis was “based on the 2-page copy produced
by Plaintiff instead of the original 1-page PDF file.” Either number, though, shows a percentage
of coverage higher than 5%.
At 5% coverage, DiCuio was entitled to receive 1,500 pages per cartridge. Using fewer than
seven sets of cartridges, DiCuio printed 13,299 pages, an average of 1,900 pages per set.
cartridge. Without this information, I cannot ascertain what loss, if any, DiCuio suffered from the
alleged misrepresentations or omissions of Defendant.
Because the record does not show a loss which is “capable of calcuation,” see
Thiedemann, 183 N.J. at 793, DiCuio’s New Jersey Consumer Fraud Act claim must be
dismissed. Furthermore, without any admissible evidence showing either reduced page yield or
which, if any, of the printer cartridges were purchased to replace non-depleted cartridges, DiCuio
has not shown that he suffered an injury-in-fact. DiCuio therefore also lacks standing to proceed
with the claim. To the extent that Defendant acted wrongfully in the design of the toner
cartridges, DiCuio has failed to show that he suffered any harm from Defendant’s actions.
Accordingly, Defendant’s Motion for Summary Judgment against DiCuio is granted.
Having found in favor of Defendant, I need not address Defendant’s alternative argument
that DiCuio’s claims should be dismissed because he allegedly engaged in spoliation of evidence
by discarding his used color cartridges, and failing to preserve his receipts, make notes, or keep
records. DiCuio S.J. Mot. at 8. For the sake of completeness, though, I will make two comments.
First, “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve
property for another’s use as evidence in pending or reasonably forseeable litigation.” Mosaid
Technologies, Inc. v. Samsung Electronics Co., Ltd., 348 F. Supp. 2d 332, 335 (D.N.J. 2004).
Accordingly, Defendant’s allegation that DiCuio failed to keep notes on his printer usage cannot
constitute spoliation; failing to create evidence does not constitute spoliation.
Moreover, while DiCuio’s failure to preserve his toner cartridges could have prevented
Defendant from analyzing such cartridges to disprove Plaintiffs’ claims, it is clear that DiCuio
recycled his cartridges as a matter of routine. Spoliation does not occur where “the destruction
was a matter of routine with no fraudulent intent.” Bull v. United Parcel Serv., 665 F.3d 68, 79
(3d Cir. 2012). Dismissal for spoliation is therefore unwarranted. As such, Defendant’s request
for fees in connection with the alleged spoliation, is denied.
SUMMARY JUDGMENT AGAINST PLAINTIFF BRYANT
Defendant argues that summary judgment should be granted against Plaintiff Angela
Bryant (“Bryant”) on three grounds. First, Defendant argues that Bryant lacks standing. Second,
Defendant asserts that the Illinois Consumer Fraud and Deceptive Business Practices Act
(“Illinois CFA”), rather than the NJCFA, applies to Bryant’s claim, and that Bryant cannot show
actual damages or causation under that statute. Finally, Defendant asserts that Bryant engaged in
spoliation. After discussing the factual background of Bryant’s claims, I shall address each
argument. However, because the arguments for standing and for “actual damages” under the
Illinois CFA are intertwined, I will address the choice of law question first.
A. Factual Background
Plaintiff Angela Bryant is an attorney and a resident of Illinois. Bryant SUMF at ¶ 8.
Bryant, or her husband, purchased a Brother-brand printer, model MFC-9440 (the “Bryant
printer”) in December 2008 from a Staples store in Illinois; the Bryant printer came with one
black and three color toner cartridges, all TN-110s. Id. at ¶ 9–10. Bryant produced records for 12
color cartridge purchases, which showed that she purchased two complete sets of color
cartridges, multiple single cartridges, and on one occasion, purchased two colors together. Id. at
¶ 12. While she may have purchased more cartridges than the records indicated, Bryant could not
produce any other records. Id at ¶ 13. Bryant indicated that it was generally her practice to
purchase toner cartridges only when the cartridge ran out. Bryant Dep. at 94:6–11. However, she
could not recall if all three colors had ever run out at the same time, though she stated they would
run out “within the same period of time.” Id. at 96:11–19. Bryant acknowledged that on the
occasions where she purchased three color cartridges simultaneously, she “may have simply just
purchased them at that point because maybe I did want to have them already in place. I’m not
certain.” Id. at 95:2–4. On multiple occasions, after seeing the “toner life end” signal, Bryant
would shake the cartridge before reinserting it, and would be able to print more pages. Bryant
Dep. at 175:23 to177:19.
Bryant used the printer for both work-related and personal printing. Id. at ¶ 16. Her color
printing, which accounted for approximately 40% of her printing, sometimes included
documents with a high percentage of color toner. Id. at ¶¶ 17–18. Bryant estimated that her
average print job was approximately 5 pages. Reply to Bryant Statement of Undisputed Material
Facts (hereinafter “Bryant Repl. SUMF”) at ¶ 19. Bryant submitted “a collection of random
documents that [she had] printed off of [her] Brother printer,” which she stated were “typical to
me.” Bryant Dep. at 19:15–17, 35:13. These documents showed a range of “average coverage”
from a single-page “syllabus” with .64% cyan, .56% magenta, and 0% yellow, to a thirty-eight
page PowerPoint presentation with 53.5% cyan, 47.4% magenta, and 33.7% yellow. Def. Ex. 24
(“Print Sample Coverage Analysis”).
The Bryant printer can display data, including total page count and total color page count.
Bryant SUMF at ¶ 24. In April 2013, Defendant’s expert consultants viewed and photographed
this data, which showed the following: the total page count of documents was 23,700; the total
color page count was 9,761; there were 5 replacements of the magenta and yellow toner
cartridges, and 4 replacements of the cyan toner cartridges. Id. at ¶¶ 24–25. Like the maintenance
report, the display also showed the “average coverage” data for each color: 0.05% for cyan,
0.04% for magenta, and 0.51% for yellow. Pl. Repl. Ex. X (Display Pictures from Bryant
Printer). According to the Service Reference Manual, the “average coverage” data in the MFC9440 resets to zero when a new cartridge is installed. Def. Ex. 88 (p. 2-12).
Bryant became a plaintiff in this lawsuit in December 2011. Bryant SUMF at ¶ 27. She
continued to use her printer up until April 2013, when she shipped it to her counsel’s office. Id.
at ¶ 28. She continued to purchase replacement cartridges as well. Id. at ¶ 29. Plaintiff did not
provide any of her used cartridges in discovery. Bryant Repl. SUMF at ¶ 33.
B. Choice of Law
The SAC is not clear as to whether each Plaintiff asserts only the claims from his or her
home state, or whether all Plaintiffs join in all the claims. Plaintiffs’ briefing on the summary
judgment motions shows each Plaintiff asserts a claim under the NJCFA, as well as under the
relevant consumer fraud statute of his or her own state. Defendant, however, argues that Bryant
and the other out-of-state Plaintiffs may not bring a claim under New Jersey law, but only under
the laws of their own states.
As a federal court sitting in diversity, I must apply the choice-of-law rules of New Jersey,
the forum state, which consists of a two-part “most significant relationship” test. Maniscalco v.
Brother Internat’l Corp., 709 F.3d 202, 206 (3d Cir. 2013). The first part of the test “is to
determine whether or not an actual conflict exists between the laws of the potential forums.” Id.
That is, the court must “examin[e] the substance of the potentially applicable laws to determine
whether ‘there is a distinction’ between them.” P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132,
143 (2008). In this context, I note that, contrary to Bryant’s assertion, “[c]ourts have recognized
that significant conflicts exist between the NJCFA and the consumer protection statutes of other
states.” In re Mercedes-Benz Tele Aid Contract Lit., 257 F.R.D. 46, 63 (D.N.J. 2009); see also
Fink v. Ricoh Corp., 365 N.J. Super. 520, 570–584 (Law Div. 2003) (illustrating “the numerous
differences between New Jersey law and that of the other states in the area of consumer fraud.”).
According to Defendant, “there are substantive conflicts between the NJCFA and Illinois’
consumer protection statute,” namely that the NJCFA provides the right to a jury trial, while the
Illinois law does not; the NJCFA does not require reliance, while the Illinois law does; and that
the NJCFA mandates attorney’s fees, while the Illinois statute permits fees, but only in the
discretion of the judge. Id.
Bryant asserts that there are no substantive conflicts between New Jersey and Illinois law.
According to Bryant, there is a right to a trial by jury in federal court for causes of actions under
the Illinois Consumer Fraud and Deceptive Business Practices Act (hereinafter “Illinois CFA.”)
Bryant Opp. at 17. Bryant further argues that the Illinois CFA does not require reliance, but
parallels the causation requirement under the NJCFA. Id. at 18. Bryant states that the attorney’s
fee provision does not create a conflict because “it is difficult to see how a court applying ICFA
could not award plaintiff attorneys’ fees once liability was found on the subject consumer fraud.”
Id. Bryant additionally contends that both laws prohibit similar acts. Id.
Bryant’s argument lacks merit. Both New Jersey state and federal district courts have
found a conflict between the NJCFA and the Illinois CFA. See Fink v. Ricoh Corp., 365 N.J.
Super 520, 573 (Law Div. 2003); In re Bayer Phillips Colon Health Probiotic Sales Practices
Litig., Civ. No. 11-3017, 2014 WL 5776153, at *4 n. 3 (D.N.J. Nov. 6, 2014). In Fink, the New
Jersey Superior Court noted that Illinois’s consumer fraud statute does not provide a right to jury
trial. 365 N.J. Super. at 573. And, in Bayer Phillips, the district court found that the relevant
differences were the right to a jury trial and further that the NJCFA provides for treble damages;
the Illinois CFA, in contrast, “is aimed primarily at compensating for actual damages.” 2014 WL
5776153, at *4 n. 3.
I agree that a conflict exists. It is true that the Northern District of Illinois has found that
the Seventh Amendment requires a jury trial on Illinois CFA claims when such claims are
brought in federal court, see Cellular Dynamics, Inc. v. MCI Telecommunications Corp., 1997
WL 285830 at *9 (N.D. Ill. May 23, 1997); this limits the conflict on that issue. However, there
is a conflict in the damages remedy. Treble damages are mandatory under the NJCFA, see
Ramanadham v. N.J. Mfgrs. Ins. Co., 188 N.J. Super. 30, 32 (App. Div. 1982). In contrast, under
the Illinois CFA, any punitive damages are not only discretionary, but in some courts are
awarded “only for conduct that is outrageous, either because the defendant's motive was evil or
the acts showed a reckless disregard of others' rights.” Kirkpatrick v. Strosberg, 894 N.E. 2d 781,
768 (App. Ct. Ill. 2008). Furthermore, the NJCFA’s provision of mandatory attorney’s fees
presents a conflict to the Illinois CFA’s allowance of discretionary fees. Compare Krautsack v.
Anderson, 223 Ill. 2d 541, 554 (2006) (listing factors trial court may consider in granting fees)
with N.J. Stat. Ann. 56:8-19 (“In all actions under this section . . . the court shall also award
reasonable attorneys’ fees.”). I therefore find that there are differences in the substance of the
two laws, and they are, thus, in conflict.
Having found that a conflict exists between the laws of different states, “the court must
determine which jurisdiction has the ‘most significant relationship’ to the claim.” Maniscalco,
709 F.3d at 206. The factors to consider are taken from the Restatement (Second) of Conflict of
Law § 148. Id. According to the Restatement, “when the plaintiff's action in reliance took place
in the state where the false representations were made and received, there is a presumption that
the law of that state applies.” Id. at 207 (internal quotation makes omitted). However, “when the
plaintiff's action in reliance takes place in a different state than where the false representations
were made and received” the court must weigh the following factors:
(a) the place, or places, where the plaintiff acted in reliance upon the
(b) the place where the plaintiff received the representations,
(c) the place where the defendant made the representations,
(d) the domicil, residence, nationality, place of incorporation and
place of business of the parties,
(e) the place where a tangible thing which is the subject of the
transaction between the parties was situated at the time, and
(f) the place where the plaintiff is to render performance under a
contract which he has been induced to enter by the false
representations of the defendant.
In Maniscalco, the Third Circuit determined the choice of law in a case where the
plaintiff, who resided in South Carolina, had sued BIC, a Delaware corporation with its principal
place of business and headquarters in New Jersey. Id. Initially, the Third Circuit found that
where a plaintiff “received and relied on BIC's representations in his home state . . . and there
was no evidence demonstrating that BIC made any omissions or misrepresentations in [that
state], the District Court properly applied” the second test. Id. at 208.
Next, the Maniscalco court explained that “three of the six contacts weigh strongly in
favor of applying South Carolina law”, namely: “(a) the place where [the plaintiff] acted in
reliance upon BIC's representations, (b) the place where [the plaintiff] received the
representations, and (e) the place where a tangible thing which is the subject of the transaction
between the parties was situated at the time.” Id. Factor (f) did not apply, and factor (d)
“weigh[ed] slightly in favor of applying South Carolina law” under § 148 cmt. i, which states
that where there is pecuniary loss “‘[t]he domicil, residence and place of business of the plaintiff
are more important than are similar contacts on the part of the defendant’ because ‘financial loss
will usually be of greatest concern to the state with which the person suffering the loss has the
closest relationship.’” Id. Finally, the Third Circuit found that “[a]ccepting [the plaintiff]’s
premise that there were actionable omissions by [Defendant] at its headquarters in New Jersey,
we conclude that this single contact—factor (c)—does not warrant applying New Jersey law.” Id.
Defendant, applying the six factors set forth above, argues that Illinois has the most
significant relationship to Bryant’s claims. Id. at 30. Defendant further asserts that the alleged
wrongdoing “did not even occur at BIC’s headquarters in New Jersey,” but instead that
Defendant’s parent company, Brother Industries, Ltd. (“BIL”), a Japanese corporation, is
responsible for the alleged misrepresentation. Id. at 31.
Bryant argues two factors that support a choice of New Jersey law: that Defendant
requires consumers who make purchases from its online site BrotherMall.com, and customers
who register their printers through www.brother-usa.com/RegisterMyBrother, are required to
submit to New Jersey Law. Bryant Opp. at 19. Bryant additionally contests Defendant’s claim
that BIL, rather than Defendant, is responsible for the claims at issue in this case. Id. at 15.
According to Bryant, Defendant’s senior executives are all located in New Jersey, including the
Senior Vice President of Marketing who is ultimately responsible for Defendant’s advertising
and the language on the printer and toner cartridge boxes. Id. at 16. Bryant also asserts that
personnel in New Jersey are “involved in writing the User’s Guides for the subject printer(s) in
that they provide input to parent BIL in their writing of the guides, they review the guides and
they approve the guides.” Id.
Because Bryant purchased her printer in Indiana, and there is no evidence demonstrating
that Defendant made any omissions or misrepresentations in that state, I will apply the six-factor
test employed by the Third Circuit in Maniscalco. Like in Maniscalco, these factors weigh in
favor of applying Illinois law. Under factor (a), the place, or places, where the plaintiff acted in
reliance upon the defendant's representations, Bryant purchased her printer and toner cartridges
in Illinois, and under factor (b), she also received the representations made by Defendant in
Illinois. These same facts apply to factor (e)—the place where a tangible thing which is the
subject of the transaction between the parties was situated at the time. Factor (f) does not apply,
as there is no contractual claim. Id. Factor (d)—the domicil, residence, nationality, place of
incorporation and place of business of the parties—also weighs in favor of applying Illinois law,
as “financial loss will usually be of greatest concern to the state with which the person suffering
the loss has the closest relationship.” Id. Finally, as in Maniscalco, assuming that Defendant
engaged in actionable omissions or misrepresentations at its headquarters in New Jersey, this one
factor is not sufficient for New Jersey law to apply over the law of Plaintiffs’ home states. Id.
The fact that Defendant required parties who went to its websites to submit to New Jersey
law does not change this analysis. The “Terms of Service” for the websites state that the Terms
govern “your purchase of products on this Site” or “your use of this website.” See Pl. Resp. Exs.
S, T, U. Bryant does not claim to have purchased her printer from Defendant’s online site, nor to
have registered her printer through Defendant’s website. Therefore, the choice of law provisions
of these websites do not apply. Moreover, these choice of law provisions do not, in and of
themselves, give New Jersey a more significant interest in the litigation than a plaintiff’s home
Therefore, I will apply Illinois law to Bryant’s claim.
B. Standing and Actual Damages Under the Illinois CFA
Defendant has challenged both Bryant’s standing to bring a claim and the elements of her
claim under the Illinois CFA, specifically, the actual damages element. Because these arguments
are interrelated, I will address them together.
I have already discussed the elements of standing, supra, in section B of DiCuio’s
Motion. The elements of a claim under the Illinois CFA are: “(1) a deceptive act or practice by
the defendant, (2) the defendant's intent that the plaintiff rely on the deception, (3) the occurrence
of the deception in the course of conduct involving trade or commerce, and (4) actual damage to
the plaintiff (5) proximately caused by the deception.” Avery v. State Farm Mut. Auto. Ins. Co.
835 N.E.2d 801, 850 (Ill. 2005). “In order to sustain a private cause of action under the [Illinois
Consumer Fraud] Act, a plaintiff must prove that he or she suffered ‘actual damage as a result of
a violation of [the] Act.’” Id. at 858–59 (quoting 815 Ill. Comp. Stat. 505/10a(a)). “Because
actual damages is an element of the claim, plaintiff must allege that she has been harmed in a
concrete, ascertainable way.” Frye v. L’Oreal USA, Inc., 583 F. Supp. 2d 954, 957 (N.D. Ill.
2008). That is, the alleged deception must have made the plaintiff “tangibly worse off”; the
damage may not be “predicated on mere speculation, hypothesis, conjecture or whim.” Id.
In one Illinois case, as an example of the loss element, the plaintiff had purchased jewelry
on QVC, and alleged that QVC’s listed “retail value” overstated the prevailing market prices for
the products. Mulligan v. QVC, Inc., 888 N.E.2d 1190, 1192 (Ill. App. 2008).The Illinois court
found that the plaintiff had not suffered actual damage because “the prices she paid were indeed
lower than the prices at which she purportedly could have purchased comparable products in the
marketplace.” Id. at 1197. Accordingly, the plaintiff “paid less than the actual value of the
property and, therefore, had no pecuniary loss in the bargain.” Id. at 1198.
As with DiCuio, Defendant argues that Bryant lacks standing, because she was not
injured by purchasing Brother-brand products. Bryant S.J. Mot. at 15. According to Defendant,
Bryant “received a yield of color pages from fewer than six full sets of color cartridges that met
or exceeded the collective advertised performance.” Id. Defendant points out that one of Bryant’s
sample documents showed extremely high color coverage. Id. at 4. In addition, Bryant testified
that she did not recall ever seeing the printer signal that all three cartridges went out at the same
time. Id. at 16. Thus, Defendant contends that, because Bryant’s cartridges exceeded the
advertised page yield, Bryant did not suffer “actual damages,” as required by the Illinois CFA.
Id. at 35.
In response to Defendant’s position, Bryant raises largely the same arguments as DiCuio.
Based on Plaintiffs’ expert opinions, Bryant asserts that her printer is designed such that the
developer roller unnecessarily rotates so that the printer will reach the failsafe limit. See Bryant
Opp at 1–3. In addition, like DiCuio, Bryant claims that the evidence shows she experienced
simultaneous life-ends of multiple cartridges. Id. at 6. She notes that on two occasions, she
purchased three color cartridges at one time, and that on an additional occasion, she purchased
two color cartridges at the same time. Id. at 5. Because her deposition testimony indicates that
her habit was to only purchase toner cartridges as needed, Bryant argues that these purchases
indicated simultaneous life-ends of the toner cartridges. Id. at 5–6.
Defendant, again, disputes the claims made by Plaintiffs’ experts. However, as with
DiCuio, I accept as true for this motion the claim that the developer roller mechanism may cause
the color toner cartridges to signal “life end” sooner than is necessary to replace the cartridges.
Nonetheless, as I discussed with DiCuio, the experts’ generalized opinions are insufficient to
show that Bryant suffered actual damages from this mechanism. The fact that the toner cartridges
reached life-end more quickly than they would have in the absence of the developer roller
failsafe is, in and of itself, insufficient to show “actual damages.” Similarly, while I accept for
the purpose of this motion that Bryant may have experienced simultaneous life-ends of her
cartridges14, the simultaneous life-ends of the cartridges do not show that Bryant experienced any
“actual damages.” As with ascertainable loss under the NJCFA, if Bryant received the full value
of her toner cartridges—i.e., the represented page yield—she cannot claim to have suffered any
concrete ascertainable harm resulting from Defendant’s alleged deceptive act or practice.
Also like DiCuio, Bryant alleges that Defendant deceived her regarding the page yield;
that is, she did not obtain the advertised 1500 pages at 5% coverage promised for TN-110
cartridges. The only support Bryant relies on to show page yield for her printer is the data
displayed by her printer, which is equivalent to the maintenance report produced by other
Plaintiffs’ printers. See Spencer Decl. at ¶ 16(d). Photographs of this data display show that at
the time the printer was examined by the experts, it had printed 9,761 color pages. See Def. Ex.
21, pg. 510. The data display also showed that the “average coverage” for each color was 0.05%
for cyan, 0.04% for magenta, and .51% for yellow. Pl. Repl. Ex. H, p. 3–5.15 Relying on
Defendant’s Service Reference Manual to show that page yield is linear, and that at 1%
coverage, a user should expect to receive 7,500 pages, Bryant calculates that she was “entitled to
print at least 75,000 color pages” with her five full sets of color cartridges. Id. at 10. Bryant
I note, however, that Bryant also testified that she may have bought multiple cartridges simply
to have them on hand. Def. Opp. at 14
Unlike the maintenance reports provided from the other Plaintiffs’ printers, no evidence has
been provided to show the number of pages printed for the current or previously installed
additionally asserts that she “is entitled to diminished value of the printer she purchased . . .
because it is designed to deprive the consumer of the advertised color yield.” Id. at 11.
This argument is substantially the same as DiCuio’s argument under the “ascertainable
loss” prong of the NJCFA, and suffers from the same flaw: the uncontroverted evidence
submitted shows that the “average coverage” number resets to zero when a new cartridge is
inserted. Def. Ex. 88 (p. 2-12); Spencer Reb. Decl. ¶ 22. Accordingly, the “average coverage”
number only displays the average coverage for the currently installed toner cartridge. Even
assuming that the relationship between coverage and page yield is linear, as Plaintiffs contend,
this “average coverage” number cannot be used to prove the page yield Bryant should have
received from all of her cartridges, over the lifetime of the printer. Based on this evidence alone,
a reasonable jury could not find that Bryant suffered “actual damage.”
Like DiCuio, the other evidence presented shows that Bryant likely received the
advertised page yield. The sample documents submitted by Bryant showed enormous variation in
color coverage16, but, if these documents are representative of her printing habits, they show that
she printed, on average, more than 5% color coverage. See Def. Ex. 24 (“Print Sample Coverage
Analysis”). While Bryant argues that these documents are not representative of her printing
habits17, there is no other evidence to show that her average color coverage for her documents
Specifically, Bryant submitted which had the following average percent color coverage: a
syllabus, which showed 0.64% cyan, 0.56% magenta, 0.00 yellow; a Chicago Journal webpage,
with 7.60% cyan, 8.02% magenta, and 8.08% yellow; a Chicago Phoenix webpage, with 6.94%
cyan, 6.95% magenta, and 8.79% yellow; and a PowerPoint presentation which showed 53.5%
cyan, 47.4% magenta, and 33.7% yellow.
I note that at Bryant’s deposition, she stated that stated that these documents were “typical to
me” but also “random.” Bryant Dep. at 19:15–17, 35:13
Bryant thus failed to demonstrate the average coverage of her printed documents, and
therefore she cannot show the corresponding page yield she should have received from each
cartridge. Without this information, I cannot ascertain that Bryant suffered any loss from the
allegedly deceptive acts or practices of Defendant.
Because the record does not show the Bryant was “harmed in a concrete, ascertainable
way.” Frye v. L’Oreal USA, Inc., 583 F. Supp. 2d at 957, Bryant’s Illinois Consumer Fraud and
Deceptive Business Practices Act claim must be dismissed. Furthermore, without any admissible
evidence showing either reduced page yield or which, if any, of the printer cartridges were
purchased to replace non-depleted cartridges, Bryant has not shown that she suffered an injuryin-fact. Bryant therefore also lacks standing to proceed with the claim. To the extent that
Defendant acted wrongfully in the design of the toner cartridges, Bryant has failed to show that
she suffered any harm from Defendant’s actions. Accordingly, Defendant’s Motion for Summary
Judgment against Bryant is granted.
Having already found that summary judgment must be granted against Bryant, I need not
address the argument on causation. I note, however, Bryant’s testimony that “[m]y understanding
on the date of purchase was that I would be able to achieve 2500 pages maximum.” Bryant Dep.
at 52:12–17. Because she did not understand Defendant’s representation of page yield at the time
of purchase, it is unlikely that Bryant could show that she was deceived by the representation
that the yield for color cartridges was 1,500 pages, and that defendant’s conduct was a but-for
cause of her harm. See Shannon v. Boise Cascade Corp., 805 N.E.2d 213, 218 (Ill. 2004) (to
state a claim under Illinois CFA “proof of actual deception of a plaintiff is required.”); Price v.
Phillip Morris, Inc., 848 N.E.2d 1, 52 (Ill. 2005) (Illinois CFA requires “but-for” causation, for
which “the relevant inquiry is whether the harm would have occurred absent the defendant’s
E. Attorney’s Fees
Defendant argues that it is entitled to attorney’s fees under the Illinois CFA. Bryant S.J.
Mot. at 38. Acknowledging that a showing of bad faith is required for a defendant to be granted
attorney’s fees, Defendant argues that “Plaintiff acted in bad faith by suing on false claims and
failing to preserve relevant evidence.” Id. Defendant therefore requests that this Court make a
finding of bad faith so Defendant may later present evidence regarding the amount of the fees.
Id. at 39. Bryant does not respond to this request.
Under the Illinois CFA, a defendant, unlike a plaintiff, may be awarded fees “only if the
trial court makes a threshold finding that the plaintiff acted in bad faith.” Krautsack, 861 N.E.2d
at 647. To explain the difference in treatment between plaintiffs and defendants, the Illinois
Supreme Court reasoned that “a prevailing plaintiff has already proven that the defendant is
guilty of consumer fraud,” while “[a] prevailing defendant . . . has not necessarily established
anything more than that the plaintiff's efforts at suit were unsuccessful.” Id. at 646–47. However,
“[c]ourts have not specifically defined ‘bad faith’ in this context.” Goldberg v. 401 N. Wabash
Venture LLC, Civ. No. 09-6455, 2013 WL 5376556 at *2 (N.D. Ill. Sept. 25, 2013). The Illinois
Supreme Court has stated that bad faith is not limited to the “pleadings, motions and other
papers,” finding that such a rule would be “too narrow.” Krautsack, 861, N.E.2d at 648. In the
same case, the Illinois Supreme Court also declined to adopt an “oppressive” standard
promulgated by the Seventh Circuit: “Even if a suit is brought in good faith, it could be so
lacking in merit or so burdensome to defend against as to be oppressive, in which event the
defendant would have a powerful equitable claim to recover a reasonable attorneys’ fee.” Id. at
647 (quoting Door Systems, Inc. v. Pro-Line Door Systems, Inc., 126 F.3d 1028, 1030 (7th Cir.
Under any standard, though, there is no evidence to support the allegation that Bryant
acted in bad faith. While the evidence did not support her claim, all this shows is that “plaintiff's
efforts at suit were unsuccessful.” Krautsack, 861 N.E. at 647. Defendant has further failed to
show that Bryant’s failure to preserve evidence was done in bad faith, see infra. Accordingly,
Defendant’s request for attorney’s fees is denied.
Because summary judgment must be granted on the Illinois CFA count, I need not
address Defendant’s argument on spoliation, which largely mirror its assertions against Plaintiff
DiCuio. I note again, however, that spoliation requires a showing of bad faith, and the burden to
show spoliation is on the party seeking the determination. Bull v. United Parcel Serv., 665 F.3d
68, 74, 77 (3d Cir. 2012). Defendant asserts that Bryant “chose to discard” her used cartridges
and receipts, Bryant S.J. Mot. at 20, yet Defendant has not produced any evidence to support this
assertion. It is clear that Bryant did not produce the cartridges or receipts18 in discovery. Bryant
SUMF at ¶ 30–31. However, nothing in the record shows whether she routinely recycled19 her
cartridges, whether the cartridges and receipts were simply lost, or even if Bryant had
deliberately withheld them. Without any evidence on the question of good faith, a finding of
spoliation would be improper.
While Bryant could not produce the paper receipts, she did produce records of twelve
purchases from her Staples Rewards account. See Def. Ex. 60.
Bryant points to an interrogatory response which stated that she did, in fact, recycle her
cartridges on one occasion. Bryant Opp. at 28.
SUMMARY JUDGMENT AGAINST PLAINTIFF POCILUYKO
As with the other Plaintiffs, Defendant argues that Plaintiff Pociluyko lacks standing to
bring her claim. In addition, Defendant asserts that Plaintiff cannot make her claim under
multiple elements of the Indiana Deceptive Consumer Sales Act. I shall address each claim in
A. Factual Background
Karen Pociluyko (“Karen” or “Pociluyko”), currently a resident of Michigan, is suing
over a Brother-brand color laser printer model number HL-4070CDW (“Pociluyko printer”).
Pociluyko Summary of Undisputed Material Facts (“Pociluyko SUMF”) at ¶¶ 9, 12. The
Pociluyko printer was purchased on January 7, 2010, at a Fry’s Electronics Store in Indiana. Id.
at ¶ 13. The Pociluyko printer was purchased with a credit card belonging to Terry Pociluyko
(“Terry”), who was, at the time, in a relationship with Karen Pociluyko.20 Id. at ¶¶ 8, 14, 23. Ms.
Pociluyko did not formally reimburse Terry. Pociluyko Reply to SUMF at ¶ 15. The Pociluyko
printer came with a set of three color toner cartridges; Terry21 purchased a replacement set of
color toner cartridges in May 2011 at a Staples in Michigan. Pociluyko SUMF at ¶¶ 17, 18. Both
sets of cartridges were TN-110; the advertised yield for TN-110 cartridges is 1,500 pages at 5%
coverage. Id. at ¶ 29.
At the time of the purchase, Karen was a resident of Indiana, and Terry was living in a
separate state. Pociluyko Dep. at 20:4–13. The printer was originally purchased for “personal
use,” and Karen was the primary user, although Terry would sometimes use it when visiting
Terry and Karen Pociluyko married in December 2010. Id. at ¶ 8. Terry Pociluyko was a
named plaintiff in the FAC, but withdrew his claims prior to the filing of the SAC. Id. at ¶ 9.
It is unclear whether the credit card used to purchase the printer and the replacement cartridges
belonged to Terry or to his business. Pociluyko SUMF at ¶¶ 19–22.
Karen. Id. at 20:4–23, 21:17–18. In April 2011, Karen moved to Terry’s home in Michigan; at
that time, she began to use the printer primarily for her husband’s business. Id. at 25:15 to 26:3,
The Pociluyko printer was used with the original toner cartridges until May 2011.
Pociluyko SUMF at ¶ 25. In May 2011, the printer indicated that the toner was empty and
stopped functioning. Pociluyko Dep. at 84:1–8. Karen could not recall whether the message
specified that a particular color cartridge had run out, but she purchased a full set of new color
cartridges. Id. at 84:12–19. Karen installed the second color cartridge set, but could not recall if
she attempted to replace only one color first. Id. at 85:10–23. Pociluyko SUMF at ¶ 25. In
November or December of 2011, the printer again indicated that it was out of toner. Pociluyko
Dep. at 92:6–9. At that point, Karen placed black electrical tape over the optical sensor windows
of the second color cartridge set and continued to use them. Id. at 92:17–18. Eventually, the
printer again displayed a “toner end of life” message, at which point Karen placed tape over the
optical sensor window of the original toner cartridges and reinstalled them. Id. at 87:20 to 88:9.
The Pociluyko printer only ever used these two sets of color cartridges. Pociluyko SUMF at ¶ 28.
Defendant’s experts acknowledged that the second set of cartridges must have hit the developer
roller failsafe, because she disabled the optical sensor mechanism by taping over the windows.
Cooper Decl. at ¶ 45.
A maintenance report from the Pociluyko printer indicated that it had printed a total of
6,140 color pages. Pociluyko SUMF at ¶ 33. The maintenance report also indicated that the
“average color coverage” for each color was 0.04%. Def. Ex. 20 (Pociluyko Maintenance
Report). Karen indicated that since moving to Michigan, she printed manuals for her husband’s
business approximately once a month. Pociluyko Dep. at 51:12–21. When given a page from one
such manual, Karen stated that the color coverage was “obviously more than 5% I would think,
but I don’t know ‘cause I don’t have any measurements.” Id. at 115:3–5. Defendant’s expert
calculated the color coverage as 5.56% cyan, 4.62% magenta, and 3.88% yellow.
In addition, Defendant’s experts weighed both sets of Karen’s toner cartridges, finding
that the second set weighed less than the original set. Spencer Decl. at ¶ 17.
Defendant argues that Karen Pociluyko lacks standing under Article II because she was
not the purchaser of the printer. Pociluyko S.J. Mot. at 4. According to Defendant, Terry, rather
than Karen, purchased the Pociluyko printer and the second cartridge set. Id. at 11. Thus,
according to Defendant, Karen did not suffer any injury in fact caused by the unnecessary
purchase of new toner. Id.22
Karen, in response, asserts that the Pociluyko printer was purchased primarily for Karen’s
personal use, and that it was used primarily for her personal use until she moved to Michigan in
April 2011. Pociluyko Opp. at 6. In addition, Karen alleges that the decision to purchase the
printer was made jointly between Karen and Terry. Id. She argues that she and Terry used
Terry’s card for some purchases, and Karen’s card for others, each thereby offsetting the items
the other person paid for. Id. at 7. Moreover, Karen notes that the Indiana statute does not require
a direct transaction between the plaintiff and defendant. Id. at 7. She further points out that
Defendant additionally asserts that Karen cannot show that she purchased “unnecessary” toner,
because her cartridges exceeded their advertised yield. Id. at 5. Because this argument, which
largely mirrors the arguments against DiCuio and Bryant, is so intertwined with the substantive
state law question, I shall address it in the section on the Indiana Deceptive Consumer Sales Act
“other courts have found that recipients of gifts and of spousal purchases have standing to bring
claims under state consumer fraud statutes.” Id.
I have already discussed the general requirements to show standing, supra. I further note
that even where state laws permit a private party to pursue a cause of action without an
individualized injury, Article III of the Constitution “limits the jurisdiction of the federal courts
to “cases and controversies,” a restriction that has been held to require a plaintiff to show, inter
alia, that he has actually been injured by the defendant's challenged conduct.” Lee v. American
Nat’l Ins. Co., 260 F.3d 997, 1001 (9th Cir. 2001). Thus, “a plaintiff whose cause of action is
perfectly viable in state court under state law may nonetheless be foreclosed from litigating the
same cause of action in federal court, if he cannot demonstrate the requisite injury.” Id. at 1001–
02. Accordingly, whether Karen has standing to bring suit under Indiana law is irrelevant to the
question of Article III standing. The cases cited by Karen to show that a gift recipient may have
standing under state consumer fraud statutes are only examining whether a non-purchaser may
nonetheless be considered a “consumer” for the purpose of that statute. See Pociluyko Opp. at 7
n. 6.23 In federal court, however, the plaintiff must show some evidence that she herself suffered
an injury in fact.
However, the cases cited by Defendant to show that Karen lacks standing are similarly
unhelpful. These cases examined whether, in the context of class action lawsuits, plaintiffs have
standing “to recover for injuries associated with products they neither purchased nor used.”
Burke v. Weight Watchers Internat’l, Inc. 983 F. Supp. 2d 478, 482 (D.N.J. 2013); see also
Lieberson v. Johnson & Johnson Consumer Cos., 865 F. Supp. 2d 529, 537 (D.N.J. 2011). Here,
Curiously, all the cases cited by Pociluyko are Texas state court cases, although the Texas
statute is not at issue in this case.
in contrast, Karen is suing only for alleged injuries associated with a printer which she did, in
fact, use. The evidence shows that the printer was purchased primarily for Karen’s use; that for
over a year, Karen chiefly used the printer for her personal use; and that she continued to have
use of it for her own personal matters after moving in with Terry, although such matters ceased
to be the primary use. If, therefore, an injury was suffered from the alleged issues with the
printer, such injury was suffered, at least in part, by Karen Pociluyko.
As with the other Plaintiffs, whether any injury-in-fact occurred is a question that is
intertwined with questions of state law. I shall therefore determine which law applies, and
conduct my analysis on that basis.
C. Choice of Law
Defendant asserts that there are substantive conflicts between the NJCFA and the Indiana
Deceptive Consumer Sales Act (“IDCSA”). These include: that Indiana limits claims to
“consumer” transactions, while the NJCFA permits claims for business transactions; omissions
are not actionable under the IDCSA, but are under the NJCFA; the IDCSA requires pre-litigation
notice for certain claims, and the NJCFA does not; the IDCSA requires reliance in private
claims, while the NJCFA does not; and the two statutes have different measures of damages.
Pociluyko S.J. Mot. at 15. Pociluyko does not dispute these differences, but merely states that if
a choice of law analysis must be performed at this stage, “New Jersey law governs.” Pociluyko
Opp. at 15.
The differences described by Defendant are substantive. In particular, the fact that the
IDCSA limits “consumer transactions” to ones for “purposes that are primarily personal,
familial, charitable, agricultural, or household,” see Ind. Code § 25-5-0.5-2(a)(1), while the
NJCFA encompasses business transactions, see N.J. Stat. Ann. § 56:8-1, represents a conflict
here, as Defendant asserts that Terry purchased the printer as a business transaction. Similarly,
the IDCSA requires that a plaintiff provide written notice to a supplier, except in the case of
“incurable” deceptive acts. Ind. Code § 25-5-0.5-5(a). Defendant asserts that Pociluyko failed to
meet this requirement. New Jersey has no such requirement. The fact that these differences are
potentially outcome-determinative makes the conflict between the laws clear.
As with Bryant, supra, the factors to determine which state has the most significant
interest favor the state where Pociluyko purchased the printer, Indiana. Pociluyko therefore may
not make a claim under the NJCFA, and I will apply the IDCSA going forward.
D. Indiana Deceptive Consumer Sales Act
Defendant makes several arguments that Pociluyko does not have a claim under the
IDCSA. I will first address Defendant’s argument that Pociluyko failed to give the notice
required by the IDCSA. Because “the failure on the part of a consumer to give proper notice to
the supplier of an uncured deceptive act precludes the application of the statute altogether,”
Lehman v. Stroyer, 721 N.E.2d 365, 369 (Ind. Ct. App. 1999), I shall address that question first.
I first note that prior to July 2014, the IDCSA imposed liability only for discrete
categories of “deceptive acts”; there was no “general fraud” provision, and the statute did not
include deceptive omissions. See Lawson v. Hale, 902 N.E.2d 267, 274 (Ind. App. 2009). The
statute was amended in 2014 to include such a “catch all” provision, and to provide liability for
omissions. See 2014 Ind. Legis. Serv. P.L. 65-2014 (West). However, this suit was amended to
include a claim under the IDCSA in 2011. In Indiana, “[u]nless there are strong and compelling
reasons, statutes will normally be given prospective application.” Metro Holding Co. v. Mitchell,
589 N.E.2d 217, 219 (quoting Gosnell v. Indiana Soft Water Servs., 503 N.E.2d 879, 880
(1979)). There are no strong and compelling reasons to think that the amendments to the IDCSA
were intended to apply retroactively; indeed, both parties rely exclusively on the older version of
the law. Accordingly, I find that the prior version of the statute applies to this claim, and shall be
referenced herein as if it were still in effect.
The IDCSA requires plaintiffs to “given notice in writing to the supplier” which must
“state fully the nature of the alleged deceptive act and the actual damage suffered therefrom.”
Ind. Code. § 24-5-0.5-5(a). The purpose of the notice provision “act is to provide and facilitate
pre-complaint settlements of consumer actions wherever possible and to establish a limited
period during which such settlement may be accomplished.” McCormick Piano & Organ Co. v.
Geiger, 412 N.E.2d 842, 849 (Ind. Ct. App. 1980). In order to effectuate this purpose, “a literal
application of the notice provisions” is required. Id. Indeed, the question of notice “is an essential
element of plaintiff's statutory action.” Lehman, 721 N.E. at 369.
However, the statute does not require pre-suit notice where “the deceptive act is
incurable.” Ind. Code. § 24-5-0.5-5(a). An “incurable deceptive act” is “a deceptive act done by a
supplier as part of a scheme, artifice, or device with intent to defraud or mislead.” Ind. Code. §
25-5-0.5-2(a)(8). “Intent to defraud or mislead is thus clearly an element of an incurable
deceptive act.” Perry v. Gulf Stream Coach, Inc., 814 N.E.2d 634, 647 (Ind. Ct. App. 2004). The
Indiana Supreme Court has found that the distinction between the two terms is significant:
“Where a consumer has given the prescribed notice his statutory cause of action is predicated on
an “uncured deceptive act” and he need only prove commission of an act or practice which has
been defined as deceptive by [Ind. Code § 24-5-0.5-3(a)] in order to establish a prima facie
case.” McCormick, 412 N.E. at 849. In contrast, if a plaintiff fails to give notice “the consumer
must prove not only that a deceptive act was committed but also that it was done as part of a
scheme, artifice or device with the intent to defraud or mislead.” Id. The failure to provide notice
means that “an additional element of proof is imposed on [the plaintiff].” Id.
It is not disputed that no notice was provided to Defendant. Pociluyko S.J. Mot. at 28;
Pociluyko Opp. at 19. Pociluyko asserts that notice was not required—that the deceptive act was
“incurable”—because Defendant “knowingly misrepresented page yield of the printer” and
“knowingly failed to disclose known material facts” about the “phantom” developer roller
counts. Id. Pociluyko contends that “the intentional nature of Defendant’s misrepresentation are .
. . evident from the facts above, and from Defendant’s decision to now publish additional . . .
information to some consumers.” Id. Defendant, however, argues that the Second Amended
Complaint only alleges intent to defraud in connection with the “concealment, suppression or
omission of material facts.” Pociluyko S.J. Mot. at 28. Such omissions, Defendant asserts are not
actionable under the IDCSA, and therefore cannot be “incurable” deceptive acts. Id.
Indeed, Pociluyko’s claim that Defendant “fail[ed] to disclose known material facts”
does not constitute a deceptive act under the IDSCA. See Lawson, 902 N.E.2d at 274 (stating that
the IDCSA “does not apply to non-disclosures”). Furthermore, the IDCSA claim in the SAC only
refers to intent with respect to “concealment, suppression or omission of material facts.” SAC at
¶ 61 (“The promotion and release of the defective Printers and/or Cartridges into the stream of
commerce constitutes an unconscionable commercial practice, deception, false pretence,
misrepresentation, and/or concealment, suppression or omission of material facts with the intent
that others would rely upon such concealment, suppression or omission.” (emphasis added)).
Again, such omissions are not actionable. While Pociluyko now claims that misrepresentations
of page yield were also intentional, “[a] plaintiff may not amend his complaint through
arguments in his brief in opposition to a motion for summary judgment.” Bell v. City of
Philadelphia, 275 Fed. App’x 157, 160 (3d Cir. 2008).
Furthermore, even if the SAC could be read to allege an intent to misrepresent the page
yield, Pociluyko has not provided any evidence to show that such a misrepresentation was made
with the intent to defraud or mislead. “Where a person knowingly or recklessly makes false
representations which the person knows or should know will induce another to act, the finder of
fact may logically infer an intent to deceive.”24 Heckler & Koch, Inc. v. German Sport Guns
GmbH, No. 1:11-cv-01108, 2014 WL 7366578, at *8 (S.D. Ind. Dec. 24, 2014). Pociluyko
asserts that the “intentional nature of Defendant’s misrepresentations are evident” from the
failure to disclose the developer roller mechanism and the “phantom” rotations. Pociluko Opp. at
19. This is insufficient to show intent. Plaintiff has not pointed to any piece of evidence showing
that the alleged misrepresentation was made “knowingly” or “recklessly.” Indeed, the only
evidence provided to the Court which relates to the question of a knowing or reckless
misrepresentation is the deposition of Charles Stadler, Brother’s Vice-President of National
Service. Stadler stated that the developer roller count mechanism was not disclosed to customers
because “that’s a technical issue, it has no meaning to the customer.” Stadler Dep. at 85:15–16.
However, this statement does not show any reckless or knowing misrepresentation as to page
yield. In the absence of any evidence to suggest that Defendant’s alleged misrepresentation as to
page yield was made with the intent to defraud or misrepresent, Pociluyko cannot show that the
This definition was used in a case involving common law fraud. Indiana case law defining the
meaning of intent in the IDCSA is sparse; further, while common law fraud is not co-extensive
with consumer fraud, this definition adequately clarifies the meaning of “intent” in Indiana law
in a similar context.
allegedly deceptive act was “incurable.” Thus, notice was required under the IDCSA, and in the
absence of such notice, no claim can be brought. See Lehman, 721 N.E. 2d at 369.
Having found that summary judgment is required for lack of notice, I need not address
the remaining arguments raised by Defendant: that the IDSCA does not apply to purchases in
Michigan and therefore does not apply to the purchase of the second toner cartridge set; that
there was no “consumer transaction” in Indiana because the purchase of the printer was a
business transaction; and that Pociluyko has not suffered actual damages. I will, however, briefly
comment on the question of actual damages. Pociluyko’s claim that she suffered actual damages
is based on the same “average coverage” data relied on by DiCuio and Bryant. Accordingly, her
argument suffers from the same flaws—namely, that the “average coverage” data resets when a
new cartridge is inserted, and does not show the “average coverage” of all the used cartridges
over the lifetime of the printer. This number therefore does not show what page yield Pociluyko
should have received for all her cartridges. Thus, were I to examine the merits, I would find that
Pociluyko failed to show actual damages, and, further, lacks standing to bring a claim.
SUMMARY JUDGMENT AGAINST PLAINTIFF SELF
Plaintiff William Self, a Florida resident, purchased two Brother-brand printers. Self
Statement of Undisputed Material Facts (“Self SUMF”) at ¶ 9. In January 2009, Self purchased a
Brother 4040CN (“4040CN”) color laser printer for $239.99; the printer came with standard TN110 toner cartridges. Id. at ¶ 10–11. Self only used the 4040CN for a short period of time in
January 2009 before deciding that he wanted a printer that could do double-sided printing. Id. at
¶ 15. In February 2009, Self purchased a Brother 4070CDW (“4070CDW”) color laser printer
for $349.99; this printer also came with standard TN-110 toner cartridges. Id. at ¶¶ 12–13. Self
kept the 4040CN for potential use as spare parts. Id. at ¶ 16. Self bought only one set of
replacement cartridges, TN-115 color toner cartridges, in July 2009. Id. at ¶ 14.
The first set of toner cartridges that Self used in the 4070CDW were the partially used
TN-110 set from the 4040CN. Id. at ¶ 19. A few months later, the 4070CDW displayed a
message indicating “toner life end”; Self could not recall the date, but Defendant’s customer
service records indicated that he called on July 30, 2009 with a complaint about replacing the
cartridges. Id. at ¶ 20. Upon replacing one cartridge, he immediately got a message indicating
that another color had to be replaced; when he replaced the second cartridge, he received a
message saying the third one had to be replaced. Self Dep. at 10:6–13. Self then called Brother
“tech support,” which ultimately told Self to replace all three cartridges. Id. at 10:17 to 11:3.25
At a later date, the printer again showed a message indicating “toner life end”; Self could
not recall the exact date, but the Brother customer service records show he called about a toner
life end message on April 6, 2010. Self SUMF at ¶ 22. Self testified that “it was just like the first
time” and that upon changing one toner cartridge, the next one indicated it was at life end, until
he had changed all three cartridges. Self Dep. at 85:25 to 86:13. At that time, Self installed the
TN-115 cartridges. Self SUMF at ¶ 23. On or about July 27, 2012, Self received another toner
life end message, and stopped using the 4070CDW and the TN-115 cartridges. Id. at ¶ 24.
Self printed approximately 60 pages per week. Id. at ¶ 25. He testified that “everything I
printed was usually color because I didn’t know how to turn color off.” Self Dep. at 88:2–4.
When asked whether he “ha[d] any sense when you printed color pages what the percentage
Brother’s customer service records seem to indicate that Self only changed the cyan and
yellow cartridges on July 30, 2009, Def. Ex. 28 (Self Call Record); however, Defendant does not
argue this point.
coverage was,” Self responded “say 5 percent.” Id. at 97:13–16. Self further testified that while
the high yield cartridges were advertised as providing 4000 pages at 5% coverage, he only
“reasonably expect[ed]” to get about 2000. Id. at 96:24–25, 97:11–12.
Self became a plaintiff in this suit on December 21, 2011. Self SUMF at ¶ 30. He
continued to use the 4070CDW and the TN-115 cartridges after suing Brother. Id. at ¶ 33.
However, on or around July 27, 2012 Self traded in the 4070CDW at Staples in exchange for a
$50 credit towards the purchase of a new printer. Id. at ¶ 31. He also recycled all of the toner
cartridges. Id. at ¶ 32. Self printed a maintenance report when he replaced the first set of
cartridges in the 4070CDW; he did not save the report, but believes the page count number was
between 1200 and 1250 pages. Self Dep. at 95:7–12. Self additionally may have printed a
maintenance report for the printer on or around when he replaced the second set of toner
cartridges, but did not keep the report. Id. at 102:16–23. Self testified that he believed the second
set of TN-110 toner cartridges, also used in the 40070CDW, yielded 1200–1300 pages. Id. at
Self provided only the 4040CN, his other printer, in discovery. Id. at 14:13. The
maintenance report from that printer showed that he printed 5 pages total, 2 of which were in
color. Self 4040CN Maintenance Report (Graifman Decl. Ex. M). The report showed that the
“average coverage” for the two color pages printed with the 4040CN was 3.34% for cyan, 2.94%
for magenta, and 2.99% for yellow. Self also presented three sample documents; Defendant’s
expert, Spencer, analyzed these documents for their color composition. Print Sample Coverage
Analysis (Def. Ex 24). The coverage on these documents had the following ranges: cyan, 2% to
5%, magenta, 1% to 5%, yellow, .5% to 4%. Id.
Based on Self’s testimony that he printed, on average, 60 pages a week, that “everything”
was printed in color, and on the dates Self called Brother about his toner “life end” signals,
Defendant estimated the following page yields for Self’s color toner cartridges: for the set of
cartridges which shipped with the 4040CN, 1,500 pages; the set of cartridges which shipped with
the 4070CDW, 2,100 pages; the TN-115 (high-yield) cartridges, 7,200 pages. Self S.J. Mot. at 4.
B. Choice of Law
Defendant asserts that there are substantive conflicts between the NJCFA and the Florida
Deceptive and Unfair Trade Practices Act (“FDUTPA”). Self S.J. Mot. at 24. Defendant points
to the NJCFA’s treble damages provision, and the fact that only plaintiffs may recover attorney’s
fees. Id. In addition, Defendant states that the NJCFA permits recovery for any “ascertainable
loss” where there is a “causal nexus” to a prohibited act, while the FDUTPA does not permit
consequential damages. Id.
Self asserts that the statutory differences are illusory here. Self Opp. at 17. Self argues,
that he is only seeking actual damages, not consequential damages. Id. Furthermore, Self asserts
no conflict with regard to the trebling of damages or attorney’s fees because Florida courts award
a fee multiplier to prevailing plaintiffs. Id. This multiplier, though unexplained by Self,
presumably negates the treble damages distinction. In addition, Self argues that Florida courts
award fees to prevailing defendants only where the claims are frivolous. Id. Self, like Bryant,
also asserts that New Jersey law should apply because Defendant requires consumers who use its
websites to submit to New Jersey law. Id. at 18.
The NJCFA entitles prevailing plaintiffs to treble damages, N.J. Stat. Ann. § 65:8-19,
while the FDUTPA merely provides for recovery of “actual damages.” See Fla. Stat. § 501.211.
It is not clear why the award of a fee multiplier to prevailing plaintiffs would negate this
distinction. In particular, the treble damages affects the plaintiff’s recovery, while an attorney fee
multiplier is awarded for a plaintiff’s counsel and merely increases the defendant’s loss. This
conflict, on its own, would be sufficient to require a choice-of-law analysis. In addition,
however, the NJCFA mandates recovery of attorney’s fees only for prevailing plaintiffs, N.J.
Stat. Ann. § 65:8-19, while the FDUTPA permits either party to recover attorney’s fees, Fla.
Stat. § 501.2105. Self is incorrect in asserting that fees are only awarded to prevailing defendants
if the claims are frivolous. See Human Soc’y of Broward Cnty, Inc. v. Fla. Humane Soc’y, 951
So. 2d 966, 970–71 (Fla. Dist. Ct. App. 2007) (rejecting argument that FDUTPA entitles
prevailing fees to defendants “only if the plaintiff's statutory claim is frivolous or groundless”);
see also Colomar v. Mercy Hosp., Inc., 335 Fed. App’x 29, 31 (11th Cir. 2009) (applying
multiple factors from Humane Soc’y to determine whether defendant is entitled to attorney’s
fees). I therefore find that the two statutes are in conflict.
As discussed in the Bryant Summary Judgment section, supra, the six Restatement
factors support applying the law of Self’s home state, Florida. Accordingly, I will examine Self’s
claim under the FDUTPA.
C. Standing and Actual Damages Under the Florida Deceptive and Unfair Trade
A claim under the FDUTPA has three elements: “(1) a deceptive act or unfair practice;
(2) causation; and (3) actual damages.” Kenneth F. Hackett & Assoc., Inc. v. GE Capital Info.
Tech. Solutions, Inc., 744 F. Supp.2 d 1305, 1312 (S.D. Fla. 2010). Under Florida case law, the
measure of “actual damages” is “the difference in the market value of the product or service in
the condition in which it was delivered and its market value in the condition in which it should
have been delivered according to the contract of the parties.” Rodriguez v. Recovery
Performance & Marine, LLC, 38 So. 3d 178, 180 (Fla. Dist. Ct. App. 2010) (quoting Rollins,
Inc. v. Heller, 454 So.2d 580, 585 (Fla. 3d DCA 1984)). That is, Florida uses a “benefit of the
bargain” measure. Dorestin v. Hollywood Imports, Inc., 45 So. 3d 819, 826 (Fla. Dist. Ct. App.
Defendant asserts, as it does with the other Plaintiffs, that Self lacks standing and cannot
show actual damages under the FDUTPA. First, Defendant argues that the color toner cartridges
“performed as advertised. Self S.J. Mot. at 7. Moreover, according to Defendant, Self “claims
damages measured by the entire retail value of every Brother-brand product he purchased.” Id. at
31. Self, Defendant asserts, “made no attempt during discovery to quantify any diminution in
value caused by his purportedly receiving less than the advertised page yield.” Id. at 31. Nor,
Defendant argues, has Self “limited his damages to the cost of cartridge purchased to replace
those that had not performed as advertised,” because Self has no evidence of such damages. Id.
Like the other Plaintiffs, Self argues that, based on Plaintiffs’ expert opinions, the printers
are designed so that the developer roller unnecessarily rotates, and hence reaches the failsafe
limit. Self Opp. at 3–5. However, as with the other Plaintiffs, the expert’s generalized opinions
are insufficient to show that Self suffered actual damages from this mechanism.
In addition, Self asserts that “he did not receive the number of pages promised for his
TN-110 cartridge[s].”26 Id. at 22–23. Like the other Plaintiffs, Self asserts that the page yield
number is linear—that is, if the cartridges yield 1,500 pages at 5% coverage, they should yield
3,000 pages at 2.5% coverage. Id. at 7. Based on this formula, Self provides two calculations of
loss. The first calculation uses the “average coverage” data obtained from the 4040CN
Self does not, apparently, claim any losses from the TN-115 cartridges.
maintenance report, which showed the following “average coverage” percentages: 3.34% for
cyan, 2.94% for magenta, and 2.99% for yellow. Id. Based on these percentages, Self asserts that
he should have received the following number of pages for each cartridge: 2,245 for cyan, 2,551
for magenta, and 2,508 for yellow. Id. Using Defendant’s estimate for the number of pages Self
printed—1,500 pages for the set of cartridges that shipped with the 4040CN printer, and 2,100
pages for the set of cartridges that shipped with the 4070CDW printer—Self asserts that he did
not receive the page yield promised. Id. at 8, Table 2.
I must emphasize that Self did not produce the 4070CDW printer—the only printer he
used regularly—in discovery. Accordingly, there is no hard data to support Self’s claims that he
suffered a loss; all the numbers and calculations provided by the parties are estimates. Even
accepting these numbers as true, however, Self has failed to show that he suffered actual damage.
As has already been stated, the “average coverage” data from the maintenance reports
does not support Plaintiffs’ page yield argument, because the “average coverage” number resets
to zero when a new cartridge is inserted. More importantly, the “average coverage” number
provided to support Self’s argument is taken from his 4040CN printer, which only printed two
pages in color. This data cannot show the average coverage Self received while using his
4070CDW printer. Because Self only used his toner cartridges with the 4070CDW printer (save
5 pages printed with the 4040CN), the 4040CN “average coverage” number cannot be used to
calculate the page yield he received from the cartridges.
Self also provides a second calculation based on the percent coverage analysis done on
Self’s sample documents. Assuming that the samples provided by Self in discovery are
representative27, Self asserts that his average color coverage was 2.87% for cyan, 2.5% for
magenta, and 1.5% for yellow. Id. Again, using a linear formula, Self alleges that using these
numbers, he should have received 2613 pages for the cyan cartridges, 3000 pages for the
magenta cartridges, and 5208 pages for the yellow cartridges. Id.
This second calculation, though, is also invalid. In order for this calculation to accurately
show that Self received an average color coverage of less than 5% for each color, these
documents must be representative of the printing Self performed.28 However, Self testified that
the sample documents were not “the typical sorts of pages” that he printed every week, but were
merely “random things I grabbed off so I could show you guys.” Self Dep. at 126:25 to 127:4. In
the absence of any testimony to show that these documents are mathematically proportional to
the documents Self ordinarily printed, they do not demonstrate the average coverage he received
from using the 4070CDW printer or either set of the TN-110 cartridges.29
The way Self reached these numbers is as follows: Self provided three sample documents
which are identified in Def. Ex. 24 as a five page “Toyota email,” a single page “Turbo Tax”
email, and a two page “SW airlines” webpage. The Toyota email has 2% coverage of cyan; the
Turbo Tax email has 3% coverage of cyan, and the SW airlines webpage has 5% coverage of
cyan. Def. Ex. 24, Print Sample Analysis. Self assumed that out of every eight pages he printed,
five pages would have 2% coverage, one page would have 3% coverage, and two pages would
have 5% coverage. Averaging these numbers, Self calculated that the “average coverage” per
page printed for cyan is 2.87%.
Notably, Self is the only Plaintiff to rely on the average color coverage of his sample
documents in order to show what page yield he should have received; each of the other Plaintiffs
asserted that the average color coverage of their sample documents should not be used in this
manner because the samples were not representative of their printing habits.
Defendant also argues that Self “was not damaged in any way by the purchase of the
4040CN.” Self S.J. Mot. at 7. While Self, in response, claims that “his 4040CN printer with
original cartridges was incapable of providing him the full represented color yield for any color
cartridge,” Self Opp. at 12, it appears from Self’s arguments that the only damages Self alleges
for the purchase of the 4040CN printer relate to the page yield of the cartridges—that is, Self
does not assert that the printer itself had a diminished value separate and apart from the
diminished value of the cartridges.
Thus, Self failed to demonstrate the average coverage of his printed document, and
therefore cannot show “the difference in the market value of the product . . . in the condition in
which it was delivered and its market value in the condition in which it should have been
delivered.” Rodriguez, 38 So. 3d at 180. In the absence of such information, an element of the
FDUTPA claim is lacking, and summary judgment must be granted in Defendant’s favor. In
addition, without evidence of actual damages, Self cannot show that he suffered an injury-in-fact.
Self therefore lacks standing to bring a claim.
Although I have already found in Defendant’s favor, I shall briefly address the spoliation
issue. Defendant argues that Self engaged in spoliation by discarding the 4070CDW printer, and
used color cartridges. Self S.J. Mot. at 15. However, bad faith is a necessary component of
spoliation, and the burden is on Defendant to provide evidence of this element. See Bull v.
United Parcel Serv., 665 F.3d at 77, 79. Self testified that “I didn’t know that you guys would
need the printers,” and that no one told him that he was not supposed to discard relevant
evidence in this case. Self Dep. at 15:8–16. While this testimony strongly suggests that Self’s
counsel failed to thoroughly explain his duty to preserve relevant evidence30, it does not show
bad faith. Moreover, even if Self’s action constituted spoliation, negligent spoliation is
insufficient to merit dismissal. See Klett v. Green, 2012 WL 2476368 at *11 (“because the Court
has found that Plaintiff, at best, negligently spoiled the evidence, . . . dismissal is not
appropriate.”). I therefore conclude that Self’s claim cannot be dismissed for spoliation.
Self’s opposition brief states that “Plaintiff’s counsel advised all Plaintiffs to preserve
evidence related to the action.” Self Opp. at 23.
Because Self is unable to show “actual damages” as required by the FDUTPA, and is
likewise unable to show an injury-in-fact as required for Article III standing, summary judgment
is granted for Defendant.
For the reasons stated above, Defendant’s motions for summary judgment against
Plaintiffs DiCuio, Bryant, Pociluyko, and Self are granted, and each of Plaintiffs’ claims are
therefore dismissed. Having dismissed the claims of the named Plaintiffs, these plaintiffs cannot
stand as class representatives. Hence, the motion for class certification is moot, as are the
motions to strike portions of Plaintiffs’ evidence.
An appropriate order shall follow.
Date: May 27, 2015
_/s/ Freda L. Wolfson___________
Hon. Freda L. Wolfson, U.S.D.J.
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