Nathan v. KitchenAid, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ERIC NATHAN, , :

Plaintiffs,

Case No. 3:19-cv-226

v. :

JUDGE WALTER H. RICE

WHIRLPOOL CORPORATION,

Defendant. :

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN

PART WHIRLPOOL CORPORATION’S MOTION TO DISMISS

PLAINTIFFS’ AMENDED CLASS ACTION COMPLAINT (DOC. #21);

PLAINTIFFS GIVEN LEAVE TO AMEND COMPLAINT WITHIN 30

CALENDAR DAYS

Plaintiffs Eric Nathan, Chris Smith, William Johnson, Richard Tschernjawski

and Judith Anderson filed suit against Whirlpool Corporation on behalf of

themselves and similarly-situated purchasers of certain KitchenAid blenders.1 The

Amended Class Action Complaint asserts numerous claims of breach of express

and implied warranty, negligent misrepresentation, consumer fraud, and unjust

enrichment. Doc. #17.

This matter is currently before the Court on Whirlpool Corporation’s Motion

to Dismiss Plaintiffs’ Amended Class Action Complaint, Doc. #21.

1 Whirlpool manufactures the KitchenAid brand of appliances.

I. Background and Procedural History

In the First Amended Class Action Complaint, Plaintiffs allege that Whirlpool

represents, in its marketing materials and on its product packaging, that two series

of its KitchenAid blenders (“the Blenders”) are more powerful than they actually

are. The product packaging states that the Pro Line series has a 3.5 peak

horsepower motor, and the High Performance Series has a 3.0 peak horsepower

motor. Plaintiffs, however, maintain that “Defendant’s misrepresentation of ‘peak’

horsepower does not reflect the Blenders’ actual horsepower output while in

household operation.” Doc. #17, PageID#194. According to Plaintiffs, the actual

horsepower output in the of the Blenders is considerably less.

Plaintiffs further contend that Whirlpool’s representations are “designed to

mislead consumers into believing the Blenders have much more power than they

actually have, leading to consumers overpaying for Blenders and/or causing

consumers to purchase the Blenders instead of other manufacturers’ blenders or

less expensive blenders.”

Plaintiffs filed suit under the Class Action Fairness Act, 28 U.S.C.

§ 1332(d).2 They seek certification under Fed. R. Civ. P. 23(b)(2) and (b)(3) of a

nationwide class, and various subclasses of purchasers from Maryland, Virginia,

Illinois, Wisconsin, New York and Ohio. The Amended Class Action Complaint,

Doc. #17, asserts claims of breach of express warranty (Counts I-8), breach of

2 Plaintiffs estimate that there are thousands of putative class members across

the United States and the aggregate amount in controversy exceeds $5 million.

implied warranty (Counts 9-13), negligent misrepresentation (Count 14), statutory

consumer fraud (Counts 15-20), and unjust enrichment (Counts 21-25).

Whirlpool has moved to dismiss all counts pursuant to Fed. R. Civ. P. 9(b)

and 12(b)(6). Doc. #21. That motion to dismiss is fully briefed and ripe for

decision. Docs. ##22, 23.

II. Fed. R. Civ. P. 12(b)(6)

Federal Rule of Civil Procedure 8(a) provides that a complaint must contain

“a short and plain statement of the claim showing that the pleader is entitled to

relief.” The complaint must provide the defendant with “fair notice of what the

. . . claim is and the grounds upon which it rests.” ,

550 U.S. 544, 555 (2007) (quoting , 355 U.S. 41, 47 (1957)).

Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal

of a complaint on the basis that it “fail[s] to state a claim upon which relief can be

granted.” The moving party bears the burden of showing that the opposing party

has failed to adequately state a claim for relief. , 487 F.3d

471, 476 (6th Cir. 2007) (citing , 946 F.2d 451, 454-55 (6th Cir.

1991)). The purpose of a motion to dismiss under Rule 12(b)(6) Ais to allow a

defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief

even if everything alleged in the complaint is true.@ , 988 F.2d

635, 638 (6th Cir. 1993). In ruling on a 12(b)(6) motion, a court must “construe

the complaint in the light most favorable to the plaintiff, accept its allegations as

true, and draw all reasonable inferences in favor of the plaintiff.”

695 F.3d 531, 538 (6th Cir. 2012) (quoting , 487 F.3d at

476).

Nevertheless, to survive a motion to dismiss under Rule 12(b)(6), the

complaint must contain “enough facts to state a claim to relief that is plausible on

its face.” , 550 U.S. at 570. Unless the facts alleged show that the

plaintiff’s claim crosses “the line from conceivable to plausible, [the] complaint

must be dismissed.” Although this standard does not require “detailed factual

allegations,” it does require more than “labels and conclusions” or “a formulaic

recitation of the elements of a cause of action.” at 555. ARule 8 . . . does not

unlock the doors of discovery for a plaintiff armed with nothing more than

conclusions.@ , 556 U.S. 662, 678-79 (2009). Legal conclusions

Amust be supported by factual allegations@ that give rise to an inference that the

defendant is, in fact, liable for the misconduct alleged. . at 679.

In ruling on a motion to dismiss, the Court may consider “the Complaint and

any exhibits attached thereto, public records, items appearing in the record of the

case and exhibits attached to defendant's motion to dismiss so long as they are

referred to in the Complaint and are central to the claims contained therein.”

, 528 F.3d 426, 430 (6th Cir. 2008).

III. Discussion

A. Warranty Claims (Counts 1-13)

1. State Law Claims of Breach of Express and Implied Warranty

(Counts 1, 3-12)

Counts 1, 3, 4, 5, 6, 7 and 8 of the First Amended Complaint assert what

appear to be common law claims of breach of express warranty.3 Plaintiffs

generally allege that the representations concerning peak horsepower constitute

express warranties, that Whirlpool breached those express warranties by failing to

provide conforming goods, and that Plaintiffs were damaged as a result. Counts 9,

10, 11 and 12 assert what appear to be common law claims of breach of implied

warranty.4 Plaintiffs generally allege that Whirlpool has breached implied

warranties that the goods conform to representations made and are fit for their

intended purpose.

In its Motion to Dismiss, Whirlpool argues that all of these state law claims

must be dismissed because they are governed by the Uniform Commercial Code

(“UCC”) and cannot be pled at common law.

, 43 F. Supp. 3d 575, 615 (D. Md. 2014);

3 Count 1 is brought on behalf of a nationwide class, Count 3 on behalf of the

Maryland class, Count 4 on behalf of the Virginia class, Count 5 on behalf of the

Illinois class, Count 6 on behalf of the Wisconsin class, Count 7 on behalf of the

New York class, and Count 8 on behalf of the Ohio class.

4 Count 9 is brought on behalf of the Maryland class, Count 10 on behalf of the

Virginia class, Count 11 on behalf of the Illinois class, and Count 12 on behalf of

the Ohio class.

, No. 3:14cv368, 2014 WL 4748530, at *2 (E.D. Va. Sep. 23, 2014);

, 105 F.3d 382, 385 (7th Cir. 1997);

, 807 N.E.2d 1165, 1168 (Ill. App. Ct. 2004);

, 582 F. Supp. 208, 213-14 (E.D. Wis. 1984);

, No. 14-cv-99, 2015 WL 9255571, at

*5 (W.D. Wis. Dec. 18, 2015); , No. 17-CV-4708,

2018 WL 6199557, at *4 (E.D.N.Y. Nov. 28, 2018);

, 917 F.2d 235, 256 (6th Cir. 1990); ,

114 Ohio St. 3d 266, 2007-Ohio-3609, 871 N.E.2d 1141, ¶26 (Ohio 2007).

Plaintiffs concede that these claims are governed by the UCC rather than

common law. They argue, however, that the absence of citations to the UCC

statutes of each state does not transform their claims into common law claims.

Nevertheless, Plaintiffs seek leave to amend their Complaint if the Court believes

otherwise.

Based on the above citations, the Court finds that, in pleading these claims

as common law claims, Plaintiffs have failed to state a claim upon which relief may

be granted. Counts 1, and 3-12 are subject to dismissal on this basis. The only

question is whether Plaintiffs should be given leave to amend their Complaint to

plead some, or all, of their breach of express warranty and breach of implied

warranty claims under the UCC.

Although the Court must freely give leave to amend when justice so

requires, Fed. R. Civ. P. 15(a), it need not grant leave if amendment would be

futile. , 371 U.S. 178, 182 (1962). Here, Whirlpool argues that it

would be futile to give Plaintiffs leave to amend their Complaint to assert these

claims under the UCC because: (a) Plaintiffs failed to satisfy UCC notice

requirements; (b) as to Counts 3, 5-6 and 11-12, Plaintiffs lack the requisite

privity; and (c) as to Counts 1 and 3-8, the additional information included in the

Blenders’ Use and Care Guides is fatal to any express warranty claims under the

UCC.5

a. Notice Requirements

Under the UCC, a buyer is barred from any remedy if he fails to notify the

seller of the breach within a reasonable time after he discovers or should have

discovered the breach. MD Code, Commercial Law, § 2-607(3)(a); VA Code

Ann. § 8.2-607(3)(a); 810 ILCS § 5/2-607(3)(a); W.S.A. § 402.607(3)(a);

McKinney’s Uniform Commercial Code § 2-607(3)(a); R.C. § 1302.65(C)(1).

“What is a reasonable time for taking any action depends on the nature, purpose

and circumstances of such action. UCC § 1-204(2).

On March 22, 2019, counsel for Plaintiffs Eric Nathan and Richard

Tschernjawski sent Notice of the alleged breach to KitchenAid, on behalf of

Nathan, Tschernjawski “and all similarly situated consumers nationwide,” Doc.

5 The Court notes that, even if Plaintiff had properly pled their claims under the

UCC, Whirlpool would likely have raised these same arguments in a motion to

dismiss.

#21-3, PageID##377-78.6 The first question is whether this letter is sufficient to

satisfy the notice requirement as to the named Plaintiffs—Chris Smith, who

asserted a breach of express warranty claim (Count 5) and a breach of implied

warranty claim (Count 11) on behalf of an Illinois class, William Johnson, who

asserted a breach of express warranty claim on behalf of a Wisconsin class (Count

6), and Judith Anderson, who asserted a breach of express warranty claim (Count

8) and a breach of implied warranty claim (Count 12) on behalf of an Ohio class.

Citing , No. 12-MD-

2413, 2013 WL 4647512 (E.D.N.Y. Aug. 29, 2013), Whirlpool argues that the

failure of Smith, Johnson and Anderson to provide individual pre-suit notice to

Whirlpool is fatal to their warranty claims. Notably, Plaintiffs make no effort to

respond to this argument.

In , the court, albeit in dicta, found that notice sent by an attorney

on behalf of his California client “and other consumers,” was “likely insufficient” as

to those “other consumers.” at *28. , 317 F.

Supp. 3d 1042, 1055 (W.D. Wis. 2018) (“[T]he notice requirement is

individualized . . . In a class action, the question whether a given class member

provided reasonably timely notice would be particular to that individual, and would

presumably require that each plaintiff actually have provided notice.”);

6 Given that this Notice is referred to in the Amended Class Action Complaint,

Doc. #17, PageID#224, and is central to Plaintiffs’ claims, the Court may consider

it without converting the motion to dismiss into a motion for summary judgment.

528 F.3d at 430.

675 N.E.2d 584, 590 (Ill. 1996) (holding that the notice

requirement is satisfied “only where the manufacturer is somehow apprised of the

trouble with the particular product purchased by a particular buyer.”);

, 713 F. Supp. 2d 1305, 1316 (D.N.M. 2010) (plaintiff’s

theory, that the filing of a previous lawsuit that was never certified as a class

action constituted sufficient individual notice under UCC § 2-607(3) for all class

members, was “dubious” and would likely fail “under the law of one or more

jurisdictions.”); , No. 4:12-MD-2380,

2014 WL 3557189, *8 (M.D. Pa. July 17, 2014) (dismissing one named plaintiff’s

warranty claims “for failure to allege that he provided independent notice of the

breach prior to initiation of the litigation.”).

Based on these cases, the Court concludes that the March 22, 2019, notice

is insufficient as to Plaintiffs Smith, Johnson and Anderson. Plaintiffs’ proposed

amendment, asserting breach of express warranty claims and breach of implied

warranty claims under the UCC instead of under common law, would not cure this

defect. The Court therefore DISMISSES Counts 5, 6, 8, 11 and 12 WITH

PREJUDICE.7

The Court turns next to the breach of warranty claims brought by Plaintiffs

Eric Nathan and Richard Tschernjawski. Nathan brought breach of express

7 The Court does not reach Whirlpool’s alternative argument that amendment of

Counts 5, 6, 11 and 12 would be futile because Plaintiffs lack the requisite privity.

warranty claims and breach of implied warranty claims on behalf of a Maryland

class (Counts 3 and 9) and a Virginia class (Counts 4 and 10).8 Plaintiff Richard

Tschernjawski brought a breach of express warranty claim on behalf of a New

York class (Count 7).

Although it is undisputed that Nathan and Tschernjawski sent Notice of the

alleged breaches to Whirlpool prior to filing suit, Whirlpool argues that their claims

are not viable because: (1) the factual allegations included in the Amended Class

Action Complaint are insufficient to show that they notified KitchenAid within a

reasonable time after they discovered or should have discovered the breaches; and

(2) the 16-month delay between the date Nathan purchased the Blender and the

date he notified Whirlpool of the alleged breach, and the 10-month delay between

the date Tschernjawski purchased the Blender and the date he notified Whirlpool

are unreasonable as a matter of law.9

Whirlpool notes that neither the March 22, 2019, letter, nor the Amended

Class Action Complaint indicates Nathan and Tschernjawski discovered the

alleged breaches. In , No. 16-cv-6941, 2017 WL 6988936

(S.D.N.Y. Dec. 27, 2017), the court held that “[s]ince Plaintiffs fail to allege any

facts that would permit the Court to conclude that they notified Pfizer of the

8 Although Nathan is a resident of the State of Maryland, he purchased his

Blender in Virginia. Doc. #17, PageID#195.

9 According to the First Amended Complaint, Nathan bought his Blender on

November 24, 2017, Doc. #17, PageID#195, and Tschernjawski bought his

Blender on May 28, 2018. at PageID#197. They did not notify Whirlpool of

the alleged breaches until March 22, 2019. Doc. #21, PageID##377-78.

alleged breaches within a reasonable time after discovering them, they are barred

from any remedy.” at *23 (internal quotation omitted). Whirlpool argues that

the same is true here.

Given that this alleged pleading defect can be easily cured by the filing of a

Second Amended Complaint, the Court turns instead to the second issue

of whether the 16-month and 10-month delays between the dates the Plaintiffs

bought their Blenders and the date they notified Whirlpool of the alleged breaches

were unreasonable as a matter of law.

What constitutes a reasonable time for notifying the seller of the breach is

typically a question of fact for the jury. However, “[w]here the facts are

undisputed and but one inference can be drawn therefrom as to the reasonableness

of the notice, the question is one of law.”

, 497 F. Supp. 58, 61 (D. Md. 1980). ,

491 F. Supp. 63, 65 (W.D. Va. 1980) (holding that whether notice was given

within a reasonable time is ordinarily a “question of fact reserved for the jury,” but

“if the evidence is clear, the court can rule as a matter of law that a party failed to

give proper notice.”).

Whirlpool cites to a number of cases that have held that delays of 5-12

months were unreasonable as a matter of law. , 754

N.W.2d 220, 233 (Wis. Ct. App. 2008) (10 months);

., 236 N.E.2d 303, 306 (Ill. App. Ct. 1968) (6

months); ., 57 F. Supp. 2d 459, 467

(N.D. Ohio 1999) (between 10 and 12 months);

., 22 A.D.2d 864, 864 (N.Y. App. Div. 1964) (5

months).

Under the circumstances presented here, however, the Court cannot find

that the delay in giving Whirlpool notice of the alleged breach was unreasonable as

a matter of law. As previously noted, Nathan and Tschernjawski have not yet

indicated when they actually discovered the alleged breaches. Whirlpool argues

that, regardless of when that occurred, they should have discovered the breaches

and provided notice long before March 22, 2019. Plaintiffs correctly point out,

however, that the average consumer lacks experience estimating horsepower.

Accordingly, it may not have been immediately obvious that the horsepower in the

Blender pitchers did not match the horsepower advertised on the box. In the

Court’s view, a jury will have to determine whether Nathan and Tschernjawski

gave notice within a reasonable time after they discovered or should have

discovered the alleged breaches.

Accordingly, with respect to the issue of adequate notice, the Court finds

that it would not necessarily be futile to allow Plaintiffs to amend their Complaint

to assert Counts 3, 4, 7, 9 and 10 under the UCC.

b. Privity

Whirlpool argues that there is an additional reason why it would be futile to

grant Plaintiffs leave to amend Count 3, Nathan’s breach of express warranty claim

brought on behalf of the Maryland class. Absent a claim of personal injury,

Maryland requires privity of contract in order to pursue an action for breach of

express warranty. , 273 Md. 277,

280, 329 A.2d 28 (1974); .,

576 F. Supp. 312, 322 (D. Md. 1983). The only recognized exceptions to this rule

are third-party beneficiaries, equitable estoppel, assignment, agency relationships,

and successors in interest. , No.

14-1518, 2015 WL 1472000, at *4 (D. Md. Mar. 30, 2015).

Nathan bought his Blender from Best Buy, a third-party retailer. Doc. #17,

PageID#195. Because he is not in privity with Whirlpool, and none of the

recognized exceptions applies, his claim is subject to dismissal.

, No. 17-938, 2019 WL 6529163, at * 6 (D. Md. Dec. 4, 2019) (dismissing

breach of express warranty claim against manufacturer where plaintiff failed to

establish privity of contract).

Nathan maintains that he relied on Whirlpool’s express statements

concerning the horsepower specifications and expected that Whirlpool, and not

Best Buy, would be the party responsible for providing warranty services. Doc.

#17, PageID#230. This, however, is insufficient to bring his allegations within one

of the recognized exceptions to the privity requirement. For example, he does not

allege that Whirlpool behaved in such a way that he was justified in believing that

Whirlpool was the actual seller, or that Whirlpool actually provided warranty

services to him at some point in time. , 2015 WL 1472000, at *4

(discussing scenarios in which an estoppel theory might apply).

Accordingly, the Court agrees with Whirlpool that it would be futile to allow

Plaintiffs to amend the Complaint to assert Count 3 under the UCC. Count 3 is

therefore DISMISSED WITH PREJUDICE.

c. Use and Care Guides

Finally, Whirlpool argues that it would be futile to allow Plaintiffs to amend

the Complaint to assert Counts 4 and 7 under the UCC because the additional

information included in the Blenders’ Use and Care Guides must also be considered

in determining the scope of the warranty, and is fatal to any breach of express

warranty claims.

Under the UCC, express warranties by the seller are created as follows: “(a)

Any affirmation of fact or promise made by the seller to the buyer which relates to

the goods and becomes part of the basis of the bargain creates an express

warranty that the goods shall conform to the affirmation or promise.” UCC § 2-

313(1). In addition, “(b) Any description of the goods which is made part of the

basis of the bargain creates an express warranty that the goods shall conform to

the description." Official Comment 7 to § 2-313, however, states, “[t]he

precise time when words of description or affirmation are made . . . is not material.

The sole question is whether the language . . . [is] fairly to be regarded as part of

the contract.”

Whirlpool maintains that the distinction between the peak horsepower in the

Blenders’ motors and the actual horsepower output in the Blenders’ pitchers is

explained in the Use and Care Guides, which are included inside the product

packaging and available on the KitchenAid website, and that this description must

fairly be regarded as part of the contract.

In support, Whirlpool submits an affidavit of one of its attorneys, Daniel

Guisbond. Doc. #21-1, PageID##333-34. He visited the web page associated

with the web address referred to in paragraph 64 of Plaintiffs’ Amended

Complaint. From that web page, he downloaded a copy of the Use and Care Guide

for the Pro Line Series Blender, Model No. KSB7068. The Use and Care Guide

contains a section entitled “Motor Horsepower.” It states:

Our 3.5 peak horsepower (HP) motor reference reflects the

horsepower output of the motor itself and not the Blender’s

horsepower output in the Blender pitcher. As with any blender, the

power output in the pitcher is not the same as the horsepower of the

motor itself. This motor delivers 2.45 peak HP in the pitcher enabling

your Blender to deliver robust power for all your recipes.

Ex. A to Guisbond Decl., Doc. #21-1, PageID#339.

The Court, however, cannot consider the content of the Use and Care

Guides on a motion to dismiss unless it converts the motion into a motion for

summary judgment. Fed. R. Civ. P. 12(d) (regarding presentation of matters

outside the pleadings not excluded by the court). Plaintiffs correctly point out that

the particular web page from which Guisbond accessed the Use and Care Guide is

not referenced in the Amended Complaint. As the court held in

, No. 16-cv-551, 2017 WL 1390699, at *2

n.1 (W.D. Wis. Apr. 18, 2017), for purposes of a motion to dismiss, a reference in

the complaint to one document contained on a website does not open the door for

the Court to consider all documents accessible from that same website.

Whirlpool’s argument is therefore premature. Although it can certainly be raised

again in a motion for summary judgment, it does not render futile Plaintiffs’ request

to amend their Complaint to assert Counts 4 and 7 under the UCC.

To summarize, the Court DISMISSES Counts 3, 5, 6, 8, 11 and 12 WITH

PREJUDICE. Counts 1, 4, 7, 9 and 10 are DISMISSED WITHOUT PREJUDICE.

The Court grants Plaintiffs leave to file a Second Amended Class Action Complaint

within 30 calendar days of the date of this Decision and Entry, to assert Counts 1,

4, 7, 9, and 10 under the UCC.

2. Magnuson Moss Warranty Act (“MMWA”) Claims

Count 2 asserts a breach of express warranty claim under the Magnuson

Moss Warranty Act (“MMWA”), 15 U.S.C. § 2301 , on behalf of the

nationwide class. Count 13 asserts a nationwide breach of implied warranty claim

under the MMWA. The MMWA “establishes a federal right of action for

consumers to enforce written or implied warranties against suppliers, warrantors,

or service contractors.” , 2007-Ohio-3609, ¶ 10,

114 Ohio St. 3d 266, 871 N.E.2d 1141.

The Sixth Circuit has held that the viability of a MMWA claim is directly

dependent on the viability of an actionable warranty claim under state law.

, 133 F. App'x 254, 268 (6th Cir. 2005) (“if there

exists no actionable warranty claim, there can be no violation of the Magnuson-

Moss Act.”). ., 534 F.3d 1017, 1022

(9th Cir. 2008) (holding that “claims under the Magnuson–Moss Act stand or fall

with [the] express and implied warranty claims under state law");

949 A.2d 26, 37-38 (Md. Ct. Spec. App. 2008) (same).

In conformity with the Court’s decision dismissing Counts 1, 4, 7, 9 and 10

(breach of express and implied warranty claims) without prejudice, the Court

likewise DISMISSES Counts 2 and 13, the MMWA claims, WITHOUT PREJUDICE

to refiling in a Second Amended Class Action Complaint, to be filed within 30

calendar days of the date of this Decision and Entry.

B. Negligent Misrepresentation (Count 14)

Count 14 of the Amended Class Action Complaint asserts a claim of

negligent misrepresentation on behalf of the nationwide class. Plaintiffs allege that

Whirlpool made false representations about the peak horsepower capabilities of the

Blenders and that Whirlpool knew or should have known that they were false and

misleading. Plaintiffs also allege that Whirlpool intended that consumers would

rely on the misrepresentations, and that the class members justifiably did so in

purchasing the Blenders, suffering damages as a result.

Whirlpool argues that this claim must be dismissed because Plaintiffs have

failed to identify which state’s law governs this nationwide claim. Whirlpool notes

that the laws of Maryland, Wisconsin, New York, Illinois and Ohio vary significantly

as to elements of a claim of negligent misrepresentation, and Virginia does not

recognize any such cause of action at all. , 317

F.R.D. 333, 352 (E.D.N.Y. 2016) (noting the “significant variations between the

laws of the fifty states” on claims of negligent misrepresentation);

, 846 F. Supp. 2d 1096, 1101-02 (C.D. Cal. 2012) (same). Whirlpool

maintains that, unless and until Plaintiffs identify which state’s law governs this

claim, it is impossible to discern whether the factual allegations are sufficient to

state a plausible claim for relief. The Court agrees.

Plaintiffs note that courts have certified a nationwide negligent

misrepresentation class in cases where there has been a uniform

misrepresentation. In support, they cite to , 318

F.R.D. 457, 509 (D. Utah 2017), and , 297 F.R.D. 561,

569-70 (S.D.N.Y. 2014). In both of those cases, however, the relevant issue was

whether common issues predominated such that class certification was

appropriate, not whether plaintiffs had stated a plausible claim for relief.

Moreover, in both of those cases, the court was evaluating claims arising under the

law of one particular state—Utah or New York. and are therefore

inapposite.

The Court agrees with Whirlpool that, because Plaintiffs have not identified

which state’s law would apply to the nationwide class, it is currently impossible to

determine whether they have stated a plausible claim for relief. Accordingly, the

Court SUSTAINS Whirlpool’s Motion to Dismiss, but DISMISSES Count 14

WITHOUT PREJUDICE to refiling within 30 calendar days of the date of this

Decision and Entry.

C. Statutory Consumer Fraud (Counts 15-20)

Counts 15 through 20 of the Amended Class Action Complaint assert claims

under the consumer fraud statutes of Maryland (Count 15), Virginia (Count 16),

Illinois (Count 17), Wisconsin (Count 18), New York (Count 19), and Ohio (Count

20). Plaintiffs allege that Whirlpool’s representations on the packaging, that the

Blenders have a “3.0 Peak HP Motor” or a “3.5. Peak HP Motor,” are deceptive

and misleading because they do “not reflect the Blenders’ actual horsepower

output while in household operation.” Doc. #17, PageID#194. Plaintiffs further

allege that these statements were material to a reasonable consumer and designed

to affect consumer decisions, and that Whirlpool’s conduct substantially injured

actual and potential consumers.

Whirlpool alleges that the statutory fraud claims are subject to dismissal

because: (1) Plaintiffs do not plead facts sufficient to plausibly allege that

Whirlpool’s statements could mislead or deceive a reasonable consumer; (2)

Counts 15-18 and 20 do not plead sufficient facts under Fed. R. Civ. P. 9(b) to

plausibly allege reliance and/or causation; and (3) Plaintiff Anderson’s Ohio claim

(Count 20) fails to identify a decision or rule finding the alleged conduct to be

deceptive or unconscionable. The Court rejects each of these arguments.

1. Sufficiency of Allegations that Representations Could Mislead or

Deceive a Reasonable Consumer

Although consumer fraud statutes vary among the states in some respects,

all require that plaintiffs “allege conduct that plausibly could deceive a reasonable

consumer.” ,

275 F. Supp. 3d 910, 920 (N.D. Ill. 2017) (collecting cases).

., 44 F. Supp. 3d 251, 257 (E.D.N.Y. 2014);

., 855 F. Supp. 2d 524, 558 (D. Md. 2012);

, 88 F. Supp. 3d 588, 591 (W.D. Va. 2015);

, 246 F.3d 934, 938 (7th Cir. 2001);

., 359 F. Supp. 3d 597, 602 (E.D. Wis. 2019);

., 2009-Ohio-5263, 920 N.E.2d 1023, at

¶ 19 (Ohio Ct. App. 2009). In its Motion to Dismiss, Whirlpool argues that

Plaintiffs do not plead facts sufficient to state a plausible claim that Whirlpool’s

representations about the horsepower of the Blenders’ motors could mislead or

deceive a reasonable consumer. The Court disagrees.

Whether a particular representation could deceive a reasonable consumer is

typically a question of fact to be decided by a jury. Only in “rare situations,”

where the alleged violation is “simply not plausible,” will a court be able to decide

this issue on a motion to dismiss. ., 70 F. Supp. 3d

1188, 1193 (N.D. Cal. 2014); ., No. 16-CV-894, 2016

WL 7157555, at *2 (S.D. Ill. Dec. 8, 2016) ("whether a reasonable consumer

would be deceived by a product label or a reasonable consumer’s understanding of

the term ‘natural’ are questions of fact that cannot be resolved pursuant to a

motion to dismiss"); ., No. 16-cv-3914, 2017 WL

4277187, at *4 (S.D.N.Y. Sept. 25, 2017) ("whether an interpretation is

unreasonable as a matter of law is generally reached [on a motion to dismiss] only

where, for instance, a plaintiff’s claims as to the impressions that a reasonable

consumer might draw are ‘patently implausible’ or unrealistic.");

., No. 4:12-md-2380, 2014 WL 3557189, at *12

(M.D. Pa. July 17, 2014) (“only in the clearest of cases is it proper for a court to

make a determination that a reasonable consumer is not likely to be misled at the

motion[-]to[-]dismiss stage”). This is not one of those rare cases in which the

question can be decided as a matter of law.

Whirlpool argues that the question of whether a particular representation

could deceive a reasonable consumer must be viewed “in light of the totality of the

information made available to the plaintiff.” , 396 F.3d

869, 884 (7th Cir. 2005). “[U]nder certain circumstances, the presence of a

disclaimer or similar clarifying language may defeat a claim of deception.”

, 714 F.3d 739, 742 (2d Cir. 2013).

The First Amended Complaint includes photographs of the boxes in which

the Blenders are packaged. On the box for the High Performance Series Blender,

there is an asterisk next to the reference to a “3.0 Peak HP Motor.” Likewise, on

the box for the Pro Line Series Blender, there is an asterisk next to the reference to

a “3.5 Peak HP Motor.” Each asterisk directs the consumer to “[s]ee the enclosed

Use and Care Guide for more details regarding blender use and performance.”

Doc. #17, PageID##204-05. As previously noted, the Use and Care Guides

distinguish between the peak horsepower of the Blender’s motor and the

horsepower output in the pitcher of the Blender. Doc. #21-1, PageID#339.

Whirlpool likewise argues that information available on the KitchenAid website

would have dispelled any notion that the actual horsepower delivered to the pitcher

of the Blenders was equal to the peak horsepower listed on the boxes.

Whirlpool cites to several cases in which courts have dismissed consumer

fraud claims after finding that disclaimers on the product packaging cured any

alleged deceit. For example, in , the court held

that the statement that the product contained “100% Grated Parmesan Cheese”

was ambiguous; however, the “readily accessible ingredients panel” on the

product, which disclosed the presence of non-cheese ingredients, cured any

ambiguity and defeated the consumer fraud claim. 275 F. Supp. 3d at 922-23.

Likewise, in , No. 16C6103, 2019 WL 1168103

(N.D. Ill. March 13, 2019), the court held that the representation that the product

was “Aloe Vera 100% Gel” was ambiguous. However, an asterisk on the label led

the consumer to other language on the back of the bottle stating that it also

contained “stabilizers and preservatives,” thereby dispelling any notion that the

product contained only aloe vera, and warranting dismissal of the consumer fraud

claim. at **4-5.

Whirlpool further argues that such disclaimers need not appear on the face

of the product packaging; instead, the disclaimers may appear in information

included inside that packaging. In support, Whirlpool cites to

, 856 N.Y.S.2d 22 (Table) (N.Y. Sup. Ct. Dec. 6, 2007), and

, 885 F. Supp. 2d 672, 674 (S.D.N.Y. 2012).

involved a claim that a cell phone service provider failed to inform its

customers selecting the 18-cents-per-minute plan that, in order to maintain service,

they would be required to deposit additional funds into their account, , “top it

up,” every ninety days even if the account still had a positive balance. This

requirement did not appear on the exterior packaging of the cell phone, but was

available on the website and contained in the Terms of Service booklet contained

in the package. The court held that, because the allegedly deceptive “topping up”

requirement was “fully revealed” in that booklet, the consumer fraud claim was

subject to dismissal. 856 N.Y.S.2d 22, at *5.

stemmed from the purchase of a prepaid Visa or MasterCard gift card.

The gift card packaging directed consumers to the enclosed Cardholder Agreement

containing Terms and Conditions of use. The Terms and Conditions warned that

some merchants may not allow cardholders to conduct split transactions, whereby

a consumer would pay a portion of the bill with the gift card and the remainder

with some other form of payment. Although this sometimes resulted in the

consumer being left with a balance that was too small to use, the consumer could

return the gift card to the company and would be given a check for the remaining

balance. The court therefore found that plaintiff had failed to state a plausible

claim under New York’s consumer fraud statute, because the alleged deception

resulted in no actual injury separate and apart from the alleged deception. 885 F.

Supp. 2d at 676-79. Citing , the court also noted that all of the terms of the

gift card were fully disclosed prior to plaintiff’s first use of the gift card. at 680.

Whirlpool argues that, as in and , its representations concerning

the peak horsepower of the Blenders’ motors must be read in conjunction with

disclaimers included in the Use and Care Guides and on the KitchenAid website.

Whirlpool’s argument, however, is premature. Although these disclaimers may

later be considered on a motion for summary judgment, the Court, for reasons

previously discussed, will not consider matters outside the pleadings in conjunction

with the motion to dismiss. at pages 14-15.10

Given the Court’s inability, at this juncture, to consider the specific

disclaimers that Whirlpool argues “would have dispelled any professed deception,”

Doc. #21, PageID#314, Whirlpool’s reliance on ,

, and is misplaced.

Moreover, even if the Court were to consider these disclaimers, it remains

unconvinced that this is the rare case in which it can be determined as a matter of

law that the allegedly deceptive representations would not have misled a

10 The Amended Class Action Complaint does refer to one web page that

discusses the “Powerful 3.5 Peak HP Motor” of the Pro Line Series Blender.

Double asterisks direct the reader to the following statement: “When testing the

actual blender power output at the blade using a dynamometer, a machine

laboratories use to measure mechanical power, this KitchenAid blender with its

heavy duty motor and advanced motor control board, produces more power than

the leading competitors.” Doc. #17, PageID#215. However, nothing in this

statement necessarily alerts the reader that the “actual blender power output at

the blade” is anything other than the 3.5 HP advertised on the box.

reasonable consumer. As the court noted in

, 2014 WL 3557189, at **11-12, most consumers have little

knowledge of achievable horsepower levels in a particular appliance. Plaintiffs

maintain that reasonable consumers would fail to appreciate the distinction

between the motor’s peak horsepower, as advertised on the box, and the

horsepower available inside the pitcher when the blender is in use. In the Court’s

view, under the circumstances presented here, a jury will have to determine the

extent to which any disclaimers included in the Use and Care Guides cure the

allegedly misleading representation of peak horsepower in the motors.

Accordingly, the Court rejects Whirlpool’s argument that Plaintiffs have

failed to plead facts sufficient to plausibly allege that Whirlpool’s statements could

mislead or deceive a reasonable consumer.

2. Sufficiency of Allegations of Reliance and Causation

Federal Rule of Civil Procedure 9(b) governs the pleading of claims of fraud.

It provides, in relevant part, “[i]n alleging fraud or mistake, a party must state with

particularity the circumstances constituting fraud or mistake.” Citing Rule 9(b),

Whirlpool argues that Counts 15-18 and 20, the consumer protection claims

brought under Maryland, Virginia, Illinois, Wisconsin and Ohio law, must be

dismissed because they do not plead sufficient facts under the heightened pleading

standards of Rule 9(b) to plausibly allege reliance and/or causation.

, 492 F. Supp. 2d 492, 509 (D. Md. 2007);

., 144 F. Supp. 3d 809, 845 (E.D. Va. 2015);

., No. 05C3004, 2006 WL 952032, at *3 (N.D. Ill. Apr.

12, 2006); ., No. 14-cv-379, 2015 WL 59361, at *5

(E.D. Wis. Jan. 5, 2015); ., No. 2:06-cv-751, 2007 WL

1974946, at *3 (S.D. Ohio Jul. 3, 2007) (Marbley, J.).

In order to succeed on their consumer fraud claims, Plaintiffs must prove

that the alleged misrepresentation was material in that it substantially influenced

their decision to purchase this particular product.

, No. 18-2575, 2019 WL 1427738, at *3 (D. Md. Mar. 29, 2019);

, 612 F.3d 932, 935 (7th Cir. 2010) (discussing Illinois law);

, 749 N.W.2d 544, 553 (Wis. 2008); ,

880 F. Supp. 2d 801, 868 (S.D. Ohio 2012) (Frost, J.).

Here, Plaintiffs allege that they each reviewed the packaging, including

Whirlpool’s representations concerning the horsepower of the Blenders, prior to

making their purchases. Plaintiffs Nathan and Smith further allege that they read

product descriptions and reviews of the Blenders. Doc. #17, PageID##195-96.

Each alleges that, absent the misleading horsepower representations, they would

not have purchased the Blenders or that they would have paid substantially less for

them than they did.

Whirlpool, however, argues that this is not enough, and that Plaintiffs must

plead specific facts to support these claims. For example, Whirlpool suggests that

Plaintiffs should indicate which other blenders they considered but did not buy, the

horsepower of those other blenders, and how much those other blenders cost.

In support, Whirlpool cites six cases, in which courts dismissed consumer

fraud claims based on the plaintiff’s alleged failure to adequately plead reliance on

the alleged misrepresentation. ., No. 13-02615, 2014

WL 3829520, at *22 (D. Md. Aug. 1, 2014); .,

No. 3:13-cv-00030, 2017 WL 354251, at *14 (W.D. Va. Jan. 23, 2017);

., 691 F. Supp. 2d 844, 852 (N.D. Ill.

2010); ., ., No. 06C5932, 2007 WL 1424614, at

*10 (N.D. Ill. May 14, 2007); ., No. 05C307, 2005 WL

2406145, at *4 (W.D. Wis. Sep. 28, 2005); .,

No. 2:07-cv-207, 2008 WL 11350242, at *4 (S.D. Ohio June 23, 2008) (Watson,

J.).

Having read these cases, the Court finds that none requires dismissal of

Plaintiffs’ claims. Unlike the plaintiffs in the cases cited by Whirlpool, Plaintiffs

have alleged the content of the misrepresentation, who made the

misrepresentation, when and where the misrepresentation was made, why it was

misleading and how it induced them to purchase the Blenders. This is all that is

required to satisfy the heightened pleading requirements of Rule 9(b). Whirlpool

has cited no cases in which the court has required plaintiffs to identify what other

purchase options were considered but not chosen. Accordingly, the Court rejects

Whirlpool’s claim that Counts 15-18 and 20 fall short of what is required by Rule

9(b).

3. Ohio Claim (Count 20)

Count 20 involves a consumer fraud claim brought by Plaintiff Judith

Anderson on behalf of an Ohio class, alleging violations of Ohio’s Consumer Sales

Practices Act (“OCSPA”). It is a violation of the OCSPA to represent that “the

subject of a consumer transaction has sponsorship, approval, performance

characteristics, accessories, uses, or benefits that it does not have." Ohio Rev.

Code Ann. § 1345.02(B)(1).

With respect to class action claims of consumer fraud, OCSPA provides as

follows:

(B) Where the violation was an act or practice declared to be

deceptive or unconscionable by under division (B)(2) of

section 1345.05 of the Revised Code before the consumer transaction

on which the action is based, or an act or practice

to violate section 1345.02, 1345.03, or 1345.031

of the Revised Code and committed after the decision containing the

determination has been made available for public inspection under

division (A)(3) of section 1345.05 of the Revised Code, the consumer

may . . . recover damages or other appropriate relief in a class action

under Civil Rule 23, as amended.

Ohio Rev. Code § 1345.09(B) (emphasis added).

Whirlpool argues that Count 20 is subject to dismissal because Plaintiff

Anderson does not identify any rule or decision declaring the relevant alleged

conduct to be deceptive or unconscionable under Ohio law.

As a threshold issue, the Court must determine whether Whirlpool’s

argument is premature. Plaintiffs maintain that this issue is better addressed in the

context of a motion for class certification or a motion for summary judgment. In

support, they cite to

, 684 F. Supp. 2d 942, 948-49 (N.D. Ohio 2009),

., No. 16-cv-1114, 2016 WL 6216135, at *4 (N.D. Ohio Oct. 25,

2016), and , No. 3:17-cv-699, 2019 WL 643709, at

*21 (D.N.J. Feb. 15, 2019) (construing the OCSPA).

and each relied on in

holding that arguments concerning the adequacy of notice under § 1345.09(B) are

inappropriate at the motion-to-dismiss stage. However, in , the court held

that dismissal of the OCSPA claim was inappropriate because: (1) the plaintiffs had

asserted individual class action claims under OCSPA, and a finding that the

notice to the defendant was insufficient under R.C. § 1345.09(B) as to the class

claims would not prevent the plaintiffs from moving ahead with their individual

claims; and (2) the law, at that time, was unclear concerning whether the class

action limitations set forth in R.C. § 1345.09(B) applied to actions filed in federal

court. , 684 F. Supp. 2d at 948-49.

Here, in contrast, Plaintiff Anderson has not asserted any individual claim

under the OCSPA. Doc. #17, PageID#263 (“Plaintiff Anderson and the Ohio

Class bring this count as a class action pursuant to Rule 23 . . . “). Accordingly, a

finding that notice was insufficient under § 1345.09(B) would be dispositive with

respect to this claim. Moreover, as Judge Smith noted in

, 863 F. Supp. 2d 677 (S.D. Ohio 2012), it has now been

determined that the class action limitations in § 1345.09(B) do apply to OCSPA

claims filed in federal court. at 693 (citing , 744 F.

Supp. 2d 733, 748-49 (N.D. Ohio 2010)). Accordingly, the Court finds no reason

to delay addressing the issue of the sufficiency of Plaintiffs’ allegations with

respect to Count 20.

In , 241 F. Supp. 2d 827, 837 (S.D.

Ohio 2003), Judge Marbley held that “[f]or class certification to be proper, the

prior decision or previously promulgated rule must have put the defendant on

notice that the specific conduct at issue violated [the CSPA].” The Ohio Supreme

Court has held that “[c]ases that involve industries and conduct very different from

the defendant’s do not provide meaningful notice of specific acts or practices that

violate the CSPA.” , 2006-Ohio-2869, 850

N.E.2d 31, ¶21.

In the Amended Class Action Complaint, Plaintiffs allege as follows:

410. Defendant was on notice before the filing of this suit that its

conduct in misleading consumers about the Blenders’ characteristics

was a violation of the Ohio Act. , 332 N.E.2d

380, 384 (Ohio Com. Pl. 1974) (concluding that defendant violated

the Ohio Act by misleading consumers about the quality of

appliances); ., No. 16-cv-1114, 2016

WL 6216135, at *4 (N.D. Ohio Oct. 25, 2016) (finding that

was sufficient to give defendant pre-suit notice that

misleading statements about an appliance’s characteristics had been

found to violate the Ohio Act).

411. Defendant was also on notice before the filing of this suit that

its conduct in misleading consumers about the Blenders’

characteristics was a violation of the Ohio Act because the actions

taken by Defendant are “an act or practice declared to be deceptive

or unconscionable by rule adopted under division (B)(2) of section

1345.05 of the [Ohio] Revised Code before the consumer

transaction on which [this] action is based.” Ohio Revised Code

§ 1345.09(B). Specifically, Ohio Administrative Code § 109:2-4-

02(A)(1) states:

It is a deceptive act or practice in connection with a

consumer transaction for a supplier, in the sale or offering

for sale of goods or services, to make any offer in written or

printed advertising or promotional literature without stating

clearly and conspicuously in close proximity to the words

stating the offer any material exclusions, reservations,

limitations, modifications, or conditions. Disclosure shall be

easily legible to anyone reading the advertising or

promotional literature and shall be sufficiently specific so as

to leave no reasonable probability that the terms of the offer

might be misunderstood.

Doc. #17, PageID##265-66.

The Court turns first to Plaintiffs’ reliance on and The

case involved a business that sold and repaired used appliances. The court

found that Mr. Lyons represented to consumers that his used appliances “had

performance characteristics, uses, and benefits which, in fact, they did not have,”

332 N.E.2d at 383, and that such representations “constitute deceptive acts and

practices in violation of R.C. 1345.02(A) [and] R.C. 1345.02(B)(1).” at 385.

involved the sale of new appliances. More specifically, plaintiff

alleged that defendant misled him about the safety features of the pressure cooker

he purchased. The court denied the motion to dismiss the OCSPA claim, finding

that the case, which also involved misleading statements about the quality

and operation of the appliances at issue, satisfied the § 1345.09(B) notice

requirement. , 2016 WL 6216135, at *4.

Whirlpool, however, argues that neither nor satisfies the

requirement of § 1345.09(B).11 The Northern District of Ohio has found that, to

the extent that held that representing that a product has benefits it does not

have violates the CSPA, this “provides no more guidance to the Defendants than

does the statute itself.” , 1:04cv1081, 2006

WL 290308, at *10 (N.D. Ohio Feb. 2, 2006),

, 494 F.3d 562 (6th Cir. 2007). Then,

in , No. 12cv310, 2012 WL 3780451, at *4 n.3 (N.D.

Ohio Aug. 31, 2012), a case involving a new washing machine, the court held that

did not satisfy the statutory requirement because involved

appliances, a “different industr[y].”

Having read the relevant cases, this Court believes that was

correct in holding that the case satisfies the § 1345.09(B) notice

requirement with respect to misleading statements made in connection with the

sale of appliances. True, involved used appliances rather than new ones.

Nevertheless, both cases involved the same industry, and the defendant in

was alleged to have engaged in conduct very similar to Whirlpool’s alleged

11 As to , Whirlpool argues that a “decision of a federal court sitting in

Ohio is insufficient to qualify as an Ohio court decision providing prior notice under

the OCSPA.” , 838 F. Supp. 2d 631, 648

(N.D. Ohio 2012). Plaintiffs respond that is not cited as itself providing

notice, but rather as a case recognizing that provides sufficient notice.

conduct, making misleading statements, on which customers relied, “regarding

the quality and operation” of the appliances. 332 N.E.2d at 384.

This Court finds that put Whirlpool “on notice that the specific

conduct at issue violated [the CSPA].” , 241 F. Supp. 2d at 837.12

Accordingly, the Court overrules Whirlpool’s motion to dismiss Count 20.

D. Unjust Enrichment (Counts 21-25)

Counts 21 through 25 assert claims of unjust enrichment on behalf of the

Maryland class (Count 21), the Virginia class (Count 22), the Illinois class (Count

23), the New York class (Count 24), and the Wisconsin class (Count 25).

Plaintiffs generally allege that Whirlpool’s misrepresentations concerning the

horsepower of the Blenders enabled Whirlpool to receive more money for the

Blenders than it would have otherwise received, that Plaintiffs paid more money

than they should have for the Blenders, that Whirlpool knowingly received this

windfall, that the misrepresentations had no legitimate business purpose, and that

the class members lack an adequate remedy at law. Plaintiffs maintain that,

because allowing Whirlpool to retain the additional revenue would be unjust, it

should be required to disgorge the excess revenue. Plaintiffs’ unjust enrichment

claims are pled in the alternative, meaning that if Plaintiffs are unable to recover on

12 The Court need not reach the issue of whether Ohio Admin. Code § 109:4-3-

02(A)(2), dealing with “Exclusions and limitations in advertisements,” also satisfies

§ 1345.09(B)’s notice requirement. Nevertheless, the Court tends to agree with

Whirlpool that this regulation does not appear to apply to purported

misrepresentations related to .

any legal theory, they seek to recover under the equitable theory of unjust

enrichment.

Fed. R. Civ. P. 8(a)(3) specifically allows plaintiffs to seek “relief in the

alternative or different types of relief.” Nevertheless, this rule is sharply curtailed

in cases involving claims of breach of express warranty. If the parties’ relationship

is governed by an express warranty, and neither the of the warranty nor

the of the warranty is in dispute, a claim of unjust enrichment is not

available under the laws of Maryland, Virginia, Illinois, New York or Wisconsin.

, 999 F. Supp. 640, 642 (D. Md. 1998) (“a

claim for unjust enrichment may not be brought where the subject matter of the

claim is covered by an express contract between the parties”);

, 705 F. Supp. 1154, 1176 (E.D. Va. 1989) (“Unjust enrichment

claims can arise only where . . . there is no express contract”); ,

880 F. Supp. 2d at 850-51 (“Illinois courts adhere to the general rule that, where a

valid contract covers the subject matter in dispute, an unjust enrichment claim is

not appropriate”); , 27 F. Supp. 3d

494, 516 (S.D.N.Y. 2014) (“where there is a valid and enforceable contract

between the parties, and the subject matter of the unjust enrichment claim is

covered by the contract, the unjust enrichment claim must be dismissed”);

, 759 F. Supp. 2d 1059, 1062-

63 (E.D. Wis. 2010) (“claims for equitable relief fail as a matter of law if the

parties entered into a valid contract to govern their relationship”).

In its Motion to Dismiss, Whirlpool argues that because the parties’

relationship is governed by the Blenders’ ten-year limited warranty, and neither the

existence nor the validity of that warranty is in dispute, a quasi-contractual claim

of unjust enrichment is not available to any of the proposed classes. Whirlpool

admits that the limited warranty is valid and could have formed the basis for a

breach-of-contract claim had Whirlpool actually breached the agreement. Whirlpool

simply denies that there was a breach, given that the warranty includes not only

the representations concerning the peak horsepower of the Blenders’ motors, as

stated on the product packaging, but also statements included in the Use and Care

Guides and on the website, distinguishing between the horsepower output of the

motors and the horsepower output available inside the Blenders’ pitchers.

Plaintiffs argue that because Whirlpool denies that the horsepower

representations contained on its product packaging constitute the full scope of the

warranty, express or implied, they may plead claims of unjust enrichment in the

alternative. The Court disagrees.

Because there is a valid and enforceable contract, and the subject matter of

the unjust enrichment claims is covered by that contract, the unjust enrichment

claims are not viable. , 27 F. Supp. 3d at 516. As the court held in

., 969 F. Supp. 2d 313, 317 (W.D.N.Y. 2013),

"[h]aving chosen to sue for breach of warranty, plaintiff cannot plead an

alternative quasi-contract claim in the hope[] of modifying the terms of that

warranty." Likewise, in , 880 F. Supp. 2d at 850, the court,

interpreting Illinois law, held that “[a] plaintiff cannot use an unjust enrichment

claim to unilaterally alter the terms of a valid contract.”

Given that neither the existence nor the validity of Whirlpool’s express

warranty is in dispute, the Court finds that Plaintiffs cannot proceed on their

alternative claims of unjust enrichment. The Court therefore SUSTAINS

Whirlpool’s Motion to Dismiss Counts 21-25, the claims of unjust enrichment, and

DISMISSES these Counts WITH PREJUDICE.13

IV. Conclusion

For the reasons set forth above, Defendant Whirlpool’s Motion to Dismiss

Plaintiffs’ Amended Class Action Complaint, Doc. #21, is SUSTAINED IN PART

and OVERRULED IN PART.

The Court DISMISSES Counts 3, 5, 6, 8, 11, 12, 21, 22, 23, 24 and 25

WITH PREJUDICE.

The Court DISMISSES Counts 1, 2, 4, 7, 9, 10, 13 and 14 WITHOUT

PREJUDICE, and grants Plaintiffs leave to file a Second Amended Class Action

Complaint within 30 days of the date of this Decision and Entry.

13 The Court does not reach Whirlpool’s alternative arguments that Count 25

must be dismissed because Plaintiff Johnson purchased his Blender from a third-

party retailer and conveyed no benefit directly on Whirlpool, or that Count 23 must

be dismissed because it is based on the same allegations as Plaintiff Smith’s Illinois

Consumer Fraud and Deceptive Business Practices Act claim.

Plaintiffs may proceed on Counts 15, 16, 17, 18, 19 and 20 as currently

pled.

wy (tp -per Judge Rice authorization after his

Date: October 2, 2020 (Jeune wh. \Scco’ review)

WALTER H. RICE

UNITED STATES DISTRICT JUDGE

37