# Bechtel v. Fitness Equipment Services, LLC dba Sole Fitness

> District Court, S.D. Ohio · September 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10378576

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10378576

## How later opinions describe it (automated extraction)

- holding that typicality is not established where resolution of a named plaintiff’s claim would not “necessarily have proved anybody else’s claim”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

LAURA BECHTEL, et al., Case No. 1:19-cv-726
Plaintiffs, Litkovitz, M.J.

v.
ORDER
FITNESS EQUIPMENT SERVICES, LLC,
Defendant.

This matter is before the Court on plaintiffs’ Motion for Class Certification and to Appoint
Class Representatives and Class Counsel (Doc. 37), defendant Fitness Equipment Services, LLC,
dba Sole Fitness’s (“Sole”) response in opposition (Doc. 45), and plaintiffs’ reply memorandum
(Doc. 52). The Court conducted a hearing on this matter on August 16, 2021.
I. Background

Sole manufactures, markets and sells several treadmill models for household use. Sole
represents on its website and marketing materials that the treadmills operate at a continuous
horsepower (“CHP”) range of 2.5 to 4.0. According to plaintiffs, Sole’s treadmills cannot ever
reach the advertised CHP in household use because standard residential outlets do not produce
the necessary wattage to achieve the stated CHP. Plaintiffs claim that Sole’s CHP
“misrepresentations” led all Sole treadmill purchasers to overpay for treadmills based on
unachievable CHP marketing. Plaintiffs seek to right this alleged wrong via a nationwide class
action, including specified subclasses.
Sole, on the other hand, declares that its award-winning treadmills produce more than
enough horsepower for the vast majority of household users, even if the advertised CHP were not
achievable using standard residential outlets. Sole claims it did not misrepresent CHP because
even plaintiffs acknowledge that the stated CHP can be achieved in laboratory conditions.
According to Sole, discerning consumers choose a treadmill based on a number of variables, and
as long as the treadmills are at least as powerful as the individual user requires, buyers are
satisfied with their purchases and suffer no injury. Sole contends that there are too many
individual issues, both factually and legally, to warrant a class action.

A. Plaintiffs’ Allegations
Sole’s marketing and advertising materials prevalently feature a specific CHP for each
treadmill model ranging from 2.5 to 4.0. (Doc. 38-2 at PAGEID 382). Dick’s Sporting Goods,
the largest third-party retailer of Sole treadmills, published a “Pro Tips guide” to the “Top Five
Things That Influence the Price of Treadmills” in which it listed CHP as the most important
factor. (Doc. 38-7 at PAGEID 432-33).1
Plaintiffs allege that Sole’s CHP representations are “inaccurate, misleading, and
materially overstate the Treadmills’ true operating horsepower” because “it is not possible for
these Treadmills to operate at a continuous horsepower of 4.0 or even 2.5 continuous horsepower
when plugged into a standard 120-volt, 15-amp outlet found in residential homes in the United

States.” (Doc. 31 at PAGEID 200). In his report, plaintiffs’ expert, Bradley Frustaglio of
Yeadon Engineering Services (“YES”), summarized his testing of Sole F80 treadmill motors.
(Doc. 38-4).
According to YES, Sole treadmills employ a pulse width modulated (“PWM”) speed
control. PWM controls use a series of “ON-OFF” pulses to control the power applied to the

1 According to the “Pro Tips guide” Dick’s Sporting Goods published on April 10, 2020:
To help you take the step forward that you need, we have broken down the top five features that
affect the price of your treadmill.
1. GET ON YOUR HIGH HORSE(POWER)
One of the ways you can choose a treadmill that fits your needs is by looking at the continuous
horsepower (CHP) of the machine. The CHP is the measure of how much power the motor
maintains throughout the workout, and the higher it is, the more expensive the treadmill will likely
be.
(Doc. 38-7 at PageID 432-33) (emphasis in original).
motor by varying the fraction of time the output voltage is “ON” compared to the fraction it is
“OFF.” (Id. at PAGEID 401-02). Treadmill motors commonly use PWM controllers because
they can control belt speed in response to a console speed setting. (Id. at PAGEID 402).
YES tested the installed F80 motor under simulated household use (i.e., powered by a

120-volt line while operated by a 188-pound subject at various speed settings) and tested the
motor capability removed from the treadmill using a laboratory DC power supply. (Id. at
PAGEID 405-10). Using a dynamometer to measure torque, speed and output power, YES
determined that the motor required “over two times the allowable 1800W continuous rating for a
120V/15A circuit” to produce 3.5 horsepower output. (Id. at PAGEID 419). YES ultimately
concluded:
After reviewing the various Sole treadmill models and represented CHP capabilities
it is my opinion that all Sole treadmills with a DC electric motor and an onboard
PWM controller are incapable of producing the continuous horsepower output Sole
advertised or marketed to consumers for the F60, F63, F65, F80, F85, S77, TT8
and TT9 treadmills. Testing is not required to confirm as the absolute maximum
theoretical CHP is 2.41HP. When PWM control and losses are included . . . the
F80 treadmills [sic] maximum horsepower output is 1.775HP and no Sole treadmill
can achieve a CHP greater than 2.41 CHP connected to a 120VAC 60Hz 15A
household breaker.

(Doc. 38-4 at PAGEID 421).
According to plaintiffs, every person who purchased a treadmill for home use paid a
“price premium”2 for CHP above 2.41 that could not be reached using residential electrical
supply. (Doc. 38 at PAGEID 353). Plaintiffs offered reports from two purported damages
experts: Colin Weir, an expert economist; and Steven Gaskin, an independent survey expert.
(Doc. 38-10; Doc. 38-11). Weir and Gaskin propose using choice-based conjoint (“CBC”)
analysis to calculate classwide damages. (Doc. 38-10 at PAGEID 455; Doc. 38-11 at PAGEID

2 Price premium damages are calculated by subtracting the market value of treadmills with the accurate CHP claim
from the market value of treadmills with the inflated CHP claim.
494).
Specifically, Gaskin will design a survey that requires panelists to make various choices
and rankings relating to product attributes, prices, and alternatives using randomized order and
appearance to avoid focusing the survey on a single attribute. (Doc. 38-10 at PAGEID 458; Doc.

38-11 at PAGEID 498). These “choice sets” will vary by brand, CHP, running surface area,
display screen, maximum incline, heart rate monitoring, warranty, and price. (Doc. 38-11 at
PAGEID 500). Gaskin intends to conduct a blind internet survey of 300 prescreened
respondents who have purchased a treadmill in the last six years. (Id. at PAGEID 504-07).
A statistical analysis is then applied to the survey responses to calculate a specific value
for each attribute. (Doc. 38-10 at PAGEID 459). Once the value, if any, attributed to CHP is
determined, the number can then be applied to the entire class to determine the price premium
damages on a class-wide basis.
B. Defendant’s Response
Sole alleges that “plaintiffs do not allege any dissatisfaction with how the F80 Sole

treadmills actually perform during use,” and “Sole’s treadmills have won accolades, received
awards, and obtained high ratings from third-party product reviewers consistently.” (Doc. 45 at
PAGEID 589-90). According to Sole, plaintiffs are seeking financial benefit from a problem that
exists only in “the highly limited laboratory testing conducted by Plaintiffs’ treadmill motor
expert.” (Id. at PAGEID 590).
Sole retained its own expert, Adam Bainbridge from S-E-A Investigation, Research and
Testing (“SEA”). (Doc. 45-1). In addition to identifying perceived problems with YES’s
testing, SEA concluded:
There has been no evidence presented to S-E-A to indicate that users of Sole
treadmills are not receiving the necessary motor power output to meet the various
demands of their individual workouts. Power usage will always be dependent on
the specific weight and running style of a user. The maximum motor horsepower
output for a treadmill application would occur at the top speed setting and
maximum-rated user weight; therefore, the overwhelming majority of treadmill
users would not be impacted by the upper bounds of the motor nameplate rating
because the majority of users would not operate the device at the maximum speed
and weight rating. It would be expected that most users could operate through the
range of the machine while staying well below the limits of the motor. A treadmill
is designed to assure that appropriate power is available to every user up to the
maximum speed and rated weight of the device.

(Doc. 45-1 at PAGEID 628-29). SEA further stated that a “motor nameplate rating of ‘3.5 CHP,’
(sic) does not imply that the motor will always or ever deliver that much power, (sic) it is simply
the upper threshold of treadmill-duty loading the motor can sustain without incurring damage,”
and both YES’s and SEA’s testing establish that the motors can reach the rated value “under
constant loading with a DC power supply.” (Id. at PAGEID 629).
Sole also retained a damages expert, Keith Ugone, who concluded that plaintiffs’
proposed CBC analysis would not measure the “claimed ‘reduction in market value’ (i.e., a price
premium)” but instead “measures a difference in ‘willingness-to-pay.’” (Doc. 45-2 at PAGEID
668). According to Ugone, “damages associated with allegations of deceptive labeling would be
equal to the difference in the price that putative Class members paid for the Challenged Products
(i.e., actual prices) and the price putative Class members would have paid in the absence of the
alleged misrepresentation (i.e., in the ‘but-for-world’), if such a difference exists.” (Id. at
PAGEID 681). Ugone reports that damages rely on both demand side (a consumers’ willingness
to pay) and supply side (producers’ willingness to sell) considerations, and the proposed CBC
analysis evaluates only the demand side of the equation. (Id. at PAGEID 682).3

3 According to Ugone, one major flaw in plaintiffs’ proposed CBC analysis is the failure to account for other
products available that would affect the treadmill market. (Doc. 45-2 at PAGEID 687). Sole notes that the law
firms representing the plaintiffs here have lodged identical class action allegations against Sole’s primary home
treadmill competitors. (Doc. 45 at PAGEID 600-01) (citing Barclay v. Icon Health & Fitness, Inc. and
NordicTrack, Inc., No. 18-cv-0270 (D. Minn. 2019) and Walker v. Nautilus, Inc., No. 2:20-cv-3414 (S.D. Ohio
C. Class Certification Requested
Plaintiffs seek to certify the following classes (as modified in plaintiffs’ reply brief and at
oral argument):
Ohio Class: All persons in Ohio who purchased a Sole F63 (3.0 CHP), Sole F65 (3.25
CHP), Sole S77 (4.0 CHP), Sole F80 (3.5 CHP), Sole F85 (4.0 CHP), Sole TT8 (4.0 CHP),
Sole F60 (2.75 CHP), Sole S73 (3.0 CHP), Sole F83 (3.25 CHP), and/or Sole TT9 (4.0
CHP) treadmill from August 30, 2015 through class certification, primarily for personal,
family, or household purposes, and not for resale. (Breach of express warranty and
Magnuson-Moss Warranty Act breach of express warranty).
Ohio Class: All persons in Ohio who purchased a Sole F63 (3.0 CHP), Sole F65 (3.25
CHP), Sole S77 (4.0 CHP), Sole F80 (3.5 CHP), Sole F85 (4.0 CHP), Sole TT8 (4.0 CHP),
Sole F60 (2.75 CHP), Sole S73 (3.0 CHP), Sole F83 (3.25 CHP), and/or Sole TT9 (4.0
CHP) treadmill from August 30, 2017 through class certification, primarily for personal,
family, or household purposes, and not for resale. (Ohio Consumer Sales Practices Act).
Minnesota Class: All persons in Minnesota who purchased a Sole F63 (3.0 CHP), Sole
F65 (3.25 CHP), Sole S77 (4.0 CHP), Sole F80 (3.5 CHP), Sole F85 (4.0 CHP), Sole TT8
(4.0 CHP), Sole F60 (2.75 CHP), Sole S73 (3.0 CHP), Sole F83 (3.25 CHP), and/or Sole
TT9 (4.0 CHP) treadmill from August 30, 2015 through class certification, primarily for
personal, family, or household purposes, and not for resale. (Breach of express warranty;
Magnuson-Moss Warranty Act breach of express warranty; breach of implied
warranty).
Minnesota Class: All persons in Minnesota who purchased a Sole F63 (3.0 CHP), Sole
F65 (3.25 CHP), Sole S77 (4.0 CHP), Sole F80 (3.5 CHP), Sole F85 (4.0 CHP), Sole TT8
(4.0 CHP), Sole F60 (2.75 CHP), Sole S73 (3.0 CHP), Sole F83 (3.25 CHP), and/or Sole
TT9 (4.0 CHP) treadmill from August 30, 2013 through class certification, primarily for
personal, family, or household purposes, and not for resale. (Uniform Deceptive Trade
Practices Act; Consumer Fraud Act; False Statement in Advertising; Unlawful Trade
Practice Act; negligent misrepresentation).
Nationwide Class: All persons in the United States who purchased a Sole F63 (3.0 CHP),
Sole F65 (3.25 CHP), Sole S77 (4.0 CHP), Sole F80 (3.5 CHP), Sole F85 (4.0 CHP), Sole
TT8 (4.0 CHP), Sole F60 (2.75 CHP), Sole S73 (3.0 CHP), Sole F83 (3.25 CHP), and/or
Sole TT9 (4.0 CHP) treadmill from August 30, 2015 through class certification, primarily
for personal, family, or household purposes, and not for resale. (Breach of express
warranty and Magnuson-Moss Warranty Act breach of express warranty).

2020)). According to Sole, if all home treadmill providers represent their treadmill CHP the same way Sole does,
plaintiffs suffered no damages because they would have been unable to purchase similar treadmills without paying
the alleged price premium anywhere else. (Doc. 45 at PAGEID 601).
From these classes, plaintiffs specifically exclude “SOLE, its employees, agents, officer[s],
directors, legal representatives, successors, subsidiaries, parent entities, or predecessors and its
employees; and judicial officers and its associated court staff assigned to this case.” (Doc. 38 at
PAGEID 349, n. 6 (quoting Doc. 31 at PAGEID 211)).

Specifically, plaintiffs seek to certify an Ohio class for breach of express warranty,
Magnuson-Moss Warranty Act (“MMWA”) breach of express warranty (15 U.S.C. § 2310), and
Ohio Consumer Sales Practices Act (Ohio Rev. Code § 1345.01 et seq.) claims. (Doc. 38 at
PAGEID 348, n. 4).4 Plaintiffs seek to certify a Minnesota class for breach of express warranty
(Minn. Stat. § 336.2-313), MMWA breach of express warranty (15 U.S.C. § 2310), breach of
implied warranty (Minn. Stat. § 336.2-314), Minnesota Uniform Deceptive Trade Practices Act
(Minn. Stat. § 325D.43-48), Minnesota Consumer Fraud Act (Minn. Stat. § 325F.68-70),
Minnesota False Statement in Advertising Act (Minn. Stat. § 325F.67), Minnesota Unlawful
Trade Practices Act (Minn. Stat. § 325.13), and negligent misrepresentation claims. (Doc. 38 at
PAGEID 349, n. 5; Doc. 31 at PAGEID 223-36). Plaintiffs seek to certify a nationwide class for

breach of express warranty, MMWA breach of express warranty (15 U.S.C. § 2310), breach of
implied warranty, MMWA breach of implied warranty (15 U.S.C. § 2310), and negligent
misrepresentation claims. (Doc. 31 at PAGEID 216-23, 242-43).

4 Although plaintiffs seek to allege a MMWA claim on behalf of the Ohio class (Doc. 38 at PAGEID 348, n. 4), the
amended complaint contains, on behalf of the Ohio class, only a breach of express warranty claim (Count 13) and an
Ohio Consumer Sales Practices Act claim (Count 14). Plaintiffs alleged a MMWA breach of express warranty
claim on behalf of the desired nationwide class that the Court could limit to only Ohio class members. (Doc. 31 at
PAGEID 218-20 (Count 2)). Because Sole was on notice that plaintiffs alleged both a nationwide and an Ohio
breach of express warranty claim and because plaintiffs’ MMWA claim “derives from, but is not duplicative of,”
their Ohio claim, the Court will permit both plaintiffs’ Ohio breach of express warranty claim and the MMWA claim
to proceed on behalf of the putative Ohio class. Mayernik v. CertainTeed LLC, 476 F. Supp. 3d 625, 633 (S.D. Ohio
2020); In re American Med. Sys., Inc., 75 F.3d 1069 (6th Cir. 1996) (courts have inherent power to manage dockets
so long as management is in harmony with the Federal Rules of Civil Procedure).
II. Standing
Plaintiffs in this case purchased Sole F80 treadmills in Minnesota and Ohio. Yet, they
seek to represent purchasers of other Sole treadmill models in a nationwide class action.
Although defendant raises the standing issue in arguing lack of commonality and typicality under

Rule 23(a), jurisdictional issues, including Article III standing requirements, must be addressed
first. Kanuszewski v. Michigan Dept. of Health and Human Servs., 927 F.3d 396 (6th Cir. 2019).
“A plaintiff has standing only if he can ‘allege personal injury fairly traceable to the
defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.’”
California v. Texas, 141 S.Ct. 2104, 2113 (2021) (quoting DaimlerChrysler Corp. v. Cuno, 547
U.S. 332, 342 (2006)). “[A] plaintiff must demonstrate standing for each claim he seeks to press
and for each form of relief that is sought.” Kanuszewski, 927 F.3d at 406 (quoting Town of
Chester v. Laroe Estates, Inc., 137 S.Ct. 1645, 1650 (2017)). In class actions, “potential class
representatives must demonstrate ‘individual standing vis-à-vis the defendant; [they] cannot
acquire such standing merely by virtue of bringing a class action.’” Perry v. Allstate Indem. Co.,

953 F.3d 417, 420 (6th Cir. 2020) (quoting Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576,
582 (6th Cir. 2016)).
In the case at bar, named plaintiffs Laura Bechtel and Troy Thoennes declared that: (1)
they purchased Sole F80 treadmills expecting to receive the advertised 3.5 CHP; and (2) had they
known the treadmill could achieve no more than 2.41 CHP in home use, they would not have
purchased a Sole F80 treadmill or would have paid substantially less to purchase one. (Doc. 38-
5 at PAGEID 426; Doc. 38-6 at PAGEID 429-30). Those allegations sufficiently establish
Article III standing for the individual plaintiffs’ claims against Sole.
However, as to claims by putative class members, two significant issues remain: (1)
whether plaintiffs who bought Sole F80 treadmills have standing to bring class claims related to
other models; and (2) whether named plaintiffs who bought treadmills in Minnesota and Ohio for
home use in Minnesota and Ohio have standing to bring nationwide class claims. The Court will

address these issues in turn.
First, as to class claims for other Sole treadmill models, this Court recently summarized
the applicable law as follows:
“Courts are split as to whether plaintiffs have standing to assert claims relating to
products they themselves did not purchase, but which are substantially similar to
products they did purchase.” Quinn v. Walgreen Co., 958 F. Supp. 2d 533, 541
(S.D.N.Y. 2013). Defendants note that courts often dismiss class-action claims
with respect to products the named plaintiff did not actually buy. See, e.g., Murray
v. Sears, Roebuck & Co., No. C 09-5744 CW, at *9, 2014 WL 563264, 2014 U.S.
Dist. LEXIS 18082, at *31-32 (N.D. Cal. Feb. 12, 2014) (“A plaintiff therefore may
not represent a class in bringing CLRA claims based on products that he or she
never purchased.”); Pearson v. Target Corp., No. 11 CV 7972, 2012 WL 7761986,
at *1, 2012 U.S. Dist. LEXIS 187208, at *3-4 (N.D. Ill. Nov. 9, 2012) (“[H]ow
could [plaintiff] possibly have been injured by representations made on a product
he did not buy?”); Granfield v. Nvidia Corp., No. C 11-05403 JW, 2012 WL
2847575, at *6, 2012 U.S. Dist. LEXIS 98678, at *18-19 (N.D. Cal. July 11, 2012)
(“[W]hen a plaintiff asserts claims based both on products that she purchased and
products that she did not purchase, claims relating to products not purchased must
be dismissed for lack of standing.”).

However, “[t]he majority of the courts that have carefully analyzed the question
hold that a plaintiff may have standing to assert claims for unnamed class members
based on products he or she did not purchase so long as the products and alleged
misrepresentations are substantially similar.” Brown v. Hain Celestial Group, Inc.,
913 F. Supp. 2d 881, 890 (N.D. Cal. 2012) (citing several cases). “[T]he critical
inquiry is whether there is sufficient similarity between the products purchased and
not purchased.” Davidson v. Kimberly–Clark Corp., No. C 14–1783, 2014 WL
3919857, at *6 (N.D. Cal. Aug. 8, 2014) (internal quotation marks omitted). The
Court agrees with the majority view and finds that as long as the purchased and
unpurchased products are substantially similar, Plaintiffs have standing to assert
claims based on products they did not purchase.
Hawes v. Macy’s Inc., 346 F. Supp. 3d 1086, 1091 (S.D. Ohio 2018) (permitting claims for
inflated thread counts in related brands of bed sheets even though named plaintiffs purchased
only one type of sheets).
Applying the majority view to the case at bar, the Sole treadmill models are substantially

similar for purposes of the claims at issue. Plaintiffs allege that Sole consistently made
essentially identical inflated CHP representations in marketing, sales, and packaging materials
for all included treadmill models. (Doc. 31 at PAGEID 207-210). Plaintiffs further claim that
all the personal use treadmill models are equally unable to exceed 2.41 horsepower because
American residential electrical outlets do not produce the required power to do so. (Id. at
PAGEID 204-205). Because both the alleged misrepresentations and the physical treadmill
qualities important to this action are substantially similar, plaintiffs have standing to assert
claims for treadmill models they did not purchase. See Hawes, 346 F. Supp. 3d at 1091.
As to the second issue, whether plaintiffs who acted exclusively in two individual states
can assert predominantly state law claims on behalf of a nationwide class, courts disagree if this

is an Article III standing issue or a Rule 23(b)(2) inquiry. Compare Langan v. Johnson &
Johnson Consumer Co., Inc., 879 F.3d 88, 95 (2d Cir. 2018) (Variations in state laws should be
considered “as questions of predominance under Rule 23(b)(3), rather than standing under
Article III” because “it makes little sense to dismiss the state law claims of unnamed class
members for want of standing when there was no requirement that the named plaintiffs have
individual standing to bring those claims in the first place.”) with Withrow v. FCA US LLC, No.
19-13214, 2021 WL 2529847, at *9 (E.D. Mich. June 21, 2021) (electing to “address the
standing issue at the motion to dismiss stage rather than in the context of Rule 23” because
“there is no causal connection between the ‘challenged conduct’ (Fiat-Chrysler’s violations of
Montana law) and Nestor’s injury (the purchase of a defective Jeep in California)” (emphasis in
original)). The Court need not decide which approach to follow here because, as will be
explained below, a nationwide class is not appropriate anyway.
III. Dismissal of Certain Minnesota Claims

Sole contends that class certification should be denied for plaintiffs’ Minnesota statutory
claims and negligent misrepresentation claim because they are precluded as a matter of law
pursuant to Rule 12(c). (Doc. 45 at PAGEID 611-13). The Court agrees.
A. Rule 12(c) Standard
A motion for judgment on the pleadings is analyzed under the same standard applicable
to a Rule 12(b)(6) motion to dismiss. See D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir.
2014). In determining a Rule 12(c) motion, the court must accept all well-pled factual
allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff.
Philadelphia Indem. Ins. Co. v. Youth Alive, Inc., 732 F.3d 645, 649 (6th Cir. 2013). The court
“need not accept as true legal conclusions or unwarranted factual inferences, and conclusory

allegations or legal conclusions masquerading as factual allegations will not suffice.”
D’Ambrosio, 747 F.3d at 383 (quoting Terry v. Tyson Farms, Inc., 604 F.3d 272, 275-76 (6th
Cir. 2010) (citation and quotation marks omitted)). “[A] plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.’” Republic Bank & Trust Co. v. Bear
Stearns & Co., Inc., 683 F.3d 239, 246-47 (6th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). “Rather, ‘[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’”
Id. at 247 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
B. Minnesota Deceptive Trade Practices Act (“MDTPA”) (Minn. Stat. § 325D.43-48)
(Count 8)

“A party seeking relief under the MDTPA must demonstrate a likelihood of future harm
because the statute provides relief only ‘from future damage, not past damage.’” Knotts v.
Nissan North America, Inc., 346 F. Supp. 3d 1310, 1327 (D. Minn. 2018) (quoting Gardner v.
First Am. Title Ins. Co., 296 F. Supp. 2d 1011, 1020 (D. Minn. 2003)). “A plaintiff asserting a
claim under MDTPA must allege an irreparable injury or threat of future harm in order to
withstand a motion to dismiss.” Id. at 1328.
In the case at bar, plaintiffs fail to adequately allege an irreparable injury or sufficient
threat of future harm. Count eight of plaintiffs’ amended complaint alleges only that
“Defendant’s conduct caused substantial injury and provided no benefit to consumers,”
“Defendant intended to mislead [plaintiffs] and induce them to rely on its misrepresentations,”
and “[h]ad Defendant disclosed to [plaintiffs] that its Treadmills did not meet the rating for CHP
as advertised, Defendant would have been unable to justify the price differentiation and premium
price charged to consumers.” (Doc. 31 at PAGEID 230).
In the amended complaint’s “Introduction” section, plaintiffs allege they “have a
significant probability of future harm because of the ongoing, highly technical, and not readily
apparent horsepower misrepresentations when purchasing future fitness equipment.” (Doc. 31 at
PAGEID 201). However, to qualify as a class member, a consumer must already have purchased

one of the Sole treadmills at issue. By virtue of this putative class action, class members will be
informed of the allegedly inflated CHP representations and are, therefore, unlikely to overpay in
the event of a future treadmill purchase. In addition, home use treadmills are not an item
commonly purchased repeatedly. Indeed, counsel acknowledged at the hearing that plaintiffs
have not offered evidence to establish the required threat of future harm. Therefore, plaintiffs’
MDTPA claim must be dismissed.
C. Minnesota Prevention of Consumer Fraud Act (“MPCFA”) (Minn. Stat. § 325F.68-
70), Minnesota False Statement in Advertising Act (“MFSAA”) (Minn. Stat. §
325F.67), and Minnesota Unlawful Trade Practices Act (“MUTPA”) (Minn. Stat. §
325.13) (Counts 9, 10, and 11)

Private plaintiffs alleging violations of the MPCFA, MFSAA, and MUTPA may seek
remedies only through Minnesota’s private attorney general statute. Gisairo v. Lenovo, ___ F.
Supp. 3d ___, 2021 WL 352437 (D. Minn. Feb. 2, 2021) (citing Minn. Stat. § 8.31, subdiv. 1 and
3a); Select Comfort Corp. v. Tempur Sealy Int’l, Inc., 11 F. Supp. 3d 933 (D. Minn. 2014). “A
plaintiff may use the Private AG Statute to pursue civil remedies only if the plaintiff can
demonstrate that the action serves a ‘public benefit.’” Gisairo, 2021 WL 352437, at *4. The
public benefit requirement is “not onerous,” but “it is a necessary element of a plaintiff’s cause
of action.” Id. (quoting Select Comfort, 11 F. Supp. 3d at 937). “Generally, a public benefit is
found ‘when the plaintiff seeks relief primarily aimed at altering the defendant’s conduct
(usually, but not always, through an injunction) rather than seeking remedies for past wrongs
(typically through damages).’” Id. (quoting Select Comfort, 11 F. Supp. 3d at 938). Even where
a plaintiff seeks to enjoin continued false advertising, no public benefit will be found if monetary
damages are the primary relief sought. Id. at *5 (quoting Select Comfort, 11 F. Supp. 3d at 939
(“even though plaintiff sought to ‘enjoin Defendant from continuing its false advertising and
marketing,’ the relief sought was not primarily aimed at altering the defendant’s conduct because
the complaint requested ‘payment of damages . . . all profits and/or ill-gotten gains’”) (internal
quotation marks omitted)).
Like the plaintiffs in Select Comfort and Gisairo, plaintiffs in this case primarily seek
remedies for alleged past wrongs. Although plaintiffs here ask the Court to enjoin Sole “from
future misrepresentations regarding the horsepower of its treadmills,” they more prominently
seek “Damages, including compensatory, exemplary, and statutory,” “restitution to . . . require
SOLE to disgorge its ill-gotten gains,” “punitive damages in an amount to be determined at
trial,” “reasonable attorneys’ fees and the costs and disbursements of this suit incurred herein,”
and “pre-judgment and post-judgment interest at the highest legal rate to the extent provided by

law.” (Doc. 31 at PAGEID 243-44). In this case, plaintiffs’ focus is on monetary awards. Thus,
plaintiffs fail to establish the public benefit required to seek remedies through Minnesota’s
private attorney general statute, and plaintiffs’ claims under the MPCFA, MUTPA, and MFSAA
must be dismissed.
D. Negligent Misrepresentation (Count 12)

During the hearing on this matter, the Court inquired whether the economic loss doctrine
bars the negligent misrepresentation claim for the putative Minnesota class. Subsequently, the
Court has been advised that plaintiffs voluntarily withdraw their negligent misrepresentation
claim.
IV. Class Certification
Class actions, governed by Federal Rule of Civil Procedure 23, are “an exception to the
usual rule that litigation is conducted by and on behalf of the individual named parties only.”
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011) (quoting Califano v. Yamasaki, 442
U.S. 682, 700-01 (1979)). Rule 23 provides:
One or more members of a class may sue . . . as representative parties on behalf of
all members only if: (1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common to the class; (3) the
claims or defenses of the representative parties are typical of the claims or defenses
of the class; and (4) the representative parties will fairly and adequately protect the
interests of the class.

Fed. R. Civ. P. 23(a). “[A]lthough not explicitly stated in Rule 23 ‘the class definition must be
sufficiently definite so that it is administratively feasible for the court to determine whether a
particular individual is a member of the proposed class.’” Lyngaas v. Ag, 992 F.3d 412, 428 (6th
Cir. 2021) (quoting Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537-38 (6th Cir. 2012)).
In addition to the prerequisites set forth in Rule 23(a), “a party seeking to maintain a class
action must ‘satisfy through evidentiary proof at least one of the provisions of Rule 23(b).’”

Lyngaas, 992 F.3d at 428 (quoting Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)).
Plaintiffs here request certification under Rule 23(b)(3), “which requires the district court to find
‘that the questions of law or fact common to class members predominate over any questions
affecting only individual members’ and that the class action is ‘superior to other available
methods’ to adjudicate the controversy fairly and efficiently.” In re Whirlpool Corp. Front-
Loading Washer Prods. Liab. Litig., 722 F.3d 838, 850-51 (6th Cir. 2013) (quoting Fed. R. Civ.
P. 23(b)(3)).
A court is not required “to decide conclusively at the class-certification stage what
evidence will ultimately be admissible at trial,” but “the trial court must undertake a ‘rigorous
analysis’” to ensure Rule 23’s requirements have been fulfilled. Lyngaas, 992 F.3d at 428

(quoting Gen Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)). As the Sixth Circuit has
instructed:
Rule 23 grants courts no license to engage in free-ranging merits inquiries at the
certification stage. Merits questions may be considered to the extent—but only to
the extent—that they are relevant to determining whether the Rule 23 prerequisites
for class certification are satisfied.

In re Whirlpool, 722 F.3d at 851 (quoting Amgen Inc. v. Conn. Retirement Plans & Trust Funds,
568 U.S. 455, 466 (2013)). The trial court “maintains substantial discretion in determining
whether to certify a class, as it possesses the inherent power to manage and control its own
pending litigation.” Rikos v. Procter & Gamble Co., 799 F.3d 497, 504 (6th Cir. 2015) (quoting
Beattie v. CenturyTel, Inc., 511 F.3d 554, 559 (6th Cir. 2007)).
A. Rule 23(a) Requirements
1. Ascertainability
“For a class to be sufficiently defined, the court must be able to resolve the question of
whether class members are included or excluded from the class by reference to objective

criteria.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012) (quoting
MOORE’S FEDERAL PRACTICE § 23.21[3]). Reference to fixed, geographic boundaries or
injuries allegedly caused by a defendant’s particular action are generally deemed sufficiently
objective for class definition. Id. at 538-39.
Plaintiffs seek to certify separate classes defined by geographic location and Sole
treadmill purchase date. Plaintiffs offered evidence that Sole maintains customer names and
contact information for those who purchased treadmills either directly from Sole or through
third-party retailers Dick’s Sporting Goods and Amazon. (Doc. 38, Exh. 8).
Sole does not dispute this information, but instead contends that ascertainability fails
because plaintiffs’ proposed class definitions do not differentiate between aggrieved and satisfied

treadmill purchasers. (Doc. 45 at PAGEID 593-95). However, under plaintiffs’ theory of the
case, every person who purchased a Sole treadmill for home use expecting 2.5 or higher CHP
overpaid for their treadmill (even if they are satisfied with treadmill performance) because the
treadmills are incapable of reaching such CHP in home use. Thus, if plaintiffs’ theory is
ultimately successful on the merits, class members are objectively ascertainable from the known
customer lists.
2. Numerosity
Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1). There is no strict numerical test for determining
numerosity.5 Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006); In re American Med.
Sys., 75 F.3d at 1079. However, the “sheer number of potential litigants in a class, especially if it
is more than several hundred, can be the only factor needed to satisfy [numerosity].” Bacon v.
Honda of Am. Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004). Only a “reasonable estimate or some

evidence of the number of class members” is required. Bentley v. Honeywell Intern., Inc., 223
F.R.D. 471, 480 (S.D. Ohio 2004).
“The reason for [the impracticability] requirement is obvious. Only when joinder is
impracticable is there a need for a class action device.” In re American Med. Sys., 75 F.3d at
1079 (quoting 1 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 3.01, at 3-4 (3d
ed. 1992)). Thus, “[t]he key to determining whether certification is appropriate under Rule
23(a)(1) rests on the impracticability of joinder.” Ledford ex rel. Epperson v. Colbert, No. 1:10-
cv-706, 2012 WL 1207211, at *3 (S.D. Ohio Apr. 11, 2012) (citing In re American Med, Sys., 75
F.3d at 1079). “Numerous factors play into the impracticability of joinder, including ‘the size of
the proposed class, geographic dispersion and financial resources of class members, and judicial

economy.’” Id. (quoting Prater v. Ohio Educ. Ass’n, No. 2:04-cv-1077, 2008 WL 2566364, at *2
(S.D. Ohio June 26, 2008)).
Sole admittedly sold more than 200,000 treadmills nationally, several thousand of which
were sold in Minnesota and Ohio during the relevant time periods. Thus, the numerosity
requirement has been satisfied.

5 While generally no strict numerical test applies, a federal class action for MMWA claims must have at least “one
hundred named plaintiffs.” 15 U.S.C. § 2310(d)(3)(C). Courts in this Circuit have determined that plaintiffs need
not meet the MMWA’s strict numerical class requirements where jurisdiction is established under the Class Action
Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2). Kuns v. Ford Motor Co., 543 F. App’x 572, 574 (6th Cir. 2013);
Chapman v. Gen. Motors LLC, ___ F. Supp. 3d ___, 2021 WL 1286612 (E.D. Mich. 2021); but see Floyd v. Am.
Honda Motor Co., Inc., 966 F.3d 1027, 1035 (9th Cir. 2020) (“CAFA may not be used to evade or override the
MMWA’s specific numerosity requirement.”). Plaintiffs here assert jurisdiction under CAFA. (Doc. 31 at PAGEID
201-02).
3. Commonality
Rule 23(a)(2) mandates the existence of “questions of law or fact common to the class.”
Fed. R. Civ. P. 23(a)(2). “The commonality test is qualitative rather than quantitative” in that
“there need be only a single issue common to all members of the class.” In re American Med.

Sys., 75 F.3d at 1080 (internal quotation marks omitted).
Class relief is peculiarly appropriate when the issues involved are common to the
class as a whole and when they turn on questions of law applicable in the same
manner to each member of the class. For in such cases, the class-action device
saves the resources of both the courts and the parties by permitting an issue
potentially affecting every class member to be litigated in an economical fashion
under Rule 23.

Id. (quoting General Telephone Co. of Sw. v. Falcon, 457 U.S. 147, 155 (1982) (internal citations
and quotation marks omitted)). Plaintiffs must show that class members have suffered the same
injury to establish the commonality requirement of Rule 23(a). Wal-Mart, 564 U.S. at 350.
“Their claims must depend upon a common contention . . . of such a nature that it is capable of
classwide resolution – which means that determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in one stroke.” Id. “This inquiry focuses
on whether a class action will generate common answers that are likely to drive resolution of the
lawsuit.” In re Whirlpool Corp., 722 F.3d at 852 (citing Wal-Mart, 564 U.S. at 350).
Plaintiffs in this case allege that Sole advertised its treadmills using false CHP ratings in
online marketing materials, in the specifications that accompanied each treadmill, and on large
stickers affixed to the treadmill decks and screens. (Doc. 31 at PAGEID 207-211). According to
plaintiffs, all potential class members suffered the same injury – overpaying for a CHP
representation that the treadmill could not achieve. (Id. at PAGEID 212-13). Therefore,
commonality exists because Sole made the same alleged misrepresentations to all potential class
members, the alleged misrepresentations caused pecuniary injury to all potential class members,
and the same evidence will establish (or not) the falsity of the representations, whether the
representations were material to reasonable consumers in the market, and whether Sole knew or
should have known its representations were false or misleading. These common questions will
yield common answers for the entire class which, if true, will make Sole liable to the entire class.

Sole contends that commonality fails because the named plaintiffs purchased only Sole
F80 treadmills yet seek to represent purchasers of multiple treadmill models. While Sole cites to
several products liability cases in which courts found a lack of commonality for class members
who purchased different products,6 it – like the defendant in Rikos v. Procter & Gamble Co. –
“failed to identify a single false-advertising case where a federal court has denied class
certification because of a lack of commonality.” 799 F.3d 497, 507 (6th Cir. 2015).
Rather than an issue of commonality, Sole’s issue is one of standing. As explained
above, standing exists where the products at issue are substantially similar. The Sole treadmills
here are substantially similar.
4. Typicality

Rule 23(a)(3) requires that “the claims or defenses of the representative parties [be] typical
of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). A claim is typical if “it arises
from the same event or practice or course of conduct that gives rise to the claims of other class
members, and if his or her claims are based on the same legal theory.” In re American Med. Sys.,
75 F.3d at 1082 (quoting 1 Newberg, supra, § 3-13, at 3-76 (footnote omitted)). The typicality
prerequisite “determines whether a sufficient relationship exists between the injury to the named
plaintiff and the conduct affecting the class, so that the court may properly attribute a collective
nature to the challenged conduct.” Id. “The premise of the typicality requirement is simply

6 See, e.g., In re American Med. Sys., 75 F.3d 1069 (6th Cir. 1996) (no commonality where different models of
penile implants lacked a common cause of prosthesis malfunction).
stated: as goes the claim of the named plaintiff, so go the claims of the class.” Sprague v.
General Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998) (holding that typicality is not
established where resolution of a named plaintiff’s claim would not “necessarily have proved
anybody else’s claim”).

Here, the named plaintiffs purchased treadmills allegedly misrepresented as able to
deliver a CHP impossible in household use. According to plaintiffs, all purported class members
overpaid for their treadmills based on the alleged higher CHP misrepresentations. If plaintiffs can
prove their claims, all class members will have experienced the same alleged overpayment injury.
Thus, the typicality requirement is satisfied.
5. Adequacy of Representation
Under Rule 23(a)(4), plaintiffs must demonstrate that “the representative parties will fairly
and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The Sixth Circuit has
“articulated two criteria for determining adequacy of representation: ‘1) the representative[s] must
have common interests with unnamed members of the class, and 2) it must appear that the

representatives will vigorously prosecute the interests of the class through qualified counsel.’” In
re American Med. Sys., 75 F.3d at 1083 (quoting Senter, 532 F.2d at 525). “The adequate
representation requirement overlaps with the typicality requirement because in the absence of
typical claims, the class representative has no incentives to pursue the claims of the other class
members.” Id. In addition, in assessing the adequacy of class representation, the Court considers
“whether class counsel are qualified, experienced and generally able to conduct the litigation” and
“whether the class members have interests that are not antagonistic to one another.” Vassalle v.
Midland Funding LLC, 708 F.3d 747, 757 (6th Cir. 2013) (citation omitted).
As discussed above, plaintiffs’ claims are typical, and they share common interests with
putative class members. In addition, plaintiffs’ attorneys have appeared in this Court many times
and have substantial experience litigating class actions and other complex matters. Thus, the
adequacy requirement is satisfied.
B. Rule 23(b)(3) Requirements

Having concluded that plaintiffs have satisfied the requirements of Rule 23(a), the Court
must now determine whether one of the Rule 23(b) criteria applies. Plaintiffs here seek
certification under Rule 23(b)(3). To proceed as a Rule 23(b)(3) class action, the Court must
find “that the questions of law or fact common to class members predominate over any questions
affecting only individual members, and that a class action is superior to other available methods
for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
1. Predominance
The predominance requirement is similar to but more demanding than the commonality
requirement of Rule 23(a). Zehentbauer Fam. Land, LP v. Chesapeake Expl., LLC, 935 F.3d
496, 503 (6th Cir. 2019) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 609 (1997) and

Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013)). “What matters to class certification . . . is
not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide
proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart,
564 U.S. at 350 (emphasis and ellipsis in original) (quoting Richard A. Nagareda, Class
Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). “[T]he key is to
‘identify[ ] the substantive issues that will control the outcome,’ in other words, courts should
‘consider how a trial on the merits would be conducted if a class were certified.’” Sandusky
Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 468 (6th Cir. 2017), as
corrected on denial of reh’g en banc (Sept. 1, 2017) (quoting Gene & Gene, LLC v. BioPay,
LLC, 541 F.3d 318, 326 (5th Cir. 2008)); see also In re Nat’l Prescription Opiate Litig., 976
F.3d 664, 674 (6th Cir. 2020). To find that common issues predominate, plaintiffs “need not
prove that every element can be established by classwide proof.” Sandusky Wellness, 863 F.3d
at 468.

a. Nationwide Class
Plaintiffs’ amended complaint alleges the following claims on behalf of the nationwide
class: (1) breach of express warranty (Count 1); (2) breach of express warranty under the
MMWA, 15 U.S.C. § 2310 (Count 2); (3) breach of implied warranty (Count 3); (4) breach of
implied warranty under the MMWA, 15 U.S.C. § 2310 (Count 4); and (5) negligent
misrepresentation (Count 15). Questions of law or fact common to class members do not
predominate individual issues with regard to a nationwide class.
As this Court previously explained in a putative class action alleging inflated horsepower
representations for household blenders, state laws vary dramatically on most of these claims.
Nathan v. Whirlpool Corp., 492 F. Supp. 3d 747 (S.D. Ohio 2020). For example, “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.”
Id. at 759 (citing Hughes v. The Ester C Co., 317 F.R.D. 333, 352 (S.D. N.Y. 2016) (noting
“significant variations between the laws of the fifty states” on negligent representation claims)).
Indeed, even the federal claim alleged “is directly dependent on the viability of an
actionable warranty claim under state law.” Id. (citing Temple v. Fleetwood Enter., Inc., 133 F.
App’x 254, 268 (6th Cir. 2005). “[C]laims under the Magnuson-Moss Act stand or fall with
[the] express and implied warranty claims under state law.” Id. (quoting Clemens v.
DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008)). In view of the significant legal
variations from state to state, a trial on the merits for a nationwide class here is simply untenable.
See Chapman v. Tristar Prod., Inc., No. 1:16-cv-1114, 2017 WL 1433259, at *6 (N.D. Ohio Apr.
24, 2017) (quoting In re Am. Med. Sys., Inc., 75 F.3d 1069, 1085 (6th Cir. 1996) (“[W]hen ‘more
than a few of the laws of the fifty states differ,’ certification is inappropriate because ‘the district

judge would face an impossible task of instructing a jury on the relevant law.’”)). Although
plaintiffs argue that all states are governed by the Uniform Commercial Code, “Justice Ginsburg
once noted, ‘the Uniform Commercial Code is not Uniform,’ [and] [h]er observation is apt here.”
Chapman, 2017 WL 1433259, at *6 (quoting Walsh v. Ford Motor Co., 807 F.2d 1000, 1016
(D.C. Cir. 1986)) (footnote omitted).7
In this case, the claims are essentially state law claims. Because the law differs
significantly from state to state and claim to claim, common issues do not predominate.
Therefore, a nationwide class cannot be certified pursuant to Rule 23(b)(3).
b. Minnesota Class
Plaintiffs’ remaining claims on behalf of the Minnesota class include: (1) breach of

express warranty pursuant to Minn. Stat. § 336.2-313 (Count 5); (2) breach of implied warranty
pursuant to Minn. Stat. § 336.2-314 (Count 6); and (3) breach of warranty under the MMWA, 15
U.S.C. § 2310 (Count 7). The Court will address these claims separately.
i. Breach of Express Warranty (Minn. Stat. § 336.2-313) and Breach of

7 For example, the court in Chapman explained that states have enacted and judicially interpreted a U.C.C. § 2-313
breach of express warranty claim in different ways such that individualized state law reliance questions predominate
the claim:
[U.C.C. § 2-313] requires that a seller’s promise must “become[ ] the basis of the bargain” to form
an express warranty. The fifty states use at least three distinct approaches to this “reliance element.”
First, some states hold that reliance is not an element of an express warranty claim. Second, other
states require specific reliance on a seller’s statements as a condition of recovery. Finally, a few
states hold that promises relating to goods create a rebuttable presumption of reliance in favor of a
buyer.

Complicating matters further, states in the latter two groups sometimes require individualized
reliance for express warranty plaintiffs.
Chapman, 2017 WL 1433259, at *6-7 (footnotes omitted).
Warranty under the MMWA (15 U.S.C. § 2310) (Counts 5 and 7)

To state a claim for breach of warranty under Minnesota law, plaintiffs must establish
“(1) the existence of a warranty, (2) breach of the warranty, and (3) a causal link between the
breach and the alleged harm.” In re Zurn Pex Plumbing Prods. Liab. Litig., 267 F.R.D. 549, 562
(D. Minn. 2010), aff’d by In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604 (8th Cir.
2011). In the case at bar, plaintiffs allege that Sole affirmatively represented the CHP on
treadmills offered for residential use, that the treadmills are not able to achieve the stated CHP in
residential use, and that, as a result, plaintiffs overpaid for the treadmills purchased. Thus,
plaintiffs have stated a claim for breach of express warranty under Minnesota law. As the parties
recognize, the MMWA provides a federal avenue to assert state law breach of warranty claims so
decisions on the state law warranty claims determine the MMWA claims as well. See Mayernik
v. CertainTeed LLC, 476 F. Supp. 3d 625, 631 (S.D. Ohio 2020).
As to class certification, Sole first contends, citing Hendricks v. Callahan, 972 F.2d 190,
193-94 (8th Cir. 1992), that individualized proof that each putative Minnesota class member

relied on Sole’s CHP representation in purchasing a treadmill defeats predominance on
plaintiffs’ breach of express warranty claim. (Doc. 45 at PAGEID 608). However, reliance is no
longer an element of such a claim since Minnesota codified breach of express warranty involving
transactions in goods, and Hendricks does not apply here. In re Zurn Pex, 267 F.R.D. at 564
(“Hendricks did not involve a transaction in goods . . . § 336.2-313 replaced § 512.12 of the
[Minnesota] statutes and omitted the requirement that a buyer rely on an express warranty.”)
(internal quotation marks omitted).
Under Minnesota law:
Express warranties by a seller are created by an “affirmation of fact or promise”
relating to the goods, or a “description of the goods,” if made as part of the “basis
of the bargain.” Minn. Stat. § 336.2–313(1). “In actual practice, affirmations of
fact made by the seller about the goods during a bargain are regarded as part of the
description of those goods; hence no particular reliance on such statements need be
shown in order to weave them into the fabric of the agreement.” Id., UCC cmt. 3.

City of Wyoming v. Procter & Gamble Co., 210 F. Supp. 3d 1137, 1158 (D. Minn. 2016).
In the case at bar, Sole affirmatively represented the treadmills’ CHP as part of the sales
process, or bargain. Therefore, under Minnesota law, plaintiffs need not demonstrate particular
reliance on Sole’s representations “in order to weave them into the fabric of the agreement.” Id.
Sole next contends that the need for individualized proof to establish that plaintiffs were
injured by the alleged breach of warranty defeats Rule 23(b)(3) predominance. (Doc. 45 at
PAGEID 608-09). Sole mixes standing issues with predominance issues.
According to Sole, “[w]arranty claims in Minnesota do not permit a plaintiff to simply
allege that a product line contains a defect, but must plausibly allege that the product exhibited
the alleged defect.” (Doc. 45 at PAGEID 608) (citing George v. Uponor Corp., 988 F. Supp. 2d
1056, 1068 (D. Minn. 2013) which quotes In re Zurn Pex, 644 F.3d at 616)). In both George and
In re Zurn Pex, the courts concluded that class action plaintiffs have standing to sue if they offer
some evidence of a universal defect. George, 988 F. Supp. 2d at 1070 (standing would exist if
plaintiffs had “alleged plausible facts indicating that every Component made by Defendants will
manifest the defect”); In re Zurn Pex, 644 F.3d at 617 (“We conclude that the district court did
not err in concluding that the claims of the dry plaintiffs are cognizable under Minnesota
warranty law and that they may seek damages if they succeed in proving their claim of a
universal inherent defect in breach of warranty.”).
Plaintiffs here offer evidence that none of the treadmills are able to obtain the represented
CHP in household use because residential outlets cannot produce sufficient power to support that
CHP regardless of the speed setting, weight of the treadmill user, or any other individual
variable. As a result, treadmill purchasers allegedly overpaid for their treadmills, according to
plaintiffs’ economic expert. The determination of these issues will succeed or fail based on
evidence common to the class. For these reasons, common issues predominate pursuant to Rule
23(b)(3).

ii. Breach of Implied Warranty (Minn. Stat. § 336.2-314)8 (Count 6)
Pursuant to Minn. Stat. § 336.2-314(1), “a warranty that the goods shall be merchantable
is implied in a contract for their sale if the seller is a merchant with respect to goods of that
kind.” “Goods to be merchantable must be at least such as . . . conform to the promises or
affirmations of fact made on the container or label if any.” Minn. Stat. § 336.2-314(2)(f).
Sole contends that most treadmill purchasers are pleased with their treadmill performance
so “individualized inquiries into each members’ experience with their treadmill” defeats
predominance. (Doc. 45 at PAGEID 610). If plaintiffs alleged that the treadmills are not “fit for
the ordinary purposes for which such goods are used” pursuant to subsection (2)(c) of Minn.
Stat. § 336.2-314, individual proof may be required. However, plaintiffs here allege that Sole

breached subsection (2)(f) of the statute, requiring that the treadmills conform to “affirmations of
fact made on the container or label if any.” According to plaintiffs, Sole consistently labeled the

8 Pursuant to Minn. Stat. § 336.2-314:
(1) Unless excluded or modified (section 336.2-316), a warranty that the goods shall be
merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods
of that kind. Under this section the serving for value of food or drink to be consumed either on the
premises or elsewhere is a sale.
(2) Goods to be merchantable must be at least such as
(a) pass without objection in the trade under the contract description; and
(b) in the case of fungible goods, are of fair average quality within the description; and
(c) are fit for the ordinary purposes for which such goods are used; and
(d) run, within the variations permitted by the agreement, of even kind, quality and quantity within
each unit and among all units involved; and
(e) are adequately contained, packaged, and labeled as the agreement may require; and
(f) conform to the promises or affirmations of fact made on the container or label if any.
(3) Unless excluded or modified (section 336.2-316) other implied warranties may arise from course
of dealing or usage of trade.
treadmills with CHP ratings to which the treadmills did not and could not conform. Resolution
of whether the treadmills conform to consistent labels will succeed or fail based on evidence
common to the class. For these reasons, common issues predominate pursuant to Rule 23(b)(3).
c. Ohio Classes

Plaintiffs’ amended complaint alleges the following claims on behalf of the Ohio classes:
(1) breach of express warranty (Count 13); and (2) violation of the Ohio Consumer Sales
Practices Act, Ohio Rev. Code §1345.01 et seq. (Count 14). In addition, plaintiffs alleged a
breach of warranty under the MMWA claim on behalf of the nationwide class (Count 2) that the
Court has limited to the Ohio class.
i. Breach of Express Warranty (Count 13) and MMWA (Count 2)
As it did in contesting predominance for breach of express warranty and MMWA claims
for the Minnesota class, Sole contends that two issues thwart predominance for the Ohio class:
(1) reliance on Sole’s CHP representation in purchasing a treadmill; and (2) proof of an actual
injury. (Doc. 45 at PAGEID 614-15).

As to individual reliance, Ohio—like Minnesota—relies on comments to the Uniform
Commercial Code to reject the individual reliance argument where the seller makes express
affirmations of fact. Specifically:
Comment 3 indicates that UCC 2–313 is relevant to the question of whether an
express warranty has been created, and the basis-of-the-bargain rule is not
applicable to situations where written warranties are clear and express. A decisive
majority of courts that have considered this issue have reached the similar
conclusion that reliance is not an element in a claim for breach of an express written
warranty.

Norcold, Inc. v. Gateway Supply Co., 798 N.E.2d 618, 623-24 (Ohio Ct. App. 2003) (footnotes
omitted) (emphasis in original); Albright v. Sherwin-Williams Co., No. 1:17-CV-2513, 2019 WL
5307068, at *6 (N.D. Ohio Jan. 29, 2019) (quoting U.C.C. § 2-313, cmt. 3) (“A plaintiff is not
required to plead any ‘particular reliance on such statement . . . in order to weave them into the
fabric of the agreement.’”).
In this case, Sole made express written representations that each treadmill possessed a
specific CHP. Because Sole made express affirmations of fact, the CHP statements are woven

into the fabric of the agreement and plaintiffs need not establish individualized reliance on those
statements under Ohio law.
Sole next contends, relying on Phillips v. Philip Morris Cos., 298 F.R.D. 355 (N.D. Ohio
2014), that “whether each class member was damaged—and thereby has a cognizable claim—
will require ‘an individual inquiry that cannot be proven on a class-wide basis.’” (Doc. 45 at
PAGEID 615 (quoting Phillips, 298 F.R.D. at 365). However, in Rikos, the Sixth Circuit
distinguished Phillips because “denying class certification in a false advertising challenge to
Philip Morris’s claim that light cigarettes had low tar hinged on the plaintiffs’ inability to prove
that a common injury could be proved.” 799 F.3d at 521 (emphasis in original). In Rikos, as in
this case, if the product representations are proven true “even for only certain individuals, then

presumably Plaintiffs lose.” Id. at 522.
Plaintiffs offer evidence that none of the treadmills can obtain the represented CHP in
household use because residential outlets cannot produce sufficient power to support that CHP
regardless of the speed setting, weight of the treadmill user, or any other individual variable. As
a result, treadmill purchasers allegedly overpaid for their treadmills, according to plaintiffs’
economic expert. The determination of these issues will succeed or fail based on evidence
common to the class and not based on individual inquiries. For these reasons, common issues
predominate pursuant to Rule 23(b)(3).
ii. Ohio Consumer Sales Practices Act (Ohio Rev. Code § 1345.01, et seq.) (Count
14)

Sole correctly contends that the Ohio Consumer Sales Practices Act provides a two-year
statute of limitations which cannot be tolled by the Ohio discovery rule. (Doc. 45 at PAGEID
616). Plaintiffs acknowledge that Sole is correct on this issue and modified the requested Ohio
class to reflect the two-year limitations period on this claim. (Doc. 52 at PAGEID 932).
d. Damages
As described above, plaintiffs’ experts, Colin Weir and Steven Gaskin, propose to use
CBC analysis to determine the “price premium” treadmill purchasers allegedly paid due to Sole’s
CHP representations. In response, Sole’s expert, Kenneth Ugone, raises appropriate and
significant challenges to plaintiffs’ proposed analysis. Ugone opines that CBC analysis will
measure willingness to pay rather than price premium, that there are business considerations not
captured by the proposed model (i.e., supply side considerations), that the proposed analysis may
omit or overemphasize important variables that drive treadmill purchases, and that CHP “is not
an important attribute” in choosing a treadmill. (Doc. 45-2 at PAGEID 702-03). The issue
currently before the Court is whether these issues preclude class certification.
Both plaintiffs’ and defendant’s experts have appeared in many cases to offer potential
damages expertise. (Doc. 45-2 at PAGEID 729-50 (listing Ugone’s “selected litigation
consulting experience”); Doc. 38-10 at PAGEID 474-85 (listing cases in which Weir testified in

the last four years)). Several courts have had the opportunity to evaluate their methodologies as
applied to false advertising “price premium” putative class actions. See, e.g., Kurtz v. Costco
Wholesale Corp., 818 F. App’x 57 (2d Cir. 2020); Bailey v. Rite Aid Corp., 338 F.R.D. 390
(N.D. Cal. 2021); Mannacio v. LG Elecs. U.S.A., Inc., No. 16-CV-1220, 2020 WL 4676285 (D.
Minn. Aug. 12, 2020). In every one of these cases, courts found that the Weir and Gaskin CBC
analysis “satisfied [plaintiffs’] obligation to demonstrate predominance.” Kurtz, 818 F. App’x at
61 (affirming the certification of a Rule 23(b)(3) damages class for price premium paid for
bathroom wipes allegedly misrepresented as “flushable”); see also Bailey, 338 F.R.D. at 408-09
(certifying a Rule 23(b)(3) class and applying a Weir and Gaskin CBC analysis to

acetaminophen gel caps allegedly misrepresented as “rapid release”); Mannacio, 2020 WL
4676285, at *3-4 (denying summary judgment and motion to exclude Weir and Gaskin CBC
analysis in class action alleging consumers paid price premium for televisions misrepresented as
having a 120Hz or 240Hz refresh rates).
Sole contends that many consumers are fully satisfied with their treadmills and a “class
should not be certified if it is apparent that it contains a great many persons who have suffered no
injury.” (Doc. 45 at PAGEID 619 (quoting Phillips, 298 F.R.D. at 365). However, under the
plaintiffs’ theory of the case, all plaintiffs suffered the same injury, i.e., overpayment of a price
premium based on allegedly inflated CHP representations. Courts “routinely” uphold “choice-
based conjoint models that are designed to measure the amount of overpayment” in “mislabeling

cases where the injury suffered by consumers was in the form of an overpayment resulting from
the alleged misrepresentation at issue.” Bailey, 338 F.R.D. at 409.
Sole also contends that not all consumers place the same value on CHP in choosing a
treadmill and the proposed CBC analysis measures only a consumer’s willingness to pay. (Doc.
45 at PAGEID 619). “The fact that Weir’s model may fail to account for other possible sources
of a price premium simply means that his model may not ultimately prove [plaintiffs’] claims.”
Kurtz, 818 F. App’x at 62; see also Bailey, 338 F.R.D. at 410 (rejecting Rite Aid’s similar
contention as reflecting a “merits dispute about the scope of [its] liability [that] is not appropriate
for resolution at the class certification stage”) and Mannacio, 2020 WL 4676285, at *3-4
(rejecting contention that Gaskin’s model omits supply-side considerations and thus cannot
calculate an appropriate price premium).
As in Kurtz:
Defendants’ central contention is that Weir’s analysis either does not or cannot
establish a price premium because of issues such as an incomplete dataset, flawed
parameters of the regression, or business considerations not captured by the model.
A factfinder may ultimately agree. But if that is the case, then the class claims will
fail as a unit.

818 F. App’x at 62. Thus, like the plaintiffs in Kurtz, plaintiffs in this case have established that
common damages issues predominate over individual issues for Rule 23(b)(3) purposes.
Unlike in Kurtz, however, Weir and Gaskin have not yet performed the proposed CBC
analysis in this case,9 and “cherry-picking data to artificially generate a particular result may
render a model so unreliable that it is inadmissible.” Id. The Court has not yet conducted a full
Daubert hearing on the parties’ competing experts “[b]ecause class certification must occur at
‘an early practicable time after a person sues or is sued as a class representative.’” Lyngaas, 992
F.3d at 429 (quoting Fed. R. Civ. P. 23(c)(1)(A)). At this juncture, plaintiffs have offered expert
reports sufficient to “satisfy through evidentiary proof at least one of the provisions of Rule
23(b).” Id. at 428 (quoting Comcast Corp., 569 U.S. at 33). However, this “analysis is
necessarily prospective and subject to change” if evolving evidentiary issues so require. Id. at
429 (quoting In re Zurn Pex, 644 F.3d at 613).
2. Superiority
This inquiry focuses on whether the class action mechanism is “superior to other available
methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b). If a

9 “A plaintiff is not required to actually execute a proposed conjoint analysis to show that damages are capable of
determination on a class-wide basis with common proof.” Bailey, 338 F.R.D. at 408 n. 14. Comcast requires only
that “’damages are capable of measurement’ on a class-wide basis.” Id. (quoting Comcast, 569 U.S. at 34)
(emphasis added in Bailey).
proposed class meets this requirement, the class action would “achieve economies of time, effort,
and expense, and promote . . . uniformity of decision as to persons similarly situated, without
sacrificing procedural fairness or bringing about other undesirable results.” Martin v. Behr
Dayton Thermal Prod. LLC, 896 F.3d 405, 415 (6th Cir. 2018) (quoting Amchem Prods, Inc. v.

Windsor, 521 U.S. 591, 615 (1997)). “The policy at the very core of the class action mechanism
is to overcome the problem that small recoveries do not provide the incentive for any individual
to bring a solo action prosecuting his or her rights.” Amchem Prods., 521 U.S. at 617 (1997)
(citation omitted).
In this case, the parties do not dispute that individual damages are relatively small and
litigation expenses, particularly in view of the expert testimony required, are relatively large. As
the Court has determined that plaintiffs have established predominance, a class action is the
superior method for adjudicating this action.
V. Appointment of Class Counsel
The Court may appoint plaintiffs’ attorneys as class counsel only if they are deemed

adequate under Rule 23(g)(1) and (4). Fed. R. Civ. P. 23(g)(2). In making this determination, the
Court “must consider: (i) the work counsel has done in identifying or investigating potential
claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation,
and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class.” Fed. R. Civ. P.
23(g)(1)(A)(i)-(iv). In addition, “[c]lass counsel must fairly and adequately represent the interests
of the class.” Fed. R. Civ. P. 23(g)(4).
As demonstrated by the Declarations of Terence Coates and Nathan Prosser, plaintiffs’
attorneys are knowledgeable in the applicable law and highly experienced in litigating class
actions and other complex matters. (Doc. 38-12; Doc. 38-13). In addition, plaintiffs’ attorneys
indicate that they will commit the necessary resources to adequately represent the plaintiffs and
putative class members’ interests in this case. (Doc. 38-12 at PAGEID 540; Doc. 38-13 at
PAGEID 555) . Accordingly, the Court will appoint plaintiffs’ attorneys as class counsel in this

matter.
VI. Conclusion
For the reasons set forth above, Plaintiffs’ Motion for Class Certification and to Appoint
Class Representatives and Class Counsel (Doc. 37) is GRANTED IN PART AND DENIED IN
PART. Specifically, the Court orders the following:
1. Plaintiffs’ Minnesota Deceptive Trade Practices Act claim (Count 8), Minnesota
Prevention of Consumer Fraud Act claim (Count 9), Minnesota False Statement in
Advertising Act claim (Count 10), Minnesota Unlawful Trade Practices Act claim
(Count 11), and Minnesota claim for negligent misrepresentation (Count 12) are
DISMISSED.

2. Plaintiffs’ motion to certify a nationwide class is DENIED.
3. Plaintiffs’ motion to certify is GRANTED as to the following classes:
Ohio Class: All persons in Ohio who purchased a Sole F63 (3.0 CHP), Sole F65 (3.25
CHP), Sole S77 (4.0 CHP), Sole F80 (3.5 CHP), Sole F85 (4.0 CHP), Sole TT8 (4.0 CHP),
Sole F60 (2.75 CHP), Sole S73 (3.0 CHP), Sole F83 (3.25 CHP), and/or Sole TT9 (4.0
CHP) treadmill from August 30, 2015 through class certification, primarily for personal,
family, or household purposes, and not for resale. (Breach of express warranty and
Magnuson-Moss Warranty Act breach of express warranty).
Ohio Class: All persons in Ohio who purchased a Sole F63 (3.0 CHP), Sole F65 (3.25
CHP), Sole S77 (4.0 CHP), Sole F80 (3.5 CHP), Sole F85 (4.0 CHP), Sole TT8 (4.0 CHP),
and discontinued models Sole F60 (2.75 CHP), Sole S73 (3.0 CHP), Sole F83 (3.25 CHP),
and/or Sole TT9 (4.0 CHP) treadmill from August 30, 2017 through class certification,
primarily for personal, family, or household purposes, and not for resale. (Ohio Consumer
Sales Practices Act).
Minnesota Class: All persons in Minnesota who purchased a Sole F63 (3.0 CHP), Sole
F65 (3.25 CHP), Sole S77 (4.0 CHP), Sole F80 (3.5 CHP), Sole F85 (4.0 CHP), Sole TT8
(4.0 CHP), Sole F60 (2.75 CHP), Sole $73 (3.0 CHP), Sole F83 (3.25 CHP), and/or Sole
TT9 (4.0 CHP) treadmill from August 30, 2015 through class certification, primarily for
personal, family, or household purposes, and not for resale. (Breach of express warranty;
Magnuson-Moss Warranty Act breach of express warranty; breach of implied
warranty).
These classes expressly exclude Sole, its employees, agents, officers, directors, legal
representatives, successors, subsidiaries, parent entities, or predecessors and its employees;
and judicial officers and associated court staff assigned to this case.
4. Plaintiff Laura Bechtel is appointed class representative for the Ohio classes.
5. Plaintiff Troy Thoennes is appointed class representative for the Minnesota class.
6. Markovits, Stock & Demarco, LLC, and Hellmuth & Johnson, PLLC are appointed
class counsel.
IT IS SO ORDERED.

Date: _ 9/11/2021 Horan, Rethon2y
Karen L. Litkovitz
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10378576. Public record. Not legal advice.