BROWN v. SHARKNINJA OPERATING LLC

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

PATRICIA BROWN, on behalf of

herself and all others similarly Case No. 23–21135–ESK–MJS

situated,

Plaintiff,

OPINION

v.

SHARKNINJA OPERATING LLC,

Defendant.

KIEL, U.S.D.J.

THIS MATTER is before the Court on defendant SharkNinja Operating

LLC’s motion to dismiss (Motion) (ECF No. 10). Plaintiff Patricia Brown filed

an opposition (ECF No. 16 (Pl.’s Opp’n Br.)) to which defendant replied (ECF

No. 19 (Def.’s Reply Br.)).1 For the following reasons, the Motion will be

GRANTED.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is a domiciliary of Monmouth County, New Jersey. (ECF No. 1

(Compl.) p. 4.) She seeks to represent a class of consumers who purchased

defendant’s cookware in New Jersey based on representations that the

cookware would not stick, chip, or flake or that the cookware was manufactured

at 30,000 degrees Fahrenheit. (Id. pp. 14, 15.) Defendant is a Delaware

limited liability company principally based in Massachusetts that markets,

sells, and distributes household goods. (Id. p. 4.)2

1 This case was reassigned to me after briefing had concluded. (ECF No. 20.)

2 The citizenship of a limited liability company for diversity jurisdiction purposes

is determined by the citizenship of each of its members. Zambelli Fireworks Mfg. Co.,

Inc. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010). Defendant’s corporate disclosure

In response to a complaint by defendant’s competitor, the National

Advertising Division of Better Business Bureau National Programs (National

Advertising Division) ruled in August 2021 that defendant’s claims that its

NeverStick Premium Cookware “‘never sticks’ … convey[ed] an unsupported

superiority message that, unlike traditional non-stick cookware which rapidly

loses its non-stick properties, NeverStick cookware would exhibit a greater level

of resistance against sticking, chipping, and flaking.” (Id. pp. 6, 7.)

Defendant later changed its packaging and advertising to include claims that

products “[w]on’t” rather than will “[n]ever” stick, chip, or flake. (Id. pp. 7, 8.)

Both before and after the ruling, defendant promoted its NeverStick Premium

Cookware as being manufactured using a 30,000-degree process that ensured

that products would not stick, chip, of flake while competitors merely

manufactured products at 900 degrees. (Id. p. 8.)

Defendant’s claims on packaging and in product descriptions are false,

misleading, and deceiving to a reasonable consumer for two reasons, according

to plaintiff. (Id. p. 12.) First, defendant’s products do chip, flake, and lose

their nonstick properties within a few months of purchase or lose their nonstick

properties more rapidly than the less-expensive products of competitors. (Id.)

Second, defendant’s purported 30,000-degree manufacturing process not only

fails to ensure that products will not chip, flake, or lose their nonstick

properties, but the process itself is impossible as aluminum would vaporize at

such temperatures. (Id.)

Plaintiff purchased two of defendant’s 12-inch frying pans from Macy’s

website in September 2021. (Id. p. 13.) Prior to her purchase, plaintiff viewed

defendant’s “NeverStick” brand name; claim that products either never or

statement represents that after several layers of wholly owned entity after wholly

owned entity, the remaining entity is “SharkNinja, Inc., a publicly held exempted

company incorporated in the Cayman Islands.” (ECF No. 8.)

would not stick, chip, or flake as compared to competing products; and that

products would not rapidly lose their nonstick properties due to defendant’s

30,000-degree manufacturing process. (Id.) If plaintiff knew that

defendant’s products chip, flake, or lose their nonstick properties within a few

months or more rapidly than less-expensive competitors; defendant’s purported

30,000-degree manufacturing process is impossible or fails to ensure that

products will not chip, flake, or lose their nonstick properties; and defendant’s

claims were deceptive she would not have purchased the pans or would not have

paid a premium price for them. (Id. pp. 13, 14.) Plaintiff states as an example

that defendant’s 10- and 12-inch NeverStick Premium Cookware pans sell for

$49.99 and $59.99, respectively. (Id. p. 14.) Comparable Farberware 10- and

12-inch pans sell for $8.97 and $19.99, respectively, with three-pan sets

available for $22.99. (Id.)

Plaintiff asserts a single count, violation of the New Jersey Consumer

Fraud Act (Consumer Fraud Act). (Id. p. 17.) Defendant continues to violate

the Consumer Fraud Act through deception, fraud, false promises, or

misrepresentations, according to plaintiff. (Id. p. 18.) Plaintiff and proposed

class members have suffered economic injuries because they otherwise would

not have purchased defendant’s products or would not have paid as much for

them. (Id. pp. 17, 18.) Plaintiff seeks class certification, damages, statutory

treble damages, interest, and reasonable fees and costs. (Id. p. 18.)

II. STANDARDS

A. Motions to Dismiss

Prior to the filing of a responsive pleading, a defendant may move to

dismiss a complaint for failure to state a claim upon which relief can be granted.

See Fed. R. Civ. P. 12(b)(6). To survive dismissal under Rule 12(b)(6), “a

complaint must provide ‘a short and plain statement of the claim showing that

the pleader is entitled to relief,’” Doe v. Princeton Univ., 30 F.4th 335, 341 (3d

Cir. 2022) (quoting Fed. R. Civ. P. 8(a)(2)), and—accepting the plaintiff’s factual

assertions, but not legal conclusions, as true—“‘plausibly suggest[]’ facts

sufficient to ‘draw the reasonable inference that the defendant is liable for the

misconduct alleged,’” id. at 342 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 557 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Courts further

evaluate the sufficiency of a complaint by “(1) identifying the elements of the

claim, (2) reviewing the complaint to strike conclusory allegations, and then (3)

looking at the well-pleaded components of the complaint and evaluating

whether all of the elements identified in part one of the inquiry are sufficiently

alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

B. Consumer Fraud Act

The Consumer Fraud Act prohibits:

The act, use or employment by any person of any

commercial practice that is unconscionable or abusive,

deception, fraud, false pretense, false promise,

misrepresentation, or the knowing, concealment,

suppression, or omission of any material fact with intent

that others rely upon such concealment, suppression or

omission, in connection with the sale or advertisement of

any merchandise ….

N.J. Stat. Ann. § 56:8–2.

In order to state a claim under the Consumer Fraud Act, a plaintiff “must

allege: ‘(1) unlawful conduct; (2) an ascertainable loss; and (3) a causal

relationship between the unlawful conduct and the ascertainable loss.’”

Calabria Ristorante, Inc. v. Ruggiero Seafood, Inc., 706 F. Supp. 3d 489, 514

(D.N.J. 2023) (quoting Francis E. Parker Mem’l Home, Inc. v. Ga.-Pac. LLC, 945

F. Supp. 2d 543, 558 (D.N.J. 2013)). The heightened pleading standard of

Federal Rule of Civil Procedure (Rule) 9(b) applies to claims brought under the

Consumer Fraud Act. Mladenov v. Wegmans Food Mkts., Inc., 124 F. Supp. 3d

360, 373 (D.N.J. 2015). To satisfy this heightened pleading standard, the

plaintiff must set forth their allegation “with sufficient particularity to place

the defendant on notice of the precise misconduct with which it is charged and

plead or allege the date, time and place of the alleged fraud or otherwise inject

precision or some measure of substantiation into a fraud allegation.” Calabria

Ristorante, Inc., 706 F. Supp. 3d at 515 (quoting Alpizar-Fallas v. Favero, 908

F.3d 910, 919 (3d Cir. 2018)).

III. DISCUSSION

A. Party Arguments

Defendant asserts that plaintiff’s claims fail for two reasons: she has not

alleged a misrepresentation or an ascertainable loss. (ECF No. 10–1 (Def.’s

Mot. Br.) p. 11.) With respect to its assertion that a misrepresentation has not

been alleged, defendant contends that it has represented that super-heated

plasma ceramic particles are fused to its pans, not that the pans themselves are

heated to 30,000 degrees. (Id. p. 14) The screenshot of a 40-second video

included in the complaint mischaracterizes the 30,000-degree representation

and omits the fact that a reasonable consumer watching the video would know

that ceramic particles, not the pan, are heated at such temperatures. (Id.)

Plaintiff has not claimed that defendant’s actual representations are false by

alleging that defendant’s manufacturing process does not create a superior bond

as compared to competitors’ processes or that her pans have actually chipped,

flaked, or lost their nonstick properties. (Id. p. 15.) Generally, plaintiff has

failed to plead with particularity as required by Rule 9(b), according to

defendant. (Id. pp. 15, 16.)

Next, defendant contends that plaintiff has not pleaded an ascertainable

loss. Plaintiff has not alleged that her pans are worthless, according to

defendant. (Id. p. 17.) Therefore, she was required to show the difference

between the pans that she was promised and the ones that she received. (Id.)

Plaintiff was promised a more durable, nonstick surface and the complaint does

not allege that defendant’s pans did not provide a more durable, nonstick

surface or that her pans actually chipped, flaked, or lost their nonstick

properties. (Id. pp. 18, 19.) The complaint further fails to allege what

plaintiff actually paid for her pans or that Farberware products are comparable

in quality, durability, or material. (Id. pp. 19, 20.)

Plaintiff responds that whether a statement has a capacity to mislead is a

question of fact inappropriate for a motion to dismiss and that her pleading

satisfies Rule 9(b)’s standard. (Pl.’s Opp’n Br. pp. 13, 14.) Defendant has

falsely and misleadingly conveyed to consumers that cookware manufactured

at 30,000 degrees is superior to products manufactured at lower

temperatures—a claim that is especially deceptive when combined with the

“NeverStick” brand name. (Id. pp. 15–20). Defendant engages in “sleight of

hand” by arguing that its advertising imagery is not meant to convey that entire

pans are manufactured at 30,000 degrees, according to plaintiff. (Id. pp. 20,

21.) The advertising imagery lacks any representations that ceramic particles,

not pans, are heated to 30,000 degrees and the notion that any aluminum pan

may come into contact with a particle heated at 30,000 degrees defies physics.

(Id. p. 21.) The average consumer associates ovens and stoves with high

temperatures and would be misled by representations of a 30,000-degree

manufacturing process paired with claims that products “[n]ever” or “[w]on’t”

stick, even if defendant’s representations are literally true in part. (Id. pp. 23,

24.) Plaintiff asserts that her claims are buttressed by the 2021 National

Advertising Division ruling. (Id. pp. 25–28.)

Plaintiff adds that she has adequately pleaded an ascertainable loss based

on price premium, with sample prices of defendant’s products and comparable

competing products provided. (Id. pp. 30–32.) Defendant’s argument that

Farberware products are not comparable to its own is inappropriate for the

pleading stage, according to plaintiff. (Id. p. 32.) Finally, plaintiff requests

that if the Court decides to grant dismissal based on a pleading deficiency, that

it do so without prejudice. (Id. pp. 33, 34.)

B. Analysis

Unlawful conduct under the Consumer Fraud Act “falls into three general

categories: ‘affirmative acts, knowing omissions, and violation of regulations

promulgated under N.J. Stat. Ann. §§ 56:8–2, 56:8–4.’” Dzielak v. Whirlpool

Corp., 26 F. Supp. 3d 304, 333 (D.N.J. 2014) (quoting Harnish v. Widener Univ.

Sch. of Law, 931 F. Supp. 2d 641, 648 (D.N.J. 2013)). Plaintiff’s complaint and

opposition make clear that she alleges that defendant has engaged in

affirmative misrepresentative acts. (Compl., Pl.’s Opp’n Br.) To meet the

Rule 9(b) pleading standard for affirmative acts, “a plaintiff need not plead the

particular date, time or place of the fraud; however, ‘the plaintiff must indicate

at the very least who made the material representation giving rise to the claim

and what specific representations were made.’” Mladenov, 124 F. Supp. 3d at

373 (quoting NN & R, Inc. v. One Beacon Ins. Grp., 362 F. Supp. 2d 514, 518

(D.N.J. 2005)).

Here, plaintiff alleges that she viewed defendant’s “NeverStick” brand

name; claim that products do not stick, chip, or flake; and representation that

products do not rapidly lose their nonstick properties as compared to competing

products due to its 30,000-degree manufacturing process. (Compl. p. 13.)

Plaintiff alleges that she viewed these representations prior to her purchase of

two pans in September 2021. (Id.)

The parties’ briefing separate defendant’s alleged misrepresentations into

two general categories: 1) that defendant’s products are manufactured at 30,000

degrees and 2) that defendant’s products do not stick, chip, or flake. On the

issue of defendant’s 30,000-degree manufacturing process, defendant contends

that it has made no representation that entire pans, rather than plasma

ceramic particles sprayed onto the pans, are heated to 30,000 degrees. (Def.’s

Mot. Br. p. 14.) Defendant asserts that plaintiff mischaracterizes its

advertisement by omitting a frame that states that plasma ceramic particles

are heated to 30,000 degrees. (Id. pp. 8, 14.)

There are two problems with defendant’s rebuttal. First, a district court

may not consider materials extraneous to the pleading when ruling on a motion

to dismiss. See Doe, 30 F.4th at 342. Exceptions include materials integral

to, or explicitly relied upon in, the pleading such as “exhibits attached to the

Complaint, matters of public record, and undisputedly authentic documents if

the plaintiff’s claims are based upon those documents.” Red Hawk Fire & Sec.,

LLC v. Siemens Indus. Inc., 449 F. Supp. 3d 449, 459 (D.N.J. 2020). Second,

literally true statements may nonetheless mislead a consumer. Smajlaj v.

Campbell Soup Co., 782 F. Supp. 2d 84, 98 (D.N.J. 2011).

Defendant’s argument and, especially, its reference to additional frames

of its advertisement do not fit within the narrow carve-out of extraneous

materials that I may consider at this stage. See Red Hawk Fire & Sec., LLC,

449 F. Supp. 3d at 459. If defendant believes that plaintiff has misled the

Court, its proper recourse is to move for sanctions by asserting that plaintiff’s

factual contentions do not and will not have evidentiary support. See Fed. R.

Civ. P. 11(b)(3), (c); see also Shepperson v. Hernandez, Case No. 19–19305, 2021

WL 2104978, at *3, 3 n. 2 (D.N.J. May 25, 2021) (accepting the plaintiff’s

allegations at the dismissal stage as true, presuming compliance with Rule 11,

and noting that Rule 11 sanctions could later be imposed if the plaintiff did not

have a good-faith belief that factual contentions would have evidentiary

support). I will not expand the record at the dismissal stage.

Plaintiff’s claim that products chip, flake, and lose their nonstick

properties provides a thornier issue. As defendant notes (Def.’s Mot. Br. p. 15),

plaintiff does not allege in the complaint that her pans have chipped, flaked, or

lost their nonstick properties. Plaintiff attempts to remedy this omission in

her opposition (Pl.’s Opp’n Br. p. 15), but “it is ‘axiomatic that the complaint

may not be amended by the briefs in opposition to a motion to dismiss.’” Olson

v. Ako, 724 F. App’x 160, 166 (3d Cir. 2018) (quoting Commonwealth of Pa. ex

rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988)). I further

decline plaintiff’s invitation to infer from the National Advertising Division’s

ruling that defendant conveys a false and misleading message of superiority

that its products feature a greater resistance to chipping, flaking, and losing

their nonstick properties. (Pl.’s Opp’n Br. pp. 30, 31.)

Without claiming that her pans actually chipped, flaked, or lost their

nonstick properties, plaintiff does not plead how the pans “fell short of [her]

expectations.” See Mason v. Coca-Cola Co., 774 F. Supp. 2d 699, 703 (D.N.J.

2011) (stating that the claim that Diet Coke Plus contained vitamins and

minerals was true and that the plaintiffs failed to allege what further

expectations they may have had or how those expectations were not met).

Instead, the complaint reads as an attempt to convert the National Advertising

Division ruling into a cause of action untethered to a named plaintiff.

Even if I were to look past this deficiency for the purposes of the unlawful-

conduct prong of the Consumer Fraud Act analysis, it would rear its head in

determining whether plaintiff has pleaded an ascertainable loss. Out-of-

pocket-loss and benefit-of-the-bargain are the two theories of ascertainable loss

under the Consumer Fraud Act. Mladenov, 124 F. Supp. 3d at 375. Out-of-

pocket-loss is only applicable if the product is essentially worthless. Id. The

“benefit-of-the-bargain theory requires that the consumer be misled into buying

a product that is ultimately worth less than the product that was promised.”

Id. A plaintiff must allege that the misrepresentation induced an objectively

reasonable and unmet expectation, but unmet expectation is alone insufficient

to claim an ascertainable loss. Dzielak, 26 F. Supp. 3d at 335. Rather, the

plaintiff must have received a product worth objectively less than what was

reasonably expected and quantify the difference between the product promised

and the product received. Id.

Plaintiff makes clear that her theory of ascertainable loss is based on the

purported premium that she paid for defendant’s pans as compared to

competing products. (Pl.’s Opp’n Br. pp. 31–33.) However, if it was plaintiff’s

expectation that the pans would not chip, flake, or lose their nonstick properties

due to defendant’s claims to that effect, “Neverstick” brand name, purported

30,000-degree manufacturing process, or the like, the complaint does not allege

that that expectation was unmet. See Smajlaj, 782 F. Supp. 2d at 99 (“[T]he

plaintiff must allege a reasonable expectation about the product induced by a

misrepresentation, and that this expectation was not met.” (emphasis added)).

Again, without an allegation that plaintiff herself received a product worth less

than her reasonable expectation, the complaint resorts to relying on general

allegations and the National Advertising Division ruling. Insofar as a cause

of action may exist, plaintiff has not demonstrated that she may bring it. See

Dzielak, 26 F. Supp. 3d at 332 n. 18 (“The fact that a suit is brought as a class

action ‘adds nothing to the question of standing, for even named plaintiffs who

represent a class “must allege and show that they personally have been injured,

not that injury has been suffered by other, unidentified members of the class to

which they belong and which they purport to represent.”‘” (quoting Simon v. E.

Ky. Welfare Rights Org., 426 U.S. 26, 40 (1976))).

The complaint will therefore be dismissed for failure to state a Consumer

Fraud Act claim. Defendant contends that amendment would be futile.

(Def.’s Reply Br. pp. 13, 14.) I disagree. Dismissal will therefore be without

prejudice to plaintiff’s filing of an amended complaint. See Peruto v.

TimberTech Ltd., 126 F. Supp. 3d 447, 461 (D.N.J. 2015) (“Because the Court

cannot conclude that amendment would be futile, dismissal will be without

prejudice to Plaintiffs’ right to file an amended pleading curing the identified

deficiencies within twenty-one (21) days.”). If plaintiff elects to file an

amended complaint, she shall do so in compliance with Local Civil Rule 15.1,

including providing a copy of the amended complaint that reflects the

differences between the original and amended complaints.3

IV. CONCLUSION

For the foregoing reasons, defendant’s Motion (ECF No. 10) will be

GRANTED. An appropriate order accompanies this opinion.

/s/ Edward S. Kiel

EDWARD S. KIEL

UNITED STATES DISTRICT JUDGE

Dated: October 23, 2024

3 The parties did not brief, and this opinion is not premised on, the issue of

jurisdiction. However, any amended complaint should also more fully address how

the jurisdictional amounts are met. Plaintiff premises jurisdiction on both the Class

Action Fairness Act pursuant to 28 U.S.C. § 1332(d) and diversity jurisdiction pursuant

to 28 U.S.C. § 1332(a). (Compl. p. 5.) Insofar as jurisdiction is premised on diversity,

“in a 28 U.S.C. § 1332 diversity action, a named plaintiff must satisfy the amount in

controversy requirement.” O’Brien v. Compass Grp. USA, Inc., Case No. 17–13327,

2018 WL 5283939, at *2 n. 1 (D.N.J. Oct. 1, 2018) (quoting Czarnecki v. Hawthorn Mfg.

Corp., Case No. 08–05558, 2009 WL 159806, at *3 (E.D. Pa. Jan. 16, 2009)). It

appears improbable that plaintiff alone can satisfy the $75,000 jurisdictional amount

in a case in which damages are premised on a purported premium price of, on the high-

end, $59.99. (Compl. p. 14.) Jurisdiction under the Class Action Fairness Act

requires that the “matter in controversy exceeds the sum or value of $5,000,000,

exclusive of interest and costs.” 28 U.S.C. § 1332(d)(2). Plaintiff’s complaint does not

appear to plausibly allege that the amount in controversy exceeds the $5,000,000

threshold. (See Compl. p. 5 (alleging only that “the amount in controversy exceeds the

sum or value of $5,000,000.00, exclusive of interest and costs”).) I express my

concerns with plaintiff’s ability to meet it due—again—to the relatively nominal

individual values at stake. An amended complaint should provide greater detail as to

the value of the individual claims, number of potential class members, or similar

information. If plaintiff is unable to provide such details, she should proffer what

relevant information may be obtained through pre-dismissal jurisdictional discovery.