Mouzon v. Radiancy, Inc. , 85 F. Supp. 3d 361 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAN MOUZON, et al.,
Plaintiffs
v. Civil Action No. 14-722 (CKK)
RADIANCY, INC., et al.,
Defendants
MEMORANDUM OPINION
(March 30, 2015)
This action arises from the advertising and sale of a product called the no!no! Hair
removal device (the “product”) by Defendant Radiancy, Inc. (“Radiancy”). Thirteen plaintiffs
from Washington, D.C., California, Florida, Illinois, Maryland, Virginia, Pennsylvania,
Colorado, West Virginia, and Tennessee bring this putative class action against Radiancy, Inc.,
and its CEO Dolev Rafaeli. Together Plaintiffs bring the claims in this action on their own behalf
and on behalf of a putative nationwide class, or alternatively, on behalf of ten subclasses, each
limited to the residents of a single state. First, all Plaintiffs bring a claim pursuant to New York
General Business Law §§ 349-350, on their own behalf and on behalf of the putative nationwide
class, alleging that Defendants engaged in “a scheme to deceive customers and the public”
(Count 1). Second, Plaintiffs bring claims pursuant to state consumer protection laws on their
behalf and on behalf of the respective putative state subclasses (Count 2 through 12). 1 Third, and
1
Plaintiffs bring the following state law claims with respect to specific Plaintiff subclasses:
• On behalf of the putative California subclass, Plaintiffs bring claims for violation of the
California Consumer Legal Remedies Act (Count 2), the California Unfair Competition
Law (Count 3), and the California False Advertising Law (Count 4).
• On behalf of the putative District of Columbia subclass, Plaintiffs bring a claim for
violation of the D.C. Consumer Protections Procedures Act (Count 5).
• On behalf of the putative Florida subclass, Plaintiffs bring a claim for violation of the
Florida Deceptive and Unfair Trade Practices Act (Count 6).
1
finally, Plaintiffs bring warranty-based claims on their own behalf and on behalf of the putative
nationwide class and the putative state subclasses. Specifically, Plaintiffs bring a claim for breach
of express warranty (Count 13); a claim for breach of implied warranty of merchantability and
fitness for a particular purpose (Count 14); and a claim for violation of the federal Magnuson-
Moss Warranty Act (Count 15). Defendant Radiancy moves to dismiss for failure to state a claim.
Defendant Rafaeli moves to dismiss for lack of personal jurisdiction over him and for failure to
state a claim. Rafaeli joins Radiancy’s arguments regarding the failure to state a claim and
presents separate arguments as to why the Complaint fails to state a claim against him.
Before the Court is Defendant Radiancy’s [14] Motion to Dismiss and Defendant
Rafaeli’s [13] Motion to Dismiss Putative Class Action Complaint. Upon consideration of the
pleadings, 2 the relevant legal authorities, and the record as a whole, the Court GRANTS
• On behalf of the putative Illinois subclass, Plaintiffs bring a claim for violation of the
Illinois Consumer Fraud and Deceptive Business Practices Act (Count 7).
• On behalf of the putative Maryland subclass, Plaintiffs bring a claim for violation of the
Maryland Consumer Protection Act (Count 8).
• On behalf of the putative Virginia subclass, Plaintiffs bring a claim for violation of the
Virginia Consumer Protection Act (Count 9).
• On behalf of the putative Colorado subclass, Plaintiffs bring a claim for violation of the
Colorado Consumer Protection Act (Count 10).
• On behalf of the putative West Virginia subclass, Plaintiffs bring a claim for violation of
the West Virginia Consumer Protection Act (Count 11).
• On behalf of the putative Pennsylvania subclass, Plaintiffs bring a claim for violation of
the Pennsylvania Unfair Trade Practices and Consumer Protection Law (Count 12).
Plaintiffs bring no separate claim on behalf of the putative Tennessee subclass.
2
The Court’s consideration has focused on the following documents:
• Pls.’ Complaint (“Compl.), ECF No. 1;
• Def. Dolev Rafaeli’s Mot. to Dismiss Putative Class Action Compl. (“Rafaeli Mot.”),
ECF No. 13;
• Def. Radiancy, Inc.’s Mot. to Dismiss (“Radiancy Mot.”), ECF No. 14;
• Pls.’ Mem. of Points and Authorities in Opp’n to Def. Rafaeli’s Mot. to Dismiss Pls.’
Class Action Compl. (“Pls.’ Rafaeli Opp’n”), ECF No. 16;
2
Defendant Radiancy’s [14] Motion to Dismiss and GRANTS Defendant Rafaeli’s [13] Motion to
Dismiss Putative Class Action Complaint. All claims against Rafaeli are DISMISSED for want
of personal jurisdiction, and Plaintiffs’ request for jurisdictional discovery with respect to Rafaeli
is DENIED. All claims against Radiancy are DISMISSED because they fail to state a claim.
Specially, the claim pursuant to New York General Business Law §§ 349-50 (Count 1) and the
implied warranty of fitness for a particular purpose claim (Count 14, part 2) are dismissed WITH
PREJUDICE. The state-specific consumer protection claims (Counts 2 through 12), the express
warranty claim (Count 13), the implied warranty of merchantability claim (Count 14, part 1), and
the Magnuson-Moss Warranty Act claim (Count 15) are dismissed WITHOUT PREJUDICE.
Finally, Plaintiffs’ cursory request to amend the complaint is DENIED. This action is dismissed
in its entirety.
I. BACKGROUND
For the purposes of the motion before the Court, the Court accepts as true the well-
pleaded allegations in Plaintiff’s Complaint. The Court does “not accept as true, however, the
plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp.
v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). The Court recites the
principal facts pertaining to the issues raised in the pending motions, reserving further
presentation of the facts for the discussion of the individual issues below.
• Pls.’ Mem of Points and Authorities in Opp’n to Def. Radiancy’s Mot. to Dismiss Pls.’
Class Action Compl. (“Pls.’ Radiancy Opp’n”), ECF No. 17;
• Def. Radiancy’s Reply Mem. of Points and Authorities in Supp. of its Mot. to Dismiss
(“Radiancy Reply”), ECF No. 18; and
• Def. Dr. Rafaeli’s Reply Mem. of Points and Authorities in Supp. of its Mot. to Dismiss
(“Rafaeli Reply”), ECF No. 19.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
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The no!no! Hair removal device is manufactured and distributed by Defendant Radiancy.
Compl. ¶ 1. Radiancy has marketed the device as capable of permanent or “long term” hair
removal by suppressing hair growth. Id. ¶ 2. However, Plaintiffs allege that this claim is false and
that the device cannot destroy hair follicles or suppress the ability of hair to regrow. Id. ¶ 4.
Plaintiffs further allege that Radiancy engaged in a deceptive marketing campaign, using
television and Internet advertisements that misrepresent the characteristics of the devices. Id. ¶ 6.
With respect to Rafaeli, Plaintiffs allege that he “personally supervised, controlled, directed, and
profited from” the marketing campaign. Id. ¶ 7.
Plaintiffs are thirteen individuals from nine different states and the District of Columbia
who purchased the device between June 2010 and December 2013. See id. ¶¶ 13-25. Plaintiffs
are one resident of the District of Columbia, one resident of California, two residents of Florida,
one resident of Illinois, two residents of Maryland, two residents of Virginia, one resident of
Pennsylvania, one resident of Colorado, one resident of West Virginia, and one resident of
Tennessee. See id. The Plaintiffs allege the following regarding each individual plaintiff:
Defendants’ infomercial that Plaintiff viewed prior to purchase prominently
displayed the promise of long term or permanent hair removal by suppressing or
slowing the regrowth of hair, among other misrepresentations. Plaintiff reasonably
relied on Defendants’ representations in purchasing the no!no! product. Had
Plaintiff known that the Product was unable to prevent hair regrowth and could
not live up to its other representations, Plaintiff would not have bought the
Product. As a result of Radiancy’s and Rafaeli’s conduct as alleged herein,
Plaintiff has been injured.
Id. ¶¶ 13-25. With respect to each individual, Plaintiffs allege the name, the state of residence,
and the date or approximate date of the purchase of the product; those details are reproduced in
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full in the margin. 3 The Court notes that the Complaint does not include any other allegations
regarding the individual plaintiffs, their experiences with the no!no! Hair removal device, or their
exposure to Radiancy’s representations of the device. See id. ¶¶ 1-12, 26-314. The Court reserves
further presentation of facts pertinent to Plaintiffs’ specific claims and Defendants’ defenses for
the discussion below.
II. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.
R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that
3
The following is a list of each Plaintiff, the state of residence at the time the Complaint was
filed, and the date of purchasing the product:
• Jan Mouzon (District of Columbia), product purchase between June 2010 and April 26,
2011. Compl. ¶ 13.
• Sarah Coe (California), product purchase on or about May 31, 2012. Id. ¶ 14.
• Patricia Bennett (Florida), product purchase on or about June 6, 2012. Id. ¶ 15.
• Jan Steich (Florida), product purchase on or about December 2013. Id. ¶ 16.
• Rosalie Tecktiel (Illinois), product purchase on or about April 20, 2013. Id. ¶ 17.
• Alice Largen (Maryland), product purchase on or about February 2012. Id. ¶ 18.
• Lorie Hurst (Maryland), product purchase on or about July 8, 2012. Id. ¶ 19.
• Rachel Dondero (Virginia), product purchase on or about July 22, 2012. Id. ¶ 20.
• Nancy Moore (Virginia), product purchase on or about December 7, 2012. Id. ¶ 21.
• Michele Uram (Pennsylvania), product purchase on or about April 2013. Id. ¶ 22.
• Kris Steinbauer (Colorado), product purchase on or about September 2012. Id. ¶ 23.
• Juanita Humbertson (West Virginia), product purchase on or about November 2012. Id.
¶ 24.
• Al Oliveria (Tennessee), product purchase on or about 2013. Id. ¶ 25.
5
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. In deciding a Rule 12(b)(6) motion, a court may consider “the
facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the
complaint,” or “documents upon which the plaintiff’s complaint necessarily relies even if the
document is produced not by the plaintiff in the complaint but by the defendant in a motion to
dismiss.” Ward v. District of Columbia Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119
(D.D.C. 2011) (citations omitted).
When personal jurisdiction is challenged under Rule 12(b)(2), the plaintiff bears the
burden of establishing a factual basis for asserting personal jurisdiction over a defendant. See
Crane v. N.Y. Zoological Soc’y, 894 F.2d 454, 456 (D.C. Cir. 1990). At this stage, Plaintiffs “can
satisfy that burden with a prima facie showing.’” Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir.
2005) (quoting Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 424 (D.C. Cir.
1991)). To do so, the plaintiff cannot rest on bare allegations or conclusory statements but “must
allege specific acts connecting [the] defendant with the forum.” Second Amendment Found. v.
U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001) (internal quotation marks
omitted). “To make such a showing, the plaintiff is not required to adduce evidence that meets
the standards of admissibility reserved for summary judgment and trial[;]” but rather, the
plaintiffs may “rest [their] arguments on the pleadings, ‘bolstered by such affidavits and other
written materials as [they] can otherwise obtain.’” Urban Inst. v. FINCON Servs., 681
F. Supp. 2d 41, 44 (D.D.C. 2010) (quoting Mwani, 417 F.3d at 7).
In order to obtain jurisdictional discovery a “plaintiff must have at least a good faith
belief that such discovery will enable it to show that the court has personal jurisdiction over the
defendant.” Caribbean Broad. Sys. Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir.
6
1998); see also Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F. Supp. 2d 1, 11
(D.D.C. 2009) (holding that [j]urisdictional discovery … is justified only if the plaintiff
reasonably ‘demonstrates that it can supplement its jurisdictional allegations through
discovery.’”) (quoting Kopff v. Battaglia, 425 F. Supp. 2d 76, 89 (D.D.C. 2006)). “Mere
conjecture or speculation” is not enough to justify jurisdictional discovery. FC Investment Group
LC v. IFX Markets Ltd., 529 F.3d 1087, 1094 (D.C. Cir. 2008).
III. DISCUSSION
Defendant Radiancy moves to dismiss, arguing that the Complaint fails to state a claim.
Defendant Rafaeli moves to dismiss, as well, arguing that this Court does not have personal
jurisdiction over him. He also joins Radiancy’s arguments with respect to the failure to state a
claim and presents additional arguments about why the Complaint fails to state a claim against
him. The Court first considers whether it has jurisdiction over Rafaeli. Because the Court
concludes it does not have personal jurisdiction over Rafaeli in this action, it does not consider
his arguments that the Complaint fails to state a claim against him. The Court also concludes that
jurisdictional discovery with respect to Rafaeli is not warranted. The Court next considers
Radiancy’s arguments that the Complaint fails to state a claim, considering in turn the arguments
with respect to each claim in the Complaint. The Court concludes that the Complaint does not
state a claim against Radiancy.
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A. Personal Jurisdiction over Rafaeli
1. The Court Does Not Have Personal Jurisdiction Over Defendant Rafaeli
Plaintiffs assert that the Court has specific jurisdiction 4 over Defendant Rafaeli under the
District of Columbia’s long-arm statute, D.C. Code § 13-423(a)(1) and (a)(4). See Pls.’ Rafaeli
Opp’n at 5. Defendant Rafaeli contests this jurisdiction. See Rafaeli Mot. at 8-12. The District of
Columbia’s long-arm statute, in relevant part, states:
(a) A District of Columbia court may exercise personal jurisdiction over a person,
who acts directly or by an agent, as to a claim for relief arising from the
person’s—
(1) transacting any business in the District of Columbia;
***
(4) causing tortious injury in the District of Columbia by an act or
omission outside the District of Columbia if he regularly does or solicits
business, engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed, or services rendered, in
the District of Columbia.
D.C. Code § 13-423 (a)(1), (4). Plaintiffs argue that under subsection (a)(1), Radiancy’s
transaction of business in the District of Columbia should be “imputed” to Rafaeli because of his
role at the corporation, relying on the “more than an employee” exception of the fiduciary shield
doctrine. Pls.’ Rafaeli Opp’n at 5. Additionally, Plaintiffs argue the Court has jurisdiction over
Rafaeli under subsection (a)(4) because Rafaeli caused tortious injury in the District of Columbia
and “[g]iven the expansive and deceptive marketing campaign authorized and implemented by
Rafaeli, which included the broadcasting of infomercials aimed at residents of the District (and
other jurisdictions), Rafaeli sought business opportunities in the District and derived substantial
income … in the District.” Id. at 12.
4
Plaintiffs do not assert that the Court has general jurisdiction over Defendant Rafaeli, and the
Court notes that Rafaeli is a resident of New Jersey.
8
The (a)(1) prong of the District of Columbia’s long-arm statute “extends as far as the
Fifth Amendment’s Due Process Clause permits.” Flocco v. State Farm Mut. Auto. Ins. Co., 752
A.2d 147, 162 (D.C. 2000). The exercise of personal jurisdiction must “comport with ‘traditional
notions of fair play and substantial justice.’” Wiggins v. Equifax, Inc., 853 F. Supp. 500, 502
(D.D.C. 1994) (quoting Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 107
(1987)). To comply with the requirements of due process, a court can only exercise jurisdiction
over a defendant who has purposely established minimum contacts with the forum state. Id.Under the fiduciary shield doctrine, personal jurisdiction over a corporate officer may not
be asserted based on “contacts with the forum [that] are exclusively in relation to the defendant’s
corporate responsibility.” Nat’l Cmty. Reinvestment Coal v. NovaStar Fin., Inc., 631 F. Supp. 2d
1, 5 (D.D.C. 2009). However, when a corporate officer is “more than an employee” of the
corporation, the fiduciary shield doctrine does not shield actions of such an individual conducted
in that individual’s capacity as a corporate employee. See id. at 6 (holding that president of
corporation who personally developed and implemented discriminatory policies of corporation
and exerted significant influence was not protected by the fiduciary shield doctrine). A corporate
officer that exerts significant influence over a corporation’s policies and operations and is
personally involved in developing the policies at issue may be considered “more than an
employee.” See id. at 7-8. While such an individual is not shielded from jurisdiction, “as a
general rule, courts cannot exert jurisdiction over individual corporate officers or employees ‘just
because the court has jurisdiction over the corporation.’” Kopff, 425 F. Supp. 2d at 84 (quoting
Flocco, 752 A.2d at 162); see also Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 n.13
(1984) (“[J]urisdiction over an employee does not automatically follow from jurisdiction over
the corporation which employs him.”). The contacts necessary for the Court to exercise personal
9
jurisdiction must be assessed individually for each defendant. Keeton, 465 U.S. at 781 n.13
(citing Rush v. Savchuk, 444 U.S. 320, 332 (1980)).
Assuming that Rafaeli qualifies as “more than an employee” of Radiancy as the chief
executive of the company, 5 he is not shielded by the fiduciary shield doctrine. However, that
status automatically does not confer personal jurisdiction over him in the District of Columbia.
Plaintiffs must still establish that the Court has personal jurisdiction over Rafaeli based on his
own actions. See Keeton, 465 U.S. at 781 n.13 (“Each defendant’s contacts with the forum State
must be assessed individually”). Assuming that he is not shielded, Rafaeli’s actions in his
capacity as CEO of Radiancy may be considered in determining whether personal jurisdiction in
the District of Columbia is proper. But Rafaeli’s contacts with the forum state must be assessed
based on his actions—separately from the corporation’s contacts with the forum state.
Rafaeli, in his personal capacity and on his own behalf, did not transact any business
within the District of Columbia. While Plaintiffs argue that Radiancy has transacted business in
the District of Columbia by virtue of its sale of at least one no!no! Hair removal device to a
resident of the District of Columbia, 6 see Compl. ¶ 13, Plaintiffs do not suggest anywhere that
Rafaeli took any specific actions to target the District of Columbia. Even if Rafaeli “played a
central and dominant part in Radiancy’s campaign … [and] directly profited from the campaign
5
The Court notes that Rafaeli is likely “more than an employee” given his control over
Radiancy’s decisions and management style in his role as Chief Executive Officer for Radiancy.
See generally Compl.
6
Plaintiffs allege that “Defendants intentionally presented themselves in the District of Columbia
through their marketing, promotion, and sales of the product in this jurisdiction.” Compl. ¶ 12.
However, they do not allege that the one District of Columbia resident plaintiff, Jan Mouzon,
who purchased the no!no! Hair removal device actually purchased the product in the District of
Columbia or that she was a resident of the District of Columbia at the time of purchase. See id.Additionally, while Plaintiffs state that Mouzon purchased the product after viewing Defendants’
infomercial, Plaintiffs do not state that Mouzon viewed this infomercial in the District of
Columbia. See id.10
which he controlled,” Pls.’ Rafaeli Opp’n at 1, Plaintiffs have not alleged that Rafaeli himself
targeted this marketing campaign to the District of Columbia or that Rafaeli directly profited
from business conducted in the District of Columbia. Unlike in NovaStar, where the president of
a corporation personally developed and implemented discriminatory policies applied to
thousands of loan applications in the District of Columbia, Plaintiffs here have not shown that
Rafaeli targeted the District of Columbia in his role at Radiancy. Plaintiffs have not shown that
Rafaeli has the required minimum contacts with the District of Columbia, personally or in his
position as CEO of Radiancy. Accordingly, Plaintiffs have not satisfied subsection (a)(1) of the
District of Columbia’s long-arm statute, and jurisdiction is not proper under this prong of the
statute.
Similarly, Plaintiffs have not shown that jurisdiction over Rafaeli is proper under the
(a)(4) prong of the District of Columbia’s long-arm statute, which applies to a person “causing
tortious injury in the District of Columbia by an act or omission outside the District of
Columbia.” This prong requires one of three “plus factors”: that the alleged tortfeasor “‘regularly
do[ ] or solicit[ ] business’ in the District, or ‘engage[ ] in [some] other persistent course of
conduct’ in the District, or ‘derive [ ] substantial revenue from goods used or consumed, or
services rendered’ in the District.” Kopff, 425 F. Supp. 2d at 82 (citing Crane v. Carr, 814 F.2d
758, 762 (D.C. Cir. 1987) and D.C. Code § 13-423(a)(4)). Plaintiffs have not presented a prima
facie case that Rafaeli has satisfied any of these “plus factors.” Even if Plaintiffs had shown that
Radiancy has satisfied one of these factors, Rafaeli’s role as the CEO of Radiancy does not
automatically mean that he regularly solicited business or engaged in a persistent course of
conduct in the District of Columbia. Further, even if Radiancy derived substantial revenue from
the District of Columbia, which has not been shown, it would not necessarily follow that Rafaeli
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derived substantial revenue from the District of Columbia. Plaintiffs have not alleged facts that
suggest that any of the three “plus factors” are applicable to Rafaeli. Accordingly, the Court does
not have personal jurisdiction over Rafaeli pursuant to subsection (a)(4) of the District of
Columbia’s long-arm statute.
As neither subsection (a)(1) nor subsection (a)(4) of the District of Columbia’s long arm
statute confers personal jurisdiction over Rafaeli, the Court dismisses all claims against
Defendant Rafaeli.
2. Jurisdictional Discovery Is Not Warranted
In the alternative, Plaintiffs request the opportunity to conduct jurisdictional discovery in
the event that Plaintiff’s briefs are insufficient to establish personal jurisdiction in the District of
Columbia over Defendant Rafaeli. See Pls.’ Rafaeli Opp’n at 14. Defendant challenges this
request as “a fishing expedition.” See Rafaeli Reply 7-8. The Court concludes that jurisdictional
discovery is not warranted.
To be granted jurisdictional discovery a “plaintiff must have at least a good faith belief
that such discovery will enable it to show that the court has personal jurisdiction over the
defendant.” Caribbean Broad. Sys. Ltd., 148 F.3d at 1090. “Mere conjecture or speculation” is
not enough to justify jurisdictional discovery. FC Investment Group LC, 529 F.3d at 1094.
Plaintiffs fail to identify information that could be the basis for jurisdiction over Rafaeli.
Plaintiffs state that Rafaeli “directed and controlled Radiancy’s policies and deceptive marketing
campaign” and that this campaign led to the purchase of the no!no! Hair removal device in the
District of Columbia. 7 Id. Additionally, Plaintiffs assert that Radiancy communicated, through
7
The Court notes, once again, that Plaintiffs never actually allege that any purchase occurred in
the District of Columbia. They only allege that Plaintiff Jan Mouzon is a resident of the District
12
District of Columbia attorneys, with the FDA seeking an exclusion for the product from certain
FDA testing requirements. Plaintiffs argue that “[i]t is likely that further inquiry into Rafaeli’s
contacts with the District will lead to additional information relating to his contacts here, such as
details on meetings with his D.C.-based attorneys regarding the scope of representations that
Radiancy could make… under FDA regulations. Discovery will reveal the exact nature of those
contacts.” Id.The Court notes that any contacts that Rafaeli may have had with attorneys in the District
of Columbia in connection with the FDA may fall under the “government contacts” exception to
personal jurisdiction. Under the government contacts exception, “the entry into the District of
Columbia by nonresidents for the purpose of contacting federal agencies is not a basis for
assertion of in personam jurisdiction.” Envtl. Research Int’l, Inc. v. Lockwood Greene Engineers,
Inc., 355 A.2d 808, 813 (D.C. 1976). If a nonresident defendant’s “sole contact with the District
consists of dealing with a federal instrumentality,” the defendant is deemed not to be transacting
business such that he falls under the jurisdiction of the District of Columbia long-arm statute. See
Rose v. Silver, 394 A.2d 1368, 1372-73 (D.C. 1978) (quoting Envtl. Research Int’l, 355 A.2d at
813). Rafaeli’s alleged meetings with District of Columbia attorneys related to the business of
the company before the FDA may therefore be within the scope of the government contacts
exception and, accordingly, would be excluded from personal jurisdiction analysis.
The Court need not resolve the applicability of the government contacts exception to
these facts because, even if Rafaeli attended meetings with attorneys in the District of Columbia
and those meetings are not excluded from the jurisdictional inquiry due to the government
of Columbia, with no reference to her being a District of Columbia resident at the time of
purchase. See Compl. ¶ 13.
13
contacts exception, such meetings would not provide the necessary contacts to show that Rafaeli
specifically targeted the marketing campaign for the no!no! Hair removal device towards the
District of Columbia. These alleged contacts, as described by Plaintiffs, would not show that
Rafaeli entered the District of Columbia to transact business in a way that is directly related to
targeting the District of Columbia market or Plaintiffs’ resultant injuries. Plaintiffs do not suggest
any nexus between communications with D.C. lawyers regarding FDA testing requirements and
any marketing or sales strategy by Radiancy that specifically targets the District of Columbia,
and the Court does not find any such connection. Accordingly, jurisdictional discovery regarding
the meetings would not provide information supporting the necessary contacts for personal
jurisdiction over Rafaeli. Without presenting any more details about information relevant to the
jurisdictional inquiry that Plaintiffs seek to obtain, Plaintiff’s request for discovery is purely
speculative. Plaintiffs do not present “a good faith belief that such discovery will enable [them]
to show that the court has personal jurisdiction over the defendant,” Caribbean, 148 F.3d at
1090. They do not explain how such discovery would yield information that would establish
jurisdiction over Rafaeli regarding the alleged deceptive marketing campaign for the no!no! Hair
removal device. Accordingly, jurisdictional discovery is not warranted, and Plaintiffs’ request for
such discovery is denied.
B. Complaint Does Not State a Claim against Radiancy
Defendant Radiancy moves to dismiss the Complaint on the basis that it fails to state a
claim. The Court analyzes, in turn, each of the claims brought by Plaintiffs and Defendants’
arguments in response.
14
1. New York General Business Law §§ 349-350
Plaintiffs claim that the “acts engaged in by the Defendants were deceptive, misleading,
unfair, and/or show a pattern of untruthful statements, false representations, concealment, intent
to mislead that were all part of a scheme to deceive customers and the public,” in violation of
New York General Business Law §§ 349(a) and 350-a(1). Defendants argue that this statute does
not apply here because it does not apply to out-of-state transactions. The Court agrees with
Defendants that these statutory provisions are not applicable to the transactions at issue in this
case. 8
Pursuant to section 349 of the New York General Business Law, “deceptive acts or
practices in the conduct of any business, trade or commerce or in the furnishing of any service in
this state are hereby declared unlawful.” N.Y. Gen. Bus. Law § 349(a) (emphasis added). The
statute creates a private right of action for “any person who has been injured by reason of any
violation of this section.” Id. § 349(h). “A plaintiff under section 349 must prove three elements:
first, that the challenged act or practice was consumer-oriented; second, that it was misleading in
a material way; and third, that the plaintiff suffered injury as a result of the deceptive act[.]”
Stutman v. Chem. Bank, 731 N.E.2d 608, 611 (N.Y. 2000). Section 350 prohibits “[f]alse
advertising in the conduct of any business, trade or commerce or in the furnishing of any service
in this state … .” N.Y. Gen. Bus. Law § 350 (emphasis added). “A claim of false advertising
under Section 350 must meet all of the same elements as a claim under Section 349, and the
8
Because the Court determines that the claim pursuant to New York General Business Law
§§ 349-350 do not apply to the transactions at issue in this action—and therefore dismisses that
claim—the Court need not consider here Defendants’ general choice of law argument that New
York law should not be applied to Plaintiffs’ claim.
15
plaintiff must further demonstrate proof of actual reliance.” Merck Eprova AG v. Brookstone
Pharm., LLC, 920 F. Supp. 2d 404, 425 (S.D.N.Y. 2013).
In Goshen v. Mutual Life Insurance Company, the New York Court of Appeals interpreted
the limiting phrase “in this state” in sections 349(a) and 350 to mean “that the transaction in
which the consumer is deceived must occur in New York.” 774 N.E.2d 1190, 1195 (N.Y. 2002).
See also Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 122 (2d Cir. 2013). Subsequently, in Cruz
v. FxDirectDealer, LLC, the Second Circuit Court of Appeals “recognized that a split of authority
has developed subsequent to Goshen about the appropriate territorial test to employ under
sections 349 and 350.” 720 F.3d at 122. The Second Circuit identified “a ‘transaction-based’ test
on the one hand, or, on the other hand, a test premised on where the victim is deceived,
regardless of where the transaction occurs.” Id. Ultimately, the Second Circuit concluded that the
“appropriate test in this case is to focus on the location of the transaction, and in particular the
strength of New York's connection to the allegedly deceptive transaction.” Id. The Court need not
dwell on whether the Second Circuit correctly interpreted New York state law because both
interpretations yield the same result in this case: Plaintiffs have identified no plaintiffs deceived
in New York state and have identified no transactions that occurred in New York.
Plaintiffs provide remarkably few details about the transactions at stake. Plaintiffs allege
that each plaintiff saw an infomercial regarding the no!no! Hair removal device and subsequently
purchased the product. See Compl. ¶¶ 13-25. Plaintiffs also allege that each plaintiff resides in
one of the following jurisdictions: the District of Columbia, California, Florida, Illinois,
Maryland, Virginia, Pennsylvania, Colorado, West Virginia, and Tennessee. See id. No plaintiff
resides in New York. See id. Plaintiffs do not allege where each plaintiff saw the respective
infomercial or where each plaintiff purchased the product. See id. Plaintiffs include numerous
16
allegations about a nationwide deceptive marketing scheme, but they do not allege that any
plaintiff was exposed to that marketing scheme other than viewing a single infomercial. See, e.g.,
id. ¶¶ 75-77. The Complaint nowhere suggests that any plaintiff purchased the product in New
York, was exposed to any part of a marketing campaign in New York, or used the product in New
York. 9
In arguing that underlying events have sufficient connections to New York for the statute
to be applicable, Plaintiffs rely on their claim that “Radiancy’s deceptive marketing campaign …
emanated from Radiancy’s New York headquarters.” Pls.’ Radiancy Opp’n at 16. However, the
New York Court of Appeals has explicitly concluded that “the origin of any advertising or
promotional conduct is irrelevant if the deception itself—that is, the advertisement or
promotional package—did not result in a transaction in which the consumer was harmed.”
Goshen, 774 N.E.2d at 1196. In applying this understanding of the statute in Goshen, the New
York Court of Appeals concluded that, for a plaintiff who received allegedly misleading
information in Florida and purchased a product in Florida, the deception occurred in Florida—
notwithstanding the alleged development of a plan in New York to disseminate deceptive
information. See id. Therefore, the New York Court of Appeals concluded that the plaintiff in that
case could not bring an action under the statute. See id. The facts of the case before the Court are
similar: notwithstanding Plaintiffs’ allegations that Radiancy developed the deceptive marketing
9
In Plaintiffs’ Opposition to Defendant Rafaeli’s Motion to Dismiss, Plaintiffs argue that the
Complaint alleges that “Defendants aired an infomercial in the District of Columbia market,
which was viewed by Plaintiff Jan Mouzon, a District of Columbia resident.” Pls.’ Rafaeli Opp’n
at 11 (citing Compl. ¶ 13). However, the Complaint, in fact, only alleges that Mouzon, a D.C.
resident, saw an infomercial and subsequently purchased the product, without specifying where
she did either of those activities. See Compl. ¶ 13. Regardless of whether it is a fair inference
from the Complaint that each plaintiff viewed the infomercial in question and purchased the
product in the state of their current residence, nothing in the Complaint—or in Plaintiffs’
interpretation thereof—suggests that any of those activities occurred in New York.
17
scheme in New York, there are no allegations that suggest that Plaintiffs’ exposure to the scheme
or purchase of the product occurred in New York. Therefore, like in Goshen, the deception here
occurred outside of New York, and the Complaint fails to state a claim pursuant to sections 349
and 350.
Plaintiffs rely on the Second Circuit Court of Appeal’s opinion in Cruz to argue that the
emanation of Radiancy’s deceptive marketing strategy from New York, Radiancy’s principal
place of business, is enough for the transactions to be covered by the statutory provision. See
Pls.’ Radiancy Opp’n at 15-16. However, Cruz does not stand for that proposition. In Cruz, the
Second Circuit Court of Appeals noted that that case “involved a series of allegedly deceptive
transactions that occurred in New York and implicate the interests of New York.” 124 F.3d at
123. In a case involving a complex series of financial transactions, that court outlined “various
alleged ties between the customer transactions and New York,” and concluded that “some part of
the underlying transaction … occur[red] in New York State,” which established a basis for the
claim. Id. at 124 (alterations in original and citation omitted). The complex series of financial
transactions in Cruz is a far cry from this case. In this case, there is an alleged deceptive
marketing campaign launched from New York, but customers were exposed to deception outside
of New York and acted upon that exposure outside of the state. In any event, regardless of the
Second Circuit’s discussion of New York law in Cruz, it is the New York Court of Appeals’
holding in Goshen – that the “transaction in which the consumer is deceived must occur in New
York” – that is binding on this Court. 774 N.E.2d at 1195. Here, the Complaint does not identify
any deceptive transaction that occurred in New York.
The reasoning of the New York Court of Appeals interpreting section 349 further supports
this conclusion. “To apply the statute to out-of-state transactions in the case before us would lead
18
to an unwarranted expansive reading of the statute, contrary to legislative intent, and potentially
leading to the nationwide, if not global application of General Business Law § 349.” Goshen,
774 N.E.2d at 1196. Furthermore, the New York Court of Appeals stated that an expansive
interpretation of the territorial reach of the statute—like the expansive interpretation of the out-
of-state Plaintiffs here—“would tread on the ability of other states to regulate their own markets
and enforce their own consumer protection laws.” Id. So, too, here, the application of this New
York statute to claims by residents of other states based on their purchase of a device sold by a
New York company—when there is no indication that the sales occurred in New York or that
those residents saw advertising of the product while in New York—would tread on the ability of
other states to regulate their own markets.
In conclusion, the Complaint fails to state a claim pursuant to New York General
Business Law sections 349 and 350 because the Complaint fails to identify any transactions that
occurred in New York in which Plaintiffs—who are not New York residents—were deceived.
Because “‘the allegation of other facts consistent with the challenged pleading could not possibly
cure the deficiency,’” dismissal of this claim with prejudice is warranted. Rudder v. Williams,
666 F.3d 790, 794 (D.C. Cir. 2012) (quoting Belizan v. Hershon, 434 F.3d 579, 583 (D.C. Cir.
2006)). Accordingly, Count 1 is dismissed with prejudice.
2. State-Specific Consumer Protection Claims
As an alternative to the application of New York General Business Law §§ 349 and 350
to all plaintiffs, Plaintiffs assert claims pursuant to the consumer protection laws of California,
the District of Columbia, Florida, Illinois, Maryland, Virginia, West Virginia, Colorado, and
19
Pennsylvania on their own behalf and on behalf of putative subclasses of the respective states. 10
Each of these claims is based on alleged deceptive advertising with regarding the no!no! Hair
removal devices, including affirmative misrepresentations and omissions with respect to the
device. See Compl. ¶¶ 199, 213, 214, 224, 225, 231 (the three California claims); id. ¶ 231 (D.C.
claim); id. ¶¶ 237-238 (Florida claim); id. ¶¶ 246, 247, 250 (Illinois claim); id. ¶¶ 254-55
(Maryland claim); id. ¶¶ 260, 263 (Virginia claim); id. ¶¶ 269, 271 (Colorado claim); id. ¶¶ 269,
271 (West Virginia claim); id. ¶¶ 283, 286 (Pennsylvania claim). With respect to each of these
claims, Defendants argue that Federal Rule of Civil Procedure 9(b) requires pleading each claim
with particularity because each involves allegations of fraud. See Fed. R. Civ. P. 9(b) (“In
alleging fraud or mistake, a party must state with particularity the circumstances constituting
fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be
alleged generally.”). Defendants then argue that the Plaintiffs have not pleaded the fraud
allegations with particularity and that each of these claims should be dismissed. The Court first
discusses the applicability of Rule 9(b), concluding that it applies to each claim at issue here. The
10
Plaintiffs allege violations of the following statutes: the California Legal Remedies Act, Cal.
Civ. Code § 1750 et seq. (Count 2); the California Unfair Competition Law, Cal. Bus. Prof. Code
§ 17200 et seq. (Count 3), the California False Advertising Law, Cal. Bus. & Prof. Code § 17500et seq. (Count 4); the District of Columbia Consumer Protection Procedures Act, D.C. Code
§ 28-3901 et seq. (Count 5); the Florida Deceptive and Unfair Trade Practices Act, F.S.A.T.
XXXIII, Ch. 501, Pt. II, et seq. (Count 6); the Illinois Consumer Fraud & Deceptive Business
Practices Act, 815 ILCS 505/1, et seq. (Count 7); the Maryland Consumer Protection Act, Md.
COML, Sec. 13-101, et seq. (Count 8); the Virginia Consumer Protection Act, Va. Code Ann.
59.1-196, et seq. (Count 9); the Colorado Consumer Protection Act, Col. Rev. Stat. 6-1-105(1), et
seq. (Count 10); the West Virginia Consumer Credit and Protection Act, § 46A-6-101, et seq.
(Count 11); and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, § 201-1,
et seq. (Count 12).
In their Opposition, Plaintiffs reference a claim pursuant to Tennessee law on behalf of a
Tennessee subclass. See Pls.’ Radiancy Opp’n at 3. However, while the Complaint references a
Tennessee subclass, see Compl. ¶ 176(g), it does not include any claim pursuant to Tennessee
law.
20
Court then concludes that Plaintiffs have failed to plead these claims with particularity. Because
the Court determines that the Complaint fails to satisfy the requirement of pleading fraud
allegations with particularity, the Court need not consider Defendants’ argument, in the
alternative, that even if Rule 9(b) does not apply, the Complaint fails to state a claim with respect
to a subset of the state claims 11 because Plaintiffs failed to plead reliance adequately. 12 The Court
also considers Defendants’ argument that Plaintiffs failed to comply with the notice requirements
of the West Virginia statute and concludes Plaintiffs have failed to comply with this requirement.
11
Specifically, the California, Florida, Illinois, Maryland, Virginia, West Virginia and
Pennsylvania claims.
12
The Court does not reach Defendants’ reliance argument but notes that standard for causation
or reliance varies among the state statutory claims presented. Specifically, with respect to the
Florida and Illinois claim, a plaintiff is required to show causation but not reliance. See Pop’s
Pancakes, Inc. v. NuCO2, Inc., 251 F.R.D. 677, 685 (S.D. Fla. 2008) (“Under [Florida Deceptive
and Unfair Trade Practices Act], a litigant must demonstrate three elements: (1) a deceptive act
or unfair practice; (2) causation; and (3) actual damages.”); De Bouse v. Bayer, 922 N.E.2d 309,
313 (Ill. 2009) (“[Illinois] Consumer Fraud Act claim requires (1) a deceptive act or practice by
the defendant, (2) the defendant’s intent that the plaintiff rely on the deception, (3) the
occurrence of the deception in a course of conduct involving trade or commerce, and (4) actual
damage to the plaintiff that is (5) a result of the deception.”). With respect to the Maryland claim,
by contrast, reliance is necessary when a plaintiff is seeking restitution or damages. See Philip
Morris Inc. v. Angeletti, 752 A.2d 200, 235 (Md. 2000). With respect to the West Virginia claim,
reliance is necessary for claims based on affirmative misrepresentations and a showing of
proximate cause (or, alternatively, but-for causation) is necessary for claims based on omission.
See White v. Wyeth, 705 S.E.2d 828, 837 (W. Va. 2010). Finally, reliance is a necessary element
of the California, Virginia, Pennsylvania statutory claims. See In re Tobacco II Cases, 207 P.3d
20, 39 (Cal. 2009) (requiring a showing that misrepresentations were the “immediate cause” but
not necessary the “sole or even the decisive cause of the injury-producing conduct”); Kwikset
Corp. v. Superior Court, 246 P.3d 877, 888 (Cal. 2011) (applying analysis of In re Tobacco II
Cases to California False Advertising Law); True v. Am. Honda Motor Co., 520 F. Supp. 2d
1175, 1182-83 (C.D. Cal. 2007) (for California Legal Remedies Act, plaintiff can satisfy reliance
element by alleging that “a false or deceptive advertisement ‘induced the plaintiff to alter his
position to his detriment’”); Cooper v. GGGR Investments, LLC, 334 B.R. 179, 189 (E.D. Va.
2005) (Virginia); Toy v. Metro. Life Ins. Co., 928 A.2d 186, 203 (Pa. 2007) (citing Weinberg v.
Sun Co., Inc., 777 A.2d 442 (Pa. 2001) (Pennsylvania). Defendants do not argue that reliance is
necessary for the District of Columbia and Colorado claims.
21
a. Rule 9(b) is Applicable to Each State-Specific Claim
“[W]hile a federal court will examine state law to determine whether the elements of
fraud have been pled sufficiently to state a cause of action, the Rule 9(b) requirement that the
circumstances of the fraud must be stated with particularity is a federally imposed rule.” Vess v.
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003) (quoting Hayduk v. Lanna, 775 F.2d
441, 443 (1st Cir. 1985)) (emphasis in original). Other federal courts have determined that claims
pursuant to the consumer protection laws of California, the District of Columbia, Illinois,
Maryland, Virginia, Colorado, West Virginia, and Pennsylvania require pleading with
particularity when they are based on fraud. See Kearns v. Ford Motor Co., 567 F.3d 1120, 1126
(9th Cir. 2009) (even though fraud is not a necessary element California Legal Remedies Act and
the California Unfair Competition Law, claims involving nondisclosure or affirmative
misrepresentation are claims of fraud and require pleading with particularity); In re Ferrero
Litig., 794 F. Supp. 2d 1107, 1114 (S.D. Cal. 2011) (Rule 9(b) applicable to claims of violations
of the California False Advertising Law grounded in fraud); Jefferson v. Collins, 905 F. Supp. 2d
269, 289 (D.D.C. 2012) (fraud-based claims under the D.C. Consumer Protections Procedures
Act require pleading with particularity); Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust
v. Walgreen Co., 631 F.3d 436, 441 (7th Cir. 2011) (allegations of fraud under the Illinois
Consumer Fraud Act trigger heightened pleading standard of Rule 9(b)); Spaulding v. Wells
Fargo Bank, N.A., 714 F.3d 769, 781 (4th Cir. 2013) (Maryland Consumer Protection Act claims
sounding in fraud require pleading with particularity); Nahigian v. Juno Loudoun, LLC, 684
F. Supp. 2d 731, 741 (E.D. Va. 2010) (Rule 9(b)’s particularity requirements apply to Virginia
Consumer Protection Act sounding in Fraud); HealthONE of Denver, Inc. v. UnitedHealth Grp.
Inc., 805 F. Supp. 2d 1115, 1120-21 (D. Colo. 2011) (pleading with particularity pursuant to Rule
9(b) is required for deceptive or unfair trade practice claim under the Colorado Consumer
22
Protection Act); Stanley v. Huntington Nat. Bank, No. 1:11CV54, 2012 WL 254135, at *7
(N.D.W. Va. Jan. 27, 2012) aff’d, 492 F. App’x 456 (4th Cir. 2012) (pleading with particularity
pursuant to Rule 9(b) is required for the West Virginia Consumer Protection Act claim); Kee v.
Zimmer, Inc., 871 F. Supp. 2d 405, 412 (E.D. Pa. 2012) (claims pursuant to the Pennsylvania
Unfair Trade Practices and Consumer Protection Law require pleading with particularity). Each
of the claims in this action pursuant to the consumer protection acts of these states is based on
fraud and includes allegations of affirmative misrepresentation. See, e.g., Compl. ¶¶ 199, 213,
224, 225 (affirmative misrepresentations basis of California claims). Therefore, Rule 9(b) applies
to each of these claims, and pleading with particularity is required.
While federal courts in Florida are split about the applicability of Rule 9(b) to claims
pursuant to Florida Deceptive and Unfair Trade Practices Act, the Court concludes that the claim
pursuant to that statute in this case requires pleading with particularity. Some courts have found
the particularity requirement of Rule 9(b) applicable to this statute. See, e.g., Begualg Inv. Mgmt.
Inc. v. Four Seasons Hotel Ltd., No. 10-22153-CIV, 2011 WL 4434891, at *5 (S.D. Fla. Sept. 23,
2011); Llado-Carreno v. Guidant Corp., No. 09-20971-CIV, 2011 WL 705403, at *5 (S.D. Fla.
Feb. 22, 2011); Stires v. Carnival Corp., 243 F. Supp. 2d 1313, 1322 (M.D. Fla. 2002). Others
have found the particularity requirement inapplicable. See, e.g., Galstaldi v. Sunvest Cmties.
USA, LLC, 637 F. Supp. 2d 1045, 1058 (S.D. Fla. 2009); Toback v. GNC Holdings, Inc., No. 13-
80526-CIV, 2013 WL 5206103, at *2 (S.D. Fla. Sept. 13, 2013) (“Rule 9(b)’s requirements are
implicated by allegations of fraud, but because [the statute] was enacted to provide remedies for
conduct outside the reach of traditional common law torts like fraud, “the plaintiff need not
prove the elements of fraud to sustain an action under the statute.””) (citation omitted). In Llado-
Carreno, a district judge of the Southern District of Florida reasoned that, even if Rule 9(b) is not
23
applicable to all claims under the Florida statute, it is applicable to claims under the statute that
“sound in fraud.” 2011 WL 705403, at *5. The Court is persuaded by this reasoning. In this case,
as in Llado-Carreno, the Florida claim is based on the allegations that Defendants orchestrated a
fraudulent advertising scheme that caused Plaintiffs to purchase the product. See Compl. ¶¶ 237-
38. In other words, the Florida law claim here sounds in fraud, just like the claim in Llado-
Carreno, and the requirements of Rule 9(b) are applicable with respect to the Florida claim in
this action, just as they apply to each of the other state statutory claims discussed in this section.
b. The Complaint Does Not Satisfy the Requirements of Rule 9(b) with
Respect to the State-Specific Consumer Protection Claims
“[T]o satisfy Rule 9(b), ‘the pleader [must] ... state the time, place and content of the
false misrepresentations, the fact misrepresented ... [,] what was retained or given up as a
consequence of the fraud,’ and ‘identify individuals allegedly involved in the fraud.’” Jefferson,
905 F. Supp. 2d at 289 (quoting United States ex rel. Williams v. Martin-Baker Aircraft Co., 389
F.3d 1251, 1256 (D.C. Cir. 2004)). “And when a fraud claim is based on omissions rather than
affirmative misstatements, Rule 9(b) requires the plaintiff to plead, among other things, who
omitted the facts, what facts were omitted, why the omission was misleading, and when the
disclosure should have been made.” Id. at 289-90.
With respect to each individual plaintiff, the Complaint contains a single allegation. Each
of these allegations contains identical language—with the exception of the name of the plaintiff,
the state of the plaintiff’s residence, and the date (or approximate date) of the purchase of the
device. See Compl. ¶¶ 13-25. For example, with respect to the single California plaintiff,
Plaintiffs allege as follows:
Plaintiff Sarah Co is a resident of California. Plaintiff Coe purchased the Product
on or about May 31, 2012. Defendants’ infomercial that Plaintiff viewed prior to
purchase prominently displayed the promise of long term or permanent hair
24
removal by suppressing or slowing the regrowth of hair, among other
misrepresentations. Plaintiff reasonably relied on Defendants’ representations in
purchasing the no!no! product. Had Plaintiff known that the Product was unable
to prevent hair regrowth and could not live up to its other representations, Plaintiff
would not have bought the Product. As a result of Radiancy’s and Rafaeli’s
conduct as alleged herein, Plaintiff has been injured.
Id. ¶ 14. Plaintiffs do not allege any specific facts regarding Plaintiff Coe’s exposure to the
alleged fraudulent advertising campaign. They do not state the circumstances under which she
viewed the infomercial, whether she was exposed to any advertising other than a single
infomercial, or detail the role that the infomercial played in her decision to purchase the no!no!
Hair removal device. Similarly, none of the allegations regarding other individual plaintiffs
provide any additional specific facts about their exposure to this advertising campaign. Each
allegation pertaining to an individual plaintiff is limited to the exact same conclusory language as
the allegation regarding Plaintiff Coe. See id. ¶¶ 13-25.
Although the Complaint includes numerous allegations regarding the advertising
campaign and the alleged fraud underlying it, it does not include any other factual allegations
regarding Plaintiffs’ exposure to the campaign and the impact that this exposure had on their
purchasing decisions. Because the missing information pertains to Plaintiffs’ own experiences,
that information would be within Plaintiffs’ control. In other words, this is not a situation where
Plaintiffs could not plead with particularity because the information is within Defendants’
control and would require discovery to uncover. Although the Court might not expect each
plaintiff to recall the exact date and time when they watched a particular infomercial, far more
than the conclusory allegations provided in the Complaint is needed in order to properly plead a
fraud-based claim. Notably, Plaintiffs have not alleged the basic circumstances under which they
were exposed to the infomercial and purchased the device, which the Court would expect the
individual Plaintiffs to recall. These missing basic facts include whether each individual
25
Plaintiffs watched the infomercial and purchased the device in their state of residence—under
whose law each brings a state-specific claim. Indeed, because Plaintiffs do not specifically allege
being exposed to any components of the alleged advertising campaign other than one
infomercial—while they allege a large deceptive advertising scheme by Defendants—the
circumstances of the viewing of the single infomercial by each individual plaintiff are
particularly important. Cf. In re Tobacco II Cases, 207 P.3d 20, 39 (Cal. 2009) (when plaintiffs
were exposed to “long-term advertising campaign, the plaintiff is not required to plead with an
unrealistic degree of specificity that the plaintiff relied on particular advertisements or
statements.”). As a result, the absence of detail about Plaintiffs experiences leads to the
conclusion that Plaintiffs have not pleaded these claims with the requisite particularity. For these
reasons, the Court concludes that Plaintiffs have failed to plead Counts 2 through 12 with
particularity and the Court dismisses each of these claims. 13
13
In addition, the allegations in the Complaint associated with specific state-law claims—as
opposed to those global allegations incorporated in each claim—contain no references to the
experiences of the individual plaintiffs. See Compl. ¶¶ 193-286. While there are some minor
differences among the allegations specific to individual state claims, none of the differences are
material for the purposes of the motions considered today. Indeed, these differences appear to
result from the presentations of allegations that echo the elements of the respective claims. See,
e.g., id. ¶ 239 (with respect to Florida claim, “[t]o date, Plaintiffs have not received the benefit of
their bargain in that the Product has not achieved its stated promise of significantly reducing hair
regrowth and functioning in the same way as ‘laser’ hair removal); id. ¶ 248 (“The
misrepresentation and/or deception alleged herein occurred in connection with Defendants’
conduct of trade and commerce in Illinois.”). Therefore, no additional analysis of the allegations
specific to each individual claim is necessary in order for the Court to conclude that each of these
state-specific claims must be dismissed.
26
c. Plaintiffs Did Not Comply with the Notice requirement of the West
Virginia Consumer Credit and Protection Act (Count 11)
The Court, above, concluded that Plaintiffs’ claim pursuant to the West Virginia
Consumer Credit and Protection Act, 14 § 46A-6-101, et seq., failed because Plaintiffs did not
plead this claim with particularity pursuant to Rule 9(b). In addition, Defendants argue that
Plaintiffs failed to comply with the notice requirements of the West Virginia statute. The Court
addresses that argument here and agrees that Plaintiffs have failed to comply with the statute’s
notice requirement.
In order to pursue a claim pursuant to the West Virginia Consumer Protection Act, a
plaintiff must provide notice to the would-be defendants prior to filing suit. See Rawls v.
Associated Materials, LLC, No. 1:10-CV-01272, 2012 WL 3852875, at *6 (S.D. W. Va. Sept. 5,
2012); Stanley v. Huntington Nat. Bank, 492 F. App’x 456, 457 (4th Cir. 2012) (unpublished).
While Plaintiffs sent a notice to Defendants, the content of that notice does not meet the statutory
requirements. 15 The notice states that Plaintiffs intend to sue Defendants “for violation of state
consumer protection statutes, the Magnuson-Moss Warranty Act, and breaches of express and
implied warranties.” Pls.’ Radiancy Opp’n, Ex. C at 5. The notice outlines the substantive claims
in this action and explicitly states that those claims “violate the CLRA [California Legal
Remedies Act] and the consumer laws of all the states in which you have sold the device.” Id. at
6. The notice includes several additional references to the California Legal Remedies Act—one
14
The Court notes that, in the Complaint, Plaintiffs refer to the act as the West Virginia
Consumer Protect Act. But the actual name of the statute is the West Virginia Consumer Credit &
Protection Act, which the parties use in the subsequent briefing. See Rawls v. Associated
Materials, LLC, No. 1:10-CV-01272, 2012 WL 3852875, at *6 (S.D. W. Va. Sept. 5, 2012)
(citing W.Va. Code § 46A6-106(b)).
15
The Court need not address Defendants’ argument that the notice was not sent to the proper
address because the Court concludes that the content of the notice was deficient.
27
of the other consumer protection statutes at issue in this action—but includes no explicit
references to any other specific state statutes. However, for a notice to satisfy the requirements of
the West Virginia Consumer Credit and Protection Act, “the required notice must specifically
assert a violation of the [West Virginia Consumer Credit and Protection Act].” See Rawls, 2012
WL 3852875, at *6 (citing Stanley, 2012 WL 254135, at *7). In Rawls, the court found a notice
insufficient when “[o]nly in the last sentence of the letter do Plaintiffs mention suing under the
[act].” See id. Here, while the notice mentions, generally, violations of state consumer protection
statutes, there is no explicit mention of the West Virginia statute at any point in the notice. The
general reference to consumer protection statutes is not enough. In particular, it is notable that
the notice includes several explicit references to the California Legal Remedies Act, but no
explicit references to either the State of West Virginia or to the West Virginia Consumer Credit
and Protection Act. Accordingly, the Court concludes that this notice is insufficient to satisfy the
statutory requirements.
In a footnote, Plaintiffs ask that, if the Court determines that the notice is insufficient,
they be afforded an opportunity to send a corrected letter. If the Court were to allow this request
now, it would contradict the purpose of the statutory notice requirement: to provide Defendants
notice of Plaintiffs’ intent to file a suit pursuant to the West Virginia statute before the suit was
filed. Accordingly, that request is denied.
Both because the Complaint fails to plead this claim with particularity as required by
Rule 9(b) and because Plaintiffs failed to comply with the pre-suit notification requirements of
the West Virginia statute, the Court dismisses Count 11.
* * *
28
In sum, the Court dismisses without prejudice each of the state-specific consumer
protection claims brought on behalf of Plaintiffs and putative state-specific subclasses. Because
the Court cannot conclude, with respect to these claims, that “‘the allegation of other facts
consistent with the challenged pleading could not possibly cure the deficiency,’” dismissal
without prejudice is warranted. Rudder, 666 F.3d at 794. See Firestone v. Firestone, 76 F.3d
1205, 1209 (D.C. Cir. 1996) (“Failure to plead fraud with particularity … does not support a
dismissal with prejudice.”).
3. Warranty Claims
Plaintiffs also bring express and implied warranty-based claims. The Court first discusses
the law to apply to these claims. Plaintiffs argue that New York law applies to each of the
warranty claims. Compl. ¶ 171. In the alternative, they argue that the law of each plaintiff’s
home state should be applied to the claims of the respective individual plaintiffs. Id. ¶ 172.
Defendants first argue that, if New York law is applied to the several warranty claims, as
Plaintiffs propose, the Complaint fails to state a claim with respect to each of the warranty
claims. They also argue that New York law should not be applied to these claims and that,
applying the law of Plaintiffs’ respective home states to each claim, each claim would fail as
well. In turn, Plaintiffs respond that the Complaint states a claim with respect to the several
warranty claims under New York law; they also argue that, if the Court rejects their argument
that New York law governs these claims and instead applies the law of the states in which
Plaintiffs, respectively, reside, the claims survive as well. See Pls.’ Radiancy Opp’n at 22-30.
Notably, neither party maintains that the choice of law affects the outcome: Plaintiffs argue that
the claims survive regardless of the law applied, and Defendants argue that the claims fail
regardless of the law applied. In addition, Plaintiffs argue that, in a putative class action, the
29
choice of law analysis should be postponed until after the conclusion of discovery. Accordingly,
with respect to the motions to dismiss currently pending before the Court, the Court applies New
York law in evaluating the warranty claims as Plaintiffs propose. The Court concludes, below,
that the Complaint fails to state a claim with respect to any of the warranty claims and dismisses
those claims. Having applied the body of law that Plaintiffs argue is applicable to these claims,
the Court declines to evaluate whether the result would differ if the Court applied the law of the
ten other states in which Plaintiffs live, as Plaintiffs suggest in the alternative.
a. Breach of Express Warranty (Count 13)
“Any affirmation of fact or promise made by the seller to the buyer which relates to the
goods and becomes part of the basis of the bargain creates an express warranty that the goods
shall conform to the affirmation or promise.” Goldemberg v. Johnson & Johnson Consumer
Companies, Inc., 8 F. Supp. 3d 467, 482 (S.D.N.Y. 2014). “To state a claim for breach of express
warranty under New York law, a plaintiff must allege (1) the existence of a material statement
amounting to a warranty, (2) the buyer’s reliance on this warranty as a basis for the contract with
the immediate seller, (3) breach of the warranty, and (4) injury to the buyer caused by the
breach.” Id. (citations omitted). “The critical question is not whether the buyer believed in the
truth of the warranted information … but ‘whether [it] believed [it] was purchasing the [seller’s]
promise [as to its truth].” CBS Inc. v. Ziff-Davis Pub. Co., 553 N.E.2d 997, 1000-01 (N.Y. 1990)
(citation omitted and alterations in original).
Defendants argue that Plaintiffs have failed to allege the existence of an applicable
warranty or to allege reliance on that warranty. Plaintiffs respond that they have adequately
alleged the existence of affirmations or promises about the no!no! Hair removal device that
constitute express warranties and that they have adequately alleged reliance on these warranties.
30
The Court agrees with Defendants that Plaintiffs have not adequately alleged a claim for a breach
of an express warranty.
In support of their argument, Plaintiffs identify a series of allegations in the complaint
that contain representations about the product, which they allege are false. See Pls.’ Radiancy
Opp’n at 29 (citing Compl. ¶¶ 84, 86, 90-91, 99-100, 112-113, 116-117). However, none of those
allegations even so much as suggest that Plaintiffs were exposed to those particular
representations or to the advertising containing those representations. Because Plaintiffs never
allege that they actually were exposed to the specific representations that they identify as the
basis for this claim, these representations cannot serve as a basis for the bargain in which
Plaintiffs entered when they purchased the product. Furthermore, Plaintiffs argue that they have
adequately alleged reliance, relying on the allegation that the individual plaintiffs “would not
have bought the product” if they knew that the product “was unable to prevent hair regrowth and
could not live up to its other representations.” Id. (citing Compl. ¶¶ 13-25). However, because
Plaintiffs did not allege the circumstances under which they were exposed to the specific
representations they identified—or indeed whether they were exposed to them at all—those
representations cannot be the basis for a claim of a breach of express warranty. Accordingly the
Court dismisses the claim for a breach of an express warranty without prejudice.
b. Breach of Implied Warranty of Merchantability (Count 14, part 1) 16
“The UCC’s concept of a ‘defective’ product requires an inquiry only into whether the
product in question was ‘fit for the ordinary purposes for which such goods are used.’ The latter
16
Plaintiffs present a single claim for breach of the implied warranty of merchantability and the
implied warranty of fitness for a particular purpose in Count 14. However, because these are
distinct legal claims, the Court addresses each implied warranty claim separately. The Court
denominates them Count 14, part 1, and Count 14, part 2, for the sake of clarity.
31
inquiry focuses on the expectations for the performance of the product when used in the
customary, usual and reasonably foreseeable manners.” Denny v. Ford Motor Co., 662 N.E.2d
730, 736 (N.Y. 1995). “A warranty of fitness for ordinary purposes ‘does not mean that the
product will fulfill [a] buyer’s every expectation.’ Rather, it has been observed, such a warranty
‘provides for a minimal level of quality.’” Id. at 736 n.4 (citations omitted). Given these
principles, “[u]nder New York law, ‘[a] breach of implied warranty claim requires proof of the
following three elements: (1) that the product was defectively designed or manufactured; (2) that
the defect existed when the manufacturer delivered it to the purchaser or user; and (3) that the
defect is the proximate cause of the accident.’” Simon v. Smith & Nephew, Inc., 990 F. Supp. 2d
395, 407 (S.D.N.Y. 2013) reconsideration denied, No. 13 CIV. 1909 PAE, 2014 WL 1257780(S.D.N.Y. Mar. 26, 2014) (citation omitted).
Defendants argue that Plaintiffs have not adequately alleged that the no!no! Hair removal
device, as sold, was unfit for its ordinary purpose, which they frame as hair removal. Plaintiffs
respond that they have adequately alleged that the device was unfit for its ordinary purpose
because that purpose was, they argue, the permanent hair removal that they allege was touted in
Radiancy’s marketing campaign. Plaintiffs also respond there is an issue of material fact as to
whether Plaintiffs were, in fact, using the device in a “customary, usual and reasonably
foreseeable manner.” Denny, 662 N.E.2d at 736. Defendants reply, in turn, that the question at
this stage is not whether there is a factual issue as to whether Plaintiffs were using the device for
its ordinary purpose, but rather whether Plaintiffs’ pleadings are adequate.
The Court agrees with Defendants that the existence of a factual issue about the nature of
Plaintiffs’ use of the product is not relevant at this stage of the proceedings. The only question is
whether Plaintiffs have adequately pleaded facts supporting a claim for breach of the implied
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warranty of merchantability pursuant to New York law. However, this dispute reveals an even
more fundamental problem: Plaintiffs have not adequately alleged that they have used the device
and that it was not fit for the ordinary purpose for which it was intended. Even if Plaintiffs are
right that the “ordinary purpose” of the product is the sort of long term hair removal that they
allege was advertised, they have provided insufficient allegations to support that claim. Each
individual plaintiff alleges purchasing the product but never alleges using it; as a result, they also
do not allege that they were injured by its unfitness through their personal use. Plaintiffs do
claim that their loss includes “the money and time expended by Plaintiffs and members of the
Class in purchasing and testing the Product, which they wrongly expected would prevent
unwanted hair growth.” Compl. ¶ 204. However, this single reference to testing the product—
disconnected from the experience of any individual—is not enough to support an inference that
each plaintiff actually used the product, where the allegations pertaining to the individual
plaintiffs do not make any such suggestion. See, e.g., id. ¶ 13. Moreover, Plaintiffs have not
alleged that they experienced the alleged defect personally. Instead, they suggest that their injury
occurred upon learning of the fact that the product would not function as they expected. See id.
¶ 167 (Plaintiffs “could only have possibly learned of their claims when Radiancy’s internal
documents were first revealed”). Accordingly, the Court concludes that Plaintiffs have not stated
a claim for breach of the implied warranty of merchantability, and this claim is dismissed
without prejudice. 17
17
Although the Court concludes that dismissing this claim without prejudice is proper, the Court
notes that that, pursuant to New York law, the question of “fit” appears to be closely aligned with
safety. See Brazier v. Hasbro, Inc., No. 99 CIV.11258(MBM), 2004 WL 515536, at *4 (S.D.N.Y.
Mar. 16, 2004) (‘‘Rather, recovery for breach of implied warranty of merchantability is
appropriate ‘upon a showing that the product was not minimally safe for its expected purpose
... .’”) (citations omitted and emphasis added). Cf. Derienzo v. Trek Bicycle Corp., 376 F. Supp.
33c. Breach of Implied Warranty of Fitness for Particular Purpose (Count 14,
part 1)
“For an implied warranty of fitness for a particular purpose claim to arise, the buyer must
establish that the seller had reason to know, at the time of contracting, the buyer’s particular
purpose for which the goods are required and that the buyer was justifiably relying upon the
seller’s skill and judgment to select and furnish suitable goods, and that the buyer did in fact rely
on that skill.” Saratoga Spa & Bath, Inc. v. Beeche Sys. Corp., 656 N.Y.S.2d 787, 790 (N.Y. App.
Div. 1997). (quoting U.C.C. 2-315). “‘The existence of this warranty, therefore, depends in part
upon the comparative knowledge and skill of the parties.’” Id. (quoting Blockhead, Inc. v. Plastic
Forming Co., 402 F. Supp. 1017, 1024)). Moreover, “[a] ‘particular purpose’ differs from the
ordinary purpose for which the goods are used in that it envisages a specific use by the buyer
which is peculiar to the nature of his business whereas the ordinary purposes for which goods are
used are those envisaged in the concept of merchantability and go to uses which are customarily
made of the goods in question.” N.Y. U.C.C. Law § 2-315 (McKinney) (cmt. 2).
Defendants argue that the Complaint fails to allege that Plaintiff informed Radiancy of
the particular purpose for which they were purchasing the product or that they were relying on
Radiancy’s expertise in choosing that product. Plaintiffs’ respond that, “whether Plaintiffs have
sufficiently shown that Radiancy should have known of Plaintiffs’ particular purposes in
purchasing the device is a factual question to be addressed through discovery.” Pls.’ Radiancy
2d 537, 570 (S.D.N.Y. 2005) (“This, combined with Clint Kolda’s testimony, noted above, that
taking a Y5 model bike off a 5–foot drop would constitute a “crash,” could indicate that jumping
was reasonably foreseeable, but that the Y5 was not designed or reasonably safe for such use.”)
(emphasis in original). Plaintiffs do not claim that the device was in any way unsafe. Instead, it
appears that they claim that it has not met their expectations. But “[a] warranty of fitness for
ordinary purposes ‘does not mean that the product will fulfill [a] buyer’s every expectation.’
Rather, it has been observed, such a warranty ‘provides for a minimal level of quality.’” Denny,
662 N.E.2d at 736 n.4.
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Opp’n at 25. However, Plaintiffs have not, in fact, responded to Defendants’ argument. The
question before the Court now is not whether Plaintiffs have shown that Plaintiffs had made
Defendants aware of their particular purposes; it is whether Plaintiffs have alleged that
Defendants had reason to know of the particular purposes that Plaintiffs had for the device.
Plaintiffs have not done so. Indeed, they have not even alleged that they had a particular purpose
for using the device. In fact, they allege—and argue throughout their briefing—that their purpose
in purchasing the device was the precise purpose for which they claim Radiancy was marketing
the device—long-term hair removal. Moreover, even assuming that Plaintiffs had a particular
purpose for using the device, the Complaint does not include any allegations suggesting that
Radiancy was aware of any particular purpose that Plaintiffs may have had for the device. Nor
have Plaintiffs alleged that any plaintiff communicated with Defendants such that they would
have had reason to know that Plaintiffs maintained a particular purpose for purchasing the
device. In sum, Plaintiffs have not identified a purpose for using the device that “differs from the
ordinary purpose for which the goods are used” or “a specific use by the buyer which is peculiar
to the nature of his business.” N.Y. U.C.C. Law § 2-315, cmt. 2. For all of these reasons, the
Court concludes that the Complaint fails to state a claim for breach of implied warranty of fitness
for particular purpose. Because “‘the allegation of other facts consistent with the challenged
pleading could not possibly cure the deficiency,’” dismissal of this claim with prejudice is
warranted. Rudder, 666 F.3d at 794.
d. Violation of Magnuson-Moss Warranty Act (Count 15)
The Magnuson-Moss Warranty Act provides a federal class action remedy for a breach of
warranty. 15 U.S.C. § 2310(d). The parties agree that the viability of this claim is dependent on
the viability of the state-law express and implied warranty claims. Because the Court dismisses
35
each of those claims, the Court dismisses this claim as well. The Court dismisses this claim
without prejudice given that it dismisses the implied warranty of merchantability claim and the
express warranty claim without prejudice.
4. Request to Amend Complaint
In a single sentence in the conclusion to Plaintiffs’ Opposition to Radiancy’s Motion to
Dismiss, Plaintiffs request, in the alternative, leave to amend their Complaint if the Court “sees
any technical defects in the Complaint.” Pls.’ Radiancy Opp’n at 30. Plaintiffs do not attach a
proposed amended complaint nor do they suggest how this amended complaint would fix any
“technical defects” with the Complaint. Accordingly, the request is denied.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant Radiancy’s [14] Motion to
Dismiss and GRANTS Defendant Rafaeli’s [13] Motion to Dismiss Putative Class Action
Complaint. All claims against Rafaeli are DISMISSED for want of personal jurisdiction, and
Plaintiffs’ alternative request to conduct jurisdictional discovery with respect to Rafaeli is
denied. All claims against Radiancy are DISMISSED because the Complaint fails to state a claim
against Radiancy. Specifically, the claim pursuant to New York General Business Law §§ 349-
350 (Count 1) and the implied warranty of fitness for a particular purpose claim (Count 14, part
2) are dismissed WITH PREJUDICE. The state-specific consumer protection claims (Counts 2
through 12), the express warranty claim (Count 13), the implied warranty of merchantability
claim (Count 14, part 1), and the Magnuson-Moss Warranty Act claim (Count 15) are dismissed
WITHOUT PREJUDICE. Finally, Plaintiffs’ cursory request to amend the complaint is
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DENIED. This action is dismissed in its entirety.
An appropriate Order accompanies this Memorandum Opinion.
Dated: March 30, 2015
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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