DocketNumber: Case No. 17–cv–02185–BLF
Citation Numbers: 293 F. Supp. 3d 888
Judges: Freeman
Filed Date: 3/5/2018
Status: Precedential
Modified Date: 7/25/2022
In this putative consumer class action, Plaintiffs Roy Berry, Jonathan Makcharoenwoodhi, Alex Gorbatchev, Brian Christensen, Anthony Martorello, Khanh Tran, Edward Beheler, Yuriy Davydov, Rebecca Harrison, Zachary Himes, Taylor Jones, Paul Servodio, Justin Leone, James Poore, Jr., and Kenneth Johnston (collectively, "Plaintiffs") allege severe defects in their Nexus 6P smartphones. Plaintiffs sued the companies that developed the phone-Huawei Device USA, Inc. ("Huawei") and Google LLC ("Google")-for breach of warranty, fraud, and unjust enrichment. Their twenty-three causes of action span a litany of state laws and one federal statute.
Presently before the Court are Huawei's Motion to Dismiss the Consolidated Amended Complaint and to Strike Class Allegations ("Huawei's Motion to Dismiss"), Huawei Mot., ECF 38; and Google's Motion to Dismiss Consolidated Amended Complaint ("Google's Motion to Dismiss"), Google Mot., ECF 39. In a previous *905order, the Court granted with leave to amend Huawei's Motion to Dismiss on the ground that the Court lacks personal jurisdiction over Huawei. ECF 113. Here, the Court dives into the merits of Huawei's and Google's Motions to Dismiss, which assert that Plaintiffs have failed to state a claim on which relief can be granted and that Plaintiffs' class allegations should be stricken.
The Court held a hearing on these motions on January 18, 2018. The Court has considered the arguments presented at oral argument and in the briefing, as well as the submitted evidence and applicable law. For the reasons that follow, the Court hereby GRANTS WITH LEAVE TO AMEND IN PART, GRANTS WITHOUT LEAVE TO AMEND IN PART, AND DENIES IN PART Huawei's and Google's Motions to Dismiss. The Court DENIES Huawei's and Google's motions to strike Plaintiffs' class allegations.
I. BACKGROUND
The following facts are drawn from the Consolidated Amended Complaint ("CAC"), ECF 28. In September 2015, Google unveiled the Nexus 6P, the newest version of its Nexus 6 smartphone. CAC ¶ 165. Google and Huawei created the Nexus 6P together, with Google handling software development and Huawei handling device manufacture. Id. At the launch event and in advertising, Google touted many of the superior features of the phone. See id. ¶¶ 7, 169, 171.
Unfortunately, according to the CAC, the Nexus 6P suffers from two defects. First, some phones unexpectedly turn off and, upon turning back on, experience an endless bootloop cycle (the "Bootloop Defect"). Id. ¶ 174. When the Bootloop Defect manifests, the phone becomes nonoperational and all unsaved data is lost because the phone cannot proceed beyond the start-up screen. Id. ¶ 175. Second, some phones prematurely shut off despite showing a battery charge of anywhere from 15-90% (the "Battery Drain Defect"). Id. ¶ 177. When the Battery Drain Defect manifests, the phone remains dead until the user reconnects it to power. Id. ¶ 178. After some charging, the battery shows the same or similar charge as indicated before the premature shut-off. Id. ; see also id. ¶ 61. Complaints about the Bootloop and Battery Drain Defects began cropping up online as early as September and October 2016. Id. ¶¶ 175, 184, 187-88.
This putative class action was commenced on April 19, 2017. ECF 1. Plaintiffs filed the operative complaint-the CAC-on May 23, 2017. Plaintiffs seek to represent a nationwide class of customers who purchased or own a Nexus 6P. CAC ¶¶ 1, 205. They also propose twelve statewide subclasses, which cover all persons or entities in the states of California, Florida, Illinois, Indiana, Michigan, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Texas, and Washington who purchased or own at least one Nexus 6P. Id. ¶ 205.
Plaintiffs bring twenty-three causes of action against both Huawei and Google under a spattering of state laws and one federal law. At the high level, their claims fall into three buckets: (1) warranty claims, (2) fraud claims, and (3) unjust enrichment claims. Their warranty claims consist of claims for (1) breach of express warranty on behalf of the nationwide class or each statewide subclass, (2) breach of the implied warranty of merchantability on behalf of the nationwide class or each statewide subclass, (3) violation of the California Song-Beverly Consumer Warranty Act on behalf of the California subclass, and (4) violation of the federal Magnuson-Moss Warranty Act presumably on behalf of the nationwide class. Id. ¶¶ 213-67, 284-96. Their fraud claims consist of (1) a common-law *906claim for deceit and fraudulent concealment on behalf of each statewide subclass and (2) claims for violations of state consumer protection statutes on behalf of the relevant statewide subclass.
In June 2017, Huawei and Google filed their Motions to Dismiss. Huawei's argument regarding lack of personal jurisdiction was addressed in a prior order. See ECF 113. Here, the Court focuses on the sufficiency of the CAC. Specifically, both Huawei's and Google's Motions to Dismiss assert that Plaintiffs have failed to allege sufficient facts entitling them to relief on their claims. Huawei Mot. 9-28; Google Mot. 3-29. Huawei and Google also request that the Court strike Plaintiffs' class allegations. Huawei Mot. 26-28; Google Mot. 29.
II. LEGAL STANDARD
A. Rule 12(b)(6)
"A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted 'tests the legal sufficiency of a claim.' " Conservation Force v. Salazar ,
However, the Court need not "accept as true allegations that contradict matters properly subject to judicial notice" or "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig. ,
B. Rule 12(f)
Federal Rule of Civil Procedure 12(f) permits a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." The function of a motion made under this rule is "to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Whittlestone, Inc. v. Handi-Craft Co. ,
The decision to strike a portion of a party's pleading is within the sound discretion of the court. Nurse v. United States ,
III. DISCUSSION
Both Huawei and Google contend that Plaintiffs have failed to allege sufficient facts entitling them to relief on their claims. Before turning to the merits of those arguments, the Court addresses Google's request for judicial notice.
A. Request for Judicial Notice
In connection with its Motion to Dismiss, Google seeks judicial notice of two documents: Google's U.S. Terms of Sale and the Nexus 6P webpage. ECF 57. Portions of the documents are referenced in the CAC, and both are capable of accurate and ready determination because they are publicly available online. These documents are properly subject to judicial notice. See Fed. R. Evid. 201(b) ; Knievel v. ESPN ,
B. Motions to Dismiss for Failure to State a Claim
Huawei and Google contend that Plaintiffs' CAC provides insufficient allegations to properly plead their causes of action. The Court begins by making some general observations about changes that should be made to any amended pleading. The Court then addresses the sufficiency of an allegation important to many of Plaintiffs' claims-namely, whether Huawei and Google had knowledge of the defects at the time of sale. Finally, the Court proceeds to analyze separately the claims asserted against Huawei and the claims asserted against Google.
1. General Observations
The Court starts with a couple general observations about the pleadings. First, in their twenty-three causes of actions, Plaintiffs often lump Huawei and Google together, alleging conduct by "Defendants" without distinguishing what Huawei did from what Google did. See, e.g. , CAC ¶¶ 230 ("Defendants received timely notice of the breaches experienced by Plaintiffs and Class members. Defendants were provided notice of the Defects by complaints lodged by consumers before or within a reasonable amount of time after the allegations of the Defects became public."), 241 ("Defendants breached the implied warranty of merchantability because the Phones they sold are not of a merchantable quality, but instead contain a Bootloop Defect and a Battery Drain Defect."), 270 ("Defendants concealed and suppressed material facts concerning the performance and quality of the Phones, and the quality of the Huawei, Google, and Nexus brands. Specifically, Defendants knew (or in the exercise of reasonable diligence should have known) of the Defects, but failed to disclose them prior to or at the time they marketed Phones and sold them to consumers."). As discussed in *908more detail below with respect to particular causes of action, this setup obfuscates what roles Huawei and Google independently played in the alleged harm and whether either is liable for its own conduct. See Adobe Sys. Inc. v. Blue Source Grp., Inc. ,
Second, Plaintiffs assert claims for breach of express warranty, breach of implied warranty, and unjust enrichment on behalf of a nationwide class but do not specify what law governs.
2. Huawei's and Google's Knowledge of Defects at the Time of Sale
Whether Huawei and Google had knowledge of the defects at the time that Plaintiffs purchased their phones is a common thread through many of the Plaintiffs' claims. Indeed, many of Plaintiffs' causes of action either start from the premise or entirely depend on the fact that Huawei and Google knew, or reasonably should have had known, of the defects at the time of sale. Therefore, the Court begins by examining the sufficiency of the Plaintiffs' allegations on that score, as the answer colors the analysis of many of the Plaintiffs' claims.
At multiple points in the CAC, Plaintiffs allege that "Defendants knew (or exercising due diligence should have known) that the Phones were defective at the time of sale." CAC ¶ 246; see also, e.g. , id. ¶¶ 6, 186, 226, 270, 281, 318, 322, 335, 359. However, that statement is conclusory, and the CAC does not contain sufficient factual matter to make that inference plausible.
The key issue here is timing. The Nexus 6P was released in September 2015. Id. ¶ 165. In the CAC, Plaintiffs provide multiple examples of consumers posting online about the Bootloop and Battery Drain Defects, but do not provide specific dates for any of those postings. Id. ¶ 184. Plaintiffs do not allege that Huawei ever saw or responded to these online complaints, let alone that Huawei knew about them before *909Plaintiffs purchased their phones. See Wilson v. Hewlett-Packard Co. ,
Although Plaintiffs allege particular dates for Google's online responses to the postings, those responses postdate Plaintiffs' purchases. Specifically, Plaintiffs allege that a Google representative responded to customer complaints about the Bootloop Defect in September 2016, stating: "We understand that a very small number of users are experiencing a bootloop issue on your device. We are continuing to investigate the situation, but can confirm that this is strictly a hardware related issue." CAC ¶ 187. Nevertheless, all Plaintiffs who allege that their phones manifested the Bootloop Defect purchased their phones before September 2016. See id. ¶¶ 19 (Gorbatchev: Oct. 2015), 28 (Christensen: Nov. 2015), 38 (Martorello: May 2016), 52 (Tran: Jan. 2016), 70 (Berry: Nov. 2015), 119 (Servodio: Mar. 2016).
Similarly, Plaintiffs allege that a Google representative responded to customer complaints about the Battery Drain Defect in October 2016, stating: "Just want to let you all know that [the Battery Drain Defect] is something we have been keeping track of, and our team is investigating....[M]any of you are reporting that you have been experiencing abnormal battery drain for multiple days now." Id. ¶ 188. Again, no Plaintiffs who allege that their phones manifested the Battery Drain Defect purchased their phones after the October 2016 statement by Google's representative. See id. ¶¶ 12 (Makcharoenwoodhi: Apr. 2016), 28 (Christensen: Nov. 2015), 38 (Martorello: May 2016), 58 (Beheler: July 2016), 70 (Berry: Nov. 2015), 79 (Davydov: Dec. 2015), 91 (Harrison: Apr. 2016), 99 (Himes: Mar. 2016), 111 (Jones: Jan. 2016), 130 (Leone: Oct. 2015), 142 (Poore: Feb. 2016), 153 (Johnston: Oct. 2016).
Without that crucial temporal element, Plaintiffs have not adequately alleged that Huawei or Google knew (or reasonably should have known) of the defects when Plaintiffs purchased their phones. This factual gap is not filled by allegations that some Plaintiffs contacted Huawei and Google about the defects, as most of those conversations took place after October 2016 or are not alleged to have taken place on a specific date. See id. ¶¶ 15, 23, 30-31, 33, 54, 63-64, 67, 72-73, 83-85, 94, 113, 133, 147, 155. The two Plaintiffs who contacted Huawei and Google before September 2016 are not enough, see id. ¶¶ 41-43, 102, because a handful of complaints do not, by themselves, plausibly show that Huawei or Google had knowledge of the defects and concealed the defects from customers. See Berenblat v. Apple, Inc. , No. 08-CV-04969-JF,
Perhaps sensing this deficiency, Plaintiffs shift gears in their opposition, positing that "[t]he Nexus 6P phones contain core component flaws that basic product testing would have disclosed at or near the time of manufacture." Opp'n 42. Whatever the viability of that theory, it finds no basis in the CAC. Contrary to Plaintiffs' suggestion, the allegation that "Defendants had superior *910knowledge and access to the relevant facts," CAC ¶ 272, does not equate to an allegation that straightforward testing would have revealed the defects.
Plaintiffs have not adequately alleged that Huawei or Google had knowledge of the defects at the time that Plaintiffs purchased their phones. Plaintiffs may amend the CAC to allege further facts in support of knowledge. With that conclusion in mind, the Court turns first to the claims asserted against Huawei and then to the claims asserted against Google.
3. Claims Asserted Against Huawei
In broad strokes, the CAC asserts three categories of claims against Huawei-warranty claims, fraud claims, and unjust enrichment claims. The Court addresses each of these categories one at a time.
a. Warranty Claims
Plaintiffs assert four sets of warranty claims: (1) breach of express warranty, (2) breach of the implied warranty of merchantability, (3) violation of the California Song-Beverly Consumer Warranty Act, and (4) violation of the federal Magnuson-Moss Warranty Act. Huawei moves to dismiss all four causes of action. The Court addresses each in turn.
i. Breach of Express Warranty
Plaintiffs bring their first cause of action for breach of express warranty on behalf of a putative nationwide class but do not specify which law governs the claim. CAC ¶ 214. Alternatively, they assert claims for breach of express warranty on behalf of the putative statewide subclasses under the laws of the respective states.
Huawei provides a written Limited Warranty for phones, tablets, wearables, PCs, and accessories. Huawei Mot., Ex. A. The Limited Warranty provides: "Huawei Device USA Inc., ('Huawei') represents and warrants to the original purchaser ('Purchaser') that Huawei's phones and accessories ('Product') are free from material defects, including improper or inferior workmanship, materials, and design, during the designated warranty period...when used normally and in accordance with all operating instructions." Id. , Preamble. For phones, the "designated warranty period" is "12 months from the date of purchase." Id. ¶ 1.
Under the terms of the Limited Warranty, Huawei agrees to "repair or replace at Huawei's sole option, any parts of the Product that are defective or malfunctioning during normal usage." Id. ¶ 4. However, "Huawei does not warrant that the operation of [the phone] will be uninterrupted or error-free." Id. ¶ 8. Moreover, the Limited Warranty becomes "null and void" if the Purchaser does not notify Huawei "of the alleged defect or malfunction of the Product during the applicable warranty period." Id. ¶ 9.
Huawei moves to dismiss Plaintiffs' express warranty claims. Huawei first contends that, for a handful of Plaintiffs, there are insufficient allegations to establish that Huawei breached the Limited Warranty. Huawei Mot. 10-11. Huawei then asserts a number of inadequacies applicable to different groupings of Plaintiffs. Specifically, Huawei contends that certain Plaintiffs have not adequately alleged that they provided Huawei notice and an opportunity to cure, that they relied on Huawei's Limited Warranty, or that they were in privity with Huawei. Id. at 11-12. The Court trudges through each of these various grounds for dismissal.
(1) Breach and Unconscionability
Huawei contends that it did not breach the Limited Warranty for those Plaintiffs whose phones manifested the defects outside the one-year warranty period and those Plaintiffs who did not notify Huawei of defects during the one-year warranty period. Huawei Mot. 10. Specifically, Plaintiffs Gorbatchev, Christensen, *911and Tran allege that their phones failed more than a year after purchase. CAC ¶¶ 19, 21 (Gorbatchev), 28-29 (Christensen), 52-53 (Tran). Plaintiffs Berry, Jones, and Leone do not allege that they notified Huawei of any defect before the expiration of one year. Id. ¶¶ 70-78 (Berry), 111-18 (Jones), 128-41 (Leone). Plaintiffs do not dispute that these Plaintiffs fall outside the Limited Warranty but instead argue that the one-year warranty limitation is unconscionable.
Because Plaintiffs and Huawei address the unconscionability issue under California law and identify no material differences in other state laws, the Court uses California law as the basis for its analysis. Under California law, a contract provision is "unconscionable, and therefore unenforceable, only if it is both procedurally and substantively unconscionable." In re iPhone ,
At most, Plaintiffs have made a weak showing that the Limited Warranty's one-year duration provision is procedurally unconscionable. Plaintiffs contend that the Limited Warranty is unconscionable because Huawei and its customers are in an unequal bargaining position, where customers cannot negotiate warranty terms. CAC ¶¶ 226, 246. The bargaining positions of Huawei and its customers are not as imbalanced as Plaintiffs suggest because Plaintiffs have not adequately alleged that Huawei knew of and concealed the defects at the time of sale. See In re Sony Grand Wega KDF-E A10/A20 Series Rear Projection HDTV Television Litig. ,
Plaintiffs make no allegations relevant to substantive unconscionability. Courts have rejected substantive unconscionability arguments where, as here, the duration of the express warranty "corresponds to the maximum limit permitted under [state] law" for implied warranties. Marchante v. Sony Corp. of Am. ,
Based on the allegations in the CAC, Huawei's one-year Limited Warranty is not unconscionable, and the Limited Warranty is enforceable. Accordingly, Plaintiffs have not stated a claim for breach of express warranty for Plaintiffs Gorbatchev, Christensen, and Tran whose phone defect manifested after the one-year Limited Warranty expired or for Plaintiffs Berry, Jones, and Leone who did not notify Huawei of a defect within the one-year Limited Warranty period. The Court GRANTS Huawei's Motion to Dismiss the express warranty claim of Plaintiffs Gorbatchev, Christensen, Tran, Berry, Jones, and Leone with leave to amend to allege further facts in support of Plaintiffs' unconscionability argument.
(2) Notice and Opportunity to Cure
For many of those same Plaintiffs, Huawei relatedly argues that the failure to give Huawei notice or an opportunity to cure is fatal to their claims. Huawei Mot. 11-12. In particular, Plaintiffs Gorbatchev, Tran, Berry, and Leone do not allege that they contacted Huawei to seek repairs. Id. at 12. Additionally, Plaintiff Beheler does not allege that he allowed Huawei to act on its offer to repair or replace his phone. Id. Due to the variations in state law on this issue, the Court proceeds through each Plaintiff's state-law claim individually.
(a) California
Beyond California Plaintiff Gorbatchev's falling outside the terms of Huawei's Limited Warranty, California law does not supply an independent notice-related bar to his express warranty claim. As a general matter, a "buyer must, within a reasonable time after he or she discovers or should have discovered any breach, notify the seller of breach or be barred from any remedy."
Here, Plaintiff Gorbatchev asserts his express warranty claim against Huawei. The allegations in the CAC support that Huawei is a manufacturer with whom Plaintiff Gorbatchev has never dealt. Plaintiff Gorbatchev did not purchase his Nexus 6P phone from Huawei; instead, he purchased his phone through the Google Store. CAC ¶ 19. After his phone began exhibiting the Bootloop Defect, he interacted solely with Google in an unsuccessful attempt to secure a new phone under the warranty. Id. ¶¶ 23-24. Because Plaintiff Gorbatchev is not required to provide notice to manufacturer Huawei, his claim cannot be dismissed on this ground.
(b) Illinois
Under Illinois law, notice is an "essential element" of a breach of warranty claim.
*913Maldonado v. Creative Woodworking Concepts, Inc. ,
The allegations of Illinois Plaintiff Tran do not withstand scrutiny under these standards. As noted above, Plaintiff Tran is not alleged to have informed Huawei of the Bootloop Defect in his phone. Indeed, there is no allegation that he contacted Huawei at all. CAC ¶¶ 52-57. Nor can Plaintiff Tran rely on the first notice exception because the CAC does not aver that other circumstances put Huawei on notice that there was an issue with Plaintiff Tran's phone. Under the cases, Huawei's alleged general awareness of the defects in Nexus 6P phones is insufficient. See Connick ,
(c) Indiana
Indiana law, too, requires that the buyer give notice to the seller before bringing suit for breach of warranty.
(d) Michigan
Under Michigan law, it appears that "[t]he buyer must provide reasonable notice in order to recover for a *914breach of warranty." Eaton Corp. v. Magnavox Co. ,
(e) Pennsylvania
The Court rejects Huawei's notice argument as to Pennsylvania Plaintiff Leone. The Pennsylvania statute says that "the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach."
In sum, the Court GRANTS WITH LEAVE TO AMEND Huawei's Motion to Dismiss the express warranty claim of Plaintiffs Tran and Berry-but not Plaintiffs Gorbatchev, Beheler, or Leone-for failure to adequately plead notice and an opportunity to cure.
(3) Basis of the Bargain and Reliance
Huawei next contends that the Court should dismiss the express warranty claims of certain Plaintiffs who do not plead that they saw or relied on Huawei's warranty. Huawei Mot. 11. Huawei's argument covers Plaintiffs from California (Makcharoenwoodhi, Gorbatchev, and Christensen), Florida (Martorello), Illinois (Tran), New York (Davydov), North Carolina (Harrison and Himes), Ohio (Servodio), Pennsylvania (Leone), Texas (Poore), and Washington (Johnston).
In all of the relevant states, an express warranty is created only when an "affirmation of fact or promise" or a "description of the goods" is part of the "basis of the bargain."
(a) California
In adopting the Uniform Commercial Code ("UCC"), California has shifted its view of whether a plaintiff must allege reliance on specific promises to sustain express warranty claims. Comment 3 *915to the analogous UCC provision, UCC § 2-313, provides:
The present section deals with affirmations of fact by the seller, descriptions of the goods or exhibitions of samples, exactly as any other part of a negotiation which ends in a contract is dealt with. No specific intention to make a warranty is necessary if any of these factors is made part of the basis of the bargain. In actual practice affirmations of fact made by the seller about the goods during a bargain are regarded as part of the description of those goods; hence no particular reliance on such statements need be shown in order to weave them into the fabric of the agreement. Rather, any fact which is to take such affirmations, once made, out of the agreement requires clear affirmative proof. The issue normally is one of fact.
UCC § 2-313, cmt. 3 (emphasis added). While pre-UCC California law required proof of reliance on specific promises, comment 3 to UCC § 2-313 expressly signals a departure from that requirement. See Keith v. Buchanan ,
The Court acknowledges that some district court cases continue to indicate that reliance is required after the decision in Weinstat . See, e.g. , Nabors v. Google, Inc. , No. 10-CV-03897 EJD,
In its reply, Huawei asserts that Weinstat is distinguishable because it involved parties that were in privity with one another. Huawei Reply 8. In support of its argument, Huawei cites a district court case drawing that distinction. See Coleman v. Boston Sci. Corp. , No. 10-CV-01968-OWW,
At least on the facts of this case, the Court follows those cases that have not required reliance as a prerequisite to asserting an express warranty claim. As Weinstat emphasizes, the statute focuses on the seller and looks to the promises and affirmations that the seller made.
(b) Florida
Under Florida law, "an express warranty is generally considered to arise only where the seller asserts a fact of which the buyer is ignorant prior to the beginning of the transaction and on which the buyer justifiably relies as part of the 'basis of the bargain.' " Thursby v. Reynolds Metals Co. ,
(c) Illinois
Whether a plaintiff must plead reliance under Illinois law is slightly unclear. Some Illinois courts have suggested that reliance is an invariable requirement for an express warranty claim. See, e.g. , Regopoulos v. Waukegan P'ship ,
Despite the inconsistency, the legal principles do not seem to be irreconcilable. In particular, the cases can be harmonized based on the presence or absence of privity. When privity is lacking, the background rule mandates pleading and proving reliance. See Regopoulos ,
As discussed in more detail in the privity section below, Illinois Plaintiff Tran does not sufficiently plead that he is in privity with Huawei or that an exception applies. Without an adequate allegation of privity, Plaintiff Tran's claim must be dismissed for failure to plead reliance. Accordingly, the Court GRANTS Huawei's motion to dismiss Plaintiff Tran's express warranty claim with leave to amend to allege relevant facts.
(d) New York
Under New York law, the buyer may bring an action for breach of express warranty against a manufacturer only if "the buyer relied [on the manufacturer's statements] when contracting with his immediate seller." Avola v. La.-Pac. Corp. ,
(e) North Carolina
The same result obtains under North Carolina law. As Plaintiffs' own authority provides, "[a] plaintiff must have relied upon the warrantor's statement in order to establish an express warranty and its breach." Eclipse Packaging, Inc. v. Stewarts of Am., Inc. , No. 14-CV-00195-RLV,
*918see also Harbor Point Homeowners' Ass'n, Inc. ex rel. Bd. of Dirs. v. DJF Enters., Inc. ,
North Carolina Plaintiffs Harrison and Himes do not argue or allege that the natural tendency of Huawei's representation that the Nexus 6P phones are "free from material defects" in normal operation was to induce them to purchase the phone. This representation stands in stark contrast to the representation at issue in Bernick . There, the North Carolina Supreme Court held that the defendants' statement that their hockey mouthguard offered "maximum protection to the lips and teeth" would naturally tend to induce a mother to purchase one for her son. Bernick ,
(f) Ohio
In the case of express written warranties, Ohio law follows the same approach as California law-namely, that express warranty claims may proceed even in the absence of an allegation of reliance. In Norcold, Inc. v. Gateway Supply Co. , the Ohio Court of Appeals rested on comment 3 of UCC § 2-313 and followed the "decisive majority of courts" that have held that "reliance is not an element in a claim for breach of an express written warranty."
Huawei's cited authority, McKinney v. Bayer Corp. ,
(g) Pennsylvania
Under Pennsylvania law, there is a rebuttable presumption of reliance. See Cole v. Gen. Motors Corp. ,
(h) Texas
Texas courts have interpreted Texas's express warranty law to incorporate a reliance requirement. In Compaq Computer Corp. v. Lapray , the Texas Supreme Court surveyed the states that have and have not adopted the reliance requirement and noted that "[u]nder Texas law, we have said that '[r]eliance is...not only relevant to, but an element of proof of, plaintiffs' claims of breach of express warranty (to a certain extent).' "
(i) Washington
Washington courts sometimes require a form of reliance. For example, in Touchet Valley Grain Growers, Inc. v. Opp & Seibold General Construction, Inc. , the Washington Supreme Court explained that "[r]ecovery for breach of an express warranty is contingent on a plaintiff's knowledge of the representation."
*920Reece v. Good Samaritan Hosp. ,
In sum, the Court GRANTS WITH LEAVE TO AMEND Huawei's Motion to Dismiss the express warranty claim of Plaintiffs Martorello, Tran, Davydov, Harrison, Himes, and Poore-but not Plaintiffs Makcharoenwoodhi, Gorbatchev, Christensen, Servodio, Leone, or Johnston-for failure to adequately plead reliance.
(4) Privity
Finally, Huawei contends that the Court should dismiss the express warranty claims of Florida Plaintiff Martorello and Illinois Plaintiff Tran because those Plaintiffs are not in privity of contract with Huawei. Huawei Mot. 12. Huawei properly asserts that the CAC's bare allegation that all Plaintiffs "were in privity of contract with Huawei...by virtue of their interactions with Huawei," CAC ¶ 242, is conclusory and does not plausibly allege privity. Thus, the Court must address whether privity of contract is required to state a claim for breach of express warranty under Florida and Illinois law.
(a) Florida
Florida courts are split on whether claims for breach of express warranty always require privity. See In re Clorox Consumer Litig. , No. 12-CV-00280-SC,
(b) Illinois
As noted above, Illinois's law on privity is congruous with its law on reliance. Illinois generally requires the plaintiff to be in privity with the defendant. Baldonado v. Wyeth , No. 04-CV-04312,
That conclusion does not end the analysis. Where the parties are not in privity, there may be an express warranty if the plaintiff shows that the statement *921became part of the basis of the bargain. Ampat/Midwest, Inc. v. Ill. Tool Works, Inc. , No. 85-CV-10029,
In sum, the Court GRANTS WITH LEAVE TO AMEND Huawei's Motion to Dismiss the express warranty claim of Plaintiffs Martorello and Tran for failure to adequately plead privity.
ii. Breach of Implied Warranty of Merchantability
Plaintiffs bring their second cause of action for breach of the implied warranty of merchantability on behalf of a putative nationwide class but do not specify which law governs the claim. CAC ¶ 235. Alternatively, they assert claims for breach of the implied warranty of merchantability on behalf of the putative statewide subclasses under the laws of the respective states. Id. ¶ 236. Specifically, Plaintiffs' cause of action alleges that Huawei "impliedly warranted that the Phones were of a merchantable quality" but failed to keep that promise because the Nexus 6Ps "were not in merchantable condition and are not fit for the ordinary purpose for which phones are used." Id. ¶ 239. Huawei seeks dismissal on the grounds that Plaintiffs have not adequately pled that they were in privity with Huawei, that they provided Huawei notice and an opportunity to cure, and that the phones were unmerchantable. Huawei Mot. 13-16.
(1) Privity and Third-Party Beneficiary
Huawei first contends that certain Plaintiffs who did not purchase from Huawei cannot assert implied warranty claims. Huawei Mot. 14. Huawei argues that vertical privity is a necessary element to sustain an implied warranty claim and that these Plaintiffs do not adequately plead privity. Id. With one limited exception, Plaintiffs concede that the relevant states require vertical privity, but they respond that the third-party beneficiary exception applies here and is adequately pled. Opp'n 31-34.
Preliminarily, Plaintiffs have failed to sufficiently plead privity between the relevant Plaintiffs and Huawei. Specifically, Plaintiffs Makcharoenwoodhi, Gorbatchev, Martorello, Tran, Berry, Davydov, Harrison, Himes, Servodio, and Johnston did *922not purchase their phones from Huawei. CAC ¶¶ 12 (Makcharoenwoodhi: Best Buy), 19 (Gorbatchev: Google), 38 (Martorello: Google), 52 (Tran: Google), 70 (Berry: Google), 79 (Davydov: Amazon), 91 (Harrison: Amazon), 99 (Himes: Best Buy), 119 (Servodio: Newegg), 153 (Johnston: Best Buy). Moreover, without any supporting factual content, the conclusory statement that all Plaintiffs "were in privity of contract with Huawei...by virtue of their interactions with Huawei," id. ¶ 242, does not plausibly allege privity. Thus, the Court must address the existence of the vertical privity requirement and the third-party beneficiary exception.
First, Plaintiffs correctly note that "Michigan has abandoned the privity requirement for implied-warranty claims." Pack v. Damon Corp. ,
Huawei cites cases recognizing a vertical privity requirement under California, Illinois, New York, North Carolina, Ohio, and Washington law. See Clemens v. DaimlerChrysler Corp. ,
In its moving papers, Huawei concedes that the relevant states allow plaintiffs to bring implied warranty claims in the absence of privity if the plaintiff shows that he was a beneficiary to a contract between the defendant and a third party. Huawei Mot. 14 (citing In re NVIDIA GPU Litig. , No. 08-CV-04312-JW,
With respect to Huawei, Plaintiffs fulfill these pleading requirements. Specifically, Plaintiffs point to Huawei's Limited Warranty as the contract which is made expressly for Plaintiffs' benefit. CAC ¶ 242. That express warranty represents to the original purchaser that the Nexus 6P is free from material defects and that Huawei would repair or replace defective or *923malfunctioning parts. Id. ¶¶ 218-20. As Plaintiffs allege, the Limited Warranty is designed to benefit only the end users, not the retailers who sell the phones. Id. ¶ 242; see also id. ¶ 294 ("The retailers were not intended to be the ultimate consumers of the Nexus 6P smartphones and have no rights under the warranty agreements connected with the Nexus 6P smartphones; these agreements were designed for and intended to benefit the end-users only."). Similar allegations have been held to be sufficient to invoke the third-party beneficiary exception. See, e.g. , In re MyFord ,
Accordingly, lack of privity is not an appropriate basis on which to dismiss Plaintiffs' claims for breach of the implied warranty of merchantability.
(2) Notice and Opportunity to Cure
In a similar vein to its argument for dismissal of the express warranty claims, Huawei contends that certain Plaintiffs' failure to give Huawei notice or an opportunity to cure is fatal to these Plaintiffs' implied warranty claims. Huawei Mot. 15-16. In particular, Plaintiffs Beheler, Berry, Harrison, Himes, Leone, and Poore do not allege that they provided Huawei notice of their breach of implied warranty claims. Id. at 16. Due to the variations in state law on this issue, the Court proceeds through each Plaintiff's state-law claim individually.
(a) Indiana
The cases cited with respect to Indiana's notice requirement for express warranty claims apply equally to implied warranty of merchantability claims. See Anderson ,
(b) Michigan
Under Michigan law, a "plaintiff's failure to give defendants reasonable notice of her breach-of-warranty claims" justifies dismissal. Gorman v. Am. Honda Motor Co. ,
(c) North Carolina
In North Carolina, "the burden of pleading...that seasonable notification *924has been given is on the buyer." Maybank v. S. S. Kresge Co. ,
Based on those standards, both North Carolina Plaintiffs have adequately pled notice. Most importantly, Plaintiffs Harrison and Himes are lay consumers who filed this action against Huawei and are not alleged to be untimely. Additionally, both Plaintiffs contacted Huawei about the problems they were experiencing with their Nexus 6P phones and followed up with Huawei when their concerns were not resolved. CAC ¶¶ 94 (Harrison), 103-04 (Himes). Other North Carolina cases have held that repeatedly returning a product can be sufficient to put the defendant on notice. See, e.g. , Ismael ,
(d) Pennsylvania
The parties present no reason to conclude that, with regard to notice, express and implied warranty claims should be treated differently under Pennsylvania law. As noted above, there is authority holding that the filing of a complaint can be sufficient to notify the manufacturer of breach. See Precision Towers ,
(e) Texas
Although some Texas courts have held that notice to a manufacturer is not required, Vintage Homes, Inc. v. Coldiron ,
Although the CAC states that Texas Plaintiff Poore "contacted Huawei to request that his Phone be repaired or replaced," CAC ¶ 147, it gives no indication that Poore communicated the particular issues that he was having with his phone to Huawei. Contrary to Plaintiffs' suggestion, Opp'n 26, Plaintiff Poore cannot rely on Huawei's generalized knowledge of concerns about the phones. See U.S. Tire-Tech ,
Accordingly, the Court GRANTS Huawei's Motion to Dismiss the implied warranty claims of Plaintiffs Berry and Poore-but not Plaintiffs Beheler, Harrison, Himes, or Leone-with leave to amend to allege further facts about whether any of these Plaintiffs provided notice and an opportunity to cure.
(3) Merchantability
In a particularly weak final argument, Huawei contends that Plaintiffs do not plausibly allege that their Nexus 6P phones were not merchantable. Huawei Mot. 16. Huawei's argument is unpersuasive.
The implied warranty of merchantability arises by operation of law rather than contract. See, e.g. , Hauter v. Zogarts ,
Plaintiffs' allegations easily satisfy these requirements. The CAC identifies some of the basic functions of a smartphone, including "mak[ing] calls, send[ing] text messages, access[ing] the internet," and storing "photographs, videos, text messages, and contact lists." CAC ¶ 175. Further, the Bootloop and Battery Drain Defects render the phones unfit for those purposes. When the Bootloop Defect manifests, the phone experiences total failure and the customer permanently loses access to any data stored on the phone. Id. ¶¶ 174-75; see also id. ¶ 175 (describing a Nexus 6P with the Bootloop Defect as "essentially an expensive paperweight"). When the Battery Drain Defect manifests, the phone experiences severe battery drainage with early shut-off. Id. ¶¶ 176-77. The customer may use the phone again only after connecting the phone to power. Id. ¶ 178. It is no response that some Plaintiffs continued to use their phones after the defects manifested, see Huawei Mot. 16, as "the implied warranty can be breached when, although capable of performing its ordinary function, the product nonetheless fails in a significant way to perform as a reasonable consumer would expect." In re Carrier IQ ,
Accordingly, Plaintiffs have adequately pled that the Nexus 6Ps were unmerchantable, and this is not an appropriate basis on which to dismiss Plaintiffs' claims for breach of the implied warranty of merchantability.
*926iii. Song-Beverly Consumer Warranty Act
The California Plaintiffs' cause of action for violations of the Song-Beverly Consumer Warranty Act ("Song-Beverly Act"),
Accordingly, the Court GRANTS Huawei's Motion to Dismiss the Song-Beverly Act claim with leave to amend to assert where the phone purchases took place.
iv. Magnuson-Moss Warranty Act
Plaintiffs' third cause of action alleges violations of the Magnuson-Moss Warranty Act,
b. Fraud and Deceptive Practices Claims
Plaintiffs assert various fraud claims against Huawei. Specifically, they bring common-law claims for deceit and fraudulent concealment, CAC ¶¶ 268-77, as well as claims under a number of state consumer fraud statutes, id. ¶¶ 297-535. There are two common theories underlying fraud claims: affirmative misrepresentations and fraudulent omissions. The CAC does not allege that Huawei made any affirmative representations about Nexus 6P phones, other than to treat Huawei and Google as a collective. See, e.g. , id. ¶ 275 ("Plaintiffs and Class members relied to their detriment upon Defendants'...fraudulent misrepresentations...regarding the quality of Phones and the Defects in deciding to purchase their Phones."). Rather, *927Plaintiffs rely on Huawei's failure to notify consumers of the alleged Bootloop and Battery Drain Defects. Id. ¶¶ 270, 303, 319, 335, 343, 356, 374, 394, 403, 418, 428, 437, 448, 466, 482, 491, 508, 522. Huawei challenges the viability of this fraudulent omissions theory on multiple grounds and then makes additional arguments with regard to some of the statutory claims.
i. No Duty to Disclose
Huawei first contends that it had no duty to disclose the defects because Plaintiffs have not plausibly alleged that Huawei had knowledge of the defects prior to the time of sale. Huawei Mot. 19. The Court looks to California law to guide the analysis because Plaintiffs rely solely on California law in responding to Huawei's arguments and do not identify any material differences with other state laws. Opp'n 41-48, 50. California law supports this common-sense notion that a defendant cannot "disclose facts of which it was unaware." In re Sony Grand Wega ,
As explained in detail above, Plaintiffs have not adequately pled that Huawei had knowledge of either the Bootloop Defect or the Battery Drain Defect when the Plaintiffs purchased their Nexus 6Ps. Therefore, Huawei had no duty to disclose the defects. Accordingly, the Court GRANTS Huawei's Motion to Dismiss Plaintiffs' fraud claims to the extent they are based on a fraudulent omissions theory with leave to amend to allege facts about Huawei's knowledge of the defects at the time of sale.
ii. No Unreasonable Safety Hazard
Huawei next contends that Plaintiffs' statutory fraud claims under California, Florida, North Carolina, Texas, and Washington law must be dismissed because the CAC does not plausibly allege that the phone defects posed an unreasonable safety hazard. Huawei Mot. 21. Although Plaintiffs argue that an unreasonable safety hazard is not a necessary element for the statutory fraud claims, the Ninth Circuit recently held that, in the absence of affirmative misrepresentations, "[t]o state a claim for failing to disclose a defect, a party must allege," among other things, "the existence of an unreasonable safety hazard." Williams ,
The Court disagrees with Plaintiffs' contention that the CAC adequately alleges such an unreasonable safety hazard. "[A] party's allegations of an unreasonable safety hazard must describe more than merely 'conjectural and hypothetical' injuries." Williams ,
iii. Manifestation of Defect Outside Warranty
Huawei separately contends that there can be no fraudulent omissions claims for Plaintiffs Gorbatchev, Christensen, and Tran because their Nexus 6Ps did not allegedly malfunction until after the expiration of the Limited Warranty, CAC ¶¶ 19-21, 28-29, 52-53. Huawei Mot. 22-23. It is true that, as a policy matter, California courts have cabined the scope of the duty to disclose to avoid the unsavory result that manufacturers are on the hook for every product defect that occurs at any time, regardless of any time limits contained in their warranties. See Daugherty v. Am. Honda Motor Co. ,
iv. California Consumers Legal Remedies Act
The California Plaintiffs bring a claim under California's Consumers Legal Remedies Act ("CLRA"),
Plaintiffs do not dispute that none of the California Plaintiffs filed the CLRA affidavit required by the statute. Opp'n 50. Instead, Plaintiffs characterize this requirement as a state procedural rule that does not apply in federal court.
In their opposition, Plaintiffs state that "[s]hould the Court require venue affidavits here, Plaintiffs will attach them to an amended complaint." Opp'n 50. Accordingly, the Court GRANTS Huawei's Motion to Dismiss Plaintiffs' CLRA claim with leave to file the necessary CLRA affidavit.
v. California Unfair Competition & False Advertising Laws
The California Plaintiffs assert a claim under California's Unfair Competition Law ("UCL"),
(1) UCL
The Court first turns to the UCL claim. The UCL prohibits any "unlawful, unfair or fraudulent business act or practice."
(a) Unlawful Business Act or Practice
Plaintiffs predicate their claim under the "unlawful" prong in part on Huawei's alleged violation of the Magnuson-Moss Warranty Act. See CAC ¶ 300. The "unlawful" prong of the UCL covers "any business practice that violate[s] an independent statutory duty." Cel-Tech Commc'ns ,
(b) Unfair Business Act or Practice
The "unfair" prong of the UCL creates a cause of action for a business practice that is unfair even if not proscribed by some other law. Korea Supply Co. v. Lockheed Martin Corp. ,
Although the precise test for the UCL's "unfair" prong has not been definitively established, Plaintiffs endorse the balancing test enunciated in South Bay Chevrolet v. General Motors Acceptance Corp. ,
Under any test, Plaintiffs do not allege sufficient facts to establish that Huawei engages in a "practice of selling defective phones without providing an adequate remedy to cure the Defects." CAC ¶ 302. Specifically, Plaintiffs point to five aspects of "Defendants" Huawei and Google's conduct: (1) knowingly sold defective phones, (2) refused to repair or replace phones when the defects manifested outside the warranty period, (3) avoided providing warranty service by blaming minor cosmetic issues, (4) had long wait periods on warranty claims, and (5) provided replacement phones that were also defective. Id. ¶ 301. Although Plaintiffs endorse evaluating this conduct as a whole without testing the sufficiency of each aspect, the problem is that Plaintiffs lump Huawei and Google together under the heading of "Defendants" when each aspect does not apply uniformly to both. Therefore, the Court must undertake the difficult endeavor of teasing out which actions the CAC attributes to Huawei alone.
Ground (1) is easily discarded, as it merely parrots the already-rejected contention that Huawei had knowledge of the defects at the time of sale. Ground (2) also falls away because the California courts have held that there can be no "unfair" business practice, at least under the FTC Act section 5 test, when the product functions as warranted throughout the term of an express warranty. Daugherty ,
Ground (4) asserts that Huawei "[r]equir[ed] consumers to wait several weeks to several months to receive accommodation for warranty claims." CAC ¶ 301.d. However, Plaintiffs have not identified any California Plaintiff who complains about wait times, see id. ¶¶ 65, 85, 122, 156, and Plaintiffs do not argue, by reference to allegations in the CAC, that there is a basis to infer that Huawei's practice has affected any California resident. Moreover, the failure to provide timely responses to warranty claims might amount to poor customer service but, standing alone, cannot fairly be characterized as immoral, unethical, oppressive, or unscrupulous. Finally, based on the present allegations, ground (5) does not apply to Huawei at all: Google is the only actor alleged to have provided certain Plaintiffs with a defective replacement phone. Id. ¶¶ 49, 75, 113-14, 136. Thus, none of Plaintiffs' five asserted aspects of Huawei's conduct withstands scrutiny at the motion to dismiss stage.
More broadly, the CAC pleads that Huawei's conduct is unfair because it "violated California public policy, legislatively declared in the Song-Beverly Consumer Warranty Act, requiring a manufacturer to ensure that goods it places on the market are fit for their ordinary and intended purposes." Id. ¶ 301. Even if that description of the Song-Beverly Act accurately captures the general thrust of the statute, it fails to account for the Song-Beverly Act's circumscribed geographic reach to sales of consumer goods in California . See
Accordingly, the Court GRANTS Huawei's Motion to Dismiss Plaintiffs' UCL claim under the unfair prong with leave to amend to allege relevant facts.
(c) Fraudulent Business Act or Practice
In the CAC, Plaintiffs identify three fraudulent acts on the part of Huawei and Google: (1) "[k]nowingly and intentionally concealing from Plaintiffs and California Subclass members the existence of the Defects in the Phones"; (2) "[f]alsely marketing the Phones as being functional and not possessing defects that would render them useless"; and (3) "[p]romoting the battery capabilities and lifespan despite knowing of the significant Defects in the Phones." CAC ¶ 303. Putting aside the fact that the allegations do not distinguish between Huawei and Google, all three acts are premised on Huawei's knowledge of the defects at the time of sale to the California Plaintiffs. Plaintiffs' opposition likewise characterizes the claim under the UCL fraud prong as turning on the "allegations of Defendants' knowledge of the Nexus 6Ps core defects, failure to disclose them, and portrayal of these phones as well functioning." Opp'n 40. As the Court has repeatedly reiterated, Plaintiffs have not adequately alleged that Huawei had knowledge of the defects when the California Plaintiffs purchased their phones. Accordingly, the Court GRANTS Huawei's Motion to Dismiss Plaintiffs' UCL claim under the fraud prong with leave to amend to allege that Huawei had knowledge of *932the defects at the time that the California Plaintiffs purchased their phones.
(2) FAL
The Court next addresses the FAL claim. In relevant part, the statutory provision provides:
It is unlawful for any...corporation...with intent directly or indirectly to dispose of real or personal property or to perform services, professional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or disseminated...from this state before the public in any state, in any newspaper or other publication, or any advertising device,... or in any other manner or means whatever, including over the Internet, any statement, concerning that real or personal property or those services, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.
Huawei is correct. As reflected in the statutory language quoted above, an FAL claim requires an advertising statement. See Norcia v. Samsung Telecommunications Am., LLC , No. 14-CV-00582-JD,
vi. Ohio Trade Deceptive Practices Act
Plaintiff Servodio asserts a claim under the Ohio Deceptive Trade Practices Act ("ODTPA") on behalf of the Ohio subclass. CAC ¶¶ 461-75. This claim must be dismissed because Servodio, as a consumer, lacks standing to sue under the ODTPA.
Although the Ohio Supreme Court has not addressed this question, the Ohio Court of Appeals has held that the ODTPA affords no relief to consumers because the statute is designed to protect commercial actors against objectionable commercial conduct. Dawson v. Blockbuster, Inc. ,
Plaintiffs cite a case where the District Court of New Hampshire deferred deciding the ODTPA standing issue at the motion for certification stage. In re Dial Complete Mktg. & Sales Practices Litig. ,
Accordingly, the Court GRANTS Huawei's Motion to Dismiss the ODTPA claim. Because consumers cannot bring the ODTPA claim as a matter of law, the Court dismisses this claim without leave to amend.
c. Unjust Enrichment Claim
Plaintiffs' final cause of action is for unjust enrichment. CAC ¶¶ 278-83. Relying on Astiana v. Hain Celestial Group, Inc. ,
However, Plaintiffs do not identify any particular law but instead assert their claim "on behalf of the nationwide Class based upon universal principles in equity." CAC ¶ 279. As this Court and other courts in this district have recognized, "due to variances among state laws, failure to allege which state law governs a common law claim is grounds for dismissal." Romero v. Flowers Bakeries, LLC , No. 14-CV-05189-BLF,
Accordingly, the Court GRANTS Huawei's Motion to Dismiss the unjust enrichment claim with leave to amend to assert which state law applies.
4. Claims Asserted Against Google
In broad strokes, the CAC asserts three categories of claims against Google-warranty claims, fraud claims, and unjust enrichment claims. The Court first addresses an argument about Google's choice-of-law clause that cuts across these three categories for the non-California Plaintiffs who purchased from Google, then addresses each category individually.
*934a. Google's Choice-of-Law Clause
Google first seeks dismissal of claims under out-of-state laws for five non-California Plaintiffs who purchased their Nexus 6Ps from Google. Google Mot. 3. Specifically, Plaintiffs Tran, Berry, and Leone purchased their Nexus 6Ps through the Google Store, and Plaintiffs Martorello and Jones purchased theirs directly from Google. CAC ¶¶ 38, 52, 70, 111, 130. Under Google's Terms of Sale, "[t]he laws of California, U.S.A. apply to these Terms, excluding California's choice of law rules, and will apply to any disputes arising out of or relating to these Terms." Google argues that this choice-of-law clause should be enforced against the out-of-state Plaintiffs attempting to assert non-California based causes of action, Google Mot. 3-4, and Plaintiffs offer no meaningful response. The Court briefly examines the issues related to Google's choice-of-law clause.
One issue is whether these out-of-state Plaintiffs mutually assented to Google's Terms of Sale, a question which implicates the law of Internet-based contract formation. As the Ninth Circuit has recognized, "[c]ontracts formed on the Internet come primarily in two flavors: 'clickwrap' (or 'click-through') agreements, in which website users are required to click on an 'I agree' box after being presented with a list of terms and conditions of use; and 'browsewrap' agreements, where a website's terms and conditions of use are generally posted on the website via a hyperlink at the bottom of the screen." Nguyen v. Barnes & Noble Inc. ,
Another issue is whether to enforce the contractual choice-of-law provision. California law recognizes "strong policy considerations favoring the enforcement of freely negotiated choice-of-law clauses" in contracts. Nedlloyd Lines B.V. v. Superior Court ,
As to the first exception, California has a substantial relationship to defendant Google because Google has its principal place of business in California and seeks to apply California law to its sales transactions. See CAC ¶ 161. Courts have reached the same conclusion on nearly identical choice-of-law provisions being applied in nearly the same manner. See Rojas-Lozano v. Google, Inc. ,
Accordingly, the Court GRANTS Google's Motion to Dismiss the express warranty, implied warranty, and fraud claims of Plaintiffs Martorello, Tran, Berry, Jones, and Leone to the extent those claims are premised on Florida, Illinois, Michigan, North Dakota, and Pennsylvania law, respectively. The Court also GRANTS Google's Motion to Dismiss the related state-law statutory claims-namely, Plaintiff Martorello's claim under the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"),
b. Warranty Claims
Plaintiffs assert four sets of warranty claims: (1) breach of express warranty, (2) breach of the implied warranty of merchantability, (3) violation of the California Song-Beverly Consumer Warranty Act, and (4) violation of the federal Magnuson-Moss Warranty Act. Google moves to dismiss all four causes of action. The Court addresses each in turn.
i. Breach of Express Warranty
Plaintiffs bring their first cause of action for breach of express warranty on behalf of a putative nationwide class but do not specify which law governs the claim. CAC ¶ 214. Alternatively, they assert claims for breach of express warranty on behalf of the putative statewide subclasses under the laws of the respective states.
Unlike with Huawei, Plaintiffs do not plead that the Nexus 6P is accompanied by an express written warranty from Google. Rather, Plaintiffs turn to statements that Google made in advertising for the Nexus 6P. In particular, the Google webpage for the Nexus 6P states that charging is "fast-get up to seven hours of use after only ten minutes of charging." CAC ¶ 227.a; RJN, Ex. 1. Plaintiffs also identify two other potentially relevant statements. First, the website also provides that the battery "keeps you talking, texting and apping into the night." CAC ¶ 227.c; RJN, Ex. 1. Along the same lines, a Google presentation contained a statement that "[b]attery life keeps you going all day and into the night." CAC ¶¶ 7, 227.b.
*936According to Plaintiffs, those statements are concrete promises that give rise to Plaintiffs' express warranty claims. Opp'n 21-24. Google responds that none of its statements are sufficiently specific to create an express warranty, and thus the express warranty claims of all Plaintiffs should be dismissed. Google Mot. 5-9. If the express warranty claims are not dismissed on this ground, Google provides various bases applicable to different classes of Plaintiffs. As to all Plaintiffs, Google contends that their allegations do not plausibly plead reliance on Google's advertising statements.
(1) Actionable Misrepresentations
Google does not dispute that an express warranty claim may be based on advertising statements. See Rice v. Sunbeam Prods., Inc. , No. 12-CV-07923-CAS,
Google's statement about "get[ting] up to seven hours of use after only ten minutes of charging" is sufficiently specific and measurable. Most prominently, that statement relies on numerical figures with a set meaning and defines the relationship between them-specifically, if the user charges for "ten minutes," he will be able to use the phone for "up to seven hours." Google counters with a footnote hanging off its "get up to seven hours" statement, which says that "[a]ll battery life claims are approximate and based on an average mixed use profile that includes both usage and standby time." RJN, Ex. 1; see also
Measurability is not defeated by the fact that Google's statement is phrased as assuring "up to" seven hours, but not guaranteeing exactly seven hours. On this point, this case lies closer to Plaintiffs' cited authority than Google's. In the case Google cites, the district court concluded that a car manufacturer did not create an express warranty in advertising language, which stated that the powertrain in its trucks "offers a maximum highway range of up to 680 miles on a single fill-up." Acedo v. DMAX, Ltd. , No. 15-CV-02443-MMM,
In that last respect, this case is analogous to Plaintiffs' cited authority. In In re Toyota Motor Corp. , the warranty "statements convey[ed] that [the] [d]efendants' use of advanced technology in their vehicles...enhances safety."
By contrast, the statements that the Nexus 6P's battery life "keeps you talking, texting and apping into the night" and "keeps you going all day and into the night" are not adequate to create express warranties. For one thing, neither statement discusses what length of time of charging or what level of battery charge is envisioned. Equally important, the references to "into the night" and "all day and into the night" are inexact and do not provide a baseline against which to measure the rest of the statement. Such vague product superiority claims cannot reasonably be interpreted by consumers as reliable factual claims about the battery life and performance of the Nexus 6P. See Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc. ,
The "keeps you talking, texting and apping" and "keeps you going" statements do not constitute express warranties, whether taken individually or collectively. See Elias v. Hewlett-Packard Co. ,
(2) Basis of the Bargain and Reliance
Google next contends that the Court should dismiss the express warranty claims of all Plaintiffs because they do not adequately plead reliance on Google's advertising statements. Google Mot. 6-9. Like with Huawei, the relevant question is whether Plaintiffs must show reliance on the statement or representation for it to be considered part of the "basis of the bargain" under each state's express warranty law.
In particular, authority from each of the pertinent states supports the proposition that, at a minimum, the plaintiff must plead that he was aware of the advertising statements, though some cases state that principle more explicitly than others. See Osborne v. Subaru of Am., Inc. ,
Plaintiffs challenge this conclusion only with respect to California law, arguing that California does not require reliance. Opp'n 24.
Thus, the operative question is whether Plaintiffs have adequately alleged that they became aware of Google's statements by exposure to its advertising. Plaintiffs do not clear that hurdle simply by alleging in a conclusory manner that "Plaintiffs and Class members were exposed to and relied on [Google's above-identified] statements when they decided to buy Nexus 6P Phones" and that "Google's express warranties formed part of the basis of the bargain that was reached when Plaintiffs and Class Members purchased their Phones." CAC ¶ 228. The Court must scrutinize each individual Plaintiff's allegations about exposure to Google's actionable promotional promises. For convenience, the Court groups Plaintiffs by controlling state law.
(a) California
The three California Plaintiffs and the five out-of-state Plaintiffs who purchased from Google (Plaintiffs Martorello, Tran, Berry, Jones, and Leone) are subject to California law. Six of these Plaintiffs-Plaintiffs Makcharoenwoodhi, Gorbatchev, Christensen, Martorello, Berry, and Jones-do not allege that they saw any advertising statements; instead, they merely allege that they purchased the Nexus 6P. CAC ¶¶ 12-51, 70-78, 111-18. The remaining two Plaintiffs plead facts about advertising, but those allegations still are insufficient. Though the CAC alleges that Plaintiff Tran "saw online advertisements representing that the Google Nexus 6P had a superior battery life," id. ¶ 52, it does not identify which advertisements he observed. That fact matters because only one of Google's statements-the "get up to seven hours" statement-is sufficiently specific and measurable at this stage to create an express warranty. As to Plaintiff Leone, the CAC alleges that he "watched the live stream of the Nexus 6P release event in San Francisco and was exposed to Google's representations regarding the Phone at that event," and so he understood that "superior battery life" was a major selling point for the Nexus 6P. Id. ¶ 129. But Plaintiffs do not allege that the "get up to seven hours" statement was made at the launch event; that statement appeared on Google's website. Accordingly, the Court GRANTS Google's Motion to Dismiss the express warranty claims of Plaintiffs Makcharoenwoodhi, Gorbatchev, Christensen, Martorello, Tran, Berry, Jones, and Leone with leave to amend to allege which advertisements they saw.
(b) Indiana
Indiana Plaintiff Beheler's express warranty claim must also be dismissed on this ground. The CAC states that "[t]he Nexus 6P's purportedly long battery life factored heavily into [Plaintiff] Beheler's decision to purchase this Phone." CAC ¶ 59. But the CAC does not present the source of Plaintiff Beheler's view that the Nexus 6P had a long battery life. More precisely, it is not alleged that Plaintiff Beheler received that information from advertising at all, let alone the advertising containing Google's "get up to seven hours" statement. Accordingly, the Court GRANTS Google's Motion to Dismiss the express warranty claim of *940Plaintiff Beheler with leave to amend to allege which advertisements he saw.
(c) New York
The CAC does not allege that New York Plaintiff Davydov saw or relied on the advertising statements identified as the basis for Plaintiffs' express warranty claims. CAC ¶¶ 79-89. Accordingly, the Court GRANTS Google's Motion to Dismiss the express warranty claim of Plaintiff Davydov with leave to amend to allege which advertisements he saw.
(d) North Carolina
Like with New York Plaintiff Davydov, the CAC does not allege that North Carolina Plaintiff Himes saw or relied on the advertising statements identified as the basis for Plaintiffs' express warranty claims. CAC ¶¶ 99-110. The allegations with respect to the other North Carolina Plaintiff, Harrison, are more detailed but still unsatisfactory. Specifically, Plaintiff Harrison's decision to purchase a Nexus 6P was "materially influenced" by her viewing of "advertisements representing that the Nexus 6P's battery life was very good and touting the Nexus 6P as Google's top-of-the-line phone." Id. ¶ 91. Nonetheless, that language does not appear in the advertising containing Google's "get up to seven hours" statement. Nor does the CAC otherwise nail down what particular advertising or statements Plaintiff Harrison encountered. Accordingly, the Court GRANTS Google's Motion to Dismiss the express warranty claims of Plaintiffs Harrison and Himes with leave to amend to allege which advertisements they saw.
(e) Ohio
The CAC does not allege that Ohio Plaintiff Servodio saw or relied on the advertising statements identified as the basis for Plaintiffs' express warranty claims. CAC ¶¶ 119-27. Accordingly, the Court GRANTS Google's Motion to Dismiss the express warranty claim of Plaintiff Servodio with leave to amend to allege which advertisements he saw.
(f) Texas
Like with Ohio Plaintiff Servodio, the CAC does not allege that Texas Plaintiff Poore saw or relied on the advertising statements identified as the basis for Plaintiffs' express warranty claims. CAC ¶¶ 142-51. Accordingly, the Court GRANTS Google's Motion to Dismiss the express warranty claim of Plaintiff Poore with leave to amend to allege which advertisements he saw.
(g) Washington
Finally, the CAC alleges that Washington Plaintiff Johnston's decision to purchase a Nexus 6P was "materially influenced" by his viewing of "television and online advertisements" which "promoted the Phone in part on the basis of its superior battery life." CAC ¶ 153. For many of the same reasons noted above, that allegation is not enough. Because the CAC does not pinpoint which advertisements Plaintiff Johnston has seen, there is no way to tell whether they contained Google's "get up to seven hours" statement, the actionable statement Plaintiffs have identified as a basis for the express warranty claim. Accordingly, the Court GRANTS Google's Motion to Dismiss the express warranty claim of Plaintiff Johnston with leave to amend to allege which advertisements he saw.
In sum, the Court GRANTS Google's Motion to Dismiss Plaintiffs' express warranty claims with leave to amend.
(3) Disclaimer
In its motion to dismiss, Google appears to separately contend that Plaintiffs who purchased from Google-namely, Plaintiffs Gorbatchev, Martorello, Tran, Berry, Jones, and Leone, CAC ¶¶ 19, 38, 52, 70, 111, 130-are barred from pursuing an express warranty claim based on *941Google's disclaimer in its Terms of Sale. Google Mot. 5. Google's terms include a section titled "Defects; Warranties; Disclaimer of Warranties," which states in relevant part: "GOOGLE...EXPRESSLY DISCLAIM[S] ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING ANY DEVICES." To the extent that Google contends that that language overrides Google's advertising statements, Google is incorrect.
California law on limiting warranties provides that "[w]ords or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but...negation or limitation is inoperative to the extent that such construction is unreasonable."
(4) Privity
Google next makes a species of privity argument in favor of dismissing the express warranty claims of all Plaintiffs who did not purchase from Google. Google Mot. 5, 8-9. In particular, Google suggests that it is not covered by the state statutory language requiring an affirmation or promise "made by the seller to the buyer."
(a) California
As a general matter, California law requires privity of contract in an action for breach of express warranty. Burr v. Sherwin Williams Co. ,
In light of these strong statements in the case law, the Court concludes that Plaintiffs' allegations are sufficient to invoke the privity exception with respect to Google. The CAC alleges that Google and Huawei worked together to create the Nexus 6P and that Google developed the software. CAC ¶ 165. Moreover, Google released the phone for pre-order and sold the phone through its own Google Store. Id. ¶¶ 166, 193. Finally, Google made claims about the phone at the launch event, id. ¶ 169, and made specific statements about the phone in advertising on its website, id. ¶ 227. It is of no moment that the examples cited in Burr all involved statements by a manufacturer in labels or advertising material.
(b) Indiana
Although the default rule under Indiana law appears to be that "vertical privity is required for claims of breach of express warranty," Atkinson v. P & G-Clairol, Inc. ,
Under these precedents, the Court concludes that Indiana Plaintiff Beheler's implied warranty claim is not barred by failure to adequately plead privity. Like the manufacturer in Prairie Production , Google here made affirmations about the Nexus 6P in advertising. The Court has already determined that one of those statements was a specific and measurable promise. Even if the CAC does not sufficiently plead that Google is a manufacturer, the rationale of Prairie Production extends to this case. The CAC establishes that Google had significant involvement in the development of the Nexus 6P and advertised the virtues of the phone on its website in statements directed to consumers to induce them to buy the product. CAC ¶¶ 165-66, 169, 193, 227. On these facts, it is proper to discard the privity requirement. Accordingly, this is not an *943appropriate basis on which to dismiss Plaintiff Beheler's express warranty claim.
(5) Notice and Opportunity to Cure
Google's offhand reference to notice in its motion to dismiss does not sufficiently raise the issue for resolution. The sole mention of "notice" is in a statement that "the [California] Plaintiffs do not allege reliance or pre-suit notice, as the law requires." Google Mot. 5. Google's reply is equally unilluminating, stating that the letters of certain Plaintiffs were insufficient to put Google on notice. Google Reply 5. In these filings, Google nowhere indicates what law should apply, provides the relevant contours of the legal landscape, or clearly states which Plaintiffs are affected. Given the potential variances among the states and Plaintiffs (as indicated by the analysis with respect to Huawei), the Court declines to consider Google's bare assertion that notice provides another basis on which to dismiss Plaintiffs' express warranty claims.
ii. Breach of Implied Warranty of Merchantability
Plaintiffs' second cause of action is for breach of the implied warranty of merchantability on behalf of a putative nationwide class under an unspecified law or, alternatively, on behalf of the putative statewide subclasses under the laws of the respective states. CAC ¶¶ 235-36. Plaintiffs' cause of action alleges that Google "impliedly warranted that the Phones were of a merchantable quality" but failed to live up to that guarantee because the Nexus 6Ps "were not in merchantable condition and are not fit for the ordinary purpose for which phones are used." Id. ¶ 239. Google's arguments are split between Plaintiffs who purchased from Google and Plaintiffs who did not. For the former group, Google contends that these Plaintiffs are barred by the explicit disclaimer of the implied warranty of merchantability in its Terms of Sale. Google Mot. 5. For the latter, Google contends that these Plaintiffs have failed to adequately plead privity. Id. at 11-13.
(1) Disclaimer and Unconscionability
Google first contends that the implied warranty claims of Plaintiffs Gorbatchev, Martorello, Tran, Berry, Jones, and Leone-who purchased their Nexus 6Ps from Google, CAC ¶¶ 19, 38, 52, 70, 111, 130-are barred by Google's disclaimer in its Terms of Sale. Google Mot. 5. In relevant part, Google's terms state: "GOOGLE...EXPRESSLY DISCLAIM[S] ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING ANY DEVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY." Plaintiffs argue that there is no evidence about whether Plaintiffs had actual or constructive notice of Google's disclaimer and that, even if they did, the CAC adequately pleads that Google's disclaimer is unconscionable. Opp'n 27-29. Neither argument is persuasive.
First, Plaintiffs suggest that Google has not carried its burden of establishing that the affirmative defense of disclaimer applies. Id. at 27-28. But Google's submission of its Terms of Sale demonstrates a valid disclaimer, and Plaintiffs have not identified any allegation in the CAC that undercuts its application to this set of Plaintiffs. Under California law, a written disclaimer of the implied warranty of merchantability must mention merchantability and be conspicuous.
Plaintiffs attempt to overcome this conclusion by challenging whether Plaintiffs had actual or constructive knowledge of Google's disclaimer. Opp'n 27. Plaintiffs point out that a disclaimer is valid only if "the buyer has knowledge or is chargeable with notice of the disclaimer before the bargain is complete." Burr ,
Second, Plaintiffs contend that, even if the disclaimer is binding, the CAC adequately pleads that the disclaimer is unconscionable. As explained earlier, under California law, a contract provision is "unconscionable, and therefore unenforceable, only if it is both procedurally and substantively unconscionable." In re iPhone ,
*945Plaintiffs' procedural unconscionability argument is, at best, weak. They contend that the disclaimer is unconscionable because Google and its customers are in an unequal bargaining position and because Google had "exclusive knowledge of the Defects and true quality of the Phones." CAC ¶ 261. On the latter point, the Court has already concluded that Plaintiffs' allegations are insufficient. That conclusion significantly weakens the former point that Google had superior bargaining power. See In re Sony Grand Wega ,
Plaintiffs make no further allegations to support their claim of substantive unconscionability. Plaintiffs repeat and reemphasize that Google knew of and concealed the defects at the time that it sold the Nexus 6Ps. Opp'n 28-29; CAC ¶ 245 ("Google knowingly sold a defective product without disclosing the Defects, while affirmatively misrepresenting purported attributes of the product that were important to consumer purchasers."). Again, Plaintiffs' allegations are insufficient to establish that conclusion. In their opposition, Plaintiffs also slightly change course from their complaint, asserting that a disclaimer may be substantively unconscionable any time a product is unfit for its intended use. Opp'n 29 (citing the statement in Clark ,
Based on the allegations in the CAC, Google's disclaimer is not unconscionable, and the disclaimer is enforceable. Accordingly, Plaintiffs have not stated a claim for breach of the implied warranty of merchantability for express warranty for Plaintiffs Gorbatchev, Martorello, Tran, Berry, Jones, and Leone. The Court GRANTS Google's Motion to Dismiss the implied warranty claim of Plaintiffs Gorbatchev, Martorello, Tran, Berry, Jones, and Leone with leave to amend to allege further facts in support of Plaintiffs' lack of notice and unconscionability arguments.
(2) Privity
For the remaining Plaintiffs who did not purchase from Google-namely, Plaintiffs Makcharoenwoodhi, Christensen, Beheler, Davydov, Harrison, Himes, Servodio, Poore, and Johnston, CAC ¶¶ 12, 28, 58, 79, 91, 99, 119, 142, 153-Google argues that their claims must be dismissed for failure to plead privity. Google Mot. 11-13. Even for the states that do not require a strict showing of privity, Google draws on the common-sense notion that, because an implied warranty of merchantability is "implied in a contract for the[ ] sale [of goods] if the seller is a merchant with respect to goods of that kind," UCC § 2-314(1), a defendant cannot be liable unless it has sold the goods in question. Google *946Mot. 11. Plaintiffs' central response is that Plaintiffs' claims may be sustained under the third-party beneficiary exception to the privity requirement. Opp'n 31-33.
Most of the relevant states require privity of contract to state a claim for breach of the implied warranty of merchantability. See, e.g. , Clemens ,
Even for the states that have abandoned the privity requirement for implied warranty claims, see, e.g. , Pack ,
Plaintiffs attempt to steer around these roadblocks by resort to the third-party beneficiary exception to the privity requirement. CAC ¶ 242; Opp'n 31-33. As noted above, the third-party beneficiary exception allows a plaintiff to enforce a contract made expressly for his or her benefit. See
Plaintiffs identify no agreement that Google has entered into for Plaintiffs' benefit. Specifically, Plaintiffs plead that they "are the intended third-party beneficiaries of the implied warranties and other contracts between Defendants and the retailers who sell the Phones." CAC ¶ 242. Even shelving the ever-persisting issue of lumping Google with Huawei, Plaintiffs do not plead that Google had contracts to sell the Nexus 6P to retailers, such as Best Buy, Newegg, and Amazon. The sole agreement that Plaintiffs identify is Huawei's Limited Warranty. Opp'n 33. But Plaintiffs cannot *947use that warranty to bootstrap Google's liability without an accompanying allegation that Huawei's Limited Warranty was an agreement with Google to benefit customers. Because Plaintiffs have not done so, they have not pleaded sufficient facts to make use of the third-party beneficiary exception.
Accordingly, the Court GRANTS Google's Motion to dismiss the implied warranty of merchantability claims of Plaintiffs Makcharoenwoodhi, Christensen, Beheler, Davydov, Harrison, Himes, Servodio, Poore, and Johnston with leave to amend to allege further facts about a privity relationship or an agreement between Google and a third-party that is intended for the benefit of these Plaintiffs.
iii. Song-Beverly Consumer Warranty Act
The California Plaintiffs assert a cause of action under the Song-Beverly Act,
(1) Manufacturer or Retail Seller
Google first contends that Plaintiffs Makcharoenwoodhi and Christensen's claims fail because they did not purchase from Google. The Song-Beverly Act generates an implied warranty of merchantability by manufacturers and retail sellers.
Based on the CAC's present allegations, Google is neither a "manufacturer" nor a "retail seller" with respect to Plaintiffs Makcharoenwoodhi and Christensen. A "manufacturer" is "any individual, partnership, corporation, association, or other legal relationship that manufactures, assembles, or produces consumer goods."
Nor does the CAC provide that Google is a "retail seller" as to Plaintiffs Makcharoenwoodhi and Christensen. A "retail seller" is "any individual, partnership, corporation, association, or other legal relationship that engages in the business of selling or leasing consumer goods to retail buyers."
Accordingly, the Court GRANTS Google's Motion to Dismiss the Song-Beverly Act claims of Plaintiffs Makcharoenwoodhi and Christensen with leave to amend to allege further facts about whether Google qualifies as a "manufacturer" or "retail seller."
(2) Merchantability
Google next challenges the sufficiency of the allegations as to the unmerchantability of Plaintiff Gorbatchev's Nexus 6P. Google Mot. 14. The implied warranty of merchantability guarantees that the goods meet "a minimum level of quality." Am. Suzuki ,
The allegations with respect to Plaintiff Gorbatchev's Nexus 6P meet these requirements. The CAC first alleges that "[d]uring his first few months of owning the Phone, [Plaintiff] Gorbatchev regularly experienced incidents in which it would suddenly shut down and restart without warning, sometimes on a daily basis." CAC ¶ 20. The CAC then goes on to say that, on March 17, 2017, Plaintiff Gorbatchev's phone exhibited the Bootloop Defect. While Plaintiff Gorbatchev was trying to call an Uber, his phone froze and restarted, then cycled through this process for the rest of the day without ever proceeding beyond the Google logo screen. Id. ¶ 21. As the CAC explains, Plaintiff "Gorbatchev's Phone never proceeded past the Google logo screen again." Id. ¶ 24. These circumstances clearly demonstrate that Plaintiff Gorbatchev's Nexus 6P was unfit for ordinary use. After the Bootloop Defect manifested, Plaintiff Gorbatchev could not use any of the basic functions of his phone, such as placing calls, sending texts, or using apps. Id. ¶ 175. Accordingly, failure to plead unmerchantability is not an appropriate basis on which to dismiss the express warranty claim of Plaintiff Gorbatchev.
(3) Location of Purchases
As discussed above with respect to Huawei, the California Plaintiffs' Song-Beverly Act claim must be dismissed because Plaintiffs have failed to allege the necessary element of whether the phone purchases took place in California. Accordingly, the Court GRANTS Google's Motion to Dismiss the Song-Beverly Act claim with leave to amend to assert where the phone purchases took place.
iv. Magnuson-Moss Warranty Act
Plaintiffs' third cause of action alleges violations of the Magnuson-Moss Warranty Act,
*949Clemens ,
The Court has dismissed all of the express and implied warranty claims against Google. Accordingly, the Court GRANTS Google's Motion to Dismiss the Magnuson-Moss Warranty Act claims of all Plaintiffs with leave to amend.
c. Fraud and Deceptive Practices Claims
Plaintiffs assert a common-law claim for deceit and fraudulent concealment and fraud claims under various state statutes. The Court first addresses the common-law claim, then analyzes each of the remaining state statutory claims.
i. Deceit and Fraudulent Concealment
Plaintiffs assert a cause of action for deceit and fraudulent concealment on behalf of each of the twelve statewide subclasses. CAC ¶ 269. As reflected both in the CAC and Plaintiffs' opposition, every state-law claim is premised on the allegation that Google "concealed and suppressed material facts" regarding the Nexus 6P because Google "knew (or in the exercise of reasonable diligence should have known) of the Defects, but failed to disclose them prior to or at the time [it] marketed Phones and sold them to consumers." Id. ¶ 270; Opp'n 50. For the reasons already stated, the CAC does not sufficiently plead that Google had knowledge of the Bootloop or Battery Drain Defect at the time that Plaintiffs acquired their Nexus 6Ps. Accordingly, the Court GRANTS Google's Motion to Dismiss the deceit and fraudulent concealment claims with leave to amend to allege further facts in support of Google's knowledge.
ii. California Consumers Legal Remedies Act
The California Plaintiffs bring a claim under the CLRA,
(1) Procedural Ground
Courts must dismiss without prejudice CLRA claims that are unaccompanied by "an affidavit stating facts showing that the action has been commenced in a county described in this section as a proper place for the trial of the action."
(2) Substantive Grounds
The CLRA proscribes "unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or that results *950in the sale...of goods or services to any consumer."
The Court also briefly addresses Google's other arguments that neither the fraudulent omissions theory nor the affirmative misrepresentation theory is well-pled. Google Mot. 16-17.
(a) Fraudulent Omissions
Plaintiffs' fraudulent omissions theory avers that "Defendants had a duty to disclose the Defects because Huawei and Google had exclusive knowledge of the Defects prior to making sales of Phones and because Defendants made partial representations about the quality of the Phones, but failed to fully disclose the Defects." CAC ¶ 319. As the Court noted earlier, "[t]o state a claim for failing to disclose a defect, a party must allege...the existence of an unreasonable safety hazard." Williams ,
(b) Affirmative Misrepresentation
Plaintiffs' affirmative misrepresentation theory avers that Google made false statements about the Nexus 6P even though Google was aware that the phones were suffering from the Bootloop and Battery Drain Defects. CAC ¶ 322. Plaintiffs point to the same three statements that the Court analyzed above for Plaintiffs' express warranty claims-namely, the "get up to seven hours" statement, the "keeps you talking, texting and apping" statement, and the "keeps you going" statement. Id. ¶ 321. Although Google asserts that these three statements are not actionable, Google Mot. 16, the standard under the CLRA is identical to the standard for an express warranty. See Azoulai ,
Google's meatier-and ultimately meritorious-challenge is that Plaintiffs fail to sufficiently allege that they relied on Google's misrepresentation. Under the CLRA, a plaintiff must allege that he relied on the defendant's alleged misrepresentations and that he suffered injury as a result. See Sateriale v. R.J. Reynolds Tobacco Co. ,
Plaintiffs do not come close to fulfilling that high burden here. The CAC does not allege that any of the California Plaintiffs saw any advertising about the Nexus 6P at all, let alone that they saw and relied upon Google's "get up to seven hours" statement. CAC ¶¶ 12-37. Generally, Rule 9(b) requires that a plaintiff plead "an account of the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations." Swartz v. KPMG LLP ,
iii. California Unfair Competition & False Advertising Laws
The California Plaintiffs assert claims under the UCL,
(1) Entitlement to Equitable Relief
The only forms of relief that a private individual may pursue under the UCL and FAL are the equitable remedies of restitution and injunctive relief. Korea Supply Co. ,
(a) Standing to Seek Injunctive Relief
Google challenges the California Plaintiffs' Article III standing to seek injunctive relief. Google Mot. 21. After briefing on Google's Motion to Dismiss was complete, the Ninth Circuit issued a decision bearing on the question. In Davidson v. Kimberly-Clark Corp. ,
The Ninth Circuit reversed. The court resolved the open question whether a "previously deceived consumer who brings a false advertising claim can allege that her inability to rely on the advertising in the future is an injury sufficient to grant her Article III standing to seek injunctive relief."
In some cases, the threat of future harm may be the consumer's plausible allegations that she will be unable to rely on the product's advertising or labeling in the future, and so will not purchase the product although she would like to. In other cases, the threat of future harm may be the consumer's plausible allegations that she might purchase the product in the future, despite the fact it was once marred by false advertising or labeling, as she may reasonably, but incorrectly, assume the product was improved.
Without the benefit of the Ninth Circuit's guidance in Davidson , it will come as no surprise that Plaintiffs' allegations are deficient. The CAC does not fit either of the two scenarios countenanced by the Ninth Circuit because there is no pleading that the California Plaintiffs would like to purchase in the future but cannot trust Google's advertising or that the California Plaintiffs might purchase in the future on the belief that the product has been improved. See CAC ¶¶ 12-37, 297-308, 332-39. Plaintiffs' opposition even concedes that their allegations are lacking on the latter point. Opp'n 49. Because Davidson was unavailable at the time that Plaintiffs were drafting their CAC and writing their opposition, they also have not presented any other theory about how they "suffer[ed] an 'actual and imminent, not conjectural or hypothetical' threat of future harm."
Accordingly, the Court GRANTS Google's Motion to Dismiss the California Plaintiffs' claims for injunctive relief with leave to amend to allege further facts about Plaintiffs' non-speculative threat of future harm.
(b) Entitlement to Restitution
Google contends that Plaintiffs Makcharoenwoodhi and Christensen, who did not purchase from Google, have not adequately pled entitlement to restitution because the CAC does not allege that money or property in which they have a vested interest is in Google's possession. Google Mot. 21. "[I]n appropriate circumstances, the plaintiff in a UCL action may obtain restitution from a defendant with whom the plaintiff did not deal directly." Shersher v. Superior Court ,
These standards compel dismissal of Plaintiffs Makcharoenwoodhi and Christensen's claims for restitution. The allegations as to Plaintiff Christensen clearly fall flat. The CAC alleges that Plaintiff Christensen purchased his Nexus 6P directly from Huawei. CAC ¶ 28. The CAC makes no further effort to identify how that money came into Google's possession as a result of Plaintiff Christensen's purchase. The allegations as to Plaintiff Makcharoenwoodhi come closer but do not warrant a different conclusion. According to the CAC, Plaintiff Makcharoenwoodhi purchased his Nexus 6P from Best Buy. Id. ¶ 12. Google is alleged to have a connection with Best Buy, as the CAC states that "Defendants sell the Phones to consumers...through authorized retailers, including...Best Buy." Id. ¶ 168. While it may be plausible to infer that a plaintiff's money ends up in the defendant's possession when the plaintiff buys the defendant's product from the defendant's retailer, see Shersher ,
Accordingly, the Court GRANTS Google's Motion to Dismiss Plaintiffs Makcharoenwoodhi and Christensen's claims for restitution with leave to amend to allege further facts about how their money came into Google's possession.
(c) Adequate Remedy at Law
Google's final, and broadest, contention is that Plaintiffs cannot seek equitable remedies because they have available an adequate remedy at law-namely, compensatory damages for the same alleged conduct. Google Mot. 20. Of course, it is axiomatic that a plaintiff seeking equitable relief must establish that he has no adequate legal remedy. Philpott v. Superior Court ,
In addition to retrospective relief for injuries already suffered, Plaintiffs seek to "enjoin [Google] from continuing [its] unfair, unlawful, and fraudulent practices." CAC ¶ 308. That injunctive relief is asserted on behalf of the class and, if granted, would accrue to the benefit of the public at large. See id. ¶¶ 208(h) (requesting injunctive relief for Plaintiffs and class members), 212 ("Defendants have acted or refused to act on grounds generally applicable to Plaintiffs and Class members, making final injunctive relief...appropriate with respect to the Class as a whole."). In this way, the injunctive relief could provide a remedy above and beyond a legal award of damages. See
Accordingly, the Court the Court GRANTS Google's Motion to Dismiss the California Plaintiffs' UCL and FAL claims with leave to amend to allege further facts about Plaintiffs' standing to seek injunctive relief.
(2) UCL
Having considered the arguments applicable to both the UCL and FAL claims, the Court next addresses the UCL claim. As noted above, the UCL provides three distinct grounds for liability: a business practice cannot be (1) unlawful, (2) unfair, or (3) fraudulent. See
(a) Unlawful Business Act or Practice
Plaintiffs predicate their claim under the "unlawful" prong on Google's alleged violations of the Magnuson-Moss Warranty Act, the Song-Beverly Act, the CLRA, and the FAL and on Google's breach of express and implied warranty, fraudulent concealment, and unjust enrichment. CAC ¶ 300. The UCL "borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable." Wilson ,
(b) Unfair Business Act or Practice
The "unfair" prong of the UCL creates a cause of action that is not limited to business practices that are proscribed by some other law. Korea Supply Co. ,
Like with Huawei, Plaintiffs' allegation that Google has engaged in a "practice of selling defective phones without providing an adequate remedy to cure the Defects," CAC ¶ 302, fails under any test. Plaintiffs point to five aspects of "Defendants" Google and Huawei's conduct: (1) knowingly sold defective phones, (2) refused to repair or replace phones when the defects manifested *955outside the warranty period, (3) avoided providing warranty service by blaming minor cosmetic issues, (4) had long wait periods on warranty claims, and (5) provided replacement phones that were also defective. Id. ¶ 301. Again, due to the melding of Google and Huawei under the heading of "Defendants," the Court must strive to unravel which actions the CAC attributes solely to Google.
For the same reasons discussed with respect to Huawei, grounds (1) and (2)-alleging knowledge of the defects and unwillingness to fix out-of-warranty phones-are unsustainable. Ground (3) is even weaker with respect to Google. No California Plaintiff alleges that Google denied warranty coverage by pointing to cosmetic damage. CAC ¶¶ 12-37. Although Pennsylvania Plaintiff Leone pleads that Google rejected warranty coverage based on "screen scratches, dents in the metal frame, [and] cracked rear glass," id. ¶¶ 133-34, that allegation-even if relevant for a California claim under California law-does not show that Google's practice was to turn down warranty coverage on these grounds. Ground (4) is inapplicable to Google because the allegations about long wait times for warranty claims all relate to Huawei. See id. ¶¶ 65, 85, 122, 156. Finally, the CAC accuses Google of providing some non-California Plaintiffs with defective replacement phones. Id. ¶¶ 49, 75, 113-14, 136. No California Plaintiff was allegedly affected by this conduct, and Plaintiffs provide no argument that such an inference is reasonable based on the allegations. Moreover, Plaintiffs do not identify any authority holding that a defendant who provides a defective product on more than one occasion has committed an unfair business practice. Hence, none of Plaintiffs' five asserted aspects of Google's conduct withstands scrutiny at the motion to dismiss stage.
Plaintiffs' argument that Google's conduct violates the Song-Beverly Act's policy of preventing unmerchantable products from reaching consumers, id. ¶ 301, fares no better. As noted with respect to Huawei, Plaintiffs' conception of the Song-Beverly Act's purpose improperly extends beyond California state lines. See
Accordingly, the Court GRANTS Google's Motion to Dismiss Plaintiffs' UCL claim under the unfair prong with leave to amend to allege relevant facts.
(c) Fraudulent Business Act or Practice
The analysis with respect to Google and Huawei under the UCL fraud prong is identical because the CAC depends on the same three fraudulent acts for both companies. See CAC ¶ 303. As Plaintiffs' opposition admits, Opp'n 40, all three acts take as a given Google's knowledge of the defects at the time of sale to the California Plaintiffs. The Court has previously explained at length that Plaintiffs have not adequately alleged that Google had knowledge of the defects when the California Plaintiffs purchased their phones. Accordingly, the Court GRANTS Google's Motion to Dismiss Plaintiffs' UCL claim under the fraud prong with leave to amend to allege that Google had knowledge of the defects at the time that the California Plaintiffs purchased their phones.
(2) False Advertising Law
The disposition on Plaintiffs' FAL claim requires little explanation because the *956analysis is substantively identical to that under the UCL fraud prong. Indeed, this Court and other courts in this district have treated FAL claims together with the UCL fraud prong, Singh v. Google Inc. , No. 16-CV-03734-BLF,
iv. Indiana Deceptive Consumer Sales Act
Indiana Plaintiff Beheler asserts a claim under the Indiana Deceptive Consumer Sales Act ("IDCSA"),
Plaintiffs do not challenge that Rule 9(b)'s heightened pleading standard applies, but instead argue that their allegations satisfy that standard. Opp'n 54-55. Plaintiffs are incorrect. The CAC states that "[t]he Nexus 6P's purportedly long battery life factored heavily into [Plaintiff] Beheler's decision to purchase this Phone," CAC ¶ 59, but does not indicate whether Plaintiff Beheler received this information from Google's advertising or came upon it by some other means, such as word of mouth from a friend or a technical review written by another company. This is insufficient to support Plaintiffs' contention that Plaintiff Beheler "saw and relied upon Google's advertising of long battery life." Opp'n 55. Accordingly, the Court GRANTS Google's Motion to Dismiss Plaintiff Beheler's IDCSA claim with leave to amend to specify the advertisements and the content of the advertisements that Plaintiff Beheler relied upon in purchasing his Nexus 6P.
v. New York General Business Law
New York Plaintiff Davydov asserts claims under
Based on the CAC's lumping together of Google and Huawei, Plaintiff Davydov's allegations here do not clear that hurdle. To be sure, other cases have allowed claims under §§ 349 and 350 to proceed past a motion to dismiss on relatively thin allegations. For example, in Dash v. Seagate Technology (U.S.) Holdings, Inc. , the court concluded that there was a reasonable inference that the plaintiff purchased the product at issue as a result of seeing the misleading statements where the plaintiff "describe[d] in detail the allegedly misleading and deceptive statements contained on the [product's] packaging upon which he relied in purchasing the product."
The allegations here superficially fit that mold. The CAC first details the allegedly misleading statements by Google. CAC ¶ 227. Then, the CAC alleges that "[i]n purchasing Phones, [Plaintiff] Davydov...relied on the misrepresentations and/or omissions of Defendants with respect to the quality, functionality, and performance of the Phones" and that Plaintiff Davydov would not have purchased the phone in the absence of those misrepresentations. Id. ¶ 430. The problem is that, by referring to the Google and Huawei together without denoting particular statements, there is no assurance that Plaintiff Davydov relied on Google's allegedly misleading statements in purchasing his Nexus 6P. Without more, it is not plausible that Plaintiff Davydov saw every relevant misrepresentation made by Google. Accordingly, the Court GRANTS Google's Motion to Dismiss Plaintiff Davydov's
vi. North Carolina Unfair and Deceptive Trade Practices Act
North Carolina Plaintiffs Harrison and Himes assert a claim under the North Carolina Unfair and Deceptive Trade Practices Act ("NCUDTPA"),
As to "unfair" acts, the alleged actions pertain to Huawei and appear to include Google only by the misleading use of the cover term "Defendants." Not only do the CAC's allegations fail to plausibly plead that Google had knowledge at the time of sale, but the CAC admits that Google did not sell to Plaintiffs Harrison and Himes at all-they purchased their phones from Amazon and Best Buy, respectively.
As to "deceptive" acts, the CAC looks to Google's advertising statements. The North Carolina Supreme Court has instructed that "a claim under section 75-1.1 stemming from an alleged misrepresentation does indeed require a plaintiff to demonstrate reliance on the misrepresentation in order to show the necessary proximate cause." Bumpers v. Cmty. Bank of N. Va. ,
Accordingly, the Court GRANTS Google's Motion to Dismiss the NCUDTPA claim of Plaintiffs Harrison and Himes with leave to amend to allege further facts.
vii. Ohio Deceptive Trade Practices Act
Ohio Plaintiff Servodio asserts a claim under the ODTPA on behalf of the Ohio subclass. CAC ¶¶ 461-75. As discussed above with respect to Huawei, this claim must be dismissed without leave to amend because, as a legal matter, consumers lack standing to sue under the ODTPA. Accordingly, the Court GRANTS WITHOUT LEAVE TO AMEND Google's Motion to Dismiss the ODTPA claim.
viii. Ohio Consumer Sales Practices Act
Ohio Plaintiff Servodio asserts a claim under the Ohio Consumer Sales Practices Act ("OCSPA"), Ohio Rev. Code § 1345.01 et seq. , on behalf of the Ohio subclass. CAC ¶¶ 476-87. The OCSPA provides a private right of action to consumers for "unfair or deceptive act[s] or practice[s] in connection with a consumer transaction."
Plaintiffs do not adequately allege that Google was put on notice by an Ohio court decision. The bare allegation that "Defendants acted in the face of prior notice that their conduct was deceptive, unfair, or unconscionable" does not satisfy Plaintiffs' burden. CAC ¶ 482. More importantly, Plaintiffs do not identify any cases where, for example, a court has held that selling a defective product constitutes a deceptive act under the OCSPA. Rather, as the CAC admits, the cases cited therein stand for the proposition that "failing to honor express *959and implied warranties violates the OCSPA."
Although the Court agrees with Google on the substance of its argument, the Court parts ways with Google as to the remedy. Google suggests that dismissal of Plaintiff Servodio's OCSPA claim is appropriate. Google Mot. 27. But the cases do not support that view. The principal authority on which Google relies, the Ohio Supreme Court decision in Marrone , concerns the prerequisites for "a consumer [to] qualify for class-action certification under [the OCSPA]."
Accordingly, the Court GRANTS Google's Motion to Dismiss Plaintiff Servodio's OCSPA class claims with leave to amend to allege further facts about whether Google was on notice that its conduct violated the OCSPA, but DENIES Google's Motion to Dismiss Plaintiff Servodio's individual OCSPA claim.
ix. Texas Deceptive Trade Practices Act
Texas Plaintiff Poore asserts a claim under the Texas Deceptive Trade Practices Act ("TDTPA"), Tex. Bus. & Com. Code § 17.41 et seq. , on behalf of the Texas subclass. CAC ¶¶ 501-17. A consumer may bring an action under the TDTPA when the defendant employs a deceptive act or practice enumerated in Tex. Bus. & Com. Code § 17.46(b) that is a "producing cause" of the consumer's economic damages. Tex. Bus. & Com. Code § 17.50(a)(1). Although the CAC lists violations of multiple subsections of § 17.46(b), CAC ¶ 509, Plaintiffs' opposition confirms that its claim is that Google ran afoul of § 17.46(b)(24), Opp'n 53. That subsection proscribes "failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed." Tex. Bus. & Com. Code § 17.46(b)(24).
With the Plaintiffs' claim limited to this subsection, the TDTPA claim fails for familiar reasons. Google cannot violate § 17.46(b)(24) unless Google "fail[ed] to disclose information...which was known at the time of the transaction." As even the most cursory reader will have gleaned by this point, Plaintiffs have not adequately pled that Google had knowledge of the defects at the time that Plaintiff Poore purchased his Nexus 6P. Therefore, Plaintiffs' allegations do not establish that Plaintiff Poore is entitled to relief on the TDTPA claim.
Google's fallback argument that Plaintiff Poore did not provide the required pre-suit notice, Google Mot. 28, is unavailing. Google appears to have overlooked Plaintiffs' allegation that "[o]n or about April 19, *9602017, [Plaintiff] Poore notified Defendants of the damage and Defect in his Phone in satisfaction of Tex. Bus. & Com. Code § 17.505." CAC ¶ 517. Google concedes this point in its reply. Google Reply 18.
Accordingly, the Court GRANTS Google's Motion to Dismiss Plaintiff Poore's TDTPA claim with leave to amend to allege that Google had knowledge of the defects at the time that he purchased his phone.
x. Washington Consumer Protection Act
Washington Plaintiff Johnston asserts a claim under the Washington Consumer Protection Act ("WCPA"),
The CAC alleges that Google engaged in "unfair" and "deceptive" acts in nearly the same fashion as the now-dismissed NCUDTPA claim. Plaintiff Johnston's WCPA claim falters on the same grounds. First, the CAC states that Google's acts were "unfair" because "Defendants knowingly sold [Plaintiff] Johnston and Washington Subclass members Phones with the Defects, refused to honor warranties, required consumers to wait several weeks to several months on warranty claims, and replaced Phones under warranty with other defective Phones." CAC ¶ 522. Google did not do any of those things with respect to Plaintiff Johnston, who bought his Nexus 6P from Best Buy and did not submit a warranty claim to Google.
Accordingly, the Court GRANTS Google's Motion to Dismiss Plaintiff Johnston's WCPA claim with leave to amend to allege further facts.
d. Unjust Enrichment Claim
Plaintiffs assert a cause of action for unjust enrichment. CAC ¶¶ 278-83. As discussed above with respect to Huawei, although a claim alleging unjust enrichment may state a claim for relief as a quasi-contract claim for restitution, Romero ,
C. Motions to Strike
Huawei and Google both move to strike Plaintiffs' class allegations under Federal Rule of Civil Procedure 12(f). Huawei Mot. 26-28; Google Mot. 29. "There is a split in this District as to whether a motion to strike class action allegations may be entertained at the motion to dismiss stage." Ogola v. Chevron Corp. , No. 14-CV-00173-SC,
Huawei and Google contend that the putative nationwide class and the statewide subclasses are facially overbroad because they include individuals who never experienced problems with their Nexus 6Ps. Huawei Mot. 26-27; Google Mot. 29. Moreover, Huawei and Google assert that a class action will be unmanageable because the suit requires adjudicating various claims under differing state laws and resolving individualized inquiries. Huawei Mot. 27-28; Google Mot. 29.
Although these concerns are not without merit, Huawei's and Google's arguments are more appropriately addressed at a later stage of the proceedings when the issues have been more fully developed and sharpened. At the hearing, the Court indicated its inclination to defer these issues to the class certification stage. The Court remains convinced that it would be premature to resolve the issues at the pleading stage. See Los Gatos Mercantile, Inc v. E.I. DuPont De Nemours & Co. , No. 13-CV-01180-BLF,
Accordingly, the Court DENIES Huawei's and Google's motions to strike class allegations without prejudice to raising the arguments presented in those motions at a later stage of the proceedings.
IV. ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that Huawei's and Google's Motions to Dismiss are GRANTED WITH LEAVE TO AMEND IN PART, GRANTED WITHOUT LEAVE TO AMEND IN PART, AND DENIED IN PART. Specifically, with respect to Huawei, the Court rules as follows:
• The Court GRANTS WITH LEAVE TO AMEND Huawei's Motion to Dismiss the express warranty claims of Plaintiffs Gorbatchev, Christensen, Martorello, Tran, Berry, Davydov, Harrison, Himes, Jones, Leone, and Poore and DENIES Huawei's Motion to Dismiss the express warranty claims of all remaining Plaintiffs.
• The Court GRANTS WITH LEAVE TO AMEND Huawei's Motion to Dismiss the implied warranty claims of Plaintiffs Berry and Poore and DENIES Huawei's Motion to Dismiss the implied warranty claims of all remaining Plaintiffs.
• The Court GRANTS WITH LEAVE TO AMEND Huawei's Motion to Dismiss the California Plaintiffs' Song-Beverly Act claim.
• The Court GRANTS WITH LEAVE TO AMEND Huawei's Motion to Dismiss the Magnuson-Moss Warranty Act claims of Plaintiffs Berry and Poore and DENIES Huawei's Motion to Dismiss the Magnuson-Moss Warranty Act claims of all remaining Plaintiffs.
• The Court GRANTS WITH LEAVE TO AMEND Huawei's Motion to Dismiss Plaintiffs' fraud claims to the extent they are based on a fraudulent omissions theory.
• The Court GRANTS WITH LEAVE TO AMEND Huawei's Motion to Dismiss the California Plaintiffs' CLRA claim.
• The Court GRANTS WITH LEAVE TO AMEND Huawei's Motion to Dismiss the California Plaintiffs' UCL claim under the unfair and fraudulent prongs and DENIES Huawei's Motion to Dismiss the California Plaintiffs' UCL claim under the unlawful prong.
• The Court GRANTS WITH LEAVE TO AMEND Huawei's Motion to *962Dismiss the California Plaintiffs' FAL claim.
• The Court GRANTS WITHOUT LEAVE TO AMEND Huawei's Motion to Dismiss Ohio Plaintiff Servodio's ODTPA claim.
• The Court GRANTS WITH LEAVE TO AMEND Huawei's Motion to Dismiss the unjust enrichment claims of all Plaintiffs.
Specifically, with respect to Google, the Court rules as follows:
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss the express warranty claims of all Plaintiffs.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss the implied warranty claims of all Plaintiffs.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss the California Plaintiffs' Song-Beverly Act claim.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss the Magnuson-Moss Warranty Act claims of all Plaintiffs.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss the deceit and fraudulent concealment claims of all Plaintiffs.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss the California Plaintiffs' CLRA claim.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss the California Plaintiffs' UCL claim.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss the California Plaintiffs' FAL claim.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss Florida Plaintiff Martorello's FDUTPA claim.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss Illinois Plaintiff Tran's ICFDBPA and IUDTPA claims.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss Indiana Plaintiff Beheler's IDCSA claim.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss Michigan Plaintiff Berry's MCPA claim.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss New York Plaintiff Davydov's claims underN.Y. Gen. Bus. Law §§ 349 - 350.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss North Carolina Plaintiffs Harrison and Himes's NCUDTPA claims.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss North Dakota Plaintiff Jones's NDCFA claim.
• The Court GRANTS WITHOUT LEAVE TO AMEND Google's Motion to Dismiss Ohio Plaintiff Servodio's ODTPA claim.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss Ohio Plaintiff Servodio's OCSPA class claims and DENIES Google's Motion to Dismiss Ohio Plaintiff Servodio's individual OCSPA claim.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss Pennsylvania Plaintiff Leone's PUTPCPL claim.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss Texas Plaintiff Poore's TDTPA claim.
*963• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss Washington Plaintiff Johnston's WCPA claim.
• The Court GRANTS WITH LEAVE TO AMEND Google's Motion to Dismiss the unjust enrichment claims of all Plaintiffs.
Finally, with respect to Huawei and Google, the Court DENIES their motions to strike Plaintiffs' class allegations.
An amended complaint shall be filed on or before June 8, 2018. Plaintiffs may request additional time, if needed, to accommodate the jurisdictional discovery schedule set forth in a separate order.
Specifically, the state consumer protection statutes are: the California Unfair Competition Law, the California Consumer Legal Remedies Act, the California False Advertising Law, the Florida Deceptive and Unfair Trade Practices Act, the Illinois Consumer Fraud and Deceptive Business Practices Act, the Illinois Uniform Deceptive Trade Practices Act, the Indiana Deceptive Consumer Sales Act, the Michigan Consumer Protection Act, New York General Business Law §§ 349 -350, the North Carolina Unfair and Deceptive Trade Practices Act, the North Dakota Consumer Fraud Act, the Ohio Deceptive Trade Practices Act, the Ohio Consumer Sales Practices Act, the Pennsylvania Unfair Trade Practices and Consumer Protection Law, the Texas Deceptive Trade Practices Act, and the Washington Consumer Protection Act.
For the breach of express warranty and breach of implied warranty claims, Plaintiffs alternatively assert that the claims may proceed under the applicable state law as to each of the twelve statewide subclasses. CAC ¶¶ 215, 236.
The parties are advised that in future briefing, to the extent they ask the Court to decide matters on the basis of several states' laws, they should be mindful of, and squarely address, whether there are material variations in state law. Cf. In re Hyundai and Kia Fuel Economy Litig. ,
The Court finds it unnecessary at this stage to address Plaintiffs' contention that Huawei's Limited Warranty fails of its essential purpose, Opp'n 19-21, because that does not appear to be a ground on which Huawei argues for dismissal of Plaintiffs' express warranty claims.
Huawei makes an argument in its Motion to Dismiss that the Song-Beverly Act requires that the plaintiff deliver a defective product to the manufacturer for repair within the express warranty coverage period. Huawei Mot. 17-18. Plaintiffs respond that the provision Huawei cites is applicable only to assistive devices for disabled persons. Opp'n 36. Huawei does not repeat the argument in its reply. Huawei Reply 13.
Huawei also claims a separate notice issue with respect to Plaintiffs' Magnuson-Moss Warranty Act claims but fails to fully develop the point or explain how the argument differs from the notice arguments under state law. Huawei Mot. 18.
Plaintiffs separately point to the allegations by Ohio Plaintiff Servodio. Even if those allegations could be relevant for a California claim under California law, they state only that Huawei noted a small dent in the side of his phone and determined that his phone was ineligible for warranty coverage, not that Huawei denied coverage because of the dent. Id. ¶¶ 122, 124.
Plaintiffs also point to a representation at the 2015 launch event by Google's Product Management Director Sabrina Ellis that, under the Nexus Protect insurance package, consumers with valid claims would "get a new device as early as the next business day." CAC ¶¶ 170, 227.d. Google argues that that statement cannot form the basis for any of the California Plaintiffs' express warranty claims because no California Plaintiff alleges purchasing the Nexus Protect insurance package. Google Mot. 6. Plaintiffs offer no response in their opposition. The Court agrees with Google that there is no express warranty based on this statement for Plaintiffs without a Nexus Protect insurance package.
Plaintiffs decline to respond to Google's assertions with respect to the other states because, in Plaintiffs' view, "Google's legal challenges to the express warranty claims of non-California Plaintiffs contradict its position that California law controls." Opp'n 24 (citations omitted). But Plaintiffs misread Google's Motion to Dismiss, which advocates applying California law to those out-of-state Plaintiffs who purchased from Google and are subject to the choice-of-law provision in Google's Terms of Sale. See Google Mot. 3-4, 6.
In the future, if Plaintiffs combine the allegations against Google and Huawei, the Court will not try to unwind them in the same fashion but will simply dismiss.
The Court need not address Google's separate argument about Plaintiff Beheler's failure to give Google written notice. Google Mot. 25. As Google indicated in its Motion to Dismiss, that argument applies only to the extent that Plaintiff Beheler alleges an "uncured" deceptive act, as opposed to an "incurable" deceptive act. Id. In their opposition, Plaintiffs make clear that Plaintiff Beheler pleads an "incurable" deceptive act, as reflected in paragraph 395 of the CAC. Opp'n 55.