Elder v. Reliance Worldwide Corp.

Full title: Jene B. ELDER, et al., individually and on behalf of all others similarly…

Court: United States District Court, N.D. Georgia, Atlanta Division.

Date published: Sep 27, 2021

563 F. Supp. 3d 1221 (N.D. Ga. 2021)

Opinion

CIVIL ACTION NO. 1:20-cv-1596-AT

2021-09-27

Jene B. ELDER, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. RELIANCE WORLDWIDE CORPORATION, a Delaware Corporation; and Home Depot U.S.A., Inc., a Delaware Corporation, Defendants.

Andrea Solomon Hirsch, The Hirsch Law Firm, Atlanta, GA, Christopher Stiner, Pro Hac Vice, Ahdoot & Wolfson, PC, Los Angeles, CA, Patrick Shanan Montoya, Pro Hac Vice, Sabrina Soraya Saieh, Stephanie Ann Casey, Pro Hac Vice, Thomas Allen Kroeger, Pro Hac Vice, Colson Hicks Eidson, Coral Gables, FL, Tina Wolfson, Ahdoot & Wolfson, PC, Burbank, CA, for Plaintiffs. David A. Coulson, Pro Hac Vice, Eva M. Spahn, Pro Hac Vice, Greenberg Traurig PA, Miami, FL, James Foster, Steven Rosenwasser, William Evan Eye, Greenberg Traurig, LLP, Atlanta, GA, Keith E. Smith, Pro Hac Vice, Greenberg Traurig, LLP, Philadelphia, PA, for Defendant Reliance Worldwide Corporation. James Andrew Pratt, Billie Barker Pritchard, Sidney Stewart Haskins, II, King & Spalding LLP, Atlanta, GA, for Defendant Home Depot U.S.A., Inc.

AMY TOTENBERG, UNITED STATES DISTRICT JUDGE

Andrea Solomon Hirsch, The Hirsch Law Firm, Atlanta, GA, Christopher Stiner, Pro Hac Vice, Ahdoot & Wolfson, PC, Los Angeles, CA, Patrick Shanan Montoya, Pro Hac Vice, Sabrina Soraya Saieh, Stephanie Ann Casey, Pro Hac Vice, Thomas Allen Kroeger, Pro Hac Vice, Colson Hicks Eidson, Coral Gables, FL, Tina Wolfson, Ahdoot & Wolfson, PC, Burbank, CA, for Plaintiffs.

David A. Coulson, Pro Hac Vice, Eva M. Spahn, Pro Hac Vice, Greenberg Traurig PA, Miami, FL, James Foster, Steven Rosenwasser, William Evan Eye, Greenberg Traurig, LLP, Atlanta, GA, Keith E. Smith, Pro Hac Vice, Greenberg Traurig, LLP, Philadelphia, PA, for Defendant Reliance Worldwide Corporation.

James Andrew Pratt, Billie Barker Pritchard, Sidney Stewart Haskins, II, King & Spalding LLP, Atlanta, GA, for Defendant Home Depot U.S.A., Inc.

ORDER

AMY TOTENBERG, UNITED STATES DISTRICT JUDGE

I. Introduction

This is a products liability matter brought by residents of eight states who purchased an allegedly defective water heater connector. The brand of connector at issue — the SharkBite Water Connector ("the Connector") — was manufactured by Defendant Reliance Worldwide Corporation ("RWC") and distributed by retailers across the United States, including Defendant Home Depot U.S.A., Inc. ("Home Depot"). Plaintiffs allege that at various points after purchasing the Connector, the rubber lining inside the Connector began to deteriorate during normal use, resulting in flooding, leakage, and rubber flakes contaminating their water supply and causing damage to their floors and household appliances. Plaintiffs contend that despite being aware of this issue, Defendants concealed the defect from consumers and continued to sell the Connector in violation of numerous state laws. In Defendants’ view, the rubber flakes in Plaintiffs’ water and damages to their appliances were just inconveniences associated with the Connector, and Plaintiffs merely contend that the Connector did not work as well or for as long as they had hoped. Currently pending before the Court are two motions to dismiss filed by Defendants Home Depot [Doc. 48] and RWC [Doc. 49]. As discussed below, the Court DENIES both motions in principal part.

II. Background

The Court draws much of the relevant factual background from Plaintiffs’ Amended Complaint because the factual allegations contained therein must be accepted as true for purposes of resolving Defendants’ motions to dismiss.

Plaintiffs are residents of the States of Arizona, Florida, Iowa, Kansas, New Jersey, New Mexico, New York, and Ohio who purchased Defendants’ water heater connectors and installed them in their homes at various times since 2013. The Connector consists of a braided stainless-steel hose with a synthetic rubber lining and is designed to connect the hot and cold-water supply lines in residential and commercial water heaters. (Am. Compl., Doc. 33 ¶ 35.) Plaintiffs allege that during normal use the rubber lining inside the Connector deteriorates, which leads to low water pressure as well as "rubber flakes" and "a sludge-like substance" contaminating their water supplies, including their drinking water. This also causes damage to their dishwashers, washing machines, faucets, and shower heads. (Id. ¶¶ 4–5, 51.) In some cases, Plaintiffs experienced these issues shortly after purchasing the Connector. See, e.g. , (id. ¶¶ 72–73) (alleging that Plaintiff purchased the Connector on or around October 2018 and began experiencing issues in early 2019); (id. ¶¶ 91–92) (alleging that Plaintiff purchased the Connector in early 2019 and began experiencing issues in May or June of that year). In other cases, the problems occurred several years later. See, e.g. , (id. ¶¶ 77–78) (alleging that Plaintiff purchased the Connector in 2013 and began experiencing issues in early 2018); (id. ¶¶ 99–100) (alleging that Plaintiff purchased the Connector in 2016 or 2017 and began experiencing issues in June 2020).

To fix these issues, Plaintiffs had to replace their Connectors and fix or replace their other property that had been damaged. (Id. ¶ 55); see, e.g. , (id. ¶ 71) (stating that Plaintiff "had to replace the connector, and all of the filters and screens for his sinks, dishwasher and washing machine"); (id. ¶ 76) (stating that Plaintiff "had to replace five faucets, two shower heads, one dishwasher, one washing machine, and one water heater"); (id. ¶ 80) (stating that Plaintiff "had to clean and repair the screens for all of the faucets serving his home (including the kitchen faucet which supplied his drinking water) due to the buildup of rubber flakes and residue"); (id. ¶ 94) (stating that Plaintiff "had to replace the filter, connector, and coffee machine, as well as his wood flooring, due to the water damage.").

Plaintiffs represent that Defendants have been receiving complaints about the Connector since at least 2016. (Id. ¶ 57.) In response to one of these complaints, RWC attributed the issues with the Connector to water conditions "in coastal areas or areas with poor water quality, hard water, or high chlorine content." (Id. ¶ 61.) Plaintiffs also allege that at some point Defendants began selling an alternative design of the Connector that remedies these issues. In March or April of 2018, one Plaintiff, Warren Kuiper of Florida, called RWC to complain about his issues with the Connector and "[a] RWC representative told Mr. Kuiper to purchase the new, alternative water connector hoses from RWC." (Id. ¶ 79.) In addition, "[s]o as not to confuse Mr. Kuiper into purchasing the defective [Connector] again, the RWC representative provided Mr. Kuiper with the product's SKU number so that he could find a non-defective replacement." (Id. ¶ 79.)

Plaintiffs filed the initial complaint in this action on April 14, 2020, (Compl., Doc. 1.), and amended the complaint on August 3, 2020, (Doc. 33, Am. Compl.) In the Amended Complaint, Plaintiffs seek to represent a nationwide consumer class consisting of "[a]ll persons and entities that own a structure in which SharkBite Flexible Water Heater Connector connections were present within the applicable limitations period." (Id. ¶ 116.) Plaintiffs separately seek to represent subclasses of consumers who purchased the Connector from Home Depot; consumers located in Arizona, Florida, Iowa, Kansas, New Jersey, New Mexico, New York, and Ohio; and consumers who purchased the Connector from Home Depot in each of those states. (Id. ¶¶ 117–20.) They raise 28 counts in the Amended Complaint, including unjust enrichment, negligence, breach of implied warranties, and various products liability and state consumer protection claims. (Id. ¶¶ 135–523.) Defendants moved to dismiss the Amended Complaint on September 4, 2020. (Home Depot's Mot., Doc. 48-1); (RWC's Mot., Doc. 49.)

III. Legal Standard

A complaint should be dismissed under Rule 12(b)(6) only when it appears that the facts alleged fail to state a "plausible" claim for relief. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Fed. R. Civ. P. 12(b)(6). The plaintiff need only give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. See Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ); Fed. R. Civ. P. 8(a). In ruling on a motion to dismiss, the court must accept the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. See Hill v. White , 321 F.3d 1334, 1335 (11th Cir. 2003).

A claim is plausible when the plaintiff alleges factual content that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A plaintiff is not required to provide "detailed factual allegations" to survive dismissal, but the "obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. The plausibility standard requires that a plaintiff allege sufficient facts "to raise a reasonable expectation that discovery will reveal evidence" that supports the plaintiff's claim. Id. at 556, 127 S.Ct. 1955. A complaint may survive a motion to dismiss for failure to state a claim even if it is "improbable" that a plaintiff would be able to prove those facts and even if the possibility of recovery is extremely "remote and unlikely." Id.

IV. Discussion

A. Choice of Law

The Court begins by addressing which state's law should apply to each of Plaintiffs’ claims. As the Court's jurisdiction in this matter is based on diversity of citizenship, the Court must apply the choice of law rules of the forum state — Georgia. U.S. Fid. & Guar. Co. v. Liberty Surplus Ins. Corp. , 550 F.3d 1031, 1033 (11th Cir. 2008) (citing Klaxon Co. v. Stentor Elec. Mfg. Co. , 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) ). Under Georgia's choice of law principles, the application of another jurisdiction's laws is limited to its statutes and decisions construing those statutes. When no statute is involved, Georgia courts apply the common law as developed in Georgia rather than foreign case law. Frank Briscoe Co., Inc. v. Ga. Sprinkler Co., Inc. , 713 F.2d 1500, 1503 (11th Cir. 1983) (citing White v. Borders , 104 Ga.App. 746, 123 S.E.2d 170 (1961), and Budget Rent-A-Car Corp. v. Fein , 342 F.2d 509 (5th Cir. 1965) ).

Applying these principles to the case at hand, the Court first observes that Plaintiffs raise their unjust enrichment claims under "common law." (Am. Compl., Doc. 33 ¶ 136.) The relevant common law here is the common law of Georgia. Hence, Georgia law applies. Similarly, Plaintiffs state that they are bringing their negligence claim under "common law." (Id. ¶ 144.) Once again, the common law that applies is the common law of Georgia.

At the opposite end of the spectrum, Plaintiffs’ consumer protection claims are governed by foreign law because each claim is expressly raised under another state's statute: the Arizona Consumer Fraud Act ( Ariz. Rev. Stat. Ann. § 44-1521, et seq. ) (Count 4); the Florida Deceptive and Unfair Trade Practices Act ( Fla. Stat. Ann. § 501.201, et seq. ) (Count 7); the Iowa Private Rights of Action for Consumer Frauds Act ( Iowa Code Ann. § 714H.1, et seq. ) (Count 10); the Kansas Consumer Protection Act ( Kan. Stat. Ann. § 50-623, et seq. ) (Count 13); the New Jersey Consumer Fraud Act ( N.J. Stat. Ann. § 56:8-1, et seq. ) (Count 16); the New Mexico Unfair Trade Practices Act ( N.M. Stat. Ann. § 57-12-1, et seq. ) (Count 19); the New York Deceptive Acts and Practices Act ( N.Y. Gen. Bus. Law § 349 ) (Count 22); the New York False Advertising Act ( N.Y. Gen. Bus. Law § 350 ) (Count 23); and the Ohio Consumer Sales Practice Act ( Ohio Rev. Code § 1345.01, et seq. ) (Count 26).

Plaintiffs’ breach of implied warranties claim is a more complicated matter. As one decision from this district observes, "Georgia courts have not clearly indicated how to resolve a conflicts-of-law problem involving an implied warranty of merchantability." Morgan v. Mar-Bel, Inc. , 614 F. Supp. 438, 441–42 (N.D. Ga. 1985). Federal district courts in Georgia have reached different conclusions about which state's law should apply in this context. Compare id. at 442 (applying Georgia law to implied warranty of merchantability claim in diversity action), with Terrill v. Electrolux Home Prods, Inc. , 753 F. Supp. 2d 1272, 1281 (S.D. Ga. 2010) (applying the law of each plaintiff's home state to breach of implied warranty claims). But the Supreme Court of Georgia has held that "[w]here no statute of the foreign State is pleaded, it will be presumed that the common law prevails in such State." Avnet, Inc. v. Wyle Laboratories, Inc. , 263 Ga. 615, 437 S.E.2d 302, 306 (1993) (quoting Slaton v. Hall , 168 Ga. 710, 148 S.E. 741 (1929) ); accord In re Tri-State Crematory Litig. , 215 F.R.D. 660, 678 n.6 (N.D. Ga. 2003) ("[B]ecause the parties have not directed the Court's attention to statutes of foreign States in their pleadings, the Court presumes the law of the State of Georgia applies."). And here, even though breach of implied warranty claims are created by statute, see Terrill , 753 F. Supp. 2d at 1281, neither party references any statutes on point for these claims. Georgia law should therefore apply. See In re Stand N’ Seal, Prods. Liab. Litig. , No. 1:07-MD-1804, 2009 WL 2998003, at *2 (N.D. Ga. Sept. 15, 2009) (applying Georgia law to products liability, implied warranty, and negligence claims because "the parties have not identified any foreign statutes" for those claims).

Georgia law should apply to Plaintiffs’ products liability claims for the same reason. Although Plaintiffs reference several state products liability statutes — the Kansas Products Liability Act (Counts 14 and 15), the New Jersey Product Liability Act (Counts 17 and 18), and the Ohio Products Liability Act (Counts 27 and 28) — Plaintiffs do not cite any specific provisions of these statutes¹ in their Amended Complaint or clarify how any of these statutes apply.

1 Plaintiffs identify the Kansas Product Liability Act as Kan. Stat. Ann. § 60-3301, et. seq. but do not point to any specific provisions of that Act within the larger "et seq. " citation. For their New Jersey Product Liability Act and Ohio Products Liability Act claims, Plaintiffs do not even provide an "et seq. " citation that would direct the Court to a larger series of statutory provisions to which they are referring.

Additionally, it would make little sense to apply the laws of the eight different states in which Plaintiffs were allegedly injured when analyzing Plaintiffs’ products liability claims given that Georgia law applies to Plaintiffs’ negligence claims. Plaintiffs’ negligence and products liability theories have considerable overlap, and as Georgia courts have observed, "only semantics" distinguishes causes of action for negligence from products liability claims. Banks v. ICI Americas, Inc. , 264 Ga. 732, 450 S.E.2d 671, 674 n.3 (1994). In prior cases, Georgia courts have also applied Georgia law to products liability claims resulting from injuries that occurred out of state based on a public policy exception to the rule of lex loci delecti. See Alexander v. Gen. Motors Corp. , 267 Ga. 339, 478 S.E.2d 123, 123–24 (1996) (applying Georgia law to strict liability claim when injury occurred in Virginia but the case was filed in Georgia); Bailey v. Cottrell , 313 Ga.App. 371, 721 S.E.2d 571, 573–74 (2011) (applying Georgia law to strict liability claim when injury occurred in Indiana but the case was filed in Georgia).²

2 In Alexander the court found that it would violate Georgia public policy to apply Virginia law because, unlike Georgia, Virginia did not recognize strict liability for manufacturers. 478 S.E.2d at 123–24. And in Bailey the court applied Georgia law instead of Indiana law because, unlike Georgia, Indiana did not recognize strict liability for design defect claims. 721 S.E.2d 571, 573–74. Thus, the court found that applying Indiana law would violate Georgia public policy. Id. at 573.

Even if foreign law would otherwise apply to Plaintiffs’ implied warranty and products liability claims, in the Court's view, Georgia law should still apply for another reason: a rule requiring application of foreign law in a case such as this one would be unworkable. As the court observed in In re Stand N’ Seal, Products Liability Litigation , in the context of mass tort cases, "[a]pplying foreign law to individual claims would require individual trials for each Plaintiff." 2009 WL 2998003, at *3. Proceeding in such a manner would "result in an enormous waste of judicial resources and create a danger of inconsistent verdicts in similar cases depending upon the fortuity of whether a foreign statute applies to a particular claim." Id. For that reason, the court stated it was "firmly convinced" that Georgia courts would make an exception to the rule of lex loci delicti and instead apply the law of the forum state in these types of cases. Id. This Court agrees. Accordingly, the Court will apply Georgia law to all of Plaintiffs’ claims except for their consumer protection claims.

B. Nationwide Claims

1. Unjust Enrichment (Count 1)

Unjust enrichment is an equitable concept that applies when there is "no legal contract" but a benefit has been conferred that "would result in an unjust enrichment unless compensated." Cochran v. Ogletree , 244 Ga.App. 537, 536 S.E.2d 194, 196 (2000). "In other words, if there was no express or implied contract, the plaintiffs can bring a claim for unjust enrichment." Collins v. Athens Orthopedic Clinic , 356 Ga.App. 776, 849 S.E.2d 213, 216 (2020). Notably, "unjust enrichment must be pled as an alternate remedy and not ... as a separate tort" Id. at 216 n.6.

To establish an unjust enrichment claim under Georgia law, a plaintiff must show that "(1) a benefit has been conferred, (2) compensation has not been given for receipt of the benefit, and (3) the failure to so compensate would be unjust." Amin v. Mercedes-Benz USA, LLC , 349 F. Supp. 3d 1338, 1362 (N.D. Ga. 2018) (quoting Chartis Ins. Co. of Can. v. Freeman , No. CV 111-193, 2013 WL 12121864, at *6 (S.D. Ga. Mar. 18, 2013) ). "Plaintiff can recover for money had and received only where it appears that the defendants have received money belonging to the plaintiff which, in equity and good conscience, the defendants are not entitled to retain." Cochran , 536 S.E.2d at 197. However, "it is not necessary that the plaintiff allege a direct payment by the plaintiff to the allegedly unjustly-enriched defendant." Amin , 349 F. Supp. 3d at 1362 (citation omitted). Finally, "[i]t is axiomatic that equitable relief is only available where there is no adequate remedy at law." WESI, LLC v. Compass Env't, Inc. , 509 F. Supp. 2d 1353, 1362 (N.D. Ga. 2007) (quoting Mitsubishi Int'l Corp. v. Cardinal Textile Sales, Inc. , 14 F.3d 1507, 1518–19 (11th Cir. 1994) ).

As a threshold matter, Home Depot argues that Plaintiffs’ unjust enrichment claim against Home Depot fails because Plaintiffs entered into contracts with Home Depot when they purchased the Connectors. (Home Depot's Mot., Doc. 45-1 at 39.) Notwithstanding their allegation in the Amended Complaint that "Home Depot entered into a contract of purchase and sale with Plaintiffs," (Am. Compl., Doc. 33 ¶ 158), Plaintiffs contend that whether they had contracts with Home Depot is a factual question that is inappropriate for resolution at the pleading stage, (Pls.’ Opp'n to Home Depot's Mot., Doc. 52 at 33.) Though Plaintiffs rely on out-of-state case law in making this argument, Georgia law appears to be in accord on this point. See Vernon v. Assurance Forensic Acct., LLC , 333 Ga.App. 377, 774 S.E.2d 197, 212 n.10 (2015) ("A claim for unjust enrichment is unavailable where there is a legal contract addressing the obligations of the defendant to the plaintiff. But summary judgment should not be granted on that ground where, as here, a jury must resolve whether a contract existed between the parties.") (internal citations omitted). So, at least for now, the Court will decline to dismiss Plaintiffs’ unjust enrichment claim against Home Depot on the theory that Plaintiffs had entered contracts with Home Depot.

As RWC points out, Plaintiffs’ unjust enrichment claims may ultimately fail on the ground that Plaintiffs have other "adequate remedies at law." (RWC's Mot., Doc. 49 at 13.) But for purposes of the pending motions to dismiss, the Court cannot assume that Plaintiffs’ other claims will be successful, so the Court must analyze Plaintiffs’ unjust enrichment claim. The Court also notes that in their opposition to RWC's motion to dismiss Plaintiffs clarify that they are merely seeking their unjust enrichment claims as an alternative ground of relief. (Pls.’ Opp'n to RWC's Mot., Doc. 51 at 36 & n.9.) So, unlike in Collins , the unjust enrichment claim here is not automatically subject to dismissal on the theory that Plaintiffs have improperly raised "a separate tort."

At bottom, Plaintiffs’ unjust enrichment claim is premised on the theory that Defendants have "bilked consumers of millions of dollars" by selling defective Connectors. (Am. Compl., Doc. 33 ¶ 1.) Plaintiffs allege that they "paid a premium" for the product based on RWC's representation that it was "fit for its marketed purpose, of high quality, and would provide peace of mind." (Id. ¶ 8.) They further allege that by doing so Plaintiffs "conferred a benefit on Defendants" by paying a premium for the Connectors, (id. ¶ 139), and that "Defendants’ retention of the benefit conferred as a result of its unlawful acts was inequitable and unjust," (id. ¶ 140.) Though Defendants argue that Plaintiffs have not adequately plead that it would be "unjust" to retain the purchase price for the Connectors, the Court finds this unconvincing considering that the benefit Plaintiffs bargained for was a Connector that would "provide a conduit for hot water without contaminating the water." (Pls.’ Opp'n to Home Depot's Mot., Doc. 52 at 17) (emphasis added).

RWC also contends that the Eleventh Circuit has held that unjust enrichment claims are inappropriate for class action treatment. (RWC's Mot., Doc. 49 at 41 n.10) (citing Vega v. T-Mobile USA, Inc. , 564 F.3d 1256, 1274 (11th Cir. 2009) ). But as Plaintiffs note, RWC's argument that unjust enrichment claims are inappropriate for class treatment "is premature at the motion-to-dismiss stage, as any attacks as to the appropriateness of class treatment can be raised at the class certification phase." (Pls.’ Opp'n to RWC's Mot., Doc. 51 at 38.)

Defendants separately argue that Plaintiffs Warren Kuiper and Kristen Montag's unjust enrichment claims are time-barred based on the applicable statute of limitations because they purchased their Connectors in 2013 and 2014, respectively. (Home Depot's Mot., Doc. 48-1 at 36–37.) Under Georgia law, the statute of limitations for bringing an unjust enrichment claim is four years.³ Ga. Code Ann., § 9-3-26. And based on Georgia's four-year statute of limitations, Defendants contend that Kuiper was required to file his unjust enrichment claim by 2017 and Montag was required to file her claim by 2018, and that both of them failed to do so because they waited until 2020. (Home Depot's Mot., Doc. 48-1 at 37.)

3 As Defendants point out, (RWC's Mot., Doc. 49 at 36 n.9), Georgia's statute of limitations applies because which state's statute of limitations applies is considered a procedural issue for choice-of-law purposes rather than a substantive one.

In response, Plaintiffs assert that the statute of limitations for Kuiper and Montag's unjust enrichment claims are tolled by the fraudulent concealment and discovery doctrines. (Pls.’ Opp'n to Home Depot's Mot., Doc. 52 at 29–31.) The parties vigorously dispute whether these exceptions should apply; however, the Court need not resolve this issue at the pleading stage because, as the Eleventh Circuit has made clear, "a Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate only if it is ‘apparent from the face of the complaint’ that the claim is time-barred," La Grasta v. First Union Sec., Inc. , 358 F.3d 840, 845 (11th Cir. 2004) (quoting Omar v. Lindsey , 334 F.3d 1246, 1251 (11th Cir. 2003) ); see Sec'y of Lab. v. Labbe , 319 F. App'x 761, 764 (11th Cir. 2008) (declining to dismiss complaint on statute of limitations grounds because "as to those violations that may be time-barred" the court could not "conclude beyond a doubt that the Secretary can prove no set of facts that toll the statute"). It appears to the Court that whether the statute of limitations will apply to Kuiper and Montag's unjust enrichment claims will depend on questions of fact. Cf. Chrysler Corp. v. Batten , 264 Ga. 723, 450 S.E.2d 208, 212 (1994) (finding that plaintiff's products liability claims would be time barred "unless sufficient evidence was adduced to create a fact question " as to whether an exception to the statute of repose applied) (emphasis added). Moreover, because it cannot at this stage "conclude beyond a doubt" that Kuiper and Montag's claims are time barred, the Court declines to dismiss Kuiper and Montag's unjust enrichment claims at this juncture.

2. Negligence (Count 2)

The Court next turns to Plaintiffs’ negligence claim, which is based on the theory that Defendants negligently failed to warn them of the defects associated with the Connector. In support of this claim, Plaintiffs allege that Defendants had a duty to warn them about "all dangers associated with the normal, intended use" of the Connector, including that it posed a risk of damaging other property in their homes and creating a "health and safety risk to consumers by contaminating their homes’ water supply." (Am. Compl., Doc. 33 ¶¶ 150–51.) Plaintiffs further allege that Defendants breached their duty to warn Plaintiffs of these risks because Defendants knew about these issues yet still failed to provide Plaintiffs with adequate warnings. For instance, Plaintiffs allege that the Connector "contains no warnings limiting its use to any particular water type or condition." (Id. ¶ 41.) They add, "to the extent the premature rubber deterioration could be attributed to water conditions ‘in coastal areas or areas with poor water quality, hard water, or high chlorine content,’ RWC has knowingly continued to fail to adequately warn consumers." (Id. ¶ 67.) Plaintiffs claim that Defendants’ failure to warn them of these dangers proximately caused their injuries.

Defendants aver that they had no duty to warn Plaintiffs about the issues associated with the Connectors because the Connectors were not unreasonably dangerous. Home Depot argues that Plaintiffs did not receive the Connectors in an unreasonably dangerous condition because Plaintiffs "concede they used the Connector for several months or years without any issue, much less an injury." (Home Depot's Mot., Doc. 48-1 at 32.) And RWC says that while the issues Plaintiffs describe "may be inconvenient," they argue, "there is nothing unreasonably dangerous about having clogged faucets and other appliances." (RWC's Mot., Doc. 49 at 19.) RWC also argues that Plaintiffs "do not allege that they drank from this purportedly contaminated hot water or suffered any injury to their health as a result." (RWC's Mot., Doc. 49 at 15.)

In the Court's view, Plaintiffs have adequately plead that the product is unreasonably dangerous. For example, Plaintiffs allege that "[t]he consumption of synthetic rubber, which is composed of chemical compounds, is toxic to humans" and "the inadvertent consumption of rubber flakes in drinking water can present a choking hazard." (Am. Compl., Doc. 33 ¶ 5.) Not only do these allegations have to be accepted as true, but as a matter of common sense, "[t]he presence of rubber residue in drinking and bathing water presents a safety and health risk to consumers." (Id. ¶ 146.) Despite the fact that no Plaintiff alleged that she actually drank the water, Plaintiffs aptly assert, "It is self-evident that the contamination of household drinking water supplies poses a serious threat to human health." (Opp'n to RWC's Mot., Doc. 51 at 20.) Plaintiffs have "alleged—and depicted with photographic detail—unsafe concentrations of rubber fragments in their drinking water." (Id. at 21.) The Court finds this sufficient to show that the product was unreasonably dangerous.

Defendants alternatively argue that to the extent the Connector was unreasonably dangerous, this was public knowledge that was equally available to Plaintiffs. (Home Depot's Mot., Doc. 48-1 at 18.) But as Plaintiffs argue in response, "[t]his ignores the obvious different awareness a retailer would have of information posted on its website as compared to a purchaser of that product." (Opp'n to Home Depot's Mot., Doc. 52 at 28.) It does not strain credulity to presume that "Home Depot was aware of information on its own website," while at the same time "the public at large was not generally aware." (Id. at 29.) Moreover, whether Plaintiffs were aware of this information is a factual question.

Defendants also argue that the economic loss rule bars recovery on a negligence theory.⁴ In Georgia, the economic loss rule generally provides that "a contracting party who suffers purely economic losses must seek his remedy in contract and not in tort." Gen. Elec. Co. v. Lowe's Home Ctrs., Inc. , 279 Ga. 77, 608 S.E.2d 636, 637 (2005). RWC says the economic loss rule bars recovery here because Plaintiffs primarily seek damages related to either "the replacement of the Connector and the other components that it connects the water lines to" or "damages related to mere inconvenience, such as lost time or low water flow." (RWC's Mot., Doc. 49 at 24) (internal citations omitted).

4 Defendants also argue that the economic loss rule bars Plaintiffs’ products liability claims, but for the sake of judicial economy the Court will only address the parties’ arguments with respect to the economic loss rule in the context of Plaintiffs’ negligence claim.

On the other hand, the economic loss rule does not bar recovery for damages to property "other than the product itself." Bates & Assocs., Inc. v. Romei , 207 Ga.App. 81, 426 S.E.2d 919, 921 (1993) ; see Restatement (Third) of Torts: Prod. Liab. § 21 (1998) ("A product that nondangerously fails to function due to a product defect has clearly caused harm only to itself. A product that fails to function and causes harm to surrounding property has clearly caused harm to other property.") (emphasis added). And here, Plaintiffs allege that the Connectors "ultimately damage other property, such as dishwashers, washing machines, faucets, and shower heads." (Am. Compl., Doc. 33 ¶ 4.) Plaintiffs also allege that in addition to the degradation of the rubber lining inside the Connecter leading to "the premature failure" of the Connector and that leakage from the Connectors has resulted in flooding that damaged other areas of their homes. (Id. ¶ 6.)

RWC argues that the economic loss rule nevertheless applies because the Connector was integrated into the other appliances that were damaged. (RWC's Mot., Doc. 49 at 12–13.) RWC says that under this "integrated system approach" the economic loss rule applies and bars recovery "when component materials become indistinguishable parts of a final product." (Id. at 26–27) (quoting N.W. Ark. Masonry, Inc. v. Summit Specialty Prods., Inc. , 29 Kan. App. 2d 735, 744, 31 P.3d 982 (2001) ). RWC argues that the integrated system approach applies here because "Plaintiffs allege that the Connector is used to ‘connect the hot and cold-water supply lines to ... water lines’ and, in turn, these lines carry water to various appliances throughout the home." (Id. at 27.) In short, RWC argues, "Because the Connector is a component part of Plaintiffs’ plumbing systems, the other property exception does not apply." (Id. ) RWC cites a multitude of cases outside of Georgia in an effort to support this theory. In one of these cases, Lexington Insurance Co. v. Western Roofing Co. , 316 F. Supp. 2d 1142 (D. Kan. 2004), a roofing company attached wire mesh screens to a roof that were designed to keep pigeons from entering the roof's downspouts, but the screens prevented rainwater from draining through the downspouts and caused the roof to collapse, id. at 1144–45. The court held that the economic loss rule barred recovery for the damage the screens caused to the roof because the screens "served no purpose other than as a component of the roof drainage system." Id. at 1148-49. As another example, RWC cites Pool Fact Industries, L.L.C. v. Turbotec Products, Inc. , No. 07-60829, 2008 WL 11330716 (S.D. Fla. Mar. 3, 2008). In Pool Fact , the court held that the heat exchanger in a swimming pool that damaged the pool's heating pumps fell within the economic loss rule because the heat exchanger was "a component of the heat pump system." Id. at *1, *3. And to give a third example, Plaintiffs cite Trump International Hotel & Tower v. Carrier Corp. , 524 F. Supp. 2d 302 (S.D.N.Y. 2007). There, the court held that the components of air conditioning equipment — the flow switch to an absorption chiller and the absorption chiller — were part of a single integrated unit, and the malfunctioning flow switches therefore did not damage other property when the flow switches caused the absorption chiller to freeze. Id. at 312.

Relying on these and several other cases, RWC argues that the economic loss rule bars recovery here because Plaintiffs’ "sinks, dishwashers, washing machines, faucets, shower heads, toilets, water heaters and plumbing lines" were all "part of a larger, integrated system"; namely, Plaintiffs’ plumbing systems. (RWC's Mot. Doc. 49 at 29.)

Plaintiffs contend that the economic loss rule does not apply because they "plainly seek damages to ‘other property’ " as a result of their issues with the Connectors, including "filters and screens, dishwashers, washing machines, faucets, shower heads, water heaters, sink aerators, toilets, coffee machines, and wood flooring." (Pls.’ Opp'n to RWC's Mot., Doc. 51 at 23.) They argue that the Connector "is not an integrated part of the Plaintiffs’ fixtures and appliances merely because it connects them to a water supply line, as RWC so contends." (Id. at 24–25.) And "damage to Plaintiffs’ homes resulting from flooding after [the Connectors] prematurely failed could in no way be related to the purported incorporated systems described by RWC." (Id. at 25.)

Like Defendants, Plaintiffs cite a plethora of decisions outside of Georgia in an effort to support their own interpretation of the economic loss rule. The Court finds one of these cases, Sweeney v. Kimberly–Clark Corp. , No. 8:14-cv-3201, 2015 WL 5446797 (M.D. Fla. Sept. 15, 2015), to be particularly on point. In Sweeney , the court declined to apply the economic loss rule when the product at issue — flushable wipes — clogged the plaintiffs’ toilets and caused damage to their plumbing systems. The court found that the damages the flushable wipes caused to the plumbing system were "damage to property separate and apart from the products themselves" and the economic loss rule therefore did not apply. Id. at *5.

The Court finds the Connectors here, which damaged other property that was connected to Plaintiffs’ plumbing systems, to be more analogous to the flushable wipes that damaged other property connected to the plumbing system in Sweeney than it is to the screens that damaged the roof in Lexington , the heat exchangers that damaged the heating pumps in Pool Fact , or the flow switches that damaged the absorption chillers in Trump International Hotel . On these facts, Georgia courts would likely follow the approach taken by the court in Sweeney and hold that the economic loss rule does not bar recovery. See Mike Bajalia, Inc. v. Amos Constr. Co. , 142 Ga.App. 225, 235 S.E.2d 664, 666 (1977) (holding that economic loss rule did not apply when plaintiff's claim was "based upon the physical injuries to the building"). Thus, the economic loss rule does not bar Plaintiffs’ negligence claim.

3. Breach of Implied Warranties (Count 3)

The Court now turns to Plaintiffs’ breach of implied warranties claim. Plaintiffs raise this claim against Home Depot only, not RWC.⁵ The Court understands this claim as encompassing breaches of both the implied warranty of merchantability and the implied warranty of fitness for a particular purpose. The Court addresses each of these implied warranty claims in turn.

5 In their Opposition to Home Depot's motion to dismiss, Plaintiffs state that they are voluntarily dismissing this Count as to Plaintiffs Cavalieri, Montag, Segrist, and Green. (Pls.’ Opp'n to Home Depot's Mot., Doc. 52 at 12 n.2.) If Plaintiffs intend to voluntarily dismiss this Count, they must do so either by amending the pleadings or by filing a formal motion instead of attempting to do so through an opposition brief.

a. Implied Warranty of Merchantability

Under Georgia law, the implied warranty of merchantability is implied in contracts of sale when the seller is a merchant with respect to goods of that kind.⁶ Ga. Code Ann. § 11-2-314(1). To be considered "merchantable," a product must be "fit for the ordinary purposes for which such goods are used." Id. § 11-2-314(2)(c). To recover on a breach of implied warranty of merchantability claim, a plaintiff must show "not only the existence of the warranty but the fact that the warranty was broken and that the breach of the warranty was the proximate cause of the loss sustained." Id. § 11-2-314, UCC Cmt. 13.

6 No party disputes that Home Depot is a merchant.

In their Amended Complaint, Plaintiffs allege that by entering sales contracts with Plaintiffs, Home Depot "impliedly warranted to Plaintiffs and Home Depot Purchaser Subclass members that [the Connector] was of merchantable quality and reasonably fit for the intended purpose and use of connecting water lines in a clean, safe, and efficient manner, and not blocking water lines with rubber sludge or depositing rubber flakes and residue into the water." (Am. Compl., Doc. 33 ¶ 159.) They further allege that they "relied on the Home Depot's judgment in selecting the products it sells at its stores, including [the Connector], because Home Depot markets itself and holds itself out as a leader in product authority, that sells high-quality and innovative products." (Id. ¶ 161) And they allege that Home Depot breached the implied warranty of merchantability "by selling a product with a design defect which results in premature deterioration of the rubber lining." (Id. ¶ 162.) Plaintiffs allege that this occurs "during normal use." (Id. ¶ 4.)

Home Depot counters that the implied warranty of merchantability does not "guarantee that a product will perform indefinitely." (Home Depot's Mot., Doc. 48-1 at 13–14.) Instead, Home Depot argues, "it merely provides that a product will meet a basic level of functionality—here, connecting water lines—and Plaintiffs concede that their Connectors did exactly that for a substantial period of time." ( Id. at 14.) Home Depot says, "Absent an allegation that Plaintiffs’ Connectors failed to connect a water heater to a water supply line, Plaintiffs’ claims for breach of the warranty of merchantability should be dismissed." (Id. at 28.)

Plaintiffs respond that "a year's worth of usage is certainly below anyone's reasonable expectations, and no one would expect that a water heater hose would fail by contaminating the water supply." (Pls.’ Opp'n to Home Depot's Mot., Doc. 52 at 22.) Relying on a comment from RWC in response to a consumer complaint that was posted on Home Depot's website, Plaintiffs also assert that the expected life of the Connector was supposed to be 5 to 8 years.⁷ (Id. at 21.)

7 Plaintiffs separately request that the Court take judicial notice of all of the information contained on a printout of Home Depot's website. See (Doc. 53.) The printout includes a comment from RWC in response to a consumer complaint indicating that RWC made modifications to the rubber lining in the Connectors in 2014 after discovering that it was breaking down and that it expected the Connectors to last 5 to 8 years. (Doc. 53-2 at 6.) Although as Plaintiffs note, "documents available on the internet have been held to qualify as public records for the purposes of judicial notice," (Doc. 53 at 3), it does not appear to the Court that all of the information on this webpage qualifies as information that is "not subject to reasonable dispute" for purposes of Fed. R. Evid. 201(b). The Court therefore declines to take judicial notice of the information contained in the printout.

To be sure, as Home Depot points out, (Home Depot's Mot., Doc. 48-1 at 26), "[t]he implied warranty of merchantability does not promise perfection," Malul v. Capital Cabinets, Inc. , 191 Misc.2d 399, 740 N.Y.S.2d 828, 835 (2002). But at the same time, a consumer would not "reasonably expect" that a water heater Connector would contaminate the house's entire water supply with rubber pellets and sludge. Cf. id. at 835 ("A buyer of kitchen cabinets would reasonably expect that they could be used near a stove without the doors ‘melting.’ "). And even though the Connectors served their ordinary function of connecting the hot and cold-water supplies, "[t]he implied warranty of merchantability can be breached when, although capable of performing its ordinary function, a product nonetheless fails in a significant way to perform as a reasonable consumer would expect." 77A C.J.S. Sales § 439. Here, Plaintiffs have alleged that, while the Connectors served its ordinary function of connecting the hot and cold-water supplies in their homes, it failed to perform in a manner they would reasonable expect — as a side effect of the connection, their water supplies were contaminated with rubber pellets and sludge. That unexpected side effect is sufficient to render the Connector unmerchantable. See Mitchell v. BBB Servs. Co. , 261 Ga.App. 240, 582 S.E.2d 470, 471–72 (2003) (holding that the presence of a bone in plaintiff's hamburger rendered the product unmerchantable because "a consumer should not reasonably have anticipated the substance's presence" (quoting Goodman v. Wenco Foods , 333 N.C. 1, 423 S.E.2d 444 (1992) )). Accordingly, Plaintiffs have stated a claim for breach of the implied warranty of merchantability.

b. Implied Warranty of Fitness for a Particular Purpose

The implied warranty of fitness for a particular purpose applies when "the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods." Ga. Code Ann. § 11-2-315. Significantly, "[a] ‘particular purpose’ differs from the ordinary purpose for which the goods are used, in that it envisages a specific use by the buyer which is peculiar to the nature of his business." 77A C.J.S. Sales § 442. "Therefore, when goods are acquired for the ordinary purpose for which such goods are generally used, no implied warranty of fitness for a particular purpose arises." Id.

Plaintiffs clarify in their opposition to Home Depot's motion to dismiss that their implied warranty of fitness for a particular purpose claim is an alternative to their implied warranty of merchantability claim. (Pls.’ Opp'n to Home Depot's Mot., Doc. 52 at 23.) More specifically, they argue that if using the Connector in high chlorine areas was not an ordinary purpose it was, alternatively, a particular purpose that falls within the scope of the implied warranty of fitness for a particular purpose. (Id. at 24.)

Home Depot retorts that using the Connector in high chlorine areas is an ordinary purpose, not a particular purpose. (Home Depot's Reply, Doc. 54 at 19–20) ("Water quality is merely a condition related to the ordinary purpose of the Connector—i.e. , connecting water lines. And purchasing an item to serve its ‘ordinary purpose’ does not support a claim for breach of the implied warranty of fitness for a particular purpose.") (emphasis in original). Home Depot argues, "Plaintiffs do not identify any particular purpose for their purchases beyond the ordinary purpose of the Connectors: to connect water lines." (Home Depot's Mot., Doc. 49-1 at 29–30 & n.17.) In addition, Home Depot says, "to state an implied warranty claim, the plaintiff must allege that she communicated with the seller to make the seller aware of the specific purpose for which she is purchasing the item." (Id. at 30.) Home Depot says none of the Plaintiffs allege that they spoke to a Home Depot employee about their purchase, informed the employee about the specific purpose for the purchase, or relied on Home Depot's judgment in making the purchase. (Id. at 31.)

Plaintiffs argue that "[s]pecific representations to the purchaser are not required here" because "Defendant already admits that it knew customers would use these products in areas with hard water." (Pls.’ Opp'n to Home Depot's Mot., Doc. 52 at 24.) But as Home Depot says in its Reply, "Plaintiffs have not identified any factual support for their contention that Home Depot knew any particular Plaintiff intended to install a Connector in an area with hard water or high chlorine content." (Home Depot's Reply, Doc. 54 at 18.)

The Court agrees with Home Depot that Plaintiffs have failed to state a claim for breach of the implied warranty of fitness for a particular purpose. For starters, using the Connector in a high chlorine area seems consistent with use of the Connector for its ordinary purpose. Plaintiffs cannot state a clam for breach of implied warranty of fitness for a particular purpose when using a product for its ordinary purpose. See Royal Typewriter Co., a Div. of Litton Bus. Sys. Inc. v. Xerographic Supplies Corp. , 719 F.2d 1092, 1100 (11th Cir. 1983) ("Since the RBC–I's were used for ordinary purposes, a warranty of fitness for a particular purpose did not arise."). Additionally, even if use of the Connector in a high chlorine area did qualify as a particular purpose, Plaintiffs do not allege that any of them actually used the Connector in a high chlorine area; nor do they allege that Home Depot was aware that any Plaintiff planned to use the Connector for that particular purpose. That is fatal to Plaintiffs’ claim. See id. (stating that the implied warranty of fitness for a particular purpose "arises where a seller has reason to know a particular purpose for which the goods are required and the buyer relies on the seller's skill or judgment to select or furnish suitable goods"); Jenkins v. Gen. Motors Corp. , 240 Ga.App. 636, 524 S.E.2d 324, 326 (1999) (denying implied warranty of fitness for a particular purpose claim because "[t]he record does not show that Jenkins relied on General Motors’ skill and judgment in selecting the series 3500 truck, or that, if he did, General Motors knew of the reliance"). The Court therefore GRANTS Home Depot's motion to dismiss this aspect of Plaintiffs’ breach of implied warranty claim.

C. State Class Claims

1. Products Liability Claims

a. Design Defect (Counts 6, 9, 12, 15, 18, 21, 25 and 28)

Plaintiffs raise eight counts based on theories of defective design in each of the eight states where Plaintiffs reside. Because Georgia law applies to these counts, the Court will analyze these counts together.⁸

8 Plaintiffs raise five of those eight counts as strict liability claims. Strict products liability claims are limited to manufacturers under Georgia law. See Ga. Code Ann., § 51-1-11.1(b). Retailers such as Home Depot therefore cannot be liable under a strict liability theory. For this reason, Plaintiffs’ design defect claim cannot proceed against Home Depot to the extent Plaintiffs rely on a theory of strict liability.

To determine whether a product has a defective design, Georgia courts apply the risk-utility analysis. Under that standard, "the risks inherent in a product design are weighed against the utility or benefit derived from the product." Banks , 450 S.E.2d at 673. Georgia courts have emphasized that "[o]ne factor consistently recognized as integral to the assessment of the utility of a design is the availability of alternative designs" because "the existence and feasibility of a safer and equally efficacious design diminishes the justification for using a challenged design." Banks , 450 S.E.2d at 674 ; see Bryant v. BGHA, Inc. , 9 F. Supp. 3d 1374, 1383 (M.D. Ga. 2014) (describing the availability of an alternative design as "the most important factor" in the risk utility analysis). Additionally, Georgia law "has long applied negligence principles in making the determination whether a product was defectively designed." Id. at 674. And when a manufacturer designs a product, "[i]t must not only be reasonably safe for the purposes for which it was intended but also for other uses that are reasonably foreseeable." Ga. Law of Torts § 3:7.

In their Amended Complaint, Plaintiffs allege that the Connector "has a design defect that causes the incorporated rubber lining to deteriorate during normal use." (Am. Compl., Doc. 33 ¶¶ 197, 238, 280, 325, 367, 412, 469, 512.) They allege that this leads to "[t]he presence of rubber residue in drinking and bathing water," which "presents a safety and health risk to consumers" and "renders [the Connector] unreasonably dangerous for its ordinary and intended use." (Id. ¶¶ 199–200, 240–41, 282–83, 327–28, 369–70, 414–15, 471–72, 514–15.)

Notably, Plaintiffs also allege, by reference to a response from RWC to a consumer complaint, that RWC has already released a new version of the Connecter with modifications to account for water content in high chlorine areas, (Am. Compl., Doc. 33 ¶ 62), yet Defendants continue to sell the defective version of the Connector despite the availability of this feasible alternative design, (id. ¶ 64); see (Pls.’ Opp'n to RWC's Mot., Doc. 51 at 17–18) (stating that RWC markets an alternative design but continues to sell the allegedly defective one). Plaintiffs’ allegations with respect to Plaintiff Kuiper further support this point. After Kuiper called RWC to complain about his experiences with the Connecter, plaintiffs allege that the RWC representative he spoke to told him to "purchase the new, alternative water connector hoses from RWC." (Am. Compl., Doc. 33 ¶ 79.)

Relying on several out-of-state cases, Defendants argue that Plaintiffs’ design defect claims should be dismissed because the Connector is not "in an unreasonably dangerous condition" and therefore is not defectively designed. (RWC's Mot., Doc. 49 at 18.) None of the cases Defendants rely on are analogous.

For example, in Cook v. MillerCoors, LLC , 829 F. Supp. 2d 1208 (M.D. Fla. 2011), the court rejected the plaintiffs’ claim that a caffeinated alcoholic beverage was unreasonably dangerous. In so holding, the court found that the manufacturer did not have a duty to warn the plaintiff about the dangers of alcohol because the risks associated with drinking alcohol were "well known." Id. at 1217–18. Here, on the other hand, the risk that water heater connectors can damage consumers’ homes and contaminate their water supplies is not "well known."

Similarly, in Paugh v. R.J. Reynolds Tobacco Co. , 834 F. Supp. 228 (N.D. Ohio 1993), another case cited by Defendants, the court rejected a design defect claim pertaining to cigarettes because "a product is not defective in design if the harm suffered by a plaintiff was caused by a commonly recognized inherent characteristic of the product," id. at 230. Indeed, the court, noted, "The dangers posed by tobacco smoking have long been within the ordinary knowledge common to the community." Id. Again, the same cannot be said of water heater connectors.

And in Oden v. Boston Scientific Corp. , 330 F. Supp. 3d 877 (E.D.N.Y. 2018), which involved an allegedly defective Inferior Vena Cava filter, the court held that the plaintiff's design defect claim failed because the plaintiff did not identify a specific issue with the filter that caused it to be unreasonably dangerous or allege that there was a feasible alternative design, id. at 888–89. Unlike the plaintiff in Oden , Plaintiffs here specifically identify the origin of the defect — the deteriorating rubber lining — and allege that there is a feasible alternative design.

Defendants do not seriously dispute that the Connectors are defective, or at the very least that the issues Plaintiffs identify with the Connectors are problematic. Though Defendants argue that the Connectors successfully fulfilled their purpose of connecting Plaintiffs’ hot and cold-water lines, (Home Depot's Mot., Doc. 48-1 at 28), this argument rings hollow. The Supreme Court of Georgia has squarely rejected that notion that "a manufacturer cannot be liable for injuries proximately caused by a product that functions for its intended use , regardless of the risks associated with the product and its utility to the public or the plaintiff's ability to adduce evidence ... [of] a feasible alternative design[.]" Banks , 450 S.E.2d at 675 (emphasis added). Accordingly, the Court finds that Plaintiffs’ design defect claims survive Defendants’ motions to dismiss.

b. Failure to Warn (Counts 5, 8, 11, 14, 17, 20, 24, and 27)

As with their design defect counts, Plaintiffs raise eight products liability counts based on Defendants’ failure to warn consumers about the Connector's alleged defects — one count for each state where a Plaintiff resides. The Court will analyze these counts under Georgia law as well.⁹ In failure to warn cases, Georgia courts have recognized that "[a] manufacturer and retailer of a product which, to their actual or constructive knowledge, involves danger to users have a duty to give warning of such danger to the purchaser ‘at the time of sale and delivery.’ " Beam v. Omark Indus. , 143 Ga.App. 142, 237 S.E.2d 607, 610 (1977) (quoting Everhart v. Rich's, Inc. , 229 Ga. 798, 194 S.E.2d 425 (1972) ); see Chrysler Corp. , 450 S.E.2d at 211 ("In failure to warn cases, the duty to warn arises whenever the manufacturer knows or reasonably should know of the danger arising from the use of its product."). Unsurprisingly, Plaintiffs’ allegations with respect to this claim largely parallel their negligent failure to warn claim.

9 As is the case with Plaintiffs’ design defect claims, Plaintiffs’ warning defect claims against Home Depot cannot proceed to the extent Plaintiffs rely on a theory of strict liability.

In the Amended Complaint, Plaintiffs allege that Defendants’ duty to warn was triggered because the Connector's "propensity to deteriorate during normal use renders it unreasonably dangerous" and it "fails to perform safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner." (Am. Compl., Doc. 33 ¶¶ 188, 229, 271, 316, 357, 403, 460, 502.) They further allege that they were "entitled to know that [the Connector] was not reasonably safe for its intended and ordinary purpose and use," (id. ¶¶ 185, 226, 268, 313, 354, 400, 457, 499), and "to the extent Defendants contend that [the Connector] did not have a design defect, but could not be used with water that has a high mineral or chlorine content" Defendants had a duty to warn consumers of this fact as well," (id. ¶¶ 191, 232, 274, 319, 361, 406, 463, 506). Finally, Plaintiffs allege that "[t]he failure of Defendants to provide reasonable instructions or warnings made [the Connector] defective and unreasonably dangerous," and "Defendants’ failure to warn of the defective [Connector] caused harm to Plaintiffs and Class members," (id. ¶¶ 192–93, 233–34, 275–76, 320–21, 362–63, 407–08, 464–65, 507–08). These allegations are sufficient to state a warning defect claim.

Though Defendants argue that Plaintiffs’ warning defects claims should fail for essentially the same reasons as their negligent failure to warn claim, and the parties rehash many of the same arguments they made in support of their respective positions on that claim, the Court sees no reason to reach a different result with respect to Plaintiffs’ warning defect claims.

2. Consumer Protection Claims

Having addressed the claims in which Georgia law applies, the Court now turns to Plaintiffs’ consumer protection claims, which are governed by specific statutory schemes in eight different states.

Plaintiffs’ consumer protection claims substantively differ from their common law and tort claims in several respects. In essence, through their consumer protection claims, Plaintiff allege not only that Defendants failed to inform them about the defective condition of the Connector, but also that by doing so Defendants engaged in fraudulent or deceptive business practices by misrepresenting or omitting material information about the nature of the product.

For instance, Plaintiffs allege that RWC "claims and markets its water heater connectors as providing peace of mind" and being "reliable, leak-free, and great for easily connecting hot and cold-water supply lines to a water heater," (id. ¶ 2), whereas in reality, the Connector is defective. Plaintiffs point to language on RWC's website that "touts ‘SharkBite's quality and performance is field-proven with more than 550 million connections’ and it's ‘the only push-to-connect brand that can ensure a clean, leak-free connection.’ " (Id. ¶ 46.) Plaintiffs also state that the Sales & Specifications sheet for the Connector on RWC's website states that the Connector "assures the consumer ‘peace of mind.’ " (Id. ¶ 44 & n.5.) In addition, Plaintiffs reference a YouTube video published by Home Depot entitled "SharkBite Push-to-connect Pipe Fittings & Installation Demo - The Home Depot," which features representatives of both RWC and Home Depot "espousing the merits of the SharkBite Connector and recommending its use to customers." (Id. ¶ 40.)

Plaintiffs allege that Defendants violated each of the consumer protection statutes invoked in the Amended Complaint by "knowingly and intentionally misrepresenting, omitting, concealing, and failing to disclose material facts" about the Connectors. (Id. ¶¶ 170, 214, 254, 299, 340, 386, 427, 442, 486.) They also allege that Defendants’ misrepresentations and omissions were disseminated to them "in a uniform manner," (id. ¶¶ 171, 215, 255, 300, 341, 387, 429, 443, 486), that the misrepresentations were "likely to and, in fact, did deceive reasonable consumers," including themselves, (id. ¶¶ 172, 216, 256, 301, 342, 388, 429, 444, 487), and that but for Defendants’ deceptive acts and practices they would not have purchased the product, (id. ¶¶ 176, 218, 346, 392, 433, 448, 491).

In its motion to dismiss, RWC argues that Plaintiffs’ consumer protection claims should be dismissed because "Plaintiffs have failed to plead the essential element of causation by alleging a connection between the alleged misrepresentations made by RWC and their alleged injuries." (RWC's Mot., Doc. 49 at 30.) RWC argues that the causation element is not satisfied because "[n]one of the Plaintiffs allege that they viewed any statement by RWC prior to their purchase" and they "do not allege they were even aware of RWC's alleged misrepresentations." (Id. at 31.) RWC also notes that "Plaintiffs do not allege that any of them ever visited RWC's website." (Id. at 14.)

In its own motion to dismiss, Home Depot asserts that none of the Plaintiffs were exposed to any purportedly misleading statements from Home Depot specifically, rather than RWC, and that none of the Plaintiffs alleged "that they even spoke to anyone at Home Depot about their purchases." (Home Depot's Mot., Doc. 48-1 at 15.) Home Depot also states that none of the Plaintiffs claim to have viewed the YouTube video in which representatives of RWC and Home Depot jointly appeared. (Id. at 17.)

Plaintiffs counter that they have sufficiently alleged causation because they "have alleged that RWC concealed material facts regarding the Defect, and but for these omissions, Plaintiffs would not have purchased [the Connectors] and suffered the consequences of their failure." (Opp'n to RWC's Mot., Doc. 51 at 13.) And they add that "at minimum, each Plaintiff was exposed to the product label that is affixed to the connector (depicted at paragraph 41 of the Complaint), which omitted material information about the risks posed by the product, including that it disintegrates during normal use and is prone to premature failure." (Id. at 26.)

To determine whether Plaintiffs have stated a claim under each of the state statutes referenced in the Amended Complaint, the Court must look to the text of those statutes and decisions from courts in those states construing the statutory provisions at issue.

a. Arizona Consumer Fraud Act (Count 4) ¹⁰

10 Plaintiffs raise this Count against RWC only.

The Arizona Consumer Fraud Act's ("ACFA") definition of unlawful practice includes "any deception, deceptive or unfair act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely on such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived or damaged thereby[.]." Ariz. Rev. Stat. § 44-1522(A). In support of their ACFA claim, Plaintiffs cite Cheatham v. ADT Corp. , 161 F. Supp. 3d 815 (D. Ariz. 2016), where the court analyzed the provision of the AFCA pertaining to material omissions.

As the court noted in Cheatham , "[a] claim under the ACFA's omission clause ‘requires proof that the omission is material and made with intent that a consumer rely thereon.’ " Id. at 830 (quoting State ex rel. Horne v. AutoZone, Inc. , 229 Ariz. 358, 275 P.3d 1278, 1281 (2012) ). "An omission is material if it is ‘logically related to the transaction in which it occurs and rationally significant to the parties in view of the nature and circumstances of the transaction.’ " Id. (quoting Demaree v. Wal-Mart Stores, Inc. , 511 F. App'x. 660, 661 (9th Cir. 2013) (citing Haisch v. Allstate Ins. Co. , 197 Ariz. 606, 5 P.3d 940, 945 (Ariz. Ct. App. 2000) )).

Applying these standards, the court in Cheatham held that the plaintiff stated a claim under the ACFA's material omission provision when it alleged that the defendant "deliberately failed to disclose the fact that its wireless security system uses an unencrypted protocol," that the omission was "material," and that it was "designed to mislead consumers." Id. at 831.

In support of their own interpretation of the ACFA, Defendants cite Loomis v. U.S. Bank Home Mortgage , 912 F. Supp. 2d 848 (D. Ariz. 2012). In Loomis , the plaintiffs alleged that the defendant violated the ACFA by failing to disclose that mere inquiry into a loan modification program would negatively impact their credit score. Id. at 856. The court dismissed the plaintiffs’ ACFA claim on the ground that "[a] failure to disclose can constitute fraud only if the defendant had a duty to disclose." Id. (quoting Gould v. M & I Marshall & Isley Bank , 860 F.Supp.2d 985, 989 (D. Ariz. 2012) (citing Haisch v. Allstate Ins. Co. , 197 Ariz. 606, 5 P.3d 940, 944 (Ariz. Ct. App. 2000) )). However, the court granted the plaintiffs leave to amend because it recognized that the plaintiffs might be able to plead sufficient facts to establish a duty to disclose on the part of the defendants by amending the complaint. Id. at 857.

In this case, for the reasons already discussed in the context of Plaintiffs’ negligence and warning defect claims, Plaintiffs have sufficiently plead a duty to disclose on the part of Defendants. Moreover, as the court noted in Cheatham , the court in Loomis failed to consider the Arizona Supreme Court's observation that the ACFA "itself imposes [an] actionable duty ... to refrain from ... an ‘omission of material fact with intent that others rely’ thereon." Cheatham , 161 F. Supp. 3d at 831 (quoting State ex rel. Horne , 275 P.3d at 1281 ). And here, like in Cheatham , Plaintiffs have "alleged sufficient factual material" to render plausible their allegations that RWC intentionally omitted material information. Id. That is sufficient to state a claim under the ACFA's omission clause, id. , and Plaintiffs’ ACFA claim therefore survives a motion to dismiss. b. Florida Deceptive and Unfair Trade Practices Act (Count 7)

The Florida Deceptive and Unfair Trade Practices Act ("FUDTPA") declares unlawful "[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce[.]" Fla. Stat. Ann. § 501.204(1) "To state a FUDTPA violation, a plaintiff must allege ‘(1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.’ " Navtech US Surveyors USSA Inc. v. Boat/Us Inc. , No. 2:19-cv-184, 2019 WL 3219667, at *3 (M.D. Fla. July 17, 2019) (quoting Sweeney v. Kimberly-Clark Corp. , No. 8:14-cv-3201, 2016 WL 727173, at *4 (M.D. Fla. Feb. 22, 2016) ).

Plaintiffs cite Gavron v. Weather Shield Mfg., Inc. , 819 F. Supp. 2d 1297 (S.D. Fla. 2011) for the proposition that "to state a claim pursuant to FDUTPA.... a plaintiff must simply prove that an objective reasonable person would have been deceived," id. at 1301 ; see (Pls.’ Opp'n to RWC's Mot., Doc. 51 at 27). In Gavron , where the plaintiff alleged that the defendant made misrepresentations with respect to the doors and windows it sold, the court concluded that the plaintiff stated a claim under the FDUTPA by pleading "facts indicating that Weather Shield made misleading representations that would deceive an objectively reasonable person." 819 F. Supp. 2d at 1301.

But the court in Gavron did not address the causation element of an FDUTPA claim. See id. at 1301 n.3. And in another case Plaintiffs cite, Varner v. Domestic Corp. , No. 16-22482, 2017 WL 3730618 (S.D. Fla. Feb. 7, 2017), the court held that the plaintiffs failed to adequately plead causation because the complaint lacked allegations regarding misrepresentations by the defendant that the plaintiffs "actually heard or read and on which they relied," id. at *15.

The same is true in this case. Thus, the Court concludes that Plaintiffs have failed to state a claim under the FDUTPA.¹¹

11 Defendants alternatively argue that Plaintiffs Kuiper and Montag's FDUTPA claims are time barred; however, the Court need not reach that issue given its finding that Plaintiffs fail to state a claim on this Count.

c. Iowa Private Rights of Action for Consumer Frauds Act (Count 10)

The Iowa Private Right of Action for Consumer Frauds Act ("IPRACFA") makes unlawful "a practice or act [a] person knows or reasonably should know is an unfair practice, deception, fraud, false pretense, or false promise, or the misrepresentation, concealment, suppression, or omission of a material fact, with the intent that others rely upon [the practice or act]." Iowa Code § 714H.3(1). Neither party cites any case law interpreting this provision. Instead, the parties focus on whether a statutory prerequisite in a separate provision of the IPRACFA applies.

Specifically, Defendants argue that Plaintiffs’ class claim under the IPRACFA is barred by Iowa Code § 714H.7, which states that for class actions under that Act to proceed the Iowa Attorney General must first certify that the lawsuit is nonfrivolous. (Home Depot's Mot., Doc. 48-1 at 36.); (RWC's Mot., Doc. 49 at 35–36); see Iowa Code § 714H.7 ("A class action lawsuit alleging a violation of this chapter shall not be filed with a court unless it has been approved by the attorney general. The attorney general shall approve the filing of a class action lawsuit alleging a violation of this chapter unless the attorney general determines that the lawsuit is frivolous."). Relying on In re: FCA US LLC Monostable Electronic Gearshift Litigation , 355 F. Supp. 3d 582 (E.D. Mich. 2018), Plaintiffs respond that this is only a requirement for state class actions, not federal ones, and that federal class actions are instead governed by Rule 23 of the Federal Rules of Civil Procedure. (Pls.’ Opp'n to RWC's Mot., Doc. 51 at 30.) In its Reply, RWC acknowledges that there is a split in authority on whether Rule 23 overrides state law limitations on class actions, but it asserts that the Court should follow "the majority of persuasive authority" and hold that it does not. (RWC's Reply, Doc. 55 at 22 n.7.)

The court need not resolve whether this claim can proceed as a class action at this juncture because "concerns regarding the variations of state law-especially a small minority of states-are more properly considered at the class certification stage." In re ConAgra Peanut Butter Prods. Liab. Litig. , No. 1:07-MD-1845, 2008 WL 2132233, at *4 (N.D. Ga. May 21, 2008). For present purposes, based on the language in the IPRACFA stating that material "omissions" are unlawful when the defendant intends that the consumer rely on those omissions, the Court finds that Plaintiffs have stated a claim for relief under the IPRACFA absent binding authority from Iowa courts dictating a contrary conclusion. Cf. Brown v. La.-Pac. Corp. , No. 4:12-cv-00102, 2013 WL 12044538, at *9 (S.D. Iowa Jan. 18, 2013) (noting that the IPRACFA makes unlawful "unfair or false acts done ‘with the intent that others rely upon’ the unfair practice or misrepresentation" and finding that plaintiff had alleged sufficient facts for the court to infer "that Defendant intended consumers like Plaintiff to rely on its representations as to the proper use and quality of the product").

d. Kansas Consumer Protection Act (Count 13)

The Kansas Consumer Protection Act ("KCPA") states, "No supplier shall engage in any deceptive act or practice in connection with a consumer transaction." Kan. Stat. Ann. § 50-626(a). In relevant part, the KCPA provides that "[d]eceptive acts and practices include, but are not limited to" situations in which a supplier made representations knowingly or with reason to know that "[p]roperty or services have sponsorship, approval, accessories, characteristics, ingredients, uses, benefits or quantities that they do not have," id. § 50-626(b)(1)(A), and "property or services are of particular standard, quality, grade, style or model, if they are of another which differs materially from the representation," id. § 50-626(b)(1)(D). Situations involving "the willful failure to state a material fact, or the willful concealment, suppression or omission of a material fact" also qualify as deceptive acts and practices under the statute. Id. § 50-626(b)(3). Such conduct qualifies as deceptive acts or practices under the KCPA regardless of whether any consumer had in fact been misled. Id. § 50-626(b).

In support of their KCPA claim, Plaintiffs cite McLellan v. Raines , 130 P.3d 1247, 2006 WL 851394 (Kan. Ct. App. 2006). There, the plaintiff raised a KCPA claim after taking possession of property in which water was leaking in the basement. Id. at *1. The court held that the plaintiff qualified as an "aggrieved consumer" under the KCPA, but nevertheless denied the plaintiff's claim on alternative grounds. Id. at *9. RWC cites Weckhorst v. Kansas State University , 241 F. Supp. 3d 1154 (D. Kan. 2017). There, the plaintiff, who was sexually assaulted at a fraternity party, filed a KCPA claim against her University for allegedly misrepresenting that fraternity parties on campus were safe. Id. at 1175. The court held that the plaintiff failed to satisfy the causation requirement for a KCPA claim because "she d[id] not allege that she was aware of, much less relied on, KSU's representations regarding its perception of the safety of its fraternities or its position concerning sexual assaults in fraternities." Id. at 1178. Though she referenced "several alleged statements on KSU's website and in its publications touting its fraternities as safe and fun experiences ... she d[id] not allege that these representations were factors in her decision to attend the fraternity party on April 26, 2014." Id.

In some respects, the flaws with the complaint in Weckhorst equally apply to the operative complaint here. For example, Plaintiffs represent that Defendants made various representations online but do not allege that any of those representations factored into their decisions to buy the Connector. Though Plaintiffs allege that they would not have bought the Connectors but for Defendants’ misrepresentations, they do not allege that they actually saw any of those alleged misrepresentations, or that any of those specific misrepresentations factored into their decisions.

On the other hand, Plaintiffs also allege that Defendants omitted material information, including that the rubber lining inside the Connector was prone to break down in high chlorine areas. The KCPA not only prohibits misrepresentations, but also willful "omissions of a material fact." Kan. Stat. Ann. § 50-626(b)(3). Although the Supreme Court of Kansas has held that the willfulness component of such a claim requires "an intent to harm the consumer, Unruh v. Purina Mills, LLC , 289 Kan. 1185, 221 P.3d 1130, 1138 (2009), Defendants’ failure to warn consumers of the potential harmful effects of their product may satisfy this requirement, id. at 1140–41 (holding that evidence supported jury verdict that the defendant violated the KCPA when it changed the ingredients in its cattle feed and "[n]o warning was given to consumers that this might affect the flowability of the product"). Accordingly, the Court finds that Plaintiffs’ KCPA claim survives Defendants’ motions to dismiss.

e. New Jersey Consumer Fraud Act (Count 16)

Although Plaintiffs raise a claim under the New Jersey Consumer Fraud Act ("NJCFA"), they do not cite to any particular provision of that Act. They do, however, cite one case interpreting the NJCFA, albeit in the context of a class certification motion — Debra F. Fink, D.M.D., MS, PC v. Ricoh Corp. , 365 N.J.Super. 520, 839 A.2d 942 (N.J. Super. Ct. Law Div. 2003). There, the court acknowledged, "The New Jersey Supreme Court has stated that in order to recover damages under NJCFA, a plaintiff must ‘prove that the unlawful consumer fraud caused his loss.’ " Id. at 954 (quoting Cannon v. Cherry Hill Toyota, Inc. , 161 F. Supp. 2d 362, 373–75 (D.N.J. 2001) (quoting Cox v. Sears Roebuck & Co. , 138 N.J. 2, 23, 647 A.2d 454 (1994) )). To do so, plaintiffs in NJCFA cases must present "proof of a causal nexus between the concealment of the material fact and the loss." Id. at 955 (quoting Gennari v. Weichert Co. Realtors , 148 N.J. 582, 607–08, 691 A.2d 350 (1997) ).

Defendants contend that Plaintiffs have not satisfied this requirement. Defendants first cite In re Riddell Concussion Reduction Litigation , 77 F. Supp. 3d 422 (D.N.J. 2015). There, a group of high school football players raised false and deceptive advertising claims under the consumer protection laws of multiple states, including the NJCFA, on the ground that defendants advertised a football helmet "with the purported ability to reduce concussions based on unique concussion reduction technology" that the plaintiffs alleged were actually "no more capable of reducing concussions than other football helmets." Id. at 424. But the court found that, although the plaintiffs alleged that they "were exposed to Defendants’ misrepresentations regarding the purported ability of the Football Helmets to reduce concussions," they did not identify "which specific statement(s), if any, Plaintiffs were exposed to." Id. at 433. The court therefore denied the plaintiffs’ NJCFA claim.

RWC also cites In re Toshiba America HD DVD Marketing & Sales Practices Litigation , Civ. No. 08-939, 2009 WL 2940081 (D.N.J. Sept. 11, 2009). There, the plaintiffs alleged that the defendant made misrepresentations with regard to its marketing of HD DVD players in violation of the NJCFA. Id. at *1. The court found that the plaintiffs failed to establish the causation element to support their claim under the NJCFA because "Plaintiffs fail to allege when [the defendant] made its alleged misrepresentations and when, if ever, the Plaintiffs were exposed to those misrepresentations." Id. at *13.

Here, however, Plaintiffs have alleged that Defendants not only made representations, but also that they concealed materials facts, including, as noted above, that the rubber lining in the Connector was prone to degrade in high chlorine areas. One provision of the NJCFA prohibits "the knowing concealment, suppression, or omission of any material fact with the intent that others rely upon such concealment, suppression or omission." N.J. Stat. Ann. § 56:8-2. Liability attaches under this provision regardless of whether "any person has in fact been misled." Cox , 138 N.J. at 17, 647 A.2d 454. And "[a]n intent to deceive is not a prerequisite to the imposition of liability" under this section. Gennari , 148 N.J. at 605, 691 A.2d 350. Moreover, Plaintiffs allege that they would not have purchased the Connector absent these material omissions. Indeed, this seems like an obvious proposition to the Court, for what reasonable consumer would purchase a product knowing that it may contaminate their water supply and damage their property? So, at least for purposes of a motion to dismiss, in the Court's view, these allegations establish the requisite "causal nexus" between the material facts that were omitted and Plaintiffs’ loss.

RWC also argues that Plaintiffs’ NJFCA claim fails because it is preempted by the New Jersey Product Liability Act ("NJPLA"), which "exclusively govern[s] claims arising out of purportedly defective products." (RWC's Mot., Doc. 49 at 32-34) (citing McDonough v. Bayer Healthcare, LLC , No. 10-442, 2011 WL 2119107, at *2 (D.N.J. May 26, 2011), and Guardavacarro v. Home Depot , No. 16-8796, 2017 WL 3393812, at *3 (D.N.J. Aug. 8, 2017) ). Plaintiffs respond that the NJPLA "do[es] not prohibit a claimant from seeking relief under consumer protection statutes for deceptive, fraudulent, misleading, and other unconscionable commercial practices in the sale of a product." (Pls.’ Opp'n to RWC's Mot., Doc. 51 at 13.) Plaintiffs rely on Sun Chemical Corp. v. Fike Corp. , 243 N.J. 319, 235 A.3d 145 (2020). In that case, the New Jersey Supreme Court declined to hold that the plaintiff's NJCFA claim was preempted by the NJPLA because "irrespective of the nature of the damages, a [NJCFA] claim alleging express misrepresentations -- deceptive, fraudulent, misleading, and other unconscionable commercial practices -- may be brought in the same action as a [NJPLA] claim premised upon product manufacturing, warning, or design defects." Id. at 148. Plaintiffs here plainly allege that Defendants made "deceptive, fraudulent, misleading, and other unconscionable commercial practices," so, at least for purposes of resolving the present motions to dismiss, the Court finds that Plaintiffs’ NJCFA claim is not preempted.

f. New Mexico Unfair Trade Practices Act (Count 19)

Plaintiffs cite a single federal district court decision referencing the New Mexico Unfair Trade Practices Act ("NMUTPA"). The decision Plaintiffs cite, Mulford v. Altria Group, Inc. , 242 F.R.D. 615 (D.N.M. 2007), resolved a motion for class certification and did not address the merits of the plaintiff's NMUTPA claim. However, the Court's own review confirms that the NMUTPA "imposes a duty to disclose material facts reasonably necessary to prevent any statements from being misleading." Smoot v. Physicians Life Ins. Co. , 135 N.M. 265, 87 P.3d 545, 549 (N.M. Ct. App. 2003). For example, the statute includes within its definition of unfair trade practices "failing to state a material fact if doing so deceives or intends to deceive." N.M. Stat. Ann. § 57-12-2(D)(14). Liability under this provision attaches even if the defendant's conduct does not "actually deceive a consumer." Smoot , 87 P.3d at 550.

As noted above, Plaintiffs allege that Defendants failed to state material facts about the Connector. Because the Court could plausibly conclude that these material omissions had a tendency to deceive consumers, Plaintiffs therefore state a claim under the NMUTPA.

g. New York Deceptive Acts and Practices Act (Count 22) and New York False Advertising Act (Count 23)

Plaintiffs rely on two separate New York consumer protection statutes. One of these statutes, New York General Business Law § 349 (" Section 349"), declares unlawful "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service[.]" The second statute, New York General Business Law § 350 (" Section 350"), declares unlawful "[f]alse advertising in the conduct of any business, trade or commerce or in the furnishing of any service[.]"

To state a claim under either of these statutes, "a plaintiff must allege that a defendant has engaged in (1) consumer oriented conduct that is (2) materially misleading and that (3) [the] plaintiff suffered injury as a result of the allegedly deceptive act or practice." Oden , 330 F. Supp. 3d at 901. Although neither statute is subject to a heightened pleading standard under Federal Rule of Civil Procedure 9(b) "a claim for deceptive business practices under [ Section 349 ] or for false advertising under [ Section 350 ] requires [facts illustrating] a causal connection between some injury to plaintiffs and some misrepresentation made by defendants." Id. at 902 (quoting Small v. Lorillard Tobacco Co. , 252 A.D.2d 1, 15, 679 N.Y.S.2d 593 (N.Y. App. Div. 1998) ); see id. ("Plaintiff's cause of action under [ Section 350 ] for false advertising is legally insufficient absent an allegation that he ... knew of defendant's advertising[.]") (quoting Gershon v. Hertz Corp. , 215 A.D.2d 202, 203, 626 N.Y.S.2d 80 (N.Y. App. Div. 1995) ).

Plaintiffs cite Stutman v. Chemical Bank , 95 N.Y.2d 24, 709 N.Y.S.2d 892, 731 N.E.2d 608 (2000). There, the court determined that a $275 bank fee assessed in connection with the refinancing of a homeowner's loan satisfied the causation requirement to state a claim under Section 349, but it still denied the plaintiffs’ claim on the ground that the fee assessment did not constitute a deceptive act. Id. , 709 N.Y.S.2d 892, 731 N.E.2d at 610. By comparison, RWC cites Oden v. Bos. Sci. Corp. , 330 F. Supp. 3d 877 (E.D.N.Y. 2018), a case that was decided in a products liability context more analogous to this case. In Oden , the court noted that "[t]o properly allege causation, a plaintiff must state in his complaint that he has seen the misleading statements of which he complains before he came into possession of the products he purchased." Id. at 902 (quoting Goldemberg v. Johnson & Johnson Consumer Companies, Inc. , 8 F.Supp.3d 467, 480 (S.D.N.Y. 2014) ). The plaintiff there did not sufficiently plead causation because, although the plaintiff referenced statements made by the defendant on its website and in a brochure, there were no allegations that the plaintiff "actually saw these statements" before deciding to purchase the allegedly defective product at issue. Id.

The Court finds Oden persuasive. Just like the plaintiff in Oden , Plaintiffs here do not allege that they "actually saw" the purportedly misleading statements referenced in the operative complaint. Plaintiffs therefore cannot satisfy the causation requirement under Sections 349 and 350 and fail to state a claim under either statute.

h. Ohio Consumer Sales Practice Act (Count 26)

Finally, the Court addresses Plaintiffs’ claim under the Ohio Consumer Sales Practice Act (OCSPA). The OCSPA provides that "[n]o supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction." Ohio Rev. Code Ann. § 1345.02(A). That includes the act or practice of representing "[t]hat the subject of a consumer transaction is of a particular standard, quality, grade, style, prescription, or model, if it is not." Id. § 1345.02(B)(2).

Both sides cite to Marlowe v. Nature's Bounty Co. , 1:17-cv-332, 2017 WL 2291683 (N.D. Ohio May 25, 2017), which clarifies the causation standard under the OCSPA. There, the plaintiff alleged that the defendants sold bottles of vitamins and supplements that misleadingly stated that they contained "free" tablets. Id. at *1. The court opined that to state a claim under the OCSPA, "a plaintiff must show a connection between the defendant's alleged misrepresentation and the plaintiff's injuries." Id. at *2. The court added that a plaintiff "must allege that he or she was aware of the alleged misrepresentation before or during the purchase," and "[w]ithout having seen the alleged misrepresentation, a plaintiff cannot establish the required connection between the misrepresentation and his injuries." Id. The court concluded that the plaintiff failed to state a claim because he "d[id] not allege that he ever saw the ‘more Free’ label or that he was aware of the label at any point during his purchase." Id. at *3. Although the court acknowledged that the plaintiff had alleged that he would not have purchased the product but for the misrepresentations, the court dismissed that allegation as conclusory. Id.

In addition to Marlowe , RWC cites Lilly v. Hewlett-Packard Co. , No. 1:05-cv-465, 2006 WL 1064063 (S.D. Ohio 2006). There, the plaintiff brought an OPSCA claim related to the purchase of a flat screen computer monitor on the ground that defendants represented that the monitor "has characteristics and benefits that it does not have," that it "is of a particular quality when it is not," and that the defendants intended "not to sell it as advertised." Id. at *1, *3. The plaintiff based these claims on allegations that, in addition to selling a defective product, the defendant engaged in deceptive conduct through "misrepresentations in its advertising and its website regarding the monitor's performance, technology, and reliability." Id. at *4. Based on these allegations, the court determined that the plaintiff had failed to satisfy the causation element necessary to state a OPSCA claim. The court noted, "Although the complaint alleges that HP made statements on its website and in its advertisements regarding the qualities of the f1703 monitor, and that Plaintiff purchased a f1703 monitor, the complaint does not establish a connection between the two events." Id. at *5. The court emphasized that "the complaint d[id] not allege that Plaintiff saw or was even aware of the alleged misrepresentations at any time before or during the purchase of the monitor" and that "[t]he mere existence of these alleged misrepresentations on HP's website and in its advertising, without more, cannot reasonably be considered to have caused Plaintiff any harm even if the monitor was defective as he claims." Id.

The Court finds Marlowe and Lilly to be analogous. And, based on the current pleadings, the Court concludes that Plaintiffs have failed to satisfy the causation element of their OCSPA claim. Because the Court finds that Plaintiffs fail to State an OCSPA claim on the pleadings, the Court need not address Defendants’ alternative arguments for dismissing this claim based on preemption and failure to satisfy a statutory prerequisite.

V. Conclusion

For the foregoing reasons, Defendant Home Depot U.S.A., Inc.’s Motion to Dismiss [Doc. 48] and Defendant Reliance Worldwide Corporation's Motion to Dismiss [Doc. 49] are GRANTED IN PART and DENIED IN PART . The Court GRANTS Defendants’ motions to dismiss Count 3 to the extent Plaintiffs allege that Home Depot breached the implied warranty of fitness for a particular purpose, and Plaintiffs’ consumer protection claims in Counts 7, 22, 23, and 26 of the Amended Complaint. Defendants’ motions are DENIED with respect to the remaining Counts.

By way of closing, the Court notes that it harbors doubts about whether it will be practical to resolve all of Plaintiffs’ claims in the manner in which they are currently plead, particularly in light of Plaintiffs’ choice to raise claims under consumer protection statutes in eight different states other than Georgia and their intent to represent multiple subclasses of consumers in each of these states. The Court urges Plaintiffs to consider how best to streamline their claims before the Court reaches the class certification stage. Toward that end, the Court directs the parties to participate in a Status Conference on OCTOBER 7, 2021 at 2:30 P.M. by video conference.¹² Counsel are directed to advise the Court of their availability to participate by SEPTEMBER 29, 2021 at 1:00 P.M. Discovery shall commence immediately.

12 In their opposition to RWC's motion to dismiss, Plaintiffs requested that the Court grant them leave to amend the operative complaint in the event that the Court grants RWC's motion to dismiss "in any part." (Pls.’ Opp'n to RWC's Mot., Doc. 51 at 44 n.12.) The Court will not grant Plaintiffs leave to amend their complaint at this time, but Plaintiffs should be prepared to discuss how they would propose to amend their complaint in the upcoming Status Conference.

IT IS SO ORDERED this 27th day of September, 2021.