This Court finds truth in Plaintiffs' assertion that many of the cases relied on by Tropicana to refute Plaintiffs' claim of reasonable expectations involve representations that rise to a level beyond those made by Tropicana. See In re Sony HDTV Television Litig., 758 F. Supp. 2d 1077, 1089 (S.D. Cal. 2010) (wherein defendants claims that its televisions were of "superior" or "high" quality were considered "mere puffery" and did not create a reasonable expectation); Hemy v. Perdue Farms, Inc., Civ. No. 11-888, 2011 WL 6002463 (D.N.J. Nov. 30, 2011) (finding Plaintiffs could not claim a reasonable expectation that they believed that defendant's chickens were humanly slaughtered based on defendants' representations they were "humanely raised"); In re Toshiba Am. HP DVD Mktg. & Sales Practices Litig., Civ. No. 08-939, 2009 WL 294008, at *9 (D.N.J. Sept. 11, 2009) (finding defendant's representations that HD DVD was format for today, tomorrow, and beyond" to be "mere puffery," insufficient to establish plaintiffs reasonable expectation that defendants would continue to manufacture the product indefinitely); Rooney v. Cumberland Packing Crop., Civ. No. 12-0033, 2012 WL 1512106, at *4 (S.D. Cal. Apr. 16, 2012) (plaintiffs were not reasonable in their expectations that defendant's product contained unprocessed, unrefined sugar, where the box "repetitively and clearly indicate[d] that the product contained] pure natural cane turbinado sugar"). In addressing FDA regulations, courts have ruled that "reasonable consumers should [not] be
Courts applying New Jersey law routinely take this approach. See, e.g., Union Ink Co., Inc. v. AT&T Corp., 352 N.J.Super. 617, 645 (App. Div. 2002); New Hope Pipe Liners, LLC v. Composites One, LCC, 2009 WL 4282644, at *5 (D.N.J. Nov. 30, 2009); Hemy v. Perdue Farms, Inc., 2011 WL 6002463, at *21 (D.N.J. Nov. 30, 2011); Peruto v. TimberTech Ltd., 126 F.Supp.3d 447, 453-59 (D.N.J. 2015); cf. Pai v. DRX Urgent Care, LLC, 2014 WL 837158, at *12 (D.N.J. Mar. 4, 2014); Hurdleston v. New Century Fin. Servs., 629 F.Supp.2d 434, 443-44 (D.N.J. 2009). 1. New Jersey Cases Applying New Jersey Law
Barry v. Stryker Corp., No. CV 20-1787-RGA-SRF, 2023 WL 2733652, at *8 (D. Del. Mar. 20, 2023), report and recommendation adopted, No. CV 20-1787-RGA, 2023 WL 3224498 (D. Del. May 3, 2023) (requiring heightened pleadings where “[a] counterclaim or affirmative defense [] alleges fraudulent conduct”); Hemy V. Perdue Farms, Inc., No. 11-888, 2011 WL 6002463, at *17 n. 11 (D.N.J. Nov.30, 2011) (holding that Rule 9(b) is triggered by allegations of “misleading conduct”). The same applies here where SMA has alleged that “Tigo willfully misled SunSpec Alliance members.” D.I. 20, ¶ 176.
Thiedemann v. Mercedes-Benz USA, LLC, 872 A.2d 783, 792-93 (N.J. 2005); see also Hemy v. Perdue Farms, Inc., Civ. A. No. 11-00888, 2011 WL 6002463, at *18 (D.N.J. Nov. 30, 2011) (“To plead ascertainable loss under the NJCFA, a plaintiff must allege loss that is ‘quantifiable or otherwise measurable.
. The Court finds, as VGA asserts, (ECF 53-1 at 8), that without having purchased a class vehicle, Gunnel Lowegard cannot satisfy the injury-in-fact requirement necessary for standing, see Hemy v. Perdue Farms, Inc., No. 11-888, 2011 WL 6002463, at *11 (D.N.J. Nov. 30, 2011) (“[W]ithout asserting that they purchased ‘Perdue' brand products, Plaintiffs have failed to sufficiently allege an injury-in-fact with respect to those products.”)
MSPRC makes no such allegations of consciousness of guilt, but merely make bald assertions that the Manufacturer Defendants had knowledge of the NDMA contamination. See Hemy v. Perdue Farms, Inc., No. 11-888, 2011 WL 6002463, at *13 (D.N.J. Nov. 30, 2011) (“A complaint must do more than assert generalized facts, it must allege facts specific to the plaintiff.”). The Court therefore grants the Defendants' Motions as to Count Eight.
(See D.I. 32 at 23-27; D.I. 34 at 23-27; D.I. 35 at 8-11) Under New Jersey law, for example, "a breach of express warranty claim has four elements: '(1) a contract between the parties; (2) a breach of that contract; (3) damages flowing therefrom; and (4) that the party stating the claim performed its own contractual obligations.'" Hemy v. Perdue Farms, Inc., 2011 WL 6002463, at *23 (D.N.J. Nov. 30, 2011) (quoting Frederico v. Home Depot, 507 F.3d 188, 203 (3d Cir. 2007)). i. Experiencing the Defect and Seeking Repairs
. See also Cox, 2015 WL 5771400, at *15 (citing Lieherson, 865 F. Supp. 2d at 537; Green v. Green Mountain Coffee Roasters, Inc., 279 F.R.D. 275, 280 (D.N.J.2011); Hemy v. Perdue Farms. Inc., No. 11-888, 2011 WL 6002463, at *11 (D.N.J. Nov. 30, 2011)). In a second line of cases, courts "have refused to dismiss claims for products that the named plaintiffs did not buy themselves."
To satisfy this standard, the plaintiff must plead or allege the "who", "what", "when", "where", and "how" of the events at issue. See Hemy v. Perdue Farms Inc., No. 11-888, 2011 WL 6002463, at *13 (D.N.J. Nov. 30, 2011) ("[T]he plaintiff must plead or allege the date, time, and place of the alleged fraud or otherwise inject precision or some measure of substantiation into a fraud allegation.").
As such, a plaintiff '"must proffer evidence of a loss that is not hypothetical or illusory' and that is 'presented with some certainty demonstrating that it is capable of calculation.'" Id. (quoting Thiedemann, 872 A.2d at 792-93); see also Hemy v. Perdue Farms, Inc., 2011 WL 6002463, at *18 (D.N.J. Nov. 30, 2011) (holding that the allegation that plaintiff was charged a "premium," by itself, does not support a claim for an ascertainable loss). Plaintiffs have alleged that they were misled as to the difference between the benchmark prices and the "true prices" of the medications.