Wegmans memorandum in support of motion to dismiss complaint

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARTCHELA POPOVA MLADENOV, MLADEN MLADENOV, CHAN M. MAO, on behalf of themselves and those similarly situated,

(Electronically Filed)

Plaintiffs, CIVIL ACTION

v. Civil Action No. 4789-14

WEGMANS FOOD MARKETS, INC.,

Defendant.

DEFENDANT WEGMANS FOOD MARKETS, INC.’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS THE AMENDED COMPLAINT

PEPPER HAMILTON LLP (A Pennsylvania Limited Liability Partnership) Suite 400 301 Carnegie Center Princeton, NJ 08543-5276 Ph: (609) 452-0808 Fx: (609) 452-1147 Attorneys for Defendant Wegmans Food Markets, Inc.

On the brief:

Matthew V. DelDuca Angelo A. Stio III

Case 1:15-cv-00373-JEI-AMD Document 13-1 Filed 04/09/15 Page 1 of 25 PageID: 83

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TABLE OF CONTENTS

Page

I. INTRODUCTION ..................................................................................................................... 1

II. STATEMENT OF FACTS ........................................................................................................ 3

III. LEGAL ARGUMENT .............................................................................................................. 5

A. THE FIRST COUNT OF THE AMENDED COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFFS FAIL TO ADEQUATELY PLEAD A VIOLATION OF THE NEW JERSEY CONSUMER FRAUD ACT .............................................................................................................................. 5

1. The CFA Claim Must Be Dismissed because Plaintiffs Fail to Plead Consumer Fraud with Heightened Particularity. .............................................. 6

2. The CFA Claim Must Be Dismissed because Plaintiffs Fail to Allege the Essential Elements of a CFA Claim. .......................................................... 7

3. The CFA Claim Fails as a Matter of Law because Plaintiffs Fail to Allege the Essential Element of an Ascertainable Loss. .................................. 8

4. The CFA Claim Fails as a Matter of Law Because Plaintiffs Fail to Allege the Essential Element of a Causal Nexus Between Wegmans’ Conduct and any Ascertainable Loss. ............................................................ 10

B. THE SECOND COUNT OF THE AMENDED COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFFS FAIL TO SUFFICIENTLY ALLEGE BREACH OF AN EXPRESS WARRANTY ............................................. 12

C. PLAINTIFFS’ CLAIM FOR A DECLARATORY JUDGMENT IN THE THIRD COUNT SHOULD BE DISMISSED BECAUSE NO ACTIVE CASE IN CONTROVERSY EXISTS AND EVEN IF IT DID PLAINTIFFS HAVE OTHER REMEDIES AVAILABLE .............................................................. 14

D. PLAINTIFFS’ CLAIM FOR AN INJUNCTION IN THE THIRD COUNT SHOULD BE DISMISSED BECAUSE PLAINTIFFS FAIL TO PLEAD THE ELEMENTS OF INJUNCTIVE RELIEF .......................................................... 16

E. THE FOURTH COUNT OF THE AMENDED COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFFS FAIL TO ALLEGE THEIR TCCWNA CLAIM IS BASED ON AN ESTABLISHED LEGAL RIGHT .............. 17

F. ALL CLAIMS PLAINTIFFS SEEK TO ASSERT ON BEHALF OF THE SUBCLASS MUST BE DISMISSED BECAUSE PLAINTIFFS LACK STANDING TO PURSUE THOSE CLAIMS ............................................................ 19

IV. CONCLUSION ....................................................................................................................... 20


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TABLE OF AUTHORITIES

Page(s) CASES

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937) ....................................................................15

Arcand v. Brother Intern. Corp., 673 F.Supp.2d 282 (D.N.J. 2009) .........................................6, 10

Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) .......................................................................................14

ATD-American Co. v. Krueger Int'l, Inc., No. 12-00032, 2012 U.S. Dist. LEXIS 55650 (E.D. Pa. Apr. 19, 2012) ..........................................................................................................16

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ...................................................................14

Bennett v. Correctional Medical Services, Inc., 2008 U.S. Dist. LEXIS 39020 (D.N.J. May 14, 2008) ..........................................................................................................................12

Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 964 A.2d 741 (2009) .....................................7, 10

Cent. Reg’l Emples. Benefit Fund v. Cephalon, Inc., 2010 U.S. Dist. LEXIS 29677 (D.N.J. Mar. 29, 2010) .............................................................................................................18

Cipollone v. Liggett Grp., Inc., 893 F.2d 541 (3d Cir. 1990) ........................................................13

Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98 (1971) ....................................15

Dewey v. Volkswagen AG, 558 F. Supp. 2d 505 (D.N.J. 2008) ...............................................10, 11

DuPree v. U.S., 559 F.2d 1151 (9th Cir. 1977) .............................................................................19

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (U.S. 2006) ....................................................16

Ensey v. Gov't Emplrs. Ins. Co., 2013 U.S. Dist. LEXIS 159373 (D.N.J. Nov. 7, 2013) .............18

Fancaster, Inc. v. Comcast Corp., 832 F. Supp. 2d 380 (D.N.J. 2011) .........................................16

Fleisher v. Fiber Composites, LLC, No. 12-1326, 2012 U.S. Dist. LEXIS 157343 (E.D.Pa. Nov. 2, 2012) .................................................................................................10, 12, 13

In re Franklin Mutual Funds Fee Litigation, 388 F.Supp.2d 451 (D.N.J. 2005) ..........................12

Franulovic v. Coca-Cola Co., No. 07-539/07-828 2007 U.S. Dist. LEXIS 79732 (D.N.J. Oct. 25, 2007) ............................................................................................................................8

Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007) .........................................................5, 6, 7


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Fust v. Einstein Moomjy, Inc., 182 N.J. 1 (2004) ............................................................................8

Galerie Gmurzynska v. Hutton, 257 F. Supp. 2d 621 (S.D.N.Y. 2003) ........................................16

Glover v. State Farm Fire & Cas. Co., 984 F.2d 259 (8th Cir. 1993) ...........................................15

Gotthelf v. Toyota Motor Sales, U.S.A., Inc., No. 10-4429, 2012 U.S. Dist. LEXIS 62045 (D.N.J. May 3, 2012) .........................................................................................................10, 11

GSC Partner CDO Fund v. Washington, 368 F.3d 228 (3d Cir. 2004) ...........................................6

Healthpoint, Ltd. v. Ethex Corp., 273 F. Supp. 2d 817 (W.D. Tex. 2001) ....................................18

Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124 (3d Cir. 2000) .........................12

Independent Realty Co. v. Twp. of North Bergen, 376 N.J. Super. 295 (App. Div. 2005) ............15

Motley v. Homecomings Fin., LLC, 557 F. Supp. 2d 1005 (D. Minn. 2008) ................................15

Mutual Pharmaceuticals Co. v. Ivax Pharmaceuticals, Inc., 459 F. Supp. 2d 925 (C.D. Cal. 2006) .................................................................................................................................18

New Jersey Tpk. Auth. v. Parsons, 3 N.J. 235 (1949) ....................................................................15

Parker v. Howmedica Osteonics Corp., No. 07-02400, 2008 U.S. Dist. LEXIS 2570 (D.N.J. Jan. 14, 2008) ......................................................................................................8, 9, 10

Payan v. GreenPoint Mortg. Funding, Inc., 681 F.Supp.2d 564 (D.N.J.2010) ...............................7

Perkins v. AT&T Mobility, LLC, No. 10-6429, 2011 U.S. Dist. LEXIS 16614 (D.N.J. Feb. 17, 2011) ..................................................................................................................................17

In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283 (3d Cir. 1998) ........................................................................................................................................19

In re Riddell Concussion Reduction Litig., 2015 U.S. Dist. LEXIS 4996 (D.N.J. Jan. 15, 2015) ....................................................................................................................................7, 10

Rivera v. Wash. Mut. Bank, 637 F. Supp. 2d 256 (D.N.J. 2009) ...................................................17

Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644 (3d Cir. 1998) ....................................6

Sauro v. L.A. Fitness Int'l, LLC, No. 12-3682, 2013 U.S. Dist. LEXIS 58144 (D.N.J. Feb. 13, 2013) ............................................................................................................................17, 18

In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235 (3d Cir. 2012) .................................................................................................................................19

Skypala v. Mortg. Elec. Registration Sys., 655 F. Supp. 2d 451 (D.N.J. 2009) ............................17


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Smajlag v. Campbell Soup Co., 782 F. Supp. 2d 84 (D.N.J. 2011) ...............................................12

Solo v. Bed Bath & Beyond, Inc., No. 06-1908, 2007 U.S. Dist. LEXIS 31088 (D.N.J. Apr. 26, 2007) ..................................................................................................................8, 9, 10

Sosna v. Iowa, 419 U.S. 393, 403, 95 S. Ct. 553 (1975) ...............................................................19

Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d 643 (3d Cir. 1990) ........................................14

Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234 (2005) .....................................................8

In re Toshiba Am. HD DVD Mktg. & Sales Practices Litig., Civ. 08-939 (DRD), 2009 U.S. Dist. LEXIS 82833 (D.N.J. Sept. 11, 2009) ......................................................................7

Viking Yacht Co. v. Composites One LLC, 496 F.Supp.2d 462 (D.N.J. 2007) ..............................12

Watkins v. DineEquity, Inc., 591 Fed. Appx. 132 (3d Cir. 2014) ..................................................17

Wellness Publ. v. Barefoot, 2008 U.S. Dist. LEXIS 1514 (D.N.J. Jan. 8, 2008)...........................18

Wells ex rel. J.W. v. Allergan, Inc., 2013 U.S. Dist. LEXIS 13191 (W.D. Okla. Jan. 31, 2013) ........................................................................................................................................18

Winer Family Trust v. Queen, 503 F.3d 319 (3d Cir. 2007) ..........................................................19

Won Kyung Hwang v. Ohso Clean, Inc., 2013 U.S. Dist. LEXIS 54002 (N.D. Cal. Apr. 16, 2013) ..................................................................................................................................18

Wyatt, Virgin Islands, Inc. v. Gov’t of the Virgin Islands, 385 F.3d 801 (3d Cir. 2004) ...............15

Zimmerman v. HBO Affiliates, 834 F.2d 1163 (3d Cir. 1987) .......................................................19


I. INTRODUCTION

Plaintiffs are pursuing this putative class action against Wegmans Food Markets,

Inc. (“Wegmans”) based on allegations that Wegmans utilized false and misleading advertising

in the sale of bread and bakery products. Plaintiffs claim Wegmans utilized a sign or signs

stating “STORE BAKED ROLLS” and website language stating “Bread, fresh baked” and “In-

Store Baked” and these signs and language mislead consumers into believing that certain of

Wegmans’ bread and bakery products – not just rolls or bread – were freshly baked or made

from scratch. Plaintiffs claim that the use of this language was false and misleading and

constituted a violation of the New Jersey Consumer Fraud Act (“CFA”), a violation of the Truth

In Consumer Contract Warranty and Notice Act (“TCCWNA”) and a breach of certain express

warranties that Wegmans allegedly made.

Plaintiffs originally filed a Complaint on December 14, 2014, but then filed an

Amended Complaint on March 12, 2015 in order to add allegations related to Wegmans’ website

and to assert a TCCWNA claim. Plaintiffs’ amendments to add new language and a new claim

do not save the Amended Complaint from dismissal. As set forth below, the Amended

Complaint should be dismissed on the following four grounds. First, Plaintiffs’ CFA claim in

the First Count of the Amended Complaint must be dismissed under Rule 12(b)(6) because

Plaintiffs have not pled the essential elements of an ascertainable loss or causal relationship to

give rise to a cognizable CFA claim. Also, Plaintiffs do not even attempt to comply with Rule

9(b) by pleading their CFA claim with the requisite particularity necessary to put Wegmans on

notice of the factual basis for the CFA claim. Numerous courts have dismissed undeveloped

CFA claims like the one that Plaintiffs seek to assert here. The result in this case should be no

different.


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Second, Plaintiffs’ breach of warranty claim in the Second Count of the Amended

Complaint must be dismissed because the allegations are implausible and fail to comply with

Rule 8. As explained in this brief, Plaintiffs do not sufficiently allege that they were exposed to

either a sign stating “STORE BAKED ROLLS” or Wegmans’ website language stating “Bread,

fresh baked” or “In-Store Baked,” such that these alleged representations became a warranty

with regard to all bread and bakery products sold in Wegmans stores. Moreover, Plaintiffs’

failure to allege that they actually purchased products that were not otherwise store baked,

renders the breach of express warranty claims unsustainable. Specifically, in the absence of such

allegations Plaintiffs cannot show that any product they purchased failed to comply with a

purported warranty.

Third, Plaintiffs’ Declaratory Judgment Act claim in the Third Count of the

Amended Complaint is subject to dismissal because no active case or controversy exists to give

rise to such a claim. Moreover, even if an active case or controversy existed and was pled

properly, the claim still must be dismissed because the relief sought is duplicative of the relief

available under the CFA, the breach of express warranty claim, and the TCCWNA claim.

Accordingly, because the relief sought in the Third Count is duplicative of relief available in

other counts of the Amended Complaint, the Third Count cannot survive this motion.

Fourth, in the Fourth Count of the Amended Complaint Plaintiffs assert a claim

under the TCCWNA on the theory that Wegmans violated their clearly established legal rights

under the CFA. Since the CFA claim cannot be sustained, Plaintiffs have not adequately alleged

the violation of a clearly established legal right to give rise to a cognizable TCCWNA claim and

therefore this count must be dismissed.


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Finally, in addition to the dismissal of all their individual claims, this Court can

dismiss and/or strike all claims Plaintiffs seek to assert on behalf of the subclass of consumers

that are alleged in paragraph 26 of the Amended Complaint “who purchased bread and/or bakery

products . . . using a credit card [or] debit card on or after December 14, 2008.” Nowhere in the

Amended Complaint do any of the named Plaintiffs allege they purchased bread and/or bakery

products from Wegmans using a credit card or debit card. Accordingly, because Plaintiffs do not

have any claim related to a credit or debit card purchase, they lack standing to pursue such

claims on behalf of a class.

II. STATEMENT OF FACTS1

Plaintiffs Martchela Popova Mladenov, Mladen Mladenov, and Chan M. Mao

(“Plaintiffs”) purport to be residents of Burlington County and Camden County, New Jersey and

are pursuing this putative class action against Wegmans on behalf of themselves and a class

defined as:

All individuals and entities within the State of New Jersey who purchased bread and/or bakery products advertised and sold as “store baked” and/or “fresh baked” in a Wegmans store located in New Jersey on or after December 14, 2008.

(Amd. Cmpl. ¶ 25).

Plaintiffs also contend that they also are pursuing this class action against

Wegmans on behalf of a sub-class defined as:

1 This memorandum of law sets forth the facts as asserted in the Amended Complaint. For purposes of this

motion only, Wegmans accepts the facts as true. In accepting these facts as true, Wegmans is not admitting the truth of any of Plaintiffs’ allegations and reserves the right to deny the truth of the factual allegations.


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All individuals and entities within New Jersey who purchased bread and/or bakery products advertised and sold as “store baked” and/or “fresh baked” in a Wegmans store located in New Jersey, using a credit card, debit card on or after December 14, 2008,

(Amd. Cmpl. ¶ 26).2

In the Amended Complaint, Plaintiffs claim Wegmans “is in the business of

manufacturing, distributing, marketing, advertising, and selling of various bread and bakery

goods, including but not limited to bread, bagels, croissants, cookies, cakes, pies, muffins and

rolls.” (Amd. Cmpl., ¶ 11). Plaintiffs claim further that Wegmans has seven stores in New

Jersey and these stores “display in-store signs such as ‘STORE BAKED ROLLS’” and that

Wegmans maintains a website that advertises and lists various types of bread and bakery

products under the category “Bread, Fresh Baked” or “In-Store Baked.” (Amd. Cmp. ¶¶ 13, 14).

Plaintiffs contend these in-store signs and Wegmans’ website “suggest that the products are

“made in store and/or they are fresh.” (Amd. Cmpl. ¶ 14). Plaintiffs claim further these alleged

signs and this advertising “harms consumers because it falsely advertises the product as ‘store

baked’ and/or ‘fresh’ and/or made from scratch.” (Amd. Cmp. ¶ 18).

Despite acknowledging throughout the Amended Complaint that only “certain”

(Amd. Cmp. ¶¶ 30a, 30b, 30e, 30g, 68), “some” (Amd. Cmp. ¶ 46) or “many” bakery products

(Amd. Cmp. ¶ 45) are not baked in store, Plaintiffs fail to allege they actually purchased one of

the products not baked in store. In fact, Plaintiffs fail to identify any specific products that they

ever purchased from Wegmans. To make matters worse, Plaintiffs fail to allege they made any

purchase from Wegmans using a credit card or debit card, or that they actually saw a Wegmans

2 The classes Plaintiffs seek to represent appear to include anyone who purchased loaves of bread and/or

bakery products irrespective of whether those products relate to the challenged sign and irrespective of whether the products were baked in store.


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sign stating “STORE BAKED ROLLS” or viewed Wegmans’ website before they allegedly

purchased any bread or bakery product from Wegmans.

Undeterred by the absence of well-pled allegations, Plaintiffs are pursuing claims

for violations of the CFA (First Count) and TCCWNA (Fourth Count), breach of express

warranties (Second Count), and for a declaratory judgment (Third Count) on behalf of a class

and subclass of New Jersey consumers. Among other things, Plaintiffs are seeking to recover “a

refund of all money spent on the purchase of the bread and bakery products,” and/or “damages[]

equal to the amount of money they spent for the Bakery Products,” and/or statutory damages

under the CFA and TCCWNA. (Amd. Cmp. ¶¶ 50, 79, 80).

Wegmans’ motion to dismiss the Amended Complaint now follows.

III. LEGAL ARGUMENT

A. THE FIRST COUNT OF THE AMENDED COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFFS FAIL TO ADEQUATELY PLEAD A VIOLATION OF THE NEW JERSEY CONSUMER FRAUD ACT

In the First Count of the Amended Complaint Plaintiffs are pursuing a CFA claim

purportedly on the basis that Wegmans signs and certain product descriptions on Wegmans’

website “suggest that [Bakery Products] were made in store.” (Amd. Cmp. ¶ 44). Plaintiffs

contend the posted signs and website product descriptions “mislead consumers and lead them to

believe that Defendants’ products were made in store when in fact many of Defendant’s products

are made elsewhere” and that they suffered an ascertainable loss “equal to the amount of money

they spent on the bread and bakery products.” (Amd. Cmp. ¶¶ 45, 48). The generalized

allegations Plaintiffs rely on for the CFA claim fall well short of meeting the heightened

pleading standards under Rule 9(b) and fail to state a CFA claim under Rule 12(b)(6).


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1. The CFA Claim Must Be Dismissed because Plaintiffs Fail to Plead Consumer Fraud with Heightened Particularity.

It is well-established that claims under the CFA must meet the heightened

pleading requirements of Rule 9(b). See, e.g., Frederico v. Home Depot, 507 F.3d 188, 200 (3d

Cir. 2007); Arcand v. Brother Intern. Corp., 673 F. Supp. 2d 282 (D.N.J. 2009). To satisfy this

standard a plaintiff

must state the circumstances of the alleged fraud with sufficient particularity to place the defendant on notice of the 'precise misconduct with which [it is] charged.' To satisfy this standard, the 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.’ Frederico, 507 F.3d at 200.

In other words, at a minimum, a plaintiff must support allegations of consumer

fraud with all the essential factual background that would accompany the first paragraph of any

newspaper story -- that is, the “who, what, when, where and how’ of the events at issue.” GSC

Partner CDO Fund v. Washington, 368 F.3d 228, 239 (3d Cir. 2004). Indeed, a complaint

alleging consumer fraud must do more than assert generalized facts; it must allege facts specific

to each plaintiff. Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 658-59 (3d Cir.

1998), abrogated on other grounds, 528 U.S. 549 (2000). And, when facts specific to a plaintiff

are not plead, the complaint is subject to dismissal. Id. (upholding the dismissal of a Complaint

that did not allege “what actually happened to either” of the plaintiffs).

Here, the CFA claim does not come close to satisfying the heightened pleading

requirements under Rule 9(b) and must be dismissed. Nowhere in the Complaint do Plaintiffs

allege specifics as to what happened to them. The Amended Complaint does not allege specific

products that were purchased, when they were purchased, how they were purchased, the location

from which purchases were allegedly made, the specific amounts that were paid for the products,

or even whether any Plaintiff paid a specific premium for the alleged products they purportedly


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purchased. Moreover, the Amended Complaint fails to allege that any Plaintiff read a sign or

viewed a website description before a purchase occurred. Instead, the Amended Complaint

contains a hodgepodge of generalized allegations about certain products that may or may not be

store baked and may or may not have been purchased by them. These generalized facts do not

put Wegmans on notice of the alleged fraud at issue and fail to satisfy the heightened pleading

that Rule 9(b) requires. Indeed, the allegations in this case about alleged misrepresentations and

an alleged price premium that was paid for products are no different than the allegations in

In re Riddell Concussion Reduction Litig., No. 13-7585, 2015 U.S. Dist. LEXIS 4996 (D.N.J.

Jan. 15, 2015) and In re Toshiba Am. HD DVD Mktg. & Sales Practices Litig., No. 08-939, 2009

U.S. Dist. LEXIS 82833 (D.N.J. Sept. 11, 2009), where Courts dismissed CFA class actions on

the basis that the Plaintiffs failed to provide sufficient details concerning their product purchases.

Thus, for this reason alone, the First Count of the Amended Complaint must be dismissed under

Rules 9(b).

2. The CFA Claim Must Be Dismissed because Plaintiffs Fail to Allege the Essential Elements of a CFA Claim.

To state a prima facie case under the CFA, a plaintiff must plead three elements:

(1) unlawful conduct by the defendant; (2) an ascertainable loss; and (3) a causal connection

between the defendant’s unlawful conduct and the plaintiff’s ascertainable loss. Payan v.

GreenPoint Mortg. Funding, Inc., 681 F. Supp. 2d 564, 572 (D.N.J. 2010) (citing Bosland v.

Warnock Dodge, Inc., 197 N.J. 543, 964 A.2d 741, 749 (2009)). Unlawful practices under the

CFA fall into three general categories: affirmative acts, knowing omissions, and regulation

violations. Frederico v. Home Depot, 507 F.3d at 202 (3d Cir. 2007). Plaintiffs’ claim here only

relates to affirmative misrepresentations and the allegations are therefore tested as to whether the


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elements of a claim are adequately plead as to each of the named Plaintiffs. As set forth below,

they are not and the claim is subject to dismissal.

3. The CFA Claim Fails as a Matter of Law because Plaintiffs Fail to Allege the Essential Element of an Ascertainable Loss.

Plaintiffs’ CFA claim premised on misrepresentations fails and is subject to

dismissal because Plaintiffs fail to adequately plead the essential element of an ascertainable

loss. Under New Jersey law, it is well recognized that a CFA claim cannot proceed in the

absence of a showing of an actual loss. See Franulovic v. Coca-Cola Co., No. 07-539/07-828

2007 U.S. Dist. LEXIS 79732, at *19, *22, *24, *31 (D.N.J. Oct. 25, 2007) (dismissing

plaintiffs' respective CFA claims because one plaintiff only offered “conclusory statements that

she and other consumers have suffered an ‘ascertainable loss’” and the other’s Amended

Complaint was “‘unclear [as to] what, if any, cognizable and calculable claim of loss due to the

alleged CFA violation' [plaintiffs] suffered’); Solo v. Bed Bath & Beyond, Inc., No. 06-1908,

2007 U.S. Dist. LEXIS 31088, *10-11 (D.N.J. Apr. 26, 2007) (finding that plaintiff's Amended

Complaint failed to state a claim under the CFA because it did not “plead specific facts setting

forth and defining the ascertainable loss suffered”).

In order to state a cognizable CFA claim, courts require the plaintiff to identify

through particularized pleading an actual loss that is “quantifiable or measurable” and

“calculated within a reasonable degree of certainty.” Thiedemann v. Mercedes-Benz USA, LLC,

183 N.J. 234, 248 (2005). Moreover, courts have found that as a matter of law, the purchase

price of a product alone cannot represent the ascertainable loss. See Parker v. Howmedica

Osteonics Corp., No. 07-02400, 2008 U.S. Dist. LEXIS 2570, at *11-12 (D.N.J. Jan. 14, 2008);

Fust v. Einstein Moomjy, Inc., 182 N.J. 1, 13 (2004)(“the purchase price neither represents the

true value of the carpet nor plaintiff’s ascertainable loss.”).


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Here, Plaintiffs’ allegations of ascertainable loss are insufficient to support a CFA

claim. Plaintiffs contend that their ascertainable loss is “equal to the amount of money they

spent on breads and bakery products that they would not have purchased had the accurate

information been properly disclosed to them,” (Amd. Cmp. ¶ 48), and Plaintiffs readily admit

they are seeking “a refund,” (Amd. Cmp. ¶ 50). In other words, Plaintiffs claim their

ascertainable loss is equal to the purchase price, which, as found in this Court’s decision in

Parker, is insufficient to establish an ascertainable loss. Parker, 2008 U.S. Dist. LEXIS 2570 at

*11-12.

This Court’s decision in Solo, 2007 U.S. Dist. LEXIS 31088 is directly on point

and further demonstrates that Plaintiffs’ CFA claim must be dismissed. In Solo, a plaintiff

sought to pursue a CFA claim on behalf of a proposed class of consumers that purchased multi-

ply bed linens. Id. at *2-3. Plaintiff claimed that the defendant misrepresented in advertising

that the multi-ply linens had a “1000 Thread Count,” when in actuality the linens only had a

thread count of 492. Id. at *9-10. Plaintiff claimed in his complaint that he and the proposed

class suffered an ascertainable loss in that they purchased linens that were of a lower quality and

less valuable than the linens they were promised.” Id. The Court made short work of this

argument and dismissed the CFA claim finding that this broad and conclusory allegation was not

sufficient to demonstrate an ascertainable loss. Id. In making this decision, the Court noted:

Plaintiff fails to specifically allege that what he did received was of lesser value than what was promised, i.e., that the sheets he received were worth an amount of money less than the sheets he was promised, or that he experienced a measurable out-of-pocket loss because of his purchase. Therefore, Plaintiff has failed to set forth either an out-of-pocket loss or a demonstration of loss in value sufficient to satisfy the ascertainable loss requirement. Id. at *10.


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Plaintiffs’ ascertainable loss allegations here are even more general than those in

Solo. Here, Plaintiffs only claim they paid a “premium price” without identifying the actual

price they paid or the purported premium they paid for products that allegedly did not conform to

the representations. Under Solo and other New Jersey cases, these conclusory allegations are

insufficient to allege an ascertainable loss to support a cognizable CFA claim. See, e.g., Parker,

2008 U.S. Dist. LEXIS 2570 at *11-12; Solo, 2007 U.S. Dist. LEXIS 31088 at *11; see also In

re Riddell Concussion Reduction Litig., 2015 U.S. Dist. LEXIS 4996 at *36 (general allegation

that Plaintiffs paid a premium insufficient to allege ascertainable loss).

4. The CFA Claim Fails as a Matter of Law Because Plaintiffs Fail to Allege the Essential Element of a Causal Nexus Between Wegmans’ Conduct and any Ascertainable Loss.

The CFA claim also fails because Plaintiffs fail to allege the essential element of a

“causal relationship or nexus” between the Defendants’ unlawful conduct and the Plaintiffs’

ascertainable loss to state a cognizable CFA claim. Bosland v. Warnock Dodge, Inc., 197 N.J.

543, 557 (2009); Fleisher v. Fiber Composites, LLC, No. 12-1326, 2012 U.S. Dist. LEXIS

157343, at *32 (E.D. Pa. Nov. 2, 2012). To properly plead a causal relationship or nexus, a

plaintiff “must allege facts establishing a causal relationship with the particularity required by

Rule 9(b).” Arcand v. Brother Int’l Corp., 673 F. Supp. 2d 282, 303 (D.N.J. 2009). In this

regard, the New Jersey district court decisions in Dewey v. Volkswagen AG, 558 F. Supp. 2d 505

(D.N.J. 2008) and Gotthelf v. Toyota Motor Sales, U.S.A., Inc., No. 10-4429, 2012 U.S. Dist.

LEXIS 62045 (D.N.J. May 3, 2012) are instructive.

In Dewey, the court found that a plaintiff had not sufficiently pleaded a causal

relationship within “Rule 9(b)’s strictures” because he only alleged misrepresentations and

injuries in the most general and conclusory terms. Dewey, 558 F. Supp. 2d at 526. The court

noted that the allegations made by the plaintiff were “legal conclusions, not factual allegations


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that would, if true, establish a ‘causal nexus’” because they did not allege when statements were

made or when the plaintiff was exposed to the statements. Id. at 526-27. The court noted that

the absence of this information rendered the plaintiff unable to properly plead a causal

relationship. Id. at 527.

In Gotthelf, the plaintiff alleged that Toyota violated the CFA when it marketed a

Prius vehicle with an HID Headlamp System as being superior to halogen bulbs but were

actually defective. Gotthelf, 2012 U.S. Dist. LEXIS 62045, at *3-5. The complaint in that case

did not specify where and when Toyota marketed the vehicles with the HID Headlamp System,

nor whether plaintiff actually saw the marketing materials before purchasing the Prius. Id. The

court dismissed that plaintiff’s CFA claim because the complaint failed to cite to marketing

materials “that Plaintiff himself viewed or when he may have viewed them.” Id. at *55-56.

Similar to Gotthelf and Dewey, Plaintiffs have failed to plead the essential

element of a causal relationship between the alleged misrepresentations and the alleged

ascertainable loss. Although Plaintiffs contend that Wegmans utilized STORE BAKED ROLLS

signs and Wegmans website contained descriptions of certain bakery products and breads being

“store baked” or “fresh baked,” nowhere in the Amended Complaint do Plaintiffs allege that they

actually saw the signs or viewed the website prior to purchasing a product that was not baked in

store. Similarly, although Plaintiffs acknowledge throughout the Amended Complaint that that

only “certain” (Amd. Cmp. ¶¶ 30a, 30b, 30e, 30g, 68), “some” (Amd. Cmp. ¶ 46) or “many”

bakery products (Amd. Cmp. ¶ 45) are not made in store, the Amended Complaint does not

allege that members of their purported class actually purchased a bakery product or bread that

was not otherwise made in store. Indeed, nowhere in the definition of the purported class or


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subclass do Plaintiffs allege that the members even purchased a bakery or bread product that was

not otherwise “store baked” or “fresh baked.” (See Amd. Cmp. ¶¶ 25-26).

These omissions are fatal and demonstrate Plaintiffs have not pleaded the

essential element of a causal relationship to give them standing to pursue a CFA claim.3

B. THE SECOND COUNT OF THE AMENDED COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFFS FAIL TO SUFFICIENTLY ALLEGE BREACH OF AN EXPRESS WARRANTY

Plaintiffs’ breach of express warranty claim fails for the same reason the CFA

claim fails on the basis of a failure to plead a causal nexus -- namely, Plaintiffs fail to adequately

allege that they were aware of any alleged misrepresentations that formed the basis of a bargain

between Plaintiffs and Wegmans. Under New Jersey law a breach of warranty claim requires, at

a minimum, the following three elements: (a) an affirmation or promise about a description of

the product, (b) that became part of the basis of the bargain for the purchase, and (c) a product

that ultimately did not conform to the affirmation or promise. Smajlag v. Campbell Soup Co.,

782 F. Supp. 2d 84, 103 (D.N.J. 2011). In order for an affirmation or promise about a product

description to become part of the basis of the bargain, a plaintiff must become aware of the

affirmation or promise. Viking Yacht Co. v. Composites One LLC, 496 F. Supp. 2d 462, 469

(D.N.J. 2007).

3 The failure to allege a causal link between Wegman’s alleged unlawful conduct and any injury also

demonstrates that Plaintiffs lack standing to pursue class claims. See Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 135 (3d Cir. 2000) (stating that “. . . a plaintiff who lacks the personalized, redressable injury required for standing to assert claims on his own behalf would also lack standing to assert similar claims on behalf of a class.”); In re Franklin Mutual Funds Fee Litig., 388 F. Supp. 2d 451, 460-61 (D.N.J. 2005) (noting “a named plaintiff can bring suit against a party only the plaintiff personally suffered an injury and that injury is traceable to that party. If a plaintiff cannot trace an injury to a defendant, the plaintiff lacks standing with regard to that defendant.”); Bennett v. Correctional Medical Services, Inc., No. 02-4993, 2008 U.S. Dist. LEXIS 39020, at *18 (D.N.J. May 14, 2008) (deciding whether proposed class representative had Article III standing before resolving motion for class certification).


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On this point, the Court can turn to the Eastern District of Pennsylvania’s decision

in Fleisher v. Fiber Composites, LLC, No. 12-1326, 2012 U.S. Dist. LEXIS 157343 (E.D. Pa.

Nov. 2, 2012) for guidance. There, plaintiffs sought to pursue a class action arising from a

defendant’s sale of purportedly defective deck materials. Id. at *2. Plaintiffs claimed, among

other things, that statements on the defendant’s website created an express warranty that formed

the basis of plaintiffs’ bargains in purchasing the deck materials. Id. at *4-5. Defendant filed a

motion to dismiss the express warranty claim arguing that the express warranty claims were

subject to dismissal because they never became a basis of the bargain between defendant and the

plaintiffs. Id. at *17.

The Court agreed and dismissed the express warranty claim under Rule 12(b)(6).

Id. at *19. It found that “a warranty does not become part of the basis of the bargain unless

plaintiffs show that they ‘read, heard, saw, or knew of the advertisement containing the

affirmation of fact or promise’” prior to the purchase of the product. Id. at *18 (quoting

Cipollone v. Liggett Grp., Inc., 893 F.2d 541, 567 (3d Cir. 1990)4, rev’d on other grounds, 505

U.S. 504 (1992). Because plaintiffs failed to allege they ever “read, heard, saw or knew of the

express warranties” prior to purchasing products, the Court granted defendant’s motion and

dismissed the breach of express warranty claim. Id. at *18-19.

Similar to Fleisher, Plaintiffs do not allege that prior to purchasing a product they

read, heard, saw, or even knew about Wegmans’ store sign or website product description stating

bread or bakery products were “store baked” or “fresh baked.” Instead, Plaintiffs allege in

conclusory fashion that Wegmans’ “store signs or website affirms that the bread or bakery

products were made in store and/or fresh,” that “[b]y operation of New Jersey law,” these

4 Cipollone interprets New Jersey law.


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affirmations were incorporated into an “identical warranty” provided to each class member and

that Wegmans’ breached the express warranty because certain unidentified bread and/or bakery

products did not and could not conform to the affirmation. (Amd. Cmpl. ¶¶ 53, 54, 59, 60). The

failure to allege that Plaintiffs ever read, saw or knew about the alleged warranty dooms the

breach of express warranty claim.

Plaintiffs’ breach of warranty claim also fails and must be dismissed under Rule 8

because the allegations about the breach of an express warranty are not plausible. See Ashcroft v.

Iqbal, 566 U.S. 667, 677-80 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007). In this regard, even if an alleged warranty existed that certain Wegmans’ bread and/or

bakery products are “store baked” or “fresh baked,” Plaintiffs do not adequately allege any

breach of this warranty under Iqbal and Twombly because the Amended Complaint fails to show

the Plaintiffs actually purchased a specific product that was otherwise not “store baked” or “fresh

baked.” In other words, on its face the Amended Complaint fails to allege that any bakery

product they purchased failed to conform to an alleged affirmation made by Wegmans. Thus, in

the absence of well-pled allegations of a breach of a warranty, the Second Count of the Amended

Complaint must be dismissed.

C. PLAINTIFFS’ CLAIM FOR A DECLARATORY JUDGMENT IN THE THIRD COUNT SHOULD BE DISMISSED BECAUSE NO ACTIVE CASE IN CONTROVERSY EXISTS AND EVEN IF IT DID PLAINTIFFS HAVE OTHER REMEDIES AVAILABLE

In the Third Count of their Amended Complaint, Plaintiffs seek to pursue a

declaration pursuant to the New Jersey Declaratory Judgment Act “that certain signs or

descriptions that the breads or bakery products are baked in store are inaccurate.” (Amd. Cmp. ¶

64). This claim is subject to dismissal on the basis that there is no actual controversy between

the parties requiring this court to issue a declaratory judgment.


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It is well settled that courts confine the exercise of judicial power to actual cases

and controversies and courts will not render advisory opinions or function in the abstract.

Compare U.S. Const. art. III, § 2 with N.J. Const. art. VI, § 1; Step-Saver Data Sys., Inc. v. Wyse

Tech., 912 F.2d 643, 647 (3d Cir. 1990) (quoting 28 U.S.C. § 2201) (“[B]ecause the

Constitution prohibits federal courts from deciding issues in which there is no ‘case[] or

controversy,’ U.S. Const. art. III, § 2, declaratory judgments can be issued only when there is

‘an actual controversy.’”); see also Independent Realty Co. v. Twp. of North Bergen, 376 N.J.

Super. 295, 301 (App. Div. 2005) (citing Crescent Park Tenants Ass’n v. Realty Equities Corp.,

58 N.J. 98, 107 (1971); New Jersey Tpk. Auth. v. Parsons, 3 N.J. 235, 240 (1949)).

In order for courts to exercise their power, a “controversy must be definite and

concrete, touching the legal relations of parties having adverse legal interests. It must be a real

and substantial controversy admitting of specific relief through a decree of a conclusive

character, as distinguished from an opinion advising what the law would be upon a hypothetical

state of facts.” Wyatt, Virgin Islands, Inc. v. Gov’t of the Virgin Islands, 385 F.3d 801, 806 (3d

Cir. 2004) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937)).

Here, the Court should dismiss Plaintiffs’ claim for declaratory relief because

there is no “actual controversy” between the parties. Although Plaintiffs contend a

“justifiable” controversy is present in this case, (Amd. Cmp. ¶ 66), they fail to identify that

controversy in the Third Count and they cannot rely on the claims asserted in the First, Second,

and Fourth Counts of the Amended Complaint because, for the reasons stated above, those

claims are not legally cognizable. See, e.g., Glover v. State Farm Fire & Cas. Co., 984 F.2d

259, 260-61 (8th Cir. 1993) (affirming dismissal of declaratory judgment claim where plaintiff

did not plead cause of action under applicable statute as basis for declaratory relief and lacked


-16-

standing to pursue alternative contractual grounds); Motley v. Homecomings Fin., LLC, 557 F.

Supp. 2d 1005, 1014 (D. Minn. 2008) (dismissing declaratory judgment claim seeking

declaration that conduct was unlawful and injunction enjoining such conduct where plaintiff

ultimately conceded these are merely remedies, not separate causes of action); Galerie

Gmurzynska v. Hutton, 257 F. Supp. 2d 621, 632 (S.D.N.Y. 2003) (dismissing declaratory

judgment claim and finding no actual case and controversy after remaining federal claims were

dismissed under Rule 12(b)(6)).

Similarly, even if Plaintiffs CFA, breach of express warranty, and TCCWNA

claims somehow survived the motion to dismiss, the declaratory judgment claim still can be

dismissed because the relief sought is duplicative of the other relief available that addresses

Plaintiffs’ injuries. Where, as is the case here, a plaintiff has an adequate remedy at law, district

courts routinely dismiss claims for declaratory relief. See, e.g., Fancaster, Inc. v. Comcast

Corp., 832 F. Supp. 2d 380, 427 (D.N.J. 2011) (dismissing claim for declaratory judgment

because such claim was “essentially a restatement of its first and third counterclaims” for fraud

and abandonment); ATD-American Co. v. Krueger Int'l, Inc., No. 12-00032, 2012 U.S. Dist.

LEXIS 55650 (E.D. Pa. Apr. 19, 2012) (dismissing claim for declaratory relief where it “merely

duplicate[d] … other claims for breach”).

Thus, because there is no case and controversy present and because Plaintiffs’

claims are duplicative of other claims in this case – to the extent those claims survive – the

declaratory judgment claim fails and must be dismissed.

D. PLAINTIFFS’ CLAIM FOR AN INJUNCTION IN THE THIRD COUNT SHOULD BE DISMISSED BECAUSE PLAINTIFFS FAIL TO PLEAD THE ELEMENTS OF INJUNCTIVE RELIEF

Plaintiffs’ claim for injunctive relief found in paragraphs 67 and 68 of the

Amended Complaint is subject to dismissal under Rule 12(b)(6) because Plaintiffs do not come


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close to pleading the elements necessary to sustain a claim. In eBay Inc. v. MercExchange, LLC,

547 U.S. 388, 391 (2006), the Supreme Court required the following elements for entitlement to

an injunction: (i) irreparable harm, (ii) the inadequacy of money damages, (iii) the absence of

inequitable hardships, and (iv) that an injunction would not disserve the public interest.

Plaintiffs do not even attempt to plead any of these essential elements for entitlement to an

injunction and therefore their claim for injunctive relief fails as a matter of law and must be

dismissed.

E. THE FOURTH COUNT OF THE AMENDED COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFFS FAIL TO ALLEGE THEIR TCCWNA CLAIM IS BASED ON AN ESTABLISHED LEGAL RIGHT

The TCCWNA, N.J.S.A. 56:12-14 to -18, prohibits a seller from entering into a

contract with a consumer that includes any provision that violates an established legal right under

federal or state law. Specifically, the statute provides in pertinent part:

No seller . . . shall . . . enter into any written consumer contract . . . which includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller, . . . established by State or Federal law at the time the offer is made or the consumer contract is signed . . ..

N.J.S.A. 56:12-15. Significantly, TCCWNA does not establish consumer rights or seller

responsibilities, but instead bolsters rights and responsibilities established by other laws.

Watkins v. DineEquity, Inc., 591 Fed. Appx. 132, 134 (3d Cir. 2014). In this regard, when a

complaint fails to identify the violations of a clearly established legal right, courts have routinely

dismissed TCCWNA claims. See e.g., Rivera v. Wash. Mut. Bank, 637 F. Supp. 2d 256 (D.N.J.

2009); Skypala v. Mortg. Elec. Registration Sys., 655 F. Supp. 2d 451 (D.N.J. 2009); Perkins v.

AT&T Mobility, LLC, No. 10-6429, 2011 U.S. Dist. LEXIS 16614 (D.N.J. Feb. 17, 2011); Sauro

v. L.A. Fitness Int'l, LLC, No. 12-3682, 2013 U.S. Dist. LEXIS 58144 (D.N.J. Feb. 13, 2013).


-18-

Instructive to this case is the court’s decision in Sauro v. L.A. Fitness Int'l, LLC,

No. 12-3682, 2013 U.S. Dist. LEXIS 58144 (D.N.J. Feb. 13, 2013). There, Plaintiff attempted to

assert a TCCWNA claim arising from a gym membership agreement that Plaintiff claimed

contained misrepresentations of fact. Plaintiff claimed the defendant’s marketing of gym

memberships violated the New Jersey Consumer Fraud Act and predicated her TCCWNA claim

on alleged clearly established rights under the New Jersey Consumer Fraud Act. Id. at *28.

Defendant filed a motion to dismiss all claims, which the Court granted. Id. at *30. In

dismissing the TCCWNA claim, the Court made clear that the claim was predicated on a New

Jersey Consumer Fraud Act violation and since the Consumer Fraud claim was dismissed, the

dismissal of the TCCWNA claim followed because the claim was not predicated on an

established legal right. Id. at *30.

Similar to Sauro, Plaintiffs allege here that their TCCWNA claim is predicated on

established legal rights under the CFA. (See Amd. Cmp. ¶ 76). Because the CFA claim is not

cognizable, however, Plaintiffs cannot allege any violation of an established legal right to

support their TCCWNA claim. Accordingly, the TCCWNA claim must be dismissed. See

Sauro, 2013 U.S. Dist. LEXIS 58144 at *28; see also Ensey v. Gov't Emplrs. Ins. Co., No. 12-

07669, 2013 U.S. Dist. LEXIS 159373 (D.N.J. Nov. 7, 2013) (dismissing TCCWNA claim

predicated on dismissed CFA claim).5

5 To the extent Plaintiffs try to contend their TCCWNA claim is predicated on an established legal right

under 21 C.F.R. § 101.95, that contention fails. 21 C.F.R. § 101.95 is a federal regulation promulgated under the Food, Drug and Cosmetics Act (“FDCA”). 58 FR 2302. It is well recognized that the FDCA provides no private right of action to consumers and cannot support a TCCWNA claim. See Wellness Publ. v. Barefoot, No. 02-3773, 2008 U.S. Dist. LEXIS 1514, at *51-52 (D.N.J. Jan. 8, 2008) (citing Healthpoint, Ltd. v. Ethex Corp., 273 F. Supp. 2d 817, 832-33 (W.D. Tex. 2001) (“[T]he [Food, Drug and Cosmetics Act] does not create a private right of action to enforce the FDCA or restrain the provisions of the FDA regulations.”); Mutual Pharmaceuticals Co. v. Ivax Pharmaceuticals, Inc., 459 F. Supp. 2d 925, 938 (C.D. Cal. 2006) (“Neither [the FDA or the FTC] constituent statutes creates an express or implied private right of action”)); see also Cent. Reg’l Emples. Benefit Fund v. Cephalon, Inc., No. 09-3418, 2010 U.S. Dist. LEXIS 29677, at *10 (D.N.J. Mar. 29, 2010) (there is no private cause

(continued...)


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F. ALL CLAIMS PLAINTIFFS SEEK TO ASSERT ON BEHALF OF THE SUBCLASS MUST BE DISMISSED BECAUSE PLAINTIFFS LACK STANDING TO PURSUE THOSE CLAIMS

Finally, the Court must dismiss all claims that Plaintiffs seek to pursue on behalf

of a subclass consisting of “individuals and entities within New Jersey who purchased bread

and/or bakery products . . . using a credit card [or] debit card” for the simple reason that none of

the Plaintiffs allege that they are members of this subclass or that they suffered an injury as a

result of using a credit or debit card.

It is well settled that a named plaintiff must establish proper standing to bring

each claim before class certification. See In re Schering Plough Corp. Intron/Temodar

Consumer Class Action, 678 F.3d 235, 245 (3d Cir. 2012) (“A plaintiff who raises multiple

causes of action must demonstrate standing for each claim he seeks to press.”) (internal citation

omitted); Winer Family Trust v. Queen, 503 F.3d 319, 326 (3d Cir. 2007) (“The initial inquiry

[in a class action] is whether the lead plaintiff individually has standing, not whether or not other

class members have standing.”); In re Prudential Ins. Co. Am. Sales Practice Litig. Agent

Actions, 148 F.3d 283, 306-07 (3d Cir. 1998) (“[W]hether an action presents a ‘case or

controversy’ under Article III is determined vis-a-vis the named parties.”); Zimmerman v. HBO

Affiliate Grp., 834 F.2d 1163, 1169 (3d Cir. 1987) (“It is well settled that to be a class

representative on a particular claim, the plaintiff must himself have a cause of action on that

claim.”). In order to establish standing in the class action context, “Article III requires that the

representative or named plaintiff must share the same injury or threat of injury.” DuPree v. U.S.,

________________________

(continued...) of action under the FDCA ); Won Kyung Hwang v. Ohso Clean, Inc., No. 12-06355, 2013 U.S. Dist. LEXIS 54002, at *37 (N.D. Cal. Apr. 16, 2013) (same); Wells ex rel. J.W. v. Allergan, Inc., No. 12-973, 2013 U.S. Dist. LEXIS 13191, at *26-27 (W.D. Okla. Jan. 31, 2013) (same).


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559 F.2d 1151, 1153 (9th Cir. 1977), see also Sosna v. Iowa, 419 U.S. 393, 403 (1975) (“A

litigant must be a member of the class which he or she seeks to represent at the time the class

action is certified”).

Here, none of the named Plaintiffs allege that they have a claim arising from a

purchase of a bread or bakery product using a credit card or debit card. Accordingly, without

allegations showing they share the same injury as the members of the purported class they seek

to represent, the Plaintiffs lack standing to assert claims on behalf of the subclass and therefore

all claims asserted on behalf of the subclass must be dismissed under Fed. R. Civ. P. 12(b)(1).

IV. CONCLUSION

For the reasons set forth above, Plaintiffs’ Amended Complaint should be

dismissed in its entirety under Fed. R. Civ. P. 8, 9(b), and 12(b)(6).

PEPPER HAMILTON LLP /s/ Matthew V. DelDuca Matthew V. DelDuca Angelo A. Stio III Suite 400 301 Carnegie Center Princeton, NJ 08543-5276 Telephone: (609) 452-0808

Dated: April 9, 2015


Documents

Wegmans memorandum in support of motion to dismiss complaint