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BOIES, SCHILLER & FLEXNER LLP Rosanne C. Baxter (NJ State Bar No. 032041989; D.N.J. No. RCB 6118) William S. Ohlemeyer (NY State Bar No. 3995651, pro hac vice pending) Brooke A. Alexander (NY State Bar No. 4678900, pro hac vice pending) 333 Main Street Armonk, New York 10504 Tel. (914) 749-8200 Fax. (914) 749-8300 Email rbaxter@bsfllp.com wohlemeyer@bsfllp.com balexander@bsfllp.com Attorneys for Defendant FitFlop USA, LLC UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE CASE NO.: 1:13-cv-02051-NLHBARBARA GLABERSON, On Behalf of AMD Herself, All Others Similarly Situated and the General Public, NOTICE OF DEFENDANT FITFLOP USA, LLCS MOTION Plaintiffs, TO DISMISS PLAINTIFFS COMPLAINT, OR, IN THE v. ALTERNATIVE, TO STRIKE, PURSUANT TO FED.R.CIV.P. FITFLOP USA, LLC, FITFLOP 12(b)(6) AND 12(f) LIMITED, BRAND SLAM LTD., and MARCIA DIANE KILGORE, Motion Day: July 15, 2013 Defendants. ORAL ARGUMENT REQUESTED

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 15, 2013, or as soon thereafter as the matter can be heard, in Courtroom 3A of the Mitchell H. Cohen Building & U.S. Courthouse, located at 4th & Cooper Streets, Camden, NJ 08101, Defendant FitFlop USA, LLC, will and hereby does, move the Court for an order dismissing Plaintiffs Complaint in its entirety, or, in the alternative, striking Plaintiffs class action allegations pursuant to Fed. R. Civ. P. 12(b)(6) and 12(f). The Motion to Dismiss, or, in the Alternative, to Strike is based upon this Notice of Motion, the Memorandum in Support, and on such other matters and arguments as may be considered by the Court on or before the hearing of the motion.

Dated:

June 4, 2013 Armonk, NY

BOIES, SCHILLER & FLEXNER LLP By: /s/ Rosanne C. Baxter Rosanne C. Baxter (NJ State Bar No. 032041989; D.N.J. No. RCB 6118) William S. Ohlemeyer (NY State Bar No. 3995651, pro hac vice admission pending) Brooke A. Alexander (NY State Bar No. 4678900, pro hac vice admission pending) 333 Main Street Armonk, New York 10504 Tel. (914) 749-8200
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Fax. (914) 749-8300 Email rbaxter@bsfllp.com wohlemeyer@bsfllp.com balexander@bsfllp.com Attorneys for Defendant FitFlop USA, LLC

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CERTIFICATE OF SERVICE

I hereby certify that I caused a copy of the following document(s): FITFLOP USA, LLCS NOTICE OF MOTION TO DISMISS PLAINTIFFS COMPLAINT, OR, IN THE ALTERNATIVE, TO STRIKE, PURSUANT TO FED.R.CIV.P. 12(b)(6) AND 12(f) To be delivered via CM/ECF upon all counsel of record as indicated/listed on the United States District Court, District of New Jerseys CM/ECF registered e-mail list in the referenced matter.

Executed this 4th day of June, 2013, at Armonk, NY. By: /s/ Rosanne C. Baxter BOIES, SCHILLER & FLEXNER LLP 333 Main Street Armonk, New York 10504 Tel. (914) 749-8200 Fax. (914) 749-8300 Email rbaxter@bsfllp.com

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BOIES, SCHILLER & FLEXNER LLP Rosanne C. Baxter (NJ State Bar No. 032041989; D.N.J. No. RCB 6118) William S. Ohlemeyer (NY State Bar No. 3995651, pro hac vice admission pending) Brooke A. Alexander (NY State Bar No. 4678900, pro hac vice admission pending) 333 Main Street Armonk, New York 10504 Tel. (914) 749-8200 Fax. (914) 749-8300 Email rbaxter@bsfllp.com wohlemeyer@bsfllp.com balexander@bsfllp.com Attorneys for Defendant FitFlop USA, LLC

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE CASE NO.: 1:13-cv-02051-NLHAMD

BARBARA GLABERSON, on Behalf of Herself, All Others Similarly Situated and the General Public, DEFENDANT FITFLOP USA, LLCS MEMORANDUM OF LAW Plaintiffs, IN SUPPORT v. FITFLOP USA, LLC, FITFLOP LIMITED, BRAND SLAM LTD., and MARCIA DIANE KILGORE, Defendants. Motion Day: July 15, 2013 ORAL ARGUMENT REQUESTED

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TABLE OF CONTENTS

I. II. III. IV.

INTRODUCTION AND SUMMARY OF ARGUMENT ............................1 BACKGROUND ............................................................................................2 LEGAL STANDARD ....................................................................................4 ARGUMENT .................................................................................................5

A. The Complaint Must Be Dismissed for Failure to Plead with Particularity Under Rule 9(b). .....................................................................................................5 B. The Complaint Must Be Dismissed for Failure to State a New Jersey Consumer Fraud Act Claim. .................................................................................11 1. 2. Plaintiff Fails to Allege Unlawful Conduct. ............................................11 Plaintiff Fails to Allege an Ascertainable Loss. .......................................13

3. Plaintiff Fails to Allege a Causal Relationship Between the Alleged Unlawful Acts and the Alleged Ascertainable Loss. ........................................18 C. The Complaint Must Be Dismissed for Failure to State a Breach of Express Warranty Claim. ...................................................................................................20 D. In the Alternative, Plaintiffs Demand for Class Certification Should Be Stricken In Its Entirety Under Fed. R. Civ. P. 12(f). ............................................22 1. Individual Issues Overwhelmingly Predominate. ....................................25

2. Plaintiffs Proposed Class Is Not Ascertainable and Will Include Plaintiffs Without Standing. ..............................................................................27 3. Plaintiff Lacks Standing to Bring Claims Related to Models of FitFlops Plaintiff Did Not Purchase Herself. ..................................................................28 V. CONCLUSION .............................................................................................. 32
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TABLE OF AUTHORITIES Cases Adamson v. Ortho-McNeil Pharm., Inc., 463 F. Supp. 2d 496 (D.N.J. 2006).......................................................................12 Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) .............................................................................................25 Arcand v. Brother Intl Corp., 673 F. Supp. 2d 282 (D.N.J. 2009).........................................................................4 Arlandson v. Hartz Mountain Corp., 792 F. Supp. 2d 691 (D.N.J. 2011).......................................................................20 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ..........................................................................................4 Bell Atl. Corp. v. Twombly, 550 U.S. 544,(2007). ..............................................................................................4 Cipollone v. Liggett Grp., Inc., 893 F.2d 541 (3d Cir. 1990) .................................................................................21 Clark v. McDonalds Corp., 213 F.R.D. 198 (D.N.J. 2003) ................................................................... 5, 23, 24 Cox v. Sears Roebuck & Co., 138 N.J. 2 (1994) ..................................................................................... 11, 13, 18 Dabush v. Mercedes-Benz USA, LLC, 378 N.J. Super. 105 (App. Div. 2005) ..................................................................13 Donachy v. Intrawest U.S. Hldgs., Inc., No. 10-4038, 2012 WL 869007 (D.N.J. Mar. 14, 2012) ..................................5, 23 Fid. and Guar. Ins. Underwriters, Inc. v. Omega Flex Inc., No. 12-2588, 2013 WL 1288184 (D.N.J. Mar. 26, 2013) ....................................21 Francis E. Parker Memorial Home, Inc. v. Georgia-Pacific LLC, No. 12-02441, 2013 WL 2177974 (D.N.J. May 20, 2013) ..................................29 Franulovic v. Coca Cola Co., Nos. 07-539, 07-828, 2007 WL 3166953 (D.N.J. Oct. 25, 2007) ..... 15, 16, 17, 19 Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007) .............................................................................4, 11 Gen. Tel. Co. of SW v. Falcon, 457 U.S. 147 (1982) .............................................................................................24
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Gennari v. Weichert Realtors, 148 N.J. 582 (1997) ..............................................................................................12 Green v. Green Mountain Coffee Roasters, Inc., 279 F.R.D. 275 (D.N.J. 2011) ................................................................. 24, 29, 30 Gross v. Johnson & Johnson-Merck Consumer Pharm. Co., 303 N.J. Super. 336 (App. Div. 1997) ..................................................................18 Gustafson v. Polk County, Wis., 226 F.R.D. 601 (W.D. Wis. 2005)........................................................................27 Hammer v. Vital Pharm., Inc., No. 11-4124, 2012 WL 1018842 (D.N.J. Mar. 26, 2012) ............................ passim Hughes v. Panasonic Consumer Elec. Co., No. 10-846, 2011 WL 2976839 (D.N.J. July 21, 2011) .......................................21 In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008) .................................................................................24 In re Toshiba Amer. HD DVD Mktg. and Sales Practices Litig., No. 08-939, 2009 WL 2940081 (D.N.J. Sept. 11, 2009) .....................................20 Kennedy Funding Inc. v. Lions Gate Dev., LLC, No. 05-4741, 2006 WL 1044807 (D.N.J. Apr. 18, 2006) ....................................11 Kim v. Baik, No. 06-3604, 2007 WL 674715 (D.N.J. Feb. 27, 2007) ........................................5 Laney v. Am. Std. Cos., No. 07-3991, 2010 WL 3810637 (D.N.J. Sept. 23, 2010) ...................................26 Lewis v. Casey, 518 U.S. 343 (1996) ...................................................................................... 29, 30 Lieberson v. Johnson & Johnson Consumer Co., 865 F.Supp.2d 529 (D.N.J. 2011)............................................................ 29, 30, 31 Lum v. Bank of Am., 361 F.3d 217 (3d Cir. 2004) ...................................................................................6 Mann v. TD Bank, N.A., No. 09-1062, 2010 WL 4226526 (D.N.J. Oct. 20, 2010) .............................. 26, 27 Mason v. Coca-Cola Co., No. 09-0220, 2010 WL 2674445 (D.N.J. June 30, 2010) .................................7, 8 Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154 (3d Cir. 2001) .................................................................................25 NN&R, Inc. v. One Beacon Ins. Group, 362 F. Supp. 2d 514 (D.N.J. 2005).........................................................................7
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Pacholec v. Home Depot USA, Inc., No. 06-827, 2006 WL 2792788 (D.N.J. Sept. 26, 2006) .......................................7 Pappalardo v. Combat Sports, Inc., No. 11-1320, 2011 WL 6756949 (D.N.J. Dec. 23, 2011) ......................................8 Parker v. Howmedica Osteonics Corp., No. 07-2400, 2008 WL 141628 (D.N.J. Jan. 14, 2008) ...................................8, 18 Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786 (3d Cir. 1984) .......................................................................... 10, 32 Simmons v. Stryker Corp., No. 08-3451, 2008 WL 4936982 (D.N.J. Nov. 17, 2008)....................................20 Smajlaj v. Campbell Soup Co., 782 F. Supp. 2d 84 (D.N.J. 2011).................................................................. 17, 19 Smith v. Lyons, Doughty & Veldhuius, P.C., No. 07-5139, 2008 WL 2885887 (D.N.J. July 23, 2008) .....................................24 Solo v. Bed Bath & Beyond, Inc., No. 06-1908, 2007 WL 1237825 (D.N.J. Apr. 26, 2007) ............................. 13, 14 Stewart v. Smart Balance, Inc., No. 11-6174, 2012 WL 4168584 (D.N.J. June 26, 2012) ....................................16 Szczubelek v. Cendant Mortg. Corp., 215 F.R.D. 107 (D.N.J. 2003) ..............................................................................27 Theidmann v. Mercedes-Benz USA, LLC, 183 N.J. 234 (2005) ..............................................................................................13 Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011)..........................................................................................26 Other Authorities Fed. R. Civ. P. 12(b)(6)..............................................................................................4 Fed. R. Civ. P. 12(f) .............................................................................................5, 23 Fed. R. Civ. P. 23(a).............................................................................................3, 23 Fed. R. Civ. P. 23(b)(3)................................................................................. 3, 23, 25 Fed. R. Civ. P. 9(b) ........................................................................................... 1, 4, 5 Manual for Complex Litigation 30.14 (3d ed. 1999)............................................28 N.J. Stat. Ann. 12A:2-313 (West 2012) ................................................................20
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I.

INTRODUCTION AND SUMMARY OF ARGUMENT Barbara Glabersons (Plaintiff) April 2, 2013 Complaint (Dckt. # 1 (the

Complaint)) against Defendant FitFlop USA, LLC (FitFlop or Defendant)1 is fatally flawed both as a stand-alone claim and to the extent it purports to advance allegations on behalf of a class of FitFlop purchasers. First, Plaintiff neglects to plead essential facts about her Fitflop purchase, including details regarding the statements allegedly made to her when purchasing her footwear, and the materiality thereof, as required by Fed. R. Civ. P. 9(b). Second, Plaintiff has failed to plead any of the elements required by the New Jersey Consumer Fraud Act (NJCFA) and thus fails to state a valid claim under the statute. Third, Plaintiff fails to state a breach of express warranty claim because she did not specify the warranty made to her or how the product she purchased failed to meet that warranty. In the alternative, Defendant moves to strike Plaintiffs class action allegations in their entirety because Plaintiff cannot sustain a class action under the Federal Rules. First, the proposed class cannot meet the predominance requirement because, by its terms, individual issues predominate over issues common to the class. Second, the class is not ascertainable. Plaintiffs alleged
1

This motion is filed only on behalf of Defendant FitFlop USA, LLC. Upon information and belief, as of the date of filing, the remaining defendants FitFlop Limited, Brand Slam Ltd. and Marcia Kilgore have not been served in this action.
1

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class includes a large number of potential class members who would lack standing to bring their own claims, with no hope of separating those with standing from those without. Third, Plaintiff lacks standing to sue on behalf of those class members who purchased styles or models of FitFlop footwear that Plaintiff herself did not purchase. II. BACKGROUND Plaintiff alleges that Defendant manufactures, markets, and sells a line of footwear in varying styles at a significant price premium due to the specific benefits claimed. (Compl. 1-5) Plaintiff alleges that Defendants advertising contains health benefit claims which are false and deceptive (id. at 1) and that FitFlop footwear is not proven to provide any of these benefits. (Id.) Plaintiff alleges only that she was exposed to Defendants deceptive labeling and advertising claims and purchased in reliance on the truth of these claims. (Id. at 11) Despite outlining a plethora of different advertising claims in her Complaint, Plaintiff does not indicate to which advertisement(s), slogan(s), claim(s) or other statistic(s) she was exposed to prior to her decision to purchase. Nor does she provide a copy of the specific advertisement with which she takes issue. Plaintiff fails to plead the following essential facts, each of which are within her knowledge alone: (1) which of Defendants product(s) she purchased; (2) how
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she used the product(s); (3) how often she used the product(s); and (4) how she was harmed by, or benefited from, her use of the product(s). Plaintiff alleges only that she would not have purchased the product(s) if she had known the advertising was false. Plaintiff purports to state claims for violation of the New Jersey Consumer Fraud Act (id. at 69-78) and breach of express warranty under the common law. (Id. at 79-84) On those claims, Plaintiff seeks to certify a class of individuals under Fed. R. Civ. P. 23 (a) and 23(b)(3) who purchased in New Jersey, but does not even attempt to restrict the class to those individuals who were exposed to the advertising at issue. Plaintiff asks the Court to certify a class under Rule 23(a), (b)(2), and (b)(3) consisting of [a]ll persons who purchased FitFlop Footwear in New Jersey until the date notice is provided to the class. (Id. 61) Additionally, Plaintiffs class allegations must be stricken from the Complaint in their entirety because, on its face: (1) the Complaint fails to allege an ascertainable class because, as pled, class members lack standing to sue; (2) individual issues will necessarily predominate over class issues in this litigation; and (3) Plaintiff lacks standing to bring claims related to products Plaintiff did not purchase. Plaintiff seeks economic damages, restitution and disgorgement, injunctive relief, a mandatory injunction ordering a corrective advertising campaign,
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attorneys fees and costs, and pre-judgment and post-judgment interest. (Id. at p. 30) Plaintiff has, however, failed to plead her theory of damages with adequate specificity. She does not allege what percentage of the sales price she believes was reasonable, or what percentage she attributes to the premium resulting from the advertised benefits. III. LEGAL STANDARD Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice to adequately plead a claim that will survive a motion to dismiss under Rule 12(b)(6). Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To do so, a complaints factual allegations must be enough to raise a right to relief above the speculative level[.] Id.; Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (a claim is sufficiently pled when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged). This Complaint is subject not only to the Twombly and Iqbal standard but, as it includes claims based on allegedly misleading advertising under the NJCFA, is subject to the heightened pleading requirements of Fed. R. Civ. P. 9(b). Hammer v. Vital Pharm., Inc., No. 11-4124, 2012 WL 1018842, at *4 (D.N.J. Mar. 26, 2012) (citing Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007)); Arcand v. Brother Intl Corp., 673 F. Supp. 2d 282 (D.N.J. 2009). Rule 9 provides, in
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pertinent part, that a party must state with particularity the circumstances constituting fraud or mistake. Fed. R. Civ. P. 9(b). Thus, in this case, to comply with Rule 9, Plaintiffs, at minimum, must make specific allegations as to product purchases, specific acts demonstrating causation, and specific facts showing ascertainable losses for Plaintiff. Fed. R. Civ. P. 12(f) provides that any insufficient defense or any redundant, immaterial, or impertinent and scandalous matter may be stricken from a complaint. Where a class action cannot be maintained based upon the facts alleged, a defendant may move to strike class allegations from a complaint prior to discovery. Clark v. McDonalds Corp., 213 F.R.D. 198, 205 (D.N.J. 2003); Donachy v. Intrawest U.S. Hldgs., Inc., No. 10-4038, 2012 WL 869007, at *10 (D.N.J. Mar. 14, 2012). The Court may strike allegations that have no relation to the controversy and may cause prejudice to one of the parties, or where the allegations confuse the issues in the case. Kim v. Baik, No. 06-3604, 2007 WL 674715, at *5 (D.N.J. Feb. 27, 2007). A court possesses considerable discretion in disposing of a motion to strike under Rule 12(f). Id. IV. ARGUMENT

A. The Complaint Must Be Dismissed for Failure to Plead with Particularity Under Rule 9(b). While Plaintiff devotes dozens of pages to describing bad acts allegedly committed by Defendant, she discusses the transaction that allegedly caused the
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harm at issue in a single paragrapha paragraph that fails to provide such basic facts as the date of her purchase and the model of shoes purchased. (Compl. 11) Additionally, Plaintiff fails to identify any specific advertisement that she actually saw, read, heard, watched, viewed, or relied upon in connection with her purchase of the FitFlop product. Instead, Plaintiff produces an assortment of statements, including, for the most part, statements made after her purchase2 and statements from media such as internet and print advertising, which Plaintiff fails to allege she ever saw. Plaintiff also fails to allege how the product she purchased failed to perform in relation to whatever claim was made to her or how Plaintiff suffered any injury as a result. In short, Plaintiff fail[s] to articulate the who, what, when, where, and how of the misconduct alleged as required by Rule 9(b), and her complaint must therefore be dismissed. See Lum v. Bank of Am., 361 F.3d 217, 224 (3d Cir. 2004) (explaining that a plaintiff must allege the date, place, or time of fraud, and must plead who said what to whom as well as the general content of the

Plaintiff made her purchase in Spring 2010. (Compl. 11) According to the dates provided by Plaintiff herself for the Exhibits to her Complaint, the following advertisements are dated after Spring 2010 and thus postdate her purchase: Ex. A, all pages; Ex. B, pgs. 6-11; Ex. C, pgs. 14-22; Ex. D, pgs. 6-7; and Ex. E, all pages.
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communication); NN&R, Inc. v. One Beacon Ins. Group, 362 F. Supp. 2d 514, 518 (D.N.J. 2005) (ruling that a plaintiff may not rely on conclusory statements). Moreover, in class action cases, each individually named plaintiff must satisfy Rule 9(b) independently. Mason v. Coca-Cola Co., No. 09-0220, 2010 WL 2674445, at *5 (D.N.J. June 30, 2010) (quoting Pacholec v. Home Depot USA, Inc., No. 06-827, 2006 WL 2792788, at *2 (D.N.J. Sept. 26, 2006)). Thus, to satisfy Rule 9(b), Plaintiff, at minimum, must make specific allegations regarding her product purchase, the specific acts and statements which led to her purchase, and the specific facts demonstrating her ascertainable losses. Plaintiff has failed to meet each of these requirements. Instead of identifying any specific statement she encountered or even naming the product she purchased, Plaintiff has taken a scattershot approach of producing numerous statements made by Defendant, the overwhelming majority of which were made after Plaintiffs purchase and in media Plaintiff never claims to have accessed. This is plainly insufficient to state a claim with the particularity required by Rule 9(b). The District Court of New Jersey has dismissed numerous NJCFA claims lacking the particularity required under Rule 9(b). See, e.g., Hammer v. Vital Pharm., Inc., No. 11-4124, 2012 WL 1018842, at *10 (D.N.J. Mar. 26, 2012) (dismissing NJCFA claim for failing to meet particularity requirements of Rule 9(b));
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Pappalardo v. Combat Sports, Inc., No. 11-1320, 2011 WL 6756949, at *4 (D.N.J. Dec. 23, 2011) (dismissing NJCFA claims where complaint lacked the requisite specificity-who, what, and where-to sustain a cause of action under the NJCFA and failed to inform each defendant as to the specific fraudulent acts alleged against it); Mason v. Coca-Cola Co., No. 09-0220, 2010 WL 2674445, at *6 (D.N.J. June 30, 2010) (Hillman, J.) (dismissing proposed NJCFA class action where complaint failed to plead plaintiffs losses with sufficient particularity); and Parker v. Howmedica Osteonics Corp., No. 07-2400, 2008 WL 141628, at *4 (D.N.J. Jan. 14, 2008) (dismissing proposed NJCFA class action and noting that plaintiffs attempt to use a sweeping legal conclusion as factual allegationsfail[ed] to meet both the CFA and Rule 9(b) requirements). For example, the Hammer plaintiff alleged that misleading statements had been used in connection with the marketing of a dietary supplement, Clenbutrx. Hammer, 2012 WL 1018842, at *1-2. Plaintiff made claims under the NJCFA, alleging that defendants use of the term dietary supplement in their advertising was misleading because the supplement contained synthetic ingredients. Id. at *2. Plaintiff also alleged that the marketing claims that Clenbutrx was certified by science, backed by the real world, and proven to give you mind blowing energy
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and that its authentic synergistic blend of ingredientsleave[s] scientists wondering how amazing this stuff is were misrepresentations. Id. at *1. These claims were ultimately dismissed because the plaintiff did not allege with any specificity what role specific statements had played in his decision to purchase Clenbutrx. Id. at *13. The court held that plaintiff failed to allege where and when he saw the advertisement which contained the alleged misrepresentation and failed to identify any specific advertisement he viewed, where he viewed it, how he was misled by these advertisements and how these advertisements caused his injury. Id. at *9. The complaint was dismissed because it fail[ed] to identify which, if any, of the promotional materials were viewed by Plaintiff, and if they were, when these materials were viewed and how they induced Plaintiff to purchase Clenbutrx. Id. The Complaint presently before the Court is plagued by the same problems noted in Hammer. Nowhere in the sole paragraph devoted to Plaintiffs purchaseindeed, nowhere in the entire Complaintare the promotional materials viewed by Plaintiff identified, nor is the way in which these materials allegedly induced Plaintiffs purchase described. Instead, Defendant, and the Court, must select from the compendium of statements strewn through the Complaint and its accompanying exhibits to parse Plaintiffs claim. Never mind that the majority of these statements could not have been seen by Plaintiff at the time of purchase, as
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they are from marketing materials produced after the purchase in question and were made in places, such as the FitFlop website, which Plaintiff never alleges to have accessed or visited.3 Without specific allegations, neither the Defendant nor the Court can determine whether the statement Plaintiff allegedly relied upon was a potentially actionable statement, such as a statement regarding something detailed, specific and quantifiable, or mere puffery, such as statements about getting a workout while you walk. (Compl. at 34) Rule 9(b) requires particularity in pleading to avoid this very situation: a defendant who cannot determine what wrong it is accused of having committed, or even which of its products is at issue. See Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984) (Rule 9(b) requires plaintiffs to plead with particularity the circumstances of the alleged fraud in order to place defendants on notice of the precise misconduct with which they are charged, and to safeguard defendants against spurious charges of immoral and fraudulent behavior.) (Emphasis added). For the reasons above, the Complaint must be dismissed for Plaintiffs failure to plead essential facts of her transaction with the particularity required under Rule 9(b).

See footnote 2, supra.

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B. The Complaint Must Be Dismissed for Failure to State a New Jersey Consumer Fraud Act Claim. In addition to Plaintiffs fundamental failure to meet the pleading requirements of Rule 9, Plaintiff has also failed to state a claim under the New Jersey Consumer Fraud Act. To state a claim under the NJCFA, a plaintiff must allege: (1) unlawful conduct by the defendants; (2) an ascertainable loss on the part of the plaintiff; and (3) a causal relationship between the defendants unlawful conduct and the plaintiffs ascertainable loss. Frederico v. Home Depot, 507 F.3d 188, 202 (3d Cir. 2007). Plaintiff has not alleged any of these required elements, and, therefore, her claim should be dismissed. 1. Plaintiff Fails to Allege Unlawful Conduct. The unlawful practices prohibited by the NJCFA fall into three general categories: (1) affirmative acts; (2) knowing omissions; and (3) regulatory violations. Cox v. Sears Roebuck & Co., 138 N.J. 2, 17 (1994). Where a plaintiff alleges that a defendant has made material misrepresentations and the Complaint consists almost exclusively of allegations of affirmative misrepresentations, failure to identify the misrepresentation at issue is grounds for dismissal. See Kennedy Funding Inc. v. Lions Gate Dev., LLC, No. 05-4741, 2006 WL 1044807, at *7 (D.N.J. Apr. 18, 2006) (dismissing NJCFA claim where plaintiff failed to allege a false statement of material fact). Furthermore, the misrepresentation has to be one which is material to the transaction and which is a statement of fact, found to
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be false, made to induce the buyer to make the purchase. Adamson v. OrthoMcNeil Pharm., Inc., 463 F. Supp. 2d 496, 501(D.N.J. 2006) (quoting Gennari v. Weichert Realtors, 148 N.J. 582, 607 (1997)). Moreover, the NJCFA does not permit recovery for mere puffery. See Adamson, 463 F. Supp. 2d at 503-04 (granting motion to dismiss proposed class action where statements alleged to be misleading were either objectively true or puffery). The distinguishing characteristics of puffery are vague, highly subjective claims as opposed to specific, detailed factual assertions. Hammer, 2012 WL 1018842, at *7. Plaintiffs allegations are based on nothing more than a hodgepodge of advertisements, packaging materials, and web pages, the overwhelming majority of which Plaintiff apparently not only never saw, read, heard, watched, viewed, or relied upon in connection with her purchase of the FitFlop product, but could not have done so, since they were made after she allegedly made her FitFlop purchase.4 Furthermore, Plaintiff never identifies any statement that induce[d] the buyer to make the purchase. Adamson, 463 F. Supp. 2d at 501. Without the identification of a specific statement that induced Plaintiffs purchase, neither the Defendant nor the Court can determine whether she relied upon a true statement or simple puffery, both of which are insufficient to maintain an action under the
4

See footnote 2, supra.

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NJCFA. Accordingly, Plaintiff has failed to sufficiently plead unlawful conduct on the part of Defendant, and her claim must be dismissed. 2. Plaintiff Fails to Allege an Ascertainable Loss. To establish a claim under the NJCFA, a plaintiff must demonstrate an ascertainable loss, defined as a cognizable and calculable claim of loss due to the alleged CFA violation. Theidmann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 246 (2005). Specifically, the alleged loss must be quantifiable or measureable and calculated within a reasonable degree of certainty. Id. at 249. A plaintiff is required to plead specific facts setting forth and defining the ascertainable loss suffered. Solo v. Bed Bath & Beyond, Inc., No. 06-1908, 2007 WL 1237825, at *3 (D.N.J. Apr. 26, 2007) (citing Cox, 138 N.J. at 21 ([T]raditionally, to demonstrate a loss, a victim must simply supply an estimate of damages, calculated within a reasonable degree of certainty.); Dabush v. Mercedes-Benz USA, LLC, 378 N.J. Super. 105, 116 (App. Div. 2005) (The [NJCFA] does not provide for recovery for statutory damages where a plaintiff cannot show actual harm.)). Where a plaintiff fails to specifically allege that what he did receive was of lesser value than what was promisedor that he experienced a measurable out-of-pocket loss because of his purchase plaintiff will have failed to sufficiently plead an ascertainable loss. Solo, 2007 WL 1237825, at *3.
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Case 1:13-cv-02051-NLH-AMD Document 11-1 Filed 06/04/13 Page 19 of 39 PageID: 305

The District Court of New Jersey has found on a number of occasions that, even though a plaintiff may have properly alleged unlawful conduct, a complaint must be dismissed where it fails to properly allege an ascertainable loss. For example, in Solo, plaintiff alleged Bed Bath & Beyond had misrepresented, in its advertising and packaging, that the linens purchased by Plaintiff had thread counts of at least double their actual thread counts. Id. Moreover, plaintiff alleged that he and members of the proposed class purchased multi-ply bed linens and that Defendant misrepresented the thread count of these multi-ply linens and that he purchased a sheet set that was advertised as having a 1000 Thread Count but that the sheet set actually had a thread count of only 492. Id. Despite these seemingly specific allegations regarding defendants misrepresentations, plaintiffs allegations that he and the proposed Class and Subclass Members have suffered an ascertainable loss in that they purchased linens that were of a lower quality and less valuable than the linens they were promised were too broad and conclusory to demonstrate an actual loss. Id. Plaintiff failed to specifically allege that what he did receive 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. Id. In essence, plaintiff had claimed that what he received was different than what was advertised, but had failed to claim that what
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he received was not worth the amount paid or what the value was of what he did receive. The exacting analysis applied in Solo is regularly applied. For example, Franulovic v. Coca Cola Co., Nos. 07-539, 07-828, 2007 WL 3166953 (D.N.J. Oct. 25, 2007) concerned NJCFA claims regarding the beverage Enviga. The crux of the claim was that Coca-Cola and its business partners had fraudulently marketed the beverage, claiming that the product caused customers to burn more calories than consumed, thus creating a net caloric expenditure by drinking the beverage. It was alleged that not only did defendants commit affirmative acts of fraud by knowingly using advertisements that contained unsubstantiated claims, but that they also knowingly omitted the fact that one would have to drink approximately one hundred cans of Enviga to lose a single pound. Id. at *1-2. The Franulovic court dismissed the complaint because the plaintiff failed to identify an ascertainable loss. The court noted that the plaintiff had not alleged in her Complaint any particulars as to her own experience with Enviga, and did not allege when she purchased Enviga or for what price, how much of the beverage she purchased or consumed, which advertising enticed her to buy Enviga, her expectations for Enviga based on the advertising, or Envigas failure to live up to those expectations. Id. at *7. Plaintiffs claims only focus[ed] on Defendants

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Case 1:13-cv-02051-NLH-AMD Document 11-1 Filed 06/04/13 Page 21 of 39 PageID: 307

conduct, and she d[id] not allege that she, or others, actually purchased and consumed Enviga in order to obtain the advertised benefit. Id. at *9. Courts in the District of New Jersey have also dismissed claims made under the NJCFA where plaintiff fails, as here, to provide an ascertainable measure of damages. In Stewart v. Smart Balance, Inc., No. 11-6174, 2012 WL 4168584 (D.N.J. June 26, 2012), an NJCFA claim that defendants milk had been misleadingly labeled as Fat Free was dismissed because plaintiff failed to cite a suitable substitute product with properties similar to the allegedly mislabeled product for purposes of valuing plaintiffs loss. Id. at *11. Similarly, here, Plaintiff has cited no actual product as a point of comparison for measuring damages other than asserting that the approximate 60.00 retail price of FitFlop sandals is roughly double the price of other non-toning flip flops sold by competitors. (Compl. at 60; Emphasis added) Notwithstanding the referential play on words incorporated into the trademark, as demonstrated by the Exhibits attached to the Complaint, FitFlop footwear is neither a flip flop nor merely a brand of sandals. Plaintiff makes no attempt to point to any specific product as a point of comparison, alleging just a nebulous reference to competitors, with no allegation these unspecified products by unnamed competitors are similar in any way to the product Plaintiff purchased. Moreover, Plaintiffs complaint fails to account for the utility obtained by way of
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her purchase and use of the footwear at issue. See Smajlaj v. Campbell Soup Co., 782 F. Supp. 2d 84, 100-01 (D.N.J. 2011) (calculating ascertainable loss as the difference between the product received and the product promised); Franulovic, 2007 WL 3166953, at *9 (noting that plaintiff failed to take into account that she actually received a beverage for her money when alleging an ascertainable loss). Plaintiffs allegations are insufficient to successfully plead an ascertainable loss. Much like the dismissed complaints discussed above, Plaintiffs Complaint is focused on Defendants conduct, with little to no detail regarding Plaintiffs purchasing decision. Plaintiff here has not alleged which advertising enticed her to buy a pair of FitFlop footwear, her expectations regarding FitFlop footwear, or how FitFlop footwear failed to live up to those expectations. Franulovic, 2007 WL 3166953, at *7. Simply put, Plaintiff has identified neither the product she was promised, nor the product she received, and therefore cannot prove the economic loss resulting from the differential. Plaintiffs sole statement regarding her loss is that she purchased the premium-priced FitFlop Footwear in reliance on the truth of these claims and suffered injury in fact and lost money as a result of Defendants unlawful conduct by purchasing the falsely advertised FitFlop Footwear. (Compl. at 11) Plaintiffs allegations regarding the requisite ascertainable loss are nothing more than a threadbare recital of an essential

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element of her claim, Twombly, 550 U.S. at 555, and, therefore, the Complaint must be dismissed. 3. Plaintiff Fails to Allege a Causal Relationship Between the Alleged Unlawful Acts and the Alleged Ascertainable Loss. The NJCFA requires plaintiffs to prove a causal relationship between the alleged act of consumer fraud and the damages sustained. Cox, 138 N.J. at 39-40. A simple recitation of this element is insufficient to establish a causal relationship between the defendants unlawful conduct and the plaintiffs ascertainable loss. Parker, 2008 WL 141628, at *5. Indeed, in the context of advertisements, causation is particularly crucial under the Rule 9(b) heightened pleading requirements. Hammer. 2012 WL 1018842, at *9. In that regard, Plaintiff . . . must allege how his ascertainable loss was attributable to the unlawful conduct. Id. (Emphasis added). In other words, Plaintiff must allege where and when he saw the advertisement which contained the alleged misrepresentation. Id. (citing Gross v. Johnson & Johnson-Merck Consumer Pharm. Co., 303 N.J. Super. 336, 346 (App. Div. 1997) (NJCFA class could only include persons who saw the challenged advertisements and would not have purchased the Pepcid but for the challenged advertisements)) (Emphasis added). Plaintiff fails to plead a causal relationship sufficient under the extensive case law interpreting the NJCFA, stating only the bare recitation of the elements found insufficient in Parker, supra. See (Compl. at 11) ( [i]f she had known the
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truth about Defendants claims, she would not have purchased the FitFlop sandals.). Plaintiff fails to actually state what those claims were, and, in fact, does not allege to even have been in a position to see a majority of the advertisements in the Complaint. For example, Plaintiff never claims to have seen any web or print advertisements, yet those advertisements comprise the majority of the advertisements described in the Complaint.5 Plaintiff simply does not claim that any specific advertisement or claim contributed to her purchase. See Part IV(A)(1), supra. In this respect, the allegations in the Complaint suffer from the same deficiencies as the complaint in Franulovic. The court there held that plaintiff had failed to sufficiently plead causation as plaintiff did not allege that she purchased Enviga because of a certain misleading ad, or that she purchased the prescribed amount of Enviga and did not enjoy the advertised effects. Franulovic, 2007 WL 3166953, at *10. See also Smajlaj, 782 F. Supp. 2d at 106 (holding that plaintiffs could not rely upon web advertisements that plaintiffs did not allege to have seen). The Complaint simply fails to allege a causal connection between any specific statements made by Defendant and Plaintiffs purchasing decision, and must therefore be dismissed.

See Exhibits A and E to Plaintiffs Complaint, which bear internet addresses.

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C. The Complaint Must Be Dismissed for Failure to State a Breach of Express Warranty Claim. [I]n order to state a claim for breach of express warranty, [plaintiff] must properly allege: (1) that [defendant] made an affirmation, promise or description about the product; (2) that this affirmation, promise or description became part of the basis of the bargain for the product; and (3) that the product ultimately did not conform to the affirmation, promise or description. Arlandson v. Hartz Mountain Corp., 792 F. Supp. 2d 691, 706 (D.N.J. 2011). When a plaintiffs express warranty claim rests on bald assertions that fail to identify specific affirmations or promises, those claims are insufficient to overcome a motion to dismiss. Id. at 707. Similarly, a claim devoid of factual matter that simply states a conclusory recitation of the elements of the claims will be dismissed. Simmons v. Stryker Corp., No. 08-3451, 2008 WL 4936982, at *2 (D.N.J. Nov. 17, 2008). With regards to the first requirement, that defendant made an affirmation, promise or description about the product, an affirmation merely of the value of the goods or a statement purporting to be merely the sellers opinion or commendation of the goods does not create a warranty. N.J. Stat. Ann. 12A:2313 (West 2012); see also Arlandson, 792 F. Supp. 2d at 706 ([S]tatements that are nothing more than mere puffery are not considered specific enough to create an express warranty.) (citing In re Toshiba Amer. HD DVD Mktg. and Sales Practices Litig., No. 08-939, 2009 WL 2940081, at *15 (D.N.J. Sept. 11, 2009)
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(dismissing a breach of express warranty claim based on defendants statement that HD DVD players were for Today, Tomorrow, and Beyond as non-actionable puffery)). With regards to the basis of the bargain requirement, the law requires that the plaintiff, at the very least, should plead that she had seen or heard the warranty at issue. See, e.g., Cipollone v. Liggett Grp., Inc., 893 F.2d 541, 569 (3d Cir. 1990) (holding that jury instructions were erroneous regarding breach of express warranty claim as they did not require the plaintiff to prove that [she] had read, seen, or heard the advertisements at issue), affd in part, revd in part, 505 U.S. 504(1992); Hughes v. Panasonic Consumer Elec. Co., No. 10-846, 2011 WL 2976839, at *21 (D.N.J. July 21, 2011) (stating that plaintiffs had not sufficiently pled how this alleged affirmation of fact became the basis of the bargain when none of the plaintiffs allege that they were aware of this affirmation of fact at the time of purchase). Similarly, a plaintiff will have failed to sufficiently plead the final requirement that the product did not conform to the affirmation, promise or description, when she fails to allege how the product did not conform. See, e.g., Fid. and Guar. Ins. Underwriters, Inc. v. Omega Flex Inc., No. 12-2588, 2013 WL 1288184, at *8 (D.N.J. Mar. 26, 2013) (Hillman, J.) (granting motion to dismiss breach of express warranty claim in part because plaintiff did not specifically allege that the [product] did not conform to that affirmation, promise or description
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made by [defendant]); Hammer, 2012 WL 1018842, at *12 (dismissing breach of express warranty claim where the promise at issue was that a dietary supplement included dietary ingredients and plaintiff failed to allege that there were no dietary ingredients in the supplement). Plaintiff here fails to make any specific allegations establishing any of the required elements of a breach of express warranty claim. Given that Plaintiff has not identified any particular statement as the basis of the bargain, neither the Court nor the Defendant can distinguish whether the statement is puffery or an actionable statement. Moreover, the majority of the Complaint contains statements from print advertisements or the FitFlop website, two sources Plaintiff does not ever claim to have accessed or encountered, or statements made after Plaintiffs purchase. These statements simply could not have formed a basis of the bargain between the parties. Finally, Plaintiff never actually alleges that the product fell short of any specific claim made by Defendant. Plaintiffs threadbare allegations regarding her own purchase are insufficient for a proper allegation of breach of express warranty and, therefore, that claim should be dismissed. D. In the Alternative, Plaintiffs Demand for Class Certification Should Be Stricken In Its Entirety Under Fed. R. Civ. P. 12(f). In the alternative, if any portions of Plaintiffs claims remain, any demand for class certification on those claims should be stricken from the Complaint.

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Fed. R. Civ. P. 12(f) provides that any insufficient defense or any redundant, immaterial, or impertinent and scandalous matter may be stricken from a complaint. Where it is clear that a class action cannot be maintained based on the facts alleged in a complaint, a defendant may move to strike class allegations prior to discovery. Clark v. McDonalds Corp., 213 F.R.D. 198, 205 (D.N.J. 2003); Donachy v. Intrawest U.S. Hldgs., Inc., No. 10-4038, 2012 WL 869007, at *10 (D.N.J. Mar. 14, 2012). To sustain a class action, a plaintiff must satisfy both Rule 23(a) and 23(b) of the Federal Rules of Civil Procedure. Under Rule 23(a), a plaintiff must show that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties will fairly and adequately protect the interests of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). In addition, plaintiff must demonstrate that one of the requirements of Rule 23(b) is met. Since Plaintiff requests monetary damages, she must satisfy the requirements of Rule 23(b)(3), requiring a finding that questions of law or fact common to purported class members predominate over any questions affecting only individual members and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. See Fed. R. Civ. P. 23(b)(3). Rule 23(b)(3) identifies some
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matters pertinent to these findings: (A) the class members interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 310 n. 7 (3d Cir. 2008) (quoting Fed. R. Civ. P. 23(b)(3)). Federal courts have long recognized that where it is clear from the pleadings that plaintiffs cannot satisfy the requirements for class certification under Rule 23, the best course is to forego class certification discovery and simply strike the class allegations from the complaint. See Gen. Tel. Co. of SW v. Falcon, 457 U.S. 147, 160 (1982) ([s]ometimes the issues are plain enough from the pleadings to show that a class should not be certified); Green v. Green Mountain Coffee Roasters, Inc., 279 F.R.D. 275, 283-84 (D.N.J. 2011) (striking class allegations in NJCFA complaint prior to class certification discovery); Smith v. Lyons, Doughty & Veldhuius, P.C., No. 07-5139, 2008 WL 2885887, at *4 (D.N.J. July 23, 2008) (granting motion to strike where the complaint itself demonstrates that the requirements for maintaining a class action cannot be meteven if discovery has not yet taken place) (quoting Clark, 213 F.R.D. at 205 n.3).

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That is the case here. No amount of discovery can change the fact that Plaintiffs claims fail the predominance and superiority requirements of Federal Rule of Civil Procedure 23(b)(3) because each class members claims will necessarily turn on what advertisements and claimsif anyhe or she saw prior to their purchase, and what advertisements and claimsif anyhe or she found to be material to his or her purchasing decision. 1. Individual Issues Overwhelmingly Predominate. Plaintiffs seeking class certification must proveamong other thingsthat common issues applicable to the entire class predominate over individualized questions related to specific class members. See Fed. R. Civ. P. 23(b)(3). Rule 23s predominance inquiry tests whether [the] proposed classes are sufficiently cohesive to warrant adjudication by representation. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). If proof of essential elements of a cause of action requires individual treatment, then class certification is unsuitable. Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 172 (3d Cir. 2001). Furthermore, as the United States Supreme Court recently stated, dissimilarities within the proposed class undermine the usefulness of the tool. What matters to class certificationis not the raising of common questionseven in drovesbut, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.
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Wal-Mart v. Dukes, 131 S. Ct. 2541, 2551 (2011). As explained above, any determination of liability on both of Plaintiffs claims will focus upon which particular advertisement each class member saw prior to purchase, whether the class member ultimately found that advertisement to be material to the decision to purchase, and that class members experience with the product. Furthermore, Plaintiff attached a plethora of advertisements to her Complaint, containing a variety of messages, statistics, and claims about a wide array of products. Therefore, even if a class member could provide proof that he or she saw an advertisement and found an advertisement to be material to their purchasing decision, each class member would need to explain exactly which claim he or she was exposed to, and its role in the purchase decision. Meanwhile, Plaintiff fails to indicate or allege any particular statement she relied upon. Accordingly, any class trial held in this case would inevitably devolve into an examination of individual issues and a series of mini-trials, making class certification inappropriate. See, e.g., Mann v. TD Bank, N.A., No. 09-1062, 2010 WL 4226526, at *14 (D.N.J. Oct. 20, 2010) (denying certification of NJCFA class action where fact-intensive mini-trials would be required to determine class membership); Laney v. Am. Std. Cos., No. 07-3991, 2010 WL 3810637, at *18 (D.N.J. Sept. 23, 2010) (denying class certification to purchasers of allegedly defective toilets where the court would need to be presented with individualized
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experiences concerning each class members circumstances in order to determine whether those class members are entitled to recover); Szczubelek v. Cendant Mortg. Corp., 215 F.R.D. 107, 122 (D.N.J. 2003) (denying certification of NJCFA class action because individualized determinations of ascertainable loss would predominate). Further, Plaintiff cannot prove that every proposed class member suffered an ascertainable loss, or that that ascertainable loss was caused by Defendants alleged unlawful acts, both required under the statute. Class members would need to show, on an individual basis, what benefits were advertised to them, whether they received the advertised benefits, whether they received any benefit, and whether they suffered any ascertainable loss at all. Because such a showing is not possible on a class-wide basis, Plaintiffs class claims manifestly fail the requirements of Rule 23(b)(3) and should be stricken from the Complaint. 2. Plaintiffs Proposed Class Is Not Ascertainable and Will Include Plaintiffs Without Standing. In addition to the express requirements of Rule 23, courts have recognized two implicit ones. First, the named class representatives must have standing, that is, they must be members of the class they propose to represent. Second, the definition of the proposed class must be precise, objective and presently ascertainable. Gustafson v. Polk County, Wis., 226 F.R.D. 601, 607 (W.D. Wis. 2005) (internal citations omitted); Mann, 2010 WL 4226526, at *14 (refusing to
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certify proposed class that was too factually indeterminate because there is no systematic way for the Court to determine membership and which may have included plaintiffs that do not have legal claims against Defendants). Class definition is critical because it identifies the persons (1) entitled to relief, (2) bound by the judgment, and (3) entitled to notice in a Rule 23(b)(3) action. Manual for Complex Litigation 30.14 (3d ed. 1999). Currently, Plaintiffs class definition includes individuals who either did not see, or were not deceived by, Defendants advertisements; individuals who suffered no damages or ascertainable loss; givers of gifts; satisfied customers; and repeat purchasers of FitFlop footwear. Such individuals would lack standing to bring these claims, and yet, by the pleadings, are not excluded from the class. Therefore, the class allegations should be stricken for lack of ascertainability in order to avoid the time and expense of the discovery and motion practice associated with a motion for class certification that cannot succeed. 3. Plaintiff Lacks Standing to Bring Claims Related to Models of FitFlop Plaintiff Did Not Purchase Herself. Plaintiff purports to sue on behalf of all individuals who purchased any FitFlop Footwear in New Jersey during the class period. As such, Plaintiffs class is overbroad and must be stricken to the extent that it contains class members who

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purchased different models of FitFlop Footwear from the one purchased by Plaintiff.6 The United States Supreme Court has held that a plaintiff in a class action must show that she has personally been injured; indeed, the class plaintiff cannot rely on injuries suffered by other, unidentified members of the class. Lewis v. Casey, 518 U.S. 343, 357 (1996). Recently, courts have been especially conscious of this requirement in the context of consumer fraud, holding that a plaintiff must have been injured by each and every product for which she seeks to stand on behalf of other, unnamed class members. Lieberson v. Johnson & Johnson Consumer Co., 865 F.Supp. 2d 529 (D.N.J. 2011); Green v. Green Mountain Coffee Roasters, Inc., 279 F.R.D. 275 (D.N.J. 2011); see also Francis E. Parker Memorial Home, Inc. v. Georgia-Pacific LLC, No. 12-02441, 2013 WL 2177974, at *9 (D.N.J. May 20, 2013) (reaffirming Lieberson and Green). Plaintiff cannot represent individuals who purchased models of FitFlop Footwear that she herself did not purchase. The facts of Lieberson are particularly instructive.7 The defendant, Johnson & Johnson (J&J), produced a line of baby bath products marketed as helping
6

Plaintiff does not even allege the model of FitFlop Footwear she purchased. She only states: Plaintiff purchased a pair of bronze FitFlop sandals for approximately $60. (Compl. 11) 7 Green is equally informative. Plaintiff sought to sue on behalf of himself and others in New Jersey who purchased or received any Keurig Brewing Systems,
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babies to sleep better. Lieberson, 865 F. Supp. 2d at 533-35. The plaintiff purchased two of the products in the baby bath line but not the others. Id. Plaintiff later sought to certify a class of J&J customers who purchased any of the Bedtime Bath Products. Id. The Lieberson court recognized that [t]he standing inquiry does not change in the context of a putative class action . . . standing cannot be predicated on an injury which the plaintiff has not suffered, nor can it be acquired through the back door of a class action. Lieberson, 865 F.Supp. 2d at 537 (quotation omitted). That a suit may be a class action . . . adds nothing to the question of standing, for even named plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent. Id. (quoting Lewis, 518 U.S. at 357). Accordingly, the Lieberson court held that Plaintiff cannot establish standing to pursue a claim that products she neither purchased nor used did not work as advertised. Id. First, Plaintiffs class clearly must exclude those individuals who purchased FitFlop Footwear from the FF 2 range, which is built on a different technology (the Biomimetix midsole) than classic FitFlop Footwear (the Microwobbleboard

of which the company made approximately 12 models. Green, 279 F.R.D. 278-80. However, since plaintiff had only purchased and used one of these models, the Court would only consider Plaintiffs allegations pertaining to the model he purchased and dismissed the remaining allegations. Id. at 280.
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midsole).8 Unless Plaintiff alleges that she purchased FitFlop Footwear styles built on both midsoles, she does not have standing to sue on behalf of individuals who purchased the other technology.9 Second, Plaintiff does not even have standing to sue on behalf of individuals who did purchase the model or style of product she purchased. The facts at issue here are even clearer than those in Lieberson. In Lieberson, the plaintiff at least identified which of the defendants products she purchased. Lieberson, 865 F.Supp. 2d at 534. Here, the Plaintiff has not even done that, forcing the Defendant and the Court to guess at what model or style of Defendants footwear she is actually alleging do not perform as advertised. As shown in the Exhibits to the Complaint, FitFlop advertisements varied by season and showcased different styles and models of footwear at different times. Different advertisements focused on different attributes of the product, and therefore, the Plaintiff is not qualified to represent those who purchased different models or styles in reliance on different advertisements. Unless Plaintiff offers some allegation that she purchased each and every model of shoe Defendant produced (and she has not), she has no standing to bring
8

See Complaint Exhibit A (page 8) which discusses the different ranges of FitFlop Footwear and the different technologies. 9 Since Glaberson purchased in Spring 2010, her FitFlop footwear must contain Microwobbleboard technology, as the Biomimetix technology had not been released at that time.
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a suit for models she has not purchased. Plaintiffs class allegations must be stricken to the extent the Plaintiff seeks to sue on behalf of unnamed class members who purchased FitFlop Footwear in models or styles that the Plaintiff did not purchase.10 V. CONCLUSION A defendant accused of deceptive conduct has a right to particularized factual allegations, in order to place defendants on notice of the precise misconduct with which they are charged, and to safeguard defendants against spurious charges of immoral and fraudulent behavior. Seville Indus. Mach. Corp., 742 F.2d at 791. Plaintiff fails to plead such facts here, and her Complaint must accordingly be dismissed for failure to comport with Rule 9(b). In addition, Plaintiff fails to plead facts demonstrating the required elements of either a New Jersey Consumer Fraud Act or breach of express warranty claim. For all of these reasons, Plaintiffs Complaint must be dismissed. In the alternative, Plaintiffs class allegations must be stricken from the Complaint in their entirety because, on its face: (1) the Complaint fails to allege an ascertainable class because, as pled, class members lack standing to sue; (2) individual issues will necessarily predominate over class issues in this litigation;
10

Because the Complaint is insufficiently detailed, Defendant cannot even speak to the exact model the Plaintiff purchased and instead is forced to speak in generalities.
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and (3) Plaintiff lacks standing to bring claims related to products Plaintiff did not purchase. For the foregoing reasons, Defendant FitFlop USA, LLC respectfully requests that the Complaint be dismissed, or, in the alternative, that the class action allegations be dismissed. Respectfully submitted, Dated: June 4, 2013 Armonk, NY BOIES, SCHILLER & FLEXNER LLP By: /s/ Rosanne C. Baxter__________ Rosanne C. Baxter (NJ State Bar No. 032041989; D.N.J. No. RCB 6118) William S. Ohlemeyer (NY State Bar No. 3995651, pro hac vice admission pending) Brooke A. Alexander (NY State Bar No. 4678900, pro hac vice admission pending) 333 Main Street Armonk, New York 10504 Tel. (914) 749-8200 Fax. (914) 749-8300 Email rbaxter@bsfllp.com wohlemeyer@bsfllp.com balexander@bsfllp.com Attorneys for Defendant FitFlop USA, LLC

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CERTIFICATE OF SERVICE

I hereby certify that I caused a copy of the following document(s):

DEFENDANT FITFLOP USA, LLCS MEMORANDUM OF LAW IN SUPPORT [PROPOSED] ORDER

To be delivered via CM/ECF upon all counsel of record as indicated/listed on the United States District Court, District of New Jerseys CM/ECF registered e-mail list in the referenced matter.

Executed this 4th day of June, 2013, at Armonk, NY. By: /s/ Rosanne C. Baxter__________ BOIES, SCHILLER & FLEXNER LLP 333 Main Street Armonk, New York 10504 Tel. (914) 749-8200 Fax. (914) 749-8300 Email rbaxter@bsfllp.com

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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE CASE NO.: 1:13-cv-02051-NLHBARBARA GLABERSON, On Behalf of AMD Herself, All Others Similarly Situated and the General Public, [PROPOSED] ORDER Plaintiffs, v. FITFLOP USA, LLC, FITFLOP LIMITED, BRAND SLAM LTD., and MARCIA DIANE KILGORE, Defendants. Motion Day: July 15, 2013

Before the Court is the Defendants Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or, in the alternative, to Strike pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. Having considered the submissions of the parties and such other matters or arguments submitted to the Court, for good cause showing and for the reasons set forth in the Defendants papers, the Court hereby GRANTS Defendants motion [to Dismiss] [to Strike]. IT IS HEREBY ORDERED: [Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Plaintiffs Complaint is DISMISSED.]

Case 1:13-cv-02051-NLH-AMD Document 11-2 Filed 06/04/13 Page 2 of 2 PageID: 327

[Plaintiffs Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, is DENIED [in its entirety] [in part and GRANTED in part as follows: ] [Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, Plaintiffs class allegations are STRICKEN from the Complaint.] IT IS SO ORDERED. Dated: ________, 2013 Hon. Noel L. Hillman United States District Court Judge