United States District Court, D. Minnesota
BENJAMIN HUDOCK, BREANN HUDOCK, and GERALD DELOSS, individually and on behalf of all others similarly situated, Plaintiffs,
LG ELECTRONICS U.S.A., INC., BEST BUY CO., INC., BEST BUY STORES, L.P., and BESTBUY.COM, LLC, Defendants.
M. Cialkowski and Alyssa Leary, ZIMMERMAN REED, PLLP, Daniel
C. Hedlund, GUSTAFSON GLUEK PLLC, and Luke Hudock, HUDOCK LAW
GROUP, S.C., for plaintiffs.
Anne Wilkinson, HOGAN LOVELLS U.S. LLP, and Peter H. Walsh,
HOGAN LOVELLS U.S. LLP, for defendants.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS'
PARTIAL MOTIONS TO DISMISS
R. TUNHEIM CHIEF JUDGE
case arises from Plaintiffs Benjamin and Breann Hudock's
and Gerald DeLoss's respective purchases of televisions
purporting to have a 120Hz refresh rate. Plaintiffs allege
that the televisions, in fact, have a 60Hz refresh rate.
Plaintiffs filed this purported class action against LG
Electronics U.S.A., Inc. (“LG”) and Best Buy Co.,
Inc., Best Buy Stores, L.P., and BestBuy.com, LLC
(collectively “Best Buy”). Plaintiffs allege
violations of Minnesota and New Jersey consumer-fraud
statutes, as well as a number of common-law claims.
2016, LG and Best Buy filed motions to dismiss the Complaint,
in its entirety, pursuant to Fed.R.Civ.P. 12(b)(1) and
12(b)(6). On March 27, 2017, the Court granted
Defendants' motion in part. Relevant here, the Court
dismissed without prejudice the Hudocks' claim under the
New Jersey Consumer Fraud Act (“NJCFA”). The
Complaint was amended. Defendants renew their motion to
dismiss the NJCFA claim, and LG also moves to dismiss all the
claims of newly added Plaintiff Gerald DeLoss. For the
reasons set forth below, the Court will deny Defendants'
renewed motion to dismiss.
deciding the Defendants' first motion to dismiss, the
Court dismissed the Hudocks' NJCFA claim without
prejudice because nowhere in the original Complaint did they
“allege: (1) the amount . . . paid for the television;
or (2) the cost of a comparable LG television with a 60Hz
refresh rate. In the absence of this information, the Court
“ha[d] ‘no basis for valuing the products [the
Hudocks] received as opposed to the products they were
promised.'” Hudock v. LG Elecs. U.S.A.,
Inc., No. 16-1220, 2017 WL 1157098, at *7 (D. Minn. Mar.
27, 2017) (quoting Mladenov v. Wegmans Food
Mkts., Inc., 124 F.Supp.3d 360, 376 (D.N.J.
2015)) (second alteration in original).
Amended Complaint, the Hudocks state that they paid $499.99
for their LG television, and the newly added Plaintiff,
Gerald DeLoss, states that he paid $699.99 for his. (Am.
Compl. ¶¶ 73, 77, May 5, 2017, Docket No. 60.)
Plaintiffs also include in the Amended Complaint allegations
related to the cost of a comparable LG television with a 60Hz
refresh rate. They allege that “higher refresh rates
are directly, demonstrably and mathematically linked to
higher prices”; that “televisions with higher
refresh rates have more objective value and command a price
premium”; that “[t]elevisions with higher refresh
rate capabilities consistently command a quantifiable, 15-20%
higher Manufacturer's Suggested Retail Price
(“MSRP”)”; that Defendants are in
possession of the relevant MSRP data, sales data, and
manufacturing-cost data; that “an expert can perform a
hedonic regression analysis to isolate the exact value
associated with . . . the refresh rate”; and that
“an expert can conduct a conjoint analysis, involving a
scientific survey measuring consumer preferences, which can
isolate and quantify the premium attributable to refresh
rates in retail pricing.” (Id. ¶¶ 4,
62-67.) “Plaintiffs approximate their losses at 15-20%
of their purchase price, ” and they allege that they
“will be able to provide a detailed quantification of
damages both for the class and for themselves during the
appropriate stage of litigation.” (Id. ¶
67.) Plaintiffs do not allege the specific retail price of
comparable televisions with 120Hz refresh rates available for
purchase at the time that Plaintiffs purchased their
Amended Complaint also adds a second Plaintiff: Gerald
DeLoss, an Illinois resident, who purchased a 55” LG
55UF6450 television - a different model from the one that the
Hudocks purchased. (Id. ¶¶ 9, 74-78.)
DeLoss alleges that he too was misled into buying a
television that he thought had a 120Hz refresh rate, but that
actually had a 60Hz refresh rate. (Id.)
ask the Court to dismiss Plaintiffs' NJCFA claim with
prejudice under Rule 12(b)(6) for failure to state a claim,
arguing that the Plaintiffs have failed to plead an
ascertainable loss under the loss-in-value theory. Defendants
also ask the Court to dismiss all claims of newly added
Plaintiff DeLoss under Rules 8(a) and 9(b). Because
Plaintiffs plausibly plead a method of ascertaining damages
using expert testimony and analysis, and because DeLoss's
claims comply with Rules 8(a) and 9(b), the Court will deny
STANDARD OF REVIEW
reviewing a Rule 12(b)(6) motion, the Court views a complaint
in “the light most favorable to the nonmoving
party.” Longaker v. Bos. Sci. Corp., 872
F.Supp.2d 816, 819 (D. Minn. 2012). The Court considers all
facts alleged in the complaint as true to determine whether
the complaint states a “‘claim to relief that is
plausible on its face.'” Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir.
2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678. “Where a complaint pleads facts that are
‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility[, ]'” and therefore
must be dismissed. Id. (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 557 (2007)). Although the
Court accepts the complaint's factual allegations as
true, it is “not bound to accept as true a legal
conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)). Therefore, to survive
a motion to dismiss, a complaint must provide more than
“‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of
action.'” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555).