Julian v. TTE Technology, Inc.

• Court: District Court, N.D. California
• Decided: March 3, 2021
• Docket: 3:20-cv-02857
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHRISTOPHER JULIAN, et al., Case No. 20-cv-02857-EMC

8 Plaintiffs, ORDER GRANTING DEFENDANT’S 9 v. MOTION TO DISMISS SECOND AMENDED COMPLAINT 10 TTE TECHNOLOGY, INC., Docket No. 66 11 Defendant.

12 13 14 Plaintiffs are four individual consumers. They have filed a class action against Defendant 15 TTE Technology, Inc., alleging that the company engaged in false advertising with respect to its 16 televisions. Previously, the Court granted in part and denied in part TTE’s motion to dismiss 17 Plaintiffs’ first amended complaint (“FAC”) and gave Plaintiffs limited leave to amend. Plaintiffs 18 have since filed their second amended complaint (“SAC”) and TTE now challenges the SAC with 19 another motion to dismiss. This is the motion currently pending before the Court. Having 20 considered the parties’ briefs and accompanying submissions, as well as the oral argument of 21 counsel, the Court hereby GRANTS TTE’s motion.1 However, the Court shall give Plaintiffs 22 limited leave to amend with respect to their request for injunctive relief. 23 I. FACTUAL & PROCEDURAL BACKGROUND 24 In the SAC, Plaintiffs have asserted the following causes of action: 25 (1) Violation of California Business &Professions Code § 17200. 26 (2) Violation of California Business & Professions Code § 17500. 27 1 (3) Violation of the California Consumer Legal Remedies Act. See Cal. Civ. Code § 1750 2 et seq. 3 (4) Unjust enrichment under California law. 4 (5) Violation of the New Jersey Consumer Fraud Act. See N.J. Stat. Ann. § 58:8-1 et seq. 5 (6) Unjust enrichment under New Jersey law. 6 All causes of action are based on TTE’s advertising of its televisions as having a “120Hz 7 CMI effective refresh rate.” According to Plaintiffs, it is false or misleading for TTE to market 8 the televisions as having a “120Hz CMI effective refresh rate” when in fact the televisions have a 9 60Hz refresh rate. See, e.g., SAC ¶ 33 (alleging that “[a] 60Hz television . . . cannot, through 10 backlight scanning, be transformed into a 120Hz television”). Part of the relief Plaintiffs seek is a 11 permanent injunction which bars TTE “from engaging in the unlawful, unfair, and illegal acts and 12 practices alleged herein.” SAC, Prayer for Relief ¶ 6; see also SAC ¶¶ 98, 106 (in § 17200 and § 13 17500 claims, asking for an injunction). 14 In the pending motion, TTE argues that Plaintiffs have failed to adequately plead that they 15 have standing to seek injunctive relief. TTE also argues that any request for restitution as a 16 remedy should be dismissed, as the Court previously ordered in granting (in part) TTE’s motion to 17 dismiss the FAC. 18 II. DISCUSSION 19 A. Legal Standard 20 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain 21 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 22 complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil 23 Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss 24 after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic 25 Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must 26 . . . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 27 F.3d 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true 1 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a 2 complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient 3 allegations of underlying facts to give fair notice and to enable the opposing party to defend itself 4 effectively.” Levitt, 765 F.3d at 1135 (internal quotation marks omitted). “A claim has facial 5 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 6 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The 7 plausibility standard is not akin to a probability requirement, but it asks for more than a sheer 8 possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted). 9 B. Injunctive Relief 10 In its order granting (in part) TTE’s motion to dismiss the FAC, the Court held that 11 Plaintiffs had failed to adequately allege standing for injunctive relief. In the pending motion, 12 TTE argues that, in the SAC, Plaintiffs have still failed to establish standing for injunctive relief. 13 In the Ninth Circuit, Davidson v. Kimberly-Clark Corp., 889 F.3d 956 (9th Cir. 2018), 14 provides the yardstick by which district courts assess requests for injunctive relief in a false 15 advertising case. The plaintiff in Davidson had “paid extra for wipes labeled as ‘flushable’ 16 because she believed that flushable wipes would be better for the environment, and more sanitary, 17 than non-flushable wipes.” Id. at 961. According to the plaintiff, the wipes were not in fact 18 flushable because they were not suitable for disposal down a toilet – i.e., upon being flushed, the 19 wipes did not disperse in second or minutes thereafter. The plaintiff sought to recover the 20 premium she paid as well as an order requiring the defendant to stop marketing its wipes as 21 flushable. See id. 22 The main issue on appeal was whether the plaintiff had standing to seek the injunctive 23 relief she requested. The Ninth Circuit began by noting that standing requires an injury in fact that 24 is concrete, particularized, and actual or imminent. See id. at 967. The court underscored that, 25 “[f]or injunctive relief, which is a prospective remedy, the threat of injury must be ‘actual and 26 imminent, not conjectural and hypothetical.’” Id. (emphasis added). Also, “[w]here standing is 27 premised entirely on the threat of repeated injury a plaintiff must show ‘a sufficient likelihood that 1 The Ninth Circuit acknowledged that there was a split of authority as to whether, in a false 2 advertising case, a plaintiff could have standing for injunctive relief once she was aware of the 3 deceptive nature of the advertising.

4 We hold that a previously deceived consumer may have standing to seek an injunction against false advertising or labeling, even though 5 the consumer now knows or suspects that the advertising was false at the time of the original purchase, because the consumer may 6 suffer an “actual and imminent, not conjectural or hypothetical” threat of future harm. Knowledge that the advertisement or label 7 was false in the past does not equate to knowledge that it will remain false in the future. In some cases, the threat of future harm may be 8 the consumer’s plausible allegations that she will be unable to rely on the product’s advertising or labeling in the future, and so will not 9 purchase the product although she would like to. In other cases, the threat of future harm may be the consumer’s plausible allegations 10 that she might purchase the product in the future, despite the fact it was once marred by false advertising or labeling, as she may 11 reasonably, but incorrectly, assume the product was improved. Either way, we share one district court’s sentiment that we are “not 12 persuaded that injunctive relief is never available for a consumer who learns after purchasing a product that the label is false.” 13 14 Id. at 969-70 (emphasis added and in original). 15 As to whether the plaintiff in Davidson had adequately alleged standing for injunctive 16 relief, the Ninth Circuit held that she had.

17 Davidson alleged that she “continues to desire to purchase wipes that are suitable for disposal in a household toilet”; “would purchase 18 truly flushable wipes manufactured by [KimberlyClark] if it were possible”; “regularly visits stores . . . where [Kimberly-Clark’s] 19 ‘flushable’ wipes are sold”; and is continually presented with Kimberly-Clark’s flushable wipes packaging but has “no way of 20 determining whether the representation ‘flushable’ is in fact true.”

21 We are required at this stage of the proceedings to presume the truth of Davidson’s allegations and to construe all of the allegations in her 22 favor. Though we recognize it is a close question, based on the FAC’s allegations, we hold that Davidson adequately alleged that 23 she faces an imminent or actual threat of future harm due to Kimberly-Clark’s false advertising. Davidson has alleged that she 24 desires to purchase Kimberly-Clark’s flushable wipes. Her desire is based on her belief that “it would be easier and more sanitary to 25 flush the wipes than to dispose of them in the garbage.” As in Ries, the FAC is “devoid of any grounds to discount [Davidson’s] stated 26 intent to purchase [the wipes] in the future.”

27 Davidson has also sufficiently alleged an injury that is “concrete and wipes despite her desire to purchase truly flushable wipes. This 1 court recognizes a history of lawsuits based on similar informational injuries. 2 Davidson has also shown “a sufficient likelihood that [s]he will 3 again be wronged in a similar way. Despite now knowing that the “flushable” labeling was false at the time of purchase, “[s]hould 4 [Davidson] counter the denomination [‘flushable’] on a [Kimberly- Clark wipes package] at the grocery store today, [she] could not rely 5 on that representation with any confidence.” In other words, Davidson faces the similar injury of being unable to rely on 6 Kimberly-Clark’s representations of its product in deciding whether or not she should purchase the product in the future. 7 8 Id. at 970-72 (emphasis added). 9 In the instant case, two of the four named plaintiffs (Mr. Julian and Mr. Pacano) have tried 10 to map onto Davidson by alleging as follows: 11 • “As a result of [TTE’s] false and misleading statements, Plaintiff . . . paid more for 12 his [TTE] television than he would have paid had [TTE’s] advertising and 13 representations been truthful.” SAC ¶¶ 56, 63. 14 • “Plaintiff . . . would like to purchase a [TTE] television in the future if he knew he 15 could trust their [sic] refresh rate advertising. But, without a court ordering [TTE] 16 to fix their [sic] advertising, Plaintiff . . . has no way of knowing whether he can 17 trust [TTE’s] refresh rate advertising.” SAC ¶¶ 57, 64. 18 • “As a result of [TTE’s] false and misleading statements, Plaintiff . . . paid for a 19 television that [TTE] misrepresented as using technology and including technical 20 capabilities it did not actually have. Plaintiff would not have bought the television 21 but for [TTE’s] refresh rate (Hz) misrepresentations.” SAC ¶¶ 58, 65. 22 • Plaintiff has experienced poor picture quality when using the TTE television for, 23 e.g., action movies, sports, or video games. See SAC ¶¶ 59, 66. 24 1. Plausibility 25 As an initial matter, TTE argues that it is implausible that Mr. Julian and Mr. Pacano 26 would actually like to purchase a TTE television in the future. According to TTE, based on the 27 allegations above, these plaintiffs wanted a 120Hz television only, not a 60Hz television with 1 purchasing decisions.” Mot. at 9. 2 There are two problems with TTE’s argument. First, TTE has taken an overly narrow view 3 of the situation. The injunctive relief sought is not just about compelling TTE to market its 4 televisions as 60Hz televisions. Rather, the point of the injunctive relief is to prevent TTE from 5 engaging in false advertising so that Mr. Julian and Mr. Pacano can rely (as in Davidson) on 6 TTE’s advertising in the future – i.e., so that they can decide whether or not to purchase a 7 television from TTE. 8 Second, it is not altogether clear that Mr. Julian and Mr. Pacano would never buy a 9 television from TTE in the future. It is true that both individuals alleged that they would not have 10 bought the televisions but for the misrepresentation about the refresh rate. But the two men also 11 alleged that they paid more than they would have had they known the truth. It is not inherently 12 contradictory for Mr. Julian and Mr. Pacano to make both allegations (i.e., to assert that they 13 would not have bought the televisions or would have paid less for the televisions had there been 14 no false advertising). Notably, the plaintiff in Davidson made both allegations as well. See 15 Davidson, 889 F.3d at 962 (“Davidson would not have purchased the Scott Wipes, or would have 16 paid less for the Scott Wipes, had Kimberly-Clark not ‘misrepresented (by omission and 17 commission) the true nature of their Flushable Wipes.’”). 18 The situation here is different from that in Anthony v. Pharmavite, No. 18-cv-02636-EMC, 19 2019 U.S. Dist. LEXIS 1899 (N.D. Cal. Jan. 4, 2019). In Anthony, the defendant sold biotin 20 supplements. The labels for the supplements stated that the supplements “‘may support healthy 21 hair, skin and nails.’” Id. at *1. According to the plaintiffs, this representation on the labeling was 22 misleading because “most people obtain more than enough biotin from their daily diets, so biotin 23 supplements are unneeded, superfluous, and will provide no health benefits. Only a miniscule 24 percentage of individuals with biotin deficiencies could potentially benefit from biotin 25 supplements.” Id. at *1-2. This Court held that the plaintiffs in Anthony had failed to allege 26 standing to support injunctive relief. First, the plaintiffs did “not allege they intend to purchase 27 the Biotin Products again in the future. In fact, Plaintiffs allege ‘had [they] known the truth about 1 *16-17. Second,

2 Plaintiffs’ claim is predicated on the premise that, as a matter of scientific fact, biotin supplements “are unneeded, superfluous, and 3 will not provide any benefits” to anyone without a biotin deficiency. Id. ¶ 9. Thus, this is not a situation, like in Davidson, where 4 Plaintiffs “would [still] like to” purchase biotin supplements in the future if Pharmavite’s advertising were more truthful, or if 5 Pharmavite “improved” its Biotin Products. The import of Plaintiffs’ allegations is that Pharmavite can do nothing to alter its 6 advertising or product to make biotin supplements beneficial to Plaintiffs. Plaintiffs do not face the “injury of being unable to rely 7 on [Pharmavite]’s representations of its [Biotin Products] in deciding whether or not [they] should purchase the [Biotin Products] 8 in the future.” They therefore do not have standing to seek injunctive relief. 9 10 Id. at *17 (emphasis added). The Biotin Product had no inherent value to the Anthony Plaintiffs, 11 thus negating any possible intent to purchase it again. As is clear from the above, Anthony 12 presented a unique situation where (as alleged by the plaintiffs) the product was essentially useless 13 to the plaintiffs and could not be improved in any way. 14 2. Actual or Imminent Threat of Future Harm 15 TTE argues next that, even if it were plausible that Mr. Julian and Mr. Pacano would like 16 to purchase a TTE television in the future, they still have not adequately alleged standing because 17 they have not alleged an actual or imminent threat of future harm. 18 a. Likelihood of Being Deceived in the Future 19 According to TTE, there is no actual or imminent threat of future harm because, now that 20 the individuals know what is meant by “120Hz CMI effective refresh rate,” they will not be 21 deceived in the future: “merely looking at the online specifications or product label would clear 22 any ambiguity.” Mot. at 10. This argument is not persuasive for several reasons. 23 First, as above, TTE takes too circumscribed a view of matters. As indicated in Davidson, 24 the harm to Mr. Julian and Mr. Pacano here is their inability to rely TTE’s advertising. 25 Second, the cases that TTE cites are not persuasive authority and are distinguishable. For 26 example, in Cordes v. Boulder Brands USA, Inc., No. CV 18-6534 PSG (JCx), 2018 U.S. Dist. 27 LEXIS 217534 (C.D. Cal. Oct. 17, 2018), the defendant manufactured pretzels and sold them in 1 “slack fill”). The plaintiff bought a package of pretzels and was surprised to discover so much 2 slack fill. He filed suit, “claiming that the amount of slack-fill deceives consumers into believing 3 that Defendant’s packages contain more pretzels than they actually do.” Id. at *2. The defendant 4 moved to dismiss the plaintiff’s request for injunctive relief, arguing, inter alia, that the plaintiff 5 could “determine the amount of pretzels in a bag by reading the label or feeling the bag when 6 making future packages, so he does not need to rely upon the size of the package.” Id. at *7-8. 7 The court agreed with the defendant:

8 [N]ow that Plaintiff is on notice about potential underfilling, he could easily determine the number of pretzels in each package 9 before making a future purchase by simply reading the back panel, which lists the number of servings in each bag and the number of 10 pretzels in each serving. Or, he could feel the bag to determine whether it is filled with pretzels or air. Plaintiff has provided no 11 response to this argument, and nothing in his complaint explains why he will be unable to determine how many pretzels are in each 12 package – regardless of the amount of slack-fill – when contemplating future purchases. 13 The Court finds that under the circumstances of this case, Plaintiff 14 has not adequately explained why he will be deceived by slack-fill in the future, now that he knows that he can easily determine the 15 number of pretzels in each package by simply reading the label. This sets him apart from the plaintiff in Davidson, who could not 16 easily determine whether the defendant’s previous misrepresentations had been cured without first buying the product. 17 Because Plaintiff has not explained why he must rely on the size of the package in making future purchases, the Court finds that he has 18 not alleged an “actual and imminent” threat of future injury. 19 Id. at *12-14 (emphasis added); see also id. at *11 (noting that the Davidson plaintiff was not able 20 “to rely on the product’s label to know if any wipes she wished to purchase in the future could 21 actually be flushed”). Accord Matic v. United States Nutrition, Inc., No. CV 18-9592 PSG 22 (AFMx), 2019 U.S. Dist. LEXIS 131576, at *25 (C.D. Cal. Mar. 27, 2019) (noting that plaintiff 23 failed to explain how he was likely to be deceived by the size of a protein powder container in the 24 future; “[p]laintiff has not contested the accuracy of the product weight information on the label 25 and he now knows from opening the protein powder container exactly how much protein powder 26 the weight on the label corresponds to”).) 27 In Joslin v. Clif Bar & Co., No. 4:18-cv-04941-JSW, 2019 U.S. Dist. LEXIS 192100 (N.D. 1 manufactured and sold energy bars, including ones labeled “white chocolate.” The plaintiffs filed 2 suit because the “white chocolate” bars did not actually contain white chocolate: as reflected in the 3 ingredients list, the contents of the bars included cocoa butter but not “any of the dairy ingredients 4 cited in regulations issued by the [FDA] regarding the standard of identity for white chocolate.” 5 Id. at *2. According to the defendant, the plaintiffs did not have standing to seek injunctive relief 6 because, inter alia, the plaintiffs could not “possibly be deceived in the future” in light of the fact 7 that “white chocolate is not listed on the Products’ ingredient list and the front of the package 8 includes the phrase ‘Natural Flavor,’ thereby disclosing to Plaintiffs that ‘real’ white chocolate is 9 not an ingredient.” Id. at *10. Judge White agreed with the defendant, noting that, “[a]lthough 10 some part of a product’s packaging may be misleading, when another part of that product’s 11 packaging discloses the truth of the product, district courts have held that a plaintiff’s knowledge 12 of the truth forecloses the risk of future harm.” Id. Like the Cordes court, the Joslin court 13 distinguished Davidson: while the Davidson plaintiff

14 could not know without purchasing the flushable wipes whether the wipes were truly flushable, Plaintiffs do not need to purchase the 15 Products again in order to know whether the Products contain white chocolate. Instead, Plaintiffs need only inspect the ingredient list to 16 discovery that the Products do not contain white chocolate. Additionally, the Products’ labels contain the phrase “Natural 17 Flavor.” Plaintiffs do not address that phrase in their complaint, but that phrase may serve to show the characterizing taste of white 18 chocolate and macadamia nut is from flavor rather than the real ingredient. 19 20 Id. at *12. Accord Rahman v. Mott’s LLP, No. 13-cv-03482-SI, 2018 U.S. Dist. LEXIS 164620, 21 at *9-10 (N.D. Cal. Sept. 25, 2018) (noting that, in Davidson, “there was a continued risk that the 22 plaintiff could not rely on the label to determine whether wipes were flushable in the future”; here, 23 “[u]nlike Davidson, where a consumer’s inability to rely on packaging misrepresentations in the 24 future was an ongoing injury, Rahman is able to rely on the packaging now that he understands the 25 ‘No Sugar Added’ label”); Yothers v. Jfc Int’l, No. 20-cv-01657-RS, 2020 U.S. Dist. LEXIS 26 156470, at *14 (N.D. Cal. May 14, 2020) (noting that “Plaintiffs now know, even if they did not 27 when they purchased defendants’ product, that 95-99% of wasabi products sold in North America 1 ingredient lists, to know whether the products they are purchasing fall into that vast majority[;] 2 [u]nlike in Davidson, where the plaintiffs would have to purchase the defendant’s wipes, take 3 them home, and test their plumbing to know if the product was improved, plaintiffs here can 4 simply read the packaging, before purchasing, and make an informed decision”). 5 Cordes and Joslin, of course, are not binding authorities. And not all courts have agreed 6 with their reasoning. For example, in Shank v. Presidio Brands, Inc., No. 17-cv-00232-DMR, 7 2018 U.S. Dist. LEXIS 70134 (N.D. Cal. Apr. 25, 2018), Judge Ryu rejected the reasoning 8 animating those cases. In Shank, the defendant advertised its Every Man Jack products as natural, 9 naturally derived, nontoxic, and so forth. The plaintiff alleged that this was false advertising 10 because the products actually contained numerous ingredients that were artificially engineered 11 through multiple synthetic processes. See id. at *2. According to the plaintiff, he would like to 12 buy the defendant’s products in the future – if they were reformulated to contain all-natural 13 ingredients – but he was hesitant to rely on the defendant’s labeling due to the misrepresentations 14 being challenged in the lawsuit. See id. at *8. 15 The defendant argued that the plaintiff did not have standing to seek injunctive relief. 16 According to the defendant, the plaintiff in Davidson had standing because, if she wanted to buy 17 flushable wipes in the future, she did not have a

18 ready means to verify whether the wipes were actually flushable. By contrast, . . . [the Shank plaintiff] “faces no risk of repeated 19 injury from being misled,” because he can simply look at the product’s ingredients list and “easily determine at the time of 20 purchase if the same allegedly offensive ingredients are still present.” 21 22 Id. at *9. 23 Judge Ryu noted that “Davidson did not address the exact defense argument presented 24 here” but concluded that “Davidson’s favorable citations to two decisions suggests that the Ninth 25 Circuit would reject [the defendant’s] reasoning.” Id. at *10. 26 • First, the Davidson court cited to Lilly v. Jamba Juice Co., No. 13-cv-02998-JST, 27 2015 U.S. Dist. LEXIS 34498 (N.D. Cal. Mar. 18, 2015), where the district court 1 is false, she doesn’t know that another, later representation by the same 2 manufacturer is also false. . . . A material representation injures the consumer not 3 only when it is untrue, but also when it is unclear whether or not it is true.” Id. at 4 *9 (emphasis in original). 5 • Second, and more important, the Davidson court cited to Ries v. Arizona Beverages 6 USA LLC, 287 F.R.D. 523 (N.D. Cal. 2012). In Ries, the plaintiffs claimed that the 7 defendants had falsely advertised their iced tea as “All Natural” and “100% 8 Natural” because the products actually contained high fructose corn syrup and citric 9 acid. The defendants argued that the plaintiffs lacked standing because they were 10 not “threatened by future harm”: “they are now aware of the contents of AriZona 11 beverages, and can no longer be deceived.” Id. at 533. The Ries court disagreed: 12 “Plaintiffs request to be relieved from false advertising by defendants in the future, 13 and the fact that they discovered the supposed deception some years ago does not 14 render the advertising any more truthful. Should plaintiffs encounter the 15 denomination ‘All Natural’ on an AriZona beverage at the grocery store today, they 16 could not rely on that representation with any confidence.” Id. 17 Judge Ryu emphasized that Ries was especially telling because, there, the plaintiff could 18 have just looked for “the words ‘high fructose corn syrup’ on the bottle’s ingredients list during 19 any future contemplated beverage purchase.” Shank, 2018 U.S. Dist. LEXIS 70134, at *12. 20 “Davidson’s adoption of the analysis in Ries strongly suggests that the Ninth Circuit would reject 21 [the defendant’s] reasoning that a plaintiff cannot establish standing for injunctive relief if she can 22 check whether she is being lied to by examining the fine print on a product label.” Id. Judge Ryu 23 also pointed out that, in Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir. 2008), the Ninth 24 Circuit had held that a reasonable consumer should not “be expected to look beyond misleading 25 representations on the front of [packaging] to discover the truth from the ingredient list in small 26 print on the side of the [packaging].” Id. at 939. 27 Judge Ryu’s analysis in Shank is persuasive. However, even if the Court were to follow 1 to information to test the veracity of the representation.” Shank, 2018 U.S. Dist. LEXIS 70134, at 2 *16. Here, in contrast, Mr. Julian and Mr. Pacano do not have such ready access prior to 3 purchasing. Rather, the two plaintiffs here are like the Davidson plaintiff who could not know 4 whether wipes were truly flushable without purchasing them. Mr. Julian and Mr. Pacano could 5 not know whether the TTE televisions were truly 120Hz or 60Hz without purchasing them. 6 b. Repeat Injury 7 TTE maintains that, even if the Court is not persuaded by Cortes and Joslin, there is a 8 second, independent reason why there is no actual or imminent threat of future harm here. That is, 9 there is no actual or imminent threat of future harm because, even though Mr. Julian and Mr. 10 Pacano have claimed they would like to purchase a TTE television in the future, there is nothing 11 concrete to suggest that there is a real intent there. In other words, TTE has challenged the 12 plausibility of Plaintiffs’ asserted interest in purchasing another TTE television within the 13 discernible future. TTE underscores that, in Davidson, the plaintiff had made additional 14 allegations – e.g., that she “‘regularly visits stores . . . where [Kimberly-Clark’s] “flushable” wipes 15 are sold’[] and is continually presented with Kimberly-Clark’s flushable wipes packaging.” 16 Davidson, 889 F.3d at 970. The Ninth Circuit also noted in Davidson that the operative complaint 17 was “‘devoid of any grounds to discount [the plaintiff’s] stated intent to purchase [the wipes] in 18 the future.’” Id. at 971. 19 There is case law that supports TTE’s views on Davidson. For example, in Anderson v. 20 Apple Inc., No. 3:20-cv-02328-WHO, 2020 U.S. Dist. LEXIS 214085 (N.D. Cal. Nov. 16, 2020), 21 the plaintiffs alleged that the defendant misled them about the capabilities of one of its 22 smartphones, the iPhone XR. The defendant argued that the plaintiffs did not have standing to 23 seek injunctive relief because none had alleged an intent to purchase another iPhone XR in the 24 future. Judge Orrick agreed: “[N]one of them has alleged (in the FAC) a desire to purchase the 25 iPhone XR in the future. None of them has alleged a desire to purchase another smartphone 26 instead of the iPhone XR in the future.” Id. at *21. Judge Orrick then noted: “And none of them 27 has alleged that such a desire has any imminence.” Id. (emphasis added). In Nelson v. Seaworld 1 Oct. 13, 2020), Judge White was even more explicit. The plaintiffs had filed suit against the 2 defendant, claiming that the defendant had made misrepresentations about captive orcas and/or the 3 defendant’s treatment of captive orcas. In bench trial conclusions and findings, Judge White noted 4 that, to have standing for injunctive relief, “a plaintiff must prove they want to or intend to 5 purchase the product in the future.” Id. at *37. Here, the plaintiffs did not provide testimony 6 “suggest[ing] they regularly were confronted with Seaworld’s allegedly false statements, which . . 7 . differentiates them from the plaintiff in Davidson, who alleged she ‘regularly visit[ed] stores 8 that’ sold the defendant’s wipes and, thus, was regularly confronted with the alleged false 9 advertising and could not determine if the wipes were truly flushable from the packaging.” Id. at 10 *38. 11 The Court finds the analysis in Anderson and Nelson persuasive. The plaintiff in Davidson 12 had alleged it was likely that she would be making a decision to purchase in the near future given 13 her regular visiting of stores that sold the wipes. Moreover, the Supreme Court has underscored 14 that “some day” intentions for the future are not sufficient to establish standing. In Lujan v. 15 Defenders of Wildlife, 504 U.S. 555 (1992), where the Supreme Court noted as follows with 16 regard to whether an environmental organization had standing to challenge a federal regulation:

17 [The] profession [made by members of the organization in affidavits] of an “intent” to return to the places they had visited 18 before – where they will presumably, this time, be deprived of the opportunity to observe animals of the endangered species – is 19 simply not enough. Such “some day” intentions – without any description of concrete plans, or indeed even any specification of 20 when the some day will be – do not support a finding of the “actual or imminent” injury that our cases require. 21 22 Id. at 564; cf. Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (“[p]ast wrongs were evidence 23 bearing on ‘whether there is a real and immediate threat of repeated injury’ [b]ut the prospect of 24 future injury rested ‘on the likelihood that [plaintiffs] will again be arrested for and charged with 25 violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing 26 before petitioners’”).2 27 1 Accordingly, the Court concludes that, based on the current allegations in the pleading, 2 Plaintiffs have failed to establish standing to seek injunctive relief. Plaintiffs’ conclusory 3 allegation that they intend to purchase a TTE television without any factual allegations to suggest 4 a purchase in the relatively near or forseeable future is not sufficient, at least in the context where, 5 as here, the goods are not, e.g., consumable items that are bought on a repeat basis as in Davidson, 6 but rather a durable good not typically purchased on a regular basis. The Court, however, shall 7 have Plaintiffs one final opportunity to cure this deficiency, if they can do so in good faith. See 8 Fed. R. Civ. P. 11. 9 C. Restitution 10 In its order granting (in part) TTE’s motion to dismiss the FAC, the Court noted that 11 Plaintiffs sought equitable relief and that equitable relief can come in different forms such as 12 injunctive relief and restitution. To the extent Plaintiffs sought restitution as an equitable remedy 13 – whether for their § 17200, § 17500, CLRA, California unjust enrichment, or New Jersey unjust 14 enrichment claims – the Court held that Plaintiffs had failed to allege an inadequate remedy at law. 15 See, e.g., Docket No. 61 (Order at 7) (noting that, “on the face of the complaint, it appears that 16 what Plaintiffs[] claim for damages and restitution are not really different” – e.g., to the extent 17 Plaintiffs alleged that they would have paid less for the televisions had they known the truth, that 18 measure could be obtained as restitution because, in a mislabeling case, the measure of restitution 19 is the amount necessary to compensate the purchaser for the difference between a product as 20 labeled and the product as received). The Court therefore dismissed the claims to the extent they 21 sought restitution as relief. The dismissal, however, was without prejudice so that, if Plaintiffs 22 were to uncover during discovery a basis for claiming that legal remedies did not provide for 23 adequate relief, they could seek leave to amend. 24 In the pending motion, TTE contends that Plaintiffs failed to hew to the Court’s order 25 because they continue to seek restitution as a remedy – specifically, for the § 17200, § 17500, 26 California unjust enrichment, and New Jersey unjust enrichment claims. 27 1 1. Claims Under §§ 17200 and 17500 2 For the § 17200 and § 17500 claims, Plaintiffs formally eliminated references to the term 3 “restitution.” However, they continue to seek restitution as evidenced by the following 4 allegations: 5 • § 17200 claim: “Plaintiffs request that this Court enter such orders or judgments as 6 may be necessary to enjoin [TTE] from continuing its unfair, unlawful and/or 7 deceptive practices, and to restore to Plaintiffs and the California Class the monies 8 that [TTE] acquired by means of such unfair competition.” SAC ¶ 98 (emphasis 9 added). 10 • § 17500 claim: The same basic allegation above is repeated in ¶ 106 of the SAC. 11 In their papers, Plaintiffs offered no real defense for continuing to seek restitution for the § 12 17200 and § 17500 claims. At the hearing, however, Plaintiffs explained that they were simply 13 including the allegations to preserve their rights on appeal. In light of this representation, the 14 Court deems this part of TTE’s motion to dismiss moot. The Court adheres to its prior ruling on 15 requests for restitution; that is, the requests for restitution are dismissed without prejudice, but 16 without, at this point, leave to amend. 17 2. California and New Jersey Unjust Enrichment Claims 18 Similar to above, for the two unjust enrichment claims, Plaintiffs have formally eliminated 19 references to “restitution.” But they still seem to seek restitution based on the following 20 allegations: 21 • California unjust enrichment claim: “[TTE] has unjustly retained profits and should 22 be required to make Plaintiffs whole.” SAC ¶ 130. 23 • New Jersey unjust enrichment claim: The same basic allegation as above is 24 repeated in ¶ 147 of the SAC. 25 Moreover, Plaintiffs’ inclusion of the unjust enrichment claims is problematic because the Court 26 dismissed the claims in their entirety (without prejudice but without specific leave to amend 27 1 either) because the only relief being sought for the claims was restitution.3 2 Here, unlike the above, Plaintiffs have presented an argument as to why they have included 3 the unjust enrichment claims in the SAC, in spite of the Court’s prior order. Essentially, Plaintiffs 4 argue that their unjust enrichment claims should be considered actions at law (not in equity) for 5 which they seek a legal remedy (not an equitable remedy). 6 Arguably, the Court should reject Plaintiffs’ argument outright because (1) Plaintiffs are 7 essentially asking the Court to reconsider its prior ruling and (2) under the Civil Local Rules, 8 reconsideration is not permitted if a party did not make the argument in its prior briefing. See Civ. 9 L.R. 7-9(b)(3) (providing that a party moving for leave to file a motion to reconsider must show 10 “[a] manifest failure by the Court to consider material facts or dispositive legal arguments which 11 were presented to the Court before [its] interlocutory order”) (emphasis added). Plaintiffs could 12 have made their argument in their earlier briefing because (1) TTE’s argument that equitable relief 13 in the form of restitution is improper if there is an adequate remedy at law was based on Sonner v. 14 Premier Nutrition Corp., 962 F.3d 1072 (9th Cir. 2020), and (2) in Sonner, the Ninth Circuit 15 expressly noted that there is a distinction between “restitution at law” and “restitution in equity.” 16 See id. at 1076 n.2 (citing to Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 214 17 (2002), for making this distinction). 18 But even if the Court were to address Plaintiffs’ argument on the merits, they would fare 19 no better. Plaintiffs are correct that, in Great-West, the Supreme Court recognized restitution can 20 lie in equity at times and at law in others: “not all relief falling under the rubric of restitution is 21 available in equity. In the days of the divided bench, restitution was available in certain cases at 22 law, and in certain others in equity.” Great-W., 534 U.S. at 212. The Supreme Court added:

23 In cases in which the plaintiff “could not assert title or right to possession of particular property, but in which nevertheless he might 24 be able to show just grounds for recovering money to pay for some benefit the defendant had received from him,” the plaintiff had a 25 right to restitution at law through an action derived from the common law writ of assumpsit. In such cases, the plaintiff’s claim 26 was considered legal because he sought “to obtain a judgment 27 imposing a merely personal liability upon the defendant to pay a 1 sum of money.” Such claims were viewed essentially as actions at law for breach of contract (whether the contract was actual or 2 implied).

3 In contrast, a plaintiff could seek restitution in equity, ordinarily in the form of a constructive trust or an equitable lien, where money or 4 property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the 5 defendant’s possession. A court of equity could then order a defendant to transfer title (in the case of the constructive trust) or to 6 give a security interest (in the case of the equitable lien) to a plaintiff who was, in the eyes of equity, the true owner. But where “the 7 property [sought to be recovered] or its proceeds have been dissipated so that no product remains, [the plaintiff’s] claim is only 8 that of a general creditor,” and the plaintiff “cannot enforce a constructive trust of or an equitable lien upon other property of the 9 [defendant].” Thus, for restitution to lie in equity, the action generally must seek not to impose personal liability on the 10 defendant, but to restore to the plaintiff particular funds or property in the defendant’s possession. 11 12 Id. at 213-14. 13 But New Jersey law still considers restitution for unjust enrichment as an equitable 14 remedy. See Nat’l Amusements, Inc. v. N.J. Tpk. Auth., 261 N.J. Super. 468, 478 (1992) 15 (“Assuming, arguendo, that plaintiff could prove a substantive claim of unjust enrichment, 16 plaintiff would still not recover under a theory of quasi-contractual liability. Restitution for unjust 17 enrichment is an equitable remedy, available only when there is no adequate remedy at law.”). 18 As for California law, Plaintiffs are correct that there are cases indicating that (1) claims 19 for assumpsit or quasi-contract are essentially viewed as claims predicated on an unjust 20 enrichment theory, see Bruton v. Gerber Prods. Co., No. 12-CV-02412-LHK, 2018 U.S. Dist. 21 LEXIS 149404, at *28 (N.D. Cal. Aug. 31, 2018) (stating that “[t]he Ninth Circuit in Astiana 22 confirmed that [w]hen a plaintiff alleges unjust enrichment, a court may construe the cause of 23 action as a quasi-contract claim seeking restitution”) (internal quotation marks omitted); Philpott 24 v. Superior Court, 1 Cal. 2d 512, 518 (1934) (stating that an action in assumpsit is designed to 25 prevent unjust enrichment of a defendant from the property of a plaintiff), and that (2) these claims 26 are considered claims at law rather than claims in equity. See id. at 522 (stating that such a claim 27 is one at law, even though the plaintiff’s right to recover is governed by equitable principles). But 1 legal one brought before a court at law, equitable principles still govern – this would suggest that 2 a plaintiff would still have to show an inadequate remedy at law. Here, Plaintiffs have still failed 3 to articulate (even when expressly asked at the hearing) a difference between what they could 4 obtain as damages and as “restitution.” 5 Accordingly, the Court dismisses both the New Jersey and California unjust enrichment 6 claims. The Court, however, adheres to its prior ruling that the dismissal of the claims is without 7 prejudice, such that, should Plaintiffs discover, in the future, a basis for arguing that there is a 8 difference between damages and restitution, they may seek leave to amend. 9 III. CONCLUSION 10 For the foregoing reasons, TTE’s motion to dismiss is granted. 11 • The request for injunctive relief is dismissed but with leave to amend. Plaintiffs 12 must file their amended complaint within three weeks of the date of this order. 13 TTE shall then have three weeks to respond to the amendment. 14 • The claims for unjust enrichment are dismissed. The dismissal is without 15 prejudice. 16 This order disposes of Docket No. 66. 17 18 IT IS SO ORDERED. 19 20 Dated: March 3, 2021 21 22 ______________________________________ EDWARD M. CHEN 23 United States District Judge 24 25 26 27