1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 ANTONIO MCKINNEY, and CLINT Case No. 22-cv-00312-CRB SUNDEEN, each individually and on 9 behalf of all others similarly situated, ORDER GRANTING IN PART AND 10 Plaintiffs, DENYING IN PART DEFENDANT’S MOTION TO DISMISS 11 v.
12 CORSAIR GAMING, INC.,
13 Defendant.
14 Plaintiffs Antonio McKinney and Clint Sundeen allege that Defendant Corsair 15 Gaming, Inc.’s (“Corsair”) packaging of and advertisements for its computer memory 16 cards contain deceptive and misleading statements, in violation of the common law and the 17 consumer protection laws of California and 43 other states. FAC ¶¶ 76-140. Before the 18 Court is Corsair’s Motion to Dismiss the First Amended Complaint (“MTD”) (dkt. 27). 19 The Court GRANTS the motion to dismiss as to (1) claims based on advertisements, (2) 20 omissions claims, (3) equitable claims, (4) negligent misrepresentation claims, and (5) 21 class claims with respect to products they did not purchase. The Court DENIES the 22 motion as to (1) misrepresentation claims based on statements on the packaging, (2) breach 23 of express warranty claims, and (3) class claims brought under the laws of other states. 24 I. BACKGROUND 25 A. The Parties 26 Plaintiffs McKinney and Sundeen are citizens of California who purchased Corsair 27 memory products. FAC ¶¶ 6-7, 56, 59. Plaintiffs bring this putative class action on behalf 1 the United States. FAC ¶ 5. 2 Defendant Corsair is a company headquartered in California and incorporated in 3 Delaware, and it sells “premium, high-speed computer memory.” FAC ¶¶ 1, 9. 4 B. The First Amended Complaint 5 Plaintiffs allege the following. Corsair’s “flagship” products are its high-speed 6 computer memory sticks. FAC ¶ 14. These memory sticks function when they are 7 plugged into the memory slots of a PC. Id. In its advertisements and on its packaging, 8 Corsair lists a speed rating that signifies “how fast the memory can transfer data,” 9 measured in Megahertz (MHz). Id. ¶ 15. The higher the number of MHz, the faster the 10 memory (and the PC) performs. Id. Corsair markets these memory sticks to computer 11 gamers who want to improve game performance, and sells the products in physical stores, 12 through online vendors, and on its website. Id. ¶¶ 13, 19. Both Plaintiffs bought Corsair 13 products that displayed a speed of 3200 MHz on the packaging. FAC ¶¶ 56-59. Plaintiffs 14 also intend to represent a nationwide class of consumers who purchased Corsair memory 15 products with other speeds advertised on the packaging. FAC ¶¶ 29, 62. 16 Nothing on the packaging or inside the packaging qualifies the listed speed. Id. 17 ¶ 18. Corsair advertises the MHz listing on its physical product packaging, and its online 18 advertisements also make claims highlighting the speed and reliability of its memory 19 products. Id. ¶¶ 19, 23. Plaintiffs include sample advertisements for Corsair memory 20 products and allege that Corsair made specific statements in these online ads. Id. ¶¶ 20-23. 21 In their complaint, Plaintiffs seem to state two different theories for their claims: an 22 “out-of-the-box” theory and a “substantial risk” theory. 23 1. Out-of-the-Box Theory 24 Plaintiffs allege that the representations of a specific speed indicate to reasonable 25 consumers that the memory will run at the stated speed out of the box, i.e., after being 26 plugged into a computer without additional action by the consumer. Id. ¶¶ 24-25. This 27 makes sense because, when consumers buy a new computer, the memory comes 1 (which is bought to add to or replace an existing PC’s memory) is advertised to run at 2 “common, standard speeds,” it runs at the stated speed reliably and out of the box. Id. 3 But Plaintiffs allege that Corsair’s 3200 MHz memory sticks do not operate at the 4 advertised speed out of the box. Id. ¶¶ 25, 29-30. They allege that the memory runs at 5 only 2133 MHz—the standard operating speed for PC memory—and it may never achieve 6 the advertised speed depending on the computer platform. Id. ¶¶ 27, 29-32.1 7 2. Substantial Risk Theory 8 Plaintiffs’ second theory is that, when consumers optimize their system to run the 9 memory, there is a substantial risk that the memory still does not work reliably. Corsair 10 advertises that the memory products are “‘optimized’ for overclocking on the latest Intel 11 and AMD motherboards.” Id. ¶ 23. “Overclocking” refers to running computer 12 components (like memory) at higher than standard speeds. Id. Overclocking requires 13 adjusting a computer’s Basic Input/Output System (BIOS) or Unified Extensible Firmware 14 Interface (UEFI) settings, which on many computers are accessible only by “restarting the 15 computer and repeatedly pressing a designated keyboard button . . . during a brief window 16 of time after the computer turns on.” Id. ¶¶ 33, 34. 17 But Plaintiffs allege that the process of “overclocking” is not reliable. Id. ¶¶ 32-33. 18 There is a “substantial risk that the user’s particular combination of other computer 19 components . . . simply cannot support overclocking at the advertised speed.” Id. ¶ 42. A 20 blog post on Corsair’s website authored by a Corsair employee admits that the ability to 21 achieve high speeds through the process of overclocking is a “lottery.” Id. ¶ 32. 22 Additionally, overclocking “poses material risks to the functionality of the computer 23 system, as well as to the memory sticks themselves.” Id. ¶ 39. If the combination of 24 components in a particular PC does not support running at high speeds, “the memory will 25 not run at the advertised speed or it will run unstably (causing software glitches or system 26 1 However, consumers do not necessarily observe that the computer is not running at the 27 high speed promised by Corsair. Compl. ¶¶ 30, 33. For example, Sundeen did not know 1 crashes).” Id. ¶ 42. This is because “memory interacts with other components in complex 2 ways and overclocking is sensitive to this.” Id. 3 McKinney altered his BIOS settings soon after plugging in the Corsair memory 4 stick. Id. ¶ 57. However, it still did not run stably at the advertised speed. Id. When 5 Sundeen discovered that he needed to adjust his BIOS to achieve the advertised speed and 6 attempted to do so, his computer crashed. Id. ¶ 60. 7 3. Plaintiffs’ Claims 8 Plaintiffs allege that they were injured by Corsair’s false statements and material 9 omissions on its packaging and in advertisements. Id. ¶¶ 49-54. They allege that they 10 would not have bought (or would not have paid the same price for) the product had they 11 known that it did not run reliably at the stated speed. Id. ¶¶ 57, 60. Further, Plaintiffs 12 allege that Corsair knows “the truth” that overclocking is unreliable, and “knows that the 13 statements on its packaging and ads are false and misleading to reasonable consumers.” 14 Id. ¶ 55. Plaintiffs also allege that “Corsair intends that consumers will rely on these false 15 and misleading statements when purchasing High-Speed Memory.” Id. 16 Plaintiffs assert claims based on (1) the State Consumer Protection Acts of 44 17 separate states (including California); (2) California’s Unfair Competition Law (“UCL”), 18 Cal. Bus. & Prof. Code § 17200, et seq.; (3) California’s False Advertising Laws (“FAL”), 19 Cal. Bus. & Prof. Code § 17500, et seq.; (4) Consumer Legal Remedies Act (“CLRA”), 20 Cal. Civ. Code § 1750, et seq.; (5) breach of express warranty; and (6) negligent 21 misrepresentation. Id. ¶¶ 76-140. Corsair moves to dismiss and requests judicial notice of 22 six exhibits. See MTD; RJN (dkt. 27-1 through 27-8). 23 II. LEGAL STANDARD 24 Under Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a complaint 25 for failure to state a claim upon which relief may be granted. Dismissal may be based on 26 either “the lack of a cognizable legal theory or the absence of sufficient facts alleged under 27 a cognizable legal theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th 1 true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 2 678 (2009) (cleaned up). A claim is plausible “when the plaintiff pleads factual content 3 that allows the court to draw the reasonable inference that the defendant is liable for the 4 misconduct alleged.” Id. When evaluating a motion to dismiss, the court “must presume 5 all factual allegations of the complaint to be true and draw all reasonable inferences in 6 favor of the nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 7 1987). “Courts must consider the complaint in its entirety, as well as other sources courts 8 ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, 9 documents incorporated into the complaint by reference, and matters of which a court may 10 take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 11 (2007). 12 Claims for fraud must meet the pleading standard of Federal Rule of Civil 13 Procedure 9(b), which requires a party “alleging fraud or mistake [to] state with 14 particularity the circumstances constituting fraud or mistake.” Rule 9(b) “requires . . . an 15 account of the time, place, and specific content of the false representations as well as the 16 identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 17 764 (9th Cir. 2007) (cleaned up). “This means that averments of fraud must be 18 accompanied by the who, what, when, where, and how of the misconduct charged.” In re 19 Google Assistant Priv. Litig., 546 F. Supp. 3d 945, 955 (N.D. Cal. 2021) (internal 20 quotations omitted). 21 If a court dismisses a complaint for failure to state a claim, it should “freely give 22 leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has 23 discretion to deny leave to amend due to “undue delay, bad faith or dilatory motive on the 24 part of the movant, repeated failure to cure deficiencies by amendment previously allowed, 25 undue prejudice to the opposing party by virtue of allowance of the amendment, [and] 26 futility of amendment.” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 27 2008). III. DISCUSSION 1 The Court will first address Corsair’s request for judicial notice. Then, the Court 2 will address Corsair’s arguments in the following order with respect to its motion to 3 dismiss: (1) applicability of Rule 9(b); (2) challenges to the misrepresentation claims; (3) 4 challenges to the omissions claims; (4) challenges to claims for equitable relief; and (5) 5 applicability of the economic loss rule. Finally, the Court will address Corsair’s argument 6 that Plaintiffs lack standing to assert class claims under the laws of other states and to 7 assert class claims as to products other than the 3200 MHz memory card they bought. 8 A. Request for Judicial Notice 9 Corsair requests that the Court take judicial notice of six exhibits containing copies 10 of online webpages. RJN at 2-3; Lynch Decl. (dkt. 27-2) at 2-4, Exs. A-F. Plaintiffs do 11 not oppose. 12 Exhibits A and B are copies of the product page for the “DOMINATOR 13 PLATINUM RGB” with the “TECH SPECS” and “OVERVIEW” tabs selected, 14 respectively. Lynch Decl. ¶¶ 2-3. Exhibit C is a copy of a the “Help Page” on Corsair’s 15 website pertaining to “Memory” help. Id. ¶ 4. Exhibit D is a copy of the “FIND BY 16 COMPATIBILITY” page on Corsair’s website, as well as pages generated by making 17 selections in various fields on that webpage. Id. ¶ 5. Exhibit E is a copy of the “Intel 18 Extreme Memory Profile (Intel XMP)” page on Intel’s website. Id. ¶ 6. Exhibit F is a 19 copy of the “Computer Memory Finder” page on Newegg’s website, as well as pages 20 generated by making selections in various fields on that webpage. Id. ¶ 7. 21 Courts may take judicial notice of facts that are “not subject to reasonable dispute” 22 because they (1) are “generally known within the trial court’s territorial jurisdiction,” or 23 (2) “can be accurately and readily determined from sources whose accuracy cannot 24 reasonably be questioned.” Fed. R. Evid. 201(b). Matters of public record may be 25 judicially noticed, but disputed facts contained in those records may not. Khoja v. 26 Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018). Courts may also consider 27 material under the incorporation-by-reference doctrine. Eidmann v. Walgreens Co., 522 1 F.Supp.3d 634, 641 (N.D. Cal. 2021). A document may be incorporated by reference if 2 “(1) the complaint refers to the document; (2) the document is central to plaintiff’s claim; 3 and (3) no party questions the authenticity of the document.” Id. (quoting U.S. v. 4 Corinthian Colls., 655 F.3d 984, 999 (9th Cir. 2011)). 5 Here, Plaintiffs explicitly cite to the product webpage copied in Exhibits A and B as 6 a source of Corsair’s deceptive advertising. FAC ¶¶ 22-24. Plaintiffs also cite to 7 information on Intel’s website about Intel’s XMP setting and warranty in explaining the 8 risks of overclocking. Id. ¶¶ 38-40. Thus, the complaint necessarily relies on the 9 webpages, they are central to Plaintiffs’ claims, and there is no dispute as to their 10 authenticity. As such, the Court incorporates Exhibits A, B, and E by reference. 11 The three remaining exhibits (Exs. C, D, and F) are publicly accessible webpages 12 on Corsair’s website (Exs. C and D) and Newegg’s website (Ex. F). RJN at 5. Corsair 13 asks that these exhibits should be considered for the fact of their publication, and not their 14 contents. Id. Plaintiffs do not dispute the authenticity of these webpages and do not 15 oppose. Thus, the Court also grants Corsair’s request with respect to these exhibits. 16 B. Motion to Dismiss 17 Corsair moves to dismiss Plaintiffs’ claims on the grounds that Plaintiffs: (1) fail to 18 comply with Rule 9(b), (2) fail to plausibly allege their misrepresentation claims, (3) fail to 19 plausibly allege their omission claims, (4) cannot ask for equitable relief in addition to 20 remedies at law, and (5) cannot recover in tort for purely economic losses. 21 1. Rule 9(b) 22 Under Rule 9(b), claims “sounding in fraud” or alleging “circumstances constituting 23 fraud” must be pleaded with “heightened particularity.” Fed. R. Civ. P. 9(b); Vess v. Ciba- 24 Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir. 2003). The heightened standard 25 requires a plaintiff to set forth the “who, what, when, where and how” of the claim. 26 Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). Pleadings must “be specific enough 27 to give defendants notice of the particular misconduct . . . so that they can defend against 1 If claims under the UCL, FAL, and CLRA specifically allege fraud, or allege facts 2 that constitute fraud—even if the word fraud is not used—the claims are subject to the 3 heightened standard. See id. at 1103, 1106; Kearns v. Ford Motor Co., 567 F.3d 1120, 4 1125 (9th Cir. 2009) (“[W]e have specifically held that Rule 9(b)’s heightened pleading 5 standards apply to claims for violations of the CLRA and UCL.”). The elements of fraud 6 in California are: “(a) misrepresentation (false representation, concealment, or 7 nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e. to induce 8 reliance; (d) justifiable reliance; and (e) resulting damage.” Kearns, 567 F.3d at 1126 9 (citations and emphasis omitted). 10 a. Applicability 11 Corsair argues that all of Plaintiffs’ claims “sound in fraud,” and as such they are 12 subject to Rule 9(b)’s heightened pleading standards for fraud claims. MTD at 5-6. 13 The Court agrees that most of Plaintiffs’ claims sound in fraud and are subject to 14 Rule 9(b). Plaintiffs allege that Corsair’s packaging and ads fail to disclose that the 15 advertised speed is not the default speed, and that to achieve the advertised speed requires 16 altering computer firmware. FAC ¶¶ 50-52. Plaintiffs further allege that Corsair knows 17 “what its packaging and ads say (and omit),” and that Corsair intends for consumers to rely 18 on its packaging and advertisements. Id. ¶ 55. Plaintiffs also allege that consumers 19 reasonably rely on the advertised speeds, and that their reliance causes them economic 20 harm. Id. ¶¶ 25-28, 56-61. These allegations state all of the elements of common law 21 fraud, and Plaintiffs expressly incorporate these allegations into to every claim. MTD at 3; 22 FAC ¶¶ 76, 85, 98, 107, 124, 132. Plaintiffs emphasize that they assert non-fraud claims 23 in the alternative. Opp. at 8; see FAC ¶¶ 102, 117, 136. Each claim contains alternative 24 language that Corsair “‘should have known through the exercise of reasonable care’ that its 25 statements were deceptive,” and thus they do not “rely entirely” on fraudulent conduct for 26 their claims. Id. 27 Notwithstanding the alternative language, the Court concludes that, if allegations of 1 claims. MTD at 5. Plaintiffs allege that Corsair knew that it was a “lottery” as to whether 2 their products would ever achieve the advertised speed, relying on a blog post written by a 3 Corsair employee. FAC ¶¶ 32, 52. Plaintiffs further allege that Corsair’s own marketing 4 reflects that speed is a “primary factor” for consumers in determining price and purchase 5 decisions. Id. ¶ 53. To take away these allegations would leave little basis for the focus of 6 the claim: that Corsair charges a price premium for high-speed memory even though it 7 knows the memory cannot achieve that speed. See id. ¶ 54. 8 Still, Plaintiffs adequately plead in the alternative with respect to their negligent 9 representation claim. Stripping the averments of fraud leaves allegations that Corsair 10 should have known what reasonable consumers expect based on listed speeds on memory 11 products. These allegations satisfy Rule 8. Similarly, Plaintiffs’ breach of express 12 warranty claims are subject only to Rule 8, and they are also plausibly pleaded.2 13 Thus, the Court holds that Plaintiffs’ FAL, UCL, and CLRA claims must meet 14 heightened Rule 9(b) standards, but that the negligent misrepresentation claims and breach 15 of express warranty claims need only conform to Rule 8. 16 b. Sufficiency under Rule 9(b) 17 “To properly plead fraud with particularity under Rule 9(b), ‘a pleading must 18 identify the who, what, when, where, and how of the misconduct charged, as well as what 19 is false or misleading about the purportedly fraudulent statement, and why it is false.’” 20 Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 964 (9th Cir. 2018). 21 Corsair contends that Plaintiffs fail to meet this heightened standard as to their 22
23 2 Corsair challenges the breach of warranty claim on one other basis, arguing that Plaintiffs’ common law claims must be dismissed for failing to specify “which laws 24 apply,” citing In re Static Random Access Memory (SRAM) Antitrust Litigation, 580 F. Supp. 2d 896, 910 (N.D. Cal. 2008). MTD at 16, n.15. In that case, the court dismissed 25 unjust enrichment class claims in part because the defendant showed that the unjust enrichment law “varies widely from State to State.” In re SRAM Antitrust Litigation, 580 26 F. Supp. 2d at 910. As such, the court concluded that defendants could not have adequate notice of the claims without further specification of which states’ laws the plaintiffs’ relied 27 upon. Id. Corsair has made no such showing that the law for negligent misrepresentation 1 allegations regarding online advertising (as opposed to the statements on the packaging). 2 Id. Specifically, Corsair argues that Plaintiffs do not identify which online ads they 3 viewed, when they saw those ads, what products the ads featured, whether the ads 4 referenced overclocking, or whether the ads were on Corsair’s website or third-party sites. 5 MTD at 6. Plaintiffs allege that the statement they relied on was the “3200 MHz” speed 6 designation on the packaging and “in Corsair’s online ads.” Opp. at 5-6; FAC ¶¶ 56, 59. 7 Plaintiffs plead with particularity as to the statements on the packaging, but not as 8 to the online advertisements. As to the advertising, Plaintiffs fail to allege where exactly 9 they viewed Corsair’s purportedly deceptive advertisements, stating generally that they 10 relied on “Corsair’s online ads.” FAC ¶¶ 56, 59; Opp. at 5-6. And to the extent that 11 Plaintiffs saw and relied on third-party advertisements, they cannot state a claim against 12 Corsair because they fail to attribute those statements to Corsair. See Beyer v. Symantec 13 Corp., 333 F. Supp. 3d 966, 975 (N.D. Cal. 2018) (dismissing the claim because the 14 plaintiff did not allege that statements viewed on Best Buy’s website were attributable to 15 Symantec). Thus, absent an allegation that Plaintiffs specifically viewed ads on Corsair’s 16 website or that the ads Plaintiffs viewed on third-party websites are attributable to Corsair,3 17 Plaintiffs’ allegations about advertising are not sufficient to meet Rule 9(b). 18 As to the statements on the packaging, Plaintiffs allege their claims with 19 particularity. Plaintiffs sufficiently allege that they relied on the speed designation (what) 20 made by Corsair (who) contained on its packaging (where) in or around December 2018 21 and July 2019 (when). FAC ¶¶ 56-61. Corsair’s products failed to achieve the advertised 22 speeds. Id. ¶ 60. Plaintiffs allege that the speeds listed on the packaging are false or 23 misleading because reasonable consumers would believe that the listed speeds are 24 achievable out of the box and that the speeds may be achieved reliably across platforms. 25 3 In their Opposition, Plaintiffs attempt to retroactively attribute third-party advertisements 26 to Corsair by stating that the statements were made on third-party sites “with Corsair’s permission.” Opp. at 5. This allegation appears nowhere in the FAC. Though Plaintiffs 27 do allege that the purportedly false statements appear on a product listing found in the 1 Id. ¶ 25. Plaintiffs further allege that Corsair memory sticks do not achieve the advertised 2 speeds out of the box. Id. ¶ 29. Thus, Plaintiffs sufficiently allege what is false about the 3 statement and why it is false. 4 *** 5 In sum, the Court holds that Plaintiffs must meet Rule 9(b) particularity with respect 6 to their FAL, UCL, and CLRA claims, and they fail to do so for their allegations about 7 Corsair’s advertisements. As such, the Court GRANTS the motion to dismiss with respect 8 to all claims based on allegations about advertisements. 9 2. Misrepresentation 10 Corsair argues that Plaintiffs fail to plausibly allege that reasonable consumers 11 would be deceived by the statements on Corsair’s packaging. See MTD at 2-3, 6-9, 10- 12 12.4 The Court disagrees. 13 In analyzing deceptive labeling claims under the UCL, FAL, and CLRA, courts 14 consider whether a “reasonable consumer” would likely be deceived. Williams v. Gerber 15 Prods. Co., 552 F.3d 934, 938 (citing Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 16 1995)). “[T]he reasonable consumer standard requires a probability ‘that a significant 17 portion of the general consuming public or targeted consumers, acting reasonably in the 18 circumstances, could be misled.’” Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1017 19 (9th Cir. 2020) (quoting Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016)). The 20 California Supreme Court has recognized “that these laws prohibit not only advertising 21 which is false, but also advertising which[,] although true, is either actually misleading or 22 which has a capacity, likelihood or tendency to deceive or confuse the public.” Williams, 23 552 F.3d at 938 (quoting Kasky v. Nike, Inc., 27 Cal. 4th 939, 450 (2002)) (internal 24
25 4 Corsair includes separate arguments as to the “out-of-the-box” and “substantial risk” theories. 26 However, in their Opposition, Plaintiffs do not really distinguish between these two theories. See generally Opp. At least as currently alleged, the Court does not see a relevant distinction between 27 (1) the theory that Corsair misrepresented the speed that the memory can achieve out of the box; and (2) the theory that Corsair misrepresented whether there is a substantial risk that the memory 1 quotations omitted). 2 Generally, the question of whether a business practice is deceptive presents a 3 question of fact not suitable for resolution on a motion to dismiss. See id. However, the 4 court may in certain circumstances consider the viability of the alleged consumer law 5 claims based on its review of the product packaging. See Werbel v. Pepsico, Inc., 2010 6 WL 2673860, at *3 (N.D. Cal. July 2, 2010). “Thus, where a court can conclude as a 7 matter of law that members of the public are not likely to be deceived by the product 8 packaging, dismissal is appropriate.” Id. (citing Sugawara v. Pepsico, Inc., 2009 WL 9 1439115, at *3-4 (E.D. Cal. May 21, 2009)) (finding that the packaging for Cap’n Crunch 10 cereal and its use [of] the term “Crunch Berries” was not misleading); Videtto v. Kellogg 11 USA, 2009 WL 1439086, at *2 (E.D. Cal. May 21, 2009) (dismissing UCL, FAL and 12 CLRA claims based on allegations that consumers were misled into believing that “Froot 13 Loops” cereal contained “real, nutritious fruit”); McKinnis v. Kellogg USA, 2007 WL 14 4766060, at *3-4 (C.D. Cal. May 21, 2007) (same). 15 First, Corsair argues that reasonable consumers would not be misled by the 3200 16 MHz speed because the “reasonable consumer” test should ask what is reasonable to a 17 “targeted group” of consumers, rather than to the general public. Opp. at 7. Corsair cites 18 to Lavie v. Proctor & Gamble Co., 105 Cal. App. 4th 496, 512 (2003) for the proposition 19 that the reasonable consumer test can be adapted to a targeted group. MTD at 6-7. Corsair 20 argues that consumers of their high-end memory products are more sophisticated than 21 ordinary memory consumers and would not construe listed speeds as literal out-of-the-box 22 speeds. See id.; FAC ¶ 27. 23 But the question of whether Corsair’s “target audience . . . understood the 24 interactive nature of components and the importance of proper setup and compatibility” is 25 a factual one. MTD at 8-9. Lavie held that “[where a party] contends that a more 26 vulnerable [or more sophisticated] subgroup is the true target of . . . an advertisement, a 27 question of fact is presented.” 105 Cal. App. 4th at 494; see also Asis Internet Servs. v. 1 The inquiry into whether a targeted reasonable consumer standard should apply is not yet 2 appropriate for decision. At this time, the Court must evaluate Plaintiffs’ allegations from 3 the perspective of a reasonable consumer. 4 Next, Corsair argues that Plaintiffs’ references to online comments do not show that 5 “significant numbers o[f] consumers, behaving reasonably, are likely to be deceived.” 6 MTD at 9. But the online comments are not the only bases upon which Plaintiffs allege 7 deception. Plaintiffs allege that a reasonable consumer would assume the listed speed is 8 the default, out-of-the-box speed because (1) it is the plain meaning of the listed speed; (2) 9 a preassembled computer that arrives running at the “stated speed” of the installed 10 memory; and (3) aftermarket standard-speed memory runs at the stated speed out of the 11 box. FAC ¶¶ 25-27. These allegations are all plausible. 12 Corsair also argues that other statements on its packaging put reasonable consumers 13 on notice about the need for overclocking and that the memory might not run consistently 14 across all systems. Corsair points out that the product’s packaging states “Intel® XMP 15 Certified,” a designation that Plaintiffs admit “requires altering the BIOS.” MTD at 8 16 (citing FAC ¶¶ 17, 21, 38). But a representation that signifies a product is “certified” to 17 operate with a certain configuration of settings does not necessarily defeat a reasonable 18 consumer’s belief that the product will operate at the stated speed out of the box. If a 19 typical consumer is unaware of the need to overclock at all, she is also likely unaware of 20 the meaning of “Intel® XMP Certified” as noted on packaging. Opp. at 11; see Anderson 21 v. Apple, 500 F. Supp. 3d 993, 1012 (N.D. Cal. 2020) (holding that Apple failed to support 22 its contention that reasonable consumers would understand that the language “Gigabit- 23 class LTE” versus “LTE Advanced” necessarily denoted a difference in cellular antenna 24 used and resulting cellular capabilities). 25 Finally, Corsair points to other statements as to specifications on its website and 26 advertisements that it contends put consumers on notice that functionality is not guaranteed 27 across systems or out of the box. MTD at 8. Plaintiffs argue in response that if statements 1 other than” the packaging. See Elgindy v. AGA Serv. Co., 2021 WL 1176535 (N.D. Cal. 2 Mar. 29, 2021) (citing Williams, 552 F.3d at 940 (stating that reasonable consumers should 3 not “be expected to look beyond misleading representations on the front of the box to 4 discover the truth . . . in small print on the side”)). Additional information elsewhere 5 disclosing (1) the actual default speed, (2) requirements to overclock, and (3) system 6 compatibility requirements do not cure the alleged misrepresentation of the stated speed on 7 the packaging. 8 Corsair interprets Plaintiffs’ “substantial risk” theory as a claim that the memory 9 products have a defect because they fail or cause instability. MTD at 3, 11. But Plaintiffs 10 insist that this misunderstands their theory: they seek relief based only on the basis of 11 misrepresentations, not a defect. Opp. at 13. That is, Plaintiffs’ substantial risk theory 12 seems to be that, even for consumers who do take the additional step of overclocking, there 13 is a “substantial risk” that the memory still does not run correctly and at the advertised 14 speed. While it remains somewhat unclear how this theory of liability is distinct from the 15 out-of-the-box theory, the Court concludes that it too is plausibly pleaded. 16 Accordingly, the Court DENIES Corsair’s motion to dismiss with respect to the 17 misrepresentation claims related to statements on the packaging. 18 3. Omission 19 Corsair also argues that the omissions claims fail because Plaintiffs have not alleged 20 that Corsair had a duty to disclose any qualifying information. See MTD at 9-10, 12-13. 21 The Court agrees that the claims fail for this reason. 22 To plausibly allege a fraudulent omission, the omission must either (1) “be contrary 23 to a representation actually made by the defendant,” or (2) “an omission of a fact the 24 defendant was obliged to disclose.” Anderson, 500 F. Supp. 3d at 1012 (quoting Hodsdon 25 v. Mars, Inc., 891 F.3d 857, 861 (9th Cir. 2018)). The phrase “contrary to a representation 26 actually made by the defendant” is also known as a “partial omission.” See Anderson, 500 27 F. Supp. 3d at 1013. Thus, a duty to disclose may be “triggered” by affirmative 1 238 Cal. App. 4th 1164, 1176 (2015)). The other type of omission implies a freestanding 2 obligation to disclose, regardless of whether the defendant makes any misleading 3 representation (a so-called “pure omissions” claim). See Anderson, 500 F. Supp. 3d at 4 1012. Plaintiffs allege one of each variety: (1) a partial omissions claim on the basis of 5 Corsair’s partial representations about the memory speed; and (2) a pure omissions claim 6 on the basis of Corsair’s exclusive knowledge of the facts that overclocking was necessary 7 for its product to operate correctly. FAC ¶¶ 82, 89, 101, 113, 138. 8 The law concerning a defendant’s duty to disclose in a fraudulent omissions case is 9 “marked by general disarray.” In re Toyota RAV4 Hybrid Fuel Tank Litig., 534 F. Supp. 10 3d 1067, 1101 (N.D. Cal. 2021). Under one approach, a defendant has a duty to disclose 11 when either (1) the defect at issue relates to an unreasonable safety hazard or (2) the defect 12 is material, “central to the product’s function,” and the plaintiff alleges one of the four 13 LiMandri factors. Id. at 1102. The LiMandri factors are as follows: (1) the defendant is in 14 a fiduciary relationship with the plaintiff; (2) the defendant had exclusive knowledge of 15 material facts not known to the plaintiff; (3) the defendant actively conceals a material fact 16 from the plaintiff; or (4) the defendant makes partial representations but also suppresses 17 some material facts. LiMandri v. Judkins, 52 Cal. App. 4th 326, 336 (1997). Under a 18 separate approach, a defendant has a duty to disclose when the plaintiff alleges either: (1) 19 the defect relates to an unreasonable safety hazard; (2) the defect is material and related to 20 the product’s central function; or (3) the presence of one of the four LiMandri factors. In 21 re Toyota, 534 F. Supp. 3d at 1102. 22 This Court recently decided on the first approach outlined (i.e., that in addition to 23 the LiMandri factors, a plaintiff must allege materiality and that the defect was central to 24 the product’s function). See Hammerling v. Google LLC, 2022 WL 2812188 (N.D. Cal. 25 July 18, 2022). First, it appears that the Ninth Circuit adopted the first approach in 26 Hodsdon v. Mars, Inc., 891 F.3d 857 (9th Cir. 2018). Id. at 863 (stating that the defendant 27 did not have a duty to disclose because the plaintiffs failed to plead “a crucial 1 Second, post-Hodsdon, the Ninth Circuit and a majority of district courts have applied the 2 first approach. See, e.g., Sud v. Costco Wholesale Corp., 731 F. App'x 719, 720 (9th Cir. 3 2018); In re Apple Inc. Device Performance Litig., 386 F. Supp. 3d 1155, 1176 (N.D. Cal. 4 2019); Beyer v. Symantec Corp., 333 F. Supp. 3d 966, 979–80 (N.D. Cal. 2018); 5 Anderson, 500 F. Supp. 3d at 1014; Ahern v. Apple, 411 F. Supp. 3d 541, 567 (N.D. Cal. 6 2019). 7 Applying this approach, both omissions claims fail because Plaintiffs do not allege 8 a defect that is central to the product’s function. Surprisingly, Plaintiffs’ concede that they 9 do not plead any defect at all.5 Opp. at 13. The Court therefore GRANTS the motion to 10 dismiss the omission claims. 11 4. Equitable Claims 12 Corsair next argues that Plaintiffs’ claims for equitable relief under the CLRA, 13 UCL, and FAL should be dismissed because Sonner v. Premier Nutrition Corp., 971 F.3d 14 834, 844 (9th Cir. 2020) precludes courts from entertaining equitable claims when an 15 adequate legal remedy exists. MTD at 13-14. Plaintiffs argue that they have pleaded in 16 the alternative and that Sonner does not apply at the pleading stage. Opp. at 14-15. 17 In Sonner, the Ninth Circuit held that the plaintiff’s request for restitution under the 18 UCL and the CLRA should be dismissed because “the operative complaint [did] not allege 19 that [the plaintiff] lack[ed] an adequate legal remedy.” 971 F.3d at 844. The court further 20 explained that because the plaintiff “fail[ed] to explain how the same amount of money for 21 the exact same harm [was] inadequate or incomplete . . . [it] fail[ed] to establish that [it] 22 lack[ed] an adequate remedy at law,” making the dismissal of “[plaintiff’s] claims for 23 equitable restitution under the UCL and CLRA” appropriate. Id. Therefore, “[u]nder 24 Sonner, plaintiffs are required, at a minimum, to plead that they lack an adequate remedy 25 at law” before being awarded restitution under the UCL and CLRA. See Anderson v. 26
27 5 The Court notes that Plaintiffs might be able to properly allege a duty to disclose, if they 1 Apple Inc., 500 F. Supp. 3d 993, 1009 (N.D. Cal. 2020). 2 Although Plaintiffs can pursue equitable claims in the alternative to legal remedies, 3 they are still required to explain how, or plead that, the legal remedies are inadequate.6 4 See Sonner, 971 F.3d at 844; Anderson, 500 F. Supp. 3d at 1009. Because Plaintiffs have 5 not pleaded that damages are inadequate, the Court GRANTS Corsair’s motion to dismiss 6 the request for equitable relief. 7 5. Economic Loss Rule 8 Corsair further argues that Plaintiffs’ negligent misrepresentation claims should be 9 dismissed because they are premised on Plaintiffs’ disappointed economic expectations 10 arising from sales transactions. MTD at 14. Plaintiffs respond that the economic loss rule 11 does not apply when “an independent duty arising from tort law is violated,” and that 12 “when a [d]efendant induces a plaintiff to enter into a contract by misrepresenting a 13 product, that ‘is a tort independent of the breach.’” Opp. at 15 (quoting Robinson 14 Helicopter Co., Inc. v. Dana Corp., 34 Cal. 4th 979, 990 (2004)). Corsair argues that the 15 Robinson Helicopter exception applies only where the fraud results in physical injury. See 16 Reply at 11 (dkt. 33). 17 Indeed, there does appear to be a split among district courts in the Ninth Circuit 18 about Robinson Helicopter’s application to claims where there is no physical injury. See 19 Broomfield v. Craft Brew All., Inc., No. 17-cv-01027, 2017 WL 3838453 at *9 (N.D. Cal. 20 Sept. 1, 2017) (discussing the split). As noted by Judge Hamilton, “[p]art of the confusion 21 stems from an unpublished Ninth Circuit opinion holding, without any discussion of the 22 case, that Robinson Helicopter permits economic losses for a negligent representation 23 claim.” Najarian Holdings LLC v. Corevest Am. Fin. Lender LLC, 2020 WL 3869195 24 (N.D. Cal. July 9, 2020) (citing Kalitta Air, LLC v. Cent. Texas Airborne Sys., Inc., 315 25 Fed. App’x 603, 607 (9th Cir. 2008)). In Kalitta Air, the Ninth Circuit held that 26 6 Sonner concerned claims for restitution, and did not examine whether the same principles 27 apply to injunctive relief. Courts examining Sonner have since held that Sonner applies to 1 “California law classifies negligent misrepresentation as a species of fraud . . . for which 2 economic loss is recoverable.” 315 Fed. App’x at 603 (citation omitted). Courts are more 3 likely to apply the more expansive Kalitta Air exception to the economic loss rule when 4 negligent misrepresentation claims “sound[] more in deceit/fraud than negligence.” E.g., 5 Bret Harte Union High Sch. Dist. v. Fieldturf, USA, Inc., 2016 WL 3519294 at *4-5 (E.D. 6 Cal. June 27, 2016) (citations omitted). 7 This Court has elsewhere endorsed the narrower interpretation of Robinson 8 Helicopter that would preclude Plaintiffs here from recovering tort damages for negligent 9 misrepresentation. In Kum v. Mercedez-Benz USA, LLC, 2021 WL 2682336 at n.4 (N.D. 10 Cal. June 30, 2021), this Court recognized that Robinson Helicopter’s “holding was 11 ‘narrow in scope, and limited to a defendant’s affirmative misrepresentations on which a 12 plaintiff relies and which expose a plaintiff to liability for personal damages independent 13 of the plaintiff’s economic loss.’” Id. (quoting Robinson Helicopter, 34 Cal. 4th at 993) 14 (emphasis added). Under this reasoning, Plaintiffs are barred from recovery because they 15 do not allege personal injury or exposure to liability. Especially given the Court’s earlier 16 conclusion that Plaintiffs’ negligent misrepresentation claims do not sound in fraud (and 17 are subject only to Rule 8), the Court holds that the exception to the economic loss rule 18 does not apply here. 19 The Court therefore GRANTS Corsair’s motion to dismiss the negligent 20 misrepresentation claims.7 21 C. Motion to Strike for Lack of Standing 22 Finally, Corsair argues that Plaintiffs’ class allegations should be partially stricken 23 because Plaintiffs lack standing to bring claims on behalf of a class. First, Corsair argues 24 25 7 Sundeen’s negligent misrepresentation claim also fails for an additional reason: it is barred by the statute of limitations. Corsair cites to Ferguson v. JPMorgan Chase Bank, N.A., 2014 WL 26 2118527 at *6-7 (E.D. Cal. May 21, 2014), which held that negligent misrepresentation claims “based in fraud” are subject to a three-year statute of limitations period, while those based on 27 failure to meet a standard of reasonable care are subject to a two-year limitations period. Given 1 that Mazza v. American Honda Motor Co., Inc., 666 F.3d 581, 587, 589-90 (9th Cir. 2012) 2 held that, because California’s consumer laws differ from those in other states, plaintiffs 3 cannot bring claims arising under the laws of states where the representative neither 4 resides nor suffered injury. Id. Second, Corsair argues that Plaintiffs lack standing to 5 assert claims involving products different from the 3200 MHz memory card they 6 themselves purchased. Id. at 16. 7 1. Other States’ Consumer Laws 8 First, Corsair argues that Plaintiffs cannot represent a class of out-of-state 9 consumers bringing claims under other states’ laws because those other laws do not apply 10 to Plaintiffs. See MTD at 15 (citing Mazza, 666 F.3d at 590-91). Plaintiffs counter with 11 two arguments: (a) this standing inquiry should be deferred until class certification, and (b) 12 even if deciding standing at this stage, Mazza does not excuse Corsair from making its 13 own showing that California law differs materially from other states’ consumer laws on the 14 facts of this case. Opp. at 16-18. While the Court may analyze the standing issue at the 15 pleading stage, it agrees with Plaintiffs that Corsair has not made a sufficient showing that 16 California law is materially different from other states’ laws on the facts of this case. 17 a. Timing of Standing Analysis 18 Plaintiffs first argue that standing to bring claims on behalf of a nationwide putative 19 class is properly addressed at the class certification stage. Opp. at 16-17 (citing Melendres 20 v. Arpaio, 784 F.3d 1254, 1261 (9th Cir. 2015)). Corsair responds that many courts in this 21 district have not adopted Plaintiffs’ construction of Melendres. Reply at 12. 22 Judge Chen analyzed the issue of when to address standing in In re Chrysler- 23 Dodge-Jeep Ecodiesel Marketing, Sales Practices, and Products Liability Litigation, 295 F. 24 Supp. 3d 927, 956 (N.D. Cal. 2018). Judge Chen, like others in the District, concluded that 25 Melendres does not impose a “per se rule” requiring courts to defer standing analysis until 26 class certification. See id.; Jones v. Micron Tech. Inc., 400 F. Supp. 3d. 897, 909-10; Phan 27 v. Sargento Foods, Inc., 2021 WL 2224260 at *12-14 (N.D. Cal. June 2, 2021). He then 1 consider standing at the motion-to-dismiss or class certification stage. In re Chrysler- 2 Dodge-Jeep, 295 F. Supp. 3d at 954 (citing In re Carrier IQ, Inc., 78 F. Supp. 3d 1051, 3 1074 (N.D. Cal. 2015)). Principal among these concerns is the ratio of the “number of 4 consumers from . . . other states” in comparison to the number of named plaintiffs able to 5 bring claims under the laws of those states. Id. When the ratio is disproportionately 6 unbalanced, courts risk “subjecting [defendants] to the expense and burden of nationwide 7 discovery.” Id. Other post-Melendres opinions have also used this case management 8 metric to decide when to analyze standing. See Hindsman v. General Motors LLC, 2018 9 WL 2463113 at *15-16 (N.D. Cal. June 1, 2018); Corcoran v. CVS Health Corp., Inc., 10 2016 WL 4080124 at *2 (N.D. Cal. July 29, 2016) (collecting cases); Kutza v. Williams- 11 Sonoma, Inc., 2018 WL 5886611 at *2-3 (N.D. Cal. Sept. 9, 2018). 12 The Court agrees that it retains discretion to address questions of standing at either 13 juncture. See Jones, 400 F. Supp. 3d at 910; In re Carrier IQ, Inc., 78 F. Supp. 3d at 1074. 14 Given that Plaintiffs here seek to represent class members with claims under the state laws 15 of 43 other states, while none of the named Plaintiffs have contacts with any of those 16 states, the Court will consider standing arguments at this stage. 17 b. Standing Analysis Under Mazza 18 Corsair argues that Plaintiffs lack standing over the out-of-state claims because 19 Mazza held that, as a matter of law, “an actual conflict exists between California’s 20 consumer protection laws (including the UCL, FAL, and CLRA) and at least 43 other 21 states’ consumer protection laws.” Reply at 13 (quoting McFall v. Perrigo Co., 2021 WL 22 2327936 at *17 (N.D. Cal. Apr. 15, 2021)). 23 In Mazza, the Ninth Circuit reversed the district court’s decision to certify a 24 nationwide class of Acura car owners represented by Plaintiffs who brought claims under 25 the UCL, CLRA, and FAL. 666 F.3d at 585, 587. Honda argued that the district court 26 “erred by misapplying California’s choice of law rules and certifying a nationwide class 27 under California’s consumer protection . . . laws” because the California laws differed 1 591. “To determine whether the interests of other states outweigh California’s interest,” 2 Mazza applied the “three-step governmental interest test” articulated by the California 3 Supreme Court in Washington Mutual Bank, FA v. Superior Court, 24 Cal. 4th 906, 921 4 (2001). Id. at 590. The first step involves determining “whether the relevant law of each 5 of the potentially affected jurisdictions with regard to the particular issue in question is the 6 same or different.” Id. Examining Honda’s detailed analysis of the other 43 states’ laws, 7 the court concluded that the differences between those laws and California’s consumer 8 laws were “not trivial or wholly immaterial.” Id. at 591. Under the governmental interest 9 test, out-of-state class claims had to be governed by the consumer protection laws of the 10 jurisdiction where the transaction took place. Id. at 594. 11 The Court agrees with Plaintiffs that Mazza does not obviate the need for a choice- 12 of-law analysis specific to each case. Opp. at 18 (citing to Bruno v. Eckhart Corp., 280 13 F.R.D. 540, 547 (C.D. Cal. 2012)). In Bruno, as here, the Court was examining California 14 consumer protection claims brought under the UCL, FAL, and CLRA. 280 F.R.D. at 543. 15 Bruno reasoned that Mazza cannot “change the California Supreme Court’s express 16 holding that California’s choice-of-law analysis requires analyzing various states’ laws 17 ‘under the circumstances of the particular case’ and given ‘the particular [legal] issue in 18 question.’” 280 F.R.D. at 547 (citing Kearney v. Salmon Smith Barney, 39 Cal. 4th 95, 19 107-08, 45 (2006) (emphasis added)). Bruno also noted that Mazza itself made clear that 20 “its holding was reached ‘[u]nder the facts and circumstances of this case.’” Id. (citing 21 various points in Mazza where the court expressly couched its reasoning as pertaining to 22 “this case”). Courts in this District have agreed. See In re iPhone 4S Consumer Litig., 23 2013 WL 3829653 at *9 (N.D. Cal. July 23, 2013); Arroyo v. TP-Link USA Corp., 2015 24 WL 5698752 at *3 (N.D. Cal. Sept. 29, 2015) (holding that “the ruling in Mazza does not 25 erase the [d]efendants’ burden to prove that foreign jurisdiction should apply under the 26 ‘governmental interest test’”). 27 Unlike in Mazza, Corsair has not provided a sufficient description of other state 1 other states’ laws. Corsair has presented essentially one page of argument in its motion, 2 but it does not provide detail. MTD at 15-16. Corsair may argue this point at a later date.8 3 2. Products Not Bought 4 Finally, Corsair contends that Plaintiffs lack standing to bring class-wide suit on the 5 basis of memory products other than the 3200 MHz cards they purchased. MTD at 16-17. 6 Corsair insists that Plaintiffs do not have standing to “assert injury based on a defective 7 product or false advertising” if the Plaintiffs did not “experience[] injury stemming from 8 the purchase of that product.” MTD at 16 (citing Granfield v. NVIDIA Corp., 2012 WL 9 2847575 at *6 (N.D. Cal. July 11, 2012)); see also Carrea v. Dreyer’s Grand Ice Cream, 10 Inc., 2011 WL 159380 at *3 (N.D. Cal. Jan. 10, 2011) (dismissing claims when plaintiff 11 did not allege that he purchased other Dreyer’s products or “otherwise suffered any injury 12 or lost money or property with respect to those products”). 13 However, a named plaintiff’s injury from a product may also be “substantially 14 similar” to the injuries suffered by the class members. See Garnica v. HomeTeam Pest 15 Defense, Inc., 2015 WL 13066140 at *1-2 (N.D. Cal. Dec. 21, 2015); see also Garrison v. 16 Whole Foods Mkt. Grp., Inc., 2014 WL 2451290 at *4 (N.D. Cal. June 2, 2014). For 17 example, Garrison held that, because the packaging for different products contained the 18 same challenged label of “All Natural,” and because plaintiffs alleged that each label is 19 “false in the same way,” the “unpurchased products . . . do ‘not implicate a significantly 20 different set of concerns than’ those purchased by the named plaintiffs.” Garrison, 2014 21 WL 2451290 at *4. As such, “[b]y establishing that any of the labels were misleading, the 22 [p]laintiffs would necessarily establish that they all were.” Id.; see also Ivie v. Kraft Foods 23 Glob., Inc. 961 F. Supp. 2d 1033, 1046-47 (N.D. Cal. 2013) (holding that plaintiffs had 24 standing as to unpurchased products if claims for those products were “nearly identical to 25 the claims for the purchased product”). 26 8 Plaintiffs assert that they also bring claims on behalf of out-of-state class members under 27 California’s UCL, FAL, and CLRA directly. Opp. at n.17. They are incorrect. In their 1 Although Plaintiffs vaguely allege that the misrepresentations on different memory 2 || products are similar, they do not do so with enough specificity. They allege that “Corsair’s 3 || packaging lists the speed (in MHz) on the front.” FAC § 17. Plaintiffs also allege 4 || generally that “Corsair’s packaging and ads promise specific high speeds and reliability, 5 || and omit any warning about the risks and realities of overclocking.” Id. 448. And 6 || Plaintiffs allege that with respect to the class, each putative member “[was] presented with 7 || substantially similar misrepresentations and omissions by Corsair.” Id. 63. Yet these 8 || allegations are conclusory. At a minimum, Plaintiffs must allege which other models ran 9 || at lower speeds. Without doing so, it is implausible that plaintiffs could, “[b]y establishing 10 || that any of the labels were misleading, . . . necessarily establish that they all were.” 11 || Garrison, 2014 WL 2451290 at *5. Accordingly, the Court strikes the class claims to the 12 || extent they refer to products that the Plaintiffs did not buy. 13 || IV. CONCLUSION C 14 For the foregoing reasons, the Court GRANTS Corsair’s motion to dismiss as to the 3 |} claims based on online advertising, the omission claims, the request for equitable relief, the 16 || negligent misrepresentation claims, and the class claims as to products not bought by 17 || plaintiffs. The Court DENIES the motion as to the breach of warranty claims, the 18 |} misrepresentation claims based on statements on the packaging, and class claims brought 19 || under the laws of other states. 20 The Court grants leave to amend all but the negligent misrepresentation claims. 21 || Plaintiffs may file an amended complaint within 21 days of the date of this order. 22 IT IS SO ORDERED. 23 Dated: July 19, 2022 za AK CHARLES R. BREYER 24 United States District Judge 25 26 27 28