Johnson Reply To MGM Motion To Dismiss

Case 2:17-cv-00541-RSM Document 27 Filed 05/15/17 Page 1 of 33
1 THE HONORABLE RICARDO S. MARTINEZ

2
6 IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE WESTERN DISTRICT OF WASHINGTON
7 AT SEATTLE
8 MARY J. JOHNSON, individually and on
behalf of all others similarly situated, CASE NO. 2:17-cv-00541-RSM
9
Plaintiff,
10
vs. PLAINTIFFS RESPONSE IN
11 OPPOSITION TO DEFENDANTS
MGM HOLDINGS, INC.; METRO- MOTION TO DISMISS THE
12 GOLDWYN-MAYER STUDIOS INC.; COMPLAINT PURSUANT TO FRCP
TWENTIETH CENTURY FOX HOME 12(B)6), OR IN THE ALTERNATIVE TO
13 ENTERTAINMENT, LLC; and TWENTY STRIKE THE CLASS ALLEGATIONS
FIRST CENTURY FOX, INC., DOES 1 10, PURSUANT TO 12(F) AND 23(D)(1)(D)
14 inclusive,
15 Defendants.
16
17
18
19
20
21
22
23
24
25
26
PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

MOTION TO DISMISS THE COMPLAINT OR IN THE
ALTERNATIVE STRIKE THE CLASS ALLEGATIONS
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1 TABLE OF CONTENTS
2 Page
3
I. INTRODUCTION...1
4
II. FACTUAL BACKGROUND..3
5
III. STANDARD OF REVIEW FOR MOTION TO DISMISS.4
6
7 IV. ARGUMENT....4
8 A. Defendants Violated The Washington Consumer Protection Act...4
9 1. The Packaging Viewed As a Whole is Deceiving...5

10
2. The Information Inside The Box Does Not Defeat
11 Plaintiffs CPA Claim...9
12 3. The Statements All And Every Are Actionable Statements........11
13
B. Plaintiff Has Stated A Claim For Breach Of Express Warranty....12
14
15 C. Plaintiff Has Also Stated a Claim For Breach Of The Implied

Warranty Of Merchantability13
16
D. It Is Premature To Determine Whether MGM Holdings And
17 Twenty-First Century Fox Should Be Dismissed.15
18
V. STANDARD OF REVIEW FOR MOTION TO STRIKE.16
19
A. Defendants Washington Choice Of Law Arguments Are Improper
20 And Premature.19
21 B. The Class is Not Overbroad........22
22
C. If The Court Is Inclined To Grant Defendants Motion In Any Respect,
23 Plaintiff Respectfully Requests Leave to Amend Her Complaint...23
24 VI. CONCLUSION...24
25
26

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1 TABLE OF AUTHORITIES
2 FEDERAL CASES
3
4 Ackerman v. The Coca-Cola Co.,

2010 WL 2925955 (E.D.N.Y. Jul. 21, 2010) ............................................................................... 9
5
Aschcroft v. Iqbal,
6 556 U.S. 662 (2009) ..................................................................................................................... 4
7
Astiana v. Dreyers Grand Ice Cream, Inc., 2012 WL 2990766 (N.D. Cal. July 20, 2012) .......... 9
8
Bell Atl. Corp. v. Twombly,
9 550 U.S. 544 (2007) ..................................................................................................................... 4
10
Bereblat v. Apple, Inc.,
11 2010 WL 1460297 (N.D. Cal. Apr. 9, 2010) ............................................................................. 10
12 Bias v. Wells Fargo Bank, N.A.,

942 F. Supp. 2d 915 (N.D. Cal. 2015) ....................................................................................... 19
13
Bobo v. Optimum Nutrition, Inc.,
14
2015 WL 13102417 (S.D. Cal. Sept 11, 2015) ............................................................................ 6
15
Bruton v. Gerber Products Company,
16 2014 WL 17211193 (N.D. Cal. Jan. 15, 2014) ......................................................................... 12
17 Cameron v. E.M. Adams & Co.,
547 F.2d 473 (9th Cir.1976) ....................................................................................................... 20
18
19 Castagnola v. Hewlett-Packard Co., No. C,
2012 WL 2159385 (N.D. Cal. June 13, 2012) ............................................................................. 6
20
Chestnut Hill Development Corp. v. Otis Elevator Co.,
21 653 F.Supp. 927 (D. Mass. 1987) .............................................................................................. 15
22
Doninger v. Pac Nw. Bell, Inc.,
23 564 F.2d 1304 (9th Cir. 1977) .................................................................................................... 17
24 Eliason v. Genteck Bldg. Prods., 2011 WL 3704823 (N.D. Ohio Aug. 23, 2011) ....................... 17
25 Freeman v. Time, Inc.,
26 68 F.3d 285 (9th Cir. 1995) ......................................................................................................... 6

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1 TABLE OF AUTHORITIES (contd.)

2
3 Franklin v. Govt. Emp. Ins. Co.,

2011 WL 5166458 (W. D. Wash. Oct. 31, 2011) ...................................................................... 19
4
Gen. Tel. Co. of Southwest v. Falcon,
5 457 U.S. 147 (1982) ................................................................................................................... 17
6 Groeden v. Random House, Inc.,
7 61 F.3d 1041 (2d Cir. 1995) ....................................................................................................... 12
8 Hayes v. Rule, No. 1:03 CV 1196,

2001 WL 2136946, at *3 (M.D.N.C Aug. 19, 2005) ................................................................ 11
9
Hairston v. S. Beach Beverage Co.,
10
2012 WL 1893818 (C.D. Cal. May 18, 2012) ............................................................................. 7
11
Hanlon v. Chrysler Corp.,
12 150 F.3d 1011 (9th Cir. 1998) .................................................................................................... 20
13 Klay v. Humana, Inc.,

382 F.3d 1241 (11th Cir. 2004) .................................................................................................. 19
14
15 In re Bridgestone/Firestone, Inc.,
288 F.3d 1012 (7th Cir. 2002) .................................................................................................... 19
16
In re Clorox Consumer Litigation,
17 894 F.Supp 2d 1224 (N.D. Cal. 2012) ................................................................................. 12, 22
18
In re ConAgra Foods, Inc.,
19 2015 WL 1062756 (C.D.Cal. Feb. 23, 2015) ............................................................................. 21
20 In re NJOY, Inc. Consumer Class Action Litigation, 120 F. Supp. 3d 1050 (C.D. Cal. 2015) .... 23
21 In re Optical Disk Drive Antitrust Litigation,
22 2011 WL 3894376 (N.D. Cal. 2011) ............................................................................................ 2
23 In re Rust-Oleum Restore Marketing, Sales Practices and Products Liability Litigation,

155 F.Supp.3d 772 (N.D. Ill. 2016) ........................................................................................... 14
24
In re Samsung Elecs.Am., Inc Blu-Ray Class Action Litig.,
25 2008 WL 5451024 (D.N.J. Dec. 31, 2008) ................................................................................ 10
26

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2
3 In re WalMart Stores, Inc. Wage and Hour Litigation,

505 F.Supp.2d 609 (N.D. Cal. 2007) ..................................................................................... 2, 17
4
Kamm v. Cal. City Dev. Co.,
5 509 F.2d 205 (9th Cir.1975) ....................................................................................................... 17
6 Keegan v. Am. Honda Motor Co.,
7 284 F.R.D. 504 (C.D. Cal. 2012) ............................................................................................... 20
8 Keilholtz v. Lennox Prods, Inc.,

268 F.R.D. 330 (N.D. Cal. 2010) ......................................................................................... 20, 21
9
Lam v. General Mills, Inc.,
10
2012 WL 1656731 (N.D. Cal. May 10, 2012) ............................................................................. 9
11
Livid Holdings Ltd. v. Salomon Smith Barney, Inc.,
12 416 F.3d 940 (9th Cir. 2005) ........................................................................................................ 5
13 McKinnis v. Kellogg USA,

2007 WL 4766060 (C.D. Cal. Sept. 19, 2007) ............................................................................. 7
14
15 McKinniss v. Sunny Delight Beverages Co.,

2007 WL 4766525 (C.D. Cal. Sept. 4, 2007) ............................................................................... 7
16
Miller v. Ghirardelli Chocolate Co.,
17 912 F.Supp. 861 (N.D. Cal. 2012) ............................................................................................... 9
18
Phillips Petroleum Co. v. Shutts,
19 472 U.S. 797 (1985) ................................................................................................................... 23
20 Pilgrim v. Universal Health Card, LLC,

660 F.3d 943 (6th Cir. 2011) ................................................................................................ 17, 18
21
22 Pokorny v. Quistar, Inc.,

601 F3d. 987 (9th Cir. 2010) ...................................................................................................... 22
23
P.V. v. Sch. Dist. Of Phila., 2011 WL 5127850 (E.D. Pa. Oct. 31, 2011) .................................... 19
24
Ries v. Arizona Beverages USA LLC,
25 287 F.R.D. 523 (N.D. Cal. 2012) ............................................................................................... 26
26

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2
3 Rikos v. Procter & Gamble Co.,

799 F.3d 497 (2015) ................................................................................................................... 21
4
Rios v. State Farm Fire & Cas. Co.,
5 469 F. Supp. 2d 727 (S.D. Iowa 2007) ................................................................................. 22, 23
6 Rodman v. Safeway, Inc.,
7 2015 WL 2265972 (N.D. Cal. May 14, 2015) ........................................................................... 22
8 Rodman v. Safeway, Inc.,

2014 WL 988992 (N.D. Cal. March 9, 2014) ............................................................................ 23
9
Schreiber Distrib. Co. v. Serv-Well Furniture Co.,
10
806 F.2d 1393 (9th Cir. 1986) .................................................................................................... 23
11
Seifi v. Mercedes-Benz USA, LLC,
12 2013 WL 2285339 (N.D. Cal. May 23, 2013) ........................................................................... 22
13 Schwartz v. Lights of Am.,

2012 WL 4497398 (C.D. Cal. Aug. 31, 2012) .......................................................................... 19
14
15 Smilow v. Sw. Bell Mobile Sys., Inc.,

323 F.3d 32 (1st Cir. 2003) ........................................................................................................ 22
16
Sugawara v. Pepsico, Inc.,
17 2009 WL 1439115 (E.D. Cal. May 21, 2009) .............................................................................. 7
18
Sullivan v. D.B. Invs., Inc.,
19 667 F.3d 273 (3d Cir. 2011) ................................................................................................. 18, 19
20 Sw. Sunsites, Inc. v. Fed. Trade Comm'n,

785 F.2d 1431 (9th Cir.1986) ....................................................................................................... 5
21
22 T-Mobile USA, Inc. v. Huawei Device USA, Inc.,

115 F.Supp.3d 1184 (W.D. Wash. 2015) ................................................................................... 16
23
Tait v. BSH Home Appliances Corp.,
24 289 F.R.D. 466 (C.D. Cal. 2012) ............................................................................................... 20
25 Thorpe v. Abbott Laboratories, Inc.,
26 534 F.Supp.2d 1120 (N.D. Cal. 2008) ................................................................................... 1, 17

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2 Torres v. Mercer Canyons Inc.,
3 835 F.3d 1125 (9th Cir. 2016) ...................................................................................................... 2
4 Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) ................................................................................................................... 17
5
Waste Management Holdings, Inc. v. Mowbray,
6 208 F.3d 288 (1st Cir. 2000) ...................................................................................................... 20
7
Williams v. Gerber Prod. Co.,
8 552 F.3d 934 (9th Cir. 2008) ........................................................................................................ 8
9 Wyler Summit P'ship v. Turner Broad. Sys.,

135 F.3d 658 (9th Cir. 1998) ........................................................................................................ 4
10
11 STATE CASES
12 Berschauer Phillips Const. Co. v. Concrete Sci. Servs. of Seattle, L.L.C.,

135 Wash. App. 1025 (2006) ..................................................................................................... 13
13
Dempsey v. Intercontinental Hotel Corp.,
14
511 N.Y.S. 2d 10, 126 A.D.2d 477 (1987) ................................................................................ 16
15
Klem v. Wash. Mut. Bank,
16 176 Wash.2d 771, 295 P.3d 1179 (2013) ..................................................................................... 5
17 Mesler v. Bragg Mgmt. Co.,
39 Cal. 3d 290, 702 P.2d 601 (1985) ......................................................................................... 16
18
19 Panag v. Farmers Ins. Co. of Wash.,
166 Wn.2d 27, 204 P.3d 885 (2009) ............................................................................................ 5
20
State ex rel. Higgins v. SourceGas, LLC,
21 2012 WL 1721783 (Del. Super. Ct. May 15, 2012) ................................................................... 16
22
Tex. Enters., Inc. v. Brockway Standard, Inc.,
23 149 Wash.2d 204, 66 P.3d 625 (2003) ....................................................................................... 14
24 Touchet Valley Grain Growers, Inc. v. Opp & Seibold Gen. Constr., Inc.,
119 Wash.2d 334, 831 P.2d 724 (1992) ............................................................................... 14, 15
25
26 Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp.,

122 Wash.2d 299, 858 P.2d 1054 (1993) ..................................................................................... 4

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2 STATE STATUTES
3
RCW 19.88.020 .............................................................................................................................. 4
4
RCW 62A.2313(1)(a) ................................................................................................................. 13
5
RCW 62A.2-314(2)(e)...14
6
7 FEDERAL COURT RULES
8 Fed. R. Civ. P. 12(f) ...................................................................................................................... 17
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

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1 I. INTRODUCTION
2 Defendants main argument in support of their Motion is that no reasonable purchaser
3
would expect that a box set would contain films that are not included on the list of titles clearly
4
printed on its packaging [.] Motion, p.1. This argument is factually and legally defective. First,
5
it assumes that the reasonable purchaser will actually be able to decipher the list of films printed
6
1
7 in barely readable print at the bottom of the back of the Sets. More importantly, it
8 impermissibly imposes on that reasonable purchaser the obligation to be a James Bond expert
9 who would know every single James Bond film ever produced, marketed, and sold. This is not
10
what the law requires. c (in evaluating the tendency of language to deceive, a court looks not to
11
the most sophisticated readers but rather the least.). Second, Defendants argument also imputes
12
to common words an inordinate meaning. In particular, it presumes that the reasonable purchaser
13
will interpret the all-inclusive language that Defendants chose to use to describe the Sets All
14
15 of the Bond films gathered for the first time in this one-of-a-kind box set every gorgeous girl,
16 nefarious villain and charismatic star from Sean Connery, the legendary actor who started it
17 all to mean that all means some and that every means only certain. Defendants cannot
18
disclaim liability based on such improbable assumptions. The all-encompassing language on the
19
face of the Sets creates an affirmative misstatement actionable both under the CPA and under
20
breach of warranty law.
21
22 Defendants argument in support of their request to strike the class allegations is
23 premature and unsubstantiated. A motion to strike is not a substitute for class certification and
24 should not be used the same way. Thorpe v. Abbott Laboratories, Inc., 534 F.Supp.2d 1120,
25
1
26 Capitalized terms not otherwise defined herein will have the meaning ascribed to them in the Class Action
Complaint for Violation of Washingtons Consumer Protection Act; Breach Express Warranties and Breach of The
Implied Warranties of Merchantability (the Complaint).

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1 1125 (N.D. Cal. 2008); see also In re WalMart Stores, Inc. Wage and Hour Litigation, 505
2 F.Supp.2d 609, 615 (N.D. Cal. 2007). This case is in its infancy, no answer has been filed, and
3
no discovery has been conducted. Further, numerous courts have found that conflict of law issues
4
are not appropriate to address at that stage of the pleadings. See, e.g., In re Optical Disk Drive
5
Antitrust Litigation, 2011 WL 3894376 at * 13 (N.D. Cal. 2011). Finally, for purpose of Rule 23,
6
7 the inclusion of uninjured class members is not a basis for denying certification. See, e.g., Torres
8 v. Mercer Canyons Inc., 835 F.3d 1125, 1137 (9th Cir. 2016).2
9 The facts of this case are straightforward. Defendants, who are the sole owners of the
10
rights to distribute and market every and all James Bond films, released and prominently
11
marketed the Sets with the representations that they contain All of the Bond films, with
12
every gorgeous girl, nefarious villain and charismatic star from Sean Connery, the actor who
13
started it all to Daniel Craig (the False Representations).2 Plaintiff asserts that the False
14
15 Representations are deceiving because the Sets do not contain two of the films that Defendants
16 themselves also distribute and market as Bond films, namely Casino Royale (1967) and Never
17 Say Never Again (the Missing Movies). Nowhere do Defendants challenge Plaintiffs
18
assertion that Defendants are the sole owner of the rights to distribute and market the Missing
19
Movies. Defendants waffle between disputing the obvious that all means all and every
20
means every and argue it does not matter. Either way, what is left is a question of fact that
21
22 cannot be resolved at the pleading stage. Alternatively, Defendants request to have the class
23 allegations stricken is premature and premised on a mischaracterization of applicable law.
24 Regardless, both requests should be denied.

25 2
It is noteworthy that on the cover of The Ultimate James Bond and The James Bond Collection, Defendants
26 removed from the description the language who started it all after Sean Connery. This is an implied
acknowledgment that Sean Connery is NOT the actor who started it all and that the Sets do NOT include ALL of the
Bond films, every gorgeous girl, nefarious villain and charismatic start.

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1 II. FACTUAL BACKGROUND

2 Defendant Metro-Goldwyn-Mayer Studios, Inc. (MGM) owns the distribution rights to
3
the James Bond movies. MGM and Defendant 20th Century Fox have had a worldwide home
4
video distribution arrangement pursuant to which 20th Century Fox handles marketing and
5
distribution services for all or certain of MGMs Blu-ray and DVD products including the James
6
7 Bond movies. Cplt. 17. MGM is the sole distributor of all of the James Bond films. Cplt.
8 21-22.
9 On or about September 2012, Defendants released their first DVD box set called Bond 50,
10
Celebrating Five Decades of Bond 007, which set features and includes 22 original Bond
11
adventures, from Dr. No the movie that started it all to 2008s Quantum of Solace. Cplt.
12
23. The back side of the box of this set contains the following representations: All the Bond
13
films are gathered together for the first time in this one-of-a kind boxed set every gorgeous girl,
14
15 nefarious villain and charismatic star from Sean Connery, the legendary actor who started it all,
16 to Daniel Craig. The same representations are made on the back of The Ultimate James Bond
17 Collection, released in or around July 15, 2015, and The James Bond Collection, which was
18
released in or around January 1, 2016. Cplt. 26-27, 29-30. The list of the movies contained in
19
each of the Sets is printed at the bottom of each of the Sets boxes in very small print. Cplt. 32.
20
Despite representing that the Sets contain ALL the James Bond films, all of the Sets are missing
21
22 the two James Bond movies entitled Casino Royale (1967) and Never Say Never Again. Cplt.
23 35. Casino Royale (1967) and Never Say Never Again are clearly marketed and distributed by
24 Defendants as James Bond movies. Cplt. 41-46.

25 Plaintiff purchased The James Bond Collection via the Internet from the Amazon.com
26
website for $106.44. Cplt. 49. Plaintiff would not have purchased The James Bond Collection

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1 at the price she paid absent the false, misleading, and deceptive representations on the box of the
2 James Bond Collection as set forth above. Cplt. 53-54.
3
III. STANDARD OF REVIEW FOR MOTION TO DISMISS
4
In ruling on a motion to dismiss, the Court must construe the complaint in the light most
5
favorable to the non-moving party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d
6
7 940, 946 (9th Cir. 2005). The Court must accept all well-pleaded allegations of material fact as
8 true and draw all reasonable inferences in favor of the plaintiff. Wyler Summit P'ship v. Turner
9 Broad. Sys., 135 F.3d 658, 661 (9th Cir. 1998). Dismissal is appropriate where a complaint fails
10
to allege enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v.
11
Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the plaintiff pleads
12
factual content that allows the court to draw the reasonable inference that the defendant is liable
13
for the misconduct alleged. Aschcroft v. Iqbal, 556 U.S. 662, 678 (2009).
14
15 IV. ARGUMENT
16 A. Defendants Violated The Washington Consumer Protection Act.

17 Defendants arguments that Plaintiffs CPA claim fails because: (1) a reasonable
18
consumer would not have believed that the Sets included movies that were not listed; (2) the
19
information on or inside of the Sets defeats the claim; and (3) All and Every are not
20
actionable statements, is unsupported in law and in fact.
21
22 A CPA claim requires (1) an unfair or deceptive act or practice; (2) which occurs in trade
23 or commerce; (3) that impacts the public interest; (4) which causes injury to the plaintiff in his or
24 her business or property; and (5) which injury is causally linked to the unfair or deceptive act.
25 RCW 19.88.020; Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299,
26
858 P.2d 1054, 1061 (1993) (en banc). A communication may contain accurate information yet

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1 be deceptive. Panag v. Farmers Ins. Co. of Wash., 166 Wash.2d 27, 50, 204 P.3d 885, 895
2 (2009). Deception exists if there is a representation, omission or practice that is likely to
3
mislead a reasonable consumer. Id. (citing Sw. Sunsites, Inc. v. Fed. Trade Comm'n, 785 F.2d
4
1431, 1435 (9th Cir.1986). To prove that a practice is deceptive, neither intent to deceive nor
5
actual deception is required. Panag, 166 Wash.2d at 47, 63, 204 P.3d 885. The question is
6
7 whether the conduct has the capacity to deceive a substantial portion of the public. Panag, 166
8 Wash.2d at 47, 204 P.3d 885. [A]n act or practice can be unfair without being deceptive. Klem
9 v. Wash. Mut. Bank, 176 Wash.2d 771, 787, 295 P.3d 1179 (2013).
10
1. The Packaging Viewed As A Whole is Deceiving.
11
Pursuant to an agreement between MGM and 20th Century Fox, the Sets are marketed and
12
sold containing the False Representations. Cplt. 24, 25, 27, 28, 30, 31. The ordinary
13
meaning of all is the whole number or sum of and that of every is each part of a group
14
3
15 without exception. In this case, all means the sum of the Bond films, as evidenced by
16 Defendants marketing and selling them as such, including Casino Royale (1967) and Never Say
17 Never Again. It is a circular argument to argue that the list of movies qualifies the label on the
18
packaging. While it may be true that the list is accurate and that a reasonable consumer would
19
expect to find the movies listed on the packaging (assuming he or she can read that list), it is also
20
more than likely, if not certain, that this reasonable consumer, who is not required to be a James
21
22 Bond film expert, will and does believe that the list reflects what the label represents: the sum of
23 the Bond films gathered together for the first time, including Casino Royale and Never Say Never
24 Again. Obviously, the reasonable consumer would be misled. Having described the false
25
26 3
See https://www.merriam-webster.com/dictionary/all&https://www.merriam-webster.com/dictionary/every (last
visited April 26, 2017).

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1 statements and the fact that she and other consumers will likely be, and were in fact deceived,
2 Plaintiff has stated all the elements of a CPA claim.
3
Defendants rely on several cases in which courts have dismissed similar claims on the
4
basis that the challenged representations were qualified by further disclosures, and as a result,
5
could not be deceiving. These cases do not help Defendants, as they are inapposite to the facts of
6
7 this case. For example, in Freeman v. Time, Inc. 68 F.3d 2845, 289 (9th Cir. 1995), the court in
8 dismissing the plaintiffs consumer protection claim explained that the qualifying language
9 appeared immediately next to the representations it qualified, i.e. that the consumer had won a
10
sweepstake. The court stated that no reasonable reader could ignore it. Any persons who
11
thought that they had won the sweepstakes would be put on notice that this was not guaranteed
12
simply by doing sufficient reading to comply with the instructions for entering the sweepstakes.
13
Freeman, 68 F.3d at 28990. The same holds true for Bobo v. Optimum Nutrition, Inc. 2015 WL
14
15 13102417, at *1 (S.D. Cal. Sept 11, 2015). In Bobo, the court found that a reasonable consumer
16 could not be misled that a protein powder only contained 100% Whey where the front of the
17 product label also included in legible terms that the product was Naturally & Artificially
18
Flavored, DOUBLE RICH CHOCOLATE flavored and that 100% of the protein were from
19
whey. Id. at *4. The court also emphasized that the ingredient list was displayed in font
20
significantly larger than the nutrition panel. Id. at *5; see also Castagnola v. Hewlett-Packard
21
22 Co., No. C 11-05772 JSW, 2012 WL 2159385, at *10 (N.D. Cal. June 13, 2012) (dismissing
23 consumer protection claims on the basis that the consumer had to acknowledge and approve
24 various statements on a webpage before making a purchasing decision and finding that [a]
25 consumer cannot decline to read clear and easily understandable terms that are provided on the
26
same webpage in close proximity to the location where the consumer indicates his agreement to

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1 those terms and then claim that the webpage, which the consumer has failed to read, is
2 deceptive.); Hairston v. S. Beach Beverage Co., No. CV 12-1429-JFW DTBX, 2012 WL
3
1893818, at *45 (C.D. Cal. May 18, 2012) (dismissing all natural deceptive labeling claims
4
because the label does not simply state that it is all natural without elaboration or explanation.
5
Instead, the all natural language is immediately followed by the additional statement with
6
7 vitamins or with B vitamins and concluding that no reasonable consumer would read the all
8 natural language as modifying the with vitamins language and believe that the added vitamins
9 are supposed to be all natural vitamins; McKinniss v. Sunny Delight Beverages Co., No.
10
CV0702034-RGKJCX, 2007 WL 4766525, at *4 (C.D. Cal. Sept. 4, 2007) (labels cannot
11
mislead reasonable consumer into believing that it contains substantial amount of fruits when the
12
labels show a rising sun, slices of various fruits, and bold, capitalized print to indicate that the
13
product in question is not fruit juice but merely flavored with concentrated fruit juices and list
14
15 water and high fructose corn syrup as the most predominant ingredients, and all state that each
16 product contains 2% or less of various fruit juices); Sugawara v. Pepsico, Inc., No. 2:08-cv-
17 01335-MCE-JFM, 2009 WL 1439115, at *5 (E.D. Cal. May 21, 2009) (no reasonable consumer
18
could be deceived into believing that the product contained a fruit that does not exist); McKinnis
19
v. Kellogg USA, No. CV07-2611ABC(RCX), 2007 WL 4766060, at *4 (C.D. Cal. Sept. 19,
20
2007) (similar ruling when the front panel of the box of Foot Loop cereals clearly and accurately
21
22 describes the product as a SWEETENED MULTI-GRAIN CEREAL, not any sort of fruit-
23 based cereal).
24 The case here is unlike any of the above-cited cases. In fact, it is unlike any other cases.
25 In other cases, the alleged disclaimer or qualifying statement relied upon by the defendants to
26
argue that a label is not deceptive, does not presuppose that the consumer possesses some

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1 inherent and in depth knowledge of the product independent of the package. The qualifying
2 statements usually attempt to more or less successfully educate or inform the unwary purchaser
3
that the product is not quite what it says it is or seems to be. In this case, the qualifying
4
statement, i.e., the list of films in the Sets does not qualify anything, as the reasonable purchaser
5
is not charged with knowing what all of the James Bond movies are. If anything, this case is
6
7 more is more akin to Williams v. Gerber Prod. Co., 552 F.3d 934, 939 (9th Cir. 2008) discussed
8 below.
9 In Gerber, the court found that a number of features of the packaging Gerber used for its
10
Fruit Juice Snacks product could likely deceive a reasonable consumer. Williams v. Gerber Prod.
11
Co., 552 F.3d at 939. Gerber sold a product called Fruit Juice Snacks with a packaging
12
showing pictures of a number of different fruits, potentially suggesting (falsely) that those fruits
13
or their juices were contained in the product and a statement that it was made with fruit juice
14
15 and other all natural ingredients and a claim that Fruit Juice Snacks was just one of a variety of
16 nutritious Gerber Graduates foods and juices that have been specifically designed to help
17 toddlers grow up strong and healthy. Id. The court found that those statements could easily be
18
interpreted by consumers as a claim that all the ingredients in the product were natural, which
19
appeared to be false and that the health claim added to the potential deception. Id. In reversing
20
the district courts grant of a motion to dismiss, the Ninth Circuit noted that reasonable
21
22 consumers should not be expected to look beyond misleading representations on the front of
23 the box to discover the truth from the ingredient list in small print on the side of the box. The
24 ingredient list on the side of the box appears to comply with FDA regulations and certainly
25 serves some purpose. We do not think that the FDA requires an ingredient list so that
26
manufacturers can mislead consumers and then rely on the ingredient list to correct those

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1 misinterpretations and provide a shield for liability for the deception. Instead, reasonable
2 consumers expect that the ingredient list contains more details information about the product that
3
confirms other representations on the packaging. Williams v. Gerber Prod. Co., 552 F.3d at
4
939 (emphasis added).4 In other words, under Gerber, a court cannot draw the inference that an
5
entire package was viewed when determining if the challenged representations are misleading. Miller
6
v. Ghirardelli Chocolate Co., 912 F.Supp. 861, 874 (N.D. Cal. 2012) (denying a motion to dismiss
7
8 where plaintiff read the front and part of the back of the package, even though some portions of the
9 back of the package contained truthful representations that may have dispelled confusion).
10 The reasonable consumer here has no reason to doubt that the ingredient list reflects
11 something other than all of the Bond films and that she can rely on the Defendants
12
representations. Yet, it does not. The ingredient list reflects, in Defendants own words, a
13
curated selection of Bond films. The word curated used by Defendants in their Motion to
14
describe what is included in the Sets belies the all and every language on the labels of the
15
16 Sets.
17 In this case, sufficient qualifying language would have been, for example, a visible
18 disclaimer that the Sets include only all of the Eon produced films or other such limiting
19
language. Even viewed as a whole, no reasonable person, unless a James Bond expert, would
20
understand that all does not mean all and every means only certain films .
21
2. The Information Inside The Box Does Not Defeat Plaintiffs CPA Claim.
22
Defendants argument that the listing of the films in multiple locations inside the
23
24 packaging defeats Plaintiffs CPA claim suffers from the same infirmities as their argument on
25
4
26 See also Ackerman v. The Coca-Cola Co., No. 09-cv-0395, 2010 WL 2925955, at *16-17 (E.D.N.Y. Jul. 21,
2010); Lam v. General Mills, Inc., No. 11-5056-SC, 2012 WL 1656731, at *1 (N.D. Cal. May 10, 2012); Astiana v.
Dreyers Grand Ice Cream, Inc., 2012 U.S. Dist. LEXIS 101371 (N.D. Cal. July 20, 2012).

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1 the necessity to view the packaging as a whole. They can display the list inside, outside, and in
2 the middle of the Sets. The list may accurately reflect the content of the Sets. But it still does not
3
change the fact that a reasonable consumer would be misled into believing that the list is an
4
accurate inventory of each and every James Bond film. Defendants cant have it both ways.
5
They cannot individually market, sell, and profit from the Missing Movies by virtue of their
6
7 status as Bond films, as evidenced by the true and accurate copies of color photographs of the
8 front and back sides of Blu-rays discs of the Missing Movies attached to the Kleinberg
9 Declaration filed herewith as Exhibits 1 and 2, while at the same time market the Sets as
10
encompassing all of the Bond films.5
11
As for the cases Defendants rely upon, they are again inapposite. At the outset, the claims
12
dismissed by the courts in both cases were breach of warranty claims, not as here, consumer
13
protection claims. In re Samsung Elecs. Am., Inc. Blu-Ray Class Action Litig., No. CIV. A. 08-
14
15 0663 (JAG), 2008 WL 5451024, at *2-6 (D.N.J. Dec. 31, 2008) and Bereblat v. Apple, Inc., No
16 08-4969 JF (PVT), 2010 WL 1460297, at *2-9 (N.D. Cal. Apr. 9, 2010). In addition, the holding
17 of the court in In Re Samsung was based on a specific New Jersey state law that did not require
18
warranties or disclaimers to be printed on the packaging so that customers can readily see
19
and consider the terms before purchasing the product. In re Samsung Elecs. Am., Inc. Blu-Ray
20
5
The back side of the box of Casino Royale states, among other things, that Casino Royale is Bond. Psychedelic
21 Bond. Exhibit 1 to the Kleinberg Decl. filed herewith. Similarly, the front side of the box of Never Say Never
Again features a photo of Sean Connery in a tuxedo and bow tie holding a pistol and contains the statement SEAN
22 CONNERY IS BACK IN ACTION AS JAMES BOND! Exhibit 2. The MGM logo and and/or 20th Century Fox
logo are present and discernible on the outside of these films boxes. Exhibits 1 and 2. The special features sections
23 inside of these two Blu-ray discs also reflect that their creators considered them to be James Bond films, and the
movies were marketed as such when they debuted in the theaters. True and correct copies of color photos of screen
24 shots from these special features are attached as exhibits to the Kleinberg Decl. and show (1) Never Say Never Again
was marketed as a James Bond film upon its release in the theaters (movie billboard reads Sean Connery is James
25 Bond NEVER SAY NEVER AGAIN) (Exh. 3); (2) billboard advertisement on building reads CASINO ROYALE
IS TOO MUCH FOR ONE JAMES BOND, (Exh. 4); (3) theater billboard reads JAMES BOND 007 CASINO
26 ROYALE, (Exh. 5); and (4) theater billboard reads CASINO ROYALE JAMES BOND 007 LOEWS
CAPITOL and accompanying comment that reads ROYAL LINES GO AROUND THE BLOCK! (Exh. 6).

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1 Class Action Litig., No. CIV. A. 08-0663 (JAG), 2008 WL 5451024, at *4. In Berenblat, the
2 court dismissed the breach of warranty claims because the plaintiffs themselves had pre-sale
3
notice of the warranty exclusions. Berenblat v. Apple, Inc., No 08-4969 JF (PVT), 2010 WL
4
1460297, at *3-4. This is simply not the case here. Here, consumers reading of the list does not
5
put them on notice that the Sets do not contain all the Bond films. Rather, it compounds the
6
7 False Representations. In addition, a consumer cannot read the internal packaging until she buys
8 the Set and opens it. Defendants cannot rely on any information inside a sealed and wrapped box
9 set.
10
3. The Statements All And Every Are Actionable Statements.
11
Defendants argument that all and every are statements of opinion and therefore not
12
actionable defies logic and is internally inconsistent. Defendants state the use of all and
13
every reflects a judgement about which James Bond films should be included in these curated
14
15 collections based on various factors, including the films content and production history. Motion,
16 p. 9. This argument alone belies Defendants claims for dismissal. No judgment as to which film
17 to include is necessary when a collection claims to include all of the films. The Sets do not
18
purport to be curated sets, i.e., sets with certain selected films based on an opinion. They
19
purport to be sets gathering for the first time all of the James Bond movies. All that is needed for
20
Defendants to put together the Sets is to know of all the James Bond films ever made. Who is to
21
22 have better knowledge than the very owners of the James Bond brand that is reported to be worth
23 close to $20 billion?
24 Once again, none of the cases cited by Defendants provide any assistance. Labeling a CD
25 as revolutionary with references to a historical figure is a statement of opinion. Hayes v. Rule,
26
No. 1:03 CV 1196, 2001 WL 2136946, at *3 (M.D.N.C Aug. 19, 2005). The same goes with

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1 judgments about the Kennedy assassination. Groeden v. Random House, Inc., 61 F.3d 1041,
2 1052 (2d Cir. 1995). All these qualifying statements that are in Defendants own words
3
judgments are inherently subjective. But all and every are neither subjective nor vague. They
4
are measurable statements of facts and contain no judgment call whatsoever. In re Clorox
5
Consumer Litigation, 894 F.Supp 2d 1224, 1235-1236 (N.D. Cal. 2012) (finding that Cloroxs
6
7 representations that the litter Fresh Step is better at eliminating litter box odors than Arm &
8 Hammer Super Scoop is neither highly subjective nor vague as Clorox argued because Clorox
9 identified a point of comparison (Scoop) and a metric for comparison, elimination cat orders). In
10
this case, Defendants make an absolute and definite statement of a fact when they refer to the
11
collections in the Sets as containing all the Bond films.
12
In sum, Plaintiff has adequately pled that the Defendants violated the CPA, and this claim
13
should therefore not be dismissed. In addition, what a reasonable consumer understands is a
14
15 question of fact inappropriate to address on a motion to dismiss. See Bruton v. Gerber Products
16 Company, 2014 WL 17211193, at *11 (N.D. Cal. Jan. 15, 2014).

17 B. Plaintiff Has Stated A Claim For Breach Of Express Warranty.
18
Defendants argument that Plaintiff fails to state a claim for breach of express warranty
19
because she has actual or imputed knowledge of the true condition of the goods is founded on the
20
same wrongful premises as their argument relating to Plaintiffs CPA claim: the movies
21
22 contained in the Sets are accurately listed on the outside of the Sets. As a result, Defendants
23 contend, they are absolved of any breach of express warranty liability. This defies logic and the
24 law.
25 According to the Uniform Commercial Code (the UCC) that has been adopted by
26
every state in the country, any affirmation of fact or promise made by the seller of goods to the

17685-1/ASK/18016-1/ASK/762889
1 buyer which relates to the goods and becomes part of the basis of the bargain creates
2 an express warranty that the goods shall conform to the affirmation or promise.
3
RCW 62A.2313(1)(a). Whether statements constitute an express warranty on which a buyer
4
relies involves questions of fact for a jury to resolve. Berschauer Phillips Const. Co. v. Concrete
5
Sci. Servs. of Seattle, L.L.C., 135 Wash. App. 1025 (2006).
6
7 Here, Defendants make the express promise to buyers that the Sets are one-of-a-kind and
8 contain all of the Bond films, when, in fact, they do not. Defendants do not deny that the Sets
9 do not contain all of the Bond films and that they market and sell the Missing Films separately.
10
The list of movies at the bottom of the Sets boxes does not help the Defendants position. It
11
merely compounds Defendants breach of warranty by failing to disclose that two movies are
12
excluded from the Sets. In addition, all and every are expressions of facts that leave no
13
room for interpretation, in particular when articulated by the very people who control the
14
15 distribution and marketing of all of the Bond films. By failing to disclose that the Sets are
16 curated Sets and do not contain all of the Bond films, Defendants breached the express
17 warranty they made and on which Plaintiff and class members relied.
18
C. Plaintiff Has Also Stated A Claim For Breach Of The Implied Warranty Of
19 Merchantability.
20 Plaintiff is an individual who purchased one of the Sets through Amazon. Cplt. 49.
21 Amazon is merely an intermediary between Plaintiff and Defendants. Cplt. 50. In addition,
22
MGM offers Bond movies for sale on its own website through Amazon. Cplt. 57. The
23
representations found on Amazon relate to the Sets and the Missing Movies as well, and replicate
24
word by word the express representations made on the Sets and the Missing Movies. Defendants
25
26

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1 put the Sets in the stream of commerce and have marketed them knowing that they do not
2 conform to the representations of fact made on the Sets boxes. RCW 62A.2-314(2)(f).
3
Under Washington law, to be merchantable goods must, among other things, conform
4
to the promises or affirmations of fact made on the container or label if any. RCW 62A.2-
5
314(2)(e). Here, there is no question that the Sets are not merchantable and that the implied
6
7 warranty of merchantability has therefore been breached; the Sets do not conform to the
8 promises or affirmations of fact made on the container or label[.] The Sets packaging states
9 the Sets contain all of the James Bond films, while each of the Sets is missing two such films.
10
Meanwhile, Defendants argument that Plaintiffs breach of implied warranty claim must
11
fail for lack of privity between Plaintiff and Defendants ignores at least two (2) well-recognized
12
exceptions to the privity requirement. The first exception arises when the plaintiff relies on
13
written labels or advertisements of a manufacturer. See, e..g., In re Rust-Oleum Restore
14
15 Marketing, Sales Practices and Products Liability Litigation, 155 F.Supp.3d 772, 806-7 (N.D.
16 Ill. 2016) (internal citations omitted). Plaintiff has alleged she relied on the False Representations
17 of fact set forth on one of the Sets to her detriment. Accordingly, the Court need look no further
18
and Plaintiffs claim for breach of the implied warranty of merchantability should not be
19
dismissed at this time. Nevertheless, a second exception to the privity requirement exists where
20
a plaintiff is the intended third-party beneficiary of an underlying contract between a
21
22 manufacturer and intermediate dealer. Tex. Enters., Inc. v. Brockway Standard, Inc.,149
23 Wash.2d 204, 66 P.3d 625, 627-28 (Wash. 2003). A plaintiff can demonstrate she is a third-
24 party beneficiary where a manufacturer knew a purchaser's identity, knew the purchaser's
25 purpose for purchasing the manufacturer's product, knew a purchaser's requirements for the
26
product, delivered the product, and/or attempted repairs of the product in question. Touchet

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1 Valley Grain Growers, Inc. v. Opp & Seibold Gen. Constr., Inc., 119 Wash.2d 334, 831 P.2d 724
2 (Wash. 1992) (en banc).
3
In this case, Plaintiff has alleged she relied to her detriment on the False Representations
4
on the box of one of the Sets that the Defendants manufactured and distributed. Thus, the
5
manufacturers advertisements exception to the privity requirement applies here. In addition,
6
7 Defendants knowingly put the Sets in the stream of commerce and marketed the Sets with
8 specific misstatements of fact that are visible and are intentionally directed to consumers further
9 down the distribution chain. This is a case where Defendants make express representations to
10
individual as opposed to commercial purchasers with the intent and knowledge that these
11
individual purchasers will rely on them. Accordingly, Plaintiff has also pleaded the requisite
12
elements to support her claim for breach of implied warranty of merchantability via a third-party
13
beneficiary theory of recovery, and this claim should not now be dismissed. Cf. Chestnut Hill
14
15 Development Corp. v. Otis Elevator Co., 653 F.Supp. 927 (D. Mass. 1987) (holding genuine
16 issue of material fact existed as to whether owner-developer was in privity with elevator
17 subcontractor).
18
D. It Is Premature To Determine Whether MGM Holdings And Twenty-First
19 Century Fox Should Be Dismissed.
20 It would also be improper to dismiss Defendants MGM Holdings and Twenty-First

21 Century Fox from this action at this time. Plaintiff has alleged in her Complaint that all four of
22
the corporate Defendants are responsible for marketing and selling the Sets by way of false
23
statements and advertisements on the Sets packaging and elsewhere and that they all profit from
24
the sales of the Sets. Cplt at 21-22. None of the Defendants have filed an answer to the
25
26 Complaint denying such and no discovery has been done in this case. Discovery might reveal

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1 the corporate parents in this case are liable to Plaintiff on a variety of legal theories that either
2 involve and arise from their own actions vis--vis Plaintiff or the Sets or stem solely from the
3
acts of their subsidiary agents. Regardless, the corporate parents liability (or lack thereof)
4
cannot rightly be determined at this early stage of the litigation given the broad allegations of
5
joint liability set forth in the Complaint and because the principal-agent relationship is normally
6
7 a question of fact to be decided by the jury. Cf. T-Mobile USA, Inc. v. Huawei Device USA, Inc.,
8 115 F.Supp.3d 1184 (W.D. Wash. 2015) (denying Chinese parent companys motion to dismiss
9 claims against it in suit brought against parent and its subsidiary where plaintiff alleged parent
10
acted intentionally by directing its conduct at Washington).
11
Lastly, Mesler v. Bragg Mgmt. Co., 39 Cal. 3d 290, 301, 702 P.2d 601, 607 (1985),
12
Dempsey v. Intercontinental Hotel Corp., 511 N.Y.S. 2d 10, 11, 126 A.D.2d 477, 478 (1987),
13
and State ex rel. Higgins v. SourceGas, LLC, 2012 WL 1721783 at * 5 (Del. Super. Ct. May 15,
14
15 2012) do not support the Defendants position, as these cases are corporate veil piercing cases
16 that neither applied Washington law nor concerned situations like this where the parent company
17 was itself alleged to have committed wrongful acts of its own that caused the plaintiffs injury.
18
Unlike this case, Mesler, Dempsey, and Higgins each presented the situation where a plaintiff
19
sought to impose liability on the defendants corporate parent based solely on the
20
parent/subsidiary relationship.
21
22 V. STANDARD OF REVIEW FOR MOTION TO STRIKE
23 Defendants motion to strike the class allegations from Plaintiffs complaint should be
24 denied as unwarranted and premature as class discovery has not yet commenced, and the Court,
25 at this stage cannot conduct a rigorous conflicts of law or Rule 23 analysis.
26

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1 Rule 12(f) of the Federal Rules of Civil Procedure permits a court to strike from a
2 pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
3
matter. While class allegations may be stricken at the pleading stage, Kamm v. Cal. City Dev.
4
Co., 509 F.2d 205, 212 (9th Cir.1975), motions to strike class allegations are generally
5
disfavored because a motion for class certification is a more appropriate vehicle[.] Thorpe v.
6
7 Abbott Laboratories, Inc., 534 F.Supp.2d 1120, 1125 (N.D.Cal. 2008).6 Moreover, class
8 determination generally involves considerations that are enmeshed in the factual and legal
9 issues comprising the plaintiffs cause of action. Gen. Tel. Co. of Southwest v. Falcon, 457 U.S.
10
147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
11
349 (2011) (citing Gen. Tel. Co. of Southwest).
12
Defendants reliance on Pilgrim v. Universal Health Card, LLC, 660 F.3d 943 (6th Cir.
13
2011) to support their request to strike the class allegations is misplaced. There, in striking class
14
15 allegations in connection with claims that the defendants marketing of a membership program
16 for access to a network of low-priced healthcare providers was deceptive and violated state
17 consumer protection law, the Sixth Circuit noted:
18
Even if a nationwide class covering claims governed by the laws of various states
19 could overcome this problem by demonstrating considerable factual overlap, a
point we need not decide, this is not such a case. The defendants program did not
20 operate in the same way in very State and the plaintiffs suffered distinct injuries
21 6
See also In re WalMart Stores, Inc. Wage and Hour Litigation, 505 F.Supp.2d 609, 615 (N.D.Cal. 2007)
22 (Because the shape and form of a class action evolves only through the process of discovery, courts rarely
dismiss class allegations before discovery has commenced (internal quotation marks and citations omitted)
23 (collecting cases from other jurisdictions making clear that dismissal of class allegations before discovery has
commenced is rare); P.V. v. Sch. Dist. Of Phila., No. 2:11-cv04027, 2011 U.S. Dist. LEXIS 125370, at *9-10
24 (E.D. Pa. Oct. 31, 2011) (district courts in the Third Circuit typically deny as premature motions to strike class
allegations.); Doninger v. Pac Nw. Bell, Inc. 564 F.2d 1304, 1313 (9th Cir. 1977) (the better and more advisable
25 practice for a District Court to follow is to afford the litigants an opportunity to present evidence as to whether a
class action was maintainable); Eliason v. Genteck Bldg. Prods., No. 1:10-cv-94032, 2011 U.S. Dist. LEXIS
26 94032, at *5-8 (N.D. Ohio Aug. 23, 2011) (rejecting defendants motion to strike class allegations because
Defendants argument on class certification are premature. Whether the commonality requirement has been
demonstrated cannot be determined until discovery has taken place and choice of law provisions applied.).

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1 as a result. A core part of the claim is that the program was worthless because the
listed healthcare providers new the plaintiffs did not offer the promised discounts
2 or because there were no listed providers near them in the first place. But to
3 establish this point, the plaintiffs would need to make particularized showings in
different parts of the countryWhen and when featured providers offered
4 discounts is a prototypical factual issue that will vary from state to state.
5 Pilgrim, 660 F.3d at 948. The point that the Sixth Circuit did not decide is precisely the point
6 of this case. In this case,
7
There is a sufficient constellation of common issues [that] binds class members
8 together that differences in state law treatment of [] claims likely fall into a
handful of discernible statutory schemes. Nothing in the language of Rule 23
9 commands that everyone in a class must allege precisely identical or uniform
causes of action and statutory variations do not defeat predominance in the
10
presence of exceedingly common issues. Instead, where a defendants singular
11 conduct gives rise to one cause of action in one state, while providing for a
different cause of action in another jurisdiction, the courts may group both claims
12 in a single class action. The tactic in litigation advances the laudatory purposes of
the class action device, preserv[ing] the resources of both the court and the
13 parties by permitting issues affecting all calls members t be litigated in an
efficient, expedited and manageable fashion.
14
15 Sullivan v. D.B. Invs., Inc., 667 F.3d 273, 302 (3d Cir. 2011) (internal citations omitted), cert.
16 denied by Murray v. Sullivan, 566 U.S. 923 (2012).

17 The overarching issue in this case - whether Defendants uniform False Representations
18
are likely to deceive a reasonable purchaser, focuses solely on Defendants labeling of the Sets,
19
which is intended to create the false impression that consumers are purchasing all the Bond
20
films in one fell swoop. All purchasers of the Sets were exposed to the same False
21
22 Representations. No state statute or common law is likely to allow sellers of goods to
23 misrepresent the nature of their products. This case is precisely a case where if a defendants
24 singular conduct gives rise to one cause of action in one state, while providing for a different
25 cause of action in another jurisdiction, the courts may group both claims in a single class action
26

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1 and any statutory variations will not defeat predominance in the presence of exceedingly
2 common issues. Sullivan., 667 F.3d 273 at 302.
3
A. Defendants Washington Choice Of Law Arguments Are Improper And
4 Premature.
5 Defendants urge the Court to strike the Complaints nationwide class allegations and
6 determine on the basis of the pleadings alone that Plaintiffs claims cannot be brought on behalf
7
of persons who purchased the Sets outside of Washington. Motion, p. 14. Defendants add that
8
class actions that are not governed by one states law are unworkable. Id. at 15. Defendants
9
arguments are premature and ignore a plaintiffs well established options at class certification for
10
11 grouping laws from similar states and pursuing a partial nationwide class or a single state class,
12 all of which require that discovery be conducted.
13 First, as noted above, choice of law issues are better suited for determination at the class
14
certification stage: Bias v. Wells Fargo Bank, N.A., 942 F. Supp. 2d 915, 930 (N.D. Cal. 2015)
15
(refusing to address choice of law issues at motion to dismiss because no discovery had been
16
done and record not fully developed). All of the cases the Defendants cite demonstrate this point
17
as the choice of law analysis was conducted at the class certification stage and was based on a
18
19 developed factual record. See, e.g., Schwartz v. Lights of Am., No. 11-1712-JVS (MLGx, 2012
20 WL 447398, at *9 (C.D. Cal. Aug. 31, 2012); In re Bridgestone/Firestone, Inc., 288 F.3d 1012,
21 1015 (7th Cir. 2002); Franklin v. Govt. Emp. Ins. Co., No. C10-5183BHS, 2011 WL 5166458, at
22
*7 (W. D. Wash. Oct. 31, 2011).
23
Further, courts have overwhelmingly found that if a claim is based on a principle of law
24
that is uniform among the states, class certification is a realistic possibility. Klay v. Humana,
25
26 Inc. 382 F.3d 1241, 1262 (11th Cir. 2004). Many courts have also found that there are no material

17685-1/ASK/18016-1/ASK/762889
1 differences among states consumer protection laws to create material differences. See, e.g.,
2 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022-23 (9th Cir. 1998) ([T]he idiosyncratic
3
differences between states consumer protection laws are not sufficiently substantive to
4
predominate over shared claims.); Keilholtz v. Lennox Prods, Inc., 268 F.R.D. 330, 341 (N.D.
5
Cal. 2010) (finding that defendants did not meet their burden of demonstrating material
6
7 differences in states consumer protection laws where they showed differences involving
8 reliance, scienter, damages, and other elements); Pokorny v. Quistar, Inc., 601 F3d. 987,995 (9th
9 Cir. 2010). Defendants attempt to make a mini choice of law analysis is insufficient to warrant
10
dismissal at this stage. First, while Defendants highlight several areas of law where differences
11
may exist, they fail to demonstrate that these differences are material as to bar certification.
12
Keilholtz v. Lennox Prods, Inc., 268 F.R.D. at 341 (variations in states laws not material because
13
they did not significantly alter the central issue or the manner of proof in the case).
14
15 Second, courts discussing conflict of laws have noted that while variations in statutes of
16 limitations must be considered, they will not necessarily defeat predominance. Cameron v. E.M.
17 Adams & Co., 547 F.2d 473, 478 (9th Cir.1976) (The existence of a statute of limitations issue
18
does not compel a finding that individual issues predominate over common ones. Given a
19
sufficient nucleus of common questions, the presence of the individual issue of compliance with
20
7
the statute of limitations has not prevented certification of class actions in securities cases.).
21
22 7
See also Waste Management Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.2000) (Although a necessity
23 for individualized statute-of-limitations determinations invariably weighs against class certification under Rule
23(b)(3), we reject any per se rule that treats the presence of such issues as an automatic disqualifier. In other words,
24 the mere fact that such concerns may arise and may affect different class members differently does not compel a
finding that individual issues predominate over common ones. As long as a sufficient constellation of common
25 issues binds class members together, variations in the sources and application of statutes of limitations will not
automatically foreclose class certification under Rule 23(b)(3)); Tait v. BSH Home Appliances Corp., 289 F.R.D.
26 466, 486 (C.D. Cal. 2012) ([C]ourts have been nearly unanimous ... in holding that possible differences in the
application of a statute of limitations to individual class members, including the named plaintiffs, does not preclude
certification of a class action. (internal quotation marks and citation omitted)); Keegan v. Am. Honda Motor Co.,

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1 Similarly, Defendants also overstate the issues of causation and reliance and misstate the
2 law. Reliance and causation are required in some form under all consumer protection laws.
3
However, in cases alleging deceptive labeling or advertising such as this one, courts have found
4
that when all members of the putative class have been exposed to the identical misleading
5
statements, causation and reliance are susceptible to class wide proof. Rikos v. Procter &
6
7 Gamble Co., 799 F.3d 497 (2015) (certifying five single state classes of consumers in a false
8 advertising case); In re ConAgra Foods, Inc. No. CV 11-05379 MMM, 2015 WL 1062756 at
9 *46 (C.D.Cal. Feb. 23, 2015) (finding predominance on the issues of causation and reliance
10
because it is undisputed that ConAgra made the same alleged misrepresentation on each bottle
11
of Wesson Oils purchased by class members). In this case, Plaintiff alleges that all class
12
members have been exposed to the same labels (i.e., the false representations on the outside of
13
the Sets) and that the labels are likely to deceive class members in the same manner. Plaintiff and
14
15 class members purchased the Sets because they were conspicuously marketed as a one-of-a-kind
16 collection of all Bond films to date. Cf. Rikos v. Procter & Gamble Co., 799 F.3d at 512.
17 Therefore, issues of reliance and causation are not likely to play a significant role in this case.
18
Defendants also contend that states laws differ significantly when it comes to recovery.
19
Motion, p. 17. They, however, do not show beyond their conclusory statement and the
20
enumeration of some of the applicable states laws how material these differences are and
21
22 whether they present a true conflict. In any event, these issues do not constitute a true conflict
23 that would prevent nationwide class certification, much less certification of discrete classes.
24 Keilholtz, 268 F.R.D. at 341 (rejecting same argument). Lastly, Defendants also raise a series of
25 possible defenses they may bring to Plaintiffs claim that may create issues for class treatment.
26
284 F.R.D. 504, 545 (C.D. Cal. 2012) (certifying a consumer protection class, with three sub-classes, so that
predominance can be assured).

17685-1/ASK/18016-1/ASK/762889
1 Courts traditionally have been reluctant to deny class action status under Rule 23(b((3) simply
2 because affirmative defenses may be available against individual class members. Rodman v.
3
Safeway, Inc. 2015 WL 2265972, at *3 (N.D. Cal. May 14, 2015) (quoting Smilow v. Sw. Bell
4
Mobile Sys., Inc., 323 F.3d 32, 39 (1st Cir. 2003)). In addition, these issues are improper for
5
determination at this stage of the proceedings. Defendants have not even filed an answer so that
6
7 Plaintiff might know what defenses they may assert..
8 This case is in its infancy. Without discovery from Defendants, this Court does not have
9 a record to make the required fact intensive determination. In re Clorox Consumer

10
Litigation, 894 F.Supp.2d 1224, 1237 (N.D. Cal.2012). Contrary to what Defendants state, this is
11
not a case in which the issues are plain enough from the pleadings to determine if the interests
12
of the absent parties are fairly encompassed within the named plaintiffs claim. Seifi v.
13
Mercedes-Benz USA, LLC 2013 WL 2285339 at *9 (N.D. Cal. May 23, 2013)As an alternative
14
15 to a nationwide class action, Plaintiff has suggested a smaller multi-state class that would only
16 include those states where, after discovery and a thorough conflict of law analysis have been
17 conducted, no material conflict of law would exist. Currently, it is unclear which state laws
18
would be involved in such a case, or what claims would ultimately remain after the completion
19
of class discovery. Therefore, it would be more appropriate for the Court to address a conflicts of
20
law analysis during the class certification stage, after class discovery. Rios v. State Farm Fire &
21
22 Cas. Co., 469 F. Supp. 2d 727, 74142 (S.D. Iowa 2007).
23 B. The Class Is Not Overbroad.
24 Defendants final argument in support of their motion to strike the class allegations,
25 namely that the class is overbroad, is also unavailing. An over-inclusive class definition need
26 not defeat certification entirely. Where the court determines that the class is overbroad, the court

17685-1/ASK/18016-1/ASK/762889
1 has the discretion to narrow the class to bring it within the requirement of Rule 23. In re NJOY,
2 Inc. Consumer Class Action Litigation, 120 F. Supp. 3d 1050, 1093 (C.D. Cal. 2015) (internal
3
citations omitted). Further, the inclusion of uninjured class members does not preclude class
4
certification. E.g., Rodman, 2014 WL 988992, at *15 (collecting cases). Finally, Defendants cite
5
an improbable litany of reasons why the class might be overbroad customers who read the list
6
7 of movies in the Sets and understood the set or Sets did not contain the missing movies; James
8 Bond aficionados who knew the real deal; etc. But courts from across the country have
9 regularly rejected such arguments. E.g., Ries v. Arizona Beverages USA LLC , 287 F.R.D. 523,
10
536 (N.D. Cal. 2012). Moreover, finding a class overboard for these reasons would prevent class
11
certification in any false advertising/labeling case.
12
In sum, adopting Defendants arguments and striking the class allegations now would in
13
effect be ruling that nationwide or multi-state class action suits could never exist because of the
14
15 variation in each state's substantive laws. Rios v. State Farm Fire & Casualty Co., 469
16 F.Supp.2d 727, 740 (S.D. Iowa 2007) As the Southern District of Iowa has pointed out, the
17 United States Supreme Court has instructed that multi-state, and even nationwide class actions
18
can be, and are, maintained in many instances. Phillips Petroleum Co. v. Shutts, 472 U.S. 797
19
(1985).
20
C. If The Court Is Inclined To Grant Defendants Motion In Any Respect, Plaintiff
21 Respectfully Requests Leave To Amend her Complaint.
22
If a complaint is dismissed, leave to amend should be granted unless the court
23
determines that the allegation of other facts consistent with the challenged pleading could not
24
possibly cure the deficiency. Schreiber Distrib. Co. v. Serv.-Well Furniture Co., 806 F.2d 1393,
25
26 1401 (9th Cir. 1986). Indeed, leave to amend is only properly denied where the amendment

17685-1/ASK/18016-1/ASK/762889
1 would be futile. DeSoto v. Yellow Freight Sys., 957 F.2d. 655,658 (9th Cir. 1992). Should this
2 Court find the allegations in Plaintiffs Complaint are insufficient to state a claim, Plaintiff
3
respectfully requests leave to amend her Complaint.
4
VI. CONCLUSION
5
For the foregoing reasons, this Court should deny Defendants Motion in its entirety.
6
7 DATED this 15th day of May, 2017.

8
EISENHOWER CARLSON PLLC
9
10
By: /s/ Alexander S. Kleinberg
11 Alexander S. Kleinberg, WSBA # 34449
akleinberg@eisenhowerlaw.com
12 1201 Pacific Avenue, Suite 1200
Tacoma, Washington 98402
13 Telephone: (253) 572-4500
Facsimile: (253) 272-5732
14 _________________________________
ALAN J. STATMAN, OH SBN 0012045
15 (Admitted Pro Hac Vice)
ajstatman@statmanharris.com
16 SYLVIE DERRIEN, OH SBN 0072579
(Admitted Pro Hac Vice)
17 sderrien@statmanharris.com
STATMAN HARRIS & EYRICH, LLC
18 3700 Carew Tower
441 Vine Street
19 Cincinnati, OH 45202
Tel: 513.621.2666
20 Fax:513.621.4896
21 Attorneys for Plaintiff Mary L. Johnson
22
23
24
25
26

17685-1/ASK/18016-1/ASK/762889
1 CERTIFICATE OF SERVICE
2 I certify that on the date indicated below I caused a copy of the foregoing document to be
3 filed with the Clerk of the Court via the CM/ECF system. In accordance with their ECF
4 registration agreement and the Courts rules, the Clerk of the Court will send e-mail notification
5 of such filing to the attorneys of record.
6 I affirm under penalty of perjury under the laws of the United States and the State of
7 Washington that the foregoing is true and correct to the best of my knowledge.
8 DATED this 15th day of May, 2017, at Tacoma, Washington.
9
/s/ Cathy Riccobuono__________
10 CATHY RICCOBUONO
11
12
13
14
15
16
17
18
19
20
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Johnson Reply To MGM Motion To Dismiss

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Case 2:17-cv-00541-RSM Document 27 Filed 05/15/17 Page 1 of 33

1 THE HONORABLE RICARDO S. MARTINEZ

6 IN THE UNITED STATES DISTRICT COURT

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

8 A. Defendants Violated The Washington Consumer Protection Act...4

9 1. The Packaging Viewed As a Whole is Deceiving...5

12 3. The Statements All And Every Are Actionable Statements........11

15 C. Plaintiff Has Also Stated a Claim For Breach Of The Implied

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

4 Ackerman v. The Coca-Cola Co.,

12 Bias v. Wells Fargo Bank, N.A.,

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

1 TABLE OF AUTHORITIES (contd.)

3 Franklin v. Govt. Emp. Ins. Co.,

8 Hayes v. Rule, No. 1:03 CV 1196,

13 Klay v. Humana, Inc.,

23 In re Rust-Oleum Restore Marketing, Sales Practices and Products Liability Litigation,

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

1 TABLE OF AUTHORITIES (contd.)

3 In re WalMart Stores, Inc. Wage and Hour Litigation,

8 Keilholtz v. Lennox Prods, Inc.,

13 McKinnis v. Kellogg USA,

15 McKinniss v. Sunny Delight Beverages Co.,

20 Pilgrim v. Universal Health Card, LLC,

22 Pokorny v. Quistar, Inc.,

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

1 TABLE OF AUTHORITIES (contd.)

3 Rikos v. Procter & Gamble Co.,

8 Rodman v. Safeway, Inc.,

13 Schwartz v. Lights of Am.,

15 Smilow v. Sw. Bell Mobile Sys., Inc.,

20 Sw. Sunsites, Inc. v. Fed. Trade Comm'n,

22 T-Mobile USA, Inc. v. Huawei Device USA, Inc.,

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

1 TABLE OF AUTHORITIES (contd.)

4 Wal-Mart Stores, Inc. v. Dukes,

9 Wyler Summit P'ship v. Turner Broad. Sys.,

12 Berschauer Phillips Const. Co. v. Concrete Sci. Servs. of Seattle, L.L.C.,

26 Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp.,

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

1 TABLE OF AUTHORITIES (contd.)

7 FEDERAL COURT RULES

8 Fed. R. Civ. P. 12(f) ...................................................................................................................... 17

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

22 Defendants argument in support of their request to strike the class allegations is

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

23 allegations stricken is premature and premised on a mischaracterization of applicable law.

24 Regardless, both requests should be denied.

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

1 II. FACTUAL BACKGROUND

24 Defendants as James Bond movies. Cplt. 41-46.

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

16 A. Defendants Violated The Washington Consumer Protection Act.

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

23 close to $20 billion?

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

16 Company, 2014 WL 17211193, at *11 (N.D. Cal. Jan. 15, 2014).