Case 1:15-cv-00373-JEI-AMD Document 13-1 Filed 04/09/15 Page 1 of 25 PageID: 83

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARTCHELA POPOVA MLADENOV,

MLADEN MLADENOV, CHAN M. MAO,
on behalf of themselves and those similarly
situated,

(Electronically Filed)

Plaintiffs, CIVIL ACTION

v.
Civil Action No. 4789-14
WEGMANS FOOD MARKETS, INC.,
Defendant.

DEFENDANT WEGMANS FOOD MARKETS, INC.S MEMORANDUM OF LAW IN

SUPPORT OF MOTION TO DISMISS THE AMENDED COMPLAINT
PEPPER HAMILTON LLP

(A Pennsylvania Limited Liability Partnership)

Suite 400
301 Carnegie Center
Princeton, NJ 08543-5276
Ph: (609) 452-0808
Fx: (609) 452-1147

Attorneys for Defendant Wegmans Food

Markets, Inc.
On the brief:
Matthew V. DelDuca
Angelo A. Stio III

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TABLE OF CONTENTS
Page

I.

INTRODUCTION ..................................................................................................................... 1

II.

STATEMENT OF FACTS ........................................................................................................ 3

III.

LEGAL ARGUMENT .............................................................................................................. 5

A.

IV.

THE FIRST COUNT OF THE AMENDED COMPLAINT SHOULD BE

DISMISSED BECAUSE PLAINTIFFS FAIL TO ADEQUATELY
PLEAD A VIOLATION OF THE NEW JERSEY CONSUMER FRAUD
ACT .............................................................................................................................. 5
1.

The CFA Claim Must Be Dismissed because Plaintiffs Fail to Plead

Consumer Fraud with Heightened Particularity. .............................................. 6

2.

The CFA Claim Must Be Dismissed because Plaintiffs Fail to Allege

the Essential Elements of a CFA Claim. .......................................................... 7

3.

The CFA Claim Fails as a Matter of Law because Plaintiffs Fail to

Allege the Essential Element of an Ascertainable Loss. .................................. 8

4.

The CFA Claim Fails as a Matter of Law Because Plaintiffs Fail to

Allege the Essential Element of a Causal Nexus Between Wegmans
Conduct and any Ascertainable Loss. ............................................................ 10

B.

THE SECOND COUNT OF THE AMENDED COMPLAINT SHOULD BE

DISMISSED BECAUSE PLAINTIFFS FAIL TO SUFFICIENTLY
ALLEGE BREACH OF AN EXPRESS WARRANTY ............................................. 12

C.

PLAINTIFFS CLAIM FOR A DECLARATORY JUDGMENT IN THE

THIRD COUNT SHOULD BE DISMISSED BECAUSE NO ACTIVE
CASE IN CONTROVERSY EXISTS AND EVEN IF IT DID PLAINTIFFS
HAVE OTHER REMEDIES AVAILABLE .............................................................. 14

D.

PLAINTIFFS CLAIM FOR AN INJUNCTION IN THE THIRD COUNT

SHOULD BE DISMISSED BECAUSE PLAINTIFFS FAIL TO PLEAD
THE ELEMENTS OF INJUNCTIVE RELIEF .......................................................... 16

E.

THE FOURTH COUNT OF THE AMENDED COMPLAINT SHOULD BE

DISMISSED BECAUSE PLAINTIFFS FAIL TO ALLEGE THEIR
TCCWNA CLAIM IS BASED ON AN ESTABLISHED LEGAL RIGHT .............. 17

F.

ALL CLAIMS PLAINTIFFS SEEK TO ASSERT ON BEHALF OF THE

SUBCLASS MUST BE DISMISSED BECAUSE PLAINTIFFS LACK
STANDING TO PURSUE THOSE CLAIMS............................................................ 19

CONCLUSION ....................................................................................................................... 20

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TABLE OF AUTHORITIES
Page(s)

CASES

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937)....................................................................15

Arcand v. Brother Intern. Corp., 673 F.Supp.2d 282 (D.N.J. 2009) .........................................6, 10
Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) .......................................................................................14
ATD-American Co. v. Krueger Int'l, Inc., No. 12-00032, 2012 U.S. Dist. LEXIS 55650
(E.D. Pa. Apr. 19, 2012) ..........................................................................................................16
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ...................................................................14
Bennett v. Correctional Medical Services, Inc., 2008 U.S. Dist. LEXIS 39020 (D.N.J.
May 14, 2008) ..........................................................................................................................12
Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 964 A.2d 741 (2009) .....................................7, 10
Cent. Regl Emples. Benefit Fund v. Cephalon, Inc., 2010 U.S. Dist. LEXIS 29677
(D.N.J. Mar. 29, 2010) .............................................................................................................18
Cipollone v. Liggett Grp., Inc., 893 F.2d 541 (3d Cir. 1990) ........................................................13
Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98 (1971) ....................................15
Dewey v. Volkswagen AG, 558 F. Supp. 2d 505 (D.N.J. 2008) ...............................................10, 11
DuPree v. U.S., 559 F.2d 1151 (9th Cir. 1977) .............................................................................19
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (U.S. 2006) ....................................................16
Ensey v. Gov't Emplrs. Ins. Co., 2013 U.S. Dist. LEXIS 159373 (D.N.J. Nov. 7, 2013) .............18
Fancaster, Inc. v. Comcast Corp., 832 F. Supp. 2d 380 (D.N.J. 2011) .........................................16
Fleisher v. Fiber Composites, LLC, No. 12-1326, 2012 U.S. Dist. LEXIS 157343
(E.D.Pa. Nov. 2, 2012) .................................................................................................10, 12, 13
In re Franklin Mutual Funds Fee Litigation, 388 F.Supp.2d 451 (D.N.J. 2005) ..........................12
Franulovic v. Coca-Cola Co., No. 07-539/07-828 2007 U.S. Dist. LEXIS 79732 (D.N.J.
Oct. 25, 2007) ............................................................................................................................8
Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007) .........................................................5, 6, 7
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Fust v. Einstein Moomjy, Inc., 182 N.J. 1 (2004) ............................................................................8

Galerie Gmurzynska v. Hutton, 257 F. Supp. 2d 621 (S.D.N.Y. 2003) ........................................16
Glover v. State Farm Fire & Cas. Co., 984 F.2d 259 (8th Cir. 1993) ...........................................15
Gotthelf v. Toyota Motor Sales, U.S.A., Inc., No. 10-4429, 2012 U.S. Dist. LEXIS 62045
(D.N.J. May 3, 2012) .........................................................................................................10, 11
GSC Partner CDO Fund v. Washington, 368 F.3d 228 (3d Cir. 2004) ...........................................6
Healthpoint, Ltd. v. Ethex Corp., 273 F. Supp. 2d 817 (W.D. Tex. 2001) ....................................18
Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124 (3d Cir. 2000) .........................12
Independent Realty Co. v. Twp. of North Bergen, 376 N.J. Super. 295 (App. Div. 2005) ............15
Motley v. Homecomings Fin., LLC, 557 F. Supp. 2d 1005 (D. Minn. 2008) ................................15
Mutual Pharmaceuticals Co. v. Ivax Pharmaceuticals, Inc., 459 F. Supp. 2d 925 (C.D.
Cal. 2006).................................................................................................................................18
New Jersey Tpk. Auth. v. Parsons, 3 N.J. 235 (1949) ....................................................................15
Parker v. Howmedica Osteonics Corp., No. 07-02400, 2008 U.S. Dist. LEXIS 2570
(D.N.J. Jan. 14, 2008) ......................................................................................................8, 9, 10
Payan v. GreenPoint Mortg. Funding, Inc., 681 F.Supp.2d 564 (D.N.J.2010) ...............................7
Perkins v. AT&T Mobility, LLC, No. 10-6429, 2011 U.S. Dist. LEXIS 16614 (D.N.J. Feb.
17, 2011) ..................................................................................................................................17
In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283 (3d Cir.
1998) ........................................................................................................................................19
In re Riddell Concussion Reduction Litig., 2015 U.S. Dist. LEXIS 4996 (D.N.J. Jan. 15,
2015) ....................................................................................................................................7, 10
Rivera v. Wash. Mut. Bank, 637 F. Supp. 2d 256 (D.N.J. 2009) ...................................................17
Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644 (3d Cir. 1998) ....................................6
Sauro v. L.A. Fitness Int'l, LLC, No. 12-3682, 2013 U.S. Dist. LEXIS 58144 (D.N.J. Feb.
13, 2013) ............................................................................................................................17, 18
In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235 (3d
Cir. 2012) .................................................................................................................................19
Skypala v. Mortg. Elec. Registration Sys., 655 F. Supp. 2d 451 (D.N.J. 2009) ............................17
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Smajlag v. Campbell Soup Co., 782 F. Supp. 2d 84 (D.N.J. 2011) ...............................................12

Solo v. Bed Bath & Beyond, Inc., No. 06-1908, 2007 U.S. Dist. LEXIS 31088 (D.N.J.
Apr. 26, 2007) ..................................................................................................................8, 9, 10
Sosna v. Iowa, 419 U.S. 393, 403, 95 S. Ct. 553 (1975) ...............................................................19
Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d 643 (3d Cir. 1990) ........................................14
Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234 (2005) .....................................................8
In re Toshiba Am. HD DVD Mktg. & Sales Practices Litig., Civ. 08-939 (DRD), 2009
U.S. Dist. LEXIS 82833 (D.N.J. Sept. 11, 2009) ......................................................................7
Viking Yacht Co. v. Composites One LLC, 496 F.Supp.2d 462 (D.N.J. 2007)..............................12
Watkins v. DineEquity, Inc., 591 Fed. Appx. 132 (3d Cir. 2014) ..................................................17
Wellness Publ. v. Barefoot, 2008 U.S. Dist. LEXIS 1514 (D.N.J. Jan. 8, 2008)...........................18
Wells ex rel. J.W. v. Allergan, Inc., 2013 U.S. Dist. LEXIS 13191 (W.D. Okla. Jan. 31,
2013) ........................................................................................................................................18
Winer Family Trust v. Queen, 503 F.3d 319 (3d Cir. 2007) ..........................................................19
Won Kyung Hwang v. Ohso Clean, Inc., 2013 U.S. Dist. LEXIS 54002 (N.D. Cal. Apr.
16, 2013) ..................................................................................................................................18
Wyatt, Virgin Islands, Inc. v. Govt of the Virgin Islands, 385 F.3d 801 (3d Cir. 2004)...............15
Zimmerman v. HBO Affiliates, 834 F.2d 1163 (3d Cir. 1987) .......................................................19

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I.

INTRODUCTION
Plaintiffs are pursuing this putative class action against Wegmans Food Markets,

Inc. (Wegmans) based on allegations that Wegmans utilized false and misleading advertising
in the sale of bread and bakery products. Plaintiffs claim Wegmans utilized a sign or signs
stating STORE BAKED ROLLS and website language stating Bread, fresh baked and InStore Baked and these signs and language mislead consumers into believing that certain of
Wegmans bread and bakery products not just rolls or bread were freshly baked or made
from scratch. Plaintiffs claim that the use of this language was false and misleading and
constituted a violation of the New Jersey Consumer Fraud Act (CFA), a violation of the Truth
In Consumer Contract Warranty and Notice Act (TCCWNA) and a breach of certain express
warranties that Wegmans allegedly made.
Plaintiffs originally filed a Complaint on December 14, 2014, but then filed an
Amended Complaint on March 12, 2015 in order to add allegations related to Wegmans website
and to assert a TCCWNA claim. Plaintiffs amendments to add new language and a new claim
do not save the Amended Complaint from dismissal. As set forth below, the Amended
Complaint should be dismissed on the following four grounds. First, Plaintiffs CFA claim in
the First Count of the Amended Complaint must be dismissed under Rule 12(b)(6) because
Plaintiffs have not pled the essential elements of an ascertainable loss or causal relationship to
give rise to a cognizable CFA claim. Also, Plaintiffs do not even attempt to comply with Rule
9(b) by pleading their CFA claim with the requisite particularity necessary to put Wegmans on
notice of the factual basis for the CFA claim. Numerous courts have dismissed undeveloped
CFA claims like the one that Plaintiffs seek to assert here. The result in this case should be no
different.

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Second, Plaintiffs breach of warranty claim in the Second Count of the Amended
Complaint must be dismissed because the allegations are implausible and fail to comply with
Rule 8. As explained in this brief, Plaintiffs do not sufficiently allege that they were exposed to
either a sign stating STORE BAKED ROLLS or Wegmans website language stating Bread,
fresh baked or In-Store Baked, such that these alleged representations became a warranty
with regard to all bread and bakery products sold in Wegmans stores. Moreover, Plaintiffs
failure to allege that they actually purchased products that were not otherwise store baked,
renders the breach of express warranty claims unsustainable. Specifically, in the absence of such
allegations Plaintiffs cannot show that any product they purchased failed to comply with a
purported warranty.
Third, Plaintiffs Declaratory Judgment Act claim in the Third Count of the
Amended Complaint is subject to dismissal because no active case or controversy exists to give
rise to such a claim. Moreover, even if an active case or controversy existed and was pled
properly, the claim still must be dismissed because the relief sought is duplicative of the relief
available under the CFA, the breach of express warranty claim, and the TCCWNA claim.
Accordingly, because the relief sought in the Third Count is duplicative of relief available in
other counts of the Amended Complaint, the Third Count cannot survive this motion.
Fourth, in the Fourth Count of the Amended Complaint Plaintiffs assert a claim
under the TCCWNA on the theory that Wegmans violated their clearly established legal rights
under the CFA. Since the CFA claim cannot be sustained, Plaintiffs have not adequately alleged
the violation of a clearly established legal right to give rise to a cognizable TCCWNA claim and
therefore this count must be dismissed.

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Finally, in addition to the dismissal of all their individual claims, this Court can
dismiss and/or strike all claims Plaintiffs seek to assert on behalf of the subclass of consumers
that are alleged in paragraph 26 of the Amended Complaint who purchased bread and/or bakery
products . . . using a credit card [or] debit card on or after December 14, 2008. Nowhere in the
Amended Complaint do any of the named Plaintiffs allege they purchased bread and/or bakery
products from Wegmans using a credit card or debit card. Accordingly, because Plaintiffs do not
have any claim related to a credit or debit card purchase, they lack standing to pursue such
claims on behalf of a class.
II.

STATEMENT OF FACTS 1
Plaintiffs Martchela Popova Mladenov, Mladen Mladenov, and Chan M. Mao

(Plaintiffs) purport to be residents of Burlington County and Camden County, New Jersey and
are pursuing this putative class action against Wegmans on behalf of themselves and a class
defined as:
All individuals and entities within the State of New Jersey who
purchased bread and/or bakery products advertised and sold as
store baked and/or fresh baked in a Wegmans store located in
New Jersey on or after December 14, 2008.
(Amd. Cmpl. 25).
Plaintiffs also contend that they also are pursuing this class action against
Wegmans on behalf of a sub-class defined as:

This memorandum of law sets forth the facts as asserted in the Amended Complaint. For purposes of this
motion only, Wegmans accepts the facts as true. In accepting these facts as true, Wegmans is not admitting the truth
of any of Plaintiffs allegations and reserves the right to deny the truth of the factual allegations.

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All individuals and entities within New Jersey who purchased

bread and/or bakery products advertised and sold as store baked
and/or fresh baked in a Wegmans store located in New Jersey,
using a credit card, debit card on or after December 14, 2008,
(Amd. Cmpl. 26). 2
In the Amended Complaint, Plaintiffs claim Wegmans is in the business of
manufacturing, distributing, marketing, advertising, and selling of various bread and bakery
goods, including but not limited to bread, bagels, croissants, cookies, cakes, pies, muffins and
rolls. (Amd. Cmpl., 11). Plaintiffs claim further that Wegmans has seven stores in New
Jersey and these stores display in-store signs such as STORE BAKED ROLLS and that
Wegmans maintains a website that advertises and lists various types of bread and bakery
products under the category Bread, Fresh Baked or In-Store Baked. (Amd. Cmp. 13, 14).
Plaintiffs contend these in-store signs and Wegmans website suggest that the products are
made in store and/or they are fresh. (Amd. Cmpl. 14). Plaintiffs claim further these alleged
signs and this advertising harms consumers because it falsely advertises the product as store
baked and/or fresh and/or made from scratch. (Amd. Cmp. 18).
Despite acknowledging throughout the Amended Complaint that only certain
(Amd. Cmp. 30a, 30b, 30e, 30g, 68), some (Amd. Cmp. 46) or many bakery products
(Amd. Cmp. 45) are not baked in store, Plaintiffs fail to allege they actually purchased one of
the products not baked in store. In fact, Plaintiffs fail to identify any specific products that they
ever purchased from Wegmans. To make matters worse, Plaintiffs fail to allege they made any
purchase from Wegmans using a credit card or debit card, or that they actually saw a Wegmans

The classes Plaintiffs seek to represent appear to include anyone who purchased loaves of bread and/or
bakery products irrespective of whether those products relate to the challenged sign and irrespective of whether the
products were baked in store.

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sign stating STORE BAKED ROLLS or viewed Wegmans website before they allegedly
purchased any bread or bakery product from Wegmans.
Undeterred by the absence of well-pled allegations, Plaintiffs are pursuing claims
for violations of the CFA (First Count) and TCCWNA (Fourth Count), breach of express
warranties (Second Count), and for a declaratory judgment (Third Count) on behalf of a class
and subclass of New Jersey consumers. Among other things, Plaintiffs are seeking to recover a
refund of all money spent on the purchase of the bread and bakery products, and/or damages[]
equal to the amount of money they spent for the Bakery Products, and/or statutory damages
under the CFA and TCCWNA. (Amd. Cmp. 50, 79, 80).
Wegmans motion to dismiss the Amended Complaint now follows.
III.

LEGAL ARGUMENT
A.

THE FIRST COUNT OF THE AMENDED COMPLAINT SHOULD BE

DISMISSED BECAUSE PLAINTIFFS FAIL TO ADEQUATELY PLEAD A
VIOLATION OF THE NEW JERSEY CONSUMER FRAUD ACT
In the First Count of the Amended Complaint Plaintiffs are pursuing a CFA claim

purportedly on the basis that Wegmans signs and certain product descriptions on Wegmans
website suggest that [Bakery Products] were made in store. (Amd. Cmp. 44). Plaintiffs
contend the posted signs and website product descriptions mislead consumers and lead them to
believe that Defendants products were made in store when in fact many of Defendants products
are made elsewhere and that they suffered an ascertainable loss equal to the amount of money
they spent on the bread and bakery products. (Amd. Cmp. 45, 48). The generalized
allegations Plaintiffs rely on for the CFA claim fall well short of meeting the heightened
pleading standards under Rule 9(b) and fail to state a CFA claim under Rule 12(b)(6).

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1.

The CFA Claim Must Be Dismissed because Plaintiffs Fail to Plead

Consumer Fraud with Heightened Particularity.

It is well-established that claims under the CFA must meet the heightened
pleading requirements of Rule 9(b). See, e.g., Frederico v. Home Depot, 507 F.3d 188, 200 (3d
Cir. 2007); Arcand v. Brother Intern. Corp., 673 F. Supp. 2d 282 (D.N.J. 2009). To satisfy this
standard a plaintiff
must state the circumstances of the alleged fraud with sufficient
particularity to place the defendant on notice of the 'precise
misconduct with which [it is] charged.' To satisfy this standard, the
plaintiff must plead or allege the date, time and place of the
alleged fraud or otherwise inject precision or some measure of
substantiation into a fraud allegation. Frederico, 507 F.3d at 200.
In other words, at a minimum, a plaintiff must support allegations of consumer
fraud with all the essential factual background that would accompany the first paragraph of any
newspaper story -- that is, the who, what, when, where and how of the events at issue. GSC
Partner CDO Fund v. Washington, 368 F.3d 228, 239 (3d Cir. 2004). Indeed, a complaint
alleging consumer fraud must do more than assert generalized facts; it must allege facts specific
to each plaintiff. Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 658-59 (3d Cir.
1998), abrogated on other grounds, 528 U.S. 549 (2000). And, when facts specific to a plaintiff
are not plead, the complaint is subject to dismissal. Id. (upholding the dismissal of a Complaint
that did not allege what actually happened to either of the plaintiffs).
Here, the CFA claim does not come close to satisfying the heightened pleading
requirements under Rule 9(b) and must be dismissed. Nowhere in the Complaint do Plaintiffs
allege specifics as to what happened to them. The Amended Complaint does not allege specific
products that were purchased, when they were purchased, how they were purchased, the location
from which purchases were allegedly made, the specific amounts that were paid for the products,
or even whether any Plaintiff paid a specific premium for the alleged products they purportedly
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purchased. Moreover, the Amended Complaint fails to allege that any Plaintiff read a sign or
viewed a website description before a purchase occurred. Instead, the Amended Complaint
contains a hodgepodge of generalized allegations about certain products that may or may not be
store baked and may or may not have been purchased by them. These generalized facts do not
put Wegmans on notice of the alleged fraud at issue and fail to satisfy the heightened pleading
that Rule 9(b) requires. Indeed, the allegations in this case about alleged misrepresentations and
an alleged price premium that was paid for products are no different than the allegations in
In re Riddell Concussion Reduction Litig., No. 13-7585, 2015 U.S. Dist. LEXIS 4996 (D.N.J.
Jan. 15, 2015) and In re Toshiba Am. HD DVD Mktg. & Sales Practices Litig., No. 08-939, 2009
U.S. Dist. LEXIS 82833 (D.N.J. Sept. 11, 2009), where Courts dismissed CFA class actions on
the basis that the Plaintiffs failed to provide sufficient details concerning their product purchases.
Thus, for this reason alone, the First Count of the Amended Complaint must be dismissed under
Rules 9(b).
2.

The CFA Claim Must Be Dismissed because Plaintiffs Fail to Allege the
Essential Elements of a CFA Claim.

To state a prima facie case under the CFA, a plaintiff must plead three elements:
(1) unlawful conduct by the defendant; (2) an ascertainable loss; and (3) a causal connection
between the defendants unlawful conduct and the plaintiffs ascertainable loss. Payan v.
GreenPoint Mortg. Funding, Inc., 681 F. Supp. 2d 564, 572 (D.N.J. 2010) (citing Bosland v.
Warnock Dodge, Inc., 197 N.J. 543, 964 A.2d 741, 749 (2009)). Unlawful practices under the
CFA fall into three general categories: affirmative acts, knowing omissions, and regulation
violations. Frederico v. Home Depot, 507 F.3d at 202 (3d Cir. 2007). Plaintiffs claim here only
relates to affirmative misrepresentations and the allegations are therefore tested as to whether the

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elements of a claim are adequately plead as to each of the named Plaintiffs. As set forth below,
they are not and the claim is subject to dismissal.
3.

The CFA Claim Fails as a Matter of Law because Plaintiffs Fail to Allege
the Essential Element of an Ascertainable Loss.

Plaintiffs CFA claim premised on misrepresentations fails and is subject to

dismissal because Plaintiffs fail to adequately plead the essential element of an ascertainable
loss. Under New Jersey law, it is well recognized that a CFA claim cannot proceed in the
absence of a showing of an actual loss. See Franulovic v. Coca-Cola Co., No. 07-539/07-828
2007 U.S. Dist. LEXIS 79732, at *19, *22, *24, *31 (D.N.J. Oct. 25, 2007) (dismissing
plaintiffs' respective CFA claims because one plaintiff only offered conclusory statements that
she and other consumers have suffered an ascertainable loss and the others Amended
Complaint was unclear [as to] what, if any, cognizable and calculable claim of loss due to the
alleged CFA violation' [plaintiffs] suffered); Solo v. Bed Bath & Beyond, Inc., No. 06-1908,
2007 U.S. Dist. LEXIS 31088, *10-11 (D.N.J. Apr. 26, 2007) (finding that plaintiff's Amended
Complaint failed to state a claim under the CFA because it did not plead specific facts setting
forth and defining the ascertainable loss suffered).
In order to state a cognizable CFA claim, courts require the plaintiff to identify
through particularized pleading an actual loss that is quantifiable or measurable and
calculated within a reasonable degree of certainty. Thiedemann v. Mercedes-Benz USA, LLC,
183 N.J. 234, 248 (2005). Moreover, courts have found that as a matter of law, the purchase
price of a product alone cannot represent the ascertainable loss. See Parker v. Howmedica
Osteonics Corp., No. 07-02400, 2008 U.S. Dist. LEXIS 2570, at *11-12 (D.N.J. Jan. 14, 2008);
Fust v. Einstein Moomjy, Inc., 182 N.J. 1, 13 (2004)(the purchase price neither represents the
true value of the carpet nor plaintiffs ascertainable loss.).

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Here, Plaintiffs allegations of ascertainable loss are insufficient to support a CFA

claim. Plaintiffs contend that their ascertainable loss is equal to the amount of money they
spent on breads and bakery products that they would not have purchased had the accurate
information been properly disclosed to them, (Amd. Cmp. 48), and Plaintiffs readily admit
they are seeking a refund, (Amd. Cmp. 50). In other words, Plaintiffs claim their
ascertainable loss is equal to the purchase price, which, as found in this Courts decision in
Parker, is insufficient to establish an ascertainable loss. Parker, 2008 U.S. Dist. LEXIS 2570 at
*11-12.
This Courts decision in Solo, 2007 U.S. Dist. LEXIS 31088 is directly on point
and further demonstrates that Plaintiffs CFA claim must be dismissed. In Solo, a plaintiff
sought to pursue a CFA claim on behalf of a proposed class of consumers that purchased multiply bed linens. Id. at *2-3. Plaintiff claimed that the defendant misrepresented in advertising
that the multi-ply linens had a 1000 Thread Count, when in actuality the linens only had a
thread count of 492. Id. at *9-10. Plaintiff claimed in his complaint that he and the proposed
class suffered an ascertainable loss in that they purchased linens that were of a lower quality and
less valuable than the linens they were promised. Id. The Court made short work of this
argument and dismissed the CFA claim finding that this broad and conclusory allegation was not
sufficient to demonstrate an ascertainable loss. Id. In making this decision, the Court noted:
Plaintiff fails to specifically allege that what he did received was of
lesser value than what was promised, i.e., that the sheets he
received were worth an amount of money less than the sheets he
was promised, or that he experienced a measurable out-of-pocket
loss because of his purchase. Therefore, Plaintiff has failed to set
forth either an out-of-pocket loss or a demonstration of loss in
value sufficient to satisfy the ascertainable loss requirement. Id. at
*10.

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Plaintiffs ascertainable loss allegations here are even more general than those in
Solo. Here, Plaintiffs only claim they paid a premium price without identifying the actual
price they paid or the purported premium they paid for products that allegedly did not conform to
the representations. Under Solo and other New Jersey cases, these conclusory allegations are
insufficient to allege an ascertainable loss to support a cognizable CFA claim. See, e.g., Parker,
2008 U.S. Dist. LEXIS 2570 at *11-12; Solo, 2007 U.S. Dist. LEXIS 31088 at *11; see also In
re Riddell Concussion Reduction Litig., 2015 U.S. Dist. LEXIS 4996 at *36 (general allegation
that Plaintiffs paid a premium insufficient to allege ascertainable loss).
4.

The CFA Claim Fails as a Matter of Law Because Plaintiffs Fail to Allege
the Essential Element of a Causal Nexus Between Wegmans Conduct and
any Ascertainable Loss.

The CFA claim also fails because Plaintiffs fail to allege the essential element of a
causal relationship or nexus between the Defendants unlawful conduct and the Plaintiffs
ascertainable loss to state a cognizable CFA claim. Bosland v. Warnock Dodge, Inc., 197 N.J.
543, 557 (2009); Fleisher v. Fiber Composites, LLC, No. 12-1326, 2012 U.S. Dist. LEXIS
157343, at *32 (E.D. Pa. Nov. 2, 2012). To properly plead a causal relationship or nexus, a
plaintiff must allege facts establishing a causal relationship with the particularity required by
Rule 9(b). Arcand v. Brother Intl Corp., 673 F. Supp. 2d 282, 303 (D.N.J. 2009). In this
regard, the New Jersey district court decisions in Dewey v. Volkswagen AG, 558 F. Supp. 2d 505
(D.N.J. 2008) and Gotthelf v. Toyota Motor Sales, U.S.A., Inc., No. 10-4429, 2012 U.S. Dist.
LEXIS 62045 (D.N.J. May 3, 2012) are instructive.
In Dewey, the court found that a plaintiff had not sufficiently pleaded a causal
relationship within Rule 9(b)s strictures because he only alleged misrepresentations and
injuries in the most general and conclusory terms. Dewey, 558 F. Supp. 2d at 526. The court
noted that the allegations made by the plaintiff were legal conclusions, not factual allegations
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that would, if true, establish a causal nexus because they did not allege when statements were
made or when the plaintiff was exposed to the statements. Id. at 526-27. The court noted that
the absence of this information rendered the plaintiff unable to properly plead a causal
relationship. Id. at 527.
In Gotthelf, the plaintiff alleged that Toyota violated the CFA when it marketed a
Prius vehicle with an HID Headlamp System as being superior to halogen bulbs but were
actually defective. Gotthelf, 2012 U.S. Dist. LEXIS 62045, at *3-5. The complaint in that case
did not specify where and when Toyota marketed the vehicles with the HID Headlamp System,
nor whether plaintiff actually saw the marketing materials before purchasing the Prius. Id. The
court dismissed that plaintiffs CFA claim because the complaint failed to cite to marketing
materials that Plaintiff himself viewed or when he may have viewed them. Id. at *55-56.
Similar to Gotthelf and Dewey, Plaintiffs have failed to plead the essential
element of a causal relationship between the alleged misrepresentations and the alleged
ascertainable loss. Although Plaintiffs contend that Wegmans utilized STORE BAKED ROLLS
signs and Wegmans website contained descriptions of certain bakery products and breads being
store baked or fresh baked, nowhere in the Amended Complaint do Plaintiffs allege that they
actually saw the signs or viewed the website prior to purchasing a product that was not baked in
store. Similarly, although Plaintiffs acknowledge throughout the Amended Complaint that that
only certain (Amd. Cmp. 30a, 30b, 30e, 30g, 68), some (Amd. Cmp. 46) or many
bakery products (Amd. Cmp. 45) are not made in store, the Amended Complaint does not
allege that members of their purported class actually purchased a bakery product or bread that
was not otherwise made in store. Indeed, nowhere in the definition of the purported class or

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subclass do Plaintiffs allege that the members even purchased a bakery or bread product that was
not otherwise store baked or fresh baked. (See Amd. Cmp. 25-26).
These omissions are fatal and demonstrate Plaintiffs have not pleaded the
essential element of a causal relationship to give them standing to pursue a CFA claim. 3
B.

THE SECOND COUNT OF THE AMENDED COMPLAINT SHOULD BE

DISMISSED BECAUSE PLAINTIFFS FAIL TO SUFFICIENTLY
ALLEGE BREACH OF AN EXPRESS WARRANTY
Plaintiffs breach of express warranty claim fails for the same reason the CFA

claim fails on the basis of a failure to plead a causal nexus -- namely, Plaintiffs fail to adequately
allege that they were aware of any alleged misrepresentations that formed the basis of a bargain
between Plaintiffs and Wegmans. Under New Jersey law a breach of warranty claim requires, at
a minimum, the following three elements: (a) an affirmation or promise about a description of
the product, (b) that became part of the basis of the bargain for the purchase, and (c) a product
that ultimately did not conform to the affirmation or promise. Smajlag v. Campbell Soup Co.,
782 F. Supp. 2d 84, 103 (D.N.J. 2011). In order for an affirmation or promise about a product
description to become part of the basis of the bargain, a plaintiff must become aware of the
affirmation or promise. Viking Yacht Co. v. Composites One LLC, 496 F. Supp. 2d 462, 469
(D.N.J. 2007).

The failure to allege a causal link between Wegmans alleged unlawful conduct and any injury also
demonstrates that Plaintiffs lack standing to pursue class claims. See Holmes v. Pension Plan of Bethlehem Steel
Corp., 213 F.3d 124, 135 (3d Cir. 2000) (stating that . . . a plaintiff who lacks the personalized, redressable injury
required for standing to assert claims on his own behalf would also lack standing to assert similar claims on behalf
of a class.); In re Franklin Mutual Funds Fee Litig., 388 F. Supp. 2d 451, 460-61 (D.N.J. 2005) (noting a named
plaintiff can bring suit against a party only the plaintiff personally suffered an injury and that injury is traceable to
that party. If a plaintiff cannot trace an injury to a defendant, the plaintiff lacks standing with regard to that
defendant.); Bennett v. Correctional Medical Services, Inc., No. 02-4993, 2008 U.S. Dist. LEXIS 39020, at *18
(D.N.J. May 14, 2008) (deciding whether proposed class representative had Article III standing before resolving
motion for class certification).

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On this point, the Court can turn to the Eastern District of Pennsylvanias decision
in Fleisher v. Fiber Composites, LLC, No. 12-1326, 2012 U.S. Dist. LEXIS 157343 (E.D. Pa.
Nov. 2, 2012) for guidance. There, plaintiffs sought to pursue a class action arising from a
defendants sale of purportedly defective deck materials. Id. at *2. Plaintiffs claimed, among
other things, that statements on the defendants website created an express warranty that formed
the basis of plaintiffs bargains in purchasing the deck materials. Id. at *4-5. Defendant filed a
motion to dismiss the express warranty claim arguing that the express warranty claims were
subject to dismissal because they never became a basis of the bargain between defendant and the
plaintiffs. Id. at *17.
The Court agreed and dismissed the express warranty claim under Rule 12(b)(6).
Id. at *19. It found that a warranty does not become part of the basis of the bargain unless
plaintiffs show that they read, heard, saw, or knew of the advertisement containing the
affirmation of fact or promise prior to the purchase of the product. Id. at *18 (quoting
Cipollone v. Liggett Grp., Inc., 893 F.2d 541, 567 (3d Cir. 1990) 4, revd on other grounds, 505
U.S. 504 (1992). Because plaintiffs failed to allege they ever read, heard, saw or knew of the
express warranties prior to purchasing products, the Court granted defendants motion and
dismissed the breach of express warranty claim. Id. at *18-19.
Similar to Fleisher, Plaintiffs do not allege that prior to purchasing a product they
read, heard, saw, or even knew about Wegmans store sign or website product description stating
bread or bakery products were store baked or fresh baked. Instead, Plaintiffs allege in
conclusory fashion that Wegmans store signs or website affirms that the bread or bakery
products were made in store and/or fresh, that [b]y operation of New Jersey law, these
4

Cipollone interprets New Jersey law.

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affirmations were incorporated into an identical warranty provided to each class member and
that Wegmans breached the express warranty because certain unidentified bread and/or bakery
products did not and could not conform to the affirmation. (Amd. Cmpl. 53, 54, 59, 60). The
failure to allege that Plaintiffs ever read, saw or knew about the alleged warranty dooms the
breach of express warranty claim.
Plaintiffs breach of warranty claim also fails and must be dismissed under Rule 8
because the allegations about the breach of an express warranty are not plausible. See Ashcroft v.
Iqbal, 566 U.S. 667, 677-80 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). In this regard, even if an alleged warranty existed that certain Wegmans bread and/or
bakery products are store baked or fresh baked, Plaintiffs do not adequately allege any
breach of this warranty under Iqbal and Twombly because the Amended Complaint fails to show
the Plaintiffs actually purchased a specific product that was otherwise not store baked or fresh
baked. In other words, on its face the Amended Complaint fails to allege that any bakery
product they purchased failed to conform to an alleged affirmation made by Wegmans. Thus, in
the absence of well-pled allegations of a breach of a warranty, the Second Count of the Amended
Complaint must be dismissed.
C.

PLAINTIFFS CLAIM FOR A DECLARATORY JUDGMENT IN THE

THIRD COUNT SHOULD BE DISMISSED BECAUSE NO ACTIVE CASE
IN CONTROVERSY EXISTS AND EVEN IF IT DID PLAINTIFFS HAVE
OTHER REMEDIES AVAILABLE
In the Third Count of their Amended Complaint, Plaintiffs seek to pursue a

declaration pursuant to the New Jersey Declaratory Judgment Act that certain signs or
descriptions that the breads or bakery products are baked in store are inaccurate. (Amd. Cmp.
64). This claim is subject to dismissal on the basis that there is no actual controversy between
the parties requiring this court to issue a declaratory judgment.

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It is well settled that courts confine the exercise of judicial power to actual cases
and controversies and courts will not render advisory opinions or function in the abstract.
Compare U.S. Const. art. III, 2 with N.J. Const. art. VI, 1; Step-Saver Data Sys., Inc. v. Wyse
Tech., 912 F.2d 643, 647 (3d Cir. 1990) (quoting 28 U.S.C. 2201) ([B]ecause the
Constitution prohibits federal courts from deciding issues in which there is no case[] or
controversy, U.S. Const. art. III, 2, declaratory judgments can be issued only when there is
an actual controversy.); see also Independent Realty Co. v. Twp. of North Bergen, 376 N.J.
Super. 295, 301 (App. Div. 2005) (citing Crescent Park Tenants Assn v. Realty Equities Corp.,
58 N.J. 98, 107 (1971); New Jersey Tpk. Auth. v. Parsons, 3 N.J. 235, 240 (1949)).
In order for courts to exercise their power, a controversy must be definite and
concrete, touching the legal relations of parties having adverse legal interests. It must be a real
and substantial controversy admitting of specific relief through a decree of a conclusive
character, as distinguished from an opinion advising what the law would be upon a hypothetical
state of facts. Wyatt, Virgin Islands, Inc. v. Govt of the Virgin Islands, 385 F.3d 801, 806 (3d
Cir. 2004) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937)).
Here, the Court should dismiss Plaintiffs claim for declaratory relief because
there is no actual controversy between the parties. Although Plaintiffs contend a
justifiable controversy is present in this case, (Amd. Cmp. 66), they fail to identify that
controversy in the Third Count and they cannot rely on the claims asserted in the First, Second,
and Fourth Counts of the Amended Complaint because, for the reasons stated above, those
claims are not legally cognizable. See, e.g., Glover v. State Farm Fire & Cas. Co., 984 F.2d
259, 260-61 (8th Cir. 1993) (affirming dismissal of declaratory judgment claim where plaintiff
did not plead cause of action under applicable statute as basis for declaratory relief and lacked

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standing to pursue alternative contractual grounds); Motley v. Homecomings Fin., LLC, 557 F.
Supp. 2d 1005, 1014 (D. Minn. 2008) (dismissing declaratory judgment claim seeking
declaration that conduct was unlawful and injunction enjoining such conduct where plaintiff
ultimately conceded these are merely remedies, not separate causes of action); Galerie
Gmurzynska v. Hutton, 257 F. Supp. 2d 621, 632 (S.D.N.Y. 2003) (dismissing declaratory
judgment claim and finding no actual case and controversy after remaining federal claims were
dismissed under Rule 12(b)(6)).
Similarly, even if Plaintiffs CFA, breach of express warranty, and TCCWNA
claims somehow survived the motion to dismiss, the declaratory judgment claim still can be
dismissed because the relief sought is duplicative of the other relief available that addresses
Plaintiffs injuries. Where, as is the case here, a plaintiff has an adequate remedy at law, district
courts routinely dismiss claims for declaratory relief. See, e.g., Fancaster, Inc. v. Comcast
Corp., 832 F. Supp. 2d 380, 427 (D.N.J. 2011) (dismissing claim for declaratory judgment
because such claim was essentially a restatement of its first and third counterclaims for fraud
and abandonment); ATD-American Co. v. Krueger Int'l, Inc., No. 12-00032, 2012 U.S. Dist.
LEXIS 55650 (E.D. Pa. Apr. 19, 2012) (dismissing claim for declaratory relief where it merely
duplicate[d] other claims for breach).
Thus, because there is no case and controversy present and because Plaintiffs
claims are duplicative of other claims in this case to the extent those claims survive the
declaratory judgment claim fails and must be dismissed.
D.

PLAINTIFFS CLAIM FOR AN INJUNCTION IN THE THIRD COUNT

SHOULD BE DISMISSED BECAUSE PLAINTIFFS FAIL TO PLEAD
THE ELEMENTS OF INJUNCTIVE RELIEF
Plaintiffs claim for injunctive relief found in paragraphs 67 and 68 of the

Amended Complaint is subject to dismissal under Rule 12(b)(6) because Plaintiffs do not come
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close to pleading the elements necessary to sustain a claim. In eBay Inc. v. MercExchange, LLC,
547 U.S. 388, 391 (2006), the Supreme Court required the following elements for entitlement to
an injunction: (i) irreparable harm, (ii) the inadequacy of money damages, (iii) the absence of
inequitable hardships, and (iv) that an injunction would not disserve the public interest.
Plaintiffs do not even attempt to plead any of these essential elements for entitlement to an
injunction and therefore their claim for injunctive relief fails as a matter of law and must be
dismissed.
E.

THE FOURTH COUNT OF THE AMENDED COMPLAINT SHOULD BE

DISMISSED BECAUSE PLAINTIFFS FAIL TO ALLEGE THEIR
TCCWNA CLAIM IS BASED ON AN ESTABLISHED LEGAL RIGHT
The TCCWNA, N.J.S.A. 56:12-14 to -18, prohibits a seller from entering into a

contract with a consumer that includes any provision that violates an established legal right under
federal or state law. Specifically, the statute provides in pertinent part:
No seller . . . shall . . . enter into any written consumer contract . . .
which includes any provision that violates any clearly established
legal right of a consumer or responsibility of a seller, . . .
established by State or Federal law at the time the offer is made or
the consumer contract is signed . . ..
N.J.S.A. 56:12-15. Significantly, TCCWNA does not establish consumer rights or seller
responsibilities, but instead bolsters rights and responsibilities established by other laws.
Watkins v. DineEquity, Inc., 591 Fed. Appx. 132, 134 (3d Cir. 2014). In this regard, when a
complaint fails to identify the violations of a clearly established legal right, courts have routinely
dismissed TCCWNA claims. See e.g., Rivera v. Wash. Mut. Bank, 637 F. Supp. 2d 256 (D.N.J.
2009); Skypala v. Mortg. Elec. Registration Sys., 655 F. Supp. 2d 451 (D.N.J. 2009); Perkins v.
AT&T Mobility, LLC, No. 10-6429, 2011 U.S. Dist. LEXIS 16614 (D.N.J. Feb. 17, 2011); Sauro
v. L.A. Fitness Int'l, LLC, No. 12-3682, 2013 U.S. Dist. LEXIS 58144 (D.N.J. Feb. 13, 2013).

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Instructive to this case is the courts decision in Sauro v. L.A. Fitness Int'l, LLC,
No. 12-3682, 2013 U.S. Dist. LEXIS 58144 (D.N.J. Feb. 13, 2013). There, Plaintiff attempted to
assert a TCCWNA claim arising from a gym membership agreement that Plaintiff claimed
contained misrepresentations of fact. Plaintiff claimed the defendants marketing of gym
memberships violated the New Jersey Consumer Fraud Act and predicated her TCCWNA claim
on alleged clearly established rights under the New Jersey Consumer Fraud Act. Id. at *28.
Defendant filed a motion to dismiss all claims, which the Court granted. Id. at *30. In
dismissing the TCCWNA claim, the Court made clear that the claim was predicated on a New
Jersey Consumer Fraud Act violation and since the Consumer Fraud claim was dismissed, the
dismissal of the TCCWNA claim followed because the claim was not predicated on an
established legal right. Id. at *30.
Similar to Sauro, Plaintiffs allege here that their TCCWNA claim is predicated on
established legal rights under the CFA. (See Amd. Cmp. 76). Because the CFA claim is not
cognizable, however, Plaintiffs cannot allege any violation of an established legal right to
support their TCCWNA claim. Accordingly, the TCCWNA claim must be dismissed. See
Sauro, 2013 U.S. Dist. LEXIS 58144 at *28; see also Ensey v. Gov't Emplrs. Ins. Co., No. 1207669, 2013 U.S. Dist. LEXIS 159373 (D.N.J. Nov. 7, 2013) (dismissing TCCWNA claim
predicated on dismissed CFA claim). 5

To the extent Plaintiffs try to contend their TCCWNA claim is predicated on an established legal right
under 21 C.F.R. 101.95, that contention fails. 21 C.F.R. 101.95 is a federal regulation promulgated under the
Food, Drug and Cosmetics Act (FDCA). 58 FR 2302. It is well recognized that the FDCA provides no private
right of action to consumers and cannot support a TCCWNA claim. See Wellness Publ. v. Barefoot, No. 02-3773,
2008 U.S. Dist. LEXIS 1514, at *51-52 (D.N.J. Jan. 8, 2008) (citing Healthpoint, Ltd. v. Ethex Corp., 273 F. Supp.
2d 817, 832-33 (W.D. Tex. 2001) ([T]he [Food, Drug and Cosmetics Act] does not create a private right of action
to enforce the FDCA or restrain the provisions of the FDA regulations.); Mutual Pharmaceuticals Co. v. Ivax
Pharmaceuticals, Inc., 459 F. Supp. 2d 925, 938 (C.D. Cal. 2006) (Neither [the FDA or the FTC] constituent
statutes creates an express or implied private right of action)); see also Cent. Regl Emples. Benefit Fund v.
Cephalon, Inc., No. 09-3418, 2010 U.S. Dist. LEXIS 29677, at *10 (D.N.J. Mar. 29, 2010) (there is no private cause
(continued...)

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F.

ALL CLAIMS PLAINTIFFS SEEK TO ASSERT ON BEHALF OF THE

SUBCLASS MUST BE DISMISSED BECAUSE PLAINTIFFS LACK
STANDING TO PURSUE THOSE CLAIMS
Finally, the Court must dismiss all claims that Plaintiffs seek to pursue on behalf

of a subclass consisting of individuals and entities within New Jersey who purchased bread
and/or bakery products . . . using a credit card [or] debit card for the simple reason that none of
the Plaintiffs allege that they are members of this subclass or that they suffered an injury as a
result of using a credit or debit card.
It is well settled that a named plaintiff must establish proper standing to bring
each claim before class certification. See In re Schering Plough Corp. Intron/Temodar
Consumer Class Action, 678 F.3d 235, 245 (3d Cir. 2012) (A plaintiff who raises multiple
causes of action must demonstrate standing for each claim he seeks to press.) (internal citation
omitted); Winer Family Trust v. Queen, 503 F.3d 319, 326 (3d Cir. 2007) (The initial inquiry
[in a class action] is whether the lead plaintiff individually has standing, not whether or not other
class members have standing.); In re Prudential Ins. Co. Am. Sales Practice Litig. Agent
Actions, 148 F.3d 283, 306-07 (3d Cir. 1998) ([W]hether an action presents a case or
controversy under Article III is determined vis-a-vis the named parties.); Zimmerman v. HBO
Affiliate Grp., 834 F.2d 1163, 1169 (3d Cir. 1987) (It is well settled that to be a class
representative on a particular claim, the plaintiff must himself have a cause of action on that
claim.). In order to establish standing in the class action context, Article III requires that the
representative or named plaintiff must share the same injury or threat of injury. DuPree v. U.S.,
________________________
(continued...)
of action under the FDCA ); Won Kyung Hwang v. Ohso Clean, Inc., No. 12-06355, 2013 U.S. Dist. LEXIS 54002,
at *37 (N.D. Cal. Apr. 16, 2013) (same); Wells ex rel. J.W. v. Allergan, Inc., No. 12-973, 2013 U.S. Dist. LEXIS
13191, at *26-27 (W.D. Okla. Jan. 31, 2013) (same).

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559 F.2d 1151, 1153 (9th Cir. 1977), see also Sosna v. Iowa, 419 U.S. 393, 403 (1975) (A
litigant must be a member of the class which he or she seeks to represent at the time the class
action is certified).
Here, none of the named Plaintiffs allege that they have a claim arising from a
purchase of a bread or bakery product using a credit card or debit card. Accordingly, without
allegations showing they share the same injury as the members of the purported class they seek
to represent, the Plaintiffs lack standing to assert claims on behalf of the subclass and therefore
all claims asserted on behalf of the subclass must be dismissed under Fed. R. Civ. P. 12(b)(1).
IV.

CONCLUSION
For the reasons set forth above, Plaintiffs Amended Complaint should be

dismissed in its entirety under Fed. R. Civ. P. 8, 9(b), and 12(b)(6).

PEPPER HAMILTON LLP
/s/ Matthew V. DelDuca
Matthew V. DelDuca
Angelo A. Stio III
Suite 400
301 Carnegie Center
Princeton, NJ 08543-5276
Telephone: (609) 452-0808

Dated: April 9, 2015

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