United States District Court, W.D. Washington, Tacoma
CODY BRENNER, individually and on behalf of other similarly situated, Plaintiff,
VIZIO, INC., Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS AND GRANTING PLAINTIFF
LEAVE TO AMEND
BENJAMIN H. SETTLE United States District Judge.
matter comes before the Court on Defendant Vizio, Inc.'s
("Vizio") motion to dismiss (Dkt. 27). The Court
has considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby grants in part and denies in part the motion for the
reasons stated herein.
October 31, 2017, Plaintiff Cody Brenner
("Brenner") filed a complaint against Vizio
asserting numerous causes of action on behalf of himself and
others similarly situated. Dkt. 1. On January 8, 2018, Vizio
filed a motion to dismiss. Dkt. 13. On January 29, 2018,
Brenner filed an amended complaint asserting causes of action
as follows: (1) breach of contract, (2) unjust enrichment,
(3) negligent misrepresentation, (4) negligence based on
product design and defect, (5) breach of implied warranty of
merchantability, and (6) violations of 25 different state
consumer protection acts. Dkt. 23.
February 12, 2018, Vizio filed a motion to dismiss. Dkt. 27.
March 12, 2018, Brenner responded. Dkt. 31. On March 16,
2018, Vizio replied. Dkt. 33.
claims are based on the assertion that the YouTube
application no longer works on his Vizio Smart TV. When
Brenner purchased his TV, he was able to stream content over
the internet to his TV by using the application.
Brenner's TV operates on flash-based technology. However,
beginning in 2013, Vizio and other manufacturers switched to
a newer HTML5 application programming interface technology
because applications such as YouTube switched to this newer
format. Although Brenner could stream YouTube on his TV for
some time after the switch to the newer technology, YouTube
permanently stopped functioning as an application on
Brenner's TV on July 26, 2017.
asserts that Vizio advertised and marketed that its TVs came
with the ability to access applications such as YouTube. Dkt.
23, ¶¶ 23-33. "Despite making these
representations, [Vizio] hid from consumers the fact that it
had no control over continued access to YouTube."
Id. ¶ 34. In fact, Vizio knew that in
YouTube's terms of service YouTube expressly reserved the
right to discontinue service at any time for any reason.
Id. ¶¶ 35-37. Brenner alleges that Vizio
did not pass this information on to its customers.
Id. ¶ 49. In other words, Brenner alleges that
Vizio made access to YouTube and other similar applications a
core part of its marketing strategy without informing the
consumers that the applications may stop working in the
future. Id. ¶¶ 40-50.
Vizio's advice to Brenner and owners of similar TVs is to
buy a new TV or buy an additional add-on device that will
work with HTML5. Id. ¶ 58. Brenner also claims
that Vizio "informs the consuming public about the
potential loss in third-party app functionality in its Smart
TVs, both online, in its in-store displays and on its
packaging." Id. ¶ 62.
moves to dismiss some of Brenner's claims for lack of
standing and the remainder of Brenner's claims for
failure to state a claim.
order to have standing to assert a claim, a plaintiff must
have suffered an injury-in-fact that is fairly traceable to
the actions of the defendant, and that his injury is likely
to be redressed by a favorable decision. See, e.g., Ass
'n of Public Agency Customers v. Bonneville Power
Admin., 733 F.3d 939, 950 (9th Cir. 2013). Standing is
"claim- and relief-specific, such that a plaintiff must
establish Article III standing for each of her claims and for
each form of relief sought." In re Adobe Systems,
Inc. Privacy Litig, 66 F.Supp.3d 1197, 1218, 2014 WL
4379916, at *10 (N.D.Cal. Sept. 4, 2014); see also
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)
("[O]ur standing cases confirm that a plaintiff must
demonstrate standing for each claim he seeks to
case, Vizio argues that the Court should dismiss and/or limit
the majority of Brenner's claims because Brenner only has
standing to assert violations of Washington laws. Dkt. 27 at
13-15. "[T]he majority of courts to consider this
question have concluded that when 'a representative
plaintiff is lacking for a particular state, all claims based
on that state's laws are subject to dismissal.'"
Mollicone v. Universal Handicraft, Inc.,
16-CV-07322-CAS, 2017 WL 440257, at *9 (CD. Cal. Jan. 30,
2017) (quoting In re Flash Memory Antitrust Litig.,643 F.Supp.2d 1133, 1164 (N.D. Cal. 2009). Indeed,
"[c]ourts routinely dismiss claims where no plaintiff is
alleged to reside in a state whose laws the class seeks to
enforce." Corcoran v. CVS Health Corp., 169
F.Supp.3d 970, 990 (N.D. Cal. 2016). Although ...