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Brenner v. Vizio, Inc.

United States District Court, W.D. Washington, Tacoma

May 16, 2018

CODY BRENNER, individually and on behalf of other similarly situated, Plaintiff,
v.
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.

         This 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.

         I. PROCEDURAL HISTORY

         On 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.

         On 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.

         II. FACTUAL BACKGROUND

         Brenner's 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.

         Brenner 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.

         Currently, 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.

         III. DISCUSSION

         Vizio 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.

         A. Standing

         In 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 press.").

         In this 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 ...


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