1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0116p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

P AMELLA M ONTGOMERY , on behalf of herself and for the benefit of all with the common or general interest, any persons in jured, and all others similarily situated, Plaintiff-Appellant ,

v

.

K RAFT F OODS G LOBAL , I NC ., a Delaware Corporation; S TARBUCKS C ORPORATION , a Washington Corporation, Defendants-Appellees

. ┐ │ │ │ │ │ │ │ │ │ │ │ │ ┘ No. 15-1283

Appeal from the United St ates District Court for the Western District of Michigan at Grand Rapids. No. 1:12-cv-00149—Gordon J. Quist, District Judge. Argued: October 14, 2015 Decided and Filed: May 16, 2016
Before: BOGGS, SUTTON, and COOK, Circuit Judges.

_________________ COUNSEL

ARGUED: Timothy H. McCarthy, Jr., Okemos, Mich igan, for Appellant. Aaron M. Panner, KELLOGG, HUBER, HANSEN, TODD, EVANS & FI GEL, Washington, D.C., for Appellees. ON BRIEF: Timothy H. McCarthy, Jr., Okemos, Mich igan, for Appellant. Aaron M. Panner, Caitlin Hall, KELLOGG, HUBER, HANSEN, T ODD, EVANS & FIGEL, Washington, D.C., Dean N. Panos, Thalia L. Myrianthopoulos, JENNER & BLOCK LLP, Chicago, Illinois, for Appellees. 

### >No. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 2

_________________ OPINION

_________________ COOK, Circuit Judge. Plaintiff Pamella Montgomery bought a Tassimo, a single-cup coffee brewer manufactured by Kraft Foods, expec ting it to brew Starbuck s coffee. After the purchase, however, she struggled to find Star bucks T-Discs—single-cup coffee pods compatible with the brewer. In fact, the Starbucks T-Disc supply eventually disappeared as Kraft’s business relationship with Starbucks sour ed. Disappointed with her pur chase, Montgomery sued Kraft and Starbucks (Defendants) on behalf of a class fo r violations of various Michigan laws. After dismissing several claims and denyi ng class certification on the re st, the district court entered judgment in Montgomery’s favor when she accep ted Defendants’ joint offer of judgment under Federal Rule of Civil Procedure 68. Montgomery now appeals the dismissal of her claims for breach of express and implied warranties, the de nial of class certification on her consumerprotection claims, and the attorney’s fees the di strict court awarded as part of the Rule 68 settlement. We AFFIRM the district court’s dismissal of the warranty claims, DISMISS the class-certification appeal as moot, and AFFIRM the attorney’s-fees award.

I.
Montgomery purchased a Tassimo from her local grocery store that bore a sticker reading: “Featuring Starbucks® Coffee.” But as Starbucks T-Discs became “increasingly difficult and [later] impossible to find,” she learned that Starbuc ks had announced its plan to terminate its distribution agreem ent with Kraft and that the two companies were embroiled in
arbitration over the contract. See Kraft Foods Global, Inc. v. Starbucks Corp. , 411 F. App’x 428 (2d Cir. 2011). In response, Montgomery sued bo th companies on behalf of a class for violation of the Michigan Consumer Protection Act (M CPA), innocent misrepresentation, breach of express and implied warranties, and breach of contract.
Defendants each moved to dismiss the complaint for failure to state a claim, and the district court, having first found the innocent misrepresentation clai m abandoned, granted the motions as to the claims for breach of express wa rranties, breach of implied warranty, and breachNo. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 3

of contract, but denied the motion as to severa l MCPA claims. Montgomery then requested class certification on those remaining claims, which the district court denied. Seeking a resolution— encouraged by the district court—Defendants submitted a joint Rule 68 offer of judgment, agreeing to pay MCPA statutory damages of $250, Mich. Comp. Laws § 445.911(2), plus reasonable attorney’s fees and costs to be de termined by the court. Montgomery accepted the offer of judgment, and requested $174,786.50 in at torney’s fees plus $5,183.56 in costs. Viewing that amount as unreasonable, the dist rict court instead orde red Defendants to pay Montgomery $6,767 in fees and costs. She appeal s the dismissal of her warranty claims, the denial of class certification, a nd the attorney’s -fees award.

II.
A. Jurisdiction over the Warranty-Claim Appeal
We first respond to Defendants’ position th at Montgomery’s agreement to settle her individual consumer-protection claims divests this court of jurisdiction to consider her challenge to the interlocutory dismissal of her warran ty claims. But a confession of judgment by defendants on fewer than all claims moots only the claims resolved in the plaintiff’s favor by the agreed judgment; other issues remaining in the case may be appealed. See Deposit Guar. Nat’l Bank v. Roper , 445 U.S. 326, 333 (1980); see also UAW v. Dana Corp. , 697 F.2d 718, 721 (6th Cir. 1983) (en banc) (“[T]here ar e instances ‘in which one issue in a case has become moot, but
the case as a whole remains alive because othe r issues have not become moot.’” (quoting Univ. of Texas v. Camenisch , 451 U.S. 390, 394 (1981))).
We read the record as showing that Mont gomery settled only her individual consumerprotection claims. Defendants’ Ru le 68 offer of judgment reads:
[Defendants] offer to allow judgment to be taken against them under Plaintiff’s First Amended Class Action Complaint and in favor of: Plaintiff in the amount of $250.00, inclus ive of all damages that may be assessed against Defendants under th e Michigan Consumer Protection Act, M.C.L. § 445.911(2), plus reasona ble attorneys’ fees and costs actually incurred and attributable to the prosecution of Plaintiff’s individual claims, as determined by the Court under applicable law.No. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 4

Though Defendants now argue that the settleme nt merged all of Montgomery’s claims, when responding to her attorney’s-fees request at the district court, Defendants actually distinguished among them , noting that “the great majority of Plaintiff’s claims were dismissed by the Court” and that Montgom ery “agreed to settle her remaining claims for $250.” Thus, because both parties viewed the offer as exti nguishing only Montgomery’s consumer-protection claims, we maintain jurisdiction over her appe al of the warranty claims’ dismissal.
B. Dismissal of Warranty Claims

We review the district cour t’s dismissal of Montgomery’s warranty claims under Federal Rule of Civil Procedure 12(b)(6 ) de novo, looking for a “short a nd plain statement . . . showing that the pleader is entitled to re lief.” Fed. R. Civ. P. 8(a)(2); see also Ctr. for Bio-Ethical Reform, Inc. v. Napolitano , 648 F.3d 365, 369 (6th Cir. 2011) (citing City of Monroe Emps. Ret. Sys. v. Bridgestone Corp. , 399 F.3d 651, 664 (6th Cir. 2005)). The complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)).
Montgomery alleges that Defendants brea ched express warranties and the implied warranty of merchantability under the Michigan Uniform Commercial Code . Mich. Comp. Laws §§ 440.2313, 2314. We examine each claim in turn.

1. Express Warranty
Montgomery claims that Defendants made and breached several express warranties: (1) The Tassimo afforded customers the “present and continued availability” of compatible Starbucks T-Discs, (2) the Tassimo was “designe d for use” with the Starbucks T-Discs, and (3) Starbucks T-Discs were “designed for use” w ith the Tassimo. Kraft moved to dismiss the express-warranty claim because Montgomery failed to plead that she was in privity of contract with Defendants, and Montgomery countered that , as a third-party bene ficiary of the KraftStarbucks distribution agreement, she met the priv ity requirement. The district court rejected Montgomery’s assertion of third- party-beneficiary status and di smissed the express-warranty claim against both Defendants on privity grounds.No. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 5

None of Montgomery’s arguments persuade us that the district court erred in its dismissal. Though the Michigan Supreme Court ha s yet to rule on the pr ivity issue regarding express-warranty claims, a Michigan Court of Appeals concluded that, because an express warranty constitutes a specific contract term, “privity of contract is necessary for a remote purchaser to enforce a manufacturer’s express warranty.” Heritage Res., Inc. v. Caterpillar Fin. Servs. Corp. , 774 N.W.2d 332, 343 n.12 (Mich. Ct. App. 2009) . “[D]ecisions by ‘the Michigan Court of Appeals are binding authority where th e Michigan Supreme Court has never addressed
the issue decided therein.’” Berrington v. Wal-Mart Stores, Inc. , 696 F.3d 604, 608 (6th Cir. 2012) (quoting Morrison v. B. Braun Med. Inc. , 663 F.3d 251, 257 n.1 (6th Cir. 2011)).
Montgomery insists, however, that no privity requirement exists for express-warranty claims under Michigan law, relying on our statement in Pack v. Damon Corp. , 434 F.3d 810, 814 (6th Cir. 2006), that the Michigan Uniform Co mmercial Code “does not limit the extension of express warranties to direct sellers.” But Pack predated the Michigan Court of Appeals’ Heritage decision, and we follow Heritage “until the Michigan Suprem e Court or another panel of the Michigan Court of Appeals rules otherwise.” Wieczorek v. Volkswagenwerk, A.G. , 731 F.2d 309, 310 (6th Cir. 1984).
To properly plead a breach-of-express-warranty claim then, Montgomery needed to allege that she was in privity with Defendants. She didn’t; her compla int acknowledged that she bought her Tassimo from a Fred Meijer grocery store, not directly from Defendants. And Montgomery’s appeal abandons the th ird-party-beneficiary theory sh e pressed before the district

court. See Dixon v. Ashcroft , 392 F.3d 212, 217 (6th Cir. 2004) (citing Boyd v. Ford Motor Co. , 948 F.2d 283, 284 (6th Cir. 1991)). Accordingly, we affirm the district court’s dismissal of Montgomery’s express-warranty claim.

2. Implied Warranty of Merchantability
Montgomery also claims that Defendants breached the implied warranty of merchantability. Under Michigan law, every seller warrants, among other things, that the sold goods (1) “are fit for the ordinary purposes for which [the] goods are used” and (2) “conform to the promises or affirmations of fact made on th e container or label if any.” Mich. Comp. LawsNo. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 6

§ 440.2314(2)(c), (f). The goods must have been “d efective when they left the possession of the manufacturer or seller” for a plaintiff to succeed on a breach-of-implied-warranty claim.
Guaranteed Constr. Co. v. Gold Bond Prods. , 395 N.W.2d 332, 336 (Mich. Ct. App. 1986) (citing Kupkowski v. Avis Ford, Inc. , 235 N.W.2d 324, 330 (Mich. 1975)).

In Pack , we explained that “Michi gan has abandoned the privity requirement for impliedwarranty claims,” 434 F.3d at 820, and Heritage left that proposition unchanged, 774 N.W.2d at 344 (noting confusion about whether the lack of contractual privity bars implied-warranty claims and refusing to address the issue). Thus, Montgo mery’s claim for breach of the implied warranty of merchantability survives the otherwise-di squalifying lack of contractual privity.
Yet her claim falls short for other reasons. First, Montgomery’s complaint failed to allege that the Tassimo was unfit for its ordina ry purpose. “Merchantable is not a synonym for perfect,” Guaranteed Constr. Co. , 395 N.W.2d at 336, and the goods need only be of “average quality within the industry,” Bosway Tube & Steel Corp. v. McKay Mach. Co. , 237 N.W.2d 488, 490–91 (Mich. Ct. App. 1975) (“[T]he warranty of me rchantability is that the goods are of average quality within the industry, while the warra nty of fitness is that the goods are fit for the purposes for which they were intended.” (citing Ambassador Steel Co. v. Ewald Steel Co. , 190 N.W.2d 275 (Mich. Ct. App. 1971))). 1 Montgomery’s complaint includes no allegation that her Tassimo is unfit for its ordinary purpos e—brewing coffee and other hot beverages.
Nor did she plausibly allege that the goods failed to conform to the promises or
affirmations of fact made on the Tassimo’s contai ner or label. Montgome ry directs us to the photographs of the Tassimo packaging she attach ed to her response to Starbucks’s motion to dismiss. The complaint referred to these packag ing-label photos, making them a cognizable part
of the record. See Bassett v. Nat’l Collegiate Athletic Ass’n , 528 F.3d 426, 430 (6th Cir. 2008) (citing Amini v. Oberlin Coll. , 259 F.3d 493, 502 (6th Cir. 2001)). But these don’t help Montgomery. The packaging promises that th e Tassimo “Featur[es] Starbucks® Coffee,” and invites customers to “[e]njoy the rich, full taste of Starbucks® coffee, one perfectly brewed cup at a time.” Canvassing the complaint, we find no suggestion that the brew er failed to live up to

1 Montgomery brings no claim for breach of the warranty of fitness.No. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 7

these promises when Montgomery bought it. Instead , she alleged that “[a ]fter the system was purchased, with time it became increasingly di fficult and impossible to find and purchase the Starbucks [T-Discs].”
Montgomery now contends that she meant to say she was unable to brew Starbucks coffee at the time of her purchase. But she neit her sought to amend her complaint in that manner nor did she make this argument below. We therefore decline to consider it. See Scottsdale Ins.
Co. v. Flowers , 513 F.3d 546, 552 (6th Cir. 2008). Because Montgomery’s Tassimo conformed to the promises on its container when she purchas ed it, she cannot claim it was defective when it left the Defendants’ possession. Guaranteed Constr. Co. , 395 N.W.2d at 336. And though Montgomery insists that the outer-box statemen ts warrant the “conti nued availability” of Starbucks T-Discs, (Am. Compl ., R. 31, PID 250), we find no error by the district court in not reading that promise into the box-labeling. The district cour t thus properly dismissed her implied-warranty claim.
C. Jurisdiction over the Class-Certification Appeal
Montgomery also appeals the district court order denying class certification of her consumer-protection claims. Defendants again cl aim that Montgomery’s acceptance of the Rule 68 offer of judgment foreclosed her appeal of this issue, and this time we agree.
Again, “[g]enerally speaking, settlement of a plaintiff’ s claims moots an action,” Pettrey v. Enter. Title Agency Inc. , 584 F.3d 701, 703 (6th Cir. 2009) (brackets omitted) (quoting Brunet v. City of Columbus , 1 F.3d 390, 399 (6th Cir. 1993)), because the plaintiff no longer possesses “a personal stake—i.e., a legally cognizable interest—in the outcome of the litigation,” id. In the class-action context, however, a plaintiff who prevails on her indi vidual claims retains a personal
stake in the outcome of a denial-of-class-certifica tion appeal if she could potentially “shift[] the litigation costs to [her] fellow class member s” upon obtaining class certification. Id. at 705; see also Deposit Guar. Nat’l Bank v. Roper , 445 U.S. 326, 336–37 (1980).

In Roper , the district court denied the plaintiffs’ motion for class certification before the defendants made a Rule 68 offer of judgment that the plaintiffs refuse d. 445 U.S. at 329. The offer included legal costs but omitted attorney’s fees. Id. Based on the offer, the district courtNo. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 8

entered judgment in the plaintiffs’ favor over th eir objections, and plaintiffs then appealed the
denial of class certification. Id. at 330. The Supreme Court rejected the defendants’ mootness argument because the plaintiffs maintained a pe rsonal stake in shifting the unawarded litigation costs to the putative class if class cer tification proved suc cessful on appeal. Id. at 336. The Court also emphasized that “[a]t no time did the named plaintiffs accept the tender in settlement
of the case.” Id. at 332. Indeed, the Court in United States Parole Commission v. Geraghty

— decided the same day as Roper —left open the question of “whether a named plaintiff who settles
the individual claim after denial of class certific ation may, consistent with Art. III, appeal from the adverse ruling on class cer tification.” 445 U.S. 388, 404 n.10 (1980) (emphasis added) (citing United Airlines, Inc. v. McDonald , 432 U.S. 385, 393–94 & n.14 (1977)). 2

After Roper and Geraghty , this court held in Pettrey that settlement of the plaintiffs’
individual claims foreclosed their class-certification appeal. 584 F.3d at 703–07. The Pettrey procedural events mimicked this case’s. Fo llowing the district cour t’s denial of class certification, the Pettrey parties entered into a settlement ag reement that obligated the defendants to pay plaintiffs’ costs and attorney’s fees. Id. at 703. The plaintiffs then appealed the denial of
class certification. Id. We found the appeal moot, distinguishing Roper in two ways. First, no “live controversy” existed because the plainti ffs “voluntarily relinquish ed” their individual claims, whereas the Roper plaintiffs’ claims were “involuntarily terminated” by the district court.
Id. at 705. Second, the plaintiffs lacked “personal stakes” in the outcome of the appeal because the defendants, in the settlement, “agreed to pay all attorneys’ fees and costs.” Id. By contrast, the district court’s judgment in Roper left the attorn ey’s-fee issue undecided, preserving plaintiffs’ appellate fee-shifting interest. See Roper , 445 U.S. at 329. 3

2 After Roper , the Supreme Court held th at an “interest in attorney’s fees is . . . insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Lewis v. Continental Bank Corp. , 494 U.S. 472, 480 (1990) (citing Diamond v. Charles , 476 U.S. 54, 70–71 (1986)). This appears to conflict with Roper ’s holding. See Genesis Healthcare Corp. v. Symczyk , 133 S. Ct. 1523, 1532 n.5 (2013) (“Because Roper is distinguishable on the facts, we need not consider its continuing validity in light of our subsequent decision in Lewis . . . .”). But because Lewis was not a class action and made no mention of Roper , we must continue to operate within Roper ’s fee-shifting framework. See Rodriguez de Quijas v. Shearson/Am. Express, Inc. , 490 U.S. 477, 484 (1989).
3 The Supreme Court r ecently rejected a mootness cha llenge in the context of an unaccepted Rule 68 offer of judgment because such an offer “is considered withdraw n” if not accepted within 14 days, providing plaintiff no relief and leaving his personal stake in the litigation unchanged. Campbell-Ewald Co. v. Gomez , 136 S. Ct. 663,No. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 9

Pettrey , not Roper , controls here. Montgomery accepte d Defendants’ Rule 68 offer of judgment—which included costs and attorney’s fees—thus e liminating any putative benefit from
class certification. Certificati on of the class would not have the potential to leave Montgomery “in a better position with respect to attorneys’ fees and costs than would the [Rule 68 offer she accepted].” Pettrey , 584 F.3d at 706.
Attempting to sidestep Pettrey , Montgomery points out that Defendants offered costs and fees she incurred in pursuing only her individual claims, whereas the Pettrey settlement provided costs and fees “incurred by the plaintiffs in pursuing both their individual and class claims.” Pettrey , 584 F.3d at 705 (emphasis added). True, but Montgomery makes no argument that she owes her lawyer these unawarded, class-related attorney’s fees. See Anderson v. CNH U.S.
Pension Plan , 515 F.3d 823, 827 (8th Cir. 2008) (holding the appeal moot because “[a]n
additional award of fees from the defendants would accrue to the benefit of plaintiffs’ counsel, to be sure, but nothing in the record demonstrates that an additional award would relieve any burden presently borne by the name d plaintiffs themselves”).
Last, Montgomery presses her express reservat ion of her right to a ppeal the denial of
class certification. She also co mplains that Defendants have ye t to pay the district court’s judgment. Pettrey , as discussed above, answers this: Mont gomery’s acceptance of the Rule 68 offer extinguished her continuing personal interest and rendered her class- certification appeal
moot. 584 F.3d at 706 & n.3.
D. Attorney’s Fees
Finally, Montgomery asks us to “reverse or vacate” the district court’s award of attorney’s fees and costs because the district court awarded only 3% of the amount requested. By positing only that the modest size of the aw ard (as compared to the request) amounts to a “non-award,” she presents the court with a gr ipe, unaccompanied by legal reasoning in support of judicial relief. We therefore agree with De fendants that Montgomery forfeited this issue by inadequately briefing it. See McPherson v. Kelsey , 125 F.3d 989, 995–96 (6th Cir. 1997)

671–72 (2016) ( quoting Fed. R. Civ. P. 68(b)). Beca use Montgomery accepted the Rule 68 offer, Campbell-Ewald provides little instruction. Moreover, the Court declined to discuss whether the plaintiff’s “claim for class relief prevent[ed] th[e] case from becoming moot.” See id. at 679 n.1 (Roberts, C.J., dissenting).No. 15-1283 Montgomery v. Kraft Foods Global, et al. Page 10

(“[I]ssues adverted to in a perfunctory manne r, unaccompanied by some effort at developed argumentation, are deemed waived. It is not suffi cient for a party to me ntion a possible argument in the most skeletal way, leaving the cour t to . . . put flesh on its bones.” (quoting Citizens Awareness Network, Inc. v. United States Nuclear Regulatory Comm’n , 59 F.3d 284, 293–94 (1st Cir. 1995))). Accordingly, we affirm the fees aspect of this appeal.

III.

We AFFIRM the district court’s dismissal of Montgomery’s claims for breach of express and implied warranties, DISMISS the class-cer tification appeal as moot, and AFFIRM the district court’s award of attorney’s fees.