UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

SARA HAWES and AMY HILL, 

individually, and on behalf of all others 

similarly situated,

Plaintiffs,

v.

MACY’S INC, AQ TEXTILES LLC, 

CREATIVE TEXTILE MILLS PVT. LTD., 

JOHN DOE CORPORATIONS (1-100)

Defendants.

Case No. 1:17-CV-754

Judge Timothy S. Black

PLAINTIFFS’ COMBINED RESPONSE TO 

DEFENDANT MACY’S INC.’S MOTION TO DISMISS

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INTRODUCTION

Defendant Macy’s Inc.’s (“Defendant”) motion to dismiss (Dkt. 17) should be denied. 

Defendant’s brief raises no meritorious legal defenses; rather, it is premised on premature factual 

and class certification arguments. And Defendant distorts and ignores the facts and claims alleged 

in the Plaintiffs’ Class Action Complaint (“Complaint”) (Dkt. 1). 

Defendant misrepresented its sheets and linens as having higher thread counts than they 

actually possess (for Plaintiff Hawes, by approximately 75%). It ignored accepted ASTM industry 

standards and trade literature concerning acceptable thread counting. The Complaint describes in 

detail Defendant’s consumer, warranty, and fraud violations. Defendant cannot escape these 

claims, so it seeks to avoid them with standing and various garden-variety 12(b)(6) defenses. 

Plaintiffs and putative class members’ injuries are well-pled: they were charged more money for 

misrepresented thread count sheets and linens and they believed Defendant’s promises that the 

higher thread count sheets provided higher quality, durability, and fitness which would, in turn,

provide softer and more comfortable sleeping. Defendant’s brief does nothing to unravel the false 

representations, promises, and unlawful conduct.1

FACTUAL BACKGROUND

Plaintiffs Sara Hawes and Amy Hill filed their Complaint on November 8, 2017, on behalf

of themselves and all other similarly situated. The Complaint alleges that Defendants Macy’s Inc. 

(“Macy’s”), AQ Textiles LLC (“AQ”), and Creative Textile Mills Pvt. Ltd. (“Creative”), 

collectively deceived and misled the American consumer public by selling sheets, linens, and other 

bedding and textile products with an inflated and misrepresented “thread count”2 which 

 1 Plaintiffs hereby incorporate the arguments made in their concurrently-filed Opposition to 

Defendant AQ Textiles, L.L.C.’s Motion to Dismiss.

2 “Thread count” – analogous to the price point – represents to everyday consumers the level of 

quality associated with a bedding or textile product. Dkt. 1 at ¶¶ 19-23. The counting of threads 

is an important industry practice because consumers will readily use thread count as an indicator 

of fabric value and quality. Id. As the thread count increases, so does the price that consumers are 

willing to pay for bedding and linens. Id. at ¶¶ 22-23. 

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significantly departed from industry standards and norms. Dkt. 1 at ¶¶ 1, 3-5, 24-29, 34-35, 47. 

This is important, as consumers associate products with higher thread counts as having a higher 

quality, being softer, and being more comfortable. Id. at ¶¶ 1-2, 11-12, 21-23. Defendant was 

aware of this perception by the public and profited by knowingly and/or negligently 

misrepresenting the thread counts of its products to increase sales and/or to increase sales prices. 

Id. at ¶¶ 20, 35, 46, 49. Defendant not only made misleading statements regarding the products in 

question on its website and in its retail stores (id. at ¶ 42), but also knew that the thread counts on 

the products were being inaccurately reported, or at minimum, should have known because the 

prices for the misleading products were lower than authentic materials with the correct advertised 

thread counts. Id. at ¶¶ 46, 50. 

Defendant’s improper conduct, in conjunction with Co-Defendants AQ and Creative, 

caused Plaintiffs and class members to purchase the falsely advertised products at inflated prices. 

Id. at ¶¶ 48, 50. More importantly, Plaintiffs and class members did not receive what Defendants 

promised and warranted – i.e., sheets, bedding and other linen products of a certain thread count, 

quality and fitness for its intended use. Id. at ¶¶ 80, 160. Plaintiffs and class members were injured 

as a result and now bring this lawsuit. Id. at ¶¶ 48, 50, 95. 

ARGUMENT AND AUTHORITIES

I. Plaintiffs have standing to assert all claims as to all of Defendants’ products.

Defendant argues that Plaintiffs lack standing to pursue claims for sheets not purchased by 

Plaintiffs. However, the weight of the authority holds that because Plaintiffs are representatives 

of a putative class, they have standing to assert claims for substantially similar products even if 

they did not purchase other substantially similar products purchased by other consumers.: “The 

majority of the courts that have carefully analyzed the question hold that a plaintiff may have 

standing to assert claims for unnamed class members based on products he or she did not purchase 

so long as the products and alleged misrepresentations are substantially similar.” Brown v. Hain 

Celestial Group, Inc., 913 F. Supp. 2d 881, 890 (N.D. Cal. 2012). Under the majority approach, 

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“the critical inquiry is whether there is sufficient similarity between the products purchased and 

not purchased.” Mednick v. Precor, Inc., No. 14 C 3624, 2014 WL 6474915, at *3 (N.D. Ill. Nov. 

13, 2014). 

In this case, Plaintiffs’ claims arise from Defendants’ identically misleading representation 

— that Defendants’ products are of a higher thread count than they actually are. See, e.g., Dkt. 1

¶¶ 1, 3,11, 12, 35, 36, 37, 38, 39, 40. Plaintiffs sufficiently state the misleading nature of each 

products’ labels by alleging that sheets and bedding products are advertised and packaged with 

false thread counts. See, e.g., Dkt. 1 ¶¶ 11, 12, 38, 39, 44, 49. 

As to Defendant’s argument that Plaintiffs “have not even bothered to identify all the 

products they claim to be suing over” (see Dkt. 17-1 at 5), the complaint indicates otherwise.

Plaintiffs’ class definitions clearly define the products at issue – bedding or linen manufactured or 

supplied by Defendant AQ Textiles and/or Defendant Creative Textiles that was packaged or 

advertised with a representation regarding its thread count and sold at a Macy’s store. Dkt. 1 at ¶¶ 

51, 56. 

Critically, in evaluating substantial similarities between purchased and unpurchased 

products, courts consider not only physical similarities but also the similarities between the alleged

misrepresentations. Mednick v. Precor, Inc., No. 14 C 3624, 2014 WL 6474915, at *3 (N.D. Ill. 

Nov. 13, 2014).

3 Plaintiffs have alleged that all of the sheets and bedding forming the basis of 

their claims share the same common misrepresentation – a misrepresented thread count. Dkt. 1 at 

¶¶ 35-50, 51, 56. The underlying harm is identical no matter if the misrepresentation is 500, 700,

or 1200 thread count, or any other misrepresented number. 

 3 See also Brown v. Hain Celestial Grp., Inc., 913 F. Supp. 2d 881, 890 (N.D. Cal. 2012) 

(“Where product composition is less important, the cases turn on whether the alleged 

misrepresentations are sufficiently similar across product lines.”); Astiana v. Dreyer’s Grand Ice 

Cream, Inc., C-11-2910 EMC, 2012 WL 2990766, at *13 (N.D. Cal. July 20, 2012) (”That the 

different ice creams may ultimately have different ingredients is not dispositive as Plaintiffs are 

challenging the same basic mislabeling practice across different product flavors.”). 

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Moreover, the analysis of whether the Plaintiffs’ have standing to bring claims on behalf 

of other purchases is premature and should be deferred; the “better...approach” is to conduct such 

analysis under Rule 23 at class certification. Quinn v. Walgreen Co., 958 F. Supp. 2d 533, 542 

(S.D.N.Y. 2013). Even the Godec standing decision was made at certification, not on a motion to 

dismiss. Godec v. Bayer Corp., 1:10-CV-224, 2011 WL 5513202, at *2, n3 (N.D. Ohio Nov. 11, 

2011) (analysis under Rule 23(a)(4)); see also, e.g., Burton v. Hodgson Mill, Inc., 16-CV-1081-

MJR-RJD, 2017 WL 1282882, at *5 (S.D. Ill. Apr. 6, 2017) (“Though standing should not be 

obtained via the back door of class certification, this Court finds that it would be premature to rule 

on standing/class certification issues that are clearly intertwined prior to the Plaintiff formally 

moving for certification.”); Quinn, 958 F. Supp. 2d at 542 (“There is no question plaintiffs have 

standing to assert claims relating to the product they did purchase. Further, there are substantial 

similarities between all of defendants’ Glucosamine Supplements, and the alleged 

misrepresentations on the labels of the Glucosamine Supplements are nearly identical. Therefore, 

the Court finds the appropriate time to consider whether plaintiffs can bring claims on behalf of 

purchasers of all of the various Glucosamine Supplements is at the class certification stage, not on 

a motion to dismiss.”).4

The substantially similar misrepresentations are clearly alleged in Plaintiffs’ Class Action 

Complaint. At this stage of the proceedings, nothing more is required. Because Plaintiffs’

complaint sets forth in detail why the misrepresentation is equally misleading as to all products, 

Plaintiffs’ allegations are sufficient for standing as to all sheets and bedding made part of the class 

 4 See also Cardenas v. NBTY, Inc., 870 F.Supp.2d 984, 992 (E.D. Cal. 2012); Brown, 913 

F.Supp.2d at 890–92; Koh v. S.C. Johnson & Son, Inc., 2010 WL 94265, at *3 (N.D. Cal. Jan. 6, 

2010) (denying defendants motion to dismiss plaintiff’s claims relating to products he did not 

purchase, noting “this is not a case in which plaintiff is asserting claims against defendants that 

never harmed him,” and “defer[ing] ruling on the issue until the class certification stage”); Elias 

v. Ungar’s Food Products, Inc., 252 F.R.D. 233, 243 (D. N.J.2008) (granting in part motion for 

class certification and noting, “the fact that the named plaintiffs did not purchase some of the 

products at issue does not render plaintiffs’ claims atypical from the potential class members nor 

does it defeat commonality”); Bietsch v. Sergeant’s Pet Care Products, Inc., 15 C 5432, 2016 WL 

1011512, at *9 (N.D. Ill. Mar. 15, 2016).

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definitions. Vass v. Blue Diamond Growers, CV 14-13610-IT, 2015 WL 9901715, at *7 (D. Mass. 

Aug. 11, 2015), report and recommendation adopted, 14-CV-13610-IT, 2016 WL 1275030 (D. 

Mass. Mar. 31, 2016) (“Applying the substantial similarity test employed by the majority of courts, 

the allegations of the amended complaint demonstrate sufficient similarity between the Purchased 

Product and the Substantially Similar Products that Vass has standing to assert claims based on 

products he did not purchase.”). Defendant’s standing arguments regarding the unpurchased 

products are thus premature and without merit and should be denied.

II. Plaintiffs’ claims should not be dismissed under 12(b)(6).

“For purposes of a motion to dismiss pursuant to Rule 12(b)(6), the Court must view the 

complaint in the light most favorable to the plaintiff and take all well-pleaded factual allegations 

as true.” Baird v. Daniels, No. 1:12-CV-945, 2014 WL 1407945, at *2 (S.D. Ohio Apr. 11, 2014) 

(Black, J.) (citing Tackett v. M & G Polymers, 561 F.3d 478, 488 (6th Cir.2009)). The factual 

allegations need only be enough to “nudge[] their claims across the line from conceivable to 

plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The inquiry is restricted to the 

subject matter in the complaint, orders, and the public record. Basset v. Nat’l Collegiate Athletic 

Ass’n, 528 F.3d 426, 430 (6th. Cir. 2008). 

A. Plaintiffs’ Magnuson-Moss Warranty Act claims should not be dismissed.

Defendant argues that the Magnuson-Moss Warranty Act (MMWA) warranty claims 

should be dismissed because the complaint does not allege a breach of express warranty and 

Plaintiffs did not offer Defendant an opportunity to cure. These arguments fail.

Defendant’s contention that the complaint fails to allege a breach of warranty is incorrect. 

Plaintiffs allege a breach of express warranty at count 9 of the Complaint and illustrate that an 

express warranty existed herein (see Plaintiffs’ express warranty discussion, infra). 

The MMWA defines the term written warranty as “any written affirmation of fact or 

written promise made in connection with the sale of a consumer product by a supplier to a buyer 

which relates to the nature of the material or workmanship and affirms or promises that such 

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material or workmanship is defect free or will meet a specified level of performance over a 

specified period of time ...”. 15 USCA § 2301(6)(A). The MMWA “does not require that a 

warranty be provided, it merely requires that if a warranty is extended, [the warrantor] must 

comply with its terms.” Lawhorn v. Joseph Toyota, Inc., 141 Ohio App.3d 153, 155 (2001). 

Defendant’s representations and thread count statements amount to a “written affirmation of fact 

... [that] relates to the nature of the material or workmanship ...”. The representations and/or 

statements regarding the thread count constitute an assurance and promise that the products have 

a certain thread count and accordingly a certain character and quality. See Dkt. 1-2, Ex. A (Hawes’

sheets stated “900 THREADS PER SQUARE INCH ... SINGLE SHEET YARN”); ¶39 

(Ms. Hawes’ purchased sheets were 249 count instead of the represented 900 count). Plaintiffs 

also allege that these representations constitute an assurance that the products “will meet a specific 

level of performance over a specified period of time ...” ¶¶79-80. Thus, Defendant’s statements 

regarding thread counts created written promises and warranties within the meaning of the 

MMWA.

Defendant claims that Plaintiffs failed to provide it with an opportunity to cure its conduct 

“as required by subsection 2310(e).” Dkt. 17-1 at 8. Because this a class action, Plaintiffs are 

permitted to provide notice when the time comes to file a motion for class certification pursuant 

to Rule 23 and “that time has not yet come.”5 Siriano v. Goodman Mfg. Co., No. 2:14-CV-1131,

2015 WL 12748033, at *15 (S.D. Ohio Aug. 18, 2015); In re Porsche Cars N. Am., Inc., 880 F. 

Supp. 2d 801, 825 (S.D. Ohio 2012) (same). Furthermore, Plaintiffs were not obligated to provide 

Defendant with an opportunity to cure since such a gesture would have been futile. This is 

demonstrated by Defendant’s strident denials of the claims against it, and refusal to acknowledge 

that the sheets do not have the advertised thread count. Defendant sold large quantities of the 

misrepresented sheets during the class period, such that an adequate cure would be extremely 

costly, and “repairing” sheets is not possible. Since at least 2002, Defendant knew or should have 

 5 In addition, Plaintiffs, by and through their counsel, gave prelitigation notice to Defendants 

pursuant to Cal. Civ. Code Sec. 1750, et al., on June 27, 2017.

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known that the thread count industry was to meet industry standard ASTM D3775 and that the 

NTA, ATMI, FTC worked to warn manufacturers about improper thread count representations. 

Dkt. 1 at ¶¶25-29; ¶161 (“Defendants were noticed of these issues within a reasonable time by 

multiple complaints including the instant one.”). Defendant’s reliance on the non-reported case 

Kuns v. Ford Motor Co. concerning whether “cure” was necessary, has little utility and is actually 

helpful to Plaintiffs here because it was an appeal of summary judgment that held that “cure is 

normally a question of fact.” Kuns v. Ford Motor Co., 543 F. App’x 572, 577 (6th Cir. 2013); 

Malkamaki v. Sea Ray Boats, Inc., 411 F. Supp. 2d 737, 745 (N.D. Ohio 2005) (noting that cure 

issue is a factual issue). Lastly, Defendant’s sheets did not indicate where any notice of breach 

was to be sent. Accordingly, Defendant’s motion to dismiss Plaintiffs’ warranty claims should be 

denied.

B. Plaintiffs’ breach of warranty of merchantability claim should not be 

dismissed.

Defendant’s argument is confusing given the clear allegations in the Complaint. Defendant

incorrectly claims that Plaintiffs’ allegations fail because “they make no complaints regarding the 

softness, comfort, or durability of the sheets” and only lodge harmless and unimportant 

mathematical sheet count discrepancies. Dkt. 17-1 at 10. Defendant omits that Plaintiffs have 

alleged that its sheet representations and affirmations are (1) untrue, see Dkt. 1 at ¶39 (the “true 

thread count” of Ms. Hawes’ sheets was approximately 249, not 900 as stated6); and (2) that the 

result of the low thread count and false promises caused deficiencies in the bed sheets softness, 

comfort, and durability necessary for quality sleeping. Id. at ¶¶1, 2 (“more comfortable for 

sleeping”), 4, 5 (“better for sleeping”), 11, 12 (Named Representative “believed ... better for 

sleep”), 160 (“were unfit for the ordinary purpose”). Defendant’s sheets are unfit for their ordinary 

use. “Crucial to the inquiry is whether the product conformed to the standard performance of like 

products used in the trade.” Pisano v. American Leasing, 146 Cal.App.3d 194, 198, 194 Cal.Rptr. 

 6 Difference in thread count between what was represented and sold by Defendant equals 651 

(900 - 249), which is only 28% of what was represented.

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77 (1983). The Complaint states plainly that the sheets did not contain the represented thread 

count despite “long-standing industry standards for calculating thread counts.” Defendant 

advertised and sold “bedding and linen products with inflated thread counts.” Dkt. 1 at ¶¶34, 39 

(sheets contain 249 thread counts and not 900). See Hendricks v. StarKist Co., 30 F. Supp. 3d 917, 

933 (N.D. Cal. 2014) (implied warranty of merchantability upheld because product was “not 

adequately packaged, consistent with an implied promise that they were adequately filled with 

tuna.”).

Here, Plaintiffs suffered collateral and resulting damages because in addition to the sheets 

not meeting represented expectations, they also failed their obvious purpose -- to help customers 

sleep comfortably in their beds. As such, Plaintiffs’ injuries were “inevitably caused by” the 

“defect” in the sheets. Birdsong v. Apple, Inc., 590 F.3d 955, 959 (9th Cir. 2009) (emphasis 

added). At bottom, the sheets lack “the most basic degree of fitness for ordinary use.” Id. at 958; 

see Mo. Rev. Stat. § 400.2–314.1(2)(c); Cal. Com.Code § 2314(2)(c); Ohio Rev. Code Ann. 

1302.27. Accordingly, Defendant’s motion to dismiss Plaintiffs’ breach of the warranty of 

merchantability claims should be denied.

C. Plaintiffs’ fraud claims are pled with sufficient particularity.

As a threshold matter, Federal Rule 9(b) only applies to allegations of “fraud or mistake.” 

Fed. R. Civ. P. 9(b). While Plaintiffs’ consumer protection claims implicate fraud, those claims 

are not premised solely upon fraudulent misconduct and contain warranty allegations. To the 

extent Plaintiffs’ consumer protection claims are premised upon such allegations, they cannot be 

dismissed. 

Plaintiffs’ substantive and detailed allegations allow for this Court and the Defendant to 

appreciate the fraud conducted. The allegations here meet the criteria for common law fraud and 

satisfy any Federal Rule 9(b) particularity inquiry. In California, fraud is proven by showing (1) 

a misrepresentation, (2) knowledge or appreciation, (3) intent to defraud, (4) reliance, and (5) 

damage. Kearns v. Ford Motor Co., 567 F.3d 1120, 1126 (9th Cir. 2009) (internal citations 

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omitted). It is similar in Missouri. Consol. Grain & Barge, Co. v. Hobbs, 397 S.W.3d 467, 477 

(Mo. Ct. App. 2013) (internal citations omitted) (required to show “(1) a representation by the 

defendant that is false, (2) the plaintiff’s reliance on the truth of the representation, (3) the 

plaintiff’s right to rely on the truth of the representation, and (4) injury”). “In alleging fraud or 

mistake, a party must state with particularity the circumstances constituting fraud or mistake.” 

Fed. R. Civ. P. 9(b). Fraud allegations shall with particularity state the “‘time, place, and content 

of the alleged misrepresentation ... the fraudulent scheme; the fraudulent intent of the defendants; 

and the injury resulting from the fraud.’” Baird v. Daniels, No. 1:12-CV-945, 2014 WL 1407945, 

at *2 (S.D. Ohio Apr. 11, 2014) (Black, J.) (internal citations omitted). The allegations here meet 

these requirements. 

Defendant falsely represented that it sheets contained higher thread counts than they did. 

See Dkt. 1 at ¶39 (Ms. Dawes purchased sheets were 249 count instead of the represented 900 

count); ¶39 and ¶42 (“Macy’s made false representations ... on the website 

http://www.macys.com, as well as in all the retail Macy’s stores stocked with the relevant goods”); 

¶4 (“Defendants misrepresented, and continue to misrepresent, that the thread count in many of 

the bedding and linen products they advertise, market, distribute throughout the country...”); Dkt. 

1-2, Ex. A (Hawes’ sheets stated “900 THREADS PER SQUARE INCH ... SINGLE SHEET 

YARN”); ¶¶25-29 (explaining that the industry standard for thread counting is ASTM D3775 and 

that Defendant did not comply); ¶¶11, 37, 40-42, 44, 47 (containing misrepresentation allegations). 

Defendant was aware - or should have been aware - that its representations regarding thread 

count were not truthful and thus was aware they were fraudulent. See ¶¶25-29 (stating that 

manufacturer’s thread counts were to meet industry standard ASTM D3775 and that since at least 

2002 the NTA, ATMI, FTC worked to warn manufacturers about improper thread count 

representations); ¶37 (“Defendant ... either knew or should have known that the advertised thread 

counts were false.”); ¶161 (“Defendants were noticed of these issues within a reasonable time by 

multiple complaints including the instant one.”); ¶¶37, 44, 46, 87, 116, 125, 138, 150 (containing 

knowledge allegations).

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Defendant intended for its statements to induce the Plaintiffs and putative class. See Dkt. 

1-2, Ex. A (Hawes’ sheet wrapper stated “900 THREADS PER SQUARE INCH ... SINGLE 

SHEET YARN”); ¶6 (“Defendants in their products induced Plaintiffs and other Class Members 

to purchase their products when Plaintiffs and other Class Members would not have purchased 

them”); ¶178 (“Defendants represented ... in advertising, packaging, product descriptions, and 

other forms of communication ... that the sheets and bedding products had higher thread counts 

than their true thread counts”); ¶9 (“Some of the bedding and linen products at issue were 

advertised, marketed, sold and/or distributed by Macy’s, or its operating entities, in this district.”); 

¶3 (“As part of a scheme ... Defendants knowingly departed from known, well-established, and 

long-standing industry standards governing the calculation and advertisement of thread counts.”); 

¶¶6, 50, 124-25 (containing inducement allegations). 

The facts demonstrate that Plaintiffs relied on Defendant’s statements. Defendant admits 

as much, stating “Plaintiffs clearly identify” misrepresentations “they saw.” Dkt. 17-1 at 13. See

also ¶12 (stating that Plaintiff Hawes purchased her sheets on or around May 2017 at a Macy’s 

store located at 8500 Beverly Blvd. in Los Angeles, CA after relying on Defendant’s label 

representations stating that the sheets had a “900 thread count”); ¶11 (stating that Plaintiff Hill 

purchased her sheets in the summer or fall of 2016 from a Macy’s store located in St. Louis County, 

MO after relying on the Defendant’s 1000 thread count representation); ¶¶21, 47, 57, 58 and 115 

(containing reliance allegations). 

Defendant’s conduct resulted in both monetary and comfort (quality) damages to Plaintiffs 

and the putative class. See ¶6 (“Plaintiffs and other Class Members would not have purchased 

them, or would only have paid a lower price for the product.”); ¶¶2, 6, 19-21, 22 (“A single-ply 

300-count can run about $55 a set, while the 600 thread-count sheets that [tested as] only a 300-

count is $180 a set.”); 23 (price chart based on thread count); ¶151 (“higher prices”); and ¶¶1-2 

(“higher thread counts actually...more comfortable”). 

The allegations cited herein are pleaded with particularity. See ITS Fin., LLC v. Advent 

Fin. Servs., LLC, 823 F. Supp. 2d 772, 779–80 (S.D. Ohio 2011) (Black, J.) (citing complaint) 

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(statements amounting to repeated and knowing “‘representations and assurances ... intended to 

induce’” reliance to a party’s detriment.); Aero Fulfillment Servs. Corp. v. Oracle Corp., 186 F. 

Supp. 3d 764, 777 (S.D. Ohio 2016) (Black, J.) (plaintiff “alleges numerous specific fraudulent 

misrepresentations ... including who made the statements, to whom, and approximately when the 

statements were made ... to its detriment.”); Hendricks v. StarKist Co., 30 F. Supp. 3d 917, 934 

(N.D. Cal. 2014) (list of allegations in complaint were sufficient to meet fraud standard).7 Finally, 

discovery that will soon take place along with the development of a full record here will allow for 

the Plaintiffs and putative class to further examine and illustrate Defendant’s fraudulent conduct. 

See Morrision v. YTB International, Inc., 641 F.Supp.2d 768, 774-75 (S.D. Ill. 2009) (“Rule 9(b) 

generally is relaxed where facts pertinent to a plaintiff’s claim of fraud are in the exclusive 

possession of a defendant and can be disclosed only through discovery.”). 

D. Plaintiffs’ CLRA claims are proper since prelitigation notice would have been 

futile.

Macy’s has challenged Plaintiffs’ CLRA claims based on failure to provide prelitigation 

notice of the claims. First, Plaintiffs, by and through their counsel, gave prelitigation notice to 

Defendants pursuant to Cal. Civ. Code Sec. 1750, et al., on June 27, 2017. Thus, this argument 

should be rejected in its entirety. 

Furthermore, even if Plaintiffs had not given such notice, this challenge fails since 

California courts have recognized that plaintiffs are under no obligation to provide notice where 

such notice would be futile and/or a waste of time. C.F. Cates v. Chiang, 153 Cal.Rptr.3d 285, 

306 (Cal. App. 4 Dist. 2013) (“Exercising its broad discretion, the court did not err in concluding 

that because the undisputed evidence shows a prelitigation demand would have been futile, Cates 

was not barred from recovering section 1021.5 attorney fees.”); Henderson v. J.M. Smucker Co., 

No. CV 10–4524–GHK, 2013 WL 3146774, at *10 (C.D. Cal. June 19, 2013) (same). See also 

 7 California and Missouri analyze fraud using a preponderance of the evidence standard. 

Crawford v. Smith, 470 S.W.2d 529, 533 (Mo. 1971); Liodas v. Sahadi, 19 Cal. 3d 278, 286, 562 

P.2d 316 (1977). 

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Steen v. Board of Civil Service Commissioners, 26 Cal.2d 716, 721, 160 P.2d 816 (Cal. 1945) 

(“[g]enerally a demand is not a prerequisite where it would be futile or an idle gesture.”).8

Based on the record that has been established since the filing of Plaintiffs’ complaint on 

November 8, 2017, requiring Plaintiffs to provide prelitigation notice would have been (and indeed 

was) futile and/or a waste of time. As evidenced by the motion to dismiss seeking dismissal of all 

claims against it, Macy’s has not made any effort to settle the claims against it and continues to 

deny liability to Plaintiffs and the class they seek to represent. Accordingly, it is crystal clear that 

requiring Plaintiffs to provide prelitigation notice would have been futile. See Cates, 213 

Cal.App.4th 791, 816 (finding prelitigation notice would have been futile where “[t]he evidence 

showed that for several years after Cates filed the action, the Commission continued to strongly 

assert that its practices were appropriate and the tribes did not owe the state any money. There is 

no evidence that the Commission would have agreed to change its procedures in response to a 

prelitigation settlement offer or that negotiating with the Commission was a reasonable alternative 

to the lawsuit.”).

Thus, Plaintiffs’ CLRA claims are proper and should not be dismissed by the Court.9

E. Plaintiffs’ warranty claims are proper since prelitigation notice would have 

been futile.

Macy’s also challenges Plaintiffs’ warranty claims based on Plaintiffs’ failure to provide 

prelitigation notice. This argument similarly fails for the reasons discussed above with respect to 

Plaintiffs’ CLRA claims since a) Plaintiffs did provide notice, and b) the providing of such notice 

 8 “The law does not require useless acts from litigants as prerequisites to seeking relief from the 

courts.” Van Gammeren v. City of Fresno, 51 Cal.App.2d 235, 240 (Cal.App.4.Dist 1942); see 

also Doster v. County of San Diego, 203 Cal.App.3d 257, 262 (Cal.App.4.Dist, 1988) (“[t]he law 

does not require a party to participate in futile acts.”); Civ. Code, § 3532; see People v. Herrera, 

49 Cal.4th 613, 622 (Cal. 2010) (law does not require the doing of futile act).

9 Both Macy’s and AQ contest Plaintiffs’ standing to seek injunctive relief under the CLRA. 

This argument fails since it is clear Plaintiffs’ have suffered damages by virtue of their purchase 

of sheets containing misleading statements regarding thread counts. See Meyer v. Sprint Spectrum 

L.P., 88 Cal.Rptr.3d 859, 865 (Cal. 2009) (to have standing under CLRA, there must be 

“infringement of any legal right under section 1770” and plaintiff must have suffered “damage as 

a result of the use or employment of an unlawful practice”) (internal quotations omitted).

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would was futile and/or a waste of time. See Cates, supra. Wherefore, because Plaintiffs were 

not under an obligation to provide notice of their warranty claims to Macy’s or AQ, these claims 

should not be subject to dismissal.

F. Plaintiffs’ common-law fraud claims are not barred by the economic loss rule.

Macy’s also argues that Plaintiffs’ fraud claims are barred by the economic loss rule. These 

arguments should be rejected since Plaintiffs allege that they were fraudulently induced into 

purchasing the sheets based on Defendants’ misrepresentations regarding thread counts.

Both California and Missouri courts recognize exceptions to the economic loss doctrine in 

instances of fraudulent inducement. See Erlich v. Menezes, 981 P.2d 978, 983, 87 Cal.Rptr.2d 

886, 891 (Cal. 1999) (acknowledging exception to economic loss rule for instances of fraudulent 

inducement); Las Palmas Associates v. Las Palmas Center Associates, 235 Cal.App.3d 1220, 

1238–1239 (Cal.App.2.Dist 1991) (same); Patterson Oil Co., Inc v. Verifone, Inc., No. 2:15–cv–

4089, 2015 WL 6149594, at *8 (W.D. Mo. Oct. 19, 2015) (“claims that the plaintiff was 

fraudulently induced to enter the contract are widely interpreted to present an exception to the 

economic loss doctrine.”); Murphy v. Northwest Mut. Ins. Co., No. 03-0864CV-W-HFS, 2005 WL 

1421789, at *2 (Mo. Ct. App. June 13, 2015) (damages proximately caused by an intentional, false 

representation are an exception to the economic loss doctrine).

Here, Plaintiffs and the class have clearly alleged that they were fraudulently induced to 

purchase the sheets based on misrepresentations regarding thread counts. See Dkt. 1 at ¶6 (alleging 

that Defendants’ misleading statements regarding thread counts “induced Plaintiffs and other Class 

Members to purchase their products ...”). Accordingly, Plaintiffs’ fraud claims are not subject to 

the restrictions imposed by the economic loss rule as Plaintiffs have alleged they were fraudulently 

induced to purchase the sheets in question. Patterson Oil Co., Inc., 2015 WL 6149594, at *8 

(“[c]laims about the quality of goods sold may therefore fall within the fraudulent inducement 

exception if they are nevertheless independent of the contract formed.”). The fraud claims should 

proceed.

Case: 1:17-cv-00754-DRC Doc #: 25 Filed: 03/09/18 Page: 14 of 16 PAGEID #: 247
15

CONCLUSION

For the reasons set forth above, Macy’s motion to dismiss (Dkt. 17) should be denied.

DATED: March 9, 2018 s/Jack Landskroner

Jack Landskroner (0059227)

Drew Legando (0084209)

LANDSKRONER GRIECO MERRIMAN LLC

1360 West 9th Street, Suite 200

Cleveland, Ohio 44113

Telephone: 216-522-9000

Fax: 216-522-9007

jack@lgmlegal.com

drew@lgmlegal.com

Charles Schaffer (admitted pro hac vice)

LEVIN SEDRAN & BERMAN

510 Walnut Street, Suite 500

Philadelphia, PA 19106

Telephone: (877) 882-1011

Facsimile: (215) 592-4663

cschaffer@lfsblaw.com

Stuart Cochran (pro hac vice pending)

STECKLER GRESHAM COCHRAN

12720 Hillcrest Road, Suite 1045

Dallas, TX 75230

Telephone: 972-387-4040

stuart@stecklerlaw.com

Brendan S. Thompson (pro hac vice pending)

CUNEO GILBERT & LADUCA, LLP

4725 Wisconsin Ave., NW, Suite 200

Washington, DC 20016

Telephone: 202-789-3960

brendant@cuneolaw.com

Attorneys for Plaintiffs

Case: 1:17-cv-00754-DRC Doc #: 25 Filed: 03/09/18 Page: 15 of 16 PAGEID #: 248
16

CERTIFICATE OF SERVICE

A copy of this document was served by the Court’s ECF System on all counsel of record 

on March 9, 2018, pursuant to Fed. R. Civ. P. 5(b)(2)(E).

s/Jack Landskroner

Jack Landskroner (0059227)

Counsel for Plaintiffs

Case: 1:17-cv-00754-DRC Doc #: 25 Filed: 03/09/18 Page: 16 of 16 PAGEID #: 249