1 

*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

____________________________________ 

 : 

ROBERT DICUIO, on behalf of himself : 

and all others similarly situated, : 

 : 

Plaintiff, : Civ. Action No.: 11-1447 (FLW) 

 : 

v. : OPINION

 : 

BROTHER INTERNATIONAL : 

CORPORATION, : 

 : 

 Defendant. : 

____________________________________: 

WOLFSON, District Judge: 

In this putative class action, Plaintiffs Robert Dicuio ("Dicuio"), William Self, Robert 

Albanese, Reuben Zadeh, Karen Pociluyko, Terry Pociluyko, Angela Bryant, and Robert Steuer 

(collectively "Plaintiffs") bring this suit under the Class Action Fairness Act of 2005 (“CAFA”), 

28 U.S.C. § 1332, alleging that Defendant Brother International Corporation (“Defendant”) 

misrepresented that its color toner cartridges would need to be replaced only when the toner was 

depleted when, in fact, its printers are designed to cease printing when only one of the three color 

toner cartridges has exhausted its contents. Presently before the Court is Defendant’s motion to 

dismiss Plaintiffs' First Amended Complaint ("FAC") pursuant to Federal Rule of Civil 

Procedure 12(b)(6). For the reasons that follow, the Court grants Defendant's motion with 

respect to Plaintiffs' breach of express and implied warranty, breach of the covenant of good faith 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 1 of 30 PageID: 901
2 

and fair dealing, and injunctive relief claims but denies the motion with respect to all other 

claims. 

I. BACKGROUND 

The following facts are taken from Plaintiff’s Complaint and, for the purposes of this 

Rule 12(b)(6) motion, the Court takes Plaintiffs' version of events to be true. In this section, I 

provide a brief overview of Plaintiffs' allegations, reserving a more detailed description for my 

discussion of the Defendant's legal challenges in the analysis section of this Opinion. 

Each of the plaintiffs purchased a color laser printer manufactured by Defendant. 

Compl., ¶ 3. According to the FAC, this type of printer contains three "independent" color toner 

cartridges in yellow, magenta, and cyan. Id. at ¶ 2. Plaintiffs allege that when any one of the 

toner color cartridges is depleted, a "toner life end" message is displayed on the printer indicating 

which color must be replaced. Id. Importantly, Plaintiffs further allege, that not just one, but all 

three color toner cartridges, must be replaced in order for the printer to continue to print in color. 

Id. "As a result, consumers are forced to buy not one, but three replacement color toner 

cartridges, in order to render the printers operable," Plaintiffs assert. Id. Each plaintiff avers that 

he or she personally incurred unforeseen costs due to this alleged defect; each time one of the 

independent color toner cartridges became depleted, he or she was "forced to purchase not only a 

replacement . . . color toner cartridge for the color that had been exhausted, but two other new 

toner color cartridges for the other two colors." Id. at ¶¶ 3-9. 

Plaintiffs further assert that, prior to and at the time they purchased the subject printers, 

Defendant misrepresented the amount of pages of printing that they would receive from each 

independent color toner cartridge. According to Plaintiffs, the user manual ("User's Guide" or 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 2 of 30 PageID: 902
3 

"manual")1 that accompanied their printers indicates that each of the color cartridges should print 

“1500 pages at 5% coverage (A4 or Letter size)” or that each “approx. yields [1500 pages] based 

on 5% page coverage (Letter).” Id. at ¶ 22. "The manual further explains that when the ink has 

been exhausted in any one particular cartridge a message will be displayed indicating 'toner life 

end' indicating which particular color cartridge must be replaced in order [for] the printer [to] 

continue to operate." Id. (citing User's Guide at 3) (emphasis added). Plaintiffs contend that this 

statement constitutes both a misrepresentation and an omission—by stating that the light will 

indicate which color needs to be replaces, Defendant misrepresented to purchasers that only one 

cartridge needed to be replaced and, in terms of an omission, Defendant failed to inform 

Plaintiffs that all three color cartridges would need to be replaced when one cartridge had 

reached its toner life end. See id. at ¶¶ 22-23.2

 Plaintiffs point to additional physical indicators 

on the printer itself, and statements in the User Guide, that they allege reinforce this 

misrepresentation and omission. Those additional facts are discussed in more detail herein. 

Dissatisfied with their purchases, and seeking to recoup the unforeseen costs they have 

incurred, Plaintiffs seek injunctive relief and compensatory damages for themselves and as 

representatives of a putative class. Plaintiffs seek to establish a nationwide class with statespecific subclasses corresponding to the residences of the Plaintiffs at the time they purchased 

                                                           

1

 Plaintiff attached a copy of the manual, which is titled "Brother's Laser Printer User's 

Guide," to their complaint. FAC, Exh. A. Because the manual was attached as an exhibit to the 

complaint, and the Plaintiffs rely upon the manual therein, the Court may consider its contents in 

ruling on a motion to dismiss. See In re Rockefeller Center Properties, Inc. Securities Litig., 184 

F.3d 280, 287 (3d Cir. 1999).

2

 Plaintiffs also assert that Defendant engaged in an unconscionable practice by 

"knowing[ly] marketing . . . printers designed to shut down when only one of three color 

Cartridges is emptied and to remain useless until all three Cartridges have been replaced ...." 

FAC at ¶ 43. Because Defendant does not specifically challenge this alleged unlawful conduct in 

its motion to dismiss, I do not elaborate further upon that allegation. Nor do I make a ruling as to 

the legal sufficiency thereof. 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 3 of 30 PageID: 903
4 

their printers: New Jersey (DiCuio), California (Zadeh), Pennsylvania (Steuer), Illinois (Bryant), 

Indiana (Pociluyko), and Florida (Self and Albanese). The causes of action asserted in the FAC 

are breach of implied and express warranties, breach of covenant of good faith and fair dealing, 

violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq ("NJCFA") and 

California, Pennsylvania, Illinois, Indiana, and Florida consumer fraud legislation, as well as 

violations of the California Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750 et 

seq. To be clear, the NJCFA claim is asserted by all defendants both individually and as putative 

class members for the nationwide class whereas the other state consumer fraud claims are 

asserted only by the plaintiffs who resided in that state at the time of purchase. Plaintiffs seek to 

ultimately certify subclasses for those states. Defendant now moves to dismiss all the claims 

asserted in the FAC. 

II. STANDARD OF REVIEW 

 When reviewing a motion to dismiss on the pleadings, courts "accept all factual allegations 

as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, 

under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. 

County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation and quotations omitted). In Bell 

Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the 

Supreme Court clarified the 12(b)(6) standard. Specifically, the Court "retired" the language 

contained in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a 

complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that 

the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 

Id. at 1968 (quoting Conley, 355 U.S. at 45-46). Instead, the factual allegations set forth in a 

complaint "must be enough to raise a right to relief above the speculative level." Id. at 1965. As 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 4 of 30 PageID: 904
5 

the Third Circuit has stated, "[t]he Supreme Court's Twombly formulation of the pleading 

standard can be summed up thus: 'stating ... a claim requires a complaint with enough factual 

matter (taken as true) to suggest' the required element. This 'does not impose a probability 

requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable 

expectation that discovery will reveal evidence of the necessary element." Phillips, 515 F.3d at 

234 (quoting Twombly, 127 S.Ct. at 1965). 

In affirming that Twombly standards apply to all motions to dismiss, the Supreme Court 

recently explained the principles. "First, the tenet that a court must accept as true all of the 

allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 

S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 

(3d Cir. 2009). "Second, only a complaint that states a plausible claim for relief survives a 

motion to dismiss." Id. at 1950. Therefore, "a court considering a motion to dismiss can choose 

to begin by identifying pleadings that, because they are no more than conclusions, are not 

entitled to the assumption of truth." Id. Ultimately, "a complaint must do more than allege the 

plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." 

Fowler, 578 F.3d at 211. 

III. DISCUSSION

As noted, Plaintiffs bring several causes of action against Defendant: breach of implied 

and express warranties, breach of covenant of good faith and fair dealing, violations of the 

NJCFA and other states' consumer fraud statutes, including violations of the CLRA. Because the 

NJCFA claim is asserted by all defendants both individually and as putative class members for 

the nationwide class, I address that claim first. I then turn to other states' consumer fraud statutes 

and the CLRA. Finally, I address the remaining state law claims. 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 5 of 30 PageID: 905
6 

A. NJCFA 

 The New Jersey Consumer Fraud Act proscribes certain misrepresentations and 

omissions by commercial sellers. It expressly bars 

[t]he act, use or employment by any person of any unconscionable 

commercial practice, deception, fraud, false pretense, false 

promise, misrepresentation, or the knowing, concealment, 

suppression, or omission of any material fact with intent that others 

rely upon such concealment, suppression or omission, in 

connection with the sale or advertisement of any merchandise or 

real estate, or with the subsequent performance of such person as 

aforesaid, whether or not any person has in fact been misled, 

deceived or damaged thereby, is declared to be an unlawful 

practice . . . . 

N.J.S.A. § 56:8-2. "To state a cause of action under the [NJ]CFA, a plaintiff must allege: (1) an 

unlawful practice by the defendants; (2) an ascertainable loss by plaintiff; and (3) a causal nexus 

between the first two elements—defendants' allegedly unlawful behavior and the plaintiff's 

ascertainable loss." Arcand v. Brother Intern. Corp., 673 F.Supp.2d 282, 296 (D.N.J. 2009) 

(quoting Parker v. Howmedica Osteonics Corp., No. 07–02400 (JLL), 2008 WL 141628, at *2 

(D.N.J. Jan. 14, 2008)). 

As the NJCFA is a fraud-based statute, the heightened pleading standard of Rule 9(b) 

applies. See F.D.I.C. v. Bathgate, 27 F.3d 850, 876 (3d Cir. 1994). In Frederico v. Home Depot, 

507 F.3d 188 (3d Cir. 2007), the court elucidated what must be alleged to satisfy this heightened 

pleading standard: 

Pursuant to Rule 9(b), a plaintiff alleging fraud 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. 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 6 of 30 PageID: 906
7 

Id. at 200 (internal citations omitted). With these precepts in mind, I now turn to the elements of 

Plaintiffs' NJCFA claim. 

 1. Unlawful Conduct

 The common thread that pervades all types of unlawful conduct under the NJCFA is 

"[its] capacity to mislead." Cox v. Sears Roebuck & Co., 138 N.J. 2, 17, 647 A.2d 454 (1994) 

(citing Fenwick v. Kay Am. Jeep, Inc., 72 N.J. 372, 378, 371 A.2d 13 (1977)). Apart from this 

common characteristic, however, there are several differences between misrepresentations and 

omissions. See Leon v. Rite Aid Corp., 340 N.J.Super. 462, 468, 774 A.2d 674 (App. Div. 2001) 

("This statutory scheme distinguishes between wrongs committed by affirmative acts and wrongs 

committed by a failure to act"). For one, misrepresentations do not require a showing of intent or 

even actual deceit or fraud. Cox, 138 N.J. at 17-18; Leon, 340 N.J.Super. at 468. See also 

Gennari v. Weichert Co. Realtors, 148 N.J. 582, 605, 691 A.2d 350 (1997) ("One who makes an 

affirmative misrepresentation is liable even in the absence of knowledge of the falsity of the 

misrepresentation, negligence, or the intent to deceive.") Moreover, the misrepresentation need 

not be one of material fact. Arcand, supra at 297. In contrast, omissions consist of (1) 

knowingly concealed (2) material facts (3) concealed with the intention that the consumer rely 

upon the concealment. Judge v. Blackfin Yacht Corp., 357 N.J. Super. 418, 426, 815 A.2d 537 

(App. Div. 2003) (citing Feinberg v. Red Bank Volvo, Inc., 331 N.J.Super. 506, 511, 752 A.2d 

720 (App. Div. 2000)). 

 Here, Plaintiffs allege that Defendant misrepresented that, when a "toner life end" signal 

is displayed on the printer, only the color cartridge designated in the signal need to be replaced in 

order for the printer to continue printing in color: 

The manual . . . explain[s] that if, for example, a light turns on 

above the letter “y” in a certain panel, it will indicate that the 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 7 of 30 PageID: 907
8 

yellow ink has been used up and that it must be replaced with a 

new cartridge containing yellow ink. . . . The manual further 

explains that when the ink has been exhausted in any one particular 

cartridge a message will be displayed indicating “toner life end” 

indicating which particular color cartridge must be replaced in 

order that the printer continue to operate. Thus, both the printer 

itself and the messages it provides on its panel and the user manual 

leave [sic] the consumer to believe that when the ink of any one 

color has been used up, replacement of that color alone will be 

sufficient to restore the printer to its full capabilities. In fact, this is 

untrue. 

FAC at ¶ 22, 24. Seemingly as the flip side of this same coin, Plaintiffs allege that Defendant 

knowingly concealed, i.e., omitted, that all three color toner cartridges would need to be replaced 

in order to restore full functionality once one cartridge is exhausted. Id. at ¶ 43 ("The failure to 

state the nature of the design of the Printers with respect to the need to replace three Cartridges 

when only one has been exhausted represents an omission of material fact.") 

As an initial matter, I address Defendant's general argument that Plaintiffs' NJCFA claim 

mimics that already rejected by my decision in Arcand, supra, another Brother printer case 

which held that a plaintiff who purchases a printer with the belief that he or she is entitled to 

receive a certain number of specified pages from each toner cartridge must plead specific facts 

averring, inter alia, what print setting the plaintiff used, how many pages the plaintiff was able to 

print with the cartridge, and what types of documents the plaintiff printed.3

 Arcand, 673 

F.Supp.2d at 301. According to Defendant, the rationale underlying my decision in Arcand was 

that a printer user manual that states how many pages a user may receive does not guarantee that 

a user will receive a set number of pages but, rather, provides an estimate of how many pages the 

                                                           

3

 As an aside, the Court notes that while Defendant seems to suggest in its briefing that 

there have been other similar decisions on the merits, none of the cases cited by Defendant (other 

than Arcand) resulted in published or unpublished decisions. The bulk of the cases were either 

voluntarily withdrawn by the plaintiffs or otherwise resolved. Hence I limit my discussion of 

Defendant's argument to the Arcand case. 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 8 of 30 PageID: 908
9 

user can expect to receive when printing certain types of documents with certain settings. Thus, 

a user who complains of receiving less than he or she bargained for must allege the above-listed 

particularized facts to support his or her theory. See Def. Open. Br. at 1, n.1.

Contrary to Defendant's argument, Arcand does not dictate the result here. As Defendant 

acknowledges, Arcand held that the plaintiffs in that case sufficiently plead unlawful conduct yet 

I dismissed the NJCFA claim on ascertainable loss grounds. It is clear from my decision that my 

requiring more particularized facts related solely to the plaintiffs' ascertainable loss allegations: 

Plaintiffs do not allege what they did receive, i.e., an amount of 

pages less than what the manual stated, nor do they allege what 

spurred them to believe that the printer and its cartridges were 

supposed to produce more than promised in the user manual. Thus, 

this Court cannot determine what loss, if any, Plaintiffs sustained 

as they fail to allege in the Complaint any particulars as to their 

own experiences with [Defendant's] printers and cartridges. 

Id. at 301. My decision, further, granted those plaintiffs the opportunity to replead "since 

Plaintiffs could potentially plead ascertainable loss by providing this Court with factual 

allegations concerning their individual experiences with their printers and the number of pages 

they received." Id. at 303. The plaintiffs repled, but still failed to sufficiently allege their 

ascertainable losses and I dismissed their amended claims with prejudice. See Arcand v. Brother 

Intern. Corp., Civil Action No. 3:07–cv–4987, 2010 WL 3907333, *11 (D.N.J. Sept. 29, 2010). 

In connection with my ascertainable loss analysis in that second decision, I noted that there were 

no allegations to support Plaintiffs' theory that Defendant guaranteed them a certain number of 

printed pages per cartridge. Id.

Here, unlike the plaintiffs in Arcand, Plaintiffs have not hinged their suit on the number 

of pages they expected to receive per cartridge. Their NJCFA claim is rooted in the User Guide's 

representation that when the "toner life end" signal with the accompanying designation of a letter 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 9 of 30 PageID: 909
10 

corresponding to one cartridge color is displayed, only that specific cartridge need be replaced—

not also the other two undesignated color cartridges. As I read Plaintiffs' First Amended 

Complaint, they allege the number of pages listed in the User's Guide for each cartridge solely to 

further support their alleged reasonable belief that they would need to replace a cartridge only 

when that cartridge's contents were exhausted, as indicated by the signal on the printer. In other 

words, Plaintiffs' allegations essentially ask the question: if all three color toner cartridges must 

be replaced when one cartridge is depleted, regardless of the depletion level of the other two 

cartridges, then why would Defendant state in the User Manual that each color cartridge will 

print up to 1,500 pages? While the page-specific allegations in the FAC may appear somewhat 

inartfully drafted, Plaintiffs' allegations, when read as a whole, present unmistakably 

distinguishable allegations from those in Arcand.

Though the allegations differ, there is one noteworthy similarity worth mentioning 

between Arcand and the instant complaint: both sets of plaintiffs sufficiently pled unlawful 

conduct under the NJCFA. The plaintiffs in Arcand alleged that Defendant "formatted its 

printers with a function that would compel its customers to prematurely and unnecessarily buy 

more of its toner cartridges" and I held that, assuming such allegations were true, the plaintiffs 

sufficiently pled that Defendant misrepresented that its cartridges were empty when, in fact, they 

were not. Id. at 299. Likewise, here, Plaintiffs allege that Defendant designed its printers with a 

function that would compel its customers to prematurely and unnecessarily buy two additional 

color toner cartridges each time one color cartridge was exhausted. In my view, these allegations 

are also sufficient to allege unlawful conduct under the NJCFA. “Affirmative acts prohibited by 

the Consumer Fraud Act, including conduct such as alleged in our situation, require no showing 

of intent.” Gross v. Johnson & Johnson–Merck Consumer Pharm., 303 N.J.Super. 336, 346, 696 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 10 of 30 PageID: 910
11 

A.2d 793 (Law Div. 1997) (citing Cox, 138 N.J. 2, 647 A.2d 454). Moreover, the alleged 

statements are not factually accurate and were made in the connection or sale of merchandise. 

Therefore, I conclude that Plaintiffs have sufficiently alleged a misrepresentation constituting 

unlawful conduct under the NJCFA.4

2. Ascertainable Loss

 Defendant spends significant time in its briefing on the ascertainable loss element. The 

term "ascertainable loss" is found in the text of the NJCFA, which provides that 

[a]ny person who suffers any ascertainable loss of moneys or 

property, real or personal, as a result of the use or employment by 

another person of any method, act, or practice declared unlawful 

under this act . . . may bring an action or assert a counterclaim 

therefor in any court of competent jurisdiction. 

N.J.S.A. 56:8–19 (emphasis added). To demonstrate an ascertainable loss, the plaintiff must 

establish an “actual loss,” that is “quantifiable or measurable,” or “real and demonstrable,” as 

opposed to “hypothetical or illusory” or “speculative.” Thiedemann v. Mercedes-Benz, USA, 

LLC, 183 N.J. 234, 248, 252, 255, 872 A.2d 783 (2005). 

While I have previously noted that "[t]here is little that illuminates the precise meaning 

that the Legislature intended in respect of the term 'ascertainable loss' in [the NJCFA], and New 

Jersey courts have been chary to ascribe the term a precise meaning," Arcand, supra at 300, there 

are several guiding precepts that make its application simple in this case. In NJCFA cases, the 

New Jersey Supreme Court has indicated that the rule governing the measurement of damages 

should be “flexible” depending on the circumstances. Zeliff v. Sabatino, 15 N.J. 70, 75 (1954) 

(internal quotation marks and citation omitted). In this connection, the Court has explained that 

there are generally two methods by which a plaintiff may prove loss—the benefit-of-the-bargain 

                                                           

4

 Because I conclude that Plaintiffs sufficiently allege a misrepresentation, I do not address 

whether their allegations sufficiently allege a knowing omission of material fact. 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 11 of 30 PageID: 911
12 

rule, or the out-of-pocket rule. Id. at 75; Thiedemann, 183 N.J. at 248. See also Marcus v. BMW 

of North America, LLC, --- F.3d ----, 2012 WL 3171560 at *18 (3d Cir. 2012). The out-ofpocket rule applies when a plaintiff can demonstrate that he paid money, and is now, out-ofpocket. The benefit-of-the-bargain rule applies when a plaintiff cannot demonstrate an out-ofpocket loss, but seeks to recoup what it will cost for him to replace what he reasonable believed 

he was purchasing. See Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 18-19 (2004). See also Onyx 

Acceptance Corp. v. Trump Hotel & Casino Resorts, Inc., 2008 WL 649024, *17 (N.J. App. Div. 

Mar. 12, 2008) ("[I]n cases involving the purchase of goods or services, an ascertainable loss is 

established where the plaintiff receives 'something less than, and different from,' what he or she 

reasonably expected to receive.") (citing Miller v. Am. Family Publishers, 284 N.J.Super. 67, 87-

91, 663 A.2d 643 (Ch. Div. 1995)). 

Here, Plaintiffs proceed under an out-of-pocket theory of recovery. Plaintiff DiCuio 

alleges that he expended $640 in "new toner color cartridges for the other two colors" as he was 

forced to purchase those additional cartridges "multiple times" during his ownership of the 

printer. FAC at ¶ 3. Similarly, Plaintiff Bryant alleges that she spent "$1,053.86 in toner for the 

printer over the course of approximately one year from April 2010 to September 2011." Id. at ¶ 

8. And, Plaintiff Steuer incurred $337.67 in out-of-pocket costs. Id. at ¶ 9. The remaining 

Plaintiffs—Self, Albanese, Zadeh, and the Pociluykos—also allege that they purchased two nonexhausted toner cartridges each time a toner life end message indicated that one color was 

exhausted, however, these plaintiffs do not specify the exact amount they spent. See id. at ¶¶ 4-

7. While these latter plaintiffs do not specify the exact amount that they expended for the color 

toner cartridges that were not depleted, the exact amount need not be plead in the complaint but 

can be established by proofs later in the proceeding. See Thiedemann, supra at 249 (noting that 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 12 of 30 PageID: 912
13 

ascertainable loss "must be presented with some certainty demonstrating that it is capable of 

calculation, although it need not be demonstrated in all its particularity to avoid summary 

judgment."); Kleinman v. Merck & Co., Inc., 417 N.J.Super. 166, 182 (Law. Div 2009) ("[T]he 

precise amount of damages need not be known as long as the damages are measurable."). 

Defendant's contention that these allegations are insufficient is based on its unfounded 

assumption that Plaintiffs proceed under a benefit-of-the-bargain theory like the plaintiffs in 

Arcand. Defendant argues in its briefing that alleging the "price of replacement toner cartridges 

that they used for printing, without describing the performance they received from the cartridge 

being replaced" fails to pled ascertainable loss because Plaintiffs must "quantify the difference in 

value between the promised product and the actual produc[t] received." Def. Reply at 10 

(quoting Lieberson v. Johnson & Johnson Consumer Companies, Inc., --- F.Supp.2d ----, 2011 

WL 4414214, *7 (D.N.J. Sept. 21, 2011).5

 I noted, in Arcand, that the plaintiffs in that case 

alleged a benefit-of-the-bargain theory in their amended complaint by averring that “he or she 

[bought] a cartridge that secretly has a fixed life, while perhaps for the same price at the same 

rated yield, the cartridges of some other manufacturers do not interfere with the use of all of the 

toner and do not arbitrarily limit use.” Arcand, 2010 WL 3907333 at *10. 

Here, unlike the plaintiffs in Arcand, Plaintiffs have alleged that they incurred out-ofpocket costs as a result of Defendant's misrepresentations as to the need to replace non-exhausted 

color toner cartridges. As such, the FAC here must be assessed in accordance with case law 

                                                           

5

 Defendant appears to base its belief that Plaintiffs are proceeding under a benefit-of-thebargain theory on a statement in Plaintiffs' opposition brief that "the value of Plaintiffs' 

Cartridges and Printers is diminished because they are not receiving the represented yield of the 

toner." Opp. at 11. Whatever is to be made of this statement, my analysis focuses on the 

allegations in the FAC and not on statements in Plaintiffs' brief. See Bell v. City of Philadelphia, 

275 Fed.Appx. 157, 160 (3d Cir. 2008) (noting that a plaintiff cannot amend the complaint 

through briefing). 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 13 of 30 PageID: 913
14 

addressing out-of-pocket losses rather than, as Defendant would have it, benefit-of-the-bargain 

cases. It is the plaintiff's theory of loss, as set forth in the complaint, that dictates which 

ascertainable loss formula loss applies at the motion to dismiss stage. 

In Lee v. Carter-Reed Co., L.L.C., 203 N.J. 496 (2010), the New Jersey Supreme Court 

explained that the purchase price of a product constitutes an out-of-pocket loss. Id. at 528. 

Similarly, in my recent decision in Hammer v. Vital Pharmaceuticals, Inc., Civil Action No. 11–

4124, 2012 WL 1018842 (D.N.J. Mar. 26, 2012), I concluded that a purchaser of a dietary 

supplement misled by the seller's statement that the supplement had been "certified by science" 

sufficiently pled ascertainable loss under the NJCFA by asserting that he paid the purchase price 

for the product and that he "would not have purchased" the product but for the Defendant's 

allegedly false statement. Id. at *9. So too, here, I conclude that Plaintiffs have sufficiently pled 

out-of-pocket losses under the NJCFA by asserting that they expended funds to purchase 

additional color toner cartridges to replace the non-exhausted cartridges.

3. Causal Nexus

Finally, Defendant argues, albeit in summary fashion, that Plaintiffs have failed to allege 

a causal nexus between their alleged loss and the alleged misrepresentation. Defendant draws, 

again, from Arcand, pointing to language in that opinion that, to allege a causal nexus in a 

manner consistent Rule 9's heightened pleading standard, plaintiffs must assert when the alleged 

misrepresentations "were made or when the plaintiffs were exposed to the statements." 673 

F.Supp.2d at 303 (quoting Dewey v. Volkswagen, 558 F.Supp.2d 505, 526 (D.N.J. 2008)). 

Surprisingly, Defendant does not appear to acknowledge in its papers that the above-quoted 

language in Arcand is actually a quote from another decision that I referenced in setting forth the 

black letter law; the quote does not express Arcand's holding. See id.

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 14 of 30 PageID: 914
15 

Defendant fails to acknowledge my actual holding in Arcand that the plaintiffs in that 

case had sufficiently pled causal nexus by asserting "that they would not have purchased new 

cartridges for their . . . printers had it not been for [the] misrepresentations that the toner 

cartridge is empty." Id. at 304. While there are other differences between Arcand and this case, 

noted supra, the allegations of causal nexus here mirror those in Arcand. Plaintiffs assert that 

"[h]ad [they] known of the products defect, i.e. that it is necessary to replace all three color 

Cartridges when the ink in only one has been exhausted, they would not have purchased the 

products." FAC at ¶ 62.6 Hence I find it perplexing that Defendant would point to Arcand in 

support of its contention that Plaintiffs have not sufficiently alleged a causal nexus here. 

Contrary to Defendant's argument, I conclude that Plaintiffs have met their pleading obligation.7

B. Other State Consumer Fraud Statutes

 Defendant's challenge to Plaintiffs' California, Pennsylvania, Illinois, Indiana, and 

Florida consumer fraud claims is derivative of its NJCFA challenge in that Defendant argues that 

Plaintiffs have failed to sufficiently allege actual losses "[f]or the same reasons Plaintiffs fail to 

                                                           

6

 While this allegation is made in the context of Plaintiffs' CLRA claim, the Court 

considers Plaintiffs' FAC in its entirety. Argueta v. U.S. Immigration and Customs Enforcement, 

643 F.3d 60, 74 (2011) ("When considering the sufficiency of a pleading on motion to dismiss, a 

court must determine whether the complaint as a whole contains sufficient factual matter to state 

a facially plausible claim ....") 

7

 Finally, I note Defendant's argument that the printer does not become completely 

inoperable when the toner life end message appears because the user can still choose to print in 

"mono" (black only) mode. This is beside the point. Plaintiffs allege that the User's Guide 

creates the inaccurate perception that replacing only the one depleted cartridge will restore the 

printer to its "full capabilities." FAC at ¶ 24. I read this allegation as meaning that the user is 

led to believe that he can continue to print in black or in color after replacing the one depleted 

cartridge. For this reason, it is irrelevant whether Plaintiffs alleged the print setting to which 

they set their printers once the toner life end message was displayed, and I need not address the 

parties' arguments relating to Plaintiffs' attempt to supplement the FAC by specifying the print 

setting via declarations accompanying their opposition papers. In my ruling, I rely on the FAC 

allegations and not their certifications. 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 15 of 30 PageID: 915
16 

allege an ascertainable loss under the NJCFA ...." Def. Open. Br. at 36. Because I conclude that 

Plaintiffs have sufficiently pled ascertainable loss, Defendant's challenge to these claims 

necessarily fails. 

C. Remaining State Law Claims 

Defendant next challenges Plaintiffs' express and implied warranty, and breach of 

covenant of good faith and fair dealing, claims, along with Plaintiffs request for injunctive relief. 

For the implied warranty claim, Plaintiffs concede that this claim must be dismissed. Pl. Opp. at 

20. As for the other claims, however, the Plaintiffs dispute dismissal. Applying New Jersey 

law8

, I conclude that dismissal is also appropriate on Plaintiffs' breach of express warranty, 

breach of the covenant of good faith and fair dealing, and injunctive relief claims. 

1. Breach of Express Warranty

“Express warranties in New Jersey are governed by Article 2 of the state's Uniform 

Commercial Code.” Henderson v. Volvo Cars of North America, LLC, Civ. Action No. 09–

4146(DMC), 2010 WL 2925913 at * 7 (D.N.J. Jul. 21, 2010) (citing N.J.S.A. 12A:2–101 et seq). 

Section 2–313 provides, in pertinent part: 

(1) Express warranties by the seller are created as follows: 

(a) Any affirmation of fact or promise made by the seller to the 

buyer which relates to the goods and becomes part of the basis of 

the bargain creates an express warranty that the goods shall 

conform to the affirmation or promise. 

(b) Any description of the goods which is made part of the basis of 

the bargain creates an express warranty that the goods shall 

conform to the description. 

N.J.S.A. 12A:2-313. 

                                                           

8

 I apply New Jersey to these state law claims as the parties do not dispute application of 

the law of the forum state for purposes of this motion. 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 16 of 30 PageID: 916
17 

To adequately plead a breach of express warranty claim under New Jersey law a plaintiff 

"must allege (1) a contract between the parties; (2) a breach of that contract; (3) damages flowing 

therefrom; and (4) that the party stating the claim performed its own contractual obligations." 

Cooper, 374 Fed.Appx. at 253 (quoting Frederico, 507 F.3d at 203). As suggested by this 

recitation of the elements of a breach of express warranty claim, the threshold consideration is 

whether there exists a contract between the parties. Plaintiffs allege that the operative "contract" 

is found in "both the materials provided with the purchase of Printers sold by the Defendant and 

replacement color Cartridges sold in that the color Cartridges ...." FAC at ¶ 30. In other words, 

Plaintiffs contend that the User's Guide and the printer and cartridge product packaging formed 

an agreement that serves as the basis for their express warranty claim. 

Defendant, in contrast, argues that the Limited Warranty9

 attached to Plaintiffs' 

Complaint is the only express contract entered into between the parties and, importantly, that 

warranty expressly disclaims any additional express warranties. Defendant is correct that the 

Limited Warranty makes clear that it "is the only warranty that Brother is giving for [the printer]. 

It is the final expression and the exclusive and only statement of Brother's obligations to you." 

FAC, Exh. F at col. 4. The warranty further, and exhaustively, provides: 

THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER 

WARRANTIES, WRITTEN OR ORAL, WHETHER 

EXPRESSED BY AFFIRMATION, PROMISE, DESCRIPTION, 

DRAWING, MODEL OR SAMPLE. ANY AND ALL 

WARRANTIES OTHER THAN THIS ONE, WHETHER 

EXPRESS OR IMPLIED, INCLUDING IMPLIED 

WARRANTIES OF MERCHANTABILITY AND FITNESS FOR 

A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED. 

Id. 

                                                           

9

 Plaintiffs do not dispute that this Court may consider the terms of this document on the 

instant motion to dismiss because it is integral and, indeed, attached to, their complaint. 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 17 of 30 PageID: 917
18 

New Jersey law generally recognizes disclaimers, see N.J.S.A. 12A:2-316, and will 

enforce them as long as they are clear and conspicuous. See Realmuto v. Straub Motors, Inc., 65 

N.J. 336, 341-42 (1974); see also Viking Yacht Co. v. Composites One LLC, 496 F.Supp.2d 462, 

470 (D.N.J. 2007) ("Disclaimers of express warranties must be clear and conspicuous."); 27 

N.J.Prac. §2-316, Form 1 (compiling New Jersey case law). Here, I conclude that the Limited 

Warranty language—particularly, the language in all caps—conspicuously disclaims any other 

express warranty other than the Limited Warranty itself. Accord Viking Yacht, supra at 470. 

Plaintiffs have not alleged that this language was hidden on the back side of the warranty, or 

otherwise obscured. Compare Realmuto, 65 N.J. at 341-42. Nor have they argued that, even if 

the language is clear and conspicuous, the disclaimer should nonetheless be deemed 

unenforceable because it is "unreasonably inconsistent" with the express warranties given. 

Compare Viking Yacht, supra at 470-71 (holding that summary judgment was inappropriate 

because disclaimer of express warranty based on extra-warranty promise was inoperable in light 

of vagueness of the express warranty language and the potential that the breadth of the express 

warranty would encompass the challenged misrepresentation); see Viking Yacht Co., Inc. v. 

Composite One, LLC, 385 Fed.Appx. 195 (3d Cir. 2010) (discussing in the context of reviewing 

the district court's jury instructions on the express warranty claim, the district court's earlier 

summary judgment ruling on that same claim). 

Plaintiffs' primary approach to opposing the disclaimer is to cite the general law that 

warranty disclaimer language "must be construed against the seller," Pl. Opp. at 16 (quoting 

Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 373 (1960)), but these general cites are not 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 18 of 30 PageID: 918
19 

helpful; they do not elucidate whether the instant disclaimer is clear and conspicuous.10 Because 

I find the disclaimer language clear on its face, and Plaintiffs have not otherwise pointed to an 

unreasonable inconsistency,11 I hold that the Limited Warranty disclaims any other oral or 

written express warranties and, consequently, treat Plaintiffs' breach of warranty claim as 

asserting a breach based upon the written warranty rather than the User's Guide and printer and 

cartridge product packaging.12

Focusing solely on the Limited Warranty, then, it is clear that Plaintiffs' express warranty 

claim must be dismissed. New Jersey has adopted the Uniform Commercial Code's (“UCC”) 

notice requirement for an express warranty claim. Luppino v. Mercedes–Benz USA, LLC, Civ. 

Action No. 09–5582, 2011 U.S. Dist. LEXIS 65495, at *7, 2011 WL 2470625 (D.N.J. Jun. 20, 

                                                           

10 Plaintiffs further argue that the Limited Warranty is "defective" because the warranty 

covers only "defects and materials in workmanship" and that a reasonable consumer might 

presume that the warranty is made with Defendant's Japanese manufacturing entity, Brother 

Industries, Ltd., of Nagoya, Japan, as opposed to Defendant itself. Putting aside that Plaintiffs 

have not cited any case law or other authority in support of this argument, Plaintiffs themselves 

acknowledge that Defendant is designated as the copyright holder on the warranty, thus, the 

Court finds Plaintiffs' argument specious and wholly without merit. 

11 In this regard, I question whether Plaintiffs could reasonably argue that the alleged 

promise—that a purchaser would be required to replace each independent color toner cartridge 

only once a "toner life end" message for that specific cartridge is displayed—is inconsistent with 

an express warranty that covers only defects in material or workmanship. Underlying Plaintiffs' 

allegations is not that the "toner life end" message displays in error, but that the printer was 

intentionally designed to operate in such a fashion to force users to purchase the additional two 

color cartridges. Indeed, that Plaintiffs do not assert that the printer is defective serves as a 

separate basis for dismissing their breach of express warranty claim. See Cooper, supra at 243-

54 (affirming dismissal of claim where "the plain language of the Warranty covers only 

'manufacturing defects in materials and workmanship encountered in normal . . . noncommercial 

use of this product.' Cooper does not allege a manufacturing defect; indeed, he agrees his TV 

was manufactured as designed. His complaint is that the design deviated from Samsung's 

advertisements and packaging."). 

12 Because I conclude that Defendant disclaimed all other express warranties, I make no 

ruling on the parties' arguments as to whether Plaintiffs sufficiently alleged an express warranty 

based upon the User Guide or other documents pursuant to N.J.S.A. 12A:2-313. 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 19 of 30 PageID: 919
20 

2011); Joc, Inc. v. Exxon mobil Oil Corp., Civ. Action No. 08–5344, 2010 WL 1380750, at *4 

(D.N.J. Apr.1, 2010); Slack v. Suburban Propane Partners, L.P., Civ. Action No. 10–2548, 2010 

WL 5392845, at *4–5 (D.N.J. Dec. 22, 2010). The notice requirement provides: “Where a tender 

has been accepted ... the buyer must within a reasonable time after he discovers or should have 

discovered any breach notify the seller of breach or be barred from any remedy.” N.J.S.A. 

12A:2–607(3)(a). Based upon this language, this statutory notice is a “condition precedent to 

filing any suit for breach of warranty.” Joc, 2010 WL 1380750 at *4. 

In this connection, the Third Circuit in Cooper, supra, upheld the dismissal of a New 

Jersey express warranty claim, similar to that alleged here, where the plaintiff alleged that 

Samsung, a television manufacturer, misrepresented that its television was able to receive a 

1080p signal via its HDMI input. In that case, the Samsung warranty provided that "[t]o receive 

warranty service, the purchaser must contact SAMSUNG for a problem determination and 

service procedures." Cooper, 374 Fed.Appx. at 253. The circuit held that the plaintiff's claim 

was subject to dismissal because he did not allege that he supplied that requisite notice to 

Samsung during the warranty period. Id. at 253-54. 

Likewise, here, Plaintiffs have not alleged that they provided the notice required by the 

Limited Warranty to Defendant. The warranty directs consumers to "[r]eport your issue to either 

our Customer Service Hotline . . . for Printers, or to a Brother Authorized Service Center within 

the applicable warranty period", FAC, Exh. F at col. 2 (emphasis in original), which is within 

"one year from the original purchase date." Id. at col. 1. See also id. at col. 2-3 ("If the problem 

reported . . . is covered by this warranty and if you first reported the problem . . . within the 

applicable warranty period, Brother . . . will evaluate your report of a possible defect ....") 

(emphasis added). Plaintiffs have not alleged that they reported their complaints to Defendant 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 20 of 30 PageID: 920
21 

within one year of purchasing their printers, thus, as was the result for the plaintiff in Cooper, 

Plaintiffs' express warranty claim here must be dismissed.13

2. Breach of Covenant of Good Faith and Fair Dealing 

The New Jersey Supreme Court "has determined that the implied duty of good faith and 

fair dealing means that neither party shall do anything which will have the effect of destroying or 

injuring the right of the other party to receive the full fruits of the contract; in other words, in 

every contract there exists an implied covenant of good faith and fair dealing.” R.J. Gaydos Ins. 

Agency, Inc. v. National Consumer Ins. Co., 168 N.J. 255, 277 (2001) (quoting Association 

Group Life, Inc. v. Catholic War Veterans, 61 N.J. 150, 153 (1972)) (internal quotation marks 

omitted). Through this doctrine, a court may impose conditions of fairness and justice where 

explicit contractual language effecting such considerations is lacking: "Where fairness and 

justice require, even though the parties to a contract have not expressed an intention in specific 

language, the courts may impose a constructive condition to accomplish such result when it is 

apparent that it is necessarily involved in the contractual relationship." Id. (quoting Palisades 

Properties, Inc. v. Brunetti, 44 N.J. 117, 130 (1965)). In short, the doctrine “permits the 

inclusion of terms and conditions which have not been expressly set forth in the written 

contract.” Seidenberg v. Summit Bank, 348 N.J.Super. 243, 257 (App. Div. 2002). In addition, 

the doctrine allows “redress for the bad faith performance of an agreement even when the 

defendant has not breached any express term.” Id. Moreover, it permits “inquiry into a party's 

exercise of discretion expressly granted by a contract's terms.” Id.

To adequately plead a breach of the implied covenant of good faith and fair dealing 

claim, a plaintiff must allege that the parties entered into an express or implied contract. Wade v. 

                                                           

13 Because I conclude that the breach of express warranty claim must be dismissed for lack 

of notice, I do not discuss Defendant's other arguments in support of dismissal of that claim. 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 21 of 30 PageID: 921
22 

Kessler Institute, 172 N.J. 327 (2002).14 District of New Jersey cases have countenanced breach 

of implied covenant claims based on "a contractual relationship with Defendants in the form of 

the written warranty included with . . . purchase ...." Gotthelf v. Toyota Motor Sales, U.S.A., 

Inc., Civ. Action No. 11-4429, 2012 WL 1574301, *12 (D.N.J. May 3, 2012); see also Payne v. 

Fujifilm U.S.A., Inc., Civil Action No. 07-385, 2007 WL 4591281 (D.N.J. Dec. 28, 2007). But, 

here, Plaintiffs do not allege that the express warranty formed the contractual relationship 

between it and Defendant. 

Indeed, it is not clear from the FAC what agreement Plaintiffs allege form the basis for 

the parties' contractual relationship. The FAC refers generally to an "agreement to purchase" in 

the context of the breach of implied covenant claim: 

Plaintiffs and other Class members agreed to buy the Printers and 

Cartridges from the Defendant. Within this agreement to purchase 

there was an implied covenant that the Defendant would conduct 

its business with consumers in good faith and would deal fairly 

with the Plaintiffs and other Class members. 

FAC at ¶ 36. Elsewhere in the FAC, however, Plaintiffs rely extensively upon the User Guide, 

and they appear to argue in their opposition brief that the User Guide could form the basis for 

                                                           

14 Plaintiffs cite Payne v. Fujifilm U.S.A., Inc., Civil Action No. 07-385, 2007 WL 4591281 

(D.N.J. Dec. 28, 2007), for the proposition that they are not required to allege any specific 

contractual relationship. Although Payne contains dicta that could be read to support Plaintiffs' 

contention, i.e., "[t]he lack of contractual relationship or privity does not automatically defeat a[n 

implied covenant] claim.", 2007 WL 4591281 at *10 n.7, the complaint in Payne specifically 

averred that a written express warranty formed the parties' contractual relationship in that case. 

Moreover, the New Jersey Supreme Court in Wade, supra, expressly rejected the argument that 

an implied covenant claim could lie absent an express or implied agreement. 172 N.J. at 345 

("To the extent plaintiff contends that a breach of the implied covenant may arise absent an 

express or implied contract, that contention finds no support in our case law.") “In the absence 

of a contract, there can be no breach of an implied covenant of good faith and fair dealing.” Id. 

(quoting Noye v. Hoffman-LaRoche, Inc., 238 N.J.Super. 430, 434 (App.Div.), certif. denied, 122 

N.J. 146 (1990)). 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 22 of 30 PageID: 922
23 

their implied covenant claim. See Pl. Opp. at 23 ("The consumer's expectation would clearly be 

that the printer's cartridge would print at least 1500 pages of color, since even Defendant's 

manual concedes that to be the case upon which the printer was sold.") Hence, for purposes of 

this analysis, I construe the complaint as alleging that the User Guide formed a contractual 

relationship between the parties.15

 Plaintiffs assert that Defendant "breached [the] implied covenant by selling to the 

Plaintiffs and other Class members Printers and Cartridges which were inherently defective in 

that the exhaustion of any one of three color Cartridges would require the replacement of all 

three color Cartridges." FAC at ¶ 38. Reading this allegation in connection with the User 

Guide's estimate that a user can expect to print up to 1,500 pages per color, Plaintiffs appear to 

be asserting that Defendant acted in bad faith when it made the statement in the User Guide 

because it knew that, by virtue of the toner life end mechanism, the printer would cease printing 

in color until all three color cartridges were replaced. 

If this is, indeed, what Plaintiffs intend to assert—that Defendant violated its duty to act 

in good faith by making such an misrepresentation—that sort of an allegation would not 

sufficiently state a breach of implied covenant of good faith and fair dealing claim under New 

Jersey law. As explained by the New Jersey Supreme Court in Wade, supra, an implied 

covenant of good faith claim cannot be based on a defendant's violation of an express contract 

term. 172 N.J. at 344 (noting that complaint allegations "erroneously suggests that in breaching 

a literal term of the [employment] manual, defendant also could be found separately liable for 

breaching the implied covenant of good faith and fair dealing when the two asserted breaches 

basically rest on the same conduct."); id. ("[T]he breach of the implied covenant arises when the 

                                                           

15 This is the only remaining potential contract as I have already dismissed the express 

warranty claim, and Plaintiffs agreed to the dismissal of their implied warranty claim. 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 23 of 30 PageID: 923
24 

other party has acted consistent with the contract's literal terms, but has done so in such a manner 

so as to 'have the effect of destroying or injuring the right of the other party to receive the fruits 

of the contract[.]") 

Moreover, while Plaintiffs appear to suggest that an electronic equipment's user guide 

creates a contractual relationship between them and Defendant, they have not cited to any legal 

authority for such a proposition. This Court's research revealed only one case addressing this 

sort of allegation, Donohue v. Apple, Inc., --- F.Supp.2d ----, 2012 WL 1657119 (N.D.Cal. May 

10, 2012). The plaintiff in Donohue challenged an alleged misrepresentation in Apple, Inc.'s 

("Apple's"), iPhone user manual that the signal meter on his phone would accurately depict 

signal strength. Id. at *12. He, specifically, argued that the user manual created an implied 

agreement to provide a working signal meter by stating that the “that the signal meter ... can be 

properly used to trace whether the user is within sufficient range of the cellular network." Id. 

Rejecting the plaintiff's argument that the manual could create an implied agreement, the 

court set forth several compelling reasons why that result did not attend under California law. 

First, the court reasoned, the user manual did not contain any “promises” that plaintiff could 

have “accepted,” but expressly stated that it merely provided directions for using the iPhone and 

described the phone's functions. Id. Second, the court found it critical that the plaintiff did "not 

even allege that he saw the [manual] before purchasing his iPhone, further undermining his claim 

that he accepted its terms as part of a contract of sale." Id. Finally, the court noted, nothing in 

the manual "reasonably suggest[s] that Apple intended to be bound by its provisions, which 

include wide-ranging instructions on topics like 'sending voice memos' and 'adding calendar 

events." Id. In short, the manual contained none of the indices of an offer, acceptance, or mutual 

assent. In terms of the implication of holding otherwise, the court further noted that "[o]n these 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 24 of 30 PageID: 924
25 

facts, adopting the position that an instructional manual is a contract would vastly expand the 

scope of a manufacturer's express and implied warranties, creating a perverse incentive for 

manufacturers to avoid including comprehensive manuals with their products." Id. at *14. 

Because the court concluded that the plaintiff did not sufficiently pled the existence of an 

agreement between himself and Apple, the implied covenant claim necessarily failed. Id. at *16. 

I find Donohue's rationale persuasive here. As explained by the New Jersey Supreme 

Court long ago, and relied upon by a court in this district to reject insufficiently pled implied 

contract allegations: 

[A] contract does not come into being unless there be a 

manifestation of mutual assent by the parties to the same terms; 

and, while the manifestation of mutual assent is usually had by an 

offer and an acceptance either in words or by conduct, it is 

elementary that there can be no operative acceptance by acts or 

conduct unless the offeree's assent to the offer according to its 

terms is thereby unequivocally shown. There must needs [sic] be 

an agreement—a “meeting of the minds” on the subject matter, to 

use a classic timehonored term, or there is no legally enforceable 

obligation. An expression of assent that modifies the substance of 

the tender, while it may be operative as a counter-offer, is yet not 

an acceptance and does not consummate a contract. In the very 

nature of a contract, acceptance must be absolute. If the 

contemplated agreement is to be bilateral, the “offeror and offeree, 

alike, must express agreement as to every term of the contract. The 

offeror does this in the offer; the offeree must do it in his 

acceptance.” Such is the nature of the contract. 

South Jersey Hosp., Inc. v. Correctional Medical Services, Civ. Action No. 02-2619 (JBS), 2005 

WL 1410860, *3 (D.N.J., June 15, 2005) (quoting Johnson & Johnson v. Charmley Drug Co., 

11 N.J. 526, 539 (1953)) (internal citations omitted). As this statement of the law makes clear, 

there must be unequivocal assent by both parties before a contract will be implied from the 

parties' statements or conduct. Here, as in Donohue, Plaintiffs have not alleged that there is any 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 25 of 30 PageID: 925
26 

such unequivocal language in the User's Guide, nor have they alleged that Defendant 

demonstrated through its conduct that it intended to be bound by the terms of the guide. 

Accordingly, I conclude that Plaintiffs have not sufficiently pled an agreement that could form 

the basis for an implied covenant of good faith claim and, consequently, their claim must be 

dismissed. 

3. Injunctive Relief 

Lastly, Defendant argues that Plaintiffs' claim for injunctive relief must be denied if the 

Court dismisses all of Plaintiffs' other claims. Needless to say, since I have not dismissed 

Plaintiffs' NJCFA claims, nor the other state consumer fraud statute claims, Defendant's 

argument cannot carry the day. Indeed, Plaintiffs argue in their opposition that their injunctive 

relief claim, while separately pled, is rooted in their state consumer fraud claims. 

Defendant additionally argues that Plaintiffs lack Article III standing to assert injunctive 

relief claims because they are now aware of Defendant's product design that is allegedly 

inconsistent with Defendant's representations and Plaintiffs, therefore, cannot assert that they 

will suffer future injury if the injunction—which would enjoin Defendant from selling more 

printers and cartridges "without the requisite disclosures"—is not granted. FAC at ¶ 89. "In 

order to have Article III standing to sue, a plaintiff bears the burden of establishing '(1) [an] 

injury-in-fact ... that is (a) concrete and particularized, and (b) actual or imminent, not 

conjectural or hypothetical; (2) a causal connection between the injury and the conduct 

complained of; and (3) [a likelihood] ... that the injury will be redressed by a favorable decision." 

McNair v. Synapse Group Inc., 672 F.3d 213, 223 (3d Cir. 2012). Defendant relies primarily on 

the Third Circuit's recent decision in McNair v. Synapse Group Inc., which held that former 

magazine subscription customers of Synapse Group Inc. ("Synapse") who had standing to bring 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 26 of 30 PageID: 926
27 

claims for monetary relief under the NJCFA lacked standing to bring a claim under that statute 

for injunctive relief because they could not demonstrate a likelihood of future harm. Id. at 225. 

Specifically, the circuit reasoned that the plaintiffs in McNair could be harmed again only 

if they repurchased subscriptions from the same service despite their knowledge of the service's 

allegedly untoward practices: 

Because Appellants are familiar with Synapse's practices as well as 

the various names under which it operates, it is a speculative 

stretch to say they will unwittingly accept a Synapse offer in the 

future. But even if they did, they would only be harmed if they 

were again misled by Synapse's subscription renewal techniques, 

which would require them to ignore their past dealings with 

Synapse. In short, Appellants ask us to presume they will be fooled 

again and again. While we cannot definitively say they won't get 

fooled again, it can hardly be said that Appellants face a likelihood 

of future injury when they might be fooled into inadvertently 

accepting a magazine subscription with Synapse and might be 

fooled by its renewal tactics once they accept that offer. 

Id. at 225 n.15. 

While McNair involved former customers, and the plaintiffs here still own and use their 

printers, I find the circuit's holding nonetheless dispositive here. The injunctive relief claim 

seeks to enjoin Defendant from marketing and selling the printers and cartridges without 

disclosing that a consumer will be required to purchase all three independent color cartridges 

once one color is the subject of a toner life end message. The effect of such an injunction would 

be to protect potential future purchasers of the printer; it would have no effect on current owners 

like Plaintiffs who have already purchased the printer. 

More importantly, Plaintiffs have not alleged that they intend to purchase another Brother 

printer in the future, which is the only means by which Defendant's alleged misrepresentations 

could induce them to buy a second printer under the belief that only exhausted color cartridges 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 27 of 30 PageID: 927
28 

need be replaced in order to continue printing in color. As in McNair, in the absence of 

allegations that Plaintiffs intend to purchase a second printer, the mere chance that Plaintiffs may 

choose at some later date to do so and thereby suffer more harm is not sufficient to confer Article 

III standing. See id. at 224-25 ("[Plaintiffs] do not allege that they intend to subscribe again. 

Instead, they say that they may, one day, become Synapse customers once more ....")16

Plaintiffs argue that they have sufficiently alleged Article III standing because, as current 

owners of the printer, "they will necessarily be subjected to having to replace three cartridges at a 

time and thus be periodically repeatedly damaged." Pl. Opp. at 33. This argument misses the 

mark. As framed by McNair, the standing question is whether a putative class representative has 

alleged that he or she will be harmed, a second time, by the misrepresentation, not whether he or 

she will be harmed by the operation of the product itself. Moreover, it is not enough that other, 

non-named members of the class may intend to purchase a printer in the future; "[w]hen, as in 

this case, prospective relief is sought, the plaintiff must show that he is likely to suffer future 

injury from the defendant's conduct [and in] the class action context, that requirement must be 

satisfied by at least one named plaintiff." McNair, 672 F.3d at 223. Hence the injunction relief 

claim must be dismissed. 

In reaching my decision, I echo Judge Simandle's concern that McNair's ruling will likely 

have the effect of precluding injunctive relief claims in misrepresentation-related consumer class 

actions adjudicated in federal court: 

The Court pauses to note that, as a result of the controlling 

precedent in this area, class action plaintiffs pursuing injunctive 

relief to prevent consumer fraud may, in general, have a difficult 

time satisfying the demands of Article III standing. By necessity, 

                                                           

16 For reasons explained below, it appears that—standing aside—Plaintiffs could not 

properly state an NJCFA claim based on an intent to purchase the same printer in the future since 

Plaintiffs have alleged that they are now aware of the falsity of Defendant's misrepresentations. 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 28 of 30 PageID: 928
29 

such cases can involve only identified plaintiffs who have become 

aware of the misleading nature of the label. Under the logic of 

McNair, such individual plaintiffs are therefore unable to plausibly 

claim a likelihood of being “injured” (i.e., misled) by the label 

again in the future. This conclusion would seem to prevent any 

Rule 23(b)(2) class action pursuing injunctive relief against 

consumer fraud based on mislabeling in federal court for violations 

of the New Jersey Consumer Fraud Act. While this Court's holding 

is controlled by the clear precedent of McNair on this point, it is to 

be hoped that future Third Circuit opinions will clarify whether 

this is the intended result of the McNair holding. 

Robinson v. Hornell Brewing Co., Civil No. 11–2183 (JBS–JS), 2012 WL 1232188 at *7 (D.N.J. 

Apr. 11, 2012). 

Indeed, the Third Circuit's recent decision in Marcus v. BMW of North America, LLC, 

supra, which states unequivocally that "[a]s a matter of substantive New Jersey law, [the New 

Jersey Supreme Court has] instruct[ed] that when a plaintiff knows the truth behind a fraudulent 

misrepresentation or omission, that plaintiff may not succeed under the NJCFA," 2012 WL 

3171560 at *18, underscores Judge Simandle's concern. The circuit emphasized, in Marcus, that

plaintiffs cannot satisfy the NJCFA causation element where they "could have known the truth 

underlying the defendant's fraud." 2012 WL 3171560 at *22. Thus, further elucidation by the 

circuit of when standing to assert an injunctive relief claim may be found in the class action 

consumer fraud context would be helpful. 17 

                                                           

17   I add one related point I believe could use further clarification. It is not clear to me why 

McNair's presumption of rationality based on prior dealings would not apply to the plaintiffs in 

that case had they become aware of the misrepresentation but chose to maintain their 

subscriptions. The circuit reasons in McNair that the plaintiffs in that case "would have been 

able to represent an injunctive relief class if they had maintained their subscriptions until after 

moving for class certification," 672 F.3d at 227, however, the circuit reasons elsewhere in its 

opinion that "[p]erhaps [the plaintiffs] may accept a Synapse offer in the future, but, speaking 

generally, the law accords people the dignity of assuming that they act rationally, in light of the 

information they possess." Id. at 225. In this way, McNair appears to suggest that plaintiffs 

who assert that they intend to purchase a second product sufficiently allege future injury despite 

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 29 of 30 PageID: 929
30 

IV. CONCLUSION 

For the foregoing reasons, the Court grants Defendant's motion with respect to Plaintiffs' 

breach of express and implied warranty, breach of the covenant of good faith and fair dealing, 

and injunctive relief claims but denies the motion with respect to all other claims. 

DATED: August 9, 2012 /s/ Freda L. Wolfson___

 Freda L. Wolfson, U.S.D.J. 

 

                                                                                                                                                                                               

their knowledge that the defendant's statements made to induce purchase are false. Accord In re 

Motor Fuel Temperature Sales Practices Litig., No. 07–MD–1840–KHV, 2012 WL 1415508, at 

*16 n.32 (D. Kan. Apr. 24, 2012) ("The Third Circuit found [in McNair] that the named class 

members lacked Article III standing to sue for injunctive relief because they were not current 

customers and did not allege that they intended to subscribe again.") (emphasis added). For this 

reason, one could read McNair as suggesting that, while courts should not presume that plaintiffs 

will be fooled again and again, plaintiffs who expressly assert their willingness to be fooled 

sufficiently allege future injury. I question whether McNair intended to create what some might 

see as a perverse incentive and result, unless it is the circuit's view that NJCFA claims for 

injunctive relief must be relegated to state court where Article III poses no bar. See Committee 

to Recall Robert Menendez From the Office of U.S. Senator v. Wells, 204 N.J. 79, 102-103 

(2010) ("[The New Jersey Supreme] Court is not limited to the ‘case or controversy’ requirement 

imposed on the federal courts by way of Article III of the Federal Constitution.”)).

Case 3:11-cv-01447-FLW-TJB Document 28 Filed 08/09/12 Page 30 of 30 PageID: 930