MGM Motion To Dismiss

Case 2:17-cv-00541-RSM Document 17 Filed 04/14/17 Page 1 of 30
1 THE HONORABLE RICARDO S. MARTINEZ
7 UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON
8 AT SEATTLE
9
MARY L. JOHNSON, individually and Case No. 2:17-cv-00541-RSM
10 on behalf of all others similarly situated,
11 Plaintiff, DEFENDANTS MOTION TO

DISMISS THE COMPLAINT
12 vs. PURSUANT TO FRCP 12(B)(6) OR IN
THE ALTERNATIVE TO STRIKE
13 MGM HOLDINGS INC.; METRO- THE CLASS ALLEGATIONS
GOLDWYN-MAYER STUDIOS INC.; PURSUANT TO FRCP 12(F) AND
14 TWENTIETH CENTURY FOX HOME 23(D)(1)(D)
ENTERTAINMENT LLC; and
15 TWENTY-FIRST CENTURY FOX, NOTE ON MOTION CALENDAR:
INC., DOES 1-10, inclusive, FRIDAY, MAY 12, 2017
16
Defendants. ORAL ARGUMENT REQUESTED
17
18
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20
21
22
23
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26
27
MOTION TO DISMISS OR MOTION TO STRIKE LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
Case No. 2:17-cv-00541-RSM P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
1 TABLE OF CONTENTS
Page
2
3 I. INTRODUCTION ................................................................................................. 1
4 II. SUMMARY OF ALLEGATIONS ....................................................................... 4

III. PLAINTIFFS COMPLAINT SHOULD BE DISMISSED.................................. 5
5
A. Standard for Motion to Dismiss ................................................................ 5
6 B. Plaintiff Has Not Pled a Cognizable Claim Under the Washington
7 Consumer Protection Act .......................................................................... 6
1. The Packaging Must Be Viewed as a Whole Under the
8 Reasonable Person Standard ......................................................... 6
9 2. The Information Inside the Box Sets Further Defeats the
Claims............................................................................................ 8
10
3. The Statements Regarding All and Every are Not
11 Actionable Statements ................................................................... 9
12 C. Plaintiff Fails to State a Claim for Breach of Express Warranty ............ 10
D. Plaintiff Fails to State a Claim for Breach of Implied Warranty of
13 Merchantability ....................................................................................... 11
14 E. Plaintiff Has No Claim Against MGM Holdings or Twenty-First
Century Fox ............................................................................................. 12
15
IV. PLAINTIFFS CLASS ALLEGATIONS SHOULD BE STRICKEN ............... 13
16
A. Plaintiffs Nationwide Class Allegations Should be Stricken
17 Because There is No Basis to Apply Washington Law and
Applying the Laws of 50 States is Unworkable ...................................... 14
18
B. Plaintiffs Proposed Class Definition Is Overbroad ................................ 19
19 V. CONLUSION ...................................................................................................... 20
20
21
22
23
24
25
26
27 MOTION TO DISMISS OR MOTION TO STRIKE LANE POWELL PC

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1 TABLE OF AUTHORITIES
2 Page
3 FEDERAL CASES
4 Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................................... 6
5
Bell Atl. Corp. v. Twombly,
6
550 U.S. 544 (2007) .................................................................................................... 6
7
Berenblat v. Apple, Inc.,
8 No. 08-4969 JF (PVT), 2010 WL 1460297 (N.D. Cal. Apr. 9, 2010) ........................ 9
9 Bobo v. Optimum Nutrition, Inc.,

No. 14CV2408 BEN (KSC), 2015 WL 13102417 (S.D. Cal. Sept. 11,
10 2015)............................................................................................................................ 7
11 In re Bridgestone/Firestone, Inc.,
12 288 F.3d 1012 (7th Cir. 2002) ................................................................................... 15
13 Bryant v. Wyeth,
879 F. Supp. 2d 1214 (W.D. Wash. 2012) ................................................................ 11
14
Casavant v. Norwegian Cruise Line,
15 Ltd., 76 Mass. App. Ct. 73, 77, 919 N.E. 2d 165, 169 (2009), affd,
460 Mass. 500, 952 N.E.2d 908 (2011) .................................................................... 17
16
17 Castagnola v. Hewlett-Packard Co.,

No. C 11-05772 JSW, 2012 WL 2159385 (N.D. Cal. June 13, 2012) ........................ 7
18
Castano v. Am. Tobacco Co.,
19 84 F.3d 734 (5th Cir. 1996) ....................................................................................... 15
20 Danjaq LLC v. Sony Corp.,

263 F.3d 942 (9th Cir. 2001) ....................................................................................... 9
21
Edwards v. Zenimax Media Inc.,
22
No. 12-CV-00411-WYD-KLM, 2012 WL 4378219 (D. Colo. Sept.
23 25, 2012).................................................................................................................... 14
24 Franklin v. Govt Emp. Ins. Co.,

No. C10-5183BHS, 2011 WL 5166458 (W.D. Wash. Oct. 31, 2011) ...................... 15
25
Freeman v. Time, Inc.,
26 68 F.3d 285 (9th Cir. 1995) ..................................................................................... 6, 7
27 MOTION TO DISMISS OR MOTION TO STRIKE LANE POWELL PC
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(continued)
2 Page
3 Garcia v. Gen. Motors Corp.,
910 F. Supp. 160 (D.N.J. 1995) ................................................................................ 18
4
Gen. Tel. Co. of Sw. v. Falcon,
5 457 U.S. 147 (1982) .................................................................................................. 13
6
Girard v. Toyota Motor Sales, U.S.A., Inc.,
7 316 F. Appx 561 (9th Cir. 2008)................................................................................ 7
8 Groden v. Random House, Inc.,

61 F.3d 1045 (2d Cir. 1995) ...................................................................................... 10
9
Grundmeyer v. Allstate Prop. & Cas. Ins. Co.,
10 No. C15-0464RSL, 2015 WL 9487928 (W.D. Wash. Sept. 29, 2015) ........... 2, 14, 18
11 Gustavson v. Wrigley Sales Co.,
12 No. 12-CV-01861-LHK, 2014 WL 60197 (N.D. Cal. Jan. 7, 2014) ........................... 4
13 Hairston v. S. Beach Beverage Co.,

No. CV 12-1429-JFW, 2012 WL 1893818 (C.D. Cal. May 18, 2012) ....................... 7
14
Hayes v. Rule,
15 No. 1:03 CV 1196, 2005 WL 2136946 (M.D.N.C. Aug. 19, 2005).......................... 10
16 Hovenkotter v. SAFECO Ins. Co. of Ill.,
17 No. C09-0218JLR, 2010 WL 3984828 (W.D. Wash. Oct. 11, 2010) ....................... 15
18 John v. Natl Sec. Fire & Cas. Co.,

501 F.3d 443 (5th Cir. 2007) ..................................................................................... 14
19
Maple v. Costco Wholesale Corp.,
20 No. 12-CV-5166, 2013 WL 11842009 (E.D. Wash. Aug. 1, 2013)............................ 4
21 McKinnis v. Kellogg USA,
No. CV 072611 ABC, 2007 WL 4766060 (C.D.Cal. Sept. 19, 2007) ...................... 8
22
23 McKinniss v. Sunny Delight Beverages Co.,

No. CV 07-02034-RGK, 2007 WL 4766525 (C.D. Cal. Sept. 4,
24 2007)............................................................................................................................ 7
25 Messner v. Northshore Univ. Health System,

669 F. 3d 802 (7th Cir. 2012) .............................................................................. 13, 19
26
27
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(continued)
2 Page
3 Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., Inc.,
900 F. Supp. 1287 (C.D. Cal. 1995) ........................................................................ 2, 9
4
Oshana v. Coca-Cola Co.,
5 472 F.3d 506 (7th Cir. 2006) ..................................................................................... 19
6
Phillips Petroleum Co. v. Shutts,
7 472 U.S. 797 (1985) .................................................................................................. 14
8 Pilgrim v. Universal Health Card, LLC,

660 F.3d 943 (6th Cir. 2011) ........................................................................... 2, 14, 15
9
Robertson v. Dean Witter Reynolds, Inc.,
10 749 F.2d 530 (9th Cir. 1984) ....................................................................................... 5
11 Sams v. Yahoo! Inc.,
12 713 F.3d 1175 (9th Cir. 2013) ..................................................................................... 4
13 In re Samsung Elecs. Am., Inc. Blu-Ray Class Action Litig.,

No. CIV.A. 08-0663 (JAG), 2008 WL 5451024 (D.N.J. Dec. 31,
14 2008)............................................................................................................................ 9
15 Sanders v. Apple Inc.,
672 F. Supp. 2d 978 (N.D. Cal. 2009) ............................................................ 3, 14, 19
16
17 Schwartz v. Lights of Am.,

No. CV 11- 1712-JVS, 2012 WL 4497398 (C.D. Cal. Aug. 31, 2012) .................... 15
18
State ex rel. Higgins v. SourceGas, LLC,
19 No. CIVA N11C-07-193 MMJ CCLD, 2012 WL 1721783, at *5
(Del. Super. Ct. May 15, 2012) ................................................................................. 12
20
Stearns v. Select Comfort Retail Corp.,
21 No. 08-2746 JF (PVT), 2009 WL 4723366 (N.D. Cal. Dec. 4, 2009) ........................ 3
22
Sugawara v. Pepsico, Inc.,
23 No. 2:08cv01335MCEJFM, 2009 WL 1439115 (E.D. Cal. May
21, 2009)...................................................................................................................... 8
24
Torres v. Mercer Canyons Inc.,
25 835 F.3d 1125 (9th Cir. 2016) ................................................................................... 19
26 United States v. Ritchie,
342 F.3d 903 (9th Cir. 2003) ....................................................................................... 6
27
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(continued)
2 Page
3 Weidenhamer v. Expedia, Inc.,
No. C14-1239RAJ, 2015 WL 7157282 (W.D. Wash. Nov. 13, 2015) ..................... 18
4
Zinser v. Accufix Research Inst., Inc.,
5 253 F.3d 1180 (9th Cir. 2001), opinion amended on denial of rehg,
6 273 F.3d 1266 (9th Cir. 2001) ................................................................................... 15
7 STATE CASES
8 Avery v. State Farm Mut. Auto. Ins.

Co., 216 Ill. 2d 100, 199, 835 N.E. 2d 801, 860-61 (2005) ...................................... 16
9
Babb v. Regal Marine Indus., Inc.,
10 179 Wash. App. 1036 (2014), review granted, cause remanded on
other grounds, 180 Wash. 2d 1021, 329 P.3d 67 (2014) .......................................... 10
11
12 Chapman v. Skype Inc.,

220 Cal. App. 4th 217 (2013) .................................................................................... 16
13
Cox v. Microsoft Corp.,
14 No. 105193/2000, 2005 WL 3288130 (N.Y. Sup. Ct. 2005) .................................... 17
15 Dempsey v. Intercontinental Hotel Corp.,
511 N.Y.S. 2d 10, 126 A.D.2d 477 (1987) ............................................................... 12
16
17 Edmonds v. Hough,
344 S.W.3d 219 (Mo. Ct. App. 2011) ....................................................................... 17
18
Estate of Sdao ex rel. Sdao v. Makki & Abdallah Invs.,
19 No. 322646, 2016 WL 279635 (Mich. Ct. App. Jan. 21, 2016) ................................ 16
20 Fed. Signal Corp. v. Safety Factors, Inc.,

125 Wash. 2d 413, 886 P.2d 172 (1994) ................................................................... 10
21
Grp. Health Plan, Inc. v. Philip Morris Inc.,
22
621 N.W.2d 2 (Minn. 2001) ...................................................................................... 16
23
Indoor Billboard/Washington, Inc. v. Integra Telecom of Wash., Inc.,
24 162 Wash. 2d 59, 170 P.3d 10 (2007) ....................................................................... 16
25 Korea Supply Co. v. Lockheed Martin Corp.,

29 Cal. 4th 1134 (2003)............................................................................................. 17
26
27
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(continued)
2 Page
3 Latman v. Costa Cruise Lines, N.V.,
758 So. 2d 699 (Fla. Dist. Ct. App. 2000)................................................................. 16
4
Mesler v. Bragg Mgmt. Co.,
5 39 Cal. 3d 290, 702 P.2d 601 (1985) (en banc) ........................................................ 12
6
Panag v. Farmers Ins. Co. of Wash.,
7 166 Wash. 2d 27, 204 P.3d 885 (2009) ....................................................................... 6
8 Price v. Philip Morris, Inc.,

219 Ill. 2d 182, 848 N.E. 2d 1 (2005) ....................................................................... 17
9
Tex Enters., Inc. v. Brockway Standard, Inc.,
10 149 Wash. 2d 204, 66 P.3d 625 (2003) ................................................................. 2, 11
11 Varacallo v. Mass. Mut. Life Ins. Co.,
12 332 N.J. Super. 31, 752 A. 2d 807 (App. Div. 2000) ................................................ 16
13 STATE STATUTES
14 California Consumer Legal Remedies Act, Cal. Civil Code 1750

1784 ..................................................................................................................... 16, 17
15
California Unfair Competition Law, Cal. Bus. & Prof. Code 17200
16 17210 ................................................................................................................... 15, 16
17
Florida Deceptive and Unfair Trade Practice Act, Fla. Stat. Ann. 501 .................. 15, 17
18
Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill.
19 Comp. Stat. 505/10a .................................................................................................. 17
20 Massachusetts Consumer Protection Act, Mass. Gen. Laws Ann. Chapter

93A, 11 ................................................................................................................... 17
21
Michigan Consumer Protection Act, Mich. Comp. Ann. 445.910-11 .................... 16, 18
22
Minnesota Uniform Deceptive Trade Practices Act, Minn. Stat. Ann.
23
8.31 ......................................................................................................................... 18
24
Missouri Merchandising Practices Act, Mo. Ann. Stat. 407.025. .......................... 17, 18
25
New Jersey Consumer Fraud Act, N.J. Stat. Ann. 56:8-19 ...................................... 9, 18
26
New York Deceptive Acts and Practices Law, N.Y. Gen. Bus. Law
27 349-350...................................................................................................................... 18
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(continued)
2 Page
3 Washington Consumer Protection Act, RCW 19.86 .........................................5, passim
4 RCW 62A.2-313..................................................................................................... 10, 11
5 RCW 62A.2-314....................................................................................................... 5, 11
6 FEDERAL RULES
7
Fed. R. Civ. P. 12(b)(6) ..................................................................................................... 5
8
Fed. R. Civ. P. 23 ........................................................................................................ 1, 13
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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1 I. INTRODUCTION
2 Plaintiffs claim that she was deceived about exactly which films were
3 contained in a box set of James Bond Blu-ray discs fails as a matter of law because she
4 cannot allege deception where, as here, the packaging expressly states which films are
5 inside and she physically handled and inspected the packaging before purchase.
6 Compl. 31, 52. Plaintiff attempts to bring a nationwide class action complaining that
7 three home video box sets of James Bond films do not contain the 1967 Bond spoof,
8 Casino Royale, or the 1983 non-franchise film, Never Say Never Again, neither of
9 which were listed on the packaging as included. No reasonable purchaser would expect
10 that a box set would contain films that are not included on the list of titles clearly
11 printed on its packaging and therefore neither Plaintiff nor any other putative class
12 member can claim deception as a matter of law. Moreover, the class allegations do not
13 comport with Rule 23 of the Federal Rules of Civil Procedure and, at a minimum, must
14 be stricken if not dismissed entirely.
15 Motion to Dismiss. Plaintiff asserts three claims for relief: Violation of
16 the Washington Consumer Protection Act (CPA); Breach of Express Warranty; and
17 Breach of Implied Warranty of Merchantability. The first two claims fail on similar
18 grounds. A claim for violation of the CPA requires a misleading or deceptive act. A
19 breach of express warranty claim requires an affirmative misstatement. Product
20 packaging does not meet either standard if the packaging, taken as a whole, makes the
21 contents of the purchase apparent to the reasonable consumer. In particular, where (as
22 here) an allegedly misleading statement is combined with clarifying wording, the
23 packaging is not deceptive and does not create an affirmative misstatement. Nor can
24 statements of artistic judgment form the basis of a CPA or breach of express warranty
25 claim.
26 Plaintiff tries to get around these fatal defects by pointing to a single
27 sentence on the packaging stating that the box sets contained all of the James Bond
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1 films and every Bond girl, villain, and star. This argument fails for two reasons.
2 First, the language that Plaintiff points to is fully clarified by the complete listing of the
3 films on the packaging. In other words, the packaging itself makes clear which films
4 were all the films included in the box set. Second, the statement is not actionable as a
5 matter of law because the particular James Bond films suitable for inclusion in such a
6 collection is a matter of artistic judgment. See Metro-Goldwyn-Mayer, Inc. v. Am.
7 Honda Motor Co., Inc., 900 F. Supp. 1287, 1294 (C.D. Cal. 1995) (discussing attributes
8 of a James Bond movie identified by various experts). Without allegations of deceptive
9 conduct or cognizable misstatements, the CPA and express warranty claims must be
10 dismissed.
11 The breach of implied warranty claim fails as a matter of law because
12 representations between a manufacturer and a remote consumer are not actionable as an
13 implied warranty absent contractual privity. Tex Enters., Inc. v. Brockway Standard,
14 Inc., 149 Wash. 2d 204, 214, 66 P.3d 625, 630 (2003). Plaintiff alleges that she bought
15 the box set from Amazon, not from any Defendant. Compl. 49. Thus, Plaintiff does
16 not and cannot allege privity between herself and any Defendant, and, thus, the implied
17 warranty claim must be dismissed.
18 Motion to Strike. This suit should be dismissed but, at a minimum, the
19 Court must strike the class allegations on at least two grounds. First, the Complaint
20 alleges three claims under Washington law but the nationwide class allegations require
21 the application of 50 different state laws. There is no basis for applying Washington
22 law to purchasers in 49 other states. A nationwide class, therefore, would require
23 application of consumer protection laws from every state with their differing statutes of
24 limitations, causation and reliance requirements, and remedies, along with other
25 variations. Where it is apparent on the face of the complaint that individual issues
26 predominate over common issues, the class allegations should be stricken. See Pilgrim
27 v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011); Grundmeyer v.
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1 Allstate Prop. & Cas. Ins. Co., No. C15-0464RSL, 2015 WL 9487928, at *4 (W.D.
2 Wash. Sept. 29, 2015).
3 Second, Plaintiffs class definition is impermissibly overbroad. Class
4 allegations must be stricken if they cover significant numbers of individuals who could
5 not be harmed. See Sanders v. Apple Inc., 672 F. Supp. 2d 978, 991 (N.D. Cal. 2009).
6 Plaintiffs class allegations include everyone who purchased one of the three James
7 Bond box sets. But, a putative class of all purchasers includes many who could not
8 have been harmed by the box sets packaging. E.g.: (1) purchasers who read the list of
9 films on the packaging and understood the set did not contain the 1967 Casino Royale
10 or Never Say Never Again; (2) James Bond aficionados who would never expect the
11 1967 Casino Royale spoof and the 1983 non-franchise Never Say Never Again to be
12 included in an official collection of James Bond films; (3) purchasers who already
13 owned those two films before they bought a set; (4) purchasers who only intended to
14 purchase the official Eon Productions franchise films; (5) purchasers who bought a box
15 set primarily to obtain the additional materials and special features it contained; (6)
16 purchasers who returned a set for a full refund when they learned it did not include the
17 two films; (7) purchasers who learned that a set did not contain the two films and could
18 have returned it for a full refund but chose not to do so; (8) purchasers who bought a set
19 because it contained a large number of movies for a relatively low price; and (9)
20 purchasers who did not read the [a]ll the Bond films description before they
21 purchased a set. None of these many purchasers could be harmed by Defendants
22 packaging. Plaintiffs attempt to represent an overbroad class is facially improper and
23 must be stricken.
24 In short, if Plaintiffs individual claims somehow survive, the class
25 allegations should be stricken now, before the parties and the judicial system incur the
26 substantial costs associated with litigating a putative class action. See Stearns v. Select
27 Comfort Retail Corp., No. 08-2746 JF (PVT), 2009 WL 4723366, at*14 (N.D. Cal. Dec.
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1 4, 2009) (it is procedurally proper to strike futile class claims at the outset of litigation
2 to preserve time and resources).
3 II. SUMMARY OF ALLEGATIONS

4 Plaintiff allegedly purchased a box set of 23 James Bond films on Blu-
5 Ray entitled the James Bond Collection.1 Compl. 49.2 The box stated: All the
6 Bond films are gathered together in this one-of-a-kind box setevery gorgeous girl,
7 nefarious villain and charismatic star from Sean Connery to Daniel Craig. This
8 language is repeated on the back of the Ultimate James Bond Collection and similar
9 language is used on the back of the Bond 50 set.3 A complete list of the 23 films
10 included inside the box set is printed on the packaging. Id. 22, 27, 30-33, 35, 53.
11 The list and the box set did not include the 1967 send-up Casino Royale4 or Never Say
12 Never Again, neither of which are part of the James Bond film canon produced by Eon
13 Productions, the producer of the James Bond franchise. Id. 19-22, 35. Plaintiff
14
1
15 All three box sets have been provided to the Court for its review and copies of relevant
portions of their packaging are attached to the Declaration of Samuel T. Boyd filed
16 concurrently herewith. In ruling on a motion to dismiss, a court may consider
17 documents that were not physically attached to the complaint where the documents
authenticity is not contested, and the plaintiffs complaint necessarily relies on
18 them. See Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013). Courts regularly
consider product packaging where that packaging is incorporated by reference in
19 plaintiffs complaints. See, e.g., Gustavson v. Wrigley Sales Co., No. 12-CV-01861-
LHK, 2014 WL 60197, at *3 n.2 (N.D. Cal. Jan. 7, 2014) (considering images of
20 product packaging submitted by defendants where plaintiff included illegible images in
21 its complaint); Maple v. Costco Wholesale Corp., No. 12-CV-5166, 2013 WL
11842009, at *2 (E.D. Wash. Aug. 1, 2013) (product packaging was incorporated by
22 reference in complaint).
2
23 Defendants accept the allegations in the Complaint only for purposes of this Motion.
3
The Bond 50 set says: All the Bond films are gathered together for the first time in
24 this one-of-a-kind boxed setevery gorgeous girl, nefarious villain and charismatic star
25 from Sean Connery, the legendary actor who started it all, to Daniel Craig. Compl.
24.
26 4 Eon Productions produced a film entitled Casino Royale that was released in 2006 and
is included in all of the box sets.
27
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1 alleges that she would not have purchased the box set had she known that it did not
2 contain the 1967 Casino Royale or Never Say Never Again. Id. 53-54. The
3 Complaint asserts three claims: (1) violation of the CPA, RCW 19.86; (2) Breach of
4 Express Warranty; and (3) Breach of Implied Warranty of Merchantability, RCW
5 62A.2-314. Compl. 78-92.
6 Plaintiff seeks to represent a putative nationwide class of: [a]ll persons
7 who purchased, since March 6, 2013, one or more DVD/Blu-ray box sets entitled Bond
8 50: Celebrating Five Decades of Bond 007, the James Bond Collection, and/or the
9 Ultimate James Bond Collection, in the United States, for their own or household use
10 rather than for resale or distribution. Id. 66. Alternatively, Plaintiff seeks to
11 represent the same class of purchasers from 10 states: California, Florida, Illinois,
12 Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, and
13 Washington. Id.
14 Plaintiff alleges that Defendant Metro-Goldwyn-Mayer Studios Inc.
15 (MGM Studios) owns the distribution rights for the James Bond movies and that
16 Defendant Twentieth Century Fox Home Entertainment LLC (Twentieth Century
17 Fox) handles Home Video marketing and distribution services on MGM Studios
18 behalf. Id. 14, 17. Defendants MGM Holdings Inc. (MGM Holdings) and
19 Twenty-First Century Fox, Inc. (Twenty-First Century Fox) are the corporate parents
20 of MGM Studios and Twentieth Century Fox, respectively. Id. 13, 15; see also
21 Corporate Disclosures, ECF Nos. 4-7. Plaintiff makes no allegations regarding conduct
22 by the parent company Defendants, MGM Holdings and Twenty-First Century Fox.
23 III. PLAINTIFFS COMPLAINT SHOULD BE DISMISSED

24 A. Standard for Motion to Dismiss
25 A motion to dismiss under Rule 12(b)(6) should be granted if a
26 complaint does not state a cognizable legal theory or fails to allege sufficient facts to
27 support a claim. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.
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1 1984). A court must take all of the factual allegations in the complaint as true, but it
2 is not bound to accept as true a legal conclusion couched as a factual allegation.
3 Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
4 U.S. 544, 555 (2007)). In deciding a motion to dismiss, a court may consider
5 documents attached to the complaint, documents incorporated by reference in the
6 complaint, or matters of judicial notice. United States v. Ritchie, 342 F.3d 903, 908
7 (9th Cir. 2003).
8 B. Plaintiff Has Not Pled a Cognizable Claim Under the Washington

Consumer Protection Act
9
1. The Packaging Must Be Viewed as a Whole Under the
10 Reasonable Person Standard
11 A valid CPA claim requires unfair or deceptive acts or practices in the
12 conduct of any trade or commerce. RCW 19.86.020. A practice is deceptive if it is
13 likely to mislead a reasonable consumer. Panag v. Farmers Ins. Co. of Wash., 166
14 Wash. 2d 27, 50, 204 P.3d 885, 895 (2009).
15 Plaintiffs Complaint acknowledges that the product packaging states
16 truthfully and accurately the total number and titles of the films included in each set.
17 Compl. 33. Plaintiff alleges that she physically handled and inspected the James Bond
18 Collection in person before she purchased it. Id. 52. A reasonable consumer would
19 not have believed that movies that were not listed on the packaging would be included
20 in the box set.
21 Plaintiffs entire claim rests on the single sentence on the back of each
22 box referencing all Bond movies and every Bond girl and villain. But, whether
23 product packaging is deceptive depends on what the packaging states as a wholenot
24 what isolated parts say. See Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995)
25 (applying reasonable consumer standard under California law). Where allegedly
26 misleading language is accompanied by clarifying language that is not hidden or
27 unreadably small, there is no deception. Id.

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1 In Freeman, the plaintiff received a mailer that stated in large type: [i]f
2 you return the grand prize winning number, well officially announce that MICHAEL
3 FREEMAN HAS WON $1,666,675.00 AND PAYMENT IS SCHEDULED TO
4 BEGIN. Id. at 287. In fact, Freeman had not won anything. Id. The Ninth Circuit
5 affirmed dismissal of Freemans consumer protection claims because the mailer
6 included text with qualifying language in smaller type on the same mailer as the
7 representations he claimed were misleading making clear he had not won. Id. at 289.
8 Similarly, in Bobo v. Optimum Nutrition, Inc., No. 14CV2408 BEN (KSC), 2015 WL
9 13102417, at *1 (S.D. Cal. Sept. 11, 2015), the court dismissed allegations that the
10 packaging of protein powder labeled in large letters 100% Whey was misleading even
11 though the product in fact contained artificial flavorings because the product disclosed
12 that it contained artificial flavorings, albeit in small text, elsewhere on the package.
13 Taken as a whole, the package disclosed the contents of the product, and thus there was
14 no deception.
15 Numerous other courts have reached the same conclusion and dismissed
16 consumer protection claims on the pleadings where the alleged packaging, taken as a
17 whole, was not deceptive. See, e.g., Girard v. Toyota Motor Sales, U.S.A., Inc., 316 F.
18 Appx 561, 563 (9th Cir. 2008) (plaintiffs failed to state a claim based on misleading
19 advertisements where the truth was included in disclaimers); Castagnola v. Hewlett-
20 Packard Co., No. C 11-05772 JSW, 2012 WL 2159385, at *9 (N.D. Cal. June 13, 2012)
21 (dismissing false advertising claims where allegedly misleading impression is
22 dispelled by the [webpage] as a whole) (citation omitted); Hairston v. S. Beach
23 Beverage Co., No. CV 12-1429-JFW (DTBx), 2012 WL 1893818, at *5 (C.D. Cal. May
24 18, 2012) (dismissing false advertising claims on product packaging because a product
25 ingredient label clarified possible ambiguity elsewhere on packaging); McKinniss v.
26 Sunny Delight Beverages Co., No. CV 07-02034-RGK (JCx), 2007 WL 4766525, at *4
27 (C.D. Cal. Sept. 4, 2007) (reasonable consumer would not believe that images of fruits
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1 on Sunny Delight beverage meant that it contained significant amounts of fruit juice
2 when reviewing the products label as a whole); Sugawara v. Pepsico, Inc., No. 2:08
3 cv01335MCEJFM, 2009 WL 1439115, at *5 (E.D. Cal. May 21, 2009) (reasonable
4 consumer would have understood that crunchberries in Capn Crunch cereal were not
5 in fact fruits but instead pieces of cereal); McKinnis v. Kellogg USA, No. CV 072611
6 ABC (RCx), 2007 WL 4766060, at *4 (C.D. Cal. Sept. 19, 2007) (similar ruling for
7 Froot Loops cereal).
8 The same result is required here. The phrase [a]ll the Bond films was
9 qualified by a complete listing of all the films included in the box set. A reasonable
10 consumer would expect to find the movies listed on the packaging inside the boxno
11 more and no less.
12 Plaintiffs assertion that the titles were hard to read has no merit.
13 Tellingly, Plaintiff does not allege that she did not or could not read the list of films
14 printed on the packaging. Plaintiff includes fuzzy, black and white photo-copies of the
15 packaging in the text of her Complaint. Compl. 31. But, a review of the packaging
16 reveals that the names of the films are fully legible to an ordinary consumer. Physical
17 copies of the box sets have been submitted to the Court for its review. See also Exhibits
18 1-3 to the Declaration of Samuel T. Boyd.
19 2. The Information Inside the Box Sets Further Defeats the

Claims
20
In addition to the list of films on the outside, the box sets contained
21
prominent lists of their contents within the outer packaging. Each set contains either
22
two or three individual sleeves, labeled by years. Each sleeve lists on its cover the films
23
contained inside. The James Bond Collection and The Ultimate James Bond Collection
24
also contain a listing of films in large print on a detachable paper card wrapped around
25
each set. And, the names of the films are printed on each disc.
26
27
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1 Courts have repeatedly barred claims by plaintiffs based on the exterior
2 packaging where truthful information is contained inside. In In re Samsung Elecs. Am.,
3 Inc. Blu-Ray Class Action Litig., No. CIV.A. 08-0663 (JAG), 2008 WL 5451024, at *2-
4 6 (D.N.J. Dec. 31, 2008), plaintiffs brought a putative class action claiming that
5 defendants Blu-ray players did not play certain types of discs. The court dismissed
6 their New Jersey Consumer Fraud Act and express and implied warranty claims because
7 written materials located inside the product packaging made this clear. Similarly, in
8 Berenblat v. Apple, Inc., No. 08-4969 JF (PVT), 2010 WL 1460297, at *2-9 (N.D. Cal.
9 Apr. 9, 2010), the court denied breach of implied warranty of merchantability and unfair
10 competition claims brought by plaintiffs alleging their laptops contained defective
11 memory expansion slots not covered by warranty where this was disclosed inside the
12 products packaging. The listing of films in multiple locations inside the packaging of
13 the James Bond box sets further eliminates any claim here.
14 3. The Statements Regarding All and Every are Not

Actionable Statements
15
The CPA claim must also be dismissed because the statements at issue
16
are not actionable as a matter of law. Plaintiff complains that the box sets refer to all
17
Bond films and every Bond girl and villain. The use of the terms all and every
18
on the packaging is not actionable language. This language reflects a judgment about
19
which James Bond films should be included in these curated collections based on
20
various factors, including the films content and production history. There is detailed
21
scholarship on the artistic elements of a James Bond film. See Metro-Goldwyn-Mayer,
22
900 F. Supp. at 1294 (discussing attributes of a James Bond movie and identifying
23
Bond experts that had analyzed the artistic elements of the films). Likewise, the
24
unauthorized production history of Never Say Never Again is widely known. See
25
Danjaq LLC v. Sony Corp., 263 F.3d 942, 947-949 (9th Cir. 2001) (recounting the
26
history of disputes over James Bond rights that resulted in the production of Never Say
27
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1 Never Again without the authorization of Eon Productions or the estate of Ian Fleming,
2 the author of the underlying novels).
3 Subjective judgments do not give rise to an unfair or deceptive act. Babb
4 v. Regal Marine Indus., Inc., 179 Wash. App. 1036 (2014), review granted, cause
5 remanded on other grounds, 180 Wash. 2d 1021, 329 P.3d 67 (2014); see also Hayes v.
6 Rule, No. 1:03 CV 1196, 2005 WL 2136946, at *13 (M.D.N.C. Aug. 19, 2005) (CDs
7 labeled as revolutionary, with references to historical figures such as George
8 Jackson, Marcus Garvey, and Nat Turner did not give rise to a false advertising claim
9 where the content of the album was not political); Groden v. Random House, Inc., 61
10 F.3d 1045, 1052 (2d Cir. 1995) (judgments about the Kennedy assassination used to
11 market a book could not give rise to false advertising claim).
12 Plaintiffs claim is analogous to claiming that the 1970s animated
13 adaptation of the Lord of Rings Trilogy should be considered part of a curated
14 collection of all the Lord of the Rings films or that the 1970s Star Wars Christmas
15 movie is a Star Wars production that should be included in a collection of every Star
16 Wars film. Artistic judgments to the contrary are not actionable.
17 In sum, Plaintiff cannot state a cognizable CPA claim because the
18 packaging states accurately what films the set includes, taken as a whole it is not
19 deceptive, and the artistic judgment involved in curating a definitive collection of James
20 Bond films is not actionable.
21 C. Plaintiff Fails to State a Claim for Breach of Express Warranty

22 Plaintiffs second count for breach of express warranty under
23 Washington law fails because no express warranty was created here. An express
24 warranty is an affirmation of fact . . . made by the seller to the buyer which relates to
25 the goods and becomes part of the basis of the bargain. RCW 62A.2-313. An
26 express warranty is not created if the buyer has actual or imputed knowledge of the
27 true condition of the good. Fed. Signal Corp. v. Safety Factors, Inc., 125 Wash. 2d
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1 413, 424, 886 P.2d 172, 179 (1994). Here, no warranty was created by the [a]ll Bond
2 films description because a buyer of the box set at issue knew or could have known
3 precisely which Bond films the set contained by viewing the list of films presented on
4 the bottom of the box.
5 The [a]ll the Bond films statement is also not a warranty because, as
6 with the CPA, it is not an actionable assertion. Whether a particular film is part of the
7 canon of definitive Bond films is a matter of opinion, and hence not an affirmation of
8 fact that can create a warranty. RCW 62A.2-313 (a statement purporting to be
9 merely the sellers opinion or commendation of the goods does not create a warranty);
10 see also Bryant v. Wyeth, 879 F. Supp. 2d 1214, 1227 (W.D. Wash. 2012) (statement on
11 packaging of medication about the believed risks of taking it did not create an express
12 warranty).
13 D. Plaintiff Fails to State a Claim for Breach of Implied Warranty of

Merchantability
14
Plaintiffs third claim for breach of the implied warranty of
15
merchantability fails because there is no privity of contract between Plaintiff and
16
Defendants. RCW 62A.2-314. Under Washington law, implied warranty claims
17
cannot be based on express statements by a manufacturer to a remote commercial
18
purchaser unless they are in privity of contract. Tex Enterprises, Inc., 149 Wash. 2d at
19
214 (implied warranties do not arise out of express representations made by a
20
manufacturer to a remote commercial purchaser absent privity or reliance on some
21
underlying contract). Here, Plaintiff purchased the product from Amazon and
22
therefore no contract or privity exists with Defendants. Compl. 49. The requisite
23
elements of the implied warranty of merchantability cannot be alleged and the claim
24
must be dismissed.
25
26
27
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1 E. Plaintiff Has No Claim Against MGM Holdings or Twenty-First

Century Fox
2
Finally, the claims against the Defendant parent companies must be
3
dismissed because no alleged theory of liability implicates them. Defendants MGM
4
Holdings and Twenty-First Century Fox are the indirect corporate parents of
5
Defendants MGM Studios and Twentieth Century Fox. Compl. 13, 15. Plaintiff has
6
not alleged that either Twenty-First Century Fox or MGM Holdings played any role in
7
the production or sale of the box set at issue and therefore has not stated a claim against
8
either entity. Nor can they be held liable simply because they are the corporate parents
9
of MGM Studios and Twentieth Century Fox, respectively. Under the law of
10
California, where MGM Holdings has its principal place of business, a parent company
11
is not liable for the acts of its subsidiaryincluding through a subsidiarys agent
12
except in narrowly defined circumstances and only when the ends of justice so
13
require. Mesler v. Bragg Mgmt. Co., 39 Cal. 3d 290, 301, 702 P.2d 601, 607 (1985)
14
(en banc). Under New York law, where Twenty-First Century Fox has its principal
15
place of business,5 the general rule is that a parent corporation is not liable for the acts
16
of a subsidiary. Dempsey v. Intercontinental Hotel Corp., 511 N.Y.S. 2d 10, 11, 126
17
A.D.2d 477, 478 (1987) (citation omitted). Under Delaware law, where both entities
18
are incorporated, a subsidiary corporation may be deemed the alter ego of the parent
19
corporation only where a corporate parent exercises complete domination and control
20
over the subsidiary and [g]enerally, a corporate parent will only be held liable for the
21
obligations of its subsidiaries upon a showing of fraud or some inequity. State ex rel.
22
Higgins v. SourceGas, LLC, No. CIVA N11C-07-193 MMJ CCLD, 2012 WL 1721783,
23
at *5 (Del. Super. Ct. May 15, 2012) (citations omitted).
24
25
5
Though it is not relevant to this motion, Defendants note that Plaintiffs allegation that
26 Twenty-First Century Fox has its principal place of business in California, Compl. 8,
is inaccurateit is headquartered in New York, which is its principal place of business.
27
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1 Plaintiff has not and cannot allege facts that would create a basis for
2 liability for MGM Holdings and Twenty-First Century Fox in this suit and so all claims
3 against them should be dismissed.
4 IV. PLAINTIFFS CLASS ALLEGATIONS SHOULD BE STRICKEN

5 Although Plaintiffs entire complaint should be dismissed, in the
6 alternative and at a minimum, the Complaints class allegations must be stricken on two
7 separate grounds. First, it is apparent from the face of the Complaint that individual
8 issues predominate over common ones, precluding class treatment. Fed. R. Civ. Pro.
9 23(b)(3). Most significantly, Plaintiffs nationwide class allegations, and even her
10 alternative 10-state class allegations, require the application of multiple conflicting state
11 laws that are not appropriate for adjudication on a class-wide basis. Second, Plaintiffs
12 class allegations should be stricken because the class definition is impermissibly
13 overbroad. A putative class is too broad for class treatment and should be stricken
14 where it includes a great number of members who for some reason could not have
15 been harmed by the defendants allegedly unlawful conduct. Messner v. Northshore
16 Univ. Health System, 669 F. 3d 802, 824 (7th Cir. 2012).
17 Federal Rule of Civil Procedure 23(c)(1) requires that the court []
18 determine, as early in the proceedings as may be practicable, whether an action brought
19 as a class action is to be so maintained. Fed. R. Civ. P. 23(3), Advisory Committee
20 Notes. Moreover, [i]n conducting an action under [Rule 23], the court may issue
21 orders that . . . require that the pleadings be amended to eliminate allegations about
22 representation of absent persons and that the action proceed accordingly. Fed. R. Civ.
23 P. 23(d)(1)(D); see also Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982)
24 ([s]ometimes the issues are plain enough from the pleadings to determine whether the
25 interests of the absent parties are fairly encompassed within the named plaintiffs
26 claim).
27
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1 Based on the foregoing requirements, courts have stricken class
2 allegations where it is apparent from the pleadings that no class claims can be
3 maintained. See Pilgrim, 660 F.3d 943 at 949 (affirming grant of motion to strike class
4 allegations where the deficiencies in class treatment would not be addressed by
5 discovery or more time); John v. Natl Sec. Fire & Cas. Co., 501 F.3d 443, 445
6 (5th Cir. 2007) (eliminating class allegations at the pleading stage [w]here it is facially
7 apparent from the pleadings that there is no ascertainable class); Grundmeyer v.
8 Allstate Prop. & Cas. Ins. Co., No. C15-0464RSL, 2015 WL 9487928, at *4 (W.D.
9 Wash. Sept. 29, 2015) (striking class allegations where it was apparent from the face of
10 the complaint that class treatment was inappropriate); Sanders, 672 F. Supp. 2d at 991
11 (striking class allegations on breach of warranty and fraud claims for same reasons);
12 Edwards v. Zenimax Media Inc., No. 12-CV-00411-WYD-KLM, 2012 WL 4378219, at
13 *6 (D. Colo. Sept. 25, 2012) (same).
14 A. Plaintiffs Nationwide Class Allegations Should be Stricken Because

There is No Basis to Apply Washington Law and Applying the Laws
15 of 50 States is Unworkable
16 Plaintiff seeks to represent a class of purchasers in all 50 states or, in the
17 alternative, purchasers in 10 states with purportedly similar consumer protection laws.
18 Compl. 66. There is no basis whatsoever to apply Washington law to purchasers
19 outside the state bringing claims against Defendants who are outside the state. Compl.
20 3-10; Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 822 (1985) (application of state
21 law to claims with which a state does not have significant contacts is sufficiently
22 arbitrary and unfair as to exceed constitutional limits). Thus, the Complaints class
23 allegations require application of the laws of at least 10 and as many as 50 different
24 states.
25 Courts regularly reject class treatment of state consumer protection
26 claims requiring the application of multiple states laws. [A] nationwide class is not
27 the superior method for adjudicating the false advertising claims because they are
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1 subject to 50 different laws, under 50 different evidence standards, with 50 different
2 remedy schemes. Schwartz v. Lights of Am., No. CV 11- 1712-JVS (MLGx), 2012
3 WL 4497398, at *9 (C.D. Cal. Aug. 31, 2012); see also Zinser v. Accufix Research Inst.,
4 Inc., 253 F.3d 1180, 1189-90 (9th Cir. 2001), opinion amended on denial of rehg, 273
5 F.3d 1266 (9th Cir. 2001) (the proliferation of disparate factual and legal issues is
6 compounded exponentially when law of multiple jurisdictions apply) (quoting
7 Castano v. Am. Tobacco Co., 84 F.3d 734, 741 (5th Cir. 1996)); Franklin v. Govt Emp.
8 Ins. Co., No. C10-5183BHS, 2011 WL 5166458, at *7 (W.D. Wash. Oct. 31, 2011)
9 (rejecting class that would require application of the law of 17 states); Hovenkotter v.
10 SAFECO Ins. Co. of Ill., No. C09-0218JLR, 2010 WL 3984828, at *8 (W.D. Wash.
11 Oct. 11, 2010) (rejecting class requiring the interpretation of the laws of 28 states).
12 Nationwide classes that are not governed by one states laws are
13 unworkable because [i]f more than a few of the laws of the fifty states differ . . . the
14 district judge would face an impossible task of instructing a jury on the relevant law.
15 Pilgrim, 660 F.3d at 948 (citation omitted); see also In re Bridgestone/Firestone, Inc.,
16 288 F.3d 1012, 1015 (7th Cir. 2002) (No class action is proper unless all litigants are
17 governed by the same legal rules.).
18 Plaintiff has essentially conceded that the there are differences between
19 Washington law and that of 40 out of 50 states, identifying 10 fallback states with
20 purportedly similar consumer fraud laws. Compl. 66 n.4.6 Yet even the laws of the
21 remaining ten states contain critical differences from Washington law. For example, the
22 statute of limitations is four years under the CPA, RCW 19.86.120; Californias Unfair
23 Competition Law, Cal. Bus. & Prof. Code 17208; and Floridas Deceptive and Unfair
24 Trade Practice Act, Fla. Stat. Ch. 501.207. It is three years under Illinois Consumer
25
26 6
California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New
27 Jersey, New York, and Washington. Compl. 66.
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1 Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/10a, and
2 Californias Consumer Legal Remedies Act,7 Cal. Civ. Code 1783. It is six years
3 under Michigans Consumer Protection Act, Mich. Stat. Ann. 445.910445.911.
4 For the remaining five states, the statute of limitations is unstated in the text of the
5 statute, presumably requiring analogy to other state claims or reference to other statutes
6 in those states.
7 Similarly these state laws have a wide variety of tests and other
8 requirements for causation. The CPA requires a but-for causal link between a
9 defendants challenged acts and harm suffered by the plaintiff. Indoor
10 Billboard/Washington, Inc. v. Integra Telecom of Wash., Inc., 162 Wash. 2d 59, 83, 170
11 P.3d 10, 22 (2007). The same is true in Illinois. Avery v. State Farm Mut. Auto. Ins.
12 Co., 216 Ill. 2d 100, 199, 835 N.E. 2d 801, 860-61 (2005). California law allows
13 causation to be inferred from the misrepresentation of a material fact. Chapman v.
14 Skype Inc., 220 Cal. App. 4th 217, 229 (2013). Florida does the same. Latman v. Costa
15 Cruise Lines, N.V., 758 So. 2d 699, 703 (Fla. Dist. Ct. App. 2000). Michigan requires
16 simple causation which is a less demanding standard than proximate causation.
17 Estate of Sdao ex rel. Sdao v. Makki & Abdallah Invs., No. 322646, 2016 WL 279635,
18 at *7 (Mich. Ct. App. Jan. 21, 2016). New Jersey requires proof of a causal nexus
19 between the alleged deceptive conduct and the loss. Varacallo v. Mass. Mut. Life Ins.
20 Co., 332 N.J. Super. 31, 43, 752 A. 2d 807, 813-14 (App. Div. 2000). Minnesota,
21 similarly, requires some legal nexus between the injury and the defendants wrongful
22 conduct. Grp. Health Plan, Inc. v. Philip Morris Inc., 621 N.W.2d 2, 14 (Minn. 2001).
23 In Massachusetts, [c]ausation is established if the deception could reasonably be
24
7
25 Plaintiff cites two separate statues in California, that are supposedly similar to
Washingtons CPA, the California Unfair Competition Law, Cal. Bus. & Prof. Code
26 1720017210, 1750017581, and the California Consumer Legal Remedies
Act, Cal. Civil Code 17501784, 10,510. These two statutes differ significantly
27 from each other, let alone from the CPA. Id.
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1 found to have caused a person to act differently from the way he [or she] otherwise
2 would have acted. Casavant v. Norwegian Cruise Line, Ltd., 76 Mass. App. Ct. 73,
3 77, 919 N.E. 2d 165, 169 (2009), affd, 460 Mass. 500, 952 N.E.2d 908 (2011). In New
4 York, the proof must show that each plaintiff was reasonably deceived by the
5 defendants misrepresentations or omissions and was injured by reason thereof. Cox v.
6 Microsoft Corp., No. 105193/2000, 2005 WL 3288130, at *4 (N.Y. Sup. Ct. 2005)
7 (citation omitted). Finally, in Missouri a plaintiff must show that he or she suffered an
8 ascertainable loss of money or property. . . as a result of an act declared unlawful
9 under the Missouri Merchandising Practice Act. Edmonds v. Hough, 344 S.W.3d 219,
10 223 (Mo. Ct. App. 2011) (citation omitted).
11 State laws also differ significantly when it comes to recovery. The CPA
12 allows actual damages, gives courts discretion to award treble damages, and allows for
13 attorneys fees. RCW 19.86.090. Californias Unfair Competition law allows
14 restitution but limits money damages to actual losses and does not provide for
15 attorneys fees. Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1148
16 (2003). The California Consumer Legal Remedies Act, in contrast, allows both actual
17 and punitive damages and permits attorneys fees to be awarded either to the plaintiff or
18 the defendant. Cal. Civ. Code 1780. Florida allows actual damages and reasonable
19 attorneys fees for the prevailing party, and a court may require a plaintiff to post a
20 bond at the outset to cover the defendants fees in the event it prevails. Fla. Stat. Ann.
21 501.211. Illinois allows a plaintiff to recover actual damages, attorneys fees or or any
22 other relief which the court deems proper, which includes punitive damages. 815 Ill.
23 Comp. Stat. 505/10a; Price v. Philip Morris, Inc., 219 Ill. 2d 182, 232, 848 N.E. 2d 1,
24 31-32 (2005). Massachusetts allows actual damages, and treble damages in the event
25 the violation was willful or knowing. Mass. Gen. Laws Ann. ch. 93A, 11.
26 Attorneys fees are also available, but not for expenses incurred after the receipt of a
27 reasonable settlement offer. Id. Michigan allows only actual damages in class actions.
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1 Mich. Comp. Ann. 445.911(b)(2). Minnesota allows actual damages, attorneys fees,
2 and other equitable relief as determined by the court. Minn. Stat. Ann. 8.31.
3 Missouri allows actual damages and gives courts discretion to award punitive damages
4 and attorneys fees. Mo. Ann. Stat. 407.025. New Jersey provides for actual damages,
5 and mandatory attorneys fees and treble damages. N.J. Stat. Ann. 56:8-19; Garcia v.
6 Gen. Motors Corp., 910 F. Supp. 160, 166 (D.N.J. 1995). Finally, in New York a
7 plaintiff may recover the greater of his actual damages or $50 and, in the courts
8 discretion, treble damages and attorneys fees. N.Y. Gen. Bus. Law 349(h), 350-d.
9 Other issues that could arise in this litigation include: what state of
10 mind, if any, need be shown on the part of defendants; whether a defendant may raise as
11 a defense a good-faith belief that the statement was not misleading; whether reliance is
12 required and, if so how it may be shown; whether an opportunity to return a box that
13 was not exercised shows lack of causation; whether actual damages include the cost of
14 returning a product; and what standard should be used to award damages or other relief
15 where such an award is within the courts discretion. The elements listed above are
16 only a sampling of the ways in which state laws may differ. Inquiring into each states
17 law on each of these questions, let alone instructing a jury, would be impracticable and
18 would frustrate the purpose of the class action systemto allow the class-wide
19 determination of claims in which common issues predominate over individual ones.
20 Plaintiffs class allegations must therefore be stricken.8
21
22 8
The conflict among applicable laws is just one of many factors by which individual
issues predominate. Courts routinely reject class treatment in consumer protection
23
cases because of the predominance of individual issues that they often raise. See, e.g.,
24 Grundmeyer v. Allstate Prop. & Cas. Ins. Co., No. C15-0464RSL, 2015 WL 9487928,
at *4 (W.D. Wash. Sept. 29, 2015) (striking class allegations, in complaint bringing
25 CPA and other claims, where it was apparent from the face of the complaint that class
treatment was inappropriate because individual issues of causation predominated);
26 Weidenhamer v. Expedia, Inc., No. C14-1239RAJ, 2015 WL 7157282, at *12 (W.D.
Wash. Nov. 13, 2015), (rejecting class treatment of a CPA claim and stating: the CPA
27
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1 B. Plaintiffs Proposed Class Definition Is Overbroad

2 Plaintiffs class allegations must also be stricken because the class
3 definition is impermissibly overbroad. Plaintiff defines the Class as [a]ll persons who
4 purchased one of the three box sets after March 6, 2013 in the United States. Compl.
5 66. A class many not be certified if it is defined so broadly as to include a great
6 number of members who for some reason could not have been harmed by the
7 defendants allegedly unlawful conduct. Torres v. Mercer Canyons Inc., 835 F.3d
8 1125, 1138 (9th Cir. 2016) (quoting Messner v. Northshore Univ. HealthSystem, 669
9 F.3d 802, 824 (7th Cir. 2012)). For example, in Sanders v. Apple Inc., 672 F. Supp. 2d
10 978 (N.D. Cal. 2009), the plaintiff brought unfair competition and warranty claims on
11 behalf of a class of purchasers of 20-inch iMacs that allegedly were marketed with the
12 representation that their displays could show millions of colors when in fact they
13 could show only 262,144. Id. at 988. The court struck the proposed class on multiple
14 grounds, including that the proposed class was overbroad and included individuals
15 who either did not see or were not deceived by advertisements and individuals who
16 suffered no damages. Id. at 991.
17 The class allegations here are similarly overbroad and must be stricken.
18 The types of purchasers in the alleged class who could not be harmed include, at a
19 minimum: (1) purchasers who read the list of films and understood the set did not
20 contain the 1967 Casino Royale or the 1983 Never Say Never Again; (2) James Bond
21 aficionados who would never expect the 1967 Casino Royale spoof and the 1983 non-
22
require[s] that the plaintiff show that the defendants conduct caused her injury and a
23
deception based theory of causation would likely cause individualized issues to
24 predominate over any common class); Oshana v. Coca-Cola Co., 472 F.3d 506, 510
(7th Cir. 2006) (affirming denial of certification of class of purchasers of Diet Coke
25 based on alleged deception about which artificial sweetener it contained because
Cokes marketing may have been only a minor factor in the purchasing decisions of
26 other class members . . . [and] some putative class members may have known [the truth]
and bought fountain Diet Coke anyway).
27
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1 franchise Never Say Never Again to be included in an official collection of James Bond
2 films; (3) purchasers who already owned those two films before they bought one of the
3 box sets; (4) purchasers who only intended to purchase the official Eon Productions
4 franchise films; (5) purchasers who bought a box set primarily to obtain the additional
5 materials and special features it contained; (6) purchasers who returned the sets for a
6 full refund when they learned they did not include the two films; (7) purchasers who
7 learned that a set did not contain the two films and could have returned the set for a full
8 refund but chose not to do so; (8) purchasers who bought the set because of the large
9 number of movies for a relatively low price; and (9) purchasers who did not read the
10 [a]ll the Bond films description before they purchased a set. Any purchaser in one or
11 more of these categories and others was not harmed by the alleged conduct.
12 Here, the various categories of uninjured class members would swallow
13 up much of the class. The Court should strike the overbroad class allegations.
14 V. CONLUSION
15 Based on the forgoing Defendants respectfully request that Plaintiffs
16 claims be dismissed with prejudice or, in the alternative, that her class allegations be
17 stricken.
18
19
20
21
22
23
24
25
26
27
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1 DATED: April 14, 2017 LANE POWELL PC
4 By: s/ John S. Devlin

John S. Devlin III, WSBA No. 23988
5 devlinj@lanepowell.com
1420 Fifth Avenue, Suite 4200
6
PO Box 91302
7 Seattle, WA 98111-9402
T: 206.223.7000
8 F: 206.223.7107
9 TAMERLIN J. GODLEY, CA SBN 194507

(Admitted Pro Hac Vice)
10
tamerlin.godley@mto.com
11 SAMUEL T. BOYD, CA SBN 297748
(Admitted Pro Hac Vice)
12 samuel.boyd@mto.com
MUNGER, TOLLES & OLSON LLP
13 350 S. Grand Avenue
14 50th Floor
Los Angeles, CA 90071-3426
15 T: 213.683.9100
F: 213.687.3702
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Attorneys for Defendants MGM Holdings Inc.,
17 Metro-Goldwyn-Mayer Studios Inc., Twentieth
18 Century Fox Home Entertainment LLC, and
Twenty-First Century Fox, Inc.
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206.223.7000 FAX: 206.223.7107
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1 CERTIFICATE OF SERVICE
2 I certify that on the date indicated below I caused a copy of the foregoing
3 document to be filed with the Clerk of the Court via the CM/ECF system. In
4 accordance with their ECF registration agreement and the Courts rules, the Clerk of the
5 Court will send e-mail notification of such filing to the attorneys of record.
6 I affirm under penalty of perjury under the laws of the State of Washington and
7 the United States that the foregoing is true and correct to the best of my knowledge.
8 14 2017, at Seattle, Washington.

SIGNED April ___,
9 s/ Leah Burrus
Leah Burrus
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206.223.7000 FAX: 206.223.7107
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MGM Motion To Dismiss

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MGM Motion To Dismiss

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Case 2:17-cv-00541-RSM Document 17 Filed 04/14/17 Page 1 of 30

1 THE HONORABLE RICARDO S. MARTINEZ

7 UNITED STATES DISTRICT COURT

11 Plaintiff, DEFENDANTS MOTION TO

4 II. SUMMARY OF ALLEGATIONS ....................................................................... 4

27 MOTION TO DISMISS OR MOTION TO STRIKE LANE POWELL PC

9 Bobo v. Optimum Nutrition, Inc.,

12 288 F.3d 1012 (7th Cir. 2002) ................................................................................... 15

17 Castagnola v. Hewlett-Packard Co.,

20 Danjaq LLC v. Sony Corp.,

24 Franklin v. Govt Emp. Ins. Co.,

8 Groden v. Random House, Inc.,

12 No. 12-CV-01861-LHK, 2014 WL 60197 (N.D. Cal. Jan. 7, 2014) ........................... 4

13 Hairston v. S. Beach Beverage Co.,

18 John v. Natl Sec. Fire & Cas. Co.,

23 McKinniss v. Sunny Delight Beverages Co.,

25 Messner v. Northshore Univ. Health System,

8 Pilgrim v. Universal Health Card, LLC,

12 713 F.3d 1175 (9th Cir. 2013) ..................................................................................... 4

13 In re Samsung Elecs. Am., Inc. Blu-Ray Class Action Litig.,

17 Schwartz v. Lights of Am.,

8 Avery v. State Farm Mut. Auto. Ins.

12 Chapman v. Skype Inc.,

20 Fed. Signal Corp. v. Safety Factors, Inc.,

25 Korea Supply Co. v. Lockheed Martin Corp.,

8 Price v. Philip Morris, Inc.,

14 California Consumer Legal Remedies Act, Cal. Civil Code 1750

20 Massachusetts Consumer Protection Act, Mass. Gen. Laws Ann. Chapter

4 RCW 62A.2-313..................................................................................................... 10, 11

14 be stricken if not dismissed entirely.

15 Motion to Dismiss. Plaintiff asserts three claims for relief: Violation of

19 breach of express warranty claim requires an affirmative misstatement. Product

22 here) an allegedly misleading statement is combined with clarifying wording, the

26 Plaintiff tries to get around these fatal defects by pointing to a single

6 collection is a matter of artistic judgment. See Metro-Goldwyn-Mayer, Inc. v. Am.

8 of a James Bond movie identified by various experts). Without allegations of deceptive

11 The breach of implied warranty claim fails as a matter of law because

12 representations between a manufacturer and a remote consumer are not actionable as an

17 warranty claim must be dismissed.

18 Motion to Strike. This suit should be dismissed but, at a minimum, the

22 law to purchasers in 49 other states. A nationwide class, therefore, would require

2 Wash. Sept. 29, 2015).

3 Second, Plaintiffs class definition is impermissibly overbroad. Class

21 purchased a set. None of these many purchasers could be harmed by Defendants

22 packaging. Plaintiffs attempt to represent an overbroad class is facially improper and

24 In short, if Plaintiffs individual claims somehow survive, the class

2 to preserve time and resources).

3 II. SUMMARY OF ALLEGATIONS

4 Express Warranty; and (3) Breach of Implied Warranty of Merchantability, RCW

5 62A.2-314. Compl. 78-92.

6 Plaintiff seeks to represent a putative nationwide class of: [a]ll persons

12 Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, and

14 Plaintiff alleges that Defendant Metro-Goldwyn-Mayer Studios Inc.

16 Defendant Twentieth Century Fox Home Entertainment LLC (Twentieth Century

23 III. PLAINTIFFS COMPLAINT SHOULD BE DISMISSED

2 is not bound to accept as true a legal conclusion couched as a factual allegation.

5 documents attached to the complaint, documents incorporated by reference in the

7 (9th Cir. 2003).

8 B. Plaintiff Has Not Pled a Cognizable Claim Under the Washington

12 conduct of any trade or commerce. RCW 19.86.020. A practice is deceptive if it is

14 Wash. 2d 27, 50, 204 P.3d 885, 895 (2009).

15 Plaintiffs Complaint acknowledges that the product packaging states

20 in the box set.