IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN MILWAUKEE DIVISION

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN MILWAUKEE DIVISION DALE KESSLER, individually and on ) behalf of all others similarly situated, ) ) Plaintiffs, ) ) v. ) No. 2:17-cv LA ) SAMSUNG ELECTRONICS AMERICA, INC., ) ) Defendant. ) DEFENDANT SAMSUNG ELECTRONICS AMERICA, INC. S REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS COMPLAINT Case 2:17-cv LA Filed 06/15/17 Page 1 of 21 Document 13

2 TABLE OF CONTENTS INTRODUCTION...1 ARGUMENT...3 I. THE OPPOSITION CONFIRMS THAT WISCONSIN HAS THE MOST SIGNIFICANT CONTACTS TO PLAINTIFF S CLAIMS, WHICH MEANS THE NJCFA DOES NOT APPLY...3 II. THE OPPOSITION CONFIRMS THAT PLAINTIFF S STATE LAW WARRANTY CLAIMS SHOULD BE DISMISSED...6 A. The Terms and Conditions in the Warranty Guide are a Valid Contract...6 B. Plaintiff Cannot Salvage His State Law Warranty Claims by Pointing to the MMWA...9 C. Plaintiff Concedes He Did Not Comply with the Requirements of the Samsung Limited Warranty...10 III. THE OPPOSITION CONFIRMS THAT THE MMWA CLAIM FAILS...11 IV. THE OPPOSITION CONFIRMS THAT PLAINTIFF S UNJUST ENRICHMENT CLAIM SHOULD BE DISMISSED BECAUSE THERE IS A VALID CONTRACT...12 V. THE OPPOSITION CONFIRMS THAT PLAINTIFF LACKS STANDING TO SEEK INJUNCTIVE RELIEF BECAUSE THE COMPLAINT FAILS TO ESTABLISH CAUSATION OR THAT PLAINTIFF HAS ONGOING INJURY...13 CONCLUSION...14 i Case 2:17-cv LA Filed 06/15/17 Page 2 of 21 Document 13

3 TABLE OF AUTHORITIES Cases Page(s) AEP Indus. Inc. v. Thiele Techs. Inc., No. 16-C-391, 2016 WL (E.D. Wis. Sept. 2, 2016)...9 Anderson v. Gulf Stream Coach, Inc., 662 F.3d 775 (7th Cir. 2011)...10 Badger Bearing Co. v. Burroughs Corp., 444 F. Supp. 919 (E.D. Wis. 1977), aff d without opinion, 588 F.2d 838 (7th Cir. 1978)...9 Ball v. Sony Elecs. Inc., No. 05-C-307-S, 2005 WL (W.D. Wis. Sept. 28, 2005)...12, 13 Bearden v. Honeywell Int l, Inc., 720 F. Supp. 2d 932 (M.D. Tenn. 2010)...12 Carwile v. Samsung Telecomms. Am. LLC, No. 12-cv-5660-CJC, 2013 WL (C.D. Cal. July 9, 2013)...8 Chau v. Pre-Paid Legal Servs., Inc., No. B270277, 2017 WL (Cal. Ct. App. Feb. 15, 2017)...8 Cooper v. Samsung Elecs. Am., Inc., 374 F. App x 250 (3d Cir. 2010)...4 Corson v. Toyota Motor Sales, U.S.A., Inc., No. 2:12-CV JGB-VBK, 2013 WL (C.D. Cal. July 18, 2013)...11 Doster Lighting, Inc. v. E-Conolight, LLC, 2015 WL (E.D. Wis. Jun. 15, 2017)...4, 5 Elias v. Ungar s Food Prod., Inc., 252 F.R.D. 233 (D.N.J. 2008)...5 In re Fluidmaster, Inc., Water Connector Components Prods. Liab. Litig., 149 F. Supp. 3d 940 (N.D. Ill. 2016)...13 Grandalski v. Quest Diagnostics, 767 F.3d 175 (3d Cir. 2014)...4 Gray v. Bayer Corp., No. CIV.A JLL, 2011 WL (D.N.J. July 21, 2011)...5 ii Case 2:17-cv LA Filed 06/15/17 Page 3 of 21 Document 13

4 Haertle v. Brennan Inv. Grp., LLC, No. 14-CV-1347, 2017 WL (E.D. Wis. Mar. 8, 2017)...3 Han v. Samsung Telecomms. Am., LLC, No. 13-cv-3823, 2014 WL (C.D. Cal. Jan. 30, 2014)...8 Henderson v. U.S. Bank, N.A., 615 F. Supp. 2d 804 (E.D. Wis. 2009)...3 Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997)...2, 6, 7, 8 Le v. Kohls Dept. Stores, Inc., 160 F. Supp. 3d 1096 (E.D. Wis. 2016)...5 Maniscalo v. Brother Int l (USA) Corp., 709 F.3d 202 (3d Cir. 2013)...4 Martin v. LG Elecs. USA, Inc., 2015 WL (W.D. Wis. Mar. 31, 2015)...13 McNamara v. Samsung Telecomms. Am., LLC, No. 1:14-cv-01676, 2014 WL (N.D. Ill. Nov. 3, 2014)...8 Neuser v. Carrier Corp., No. 06-C-645-S, 2007 WL (W.D. Wis. May 15, 2007)...13 Noble v. Samsung Elecs. Am., Inc., No , 2017 WL (3d Cir. Mar. 3, 2017)...8 Norcia v. Samsung Telecomms. Am., LLC, 845 F.3d 1279 (9th Cir. 2017)...8 Park-Kim v. Daikin Indus., Ltd, No. 2:15-CV CAS(KKx), 2016 WL (C.D. Cal. Aug. 3, 2016)...12 Payton v. Cnty. of Kane, 308 F.3d 673 (7th Cir. 2002)...13 ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)...6, 8 Prompt Elec. Supply Co. v. Allen-Bradley Co., 492 F. Supp. 344 (E.D.N.Y. 1980)...11 Ray v. Samsung Elecs. Am., Inc., No. 15CV8540 (DLC), 2016 WL (S.D.N.Y. June 17, 2016)...10, 11 iii Case 2:17-cv LA Filed 06/15/17 Page 4 of 21 Document 13

5 Rehberger v. Honeywell Int l, Inc., No. 3: , 2011 WL (M.D. Tenn. Feb. 28, 2011)...11 Schimpf v. Gerald, Inc., 52 F. Supp. 2d 976 (E.D. Wis. 1999)...3 Schmidt v. Samsung Elecs. Am., Inc., No. C JCC, 2017 WL (W.D. Wash. May 25, 2017)...2, 7, 8 Sheffer v. Samsung Telecomms. Am., LLC, No. 13-cv-3466-GW, 2014 WL (C.D. Cal. Feb. 6, 2014)...8 Simic v. City of Chicago, 851 F.3d 734 (7th Cir. 2017)...13 Stearns v. Select Comfort Retail Corp., No JF (PVT), 2009 WL (N.D. Cal. Dec. 4, 2009)...12 Thiel v. Wride, 2013 WL (E.D. Wis. Nov. 4, 2013)...4 Tickanen v. Harris & Harris, Ltd., 461 F. Supp. 2d 863 (E.D. Wis. 2006)...8 Statutes Wis. Stat (3)(a)...9 Other Authorities Restatement (Second) of Conflict of Laws 148, cmt. i....4 iv Case 2:17-cv LA Filed 06/15/17 Page 5 of 21 Document 13

6 INTRODUCTION Samsung Electronics America, Inc. s ( Samsung s ) Motion to Dismiss ( Motion ) demonstrated that Plaintiff s claims fail as a matter of law: (i) Plaintiff is a Wisconsin resident who purchased his Galaxy S7 in Wisconsin and alleges injury in Wisconsin. Under these circumstances, Plaintiff has no claim under the New Jersey Consumer Fraud Act ( NJCFA ); (ii) Plaintiff s common law express and implied warranty claims fail due to inadequate notice and the Limited Warranty s disclaimer of all other express and implied warranties; (iii) the Magnuson-Moss Warranty Act ( MMWA ) claim fails because Plaintiff did not provide adequate notice and did not comply with the class action requirements for MMWA claims; (iv) the unjust enrichment claim fails because Plaintiff entered into a contract with Samsung when he purchased the Galaxy S7 and kept the device after receiving and reviewing the terms and conditions; and (v) Plaintiff failed to establish causation to have standing for injunctive relief. Plaintiff s opposition confirms these points. The opposition confirms that Wisconsin unquestionably is the state with the most significant contacts to Plaintiff s claims, and therefore, his NJCFA claim should be dismissed. Plaintiff alleges only one relevant contact with New Jersey the location of Samsung s corporate headquarters which is insufficient to allow a Wisconsin resident to assert a claim under New Jersey s consumer fraud statute. Wisconsin is the state with the most significant relationship to Plaintiff s claims: the parties entered into a contract in Wisconsin when Plaintiff purchased and began using his Galaxy S7 in Wisconsin, Plaintiff resides in Wisconsin, the alleged injury occurred in Wisconsin, and Plaintiff filed his lawsuit in Wisconsin. The opposition also confirms that Plaintiff s warranty claims should be dismissed. Plaintiff and Samsung entered into an agreement when Plaintiff purchased the Galaxy 7 and 1 Case 2:17-cv LA Filed 06/15/17 Page 6 of 21 Document 13

7 began using it. Under the Seventh Circuit s decision in Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997), when a consumer purchases a device with accept or return terms and conditions in the product packaging and fails to return the device, the consumer has accepted the terms and conditions and entered into a contract. The box Plaintiff received at the time of sale provided notice of the additional terms and conditions, the title page for the Warranty Guide included in the box notified Plaintiff of the terms and conditions and that use constituted acceptance. It is undisputed that Plaintiff reviewed the terms and conditions and elected to optout of arbitration. In a recent case involving similar formation facts, a court held that the terms and conditions for the Samsung Note7 were a binding agreement. See Schmidt v. Samsung Elecs. Am., Inc., No. C JCC, 2017 WL , *5 (W.D. Wash. May 25, 2017). The Court should reach the same conclusion here, and the Limited Warranty included with the device must be given full force and effect. The opposition confirms that Plaintiff s other claims also fail. Plaintiff s warranty claims should be dismissed because Plaintiff failed to provide sufficient notice of breach and also failed to provide Samsung with an opportunity to cure by returning the device, as required under the terms of the Limited Warranty and Wisconsin law. The lack of proper notice and opportunity to cure also is fatal to Plaintiff s MMWA claim. The unjust enrichment claim fails because there is a valid agreement, and the opposition confirms that Plaintiff lacks standing to seek injunctive relief because he has failed to demonstrate ongoing harm resulting from Samsung s alleged refusal to honor the Limited Warranty. For the reasons stated in Samsung s opening memorandum of law, and the points explained below, Plaintiff s Complaint should be dismissed in its entirety. 2 Case 2:17-cv LA Filed 06/15/17 Page 7 of 21 Document 13

8 ARGUMENT I. THE OPPOSITION CONFIRMS THAT WISCONSIN HAS THE MOST SIGNIFICANT CONTACTS TO PLAINTIFF S CLAIMS, WHICH MEANS THE NJCFA DOES NOT APPLY. Plaintiff concedes that he is a Wisconsin resident, that he bought his Galaxy S7 in Wisconsin, that the camera on his device supposedly broke in Wisconsin, and that a substantial portion of the events giving rise to the claims alleged in this Complaint took place within this District. Complaint ( Compl. ) at 15. He nevertheless seeks to assert a claim under the NJCFA by arguing that Samsung s fraudulent conduct emanates from New Jersey, where Samsung has its US headquarters. Dkt. 11 [Plaintiff s Opposition ( Opp. )] at 8. Under Wisconsin law, this conclusory assertion provides no basis for applying a New Jersey consumer fraud statute to a claim asserted by a Wisconsin resident based on a transaction and alleged injury that occurred in Wisconsin. Under Wisconsin choice-of-law rules, the first rule is that the law of the forum should presumptively apply unless it becomes clear that nonforum contacts are of the greater significance. Henderson v. U.S. Bank, N.A., 615 F. Supp. 2d 804, 808 (E.D. Wis. 2009) 1 ; see also Haertle v. Brennan Inv. Grp., LLC, No. 14-CV-1347, 2017 WL , at *6 (E.D. Wis. Mar. 8, 2017) (same). Here, Wisconsin has the most significant connection to Plaintiff s claims: Plaintiff purchased the Galaxy S7 in Wisconsin and thus viewed any alleged misrepresentation in Wisconsin. Opp. at 10. Plaintiff concedes that the alleged injury occurred in Wisconsin. See id.; Compl. at 18 (alleging device was resting on a counter at the time of the alleged injury); Schimpf v. 1 All internal quotations marks and citations are omitted and all emphasis is added, unless otherwise noted. 3 Case 2:17-cv LA Filed 06/15/17 Page 8 of 21 Document 13

9 Gerald, Inc., 52 F. Supp. 2d 976, 1003 (E.D. Wis. 1999) ( the place of a tort for conflicts purposes is not necessarily where the negligent act occurs but where the injury is felt ). Plaintiff is a resident of Wisconsin and his domicile is given greater weight than the location of Samsung s headquarters. See Maniscalo v. Brother Int l (USA) Corp., 709 F.3d 202, 207 (3d Cir. 2013) (plaintiff s home state, where he received and relied on defendants alleged misrepresentations, had the most significant contact to the claims, not New Jersey, the location of defendant s headquarters); Grandalski v. Quest Diagnostics, 767 F.3d 175, 182 (3d Cir. 2014); Cooper v. Samsung Elecs. Am., Inc., 374 F. App x 250, 255 (3d Cir. 2010); see also Restatement (Second) of Conflict of Laws 148, cmt. i. 2 Plaintiff agrees that Wisconsin law applies to his warranty claims and provides no reason why the Court should nevertheless apply New Jersey s consumer fraud statute to a transaction that occurred entirely in Wisconsin. See Opp. at 8, n.4 (citing Barden v. Hurd Millwork Co., Inc., 249 F.R.D. 316, 320 (E.D. Wis. 2008)). Plaintiff s own cases demonstrate that Wisconsin law applies. Plaintiff cites Doster Lighting, Inc. v. E-Conolight, LLC, 2015 WL (E.D. Wis. Jun. 15, 2017), which also involved warranty and consumer fraud claims. There, plaintiff argued that Wisconsin s consumer fraud law should apply to claims asserted on behalf of purchasers in the other 49 states because the defendant was based in Wisconsin and most of the relevant conduct in the case occurred in Wisconsin. Id. at *11. The court disagreed, concluding that the injuries were sustained where the customers took delivery of a defective item based on the misrepresentation. 2 Plaintiff tries to distinguish Maniscalo, Cooper, and Grandalski because they were decided under New Jersey law, but these decisions relied on principles from the Restatement (Second) of Conflict of Laws for claims alleging misrepresentation, and Wisconsin courts often look to these same principles for guidance on choice-of-law questions. See Thiel v. Wride, 2013 WL , at *2 (E.D. Wis. Nov. 4, 2013). 4 Case 2:17-cv LA Filed 06/15/17 Page 9 of 21 Document 13

10 In most instances, this would have been outside Wisconsin. Thus, the conflicts factors weigh in favor of applying the laws of states other than Wisconsin. Id. at *16. The same basic analysis applies here. Plaintiff s alleged injury was sustained in Wisconsin where he purchased the product. Wisconsin, not New Jersey, law applies. Plaintiff also cites Le v. Kohls Dept. Stores, Inc., 160 F. Supp. 3d 1096, 1115 (E.D. Wis. 2016), which did not even involve a choice-of-law analysis. There, the court held that a California plaintiff could assert California consumer fraud claims based on purchases made in California. Id. at The court also concluded that the plaintiff could state a claim under Wisconsin s consumer fraud statute because of unique language in that statute. Id. at But the case does not conduct a choice-of-law analysis and thus has no bearing on whether a Wisconsin plaintiff can assert a New Jersey statutory fraud claim based on a transaction and alleged injury occurring entirely within Wisconsin. Plaintiff also cites Elias v. Ungar s Food Prod., Inc., 252 F.R.D. 233, 247 (D.N.J. 2008), which allowed New York plaintiffs to sue a New Jersey entity in New Jersey under the NJCFA. But the facts here are different. Plaintiff did not sue Samsung in New Jersey; he sued in his home state of Wisconsin based on a transaction that occurred in Wisconsin. Plaintiff also ignores that Elias is based on an outdated choice-of-law analysis and is contrary to the weight of authority, which generally does not apply the NJCFA to transactions occurring outside New Jersey. See Gray v. Bayer Corp., No. CIV.A JLL, 2011 WL , at *6 (D.N.J. July 21, 2011) (noting that Elias was based on outdated law and concluding, [t]he Court thus follows the weight of authority counseling against the application of the NJCFA to out-of-state consumers ). This Court should reach the same conclusion and dismiss Plaintiff s NJCFA claim. 5 Case 2:17-cv LA Filed 06/15/17 Page 10 of 21 Document 13

11 II. THE OPPOSITION CONFIRMS THAT PLAINTIFF S STATE LAW WARRANTY CLAIMS SHOULD BE DISMISSED. Samsung demonstrated that Plaintiff s implied and express warranty claims should be dismissed because (i) Samsung s Limited Warranty conspicuously disclaimed any other warranties; and (ii) Plaintiff does not allege that he provided the required notice. In response, Plaintiff makes three primary arguments, each of which fails. A. The Terms and Conditions in the Warranty Guide are a Valid Contract. Ignoring Seventh Circuit precedent, Plaintiff argues that the terms and conditions of Samsung s Limited Warranty does not comport with fundamental principles of contract law and only create obligations for Samsung. Opp. at 7. Plaintiff is wrong. The terms and conditions of the Limited Warranty became a binding agreement when Plaintiff purchased and began using his Galaxy S7. This arrangement where terms and conditions are included in the box for the product and are accepted through conduct is a common practice in modern consumer transactions. Indeed, the Seventh Circuit has recognized that, under Wisconsin law, economic and practical considerations involved in the sale of consumer goods make it acceptable for terms and conditions to follow the initial transaction. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, (7th Cir. 1996). The seminal case on what courts have described as accept or return contracts is binding authority in this Circuit. See Hill v. Gateway 2000, 105 F.3d 1147, 1148 (7th Cir. 1997). In Hill, the plaintiffs ordered a computer over the phone, which they later received in a box that contained a list of terms that would govern unless the customer return[ed] the computer within 30 days. 105 F.3d at Unhappy with the computer, the plaintiffs filed an action against Gateway, and Gateway in turn sought to compel arbitration. The district court refused to compel arbitration, concluding that the present record is insufficient to support a finding of a 6 Case 2:17-cv LA Filed 06/15/17 Page 11 of 21 Document 13

12 valid arbitration agreement between the parties or that the plaintiffs were given adequate notice of the arbitration clause. Id. The Seventh Circuit reversed and remanded, concluding that: A vendor, as master of the offer, may invite acceptance by conduct, and may propose limitations on the kind of conduct that constitutes acceptance. A buyer may accept by performing the acts the vendor proposes to treat as acceptance. Id. at 1149 (quoting ProCD, 86 F.3d at 1452). As the Hill decision recognized, modern transactions, such as the purchase of a computer, or in this case the purchase of a smartphone, often necessitate accept-or-return terms and conditions. Id. Following the reasoning of Hill, a federal judge in Washington recently held that a very similar Samsung warranty guide for the Samsung Note 7 constituted a valid agreement under both Washington and California law. Schmidt v. Samsung Elecs. Am., Inc., No. C JCC, 2017 WL , *5 (W.D. Wash. May 25, 2017). Here, the formation process was similar to the one in Schmidt. Plaintiff was notified on the outside of the Galaxy S7 box that additional Samsung terms and conditions applied to the purchase. See Dkt. 8-1 [Galaxy S7 Exterior Box]. The box contained the Samsung Warranty Guide, Dkt. 8-2, which stated on the title page in bold type: [p]lease read this manual before operating your device... [t]his document contains important terms and conditions with respect to your device. By using this device, you accept those terms and conditions. Id. at *1. 3 Not only did Plaintiff receive notice of these terms and conditions, Plaintiff does not dispute that he read them because he followed the procedure to opt-out of arbitration, which is one of the additional terms and conditions. See Dkt. 8-2, 8 [McBeth Decl.]. Therefore, as in Schmidt, Plaintiff assented to the terms and conditions in the Warranty Guide by purchasing and using the device. See Schmidt, 2017 WL , at 3 Plaintiff points out that the Warranty Guide included a cover page (Opp. at 6), but fails to acknowledge that, in Schmidt, the key language regarding the terms and conditions appeared in first two pages. Schmidt, 2017 WL , at *1. Here, the language regarding the terms and conditions appeared on the title page, immediately after the cover page. Moreover, Plaintiff plainly read the terms and conditions, as he opted out of arbitration. 7 Case 2:17-cv LA Filed 06/15/17 Page 12 of 21 Document 13

13 *4 ( The Court finds that a reasonable person was on notice of the arbitration agreement, and thus Plaintiffs assented under California law. ). Plaintiff s contention that there is no binding agreement relies on cases outside this Circuit, including Norcia v. Samsung Telecomms. Am., LLC, 845 F.3d 1279 (9th Cir. 2017), and Noble v. Samsung Elecs. Am., Inc., No , 2017 WL , at *3 (3d Cir. Mar. 3, 2017), but Plaintiff ignores a series of cases, including one from a court in this Circuit, concluding that the terms and conditions in Samsung s product packaging were enforceable. See McNamara v. Samsung Telecomms. Am., LLC, No. 1:14-cv-01676, 2014 WL (N.D. Ill. Nov. 3, 2014); Sheffer v. Samsung Telecomms. Am., LLC, No. 13-cv-3466-GW, 2014 WL (C.D. Cal. Feb. 6, 2014); Han v. Samsung Telecomms. Am., LLC, No. 13-cv-3823, 2014 WL (C.D. Cal. Jan. 30, 2014); Carwile v. Samsung Telecomms. Am. LLC, No. 12-cv-5660-CJC, 2013 WL (C.D. Cal. July 9, 2013). Plaintiff also ignores that Norcia and Noble involved very different facts, as detailed in the Schmidt decision. See Schmidt, 2017 WL , at *4 ( Defendants have cured many of the defects noted in Norcia. ). In addition, the Norcia decision was based on the Ninth Circuit s erroneous belief that the reasoning of Hill had not been adopted in California, 4 whereas Hill and ProCD were decided by the Seventh Circuit and have been adopted by courts in Wisconsin. Tickanen v. Harris & Harris, Ltd., 461 F. Supp. 2d 863, 867 (E.D. Wis. 2006) ( [A]s in Hill, plaintiffs accepted the agreement by their failure to take affirmative action to not accept the agreement. ). 4 Contrary to the statement in Norcia, California courts have in fact adopted the reasoning of Hill. See Chau v. Pre-Paid Legal Servs., Inc., No. B270277, 2017 WL (Cal. Ct. App. Feb. 15, 2017). 8 Case 2:17-cv LA Filed 06/15/17 Page 13 of 21 Document 13

14 In short, the terms and conditions in the Samsung Limited Warranty are an enforceable agreement. Plaintiff chose to opt-out of arbitration, as was his right, but the remaining terms are binding on him, including those disclaiming any other implied or express warranties. Plaintiff s state law warranty claims should be dismissed. B. Plaintiff Cannot Salvage His State Law Warranty Claims by Pointing to the MMWA. As a backup position, Plaintiff argues that, even if the disclaimers are a contract, they are unenforceable under Section 2308(a) of the MMWA, which generally prohibits implied warranty disclaimers where a written warranty is provided. Opp. at 17. But this argument ignores Wisconsin law, which has upheld disclaimers of implied warranties so long as the disclaimer is in writing and conspicuous. See AEP Indus. Inc. v. Thiele Techs. Inc., No. 16-C-391, 2016 WL , at *5 (E.D. Wis. Sept. 2, 2016) (citing Wis. Stat (2)); Badger Bearing Co. v. Burroughs Corp., 444 F. Supp. 919, 923 (E.D. Wis. 1977), aff d without opinion, 588 F.2d 838 (7th Cir. 1978). Plaintiff does not dispute that Samsung s disclaimer was in writing and conspicuous. See McBeth Decl., Ex. B at 5-6 (stating: EXCEPT AS SET FORTH IN THE EXPRESS WARRANTY CONTAINED ON THE WARRANTY PAGE ENCLOSED WITH THE PRODUCT, THE PURCHASER TAKES THE PRODUCT AS IS, AND SAMSUNG MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE PRODUCT.... ). Under Wisconsin law, this language means that, except for the Limited Warranty, Plaintiff accepted his smartphone as is. Wis. Stat (3)(a) ( [A]ll implied warranties are excluded by expressions like as is, with all faults or other language which in common understanding calls the buyer s attention to the exclusion of warranties and makes plain that there is no implied warranty. ). Because the Limited Warranty 9 Case 2:17-cv LA Filed 06/15/17 Page 14 of 21 Document 13

15 disclaimed all other express and implied warranties, the state law warranty claims should be dismissed. Plaintiff nevertheless urges the Court to ignore Wisconsin law expressly allowing warranty disclaimers, citing Section 2308(a) of MMWA. But Plaintiff is conflating state law warranty claims with a federal warranty claim under the MMWA. As the Seventh Circuit has explained, the MMWA simply allows consumers to enforce [limited] written and implied warranties in federal court, [as provided in section 2310(d)(1),] borrowing state law causes of action. Anderson v. Gulf Stream Coach, Inc., 662 F.3d 775, 781 (7th Cir. 2011). This means that plaintiffs can bring federal claims premised on state [warranty] law violations, provided they comply with the independent requirements of the MMWA. Id. But the MMWA does not eviscerate all state law allowing warranty disclaimers. See Ray v. Samsung Elecs. Am., Inc., No. 15CV8540 (DLC), 2016 WL , at *4 (S.D.N.Y. June 17, 2016) (enforcing Samsung s warranty disclaimers as to the state warranty claims, notwithstanding Section 2308 of the MMWA). To the contrary, state warranty law controls the state law claims and the MMWA governs federal warranty claims. Id. Here, as shown, Wisconsin state law allows warranty disclaimers. For the MMWA warranty claim, Section 2308(a) may not permit disclaimers, but that does not allow Plaintiff to salvage his state warranty claims, which should be dismissed. C. Plaintiff Concedes He Did Not Comply with the Requirements of the Samsung Limited Warranty. In response to Samsung s showing that Plaintiff did not provide the required pre-suit notice and opportunity to cure, the Opposition points to allegations regarding two alleged calls with Samsung, one where Samsung opened a ticket and one where the representative allegedly told Plaintiff the camera damage was his fault. Opp. at Yet Plaintiff ignores other allegations, including paragraphs 26 and 30 of the Complaint, which acknowledge that: (i) 10 Case 2:17-cv LA Filed 06/15/17 Page 15 of 21 Document 13

16 Plaintiff was aware of a solution Samsung published online specifically stating that it was important to return the device to determine the cause of camera damage, and (ii) Samsung s Limited Warranty expressly requires return: During the applicable warranty period, provided the Product is returned in accordance with the terms of this Limited Warranty, SAMSUNG will repair or replace the Product, at SAMSUNG s sole option, without charge. Compl. 24, 26, 30. Under Wisconsin law, the return requirement is enforceable, and Plaintiff concedes that he did not comply. See Prompt Elec. Supply Co. v. Allen-Bradley Co., 492 F. Supp. 344, (E.D.N.Y. 1980) (under Wisconsin law, requirement that notice of breach be in writing was enforceable; oral notice held insufficient as a matter of law). Plaintiff cites no authority that would allow him to ignore this requirement based on the alleged phone calls. III. THE OPPOSITION CONFIRMS THAT THE MMWA CLAIM FAILS. Samsung demonstrated that the MMWA claim fails for at least two reasons, including that Plaintiff failed to provide the required notice and opportunity to cure and failed to provide notice that he was seeking to represent a putative class. As shown above, Plaintiff s two alleged phone calls do not satisfy the notice and return requirement, which also defeats his MMWA claim. See Ray, 2016 WL , at *7 (MMWA claim failed along with state law warranty claims). On this ground alone, the MMWA claim should be dismissed. In addition, Plaintiff concedes he has not complied with the MMWA s class action notice requirements, but cites two cases stating that these requirements can by satisfied after the suit is filed. Opp. at 19. Plaintiff ignores, however, that the weight of authority is to the contrary. Corson v. Toyota Motor Sales, U.S.A., Inc., No. 2:12-CV JGB-VBK, 2013 WL , at *7 (C.D. Cal. July 18, 2013) ( Plaintiffs must allege that they provided adequate pre-suit notice in order to proceed with their MMWA claim. ); Rehberger v. Honeywell Int l, Inc., No. 3: , 2011 WL , at *11 (M.D. Tenn. Feb. 28, 2011) (striking MMWA 11 Case 2:17-cv LA Filed 06/15/17 Page 16 of 21 Document 13

17 claim for failure to provide pre-suit notice); Bearden v. Honeywell Int l, Inc., 720 F. Supp. 2d 932, (M.D. Tenn. 2010) (dismissing MMWA putative class action claim where named individual had informed defendant that she would begin looking for an attorney, but did not provide notice that she intended to bring a class action ); Stearns v. Select Comfort Retail Corp., No JF (PVT), 2009 WL , at *10 (N.D. Cal. Dec. 4, 2009) ( While the [second amended complaint] contains allegations that the named Plaintiffs contacted Select Comfort about mold in their beds, Plaintiffs once again have failed to allege that they provided adequate notice to Select Comfort that they were acting on behalf of the class prior to filing suit. ); see also Park-Kim v. Daikin Indus., Ltd, No. 2:15-CV CAS(KKx), 2016 WL , at *20 (C.D. Cal. Aug. 3, 2016) ( all of plaintiffs warranty claims, including their MMWA claim, fail for failure to plead sufficient notice ). Plaintiff s MMWA claim should be dismissed. IV. THE OPPOSITION CONFIRMS THAT PLAINTIFF S UNJUST ENRICHMENT CLAIM SHOULD BE DISMISSED BECAUSE THERE IS A VALID CONTRACT. As shown, see supra, Section II.A., Plaintiff entered into a valid contract with Samsung when he purchased the Galaxy S7, received the terms and conditions in the product packaging, opted out of arbitration and did not return the device, thereby accepting Samsung s offer. Plaintiff does not dispute that unjust enrichment only exists in the absence of a contract between the parties. See Opp. at 20 (citing U.S ex rel. Roach Concrete, Inc. v. Veteran Pac., JV, 787 F. Supp. 2d 851, 858 (E.D. Wis. 2011)). Instead, Plaintiff argues that he purchased the device from U.S. Cellular, not Samsung. But that argument does not impact the conclusion that there was an agreement between Samsung and Plaintiff. The doctrine of unjust enrichment is a quasi contractual theory which applies only in the absence of a contract. Ball v. Sony Elecs. Inc., No. 05-C-307-S, 2005 WL , at *6 12 Case 2:17-cv LA Filed 06/15/17 Page 17 of 21 Document 13

18 (W.D. Wis. Sept. 28, 2005) (citing Cont l Cas. Co. v. Wisconsin Patients Compensation Fund, 164 Wis.2d 110, 118 (Wis. Ct. App. 1991)); see also Martin v. LG Elecs. USA, Inc., 2015 WL , at *7 (W.D. Wis. Mar. 31, 2015) ( plaintiffs in Wisconsin cannot recover under the quasi-contractual doctrine of unjust enrichment if an express contract exists ) (citing Carroll v. Stryker Corp., 658 F.3d 675, 682 (7th Cir. 2011)); Neuser v. Carrier Corp., No. 06-C-645-S, 2007 WL , at *9 (W.D. Wis. May 15, 2007) (applying the rule of Ball even though plaintiff s contract claim has failed because plaintiff had chosen not to pursue those contract claims). Because Plaintiff had an agreement with Samsung, he cannot assert an unjust enrichment claim under Wisconsin law. The claim should be dismissed. V. THE OPPOSITION CONFIRMS THAT PLAINTIFF LACKS STANDING TO SEEK INJUNCTIVE RELIEF BECAUSE THE COMPLAINT FAILS TO ESTABLISH CAUSATION OR THAT PLAINTIFF HAS ONGOING INJURY. Plaintiff has failed to demonstrate ongoing harm resulting from Samsung s alleged refusal to honor the Limited Warranty. Once Plaintiff replaced his phone (Compl. 23), he no longer could pursue a claim for injunctive relief. Plaintiff s claim that he, or a putative class member, suffer ongoing injuries because their camera lens may break again even after being replaced by a third-party vendor, Opp. at 22, is merely conjectural or hypothetical and insufficient to satisfy the injury requirement for injunctive relief. See Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017); see also Payton v. Cnty. of Kane, 308 F.3d 673, 682 (7th Cir. 2002) ( Standing cannot be acquired through the back door of a class action. ). Plaintiff cannot be deceived again, and therefore, injunctive relief is inappropriate. See In re Fluidmaster, Inc., Water Connector Components Prods. Liab. Litig., 149 F. Supp. 3d 940, 958 (N.D. Ill. 2016) (citing Mason v. Nature's Innovation, Inc., 2013 WL , at *5 (S.D. Cal. May 13, 2013) 13 Case 2:17-cv LA Filed 06/15/17 Page 18 of 21 Document 13

19 (dismissing injunctive claim because it was apparent that Plaintiff ha[d] no intention of buying Defendant s [product] again in the future )). CONCLUSION The Opposition confirms that Plaintiff fails to identify how any contact in New Jersey outweighs the significant contacts in Wisconsin, Plaintiff s home state. Plaintiff s NJCFA claim should be dismissed. Plaintiff and Samsung entered into a valid agreement when Plaintiff purchased the Galaxy S7 in Wisconsin, and he kept the device after receiving Samsung s terms and conditions. Those terms and conditions are binding and should be given effect. Additionally, the Opposition fails to overcome Samsung s other arguments supporting dismissal of the warranty claims, unjust enrichment claim, and request for injunctive relief. For the foregoing reasons, and the reasons provided in Samsung s opening memorandum of law in support of the motion to dismiss, Dkt. 7, Samsung respectfully requests that the Complaint be dismissed. 14 Case 2:17-cv LA Filed 06/15/17 Page 19 of 21 Document 13

20 Dated: June 15, 2017 Respectfully submitted, s/ David E. Sellinger David E. Sellinger 500 Campus Drive, Suite 400 Florham Park, NJ Phone: (973) Fax: (973) Richard A. Edlin MetLife Building 200 Park Avenue New York, NY Phone: (212) Fax: (212) Francis A. Citera Greenberg Traurig, LLP 77 West Wacker Drive, Suite 3100 Chicago, IL Phone: (312) Fax: (312) Attorneys for Defendant Samsung Electronics America, Inc. Case 2:17-cv LA Filed 06/15/17 Page 20 of 21 Document 13

21 CERTIFICATE OF SERVICE I hereby certify that on June 15, 2017, I electronically filed the foregoing Reply Memorandum of Law in Support of Samsung Electronics America Inc. s Motion to Dismiss the Complaint with the Clerk of Court for the United States District Court for the Eastern District of Wisconsin by using the Electronic Court Filing System ( CM/ECF ). I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. s/ David E. Sellinger David E. Sellinger Case 2:17-cv LA Filed 06/15/17 Page 21 of 21 Document 13