To state an omission-based MMPA claim in federal court, a plaintiff may not rely on generic allegations that a defendant failed to disclose an alleged product defect. Nor may a plaintiff rely on prior consumer complaints as the basis for alleging that a defendant concealed a material fact.
That’s the lesson from Johnsen v. Honeywell International Inc., No. 4:14CV594 RLW, 2016 WL 1242545 (E.D. Mo. Mar. 29, 2016). In that case, plaintiff claimed that Honeywell’s representations about its humidifiers’ quality, along with a five-year warranty, amounted to an actionable “unfair practice” under the MMPA where the humidifiers allegedly broke down repeatedly.
On March 29, 2016, the Eastern District of Missouri ruled on defendant Honeywell International’s Rule 12(b)(6) motion to dismiss plaintiff’s complaint, holding that bare allegations that defendants “knew, or reasonably should have known” that their products contained some defect and that they “concealed and failed to disclose such alleged defects to the class members” cannot survive a Rule 12(b)(6) motion to dismiss under Federal Rule of Civil Procedure 9(b)’s heightened pleading standard. By contrast, the Court allowed plaintiff’s allegations about affirmative misrepresentations to stand because plaintiff identified the “who, what, where, when, and how” of the alleged fraud.
The Court cursorily examined plaintiff’s affirmative misrepresentation claim, reasoning that plaintiff’s allegation of a warranty that the humidifiers were completely “free from defect” could support the claim. In all likelihood, this claim will succumb to summary judgment.
The Court also found, however, that plaintiff had not sufficiently plead that Honeywell possessed the requisite mental state—bad faith or recklessness—required to support an MMPA claim based on an omission, not an affirmative misrepresentation:
Plaintiff merely states in the Second Amended Complaint that Defendant knew, or reasonably should have known, that the humidifiers had not been adequately tested and would thus prematurely fail and that Defendant concealed and failed to disclose such alleged defects to the class members. This allegation is conclusory and fails to meet the particularity requirements of Rule 9(b) and the scienter requirements of an omission claim under the MMPA. . . . Further, Plaintiffs allegations amount to a failure to notify consumers of consumer complaints. ‘[T]he fact that Defendant did not notify the Plaintiff that some [Honeywell Humidifier] purchasers reported a defect in their product does not amount to an omission of material fact in connection with the sale or advertisement of the [Honeywell Humidifier] and therefore cannot form the basis for an MMPA claim for ‘fraud by omission.’”
Johnsen v. Honeywell International Inc., No. 4:14CV594 RLW, 2016 WL 1242545, at *3 (E.D. Mo. Mar. 29, 2016).
In sum, absent specific, nonconclusory allegations about a defendant’s bad faith or recklessness in concealing a product defect, an MMPA claim based on omissions cannot stand. By extension, allegations of a failure to notify consumers about consumer complaints cannot support an MMPA claim.