Zito v. United Technologies Corp., No. 3:15-cv-00744, 2016 WL 2946157 (D. Conn. Mar. 11, 2016)

By Kramer Levin Naftalis & Frankel LLP
Aug 8, 2016

I. FACTUAL ALLEGATIONS

“The complaint, which [the court] must accept as true for purposes of testing its sufficiency, alleges the following circumstances.” Monsky v. Moraghan, 127 F.3d 243, 244 (2d Cir. 1997).

There are two primary types of smoke alarms sold in the United States: ionization smoke alarms and photoelectric smoke alarms. Ionization smoke alarms generally detect flaming fires quicker than photoelectric smoke alarms do, whereas photoelectric smoke alarms generally detect smoldering fires quicker than ionization smoke alarms do. The defendants manufacture and sell ionization smoke alarms. The plaintiff alleges that:

For years, Defendants have known of the dangers posed by the design of these Ionization Smoke Alarms: they fail to adequately detect and, thus, to timely alert people to Smoldering Fires in their homes. For years, Defendants have purposefully concealed and failed to adequately disclose this unreasonable safety hazard to Class members and the public. As a result, hundreds of thousands if not millions of homeowners across the country have purchased one or more Ionization Smoke Alarms (or a home with one or more of them installed) without knowing that they will not perform the function for which they are needed.

(Plaintiff’s Original Class Action Complaint (Doc. No. 1) (“Complaint”) at ¶ 14.) Although ionization smoke alarms meet prevailing industry standards, the plaintiff alleges that such metrics are out of date.

The packaging of the ionization smoke alarms is relevant to the plaintiff’s claims. First, with respect to the use of the term “Smoke Alarm,” which is printed on the front of the box, the plaintiff alleges that “despite its label calling it a ‘Smoke Alarm,’ it will not sense and timely alert them to the presence of a smoking, Smoldering Fire.” (Id. at ¶ 32.) Second, the notice printed on the bottom of the box states:

Kidde strongly recommends that both ionization and photoelectric smoke alarms be installed to help insure maximum detection of the various types of fires that can occur within the home. Ionization sensing alarms may detect invisible fire particles (associated with fast flaming fires) sooner than photoelectric alarms. Photoelectric sensing alarms may detect visible fire particles (associated with slow smoldering fires) sooner than ionization alarms. This alarm features an ionization sensor designed to detect products of combustion using the ionization technique. It contains 0.9 microcurie of Americium 241, a radioactive material.

(Id., Exhibit A at 3.)1 The plaintiff alleges that the average consumer reading this notice would not understand that

the Ionization Smoke Alarm would not in fact alert him to the smoke of a slow Smoldering Fire in time for him to escape toxic fumes and gases, smoke inhalation, and other life-threatening effects of Smoldering Fires, or that the Ionization Smoke Alarm may take more than 30 minutes to sound an alarm in a Smoldering Fire, if at all.

(Complaint at ¶ 36.)

In substance, the plaintiff claims that purchasers would reasonably expect their smoke alarms “to alert and/or warn them and other home occupants in time to safely escape home fires, including the most common, deadly Smoldering Fires.” (Id. at ¶ 33 (emphasis in original).) Because the ionization smoke alarms do not detect smoldering fires as quickly as photoelectric smoke alarms do, and the defendants knew of this fact, the plaintiff claims that the defendants have intentionally made false and misleading statements to consumers in an attempt to sell more smoke alarms. The plaintiff purchased an ionization smoke alarm and represents that, had he known of the limitations of the ionization smoke alarms, he would not have bought one.

Count I alleges that “[b]y failing to disclose and actively concealing defects in the Ionization Smoke Alarms, Defendants engaged in unfair and deceptive practices” in violation of CUTPA (providing that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce,” Conn. Gen. Stat. § 42- 110b(a)). (Complaint at ¶¶ 52-53.) The plaintiff alleges that the defendants knew that the ionization smoke alarms were “defectively designed or manufactured, were not suitable for their intended use” and had a duty to disclose this information to consumers. (Id. at ¶ 55.) The plaintiff alleges that this duty arises because the defendants (1) had “exclusive knowledge of the defects,” (2) “[i]ntentionally concealed the defects” in their advertising and on their packaging, and (3) “[m]adeincomplete representations or wholesale omissions about the characteristics and performance of the Ionization Smoke alarms generally, while purposefully withholding material facts from Plaintiff that contradicted these representations.” (Id. at ¶ 56.) The plaintiff alleges that he relied on the defendants’ misrepresentations to his detriment.

In Count II, the plaintiff alleges that the ionization smoke alarms were not merchantable when they were sold because they are “inherently defective in that they do not and cannot reliably and timely detect the presence of the most common type of home fires, Smoldering Fires, and alert home occupants in sufficient time to allow them to avoid the effects of Smoldering Fires without suffering injury or death.” (Id. at ¶ 64.) The plaintiff alleges that the defendants were on notice of these defects and that, as a direct and proximate result of the defendants’ breach of the implied warranty of merchantability, the plaintiff has been damaged.

In Count III, the claim for fraudulent concealment, the plaintiff alleges that the defendants “intentionally concealed the . . . material safety and functionality information, or acted with reckless disregard for the truth, and denied Plaintiff and the other Class members information that is highly relevant to their purchasing decision.” (Id. at ¶ 69.) The plaintiff further alleges that the defendants “affirmativelymisrepresented to the Plaintiff . . . that the Ionization Smoke Alarms they were selling were new, had no significant defects, and would perform and operate [when] properly installed to detect smoke from fires.” (Id. at ¶ 69.) The plaintiff alleges that the “[d]efendants knew these representations were false when made” and that they had a “duty to disclose that these Ionization Smoke Alarms were defective, unsafe, and unreliable.” (Id. at ¶ 72.) The plaintiff alleges that, had the defendants made the proper disclosure, he would not have bought the ionization alarm and suffered economic damage in the form of lost benefit of the bargain, overpayment, and the diminished value of his smoke alarm.

II. LEGAL STANDARD

When deciding a motion to dismiss under Fed. R. Civ. P. Rule 12(b)(6), the court must accept as true all factual allegations in the complaint and must draw inferences in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although a complaint “does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 550, 555 (2007) (citing Papasan v. Allain,478 U.S. 265, 286 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alterations in original) (quoting Twombly, 550 U.S. at 557). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all allegations in the complaint are true (even if doubtful in fact).” Id. (citations omitted). However, the plaintiff must plead “only enough facts to state a claim to relief that is plausible on its face.” Id. at 1974. “The function of a motion to dismiss is ‘merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.’” Mytych v. May Dept. Store Co., 34 F. Supp. 2d 130, 131 (D. Conn. 1999) (quoting Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)). “The issue on a motion to dismiss is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims.” United States v. Yale New Haven Hosp., 727 F. Supp. 784, 786 (D. Conn. 1990) (citing Scheuer, 416 U.S. at 232).

In its review of a motion to dismiss for failure to state a claim, the court may consider “only the facts alleged in thepleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken.” Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993).

III. DISCUSSION

A. Count I (Violation of CUTPA)

CUTPA prohibits the use of “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conn. Gen. Stat. § 42-110b(a). The Complaint alleges that the defendants engaged in both unfair and deceptive trade practices. The defendants argue that Count I fails to state a claim upon which relief can be granted because there was no deception, as the packaging contains the very warning the plaintiff seeks.

The defendants argue that Count I is subject to the pleading requirements of Federal Rule of Civil Procedure 9(b) because it sounds in fraud. Ordinarily, “[s]ince fraud is not a necessary element of a state CUTPA claim, seeMiller v. Appleby, 183 Conn. 51, 54–55 (1981), a plaintiff does not need to meet the heightened pleading requirements of Fed. R. Civ. P 9(b), when asserting a state CUTPA claim in federal court.” Garcia v. Crabtree Imports, Inc., No. 3:05CV1324, 2006 WL 1646158, at *2 (D. Conn. June 14, 2006) (citing Martin v. American Equity Ins. Co., 185 F.Supp.2d 162, 167 (D. Conn. 2002)). However, to theextent that a CUTPA claim does allege fraud, the Rule 9(b) requirements apply. See e.g.,NCC Sunday Inserts, Inc. v.World Color Press, Inc., 692 F. Supp. 327, 330 (S.D.N.Y. 1988) (“A claim for unfair and deceptive trade practices under count three, which incorporates the same allegations as that for fraudulent overcharges under count two, is essentially an action sounding in fraud and must meet the provisions of Rule 9(b).”); 12 ROBERT M. LANGER ET AL., CONNECTICUT PRACTICE SERIES § 8.2 (2014-15) (“Federal courts have held that, since proof of fraud is not a necessary element of a CUTPA claim, a plaintiff need not meet the pleading requirements of . . . Fed. R. Civ. P. 9(b) applicable to fraud claims when asserting a state CUTPA claim in federal court unless the CUTPA claim is based on fraud. These decisions suggest that the greater pleading specificity of Rule 9(b) may apply to a CUTPA claim in which the plaintiff seeks punitive damages based on an intentional misrepresentation or failure to disclose.”). Here, the court does not need to address whether Count I sounds in fraud and is, therefore, subject to the Rule 9(b) pleading standard because it concludes that Count I fails to state a claim upon which relief can be granted under the lesser pleading standard of Rule 8(a).

1. “Deceptive” Trade Practices

An act or practice is deceptive [under CUTPA] if three conditions are met. First, there must be a representation, omission, or other practice likely to mislead consumers. Second, the consumers must interpret the message reasonably under the circumstances. Third, the misleading representation, omission, or practice must be material-that is, likely to affect consumer decisions or conduct.

Smithfield Associates, LLC v. Tolland Bank, 86 Conn. App. 14, 28 (2004) (quoting Miller v. Guimares, 78 Conn. App. 760, 775 (2003)). The defendants argue that Count I fails because there was no deception on the part of the defendant. The court agrees.

The plaintiff alleges that the “Defendants made numerous material statements or omissions about the benefits and characteristics of the Ionization Smoke Alarms that were either false or misleading. Each of these statements contributed to the deceptive context of Defendants’ unlawful representations and omissions as a whole.” (Complaint at ¶ 54.) In the Complaint, the plaintiff identifies two principal misrepresentations or omissions: (a) the use of the term “smoke alarm” on the front of the package, and (b) the allegedly inadequate disclosure of the limitations of the ionization smoke alarms.

Here, advertising the ionization smoke alarms as “smoke alarm[s]” is not a deceptive trade practice. The plaintiff alleges that “despite its label calling it a ‘Smoke Alarm,’ it will not sense and timely alert [consumers] to the presence of a smoking, Smoldering Fire” (Id. at ¶ 32), and therefore the labeling isdeceptive. While it is true that ionization smoke alarms may not detect smoke from smoldering fires as quickly as photoelectric smoke alarms do, the defendants’ failure to elaborate on this fact on the front of the package does not render use of the term “smoke alarm” deceptive because the alarms do, in fact, detect smoke. Advertising the product as a “smoke alarm” is, therefore, not a “representation, omission, or other practice likely to mislead consumers.” Furthermore, the packaging specifies several times that the smoke alarm employs ionization technology. There is also a description of ionization technology and photoelectric technology on the bottom of the box. Because the alarms detect smoke, as suggested by the term “smoke alarm,” describing the ionization smoke alarms as “smoke alarms” is not a deceptive trade practice.

Additionally, even if advertising the alarm as a “smoke alarm” were deceptive, the notice on the bottom of the box would neutralize any such deception. See Fink v. Time Warner Cable, 714 F.3d 739, 742 (2d Cir. 2013) (“under certain circumstances, the presence of a disclaimer or similar clarifying language may defeat a claim of deception”). The notice on the bottom of the box clearly explains that an ionization smoke alarm may not detect smoke from a smoldering fire in as timely a manner as would a photoelectric smoke alarm.

Likewise, to the extent that the plaintiff alleges deception because this notice is inadequate, the court disagrees. The plaintiff alleges that the defendants “failed to warn” the plaintiff that the “Ionization Smoke Alarms were defectively designed or manufactured, were not suitable for their intended use, and would not detect and timely alert Plaintiff to the presence of a smoldering fire[.]” (Complaint at ¶ 55.) However, the notice explicitly states:

Ionization sensing alarms may detect invisible fire particles (associated with fast flaming fires) sooner than photoelectric alarms. Photoelectric sensing alarms may detect visible fire particles (associated with slow smoldering fires) sooner than ionization alarms. This alarm features an ionization sensor designed to detect products of combustion using the ionization technique.

(Id., Exhibit A at 3.) It also states:

Kidde strongly recommends that both ionization and photoelectric smoke alarms be installed to help insure maximum detection of the various types of fires that can occur within the home.

(Id., Exhibit A at 3.) The packaging clearly states that there are different types of home fires, that there are different types of smoke alarms, that ionization smoke alarms may not detect smoldering fires as quickly as photoelectric fire alarms, and that the alarm contained in the box is an ionization smoke alarm. The defendants also recommend that consumers install both ionization smoke alarms and photoelectric smoke alarms in their homes. This information is on the outside of the box, easilyreviewed by a consumer prior to purchasing the product. The text is not unreasonably small or hidden; it is written clearly and stated in a way that a reasonable consumer is able to understand it. See Fink, 714 F.3d at 741 (“It is well settled that a court may determine as a matter of law that an allegedly deceptive advertisement would not have misled a reasonable consumer.”). The defendants have provided the information that the plaintiff alleges they omit.

In his opposition, the plaintiff primarily relies on Langan v. Johnson & Johnson Consumer Companies, Inc., 95 F.Supp.3d 284 (D. Conn. 2015), to support his contention that the packaging is deceptive. In Langan, the court addressed an allegation that Johnson & Johnson engaged in deceptive trade practices by using the word “natural” on bottles of Aveeno sunscreen. The plaintiff alleged that the labels were deceptive because the labels advertised that the products offered “natural protection” and contained “100% naturally-sourced sunscreen ingredients,” when in fact the products contained “numerous unnatural, synthetic ingredients.” Id. at 288. The plaintiff believed that the statements on the bottle meant that the sunscreen was made with 100% natural ingredients. On the other hand, the defendant argued that “the representations [were] literally true because the term ‘100%’ only applies to the ingredients in the products that provide protection from the sun (and not to other ingredients in the lotions that serve other purposes).” Id. at 289. The court concluded that it was

perfectly reasonable . . . that a consumer might interpret the phrase “100% naturally-sourced ingredients” on a sunscreen product label to mean that the whole product was natural. After all, the entire product—everything in the container—is applied by a consumer as a sunscreen, and it seems unlikely that a reasonable consumer would distinguish between the active “sunscreen ingredients” and the “nonsunscreen ingredients” inside a container.

Id. at 289. The court “[could not] conclude as a matter of law that the product ingredient list found on the back of the products clarifies whether the sunscreens contain natural ingredients. . . . [or that] merely listing the names of the various product ingredients—without specifying whether those ingredients are natural or unnatural—elucidates whether the sunscreen contains natural ingredients.” Id.

This case is not Langan. First, the term “smoke alarm” is not deceptive because the alarms in fact detect smoke. Also, unlike the list of ingredients on the sunscreen bottle, the notice on the smoke alarm box clearly elucidates what type of smoke particles the ionization smoke alarm is best at detecting and what type of smoke particles the photoelectric smoke alarm is best at detecting. It further advises the consumer to install both alarms. Thus, even if the court were to conclude the term “smoke alarm” could be considered deceptive, the notice on the bottom of the box neutralizes any such confusion.

Accordingly, the court concludes that the facts alleged do not state a claim for deceptive trade practices under CUTPA.

2. Unfair Trade Practices

The court also concludes that the plaintiff has failed to state a claim of unfair trade practices under CUTPA. Connecticut has adopted the “cigarette rule” for determining when a practice is unfair under CUTPA. When assessing a claim of unfair trade practices under CUTPA, the court considers:

(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons]

Ulbrich v. Groth, 310 Conn. 375, 409 (2013) (alterations in original) (quoting Harris v. Bradley Mem’l Hosp. & Health Ctr., 296 Conn. 315, 350 (2010)). “All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.” Id. (quoting Harris, 296 Conn. at 350-51 (2010)). The plaintiff has not stated a claim under any of the three criteria. As to the first criterion, the plaintiff has not alleged facts sufficient to support a claim that the defendants have offended public policy as established by Connecticut law. In hisopposition, the plaintiff again relies on Langan to support his claim that the defendants engaged in an unfair trade practice. Specifically, he quotes the following language from Langan with respect to public policy:

[The] plaintiff has sufficiently pleaded a claim that defendant's statements are unfair in violation of CUTPA. First, plaintiff plausibly alleges that defendant's statements offend an established public policy: the FDCA's prohibition on sunscreen “labeling [that] is false or misleading in any particular.” See 21 U.S.C. § 362(a) (prohibiting such labeling in cosmetics); 21 U.S.C. § 352(a) (prohibiting such labeling in the drug context).

Langan, 95 F. Supp. 3d at 290 (D. Conn. 2015) (alteration in original). The plaintiff in Langan identified two federal statutes that establish a public policy that the defendants’ acts violated. Here, however, the plaintiff does not identify any federal statute, Connecticut statute, or common law that establishes a public policy that the defendants allegedly violated. Rather, he points to (a) legislation in Vermont, requiring “photoelectric-only-type smoke detectors in the vicinity of any bedrooms and on each level of the dwelling,” Vt. Stat. Ann. tit. 9, § 2882 (West), (b) legislation in Iowa requiring that all newly-installed smoke detectors be “dual sensor smoke detectors,” Iowa Admin. Code r. 661-210.3(100), and (c) a letter from the Consumer Product Safety Commission (“CPSC”) letter to the Underwriters Laboratory, the entity responsible for testing all smoke alarms, recommending a newmethod of testing smoke alarm, as evidence of a public policy the defendants have offended. The Vermont and Iowa statutes have no bearing on a claim brought under CUTPA. As to the CPSC letter, a governmental organization’s recommendation for a new testing policy for smoke alarms does not constitute a public policy that would prohibit the defendants’ sale of ionization smoke alarms in the manner set forth in the Complaint. Additionally, the plaintiff does not dispute that the ionization smoke alarm in question “Complies with the following authorities: Underwriters Laboratories (UL)[,] Federal Housing Authority (FHA)[,] Housing and Urban Development (HUD)[,] [and] National Fire Protection Association (NFPA).” (Complaint, Exhibit A at 2.) The plaintiff does not agree with these authorities, but his disagreement does not constitute a public policy. Thus, because the plaintiff has failed to identify a public policy established by statute and/or common law that would prohibit the defendants’ actions set forth in the Complaint, he has not stated a claim that the defendants’ acts “offend[] public policy as it has been established by statutes [or] the common law.”

As to the second criterion, the plaintiff relies upon the alleged misrepresentations that give rise to the plaintiff’s “deceptive trade practices” claim to support his claim that the defendants’ actions were “immoral, unethical, oppressive, orunscrupulous.” (See Plaintiff’s Opposition and Memorandum in Support to Defendants’ Motion to Dismiss Plaintiff’s Original Class Action Complaint (Doc. No. 36) (“Opposition”) at 21-22.) However, since the court concludes that the defendants did not make material misstatements or omissions, the court likewise concludes that the defendants’ acts are not “immoral, unethical, oppressive, or unscrupulous.”

As to the third criterion, to establish a “substantial injury” the alleged injury “must be substantial; it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and it must be an injury that consumers themselves could not reasonably have avoided.” AG Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 216 (1990) (emphasis omitted) (quoting McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 569-70 (1984)). In Count I, the plaintiff alleges that “Defendants caused actual damage to Plaintiff and Plaintiff has sustained an ascertainable loss.” (Complaint at ¶ 58.) The actual damage incurred by the plaintiff is his purchase of an ionization smoke alarm. The plaintiff alleges that all potential class members have suffered the same injury. As noted in Langan, a small amount paid or overpaid by each class member taken in the aggregate can constitute a substantial injury. See Langan, 95 F.Supp.3d at 290. However, even though the plaintiff has pled a substantial injury, he hasnot alleged facts concerning the absence of countervailing benefits to consumers or competition.

Nor has he alleged facts to suggest that consumers themselves could not have avoided the injury. The plaintiff alleges that he only inspected the front and back of the package. (See Complaint at ¶ 35.) However, had he looked at the bottom of the package, where the limitations and benefits of ionization smoke alarms and photoelectric smoke alarms, respectively, are explained, he could have reasonably avoided the injury. Nonetheless, the plaintiff alleges, that even if he had read the bottom of the box,

he would still reasonably not have been aware that the Ionization Smoke Alarm would not in fact alert him to the smoke of a slow Smoldering Fire in time for him to escape toxic fumes and gases, smoke inhalation, and other lifethreatening effects of Smoldering Fires, or that the Ionization Smoke Alarm may take more than 30 minutes to sound an alarm in a Smoldering Fire, if at all.

(Id. at ¶ 36.) However, the notice on the box clearly states that the photoelectric smoke alarms may detect the smoke from smoldering fires quicker than ionization smoke alarms do and that consumers should install both alarms. Accordingly, the court concludes that plaintiff has failed to allege facts to suggest that consumers could not have reasonably avoided the injury, and consequently, has not adequately pled a substantial injury.

Because the plaintiff has failed to allege facts to support any of the three criteria of the cigarette test, the court concludes that the facts alleged do not state a claim for unfair trade practices under CUTPA.

B. Count II – Breach of the Implied Warranty of Merchantability (Conn. Gen. Stat. § 42a-2-314)
Conn. Gen. Stat. § 42a-2-314 provides in pertinent part:
(1) Unless excluded or modified as provided by section 42a- 2-316, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. . . . (2) Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promises or affirmations of fact made on the container or label if any.

Conn. Gen. Stat. § 42a-2-314 (West). The defendants argue, first, that the plaintiff’s claim sounds in contract and, consequently, he is required to allege privity. Because the plaintiff does not do so, the defendants argue that he cannot state a claim for breach of the implied warranty of merchantability. The defendants also argue that the plaintiff fails to state a claim for breach of the implied warranty of merchantability. The court concludes that it does not need to address the issue of privity because the plaintiff has failed tostate a claim for breach of the implied warranty of merchantability.

To be “merchantable” as that term is defined in the Code, goods must “pass without objection in the trade under the contract description,” be “fit for the ordinary purpose for which such goods are used,” and “run, within the variations permitted by the agreement of even kind, quality and quantity.” Conn. Gen. Stat. § 42a–2–314(2). Under this definition, “if the product conforms to the quality of other brands on the market, it will normally be merchantable.” [J. White, R. Summers, Uniform Commercial Code (2d Ed. 1980) 353.]

Standard Structural Steel Co. v. Bethlehem Steel Corp., 597 F. Supp. 164, 188 (D. Conn. 1984). Here, the plaintiff does not allege facts that suggest that the ionization smoke alarms at issue in this case do not conform to the quality of other brands on the market. To the contrary, the plaintiff states that “approximately 95% of Smoke Alarms sold in America are Ionization Smoke Alarms” and that “[t]he ionization chamber in all Ionization Smoke Alarms sold in America is fundamentally the same.” (Complaint at ¶ 17.) Also, as discussed above, while the plaintiff disagrees with some industry standards, he does not dispute that the alarm at issue “[c]omplies with the following authorities: Underwriters Laboratories (UL)[,] Federal Housing Authority (FHA)[,] Housing and Urban Development (HUD)[,] [and] National Fire Protection Association (NFPA).” (Id., Exhibit A at 2.) It may be true that smoke alarms are better if they include both ionization and photoelectric detection systems, but aproduct need not be the best version of that product in order to be merchantable. Cf. Standard Structural Steel, 597 F. Supp. 164, 188 (“a product may fall ‘considerably short of perfection,’ and yet be merchantable.” (quoting White & Summers, at 353)). Thus, the court concludes that the plaintiff has not alleged facts sufficient to support a claim that ionization smoke alarms are not merchantable.

C. Count III – Fraudulent Concealment

The defendants argue that Count III should be dismissed because there is no cause of action for fraudulent concealment under Connecticut law. They further argue that Count III fails to state a fraud claim. The plaintiff does not contend that there is a cause of action for “fraudulent concealment”; rather, he characterizes his claim as one for “fraud by omission” or “fraudulent nondisclosure.” (See Opposition at 27.) The court agrees that there is no independent cause of action for “fraudulent concealment” that would apply to this case.2 Accordingly, the court evaluates Count III as a fraud claim. As such, it is subject to the heightened pleading requirements of Rule 9(b).

Rule 9(b) provides: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.” Fed. R. Civ. P. 9(b).

In essence, Rule 9(b) places two further burdens on fraud plaintiffs—the first goes to the pleading of the circumstances of the fraud, the second to the pleading of the defendant's mental state. As to the first, we have held that the complaint must “(1) detail the statements (or omissions) that the plaintiff contends are fraudulent, (2) identify the speaker, (3) state where and when the statements (or omissions) were made, and (4) explain why the statements (or omissions) are fraudulent.” Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 187 (2d Cir. 2004) (internal quotation marks omitted). As to the second, though mental states may be pleaded “generally,” Plaintiffs must nonetheless allege facts “that give rise to a strong inference of fraudulent intent.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290–91 (2d Cir. 2006).

Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 171 (2d Cir. 2015). To state a claim for fraud under Connecticut law, a plaintiff must allege the following:

(1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury.

Sturm v. Harb Dev., LLC, 298 Conn. 124, 142 (2010) (quoting Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 777-78 (2002)).

As discussed with respect to Counts I and II, the plaintiff has not adequately alleged that the defendants made a false representation as a statement of fact that was untrue and known to be untrue by the party making it. Additionally, the plaintiff has failed to allege facts sufficient to satisfy the third requirement, fraudulent intent.

“The requisite ‘strong inference’ of fraud may be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994).

As to a motive to commit fraud, the plaintiff alleges that the defendants “intentionally made the false statements in order to sell Ionization Smoke Alarms.” (Complaint at ¶ 74.) However, “[a] general interest in self-enrichment [is] insufficient to satisfy Rule 9(b)'s requirement . . . ” Allstate Ins. Co. v. Advanced Health Professionals, P.C., 256 F.R.D. 49, 64 (D. Conn. 2008).

The plaintiff also fails to allege facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness. “Reckless conduct is, at the least, conduct which is highly unreasonable and which represents an extreme departure from the standards of ordinary care ... to the extent that thedanger was either known to the defendant or so obvious that the defendant must have been aware of it.” Chill v. Gen. Elec. Co., 101 F.3d 263, 269 (2d Cir. 1996) (alterations in original) (quoting Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38, 47 (2d Cir. 1978)). The plaintiff does not allege facts sufficient to suggest that the defendants’ actions were “highly unreasonable” or “an extreme departure from the standards of ordinary care.” The plaintiff makes no factual allegation that could show that the defendants’ behavior was outside industry norms or standards. To the contrary, he alleges that “approximately 95% of Smoke Alarms sold in America are Ionization Smoke Alarms” and that “[t]he ionization chamber in all Ionization Smoke Alarms sold in America is fundamentally the same.” (Complaint at ¶ 17.) Finally, the plaintiff alleges that the defendants’ notice is not conspicuous or informative enough, he does not allege facts sufficient to support a claim that the packaging is highly unreasonable and an extreme departure from the standards of ordinary care.

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss Plaintiff’s Original Class Action Complaint (Doc. No. 18) is hereby GRANTED.

The Clerk shall close this case.It is so ordered.

Signed this 11th day of March 2016, at Hartford, Connecticut.