Register v. Gnc Holdings, Inc.

BRIEF in Opposition

D.N.J.May 22, 2017

SHEPHERD, FINKELMAN, MILLER & SHAH, LLP James C. Shah Natalie Finkelman Bennett 475 White Horse Pike Collingswood, NJ 08107 Telephone: (856) 858-1770 Facsimile: (866) 300-7367 Email: jshah@sfmslaw.com nfinkelman@sfmslaw.com IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY BRANDON REGISTER, On Behalf of Himself and All Others Similarly Situated, Plaintiff, v. GNC HOLDINGS, INC., Defendant. Civil Action No. 1:17-cv-01320- RBK-AMD JURY TRIAL DEMANDED CLASS ACTION COMPLAINT PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS CLASS ACTION COMPLAINT OR, IN THE ALTERNATIVE, TRANSFER THE ACTION TO THE WESTERN DISTRICT OF PENNSLYVANIA Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 1 of 39 PageID: 77 i TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii I. INTRODUCTION AND SUMMARY OF ARGUMENT ............................... 1 II. STATEMENT OF RELEVANT FACTS ......................................................... 3 A. The Complaint’s Allegations .............................................................. 3 B. The Terms And Conditions And The Gold Card ................................ 5 III. ARGUMENT ..................................................................................................... 7 A. Standard Of Review ............................................................................. 7 B. The Terms And Conditions On Defendant’s Website And Gold Card Are Not Appropriate For Consideration Of GNC’s Motion .................................................................................................. 8 C. The Complaint States A Breach Of Contract Claim ........................... 10 1. Plaintiff Never Assented To The Terms And Conditions ............. 11 2. GNC’s Premature Termination Of The Program Breaches Its Contract With Plaintiff Even If Plaintiff Assented To A Provision That Permitted GNC To Terminate The Program “At Any Time” ................................................................................ 14 D. The Complaint States A CFA Claim ................................................... 19 1. The Complaint Alleges Unlawful Conduct Under The CFA ......... 20 2. The Complaint’s CFA Allegations Meet The Requirements Of Rule 9(b) .................................................................................... 25 E. Plaintiff Should Be Permitted Leave To Amend If The Court Deems The Complaint Deficient In Any Respect ................................ 28 Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 2 of 39 PageID: 78 ii F. The Court Should Deny Defendant’s Alternative Request To Transfer This Action To The Western District Of Pennsylvania ......................................................................................... 28 IV. CONCLUSION ................................................................................................ 31 Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 3 of 39 PageID: 79 iii TABLE OF AUTHORITIES Cases Adamson v. Ortho-McNeil Pharm., Inc., 463 F. Supp. 2d 496 (D.N.J. 2006) ........................................................................ 24 Adler Engineers, Inc. v. Dranoff Properties, Inc., 2014 WL 5475189 (D.N.J. Oct. 29, 2014) ............................................................ 28 Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 983 A.2d 604 (N.J. Super. Ct. App. Div. 2009) .................................................... 11 Atlass v. Mercedes-Benz USA, LLC, 2007 WL 2892803 (D.N.J. Sept. 25, 2007) ........................................................... 22 Bak–A–Lum Corp. v. Alcoa Building Prods., 351 A.2d 349 (N.J. 1976) ........................................................................... 15, 16, 17 Bosland v. Warnock Dodge, Inc., 197 N.J. 543 (2009)................................................................................................ 24 Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 864 A.2d 387 (N.J. 2005) ................................................................................. 14, 15 Butler v. Liberty Mut., 655 F. App'x 138 (3d Cir. 2016) ............................................................................ 19 Delaney v. Am. Express Co., 2007 WL 1420766 (D.N.J. May 11, 2007) ............................................................ 24 Dzielak v. Whirlpool Corp., 26 F. Supp. 3d 304 (D.N.J. 2014) .......................................................................... 27 Estate of Kensinger v. URL Pharma, Inc., 674 F.3d 131 (3d Cir. 2012) ................................................................................... 19 Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 4 of 39 PageID: 80 iv Family Fin. Centers LLC v. Cox, 2015 WL 790038 (E.D. Pa. Feb. 25, 2015) ........................................................... 30 Farley v. GameStop Corp., 2013 WL 4042434 (D.N.J. Aug. 7, 2013) ................................................. 21, 22, 26 Finnell v. Cramet, Inc., 289 F.2d 409 (6th Cir. 1961) ................................................................................. 19 Forman v. Davis, 371 U.S. 178 (1964) ............................................................................................... 28 Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007) ................................................................................... 27 Gordon v. United Cont’l Holding, Inc., 73 F. Supp. 3d 472 (D.N.J. 2014) .................................................................... 17, 18 Grossman v. USAir, Inc., 33 Phila. Co. Rptr. 427 (Pa. C.P. April 16, 1997) ........................................... 17, 18 Harnish v. Widener Univ. Sch. of Law, 931 F. Supp. 2d 641 (D.N.J. 2013) ........................................................................ 21 Harper v. LG Elecs. USA, Inc., 595 F. Supp. 2d 486 (D.N.J. 2009) ........................................................................ 27 Hassler v. Sovereign Bank, 644 F. Supp. 2d 509 (D.N.J. 2009), aff'd, 374 F. App'x 341 (3d Cir. 2010) ................................................................................................... 22, 23 Holdbrook Pediatric Dental, LLC v. Pro Computer Serv., LLC, 2015 WL 4476017 (D.N.J. July 21, 2015) ....................................................... 13, 14 In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. 1997)................................................................................... 8 Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 5 of 39 PageID: 81 v In re Mercedes-Benz Tele Aid Contract Litig., 257 F.R.D. 46 (D.N.J. 2009) .................................................................................. 22 In re Unisys Corp. Retiree Med. Ben. ERISA Litig., 58 F.3d 896 (3d Cir. 1995) ..................................................................................... 19 James v. Glob. TelLink Corp, 852 F.3d 262 (3d Cir. 2017) ............................................................................. 13, 29 Kemmerer v. ICI Americas Inc., 70 F.3d 281 (3d Cir. 1995) ..................................................................................... 18 Melville v. Spark Energy, Inc., 2016 WL 6775635 (D.N.J. Nov. 15, 2016) ............................................................. 8 Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324 (3d Cir. 2009) ................................................................................... 30 Mickens v. Ford Motor Co., 900 F.Supp.2d 427 (D.N.J.2012) ........................................................................... 22 Naporano Iron & Metal Co. v. Am. Crane Corp., 79 F. Supp. 2d 494 (D.N.J. 1999) .......................................................................... 28 New Jersey Citizen Action v. Schering-Plough Corp., 367 N.J. Super. 8 (App. Div. 2003) ....................................................................... 24 Parker v. Howmedica Osteonics Corp., 2008 WL 141628 (D.N.J. Jan. 14, 2008 ................................................................ 27 Pension Trust Fund for Operating Engineers v. Mortg. Asset Securitization Transactions, Inc., 730 F.3d 263 (3d Cir. 2013) ................................................................................... 17 Seidenberg v. Summit Bank, 791 A.2d 1068 (N.J. Super. App. Div. 2002) ........................................................ 16 Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 6 of 39 PageID: 82 vi Serrano v. Cablevision Sys. Corp., 863 F. Supp. 2d 157 (E.D.N.Y. 2012) ................................................................... 23 Seville Indus. Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786 (3d Cir.1984) .................................................................................... 26 Slack v. Suburban Propane Partners, L.P., 2010 WL 5392845 (D.N.J. Dec. 22, 2010) ............................................................ 23 Smith v. Citimortgage, Inc., 2015 WL 12734793 (D.N.J. Dec. 22, 2015) .................................................... 20, 21 Sons of Thunder, Inc. v. Borden, Inc., 690 A.2d 575 (N.J. 1997) ....................................................................................... 15 Sprague v. Gen. Motors Corp., 133 F.3d 388 (6th Cir. 1998) ................................................................................. 18 Urbino v. Ambit Energy Holdings, LLC, 2015 WL 4510201 (D.N.J. July 24, 2015) ............................................................. 23 Van Holt v. Liberty Mut. Fire Ins. Co., 163 F.3d 161 (3d Cir. 1998) ................................................................................... 24 Wilson v. Amerada Hess Corp., 773 A.2d 1121 (N.J. 2001) ............................................................................... 14, 15 Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295 (D.N.J. 2005), aff’d sub nom. Zavala v. Wal Mart Stores Inc., 691 F.3d 527 (3d Cir. 2012) ............................................................................ 9 Rules Fed.R.Civ.P. 9(b) ............................................................................................... 25, 26 Other Authorities New Jersey Consumer Fraud Act, N.J.S.A. § 56:8-1, et seq. .................................... 2 Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 7 of 39 PageID: 83 Plaintiff, Brandon Register (“Plaintiff”), respectfully submits this opposition to the Motion to Dismiss Class Action Complaint, or, in the alternative, Transfer this Action to the Western District of Pennsylvania (D.E. 9, the “Motion”), the Motion’s supporting memorandum (“D.E. 9-2, the “Memo”) and other supporting papers filed by Defendant, GNC Holdings, Inc. (“Defendant” or “GNC”). I. INTRODUCTION AND SUMMARY OF ARGUMENT This action arises from GNC’s false promises to its loyal customers. Throughout 2016, GNC offered year-long memberships in its Gold Card Program (“Program”), which entitled customers to a substantial discount for the GNC products they purchased, in exchange for $15. Naturally, the Program attracted customers who frequently purchased GNC’s products. But GNC knew all along that the “annual” Program memberships it promised would not last a year; GNC had planned to discontinue the Program in December 2016 to make way for its re- branding and launching of a different rewards program in 2017. Nevertheless, GNC continued to sell Program memberships up to a few weeks before it officially and abruptly (for the Program members) terminated the Program, while failing to return fees paid by consumers for the discontinued Program. Plaintiff was one of the customers and former Program members duped by GNC. As a previously loyal customer, Plaintiff paid $15 to renew his Program Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 8 of 39 PageID: 84 2 membership in March 2016, only to find out in December 2016 that GNC had terminated the agreement before the end of its term. GNC’s conduct indisputably breaches the contractual agreement it made with Plaintiff and its other customers. Moreover, GNC’s behavior is precisely the type of misconduct the New Jersey Consumer Fraud Act, N.J.S.A. § 56:8-1, et seq. (“CFA”), was intended to prevent. Nevertheless, GNC seeks dismissal of Plaintiff’s claims based primarily on the argument that its terms and conditions allow it to modify the Program at its discretion. GNC’s argument fails on multiple levels. First, as GNC concedes, the terms and conditions upon which it relies are not available at point of sales in its stores, where Plaintiff purchased the Gold Card. Thus, they do not apply to Plaintiff because he did not receive the terms and conditions upon his purchase of the Gold Card.1 Further, even if GNC’s terms and conditions did apply, its unilateral decision to nullify the material term setting forth the length of membership would still constitute a breach of contract and violate the CFA. Defendant’s argument that the CFA claim does not satisfy the pleading standard under Rule 9(b) is similarly unavailing. Plaintiff alleges, inter alia, where 1 The alternative request to transfer, to Pennsylvania, this action - brought under New Jersey law by a New Jersey citizen - fails for the same reasons. Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 9 of 39 PageID: 85 3 and when he saw the false and misleading representations and/or omissions made by GNC, how and why he made purchases relying on the misrepresentations and omissions, what he paid, and the content of the omissions and misrepresentations. (Compl., ¶¶ 17-20, 42-43.) The Complaint’s allegations of GNC’s unilateral discontinuation of the Program, as well as its scheme to sell a product to Plaintiff and the Class while knowing it would be discontinued, clearly state misrepresentation and omission claims under the CFA. For all of these reasons, and as demonstrated below, the Court should deny the Motion in its entirety. II. STATEMENT OF RELEVANT FACTS A. The Complaint’s Allegations GNC is in the business of selling nutritional supplements throughout New Jersey and the United States. (Compl. ¶¶ 1, 10, 12.) Until December 2016, GNC offered memberships to its Program to customers. (Id. ¶¶ 2, 11, 14, 19.) Under the Program, customers received substantial discounts on their purchases from GNC for a one-year period in exchange for an immediate $15 Program fee. (Id. ¶¶ 2, 13, 17.) In or about 2015, Plaintiff, a long-time GNC customer, became aware of the Program and its one-year benefits through GNC’s advertisements and marketing, and purchased a membership. (Id. ¶ 17.) In or about March 2016, Plaintiff Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 10 of 39 PageID: 86 4 renewed his Program membership at a GNC store located in Glassboro, New Jersey, so he could continue to receive the substantial discounts promised by GNC. (Id. ¶¶ 17-18, 20.) Thus, in exchange for Plaintiff’s payment of $15, GNC promised to provide Plaintiff discounts through the Program for a year; i.e., from March 2016 to March 2017. (Id. ¶ 20.) In December 2016, however, three months before the expiration of Plaintiff’s Program membership, GNC unilaterally eliminated the Program and thus, Plaintiff’s bargained-for benefit under the Program. (Id. ¶¶ 2, 14, 19.) Uncoincidentally, at the same time it cancelled the Program, GNC announced the launch of its “One New GNC” re-branding efforts and its “free points-based loyalty program” for 2017, which GNC later stated was the cause of its planned termination of the Program. See GNC’s Amended Annual Report for the fiscal year ended December 31, 2016, SEC Form 10-K/A, filed February 16, 2017 (“GNC 2016 Annual Report”), available at https://www.sec.gov/Archives/edgar/data/1502034/000162828017001449/form10- ka.htm.2 Remarkably, GNC continued to sell one-year Program memberships until 2 According to Jeff Hennion, GNC’s Executive Vice President and Chief Marketing and e-Commerce Officer in December 2016, the Gold Card was to be null and void. http://pittsburgh.cbslocal.com/2016/12/29/gnc-making-big-changes-as-part- of-new-campaign/ . Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 11 of 39 PageID: 87 5 just a few weeks before it cancelled the Program. (Compl. ¶ 15.) GNC did not provide any refunds, full or partial, when it abruptly eliminated the Program. (Id. ¶¶ 2, 21.) As such, Plaintiff and the other members of the proposed Class, who consist of former members of the Program whose one-year memberships had not yet expired when GNC unilaterally terminated the Program in December 2016, have been injured. (Id. ¶¶ 22-51.) Plaintiff alleges that GNC breached its contractual agreement to provide Plaintiff the Program benefits for a full year (id. ¶¶ 30-35), affirmatively misrepresented that it would provide the Program benefits for a full year, and omitted to disclose its intention of terminating the Program before that one-year term while still selling the Program, in violation of the CFA. (id. ¶¶ 36- 51.) B. The Terms And Conditions And The Gold Card In connection with its Motion, GNC submits the extrinsic “Membership Price Program Terms and Conditions” (D.E. 9-1 (“Macken Decl.”), Ex. A (“Terms and Conditions”)) and a copy of the GNC Gold Card (Macken Decl., Ex. B (“Gold Card”)) allegedly distributed to Program members, which GNC asserts govern memberships in the Program. (Memo, at 3-5.) GNC further asserts that the Terms and Conditions and the Gold Card include a provision whereby GNC reserved the Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 12 of 39 PageID: 88 6 right to cancel the Program at any time, and that the Terms and Conditions also include a forum selection clause requiring any lawsuit arising out of the Program to be subject to a court in Pennsylvania under Pennsylvania law. (Memo, at 4-5.) GNC does not, because it cannot, assert that Plaintiff or any consumer actually received a copy or notice of the Terms and Conditions or was informed that he would be bound by the Terms and Conditions if he chose to enroll in the Program. Indeed, GNC notably only represents that the Terms and Conditions were available online, while Plaintiff purchased his membership in person at a physical GNC store. (Compl. ¶ 18; Macken Decl., ¶ 2 (“[t]hese Terms and Conditions were available on GNC’s public website”).) As for the Gold Card itself, GNC admits that it was provided only after the purchase. (Memo, at 3.) And even though the Gold Card ostensibly has a signature line to reflect, inter alia, the signor’s acceptance of the Terms and Conditions (Macken Decl., Ex. B; Memo, at 8), GNC provides no evidence that Plaintiff ever signed it. Indeed, the Gold Card did not even require a signature for it to be used or for customer’s Program membership to be valid, as reflected by the text on the Gold Card: Your GNC Gold Card is good at participating GNC stores and www.gnc.com. Your GNC Gold Card cannot be combined with any other discount or benefit. GNC reserves the right to vary, change or discontinue the privileges granted by this card without prior notice. The card is valid for one Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 13 of 39 PageID: 89 7 year and expires on the date shown above. Card is not transferable. The card purchase price is non-refundable. Your signature constitutes acceptance of the terms and conditions listed hereon [sp.]. The GNC Gold Card and other additional materials are the sole property of GNC. @ 2003 GNC. All rights reserved. Signature: ________________________________________ (Macken Decl., Ex. B.)3 The Terms and Conditions are not referenced or relied upon in the Complaint.4 III. ARGUMENT A. Standard Of Review As this Court recently explained: Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss an action for failure to state a claim upon which relief can be granted. When evaluating a motion to dismiss, “courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips 3 Further, even if a signature was required, language on the back of the Gold Card does not refer the purchaser to a website or to the existence of any additional supposed terms and conditions other than the language on the Gold Card. To the contrary, according to the fine print, “Your signature constitutes acceptance of the terms and conditions listed hereon.” This language suggests that the only applicable terms and conditions were the ones on the Gold Card itself. 4 GNC’s criticism of Plaintiff for his failure to attach the Terms and Conditions, (Memo at 4, n. 3), is baseless since, as GNC is aware, Plaintiff never received any such terms. Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 14 of 39 PageID: 90 8 v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). A complaint survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). It is not for courts to decide at this point whether the non-moving party will succeed on the merits, but “whether they should be afforded an opportunity to offer evidence in support of their claims.” In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir. 2002). While “detailed factual allegations” are not necessary, 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.” Twombly, 550 U.S. at 555 (internal quotations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Melville v. Spark Energy, Inc., No. 15-8706 (RBK/JS), 2016 WL 6775635, at *2 (D.N.J. Nov. 15, 2016) (Kugler, J.). B. The Terms And Conditions On Defendant’s Website And Gold Card Are Not Appropriate For Consideration Of GNC’s Motion “As a general matter, a district court ruling on a motion to dismiss may not consider matters extraneous to the pleadings.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). There is only an “exception to the general rule” if the “document [is] integral to or explicitly relied upon in the complaint,” which is permitted because the “primary problem raised by looking to documents outside the complaint—lack of notice to the plaintiff—is dissipated ‘where plaintiff has actual notice ... and has relied upon these documents in framing the complaint.” Id. (emphasis original). Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 15 of 39 PageID: 91 9 Here, neither the Terms and Conditions nor the Gold Card is “integral to or explicitly relied upon” by the Complaint. Plaintiff purchased his membership in person at a GNC store in Glassboro, New Jersey (Compl. ¶ 18), without ever receiving notice of the Terms and Conditions, which were, according to GNC, available only online. (See Macken Decl., ¶ 2 (“[t]hese Terms and Conditions were available on GNC’s public website”).) Meanwhile, the Gold Card, which was logically provided only after Plaintiff enrolled, does not require the customer’s assent to its terms for the Gold Card to be valid, and, indeed, there is no evidence that Plaintiff signed the Gold Card. (See id., Ex. B.) As such, Plaintiff’s claims are not based upon nor do they rely upon the provisions of the Terms and Conditions or the Gold Card, and both extrinsic documents are improper for this Court to consider for GNC’s Motion. See Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295, 330 (D.N.J. 2005), aff’d sub nom. Zavala v. Wal Mart Stores Inc., 691 F.3d 527 (3d Cir. 2012) (“Wal–Mart has not sought to convert this motion into one for summary judgment, and this Court declines to consider the Contract in its resolution of the instant motion, insofar as the Contract was not attached to the complaint, the complaint does not refer to the Contract, and the parties have not engaged in discovery”). Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 16 of 39 PageID: 92 10 C. The Complaint States A Breach Of Contract Claim GNC admits that it entered into a contract with Plaintiff to enroll him as a Program member for one year in exchange for $15, but denies that it breached that contract when GNC nullified the Program nine months into Plaintiff’s membership. GNC’s entire Motion is based on the Terms and Conditions that reside somewhere on a website, and the back of the physical Gold Card, which ostensibly include provisions that reserved GNC the unilateral right to terminate the Gold Card Program at any time, without notice, and without refunds. (Memo, at 9.) The Court should reject GNC’s contention for two independent reasons. First, Plaintiff never received and was never referred to the Terms and Conditions when he enrolled in the Program and he only received the Gold Card after he enrolled, so he cannot be bound by those terms. Thus, GNC did not have the contractual authority to terminate the Program unilaterally before the expiration of Plaintiff’s one-year membership. Second, even if GNC did reserve the right to unilaterally terminate the Program, GNC’s conduct is untenable under the covenant of good faith and fair dealing which is part of every contract under New Jersey law. Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 17 of 39 PageID: 93 11 1. Plaintiff Never Assented To The Terms And Conditions Under New Jersey law, “[i]n order for there to be a proper and enforceable incorporation by reference of a separate document, the document to be incorporated must be described in such terms that its identity may be ascertained beyond doubt and the party to be bound by the terms must have had “knowledge of and assented to the incorporated terms.” Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 983 A.2d 604, 617 (N.J. Super. Ct. App. Div. 2009). There, the New Jersey Superior Court, Appellate Division, held that the billing rates set forth in a law firm’s “Master Retainer” was not a part of the law firm’s contract with its client because the reference was not sufficiently specific and the client did not have knowledge of or assent to the additional terms: [The retainer agreement] merely states that the client will be bound “by our standard billing practices and firm policies.” This reference is in no way specific or identifiable such that the A.G. practices and policies “may be ascertained beyond doubt.” The reference contained no document dates or an identifiable publication number; therefore, it fails the first prong necessary to incorporate A.G.’s Master Retainer by reference. Most importantly, moreover, there is no indication that the terms of the proposed incorporated document were known or assented to by defendants. To the contrary, it is without dispute that defendants were not shown and did not see the document until the fall of 2006. No one disputes that there was never any discussion concerning collection fees, interest on unpaid balances, or withdrawal fees between the parties until the relationship soured. Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 18 of 39 PageID: 94 12 Id. at 618–19. Likewise here, there is no indication in the Complaint or otherwise, that prior to subscribing to the Program with GNC, Plaintiff received notice, in a “specific or identifiable” manner, of the generically-named Terms and Conditions or terms on the Gold Card or that he would be bound by the Terms and Conditions or the terms on the Gold Card. And Plaintiff clearly did not receive such notice or give his assent to be bound. Plaintiff renewed his Program membership in person at a GNC store located in Glassboro, New Jersey, and was never informed of the Terms and Conditions or the terms on the Gold Card prior to or upon his enrollment. (Compl. ¶ 18.) Meanwhile, the purported Terms and Conditions were, according to GNC, available online, while the Gold Card is, logically, provided only after Plaintiff is enrolled. (See Macken Decl., ¶ 2 (“[t]hese Terms and Conditions were available on GNC’s public website”).) And though the Gold Card has a signature line to evince acceptance of the terms and conditions listed on the Gold Card itself,5 there is nothing to indicate that a signature was required for the 5 The language on the Gold Card itself does not preclude Plaintiff’s claim. The Gold Card only states that: “GNC reserves the right to vary, change or discontinue the privileges granted by this card without prior notice. The card is valid for one year and expires on the date shown above. Card is not transferable. The card purchase price is non-refundable.” Even if applicable, this language is ambiguous and not subject to a motion to dismiss, as it could be read to mean that GNC reserves the right to modify Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 19 of 39 PageID: 95 13 Program membership to be effective or that Plaintiff executed the Gold Card. (See Macken Decl., Ex. B.) As such, Plaintiff plainly did not have “knowledge of or assent[] to” the Terms and Conditions or the terms of the Gold Card, and those Terms and Conditions and the terms of the Gold Card do not bind Plaintiff. Without Plaintiff’s knowledge and assent, GNC did not have the authority to terminate the Program unilaterally before the expiration of Plaintiff’s one-year membership, and, thus, breached its agreement with Plaintiff when it did so anyway. The Third Circuit recently addressed an analogous situation in James v. Glob. TelLink Corp, 852 F.3d 262 (3d Cir. 2017), holding that the “terms of use” available on the website of a telecommunications service provider did not bind the consumer plaintiffs because the transaction “occurred over the telephone.” James, 852 F.3d at 267-68. So though the “company’s terms of use do state that using the telephone service would constitute acceptance of those terms . . . we cannot say that by their actions they manifested assent to terms contained on a website they never visited.” Id. at 268 n.3; see also Holdbrook Pediatric Dental, LLC v. Pro Computer Serv., LLC, No. CIV. 14-6115 NLH/JS, 2015 WL 4476017, at *7 terms other than the explicit term that the Gold Card expires in one year, which term is separate and not subject to variation. Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 20 of 39 PageID: 96 14 (D.N.J. July 21, 2015) (finding plaintiff was not bound by the arbitration provision of the “Terms and Conditions” for purposes of the motion to dismiss, because the contract did “not contain a statement drawing attention to the separate ‘Terms and Conditions,’ did not need to be reviewed electronically to be accepted, and the printed version did not obviously demonstrate the existence of additional ‘Terms and Conditions’”). The same conclusion is dictated here. 2. GNC’s Premature Termination Of The Program Breaches Its Contract With Plaintiff Even If Plaintiff Assented To A Provision That Permitted GNC To Terminate The Program “At Any Time” Even if Plaintiff was aware of and assented to a provision that permitted GNC to terminate the Program “at any time,” which he did not, GNC’s termination of the Gold Card Program prior to the expiration of Plaintiff’s one-year membership constitutes a breach of contract under New Jersey law. Under New Jersey law, “[e]very party to a contract, including one with an option provision, is bound by a duty of good faith and fair dealing in both the performance and enforcement of the contract.” Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 864 A.2d 387, 395 (N.J. 2005); Wilson v. Amerada Hess Corp., 773 A.2d 1121, 1126 (N.J. 2001). This includes contracts that grant a party the “unilateral right of termination,” as GNC claims its agreement with Plaintiff Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 21 of 39 PageID: 97 15 does here. 864 A.2d at 395 (citing Sons of Thunder, Inc. v. Borden, Inc., 690 A.2d 575 (N.J. 1997)). For contracts granting such “unilateral right of termination,” New Jersey law holds that the covenant of good faith and fair dealing requires a party “to refrain from doing anything that would destroy or injure the other party’s right to receive the fruits of the contract,” and to “protect each party’s reasonable expectations that the objects and purposes they sought to achieve by means of their agreement will be achieved.” Sons of Thunder, Inc., 690 A.2d at 585-86. Thus, a defendant may be liable “even if it does not ‘violat[e] an express term of a contract.’” Brunswick Hills Racquet Club, Inc., 864 A.2d at 396. In those cases, the crucial issue is whether a defendant “withheld vital information from plaintiff with the purpose of exploiting the terms of the contract without regard to the harm caused to plaintiff.” Id. at 397; see also Wilson, 773 A.2d at 1127 (decisions that are deferred in a contract to the discretion of one party (such as pricing) must be made in good faith and with proper motive). For example, in Bak–A–Lum Corp. v. Alcoa Building Prods., 351 A.2d 349 (N.J. 1976), the New Jersey Supreme Court concluded that the defendant violated the covenant of good faith and fair dealing in terminating an exclusive distributorship agreement and “deliberately hid its intention [to terminate from the Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 22 of 39 PageID: 98 16 plaintiff to ‘avoid any risk of cooling [the] plaintiff’s interest in selling [the defendant’s] products during the several months before the new distributors were named and made ready to go,’” while at the same time “knowing that the plaintiff continued to make financial investments to build on that distributorship.” Bak-A- Lum Corp., 351 A.2d at 349; see Seidenberg v. Summit Bank, 791 A.2d 1068, 1078 (N.J. Super. App. Div. 2002) (breach of covenant of good faith adequately alleged where plaintiffs “alleged that there was an expectation-despite the express contractual right of Summit to terminate-that the relationship would last until they reached retirement age,” where defendant was alleged to have acted in bad faith). Likewise here, Plaintiff understood that GNC had promised that his membership in the Program would be valid for a full one-year period, and relied on that representation when making the purchase. (Compl. ¶ 20.) But at the same time it was selling annual Program memberships, GNC was making plans for a new program and knew that it would terminate the Program at the end of 2016. (Id. ¶¶ 42-43.) When GNC abruptly cancelled the Program in December 2016, three months before the expiration of Plaintiff’s membership, as well as in advance of the expiration of the memberships of the Class, it was timed to coincide with the launch of its “One New GNC” re-branding efforts and the introduction of its “free points-based loyalty program” for 2017, which had been planned well in advance Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 23 of 39 PageID: 99 17 of the actual launch. Id. ¶ 14; GNC 2016 Annual Report.6 Thus, just as in Bak-A- Lum Corp., GNC violated New Jersey’s implied covenant of good faith and fair dealing when it “deliberately hid its intention” to cancel the Program by the end of 2016, even as it continued to market and collect payments for one-year subscriptions from Plaintiff and the Class throughout 2016. GNC used its self- described “unilateral” discretion in a manner that intentionally subjected Plaintiff and the Class to risks not contemplated at the time of purchase of a year’s worth of services and its actions are therefore a breach of the agreement. GNC’s authorities only confirm the severity of its bad faith. GNC relies primarily on the easily distinguishable Gordon v. United Cont’l Holding, Inc., 73 F. Supp. 3d 472 (D.N.J. 2014) and Grossman v. USAir, Inc., 33 Phila. Co. Rptr. 427 (Pa. C.P. April 16, 1997). (Memo, at 9-12.) Both Gordon and Grossman arose out of the respective defendant airline’s administration of its frequent flyer program. In Gordon, the plaintiff contested United’s preferential redemption policy for certain members, which was expressly and unambiguously disclosed to all members. See Gordon, 73 F. Supp. 3d at 479. In Grossman, the plaintiff 6 Form 10-Ks are subject to judicial notice and of no prejudice to GNC because GNC “itself filed the document with the SEC.” Pension Trust Fund for Operating Engineers v. Mortg. Asset Securitization Transactions, Inc., 730 F.3d 263, 277 n.8 (3d Cir. 2013). Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 24 of 39 PageID: 100 18 contested USAir’s decision to raise the amount of miles necessary to redeem tickets, the authority for which USAir had expressly reserved. See Grossman, 33 Phila. Co. Rptr. at 431. Unlike GNC here, in neither of those cases did the airline cancel its frequent flyer program altogether, and neither of those airlines continued to market their frequent flyer program to persuade consumers to fly their airlines only to cancel the programs within a year. Moreover, unlike here, the plaintiffs in Gordon and Grossman did not pay a yearly fee for the frequent flyer programs. In other words, the frequent flyer miles offered by those airlines were not the primary product or service the consumers bargained for—the miles were supplemental benefits that consumers received on top of their air travel or credit/debit card purchases. See Gordon, 73 F. Supp. 3d at 475; Grossman, 33 Phila. Co. Rptr. at 428. Here, in contrast, GNC completely eliminated the sole basis for Plaintiff’s bargain—an annual membership in the Gold Card Program. As such, neither airline’s conduct in Gordon or Grossman is comparable to the level of GNC’s bad faith here.7 Therefore, GNC’s motion to dismiss the breach of contract claim should be denied. 7 GNC also cites a couple of authorities applying the Employee Retirement Income Security Act of 1974 (“ERISA”). (Motion, at 10) (citing Sprague v. Gen. Motors Corp., 133 F.3d 388, 392 (6th Cir. 1998) (plaintiffs “allege that GM violated [ERISA] by denying them fully “paid-up” lifetime health care benefits”); Kemmerer v. ICI Americas Inc., 70 F.3d 281, 284 (3d Cir. 1995) (“[i]n this case, Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 25 of 39 PageID: 101 19 D. The Complaint States A CFA Claim The legislative history of the CFA reveals that, without exception, it is remedial legislation and, as such, “should be construed liberally.” Harnish v. Widener Univ. School of Law, 931 F. Supp. 2d 641, 647 (D.N.J. 2013) (quoting Int'l Union of Operating Eng’rs Local No. 68 Welfare Fund v. Merck & Co., 929 A.2d 1076, 1079 n.1 (2007)); see also Gonzalez v. Wilshire Credit Corp., 25 A.3d 1103, 1115 (N.J. 2011) (“The CFA is intended to be applied broadly in order to accomplish its remedial purpose, namely, to root out consumer fraud, and therefore to be liberally construed in favor of the consumer.”) (internal citations and quotations omitted). Likewise, the CFA was intended to be “one of the strongest consumer protection laws in the nation.” Governor's Press Release for Assembly Bill No. 2402, at 1 (June 29, 1971); see also Gennari, 691 A.2d at 364 (“The history of the [CFA] is one of constant expansion of consumer protection.”). arising under the Employee Retirement Income Security Act (ERISA), the district court held that the defendant company breached the terms of the executive deferred compensation plan that it offered to its highly compensated employees”); In re Unisys Corp. Retiree Med. Ben. ERISA Litig., 58 F.3d 896, 898 (3d Cir. 1995) (“[t]he retirees seek to recover post-retirement medical benefits under the terms of their welfare benefit plans and under [ERISA’s] provisions for appropriate equitable relief”)). ERISA is a “comprehensive and complex scheme for regulating employee benefits plans” that is completely irrelevant to New Jersey contract law. See Estate of Kensinger v. URL Pharma, Inc., 674 F.3d 131, 135 (3d Cir. 2012); see Butler v. Liberty Mut., 655 F. App’x 138, 140 (3d Cir. 2016) (state- law claims like the contract and fraud claims that Butler has brought in his complaint fall within the scope of ERISA preemption). GNC also cites a pre- ERISA pension plan authority out of the Sixth Circuit, where the Sixth Circuit recognized that the plaintiff employees had no contractual or vested rights to the plan benefits under Illinois law. See Finnell v. Cramet, Inc., 289 F.2d 409, 413 (6th Cir. 1961). GNC’s reliance on these authorities only reflects the weakness of its position. Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 26 of 39 PageID: 102 20 Smith v. Citimortgage, Inc., No. CV 15-7629 (JLL), 2015 WL 12734793, at *6 (D.N.J. Dec. 22, 2015). Here, Plaintiff has sufficiently plead a cause of action under the CFA. 1. The Complaint Alleges Unlawful Conduct Under The CFA Similar to its argument against Plaintiff’s breach of contract claim, GNC asserts that it did not engage in any unlawful conduct because its abrupt cancellation of the Program was within its “explicitly disclosed” reservation of right to alter or terminate the Program at any time. (Memo, at 14.) As a preliminary matter and as discussed above, supra Section III.C.1, Plaintiff never assented to GNC’s reservation of right to alter or terminate the Program at any time. (Compl. ¶¶ 17-18.) But regardless of whether GNC did reserve that right, its conduct still violates the CFA. GNC’s conduct in marketing and selling the one-year Program memberships and cancelling said memberships prior to the expiration of the one-year period violates the CFA. Furthermore, GNC’s knowledge that it would cancel the Program before a full year had elapsed constitutes unlawful conduct under both the affirmative misrepresentation and knowing omission prongs of the CFA. (Compl. ¶¶ 19-21, 42-43.) “To establish a knowing omission, a plaintiff must demonstrate that a defendant: ‘(1) knowingly concealed (2) a material fact (3) with the intention Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 27 of 39 PageID: 103 21 that plaintiff rely upon the concealment.’” Farley v. GameStop Corp., No. CIV. 12-4734 RBK/JS, 2013 WL 4042434, at *4 (D.N.J. Aug. 7, 2013) (Kugler, J.). Meanwhile, “[u]nder the NJCFA, affirmative acts must be ‘misleading’ and stand outside the norm of reasonable business practice in that it will victimize the average consumer.” Harnish v. Widener Univ. Sch. of Law, 931 F. Supp. 2d 641, 648 (D.N.J. 2013). Here, GNC’s express representation that membership in the Gold Card Program would last a year, in the face of the cancellation of the Program, was an affirmative misrepresentation. This is particularly true where, as here, it knew that representation to be false at the time of sale. See Smith, 2015 WL 12734793, at *5 (finding allegations that the defendant represented to the plaintiffs that they were approved for a mortgage modification when the plaintiffs were not even eligible, rose “to a level protected by the NJCFA”); Harnish, 931 F. Supp. 2d at 652 (finding defendant made “numerous false representations and omissions of material facts” regarding the school's reputation and post-graduation outcomes “with the intent to deceive and fraudulently induce reliance by [p]laintiffs and members of the [c]lass”). Similarly, GNC’s failure to disclose its intent to cancel the Program before a year would elapse, while at the same time continuing to collect fees for a year’s Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 28 of 39 PageID: 104 22 enrollment in the Gold Card Program, is a material omission. See Farley, 2013 WL 4042434, at *4 (finding that the plaintiff “plausibly stated a knowing omission” where the defendant failed to disclose that a video game supplement “was not included in the purchase of pre-owned games,” which defendant knew, but did not reveal, to induce consumers to purchase its pre-owned games); Mickens v. Ford Motor Co., 900 F.Supp.2d 427, 441 (D.N.J.2012) (“Ford knowingly concealed the galvanic corrosion defect from Mickens and the class members with the intent that they rely on the absence of such information when purchasing the affected vehicles”); Atlass v. Mercedes-Benz USA, LLC, No. CIV. 07-2720 (DRD), 2007 WL 2892803, at *6 (D.N.J. Sept. 25, 2007) (finding the plaintiff’s CFA allegations that the defendant “continued to market the analog Tele Aid system without informing consumers of its potentially brief life span” constituted unlawful conduct even under the more rigorous pleading requirement[s]” of Pennsylvania’s consumer protection law, and later certifying a CFA class in In re Mercedes-Benz Tele Aid Contract Litig., 257 F.R.D. 46 (D.N.J. 2009)). None of GNC’s authorities deal with the situation at issue here. For example, in Hassler v. Sovereign Bank, 644 F. Supp. 2d 509 (D.N.J. 2009), aff’d, 374 F. App’x 341 (3d Cir. 2010), the contractual documents, which the plaintiff did not dispute that he received when opening his account with the defendant bank, Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 29 of 39 PageID: 105 23 expressly disclosed the defendant bank’s alleged misconduct of “posting charges in a non-chronological matter.” Hassler, 644 F. Supp. 2d at 512, 515. To be analogous to Hassler, GNC would not only need to provide Plaintiff with the Terms and Conditions or notice of GNC’s reservation of the unilateral right to cancel the Gold Card Program at any time prior to Plaintiff’s enrollment, but also disclose that it intended to cancel the Gold Card Program in December 2016 or before Plaintiff’s one-year membership would expire. Obviously, GNC did not provide those disclosures. GNC’s other authorities are similarly distinguishable—those cases pertain to the defendant’s price and interest rate-setting practices, which was expressly disclosed. See Urbino v. Ambit Energy Holdings, LLC, No. CIV.A. 14-5184 MAS, 2015 WL 4510201, at *4-*5 (D.N.J. July 24, 2015) (defendant third-party energy supplier did not misrepresent its prices when agreement expressly disclosed that the rates are based on market prices and made no guarantees regarding costs); Serrano v. Cablevision Sys. Corp., 863 F. Supp. 2d 157, 168 (E.D.N.Y. 2012) (defendant telecommunication company disclosed “its policy of discretionary restriction of bandwidth and temporary suspension of internet service” where plaintiff contested same policy); Slack v. Suburban Propane Partners, L.P., No. CIV.A. 10-2548 JLL, 2010 WL 5392845, at *8 (D.N.J. Dec. 22, 2010) (defendant Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 30 of 39 PageID: 106 24 propane supplier expressly disclosed that it determined its prices “based upon market fluctuations and other factors” where plaintiff challenged the defendant’s pricing); Delaney v. Am. Express Co., No. CIV 06-5134 JAP, 2007 WL 1420766, at *7 (D.N.J. May 11, 2007) (defendants expressly disclosed annuity interest rate methodology where plaintiffs challenged the annuity interest rate changes). Here, of course, Plaintiff is not challenging any pricing methodology, but rather GNC’s premature and wholesale termination of the services he purchased.8 8 GNC also cites Van Holt v. Liberty Mut. Fire Ins. Co., 163 F.3d 161 (3d Cir. 1998), another wholly irrelevant case. There, the plaintiffs alleged that the defendant violated the CFA by committing “an unconscionable commercial practice by failing to address their damage claims promptly and ultimately denying the claim,” even though the “record is devoid of evidence that Liberty Mutual committed fraud, made misrepresentations, or misled the [plaintiffs].” Van Holt, 163 F.3d at 168. Here, in contrast, Plaintiff has alleged that he was misled to believe that his Gold Card Program membership would last a year. GNC’s other cases are wholly inapplicable. See Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 552-53, 560 (2009) (discussing whether the CFA has “a requirement that a consumer first demand a refund of an overcharged sum from a merchant prior to instituting litigation” and whether plaintiff suffered an ascertainable loss); Adamson v. Ortho-McNeil Pharm., Inc., 463 F. Supp. 2d 496, 503 (D.N.J. 2006) (alleged drug misrepresentations were, at most, puffery); New Jersey Citizen Action v. Schering-Plough Corp., 367 N.J. Super. 8, 14 (App. Div. 2003) (same). Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 31 of 39 PageID: 107 25 2. The Complaint’s CFA Allegations Meet The Requirements Of Rule 9(b) Next, GNC argues that the Complaint does not plead a CFA claim with the particularity required under Rule 9(b). (Memo, at 14-16.) Specifically, GNC charges that the Complaint does not define “when the alleged misrepresentations took place, where the alleged misrepresentations took place, who made these alleged misrepresentations, nor the content of these alleged misrepresentations.” (Memo, at 15.) This argument, which is based on GNC’s gross mischaracterization of, and self-serving selective citations to, the Complaint, is patently absurd. As a preliminary matter, GNC’s argument is completely contradicted by the Complaint. The Complaint alleges: • “when the . . . misrepresentations took place:” “[i]n or about 2015, when Plaintiff was made aware of GNC’s Program,” up to March 2016, when Plaintiff renewed his membership (Compl. ¶¶ 17-18, 20); • “where the . . . misrepresentations took place:” in New Jersey, including GNC’s Glassboro, New Jersey store (id. ¶¶ 18, 20); • “who made these . . . misrepresentations:” GNC, through its marketing and advertising in New Jersey (id. ¶¶ 17, 20, 42-43); and • the “content of these . . . misrepresentations:” GNC’s misrepresentation that Plaintiff’s membership would last a year and material omission that GNC intended to cancel the Program at the end of 2016 (id. ¶¶ 19-20, 42-43). Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 32 of 39 PageID: 108 26 In any event, as this Court has explained, “[a] plaintiff is not required to allege a date, place, or time to meet Rule 9(b)’s heightened standards.” Farley, 2013 WL 4042434. Instead, “Rule 9(b) requires a plaintiff to ‘plead with particularity the circumstances of the alleged fraud in order to place the defendants on notice of the precise misconduct with which they are charged’ exists to ‘safeguard defendants against spurious charges of immoral and fraudulent behavior.’” Id. (quoting Seville Indus. Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786, 791 (3d Cir.1984)). For example, in Farley, this Court found “the facts alleged by [p]laintiffs inject sufficient precision to notify [d]efendants of the alleged misconduct forming the basis of [p]laintiffs’ complaint” and satisfied Rule 9’s pleading requirements where the plaintiffs “allege that they purchased their pre-owned video games from Defendants between May 1, 2010 and November 10, 2010 and alleged purchasing the DLC for their video games at a later, unspecified time.” Id. at *3. Likewise, here, the Complaint informs GNC precisely of the “alleged misconduct forming the basis” of the Complaint: throughout 2016 and up to a few weeks prior to the termination of the Program, GNC marketed and sold annual Gold Card Program memberships, including to Plaintiff, knowing full well that the Gold Card Program would be terminated before a year had passed, but without Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 33 of 39 PageID: 109 27 disclosing that material fact. (Compl. ¶¶ 13-21, 42-51.) Indeed, the Complaint expressly informs GNC that it “engaged in deceptive practices in the sale of the Program memberships because it represented that the membership would be valid for a one-year period when, in fact, it knew that would not be the case,” and that GNC “also failed to disclose material facts regarding the Program memberships; namely, that they would not be valid for a one-year period.” (Compl. ¶¶ 42-43); see, e.g., Dzielak v. Whirlpool Corp., 26 F. Supp. 3d 304, 335 (D.N.J. 2014) (the complaint “sufficiently alleges that the relevant defendants affirmatively misrepresented that the machines were Energy Star-compliant by affixing and displaying the Energy Star logo”); Harper v. LG Elecs. USA, Inc., 595 F. Supp. 2d 486, 491 (D.N.J. 2009) (“[p]laintiffs have adequately plead fraud claims against [d]efendant by alleging that LG marketed defective washing machines as providing superior quality, and knowingly failed to disclose the defects in an attempt to sell more washing machines.” 9 Thus, GNC’s claim that it “has no way to know what 9 As noted above, Harper, which GNC cites, actually contradicts GNC’s argument. Meanwhile, in contrast to the facts alleged here, the allegations in Defendant’s other authorities were too vague to comprehend the precise fraud alleged. See Frederico v. Home Depot, 507 F.3d 188, 200-201 (3d Cir. 2007) (complaint only made “broad statements,” none of which “disclose the particular argument made on appeal as to the substance of the misrepresentation, namely that Home Depot misrepresented ‘the actual hours during which vehicles could be returned so to avoid or halt the accumulation of late fees’”); Parker v. Howmedica Osteonics Corp., No. CIV.A. 07-02400(JLL), 2008 WL 141628, at *3 (D.N.J. Jan. 14, 2008) Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 34 of 39 PageID: 110 28 led Plaintiff to this belief and GNC is thus unable to properly respond” is completely disingenuous. E. Plaintiff Should Be Permitted Leave To Amend If The Court Deems The Complaint Deficient In Any Respect If the Court determines that Plaintiff’s Complaint is, in any manner, deficient, which Plaintiff does not believe it is, Plaintiff respectfully requests that he be permitted leave to amend the Complaint to cure any deficiencies. Forman v. Davis, 371 U.S. 178, 182 (1964); Adler Engineers, Inc. v. Dranoff Properties, Inc., No. CIV. 14-921 RBK/AMD, 2014 WL 5475189, at *6 (D.N.J. Oct. 29, 2014) (“[u]nder the Federal Rules of Civil Procedure, leave to amend pleadings shall be ‘freely give[n]’ when ‘justice so requires’”) (Kugler, J.). F. The Court Should Deny Defendant’s Alternative Request To Transfer This Action To The Western District Of Pennsylvania Alternatively, GNC requests that, should the Court not dismiss the Complaint, the Court should transfer this action, brought by a New Jersey citizen ([p]laintiffs offer nothing more in the way of facts to evidence Howmedica’s unlawful behavior with respect to the marketing and sale of the Trident System” besides vague allegations of “unconscionable commercial practices”); Naporano Iron & Metal Co. v. Am. Crane Corp., 79 F. Supp. 2d 494, 512 (D.N.J. 1999) (plaintiff “ neither alleges that the information is within the control of the defendants, nor specifies which defendants were involved in which misrepresentations,” and “fails to inform defendants of the substance of these alleged misrepresentations”). Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 35 of 39 PageID: 111 29 under New Jersey law, to the District Court for the Western District of Pennsylvania pursuant to the forum selection clause of the Terms and Conditions. (Memo, at 16-20.) But GNC’s efforts to enforce the forum selection clause in the Terms and Conditions is fatally undercut by the fact that Plaintiff never received the Terms and Conditions, was never notified of the Terms and Conditions, and was never informed that the Terms and Conditions were part of the agreement when he enrolled in the Program. As discussed in Section III.C.1, Plaintiff renewed his Gold Card Program membership in person at a GNC store located in Glassboro, New Jersey, and was never informed of the Terms and Conditions. (Compl. ¶ 18.) Meanwhile, the purported Terms and Conditions were, according to Defendant, available only online. (See Macken Decl., ¶ 2 (“[t]hese Terms and Conditions were available on GNC’s public website”)). Thus, Plaintiff plainly did not have “knowledge of or assent[] to” the Terms and Conditions, and those Terms and Conditions do not bind Plaintiff. See James, 852 F.3d at 276 (where “terms of use” was available on the website but plaintiffs’ transactions “occurred over the telephone,” the Third Circuit could not “say that by [the plaintiffs’] actions they manifested assent to terms contained on a website they never visited”). Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 36 of 39 PageID: 112 30 Indeed, GNC does not, because it cannot, present any contradictory evidence. Under analogous facts, the Third Circuit has refused to enforce a selection clause embedded in the warranty documents presented after the purchase agreement at issue: Renaissance argues that . . . the Metcalfes are contractually prohibited from bringing their claims in any jurisdiction other than Florida as a result of a valid, binding forum selection clause contained in its warranty. The problem with this argument is that Renaissance failed to establish that the Metcalfes ever agreed to this warranty. The Metcalfes claim that Renaissance contacted them one month after they received delivery of the Prowler 246 and, at that point in time, solicited their signature in order to execute the warranty. Although Renaissance attached a copy of the warranty to an affidavit, it does not bear the signature of either Richard or Cynthia Metcalfe and Renaissance makes no attempt to explain why a signature is not present. Consequently, it appears that the warranty was not incorporated into the sales contract but was a separate agreement to which the Metcalfes did not assent. Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 329 (3d Cir. 2009); see also Family Fin. Centers LLC v. Cox, No. CIV.A. 14-5330, 2015 WL 790038, at *6 (E.D. Pa. Feb. 25, 2015) (refusing to enforce forum selection clause because parties did not agree to it). Likewise here, Plaintiff was only informed of the Terms and Conditions and the provisions therein in connection with GNC’s Motion. As a result, GNC cannot enforce the forum selection clause in the Terms and Conditions, or, for that matter, any other provision of the Terms and Conditions, against Plaintiff. Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 37 of 39 PageID: 113 31 IV. CONCLUSION For the reasons stated above, Plaintiff respectfully requests that this Court enter an Order denying GNC’s Motion to Dismiss Complaint, or, in the alternative, transfer this Action to the Western District Of Pennsylvania in its entirety. Dated: May 22, 2017 SHEPHERD, FINKELMAN, MILLER & SHAH, LLP By: /s/James C. Shah James C. Shah Natalie Finkelman Bennett 475 White Horse Pike Collingswood, NJ 08107 Telephone: (856) 858-1770 Facsimile: (866) 300-7367 Email: jshah@sfmslaw.com nfinkelman@sfmslaw.com Attorneys for Plaintiff and the Proposed Class Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 38 of 39 PageID: 114 CERTIFICATE OF SERVICE I hereby certify that on May 22, 2017, a true and correct copy of the foregoing was served with the Clerk of Court using the CM/ECF system and, by so doing, served all counsel of record electronically. /s/James C. Shah Case 1:17-cv-01320-RBK-AMD Document 12 Filed 05/22/17 Page 39 of 39 PageID: 115