Silver v. Pep Boys-Manny, Moe, & Jack of Delaware, Inc. et alREPLY BRIEF to Opposition to MotionD.N.J.February 27, 2017 ME1 24271690v.2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY DEBRA A. SILVER on behalf of herself and those similarly situated, Plaintiff, v. PEP BOYS - MANNY, MOE & JACK OF DELAWARE, INC.; JANE AND JOHN DOES 1-10, individually and as owners, officers, directors, founders, managers, agents, employees and/or representatives of PEP BOYS - MANNY, MOE & JACK OF DELAWARE, INC.; and XYZ CORPORATION 1-10, Defendants. : : : : : : : : : : : : : : : : : Civil Action No. 3:17-cv-00018-FLW-LHG Honorable Freda L. Wolfson Honorable Lois H. Goodman ______________________________________________________________________________ REPLY BRIEF IN SUPPORT OF DEFENDANT PEP BOYS - MANNY, MOE & JACK OF DELAWARE, INC.’S MOTION TO DISMISS THE FIRST AMENDED CLASS ACTION COMPLAINT ______________________________________________________________________________ Of Counsel David R. Kott Edward J. Fanning Zane C. Riester On the Brief David R. Kott Zane C. Riester Christopher A. Rojao McCARTER & ENGLISH, LLP Four Gateway Center 100 Mulberry Street Newark, New Jersey 07102 (973) 622-4444 Attorneys for Defendant Pep Boys Manny, Moe & Jack of Delaware, Inc. Case 3:17-cv-00018-FLW-LHG Document 15 Filed 02/27/17 Page 1 of 16 PageID: 403 ME1 24271690v.2 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .....................................................................................................1 LEGAL ARGUMENT .....................................................................................................................3 POINT I PLAINTIFF’S FIRST AMENDED COMPLAINT FAILS TO STATE A CLAIM FOR RELIEF UNDER THE NJCFA BECAUSE PLAINTIFF CANNOT SATISFY THE ELEMENTS OF A CAUSE OF ACTION UNDER THE ACT ......................................................................3 A. Plaintiff Fails to Allege Any Conduct on the Part of Pep Boys that Constitutes an Unconscionable Commercial Practice Under the NJCFA….…………………………………………………………………3 B. Plaintiff’s First Amended Complaint Fails to Plead that Plaintiff Suffered an Ascertainable Loss that was Proximately Caused by any Alleged Unlawful Conduct by Pep Boys…………………8 POINT II PLAINTIFF’S FIRST AMENDED COMPLAINT FAILS TO STATE A CLAIM FOR RELIEF UNDER THE REPAIR REGULATIONS ..............10 CONCLUSION ..............................................................................................................................12 Case 3:17-cv-00018-FLW-LHG Document 15 Filed 02/27/17 Page 2 of 16 PageID: 404 ii ME1 24271690v.2 TABLE OF AUTHORITIES Page(s) FEDERAL CASES Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................................................9, 10 Boris v. Wal-Mart, 649 Fed. App’x 424 (9th Cir. 2016) ..........................................................................................6 Parker v. Howmedica Osteonics Corp., 2008 WL 141628 (D.N.J. Jan. 14, 2008) ...................................................................................8 Solo v. Bed Bath & Beyond, Inc., 2007 WL 1237825 (D.N.J. April 26, 2007) ...............................................................................8 Yingst v. Novartis AG, 63 F. Supp. 3d 412 (D.N.J. 2014) ..........................................................................................5, 6 STATE CASES Cox v. Sears Roebuck & Co., 138 N.J. 2 (1994) .......................................................................................................................8 DiBernardo v. Mosely, 206 N.J. Super. 371 (App. Div.), certif. denied, 103 N.J. 503 (1986) .......................................3 Dugan v. TGI Fridays, Inc., 2011 WL 5041391 (N.J. Super. Ct. App. Div. Oct. 25, 2011) ..............................................3, 4 Dugan v. TGI Fridays, Inc., 445 N.J. Super. 59 (App. Div.), appeal granted, 226 N.J. 543 (2016) ..................................1, 3 Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105 (App. Div. 2009) .......................................................................................8 Jones v. Sportelli, 166 N.J. Super. 383 (Law Div. 1979) ........................................................................................8 N.J. Citizen Action v. Schering-Plough Corp., 367 N.J. Super. 8 (App. Div.), certif. denied, 178 N.J. 249 (2003) .......................................3, 8 Thiedemann v. Mercedes-Benz U.S.A., LLC, 183 N.J. 234 (2005) ...................................................................................................................8 Case 3:17-cv-00018-FLW-LHG Document 15 Filed 02/27/17 Page 3 of 16 PageID: 405 iii ME1 24271690v.2 Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 139 N.J. 392 (1995) ...................................................................................................................3 STATE STATUTES N.J.S.A. 56:8-1 et seq. ....................................................................................................................10 N.J.S.A. 56:8-2 .................................................................................................................................3 N.J.S.A. 56:8-2.5 ..............................................................................................................................4 RULES Federal Rule of Civil Procedure 8 ...................................................................................................9 Federal Rule of Civil Procedure 12(b)(6) ........................................................................................6 REGULATIONS N.J.A.C. 13:45A-26C.2 ..................................................................................................................10 Case 3:17-cv-00018-FLW-LHG Document 15 Filed 02/27/17 Page 4 of 16 PageID: 406 ME1 24271690v.2 PRELIMINARY STATEMENT This reply brief is submitted on behalf of Defendant Pep Boys - Manny, Moe & Jack of Delaware, Inc. (“Defendant” or “Pep Boys”) in support of its Motion to Dismiss the First Amended Class Action Complaint (“Complaint”) for failure to state a claim upon which relief can be granted. Plaintiff’s opposition brief merely reiterates the conclusory allegations raised in the Complaint, and fails to cure the fundamental deficiencies outlined in Pep Boys’ moving brief. Instead of addressing these flaws, Plaintiff repeats her legally unsupportable argument that charging different prices for goods at different locations and through different channels of distribution constitutes an unlawful business practice. It does not. Indeed, Plaintiff has failed to identify any statute or case that supports this outlandish position. That is because there are none. As explained in detail in Pep Boys’ moving brief, there is no legal duty -- under any New Jersey statute, regulation or common law -- that requires a retailer to charge the same price for goods at different locations and through different channels of distribution. Likewise, there is no legal duty or statute that requires businesses to inform its customers that they could potentially purchase goods at a lower price through the internet. Plaintiff essentially asks this Court to expand and write in provisions of the New Jersey Consumer Fraud Act (“NJCFA”) and New Jersey Automobile Repairs Regulations (“Repair Regulations”) that do not exist and fly in the face of common sense. Incongruously, the only case that Plaintiff cites is Dugan v. TGI Fridays, Inc., 445 N.J. Super. 59 (App. Div.), appeal granted, 226 N.J. 543 (2016), 1 which bears little connection to the facts at hand and relates to a wholly different legal issue. Accordingly, 1 The New Jersey Supreme Court granted leave to appeal only the issue of whether the decision to certify the class was proper under New Jersey law. Case 3:17-cv-00018-FLW-LHG Document 15 Filed 02/27/17 Page 5 of 16 PageID: 407 2 ME1 24271690v.2 Plaintiff has utterly failed to state a claim that Pep Boys engaged in any unlawful business practice in violation of the NJCFA or the Repair Regulations and thus, Plaintiff’s Complaint should be dismissed with prejudice. Plaintiff’s opposition also fails to demonstrate that Plaintiff has suffered an ascertainable loss. In her opposition, Plaintiff merely provides printouts of screenshots of Pep Boys’ website, which Plaintiff and her attorney admit were taken on September 16, 2016 and September 18, 2016 - long after the transactions at issue took place. These screenshots do not - and cannot ever - demonstrate that the prices she paid for her car parts on September 23, 2015, April 9, 2016 and May 15, 2016, were either higher, lower, or the same as prices that were offered through Pep Boys’ website on those dates. Accordingly, Plaintiff cannot demonstrate that she suffered any ascertainable loss that was proximately caused by the alleged unlawful conduct by Pep Boys. Finally, Plaintiff appears to have essentially abandoned her argument that Pep Boys’ alleged conduct violates the Repair Regulations. Plaintiff’s opposition simply states that there is a complete “lack of guidance” by the New Jersey courts regarding whether the conduct alleged in her Complaint could constitute a violation of the regulations. Plaintiff’s acknowledgement that there is a “lack of guidance” is a concession that there is no legal authority that supports her claim that charging different prices for goods through different channels of distribution is a violation of the Repair Regulations. Accordingly, this Court should dismiss Plaintiff’s claim that Pep Boys violated the Repair Regulations. In sum, Plaintiff’s opposition fails to cure the deficiencies identified by Pep Boys in its Motion to Dismiss, and therefore, Plaintiff’s claims against Pep Boys should be dismissed in their entirety, with prejudice. Case 3:17-cv-00018-FLW-LHG Document 15 Filed 02/27/17 Page 6 of 16 PageID: 408 3 ME1 24271690v.2 LEGAL ARGUMENT POINT I PLAINTIFF’S FIRST AMENDED COMPLAINT FAILS TO STATE A CLAIM FOR RELIEF UNDER THE NJCFA BECAUSE PLAINTIFF CANNOT SATISFY THE ELEMENTS OF A CAUSE OF ACTION UNDER THE ACT A. Plaintiff Fails to Allege Any Conduct on the Part of Pep Boys that Constitutes an Unconscionable Commercial Practice Under the NJCFA Plaintiff’s Complaint should be dismissed because Plaintiff has failed to satisfy the first element of a NJCFA claim as she has not plead any facts that could demonstrate that Pep Boys engaged in an unlawful business practice. As set forth in detail in Pep Boys’ moving brief, to state a claim under the NJCFA, a Plaintiff must specifically allege the following three elements: (1) unlawful conduct by the defendants; (2) an ascertainable loss on the part of the plaintiff; and (3) a causal relationship between the defendant’s unlawful conduct and the plaintiff’s ascertainable loss. N.J. Citizen Action v. Schering-Plough Corp., 367 N.J. Super. 8, 12-13 (App. Div.), certif. denied, 178 N.J. 249 (2003). Unlawful conduct under the NJCFA is defined as engaging in an unconscionable commercial practice, deception, fraud, knowing concealment, or suppression of a material fact with the intent that others rely upon that fact. See N.J.S.A. 56:8-2. The New Jersey Supreme Court has observed that “[m]inor disagreements between consumer and business owner over quality of customer service, timing of service, or increased price is not consumer fraud.” Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 139 N.J. 392, 416 (1995). Indeed, New Jersey courts have recognized the “need to place reasonable limits upon the operations of the [NJCFA] ‘despite broad statutory language, so that its enforcement properly reflects legislative intent, however ascertained.” DiBernardo v. Mosely, 206 N.J. Super. 371, 375 (App. Div.), certif. denied, 103 N.J. 503 (1986) (quoting Jones v. Sportelli, 166 N.J. Super. 383, 388 (Law Div. Case 3:17-cv-00018-FLW-LHG Document 15 Filed 02/27/17 Page 7 of 16 PageID: 409 4 ME1 24271690v.2 1979)). Plaintiff’s Complaint fails to identify any activity on the part of Pep Boys that could constitute unlawful conduct under the NJCFA. As a threshold issue, Plaintiff’s reliance on Dugan v. TGI Fridays, Inc., 445 N.J. Super. 59 (App. Div.), appeal granted, 226 N.J. 54 (2016) (hereinafter Dugan II) is wholly misplaced. In fact, Plaintiff cites and relies on the incorrect case because Dugan II addresses the limited issue of whether the trial court’s decision to certify the plaintiff class was correct. That decision is irrelevant to this motion. Rather, in Dugan v. TGI Fridays, Inc., 2011 WL 5041391, at *1 (N.J. Super. Ct. App. Div. Oct. 25, 2011) (Dugan I), the Appellate Division affirmed the denial of the defendant’s motion to dismiss the class action consumer fraud complaint based on TGI Friday’s practice of failing to disclose prices for alcohol on its menu, in violation of N.J.S.A. 56:8-2.5. There, the defendant’s menu listed prices for all food items and wine, but did not list any prices for beer or mixed drinks. Id. at *1. The plaintiff sat at the restaurant bar and ordered a Coors Lite beer. Id. The plaintiff then moved to a nearby table in restaurant area, and ordered another beer. Id. Since the prices for these drinks were not listed on the menus, plaintiff did not know that she was charged more for a beer in the restaurant area than in the bar area until after she paid the bill. Id. Based on those circumstances, the plaintiff filed a putative class action complaint against TGI Fridays alleging, among other things, a violation of the NJCFA. Id. The defendant filed a motion to dismiss the complaint, which the trial court denied. Id. On appeal, the Appellate Division held that the plaintiff had pled enough of a cause of action under the NJCFA to survive a motion to dismiss under New Jersey’s pleading standards and affirmed the trial court’s denial of the defendant’s motion. Id. at *6. Specifically, the Court noted that the plaintiff had pled that TGI Fridays engaged in a knowing omission and violation of N.J.S.A. 56:8-2.5, which requires retail merchandise to be accompanied by a list price, by Case 3:17-cv-00018-FLW-LHG Document 15 Filed 02/27/17 Page 8 of 16 PageID: 410 5 ME1 24271690v.2 intentionally failing to list the prices for beer and mixed drinks on its menus. Id. By virtue of TGI Friday’s violation of the statute requiring the posting of prices, the Appellate Division held that plaintiff stated a claim under the NJCFA. Id. The court further noted that because the plaintiff actually purchased the product at the lower price and at the higher price, she had suffered an ascertainable loss that could have been proximately caused by the defendant’s alleged unlawful conduct. Id. Unlike Dugan I, Plaintiff here is not alleging that Pep Boys engaged in a knowing omission 2 or violated a statute by allegedly charging different prices for goods sold through different retail channels. Nor is there any allegation that Pep Boys failed to list the prices of the parts she purchased for her vehicle when she had her car serviced. In Dugan I, the defendant did not list its prices anywhere on its menus, which the court found critical to the plaintiff’s NJCFA claim. Here, Plaintiff merely alleges, without any proof, that the prices could have been listed online for an amount lower than the price listed at the store, which she agreed to pay. In addition, even under those circumstances, Plaintiff concedes that the price would be open, obvious, and listed for anyone who went on to the website. Likewise there is no allegation that Pep Boys either concealed the online price or prohibited anyone from looking up the price on a smartphone or computer, had they desired. Thus, Plaintiff’s allegations are wholly different from those alleged in Dugan I, and as such, Plaintiff is wrong to rely on that case in support of her claims. Plaintiff’s interpretation of Dugan I is also contrary to well-established law that Plaintiff has failed to cite in her opposition. For example, in Yingst v. Novartis AG, 63 F. Supp. 3d 412 (D.N.J. 2014), which is directly on point, District Court Judge Cecchi granted the defendant’s 2 Although Plaintiff’s First Amended Complaint could be read as vaguely alleging that Pep Boys engaged in a knowing omission, Plaintiff appears to have abandoned that point in her opposition and solely argues that Pep Boys engaged in an unconscionable commercial practice. Case 3:17-cv-00018-FLW-LHG Document 15 Filed 02/27/17 Page 9 of 16 PageID: 411 6 ME1 24271690v.2 motion to dismiss the plaintiff’s complaint alleging a violation of the NJCFA based on the defendant’s sale of the same merchandise at different prices in its retail stores for failure to state a claim. In that case, the plaintiff purchased Excedrin Migraine at a retail pharmacy in Cherry Hill, New Jersey to relieve her migraine headaches. Id. at 413. After purchasing Excedrin Migraine, she became aware that Excedrin Extra Strength consisted of identical ingredients as Excedrin Migraine, but was sold at a higher price. Id. Plaintiff filed a complaint alleging that the defendant “engaged in an ‘unconscionable commercial practice’ by charging a higher price for Excedrin Migraine than for Excedrin Extra Strength, despite the fact that they are pharmacologically identical products.” Id. at 416. The defendant moved to dismiss the complaint for failure to state a claim under Rule 12(b)(6). The court granted the defendant’s motion to dismiss and held that the defendant’s pricing of Excedrin Migraine up to $1.50 higher than Excedrin Extra Strength does not constitute an unconscionable commercial practice under the NJCFA at a matter of law. Id. at 417. The court explained, “there is no dispute that both Excedrin Migraine and Excedrin Extra Strength were properly labeled and contained no misinformation regarding the properties of their respective medications.” Id. at 416. It further explained that “Plaintiff does not cite any case, and the Court is aware of none, in which an ‘unconscionable commercial practice’ was found under the NJCFA based solely upon the disparate pricing of substantively identical products manufactured by the same defendant.” Id. Importantly, the court noted that “[to] be sure, Defendant created a pricing regime in which migraine sufferers must pay a higher price for Excedrin Migraine pills that are pharmacologically identical to Excedrin Extra Strength,” but found that “while this conduct may be strategical, not all such behavior is prescribed by law, as is the case here.” Id. at 417. Accordingly, the court granted the defendant’s motion to dismiss the complaint. Id. Similarly, Case 3:17-cv-00018-FLW-LHG Document 15 Filed 02/27/17 Page 10 of 16 PageID: 412 7 ME1 24271690v.2 in Boris v. Wal-Mart, 649 Fed. App’x 424, 425 (9th Cir. 2016) (applying New Jersey law) the Ninth Circuit held that a defendant’s sale of identical goods at different prices does not set forth a claim under the NJCFA as a matter of law. Here, as in Yingst and Boris, Plaintiff’s First Amended Complaint fails to allege any conduct on the part of Pep Boys that would constitute an unlawful commercial practice under the NJCFA. Plaintiff has failed to cite any statute or case that requires a retail store to charge a customer the same price for goods at different locations and in different channels of distribution, or that requires a retailer to inform customers that they can purchase goods at a lower price online. Indeed, there is none. Case law from this District has conclusively establishes that the conduct alleged in Plaintiff’s complaint does not and cannot constitute a violation of the NJCFA. Finally, Plaintiff’s threadbare argument that applying a discount to Plaintiff’s purchase of certain parts in connection with the service of her vehicle is somehow unconscionable because it “fortified the impressions that [Plaintiff] was receiving the lowest possible price for the auto parts that she purchased from the Defendant’s store” fails as a matter of law and fact. There is no statute, regulation, or case that supports the conclusion that by offering a discount a company has to provide the lowest possible price for that product offered throughout every separate distribution channel. Offering a discount to a customer is not a guarantee that the customer is receiving the lowest possible price. Indeed, many companies regularly offer discounts and promotions that are only available online through the company’s website, or are only available in-store. Under Plaintiff’s legally untenable theory, any time a company offered a discount on its website it would have to guarantee that it does not offer that product at a lower price in one of its many retail stores across the county. Such a finding would upend established business principles regarding the distribution and sales of consumer products and would prohibit conduct that the Case 3:17-cv-00018-FLW-LHG Document 15 Filed 02/27/17 Page 11 of 16 PageID: 413 8 ME1 24271690v.2 New Jersey Legislature never recognized -- nor intended to recognize -- as a violation of the NJCFA. Accordingly, Plaintiff cannot demonstrate that Pep Boys engaged in any unconscionable commercial practice under the NJCFA and, as such, Plaintiff’s First Amended Complaint should be dismissed with prejudice. B. Plaintiff’s First Amended Complaint Fails to Plead that Plaintiff Suffered an Ascertainable Loss that was Proximately Caused by any Alleged Unlawful Conduct by Pep Boys. In addition to Plaintiff’s complete inability to state a claim of unlawful commercial practice under the NJCFA - which alone is fatal to her claims - she also cannot demonstrate that she has suffered any ascertainable loss under the NJCFA that was proximately caused by any alleged conduct on the part of Pep Boys. In order to state a valid claim for relief under the NJCFA, Plaintiff must show that she suffered a “quantifiable or otherwise measurable loss as a result of the alleged CFA unlawful practice.” Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 114 (App. Div. 2009). Such a loss must be specifically pled to show “either an out-of-pocket loss or a demonstration of loss in value[.]” Solo v. Bed Bath & Beyond, Inc., 2007 WL 1237825, at *3 (D.N.J. April 26, 2007); Parker v. Howmedica Osteonics Corp., 2008 WL 141628, at *3 (D.N.J. Jan. 14, 2008); Thiedemann v. Mercedes-Benz U.S.A., LLC, 183 N.J. 234, 248 (2005) (defining “ascertainable loss” to mean “an actual loss”). A properly pled “ascertainable loss” is an “actual loss” that is not “hypothetical or illusory.” Thiedemann, 183 N.J. at 248. It “must be presented with some certainty demonstrating that it is capable of calculation.” Id. In addition, in order to state a cause of action under the NJCFA a plaintiff must demonstrate “a causal relationship between the defendant’s unlawful conduct and the Plaintiff’s ascertainable loss.” N.J. Citizen Action v. Case 3:17-cv-00018-FLW-LHG Document 15 Filed 02/27/17 Page 12 of 16 PageID: 414 9 ME1 24271690v.2 Schering-Plough Corp., 367 N.J. Super. 8, 12-13 (App. Div.), certif. denied, 178 N.J. 249 (2003); Cox v. Sears Roebuck & Co., 138 N.J. 2, 21-24 (1994). Plaintiff’s opposition brief fails to overcome Plaintiff’s fundamental deficiency with respect to demonstrating an ascertainable loss under the NJCFA. Plaintiff merely reiterates the statement contained in the Complaint that her attorney viewed Pep Boys’ website on September 18 and 19, 2016, and allegedly observed prices that were higher than the prices she paid for certain parts four months to one-year earlier. (See Pl.’s Br. at 9). Plaintiff admits that she cannot demonstrate that she suffered an ascertainable loss with respect to the purchases she made on September 23, 2015, April 9, 2016 and May 15, 2016. Instead, Plaintiff presents a parade of hypothetical scenarios and argues that, under some of those scenarios she could have paid more for a given part in the store than online. (See Pl.’s Br. at 9-10). Plaintiff’s hypothetical scenarios amount to nothing more than rank speculation that is wholly insufficient to state a claim for relief under Iqbal and Twombly, which require that “[f]actual allegations must be enough to raise a right to relief above the speculative level” and that the plaintiff must state “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555. Plaintiff alleges that “if given the opportunity for discovery” she could show that under some of her hypothetical scenarios there was a price difference and that she suffered an ascertainable loss. Plaintiff’s argument on this point is directly contrary to the holdings in Iqbal and Twombly, which make clear that a plaintiff must state a claim upon which relief can be granted in the complaint, and cannot obtain discovery to assist with stating a claim. Indeed, in those cases the Supreme Court has held that the plaintiff must meet the plausibility standard before the defendant should become entangled in discovery proceedings, and that when a complaint is deficient under Rule 8 the plaintiff is not entitled to discovery. See Ashcroft v. Iqbal, Case 3:17-cv-00018-FLW-LHG Document 15 Filed 02/27/17 Page 13 of 16 PageID: 415 10 ME1 24271690v.2 556 U.S. 662, 677 (2009). It is well-settled that when a complaint fails to “possess enough heft to show that the pleader is entitled to relief,” Twombly, 550 U.S. at 557, “the basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court.” Id. at 558. Plaintiff’s claims here are scuttled by her own failure to demonstrate that she suffered any loss in connection with her purchases of certain parts when she had her car serviced at Pep Boys. Since Plaintiff cannot demonstrate that she suffered any loss in connection with her purchases, she likewise will never be able to sufficiently plead causation. It is telling that Plaintiff does not attempt to distinguish the case law cited by Pep Boys and merely asks this Court for discovery so that Plaintiff can try to manufacture some scintilla of support for her bankrupt claims. Such a request cannot be entertained in accordance with the Federal Rules of Civil Procedure as interpreted by Iqbal, Twombly, and numerous Third Circuit decisions. Accordingly, Pep Boys’ motion to dismiss Plaintiff’s First Amended Complaint for failure to state a claim under the NJCFA should be granted and the Complaint should be dismissed with prejudice. POINT II PLAINTIFF’S FIRST AMENDED COMPLAINT FAILS TO STATE A CLAIM FOR RELIEF UNDER THE REPAIR REGULATIONS Plaintiff’s flawed, circular argument that Pep Boys somehow violated the New Jersey Automotive Repairs Regulations also fails to state a claim on which relief can be granted and should be dismissed. The Repair Regulations were intended to prevent certain deceitful practices to which customers were subjected when they attempted to have their vehicle serviced, such as commencing work without authorization. See N.J.A.C. 13:45A-26C.2. In pertinent part, the Repair Regulations forbid an “unconscionable commercial practice prohibited pursuant to Case 3:17-cv-00018-FLW-LHG Document 15 Filed 02/27/17 Page 14 of 16 PageID: 416 11 ME1 24271690v.2 N.J.S.A. 56:8-1 et seq. [NJCFA].” See N.J.A.C. 13:45A-26C.2(13). Thus, Plaintiff’s Repair Regulations claim is wholly derivative of her NJCFA claim, which, as noted above, fails as a matter of law. Plaintiff’s opposition brief concedes that Pep Boys’ alleged conduct does not violate any specific provision of the Repair Regulations, but asserts that there is a “lack of guidance by the New Jersey Supreme Court” as to whether Pep Boys’ conduct could constitute a violation of the Repair Regulations. However, the Repair Regulations -- by their terms -- do not require Pep Boys to charge a customer the same price for goods at different locations and through different channels of distribution. Nor do they require that businesses inform customers that they can purchase goods at a lower price through the company’s website. Indeed, there is no regulatory provision or law that requires this and no case that has ever held that a business is required to do so. Therefore, Plaintiff’s claim under the Repair Regulations must be dismissed as a matter of law. Case 3:17-cv-00018-FLW-LHG Document 15 Filed 02/27/17 Page 15 of 16 PageID: 417 12 ME1 24271690v.2 CONCLUSION For the foregoing reasons, Pep Boys respectfully requests that this Court grant its motion to dismiss Plaintiff’s First Amended Class Action Complaint for failure to state a claim upon which relief can be granted and that this Court dismiss the First Amended Class Action Complaint in its entirety, with prejudice. Respectfully submitted, McCARTER & ENGLISH, LLP Attorneys for Defendant Pep Boys Manny, Moe & Jack of Delaware, Inc. By: s/ David R. Kott David R. Kott A Member of the Firm Dated: February 27, 2017 Case 3:17-cv-00018-FLW-LHG Document 15 Filed 02/27/17 Page 16 of 16 PageID: 418 Case 3:17-cv-00018-FLW-LHG Document 15-1 Filed 02/27/17 Page 1 of 2 PageID: 419 Case 3:17-cv-00018-FLW-LHG Document 15-1 Filed 02/27/17 Page 2 of 2 PageID: 420
