Thus, because Chapter 58 does not apply to Benefitfocus, Plaintiff’s claim under § 75-1.1 necessarily fails as a matter of law.

North Carolina Mutual’s § 75-1.1 claim appears to be based entirely on the fraud claims discussed above. See Compton v. Kirby, 577 S.E.2d 905, 918 (N.C. Ct. App. 2003) (“Plaintiffs can assert both UDTP violations under N.C. Gen. Stat. § 75-1.1 and fraud based on the same conduct or transaction.”).

Punitive damages sounding in fi'aud as against Defendants, jointly and severally, pursuant to Nmth Carolina General Statute lD-15, in au amonntto be determined by the trier of fact; 4. Damages sounding in nnfair and deceptive trade practices as against Defendants, jointly and severally, pursuant to North Carolina General Statute 75-1.1, et syq., in an amolint in excess of $25,000.00, together with interest accming at the highest allowable legal rate from the date of the filing of this action nntil fully paid plus court costs; 5. That Plaintiff's damages be trebled pursuant to North Carolina General Statute 75-16; 6.

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR - 36 - CLASS CERTIFICATION; MEMO IN SUPPORT 010388-11 848940 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 13-cv-3072-EMC (7) North Carolina Class. The North Carolina Unfair and Deceptive Trade Practices Act (“NCUDTPA”) prohibits “unfair or deceptive acts or practices in or affecting commerce. . . .” N.C. Gen. Stat. § 75-1.1(a). A NCUDTPA claim requires that defendant committed such an act or practice in commerce and that such act or practice proximately caused injury to plaintiff.

North Carolina. Federal courts interpreting North Carolina’s Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-1.1, have held that “[t]he NCUDTPA is intended to protect the North Carolina consumer” and requires “an in-state injury to a plaintiff’s in-state business operations.” I n reG eneticallyM odifiedRiceLitig .

# 14 in case number 1:12– CV–1366], ¶ 10.) Campbell further alleges that such conduct, “constitutes unfair and deceptive trade practices in violation of N.C.G.S. § 75–1.1 et. seq.” (Campbell Compl.

§ 75-1.1 (Count I). N.C. Gen. Stat. § 75-1.1 codifies North Carolina’s Unfair and Deceptive Trade Practices Act (“UDTPA”). To establish a violation of the UDTPA, “a plaintiff must show: (1) defendant committed an unfair or deceptive act or practice, (2) the action in question was in or affecting 42 Plaintiffs’ voluntary payment of tuition also defeats the element that the benefit must not be provided “officiously.”

§ 75-1.1 (Count 1). N.C. Gen. Stat. § 75-1.1 codifies North Carolina’s Unfair and Deceptive Trade Practices Act (“UDTPA”). To establish a violation of the UDTPA, “a plaintiff must show: (1) defendant committed an unfair or deceptive act or practice, (2) the action in question was in or affecting commerce, and (3) the act proximately caused injury to the plaintiff.”

In fact, as it appears that neither party was aware of the sanctions – albeit they did have constructive notice – the alleged fraud could not have been intentional and in fact, the contract also may be void due to mutual mistake of fact. VII. N.C. Gen. Stat. § 75-1.1 An action under § 75-1.1 is a creation of statute. It exists independently and usually accompanies a common law cause of action.

.”); see also In re Digital Music Antitrust Litig., 592 F. Supp. 2d 435, 450–51 (S.D.N.Y. 2008) (dismissing state consumer protection claims and finding that “[the court’s] conclusion that Plaintiffs have not adequately alleged [a federal antitrust] violation necessarily precludes 13 See Alaska Stat. § 45.50.545 (2016); Ark. Code Ann. § 4-88-101 (2016); Cal. Bus & Prof. Code § 17200 (2016); Conn. Gen. Stat § 42-110b (West 2016); Fla. Stat. § 501.204(2) (West 2016); Ga. Code Ann. § 10-1-391(b) (West 2016); Iowa Code § 714.16(1)(n) (West 2016); Ky. Rev. Stat. Ann. § 367.175 (West 2016); Mass. Gen. Laws ch. 93A § 2 (West 2016); Me. Rev. Stat. Ann. tit. 5 § 207(1) (2016); Miss. Code. Ann. § 75-24-3(c) (West 2016); Mo. Rev. Stat § 407.010 (2016); 15 Mo. Code Regs. Ann. tit. 15 § 60-8.020 (2016); N.M. Stat. Ann. § 57-12-4 (West 2016); N.C. Gen. Stat. Ann. § 75-1.1 (2016); Okla. Stat. Ann. tit. 15 § 752.14 (West 2016); R.I. Gen. Laws Ann. § 6-13.1-3 (West 2016); S.C. Code Ann. § 39-5-20(b) (2016); Vt. Stat. Ann. tit. 9 § 2453(b) (West 2016). Case 2:16-cv-05073-MSG Document 141-1 Filed 12/12/16 Page 24 of 31 - 16 - their attempt to recast that violation as an unfair business practice”), vacated and remanded on other grounds, sub nom. Starr v. Sony BMG Music Entm't, 592 F.3d 314 (2d Cir. 2010). Finally, the consumer protection claims under the laws of Alabama, Louisiana, Massachusetts, Minnesota, Nebraska, New York, Pennsylvania, Tennessee, and Washington should be dismissed for the additional reason that all require fraudulent or deceptive conduct in connection with a consumer transaction.14 Plaintiffs do not allege that RBH (or any other defendant for that matter) engaged in any such conduct.