In re Nexus 6P Prods. Liab. Litig. (293 F. Supp. 3d 888, 2018)

United States District Court for the Northern District of California 2018-03-05

Commerce and Trade

Citations

Full opinion text

BETH LABSON FREEMAN, United States District Judge

In this putative consumer class action, Plaintiffs Roy Berry, Jonathan Makcharoenwoodhi, Alex Gorbatchev, Brian Christensen, Anthony Martorello, Khanh Tran, Edward Beheler, Yuriy Davydov, Rebecca Harrison, Zachary Himes, Taylor Jones, Paul Servodio, Justin Leone, James Poore, Jr., and Kenneth Johnston (collectively, "Plaintiffs") allege severe defects in their Nexus 6P smartphones. Plaintiffs sued the companies that developed the phone-Huawei Device USA, Inc. ("Huawei") and Google LLC ("Google")-for breach of warranty, fraud, and unjust enrichment. Their twenty-three causes of action span a litany of state laws and one federal statute.

Presently before the Court are Huawei's Motion to Dismiss the Consolidated Amended Complaint and to Strike Class Allegations ("Huawei's Motion to Dismiss"), Huawei Mot., ECF 38; and Google's Motion to Dismiss Consolidated Amended Complaint ("Google's Motion to Dismiss"), Google Mot., ECF 39. In a previous order, the Court granted with leave to amend Huawei's Motion to Dismiss on the ground that the Court lacks personal jurisdiction over Huawei. ECF 113. Here, the Court dives into the merits of Huawei's and Google's Motions to Dismiss, which assert that Plaintiffs have failed to state a claim on which relief can be granted and that Plaintiffs' class allegations should be stricken.

The Court held a hearing on these motions on January 18, 2018. The Court has considered the arguments presented at oral argument and in the briefing, as well as the submitted evidence and applicable law. For the reasons that follow, the Court hereby GRANTS WITH LEAVE TO AMEND IN PART, GRANTS WITHOUT LEAVE TO AMEND IN PART, AND DENIES IN PART Huawei's and Google's Motions to Dismiss. The Court DENIES Huawei's and Google's motions to strike Plaintiffs' class allegations.

I. BACKGROUND

The following facts are drawn from the Consolidated Amended Complaint ("CAC"), ECF 28. In September 2015, Google unveiled the Nexus 6P, the newest version of its Nexus 6 smartphone. CAC ¶ 165. Google and Huawei created the Nexus 6P together, with Google handling software development and Huawei handling device manufacture. Id. At the launch event and in advertising, Google touted many of the superior features of the phone. See id. ¶¶ 7, 169, 171.

Unfortunately, according to the CAC, the Nexus 6P suffers from two defects. First, some phones unexpectedly turn off and, upon turning back on, experience an endless bootloop cycle (the "Bootloop Defect"). Id. ¶ 174. When the Bootloop Defect manifests, the phone becomes nonoperational and all unsaved data is lost because the phone cannot proceed beyond the start-up screen. Id. ¶ 175. Second, some phones prematurely shut off despite showing a battery charge of anywhere from 15-90% (the "Battery Drain Defect"). Id. ¶ 177. When the Battery Drain Defect manifests, the phone remains dead until the user reconnects it to power. Id. ¶ 178. After some charging, the battery shows the same or similar charge as indicated before the premature shut-off. Id. ; see also id. ¶ 61. Complaints about the Bootloop and Battery Drain Defects began cropping up online as early as September and October 2016. Id. ¶¶ 175, 184, 187-88.

This putative class action was commenced on April 19, 2017. ECF 1. Plaintiffs filed the operative complaint-the CAC-on May 23, 2017. Plaintiffs seek to represent a nationwide class of customers who purchased or own a Nexus 6P. CAC ¶¶ 1, 205. They also propose twelve statewide subclasses, which cover all persons or entities in the states of California, Florida, Illinois, Indiana, Michigan, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Texas, and Washington who purchased or own at least one Nexus 6P. Id. ¶ 205.

Plaintiffs bring twenty-three causes of action against both Huawei and Google under a spattering of state laws and one federal law. At the high level, their claims fall into three buckets: (1) warranty claims, (2) fraud claims, and (3) unjust enrichment claims. Their warranty claims consist of claims for (1) breach of express warranty on behalf of the nationwide class or each statewide subclass, (2) breach of the implied warranty of merchantability on behalf of the nationwide class or each statewide subclass, (3) violation of the California Song-Beverly Consumer Warranty Act on behalf of the California subclass, and (4) violation of the federal Magnuson-Moss Warranty Act presumably on behalf of the nationwide class. Id. ¶¶ 213-67, 284-96. Their fraud claims consist of (1) a common-law claim for deceit and fraudulent concealment on behalf of each statewide subclass and (2) claims for violations of state consumer protection statutes on behalf of the relevant statewide subclass. Id. ¶¶ 268-77, 297-535. Finally, their unjust enrichment claims are asserted on behalf of the nationwide class based on the universal principles of equity. Id. ¶¶ 278-83.

In June 2017, Huawei and Google filed their Motions to Dismiss. Huawei's argument regarding lack of personal jurisdiction was addressed in a prior order. See ECF 113. Here, the Court focuses on the sufficiency of the CAC. Specifically, both Huawei's and Google's Motions to Dismiss assert that Plaintiffs have failed to allege sufficient facts entitling them to relief on their claims. Huawei Mot. 9-28; Google Mot. 3-29. Huawei and Google also request that the Court strike Plaintiffs' class allegations. Huawei Mot. 26-28; Google Mot. 29.

II. LEGAL STANDARD

A. Rule 12(b)(6)

"A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted 'tests the legal sufficiency of a claim.' " Conservation Force v. Salazar , 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001) ). When determining whether a claim has been stated, the Court accepts as true all well-pled factual allegations and construes them in the light most favorable to the plaintiff. Reese v. BP Exploration (Alaska) Inc. , 643 F.3d 681, 690 (9th Cir. 2011).

However, the Court need not "accept as true allegations that contradict matters properly subject to judicial notice" or "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig. , 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v. Golden State Warriors , 266 F.3d 979, 988 (9th Cir. 2001) ). While a complaint need not contain detailed factual allegations, it "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible when the alleged facts "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

B. Rule 12(f)

Federal Rule of Civil Procedure 12(f) permits a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." The function of a motion made under this rule is "to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Whittlestone, Inc. v. Handi-Craft Co. , 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty , 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds by Fogerty v. Fantasy, Inc. , 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994) ). "While a Rule 12(f) motion provides the means to excise improper materials from pleadings, such motions are generally disfavored because the motions may be used as delaying tactics and because of the strong policy favoring resolution on the merits." Barnes v. AT & T Pension Ben. Plan-Nonbargained Program , 718 F.Supp.2d 1167, 1170 (N.D. Cal. 2010).

The decision to strike a portion of a party's pleading is within the sound discretion of the court. Nurse v. United States , 226 F.3d 996, 1000 (9th Cir. 2000). If allegations are stricken, leave to amend should be freely given when doing so would not cause prejudice to the opposing party. See Wyshak v. City Nat'l Bank , 607 F.2d 824, 826 (9th Cir. 1979) (per curiam).

III. DISCUSSION

Both Huawei and Google contend that Plaintiffs have failed to allege sufficient facts entitling them to relief on their claims. Before turning to the merits of those arguments, the Court addresses Google's request for judicial notice.

A. Request for Judicial Notice

In connection with its Motion to Dismiss, Google seeks judicial notice of two documents: Google's U.S. Terms of Sale and the Nexus 6P webpage. ECF 57. Portions of the documents are referenced in the CAC, and both are capable of accurate and ready determination because they are publicly available online. These documents are properly subject to judicial notice. See Fed. R. Evid. 201(b) ; Knievel v. ESPN , 393 F.3d 1068, 1076 (9th Cir. 2005). Plaintiffs did not formally object to Google's request. Accordingly, Google's request for judicial notice is GRANTED.

B. Motions to Dismiss for Failure to State a Claim

Huawei and Google contend that Plaintiffs' CAC provides insufficient allegations to properly plead their causes of action. The Court begins by making some general observations about changes that should be made to any amended pleading. The Court then addresses the sufficiency of an allegation important to many of Plaintiffs' claims-namely, whether Huawei and Google had knowledge of the defects at the time of sale. Finally, the Court proceeds to analyze separately the claims asserted against Huawei and the claims asserted against Google.

1. General Observations

The Court starts with a couple general observations about the pleadings. First, in their twenty-three causes of actions, Plaintiffs often lump Huawei and Google together, alleging conduct by "Defendants" without distinguishing what Huawei did from what Google did. See, e.g. , CAC ¶¶ 230 ("Defendants received timely notice of the breaches experienced by Plaintiffs and Class members. Defendants were provided notice of the Defects by complaints lodged by consumers before or within a reasonable amount of time after the allegations of the Defects became public."), 241 ("Defendants breached the implied warranty of merchantability because the Phones they sold are not of a merchantable quality, but instead contain a Bootloop Defect and a Battery Drain Defect."), 270 ("Defendants concealed and suppressed material facts concerning the performance and quality of the Phones, and the quality of the Huawei, Google, and Nexus brands. Specifically, Defendants knew (or in the exercise of reasonable diligence should have known) of the Defects, but failed to disclose them prior to or at the time they marketed Phones and sold them to consumers."). As discussed in more detail below with respect to particular causes of action, this setup obfuscates what roles Huawei and Google independently played in the alleged harm and whether either is liable for its own conduct. See Adobe Sys. Inc. v. Blue Source Grp., Inc. , 125 F.Supp.3d 945, 964 (N.D. Cal. 2015). In an amended pleading, Plaintiffs "must identify what action each Defendant took that caused Plaintiffs' harm, without resort to generalized allegations against Defendants as a whole." In re iPhone Application Litig. , No. 11-MD-02250-LHK, 2011 WL 4403963, at *8 (N.D. Cal. Sept. 20, 2011).

Second, Plaintiffs assert claims for breach of express warranty, breach of implied warranty, and unjust enrichment on behalf of a nationwide class but do not specify what law governs. As discussed in more detail below with respect to these individual causes of action, the failure to identify the relevant law makes it difficult, if not impossible, for the Court to provide a thorough analysis of Plaintiffs' claims. Throughout this order, the Court often uses the law that the parties apply in their briefing without elaborating on other potentially applicable state laws. In any amended version of the pleadings, Plaintiffs should clarify what law governs each cause of action. Additionally, causes of action should not group together multiple sources of law; rather, Plaintiffs should plead separate causes of actions for each source of law, whether federal or state.

2. Huawei's and Google's Knowledge of Defects at the Time of Sale

Whether Huawei and Google had knowledge of the defects at the time that Plaintiffs purchased their phones is a common thread through many of the Plaintiffs' claims. Indeed, many of Plaintiffs' causes of action either start from the premise or entirely depend on the fact that Huawei and Google knew, or reasonably should have had known, of the defects at the time of sale. Therefore, the Court begins by examining the sufficiency of the Plaintiffs' allegations on that score, as the answer colors the analysis of many of the Plaintiffs' claims.

At multiple points in the CAC, Plaintiffs allege that "Defendants knew (or exercising due diligence should have known) that the Phones were defective at the time of sale." CAC ¶ 246; see also, e.g. , id. ¶¶ 6, 186, 226, 270, 281, 318, 322, 335, 359. However, that statement is conclusory, and the CAC does not contain sufficient factual matter to make that inference plausible.

The key issue here is timing. The Nexus 6P was released in September 2015. Id. ¶ 165. In the CAC, Plaintiffs provide multiple examples of consumers posting online about the Bootloop and Battery Drain Defects, but do not provide specific dates for any of those postings. Id. ¶ 184. Plaintiffs do not allege that Huawei ever saw or responded to these online complaints, let alone that Huawei knew about them before Plaintiffs purchased their phones. See Wilson v. Hewlett-Packard Co. , 668 F.3d 1136, 1147 (9th Cir. 2012) ("[C]ourts have rejected undated customer complaints offered as a factual basis for a manufacturer's knowledge of a defect because they provide no indication whether the manufacturer was aware of the defect at the time of sale .").

Although Plaintiffs allege particular dates for Google's online responses to the postings, those responses postdate Plaintiffs' purchases. Specifically, Plaintiffs allege that a Google representative responded to customer complaints about the Bootloop Defect in September 2016, stating: "We understand that a very small number of users are experiencing a bootloop issue on your device. We are continuing to investigate the situation, but can confirm that this is strictly a hardware related issue." CAC ¶ 187. Nevertheless, all Plaintiffs who allege that their phones manifested the Bootloop Defect purchased their phones before September 2016. See id. ¶¶ 19 (Gorbatchev: Oct. 2015), 28 (Christensen: Nov. 2015), 38 (Martorello: May 2016), 52 (Tran: Jan. 2016), 70 (Berry: Nov. 2015), 119 (Servodio: Mar. 2016).

Similarly, Plaintiffs allege that a Google representative responded to customer complaints about the Battery Drain Defect in October 2016, stating: "Just want to let you all know that [the Battery Drain Defect] is something we have been keeping track of, and our team is investigating....[M]any of you are reporting that you have been experiencing abnormal battery drain for multiple days now." Id. ¶ 188. Again, no Plaintiffs who allege that their phones manifested the Battery Drain Defect purchased their phones after the October 2016 statement by Google's representative. See id. ¶¶ 12 (Makcharoenwoodhi: Apr. 2016), 28 (Christensen: Nov. 2015), 38 (Martorello: May 2016), 58 (Beheler: July 2016), 70 (Berry: Nov. 2015), 79 (Davydov: Dec. 2015), 91 (Harrison: Apr. 2016), 99 (Himes: Mar. 2016), 111 (Jones: Jan. 2016), 130 (Leone: Oct. 2015), 142 (Poore: Feb. 2016), 153 (Johnston: Oct. 2016).

Without that crucial temporal element, Plaintiffs have not adequately alleged that Huawei or Google knew (or reasonably should have known) of the defects when Plaintiffs purchased their phones. This factual gap is not filled by allegations that some Plaintiffs contacted Huawei and Google about the defects, as most of those conversations took place after October 2016 or are not alleged to have taken place on a specific date. See id. ¶¶ 15, 23, 30-31, 33, 54, 63-64, 67, 72-73, 83-85, 94, 113, 133, 147, 155. The two Plaintiffs who contacted Huawei and Google before September 2016 are not enough, see id. ¶¶ 41-43, 102, because a handful of complaints do not, by themselves, plausibly show that Huawei or Google had knowledge of the defects and concealed the defects from customers. See Berenblat v. Apple, Inc. , No. 08-CV-04969-JF, 2010 WL 1460297, at *9 (N.D. Cal. Apr. 9, 2010) (reaching the same conclusion and explaining that allegations about "complaints posted on Apple's consumer website merely establish the fact that some consumers were complaining"); see also Baba v. Hewlett-Packard Co. , No. 09-CV-05946-RS, 2011 WL 317650, at *3 (N.D. Cal. Jan. 28, 2011) ("Awareness of a few customer complaints, however, does not establish knowledge of an alleged defect.").

Perhaps sensing this deficiency, Plaintiffs shift gears in their opposition, positing that "[t]he Nexus 6P phones contain core component flaws that basic product testing would have disclosed at or near the time of manufacture." Opp'n 42. Whatever the viability of that theory, it finds no basis in the CAC. Contrary to Plaintiffs' suggestion, the allegation that "Defendants had superior knowledge and access to the relevant facts," CAC ¶ 272, does not equate to an allegation that straightforward testing would have revealed the defects.

Plaintiffs have not adequately alleged that Huawei or Google had knowledge of the defects at the time that Plaintiffs purchased their phones. Plaintiffs may amend the CAC to allege further facts in support of knowledge. With that conclusion in mind, the Court turns first to the claims asserted against Huawei and then to the claims asserted against Google.

3. Claims Asserted Against Huawei

In broad strokes, the CAC asserts three categories of claims against Huawei-warranty claims, fraud claims, and unjust enrichment claims. The Court addresses each of these categories one at a time.

a. Warranty Claims

Plaintiffs assert four sets of warranty claims: (1) breach of express warranty, (2) breach of the implied warranty of merchantability, (3) violation of the California Song-Beverly Consumer Warranty Act, and (4) violation of the federal Magnuson-Moss Warranty Act. Huawei moves to dismiss all four causes of action. The Court addresses each in turn.

i. Breach of Express Warranty

Plaintiffs bring their first cause of action for breach of express warranty on behalf of a putative nationwide class but do not specify which law governs the claim. CAC ¶ 214. Alternatively, they assert claims for breach of express warranty on behalf of the putative statewide subclasses under the laws of the respective states. Id. ¶ 215.

Huawei provides a written Limited Warranty for phones, tablets, wearables, PCs, and accessories. Huawei Mot., Ex. A. The Limited Warranty provides: "Huawei Device USA Inc., ('Huawei') represents and warrants to the original purchaser ('Purchaser') that Huawei's phones and accessories ('Product') are free from material defects, including improper or inferior workmanship, materials, and design, during the designated warranty period...when used normally and in accordance with all operating instructions." Id. , Preamble. For phones, the "designated warranty period" is "12 months from the date of purchase." Id. ¶ 1.

Under the terms of the Limited Warranty, Huawei agrees to "repair or replace at Huawei's sole option, any parts of the Product that are defective or malfunctioning during normal usage." Id. ¶ 4. However, "Huawei does not warrant that the operation of [the phone] will be uninterrupted or error-free." Id. ¶ 8. Moreover, the Limited Warranty becomes "null and void" if the Purchaser does not notify Huawei "of the alleged defect or malfunction of the Product during the applicable warranty period." Id. ¶ 9.

Huawei moves to dismiss Plaintiffs' express warranty claims. Huawei first contends that, for a handful of Plaintiffs, there are insufficient allegations to establish that Huawei breached the Limited Warranty. Huawei Mot. 10-11. Huawei then asserts a number of inadequacies applicable to different groupings of Plaintiffs. Specifically, Huawei contends that certain Plaintiffs have not adequately alleged that they provided Huawei notice and an opportunity to cure, that they relied on Huawei's Limited Warranty, or that they were in privity with Huawei. Id. at 11-12. The Court trudges through each of these various grounds for dismissal.

(1) Breach and Unconscionability

Huawei contends that it did not breach the Limited Warranty for those Plaintiffs whose phones manifested the defects outside the one-year warranty period and those Plaintiffs who did not notify Huawei of defects during the one-year warranty period. Huawei Mot. 10. Specifically, Plaintiffs Gorbatchev, Christensen, and Tran allege that their phones failed more than a year after purchase. CAC ¶¶ 19, 21 (Gorbatchev), 28-29 (Christensen), 52-53 (Tran). Plaintiffs Berry, Jones, and Leone do not allege that they notified Huawei of any defect before the expiration of one year. Id. ¶¶ 70-78 (Berry), 111-18 (Jones), 128-41 (Leone). Plaintiffs do not dispute that these Plaintiffs fall outside the Limited Warranty but instead argue that the one-year warranty limitation is unconscionable.

Because Plaintiffs and Huawei address the unconscionability issue under California law and identify no material differences in other state laws, the Court uses California law as the basis for its analysis. Under California law, a contract provision is "unconscionable, and therefore unenforceable, only if it is both procedurally and substantively unconscionable." In re iPhone , 2011 WL 4403963, at *7 (citing Armendariz v. Found. Health Psychcare Servs., Inc. , 24 Cal.4th 83, 99 Cal.Rptr.2d 745, 6 P.3d 669, 690 (2000) ); see also Pokorny v. Quixtar, Inc. , 601 F.3d 987, 996 (9th Cir. 2010) (explaining that, under California law, "both procedural and substantive unconscionability must be present for the contract to be declared unenforceable"). "The procedural element of unconscionability focuses on two factors: oppression and surprise." Aron v. U-Haul Co. of Cal. , 143 Cal.App.4th 796, 49 Cal.Rptr.3d 555, 564 (2006). "The substantive element of unconscionability focuses on the actual terms of the agreement and evaluates whether they create 'overly harsh' or 'one-sided' results as to 'shock the conscience.' " Id. (citation omitted).

At most, Plaintiffs have made a weak showing that the Limited Warranty's one-year duration provision is procedurally unconscionable. Plaintiffs contend that the Limited Warranty is unconscionable because Huawei and its customers are in an unequal bargaining position, where customers cannot negotiate warranty terms. CAC ¶¶ 226, 246. The bargaining positions of Huawei and its customers are not as imbalanced as Plaintiffs suggest because Plaintiffs have not adequately alleged that Huawei knew of and concealed the defects at the time of sale. See In re Sony Grand Wega KDF-E A10/A20 Series Rear Projection HDTV Television Litig. , 758 F.Supp.2d 1077, 1101 (S.D. Cal. 2010) (rejecting argument that defendant had superior bargaining power where plaintiffs had not sufficiently alleged that the defendant knew of the defect before the point of sale). Even if the terms of the Limited Warranty are non-negotiable, Plaintiffs do not plead that they had no meaningful alternatives; they could have purchased other phones or obtained additional warranty protections from Huawei. Davidson v. Apple, Inc. , No. 16-CV-04942-LHK, 2017 WL 976048, at *12 (N.D. Cal. Mar. 14, 2017). Moreover, the CAC does not allege that Plaintiffs were "surprised" by the Limited Warranty's terms or that they could not or did not access Huawei's Limited Warranty online at the time of purchase. See id.

Plaintiffs make no allegations relevant to substantive unconscionability. Courts have rejected substantive unconscionability arguments where, as here, the duration of the express warranty "corresponds to the maximum limit permitted under [state] law" for implied warranties. Marchante v. Sony Corp. of Am. , 801 F.Supp.2d 1013, 1023 (S.D. Cal. 2011) ; see also Bros. v. Hewlett-Packard Co. , No. 06-CV-02254-RMW, 2006 WL 3093685, at *8 (N.D. Cal. Oct. 31, 2006) (explaining that, in general, "a time limitation, by itself, is not unconscionable"). Plaintiffs' allegations do not show that the one-year duration "create[s] overly harsh or one-sided results as to shock the conscience," and thus Plaintiffs have not established substantive unconscionability. Aron , 49 Cal.Rptr.3d at 564 (internal quotation marks and citation omitted).

Based on the allegations in the CAC, Huawei's one-year Limited Warranty is not unconscionable, and the Limited Warranty is enforceable. Accordingly, Plaintiffs have not stated a claim for breach of express warranty for Plaintiffs Gorbatchev, Christensen, and Tran whose phone defect manifested after the one-year Limited Warranty expired or for Plaintiffs Berry, Jones, and Leone who did not notify Huawei of a defect within the one-year Limited Warranty period. The Court GRANTS Huawei's Motion to Dismiss the express warranty claim of Plaintiffs Gorbatchev, Christensen, Tran, Berry, Jones, and Leone with leave to amend to allege further facts in support of Plaintiffs' unconscionability argument.

(2) Notice and Opportunity to Cure

For many of those same Plaintiffs, Huawei relatedly argues that the failure to give Huawei notice or an opportunity to cure is fatal to their claims. Huawei Mot. 11-12. In particular, Plaintiffs Gorbatchev, Tran, Berry, and Leone do not allege that they contacted Huawei to seek repairs. Id. at 12. Additionally, Plaintiff Beheler does not allege that he allowed Huawei to act on its offer to repair or replace his phone. Id. Due to the variations in state law on this issue, the Court proceeds through each Plaintiff's state-law claim individually.

(a) California

Beyond California Plaintiff Gorbatchev's falling outside the terms of Huawei's Limited Warranty, California law does not supply an independent notice-related bar to his express warranty claim. As a general matter, a "buyer must, within a reasonable time after he or she discovers or should have discovered any breach, notify the seller of breach or be barred from any remedy." Cal. Com. Code § 2607(3)(A). And it is true that Plaintiff Gorbatchev does not allege that he contacted Huawei to seek repairs. CAC ¶¶ 19-27. But notice is not required in an action by consumers "against manufacturers with whom they have not dealt." Greenman v. Yuba Power Prods., Inc. , 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 900 (1963). Other district courts have applied this exception to the specific notice provision at issue here, § 2607(3)(A). See, e.g. , In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab. Litig. , 754 F.Supp.2d 1145, 1180 (C.D. Cal. 2010) (denying motion to dismiss for failure to provide § 2607(3)(A) notice); Aaronson v. Vital Pharm., Inc. , No. 09-CV-01333-W, 2010 WL 625337, at *5 (S.D. Cal. Feb. 17, 2010) (same).

Here, Plaintiff Gorbatchev asserts his express warranty claim against Huawei. The allegations in the CAC support that Huawei is a manufacturer with whom Plaintiff Gorbatchev has never dealt. Plaintiff Gorbatchev did not purchase his Nexus 6P phone from Huawei; instead, he purchased his phone through the Google Store. CAC ¶ 19. After his phone began exhibiting the Bootloop Defect, he interacted solely with Google in an unsuccessful attempt to secure a new phone under the warranty. Id. ¶¶ 23-24. Because Plaintiff Gorbatchev is not required to provide notice to manufacturer Huawei, his claim cannot be dismissed on this ground.

(b) Illinois

Under Illinois law, notice is an "essential element" of a breach of warranty claim.

Maldonado v. Creative Woodworking Concepts, Inc. , 296 Ill.App.3d 935, 230 Ill.Dec. 743, 694 N.E.2d 1021, 1025 (1998). Thus, "failure to allege sufficient notice may be a fatal defect in a complaint alleging breach of warranty." Id. A manufacturer's general awareness of problems is insufficient; to fulfill the notice obligation, the buyer normally must contact the manufacturer directly and inform the manufacturer of the defect in the particular product he purchased. Connick v. Suzuki Motor Co. , 174 Ill.2d 482, 221 Ill.Dec. 389, 675 N.E.2d 584, 589 (1996). The Illinois Supreme Court has enumerated two exceptions: direct notice is unnecessary (1) when the seller has actual knowledge of the defect of the particular product and (2) when a buyer files a complaint claiming personal injuries. Id. , 221 Ill.Dec. 389, 675 N.E.2d at 590.

The allegations of Illinois Plaintiff Tran do not withstand scrutiny under these standards. As noted above, Plaintiff Tran is not alleged to have informed Huawei of the Bootloop Defect in his phone. Indeed, there is no allegation that he contacted Huawei at all. CAC ¶¶ 52-57. Nor can Plaintiff Tran rely on the first notice exception because the CAC does not aver that other circumstances put Huawei on notice that there was an issue with Plaintiff Tran's phone. Under the cases, Huawei's alleged general awareness of the defects in Nexus 6P phones is insufficient. See Connick , 221 Ill.Dec. 389, 675 N.E.2d at 590 ("[G]eneralized knowledge about the safety concerns of third parties is insufficient to fulfill plaintiffs' UCL notice requirement."). The second exception also is inapplicable in this consumer defect suit where none of the Plaintiffs, let alone Plaintiff Tran, assert that he or she suffered any personal injury. Accordingly, the Court GRANTS Huawei's Motion to Dismiss Plaintiff Tran's express warranty claim with leave to amend to allege further facts about Huawei's awareness of the defects in Plaintiff Tran's phone, either through direct notice from Plaintiff Tran or other circumstances.

(c) Indiana

Indiana law, too, requires that the buyer give notice to the seller before bringing suit for breach of warranty. Ind. Code Ann. § 26-1-2-607(3)(a). But unlike similar provisions in other states, Indiana's notification law "is satisfied if the seller has 'actual knowledge' that the goods are nonconforming." Anderson v. Gulf Stream Coach, Inc. , 662 F.3d 775, 782 (7th Cir. 2011) ; see also Agrarian Grain Co. v. Meeker , 526 N.E.2d 1189, 1193 (Ind. Ct. App. 1988) ("[T]he notice required by [the Indiana statute] is satisfied by the [seller's] actual knowledge there are some problems with the goods."). Here, the allegations demonstrate that Huawei knew that Indiana Plaintiff Beheler's Nexus 6P phone manifested the Battery Drain Defect and that he was dissatisfied with the phone. See CAC ¶ 64 (alleging that Plaintiff Beheler "called Huawei's customer support" and "[a] Huawei representative agreed that the Phone was defective"). That Huawei offered to repair or replace the phone and Plaintiff Beheler apparently never responded, id. , does not change the analysis, as the Limited Warranty does not explicitly require Plaintiff Beheler to give Huawei a reasonable opportunity to cure. See Anderson , 662 F.3d at 782 ("[T]he only Indiana court to have squarely addressed this issue has concluded that the buyer only has to give the seller a reasonable opportunity to cure if the terms of the warranty impose that requirement."). Accordingly, Plaintiff Beheler's express warranty claim cannot be dismissed for failure to allege notice and an opportunity to cure.

(d) Michigan

Under Michigan law, it appears that "[t]he buyer must provide reasonable notice in order to recover for a breach of warranty." Eaton Corp. v. Magnavox Co. , 581 F.Supp. 1514, 1531 (E.D. Mich. 1984). Plaintiffs do not cite any contrary authority. The CAC does not allege that Michigan Plaintiff Berry provided any notice to Huawei. CAC ¶¶ 70-78. Accordingly, the Court GRANTS Huawei's Motion to Dismiss Plaintiff Berry's express warranty claim with leave to amend to allege further facts about Plaintiff Berry's notice to Huawei.

(e) Pennsylvania

The Court rejects Huawei's notice argument as to Pennsylvania Plaintiff Leone. The Pennsylvania statute says that "the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach." 13 Pa. Stat. and Cons. Stat. Ann. § 2607(c)(1). However, while many states require pre-suit notice, Pennsylvania appears not to have the same limitation. Pennsylvania state courts have held that the filing of a complaint may satisfy the notice requirement for a breach of warranty claim. See Precision Towers, Inc. v. Nat-Com, Inc. , No. 2143, 2002 WL 31247992, at *5 (Pa. Com. Pl. Sept. 23, 2002) ("The filing of a complaint has been held to satisfy the notice requirement for a breach of warranty claim."); cf. Yates v. Clifford Motors, Inc. , 283 Pa.Super. 293, 423 A.2d 1262, 1270 (1980) (holding that the filing of the complaint constituted adequate notice that the plaintiff consumer was rejecting the truck at issue). While the timeliness of the notice is a factual issue better resolved at a later stage of the litigation, the filing of this action is sufficient to preclude dismissal of Plaintiff Leone's express warranty claim for failure to provide notice. See In re MyFord Touch Consumer Litig. , 46 F.Supp.3d 936, 978 (N.D. Cal. 2014).

In sum, the Court GRANTS WITH LEAVE TO AMEND Huawei's Motion to Dismiss the express warranty claim of Plaintiffs Tran and Berry-but not Plaintiffs Gorbatchev, Beheler, or Leone-for failure to adequately plead notice and an opportunity to cure.

(3) Basis of the Bargain and Reliance

Huawei next contends that the Court should dismiss the express warranty claims of certain Plaintiffs who do not plead that they saw or relied on Huawei's warranty. Huawei Mot. 11. Huawei's argument covers Plaintiffs from California (Makcharoenwoodhi, Gorbatchev, and Christensen), Florida (Martorello), Illinois (Tran), New York (Davydov), North Carolina (Harrison and Himes), Ohio (Servodio), Pennsylvania (Leone), Texas (Poore), and Washington (Johnston). Id.

In all of the relevant states, an express warranty is created only when an "affirmation of fact or promise" or a "description of the goods" is part of the "basis of the bargain." Cal. Com. Code § 2313(1)(a)-(b) ; Fla. Stat. Ann. § 672.313(1)(a)-(b) ; 810 Ill. Comp. Stat. Ann. 5/2-313(1)(a)-(b) ; N.Y. U.C.C. Law § 2-313(1)(a)-(b) ; N.C. Gen. Stat. Ann. § 25-2-313(1)(a)-(b) ; Ohio Rev. Code Ann. § 1302.26(A)(1)-(2) ; 13 Pa. Stat. and Cons. Stat. Ann. § 2-313(a)(1) - (2) ; Tex. Bus. & Com. Code Ann. § 2.313(a)(1)-(2) ; Wash. Rev. Code Ann. § 62A.2-313(1)(a)-(b). The relevant question is whether Plaintiffs must show reliance on the statement or representation for it to be considered part of the "basis of the bargain." Because states are split on the question whether reliance is necessary, the Court analyzes the relevant state laws in turn.

(a) California

In adopting the Uniform Commercial Code ("UCC"), California has shifted its view of whether a plaintiff must allege reliance on specific promises to sustain express warranty claims. Comment 3 to the analogous UCC provision, UCC § 2-313, provides:

The present section deals with affirmations of fact by the seller, descriptions of the goods or exhibitions of samples, exactly as any other part of a negotiation which ends in a contract is dealt with. No specific intention to make a warranty is necessary if any of these factors is made part of the basis of the bargain. In actual practice affirmations of fact made by the seller about the goods during a bargain are regarded as part of the description of those goods; hence no particular reliance on such statements need be shown in order to weave them into the fabric of the agreement. Rather, any fact which is to take such affirmations, once made, out of the agreement requires clear affirmative proof. The issue normally is one of fact.

UCC § 2-313, cmt. 3 (emphasis added). While pre-UCC California law required proof of reliance on specific promises, comment 3 to UCC § 2-313 expressly signals a departure from that requirement. See Keith v. Buchanan , 173 Cal.App.3d 13, 220 Cal.Rptr. 392, 397-98 (1985) (explaining that, under the UCC, "the concept of reliance has been purposefully abandoned"). Because California's express warranty statute conforms to the UCC, the California Court of Appeal has held that a buyer need not show reliance because the California statute "creates a presumption that the seller's affirmations go to the basis of the bargain." Weinstat v. Dentsply Int'l, Inc. , 180 Cal.App.4th 1213, 103 Cal.Rptr.3d 614, 626 (2010). The court reasoned that the statute focuses not on the buyer's actions, but on "the seller 's behavior and obligation-his or her affirmations, promises, and descriptions of the goods-all of which help define what the seller 'in essence' agreed to sell." Id. at 627. Therefore, "[a]ny affirmation, once made, is part of the agreement unless there is 'clear affirmative proof' that the affirmation has been taken out of the agreement." Id.

The Court acknowledges that some district court cases continue to indicate that reliance is required after the decision in Weinstat . See, e.g. , Nabors v. Google, Inc. , No. 10-CV-03897 EJD, 2011 WL 3861893, at *4 (N.D. Cal. Aug. 30, 2011) (dismissing express warranty claims where plaintiff failed to allege reasonable reliance on any specific representations made by the defendant). However, these cases are not dispositive because they are not decisions of the California Supreme Court (or of any California state court) and they do not discuss Weinstat or comment 3 to UCC § 2-313. Moreover, many of the cases are distinguishable because they did not involve written warranties included as part of the sale, as here. In this situation, "an assertion that the warranty [is] not part of the deal between the issuing party and receiving party is far less persuasive." In re MyFord , 46 F.Supp.3d at 973.

In its reply, Huawei asserts that Weinstat is distinguishable because it involved parties that were in privity with one another. Huawei Reply 8. In support of its argument, Huawei cites a district court case drawing that distinction. See Coleman v. Boston Sci. Corp. , No. 10-CV-01968-OWW, 2011 WL 3813173, at *4 (E.D. Cal. Aug. 29, 2011) ("Neither Weinstat nor Keith supports Plaintiff's erroneous contention that reliance is not required where privity is absent."). Although some district courts have reached that conclusion, multiple others have interpreted California law not to require a showing of reliance even if privity is lacking. See, e.g. , In re MyFord , 46 F.Supp.3d at 973 ("[O]ther courts interpreting California law have not found such a limitation-i.e. , they have not required reliance where the parties are not in privity."); McVicar v. Goodman Glob., Inc. , 1 F.Supp.3d 1044, 1057 (C.D. Cal. 2014) (relying on Weinstat in a suit by plaintiffs against an air conditioning manufacturer and holding that the express warranty claim was well-pled even though plaintiffs "did not allege that they saw any promises or affirmations of fact prior to purchase"); In re Toyota Motor Corp. , 754 F.Supp.2d at 1183 n.22 (noting that plaintiffs, in a suit against a car manufacturer, "are not required to allege reliance").

At least on the facts of this case, the Court follows those cases that have not required reliance as a prerequisite to asserting an express warranty claim. As Weinstat emphasizes, the statute focuses on the seller and looks to the promises and affirmations that the seller made. 103 Cal.Rptr.3d at 627. The ultimate question is "what the seller 'in essence' agreed to sell." See id. Here, in selling the phones to retailers to sell to the public, Huawei provided a written Limited Warranty that the Nexus 6P phones are "free from material defects" in normal operation. Huawei Mot., Ex. A, Preamble. Although two out of three California Plaintiffs did not purchase directly from Huawei, there is no dispute that Huawei treated the Limited Warranty as extending to Plaintiffs upon their purchase. See CAC ¶ 15 (alleging that "Huawei informed [California Plaintiff] Makcharoenwoodhi that his warranty was voided," not that it did not apply to him); see also, e.g. , id. ¶¶ 44 (alleging that Huawei denied warranty coverage even though Florida Plaintiff Martorello claimed within the warranty period), 242 (alleging that Huawei's Limited Warranty is designed to cover end-users, not retailers). In these circumstances, a privity requirement would have little meaning and would serve only to allow Huawei to evade the promises it made in writing about the Nexus 6P phones. Accordingly, failure to adequately plead reliance is not an appropriate basis on which to dismiss the express warranty claims of Plaintiffs Makcharoenwoodhi, Gorbatchev, and Christensen.

(b) Florida

Under Florida law, "an express warranty is generally considered to arise only where the seller asserts a fact of which the buyer is ignorant prior to the beginning of the transaction and on which the buyer justifiably relies as part of the 'basis of the bargain.' " Thursby v. Reynolds Metals Co. , 466 So.2d 245, 250 (Fla. Dist. Ct. App. 1984) (citations omitted); see also Royal Typewriter Co. v. Xerographic Supplies Corp. , 719 F.2d 1092, 1101 (11th Cir. 1983) (holding that, under Florida law, "absence of reliance will negate the existence of an express warranty"). Plaintiffs do not cite any contrary authority. Because the sole Florida Plaintiff, Martorello, does not allege facts to support the necessary element of reliance, the Court GRANTS Huawei's motion to dismiss this claim with leave to amend to allege relevant facts.

(c) Illinois

Whether a plaintiff must plead reliance under Illinois law is slightly unclear. Some Illinois courts have suggested that reliance is an invariable requirement for an express warranty claim. See, e.g. , Regopoulos v. Waukegan P'ship , 240 Ill.App.3d 668, 181 Ill.Dec. 384, 608 N.E.2d 457, 461 (1992) (stating that one necessary element of an express warranty claim is that "the purchaser actually relied upon the warranty"); Coryell v. Lombard Lincoln-Mercury Merkur, Inc. , 189 Ill.App.3d 163, 136 Ill.Dec. 379, 544 N.E.2d 1154, 1158 (1989) ("[T]he buyer must show reliance on the seller's representations in order for an express warranty to exist."). Other Illinois courts have held that a seller's representations create a rebuttable presumption of reliance by the buyer so that reliance need not be pled. See, e.g. , Felley v. Singleton , 302 Ill.App.3d 248, 235 Ill.Dec. 747, 705 N.E.2d 930, 934 (1999) ("[R]epresentations [by the seller] constitute express warranties, regardless of the buyer's reliance on them, unless the seller shows by clear affirmative proof that the representations did not become part of the basis of the bargain."); Weng v. Allison , 287 Ill.App.3d 535, 223 Ill.Dec. 123, 678 N.E.2d 1254, 1256 (1997) ("In this matter, the seller's statements to the buyers...were affirmations of fact and descriptions of the [product] that created an express warranty."). These courts have acknowledged the tension in the cases. See Felley , 235 Ill.Dec. 747, 705 N.E.2d at 934 (citing the above-quoted statement in Coryell and "recogniz[ing] that Illinois courts have not always consistently stated these principles").

Despite the inconsistency, the legal principles do not seem to be irreconcilable. In particular, the cases can be harmonized based on the presence or absence of privity. When privity is lacking, the background rule mandates pleading and proving reliance. See Regopoulos , 181 Ill.Dec. 384, 608 N.E.2d at 461. In contrast, when the plaintiff is in privity with the defendant, the defendant's representations about the product presumptively establish the reliance element. See Felley , 235 Ill.Dec. 747, 705 N.E.2d at 934 ; Weng , 223 Ill.Dec. 123, 678 N.E.2d at 1256. Indeed, one of the cases that Plaintiffs cite explicitly notes the connection between allegations of privity and allegations of reliance. See In re Rust-Oleum Restore Mktg., Sales Practices & Prods. Liab. Litig. , 155 F.Supp.3d 772, 809 (N.D. Ill. 2016). And Plaintiffs' other case involved the quintessential privity relationship-that between buyer and seller. See Bietsch v. Sergeant's Pet Care Prod., Inc. , No. 15-CV-05432, 2016 WL 1011512, at *5 (N.D. Ill. Mar. 15, 2016). Under Illinois law, then, it appears that a plaintiff must plead reliance if he does not adequately allege privity with the defendant.

As discussed in more detail in the privity section below, Illinois Plaintiff Tran does not sufficiently plead that he is in privity with Huawei or that an exception applies. Without an adequate allegation of privity, Plaintiff Tran's claim must be dismissed for failure to plead reliance. Accordingly, the Court GRANTS Huawei's motion to dismiss Plaintiff Tran's express warranty claim with leave to amend to allege relevant facts.

(d) New York

Under New York law, the buyer may bring an action for breach of express warranty against a manufacturer only if "the buyer relied [on the manufacturer's statements] when contracting with his immediate seller." Avola v. La.-Pac. Corp. , 991 F.Supp.2d 381, 391 (E.D.N.Y. 2013) ; see also Horowitz v. Stryker Corp. , 613 F.Supp.2d 271, 286 (E.D.N.Y. 2009) (holding that, under New York law, "an action for breach of express warranty requires...reliance on th[e] promise or representation" (citing CBS Inc. v. Ziff-Davis Pub. Co. , 75 N.Y.2d 496, 554 N.Y.S.2d 449, 553 N.E.2d 997, 1000-01 (1990) ) ). Plaintiffs do not identify any contrary authority. Because the sole New York Plaintiff, Davydov, does not allege facts to support the necessary element of reliance, the Court GRANTS Huawei's motion to dismiss this claim with leave to amend to allege relevant facts.

(e) North Carolina

The same result obtains under North Carolina law. As Plaintiffs' own authority provides, "[a] plaintiff must have relied upon the warrantor's statement in order to establish an express warranty and its breach." Eclipse Packaging, Inc. v. Stewarts of Am., Inc. , No. 14-CV-00195-RLV, 2016 WL 3619120, at *4 (W.D.N.C. July 6, 2016) (citing Pake v. Byrd , 55 N.C.App. 551, 286 S.E.2d 588, 590 (1982) );

see also Harbor Point Homeowners' Ass'n, Inc. ex rel. Bd. of Dirs. v. DJF Enters., Inc. , 206 N.C.App. 152, 697 S.E.2d 439, 447 (2010) (noting that a claim for breach of express warranty requires that the affirmation "was relied upon by the plaintiff in making his decision to purchase" (citation omitted) ). However, "the element of reliance can often be inferred from allegations of mere purchase or use if the natural tendency of the representations made is such as to induce such purchase or use." Bernick v. Jurden , 306 N.C. 435, 293 S.E.2d 405, 413 (1982) (citing Kinlaw v. Long Mfg. N. C., Inc. , 298 N.C. 494, 259 S.E.2d 552, 557 n.7 (1979) ).

North Carolina Plaintiffs Harrison and Himes do not argue or allege that the natural tendency of Huawei's representation that the Nexus 6P phones are "free from material defects" in normal operation was to induce them to purchase the phone. This representation stands in stark contrast to the representation at issue in Bernick . There, the North Carolina Supreme Court held that the defendants' statement that their hockey mouthguard offered "maximum protection to the lips and teeth" would naturally tend to induce a mother to purchase one for her son. Bernick , 293 S.E.2d at 413-14. The court emphasized the "family purpose of the mother's purchase." Id. at 414. No similar circumstances or facts are alleged in this case. Accordingly, the Court GRANTS Huawei's motion to dismiss the express warranty claims of Plaintiffs Harrison and Himes with leave to amend to allege relevant facts.

(f) Ohio

In the case of express written warranties, Ohio law follows the same approach as California law-namely, that express warranty claims may proceed even in the absence of an allegation of reliance. In Norcold, Inc. v. Gateway Supply Co. , the Ohio Court of Appeals rested on comment 3 of UCC § 2-313 and followed the "decisive majority of courts" that have held that "reliance is not an element in a claim for breach of an express written warranty." 154 Ohio App.3d 594, 798 N.E.2d 618, 623-24 (2003). As the court explained, a written warranty is an integral part of a transaction whose purpose is to assure "one party to a contract of the existence of a fact upon which the other party may rely." Id. at 624 (quoting Metro. Coal Co. v. Howard , 155 F.2d 780, 784 (2d Cir. 1946) ). Thus, in that case, the court held that "because the warranties...were part of a written contract,...enforcement thereof is not dependant [sic] upon any reliance by [the plaintiff]." Id. Although this case does not involve a warranty explicitly written into a contract between the parties, Norcold 's reasoning applies in this situation, where the manufacturer has warranted specific terms in writing.

Huawei's cited authority, McKinney v. Bayer Corp. , 744 F.Supp.2d 733 (N.D. Ohio 2010), is distinguishable. Although the district court in McKinney was also interpreting Ohio law, the court relied heavily on a Sixth Circuit opinion interpreting Kentucky law and acknowledged as much. Id. at 754 (citing Sixth Circuit's decision in Overstreet v. Norden Labs., Inc. , 669 F.2d 1286 (6th Cir. 1982), and noting that the Sixth Circuit was "applying analogous Kentucky law"). Notably, the district court in McKinney did not address Norcold at all, likely because the Ohio Court of Appeals in Norcold limited its holding to "the context of an express written warranty," 798 N.E.2d at 623, whereas the warranties at issue in McKinney were contained in advertising and labeling, 744 F.Supp.2d at 754-55. Because the instant case involves an express written warranty, the Court concludes that Norcold is controlling and Ohio Plaintiff Servodio's need not plead reliance to state a claim for express warranty under Ohio law. Accordingly, this is not an appropriate basis on which to dismiss Plaintiff Servodio's express warranty claim.

(g) Pennsylvania

Under Pennsylvania law, there is a rebuttable presumption of reliance. See Cole v. Gen. Motors Corp. , 484 F.3d 717, 726 (5th Cir. 2007). Specifically, Pennsylvania law follows the approach that "all statements of the seller [become] part of the basis of the bargain unless clear affirmative proof is shown to the contrary." Sessa v. Riegle , 427 F.Supp. 760, 766 (E.D. Pa. 1977), aff'd , 568 F.2d 770 (3d Cir. 1978). Accordingly, reliance is not an appropriate basis on which to dismiss Pennsylvania Plaintiff Leone's express warranty claim.

(h) Texas

Texas courts have interpreted Texas's express warranty law to incorporate a reliance requirement. In Compaq Computer Corp. v. Lapray , the Texas Supreme Court surveyed the states that have and have not adopted the reliance requirement and noted that "[u]nder Texas law, we have said that '[r]eliance is...not only relevant to, but an element of proof of, plaintiffs' claims of breach of express warranty (to a certain extent).' " 135 S.W.3d 657, 676 (Tex. 2004) (second and third alterations in original) (quoting Henry Schein, Inc. v. Stromboe , 102 S.W.3d 675, 686 (Tex. 2002) ); Am. Tobacco Co. v. Grinnell , 951 S.W.2d 420, 436 (Tex. 1997) ("[A]n express warranty claim also requires a form of reliance."). Although Plaintiffs identify a Texas Court of Appeals case stating in a footnote that it is error to include reliance as a necessary element of proof for breach of express warranty, Villalon v. Vollmering , 676 S.W.2d 220, 222 n.1 (Tex. App. 1984), other divisions of the Texas Court of Appeals have reached a different conclusion. In any event, the statement in Villalon cannot override the strong indications by the Texas Supreme Court about reliance. Accordingly, the Court GRANTS Huawei's motion to dismiss the express warranty claim of Texas Plaintiff Poore with leave to amend to allege relevant facts.

(i) Washington

Washington courts sometimes require a form of reliance. For example, in Touchet Valley Grain Growers, Inc. v. Opp & Seibold General Construction, Inc. , the Washington Supreme Court explained that "[r]ecovery for breach of an express warranty is contingent on a plaintiff's knowledge of the representation." 119 Wash.2d 334, 831 P.2d 724, 731 (1992) ; Baughn v. Honda Motor Co. , 107 Wash.2d 127, 727 P.2d 655, 669 (1986) ("Although the UCC does not require a plaintiff to show reliance on the manufacturer's statements, he or she must at least be aware of such representations to recover for their breach."). However, the Court does not read those cases to require a showing of awareness when the plaintiffs base their claims on an express written warranty, rather than other representations (such as advertising statements), to form the basis of the bargain. See In re Myford Touch Consumer Litig. , No. 13-CV-03072-EMC, 2015 WL 5118308, at *6 (N.D. Cal. Aug. 31, 2015) (recognizing that awareness of representations must be shown under Washington law "where the representations are used by the plaintiff to define the scope of the warranty"). Huawei's authority is to the same effect, as Huawei's identified case involved advertising statements and cited a Washington Supreme Court case for the proposition that "before recovering on a claim of breach of an express warranty contained in an advertisement, a plaintiff must demonstrate that he or she justifiably relied on a statement contained in the advertisement."

Reece v. Good Samaritan Hosp. , 90 Wash.App. 574, 953 P.2d 117, 123 (1998) (citing Arrow Transp. Co. v. A. O. Smith Co. , 75 Wash.2d 843, 454 P.2d 387, 390 (1969) ). Accordingly, reliance is not an appropriate basis on which to dismiss Washington Plaintiff Johnston's express warranty claim.

In sum, the Court GRANTS WITH LEAVE TO AMEND Huawei's Motion to Dismiss the express warranty claim of Plaintiffs Martorello, Tran, Davydov, Harrison, Himes, and Poore-but not Plaintiffs Makcharoenwoodhi, Gorbatchev, Christensen, Servodio, Leone, or Johnston-for failure to adequately plead reliance.

(4) Privity

Finally, Huawei contends that the Court should dismiss the express warranty claims of Florida Plaintiff Martorello and Illinois Plaintiff Tran because those Plaintiffs are not in privity of contract with Huawei. Huawei Mot. 12. Huawei properly asserts that the CAC's bare allegation that all Plaintiffs "were in privity of contract with Huawei...by virtue of their interactions with Huawei," CAC ¶ 242, is conclusory and does not plausibly allege privity. Thus, the Court must address whether privity of contract is required to state a claim for breach of express warranty under Florida and Illinois law.

(a) Florida

Florida courts are split on whether claims for breach of express warranty always require privity. See In re Clorox Consumer Litig. , No. 12-CV-00280-SC, 2013 WL 3967334, at *10 (N.D. Cal. July 31, 2013) (summarizing the split). Some courts hold that because express warranty claims are contractual, "the plaintiff must be in privity of contract with the defendant." Hill v. Hoover Co. , 899 F.Supp.2d 1259, 1266 (N.D. Fla. 2012) (quoting T.W.M. v. Am. Med. Sys., Inc. , 886 F.Supp. 842, 844 (N.D. Fla. 1995) ). Other courts have declined to apply the privity requirement when the seller is unlikely to have knowledge about the manufacturer's product. Smith v. Wm. Wrigley Jr. Co. , 663 F.Supp.2d 1336, 1343 (S.D. Fla. 2009) ("[I]t defies common sense to argue that purchasers of Eclipse gum presumed that the cashier at the local convenience store is familiar with the scientific properties of MBE."). Even if the Court finds the latter line of cases persuasive, Florida Plaintiff Martorello purchased his phone from Google. CAC ¶ 38. The CAC provides no basis to conclude that Huawei has detailed knowledge about the Nexus 6P that Google does not; to the contrary, the CAC often lumps Huawei and Google together. Accordingly, the Court GRANTS Huawei's Motion to Dismiss the express warranty claim of Plaintiff Martorello with leave to amend to allege further facts about the privity relationship between Plaintiff Martorello and Huawei or any disparity in knowledge between Huawei and Google regarding the Nexus 6P phone.

(b) Illinois

As noted above, Illinois's law on privity is congruous with its law on reliance. Illinois generally requires the plaintiff to be in privity with the defendant. Baldonado v. Wyeth , No. 04-CV-04312, 2012 WL 729228, at *4 (N.D. Ill. Mar. 6, 2012). Illinois Plaintiff Tran has not sufficiently alleged privity with Huawei. He purchased his Nexus 6P phone through the Google Store, and he interacted solely with Google when trying to remedy the Bootloop Defect. CAC ¶¶ 52-54. The CAC's unsupported allegation that all Plaintiffs "were in privity of contract with Huawei...by virtue of their interactions with Huawei," id. ¶ 242, is conclusory and does not plausibly allege privity.

That conclusion does not end the analysis. Where the parties are not in privity, there may be an express warranty if the plaintiff shows that the statement became part of the basis of the bargain. Ampat/Midwest, Inc. v. Ill. Tool Works, Inc. , No. 85-CV-10029, 1988 WL 53222, at *3 (N.D. Ill. May 12, 1988). More precisely, Illinois courts have recognized an exception to the privity requirement, holding that "manufacturer documents given directly to the buyer prior to a purchase may give rise to an express warranty." Canadian Pac. Ry. Co. v. Williams-Hayward Protective Coatings, Inc. , No. 02-CV-08800, 2005 WL 782698, at *15 (N.D. Ill. Apr. 6, 2005) ; see also Wheeler v. Sunbelt Tool Co. , 181 Ill.App.3d 1088, 130 Ill.Dec. 863, 537 N.E.2d 1332, 1341 (1989) ("Documents, brochures, and advertisements [from the manufacturer] may constitute express warranties."). Although the CAC provides a website to access Huawei's Limited Warranty, CAC ¶ 219 & n.17, there are no allegations that the warranty was available online at the time that Plaintiff Tran purchased his Nexus 6P or that he was directed to the online warranty, accessed the warranty online, or otherwise received the warranty before his purchase, id. ¶¶ 52-57. While Plaintiffs' opposition suggests that Huawei's Limited Warranty was "included in every Google Nexus 6P box," Opp'n 17, there is no corresponding allegation in the CAC. These circumstances do not fit within the privity exception, and Plaintiffs do not even clearly argue that the exception is met in this case. Accordingly, the Court GRANTS Huawei's Motion to Dismiss the express warranty claim of Plaintiff Tran with leave to amend to allege further facts about the privity relationship between Plaintiff Tran and Huawei.

In sum, the Court GRANTS WITH LEAVE TO AMEND Huawei's Motion to Dismiss the express warranty claim of Plaintiffs Martorello and Tran for failure to adequately plead privity.

ii. Breach of Implied Warranty of Merchantability

Plaintiffs bring their second cause of action for breach of the implied warranty of merchantability on behalf of a putative nationwide class but do not specify which law governs the claim. CAC ¶ 235. Alternatively, they assert claims for breach of the implied warranty of merchantability on behalf of the putative statewide subclasses under the laws of the respective states. Id. ¶ 236. Specifically, Plaintiffs' cause of action alleges that Huawei "impliedly warranted that the Phones were of a merchantable quality" but failed to keep that promise because the Nexus 6Ps "were not in merchantable condition and are not fit for the ordinary purpose for which phones are used." Id. ¶ 239. Huawei seeks dismissal on the grounds tha