JUUL Labs Motion to Dismiss Granted in Part, Denied in Part

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JODI BEAN, et al., C.A. No. N24C-10-232 KMM

KYLE DAVILA, et al., C.A. No. N24C-10-242 KMM

CHRISTINE ACCETTURA, et al., C.A. No. N24C-10-244 KMM

TOMRA KUXHOUSE, et al., C.A. No. N24C-10-245 KMM

KIM AULT-FISHBURN, et al., C.A. No. N24C-10-246 KMM

DEREK ARNOLD, et al., C.A. No. N24C-10-247 KMM

CANDICE ALVAREZ, et al., C.A. No. N24C-10-248 KMM

JACOB BECK, et al., C.A. No. N24C-10-249 KMM

THOMAS AKIN, et al., C.A. No. N24C-10-250 KMM

ALBERT R. AYERS, JR., et al., C.A. No. N24C-10-251 KMM

LEE HALL, et al., C.A. No. N24C-10-252 KMM

ANGELA DAVIS, et al., C.A. No. N24C-10-253 KMM

Submitted: December 11, 2025 Decided: March 26, 2026

MEMORANDUM OPINION AND ORDER JUUL Labs, Inc.’s Omnibus Motion to Dismiss –

GRANTED in part, DENIED in part Antranig Garibian, GARIBIAN LAW OFFICES, P.C., Wilmington, Delaware; Eric D. Pearson (argued), Charles E. Miller (argued), HEYGOOD, ORR & PEARSON, Irving, Texas, Attorneys for Plaintiffs David J. Teklits, Alexandra M. Cumings, MORRIS NICHOLS ARSHT & TUNNEL LLP, Wilmington, Delaware; Timothy S. Danninger, GUNSTER, Jacksonville, Florida; Timothy J. McGinn (argued), GUNSTER, Miami, Florida, Attorneys for Defendant

JUUL Labs, Inc. Miller, J.

1. INTRODUCTION Twelve cases, involving claims of 1,005 plaintiffs from forty-nine states and Puerto Rico, were filed against JUUL Labs, Inc. (“JUUL Labs”) asserting various products liability, fraud, negligence and warranty claims arising out of use of JUUL Plaintiffs in one case, Davis v. JUUL Labs, Inc.,Labs’ e-cigarettes. also assert 1 2 personal injury claims. The complaints allege that each plaintiff purchased and used JUUL products due to JUUL Labs’ deceptive marketing strategies, casting the e- cigarette as a healthy alternative to traditional cigarettes, and further, due to manufacturing defects, they suffered economic (and in the Davis case, physical) injuries. JUUL Labs moved to dismiss the complaints on several grounds. First, it asserts that these actions must be dismissed on forum non conveniens grounds. It argues that because plaintiffs were previously parties to a California class action against JUUL Labs that asserted essentially the same claims asserted here, the Court should view these cases as a second-filed actions and apply the neutral Gramercy

This decision cites to the Jodi Bean Complaint (D.I. 1) (“Bean Compl.”); Kyle Davila Complaint 1 (D.I. 1) (“Davila Compl.”); Christine Accettura Complaint (D.I. 1) (“Accettura Compl.”); Tomra Kuxhouse Complaint (D.I. 1) (“Kuxhouse Compl.”); Kim Ault-Fishburn Complaint (D.I. 1) (“Ault-Fishburn Compl.”); Derek Arnold Complaint (D.I. 1) (“Arnold Compl.”); Candice Alvarez Complaint (D.I. 1) (“Alvarez Compl.”); Jakob Beck Complaint (D.I. 1) (“Beck Compl.”); Thomas Akin Complaint (D.I. 1) (“Akin Compl.”); Albert R. Ayers, Jr., Complaint (D.I. 1) (“Ayers Compl.”); Lee Hall Complaint (D.I. 1) (“Hall Compl.”); and Angela Davis Complaint (D.I. 1) (“Davis Compl.”). Common factual allegations from Plaintiffs’ complaints will be cited to the Bean Complaint. N24C-10-253. 2

factors. But plaintiffs opted out of the class action when permitted to do so by the California court, and therefore, they were not a party to that action. Accordingly, the Delaware cases are the first-filed actions and the plaintiff-friendly Cryo-Maid standard applies. Under Cryo-Maid, a plaintiff’s choice of forum is given deference and will only be disturbed when the defendant shows overwhelming hardship. JUUL Labs fails to make such a showing and thus, its forum non conveniens argument fails. JUUL Labs next seeks dismissal on the ground of misjoinder under Rule 20. Each complaint includes claims from 59 to 98 individual plaintiffs, from as many as 27 states. When parties are not properly joined, the remedy is severance, not dismissal. Under the unique circumstances of these cases, some joinder is appropriate under the liberal standard of Rule 20. However, the currently joined claims do not promote judicial economy and efficiency for the parties. The claims are severed and may be refiled in accordance with the parameters set forth below. Finally, JUUL Labs seeks dismissal of various claims under Rule 12(b)(6). Here, its motion meets with some success. As discussed below, some claims are barred by the economic loss doctrine, abrogation, or statute of limitations. Other clams are not adequately pled. Plaintiffs, however, are granted leave to amend. 2

1. BACKGROUND
2. Facts Common to all Plaintiffs
3. JUUL Products By 2014, smoking cigarettes and nicotine addiction were at an all-time low. The founders of JUUL Labs saw this as an opportunity to create a market for their new product that would make nicotine “cool again without the stigma of cigarettes.” 3 To accomplish this goal, JUUL Labs designed, manufactured, sold, marketed, and distributed JUUL e-cigarette devices, JUUL pods, and accessories (collectively “JUUL products” or “JUUL”). JUUL Labs designed its e-cigarette to minimize “throat hit” and maximize “buzz.” It conducted studies to refine its formula to achieve these goals. JUUL 4 5 was designed to deliver four to five milligrams of aerosol per puff, which is an unusually massive puff. The JUUL e-liquid contains about 200-250 micrograms of nicotine, even though JUUL Labs’ scientists recognized that delivery of over 150 per puff “could be problematic.” JUUL Labs ultimately dismissed that concern, 6 7 launching JUUL using a 5% strength solution.

Bean Compl. ¶¶ 2-3. 3 Id. ¶ 135. 4 Id. ¶¶ 136-45. 5 Id. ¶ 146. 6 Id. ¶¶ 147-50. 7

Nicotine is highly addictive and children are particularly vulnerable to nicotine addiction. JUUL Labs researched cigarette companies’ product 8 engineering and manipulated the technology to maximize nicotine delivery. The 9 average domestic cigarette contains “10-15 mg of nicotine per cigarette” and “yields between 1.0 to 1.4 mg of nicotine, meaning that around 10% of the nicotine . . . is delivered to the user.” JUUL has been shown “to deliver at least 82% of the 10 nicotine contained in a JUUL pod to the user.” Thus, JUUL is more potent and 11 delivers nicotine faster than combustible cigarettes. The JUUL e-cigarette is designed to appear slick and high-tech, and included features like “party mode.” JUUL pods contain a liquid that includes nicotine, 12 flavoring, and other additives. As part of its plan to attract younger users, the pods come in a variety of flavors such as mango, cool cucumber, fruit medley, cool mint, crème brûlée, and classic menthol. It marketed the device as “healthy, safe, cool, 13 and available in ‘kid-friendly flavors.’” 14

Id. ¶¶ 112, 116, 227. 8 Id. ¶¶ 120, 142, 156, 200. 9 Id. ¶ 184. 10 Id. 11 Id. ¶ 6. 12 Id. ¶ 123. 13 Id. ¶ 120. 14

JUUL took off quickly. Since the launch in 2015, JUUL Labs has become the dominate e-cigarette manufacturer in the United States, growing revenue by 700 percent in 2017, and by 2019, owning three-quarters of the e-cigarette market. 15

1. JUUL Labs’ Deceptively Markets JUUL as a Smoking Cessation Tool

Despite knowing the addictive nature of its product, JUUL Labs downplayed JUUL’s nicotine content, nicotine delivery profile, and the heightened risks of addiction. It marketed JUUL as a smoking cessation device and recruited third-16 party advertisers to spread misleading narratives about JUUL products. 17 For example, JUUL Labs did not effectively disclose that JUUL contained nicotine and did not include nicotine warnings until August 2018, when it was forced to do so by regulators. Even after the labeling included nicotine warnings, JUUL 18 Labs continued to misrepresent the amount of nicotine contained in each JUUL pod. The packaging represented to consumers that each JUUL pod was at a “5% strength,” and that this equated to the same amount of nicotine as one pack of cigarettes. But 19 JUUL Labs knew each JUUL pod contained “roughly twice the nicotine content of

Id. ¶ 127. 15 Id. ¶ 181. 16 Id. 17 Id. ¶ 182. 18 Id. ¶ 190. 19

a pack of cigarettes.” It also knew JUUL delivered nicotine to the bloodstream 20 more efficiently, resulting in increased risk of addiction. 21 JUUL Labs engaged in false and misleading advertising from the outset. In 2015, it launched a food-based advertising campaign called “Save Room for JUUL,” which depicted JUUL pod flavors being paired with foods. JUUL Labs 22 “described its Crème Brûlée nicotine pods as ‘the perfect evening treat’ that would allow users to ‘indulge in dessert without the spoon’” and “Have a sweet tooth? 23 Try Brulee.” JUUL Labs also depicted JUUL pods as being paired with coffee and 24 other caffeinated drinks, suggesting that JUUL should become a part of the consumers’ daily routine, much like a cup of coffee, and just as safe. 25 In 2019, JUUL Labs released a $10 million television advertising campaign entitled “Make the Switch,” featuring “former smokers aged 37 to 54 discussing 26 ‘how JUUL helped them quit smoking.’” These advertisements were false because 27 JUUL Labs did not intend its e-cigarette to be a smoking cessation device. Just the opposite.

Id. ¶¶ 183, 188. This was known by top officials at JUUL Labs in 2018, including its regulatory 20 head and then-CEO Kevin Burns. Id. ¶ 188. 21 Id. ¶ 197. 22 Id. 23 Id. As another example, it advertised to “Beat The August Heat With Cool Mint.” 24 Id. ¶¶ 198-99. 25 Id. ¶ 201. 26 Id. 27

In addition to these advertisements and similar statements on its website, JUUL Labs furthered its deceptive practices by publicly declaring the device to be a smoking cessation tool. Its then-CEO James Monsees testified before Congress, where he explained that: “The history of cessation products have extremely low efficacy. That is the problem we are trying to solve here.” He spoke of a study 28 conducted by JUUL Labs that found “that after 90 days, 54 percent of those smokers had stopped smoking completely, for a minimum of 30 days already.” JUUL Labs’ 29 messaging conveyed that “unlike cigarettes, JUUL is harmless to your health.” 30 JUUL Labs also introduced “cost-saving calculators” that purported to show the savings consumers would experience by making the switch from cigarettes to JUUL. The calculators, however, assumed that customers would consume the same level of nicotine as smoking cigarettes. But JUUL Labs knew the use rate would be much higher due to JUUL’s high nicotine content and rapid delivery system. 31

Id. ¶ 202. 28 Id. JUUL Labs continued making these public misrepresentations. Id. ¶ 203 (noting the 29 founders’ (former smokers) goal was “improving the lives of the world’s one billion adult smokers by eliminating cigarettes.”); (JUUL “exists to help adult smokers switch off of combustible cigarettes.”); and (“we want to be the offramp for adult smokers to switch from cigarettes, not an on-ramp for America’s youth to initiate on nicotine.”). Id. ¶ 205. JUUL Labs did not have FDA approval to market JUUL as a smoking cessation 30product. Id. ¶ 204. The FDA and other regulators criticized the “Make the Switch” campaign and issued warning letters to JUUL Labs about it marketing its products as a smoking cessation tool.

Id. ¶¶ 213-19.

Id. ¶ 207. 31

1. JUUL Labs Markets its Products to Youths JUUL Labs grew its market and consumer base by marketing its products to adolescents. Winning over the “cool kids” would mean they would be customers for life. JUUL Labs’ marketing plan started with the product’s design by using stylish 32 models and bold colors. Using twenty-something models, JUUL Labs’ advertisements “highlighted themes of sexual attractiveness, thinness, independence, rebelliousness, and being ‘cool’” and often evoked “behaviors more 33 characteristic of underage teen[s] than mature adults.” 34 In furtherance of its marketing plan, JUUL Labs advertised on websites typically visited by adolescents (such as nickjr.com, cartoonnetwork.com, allfreekidscrafts.com, hellokids.com, and kidsgameheros.com), websites 35 supplying teen-focused games, education websites for middle school and high school students, and social media platforms using hashtags, some of which were 36 posted to trending topics unrelated to e-cigarettes to seek out new customers. 37

Id. ¶¶ 222-31. 32 Id. ¶ 233. 33 Id. 34 Id. ¶ 237. 35 Id. 36 Id. ¶ 247. 37

To advance its marketing efforts, JUUL Labs also enlisted influencers who were young and popular with adolescents, including Tavi Gevinson and Miley 38 Cyrus, who gained her fame from the youth television show “Hannah Montana.” 39 By December 2017, JUUL Labs was making presentations in schools as a part of its “youth prevention program.” It paid the schools for access to make these 40 presentations, which served as disciplinary action for students who were caught with JUUL products in school. During at least one presentation “[n]o parents or teachers 41 were in the room and JUUL’s messaging was that the product was ‘totally safe.’” The presenter provided snacks, collected student information, and even demonstrated how to use JUUL during these sessions. 42 JUUL Labs extensively marketed its products in gas stations and convenience stores, to which otherwise aged-restricted youths frequented. It also encouraged 43 these retailers to be more lenient in regulating sales to underage youth. 44

Described by the Rolling Stone magazine the year prior as “possibly the most influential 18-38year-old in America.” Id. ¶ 239. Id. ¶¶ 238-41. 39 Id. ¶ 272. 40 Id. 41 Id. Similarly, JUUL Labs made presentations to a Police Activities League group and engaged 42 teachers at a Charter School to gain access youths in grades 3 to 12 through weeks-long programs.

Id. ¶ 275.

Id. ¶¶ 250-53. 43 Id. ¶ 252. 44

JUUL Labs’ marketing efforts were successful. While it publicly stated that it was not marketing its products to youths, JUUL Labs knew that a large majority 45 of its customers were under 21. 46

1. Plaintiffs’ Individual Allegations In every complaint, except Davis, plaintiffs allege that they each purchased JUUL products in their respective home state and that before the purchase(s), they relied upon one or more of JUUL Labs’ advertisements promoting the benefits of JUUL products: print ads; video commercials; social media ads; online ads; JUUL website; billboards; and/or point of sale advertising. Further, plaintiffs did not know (and were not informed) prior to purchasing a JUUL product that it was an “extremely potent nicotine-delivery mechanism[]” which was “powerfully addictive and posed significant risks of substantial physical injury.” Had JUUL Labs disclosed these defects, plaintiffs would not have purchased a JUUL product or would have paid substantially less for it. Each plaintiff also identifies the dates of use of the 47 JUUL product. 48

Id. ¶ 278. 45 Id. ¶¶ 254-70. 46 Id. ¶¶ 9-97; Davila Compl. ¶¶ 9-100; Accettura Compl. ¶¶ 9-104; Kuxhouse Compl. ¶¶ 9-101; 47 Ault-Fishburn Compl. ¶¶ 9-91; Arnold Compl. ¶¶ 9-96; Alvarez Compl. ¶¶ 9-106; Beck Compl. ¶¶ 9-97; Akin Compl. ¶¶ 9-101; Ayers Compl. ¶¶ 9-73; Hall Compl. ¶¶ 9-67. Bean Compl. ¶¶ 9-97; Davila Compl. ¶¶ 9-100; Accettura Compl. ¶¶ 9-104; Kuxhouse Compl. 48 ¶¶ 9-101; Ault-Fishburn Compl. ¶¶ 9-91; Arnold Compl. ¶¶ 9-96; Alvarez Compl. ¶¶ 9-106; Beck Compl. ¶¶ 9-97; Akin Compl. ¶¶ 9-101; Ayers Compl. ¶¶ 9-73; Hall Compl. ¶¶ 9-67.

The 60 Davis plaintiffs also allege that they have suffered one or more of the following injuries: nicotine addiction; anxiety; mental anguish; asthma; bronchitis; shortness of breath; acute eosinophilic pneumonia/pulmonary eosinophilia; pneumonia (any type); chronic obstructive pulmonary disease (“COPD”); popcorn lung/bronchiolitis obliterans; acute respiratory distress syndrome (“ARDS”); chronic lung problems; E-cigarette or vaping product use associated lung injury (“EVALI”); other specified interstitial pulmonary disease; emphysema; acute interstitial pneumonitis; and/or lipoid pneumonia. 49

1. THE PARTIES’ CONTENTIONS

JUUL Labs contends that these cases should be dismissed for forum non

conveniens, arguing that only one plaintiff out of 1,005 resides in Delaware. It

asserts that the vast majority of the evidence and witnesses are elsewhere and most claims do not apply Delaware law, thus, none of the factors weigh in favor of Delaware. Plaintiffs respond that JUUL Labs must show “overwhelming hardship” 50 before the court will disturb a plaintiff’s choice of forum, and it has failed to make such a showing here. 51

Davis Compl. ¶¶ 9-68. 49 D.I. 10, Opening Brief in Support of Defendant JUUL Labs, Inc.’s Omnibus Motion to Dismiss 50 (“OB”) at 2. D.I. 14, Plaintiffs’ Brief in Opposition to JUUL Labs, Inc.’s Omnibus Motion to Dismiss (“AB”) 51 at 1-2.

Second, JUUL Labs contends that, in violation of Rule 20(a), plaintiffs are improperly joined in these 12 actions. Plaintiffs argue that joinder is proper under 52 the facts here and “necessary to allow the Plaintiffs to efficiently and effectively litigate their related claims.” 53 Finally, JUUL Labs seeks dismissal of various claims under Rule 12(b)(6). Namely, it argues that claims: (1) are barred by the economic loss doctrine, abrogation by statute, or statute of limitations; (2) fail to plead consumer protection, fraud, negligence, and gross negligence claims with the requisite particularity; (3) fail to plead common law fraud with the requisite reliance; (4) fail to adequately plead fraud, an implied warranty of merchantability claim, unjust enrichment, or strict liability; (5) fail to provide pre-suit notice as required by many states; and (6) preemption. While plaintiffs concede some grounds for dismissal, for the 54 remainder, they contend that the claims are adequately pled and are not otherwise barred and therefore, dismissal is not warranted. Plaintiffs seek leave to amend 55 any inadequately pled claim.

OB at 9. 52 AB at 2. 53 OB at 2-3. 54 AB at 2-3. 55

1. DISCUSSION
2. Forum Non Conveniens
3. Delaware’s Three Standards Forum non conveniens seeks to “discourage forum shopping and [] promote

the orderly administration of justice by recognizing the value of confining litigation to one jurisdiction, whenever that is both possible and practical.” “The doctrine 56 empowers a court to decline jurisdiction whenever considerations of convenience, expense, and the interests of justice dictate that litigation in the forum selected by the plaintiff would be unduly inconvenient, expensive, or otherwise inappropriate.” 57 Delaware courts are highly deferential to a plaintiff’s choice of forum. “Indeed, 58 only in a ‘rare case’ will a complaint filed in Delaware be dismissed on the grounds of forum non conveniens.” Whether dismissal is appropriate is left to the sound 59 discretion of the court. 60

United Phosphorus, Ltd. v. Micro-Flo, 808 A.2d 761, 764 (Del. 2002); see also Lisa, S.A. v. 56Mayorga, 993 A.2d 1042, 1047 (Del. 2010); Gramercy Emerging Mkts. Fund v. Allied Irish Banks, P.L.C., 173 A.3d 1033, 1041 (Del. 2017).

Sequa Corp. v. Aetna Cas. and Sur. Co., 1990 WL 123006, at *3 (Del. Super. 1990) (citing 57Monsanto Co. v. Aetna Cas. and Sur. Co., 559 A.2d 1301, 1304 (Del. Super. 1988)).

Lisa, S.A., 993 A.2d at 1047; Taylor v. LSI Logic Corp., 689 A.2d 1196, 1198 (Del. 1997). 58 Mar-Land Indus. Contractors, Inc. v. Caribbean Petroleum Refin., LP, 777 A.2d 774, 778 (Del. 592001). CVS Opioid Ins. Litig., 2022 WL 3330427, at *3 (Del. Super. Aug. 12, 2022) (citing Williams 60Gas Supply Co. v. Apache Corp., 594 A.2d 34, 37 (Del. 1991)). Superior Court Civil Rule 12(b)(3)

governs a motion to dismiss based on forum non conveniens.

The applicable forum non conveniens test varies based on the proceedings in The analysis in General Foods Corp. this court and the parties’ litigation history. 61

1. Cryo-Maid, Inc. (“Cryo-Maid”) applies when the Delaware case is the first-filed 62

McWayne Cast Iron Pipe Corp. v. and no other case is pending elsewhere.63

McDowell-Wellman Engineering Co. (“McWayne”) applies when the Delaware 64

action is the second-filed and another action is pending elsewhere. Finally, 65

Gramercy Emerging Mkts. Fund v. Allied Irish Banks, P.L.C. (“Gramercy”) applies 66

when the Delaware action is filed after a first-filed action in another jurisdiction, which is no longer pending. 67 Each of these tests requires the court to consider the same factors, in one form or another: (1) the relative ease of access to proof; (2) the availability of a compulsory process for witnesses; (3) the possibility to view the premises; (4) whether the controversy is dependent upon Delaware law; (5) the pendency or non-

CVS Opioid Ins. Litig., 2022 WL 3330427, at *3 (citing Aranda v. Philip Morris USA Inc., 183 61A.3d 1245, 1250-51 (Del. 2018)); GXP Cap., LLC v. Argonaut Mfg. Servs., Inc., 234 A.3d 1186, 1194 (Del. Super. 2020), aff’d, appeal dismissed, 253 A.3d 93 (Del. 2021) (citing Candlewood

Timber Grp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989, 998 (Del. 2004)) (“Three distinct

standards for forum non conveniens exist in Delaware and a reviewing court must select the appropriate standard based on the case’s procedural facts.”). 198 A.2d 681 (Del. 1964). 62 GXP Cap., LLC, 253 A.3d at 100. 63 263 A.2d 281 (Del. 1970). 64 GXP Cap., LLC, 253 A.3d at 100. The McWayne doctrine recognizes the “strong preference for 65 the litigation of a dispute in the forum in which the first action relating to such dispute is filed.”

Gramercy Emerging Mkts. Fund, 173 A.3d at 1044.

173 A.3d 1033 (Del. 2017). 66 GXP Cap., LLC, 253 A.3d at 100. 67

pendency of a similar action in another jurisdiction; and (6) all other practical problems that would make the trial easy, expeditious, and inexpensive. What 68 changes, based on the procedural posture, is the strength of the presumption that is applied. 69 The McWane doctrine (“defendant friendly”) requires a stay or dismissal of the Delaware action when the other court is “capable of [providing] prompt and complete justice,” and the other action involves “the same parties and the same Cryo-Maid is known as a “plaintiff friendly” standard because the issues.” 70 defendant must establish that litigating in Delaware would create an “overwhelming Finally, Gramercy (sometimes referred to as an intermediate standard), hardship.” 71 applies the factors on a neutral basis. 72

1. Are the Delaware Cases First-filed? JUUL Labs argues that Gramercy applies because these cases are not the first- filed. Plaintiffs argue that these cases are the first-filed and therefore Cryo-Maid applies.

Id. at 101; Soares v. Cont’l Motors, Inc., 2023 WL 3221891, at *4-5 (Del. Super. May 3, 2023). 68 GXP Cap., LLC, 253 A.3d at 101. 69 McWane, 263 A.2d at 283. 70 GXP Cap., LLC, 234 A.3d at 1194, aff’d, appeal dismissed, 253 A.3d 93 (Del. 2021) 71(citing Candlewood Timber Grp., LLC, 859 A.2d at 998); CVS Opioid Ins. Litig., 2022 WL 3330427, at *4. GXP Cap., LLC, 253 A.3d at 101. 72

1. The California Action In March 2020, a class action was filed against JUUL Labs in the United States District Court for the Northern District of California, which was subsequently consolidated with other class actions and individual suits as part of a multidistrict litigation (the “California Action”). The complaint asserted various product 73 liability claims. No plaintiff in the Delaware actions was a named plaintiff in the 74 California Action, but they were members of the putative class. In 2022, the parties in the California Action reached a settlement. In January 2023, that court preliminarily certified the Settlement Class, defined as “All individuals who purchased, in the United States, a JUUL product from brick and mortar or online retailers before December 6, 2022.” Excluded from the class were 75 “all individuals who timely and properly exclude themselves from the Settlement Class.” The putative class members were provided a deadline to exercise their opt-76 out right. The Settlement was approved on a final basis on September 19, 2023. 77 78

In re JUUL Labs, Inc. Mktg., Sales Pracs., and Prods. Liab. Litig., Case No. 19-md-02913-73 WHO. The California action raised claims of strict liability, products liability, negligence/gross 74 negligence, negligent failure to recall, negligent misrepresentation, fraud, fraudulent concealment, conspiracy to commit fraud, unjust enrichment, violation of unfair trade practices/consumer protection law, breach of express warranty, and breach of implied warranty of merchantability. See

In re JUUL Labs, Inc., Mktg., Sales Pracs., & Prods. Liab. Litig., 497 F. Supp.3d 552, 576-77

(N.D. Cal. 2020). 19-md-02913-WHO, D.I. 3779, Preliminary Settlement Approval Order. 75 Id. 76 Id. 77 19-md-02913-WHO, D.I. 4138. 78

Each of the Delaware plaintiffs opted-out of the California Action and the twelve complaints were filed in Delaware. The claims asserted in the Delaware 79 actions are very similar to the claims asserted in the California Action, except for 80 the additional personal injury claims.

1. Is the choice of filing in California imputed to the Delaware plaintiffs?

JUUL Labs contends that because plaintiffs were parties to the California Action, the Delaware cases are not the first-filed. To support its position, JUUL Labs argues that plaintiffs have used the California Action to their advantage—alleging a substantially similar factual basis for the claims and relying on the California Action to toll the statute of limitations—yet, want to distance themselves from the California Action to forum shop. JUUL Labs argues that plaintiffs should not be permitted to have it both ways and therefore, it is appropriate to find the Delaware cases second-filed. 81 Plaintiffs argue that they did not choose to file in California and could not opt- out of that action until permitted to do so by the California court. Once they had the

The Davis plaintiffs declined to opt into a second settlement of personal injury claims. OB at 1. 79 Plaintiffs assert claims under state consumer protection laws, common-law fraud, breach of the 80 implied warranty of merchantability, unjust enrichment, negligence and/or gross negligence, and strict products liability. See, e.g., Bean Compl. ¶¶ 311-413. JUUL Labs does not seek to dismiss or stay these cases in favor of the California Action, which 81 has concluded. Rather, it seeks dismissal because “[l]itigation in Plaintiffs’ home states…will better serve the interests of justice.” OB at 4. JUUL Labs concedes that this Court cannot compel plaintiffs to file in a particular jurisdiction if these cases are dismissed.

ability to make a choice on where to file, they chose Delaware and thus, these cases are first-filed. “It is axiomatic that an unnamed class member is not ‘a party to the class- action litigation before the class is certified.’” In class actions predominately 82 seeking damages “Rule 23 adds that putative class members do not become party plaintiffs until the time to opt out has elapsed.” “By guaranteeing putative class 83 members an unqualified right to exclude themselves, Rule 23 honors our deep-rooted historic tradition that everyone should have his own day in court.” “Indeed, the 84 Constitution demands that ‘every absent class member must ‘be provided with an opportunity to remove himself from’ a class action seeking predominantly damages.’” 85 Before class certification, putative class members are “mere passive beneficiaries of the action brought on their behalf.” But the commencement of the class action satisfies applicable statute of limitations provisions “as to all those who

1. Sound Cap. LLC v. Merk & Co., Inc., 938 F.3d 482, 492 (3d Cir. 2019) (quoting Smith v. 82Bayer Corp., 564 U.S. 299, 313 (2011)).

2. Sound Cap., 938 F.3d at 492-93. Appriva S’holder Litig. Co., LLC v. EV3, Inc., 937 A.2d 83
   1275, 1286 (Del. 2007) (“the Superior Court’s Rules of Civil Procedure closely track the Federal Rules of Civil Procedure,” therefore, “cases interpreting the federal rules are persuasive authority”).

3. Sound Cap., 938 F.3d at 493 (cleaned up) (citing Ortiz v. Fibreboard Corp., 527 U.S. 815, 84846 (1999)); Perrigo Inst. Inv. Grp. v. Papa, 150 F.4 206, 214 (3d Cir. 2025) (same). th Perrigo Inst. Inv. Grp., 150 F.4 at 214 (quoting N. Sound Cap., 938 F.3d at 493). 85 th
   might subsequently participate in the suit as well as for the named plaintiffs.” 86 Allowing the statute of limitation to be tolled by a class action complaint balances the competing interests of class actions (to promote efficiency and economy of litigation) and statutes of limitations (to preclude stale claims). 87 The Court finds that the Delaware cases are the first-filed for these plaintiffs. They did not choose to file the class action complaint in California. Prior to class certification and opt-out, they were not parties to that action. They had the unqualified right to exclude themselves from the class action to “have [their] own day in court.” That the statute of limitations was tolled by the class action complaint does not change the result. Allowing the limitations period to be tolled promotes judicial economy because otherwise, putative class members would be encouraged to file duplicative suits out of fear that the class might not be certified, or to preserve their claim if they decided later to opt-out. Similarly, plaintiffs asserting the same or similar claims as were asserted in the class action does not weigh against finding the Delaware cases are the first-filed.

American Pipe & Const. Co. v. Utah, 414 U.S. 538, 550 (1974) (holding that the statute of 86 limitations was tolled by the class action complaint for members of the putative class who sought to intervene in an individual action after class certification was denied). Dow Chem. Corp. v. Blanco, 67 A.3d 392, 399 (Del. 2013) (recognizing cross-jurisdictional 87tolling); Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 345-46 (1983) (class action complaint tolled the statute of limitations for putative class members who filed individual actions after class certification was denied).

Plaintiffs have a protected right to file an individual claim. They chose to do so. Thus, plaintiffs are not “having it both ways,” as JUUL Labs claims.

1. Application of the Cryo-Maid Factors Under the Cryo-Maid analysis, a moving defendant must show “overwhelming hardship” with particularity to earn dismissal of a first-filed action. 88 “This standard ‘is not intended to be preclusive[,]’ but it ‘is intended as a stringent standard that holds defendants who seek to deprive a plaintiff of [its] chosen forum “[T]he court should not treat [the Cryo-Maid to an appropriately high burden.’” 89 factors] as a checklist or tally sheet.” The court must “look to the circumstances 90 as a whole to determine whether an overwhelming hardship is present.” 91

(1) Relative ease of access of proof. A defendant must “make a particularized

showing that witnesses, documents, or other evidence necessary to defend the allegations contained in the complaint cannot be brought to or otherwise produced in Delaware.” JUUL Labs argues that evidence is more accessible in each 92 plaintiff’s home state and none is found in Delaware. It asserts that all witnesses, evidence of JUUL Labs’ marketing, and individual product usage are located

Aranda, 183 A.3d at 1251. 88 CVS Opioid Ins. Litig., 2022 WL 3330427, at *7 (quoting Martinez v. E.I. DuPont de Nemours 89& Co., 86 A.3d 1102, 1105 (Del. 2014)).

Harris v. Harris, 2023 WL 355179, at *8 (Del. Ch. Jan. 23, 2023). 90 Barrera v. Monsanto Co., 2016 WL 4938876, at *5 (Del. Super. Sept. 13, 2016). 91 Mar-Land Indus., 777 A.2d at 781. 92

elsewhere, and JUUL Labs would be required to use 49 different jurisdictions’ rules for interstate depositions and discovery. 93 Plaintiffs, of course, will have to produce evidence supporting their claims – medical records, discovery relating to reliance, and use of the product, for example. JUUL Labs, directly or through its agents, is in possession of evidence of its design, testing, and marketing of its JUUL products. “[I]n this day and age, Plaintiffs’ medical records and other documents pertaining to their diagnoses are or can be made available electronically. [T]he potential inconvenience of having to transport documents is slight because ... [m]odern methods of information transfer render concerns about transmission of documents virtually irrelevant.” 94 As for evidence in the possession of others, JUUL Labs failed to show that this evidence would be more accessible in each plaintiff’s home state. Indeed, it failed to identify the location of any specific piece of evidence, with the exception of a general assertion of the family and friends of a plaintiff, who presumably live in the same state as the plaintiff. But JUUL Labs failed to make any showing that these witnesses cannot be made available in Delaware. This factor does not weigh 95 in favor of dismissal.

OB at 6; D.I. 47, Reply Brief in Support of Defendant JUUL Labs, Inc.’s Omnibus Motion to 93 Dismiss (“RB”) at 6-7.

Barrera, 2016 WL 4938876, at *6 (internal quotations and citations omitted). 94

See CVS Opioid Ins. Litig., 2022 WL 3330427, at *7 (noting that modern transportation methods 95lessens the concern over witness travel); Mar-Land Indus., 777 A.2d at 780 (“The defendant must

(2) Availability of compulsory process for witnesses. In the context of this

factor, the court considers whether “another forum would provide a substantial improvement as to the number of witnesses who would be subject to compulsory process.” JUUL Labs argues any non-party witnesses who have knowledge of a 96 plaintiff’s JUUL use, who likely resides in the plaintiff’s home state, and those from whom a plaintiff purchased the product, are not subject to the compulsory process in Delaware. Additionally, it argues that no evidence of JUUL Labs’ marketing is 97 located in Delaware. JUUL Labs fails to identify any witness it deems necessary to call at trial or explain why (i) it cannot secure the witness’ attendance, such as where the person works for JUUL Labs, is within its control or, is itself a Delaware entity, or (ii) 98 testimony by deposition would not be sufficient. JUUL Labs does not explain why it would be substantially burdened by issuing subpoenas to these witnesses as 47 states have enacted the Uniform Interstate Depositions and Discovery Act. 99

put forth particularized evidence demonstrating that, for each Cryo–Maid factor relied upon, requiring the litigation to proceed in Delaware will result in overwhelming hardship.”). Mt. Hawley Ins. Co. v. Jenny Craig, Inc., 668 A.2d 763, 769 (Del. Super. 1995). 96 OB at 6-7; RB at 7-8. 97 See Warburg v. Pincus Venures, L.P., 774 A.2d 264, 270 (Del. 2001) (noting that defendant could 98 obtain live testimony from witnesses under its control). See Armenta v. G/O Media Inc., 2024 WL 4433946, at *10 (Del. Super. Oct. 7, 2024); Harris, 992023 WL 355179, at *12. See also Interstate Depositions and Discovery Act, UNIF. L. COMM’N, https://www.uniformlaws.org/committees/community-home?CommunityKey=181202a2-172d- 46a1-8dcc-cdb495621d35. The remaining three states and Puerto Rico have introduced legislation to adopt the act.

JUUL Labs has also not shown that all of the witnesses would be available in each of plaintiff’s home state. Thus, JUUL Labs may still have to issue multiple subpoenas for out-of-state witnesses even if these cases were dismissed. “When a defendant does ‘not name the witness it deem[s] necessary to call . . . or explain why their testimony could not be presented in Delaware by deposition . . . [i]t follows that the defendant fail[s] to sustain its burden of proof in this regard.’” This factor does not favor dismissal. 100

(3) Possibility of viewing the premises. This factor does not apply to the

allegations in the complaints.

(4) Whether the controversy is dependent upon application of Delaware law which the courts of this State more properly should decide than those of another jurisdiction. JUUL Labs argues that Delaware law does not apply (except

for one plaintiff), but rather, the laws of each individual plaintiff’s home state will

CVS Opioid Ins. Litig., 2022 WL 3330427, at *7 (quoting States Marine Lines v. Domingo, 269 100 A.2d 223, 226 (Del. 1970)). JUUL Labs also asserts that because there are so many plaintiffs, it cannot name these third-party witnesses by name, nor is it required to do so. JUUL Labs relies on

In re Nash v. McDonald’s Corp., where the tortious conduct occurred in Spain, plaintiffs resided

in the United Kingdom, and the only connection to Delaware was McDonald’s incorporation. Unlike here, all potential witnesses and documents were located outside of the United States— restaurant staff resided in Spain and medical records were located in the United Kingdom. In re

Nash v. McDonald’s Corp., 1997 WL 528036, at *2-3 (Del. Super. Feb. 27, 1997). The court found

it could not compel the attendance of Spanish and British witnesses, and even if the witnesses voluntarily appeared, the cost would be exponential for both parties. See also Schmidt v. Wash.

Newspaper Publ’g Co, LLC, 2019 WL 4785560, at *7 (Del. Super. Sept. 30, 2019) (explaining that

under the Gramercy framework, a defendant need not identify unavailable witnesses, but it must do so under the Cryo-Maid overwhelming hardship analysis).

apply. Recognizing that Delaware often applies the laws of other states, JUUL 101 Labs argues that Delaware courts do not often apply the laws of 49 jurisdictions “at once.” First, a choice of law analysis has not yet been conducted. While plaintiffs 102 live in many other states, that does not necessarily preclude the application of Delaware law. Second, Delaware courts frequently “decide legal issues—even 103 unsettled ones—under the law of other jurisdictions.” “[T]he application of 104 foreign law is not sufficient to warrant dismissal under the doctrine of forum non

conveniens.” This factor does not weigh in favor of dismissal. 105

OB at 8. 101 Delaware uses the most significant relationship test to determine the choice of law. Deuley v. 102DynCorp Intern., Inc., 8 A.3d 1156, 1160 (Del. 2010). “Although the presumption favoring the

place of injury is strong, it is not necessarily decisive.” Barrera v. Monsanto Co., 2016 WL 4938876, at *11 (Del. Super. Sept. 13, 2016). The test requires the court to conduct a fact intensive analysis, which cannot always be done at the motion to dismiss stage. Id.; Cresa Global Inc. v.

Chirisa Cap. Mgt. (US) LLC, 2025 WL 53168, at *4 (Del. Super. Jan. 9, 2025) (citing Dow Chem. Co. v. Organik Kimya Holding A.S., 2018 WL 2382802, at *6 (Del. Ch. May 25, 20218))

(“Needless to say, the ‘most significant relationship’ test entails a fact-intensive inquiry that often is inappropriate to a motion to dismiss.”). Such is the case here. Therefore, the Court will not make a choice of law determination. For purposes of this motion, the Court will apply the laws of the state as argued by the parties. Deuley, 8 A.3d at 1161 (explaining a “false conflict” where Delaware law will apply if it does 103not conflict with the laws of the competing jurisdiction); Soares, 2023 WL 3221891, at *4-5 (finding this factor neutral where choice of law had not yet been determined); Varsity Brands

Holdings Co. LLC v. Arch Ins. Co., 2025 WL 552500, at *12 (Del. Super. Feb. 19, 2025) (same).

CVS Opioid Ins. Litig., 2022 WL 3330427, at *10. 104 Id. (quoting Berger v. Intelident Sols., Inc., 906 A.2d 134, 137 (Del. 2006)). 105

(5) Pendency of a similar action in another jurisdiction. The parties agree

that there is no other pending action. “The absence of another pending litigation weighs significantly against granting a forum non conveniens motion.” 106

(6) Other practical considerations. JUUL Labs argues that Delaware lacks

interest in the litigation of 1,004 out-of-state plaintiffs and allowing these cases to proceed would expend substantial judicial resources at the expense of in-state litigants. 107 The last “catch-all” factor takes into account a variety of factors that “would affect the conduct of the litigation and the expeditious and economic administration of justice,” including the trial court’s ability to manage its own docket and promote efficient use of its resources. While the interest is “strongest where substantive 108 issues of corporate governance are implicated,” Delaware has “an interest in 109 regulating the conduct of entities formed under its laws.” This last factor “will 110 seldom, in isolation, be dispositive of whether dismissal on the grounds of forum

non conveniens is warranted.” 111

Berger, 906 A.2d at 137; Armenta, 2024 WL 4433946, at *11. 106 OB at 7-8. 107 Harris, 2023 WL 355179, at *13. 108 GXP Cap., LLC, 253 A.3d at 106. 109 Cresa Glob. Inc., 2025 WL 53168, at *4 (“While it is true that this interest is strongest when 110the dispute involves corporate governance matters, this does not mean that if the dispute does not involve corporate governance matters that Delaware has no interest in the dispute.”) (emphasis in original). Martinez, 86 A.3d at 1113. 111

While Delaware’s interest in these cases may be light, this factor does not weigh in favor of dismissal. Additionally, as discussed in the next section, the court has other tools available to it to handle these cases.

1. Balancing the Factors. Taken together, the Cryo-Maid factors do not weigh in favor of dismissal. JUUL Labs claims that it will suffer an overwhelming hardship if forced to litigate these cases in Delaware. At most, it has shown that litigating in Delaware may be less convenient. JUUL Labs has failed to meet its high burden of establishing 112 overwhelming hardship. This is not the rare case where the court will disturb a 113 plaintiff’s choice of forum. JUUL Labs’ motion to dismiss based on forum non

conveniens is denied.

1. Joinder
2. Joinder Standard Superior Court Civil Rule 20(a) allows for permissive joinder of plaintiffs’ claims if the claims “arise out of the same transaction, occurrence, or series of

Warburg, 774 A.2d at 270 (noting that defendant did nothing more “than claim inconvenience 112 and [had] not supported this claim with anything of substance.”). JUUL Labs’ arguments that litigating in Delaware, as opposed litigating these cases in 49 113 jurisdictions as it is now urging, is directly contrary to its position when it sought to transfer multiple cases to California to be consolidated. See AB, D.I. 15, “Appendix A” at A-15 (JUUL Labs’ Motion to Transfer) (“Litigating these cases separately would impose substantial and duplicative discovery burdens.” “Because all of the actions concern the same products and allege the same conduct by [JUUL Labs], discovery in the ten actions will overlap substantially, including the same witnesses, the same documentary evidence, and the same third-party discovery.”).

transactions or occurrences and any question of law or fact common to all these persons will arise in the action.” Both requirements must be satisfied to properly 114 join parties under Rule 20. As noted above, multiple cases were filed against 115 JUUL Labs around the country. In its motion to transfer those cases to the Multidistrict Litigation (“MDL”) in California, JUUL Labs argued that the cases “involved common questions of fact and law….” Thus, JUUL Labs does not 116 challenge the second requirement of Rule 20(a) here. Rather, it attacks the complaints on the “same transaction, occurrence, or series of transactions or occurrences” requirement. The purpose of Rule 20 is to promote judicial economy, expedite final disposition of disputes, and thereby avoid multiple lawsuits. “Joinder of claims 117 and parties is ‘strongly encouraged,’ and [the trial court] should ‘entertain[] the broadest possible scope of action consistent with fairness to the parties.’” 118 Permissive joinder is not a substantive right, but a procedural mechanism that allows parties with similar substantive claims to be joined in one action. If parties are 119

Del. Super. Civ. R. 20(a). 114 Sequa Corp., 1990 WL 123006, at *8. 115 See AB, Appendix A at A-1. 116 Crawford v. Syngenta Crop Prot., LLC, 2024 WL 2831554, at *4 (Del. Super. May 31, 2024); 1177 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FED. PRAC. & PROC. § 1652 (3d ed.) (2025). Davis v. Neal, 2023 WL 5289445, at *10 (D. Del. Aug. 17, 2023); Sequa Corp., 1990 WL 118 123006, at *8. Allen v. Cherokee Cty., NC, 2021 WL 2003561, at *2 (W.D.N.C. May 19, 2021). 119

misjoined, the remedy is severance, not dismissal. Permissive joinder is left to 120 the sound discretion of the court. 121 The first element “refers to the similarity in the factual background of the relevant claims and requires a case-by-case examination of the facts.” 122 “Transaction or occurrence” is flexible. Rule 20 does not require “precise congruence” of all factual and legal issues. “The events comprising the 123 transaction or series of transactions must[, however,] ‘bear[] a logical’ relationship to one another.” A logical relationship “exists where ‘separate trials on each of 124 the claims would involve a substantial duplication of effort and time by the parties and courts’ because the claims are ‘offshoots of the same basic controversy between the parties.’” 125 Under Rule 20(b), the court may “order separate trials or make other orders to prevent delay or prejudice.” Additionally, under Rule 21, parties may be dropped 126 at any stage of the action “on such terms as are just.” 127

Id.; Del. Super. Civ. R. 21. 120 7 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FED. PRAC. & PROC. § 1652 (3d ed.) (2025). 121 Davis, 2023 WL 5289445, at *10 (cleaned up) (quoting Cooper v. Fitzgerald, 266 F.D.R. 86, 122 88 (E.D. Pa. 2010)). Crawford, 2024 WL 2831554, at *4; Sequa Corp., 1990 WL 123006, at *8 (quoting Mesa 123Comput. Util., Inc. v. W. Un. Comp. Util., Inc., 67 F.D.R. 634, 637 (D. Del. 1975)).

Davis, 2023 WL 5289445, at *10. 124 Id.; Crawford, 2024 WL 2831554, at *4 (citing Pallano v. AES Corp., 2016 WL 97496, at *2 125 (Del. Super. Jan. 4, 2016)). Del. Super. Civ. R. 20(b); see also Tumlison v. Advanced Micro Devices, Inc., 2010 WL 126 8250792, at *3-4 (Del. Super. July 23, 2010) (finding permissive joinder under Rule 20, but requiring separate trials). Del. Super. Civ. R. 21. 127

1. The Parties’ Contentions
   JUUL Labs argues that each of the 12 complaints misjoin between 59 and 98 plaintiffs, from as many as 27 states. It argues that these plaintiffs cannot be joined 128 because they purchased JUUL products at different times, in different states, based on different advertising, from different sources, and each suffered different injuries. 129 Plaintiffs contend that the parties are properly joined because each plaintiff purchased a JUUL product for personal use from JUUL Labs (or an authorized retailer), relied on JUUL Labs’ false marketing, and suffered similar injuries. 130 Plaintiffs argue that it does not matter what advertisement each plaintiff saw (and relied on) because none of the advertisements disclosed the design defects relating to the use of nicotine to foster addiction. 131

2. Cases Relied on by JUUL Labs
   JUUL Labs relies on a variety of toxic tort and product liability cases for the proposition that because plaintiffs’ claims arose at different times in different locations, no joinder is permissible. But these cases do not stand for the proposition that no joinder is ever permissible.

OB at 10. 128 Id. at 11. 129 AB at 16. 130 D.I. 52, Hearing Transcript (“Tr.”) at 111, 131. 131

In In re Zantac (Ranitidine) Prods. Liab. Litig., an MDL, the parties agreed 132 to a pretrial order that prohibited multi-plaintiff complaints. After the court granted defendants’ Daubert motion on causation, plaintiffs had to file individual cases in federal court to appeal the ruling. Plaintiffs now objected to the pretrial order and sought to file the 58,000 claims in multi-plaintiff cases, organized by law firm. So each of the approximately 330 law firms representing plaintiffs would file one complaint for all of their respective clients. The court ruled that Rule 20 cannot be satisfied by grouping plaintiffs by law firm. 133 The Zantac court went on to find that Rule 20 was not satisfied because “Plaintiffs, each with unique physiology, consumed a drug created by different manufacturers, using different supply chains, at different times, in different places, with varying levels of exposure. Furthermore, the carcinogen at issue in this MDL is found in trace amounts in water, air, and food.” The court noted that there “were 134 too many opportunities over the years for other factors to cause the Plaintiffs’ or the Claimants’ cancer.” Accordingly, the court ruled that joinder would create an 135 unmanageable and unworkable burden, instead of easing the burden.

343 F.R.D. 347 (S.D. Fla. 2023); OB at 13. 132 In re Zantac (Ranitidine) Prods., 343 F.R.D. at 349-52. 133 Id. at 351. 134 Id. at 352. 135

In re Orthopedic Bone Screw Prods. Liab. Litig. involved plaintiffs from 136

many states who “went to different doctors or teams of doctors and medical facilities and providers . . . for different reasons, and underwent surgery at different times in what could likely be over one thousand different medical providers locations staffed by different personnel.” Plaintiffs proposed filing multi-plaintiff cases, organized 137 by judicial district in which the plaintiffs resided. This, the court ruled, did not satisfy Rule 20’s “transaction or occurrence” requirement. The court, however, did not rule out that some type of grouping may be appropriate given the liberal policies of Rule 20, and posing that maybe plaintiffs “who underwent surgery at the same medical provider, involving the same manufacturer’s device, or combination of devices, could, in obedience to Rule 20” be joined. 138 In Green v. Wyeth, plaintiffs sued Wyeth and its affiliates arising out of their use of a diet drug manufactured and marketed by Wyeth, a physician who prescribed the drug to one of the five plaintiffs, and a sales representative who promoted the drug to another plaintiff. The court ruled that the plaintiffs’ claims against the 139

1995 WL 428683 (E.D. Pa. July 17, 1995). 136 Id. at *2. 137 Id. (plaintiffs’ counsel argued that “developing discovery in this case appears to justify linking 138 manufacturers, distributors, and providers, and possibly doctors and others, in a confederation at best and a conspiracy at worst, in regard to the marketing of manufacturers’ products that could be a central issue in this case. If that is so, or believed to be so, and good grounds exist to support such allegations, the ‘series of transactions’ requirement of Rule 20 might be satisfied for filing purposes…”). Green v. Wyeth, 344 F. Supp.2d 674, 677 (D. Nev. 2004). 139

Wyeth defendants “may [be] regard[ed as] the ‘same transaction or occurrence’— i.e., the manufacture and marketing of Fen–Phen—[but] this characterization of the complaint would not apply equally to the physician and sales representative who are joined as Defendants.” The claims against the misjoined defendants were 140 severed. 141 In Simmons v. Wyeth Labs., Inc., the court was faced with several 142

complaints, each with multiple plaintiffs, asserting claims arising out of the use of Norplant, a contraceptive drug marketed by the defendants. Based on the allegations in the complaints, the court stated that it did not have sufficient information “to even speculate as to how the plaintiffs before me may have been involved in the same transaction or occurrence or series of transactions or occurrences.” While the court severed the claims and ordered that they be repled, it did not mandate that each plaintiff file her own complaint. Rather, consistent with the statements in Bone

Screw, the court allowed for multiple plaintiffs where “plaintiffs received identical

information from the defendants through identical means or sources at the same

Id. at 683. 140 Id. JUUL Labs relies on Green for the quote “Several courts have held that the ingestion of 141 medication among various Plaintiffs alone cannot constitute the “same transaction or occurrence.” JUUL Labs cites Cumba v. Merck & Co., Inc., 2009 WL 1351462, at *1 (D. N.J. May 12, 2009) for the same proposition. This Court does not disagree with these statements, but that factor is not

the sole determinative of whether Rule 20 is satisfied.

1996 WL 617492 (E.D. Pa. Oct. 24, 1996). 142

point in time, and were implanted with the drug by the same doctor at the same facility….” 143 In In re Fosamax (Alendronate Sodium) Prods. Litig. (No. II), 91 plaintiffs 144 were joined in one action asserting claims for a “long bone fracture,” but the complaint did not specify for each plaintiff what bone was fractured, what type of fracture occurred, or the circumstances of how the fracture occurred. 145 also failed to allege when they took the drug and for how long. Further, plaintiffs purchased the product from a wide variety of manufacturers. Therefore, the court 146 found that the plaintiffs were misjoined. In Breitner v. Merck & Co., multiple plaintiffs were joined in one complaint 147

alleging injuries from a vaccine manufactured by the defendant. Ruling that plaintiffs were misjoined, the court found that plaintiffs did not allege that they received the same lot of the vaccine, at the same time, or by the same healthcare providers. 148

In re Silica Prods. Liab. Litig., plaintiffs alleged injuries from exposure to 149

silica, which can develop into silicosis after long-term exposure. Silicosis is one of

Id. at *4 (citing In re Orthopedic Bone Screw, 1995 WL 428683, at *2). 143 2012 WL 1118780 (D.N.J. Apr. 3, 2012). 144 Id. at *4. 145 Id. 146 2019 WL 316026 (D.N.J. Jan. 24, 2019). 147 Id. at *4. 148 398 F. Supp.2d 563 (S.D. Tex. 2005). 149

the “oldest recognized occupational diseases.” Plaintiffs, who worked in a variety 150 of different trades, claimed they were exposed to silica dust in a variety of work environments at multiple employers, over a vast period of time. The court did not 151 reach the question of whether plaintiffs were properly joined under Rule 20, but 152 in its survey of other courts’ decisions on joinder, noted that joinder of plaintiffs who have no connection to each other does not promote efficiencies or trial convenience. 153 Finally, plaintiffs in Boyle v. St. Joe Paper Co., named several defendants 154 in their action to seek an order to quiet title. Only one defendant, however, claimed any right to the properties. The court stated that while Rule 20 permitted the joinder of all of these defendants, plaintiffs must actually have a claim against each. Because the remaining defendants expressly disavowed any interest in the properties, the court dismissed them from the action.

1. Other Relevant Cases In Crawford v. Syngenta Crop Protection, LLC, this court was faced with 24 complaints with over 150 plaintiffs alleging they suffer from Parkinson’s disease from exposure to paraquat. Defendants, the exclusive manufacturers and 155

Id. at 570. 150 Id. at 574, 651. 151 Id. at 656. 152 Id. at 652. 153 1986 WL 13113 (Del. Super. Oct. 29, 1986). 154 Crawford, 2024 WL 2831554, at *1. 155

distributors of the product, argued that 16 of the cases improperly joined plaintiffs who were unconnected and suffered the injury under different circumstances. The court noted Delaware’s “liberal rules for joinder” and found that plaintiffs satisfied the requirements of Rule 20. 156

Davis v. Neal, filed in the District of Delaware, involved claims by 39

prisoners alleging a systematic pattern of abuse, asserting claims for violations of Section 1983 and state law tort claims. Each plaintiff was abused at a different 157 time, by different guards, in a different manner, and suffered different injuries. 158 Defendants moved to sever, arguing that plaintiffs’ claims did not satisfy Rule 20’s “transaction or occurrence” prong. As here, defendants did not challenge the second prong of Rule 20(a). The court denied the motion finding that plaintiffs sufficiently alleged that defendants created a systemic pattern of abusive and unlawful conduct. The court 159 noted that although each plaintiff’s allegations of abuse occurred on different days, the claims were “logically related because Plaintiffs allege they are part of a larger, frequent, and consistent pattern of violence and abuse” at the prison. 160

Id. at *4-5. 156 Davis, 2023 WL 5289445, at *1-2. 157 Id. at *1, 11. 158 Id. at *11. 159 Id. 160

The Davis court distinguished cases involving “logically disjointed” claims, such as Parkell, asserting claims of illegal strip searches, interference with mail, and Fatir, asserting religious discrimination, and Eight Amendment violations, 161 claims for religious discrimination, conditions of confinement, medical needs, postal charges, and denial of good time credit. 162

1. Other Considerations Multi-plaintiff complaints raise other administrative and practical concerns for the court. On a practical level, a docket with 90 plaintiffs makes it much more difficult for the Prothonotary’s office (the Superior Court’s clerk’s office), to manage the docket and keep track of filings as they relate to individual plaintiffs. On a financial level, there is an issue of the filing fee. Each of these twelve cases was charged $211.25, or a total of $2,535. If each plaintiff filed an individual complaint, the filing fees would amount to $212,306.25. Filing fees serve two important purposes. First, the fees help fund the staff’s services to process the cases and the court’s resources are already stretched thin. Second, paying filing fees ensures plaintiffs (and their counsel) have “skin in the game,” promoting a 163 thorough review of claims before filing complaints.

Parkell v. Linsey, 2017 WL 3485817, at *3-4 (D. Del. Aug. 14, 1987). 161 Fatir v. Markell, 2016 WL 5946870, at *5 (D. Del. Oct. 12, 2016). 162 See Zantac (Ranitidine) Prods., 343 F.R.D. at 353 (discussing the implications of not paying a 163 filing fee for each plaintiff and noting that Rule 20 does not permit joinder solely to reduce filing fees); see also Breitner v. Merck & Co., 2019 WL 316026, at *4 n.6 (discussing the impact of not paying a filing fee for each plaintiff).

1. Joinder, with Some Parameters, is Appropriate While Rule 20(a) needs to be assessed on a case-by-case basis, the cases reviewed above appear to have some common themes in analyzing “transaction or occurrence.” First, it is clear that use of, or exposure to, the same product alone is insufficient to satisfy Rule 20(a). Second, courts tend to find that Rule 20(a) is not satisfied when (i) plaintiffs were exposed to, or prescribed, the product by multiple players in the process (i.e., different employers, different doctors, different hospitals), (ii) the product was manufactured, marketed, and/or distributed by multiple players, (iii) plaintiffs’ exposure to the product vastly differ, and/or (iv) the injuries could be caused by other factors (as in Zantac), each plaintiff’s unique physiology is particularly relevant to the alleged injuries, or the injuries vastly differ (as in Fosamax). This Court agrees with the courts requiring one plaintiff per complaint, such as Fosamax and Zantac for example. The Court finds that these

JUUL Labs cases, however, are different. The Court finds Davis persuasive in this

analysis. While plaintiffs in Davis suffered different injuries, at different times, at the hands of different alleged actors, the court found that the claims were logically related because plaintiffs alleged a consistent pattern of violence and abuse at the prison. Here, plaintiffs allege, in detail, a consistent pattern of deception by JUUL Labs in the design, manufacturing, and marketing of its product. The logical relation 37

of these claims is that, to some extent, all of them involve the same systematic conduct by JUUL Labs. Plaintiffs alleged that JUUL Labs designed JUUL to minimize “throat hit” and maximize “buzz.” To that end, JUUL Labs designed the product to deliver a “massive puff” that delivered 200 to 250 micrograms of nicotine, even though its own researchers warned against anything above 150 micrograms. JUUL was also designed to deliver nicotine extremely efficiently (82% delivery rate compared to cigarettes’ 10% rate) and contained a much higher amount of nicotine than a pack of cigarettes (2.5 times). JUUL Labs is also alleged to have falsely marketed JUUL as a smoking cessation device and improperly marketed and sold the product to underage users. Rule 20(a) does not require that there be complete alignment of the claims and therefore, plaintiffs viewing different ads or suffering different injuries does not preclude joinder. Prior to these Delaware actions, several cases alleging the same or similar claims as asserted here were filed around the country. JUUL Labs sought to have those cases consolidated for pretrial purposes because the actions “substantially overlap[ed] in many ways,” including the legal theories and causes of action. 164 JUUL Labs asserted that the cases “all center[ed] around the same or closely related operative theories of alleged wrongdoing[,]” which included its marketing of JUUL to attract minors, failing to disclose that JUUL was more potent and addictive than

AB, Appendix A at A-10. 164

cigarettes, the product was unreasonably dangerous due to its attractiveness to minors and the nicotine content, and JUUL Labs promoted nicotine addiction. 165 JUUL Labs argued that 28 U.S.C. § 1407(a)’s “convenience of the parties and witnesses … and promot[ion] of the just and efficient conduct of … [the] action” prong was satisfied because consolidation of these claims would reduce discovery burdens and promote efficiency. 166 Plaintiffs’ logically related claims (involving only one defendant who was responsible for the design, manufacturing, and marketing) along with JUUL Labs’ previous position with respect to administering these cases together, leads the Court to conclude that some joinder is appropriate here. While Rule 20(a) is liberally applied, it is not without boundaries. In addition to fairness and efficiencies for the parties, the court is to consider the efficiencies and burdens on the court. In the past two years, the Superior Court has experienced an explosion of mass toxic tort/products liability cases. In 2023, the court had 201 such cases. Today, 1,646 cases are pending. This figure does not account for the additional 993 plaintiffs spread across these 12 cases or the approximately 3,000 claimants in other multi-plaintiff complaints currently pending in this court. These cases take a lot of coordination and effort by the Prothonotary’s office in managing

Id. at A-11. 165 Id. at A-15-20. 166

the docket. Complaints with the number of plaintiffs in these 12 cases makes the clerks’ tasks particularly difficult. Another problem is the filing fee. As explained above, the filing fee helps to provide funding for the court’s services. Aggregating a large number of plaintiffs in one complaint deprives the court of this source of revenue. While a case filing fee is modest, the loss of fees on these types of complaints becomes significant for the court. Saving filing fees is not the purpose of Rule 20(a). 167 The court is also concerned that some counsel may use a reduced filing fee to avoid fully vetting all of the claimants’ claims before filing. Not only does this raise potential Rule 11 issues, but the court is then faced with plaintiffs’ counsel moving to withdraw for certain of the plaintiffs in a multi-plaintiff complaint, leading to more burden administering the docket and scheduling of the cases. If larger filing fees are required, the risk of this occurring is diminished. 168 Balancing the needs and interests of the parties and the Superior Court, the Rule 20(a) motion is GRANTED in part and DENIED in part. Each plaintiff’s claim is severed and may be repled but each complaint shall have no more than 20 plaintiffs.

See Zantac (Ranitidine) Prods., 343 F.R.D. at 353. 167 The Court does not suggest that plaintiffs’ counsel here sought to avoid the filing fees or failed 168 to vet their claimants. At argument, plaintiffs’ counsel advised the Court that they will pay whatever amount the Court orders.

Plaintiffs in each complaint are to reside in the same state. While a choice 169 of law analysis has not been conducted in these cases, grouping the plaintiffs by state of residence will assist in presentation of arguments under a particular jurisdiction’s laws. Even with this limit, trying 20 plaintiffs likely will not be workable. The Court can address trial issues later in these cases under Rule 20(b) and Rule 21. 170 171

1. Failure to State a Claim
2. Standard of Review Upon a motion to dismiss pursuant to Superior Court Civil Rule 12(b)(6), the court accepts all well-pleaded allegations in the complaint as true. Even vague 172 allegations are considered well-pleaded if they give the opposing party notice of the claim.The court draws all reasonable inferences in favor of the non-moving party. 173 However, the court will not “accept conclusory allegations unsupported by specific facts” or “draw unreasonable inferences in favor of the non-moving party.” The 174 claim will be dismissed only if the plaintiff “would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof.” 175

JUUL Labs has conceded that common issues of law apply to these cases. 169 Under Rule 20(b), the court may order separate trials. 170 Under Rule 21, a party may be severed at any stage of the proceeding “on such terms as are 171 just.” Sees v. Mackenzie, 2023 WL 5202675, at *2 (Del. Super. Aug. 14, 2023). 172 Id. 173 Id. (quoting Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011)). 174 Id. (quoting Windsor I, LLC v. CWCapital Asset Mgmt. LLC, 238 A.3d 863, 871 (Del. 2020)). 175

1. The Economic Loss Doctrine 176 The economic loss doctrine precludes recovery in tort when the alleged injury arising from the defendant’s conduct is economic in nature and there is no injury to a person or property (other than product itself). Generally, it bars claims of strict liability, negligence, gross negligence, fraud, and unjust enrichment. The 177

In their brief, plaintiffs argued that all plaintiffs alleged personal injuries. But at oral argument 176plaintiffs conceded that only the Davis plaintiffs adequately alleged personal injuries. Thus, the Court will analyze the sufficiency of the claims on the basis that no plaintiff, except the Davis plaintiffs, alleges personal injuries. See AB at 23-32; Tr. at 116. Lloyd Wood Coal Co. v. Clark Equip. Co., 543 So. 2d 671, 673 (Ala. 1989) (negligence and 177strict liability); Morrow v. New Moon Homes, Inc., 548 P.2d 279, 283-85 (Alaska 1976) (same);

Sullivan v. Pulte Home Corp., 306 P.3d 1, 3 (Ariz. 2013) (common law fraud, strict liability, and

negligence); Epperson v. Gen. Motors, LLC, 706 F. Supp.3d 1031, 1043-44 (S.D. Cal. 2023) (same); Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1264-66 (Colo. 2000) (tort claims absent an independent duty of care); Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Cos., 110 So. 3d 399, 404-05 (Fla. 2013) (strict liability and negligence); Home Depot U.S.A., Inc. v. Wabash

Nat’l Corp., 724 S.E.2d 53, 59 (Ga. Ct. App. 2012) (same); State ex rel. Bronster v. U.S. Steel Corp., 919 P.2d 294, 302 (Haw. 1996), abrogated on other grounds by State ex rel. Shikada v. Bristol-Myers Squibb Co., 526 P.3d 395 (Haw. 2023) (same); Blahd v. Richard B. Smith, Inc., 108

P.3d 996, 1000 (Idaho 2004) (negligence); Myers v. A.O. Smith Harvestore Prods., Inc., 757 P.2d 462, 435 (Idaho Ct. App. 1988) (strict liability); In re Chicago Flood Litig., 680 N.E.2d 265, 274 (Ill. 1997) (strict liability and negligence); Progressive Ins. Co. v. Gen. Motors Corp., 749 N.E.2d 484, 488 (Ind. 2001) (same); Nelson v. Todd’s Ltd., 426 N.W.2d 120, 122-23 (Iowa 1988) (same);

Jordan v. Case Corp., 993 P.2d 650, 652 (Kan. Ct. App. 1999) (same); Young v. D.E.P.E., L.L.C.,

2024 WL 4245064, at *5 (Ky. Ct. App. Sept. 20, 2024) (same); Oceanside at Pine Point Condo.

Owners Ass’n v. Peachtree Doors, Inc., 659 A.2d 267, 270 (Me. 1995) (same); Am. Aerial Servs., Inc. v. Terex USA, LLC, 39 F. Supp.3d 95, 111 (D. Me. 2014) (fraud); Morris v. Osmose Wood Preserving, 667 A.2d 624, 631 (Md. 1995) (strict liability and negligence); FMR Corp. v. Bos. Edison Co., 613 N.E.2d 902, 903 (Mass. 1993) (same); Neibarger v. Univ. Coops., Inc., 486

N.W.2d 612, 615 (Mich. 1992) (same); Shaker v. Champion Petfoods, 625 F. Supp.3d 621, 632 (E.D. Mich. 2022) (fraud); Minn. Stat. § 604.101(3) (strict liability and negligence); Marvin

Lumber & Cedar Co. v. PPG Indus., Inc., 223 F.3d 873, 885 (8th Cir. 2000) (Minn.: fraud); State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 736 So. 2d 384, 387 (Miss. Ct. App. 1999) (strict

liability and negligence); Dannix Painting, LLC v. Sherwin-Williams Co., 732 F.3d 902, 905-06 (8th Cir. 2013) (Mo.: same); Holman v. Ali Indus., LLC, 654 F. Supp.3d 871, 881-82 (W.D. Mo.

1. (unjust enrichment); Lesiak v. C. Vall. Ag Coop., Inc., 808 N.W.2d 67, 83 (Neb. 2012) (strict liability and negligence); Hi-Tech Agg., LLC v. Pavestone, LLC, 555 P.3d 1184, 1190 (Nev. 2024) (same); Lockheed Martin Corp. v. RFI Supply, Inc., 440 F.3d 549, 552 (1st Cir. 2006) (N.H.: same);

Alloway v. Gen. Marine Indus., L.P., 695 A.2d 264, 267 (N.J. 1997) (same); Cincinnati Ins. Co. v.

economic loss doctrine is the boundary between contract law (enforcing the expectancy interests of the parties) and tort law (imposing a duty of reasonable care to encourage citizens to avoid causing physical harm to others). There are, 178 however, limited exceptions to the doctrine in certain jurisdictions, including where the parties lack privity, the product is unreasonably dangerous, the seller knew 179 180 or should have known that its conduct would cause economic harm, or fraud has 181 been adequately alleged. 182

Emerson Climate Techs., Inc., 187 N.Y.S.3d 391, 393 (N.Y. App. Div. 2023) (same); Ellis v. La.- Pac. Corp., 699 F.3d 778, 783 (4th Cir. 2012) (N.C.: same); Steiner v. Ford Motor Co., 606 N.W.2d

881, 884 (N.D. 2000) (same); Ziegelmann v. DaimlerChrysler Corp., 2001 WL 35817235, at *8 (D.N.M. 2001) (N.D.: fraud); Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co., 537 N.E.2d 624, 630 (Ohio 1989) (strict liability and negligence); Waggoner v. Town & Country Mobile Homes,

Inc., 808 P.2d 649, 652 (Okla. 1990) (same); Russell v. Deere & Co., 61 P.3d 955, 958 (Or. Ct.

App. 2003) (same); Holtec Int’l v. ARC Machs., Inc., 492 F. Supp.3d 430, 445 (W.D. Pa. 2020) (strict liability, negligence, and fraud); Isla Nena Air Servs., Inc. v. Cessna Aircraft Co., 449 F.3d 85, 88, 92 (1st Cir. 2006) (P.R.: strict liability and negligence); Sapp v. Ford Motor Co., 687 S.E.2d 47, 49 (S.C. 2009) (same); Jorgensen Farms, Inc. v. Country Pride Corp., 824 N.W.2d 410, 418 (S.D. 2012) (same); Lincoln Gen. Ins. Co. v. Detroit Diesel Corp., 293 S.W.3d 487, 490 (Tenn.

1. (same); Equistar Chem., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 867 (Tex. 2007) (same); Davencourt at Pilgrims Landing Homeowners Ass’n v. Davencourt at Pilgrims Landing, LC, 221

P.3d 234, 242 (Utah 2009) (same); Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 374 S.E.2d 55, 57-58 (Va. 1988) (same); Basham v. Gen. Shale, 377 S.E.2d 830, 834 (W. Va. 1988) (same); Wausau Tile, Inc. v. Cnty. Concrete Corp., 593 N.W.2d 445, 451 (Wis. 1999) (same); Cont’l

Ins. v. Page Eng’g Co., 783 P.2d 641, 647 (Wyo. 1989) (same).

Tiara Condo. Ass’n, Inc., 110 So. 3d at 401; Progressive Ins. Co., 749 N.E.2d at 488; Equistar 178Chemicals, L.P., 240 S.W.3d at 867; Holtec Int'l, 492 F. Supp.3d at 445; Waggoner, 808 P.2d at

652.

Arizona, California, Florida, New Jersey, North Carolina, South Carolina, and Texas. 179 Maryland. 180 Alaska. 181 Arizona, California, Maine, Michigan, Minnesota, and Pennsylvania. 182

JUUL Labs argues that the economic loss doctrine bars the non-Davis plaintiffs’ claims in strict liability, negligence, and gross negligence in 43 states, 183 fraud claims in 7 states, and unjust enrichment claims in Missouri. 184 185 acknowledge the doctrine bars claims in 30 states, but argue that certain 186 recognized exceptions preclude application of the economic loss doctrine in 13 states. 187

1. The Privity Exception Plaintiffs argue in Arizona, California, Florida, New Jersey, North Carolina, South Carolina, and Texas the economic loss doctrine does not apply if the plaintiff lacks privity with the defendant. Plaintiffs contend that because JUUL Labs 188

Alabama, Alaska, Arizona, California, Colorado, Florida, Georgia, Hawaii, Idaho, Illinois, 183 Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming. Alabama, California, Maine, Michigan, Minnesota, North Dakota, and Pennsylvania. 184 OB at 14-50. 185 AB at 33-51. Plaintiffs’ strict liability, negligence, and gross negligence claims are dismissed 186 based on the economic loss doctrine in Alabama, Colorado, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New York, North Dakota, Ohio, Oklahoma, Oregon, Puerto Rico, South Dakota, Tennessee, Utah, Virginia, West Virginia, Wisconsin, and Wyoming. Additionally, plaintiffs’ unjust enrichment claims in Missouri and plaintiffs’ fraud claims in North Dakota are Alaska, Arizona, California, Florida, New Jersey, Maryland, Maine, Michigan, Minnesota, 187 North Carolina, Pennsylvania, South Carolina, and Texas. Southwest Pet Products, Inc. v. Koch Industries, Inc., 89 F. Supp.2d 1115, 1128 (D. Ariz. 2000), 188rev’d in part on other grounds, 32 Fed. Appx. 213 (9th Cir. 2002) (Where there’s no privity of

contract, the economic loss rule does not apply); Veterans Rideshare, Inc. v. Navistar Int’l Corp., 2021 WL 2206479, at *4 (S.D. Cal. June 1, 2021) (“The absence of privity between parties to a lawsuit has been found to preclude the application of the economic loss rule.”); McLeod v. Barber,

asserts that plaintiffs from these states are not in privity for the purposes of dismissal of other claims (implied warranty of merchantability and consumer protection it cannot assert that plaintiffs are in privity to dismiss tort claims under claims), 189 the economic loss doctrine. 190 Rule 8 allows a plaintiff to plead in the alternative and “the Court need not ‘wrestle at the pleading stage how one claim might interact with another.’” When 191 the validity of an element of the claim is in dispute, alternative pleading is permitted. 192 Plaintiffs allege they had “sufficient direct dealings” through authorized distributors or the JUUL Labs website to establish privity, which JUUL Labs 193 challenges. If plaintiffs are later found not to be in privity with JUUL Labs, the

764 So.2d 790, 792 (Fla. App. 2000) (same); SRC Constr. Corp. of Monroe v. Atl. City Hous. Auth., 935 F. Supp.2d 796, 799 (D.N.J. 2013) (holding the economic loss doctrine “only applies to bar certain tort claims between parties to a contract. Stated another way, the absence of a contract between a plaintiff and defendant in a negligence suit precludes the application of the economic loss doctrine.”); Hospira Inc. v. Alphagary Corp., 671 S.E.2d 7, 14 (N.C. Ct. App. 2009) (“[W]here no contractual privity exists between the parties, the rationale for barring recovery under the economic loss rule is not advanced by barring a claim for negligence.”); Crawford Pharmacies v.

Amerisourcebergen Drug Corp., 2008 WL 695895, at *3 (S.D. Tex. Mar. 11, 2008) (“Courts

applying the economic loss rule have consistently held that the rule does not apply in the absence of contractual privity.”). OB at 62-64, 82-88. 189 AB at 34-35, 37, 39, 46, 47, 49-50. 190 Del. Super. Civ. R. 8(e)(2); Dillon Gage Inc. of Dallas v. Umicore Precious Metals USA Inc., 1912025 WL 3779149, at *3 (Del. Super. Dec. 30, 2025) (quoting Julian’s Foods, LLC v. Julian

Bakery, Inc., 2025 WL 1826173, at *8 (Del. Super. June 17, 2025)).

Dillon Gage Inc. of Dallas, 2025 WL 3779149, at *3. 192 Bean Compl. ¶¶ 543, 775, 792; Alvarez Compl. ¶ 350; Arnold Compl. ¶ 628; Akin Compl. ¶ 193 445; Davila Compl. ¶ 560; Hall Compl. ¶ 1401.

exception will apply, allowing them to proceed on their claims for strict liability, negligence, gross negligence, and fraud. If plaintiffs are later found to be in privity, the tort claims will be barred. At this stage, plaintiffs’ alternative pleading is permissible and the Arizona, California, New Jersey, and South Carolina tort claims are not dismissed. JUUL Labs further argues that under Florida, North Carolina, and Texas law, the economic loss doctrine applies where the defendant is the manufacturer or distributor of the product, even if the parties are not in privity. 194 Texas state courts hold that, notwithstanding a party’s privity status, the economic loss doctrine bars all tort claims where no injury to a person or property is alleged and the alleged economic losses arose from the subject of the contract. 195 Federal courts in Texas have generally applied a more lenient approach to the economic loss doctrine, allowing parties who lack privity with one another to assert tort claims for purely economic loss unless the alleged damage was to the subject of

RB at 20, 22. 194 Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 285-90 (Tex. App. 195

1. (holding that absent a contractual relationship or claim of personal injury or property damage, Coastal could not maintain its negligence action); Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494-95 (Tex. 1991) (“When the only loss or damage is to the subject matter of the contract, the plaintiff’s action is ordinarily on the contract.”); White Star Pump Co., LLC v. Alpha

Hunter Drilling, LLC, 2021 WL 5707713, at *4 (Tex. App. Dec. 2, 2021) (“a party states a tort

claim which is not barred by the economic loss rule ‘when the duty allegedly breached is independent of the contractual undertaking and the harm suffered is not merely the economic loss of a contractual benefit.’”) (emphasis in original).

the contract. This Court is inclined to follow Texas state court decisions to resolve 196 this question, as the state courts are clear that economic losses in tort are barred no matter privity status. 197 The Florida Supreme Court clarified and placed limitations on the scope of the economic loss doctrine in Tiara Condo. Ass’n, Inc. v. Marsh & McLennan

Companies, Inc. The court recognized prior over-expansion of the economic loss 198

In Tiara the economic loss doctrine was brought back to its roots, doctrine.199 applying only in products liability cases, and rescinding any exceptions to the application of the doctrine that had been enumerated in prior cases. Therefore, 200

Jackson v. Dole Fresh Fruit Co., 921 F. Supp. 454, 459 (S.D. Tex. 1996) (“if the defendant’s 196 conduct gives rise to liability ‘only because it breaches the parties’ agreement, the plaintiff’s claim ordinarily sounds only in contract.’”); Don Hanvey Oil Tr., Inc. v. Unit Texas Drilling, LLC, 2011 WL 606264 (S.D. Tex. Feb. 16, 2011), aff’d sub nom., In re Reichmann Petroleum Corp., 453 Fed. Appx. 466 (5th Cir. 2011) (applying Tex. Law) (holding that reframing contractual claims as tort claims will not allow the claims to survive for strictly economic losses). Coastal Conduit & Ditching, Inc., 29 S.W.3d at 285-90; Sw. Bell Tel. Co., 809 S.W.2d at 494-19795; White Star Pump Co., LLC, 2021 WL 5707713, at *4. This is further supported because Texas does not require privity between the parties for recovery for breach of the implied warranty of merchantability. U.S. Tire-Tech, Inc. v. Boeran, B.V., 110 S.W.3d 194, 198 (Tex. App. 2003) (citing

Nobility Homes of Tex., Inc. v. Shivers, 557 S.W.2d 77, 81 (Tex. 1977)) (“The Texas Supreme Court

held in 1977 that privity of contract is not required in order to recover purely economic losses from the breach of an implied warranty of merchantability.”). Therefore, plaintiffs’ remedies lay in contract under the breach of implied warranty of merchantability and consumer protection act. 110 So. 3d 399 (Fla. 2013). 198 Id. at 406. The Supreme Court stated in that in Moransais v. Heathman, 744 So. 2d 973 (Fla. 1991999), Comptech Int’l, Inc. v. Milam Commerce Park, Ltd., 753 So. 2d 1219 (Fla. 1999), and

Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So. 2d 532 (Fla. 2004), the court did not go far

enough to limit the doctrine to its original intended purpose, leaving many exceptions to its application. Tiara Condo. Ass’n, Inc., 110 So. 3d at 407 (“Our experience with the economic loss rule over 200 time, which led to the creation of the exceptions to the rule, now demonstrates that expansion of the rule beyond its origins was unwise and unworkable in practice.”).

Florida’s economic loss doctrine bars all products liability actions, with no exceptions. Accordingly, Florida plaintiffs’ claims are limited to their breach of implied warranty and consumer protection claims. 201 The North Carolina plaintiffs argue that the doctrine does not bar tort claims where the parties are not in privity. JUUL Labs responds that North Carolina provides an exception for manufacturers, and tort claims are barred even without privity. JUUL Labs relies on Ellis v. Louisiana-Pacific Corp., which recognized 202 authority from the North Carolina Supreme Court that a plaintiff may maintain a tort action if he lacks privity. In discussing the rationale for the economic loss 203 doctrine, the Ellis court quoted the North Carolina Court of Appeal’s explanation that where the parties’ relationship is governed by a contract (in which they are free to set their rights and liabilities), allowing a party to proceed in tort “would permit the party to ignore and avoid the rights and remedies granted or imposed by the Ellis did not recognize a further exception to the lack of privity parties’ contract.” 204

While privity is required in Florida to establish an implied warranty claim, Florida recognizes 201 a third-party beneficiary exception, which permits claims by reasonably foreseeable users of a product against manufacturers despite absence of direct contact. Fla. Stat. § 672.318. 699 F.3d 778 (4 Cir. 2012). 202 th Id. at 784 (citing Oates v. JAG, Inc., 333 S.E.2d 222, 223-24 (N.C. 1985)) (“an owner of a 203 dwelling house who is not the original purchaser has a cause of action against the builder and general contractor for negligence in the construction of the house, when such negligence results in economic loss or damage to the owner.”). Id. (quoting Moore v. Coachmen Indus., Inc., 129 N.C.App. 389, 499 S.E.2d 772, 780 (1998)). 204

requirement for manufacturers, as JUUL Labs argues. Accordingly, the North Carolina claims are not dismissed.

1. Unreasonably Dangerous Product Exception Maryland recognizes an exception to the economic loss doctrine when the alleged defect makes the product unreasonably dangerous, meaning there exists a 205 clear danger of death or personal injury as a result of the defect. “[C]onditions 206 that present a risk to general health, welfare, or comfort but fall short of presenting a clear danger of death or personal injury will not suffice.” 207 To determine whether the exception applies, Maryland conducts a two-part test that examines “both the nature of the damage threatened and the probability of damage occurring to determine whether the two, viewed together, exhibit a clear, serious, and unreasonable risk of death or personal injury.” A plaintiff may fall 208 within the exception if only one prong is satisfied, so long as, under the facts alleged, both elements are, at a minimum, present.” 209

Lloyd v. General Motors Corp., 916 A.2d 257, 270 (Md. 2007). 205 Id. at 266; Morris, 667 A.2d at 631 (“It is the serious nature of the risk that persuades us to 206 recognize the cause of action in the absence of actual injury.”). Morris, 667 A.2d at 632. 207 Id. at 631-32. The court stated: 208 if the possible injury is extraordinarily severe, i.e., multiple deaths, we do not require the probability of the injury occurring to be as high as we would require if the injury threatened were less severe, i.e. a broken leg or damage to property. Likewise, if the probability of the injury occurring is extraordinarily high, we do not require the injury to be as severe as we would if the probability of injury were lower. Lloyd, 916 A.2d at 262, 270. 209

Cautious that the exception is not “too indeterminate,” Maryland applies the exception narrowly, “to, predominately, those situations in which either liability would inevitably be created by actual physical injury or the manufacturer’s exposure to liability is so great that it cannot be ignored.” 210 JUUL Labs argues that the facts here are more like Morris v. Osmose Wood

Preserving and plaintiffs argue the facts are more aligned with Loyd v. General Motors Corp and U.S. Gypsum Co. v. Mayor & City Council of Baltimore. In Morris,

plaintiffs sought to recover the cost of replacing allegedly defective fire retardant plywood used to construct the roofs of their townhomes. Plaintiffs alleged that in high temperatures, the fire treatment begins to breakdown, which causes the wood to deteriorate and lose strength capacity. Plaintiffs claimed that they were at risk 211 of injuries in two circumstances: (1) because the roofs were unsafe, they threatened the safety of anyone who may need to be on the roof (such as repair personnel), and (2) when the material degrades, the roofs are incapable of supporting any weight (even from a snowfall), thereby risking collapse and the safety of the occupants. 212 No personal injuries or roof collapses had occurred. The court found that 213 plaintiffs’ claims did not “meet the required legal threshold of pleading the existence

Morris, 667 A.2d at 633. 210 Id. at 628. 211 Id. at 633. 212 Id. at 632. 213

of a clear and extreme danger of death or serious personal injury…” as there was only a mere possibility of injury. 214 In Loyd, the class action complaint sought to recover the cost to repair defective vehicle seatbacks, which allegedly collapse in rear-impact collisions, posing a risk of serious bodily injury or death. Although no person in the class had experienced personal injury, plaintiffs alleged that others had suffered paraplegia, 215 quadriplegia, and even death as a result of the defective seats, which was supported at least in part, by complaints filed with the National Highway Traffic Safety Administration. The court found that the exception to the economic loss doctrine 216 applied because of the serious injury at risk, which alone satisfied the test. The court went on to find that the second prong was satisfied, as plaintiffs alleged that thousands of individuals were seriously hurt or killed, thus, the injury was probable. 217 In Gypsum, plaintiffs sought recovery for asbestos remediation in several buildings, but did not assert personal injury claims. The tort claims were not barred by the economic loss doctrine because the possible injury (inhalation of asbestos causing serious diseases) was coupled with a high probability that personal injuries

Id. at 633 (emphasis in original). 214 Lloyd, 916 A.2d at 262. 215 The records showed that no less than 38 reported injuries and 3 fatalities were reported. Id. at 216

270.

Id. 217

would result because everyone in the buildings was at risk of asbestos exposure and related injuries. 218 The Maryland plaintiffs’ claims are more closely aligned to the claims in

Morris. Plaintiffs allege that JUUL Labs’ products create a risk of pulmonary

injuries, cardiovascular issues, and seizures, but do not allege death or other more 219 serious personal injuries. Additionally, plaintiffs do not allege the likelihood of these injuries. Further, plaintiffs have not pointed to a case finding e-cigarettes to be unreasonably dangerous, like asbestos. Accordingly, the Maryland plaintiffs’ strict liability, negligence, and gross negligence claims are barred by the economic loss doctrine and therefore are dismissed.

1. Seller’s Knowledge that the Product will Cause Economic Harm

Under Alaska’s exception to the doctrine, where the seller knew or should have known that economic loss would occur due to its actions, tort claims are not barred. To establish this exception, a plaintiff must show “the defendants knew 220 or reasonably should have foreseen . . . that ascertainable economic damages would

U.S. Gypsum Co. v. Mayor & City Council of Baltimore, 647 A.2d 405, 410-11 (Md. 1994). 218The court relied on a Minnesota Supreme Court case, St. Ltd. Ptsp. v. Carey-Canada, 486 N.W.2d 393 (Minn. 1992), which held that asbestos containing material posed a “substantial and unreasonable risk of personal injury to building users.” U.S. Gypsum Co., 647 A.2d at 411. Ault-Fishburn Compl. ¶¶ 4, 8, 285, 288, 291, 298, 302, 303. 219 Anchorage v. Integrated Concepts & Research Corp., 2015 WL 926219, at *5 (D. Alaska Mar. 220 4, 2015).

ensue from the conduct.” “An identifiable class of plaintiffs must be particularly 221 foreseeable in terms of the type of persons or entities comprising the class, the certainty or predictability of their presence, the approximate numbers of those in the class, as well as the type of economic expectations disrupted.” 222 While plaintiffs allege that they relied on JUUL Labs’ misrepresentations and the risk of personal physical injury was foreseeable, they do not allege that the risk of economic harm was, or should have been, foreseeable. Therefore, the Alaska 223 plaintiffs’ strict liability, negligence, and gross negligence claims are barred by the economic loss doctrine and dismissed.

1. Fraud Exception Arizona, California, Maine, Michigan, Minnesota, and Pennsylvania recognize an exception to the economic loss doctrine for various types of fraud, 224

Id. (quoting Mattingly v. Sheldon Jackson College, 743 P.2d 356, 360 (Alaska 1987)). 221 Id. (quoting Mattingly, 743 P.2d at 361). 222 See Bean Compl. ¶¶ 435, 499-501. 223 Martin v. Weed Inc., 2018 WL 2431837, at *6-7 (D. Ariz. May 30, 2018) (economic loss rule 224does not bar fraud claims); Shah v. General Motors LLC, 2023 WL 8852491, at *7 (N.D. Cal. Dec. 21, 2023) (economic loss rule does not apply to fraudulent omission claims); In re Evenflo Co.,

Inc. Marketing, Sales Pracs. & Prods. Liab. Litig., 707 F. Supp.3d 103, 126 (D. Mass. 2023) (Me.:

economic loss rule does not apply to fraudulent inducement claims); Huron Tool & Eng’g Co. v.

Precision Consulting Servs., Inc., 532 N.W.2d 541, 543-44 (Mich. Ct. App. 1995) (same); Minn.

Stat. Ann. § 604.10(e) (“This section shall not be interpreted to bar tort causes of action based upon fraud or fraudulent or intentional misrepresentation or limit remedies for those actions.”);

Zwiercan v. General Motors Corp., 2002 WL 31053838, at *6 (Pa. Ct. Com. Pl. Sept. 11, 2002)

(economic loss rule does not bar common law fraud claims).

recognizing that a plaintiff does not bargain for the risk of a defendant’s fraudulent conduct. 225 JUUL Labs does not dispute that Arizona, California, Maine, Michigan, and Minnesota recognize a fraud exception. The claims are not dismissed based on this exception. For Arizona and California, JUUL Labs argues that plaintiffs fail to plead fraud with particularity. As discussed below, plaintiffs’ fraud allegations are pled 226 with sufficient particularity. California plaintiffs also argue that the doctrine does not apply where a defendant’s tortious conduct directly targeted these plaintiffs. JUUL Labs argues 227 that plaintiffs did not allege that they were targeted. 228 There must be “more than mere foreseeability” to establish this exception. 229 California plaintiffs allege that JUUL Labs specifically targeted youths through its product design, marketing campaigns, and presentations at schools and youth groups. The pleadings are sufficient to allege targeting of minors. Therefore, JUUL Labs’ motion is denied on this alternative ground.

Martin, 2018 WL 2431837, at *7; Shah, 2023 WL 8852491, at *7; In re Evenflo Co., Inc., 707 225F. Supp.3d at 126; Huron Tool & Eng’g Co., 532 N.W.2d at 543-44; Zwiercan, 2002 WL 31053838, at *6. RB at 18. 226 AB at 35-36. 227 RB at 18-19. 228 In re JUUL Labs, Inc., 497 F. Supp.3d at 661; Bean Compl. ¶¶ 222-31, 233, 237, 247, 238-41, 229

272.

For Pennsylvania plaintiffs, JUUL Labs concedes that their statutory fraud claims (consumer protection claims) are unaffected by the economic loss doctrine, but it argues that common law fraud is barred by the doctrine. Pennsylvania law 230 however, is to the contrary. The Pennsylvania Supreme Court has not directly addressed the issue, but lower Pennsylvania courts have interpreted the supreme court’s prior ruling on the economic loss doctrine to bar negligence claims. and 231 therefore plaintiffs’ common law fraud claims are also not barred by the doctrine. 232

1. Consumer Protection Claims Plaintiffs’ consumer protection claims are grounded in fraud, alleging that the prohibited conduct JUUL Labs engaged in was “fraudulent, deceptive, and

See OB at 43-44. 230 Knight v. Springfield Hyundia, 81 A.3d 940, 951-52 (Pa. Super. 2013) (“Our research reveals, 231 however, that our Supreme Court has defined the economic loss doctrine as providing “no cause of action exists for negligence that results solely in economic damages unaccompanied by physical injury or property damage.”) (emphasis in original). See also, In re Gen. Motors LLC Ignition

Switch Litig., 257 F. Supp.3d 372, 435-36 (S.D.N.Y. 2017) (applying Pa. law) (finding the question

of whether the doctrine bars common law fraud claims a “closer question” but ruling that the claim was not barred, reasoning that the doctrine is premised on the theory that parties to a contract can protect themselves, but “in both theory and practice, it is impracticable, if not impossible, for parties to negotiate terms regarding what happens if one of them is intentionally deceiving the other.”). JUUL Labs cites Earl v. NVR, Inc., 990 F.3d 310 (3d Cir. 2021) (applying Pa. law) for the 232 proposition that there are no exceptions for the economic loss doctrine, even for fraud. RB at 22, citing Earl, 990 A.3d at 313. That portion of the opinion, however, was explaining the court’s previous ruling in Werwinski, which was overturned in Earl. Earl did not address common law fraud claims.

unfair.” Because the claims are grounded in fraud, the pleadings must conform to 233 Rule 9(b)’s particularity requirements. 234

1. Rule 9(b)’s Particularity Requirement JUUL Labs argues, and plaintiffs do not dispute, that the consumer protection claims must be pled with particularity sufficient to satisfy Rule 9(b), which requires alleging “circumstances sufficient to fairly apprise the defendant of the basis for the claim.” “The relevant circumstances are the time, place, contents of the false 235 representation; the facts misrepresented; the identity of the person(s) making the representations; and what that person(s) gained from making the misrepresentations.” And Delaware has “consistently found that the date, place, 236 and time allegations are not required so long as the pleadings put defendants on notice of the misconduct with which they are charged and protect defendants against false charges of immoral or fraudulent behavior.” A plaintiff need not allege 237

See, e.g., Bean Compl. ¶¶ 322, 327, 421, 425, 520, 524, 619, 623, 729, 743, 747. 233 Del. Super. Civ. R. 9(b). 234 Knight Broadband LLC v. Knight, 2022 WL 1788855, at *8 (Del. Super. June 2, 2022) (quoting 235H–M Wexford LLC v. Encorp, Inc., 832 A.2d 129, 145 (Del. Ch. 2003)); Castetter v. Delaware Dept. of Labor, 2002 WL 819244, at *3 (Del. Super. April 30, 2002) (citing Strasburger v. Mars, Inc., 83 A.2d 101, 279 (Del. Super. 1951)).

LVI Gp. Invs., LLC v. NCM Gp. Hldgs., LLC, 2017 WL 1174438, at *4 (Del. Ch. Mar. 29, 2019) 236(quoting Prairie Cap. III, L.P. v. Double E Holding Corp., 132 A.3d 35, 49 (Del. Ch. 2015)). Bamford v. Penfold, L.P., 2020 WL 967942, at *14 (Del. Ch. Feb. 28, 2020) (quoting Yavar 237Rzayev, LLC v. Roffman, 2015 WL 5167930, at *4 (Del. Super. Aug. 31, 205)); LVI Gp. Invs., LLC, 2017 WL 1174438, at *4 (date, time, and place are not required “provided that the pleadings

put the defendant on sufficient notice of the actual misconduct with which they are charged.”); see

also Mosaic US Holdings LLC v. Atlas Tech. Sols., Inc., 2025 WL 483064, at *7 (Del. Super. Jan.

22, 2025).

evidentiary details. Allegations are sufficient when the defendant can admit or 238 deny the facts in a responsive pleading and has sufficient information to prepare a defense and discovery. When evaluating the sufficiency of a fraud claim, the court 239 will employ a “context-driven analysis.” 240 JUUL Labs argues that plaintiffs fail to specify the advertisements or representations each personally viewed, when and where they were viewed, how they were deceptive, and who made the representations. JUUL Labs further 241 argues that plaintiffs fail to show affirmative acts, taken by JUUL Labs, to conceal any information. Plaintiffs argue that JUUL Labs does not, and cannot, claim that 242 it lacks notice of the alleged misconduct or that it is unaware of the nature of plaintiffs’ allegations. 243 The complaints go into detail of how JUUL Labs developed its product to attract teens and ignored risks revealed through its internal studies. Plaintiffs allege that JUUL Labs failed to disclose that its product was extremely potent and highly addictive. And it failed to disclose that JUUL was not a smoking cessation device or that it delivered more nicotine than a pack of combustible cigarettes. Plaintiffs further allege that none of this information was provided in JUUL Labs’ marketing

Bamford, 2020 WL 967942, at *12. 238 Id. at *13. 239 Elburn v. Albanese, 2020 WL 1929169, at *8 n.97 (Del. Ch. Apr. 21, 2020) (collecting cases). 240 OB at 52. 241 Id. at 53. 242 AB at 52. 243

or labeling. JUUL Labs downplayed JUUL’s nicotine content, nicotine delivery profile, and the heightened risks of addiction. Each plaintiff specifies the type of 244 advertisements she/he saw, the dates of purchase and use of the product, and their state of residence. 245 JUUL Labs knows its marketing campaigns and when, where and how it advertised its products. Plaintiffs have sufficiently placed JUUL Labs on notice of the claims asserted and the conduct at issue. The complaints satisfy Rule 9(b)’s particularity requirements and the motion to dismiss on this ground is denied.

1. Exemption for Conduct Regulated Elsewhere The marketing and sale of the JUUL products are regulated at the federal level, and the marketing and sale of nicotine products is regulated in many states. 246 Because of these other regulations, JUUL Labs argues that in Indiana, Maine, Massachusetts, Michigan, Rhode Island, South Dakota, Tennessee, Utah, Virginia, and Wyoming, it is exempt from the consumer protection laws. Specifically, 247 federal law regulates the tobacco industry through the Food and Drug Administration

Bean Compl. ¶¶ 112, 116, 120, 149, 181, 184-89, 201, 209, 227. 244 Bean Compl. ¶¶ 9-97; Davila Compl. ¶¶ 9-100; Accettura Compl. ¶¶ 9-104; Kuxhouse Compl. 245 ¶¶ 9-101; Ault-Fishburn Compl. ¶¶ 9-91; Arnold Compl. ¶¶ 9-96; Alvarez Compl. ¶¶ 9-106; Beck Compl. ¶¶ 9-97; Akin Compl. ¶¶ 9-101; Ayers Compl. ¶¶ 9-73; Hall Compl. ¶¶ 9-67; Davis Compl. ¶¶ 9-68. OB at 54-55. 246 Id. at 54. 247

(the “FDA”), which has promulgated rules for the packaging, labeling, 248 advertising, and promotion of tobacco products, including electronic nicotine delivery systems. Indiana, Michigan, Rhode Island, South Dakota, Tennessee, 249 Utah, Virginia, and Wyoming also regulate the sale and distribution of nicotine within their state’s boarders. JUUL Labs argues that these regulations take the 250 consumer protection claims out of the scope of each state’s act. 251 The state consumer protection statutes exempt conduct that is “required, permitted, or authorized” by the laws of the state or United States, from liability under the acts. The burden is on the proponent of the exemption to prove the 252 conduct is exempt. When a court evaluates a regulatory exemption the “focus 253

See 21 U.S.C. § 387a; 21 C.F.R. § 1100.1 (2023). 248 See 21 U.S.C. § 387c(a)(1); 21 U.S.C. § 387f; 21 C.F.R. § 1100.1 (2023). 249 See Ind. Code § 7.1-7-5-1.1; Mich. Comp. Laws §§ 722.641 et seq.; 11 R.I. Gen. Laws §§ 11-2509-13 et seq.; S.D. Codified Laws §§ 34-46 et seq.; Tenn. Code §§ 39-17-1501 et seq.; Utah Code § 26B-7-505; Utah Code § 76-10-105.1; Va. Code § 58.1-1021.07; Wyo. Stat. §§ 14-3- 301 et seq.; Wyo. Stat. §§ 35-7-2001 et seq. OB at 54-55. 251 Ind. Code § 24-5-0.5-6 (“required or expressly permitted”); Me. Rev. Stat. tit. 5, § 208 (1) 252 (“authorized, permitted or required”); Mass. Gen. Laws ch. 93A, § 3 (“transactions or actions otherwise permitted”); Mich. Comp. Laws § 445.904(1)(a) (“transaction or conduct specifically authorized”); R.I. Gen. Laws § 6-13.1-4(a) (“actions or transactions permitted”); S.D. Codified Laws § 37-24-10 (“acts or practices required or permitted”); Tenn. Code § 47-18-111(a)(1) (“[a]cts or transactions required or specifically authorized”); Utah Code § 13-11-22(a) (“required or specifically permitted”); Va. Code § 59.1-199(1) (“[a]ny aspect of a consumer transaction which aspect is authorized”); Wyo. Stat. § 40-12-110(a)(i) (“[a]cts or practices required or permitted”). In re Juul Labs, Inc., Mktg Sales Pracs. and Prods. Liab. Litig., 2022 WL 1955678, at *8 (N.D. 253Cal. Jan. 28, 2022) (citing Liss v. Lewiston-Richards, Inc., 478 Mich. 203, 208 (2007)).

should be directed at whether ‘the transaction at issue, not the alleged misconduct, is specifically authorized.’” 254 Indiana regulates the sale of e-liquid and specifies that a product shall not contain “more than seventy-five (75) milligrams per milliliter of nicotine.” It also 255 dictates that “[a] manufacturer, distributor, or retailer may not market e-liquid as a modified risk tobacco product . . . that has not been designed as a modified risk tobacco product by the federal Food and Drug Administration.” A “modified risk 256 tobacco product” is “any tobacco product that is sold or distributed to reduce harm or the risk of tobacco related disease associated with commercially marketed tobacco products.” 257 Utah enacted requirements for labeling, nicotine content, product packaging, and product quality. Utah requires that: electronic cigarette devices comply with 258 federal law (including the minimum nicotine warning); the nicotine content shall not

Id. at *8 (N.D. Cal. Jan. 28, 2022) (quoting Smith v. Globe Life Ins. Co., 460 Mich. 446, 464 254(1999)); Skinner v. Steele, 730 S.W.2d 335, 337 (Tenn. Ct. App. 1987) (the exemption rule “is intended to avoid conflict between laws, not to exclude from the Act’s coverage every activity that is authorized or regulated by another statute or agency.”); Naranjo v. Cherrington Firm, LLC, 285

1. Supp.3d 1242, 1246 (D. Utah 2018) (the exemption “would apply only if Cherrington’s actions were required or specifically permitted by federal or state law.”). Ind. Code § 7.1-7-5-1.1(e). 255 Ind. Code § 7.1-7-5-1.1(j). 256 Ind. Code § 7.1-7-2-17.5. 257 Utah Admin. Code r. R384-415-3 (labeling); Utah Admin. Code r. R384-415-4 (prohibited 258 sales); Utah Admin. Code r. R384-415-5 (nicotine content); Utah Admin. Code r. R384-415-6 (packaging); Utah Admin. Code r. R384-415-7 (product quality).

exceed 59mg/mL; and labels not create the impression that the product contains additives for health, energy, or vitality. 259 Virginia requires that a retail seller of nicotine products verify the customer’s age before selling or furnishing a nicotine product. 260 Michigan, Rhode Island, South Dakota, Tennessee, and Wyoming prohibit the sale of tobacco and vapor products to children. 261 Plaintiffs argue that their claims are not exempt because JUUL Labs has not proven that the specific activities underlying their consumer protection claims were “required, permitted, or authorized” by state or federal laws. 262 This issue was addressed under the Michigan Consumer Protection Act in In

re Juul Labs, Inc., Mktg. Sales Practices & Products Liab. Litig. There, plaintiffs 263

alleged that JUUL Labs specifically targeted communities in Indian tribes with its highly addictive and damaging products through the use of deceptive and misleading sales and marketing programs. Based on the “breadth of the scope of the 264

Utah Admin. Code r. R384-415-3 (labeling); Utah Admin. Code r. R384-415-4 (prohibited 259 sales); Utah Admin. Code r. R384-415-5 (nicotine content); Utah Admin. Code r. R384-415-6 (packaging); Utah Admin. Code r. R384-415-7 (product quality). Va. Code § 58.1-1021.07. 260 Mich. Comp. Laws §§ 722.641 et seq; 11 R.I. Gen. Laws §§ 11-9-13 et seq.; S.D. Codified 261Laws §§ 34-46 et seq.; Tenn. Code §§ 39-17-1501 et seq.; Wyo. Stat. § 14-3-301. AB at 55-58. 262 In re Juul Labs, Inc., 2022 WL 1955678, at *8-10; see also Flanagan v. Altria Grp., Inc., 2005 263 WL 2769010, at *7 (E.D. Mich. Oct. 25, 2005) (dismissing MCPA claim because comprehensive federal programs regulate cigarette labeling and advertising). In re Juul Labs, Inc., 2022 WL 1955678, at *2. 264

exemption as explained by the Michigan Supreme Court and interpreted by courts in Michigan,” the court found that plaintiffs’ deceptive and misleading marketing claims fell within the exemption. 265 In contrast, in Aspinall v. Phillip Morris, Inc., the Massachusetts Supreme Court held that defendants failed to meet their exceedingly high burden to show that they were given explicit permission to use descriptors such as “light” in marketing their cigarettes and therefore, the exemption did not apply. Defendants argued 266 that through consent decrees with other cigarette companies and the Federal Trade Commission’s failure to take action against cigarette companies that put descriptors on their packages, it “condoned,” “authorized,” and “permitted” the use of the descriptors “lights” and “lowered tar.” The court stated that inferences cannot be 267 the basis for proving an exemption applies. 268

Id. at *10. 265 Aspinall v. Philip Morris, Inc., 902 N.E.2d 421, 424-25 (Mass. 2009) (“a defendant must show 266 more than the mere existence of a related or even overlapping regulatory scheme that covers the transaction. Rather, a defendant must show that such scheme affirmatively permits the practice which is alleged to be unfair or deceptive.”) (emphasis in original). Id. at 424. 267 Id. at 425-26. 268

Utah, Maine, Massachusetts, Tennessee, Virginia, South Dakota, and 269 Wyoming narrowly define the scope of their consumer protection exemptions. 270 The exemption in these states does not apply when an activity is merely regulated by another body of law; it only applies when the alleged wrongful conduct is specifically required or permitted by state or federal law. Whereas Indiana, 271 Michigan, and Rhode Island consumer protection exemptions provide for a broad

While courts in South Dakota have not addressed the scope of its consumer protection 269 exemption, the act’s language closely aligns with the states that draw a narrow scope of the exemption. South Dakota exempts “acts or practices required or permitted” by another body of law. S.D. Codified Laws § 37-24-10. This interpretation is consistent with the consumer protection act as a whole because it provides cumulative, rather than exclusive remedies alongside regulatory schemes. S.D. Codified Laws § 37-24-7 (stating that deceptive practices are “in addition to and do not limit” other causes of action); S.D. Codified Laws § 37-24-32 (clarifying that private remedies “shall in no way affect causes of action arising under other laws”). Patane v. Nestle Waters N. Am., Inc., 478 F. Supp.3d 318, 332-36, 338-40 (D. Conn. 2020) 270(discussing consumer protection exemptions in Maine and Massachusetts); WyoLaw, LLC v. Office

of Attorney Gen., Consumer Prot. Unit, 486 P.3d 964, 975-77 (Wyo. 2021); Skinner, 730 S.W.2d

at 337-38; Naranjo, 285 F. Supp.3d at 1244-46; Garvin v. LBAS, Inc., 2025 WL 2956445, at *5-6 (Va. Ct. App. Oct. 21, 2025); S.D. Codified Laws § 37-24-10 (applies to acts or practices that are required or permitted). See Patane, 478 F. Supp.3d at 332-36, 338-40 (selling Poland Spring water as “spring water” 271 was not exempted even though the water industry is regulated through licensure or that bottled water “must conform with the legal standard of identity for spring water”); WyoLaw, LLC, 486 P.3d at 975-77 (“Section 110(a)(i) exemption does no more than defer to contradictory laws that permit or require a specific act or practice that might otherwise be unlawful under the Act.”);

Skinner, 730 S.W.2d at 337-38 (the federal antitrust laws will not exempt all conduct in connection

with the sale of insurance and annuities just because it “specifically authorizes” the sale of insurance and annuities); Naranjo, 285 F. Supp.3d at 1244-46 (“the UCSPA does not apply when state or federal law ‘require[s] or specifically permit[s]’ the alleged wrongful conduct. Here, Naranjo claims that Cherrington violated both federal and state law. Section 13–11– 22(1)(a) would apply only if Cherrington’s actions were required or specifically permitted by federal or state law.”) (emphasis in original); Garvin, 2025 WL 2956445, at *5-6 (“Section 59.1- 199(1) ‘does not exempt entire industries from the Act, rather it exempts claims arising from certain transactions that are already covered by a Virginia or federal law.’”).

scope of the exemption. In these states, the courts look at the general activity 272 complained of, rather than the specific alleged wrongful activity. 273 The general activity plaintiffs complain of is the marketing of the JUUL products; more specifically, plaintiffs complain that JUUL Labs made misrepresentations and fraudulent statements in the marketing of the JUUL products. Federal law permits the advertising and promotion of cigarettes, with substantial limitations. Federal law and the state laws referenced above, however, do not: explicitly permit or authorize the marketing of a cigarette device as a smoking cessation device when not authorized to do so, explicitly authorize the sale or advertisement of cigarette products to adolescents, and authorize false statements as to the amount of nicotine contained within a product. Utah, Maine, Massachusetts, Tennessee, Virginia, South Dakota, and Wyoming law do not explicitly authorize or require the alleged conduct and therefore, the vast regulations in the cigarette industry do not exempt JUUL Labs

Koehlinger v. State Lottery Comm’n of Ind., 933 N.E.2d 534, 542 (Ind. Ct. App. 2010); Patane, 272478 F. Supp.3d at 352-53 (discussing Rhode Island’s act); In re Juul Labs, Inc., 2022 WL 1955678, at *8-10 (applying Mich. law); Flanagan, 2005 WL 2769010, at *7. Koehlinger, 933 N.E.2d at 542 (“The DCSA is to be ‘liberally construed and applied to promote 273its purposes and policies . . . .’”); Patane, 478 F. Supp.3d at 352-53 (“the exemption applie[s] to all activities subject to monitoring by governmental agencies, not simply activities permitted under state or federal law.”); In re Juul Labs, Inc., 2022 WL 1955678, at *8-10 (applying Mich. law) (“a court’s focus should be directed at whether ‘the transaction at issue, not the alleged misconduct, is specifically authorized.’”); Flanagan, 2005 WL 2769010, at *7 (“Defendant’s ‘general transaction’ was the labeling and advertising of its cigarettes. The FCLAA ‘establish[es] a comprehensive

Federal program to deal with cigarette labeling and advertising ....’”) (emphasis in original).

from the scope of the consumer protection statutes. However, Indiana, Michigan, 274 and Rhode Island broadly apply their consumer protection exemption to cover general activities subject to monitoring or regulation, in general, by state or federal law. Therefore, these claims are dismissed as being exempt under the states’ consumer protection statutes. 275

1. Pre-suit Notice Some state’s consumer protection statute requires pre-suit notice to the defendant in certain circumstances. Typically, the notice must be in writing and 276 detail the alleged violations. JUUL Labs argues that plaintiffs fail to allege that 277 they provided the required pre-suit notice in Alabama, California, Georgia, Maine, Massachusetts, and Texas. 278 Under Alabama and Georgia law, pre-suit notice is not required if the defendant does not maintain a place of business or keep assets in the state. 279

Patane, 478 F. Supp.3d at 332-36, 338-40; WyoLaw, LLC, 486 P.3d at 975-77; Skinner, 730 274S.W.2d at 337-38; Naranjo, 285 F. Supp.3d at 1244-46; Garvin, 2025 WL 2956445, at *5-6; S.D. Codified Laws § 37-24-10 (applies to acts or practices that are required or permitted). Koehlinger, 933 N.E.2d at 542; Patane, 478 F. Supp.3d at 352-53; In re Juul Labs, Inc., 2022 275WL 1955678, at *8-10; Flanagan, 2005 WL 2769010, at *7. See Ala. Code § 8-19-10(e); Cal. Civ. Code § 1782(a); Ga. Code § 10-1-399(b); Me. Rev. Stat. 276 tit. 5, § 213(1-A); Mass. Gen. Laws ch. 93A, § 9(3); Tex. Bus. & Com. Code § 17.505(a). See Ala. Code § 8-19-10(e); Cal. Civ. Code § 1782(a); Ga. Code § 10-1-399(b); Me. Rev. Stat. 277 tit. 5, § 213(1-A); Mass. Gen. Laws ch. 93A, § 9(3); Tex. Bus. & Com. Code § 17.505(a). OB at 57-58. 278 Ala. Code § 8-19-10(e) and Ga. Code Ann. § 10-1-399(b): “[t]he demand requirements of this 279 subsection shall not apply if the prospective respondent does not maintain a place of business or does not keep assets within the state[.]”

Plaintiffs argue that they were not required to send pre-suit notice in these states. 280 JUUL Labs does not contest that these exceptions apply. Therefore, the Alabama and Georgia plaintiffs are not required to make a pre-suit demand. 281 California plaintiffs did allege that each plaintiff sent pre-suit demands as required by Cal. Civ. Code § 1782(a). JUUL Labs does not contest the sufficiency 282 of this allegation. Maine and Massachusetts plaintiffs admit that pre-suit notice was not alleged in their respective complaints. In both states, courts allow a plaintiff to cure the 283 deficiency and amend the complaint instead of dismissal. 284 Texas plaintiffs argue that JUUL Labs waived its objection to lack of notice 285 because it failed to timely request an abatement of the case due to lack of pre-suit notice. “A defendant who fails to make a timely request for abatement must be 286

AB at 58-59. 280 RB at 24. 281 AB at 59. “Each Plaintiff sent a pre-suit notice letter that complied with the requirements of 282 Cal. CCP § 1782 more than 30 days before filing this lawsuit.” Bean Compl. ¶ 748; Davis Compl. ¶ 424. AB at 59-61. 283 In re New Motor Vehicles Canadian Exp. Antitrust Litig., 350 F. Supp.2d 160, 186 (D. Me. 284

1. (failure to comply with pre-suit notice does not lead to dismissal, instead the objecting party may request cessation of the litigation for 30 days to correct the error, or the court may deny attorney’s fees and costs at the conclusion of litigation); Rodi v. S. New England Sch. Of Law, 389 F.3d 5, 19 (1st Cir. 2004) (A party may cure failure to provide pre-suit notice by amending its complaint when, otherwise, a plaintiff has stated “a colorable claim for relief under Chapter 93A.”). AB at 61. 285 See Hines v. Hash, 843 S.W.2d 464, 468-69 (Tex. 1992) (if a plaintiff fails to meet the pre-suit 286 notice requirements, a defendant may request abatement of the case, for 60 days, with the filing of an answer or shortly after).

considered to have waived his objection to the lack of notice.” JUUL Labs does 287 not contest that it failed to timely object to the lack of notice. JUUL Labs’ motion to dismiss the Alabama, Georgia, California, and Texas claims is denied. The claims under Maine and Massachusetts are abated for 60 days to allow plaintiffs to cure the deficiency.

1. Damages under Georgia and Minnesota Statutes JUUL Labs argues, and plaintiffs do not contest, that Georgia’s consumer protection act does not authorize recovery of damages. Thus, these claims are 288 289 Minnesota plaintiffs also concede that damages are not recoverable under the Minnesota Consumer Protection Act, however, they argue that they do not assert While the headings in the Davis and Arnold complaints identify such claims.290 Minn. Stat. § 325D.43-.48 (which does not authorize damages), the substance of the allegations cite to Minn. Stat. § 325F.69(1) and § 8.31(3a), which permit recovery 291

Hines, 843 S.W.2d at 469. 287 OB at 58-59. 288 Georgia plaintiffs argue that they do not assert claims under the Uniform Deceptive Trade 289Practices Act, however, this claim is asserted in the Davis and Davila complaints. See, e.g., Davis Compl. ¶¶ 743-56; Davila Compl. ¶¶ 627-40. AB at 62; Minn. Stat. § 325D.43-.48. 290 See, e.g., Davis Compl. ¶¶ 1544-56; Arnold Compl. ¶¶ 407-19. 291

of damages. Therefore, JUUL Labs’ motion to dismiss the Minnesota consumer protection claims is denied. 292

1. JUUL Labs’ Contact with Delaware and New Hampshire Both Delaware and New Hampshire consumer protection statutes require the alleged improper conduct occur within the state’s borders. JUUL Labs argues that 293 Delaware and New Hampshire plaintiffs fail to allege that JUUL Labs acted within those states’ borders. Plaintiffs respond that this pleading requirement is satisfied 294 by the allegations that these plaintiffs bought the JUUL products and saw the misleading labels within their home states. JUUL Labs did not respond to this 295 argument. Drawing all reasonable inferences in plaintiffs’ favor, the complaints sufficiently allege conduct within these states and these claims are not dismissed on this ground.

See Kramer v. W. Pac. Indus., Inc., 546 A.2d 348, 353 (Del. 1988) (“In determining the nature 292 of the wrong alleged, a court must look to ‘the body of the complaint, not to the plaintiff's designation or stated intention.’”). 6 Del. C. § 2512 (“The purpose of this subchapter shall be to protect consumers and legitimate 293 business enterprises from unfair or deceptive merchandising practices in the conduct of any trade or commerce in part or wholly within this State.”); N.H. Rev. Stat. Ann. § 358-A:2 (“It shall be unlawful for any person to use any unfair method of competition or any unfair or deceptive act or practice in the conduct of any trade or commerce within this state.”). OB at 59-60. 294 Davis Compl. ¶ 19 (“Plaintiff . . . is a citizen of Delaware who purchased JUUL Products in 295 Delaware.”); Hall Compl. ¶¶ 29-36 (“Plaintiff . . . is a citizen of New Hampshire who purchased JUUL Products in New Hampshire.”).

1. Ascertainable Loss JUUL Labs argues plaintiffs from Idaho, Missouri, and New Jersey have not specifically pled an “ascertainable loss” under their state’s statute, as they purportedly assert only a diminution in value. Plaintiffs contend that the 296 allegations that they “would not have purchased the JUUL Products or would have paid substantially less for them” is sufficient to establish an ascertainable loss and specificity (particularity) is not required. 297 Idaho, Missouri, and New Jersey require a plaintiff plead an ascertainable loss to sufficiently plead a claim under the respective consumer protection statute. 298 These states apply the “benefit of the bargain” rule to determine whether a plaintiff suffered an ascertainable loss. This measure of damages applies when the plaintiff 299 sues for “damages on account of the quality of the property he bought.” 300

OB at 60. 296 AB at 64. 297 Anderson v. Interpath Lab., Inc., 2026 WL 177894, at *4-5 (D. Idaho Jan. 22, 2026); Hennessey 298v. Gap, Inc., 86 F.4 Cir. 2023) (applying Mo. law); Talalai v. Cooper Trire & 823, 827-28 (8 th thRubber Co., 823 A.2d 888, 897 (N.J. Super. 2001).

Hennessey, 86 F.4 at 827-28 (applying Mo. law) (“The ‘benefit of the bargain rule’ awards a 299 th prevailing party the difference between the value of the product as represented and the actual value of the product as received.”) (citation omitted); Green v. Green Mountain Coffee Roasters, Inc., 279 F.R.D. 275, 281 (D.N.J. 2011) (quoting Bosland v. Warnock Dodge, Inc., 964 A.2d 741, 750 (N.J. 2009)) (ascertainable loss is one equivalent to “any lost ‘benefit of [the] bargain’”). Hennessey, 86 F.4 at 828 (applying Mo. law); Litster Frost Injury Lawyers, PLLC v. Idaho 300 thInjury Law Grp., PLLC, 518 P.3d 1, 13 (Idaho 2022), as amended (Sept. 2, 2022) (quoting Idaho

Admin. Code r. 04.02.01.020.05) (“An ‘ascertainable loss of money’ under Idaho Code § 48- 608(1) is ‘[a]ny deprivation” of money that “is capable of being discovered, observed, or established.’”).

Plaintiffs have sufficiently pled ascertainable loss. As described above, the complaints provide factual detail to support the allegation that the JUUL products were not as advertised. Accordingly, they have sufficiently pled that they did not receive the benefit of their bargain. 301

1. Lack of Privity JUUL Labs argues that the Arizona, Idaho, and Kentucky consumer protection statutes require privity to state a claim. 302 For Arizona, plaintiffs argue that Watts v. Medicis Pharmaceutical Corp. 303

makes clear that the Arizona Consumer Fraud Act does not require privity. JUUL Labs does not dispute this proposition. Thus, its motion is denied. The Idaho Supreme Court ruled in Taylor v. McNicols that a plaintiff “must have been in a contractual relationship with the party alleged to have acted unfairly or deceptively.” Subsequently, Idaho state courts and, almost without exception, 304

JUUL Labs argues that plaintiffs are required to plead ascertainable loss with specificity. OB 301 at 60-61. As noted, a plaintiff must plead facts to support the contention that she suffered an ascertainable loss, but JUUL Labs has not shown that a plaintiff must plead damages with specificity. For the Missouri claims, JUUL Labs relies on White v. Walmart, 2024 WL 4542259, at *6 (E.D. Mo. Oct. 22, 2024), for the proposition that a plaintiff must plead the actual value and the value of what was received to sufficiently plead ascertainable loss. The White court found plaintiff’s allegation to be conclusory, failing to provide factual detail to determine the difference in value. The lack of a purchase price was a factor in the court’s conclusion. This Court finds that failure to plead a purchase price or the “actual” value, alone will not defeat the claim. The Missouri Court of Appeals found that an allegation that the product was worth less than the product as advertised was sufficient. Murphy v. Stonewall Kitchen, LLC, 503 S.W.3d 308, 313-14 (Mo. App. 2016). The Court finds Murphy persuasive. OB at 62. 302 Watts v. Medicis Pharm. Corp., 365 P.3d 944 (Ariz. 2016). 303 Taylor v. McNichols, 243 P.3d 642, 662 (Idaho 2010). 304

Idaho federal courts, have consistently ruled that privity is required. Some federal 305 courts applying Idaho law have found that direct or “immediate privity” is not necessary, reasoning that Taylor did not address whether indirect privity would be sufficient. The split of authority will need to be addressed by the Idaho Supreme 306 Court. For now, this Court will follow the weight of Idaho state and federal courts. Because privity is required, the Idaho claims are dismissed. Kentucky plaintiffs acknowledge that privity is required, but argue that dismissal is not warranted because the manufacturer extends an express warranty. 307 Kentucky plaintiffs, however, do not allege that JUUL Labs made any express warranties. Accordingly, Kentucky plaintiffs’ consumer protection act claims are 308

1. Alabama Election of Claims The Alabama Consumer Protection Act provides for an election of remedies. It states that “[a]n election to pursue the civil remedies prescribed in this

Rouse v. H.B., 2024 WL 4528872, at *4-5 (D. Minn. Oct. 18, 2024) (applying Idaho law) 305(collecting cases); In re Duramax Diesel Litig., 2018 WL 3647047, at *8-9 (E.D. Mich. Aug. 1,

1. (applying Idaho law) (collecting cases) (“the Court believes that the Idaho Supreme Court has unambiguously interpreted the ICPA as requiring direct contractual privity.”). In re Chrysler-Dodge-Jeep Ecodiesel Mktg., Sales Pracs., & Prods. Liab. Litig., 295 F. Supp.3d 306 927, 1021-22 (N.D. Cal. 2018) (applying Idaho law). Naiser v. Unilever U.S., Inc., 975 F. Supp.2d 727, 743 (W.D. Ky. 2013) (citing Ford Motor Co. 307v. Mayes, 575 S.W.2d 480 (Ky. App. 1978)) (holding when express warranties are made for the

customers benefit, privity will not stand in the way of a consumer protection claim). Plaintiffs point to Ault-Fishburn Compl. ¶433. That paragraph, however, asserts third-party 308 beneficiary status of implied warranties.

chapter shall exclude and be a surrender of all other rights and remedies available at

common law, … for fraud, arising out of any act, occurrence or transaction

actionable under this chapter.” JUUL Labs argues that plaintiffs are precluded 309 from asserting this statutory claim because they assert a common law fraud claim. 310 Citing other cases in the Eleventh Circuit, plaintiffs counter that they are permitted to plead the claims in the alternative. 311 There is a split among the District Courts in the Eleventh Circuit over whether Holmes ruled they cannot because these claims may be plead in the alternative. 312 while under Federal Rule of Civil Procedure 8(d) a party may plead in the alternative, “the plain text of the ADTPA specifically and unambiguously makes, as an essential element of the claim, the statutory remedy exclusive of other remedies available under Alabama Law.” The court reasoned that to allow a plaintiff to plead both 313 claims “would enlarge the substantive right and remedy of the ADTPA[.]” 314 Relying on Rule 8(d), the Morris court found that “although the plain language of the savings clause requires a plaintiff to elect one or the other remedy, it does not

Ala. Code § 8-19-15 (emphasis added). 309 OB at 64-65 (citing Holmes v. Behr Process Corp., 2015 WL 7252662, at *3 (N.D. Ala. Nov. 310 17, 2015)). AB at 69-71 (citing Morris v. Walmart., 2020 WL 470287, at *6 (N.D. Ala. Jan. 29, 2020)). 311 See Holmes, 2015 WL 7252662, at *2; Morris, 2020 WL 470287, at *6. 312 Holmes, 2015 WL 7252662, at *3. 313 Id. 314

specify when in the proceedings the plaintiff must do so.” Thus, the claims were 315 not dismissed on this ground. The Court finds Morris persuasive. Delaware Superior Court Rule 8(e)(2) 316 permits a plaintiff to plead claims in the alternative, even inconsistent claims. The 317 Alabama plaintiffs cannot recover under both the statute and common law fraud claim. However, at this stage, they are permitted to plead both.

1. Pleading Actual Damages JUUL Labs argues that plaintiffs fail to plead actual damages as required by the Arkansas Deceptive Trade Practices Act. Under the act, a plaintiff must plead “an actual financial loss.” An actual financial loss is “an ascertainable amount of 318 money that is equal to the difference between the amount paid by a person for goods or services and the actual market value of the goods or services provided to a person.” 319

Morris, 2020 WL 470287, at *6 (collecting cases) (emphasis in original) (citing In re Gen. 315Motors LLC Ignition Switch Litig., 257 F. Supp.3d at 405) (“In light of this omission from the

savings clause and the lack of ambiguity inherent in Rule 8(d), this court will permit Morris to proceed alternatively with her ADTPA claims and her common law claims.”). See also McCabe v. Ford Motor Co., 774 F. Supp.3d 349 (D. Mass. 2025) (applying Alabama 316 law) (allowing a plaintiff to plead both causes of action “does not determine the outcome of the case, threaten neglect of the state’s remedial limitation, or have any impact on the ultimate rights afforded under the statute.”). Del. Super. Civ. R. 8(e)(2). 317 Ark. Code § 4-88-113(f)(2). 318 Ark. Code § 4-88-102(1). 319

Relying on Wallis v. Ford Motor Co., JUUL Labs argues plaintiffs only 320 In Wallis, allege diminution in value, which is insufficient to state a claim. 321 plaintiff asserted a claim based on the Ford vehicles having a known rollover risk. Plaintiffs did not suffer a rollover or other malfunction. Rather, they sought to recover the loss in value that resulted from the stigma of the vehicles’ known risk. 322 Because plaintiffs could not allege that they did not receive what they bargained for, they did not assert an actual injury and the claims were dismissed. 323 Unlike Wallis, plaintiffs allege actual damages – that is, the product was not what was promised and they did not receive what they bargained for. 324 allege JUUL products were not smoking cessation devices, contained more nicotine than represented, and they were not a reasonable alternative to traditional cigarettes. The claims are not dismissed on this ground. 325

Wallis v. Ford Motor Co., 208 S.W.3d 153 (Ark. 2005). 320 OB at 65-67. 321 Wallis, 208 S.W.3d at 154-55. 322 Id. at 162; Parnell v. FanDuel Inc., 591 S.W.3d 315, 319 (Ark. 2019) (“In Wallis, the plaintiff 323 could not prove that he did not receive the vehicle he bargained for because the vehicle had not malfunctioned.”); M.S. Wholesale Plumbing, Inc. v. Univ. Sports Publ’ns Co., Inc., 2008 WL 90022, (E.D. Ark. Jan. 7, 2008) (plaintiff pled actual damage where it pled it paid for a product that was not what defendant represented it to be). Wallis, 208 S.W.3d at 154, 156. 324 See Bean Compl. ¶¶ 616, 620. 325

1. Georgia’s Due Diligence Requirement
   Georgia’s statute requires a plaintiff to exercise due diligence when the alleged violation is a misrepresentation. JUUL Labs argues, and plaintiffs do not dispute, 326 that the complaint does not allege due diligence. To the extent the Georgia claims 327 are based on misrepresentations, they are dismissed. To the extent the claims are based on omissions, due diligence is not required and the claims are not dismissed. 328

2. Uncured/Incurable Acts
   The Indiana Deceptive Consumers Sales Act provides for two types of actionable deceptive acts: uncured and incurable. An uncured deceptive act is one 329 where the consumer was damaged and gave notice to the supplier, but the supplier failed to cure. An incurable deceptive act is where the “supplier as part of a 330 scheme, artifice, or device . . . intent[s] to defraud or mislead.” Because an 331 incurable deceptive act requires fraud, it must be pled with particularity. 332 JUUL Labs argues that the Indiana plaintiffs fail to allege uncured or incurable deceptive acts. Indiana plaintiffs respond that they did provide notice, but they 333

OB at 67. 326 AB at 74. 327 JUUL Labs does not contest this point. 328 James v. S. Univ., LLC, 2018 WL 11448005, at *1 (N.D. Ind. Mar. 13, 2018). 329 Ind. Code § 24-5-0.5-2(7). 330 Ind. Code § 24-5-0.5-2(8). 331 James, 2018 WL 11448005, at *1. 332 OB at 68. 333

admit they did not plead notice. Thus, the uncured deceptive act claims are 334 dismissed. Indiana plaintiffs have, however, alleged an incurable deceptive act because they have adequately alleged fraud with sufficient particularity under Rule 9(b) as discussed in section IV(C)(3)(a). 335 JUUL Labs makes the same argument on an uncured deceptive act under Wyoming law, which also requires notice. Wyoming plaintiffs fail to plead 336 337 notice and therefore, their uncured deceptive act claims are dismissed.

1. Failure to Engage in Informal Dispute Resolution JUUL Labs argues, and Mississippi plaintiffs concede, that plaintiffs fail to allege the statutorily required attempt to resolve any consumer protection claim through an informal dispute settlement program. Therefore, the Mississippi 338 consumer protection claims are dismissed.

AB at 74. 334 Del. Super. Civ. R. 9(b). 335 OB at 71. 336 Wyo. Stat. § 40-12-102(a)(ix); Broderick v. Dairyland Ins. Co., 270 P.3d 684, 692 (Wyo. 2012) 337 (holding appellant had no valid cause of action for an uncured deceptive trade practice under the act due to appellant’s failure to provide notice). OB at 69-70; AB at 75; Taylor v. S. Farm Bureau Cas. Co., 954 So. 2d 1045, 1049 (Miss. Ct. 338 App. 2007) (holding plaintiff fails to state a Mississippi Consumer Protection Act claim where it fails to allege compliance with statutory informal dispute settlement program requirement).

1. No Private Right of Action under Puerto Rico law
   JUUL Labs argues, and Puerto Rico plaintiffs concede, there is no private right of action under the Puerto Rico consumer protection statute. Therefore, the Puerto Rico consumer protection claims are dismissed. 339

2. Punitive Damages, Treble Damages, and Attorneys’ Fees
   JUUL Labs argues that certain states do not permit recovery of punitive damages, Arizona, Delaware, and Wyoming do not permit an award of attorneys’ 340 fees, and Utah does not permit treble damages. Plaintiffs concede that where 341 342 punitive damages are alleged in these states, they are barred. Plaintiffs do not 343 contest JUUL Labs’ argument that attorneys’ fees and treble damages are not recoverable under the applicable acts. Therefore, the motion is granted except for

OB at 70-71; AB at 75; Muns. of Bayamon v. Exxon Mobil Corp., 2025 WL 600430, at *39 339 (D.P.R. Feb. 20, 2025) (“Puerto Rico does not recognize ‘common law consumer fraud’ and has no specific consumer protection statute that provides a private right of action for consumer fraud.”). Alabama, Arkansas, Colorado, Florida, Hawaii, Indiana, Iowa, Kansas, Maine, Maryland, 340 Massachusetts, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. OB at 72-73. Id. at 73 n.18. 341 Under the Utah Consumer Sales Practices Act. Id. at 23 n.6. 342 Arkansas, Florida, Indiana, Maine, Maryland, Mississippi, New Mexico, Pennsylvania, Rhode 343 Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, Wisconsin, and Wyoming. AB at 77. Plaintiffs did not assert punitive damages in the following states: Alabama, Colorado, Hawaii, Kansas, Massachusetts, Montana, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, and Washington. Thus, JUUL Labs’ argument is moot. See Bean Compl. ¶¶ 311-328; Davila Compl. ¶ 329; Ayers Compl. ¶ 302; Accettura Compl. ¶ 430; Hall Compl. ¶ 395; Ault-Fishburn Compl. ¶ 610; Hall Compl. ¶ 495; Hall Compl. ¶ 594; Hall Compl. ¶ 790; Alvarez Compl. ¶ 333; Alvarez Compl. ¶ 431; Arnold Compl. ¶ 611; Hall Compl. ¶ 987; Beck Compl. ¶ 324; Alvarez Compl. ¶ 531; Akin Compl. ¶ 721.

punitive damages under the Nevada Deceptive Trade Practices Act, which are permitted as JUUL Labs concedes. 344

1. Common Law Fraud
2. Duty to Disclose JUUL Labs argues that plaintiffs fail to plead their fraud claims with the requisite particularity because plaintiffs fail to allege that JUUL Labs owed a duty 345 to disclose. Plaintiffs respond that because JUUL Labs made statements—such 346 as the JUUL products being smoking cessation devices, contained the equivalent nicotine to one pack of cigarettes, and are a reasonable alternative to traditional cigarettes—it had a duty to disclose the omitted information, in order to make the statements made, not misleading. Alternatively, plaintiffs argue that a duty to 347 disclose is adequately alleged because these omitted facts were known by JUUL Labs, the JUUL products pose an unreasonable risk of bodily injury, and JUUL Labs actively concealed material facts. 348

Maddox v. Adler, 2024 WL 4349481, at *14 (D. Nev. Sept. 29, 2024), appeal dismissed, 2025 344 WL 1037520 (9th Cir. Jan. 31, 2025) (punitive damages are permitted when the defendant is “guilty of oppression, fraud or malice.”); AB at 77. OB at 74-79. 345 Id. at 76-78. 346 AB at 79-86. 347 Id. at 82-86. As discussed in section IV(C)(3)(a), plaintiffs assert sufficient facts to place JUUL 348 Labs on notice of the alleged fraudulent conduct.

Ordinarily, there is no duty to disclose material facts or opinions. However, 349 liability will arise if one actively conceals a material fact or if the party chooses to speak but omits facts which then makes the disclosure misleading. Active 350 concealment requires that a plaintiff plead “facts supporting an inference that the ‘defendant took some action affirmative in nature designed or intended to prevent, and which does prevent, the discovery of facts giving rise to the fraud claim, some artifice to prevent knowledge of the facts or some representation intended to exclude suspicion and prevent inquiry.’” Although not much more, the affirmative act 351 must be more than mere silence. 352 Plaintiffs allege that JUUL Labs made many partial representations that were misleading—namely, that JUUL Labs marketed the JUUL products as smoking cessation devices even though it knew through testing and research that these

Sofregen Medical Inc. v. Allergan Sales, LLC, 2021 WL 1400071, at *3 (Del. Super. Apr. 1, 3492021); Prairie Cap. III, L.P., 132 A.3d at 53 (“Absent a special relationship, a party is under no duty to disclose ‘facts of which he knows the other is ignorant’ even if ‘he further knows the other, if he knew of them, would regard [them] as material in determining his course of action in the transaction in question.’”) (citation omitted). Sofregen Medical Inc., 2021 WL 1400071, at *3; Prairie Cap. III, L.P., 132 A.3d at 52; 350Corporate Prop. Assocs. 14 Inc. v. CHR Holding Corp., 2008 WL 963048, at *6 (Del. Ch. Apr. 10,

1. (“once a party chooses to speak, he can be held liable if he makes “[a] representation stating the truth so far as it goes but which the maker knows or believes to be materially misleading because of his failure to state additional or qualifying matter.”) (citation omitted). Corporate Prop. Assocs. 14 Inc., 2008 WL 963048, at *7. 351 Johnson & Johnson v. Fortis Advisors LLC, ___ A.3d ___, 2026 WL 89452, at *29 (Del. Jan. 352 12, 2026) (“The affirmative act must be more than mere silence, but not much more; the act can be as small as ‘a single word, even a nod or a wink or a shake of the head or a smile or gesture

intended to induce another to believe in the existence of a nonexisting fact ....’”) (citations omitted).

statements were false and that one JUUL pod was equivalent to one pack of 353 cigarettes, even though it chemically engineered the JUUL pods to be stronger and more potent than a traditional pack of cigarettes. 354 Plaintiffs further allege that JUUL Labs knew its representations were not accurate. 355 Plaintiffs, however, fail to allege any active concealment. Their argument that JUUL Labs made constant representations about its products is not sufficient. Their claim of active concealment amounts to nothing more than silence. The final basis on which plaintiffs rely for a duty to disclose is that the JUUL products posed an unreasonable risk of substantial bodily harm. Some states recognize that when an undisclosed defect poses an unreasonable risk of substantial bodily injury and the manufacturer has superior and exclusive knowledge of the defect, a duty to disclose can be triggered. A manufacturer has a duty to disclose 356

Bean Compl. ¶¶ 125-131, 200-221. 353 Id. ¶¶ 181-199, 132-180. Plaintiffs allege that these misleading representations were made 354 across JUUL Labs’ labeling and marketing and they specify where they saw these misrepresentations. See id. ¶¶ 9-97, 110, 120, 131, 150, 152, 182, 188, 192, 197, 201, 209, 211, 213, 222 (detailing the representations that a pack of JUUL pods equal one pack of cigarettes, the food-based advertising campaign, “Make the Switch” campaign, “Vaporized” campaign, and JUUL Labs extensive marketing on social media). Id. ¶¶ 116, 148, 151, 154, 170, 172, 179, 184-86, 188, 199-200, 204, 206-07, 253 355 (detailing JUUL Labs’ knowledge of minors being more susceptible to addiction, test results not conforming to their representations, and that the JUUL products were unusually addictive). In re JUUL Labs, Inc., 497 F. Supp.3d at 628 (“‘a manufacturer has a duty to disclose a defect 356 that poses an unreasonable safety risk even if that manufacturer did not have a transactional relationship with the’ end user.”) (citation omitted); Zwiercan, 2003 WL 1848571, at *1-2; Sowa

1. Mercedes-Benz Grp. AG, 764 F. Supp.3d 1233, 1283, 1286-1287 (N.D. Ga. 2024) (collecting cases from Alabama, Arizonia, California, Colorado, Connecticut, Florida, Georgia, Illinois,

that defect even if the manufacturer is not in a transactional relationship with the user. JUUL Labs does not contest this argument. 357 Plaintiffs adequately plead a duty to disclose based on omission and unreasonable safety risk. Plaintiffs fail to plead active concealment and therefore, fraud claims based on this theory are dismissed.

1. Reasonable or Justifiable Reliance JUUL Labs argues that plaintiffs fail to plead reasonable or justifiable reliance with the requisite particularity and plaintiffs from 26 states fail to plead 358 359 reasonable or justifiable reliance at all. 360 To adequately plead justifiable reliance, a plaintiff must allege facts “making it reasonably conceivable that the plaintiff acted based on of the material representation or omission.” Assessing reliance requires a context-specific 361 analysis. Magic words are not required to adequately plead justifiable reliance. 362 363

Indiana, Kansas, Kentucky, Maryland, Michigan, Minnesota, Missouri, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and Washington). In re JUUL Labs, Inc., 497 F. Supp.3d at 628; Zwiercan, 2003 WL 1848571, at *1-2; Sowa, 764 357

1. Supp.3d at 1283, 1286-1287. OB at 78-79. 358 Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, 359 Illinois, Indiana, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Texas, Utah, Washington, and Wisconsin. OB at 80. 360 Trifecta Multimedia Holdings Inc. v. WCG Clinical Servs. LLC, 318 A.3d 450, 465 (Del. Ch. 361 2024). Rohl v. Rohl, 2025 WL 3268598, at *5 (Del. Super. Nov. 24, 2025). 362 Snyder v. Butcher & Co., 1992 WL 240344 (Del. Super. Sept. 15, 1992) (specifically using the 363 words “justifiable” or “reliance” is not necessary).

While it is true that plaintiffs from 26 states fail to plead that they “reasonably and justifiably relied on the misrepresentations and/or omissions” (unlike the remainder of plaintiffs), they allege facts to show that they acted pursuant to the misrepresentations and/or omissions. These plaintiffs allege that they “reviewed and relied upon” the various representations, would not have purchased the JUUL products or would have paid substantially less for them had they known the truth. 364 Every plaintiff further alleges that: [r]easonable consumers, including the Plaintiffs, would have found it material to their purchasing decisions that JUUL’s products (i) were not smoking cessation devices, (ii) were not reasonable alternatives to combustible cigarettes, (iii) were extremely potent nicotine- delivery mechanisms, (iv) were powerfully addictive, (v) posed unreasonable risks of substantial bodily injury resulting from the use of the products, and (vi) that the nicotine consumed through one JUUL pod exceeded the nicotine consumed through a pack of combustible cigarettes. 365 These allegations are sufficient. Additionally, the Court must review the allegations in the context of the entire complaint. That certain plaintiffs did not use the words “justifiable reliance” does not defeat the adequacy of the factual allegations supporting justifiable reliance. Accordingly, plaintiffs adequately plead justifiable reliance.

See, e.g., Bean Compl. ¶¶ 25-97. 364 See, e.g., Id. ¶¶ 323, 335, 422, 433, 521, 532. 365

1. Breach of the Implied Warranty of Merchantability
2. Direct Privity JUUL Labs argues that under Alabama, Arizona, California, Connecticut, Florida, Georgia, Illinois, Kentucky, Ohio, and Tennessee law, direct privity of contract is required to state a claim for breach of the implied warranty of merchantability, and plaintiffs’ allegations are conclusory. It further argues that 366 even if these states recognize a third-party beneficiary exception, plaintiffs’ allegations are insufficient to sufficiently plead such an exception. 367 Plaintiffs argue that in Arizona, Kentucky, Ohio, and Tennessee, direct privity is not required in circumstances as alleged here. For the remaining 6 states, they 368 argue that the third-party beneficiary exception applies. 369 Arizona requires privity except “in the case of food, beverages, and drugs [where] an implied warranty by the manufacturer [arises] that the goods are pure and free from deleterious foreign substances.” Plaintiffs do not contend that the JUUL 370 products contained a foreign substance. Therefore, the Arizona plaintiffs’ implied

OB at 82, 84. 366 Id. at 85. Alabama, Arizona, California, Connecticut, Florida, Georgia, Illinois, Kentucky, Ohio, 367 and Tennessee. AB at 89. 368 Id. at 90-94. Alabama, California, Connecticut, Florida, Georgia, and Illinois. 369 Crystal Coca-Cola Bottling Co. v. Cathey, 317 P.2d 1094, 1097 (Ariz. 1957) (a fly in a bottle 370 of soda).

warranty claims are dismissed to the extent they did not purchase directly from JUUL Labs. Under Kentucky law privity is required to maintain an implied warranty claim. Plaintiffs argue that under the Kentucky Court of Appeals decision in 371

Dealers Transp. Co. v. Battery Distrib. Co., privity is not required in products 372

However, the Kentucky Supreme Court in Compex International liability cases.373

Co., Ltd. v. Taylor clarified that while the court in Dealers “openly entertained the

idea of disposing of privity as a prerequisite for products liability actions,” the court “ultimately declined to endorse that view[.]” Here, the Kentucky plaintiffs fail to 374 allege privity of contract and therefore, to the extent they did not purchase directly from JUUL Labs, the implied warranty of merchantability claims fail. Ohio provides an exception to the privity requirement for implied warranty claims sounding in tort. “[T]he doctrine of implied warranty in tort was designed 375 to protect consumers not covered by contractual sales warranties because of lack of

See Compex Intern. Co., Ltd. v. Taylor, 209 S.W.3d 462, 463-64 (Ky. 2006). 371 Dealers Transp. Co. v. Battery Distrib. Co., 402 S.W.2d 441 (Ky. Ct. App. 1965). 372 AB at 89. 373 Compex Intern. Co., Ltd., 209 S.W.3d at 464. See also Williams v. Fulmer, 695 S.W.2d 411, 374 413 (Ky. 1985). McKinney v. Bayer Corp., 744 F. Supp.2d 733, 756 (N.D. Ohio 2010); Droesser v. Ford Motor 375Co., 2023 WL 2746792, at *15 (E.D. Mich. Mar. 31, 2023) (applying Ohio law); Ohio Dept. of Adm. Serv. V. Robert P. Madison Int’l, Inc., 741 N.E.2d 551, 558 (Ohio App. 2000) (“this court

finds that a consumer, commercial or not, can maintain a claim for breach of implied warranty/strict liability against a manufacturer, not in privity, for purely economic loss”); Lonzrick

1. Republic Steel Corp., 218 N.E.2d 185, 192 (Ohio 1966) (privity of contract not required for personal injury plaintiff assert tort claim in breach of warranty).

privity.” Plaintiffs argue, and JUUL Labs does not dispute, that this exception 376 applies. The motion to dismiss the Ohio claims is denied. Tennessee requires privity except when the product is unreasonably dangerous and causes personal injuries. A plaintiff may show that a product is “unreasonably 377 dangerous” by demonstrating the product exceeded ordinary consumer expectations of danger or showing that a reasonably prudent manufacturer would not have marketed the product given its dangerous condition. Here, plaintiffs allege that 378 the JUUL products posed more danger than anticipated due to the higher nicotine content and heightened delivery profile of the product, however, no Tennessee 379 plaintiff alleges personal injuries as required to meet the privity exception. Therefore, their implied warranty claims are dismissed. 380 Plaintiffs argue that in the remaining states they are third-party beneficiaries of the implied warranty. Generally, to be considered a third-party beneficiary “a 381 complainant must show that the contracting parties intended to bestow a direct

Lessin v. Ford Motor Co., 600 F. Supp.3d 1137, 1147 (S.D. Cal. 2022) (applying Ohio law). 376 Americoach Tours, Inc. v. Detroit Diesel Corp., 2005 WL 2335369, at *6 (W.D. Tenn. Sept. 23, 3772005) (quoting Leach v. Wiles, 429 S.W.2d 823, 832 (Tenn. App.1968)). Tenn. Code § 29-28-102. 378 Akin Compl. ¶¶ 124-25, 146-47, 150, 207, 344. 379 See Americoach Tours, Inc., 2005 WL 2335369, at *7. 380 AB at 90-94. Alabama, California, Connecticut, Florida, Georgia, and Illinois. 381

benefit on a third party, that the complainant was the intended beneficiary, and that the contract was breached.” 382 In the complaints, plaintiffs allege “Plaintiffs were third-party beneficiaries of JLI’s agreements with its distributors, dealers, and sellers for the distribution, dealing, and sale of JUUL products to consumers. Specifically, plaintiffs are the intended beneficiaries of JLI’s implied warranties. JLI’s products are manufactured with the express purpose an intent of being sold to consumers.” 383 JUUL Labs argues that these allegations are insufficient to plead third-party beneficiary status, as the allegations are “mere conclusions of law, not allegations of fact.” 384 Plaintiffs must plead that JUUL Labs intended to bestow the benefit on plaintiffs and that plaintiffs were intended beneficiaries. Plaintiffs allege that 385 JUUL products were manufactured and sold to the authorized distributors with the express purpose of being sold to the public. These allegations are sufficient to allege

See Harman v. Taurus Intern. Manufacturing, Inc., 586 F. Supp.3d 1155, 1167 (M.D. Ala. 2022) 382(citing Lisk v. Lumber One Wood Preserving, LLC, 792 F.3d 1331, 1338 (11 Cir. 2015) (applying th Ala. Law) (finding third-party beneficiary status adequately pled where plaintiff alleged “the manufacturer intended to benefit remote purchasers.”); Barakezyan v. BMW of N. Am., LLC, 2016 WL 2840803, at *9 (C.D. Cal. Apr. 7, 2016) (finding third-party beneficiary adequately pled where “a plaintiff pleads that he or she purchased a vehicle from an authorized dealership who is an agent of the manufacturer, the dealer was not intended to be the ultimate consumer. Rather, the plaintiff was the intended consumer.”). See Bean Compl. ¶ 347. 383 RB at 37. 384 Napoli-Bosse v. Gen. Motors LLC, 2023 WL 7485796, at *2 (2d Cir. Nov. 13, 2023) (applying 385Conn. law); Barakezyan, 2016 WL 2840803, at *9.

plaintiffs are the intended beneficiaries of the warranties. The claims are not 386 dismissed on this ground.

1. Fitness for Ordinary Purpose The implied warranty of merchantability warrants that a product is fit for ordinary purposes, which focuses on reasonable consumer expectations. It 387 ensures that the product performs at a minimum level of quality and is breached 388 when “the defect in the product …[is] so fundamental as to render the product unfit for its ordinary purpose.” In contrast, the warranty of fitness for a particular 389 purpose “arises ‘when the seller at the time of contracting has reason to know (1) any particular purpose for which the goods are required; and (2) that the buyer is relying on the skill or judgment of the seller to select or furnish suitable goods.’” 390 The fundamental difference between the warranties depends on the use of the product. A “particular purpose” encompasses a specific use by the buyer which is

See Bean Compl. ¶ 347. 386 In re Carrier IQ, Inc., 78 F. Supp.3d 1051, 1107 (N.D. Cal. 2015) (applying Cal., Md., Miss., 387 N.H., Tex., and Wash. law). In re Carrier IQ, Inc., 78 F. Supp.3d at 1107 (citing Birdsong v. Apple, Inc., 590 F.3d 955, 958 388(9th Cir. 2009); Am. Suzuki Motor Corp. v. Superior Court, 37 Cal. App.4th 1291, 1296 (1995)) (applying Cal., Md., Miss., N.H., Tex., and Wash. law). In re Carrier IQ, Inc., 78 F. Supp.3d at 1107 (citing Tietsworth v. Sears, Roebuck & Co., 720 F. 389 Supp.2d 1123, 1142 (N.D. Cal. 2010)) (applying Cal., Md., Miss., N.H., Tex., and Wash. law) (“there must be a fundamental defect that renders the product unfit for its ordinary purpose”). Williams v. Amazon, Inc., 573 F. Supp.3d 971, 976 (E.D. Pa. 2021) (citing Gall ex rel. Gall v. 390Allegheny Cnty. Health Dep’t, 555 A.2d 786, 790 (Pa. 1989)).

peculiar to that buyer. An ordinary purpose is the use for which the product is 391 customarily made. 392 JUUL Labs argues that plaintiffs fail to allege that the JUUL products were unfit for their ordinary purpose because the products functioned as they were customarily used—an electronic nicotine delivery systems. JUUL Labs contends 393 that plaintiffs are attempting to assert a fitness for a particular purpose claim. 394 Plaintiffs counter that based on JUUL Labs’ extensive marketing of JUUL products as smoking cessation devices and as a “safer alternative” to combustible cigarettes, the JUUL’s ordinary purpose was as a smoking cessation device or a better, healthier, way to smoke. 395 The court in Colgate v. JUUL Labs, Inc., addressed this argument. The court stated: [Plaintiffs] have also stated a breach of implied warranty claim based on the pharmacokinetics of JUUL’s nicotine salt formulation. [] They have alleged that JUUL’s formulation is “far more addictive than cigarettes, worsens or aggravates nicotine addiction, and can serve as a gateway to cigarette use.” [] JUUL’s argument that it is not unfit for use simply because it contains nicotine mischaracterizes plaintiffs’ claims. *** I also agree with plaintiffs’ other argument that the allegations about the pharmacokinetics of JUUL’s formulation sufficiently allege that JUUL’s products do not “possess even the most basic degree of fitness

Williams, 573 F. Supp.3d at 976. 391 Id. 392 OB at 88. 393 Id. 394 AB at 95-96. 395

for ordinary use.” [] Again, the issue is not that JUUL’s products contain nicotine; it is that JUUL’s products are alleged to cause more than twice as much nicotine to be absorbed by the body than a pack of combustible cigarettes with the same amount of nicotine. [] A product that causes the body to absorb twice as much nicotine as a combustible cigarette cannot fairly be considered a cigarette replacement as a matter of law. 396 JUUL Labs’ only attempt to distance itself from this ruling is to argue that it is not binding on this Court and “it merely repeats [plaintiffs’] same flawed analysis as to ordinary purpose,” without any further explanation. 397 Plaintiffs allege that the JUUL products were designed, manufactured, advertised, and sold as a reasonable replacement for traditional cigarettes and as smoking cessation devices. They also allege the products were not comparable to 398 traditional cigarettes, but instead delivered nearly twice as much nicotine than a pack The Court agrees with Colgate’s ruling and the motion is denied on of cigarettes. 399 this ground.

Colgate v. JUUL Labs, Inc., 402 F. Supp.3d 728, 757 (N.D. Cal. 2019) (“Colgate II”). 396 RB at 39. 397 Bean Compl. ¶¶ 126, 181, 200-02, 204, 206, 209, 213. 398 Id. ¶¶ 183, 190. 399

1. Pre-suit Notice JUUL Labs argues that in 25 states, plaintiffs fail to give the requisite notice 400 and for an additional 16 states, plaintiffs allegations of notice are insufficient. 401 Plaintiffs respond that notice was provided but that for these 25 states, they did not plead notice. 402 Plaintiffs in the remaining 16 states allege: JLI was provided notice of these issues by numerous complaints filed against it, including the complaints In re: JUUL Labs, Inc. Product Litigation, and by numerous individual letters and communications sent by consumers before or within a reasonable amount of time after they discovered or should have discovered that JUUL products were defective and unmerchantable. 403

Cal. Com. Code § 2607(3)(a) (“buyer must, within a reasonable time after he or she discovers 400 or should have discovered any breach, notify the seller of breach or be barred from any remedy.”); Haw. Rev. Stat. § 490:2-607(3)(a) (same); Idaho Code § 28-2-607(3)(a) (same); Iowa Code § 554.2607(3)(a) (same); Kan. Stat. § 84-2-607(3)(a) (same); Ky. Rev. Stat. § 355.2-607(3)(a) (same); Me. Rev. Stat. tit. 11, § 2-607(3)(a) (same); Md. Code Com. Law § 2-607(3)(a) (same); Minn. Stat. § 336.2-607(3)(a) (same); Miss. Code § 75-2-607(3)(a) (same); Mont. Code § 30-2- 607(3)(a) (same); Neb. Rev. St. U.C.C. § 2-607(3)(a) (same); Nev. Rev. Stat. § 104.2607(3)(a) (same); N.H. Rev. Stat. § 382- A:2-607(3)(a) (same); N.M. Stat. § 55-2-607(3)(a) (same); Okla. Stat. tit. 12A, § 2-607(3)(a) (same); Or. Rev. Stat. § 72.6070(3)(a) (same); R.I. Gen. Laws § 6A- 2-607(3)(a) (same); S.C. Code § 36-2-607(3)(a) (same); S.D. Codified Laws § 57A-2-607(3)(a) (same); Va. Code § 8.2-607(3)(a) (same); W. Va. Code § 46-2-607(3)(a) (same); Wyo. Stat. § 34.1- 2-607(c)(i) (same); La. Civ. Code art. 2522 (“The buyer must give the seller notice of the existence of a redhibitory defect in the thing sold.”); Torres Mas v. Carver Boat Corp., 257 F. Supp.2d 484, 491 (D.P.R. 2003) (buyer must give notice of defect before initiating suit). OB at 92-93. These states are Alabama, Arkansas, Connecticut, Delaware, Florida, Illinois, 401 Indiana, Michigan, Missouri, New York, Ohio, Pennsylvania, Tennessee, Texas, Utah, and Wisconsin. AB at 96-97. These states are California, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, 402 Maine, Maryland, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New Mexico, Oklahoma, Oregon, Puerto Rico, Rhode Island, South Carolina, South Dakota, Virginia, West Virginia, and Wyoming. See, e.g., Bean Compl. ¶ 645 (Alabama). 403

Plaintiffs allege that these allegations are sufficient. These states, however, require individual notices that specify the defects that particular product is experiencing. Accordingly, plaintiffs’ implied warranty claims in all 41 states are 404 dismissed for failure to plead or adequately plead notice.

1. Unjust Enrichment
2. Independent Cause of Action JUUL Labs argues that Alaska, California, New Jersey, and Texas do not recognize the claim of unjust enrichment as an independent cause of action. 405 Plaintiffs disagree but argue that if the court finds otherwise, the unjust enrichment claims should be treated as quasi-contract or restitution claims. 406

Smith v. Apple, Inc., 2009 WL 3958096, at *2 (N.D. Ala. Nov. 4, 2009); Murphy v. Wright Med. 404Tech. Inc., 2022 WL 947052, at *3 (E.D. Ark. Mar. 29, 2022); Zeigler v. Sony Corp. of Am., 849

A.2d 19, 24 (Conn. Super. Ct. 2004); Theis v. Viewsonic Corp., 2013 WL 1632677, at *1 (D. Del. Apr. 16, 2013); Fineman v. Ferragamo USA Inc., 672 F. Supp.3d 1302, 1307 (S.D. Fla. 2023);

Connick v. Suzuki Motor Co., 675 N.E.2d 584, 590 (Ill. 1996); Cincinnati Ins. Cos. v. Hamilton Beach/Proctor-Silex, Inc., 2006 WL 299064, at *4 (N.D. Ind. Feb. 7, 2006); Chapman v. Gen. Motors LLC, 531 F. Supp.3d 1257, 1281 (E.D. Mich. 2021); Lawrence v. Louisville Ladder, Inc.,

2024 WL 1328246, at *4 (E.D. Mo. Mar. 28, 2024); Singleton v. Fifth Generation, Inc., 2016 WL 406295, at *12 (N.D.N.Y. Jan. 12, 2016); Radford v. Daimler Chrysler Corp., 168 F. Supp.2d 751, 754 (N.D. Ohio 2001); Seidl v. Artsana USA, Inc., 643 F. Supp.3d 521, 534 (E.D. Pa. 2022); Bunn

1. Navistar, Inc., 797 F. App’x 247, 252-55 (6th Cir. 2020) (applying Tenn. Code §47-2-607(3)); Mora v. AngioDynamics, Inc., 2022 WL 16640021, at *4 (S.D. Tex. Sept. 20, 2022), report and recommendation adopted, 2022 WL 16636940 (S.D. Tex. Nov. 1, 2022); Callegari v. Blendtec, Inc., 2018 WL 5808805, at *6 (D. Utah Nov. 6, 2018); Blitz v. Monsanto Co., 317 F. Supp.3d 1042,

1054 (W.D. Wis. 2018). OB at 98. 405 AB at 97-100. 406

Alaska does not recognize unjust enrichment as an independent a cause of action, but rather, it is a “prerequisite to recovery under the doctrine of restitution.” 407 Alaska “treat[s] actions brought upon theories of unjust enrichment, quasi-contract, contracts implied in law and quantum meruit as essentially the same.” Because 408 Alaska courts construe claims of unjust enrichment as quasi-contract claims, the claims of unjust enrichment are not dismissed. 409 California courts are split on whether unjust enrichment is an independent cause of action. JUUL Labs relies on Robinson, which found that unjust 410

enrichment is “‘a general principle underlying various legal doctrines and remedies’” but not an independent cause of action. 411 Plaintiffs rely on In re JUUL Labs, Inc., Marketing, Sales Practices, and

Products Liab. Litig., which permitted an unjust enrichment claim as stand-alone 412

cause of action. The court relied on two cases where plaintiffs were permitted to 413

Haines v. Comfort Keepers, Inc., 393 P.3d 422, 428 (Alaska 2017). 407 Alaska Sales & Serv., Inc. v. Millet, 735 P.2d 743, 746 n.6 (Alaska 1987) (citing Paschall’s, Inc. 408v. Dozier, 407 S.W.2d 150, 154 (1966)) (noting that these terms are used interchangeably in many

court opinions). See Kramer, 546 A.2d at 353 (“In determining the nature of the wrong alleged, a court must 409 look to ‘the body of the complaint, not to the plaintiff’s designation or stated intention.’”). Robinson v. HSBC Bank USA, 732 F. Supp.2d 976 (N.D. Cal. 2010). 410 Id. at 987 (quoting McBride v. Boughton, 123 Cal. App.4 379, 387 (2004)). 411 th 497 F. Supp.3d 552 (N.D. Cal. 2020). 412 Id. at 641-42. 413

assert unjust enrichment claims based on false advertising because their claims could be considered quasi-contract claims. 414 California courts construe a cause of action labeled as “unjust enrichment” as a quasi-contract claim seeking restitution. Restitution is only available to a 415 plaintiff if the benefits were conferred by mistake, fraud, coercion, or request. 416 Plaintiffs allege that JUUL Labs was unjustly enriched due to their use of false and misleading advertising regarding the JUUL products adequacy as smoking cessation devices, reasonableness as an alternative to traditional cigarettes, and addictive qualities. In other words, plaintiffs contend that JUUL Labs received a 417 benefit due to their alleged fraudulent conduct. Restitution is available under California law for fraud. The Court will not dismiss California plaintiffs’ unjust 418 enrichment claims and instead will require those claims to proceed as quasi-contract claims seeking restitution. 419

Unjust enrichment may proceed as a stand-alone cause of action under California law if “it 414 states a claim for relief as an independent cause of action or as a quasi-contract claim for restitution. To allege unjust enrichment as an independent cause of action, a plaintiff must show that the defendant received and unjustly retained a benefit at the plaintiff's expense.” ESG Capital

Partners, LP v. Stratos, 828 F.3d 1023, 1038 (9th Cir. 2016) (applying Cal. law); see also Snarr v. Cento Fine Foods Inc., 2019 WL 7050149, at *8 (N.D. Cal. Dec. 23, 2019).

Rutherford Holdings, LLC v. Plaza Del Rey, 166 Cal. Rptr. 3d 864, 872 (Cal. Ct. App. 2014). 415 Snarr, 2019 WL 7050149, at *7. 416 Bean Compl. ¶ 798. 417 Snarr, 2019 WL 7050149, at *7. 418 Rutherford Holdings, LLC, 166 Cal. Rptr. 3d at 872. 419

New Jersey does not recognize unjust enrichment as an independent cause of action in tort, but construes the claim as a quasi-contract cause of action. To plead 420 a claim for unjust enrichment, a plaintiff must allege “that the opposing party ‘received a benefit and that retention of that benefit without payment would be unjust.’” A plaintiff is also required to plead “that it expected remuneration from 421 . . . defendant at the time it performed or conferred a benefit on defendant and that the failure of remuneration enriched defendant beyond its contractual rights.” 422 New Jersey plaintiffs do not allege that they expected renumeration and therefore, the unjust enrichment claims are dismissed. Texas also does not recognize unjust enrichment as a cause of action, but it is a theory of recovery under a quasi-contract claim. Unjust enrichment 423 424

Goldsmith v. Camden Cty. Surrogate’s Office, 975 A.2d 459, 462 (N.J. Super. App. 2009) 420 (“Unjust enrichment is not an independent theory of liability, but is the basis for a claim of quasi- contractual liability.”) (citation omitted); Jurista v. Amerinox Processing, Inc., 492 B.R. 707, 754 (D.N.J. 2013). Adar Aleph LLC v. TDJP Properties LLC, 2024 WL 649263, at *3 (N.J. Super. Feb. 16, 2024) 421 (citation omitted). Adar Aleph LLC, 2024 WL 649263, at *3 (quoting Thieme v. Aucoin-Thieme, 151 A.3d 545, 422 557 (N.J. 2016)). Mowbray v. Avery, 76 S.W.3d 663, 679 (Tex. App. 2002); Barnett v. Coppell N. Tex. Ct., Ltd., 423123 S.W.3d 804, 816-17 (Tex. App. 2003); City of Corpus Christi v. Heldenfels Brothers, Inc., 802 S.W.2d 35, 40 (Tex. App. 1990), aff’d, 832 S.W.2d 39 (Tex. 1992). Landers v. Landers, 2021 WL 1570011, at *8 (Tex. App. Apr. 22, 2021); Mowbray, 76 S.W.3d 424 at 679 (“that is, where a benefit was wrongfully secured or passively received which would be unconscionable for the receiving party to retain.”).

“characterizes the result of a failure to make restitution under circumstances that give rise to an implied or quasi-contractual obligation to return those benefits.” 425 While styled as an independent cause of action in the complaints, the court looks to the substance of the allegations and will construe this claim as a quasi- contract claim. 426

1. Adequate Remedy at Law JUUL Labs argues that the claims of plaintiffs from 25 states must be 427 dismissed because they cannot plead lack of a remedy at law. Plaintiffs plead this 428 claim in the alternative and contend that it should not be dismissed at this stage. 429 While there may be some variation in different states, the essential elements of unjust enrichment are: “‘(1) an enrichment, (2) an impoverishment, (3) a relation between the enrichment and impoverishment, (4) the absence of justification, and (5) the absence of a remedy provided by law.’” While referred to as an “equitable 430 claim,” in Delaware, it is a legal claim (and therefore, this court has jurisdiction over

Pemex Exploración Y Producción v. BASF Corp., 2013 WL 5514944, at *85 (S.D. Tex. Oct. 1, 425 2013). Kramer, 546 A.2d at 353; Johnson v. Hamilton, 185 A.2d 70, 72 (Del. Super. 1962) (“mere 426 matters of form in labelling pleadings are of no importance; the contents of pleadings are looked to in seeking that justice is done”). Alabama, Arizona, Colorado, Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, 427 Kansas, Massachusetts, Michigan, Minnesota, Mississippi, New Mexico, Nevada, New York, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, Utah, Washington, and Wisconsin. OB at 99. 428 AB at 100-01. 429 Garfield v. Allen, 277 A.3d 296, 341 (Del. Ch. 2022) (quoting Nemec v. Shrader, 991 A.2d 430 1120, 1130 (Del. 2010)).

the claim) and the fifth element only comes into play when the Court of Chancery is determining whether it has jurisdiction and no other equitable claim is asserted. 431 In this regard, Delaware law is in accord with the Restatement of Unjust Enrichment and other jurisdictions, relevant here, such as California, Illinois, Rhode Island, Georgia, and Pennsylvania. It is also a legal claim in Connecticut and Utah. 432 433 434 In some states, unjust enrichment is not an alternative remedy where the parties’ relationship is governed by a contract and therefore, it cannot be pled in the alternative to a breach of contract claim. 435

Id. at 349 (“Colloquially speaking, the absence of a remedy at law can be viewed as an element 431 of the claim. Outside of a dispute over jurisdiction, however, it is not necessary for a plaintiff to plead or later prove the absence of an adequate remedy at law.”). Id. at 349 n.25. 432 Gagne v. Vaccaro, 835 A.2d 491, 495-97 (Conn. App. 2003) (recognizing Pennsylvania and 433 Massachusetts treat unjust enrichment as a legal claim). Johnson v. Blendtec, Inc., 500 F. Supp.3d 1271, 1291 (D. Utah 2020) (“proof of ‘the absence 434of an adequate remedy at law is not an element of the prima facie case for unjust enrichment under the law[ ] of ... Utah.’”) (citation omitted, emphasis in original). Jones v. Bank of Am., N.A., 2019 WL 2744470, at *8 (N.D. Ala. July 1, 2019) (“the existence 435 of an express contract extinguishe[s] an unjust enrichment claim altogether because unjust enrichment is an equitable remedy which issues only where there is no adequate remedy at law.”);

Isofoton, S.A. v. Giremberk, 2006 WL 1516026, at *3 (D. Ariz. May 30, 20206) (quoting Sutter Home Winery, Inc. v. Vintage Selections, Ltd., 971 F.2d 401, 408 (9 Cir. 1992)) (“under Arizona th

law a party ‘cannot recover on its claim [ ] of unjust enrichment’ where the parties’ dispute is ‘governed by a valid express contract.’”); Bd. of Governors of Colo. St. Univ. v. Alderman, 563 P.3d 1205, 1212-13 (Colo. 2025) (“breach of contract and unjust enrichment claims involving the same subject matter are mutually exclusive. Thus, a party may not assert a claim for unjust enrichment if a valid contract covers the same subject matter”); Willaims v. Bear Stearns

& Co., 725 So. 2d 397, 400 (Fla. Dist. Ct. App. 1998) (“There is no dispute that under Florida law,

the general rule is that if the complaint on its face shows that adequate legal remedies exist, equitable remedies are not available. []However, this doctrine does not apply to claims for unjust enrichment. []It is only upon a showing that an express contract exists that the unjust enrichment or promissory estoppel count fails.”) (citations omitted); Shafer, Kline & Warren, Inc. v. Allen Grp.-

Kan. City, LLC, 2014 WL 1974525, at *2 (D. Kan. 2014) (unjust enrichment claim barred by the

parties’ express contract); Killen v. Johnson & Johnson, 2022 WL 330995, at *7 (S.D. Miss. Feb. 3, 2022) (ruling that statutory claim did not automatically subsume unjust enrichment claim, but

Hawaii, Illinois, Iowa, Massachusetts, Minnesota, Mississippi, Nevada, New Mexico, New York, Washington, and Wisconsin allow a claim for unjust enrichment to be pled in the alternative to legal claims. 436 Plaintiffs do not allege a breach of contract claim and JUUL Labs does not contest the right to plead unjust enrichment in the alternative. Puerto Rico appears

dismissing the claim for failure to allege there was no legal contract between the parties); Armijo

1. FedEx Ground Package Sys., Inc., 285 F. Supp.3d 1209, 1217 (D.N.M. 2018) (“noting that in New Mexico, ‘unjust enrichment is widely accepted as an alternative theory of recovery, should the factfinder determine that no contract between the parties exists’”) (citation omitted); Korte

Construction Co. v. State on Relation of Bd. of Regents of Nevada Sys. of Higher Edu., 492 P.3d

540, 544 (Nev. 2021) (plaintiff cannot recover under unjust enrichment where a contract governed the parties’ relationship); Tyree v. Cornman, 453 P.3d 497, 508 (Okla. Civ. App. 2019) (unjust enrichment precluded because plaintiff asserted a breach of contract). Jass v. CherryRoad Tech., Inc., 472 F. Supp.3d 787, 799 (D. Haw. 2020); Velez v. RM 436Acquisition, LLC, 672 F. Supp.3d 620, 646 (N.D. Ill. 2023) (“It is well settled that a plaintiff may

not recover under an unjust enrichment theory when a contract governs the relationship between the parties.”); Rasch v. Tyson Fresh Meats, Inc., 2016 WL 11641708, at *5 (N.D. Iowa Oct. 11,

1. (noting that generally a claim for unjust enrichment will be dismissed where the party has a breach of contract remedy, but will allow it to be pled in the alternative); Linde v. Envision

Healthcare Corp., 2021 WL 3089214, at *3 (D. Kan. July 22, 2021) (permitting claims to be

asserted in the alternative and therefore refusing to dismiss unjust enrichment claim where statutory claims were also asserted); Capstone Headwaters LLC v. EdutainmentLive LLC, 2021 WL 5882409, at *6 (D. Mass. Dec. 13, 2021) (allowing unjust enrichment claim to be pled in the alternative to contract claim because at the pleading stage it was too uncertain whether plaintiff had an adequate remedy at law); Francis v. General Motors LLC, 504 F. Supp.3d 659, 694 (E.D. Mich. 2020)(“‘unjust enrichment claims routinely are allowed to proceed when pleaded in the alternative to other viable claims for relief.’”) (citation omitted); Marty H Segelbaum Inc. v. MW

Capital LLC, 672 F. Supp.2d 875, 878 (D. Minn. 2009) (“Where plaintiff alleges unjust enrichment

‘as an alternative theory,’ the Court may consider both the contract and unjust enrichment claims at this phase in the litigation.”); Bond Pharmacy v. Advanced Health Sys., Inc., 2022 WL 304698, at *3 (S.D. Miss. Feb. 1, 2022) (“Because BCBS and AHS may plead unjust enrichment in the alternative, the Court does not dismiss this claim.”); Farmer v. Walmart, Inc., 729 F. Supp.3d 1202, 1237 (D.N.M. 2024) (“plead[ing] an unjust enrichment claim in the alternative to remedies at law is permissible.”); U.S. Bank Nat’l Assoc. v. BFPRU I, LLC, 230 F. Supp.3d 253, 266 (S.D.N.Y.

1. (“‘However, even though Plaintiffs may not ultimately recover under both the breach of contract and unjust enrichment claims, courts in this Circuit routinely allow plaintiffs to plead such claims in the alternative.’”) (citation omitted) (emphasis in original); Diamond Center, Inc. v.

Leslie’s Jewelry Mfg. Corp., 562 F. Supp.2d 1009, 1016-17 (W.D. Wis. 2008) (refusing to dismiss

unjust enrichment claim pled in the alternative to a legal claim).

to be the only jurisdiction that does not permit the claim to be pled in the alternative. Accordingly, the motion is granted only on plaintiffs’ claims under 437 Puerto Rico law.

1. Confer a Direct Benefit JUUL Labs argues plaintiffs’ claims in 25 states are fatally flawed because 438 they fail to allege they conferred a direct benefit on JUUL Labs. Specifically, 439 JUUL Labs argues that in order to establish unjust enrichment, a plaintiff must be in a direct relationship with defendant to establish the direct benefit element. 440 Plaintiffs contend that an indirect purchaser is sufficient in these states to satisfy 441 this element. 442

Kress Stores of Puerto Rico, Inc. v. Wal-Mart Puerto Rico, Inc., 2021 WL 2912436, at *9 (D.P.R. 437July 9, 2021), rev’d on other grounds, 121 F.4th 228 (1st Cir. 2024). Delaware, Alabama, Arizona, Connecticut, Florida, Georgia, Idaho, Illinois, Kentucky, 438 Massachusetts, Minnesota, Mississippi, Montana, Nevada, New Mexico, New York, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, Utah, Washington, West Virginia, Wisconsin, and Wyoming. OB at 104-06. 439 Id. at 104-07. 440 Alabama, Arizona, Connecticut, Florida, Georgia, Illinois, Kentucky, Massachusetts, 441 Mississippi, Montana, Nevada, New York, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, Utah, Washington, West Virginia, Wisconsin, and Wyoming. AB at 110-18. Abernathy v. Church of God, 2011 WL 13135285, at *2 (N.D. Ala. Nov. 28, 4422011) (direct benefit not required to sustain an unjust enrichment claim); In re Auto. Parts Antitrust

Litig., 50 F. Supp.3d 869, 897 (E.D. Mich. 2014) (The “critical inquiry [i]s not whether the benefit

is conferred directly on the defendant, but whether the plaintiff can establish the relationship between his detriment and the defendant’s benefit ‘flow from the challenged conduct.’”); HSBC

Bank SA, Nat. Ass’n v. D’Agostino, 2015 WL 3797990, at *12 (Conn. Super. Ct. May 21, 2015)

(indirect benefit is sufficient); Williams v. Wells Fargo Bank N.A., 2011 WL 4368980, at *9 (S.D. Fla. Sept. 19, 2011) (same; no direct contact does not preclude finding of direct benefit); In re

Generic Pharms. Pricing Antitrust Litig., 368 F. Supp.3d 814, 850-51 (E.D. Pa. 2019) (same;

applying laws of Ala., Ariz., Fla., Ga., N.Y., N.D., R.I., S.C., and Utah); Muehlbauer v. General

Motors Corp., 431 F. Supp.2d 847, 852 (N.D. Ill. 2006) (same); Seye v. Community Yellow Cab,

In Alabama “[i]t is not necessary ... to prove that money belonging to the plaintiff was actually and physically given to, and received by the defendant, as it is sufficient to show that ... the defendant has received the benefit indirectly.” 443 JUUL Labs relies on Hancock-Hazlett General Const. Co., Inc. v. Trane Co., However, Hancock-for the proposition that Alabama law requires a direct benefit. 444

Hazlett did not address the question of whether a direct benefit was required. 445

Arizona also does not require a direct benefit and instead focuses on “whether the plaintiff can establish the relationship between his detriment and the defendant’s JUUL Labs cites Physicians Surgery benefit ‘flow from the challenged conduct.’” 446

Ctr. of Chandler v. Cigna Healthcare Inc. to support its argument under Arizona

law. The court, however, did not hold that a “direct benefit” or relationship 447

2013 WL 1332430, at *12 (E.D. Ky. 2013) (same); Massachusetts v. Mylan Lab’ys, 357 F. Supp.2d 314, 323 (D. Mass. 2005) (same); GEICO Corp. v. Autoliv, Inc., 345 F. Supp.3d 799, 851-52 (E.D. Mich. 2018) (same; applying Miss. law); In re K-Dur Antitrust Litig., 338 F. Supp.2d 517, 544 (D.N.J. 2004) (same; applying Mont. law); Sheet Metal Workers Local 441 Health & Welfare Plan

1. GlaxoSmithKline, 737 F. Supp.2d 380, 440-41 (E.D. Pa. 2010) (acceptance and retention of indirect benefit is sufficient; applying laws of N.Y., Mass., Minn., and W. Va.). Jewett v. Boihem, 23 So. 3d 658, 662 (Ala. 2009) (quoting 42 C.J.S. Implied Contracts § 19, at 443 27 (2007) (“Often a person owes restitution for a benefit he received through entirely innocent behavior, and even through a transaction in which he took no part.”) (citation omitted) (emphasis in original). Hancock-Hazlett Gen. Constr. Co. v. Trane Co., 499 So. 2d 1385, 1387 (Ala. 1986). 444 Abernathy, 2011 WL 13135285, at *2 (“The court has studied the Hancock-Hazlett opinion, 445 and nowhere within that decision does the Supreme Court of Alabama use either the word ‘direct’ or the word ‘benefit,’ much less the phrase ‘direct benefit.’”); see also, Hancock-Hazlett Gen.

Constr. Co., 499 So. 2d at 1387 (defendant returned overpayment to plaintiff, so defendant was not

in possession of plaintiff’s money). In re Auto. Parts, 50 F. Supp.3d at 897 (citing Yee v. Nat’l Gypsum Co., 2010 WL 2572976, at 446 *4 (D. Ariz. June 22, 2010)) (applying Ariz. law). Physicians Surgery Ctr. of Chandler v. Cigna Healthcare Inc., 609 F. Supp.3d 930 (D. Ariz. 447 2022).

between the parties is necessary. It held that the plaintiff failed to establish this element because the plaintiff (a medical provider) conferred the benefit—medical services—to plan members, not the defendant insurance company. 448 JUUL Labs cites Granito v. Int’l Bus. Machines in support of its argument 449 under Connecticut law. Granito dismissed an unjust enrichment claim because plaintiff bought the product from a retailer, not the defendant-manufacturer, and therefore, plaintiff failed to show a direct benefit. 450

HSBC Bank SA, Nat. Ass’n v. D’Agostino, relied on by plaintiffs, recognized 451

HSBC concluded that a direct benefit is a split among Connecticut trial courts.452 not required, relying in part on the Connecticut Supreme Court’s prior description 453 of unjust enrichment arising from an indirect benefit. Other courts have also 454 declined to follow Granito. 455

Id. at 940. 448 2003 WL 1963161 (Conn. Super. Ct. Apr. 16, 2003). 449 Id. at *2. 450 2015 WL 3797990 (Conn. Super. Ct. May 21, 2015). 451Id. at *11; see also Breen v. Judge, 4 A.3d 326, 335 (Conn. App. 2010) (recognizing neither the 452

Appellate Court “nor our Supreme Court, has specifically addressed the question of whether an alleged benefit must be directly conferred on a defendant in order for a court to find that the defendant has been unjustly enriched.”). HSBC Bank SA, Nat. Ass’n, 2015 WL 3797990, at *11-14. 453 Id. at *11 (quoting New Hartford v. Connecticut Resources Recovery Auth., 970 A.2d 592, 618 454 (Conn. 2009)) (noting that unjust enrichment may arise “indirect[ly], involving, for example, a transfer of a benefit from a third party to a defendant when the plaintiff has a superior equitable entitlement to that benefit.”). Clinger v. Edgewell Personal Care Brands LLC, 2023 WL 2477499, at *16 (D. Conn. March 455 13, 2023) (finding no direct benefit required, relying in part on Connecticut Supreme Court’s 2019 similar indication in Geriatrics, Inc. v. McGee, 332 Conn. 1, 25 (2019)); In re Takata Airbag Prod.

This Court finds HSBC persuasive and finds Connecticut does not require a direct relationship. An indirect relationship will satisfy the conferral of a benefit requirement when the plaintiff has “superior equitable entitlement to that benefit.” 456 Similarly, Florida recognizes that while a direct benefit is required for unjust enrichment, direct contact between plaintiff and defendant is not. But the 457 defendant must actually receive the benefit from the transaction. 458

In re Generic Pharmaceuticals Pricing Antitrust Litig. considered the direct

benefit element under multiple states’ law. The court ruled that the term “direct 459 benefit” refers to a benefit that is “not incidental, and not to a requirement that there

Liab. Litig., 462 F. Supp.3d 1304, 1327 (S.D. Fla. 2020) (applying Connecticut law concluding

that no direct benefit required). Town of New Hartford v. Connecticut Res. Recovery Auth., 970 A.2d 592, 618 (Conn. 2009) 456 (“Although unjust enrichment typically arises from a plaintiff’s direct transfer of benefits to a defendant, it also may be indirect, involving, for example, a transfer of a benefit from a third party to a defendant when the plaintiff has a superior equitable entitlement to that benefit.”); Stefan v.

P.J. Kids, LLC, 2005 WL 834208, at *3 (Conn. Super. Ct. Mar. 1, 2005) (citing United Coastal Industries v. Clearheart Constr. Co., 802 A.2d 901, 905-06 (Conn. App. Ct. 2002)) (“the plaintiff

must, inter alia, prove the defendant received a benefit in an unjust enrichment claim.”) (emphasis in original) (“Nor is the court persuaded by other superior court decisions which have concluded

the parties must have a direct relationship (as opposed to buying from a retailer as here) ....”).

Williams, 2011 WL 4368980, at *9 (“It would not serve the principles of justice and equity to 457 preclude an unjust enrichment claim merely because the ‘benefit’ passed through an intermediary before being conferred on a defendant.”). Compare id. (defendant’s receipt of a portion of plaintiff’s insurance premium payment made 458to a third party was sufficient to satisfy direct benefit element) and Kopel v. Kopel, 229 So. 3d 812, 818 (Fla. 2017) (benefit to corporation was not sufficient to confer a direct benefit to the corporation’s owner). Alabama, Arizona, the District of Columbia, Florida, Georgia, Idaho, Iowa, Kansas, Maine, 459 Maryland, Michigan, Missouri, New Jersey, New York, North Carolina, North Dakota, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Utah.

be privity between the parties.” The authority JUUL Labs relies on in these states 460 are factually distinguishable and do not reach a contrary result. 461 Finally, In re K-Dur Antitrust Litig. ruled that indirect purchasers were 462 permitted to proceed with unjust enrichment claim under the law of multiple states. 463 As the authority above establishes, direct benefit does not require direct contact. Plaintiffs allege they overpaid authorized retailers or JUUL Labs directly, 464

In re Generic Pharm. Pricing, 368 F. Supp.3d at 850-51 (if the connection between plaintiff 460 and defendant is “not so attenuated” as to make the claims for unjust enrichment implausible, then pleading will be sufficient to assert unjust enrichment). Scott v. Mamari Corp., 530 S.E.2d 208, 212 (Ga. Ct. App. 2000) (finding no direct benefit 461 where plaintiff performed repair work for a resort and the defendants were the resort’s lenders);

Stevenson v. Windermere Real Estate/Capital Grp., Inc., 275 P.3d 839, 842-44 (Idaho 2012) (“We

are unwilling to expand the doctrine of unjust enrichment to the extent advocated by the [plaintiffs]. If we were to do so, in every situation where an unjustly enriched party transfers some portion of that benefit to a creditor, the party conferring the benefit to the unjustly enriched party could claw back the benefit from the creditor. Such a rule would inject a measure of unreliability into every commercial transaction that is inconsistent with the operation of our market economy.);

Kaye v. Grossman, 202 F.3d 611, 616 (2d Cir. 2000) (applying N.Y. law) (no direct benefit

established to wife-defendant where plaintiff loaned money to husband-defendant who used the proceeds to pay expenses of his law practice); Sousa v. Roy, 243 A.3d 775, 782 (R.I. 2021) (in dispute over proceeds of house after death of grandparents-owners, plaintiffs’ claim that their uncle was benefitted by plaintiffs’ mother’s financial contributions to the construction of an addition onto her parents’ home several years before this dispute was “simply too attenuated” to constitute a direct benefit on uncle, who now resided in the home). 338 F. Supp.2d 517 (D.N.J. 2004). 462 Applying the laws of the 50 states, the District of Columbia, and Puerto Rico. In re K-Dur, 338 463

1. Supp.2d at 545 n.35 (“the essence of the doctrine of unjust enrichment is that there is no direct relationship between the parties.”) (citation omitted). Abernathy, 2011 WL 13135285, at *2 (direct benefit not required to sustain an unjust 464enrichment claim); In re Auto. Parts, 50 F. Supp.3d at 897 (The “critical inquiry [i]s not whether the benefit is conferred directly on the defendant, but whether the plaintiff can establish the relationship between his detriment and the defendant’s benefit ‘flow from the challenged conduct.’”); HSBC Bank SA, Nat. Ass’n, 2015 WL 3797990, at *12 (indirect benefit is sufficient);

Williams, 2011 WL 4368980, at *9 (same: no direct contact does not preclude finding of direct

benefit); In re Generic Pharms. Pricing, 368 F. Supp.3d at 850-51 (same: applying laws of Ala.,

which they allege was improperly retained by JUUL Labs. This is sufficient to 465 allege conferral of a benefit.

1. Defendant Must Unjustly Receive a Benefit JUUL Labs argues that to prove unjust enrichment plaintiffs must show that JUUL Labs got “something for nothing.” It contends that plaintiffs paid money 466 and received the product in exchange, and therefore, it was not unjustly enriched. 467 Plaintiffs respond that JUUL Labs relies only on Wisconsin authority in support of its argument, and therefore, it waived this argument for the remaining 49 Further, plaintiffs contend that overpayment is a basis to establish jurisdictions. 468 unjust enrichment. 469 While the elements of an unjust enrichment claim vary among states, generally, a plaintiff must allege “that they conferred a benefit or enrichment upon defendant and that it would be inequitable or unjust for defendant to accept and retain the benefit.” 470

Ariz., Fla., Ga., N.Y., N.D., R.I., S.C., and Utah); Muehlbauer, 431 F. Supp.2d at 852 (same); Seye, 2013 WL 1332430, at *12 (same); Massachusetts, 357 F. Supp.2d at 323 (same); GEICO Corp., 345 F. Supp.3d at 851-52 (same; applies Miss. law); In re K-Dur, 338 F. Supp.2d at 544 (same; applies Mont. law); Sheet Metal Workers Local 441 Health & Welfare Plan, 737 F. Supp.2d at 440-

See, e.g., Bean Compl. ¶¶ 352-54. 465 OB at 108-09. 466 Id. 467 AB at 118. 468 Id. at 118-20. 469 In re Flonase Antitrust Litig., 692 F. Supp.2d 524, 541 (E.D. Pa. 2010) (applying laws of Ariz., 470Fla., Ill., Iowa, Mass., N.C., and Wis.); In re Cardizem CD Antitrust Litig., 105 F. Supp.2d 618, 669-70 (E.D. Mich. 2000) (applying laws of Ala., Cal., D.C., Ill., Mich., Minn., N.Y., N.C., Tenn.,

JUUL Labs relies on Weaver v. Champion Petfoods USA Inc., which states 471 “the equity concern embodied in the doctrine of unjust enrichment is ‘getting Weaver relied on something for nothing, not providing a product for a price.’” 472 another District Court case, Tsamota Certification Ltd. v. ANSI ASQ Nat’l

Accreditation Board LLC, which quoted the “something for nothing” language 473

from another District Court case, Assoc. Banc–Corp v. John H. Harland Co. 474

Assoc. Banc–Corp relies on the Wisconsin Supreme Court case, Ramsey v. Ellis. 475

The plaintiff in Ramsey worked as a consultant for a real estate brokerage firm and sought recovery of additional compensation from the firm. The supreme court reviewed the lower court’s ruling, which equated quantum meruit with unjust enrichment. In distinguishing these causes of action, the supreme court stated: While recovery for unjust enrichment is based upon the inequity of allowing the defendant to retain a benefit without paying for it, recovery in quantum meruit is based upon an implied contract to pay reasonable compensation for services rendered…. [D]amages in an unjust enrichment claim are measured by the benefit conferred upon the

and Wis.); In re Generic Pharm. Pricing, 368 F. Supp.3d at 849 (applying laws of Alaska, Ark., Colo., Conn., De., Fla., Ga., Idaho, Ill., Ky., La., Md., Mass., Mo., Mont., N.J., Okla., Pa., P.R., R.I., S.C., Tex., Va., Wash., and Wyo.); In re K-Dur, 338 F. Supp.2d at 543-44 (applying laws of fifty states, D.C., and P.R.). 2019 WL 2774139 (E.D. Wis. July 1, 2019). The other cases cited by JUUL Labs, TandM 471Farms v. CNH Indus. Am. LLC, 488 F. Supp.3d 756, 769 (E.D. Wis. 2020) and Brame v. Gen. Motors LLC, F. Supp.3d 832, 843 (E.D. Wis. 2021), both rely on Weaver for the proposition that

unjust enrichment requires receipt of “something for nothing.” Weaver, 2019 WL 2774139, at *6. 472 2018 WL 1936840, at *9 (E.D. Wis. Apr. 24, 2018). 473 2007 WL 128337, at *2 (E.D. Wis. Jan. 11, 2007). 474 484 N.W.2d 331, 333 (Wis. 1992). 475

defendant, while damages in a quantum meruit claim are measured by the reasonable value of the plaintiff’s services. 476 While JUUL Labs is correct that the District Courts in Wisconsin have construed unjust enrichment to require the plaintiff to have received something for nothing, the Wisconsin law relied upon does not support this requirement. The Wisconsin Supreme Court in Ramsey was distinguishing two causes of action and noting the different measure of damages – the value of services provided for quantum meruit and the benefit to the defendant in unjust enrichment. It was not addressing the question of whether overpayment satisfies the “receiving a benefit” element of unjust enrichment. JUUL Labs attempts to distinguish the cases cited by plaintiffs that support the conclusion that overpayment may satisfy the “receipt of a benefit” element by 477

Ramsey v. Ellis, 484 N.W.2d 331, 333 (Wis. 1992). 476 RB at 43-45. See In re Cardizem CD, 105 F. Supp.2d at 671 (overpayment for heart medication 477 was sufficient to state a claim for unjust enrichment where plaintiffs “alleged that they conferred a benefit, in the form of overpayments and increased profits, on Defendants, that Defendants accepted that benefit and that it would be unjust under the alleged circumstances for Defendants to retain that benefit.”) (applying laws of Ala., Cal., D.C., Ill., Mich., Minn., N.Y., N.C., Tenn., and Wis.); In re FCA US LLC Monostable Elec. Gearshift Litig., 280 F. Supp.3d 975, 1008-09 (E.D. Mich. 2017) (court recognized that a benefit was conferred on defendant in the form of inflated purchase price for cars); In re Generic Pharm. Pricing, 368 F. Supp.3d at 851 (the court held that plaintiffs “plausibly alleged that their alleged losses from purchasing Group 1 drugs at inflated prices are connected to benefits incurred by Defendants who allegedly conspired to raise the prices of those drugs.”) ) (applying laws of Alaska, Ark., Colo., Conn., De., Fla., Ga., Idaho, Ill., Ky., La., Md., Mass., Mo., Mont., N.J., Okla., Pa., P.R., R.I., S.C., Tex., Va., Wash., and Wyo.); Francis v.

Gen. Motors, LLC, 504 F. Supp.3d 659, 693 (E.D. Mich. 2020) (quoting In re FCA US LLC, 280

1. Supp.3d at 1008-09) (“In this case, as the Court has held in prior similar consumer auto defect suits, ‘[t]he plaintiffs adequately have pleaded that the defendant received a benefit (the inflated prices paid by them for their cars), that it knew it received it, and that it would be unfair for the defendant to retain it (because of its wrongful concealment of the defective [transmission] design,

arguing that these cases involved antitrust litigation and the defendants did not make the argument that JUUL Labs is making here. Even if the factual scenario is different in these cases, JUUL Labs offers no policy reason why the same principle should not apply to the facts here. The Court finds that the District Court cases do not accurately reflect Wisconsin law and the authority cited by plaintiffs is persuasive. It is JUUL Labs’ 478 burden so show that plaintiffs’ claims are not reasonably conceivable. It has failed to meet that burden. The Court finds that plaintiffs’ allegation of overpayment is sufficient to state a claim for unjust enrichment.

1. Negligence and Gross Negligence
2. Rule 9(b) Particularity Requirement JUUL Labs argues that plaintiffs fail to allege negligence and gross negligence with the particularity required by Rule 9(b). Plaintiffs contend that they have put 479 forward sufficient factual allegations to fulfill the particularity requirement. 480

which all of the plaintiffs alleged would have led them to reconsider the purchase of their car, or to have paid less for it).’”); In re K-Dur, 338 F. Supp.2d at 544 (“Here, Schering’s payments to Upsher and ESI flow from, and are related to, the anti-competitive conduct alleged by Plaintiffs. Plaintiffs’ purchase of K–Dur constituted a benefit conferred on Defendant Schering, in the form of monetary payments.”) (applying laws of fifty states, D.C., and P.R.). Because JUUL Labs’ argument fails under the authority it relied on in its Opening Brief, the 478 Court need not address the new arguments it raised in its Reply Brief. OB at 110. 479 AB at 120. 480

Under Rule 9(b), negligence claims must “be stated with particularity,” which requires some indication of the time and place of the alleged injuries. To satisfy 481 this requirement plaintiffs must allege “(1) what duty, if any was breached; (2) who breached it; (3) what act or failure to act breached the duty; and (4) the party upon whom the act was performed.” 482 Gross negligence “requires a showing of negligence that is a ‘higher level’ of negligence representing extreme departure from the ordinary standard of care.” 483 To plead gross negligence with the requisite particularity a “plaintiff must articulate ‘facts that suggest a wide disparity between the process [ ] used ... and that which would have been rational.’” 484 Plaintiffs allege that “[JUUL Labs] had a duty of reasonable care in designing, manufacturing, assembling, inspecting, testing, packaging, labeling, marketing, advertising, promoting, supplying, distributing and/or selling JUUL to avoid causing harm to those that consumed JUUL Products.” JUUL Labs “knew or should have 485

Del. Super. Civ. R. 9(b); Archie v. 4520 Corp., Inc., 2003 WL 832549, at *1 (Del. Super. Mar. 481 3, 2003). Ward v. Del. State Police, 2022 WL 351205, at *7 (Del. Super. Feb. 4,2022). 482 Tews v. Cape Henlopen Sch. Dist., 2013 WL 1087580, at *2 (Del. Super. Feb. 14, 2013) (quoting 483Hughes v. Christina Sch. Dist., 2008 WL 73710, at *4 (Del. Super. Jan. 7, 2008)).

J.L. v. Barnes, 33 A.3d 902, 916 n.77 (Del. Super. 2011) (quoting In re Walt Disney Co. 484Derivative Litig., 907 A.2d 693, 750 n.429 (Del. Ch. 2005)) (emphasis in original) (finding that

where a complaint devotes multiple pages to specific allegations detailing defendants’ failures, their knowledge of dangerous conditions, and facts giving rise to that knowledge gross negligence was sufficiently pled). Bean Compl. ¶¶ 114, 173, 199, 292, 294, 303, 306, 493. 485

known through the exercise of reasonable care” the risks of addiction, underage 486 attraction and use of the products, and the risk of physical harm with reasonably foreseeable use. Plaintiffs further allege that JUUL Labs breached these duties by 487 failing to perform adequate testing to ensure safety; failing to warn about the inadequacy of the testing; failing to use reasonable care in the design, production, manufacture, assembly, advertising, promoting, and marketing; using a design that maximizes nicotine delivery; failing to inspect the products for unsafe doses of nicotine; and failing to warn of the actual nicotine content. Plaintiffs allege that 488 JUUL Labs intentionally targeted youths, knew the dangers associated with its 489 product’s pharmacokinetic profile, and knew its advertisements were deceptive 490 and misleading to consumers. Plaintiffs also allege that despite knowing the 491 safety issues, JUUL Labs sold the product, unreasonably risking the health and safety of its consumers. The complaints contain detailed facts of studies and marketing 492 campaigns to allege how JUUL Labs beached its duties. These allegations, taken as

“Malice, intent, knowledge and other condition of mind of a person may be averred generally.” 486 Super. Ct. Civ. R. 9(b). Bean Compl. ¶¶ 116, 128, 130, 148, 151, 154, 184-88, 199-200, 494-501. 487 Id. ¶¶ 116, 128, 130, 148, 151, 154, 184-88, 199-200, 504. 488 See, e.g., id. ¶¶ 116, 138, 155, 163, 166-68, 179, 182-83, 205, 222-90. 489 See, e.g., id. ¶¶ 148-54, 173, 181-96. 490 See, e.g., id. ¶¶ 197-221. 491 See, e.g., id. ¶¶ 116, 138, 148-55, 166-68, 173, 179, 181-83, 197-290. 492

a whole, meet the particularity requirement and the motion to dismiss on this 493 ground is denied.

1. Gross Negligence as an Independent Cause of Action JUUL Labs argues Alabama, California, Indiana, Iowa, Kansas, Maine, Michigan, Minnesota, Missouri, New Mexico, Pennsylvania, Rhode Island, South Dakota, Wisconsin, and Wyoming do not recognize gross negligence as a separate cause of action. Plaintiffs counter that while this is true, the assertion of gross 494 negligence serves as a predicate for recovering exemplary or punitive damages. 495 The claims for gross negligence in these states are dismissed. However, the allegations in the complaints under Alabama, Indiana, Kansas, New Mexico, and North Dakota law may remain in the complaints as a basis for asserting punitive damages, which are permitted in these states. 496

Pfeifer v. Johnson Motor Lines, Inc., 89 A.2d 154, 157 (Del. Super. 1952); In re Benzene Litig., 493 2007 WL 625054, at *6 (Del. Super. Feb. 26, 2007) (“When pleading negligence, the plaintiff must ‘allege only sufficient facts out of which a duty is implied and a general averment of failure to discharge that duty.’”). OB at 112. 494 AB at 123 n.30. 495 Porter Coal Co. v. Davis, 165 So. 93, 96 (Ala. 1935) (“For a tort committed willfully or 496 wantonly or with malice, fraud, gross negligence, or oppression, punitive damages may be recovered”); Prudential Ins. Co. of Am. v. Executive Estates, Inc., 369 N.E.2d 1117, 1132 (Ind. Ct. App. 1977) (holding gross negligence may be sufficient to fulfill “heedless disregard of the consequences” standard for punitive damages); Johnson v. Geer Real Estate Co., 720 P.2d 660, 663 (Kan. 1986) (“Punitive damages are permitted whenever the elements of fraud, malice, gross negligence or oppression mingle in the controversy.”); Gonzales v. Sansoy, 703 P.2d 904, 906 (N.M. Ct. App. 1984) (“gross negligence remains a sound basis for awarding punitive damages”);

Schaffer v. Edward D. Jones & Co., 552 N.W.2d 801, 806 n.3 (S.D. 1996) (must show something

more than mere negligence).

1. Strict Liability

2. No Cause of Action
   JUUL Labs argues, and plaintiffs concede, Delaware, Michigan, North Carolina, and Virginia do not recognize strict liability in products liability cases. 497 Therefore, the strict liability claims asserted in these states are dismissed.

3. Defective Design
   JUUL Labs contends that plaintiffs’ strict liability claim based on a design defect must be dismissed because plaintiffs allege both a failure to warn and a design defect, which are distinct theories of liability. Plaintiffs acknowledge the “failure 498 to warn language within the complaints but contend that the inclusion of this language is a typographical error. To the extent that the complaints assert a design 499 defect for failure to warn claim, they are dismissed. JUUL Labs further argues that plaintiffs’ claims of design defect are based on the very purpose of the product—to inhale and deliver nicotine—therefore, they cannot be defective. JUUL Labs relies on cases that find cigarettes, which are 500

meant to inhale nicotine, as not defective because they are designed to deliver

nicotine, and urges the Court to adopt this reasoning. JUUL Labs further argues that

OB at 114-16; AB at 130 n.32. 497 OB at 116. 498 AB at 124 n.31. 499 OB at 117-18. 500

JUUL products cannot be defectively designed just because they cause a risk of harm. 501 Plaintiffs respond that the design defect claims are not based on nicotine being in the product but rather, the other harmful ingredients that were designed with a “pharmacokinetic profile engineered to create risks of abuse and addiction.” Their 502 claims are based on the unsafe nature of the e-liquid because the flavoring and other chemical additives carry a significant risk of toxicity and injuries. 503 further argue that their claims assert that the JUUL products could be safer by reducing the level of nicotine or formulating a less potent and addictive form of nicotine, which they argue is sufficient to state a claim. 504 Plaintiffs argue that unlike traditional cigarettes, electronic nicotine delivery systems, like JUUL, are not widely known to be costly to one’s health and JUUL 505 Labs marketed these devices as “safer alternative[s] to cigarettes.” Traditional 506 cigarette case law, plaintiffs continue, is not instructive because cigarettes have been subject to government oversight and regulation for decades, and the general population is well aware of the inherent risks with traditional cigarettes. Instead, plaintiffs point the Court’s attention to two decisions from the Colgate v. JUUL Labs,

Id. at 119-20. 501 AB at 123. 502 Id. at 124. 503 Id. 504 Id. at 125. 505 Id. at 126. 506

Inc. litigation, where the Northern District of California decided this strict liability 507

question. 508 While the standard for a design defect varies among the states, it appears (and JUUL Labs does not dispute) that some iteration of the consumer expectation test and/or the risk-benefit test is generally applied. Under the consumer expectation 509 test, a product is defective if it fails to perform as safely as an ordinary consumer would expect when used in a reasonably foreseeable manner. Under the risk- 510 benefit test, a product is defective if its design proximately causes injury and defendant fails to show that the benefits of the design outweigh its inherent risks. 511 The Restatement (Second) of Torts § 402A (strict liability), comment g. states: “The defective condition may arise not only from harmful ingredients, not characteristic of the product itself either as to presence or quantity, but also from foreign objects contained in the product, from decay or deterioration before sale, or from the way in which the product is prepared or packed.” Comment i. on unreasonably dangerous states, in part: “The article sold must be dangerous to an

Colgate v. JUUL Labs, Inc., 345 F. Supp.3d 1178 (N.D. Cal. 2018) (“Colgate I”); Colgate II, 507 402 F. Supp.3d 728. AB at 125-28. 508 See Colgate I, 345 F. Supp.3d at 1192-93 (applying Cal. law); Tincher v. Omega Flex Inc., 104 509 A.3d 328, 417 (Pa. 2014) (“we hold that, in Pennsylvania, the cause of action in strict products liability requires proof, in the alternative, either of the ordinary consumer’s expectations or of the risk-utility of a product.”); Walker v. Ford Motor Co., 406 P.3d 845, 848-51 (Colo. 2017) (noting the two tests, which apply in different circumstances). Colgate I, 345 F. Supp.3d at 1192-93. 510 Id. 511

extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” 512 In Colgate, JUUL Labs made the same argument it makes here—plaintiffs cannot allege a valid design defect claim because the product functioned as intended to deliver nicotine. Applying the consumer expectation test, the court found 513 plaintiffs have stated a claim for design defect based on the allegation that JUUL’s pods contain 6.2% nicotine salt, rather than the 5% nicotine advertised. [] Plaintiffs have sufficiently alleged that JUUL’s pods do not perform as safely as an ordinary consumer would expect because each inhalation would deliver 20% more nicotine than they would reasonably expect from JUUL’s representations. 514 The court rejected JUUL Labs’ argument that the product cannot be defective simply because it contains nicotine because the alleged defect was not the 515 presence of nicotine itself, but the higher-than-expected nicotine concentration. 516 In Colgate II, the court addressed a later-filed consolidated class action 517 complaint, which also alleged a defective design based on the product delivering nicotine in a manner that made it more addictive than consumers would reasonably

Comment i. provides examples, including: “Good whiskey is not unreasonably dangerous 512 merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fuel oil, is unreasonably dangerous.” Colgate I, 345 F. Supp.3d at 1193. 513 Id. at 1192-93. 514 Id. 515 Id. 516 In the first case, the Colgate court addressed claims asserted by 13 individuals in seven states. 517

expect. JUUL Labs again argued the alleged defects were inherent to the 518 product. The court rejected JUUL Labs’ arguments for a second time, noting that 519 the issue is a puff that delivered more nicotine than a combustible cigarette, directed The Colgate court distinguished the cigarette cases relied at excessive potency. 520 on by JUUL Labs on the basis that they were in a different procedural posture (after trial or on summary judgment) and therefore, they were not persuasive. 521 Accordingly, the court denied JUUL Labs’ motion to dismiss those claims. This Court finds that, consistent with the Colgate decisions, plaintiffs adequately allege a design defect. The complaints allege that the JUUL products were defectively designed because they delivered high levels of nicotine (exceeding that of combustible cigarettes), were engineered with a pharmacokinetic profile that increased the risk of abuse and addiction, and included harmful ingredients and 522 unsafe flavoring additives. Thus, plaintiffs’ claims are not simply based on the 523 presence of nicotine. Cases cited by JUUL Labs do not change this result. For

Colgate II, 402 F. Supp.3d at 753. Specifically, plaintiffs contended that JUUL engineered its 518 products to reduce the traditional “throat hit,” thereby masking the strength of the nicotine while increasing its addictive potential. They argued that JUUL Labs could have adopted a safer alternative design—such as using a less addictive freebase nicotine formulation—and that the risks of heightened addiction outweighed any benefits, particularly given JUUL Labs’ stated purpose of serving as a cigarette alternative for adult smokers. Id. 519 Id. 520 Id. 521 Bean Compl. ¶¶ 363-68. 522 Id. 523

example, in King v. Phillip Morris, Inc., the court dismissed the claim to the extent 524 it was relying on the dangers of tobacco. But, it refused to dismiss a defective cigarette design claim based on product manipulation, finding that: the plaintiff here is not relying on an allegation of the general danger of tobacco; she has alleged that the defendants’ cigarettes were defective and unreasonably dangerous. The plaintiff bases her claim on the allegation that the defendants designed their product to be more addictive than plain tobacco by blending tobacco with nicotine and other chemicals. 525 The King court also distinguished Buckingham v. R.J. Reynolds Tobacco

Co., also relied on by JUUL Labs. Unlike here, Buckingham’s claim was based 526

solely on the dangers of tobacco. 527 The motion to dismiss the design defect claims is denied.

1. Preemption of Warning Claims Reyling on In re Fontem US, Inc., JUUL Labs asserts that plaintiffs’ strict 528 liability claims based on the product’s labeling or packaging are expressly preempted by the Family Smoking Prevention and Tobacco Control Act (the “Tobacco Control Plaintiffs urge this Court to follow the ruling in In re JUUL Labs, Inc., Act”).529

2000 WL 34016358 (N.H. Super. Nov. 2, 2000). 524 King, 2000 WL 34016358, at *8. 525 713 A.2d 381 (N.H. 1998). 526 Buckingham, 713 A.2d at 383-84. See also RJ Reynolds Tobacco Co. v. Nelson, 353 So. 3d 87, 527 93 (Fla. Dist. Ct. App. 2022) (on appeal from denial of defendant’s motion for directed verdict, plaintiff’s claim, based on the product containing tobacco and nicotine, failed as a matter of law because he presented no competent evidence that anything was “wrong” with the product). 2016 WL 6520142 (C.D. Cal. Nov. 1, 2016). 528 OB at 120-24. 529

Mktg., Sales Pracs., & Prods. Liab. Litig., where the court found the design defect 530

claims were not expressly preempted. Preemption is governed by the Supremacy Clause which states “[i]f federal law ‘imposes restrictions or confers rights on private actors[] and []a state law confers rights or imposes restrictions that conflict with federal law,[] the federal law takes precedence and the state law is preempted.’” “Express preemption is found 531 when Congress ‘enact[s] a clear statement to that effect.’” 532 The Third Circuit has articulated two guiding principles for a court’s preemption inquiry: First, the intent of Congress is the ‘ultimate touchstone’ of preemption analysis.” []. This requires examination of Congress’s express statements as well as the “structure and purpose of the statute as a whole, as revealed . . . through the reviewing court’s reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law.” []Second, there is a presumption against preemption such that “Congress did not intend to preempt state law absent evidence of a ‘clear and manifest’ intent.” 533

AB at 128; 497 F. Supp.2d 552 (N.D. Cal. 2020). 530 In re JUUL Labs, Inc., 497 F. Supp.3d at 585 (quoting Kansas v. Garcia, 589 U.S. 191, 202 531 (2020)).

Id. (quoting In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., and Prods. Liab. Litig., 959 532 Cir. 2020)); Gonzales v. State, 207 A.3d 147, 154 (Del. 2019) (“Express F.3d 1201, 1211 (9 th

preemption occurs when Congress preempts state law ‘in express terms.’”). Lara v. Cool Clouds Distb. Inc., 2021 WL 613842, at *7 (D.N.J. Feb. 2, 2021) (quoting Farina 533v. Nokia Inc., 625 F.3d 97, 115 (3d Cir. 2010), Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996),

and Freedman v. Redstone, 753 F.3d 416, 430 (3d Cir. 2014)).

The FDA regulates tobacco products under the Tobacco Control Act. In 534 2016, the scope of the act was broadened to deem electronic nicotine delivery systems (“ENDS”), such as JUUL, to be “tobacco products.” The act expressly 535 preempts a state from enacting or enforcing “any requirement which is different from, or in addition to, any requirement under the provisions of this subchapter relating to tobacco product standards, premarket review, adulteration, misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco products.” 536 The act and the regulations, however, carve out areas where state action (and related claims) are expressly permitted, through an exception. The preemption in subparagraph A does not apply: to requirements relating to the sale, distribution, possession, information reporting to the State, exposure to, access to, the advertising and promotion of, or use of, tobacco products by individuals of any age, or relating to fire safety standards for tobacco products…. 537 In this framework, the court In re JUUL Labs reiterated its prior ruling that plaintiffs’ product labeling claims based on the “presence or absence of false and misleading disclosures about nicotine addiction and failure to warn theories” were

21 U.S.C. §§ 387 et. seq. 534 81 Fed. Reg. 28973 (2016). 535 21 U.S.C. §§ 387p(a)(2)(A) (emphasis added). 536 21 U.S.C. § 387p(a)(2)(B). 537

preempted. The court then rejected JUUL Labs’ argument that plaintiffs’ warning 538 claims relating to nicotine addiction and the product being a reasonable alternative to combustion cigarettes would impose requirements “different or additional” than that required by the FDA and therefore, these claims are preempted as well. The court explained that the only relevant FDA labeling requirement currently in place for ENDS is the “minimum” nicotine addiction warning. The court reasoned that 539 to accept JUUL Labs’ position would be contrary to the exception clause which preserves the states’ “requirements relating to the sale, distribution, possession, …, exposure to, access to, the advertising and promotion of, or use of, tobacco products by individuals of any age….” Accordingly, other than the minimum warnings, the 540 court could not determine what might be “different from or in addition to” standards that the FDA might adopt in the future. 541

In re Fontem found that the FDA promulgated labeling requirements for

ENDS relating to nicotine and its addictiveness, the same as JUUL Labs. The

In re JUUL Labs, Inc., 497 F. Supp.3d at 585 (citing Colgate I, 345 F. Supp.3d at 1189); Colgate 538II, 402 F. Supp.3d at 752 (failure to warn claims based on lack of labelling were preempted).

In re JUUL Labs, Inc., 497 F. Supp.3d at 588 (stating that 21 C.F.R. § 1143.3(a)(1) requires a 539 label to include: “WARNING: This product contains nicotine. Nicotine is an addictive chemical.”). Id. 540 Id. at 589 (“plaintiffs are correct that omissions of ‘deadly safety defects’ that they contend 541 should have been made under state law duties are not expressly preempted, other than any related to the minimum nicotine addiction warning from the labels of the JUUL products. If and when the FDA issues additional labelling requirements, this argument can be reassessed.”); Colgate I, 345

1. Supp.3d at 1189 (“To the extent that plaintiffs’ causes of action are based on the allegation that JUUL mislabels the dosage of nicotine on its pods at 5% when the dosage of nicotine is higher than 5%, these causes of action are not preempted by the TCA and FDA Rule.”).

Fontem court, however, found the exception clause was not broad enough to save

plaintiffs’ claims from preemption. The court read the act to preempt “any requirement relating to ‘labeling,’” but excepted only “requirements relating to ‘exposure to’ or ‘use of’ tobacco products.” The court then found that plaintiffs’ 542 claims in that case (violations of various consumer protection laws) were about 543 disclosure of information and not “exposure to tobacco products.” The court 544 described plaintiffs’ claims as: acts by Defendants of warning of certain risks relating to nicotine, and listing of ingredients (but not “hidden ingredients”) on Defendants’

products’ packaging and impliedly representing that those are the only

health-related risks related to the Defendants’ e-cigarettes. []Consequently, these claims are premised on what is, and what is not, included on the product’s label. [Therefore,] these claims are preempted by the prohibition on additional or different labeling requirements. 545

JUUL Labs recognized the ruling in Fontem, but declined to follow it because

“the scope of any specific preemptive effect is better considered when and if the FDA actually issues standards.” 546

In re Fontem US, Inc., 2016 WL 6520142, at *6. 542 The complaint asserted claims for: (I) Violations of the Consumer Legal Remedies Act, (II) 543 Violations of Unfair Competition Law, (III) Violation of False Advertising Law for Deceptive, False, and Misleading Advertising, (IV) Violations of UCL based on violations of Proposition 65, (V) Violation of New York General Business Law, (VI) Fraudulent Concealment under Illinois Law, and (VII) Violations of the Illinois Consumer Fraud and Deceptive Business Practices Act. In re Fontem US, Inc., 2016 WL 6520142, at *6. 544 Id. (emphasis in original). 545 In re JUUL Labs, Inc., 497 F. Supp.3d at 589 n.18. 546

Plaintiffs allege that the JUUL products are defective because JUUL Labs failed to provide adequate warnings on its labeling and packaging relating to other health hazards, exposing users to serious health risks, including lung, cardiovascular, neurological, and mental health injuries, and nicotine content prior to 2017. 547 The Court finds that beyond labeling for nicotine and its addictiveness, plaintiffs’ claims are not preempted. The reasoning in JUUL Labs persuasive. In this Court’s view, permitting states to regulate labeling outside of nicotine content and addictiveness gives effect to the exception clause. JUUL Labs does not address the exception clause in its arguments. The Fontem decision appears to read the exception clause narrowly, which seems inconsistent with not finding preemption absent a “clear and manifest intent” to expressly preempt states from regulating labels.

1. Product Liability Acts Abrogate Personal Injury Claims JUUL Labs argues that the product liability statute in Indiana, Kansas, Mississippi, New Jersey, Ohio, and Washington bars the Davis plaintiffs’ claims for breach of implied warranty of merchantability sounding in tort, strict liability,

Bean Compl. ¶¶ 381-83. 547

negligence, and gross negligence. This is so because plaintiffs allege physical 548 injury, which falls within the province of the acts. 549 The Davis plaintiffs do not dispute that their personal injury claims are abrogated, but argue that they have sufficiently alleged facts to meet the pleading requirement under the respective state’s product liability acts. Plaintiffs request that these claims not be dismissed, but instead be considered claims pled under the respective acts. Plaintiffs further argue that these states’ statutes do not abrogate 550 common law claims for economic loss (as opposed to personal injury). The Court declines plaintiffs’ request to rewrite their complaints. With the number of plaintiffs in these cases and various states’ laws at issue, plaintiffs are

OB at 124-29. 548 Ind. Code § 34-20-1-1 (governs actions which are “(1) brought by a user or consumer; (2) 549 against a manufacturer or seller; and (3) for physical harm caused by a product; regardless of the substantive legal theory or theories upon which the action is brought.”); Kan. Stat. § 60-3302(c) (covers all claims “brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product.”); Miss. Code § 11-1-63 (“any action for damages caused by a product, including, but not limited to, any action based on a theory of strict liability in tort, negligence or breach of implied warranty, except for commercial damage to the product itself”); N.J. Stat. § 2A:58C-1(b)(3) (“any claim or action brought by a claimant for harm caused by a product, irrespective of the theory underlying the claim, except actions for harm caused by breach of an express warranty.”); Ohio Rev. Code § 2307.71(A)(13) (covers claims that “seek[] to recover compensatory damages from a manufacturer or supplier for death, physical injury to person, emotional distress, or physical damage to property other than the product in question”); Wash. Rev. Code § 7.72.010(4) (“any claim or action brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product.”). AB at 130-31 550

required to properly state their cause of action. Moreover, plaintiffs cannot amend their complaints through their brief. Accordingly, the claims are dismissed. 551 There are, however, some limitations to the abrogation of common law claims. Many of the acts expressly do not cover economic losses and Indiana and 552 Washington courts have held that their products liability act does not cover economic losses. Plaintiffs’ breach of implied warranty and common law claims for 553 economic damages fall outside the product liability act’s reach in each state. 554 Therefore, these claims are not dismissed.

Standard Gen. L.P. v. Charney, 2017 WL 6498063, at *25 (Del. Ch. Dec. 19, 2017), judgment 551entered, (Del. Ch. 2018), and aff'd, 195 A.3d 16 (Del. 2018); Appleby Apartments, LP v. Appleby Apartments Associates, LP, 2023 WL 2728773, at *4 n.49 (Del. Ch. Mar. 31, 2023).

Kan. Stat. § 60-3302(d) (harm does not include economic losses); Miss. Code § 11-1-63 552 (“except for commercial damage to the product itself”); Ohio Rev. Code § 2307.71(A)(13) (does not cover harm to the product itself); N.J. Stat. § 2A:58C-1(b)(2) (does not cover harm to the product itself). Gunkel v. Renovations, Inc., 822 N.E.2d 150, 153 (Ind. 2005) (“under the Products Liability 553 Act and under general negligence law is that damage from a defective product or service may be recoverable under a tort theory if the defect causes personal injury or damage to other property, but contract law governs damage to the product or service itself and purely economic loss arising from the failure of the product or service to perform as expected” ); Touchet Valley Grain Growers,

Inc. v. Opp & Seibold Gen. Const., Inc., 831 P.2d 724, 733 (Wash. 1992) (“The WPLA confines

recovery to physical harm of persons and property and leaves economic loss, standing alone, to the Uniform Commercial Code.”). Kan. Stat. § 60-3302(d) (harm does not include economic losses); Miss. Code § 11-1-63 554 (“except for commercial damage to the product itself”); Ohio Rev. Code § 2307.71(A)(13) (does not cover harm to the product itself); N.J. Stat. § 2A:58C-1(b)(2) (does not cover harm to the product itself); Gunkel, 822 N.E.2d at 153 (“under the Products Liability Act and under general negligence law is that damage from a defective product or service may be recoverable under a tort theory if the defect causes personal injury or damage to other property, but contract law governs damage to the product or service itself and purely economic loss arising from the failure of the product or service to perform as expected”); Touchet Valley Grain Growers, Inc., 831 P.2d at 733 (“The WPLA confines recovery to physical harm of persons and property and leaves economic loss, standing alone, to the Uniform Commercial Code.”).

Finally, JUUL Labs contends that the Louisiana Products Liability Act subsumes plaintiffs’ common-law fraud and breach of implied warranty of merchantability claims. Plaintiffs concede this point, but assert that they have 555 alleged their claims under the statute. Accordingly, to the extent they are pled, the 556 Louisiana plaintiffs’ common-law fraud and breach of implied warranty claims are be dismissed. 557

1. Statute of Limitations in Puerto Rico and Louisiana Puerto Rico establishes “a one-year statute of limitations for tort-based actions, as well unjust enrichment, fraud, and other non-contractual claims.” 558 Louisiana has a one-year statute of limitations for breach of implied warranty of merchantability and redhibition claims. 559

OB at 129-30; Touro Infirmary v. Sizeler Architects, 947 So. 2d 740, 744 (La. Ct. App. 2006) 555 (“Courts have consistently held [Louisiana’s PLA] subsumes all possible causes of action, with the exception of a claim in redhibition.”); La. Stat. § 9:2800.58 (The Louisiana Products Liability Act “subsumes all possible causes of action, with the exception of a claim in rehibition.”). Ayers Compl. ¶¶ 407-16. 556 La. Stat. § 9:2800.58 (The Louisiana Products Liability Act “subsumes all possible causes of 557 action, with the exception of a claim in rehibition.”). TBB Int’l Bank Corp. v. Oliveros-Febres Cordero, 1014 WL 3924670, at *6 (D.P.R. August 23, 558

1. (citing Article 1868, PR Laws Ann. Tit. 31, § 5298 (repealed)) (“The current version of the Puerto Rico Civil Code, Act No. 55 of June 1, 2020, codified as 31 L.P.R.A. § 5311 et seq., entered into force on November 28, 2020, but has no official English translation.”). La. Civ. Code art. 2498; La. Civ. Code art. 2534(B); see also Leo v. Jeld-Wen, Inc., 835 F. App’x 559 727, 729 (5th Cir. 2020) (“[A] one-year statute of limitations applies to redhibition claims against the manufacturer of the defective thing.”).

JUUL Labs argues that because the California action opt-out date was July 14, 2023, and plaintiffs from Puerto Rico and Louisiana filed their claims on October 18, 2024, their claims are barred by the applicable statute of limitations. 560 In response, plaintiffs do not contest the limitations period, but contend that JUUL Labs fails to argue when plaintiffs’ claims actually accrued and “simply 561 assumes they accrued before or during the class action tolling period . . ..” 562 If claims are untimely based on the statute of limitations, the plaintiff “bear[s] the burden of pleading specific facts demonstrating that the statute was, in fact, tolled.” As noted above, plaintiffs in a putative class action have the benefit 563 of tolling the statute of limitations before the putative class members are permitted to opt-out. These cases were filed more than 1 year after the end of the California 564 opt-out period. The complaints, however, allege no facts to toll the statute of limitations. Plaintiffs bear the burden to plead facts leading to a reasonable inference that a tolling doctrine applies. In the complaints, plaintiffs allege that any applicable 565 statute of limitation wase tolled under the discovery rule and the doctrine of

OB at 130-32. 560 AB at 135-36. 561 Id. at 135. 562 In re Dean Witter P'ship Litig., 1998 WL 442456, at *6 (Del. Ch. July 17, 1998), aff'd, 725 A.2d 563 441 (Del. 1999). See section IV(A)(2)(b), supra. 564 Krishna v. Asura Dev. Grp., Inc., 2017 WL 1103013, at *4 (Del. Super. Mar. 24, 2017). 565

fraudulent concealment, yet they provide no facts supporting these allegations for 566 these particular plaintiffs. 567 The complaints also assert that the statute of limitations was tolled during the pendency of the class action. While true, plaintiffs do not allege any facts to toll 568 the statute of limitations when it started after the opt-out period. Accordingly, Puerto Rico plaintiffs’ tort-based claim, unjust enrichment, fraud, and other non-contractual claims are dismissed as untimely. The Louisiana plaintiffs’ breach of implied 569 warranty of merchantability and redhibition claims are also time-barred.

1. Hawaii Plaintiffs’ Claims for Redhibition JUUL Labs argues, and plaintiffs concede, that Hawaii plaintiffs’ 570 redhibition claims are not recognized under Hawaii law. Accordingly, Hawaii 571 plaintiffs’ claims of redhibition are dismissed.

See Bean Compl. ¶ 859. 566 See id. ¶¶ 860-62. 567 See id. ¶ 869. 568 TBB Int’l Bank Corp., 1014 WL 3924670, at *6 (citing Article 1868, PR Laws Ann. Tit. 31, § 569 5298 (repealed)) (“The current version of the Puerto Rico Civil Code, Act No. 55 of June 1, 2020, codified as 31 L.P.R.A. § 5311 et seq., entered into force on November 28, 2020, but has no official English translation.”). Plaintiffs failed to respond to this argument. 570 See Ayers Compl. ¶¶ 333-349; Hawaii v. Bristol-Myers Squibb Co., 2014 WL 3427387, at *14 571 (D. Haw. July 15, 2014) (“redhibition” is “a cause of action unique to Louisiana”).

1. Leave to Amend
   Plaintiffs seek leave to amend their complaints to cure any pleading deficiencies. Civil Rule 15 provides that leave to amend a complaint “shall be 572 freely given when justice so requires.” “On the absence of prejudice to another 573 party, the [Court] is required to exercise its discretion in favor of granting leave to amend.” A motion to amend may be denied if the proposed amendment would be 574 futile. 575 JUUL Labs does not argue futility or prejudice. Accordingly, plaintiffs may amend the claims dismissed for insufficient pleading (and not a matter of law). The request for leave to amend is GRANTED.

2. CONCLUSION
   JUUL Labs’ motion to dismiss on forum non conveniens is DENIED and under Rule 12(b)(6) is DENIED, in part and GRANTED, in part. JUUL Labs’ motion to dismiss based on misjoinder is DENIED. JUUL Labs’ motion under Rule 20 is GRANTED, in part and the claims are SEVERED.

AB at 136. 572 Del. Super. Civ. R. 15. 573 Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258, 263 (Del. 1993) (citing Ikeda v. 574Mollock, 603 A.2d 785, 787-88 (Del. 1991)).

NACCO Indus., Inc. v. Applica Inc., 2008 WL 2082145, at *1 (Del. Ch. May 7, 2008). 575

Plaintiffs’ request for leave to amend is GRANTED.

IT IS SO ORDERED. /s/Kathleen M. Miller

Kathleen M. Miller, Judge