United States District Court, S.D. New York
PHILIP BRADY and DUNCAN SMITH individually and on behalf of other similarly situated individuals, Plaintiffs,
ANKER INNOVATIONS LIMITED; ANKER TECHNOLOGY CORPORATION; POWER MOBILE LIFE, LLC; and FANTASIA TRADING, LLC D/B/A ANKER DIRECT, Defendants.
OPINION & ORDER
S. ROMAN UNITED STATES DISTRICT JUDGE.
Philip Brady ("Brady") and Duncan Smith
("Smith") (together, "Plaintiffs"), on
behalf of themselves and all others similarly situated, bring
this putative class action against Defendants Anker
Innovations Limited, Anker Technology Corporation, Power
Mobile Life, LLC, and Fantasia Trading, LLC, d/b/a Anker
Direct ("Fantasia") (collectively,
"Defendants"). (First Amend. Compl.
("FAC"), ECF No. 20.) Plaintiffs assert claims
under California's Consumer Legal Remedies Act
("CLRA"), Cal. Civ Code §§ 1750-85,
California's False Advertising Law ("FAL"),
Cal. Bus. & Prof. Code § 17500 et seq.,
California's Unfair Competition Law ("UCL"),
Cal. Bus. & Prof Code §§ 17200-17210, New
York's General Business Law ("GBL")
§§ 349-350, and several other materially identical
state consumer protection statutes. (Id.) Plaintiffs
also bring claims for beach of express warranty and unjust
before this Court is Defendants' motion to dismiss the
FAC for lack of personal jurisdiction and for failure to
state a claim. (ECF No. 26.) For the following reasons,
Defendants motion is GRANTED in part and DENIED in part.
following facts are taken from the FAC and deemed true for
purposes of the motion.
The Emergence of Power Banks and Their Uses
recent years, consumers have become increasingly dependent on
portable electronic devices (“PEDs”), such as
phones, tablets, and laptop computers. (FAC ¶¶ 1,
24.) Like any other electronic devices, PEDs require power
and periodic recharging. (Id. ¶ 1.) Thus, the
portable charger industry emerged. (Id. ¶¶
portable charger, often called a power bank (“Power
Bank”), is a small, portable power source that
consumers can use to recharge PEDs. (Id.
¶¶ 2, 26.) In general, the greater the capacity of
a Power Bank, which is expressed in milliampere-hours
(“mAh”), the more times the Power Bank can be
used to recharge PEDs before the Power Bank itself must be
recharged. (Id. ¶¶ 2, 26.) For this
reason, consumers purportedly have a strong preference, and
are willing to pay a premium for, Power Banks with higher mAh
ratings. (Id. ¶¶ 2, 26.) Because of this
preference, most companies prominently feature the mAh rating
of Power Banks in the products' advertising.
(Id. ¶ 26.) It is Defendants'
representations about the mAh rating of their Power Banks
that is at the heart of this lawsuit. (Id.
Defendants Alleged Misrepresentations
manufacture, market, and distribute Power Banks.
(Id. ¶ 27.) Their Power Banks are sold directly
from Defendants' website, from Amazon.com, and from other
retailers. (Id.) At both the point of sale and on
their Power Banks' packaging, Defendants prominently
represent their Power Banks' power capacity as measured
in mAh. (Id.)
frequently use PEDs during travel and when they do not have
access to an electrical outlet. (Id. ¶¶
10, 12.) Therefore, Plaintiffs each purchased a Power Bank on
Amazon.com from Defendants. (Id. ¶¶ 9, 11,
28.) Specifically, on February 25, 2017, Brady purchased an
A1211 Astro E1 model Power Bank, which had an expressly
advertised “5200 mAh” capacity, and, on June 6,
2016, Smith purchased an A1371 Powercore model Power Bank,
which had an expressly advertised “20100 mAh.”
(Id. ¶ 28.) Plaintiffs believed that the Power
Banks they purchased could deliver a charge to their PEDs
that was reflective of the advertised capacity. (Id.
their expectations, however, Plaintiffs came to realize that
the Power Banks they had purchased were incapable of
delivering the capacity that had been represented to them.
(Id.) As such, with the aid of a skilled and
experienced testing company, Plaintiffs' tested the Power
Banks. (Id. ¶ 30.) That testing revealed that
Defendants had substantially inflated their Power Banks'
mAh ratings. (Id.) For example, testing showed that
Brady's Power Bank, which had been advertised as having a
“5200 mAh” capacity, had an “Actual
Capacity” of 3285 mAh. (Id.) Similarly,
testing revealed that Smith's Power Bank, which had been
advertised as having “20100 mAh, ” had an
“Actual Capacity” of 12088 mAh. (Id.)
contend that Defendants knew the Power Banks' true
capacity was substantially lower than advertised.
(Id. ¶ 31.) Nevertheless, according to
Plaintiffs, Defendants misrepresented the true capacity to
get customers to pay a premium. (Id.) Through these
false and misleading misrepresentations, Defendants have
profited enormously. (Id. ¶ 32.) Even so,
Defendants' conduct notwithstanding, Plaintiffs would
consider purchasing Defendants' Products again if they
could trust that the representations about the mAh rating
were correct going forward, which could include redesigning
their Power Banks or changing prices to reflect the actual
mAh capacity of the battery. (Id. ¶¶ 10,
must dismiss an action against any defendant over whom it
lacks personal jurisdiction. See Fed. R. Civ. P.
12(b)(2). On a Rule 12(b)(2) motion to dismiss, the plaintiff
bears the burden of establishing, by a preponderance of the
evidence, that the court has jurisdiction over the defendant.
In re Methyl Tertiary Butyl Ether (“MTBE”)
Prod. Liab. Litig., 399 F.Supp.2d 325, 330 (S.D.N.Y.
2005). “Where, as here, a court relies on pleadings and
affidavits, rather than a full-blown evidentiary hearing, the
plaintiff need only make a prima facie showing that
the court possesses personal jurisdiction over the
defendant.” Id. (quoting Distefano v.
Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001)).
In ruling on a 12(b)(2) motion, a court may consider
materials outside the pleadings, including affidavits and
other written materials. MacDermid, Inc. v. Deiter,
702 F.3d 725, 727 (2d Cir. 2012); Bensusan Rest. Corp. v.
King, 937 F.Supp. 295, 298 (S.D.N.Y. 1996),
aff'd, 126 F.3d 25 (2d Cir. 1997). The court
assumes the verity of the allegations “to the extent
they are uncontroverted by the defendant's
affidavits.” MacDermid, Inc., 702 F.3d at 727
(internal quotations omitted). Nonetheless, all factual
doubts and disputes are resolved in the plaintiff's
favor. See A.I. Trad Fin., Inc. v. Petra Bank, 989
F.2d 76, 79-80 (2d Cir. 1993).
Rule 12(b)(6), courts must assess whether a complaint
“contain[s] sufficient factual matter . . . to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)); accord Hayden v. Paterson,
594 F.3d 150, 160 (2d Cir. 2010). A court must take all
material factual allegations as true and draw reasonable
inferences in the non-moving party's favor, but a court
is “‘not bound to accept as true a legal
conclusion couched as a factual allegation, '” or
to credit “mere conclusory statements” or
“[t]hreadbare recitals of the elements of a cause of
action.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555). In determining whether a
complaint states a plausible claim for relief, a district
court must consider the context and “draw on its
judicial experience and common sense.” Id. at
662. A claim is facially plausible when the facts pleaded
allow a court to make “a reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. at 678.
Motion to Dismiss for Lack of Personal Jurisdiction
have moved to dismiss the FAC on the basis that the Court
lacks personal jurisdiction as to each of the Defendants.
(Defs. Mem. of Law in Support of Mot. to Dismiss
(“Defs. Mot.”), ECF No. 27, at 5-12.) In opposing
Defendants' motion, Plaintiffs have informed the Court
that they do not oppose dismissal of Defendants Anker
Innovations Limited, Anker Technology Corporation, and Power
Mobile Life, LLC, for want of personal jurisdiction. (Pls.
Mem. of Law in Opp. to Defs. Mot. to Dismiss (“Pls.
Opp.”), ECF No. 29, at 2.) Accordingly, the Court
GRANTS this portion of Defendants' motion, thereby
dismissing Anker Innovations Limited, Anker Technology
Corporation, and Power Mobile Life, LLC, from the case,
without prejudice. See Smith v. United States, 554
Fed.Appx. 30, 32 n.2 (2d Cir. 2013) (“[A] dismissal for
want of personal jurisdiction is without prejudice.”
(citing Elfenbein v. Gulf & Western Indus.,
Inc., 590 F.2d 445, 449 (2d Cir. 1978)). The below
analysis is thus only applicable to Fantasia, the only
Relevant Facts Regarding Fantasia
doing business as AnkerDirect, is a subsidiary of Anker
Innovations and is organized under the laws of the state of
Delaware. (FAC ¶ 13; Decl. of Romeo Luo in Support of
Defs. Mot. to Dismiss (“Luo Decl.”), ECF No. 28,
at ¶¶ 29-30.) Its principal place of business is in
the state of California. (FAC ¶ 13; Luo Decl. ¶
29.) Fantasia does not have any property, offices, or
employees in New York, and it does not manufacture or store
any goods in New York. (Luo Decl. ¶¶ 31-33.) During
the purported class period, Fantasia marketed, imported,
distributed, warranted, and sold Defendants' Power Banks
throughout the United States. (FAC ¶ 13.) And, at all
relevant times, Fantasia was the account holder for the
AnkerDirect Amazon storefront on Amazon.com. (Luo Decl.
is listed as the “sole authorized seller of authentic
Anker products (other than Amazon) on the Amazon
platform.” (FAC ¶ 14.) To this end, Fantasia,
doing business as AnkerDirect, functions as the Anker
distributor in the United States. (Id. ¶ 15.)
It ships its products in bulk to Amazon's warehouses in
Washington state, in anticipation of consumer purchases on
Amazon.com. (Luo Decl. ¶ 34, 37.) Amazon then organizes
the products into product listings in a multitude of
categories. (Id. ¶ 34.) Once the product is
sold, Amazon ships it to the customer. (Id.) Orders
made on Amazon.com are fulfilled almost exclusively by
Amazon, except under exceptional circumstances. (Id.
¶ 36.) When a customer completes a purchase from the
Amazon storefront, they receive an email from AnkerDirect to
“[c]heck in about” the order. (FAC ¶ 16.)
of products listed on the AnkerDirect Amazon storefront
account for approximately 85% of Fantasia's sales. (Luo
Decl. ¶ 35.) But Fantasia also owns and operates a
website located at “www.anker.com” (the
“Anker Website”), which is hosted by Amazon Web
Services. (Id. ¶ 38.) It fulfills orders
completed on the Anker Website by shipping products from
Fantasia's warehouse in California. (Id. ¶
39.) Overall, approximately 10% of Fantasia's total,
worldwide sales are to New York residents. (Id.
Personal Jurisdiction Analysis
determining personal jurisdiction over a foreign defendant,
courts will follow a two-step inquiry. Licci ex rel.
Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 168
(2d Cir. 2013). First, courts assess “whether the
defendant is subject to jurisdiction under the law of the
forum state-here, New York.” Sonera Holding B.V. v.
Cukurova Holding A.S., 750 F.3d 221, 224 (2d Cir. 2014).
Second, courts “consider whether the exercise of
personal jurisdiction over the defendant comports with the
Due Process Clause of the United States Constitution.”
New York's Long-Arm Statute Analysis
that “Plaintiffs' allegations of personal
jurisdiction are so deficient that they do not even satisfy
due process, ” Defendants do not address whether New
York's long-arm statute, N.Y. C.P.L.R. § 302,
confers jurisdiction over Fantasia based on the sale of goods
through both its AnkerDirect Amazon storefront and the Anker
Website. (Defs. Mot. 6.) The issue warrants discussion.
New York's long-arm statute, “a court may exercise
personal jurisdiction over any non-domiciliary . . . who . .
. transacts any business within the state or contracts
anywhere to supply goods or services in the state.”
N.Y. C.P.L.R. § 302(a)(1). “To establish personal
jurisdiction under section 302(a)(1), two requirements must
be met: (1) [t]he defendant must have transacted business
within the state; and (2) the claim asserted must arise from
that business activity.” Licci, 732 F.3d at
168 (quoting Solé Resort, S.A. de C.V. v. Allure
Resorts Mgmt., LLC, 450 F.3d 100, 103 (2d Cir. 2006)).
This is a “single act statute, ” i.e.
“proof of one transaction in New York is sufficient to
invoke jurisdiction, even though the defendant never enters
New York, so long as the defendant's activities here were
purposeful and there is a substantial relationship between
the transaction and the claim asserted.”
Chloé v. Queen Bee of Beverly Hills, LLC, 616
F.3d 158, 170 (2d Cir. 2010) (quoting Kreutter v.
McFadden Oil Corp., 522 N.E.2d 40, 43 (N.Y. 1988)).
“Purposeful activities are those with which a
defendant, through violational acts, avails itself of the
privileges of conducting activities within the forum
State.” Eades v. Kennedy, PC Law Offices, 799
F.3d 161, 168 (2d Cir. 2015) (quoting Fischbarg v.
Doucet, 880 N.E.2d 22, 26 (N.Y. 2007)).
the first requirement, courts analyzing internet activity as
a basis for jurisdiction will typically look at “the
nature and quality of commercial activity that an entity
conducts over the Internet.” Best Van Lines, Inc.
v. Walker, 490 F.3d 239, 252 (quoting Zippo Mfg. Co.
v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D. Pa.
1999)). This involves the use of a “sliding
scale” test based on the level of a website's
interactivity. EnviroCare Techs., LLC v. Simanovsky,
No. 11-CV-3458 (JS)(ETB), 2012 WL 2001443 at *3 (E.D.N.Y.
June 4, 2012). Under this test, where a “website is
interactive and allows a buyer . . . to submit an order
online, courts typically find that the website operator is
‘transacting business'” in the forum state
and is thus subject to jurisdiction. Id. (citing
Hsin Ten Enter. USA, Inc. v. Clark Enters., 138
F.Supp.2d 449, 456 (S.D.N.Y. 2000)).
course, sellers, such as Fantasia, may not always directly
control the website that collects online orders. This,
however, does not necessarily defeat jurisdiction.
Id. at *3-4; Mopnado, 2016 WL 368166 at *7.
Indeed, courts within this circuit have concluded that
“[r]egularly offering and selling goods via an online
marketplace such as Amazon.com can provide a basis for
personal jurisdiction under CPLR § 302(a), even though
[d]efendants do not control their Amazon.com
‘storefront' or its interactivity to the same
extent that they control their own highly interactive
website.” Lifeguard Licensing Corp., 2016 WL
3748480 at *3. The primary consideration is whether the
vendor “use[s] [the storefront] ‘as a means for
establishing regular business with a remote
forum.'” Id. (quoting EnviroCare,
2012 WL 2001443 at *3).
the Court concludes that Plaintiffs have established that
Fantasia transacted business in New York. Fantasia was the
account holder for the AnkerDirect storefront on the Amazon
platform (Luo Decl. ¶ 34), and it represented itself as
the “sole authorized seller of authentic Anker
products” on that website. (FAC ¶ 14.) As was the
case in EnviroCare, even if it did not
“personally manage the website through which [it]
sold [its] products, ” Fantasia used these websites to
expand its nationwide reach. EnviroCare, 2012 WL
2001443 at *4 (citing Dedvukaj v. Maloney, 447
F.Supp.2d 813, 820 (E.D. Mich. 2006)). And in doing so, those
“internet-based activities established regular business
with foreign jurisdictions, including New York.”
Id. In any event, Fantasia also owns and
operates a website to sell Anker products. (Luo Decl. ¶
38; see also Decl. of D. Greg Blankenship
(“Blankenship Decl.”), ECF No. 30, Ex. B.)
Fantasia's direct operation of this website to fulfill
sales provides an alternate basis to conclude that the
company has transacted business in New York. See
Lifeguard Licensing, 2016 WL 3748480 at *3. Finally, it
does not matter that Fantasia's sales to New York only
account for 10% of its total, worldwide sales because, as
previously explained, a single act is sufficient to support
jurisdiction under N.Y. C.P.L.R. § 302(a). See
Hypnotic Hats, Ltd. v. Wintermantel Enters., LLC, No.
15-CV-06478 (ALC), 2016 WL 7451306, at *3 (S.D.N.Y. Dec. 27,
the second requirement, the Court has no trouble determining
that Plaintiff's claims arise from its business activity
in New York. The crux of Plaintiffs' allegations is that
Defendants, including Fantasia, deceived consumers about the
power capabilities of its products, which were advertised on