Mouzon v. Radiancy, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JAN MOUZON, et al.,
Plaintiffs
v. Civil Action No. 15-1142 (CKK)
RADIANCY, INC.,
Defendant
YESENIA OLIVO, et al.,
Plaintiffs
v. Civil Action No. 15-1926 (CKK)
RADIANCY, INC., et al.,
Defendants

MEMORANDUM OPINION and ORDER
(August 2, 2016)
This consolidated action represents the second coming of a putative class action

regarding the no!no! Hair removal device to this Court. The Court previously dismissed all of the

claims asserted in the original action, captioned Mouzon v. Radiancy and numbered 14-cv-722.

Mouzon v. Radiancy, Inc., 85 F. Supp. 3d 361, 367-68 (D.D.C. 2015) (“Mouzon I”). Specifically,

the Court dismissed certain claims with prejudice and others without prejudice. Id. The Court

then denied the request of the Mouzon I plaintiffs to amend that complaint to remedy the defects

that the Court had identified regarding the claims dismissed without prejudice. See id. at 387;

Mouzon v. Radiancy, Inc., 309 F.R.D. 60, 66 (D.D.C. 2015) (“Mouzon II”). Now, twelve out of

the thirteen original Mouzon I plaintiffs, together with additional plaintiffs, bring this putative

class action against Radiancy, Inc, and its CEO Dolev Rafaeli. 1 In the Consolidated Amended

1
After Mouzon I was dismissed, the case numbered 15-cv-1142 (Mouzon v. Radiancy, Inc.) was
filed in this District, and other plaintiffs filed a similar case in the Southern District of New York.
The latter case was transferred to this district with the parties’ consent, and the Court
consolidated both actions in this case. See ECF No. 12 (consolidating cases number 15-cv-1142
and 15-cv-1926 (Olivo v. Radiancy, Inc.)).

1
Complaint (“Compl.”), Plaintiffs assert all of the claims that were dismissed without prejudice in

Mouzon I—both express and implied warranty claims and a series of state-specific consumer

protection act claims. For the first time, Plaintiffs also assert a consumer protection claim under

the New York General Business Law that is limited to New York State plaintiffs. 2 Once again,

Defendants move to dismiss. Radiancy primarily argues that the Consolidated Amended

Complaint fails to state a claim because it does not remedy the defects the Court identified in

Mouzon I. Radiancy also presents a series of arguments why specific claims asserted in the

Consolidated Amended Complaint fails to state a claim. Rafaeli joins all of Radiancy’s

arguments and also presents separate arguments as to why the Consolidated Amended Complaint

fails to state a claim against him in particular.

Before the Court is Defendant Radiancy’s [20] Renewed Motion to Dismiss for Failure to

State a Claim and Defendant Rafaeli’s [13] Renewed Motion to Dismiss for Failure to State a

Claim. Upon consideration of the pleadings, 3 the relevant legal authorities, and the record as a

whole, the Court DENIES Defendant Radiancy’s [20] Renewed Motion to Dismiss and

GRANTS Defendant Rafaeli’s [21] Renewed Motion to Dismiss. In contrast to the original

2
In Mouzon I, Plaintiffs asserted a consumer protection claim under the New York General
Business law for a putative nationwide class. 85 F. Supp. 3d at 374. That claim was dismissed
with prejudice, id. at 377, and Plaintiffs do not purport to assert such a claim in this case.
3
The Court’s consideration has focused on the following documents:
• Def. Radiancy, Inc.’s Renewed Mot. to Dismiss for Failure to State a Claim (“Radiancy
Mot.”), ECF No. 20;
• Def. Dolev Rafaeli’s Renewed Mot. to Dismiss for Failure to State a Claim (“Rafaeli
Mot.”), ECF No. 21;
• Pls.’ Joint Mem. of Points and Authorities in Opp’n to Defs.’ Mots. To Dismiss Pls.’
Amended Class Action Complaint (“Pls.’ Opp’n”), ECF No. 22; and
• Defs.’ Joint Reply Mem. in Supp. of Defs.’ Indiv. Mots. to Dismiss (“Defs.’ Reply”), ECF
No. 25.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).

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Complaint filed in Mouzon I, the Court concludes that Plaintiffs’ have adequately pleaded all of

their claims against Radiancy. But the Court also concludes that the Consolidated Amended

Complaint fails to state a claim against Rafaeli. Accordingly, all claims against Rafaeli are

DISMISSED WITH PREJUDICE.

I. BACKGROUND

The Court presented the background of this case at length in its Memorandum Opinion

accompanying the Order dismissing Mouzon I. See generally 85 F. Supp. 3d at 361-87. Given the

issues presented in the pending motions, there is no need to do so again here. Instead, the Court

reserves a presentation of the relevant background for the issues discussed below.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a

complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.

R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of

‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual

allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly,

550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678. In deciding a Rule 12(b)(6) motion, a court may consider “the

facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the

complaint,” or “documents upon which the plaintiff’s complaint necessarily relies even if the

document is produced not by the plaintiff in the complaint but by the defendant in a motion to

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dismiss.” Ward v. District of Columbia Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119

(D.D.C. 2011) (citations omitted).

III. DISCUSSION

Defendant Radiancy moves to dismiss under Rule 12(b)(6), arguing that the Consolidated

Amended Complaint fails to state a claim. Defendant Rafaeli moves to dismiss, as well, under

Rule 12(b)(6) for failure to state a claim. He joins all of Radiancy’s arguments and presents

additional arguments as to why the Consolidated Amended Complaint fails to state a claim

against him. The Court turns first to Radiancy’s arguments, followed by Rafaeli’s arguments.

A. Complaint States a Claim against Radiancy
Defendant Radiancy moves to dismiss the Consolidated Amended Complaint on the basis

that it fails to state a claim. The Court first addresses Radiancy’s arguments regarding the

implied and express warranty claims, followed its arguments regarding the state-specific

consumer protection act claims.

1. Warranty Claims
Plaintiffs asserts claims for breach of express warranty; for breach of implied warranty of

merchantability; and for violations of the Magnuson-Moss Warranty Act, which provides a

federal cause of action for certain state warranty claims. As in Mouzon I, the parties disagree

about what source of law governs these claims, with Plaintiffs asserting that New York law

governs each of the warranty claims and Defendants asserting that the warranty claims are

governed, respectively, by the state law of each plaintiff’s state of residence. See 85 F. Supp. 3d

at 383. The Court need not decide the choice-of-law question at the present time because the

4
Court concludes that the warranty claims survive Radiancy’s motion to dismiss regardless of the

source of law. 4

With respect to the breach of express warranty claims, the Court dismissed those claims

without prejudice in Mouzon I based on the following analysis:

Plaintiffs identify a series of allegations in the complaint that contain
representations about the product, which they allege are false. However, none of
those allegations even so much as suggest that Plaintiffs were exposed to those
particular representations or to the advertising containing those representations.
Because Plaintiffs never allege that they actually were exposed to the specific
representations that they identify as the basis for this claim, these representations
cannot serve as a basis for the bargain in which Plaintiffs entered when they
purchased the product. Furthermore, Plaintiffs argue that they have adequately
alleged reliance, relying on the allegation that the individual plaintiffs “would not
have bought the product” if they knew that the product “was unable to prevent
hair regrowth and could not live up to its other representations.” However,
because Plaintiffs did not allege the circumstances under which they were
exposed to the specific representations they identified—or indeed whether they
were exposed to them at all—those representations cannot be the basis for a claim
of a breach of express warranty.

Mouzon I, 85 F. Supp. 3d at 384 (citations omitted). The parties disagree about whether the

addition to the Consolidated Amended Complaint, in comparison to the Mouzon I complaint, are

sufficient to cure the deficiencies that the Court identified in Mouzon I. The Court agrees with

Plaintiffs that the additional details regarding each individual plaintiff’s exposure to advertising

regarding the no!no! device are sufficient to remedy the previously identified defects. See

Compl. ¶¶ 175-206. Specifically, the Court concludes that, with the new details provided in the

Consolidated Amended Complaint, Plaintiffs sufficiently allege exposure to the supposedly

misleading representations regarding the product and sufficiently allege reliance on those

4
This conclusion allows the Court to resolve the choice-of-law question, which is often fact
dependent, later in these proceedings upon a more fully developed factual record.

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representations. As a result, the Consolidated Amended Complaint states breach of express

warranty claims against Radiancy.

With respect to the breach of implied warranty of merchantability claims, the Court

previously dismissed the claims against Radiancy without prejudice based on the following

analysis:

Plaintiffs have not adequately alleged that they have used the device and that it
was not fit for the ordinary purpose for which it was intended. Even if Plaintiffs
are right that the “ordinary purpose” of the product is the sort of long term hair
removal that they allege was advertised, they have provided insufficient
allegations to support that claim. Each individual plaintiff alleges purchasing the
product but never alleges using it; as a result, they also do not allege that they
were injured by its unfitness through their personal use.

Mouzon I, 85 F. Supp. 3d at 385. Once again, the parties disagree about whether the language

that was added to the Consolidated Amended Complaint and that was not present in the Mouzon I

complaint is sufficient to remedy the defects the Court previously identified. And, once again, the

Court agrees with Plaintiffs that the additions are sufficient to remedy those defects. Specifically,

the Consolidated Amended Complaint includes allegations regarding each plaintiff’s use of the

product and the results of attempting to use the product. See Compl. ¶¶ 176, 177, 179, 180-81,

183-84, 186, 189, 191, 193, 195, 197-98, 200. With these additions, the Court concludes that the

Consolidated Amended Complaint states implied warranty of merchantability claims against

Radiancy. 5

5
Defendants are correct that the Court noted previously that “pursuant to New York law, the
question of ‘fit’ appears to be closely aligned with safety.” Mouzon I, 85 F. Supp. 3d at 385 n.17.
However, New York law is not definitive on this point, and it would be premature to dismiss this
case at the pleadings stage based on such an assessment of New York law. Given the fact-
dependent nature of the relevant inquiry, it is most proper to assess such arguments after further
development of the factual record. See Denny v. Ford Motor Co., 662 N.E.2d 730, 736 (N.Y.
1995) (“[I]nquiry focuses on the expectations for the performance of the product when used in
the customary, usual and reasonably foreseeable manners.’’).

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 Lastly, with respect to the Magnuson-Moss Warranty Act claims, the parties agree that, if

the other warranty claims survive the motion to dismiss, so too do the Magnuson-Moss claims.

Because the Court concludes that the Consolidated Amended Complaint states express and

implied warranty claims against Radiancy, the Court concludes that it states Magnuson- Moss

claims, as well, against Radiancy.

Accordingly, for all of these reasons, the Court DENIES Radiancy’s Motion to Dismiss

with respect to the warranty claims.

2. State Consumer Protection Law Claims
In Mouzon I, the Court dismissed the state-specific consumer protection claims asserted

by the plaintiffs because those fraud-based claims had not been pleaded with particularity as

required by Federal Rule of Civil Procedure 9(b). 85 F. Supp. 3d at 380-81 (dismissing claims

under the law of California, District of Columbia, Florida, Illinois, Maryland, Virginia, Colorado,

West Virginia, and Pennsylvania). Once again, the parties disagree about whether the additional

material in the Consolidated Amended Complaint, which was not included in the Mouzon I

complaint, remedies the defects that the Court identified with respect to the initial complaint.

And once again, the Court agrees with Plaintiffs that the additional material suffices for the

Consolidate Amended Complaint to state a claim with respect to the various state-specific claims

that the Court previously dismissed without prejudice. Specifically, the Court concludes that, as a

result of the additional allegations and additional details in the Consolidated Amended

Complaint, those claims are pleaded with particularity as required by Federal Rule of Civil

Procedure 9(b). See Compl. ¶¶ 175-206.

In addition to continuing to argue that the state-specific consumer protection claims are

not pleaded with particularity, Defendants also present several arguments about why the

7
Consolidated Amended Complaint fails to state a claim with respect to individual specific state-

specific consumer protection claims. The Court reviews each of those arguments, in turn, and

concludes that none of them are successful.

First, Defendants argue that the Consolidated Amended Complaint fails to state a claim

under the California Legal Remedies Act because Plaintiffs did not provide adequate pre-suit

notice as required by that statute. The Court agrees with Plaintiffs that their April 16, 2014,

notice letter complies with the requirements of the California Legal Remedies Act, strictly

construed: it gave Defendants notice of the alleged violations and gave them an opportunity to

cure those violations before this litigation ensued. See Cal. Civ. Code § 1782(a). Because that

notice was provided more than 30 days before this consolidated action was filed, the notice

requirement does not bar this suit.6

Second, Defendants argue that the Consolidated Amended Complaint fails to state a

claim with respect to several of the specific claims under California, District of Columbia,

Maryland, and Virginia law because of the respective statutes of limitations. However, in this

Circuit, it is well established that “[b]ecause statute of limitations issues often depend on

contested questions of fact, dismissal is appropriate only if the complaint on its face is

conclusively time-barred.” Bregman v. Perles, 747 F.3d 873, 875 (D.C. Cir. 2014). Moreover, the

D.C. Circuit has cautioned that “courts should hesitate to dismiss a complaint on statute of

limitations grounds based solely on the face of the complaint.” Firestone v. Firestone, 76 F.3d

1205, 1209 (D.C. Cir. 1996). As other district judges in this district have explained, “Put another

way, a defendant is entitled to succeed on a Rule 12(b)(6) motion to dismiss brought on statutes

6
Defendants provide no authority for their assertion that the notice effectively became stale after
the first action was filed and subsequently dismissed. There is no basis to conclude that the
notice was only effective for allowing Mouzon I, but not for allowing this action.

8
of limitations grounds only if the facts that give rise to this affirmative defense are clear on the

face of the plaintiff’s complaint.” Lattisaw v. D.C., 118 F. Supp. 3d 142, 153 (D.D.C. 2015)

(citing Smith–Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998)); accord

Campbell v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 130 F. Supp. 3d 236, 254 (D.D.C. 2015).

In this case, because there is uncertainty about when the claims in this case accrued, the Court

cannot conclude based on the face of the complaint alone that the applicable statutes of

limitations bar the claims in this case. Further factual development is necessary before the Court

may properly assess the impact of the statute of limitations on the several claims asserted in this

case. 7

Third, Defendants argue that a class action cannot be pursued under the Virginia

Consumer Protection Act because Virginia law does not allow class actions, absent explicit

authorization not present here. Plaintiffs argue that the availability of a class action remedy is

governed by the Federal Rules of Civil Procedure rather than by Virginia law. The Court

concludes that it is unnecessary to resolve this question at this stage of the proceedings. Plaintiffs

are not—yet—seeking to certify any classes in this action. The question of whether a class action

may be maintained with respect to the Virginia Consumer Protection Act is proper to consider at

the class certification stage rather than in considering a motion to dismiss, particularly given that

Defendants are not arguing (on this basis) that the Consolidated Amended Complaint fails to

state a claim as to the named Virginia plaintiffs.

7
Plaintiffs assert that the statute of limitations was tolled for all Plaintiff during the pendency of
the Mouzon I action. Pls.’ Opp’n at 35. That is simply incorrect. As the Court previously noted,
the statute of limitations is only tolled only for unnamed putative class members. Mouzon II, 309
F.R.D. at 65. Plaintiffs may not twist the Court’s words to suggest the contrary.

9
 Fourth, and finally, Defendants argue that, even if the Court concludes that Plaintiffs have

pleaded their state consumer protection act claims with particularity, they have not adequately

pleaded reliance and/or proximate cause as required for certain state law claims in this case. 8 The

Court agrees with Plaintiffs that the Consolidated Amended Complaint adequately pleads

reliance and/or proximate cause insofar as it is required for the claims under California, Florida,

Illinois, Maryland, Virginia, West Virginia, and Pennsylvania law. See Mouzon I, 85 F. Supp. 3d

at 378 (outlining requirements under the several state statutes). Particularly because of the

additional allegations in the Consolidated Amended Complaint, in comparison to the original

Mouzon I complaint, the Court concludes that Plaintiffs have adequately alleged that they,

individually, relied on the representations in the Defendants’ advertising materials and those

representations caused their alleged injuries. See Compl. ¶¶ 175-206. No more is necessary at

this stage of the proceedings.

In addition to the state-specific consumer protection claims discussed above, the

Consolidated Amended Complaint includes a claim under the New York General Business Law

on behalf of the New York named plaintiffs—who were not parties to the original action—and on

behalf of a putative New York subclass.

First, the Court concludes that Mouzon I does not pose any barrier to the newly added

claim. Previously, the Court concluded that a New York General Business Law claim could not

be asserted on behalf of out-of-state plaintiffs, and, therefore, dismissed such a claim with

prejudice. See Mouzon I, 85 F. Supp. 3d at 374-77. But Plaintiffs now assert a New York General

Business Law claim only on behalf of named Plaintiffs who were not previously parties to the

8
As the parties note, the Court did not reach this issue in Mouzon I because it concluded that the
state-specific claims had not been pleaded with the requisite particularity. 85 F. Supp. 3d at 378
& n.12.

10
original action and on behalf of a new putative New York subclass. See Compl. at 1-2 (listing of

parties); id. ¶¶ 306-11. Therefore, the Court’s previous decision does not prevent the assertion of

this claim in this consolidated action.

Second, the parties dispute whether the heightened pleading standard of Rule 9(b) applies

to the New York General Business Law claim. The Court need not decide this question now: the

Court concludes that, even if the heightened pleading standard of Rule 9(b) is applicable, the

Consolidated Amended Complaint satisfies that standard. Specifically, just as the Court

concludes that the additions to the Consolidated Amended Complaint have remedied the

deficiencies that the Court previously identified with respect to the other state-specific claims

asserted in Mouzon I, the Court concludes that the Consolidated Amended Complaint states a

claim under the New York General Business Law (the analogous New York law claim).

For all of these reasons, the Court DENIES Radiancy’s motion to dismiss with respect to

all of the state-specific consumer protection act claims brought in this action.

B. Complaint Fails to State a Claim against Rafaeli
As explained above, Rafaeli moves to dismiss all of the claims asserted against him,

adopting all of Radiancy’s arguments and presenting several additional arguments as to why the

Consolidated Amended Complaint fails to state a claim against him. Because the Court has

already rejected all of Radiancy’s arguments above, the Court now turns to Rafaeli’s separate

arguments as to why the claims against him, in particular, fail to state a claim. The Court

addresses the warranty claims, followed by the state-specific consumer protection act claims.

1. Warranty Claims
Rafaeli argues that the warranty claims against him fail because he is a corporate officer

and cannot be held liable for warranty claims absent contractual privity between him and the

11
Plaintiffs who purchased the device. Plaintiffs respond that Rafaeli can be held liable as an

“agent” for Radiancy and that they have adequately pled contractual privity through the

Consolidated Amended Complaint. The Court agrees with Defendants that the Consolidated

Amended Complaint fails to state warranty claims against Rafaeli because of the absence of

allegations supporting contractual privity.

As noted above, Plaintiffs maintain that New York law applies to all of the warranty

claims in this case, while Defendants maintain that the law of the state of residence of the

individual plaintiffs applies, respectively, to each plaintiff’s warranty claims. Regardless of the

source of law, privity of contract is required between a plaintiff and a defendant to state a

warranty claim. See Am. Fin. Int’l Grp.-Asia, L.L.C. v. Bennett, No. 05 CIV. 8988 (GEL), 2007

WL 1732427, at *2 (S.D.N.Y. June 14, 2007) (under New York law, no basis for warranty claims

against corporate officer absent heightened showing necessary to pierce corporate veil); Bell v.

Manhattan Motorcars, Inc., No. 06CV4972GBD, 2008 WL 2971804, at *4 (S.D.N.Y. Aug. 4,

2008) (same); Connecticut Pie Co. v. Lynch, 57 F.2d 447, 448 (D.C. Cir. 1932) (applying the

general rule that privity is required for warranty claims); see also, e.g., All W. Elecs., Inc. v. M-B-

W, Inc., 75 Cal. Rptr. 2d 509 (Cal. App. 4th 1998) (citing Burr v. Sherwin Williams Co., 268 P.2d

1041 (Cal. 1954)) (privity required for warranty claims under California law); Karhu v. Vital

Pharm., Inc., No. 13-60768-CIV, 2013 WL 4047016, at *6 (S.D. Fla. Aug. 9, 2013) (explaining

general privity requirement under Florida law and that courts have “relaxed” that requirement

only “where the express warranty was clearly intended to cover subsequent purchasers”).

Moreover, there is no general exception to the privity requirement that establishes liability over

corporate officers for warranty claims. See id.

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 In support of their argument, Plaintiffs primarily rely on Hodgson, Russ, Andrews, Woods

& Goodyear, LLP, v. Isolatek Int’l Corp, 300 A.D.2d 1051 (N.Y. App. Div. 2002). However,

Isolatek bears no resemblance to this case. In Isolatek, the Appellate Division of the New York

Supreme Court—that is, New York State’s intermediate appellate court—considered a

complicated array of contractors and subcontractors who were involved in the renovation of a

building. Id. at 1053. The Appellate Division considered whether Isolatek, a manufacture of a

fireproofing material, could be held liable for injuries resulting from the use of that material. Id.

at 1052-53. The court concluded that Isolatek could only be liable if it was in privity with

plaintiffs. The court further concluded that there was a triable factual issue that precluded

summary judgment—specifically whether Isolatek was in privity with the plaintiffs because a

certain subcontractor was acting as an agent for both the plaintiffs and for Isolatek. Id. at 1053.

In other words, there was a triable issue as to whether there was a direct series of links that

connected the injured plaintiffs to the manufacturer of the material that caused the alleged injury.

In this case, by contrast, there is no such chain of connections that establishes privity

between the Plaintiffs as purchasers and Rafaeli. Plaintiffs claim that Rafaeli appears in the

advertisements of the no!no! Hair removal device and that he orchestrated the allegedly

misleading advertising campaign. Plaintiff’s allegations, however, are simply not enough to

create the links necessary to state warranty claims against Rafaeli. Indeed, Plaintiffs’ theory

would sweep in numerous warranty claims against corporate officers. Whether such liability

would be beneficial as a matter of policy is not for the Court to say. It is enough, instead, for the

13
Court to conclude that there is no basis in law for Plaintiffs’ remarkably broad interpretation of

the scope of warranty law. 9

Because the Consolidated Amended Complaint does not adequately plead facts

supporting a conclusion that Plaintiffs and Rafaeli were in privity, the Court dismisses the

warranty claims against Rafaeli.

2. State Consumer Protection Act Claims
Rafaeli argues that, with respect to the state-specific consumer protection act claims,

Plaintiffs have (1) failed to identify false representations made by Rafaeli, (2) failed to identify

false representations by Rafaeli that were heard or read by Plaintiffs, and (3) failed to identify

any nexus to Rafaeli that suggests fraudulent misrepresentations. Plaintiffs’ only response,

specifically with respect to Rafaeli, is to point to the allegation that Rafeli appeared himself in

“some” of the advertising segments. See Comp. ¶ 92 (“Likewise, in television commercials,

infomercials, and sponsored segments on HSN and QVC, Radiancy spokespersons, including

CEO Rafaeli himself in some of the segments, repeatedly and forcefully reinforced and

elaborated these claims of permanent hair removal with statements such as the following … ”).

However, notwithstanding the fact that Consolidated Amended Complaint includes

individualized allegations pertaining to specific individual Plaintiffs that were missing from the

Mouzon I complaint—as discussed above—none of those individualized allegations reference

Rafaeli himself. See id. ¶¶ 174-200. In short, none of Plaintiffs ever allege having been exposed

to any misrepresentations by Rafaeli. Without any such exposure, the consumer protection

9
Plaintiffs cite G.D. Searle & Co. v. Medicore Commc’ns, Inc., 843 F. Supp. 895, 904 (S.D.N.Y.
1994), for a general and unremarkable statement of agency law. But that statement has no
relevance to the facts of this case.

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claims against Rafaeli cannot proceed in this action. For that reason, the Court dismisses the

state-specific consumer protection act claims against Rafaeli.

* * *

Plaintiffs have now had two opportunities to attempt to plead warranty and state

consumer protection act claims against Rafaeli—in Mouzon I and in this action—and they have

twice failed to do so successfully. Therefore, the Court concludes that “ ‘the allegation of other

facts consistent with the challenged pleading could not possibly cure the deficiency,’ ” and

dismissal of these claims with prejudice is warranted. Rudder v. Williams, 666 F.3d 790, 794

(D.C. Cir. 2012) (quoting Belizan v. Hershon, 434 F.3d 579, 583 (D.C. Cir. 2006)). Accordingly,

all claims against Rafaeli are dismissed with prejudice.

IV. CONCLUSION AND ORDER

For the foregoing reasons, it is hereby ORDERED that Defendant Radiancy’s [20]

Renewed Motion to Dismiss is DENIED and Defendant Rafaeli’s [21] Renewed Motion to

Dismiss is GRANTED.

It is further ORDERED that all claims against Rafaeli are DISMISSED WITH

PREJUDICE.

The Court will set an Initial Scheduling Conference by a separate Order.

Dated: August 2, 2016
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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