Barclay v. iFit Health & Fitness Inc.

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


Teeda Barclay, Nicole Nordick, and Jay    File No. 19-cv-2970 (ECT/DTS)   
Ovsak, individually and on behalf of others                               
similarly situated,                                                       

         Plaintiffs,                                                     
                                        OPINION AND ORDER                
v.                                                                        

Icon Health & Fitness, Inc.1 and                                          
NordicTrack, Inc.,                                                        

         Defendants.                                                     


Wilbert  B.  Markovits,  Terence  Coates,  and  Justin  C.  Walker,  Markovits,  Stock  & 
DeMarco, LLC, Cincinnati, OH; Karl L. Cambronne, Bryan L. Bleichner, Jeffrey D. Bores, 
and Christopher P. Renz, Chestnut Cambronne PA, Minneapolis, MN; and Nathan D. 
Prosser, Hellmuth & Johnson PLLC, Edina, MN, for Plaintiffs Teeda Barclay, Nicole 
Nordick, and Jay Ovsak.                                                   

Michael D. Leffel, Foley & Lardner LLP, Madison, WI; and X. Kevin Zhao, Lawrence M. 
Shapiro, Aaron P. Knoll, and Nicholas Scheiner, Greene Espel PLLP, Minneapolis, MN, 
for Defendants Icon Health & Fitness, Inc. and NordicTrack, Inc.          


    Plaintiffs Teeda Barclay, Nicole Nordick, and Jay Ovsak allege that NordicTrack 
treadmills each of them purchased cannot achieve or maintain the continuous horsepower 
Defendants represented the treadmills were capable of.  In a Third Amended Class Action 
Complaint, Plaintiffs assert several claims on their own behalf and on behalf of proposed 

1    Defendants ask that the Clerk be directed to update the case caption to reflect that 
Defendant Icon Health & Fitness, Inc. has changed its name to “iFit Health & Fitness Inc.”  
Mem.  in  Supp.  at  1  n.1  [ECF  No.  118].    Plaintiffs  have  not  opposed  this  change.  
Defendants’ request will therefore be granted.                            
nationwide and Minnesota-specific classes of persons who also purchased NordicTrack 
treadmills.  Now that questions concerning whether Barclay and Nordick must arbitrate 
their claims individually have been answered “no” by arbitrators, Defendants have moved 

to dismiss Plaintiffs’ complaint.  Defendants’ motion will be granted in part and denied in 
part.                                                                     
    Essential background facts and procedural posture are described in two prior orders: 
Barclay v. ICON Health & Fitness, Inc., No. 19-cv-2970 (ECT/DTS), 

 
(D. Minn. Oct. 15, 2020) (“Barclay I”), and Barclay v. ICON Health & Fitness, Inc., __     

F. Supp. 3d __, No. 19-cv-2970 (ECT/DTS), 

 (D. Minn. July 27, 2021) 
(“Barclay II”).  Familiarity with those orders is presumed here.  To what’s in those orders, 
add that arbitrators dismissed Plaintiffs Barclay and Nordick’s arbitration claims for lack 
of arbitrability, and you have all you need to know to follow along with this order. 
                               I                                         

    Defendants seek essentially to clarify that Barclay I dismissed Plaintiffs’ claims 
under the Minnesota Uniform Deceptive Trade Practices Act (“MDTPA”), Minn. Stat. § 
325D.43, et seq., for lack of subject-matter jurisdiction.  It did.  The jurisdictional issue in 
Barclay I was whether Plaintiffs alleged facts showing their Article III standing to seek 
injunctive  relief—specifically,  whether  Plaintiffs  alleged  “some  plausible  prospect  of 

future interactions between Plaintiffs and Defendants” sufficient to show “a threat of future 
harm [that is] ‘real and immediate.’”  Barclay I, 

, at *5 (quoting City of 
Los Angeles v. Lyons, 

 (1983)).  Barclay I concluded that Plaintiffs did 
not plausibly allege any relevant threat of future interactions between them and Defendants 
and that, as a result, “Plaintiffs lack standing to seek injunctive relief.”  

  Consequently, 
“Plaintiffs’  claims  for  injunctive  relief  [were  dismissed]  for  lack  of  subject-matter 
jurisdiction.”  Id. at *15.  The MDTPA’s only remedy is injunctive relief, Minn. Stat. 

§ 325D.45, subd. 1, so Barclay I necessarily resulted in the dismissal of Plaintiffs’ MDTPA 
claims.                                                                   
    Plaintiffs do not seem to dispute that Barclay I dismissed their MDTPA claims.  
Instead, Plaintiffs seek reconsideration of this holding based on a subsequent decision, 
Cleveland  v.  Whirlpool  Corp.,  No.  20-cv-1906  (WMW/KMM),  

 

(D. Minn. July 27, 2021).  Failing that, Plaintiffs argue that at least Ovsak has standing to 
seek injunctive relief based on allegations in the Third Amended Complaint showing “a 
plausible prospect of future interactions with NordicTrack to repair” his treadmill.  Pls.’ 
Mem. in Opp’n at 21–22 [ECF No. 122].                                     
    Article III requires an injunction-seeking plaintiff to show a threat of ongoing or 

future harm of the kind the requested injunction is intended to prevent, Lyons, 

; see Barclay I, 

, at *5, and the MDTPA mirrors these requirements.2  
The MDTPA says that “[a] person likely to be damaged by a deceptive trade practice of 
another may be granted an injunction against it.”  Minn. Stat. § 325D.45, subd. 1.  The 
MDTPA’s  requirement  that  plaintiffs  show  they  are  “likely  to  be  damaged”  seems 

indistinguishable from Article III’s threat-of-future-harm requirement for injunctive relief.  
In other words, under the MDTPA, like Article III, a plaintiff cannot obtain an injunction 

2    Not that it would matter if it didn’t.  A legislature, be it Congress or a state 
legislature, cannot make injunctive relief available in a federal court on a lesser showing 
than Article III requires.  Raines v. Byrd, 

, 820 n.3 (1997). 
without showing a likelihood of future injury.  And like Article III, the MDTPA requires 
that such future injury be the kind the requested injunction is intended to prevent.  The 
statute makes clear that whatever future damage a plaintiff alleges is likely must result from 

“a deceptive trade practice” and not some other kind of activity.  The MDTPA continues 
on, in § 325D.44, subd. 1, to identify acts constituting deceptive trade practices that may 
be enjoined, and there are thirteen possibilities.                        
    Here, Plaintiffs’ allegations are insufficient whether viewed from the perspective of 
Article III or the MDTPA.  Plaintiffs identify three deceptive trade practices (from among 

the MDTPA’s thirteen options) in their Third Amended Complaint, each based solely on 
Defendants’ alleged misrepresentations regarding their treadmills’ continuous horsepower.  
Third  Am.  Compl.  ¶¶  162–63  [ECF  No.  80].    If  Plaintiffs  were  damaged  by  those 
misrepresentations, that occurred at purchase (in the past).  See id. ¶ 166 (alleging injuries 
resulting from “premium price charged to customers”).  And Plaintiffs do not connect the 

only future interactions they allege—the possibility that NordicTrack may repair Ovsak’s 
treadmill—to a deceptive trade practice.  In other words, Plaintiffs allege no facts plausibly 
showing how an injunction targeting Defendants’ continuous-horsepower representations 
might have anything to do with Defendants’ possible future repairs to Ovsak’s treadmill.  
Plaintiffs allege only that Ovsak’s treadmill has “stopped working.”  Id. ¶ 21.  They do not 

allege that the treadmill’s disrepair relates to its inability to achieve a particular level of 
continuous horsepower or that a repair would remedy that issue.           
    The case on which Plaintiffs rely to seek reconsideration of this aspect of Barclay I, 
Cleveland v. Whirlpool Corp., seems different.  There, the plaintiff’s MDTPA claim was 
based  on  representations  by  the  defendant  Whirlpool  that  some  dishwashers  it 
manufactured were defect-free when (the plaintiff alleged) they were not.  Cleveland, 

, at * 9.  Importantly, the plaintiff also alleged that it was necessary to repair 

or replace her dishwasher but that any repair or replacement would continue to suffer from 
the alleged defect.  Id. at *10.  Presumably because the injunction the plaintiff sought would 
require remedying the alleged defect, the plaintiff’s allegations of future injury associated 
with anticipated repair or replacement were enough.  We don’t have anything like that here.  
Plaintiffs lack Article III standing to obtain injunctive relief, and their MDTPA claims in 

Count 6 of the Third Amended Complaint will be dismissed for lack of subject-matter 
jurisdiction.                                                             
                               II                                        
    Defendants  argue  that  damages  are  an  element  of  every  asserted  claim,  that 
Plaintiffs do not allege facts plausibly showing that they were injured, and that “Plaintiffs’ 

failure to plead damages is fatal to all of their claims”—both as a jurisdictional matter and 
on the claims’ merits.  Defs.’ Mem. in Supp. at 8, 12 n.5 [ECF No. 118].  Plaintiffs argue 
that this “is a ‘classic mislabeling case’—where consumers suffer damages by paying price 
premiums for products that are not as warranted and/or advertised.”  Pls.’ Mem. in Opp’n 
at 6.  Defendants do not argue that price-premium damages are unavailable as a matter of 

law.3  In view of the Parties’ arguments, then, the question boils down to whether Plaintiffs 
have alleged facts plausibly showing they suffered “price-premium” damages. 

3    One case from this district holds that price-premium damages are available under 
Minnesota law.  Laughlin v. Target Corp., No. 12-cv-489 (JNE/JSM), 

, 
at *4 (D. Minn. July 27, 2012) (“When a complaint alleges misrepresentation or fraud that 
    There is a “long-standing rule that no tort claim for economic damages lies when a 
product is merely at risk of failing.”  Penrod v. K&N Eng’g, Inc., 

, 673 (8th 
Cir. 2021); see In re Polaris Mktg., Sales Pracs., and Prod. Liab. Litig., 

, 796–

97 (8th Cir. 2021); Wallace v. ConAgra Foods, Inc., 

 (8th Cir. 2014); 
O’Neil v. Simplicity, Inc., 

 (8th Cir. 2009); Briehl v. Gen. Motors Corp., 

 (8th Cir. 1999).  In Penrod, Polaris, and Wallace, the plaintiffs’ failure 
to plead more than a risk of product failure was considered an Article III jurisdictional 
problem;  “O’Neil and Briehl both  held  that  plaintiffs  failed  to  state  a  claim,  without 

discussing standing and the requirement of injury in fact.”  Polaris, 9 F.4th at 797.  The 
summary of Briehl provided by the court in Polaris is particularly instructive: 
         [In  Briehl],  plaintiffs  alleged  that  anti-lock  brakes  in  their 
         vehicles  were  defective  because  they  performed  in  a      
         counterintuitive  way  that  could  cause  drivers  to  react   
         inappropriately during emergencies.  Id. at 626.  The plaintiffs 
         alleged  economic  injury  on  the  theory  that  the  brakes   
         “diminished the vehicles’ resale value,” but they did not allege 
         that the brakes “malfunctioned or failed.”  Id. at 628.  This   
         court concluded that the plaintiffs’ “conclusory assertions” that 
         they suffered injuries, and that the brakes were defective, were 
         “insufficient as a matter of law to plead a claim” for economic 
         injury.  Id. at 629.                                            

In re Polaris, 9 F.4th at 796–97.                                         
    Here, in contrast to the facts of these Eighth Circuit cases, Plaintiffs allege facts 
plausibly showing injury and damages.  Plaintiffs allege that each of them paid a higher 
price to purchase a treadmill in reliance on Defendants’ representations that the treadmill 

induces  a  consumer  to  purchase  a  product,  Minnesota  courts  have  recognized  that 
allegations of [price-premium] damages . . . establish a legally sufficient claim for relief.”).  
The Parties have not addressed whether such damages may be available under Utah law. 
could achieve a particular continuous horsepower rating during normal use and that the 
treadmills’ capacity to achieve the continuous horsepower rating held benefits compared 
to less expensive treadmills.  Third Am. Compl. ¶¶ 2, 8, 10, 11, 17, 20, 23, 47–63.  Plaintiffs 

allege that the treadmills each of them purchased could not (and cannot) achieve the 
continuous horsepower during ordinary use as advertised.  Id. ¶¶ 1, 3, 4, 7, 9, 18, 19, 21, 
22, 24, 27–45.  Plaintiffs allege that, had they known the machine’s actual horsepower 
capabilities, each of them would not have purchased the treadmill or would have paid much 
less for the treadmill.  Id. ¶¶ 12, 17, 20, 23.  Plaintiffs have bolstered their price-premium-

damages theory with allegations that continuous horsepower is something consumers and 
industry experts care about, id. ¶¶ 38–43, and that “Defendants have priced [treadmills] 
according to the misleading CHP associated with each model, incrementally increasing the 
price  premium  based  on  successively  higher  CHP  representations,”  id.  ¶ 59.    These 
allegations plausibly show that Plaintiffs were injured.4                 

    Defendants  advance  several  arguments  to  show  that  these  allegations  are  not 
sufficient,  but  these  arguments  are  not  persuasive.    Defendants  argue  that  Plaintiffs 
“nowhere . . . allege that their treadmills were not equipped with motors rated to the listed 
CHPs.”  Defs. Mem. in Supp. at 8.  This argument seems implicitly to rely on Defendants’ 
factual contention that the treadmills were tested and achieved the represented continuous 

horsepower ratings in a laboratory-type environment.  If that understanding of the argument 

4    See Bechtel v. Fitness Equip. Servs., LLC, 

, 474 (S.D. Ohio 2021) 
(finding allegations that plaintiffs, had they known falsity of continuous horsepower 
representations,  “would  not  have  purchased  . . .  [the]  treadmill  or  would  have  paid 
substantially less to purchase one” plausibly showed injury).             
is correct, then the argument is another way of pointing out that Plaintiffs don’t allege that 
the motors are incapable of achieving the represented continuous horsepower rating in any 
setting.  This is true, but Plaintiffs do not need to allege this fact to support their theory that 

the purchased treadmills cannot achieve the represented continuous horsepower rating in a 
typical  residential  or  similar  setting  where  (Plaintiffs  allege)  Defendants  knew  the 
treadmills would be used.  Defendants also point out that Plaintiffs do not “allege that their 
treadmills’ performance was in any way deficient (e.g., they could not run at a certain speed 
or incline).”  

 at 8–9.  This is true in the sense that Plaintiffs do not allege their use of 

the treadmills was impaired in any way.  That’s not Plaintiffs’ theory.  Plaintiffs’ theory is 
that  their  treadmills’  performance  was  deficient  in  comparison  to  the  advertised 
continuous-horsepower rating and that their price-premium injury occurred on purchase.  
Plaintiffs do not—and need not—allege that each of them experienced some noticeable 
impairment during use to plausibly plead this theory.5  Finally, Defendants argue that 

Plaintiffs’ claims are comparable to Briehl and cases like it where plaintiffs sought to 


5    Defendants  cite  In  re  Shop-Vac  Mktg.  &  Sales  Pracs.  Litig.,  NDL  No. 
4:12-md-2380, 

 (M.D. Pa. July 17, 2014).  There, the court denied a 
motion to dismiss consumer-fraud and breach-of-warranty claims on standing grounds.  In 
Defendants’ view of the case, “allegations of performance deficiency were critical to the 
court’s refusal to dismiss the[] claims.”  Defs.’ Mem. in Supp. at 11 n.4.  It is true that the 
plaintiffs “further alleged actual injury” by alleging that the “vacuums did not perform as 
promised for their intended purpose.”  Shop-Vac, 

, at *6 (emphasis 
added).  But there isn’t much question the court in Shop-Vac found allegations like those 
asserted here—that the defendants misrepresented “specifications regarding power and 
tank size,” “that [the plaintiffs] would not have purchased the vacuums but for these 
misrepresentations, and that they therefore paid an unfair price”—sufficient on their own 
to show an economic injury.  Id. at *5, *11 & n.14.  Shop-Vac, then, shows that Plaintiffs 
have plausibly alleged damages and standing.                              
advance tort claims based on unmanifested defects, and courts dismissed the claims.  
Again, this case seems different.  Plaintiffs allege the treadmills do not (and cannot) match 
Defendants’ continuous-horsepower representations in ordinary use.  That “defect” (if it 

can be called that) was manifest at purchase.  To draw an analogy, Plaintiffs don’t allege 
that they purchased cars with unmanifested defects in their power trains; Plaintiffs allege 
that they purchased (and paid a premium for) cars based on representations the cars could 
perform at a high horsepower when, in fact, they could not.  Plaintiffs’ claims will not be 
dismissed for a failure to plausibly plead Article III injury or damages. 

                              III                                        
    Defendants  seek  dismissal  of  Plaintiffs’  written-warranty  claim  under  the 
Magnuson-Moss Warranty Act (“MMWA”) on its merits.                        
         Under the MMWA, a warrantor creates a “written warranty”        
         when it provides a buyer with any of three things with respect  
         to a product: (1) a written affirmation or promise that the     
         product’s  “material  or  workmanship  is  defect  free”;  (2)  a 
         written affirmation or promise that the product “will meet a    
         specified level of performance over a specified period of time”; 
         or (3) a written undertaking “to refund, repair, replace, or take 
         other remedial action with respect to such product in the event 
         that such product fails to meet the specifications set forth in the 
         undertaking.”  See 

(6)(A)–(B).                  

Anderson v. 1399557 Ontario Ltd., No. 18-cv-1672 (PJS/LIB), 

, at *4 
(D. Minn. Nov. 4, 2019).  Plaintiffs advance their MMWA claim under the second 
category.  See Pls.’ Mem. in Opp’n at 12–14.  Defendants argue that Plaintiffs have not 
alleged facts plausibly showing that Defendants promised performance “over a specified 
period of time.”  Defs.’ Mem. in Supp. at 18.  Plaintiffs argue that Defendants made a 
“lifetime” warranty about the performance of their treadmills by advertising, not that the 
treadmills  would  last  for  “a  lifetime,”  but  that  the  treadmills  possess  “continuous” 
horsepower.  Pls.’ Mem. in Opp’n at 12–14.                                
    At issue is § 2301(6)(A)’s temporal element.  To be a written warranty under that 

provision, “the warrantor’s guarantee must contain language that specifically identifies the 
duration of the warranty.”  Kelley v. Microsoft Corp., No. C07-0475MJP, 

, at *5 (W.D. Wash. Sept. 10, 2007); see Dayan v. Swiss-Am. Prods., Inc., No. 15 
Civ. 6895 (DLI) (VMS), 

, at *11 (E.D.N.Y. Jan. 3, 2017) (collecting 
cases).  An “equivocal representation” about product performance over time does not 

suffice.  Schechner v. Whirlpool Corp., 

 (E.D. Mich. 2017).  In 
Anderson,  Judge  Schiltz  reasoned  persuasively  that  a  representation  of  “lifetime” 
performance  does  not  create  a  written  warranty  because  “lifetime”  is  an  inherently 
imprecise measurement and therefore not a “specified period of time.”  See Anderson, 

, at **4–5.                                                     

    Plaintiffs have not alleged facts plausibly showing a written warranty under the 
MMWA.  Plaintiffs do not allege in the Third Amended Complaint that Defendants 
promised continuous horsepower for a lifetime or for some other ascertainable duration.  
As  Plaintiffs  describe  it,  continuous  horsepower  is  a  performance  metric:  the 
“measurement of the motor’s ability to maintain and continuously produce power over an 

extended period of time without exceeding the current rating of the motor.”  Third. Am. 
Compl. ¶ 38.  The Third Amended Complaint includes no allegations suggesting what that 
“extended period” might be.  It would not change things if we assumed that Plaintiffs 
intended this allegation to imply “lifetime” performance.  As Judge Schiltz explained in 
Anderson:  “Promising  that  something  will  last  a  ‘lifetime’  is  not  the  same  thing  as 
promising that something will last for a ‘a specified period of time.’”6  

, 
at *5.  No matter how it is reasonably understood, a promise of “continuous” performance 

is equivocal and lacks the specificity necessary required to be a written warranty under the 
MMWA.  Defendants’ motion insofar as it seeks dismissal of Plaintiffs’ MMWA written-
warranty claims (Count 2) will be granted.                                
                              IV                                         
                               A                                         

    Defendants seek the dismissal of Plaintiffs’ state-law warranty claims.  Minnesota 
and Utah law will be applied to this aspect of Defendants’ motion, though the decision to 
take this approach deserves some explanation.  Plaintiffs assert their state-law warranty 
claims  on  behalf  of  two  proposed  classes:  one  nationwide  and  the  other  limited  to 
Minnesota citizens.  Third Am. Compl. ¶¶ 88–99 (nationwide class), 120–46 (Minnesota 

class).  Plaintiffs do not identify what law applies to the nationwide class’s claim.  See 

 
¶¶  88–99.    Plaintiffs  assert  the  proposed  Minnesota  class’s  warranty  claims  under 
Minnesota law.  

 ¶¶ 120–46.                                            
    The nationwide scope of the class in Count 1 and a Utah choice-of-law clause 
discussed below in Part V raise questions regarding what law should apply to these claims.  


6    Anderson  is  not,  as  Plaintiffs  argue,  “at  odds  with  . . . binding  Eighth  Circuit 
precedent.”  Pls.’ Mem. in Opp’n at 13 n.7.  For this assertion, Plaintiffs cite Marvin 
Lumber and Cedar Co. v. PPG Indus., Inc., 

 (8th Cir. 2000).  That case 
does not analyze an MMWA written warranty claim, so it does not address the temporal 
element of 

(6)(A).                                        
The Parties’ submissions do not specifically address what law governs the proposed 
nationwide class’s warranty claim.  To support their motion, Defendants rely on Minnesota 
and Utah warranty law and identify no relevant conflicts.  Defs.’ Mem. in Supp. at 12–17.  

Though Plaintiffs rely on Minnesota law, they do not object specifically to the idea that 
Utah law might govern their claims, suggest that there is some material conflict between 
Minnesota and Utah law, or suggest that some other state’s law might apply.  Pls.’ Mem. 
in Opp’n at 7–12.  Cases describing the basic elements of a breach-of-warranty claim under 
each state’s law appear to confirm their essential similarity.  Angeles v. Medtronic, Inc., 

 (Minn. Ct. App. 2015) (“The elements of a breach-of-warranty claim 
in Minnesota are (1) the existence of a warranty, (2) breach of the warranty, and (3) 
causation of damages.” (citing Peterson v. Bendix Home Sys., Inc., 

, 52–53 
(Minn. 1982))); Groen v. Tri–O–Inc., 

 (Utah 1983) (“A warranty is an 
assurance by one party to a contract of the existence of a fact upon which the other party 

may rely.  It is intended to relieve the promisee of any duty to ascertain the fact for himself, 
and it amounts to a promise to answer in damages for any injury proximately caused if the 
fact warranted proves untrue.”).                                          
    Though there may be room to question this approach, it makes sense just to follow 
the Parties’ lead and apply shared principles of Minnesota and Utah law here.  There is an 

obvious connection between Plaintiffs’ claims and Minnesota law.  As will be discussed, 
there also is a connection between Barclay and Nordick’s claims and Utah law.  And if 
there is a dispositive difference between Minnesota and Utah law (or the law of any other 
state), it hasn’t been identified.                                        
                               B                                         
    The first issue is whether Plaintiffs have plausibly alleged their state-law warranty 
claims.  Under Minnesota and Utah law, a seller creates an express warranty by “[a]ny 

affirmation of fact or promise” about the sold goods, or “[a]ny description of the goods,” 
that forms “part of the basis of the bargain.”  

(1)(a)–(b); Utah Code 
§ 70A-2-313(1).  Words like “warrant” or “guarantee” are unnecessary to create a warranty, 
“but an affirmation merely of the value of the goods or a statement purporting to be merely 
the seller’s opinion or commendation of the goods does not create a warranty.”  

(2); Utah Code § 70A-2-313(2).  Statements in advertising and promotional 
materials may create an express warranty.  E.g., Johnson v. Bobcat Co., 

, 1143–44 (D. Minn. 2016); Boud v. SDNCO, Inc., 

, 1134–36 (Utah 
2002).  A seller’s “representations [] must be interpreted as an ordinary person would 
understand their meaning, with any doubts resolved in favor of the user.”  Hanson v. N. J & 

B Enters., Inc., No. A08-0413, 

, at *4 (Minn. Ct. App. Feb. 3, 2009) 
(quoting McCormack v. Hankscraft Co., 

 (Minn. 1967)); State ex rel. 
Div.  of  Consumer  Protection  v.  GAF  Corp.,  

  (Utah  1988)  (“An 
affirmation of fact, a promise, or a description of the goods must be judged objectively 
against the meaning that a reasonable person would have taken from the statement.”).7 


7    Plaintiffs’  state  and  federal  implied-warranty  claims  need  not  be  addressed 
separately.  Plaintiffs have limited their state-law implied-warranty claims to a mislabeling 
theory that mirrors their express-warranty claims.  See Third Am. Compl. ¶ 137; ECF No. 
43  at  21;  see  also  

(2)(f).    “[W]hen  an  ‘implied  warranty  of 
merchantability cause of action is based solely on whether the product in dispute conforms 
to the promises or affirmations of fact on the packaging of the product, the implied warranty 
of merchantability claim rises and falls with express warranty claims brought for the same 
     Plaintiffs allege facts plausibly showing each of the three essential elements of their 
state-law  breach-of-warranty  claims.   Plaintiffs  plausibly  allege  the  existence  of  a 
watranty—specifically,  that  Defendants  warranted  that  NordicTrack  treadmills  could 
achieve a level of continuous horsepower during residential use.  Indeed, the bulk of the 
Third  Amended  Complaint  is  directed  at  showing  this  element.   Plaintiffs  allege  that 
Defendants  represented  “online  and  in  numerous  market  outlets”  that  NordicTrack 
treadmills included motors with a particular continuous horsepower (or “CHP’”’) rating. 
Third Am.  Compl.  { 47-58.  For example,  in online  marketplaces  like Amazon.com, 
Defendants advertised that the 6.5  S model Barclay purchased had a “Durable 2.6 CHP 
Motor”: 

                    Proven  Performance 

                                       DURABLE 
                                     2.6 CHP MOTOR 
                    SPACIOUS. 
                    20°55" BELT 

                                                    10° - 

                                                LO" DIGITAL 
                                            INCLINE CONTROL 
                         FLEXSELECT 
                     ADJUSTABLE CUSHIONING 

product.’”  Hesse v.  Godiva Chocolatier, Inc., 

, 470 (S.D.N.Y. 2020) 
(citation omitted) (collecting cases).  A MMWA implied-warranty claim also depends on 
the breach of an implied warranty under state law so, by extension, Plaintiffs’ MMWA 
implied-warranty claim also hinges on their express warranty claims.  

(7) 
(“The term ‘implied warranty’ means an implied warranty arising under State law ..  ..”); 
see, e.g., Bollom v. Brunswick Corp., 

, 1224 (D. Minn. 2020). 
                                     14 

  | 54.  Defendants made similar representations about their treadmills on their “treadmill 
blog” and on the NordicTrack website, where they offered NordicTrack treadmills for sale: 

            4"           40"           BK 

                        SMART-Response 
                        Drive  System 
                        nape    inabeitdalenesks 
                        (HP)  4.0 CHP DURX™ MOTOR 
                         ED)  REDUCED VIBRATION 
                         Q)  SELF-COOLING 

 □□□ 48, 56.  Plaintiffs allege that Defendants included similar “CHP” representations on 
the treadmills themselves and in “in-store floor model displays across the country.”  Jd. 
{/57-58.   Plaintiffs  allege  facts  plausibly  showing  that  an  ordinary  person  would 
understand these representations to mean that a treadmill’s in-home continuous horsepower 
matched the “CHP” value Defendants advertised.  Plaintiffs allege that they understood the 
Defendants’ representations this way.  /d.  § 7-10,  17, 20, 23, 46.  And Plaintiffs allege 
that  several  retailers  and  industry  bloggers  shared  their  understanding  of continuous 
horsepower.  For example, Dick’s  Sporting Goods and a “Treadmill Reviews” website 
explained  that  “CHP  measures  how  much  power  the  motor  maintains  throughout  the 
workout” and “shows that the motor can maintain the power it is rated for without lagging 
or slowing down under strain.”  Jd.     40-41, 43.  A fitness blog described CHP as “the 

                                      15 

minimum horsepower delivered at all points during a workout,” id. ¶ 41, and a “Treadmill 
Ratings & Reviews” website described it as a “measure of sustained power during regular 
use,” id. ¶ 42.8  Plaintiffs also allege that Defendants advertised their treadmill motors’ 

CHP ratings as a key feature.  For instance, Defendants advertised that a treadmill “works 
as hard as you with up to an incredible 4.25 CHP DurXTM Commercial Plus motor, 
powering  your  calorie-torching  iFit  workout.”    Id.  ¶¶ 50–51.    Plaintiffs  allege  facts 
plausibly showing a breach of this warranty, id. ¶¶ 7, 9, 16, 18, 19, 21, 22, 24, 60, and that 
the breach caused them damages, id. ¶¶ 11–13, 17–18, 20–21, 23–24.        

    Defendants  dispute  the  plausibility  of  Plaintiffs’  alleged  understanding  of 
Defendants’ continuous-horsepower representations, but Defendants’ arguments are not 
persuasive.  Defendants acknowledge that their “numerical CHP representations” are 
“objective in nature, and thus may constitute warranties,” but Defendants argue that they 
never “affirm[ed] that the treadmills would ‘achieve’ the stated CHP, or any horsepower 

output, during household use”; they “simply affirmed that a [certain] motor would be 
incorporated” into their treadmills.  Defs.’ Mem. in Supp. at 14–15.  Defendants suggest 
that Plaintiffs “tacitly admit that, with sufficient electrical power, the motors do reach the 
stated horsepower.”  Id. at 15.                                           


8    Defendants argue that the existence of a warranty turns on “the actual language and 
images set forth [in the product descriptions],” and that third-party statements “cannot 
support Plaintiffs’ claims.”  Mem. in Supp. at 15–16 (quoting Boud, 

).  The 
rule that third-party statements cannot establish the basis of the bargain or constitute an 
actionable warranty does not mean that such statements are always irrelevant.  Here, 
Plaintiffs  rely  on  the  statements  for  a  different  and  proper  purpose:  to  show  the 
reasonableness  (and  therefore  the  plausibility)  of  their  understanding  of  Defendants’ 
continuous-horsepower representations.                                    
    Defendants’ arguments concerning the meaning of their continuous-horsepower 
representations mirror those rejected in an analogous case, Date v. Sony Electronics, Inc., 
No. 07-cv-15474, 

 (E.D. Mich. Sept. 16, 2010).  In Date, plaintiffs 

alleged that advertisements for a “1080p” television created an express warranty that a 
television could “accept 1080p signal natively through all of its inputs, not just via 
. . . antenna.”  Id. at *9.  In moving to dismiss, the defendants argued no such warranty was 
created because they never expressly represented that the televisions would accept 1080p 
signal via “all inputs” and because the plaintiffs possessed an “erroneous understanding” 

of the televisions’ input capabilities.  Id. at *9–10.  The court denied the motion, noting 
that  the  defendants’  arguments  ignored  the  plaintiffs’  “claim  that  the  phrase  1080p, 
standing alone, implie[d] the ability of the television to accept 1080p through all of its 
inputs,” and that the plaintiffs had supported this understanding with allegations from 
industry sources and the defendants’ own advertisements.  Id.; see also In re Shop-Vac 

Mktg. & Sales Pracs. Litig., 

, at *6–7 (denying motion to dismiss and 
rejecting defendants’ contention that “peak horsepower” is “a term of art that only refers 
to horsepower levels reached for a brief time in laboratory conditions, not during actual 
consumer use” so that “use of the term on the packaging [was] therefore true and standard 
in the industry”).  These cases are persuasive and help to confirm that Defendants’ 

interpretation of their continuous-horsepower representations (even if reasonable) does not 
establish the implausibility of Plaintiffs’ alleged understanding.        
    The same is true for the third-party evidence Defendants cite.  To show that 
Plaintiffs’ understanding is implausible, Defendants cite statements reflecting that third 
parties shared Defendants’ interpretation that “continuous horsepower” does not refer to a 
treadmill’s capabilities during home use.  Defendants cite a “2020 Treadmill Buying 
Guide” published online by “treadmillreviews.com”—one of several industry sources 

Plaintiffs cite in their complaint.  Defs.’ Reply Mem. at 6–7 [ECF No. 125]; see Third Am. 
Compl. ¶ 43 n.10.  According to Defendants, the author of that guide has—since Plaintiffs 
filed this lawsuit—inserted a disclaimer that “CHP motor ratings refer to the motor power 
achieved in a testing facility. You are not going to achieve this same amount of power 
when using the treadmill in your home due to the smaller wattage limitations of [a] 

residential home or apartment.”  Zhao Decl., Ex. G at 10 [ECF No. 126-5].  One can 
hypothesize various reasons why the author might have elected to add this disclaimer after 
the commencement of this case and others like it.  See Bechtel, 

; Walker 
v.  Nautilus,  Inc.,  No.  2:20-cv-3414,  

  (S.D.  Ohio  Dec.  13,  2020).  
Regardless, this evidence does not establish that an ordinary person could not plausibly 

have  shared  Plaintiffs’  understanding  of  Defendants’  continuous-horsepower 
representations at the time Plaintiffs relied on them.                    
    Defendants dispute whether Plaintiffs have plausibly alleged causation, arguing that 
“Plaintiffs never allege that they ever viewed any of the specific descriptions in their 
complaint.”  Defs.’ Mem. in Supp. at 14.  This is not correct.  Barclay, Nordick, and Ovsak 

each alleges to have viewed NordicTrack’s website and to have relied on statements that 
the treadmill each of them purchased was “capable of providing” or “producing” a specific 
level of “CHP.”  Third Am. Compl. ¶¶ 17, 20, 23.  Defendants cite no authority requiring 
more than that.                                                           
                               C                                         
    Defendants also argue that Plaintiffs’ state-law warranty claims should be dismissed 
because  Plaintiffs  do  not  allege  facts  plausibly  showing  they  gave  pre-suit  notice.  

Defendants are correct that pre-suit notice is a prerequisite to suit.  To sue for breach-of-
warranty, a buyer “must within a reasonable time after [they] discover[] or should have 
discovered any breach notify the seller of [the] breach or be barred from any remedy.”  

(3)(a); Utah Code § 70A-2-607(3)(a).  Notice must be pleaded.  
Dolan v. Bos. Sci. Corp., No. 20-cv-1827 (NEB/LIB), 

, at *3 (D. Minn. 

Feb. 23, 2021) (collecting cases); Johnson v. Blendtec, Inc., 

, 1290–91 
(D.  Utah  2020)  (analyzing  complaint  and  document  embraced  by  the  pleadings  to 
determine adequacy of pre-suit notice).  The “reasonableness or the unreasonableness of 
the delay must be determined” by measuring from “[t]he date when the buyer becomes 
aware or should have become aware of the claimed defect.”  Truesdale v. Friedman, 

  (Minn.  1965);  see  also  Blendtec,  Inc.,  500  F.  Supp.  3d  at  1290.  
Generally, “[w]hat constitutes a ‘reasonable time’ is a jury question and depends on the 
facts and circumstances of the case.”  Willmar Cookie Co. v. Pippin Pecan Co., 

  (Minn.  Ct.  App.  1984);  Blendtec,  Inc.,  500  F.  Supp.  3d  at  1290  (quoting 
Christopher v. Larson Ford Sales, Inc., 

 (Utah 1976)).  Courts apply 

the pre-suit notice requirement more leniently in consumer actions, reasoning that strict 
enforcement would defeat the Uniform Commercial Code’s purpose of “allowing good 
faith consumers to pursue relief in courts.”  George v. Uponor Corp., 

 (D. Minn. 2013) (citing Church of the Nativity of Our Lord v. WatPro, Inc., 

 (Minn. 1992), overruled on other grounds, Ly v. Nystrom, 

 
(Minn. 2000)); see Blendtec, Inc., 500 F. Supp. 3d at 1290.  “The bar for sufficiency is low, 
but notice is nevertheless important because it ‘informs the seller that the transaction is 

claimed to involve a breach, and thus opens the way for normal settlement through 
negotiation.’”  Drobnak v. Andersen Corp., 

 (8th Cir. 2009) (citation 
omitted).  A delay in notice can become unreasonable as a matter of law when a buyer has 
known, or should have known, of the alleged breach.  Truesdale, 

; 
Blendtec, Inc., 500 F. Supp. 3d at 1290.                                  

    Here, Plaintiffs have not alleged facts plausibly showing that they gave Defendants 
timely pre-suit notice.  Plaintiffs allege when they purchased their treadmills.  Barclay 
purchased her treadmill in June 2019.  Third Am. Compl. ¶ 16.  Ovsak purchased his 
treadmill in February 2016.  Id. ¶ 19.  And Nordick purchased hers in January 2019.  Id. 
¶ 22.  Plaintiffs also allege when they gave written notice to Defendants.  Barclay mailed 

written notice on October 10, 2019.  Id. ¶¶ 84–85.  And Ovsak and Nordick did so on 
February 3, 2020.  Id. ¶ 86.  Plaintiffs don’t, however, allege when each of them discovered 
the alleged breach.  Plaintiffs allege only that they gave notice “within a reasonable time” 
after they discovered or reasonably should have discovered the continuous horsepower 
discrepancy, but they do not plead a discovery date.  Id. ¶¶ 84, 86.      

    Defendants don’t dispute specific dates or challenge the content of Plaintiffs’ pre-
suit notices.  They contend that, by not alleging when they discovered the alleged breach, 
Plaintiffs have not alleged sufficient facts to show their notice was timely.  Defs.’ Reply 
Mem. at 9 n.8.  This is persuasive.  As noted, in Minnesota and Utah, the timeliness of pre-
suit notice is determined by the gap between “[t]he date when the buyer becomes aware or 
should have become aware of the claimed defect” and the provision of notice.  Truesdale, 

; see Blendtec, Inc., 500 F. Supp. 3d at 1290.  That determination can’t 

be made without knowing when the buyer became aware of the defect.  And alleging, as 
Plaintiffs do here, that notice was given “within a reasonable time” seems the same thing 
as pleading an unhelpful legal conclusion.  See Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 

 (2009).  Though Plaintiffs’ failure to allege a discovery date means they have 
not alleged pre-suit notice to support their state-law breach of warranty claims, this sort of 

technical pleading defect ordinarily may be “easily cured” through amendment.  Nathan v. 
Whirlpool Corp., 

, 756 (S.D. Ohio 2020); accord Tyman v. Pfizer, Inc., 
16-CV-06941 (LTS) (BCM), 

, at *22–23 (S.D.N.Y. Dec. 27, 2017), 
report and recommendation adopted, 

 (S.D.N.Y. Jan. 18, 2018).  The 
state-law warranty claims in Counts 1, 3, and 4 will therefore be dismissed without 

prejudice,  and  Plaintiffs  will  be  granted  leave  to  file  a  fourth  amended  complaint 
addressing this deficiency.                                               
                               V                                         
                               A                                         
    Defendants argue that a Utah choice-of-law clause in Terms of Use to which Barclay 

and Nordick assented prevents them from asserting certain Minnesota statutory claims—
specifically, claims under the MDTPA (Count 6), the Consumer Fraud Act, Minn. Stat. §§ 
325F.68–.70 (Count 7), the False Statement in Advertisement Act, Minn. Stat. § 325F.67 
(Count 8), and the Unlawful Trade Practices Act, Minn. Stat. § 325D.13 (Count 9).  Defs.’ 
Mem. in Supp. at 23.9  The dismissal of Plaintiffs’ MDTPA claim in Part I, above, leaves 
Counts 7 through 9 as the targets of this aspect of Defendants’ motion.  The Parties seem 
to agree that this choice-of-law question matters.  Defendants have identified material 

conflicts between Utah and Minnesota consumer-protection statutes, id. at 23–24, and 
Plaintiffs do not dispute that these conflicts exist, see Pls.’ Mem. in Opp’n at 18–20. 
    Not  long  after  each  of  them  purchased  a  NordicTrack  treadmill,  Barclay  and 
Nordick signed up as members of ICON’s iFit service.  See Barclay I, 

, 
at *1 (describing treadmill purchases), *3 (describing iFit enrollment).  When they signed 

up for the iFit service, Barclay and Nordick agreed to the iFit “Terms of Use.”  Id. at *3.  
Among other provisions, the Terms of Use included a Utah choice-of-law clause: 
         GOVERNING LAW.                                                  

         The ICON Sites (excluding any linked sites) and ICON            
         Services are controlled by us from our offices within the       
         State of Utah, United States of America.  The ICON Sites        
         and  ICON  Services  can  be  accessed  from  all  fifty  (50)  
         states, as well as from other countries around the world.  As   
         each of these places has laws that may differ from those of     
         Utah, by accessing the ICON Sites or ICON Services, both        
         of us agree that the statutes and laws of the State of Utah,    
         without regard to the conflicts of laws principles thereof,     
         will apply to all matters relating to the use of the ICON Sites 
         and the purchase of ICON Services available through the         
         ICON Sites.                                                     


9    Defendants do not seek dismissal of Ovsak’s Minnesota claims on this basis.  
Defendants acknowledge that Ovsak assented to an earlier version of the Terms of Use 
than did Barclay and Nordick, and that the choice-of-law clause in that earlier version was 
narrower.  See Defs.’ Mem. in Supp. at 26 n.12.                           
Am. Brammer Decl. Ex. 7 [ECF No. 45-7 at 10].  The Terms of Use defined “ICON” 
broadly  to  include  “its[]  affiliates,  partners,  licensors,  subsidiaries,  and/or  related 
companies.”  Id. at 2.  From this broad definition, Barclay I concluded that “the Terms of 

Use governed, not merely Barclay and Nordick’s relationship with ICON resulting from 
their iFit registration, but also NordicTrack.”  

, at *10 n.6.      
    Framed in the choice-of-law clause’s terms, the fighting issue is whether Barclay 
and Nordick’s claims are “matters relating to the use of the ICON Sites.”  Defendants argue 
they are because Barclay and Nordick allege in support of the at-issue claims that they read 

and relied on continuous horsepower representations on the NordicTrack website.  Defs.’ 
Mem. in Supp. at 25–26.  In taking the opposite position, Barclay and Nordick rely 
exclusively on arbitrators’ orders dismissing their arbitration claims as not arbitrable.  Pls.’ 
Mem. in Opp’n at 18–20.  Barclay and Nordick do not argue that the choice-of-law clause 
is invalid.  Nor do they dispute that “ICON” as used in the choice-of-law clause includes 

NordicTrack.                                                              
    The Parties don’t identify what law applies to interpret and apply the choice-of-law 
clause here, but the answer appears to be Minnesota law.  See Am. Online, Inc. v. Nat’l 
Health Care Discount, Inc., 

 (N.D. Iowa 2000) (“A federal 
court exercising supplemental jurisdiction over state-law claims in a federal-question 

lawsuit must follow the choice-of-law rules of the forum state.” (collecting cases)); see 
also Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 

, 1164 (9th Cir. 1996) 
(“The first step in interpreting the [choice-of-law] clause is to apply the correct choice-of-
law rules.  In a federal question action where the federal court is exercising supplemental 
jurisdiction over state claims, the federal court applies the choice-of-law rules of the forum 
state—in this case, California.”); CPI Card Grp., Inc. v. Dwyer, 

 
(D. Minn. 2018).10                                                        

    Minnesota courts apply ordinary principles of contract interpretation to choice-of-
law clauses.  Katch, LLC v. Sweetser, 

 (D. Minn. 2015); see White 
v. Catheter Robotics, Inc., Nos. A13-1401, A13-2159, 

, at *5–6 (Minn. 
Ct. App. June 30, 2014); Perry v. Zurich N. Am., Inc., No. A10-608, 

, at 
*3 (Minn. Ct. App. Jan. 11, 2011).  “Whether a choice-of-law clause governs a non-

contractual claim is a context-specific question that depends on both the language of the 
clause and the nature of the claim asserted.”  Syngenta Seeds, LLC v. Warner, No. 
20-cv-1428 (ECT/BRT), 

, at *8 (D. Minn. Feb. 22, 2021).     
    Here, in view of the Parties’ arguments, the better answer is that the Utah choice-
of-law clause applies and precludes Barclay and Nordick from asserting the challenged 

Minnesota statutory claims.  The choice-of-law clause is expansive.  Relevant here, it says 
that Utah law “will apply to all matters relating to the use of the ICON Sites.”  Am. 
Brammer Decl. Ex. 7 at 10.  The ordinary meaning of the phrase “relating to” is broad.  
Morales v. Trans World Airlines, Inc., 

, (1992) (“The ordinary meaning of 
these words is a broad one—‘to stand in some relation; to have bearing or concern; to 


10   In Northwest Airlines, Inc. v. Astraea Aviation Services, Inc., a diversity case, the 
Eighth Circuit seems to have applied Minnesota law to determine whether a contractual 
Minnesota choice-of-law clause required tort claims to be governed by Minnesota law.  

 (8th Cir. 1997).  But it is not clear whether the court applied Minnesota 
law because Minnesota was the forum state or because the clause chose Minnesota law.  
See 

                                                                   
pertain; refer; to bring into association with or connection with[.]’” (quoting Black’s Law 
Dictionary 1158 (5th ed. 1979))).  And there is no question that Barclay and Nordick’s 
misrepresentation-based claims don’t just “stand in some relation to” their use of the ICON 

sites—they depend on their “use of” the NordicTrack website.  That is where Barclay and 
Nordick allege to have reviewed and relied on NordicTrack’s representations regarding its 
treadmills’  continuous  horsepower  ratings.    Third  Am.  Compl.  ¶  17  (Barclay),  ¶ 23 
(Nordick).  And these allegations are central to their claims in Counts 7 through 9.  Id. 
¶¶ 172, 179, 189–90.                                                      

    Barclay and Nordick’s exclusive reliance on the arbitrators’ orders of dismissal is 
not persuasive.11  No authority is cited to support the proposition that the arbitrators’ orders 
are binding here.  Neither arbitrator considered the choice-of-law clause.  See Notice of 
Arb. Order, Ex. A (Barclay) [ECF No. 109-1] (“Arb. Order”); Notice of Arb. Order, Ex. A 
(Nordick) [ECF No. 115 at 4].  Their task was to determine arbitrability. 

    The arbitrators’ dismissals were based on three independent conclusions concerning 
arbitrability, none of which controls the choice-of-law question here.  The first two of these 
are clearly distinguishable from the choice-of-law question.  To start, the arbitrators 
determined that Barclay and Nordick’s claims did not “aris[e] from the use of . . . the ICON 
Sites.”  Arb. Order at 5–9.  In reaching this conclusion, the arbitrator observed: 

         The operative words here are not merely “arising from” but      
         “dispute arising from the use”—requiring a clear, direct, and   
         active connection between the “dispute” and “use.”  Moreover,   
         the  similar  words  “arising  out  of”  have  been  held  to  be 

11   Though two arbitrators issued dismissal orders, the arbitrator who issued the second 
dismissal order “adopt[ed] and incorporate[ed] by reference the reasoning of” the first and 
issued no separate, explanatory memorandum.  Notice of Arb. Order, Ex. A (Nordick).    
         “relatively narrow as arbitration clauses go . . . and ‘understood 
         to mean originating from, having its origin in, growing out of  
         or flowing from,’” United States ex rel. Welch v. My Left Foot  
         Children’s Therapy, LLC, 

 (9th Cir. 2017).    

Id. at 8.  The “‘relatively narrow’” character of the arbitration clause in this respect 
contrasts with the breadth of the choice-of-law clause.  Second, the arbitrators noted that 
broader language defining the arbitration clause’s reach “logically refers to the Terms of 
Use, not the ICON sites.”  Id. at 9.  Here, by contrast, there is no question the choice-of-
law clause’s broad phrase “relating to” refers “to the use of the ICON Sites.”  Am. Brammer 
Decl. Ex. 7 at 10.                                                        
    The arbitrators’ final ground for determining that Barclay and Nordick’s claims 
were not arbitrable was that the arbitration clause did not apply retroactively.  Arb. Order 
at 9–10.  If the arbitration clause isn’t retroactive, the argument goes, neither is the Utah 
choice-of-law clause, leaving Barclay and Nordick free to assert their Minnesota statutory 
claims.    The  retroactivity  question  is  somewhat  murky.    Apart  from  what’s  in  the 
arbitrators’ order, nothing in the Parties’ briefing or the record addresses this issue, and a 
search of Minnesota law has identified no cases or rules that might control or directly 

answer the question.  Regardless, the better answer is that the choice-of-law clause applies 
retroactively.  The contract’s text supports this conclusion more than not.  The Terms of 
Use include a clause addressing modifications that reads, in part: “no revisions to these 
Terms of Use will apply to any dispute between you and ICON that arose prior to the 
effective date of those revisions.”  Am. Brammer Decl. Ex. 7 at 2.  But no clause similarly 

limits the reach of the then-in-effect (and applicable here) Terms of Use.  Also, as 
discussed,  the  choice-of-law  clause  specifically  is  quite  broad,  reaching  “all  matters 
relating to the use of the ICON sites” without any temporal limitation.  Id. at 10.  Cases 
provide  persuasive  support  for  the  conclusion  that  the  choice-of-law  clause  applies 
retroactively.  In TradeComet.com LLC v. Google, Inc., for example, the Second Circuit 

determined that a forum-selection clause applied retroactively, observing along the way 
that “courts have found claims arising from or related to conduct occurring before the 
effective date of an arbitration clause to be within the scope of a clause that ‘is not limited 
to claims arising under the agreement itself.’”  435 Fed. App’x 31, 34 (2d Cir. 2011) 
(quoting In re Verisign, Inc. Derivative Litig., 

 (N.D. Cal. 

2007)).  Here, as in TradeComet.com LLC, the choice-of-law clause is not limited to claims 
arising under the Terms of Use.  See also Warwick v. Schneider Nat’l, Inc., No. 20 C 1995, 

, at *2–4 (N.D. Ill. Oct. 5, 2020) (applying forum-selection clause 
retroactively because, among other reasons, clause applied to “any dispute” not subject to 
arbitration  provision  and  did  “not  limit  coverage  temporally,  to  the  agreement,  or 

otherwise”).                                                              
    For all these reasons, then, the Utah choice-of-law clause precludes Barclay and 
Nordick from asserting the challenged Minnesota statutory claims.  It appears that the usual 
next step in this situation is to dismiss those claims.  See, e.g., Nw. Airlines, Inc., 

 n.4; Buche v. Liventa Bioscience, Inc., 

 (D. Minn. 2015).  

Citing these authorities, Defendants argue that dismissal is appropriate.  Defs.’ Mem. in 
Supp. at 27.  Plaintiffs do not oppose this argument or suggest an alternative course in their 
brief.  See Pls.’ Mem. in Opp’n at 18–20.  Therefore, the challenged Minnesota statutory 
claims in Counts 7 through 9 of the Third Amended Complaint will be dismissed as to 
Barclay and Nordick on this basis.                                        
                               B                                         

    Defendants argue that these same Minnesota statutory claims must be dismissed on 
their merits, now with respect to just Ovsak.  Defendants argue that Ovsak has not alleged 
a false or misleading representation, reliance, or causation, essential elements of each of 
these claims.  Defs.’ Mem. in Supp. at 19–22; Defs.’ Reply Mem. at 5–8.   
    In addition to Rule 12(b)(6)’s familiar standards, Defendants’ challenge to the 

factual sufficiency of these claims implicates the particularity-in-pleading requirement of 
Rule 9(b).  See Nunez v. Best Buy Co., 

 (D. Minn. 2016).  “To satisfy 
the particularity requirement of Rule 9(b), the complaint must plead such facts as the time, 
place, and content of the defendant’s false representations, as well as the details of the 
defendant’s fraudulent acts, including when the acts occurred, who engaged in them, and 

what was obtained as a result.”  U.S. ex rel. Joshi v. St. Luke’s Hosp., Inc., 

 (8th Cir. 2006).  “The claim must identify who, what, where, when, and how.”  U.S. 
ex rel. Costner v. United States, 

, 888 (8th Cir. 2003).  While Rule 9(b) 
requires particularity in pleading, “a complaint need not be filled with precise detail.”  
Moua v. Jani-King of Minn., Inc., 

 (D. Minn. 2009).  Rather, 

“Rule 9(b) is to be read in the context of the general principles of the Federal Rules, the 
purpose of which is to simplify pleading.  Thus, the particularity required by Rule 9(b) is 
intended to enable the defendant to respond specifically and quickly to the potentially 
damaging allegations.”  Costner, 317 F.3d at 888.  “The level of particularity required 
depends on the nature of a case,” E-Shops Corp. v. U.S. Bank Nat’l Ass’n, 

 (8th Cir. 2012), and to determine whether a party has satisfied Rule 9(b), courts look 
to “the complexity or simplicity of the transaction or occurrence, the relationship of the 

parties and the determination of how much circumstantial detail is necessary to give notice 
to the adverse party and enable him to prepare a responsive pleading,” Payne v. United 
States, 

 (8th Cir. 1957) (citation omitted).             
    Ovsak alleges facts plausibly showing a false or misleading representation, reliance 
(assuming it is required),12 and causation, and he has done so with the particularity required 

by Rule 9(b).  The Third Amended Complaint’s allegations showing the false or misleading 
character  of  Defendants’  continuous-horsepower  representations  are  extensive  and 
particular.   See Third Am. Compl. ¶¶ 8–11, 20, 31–58.  Defendants’ argument that 
Plaintiffs have not alleged a false or misleading statement, Defs.’ Mem. in Supp. at 21, 
mirrors their argument that Plaintiffs failed to allege the breach of an objective warranty, 

and it is not persuasive for the same reasons discussed in that context.  Ovsak alleges 
specifically that he relied on just such a false or misleading representation in purchasing 
his NordicTrack treadmill.  Third Am. Compl. ¶ 20.  Defendants’ contention that Plaintiffs 

12   Ovsak’s Minnesota statutory consumer-protection claims do not require the level of 
reliance required for claims of common law fraud under Minnesota law—“only . . . that 
the defendant engaged in conduct prohibited by the statutes and that the plaintiff was 
damaged thereby.”  Grp. Health Plan, Inc. v. Philip Morris Inc., 

, 12–13 
(Minn. 2001) (discussing claims under Minn. Stat. § 325F.69, subd. 1, § 325F.67, and 
§ 325D.13); but see Weigand v. Walser Auto. Grps., Inc., 

, 812–13 (Minn. 
2004) (explaining that, under Group Health, “reliance is [still] a component of the causal 
nexus requirement for a private consumer fraud class action under 

, subd. 
3a,” but that the “justifiable reliance standard of common law fraud” is “not necessarily 
require[d]”).                                                             
“fail to plead that they actually viewed any of the allegedly misleading representations that 
they cite” is not persuasive.  Defs.’ Mem. in Supp. at 20–21.  Again, as discussed earlier, 
Plaintiffs have alleged many particular examples of misrepresentations Defendants made 

online,  in  store  displays,  and on  the  treadmills  themselves.    See  Third  Am.  Compl. 
¶¶ 47–58.  Plaintiffs do not allege they viewed and relied on all of these examples.  No 
authority is cited suggesting they must.13  Paired with Ovsak’s allegations regarding the 
particular  misrepresentation  on  which  he  relied,  

  ¶¶  19–20,  these  allegations  are 
sufficient.  Ovsak also alleges causation.  In particular, Ovsak alleges that Defendants’ 

continuous-horsepower representations were a “material factor” in his decision to purchase 
the treadmill and that he “would not have purchased his NordicTrack Commercial 2950 
treadmill or would have paid considerably less if he had known the true horsepower 
capabilities.”  

  Ovsak alleges that he used the treadmill in his residence (until it “stopped 
working” for reasons unconnected to Ovsak’s claims here) and that he “has not received 

the CHP that Defendants represented.”  Id. ¶ 21.                          
                               C                                         
    Defendants argue that Ovsak’s claims under the Minnesota Consumer Fraud Act, 
False Statement in Advertising Act, and Unlawful Trade Practices Act must be dismissed 
because he has not alleged a public benefit.  A private party asserting claims under these 


13   Defendants rely on Knotts v. Nissan North America, Inc., 

 (D. 
Minn. 2018), but that case is distinguishable.  There, a plaintiff cited a statement from the 
defendant’s website, but did not identify “whether he viewed it, when he viewed it, and 
whether he viewed it in Minnesota.”  

.  The plaintiff did “not allege that he 
viewed [an] advertisement, much less whether he viewed it prior to purchasing his car, and 
whether a causal link existed between the two.”  

.  We don’t have anything like 
that here.                                                                
statutes may do so only through Minnesota’s Private Attorney General Statute, 

, subds. 1, 3a.  See Johnson v. Bobcat Co., 

, 1141–42 (D. Minn. 
2016).  Section 8.31 is available “only to those claimants who demonstrate that their cause 

of action benefits the public.”  Ly v. Nystrom, 

 (Minn. 2000).  “[A] 
single one-on-one transaction in which the fraudulent misrepresentation, while evincing 
reprehensible conduct, was made only to [the plaintiff]” generally “does not advance state 
interests and enforcement has no public benefit.”  Id.; see Davis v. U.S. Bancorp, 

, 767–68 (8th Cir. 2004).  On the other hand, a public benefit can be shown when a 

defendant has made false or misleading statements to “the public at large.”  Collins v. Minn. 
Sch. of Bus., Inc., 

 (Minn. 2003).  In Collins, the Minnesota Supreme 
Court reviewed a state district court’s denial of attorneys’ fees to plaintiffs who had settled 
their claims against a private post-secondary school for “false, misleading, and confusing 
statements about its sports medicine program.”  

.  The district court denied 

attorneys’ fees on the plaintiffs’ false advertising and consumer fraud claims for lack of a 
public benefit, reasoning that “only a relatively small group of persons were injured.”  

.  The Minnesota Supreme Court reversed, holding that the district court had 
“misapplied” its precedent by “focus[ing] on the number of ‘persons who were injured’” 
and “ignoring the fact that [the defendant] misrepresented the nature of its program to the 

public at large.”  

  The Court then described different ways the defendant had “presented 
its program to the public at large,” appearing to rest its public-benefit finding on this basis. 
    Collins, binding here, answers whether Ovsak alleges facts plausibly showing a 
public benefit.  He does.  The Third Amended Complaint includes many allegations that 
Defendants directed false or misleading advertisements to the public at large.  Third Am. 
Compl. ¶ 3 (alleging that Defendants manufacture, market, and sell treadmills “throughout 
the country”); id. ¶¶ 4, 47–54 (alleging that Defendants have sold and falsely advertised 

NordicTrack treadmills online through their own websites, through major retailers, and in 
prominent online marketplaces, like Amazon.com); id. ¶¶ 6, 58 (alleging that Defendants 
made false misrepresentations through “in-store floor model displays across the country” 
at retailers like Sears, Best Buy, and “most” of 720 Dick’s Sporting Goods locations, which 
span “47 states”).  Defendants argue that Ovsak has not alleged a public benefit because 

he may only recover “monetary damages for past harm” and not prospective relief.  Defs.’ 
Mem. in Supp. at 28–30.  Allegations “that ICON’s advertisements are disseminated to the 
general public,” Defendants say, are “insufficient to establish a public benefit.”  Id. at 30.  
Collins does not support Defendants’ argument.  Its focus was on whether the defendant 
“misrepresented the nature of its program to the public at large.”  

.  The 

Minnesota Supreme Court did not focus on whether the plaintiff sought only damages or 
injunctive relief also.  That question seems not to have factored into the decision. 
                              VI                                         
    The final issue is what to do about Count 10 of the Third Amended Complaint, titled 
“Negligent  Misrepresentation.”    It  helps  to  explain  how  this  problem  surfaced.  

Defendants reasonably understood Plaintiffs to assert a claim in Count 10 for negligent 
misrepresentation.  That is the Count’s title, and it includes allegations that Defendants 
acted “negligently.”  Third Am. Compl. ¶ 202.  On that understanding, Defendants argued 
in their opening brief that negligent misrepresentation claims are barred by Minnesota’s 
economic loss doctrine, codified at 

, subd. 4.  Defs.’ Mem. in Supp. 
at 31–32; see Valspar Refinish, Inc. v. Gaylord’s, Inc., 

 (Minn. 2009) 
(“We conclude that under 

, subd. 4, a buyer of goods is barred from 

bringing a common-law negligent misrepresentation claim against the seller that relates to 
the goods sold.”).  In their response brief, Plaintiffs conceded that point but argued that 
what they really assert in Count 10 is a fraud claim.  Pls.’ Mem. in Opp’n at 27–29.  A 
fraud claim would solve the economic loss problem because Minnesota’s economic loss 
statute  excepts  common  law  misrepresentation  claims  relating  to  goods  sold  if  “the 

misrepresentation was made intentionally or recklessly.”  

, subd. 4.  
Plaintiffs seek leave to amend Count 10 to “remove references to negligence.”  Pls.’ Mem. 
in Opp’n at 29 n.13.  Defendants oppose this request as “procedurally and substantively 
improper” and contend that Plaintiffs “do not identify any facts that could support an 
intentional (or even reckless) misrepresentation claim.”  Defs.’ Reply Mem. at 15–16. 

    The better answer is to grant Plaintiffs leave to amend in this respect.  Federal Rule 
of Civil Procedure 8(a)(2) requires that pleadings contain “a short and plain statement of 
the claim showing that the pleader is entitled to relief.”  Notice pleading serves “to give 
the opposing party fair notice of the nature and basis or grounds for a claim, and a general 
indication of the type of litigation involved.”  N. States Power Co. v. Fed. Transit Admin., 

, 1056–57 (8th Cir. 2004) (citation omitted).  “[T]he pleading requirements 
under the Federal Rules are relatively permissive, [although] they do not entitle parties to 
manufacture claims, which were not pled, late into the litigation for the purpose of avoiding 
summary judgment.”  Id. at 1057.                                          
    The Third Amended Complaint includes allegations plausibly showing the elements 
of a fraud claim under Minnesota law.  Plaintiffs allege that Defendants provided false and 
misleading information and “knew or should have known that the[] CHP representations 

were false . . . or made them without knowledge of their truth or falsity.”  Third Am. 
Compl. ¶¶ 200–01.  Plaintiffs also allege to have “reasonably and justifiably relied” on the 
misrepresentations, which they say “were intended to induce and actually induced” them 
to “purchase or pay a premium price” for their treadmills.  Id. ¶ 203.14  
    As pleaded, however, Count 10 is internally inconsistent.  Though Plaintiffs include 

allegations tracking the elements of a fraud claim under Minnesota law, Valspar Refinish, 
Inc., 

, they also allege “Defendants negligently misrepresented and/or, 
at  a  minimum,  negligently  omitted  material  facts  concerning  the  Treadmill  power 
representations,”  Third  Am.  Compl.  ¶  202,  leaving  the  impression  that  the  claim  is 
negligence-based.  Granting leave to amend in this respect will not prejudice Defendants.  

Plaintiffs have not waited to assert a new legal theory until “the eve of summary judgment,” 
N.  States  Power  Co.,  358  F.3d  at  1057,  or  after  the  close  of  discovery,  Howard  v. 
Weidemann, No. 20-cv-1004 (ECT/LIB), 

, at *6–7 (D. Minn. Dec. 22, 
2021).                                                                    



14   Defendants point out that it is somewhat unclear whether Plaintiffs intend to assert 
a fraudulent omission claim but argue that, if they do, that claim should be dismissed.  
Defs.’ Mem. in Supp. at 22 n.10.  Plaintiffs have not alleged “special circumstances that 
trigger a duty to disclose” and are therefore not understood to assert a claim for fraudulent 
omission.  Graphic Commc’ns Loc. 1B Health & Welfare Fund A v. CVS Caremark Corp., 

 (Minn. 2014).                                         

    Therefore, based on all the files, records, and proceedings in the above-captioned 
matter, IT IS ORDERED THAT:                                               

    1.   Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint [ECF 
No. 116] is GRANTED IN PART and DENIED IN PART as follows:                
         a.  Plaintiffs’ claims under the Minnesota Deceptive Trade Practices Act 
             (Count 6) are DISMISSED without prejudice for lack of subject-
             matter jurisdiction.                                        

         b.  Plaintiffs’ claims for breach of written warranty under the Magnuson-
             Moss Warranty Act (Count 2) are DISMISSED with prejudice and 
             on the merits.                                              
         c.  Plaintiffs’ remaining breach-of-warranty claims (Counts 1, 3, 4, and 5) 
             are DISMISSED without prejudice.  Plaintiffs are granted leave to 

             amend their Third Amended Complaint to address their failure to 
             allege facts plausibly showing adequate pre-suit notice.  Any amended 
             complaint shall be filed on or before March 11, 2022.  If no amended 
             complaint is filed by that deadline addressing this issue, then Counts 
             1, 3, 4, and 5 will be deemed dismissed with prejudice and on the 

             merits.                                                     
         d.  Plaintiffs  Teeda  Barclay  and  Nicole  Nordick’s  claims  under  the 
             Minnesota  Consumer  Fraud  Act  (Count  7),  the  Minnesota  False 
             Statement in Advertising Act (Count 8), and the Minnesota Unlawful 
             Trade Practices Act (Count 9) are DISMISSED with prejudice and 
             on the merits.                                              
         e.  Defendants’ motion is in all other respects DENIED.         

         f.  Plaintiffs are granted leave to amend their Third Amended Complaint 
             to clarify that Count 10 asserts a fraud claim.  Any amended complaint 
             addressing this issue shall be filed on or before March 11, 2022. 
    2.   The Clerk of Court is directed to amend the case caption by changing the 
name of Defendant Icon Health & Fitness, Inc. to the following: iFit Health & Fitness 

Inc., f/k/a Icon Health & Fitness, Inc.                                   

Dated: February 17, 2022           s/ Eric C. Tostrud                     
                                  Eric C. Tostrud                        
                                  United States District Court           

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


Teeda Barclay, Nicole Nordick, and Jay    File No. 19-cv-2970 (ECT/DTS)   
Ovsak, individually and on behalf of others                               
similarly situated,                                                       

         Plaintiffs,                                                     
                                        OPINION AND ORDER                
v.                                                                        

Icon Health & Fitness, Inc.1 and                                          
NordicTrack, Inc.,                                                        

         Defendants.                                                     


Wilbert  B.  Markovits,  Terence  Coates,  and  Justin  C.  Walker,  Markovits,  Stock  & 
DeMarco, LLC, Cincinnati, OH; Karl L. Cambronne, Bryan L. Bleichner, Jeffrey D. Bores, 
and Christopher P. Renz, Chestnut Cambronne PA, Minneapolis, MN; and Nathan D. 
Prosser, Hellmuth & Johnson PLLC, Edina, MN, for Plaintiffs Teeda Barclay, Nicole 
Nordick, and Jay Ovsak.                                                   

Michael D. Leffel, Foley & Lardner LLP, Madison, WI; and X. Kevin Zhao, Lawrence M. 
Shapiro, Aaron P. Knoll, and Nicholas Scheiner, Greene Espel PLLP, Minneapolis, MN, 
for Defendants Icon Health & Fitness, Inc. and NordicTrack, Inc.          


    Plaintiffs Teeda Barclay, Nicole Nordick, and Jay Ovsak allege that NordicTrack 
treadmills each of them purchased cannot achieve or maintain the continuous horsepower 
Defendants represented the treadmills were capable of.  In a Third Amended Class Action 
Complaint, Plaintiffs assert several claims on their own behalf and on behalf of proposed 

1    Defendants ask that the Clerk be directed to update the case caption to reflect that 
Defendant Icon Health & Fitness, Inc. has changed its name to “iFit Health & Fitness Inc.”  
Mem.  in  Supp.  at  1  n.1  [ECF  No.  118].    Plaintiffs  have  not  opposed  this  change.  
Defendants’ request will therefore be granted.                            
nationwide and Minnesota-specific classes of persons who also purchased NordicTrack 
treadmills.  Now that questions concerning whether Barclay and Nordick must arbitrate 
their claims individually have been answered “no” by arbitrators, Defendants have moved 

to dismiss Plaintiffs’ complaint.  Defendants’ motion will be granted in part and denied in 
part.                                                                     
    Essential background facts and procedural posture are described in two prior orders: 
Barclay v. ICON Health & Fitness, Inc., No. 19-cv-2970 (ECT/DTS), 

 
(D. Minn. Oct. 15, 2020) (“Barclay I”), and Barclay v. ICON Health & Fitness, Inc., __     

F. Supp. 3d __, No. 19-cv-2970 (ECT/DTS), 

 (D. Minn. July 27, 2021) 
(“Barclay II”).  Familiarity with those orders is presumed here.  To what’s in those orders, 
add that arbitrators dismissed Plaintiffs Barclay and Nordick’s arbitration claims for lack 
of arbitrability, and you have all you need to know to follow along with this order. 
                               I                                         

    Defendants seek essentially to clarify that Barclay I dismissed Plaintiffs’ claims 
under the Minnesota Uniform Deceptive Trade Practices Act (“MDTPA”), Minn. Stat. § 
325D.43, et seq., for lack of subject-matter jurisdiction.  It did.  The jurisdictional issue in 
Barclay I was whether Plaintiffs alleged facts showing their Article III standing to seek 
injunctive  relief—specifically,  whether  Plaintiffs  alleged  “some  plausible  prospect  of 

future interactions between Plaintiffs and Defendants” sufficient to show “a threat of future 
harm [that is] ‘real and immediate.’”  Barclay I, 

, at *5 (quoting City of 
Los Angeles v. Lyons, 

 (1983)).  Barclay I concluded that Plaintiffs did 
not plausibly allege any relevant threat of future interactions between them and Defendants 
and that, as a result, “Plaintiffs lack standing to seek injunctive relief.”  

  Consequently, 
“Plaintiffs’  claims  for  injunctive  relief  [were  dismissed]  for  lack  of  subject-matter 
jurisdiction.”  Id. at *15.  The MDTPA’s only remedy is injunctive relief, Minn. Stat. 

§ 325D.45, subd. 1, so Barclay I necessarily resulted in the dismissal of Plaintiffs’ MDTPA 
claims.                                                                   
    Plaintiffs do not seem to dispute that Barclay I dismissed their MDTPA claims.  
Instead, Plaintiffs seek reconsideration of this holding based on a subsequent decision, 
Cleveland  v.  Whirlpool  Corp.,  No.  20-cv-1906  (WMW/KMM),  

 

(D. Minn. July 27, 2021).  Failing that, Plaintiffs argue that at least Ovsak has standing to 
seek injunctive relief based on allegations in the Third Amended Complaint showing “a 
plausible prospect of future interactions with NordicTrack to repair” his treadmill.  Pls.’ 
Mem. in Opp’n at 21–22 [ECF No. 122].                                     
    Article III requires an injunction-seeking plaintiff to show a threat of ongoing or 

future harm of the kind the requested injunction is intended to prevent, Lyons, 

; see Barclay I, 

, at *5, and the MDTPA mirrors these requirements.2  
The MDTPA says that “[a] person likely to be damaged by a deceptive trade practice of 
another may be granted an injunction against it.”  Minn. Stat. § 325D.45, subd. 1.  The 
MDTPA’s  requirement  that  plaintiffs  show  they  are  “likely  to  be  damaged”  seems 

indistinguishable from Article III’s threat-of-future-harm requirement for injunctive relief.  
In other words, under the MDTPA, like Article III, a plaintiff cannot obtain an injunction 

2    Not that it would matter if it didn’t.  A legislature, be it Congress or a state 
legislature, cannot make injunctive relief available in a federal court on a lesser showing 
than Article III requires.  Raines v. Byrd, 

, 820 n.3 (1997). 
without showing a likelihood of future injury.  And like Article III, the MDTPA requires 
that such future injury be the kind the requested injunction is intended to prevent.  The 
statute makes clear that whatever future damage a plaintiff alleges is likely must result from 

“a deceptive trade practice” and not some other kind of activity.  The MDTPA continues 
on, in § 325D.44, subd. 1, to identify acts constituting deceptive trade practices that may 
be enjoined, and there are thirteen possibilities.                        
    Here, Plaintiffs’ allegations are insufficient whether viewed from the perspective of 
Article III or the MDTPA.  Plaintiffs identify three deceptive trade practices (from among 

the MDTPA’s thirteen options) in their Third Amended Complaint, each based solely on 
Defendants’ alleged misrepresentations regarding their treadmills’ continuous horsepower.  
Third  Am.  Compl.  ¶¶  162–63  [ECF  No.  80].    If  Plaintiffs  were  damaged  by  those 
misrepresentations, that occurred at purchase (in the past).  See id. ¶ 166 (alleging injuries 
resulting from “premium price charged to customers”).  And Plaintiffs do not connect the 

only future interactions they allege—the possibility that NordicTrack may repair Ovsak’s 
treadmill—to a deceptive trade practice.  In other words, Plaintiffs allege no facts plausibly 
showing how an injunction targeting Defendants’ continuous-horsepower representations 
might have anything to do with Defendants’ possible future repairs to Ovsak’s treadmill.  
Plaintiffs allege only that Ovsak’s treadmill has “stopped working.”  Id. ¶ 21.  They do not 

allege that the treadmill’s disrepair relates to its inability to achieve a particular level of 
continuous horsepower or that a repair would remedy that issue.           
    The case on which Plaintiffs rely to seek reconsideration of this aspect of Barclay I, 
Cleveland v. Whirlpool Corp., seems different.  There, the plaintiff’s MDTPA claim was 
based  on  representations  by  the  defendant  Whirlpool  that  some  dishwashers  it 
manufactured were defect-free when (the plaintiff alleged) they were not.  Cleveland, 

, at * 9.  Importantly, the plaintiff also alleged that it was necessary to repair 

or replace her dishwasher but that any repair or replacement would continue to suffer from 
the alleged defect.  Id. at *10.  Presumably because the injunction the plaintiff sought would 
require remedying the alleged defect, the plaintiff’s allegations of future injury associated 
with anticipated repair or replacement were enough.  We don’t have anything like that here.  
Plaintiffs lack Article III standing to obtain injunctive relief, and their MDTPA claims in 

Count 6 of the Third Amended Complaint will be dismissed for lack of subject-matter 
jurisdiction.                                                             
                               II                                        
    Defendants  argue  that  damages  are  an  element  of  every  asserted  claim,  that 
Plaintiffs do not allege facts plausibly showing that they were injured, and that “Plaintiffs’ 

failure to plead damages is fatal to all of their claims”—both as a jurisdictional matter and 
on the claims’ merits.  Defs.’ Mem. in Supp. at 8, 12 n.5 [ECF No. 118].  Plaintiffs argue 
that this “is a ‘classic mislabeling case’—where consumers suffer damages by paying price 
premiums for products that are not as warranted and/or advertised.”  Pls.’ Mem. in Opp’n 
at 6.  Defendants do not argue that price-premium damages are unavailable as a matter of 

law.3  In view of the Parties’ arguments, then, the question boils down to whether Plaintiffs 
have alleged facts plausibly showing they suffered “price-premium” damages. 

3    One case from this district holds that price-premium damages are available under 
Minnesota law.  Laughlin v. Target Corp., No. 12-cv-489 (JNE/JSM), 

, 
at *4 (D. Minn. July 27, 2012) (“When a complaint alleges misrepresentation or fraud that 
    There is a “long-standing rule that no tort claim for economic damages lies when a 
product is merely at risk of failing.”  Penrod v. K&N Eng’g, Inc., 

, 673 (8th 
Cir. 2021); see In re Polaris Mktg., Sales Pracs., and Prod. Liab. Litig., 

, 796–

97 (8th Cir. 2021); Wallace v. ConAgra Foods, Inc., 

 (8th Cir. 2014); 
O’Neil v. Simplicity, Inc., 

 (8th Cir. 2009); Briehl v. Gen. Motors Corp., 

 (8th Cir. 1999).  In Penrod, Polaris, and Wallace, the plaintiffs’ failure 
to plead more than a risk of product failure was considered an Article III jurisdictional 
problem;  “O’Neil and Briehl both  held  that  plaintiffs  failed  to  state  a  claim,  without 

discussing standing and the requirement of injury in fact.”  Polaris, 9 F.4th at 797.  The 
summary of Briehl provided by the court in Polaris is particularly instructive: 
         [In  Briehl],  plaintiffs  alleged  that  anti-lock  brakes  in  their 
         vehicles  were  defective  because  they  performed  in  a      
         counterintuitive  way  that  could  cause  drivers  to  react   
         inappropriately during emergencies.  Id. at 626.  The plaintiffs 
         alleged  economic  injury  on  the  theory  that  the  brakes   
         “diminished the vehicles’ resale value,” but they did not allege 
         that the brakes “malfunctioned or failed.”  Id. at 628.  This   
         court concluded that the plaintiffs’ “conclusory assertions” that 
         they suffered injuries, and that the brakes were defective, were 
         “insufficient as a matter of law to plead a claim” for economic 
         injury.  Id. at 629.                                            

In re Polaris, 9 F.4th at 796–97.                                         
    Here, in contrast to the facts of these Eighth Circuit cases, Plaintiffs allege facts 
plausibly showing injury and damages.  Plaintiffs allege that each of them paid a higher 
price to purchase a treadmill in reliance on Defendants’ representations that the treadmill 

induces  a  consumer  to  purchase  a  product,  Minnesota  courts  have  recognized  that 
allegations of [price-premium] damages . . . establish a legally sufficient claim for relief.”).  
The Parties have not addressed whether such damages may be available under Utah law. 
could achieve a particular continuous horsepower rating during normal use and that the 
treadmills’ capacity to achieve the continuous horsepower rating held benefits compared 
to less expensive treadmills.  Third Am. Compl. ¶¶ 2, 8, 10, 11, 17, 20, 23, 47–63.  Plaintiffs 

allege that the treadmills each of them purchased could not (and cannot) achieve the 
continuous horsepower during ordinary use as advertised.  Id. ¶¶ 1, 3, 4, 7, 9, 18, 19, 21, 
22, 24, 27–45.  Plaintiffs allege that, had they known the machine’s actual horsepower 
capabilities, each of them would not have purchased the treadmill or would have paid much 
less for the treadmill.  Id. ¶¶ 12, 17, 20, 23.  Plaintiffs have bolstered their price-premium-

damages theory with allegations that continuous horsepower is something consumers and 
industry experts care about, id. ¶¶ 38–43, and that “Defendants have priced [treadmills] 
according to the misleading CHP associated with each model, incrementally increasing the 
price  premium  based  on  successively  higher  CHP  representations,”  id.  ¶ 59.    These 
allegations plausibly show that Plaintiffs were injured.4                 

    Defendants  advance  several  arguments  to  show  that  these  allegations  are  not 
sufficient,  but  these  arguments  are  not  persuasive.    Defendants  argue  that  Plaintiffs 
“nowhere . . . allege that their treadmills were not equipped with motors rated to the listed 
CHPs.”  Defs. Mem. in Supp. at 8.  This argument seems implicitly to rely on Defendants’ 
factual contention that the treadmills were tested and achieved the represented continuous 

horsepower ratings in a laboratory-type environment.  If that understanding of the argument 

4    See Bechtel v. Fitness Equip. Servs., LLC, 

, 474 (S.D. Ohio 2021) 
(finding allegations that plaintiffs, had they known falsity of continuous horsepower 
representations,  “would  not  have  purchased  . . .  [the]  treadmill  or  would  have  paid 
substantially less to purchase one” plausibly showed injury).             
is correct, then the argument is another way of pointing out that Plaintiffs don’t allege that 
the motors are incapable of achieving the represented continuous horsepower rating in any 
setting.  This is true, but Plaintiffs do not need to allege this fact to support their theory that 

the purchased treadmills cannot achieve the represented continuous horsepower rating in a 
typical  residential  or  similar  setting  where  (Plaintiffs  allege)  Defendants  knew  the 
treadmills would be used.  Defendants also point out that Plaintiffs do not “allege that their 
treadmills’ performance was in any way deficient (e.g., they could not run at a certain speed 
or incline).”  

 at 8–9.  This is true in the sense that Plaintiffs do not allege their use of 

the treadmills was impaired in any way.  That’s not Plaintiffs’ theory.  Plaintiffs’ theory is 
that  their  treadmills’  performance  was  deficient  in  comparison  to  the  advertised 
continuous-horsepower rating and that their price-premium injury occurred on purchase.  
Plaintiffs do not—and need not—allege that each of them experienced some noticeable 
impairment during use to plausibly plead this theory.5  Finally, Defendants argue that 

Plaintiffs’ claims are comparable to Briehl and cases like it where plaintiffs sought to 


5    Defendants  cite  In  re  Shop-Vac  Mktg.  &  Sales  Pracs.  Litig.,  NDL  No. 
4:12-md-2380, 

 (M.D. Pa. July 17, 2014).  There, the court denied a 
motion to dismiss consumer-fraud and breach-of-warranty claims on standing grounds.  In 
Defendants’ view of the case, “allegations of performance deficiency were critical to the 
court’s refusal to dismiss the[] claims.”  Defs.’ Mem. in Supp. at 11 n.4.  It is true that the 
plaintiffs “further alleged actual injury” by alleging that the “vacuums did not perform as 
promised for their intended purpose.”  Shop-Vac, 

, at *6 (emphasis 
added).  But there isn’t much question the court in Shop-Vac found allegations like those 
asserted here—that the defendants misrepresented “specifications regarding power and 
tank size,” “that [the plaintiffs] would not have purchased the vacuums but for these 
misrepresentations, and that they therefore paid an unfair price”—sufficient on their own 
to show an economic injury.  Id. at *5, *11 & n.14.  Shop-Vac, then, shows that Plaintiffs 
have plausibly alleged damages and standing.                              
advance tort claims based on unmanifested defects, and courts dismissed the claims.  
Again, this case seems different.  Plaintiffs allege the treadmills do not (and cannot) match 
Defendants’ continuous-horsepower representations in ordinary use.  That “defect” (if it 

can be called that) was manifest at purchase.  To draw an analogy, Plaintiffs don’t allege 
that they purchased cars with unmanifested defects in their power trains; Plaintiffs allege 
that they purchased (and paid a premium for) cars based on representations the cars could 
perform at a high horsepower when, in fact, they could not.  Plaintiffs’ claims will not be 
dismissed for a failure to plausibly plead Article III injury or damages. 

                              III                                        
    Defendants  seek  dismissal  of  Plaintiffs’  written-warranty  claim  under  the 
Magnuson-Moss Warranty Act (“MMWA”) on its merits.                        
         Under the MMWA, a warrantor creates a “written warranty”        
         when it provides a buyer with any of three things with respect  
         to a product: (1) a written affirmation or promise that the     
         product’s  “material  or  workmanship  is  defect  free”;  (2)  a 
         written affirmation or promise that the product “will meet a    
         specified level of performance over a specified period of time”; 
         or (3) a written undertaking “to refund, repair, replace, or take 
         other remedial action with respect to such product in the event 
         that such product fails to meet the specifications set forth in the 
         undertaking.”  See 

(6)(A)–(B).                  

Anderson v. 1399557 Ontario Ltd., No. 18-cv-1672 (PJS/LIB), 

, at *4 
(D. Minn. Nov. 4, 2019).  Plaintiffs advance their MMWA claim under the second 
category.  See Pls.’ Mem. in Opp’n at 12–14.  Defendants argue that Plaintiffs have not 
alleged facts plausibly showing that Defendants promised performance “over a specified 
period of time.”  Defs.’ Mem. in Supp. at 18.  Plaintiffs argue that Defendants made a 
“lifetime” warranty about the performance of their treadmills by advertising, not that the 
treadmills  would  last  for  “a  lifetime,”  but  that  the  treadmills  possess  “continuous” 
horsepower.  Pls.’ Mem. in Opp’n at 12–14.                                
    At issue is § 2301(6)(A)’s temporal element.  To be a written warranty under that 

provision, “the warrantor’s guarantee must contain language that specifically identifies the 
duration of the warranty.”  Kelley v. Microsoft Corp., No. C07-0475MJP, 

, at *5 (W.D. Wash. Sept. 10, 2007); see Dayan v. Swiss-Am. Prods., Inc., No. 15 
Civ. 6895 (DLI) (VMS), 

, at *11 (E.D.N.Y. Jan. 3, 2017) (collecting 
cases).  An “equivocal representation” about product performance over time does not 

suffice.  Schechner v. Whirlpool Corp., 

 (E.D. Mich. 2017).  In 
Anderson,  Judge  Schiltz  reasoned  persuasively  that  a  representation  of  “lifetime” 
performance  does  not  create  a  written  warranty  because  “lifetime”  is  an  inherently 
imprecise measurement and therefore not a “specified period of time.”  See Anderson, 

, at **4–5.                                                     

    Plaintiffs have not alleged facts plausibly showing a written warranty under the 
MMWA.  Plaintiffs do not allege in the Third Amended Complaint that Defendants 
promised continuous horsepower for a lifetime or for some other ascertainable duration.  
As  Plaintiffs  describe  it,  continuous  horsepower  is  a  performance  metric:  the 
“measurement of the motor’s ability to maintain and continuously produce power over an 

extended period of time without exceeding the current rating of the motor.”  Third. Am. 
Compl. ¶ 38.  The Third Amended Complaint includes no allegations suggesting what that 
“extended period” might be.  It would not change things if we assumed that Plaintiffs 
intended this allegation to imply “lifetime” performance.  As Judge Schiltz explained in 
Anderson:  “Promising  that  something  will  last  a  ‘lifetime’  is  not  the  same  thing  as 
promising that something will last for a ‘a specified period of time.’”6  

, 
at *5.  No matter how it is reasonably understood, a promise of “continuous” performance 

is equivocal and lacks the specificity necessary required to be a written warranty under the 
MMWA.  Defendants’ motion insofar as it seeks dismissal of Plaintiffs’ MMWA written-
warranty claims (Count 2) will be granted.                                
                              IV                                         
                               A                                         

    Defendants seek the dismissal of Plaintiffs’ state-law warranty claims.  Minnesota 
and Utah law will be applied to this aspect of Defendants’ motion, though the decision to 
take this approach deserves some explanation.  Plaintiffs assert their state-law warranty 
claims  on  behalf  of  two  proposed  classes:  one  nationwide  and  the  other  limited  to 
Minnesota citizens.  Third Am. Compl. ¶¶ 88–99 (nationwide class), 120–46 (Minnesota 

class).  Plaintiffs do not identify what law applies to the nationwide class’s claim.  See 

 
¶¶  88–99.    Plaintiffs  assert  the  proposed  Minnesota  class’s  warranty  claims  under 
Minnesota law.  

 ¶¶ 120–46.                                            
    The nationwide scope of the class in Count 1 and a Utah choice-of-law clause 
discussed below in Part V raise questions regarding what law should apply to these claims.  


6    Anderson  is  not,  as  Plaintiffs  argue,  “at  odds  with  . . . binding  Eighth  Circuit 
precedent.”  Pls.’ Mem. in Opp’n at 13 n.7.  For this assertion, Plaintiffs cite Marvin 
Lumber and Cedar Co. v. PPG Indus., Inc., 

 (8th Cir. 2000).  That case 
does not analyze an MMWA written warranty claim, so it does not address the temporal 
element of 

(6)(A).                                        
The Parties’ submissions do not specifically address what law governs the proposed 
nationwide class’s warranty claim.  To support their motion, Defendants rely on Minnesota 
and Utah warranty law and identify no relevant conflicts.  Defs.’ Mem. in Supp. at 12–17.  

Though Plaintiffs rely on Minnesota law, they do not object specifically to the idea that 
Utah law might govern their claims, suggest that there is some material conflict between 
Minnesota and Utah law, or suggest that some other state’s law might apply.  Pls.’ Mem. 
in Opp’n at 7–12.  Cases describing the basic elements of a breach-of-warranty claim under 
each state’s law appear to confirm their essential similarity.  Angeles v. Medtronic, Inc., 

 (Minn. Ct. App. 2015) (“The elements of a breach-of-warranty claim 
in Minnesota are (1) the existence of a warranty, (2) breach of the warranty, and (3) 
causation of damages.” (citing Peterson v. Bendix Home Sys., Inc., 

, 52–53 
(Minn. 1982))); Groen v. Tri–O–Inc., 

 (Utah 1983) (“A warranty is an 
assurance by one party to a contract of the existence of a fact upon which the other party 

may rely.  It is intended to relieve the promisee of any duty to ascertain the fact for himself, 
and it amounts to a promise to answer in damages for any injury proximately caused if the 
fact warranted proves untrue.”).                                          
    Though there may be room to question this approach, it makes sense just to follow 
the Parties’ lead and apply shared principles of Minnesota and Utah law here.  There is an 

obvious connection between Plaintiffs’ claims and Minnesota law.  As will be discussed, 
there also is a connection between Barclay and Nordick’s claims and Utah law.  And if 
there is a dispositive difference between Minnesota and Utah law (or the law of any other 
state), it hasn’t been identified.                                        
                               B                                         
    The first issue is whether Plaintiffs have plausibly alleged their state-law warranty 
claims.  Under Minnesota and Utah law, a seller creates an express warranty by “[a]ny 

affirmation of fact or promise” about the sold goods, or “[a]ny description of the goods,” 
that forms “part of the basis of the bargain.”  

(1)(a)–(b); Utah Code 
§ 70A-2-313(1).  Words like “warrant” or “guarantee” are unnecessary to create a warranty, 
“but an affirmation merely of the value of the goods or a statement purporting to be merely 
the seller’s opinion or commendation of the goods does not create a warranty.”  

(2); Utah Code § 70A-2-313(2).  Statements in advertising and promotional 
materials may create an express warranty.  E.g., Johnson v. Bobcat Co., 

, 1143–44 (D. Minn. 2016); Boud v. SDNCO, Inc., 

, 1134–36 (Utah 
2002).  A seller’s “representations [] must be interpreted as an ordinary person would 
understand their meaning, with any doubts resolved in favor of the user.”  Hanson v. N. J & 

B Enters., Inc., No. A08-0413, 

, at *4 (Minn. Ct. App. Feb. 3, 2009) 
(quoting McCormack v. Hankscraft Co., 

 (Minn. 1967)); State ex rel. 
Div.  of  Consumer  Protection  v.  GAF  Corp.,  

  (Utah  1988)  (“An 
affirmation of fact, a promise, or a description of the goods must be judged objectively 
against the meaning that a reasonable person would have taken from the statement.”).7 


7    Plaintiffs’  state  and  federal  implied-warranty  claims  need  not  be  addressed 
separately.  Plaintiffs have limited their state-law implied-warranty claims to a mislabeling 
theory that mirrors their express-warranty claims.  See Third Am. Compl. ¶ 137; ECF No. 
43  at  21;  see  also  

(2)(f).    “[W]hen  an  ‘implied  warranty  of 
merchantability cause of action is based solely on whether the product in dispute conforms 
to the promises or affirmations of fact on the packaging of the product, the implied warranty 
of merchantability claim rises and falls with express warranty claims brought for the same 
     Plaintiffs allege facts plausibly showing each of the three essential elements of their 
state-law  breach-of-warranty  claims.   Plaintiffs  plausibly  allege  the  existence  of  a 
watranty—specifically,  that  Defendants  warranted  that  NordicTrack  treadmills  could 
achieve a level of continuous horsepower during residential use.  Indeed, the bulk of the 
Third  Amended  Complaint  is  directed  at  showing  this  element.   Plaintiffs  allege  that 
Defendants  represented  “online  and  in  numerous  market  outlets”  that  NordicTrack 
treadmills included motors with a particular continuous horsepower (or “CHP’”’) rating. 
Third Am.  Compl.  { 47-58.  For example,  in online  marketplaces  like Amazon.com, 
Defendants advertised that the 6.5  S model Barclay purchased had a “Durable 2.6 CHP 
Motor”: 

                    Proven  Performance 

                                       DURABLE 
                                     2.6 CHP MOTOR 
                    SPACIOUS. 
                    20°55" BELT 

                                                    10° - 

                                                LO" DIGITAL 
                                            INCLINE CONTROL 
                         FLEXSELECT 
                     ADJUSTABLE CUSHIONING 

product.’”  Hesse v.  Godiva Chocolatier, Inc., 

, 470 (S.D.N.Y. 2020) 
(citation omitted) (collecting cases).  A MMWA implied-warranty claim also depends on 
the breach of an implied warranty under state law so, by extension, Plaintiffs’ MMWA 
implied-warranty claim also hinges on their express warranty claims.  

(7) 
(“The term ‘implied warranty’ means an implied warranty arising under State law ..  ..”); 
see, e.g., Bollom v. Brunswick Corp., 

, 1224 (D. Minn. 2020). 
                                     14 

  | 54.  Defendants made similar representations about their treadmills on their “treadmill 
blog” and on the NordicTrack website, where they offered NordicTrack treadmills for sale: 

            4"           40"           BK 

                        SMART-Response 
                        Drive  System 
                        nape    inabeitdalenesks 
                        (HP)  4.0 CHP DURX™ MOTOR 
                         ED)  REDUCED VIBRATION 
                         Q)  SELF-COOLING 

 □□□ 48, 56.  Plaintiffs allege that Defendants included similar “CHP” representations on 
the treadmills themselves and in “in-store floor model displays across the country.”  Jd. 
{/57-58.   Plaintiffs  allege  facts  plausibly  showing  that  an  ordinary  person  would 
understand these representations to mean that a treadmill’s in-home continuous horsepower 
matched the “CHP” value Defendants advertised.  Plaintiffs allege that they understood the 
Defendants’ representations this way.  /d.  § 7-10,  17, 20, 23, 46.  And Plaintiffs allege 
that  several  retailers  and  industry  bloggers  shared  their  understanding  of continuous 
horsepower.  For example, Dick’s  Sporting Goods and a “Treadmill Reviews” website 
explained  that  “CHP  measures  how  much  power  the  motor  maintains  throughout  the 
workout” and “shows that the motor can maintain the power it is rated for without lagging 
or slowing down under strain.”  Jd.     40-41, 43.  A fitness blog described CHP as “the 

                                      15 

minimum horsepower delivered at all points during a workout,” id. ¶ 41, and a “Treadmill 
Ratings & Reviews” website described it as a “measure of sustained power during regular 
use,” id. ¶ 42.8  Plaintiffs also allege that Defendants advertised their treadmill motors’ 

CHP ratings as a key feature.  For instance, Defendants advertised that a treadmill “works 
as hard as you with up to an incredible 4.25 CHP DurXTM Commercial Plus motor, 
powering  your  calorie-torching  iFit  workout.”    Id.  ¶¶ 50–51.    Plaintiffs  allege  facts 
plausibly showing a breach of this warranty, id. ¶¶ 7, 9, 16, 18, 19, 21, 22, 24, 60, and that 
the breach caused them damages, id. ¶¶ 11–13, 17–18, 20–21, 23–24.        

    Defendants  dispute  the  plausibility  of  Plaintiffs’  alleged  understanding  of 
Defendants’ continuous-horsepower representations, but Defendants’ arguments are not 
persuasive.  Defendants acknowledge that their “numerical CHP representations” are 
“objective in nature, and thus may constitute warranties,” but Defendants argue that they 
never “affirm[ed] that the treadmills would ‘achieve’ the stated CHP, or any horsepower 

output, during household use”; they “simply affirmed that a [certain] motor would be 
incorporated” into their treadmills.  Defs.’ Mem. in Supp. at 14–15.  Defendants suggest 
that Plaintiffs “tacitly admit that, with sufficient electrical power, the motors do reach the 
stated horsepower.”  Id. at 15.                                           


8    Defendants argue that the existence of a warranty turns on “the actual language and 
images set forth [in the product descriptions],” and that third-party statements “cannot 
support Plaintiffs’ claims.”  Mem. in Supp. at 15–16 (quoting Boud, 

).  The 
rule that third-party statements cannot establish the basis of the bargain or constitute an 
actionable warranty does not mean that such statements are always irrelevant.  Here, 
Plaintiffs  rely  on  the  statements  for  a  different  and  proper  purpose:  to  show  the 
reasonableness  (and  therefore  the  plausibility)  of  their  understanding  of  Defendants’ 
continuous-horsepower representations.                                    
    Defendants’ arguments concerning the meaning of their continuous-horsepower 
representations mirror those rejected in an analogous case, Date v. Sony Electronics, Inc., 
No. 07-cv-15474, 

 (E.D. Mich. Sept. 16, 2010).  In Date, plaintiffs 

alleged that advertisements for a “1080p” television created an express warranty that a 
television could “accept 1080p signal natively through all of its inputs, not just via 
. . . antenna.”  Id. at *9.  In moving to dismiss, the defendants argued no such warranty was 
created because they never expressly represented that the televisions would accept 1080p 
signal via “all inputs” and because the plaintiffs possessed an “erroneous understanding” 

of the televisions’ input capabilities.  Id. at *9–10.  The court denied the motion, noting 
that  the  defendants’  arguments  ignored  the  plaintiffs’  “claim  that  the  phrase  1080p, 
standing alone, implie[d] the ability of the television to accept 1080p through all of its 
inputs,” and that the plaintiffs had supported this understanding with allegations from 
industry sources and the defendants’ own advertisements.  Id.; see also In re Shop-Vac 

Mktg. & Sales Pracs. Litig., 

, at *6–7 (denying motion to dismiss and 
rejecting defendants’ contention that “peak horsepower” is “a term of art that only refers 
to horsepower levels reached for a brief time in laboratory conditions, not during actual 
consumer use” so that “use of the term on the packaging [was] therefore true and standard 
in the industry”).  These cases are persuasive and help to confirm that Defendants’ 

interpretation of their continuous-horsepower representations (even if reasonable) does not 
establish the implausibility of Plaintiffs’ alleged understanding.        
    The same is true for the third-party evidence Defendants cite.  To show that 
Plaintiffs’ understanding is implausible, Defendants cite statements reflecting that third 
parties shared Defendants’ interpretation that “continuous horsepower” does not refer to a 
treadmill’s capabilities during home use.  Defendants cite a “2020 Treadmill Buying 
Guide” published online by “treadmillreviews.com”—one of several industry sources 

Plaintiffs cite in their complaint.  Defs.’ Reply Mem. at 6–7 [ECF No. 125]; see Third Am. 
Compl. ¶ 43 n.10.  According to Defendants, the author of that guide has—since Plaintiffs 
filed this lawsuit—inserted a disclaimer that “CHP motor ratings refer to the motor power 
achieved in a testing facility. You are not going to achieve this same amount of power 
when using the treadmill in your home due to the smaller wattage limitations of [a] 

residential home or apartment.”  Zhao Decl., Ex. G at 10 [ECF No. 126-5].  One can 
hypothesize various reasons why the author might have elected to add this disclaimer after 
the commencement of this case and others like it.  See Bechtel, 

; Walker 
v.  Nautilus,  Inc.,  No.  2:20-cv-3414,  

  (S.D.  Ohio  Dec.  13,  2020).  
Regardless, this evidence does not establish that an ordinary person could not plausibly 

have  shared  Plaintiffs’  understanding  of  Defendants’  continuous-horsepower 
representations at the time Plaintiffs relied on them.                    
    Defendants dispute whether Plaintiffs have plausibly alleged causation, arguing that 
“Plaintiffs never allege that they ever viewed any of the specific descriptions in their 
complaint.”  Defs.’ Mem. in Supp. at 14.  This is not correct.  Barclay, Nordick, and Ovsak 

each alleges to have viewed NordicTrack’s website and to have relied on statements that 
the treadmill each of them purchased was “capable of providing” or “producing” a specific 
level of “CHP.”  Third Am. Compl. ¶¶ 17, 20, 23.  Defendants cite no authority requiring 
more than that.                                                           
                               C                                         
    Defendants also argue that Plaintiffs’ state-law warranty claims should be dismissed 
because  Plaintiffs  do  not  allege  facts  plausibly  showing  they  gave  pre-suit  notice.  

Defendants are correct that pre-suit notice is a prerequisite to suit.  To sue for breach-of-
warranty, a buyer “must within a reasonable time after [they] discover[] or should have 
discovered any breach notify the seller of [the] breach or be barred from any remedy.”  

(3)(a); Utah Code § 70A-2-607(3)(a).  Notice must be pleaded.  
Dolan v. Bos. Sci. Corp., No. 20-cv-1827 (NEB/LIB), 

, at *3 (D. Minn. 

Feb. 23, 2021) (collecting cases); Johnson v. Blendtec, Inc., 

, 1290–91 
(D.  Utah  2020)  (analyzing  complaint  and  document  embraced  by  the  pleadings  to 
determine adequacy of pre-suit notice).  The “reasonableness or the unreasonableness of 
the delay must be determined” by measuring from “[t]he date when the buyer becomes 
aware or should have become aware of the claimed defect.”  Truesdale v. Friedman, 

  (Minn.  1965);  see  also  Blendtec,  Inc.,  500  F.  Supp.  3d  at  1290.  
Generally, “[w]hat constitutes a ‘reasonable time’ is a jury question and depends on the 
facts and circumstances of the case.”  Willmar Cookie Co. v. Pippin Pecan Co., 

  (Minn.  Ct.  App.  1984);  Blendtec,  Inc.,  500  F.  Supp.  3d  at  1290  (quoting 
Christopher v. Larson Ford Sales, Inc., 

 (Utah 1976)).  Courts apply 

the pre-suit notice requirement more leniently in consumer actions, reasoning that strict 
enforcement would defeat the Uniform Commercial Code’s purpose of “allowing good 
faith consumers to pursue relief in courts.”  George v. Uponor Corp., 

 (D. Minn. 2013) (citing Church of the Nativity of Our Lord v. WatPro, Inc., 

 (Minn. 1992), overruled on other grounds, Ly v. Nystrom, 

 
(Minn. 2000)); see Blendtec, Inc., 500 F. Supp. 3d at 1290.  “The bar for sufficiency is low, 
but notice is nevertheless important because it ‘informs the seller that the transaction is 

claimed to involve a breach, and thus opens the way for normal settlement through 
negotiation.’”  Drobnak v. Andersen Corp., 

 (8th Cir. 2009) (citation 
omitted).  A delay in notice can become unreasonable as a matter of law when a buyer has 
known, or should have known, of the alleged breach.  Truesdale, 

; 
Blendtec, Inc., 500 F. Supp. 3d at 1290.                                  

    Here, Plaintiffs have not alleged facts plausibly showing that they gave Defendants 
timely pre-suit notice.  Plaintiffs allege when they purchased their treadmills.  Barclay 
purchased her treadmill in June 2019.  Third Am. Compl. ¶ 16.  Ovsak purchased his 
treadmill in February 2016.  Id. ¶ 19.  And Nordick purchased hers in January 2019.  Id. 
¶ 22.  Plaintiffs also allege when they gave written notice to Defendants.  Barclay mailed 

written notice on October 10, 2019.  Id. ¶¶ 84–85.  And Ovsak and Nordick did so on 
February 3, 2020.  Id. ¶ 86.  Plaintiffs don’t, however, allege when each of them discovered 
the alleged breach.  Plaintiffs allege only that they gave notice “within a reasonable time” 
after they discovered or reasonably should have discovered the continuous horsepower 
discrepancy, but they do not plead a discovery date.  Id. ¶¶ 84, 86.      

    Defendants don’t dispute specific dates or challenge the content of Plaintiffs’ pre-
suit notices.  They contend that, by not alleging when they discovered the alleged breach, 
Plaintiffs have not alleged sufficient facts to show their notice was timely.  Defs.’ Reply 
Mem. at 9 n.8.  This is persuasive.  As noted, in Minnesota and Utah, the timeliness of pre-
suit notice is determined by the gap between “[t]he date when the buyer becomes aware or 
should have become aware of the claimed defect” and the provision of notice.  Truesdale, 

; see Blendtec, Inc., 500 F. Supp. 3d at 1290.  That determination can’t 

be made without knowing when the buyer became aware of the defect.  And alleging, as 
Plaintiffs do here, that notice was given “within a reasonable time” seems the same thing 
as pleading an unhelpful legal conclusion.  See Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 

 (2009).  Though Plaintiffs’ failure to allege a discovery date means they have 
not alleged pre-suit notice to support their state-law breach of warranty claims, this sort of 

technical pleading defect ordinarily may be “easily cured” through amendment.  Nathan v. 
Whirlpool Corp., 

, 756 (S.D. Ohio 2020); accord Tyman v. Pfizer, Inc., 
16-CV-06941 (LTS) (BCM), 

, at *22–23 (S.D.N.Y. Dec. 27, 2017), 
report and recommendation adopted, 

 (S.D.N.Y. Jan. 18, 2018).  The 
state-law warranty claims in Counts 1, 3, and 4 will therefore be dismissed without 

prejudice,  and  Plaintiffs  will  be  granted  leave  to  file  a  fourth  amended  complaint 
addressing this deficiency.                                               
                               V                                         
                               A                                         
    Defendants argue that a Utah choice-of-law clause in Terms of Use to which Barclay 

and Nordick assented prevents them from asserting certain Minnesota statutory claims—
specifically, claims under the MDTPA (Count 6), the Consumer Fraud Act, Minn. Stat. §§ 
325F.68–.70 (Count 7), the False Statement in Advertisement Act, Minn. Stat. § 325F.67 
(Count 8), and the Unlawful Trade Practices Act, Minn. Stat. § 325D.13 (Count 9).  Defs.’ 
Mem. in Supp. at 23.9  The dismissal of Plaintiffs’ MDTPA claim in Part I, above, leaves 
Counts 7 through 9 as the targets of this aspect of Defendants’ motion.  The Parties seem 
to agree that this choice-of-law question matters.  Defendants have identified material 

conflicts between Utah and Minnesota consumer-protection statutes, id. at 23–24, and 
Plaintiffs do not dispute that these conflicts exist, see Pls.’ Mem. in Opp’n at 18–20. 
    Not  long  after  each  of  them  purchased  a  NordicTrack  treadmill,  Barclay  and 
Nordick signed up as members of ICON’s iFit service.  See Barclay I, 

, 
at *1 (describing treadmill purchases), *3 (describing iFit enrollment).  When they signed 

up for the iFit service, Barclay and Nordick agreed to the iFit “Terms of Use.”  Id. at *3.  
Among other provisions, the Terms of Use included a Utah choice-of-law clause: 
         GOVERNING LAW.                                                  

         The ICON Sites (excluding any linked sites) and ICON            
         Services are controlled by us from our offices within the       
         State of Utah, United States of America.  The ICON Sites        
         and  ICON  Services  can  be  accessed  from  all  fifty  (50)  
         states, as well as from other countries around the world.  As   
         each of these places has laws that may differ from those of     
         Utah, by accessing the ICON Sites or ICON Services, both        
         of us agree that the statutes and laws of the State of Utah,    
         without regard to the conflicts of laws principles thereof,     
         will apply to all matters relating to the use of the ICON Sites 
         and the purchase of ICON Services available through the         
         ICON Sites.                                                     


9    Defendants do not seek dismissal of Ovsak’s Minnesota claims on this basis.  
Defendants acknowledge that Ovsak assented to an earlier version of the Terms of Use 
than did Barclay and Nordick, and that the choice-of-law clause in that earlier version was 
narrower.  See Defs.’ Mem. in Supp. at 26 n.12.                           
Am. Brammer Decl. Ex. 7 [ECF No. 45-7 at 10].  The Terms of Use defined “ICON” 
broadly  to  include  “its[]  affiliates,  partners,  licensors,  subsidiaries,  and/or  related 
companies.”  Id. at 2.  From this broad definition, Barclay I concluded that “the Terms of 

Use governed, not merely Barclay and Nordick’s relationship with ICON resulting from 
their iFit registration, but also NordicTrack.”  

, at *10 n.6.      
    Framed in the choice-of-law clause’s terms, the fighting issue is whether Barclay 
and Nordick’s claims are “matters relating to the use of the ICON Sites.”  Defendants argue 
they are because Barclay and Nordick allege in support of the at-issue claims that they read 

and relied on continuous horsepower representations on the NordicTrack website.  Defs.’ 
Mem. in Supp. at 25–26.  In taking the opposite position, Barclay and Nordick rely 
exclusively on arbitrators’ orders dismissing their arbitration claims as not arbitrable.  Pls.’ 
Mem. in Opp’n at 18–20.  Barclay and Nordick do not argue that the choice-of-law clause 
is invalid.  Nor do they dispute that “ICON” as used in the choice-of-law clause includes 

NordicTrack.                                                              
    The Parties don’t identify what law applies to interpret and apply the choice-of-law 
clause here, but the answer appears to be Minnesota law.  See Am. Online, Inc. v. Nat’l 
Health Care Discount, Inc., 

 (N.D. Iowa 2000) (“A federal 
court exercising supplemental jurisdiction over state-law claims in a federal-question 

lawsuit must follow the choice-of-law rules of the forum state.” (collecting cases)); see 
also Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 

, 1164 (9th Cir. 1996) 
(“The first step in interpreting the [choice-of-law] clause is to apply the correct choice-of-
law rules.  In a federal question action where the federal court is exercising supplemental 
jurisdiction over state claims, the federal court applies the choice-of-law rules of the forum 
state—in this case, California.”); CPI Card Grp., Inc. v. Dwyer, 

 
(D. Minn. 2018).10                                                        

    Minnesota courts apply ordinary principles of contract interpretation to choice-of-
law clauses.  Katch, LLC v. Sweetser, 

 (D. Minn. 2015); see White 
v. Catheter Robotics, Inc., Nos. A13-1401, A13-2159, 

, at *5–6 (Minn. 
Ct. App. June 30, 2014); Perry v. Zurich N. Am., Inc., No. A10-608, 

, at 
*3 (Minn. Ct. App. Jan. 11, 2011).  “Whether a choice-of-law clause governs a non-

contractual claim is a context-specific question that depends on both the language of the 
clause and the nature of the claim asserted.”  Syngenta Seeds, LLC v. Warner, No. 
20-cv-1428 (ECT/BRT), 

, at *8 (D. Minn. Feb. 22, 2021).     
    Here, in view of the Parties’ arguments, the better answer is that the Utah choice-
of-law clause applies and precludes Barclay and Nordick from asserting the challenged 

Minnesota statutory claims.  The choice-of-law clause is expansive.  Relevant here, it says 
that Utah law “will apply to all matters relating to the use of the ICON Sites.”  Am. 
Brammer Decl. Ex. 7 at 10.  The ordinary meaning of the phrase “relating to” is broad.  
Morales v. Trans World Airlines, Inc., 

, (1992) (“The ordinary meaning of 
these words is a broad one—‘to stand in some relation; to have bearing or concern; to 


10   In Northwest Airlines, Inc. v. Astraea Aviation Services, Inc., a diversity case, the 
Eighth Circuit seems to have applied Minnesota law to determine whether a contractual 
Minnesota choice-of-law clause required tort claims to be governed by Minnesota law.  

 (8th Cir. 1997).  But it is not clear whether the court applied Minnesota 
law because Minnesota was the forum state or because the clause chose Minnesota law.  
See 

                                                                   
pertain; refer; to bring into association with or connection with[.]’” (quoting Black’s Law 
Dictionary 1158 (5th ed. 1979))).  And there is no question that Barclay and Nordick’s 
misrepresentation-based claims don’t just “stand in some relation to” their use of the ICON 

sites—they depend on their “use of” the NordicTrack website.  That is where Barclay and 
Nordick allege to have reviewed and relied on NordicTrack’s representations regarding its 
treadmills’  continuous  horsepower  ratings.    Third  Am.  Compl.  ¶  17  (Barclay),  ¶ 23 
(Nordick).  And these allegations are central to their claims in Counts 7 through 9.  Id. 
¶¶ 172, 179, 189–90.                                                      

    Barclay and Nordick’s exclusive reliance on the arbitrators’ orders of dismissal is 
not persuasive.11  No authority is cited to support the proposition that the arbitrators’ orders 
are binding here.  Neither arbitrator considered the choice-of-law clause.  See Notice of 
Arb. Order, Ex. A (Barclay) [ECF No. 109-1] (“Arb. Order”); Notice of Arb. Order, Ex. A 
(Nordick) [ECF No. 115 at 4].  Their task was to determine arbitrability. 

    The arbitrators’ dismissals were based on three independent conclusions concerning 
arbitrability, none of which controls the choice-of-law question here.  The first two of these 
are clearly distinguishable from the choice-of-law question.  To start, the arbitrators 
determined that Barclay and Nordick’s claims did not “aris[e] from the use of . . . the ICON 
Sites.”  Arb. Order at 5–9.  In reaching this conclusion, the arbitrator observed: 

         The operative words here are not merely “arising from” but      
         “dispute arising from the use”—requiring a clear, direct, and   
         active connection between the “dispute” and “use.”  Moreover,   
         the  similar  words  “arising  out  of”  have  been  held  to  be 

11   Though two arbitrators issued dismissal orders, the arbitrator who issued the second 
dismissal order “adopt[ed] and incorporate[ed] by reference the reasoning of” the first and 
issued no separate, explanatory memorandum.  Notice of Arb. Order, Ex. A (Nordick).    
         “relatively narrow as arbitration clauses go . . . and ‘understood 
         to mean originating from, having its origin in, growing out of  
         or flowing from,’” United States ex rel. Welch v. My Left Foot  
         Children’s Therapy, LLC, 

 (9th Cir. 2017).    

Id. at 8.  The “‘relatively narrow’” character of the arbitration clause in this respect 
contrasts with the breadth of the choice-of-law clause.  Second, the arbitrators noted that 
broader language defining the arbitration clause’s reach “logically refers to the Terms of 
Use, not the ICON sites.”  Id. at 9.  Here, by contrast, there is no question the choice-of-
law clause’s broad phrase “relating to” refers “to the use of the ICON Sites.”  Am. Brammer 
Decl. Ex. 7 at 10.                                                        
    The arbitrators’ final ground for determining that Barclay and Nordick’s claims 
were not arbitrable was that the arbitration clause did not apply retroactively.  Arb. Order 
at 9–10.  If the arbitration clause isn’t retroactive, the argument goes, neither is the Utah 
choice-of-law clause, leaving Barclay and Nordick free to assert their Minnesota statutory 
claims.    The  retroactivity  question  is  somewhat  murky.    Apart  from  what’s  in  the 
arbitrators’ order, nothing in the Parties’ briefing or the record addresses this issue, and a 
search of Minnesota law has identified no cases or rules that might control or directly 

answer the question.  Regardless, the better answer is that the choice-of-law clause applies 
retroactively.  The contract’s text supports this conclusion more than not.  The Terms of 
Use include a clause addressing modifications that reads, in part: “no revisions to these 
Terms of Use will apply to any dispute between you and ICON that arose prior to the 
effective date of those revisions.”  Am. Brammer Decl. Ex. 7 at 2.  But no clause similarly 

limits the reach of the then-in-effect (and applicable here) Terms of Use.  Also, as 
discussed,  the  choice-of-law  clause  specifically  is  quite  broad,  reaching  “all  matters 
relating to the use of the ICON sites” without any temporal limitation.  Id. at 10.  Cases 
provide  persuasive  support  for  the  conclusion  that  the  choice-of-law  clause  applies 
retroactively.  In TradeComet.com LLC v. Google, Inc., for example, the Second Circuit 

determined that a forum-selection clause applied retroactively, observing along the way 
that “courts have found claims arising from or related to conduct occurring before the 
effective date of an arbitration clause to be within the scope of a clause that ‘is not limited 
to claims arising under the agreement itself.’”  435 Fed. App’x 31, 34 (2d Cir. 2011) 
(quoting In re Verisign, Inc. Derivative Litig., 

 (N.D. Cal. 

2007)).  Here, as in TradeComet.com LLC, the choice-of-law clause is not limited to claims 
arising under the Terms of Use.  See also Warwick v. Schneider Nat’l, Inc., No. 20 C 1995, 

, at *2–4 (N.D. Ill. Oct. 5, 2020) (applying forum-selection clause 
retroactively because, among other reasons, clause applied to “any dispute” not subject to 
arbitration  provision  and  did  “not  limit  coverage  temporally,  to  the  agreement,  or 

otherwise”).                                                              
    For all these reasons, then, the Utah choice-of-law clause precludes Barclay and 
Nordick from asserting the challenged Minnesota statutory claims.  It appears that the usual 
next step in this situation is to dismiss those claims.  See, e.g., Nw. Airlines, Inc., 

 n.4; Buche v. Liventa Bioscience, Inc., 

 (D. Minn. 2015).  

Citing these authorities, Defendants argue that dismissal is appropriate.  Defs.’ Mem. in 
Supp. at 27.  Plaintiffs do not oppose this argument or suggest an alternative course in their 
brief.  See Pls.’ Mem. in Opp’n at 18–20.  Therefore, the challenged Minnesota statutory 
claims in Counts 7 through 9 of the Third Amended Complaint will be dismissed as to 
Barclay and Nordick on this basis.                                        
                               B                                         

    Defendants argue that these same Minnesota statutory claims must be dismissed on 
their merits, now with respect to just Ovsak.  Defendants argue that Ovsak has not alleged 
a false or misleading representation, reliance, or causation, essential elements of each of 
these claims.  Defs.’ Mem. in Supp. at 19–22; Defs.’ Reply Mem. at 5–8.   
    In addition to Rule 12(b)(6)’s familiar standards, Defendants’ challenge to the 

factual sufficiency of these claims implicates the particularity-in-pleading requirement of 
Rule 9(b).  See Nunez v. Best Buy Co., 

 (D. Minn. 2016).  “To satisfy 
the particularity requirement of Rule 9(b), the complaint must plead such facts as the time, 
place, and content of the defendant’s false representations, as well as the details of the 
defendant’s fraudulent acts, including when the acts occurred, who engaged in them, and 

what was obtained as a result.”  U.S. ex rel. Joshi v. St. Luke’s Hosp., Inc., 

 (8th Cir. 2006).  “The claim must identify who, what, where, when, and how.”  U.S. 
ex rel. Costner v. United States, 

, 888 (8th Cir. 2003).  While Rule 9(b) 
requires particularity in pleading, “a complaint need not be filled with precise detail.”  
Moua v. Jani-King of Minn., Inc., 

 (D. Minn. 2009).  Rather, 

“Rule 9(b) is to be read in the context of the general principles of the Federal Rules, the 
purpose of which is to simplify pleading.  Thus, the particularity required by Rule 9(b) is 
intended to enable the defendant to respond specifically and quickly to the potentially 
damaging allegations.”  Costner, 317 F.3d at 888.  “The level of particularity required 
depends on the nature of a case,” E-Shops Corp. v. U.S. Bank Nat’l Ass’n, 

 (8th Cir. 2012), and to determine whether a party has satisfied Rule 9(b), courts look 
to “the complexity or simplicity of the transaction or occurrence, the relationship of the 

parties and the determination of how much circumstantial detail is necessary to give notice 
to the adverse party and enable him to prepare a responsive pleading,” Payne v. United 
States, 

 (8th Cir. 1957) (citation omitted).             
    Ovsak alleges facts plausibly showing a false or misleading representation, reliance 
(assuming it is required),12 and causation, and he has done so with the particularity required 

by Rule 9(b).  The Third Amended Complaint’s allegations showing the false or misleading 
character  of  Defendants’  continuous-horsepower  representations  are  extensive  and 
particular.   See Third Am. Compl. ¶¶ 8–11, 20, 31–58.  Defendants’ argument that 
Plaintiffs have not alleged a false or misleading statement, Defs.’ Mem. in Supp. at 21, 
mirrors their argument that Plaintiffs failed to allege the breach of an objective warranty, 

and it is not persuasive for the same reasons discussed in that context.  Ovsak alleges 
specifically that he relied on just such a false or misleading representation in purchasing 
his NordicTrack treadmill.  Third Am. Compl. ¶ 20.  Defendants’ contention that Plaintiffs 

12   Ovsak’s Minnesota statutory consumer-protection claims do not require the level of 
reliance required for claims of common law fraud under Minnesota law—“only . . . that 
the defendant engaged in conduct prohibited by the statutes and that the plaintiff was 
damaged thereby.”  Grp. Health Plan, Inc. v. Philip Morris Inc., 

, 12–13 
(Minn. 2001) (discussing claims under Minn. Stat. § 325F.69, subd. 1, § 325F.67, and 
§ 325D.13); but see Weigand v. Walser Auto. Grps., Inc., 

, 812–13 (Minn. 
2004) (explaining that, under Group Health, “reliance is [still] a component of the causal 
nexus requirement for a private consumer fraud class action under 

, subd. 
3a,” but that the “justifiable reliance standard of common law fraud” is “not necessarily 
require[d]”).                                                             
“fail to plead that they actually viewed any of the allegedly misleading representations that 
they cite” is not persuasive.  Defs.’ Mem. in Supp. at 20–21.  Again, as discussed earlier, 
Plaintiffs have alleged many particular examples of misrepresentations Defendants made 

online,  in  store  displays,  and on  the  treadmills  themselves.    See  Third  Am.  Compl. 
¶¶ 47–58.  Plaintiffs do not allege they viewed and relied on all of these examples.  No 
authority is cited suggesting they must.13  Paired with Ovsak’s allegations regarding the 
particular  misrepresentation  on  which  he  relied,  

  ¶¶  19–20,  these  allegations  are 
sufficient.  Ovsak also alleges causation.  In particular, Ovsak alleges that Defendants’ 

continuous-horsepower representations were a “material factor” in his decision to purchase 
the treadmill and that he “would not have purchased his NordicTrack Commercial 2950 
treadmill or would have paid considerably less if he had known the true horsepower 
capabilities.”  

  Ovsak alleges that he used the treadmill in his residence (until it “stopped 
working” for reasons unconnected to Ovsak’s claims here) and that he “has not received 

the CHP that Defendants represented.”  Id. ¶ 21.                          
                               C                                         
    Defendants argue that Ovsak’s claims under the Minnesota Consumer Fraud Act, 
False Statement in Advertising Act, and Unlawful Trade Practices Act must be dismissed 
because he has not alleged a public benefit.  A private party asserting claims under these 


13   Defendants rely on Knotts v. Nissan North America, Inc., 

 (D. 
Minn. 2018), but that case is distinguishable.  There, a plaintiff cited a statement from the 
defendant’s website, but did not identify “whether he viewed it, when he viewed it, and 
whether he viewed it in Minnesota.”  

.  The plaintiff did “not allege that he 
viewed [an] advertisement, much less whether he viewed it prior to purchasing his car, and 
whether a causal link existed between the two.”  

.  We don’t have anything like 
that here.                                                                
statutes may do so only through Minnesota’s Private Attorney General Statute, 

, subds. 1, 3a.  See Johnson v. Bobcat Co., 

, 1141–42 (D. Minn. 
2016).  Section 8.31 is available “only to those claimants who demonstrate that their cause 

of action benefits the public.”  Ly v. Nystrom, 

 (Minn. 2000).  “[A] 
single one-on-one transaction in which the fraudulent misrepresentation, while evincing 
reprehensible conduct, was made only to [the plaintiff]” generally “does not advance state 
interests and enforcement has no public benefit.”  Id.; see Davis v. U.S. Bancorp, 

, 767–68 (8th Cir. 2004).  On the other hand, a public benefit can be shown when a 

defendant has made false or misleading statements to “the public at large.”  Collins v. Minn. 
Sch. of Bus., Inc., 

 (Minn. 2003).  In Collins, the Minnesota Supreme 
Court reviewed a state district court’s denial of attorneys’ fees to plaintiffs who had settled 
their claims against a private post-secondary school for “false, misleading, and confusing 
statements about its sports medicine program.”  

.  The district court denied 

attorneys’ fees on the plaintiffs’ false advertising and consumer fraud claims for lack of a 
public benefit, reasoning that “only a relatively small group of persons were injured.”  

.  The Minnesota Supreme Court reversed, holding that the district court had 
“misapplied” its precedent by “focus[ing] on the number of ‘persons who were injured’” 
and “ignoring the fact that [the defendant] misrepresented the nature of its program to the 

public at large.”  

  The Court then described different ways the defendant had “presented 
its program to the public at large,” appearing to rest its public-benefit finding on this basis. 
    Collins, binding here, answers whether Ovsak alleges facts plausibly showing a 
public benefit.  He does.  The Third Amended Complaint includes many allegations that 
Defendants directed false or misleading advertisements to the public at large.  Third Am. 
Compl. ¶ 3 (alleging that Defendants manufacture, market, and sell treadmills “throughout 
the country”); id. ¶¶ 4, 47–54 (alleging that Defendants have sold and falsely advertised 

NordicTrack treadmills online through their own websites, through major retailers, and in 
prominent online marketplaces, like Amazon.com); id. ¶¶ 6, 58 (alleging that Defendants 
made false misrepresentations through “in-store floor model displays across the country” 
at retailers like Sears, Best Buy, and “most” of 720 Dick’s Sporting Goods locations, which 
span “47 states”).  Defendants argue that Ovsak has not alleged a public benefit because 

he may only recover “monetary damages for past harm” and not prospective relief.  Defs.’ 
Mem. in Supp. at 28–30.  Allegations “that ICON’s advertisements are disseminated to the 
general public,” Defendants say, are “insufficient to establish a public benefit.”  Id. at 30.  
Collins does not support Defendants’ argument.  Its focus was on whether the defendant 
“misrepresented the nature of its program to the public at large.”  

.  The 

Minnesota Supreme Court did not focus on whether the plaintiff sought only damages or 
injunctive relief also.  That question seems not to have factored into the decision. 
                              VI                                         
    The final issue is what to do about Count 10 of the Third Amended Complaint, titled 
“Negligent  Misrepresentation.”    It  helps  to  explain  how  this  problem  surfaced.  

Defendants reasonably understood Plaintiffs to assert a claim in Count 10 for negligent 
misrepresentation.  That is the Count’s title, and it includes allegations that Defendants 
acted “negligently.”  Third Am. Compl. ¶ 202.  On that understanding, Defendants argued 
in their opening brief that negligent misrepresentation claims are barred by Minnesota’s 
economic loss doctrine, codified at 

, subd. 4.  Defs.’ Mem. in Supp. 
at 31–32; see Valspar Refinish, Inc. v. Gaylord’s, Inc., 

 (Minn. 2009) 
(“We conclude that under 

, subd. 4, a buyer of goods is barred from 

bringing a common-law negligent misrepresentation claim against the seller that relates to 
the goods sold.”).  In their response brief, Plaintiffs conceded that point but argued that 
what they really assert in Count 10 is a fraud claim.  Pls.’ Mem. in Opp’n at 27–29.  A 
fraud claim would solve the economic loss problem because Minnesota’s economic loss 
statute  excepts  common  law  misrepresentation  claims  relating  to  goods  sold  if  “the 

misrepresentation was made intentionally or recklessly.”  

, subd. 4.  
Plaintiffs seek leave to amend Count 10 to “remove references to negligence.”  Pls.’ Mem. 
in Opp’n at 29 n.13.  Defendants oppose this request as “procedurally and substantively 
improper” and contend that Plaintiffs “do not identify any facts that could support an 
intentional (or even reckless) misrepresentation claim.”  Defs.’ Reply Mem. at 15–16. 

    The better answer is to grant Plaintiffs leave to amend in this respect.  Federal Rule 
of Civil Procedure 8(a)(2) requires that pleadings contain “a short and plain statement of 
the claim showing that the pleader is entitled to relief.”  Notice pleading serves “to give 
the opposing party fair notice of the nature and basis or grounds for a claim, and a general 
indication of the type of litigation involved.”  N. States Power Co. v. Fed. Transit Admin., 

, 1056–57 (8th Cir. 2004) (citation omitted).  “[T]he pleading requirements 
under the Federal Rules are relatively permissive, [although] they do not entitle parties to 
manufacture claims, which were not pled, late into the litigation for the purpose of avoiding 
summary judgment.”  Id. at 1057.                                          
    The Third Amended Complaint includes allegations plausibly showing the elements 
of a fraud claim under Minnesota law.  Plaintiffs allege that Defendants provided false and 
misleading information and “knew or should have known that the[] CHP representations 

were false . . . or made them without knowledge of their truth or falsity.”  Third Am. 
Compl. ¶¶ 200–01.  Plaintiffs also allege to have “reasonably and justifiably relied” on the 
misrepresentations, which they say “were intended to induce and actually induced” them 
to “purchase or pay a premium price” for their treadmills.  Id. ¶ 203.14  
    As pleaded, however, Count 10 is internally inconsistent.  Though Plaintiffs include 

allegations tracking the elements of a fraud claim under Minnesota law, Valspar Refinish, 
Inc., 

, they also allege “Defendants negligently misrepresented and/or, 
at  a  minimum,  negligently  omitted  material  facts  concerning  the  Treadmill  power 
representations,”  Third  Am.  Compl.  ¶  202,  leaving  the  impression  that  the  claim  is 
negligence-based.  Granting leave to amend in this respect will not prejudice Defendants.  

Plaintiffs have not waited to assert a new legal theory until “the eve of summary judgment,” 
N.  States  Power  Co.,  358  F.3d  at  1057,  or  after  the  close  of  discovery,  Howard  v. 
Weidemann, No. 20-cv-1004 (ECT/LIB), 

, at *6–7 (D. Minn. Dec. 22, 
2021).                                                                    



14   Defendants point out that it is somewhat unclear whether Plaintiffs intend to assert 
a fraudulent omission claim but argue that, if they do, that claim should be dismissed.  
Defs.’ Mem. in Supp. at 22 n.10.  Plaintiffs have not alleged “special circumstances that 
trigger a duty to disclose” and are therefore not understood to assert a claim for fraudulent 
omission.  Graphic Commc’ns Loc. 1B Health & Welfare Fund A v. CVS Caremark Corp., 

 (Minn. 2014).                                         

    Therefore, based on all the files, records, and proceedings in the above-captioned 
matter, IT IS ORDERED THAT:                                               

    1.   Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint [ECF 
No. 116] is GRANTED IN PART and DENIED IN PART as follows:                
         a.  Plaintiffs’ claims under the Minnesota Deceptive Trade Practices Act 
             (Count 6) are DISMISSED without prejudice for lack of subject-
             matter jurisdiction.                                        

         b.  Plaintiffs’ claims for breach of written warranty under the Magnuson-
             Moss Warranty Act (Count 2) are DISMISSED with prejudice and 
             on the merits.                                              
         c.  Plaintiffs’ remaining breach-of-warranty claims (Counts 1, 3, 4, and 5) 
             are DISMISSED without prejudice.  Plaintiffs are granted leave to 

             amend their Third Amended Complaint to address their failure to 
             allege facts plausibly showing adequate pre-suit notice.  Any amended 
             complaint shall be filed on or before March 11, 2022.  If no amended 
             complaint is filed by that deadline addressing this issue, then Counts 
             1, 3, 4, and 5 will be deemed dismissed with prejudice and on the 

             merits.                                                     
         d.  Plaintiffs  Teeda  Barclay  and  Nicole  Nordick’s  claims  under  the 
             Minnesota  Consumer  Fraud  Act  (Count  7),  the  Minnesota  False 
             Statement in Advertising Act (Count 8), and the Minnesota Unlawful 
             Trade Practices Act (Count 9) are DISMISSED with prejudice and 
             on the merits.                                              
         e.  Defendants’ motion is in all other respects DENIED.         

         f.  Plaintiffs are granted leave to amend their Third Amended Complaint 
             to clarify that Count 10 asserts a fraud claim.  Any amended complaint 
             addressing this issue shall be filed on or before March 11, 2022. 
    2.   The Clerk of Court is directed to amend the case caption by changing the 
name of Defendant Icon Health & Fitness, Inc. to the following: iFit Health & Fitness 

Inc., f/k/a Icon Health & Fitness, Inc.                                   

Dated: February 17, 2022           s/ Eric C. Tostrud                     
                                  Eric C. Tostrud                        
                                  United States District Court