O 1

2 3 4 5 6 7 United States District Court 8 9 Central District of California 10 Case № 2:20-cv-05408-ODW (RAOx) 11 MERKAMERICA INC.,

12 Plaintiff,

ORDER DENYING DEFENDANT’S

13 v. MOTION TO DISMISS [11]

14 DELL MARKETING LP et al.,

15 Defendants.

16 17 I. INTRODUCTION 18 This matter comes before the Court on Defendant Dell Marketing LP’s (“Dell”) 19 Motion to Dismiss Plaintiff MerkAmerica Inc.’s (“MerkAmerica”) Complaint under 20 Federal Rule of Civil Procedure 12(b)(6) (“Motion”). (Mot. to Dismiss (“Mot.”), ECF 21 No. 11.) For the reasons that follow, the Court DENIES Dell’s Motion.1 22 II. BACKGROUND 23 In 2013, MerkAmerica entered into an “Authorized Reseller Agreement” 24 (“Agreement”) with Dell that authorized MerkAmerica to purchase and resell Dell’s 25 refurbished products. (Notice of Removal (“NOR”) Ex. A (“Compl.”) ¶ 8, ECF 26 No. 1-1.) In mid-2016, MerkAmerica and Dell entered into an “output contract” that 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 allowed MerkAmerica to pick and choose products for resale from Dell’s available 2 inventory for a ninety-day period at fixed prices. (Compl. ¶¶ 17–18.) However, later 3 in 2016, Dell began using a new selling model that was substantially less profitable 4 for MerkAmerica because it required resellers to purchase inventory bundles which 5 included some less profitable products. (Id. ¶¶ 17, 22.) 6 MerkAmerica claims it repeatedly asked Dell “for ways to cut costs and 7 increase discounts for purchasing [Dell’s] products.” (Id. ¶ 28.) In April 2017, Dell 8 informed MerkAmerica about its gift card program (“Program”). (Id. ¶ 29.) 9 Specifically, Dell told MerkAmerica it could purchase gift cards at a volume 10 discount—e.g., a 10% discount for more than $1,000,000 in gift cards—from a third- 11 party vendor, RK Incentives, which could then be used to purchase Dell’s refurbished 12 products. (Id. ¶¶ 29–30.) 13 However, on August 18, 2017, before MerkAmerica could utilize the Program, 14 Dell sent MerkAmerica an addendum to the Agreement (“Addendum”) prohibiting it 15 from using gift cards to purchase refurbished products. (Id. ¶ 32–33.) Soon 16 thereafter, MerkAmerica learned that another reseller, Avallax LLC (“Avallax”), had 17 been utilizing the Program since at least April 2016. (Id. ¶ 36.) Furthermore, 18 MerkAmerica alleges that Dell had “secretly told” Avallax’s owner about the 19 Program. (Id. ¶ 37.) MerkAmerica claims Avallax captured a large share of Dell’s 20 consumer market because it was able to use the gift cards to pay higher prices, as 21 compared to other resellers who did not know about the Program. (Id. ¶ 38.) 22 Moreover, MerkAmerica alleges that Avallax was permitted to use Dell gift cards 23 until October 30, 2017, two months after Dell had sent the Addendum to 24 MerkAmerica. (Id. ¶ 42.) Ultimately, MerkAmerica and other resellers were driven 25 out of business. (Id. ¶ 40.) 26 Based on the above, MerkAmerica asserts two causes of action against Dell: 27 (1) violation of California Business & Professions Code section 17045 (“UPA”); and 28 1 (2) violation of California Business & Professions Code section 17200 (“UCL”). 2 (Compl. ¶¶ 43–55.) 3 III. LEGAL STANDARD 4 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal 5 theory or the absence of sufficient facts alleged under a cognizable legal theory.” 6 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). “To survive a 7 motion to dismiss . . . under Rule 12(b)(6), a complaint generally must satisfy only the 8 minimal notice pleading requirements of Rule 8(a)(2)”—a short and plain statement of 9 the claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003); see also Fed. R. Civ. 10 P. 8(a)(2). The “[f]actual allegations must be enough to raise a right to relief above 11 the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The 12 “complaint must contain sufficient factual matter, accepted as true, to state a claim to 13 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 14 (internal quotation marks omitted). “A pleading that offers ‘labels and conclusions’ or 15 ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (citing 16 Twombly, 550 U.S. at 555). 17 Whether a complaint satisfies the plausibility standard is “a context-specific 18 task that requires the reviewing court to draw on its judicial experience and common 19 sense.” Id. at 679. A court is generally limited to the pleadings and must construe 20 “[a]ll factual allegations set forth in the complaint . . . as true and . . . in the light most 21 favorable to [the plaintiff].” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 22 2001) (quoting Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996)). 23 But a court need not blindly accept conclusory allegations, unwarranted deductions of 24 fact, and unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 25 988 (9th Cir. 2001). 26 IV. DISCUSSION 27 Dell moves to dismiss MerkAmerica’s claims under the UPA and UCL on 28 grounds that: (1) the claims are barred by the Agreement’s choice of law provision 1 selecting the laws of Texas to govern the contract; (2) the claims are barred by the 2 Agreement’s limitation of liability provision; and (3) MerkAmerica fails to 3 sufficiently state a claim. (See Mot 1.) The Court addresses each argument in turn. 4 A. Choice-of-Law 5 First, Dell argues that Texas law governs the Agreement under its choice-of-law 6 provision and that no exception applies for MerkAmerica’s claims under a conflict of 7 laws analysis as between Texas and California. (Mot. 8–13 (citing Nedlloyd Lines 8 B.V. v. Super. Ct., 3 Cal. 4th 459, 464–66 (1992)).) In opposition, MerkAmerica 9 argues that the choice of law provision in the Agreement should be interpreted 10 narrowly and that it does not preclude MerkAmerica’s present claims. (Opp’n to Mot. 11 (“Opp’n”) 4–17, ECF No. 13.) 12 “Federal courts sitting in diversity must apply the forum state’s choice of law 13 rules to determine the controlling substantive law.” Fields v. Legacy Health Sys., 413 14 F.3d 943, 950 (9th Cir. 2005) (internal quotation marks omitted). Therefore, here, the 15 Court applies the choice of law rules of the state of California. Hatfield v. Halifax 16 PLC, 564 F.3d 1177, 1182 (9th Cir. 2009). California “ordinarily examines the scope 17 of a choice-of-law provision in a contract under the law designated in that contract.” 18 Narayan v. EGL, Inc., 616 F.3d 895, 898 (9th Cir. 2010); see also BM Real Estate 19 Servs., Inc. v. Oak Mortg. Sols. LLC, No. CV 20-3974-KS, 2020 WL 5834288, at *1 20 (C.D. Cal. Sept. 3, 2020) (“If the parties state their intention in an express 21 [contractual] choice-of-law clause, California courts ordinarily will enforce the 22 parties’ stated intention.”). 23 As noted above, the Agreement states, “The laws of the State of Texas govern 24 this Agreement . . . .” (Decl. of Christopher Rich, Ex. A (“Agreement”) ¶ 12, ECF 25 No. 11-2 (emphasis added).) Accordingly, the Court applies Texas law to determine 26 which claims the Agreement covers. Under Texas law, “[t]he wording of a 27 contractual choice of law provision controls the types of claims it governs.” 28 McDaniel v. Credit Sols. of Am., Inc., No. 3:08-CV-0928-N, 2012 WL 13102240, 1 at *6 (N.D. Tex. Mar. 21, 2012). “[A] broad choice of law clause may cover all 2 actions arising from the parties’ relationship,” whereas “a narrow choice of law clause 3 does not address the entirety of the parties’ relationship.” Id. (internal quotation 4 marks omitted). Here, the Agreement’s choice-of-law provision is narrow in scope, as 5 it expressly limits its reach to the Agreement itself. See, e.g., Benchmark Elecs., Inc. 6 v. J.M. Huber Corp., 343 F.3d 719, 726–28 (5th Cir. 2003) (finding language that the 7 “Agreement shall be governed by, and construed in accordance with, the internal laws 8 of the State of New York” narrowly limited); McDaniel, 2012 WL 13102240, at *5–6 9 (finding language “that the laws of the State of Texas shall govern any disputes arising 10 from this Agreement” similarly narrow in scope). 11 Turning to the Complaint, MerkAmerica’s claims fall outside the scope of the 12 Agreement’s choice-of-law provision. MerkAmerica alleges that Dell hindered 13 competition by giving a “secret” benefit to another company that was not offered to all 14 resellers. (See generally Compl.) These claims arise under the UPA and UCL, not the 15 Agreement. See Narayan, 616 F.3d at 899 (“While the contracts will likely be used as 16 evidence to prove or disprove the statutory claims, the claims do not arise out of the 17 contract [or] involve the interpretation of any contract terms . . . .”). 18 Furthermore, Dell’s reliance on Nedlloyd is misplaced in that it attempts to put 19 the cart before the horse. As the claims fall outside the scope of the Agreement’s 20 choice-of-law provision, the Court need not perform any conflict of law analysis 21 under Nedlloyd; there is no potential conflict of law. See Gustafson v. BAC Home 22 Loans Servicing, LP, 294 F.R.D. 529, 537 (C.D. Cal. 2013) (“Under Nedlloyd, a trial 23 court ‘should first examine the choice-of-law clause and ascertain whether the 24 advocate of the clause has met its burden of establishing that the various 25 claims . . . fall within its scope.’” (emphasis added) (quoting Wash. Mutual Bank, FA 26 v. Super. Ct., 24 Cal. 4th 906, 916 (2001))). 27 Therefore, Dell’s Motion is DENIED to the extent it relies on the Agreement’s 28 choice-of-law provision. 1 B. Limitation of Liability 2 Second, Dell argues that MerkAmerica’s claims are barred by the limitation of 3 liability as set forth in the Agreement. (Mot. 13; see Agreement ¶ 10.) That clause 4 states, “Dell does not accept liability beyond the remedies set forth in this 5 agreement . . . . Both parties expressly agree that in no event shall either party be 6 liable to the other . . . .” (Agreement ¶ 10.) MerkAmerica contends, however, that 7 this provision does not bar its claims because California Civil Code section 1668 8 “forbids contracts from exempting liability for fraud, willful injury, or violation of the 9 law.” (Opp’n 17.) 10 Section 1668 does not “invalidate all contracts that seek to exempt a party from 11 responsibility for any violation of law, including any common law or contractual 12 violation.” Health Net of Cal., Inc. v. Dep’t of Health Servs., 113 Cal. App. 4th 224, 13 233 (2003). But “‘there is assuredly a point at which a limitation on the scope of 14 remedies reaches the point of constituting an exemption’ from responsibility for a 15 violation of the law.” BlueGem Sec., Inc. v. Trend Micro Inc., No. CV09-1492 ODW 16 (FFMx), 2010 WL 11505702, at *8 (C.D. Cal. June 8, 2010) (quoting Health Net of 17 Cal., 113 Cal App. 4th at 240). If a limitation clause exempts the defendant from all 18 liability of wrongdoing that may be imposed by law, then it is invalid under 19 section 1668 as the injured party must still “retain the right to seek redress.” Farnham 20 v. Super. Ct. (Sequoia Holdings, Inc.), 60 Cal. App. 4th 69, 77 (1997); BlueGem, 2010 21 WL 11505702, at *11. 22 Here, the Agreement’s limitation of liability purportedly exempts Dell from any 23 liability for wrongdoing, thereby robbing MerkAmerica of any viable remedy for 24 violations of the UCL and UPA. The limitation clause states, “liability is strictly 25 limited to the total dollar amount of products and services purchased and paid for by 26 you . . . during the twelve months immediately preceding the date . . . of any claim of 27 liability.” (Agreement ¶ 10.) For claims pursuing “lost profits” or “loss of business” 28 (see id.), this remedy would perhaps be sufficient. However, for claims outside of the 1 scope of the Agreement, such as violations of the UCL and UPA, the limitation of 2 liability purports to preclude any remedy and, thus, directly violates section 1668. See 3 Health Net of Cal., 113 Cal App. 4th 235 (“[S]ection 1668 prohibits the enforcement 4 of any contractual clause that seeks to exempt a party from liability for violations of 5 statutory and regulatory law . . . .”); see also BlueGem, 2010 WL 11505702, at *11 6 (finding that “the limitation clause does not apply to [Plaintiff’s] claim premised on 7 Defendant's acts exceeding the scope of the parties’ Agreement”). As MerkAmerica’s 8 UPA and UCL claims cannot be barred merely by virtue of the Agreement’s limitation 9 of liability clause, Dell’s Motion is DENIED to the extent it relies on that provision. 10 C. UPA and UCL Claims 11 Lastly, Dell argues that MerkAmerica fails to sufficiently state a claim under 12 either the UPA or UCL because the alleged discount was not: (1) provided by Dell; 13 (2) “unearned”; or (3) “secret.” (See Mot. 14–16.) 14 1. UPA Claim 15 The UPA “declares unlawful both the secret payment of rebates or unearned 16 discounts and the secret extension of special services or privileges not extended to all 17 purchasers on like terms and conditions.” Eddins v. Redstone, 134 Cal. App. 4th 290, 18 331 (2005). Under the UPA, a plaintiff must sufficiently establish three elements: 19 (1) that the defendant has provided a “secret allowance of an unearned discount”; 20 (2) the secret, unearned discount caused “injury to a competitor”; and (3) that allowing 21 the continued provision of the “allowance tends to destroy competition.” Diesel Elec. 22 Sales & Serv., Inc. v. Marco Marine San Diego, Inc., 16 Cal. App. 4th 202, 212 23 (1975). As the UPA is designed to “foster competition by preventing or discouraging 24 secret allowances of unearned discounts,” it must be “interpreted liberally.” Id. 25 at 214–15. 26 First, Dell contends MerkAmerica fails to establish that Dell provided a secret 27 allowance of an unearned discount because a third-party vendor—i.e., not Dell— 28 provided Avallax with the alleged discount. (Mot. 14–15.) However, Dell 1 oversimplifies both MerkAmerica’s allegations and what is required under the UPA. 2 Although MerkAmerica does not allege Dell directly provided a discount to Avallax, 3 it does allege facts which plausibly establish that Dell provided an allowance of a 4 discount to Avallax. (Compl. ¶¶ 37–38.) Under MerkAmerica’s theory, Dell told 5 Avallax how to purchase gift cards at a discount and permitted Avallax to use the gift 6 cards to purchase refurbished products. (Compl. 37–44; Opp’n 20–21.) The alleged 7 discount was “provided” by Dell in so much as Dell was the conduit through which 8 Avallax learned of the gift card discount and could redeem the gift cards. (Compl. 9 ¶¶ 37–38.) See Eddins, 134 Cal. App.4th at 333 (finding that unearned discounts are 10 “special services or privileges not extended to all purchasers”). Thus, MerkAmerica 11 adequately alleges the first element of its UPA claim. 12 Second, Dell argues that the alleged discount was not “unearned” by Avallax 13 because Avallax purchased over $1,000,000 in gift cards to qualify for the discount. 14 (Mot. 15.) However, MerkAmerica alleges that Dell “secretly extended . . . special 15 services or privileges” to Avallax by discriminating in its favor—namely, by 16 informing Avallax it could purchase refurbished products with gift cards and that it 17 could purchase gift cards at a discount from RK Incentives. (Compl. ¶ 44; Opp’n 21.) 18 Avallax may have spent over $1,000,000 on gift cards to qualify for the discount with 19 RK Incentives, but under MerkAmerica’s theory, what Avallax did not “earn” was the 20 right to know about the gift card discount before MerkAmerica and other resellers. 21 (See Compl. ¶ 44; see also First Class Vending, Inc. v. Hershey Co., No. CV-15- 22 01188-MWF (FFMx), 2015 WL 12426155, at *5 (C.D. Cal. July 28, 2015) (finding 23 that the competitor did not “earn” the “relaxed . . . conditions and thresholds required” 24 to qualify for the discount). Thus, MerkAmerica adequately alleges the second 25 element of its UPA claim. 26 Third, Dell argues the discount was not “secret” because Dell informed 27 MerkAmerica of the Program in August 2017. (Mot. 15–16.) But again, Dell 28 oversimplifies MerkAmerica’s allegations and what is required to state a claim under 1 the UPA. Although Dell eventually informed MerkAmerica of the Program, 2 MerkAmerica was ignorant of the discount for more than a year after Avallax began 3 using gift cards to purchase Dell products. (Compl. ¶¶ 29–30, 37.) See W. Pac. Kraft, 4 Inc. v. Duro Bag Mfg. Co., 794 F. Supp. 2d 1087, 1090 (C.D. Cal. 2011) (finding that 5 a discount was secret when there was no evidence that the plaintiff or the public knew 6 of its essential terms). Moreover, MerkAmerica alleges it was injured by the secret 7 discount, as it went out of business because it did not know about the Program. 8 (Compl. ¶¶ 34–36, 40, 46; see Packaging Sys., Inc. v. PRC-Desoto Int’l, Inc., 268 F. 9 Supp. 3d 1071, 1087 (C.D. Cal. 2017) (explaining that competition is destroyed when 10 over the long run, the discount will put the plaintiff out of business).) MerkAmerica 11 adequately alleges the third and final element of its UPA claim. Accordingly, 12 MerkAmerica sufficiently alleges a claim under the UPA. 13 2. UCL Claim 14 The UCL prohibits “any unlawful, unfair or fraudulent business act or practice 15 and unfair, deceptive, untrue or misleading advertising.” Bus. & Prof. Code § 17200. 16 “The scope of the UCL is quite broad. . . . Because the statute is framed in the 17 disjunctive, a business practice need only meet one of the three criteria to be 18 considered unfair competition.” Hale v. Sharp Healthcare, 183 Cal. App. 4th 1373, 19 1381 (2010). Thus, to state a claim under the UCL, the plaintiff must allege a theory 20 under the ‘unlawful,’ ‘unfair,’ or ‘fraudulent’ prong, and there must be an underlying 21 violation of law to “serve as the predicate” for a section 17200 action. Klein v. Earth 22 Elements, Inc., 59 Cal. App. 4th 965, 969 (1997). 23 Dell challenges the UCL claim on the ground that MerkAmerica fails to state a 24 claim under any of the above-mentioned prongs.2 (Mot. 17–18.) MerkAmerica 25 responds that it adequately pleads its UCL claim under the “unlawful” and “unfair” 26 prongs. (Opp’n 23–24.) Thus, the Court considers only these two prongs. 27 2 Dell also argues that MerkAmerica’s UCL claim is barred because it arises solely from Dell’s 28 performance under the Agreement. (Mot. 17.) But this argument fails because, as explained above, the rights asserted in the claim arise under the UCL, not the Agreement. (See Part IV(A), supra.) 1 First, Dell argues that MerkAmerica fails to state a claim under the “unlawful” 2 prong because the UCL claim is based on the UPA claim. (Mot. 17.) Indeed, “[t]o 3 plead an ‘unlawful’ practice, a plaintiff ‘must allege facts sufficient to establish that a 4 statute was violated and who, specifically, acted in violation of the statute.’” Mass. 5 Cas. Ins. Co. v. Katz, No. CV 12-4133-GHK (VBKx), 2012 WL 12886215, at *6 6 (C.D. Cal. Oct. 17, 2012) (quoting Rupisan v. JP Morgan Chase Bank, NA, No. 1:12- 7 CV-0327 AWI GSA, 2012 WL 3764022, at *1 (E.D. Cal. Aug. 29, 2012)). As 8 explained above, however, MerkAmerica sufficiently alleges its UPA claim. See 9 Part IV(C)(1), supra. Therefore, MerkAmerica’s UCL claim is sufficiently pleaded 10 under the “unlawful” prong. 11 Second, Dell argues that MerkAmerica’s UCL claim also fails under the 12 “unfairness” prong. (Mot. 18.) In this context, “the word ‘unfair’ . . . means conduct 13 that threatens an incipient violation of an antitrust law, or violates the policy or spirit 14 of one of those laws because its effects are comparable to or the same as a violation of 15 the law, or otherwise significantly threatens or harms competition.” Cel-Tech 16 Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 187 (1999). Here, although 17 MerkAmerica was eventually informed of the Program ex post, the alleged facts 18 remain that Avallax knew of and capitalized on the Program while MerkAmerica and 19 other resellers were kept in the dark, and this disparity in purchasing power drove 20 MerkAmerica out of business. (See Compl. ¶¶ 44–46.) The Court finds these 21 allegations adequately set forth, at minimum, a significant threat or harm to 22 competition. Cel-Tech, 20 Cal. 4th at 187. Therefore, MerkAmerica’s UCL claim is 23 also sufficiently pleaded under the “unlawful” prong. 24 Thus, Dell’s Motion to Dismiss is DENIED to the extent it seeks to dismiss 25 MerkAmerica’s UCL claim. 26 /// 27 /// 28 /// 1 V. CONCLUSION 2 For the reasons discussed above, the Court DENIES Dell’s Motion to Dismiss 3 || Plaintiff's Complaint (ECF No. 11). Dell shall file its Answer to the Complaint in accordance with Federal Rule of Civil Procedure 12(a)(4)(A). 5 6 IT IS SO ORDERED. 7 8 November 10, 2020 ~

11 OTIS D. HT, Il b UNITED STATES DISTRICT JUDGE

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