A Minnesota federal court has dismissed a proposed class action alleging household sealants turn yellow despite being advertised as “crystal clear.” Ehlis v. DAP Prod., Inc., No. 20-CV-1872 (PJS/ECW), 2021 WL 83269, at *1 (D. Minn. Jan. 11, 2021).

This putative nationwide class brought a host of fraud and warranty claims against DAP, some under Maryland law, and others under Minnesota law. Defendant then moved to dismiss the complaint.  To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).  A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.  Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Claims sounding in fraud are subject to the heightened pleading requirement of Fed. R. Civ. P. 9(b). To assert a fraud claim with the particularity required under Rule 9(b), a complaint must allege in detail “the who, what, when, where, and how” of the fraud. Parnes v. Gateway 2000, Inc., 122 F.3d 539, 550 (8th Cir. 1997).

Here, the complaint fell well short of these standards, as it was “woefully devoid of factual allegations.”  Specifically, plaintiff did not not identify where he bought the sealant; when he bought the sealant; the source or sources of the representation that he read or heard; whether he read or heard the allegedly fraudulent representation moments before he bought the sealant or instead some days, weeks, months, or years earlier; where he used the sealant nor when the sealant yellowed or when he discovered that the sealant had yellowed. Significantly, all of the missing information identified by the court was presumably within the knowledge of plaintiff, and all of it could have been provided in a brief paragraph or two in the complaint. 2021 WL 83269, at *2.