16-1302-cv
Zito v. United Technologies Corporation, et al.

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
21st day of December, two thousand sixteen.

Present:
                 AMALYA L. KEARSE,
                 RICHARD C. WESLEY,
                 DEBRA ANN LIVINGSTON,
                       Circuit Judges.


_____________________________________

VINCENT ZITO, individually and on behalf of all
others similarly situated,

                          Plaintiff-Appellant,

                 v.                                                      16-1302

UNITED TECHNOLOGIES CORPORATION, UTC FIRE &
SECURITY    CORPORATION,    WALTER   KIDDE
PORTABLE EQUIPMENT, INC., DBA KIDDE SAFETY,
KIDDE FIRE SAFETY,

                  Defendants-Appellees.
_____________________________________

For Plaintiff-Appellant:                          SAMUEL ISSACHAROFF, New York, New York; Marc
                                                  R. Stanley, Martin Woodward, Stanley Law Group,
                                                  Dallas, Texas; Alinor C. Sterling, William M. Bloss,


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                                               Koskoff, Koskoff       &    Bieder,   P.C.,   Bridgeport,
                                               Connecticut.

For Defendants-Appellees:                      CLIFTON SCOTT ELGARTEN, Scott L. Winkelman,
                                               Rebecca Baden Chaney, Crowell & Moring LLP,
                                               Washington, D.C.

          UPON DUE CONSIDERATION WHEREOF IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

          Plaintiff-Appellant Vincent Zito appeals from a judgment of the United States District

Court for the District of Connecticut (Thompson, J.), entered on March 31, 2016, dismissing his

proposed class-action complaint for failing to state a claim upon which relief could be granted.

We assume the parties’ familiarity with the facts, procedural history, and specification of issues

on appeal.

I.        Background

          Zito bought from Home Depot a “smoke alarm” allegedly manufactured by Kidde Safety

(“Kidde”)1 and the Defendants-Appellees.           Smoke alarms sold in the United States primarily

use ionization and/or photoelectric technology. The Kidde smoke alarm at issue uses ionization

technology.       Ionization technology detects smoke from fast-burning home fires faster than

photoelectric technology.       Photoelectric technology detects smoke from smoldering home fires

faster than ionization technology. Zito claims that the smoke alarm’s manufacturer, Kidde,

misled consumers because the alarm is labeled a “smoke alarm” and information about the

differences between ionization and photoelectric technology appears in small print on the bottom

of the package.          Zito brought suit in the District of Connecticut claiming that the

Defendants-Appellees violated the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn.



1
     Walter Kidde Portable Equipment, Inc., does business as “Kidde Safety.”


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Gen. Stat. § 42-110a et seq., breached the implied warranty of merchantability, and committed

fraud.

         The district court concluded that Zito failed to state a claim and dismissed his complaint.

The court held that Zito’s complaint lacked any plausible allegation that the manufacturer made a

deceptive statement.    The alarm detected smoke, as its name suggested. Just because it “may

not detect smoke from smoldering fires as quickly” as a photoelectric smoke alarm, “the

defendants’ failure to elaborate on this fact on the front of the package d[id] not render use of the

term ‘smoke alarm’ deceptive.” J.A. 45.       And even if the term “smoke alarm” were somehow

misleading, the Defendants-Appellees’ disclosure on the bottom of the package would inform a

reasonable consumer.       The disclosure explained the differences between photoelectric and

ionization technology, identified the smoke alarm as an ionization smoke alarm, and

recommended use of both technologies in the home.          We review de novo the district court’s

grant of the motion to dismiss. Deutsche Bank Nat’l Tr. Co. v. Quicken Loans, Inc., 810 F.3d

861, 865 (2d Cir. 2015).

II.      Discussion

         A. CUTPA Claims

         CUTPA provides that “[n]o person shall engage in unfair methods of competition and

unfair or deceptive acts or practices in the conduct of any trade or commerce.”         Conn. Gen.

Stat. § 42-110b(a). CUTPA claims can be based on either an “actual deceptive practice” or an

unfair practice—that is, a “practice amounting to a violation of public policy.” Ulbrich v.

Groth, 78 A.3d 76, 100 (Conn. 2013) (quoting Harris v. Bradley Mem’l Hosp. & Health Ctr.,

Inc., 994 A.2d 153, 173 (Conn. 2010)).      An act or practice is actually deceptive under CUTPA

when it involves “a representation, omission, or other practice likely to mislead consumers”; (2)


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the consumers “interpret the message reasonably under the circumstances”; and (3) “the

misleading representation, omission, or practice [is] material—that is, likely to affect consumer

decisions or conduct.” Smithfield Assocs., LLC v. Tolland Bank, 860 A.2d 738, 749 (Conn.

App. Ct. 2004) (quoting Miller v. Guimaraes, 829 A.2d 422, 434 (Conn. App. Ct. 2003)); see

also Caldor, Inc. v. Heslin, 577 A.2d 1009, 1013 (Conn. 1990).   Zito claims that Kidde engaged

in “actually deceptive” conduct by labeling the smoke alarm as a “smoke alarm” when it was

slower than other smoke alarms at detecting smoke from smoldering fires.      But, as the district

court determined, calling the product a “smoke alarm” was unlikely to mislead consumers since

the product did indeed detect smoke. Cf. Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d

Cir. 2013) (“It is well settled that a court may determine as a matter of law that an allegedly

deceptive advertisement would not have misled a reasonable consumer.”).            Zito did not

plausibly allege facts suggesting that the Kidde smoke alarm does not detect smoke.

       Zito next argues that he successfully raised a claim for unfair conduct under CUTPA.

To state an unfairness claim under CUTPA, a plaintiff must plausibly allege the elements of the

“cigarette rule,” which has courts consider “(1) [w]hether the practice, without necessarily

having been previously considered unlawful, offends public policy as it has been established by

statutes, the common law, or otherwise—in other words, it is within at least the penumbra of

some common law, statutory, or other established concept of unfairness; (2) whether it is

immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to

consumers, [competitors or other businesspersons].”    Ulbrich, 78 A.3d at 100 (quoting Harris,

994 A.2d at 173).       To be “substantial,” an injury must “not be outweighed by any

countervailing benefits to consumers or competition that the practice produces; and it must be an

injury that consumers themselves could not reasonably have avoided.” A-G Foods, Inc. v.


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Pepperidge Farm, Inc., 579 A.2d 69, 77 (Conn. 1990) (internal quotation marks and emphasis

omitted). “All three criteria do not need to be satisfied to support a finding of unfairness.        A

practice may be unfair because of the degree to which it meets one of the criteria or because to a

lesser extent it meets all three.” Ulbrich, 78 A.3d at 100 (quoting Harris, 994 A.2d at 173).

         In an effort to allege that Kidde “offend[ed] public policy,” Zito cites to the Consumer

Product Safety Commission’s (“CPSC”) policy on the effective presentation of safety and hazard

information and the Federal Trade Commission’s (“FTC”) “Policy Statement on Deception.”

The CPSC recommends that safety and hazard information be placed in a location on

instructional documents where a consumer is likely to see it. This statement, however, which

applies specifically to product instructions, not product labels,2 is merely non-binding guidance.

Zito cites no Connecticut authority holding that disregarding such a statement (even assuming

that such disregard is adequately alleged) is sufficient to meet the first prong of the “cigarette

rule.”   As to the FTC’s policy statement, it states that “label disclosures” will “not necessarily

correct a deceptive representation or omission” in an advertisement.3        But as the district court

concluded, Zito failed plausibly to allege a deceptive representation or omission.         Moreover,

because Zito similarly relies on nonexistent allegations of misrepresentation and deception to

support his claim that the Defendants-Appellees’ actions were “immoral, unethical, oppressive,

or unscrupulous,” Zito has also failed plausibly to allege facts supporting the second prong of the

“cigarette rule.”   Finally, as to the third prong, though Zito may have pled that his injury was

substantial, see Langan, 95 F. Supp. 3d at 290, he failed to allege anything about countervailing

2
  See U.S. Consumer Product Safety Commission, Manufacturer’s Guide to Developing Consumer
Product Instructions 45 (Oct. 2003), https://www.cpsc.gov/PageFiles/103077/guide.pdf (last visited Nov.
16, 2016).
3
  FTC Policy Statement on Deception 4 (Oct. 14, 1983),
https://www.ftc.gov/system/files/documents/public_statements/410531/831014deceptionstmt.pdf.


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benefits or that a reasonable consumer could not have avoided the injury. In sum, because Zito

failed adequately to allege a plausible basis for concluding that any of the three prongs of the

“cigarette rule” were satisfied, the district court did not err in dismissing Zito’s CUTPA

unfairness claim.

       B. Breach of the Implied Warranty of Merchantability

       To be “merchantable” under Connecticut law, goods must “pass without objection in the

trade under the contract description,” be “fit for the ordinary purposes for which such goods are

used,” and “run, within the variations permitted by the agreement, of even kind, quality and

quantity.” Conn. Gen. Stat. § 42a-2-314(2).     Under this definition, “if the product conforms to

the quality of other brands on the market, it will normally be merchantable.”           Standard

Structural Steel Co. v. Bethlehem Steel Corp., 597 F. Supp. 164, 188 (D. Conn. 1984) (quoting

James J. White & Robert Summers, Uniform Commercial Code 353 (2d ed. 1980)). “[A]

product may fall ‘considerably short of perfection,’ and yet be merchantable.” Id.

       Zito alleged in his complaint that 95 percent of the smoke alarms sold in America are

ionization smoke alarms. This fact alone strongly undercuts Zito’s claim, here, that the Kidde

smoke alarm is not merchantable because it uses ionization technology.     In addition, Zito does

not dispute that the Kidde smoke alarm meets the standards of national smoke alarm testing

authorities. For these reasons and for substantially the additional reasons stated by the district

court, we conclude that Zito failed to state a claim for breach of the implied warranty of

merchantability.

       C. Fraud

       The essential elements of fraud are: “(1) a false representation was made as a statement

of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to


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induce the other party to act upon it; and (4) the other party did so act upon that false

representation to his injury.”4   Weisman v. Kaspar, 661 A.2d 530, 533 (Conn. 1995).         “Fraud

by nondisclosure, which expands on the first three of [the] four elements [of fraud], involves the

failure to make a full and fair disclosure of known facts connected with a matter about which a

party has assumed to speak, under circumstances in which there is a duty to speak.” Reville v.

Reville, 93 A.3d 1076, 1087 (Conn. 2014) (quoting Gelinas v. Gelinas, 522 A.2d 295, 298

(Conn. App. Ct.), cert. denied, 525 A.2d 965 (Conn. 1987), overruled on other grounds by

Billington v. Billington, 595 A.2d 1377 (Conn. 1991)).      A duty to disclose is imposed when a

seller deliberately hides defects or conceals a material fact from a buyer. Egan v. Hudson Nut

Prods., 114 A.2d 213, 215 (Conn. 1955).

       We agree with the district court that Zito did not plausibly allege any false statement in

his class action complaint nor any basis for inferring fraudulent intent. The Kidde smoke alarm

does detect smoke.     Nor has Zito plausibly alleged that Kidde deliberately hid a defect or

concealed a material fact from buyers.    Here, the alleged hidden defects or concealed material

facts are supposedly (1) that the smoke alarm does not use photoelectric technology and (2) that

consumers should use both types of technology.       But Kidde stated on the packaging that (1) the

smoke alarm did not use photoelectric technology and that (2) usage of both types of technology

was “strongly recommend[ed].”      Thus, we agree with the district court that Zito failed to state a

claim for fraud or fraud by nondisclosure.




4
 Zito originally brought a claim for fraudulent concealment. Because no such claim exists under
Connecticut law, we, like the district court, analyze Zito’s claim as a fraud claim.


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III.   Conclusion

       We have considered Zito’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




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