Thursday, November 05, 2015

estimated retail value claim isn't puffery

Kabbash v. Jewelry Channel, Inc. USA, 2015 WL 6690236 (C.D. Cal. Nov. 2, 2015)
Holding of most general interest: “Estimated retail value” statements and statements of discount or savings amounts at check-out where the discount calculations were based on that estimated retail value were not puffery, because they were specific and quantifiable.  The phrase “estimated retail value” “can reasonably be read to imply that the figure is at least measurably based on a list retail price that is presumed to be suggested by the manufacturer and capable of verification,” reinforced by a checkout notice such as, “You saved $130.00 today!” with the dollar figure in bold type.”  Defendant argued that the estimated retail value was merely an opinion—an estimate (opinion) of value (also opinion).  That ignored the meaning of “retail” in the phrase—individually, those terms could be puffery, but “estimated retail value” “is anchored in fact by a quantifiable retail price.”  The FTC and securities cases have also agreed that misrepresentations of costs can be misleading and are too specific to be puffery.
The court also, contrary to a number of district courts in the Ninth Circuit, found that the named plaintiffs could seek injunctive relief on behalf of a class, given the purpose of California’s consumer protection laws.  “Because some members of the class do not have the same knowledge as Plaintiffs now do, there is a likelihood of repeat injury for the class as a whole, and on the basis of ‘class standing,’ the claims may proceed.”

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