Hard drive plaintiff gets one more byte

Suzuki v. Hitachi Global Storage Technologies, Inc., 2007 WL 2070263 (N.D. Cal.)

Suzuki filed a putative class action against Hitachi for violations of California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. Hitachi removed the case.

Suzuki bought a 250 gigabyte hard drive from Hitachi. Gigs can be measured in decimal or binary; decimal means 1,000,000,000 bytes, and binary means 1,073,741,824 bytes. (Wikipedia’s definition of gigabyte is interesting in this regard.)Hitachi labels its drives in gigs, but doesn’t explain whether that capacity is decimal or binary. Suzuki alleged that use of decimal gigs intentionally and deceptively overstates the capacity available, since standard operating systems measure drive capacity in binary. So, when a consumer buys a “250 gig” hard drive and connects it, Windows and Mac will report approximately 230 gigs free. To get 250 gigs in binary, the drive would need 265,435,456,000 bytes. (Suzuki also alleged that Hitachi deceptively omitted the fact that the drives require formatting and partitioning, which further decrease available storage.) Moreover, Hitachi’s website defined the term gigabyte in both binary and decimal terms, which plaintiff alleged further misled consumers and estopped Hitachi from denying that gigs should be measured with a binary standard. But Suzuki didn’t allege that he ever visited the website before buying.

Hitachi succeeded in dismissing the UCL and CLRA claims under California’s safe harbor doctrine for conduct clearly permitted by the legislature. Congress has declared that “[i]t shall be lawful throughout the United States of America to employ the weights and measures of the metric system,” and California law provides that contracts can’t be objected to on the basis that they use metric measures. This was enough to show that decimal expression was clearly permitted by the legislature. Hitachi wasn’t estopped from this argument because estoppel requires reliance, and plaintiff didn’t rely on the website.

Hitachi also argued that the UCL claim failed because Suzuki didn’t lose money or property. All storage devices use decimal notation, so he wouldn’t have been able to buy a bigger “250 gig” drive (though he alleges he wouldn’t have paid as much for this one had Hitachi disclosed the binary capacity). Plaintiff alleged that he relied on the product packaging, and argued that reasonable consumers would only care about binary capacity because that’s what their computers show. But he didn’t allege that he relied on any statements that the drive capacity was shown in binary gigabytes. (Not sure this is enough – suppose I offer to sell you a ton of X – can I define ton differently than a reasonable consumer would?) Nor did Suzuki allege that he actually believed the drive was measured in binary when he bought it, and that’s required to state a claim under the UCL and CLRA. His other space-related claims (partitioning etc.) failed for the same reasons. At most he relied on Microsoft’s space calculations, but Microsoft’s calculations can’t be imputed to Hitachi.

Similarly, the UCL and FAL claims faced difficulties because plaintiff didn’t allege that he was misled by Hitachi’s statements or that he believed he was buying a drive measured in binary. Given that the California Supreme Court is presently considering a case on the role of actual reliance after Prop. 64, the court decided not to reach the issue at this time. However, even if actual reliance is unnecessary, Suzuki would still need to show that he was an appropriate class representative. For the remaining FAL claim, the court held defendant’s motion to strike the class allegations in abeyance until either (1) the California Supreme Court issues an opinion that disposes of this case, or (2) defendant has taken Suzuki’s deposition to determine whether he was an average consumer who would have been misled.