Tuesday, March 18, 2014

Reliability, safety, and 1050-1150 RPM speed claims are puffery

Smith v. LG Electronics U.S.A., Inc., 2014 WL 989742, No. C 13-4361 (N.D. Cal. Mar. 11, 2014)

Smith sued LG over allegedly defective washing machines that shook and vibrated excessively during use.  In 2012, the CPSC recalled the machines due to risk of personal injury and property damage.  A free in-home repair involved a software upgrade that allegedly fixed the problem by capping the spin speed of the machines, so they weren’t capable of operating at their advertised extra high speed, which impaired their performance by increasing wash (and drying) time.

Smith brought various warranty and California consumer protection claims.  The court found no violation of express or implied warranties, which were limited to one year from the date of purchase.

Many of the challenged statements were puffery, not warranties.  “Vague statements regarding reliability, dependability, and safety are not actionable express warranties.”

Thus, statements that the machines were safe for residential use and fit for everyday laundering needs, that they would provide many years of reliable service, and that they were designed and manufactured for years of dependable service – are not statements of affirmation and promise, but rather non-actionable puffery. Such generalized advertisements say nothing about the specific characteristics or components of the machine, and include no guarantee, for example, that the machine will not require a repair within a specified period of time.

As for statements alleged to be express warranties, Smith didn’t allege facts showing that the machines didn’t have a high speed cycle (etc.) at the time of sale.  The lowered spin speed after the recall (and outside the one-year warranty period) didn’t render the statements at the time of sale false.

The consumer protection claims also failed.  Smith alleged that defendants’  statements that the washing machines would provide many years of reliable service;” were “designed and manufactured for years of dependable service;” were capable of operating “extra high” spin speed cycles, at 1050–1100 RPMs; were Energy Star@ and/or “HE” compliant; and were safe for residential use and fit for everyday laundering needs were false, but the complaint flunked Rule 9(b)’s particularity requirement.  These were the same “vague and generalized statements of opinion or sales puffery,” not statements on which a reasonable consumer would rely.  (Really? Capable of operating at a certain RPM seems plenty specific and testable, as does “Energy Star” compliant.) Plus, Smith didn’t adequately allege falsity/misleadingness; she didn’t allege that these features weren’t present during the one-year warranty period.  She couldn’t base claims on statements that weren’t untrue or misleading at the time they were made.  (But this slides over the question about misleadingness: isn’t it misleading to represent, albeit implicitly, that a product will continue to work in pretty much the same way over time? There’s a difference between being out of warranty and not providing a core benefit because of a deliberate design choice.) Plus, Smith didn’t allege facts indicating that defendants were aware of or had reason to know of the excessive noise and vibration at the time of sale, which the court says is a requirement (though I don’t think it is under all California’s consumer protection laws).

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