self-granted star ratings were textbook puffery where claimed features were general

Knowles v. Arris International PLC, No. 17-CV-01834-LHK, 2019 WL 3934781 (N.D. Cal. Aug. 20, 2019)

Plaintiffs brought a class action based on Arris’s alleged failure to disclose defects with its SB6190 cable modem. After the court certified a California class, Arris successfully won summary judgment.

First, latency defects didn’t make the modem unmerchantable in violation of the Song-Beverly Act. “To be unmerchantable, a consumer good must fail to possess even the most basic degree of fitness for ordinary use.” For example, the California Court of Appeal has held that “[a] vehicle that smells, lurches, clanks, and emits smoke over an extended period of time is not fit for its intended purpose”; the Ninth Circuit read that to mean that complete inoperability isn’t required if the defect “drastically undermined the ordinary operation” of the product; a defect in a vehicle’s fuel system that required more frequent refueling didn’t qualify.  Here, although latency test results showed that the SB6190 Modem was milliseconds slower than promised in laboratory test conditions, that didn’t show that the model lacked a basic degree of fitness for ordinary use. The latency values measured in the milliseconds and were at most barely perceptible, and there were no safety concerns involved (in contrast to a car case in which a reasonable juror “could conclude, for instance, that a rear-view camera whose image spontaneously freezes without warning while a car is moving in reverse...may present a hazardous or dangerous condition”).  For similar reasons, the failure to disclose the latency issues didn’t violate consumer protection laws.

False advertising under the FAL, CLRA, and UCL: The representations about the modem’s speed were either puffery or not false. The relevant representations on the front of the box were “First Gigabit+ Cable Modem” and “Speeds Up to 1.4 GBPS.” The back had a chart comparing the modem to Arris’s other cable modem models, with five stars for features including “HD Multimedia Streaming,” “Internet Browsing,” “Large file downloads – music/videos,” and “High-Performance Online Gaming” compared to four and three stars for other models.  The star comparisons were “textbook” puffery.  They were too laudatory and generalized to be falsified. Plaintiffs didn’t explain how one would measure whether a given modem is “five stars” as opposed to “four stars.”

As for “Speeds up to 1.4 Gbps,” that wasn’t a claim that the modem “always” or “consistently” reaches speeds of 1.4 Gbps, and there was no evidence that it couldn’t reach such speeds.  

And no reasonable consumer would understand Arris’s statement on the box that the modem was “compatible” with Comcast to promise that the consumer would receive 32 channels from Comcast; the box stated “32 Downstream Channels” and “Get what you pay for – supports Gigabit service tiers.” The very bottom of the front of the box said: “Compatible with Major U.S. Cable Providers, Including: Xfinity from Comcast / Time Warner / Cox.” That didn’t promise 32 channels and resulting gigabit speeds on Comcast regardless of a consumer’s Comcast service plan.  “Supports” Gigabit service tiers wasn’t a guarantee, and the side of the box also stated that “Actual speeds will vary, and are often less than the maximum possible. Upload and download speeds are affected by several factors including, but not limited to: the capacity of, and the services offered by your cable service provider or broadband service provider ….”  No reasonable jury could find a factual claim.