Tuesday, October 29, 2019

DuraBlend leather-ish label not misleading

Razo v. Ashley Furniture Indus., Inc., No. 17-56770, 2019 WL 5543849, --- Fed.Appx. ---- (9th Cir. Oct. 28, 2019)

Ashley preserved its summary judgment win in this putative class action asserting the usual California claims against furniture with leather-ish components.  Under the reasonable consumer test, representations must be viewed “reasonably and in context” to determine whether the material as a whole is misleading. A court presumes that consumers will read “qualifying language [that] appears immediately next to the representations it qualifies.” However, consumers are not required to “look beyond misleading representations on the front of the [tag] to discover the truth ... in small print on the side of the [tag].”
front: "contents 57% polyurethane, 26% poly/cotton and 17% leather"

back: Durablend is a material that contains ground, pulverized, shredded, reconstituted,or bonded leather [ed. note: sounds delightful!] and is not wholly the hide of an animal and should not be represented as being 100% leather.

Here, the disclosures were “unambiguous and truthful” and on the front and back of Ashley’s DuraBlend hangtag. Neither of these disclosures was “hidden or unreadably small,” and the one on the front was “immediately next to” a list of DuraBlend’s features. [I would have said "immediately below" based on this picture but I doubt that makes any difference.] “A reasonable consumer reading that list of features would also read those disclosures and discover that DuraBlend is not genuine leather.” And the disclosures themselves were truthful and not deceptive (though that was also true of the ingredients list in Williams—the key point seems to be that the initial message was not “deceptive but arguably corrected by the disclosures”; rather the initial message was not deceptive in need of correction at all). The disclosures truthfully stated that DuraBlend (unlike other imitation products) “contains ... leather” “without deceptively suggesting that DuraBlend contains intact animal hides like genuine leather. The DuraBlend hangtag explicitly states that DuraBlend is not and should not be represented as 100% leather. No consumer, reading this disclosure reasonably and in context, would conclude that DuraBlend is genuine leather.”

Further, Ashley was not responsible for representations made by a furniture store salesperson about DuraBlend. Claims under California consumer protection law “cannot be predicated on vicarious liability.” Instead, only Ashley’s “personal participation in the unlawful practices and unbridled control” over those deceptive practices could produce liability; this wasn’t shown.

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