Tuesday, December 08, 2020

Power pack plausibly promises more than it delivers

Geske v. PNY Technol., Inc., No. 19-cv-05170, 2020 WL 7042887 (N.D. Ill. Nov. 30, 2020)

A delightful example of Seventh Circuit style, clear but respectful of the parties’ arguments.

Geske alleged that PNY’s portable power bank, whose package prominently declared that it offered “5200 mAh” of available power for “3x CHARGES*,” didn’t offer “5200 mAh” of power to her cell phone. She alleged that she had to recharge the power bank more often than she thought and that the power bank was never capable of delivering 5200 mAh of power at all because the power bank itself consumes a significant portion of the power. As the court explained: “[I]t takes power to send power. The power bank must use some of the power to convert and distribute power from the internal battery to the connected device. This process can use as much as 30 to 40 percent of the battery power of the power bank.” Geske alleged that the amount of power is “the material factor in making a purchasing decision, because the function of the power bank is to provide power, and more is better.”

When she became disillusioned, “Geske didn’t return the device to the store. Instead, she hired a laboratory to figure out if her $12.99 power bank underperformed.” The lab tested two other PowerPack 5200s and two PNY PowerPack 1800s, which delivered about a third less and 45% less mAh than labeled, respectively.

Geske alleged claims under the Illinois Consumer Fraud and Deceptive Business Practices Act and comparable statutes in other states, breach of warranty, and unjust enrichment.

Geske had standing for damages: she alleged that she didn’t get what she paid for, which is a concrete injury. PNY argued that she didn’t allege that her power bank was defective, only that two others, tested by the lab, were. But this was to ignore the allegations of the complaint, which included allegations that she didn’t receive the charging power she expected. So she relied on her own personal experience, “not merely an extrapolation from testing data.” [From a scientific/predictive perspective, it’s weird to value anecdotes over data, but here we are.]

Geske also had standing to sue on behalf of purchasers who sustained a substantially similar injury, even if they didn’t buy the exact same power bank, given that PNY’s different power banks allegedly operate in the same manner and are allegedly marketed in the same way: by placing “prominent representations” about the power banks’ mAh on the packaging and using the mAh in the products’ names. The power banks allegedly “consume about the same percentage of the total battery capacity (about a third of the power), regardless of the starting point.”

However, Geske lacked standing to seek injunctive relief on the usual “won’t get fooled again” rationale. Even if public policy concerns point in the other direction, Article III doesn’t care about public policy, and the FTC can fill any gap. Also, injunctive relief remains possible if plaintiffs plead a cognizable, imminent future harm. Geske didn’t allege there was any likelihood she’d be deceived in the future.

The ICFA claim was plausibly pled. While PNY argued that the labeling of the PowerPack 5200 never made a representation about the amount of power that the product could deliver to another device, but only about the capacity of the battery (the picture of the bottom of the power bank said “Capacity: 5200mAh”), the court was unwilling to declare, as a matter of law, that Geske’s interpretation was unreasonable.

PNY referred to Department of Energy regulations that explain a battery’s capacity is usually given in mAh, but that was outside the pleadings—and “it seems like a safe bet that not a lot of consumers have read Department of Energy regulations about battery capacity.” PNY argued that reasonable consumers understand that “it takes energy to transfer energy,” but that wasn’t convincing on a motion to dismiss even if it was plausible. It wasn’t the case that information on the package would prevent a reasonable consumer from coming to another conclusion. “The existence of a competing narrative, without more, is not enough to defeat a claim when plaintiff’s theory of the case is plausible.”

PNY argued that the packaging clarifies that it offered “3x CHARGES*.” The asterisk refers to the back of the packaging, which reveals that the potential “3x CHARGES*” actually “varies by device.” Although any consumer could understand this claim, a consumer “presumably would not understand the relationship between the number of charges and the number of mAh,” and the phrase didn’t fully explain the mAh reference. Indeed, the court pointed out, there’s a disconnect between PNY’s argument here and its argument with respect to the mAh number. “3x CHARGES*” plainly refers to what a consumer’s electronic device will receive, while PNY argued that 5200 mAh refers to the power bank’s capacity, not what the electronic device will receive.

While a previous (now reversed, but not when this opinion was written) district court had allowed “100% Parmesan Cheese” to not be 100% cheese, because the ingredient panel revealed otherwise and the product was unrefrigerated,

[c]ommon sense probably comes into play with unrefrigerated cheese more than the electrical capacity of charging devices. Consumers have intuitions about room temperature dairy products. They’re less likely to have a gut feeling about what it means for a charging device to offer mAh. Unlike a package of cheese sitting out on a room-temperature shelf in a grocery store, a power bank lacks “commonsense, observable” facts that would allow a reasonable consumer to contextualize representations that a power bank offers 5200 mAh.

In a footnote, the court pointed out that it was unclear whether the power bank actually provided “3x CHARGES*.” “If the device actually delivered three charges, but yet provided less than 5200 mAh, then it is possible that Geske might not have a claim.” But at this stage, we don’t know.

The common law claims survived as well.


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