continued desire to purchase TVs suffices for California standing

Julian v. TTE Technol., Inc., 2021 WL 810228, No. 20-cv-02857-EMC (N.D. Cal. Mar. 3, 2021)

Plaintiffs alleged false advertising of TTE’s TVs in violation of California and New Jersey law; the court granted the motion to dismiss but allowed leave to amend as to injunctive relief claims.

According to Plaintiffs, it is false or misleading for TTE to market the televisions as having a “120Hz CMI effective refresh rate” when in fact the televisions have a 60Hz refresh rate. Two of the four named plaintiffs alleged:

• “As a result of [TTE’s] false and misleading statements, Plaintiff...paid more for his [TTE] television than he would have paid had [TTE’s] advertising and representations been truthful.”

• “Plaintiff...would like to purchase a [TTE] television in the future if he knew he could trust their [sic] refresh rate advertising. But, without a court ordering [TTE] to fix their [sic] advertising, Plaintiff...has no way of knowing whether he can trust [TTE’s] refresh rate advertising.”

• “As a result of [TTE’s] false and misleading statements, Plaintiff...paid for a television that [TTE] misrepresented as using technology and including technical capabilities it did not actually have. Plaintiff would not have bought the television but for [TTE’s] refresh rate (Hz) misrepresentations.”

• Plaintiff has experienced poor picture quality when using the TTE television for, e.g., action movies, sports, or video games.

Was this plausible? If plaintiffs wanted a 120Hz television only, not a 60Hz television with poorer picture quality, TTE argued, then “correcting TTE’s alleged advertising to 60Hz would not affect [their] purchasing decisions.” But “the point of the injunctive relief is to prevent TTE from engaging in false advertising so that Mr. Julian and Mr. Pacano can rely … on TTE’s advertising in the future – i.e., so that they can decide whether or not to purchase a television from TTE.” Second, it wasn’t clear that they would never buy a TTE TV in the future. “It is not inherently contradictory for Mr. Julian and Mr. Pacano to make both allegations (i.e., to assert that they would not have bought the televisions or would have paid less for the televisions had there been no false advertising).” The TVs weren’t allegedly worthless if truthfully advertised.

TTE argued that there was no actual or imminent threat of future harm because, now that the individuals know what is meant by “120Hz CMI effective refresh rate,” they will not be deceived in the future: “merely looking at the online specifications or product label would clear any ambiguity.” Again, though, the harm was inability to rely on advertising. As another court cited by the 9^th Circuit has held, “A material representation injures the consumer not only when it is untrue, but also when it is unclear whether or not it is true.” A consumer need not check the fine print and is not expected to look beyond misleading representations on the front of a package to discover the small-print truth. And, in fact, plaintiffs “could not know whether the TTE televisions were truly 120Hz or 60Hz without purchasing them.”

But were they really likely enough to be on the market for a TV for an actual or imminent threat of future harm? TVs aren’t like flushable wipes in terms of repeat purchases. “[S]ome day” intentions for the future are not sufficient to establish standing. The complaint’s current allegations weren’t good enough without any factual allegations to “suggest a purchase in the relatively near or forseeable future …, at least in the context where, as here, the goods are not, e.g., consumable items that are bought on a repeat basis …, but rather a durable good not typically purchased on a regular basis.”