Bad reviews as evidence of actual knowledge of defects

Partida v. Tristar Prods., Inc., 2021 WL 4352374, No. EDCV 20-436 JGB (KKx) (C.D. Cal. Aug. 5, 2021)

This is a putative consumer class action about pans advertised as non-stick that allegedly weren’t (and also weren’t copper as advertised). It was allegedly false to advertise “Cerami-Tech Non-Stick Technology” so that “[n]othing sticks to the surface and cleanup is a breeze” and that the pans were “Chip-resistant, Heat resistant,” and didn’t require fats or oils to be nonstick. The pans allegedly lost their non-stick performance within days or months of purchase. Tristar argued that its statements that the pans were “durable and last a ‘lifetime’ ” were “nonactionable puffery.” But even statements that “might be innocuous ‘puffery’ or mere statement of opinion standing alone may be actionable as an integral part of a representation of material fact when used to emphasize and induce reliance upon such a representation.” This was a question of fact.

Plaintiffs also sufficiently alleged Tristar’s actual knowledge of the alleged defects at the time of purchase, which the court found required for their specific UCL, CLRA, and FAL claims. Although vague allegations about consumer complaints may not suffice to allege awareness, the complaint here listed “dozens” of complaints, including when and where they were posted, and alleged that that 70% and 86% of consumer [reviews] on third-party websites were negative. “Plaintiffs further allege that experts reported that the Pans were not copper cookware, as advertised.” That was sufficient to allege that Tristar was on notice: “when a significant percentage of product reviews identify a problem, then the company that sells that product can reasonably be deemed on notice of the issue, even if only a subset of consumers chooses to leave a review.”