Wednesday, February 09, 2022

safety claims aren't puffery when in the context of guns

Johnson v. Glock, Inc., 2021 WL 6804234, No. 3:20-cv-08807-WHO (N.D. Cal. Sept. 22, 2021)

Johnson brought a claim on behalf of a putative class that Glock sold defective firearms. He alleged that specific Glock guns’ chambers are “unsupported,” which can cause damage to brass casings and, sometimes, cause the guns to dangerously blow apart. He adequately pled his claims (CLRA, UCL, FAL, common-law fraudulent omission; I have been made aware that I should write an explainer on the “usual California claims” and I will but not today), except for a few specific statements that weren’t actionable under California’s False Advertising Law, and the claims were not barred by the statute of limitations on the face of the complaint.

The defect allegedly could damage brass casings, rendering them useless when they are usually reusable. In the worst cases, a piece of the casing could dislodge, causing severe injury. Johnson alleged that Glock knowingly failed to disclose the existence of the defect (or its consequences), and that Glock made statements that would lead reasonable consumers to believe the guns were not unreasonably safe.

Statute of limitaions: On the pleadings, Johnson sufficiently alleged that the delayed discovery rule applied. He alleges that he only learned about the defect from a lawyer’s ad, despite previous research into the gun.

None of the materials from Glock, including the materials that came with the gun or the statements on Glock’s website, revealed or even mentioned the possibility of the Defect. The authorized Glock dealer from which Mr. Johnson purchased his gun said nothing to hint at such a Defect. He claims that Glock entered into settlements with confidentiality provisions with those who sued over the defect, to prevent the public from learning about it. And he alleges that the defect is latent, making it easier to avoid discovery.

That was good enough. Glock argued that Johnson must have been aware of the defect due to the damage to casings, but Johnson alleged that the damage would not always be plain to the naked eye. This was an issue best left for discovery. While it was plausible that Glock was on notice of the defect before, “just because a company whose business likely requires it to monitor online chatter would be on notice does not mean that a reasonable consumer with no incentive to perform the same level of monitoring would be on notice. Glock’s pre-sale knowledge, moreover, is alleged to partially depend in part on things like lawsuits that would not be as plausibly within the knowledge of a reasonable consumer.”

As indicated, Johnson also adequately alleged that Glock knew of the alleged defect and had a duty to disclose. “Omissions may be the basis of claims under California consumer protections laws, but to be actionable the omission must be contrary to a representation actually made by the defendant, or an omission of a fact the defendant was obliged to disclose.” This duty can arise when the undisclosed information “cause[s] an unreasonable safety hazard” or when (1) the omission is material, (2) the defect is central to the product’s function, and (3) one of the following is the case: (a) the defendant is the plaintiff’s fiduciary; (b) the defendant has exclusive knowledge of material facts not known or reasonably accessible to the plaintiff; (c) the defendant actively conceals a material fact from the plaintiff; or (d) the defendant makes partial representations that are misleading because some other material fact has not been disclosed. At least, Johnson adequately alleged a safety-hazard theory.

FAL falsity: The court agreed that, unlike the CLRA or fraudulent omission, the FAL requires an affirmative statement because it requires an “advertisement.”

The FAL provides in pertinent part that it’s unlawful to “make or disseminate or cause to be made or disseminated … any statement, concerning ... [the business’s] services ... or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.” Thus, “[t]here can be no FAL claim where there is no ‘statement’ at all.” There can be FAL liability for omissions, though, as long as the claim is based on omission of information from the challenged advertisement.

Glock argued that the challenged statements were all puffery. The court agreed that these statements about the guns were vague and standardless puffery: a “profound series of engineering feats,” “revolutionary,” “perfection in every facet of design, engineering, and manufacturing,” “the standard by which all others are compared,” “revolutionary design,” and “Glock Perfection.” Likewise, statements about Glock’s culture were puffery: “culture of continuous improvement,” “continuous pursuit of perfection,” and “[w]e will continue to invest tremendous resources in the technology and talent necessary to improve our products wherever possible; and we will always strive to deliver maximum customer satisfaction.”

But matters were different with statements about safety, as applied to guns: “Safe Action®,” “Safe. Simple. Fast. = Confidence,” and that the gun “delivers on our promise of safety, reliability, and simplicity.” Whether this was puffery was for a factfinder. True, other cases have held that specific uses describing a product as “safe” or operating “safely” were puffery.

But none of those cases … examined a product like a gun. In that particular context, a representation that a gun is “safe” may well have a specific and measurable meaning to a reasonable consumer. No one disputes that, when made incorrectly, guns can be dangerous—indeed, it is a staple of Glock’s briefing that igniting gun powder is dangerous. When a seller represents that a gun is “safe,” a reasonable consumer may understand that to be a concrete representation that, at the very least, the gun will not erratically explode when used correctly.

Other “safety” cases involved far different products, such as a car’s door closure and a cruise line’s services, where safety would be harder to define/measure.

Also, the economic loss rule didn’t bar the fraudulent omission claim.

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