repeat purchase doesn't render consumer protection claim implausible

Harris v. Rust-Oleum Corp., 2022 WL 952743, No. 21-cv-01376 (N.D. Ill. Mar. 30, 2022)

Rust-Oleum sells RainBrella, “an inexpensive glass treatment for car windshields to help repel rain, mud, and dirt. RainBrella’s packaging includes statements that it ‘Lasts 2X Longer’ than a leading competitor and ‘Lasts Over 100 Car Washes.’” Building on a previous Lanham Act case in which Rust-Oleum was found liable for false advertising, but only the “Lasts 2X Longer” liability survived an appeal, Harris sued under Wisconsin’s consumer protection law and the court kicked out the class action claims, but not her individual claims.

Wisconsin’s Deceptive Trade Practice Act: She sufficiently alleged reliance by alleging that RainBrella prominently displayed statements on its packages, which she bought; that those statements were false; and that, had she known they were not true, she would not have purchased the product. She admittedly purchased the product numerous times over three years, but

that Harris apparently believed RainBrella worked well enough to keep purchasing is not dispositive of the question at issue here, at least with regards to the claim that it “Lasts 2X Longer” than the leading competitor. Harris may have been satisfied enough with RainBrella not to seek out a competing product, but she also may have done so with the belief that RainBrella did indeed, as it stated, “Last 2X Longer” than any other option.