Sandra Hanian

Central District of California Chips Away at Suit Alleging Defective Car Paint

Pexels-photo-26672By Sandra Hanian

On April 13, Judge Beverly Reid O’Connell of the Central District of California dismissed a putative class action lawsuit against Hyundai for selling cars with allegedly defective paint, but allowed most of the plaintiffs leave to amend the complaint.

Fifteen named plaintiffs from across the country alleged that certain 2006-2016 Hyundai Santa Fe, Sonata, and Elantra automobiles had defective “self-healing” paint that Hyundai fraudulently concealed from its customers.  Specifically, the plaintiffs claimed that Hyundai represented that it used “state-of-the-art paint” on its vehicles that would “stand the test of time” and “protect against corrosion, rust[,] and scratches,” when in fact Hyundai used “a coating with a short lifespan of three years” without providing “any warning or disclosure.”  The plaintiffs alleged that when they informed Hyundai about the peeling paint on their cars, they were told that Hyundai would not provide any repairs because the warranty period had already expired or that the condition was just “normal wear and tear,” or Hyundai otherwise refused to assist them. 

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Southern District of California Dismisses Serial Plaintiff’s Suit Challenging Discount Prices

930660427_f9b535e230_oBy Sandra Hanian

On March 22, Judge John A. Houston of the Southern District of California dismissed one of the latest in a long line of putative class action lawsuits against retailers for allegedly deceptive pricing practices at outlet and factory stores, but allowed the plaintiff leave to amend the complaint.

The plaintiff Randy Nunez — who had previously filed putative consumer class actions against Best Buy, Microsoft, ConAgra, and others — alleged that Saks Incorporated advertised false comparable prices and false price discounts for the retailer’s branded merchandise sold at Saks Fifth Avenue OFF 5th stores and on the saksoff5th.com website.  Specifically, he claimed that he purchased a pair of Saks-branded shoes advertised with a “market price” of $145.00 and sold at a discounted sale price of $79.00, but that this and advertised discounts for other products were “nothing more than mere phantom markdowns because the represented market prices were artificially inflated and were never the original prices” for the items sold.  Amended Complaint at ¶¶ 2, 10, Nunez v. Saks Inc., No. 15-02717 (S.D. Cal. Jan. 15, 2016), ECF No. 8.  Further, the plaintiff asserted that the represented “market” prices were not the prevailing market retail prices within 90 days preceding the publication of the advertised former prices, as required by California law.  Nunez alleged that Saks’ pricing practices violated California’s Unfair Competition Law (“UCL”) False Advertising Law (“FAL”), and Consumer Legal Remedies Act (“CLRA”), as well as the Federal Trade Commission Act.

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Standing at a Fork in the Road: Prospective Injunctive Relief in the Ninth Circuit

By Sandra Hanian

Road-nature-lines-country1To have Article III standing to obtain injunctive relief in federal court, a plaintiff must allege a “real or immediate threat” that he will be wronged again in a similar way.  City of Los Angeles v. Lyons, 461 U.S. 95, 96 (1983).  This simple proposition has resulted in a split within the Ninth Circuit, where plaintiffs regularly seek injunctive relief in putative consumer class actions alleging false advertising in violation of California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act.  The question is whether a representative plaintiff can establish a credible threat of future injury when he or she is already aware that the packaging and/or advertising claims on a product are allegedly misleading.  California federal district courts can be categorized into three camps on this issue.

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Slack-Fill Suit Dismissal Leaves Plaintiffs in Pain

IStock_000009666174MediumBy Sandra Hanian

Last month, Judge Sterling Johnson, Jr. of the Eastern District of New York dismissed a putative class action alleging that Pfizer misled consumers regarding the amount of Advil they were purchasing because of the size of Advil’s packaging. The plaintiffs alleged that the size of the product packaging led them to believe that the packages would be filled to capacity with pills, but they actually contained “excessive empty space” or non-functional slack-fill in violation of New York, Florida, and California state consumer protection laws. The plaintiffs alleged that they did not rely on the labels specifying the number of pills in each product at issue when making their purchasing decisions. 

The court rejected the plaintiffs’ claims, holding that, as a matter of law, it was not possible that Pfizer’s packaging could mislead a reasonable consumer when it clearly displayed the total pill-count on the label.  In so holding, the court noted that “[i]t defies logic to accept that the reasonable consumer would not rely upon the stated pill count” and that the plaintiffs did not and could not show that they did not receive the total number of pills that were listed on the packages’ labels.  Moreover, “the suggestion that [packaging] laws should cover [the plaintiffs’] failure to read an unambiguous tablet-count does not pass the proverbial laugh test.”

Fermin v. Pfizer Inc., No. 15-2133, 2016 WL 6208291 (E.D.N.Y. Oct. 18, 2016).