self-granted star ratings were textbook puffery where claimed features were general

Knowles v. Arris International PLC, No. 17-CV-01834-LHK, 2019
WL 3934781 (N.D. Cal. Aug. 20, 2019)
Plaintiffs brought a class action based on Arris’s alleged
failure to disclose defects with its SB6190 cable modem. After the court
certified a California class, Arris successfully won summary judgment.
First, latency defects didn’t make the modem unmerchantable
in violation of the Song-Beverly Act. “To be unmerchantable, a consumer good
must fail to possess even the most basic degree of fitness for ordinary use.” For
example, the California Court of Appeal has held that “[a] vehicle that smells,
lurches, clanks, and emits smoke over an extended period of time is not fit for
its intended purpose”; the Ninth Circuit read that to mean that complete
inoperability isn’t required if the defect “drastically undermined the ordinary
operation” of the product; a defect in a vehicle’s fuel system that required
more frequent refueling didn’t qualify.  Here,
although latency test results showed that the SB6190 Modem was milliseconds
slower than promised in laboratory test conditions, that didn’t show that the
model lacked a basic degree of fitness for ordinary use. The latency values
measured in the milliseconds and were at most barely perceptible, and there
were no safety concerns involved (in contrast to a car case in which a
reasonable juror “could conclude, for instance, that a rear-view camera whose
image spontaneously freezes without warning while a car is moving in
reverse…may present a hazardous or dangerous condition”).  For similar reasons, the failure to disclose
the latency issues didn’t violate consumer protection laws.
False advertising under the FAL, CLRA, and UCL: The
representations about the modem’s speed were either puffery or not false. The
relevant representations on the front of the box were “First Gigabit+ Cable
Modem” and “Speeds Up to 1.4 GBPS.” The back had a chart comparing the modem to
Arris’s other cable modem models, with five stars for features including “HD
Multimedia Streaming,” “Internet Browsing,” “Large file downloads –
music/videos,” and “High-Performance Online Gaming” compared to four and three
stars for other models.  The star
comparisons were “textbook” puffery. 
They were too laudatory and generalized to be falsified. Plaintiffs
didn’t explain how one would measure whether a given modem is “five stars” as opposed
to “four stars.”
As for “Speeds up to 1.4 Gbps,” that wasn’t a claim that the
modem “always” or “consistently” reaches speeds of 1.4 Gbps, and there was no
evidence that it couldn’t reach such speeds.  
And no reasonable consumer would understand Arris’s
statement on the box that the modem was “compatible” with Comcast to promise
that the consumer would receive 32 channels from Comcast; the box stated “32
Downstream Channels” and “Get what you pay for – supports Gigabit service
tiers.” The very bottom of the front of the box said: “Compatible with Major
U.S. Cable Providers, Including: Xfinity from Comcast / Time Warner / Cox.” That
didn’t promise 32 channels and resulting gigabit speeds on Comcast regardless
of a consumer’s Comcast service plan.  “Supports” Gigabit service tiers wasn’t a
guarantee, and the side of the box also stated that “Actual speeds will vary,
and are often less than the maximum possible. Upload and download speeds are
affected by several factors including, but not limited to: the capacity of, and
the services offered by your cable service provider or broadband service
provider ….”  No reasonable jury could
find a factual claim.

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