continued desire to purchase TVs suffices for California standing

Julian v. TTE Technol., Inc., 2021 WL 810228, No.
20-cv-02857-EMC (N.D. Cal. Mar. 3, 2021)

Plaintiffs alleged false advertising of TTE’s TVs in
violation of California and New Jersey law; the court granted the motion to
dismiss but allowed leave to amend as to injunctive relief claims.

According to Plaintiffs, it is false or misleading for TTE to
market the televisions as having a “120Hz CMI effective refresh rate” when in
fact the televisions have a 60Hz refresh rate. Two of the four named plaintiffs
alleged:

• “As a result of [TTE’s] false and
misleading statements, Plaintiff…paid more for his [TTE] television than he
would have paid had [TTE’s] advertising and representations been truthful.”

• “Plaintiff…would like to
purchase a [TTE] television in the future if he knew he could trust their [sic]
refresh rate advertising. But, without a court ordering [TTE] to fix their
[sic] advertising, Plaintiff…has no way of knowing whether he can trust
[TTE’s] refresh rate advertising.”

• “As a result of [TTE’s] false and
misleading statements, Plaintiff…paid for a television that [TTE] misrepresented
as using technology and including technical capabilities it did not actually
have. Plaintiff would not have bought the television but for [TTE’s] refresh
rate (Hz) misrepresentations.”

• Plaintiff has experienced poor
picture quality when using the TTE television for, e.g., action movies, sports,
or video games.

Was this plausible? If plaintiffs wanted a 120Hz television
only, not a 60Hz television with poorer picture quality, TTE argued, then
“correcting TTE’s alleged advertising to 60Hz would not affect [their]
purchasing decisions.” But “the point of the injunctive relief is to prevent
TTE from engaging in false advertising so that Mr. Julian and Mr. Pacano can
rely … on TTE’s advertising in the future – i.e., so that they can decide
whether or not to purchase a television from TTE.” Second, it wasn’t clear that
they would never buy a TTE TV in the future. “It is not inherently
contradictory for Mr. Julian and Mr. Pacano to make both allegations (i.e., to
assert that they would not have bought the televisions or would have paid less
for the televisions had there been no false advertising).” The TVs weren’t
allegedly worthless if truthfully advertised.

TTE argued that there was no actual or imminent threat of
future harm because, now that the individuals know what is meant by “120Hz CMI
effective refresh rate,” they will not be deceived in the future: “merely
looking at the online specifications or product label would clear any
ambiguity.” Again, though, the harm was inability to rely on advertising. As
another court cited by the 9th Circuit has held, “A material
representation injures the consumer not only when it is untrue, but also when
it is unclear whether or not it is true.” A consumer need not check the fine
print and is not expected to look beyond misleading representations on the
front of a package to discover the small-print truth. And, in fact, plaintiffs
“could not know whether the TTE televisions were truly 120Hz or 60Hz without
purchasing them.”

But were they really likely enough to be on the market for a
TV for an actual or imminent threat of future harm? TVs aren’t like flushable
wipes in terms of repeat purchases. “[S]ome day” intentions for the future are
not sufficient to establish standing. The complaint’s current allegations
weren’t good enough without any factual allegations to “suggest a purchase in
the relatively near or forseeable future …, at least in the context where, as
here, the goods are not, e.g., consumable items that are bought on a repeat
basis …, but rather a durable good not typically purchased on a regular basis.”

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