Bad reviews as evidence of actual knowledge of defects

Partida v. Tristar Prods., Inc., 2021 WL 4352374, No. EDCV
20-436 JGB (KKx) (C.D. Cal. Aug. 5, 2021)

This is a putative consumer class action about pans
advertised as non-stick that allegedly weren’t (and also weren’t copper as
advertised). It was allegedly false to advertise “Cerami-Tech Non-Stick
Technology” so that “[n]othing sticks to the surface and cleanup is a breeze”
and that the pans were “Chip-resistant, Heat resistant,” and didn’t require
fats or oils to be nonstick. The pans allegedly lost their non-stick
performance within days or months of purchase. Tristar argued that its statements
that the pans were “durable and last a ‘lifetime’ ” were “nonactionable
puffery.” But even statements that “might be innocuous ‘puffery’ or mere
statement of opinion standing alone may be actionable as an integral part of a
representation of material fact when used to emphasize and induce reliance upon
such a representation.” This was a question of fact.

Plaintiffs also sufficiently alleged Tristar’s actual
knowledge of the alleged defects at the time of purchase, which the court found
required for their specific UCL, CLRA, and FAL claims. Although vague
allegations about consumer complaints may not suffice to allege awareness, the
complaint here listed “dozens” of complaints, including when and where they were
posted, and alleged that that 70% and 86% of consumer [reviews] on third-party
websites were negative. “Plaintiffs further allege that experts reported that
the Pans were not copper cookware, as advertised.” That was sufficient to
allege that Tristar was on notice: “when a significant percentage of product
reviews identify a problem, then the company that sells that product can
reasonably be deemed on notice of the issue, even if only a subset of consumers
chooses to leave a review.”

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