Antitrust Law Daily Wrap Up, ADVERTISING—Cal. App.: Tinkertoy purchaser unable to certify class against Hasbro, Inc., (Sep 30, 2014)

By Greg Hammond, J.D.

An online purchaser of Hasbro, Inc.’s Tinkertoy construction set was unable to obtain class certification against the toymaker for alleged false advertising and unfair trade practices. In affirming the lower court’s denial of class certification, the California Court of Appeals in Los Angeles determined that there were no predominant questions of fact (O’Brien v. Hasbro, Inc., September 29, 2014, Rothschild, F.).

Background. Christine O’Brien purchased a Tinkertoy set on Amazon.com. The packaging allegedly displayed five models made from Tinkertoy pieces, and refers to an “enclosed design guide.” However, she alleged that no design guide was actually enclosed with the set, and the models shown on the packaging could not be constructed with the pieces contained in the set. Hasbro produced uncontradicted evidence that it sold the set through only two authorized retailers, Sam’s Club and Toys “R” Us, and that some online resellers do not provide consumers with an image showing a disclaimer that states some of the pictures show pieces not included with the set. O’Brien filed a putative class action, alleging that Hasbro engaged in false advertising and unfair competition. The superior court denied O’Brien’s motion for class certification, and O’Brien appealed.

Class certification. To succeed on a motion for class certification, O’Brien was partially required to demonstrate a community of interest among the proposed class members, including predominant common questions of fact. However, the appellate court agreed with the lower court’s decision, finding that common issues of fact do not predominate in this case, because: (1) not all online consumers could see the part of the label regarding the “enclosed design guide,” and every set purchased from Toys “R” Us or a secondary retailer that obtained the toy from Toys “R” Us contained a design guide, and (2) not all online consumers could see the disclaimer portion of the label when purchasing the set online. Further, the court noted that O’Brien failed to explain how the depictions of the five models on the packaging were misleading, because she did not identify any way in which they were visually distinguishable from models that can be constructed with the pieces contained in the set.

The case number is B247434.

Attorneys: Henry H. Rossbacher and Jeffrey Alan Goldenberg (The Rossbacher Firm) for Christine O’Brien. Emil W. Herich and Dennis L. Wilson (Kilpatrick Townsend & Stockton) for Hasbro, Inc.

Companies: Hasbro, Inc.

Cases: Advertising StateUnfairTradePractices CaliforniaNews