Antitrust Law Daily Wrap Up, ADVERTISING—ND Cal: Taser Not Liable For Failing to Advertise That Its Products May Be Illegal in California , (Jan 17, 2013)

By Jody Coultas, J.D.

Taser International, Inc. was not liable under the California consumer protection laws for allegedly misrepresenting the legality of its products, according to the federal district court in San Francisco (Chiko Katiki v. Taser International, Inc., January 15, 2013, Cousins, N.).

The purchaser bought a Taser C2 electronic control device (“ECD”) from Taser’s website after seeing a television show on Taser and visiting the company’s website. Based on Taser’s advertising, the purchaser allegedly believed that she could carry the ECD in her purse. However, ECDs are considered firearms under California law, which made carrying it loaded and in her purse in public and to and from school illegal without a permit to carry a concealed weapon.

Based on the alleged misrepresentations regarding the legality of carrying and using ECDs in California, the purchaser brought California Unfair Competition Law and False Advertising Law claims against Taser.

Standing

The purchaser’s allegations that she would not have bought the ECD had Taser been truthful were sufficient to satisfy the injury-in-fact requirement of Article III standing on a motion to dismiss, according to the court. In order to have standing, a plaintiff must plead an injury-in-fact caused by the defendant’s alleged conduct and redressable by the courts. The purchaser stated that she was misled by Taser’s false advertising, purchased her ECD based on the false belief that it was legal for her to carry and use it without a permit in California, and would not have purchased the ECD had she known the truth.

Injunction

Because the purchaser could not show a future or continuing harm, the court denied the request for an injunction against Taser. The purchaser sought to enjoin Taser from continuing to market and sell its products in California. Injunctive relief is only available where there is a real or immediate threat that the plaintiff will be wronged again. Although the purchaser allegedly faced criminal prosecution, there was no evidence of an actual and well-founded fear that the law will be enforced against her.

Particularity

The purchaser failed to meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b), according to the court. Because the purchaser alleged a course of fraudulent conduct, the pleadings must satisfy the particularity requirement of Rule 9(b). However, the purchaser did not specify which communications by Taser falsely advertised that the ECD was legal in California, when she viewed such advertisements, what exactly the advertisements said, and which communications she relied upon in making her decision to purchase her ECD.

The case is No. 12-cv-05519 NC.

Attorneys: Mark Todd Clausen (Law Office of Mark T. Clausen) for Chiko Katiki. Craig Allen Livingston (Livingston Law Firm PC) for Taser International, Inc.

Companies: Taser International, Inc.

Cases: Advertising CaliforniaNews