Antitrust Law Daily Wrap Up, ADVERTISING—W.D. Wash.: Philips Oral Healthcare brushes off consumer fraud claims, (Oct 28, 2014)

By Greg Hammond, J.D.

Toothbrush manufacturer Philips Oral Healthcare Inc. has successfully evaded claims that the company engaged in false advertising regarding the life expectancy of certain products, in violation of the New Jersey Consumer Fraud Act (NJCFA). In granting Philips’ motion for partial summary judgment, the federal district court in Seattle determined that a complaining consumer failed to show a material misrepresentation or an ascertainable loss (Coe v. Philips Oral Healthcare Inc., October 23, 2014, Pechman, M.).

Background. Amy Coe, the only remaining named plaintiff in the instant putative class action, sought damages and equitable relief due to Philips’ allegedly defective Sonicare Diamond Clean, FlexCare, FlexCare+, Healthy White, EasyClean, and Sonicare for Kids powered toothbrushes and related replacement parts. The court previously denied class certification and granted summary judgment over Washington, Connecticut, and New York state law claims. Philips moved for partial summary judgment over the NJCFA claim.

To state a prima facie case under the NJCFA, a consumer must demonstrate: (1) unlawful conduct by defendant; (2) an ascertainable loss by plaintiff; and (3) a causal relationship between the unlawful conduct and the ascertainable loss. In addition, in a misrepresentation case under the NJCFA, either out-of-pocket loss or a demonstrated loss in value is sufficient to meet the ascertainable loss requirement. A plaintiff under the benefit-of-the-bargain theory must also show a reasonable belief about the product induced by a misrepresentation.

Misrepresentation. Coe argued that Philips falsely represented its toothbrushes would be free from defects, when they were defective in a way that caused them to degrade faster than consumers would expect. However, the court found that that she failed to produce any evidence that Philips represented a certain life expectancy or rate at which its brushes would degrade. Consequently, Coe’s NJCFA claim failed as a matter of law, as she failed to demonstrate a material misrepresentation related to the toothbrushes’ life expectancy.

Ascertainable loss. Even if Coe was able to show a material misrepresentation, her claim would have failed because she did not demonstrate an ascertainable loss. Specifically, the court noted that there was no evidence that Coe considered futility or design flaws when choosing not to invoke her warranty, and that her decision not to invoke the warranty, without evidence of futility, foreclosed the showing of loss required to bring her private claim under the NJCFA. Consequently, the motion for partial summary judgment was granted.

The case number is C13-518 MJP.

Attorneys: Robert I. Lax (Lax LLP) for Amy Coe. Antonia Stamenova-Dancheva (Sullivan & Cromwell) and Jeffrey M. Thomas (Gordon Tilden Thomas & Cordell LLP) for Philips Oral Healthcare Inc.

Companies: Philips Oral Healthcare Inc.

Cases: Advertising WashingtonNews