Antitrust Law Daily Wrap Up, ADVERTISING—W.D. Wash.: Toothbrush maker may be liable for nondisclosure of defect, (Feb 26, 2014)

By Jody Coultas, J.D.

Purchasers of Philips Oral Health Care Inc.’s Sonicare toothbrush stated consumer protection law claims against Philips for allegedly failing to disclose a defect that rendered the toothbrush less effective than advertised, the federal district court in Seattle has held (Coe v. Philips Oral Health Care Inc., February 24, 2014, Pechman, M.).

Philips advertised that its Sonicare toothbrush would produce 31,000 brushstrokes per minute and would provide superior cleaning as compared to a manual toothbrush. The purchasers alleged that the metal shaft of the toothbrush, which controls the brush speed, became loose and reduced the number of brushstrokes and quality of the cleaning. Philips provided a two-year warranty for all Sonicare toothbrushes.

Standing. The purchasers had standing to assert claims against Philips, according to the court. To have standing, the purchasers needed to show that they were personally injured, not that an injury had been suffered by other, unidentified members of the class to which they belong and which they purport to represent. Allegations of overpayment for a product because it did not work as advertised could support standing. The purchasers alleged they paid too much for their Sonicare toothbrushes because Philips failed to disclose a known defect. Two of the purchasers alleged additional injury, in the form of expenses incurred in attempts to repair or correct the alleged defect. There was also no dispute that the purchasers would not have bought the toothbrushes but for the alleged omissions.

The court also held that the purchasers had standing to sue for models of toothbrushes they did not purchase. Courts have held that purchasers have standing to assert claims based on products he or she did not purchase where the products and alleged misrepresentations are substantially similar. The purchasers alleged that all Sonicare toothbrushes had the same shaft defect, which ultimately slowed the speed of the brush heads.

Rule 9(b). The purchasers sufficiently pleaded their fraud-based claims, according to the court. In fraudulent omission cases, the heightened pleading standard of Federal Rule of Civil Procedure 9(b) is relaxed. Based on the facts alleged by the purchasers, Philips had adequate notice of the facts underlying the claims. References to Philips’s United Kingdom website were sufficient to support the inference Philips knew of the defect.

Consumer protection claims. The purchasers stated Washington Consumer Protection Act, Connecticut Unfair Trade Practices Act, New York General Business Law, and New Jersey Consumer Fraud Act claims against Philips, according to the court.

The Connecticut and Washington purchasers adequately alleged an ascertainable loss based on expenses for the new toothbrush heads and overpayment for the original, defective toothbrush and that Philip’s allegedly deceptive acts caused the loss.

Philips argued that the New Jersey Consumer Fraud Act claim must be dismissed because the New Jersey purchaser did not first exercise the warranty. However, New Jersey recognizes an exception to the requirement that a plaintiff exercise the warranty where it would be futile because repair or replacement would not cure an underlying defect. The purchaser pleaded the exact situation contemplated in the exception.

The New York purchaser sufficiently alleged an injury from paying a premium for the Sonicare toothbrush. Philips’ argument that the claim should fail for failure to plead reliance was rejected as the New York General Business Law does not require a plaintiff to plead reliance.

The case is No. C13-518-MJP.

Attorneys: Robert I. Lax (Lax LLP) for Amy Coe. Antonia Stamenova-Dancheva (Sullivan & Cromwell) for Philips Oral Healthcare Inc.

Companies: Philips Oral Health Care Inc.

Cases: Advertising StateUnfairTradePractices WashingtonNews