Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—3rd Cir.: Consumers fail to show injury in Brother toner cartridge suit, (Jun 30, 2016)

By Linda O’Brien, J.D., LL.M.

In an action by two consumers against a printer manufacturer for inadequately disclosing that a design feature of its printers indicated toner cartridge replacement before each cartridge provided its advertised page yield, the consumers failed to sufficiently demonstrate an ascertainable loss, the U.S. Court of Appeals in Philadelphia has ruled. Thus, the district court’s grant of summary judgment in favor of the printer manufacturer was affirmed (DiCuio v. Brother International Corp., June 29, 2016, Greenaway, J.).

Brother International Corporation is the U.S. subsidiary of Japanese electronics manufacturer, Brother Industries Ltd. Its products include printers, desktop computers, sewing machines, typewriters, and fax machines. Consumers Robert DiCuio and Angela Bryant purchased Brother printers in December 2008. Those printers used three-color toner cartridges. After a color cartridge was installed and used, the printers would signal "Toner Life End" with respect to the cartridge and would no longer print until the cartridge was replaced.

DiCuio and Bryant filed suit against Brother, alleging violations of the New Jersey Consumer Fraud Act (NJCFA). Specifically, the plaintiffs claimed that Brother designed its printers to signal "Toner Life End" before the color cartridges in the printer had run out of usable toner. The district court granted Brother’s motion for summary judgment, concluding that the plaintiffs did not sufficiently demonstrate injury-in-fact for Article III standing or an actionable loss under the state consumer fraud states. The plaintiffs appealed.

The plaintiffs presented no evidence of the average coverage of their used color cartridges to show an ascertainable loss, the appellate court found. The plaintiffs’ argument that they suffered an "actual loss" because they did not receive the expected page yield for their used color cartridges was rejected. The court noted that Brother’s advertising materials promised that each color cartridge would provide 1,500 color pages, assuming 5 percent average coverage ("expected page yield"). In order to demonstrate that they did not received the expected page yield, the plaintiffs needed to show the number of color pages printed with their used color cartridges and the average coverage for those cartridges. Maintenance reports provided by the plaintiffs showed the number of color pages printed by their used color cartridges, those reports did not contain information about the average coverage of those cartridges, the court explained.

The plaintiffs’ contention that the average coverage figures in the maintenance reports for their currently installed color cartridges was representative of their average coverage printing habits also was rejected as conclusory. The plaintiffs set forth no specific facts form which a jury could draw such an inference about the consistency of the plaintiffs’ average coverage printing habits. Thus, the district court did not err in finding that the plaintiffs failed to show the existence of a genuine dispute as to whether they received the expected page yield for their used color cartridges and suffered an ascertainable loss under the NJCFA, the court concluded.

The case is No. 15-2548.

Attorneys: Gary S. Graifman (Kantrowitz, Goldhamer & Graifman, P.C.) for Robert DiCuio. Lucas K. Hori (Rutman & Tucker) and Michael R. McDonald (Gibbons) for Brother International Corp.

Companies: Brother International Corp.

Cases: StateUnfairTradePractices DelawareNews NewJerseyNews PennsylvaniaNews