Monday, April 4, 2011

Northern District Certifies Product Defect/False Ad Action Against Acer America Corporation: Wolph v. Acer Am. Corp.

On March 25, 2011, Northern District Court Judge Jeffrey S. White granted plaintiff’s motion to certify a nationwide product defect/false advertising action against defendant Acer America Corporation in Wolph v. Acer Am. Corp., 2011 U.S. Dist. LEXIS 35003 (N.D. Cal. Mar. 25, 2011). Plaintiff’s action alleges that defendant marketed and sold certain notebook computers with insufficient memory to properly run Vista Premium, which came in the notebook computers pre-installed. See Wolph, 2011 U.S. Dist. LEXIS 35003, at 2. Plaintiff alleged claims under the CLRA, UCL, FAL and breach of express warranty.

The Court reasoned that plaintiff’s claims were appropriate for class adjudication because the core issue of the case – i.e. whether defendant’s computers lacked sufficient memory to run the Vista operating system – presented a common factual issue [See id., at 12-13] which would be typical for all purchasers. See id., at 21-22 (“the typicality of the claims at issue here arises from the question whether Acer sold notebook computers that were incapable of properly operating the Microsoft® Vista Premium operating system with which they were marketed, packaged and sold.”). Predominance was met because this issue, as well as related issues concerning defendant’s marketing, could be established based on common proof: 
Plaintiffs allege that the packaging for the notebooks misrepresented that the notebooks met the recommended system requirements for running Vista Premium and that the notebooks could effectively and adequately run with a Vista Premium operating system. (See FAC ¶ 160.) Plaintiffs contend that Acer made these misrepresentations on a label on the outside of the box, as well as a Windows Vista sticker on the notebook itself. (Mot. at 13; Pizzirusso Decl., Ex. 17 (filed under seal).) The statements made on the packaging and labels present common proof on the issues of materiality and falsity. Without deciding here the question whether any of these alleged misrepresentations were material, it is reasonable to infer that they were communicated to all class members because they were shown at the point of purchase. Brazil, 2010 WL 5387831 at *5. See Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 210 Cal. Rptr. 3d 741, 755 (2011) (recognizing materiality of label representations). Plaintiffs have identified other common sources of proof. Plaintiffs' experts have established mechanisms that purport to examine the existence of the alleged defect under out-of-the-box conditions to eliminate individualized user variables. (Alepin Decl. ¶¶ 52-69 (filed under seal).)
Plaintiffs also rely on Acer's benchmarking results, retailer return rates, consumer return surveys, customer inquiry databases and third party recommendations regarding Vista. (Pizzirusso Decl., Exs. 10-16 (filed under seal).) The Court concludes that Plaintiffs have presented a plausible class-wide method of proof. Thus, Plaintiffs have met their burden to show that common questions predominate.
See Wolph, 2011 U.S. Dist. LEXIS 35003, at 27-28.

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