Class certification was denied Monday in another potential class action, this time against Google’s sister company Nest. The customer alleged that Nest Labs Inc.’s Nest Learning Thermostats did not save costs as advertised. The revolutionary thermostat can be controlled remotely from smartphones and tablets, as one of the company’s programmable, self-learning, sensor-driven, Wi-Fi-enabled devices. Among other things, the plaintiffs claimed the company’s marketing materials misrepresented the fact that its thermostat will save consumers energy and money, alleging breach of express and implied warranty, breach of the implied warranty of merchantability, violations of California’s false advertising law and other claims.
But oftentimes when savings ‘up to’ a certain amount are advertised, proving that the advertising was deceptive is tricky. An allegation of savings falling short of the promised maximum, on its own, is not enough. Under California’s false advertising law, for example, the plaintiff must show that members of the public are likely to be deceived, from the vantage point of a reasonable consumer. Other claims, such as breach of express warranty, have higher thresholds (under California law, a plaintiff must allege: (1) the exact terms of the warranty; (2) reasonable reliance thereon; and (3) a breach of warranty that proximately caused the injury).
Nonetheless the claims were not good enough for class certification. U.S. Federal District Court Judge Beth Freeman ruled that the customer had failed to show a common group of people misled by this advertising. Class action requirements in federal court, pursuant to Federal Rule of Civil Procedure Rule 23, include that the potential class have the components of numerosity, commonality, typicality and adequacy of representation. Commonality, which was most likely at issue here, requires questions of law or fact common to the class. Thus, it is likely that different class members received different representations in different forms. The plaintiffs must now either amend their class or walk away.