Top Defense Verdict: Punian v. The Gillette Co.

The consumer class action complaint, along with Carlson v. The Gillette Co., 14-cv-14201 (D. Mass., filed Nov. 19, 2014), alleged false advertising and breach of warranty claims under California and Massachusetts law. They sought millions of dollars in damages based on the alleged price premium paid for Duracell AA and AAA DuraLock batteries. The plaintiffs alleged that consumers were misled by advertising that the batteries were "guaranteed for 10 years in storage" despite their potential to leak.

The judges, U.S. District Judge Lucy H. Koh of California and U.S. District Judge F. Dennis Saylor of Massachusetts, dismissed both cases on defense motions that the plaintiffs had failed to state a claim.

"We viewed this an attempted end run around the law of warranty. These plaintiffs bought products with nothing wrong with them but said other batteries sometimes leaked," said Craig E. Stewart of Jones Day.

Firm colleague Darren K. Cottriel added, "What was novel was that the plaintiffs did not allege their batteries leaked, but only had the potential to leak."

The defense team asserted the claims were based on the mere possibility that a product may fail, attempting to supplant manufacturers' express warranties by claiming that non-disclosure of the potential that a mass-produced product may fail constitutes consumer fraud and false advertising.

Stewart

The possibility of premature failure is the reason products come with warranties, and consumers understand that the warranty is their protection in the event of failure, the defense team argued. Accepting the plaintiffs' theory would mean that virtually every manufacturer would be subject to a consumer class action on claims it might possibly fail.

Still, the potential for a big loss was ever present. "We realized we were litigating in a California court, which are often receptive to novel theories," Cottriel said. "We felt good about our argument, but we didn't think it was a sure thing."

"We were glad Judge Koh saw through what the claims were," Stewart said. "We had a very happy client, particularly because so many of these false advertising claims do get past the pleading stage."

- John Roemer