Class action against HP over printer cartridges to proceed

A federal magistrate refused on Friday to dismiss a class action against HP Inc. alleging the company secretly transmitted updates to printers that block consumers from using third-party ink and toner cartridges, forcing them to buy HP branded supplies.

Despite claims from HP that it disclosed the practice, U.S. Magistrate Judge Susan Van Keulen allowed most of the lawsuit to proceed based on allegations that HP "intentionally used a firmware update to disable printers that were using non-HP ink cartridges." She found that it sufficiently argued that the company made a statement that is "arguably contrary to the explanations" it provided for the cause of issues with its printers.

The lawsuit brought in federal court in San Jose challenged HP's business model of selling printers at a substantial discount with the intent to profit on the sales of supplies. It accused the company of improperly updating printers without user authorization to prevent the use of its competitors' products.

HP printers using third-party cartridges displayed an error message saying they had a "supply problem," which the complaint targeted as a misrepresentation to disguise HP's allegedly unfair business practice.

The Palo Alto-based company has pointed to disclosures that non-HP cartridges may not work on its printers as a security feature.

Van Keulen concluded that HP's online notices do not bar claims that it could have cheated consumers through unsolicited updates that rendered their printers incompatible with third party supplies. She noted that none of the plaintiffs visited any HP website that would notify them of the practice.

HP, in its motion to dismiss, largely relied on a ruling in an identical lawsuit it faced. A federal judge found in that case that the public disclosures at issue undermined arguments that HP's updates violated consumer protection laws.

Van Keulen found that the case before her is different because consumers were not appropriately notified that cartridges using a non-HP chip may not work. She agreed with them that they could have been misled by the error message stating that the printers had a "supply problem," suggesting that the third-party cartridges were broken.

"Instead, the transmission simply disabled the supply cartridges that had previously functioned satisfactorily and would have continued to function but for HP's transmission of the update," she wrote.

The judge also rejected arguments from HP that the lawsuit should be dismissed because consumers did not suffer any injuries. She emphasized allegations that they were forced to purchase more expensive HP-branded supplies, pay to dispose of unusable cartridges and buy other printers in some instances, among other costs that include the time and labor to research and fix issues.

Some of the claims alleging violations of anti-hacking laws and a statute barring the interference of consumers' personal property were dismissed with leave to amend. Mobile Emergency Housing Corp. v. HP, Inc., CV20-09157 (N.D. Cal., filed Dec. 17, 2020).

HP did not respond to requests for comment. It is represented by Samuel G. Liversidge, Ilissa S. Samplin and Joseph R. Rose of Gibson Dunn & Crutcher LLP.

The purported class is represented by San Mateo-based attorney Mark L. Javitch and Chicago-based attorney Thomas A. Zimmerman.

HP in 2019 settled for $1.5 million an identical lawsuit accusing it of displaying a false error message through a printer update when consumers tried to use third-party ink cartridges.