Vizio Inc. was successful in its motion for summary judgment in a false advertising suit brought by Dr. Roger Larsen, who alleged in a putative class action in California federal court that the company deceived consumers about the refresh rate on its televisions.
Despite being advertised as having a refresh rate (a reference to the number of times per second an image is displayed on a TV screen) of 120 hertz, the Vizio set Larsen purchased had only a 60-hertz refresh rate, he said.
While video is currently not recorded at any more than 60 images per second on Vizio sets, Vizio uses a scanning backlight that flashes between two images in succession, effectively doubling the number of images displayed per second. This practice is not misleading, the company said, because its use of refresh rate refers only to images per second, not unique images per second. To convey this to consumers, Vizio’s promotional materials typically refer to the rate for its TVs as “120 hertz effective refresh rate” or state that the refresh rate is “enhanced with backlight scanning.”
At his deposition, Larsen was asked if he remembered the wording used to describe the television’s refresh rate when he purchased his TV in October 2014 from Amazon. He stated that if the web page had used the term “effective” refresh rate, he would have looked it up and found out what that meant. When asked, “[A]ssuming that the website said 120Hz effective refresh rate enhanced with backlight scanning, would you believe that promotion is misleading?” Larsen responded, “No.” Counsel for Vizio then asked, “And if you saw that text on Amazon and you purchased the TV, then it follows that you wouldn’t be harmed; is that correct?” Larsen replied, “Yes.”
Vizio moved for summary judgment, contending that the plaintiff’s claims for violation of Maine’s consumer protection statute, common-law fraud, breach of express warranty, negligent misrepresentation and undue enrichment failed because he could not demonstrate he was misled by the company’s representations about the refresh rate of his television.
U.S. District Court Judge Cormac J. Carney agreed.
“Individual reliance is an element of the [Maine statute], fraud, negligent misrepresentation, and breach of express warranty,” he wrote. “Dr. Larsen conceded at his deposition that, although he did not believe the Amazon.com webpage for his television had used qualifiers like ‘120Hz effective refresh rate enhanced with backlight scanning,’ if it had such qualifiers, he would not have found the representations of the refresh rate misleading. This concession is fatal to Dr. Larsen’s claims.”
The Amazon page did not state what Dr. Larsen thought it did, the court noted. Shortly before his deposition, the plaintiff printed a copy of the web page and it contradicted his recollection, advertising the television as having an effective refresh rate of 120Hz, not simply a 120Hz refresh rate.
In addition, the defendant provided copies of the web page as it existed on six different days during October 2014 (albeit not the actual date Larsen purchased his TV), and on all the dates the page described the television as having a “120Hz effective refresh rate enhanced with backlight scanning.”
“Thus, Dr. Larsen’s recollection of the contents of the Amazon.com webpage as it existed in October 2014 was incorrect,” Judge Carney wrote. “And because Dr. Larsen has conceded that 120Hz in conjunction with the qualifier ‘120Hz effective refresh rate enhanced with backlight scanning’ is not misleading to him, and he must have seen such a qualifier on the Amazon.com webpage, Dr. Larsen could not have been misled.”
Dismissing Larsen’s objections to the admissibility of the “damning copies” of the web pages from October 2014, the court said the content of the pages was directly relevant and that Vizio laid the necessary foundation for introduction of the evidence.
Larsen also argued that his reliance could be presumed if a jury decided Vizio’s representations were material, but the court was not persuaded. “[S]uch an inference of reliance always can be rebutted and Vizio has clearly done so here,” the court said, granting summary judgment in favor of the defendant.
To read the order in Larsen v. Vizio, Inc., click here.