Plaintiff Cites 2 Similar Cases in Memo Opposing Belkin's Motion to Dismiss

A defendant can't avoid liability "for a prominent deceptive representation on the front of a package with fine print on the back,” said plaintiff Dennis Gromov in a Friday memorandum in opposition to defendant Belkin’s motion to dismiss a false advertising case (docket 1:22-cv-6918) in U.S. District Court for Northern Illinois in Chicago.

Two almost identical cases involving power banks survived motions to dismiss in the same district, said the memorandum. In Miley vs. Belkin, involving the “exact same power banks” as in Gromov's suit, the court said Belkin didn't meet its burden on summary judgment because it didn’t support with facts that the product label reference to 10,000 mAh, in isolation, “can only be understood in one way and that the statement is true and not misleading.”

Belkin said Gromov’s lawsuit, alleging false advertising and breach of warranty, should be dismissed in its entirety without leave to amend because he didn't identify a misleading or deceptive act, said the company’s January motion to dismiss (see 2301300008).

Gromov of Vernon Hills, Illinois, identified a misleading or deceptive act violating the Illinois Consumer Fraud and Deceptive Business Practices Act, said the memorandum. It cited Geske v. PNY, where the court ruled “a practice is deceptive ‘if it creates a likelihood of deception or has the capacity to deceive.’”

Gromov alleges Belkin’s representations of the milliamp hours advertised on its power banks are “false and deceptive.” Packaging marketing the devices as 10,000 mAh give the impression that the power banks are capable of providing 10,000 mAh of charging. Customers bought the products at a premium, but the power banks “do not, and cannot, provide the represented amount of mAh,” said Gromov.

Belkin’s “slanted interpretation” of its mAh representation “cannot succeed on a motion to dismiss by providing an alternative interpretation of the deceptive language,” said the memorandum. In its motion to dismiss, Belkin said it “never represented” that the power device would deliver 10,000 mAh to his devices, saying the 10,000 figure refers to the capacity of the product’s internal battery.

The packaging instead says how many times a user can charge an iPhone 7 -- three times -- on a single power bank charge, based on internal testing, Belkin said. Most consumers would not understand the technical relationship between the number of charges and the amount of mAh, Gromov said, citing Geske: “Unlike an ingredient list on a package of cheese, there is no obvious connection between the number of charges and the amount of mAh.”

Gromov said Belkin’s argument relies partially on language on the back of the product packaging, “in microscopic print,” that gives “Cell Capacity” of 10,000 mAh, plus other specs, where "the complete phrase is far from clear.” In Miley, the court ruled “a defendant cannot avoid liability for a prominent deceptive representation on the front of a package with fine print on the back.”

The plaintiff has standing to assert class claims on behalf of different models of Belkin power banks because all the company’s models “are substantially similar, operate in the exact same way, and contain the exact same type of misrepresentation,” the memorandum said. Most courts have found standing to assert class claims regarding such similar products, it said, noting Supreme Court precedent allows plaintiffs to assert such claims because the claims of purchases of substantially similar models do not “implicate a significantly different set of concerns.”

Belkin’s mAh representations are deceptive because none of its power banks can deliver the advertised amount and instead deliver "far lower” than what’s advertised on the label, said Gromov. If he could trust the representation on Belkin’s power banks and they delivered the amount of mAh represented, he would buy them in the future, the memorandum said. But it's “impossible” for him to know whether product representations are accurate.