‘No Justification’ to Spare False-Ad Claims From Dismissal, Says Belkin

Plaintiff Dennis Gromov’s March 3 opposition to Belkin’s motion to dismiss his false advertising complaint (see 2303060037) provides “no justification” to save his claims from dismissal, said Belkin’s reply Wednesday (docket 1:22-cv-06918) in U.S. District Court for Northern Illinois in Chicago.

Gromov’s complaint alleges Belkin's representations of the milliamp hours advertised on its power banks are "false and deceptive." Packaging that markets the devices as 10,000 mAh give the impression the power banks are capable of providing 10,000 mAh of charging, he alleges. Customers bought the products at a premium, but the power banks don’t, and can’t, provide the “represented amount of mAh," he alleges.

In the record before the court are Belkin’s product packaging and product listings “that make clear” that the 10,000 mAh number refers to the power bank’s battery capacity, said Belkin’s reply. “This fact alone is enough to preclude any potential confusion or plausible claim of misrepresentation,” so the court should dismiss Gromov’s Illinois Consumer Fraud Act (ICFA) claim, it said.

Gromov’s express warranty claim against Belkin also is negated, said Belkin’s reply. Though Gromov contends Belkin promised a product that would deliver the amount of mAh listed on the product box, “the so-called promise actually was to deliver a device that contains a battery with a capacity of the mAh listed on the box,” it said. Gromov doesn’t dispute that the battery “contains a capacity of the mAh referenced,” it said.

Gromov contends his damage allegations are adequate “because he asserts that he bought an item that was less valuable than what he paid because he relied on a misrepresentation,” said the reply. This argument is “belied” by his claim of a misrepresentation not being “plausible,” it said: “There was no misrepresentation here.”

The court should also dismiss Gromov’s injunctive relief claim, said the reply. Gromov contends he would buy Belkin’s product again in the future, “if he could trust the representations concerning the mAh,” it said. He also asserts his injunctive relief claim should be safe from dismissal because, “even if he knows of the alleged deception, unnamed class members do not,” it said: “Neither of these arguments save his claim for injunctive relief.” Gromov’s “bald allegation” that he would buy Belkin’s products in the future “is simply not enough to create the imminent harm necessary to support an injunctive relief claim,” it said.