False Advertising? A Cautionary Tale

There are certain traits in some human beings that may be part of their DNA; like a person’s height or eye color.  These people, when old enough to understand the meanings of such words as “plaintiff”, “defendant”, “damages” and “deep pockets” fulfill their destiny and become litigious and take up the cause of suing for fun and profit. And what better deep pocket than Apple?  You may well ask.

Not long ago, a group of people who purchased an iPad decided that the amazing device wasn’t amazing enough for them, and filed a class action complaint against Apple entitled Baltazar v. Apple, Inc..

In the suit, the Plaintiff alleges fraud and deceptive advertising in a consistent marketing campaign based on Apple’s claims that reading an iPad is “just like reading a book.”  That claim is false, according to the initial complaint, because “books do not close when the reader is enjoying them in the sunlight or in other normal environmental conditions.” Upon further thought, the original complaint was amended to state that the plaintiff relied upon Apple commercials on television and the company’s web site. Getting into specifics, the TV commercial showed the use of the iPad in various places including outdoor locations such as a sidewalk café.  Also another commercial showed the iPad being used while attached to a car’s dashboard and a motorcycle’s gas tank. Both ads were false and misled the plaintiffs, who all tried to use the iPad outdoors with limited success.  A named plaintiff, John Browning, who purchased an iPad to use while attending his children’s outdoor soccer games, alleges that the device shut down after less than 20 minutes outdoors in 70-degree weather.  A bummer indeed.

In addition to false advertising, the suit – filed in a California federal court – also alleges fraud, misrepresentation, and breach of warranty.

Lesson: When a person shells out $500 for a gadget that the maker says will work outdoors, a person may become miffed when the expensive gadget doesn’t work outdoors.  Advertisers would do well to anticipate the disgruntled reactions of their customers when the product doesn’t fulfill the maker’s claims, implied or otherwise.  When creating a marketing campaign, advertisers should closely consider just what’s being said and implied in the presentation.  The plaintiffs claim that they relied upon the images of an iPad being used in various outdoor locations in the company’s advertisements, and that the product “does not live up to the reasonable consumer’s expectations created by Apple” in its advertising.  Not a laughing matter.



Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.

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