Judge Louis B. Butler, Jr. on Regulation
From Judgepedia
- Justice Butler authored the majority opinion, which concluded, over the vigorous dissents of Justices John P. Wilcox and David B. Prosser amongst other things, (1) that because the plaintiff cannot prove the specific type of white lead carbonate he ingested, he need only prove that the Pigment Manufacturers produced or marketed white lead carbonate for use during the relevant time period: the duration of the houses' existence; and (2) Once [the plaintiff] makes a prima facie case under either claim, the burden of proof shifts to each defendant to prove by a preponderance of the evidence that it did not produce or market white lead carbonate either during the relevant time period or in the geographical market where the house is located. The Majority further opined that, if relevant records do not exist that can substantiate either defense, “we believe that the equities of [white lead carbonate] cases favor placing the consequences on the [Pigment Manufacturers].”
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MAJORITY REASONING:
- (1) One "Plaintiff states that while she remembers seeing advertisements, printed materials and commercials about Pentium 4/P4 processors in personal computers, she cannot specifically remember any particular advertisement or statement. She based her decision to purchase the computer on the label Pentium 4/P4 which meant to her that the computer was faster than the Pentium III or PIII.” "Other named plaintiffs could not recall any specific advertisements, from any source, containing a specific statement made by Intel that the Pentium 4 microprocessor was faster than the Pentium III processor."
- (2) "[P]laintiffs can only identify one statement, the name “Pentium 4,” that was communicated to the entire class. Because this is indistinguishable from the use of the term “best,” a statement we found not actionable as puffery in Avery, we also find that the implicit representation inherent in the name Pentium 4 is mere puffery.
- (3) Our precedent disallowing such actions premised on puffery is based on the sound reasoning that no reasonable consumer would rely on such an implicit assertion as the sole basis for making a purchase. A reasonable consumer would not rely on it because there is nothing specific or explicit about the name “Pentium 4,” or even its alleged implicit meaning of “4 is better than 3” or “best,” that can be said to have a specific attribute other than the actual processor itself. One can say almost anything is the “best” because it is a mere suggestion, a belief, or an opinion. It is not, standing alone, a representation of fact. Though plaintiffs may have correctly felt that “4 meant better than 3,” it is merely, as plaintiffs call it, “implicit” that it was best.
- (4) No named plaintiff solely consulted the name “Pentium 4” before making the purchase. For example, plaintiff Donald Braddy consulted a Dell advertisement touting the Pentium 4's high performance as well as viewed different computers in retail stores before making his purchase on Dell's Web site
- (5) Plaintiffs mistakenly make much of their expert's opinion that the “performance” of any Pentium 4 can be compared to any Pentium III according to a single benchmark. This is an issue the parties dispute and, if this case were to go forward, would need to be resolved at trial. However, there is nothing in the “4 is better than 3” marketing formulation that presents more than a vague promise of something better. Notably, the word “performance” was not a word that was communicated to the entire class. As such, plaintiffs' theory requires vague suggestion upon vague suggestion: that “best” means “performance,” that “performance” means “speed,” and that “speed” can be tested for all P4s and P3s according to one benchmark.
- (6) "[W]e also note that a number of additional statements made by Intel are not actionable because no plaintiff was aware of these statements. Under Oliveira and its progeny, plaintiffs must prove that each and every consumer who seeks redress actually saw and was deceived by the statements in question."
- (7) Internal Intel documents also show that Intel was aware of the Pentium 4's inferiority on certain tests. Nevertheless, it is not apparent that Intel ever made any false public claims as to benchmarking. Further, plaintiffs do not argue that Intel made any uniform misrepresentation regarding clock speed, or falsely claimed that its product possessed a clock speed that it did not have. Intel merely asserted that its product was the highest performance microprocessor, a representation which the class members do not allege they all received in common.
