No Fraud in Upgrade Pledge for Motorola Cliq


     SAN FRANCISCO (CN) – Motorola customers failed to show that they bought Cliq XT cellphones because of allegedly false promises for an Android operating system upgrade, a federal judge ruled.



     In a September 2011 class action, lead plaintiffs Elyse Wood and Jack Haught claimed that Motorola released its Cliq XT phone with Android version 1.5, although the 2.1 version was already available.
     They claimed Motorola made public statements in its online forums and Twitter account that it would soon upgrade the Cliq to version 2.1.
     Wood said she she never tried to return or exchange her Cliq because she bought it before she learned that Motorola planned to upgrade the Android operating system. Haught said in-store representatives told him about the forthcoming upgrade, and that information influenced him to buy the phone.
     Nearly a year later, however, Motorola shelved the upgrade plans, according to the complaint.
     U.S. District Judge Yvonne Gonzalez Rogers found Wednesday that the class failed to state a claim, dismissing the complaint entirely with leave to amend.
     Stated plans of an upgrade do not meet the threshold for violations of the Consumer Legal Remedies Act, the decision states.
     “Plaintiffs do not specify the characteristic and benefits Motorola represented the Cliq XT had that it did not have,” Rogers wrote. “Nor do plaintiffs specify the particular standard, quality, or grade Motorola represented that the Cliq XT was of, or the particular standard, quality, or grade Motorola the Cliq XT actually was. As pled, the court and the defendant are left guessing how exactly Motorola misrepresented the characteristics, benefits, standard, quality and/or grade of the Cliq XT.”
     Motorola also argued that the statute gives it 30 days to correct or remedy allegedly noncompliant goods. The class countered that rule applied only if they sought monetary damages, but it sought an injunction. The judge again sided with Motorola.
     “Because the complaint clearly alleges that the unfair or deceptive methods, acts or practices that plaintiffs seek to enjoin have stopped, and there is no suggestion that Motorola will, in the future, make misrepresentations about plans to upgrade the CLIQ XT mobile phones’ operating system, there is nothing to enjoin,” Rogers wrote.
     The claims of Unfair Competition Law violations also failed.
     “To state a cause of action for an ‘unlawful’ practice under the UCL, plaintiffs must allege the violation of some other law,” Rogers wrote. “Plaintiffs allege that this prong is satisfied because Motorola violated the CLRA. … Plaintiffs failed to state a CLRA violation, and therefore, plaintiffs cannot base their unlawful business practice allegations on a CLRA violation. As such, plaintiffs fail to state a claim for an ‘unlawful’ practice under the UCL.”
     Moreover the “conclusory allegations” of misrepresentation do not show “how the alleged misrepresentations constitute ‘unfair’ acts or practices under the UCL,” the decision states (emphasis in original).
     “As noted, neither plaintiff alleges that Motorola’s ‘promise’ to upgrade the CLIQ XT phones’ operating system induced him or her to purchase the phone,” Rogers wrote. “Only Haught alleges that Motorola’s ‘promise’ to upgrade influenced his decision not to return the phone; Wood on the other hand alleges that she would have tried to return or exchange the phone, but does not allege that these attempts would have occurred during the relevant return period. Plaintiffs do not allege that they were deceived by Motorola’s alleged misrepresentations, and as such, plaintiffs fail to state a claim under the fraudulent prong of the UCL, as well.”
     Though the court would not take notice of an alleged disclaimer about product statements on the Motorola website, it dismissed the false-advertising claim for lack of standing.
     In tossing the negligent misrepresentation claims, Rogers pointed out that the plaintiffs admittedly visited Motorola’s website only after buying the phones. “Therefore they could not have relied upon any false or omitted statements on Motorola’s website when they purchased the Cliq XT mobile phone,” Rogers wrote.
     The plaintiffs also failed to allege that Motorola had a duty to disclose facts, the court found.
     As the complaint does not show how Motorola benefited from its allegedly fraudulent or deceptive conduct, the unjust enrichment claim failed as well.
     In an amended complaint, Haught must go to extra lengths to prove standing since he is not a California resident and does not allege injury in California.
     “If facts exist that would support Haught’s standing to bring a claim under one or more of California’s consumer protection statutes, he may replead that claim,” Rogers wrote.
     The plaintiffs have 21 days to file the amended complaint.

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