SAN JOSE, Calif. (CN) – A federal judge tossed two class actions that claimed Google misled smartphone owners about consistent 3G connectivity, finding that the plaintiffs could not pinpoint any such promises.
Mary McKinney and Nathan Nabors made only general assertions that Google had advertised that its flagship smartphone, the Nexus One, would provide consistent connectivity to 3G networks, U.S. District Judge Edward Davila explained.
McKinney and Nabors each sued Google and HTC Corp., on behalf of other consumers, for 10 causes of action, including breach of express and implied warranties, false advertising, and unfair competition.
“General assertions about representations or impressions given by defendants about the phone’s 3G capabilities are not equivalent to a recitation of the exact terms of the underlying warranty,” Davila wrote in dismissing both plaintiffs’ claim for breach of express warranty.
The judge noted that plaintiffs must identify the actual advertisement they relied on in believing they had been promised consistent 3G connectivity. McKinney identifies only an advertisement on two Google websites that she says has been “scrubbed” of all related promotional materials, but she does not state if these ads made assertions about 3G connectivity.
The only representation she specifically identifies comes from a T-Mobile sales representative who allegedly said the Nexus One had 3G speed and an unidentified source said it was “essential for web surfing and mail.”
But Davila said those allegations are really attacks on T-Mobile rates and service, which are pre-empted by a provision of the Federal Communications Act prohibiting state or local governments from regulating private companies’ cellphone rates.
Davila similarly dismissed claims for false advertisement, finding that McKinney and Nabors do not allege that their phones do not sometimes have 3G connectivity. They also do not allege that Google and HTC said the phone would have 3G connectivity for any specified length of time. They also does not identify a single advertisement in which HTC or Google discussed the phone and 3G wireless connections.
Even if the statements of a T-Mobile sales representative were attributable to the companies, they “would appear to be non-actionable puffery,” Davila wrote.
The remaining claims also failed to identify advertisements that promised consistent 3G connectivity. Davila dismissed all claims with leave to amend.