False-Ad Consumer Class Action Should Be Dismissed, Says Belkin
Plaintiff Dennis Gromov’s fraud class action against Belkin for false advertising and breach of warranty should be dismissed in its entirety without leave to amend because he didn't identify a misleading or deceptive act, said the defendant's motion Friday (docket 1:22-cv-6918) to dismiss in U.S. District Court for Northern Illinois in Chicago.
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Gromov, of Vernon Hills, Illinois, alleged Belkin advertised power banks for mobile devices in a deceptive manner and the chargers don’t deliver the amount of power promised. Gromov asserted he “was forced to recharge the Pocket Power 10000 more often than he expected.” The device was advertised as delivering 10,000 milliamp hours (mAh) of power, which it “cannot, and never could, deliver,” said the complaint. Belkin “intentionally deceives consumers by misrepresenting the amount of power” its products can transfer to portable electronic devices, it said.
Belkin “never represented” that the power device would deliver 10,000 mAh to his devices, said the company, saying the 10,000 figure refers to the capacity of the product’s internal battery. The packaging instead says how many times a user can charge an iPhone 7 -- three times -- on a single charge, based on internal testing.
The plaintiff "fails to state a claim" under the Illinois Consumer Fraud and Deceptive Business Practices Act, said Belkin, and he failed to plausibly plead “that he was actually damaged or deceived, or that his alleged expectations were reasonable.” He can’t claim breach of express warranty because he failed to allege any warranty was breached, said the motion. A claim for unjust enrichment can’t be premised on a contract breach, said Belkin, saying the claim was based on the purported breach of an express warranty.
Gromov bought one model of Power Bank but brought the action based on all Belkin Power Bank products, said the motion. The claim for injunctive relief should also be dismissed because the plaintiff didn’t face a real and immediate threat of future injury, it said. The plaintiff bought a Power Bank for $25, and because he received what he paid for, he “was not injured, and his ICFA claim fails,” said the motion.
The court should grant Belkin’s motion to dismiss because the plaintiff lacks standing to bring his claims for violations of laws in other states and based on other Power Bank products that he didn’t buy, the defendant said. The plaintiff has no standing to assert claims for violations of laws in Florida, Massachusetts, Missouri, New Jersey, New York, North Carolina, Ohio, Washington and Wisconsin where he “neither reside[s] nor purchased products,” said the motion.