On December 18, 2015, Judge Phyllis Hamilton of the Northern District of California issued a ruling certifying a California-only class in a case brought by HP customers who alleged their computers were not equipped with the promised wireless cards. See generally Karim v. Hewlett-Packard Co., No. 12-CV-5240, 2015 WL 9258100 (N.D. Cal. Dec. 18, 2015).
The ruling, along with Judge Hamilton’s previous certification-related opinion in the same case, provide useful guidance on the question of what the of exposure class members need to show in connection for an affirmation that is alleged to form part of the basis of the bargain for an express warranty.
HP had cited a number of cases for the proposition that plaintiff would not be able to show through common proof that the challenged statement formed a basis for each class member’s bargain. HP had previously cast a similar argument on reliance grounds, but Judge Hamilton ruled that a long line of cases requiring reliance (based on Williams v. Beechnut Nutrition, 185 Cal.App.3d 135 (1986)), had been abrogated by the enactment of section 2313. This time, HP recast its argument as one of “exposure.”
Judge Hamilton, relying on the analysis in Weinstat v. Dentsply Int’l, Inc., 180 Cal.App.4th 1213 (2010), held that while exposure is relevant, it does not require that the buyers must prove that they actually read the statement; instead … “it is sufficient for plaintiff to show that the statement was made available to them.” Because the plaintiff had limited the class to those who purchased computers (i) while the relevant language was on the website, (ii) using a customization feature available on the website, plaintiff “met its burden” of limiting the class to “purchasers to whom the representation was made available.”