Isaac v. Ashley Furniture Industries, Inc. et al

Filing 15

Judge Richard G. Stearns: ORDER entered granting 9 Motion to Dismiss for Failure to State a Claim (RGS, law2)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 17-11827-RGS
ALEX ISAAC, on behalf of himself
and all others similarly situated
v.
ASHLEY FURNITURE INDUSTRIES, INC.,
and BARGAIN DISCOUNT MARKETS, INC.
(d/b/a BD’S FURNITURE)
MEMORANDUM AND ORDER
ON DEFENDANT ASHLEY FURNITURE’S
MOTION TO DISMISS
October 18, 2017
Plaintiff Alex Isaac, on behalf of a putative class of consumers, brought
this claim against defendants Ashley Furniture, Inc. (Ashley), and Bargain
Discount Markets, Inc. (BD), in Massachusetts Superior Court alleging
violations of the Massachusetts Consumer Protection Statute, Mass. Gen.
Laws ch. 93A. Defendants removed the case to the federal district court
pursuant to the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d)(2)(A).
The crux of Isaac’s Complaint is that Ashley advertised its “DuraBlend” sofa
line in a deceptive manner because the trademarked phrase “DuraBlend” and
other labeling on the furniture gave consumers, like Isaac, the false
impression that they were buying “a durable leather product,” when instead

“it peels and disintegrates.”1 Compl. at 1. The court will allow Ashley’s
motion to dismiss. 2
The product tag of the sofa in question, a copy of which is attached to
Isaac’s Complaint, says “DuraBlend blended Leather.” It then states, in all
capital letters: “57% POLYURETHANE, 25% COTTON, 17% LEATHER.” It
then adds (again in all capital letters) that “DURABLEND BLENDED
LEATHER IS A MATERIAL THAT CONTAINS GROUND, PULVERIZED,
SHREDDED, RECONSTITUTED OR BONDED LEATHER, IS NOT
WHOLLY THE HIDE OF AN ANIMAL, AND SHOULD NOT BE
REPRESENTED AS BEING 100% LEATHER.” In other words, the furniture
label itself makes clear that DuraBlend is a composite material that contains
only seventeen percent leather. Nonetheless, Isaac argues that the Ashley’s
purported marketing of DuraBlend as “durable blended leather,” and the fact

Ashley is the manufacturer of the DuraBlend line of sofas, while BD
is the Massachusetts-based distributor and store where Isaac purchased his
DuraBlend sofa in August of 2012. Compl. ¶¶ 6-7, 10.
1

Apart from the merits, defendant argues that Isaac’s claim is barred
by Chapter 93A’s four-year statute of limitations, see Mass. Gen. Laws ch.
20, § 5A. Plaintiff counters that the statute of limitations should be tolled
because he and other class members “could not reasonably have discovered”
that the upholstery on the furniture “was not durable and did not have the
strength of leather . . . until their furniture began to peel or disintegrate.”
Compl. ¶ 16. Because plaintiff’s claim fails on the face of the Complaint, the
court will not address the timeliness of the claim.
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that DuraBlend combines the words “durable and blended” would “support[]
a reasonable consumer’s belief that the DuraBlend upholstery is both
durable, and of similar quality, strength, and durability as leather.” Compl.
¶ 7.
To state a claim under Chapter 93A, it is axiomatic that “[t]he
objectionable conduct must attain a level of rascality that would raise an
eyebrow of someone inured to the rough and tumble of the world of
commerce.” Levings v. Forbes & Wallace, Inc., 8 Mass. App. Ct. 498, 504
(1979). The trumpeting of products through slogans, catch phrases, and
focus-grouped puffing by manufacturers and distributors striving to make
themselves heard in the din of a consumption-driven marketplace is a facet
of daily life to which the reasonable consumer is inured. As in-your-face as
Ashley’s promotion may be, it does not approach the kind of “immoral,
unethical, oppressive, or unscrupulous” conduct that is required for a
practice to be deceptive or unfair. Mass. Eye & Ear Infirmary v. QLT
Phototherapeutics, Inc., 552 F.3d 47, 69 (1st Cir. 2009). Furthermore, where
“no reasonable jury could find that the plaintiff’s reliance [on the
representation] was reasonable,” Massachusetts Laborers’ Health &
Welfare Fund v. Philip Morris, Inc., 62 F. Supp. 2d 236, 242 (D. Mass. 1999),

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a plaintiff’s subjective reliance on a company’s product representations or
slogans will not justify an inference that the representations were deceptive.
The phrase “DuraBlend” is the type of boilerplate product advertising
that courts have routinely held to be non-actionable under Chapter 93A and
other state consumer protection statutes because it amounts to mere
“puffery” that makes no explicit promise to consumers. See Mulder v. Kohl’s
Dep’t Stores, Inc., 865 F.3d 17, 22 n.5 (1st Cir. 2017) (noting that “advertising
of ‘amazing prices’ in most circumstances is non-actionable puffery [under
93A] because, standing alone, such advertisements do not make an explicit
promise or guarantee”); see also Vitt v. Apple Computer, Inc., 469 F. App’x
605, 607 (9th Cir. 2012) (agreeing with the district court that product
promotional phrases like “durable” and “high performance” are “generalized,
non-actionable puffery” under California’s consumer protection law).
Indeed, one federal district court in California has already considered,
and rejected, a similar complaint against Ashley and DuraBlend (albeit for
alleged violations of California’s consumer protection laws).
In sum, Defendants made no representations to [plaintiff]
regarding Ashley’s “DuraBlend” Furniture that might have led a
reasonable consumer to incorrectly believe that the furniture was
constructed with genuine leather . . . Having now been asked to
focus directly on the labels and with the benefit of a factual
context, it is clear that a jury would have nothing to do. The jury
would read the labels, as the Court has done, and inevitably
conclude that no reasonable consumer could be misled.
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Juan Alvarez, et al., v. Ashley Furniture Indus., Inc., et al., No. 2:16-cv00630-MWF-MRW, Dkt #106 at 1 (Order Granting Summary Judgment)
(C.D. Cal. Sept. 20, 2017). 3
While Isaac’s claim is not identical per se — he argues that the
DuraBlend name is deceptive because it suggests it is as durable as leather,
rather than made from genuine leather — the same principle articulated by
the California district court is persuasive: Isaac fails to state a claim that the
use of the name DuraBlend was deceptive.
ORDER
For the foregoing reasons, Ashley’s motion to dismiss is ALLOWED on
its own behalf and that of BD. 4
SO ORDERED.
/s/ Richard G. Stearns
__________________________

The court may take judicial notice of written orders and opinions by
state and federal courts, to the extent that they are germane, when evaluating
a motion to dismiss. See Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir.
1990) (“It is well-accepted that federal courts may take judicial notice of
proceedings in other courts if those proceedings have relevance to the
matters at hand”).
3

Isaac makes no effort to differentiate his claim against Ashley from
his claim against BD Furniture, the store where Isaac purchased the sofa in
question. The court will therefore dismiss sua sponte the 93A claim against
BD as well.
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UNITED STATES DISTRICT JUDGE

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