Christmas ought to be the toy season, after all Suzy wants a dolly and Johnny wants a truck. But the plaintiff bar wants it to be season of toy litigation.  Fortunately, a California court recently refused to certify a proposed class of consumers who sued alleging that venerable Tinkertoys were falsely advertised.  See O’Brien v. Hasbro Inc., No. BC438958 (Superior Court, County of Los Angeles, CA).

Plaintiffs’ claim was that the packaging implied that the items pictured could be built with the parts contained in the package.  The court’s reasoning in rejecting the the claim under California’s Unfair Competition Law was interesting.  The court focused on the commonality issue, and whether the  plaintiffs could show through common proof that the entire class had been confused by the “Classic Tinkertoy Construction Set” packaging.

The evidence was that less than 100 consumers had ever complained to Hasbro about the issue. The court noted recent appellate decisions in which classes had been decertified when only a tiny percentage of the class actually had reported the alleged problem.

Even if traditional reliance is not an element of a claim, there is still going to be a requirement of injury.  If a class member is not deceived, then he or she has been injured.  And the fact that a tiny percentage of consumers claim to have been confused does not mean that plaintiffs can show on a common basis that all class members were deceived.

An interesting one to watch if it goes on appeal.