Ferreira v. Sterling Jewelers, Inc.

• Decision Date: 15 September 2015
• Docket Number: CIVIL ACTION NO. 13-13165-DPW
• Citation: 130 F.Supp.3d 471
• Parties: Emilia S. Ferreira, individually and behalf of all all others similarly situated, Plaintiff, v. Sterling Jewelers, Inc., d/b/a Jared The Galleria of Defendant.
• Court: U.S. District Court — District of Massachusetts

130 F.Supp.3d 471

Emilia S. Ferreira, individually and behalf of all all others similarly situated, Plaintiff,

v.Sterling Jewelers, Inc., d/b/a Jared The Galleria of Defendant.

CIVIL ACTION NO. 13-13165-DPW

United States District Court, D. Massachusetts.

Filed September 15, 2015

Thomas P. Sobran, Hingham, MA, for Plaintiff.

David G. Thomas, Jacqueline E. Tambone, James P. Ponsetto, Michael E. Pastore, Greenberg Traurig LLP, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK

, UNITED STATES DISTRICT JUDGE

In this putative class action, the remaining named plaintiff alleges that the defendant, a jewelry company, failed to provide gemstone treatment and special care disclosures in an appropriate location on its consumer website relating to the sale of treated gemstones, as required by regulations promulgated by the Federal Trade Commission ("FTC"). The plaintiff seeks relief under the Massachusetts consumer protection statute, Mass. Gen. Laws ch. 93A, § 9

, for the alleged harm caused to her—and to a putative class of individual Internet purchasers—by this failure to disclose. Before me are the parties' cross-motions for summary judgment as to the claims of the named plaintiff only. A number of motions to strike are presented regarding the summary judgment submissions.

I. BACKGROUND

The majority of the relevant facts are undisputed.¹ The defendant, Sterling Jeweler's, Inc., doing business as Jared The Galleria of Jewelry (collectively, "Sterling"), sells jewelry in brick and mortar stores and on the Internet. Emilia Ferreira, the remaining named plaintiff, purchased a "Precious Pet" emerald charm necklace engraved with the name of her dog, Bella, through Sterling's website on January 7, 2014.² She paid $114.99 plus sales tax of $7.19 and received the necklace by Federal Express about a week later. The necklace consists of a small sterling silver charm in the shape of a dog paw with a small, single emerald in the center. On the Sterling website, the emerald was described as a "genuine 2 millimeter round emerald." Ms. Ferreira asserts that Sterling misrepresented to her that the necklace contained a "natural" emerald, based on Sterling's use of the term "genuine." However, Ms. Ferreira acknowledged in her deposition that the word "natural" did not appear in the description of the emerald on any of the pages she consulted on the Sterling website.

At the time Ms. Ferreira purchased her necklace, she did not have any knowledge about treatments for emeralds, including oil or resin treatment. Ms. Ferreira now believes that her emerald was treated with "plastic" resins and polymers and therefore was not a "genuine" gemstone. The experts for both parties agree that the emerald in Ms. Ferreira's necklace was mined from the ground, rather than being synthetized or created in a lab. The parties also agree that the emerald at issue was treated with a polymer or a similar resin that is subject to special care requirements. They dispute, however, whether this treatment is or is not "permanent," whether it will require re-treatment, and whether and how the treatment impacts the value of the emerald.³

At the time of Ms. Ferreira's purchase, the main webpage for the necklace opened by default to the "overview" page for personalized jewelry, which did not have an emerald treatment disclosure. Similarly, gemstone treatment or special care disclosures did not appear on the description or solicitation pages for the necklace. Sterling did provide certain treatment disclosures on its website that could be accessed through the frequently asked questions ("FAQ") section. These FAQ included discussion about how to care for treated gemstone jewelry, and more particularly, color stone care, which explained to customers the various treatments that may or may not have been done to the gemstones, and stated that most treated gemstone jewelry could be cleaned with mild liquid detergent mixed with warm water. The FAQ would not have informed Ms. Ferreira whether the specific emerald in her charm had been treated, and did not distinguish between permanent and non-permanent treatments.⁴ In selecting her necklace and completing her purchase, Ms. Ferreira remained on the overview page and did not click on a link to the FAQ section of the website. As a result, she did not view any statements on the website concerning gemstone treatments or special care requirements.

Ms. Ferreira contends that Sterling did not comply with certain FTC regulations, 16 C.F.R. §§ 23.0 et seq.

, requiring jewelers to disclose to consumers at the time and place of purchase whether a natural gemstone has been subject to treatment, and that she was misled by the use of the term "genuine" to believe that her emerald was untreated and therefore more valuable than it was. Ms. Ferreira seeks to represent a putative class of individuals who similarly purchased natural gemstones, including diamonds, emeralds, rubies, and sapphires, through the Internet website of Sterling and its "doing business as" entities, and who allegedly paid an "artificially inflated purchase price" based on Sterling's misrepresentations and omissions. No class has yet been certified; thus only Ms. Ferreira's individual claims under chapter 93A and for unjust enrichment are the subject of the pending summary judgment motions.

II. DISCUSSION

Summary judgment is appropriate when, based on the pleadings, discovery, and disclosure materials in the record, "is there no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a), (c)

; see Adria Int'l Grp., Inc. v. Ferré Dev., Inc. , 241 F.3d 103, 107 (1st Cir.2001). A disputed fact will preclude summary judgment only if it has "the potential to affect the outcome of the suit under the applicable law," that is, it is material to the resolution of the case. Sanchez v. Alvarado , 101 F.3d 223, 227 (1st Cir.1996) (citations and quotation marks omitted). Cross-motions for summary judgment will be evaluated separately under this protocol. Bienkowski v. Northeastern Univ. , 285 F.3d 138, 140 (1st Cir.2002) ; see Mandel v. Bos. Phoenix, Inc. , 456 F.3d 198, 205 (1st Cir.2006).

A. Chapter 93A Claim

1.Unfair or Deceptive Act

The Massachusetts Consumer Protection Act, Mass. Gen. Laws ch. 93A, §§ 2

, 9(1), provides a private right of action to individual consumers who have been injured by "unfair or deceptive acts or practices in the conduct of any trade or commerce." Such acts or practices include those that would be considered unfair or deceptive under § 5(a)(1) of the Federal Trade Commission Act ("FTCA"), codified at 15 U.S.C. § 45(a)(1).⁵

See Mass. Gen. Laws ch. 93A, § 2(b) ; McDermott v. Marcus, Errico, Emmer & Brooks, P.C. , 775 F.3d 109, 122 (1st Cir.2014) (citing Slaney v. Westwood Auto, Inc. , 366 Mass. 688, 322 N.E.2d 768, 773 n. 8 (1975) ; Purity Supreme, Inc. v. Att'y Gen. , 380 Mass. 762, 407 N.E.2d 297, 301 (1980)

); VMark Software v. EMC Corp. , 37 Mass.App.Ct. 610, 642 N.E.2d 587, 595 (1994).

Ms. Ferreira principally asserts that Sterling violated FTC regulations promulgated pursuant to the FTCA by failing to provide gemstone treatment and special care disclosures on its website as directed by the regulations.⁶ See Guides for the Jewelry, Precious Metals, and Pewter Industries ("Jewelry Guides"), 16 C.F.R. §§ 23.0

, 23.1, 23.22, 23.23 (2015). Under 16 C.F.R. § 23.22, "[i]t is unfair or deceptive to fail to disclose that a gemstone has been treated" if the treatment is not permanent, the treatment creates special care requirements for the gemstone, or the treatment has a significant effect on the stone's value. See 16 C.F.R. § 23.1 ("It is unfair or deceptive to misrepresent the ... treatment ... of an industry product."). When a gemstone is sold on the Internet, "disclosure should be made in the solicitation for or description of the product" and "should be sufficiently clear and prominent." 16 C.F.R. § 23.1 (note 2), § 23.22 (note).⁷

It is undisputed that the treatment Ms. Ferreira's emerald received created special care requirements for the gemstone. Therefore, disclosure of the treatment was required under 16 C.F.R. § 23.22(b)

in conformity with the direction of note 2 to § 23.1 and the note to § 23.22.⁸ It is also undisputed that a treatment or special care disclosure was not provided on the particular webpages that Ms. Ferreira visited, including the description and solicitation webpages, when she purchased the emerald.

For the purposes of the summary judgment motions pending before me, Sterling is willing to assume—without conceding—that it engaged in an unfair or deceptive act giving rise to a claim under chapter 93A on this basis. Although on these facts, it seems likely that Sterling's website was not in compliance with FTC regulations, I need not interpret the meaning of the conditional terminology of the disclosure requirements (i.e., "should be") to resolve this issue with certainty, because I conclude that other elements of a chapter 93A claim are not satisfied here. Indeed, the question remains whether a judge should make such a decision in the first instance. See Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc. , 552 F.3d 47, 69 (1st Cir.2009)

( "Massachusetts leaves the determination of what constitutes an unfair trade practice to the finder of fact, subject to the court's performance of a legal gate-keeping function."), decision clarified , 559 F.3d 1 (1st Cir.2009) ; Iannacchino v. Ford Motor Co. , 451 Mass. 623, 888 N.E.2d 879, 888 & n. 17 (2008) ("when the injury alleged is purely economic, and there is a regulatory agency with relevant technical expertise and jurisdiction to provide relief for a problem that may affect many consumers, principles of primary jurisdiction may dictate that the agency ‘should have an opportunity to consider the claim prior to a judicial hearing’ " (citation omitted)). Rather, I turn to the question of injury, assuming for present...