Sunoco Gas False Advertising Case To Go Before Supreme Court

In its ads for Sunoco Ultra 93.5 and 94 octane, Sun Co. claimed that use of the more expensive high-octane gas led to greater engine power, acceleration and performance power. Sun, however, had conceded in previous litigation that the higher octane gas doesn’t provide those benefits.

The Federal Trade Commission had twice previously taken action against Sun for similar advertising, resulting in the corporation signing consent decrees to cease and desist from its alleged misconduct.

Sometime after the federal action, the class sought relief in Pennsylvania state court and filed suit under the UTPCPL alleging that Sun’s ads deceived them into thinking they would receive a benefit from using the higher octane gasoline.

The class moved to have the court certify a national class of consumers who purchased the high-octane gas. The trial court said it was bound by case law from certifying a national class in Pennsylvania. Philadelphia Court of Common Pleas Judge Stephen E. Levin also said that all the plaintiffs’ claims sounded in fraud, requiring individual inquiry, therefore precluding the use of the class action.

The plaintiffs appealed the decision and in September 1999, a three-judge Superior Court panel, with one judge dissenting, upheld Levin’s decision to deny class certification on fraud claims.

But the middle appeals court said that there were also false advertising claims which did not require individual inquiry and could therefore be handled as a class action. The decision reversed that part of Levin’s ruling.

Sun requested en banc reargument, which the Superior Court denied. The company appealed to the state high court, which agreed to hear the case.

“The majority opinion would permit class-wide recovery of damages by persons who themselves have suffered no injury as a result of the advertising at issue, so long as some other purchasers might have been misled,” the petition asserts. “In so doing, the majority opinion directly contradicts the language of the UTPCPL, as well as the Superior Court’s prior holdings. …”

The allocatur petition was filed by Jon A. Baughman, Nicole D. Galli and John A. Valentine, all of Pepper Hamilton in Philadelphia. Philadelphia lawyer Debora A. O’Neill represents the class along with Ann D. White of Jenkintown and New York attorney Edward A. Grossman.

Prior Decision

The Superior Court panel first disagreed with the lower court that a national class could not be certified in the commonwealth. The court said that the procedural guidelines were amended to provide guidance as to how other states could be included in Pennsylvania class actions.

In order for a group of similarly situated plaintiffs to be certified as a class, it must show that:

* The class is so numerous that joinder of all members is impracticable.

* There are questions of law or fact common to the class.

* The claims or defenses of the representative parties are typical of the claims or defenses of the class.

* The representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709.

* A class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

The trial court declined to certify the class because it found, among other things, the class did not meet the commonality requirements.

Common Claims