MOUNT VERNON – Fifth District appellate judges affirmed St. Clair County Circuit Judge Stephen McGlynn in dismissing a class action complaint against Walgreens over the difference between 1,000 data bits and 1,024 bits.
The judges relied on a federal standard stating that “giga” and “G” represent powers of ten, not powers of two.
Plaintiff Brian O’Keefe sued Walgreens in March 2019, claiming its flash drives delivered less storage capacity than labels indicated.
His lawyer James Rosemergy of Clayton, Mo. wrote, “All defendant does is place an asterisk on the number of GBs advertised and extremely fine print on the back of its packaging that arbitrarily defines GB as one billion bytes.”
He proposed a class action for breach of contract, breach of good faith, consumer fraud, and deceptive practices.
Walgreens filed a motion to dismiss the complaint in June 2019.
It attached a notice that the National Institute of Standards and Technology published in 1998, specifying powers of ten rather than two.
The notice showed an example of a kilobit equaling 1,000 bits, not 1,024.
Walgreens attached the same standard from a guide the institute issued in 2008.
McGlynn dismissed the complaint last September.
O’Keefe appealed but didn’t argue any claim except consumer fraud.
Fifth District judges rejected that claim, finding Illinois consumer law doesn’t apply to actions that state or federal regulators authorized.
Justice Randy Moore quoted a statement of the national institute that using prefixes to represent powers of two is inappropriate.
“We agree with the circuit court that the NIST guidelines include an authorization by a regulatory agency with specific statutory authority for the use of the term ‘gigabyte’ to denote a billion bytes,” Moore wrote.
“Accordingly, even if the defendant’s use of the term ‘gigabyte’ to represent a billion bytes were deceptive, it falls within the safe harbor provision of the Consumer Fraud Act and is not actionable.”
Justices David Overstreet and Milton Wharton concurred.
David Sudzus of Chicago and Anthony Weibell of Palo Alto, Calif. represented Walgreens.
Tiffany Yiatras of Ellisville, Mo. represented O’Keefe along with Rosemergy.