In In re Easysaver Rewards Litigation (S.D.N.Y. Aug. 13, 2010), the district court refused to dismiss a class action alleging breach of contract and fraud claims against an online retailer and the third party provider of a online rewards program. The court ruled that allegations by consumers that they were deceived into indicating assent to enrollment in the programs must be accepted as true at the motion to dismiss stage. The court concluded that the allegation that the consumers who signified assent were confused was plausible, and that the reasonableness of the consumers' "expectations about shopping on the internet and dealing with pop-up windows offering a thank you gift" could not be determined on the face of the complaint. Significantly, the court refused to consider the defendants' proffer of various documents that allegedly showed that the terms of the program had been clearly presented and that the consumers had affirmatively assented to enrollment, ruling that the consumers should have the opportunity to conduct discovery that might challenge the proffered proofs, including whether the various versions of the proffered documents correctly reflected the Web pages that were displayed to them when they undertook their transactions.

Contrary to the opinion in Easysaver, the U.S. Court of Appeals for the Fifth Circuit in Bott v. VistaPrint USA, Inc. (Aug. 23, 2010), summarily upheld the district court's dismissal of a class action suit brought by consumers whose credit cards were charged by an online Web loyalty program. In its unpublished per curiam ruling, the appeals court rejected the plaintiffs' arguments that they were "tricked into" enrolling in the programs and agreed with the lower court ruling reported at In re VistaPrint USA, Inc. (S.D. Tex. Aug. 23, 2010) that the Web pages on which the offers were made were not deceptive as a matter of law. The district court concluded that the disclosures of the program features "and other pertinent information are provided in a clear, prominent, and conspicuous manner. There are no contradictory messages, and some important disclosures are provided more than once. There is no allegation that the customer is directed to any webpages after the Shopping Essentials+ webpage. The Court's review of the webpages on which Plaintiffs' base their claims convinces the Court without reservation that, as a matter of law, the webpages are not deceptive."

In re Easysaver Rewards Litigation (S.D.N.Y. Aug. 13, 2010) Download PDF

Bott v. VistaPrint USA, Inc. (5th Cir. Aug. 23, 2010) (per curiam, unpublished), aff'ing , In re VistaPrint USA, Inc. (S.D. Tex. Aug. 23, 2010) Download PDF