August 23, 2010.
Michael Adam Berg, Esq., Jeffrey I. Carton, Peter N. Freiberg, Esq., Annette C. Rizzi, Meiselman, Denlea, Packman, Carton Eberz, P.C., White Plains, NY, William B. Federman, Federman Sherwood, Oklahoma City, OK, for Plaintiffs-Appellants.
Gregory Scott Coleman, Senior Attorney, Edward Caldwell Dawson, Esq., Yetter Coleman, L.L.P., Austin, TX, Richard A. Johnston, Esq., Attorney Wilmer, Cutler, Pickering, Hale Dorr, L.L.P., Boston, MA, Kimberly Louise McMullan, Richard Paul Yetter, Yetter Coleman, L.L.P., Houston, TX, Robert Allen Horowitz, Esq., Toby Sue Soli, Esq., Greenberg Traurig, L.L.P., New York, NY, Kim Bernard Battaglini, Greenberg Traurig, L.L.P., Houston, TX, A. Danner Frazer, Jr., Frazer, Greene, Upchurch Baker, Mobile, AL, for Defendants-Appellees.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:08-MD-1994.
Before DAVIS, SMITH, and HAYNES, Circuit Judges.
Plaintiffs sued under the Electronic Funds Transfer Act, the Electronic Communications Privacy Act, the Massachusetts Unfair Trade Practices Act, and the common law, alleging that they were tricked into enrolling in certain membership programs when they used defendants' websites. The various actions were transferred to the district court a quo by the Judicial Panel on Multidistrict Litigation. Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), asserting that their webpages were not deceptive as a matter of law, because they contained sufficient disclosures such that no reasonable person could be deceived.
The district court agreed with defendants and dismissed. In a well-reasoned, detailed Memorandum and Order entered on August 31, 2009, the court held that the subject webpages were not deceptive as a matter of law and that "plaintiffs' allegation regarding the deceptive nature of the webpages at issue is clearly and unequivocally refuted by the webpages themselves. . . ." In re Vistaprint Corp. Mktg. Sales Practices Litig., No. MDL 4:08-MD-1994, 2009 WL 2884727, at *4, 2009 U.S. Dist. LEXIS 77509, at *14 (S.D.Tex. Aug. 31, 2009) (Atlas, J.). The court properly observed that
[a] consumer cannot decline to read clear and easily understandable terms that are provided on the same webpage in close proximity to the location where the consumer indicates his agreement to those terms and then claim that the webpage, which the consumer has failed to read, is deceptive.
Id. at *6, 2009 U.S. Dist. LEXIS 77509, at *20.
In addition, the district court examined the claims made under each asserted cause of action and theory of recovery. The court's detailed analysis is compelling in explaining that each claim is entirely without merit.
We have reviewed the briefs and applicable law and have consulted applicable portions of the record. There is no error. The judgment is AFFIRMED, essentially for the reasons stated by the district court.
We decline plaintiffs' request that we take judicial notice of certain documents not presented to the district court.