United States District Court, D. Connecticut
L.S., a minor, by P.S., his parent and next friend, on behalf of himself and all others similarly situated, Plaintiff,
WEBLOYALTY.COM, INC., GAMESTOP CORPORATION, and VISA INC., Defendants.
OMNIBUS RULING ON DEFENDANT WEBLOYALTY.COM,
INC.'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS
WEBLOYALTY.COM, INC. AND GAMESTOP CORPORATION'S MOTION
FOR JUDGMENT ON THE PLEADINGS
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.
case is on remand from the Second Circuit, which affirmed in
part and vacated in part this Court's opinion in L.S.
v. Webloyalty.com, Inc., 138 F.Supp.3d 164 (D. Conn.
2015). L.S. v. Webloyalty.com, Inc., 673 Fed.Appx.
100 (2d Cir. 2016). Specifically, the Second Circuit affirmed
dismissal of a number of Plaintiff L.S.'s claims, but
vacated this Court's dismissal of Plaintiff's (1)
Electronic Funds Transfer Act ("EFTA") claim
against Webloyalty.com, Inc. ("Webloyalty") and (2)
Connecticut Unfair Trade Practices Act ("CUTPA")
claim against Defendants Webloyalty and GameStop Corporation
("GameStop"). Id. These are the only
surviving claims from Plaintiff's second amended
complaint, [Doc. 91]. Webloyalty now moves for summary
judgment on the EFTA claim, [Doc. 147], and Webloyalty and
GameStop move for judgment on the pleadings on the CUTPA
claim, [Doc. 146].
Ruling resolves both motions. They are considered in that
PLAINTIFF'S EFTA CLAIM AGAINST WEBLOYALTY
following undisputed or indisputable facts are derived from
the parties' submissions pursuant to Local Rule 56(a) and
the affidavits and exhibits attached to the parties'
submissions. This section also borrows from prior rulings
where appropriate. All reasonable inferences have been drawn
in Plaintiff L.S.'s favor.
November 2009, Plaintiff purchased a video game from
Defendant GameStop's website. Doc. 147-5 ("Def.
56(a) Stmt.") ¶ 1; Doc. 152-17 ("Pl. 56(a)
Stmt.") ¶ 1. A banner for Defendant Webloyalty
appeared on the wepbage after Plaintiff completed his online
purchase, but the banner included a "Continue"
button that led Plaintiff to believe he was still in the
process of completing his GameStop purchase. Def. 56(a) Stmt.
¶ 2; Pl. 56(a) Stmt. ¶ 3. Clicking on the banner
led Plaintiff to Webloyalty's enrollment page
("Enrollment Page"). Def. 56(a) Stmt. ¶ 3; Pl.
56(a) Stmt. ¶ 3. The Enrollment Page "advertised a
$20 GameStop coupon and included references to GameStop
throughout its description of Webloyalty's membership
program. The page at issue required [Plaintiff] to enter the
last four digits of his debit card number and to enter and
verify his email. He apparently did so[.]" L.S. v.
Webloyalty.com, Inc., 673 Fed.Appx. 100, 103 (2d Cir.
asserts that Plaintiff was then shortly presented with an
acknowledgment page ("Acknowledgment Page"), [Doc.
147-3 ("Ack. Page")], and an email ("Join
Email"), [Doc. 147-4 ("Join Email")], to
confirm his enrollment. Def. 56(a) Stmt. ¶¶ 4, 5.
Both the Acknowledgment Page and Join Email indicate to an
enrollee that he was being given a thirty-day free trial, but
that he would be charged $12 per month after the trial unless
he cancelled his program membership. Ack. Page; Join Email.
Neither the Acknowledgment Page nor Join Email is an exact
reproduction of the Enrollment Page. Doc. 154 ¶¶ 2,
asserts Webloyalty violated EFTA by not providing a copy of
the electronic fund transfer authorization, i.e., the
Enrollment Page. Doc. 152 ("Pl. Mem.") at 14.
Webloyalty contends that the Acknowledgment Page and Join
Email satisfy the copy requirement under EFTA. Doc. 147-1
("Def. Mem.") at 10. This Court had considered the
parties' arguments before in this case, ruling in
Webloyalty's favor on its motion to dismiss
Plaintiff's entire complaint. L.S. v. Webloyalty.com,
Inc., 138 F.Supp.3d 164, 182 (D. Conn. 2015). However,
the Second Circuit vacated this Court's grant of the
motion to dismiss on this EFTA claim on the basis that this
Court considered the Join Email in its decision even though
it "was not referenced in [Plaintiff's] complaint,
not relied on in the course of the complaint's
allegations, and [Plaintiff] contends that he never saw
it." L.S., 673 Fed.Appx. at 107.
those circumstances, the Second Circuit faulted this Court
for considering the Join Email in deciding the motion then
before me, which was a motion to dismiss. "Before a
district court may evaluate the legal effect of documents not
integral to the complaint," the Court of Appeals said
disapprovingly, "it is obligated to convert the motion
to one for summary judgment and give the parties an
opportunity to conduct appropriate discovery and submit the
additional supporting material contemplated by Rule 56."
Id. (citation and internal quotation marks omitted).
That is the generally worded mandate of Rule 12(d). If on the
particular facts of this case this Court believed at that
earlier time that "the matter was ripe for summary
judgment" and "discovery on the relevant claims was
properly closed," further proceedings under Rule 12(d)
were not required and, in the Second Circuit's view, this
Court "could have exercised its authority to convert and
then evaluated whether Webloyalty's email sufficed to
meet with its statutory obligations in light of all the
undisputed facts." Id. "Since that was not
done," the Second Circuit says in conclusion, "we
vacate as to the grant of the motion to dismiss on
appellant's second claim that Webloyalty violated EFTA by
failing to provide him with a copy of his funds transfer
perforce acknowledge my Rule 12(d) transgression, I think it
fair to say that the Second Circuit's reversal on the
point was procedural in nature, not substantive. That much is
apparent from the Second Circuit's observation that this
Court had held the email's language satisfied
Webloyalty's EFTA requirements, to which the Court of
Appeals added: "We express no view as to the merits of
that determination, but merely reiterate" that Rule
12(d) required this Court to convert the motion from one to
dismiss to a motion for summary judgment. Id.
remand, the legal viability of Plaintiff's EFTA claim
against Webloyalty is again challenged by that Defendant,
this time in the form of a motion for summary judgment under
Summary Judgment: Standard of Review
motion for summary judgment shall be granted "if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The moving party must
"demonstrate the absence of any material factual issue
genuinely in dispute" to be entitled to summary
judgment. Am. Int'l Grp., Inc. v. London Am.
Int'l Corp., 664 F.2d 348, 351 (2d Cir. 1981)
(citing Heyman v. Commerce & Indus. Ins. Co.,
524 F.2d 1317, 1319-20 (2d Cir. 1975)) (internal quotation
marks omitted). All inferences and ambiguities must be viewed
in the light most favorable to the nonmoving party. Rogoz
v. City of Hartford, 796 F.3d 236, 245-46 (2d Cir.
order to defeat a summary judgment motion that is properly
supported by affidavits, depositions, and documents as
envisioned by [Rule 56], the opposing party is required to
come forward with materials envisioned by the Rule, setting
forth specific facts showing that there is a genuine issue of
material fact to be tried." Gottlieb v. Cty. of
Orange, 84 F.3d 511, 518 (2d Cir. 1996). The non-moving
party cannot "defeat the motion by relying on the
allegations in his pleading, or on conclusory statements, or
on mere assertions that affidavits supporting the motion are
not credible." Id. (citations omitted). In
other words, "[w]hen the moving party has carried its
burden under Rule 56, its opponent must do more than simply
show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). The nonmoving party
"must present specific evidence demonstrating a genuine
dispute." Gannon v. UPS, 529 Fed.Appx. 102, 103
(2d Cir. 2013) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). "An issue of fact
is genuine if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. A fact is
material if it might affect the outcome of the suit under the
governing law." Fincher v. Depository Tr. &
Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010)
(internal quotation marks and citation omitted); see also
Anderson, 477 U.S. at 248 ("Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted.").
EFTA Claim: Discussion
makes no new arguments in its motion for partial summary
judgment on Plaintiff's surviving EFTA claim. Def. Mem.
at 9; see also Doc. 153 ("Def. Reply
Mem."). Thus, the Court will first address the
evidentiary issue raised by the Second Circuit and then delve
into parties' arguments on the merits of Plaintiff's