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L.S. v., Inc.

United States District Court, D. Connecticut

October 26, 2018

L.S., a minor, by P.S., his parent and next friend, on behalf of himself and all others similarly situated, Plaintiff,



         This case is on remand from the Second Circuit, which affirmed in part and vacated in part this Court's opinion in L.S. v., Inc., 138 F.Supp.3d 164 (D. Conn. 2015). L.S. v., 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, 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].

         This Ruling resolves both motions. They are considered in that order.


         A. Background

         The 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.

         In 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., Inc., 673 Fed.Appx. 100, 103 (2d Cir. 2016).

         Webloyalty 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, 3.

         Plaintiff 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., 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.

         In 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 authorization." Id.

         While I 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.

         On 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 Rule 56.

         B. Summary Judgment: Standard of Review

         A 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. 2015).

         "In 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.").

         C. EFTA Claim: Discussion

         Webloyalty 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 EFTA claim.

         1. Authenticity ...

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