Monday, October 25, 2021

Court rejects "buy button" false advertising claim because consumer hasn't yet lost access to "purchased" content

Caudel v., 2021 WL 4819602, No. 20-cv-00848-KJM-KJN (E.D. Cal. Oct. 15, 2021)

Disagreeing with a case against Apple, the court here concludes that Amazon’s “buy” option that doesn’t give consumers ownership does not harm consumers who haven’t (yet) lost access to the content, rejecting the price premium theory for reasons that don’t make much sense to me.

The complaint alleges that Amazon charges around $10 less for renting electronic video content rather than purchasing it, but that the “buy” button doesn’t actually give consumers ownership, and that reasonable consumers would not agree to the higher fee if they understood that purchased video content might disappear from their digital libraries at some point in the future.

“[T]he majority of courts have consistently found economic injury when the products contain an actual defect and are allegedly worth less than what the consumer paid. But see Andino v. Apple, Inc., No. 20-01628, 2021 WL 1549667, at *2 (E.D. Cal. Apr. 20, 2021).” [No discussion; just a “but see” and a summary of the result.]  Although Caudel alleged that she “receive[d] a product worth less than [its actual] value,” there was just “a potential risk” of losing video content, which is “not concrete and particularized” as to her.

Me: But what about the price premium she alleged she personally paid? Why is that not concrete and particularized as to her, not to mention not just “imminent” but materialized in the money gone from her pocket? The implicit claim is that if there wasn’t an “actual defect,” then there can’t have been a price premium, but plenty of things can be worth less than you paid for them without an “actual defect.” That’s kind of the point of false advertising law generally, and certainly the “Made in the USA” cases make clear that deviation from what you were promised as part of the bargain is a potential cause of economic loss.

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