Michael Bott, et al v. VistaPrint USA Inc., et al

Filing

Michael Bott, et al v. VistaPrint USA Inc., et al

Doc. 0

Case: 09-20648

Document: 00511211937

Page: 1

Date Filed: 08/23/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20648 August 23, 2010 Lyle W. Cayce Clerk

M I C H A E L P. BOTT; DELORIS GORDON; LAUREL HUDSON; J O N A T H A N MOOREFIELD; SUSAN OLMSTED; PHILLIP PACETTI; R E N E E WEST; KEVIN WOOLLEY; ASHLEY MITCHELL; MILES-KEVIN BARON, Doing Business as Victory-Riders.com, P la in t if f s - A p p e lla n t s , versu s V I S T A P R IN T USA INC.; ADAPTIVE MARKETING LLC; V E R T R U E INC., D e fe n d a n t s -A p p e lle e s .

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:08-MD-1994

Dockets.Justia.com

Case: 09-20648

Document: 00511211937 Page: 2 No. 09-20648

Date Filed: 08/23/2010

B e fo r e DAVIS, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:*

P la in t iffs sued under the Electronic Funds Transfer Act, the Electronic C o m m u n ic a t io n s Privacy Act, the Massachusetts Unfair Trade Practices Act, a n d the common law, alleging that they were tricked into enrolling in certain m e m b e r s h ip programs when they used defendants' websites. The various act io n s were transferred to the district court a quo by the Judicial Panel on Multid is t r ic t Litigation. Defendants moved to dismiss under Federal Rule of Civil P r o c e d u r e 12(b)(6), asserting that their webpages were not deceptive as a matter o f law, because they contained sufficient disclosures such that no reasonable p e r s o n could be deceived. The district court agreed with defendants and dismissed. In a well-reas o n e d , detailed Memorandum and Order entered on August 31, 2009, the court h e ld that the subject webpages were not deceptive as a matter of law and that " p la in tiffs ' allegation regarding the deceptive nature of the webpages at issue is c le a r ly and unequivocally refuted by the webpages themselves . . . ." In re VistaP r in t Corp. Mktg. & Sales Practices Litig., No. MDL 4:08-MD-1994, 2009 U.S. D is t . LEXIS 77509, at *14 (S.D. Tex. Aug. 31, 2009) (Atlas, J.). The court prope r ly observed that [a] consumer cannot decline to read clear and easily understandable t e r m s that are provided on the same webpage in close proximity to t h e location where the consumer indicates his agreement to those t e r m s and then claim that the webpage, which the consumer has fa ile d to read, is deceptive. I d . at *20. In addition, the district court examined the claims made under each as-

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 09-20648

Document: 00511211937 Page: 3 No. 09-20648

Date Filed: 08/23/2010

s e r t e d cause of action and theory of recovery. The court's detailed analysis is c o m p e llin g in explaining that each claim is entirely without merit. W e have reviewed the briefs and applicable law and have consulted applica b le portions of the record. There is no error. The judgment is AFFIRMED, ess e n tia lly for the reasons stated by the district court.1

We decline plaintiffs' request that we take judicial notice of certain documents not presented to the district court.

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