CouponCabin LLC v. Does 1 through 10

Filing 87

OPINION AND ORDER: GRANTING IN PART AND DENYING IN PART 65 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM or, in the Alternative, MOTION for More Definite Statement by Defendants Cox Target Media, Inc., Internet Brands, Inc., Linfield Media, LLC, Savings.com, Inc., Sazze Inc. Count II is DISMISSED WITHOUT PREJUDICE, with leave to refile within 14 days of the date of this Order. Signed by Judge Theresa L Springmann on 6/8/2016. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
COUPONCABIN LLC,
Plaintiff,
v.
SAVINGS.COM, INC., et al.,
Defendants.

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CAUSE NO.: 2:14-CV-39-TLS

OPINION AND ORDER
This matter is before the Court on a Motion to Dismiss or, in the Alternative, a Motion
for a More Definite Statement [ECF No. 65] filed by the Defendants Savings.com, Inc., Linfield
Media, LLC, Cox Target Media, Inc., and Sazze, Inc. d/b/a DealsPlus, on January 15, 2016. For
the reasons stated in this Opinion and Order, the Court grants in part and denies in part the
Defendants’ Motion.

BACKGROUND
On February 7, 2014, the Plaintiff, CouponCabin LLC, filed a Complaint [ECF No. 1]
against ten unnamed defendants (Does 1–10) [ECF No. 1]; and on November 2, 2015, it filed an
Amended Complaint [ECF No. 28] adding the following Defendants: Savings.com, Inc., Cox
Target Media, Inc., Linfield Media, LLC, Internet Brands, Inc., and Sazze, Inc. d/b/a DealsPlus.
According to the Amended Complaint, the Plaintiff is a “leading provider of online, printable
and grocery coupons for more than 3,000 retailers and merchants, and provides more than 20,000
active and genuine coupons, coupon codes, discount offers or deals, and/or links to same . . .
through its website . . . [which] is available at no cost to the general public.” (Am. Compl. ¶¶ 1,
27.)

In 2013, the Plaintiff launched an investigation in response to “a marked increase in the
amount of its unique content appearing on a number of competing websites.” (Id. at ¶ 3.) The
investigation allegedly uncovered the existence of so-called “scraping programs,” that were
“systematically acquiring data from the [Plaintiff’s] website.” (Id. at ¶¶ 3–4 (describing
“scraping programs” as “computer programs that operate to electronically copy, retrieve or
otherwise acquire data and information from the websites of others with little or no human
interaction.”).) The Plaintiff also alleges that the investigation uncovered evidence of “manual
scraping,” described as “unauthorized and systematic copying, downloading, saving or other
misappropriation of . . . website data by human agents.” (Id. at ¶ 4.)
The Plaintiff claims that, since at least 2013, the Defendants have either manually
scraped or employed scraping programs “in order to download, copy and/or record, and/or
enable the republishing of . . . data from the [Plaintiff’s] website.” (Id. at ¶ 5.) Such practices
allegedly violate the Plaintiff’s Terms and Conditions, which appear on the Plaintiff’s website
and prohibit the “systematic retrieval (including by use or data mining, robots, or other
extraction tools) of data or other content from the [Plaintiff’s] website.” (Id. (quoting Ex. A.,
Pl.’s Terms and Conditions).)
As a result of the investigation, the Plaintiff hired a third-party security provider to
“implement[] technological safeguards and barriers” (Id. at ¶ 34), which included “block[ing] the
access of all traffic, including legitimate users, emanating from certain cloud computing
providers and internet service providers identified as being used particularly heavily by the
Defendants to conduct scraping activities.” (Id. at ¶ 35). The Plaintiff also “communicated with
each of the Defendants, other than Linfield Media, LLC, to demand that they cease and desist

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their data scraping, misappropriation of Coupon Content or data from the [Plaintiff’s] website.”
(Id. at ¶ 74.) However, according to the Plaintiff, “the Defendants knowingly and intentionally
circumvented [the Plaintiff’s] security measures in order to continue their data scraping
activities.” (Id. at ¶ 40.)
The Plaintiff asserts state and federal claims against the Defendants, including: (1) a
violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq.; (2) a violation of the
Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq.; (3) breach of contract; (4) trespass;
and (5) tortious interference. On January 15, 2016, Defendants Savings.com, Inc., Linfield
Media, LLC, Cox Target Media, Inc., and Sazze, Inc. d/b/a DealsPlus (collectively,
“Defendants”) filed a Motion to Dismiss or, in the Alternative, a Motion for a More Definite
Statement [ECF No. 65], along with an accompanying Memorandum in Support [ECF No. 66]
and exhibit (i.e., screenshots of the Plaintiff’s website) [ECF No. 66-1], arguing that the
Plaintiff’s Amended Complaint should be dismissed in its entirety for failure to state a claim;1 or
alternatively, that the Plaintiff must provide a more definite statement under Federal Rule of
Civil Procedure 12(e). On February 8, 2016, the Plaintiff filed a Response [ECF No. 69], and on
March 3, 2016, the Defendants filed a Reply [ECF No. 78].2 The Motion is now fully briefed and

1

The Defendants do not challenge the Plaintiff’s state claims for trespass and tortious interference
on the basis of Rule 12(b)(6); but instead, on the basis that a district court may decline to exercise
supplemental jurisdiction if “the district court has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367(c)(3); see also Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999)
(noting that established law of this circuit is that the “usual practice” is to dismiss without prejudice state
supplemental claims whenever all federal claims have been dismissed before trial).
2

On April 13, 2016, the Defendants filed a Notice of Recent Decision [ECF No. 79], indicating
that the Seventh Circuit affirmed Sgouros v. TransUnion Corp, No. 14 C 1850, 2015 WL 507584 (N.D.
Ill. Feb. 5, 2015), which the Defendants cite in their Memorandum. See Sgouros v. TransUnion Corp.,
817 F.3d 1029 (7th Cir. 2016).
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ripe for ruling.

DISCUSSION
I.

Rule 12(b)(6) Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

sufficiency of the complaint and not the merits of the suit. Gibson v. City of Chi., 910 F.2d 1510,
1520 (7th Cir. 1990). The court presumes all well-pleaded allegations to be true, views them in
the light most favorable to the plaintiff, and accepts as true all reasonable inferences to be drawn
from the allegations. Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir.
1995).
The Supreme Court has articulated the following standard regarding factual allegations
that are required to survive dismissal:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations
must be enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in
fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks, ellipsis,
citations, and footnote omitted). A complaint must contain sufficient factual matter to “state a
claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Twombly, 550 U.S. at 556).

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Additionally, pursuant to Rule 12(d), a motion to dismiss for failure to state a claim that
includes matters outside of the pleadings must be treated as a motion for summary judgment
under Rule 56. See, e.g., Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998). However, a
court is not required to convert a motion to dismiss to a motion for summary judgment if the
additional documents it considers are referenced in the complaint and are central to the claim.
Citadel Grp. v. Wash. Reg’l Med. Ctr., 692 F.3d 580, 591 (7th Cir. 2012). “Such documents may
permit the court to determine that the plaintiff is not entitled to judgment.” Reger Dev., LLC v.
Nat’l City Bank, 592 F.3d 759, 764 (7th Cir. 2010) (citing Hecker v. Deere & Co., 556 F.3d 575,
588 (7th Cir. 2009)). Because the Plaintiff’s website is referenced in the Complaint and is central
to the Plaintiff’s claim, the Court will consider the Defendants’ exhibit [ECF No. 66-1] in
conjunction with the pleadings.

A.

Computer Fraud and Abuse Act (CFAA) Claim (Count I)
The CFAA imposes both civil and criminal liability for the unauthorized access of

electronic data. 18 U.S.C. § 1030(a)(1–7). Of relevance here, an individual violates the CFAA if
he “intentionally accesses a computer without authorization or exceeds authorized access and
thereby obtains . . . information from any protected computer.” § 1030(a)(2); see Motorola, Inc.
v. Lemko Corp., 609 F. Supp. 2d 760, 766 (N.D. Ill. 2009) (“The elements of a section
1030(a)(2) violation . . . include (1) intentional access of a computer, (2) without or in excess of
authorization, (3) whereby the defendant obtains information from the protected computer.”).
The CFAA does not define “without authorization”; although it does define “exceeds authorized
access,” as “to access a computer with authorization and to use such access to obtain or alter

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information in the computer that the accesser is not entitled so to obtain or alter.” 18 U.S.C.
§ 1030(e)(6).
In seeking dismissal, the Defendants note that liability under § 1030(a)(2) is triggered by
the unauthorized access of electronic data—not by the unauthorized use of such data. Def.’s Br.
7–9 (citing Bittman v. Fox, 107 F. Supp. 3d 896, 900–901 (N.D. Ill. 2015) (“The statutory
purpose of the CFAA is to punish trespassers and hackers.”), CollegeSource, Inc. v.
AcademyOne, Inc., Civil Action No. 10-3542, 2012 WL 5269213, at *14 (E.D. Pa. Oct. 25,
2012) (“The CFAA protects against unauthorized access rather than unauthorized use”), and
Koch Indus., Inc. v. Does, No. 2:10CV1275DAK, 2011 WL 1775765, at *8 (D. Utah May 9,
2011) (noting that “[a] majority of courts have concluded” that claims of unauthorized use “lie
outside the scope of the CFAA.”). According to the Defendants, because the Plaintiff alleges the
“scraping” of electronic data that is publicly accessible, it is attempting to hold the Defendants
liable for the unauthorized use of electronic data.
The Plaintiff counters, in essence, that liability turns on the Court’s interpretation of the
term “without authorization”—and in particular, whether a party acts “without authorization”
when permission to access a public website has been affirmatively restricted or revoked. Recall
that in the Amended Complaint, the Plaintiff claims that it undertook affirmative steps to restrict
and/or revoke the Defendants’ access to its website by “block[ing] the access of all traffic,
including legitimate users, emanating from certain cloud computing providers and internet
service providers identified as being used particularly heavily by the Defendants to conduct
scraping activities” and by “communicat[ing] with each of the Defendants, other than Linfield
Media, LLC, to demand that they cease and desist their data scraping, misappropriation of

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Coupon Content or data from the [Plaintiff’s] website.” (Am Compl. ¶¶ 35, 74); see also id. at
¶ 40 (alleging that “[s]ometime after [the Plaintiff] blocked the Defendants from accessing the
[Plaintiff’s] website, the Defendants knowingly and intentionally circumvented [the Plaintiff’s]
security measures in order to continue their data scraping activities.”).
Because the CFAA does not define “authorization,” the Court must give the term its
“‘ordinary and plain meaning.’” United States v. Patel, 778 F.3d 607, 613 (7th Cir. 2015)
(quoting Sanders v. Jackson, 209 F.3d 998, 1000 (7th Cir. 2000) (noting that “[w]e frequently
look to dictionaries to determine the plain meaning of words, and in particular we look at how a
phrase was defined at the time the statute was drafted and enacted.”)). The Oxford English
Dictionary defines “Authorization” as “[t]he action of authorizing a person or thing” or “formal
permission or approval.” Authorization, oed.com,
http://www.oed.com/view/Entry/13351?redirectedFrom=authorization#eid (last visited June 7,
2016). Moreover, the term, “authorize,” ordinarily means “to give official permission for or
formal approval to (an action, undertaking, etc.)” or “to approve, sanction.” Authorize, oed.com,
http://www.oed.com/view/Entry/13352?redirectedFrom=authorize#eid (last visited June 7,
2016). Therefore, based on the ordinary and plain meaning of “authorization,” to act “without
authorization” is to act without formal permission or approval.
A review of case law shows that several district courts have adopted a similar
interpretation of “without authorization” when confronting nearly identical facts. For example, in
Craigslist Inc. v. 3Taps Inc., 964 F. Supp. 2d 1178 (N.D. Cal. 2013), a defendant accessed the
plaintiff’s public website even after the plaintiff sent cease-and-desist letters and blocked the
defendant’s IP addresses. Id. at 1180–81. In finding that the defendant acted “without

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authorization” under the CFAA, the court explained that although the plaintiff “gave the world
permission (i.e., ‘authorization’) to access the public information on its public website . . . it
rescinded that permission for [the defendant]. Further access by [the defendant] after that
rescission was ‘without authorization.’” Id. at 1184; see also Facebook, Inc. v. Grunin, 77 F.
Supp. 3d 965, 973 (N.D. Cal. 2015) (finding that a defendant acted “without authorization”
under the CFAA when he continued to access Facebook’s site, even after Facebook
“implemented a complete access restriction by sending [the defendant] two cease-and-desist
letters and by taking technical measures to block his access.”); Sw. Airlines v. Farechase, 318 F.
Supp. 2d 435, 439–40 (N.D. Tex. 2004) (finding that a plaintiff plausibly alleged a CFAA claim
when Southwest “directly informed” the defendant that its scraping activity violated the Use
Agreement on Southwest’s website, which was “accessible from all pages on the website,” as
well as via “direct repeated warnings and requests to stop scraping.”) (internal quotation marks
and citation omitted); cf QVC, Inc. v. Resultly, LLC, —F. Supp. 3d—, 2016 WL 521197, at *13
(E.D. Pa. Feb. 10. 2016) (noting that, in determining whether the defendant acted “without
authorization,” the “relevant question is not whether [the defendant] was granted permission to
access the information on QVC.com, but whether that authorization was ever rescinded or
limited in a way that would put [the defendant] on notice that it was not authorized to access
information it was otherwise entitled to access.”).
Guidance as to the meaning of “without authorization” is also found in CFAA cases
involving employer-employee relationships. Notably, in International Airport Centers, L.L.C. v.
Citrin, 440 F.3d 418 (7th Cir. 2006), the Seventh Circuit found that an employee acted “without
authorization” despite the absence of any “hacking” or other techniques aimed at penetrating a

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secure computer or network on the part of the employee. Id. at 420 (finding that even though an
employee was authorized to use his employer’s laptop in a general sense, the defendant’s
“authorization to access the laptop terminated when, having already engaged in misconduct and
decided to quit . . . he resolved to destroy files that incriminated himself and other files that were
the property of his employer, in violation of the duty of loyalty that agency law imposes on an
employee.”) (citation omitted); cf. LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1133–34 (9th
Cir. 2009) (“[A] person uses a computer ‘without authorization’ . . . when the person has not
received permission to use the computer for any purpose (such as when a hacker accesses
someone’s computer without any permission), or when the employer has rescinded permission to
access someone’s computer and the defendant uses the computer anyway.”)
Thus, given the “ordinary and plain meaning” of “authorization,” coupled with the case
law described above, the Court is persuaded that CFAA liability may exist in certain situations
where a party’s authorization to access electronic data—including publicly accessible electronic
data—has been affirmatively rescinded or revoked. By alleging that the Defendants knowingly
and intentionally circumvented the Plaintiff’s security measures after the Plaintiff blocked access
from certain cloud computing/internet service providers and communicated with the Defendants
by demanding that they cease and desist scraping-related activities, the Plaintiff has pled enough
facts to survive dismissal. The Motion to Dismiss, as it relates to Count I, is denied.

B.

Digital Millennium Copyright Act (DMCA) Claim (Count II)
Next, the Plaintiff alleges that the Defendants violated the DMCA, 17 U.S.C. § 1201 et

seq., which provides both civil and criminal liability “‘to protect [copyright owners’] works from

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piracy behind digital walls such as encryption codes or password protections.’” Microsoft Corp.
v. AT&T Corp., 550 U.S. 437, 458 (2007) (quoting Universal City Studios, Inc. v. Corley, 273
F.3d 429, 435 (2d Cir. 2001)). Of relevance here, the DMCA contains three provisions aimed at
combating the circumvention of technical measures implemented by copyright owners: (1)
§ 1201(a)(1)(A), which prohibits “circumvent[ing] a technological measure that effectively
controls access to a work protected under [the Copyright Act]”; (2) § 1201(a)(2), which prohibits
trafficking in technology that circumvents a technological measure that “effectively controls
access” to a copyrighted work; and (3) § 1201(b)(1), which prohibits trafficking in technology
that circumvents a technological measure that “effectively protects” a copyright owner’s right.
Based on the briefing, the Plaintiff appears to be alleging a DMCA claim under sections
1201(a)(1)(A) and 1201(a)(2). In Chamberlain Group v. Skylink Technologies, Inc., 381 F.3d
1178 (Fed. Cir. 2004), the Federal Circuit found that a plaintiff alleging a violation of § 1201(a)
must prove the following:
(1) ownership of a valid copyright on a work, (2) effectively controlled by a
technological measure, which has been circumvented, (3) that third parties can
now access (4) without authorization, in a manner that (5) infringes or facilitates
infringing a right protected by the Copyright Act, because of a product that (6) the
defendant either (I) designed or produced primarily for circumvention; (ii) made
available despite only limited commercial significance other than circumvention;
or (iii) marketed for use in circumvention of the controlling technological measure.
A plaintiff incapable of establishing any one of elements (1) through (5) will have
failed to prove a prima facie case. A plaintiff capable of proving elements (1)
through (5) need prove only one of (6)(I), (ii), or (iii) to shift the burden back to
the defendant. At that point, the various affirmative defenses enumerated
throughout § 1201 become relevant.
381 F.3d 1178, 1203 (italics omitted) (on appeal from the Northern District of Illinois and
applying Seventh Circuit law); see also Storage Tech. Corp. v. Custom Hardware Eng’g &
Consulting, Inc., 421 F.3d 1307, 1318 (Fed. Cir. 2005) (same). To “‘circumvent a technological
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measure’ means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to
avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of
the copyright owner.” § 1201(a)(3)(A). Further, “a technological measure ‘effectively controls
access to a work’ if the measure, in the ordinary course of its operation, requires the application
of information, or a process or a treatment, with the authority of the copyright owner, to gain
access to the work.” § 1201(a)(3)(B).
Notably, in Chamberlain, a violation of § 1201(a) requires a plaintiff to show that “the
access resulting from the circumvention of the technological measure [was] in a manner that
‘infringes or facilitates infringing a right protected by the Copyright Act.’” Nordstrom
Consulting, Inc. v. M&S Techs., Inc., No. 06 C 3234, 2008 WL 623660, at *8 (N.D. Ill. 2008)
(quoting Chamberlain, 381 F.3d at 1203). Thus, “[a] copyright owner seeking to impose liability
on an accused circumventor must demonstrate a reasonable relationship between the
circumvention at issue and a use relating to a property right for which the Copyright Act permits
the copyright owner to withhold authorization.” Chamberlain, 381 F.3d at 1204. Chamberlain’s
so-called “infringement nexus requirement” has been adopted by several courts, including
district courts in this Circuit. See, e.g., Nordstrom, 2008 WL 623660, at *8; Agfa Monotype
Corp. v. Adobe Sys., 404 F. Supp. 2d 1030, 1034–35 (N.D. Ill. 2005); accord Universal City
Studios, 273 F.3d at 435 (explaining that Congress enacted the DMCA to help copyright owners
protect their works from piracy); but see MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d
928, 948–52 (9th Cir. 2010) (rejecting Chamberlain and finding that only an incidental relation
must exist between circumvention and copyright infringement).
The Defendants urge the Court to adopt Chamberlain, arguing that dismissal is

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appropriate because the Plaintiff fails to allege a sufficient nexus between the circumvention at
issue and copyright infringement. Alternatively, the Defendants argue that the Plaintiff fails to
allege facts demonstrating that a copyrighted work was “effectively controlled” by a
technological measure.
Notwithstanding the potential application of Chamberlain’s “infringement nexus
requirement,” dismissal is appropriate here because the Plaintiff has not pled sufficient facts to
show that its copyrighted work was “effectively controlled” by a technological measure. Again,
a technological measure effectively controls access to a work “if the measure, in the ordinary
course of its operation, requires the application of information, or a process or a treatment, with
the authority of the copyright owner, to gain access to the work.” § 1201(a)(3)(B). Although the
Plaintiff alleges that it implemented “technological safeguards and barriers” to control access to
its website (Am. Compl. at ¶ 34), it also alleges that the Defendants continued their scraping
activity by accessing the Plaintiff’s website “using a variety of servers and/or internet service
providers throughout the United States and/or from outside the United States” (id. at ¶ 44). In
other words, even after the Plaintiff’s implementation of “technological safeguards and barriers,”
its website remains accessible to users of servers and/or internet service providers that have not
been blocked by the Plaintiff’s technology. See Lexmark Int’l, Inc. v. Static Control
Components, Inc., 387 F.3d 522, 547 (6th Cir. 2004) (“Just as one would not say that a lock on
the back door of a house ‘controls access’ to a house whose front door does not contain a lock
. . . it does not make sense to say that [§ 1201(a)] of the DMCA applies to
otherwise-readily-accessible copyrighted works.”); Theresa M. Troupson, Yes, It’s Illegal to
Cheat a Paywall: Access Rights and the DMCA’s Anticircumvention Provision, 90 N.Y.U. L.

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Rev. 325, 339 (2015) (“[A] technological protection measure must serve as a gatekeeper for all
access; after all, a locked back door can hardly be said to effectively control access to a house if
its front door is wide open.”). Absent allegations that a user of the Plaintiff’s website is required
to apply “information or a process or treatment” to gain access (e.g., by providing a password),
the Court is not convinced that the DMCA covers the alleged conduct at issue.
Accordingly, Count II will be dismissed without prejudice, with leave to refile if the
Plaintiff is able to successfully amend its complaint consistent with this Order within 14
days of the date of this Order. See Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008) (“District
courts routinely do not terminate a case at the same time that they grant a defendant’s motion to
dismiss; rather, they generally dismiss the plaintiff’s complaint without prejudice and give the
plaintiff at least one opportunity to amend her complaint.”); Barry Aviation Inc. v. Land
O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 687 (7th Cir. 2004) (stating that the general rule
is that “the district court should grant leave to amend after granting a motion to dismiss”).

C.

Breach of Contract Claim (Counts III)
The Plaintiff also asserts breach of contract, alleging that the Defendants violated its

Terms and Conditions, which appear on its website and prohibit the “systematic retrieval
(including by use or data mining, robots, or other extraction tools) of data or other content from
the [Plaintiff’s] website.” (Am. Compl. ¶ 5 (quoting Ex. A., Pl.’s Terms and Conditions).) Users
of the Plaintiff’s website “signify their acceptance of the [Plaintiff’s] Terms and Conditions by
virtue of their access and use of the Site.” (Id. at ¶ 28 (“The Terms and Conditions state that,
‘[b]y using the Site, you signify your agreement to these terms and conditions and [the

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Plaintiff’s] Privacy Policy.’”).)
As an initial matter, because the Plaintiff’s federal claims create a basis for subject matter
jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), the Court has jurisdiction over the
Plaintiff’s state claims pursuant to 28 U.S.C. § 1367 (supplemental jurisdiction). Under the
familiar rule of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)—which is applicable to state
law claims that are brought through supplemental jurisdiction, Houben v. Telular Corp., 309
F.3d 1028, 1032 (7th Cir. 2012)—a federal court sitting in diversity applies the substantive law
of the state in which it sits; which in this case, is the substantive law of Indiana.
“The law concerning contracts is well settled in Indiana. An offer, acceptance, plus
consideration make up the basis for a contract.” Dimizio v. Romo, 756 N.E.2d 1018, 1022 (Ind.
Ct. App. 2001). “A mutual assent or a meeting of the minds on all essential elements or terms
must exist in order to form a binding contract.” Homer v. Burman, 743 N.E.2d 1144, 1146–47
(Ind. Ct. App. 2001) (“Assent to th[e] terms of a contract may be expressed by acts which
manifest acceptance.”) (internal quotation marks and citation omitted). But as far as the Court
can tell, Indiana courts have not weighed in on the validity of so-called “browsewrap
agreements,” which is the type of agreement at issue here. See Sgouros v. TransUnion Corp, No.
14 C 1850, 2015 WL 507584, at *6 (N.D. Ill. Feb. 5, 2015) (noting that browsewrap agreements
“do not require users to sign a document or click an ‘accept’ or ‘I agree’ button, so users are
considered to give assent simply by using the website.”) (internal quotation marks and citation
omitted).3
3

An alternative to a browsewrap agreement is a “clickwrap agreement,” which requires an
affirmative act on the part of the user to manifest assent—namely, the user’s clicking of a button
accompanying a statement instructing the user that their click constitutes acceptance to the terms at issue.
Sgouros, 2015 WL 507584, at *4.

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However, several district courts in this Circuit have found browsewrap agreements to be
enforceable when a user has actual or constructive knowledge of the website’s terms and
conditions. See, e.g., id. at *6; Hussein v. Coinabul, LLC, No. 14 C 5735, 2014 WL 7261240, at
*2–3 (N.D. Ill. Dec. 19, 2014); Van Tassell v. United Mktg. Grp., LLC, 795 F. Supp. 2d 770,
790–91 (N.D. Ill. 2011); see also Nguyen v. Barnes & Noble, 763 F.3d 1171, 1176 (9th Cir.
2014). Thus, “[w]hen there is no evidence that users had actual knowledge of terms at issue, the
validity of a browsewrap contract hinges on whether a website provided reasonable notice of the
terms of the contract, i.e., whether users could have completed their purchases without ever
having notice that their purchases are bound by the terms.” Sgouros, 2015 WL 507584, at *6
(internal quotation marks and citation omitted).
The Defendants argue that the Plaintiff has failed to allege the existence of an
enforceable browsewrap agreement; namely, by failing to show that the Defendants had actual or
constructive notice of the Terms and Conditions. The Defendants note that
[t]he hyperlink directing users to Plaintiff’s Terms of Use is listed below 16 other
links at the bottom of every page of the CouponCabin website. And while the
hyperlink’s font (white) is adequately contrasted by the color of its background
(grey), it is buried at the bottom of each webpage. On the homepage alone, a user
must scroll through nine screen shots to arrive at the hyperlink of the Terms and
Conditions. Additionally, if printing the homepage, the hyperlink appears at the
end of a 14-page printout.
(Defs.’ Br. 18 (internal quotation marks and citations omitted).)
After reviewing the Plaintiff’s website, as presented in the Defendants’ exhibit [ECF No.
66-1], the Court agrees that a user is not immediately confronted with the Plaintiff’s Terms and
Conditions; and therefore, a reasonable argument can be made that the Terms and Conditions fail
to provide constructive notice. Nevertheless, the Court is required to view the complaint

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allegations in a light most favorable to the Plaintiff, and accept as true all reasonable inferences
to be drawn from the allegations. Whirlpool, 67 F.3d at 608. The Court is therefore reluctant to
declare the browsewrap agreement’s unenforceability at this early stage of the
litigation—particularly in light of the Plaintiff’s allegations that the Defendants “knowingly and
intentionally circumvented [the Plaintiff’s] security measures in order to continue their data
scraping activities” (Am. Compl. ¶ 40), even after the Plaintiff communicated with the
Defendants and “demand[ed] that they cease and desist their data scraping, misappropriation of
Coupon Content or data from the [Plaintiff’s] website” (id. at ¶ 74). Based on these pleadings, a
determination as to whether the Defendants had sufficient notice of the Terms and Conditions is
more appropriately answered at a later point in the litigation.

II.

Rule 12(e) Motion for a More Definite Statement
Lastly, the Defendants move for a more definite statement pursuant to Rule 12(e). A

motion for a more definite statement will be granted if a “pleading to which a responsive
pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare
a response.” Fed. R. Civ. P. 12(e). “[B]ecause of the availability of extensive discovery, Rule
12(e) motions are disfavored and reserved for ‘the rare case’ where the answering party will not
be able to frame a responsive pleading. Thus, courts seldom grant these motions unless the
complaint is downright unintelligible or the heightened requirements of Rule 9(b) apply.”
Nikolic v. St. Catherine Hosp., No. 2:10 CV 406, 2011 WL 4537911, at *6 (N.D. Ind. Sept. 28,
2011) (quoting Schaedler v. Reading Eagle Publ’n, Inc., 370 F.2d 795, 798 (3d Cir. 1967) and
citing Bank of Am. Leasing & Capital, LLC v. Global Grp., Inc., 2:10–CV–390–WCL–PRC,

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2011 WL 53088, at *1 (N.D. Ind. Jan.7, 2011) (explaining that Rule 12(e) motions are
disfavored, but are appropriate where the plaintiff fails to satisfy Rule 9(b)), MacNeil Auto.
Prods., Ltd. v. Cannon Auto. Ltd., 715 F. Supp. 2d 786, 790 (N.D. Ill. 2010) (emphasizing that
motions for a more definite statement do not lie as a substitute for discovery; they should be
granted only where the attacked pleading is so unintelligible that the movant cannot respond),
and Moore v. Fid. Fin. Servs., Inc., 869 F. Supp. 557, 559–61 (N.D. Ill. 1994) (denying a Rule
12(e) motion where discovery would allow the defendant to “easily” determine the plaintiff’s
contentions)).
Although the Plaintiff’s claims are not subject to heightened pleading standards, the
Defendants argue that the Amended Complaint is insufficient because it includes generalized
allegations “without specifically articulating any actions attributable to a single defendant.”4
(Defs.’ Br. 21.) For support, the Defendants cite Parker v. Brush Wellman, Inc., 377 F. Supp. 2d
1290 (N.D. Ga. 2005), a class action lawsuit against multiple defendants, all of whom were
involved in the manufacture and/or use of products containing beryllium, a toxic substance. Id. at
1292. The plaintiffs asserted that they were exposed to a respirable form of the substance; but as
the court noted, their complaint included “no factual allegations regarding whether [p]laintiffs
were exposed to each individual [d]efendant’s beryllium-containing products, nor are there any
allegations regarding the approximate times (i.e., approximate date ranges) of alleged beryllium

4

The Defendants also criticize the Plaintiff’s use of so-called “shotgun pleading,” where each
count incorporates by reference all preceding paragraphs and counts of the complaint, see CustomGuide v.
CareerBuilder, LLC, 813 F. Supp. 2d 990, 1001–02 (N.D. Ill. 2011) (noting that courts discourage
“shotgun pleading”); along with the Plaintiff’s use of the term “on information and belief” at certain
points in the pleadings, see Maclean-Fogg v. Edge Composites, L.L.C., Civil Action No. 08 C 6367, 2009
WL 1010426, at *6 (N.D. Ill. Apr. 14, 2009) (“Allegations based exclusively on information and belief
are insufficient unless the facts are inaccessible to the pleader, and there is a reasonable basis to suspect
the facts are true.”).

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exposure.” Id. at 1295.
By contrast, the Plaintiff alleges that each Defendant engaged in fairly specific conduct
(i.e., manual scraping, or the employment of scraping programs to “download, copy and/or
record, and/or enable the republishing of, Coupon Content and other data from [the Plaintiff’s]
website” (Am. Compl. ¶ 5)), and that they did so within a fairly specific time frame (i.e., “[s]ince
at least early fall 2013.” (Id.). Despite the aggregated form of the complaint allegations, the
Court is not persuaded that this is one of “the rare case[s]” where the answering party will not be
able to frame a responsive pleading. See Nikolic, 2011 WL 4537911, at *6. As noted above,
absent heightened pleading standards under Rule 9(b) or unintelligible pleadings, Rule 12(e)
should not be used as a substitute for discovery. The Defendants’ alternative request for a More
Definite Statement is denied.

CONCLUSION
For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART the
Defendants’ Motion to Dismiss [ECF No. 65]. Count II is DISMISSED WITHOUT
PREJUDICE, with leave to refile within 14 days of the date of this Order.
SO ORDERED on June 8, 2016.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

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