Friday, October 15, 2010
Northern District of California Certifies UCL Class Against Ebay: Ewert v. Ebay, Inc.
On September 30, 2010, Northern District Court Judge, Ronald M. Whyte, certified a deceptive promotion/advertisement UCL class against Ebay arising out of alleged systemic delays in fulfilling material terms of service in Ebay’s “But It Now” listing service. See Ewert v. Ebay, Inc., 2010 U.S. Dist. LEXIS 108838 (N.D. Cal. Sept. 30, 2010). Under plaintiff’s theory, individuals who post items for auction on Ebay are offered the option, for an additional fee, “to have a ‘Buy It Now’ price on an auction-style listing” which is purchased for a set “duration, such as 1, 3, 5, 7, or 10 days.” See id., at 3. The rub, as alleged by plaintiffs, is that “[a]ll listings are affected by technical delays caused by the time necessary to index and load listings” and “eBay also does not extend the listing period to compensate for these delays.” See id. at 3-4. Ebay’s opposition, which was predicated largely upon the argument that individualized inquiry would be required as to reliance and restitution under the UCL, failed to carry the day. See id. at 34-35 (As “there is no need for individualized inquiries into contract interpretation, reliance, consumer status, damages, or restitution, the court concludes that the proposed class is sufficiently cohesive to warrant adjudication by representation….”).