Clear Disclosure, Valid Consent

In a recent Massachusetts class action lawsuit, the Plaintiff accused a company marketing a continuity membership program of deceptively tricking her into enrolling. The Court disagreed, and granted the Defendant’s motion for summary judgment.

As grounds for its decision, the Court stated that the Plaintiff “cannot now show the necessary connection between the allegedly deceptive materials and her mistaken enrollment such that the defendants would be responsible for the asserted harm.”

The court further held that the company’s marketing of the programs was not deceptive, because the on-screen disclosures utilized by the Defendant during the registration process were “clear and easily understandable by anyone capable of making an online purchase.”  The court also noted that the Plaintiff had to take several affirmative steps to join the program, including typing her email address and affirmatively pressing the “Yes” button. In addition, after submitting the form, the Plaintiff received a confirmation screen and separate emails for each program with reminders that if she did not cancel, she would be charged automatically after the trial period ended.

This case serves as a clear example to any online marketer of the value of clear, conspicuous disclosure as a defense to deceptive marketing claims.  If the Defendant had not undertaken these important steps, the result would doubtless have been far less favorable.

Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.

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