Duane Morris Consumer Fraud Class Action Review – 2024

and Deceptive Business Practices Act. The court granted the defendant ’ s motion to dismiss. The court ruled that the plaintiff failed to assert that any statements from the defendant were misleading or omitted relevant information about its Super C product. The court noted that packaging Super C and DayQuil together in a “Daytime Convenience Pack” was not the same thing as misleading consumers about either product ’ s uses. The court determined that the defendant did not omit a material fact and there was a clear disclaimer on the packaging. Id. at 3. Accordingly, the court granted the defendant ’ s motion to dismiss. The lead plaintiff in Polvay, et al. v. FCTI, Inc., 2023 U.S. Dist. LEXIS 40946 (S.D.N.Y. Mar. 10, 2023), was an ATM user at a 7-Eleven. After discovering he had been assessed fees for using the 7-Eleven ATM to check his balance, the plaintiff initiated a consumer fraud class action because, he contended, FCTI failed to properly warn consumers of the fees in violation of the New York General Business Law. The plaintiff asserted that after seeking to withdraw money, the ATM displayed a screen with a “Continue/Cancel Prompt.” Id. at *3. The plaintiff pressed “Continue” to complete the transaction, which resulted in his bank charging him two $3 fees for balance inquiries. Id. The plaintiff alleged that this Continue/Cancel Prompt was deceptive. Id. at *3-4. FCTI argued that the plaintiff did not receive inaccurate or unlawful communications, that the prompt was clear, and that the prompt did not cause any alleged injury. As such, following discovery, FCTI filed a motion for summary judgment. The court denied FCTI ’ s motion. The court rejected FCTI ’ s arguments on the grounds that genuine disputes of material fact existed. FCTI argued that the plaintiff could not have been deceived because FCTI ’ s allegedly wrongful communications were made to a bank , not ATM users like the plaintiff. The court determined that this defense position mischaracterized the plaintiff ’ s argument, which was that the “Continue/Cancel” prompt was misleading, not that the report provided to the banks issuing the fees were misleading. FCTI also argued that the messages displayed on its ATMs were clear and that the plaintiff admitted that he understood many of the messages. The court rejected this argument as well, finding that the only relevant inquiry concerned the Continue/Cancel Prompt, so it was irrelevant whether the plaintiff did or did not understand other prompts. Thus since there was a genuine dispute of material fact concerning whether the Continue/Cancel Prompt clearly conveyed information, the court denied FCTI ’ s motion for summary judgment. Finally, the plaintiffs in Woulfe, et al. v. Universal City Studios LLC , 2023 U.S. Dist. LEXIS 170929 (C.D. Cal. Aug. 28, 2023), a group of movie consumers, filed a class action alleging violations of the Unfair Competition Law, the California False Advertising Law, and the Maryland Consumer Protection Act. This case involved a dispute related to a movie titled “Yesterday,” which features a failed musician who wakes up in a world where no one knows The Beatles. Id. at *2. The plaintiffs rented the movie based on a trailer that included a scene with actress Ana De Armas, which was not present in the theatrical release. The plaintiffs alleged that they rented the movie on Amazon, believing De Armas would appear, and were disappointed when she was not in the movie, and that they would not have rented the movie if they were aware that she was not in it. The defendant filed a motion to strike and dismiss the third amended complaint, arguing that several allegations should be stricken, that the plaintiffs lacked standing, and that the plaintiffs could not seek injunctive relief. The court granted the defendant ’ s motion. The court agreed to strike allegations referring to non-trailer statements and dismissed claims based on common law violations of the UCL. Additionally, the court determined that the plaintiffs lacked standing for the claim related to Google Play allegations, as their injury was self-inflicted. The court concluded that the plaintiffs’ allegations that the defendant could release a version with advertising that included the scene in question and that they would be again deceived was entirely too speculative and therefore the plaintiffs failed to plausibly allege that they had standing to seek injunctive relief. For these reasons, the court granted the defendant ’ s motion. 5. Artificial Intelligence In The Consumer Fraud Class Action Space Artificial intelligence made its way into the class action arena in the consumer fraud space for the first time this past year. In MillerKing LLC, et al. v. DoNotPay Inc., Case No. 23-CV-863 (S.D. Ill. Nov. 17, 2023), the plaintiff, a

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