Keithly v. Intelius Inc.
2011 U.S. Dist. LEXIS 16861
W.D. Wash.2011Background
- Intelius is an online information service that offers background checks and related products; customers may be offered multiple add-ons during a single transaction, including third-party products such as Identity Protect offered by Adaptive Marketing; Keithly, Bebbington, and Lee experienced multi-step transactions where discounted add-ons and “free” trials were presented; Identity Protect was disclosed late in the process with limited conspicuousness about ongoing charges; Keithly’s transaction ended with repeated $0.00 summaries while actual charges would occur later; Washington residents allege deceptive marketing under the CPA and seek class-wide relief, unjust enrichment, and declaratory relief; the court considers whether the pleadings state a plausible CPA claim, standing, and SCA applicability, among other issues; the court also evaluates incorporation of screen shots and documents referenced in the complaint and other materials submitted by the parties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CPA claim is plausibly pled | Keithly/Bebbington show deceptive multi-step offers | Marketing practices not deceptive; lack of intent not required | Partly for plaintiffs; two marketing techniques could deceive |
| Standing under the CPA for nonresident plaintiffs | Lee (nonresident) should have standing | Washington law limits CPA standing to residents affected | Lee’s CPA claim dismissed for lack of standing; applies to nonresidents as to the class claims |
| Stored Communications Act applicability | Disclosures of billing to Adaptive Marketing violate SCA | Intelius does not provide electronic communications services | SCA does not apply to Intelius |
| Unjust enrichment claim viability | Intelius retained unjust gains via Adaptive Marketing | Adequate allegations; benefits do not establish unjust enrichment | Unjust enrichment claim survives against Intelius |
| Impact of D.C. or nationwide class on CPA claims | CPA applies broadly to nationwide class | CPA claims limited; standing and scope narrow | Nationwide CPA class claims dismissed; other CPA claims may proceed against Intelius |
Key Cases Cited
- Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 719 P.2d 531 (Wash. 1986) (definition and elements of CPA claim)
- Panag v. Farmers Ins. Co. of Wash., 166 Wash.2d 27, 204 P.3d 885 (Wash. 2009) (reasonable consumer standard for deception)
- Robinson v. Avis Rent A Car Sys., Inc., 106 Wash.App. 104, 22 P.3d 818 (Wash. Ct. App. 2001) (capacity to deceive under CPA standard)
- Pantron I Corp. v. Cyberspace.Com Corp., 33 F.3d 1088 (9th Cir. 1994) (deception test under FTC Act applied to CPA context)
- Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1103 (9th Cir. 2003) (fraud/necessity of state-law pleading standards)
- Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994) (incorporation by reference—document reliance)
- Schnall v. AT&T Wireless Servs., Inc., 168 Wash.2d 125, 225 P.3d 929 (Wash. 2010) (standing and CPA scope for nonresidents)