Case: 09-20648 Document: 00511211937 Page: 1 Date Filed: 08/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 23, 2010
No. 09-20648
Lyle W. Cayce
Clerk
MICHAEL P. BOTT; DELORIS GORDON; LAUREL HUDSON;
JONATHAN MOOREFIELD; SUSAN OLMSTED; PHILLIP PACETTI;
RENEE WEST; KEVIN WOOLLEY; ASHLEY MITCHELL;
MILES-KEVIN BARON, Doing Business as Victory-Riders.com,
Plaintiffs-Appellants,
versus
VISTAPRINT USA INC.; ADAPTIVE MARKETING LLC;
VERTRUE INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-MD-1994
Case: 09-20648 Document: 00511211937 Page: 2 Date Filed: 08/23/2010
No. 09-20648
Before DAVIS, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Plaintiffs sued under the Electronic Funds Transfer Act, the Electronic
Communications Privacy Act, the Massachusetts Unfair Trade Practices Act,
and the common law, alleging that they were tricked into enrolling in certain
membership programs when they used defendants’ websites. The various ac-
tions were transferred to the district court a quo by the Judicial Panel on Multi-
district Litigation. Defendants moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6), asserting that their webpages were not deceptive as a matter
of law, because they contained sufficient disclosures such that no reasonable
person could be deceived.
The district court agreed with defendants and dismissed. In a well-rea-
soned, detailed Memorandum and Order entered on August 31, 2009, the court
held that the subject webpages were not deceptive as a matter of law and that
“plaintiffs’ allegation regarding the deceptive nature of the webpages at issue is
clearly and unequivocally refuted by the webpages themselves . . . .” In re Vista-
Print Corp. Mktg. & Sales Practices Litig., No. MDL 4:08-MD-1994, 2009 U.S.
Dist. LEXIS 77509, at *14 (S.D. Tex. Aug. 31, 2009) (Atlas, J.). The court prop-
erly observed that
[a] consumer cannot decline to read clear and easily understandable
terms that are provided on the same webpage in close proximity to
the location where the consumer indicates his agreement to those
terms and then claim that the webpage, which the consumer has
failed to read, is deceptive.
Id. at *20.
In addition, the district court examined the claims made under each as-
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
2
Case: 09-20648 Document: 00511211937 Page: 3 Date Filed: 08/23/2010
No. 09-20648
serted cause of action and theory of recovery. The court’s detailed analysis is
compelling in explaining that each claim is entirely without merit.
We have reviewed the briefs and applicable law and have consulted applic-
able portions of the record. There is no error. The judgment is AFFIRMED, es-
sentially for the reasons stated by the district court.1
1
We decline plaintiffs’ request that we take judicial notice of certain documents not
presented to the district court.
3