Metropolitan News-Enterprise


Monday, October4, 2010


Page 3


Court of Appeal Orders Class Certification in Action Against


By STEVEN M. ELLIS, Staff Writer


The Fourth District Court of Appeal on Friday revived a class action alleging that online retailer violated state law by failing to pay rebates advertised on products purchased through its website.

Div. Three in an unpublished opinion said an Orange County judge erred when she declined to certify a class in a suit claiming the retailer violated California’s unfair competition law and Consumers Legal Remedies Act, and engaged in negligent misrepresentation.

Richard M. Kershenbaum sued when it declined to honor a $30 mail-in rebate on a Connect 3D memory card he purchased in 2007 for $30. Kershenbaum returned the appropriate rebate forms, but Connect 3D failed to pay the rebate.

He subsequently requested a rebate from the company, based in Aliso Viejo, but it told him the rebate was the responsibility of the product manufacturer and that was not responsible for compensating him. The retailer later offered customers who did not receive rebates from Connect 3D a $10 gift card.

Kershenbaum sought class certification of his lawsuit, but Orange Superior Court Judge Gail Andrea Andler denied the motion. She concluded that Kershenbaum failed to show an ascertainable class because he presented the court with three differing definitions of the class in the memorandum of points and authorities supporting his motion, and in his proposed order.

Andler also said that it was unclear whether Kershenbaum alleged that failed to perform “due diligence” as to Connect 3D’s financial condition, or engaged in misleading advertising. If he claimed the latter, she wrote, his testimony that he believed that a website is responsible for all rebates listed, even if it states that the rebate will be provided by the manufacturer, deprived him of standing because the testimony showed he did not rely on any of’s representations or omissions before making his purchase.

The judge further opined that Kershenbaum failed to show that common issues of law predominated.

The Court of Appeal, however, rebuffed all of those conclusions in an opinion by Justice Richard D. Fybel.

Fybel wrote that two of the definitions put forth by Kershenbaum were similar enough that denial of certification over the “difference” would be an abuse of discretion, and he agreed with the plaintiff that Andler could have removed a phrase in the third definition that excepted from the class purchasers of a type of products otherwise unmentioned in his motion.

“Any confusion caused by the different definitions could and should have been remedied by the trial court, either by correcting the proposed order, or by independently drafting a new order,” he explained

The justice also said that common issues of law did predominate because a California choice-of-law provision in’s terms of use agreement applied to claims asserted by the class.

The retailer argued that differences in the laws of California and the other 49 states in which proposed class claimants resided would “swamp” the common issues. Fybel, however, construed the choice-of-law provision against despite the retailer’s claim that its own provision was an unenforceable contract of adhesion.

Even if the provision did not apply, the class had significant contacts with California, he wrote, adding: “ cannot explain why another state would object to having California provide greater protection to its citizens against alleged wrongdoing by a California defendant.”

Fybel said Kershenbaum’s allegations were not “vague,” noting that he essentially alleged that the advertising of a free rebate was misleading, and the justice rebuffed’s claim that there was nothing it could have done to disabuse Kershenbaum of his asserted belief about rebates on websites.

“The misleading advertising Kershenbaum’s complaint alleged is the statement that the Connect 3D products purchased were free after the rebate, when in fact a rebate was not available,” he commented. “Kershenbaum has standing to assert such a claim, and the trial court erred in determining otherwise.”

Justices Kathleen O’Leary and Raymond J. Ikola joined Fybel in his opinion.

The case is Kirshenbaum v., Inc., G042303.


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