Court rejects “buy button” false advertising claim because consumer hasn’t yet lost access to “purchased” content

Caudel v. Amazon.com, 2021 WL 4819602, No.
20-cv-00848-KJM-KJN (E.D. Cal. Oct. 15, 2021)

Disagreeing with
a case against Apple
, the court here concludes that Amazon’s “buy” option
that doesn’t give consumers ownership does not harm consumers who haven’t (yet)
lost access to the content, rejecting the price premium theory for reasons that
don’t make much sense to me.

The complaint alleges that Amazon charges around $10 less
for renting electronic video content rather than purchasing it, but that the
“buy” button doesn’t actually give consumers ownership, and that reasonable
consumers would not agree to the higher fee if they understood that purchased
video content might disappear from their digital libraries at some point in the
future.

“[T]he majority of courts have consistently found economic
injury when the products contain an actual defect and are allegedly worth less
than what the consumer paid. But see Andino v. Apple, Inc., No. 20-01628, 2021
WL 1549667, at *2 (E.D. Cal. Apr. 20, 2021).” [No discussion; just a “but see”
and a summary of the result.]  Although
Caudel alleged that she “receive[d] a product worth less than [its actual]
value,” there was just “a potential risk” of losing video content, which is
“not concrete and particularized” as to her.

Me: But what about the price premium she alleged she
personally paid? Why is that not concrete and particularized as to her, not to
mention not just “imminent” but materialized in the money gone from her pocket?
The implicit claim is that if there wasn’t an “actual defect,” then there can’t
have been a price premium, but plenty of things can be worth less than you paid
for them without an “actual defect.” That’s kind of the point of false
advertising law generally, and certainly the “Made in the USA” cases make clear
that deviation from what you were promised as part of the bargain is a
potential cause of economic loss.

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