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An Ohio man who alleges the creator of the Wish.com advertises fake discounts on its website is urging the Sixth Circuit appeals court to revive his recently dismissed class action allegations.
On March 18, 2016, plaintiff Max Gerboc filed a class action complaint against ContextLogic Inc. alleging that when he purchased portable Bluetooth speakers from Wish.com for $27, he was given the impression that the speakers were regularly priced at $300.
Wish.com is a website and mobile application where consumers can buy thousands of types of products, ranging from home goods to apparel. ContextLogic is the creator and operator of Wish.com.
Gerboc alleged that ContextLogic falsely represented that the portable Bluetooth speakers were regularly priced $300, and falsely represented a savings of 91 percent off the regular price, “in an effort to induce customers to purchase products from its Website.”
He claimed that this was an unfair and deceptive advertising practice designed to mislead him “and other consumers by including bogus reference prices in its website advertising, in violation of” Ohio’s Consumer Sales Practices Act (CSPA). He also sued for breach of contract, fraud, and unjust enrichment claims, and sought certification for the class action lawsuit.
ContextLogic removed the case to the Northern District of Ohio, then moved to dismiss, alleging, among other things, that Gerboc’s “failure to allege actual damages defeats [his] class action claim.” Gerboc opposed, but the district court agreed with ContextLogic, and on Nov. 4, 2016, dismissed his class action claim, finding that Gerboc alleged “no actual damages and, in the absence of actual damages,” a consumer cannot maintain a class action under Ohio’s CSPA.
Additionally, the court dismissed Gerboc’s other claims for fraud and unjust enrichment, ruling that Gerboc failed to alleged that Context misrepresented the “benefits” of the portable Bluetooth speakers or failed to process the order.
However, Gerboc requested the court to certify the ruling so that he could appeal the dismissal of the other claims. His request for the interlocutory appeal was granted in December.
In his appeal to the Sixth Circuit filed Monday, Gerboc argued that his claims for unjust enrichment should be revived.
The first issue plaintiff Max Gerboc argued in support of his appeal to revive his claims for unjust enrichment, was that he conferred a benefit on ContextLogic when he paid for the portable Bluetooth speakers he purchased on Wish.com. According to Gerboc, ContextLogic made a profit from his purchase and retained that benefits.
“Because the defendant was unjustly enriched, the plaintiff is entitled to restitution, which is measured not by the plaintiff’s loss, but by the defendant’s gain — the profits gained from its deceptive marketing scheme,” Gerboc told the appellate court.
Gerboc also asserts that the District Court erred in dismissing the Class claims for violations of Ohio’s CSPA due to a lack of actual damages. The appeal noted that in a CSPA class action, Class Members are entitled to receive restitution and that disgorgement of net profits is an appropriate measure of restitution.
Finally, the appeals brief told the Sixth Circuit that the lower court was wrong in finding that Gerboc and the Class have no damages, and thereby the dismissal of fraud and CSPA claims was erroneous. Gerboc argued that a “promised discount is material to a consumer transaction.”
“Here, the Defendant’s business model is premised on consumers receiving a great deal – in the Plantiff’s case, a 91% discount from the $300 reference price posted on the Defendant’s website. But the item he purchased never had a retail value of $300 because it was never sold at that price. Therefore, the Plaintiff never received the discount.”
Gerboc is represented by Nicole T. Fiorelli and Patrick J. Perotti of Dworken & Bernstein Co. LPA.
The Wish.com False Advertising Class Action Lawsuit is Max Gerboc v. ContextLogic Inc., Case No. 16-4734, in the U.S. Court of Appeals for the Sixth Circuit.
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66 thoughts onWish.com False Advertising Class Action Goes Before Sixth Circuit
I have so many suposivly solid gold necklace and I have not received any as of yet plus cell phones witch I never received or tvs I never received how do I join you guys in making wish reimburse me for the item I should of received my email address is noblebub8@gmail.com
I have purchased hundreds of dollars worth of wish products and never received a refund or the products Contact its customer support and I’m not getting my money back or my items including but not limited to. Multi tool shovel, 2 backpacks with water bladders, Multi lens safety glasses, And wooden storage boxes.
Wish.com show a mountain bike for free, just for be a leal costumer, just pay shipping but I receive a cloth necklace and I still claiming my price
They just argument is the package is on the way
I ordered and purchased 2/laptops,3/cellphones and 3/tablets on 3/28/18, I haven’t received any of this but only a pkg of stylus sticks.
Wish, need closing down, purchased a phone after reading the description and double checking. Placed the order and received a cheap nasty stylus. I believe this to be deliberate fraud, description detailed the phone no mention of a plastic stylus. The only way to stop this is to stop ordering from Wish and Geek. Add my name to the class action.
I too was scammed by them. I ordered a graphics card from them and they changed it to a brush to clean cards and such. I have screenshots of before they changed it and after, also a email that they admit changing it and saying they have the right to do so. The email reads ”
Wish (Wish)
Apr 19, 00:52 IST
Hello,
I understand that the product’s listing has changed and you are worried about the item that should be shipped to you.
I checked the product’s listing and could confirm that you should be receiving the original item that has been posted by the store when you purchased it. Please know that store reserves the right to change their advertisement, though we acknowledge that this may mislead customers. With this, we have reported the item to our team so they can review the listing accordingly.
If you have any other concerns, please feel free to contact us and we’ll be glad to assist you. Thank you for your utmost patience and it was my privilege serving you today.
Caroline
Wish Customer Support”
I have purchased several items. Phones, tvs, laptops. I have screenshots of the description when i purchased the items and the list that says is included. After paying once shipped the description changes to something different. This is wrong. I have proof of what it says it is suppose to be when i bought it.
I bought a 55 inch 4k UHD curve TV with triple tuner and when you look at the description it says package include a clear TV antenna when something says include that means I should get the TV and the included item but all I got was a TV antenna and when I looked at my orders it all of a sudden was changed to a clear TV antenna this is false advertising and I feel like wish.com lies bout products to customers so that they buy the stuff then changes when so many people buy the product cause it also happened with 2 laptops that I ordered and now they say that they are headphones and the other says a mouse its not right at all
I bought 4 tvs on the wish app yesterday for a great price I checked the description before and after purchase. It said it was a tv and described the fechers. I checked on the on the order today and they changed the description to head phones they had taken the money the changed the products where do I stand on this issue.
Same thing happened to me! I ordered 3 55″ 4k led tv’s for $6/ea. then when I checked on the tracking it said it was only the tv key….money is gone from my account. I dont know what to do!
Be smart 1st off do you really think you gonna get a 55 inch tv for 6 bucks that’s the 1st red flag..
You say be smart but it is also illegal what they are doing. If Walmart advertises a tv at 2 dollars guess what they have to give you that tv at 2 dollars.
I agree. I have screenshots now of the descriptions I read so they can’t trick me. If there’s a paper trail we might be able to get another lawsuit on them for false advertising since they are now messing with people’s money. If enough people are seeing this happen there needs to be something done. They can’t get away with changing descriptions after the consumer has paid for what was there when they bought it.
I see you must have got ripped off too that’s why you’re here looking but yeah you can get good deals like that on there once in a blue moon
Same thing happened to me now it’s a keychain remote I ordered 2 days ago as well
We have been screwed over with details changing after purchase and shipping with two phones a laptop and two video cards and it seems by this even though they are doing false advertising they get away with this, this is not right