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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
How do I get on board, I ordered an item and when I got it was missing essential parts. In the item title it read as if these parts was included and in the Item description it had read the same way. When I received the item and confronted them about the missing parts. All of a sudden the description changed but the title still read the same and the told me I can return the item for a refund at my own cost.
How do I get added to the lawsuit against Wish.com? I just purchased hundreds of dollars worth of clothing and accessories and every single item I’ve received has been counterfeit!! I’ve requested a refund for all items but I’ve waited months to receive them and now that they are slowly being delivered I realize I have been scammed big time!
I just recieved a tablet which stated in the description it was running Android 8.0 (oreo) but when i checked the operating system i found out it was in fact running Android 4.4 (KitKat) would that fall under “false advertising” i only bought it because it was advertised as running Android 8.0
I am currently having problems with Wish. 1. The ads and descriptions hardly match up. They will call a diamond Sona on the ad and picture page but then on the description page it is a CZ.
2. Jewelry that they call solid 925 silver is infact not solid but plated. Things that say it is plated with platinum is plated with white gold as thin as can be.
3. You cannot ask questions about a product before you purchase it. You must purchase the Item called the purchasing phase. During this phase you cannot ask questions about the product. You only have the choice of continuing with the purchase, canceling the purchase or “Nevermind”. The next phase is the processing phase. During this phase you are permitted to ask questions. Then you get a prewritten letter explaining that they will get to you within 48 hours. The problem is, by the time you get your answers about the product it has already shipped. I have an item now and it has been well over 48 hours and they have not answered my questions about the product. Yet it is on its way to my house. Once the item is shipped you cannot of course cancel the item if your description proves to be untrue.
Bottom line, the merchants lie about their products, there really is no customer support only a chain of pregenerated letters that mean nothing. You cannot call and talk to anyone. And most of your questions go unanswered. In fact right now they are not answering any of my inquiries.
I am having the same issues as you regarding their automatic generated replies. I am so angry at their lack of offering communication to their customers.but my situation is different. I spent hundreds already and was given a delivery date.i expect my item to be delivered by that date. Because I paid the shipping for it, and we all know how much the shipping costs!! I patiently wait the half month wait for my items. But each time it reaches the expected delivery date, wish changes the date to a later date. Adding on a additional 2 weeks. If it is really on the way to me, I can wait. But in tracking it shows that packages were returned back to shipper from their carrier and since then there has been no new shipment attempt. And other items tracking says that a shipping label has been made but no package has been received by carrier for delivery. I cant request a cancel or refund until the delivery date passes. But they keep adding more time to the delivery date so that I cant request a refund or cancelation. They violated their own shipping terms and money back cancelation terms that they promised. They promise it but don’t offer it.this is so wrong.
Omg same! And every time I reach out they’re like oh we can’t give you a refund because your item has already shipped please wait until the delivery date and if it hasn’t arrived by then we can help. Then the delivery date comes and still no package so when I go to request my refund I notice the delivery date has been extended automatically and I can’t request a refund and I must wait until the new date to request a refund. I’m in a loop. The delivery date has been pushed back automatically 4 times now! What can I do??!
I also with many items I still have not received..Some I don’t know were they came from all of the ones I got are fake..extremely poor quality… And as you said their is no customer support its all on a loop.its impossible… 1500.00 I’m out with nothing but Crap product so far… All the rest won’t get here till October!!
I like wish but they do sale fake gold and they even stamp it 14k so it looks real. They do that with the silver rings too. They are stamped 925 inside.
I ordered dozens of items for Christmas only to recieve a refund notice for over 90% stating the items were not available or were not ordered in time for the discount. I could maybe see one or two .but nearly everything. I ordered because I wasn’t physically able to get out and shop. Now I have nothing and praying the money will be returned to my account.
Can I open a lawsuit against Wish.com for breach on Delivery dates. I paid them online for products I purchased and promised they would be deliver 1stly on the 13th of December and then moved to the 20th of December and still have not received my package.
Wondering the same thing because this is happening to me too
I have had my debit card billed for items I did not order and did not receive. I am 70 years old and live on social security social so I can’t afford to have money taken out of my account for frivolous things. I have sent numerous e mails. It is impossible to get a phone number for them
I too need to sue wish.com or misrepresented as being real gold when it definitely is not
There are items that I purchased and never received as well. When I brought it to the attention of customer service, I was told there was nothing they could do because it was past 30 days from the delivery date. This is poor business practice and poor customer service too. They have my money and the product they claim was delivered to me. Basically, they say I’m a liar.
Yeah well, this whole scam is damaging. It’s damaging to people’s representations of business and value, and damaging to the business reputations of those trying to make prophet on the retail value of certain products.
Lying about a product real value to make a sail, is also a misrepresentation of true economy, and trade value.
I bought a watch I thought would be an amazing deal, marked down for. $700.00 but it’s actually only worth $15.00 dollars.
I try to get a lone against it and It makes everyone damage their reputations for engaging in such an attempt of sale.
I’d say this guy has a case. Misrepresenting prices as fake markdowns is damaging to the economy. And can be damaging to people’s ability in business commerce.