eBay Seeks Dismissal of ‘Buy it Now’ Class Action Lawsuit

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EBay Inc. shot back at a car seller on Friday who filed a class action lawsuit alleging that its “Buy It Now” feature prematurely removes items from being listed before the purchase is complete, saying the plaintiff failed to show the company breached its contract.
“Instead, he asserts a variety of claims in an effort to manufacture new obligations that go beyond, and conflict with, the contract he agreed to,” eBay said in its Dec. 6 motion to dismiss the proposed class action lawsuit.

Plaintiff Luis Rosado claims that he tried to sell a vehicle on at least two occasions using eBay’s “Buy it Now” feature. Due to concerns that the buyer in the second listing could have been trying to commit fraud, Rosado did not go through with the transaction after the buyer clicked on the “Buy it Now” button. However, he was upset to learn that the listing had been automatically and permanent removed when the button was pressed and that he would have to pay an “insertion fee” and start over. Rosado claims he is entitled to a refund of the fees he paid to list the item for sale of eBay and other relief because the user clicked to buy the item but did not make a payment.

The tech giant says its policies are clear and that the plaintiff did not avail himself of options that would have protected him or potentially resulted in a refund in his particular case. For one, the motion to dismiss notes that buyers can tick a box for “immediate payment” when creating a “Buy It Now” listing that requires a buyer to be able to complete the purchase. If they do not, the used car or other product remains visible to other users.

Even without those safeguards in place, the listing fees and policies regarding that type of sale are governed by a contract that eBay argues expressly outlines what should occur. Fraud isn’t possible, the motion alleges, because the Ninth Circuit ruled that it is impossible to plead that claim if a defendant “had fulfilled its obligations under the [agreement].” In addition, there is no precedent for a breach of implied covenant or a quasi-contract when there is an actual one in place, eBay argues.

The implication that a reasonable consumer would not read the documentation on the website in order for a seller to place an item and thus not believe that the insertion fee would only cover the time until the product is sold also does not jibe with what eBay provides to users, according to the motion.

EBay is asking the Court to dismiss Rosado’s class action lawsuit, which is his third attempt at bringing such claims against the company.

Rosado is represented by Jordan L. Lurie, Tarek H. Zohdy and Cody R. Padgett of Capstone Law APC and D.J. Morgado of Feldman Fox & Morgado PA.

The eBay Buy it Now Class Action Lawsuit is Luis Rosado v. eBay Inc., Case No. 12-cv-04005, in the U.S. District Court, Northern District of California.

UPDATE: A federal judge denied eBay’s motion to dismiss the Buy It Now class action lawsuit on June 30, 2014. The case continues.

UPDATE 2: On July 24, eBay reportedly agreed to settle the “Buy It Now” class action lawsuit.

UPDATE 3: Claim filing instructions for the eBay Buy It Now class action settlement are now available! Click here or visit www.eBayBuyItNowClassAction.com for details.

UPDATE 4: On Jan. 8, 2016, the plaintiffs filed a motion seeking final approval of the eBay Buy It Now class action settlement.

UPDATE 5: On Sept. 23, 2016, Top Class Actions readers started receiving checks in the mail worth as much as $15 from the eBay “Buy It Now” class action settlement. Congratulations to all our viewers who filed a Claim Form and got PAID!