FreshDesk Class Action Says Automatic Renewal Terms Inadequate

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A new class action lawsuit accuses FreshDesk Inc. of failing to give customers proper notice of its automatic renewal terms under California law.

Plaintiff Victoria Kissel says that FreshDesk’s terms of service violate California’s Automatic Renewal Law and Unfair Competition Law by failing to present the terms of its automatic renewal or continuous service in a clear and conspicuous manner.

According to Kissel’s FreshDesk class action lawsuit, defendant FreshDesk “operates a website that markets and sells subscriptions for customer service support services, including email and telephone support, cloud systems and data support.”

Kissel says that under FreshDesk’s terms of service, the company provides these office support services on a subscription basis. These subscriptions automatically renew with monthly billing if they are not modified or cancelled.

The FreshDesk class action lawsuit includes screen shots of the defendant’s website that show how the various subscriptions are presented to a potential purchaser. Kissel points out that the web page that prompts the customer to select a plan does not make clear the recurring nature of the subscription. On the page in which the customer can enter their credit card information, an indication that the customer will be billed monthly appears surrounded by information about the selected plan and the selected currency.

Kissel argues that these FreshDesk web pages fail to prompt the customer for the “affirmative consent” to automatic renewal that is required by California’s Automatic Renewal Law. This law was enacted in 2010 to end the practice of making ongoing revolving charges in exchange for regular delivery of goods or services without the consumer’s explicit consent to such an arrangement, she says.

As Kissel describes it, the law requires a business to present the terms for automatic renewal in a clear and conspicuous manner before the consumer agrees to the purchase. These terms must also be presented in close proximity to the request for the consumer’s consent to the offer – either in close visual proximity for written terms, or in close temporal proximity for an offer conveyed by voice.

FreshDesk also fails to provide customers the required acknowledgment of purchase that would include the offer terms, cancellation policy, and options for how to cancel, Kissel says.

The plaintiff further argues that under the Automatic Renewal Law, the goods and services that FreshDesk has provided without getting the required affirmative consent are automatically deemed an “unconditional gift” for which the consumer owes FreshDesk no obligation whatsoever.

If certified, the proposed nationwide Class will include all persons in the U.S. who, within the applicable statute of limitations period, made a purchase in response to an offer from FreshDesk or its affiliates that qualifies as an “Automatic Renewal” under California’s Automatic Renewal law.

Kissel seeks a court order declaring that FreshDesk has violated several specific terms of the California Automatic Renewal Law and the Unfair Competition Law. She seeks an award of damages and restitution for herself and the proposed Class, plus costs and attorneys’ fees.

The plaintiff is represented by Gillian M. Wade of Milstein, Adelman, Jackson, Fairchild & Wade LLP; and by Scott J. Ferrell, Richard H. Hidika, David W. Reid, and Victoria C. Knowles of Newport Trial Group.

The FreshDesk Automatic Renewal Class Action Lawsuit is Victoria Kissel v. FreshDesk Inc., Case No. 2:16-CV-02777, in the U.S. District Court for the Central District of California.