Judge Won’t Certify Plimus Unlimited Download Class Action Lawsuit

A woman who said that she signed up for a Plimus Inc. service promising unlimited e-book downloads yet could not obtain any of the books portrayed on the site cannot adequately act on behalf of a putative class of plaintiffs who were similarly affected by the alleged false advertising of Plimus, Inc., a federal judge in California decided.

U.S. District Judge Thelton Henderson found that plaintiff Kimberly Yordy failed to meet the adequacy requirement for class certification. Because she sought to certify a class of individuals who had used a variety of so-called “unlimited download websites,” Judge Henderson determined that Yordy needed to provide evidence to support her allegation that other Plimus sites operated in similar manner to the site she used.

While Judge Henderson determined Yordy did plead adequately in addressing her experience with TheNovelNetwork.com, a website allegedly operated by the company, the class action lawsuit named more than a dozen other related websites without providing evidence of Plimus operating them in a similar fashion. Yordy has “not demonstrated that she and the class members share common claims, and that her claims are typical of the claims of other class members,” the judge noted.

That raises problems regarding typicality, as there was no evidence in the complaint that the instance of alleged fraudulent misrepresentation on each site “was similar such that Yordy’s claim … would be similar to other class members” and that the complaint fails to meet the standard for class certification because it does not demonstrate that visitors to other unlimited download websites would have the same experience that she did.

While Plimus, a Great Hill Partners subsidiary, has alleged that it was only involved in payment processing and matching affiliate marketing partners with websites, Judge Henderson did nix this portion of the complaint, alleging that Yordy had adequately pleaded that there was the possibility of fraudulent advertising in her experience that could be decided as a question of fact.

According to the class action lawsuit, which was initially filed in Jan. 2012, much of the material that the unlimited download website allegedly provided was either out of copyright or in the public domain, meaning that they are freely available.

Yordy is represented by Rafey S. Balabanian, Christopher L. Dore, Sean P. Reis and Benjamin H. Richman of Edelson LLC.

The Plimus Unlimited Download Class Action Lawsuit is Kimberly Yordy v. Plimus Inc. et al., Case No. 12-cv-00229, in the U.S. District Court for the Northern District of California.

UPDATE: Plaintiffs filed an amended complaint on Feb. 5, 2014, seeking new certification of the Plimus Unlimited Download Class Action Lawsuit.