                           NOT FOR PUBLICATION                           FILED
                                                                         MAR 28 2017
                    UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KEVIN PARK, on behalf of himself and all        No. 15-56079
others similarly situated,
                                                D.C. No.
             Plaintiff-Appellant,               3:12-cv-01380-LAB-JMA

 v.                                             MEMORANDUM*

WEBLOYALTY.COM, INC., et al.,

             Defendants-Appellees.


                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                     Argued and Submitted February 17, 2017
                              Pasadena, California

Before: M. SMITH and OWENS, Circuit Judges, and KORMAN,** District Judge.

      After Kevin Park bought a gift certificate for his minor son Matthew from

Gamestop.com, he saw a coupon for $10.00 on the Gamestop.com purchase




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

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confirmation page. He clicked on the link for the coupon, and then, thinking that he

was entering his email address to claim the aforementioned coupon, clicked a

confirmation button. Two years later, he discovered $264 in what he believed to be

unauthorized charges from Webloyalty, Inc., a company that was unfamiliar to him.

      Park filed a class action lawsuit against Webloyalty, including claims for

violations of the Electronic Funds Transfer Act (“EFTA”), the Electronic

Communications Privacy Act (“ECPA”), and various California and Connecticut

laws. The complaint alleges that Webloyalty duped Park into agreeing to a fee-based

membership program called Complete Savings without realizing it, by (1) using

what appeared to be a coupon on Gamestop.com to entice him to visit the Webloyalty

enrollment page with the expectation of receiving the promised coupon, and (2)

using the “data pass” method of acquiring his billing information directly from

Gamestop.com, rather than by asking Park to provide it, depriving him of notice of

entering a new financial relationship with an unfamiliar company. The district judge

granted Webloyalty’s motion to dismiss, based in part on exhibits proffered by

Webloyalty, of which judicial notice was improper, and in part on his finding that

Park’s allegations were “conclusory.” Park now appeals.

I.    Park’s EFTA Allegations Were Plausible

      Park alleges violations of two sections of EFTA. The first is that Webloyalty

initiated an “unauthorized electronic fund transfer”—that is, “an electronic fund

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transfer from a consumer’s account initiated by a person other than the consumer

without actual authority to initiate such transfer and from which the consumer

receives no benefit . . . .” 15 U.S.C. § 1693a(12) (emphasis supplied). The

allegations in the Second Amended Complaint (“SAC”) regarding Park’s reliance

on the $10.00 coupon, and the deceptive nature of the “data pass” method of

acquiring his billing information, were sufficiently detailed to make out an EFTA

claim based on an “unauthorized electronic fund transfer.” Webloyalty’s reliance

on the Second Circuit’s dismissal of a somewhat similar EFTA claim in L.S. v.

Webloyalty.com, Inc. is misplaced, because in that case, the plaintiff “[did] not allege

that he relied on the coupon offer in enrolling for the program.”               L.S. v.

Webloyalty.com, Inc., No. 15-3751, 2016 WL 7402617, at *2 (2d Cir. Dec. 20, 2016)

(unpublished) (emphasis supplied).

      Under California agency law, applicable here, “actual authority” could only

have been created either “intentionally,” or by negligently allowing Webloyalty to

believe that it possessed such authority. CAL. CIV. CODE § 2316. Park pled that he

did not realize he was dealing with a company other than Gamestop, and that he “had

no idea that he . . . authorized Webloyalty to charge his debit card for monthly

membership fees.” Park also pled that Webloyalty used the “data pass” method to

obtain his billing information in order to avoid “alert[ing] him that he was entering

a separate financial transaction with a third party.” Drawing all inferences in Park’s

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favor, the SAC adequately alleged that Webloyalty sought to avoid alerting Park of

the need to inquire into whether he was entering an agency relationship with a third-

party. Indeed, according to a United States Senate Report incorporated by reference

into the complaint, a Webloyalty employee admitted that “at least 90% of our

members don’t know anything about the membership.” Ex. 1 to the SAC at 6, Park

v. Webloyalty.com, Inc., No. 12-cv-1380 (S.D. Cal. Sept. 29, 2014), ECF No. 24-1.

      Moreover, with respect to the “receipt of benefits” element of the § 1693a(12)

cause of action, Park pled that he was unaware that he had enrolled in Complete

Savings, making it impossible for him to get any benefit from the coupons associated

with the program. The finding of the Senate Report, that “[m]ost consumers enrolled

in the clubs cancel their memberships when they discover the monthly charge and

never receive any benefit from their club membership,” lent additional plausibility

to this allegation. Id. (emphasis supplied).

      The second subsection of EFTA at issue here requires that a consumer must

be provided with a copy of the electronic fund transfer authorization. See 15 U.S.C.

§ 1693e(a). Park’s allegations regarding his lack of knowledge of the purported

authorization, and Webloyalty’s failure to provide a copy of such authorization, were

sufficient on their face. Although the district judge’s reliance on Webloyalty’s

exhibits tainted his analysis of the entire complaint, here it was the only ground upon

which he relied to overcome the sufficiency of these allegations. See Park v.

                                          4
Webloyalty.com, Inc., No. 12-cv-1380, 2014 WL 4829465, at *8. As the Second

Circuit observed in L.S., whether or not these documents were accurate and authentic

“was a determination properly made on summary judgment, not in response to a

motion to dismiss.” 2016 WL 7402617, at *5.

II.    Park’s ECPA Claim and California Privacy Claims Must Be Dismissed

       The Electronic Communication Privacy Act (“ECPA”) imposes liability on

anyone who “intentionally intercepts . . . or procures any other person to intercept”

any electronic communication. 18 U.S.C. § 2511(1)(a).           Park admitted that

Webloyalty was the intended recipient of the billing information he claims was

intercepted. The fact that Gamestop sent the information to Webloyalty, even if Park

did not want it to, means that Webloyalty did not “intercept” it. The district court

also properly dismissed Park’s privacy-based claims, because Park failed to allege

“conduct by defendant constituting a serious invasion of privacy.” Hill v. Nat’l

Collegiate Athletic Ass’n, 7 Cal. 4th 1, 40 (1994) (emphasis supplied).

III.   Other State Law Claims

       With the exception of the privacy-based state law claims just discussed, the

district court’s dismissal of Park’s other state law claims depended on its erroneous

holding that Park had not pled facts to show the EFT was unauthorized. Moreover,

Park’s allegations supported claims against Webloyalty, under California’s and

Connecticut’s similar unfair trade practices statutes, independent of whether there

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was an unauthorized transfer.     Cf. L.S., 2016 WL 7402617, at *2–3.         These

allegations aside, the California and Connecticut unfair trade practices statutes at

issue “borrow[] violations of other laws and treat[] them as unlawful practices

that . . . [they] make[] independently actionable.” Cel-Tech Commc’ns, Inc. v. L.A.

Cellular Tel. Co., 973 P.2d 527, 539–40 (Cal. 1999); see also Ventres v. Goodspeed

Airport, LLC, 881 A.2d 937, 969 (Conn. 2005). One of those “other laws” is 15

U.S.C. § 8402—also known as the Restore Online Shoppers’ Confidence Act

(“ROSCA”). While the parties have briefed the retroactive effect of ROSCA, there

is no need for us to resolve that issue at this time, because Park’s unfair trade

practices claims survive dismissal on other grounds.

IV.   Conclusion

      We REVERSE the dismissal of Park’s various federal and state causes of

action, with the exception of his ECPA claim and privacy-based state law claims,

which we AFFIRM. Park’s SAC was also dismissed because his EFTA claims were

time-barred. The district court held that the proposed Third Amended Complaint

had cured this problem. Nevertheless, it denied the motion to amend because it

dismissed the complaint on other grounds. We therefore VACATE the district

court’s order denying leave to amend.




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