Ferron v. EchoStar Satellite, LLC

• Decision Date: 29 September 2009
• Docket Number: Case No. 2:06-CV-00453
• Citation: 727 F.Supp.2d 647
• Parties: John W. FERRON, Plaintiff, v. ECHOSTAR SATELLITE, LLC, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

727 F.Supp.2d 647

John W. FERRON, Plaintiff,

v.ECHOSTAR SATELLITE, LLC, et al., Defendants.

Case No. 2:06-CV-00453.

United States District Court,

S.D. Ohio,

Eastern Division.

Sept. 29, 2009.

Lisa A. Wafer, Jessica G. Fallon, Ferron & Associates, Columbus, OH, for Plaintiff.

Vincent J. Trimarco, Sr., Smithtown, NY, for Defendant.

AMENDED OPINION AND ORDER

MICHAEL H. WATSON, District Judge.

Plaintiff in this diversity action asserts claims under the Ohio Consumer SalesPractices Act ("OCSPA"), Ohio Rev.Code § 1345.01 et seq., and the Ohio Electronic Mail Advertising Act ("EMAA"), Ohio Rev.Code § 2307.64. This matter is before the Court on the motion for summary judgment filed by defendants EchoStar Satellite LLC ("EchoStar") and E-management Group, Inc. ("E-Management") (collectively, "defendants"). (Doc. 291). For the reasons that follow the Court grants defendants' summary judgment motion.

I. Facts

Plaintiff John W. Ferron is an attorney who lives and practices law in the State of Ohio. He purposely solicits, receives, and saves email advertisements, and then files lawsuits, arguing the email advertisements violate Ohio law. Ferron estimates he has saved about 45,000 email advertisements over a six month period.

The instant lawsuit concerns emails that Ferron received which advertised the satellite dish products and services of Dish Network. Ferron has indicated he visited about twelve satellite dish websites and purposely provided his email addresses to those sites. Before he provided his email addresses to the websites, Ferron contacted Dish Network call centers to obtain information about the terms and conditions of various Dish Network products and services.

Ferron filed this action after he collected a large number of satellite dish email advertisements. Ferron alleges that the email advertisements he received were deceptive in their price quotes, offers of free equipment, and terms of subscription. Ferron was previously aware of terms and conditions for obtaining Dish Network service and products as a result of his correspondence with the Dish Network call centers.

EchoStar provides Dish Network products and services throughout the United States. EchoStar provides these products to retailers, not to individual customers. The retailers then sell products to individual customers, and are responsible for their own marketing and advertising. These retailers often hire third-parties to market their products, without correspondence with EchoStar. EchoStar has no input regarding email advertising, which is sometimes utilized by a retailers to market Dish Network products.

E-Management is a registered Florida Corporation that operates primarily in Florida. E-Management is an authorized retailer of EchoStar, and is also authorized to market for Dish Network products and services. E-Management communicates with a potential customer, if a sale is made, E-Management forwards the customer information to EchoStar.

II. Summary Judgment

The standard governing summary judgment is set forth in Federal Rule of Procedure 56(c), which provides:

The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c).

The Court may grant summary judgment if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Petty v. Metropolitan Government of Nashville-Davidson County, 538 F.3d 431, 438-39 (6th Cir.2008).

When reviewing a summary judgment motion, the Court must draw all reasonable inferences in favor of the nonmoving party, who must set forth specific facts showing that there is a genuine issue of material fact for trial, and the Court must refrain from making credibility determinations or weighing the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Henderson v. Walled Lake Consol. Schools, 469 F.3d 479, 487 (6th Cir.2006). The Court disregards all evidence favorable to the moving party that the jury would not be not required to believe. Reeves, 530 U.S. at 150-51, 120 S.Ct. 2097. Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th Cir.2009).

Thus, the central issue is " 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 234-35 (6th Cir.2003) (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505).

III. Discussion

Defendants advance seven grounds for summary judgment. First, they maintain Ferron's OCSPA claims fail because Ferron had prior knowledge of the terms and conditions for the purchase of DISH Network products, and therefore he could not have been deceived by emails which did not contain the terms and conditions. Second, defendants contend the omitted terms and conditions were merely incidental and not material. Third, EchoStar argues that it is entitled to summary judgment on Ferron's OCSPA and EMAA claims because it did not receive a direct benefit from the third-party email advertisements. Fourth, defendants assert Ferron cannot prove any OCSPA violations with respect to 155 of the 703 emails at issue in this case. Fifth, defendants aver that Ferron's preexisting business relationship and consent to receive the email advertisements precludes liability under the EMAA. Sixth, defendants posit that the subject email advertisements are not "offers" or "solicitations to offer" and therefore do not support liability under the OCSPA. Seventh, defendants maintain Ferron cannot prevail on his OCSPA claims concerning the failure to register the business with the Ohio Secretary of State because the registration requirement does not apply to companies engaged solely in interstate commerce, and because in any event, the failure to register is not an actionable wrong under the OCSPA. The Court finds the first issue to be dispositive, and therefore declines to address the remaining grounds.

Defendants first argue that they are entitled to summary judgment on Ferron's OCSPA claims because Ferron was already aware of the terms and conditions for the purchase of DISH Network products and services, and therefore he could not have been deceived by emails that did not contain the terms and conditions. Ferron asserts that he is not required to prove that he was deceived in order to prevail on his OCSPA claims.

The purpose and history of the OCSPA were reviewed in Thomas v. Sun Furniture and Appliance Co., 61 Ohio App.2d 78, 399 N.E.2d 567 (1978). The court in Thomas observed that the OCSPA was modeled, in part, after the Uniform Consumer Sales Practices Act ("UCSPA"). 61 Ohio App.2d at 81, 399 N.E.2d 567. The UCSPA provided that it was to be construed " 'to protect consumers from suppliers who commit deceptive and unconscionablesales practices [and] to encourage the development of fair consumer sales practices.' " Id. (quoting 7A Uniform Laws Anno. 3, Uniform Consumer Sales Practices Act, Section 1 (1978)). The court in Thomas also considered the staff report of the Ohio Legislative Service Commission, which stated in its preface:

Deception is the classic consumer problem. From an early time the law has provided remedies for the buyer who has been deceived. As marketing and consumer services have become more complex, the private remedies of the common law, and traditional criminal actions, have become relatively ineffective as a means by which the consumer may protect himself, and the government has intervened.

Id. (quoting Ohio Legislative Service Commission, Report No. 102, Fraud, Deception and Other Abuses in Consumer Sales and Services (1971)).

The purpose of the CSPA is to protect consumers from the harm of deceptive or unconscionable sales practices. Roelle v. Orkin Exterminating Co. (Nov. 7, 2000), Franklin App. No. 00AP-14, 2000 WL 1664865. The statute is intended to give protection to consumers from unscrupulous suppliers of goods or services in a more efficient, expedient, and affordable manner than would be available in a common law tort or contract action. State ex rel. Celebrezze v. Howard (1991), 77 Ohio App.3d 387, 393, 602 N.E.2d 665. The CSPA has a remedial purpose and must accordingly be liberally construed in favor of consumers. Einhorn v. Ford Motor Co. (1990), 48 Ohio St.3d 27, 29, 548 N.E.2d 933.

Charvat v. Farmers Ins. Columbus, Inc., 178 Ohio App.3d 118, 133, 897 N.E.2d 167 (2008).

Ferron asserts his OCSPA claims under, inter alia, Ohio Rev.Code § 1345.02(A), which provides as follows:

No supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction. Such an unfair or deceptive act or practice by a supplier violates this section whether it occurs before, during, or after the transaction.

Id. The OCSPA defines "supplier" as "a seller, lessor, assignor, franchisor, or other person engaged in the business of effecting or soliciting consumer transactions, whether or not the person deals directly with the consumer." Ohio Rev.Code § 1345.01(C). The OCSPA defines "consumer transaction" as "a sale, lease, assignment, award by chance, or other transfer of an item of goods, as service, a franchise, or an intangible, to an individual for purposes that are...