Morrell v. WW Int'l, Inc.

• Decision Date: 27 July 2021
• Docket Number: 20-cv-9912 (JGK)
• Citation: 551 F.Supp.3d 173
• Parties: Lee MORRELL, individually and on behalf of all others similarly situated, Plaintiff, v. WW INTERNATIONAL, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

551 F.Supp.3d 173

Lee MORRELL, individually and on behalf of all others similarly situated, Plaintiff,

v.WW INTERNATIONAL, INC., Defendant.

20-cv-9912 (JGK)

United States District Court, S.D. New York.

Signed July 27, 2021

Frederick John Klorczyk, Philip Lawrence Fraietta, Bursor & Fisher, P.A., New York, NY, for Plaintiff.

Collie Fitch James, IV, Morgan Lewis, Costa Mesa, CA, Jonathan Herman Levy, Morgan Lewis & Bockius, LLP, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiff, Lee Morrell, brings this putative class action on behalf of himself and all others similarly situated against the defendant, WW International, Inc. ("WW"), alleging violations of California state consumer protection laws. The plaintiff brings five California state law claims: (1) violation of the Unfair Competition Law (the "UCL"), Cal. Bus. & Prof. Code §§ 17200 et seq. ; (2) violation of the False Advertising Law (the "FAL"), Cal. Bus. & Prof. Code §§ 17500 et seq. ; (3) violation of the Consumers Legal Remedies Act (the "CLRA"), Cal. Civ. Code §§ 1750 et seq. ; (4) unjust enrichment or restitution; and (5) violation of the Weight Loss Contracts Act (the "WLCA"), Cal. Civ. Code §§ 1694.5 et seq. The first four claims are based on allegations that the defendant violated California's Automatic Renewal Law (the "ARL"), Cal. Bus. & Prof. Code §§ 17600 et seq. The plaintiff asserts subject matter jurisdiction pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d), alleging that there are more than one hundred class members, the aggregate amount in controversy exceeds five million dollars, and there is diversity of citizenship in that most of the plaintiffs are citizens of California and the defendant is a citizen of Virginia and New York. The defendant moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, the motion to dismiss is granted in part and denied in part .

I.

The following allegations are accepted as true for purposes of the defendant's motion to dismiss.

WW is an international company incorporated in Virginia, with its principal place of business in New York. Complaint ("Compl."), ECF No. 1, ¶¶ 1, 11. WW offers monthly and yearly subscriptions to assist customers in developing healthy habits. Id. ¶ 1. Subscription plans include services ranging from meal tracking to personal coaching and in-person wellness checks. Id. ¶ 2. These subscriptions can be purchased through the defendant's website or mobile application. Id. ¶ 3.

The plaintiff is a citizen and resident of California. Id. ¶ 10. On or around January 3, 2018, the plaintiff purchased a three-month membership from the defendant, using the defendant's mobile application while in California. Id. On January 4, 2018, the plaintiff was charged $44.85 for this three-month membership. Id. ¶ 55. On April 4, 2018—three months after the plaintiff originally signed up for his WW Subscription—the defendant automatically renewed the plaintiff's subscription, charging him the standard monthly rate of $19.95. Id. ¶¶ 10, 55. The defendant continued to charge the plaintiff $19.95 per month for the next sixteen months. Id. ¶ 55. The plaintiff alleges that none of these "eighteen ... charges amounting to $384.00" were authorized. Id. ¶ 10; see also id. ¶ 55. The plaintiff asserts that at some point during January 2018—the month in which he subscribed to WW—he became ill with an auto-immune disorder that prevented him from using his arms or legs, and he "immediately discontinued use of the WW App and any and all other products and services associated with his WW Subscription." Id. ¶ 54. However, because the plaintiff "was not expecting the WW Subscription to automatically renew, the thought of cancelling his WW Subscription never occurred" to the plaintiff. Id.

The plaintiff brings this putative class action on behalf of "all persons in California who, within the applicable statute of limitations period ... incurred renewal fee(s) in connection with [the d]efendant's WW Subscription offerings." Id. ¶ 64.

Before a customer finalizes a purchase through WW's website or mobile application, the potential customer is directed to a checkout page. Id. ¶ 37. On this page, the customer is given information about the subscription plan and pricing ("Initial Disclosure"). Id. The Initial Disclosure, as displayed on the checkout page and as available to the plaintiff before he completed his purchase, is reproduced below:

Id.

After the customer checks off the required disclaimer box and submits the form, thus completing the purchase, the customer receives an acknowledgment email ("Acknowledgement Email"). Id. ¶ 10. The Acknowledgment Email includes information about the payment and selected plan, with a sentence stating that the "subscription will be automatically renewed at the end of [the] payment plan at the standard monthly rate." Id. ¶ 46. The Acknowledgment Email that was sent to the plaintiff after he completed his purchase is reproduced below:

Id.

The plaintiff alleges that he was not aware that his subscription would renew automatically when he purchased it. Id. ¶ 10. Indeed, the plaintiff alleges that he did not discover the autorenewal and subsequent charges until the defendant notified him that his payment authorization had failed on September 3, 2019. Id. ¶ 56. The plaintiff alleges that neither the Initial Disclosure nor the Acknowledgment Email alerted him to "the fact that his WW Subscription would automatically renew after the initial three-month period." Id. ¶ 10.

In the Complaint, the plaintiff has provided examples of other WW customers raising similar grievances about WW's automatic renewal of subscriptions on social media and consumer protection websites such as the site for the Better Business Bureau. See id. ¶¶ 19-23.

II.

When presented with motions under both Federal Rule of Civil Procedure 12(b)(1) to dismiss for lack of subject matter jurisdiction and Federal Rule of Civil Procedure 12(b)(6) to dismiss for failure to state a claim upon which relief can be granted, the first issue is whether the Court has the subject matter jurisdiction necessary to consider the merits of the action. See Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) ; Abrahams v. App. Div. of the Sup. Ct., 473 F. Supp. 2d 550, 554 (S.D.N.Y. 2007), aff'd on other grounds, 311 F. App'x 474 (2d Cir. 2009) ; see also SEC v. Rorech, 673 F. Supp. 2d 217, 220–21 (S.D.N.Y. 2009).¹

To prevail against a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of proving the Court's jurisdiction by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In considering such a motion, the Court generally must accept the material factual allegations in the complaint as true. See J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004). The Court does not, however, draw all reasonable inferences in the plaintiff's favor. Id.; Graubart v. Jazz Images, Inc., No. 02-cv-4645, 2006 WL 1140724, at *2 (S.D.N.Y. Apr. 27, 2006). Indeed, where jurisdictional facts are disputed, the Court has the power and the obligation to consider matters outside the pleadings, such as affidavits, documents, and testimony, to determine whether jurisdiction exists. See APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003) ; Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). When evaluating whether a plaintiff has constitutional standing to sue, the courts "borrow from the familiar Rule 12(b)(6) standard, construing the complaint in plaintiff's favor and accepting as true all material factual allegations contained therein." Donoghue v. Bulldog Invs. Gen. P'ship, 696 F.3d 170, 173 (2d Cir. 2012).

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id.

III. Rule 12(b)(1)

The defendant has moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1), arguing that the Court does not have subject matter jurisdiction over the plaintiff's claim because the plaintiff lacks standing. For the reasons that follow, the defendant's 12(b)(1) motion is denied.

To satisfy the constitutional requirement of Article III standing, the plaintiff "must show (i) that [the plaintiff] suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief." TransUnion LLC v. Ramirez, ––– U.S. ––––, 141 S. Ct. 2190, 2203, 210 L.Ed.2d 568 (2021) ; see also Crupar-Weinmann v. Paris Baguette Am., Inc., 861 F.3d 76, 79-80 (2d Cir. 2017) (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 136 S. Ct. 1540, 1545, 1548, 194 L.Ed.2d 635 (2016) ...