New Vision Unlimited, LLC v. Glasses U.S., Inc.
| Decision Date | 17 May 2023 |
| Docket Number | Civil Action 22-22534-Civ-Scola |
| Parties | New Vision Unlimited, LLC, dba Vision Unlimited, individually and on behalf of all others similarly situated, Plaintiff, v. Glasses USA, Inc., and others, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
ORDER DENYING MOTION TO DISMISS
Plaintiff New Vision Unlimited, LLC, an optical goods and services provider, brings this putative class action against four online contact-lens retailers-Defendants Optimax Investments Ltd.; Lens.com, Inc.; Web EyeCare, Inc.; and Contact Lens King, Inc.-alleging that they each engaged in false advertising in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B). (Am. Compl., ECF No. 51 (“Compl.” or the “Complaint”).) In response, the Defendants have jointly filed a motion to dismiss, submitting New Vision has failed to state a claim for false advertising under the Lanham Act. (Defs.' Jt Mot. to Dismiss, ECF No. 56.) New Vision responded (Pl.'s Resp., ECF No. 57), opposing the motion, and thereafter the defendants timely replied (Defs.' Reply, ECF No. 58). Previously the Court granted the Defendants' motion for a stay in this case, concluding that, upon a “preliminary peek” of the motion-to-dismiss briefing, the Court found at least one of the Defendants' arguments appeared to be clearly meritorious and truly case dispositive. Upon a more fulsome review, however, the Court finds to the contrary, and denies the Defendants' motion to dismiss (ECF No. 56) and accordingly, lifts the stay of discovery.
New Vision is an eye-care professional and provider of optical goods and services, including contact lens fittings and contact lens sales. (Compl. ¶¶ 10, 20.) New Vision has seven brick and mortar locations in the Miami area and two websites. (Id. ¶ 10.) The Defendants are four unrelated online retailers of optical products, including corrective contact lenses. (Id. ¶¶ 1, 11-14, 27.)
The Defendants promote their lenses through Google and other search engines, advertising low prices. (Id. ¶ 1.) These advertised prices are “far lower” than the prices New Vision and other “honest” retailers advertise. (Id.) Because consumers of contact lenses are very price conscious (e.g., id. ¶ 25), they are drawn to the Defendants' ads .
But, says New Vision, the Defendants' advertised prices are not truthful: only after a customer has filled out online forms, providing details about her prescriptions, contact information for her doctor (to verify her prescription), and certain biographical and payment information, do the Defendants reveal there is a “processing fee” added to the order. (Id. ¶¶ 3-4, 28, 32-33.) This added fee results in the charge for the order being about twice the initially advertised cost. (Id. ¶¶ 4, 33, 81.) This final cost ends up being “about the same as the prices honest retailers such as Plaintiff advertise, because this is the true market price.” (Id. ¶¶ 4, 33.)
On the one hand New Vision says that the Defendants “do everything they can to hide the extra fee on their checkout pages” and, as a result, “many times,” “consumers do not even notice that the total amount they are being charged for the order is about the same as what they would have paid if they bought from [New Vision].” (Id. ¶¶ 5, 34, 50, 68, 84, 102.) On the other hand, New Vision includes screenshots in its complaint, showing the processing fee's being presented in plain type, in normal-size font,[2] in the middle of the secure checkout page on, for example, Optimax's website. (Id. ¶ 46; see also ¶¶ 78, 80, (similar display of a “processing fee” on Web Eye Care's website).) Similarly, on Lens.com's website, a comparable “fee” is added into a line item labeled “Taxes and fees.” (Id. ¶ 63.) Contact Lens King's reference to the processing fee is along the same lines although, unlike the other Defendants, Contact Lens King recites on the first page of its ordering procedure that “[a] processing fee will apply.” (Id. ¶ 96.)
New Vision says that even if customers do notice the extra fee, they go through with the purchase anyway. According to New Vision this is because, at least in the case of Optimax, Web Eye Care, and Lens.com, the customers have already invested so much time and effort, inputting various information into the Defendants' systems and “don't want to start over” or bother driving back to their optometrist-especially when the final tally is comparable to other retailers, like New Vision. (Id. ¶¶ 6, 34, 52-53, 70-71, 85-86, 103-04.) Other customers still, New Vision proffers, mistakenly believe all contact-lens retailers charge similar “processing fees.” (Id. ¶¶ 34, 51. 69.)
New Vision complains that the Defendants' practices amount to false advertising under the Lanham Act and seeks damages and other relief on its own behalf and on behalf of a proposed class of similarly situated plaintiffs.
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all the complaint's allegations as true, construing them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). A plaintiff must articulate “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Thus, a pleading that offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” will not survive dismissal. See Twombly, 550 U.S. at 555. “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 679.
Yet, where the allegations “possess enough heft” to suggest a plausible entitlement to relief, the case may proceed. See Twombly, 550 U.S. at 557. “[T]he standard ‘simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence' of the required element.” Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008). “And, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.'” Twombly, 550 U.S. at 556. 3. Analysis
To state a claim of false advertising under the Lanham Act, a plaintiff must allege that “(1) the advertisements of the opposing party were false or misleading; (2) the advertisements deceived, or had the capacity to deceive, consumers; (3) the deception had a material effect on purchasing decisions; (4) the misrepresented product or service affects interstate commerce; and (5) the movant has been-or is likely to be-injured as a result of the false advertising.” Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260-61 (11th Cir. 2004). The Defendants maintain that New Vision fails to allege facts establishing the first, second, third, and fifth elements of its false-advertising claim. After careful review, the Court is not persuaded.
The Defendants argue (1) that their ads are “literally true” because consumers can actually purchase one box of the advertised contact lenses for the published price; and (2) even if the ads are construed as being either false or misleading, any conceivable deception is cured by the Defendants' full disclosure of the added processing fees prior to the consummation of the purchase. (Defs.' Mot. at 10-14.) The Court is not persuaded by either argument.
“The first element of the Lanham Act test requires that the plaintiff show that the statements at issue were either (1) commercial claims that are literally false as a factual matter or (2) claims that may be literally true or ambiguous but which implicitly convey a false impression, are misleading in context, or likely to deceive consumers.” Hickson, 357 F.3d at 1261 (cleaned up).
As to their claim that their ads are literally true, the Defendants submit that, contrary to New Vision's allegations “consumers can purchase one box of the advertised contact lenses for that price on Defendants' respective websites after clicking on the online ads.” (Defs.' Mot. at 11.) In support, the Defendants supply screenshots from each of their websites, showing that no processing fee is added to a consumer's purchase when only one box is selected. (Defs.' Ex. 1, ECF No. 56-1.) The Defendants also assert that New Vision has not identified “a single advertisement from any Defendant making representations, let alone false representations, about the total final price of ordering multiple boxes of contacts.” (Defs.' Mot. at 11.) The Court is not persuaded by either...
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