In Park v. Webloyalty.com, Inc., 2017 WL 1149516, at *1–2 (C.A.9 (Cal.), 2017), the Court of Appeals for the Ninth Circuit said the following facts gave rise to a proper EFTA claim. “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 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.” The Court of Appeals held:
Park alleges violations of two sections of EFTA. The first is that Webloyalty initiated an “unauthorized electronic fund transfer”—that is, “an electronic fund 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 L.S. v. Webloyalty.com, Inc., No. 15-3751, 2016 WL 7402617, at *2 (2d Cir. Dec. 20, 2016) (unpublished) (emphasis supplied).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 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. 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.