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Filed 9/30/10 Kershenbaum v. Buy.com CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
RICHARD M. KERSHENBAUM,
Plaintiff and Appellant,
v.
BUY.COM, INC.,
Defendant and Respondent.
FOURTH APPELLATE DISTRICT
DIVISION THREE
G042303
(Super. Ct. No. 07CC01336)
O P I N I O N
Appeal from an order of the Superior Court of Orange County,
Gail Andrea Andler, Judge. Reversed with directions.
Brodsky & Smith, Evan J. Smith; David P. Meyer & Associates Co. and
Matthew R. Wilson for Plaintiff and Appellant.
Rutan & Tucker, Michael T. Hornak, Lisa N. Neal and Zack Broslavsky for
Defendant and Respondent.
* * *

INTRODUCTION
Richard M. Kershenbaum did not receive an advertised rebate on a product
he purchased through Buy.com, Inc.’s Web site. Buy.com contended the rebate was
offered by the product manufacturer, and it was therefore not responsible for
compensating Kershenbaum. Kershenbaum sued Buy.com, and sought class certification
of the lawsuit. The trial court denied the motion, and Kershenbaum appeals. We reverse.
The trial court erred in denying the motion for class certification. The
different definitions of the proposed class contained in the memorandum of points and
authorities and the proposed order did not warrant denial of the motion for lack of
ascertainability. Any confusion caused by the different definitions could and should have
been remedied by the trial court, either by correcting the proposed order, or by
independently drafting a new order.
We further conclude the trial court erred in denying the motion on the
ground that common questions of law did not predominate. The California choice-of-law
provision in Buy.com’s terms of use agreement applies to the claims asserted by the
class. Even if the choice-of-law provision did not apply, class certification was still
appropriate because significant contacts with California have been shown to exist, and
Buy.com cannot demonstrate that any foreign law, rather than California law, should
apply to the class claims.
the class were vague.
We also conclude the trial court erred in determining the claims asserted by
Finally, Kershenbaum had standing to assert a claim for misleading
advertising; the trial court erred in determining otherwise.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On February 5, 2007, Kershenbaum purchased a Connect 3D memory card
from Buy.com for $30, with a $30 mail-in rebate. Kershenbaum sent in the appropriate
2

ebate forms, and was approved to receive the $30 rebate. Connect 3D, however, failed
to pay the rebate. In July 2007, Buy.com offered those customers who had not received
their rebates a $10 gift certificate.
Kershenbaum filed a class action lawsuit against Buy.com. In his second
amended complaint (which is the operative complaint), Kershenbaum alleged causes of
action against Buy.com for violations of the unfair competition law (Bus. & Prof. Code,
§ 17200 et seq.) (UCL) and the Consumers Legal Remedies Act (Civ. Code, § 1750 et
seq.) (CLRA), and for negligent misrepresentation.
On December 10, 2008, Kershenbaum filed a renewed motion for class
certification. (Kershenbaum’s original motion for class certification was denied without
prejudice for failure to meet his burden of showing an ascertainable class.) The trial
court denied Kershenbaum’s renewed motion for class certification. The court’s order
reads, in relevant part, as follows: “Plaintiff’s Motion for Renewed Class Certification,
assuming it is meant to be a new class certification motion, is denied based on the
following grounds: [] a. Plaintiff presented the Court with three different definitions of
the class. There are two differing definitions in the Points and Authorities . . . and there
is a third definition in the Proposed Order. Therefore, Plaintiff has not proven that there
is an ascertainable class. [] b. Additionally, it is vague as to what claims Plaintiff
asserts against Buy.com: the failure of Buy.com to perform ‘due diligence’ as to Connect
3D’s financial condition, or misleading advertising. [] c. If Plaintiff is asserting
‘misleading advertising,’ i[t] appears the proposed class representative lacks standing, in
that he testified he did not rely on any of Buy.com’s representations or omissions before
purchasing the Connect 3D rebated products. [] d. Plaintiff has not established that
common issues of law predominate.” Kershenbaum timely appealed from the order
denying the motion for class certification.
3

DISCUSSION
I.
STANDARD OF REVIEW AND STANDARDS FOR CLASS CERTIFICATION
“Because trial courts are ideally situated to evaluate the efficiencies and
practicalities of permitting group action, they are afforded great discretion in granting or
denying certification. . . . [I]n the absence of other error, a trial court ruling supported by
substantial evidence generally will not be disturbed ‘unless (1) improper criteria were
used [citation]; or (2) erroneous legal assumptions were made [citation]’ [citation].
Under this standard, an order based upon improper criteria or incorrect assumptions calls
for reversal ‘“even though there may be substantial evidence to support the court’s
order.”’ [Citations.] Accordingly, we must examine the trial court’s reasons for denying
class certification. ‘Any valid pertinent reason stated will be sufficient to uphold the
order.’ [Citation.]” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436.)
“‘Code of Civil Procedure section 382 authorizes class suits in California
when “‘the question is one of a common or general interest, of many persons, or when the
parties are numerous, and it is impracticable to bring them all before the court.’ To
obtain certification, a party must establish the existence of both an ascertainable class and
a well-defined community of interest among the class members. [Citations.] The
community of interest requirement involves three factors: ‘(1) predominant common
questions of law or fact; (2) class representatives with claims or defenses typical of the
class; and (3) class representatives who can adequately represent the class.’ [Citation.]”’
[Citation.]” (Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830,
843.) As the moving party, Kershenbaum bore the burden of proving all the elements for
class certification. (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.)
4

II.
IS THE CLASS ASCERTAINABLE?
The trial court found the class was not ascertainable because Kershenbaum
had offered multiple definitions of the class in his motion papers: “Plaintiff presented the
Court with three different definitions of the class. There are two differing definitions in
the Points and Authorities . . . and there is a third definition in the Proposed Order.
Therefore, Plaintiff has not proven that there is an ascertainable class.” The
memorandum of points and authorities in support of the renewed motion for class
certification defined the proposed class as follows: “All persons in the United States who
purchased a Connect 3D product from Defendant Buy.com, Inc. (‘Buy.com’) that
included a rebate offer and whose rebate submissions were approved for payment. []
Excluded from the Class are the Court, Defendant, its affiliates, employees, officers and
directors, and anyone who was paid his or her rebate by Buy.com.” (Fn. omitted.) 1 The
proposed order, however, defined the proposed class as follows: “All persons in the
United States who purchased a Connect 3D product (including Hannspree products) from
Defendant Buy.com, Inc. (‘Buy.com’) that included a rebate offer and whose rebate
submissions were approved for payment. Excluded from the Class are the Court,
Defendant, its affiliates, employees, officers and directors, and anyone who was paid his
or her rebate by Buy.com.” (Italics added.) Nowhere in the renewed motion for class
certification are Hannspree products mentioned.
Kershenbaum’s appellate briefs simply ignore this issue on which the trial
court based its order denying class certification. Kershenbaum merely reiterates that
1 The other definition of the class in the memorandum of points and authorities
reads: “All persons in the United States who purchased a Connect 3D product from
Buy.com that included a rebate offer and whose rebate submissions were approved for
payment. [] Excluded from the Class are the Court, Defendant, its affiliates, employees,
officers and directors, and anyone who was paid his or her rebate by Buy.com.” These
definitions are not appreciably different. To conclude the class was not ascertainable
based on these two different definitions clearly constitutes an abuse of discretion.
5

Buy.com has all the necessary information about the individuals who purchased
“Connect3D rebate eligible products.” The problem is that Kershenbaum never states
whether the purchasers of Hannspree products are within this group. 2 “‘Ascertainability
is required in order to give notice to putative class members as to whom the judgment in
the action will be res judicata.’ [Citations.] The representative plaintiff need not identify
the individual members of the class at the class certification stage in order for the class
members to be bound by the judgment. [Citation.] As long as the potential class
members may be identified without unreasonable expense or time and given notice of the
litigation, and the proposed class definition offers an objective means of identifying those
persons who will be bound by the results of the litigation, the ascertainability requirement
is met.” (Medrazo v. Honda of North Hollywood (2008) 166 Cal.App.4th 89, 101.)
Kershenbaum argues that even if the class was not adequately defined, the
trial court had the discretion to redefine the class, quoting from Hicks v. Kaufman &
Broad Home Corp. (2001) 89 Cal.App.4th 908, 916: “Furthermore, if necessary to
preserve the case as a class action, the court itself can and should redefine the class where
the evidence before it shows such a redefined class would be ascertainable.” Although
Kershenbaum does not state it explicitly, presumably he means to argue that the trial
court should have removed the reference to Hannspree products from the class definition
in the proposed order.
2 At oral argument, Kershenbaum’s counsel advised the court that the inclusion of
the reference to Hannspree products in the proposed order was intended to avoid
confusion about the scope of the class. Specifically, counsel stated that six products sold
by Connect 3D were subject to rebates which were never paid; four of those products
were sold under the Connect 3D name, while the other two were sold under the
Hannspree name. Counsel could not, however, explain why the memorandum of points
and authorities did not also contain that language, speculating that the differing language
was the result of a “scrivener’s error.” Counsel conceded that by failing to ensure the
language of all the related documents contained the same definition, he caused far more
confusion than he prevented.
6

We agree with Kershenbaum that the class was defined in the memorandum
of points and authorities and the court’s reason for denying the motion was legally
erroneous. The trial court did not find anything in that definition that made the class
unascertainable. If the definition of the class contained in the proposed order did not
match that in the memorandum of points and authorities, the trial court could have
deleted the Hannspree reference from the proposed order, directed the prevailing party to
draft an order consistent with the court’s ruling, or drafted its own order. In failing to do
so, and instead denying the renewed motion for class certification for an improper reason,
the court erred. We reverse the order; the trial court is directed to issue a new order
finding ascertainability of a class defined in its discretion. The trial court has the
discretion to order additional briefing and a hearing in order to do so.
Buy.com also notes that the proposed class definition did not account for
the CLRA’s limitation to consumers. This argument was not raised in the trial court.
Even if we were to consider it, it does not affect our opinion.
Kershenbaum does not dispute that the CLRA claim may only provide
relief to those proposed class members who bought products for consumer use, not to
those who bought products for commercial use. (See Civ. Code, § 1761, subd. (d) [as
used in the CLRA, a consumer is “an individual who seeks or acquires, by purchase or
lease, any goods or services for personal, family, or household purposes”]; id., § 1780,
subd. (a) [“Any consumer who suffers any damage as a result of the use or employment
by any person of a method, act, or practice declared to be unlawful by Section 1770 may
bring an action against that person”].) Instead, Kershenbaum asserts, without any factual
support, that the products purchased by the proposed class in this case—memory cards
and televisions—“are no more likely to be purchased for business purposes than cars or
other vehicles,” which were the products purchased in other cases where the courts
granted class certification.
7

In Lazar v. Hertz Corp. (1983) 143 Cal.App.3d 128, 136, the plaintiff filed
a class action lawsuit against Hertz Corporation for violation of the CLRA, among other
claims, for charging outrageous sums to refuel rental cars which were returned unfilled.
The plaintiff conceded he did not rent a car from Hertz as a consumer, and was therefore
not a member of the proposed class. (Lazar v. Hertz Corp., supra, at p. 142.) The
appellate court reversed the trial court’s denial of a motion for class certification,
concluding in part that although the plaintiff could not represent the class, the case could
proceed as a class action with a new consumer plaintiff being permitted to intervene.
(Ibid.) Under the rule of Lazar v. Hertz Corp. (which was not cited or discussed by
Buy.com), a class may be certified for a case including a CLRA claim even though some
of the members of the class are not consumers. 3
III.
DO COMMON QUESTIONS OF LAW PREDOMINATE?
The trial court also denied the motion for class certification on the ground
that Kershenbaum had failed to establish common issues of law predominate. Buy.com
contends that because the class members are residents of all 50 states, and California law
regarding consumer protection claims differs materially from the laws of other states,
differences in the law to be applied to the UCL and CLRA claims will “swamp” the
common issues, making class certification inappropriate.
3 Kershenbaum also cites Lewis v. Robinson Ford Sales, Inc. (2007) 156
Cal.App.4th 359 and Medrazo v. Honda of North Hollywood, supra, 166 Cal.App.4th 89,
for the proposition that a case involving CLRA claims may be certified as a class action.
In both cases, which involved sales of motorcycles or other vehicles, some members of
the proposed classes may have intended to use the vehicles for commercial, not consumer
or household, purposes, and therefore could not properly be a part of a class asserting a
CLRA claim. In both cases, the appellate court reversed the order denying class
certification. In neither case, however, was the issue of the limitation of CLRA claims to
consumer plaintiffs raised. A judicial decision is not authority for a point that was not
raised and resolved. (Fairbanks v. Superior Court (2009) 46 Cal.4th 56, 64.)
8

To determine whether the trial court abused its discretion in finding
common issues of law did not predominate, we consider whether a choice-of-law
provision applies, and if not, how to determine what law applies when violations of
California consumer protection laws are alleged in a case involving a potential
nationwide class. 4
The parties dispute whether an enforceable choice-of-law agreement exists
in this case. Buy.com’s Web site contains a choice-of-law provision in its terms of use
agreement: “This Terms of Use shall be governed by the laws of the State of California
without regard to or application of any conflict of laws provisions.” Buy.com argues
Kershenbaum’s claims do not arise out of the terms of use agreement, and therefore the
contractual choice-of-law provision does not apply. The terms of use agreement
provides: “READ CAREFULLY. This Terms of Use Agreement (‘Terms of Use’)
applies to use of the Buy.com website located at http://www.buy.com (the ‘Site’). The
Site is the property of Buy.com Inc. (together with its affiliated companies, including
without limitation, BuyMusic.com Inc. and BuyServices Inc., ‘Buy.com’). Before you
make any purchases, you must first establish a customer account (‘My Account’). BY
CLICKING ‘I HAVE READ, UNDERSTAND AND AGREE TO THE TERMS OF
USE,’ YOU AGREE TO THESE TERMS OF USE. IF YOU DO NOT AGREE, DO
NOT CLICK ON THE BUTTON AND DO NOT USE THE SITE.” (Boldface omitted.) 5
Buy.com concedes in its brief on appeal that the choice-of-law provision in
the terms of use agreement would apply to “all causes of action arising from or related to
4 California law applies when a California court is asked to consider the
applicability of a choice-of-law provision, whether that provision elects California law or
a foreign state’s law. (Discover Bank v. Superior Court (2005) 134 Cal.App.4th 886,
890-891.)
5 At oral argument, Buy.com’s counsel compared the choice-of-law provision in
Buy.com’s terms of use agreement to that in the Amazon.com terms of use agreement,
arguing Amazon’s provision is much broader. The terms of use agreements of other
online retailers are not in the appellate record, and are not properly before us.
9

that agreement, regardless of how they are characterized, including tortious breaches of
duties emanating from the agreement or the legal relationships it creates.” (Nedlloyd
Lines B.V. v. Superior Court (1992) 3 Cal.4th 459, 470 (Nedlloyd Lines).) At root, the
allegations in Kershenbaum’s second amended complaint are that Buy.com made
negligent misrepresentations on its Web site inducing the potential class members to
make purchases of Connect 3D products through the Buy.com Web site. Kershenbaum’s
claims arise from or are related to the agreement governing the use of the Buy.com Web
site. Therefore, we conclude the choice-of-law provision covers Kershenbaum’s claims. 6
Regarding contractual choice-of-law provisions, the Restatement Second of
Conflict of Laws, section 187, subdivision (2), provides: “The law of the state chosen by
the parties to govern their contractual rights and duties will be applied, even if the
particular issue is one which the parties could not have resolved by an explicit provision
in their agreement directed to that issue, unless either [] (a) the chosen state has no
substantial relationship to the parties or the transaction and there is no other reasonable
basis for the parties’ choice, or [] (b) application of the law of the chosen state would be
contrary to a fundamental policy of a state which has a materially greater interest than the
chosen state in the determination of the particular issue and which, under the rule of
§ 188, would be the state of the applicable law in the absence of an effective choice of
law by the parties.” Application of Restatement Second of Conflict of Laws, section 187,
subdivision (2), on this issue has been approved by the California Supreme Court. (See
Nedlloyd Lines, supra, 3 Cal.4th at pp. 464-465.)
6 Buy.com focuses on Kershenbaum’s claim, as asserted in response to Buy.com’s
motion for summary adjudication, that Buy.com failed to conduct due diligence on
Connect 3D. The distinction between the ways Kershenbaum has asserted his claims is
relevant to our analysis of the trial court’s finding that the claims are vague, discussed
post. It is not relevant to the present discussion of whether the choice-of-law provision
applies to Kershenbaum’s claims.
10

The California choice-of-law provision in Buy.com’s terms of use
agreement applies in this case. California has a substantial relationship to the parties and
the transaction; Buy.com is based in California, and all the transactions in question were
processed by Buy.com. Additionally, no other state has a materially greater interest than
California in the resolution of this case.
Buy.com’s terms of use agreement constitutes a contract of adhesion.
Choice-of-law provisions included in adhesion contracts are enforceable “where they are
otherwise appropriate.” (Washington Mutual Bank v. Superior Court (2001) 24
Cal.4th 906, 917 (Washington Mutual).) The analysis of Nedlloyd Lines and Restatement
Second of Conflict of Laws, section 187, subdivision (2), permits the weaker party to an
adhesion contract to argue that substantial injustice would result from enforcing the
choice-of-law provision, or that the contract was imposed through the unfair use of
superior bargaining power. (Washington Mutual, supra, at p. 918.) Here, however, it is
not the party with the weaker bargaining power that is arguing against the use of the
choice-of-law provision contained in the parties’ contract—it is the party that drafted the
choice-of-law provision and made it a part of its Web site’s terms of use agreement,
without the acceptance of which no other party could purchase goods through the
Web site.
Both Kershenbaum and Buy.com rely on the California Supreme Court’s
analysis in Washington Mutual. In that case, a borrower sued her lender for, among other
things, violating the UCL by purchasing expensive replacement insurance when the
borrowers defaulted on their loan obligation of maintaining hazard insurance.
(Washington Mutual, supra, 24 Cal.4th at p. 912.) The loan documents contained a
choice-of-law provision making federal law and the law of the state in which the secured
property was located applicable. (Ibid.) The trial court certified a nationwide class
without deciding what law would apply to the class members’ claims. (Id. at p. 913.)
The Supreme Court reversed the certification order, due to its incomplete and erroneous
11

analysis of the factors relevant to certification: “[W]e hold that a class action proponent
must credibly demonstrate, through a thorough analysis of the applicable state laws, that
state law variations will not swamp common issues and defeat predominance.
Additionally, the proponent’s presentation must be sufficient to permit the trial court, at
the time of certification, to make a detailed assessment of how any state law differences
could be managed fairly and efficiently at trial, for example, through the creation of a
manageable number of subclasses. Trial courts, in assessing the propriety of nationwide
class certification, must consider these factors, as well as all the other factors relevant to
certification, including the potential recovery of each individual claimant and whether the
proposed class suit is the only effective way to redress the alleged wrongdoing or to
prevent unjust advantage to the defendant. [Citations.] Adherence to these procedures
should ensure that nationwide class actions are certified only where they will result in
substantial benefits both to the litigants and the courts. [Citation.]” (Id. at p. 926,
fn. omitted.)
The analysis of Washington Mutual applies when there is an enforceable
choice-of-law agreement selecting the law of one or more other states, and the
challenging party asks the California courts to apply the foreign law. (Wershba v. Apple
Computer, Inc. (2001) 91 Cal.App.4th 224, 244 (Wershba).) Washington Mutual is not
applicable in the present case because the choice-of-law provision selected California
law. Indeed, the questions answered by the Supreme Court in Washington Mutual, supra,
24 Cal.4th at page 914, are as follows: “First, what is the appropriate analysis for
selecting applicable law in a class action where putative class members have
contractually agreed to application of another state’s law? Second, what analysis must be
undertaken in the event litigation of the class action will necessitate application of the
laws of multiple states?” For the reasons we have explained, neither of these questions is
implicated here because the parties chose California law as the applicable law.
12

Even if Buy.com were correct, and the California choice-of-law provision
did not apply to Kershenbaum’s claims, the relevant analysis would compel the same
conclusion. Where there is no enforceable choice-of-law agreement, “[s]o long as the
requisite significant contacts with California are shown to exist, sufficient to meet
constitutional standards, the burden is on the parties challenging the nationwide
certification to demonstrate that ‘foreign law, rather than California law, should apply to
class claims.’ [Citation.]” (Wershba, supra, 91 Cal.App.4th at p. 244.)
“‘Analysis of a choice of law question proceeds in three steps:
(1) determination of whether the potentially concerned states have different laws,
(2) consideration of whether each of the states has an interest in having its law applied to
the case, and (3) if the laws are different and each has an interest in having its law
applied (a “true” conflict), selection of which state’s law to apply by determining which
state’s interests would be more impaired if its policy were subordinated to the policy of
the other state. [Citations.]’ [Citation.]” (Clothesrigger, Inc. v. GTE Corp. (1987) 191
Cal.App.3d 605, 614.)
In Wershba, supra, 91 Cal.App.4th at page 230, a case where there was no
choice-of-law provision, a California-based computer manufacturer changed its policy of
providing free technical support, and immediately began requiring its customers to pay
for technical support. Several class action lawsuits raising claims for breach of contract
and violations of the UCL and the CLRA were filed. (Wershba, supra, at p. 231.) A
nationwide class was certified at the same time a proposed settlement was preliminarily
approved by the trial court. (Id. at p. 232.) Objections to the proposed settlement were
filed, in part objecting because the state law consumer claims should not be pursued by a
nationwide class. (Id. at pp. 233-234.) The trial court rejected the objections, certified
the nationwide class, and approved the settlement. (Id. at p. 234.)
13

On appeal, the appellate court concluded it was appropriate to certify a
nationwide class to pursue the claims for violations of the UCL and the CLRA: “[A]
California court may properly apply the same California statutes at issue here to
non-California members of a nationwide class where the defendant is a California
corporation and some or all of the challenged conduct emanates from California.
[Citations.]” (Wershba, supra, 91 Cal.App.4th at p. 243.) “Even though there may be
differences in consumer protection laws from state to state, this is not necessarily fatal to
a finding that there is a predominance of common issues among a nationwide class. As
the Ninth Circuit Court of Appeals has observed, state consumer protection laws are
relatively homogeneous: ‘the idiosyncratic differences between state consumer
protection laws are not sufficiently substantive to predominate over the shared claims’
and do not preclude certification of a nationwide settlement class.” (Id. at p. 244.)
Although the trial court in the present case was not considering a settlement class, we do
not find that dispositive, especially because “California’s consumer protection laws are
among the strongest in the country.” (Id. at p. 242.)
Here, Buy.com is headquartered in California. The allegedly misleading
rebate information on Buy.com’s Web site originated from California. The due diligence
Buy.com allegedly failed to perform would have been performed in California. This state
has a clear connection to the claims asserted by Kershenbaum. Although there are
differences between the consumer protection laws of California and those of other states,
those differences generally favor the consumers, and Buy.com cannot explain why
another state would object to having California provide greater protection to its citizens
against alleged wrongdoing by a California defendant.
Under Wershba and Clothesrigger, Inc. v. GTE Corp., even if the
California choice-of-law provision in Buy.com’s terms of use agreement did not apply,
the trial court erred in finding common issues did not predominate.
14

IV.
ARE THE CLAIMS VAGUE?
The trial court also denied Kershenbaum’s motion for class certification
because “it is vague as to what claims Plaintiff asserts against Buy.com: the failure of
Buy.com to perform ‘due diligence’ as to Connect 3D’s financial condition, or
misleading advertising.”
Kershenbaum’s argument on appeal regarding this issue is as follows:
“The Trial Court stated that it was unclear whether Appellant sought a class to be
certified based on its claim involving ‘due diligence’ or on ‘misleading advertising.’ But
that is a false dichotomy. Appellant’s claim is that Buy.com performed inadequate due
diligence, and as a result, it advertise[d] that rebates were available when they were not –
and that advertising was, in fact, misleading (indeed, it was utterly false, since no one in
the putative class was paid their rebates).”
The reply brief, for the most part, repeats the opening brief’s argument:
“Buy.com contends that Mr. Kershenbaum is vague as to what claims he asserts against
Buy.com: due diligence or misleading advertising. . . . But that is a false dichotomy.
Buy.com advertised that rebates were available when they were not – and that advertising
was, in fact, misleading (indeed, it was utterly false, since no one in the putative class
was paid his or her rebate). It was negligent for Buy.com to have made such
misrepresentations, because, Mr. Kershenbaum alleges, it virtually took Connect 3D’s
word for it that Connect 3D would be good for the rebates. The misrepresentations at
issue are the ones every single person in the putative class must have seen and relied
upon: that a rebate was available with the Connect 3D products.” (Original italics.)
Although Kershenbaum’s pleadings could have been clearer, his allegations
were not so vague as to warrant denial of his motion for class certification. Accordingly,
we conclude the trial court erred in denying the class certification motion on the ground
that it was vague whether Kershenbaum was arguing that Buy.com failed to conduct due
15

diligence on Connect 3D, or that Buy.com’s Web site stating Connect 3D’s products
were free after the rebate was misleading advertising. In essence, Kershenbaum alleged
the advertising of a free rebate was misleading.
V.
DOES THE PROPOSED CLASS REPRESENTATIVE HAVE STANDING
FOR THE MISLEADING ADVERTISING CLAIM?
The trial court also found that Kershenbaum did not have standing to assert
a claim for misleading advertising. “If Plaintiff is asserting ‘misleading advertising,’ i[t]
appears the proposed class representative lacks standing, in that he testified he did not
rely on any of Buy.com’s representations or omissions before purchasing the Connect 3D
rebated products.” At his deposition, Kershenbaum testified that he believed an online
retailer should always be responsible for paying the advertised rebate on products it sells
through its Web site, even if the Web site states the rebate will be provided by the
manufacturer, not the online retailer. Buy.com therefore argues Kershenbaum did not
rely on any misrepresentations or omissions because “[t]here was thus nothing Buy.com
could have done to prevent Kershenbaum from thinking that Buy.com was responsible
for the Connect 3D rebates, not even if Buy.com had conducted an independent audit or
provided an express disclaimer.” (Boldface omitted.)
The misleading advertising Kershenbaum’s complaint alleged is the
statement that the Connect 3D products purchased were free after the rebate, when in fact
a rebate was not available. Kershenbaum has standing to assert such a claim, and the trial
court erred in determining otherwise. We take no position as to the merits of
Kershenbaum’s claim.
16

DISPOSITION
The order is reversed. The trial court is directed to enter an order certifying
a class, the definition of which shall be in the trial court’s discretion. Appellant to
recover costs on appeal.
WE CONCUR:
O’LEARY, ACTING P. J.
IKOLA, J.
17
FYBEL, J.