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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.
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