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eBay bidding fraud & online liability legal issues

Dec 29th, 2014 | By | Category: Internet Law

eBay litigation fraud – ZipCounsel Cease & Desist Letters, Internet Litigation Firm

ebay auctiion fraud lawyer

 Introduction

Have you ever found an item you wanted to purchase on eBay and started bidding on it.  Then, you get other notifications telling you someone else has outbid you.  Then, when an other buyer has officially outbid your highest bid (for example by $5 or more) you back out of the bidding process saying to yourself – “fine, let them have it.,” only to then be emailed by the seller informing you that “YOU WON AND ITS TIME TO PAY FOR THE PRODUCT.”

But then you say: “what are you talking about, someone else outbid me.”  Then the eBay power seller says “no, they backed out – you won – please pay for the product.”  When someone tries to do this to you there is probably good cause to believe they are engaged in eBay fraud by having a fake account run up the bidding so that you bid higher on the product, thus achieving a higher sales price, albeit in a manipulated marketplace.  Basically the eBay or online auction power seller is rigging the marketplace.  That’s where our internet law litigation attorneys can take over.

Common types of eBay fraud and misrepresentation that may require you to send a cease and desist demand letter (or else filing a small claims case, or civil lawsuit seeking money damages, including punitive damages designed to punish and deter future misconduct):

1.  eBay bid rigging / fake bids through third party accounts designed to drive up the price on listed goods;

2.  False advertising of products that appear good on the surface, as depicted on the website, (but which then arrive in a shape, condition, or form not as described, for example, the eBay seller sends you a completely different product from what you thought you ordered).  Once time I ordered a Charleston Lookouts Baseball Batting Helmet from a “power seller” on eBay.  The seller, looked like a legitimate online retailer, and I wanted this specific helmet to send to a friend in San Francisco so he could use the helmet in his band.  The seller took my order and my money, but when it came time to ship me the product, he told me that he was “all out of the Lookout helmets”.  I said DUDE, YOUR HOMEPAGE SAYS YOU HAVE SEVEN OF THOSE BASEBALL HELMETS FOR SALE AND IN STOCK.

In short, the eBay seller, in my opinion, was a thief basically trying to take my money with no intent to sell me the product he advertised for sale in an a manner agreed to on eBay.  The guy was a fraudster and I sent him a cease and desist letter, which surprised him and he informed me (“who would go to the trouble to do that”), and I said I would.  You better stop what you are doing before you end up in Court depending your deceptive practices which violate several state laws dealing with online marketplaces.  His attitude says it all – most eBay sellers think they can just say sorry, offer a refund and continue about waiting for their next victim as they hide anonymously behind their computer.

I informed this eBay seller, as I will be informing you now, of various legal theories you could look into to try to hold this type of eBay trickster liable in a Court of law.  In some cases, as discussed below, an aggrieved party Plaintiff may have cause to seek to litigate against eBay, who has a “deep pocket” to go after as opposed to most “power sellers.”

How to hold eBay buyers or sellers honest, and sue them in court if they continue with their game-playing, lies, deceit and fraudulent conduct online.

1.  Your first step is to consider sending a written cease and desist letter to the eBay fraudster.  Let them know that you know what they are up to and that you are going to file a civil lawsuit for fraud and violation of California Consumer Legal Remedies Act if they don’t stop doing what they are doing.

2.  If that cease and desist letter does not work out, then you should consider filing either a small claims lawsuit (up to $10,000) and/or a civil lawsuit alleging your fraud, false, or unfair business practices, violation of CLRA etc as the case may be.

These are the main avenues to consider.  Of course, some people would consider acts of fraud over the internet to be an example of mail and wire fraud, and make make criminal complaints to the proper authorities (ex. FBI, Postmaster General, etc.)

Cease and Desist letter Counterfeit Goods eBay

Another thing that happens on eBay is that the seller advertises and sends you a “falsely autographed” piece of sports memorabilia, or other counterfeit goods (that often infringes on another companies valuable trademarks – for example false Louie Vatton purses or wallets).  These types of fraudsters must also be stopped and a cease and desist letter demanding a full refund, damages, etc. should be considered, especially against a fraudulent “power seller.”  There are a lot of counterfeit and knock off goods originating from China and Hong Kong according to reports I have heard so you need to be careful when purchasing items from abroad if you are in the United States.

Can I hold eBay responsible for the conduct of the seller on the website?

Keep in mind, in most cases, eBay may have a claim to immunity such as one California Court held in a sports memorabilia case Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 819-20, 121 Cal. Rptr. 2d 703, 706 (2002):

“Lars Gentry, Henry Camp, Mike Hyder, James Conboy, William Pommerening, and Michael Osacky (appellants) appeal a judgment of dismissal entered after the trial court sustained eBay, Inc.’s (eBay) demurrer to appellants’ second amended complaint without leave to amend. In that pleading, appellants alleged eBay violated California’s Autographed Sports Memorabilia statute (Civ.Code, § 1739.7) by failing to furnish a certificate of authenticity to persons who purchased autographed sports-related collectibles through its web site. Appellants also alleged eBay was negligent and engaged in unfair business practices under the Unfair Competition Law (UCL) (Bus. and Prof.Code, § 17200 et seq.) based on its failure to supply such certificates as well as its acts in distributing false certificates, permitting other false representations to be placed on its web site, and making its own false or misleading representations. In part, the trial court ruled eBay was not a dealer within the meaning of Civil Code section 1739.7 and appellants failed to plead around the statutory immunity provided by section 230 of title 47 of the United States Code (hereinafter section 230), which otherwise protected eBay’s conduct. Appellants contend the trial court erred in sustaining eBay’s demurrers without leave to amend because (1) they sufficiently alleged eBay is an auctioneer that provides the requisite description of collectibles as being autographed within the meaning of Civil Code section 1739.7; and (2) section 230 does not preempt their causes of action against eBay.

We conclude appellants cannot state a cause of action against eBay under Civil Code section 1739.7 because their allegations reveal eBay did not sell or offer to sell the collectibles at issue. Additionally, we conclude imposition of Civil Code section 1739.7 liability on eBay in this particular case, as well as liability for negligence and violation of the UCL, is inconsistent with section 230 (Communications Decency Act) because appellants’ causes of action ultimately hold eBay responsible for misinformation or misrepresentations originating with other defendants or third parties. Because appellants cannot maintain their Civil Code section 1739.7 claim, and section 230 otherwise immunizes eBay from civil liability under these circumstances, we affirm the judgment of dismissal.
Even so, other California Courts have looked to other causes of action.  In Rosado v. eBay Inc., No. 5:12-CV-04005-EJD, 2014 WL 2945774, (N.D. Cal. June 30, 2014) the Northern District Court held Plaintiff plead a case:

“In the instant action, Plaintiff describes a unified course of fraudulent conduct, alleging that eBay made misrepresentations and omissions “grounded in fraud,” relying entirely on that course of conduct as the basis for his claim against eBay. Therefore the claim is “grounded in fraud” and Plaintiff’s claim as a whole must satisfy the heightened pleading standard of Rule 9(b). To meet the pleading standard for fraud claims under the UCL, CLRA, and FAL, a plaintiff must show that “members of the public are likely to be deceived.” Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir.2008). The challenged conduct “is judged by the effect it would have on a reasonable consumer.” Puentes v. Wells Fargo Home Mortg., Inc., 160 Cal.App.4th 638, 645, 72 Cal.Rptr.3d 903 (2008) (citation omitted). “Whether a practice is deceptive, fraudulent, or unfair is generally a question of fact that is not appropriate for resolution on the pleadings.” Williams, 552 F.3d at 938–39 (citation omitted). However, where a court can conclude as a matter of law that alleged misrepresentations are not likely to deceive a reasonable consumer, courts have dismissed claims under the UCL, CLRA, and FAL. Jones v. ConAgra Foods, Inc., 912 F.Supp.2d 889, 899 (N.D.Cal.2012).”

The California Legal Remedies Act

“The CLRA proscribes “unfair methods of competition and unfair or deceptive acts or practices.” Cal. Civ.Code § 1770(a); Conduct that is “likely to mislead a reasonable consumer” violates the CLRA.  A CLRA claim sounding in fraud must establish reliance and causation. Buckland v. Threshold Enters., Ltd., 155 Cal.App.4th 798, 809, 66 Cal.Rptr.3d 543 (2007), The sufficiency of a plaintiff’s CLRA claim may be analyzed together with the UCL fraud claim. Kowalsky v. Hewlett–Packard Co., No. 10–CV–02176–LHK, 2011 WL 3501715, at 6 (N.D.Cal. Aug. 10, 2011) (“[T]he CLRA claim stands or falls along with the claim under the fraudulent prong of the UCL”). As discussed in the analysis of Plaintiff’s UCL claim, Plaintiff has pled specific facts to support his claim under Rule 9(b). Accordingly, the Court denies eBay’s Motion to Dismiss Plaintiff’s CLRA claim.”  See Rosado v. eBay Inc., No. 5:12-CV-04005-EJD, 2014 WL 2945774, (N.D. Cal. June 30, 2014).

California False Advertising Law – B&P 17500

“The FAL (False Advertising law) makes it unlawful to induce the public to enter into any obligation through the dissemination of “untrue or misleading” statements. Cal. Bus. & Prof.Code § 17500. A claim under the FAL must show that the plaintiff suffered an injury due to his or her own actual and reasonable reliance on the purported misleading statements. Whether a statement or omission is “misleading” must be judged by the effect it would have on a reasonable consumer. Generally, a violation of the UCL’s fraud prong is also a violation of the FAL……As an initial matter, Plaintiff does not argue that eBay’s website contained any statements that were actually false. However, California courts construe section 17500 to extend beyond literal false statements. The statute has been interpreted broadly to encompass “not only advertising which is false, but also advertising which although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public. Because Plaintiff has adequately established his UCL fraud claim, the Court denies eBay’s Motion to Dismiss Plaintiff’s FAL claim.   Again, see Rosado v. eBay Inc., No. 5:12-CV-04005-EJD, 2014 WL 2945774, (N.D. Cal. June 30, 2014)

Other eBay related legal issues that might arise

  • Disputes over “defect rate” policies
  • Loss of rating due to eBay purge policies
  • Disputes under eBay’s “money back guarantee” policy
  • Controversies arising under eBay global shipping program
  • Feedback fraud
  • Online defamation / libel
  • Defective products
  • Unlawful termination of seller accounts under eBay policies
  • Excessive and unwarranted fee gouging
  • Issues with tying up paypal account
  • Misuse of return issues
  • Mediation and appeals
This is a just a sample list of potential legal issues when dealing with an online auction website, and similar legal disputes have been known to arise through the use of Amazon.com’s online marketplace.

Contact an Internet Law firm to investigate your legal rights and weigh the pros and cons of litigation and/or to send a eBay cease and desist consumer fraud letter.

We can be reached at (877) 276-5084.  Or, fill out the contact form below to have one on our internet lawyers contact you  to discuss your case.  We can send a low cost cease and desist letter through our ZipCounsel – fast and afforable legal services portal.

 

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