3 YouTubers Urge 9th Circuit to Reverse Dismissal of Their Ore. ARL Claims

The U.S. District Court for Oregon erred June 13 when it granted YouTube’s motion to dismiss the second amended complaint of plaintiff-appellants Victor Walkingeagle, Nathan Briggs and Donald Molina for violations of Oregon’s Automatic Renewal Law (ARL), said their opening brief Monday (docket 23-35465) in the 9th U.S. Circuit Court of Appeals. The 9th Circuit should therefore reverse the district court’s dismissal order and remand for further proceedings, it said.

Oregon’s ARL is identical to California’s and “is clear,” according to the brief. YouTube was required under the statute to disclose, in a “clear and conspicuous manner,” five “specifically enumerated automatic renewal offer terms,” it said. The plaintiff-appellants are three Oregon residents who enrolled in YouTube subscription services and allege that YouTube didn’t comply with any of the ARL’s requirements.

YouTube didn’t deny any of that, let alone deny that the plaintiffs “have plausibly alleged these violations,” said the brief. Instead, YouTube argued that the ARL’s textual requirements are too burdensome, “so they should be read away or excused,” it said.

But that’s “not the law,” the brief stated. The ARL “represents the will” of the Oregon legislature, “and it must be enforced as written,” it said. Courts “may not substitute their own judgment” for that of the Oregon legislature, it added.

Yet in seeking dismissal of the plaintiffs’ claims under Oregon’s Unlawful Trade Practices Act (UTPA), YouTube asked the district court “to ignore the will” of the Oregon legislature “and impose its own will instead,” said the brief. The district court “obliged,” it said. Its order of dismissal doesn’t “comport with the text or purpose of the ARL,” it said.

For example, the district court’s reading of the definition of “clear and conspicuous” under the statute “ignores an entire clause of the definition, as well as its syntax and punctuation,” said the brief. Similarly, its interpretation of “affirmative consent,” undefined in the statute, “is impermissibly narrow so as to contravene the legislative intent underlying the UTPA and ARL,” it said. The plaintiffs’ broad reading of the statute is consistent with the legislature’s intent that courts interpret the UTPA liberally to protect consumers, it said.

Another “major theme” of the district court’s dismissal order is its “misapplication of the standard for review on a motion to dismiss,” said the brief. The district court ignored the plaintiffs’ “well-pleaded factual allegations,” and it “improperly resolved factual disputes” that should have been reserved for the jury, it said.

The second amended complaint includes “extensive allegations” describing in great detail the ways in which the disclosures of the YouTube checkout pages weren’t clear and conspicuous as the ARL required, said the brief. Also alleged in the second amended complaint was how the “cancellation mechanism” for YouTube subscriptions wasn’t timely or easy to use as the statute also required, it said.

But the district court “wholly disregarded these allegations,” and with that “its own obligation to accept all material facts alleged in the complaint as true and construe them in the light most favorable to the nonmoving party,” said the brief. The district court also “improperly and prematurely resolved numerous questions of fact,” it said. That includes questions “regarding the impressions of a reasonable consumer, which are generally jury questions,” it said.