Case 5:22-cv-05077-NC Document 1 Filed 09/07/22 Page 1 of 38
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`BURSOR & FISHER, P.A.
`L. Timothy Fisher (State Bar No. 191626)
`1990 North California Blvd., Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`E-mail: ltfisher@bursor.com
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`BURSOR & FISHER, P.A.
`Joseph I. Marchese (pro hac vice forthcoming)
`Alec M. Leslie (pro hac vice forthcoming)
`New York, NY 10019
`Telephone: (646) 837-7150
`Facsimile: (212) 989-9163
`E-Mail: jmarchese@bursor.com
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` aleslie@bursor.com
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`GUCOVSCHI ROZENSHTEYN, PLLC.
`Adrian Gucovschi (pro hac vice forthcoming)
`630 Fifth Avenue, Suite 2000
`New York, NY 10111
`Telephone: (212) 884-4230
`Facsimile: (212) 884-4230
`E-Mail: adrian@gr-firm.com
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`Attorneys for Plaintiff
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORINA
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`Case No.:
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`AMANDA MCCLURE, individually and on
`behalf of all other persons similarly situated,
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`Plaintiff,
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`v.
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`GROCERY DELIVERY E-SERVICES USA
`INC. D/B/A HELLOFRESH,
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` Defendant.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 5:22-cv-05077-NC Document 1 Filed 09/07/22 Page 2 of 38
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`Plaintiff Amanda McClure (“Plaintiff”) brings this action individually and on behalf of all
`others similarly situated against Defendant Grocery Delivery E-Services Usa Inc., d/b/a HelloFresh
`(“HelloFresh” or “Defendant”). Plaintiff makes the following allegations pursuant to the
`investigation of her counsel and based upon information and belief, except as to allegations
`specifically pertaining to herself and her counsel, which are based on personal knowledge.
`INTRODUCTION
`1.
`This is a putative class action lawsuit against Defendant for engaging in an illegal
`“automatic renewal” scheme with respect to its subscription sports broadcasting and streaming
`services across its network sites (collectively, the “HelloFresh Subscriptions,” enumerated below)
`through its website at https://www.HelloFresh.com (the “HelloFresh Website”). Defendant is an
`international food delivery company that, among other activities, delivers pre-portioned ingredients
`and recipes as an alternative to traditional grocery shopping. Relevant to Plaintiff’s allegations,
`when consumers sign up for the HelloFresh Subscriptions through the HelloFresh Website,
`Defendant actually enrolls consumers in a program that automatically renews customers’
`HelloFresh Subscriptions from week-to-week and results in weekly charges to the consumer’s
`credit card, debit card, or third-party payment account (collectively, “Payment Method”). In doing
`so, Defendant fails to provide the requisite disclosures and authorizations required to be made to
`and obtained from California consumers under California’s Automatic Renewal Law (“ARL”),
`Cal. Bus. & Prof. Code §§ 17600, et seq.
`2.
`Through the HelloFresh Website, Defendant markets, advertises, and sells to
`consumers in California and throughout the United States paid memberships to the HelloFresh
`Subscriptions, which include food delivery kits based on its customers’ food preferences and
`number of servings per week (collectively, the “HelloFresh Subscriptions”). To sign up for one of
`Defendant’s HelloFresh Subscriptions through the HelloFresh Website, customers must provide
`Defendant with their billing information and Defendant then automatically charges customers’
`Payment Method as payments become due, typically on a weekly basis. Defendant is able to
`unilaterally charge its customers’ renewal fees without their consent, as Defendant is in possession
`of its customers’ billing information. Thus, Defendant has made the deliberate decision to charge
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`Case 5:22-cv-05077-NC Document 1 Filed 09/07/22 Page 3 of 38
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`Plaintiff and other similarly situated customers on a weekly basis, absent their consent under the
`ARL, relying on consumer confusion and inertia to retain customers, combat consumer churn, and
`bolster its revenues.
`3.
`Pursuant to the ARL, online retailers who offer automatically renewing
`subscriptions to California consumers must: (a) obtain affirmative consent prior to the consumer’s
`purchase; (b) provide the complete auto-renewal terms in a clear and conspicuous manner and in
`visual proximity to the request for consent prior to the purchase; and (c) provide an
`acknowledgement identifying an easy and efficient mechanism for consumers to cancel their
`subscriptions. As will be discussed below, the enrollment process for the HelloFresh Subscriptions
`through the HelloFresh Website uniformly violates each of the core requirements of the ARL.
`4.
`Specifically, Defendant systematically violates the ARL by: (i) failing to present the
`automatic renewal offer terms in a clear and conspicuous manner and in visual proximity to the
`request for consent to the offer before the subscription or purchasing agreement is fulfilled, in
`violation of Section 17602(a)(1); (ii) charging consumers’ Payment Method without first obtaining
`their affirmative consent to the agreement containing the automatic renewal offer terms, in
`violation of Section 17602(a)(2); and (iii) failing to provide an acknowledgment that includes the
`automatic renewal offer terms, cancellation policy, and information regarding how to cancel in a
`manner that is capable of being retained by the consumer, in direct violation of Sections
`17602(a)(3) and 17602(b). Cal. Bus. & Prof. Code §§ 17602(a)(l), (a)(2), (a)(3), (b). As a result,
`the HelloFresh Subscriptions, which include food delivery kits granted to Plaintiff and the Class
`under the automatic renewal of continuous service agreements are deemed to be “unconditional
`gifts” under the ARL. Cal. Bus. & Prof. Code § 17603.
`5.
`For the foregoing reasons, Plaintiff brings this action individually and on behalf of
`all California purchasers of any of Defendant’s HelloFresh Subscriptions offerings who, within the
`applicable statute of limitations period up to and including the date of judgment in this action,
`incurred unauthorized fees for the renewal of their HelloFresh Subscriptions. Based on Defendant’s
`unlawful conduct, Plaintiff seeks damages, restitution, declaratory relief, injunctive relief, and
`reasonable attorneys’ fees and costs, for: (i) violation of California’s Unfair Competition Law
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`Case 5:22-cv-05077-NC Document 1 Filed 09/07/22 Page 4 of 38
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`(“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq.; (ii) violation of California’s False Advertising
`Law (“FAL”), Cal. Bus. & Prof. Code §§ 17500, et seq.; (iii) violation of California’s Consumers
`Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750, et seq.; (iv) conversion; and (iv) unjust
`enrichment/restitution.
`
`THE PARTIES
`6.
`Plaintiff Amanda McClure is a citizen of California, residing in Marina, California.
`On or around March 11, 2022, Ms. McClure purchased a HelloFresh Subscription from
`Defendant’s Website while residing in California. During the enrollment process, but before
`finally consenting to Defendant’s subscription offering, Ms. McClure provided her Payment
`Method information directly to Defendant. At the time that Ms. McClure enrolled in her
`HelloFresh Subscription program, Defendant did not disclose to Ms. McClure all of the required
`automatic renewal offer terms associated with the subscription program or obtain Ms. McClure’s
`affirmative consent to those terms. Further, after Ms. McClure completed her initial order (which
`was free after applying the Defendant’s promotional code), Defendant sent Ms. McClure an email
`confirmation and receipt for her purchase of and enrollment in the HelloFresh Subscription (the
`“Acknowledgment Email”). However, the Acknowledgment Email, too, failed to provide Ms.
`McClure with the complete automatic renewal terms that applied to Defendant’s offer, a
`description of Defendant’s full cancellation policy, or information regarding how to cancel Ms.
`McClure’s HelloFresh Subscription in a manner capable of being retained by her. Ms. McClure did
`not receive any other acknowledgement that contained the required information. As a result, Ms.
`McClure was not placed on notice of several material terms associated with her HelloFresh
`Subscription. In particular, Ms. McClure was not made aware of the recurring price to be charged
`upon renewal, the length of the renewal term, when the first charge would occur, or the complete
`cancellation policy associated with her HelloFresh Subscription: the most crucial aspects of which
`were missing from the Checkout Page and the Acknowledgment Email. Nevertheless, on
`Wednesday, March 23, 2022, Defendant automatically renewed Ms. McClure’s HelloFresh
`Subscription and charged Ms. McClure’s Payment Method approximately $69.93. Defendant
`charged Mr. McClure’s Payment Method again on March 30, 2022 for $69.93. Promptly after
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`Case 5:22-cv-05077-NC Document 1 Filed 09/07/22 Page 5 of 38
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`learning of Defendant’s deceptive recurring charges, on or around Tuesday, April 5, 2022, Ms.
`McClure canceled her HelloFresh Subscription via Defendant’s Website in order to avoid incurring
`any additional future charges. Nevertheless, Defendant imposed a charge of 69.93 the day after Ms.
`McClure’s cancelation. Defendant’s missing and/or incomplete disclosures on the Checkout Page
`and in the Acknowledgment Email for the HelloFresh Subscription, its failure to obtain Ms.
`McClure’s affirmative consent to the offer terms associated with the HelloFresh Subscription
`before charging her Payment Method on a recurring basis, runs contrary to the ARL, which deems
`products provided in violation of the statute to be a gift to consumers. See Cal. Bus. & Prof. Code
`§ 17603. Had Defendant complied with the ARL, Ms. McClure would have been able to read and
`review the pertinent automatic renewal offer terms prior to purchase, and she would not have
`subscribed to the HelloFresh Subscription at all or on the same terms or she would have cancelled
`her HelloFresh Subscription earlier, i.e., prior to the two charges following her free promotional
`delivery. As a direct result of Defendant’s violations of the ARL, Ms. McClure suffered, and
`continues to suffer, economic injury.
`7.
`Defendant Grocery Delivery E-Services Usa Inc., d/b/a HelloFresh (“HelloFresh” or
`“Defendant”) is a Delaware corporation with its principal place of business at 28 Liberty
`Street, New York, New York 10005. Defendant is an international food delivery company that
`markets, sells, and delivers meal kits to consumers throughout California and nationwide.
`Defendant is also responsible for the promotion, advertisement, and/or marketing of the
`automatically renewing HelloFresh Subscriptions, and it owns and operates the HelloFresh
`Website, where it markets and sells its HelloFresh Subscriptions. Defendant sells HelloFresh
`Subscriptions in California and has done business throughout New York, and throughout the
`United States, at all times during the Class Period. Defendant also made automatic renewal or
`continuous service offers to consumers in California and New York, and throughout the United
`States, via the HelloFresh Website during the Class Periods.
`8.
`Plaintiff reserves the right to amend this Complaint to add different or additional
`defendants, including without limitation any officer, director, employee, supplier, or distributor of
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`Case 5:22-cv-05077-NC Document 1 Filed 09/07/22 Page 6 of 38
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`Defendant who has knowingly and willfully aided, abetted, or conspired in the false and deceptive
`conduct alleged herein.
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`JURISDICTION AND VENUE
`9.
`This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(2)(A), as
`amended by the Class Action Fairness Act of 2005 (“CAFA”), because this case is a class action
`where the aggregate claims of all members of the proposed class are in excess of $5,000,000.00,
`exclusive of interest and costs, there are over 100 members of the putative class, and Plaintiff, as
`well as most members of the proposed class, is a citizen of a state different from Defendant.
`10.
`This Court has personal jurisdiction over the parties because Plaintiff resides in
`California and submits to the jurisdiction of the Court, and because Defendant has, at all times
`relevant hereto, systematically and continually conducted business in California, including within
`this District, and/or intentionally availed itself of the benefits and privileges of the California
`consumer market through the promotion, marketing, and sale of its products and/or services to
`residents within this District and throughout California. Additionally, Plaintiff purchased her
`HelloFresh Subscription from Defendant while in California.
`11.
`Pursuant to 28 U.S.C. § 1391, this Court is the proper venue for this action because
`a substantial part of the events, omissions, and acts giving rise to the claims herein occurred in this
`District. Also, Plaintiff resides in this District and purchased Defendant’s HelloFresh Subscription
`in this District. Moreover, Defendant systematically conducts business in this District and
`throughout the State of California, and it distributed, advertised, and sold the HelloFresh
`Subscriptions to Plaintiff and Class Members in this State and District.
`FACTUAL ALLEGATIONS
`Background On The Subscription e-Commerce Market
`A.
`12.
`The e-commerce subscription model is a business model in which retailers provide
`ongoing goods or services “in exchange for regular payments from the customer.”1 Subscription
`e-commerce services target a wide range of customers and cater to a variety of specific interests.
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`1 See https://www.coredna.com/blogs/ecommerce-subscription-services.
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`Case 5:22-cv-05077-NC Document 1 Filed 09/07/22 Page 7 of 38
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`Given the prevalence of online and e-commerce retailers, subscription e-commerce has grown
`rapidly in popularity in recent years. Indeed, the “subscription economy has grown more than
`400% over the last 8.5 years as consumers have demonstrated a growing preference for access to
`subscription services[.]”2 Analysts at UBS predict that the subscription economy will expand into a
`$1.5 trillion market by 2025, up from $650 billion in 2020.3 That constitutes an average annual
`growth rate of 18%, which makes the subscription economy “one of the fastest-growing industries
`globally.4
`13.
`As noted above, the production, sale, and distribution of subscription-based
`products and services is a booming industry that has exploded in popularity over the past few
`years. According to Forbes, “[t]he subscription e-commerce market has grown by more than 100%
`percent a year over the past five years, with the largest retailers generating more than $2.6B in
`sales in 2016, up from $57.0M in 2011.”5 Following 2016, market growth within the industry
`increased exponentially, reaching $650 billion in 2020.6 “As such, the financials of companies
`
`2 Business Insider, Taco Bell’s taco subscription is rolling out nationwide — here’s how to get it
`(January 6, 2022), https://www.businessinsider.com/taco-bell-subscription-launching-across-the-
`country-2022-1 (internal quotation marks omitted).
`3 See UBS, Investing in digital subscriptions (March 10, 2021),
`https://www.ubs.com/global/en/wealth-management/our-
`approach/marketnews/article.1525238.html (“[A]t close to USD 650 billion in 2020, we expect the
`subscription economy to expand into a USD 1.5 trillion market by 2025, implying an average
`annual growth rate of 18%.”). See also Subscribed, UBS Declares: It’s Worth Investing in the
`Subscription Economy (April 17, 2021), https://www.subscribed.com/read/news-and-editorial/ubs-
`declares-its-worth-investing-in-the-subscription-economy; Business 2 Community, The
`Subscription Economy Is Booming Right Now. But Are You Reaping the Full Benefits? (October 7,
`2021), https://www.business2community.com/ecommerce/the-subscription-economy-is-booming-
`right- now-but are-you-reaping-the-full-benefits-02434851.
`4 UBS, Investing in digital subscriptions (Mar. 10, 2021), supra (“[Growth] was seen across many
`areas, including e-commerce, video streaming, gaming, cloud-based applications, etc.”); see also
`Juniper Research, Subscriptions For Physical Goods To Overtake Digital Subscriptions By 2025;
`Growing To Over $263bn Globally (Oct. 12, 2020),
`https://www.juniperresearch.com/press/subscriptions-for-physical-goods-to-overtake
`(acknowledging “the significant lead the digital sector has had in th[e] area[ of digital service
`subscriptions]”).
`5 The State Of The Subscription Economy, 2018, Forbes (Mar. 4, 2018),
`https://www.forbes.com/sites/louiscolumbus/2018/03/04/the-state-of-the-subscription-economy-
`2018/#6ad8251a53ef.
`6 See UBS, Investing in digital subscriptions (Mar. 10, 2021), available at
`https://www.ubs.com/global/en/wealth-management/our-
`approach/marketnews/article.1525238.html.
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`with subscription business models[] … improved dramatically in 2020 thanks to limited revenue
`volatility and strong cash flow generation.”7 Thus, “[t]he share prices of most subscription
`companies have performed well in recent years.”8
`14.
`The expansion of the subscription e-commerce market shows no signs of slowing.
`“We’re now in the subscriptions era, and the pandemic is accelerating its takeover. During the
`COVID-19 lockdowns, many digital-based subscription business models fared well due to their
`promise of convenience and strong business continuity.”9 According to The Washington Post,
`“[s]ubscriptions boomed during the coronavirus pandemic as Americans largely stuck in shutdown
`mode flocked to digital entertainment[.] … The subscription economy was on the rise before the
`pandemic, but its wider and deeper reach in nearly every industry is expected to last, even after the
`pandemic subsides in the United States.”10
`15.
`However, as The Washington Post has noted, there are downsides associated with
`the subscription-based business model. While the subscription e-commerce market has low barriers
`and is thus easy to enter, it is considerably more difficult for retailers to dominate the market due to
`the “highly competitive prices and broad similarities among the leading players.”11 In particular,
`retailers struggle with the fact that “[c]hurn rates are high, [] and consumers quickly cancel services
`that don’t deliver superior end-to-end experiences.”12 Yet, retailers have also recognized that,
`where the recurring nature of the service, billing practices, or cancellation process is unclear or
`complicated, “consumers may lose interest but be too harried to take the extra step of canceling
`
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`7 Id.
`8 Id.
`9 UBS, Investing in digital subscriptions (Mar. 10, 2021), https://www.ubs.com/global/en/wealth-
`management/our- approach/marketnews/article.1525238.html.
`10 The Washington Post, Everything’s becoming a subscription, and the pandemic is partly to
`blame (June 1, 2021), https://www.washingtonpost.com/business/2021/06/01/subscription-boom-
`pandemic/ (noting that “e-commerce and entertainment subscriptions to sites such as Netflix, Hulu
`and Disney Plus made headlines during the pandemic for soaring growth”).
`11 McKinsey & Company, Thinking inside the subscription box: New research on e-commerce
`consumers, (February 2018), https://www.mckinsey.com/industries/technology-media-and-
`telecommunications/our-insights/thinking- inside-the-subscription-box-new-research-on-
`ecommerce-consumers#0.
`12 Id.
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`Case 5:22-cv-05077-NC Document 1 Filed 09/07/22 Page 9 of 38
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`their membership[s].”13 As these companies have realized, “[t]he real money is in the inertia.”14
`As a result, “[m]any e-commerce sites work with third-party vendors to implement more
`manipulative designs.”15 That is, to facilitate consumer inertia, a number of subscription e-
`commerce companies, including Defendant, “are now taking advantage of subscriptions in order to
`trick users into signing up for expensive and recurring plans. They do this by intentionally
`confusing users with their app’s design and flow, … and other misleading tactics[,]” such as failure
`to fully disclose the terms of its automatic-renewal programs.16
`16.
`To make matters worse, once enrolled in the subscription, “[o]ne of the biggest
`complaints consumers have about brand/retailers is that it’s often difficult to discontinue a
`subscription marketing plan.”17 Moreover, “the rapid growth of subscriptions has created a host of
`challenges for the economy, far outpacing the government’s ability to scrutinize aggressive
`marketing practices and ensure that consumers are being treated fairly, consumer advocates say.”18
`17.
`Thus, although “Federal Trade Commission regulators are looking at ways to make
`it harder for companies to trap consumers into monthly subscriptions that drain their bank accounts
`[and] attempting to respond to a proliferation of abuses by some companies over the past few
`
`
`13Washington Post, Little-box retailing: Subscription services offer new possibilities to consumers,
`major outlets (April 7, 2014),
`https://www.washingtonpost.com/business/economy/tktktktk/2014/04/07/f68135b6-a92b-11e3-
`8d62-419db477a0e6_story.html.
`14 Id.
`15 Business Insider, A new study from Princeton reveals how shopping websites use 'dark patterns'
`to trick you into buying things you didn't actually want (June 25, 2019),
`https://www.businessinsider.com/dark-patterns-online- shopping-princeton-2019-6.
`16 TechCrunch, Sneaky subscriptions are plaguing the App Store (October 15, 2018),
`https://techcrunch.com/2018/10/15/sneaky-subscriptions-are-plaguing-the-app-store/.
`17 The Washington Post, Everything’s becoming a subscription, and the pandemic is partly to
`blame (June 1, 2021), https://www.washingtonpost.com/business/2021/06/01/subscription-boom-
`pandemic/ (“‘Subscription services are a sneaky wallet drain,’ said Angela Myers, 29, of
`Pittsburgh. ‘You keep signing up for things and they make it really hard to cancel.’”); see also New
`Media and Marketing, The problem with subscription marketing (Mar. 17, 2019),
`https://www.newmediaandmarketing.com/the-problem-with-subscription-marketing/.
`18 Id.
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`years[,]”19 widespread utilization of these misleading dark patterns and deliberate omissions
`persist.
`18.
`Defendant has successfully implemented this tactic. “HelloFresh has been eating up
`meal kit market share. HelloFresh had sizzling sales in the early months of COVID-19, as
`consumers turned to subscription services to fill basic needs. While some of these meal kit
`companies—Home Chef, Marley Spoon, and HelloFresh—experienced rising sales between 2019
`and 2021, HelloFresh’s sales growth outpaced its competitors, which contributed to its increased
`market share.”20 “At the end of 2021, HelloFresh had roughly 7.2 million active customers while
`Blue Apron had only 336,000. In the U.S. alone, the only country where Blue Apron operates,
`HelloFresh has approximately 3.5 million active subscribers.”21 Defendant’s dominance over the
`US food delivery market is directly linked to its aggressive, and deceptive, marketing tactics:
`“HelloFresh may be everywhere in digital marketing––an omnichannel approach if there ever was
`one––but they don’t stop there. HelloFresh spends millions on TV ads, print advertising, and direct
`mail. They’re on the walls of your subway station. They buy billboard space as the opportunity will
`soon disappear.”22
`B.
`Defendant’s Dark Patterns And Online Consumer Complaints About The
`HelloFresh Subscriptions
`19.
`Defendant’s recent growth in revenues and subscriber count with respect to its
`HelloFresh Subscriptions coincides with a sharp decline in subscriber satisfaction as the
`HelloFresh Website and accompanying marketing have become riddled with “dark patterns.” Dark
`patterns are “tricks used in websites and apps that make you do things that you didn't mean to, like
`
`
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`19 Id.
`20 Bloomberg Second Measure, Competition heats up among meal kit companies like Blue Apron
`and HelloFresh (Feb. 23, 2022), https://secondmeasure.com/datapoints/meal-kit-competitors-blue-
`apron-nyse-aprn-hellofresh-customer-retention-market-share/.
`21 Statista, Global number of active subscribers of HelloFresh and Blue Apron 2016-2021 (March
`4, 2022) https://www.statista.com/statistics/947620/meal-kit-companies-number-subscribers-
`worldwide/
`22 BANKNOTES, Meal-Kit world dominance vs. high customer churn (Jun. 28, 2022),
`https://hashtagpaid.com/banknotes/meal-kit-world-dominance-vs-high-customer-churn.
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`Case 5:22-cv-05077-NC Document 1 Filed 09/07/22 Page 11 of 38
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`buying or signing up for something.”23 Consumers have complained on social media outlets both
`about Defendant’s misleading enrollment process as well as its confusing cancellation process.
`One recent consumer complaint posted on Reddit that “I have an offer for 16 free meals plus free
`shipping for the first week. I just want to do one week, but will I be allowed to cancel after I get
`my first box? It would be scheduled for Wednesday, March 23rd. Do I cancel after the first box
`arrives? When do I need to cancel by? I don’t want to be charged after the first box.”24 Yet another
`consumer posted on Twitter “@HelloFresh do not order ! You can never cancel ! I canceled and
`open an email and they reactivated my account. I was on vacation last week, I didn’t have Hello
`fresh on my mind. Think If they do this to enough people, how much money they make!”25
`Defendant’s utilization of these dark patterns – especially in conjunction with its failure to fully
`disclose the terms of its automatic-renewal programs (discussed further below) – has led to a
`reduction in churn rates by making it next to impossible for subscribers to cancel their HelloFresh
`Subscriptions. It has further led to an increase in accidental or unintentional sign-ups by consumers
`for paid HelloFresh Subscriptions plans, in effect increasing subscriber count and, thus,
`Defendant’s overall revenues from renewal fees.
`20.
`In fact, Defendant’s conduct has drawn the attention and ire of customers across the
`country, with countless angry customers taking to the Internet to voice their discontent over
`Defendant’s broken promises. For instance, numerous subscribers have left scathing reviews on the
`Better Business Bureau website, complaining of the unclear billing practices and confusing
`cancellation policy associated with the HelloFresh Subscriptions:26
`///
`///
`///
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`23 https://www.deceptive.design/
`24 https://www.reddit.com/r/hellofresh/comments/teplda/cancelling_after_one_week/
`25 https://twitter.com/AmandaC52824691/status/1556342440436678656
`26 See https://www.bbb.org/us/ny/new-york/profile/food-delivery/hellofresh-0121-
`142623/customer-reviews
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`Case 5:22-cv-05077-NC Document 1 Filed 09/07/22 Page 13 of 38
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`21.
`Other subscribers to the HelloFresh Subscription left similar complaints at
`TrustPilot.com27:
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`27 https://www.trustpilot.com/review/hellofresh.com
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`Case 5:22-cv-05077-NC Document 1 Filed 09/07/22 Page 14 of 38
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`Case 5:22-cv-05077-NC Document 1 Filed 09/07/22 Page 15 of 38
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`22.
`Defendant’s use of dark patterns to enroll customers into its HelloFresh
`Subscriptions is so nefarious that it prompted Truth in Advertising, a consumer protection
`nonprofit organization, to send complaint letters to the Federal Trade Commission (“FTC”) and
`Connecticut’s state regulators detailing Defendant’s deceptive marketing in full.28
`23.
`The above reviews and Truth in Advertising letters are just a sampling of the
`widespread pattern of uniform unlawful conduct by Defendant, underscoring the artifice devised
`and employed by Defendant to lure and deceive millions of consumers into enrolling, and
`remaining enrolled, in its paid HelloFresh Subscription programs.
`C.
`California’s Automatic Renewal Law
`24.
`In 2010, the California Legislature enacted the Automatic Renewal Law (“ARL”),
`Cal. Bus. & Prof. Code §§ 17600, et seq., with the intent to “end the practice of ongoing charging
`of consumer credit or debit cards or third-party payment accounts without the consumers’ explicit
`consent for ongoing shipments of a product or ongoing deliveries of service.” Cal. Bus. & Prof.
`Code § 17600 (statement of legislative intent). More recently, in 2018, California’s Senate Bill 313
`amended Section 17602 of the ARL, adding new requirements meant to increase consumer
`protections for, among other things, orders that contain free trial and promotional pricing, and
`subscription agreements entered into online.
`25.
`The ARL makes it “unlawful for any business making an automatic renewal or
`continuous service offer to a consumer in this state to do any of the following:”
`
`Fail to present the automatic renewal offer terms or
`(1)
`continuous service offer terms in a clear and conspicuous manner
`before the subscription or purchasing agreement is fulfilled and in
`visual proximity, or in the case of an offer conveyed by voice, in
`temporal proximity, to the request for consent to the offer. If the
`offer also includes a free gift or trial, the offer shall include a clear
`and conspicuous explanation of the price that will be charged after
`the trial ends or the manner in which the subscription or
`purchasing agreement pricing will change upon conclusion of the
`trial.
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`28 See Exhibits A and B.
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`Case 5:22-cv-05077-NC Document 1 Filed 09/07/22 Page 16 of 38
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`Charge the consumer’s credit or debit card, or the
`(2)
`consumer’s account with a third party, for an automatic renewal
`or continuous service without first obtaining the consumer’s
`affirmative consent to the agreement containing the automatic
`renewal offer terms or continuous service offer terms, including
`the terms of an automatic renewal offer or continuous service
`offer that is made at a promotional or discounted price for a
`limited period of time.
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`Fail to provide an acknowledgment that includes the
`(3)
`automatic renewal offer terms