Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 1 of 35
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`
`
`
`Peter D. Hawkes (OSB No. 071986)
`peter@angelilaw.com
`Edward A. Piper (OSB No. 141609)
`ed@angelilaw.com
`ANGELI LAW GROUP LLC
`121 SW Morrison Street, Suite 400
`Portland, OR 97204
`Tel: 503.954.3783/Fax: 503-227-0880
`
`Victor Jih (CA SBN 186515)
`vjih@wsgr.com
`WILSON SONSINI GOODRICH &
`ROSATI, P.C.
`633 West Fifth Street, Suite 1550
`Los Angeles, CA 90071-2027
`Tel: 323.210.2900/Fax: 866.974.7329
`
`Amit Q. Gressel (CA SBN 307663)
`agressel@wsgr.com
`Jordan A. Nelson (CA SBN 327915)
`jordan.nelson@wsgr.com
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`One Market Street, Spear Tower, Suite 1550
`San Francisco, CA 94105-1126
`Tel: 415.947.2000/Fax: 415.947.2099
`
`Vivek Tata (NY SBN 5480470)
`vtata@wsgr.com
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`1301 Avenue of the Americas, 40th Floor
`New York, NY 10019-6022
`Tel: 212.999.5800/Fax: 212.999.5899
`
`
`Attorneys for Defendants GOOGLE LLC, d/b/a YOUTUBE,
`and YOUTUBE, LLC
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF OREGON
`PORTLAND DIVISION
`
`VICTOR WALKINGEAGLE and NATHAN
`BRIGGS, on behalf of themselves and all other
`similarly situated,
`
`Plaintiffs,
`
`v.
`
`GOOGLE LLC, d/b/a YOUTUBE, a Delaware
`limited liability company, and YOUTUBE,
`LLC, a Delaware limited liability company,
`
`Defendants.
`
`Case No.: 3:22-cv-00763-MO
`
`DEFENDANTS GOOGLE LLC, d/b/a
`YOUTUBE and YOUTUBE, LLC’S
`MOTION TO DISMISS PLAINTIFFS’
`FIRST AMENDED COMPLAINT
`
`Oral Argument Requested
`
`

`

`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 2 of 35
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`TABLE OF CONTENTS
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`Page
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`LOCAL RULE 7.1(a) COMPLIANCE .......................................................................................... 5 
`
`MOTION......................................................................................................................................... 5 
`
`MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 5 
`
`INTRODUCTION .......................................................................................................................... 5 
`
`FACTUAL BACKGROUND ......................................................................................................... 6 
`
`A. 
`
`B. 
`
`YouTube Music and YouTube Premium ................................................................ 6 
`
`Plaintiffs and The Present Action ........................................................................... 9 
`
`ARGUMENT ................................................................................................................................ 11 
`
`I. 
`
`YOUTUBE’S DISCLOSURES COMPLY WITH THE ARL ......................................... 11 
`
`A. 
`
`B. 
`
`C. 
`
`D. 
`
`E. 
`
`YouTube Discloses The Key Offer Terms ........................................................... 12 
`
`YouTube’s Disclosures are Clear and Conspicuous ............................................. 16 
`
`YouTube Conspicuously Discloses The Price In Visual Proximity ..................... 18 
`
`YouTube Obtains Affirmative Consent ................................................................ 20 
`
`YouTube’s Receipt Fulfills The Acknowledgment Requirement ........................ 22 
`
`II. 
`
`YOUTUBE’S DISCLOSURES COMPLY WITH THE FOL ......................................... 25 
`
`A. 
`
`B. 
`
`C. 
`
`YouTube Discloses The Information Regarding The Terms of The Free Offer .. 25 
`
`YouTube Obtains Affirmative Consent ................................................................ 33 
`
`YouTube Cancels Free Trials When Consumers Make Reasonable Efforts to
`Cancel Using Cancellation Mechanism Provided................................................. 34 
`
`CONCLUSION ............................................................................................................................. 34 
`
`
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`Page 2 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 3 of 35
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`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...........................................................................................................27
`Boyack v. Regis Corp.,
`812 F. App’x 428 (9th Cir. 2020) ......................................................................................27
`Dohrmann v. Intuit, Inc.,
`823 F. App’x 482 (9th Cir. 2020) ....................................................................19, 20, 21, 33
`Ebner v. Fresh, Inc.,
`838 F.3d 958 (9th Cir. 2016) ...................................................................................8, 10, 14
`Hall v. Time, Inc.,
`2020 WL 2303088 (C.D. Cal. Mar. 13, 2020),
`aff’d 857 F. App’x 385 (9th Cir. 2021) ...................................................................... passim
`J.K.J. v. City of San Diego,
`42 F.4th 990 (9th Cir. 2022) ..................................................................................11, 16, 24
`Lee v. Ticketmaster L.L.C.,
`817 F. App’x 393 (9th Cir. June 12, 2020) ........................................................................22
`Lundbom v. Schwan's Home Serv.,
`No. 3:18-cv-02187-IM, 2020 WL 2736419 (D. Or. May 26, 2020)..................................19
`Mendoza v. Lithia Motors,
`No. 6:16-CV-01264-AA, 2019 WL 1440260 (D. Or. Mar. 30, 2019),
`aff’d, 818 F. App’x 715 (9th Cir. 2020) .............................................................................14
`Rutter v. Apple Inc.,
`No. 21-cv-04077-HSG, 2022 WL 1443336 (N.D. Cal. May 6, 2022) ..............................13
`Taylor v. Nike, Inc.,
`No. 3:16-CV-00661-MO, 2017 WL 663056 (D. Or. Feb. 17, 2017) ...................6, 8, 10, 14
`Tritz v. U.S. Postal Serv.,
`721 F.3d 1133 (9th Cir. 2013) ...........................................................................................11
`Whitaker v. Tesla Motors, Inc.,
`985 F.3d 1173 (9th Cir. 2021) .....................................................................................11, 24
`STATUTES
`9 V.S.A. § 2454a(a)(2) ...................................................................................................................21
`815 ILCS 601/1 § 10(b-5) ........................................................................................................24, 30
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`Page 3 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 4 of 35
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`Cal. Bus. & Prof. Code § 17602 ........................................................................................20, 24, 30
`ORS 646.608 ............................................................................................................................11, 35
`ORS 646.638 ......................................................................................................................10, 11, 16
`ORS 646.644 .......................................................................................................................... passim
`ORS 646A.293 ....................................................................................................................... passim
`ORS 646A.295 ....................................................................................................................... passim
`ORS 646A.710 .........................................................................................................................14, 19
`ORS 646A.735 .........................................................................................................................14, 19
`RULES
`Fed. R. Civ. P. 12(b)(6)....................................................................................................................5
`L. R. 7.1(a) .......................................................................................................................................5
`OAR 137- 020-0020(2)(j) ..............................................................................................................19
`
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`Page 4 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 5 of 35
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`LOCAL RULE 7.1(a) COMPLIANCE
`
`Pursuant to Local Rule 7.1(a), counsel for Defendants GOOGLE LLC, d/b/a YOUTUBE,
`
`and YOUTUBE, LLC (“Defendants”) conferred in good faith via telephone with counsel for
`
`Plaintiffs VICTOR WALKINGEAGLE and NATHAN BRIGGS (“Plaintiffs”) regarding this
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`motion. The parties were unable to resolve their dispute.
`
`MOTION
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`Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants hereby move to dismiss
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`Plaintiffs’ Amended Complaint (“Amended Complaint” or “Am. Compl.”) on the ground that it
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`fails to state a claim upon which relief may be granted. This Motion is supported by the
`
`Memorandum of Law below.
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`
`INTRODUCTION
`
`Plaintiffs’ Amended Complaint relies on disclosure requirements found nowhere in
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`Oregon’s Automatic Renewal Law (“ARL”), ORS 646A.295, or Free Offer Law (“FOL”), ORS
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`646.644. Plaintiffs resort to invented requirements and conclusory allegations because they cannot
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`show a violation of the actual provisions of these statutes.
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`The ARL and FOL are complementary and straightforward—and YouTube complied with
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`both statutes. YouTube clearly and conspicuously discloses the membership program consumers
`
`are signing up for, the cost of that membership, when recurring billing starts, and that they can
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`cancel online at any time. This information is presented in easy to understand, simple terms, in
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`contrasting sizes and type, and all of it is close to the button a consumer “clicks” to confirm their
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`membership. The same information is contained in an email along with a link to cancel.
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`Page 5 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 6 of 35
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`Unable to allege any violation of the actual statutory requirements, Plaintiffs argue that the
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`purchase flow must contain unspecified “magic language” to be compliant, there must be a
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`separate checkbox for the renewal terms, all disclosures must appear “immediately above” the
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`request for consent, and the disclosures must include “full” cancellation and refund policies. The
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`ARL does not require any of this, and neither does the FOL. If Plaintiffs had their way, disclosures
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`would be cramped and confusing instead of clear and conspicuous.
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`Because Plaintiffs cannot state a claim, they cannot represent a class. See Taylor v. Nike,
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`Inc., No. 3:16-CV-00661-MO, 2017 WL 663056, at *1 (D. Or. Feb. 17, 2017) (dismissing class
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`complaint where plaintiff had no claim, because “[e]ven named plaintiffs who represent a class
`
`must allege and show that they personally have been injured.” (citation omitted)) (Mosman, J.).
`
`FACTUAL BACKGROUND
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`A.
`
`YouTube Music and YouTube Premium
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`YouTube, and its parent company Google, offer a variety of applications and services
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`across platforms. These applications—such as YouTube Music and YouTube Premium—can be
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`accessed and viewed via a website or through a mobile application installed on a user’s phone,
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`tablet, or other mobile device. Am. Compl. ¶¶ 2-3, 58.
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`YouTube Music is a streaming music service similar to Spotify and Apple Music. YouTube
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`Music offers both free and paid subscriptions. The free YouTube Music service offers access to a
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`catalog of millions of songs, and users who upgrade to a paid subscription get ad-free access. See
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`id. YouTube Premium is a paid service that offers access to the ad-free YouTube Music streaming
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`service and ad-free access to YouTube videos. Id. Together, YouTube Music and YouTube
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`Premium have approximately 25 million subscribers. Am. Compl. ¶ 25.
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`Page 6 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 7 of 35
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`To sign up for either the paid YouTube Music or YouTube Premium services, consumers
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`are taken through a standard purchase flow and presented with a final purchase screen that is the
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`same for both services (the “YouTube Music/Premium Buycart”) shown below:
`
`
`
`
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`See Am. Compl. ¶ 55. As seen above, YouTube informs users how much members will be charged
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`(here, $11.99/mo), how often they will be charged (monthly), when recurring billing starts (in
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`this example August 20, 2022), and that they can cancel at any time. Once this sign-up process is
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`complete, YouTube immediately sends an acknowledgment email (the “YouTube Music/Premium
`
`receipt”) confirming the details of the membership. The YouTube Music/Premium receipt repeats
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`all of the previously disclosed offer terms from the YouTube Music/Premium Buycart, including
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`Page 7 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 8 of 35
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`the subscription price, that the charges will be monthly, and the date that billing will start.
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`Am. Compl. ¶ 71.1
`
`The YouTube Music/Premium receipt also includes a section titled “Cancellations,”
`
`which advises members that they can “cancel your Music Premium membership any time. If you
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`cancel, you’ll still have access to Music Premium Benefits until the end of your billing period.”
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`Id. The “Cancellations” section includes a hyperlink, set off in blue, to the cancellation page in the
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`member’s account settings, enabling them to cancel in just a few clicks.
`
`
`1 Plaintiffs purport to represent a class including members of YouTube TV. Am. Compl. ¶ 132.
`YouTube TV also provides consumers with an ARL-compliant Buycart and Acknowledgement
`email. See id. ¶¶ 56, 72. However, neither plaintiff ever alleges that they purchased a YouTube TV
`membership. If neither Plaintiff can state a claim for the products he did purchase, the putative
`class Complaint must be dismissed. See Taylor, 2017 WL 663056, at *1; Ebner v. Fresh, Inc., 838
`F.3d 958, 962 (9th Cir. 2016) (affirming dismissal of putative class complaint for failure to state a
`claim). Accordingly, this brief shows why Plaintiffs cannot state a claim about the products they
`did purchase, YouTube Music and YouTube Premium, and does not address Plaintiffs’ assertions
`about YouTube TV.
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`Page 8 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 9 of 35
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`See Am. Compl. ¶ 71.
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`B.
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`Plaintiffs and The Present Action
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`
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`Plaintiff Walkingeagle (“Walkingeagle”) subscribed to YouTube Music in December 2021
`
`through a free trial offer. Am. Compl. ¶ 9. His YouTube Music subscription was renewed for $9.99
`
`in February 2022. Id. Walkingeagle does not dispute that he saw the YouTube Music Buycart and
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`received the YouTube Music acknowledgment email, but asserts that he was “not made aware of
`
`the fact that his [YouTube] Subscription would automatically renew after the initial free trial
`
`period, of the length of the free trial period, or of when the first charge would occur[.]” Id.
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`Page 9 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 10 of 35
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`Walkingeagle alleges that he spent “an excessive amount of time searching through the YT
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`Website for a cancellation button or other similar online mechanism for cancellation,” but was
`
`unable to cancel. Id. ¶ 99. He asserts that he has been “unable to successfully cancel his [YouTube]
`
`Subscription” and continues to be enrolled in the product against his desires. Id. ¶ 100.
`
`Plaintiff Briggs (“Briggs”) signed up for YouTube Music in April 2021. Am. Compl. ¶¶ 10,
`
`113. Like Walkingeagle, Briggs asserts that he was “not placed on notice of several material terms
`
`associated with” his YouTube Music subscription. Id. ¶ 10. His subscription renewed in May 2021,
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`and he asserts that he “promptly” attempted to cancel but “struggled” to do so, finally canceling
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`his debit card.2 Id.
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`On May 25, 2022, Plaintiffs brought a putative class action Complaint alleging that
`
`YouTube allegedly failed to comply with the Oregon Automatic Renewal Law.3 YouTube moved
`
`to dismiss on August 22, 2022, Dkt. 15, and Plaintiffs filed the Amended Complaint on September
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`6, 2022, Dkt. 19. The Amended Complaint makes the same allegations as the Complaint regarding
`
`the Oregon ARL, but also alleges that YouTube violated the FOL.
`
`The ARL and FOL have no private right of action, so Plaintiffs have sued under the UTPA,
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`which allows “a person that suffers an ascertainable loss of money or property” to sue for “willful”
`
`
`2 Plaintiffs’ Complaint alleges that Briggs “did not actually learn that his [YouTube] Subscription
`was an automatic renewal until late May 2022 or early June 2022.” Am. Compl. ¶ 10. These dates
`appear to be errors, as the Complaint itself was filed on May 25, 2022, and Plaintiffs elsewhere
`assert that Briggs acted “promptly” when his subscription renewed in May 2021. Am. Compl. ¶ 10.
`In light of the UTPA’s one-year statute of limitations, ORS 646.638(6), Plaintiff Briggs’ claim
`may be time-barred. If this case proceeds, Defendant reserves the right to assert that Plaintiff
`Briggs’ claims are time-barred.
`
`3 As set forth above, neither plaintiff ever alleges that they purchased a YouTube TV membership.
`Accordingly, this brief shows why Plaintiffs cannot state a claim about the products they did
`purchase (YouTube Music and YouTube Premium) and why the class Complaint must be
`dismissed, and does not address Plaintiffs’ assertions about YouTube TV. Cf. Taylor, 2017 WL
`663056, at *1; Ebner, 838 F.3d at 961-962.
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`Page 10 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 11 of 35
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`violations of unlawful practices, such as violations of the ARL or FOL. ORS 646.608(1)(sss);
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`646.608(1)(ttt); 646.638(1). The Amended Complaint asserts these claims on behalf of a putative
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`class of members of YouTube Premium, YouTube Music, and YouTube TV, and on behalf of a
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`putative subclass of individuals who subscribed to a free trial offer for those paid services.
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`ARGUMENT
`
`To survive a motion to dismiss, Plaintiffs must allege “well-pleaded facts, not legal
`
`conclusions, that plausibly give rise to an entitlement to relief.” Whitaker v. Tesla Motors, Inc.,
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`985 F.3d 1173, 1176–77 (9th Cir. 2021) (cleaned up). The Court need not accept as true
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`“conclusory allegations that are contradicted by documents referred to [or incorporated] in the
`
`complaint”—in this case, screenshots of the YouTube Buycarts and Acknowledgment Emails.
`
`J.K.J. v. City of San Diego, 42 F.4th 990, 997 (9th Cir. 2022) (as amended) (quoting Tritz v. U.S.
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`Postal Serv., 721 F.3d 1133, 1135 n.1 (9th Cir. 2013)). Plaintiffs fail to state a claim because
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`YouTube’s disclosures comply with the ARL and the FOL.
`
`I.
`
`YOUTUBE’S DISCLOSURES COMPLY WITH THE ARL
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`The Complaint alleges that YouTube violates the ARL in five ways: by (1) failing to
`
`present the automatic renewal offer terms, Am. Compl. ¶ 59; (2) failing to do so “in a clear and
`
`conspicuous manner,” id.; (3) failing to present those terms “in visual proximity to the request for
`
`consent,” (id., citing ORS 646A.295(1)(a)); (4) charging members without first obtaining
`
`affirmative consent (id., citing ORS 646A.295(1)(b)); and (5) failing to provide an
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`acknowledgement with the terms, cancellation policy, and cancellation instructions (id., citing
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`ORS 646A.295(1)(c) and ORS 646A.295(2)).
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`Page 11 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 12 of 35
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`A.
`
`YouTube Discloses The Key Offer Terms
`
`Oregon’s ARL
`
`requires disclosure of
`
`the “automatic
`
`renewal offer
`
`terms.”
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`ORS 646A.295(1)(a). The “automatic renewal offer terms” that must be disclosed are:
`
`(a) that the subscription or purchasing agreement will continue until the consumer cancels;
`(b) the description of the cancellation policy that applies …; (c) the recurring charges that
`will be charged to the consumer's credit or debit card … and, if the amount of the charge
`will change, the amount to which the charge will change, if known; (d) the length of the
`automatic renewal term or that the service is continuous…
`
`ORS 646A.293(5)(a)-(d).
`
`The YouTube Music/Premium Buycart contains all of the required disclosures.
`
`First, YouTube discloses that subscribers pay a “Monthly charge,” which tells users the
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`“length of the automatic renewal term,” as required by the ARL. See ORS 646A.293(5)(d). The
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`
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`Page 12 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 13 of 35
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`monthly recurring nature is reinforced by other disclosures on the page, including that the price is
`
`per month (“/mo.”), is for a “membership,” and “will renew automatically every month.”
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`Second, immediately to the right of “Monthly charge,” YouTube discloses the amount of
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`“the recurring charges that will be charged.” See ORS 646A.293(5)(c).
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`Third, YouTube discloses that “Billing starts on [date] … and will renew automatically
`
`every month,” which makes clear that the subscription “will continue … until the consumer
`
`cancels,” ORS 646A.293(5)(a). Not only does this disclosure mirror the statutory text of the ARL
`
`by referring expressly to “automatic[] renew[al],” but it tells users that “[b]illing starts” on a given
`
`day but “renew[s] automatically” after that, underscoring the recurrence.
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`Fourth, YouTube informs users that they can “Cancel anytime in Settings,” which is a
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`“description of the cancellation policy that applies” to YouTube’s subscription products. ORS
`
`646A.293(5)(b). A disclosure that users can “Cancel anytime” adequately describes YouTube’s
`
`cancellation policy. See, e.g., Hall v. Time, Inc., 2020 WL 2303088, at *1, *4 (C.D. Cal. Mar. 13,
`
`2020) (disclosure that users could “cancel[] at any time” adequately stated the cancellation policy
`
`under similar California ARL), aff’d 857 F. App’x 385 (9th Cir. 2021); Rutter v. Apple Inc., No.
`
`21-cv-04077-HSG, 2022 WL 1443336, at *6 (N.D. Cal. May 6, 2022) (disclosure that customers
`
`can “stop using the service at any time” and cancel “by contacting Customer Support” is compliant
`
`with California’s ARL). While not required, YouTube also discloses its refund policy, stating that
`
`“[p]ayments won’t be refunded for partial billing periods.” Am. Compl. ¶ 55.
`
`Plaintiffs eschew specifics and instead rely on conclusory and self-serving allegations.
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`Instead of addressing what YouTube’s Buycarts disclose, they vaguely allege that because of
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`YouTube’s “missing and otherwise deficient” disclosures, they were “unaware that [they had been]
`
`enrolled [] in an ‘automatic renewal’ programs under which their YT Subscription would renew
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`Page 13 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 14 of 35
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`each month and results in continuous monthly automatic renewal charges.” Id. ¶ 67. They also
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`allege that they both believed that the subscription would “automatically terminate,” Am. Compl.
`
`¶¶ 90 (Walkingeagle), 119 (Briggs), which conflicts with the plain text of the disclosures. These
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`allegations do not show a violation of the ARL’s requirements, and nowhere in their 184-paragraph
`
`complaint do Plaintiffs describe specific disclosures that were actually “missing” or provided in a
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`“deficient” manner, or any that implied that the subscription might “automatically terminate.”
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`Instead, the Complaint relies on absurd assertions and invented requirements to conjure violations
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`of the ARL for YouTube Premium and YouTube Music.4
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`Plaintiffs ultimately seem to be arguing that because YouTube did not use the precise
`
`wording from the ARL, the disclosures are non-compliant. But unlike some other consumer
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`statutes, the ARL statute does not mandate any “magic words” for compliant disclosures.
`
`Compare, e.g., ORS 646A.735 (mandating a specific disclosure in equity conveyancing) and ORS
`
`646A.710 (same, for foreclosure consulting agreements) with ORS 646A.295.
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`YouTube’s disclosures can “easily be understood by the average person.” Cf. Mendoza v.
`
`Lithia Motors, No. 6:16-CV-01264-AA, 2019 WL 1440260, at *5-6 (D. Or. Mar. 30, 2019) (noting
`
`that “strict recitation of the statute is not required to meet the clear and conspicuous standard” in
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`motor vehicle sales disclosures), aff’d, 818 F. App’x 715 (9th Cir. 2020). They do not use legalese
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`or complicated words (or, just as bad, Plaintiffs’ unclear “formal cancellation” phrasing). The
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`disclosure specifically tells members—in almost the same words that Plaintiffs assert are
`
`
`4 Because Plaintiffs’ claims for the services they did purchase cannot survive a motion to dismiss,
`the Court need not reach their similarly conclusory allegations for YouTube TV, which they did
`not purchase. Cf. Taylor, 2017 WL 663056, at *1; Ebner, 838 F.3d at 961-962. In any event, as is
`evident on the face of the screenshot in Plaintiffs’ Complaint, the YouTube TV disclosures are
`clearly compliant with the ARL: they set the ARL offer terms apart from non offer term text using
`contrasting type, lines and color blocking, expressly provide that users will be charged “the price
`above monthly until you cancel,” and provide the terms in visual proximity to the request for the
`user’s consent to the ARL terms. See Am. Compl. ¶ 56.
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`Page 14 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 15 of 35
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`missing—that “Billing … will renew automatically every month.” Am. Compl. ¶ 55 (emphasis
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`added). YouTube reiterates elsewhere on the page that these charges are “monthly,” leaving no
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`ambiguity that charges will continue “automatically” until canceled, as required by the ARL.
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`Plaintiffs do not point to any part of the disclosure that would cause a user to think that cancellation
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`might not be necessary—and they cannot, because YouTube clearly informs users that they can
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`“Cancel anytime,” clearly implying service is ongoing until canceled.
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`Plaintiffs next complain that the Buycart’s “description of the cancellation policy” is not
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`“complete,” in three ways: it does not include the “full cancellation policy”, it “contain[s] no
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`explanation of how to cancel,” and it fails to provide information about refunds. Am. Compl. ¶ 65.
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`All three are invented requirements. The ARL’s requirement is simple: businesses must provide a
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`“description of the cancellation policy” in the Buycart, ORS 646A.293(5)(b) (emphasis added).
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`The statute does not require YouTube include the “full cancellation policy,” which would
`
`overwhelm the Buycart with small-print and render it cramped and hard to read—exactly the
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`opposite of what the ARL mandates. A “description of the cancellation policy” is also not
`
`“information regarding how to cancel,” which the ARL mandates must be provided in the
`
`acknowledgement email, not
`
`in
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`the Buycart. Compare ORS 646A.295(1)(a) with
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`ORS 646A.295(1)(c). Nor does the ARL mandate disclosure of a refund policy in the Buycart. See
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`ORS 646A.293(5); cf. Hall, 2020 WL 230388, at *1-2, *4 (finding statement “cancel[] at any time”
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`to be compliant even though there was no information about refunds, which was included in the
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`post-sale acknowledgement email), aff’d, 857 F. App’x at 385. Even so, the YouTube Buycarts
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`clearly disclose that there are “No refunds for partial months,” Am. Compl. at ¶ 55—flatly
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`contradicting Plaintiffs’ false allegation that YouTube fails to disclose that refunds are not
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`available once a consumer has “commenced using the relevant [YouTube Subscription].” Id. ¶ 65.
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`Page 15 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 16 of 35
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`Lastly, Plaintiffs allege that YouTube fails to disclose a purported policy that members
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`must cancel their subscriptions “at least 24 hours before the end of the current period.” Am. Compl.
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`¶ 65. The allegations and documents referenced in the Amended Complaint establish that this “24
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`hour” cancellation policy is doubly irrelevant to Plaintiffs’ claims, because it was for a service
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`they did not subscribe to and was not in force during the time period at issue in the Complaint. The
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`provision of the Terms of Service cited in the Complaint show that the 24 hour policy was only
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`applicable to YouTube TV. Id., n. 56 (citing “Additional Terms for YouTube TV,” located at
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`https://www.youtube.com/t/terms_paidservice (“Paid TOS”)). Plaintiffs did not subscribe to
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`YouTube TV, so these allegations do not state a claim. Also, the terms referenced in the Complaint
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`make clear the so-called “24 hour” provision is limited to subscriptions purchased through the
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`Apple iTunes store.5 See Paid TOS (stating “Your subscription will be billed to your iTunes
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`account within 24 hours before the end of the current period….” (emphasis added)). Neither
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`Plaintiff, however, has alleged purchases through the Apple iTunes (or Apple App) store. In fact,
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`as Plaintiffs acknowledge in their Complaint, see Am. Compl. ¶ 2 n.2, YouTube stopped accepting
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`signups through Apple devices in March 2020,6 well before Plaintiffs’ claimed injuries and before
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`the one-year statute of limitations under the UTPA. ORS 646.638(6).
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`B.
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`YouTube’s Disclosures are Clear and Conspicuous
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`The ARL requires the disclosure of “the automatic renewal offer terms or continuous
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`service offer terms in a clear and conspicuous manner.” ORS 646A.295(1)(a). Disclosures are
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`5 Because Plaintiffs’ allegations concerning the purported 24- hour cancellation policy reference
`and rely on the Paid Terms of Service, see Am. Compl. ¶ 65 n.56, they are incorporated into the
`Amended Complaint and the Court can consider them on a motion to dismiss. See J.K.J., 42 F.4th
`at 997.
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`6 See Am. Compl. ¶ 2 n.2 (quoting https://www.macrumors.com/2020/02/13/youtube-tv-app-
`store-subscriptions-ending/).
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`Page 16 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 17 of 35
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`“clear and conspicuous” if they are “in contrasting type, font or color to the surrounding text of the
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`same size, or set off from the surrounding text of the same size by symbols or other marks, in a manner
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`that clearly calls attention to the language.” ORS 646A.293(2).
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`
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`YouTube discloses each of the offer terms required by the ARL in a clear and conspicuous
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`manner, using contrasting type, marks, and white space to “clearly call[] attention to the language,” id.
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`The renewal term (monthly) and price are bolded, as is the disclosure that billing for the membership
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`renews “automatically every month.” The description of the cancellation policy—that members can
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`“[c]ancel anytime” but will not be refunded for partial months—is set off from the line immediately
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`above and below with contrasting type. To set off the disclosures visually, YouTube uses a gray line
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`to separate the charging information at the top of the Buycart from the user’s payment information in
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`Page 17 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 18 of 35
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`the middle. White space is used to emphasize the automatic renewal and cancellation disclosures
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`immediately below the payment information, so that the prospective member’s eye is drawn to the text.
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`C.
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`YouTube Conspicuously Discloses The Price In Visual Proximity
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`The ARL also requires that the “automatic renewal offer terms” be “in visual proximity…
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`to the request for consent to the offer.” ORS 646A.295(1)(a).
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`YouTube’s disclosures are clearly in visual proximity to the “request for consent,” which
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`in the case of the Buycarts is the “Start [] Trial” button at the bottom of the Buycart screen.
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`Disclosures about the automatically renewing nature of the subscription, the monthly term,
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`and the cancellation policy are made in a block of text above the button, separated by only three
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`Page 18 – Defendants’ Motion to Dismiss FAC
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`Case 3:22-cv-00763-MO Document 25 Filed 09/27/22 Page 19 of 35
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`lines of text. On the same screen, and separated by only four more lines of text, YouTube clearly
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`discloses the price of the monthly subscription, set off from other text by white space. No scrolling
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`is required, including on smaller phone screens. The words that separate the price from the button
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`are themselves part of the terms of the recurring offer, including the disclosures required by the
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`ARL. There is no “clutter” or distraction that might draw the consumer’s eye away from the
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`disclosures. Cf., e.g., Dohrmann v. Intuit, Inc., 823 F. App’x 482, 484 (9th Ci