On Monday, a class action plaintiff filed a lawsuit against the NFL for allegedly enrolling customers in its NFL+ Premium subscription without their consent or disclosing subscription (autorenewal) billing terms, and for failing to allow customers to easily cancel the automatically recurring membership fees. Although plaintiffs filing these lawsuits often invoke statutes specifically regulating autorenewal programs, the plaintiff here sued under broader consumer protection statutes and common law. This case is just one of many demonstrating that sellers are exposed to suits for autorenewal infractions even under laws that do not target autorenewal programs.
In this new case, the plaintiff alleges that he purchased a monthly GamePass subscription in 2021. However, the NFL automatically converted his subscription into an NFL+ subscription in 2022 without his clear knowledge or consent, and without disclosing the subscription terms.
He also alleges that the NFL made it difficult for customers to cancel their subscriptions. First, according to the plaintiff, when he went to the website he could not find the cancellation mechanism. When he found a link labeled "cancellation," it provided instructions that were "unclear and non-intuitive such that Plaintiff could not adequately navigate and complete the process." Second, he asserts that he removed the subscription and payment information from his account then deleted it entirely. But, he asserts, he did not receive an email confirmation of these steps. Next, he alleges he was charged again through another payment method, even though he allegedly removed the payment method from his account. After his cancellation, he had no access to his account and therefore was charged for a service he could not use.
The plaintiff also argues that no telephone support number existed for NFL+, but when he called a customer care number for the NFL shop, the representative stated she could not help him about issues related to NFL+ and could not connect him with anyone who could help.
Next, the plaintiff asserts that he attempted to email NFL support and ten days later, he received a response from a chatbot that also could not access his subscription. Only after this chat, plaintiff alleges, was his account canceled, but he did not receive a refund for unused months.
Such allegations are often found in complaints alleging violations of statutes regulating autorenewal questions, such as California Business & Professions Code Section 17600. (You can read our blog on recent updates to state autorenewal laws here.) But the lawsuit does not specifically cite violations of state autorenewal statutes, even though the plaintiff seeks to represent a class of consumers in Florida and New York, which have specific state laws addressing subscription programs. Instead, the complaint alleges violations of state consumer protection laws, conversion, fraud, and unjust enrichment. Plaintiff also seeks to represent a second class of consumers in Iowa, Kansas, Montana, Alaska, Arkansas, Wyoming, West Virginia, and Utah.
The plaintiff also asserts that the NFL used "dark patterns," a new buzzword that categorizes so-called manipulative design tactics and is gaining traction in recent cases challenging negative option programs. In particular, the complaint alleges that NFL "has a scientifically designed process" to reduce "churn" (i.e., customer cancellations), so that NFL can "scientifically ensure that no more than a fixed percentage of users will successfully navigate the gauntlet of obstacles laid down in front of them if they decide to cancel." The complaint also alleges that NFL's "intentionally slow responses are designed to frustrate customers like Plaintiff who seek valid refunds of services they did not sign up for, and who have cancelled their services." You can read about dark patterns here or here, or listen to our webinar here.
The lawsuit demonstrates that class action plaintiffs are not slowing down in their challenges of automatic renewal lawsuits, and that they will bring claims under deceptive trade statutes and common law, even under state laws that do not specifically govern automatic renewal laws.