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In early February, when Scott Maravilla received his new Dave Matthews Band CD, “Everyday,” from Internet retailer Buy.com, he looked at his receipt and was struck by the $1.95 shipping cost of the lightweight compact disc. Maravilla surmised that the actual shipping cost couldn’t be that much. He went back online and, after reviewing the Buy.com Web site, realized that there was a flat $1.95 shipping fee for all CDs, tapes and DVDs. “Is that fair?” the Miami Shores, Fla., resident wondered. He decided it wasn’t. Now, the law firm of Harke & Clasby in Miami has filed suit in Miami-Dade Circuit Court on behalf of Maravilla in an effort to win class action certification under Florida’s Deceptive and Unfair Trade Practices Act against Buy.com. The lawsuit alleges that the Internet retailer based in Orange County, Calif., has jacked up profits by charging an inflated shipping rate. The lawsuit, however, did not say what the actual shipping costs should be and the attorney in the case said he didn’t know how much it would cost to ship a CD by U.S. mail, but that it would be less than $1.95. “Hundreds of thousands of Buy.com customers have purchased, and continue to purchase, goods from Buy.com with the expectation that, in order to receive their goods, they bear the actual cost of shipping,” asserts the complaint. “In fact Buy.com intentionally and deceptively requires consumers to pay inflated charges — labeled “shipping” charges by Buy.com — which allow Buy.com to collect additional profits for itself.” The company charges a flat “shipping fee” of $1.95 for DVDs, cassettes and CDs and $3.25 for videos, games and books. The potential class would include Florida consumers who purchased such merchandise from Buy.com. Buy.com, which last year was hailed as the “Best e-commerce site” in PC World magazine and the “best overall place to buy” by Computer Shoppers Magazine, says it’s aware of the lawsuit but declined comment or to specify what law firm is representing the company. The case, which could amount to substantial dollars if class action certification is granted, comes on the heels of a similar case involving port fee charges by cruise line operators. It may portend a growing use of class action under the Deceptive and Unfair Trade Practices Act. What makes such suits possible are significant recent rulings by Florida’s 3rd and 4th District Courts of Appeal that allow class certification under the consumer protection statute without the need for plaintiffs to prove a previously essential legal element called individual reliance. The problem in bringing such suits over service fees is that when an individual consumer is allegedly defrauded, the amount of money at issue is so small that it’s highly unlikely any consumer would file suit. But if an entire class can be combined, then a lawsuit can go forward. If courts, however, require a showing of individual reliance to let a suit go forward — that is, that a party relied on a material statement of fact to its detriment and resulting harm — that precludes class certification. To the delight of plaintiffs’ attorneys, two years ago, the 3rd and 4th District Courts of Appeal sided with consumers and ruled that individual reliance is not a required element under Florida’s Deceptive and Unfair Trade Practices Act. The appellate rulings grew out of a variety of lawsuits filed against cruise line operators several years ago. The cruise lines were sued for charging a “port fee” that was not paid to the port but instead went into the corporate coffers of the cruise lines. In the suits, the two appellate courts certified class action cases and ruled that a customer need not have individually relied on the purported fraud in order to make a successful claim under Florida’s consumer protection law. “Reliance and damages are sufficiently shown by the fact that the passenger parted with money for what should have been a ‘pass-through’ port charge, but the cruise line kept the money,” Judge Gerald B. Cope Jr. wrote in a unanimous three-judge panel ruling February 2000. That opinion stunned some veteran attorneys. “It was a surprising construction,” says Joel Perwin, of Podhurst Orseck Josefsberg Eaton Meadown Olin & Perwin in Miami, who represented Miami-based Carnival Corp. in the case. “If you don’t have to prove harm, it makes it substantially easier to prosecute an action.” According to Perwin, consumer statutes in states such as Texas and New Jersey require individual reliance. In the port fee cases, Coral Gables attorney Robert C. Gilbert, who sued the various cruise lines, said that the cases have been settled except for two. The two remaining cases, against Costa and Norwegian Cruise Lines, may be reviewed by the Florida Supreme Court. It remains unclear, however, whether the high court will accept the cases for review. A request for appeal of the 3rd and 4th District Courts of Appeal decision was filed with the high court in 2000. Unless the state supreme court overturns the appellate rulings, individual reliance is not required, at least within the jurisdictions of the 3rd and 4th District. Thus a class action, like the one now sought against Buy.com, can go forward. The stakes are clear: If the individual reliance is required, then there will be no class actions under Florida’s consumer protection law. “If individual reliance is necessary, then you cannot have a class action,” Gilbert says. The attorney behind the suit against Buy.com wholeheartedly agrees. “If individual reliance became necessary, then a lot of people would have no effective remedy,” says David Maher, an associate at Harke & Clasby who is handling the case. “That would be unfortunate.” For now, however, the law appears to be favorable to Harke & Clasby in its effort to win class certification. “The case law is clear,” says Maher. “The port fee cases show that.” Harke & Clasby is not new to bringing class actions under the state consumer protection law. In 2000, it filed a lawsuit in U.S. District Court in Tampa against America Online alleging misleading advertising fraud and fraud under federal law and the Florida’s Deceptive and Unfair Trade Practices Act. The case is pending. In his case against Buy.com, Maher says he likes his chances: “Our prospects are good for protecting consumers in the future and for getting recovery for those in the past.”

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