SAN FRANCISCO — The lead plaintiff in a proposed class action against Spotify USA Inc. has caused some static for the case. But the lawsuit could still rock and roll.
Spotify faces allegations that it charged thousands of users in California for premium accounts—which cost $9.99 a month—that they didn’t actually use or want, after being enticed to sign up for a trial. Lawyers for the plaintiffs argue the company failed to get users’ consent for a paid subscription, in violation of a California statute called the Automatic Renewal Law.
The problem, a federal judge wrote Thursday, is that their lead plaintiff in fact did use the premium service he obtained. And not just for one or two days.
Rather, plaintiff Gregory Ingalls “used Spotify Premium on 52 separate days and streamed over 1,000 songs during the three months he paid for it,” wrote U.S. District Judge William Alsup of the Northern District of California in an order denying class certification.
“This was contrary to Ingalls’ prior representations to the court that he did not use Spotify Premium after his free trial ended but was charged for it nonetheless,” Alsup added.
Ingalls’ lawyers at the Los Angeles firm Milstein Jackson Fairchild & Wade tried to explain away the discrepancy by saying Ingalls mistakenly thought he was using Spotify’s free service. But the judge rebuffed that excuse as “implausible given the differences between Spotify Premium and Spotify’s free service, which would be evident to a regular user like Ingalls.”
That doesn’t mean the lawsuit is going away for Spotify, though. Alsup said Spotify has admitted that approximately 116,650 California users were charged at least one time for Spotify’s paid service even though they had not used it.
Based on that, the judge said that if the plaintiffs’ attorneys could identify a “problem-free plaintiff,” he would be “inclined to certify a class of California residents who subscribed to a free trial, thereafter did not use the service, but were nevertheless charged for it.”
“This is the clearest-cut group that was likely misled to their detriment due to alleged violations of the Automatic Renewal Law,” he added.
It’s not yet clear whether Ingalls’ attorneys have yet identified a substitute lead plaintiff who would fit the bill. Milstein Jackson partner Gillian Wade, one of the attorneys leading the case, could not be immediately reached for comment Friday. Also representing the plaintiffs are LeonardMeyer and The Casey Law Firm.
Spotify is represented by Davis Wright Tremaine attorney Joseph Addiego III. Neither Addiego nor the company immediately responded to messages seeking comment.