No Breach of Contract Claim from Mid-Stream Change of WSJ Online Pricing – Lebowitz v. Dow Jones

[Post by Venkat Balasubramani]

Lebowitz v. Dow Jones & Co., 06 Civ. 2198 (MGC) (S.D.N.Y.; Mar. 12, 2012)

Dow Jones operates WSJ Online. Historically, it offered WSJ Online subscribers access to WSJ Online and Barron’s Online. At some point, Dow Jones decided to spin-off Barron’s. It gave existing subscribers the choice between accessing Barron’s instead of WSJ Online or accessing WSJ Online and paying a separate fee (pro-rated and up to a maximum of $20) to access Barron’s.

Plaintiffs brought a putative class action, arguing that a mid-stream change in the subscription price was a breach of the subscriber agreement. Alternatively, plaintiffs argued that if the agreement was interpreted to allow Dow Jones to unilaterally change the price this would render the contract illusory. The contract provision allowed Dow Jones to:

change the fees and charges then in effect, or add new fees or charges, by giving [subscribers] notice in advance.

The court disagrees, noting that contractual provisions which allow unilateral changes are not illusory as long as the right to make these changes are constrained in some manner. Looking to case law in New York, the court says that requiring an obligor to exercise its discretion in a reasonable manner or a manner evincing good faith sufficiently constrains the obligor’s discretion. The court says this is the case here:

there is no evidence that Dow Jones used the discontinuance provision to deprive plaintiffs of an unreasonably large part of WSJ Online’s content, and there is no reason to interpret this provision as permitting such extreme behavior. Dow Jones acted reasonably, and therefore this provison of the subscriber agreement is not illusory.

Plaintiffs also argued that Dow Jones failed to give advance notice of the price change and this constituted a breach. Dow Jones had provided notice via a “pop-up” box, which indicated that it was conveying an “IMPORTANT NOTICE TO READERS.” This box appeared on each homepage. When users clicked on this box, a notice appeared which informed subscribers of the spin-off and the fact that the pricing would be changing.

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There have been a slew of disputes involving contracts which one party says they can modify at any time. Harris v. Blockbuster presented this problem and Eric’s advice was on point: “STOP PUTTING CLAUSES INTO YOUR CONTRACTS THAT SAY YOU CAN AMEND THE CONTRACT AT ANY TIME IN YOUR SOLE DISCRETION BY POSTING THE REVISED TERMS TO THE WEBSITE” It doesn’t look like companies have heeded this advice and thus continue to struggle with arguments from consumers that this type of a provision renders contract illusory. Dow Jones dodged a bullet here, and although I’ll leave the contract law 101 deep dive to others, the result here did not comport with basic common sense and equity. It’s as if you sign up to on a month-long plan to purchase a particular type of combo meal deal at McDonald’s and halfway through they come along and change up the combination. Rather than forcing customers to pick between WSJ Online or Barron’s going forward, Dow Jones could have just refunded a portion of the subscription fees. The court’s decision deprives plaintiffs of this choice. It wasn’t clear from the opinion, but it seemed like the decision was made just to separate the two subscriptions–the order did not discuss some compelling reason (other than subscriptions) why Dow Jones made the decision.

Another interesting part of the dispute was how Dow Jones dealt with notice. Dow Jones has to provide subscribers notice in order for the revised terms to be effective. This is another problem area for companies. (See Eric’s post on the Douglas v. Talk America case, where the Ninth Circuit struck down a contract amendment due to failed notice: “Ninth Circuit Strikes Down Contract Amendment Without Notice–Douglas v. Talk America.” Some suggestions as to notice are discussed in that post.) The court here spends two sentences on the adequacy of notice via a pop-up box. The pop-up box method of notice would work in many cases, but it was surprising to see the court ignore the details of the notification here. I suspect other courts would not always be so approving of notice via this method, absent consideration of other facts, such as the size of the box and the overall user experience.

Previous posts:

Vendor Fails to Form Either an Online or Paper Contract With Customers–Kwan v. Clearwire

Zynga Wins Arbitration Ruling on “Special Offer” Class Claims Based on Concepcion — Swift v. Zynga

Judge Can’t Decide if Facebook’s User Agreement is a Browsewrap, But He Enforces It Anyways–Fteja v. Facebook

Stop Saying “We Can Amend This Agreement Whenever We Want”!–Harris v. Blockbuster

Facebook’s “Browsewrap” Enforced Against Kids–EKD v. Facebook

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