So What Is Deception Anyway?
The US Court of Appeals for the Sixth Circuit decided a kind of unusual case recently that raises this somewhat philosophical question. The case is Ferron v. Echostar Satellite, LLC. Ferron, the plaintiff, is a Columbus lawyer who generates business by soliciting e-mails and then suing the folks who send them based on their failure to comply with disclosure requirements under the Ohio Consumer Sales Practices Act. I am not making this up. Echostar was Ferron’s most recent
victim, er, adversary. It seems Ferron contacted Echostar and asked them to detail for him their terms of service over the phone. He then asked them to send him e-mails about their service. When those e-mails did not contain all of the detail concerning Echostar’s terms of service, Ferron pounced, er, filed a complaint. And that’s where he discovered that some defendants fight back. Echostar pointed out to the court that the OCSPA requires that the consumer actually be deceived. And since Ferron knew what Echostar’s terms of service were before he got the e-mails, he wasn’t, you know, deceived. Ferron claimed that the court’s ruling would foreclose legitimate, er, other consumers’ claims under the OCSPA. The court, however, noted: “Simply put, the only persons foreclosed by today’s ruling are individuals who solicit emails from an advertiser after having researched and discovered the additional terms the advertisement allegedly excludes.” Nice when common sense prevails.