On May 21, the U.S. District Court for the Western District of Washington granted in part, denied in part, and deferred in part cross-motions for summary judgment in an action brought by the FTC against a bill payment service provider and two of its officers. The FTC alleged the defendants violated Section 5 of the FTC Act and GLBA by deceiving consumers into believing the company was an official payment channel for their billers, and by misrepresenting that consumers would only pay the amount entered during the bill pay process when additional delivery fees were charged by the company later in the process. The FTC also alleged violations of ROSCA by failing to disclose material terms or obtain consumers’ express informed consent in connection with the company’s subscription service.

The court granted the FTC’s motion for summary judgment on the ROSCA claims against the bill payment service provider as to liability only, finding that the company’s subscription service employed a negative option feature and is thus subject to ROSCA’s requirements. The court found that the company violated ROSCA by collecting consumers’ billing information before disclosing the subscription’s material terms. The court also found the company’s disclosures regarding delivery fees and subscription pricing were neither clear nor conspicuous, noting that the company’s representation that subscribers pay all their bills without delivery fees was “unequivocal and false” and that the fee waiver limitation was buried behind two hyperlinks while the subscription price was not prominently displayed. The court also found that, because of the company’s failure to conspicuously disclose material terms, consumers could not provide express informed consent under ROSCA.

As to the FTC Act claims, the court denied both parties’ cross motions for summary judgment, finding “genuine issues of material fact” as to whether the company’s advertisements and website created a net impression likely to mislead reasonable consumers. The court similarly deferred ruling on the GLBA claim, based on its finding that material fact disputes exist as to whether the alleged practices by the company were likely to mislead reasonable consumers, issues that were central to the GLBA claims. The court also denied summary judgment on the individual officers’ liability as to the ROSCA claims, finding material issues of fact as to each officer’s knowledge of the violations of ROSCA. The court ordered the parties to mediate on or before June 30.