Stone v. Compuserve Interactive Services, Inc.

804 So. 2d 383, 2001 WL 1189999
CourtDistrict Court of Appeal of Florida
DecidedOctober 3, 2001
Docket4D00-4295
StatusPublished
Cited by22 cases

This text of 804 So. 2d 383 (Stone v. Compuserve Interactive Services, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stone v. Compuserve Interactive Services, Inc., 804 So. 2d 383, 2001 WL 1189999 (Fla. Ct. App. 2001).

Opinion

804 So.2d 383 (2001)

Michael and Melissa STONE, Appellants,
v.
COMPUSERVE INTERACTIVE SERVICES, INC., a Delaware Corporation, Appellee.

No. 4D00-4295.

District Court of Appeal of Florida, Fourth District.

October 3, 2001.

*385 Byron G. Petersen of Petersen & Hawthorne, P.A., Fort Lauderdale, for appellants.

Joseph P. Klock, Jr., Janet T. Munn, and Susan Torres of Steel Hector & Davis LLP, Miami, and Thomas E. Gilbertsen of Collier Shannon Scott, PLLC, Washington, DC, for appellee.

GROSS, J.

Michael and Melissa Stone appeal both the trial court's (1) denial of their motion for class certification in their action against CompuServe Interactive Services, Inc.; and (2) granting of CompuServe's motion for summary judgment dismissing their complaint. We affirm the denial of class certification and reverse the dismissal of the complaint.

The Stones' suit against CompuServe asserted declaratory judgment and breach of contract claims on behalf of themselves and a nationwide class of similarly situated plaintiffs. At issue was a $400 rebate CompuServe offered to consumers who purchased certain computers and signed up for three years of internet service with CompuServe.

The complaint alleged that CompuServe failed to pay promised rebates within the time frame provided by its contract with the Stones and other similarly situated consumers. The pleading defined two classes of rebate applicants: (1) those who did not receive a rebate; and (2) those who received the rebate "in an untimely fashion." The rebate program promotional materials and "mail-in" application forms indicated that consumers should allow "8-10 weeks from rebate approval" to receive a rebate. To apply for the rebate, consumers had to complete and timely submit an authorized rebate application.

After the complaint identified the two classes of rebate applicants, count I sought declaratory relief to define the term "approval" as used in the CompuServe materials and to determine a "reasonable time" for CompuServe's performance. Count II sought damages for breach of contract for failing to perform within the "reasonable time" determined by the court.

After some discovery, the trial court conducted an evidentiary hearing on the Stones' motion for class certification. By the time of the hearing, CompuServe had moved for summary judgment.

The Stones purchased a qualifying computer on August 26, 1999. Using a promotional CD provided with the computer, they logged onto CompuServe and subscribed for three years of internet service at a cost of $21.95 per month. Michael Stone used his credit card to sign up for the internet service.

On August 27, 1999, Michael Stone completed a mail-in application and mailed it to the address provided. By the end of October, the Stones had not received a rebate, so they contacted CompuServe to ask about it. CompuServe customer service *386 representatives advised the Stones that their credit card was over its credit limit and there had been difficulty billing the card for monthly service fees.

CompuServe records showed that a rebate check was sent to Mr. Stone in November, 1999. However, by that time he had moved from Fort Walton Beach to Niceville, Florida. He never received the check. Ultimately, the Stones received a $400 rebate check on February 19, 2000, two weeks before filing their lawsuit.

At the hearing on the motion for class certification, the Stones presented affidavits from aggrieved consumers and from a "webmaster" who had created an internet site at the Stones' direction for consumers to lodge complaints about CompuServe's rebate program. They produced 430 complaints from consumers who had not received rebates or who had received them in an untimely manner. The Stones presented newspaper articles in which CompuServe representatives admitted that between one and ten percent of the rebate payments were late.

CompuServe offered the testimony of two employees from its marketing department. Their testimony focused on the factors a court might consider in determining whether a consumer had received a rebate within a "reasonable time."

Under the rebate program, consumers received a rebate application from the store where they purchased a qualifying computer. As the trial court found:

This "mail-in" rebate application requires a customer to provide certain information to qualify for a rebate. The customer installs [the internet service] software on [the] new computer before filling out the mail-in rebate application form. The installation is done first to ensure that the customer's new [internet service] member name is written on the rebate application form when submitted. The new member name is required to confirm that an applicant has signed up for the [internet service]. The customer also must provide information such as his or her name, address and telephone number, credit card number and type, and the UPC bar code number from the computer box. The customer must also sign the rebate application form, and provide a copy of the computer purchase sales receipt with the signed rebate application. Applications are directed to a post office box provided on the rebate application form.

CompuServe hired a coupon fulfillment company, Gage Marketing Services, Inc., to administer some portions of the program. Gage collected the applications from the post office box, and reviewed them for completeness. If an application was incomplete, Gage rejected it by sending a letter to the applicant explaining what additional information was needed and providing a toll-free phone number for the customer to call to obtain more information. Gage recorded some information from each application into a computer data base and transmitted the data to Compu-Serve for further processing.

CompuServe reviewed the data it received from Gage to determine that: (1) there was a valid member name in its databank that matched the member name given on the rebate application; (2) the account had not been terminated or the credit card rejected; (3) the member registered with a valid promotion code; (4) the member had not already received a rebate; (5) the account had not already been canceled or terminated by Compu-Serve; (6) the member registered after July 1, 1999; (7) the applicant submitted a useable screen name; (8) the member was maintaining the account in good standing without an outstanding balance; and (9) *387 the credit card remained valid through one additional twenty-eight day billing cycle.

If an application failed one of these criteria, CompuServe rejected it and directed Gage to send a letter to the customer explaining why the application was rejected and what could be done to correct the situation.

The trial court considered CompuServe's testimony that

the particular reason any individual rebate application [was] rejected necessarily affect[ed] how long it [took] for an application to be approved, assuming any defects in the originally rejected application [were] cured. Accordingly, the time it [took] for an applicant to receive a rebate check varie[d] depending, first, on whether the initial application was correct and, second, whether the credit card on the account remained valid. If an application include[d] erroneous or missing information, the reason an application [was] rejected and how an applicant respond[ed] to the notice are additional factors that impact[ed] how long it [took] to approve and award a rebate check to any individual applicant.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Florida Department of Transportation v. Tropical Trailer Leasing, LLC
229 So. 3d 1251 (District Court of Appeal of Florida, 2017)
Sosa v. SAFEWAY PREMIUM FINANCE CO.
73 So. 3d 91 (Supreme Court of Florida, 2011)
Law Offices of David J. Stern, P.A. v. Banner
50 So. 3d 1221 (District Court of Appeal of Florida, 2010)
Canal Insurance Co. v. Gibraltar Budget Plan, Inc.
41 So. 3d 375 (District Court of Appeal of Florida, 2010)
SAFEWAY PREMIUM FINANCE CO. v. Sosa
15 So. 3d 8 (District Court of Appeal of Florida, 2009)
KIA MOTORS AMERICA CORPORATION v. Butler
985 So. 2d 1133 (District Court of Appeal of Florida, 2008)
In re Welding Fume Products Liability Litigation
245 F.R.D. 279 (N.D. Ohio, 2007)
Goswami v. Lennox Industries, Inc.
947 So. 2d 1221 (District Court of Appeal of Florida, 2007)
Rollins, Inc. v. Butland
932 So. 2d 1172 (District Court of Appeal of Florida, 2006)
EQUITY RESIDENTIAL PROPERTIES v. Yates
910 So. 2d 401 (District Court of Appeal of Florida, 2005)
Chase Manhattan Mortg. Corp. v. Porcher
898 So. 2d 153 (District Court of Appeal of Florida, 2005)
Freedom Life Ins. Co. of America v. Wallant
891 So. 2d 1109 (District Court of Appeal of Florida, 2004)
Philip Morris USA Inc. v. Hines
883 So. 2d 292 (District Court of Appeal of Florida, 2004)
Earnest v. Amoco Oil Co.
859 So. 2d 1255 (District Court of Appeal of Florida, 2003)
Liggett Group, Inc. v. Engle
853 So. 2d 434 (District Court of Appeal of Florida, 2003)
Hutson v. Rexall Sundown, Inc.
837 So. 2d 1090 (District Court of Appeal of Florida, 2003)
TERRY L. BRAUN, PA v. Campbell
827 So. 2d 261 (District Court of Appeal of Florida, 2002)
Montgomery v. New Piper Aircraft, Inc.
209 F.R.D. 221 (S.D. Florida, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
804 So. 2d 383, 2001 WL 1189999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stone-v-compuserve-interactive-services-inc-fladistctapp-2001.