Illinois attorney David Fish has filed a class action lawsuit against infamous spyware/adware company 1800Solutions Inc. Last month Fish survived a motion to dismiss in a separate suit he brought against the spyware/adware company DirectRevenue LLC.
In that suit DirectRevenue sought to stay the litigation by arguing that, in accordance with the ProCD case, an arbitration clause in the End User License Agreement ("EULA") governed. The district court rejected this argument. The court said that unlike the plaintiff in ProCD who could simply return the product if he didn't like the EULA that came in the packaging, a user who installs spyware as a byproduct of downloading something else from the Internet often has a difficult time removing the spyware. The court also said there was a triable issue of fact as to whether the user ever saw the EULA, since there was testimony that although a link to the EULA appeared in at least some cases, the user did not have to click on it to download the software. Unfortunately for Fish and his clients, that ruling may conflict with a recent Illinois appeals court opinion in Hubbert v. Dell Corp. that held that a valid contract was formed with Dell by the use of hyperlinks to various parts of the contract even though the user did not have to click on the links to make a computer purchase.
If Fish prevails, the next step in the campaign against the spyware and adware companies may be to sue them even when they make users click on EULA's but bury the information about spyware way down in the contract. In any event, best of luck to Fish and his clients.