Case: 09-20648   Document: 00511211937    Page: 1   Date Filed: 08/23/2010




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                  Fifth Circuit

                                               FILED
                                                               August 23, 2010
                               No. 09-20648
                                                               Lyle W. Cayce
                                                                    Clerk




MICHAEL P. BOTT; DELORIS GORDON; LAUREL HUDSON;
JONATHAN MOOREFIELD; SUSAN OLMSTED; PHILLIP PACETTI;
RENEE WEST; KEVIN WOOLLEY; ASHLEY MITCHELL;
MILES-KEVIN BARON, Doing Business as Victory-Riders.com,

                                         Plaintiffs-Appellants,

versus

VISTAPRINT USA INC.; ADAPTIVE MARKETING LLC;
VERTRUE INC.,

                                         Defendants-Appellees.




                Appeal from the United States District Court
                     for the Southern District of Texas
                          USDC No. 4:08-MD-1994
   Case: 09-20648       Document: 00511211937 Page: 2             Date Filed: 08/23/2010
                                    No. 09-20648

Before DAVIS, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*


       Plaintiffs sued under the Electronic Funds Transfer Act, the Electronic
Communications Privacy Act, the Massachusetts Unfair Trade Practices Act,
and the common law, alleging that they were tricked into enrolling in certain
membership programs when they used defendants’ websites. The various ac-
tions were transferred to the district court a quo by the Judicial Panel on Multi-
district Litigation. Defendants moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6), asserting that their webpages were not deceptive as a matter
of law, because they contained sufficient disclosures such that no reasonable
person could be deceived.
       The district court agreed with defendants and dismissed. In a well-rea-
soned, detailed Memorandum and Order entered on August 31, 2009, the court
held that the subject webpages were not deceptive as a matter of law and that
“plaintiffs’ allegation regarding the deceptive nature of the webpages at issue is
clearly and unequivocally refuted by the webpages themselves . . . .” In re Vista-
Print Corp. Mktg. & Sales Practices Litig., No. MDL 4:08-MD-1994, 2009 U.S.
Dist. LEXIS 77509, at *14 (S.D. Tex. Aug. 31, 2009) (Atlas, J.). The court prop-
erly observed that
       [a] consumer cannot decline to read clear and easily understandable
       terms that are provided on the same webpage in close proximity to
       the location where the consumer indicates his agreement to those
       terms and then claim that the webpage, which the consumer has
       failed to read, is deceptive.

       In addition, the district court examined the claims made under each as-


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.

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   Case: 09-20648      Document: 00511211937 Page: 3            Date Filed: 08/23/2010
                                   No. 09-20648

serted cause of action and theory of recovery. The court’s detailed analysis is
compelling in explaining that each claim is entirely without merit.
       We have reviewed the briefs and applicable law and have consulted applic-
able portions of the record. There is no error. The judgment is AFFIRMED, es-
sentially for the reasons stated by the district court.1




       1
        We decline plaintiffs’ request that we take judicial notice of certain documents not
presented to the district court.

                                             3