EcommerceBytes-NewsFlash, Number 2383 - October 04, 2010     2 of 6

eBay Sellers Win Class Action Status in Auction-Duration Lawsuit

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Two sellers sued eBay separately in 2007 alleging that eBay failed to give them the full duration for their auctions listings. Michael Ewert filed a class-action lawsuit against eBay in April, alleging that "customers routinely receive less auction time than they paid and selected." The Missing Link Inc. filed a similar lawsuit that August. Three years later and the Court has granted the motion to certify class and will rule on whether the two cases should be consolidated.

eBay argued that the plaintiffs were not typical of the class "because the class includes many sophisticated business entities likely to have interests and motivations different from those of named plaintiffs" - in class action lawsuits, the claims of the representative parties must be typical of those of the class.

eBay also contended there was a conflict of interest between named plaintiffs and other class members because named plaintiffs are seeking an injunction requiring eBay to extend the duration of a listing whenever there is a delay to compensate for lost listing time. According to eBay, many sellers want their listings to end at a specific time and thus would be harmed rather than benefited from such an injunction.

In addition, eBay argued that damages for breach of contract could not be established using class-wide evidence because "(1) there is insufficient data on the duration of listing delays; (2) plaintiffs cannot prove that any damages exist; and (3) even if there are damages in individual cases, there is no way to determine which class members are entitled to damages and the amount of damages to which they are entitled."

Nevertheless, the Court granted plaintiff's motion to certify class on Thursday, with the class defined as follows:

"All eBay customers, beginning on April 20, 2003, who advertised a listing for sale on using the Sell Your Item form and using the "start listing when submitted" default selection for listing start time. Excluded from the class are (a) claims based on listings with the "Buy It Now" option where the item was sold at the "Buy It Now" price; (b) defendant eBay and its subsidiaries, affiliates, officers, directors, agents and employees; (c) any government entity; (d) any judge or judicial officer presiding over this matter and his or her immediate family members ; (e) claims for personal injury and wrongful death; and (e) any and all legal representatives of the parties and their employees."

The court denied class certification of plaintiffs' CLRA (Consumers Legal Remedies Act) claim and denied their motion to strike eBay's expert report.

A hearing is scheduled for November 5 on the question of whether the two cases should be consolidated and the appointment of class counsel; briefs are due by October 15, 2010.

Ewert v. eBay Inc. documents can be found on the website

About the author:

Ina Steiner is co-founder and Editor of EcommerceBytes and has been reporting on ecommerce since 1999. She's a widely cited authority on marketplace selling and is author of "Turn eBay Data Into Dollars" (McGraw-Hill 2006). Her blog was featured in the book, "Blogging Heroes" (Wiley 2008). Follow her on Twitter at @ecommercebytes and send news tips to

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