Question

SCENARIO:

Marcus, feeling stressed out from work, decided to search for a meditation app for his phone that would help him relax during the day. One app, CalmDown, appeared to be promising. It didn't have any reviews yet and looked to be a brand-new app, so he decided to try it out. He downloaded the app to his phone and opened it up. The first screen required he enter in his name and email address. At the very bottom of the screen it had some small writing, but Marcus didn't notice it and hit the continue button.

Had Marcus clicked on the link at the bottom of the screen, he would have seen the following:

The second screen stated "Three-day trial version- Free! $59.99 annual fee thereafter." Marcus was annoyed that the app would cost him almost $60 but figured he would set a reminder on his phone to cancel the app before the trial period expired so he wouldn't get charged. Plus, he wanted to see the app in action. If it was actually worth the price, he wouldn't mind paying the annual fee. He clicked "Continue" and put in his bank card information on the next screen. The following screen asked Marcus a series of questions about his stress level and what he felt caused stress in his life. He clicked "high" and "work" as the level and cause. He then completed the first CalmDown meditation in the app, but was not impressed with its functionality. Deciding he would cancel his subscription immediately, he went into the profile settings to try to find the cancel option but couldn't. He searched every possible place on the app but didn't see a way to cancel the subscription. Marcus decided to try to find the app's developer through their website, but a quick search didn't turn up anything. Already stressed and becoming more frustrated, Marcus decided to contact the app store. They informed him that he should be able to go into his app store account and cancel the subscription there. However, when Marcus went there, he didn't see the app as an option or as a subscription. Thinking that maybe his subscription didn't process, he just deleted the app from his phone.

Marcus didn't give the app or the subscription any more thought, becoming increasingly more distracted by the amount of stress at work. Four months later, Marcus was looking at his bank account online and noticed it was lower than it should have been. He began reviewing the charges and noticed multiple charges for $59.99 to a merchant named "CDgotU." He immediately remembered the app and contacted his bank to dispute the charges. His bank replied that due to the charges being debit withdraws he needed to dispute them within 2 days of being made. Moreover, if he had been diligent about watching his account, they could have put a block on the account and the remaining fraudulent charges would have been prevented. The bank representative also told him that he should try to get a refund from the company that charged him. After making his case with the bank representative for several hours about how he tried to cancel his subscription, he was unsuccessful. The bank's representative was able to provide Marcus a phone number attached to the Merchant account, but when Marcus called the number it was disconnected. The bank could not provide him with any additional information such as a company address or website.

After more internet searching, Marcus saw a number of other complaints online about the app, and noticed it had been removed from the app store and was no longer available for download. Marcus decided to bring an action against the company for fraud, breach of contract, conversion, and several other claims in his home state of Vermont.

Multiple Choice

1. The maker of CalmDown argues that it should not be subject to the jurisdiction of any state court other than Alaska. Which of the following, if true, is CalmDown's best argument against being subject to any other state's jurisdiction?

a. Its principle place of business is Alaska and it does not have locations in any other state.b. The amount in controversy is not over $75,000.c. It merely conducted some activity outside of Alaska and that activity took place through a website.d. This is not a federal question.

2. Could Marcus bring his action in federal court?

a. Yes, because there is concurrent jurisdiction.b. No, because fraud and contract breach is not a federal question.c. Yes, because there is likely diversity of citizenship.d. No, because even if there is diversity of citizenship, the amount in controversy is too low.

3. Can Marcus compel the bank or the app store to provide additional information about the creator of CalmDown in order to determine the creator's location and potential assets?

a. Yes, but he must subpoena these records prior to the filing of the complaint.b. Yes, he can file interrogatories during the discovery process to both the bank and the app store.c. No, these records are not subject to being subpoenaed due to their confidential nature.d. Yes, he can subpoena records during the discovery process from both, but the bank and the app store may ask the judge to deny the request or limit the request due to privacy concerns.

4. If Marcus cannot find a physical address to serve the maker of CalmDown and convinces a judge that the best way to serve the company is through a notice via email to t..e@CD8765lkapp.com, what must he first show?

a. That service by traditional means has failed and service via email to this address is reasonably calculated to provide notice and an opportunity for the app makers to respond.b. That he has stated a claim upon which relief could be granted in his petition which would necessitate service.c. That service via email is reasonably calculated to protect the privacy of the maker of CalmDown.d. That the maker of CalmDown is an incorporated business within the state of Vermont.

5. If the maker of CalmDown receives Marcus' properly served complaint and files a motion to dismiss, is the court likely to grant it?

a. Yes, because there is no justiciable controversy.b. No, because Marcus' claims are ones on which relief could be granted.c. Yes, if the court finds that CalmDown did not have sufficient minimum contacts with Vermont.d. Yes, because the terms of service specifically call out arbitration as the only method for relief.