On October 18, the Consumer Financial Protection Bureau (CFPB) filed a complaint in a Texas federal court against Active Network LLC (Active) for allegedly tricking people, when trying to sign up for a fundraising race or other community event, into subscribing to its discount club Active Advantage.
Specifically, the complaint alleges Active inserted a webpage into its online event registration that provided an offer for a free trial enrollment into Active Advantage. Many consumers clicked on the highlighted call-to-action button — typically labeled “Accept” — because they purportedly believed they were accepting the event charges. Allegedly unbeknown to consumers, the button proceeded to enroll them into an Active Advantage trial membership, which automatically converted to a paid subscription with an annual fee of $89.95, unless consumers opted out or canceled. A confirmation page sent after the transaction included event registration fees, but allegedly did not list the annual fee for Active Advantage, even for consumers who clicked the Accept button. The CFPB alleges this conduct violates the Consumer Financial Protection Act as being deceptive and abusive acts or practices.
In a press release following the complaint’s filing, CFPB Director Rohit Chopra said: “The CFPB is suing [Active] for illegally charging hundreds of millions of dollars in enrollment fees through its use of digital dark patterns and online trickery … . People who thought they were just signing up to run in a charity race found out too late that the company was running away with their money.” The CFPB alleges that since July 21, 2011, Active has generated more than $300 million in fees from memberships through the inserted enrollment offer. And since that time, members have redeemed only a fraction of alleged membership benefits.
The CFPB further alleges that Active increased their discount club’s annual membership fee without sending written notice to its members in violation of the Electronic Fund Transfer Act and Regulation E.
The CFPB is not the only federal agency focusing on alleged “online trickery” through the use of “dark patterns.” As we discussed here, the Federal Trade Commission (FTC) recently released a “Bringing Dark Patterns to Light” report, detailing the rise in sophisticated “dark patterns” that the FTC asserts are designed to trick and trap consumers. The report highlighted multiple enforcement actions under each of the dark pattern categories and concluded with a stern warning that “[f]irms that nonetheless employ dark patterns, take notice: where these practices violate the FTC Act, ROSCA, the TSR, TILA, CAN-SPAM, COPPA, ECOA, or other statutes and regulations enforced by the FTC, we will continue to take action.”