Superior Iron Man Cannot Violate Consumer Protection Laws

Iron Man has moved to San Francisco in Superior Iron Man. Now Tony Stark is going out of his way to make issues like $4,000 a month for a one-bedroom apartment, and landlords requiring proof of income of at least $100,000, seem meek. The residents of San Francisco [in the Marvel Universe] would think of those problems in terms of “the good old days” of high rent and corporate buses.

IronMan-Mark1-GoldenGateBridgeHere is what Tony Stark did: 1) Gave everyone in San Francisco with a smartphone Extremis 3.0 as a downloadable app; 2) the app had a clickware agreement and was a “techno-virus designed to transform you into the very best ‘you’ you could be. Beauty, muscle tone, health…” 3) After a one month orgy of feeling and looking good, the one month free trial of Extremis 3.0 ended, and the app became $99 a day to use (or roughly $3,011.24 a month or $36,135 a year).

Playing the role of an expert witness, assuming the population of San Francisco is 837,442, and estimating 80% of the population has smartphones, then potentially as many as 66,995,360 people would be paying Tony Stark $3,011.24 a month for Extremis 3.0. These numbers could vary, but Stark could be making trillions of dollars a month.

Tony Stark’s one-month free deal, followed by a $99 a day fee, makes Extremis 3.0 look less like in-app purchases and more like crack cocaine. Stark’s business plan was to get the population of San Francisco physically addicted to his app, followed by extreme profiteering.

Apps in the real world do not physically change people. iPhone users cannot use the new health feature to trim 30 pounds with a swipe or change their hair color from brown to blonde to red in an hour. Extremis is a very fictional app.

Litigation over in-app purchases is very real. Parents of children who made in-app purchases of “currency” in a supposedly free apps without the parents’ consent, sued Apple alleging Apple violated the California Consumers Legal Remedies Act (“CLRA”), violation of California’s Unfair Competition Law (“UCL), breach of the implied covenant of good faith and fair dealing, and restitution /unjust enrichment/ money had and received. In re Apple In-App Purchase Litig., 855 F Supp 2d 1030, 1038 [ND Cal 2012].

Tony Stark having a “free app” that switched to one costing $99 a day after one-month’s use could violate the CLRA, which is to deter “unfair methods of competition and unfair or deceptive acts or practices,” under Cal. Civ. Code section 1770(a). In re Apple In-App Purchase Litig., at *1038. Moreover, conduct designed “likely to mislead a reasonable consumer” violates the CLRA. Id.

Josh_vs_IronManDid the Extremis 3.0 terms of service state that the app was free for only one month? If the terms of service did not state anything about the cost becoming $99 a day after one month, such a large omission could be actionable. Applying the elements from In re Apple In-App Purchase Litig., that Tony Stark actively misrepresented the cost of Extremis 3.0 as free as follows:

(1) Representing that goods have uses or characteristics they do not have, Cal. Civ. Code section 1770(a)(5);

(2) Representing that goods are of a particular standard or quality when they are of another, Cal. Civ. Code section 1770(a)(7); and

(3) Representing that a transaction confers or involves rights, remedies, or obligations, which it does not have or involve, or which are prohibited by law, Cal. Civ. Code section 1770(a)(14).

In re Apple In-App Purchase Litig., at *1038.

The fact that Extremis 3.0 was free, then jumped in price to $99 a day, that physically makes people addicted to the app would violate the law. Where was it disclosed that people could become addicted to the app? Stark represented that users would be the “best ‘you’ you could be,” but there was nothing about physical addiction. Factor in the cost of the app, recovering Extremis 3.0 users could bring a case against Stark.

There is a good argument to be made that the cost of $99 a day would violate other consumer safety laws as well. A cleaver California Attorney General and US Attorney could also try prosecuting Tony Stark as a drug dealer, which would be highly untested, but possibly could work as Tony Stark is destroying lives with a controlled substance that is a techno-virus.