EBay Shortchanges Time That Items Appear on Site, Suit Says

EBay may violate its own terms of service by delaying the search engine availability of new listings for several hours after sellers submit them, a California federal judge has ruled.

The online auction giant says the delay in searchability is immaterial because a listing begins the moment the user completes a "sell your item" form and the item is assigned a unique Web address.

However, U.S. District Judge Ronald Whyte said an item listed on eBay, which has millions of listings, should be deemed "generally unavailable" to site users if they cannot search for it and can find it only by typing in a specific Web address.

The Missing Link filed a class-action lawsuit in the U.S. District Court for the Northern District of California. The plaintiff, which sells bathroom fixtures via a storefront on eBay, alleges that the site makes listings available for less than the promised duration.

The plaintiff says it paid for a 24-hour listing, but the item it wished to sell was available for only 20 hours because the listing did not become searchable by users until four hours later.

EBay follows the same practice for fixed-duration listings that it promises will run for three-, five-, seven- and 10-day periods, according to the suit.

Missing Link also says the auctioneer retroactively raised the fee for its "good until canceled" listing, in which an item remains available until it sells or the seller removes it.

The site imposed the higher fees on new listings and improperly applied the increase to listings created before the change became effective, the suit says.

The complaint alleges breach of contract, unfair competition and unjust enrichment.

EBay moved to dismiss the suit in its entirely.

It said the possibility of a delay in searchability is disclosed in its "sell your item" form and "help" page. Judge Whyte, however, said it is unclear whether those documents are incorporated into the site's user agreement.

He noted that the plaintiff's breach-of-contract claim is based on the user agreement.

The judge dismissed the contract claim concerning the "good until canceled" listings, saying eBay provided adequate notice of the change.

The auctioneer also said Missing Link's state-law-based unfair-competition claim concerning the fixed-duration listings should be dismissed.

The plaintiff cannot show any tangible loss stemming from the searchability delay, and the allegation actually concerns the loss of expected profits, which is not compensable, eBay said.

Missing Link countered that its loss resulted from a decrease in the value of the listing it bought because its merchandise was not searchable for the entire duration that was promised.

Judge Whyte allowed the claim to proceed, saying Missing Link did suffer an "injury in fact."

He dismissed the unjust-enrichment claim, however, saying it is a "quasi-contract" claim under California law that cannot be asserted where an actual, binding contract exists.

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