N.Y. man sues McAfee over antivirus auto-renewal fees

Claims credit card charges 'compulsory,' follows similar suit targeting rival Symantec

The New Yorker who sued Symantec two months ago for automatically renewing his subscription to that company's antivirus software has doubled down by suing rival McAfee over the same practice.

According to the lawsuit, filed March 10 in New York federal court, Kenneth Elan of Port Washington, N.Y., was charged $78.85 in April 2009 for a renewal to his copy of McAfee Security Center Antivirus. Elan claimed that he had not consented to the automatic billing.

"The language of the automatic renewal provision states that automatic renewal is an option of the purchaser," the lawsuit stated, referring to a section of the McAfee end-user licensing agreement (EULA). "[But] despite McAfee's representation, enrollment in the automatic renewal is compulsory with purchase of McAfee's software. Purchasers are not given the option to decide if they want an automatically renewing subscription for the software they are purchasing."

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The New Yorker who sued Symantec two months ago for automatically renewing his subscription to that company's antivirus software has doubled down by suing rival McAfee over the same practice.

According to the lawsuit, filed March 10 in New York federal court, Kenneth Elan of Port Washington, N.Y., was charged $78.85 in April 2009 for a renewal to his copy of McAfee Security Center Antivirus. Elan claimed that he had not consented to the automatic billing.

"The language of the automatic renewal provision states that automatic renewal is an option of the purchaser," the lawsuit stated, referring to a section of the McAfee end-user licensing agreement (EULA). "[But] despite McAfee's representation, enrollment in the automatic renewal is compulsory with purchase of McAfee's software. Purchasers are not given the option to decide if they want an automatically renewing subscription for the software they are purchasing."

Like most security software, McAfee's typically comes with a one-year license, which includes a subscription to new malware signature updates. When that initial signature subscription expires, customers must renew to continue to receive updates that will recognize new threats.

Many antivirus vendors enroll customers in automatic renewal programs when they purchase or activate the software, claiming that it's the only way to guarantee that users stay protected against new threats. McAfee began automatic renewals in 2001, while Symantec followed suit four years later.

McAfee's current EULA is slightly different than Elan's lawsuit described, although recurring renewal remains automatic. "If you have provided McAfee with a valid credit card number or an alternate payment method, your subscription will be automatically renewed (and charged to the account you have provided) for another term at the expiration of your current term," the EULA reads.

Consumers who purchase McAfee security software must agree to the EULA to install the programs, or proceed in the online ordering process.

This is not the first time that McAfee has encountered legal problems over its antivirus renewal practices. In June 2009, New York Attorney General Andrew Cuomo announced that his office had reached a settlement with Symantec and McAfee over consumer complaints that the companies didn't get users' approval to automatically bill them, and had made it difficult for customers to opt out or obtain refunds. Symantec and McAfee paid $375,000 each in penalties, and said they would clarify subscription renewal costs and refund fees to consumers who asked for them within 60 days of being charged. But the agreement, which applied only to New York consumers, did not ban automatic subscription renewals.

Elan charged McAfee with fraud, breach of contract and violations of both California and New York consumer protection laws, and asked the court to award damages to be determined at trial. He also asked the court to grant the lawsuit class-action status, which would open the case to a potential pool of consumers nationwide.