EADY v. TAPFURY LLC et al.

Filing 66

OPINION. Signed by Judge Esther Salas on 4/1/2022. (ek)

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KIRK EADY,
Plaintiff,

Civil Action No.: 17-13483 (ES) (JSA)

v.

OPINION

TAPFURY LLC, et al.
Defendants.
SALAS, DISTRICT JUDGE
Before the Court are cross-motions for summary judgment filed by Plaintiff Kirk Eady and
Defendants TapFury, LLC, TapFury, Inc., PrankDial, LLC, 1 Kickback, Inc., and Fahim Saleh.
(D.E. Nos. 58 & 59). Having considered the parties’ submissions, the Court decides this matter
without oral argument. Fed. R. Civ. P. 78(b); L. Civ. R. 78.1(b). For the reasons set forth below,
the Court DENIES Plaintiff’s motion, GRANTS Defendants’ motion, and enters judgment in
Defendants’ favor.
I.

BACKGROUND
Unless otherwise noted, the following facts are not in dispute. 2 TapFury operated a website

called PrankDial.com. (Defs. SUMF ¶¶ 3 & 87; Eady Mov. Br. ¶ 2). The website offered two
applications designed for customers to make prank phone calls: PrankDial and Evil Operator.
PrankDial allowed a customer to send a spoofed phone call with a pre-recorded message to another
In their briefing, the parties do not distinguish between these seemingly related entities. Accordingly, the
Court will hereinafter refer to them together as TapFury.

1

The Court primarily pulls the facts from Defendants’ statement of undisputed material facts (D.E. No. 58-1
(“Defs. SUMF”)) and the section of Eady’s moving brief titled “Statement of Facts” (D.E. No. 59 (“Eady Mov. Br.”)).
The Court notes that Eady’s “Statement of Facts” does not comply with Local Rule 56.1(a), which requires the
“statement of material facts [to] be a separate document (not part of a brief).”

2

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person. (Eady Mov. Br. ¶ 4). Evil Operator allowed customers to initiate calls between two people
who would believe the other person had initiated the call. (Defs. SUMF ¶¶ 3–4 & 86–93; Eady
Mov. Br. ¶ 5). The customer could then listen to the resulting conversation and record it—without
either person’s knowledge. (Defs. SUMF ¶¶ 3–4, 91 & 93; Eady Mov. Br. ¶ 5). To use either
application, the customer was required to purchase tokens. (Defs. SUMF ¶ 88; Eady Mov. Br. ¶
5).
This case stems from Eady’s use of Evil Operator, for which he was indicted by a federal
grand jury on May 19, 2014, for one count of illegal wiretapping in violation of 18 U.S.C. §
2511(1)(a). See Indictment, United States v. Eady, Crim. No. 14-0277, D.E. No. 8. Section
2511(1)(a) makes it a crime to intentionally intercept or endeavor to intercept any wire, oral, or
electronic communication unless, pursuant to subsection (2)(c), the interceptor is a party to the
communication or a party to the communication consents to interception.
At trial, the Government presented evidence showing that, in spring 2012, Eady used Evil
Operator to surreptitiously listen to and record the phone conversations of other people without
their knowledge or consent. (Defs. SUMF ¶ 5; Eady Mov. Br. ¶¶ 13–15). Eady, the former Deputy
Director of the Hudson County Correctional Center (“HCCC”), targeted senior members of the
Corrections Officers Union and the operator of EDPDLaw.com. (Defs. SUMF ¶ 1; Eady Mov. Br.
¶ 17). Both the union members and EDPDLaw participated in processing grievances against
HCCC’s management, and EDPDLaw published articles critical of management, including Eady.
(Defs. SUMF ¶¶ 21, 34–37 & 42–43). The Government presented evidence at trial suggesting that
Eady’s motive was to harass and retaliate against the targets. (Id. ¶ 6). 3

Eady disputes that his motive was to harass and retaliate, but he concedes that there was testimony at his trial
“as to [his] possible motivation for his use of Evil Operator.” (D.E. No. 60 (“Eady Opp. Br.”) at 6). Moreover, in a
post-trial motion for bail pending appeal, he conceded that his motive was “[t]o counteract and neutralize the untrue
and disruptive articles being published in EDPDLaw.” (D.E. No. 64-4, Ex. G, at 2). He also admitted in his deposition
3

2

At trial, Eady sought to shift blame to TapFury, claiming that TapFury recorded the calls
and caused Eady to believe his conduct was legal. (Id. ¶¶ 81–84 & 101–129). However, the trial
court rejected Eady’s attempts to do so during cross-examination and closing argument, explaining
that TapFury’s involvement was irrelevant and that ignorance of the law is not an excuse to
criminal punishment. (Id. ¶¶ 102, 119–121, 126 & 129).
On March 13, 2015, the jury found Eady guilty by general verdict of one count of violating
§ 2511(1)(a). See Jury Verdict, Eady, No. 14-cr-0277, D.E. No. 44. On September 10, 2015, the
Honorable Jose L. Linares, U.S.D.J., sentenced Eady to a term of imprisonment of 21 months. See
Judgment, Eady, Crim. No. 14-0277, D.E. No. 57. Eady appealed, and the Third Circuit affirmed
his conviction and sentence. See United States v. Eady, 648 F. App’x 188 (3d Cir. 2016). Pertinent
here, the Third Circuit held that Eady was not a “party” to the call because his presence was not
known to the other participants. Id. at 192. Therefore, he could not consent to interception
pursuant to § 2511(2)(c).
Eady now sues Defendants, claiming that they failed to disclose material facts concerning
the legality of Evil Operator, thereby causing him to use the application in violation of federal law.
(D.E. No. 12 (“SAC”)). He brings ten counts in the SAC—the central one being that Defendants
violated the New Jersey Consumer Fraud Act (the “CFA” or “Act”), N.J.S.A. § 56:8-1 et seq. (Id.
¶¶ 63–78). His other counts include a negligent misrepresentation claim, various contract and
quasi-contract claims, and various requests for relief. (Id. ¶¶ 52–62 & 79–108). Both Eady and
Defendants move for summary judgment. (D.E. Nos. 58 & 59).
II.

LEGAL STANDARD
A court may enter summary judgment when there are no genuine issues of material fact

that he used Evil Operator to play a “prank” on people who wrote things online about his personal life. (D.E. No. 583, April 9, 2021 Deposition of Kirk Eady, at 44:9–22).

3

and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A dispute of fact
is “genuine” if it is supported by evidence such that a reasonable jury could find the fact in the
non-moving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if it “might affect the outcome of the suit under the governing law.” Id. A court “should
view the facts in the light most favorable to the non-moving party and draw all reasonable
inferences in that party’s favor,” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013), and the
procedure for summary judgment “is no different where there are cross-motions for summary
judgment,” Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008) (citing Rains v.
Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)).
III.

DISCUSSION
A.

Consumer Fraud Act

Enacted in 1960, the CFA is remedial legislation aimed at correcting and deterring harm
caused by “unlawful sales and advertising practices designed to induce consumers to purchase
merchandise or real estate.” Real v. Radir Wheels, Inc., 969 A.2d 1069, 1075 (N.J. 2009) (quoting
Daaleman v. Elizabethtown Gas Co., 390 A.2d 566, 569 (N.J. 1978)). To that end, the Act
prohibits “any unconscionable commercial practice, deception, fraud, false pretense, false promise,
misrepresentation, or the knowing[] concealment, suppression, or omission of any material fact
with intent that others rely upon such concealment, suppression or omission, in connection with
the sale or advertisement of any merchandise or real estate.” N.J.S.A § 56:8-2. The Act defines
“merchandise” to “include any objects, wares, goods, commodities, services or anything offered,
directly or indirectly to the public for sale.” § 56:8-1(b). And the Act gives a consumer a private
right of action and entitles the consumer to treble damages in a successful suit. § 56:8-19.

4

“An ‘unlawful practice’ contravening the CFA may arise from (1) an affirmative act; (2) a
knowing omission; or (3) a violation of an administrative regulation.” Dugan v. TGI Fridays, Inc.,
171 A.3d 620, 636 (N.J. 2017). A claim for an affirmative act or a violation of an administrative
regulation does not require a showing of knowledge and intent to deceive by the defendant. Id.;
see also Monogram Credit Card Bank of Georgia v. Tennesen, 914 A.2d 847, 853 (N.J. Super.
App. Div. 2007) (“An affirmative misrepresentation, even if unaccompanied by knowledge of its
falsity or an intention to deceive, is sufficient.”). Meanwhile, a claim of knowing concealment
requires the plaintiff to show that the defendant (i) had a duty to disclose (ii) but knowingly
concealed (iii) a material fact (iv) with the intent that the plaintiff relies on the concealment. Judge
v. Blackfin Yacht Corp., 815 A.2d 537, 541–42 (N.J. Super. App. Div. 2003). For all claims under
the Act, the plaintiff must show “a causal relationship between the unlawful fraud and his loss.”
Id. (citing § 56:8-19).
It is unclear whether Eady has brought a claim under the CFA for an affirmative act—that
is, a false or misleading representation. In his moving brief, Eady does not identify a single false
or misleading statement that Defendants made concerning PrankDial or Evil Operator. Instead, he
focuses on Defendants’ failure to disclose that his use of Evil Operator would violate 18 U.S.C. §
2511(1)(a). In his opposition brief, he identifies some statements of Defendants but couches them
in a failure-to-disclose argument. (Eady Opp. Br. at 5–7). The Court will therefore first discuss
Eady’s knowing concealment claim, and then discuss the requirements for an affirmative act claim.
(i)

Knowing Concealment

Eady argues that Defendants violated the CFA by failing to disclose that use of “Evil
Operator” may violate “federal wiretapping statutes.” (Eady Mov. Br. at 11). And he argues that
Defendants were “aware of the possibility.” (Id.). Defendants argue that Eady “was warned that

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unlawful use of Defendants’ product was a violation of its Terms of Service (and/or inherently
unreasonable, and thus unforeseeable).” (D.E. No. 58 (“Defs. Mov. Br.”) at 16). Defendants
further argue that, in any event, they were under no duty to disclose because “[t]he risk of criminal
prosecution when committing crimes is an open and obvious danger.” (D.E. No. 64 (“Defs.
Reply”) at 6). The Court agrees with Defendants: they were not under a duty to disclose.
As a starting point, the Court notes that “[t]he parties have not directed the Court to any
New Jersey case—and the Court’s own research did not uncover any—that squarely addresses . .
. whether, under the NJCFA, advertisers are ever obliged to educate the public on the law
applicable to their product absent other specific authority requiring such disclosures.” Cole v.
Camelback Mountain Ski Resort, No. 16-1959, 2017 WL 2805499, at *3 (M.D. Pa. June 28, 2017).
At least one court has predicted the New Jersey Supreme Court would impose no such obligation
because a legal omission, as opposed to a factual omission, is not the type of omission
contemplated under the CFA; imposing a duty to disclose law would violate the well-known legal
maxim that “[a]ll citizens are presumptively charged with knowledge of the law”; and imposing
such a duty would subject businesses to “unending liability.” Id. at *4–5. The Court agrees that
those reasons suffice to predict that the New Jersey Supreme Court would not impose a general
duty on businesses to educate the public on the law applicable to their products. However, the
Court will also explain why, after applying the factual circumstances of this case to New Jersey’s
well-settled standards for when a duty to disclose arises, Defendants were under no such duty.
Whether there is a duty to disclose ordinarily presents “a question of law” for a court to
determine “in light of the factual circumstances.” Judge, 815 A.2d at 542. “The question is one
of fairness and policy that ‘involves identifying, weighing, and balancing several factors—the
relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise

6

care, and the public interest in the proposed solution.’” United Jersey Bank v. Kensey, 704 A.2d
38, 43–44 (N.J. Super. App. Div. 1997) (quoting Hopkins v. Fox & Lazo Realtors, 625 A.2d 1110,
1116 (N.J. 1993)). In New Jersey, “[t]here are three general classes of transactions in which a duty
to disclose arises” as a result of a special relationship between the parties:
The first involves fiduciary relationships such as principal and agent
or attorney and client. The second embraces situations in which
either one or each of the parties, in entering the transaction,
expressly reposes a trust and confidence in the other or because of
the circumstances of the case, the nature of their dealings, or their
position towards each other, such a trust and confidence is
necessarily implied. The third includes contracts or transactions
which in their essential nature, are intrinsically fiduciary, and
necessarily call for perfect good faith and full disclosure, without
regard to any particular intention of the parties.
Id. at 44 (cleaned up).
Here, there is no suggestion of an express or implied fiduciary relationship, so the first and
third classes of special relationships do not apply. “Where, as here, there is no presumed fiduciary
relationship, the law imposes a duty to disclose only if a party, ‘in entering the transaction,
expressly reposes a trust and confidence in the other or, because of the circumstances of the case,
the nature of their dealings, or their position towards each other, such a trust and confidence is
necessarily implied.’” Bayda v. Howmet Castings & Servs., Inc., 859 F. App’x 623, 625 (3d Cir.
2021) (quoting Kensey, 704 A.2d at 43–44). In addition, there is no suggestion that Eady expressly
reposed a trust or confidence in Defendants. Accordingly, Defendants had a duty to disclose only
if a trust or confidence is implied by the circumstances of this case, the nature of the parties’
dealings, or the parties’ position towards each other.
The Restatement (Second) of Torts is instructive. See Kensey, 704 A.2d at 45 (explaining
that New Jersey “has adopted that interpretation of the Restatement” (citing Strawn, 657 A.2d at
429)); see also Lithuanian Com. Corp. v. Sara Lee Hosiery, 179 F.R.D. 450, 478 (D.N.J. 1998).

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The Restatement explains that a person has a duty to disclose “facts basic to the transaction, if he
knows that the other is about to enter into it under a mistake as to them, and that the other, because
of the relationship between them, the customs of the trade or other objective circumstances, would
reasonably expect a disclosure of those facts.” Restatement (Second) of Torts § 551(2)(e) (Oct.
2021 update) (hereinafter “Restatement”).

The Restatement acknowledges the difficulty in

determining when those circumstances are present. Id. § 551 cmt. l. But courts have found duties
to exist where “the advantage taken of the plaintiff’s ignorance is so shocking to the ethical sense
of the community, and is so extreme and unfair, as to amount to a form of swindling, in which the
plaintiff is led by appearances into a bargain that is a trap, of whose essence and substance he is
unaware.” Id. In determining whether that scenario is present, New Jersey courts have identified
“[t]he principal factors” as “‘the difference in bargaining power’ between the parties ‘and the
difference in access to information.’” Kensey, 704 A.2d at 48 (quoting Strawn, 657 A.2d at 428).
New Jersey courts have also looked to whether the seller uses its professional position to
knowingly pressure, coax, or encourage the buyer to engage in an unsound or fraudulent
transaction. See id. at 46.
Here, the failure to disclose is not so shocking to the ethical sense of the community or so
extreme and unfair as to amount to a form of swindling. The principal factors New Jersey courts
have looked to are absent from this record. So too is evidence that Defendants knowingly
pressured, coaxed, or encouraged Eady to commit an unsound or fraudulent purchase.
First, there is no evidence to suggest an asymmetry in access to information. What Eady
believes should have been disclosed is public information—namely, that surreptitiously listening
to and recording other people’s conversations without their consent or knowledge is unlawful. It
is not information exclusively or especially in the possession of anyone, let alone Defendants. Nor

8

is it information that is difficult to discover. As Defendants point out, people “are legally on notice
of criminal laws as soon as they are enacted.” (Defs. Reply at 6). 4 And regardless, a reasonable
consumer should know to refrain from what Eady did—not simply because his conduct was
unlawful but because he violated the privacy interests of others.
Second, there is no evidence to suggest that Defendants used their superior bargaining
power to take advantage of Eady or to compel or induce him to engage in an unsound transaction,
let alone compel or induce him to violate federal law. Eady exercised his own agency. Cf. Bosland
v. Warnock Dodge, Inc., 964 A.2d 741, 751 (N.J. 2009) (“Moreover, we see no unfairness in
refusing to find a CFA remedy for a plaintiff whose entire claim was premised on his own decision
to engage in a fraudulent transaction.”). And there were various legal and harmless uses of Evil
Operator that people, including Eady, could perform. For example, two friends, one of whom is a
known and present party to the call, could prank another; or one could refrain from listening to the
resulting conversation altogether. Nothing pressured, coaxed, or encouraged Eady to violate
federal law.
Third, there is no evidence to suggest that Defendants subjectively knew that Eady’s
conduct would violate federal law. Notwithstanding, Eady cites two pieces of evidence to establish
Defendants’ knowledge. (Eady Mov. Br. at 6; Eady Opp. Br. at 8). But after close review of the
evidence, no reasonable juror could find that Defendants knew that Eady’s conduct would violate
federal law.
Eady first cites an undated letter authored by counsel for TapFury. (Eady Mov. Br. at 6).
In the letter, counsel points out a “specific problem” concerning Evil Operator: “if neither party to

Cf. Buddy v. Knapp, 262 A.3d 1227, 1242 (N.J. Super. App. Div. 2021) (declining, in a premises liability
case, “to impose on commercial property owners the obligation to warn business patrons of the obvious danger posed
by [unlawfully] driving over two sets of solid yellow lines to cross two lanes of opposing traffic on a highway with a
fifty-five-mile-per-hour speed limit”).
4

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these calls are aware of TapFury’s presence on the line recording them, any federal or state court
could potentially find a lack of even one party’s consent, and thus liability under any applicable
wiretapping statute. If TapFury’s presence as part of the call were somehow announced, then
TapFury or the user might be able to provide the necessary consent for a one-party jurisdiction,
but that may blunt the effect of the prank.” (D.E. No. 59-2, Ex. 6, at 5). But counsel also
“assume[d]” that federal and state law would (i) recognize “the user”—that is, the Evil Operator
customer—as “a party to [the] telephone call” and (ii) find that the customer gave his or her
“consent to record that call.” (Id. at 1). Under that assumption, counsel concluded that the
“practice of obtaining consent from the user of the Services to record calls should be sufficient to
meet the bar set by the federal wiretapping law.” (Id.). Counsel’s assumption was wrong—as set
forth in the Third Circuit’s holding that Eady was not a party to the calls, because his presence was
not known by the other participants, and thus he could not give consent. See Eady, 648 F. App’x
at 192. But the record does not support Eady’s conclusion that Defendants knew their position
was wrong.
Eady next cites an Internet article dated June 13, 2012, authored by Ruby Saleh, the former
Director of Business Development at TapFury, providing commentary about why Google removed
PrankDial from the Android Market. (Eady Opp. Br. at 8). In the article, she explains that Google
did so, in part, out of concerns for “the ramifications of recording phone conversations without
consent.” (D.E. No. 59-1, Ex. 2, at 7). But Ruby Saleh responded to Google’s view by explaining
that PrankDial complied with state laws that required one party’s consent to record because “[w]e
consider the person initiating the call to be the consenting party.” (Id. at 8). She also noted that
customers were not allowed to use PrankDial to call people in states that required the consent of

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all parties. (Id.). While her subjective belief concerning the customer’s presence as a consenting
party was wrong, Eady has not pointed to any evidence refuting that she actually believed it.
Fourth, while Defendants were aware of the possibility that their products could be used
unlawfully, there is no evidence suggesting that Defendants deliberately ignored or withheld this
potential issue from customers in order to swindle them. For example, Ruby Saleh’s Internet
article candidly presented both sides of the issue. (D.E. No. 59-1, Ex. 2, at 7–8). Moreover,
TapFury’s Terms of Service contained various disclaimers and warnings suggesting that certain
uses of Evil Operator were wrongful and unlawful. (D.E. No. 59-2, Ex. 5, Gov’t Ex. 148A). While
the Terms of Service did not point out the wiretapping issues, the Terms of Service prohibited
customers from using the applications to harass and cautioned customers to use the applications in
compliance with local law. (Id.).
Eady disputes that he agreed to the Terms of Service, arguing that Defendants failed “to
provide reasonable conspicuous notice of the existence of the contract terms.” (Eady Opp. Br. at
5). The crux of his argument is that the webpage on PrankDial.com (where a customer would
initiate a call) did not include a “hyperlink to the terms of service” next to the statement, “By
sending this call, you agree to our terms of service.” (Id. at 4). However, Defendants point out
that “the [phrase] ‘terms of service’ [itself] functioned as a hyperlink.” (Defs. Reply at 3). In
support, Defendants cite the testimony of Todd Saul, a former TapFury engineer, and the
PrankDial webpage itself, which displays the phrase “in a distinctive blue color, clearly indicating
it [wa]s a hyperlink.” (Id. at 3–4 (citing D.E. No. 58-1, Ex. D, Gov’t Ex. 147)). Eady submits no
evidence disputing that the hyperlink to the Terms of Service was conspicuously positioned on the
webpage.

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In addition, before Eady used Evil Operator, Defendants disabled the record feature unless
a customer certified, “I agree to notify the caller they are being recorded.” (D.E. No. 59-1, April
7, 2021 Deposition of Ruby Saleh, at 49:17–18 & Ex. SALEH-A). Citing his own deposition
testimony, Eady disputes there was a certification feature when he used Evil Operator, and he
argues in any event that it did not sufficiently warn a reasonable consumer. (Eady Opp. Br. at 9–
10). But taking his deposition testimony as far it goes, he raises the possibility, which Defendants
concede, that he used an older version of Evil Operator. (D.E. No. 55). Indeed, he has not
submitted any evidence disputing that Defendants implemented the certification in some form
before he used Evil Operator. Thus, the central conclusion remains: There is no evidence upon
which a reasonable juror could rely to find that Defendants deliberately ignored or withheld the
potential for unlawful use from its customers.
Taken together, the record does not reasonably present a situation where Defendants’
failure to disclose that users of Evil Operator may violate federal wiretapping laws is so shocking
to the ethical sense of the community or so extreme and unfair as to amount to a form of swindling.
The principal factors that give rise to a duty to disclose are absent from this record, as is evidence
that Defendants pressured or coaxed Eady to commit an unsound or fraudulent purchase.
Accordingly, there is no special relationship that would impose a duty to disclose.
(ii)

Affirmative Act

As noted, it is unclear whether Eady has brought a claim under the CFA for an affirmative
act—that is, a false or misleading representation. Eady’s moving brief focuses on Defendants’
failure to disclose that his use of Evil Operator would violate 18 U.S.C. § 2511(1)(a), and his
opposition brief argues Defendants made misleading statements but couches his legal theory in a
failure-to-disclose argument. (Eady Opp. Br. at 5–7). While a party is under a duty to disclose

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information if “disclosure is necessary to make a previous statement true” or to make a previously
true statement not misleading, Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1185 (3d Cir.
1993) (citing Berman v. Gurwicz, 458 A.2d 1311, 1313 (N.J. Super. Ch. Div. 1981)), a claim for
an affirmative act, which may involve a seller making a true but misleading statement, is an easier
claim to prove under the CFA. Indeed, while a claim of knowing concealment requires a showing
of knowledge and intent to deceive, Judge, 815 A.2d at 541–42, neither element is necessary for a
claim for an affirmative act, see Dugan, 171 A.3d at 636; Monogram, 914 A.2d at 853. 5 However,
even if the Court construes Eady to bring a claim for an affirmative act, which it appears he did
not, Eady cannot survive summary judgment. Out of an abundance of caution, the Court will
analyze the standards for an affirmative act.
“[A] literally true statement can still have the capacity to mislead the average consumer.”
Suarez v. E. Int’l Coll., 50 A.3d 75, 88 (N.J. Super. App. Div. 2012); see also Restatement § 529
(“A representation stating the truth so far as it goes but which the maker knows or believes to be
materially misleading because of his failure to state additional or qualifying matter is a fraudulent
misrepresentation.”). Accordingly, a true statement or advertisement is actionable if it has “the
capacity to mislead the average consumer”—in other words, “if the overall impression it creates
is misleading and deceptive to an ordinary reader.” Union Ink Co. v. AT&T Corp., 801 A.2d 361,
379 (N.J. Super. App. Div. 2002) (cleaned up). However, mere puffery is not actionable. See
Rodio v. Smith, 587 A.2d 621, 624 (N.J. 1991). “Advertising that amounts to ‘mere’ puffery is not
actionable because no reasonable consumer relies on puffery. The distinguishing characteristics
of puffery are vague, highly subjective claims as opposed to specific, detailed factual assertions.”

Accordingly, if Eady brought his claim as only one for knowing concealment, his claim would fail for failure
to submit proof of knowledge. See Judge, 815 A.2d at 541–42; Restatement § 551(2)(b) (explaining there is a duty to
disclose “matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the
facts from being misleading” (emphasis added)).

5

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Lieberson v. Johnson & Johnson Consumer Companies, Inc., 865 F. Supp. 2d 529, 540 (D.N.J.
2011) (quoting In re Toshiba Am. HD DVD Mktg. & Sales Pracs. Litig., No. 08-0939, 2009 WL
2940081 (D.N.J. Sept. 11, 2009)).
Eady argues that Defendants made false or misleading representations by “touting the
PrankDial website as being a top-preforming application with 1 million users and that it was ranked
in the top 100 of applications and one of the top 25 applications in the entertainment category”;
“assert[ing] its website offerings are fun and harmless”; and “proclaim[ing] use of the application
comports with New Jersey and federal laws.” (Eady Opp. Br. at 6). The Court will consider each
set of statements identified by Eady.
Popularity of PrankDial.com.

Defendants’ statements concerning the popularity of

PrankDial.com are not misleading. While they are not puffery—because they are specific and
measurable statements of fact—they do not have the capacity to mislead a reasonable consumer
into believing that Eady’s use of Evil Operator was lawful.
Fun and Harmless Nature of PrankDial. Defendants argue that their statements “regarding
the harmless and fun nature of its product, considered in the light most favorable to [Eady], rise
only to the nature of puffery.” (Defs. Opp. Br. at 18). The Court agrees. Defendants’ statements
are vague and subjective, and they are not of a kind that a reasonable consumer would rely on.
See, e.g., Rodio, 587 A.2d at 624 (“You’re in good hands with Allstate”); New Jersey Citizen
Action v. Schering-Plough Corp., 842 A.2d 174, 177 (N.J. Super. App. Div. 2003) (“you . . . can
lead a normal nearly symptom-free life again”). Either way, they do not reasonably lead a
consumer to believe that Eady’s use of Evil Operator was lawful. Indeed, a reasonable consumer
would not understand the statement “this product is fun and harmless” to mean the consumer can
use the product in any manner and under and set of circumstances.

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Legality of PrankDial. The record indicates that Defendants’ made two statements to their
customers concerning the legality of PrankDial and Evil Operator.
The first statement appears on the PrankDial webpage where a customer initiated a call.
The statement consists of the following certification that was positioned above a button titled
“Send Prank”: “I agree to record this call with the knowledge that the person I am calling is not
currently located in any of the following states: CA, PA, FL, IL, MI, WA, MD, MA, CT, NV, NH
or MT.” (D.E. No. 60-3, Ex. 2, Gov’t Ex. 147). The implication from this statement is that a
customer may record a call in the states not listed—and may do so lawfully.
However, this statement is not misleading for several reasons. First, it does not reasonably
imply that a customer may record phone calls in the unlisted states in all instances. Let alone does
it imply that a customer may do what Eady did—that is, violate 18 U.S.C. § 2511(1)(a). The
webpage says nothing about why a customer cannot record calls in those states. Nor does it say
anything about why a customer may record calls in the unlisted states. Second, and as noted above,
TapFury’s Terms of Service contained various disclaimers and warnings suggesting that certain
uses of Evil Operator were unlawful. (D.E. No. 59-2, Ex. 5, Gov’t Ex. 148A). While the Terms
of Service did not point out the wiretapping issues, the Terms of Service dispelled the notion
(apparently held by Eady) that any and all use of Evil Operator would be lawful. See, e.g., Hassler
v. Sovereign Bank, 644 F. Supp. 2d 509, 515 (D.N.J. 2009) (collecting cases for proposition that,
“where a CFA claim is based upon an allegedly incomplete or misleading disclosure, and where
the parties’ agreement contains the very information that Plaintiffs allege was misrepresented,
suppressed, or concealed, dismissal for failure to state a claim is appropriate” (cleaned up)), aff’d,
374 F. App’x 341, 344 (3d Cir. 2010) (“Whether a practice itself is unfair is a classic jury question.
However, where the claim is based on written statements, the court must make the legal

15

determination of whether a practice can be said to be unfair in light of the written statements. The
terms of the Account Agreement here clearly explained the actions that Sovereign eventually
undertook. Therefore, there is no jury question, but only the legal question of whether those terms
and actions violate the NJCFA in light of having been explained in the Account Agreement.”).
And third, the statement is not misleading because Eady, like all others, is “presumptively charged
with knowledge of the law” and is therefore presumed to know how far the statement goes. See
Cole, 2017 WL 2805499, at *4 (citations omitted).
The second statement appears in the Internet article authored by Ruby Saleh, which was
described above. Ruby Saleh explains to readers that PrankDial.com complied with one-party
consent states because “[w]e consider the person initiating the call to be the consenting party.”
(Id. at 8). Ruby Saleh appears to offer an erroneous legal opinion—that is, that a customer can
give the consent necessary to avoid violating § 2511(1)(a). While there is no evidence suggesting
she did not actually believe that to be true, a reasonable jury could find that her statement had the
capacity to cause an average consumer to incorrectly believe that Eady’s conduct would not violate
§ 2511(1)(a).
However, the Court agrees with Defendants that there is no “causal relationship between
Defendants’ conduct and [Eady’s] loss.” (Defs. Mov. Br. at 16). His “loss was caused solely by
[his own] conduct.” (Id.).
“[A] private plaintiff must show that he or she suffered an ‘ascertainable loss * * * as a
result of’ the unlawful conduct.” Meshinsky v. Nichols Yacht Sales, Inc., 541 A.2d 1063, 1067
(N.J. 1988) (first citing Daaleman v. Elizabethtown Gas Co., 390 A.2d 566 (N.J. 1978); and then
citing Ramanadham v. New Jersey Mfrs. Ins. Co., 455 A.2d 1134 (N.J. Super. App. Div. 1982)).
Thus, a “plaintiff must establish ‘the extent of any ascertainable loss, particularly proximate to a

16

misrepresentation or unlawful act of the defendant condemned by the [Act].’” Id. (quoting
Ramanadham, 455 A.2d at 1136). While a plaintiff need not show reliance, the plaintiff must
“demonstrate a causal connection between the unlawful practice and ascertainable loss.” Belmont
Condo. Ass’n, Inc. v. Geibel, 74 A.3d 10, 24 (N.J. Super. App. Div. 2013). Similarly, a plaintiff
must show the misrepresentation was made “to induce the buyer to make the purchase.” Cole v.
Laughrey Funeral Home, 869 A.2d 457, 462 (N.J. Super. App. Div. 2005).
Here, Eady cannot prove causation, or that the misleading statement was made to induce
him to purchase tokens to use Evil Operator, because Ruby Saleh published the article on June 13,
2012—months after Eady purchased tokens to use Evil Operator, on August 25, 2011, and March
3, 2012. (D.E. No. 59-1, Ex. A, Gov’t Ex. 150A). In addition, the record shows that Eady used
Evil Operator in violation of § 2511(1)(a) before Ruby Saleh published the article: He confessed
his conduct to a friend in spring 2012 (Defs. SUMF ¶ 10); in his deposition, he admitted he used
Evil Operator in May 2012 to record a conversation of one of his targets (D.E. No. 58-3, April 9,
2021 Deposition of Kirk Eady, at 35:9–36:15); and in his opposition brief, he concedes he used
“the Evil Operator product on several occasions from March 1, 2012 through July 30, 2012” (Eady
Opp. Br. at 7). Although July 30 falls after June 13, the fact remains that Eady used Evil Operator
in violation of federal law and admitted to doing so before Ruby Saleh published the article.
Finally, in his deposition, Eady never mentions Ruby Saleh’s article when explaining why he
thought PrankDial and Evil Operator were misleading. Instead, he testified that he used Evil
Operator in an illegal manner as a result of Defendants’ representations concerning its popularity
and their prohibition on recording calls made to people in certain listed states. (D.E. No. 58-3,
April 9, 2021 Deposition of Kirk Eady, at 26:13–21, 31:16–21 & 49:22–50:16).

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Failing to show causation or that the statements were made to induce the transaction, Eady
cannot maintain a claim under the CFA for Ruby Saleh’s misleading statement. See Cole, 869
A.2d at 462–63 (holding that the alleged misrepresentations were not “made to induce the buyer
to make the purchase” because they were “done after the contract for funeral services was entered
into”); cf. Dist. 1199P Health & Welfare Plan v. Janssen, L.P., 784 F. Supp. 2d 508, 531 (D.N.J.
2011) (dismissing claim for failure to plead causation—“that they, or any of their prescribing
doctors, received a misrepresentation of fact from Defendants and relied on that
misrepresentation”); Ramirez v. STi Prepaid LLC, 644 F.Supp.2d 496, 501 (D.N.J. 2009) (finding
adequate allegations that plaintiffs would not have purchased the items at issue if truth was
disclosed). Accordingly, summary judgment in favor of Defendants is proper.
B.

Remaining Claims

The other nine counts in the SAC are as follows: breach of contract, violation of the
covenant of good faith and fair dealing, rescission of contract that was the product of fraud, breach
of express warranty, breach of implied warranty, pierce of the corporate veil, negligent
misrepresentation, fictious parties, and punitive damages. (SAC ¶¶ 52–62 & 79–108). Defendants
moved for summary judgment on all counts. Eady only moved for summary judgment on his claim
under the CFA, and he does not defend his other counts in opposing Defendants’ motion for
summary judgment. Though the Court could find Eady abandoned those claims based on his
failure to defend them, 6 the Court briefly explains why summary judgment is proper on each.

6
See, e.g., Prioli v. Cty. of Ocean, No. 18-0256, 2021 WL 4473159, at *16 (D.N.J. Sept. 30, 2021); Lutz
Surgical Partners PLLC v. Aetna, Inc., No. 15-02595, 2021 WL 2549343, at *18 (D.N.J. June 21, 2021); Bernard v.
Webb-McRae, No. 17-7030, 2020 WL 1329934, at *2 (D.N.J. Mar. 23, 2020); Callen Constr., LLC v. Matsuk, No. 156056, 2018 WL 672639, at *5 (D.N.J. Feb. 2, 2018); Skirpan v. Pinnacle Health Hosps., No. 07-1730, 2010 WL
3632536, at *6 (M.D. Pa. Apr. 21, 2010).

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Breach of contract. For a breach of contract claim, a plaintiff must prove four elements:
(i) that the parties entered into a contract; (ii) that the plaintiff did as the contract required of him;
(iii) that the defendant breached the contract; and (iv) that the defendant’s breach caused a loss to
the plaintiff. See Goldfarb v. Solimine, 245 A.3d 570, 577 (2021). Eady has not pointed to any
provision of the Terms of Service that Defendants failed to follow, and the Court does not perceive
any on this record. Because Plaintiff failed to submit evidence concerning the third element,
summary judgment for Defendants is proper.
Covenant of good faith and fair dealing. In New Jersey, “every contract contains an
implied covenant of good faith and fair dealing.” Graddy v. Deutsche Bank, No. 11-3038, 2013
WL 1222655, at *4 (D.N.J. Mar. 25, 2013). To succeed on a claim for breach of the implied
covenant, a plaintiff must prove (i) “a contract exists between the plaintiff and the defendant”; (ii)
“the plaintiff performed under the terms of the contract unless excused”; (iii) “the defendant
engaged in conduct, apart from its contractual obligations, without good faith and for the purpose
of depriving the plaintiff of the rights and benefits under the contract”; and (iv) “the defendant’s
conduct caused the plaintiff to suffer injury, damage, loss, or harm.” Wong v. Wells Fargo Bank
N.A., No. 14-5204, 2015 WL 6164036, at *4 (D.N.J. Oct. 20, 2015). Eady has not pointed to
anything Defendants did to deprive Eady of his rights and benefits to use Evil Operator. Because
he failed to submit evidence concerning the third element, summary judgment is proper.
Rescission and Negligent Misrepresentation. For the same reasons Eady’s claim under the
CFA cannot survive summary judgment, his claims of negligent misrepresentation and rescission
of contract that was the product of fraud cannot survive summary judgment. Indeed, except for
the scienter element, those claims share elements. See Columbus LTACH Mgmt., LLC v. Quantum
LTACH Holdings, LLC, No. 16-6510, 2018 WL 2455922, at *5 (D.N.J. May 31, 2018) (“The

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elements of negligent misrepresentation are essentially the same as those of common law fraud
except negligent misrepresentation does not require scienter.” (quoting New York Pipeline Mech.
Contractors, LLC v. Sabema Plumbing & Heating Co., No. 10-0148, 2012 WL 209349, at *4
(D.N.J. Jan. 24, 2012)); Jewish Ctr. of Sussex Cty. v. Whale, 432 A.2d 521, 524 (N.J. 1981)
(explaining that, except for scienter, the elements of equitable fraud are the same as common law
fraud); accord Nissan Motor Acceptance Corp. v. Infiniti of Englewood, LLC, No. 18-17228, 2020
WL 7061085, at *6 (D.N.J. July 14, 2020). In addition, “[r]escission is an equitable remedy that
is only exercised when there is no adequate remedy at law.” Osio, 2006 WL 2129460, at *18. So
even if Eady had a claim for fraud, he would not have a claim for rescission because the CFA
would entitle him to damages.
Breach of express and implied warranty. To make a case for breach of an express warranty,
the plaintiff must, at minimum, show an “affirmation of fact or promise made by the seller to the
buyer which relates to the goods and becomes part of the basis of the bargain creates an express
warranty that the goods shall conform to the affirmation or promise.” Ford Motor Credit Co., LLC
v. Mendola, 48 A.3d 366, 375 (N.J. Super. App. Div. 2012) (quoting N.J.S.A. § 12A:2-313(1)(a)).
For a claim of breach of an implied warranty, New Jersey law provides, “[w]here the seller at the
time of contracting has reason to know any particular purpose for which the goods are required
and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods,
there is . . . an implied warranty that the goods shall be fit for such purpose.” Kuzian v. Electrolux
Home Prod., Inc., 937 F. Supp. 2d 599, 612 (D.N.J. 2013) (quoting N.J.S.A. § 12A:2-314).
Moreover, “[i]n order to establish a breach of either warranty, plaintiffs ‘must show that the
equipment they purchased from defendant was defective.’” Id. (quoting Crozier v. Johnson &
Johnson Consumer Companies, Inc., 901 F. Supp. 2d 494, 509 (D.N.J. 2012)). “However,

20

‘establishing a breach of the implied warranties of merchantability and fitness for a particular
purpose requires a showing regarding the product’s functionality, not the advertisements that
allegedly induced a customer to purchase it.’” Id. at 612–13 (quoting Crozier, 901 F.Supp.2d at
509).
Eady has not shown, and the Court does not perceive on this record, that Defendants made
an affirmation of fact or promise relating to Evil Operator that formed the basis of the parties’
bargain. Nor is there any basis in the record to find there was an implied warranty that the goods
were fit for a particular purpose. Nor is there any indication that PrankDial or Evil Operator were
defective. Finally, the Terms of Service for PrankDial disclaim the following: “The Company
makes no warranties, express or implied, with regard to PrankDial, including but not limited to
warranties of merchantability or fitness for a particular purpose.” (D.E. No. 59-2, Ex. 5, Gov’t Ex.
148B). Accordingly, summary judgment is proper on Eady’s warranty claims.
Pierce of the corporate veil, fictious parties, and punitive damages. Eady’s counts titled
“pierce the corporate veil,” “fictious parties,” and “punitive damages” are unavailing because he
does not survive summary judgment on any of his independent claims. Moreover, as Defendants
point out, he did not identify any fictious parties subject to his claims. (Defs. Mov. Br. at 19). 7
IV.

CONCLUSION
For the reasons set forth above, the Court DENIES Plaintiff’s motion, GRANTS

Defendants’ motion, and enters judgment in Defendants’ favor.
Date: April 1, 2022

Hon. Esther Salas, U.S.D.J.

In light of the Court’s holding, it is unnecessary to address Defendants’ argument that Eady is collaterally
estopped from bringing a claim as a result of certain rulings and the judgment in his criminal case. (Defs. Mov. Br.
at 24–27).

7

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