SIEGEL v. CABLEVISION SYSTEMS CORPORATION
Filing
10
MEMORANDUM AND ORDER - For the foregoing reasons, Cablevision's motion to dismiss the CAC is GRANTED IN PART AND DENIED IN PART. Plaintiffs' breach of contract claim survives and the rest of their claims are dismissed. Plaintiffs may file a second consolidated amended complaint consistent with this Memorandum & Order within twenty-one (21) days. Further, and pursuant to the Court's February 1, 2011 Memorandum & Order consolidating the Cablevision cases (Docket Entry 25), a relat ed case, Siegel v. Cablevision Systems Corp., No. 11-CV-0394 (E.D.N.Y.), shall be consolidated with this action (see Docket Entry 25 at 3 n.1). The Clerk of the Court is respectfully directed to docket this order on the Consolidated Docket and on Docket No. 11-CV-0394. So Ordered by Judge Joanna Seybert on 3/28/2012. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
In re CABLEVISION CONSUMER LITIGATION
MEMORANDUM & ORDER
10-CV-4992(JS)(AKT)
--------------------------------------X
APPEARANCES
For Plaintiffs:
Joseph Gentile, Esq.
Ronen Sarraf, Esq.
Sarraf Gentile LLP
One Penn Plaza, Suite 2424
New York, NY 10119
Justin M. Klein, Esq.
Marks & Klein LLP
63 Riverside Avenue
Red Bank, NJ 07701
Lee S. Shalov, Esq.
Ralph M. Stone, Esq.
Shalov Stone Bonner & Rocco LLP
260 Madison Avenue, 17th Floor
New York, NY 10016
Todd J. Krouner, Esq.
Scott Jaller Koplik, Esq.
Law Offices of Todd J. Krouner
93 North Greeley Avenue
Chappaqua, NY 10514
Carol S. Shahmoon, Esq.
Gregory E. Keller, Esq.
Chitwood Harley Harnes LLP
1350 Broadway, Suite 908
New York, NY 10018
Michael C. Rakower, Esq.
Law Office of Michael C. Rakower, P.C.
747 Third Avenue, 32nd Floor
New York, NY 10017
Richard J. Schager, Jr., Esq.
Stamell & Schager, LLP
One Liberty Plaza, 35th Floor
New York, NY 10006
For Defendants:
Thomas H. Golden, Esq.
Wilkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019
SEYBERT, District Judge:
Plaintiffs Sean Ahearn, Eric Bohm, John Brett, Angelo
Brucchieri, William G. Canfield, Ralph Dudley, Arthur Finkel,
Salvatore A. Gandolfo, Tina Green, Andrew Koplik, David Menoni,
Theodore Pearlman, Vincent Pezzuti, Dorothy Rabsey, Martin Jay
Siegel,
Stanley
J.
Somer,
and
Marc
Tell
(collectively,
“Plaintiffs”), on behalf of themselves and all others similarly
situated (collectively, the “Class”) sued Defendants Cablevision
Systems
Corporation
and
CSC
Holdings,
LLC
(together,
“Defendants” or “Cablevision”) in a case arising out of a twoweek period in 2010 during which Cablevision subscribers were
not able to watch certain programming.
Pending before the Court
is Cablevision’s motion to dismiss (Docket Entry 34).
For the
following reasons, this motion is GRANTED IN PART AND DENIED IN
PART.
The
Court
also
makes
a
consolidation
ruling
at
the
conclusion of this Memorandum & Order.
BACKGROUND
The
following
discussion
is
drawn
from
Plaintiffs’
allegations, which are assumed to be true for the purposes of
this
motion,
and
Consolidated
from
Amended
certain
Complaint
documents
(the
inherent
“CAC”).
in
See,
the
e.g.,
Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479, 481 (2d Cir.
2011).
Cablevision
provides
telecommunications
and
cable
television services to more than five million households in the
New York and Philadelphia broadcasting area.
(CAC ¶ 16.)
In
certain locations, it is the only cable television provider.
(Id.)
During the relevant times, Plaintiffs, who are divided
into
New
York,
Cablevision
promoted
Connecticut,
customers.
that
it
and
New
Jersey
Cablevision
carried
certain
had
subclasses,
advertised
programming
and
were
and/or
networks,
including WNYW (“Fox 5”), WWOR (“My9 Channel”), and the Fox
Business Network (collectively, the “Fox Channels”).
On October
15, 2010, however, Cablevision’s agreement with News Corp., the
Fox
Channels’
rejected
proposals
parent,
numerous
offering
expired.
proposals
the
same
for
(Id.
¶
21.)
Cablevision
a
new
agreement,
including
terms
and
conditions
as
content providers in the New York broadcasting area.
other
(Id. ¶
23.)
Two weeks later, on the eve of a National Football
League game between the New York Jets and the Green Bay Packers,
3
Cablevision and News Corp. arrived at a new agreement and access
to the Fox Channels was restored to Cablevision’s subscribers.
(Id. ¶ 29.)
In the interim, Cablevision’s customers could not
watch
programming,
Fox’s
Series.
(See
id.
¶
including
31.)
part
of
Cablevision’s
the
Terms
2010
of
World
Service
recognize an obligation “to give each customer a credit for each
‘known program or service interruption in excess of 24 hours,’”
(id. ¶ 23 (quoting Cablevision’s Agreement for iO TV)), but
aside from offering a ten-dollar credit to customers who ordered
World Series coverage on MLB.com or MLB.tv (id. ¶ 31), it has
not
offered
any
refund
or
credit
to
its
customers
who
were
without the Fox Channels for two weeks (id. ¶ 32).
Plaintiffs’ case relies in part on the above-mentioned
Terms of Service, which provide in relevant part as follows.
Paragraph 4 states:
Disruption of Service.
In no event shall
Cablevision be liable for any failure or
interruption of program transmissions or
service resulting in part or entirely from
circumstances
beyond
Cablevision’s
reasonable control. Subject to applicable
law, credit will be given for qualifying
outages. In any event, if there is a known
program or service interruption in excess of
24 consecutive hours (or in excess of such
lesser time period pursuant to state law),
Cablevision, upon prompt notification of
such
failure
or
interruption
from
Subscriber, will either provide Subscriber
with a pro-rata credit relating to such
4
failure
or
interruption
or,
at
its
discretion, in lieu of the credit provide
alternative programming during any program
interruption.
Cablevision shall not be
liable for any incidental or consequential
damages.
(Def. Ex. B, Terms of Service (“TOS”) ¶ 4.)1
states:
“Programming:
program
packages,
number
All
of
programming,
channels,
Paragraph 17
program
channel
services,
allocations,
broadcast channels, interactive services, e-mail, data offerings
and other Services are subject to change in accordance with
applicable law.”
(Id. ¶ 17.)
DISCUSSION
Plaintiffs’ Complaint asserts the following causes of
action: (1) breach of contract; (2) breach of the covenant of
good faith and fair dealing; (3) unjust enrichment; (4) consumer
fraud under New York law; (5) consumer fraud under Connecticut
law; and (6) consumer fraud under New Jersey law.
Plaintiffs
also seek an injunction preventing Cablevision from “ignoring
its
contractual
deadlines
with
content
providers,”
and
compelling “it to enter into a dispute resolution mechanism that
1
Cablevision suggests that the word “outage” in Paragraph 4
should have the same meaning as its definition under New York
law regulating cable television providers, i.e., the loss of all
channels in a given service tier. (Def. Br. 4-5.) “Outage” is
not defined in the Terms of Service, however, either explicitly
or by reference to state regulations.
(See generally Def. Ex.
B.)
5
insures resolution of any such disputes, in the absence of a
consensual agreement, so that its customers will not be deprived
of programming content.”
the
applicable
legal
(CAC ¶ 97.)
standard
and
The Court first recites
then
considers
Plaintiffs’
claims in turn.
I. Legal Standard
Defendants move to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6).
plaintiff
must
plead
To survive a Rule 12(b)(6) motion, a
sufficient
factual
allegations
in
the
complaint to “state a claim [for] relief that is plausible on
its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,
127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929, 949 (2007).
The
complaint does not need “detailed factual allegations,” but it
demands
“more
than
labels
and
conclusions,
and
a
formulaic
recitation of the elements of a cause of action will not do.”
Id. at 555.
In addition, the facts pleaded in the complaint
“must be enough to raise a right to relief above the speculative
level.”
Id.
Determining whether a plaintiff has met his burden
is “a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Mills, 572 F.3d 66, 72 (2d Cir. 2009).
Harris v.
However, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
6
Ashcroft v. Iqbal, 556
U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
II. Application
For
the
following
reasons,
Cablevision’s
motion
is
granted in part and denied in part.
A. Breach of Contract
Cablevision argues that Plaintiffs’ breach of contract
claim fails as a matter of law because the Terms of Service (1)
did not obligate Cablevision to carry particular programming;
(2)
did
not
impose
liability
for
the
temporary
removal
of
discrete channels; and (3) excused interruptions stemming from
circumstances beyond Cablevision’s reasonable control.
The
Cablevision
first
argument
incorrectly
is
actually
suggests
that
two-fold.
Plaintiffs
First,
have
not
identified the contract provision that Cablevision supposedly
breached.
(See
Cablevision
Def.
breached
Br.
9-10.)
Paragraph
Plaintiffs
4,
which
allege
provides
that
that
Cablevision will offer a refund or credit or provide alternative
programming in the event of a service interruption longer than
24
hours.
Paragraph
(CAC
17,
¶
which
23.)
Second,
provides
Cablevision
that
argues
Cablevision’s
that
program
offerings are subject to change in accordance with applicable
law, relieves it of providing any particular content because
federal
law
prohibits
retransmitting
7
a
channel
without
the
consent of the programmer.
(Def. Br. 10.)
Paragraph 17 does
not foreclose Plaintiffs’ claim because it can be fairly read as
relieving Cablevision of providing particular content only in
the event of a change in applicable law--not, as Cablevision
would have it, any time for any reason.
not
obligated
to
(See id. (arguing that
Cablevision
was
provide
any
particular
channels).)
If Cablevision’s reading of the Terms of Service is
correct, then it has not really promised to provide anything and
the contract is arguably illusory.
See Credit Suisse First
Boston
A.D.3d
v.
Utrecht-Am.
Fin.
Co.,
80
485,
488-89,
915
N.Y.S.2d 531, 535 (1st Dep’t 2011) (noting that interpretations
that render a contract illusory are disfavored).
point,
render
Cablevision’s
Paragraph
4
reading
of
Paragraph
meaningless.
Taken
17
to
More to the
would
arguably
its
logical
conclusion, Cablevision’s position that it was not required to
provide particular channels would mean that it was not obligated
to provide any channels and would render useless its promise to
refund
customers
for
service
outages.
It
is
settled
that
contracts should be interpreted in a way that avoids rendering
any of their provisions superfluous.
See, e.g., Rothenberg v.
Lincoln Farm Camp, Inc., 755 F.2d 1017, 1019 (2d Cir. 1985)
(“[A]n
interpretation
that
gives
a
reasonable
and
effective
meaning to all the terms of a contract is generally preferred to
8
one that leaves a part unreasonable or of no effect.”).2
Cablevision’s second argument, related to its first,
is that Paragraph 4 does not obligate Cablevision to compensate
customers for the suspension of a particular channel because
this
(Def.
interpretation
Br.
11.)
would
render
Paragraph
17
meaningless.
as
explained
already,
the
converse
But
is
equally true: reading Paragraph 17 in the way Cablevision urges
would render Paragraph 4 meaningless.
at
1019.
And
the
two
provisions
See Rothenberg, 755 F.2d
may
be
reconciled
by
the
reading of Paragraph 17 that the Court suggested above.3
Cablevision’s
liability
is
excused
third
by
the
argument
“beyond
control” clause in Paragraph 4.
is
that
any
Cablevision’s
(Def. Br. 12.)
contract
reasonable
“Force majeure
2
Tepper v. Cablevision, No. 11132/02 (N.Y. Sup. Ct. Mar. 11,
2005) aff’d, 797 N.Y.S.2d 131 (2d Dep’t 2005), which held that
contract language similar to Paragraph 17 precluded claims based
on Cablevision’s failure to televise the full schedule of New
York Yankees games, is distinguishable because the Tepper court
apparently did not consider contract language similar to
Paragraph 4 of the Terms of Service.
3
To be sure, Paragraphs 4 and 17 may also be reconciled in the
way Cablevision suggests: The Terms of Service did not require
Cablevision to provide any particular channels but did require
it to refund customers for “outages” as used in state cable
television regulations.
(See supra note 1.)
At this stage,
though, Plaintiffs have stated a plausible entitlement for
relief. See U.S. Licensing Assocs., Inc. v. Rob Nelson Co., No.
11-CV-4517, 2011 WL 5910216, at *4 (S.D.N.Y. Nov. 28, 2011)
(“Because this reading is plausible, it would be inappropriate
to resolve the ambiguity in the contract at the motion to
dismiss stage.”).
9
clauses are to be interpreted in accord with their function,
which
is
to
relieve
a
party
of
liability
when
the
parties'
expectations are frustrated due to an event that is ‘an extreme
and unforeseeable occurrence,’ that ‘was beyond [the party’s]
control and without its fault or negligence.’”
Team Mktg. USA
Corp. v. Power Pact, LLC, __ N.Y.S.2d __, 2007 WL 1628420, at *3
(3d Dep’t June 7, 2007) (quoting 30 Lord, Williston on Contracts
§
77:31
4th
ed.).
They
are
construed
narrowly
and
will
generally only excuse a party’s nonperformance if the event that
caused the party’s nonperformance is specifically identified.
See Reade v. Stoneybrook Realty, LLC, 63 A.D.3d 433, 434, 882
N.Y.S.2d 8, 9 (1st Dep’t 2009).
Plaintiffs argue that force
majeure clauses typically operate to excuse a party’s future
performance that has been rendered impossible by an unforeseen
event.
(See Pl. Opp. 12-13.)
Plaintiffs’
relieve
The Court is largely receptive to
argument
that
a
force
Cablevision
from
having
majeure
to
clause
refund
a
would
not
portion
of
Plaintiffs’ pre-paid subscription fees pursuant to Paragraph 4.
See Toledano & Pinto (Am.) v. Anasae Corp., 83 N.Y.S.2d 612, 614
(Sup.
Ct.
N.Y.
Cnty.
1948).
But
even
if
the
clause
could
operate that way, it would not apply in this case because it
does not specifically address the circumstances that caused the
service
interruption--i.e.,
Cablevision
10
and
News
Corp.’s
inability to reach a timely contract renewal.
See Kel Kim Corp.
v. Cent. Mkts., Inc., 70 N.Y.2d 900, 902, 524 N.Y.S.2d 384, 519
N.E.2d 295, (1987)
(“Ordinarily, only if the force majeure
clause specifically includes the event that actually prevents a
party's performance will that party be excused.”).
Moreover,
force majeure clauses are aimed narrowly at events that neither
party could foresee or guard against in the agreement.
See id.
A breakdown in the Cablevision-News Corp. negotiations was not
unforeseeable, and, under Plaintiffs’ reading of the Terms of
Service, the parties allocated the associated risk: Plaintiffs
paid their subscription fees in advance and Cablevision promised
a refund in the event of a disruption.
Accordingly, the force
majeure clause in this case does not preclude Plaintiffs’ breach
of contract claim.
B. Breach of the Covenant of Good Faith and Fair Dealing
Plaintiffs’ next claim is that Defendants breached the
covenant of good faith and fair dealing.
The implied covenant
of good faith and fair dealing “embraces a pledge that neither
party shall do anything which will have the effect of destroying
or injuring the right of the other party to receive the fruits
of the contract.”
511 W. 232nd Owners Corp. v. Jennifer Realty
Co., 98 N.Y.2d 144, 153, 746 N.Y.S.2d 131, 773 N.E.2d 496 (2002)
(internal quotation marks omitted).
11
“While the duties of good
faith and fair dealing do not imply obligations inconsistent
with
other
terms
of
the
contractual
relationship,
they
do
encompass any promises which a reasonable person in the position
of
the
promisee
included.”
would
Id.
omitted).
be
justified
(internal
in
quotation
understanding
marks
and
were
citations
Plaintiffs’ implied covenant theory can be broken
into three subparts.
They allege that Cablevision (1) failed to
offer the channels it advertised and then failed to provide a
rebate or credit (CAC ¶ 55(a), (c)); (2) concealed that it “knew
there was a distinct likelihood that it could not offer the
channels
negotiate
it
advertised”
with
News
(id.
Corp.
¶
in
55(b));
good
and
faith
(3)
failed
“despite
to
multiple
proposals being received from those third-parties to resolve the
underlying dispute” (id. ¶ 55(d)).
Plaintiffs’ claim must be dismissed in its entirety.
The first subpart is dismissed as duplicative of Plaintiffs’
breach of contract claim.
USA,
Nat’l
Ass'n,
No.
E.g., Toledo Fund, LLC v. HSBC Bank
11-CV-7686,
2012
WL
364045,
at
*5
(S.D.N.Y. Feb. 3, 2012).
The second subpart fails to state a
claim
have
because
Plaintiffs
not
alleged
how
Cablevision’s
allegedly concealing the upcoming expiration of the News Corp.
contract deprived Plaintiffs of the fruits of their contract
with Cablevision.
See 511 W. 232nd Owners Corp., 98 N.Y.2d at
12
153.
The
amounts
third
to
Cablevision
subpart
nothing
failed
fails
more
to
than
negotiate
to
state
a
conclusory
in
good
claim
because
allegations
faith.
it
that
Plaintiffs
allege that Cablevision rejected “multiple proposals” but allege
neither Cablevision’s nor News Corp.’s negotiating positions.
This is insufficient to state a plausible claim.
Nissan Motor
Acceptance Corp. v. Dealmaker Nissan, LLC, No. 09-CV-0196, 2011
WL 94169, at *5 (N.D.N.Y. Jan. 11, 2011); see also Ferguson v.
Lion Holding, Inc., 478 F. Supp. 2d 455, 469 (S.D.N.Y. 2007)
(“To prove a violation of the implied covenant of good faith and
fair dealing, conclusory allegations of a party’s failure to act
in
good
faith
alone
are
insufficient;
specific
factual
allegations of a party's bad faith acts are required.”).
C. Unjust Enrichment
Plaintiffs’ unjust enrichment claim is dismissed as
duplicative
of
their
breach
of
contract
claim.
See
Clark-
Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 388,
516 N.E.2d 190, 193, 521 N.Y.S.2d 653, 656 (1987).
D. Consumer Protection Claims
Plaintiffs also assert claims under the state consumer
protection statutes of New York, Connecticut, and New Jersey.
1. New York State Law Claims
Plaintiffs’ New York claims rest on General Business
13
Law Sections 349 and 350.
At the outset, the parties disagree
whether Plaintiffs’ consumer protection claims are subject to
Federal
Rule
standard.
of
Civil
Procedure
9’s
heightened
pleading
Plaintiffs argue that because these claims do not
sound in fraud, the heightened standard is inappropriate.
The
Court agrees that, at least where the alleged conduct does not
involve an affirmative misrepresentation, the normal, noticepleading standard of Federal Rule 8 governs Plaintiffs’ Section
349 claims.
See Pelman ex rel. Pelman v. McDonald’s Corp., 396
F.3d 508, 511 (2d Cir. 2005) (“[B]ecause § 349 extends well
beyond common-law fraud to cover a broad range of deceptive
practices, and because a private action under § 349 does not
require proof of the same essential elements (such as reliance)
as common-law fraud, an action under § 349 is not subject to the
pleading-with-particularity requirements of Rule 9(b) but need
only meet the bare-bones notice-pleading requirements of Rule
8(a).” (internal citations omitted)); Mendez v. Bank of Am. Home
Loans Servicing, LP, __ F. Supp. 2d __, 2012 WL 112506, at *16
(E.D.N.Y. Jan 14., 2012).
Cablevision’s cases on this point do
not compel a different conclusion.
In Ozbakir v. Scotti, for
example, the court dismissed the plaintiffs’ Section 349 claims
without clearly determining that Rule 9 applied.
The court
explained that the plaintiff’s claims lacked even the baseline
14
plausibility required by Rule 8.
764 F. Supp. 2d 556, 575-76
(W.D.N.Y. 2011).
The Court need not definitively resolve this issue,
though, because Plaintiffs have not stated a Section 349 claim
even when viewed through Rule 8’s more lenient lens.
Under this
statute,
‘consumer-
“[h]armed
oriented’
deceptive,
injury.”
practice
and
(3)
consumers
that
was
that
the
must
(2)
establish
(1)
materially
plaintiff
a
misleading
suffered
a
or
resulting
M & T Mortg. Corp. v. White, 736 F. Supp. 2d 538, 570
(E.D.N.Y. 2010); see also Ammirato v. Duraclean Int’l, Inc., 687
F. Supp. 2d 210, 221 (E.D.N.Y. 2010); Stutman v. Chem. Bank, 95
N.Y.2d 24, 29, 709 N.Y.S.2d 892, 895, 731 N.E.2d 608, 611-12
(2000).
Plaintiffs’
theory
has
two
components.
First,
Plaintiffs maintain that Cablevision represented that it would
carry the Fox Channels despite having reason to know that an
interruption of that service was imminent.
(See CAC ¶¶ 63-64.)
In their opposition brief, Plaintiffs clarify that this theory
includes the idea that Cablevision failed to warn subscribers in
advance that the Fox Channels would be disconnected.
22.)
(Pl. Opp.
Second, Plaintiffs argue that Cablevision’s billing for
service in advance and later failing to credit subscribers for
the disruption constituted a deceptive practice.
(Id. at 24.)
The Court assumes without deciding that the alleged conduct is
15
“consumer-oriented” and addresses each of Plaintiffs’ theories
in turn.
The
specify
first
any
theory
misleading
fails
because
Plaintiffs
affirmative
do
advertisements
not
or
representations and because Cablevision’s alleged omission was
not
objectively
misleading.
See,
e.g.,
Corsello
v.
Verizon
N.Y., Inc., 77 A.D.3d 344, 365, 908 N.Y.S.2d 57, 75 (2d Dep’t
2010).
Assuming it is pled with enough factual specificity,
Plaintiffs’ argument--that Cablevision misled its customers by
failing to warn them about an upcoming service interruption--is
nevertheless
flawed.
This
theory
assumes
that
Cablevision’s
channel line-up was set in stone and that its alleged omission
was tantamount to a representation that there would never be a
change in service.
Under the circumstances of this case, this
is the only way that the alleged deception could have caused
Plaintiffs’
injury:
their
programming for two weeks.
paying
for
but
not
receiving
Fox
See Strutman, 731 N.E.2d at 611-12
(listing causation as an element of Section 349 claims).
But
Plaintiffs’ argument is belied by the Terms of Service, which
expressly contemplated service and program interruptions.
¶ 4.)
not
(TOS
Thus, in this case, Cablevision’s alleged omission would
have
misled
a
reasonable
subscriber
service interruptions never occur.
16
into
believing
that
See e.g., Spagnola v. Chubb
Corp.,
574
defined
F.3d
64,
objectively
74
as
(2d
acts
Cir.
2009)
likely
to
(“Deceptive
mislead
a
acts
are
reasonable
consumer acting reasonably under the circumstances.” (quoting
Boule
v.
Hutton,
328
F.3d
84,
94
(2d
Cir.
2003)
(internal
quotation marks and brackets omitted))).
Plaintiffs’ second theory--that Cablevision’s failure
to provide a credit to subscribers who suffered the Fox outage
was
itself
a
deceptive
practice--is
also
flawed
because
Plaintiffs cannot establish an injury flowing from the alleged
deception beyond what is covered by their breach of contract
claim.
In contrast to Plaintiff’s first theory, under which the
purported injury was the loss of Fox programming, see Strutman,
731 N.E.2d at 612 (under Section 349, alleged injury need not be
pecuniary), the injury under the second theory is the loss of
the rebate that Plaintiffs argue they are owed under the Terms
of Service.
This is insufficient to state a Section 349 claim
that is independent from Plaintiffs’ breach of contract claim.
See Spagnola, 574 F.3d at 74 (“Although a monetary loss is a
sufficient injury to satisfy the requirement under § 349, that
loss
must
breach
be
of
independent
contract.”
of
the
(affirming
loss
caused
dismissal
by
of
the
alleged
Section
349
claim)).
Plaintiffs also allege a claim under General Business
17
Law Section 350, which prohibits “[f]alse advertising in the
conduct of any business, trade or commerce or in the furnishing
of any service.”
Section
350
N.Y. GEN. BUS. L. § 350.
claims,
which
pertain
The standard for
specifically
to
false
advertisements, is identical to the standard for claims under
Section 349, discussed above.
Denenberg v. Rosen, 71 A.D.3d
187, 194, 897 N.Y.S.2d 391, 395-96 (1st Dep’t 2010) (citing
Goshen v. Mut. Life Ins. Co. of N.Y., 98 N.Y.2d 314, 324 n.1,
746
N.Y.S.2d
Plaintiffs
858,
must
774
show
‘consumer-oriented’;
N.E.2d
“(1)
(2)
1190
the
(2002)).
challenged
defendant
engaged
To
prevail,
transaction
in
deceptive
was
or
materially misleading acts or practices; and (3) plaintiff was
injured
conduct.”
by
reason
Id.
of
defendant's
deceptive
or
misleading
Plaintiffs’ Section 350 claim fails both because
the CAC does not allege a deceptive or materially misleading
advertisement and because of the shortcomings addressed in the
discussion of their Section 349 claim.
2. Connecticut State Law Claims
Plaintiffs
also
allege
a
claim
under
Connecticut’s
Unfair Trade Practices Act (“CUTPA”), which prohibits “unfair
methods of competition and unfair or deceptive acts or practices
in the conduct of any trade or commerce.”
110b(a).
To
prevail,
Plaintiffs
18
CONN. GEN. STAT. § 42must
establish
that
Cablevision,
“while
acting
in
trade
or
commerce,
engaged
in
unfair or deceptive acts that caused plaintiffs to suffer an
ascertainable loss.”
Walsh v. Seaboard Sur. Co., 94 F. Supp. 2d
205, 212 (D. Conn. 2000).
“Plaintiffs may establish a CUTPA
violation by showing either a deceptive or unfair practice or a
practice amounting to a violation of public policy.”
practice
is
deceptive
representation,
if
omission,
“it
or
is
a
other
materially
practice
that
reasonably interpreted under the circumstances.”
Id.
A
misleading
a
consumer
Id. at 213.
A
practice is unfair under CUTPA “(1) if it offends public policy
as
it
has
otherwise,
been
(2)
unscrupulous,
consumers.”
support
a
established
if
statutes,
it
is
immoral,
(3)
or
Id.
by
if
it
the
unethical,
causes
common
law
or
oppressive
or
substantial
injury
to
“[A]ll three criteria need not be satisfied to
finding
of
unfairness.
A
practice
may
be
unfair
because of the degree to which it meets one of the criteria or
because to a lesser extent it meets all three.”
Rudel Machinery
Co. v. Giddings & Lewis, Inc., 68 F. Supp. 2d 118, 129 (D. Conn.
1999) (quoting Associated Inv. Co. v. Williams Assocs. IV, 230
Conn. 148, 156, 645 A.2d 505 (1994)).
Plaintiffs need not plead
their CUTPA claims with particularity.
Providence
Health
Solutions
LLC,
No.
Empower Health LLC v.
10–CV–1163,
2011
WL
2194071, at *5 (D. Conn. June 3, 2011) (noting that CUTPA claims
19
asserted in federal court need only satisfy Rule 9 if they are
based on fraud allegations).
Here,
regardless
of
whether
Cablevision’s
alleged
conduct is styled as deceptive or unfair, Plaintiffs have not
stated
a
CUTPA
claim
because
their
CUTPA
allegations
state a breach of contract claim in disguise.
simply
Although “[t]he
same facts that establish a breach of contract claim may be
sufficient to establish a CUTPA violation,” not every “breach
rises to the level of a CUTPA violation.”
Greene v. Orsini, 50
Conn. Supp. 312, 315, 926 A.2d 708, 710 (Conn. Super. 2007).
“A
simple breach of contract does not offend traditional notions of
fairness and, standing alone, does not offend public policy so
as to invoke CUTPA.”
view).
Greene, 926 A.2d at 711 (applying majority
A CUTPA claim requires more than a simple breach of
contract; generally, a valid CUTPA claim depends on aggravating
circumstances
that
amount
deliver on a promise.”
to
more
than
just
“a
failure
to
Id.; see also O&G Indus., Inc. v. Earth
Tech., Inc., 2010 WL 625581, at *6-7 (Conn. Super. Jan. 6, 2010)
(unpublished) (noting majority view); cf. United Steel, Inc. v.
Haynes Constr. Co., 2006 WL 2734307, at *4 (Conn. Super. Sept.
12, 2006) (unpublished).
Here, Plaintiffs have not alleged any
aggravating circumstances that would give rise to a CUTPA claim
independent from their breach of contract claim.
20
Accordingly,
their CUTPA claim is dismissed.
3. New Jersey State Law Claims
Plaintiffs have also failed to state a consumer fraud
claim under New Jersey’s Consumer Fraud Act (the “CFA”).
To
state a claim, Plaintiffs “must allege facts which, if proven,
would
establish
commercial
promise,
that
practice,
defendant
deception,
misrepresentation,
used
fraud,
or
an
false
the
‘unconscionable
pretense,
knowing,
false
concealment,
suppression, or omission of any material fact with intent that
others rely upon such concealment, suppression or omission, in
connection
with
merchandise.”
the
sale
of
or
advertisement
of
any
Quigley v. Esquire Deposition Servs., LLC, 409
N.J. Super. 69, 77, 975 A.2d 1042, 1046-47 (N.J. Super. A.D.
2009) (quoting N.J.S.A. 56:8-2); see also Kleinman v. Merck &
Co., 417 N.J. Super. 166, 180, 8 A.3d 851, 860 (N.J. Super. L.
2009).
They must also allege a loss of money or property as a
result of Cablevision’s wrongful conduct.
1046-47.
Where,
as
here,
a
plaintiff
Quigley, 975 A.2d at
alleges
a
wrongful
omission, “the plaintiff must show that the defendant acted with
knowledge, and intent is an essential element of the fraud.”
Cox v. Sears Roebuck & Co., 138 N.J. 2, 18, 647 A.2d 454, 462
(1994).
Plaintiffs have not alleged that Cablevision intended
to mislead its customers by not timely advising them of the
21
impending service change, and thus their omission-based claim
fails.4
Plaintiffs’
claim
that
Cablevision
deceived
its
customers by failing to provide the rebate that was allegedly
promised under the Terms of Service also fails to state a New
Jersey consumer fraud claim.
requires
something
more
Similar to CUTPA, New Jersey law
than
a
simple
breach
of
contract.
Papoutsakis v. Bank of Am., No. 10-CV-2147, 2011 WL 221703, at
*4
(D.N.J.
Jan.
20,
2011);
see
also
Cox,
647
A.2d
at
462.
Accordingly, Plaintiffs’ claim under the CFA is dismissed.
E. Injunctive Relief
Plaintiffs also seek a permanent injunction that would
prohibit Cablevision “from ignoring its contractual deadlines
with content providers” and compel it to “enter into a dispute
resolution mechanism” to resolve disagreements with its content
providers.
(CAC ¶ 97.)
Cablevision’s brief sets forth a host
of reasons why an injunction would be inappropriate in this case
(Def. Br. 23-25); suffice to say here that Plaintiffs have an
adequate remedy at law for alleged past contract breaches and
that a request to enjoin future breaches is “nothing more than
unripe speculation.”
Advanced Global Tech., LLC v. XM Satellite
4
As with Plaintiffs’ claims under New York law, the Court need
not decide whether Federal Rule 8 or 9 applies to Plaintiffs’
New Jersey consumer protection claims. Because Plaintiffs make
no attempt whatsoever to allege intent, the allegations would
fail to state a claim under either standard.
22
Radio, Inc., No. 07-CV-3654, 2007 WL 3196208, at *3 (S.D.N.Y.
2007).
Accordingly, Plaintiffs’ request for an injunction is
dismissed.
CONCLUSION
For
dismiss
the
the
CAC
foregoing
is
reasons,
GRANTED
IN
Cablevision’s
PART
AND
DENIED
motion
IN
to
PART.
Plaintiffs’ breach of contract claim survives and the rest of
their
claims
are
dismissed.
Plaintiffs
may
file
a
second
consolidated amended complaint consistent with this Memorandum &
Order within twenty-one (21) days.
Further, and pursuant to the Court’s February 1, 2011
Memorandum & Order consolidating the Cablevision cases (Docket
Entry 25), a related case, Siegel v. Cablevision Systems Corp.,
No.
11-CV-0394
(E.D.N.Y.),
shall
be
action (see Docket Entry 25 at 3 n.1).
is
respectfully
directed
to
docket
consolidated
with
The Clerk of the Court
this
order
on
Consolidated Docket and on Docket No. 11-CV-0394.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
March
28 , 2012
Central Islip, New York
23
this
the
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