Parker Madison Partners v. Airbnb, Inc.

Filing 34

MEMORANDUM & OPINION re: 23 MOTION to Dismiss filed by Airbnb, Inc. For the foregoing reasons, Defendant's motion to dismiss the Amended Complaint for lack of Article III standing is GRANTED. The Clerk of Court is directed to terminate the open motion at Document 23 and close this case. SO ORDERED. (Signed by Judge Vernon S. Broderick on 9/29/2017) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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PARKER MADISON PARTNERS,
:
individually and on behalf of all others
:
similarly situated,
:
:
Plaintiff,
:
:
- against :
:
:
AIRBNB, INC.,
:
:
Defendant :
:
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9/29/2017

16-CV-8939 (VSB)
MEMORANDUM & OPINION

Appearances:
Jeffrey M. Norton
Roger A. Sachar, Jr.
Newman Ferrara LLP
New York, New York
Counsel for Plaintiff
Roberta A. Kaplan
John C. Quinn
Kaplan & Company, LLP
New York, New York
Counsel for Defendant
VERNON S. BRODERICK, United States District Judge:
Plaintiff Parker Madison Partners brings this putative class action on behalf of itself and a
class of licensed real estate brokers seeking injunctive and declaratory relief preventing
Defendant Airbnb from engaging in alleged unfair competition and conduct violating section 349
of the New York General Business Law (“GBL”) by virtue of providing real estate brokerage
services in New York without the licenses mandated by the New York Real Property Law
(“RPL”). (Doc. 18.) Before me is Defendant Airbnb’s motion to dismiss the Amended
Complaint. (Doc. 23.) Because I find that Plaintiff lacks Article III standing to pursue its

claims, Defendant’s motion to dismiss is GRANTED.
Background1
Airbnb was founded in 2008 and is a “marketplace for people to list, discover, and book
unique accommodations around the world – online or from a mobile phone or tablet.” (Am.
Compl. ¶ 32.)2 Airbnb facilitates approximately 25,000 rental transactions per day in New York
City. (Id. ¶ 33.) Those who are members of Airbnb can either list and rent their properties
(“Hosts”) or find properties to rent (“Guests”). (Id. ¶¶ 4, 34.) Plaintiff and the purported class it
seeks to represent are licensed real estate brokers and real estate brokerage companies in the
State of New York. (Id. ¶¶ 2, 8.) Airbnb is not a licensed real estate broker, but provides
services such as listing and advertising rentals, and regulating and controlling an online forum
through which its members must conduct their communications and negotiations. (Id. ¶¶ 3, 7,
39, 41.) Airbnb members have to agree to its term of service (“TOS”), and Airbnb (1) requires
Guests to agree to permit Airbnb to handle the rental funds, (2) requires members to agree to
give Airbnb absolute discretion to resolve disputes between its members, (3) offers Hosts the
option of allowing Airbnb to set the prices of their rentals, (4) makes a free-of-charge
photographer available to take pictures of Host properties, and (5) purchases outside advertising
to promote its website. (Id. ¶ 39.) Furthermore, Airbnb’s TOS advises visitors to its website that
Airbnb is not a “real estate broker.” (Id. ¶ 44.)
Airbnb also processes rental payments and takes a percentage of the payment as a fee
and/or commission from the Hosts and Guests. (Id. ¶ 4.) Specifically, Airbnb charges Hosts

1
The following facts are taken from the amended complaint and are assumed to be true for purposes of this motion.
See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002). However, my references to the factual allegations
should not be construed as a finding as to their veracity, and I make no such findings.
2
“Am. Compl.” refers to the Amended Class Action Complaint filed on December 26, 2016 (the “Amended
Complaint”). (Doc. 18.)

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three percent of the rental payments received, and processes that percentage prior to distributing
the balance of the payments to the Hosts. (Id. ¶¶ 35–36.) Airbnb also charges Guests a
commission. (Id. ¶ 37.) Airbnb does not disclose the precise percentage of those commissions,
but rather states that they fall somewhere between six percent and twelve percent of the rental
contract. (Id. ¶ 38.)
Airbnb does not avoid conflicts of interest and does not provide the standard disclosures
and waivers provided by real estate brokers. (Id. ¶¶ 8, 42, 46.) Plaintiff claims that as a result,
“licensed brokers . . . are harmed by a massive-scale market competitor that performs real estate
brokerage services without a license and without oversight.” (Id. ¶ 9.) Plaintiff states that it and
the putative class “have an interest in not being subject to competition in a commercial arena
reserved exclusively for licensed brokers, and in maintaining the integrity of the licensed real
estate broker profession.” (Id. ¶ 10.) Plaintiff further claims that by not following the RPL,
“Airbnb takes unfair advantage of the real estate rental market and the consumers who are
entitled to the protections afforded by licensed and regulated real estate brokers,” and that
allowing Airbnb to continue operating in this way “will have severe repercussions for the
commercial space reserved for licensed real estate brokers and render the protections of [the
RPL] meaningless.” (Id. ¶¶ 48–49.)
Procedural History
On November 17, 2016, Plaintiff filed this action, (Doc. 1), as well as a statement of
relatedness, (Doc. 3), and on November 29, 2017, the case was accepted as related to a matter
pending before me. (Dkt. Entry Nov. 29, 2017). Soon after the case was assigned to my docket,
on December 7, 2016, Plaintiff filed a motion for summary judgment. (Doc. 4.) Defendant filed
a letter addressing Plaintiff’s motion for summary judgment on December 8, 2016, (Doc. 10),

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and Plaintiff responded later that same day, (Doc. 11). I directed the parties to appear for a
conference, (Doc. 12), which was held on December 20, 2016. During the conference, after
Defendant expressed its desire to file a motion to dismiss for lack of subject matter jurisdiction
based on a lack of standing, I noted—and Plaintiff’s counsel agreed—that if I do not have
jurisdiction I would not “reach the summary judgment issue.” (Doc. 21 at 4:2-13). Based upon
my discussion with counsel at the conference, I stayed briefing on the summary judgment
motion, stayed discovery, and set a briefing schedule for Defendant’s motion to dismiss. (Id. at
11:8-12:18.)
Plaintiff then filed an amended putative class action complaint on December 26, 2016.
(Doc. 18.) Thereafter, in accordance with the briefing schedule set at the December 20
conference, Defendant submitted its motion to dismiss on January 31, 2017, (Doc. 23), along
with accompanying papers, (Docs. 24–25), Plaintiff submitted its opposition on March 3, 2017,
(Doc. 26), and Defendant submitted a reply on March 17, 2017, (Doc. 27). Plaintiff further filed
a letter motion for leave to file a sur-reply, (Doc. 28), which I denied, (Doc. 30).
Legal Standard
Rule 12(b)(1)
A claim may be “properly dismissed for lack of subject matter jurisdiction under Rule
12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “Unlike Article III standing,
which ordinarily should be determined before reaching the merits, statutory standing may be
assumed for the purposes of deciding whether the plaintiff otherwise have a viable cause of
action.” Coan v. Kaufman, 457 F.3d 250, 256 (2d Cir. 2006) (citations omitted). In deciding a
Rule 12(b)(1) motion to dismiss, “the district court must take all uncontroverted facts in the

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complaint . . . as true, and draw all reasonable inferences in favor of the party asserting
jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir.
2014). However, “jurisdiction must be shown affirmatively, and that showing is not made by
drawing from the pleadings inferences favorable to the party asserting it.” Morrison v. Nat’l
Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). Furthermore, “[i]n resolving a motion to
dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) a district court may consider
evidence outside the pleadings.” Id.
Rule 12(b)(6)
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim will have “facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. This standard demands “more than a sheer possibility
that a defendant has acted unlawfully.” Id. “Plausibility . . . depends on a host of considerations:
the full factual picture presented by the complaint, the particular cause of action and its elements,
and the existence of alternative explanations so obvious that they render plaintiff’s inferences
unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011).
In considering a motion to dismiss brought under Rule 12(b)(6), a court must accept as
true all well-pleaded facts alleged in the complaint and must draw all reasonable inferences in
the plaintiff’s favor. Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). A
complaint need not make “detailed factual allegations,” but it must contain more than mere
“labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Iqbal,

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556 U.S. at 678 (internal quotation marks omitted). Although all allegations contained in the
complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Id.
Discussion
Defendant proffers a number of arguments in support of its motion to dismiss, including
that Plaintiff lacks Article III standing to proceed with this action. (See Def.’s Mem. 11–15.)3
Defendant also contends that Plaintiff lacks “statutory standing” to bring its two causes of
action—claims brought under GBL § 349 and the New York common law for unfair
competition—and that Plaintiff fails to state a claim for which relief can be granted. (See id. 7–
11, 15–20.) Because “standing is a threshold matter [that a court] must resolve before reaching
the merits,” Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 44 (2d Cir. 2015)
(internal quotation marks and citation omitted), I begin my analysis with Article III standing.4
Article III Standing
1. Applicable Law
Article III of the Constitution circumscribes a court’s authority to hear cases, limiting the
jurisdiction of federal courts to “cases” or “controversies.” U.S. Const. art. III, § 2. To meet the
minimum constitutional threshold, a plaintiff must establish “first, that it has sustained an ‘injury
in fact’ . . . ; second, that the injury was in some sense caused by the opponent’s action or
omission; and finally, that a favorable resolution of the case is ‘likely’ to redress the injury.”
Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.Á.R.L., 790 F.3d 411, 417 (2d Cir. 2015)

3

“Def.’s Mem.” refers to the Memorandum of Law in Support of Defendant’s Motion to Dismiss. (Doc. 24.)

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As the Supreme Court recently clarified, what has been dubbed “statutory standing” and previously “prudential
standing” is a misnomer, as the true question is whether there is an “absence of a valid (as opposed to arguable)
cause of action [that] does not implicate subject-matter jurisdiction, i.e., the court’s statutory or constitutional power
to adjudicate the case.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387 & n.4 (2014).
Rather, the real question for purposes of the previously-called “statutory standing” is “whether the particular
plaintiff ‘has a cause of action under the statute.’” Am. Psychiatric Ass’n v. Anthem Health Plans, Inc., 821 F.3d
352, 359 (2d Cir. 2016) (quoting Lexmark Int’l, Inc., 134 S. Ct. at 1387).

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(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). “That a suit may be a
class action adds nothing to the question of standing, for even named plaintiffs who represent a
class must allege and show that they personally have been injured, not that injury has been
suffered by other, unidentified members of the class to which they belong and which they
purport to represent.” Lewis v. Casey, 518 U.S. 343, 357 (1996) (internal quotation marks and
citation omitted). The plaintiff “bears the burden of establishing these elements” and “[w]here . .
. a case is at the pleading stage, the plaintiff must ‘clearly . . . allege facts demonstrating’ each
element.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Warth v. Seldin, 422
U.S. 490, 518 (1975)).
Injury-in-fact is the “first and foremost” of the three standing elements. Id. (quoting Steel
Co. v. Citizens for Better Env’t, 523 U.S. 83, 103 (1998)). To establish this element, “a plaintiff
must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete
and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548
(quoting Lujan, 504 U.S. at 560). To be “particularized,” an injury “must affect the plaintiff in a
personal and individual way.” Id. To be “concrete,” an injury “must actually exist.” Id.
However, “concrete” is “not . . . necessarily synonymous with ‘tangible,’” and intangible harms
may, in some circumstances, satisfy the concreteness requirement. Id. at 1549. Additionally,
although a “bare procedural violation, divorced from any concrete harm,” does not satisfy the
injury-in-fact requirement, “the violation of a procedural right granted by statute can be
sufficient in some circumstances to constitute injury in fact.” Id. When deciding whether a
violation of a procedural right granted by statute constitutes an injury-in-fact, a court should
consider “whether the particular procedural violations alleged . . . entail a degree of risk
sufficient to meet the concreteness requirement.” Id. at 1550.

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2. Application
Upon examining the allegations in Plaintiff’s Amended Complaint, it is clear that
Plaintiff does not allege any actual injury tied to Airbnb’s actions. Rather, Plaintiff’s allegations
consist of conclusory statements and untethered assertions culminating in the claim that Airbnb’s
continued operation would have “severe repercussions to the commercial space reserved for
licensed real estate brokers and render the protections of RPL § 440, et seq. meaningless.” (Am.
Compl. ¶ 48.)
Specifically, Plaintiff alleges that: (1) “licensed brokers . . . are harmed by a massive
scale market competitor that performs real estate brokerage services without a license and
without oversight,” (id. ¶ 9); (2) Plaintiff and the putative class “will continue to suffer harm to
their business interests and to the integrity of the licensed real estate broker industry,” (id. ¶ 55);
and (3) Plaintiff and the putative class have an “interest” both in “protecting their business
interests and customer base,” (id. ¶ 54), and “in not being subject to competition in a commercial
arena reserved exclusively for licensed brokers and in maintaining the integrity of the licensed
real estate broker profession,” (id. ¶ 10). These conclusory statements are insufficient to
establish injury-in-fact. See Robainas v. Metro. Life Ins. Co., No. 14CV9926 (DLC), 2015 WL
5918200, at *6 (S.D.N.Y. Oct. 9, 2015) (finding plaintiff had not demonstrated concrete injury
where allegations were that they purchased riskier insurance policies and noting “conclusory
allegations of current risk do not suffice to confer Article III standing” (citation omitted)), aff’d
sub nom. Ross v. AXA Equitable Life Ins. Co., 680 F. App’x 41 (2d Cir. 2017).
The most specific allegation contained in Plaintiff’s Amended Complaint related to any
purported injury is found in Count II, where Plaintiff claims that: “As a result of Airbnb’s
conduct, Plaintiff and the putative class have suffered, and will continue to suffer, damage to

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their business, including but not limited to substantial lost revenues, threats to their industry and
the professional standards thereof, and abrogation of the importance of licensing and regulatory
compliance.” (Am. Compl. ¶ 60.) Plaintiff’s general allegations of “damage to their business,”
“threats to their industry and the professional standards” of that industry, and “substantial lost
revenues”—not directly tied to injury suffered by Plaintiff—do not establish any cognizable
injury as they do “not include a single example” or give any details whatsoever as to any actual
injury to Plaintiff connected to Airbnb’s activities. See Treiber v. Aspen Dental Mgmt., Inc., 94
F. Supp. 3d 353, 363 (N.D.N.Y. 2015) (noting that the complaint did “not state what particular
services or goods were allegedly overpriced, what billed services were allegedly not provided, or
what products and services were allegedly provided without consent or authorization,” but rather
“simply allege[d] that these are inevitable consequences of [defendant’s] business model”), aff’d,
634 F. App’x 1 (2d Cir. 2016). In fact, as Defendant points out in its brief, there are no
allegations in the Amended Complaint concerning any current or potential clients that have been
lost to Airbnb, nor are there even claims stating that Plaintiff operates in the same market as
Airbnb, let alone any allegations revealing how Plaintiff competes with Airbnb. (See Def.’s
Mem. 9 & n.5.) See Robainas, 2015 WL 5918200, at *6 (noting that “[p]laintiffs do not allege
that they would have purchased policies . . . but for its nondisclosures” (citation omitted)).
In its opposition, Plaintiff does not respond or address these points, or in any way offer
how it has been actually injured by Airbnb’s actions. The fact that Plaintiff—despite having the
opportunity to do so—fails to point to any specific fact supporting its injury or to connect that
purported injury to the members of the putative class it seeks to represent is fatal to Plaintiff’s
claims. Indeed, Plaintiff’s failure to point to any such facts is particularly telling given that
Airbnb has been in business since 2008, and one would expect that if, in fact, Plaintiff suffered

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harm, it would be able to articulate that harm with a modicum of detail.
Ultimately, any alleged “injury” derives solely from Airbnb’s purported violation of the
RPL by acting as a real estate broker without procuring the proper license. (See, e.g., Am.
Compl. ¶¶ 2–3, 5–10.) In other words, Plaintiff does not point to specific improper acts of
Defendant that have caused actual harm to it or its customers other than the alleged violation of
the RPL. However, Plaintiff cannot establish a cognizable injury based solely on an alleged
statutory violation, particularly a practice that “‘is not inherently [problematic] but becomes
problematic only’ because it [allegedly] violates a ‘provision of New York law.’” Treiber, 636
F. App’x at 3 (quoting Schlessinger v. Valspar Corp., 723 F.3d 396, 399 (2d Cir. 2013)); see also
Spokeo, 136 S. Ct. at 1549 (“Article III standing requires a concrete injury even in the context of
a statutory violation.”). In fact, as Defendant notes, the RPL—like the proscribed corporate
practice of medicine in Treiber, 636 F. App’x at 3—does not even “afford[ ] [any] enforcement
rights” to Plaintiff. (See Def.’s Mem. 14 (“[T]he Real Property Law was not intended to protect
real estate brokers. . . .”).)
Plaintiff has not established an injury-in-fact that was caused by Airbnb’s actions
sufficient to support Article III standing. Therefore, Defendant’s motion to dismiss the
Amended Complaint is granted.
Failure to State a Claim
Because I find that Plaintiff lacks standing to pursue its claims, I do not reach
Defendant’s arguments under Rule 12(b)(6), nor do I reach its “statutory standing” arguments.
See Kelen v. Nordstrom, Inc., No. 16 Civ. 1617 (PAE), 2016 WL 7373807, at *6 (S.D.N.Y. Dec.
16, 2016) (“[B]ecause the Court has held that [plaintiff] lacks standing to pursue her claims, so
as to require dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction, the Court has

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no occasion to reach [defendant’s] arguments under Rule 12(b)(6).”).
Conclusion
For the foregoing reasons, Defendant’s motion to dismiss the Amended Complaint for
lack of Article III standing is GRANTED. The Clerk of Court is directed to terminate the open
motion at Document 23 and close this case.

SO ORDERED.
Dated: September 29, 2017
New York, New York
______________________
Vernon S. Broderick
United States District Judge

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