DocketNumber: 14 Civ. 4744 (LAK)
Citation Numbers: 211 F. Supp. 3d 628
Judges: Kaplan
Filed Date: 9/29/2016
Status: Precedential
Modified Date: 7/25/2022
MEMORANDUM OPINION
This matter is before the Court on defendant TouchTunes’ Motion to Dismiss the Second Amended Class Action Complaint.
Discussion
I. Claims Under New York General Business Law
A. Whether Out of State Transactions May Ground a Claim Under New York GBL.
New York General Business Law (“GBL”) Section 349 makes unlawful “[d]e-ceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” (emphasis added). GBL Section 350 makes unlawful “[fjalse advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” (emphasis added). TouchTunes contends that neither named plaintiff has stated a sufficient claim under Section 349 or 350, pointing out that neither resides in New York nor alleges that she accessed Touch-Tunes’ services or used a TouchTunes jukebox in New York.
In Goshen v. Mutual Life Insurance Company of New York,
In Cruz v. FXDirectDealer, LLC,
Given that analysis, the Cruz court reversed the district court’s dismissal of the plaintiffs claims, holding the allegations sufficient to survive at the pleading stage where the defendant foreign exchange dealer (“FXDD”) allegedly: (1) was paid in New York, (2) would not disburse any funds from customer accounts until customers mailed a form to FXDD in New York, (3) required all customer communications be sent to its New York office, and (4) included in its account agreement a governing law and forum selection clause specifying New York as the governing law and requiring that “all suits relating to the Agreement ... be adjudicated in state or federal courts located in New York.”
TouchTunes users fall into three broad categories. Some used the Touch-Tunes App which, the Court infers in the absence of any allegation to the contrary, authorized TouchTunes to charge a credit card as authorized by the App user. Some entered credit card information into a TouchTunes jukebox wherever they happened to be. And still others deposited cash into such a jukebox. If the test focused only on where the deceptive conduct took place, TouchTunes would be correct that the alleged deceptive conduct all took place outside of New York State (at least as to the named plaintiffs and class members who used TouchTunes jukeboxes outside of New York). But Cruz instructs that the location of the transaction also may support a claim, so the inquiry does not end there. In the cases of App and credit card users TouchTunes apparently “processes customer payments”
The analysis is different with respect to cash users of the jukeboxes, a category that includes plaintiff Kelly Eng-strom.
Cruz itself recognized that the extent of the connection between an allegedly deceptive transaction and the State of New York. that is required to come within GBL Sections 349 and 350, even on the somewhat stronger facts of Cruz, was a “close call.” Moreover, Cruz at least is arguably in significant tension with Goshen, which specifically warned against an overly broad reading of the statute’s territorial reach. As the Goshen court said:
“To apply the statute to out-of-state transactions in the case before us would lead to an unwarranted expansive reading of the statute, contrary to legislative intent, and potentially leading to the nationwide, if not global application of General Business Law § 349. Furthermore, the interpretation out-of-state plaintiffs would have us adopt would tread on the ability of other states to regulate their own markets and enforce their own consumer protection laws.”24
Yet we have here named plaintiffs who used TouchTunes products in Montana and North Dakota and who allegedly were deceived by misrepresentations or omissions they encountered solely within those states. We are left further with a putative class of potentially nationwide, if not global, reach. And we have New York’s consumer protection laws said to regulate these commercial transactions in far-flung states and nations where the connections between the alleged deception and New York are somewhat strained.
This Court recognizes that at least one of its colleagues perhaps has taken Cruz this far.
B. Assuming Out-of-State Transactions Can Be Governed by the GBL, Plaintiffs Adequately Allege Claims under § 34.9 But Not § 350.
As discussed above, GBL § 349 prohibits “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state” while Section 350 makes unlawful “[f]alse advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” To state a claim under either section, a plaintiff must allege three elements: “first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act.”
1. Claims under § 349
Plaintiffs’ Section 349 claim alleges essentially three
Plaintiffs’ first assertion fails because the failure of TouchTunes to refund credits for unplayed songs despite its alleged ability to so was not, in and of itself, misleading. Plaintiffs have not alleged any facts to suggest that they reasonably expected such a refund, and TouchTunes Terms of Use state that refunds will not be issued for unplayed songs “under any
Plaintiffs’ second allegedly misleading act, on the other hand, passes muster. The complaint states that plaintiffs witnessed bartenders or managers at Touch-Tunes-equipped venues skip songs in the TouchTunes queue.
TouchTunes further argues that its Terms of Use sufficiently disclosed this fact because they disclosed generally that songs may not play and that consumers will not receive a refund “under any circumstances.”
Next, plaintiffs claim that users were misled by TouchTunes’ failure to disclose when credits purchased through the App would expire. The Terms of Use stated that “if you apply your credits to a jukebox but do not use those credits to request song plays, your credits will expire after a specified period of time. If your credits expire they will not be reapplied to your account.”
2. Claims Under Section S50
This Court’s January 7, 2015 Memorandum and Order stated that plaintiffs’ First Amended Complaint contained “no allegations of any specific advertising by TouchTunes in New York or anywhere else.”
II. Breach of the Duty or Implied Covenant of Good Faith and Fair Dealing
Plaintiffs contend that Touch-Tunes breached the duty of good faith and fair dealing by failing to disclose, in its Terms of Use, that the hardware gives venue owners the capability to skip songs.
III. Unjust Enrichment
Plaintiffs also allege unjust enrichment in the alternative to their breach of good faith and fair dealing claim.
Unjust enrichment is a quasi-contract theory of recovery, “an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned.”
Conclusion
For the foregoing reasons, defendant’s motion to dismiss the second amended complaint [DI 21] is granted to the extent that the action is dismissed insofar as it is brought on behalf of Ms. Engstrom and dismissed insofar as it is brought on behalf of Ms. Cline except insofar as she seeks recovery under GBL Section 349 with respect to her transaction as a user of the TouchTunes App.
SO ORDERED.
. DI21.
. DI 18.
. 98 N.Y.2d 314, 746 N.Y.S.2d 858, 774 N.E.2d 1190 (2002).
. Id. at 324, 746 N.Y.S.2d 858, 774 N.E.2d 1190.
. Id.
. Id. at 324-25, 746 N.Y.S.2d 858, 774 N.E.2d 1190.
. Id. at 325, 746 N.Y.S.2d 858, 774 N.E.2d 1190.
. Id.
. Id. at 325-26, 746 N.Y.S.2d 858, 774 N.E.2d 1190.
. Id. at 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190.
. 720 F.3d 115 (2d Cir.2013).
. Id. at 122.
. Id. at 122-23.
. Id.; see also Gorbaty v. Wells Fargo Bank, N.A., No. 10-CV-3291, 2014 WL 4742509 (E.D.N.Y. Sept. 23, 2014) (noting that although "the Cruz court applied the transactional inquiry to a case brought by out-of-state victims who executed transactions in New York, it did not purport to hold that the ‘transaction’ rule applied universally”).
. Cruz, 720 F.3d at 123; see also id. at 123 n. 4 (leaving open the possibility that location of the deception, not the transaction, could support a Section 349 claim also).
. Id. at 123-24.
. Compare Chevron Corp. v. Donziger, 871 F.Supp.2d 229, 256-57 (S.D.N.Y.2012).
. DI 19 ¶ 16.
. DI 24 at 16 (Pis.' Mem. of Law in Opp'n to Def.’s Mot. to Dismiss the Second Am. Compl.); DI 19 ¶¶ 16.
. DI 19 ¶ 14.
. DI 19 ¶ 95 ("Plaintiff Kelly Engstrom is a Non-App user, who pain in cash for song selections
. DI 19 ¶¶ 58-59.
. Of course, it is much more likely that the cash is deposited in local or regional bank accounts, which would further attenuate the connection to New York.
. Goshen, 98 N.Y.2d at 325, 746 N.Y.S.2d 858, 774 N.E.2d 1190.
. See Ward v. TheLadders.com, 3 F.Supp.3d 151, 168 (S.D.N.Y.2014); but see Gorbaty v. Wells Fargo Bank, N.A., No. 10-cv-3291, 2014 WL 4742509 (E.D.N.Y. Sept. 23, 2014).
. Ward, 3 F.Supp.3d at 168 (quoting Stutman v. Chem. Bank, 95 N.Y.2d 24, 709 N.Y.S.2d 892, 731 N.E.2d 608 (2000)) (stating the standard for § 349); accord Silva v. Smucker Natural Foods, Inc., No. 14-CV-6154, 2015 WL 5360022, at *9 (E.D.N.Y. Sept. 14, 2015) (quoting DeAngelis v. Timberpeg E., Inc., 51 A.D.3d 1175, 858 N.Y.S.2d 410, 414 (3d Dep’t 2008)) (stating the same three elements for § 350). The first element— whether the practice was consumer-oriented—is not in dispute in either the section 349 or 350 claims.
. Miller v. Wells Fargo Bank, N.A., 994 F.Supp.2d 542, 557 (S.D.N.Y.2014) (quoting Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 26, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995)).
. Plaintiffs in fact allege four misleading acts, addressing separately that TouchTunes allegedly fails to disclose in general that venue owners can skip songs and that the Terms of Use misleadingly fail to state this fact. Logically, however, these allegations are so interrelated that they are Better addressed as one.
. See, e.g., Leider v. Ralfe, 387 F.Supp.2d 283, 296-97 (S.D.N.Y.2005) (dismissing general allegations of anti-competitive practices as insufficient under § 349).
. DI 19 ¶¶ 90-93, 96-101.
. DI 25 at 7.
. DI 19 ¶ 75.
. Goldemberg v. Johnson & Johnson Consumer Cos., Inc., 8 F.Supp.3d 467, 478 (S.D.N.Y.2014) ("A court may make [the determination of whether an act is materially misleading to a reasonable consumer] as a matter of law, although usually such a determination is a question of fact.” (internal citations omitted)).
. DI 19 ¶ 64. Plaintiffs claim also that this failure violates federal regulations governing gift cards, 12 C.F.R. § 1005.20, which requires that expiration dates on gift cards and similar instruments be clearly marked and, generally, not less than five years. It is not clear that TouchTunes credits fall within the ambit of these requirements, which specifically exclude, among others, instruments that are "[r]eloadable and not marketed or labeled as a gift card or gift certificate.” 12 C.F.R. § 1005.20(b)(2). However, the Court need not resolve this because Plaintiffs do not state this as a separate claim and because the Court finds plaintiffs’ allegations are sufficient to survive a motion to dismiss on their own merits.
.Defendant urges the Court to take judicial notice of a screenshot of the App included in its memorandum of law in support of its motion to dismiss, which TouchTunes claims is proof that it discloses the expiration date
. Fink v. Time Warner Cable, 714 F.3d 739, 742 (2d Cir.2013) (“[T]here can be no section 349(a) claim when the allegedly deceptive practice was fully disclosed .... ” (quoting Broder v. MBNA Corp., 281 A.D.2d 369, 371, 722 N.Y.S.2d 524 (1st Dep't 2001))).
. DI 18 at 3.
. Chiste v. Hotels.com L.P., 756 F.Supp.2d 382, 404-05 (S.D.N.Y.2010) (“[Plaintiff] provides no examples of the alleged deceptive advertising or statements by Hotels.com, and, even on a motion to dismiss, this Court need not accept her conclusory statements.”).
. See, e.g., Knife Rights, Inc. v. Vance, 802 F.3d 377, 388-90 (2d Cir.2015) (finding no abuse of discretion in denying leave to file second amended complaint where amendment would be futile).
. DI 19 ¶¶ 117-19.
. See, e.g., DI 27 at 7 (Additional Mem. of Law in Supp. of TouchTunes Music Corp.’s Mot. to Dismiss the Second* Amend. Compl.) (conceding that "Plaintiffs have sufficiently alleged the existence of a binding contract: the Terms of Use”).
. Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 407 (2d Cir.2006) (internal quotation and citation omitted).
.Id.
. DI 19 ¶¶ 120-25; DI 24 at 31 (describing unjust enrichment claim as being "[i]n [t]he [ajlternative”).
. IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 142, 879 N.Y.S.2d 355, 907 N.E.2d 268 (2009).
. Id.