Derbaremdiker v. Applebee's International, Inc., 1:12-cv-01058

Plaintiff filed a putative class action on March 1, 2012 alleging deceptive practices and unjust enrichment related to Applebee’s sweepstakes.
Defendant moved to dismiss under Rule 12(b)(6); oral argument occurred September 21, 2012.
Sweepstakes entries were made via Plaintiff’s receipt and the website www.MyApplebeesVisit.com, leading to a daily drawing.
Receipts and website disclosed prizes and directed users to Official Rules; Complete Sweepstakes Rules detailed daily prizes, entries, and pooling.
Plaintiff alleged misrepresentations that prizes and competition were limited to Applebee’s customers; asserted multiple daily prizes; and claimed unfavorable odds against non-Applebee’s entrants.
Court granted defendant’s motion to dismiss the complaint in its entirety and refused leave to amend.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §349 claim is plausibly alleged.	Derbaremdiker argues receipts/website misled consumers.	Disclosures on Website/Rules render omissions non-material.	Dismissed; §349 claim fails.
Whether there is actionable injury under §349.	Plaintiff claims reduced odds constitute actual injury.	No legally cognizable injury beyond deception; no positive harm shown.	Dismissed; no actual injury shown.
Whether unjust enrichment claim is viable.	Plaintiff conferred benefits; defendant enriched unjustly.	No enrichment or inequity; claim duplicates §349 and fails.	Dismissed; unjust enrichment claim insufficient.
Whether §350 false advertising claim remains viable.	Plaintiff contends false advertising claims; later withdrawn.	Withdrawal acknowledged; claim should be dismissed.	Dismissed; §350 claim withdrawn and granted.

Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940 (N.Y. 2012) (elements for §349 deception: consumer-oriented, materially misleading, injury)
Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20 (N.Y. 1995) (material deception requirement and standing in consumer actions)
Gaidon v. Guardian Life Ins. Co. of Am., 94 N.Y.2d 330 (N.Y. 1999) (objective test for materially misleading statements)
Cohen v. JP Morgan Chase & Co., 498 F.3d 111 (2d Cir. 2007) (materiality and reasonable consumer standard in §349 context)
Small v. Lorillard Tobacco Co., 94 N.Y.2d 43 (N.Y. 1999) (injury required separate from deception; not purely restitutionary)
Baron v. Pfizer, Inc., 840 N.Y.S.2d 445 (N.Y. App. Div. 3d Dep’t 2007) (duty to plead actual harm in §349 actions)
Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119 (2d Cir. 1991) (adverse ruling quote on insufficient pleading under Rule 12(b)(6))