Fink v. Time Warner Cable, 810 F. Supp. 2d 633

Plaintiffs sued Time Warner Cable for a nationwide CFAA class action and related state-law claims arising from alleged throttling of peer-to-peer traffic on Road Runner.
Plaintiffs allege THG throttling by forging reset packets to impede P2P and other applications, causing damages and loss of service reliability.
Plaintiffs claim misrepresentations in advertising that Road Runner was fast and always-on, which allegedly caused premium payments.
Plaintiffs seek certification of a nationwide class covering subscribers from 2003 onward, with NY and CA subclasses for Fink and Noia respectively.
Defendant moved for judgment on the pleadings (Counts I, II, IV–VI, VIII–XI) and summary judgment (Count VII); Plaintiffs moved to strike some supporting affidavits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
CFAA loss requirement	Fink/Noia suffered CFAA loss under §1030(g).	Loss not pleaded within statutory meaning; insufficient remedial costs.	Loss insufficiency; Counts I-II denied for loss; Count III results on damage/access only.
CFAA damage and access	Defendant impaired data/access via reset packets; damage and access established.	No adequate damage/impairment under CFAA.	Damage and access pleaded plausibly; Court Grant/Deny split: damage element denied, access and damage afforded—Counts I-II survive, Count III denied as to loss.
NY GBL § 349 claim	Advertisements were deceptive and misleading.	Advertisements constitute puffery; not actionable.	Count IV dismissed; puffery and lack of concrete misrepresentations fail to support § 349 claim.
Breach of contract	Existence/performance of a contract to provide high-speed service; breach by throttling.	Plaintiffs failed to plead essential contract terms.	Count V dismissed for failure to plead essential terms with specificity.
Unjust-enrichment and implied contract	Advertised high-speed service yielded unjust enrichment to THG.	No breach-based basis; claims improper.	Count VIII and VI dismissed; unjust enrichment and implied-in-fact contract claims rejected.

Nexans Wires S.A. v. Sark-USA, Inc., 319 F. Supp. 2d 468 (S.D.N.Y. 2004) (loss under CFAA limited to remedial costs to address damage)
Lipton v. Nature Co., 71 F.3d 464 (2d Cir. 1995) (puffery not actionable as a matter of law)
Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (N.Y. 1995) (standards for deceptive practices under CUCL and PV concepts)
Castrol Inc. v. Pennzoil Co., 987 F.2d 939 (3d Cir. 1993) (puffery vs. misrepresentation distinction)