Fink v. Time Warner Cable
714 F.3d 739
| 2d Cir. | 2013Background
- Plaintiffs Fink and Noia appeal a Rule 12(b)(6) dismissal of their putative statewide class action against Time Warner Cable.
- Plaintiffs allege Time Warner deceived consumers with Road Runner ads promising always-on, blazing speed, up to 3x faster than DSL, and up to 100x faster than dial-up.
- Plaintiffs claim the ads violated New York General Business Law § 349, California consumer statutes, and common-law claims of fraud, good-faith, and unjust enrichment.
- The district court concluded the complaints failed to plausibly plead deception and dismissed the claims as lacking facial plausibility.
- On appeal, the Second Circuit emphasized context and the actual advertisement, noting the record lacked the disputed ads and that only one misstatement appeared in the submitted piece.
- The court held the allegations were inconsistent with the sole ad provided and thus failed to show facial plausibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint plausibly alleges deception | Fink/Noia contend ads misled reasonable consumers. | Time Warner argues no plausible misrepresentation given context and missing full ads. | No facial plausibility; claims fail. |
| Whether the complaint survives a 12(b)(6) dismissal under Iqbal/Twombly standards | Complaint pleads deceptive marketing text and context. | Record insufficient; misstatements not supported by attached ad. | Dismissal affirmed. |
| Role of the actual advertising in determining deception | Allegations rely on specific ads identified in complaint. | Advertising must be evaluated in context; missing supporting ads undermines claim. | Insufficient factual basis; lack of the alleged ads defeats plausibility. |
| Effect of misquoting or partial quotation on plausibility | Quoted language supports deception claims. | Misquotation undermines credibility and plausibility. | Plaintiffs’ quotes inconsistent with submitted ad; claims not plausible. |
| Whether discovery is needed to determine consumer interpretation | Discovery should inform interpretation of advertising. | Motion to dismiss appropriate before discovery; record suffices. | Cart before the horse; not warranted here. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standard; facial plausibility required)
- Bell Atl. Corp. v. Twombly, 550 U.S. 554 (U.S. 2007) (plausibility standard; Rule 12(b)(6) dismissal guidance)
- Capital Mgmt. Select Fund Ltd. v. Bennett, 680 F.3d 214 (2d Cir. 2012) (considerations for plausibility on motion to dismiss)
- L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2d Cir. 2011) (full factual picture; circumstances affect plausibility)
- Freeman v. Time, Inc., 68 F.3d 285 (9th Cir. 1995) (deception determined by reasonable consumer; context matters)
- Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (N.Y. 1995) (reasonableness standard for deception under NY law)