Fink v. Time Warner Cable
2011 U.S. Dist. LEXIS 148082
S.D.N.Y.2011Background
- Plaintiffs Fink (NY) and Noia (CA) sue Time Warner Cable for a nationwide class action under CFAA, NY and CA consumer statutes, common law fraud, implied contract, and unjust enrichment.
- Plaintiffs allege Road Runner was marketed as high-speed with an always-on connection and speeds up to 3x DSL and 100x dial-up, but throttling allegedly impeded access.
- They claim throttling caused blocked/skewed use of services (e.g., Skype) and slow speeds for BitTorrent, FTP, and HTTP.
- Court previously granted in part/denied in part on a prior complaint; SAC reasserts remaining CFAA counts and state-law claims while dropping a contract claim.
- Defendant moved to dismiss under Rule 12(b)(6); court granted in full, dismissing all claims in the SAC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NY §349 claim is plausibly deceptive | Fink/Noia allege ads misrepresented speeds and always-on connection. | Advertising was non-actionable puffery or not materially misleading. | Dismissed |
| Whether CA CUCL/17500 and 1770 claims survive | CUCL/17500/1770 rely on same deceptive ads as NY claim. | Same deficiencies as NY claim; no material deception. | Dismissed |
| Whether breach of implied-in-fact contract can be maintained | Advertising created an implied contract for high-speed service. | Advertisements lack concrete terms to imply a contract. | Dismissed |
| Whether deceit, fraud and/or misrepresentation claim lies | Defendant's ads falsely stated always-on with high speeds. | New intervening case law requires pleading material falsity; claims fail. | Dismissed |
| Whether unjust enrichment claim is viable | Time Warner profited from deceptive ads while charging for high-speed service. | Unjust enrichment not supported by concrete, measurable misrepresentations. | Dismissed |
Key Cases Cited
- Walter v. Hughes Communications, 682 F. Supp. 2d 1031 (N.D. Cal. 2010) (claims of advertised speeds 'up to' may state a claim when overall speeds are affected)
- Goshen v. Mut. Life Ins. Co., 98 N.Y.2d 315 (N.Y. 2002) (deceptive acts requires higher pleading of speed/quality; distinguishable from current case)
- Cohen v. JP Morgan Chase & Co., 498 F.3d 111 (2d Cir. 2007) (elements of NY deceptive practices claim)
- Rabin v. MONY Life Ins. Co., 2007 WL 737474 (S.D.N.Y. 2007) (standard for materiality of misrepresentations)
- American High-Income Trust v. AlliedSignal, 329 F. Supp. 2d 534 (S.D.N.Y. 2004) (elements for common law fraud claim)
- Goshen v. Mut. Life Ins. Co., 98 N.Y.2d 314 (N.Y. 2002) (distinguishes overall connection claims from subset application speed claims)