In re Cablevision Consumer Litigation
2012 U.S. Dist. LEXIS 43278
| E.D.N.Y | 2012Background
- Cablevision subscribers in NY, CT, and NJ were unable to watch Fox Channels during a two-week 2010 outage caused by a contract dispute with News Corp.
- Cablevision had advertised carrying Fox Channels and offered a $10 credit only to MLB World Series purchasers; no broad refunds/credits to all affected customers were provided.
- Cablevision’s Terms of Service contain a 24-hour outage credit/refund provision and a force majeure-like clause for disruptions beyond Cablevision’s control.
- Plaintiffs allege breach of contract, breach of the covenant of good faith and fair dealing, unjust enrichment, and state consumer protection claims; they also seek injunctive relief.
- The court grants in part and denies in part Cablevision’s motion to dismiss, allowing the breach of contract claim to proceed and dismissing remaining claims, with a consolidation order at the end.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Paragraph 4 of the TOS supports breach of contract | Ahearn argues Cablevision failed to credit for outages and provide promised refunds. | Cablevision contends Paragraph 4 does not obligate refunds for channel suspensions and Paragraph 17 limits content obligations. | Breach claim plausibly grounded in Paragraph 4; Paragraphs 4 and 17 can be reconciled to require credits for outages. |
| Whether the implied covenant claim survives | Plaintiffs argue Cablevision acted in bad faith by not delivering advertised channels and concealing contract expiry; also by not negotiating in good faith. | Defendant argues no independent implied covenant claim; alleged facts are too conclusory or duplicative of contract claim. | Dismissed in full; subparts fail to state plausible independent claims or require specifics. |
| Whether the unjust enrichment claim is duplicative | Plaintiffs contend recoveries are available beyond contract remedies. | Recovery should be limited to contract claim; no separate unjust enrichment if contract governs. | Dismissed as duplicative of breach of contract claim. |
| Whether the state consumer protection claims (NY, CT, NJ) survive | Plaintiffs claim deceptive practices in billing/outages and failure to warn; seek relief under state statutes. | Alleged conduct is at most a breach of contract; not sufficiently deceptive or independent of contract. | All state consumer protection claims dismissed; deficiencies depend on the contract claim. |
| Whether injunctive relief is appropriate | Plaintiffs seek a permanent injunction to prevent future breaches and to compel dispute-resolution with providers. | Adequate legal remedies exist for past breaches; injunction amounts to speculation about future breaches. | Injunction denied. |
Key Cases Cited
- Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479 (2d Cir. 2011) (context for treating allegations as credible at motion stage)
- Rothenberg v. Lincoln Farm Camp, Inc., 755 F.2d 1017 (2d Cir. 1985) (contract interpretation to avoid illusory promises)
- Kel Kim Corp. v. Cent. Mkts., Inc., 70 N.Y.2d 900 (1987) (force majeure clauses require event-specific inclusion)
- Spagnola v. Chubb Corp., 574 F.3d 64 (2d Cir. 2009) (§349 injury must be independent of contract breach)
- Stutman v. Chem. Bank, 95 N.Y.2d 24 (2000) (elements of CUTPA claim; consumer deception standards)
- Greene v. Orsini, 50 Conn. Supp. 312 (Conn. Super. 2007) (CUTPA requires more than mere breach; aggravating circumstances)
- Quigley v. Esquire Deposition Servs., LLC, 409 N.J. Super. 69 (N.J. Super. 2010) (New Jersey CFA requires proof of unconscionable practice with injury)