EMINAH PROPERTIES LLC, et al., Plaintiffs, against - ENERGIZER HOLDINGS, INC., et al., Defendants.
20-CV-148 (AMD) (CLP)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
March 31, 2021
ANN M. DONNELLY, United States District Judge
ANN M. DONNELLY, United States District Judge:
Before the Court is the defendants’ motion to dismiss the second amended complaint in which the plaintiffs bring claims for breach of contract, unjust enrichment, fraudulent inducement, unfair competition, tortious interference, defamation and trade libel. For the following reasons, the motion is granted in part and denied in part.
BACKGROUND
In 2008, Hershel Brach and members of his family formed a battery distribution business, which operates under companies Eminah Properties LLC (“Eminah“) and My Battery Supplier LLC (“MBS“). (ECF No. 22 ¶¶ 16-17.) The companies acquire and re-sell batteries and related products through various channels, including an e-commerce website, Amazon, eBay and other online marketplaces. (Id. ¶¶ 17-18.) Beginning in 2008, Eminah purchased Rayovac batteries directly from their manufacturer, Spectrum. (Id. ¶¶ 23-24.) In January of 2019, defendant Energizer Holdings, Inc. acquired Spectrum‘s battery business. (Id. ¶ 26.)
Account managers from Energizer Holdings, Katherine Stein and Krista Garcia, contacted Eminah in March of 2019 about a large quantity of overstock Rayovac rechargeable batteries that Energizer Holdings was “desperate to sell.” (Id. ¶ 27, Ex. A.) Stein and Garcia
Although it did not have an immediate need for the batteries, Eminah eventually agreed to purchase the Rayovac batteries as long as Eminah would become a distributor of Energizer Products. (Id. ¶ 30.) The parties settled on prices for the Rayovac batteries. (Id. ¶ 31, Ex. B.) On May 1, 2019, Brach sent the following email about the terms of the agreement:
As discussed before, I believe that my initial offer for the Rayovac lot was fair. However, as discussed, I will accept our final agreed purchase price for the lot, provided that I can purchase directly from your company energizer products going forward. In this regard, as we discussed many times I simply request the full product access, best pricing and terms [I] anticipate my volumes to be 2-3 million+ I plan to continue to sell in the same channels that I currently service and believe that having direct access to the products will benefit both of our companies. [I] can confirm that [I] currently do not sell to target Costco or best buy, and understand that by giving me most competitive pricing, you do not want me to disrupt these chains and you can feel comfortable that [I] won[‘]t offer them the energizer products, [I] will fully respect that[.] Please confirm that the above is acceptable.
(Id. ¶ 32, Ex. C.) The same day, Garcia acknowledged the offer, and told Brach that a sales manager, Brad Sellenriek, “will start the process to get you set up.” (Id. ¶ 33, Ex. D.) That day, Sellenriek contacted Brach “regarding getting set up as a Energizer Distributor,” and said that he “look[ed] forward to getting set up” with Eminah. (Id. ¶ 34, Ex. E.)
Eminah “made clear on multiple occasions,” in writing and over the telephone, “that the deal would require Eminah to allocate funds, hire additional staff, and pass on other business opportunities.” (Id. ¶ 36, Ex. F.) On May 3, 2019, Garcia asked how Eminah wanted the Rayovac batteries packaged, and Brach provided instructions. (Id. ¶ 35, Ex. F.) Brach also wrote, “[A]lso please confirm that we have a done deal, so that [I] can focus on this and allocate the funds, since [I] am looking at a few larger deals now and if it is not a done deal [I] need to
As for the distributorship, on June 3, 2019, Sellenriek sent a price and product list, and asked Brach which items he would be purchasing in his first order. (Id. ¶ 41, Ex. H.) However, there was no progress in setting up Eminah as a distributor in the weeks that followed. (Id. ¶ 43.) Eminah expressed its concerns to Energizer Holdings employees, who “repeatedly acknowledged Eminah‘s efforts” concerning the Rayovac batteries and asked Eminah to remain patient. (Id. ¶ 44.) On July 16, 2019, Tracy Landes, a manager, emailed Brach, “I wanted to reach out and thank you for your partnership and patience. We really appreciate your business and all you have done to assist with our rechargeable battery excess stock position.” (Id. ¶ 45, Ex. I.)
On September 17, 2019, Garcia informed Brach that they would not supply an outstanding portion of the Rayovac batteries due to “strategy changes.” (Id. ¶ 46, Ex. J.) Energizer Holdings tried to “re-write” the agreement unilaterally, and said that it would only supply the batteries if Eminah agreed to new “terms and conditions.” (Id. ¶¶ 49-51.)
Energizer Holdings did not supply all of the batteries it agreed to supply, did not fulfill its agreement to set up Eminah as a distributor, and eventually stopped responding to the plaintiffs’ inquiries. (Id. ¶¶ 47-51.) Instead of working with the plaintiffs as agreed, the defendants
On August 28, 2019, the defendants’ counsel sent the plaintiffs a letter demanding that they remove all Energizer product listings from Amazon and other websites or online media, asserting that the plaintiffs’ sale of the products was “improper” because they were not authorized resellers, and threatening legal action or enforcement action against the plaintiffs. (Id. ¶¶ 98-101.) On September 16, 2019, the defendants’ counsel sent the plaintiffs a letter accusing them of tortious interference with a contract, and demanding that they cease and desist their unauthorized sale of Energizer products online. (Id. ¶¶ 107-08.) According to the plaintiffs, both letters were baseless and misstated the applicable law. (Id. ¶¶ 97, 102-06, 109-13.) On September 17, 2019, the plaintiffs, through counsel, informed the defendants that the claims in their letters lacked merit, and cautioned them that any attempts to interfere with the plaintiffs’ business relationships with online marketplaces would violate the law and result in legal action. (Id. ¶¶ 114-15.)
Despite these “warnings,” the defendants “began submitting false and defamatory reports to eBay,” through eBay‘s Verified Rights Owner Program (“VeRO“)—a “self-help tool” that allows intellеctual property rights owners to report intellectual property violations. (Id. ¶¶ 115-16.) Owners can submit reports using a “Notice of Copyright Infringement” (NOCI) form on eBay‘s site, which requires the owner to assert (1) ownership, and (2) a “good faith belief” that a listing constitutes infringement. (Id. ¶¶ 118-19.) Upon receipt of a NOCI, eBay “removes the allegedly infringing listing or content with little or no review of the validity of the complaint,” and notifies the seller. (Id. ¶ 120.)1 Each NOCI “places a ‘black mark’ on a seller‘s account,”
and “black marks can lead to account suspension.” (Id. ¶ 123.) eBay warns sellers that it can
On October 30, 2019, eBay sent the plaintiffs a notice stating that their “listing was reported by Energizer Brands, LLC for using their copyright or trademark materials without their permission;” the defendants reported to eBay that numerous listings were “using [the defendants‘] images without authorization.” (Id. ¶¶ 127-28.) The notice directed the plaintiffs to “remove and replace the images in your gallery and description that belong to the reporting rights owner” or face termination of the listings. (Id. ¶ 129.) The plaintiffs maintain that because they created the images “in many of the referenced product listings,” the use of those images did not violate the defendants’ rights. (Id. ¶ 130.) The plaintiffs contacted the defendants and asked them either to provide the basis for the report or submit a “retraction request” to eBay. The defendants did not respond. (Id. ¶ 134.)
The sаme day, eBay sent the plaintiffs a second notice informing them that their “listing was reported by Energizer Brands, LLC for offering shipping to other countries without their permission,” that eight eBay listings offered Energizer‘s “product in Europe, in violation of their intellectual property rights regarding parallel importation,” and that the plaintiffs “would face termination of these listings.” (Id. ¶¶ 135-37.) This report was false. (Id. ¶ 138.) The next day, the plaintiffs contacted the defendants and instructed them to submit a retraction request and cease filing false reports with eBay. The defendants did not respond. (Id. ¶ 144.)
To survive a motion to dismiss, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Pleadings must be construed in the light most favorable to the plaintiff. Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). A court reviewing a
DISCUSSION
I. Breach of Contract (Count I)
The plaintiffs claim that Energizer Holdings breached its agreement with Eminah, which called for: “(i) Energizer Holdings to supply, and Eminah to purchase the Rayovac Overstock; and (ii) Eminah to become a direct distributor of Energizer Products.” They claim that Energizer Holdings breached the agreement by refusing to provide the agreed number of Rayovac batteries, and by failing to set up Eminah as a distributor. (ECF No. 22 ¶¶ 149-60.)
The structure of the alleged agreement is unusual. Eminah agreed to purchase Rayovac overstock batteries from Energizer Holdings, and the emails between the parties specify the “essential terms” required for a contract for the sale of goods, including the price and quantity of the batteries, the time and manner of delivery and packaging details. (See id. ¶¶ 31, 35, 37, 39-
The defendants claim that the complaint does not establish a valid contract for two reasons: (1) the agreement is merely an “agreement to agree,” and is therefore unenforceable, and (2) it does not satisfy the statute of frauds. (ECF No. 24-8 at 16-20.) I reject these challenges and conclude that the plaintiffs’ claim is sufficient at this stage of the proceedings.
“There is a strong presumption against finding binding obligation in agreements which include open terms, call for future approvals and expressly anticipate future preparation and execution of contract documents.” Miller v. Tawil, 165 F. Supp. 2d 487, 492 (S.D.N.Y. 2001) (quoting Tchrs. Ins. & Annuity Ass‘n of Am. v. Tribune Co., 670 F. Supp. 491, 499 (S.D.N.Y. 1987)). However, “[w]here a preliminary agreement ‘expresses mutual commitment to a contract on agreed major terms, while recognizing the existence of open terms that remain to be negotiated, the agreement may be binding.‘” Kosher Provisions, Inc. v. Blue & White Food Prod. Corp., No. 04-CV-361, 2005 WL 1890039, at *3 (E.D.N.Y. Aug. 9, 2005) (quoting Tribune, Co., 670 F. Supp. at 498).
The defendants claim that the alleged contract does not include all material terms of the distributorship, and was therefore only an agreement to agree. They cite Computech Int‘l, Inc. v. Compaq Computer Corp., No. 02-CV-2628, 2002 WL 31398933 (S.D.N.Y. Oct. 24, 2002), in
The contract in Computech, however, was oral. In this case, the parties specified in emails that they had a “done deal,” and that Energizer had started setting Eminah up as a distributor; there is no suggestion that thеy were contemplating a subsequent written agreement. In addition, the email exchanges include key terms about Eminah‘s distributorship; the emails memorialize the agreement to “full product access, best pricing and terms,” and that Eminah would not offer the batteries in certain channels. The emails also state the nature of the agreement as a whole: that Eminah would purchase the entire lot of Rayovac overstock batteries at a higher price than it considered fair in exchange for becoming a distributor. (ECF No. 22 ¶¶ 30-41, Exs. B-H.) That there were additional forms to complete and price lists to review in placing specific orders does not render the agreement unenforceable. See Kosher Provisions, Inc., 2005 WL 1890039, at *3.
Under New York law, “a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker.”
The defendants claim that the email exchanges do not satisfy the Stаtute of Frauds because they do not include all the terms of the distributorship component of the agreement. The emails, however, contain sufficient details to satisfy the Statute of Frauds. As discussed above, they list the details of the Rayovac purchase, as well as key details of the distributorship, and memorialize the scope of the agreement.
Citing material not attached to the complaint, the defendants also argue that Eminah‘s subsequent rejection of terms of the distributorship bolsters their position that the initial terms were not sufficient. To buttress this argument, the defendants submitted five exhibits, three of which contain emails from the same email threads that the plaintiffs attached to their complaint,
Even if these emails are “integral” to the complaint, see Williams, 440 F. App‘x at 9, they do not undermine the plaintiffs’ allegations that the parties had decided on, and memorialized in writing, the essential terms of their agreement: Eminah would purchase a specific quantity of Rayovac batteries, and Energizer Holdings would make it a distributor. The emails could suggest that the defendants were not honoring their agreement to give Eminah competitive pricing, or that Eminah backed out of the distributorship. Either way, they do not show that the initial terms were insufficient under the Statute of Frauds.
In any event, the plaintiffs have sufficiently alleged that their partial performanсe would render the Statute of Frauds defense inapplicable. Partial performance removes some agreements from the ambit of the Statute of Frauds if the performance is “unequivocally referable” to the agreement.2 See Fisher Sci. Co. L.L.C. v. Ortho-Clinical Diagnostics, Inc., No.
II. Unjust Enrichment (Count II)
To establish unjust enrichment, a plaintiff must show “(1) that the defendant benefitted; (2) at the plaintiffs expense; and (3) that equity and good conscience require restitutiоn.” Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of New Jersey, Inc., 448 F.3d 573, 586 (2d Cir. 2006) (citation and quotation marks omitted). The plaintiffs allege that they paid, and Energizer accepted and retained, $230,000—a higher price than the plaintiffs considered fair for the batteries alone—so that Eminah would become a distributor. The plaintiffs have adequately alleged that the overpayment on the batteries is a benefit that the defendants received at the plaintiffs’ expense that requires restitution.
III. Fraudulent Inducement (Count III)
A party pleads a fraudulent inducement claim by alleging “(i) a material misrepresentation of a presently existing or past fact; (ii) an intent to deceive; (iii) reasonable reliance on the misrepresentation by appellants; and (iv) resulting damages.” Ipcon Collections LLC v. Costco Wholesale Corp., 698 F.3d 58, 62 (2d Cir. 2012) (citation and quotation marks omitted). In addition,
The plaintiffs’ fraudulent inducement claim is based on allegedly false representations by Stein, Garcia and Landes representing that Energizer Holdings would set up Eminah as a distributor. (See ECF No. 22 ¶¶ 167-74.) In other words, the plaintiffs allege that the defendants falsely represented that they would abide by thе contract. In their opposition, the plaintiffs claim that Garcia also misrepresented the available inventory of the batteries and the shipment schedule, but these statements concern whether the defendants intended to supply the Rayovac batteries as agreed under the contract.3 Accordingly, these are not “collateral” representations sufficient to state a fraudulent inducement claim, and this claim is dismissed. See Nat‘l Union Fire Ins. Co. of Pittsburgh, PA v. Monarch Payroll, Inc., No. 15-CV-3642, 2016 WL 634083, at *4 (S.D.N.Y. Feb. 17, 2016) (“A present intent to deceive must be alleged and a mere misrepresentation of an intention to perform under the contract is insufficient to allege fraud.“) (citation and quotation marks omitted).
The plaintiffs’ Lanham Act claim is based on the defendants’ submission of false infringement reports to eBay. (See ECF No. 22 ¶¶ 175-95.) The Lanham Act provides that:
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person‘s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
The defendants claim that Count IV must be dismissed because the plaintiffs have not alleged that eBay or Energizer shared the infringement reports, or that the reports were otherwise disseminated to customers in any way. (ECF No. 24-8 at 23-24.) The plaintiffs respond that they adequately pled dissemination by alleging that the “false reports directly resulted in the
The complaint alleges that the defendants made these reports to “advance their business interests by removing [the] [p]laintiffs’ listings and listing content from the eBay marketplace,” that eBay‘s typical process upon receipt of a NOCI is to remove the allegedly infringing listing or content, and that, in this instance, eBay asked the plaintiffs to remove infringing content in response to the defendants’ complaints. (ECF No. 22 ¶¶ 120, 129, 136, 181.) It does not allege that eBay removed the plaintiffs listings, but does state that the defendants’ actions “caused the removal” of unspecified “listing content.” (See id. ¶ 214.) The plaintiffs’ theory is that because “еBay educates its users that product listings and listing content removals occur due to a request from a rights owner,” the defendants’ reports were therefore “disseminated . . . to all of [the] [p]laintiffs’ actual or potential customers that visited [their] eBay product listing pages for Energizer products.” (See id. ¶¶ 183-84.)
The plaintiffs’ conclusory allegations about the chain of dissemination are insufficient to withstand the motion to dismiss. They do not sufficiently allege that removal of content from a listing results in a dissemination to customers of private complaints; indeed, the complaint does not allege which content was removed.4
The plaintiffs cite cases in which courts declined to dismiss Lanham Act claims based on infringement reports made to online marketplaces. See Garmon Corp. v. Vetnique Labs, LLC, No. 19-CV-8521, 2020 WL 3414983, at *6 (N.D. Ill. June 22, 2020) (allegations that the defendant “falsely told Amazon—its intended audience—that the plaintiffs had infringed [a]
V. Unfair Competition under New York Law (Count V)
For the same reasons, the plaintiffs’ state law unfair competition claim is also dismissed. See Weight Watchers Int‘l, Inc. v. Noom, Inc., 403 F. Supp. 3d 361, 381 (S.D.N.Y. 2019) (“For the reasons already explained as to the Lanham Act trademark and unfair competition claims, thе Complaint‘s common-law unfair competition claim is dismissed in its entirety.“); GeigTech E. Bay LLC v. Lutron Elecs. Co., No. 18-CV-5290, 2019 WL 1768965, at *11 (S.D.N.Y. Apr. 4, 2019) (“Because the Court has found Lutron‘s [Lanham Act false advertising claim] to be wanting, so too must the Court dismiss its cause of action for unfair competition [under state law].“); Ebony Media Operations, LLC v. Univision Commc‘ns Inc., No. 18-CV-11434, 2019 WL 8405265, at *6 (S.D.N.Y. June 3, 2019) (“Plaintiff‘s state law claims are dismissed for the same reasons.“) (citing Yankee Pub. Inc. v. News Am. Pub. Inc., 809 F. Supp. 267, 282 (S.D.N.Y. 1992) (finding that the “same First Amendment considerations that limit a cause of action under the Lanham Act apply also to a cause of action under New York law“)).
VI. Tortious Interference (Count VI)
The plaintiffs allege claims for tortious interference with respect to their contract and business relationship with eBay. (ECF No. 22 ¶¶ 204-19.) Under New York law, the elements of a claim for tortious interference with contract are “[1] the existence of a valid contract between the plaintiff and a third party, [2] defendant‘s knowledge of that contract, [3] defendant‘s intentional procurement of the third-party‘s breach of the contract without justification, [4] actual breach of the contract, and [5] damages resulting therefrom.” Rich v. Fox News Network, LLC, 939 F.3d 112, 126-27 (2d Cir. 2019) (quoting Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413 (1996)) (internal quotation marks omitted). The plaintiffs’ tortious interference with contract claim is dismissed because the plaintiffs do not allege any actual breach of their contract with eBay.
To allege tortious interference with a business relationship, a “plaintiff must allege that (1) it had a business relationship with a third party; (2) the defendant knew of that relationship and intentionally interfered with it; (3) the defendant acted solely out of malice, or used dishonest, unfair, or improper means; and (4) the defendant‘s interference caused injury to the relationship.” Kirch v. Liberty Media Corp., 449 F.3d 388, 400 (2d Cir. 2006) (citation and quotation marks omitted). The defendants argue that this claim must be dismissed because the complaint does not allege any injury to the plaintiffs’ relationship with eBay. (ECF No. 24-8 at 26.) In response, the plaintiffs cite their allegations that the defendants’ actions caused the
The plaintiffs do not sufficiently allege an injury to their relationship with eBay for the purpose of stating a tortious interference claim. The plaintiffs’ conclusory allеgation that the defendants’ “actions interfered with [the] [p]laintiffs’ business relationship with eBay” does not say how the relationship with eBay was damaged, nor do their allegations about what happened to their accounts. See RFP LLC v. SCVNGR, Inc., 788 F. Supp. 2d 191, 198-99 (S.D.N.Y. 2011) (“SCVNGR‘s only allegation as to injury was that [a third party] removed the Mark from the promotional material it controlled and requested that SCVNGR do the same. Rather than causing a breakdown in the business relationship between Bremer and SCVNGR, the Counter-Defendants’ interference left the underlying relationship undisturbed. . . . The allegations are therefore insufficient to support the injury element of the tortious interference claim.“); Radiancy, Inc. v. Viatek Consumer Prod. Grp., Inc., 138 F. Supp. 3d 303, 328 (S.D.N.Y. 2014), as amended (Apr. 1, 2014) (“ShopNBC sold Viatek‘s product on its website, evidencing that there was a relationship between the two entities. . . . Radiancy clearly knew the relationship existed because it sent a letter to ShopNBC to inform it that Viatek‘s product was infringing Radiancy‘s patent. . . . Viatek does not allege in its Counterclaims that the actions taken by Radiancy caused the end of the business relationship that it enjoyed with ShopNBC. . . . Absent allegations that Radiancy‘s conduct caused the deterioration of the business relationship between Viatek and ShopNBC, Viatek‘s claim for tortious interference fails.“).
VII. Defamation (Count VII)
“Under New York law a defamation plaintiff must establish five elements: (1) a written defamatory statement of and concerning the plaintiff, (2) publication to a third party, (3) fault,
The defendant moves to dismiss this claim on four grounds: (1) there are “no allegations of public exposure to the VeRO reports,” (2) eBay was not induced into an “evil opinion” of the plaintiffs, (3) the plaintiffs do not plead facts that show that the statements were false, and (4) there is a “lack of alleged harm.” (ECF No. 24-8 at 26-27.) I conclude that the plaintiffs’ claim withstands these challenges.
First, “public exposure” is not required to state a defamation claim; publication to a third party, in this case eBay, is sufficient. See Albert v. Loksen, 239 F.3d 256, 269 (2d Cir. 2001) (“Under New York defamation law, ‘publication is a term of art . . . A defamatory writing is not published if it is read by no one but the one defamed. Published it is, howevеr, as soon as read by any one else.‘“) (quoting Ostrowe v. Lee, 256 N.Y. 36, 38, (1931) (Cardozo, C.J.)).
Second, the defendants’ argument that eBay was not “induced into an ‘evil opinion‘” of the plaintiffs appears to be based on eBay‘s actual reaction, not on whether the statements are defamatory. Even if eBay did not have an “evil opinion” of the plaintiffs, “[a] statement about a business is defamatory if it imputes to the business some form of fraud or misconduct or a general unfitness, incapacity, or inability to perform its duties.” C=Holdings B.V. v. Asiarim Corp., 992 F. Supp. 2d 223, 244 (S.D.N.Y. 2013) (citation, quotation marks and alterations omitted). Here, the plaintiffs allege that the defendants falsely claimed that the plaintiffs were committing trademark infringement. See Mintz v. Mktg. Cohorts, LLC, No. 18-CV-4159, 2019 WL 3337896, at *6 (E.D.N.Y. July 25, 2019) (statements alleging that someone is “a thief who stole their work” are “likely actionable“); GeigTech E. Bay LLC, 2019 WL 1768965, at *9 (statements that “Lutron did not invest the time, effort, and resources necessary to innovate its
Third, the plaintiffs have adequately pled the falsity of the statements; indeed, their main contention is that the infringement claims were false, and they explain why the complaints lacked a basis in law and fact. See Id. (“As should be readily clear to the parties by now, Lutron‘s core contention is that Geigtech and Geiger lied. They purportedly did not believe that Lutron was engaged in patent infringement, they had reason to know Lutron was not engaged in patent infringement, and they . . . proliferate[d] the allegedly defamatory message that Lutron was engaged in patent infringement.“).
Finally, the defendants’ “lack of harm” claim does not address the plaintiffs’ allegations of defamation per se. See Mintz, 2019 WL 3337896, at *6 (“[The plaintiff] sufficiently alleges defamation per se because the relevant statements tend to injure [her] in . . . her trade, business or profession . . . by imputing to [her] a kind of fraud, dishonesty, and misconduct in her business.“) (citations, quotation marks and alterations omitted).
VIII. Trade Libel (Count VIII)
“Under New York law, trade libel or product disparagement is an action to recover for words or conduct which tend to disparage or negatively reflect upon the conditiоn, value or quality of a product or property. To state a claim for trade libel, a plaintiff must adequately plead (1) falsity of the statement, (2) publication to a third person, (3) malice (express or implied), and (4) special damages.” Enigma Software Grp. USA, LLC v. Bleeping Computer LLC, 194 F. Supp. 3d 263, 291 (S.D.N.Y. 2016) (citations, quotation marks and alterations omitted).
For the reasons stated above, I grant in part and deny in part the defendants’ motion to dismiss the second amended complaint. Counts III, IV, V, VI and VIII of the second amended complaint are dismissed.
SO ORDERED.
s/Ann M. Donnelly
ANN M. DONNELLY
United States District Judge
Dated: Brooklyn, New York
March 31, 2021
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