FRAGRANCENET.COM, INC., Plaintiff,
v.
FRAGRANCEX.COM, INC., Defendant.
United States District Court, E.D. New York.
*314 Robert L. Sherman and Bradford E. Young of Paul, Hastings, Janofsky, & Walker, LLP, New York, NY, for plaintiff.
John W. Dozier, Jr. and Cameron W. Gilbert of Dozier Internet Law, P.C., Glen Allen, VA, for defendant.
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge:
Plaintiff FragranceNet.com, Inc. (hereinafter "plaintiff" or "FragranceNet") brings this action against defendant FragranceX.com, Inc. (hereinafter "defendant" or "FragranceX") alleging that defendant's use of plaintiff's photographs and trademarks constitutes copyright infringement, trademark infringement, trademark dilution, violation of New York General Business Law § 133, state law dilution, injury to business reputation, common law unfair competition and misappropriation, passing off, and unjust enrichment.
Presently before the Court is defendant's motion to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Specifically, defendant contends (1) that FragranceNet cannot bring a claim for copyright infringement against defendant because the photographic images of products on FragranceNet's website are not entitled to copyright protection, and (2) FragranceNet cannot bring trademark-related claims against defendant because FragranceNet does not have enforceable rights to the trademarks "FRAGRANCENET" and "FRAGRANCENET.COM." For the reasons set forth below, the Court concludes that plaintiff has asserted plausible claims under the copyright and trademark laws that survive a motion to dismiss. Accordingly, defendant's motion is denied in its entirety.
I. BACKGROUND
A. Facts
For purposes of this motion to dismiss, the Court has taken the facts described below from the plaintiff's third amended complaint ("Compl."). These facts are not findings of fact by the Court but rather are assumed to be true for the purpose of deciding this motion and are construed in a light most favorable to plaintiffs, the nonmoving parties. See LaFaro v. N.Y. Cardiothoracic Group,
Plaintiff FragranceNet is a Delaware corporation with its principal place of business in Hauppauge, New York. (Compl. ¶ 6.) Since January 1997, plaintiff has owned and operated an online retail store that sells perfume and related products *315 at www.fragrancenet.com. (Id. ¶¶ 2, 11.) Defendant FragranceX is a New York corporation with its principal place of business in Long Island City, New York. (Id. ¶ 7.) Defendant sells perfume online at its website, www.fragranceX.com. (Id. ¶ 16.) The instant action arises out of defendant's alleged misappropriation and use of more than nine-hundred copyrighted images from plaintiff's website and defendant's alleged use of plaintiff's trademarks in defendant's website's metatags and in connection with Google's AdWords program. (Id. ¶ 2.) Plaintiff seeks preliminary and permanent injunctive relief, as well as compensatory and punitive damages based on defendant's actions. (Id. ¶ 4.)
According to the complaint, plaintiff has created hundreds of images of the products that it offers for sale, which are displayed on its website so that consumers can see visual images of the products. (Id. ¶¶ 12, 13.) The "background, arrangement, lighting, use of shadow, angle, and selection of products within each line to be included within the images are among the original elements contributing to the [i]mages." (Id.) FragranceNet owns and has owned the copyrights to these images at all relevant times. (Id. ¶¶ 14-15.) The complaint alleges that defendant copied more than nine hundred of these copyrighted images from FragranceNet's website, and posted them on its own website. (Id. ¶ 16.) Plaintiff attaches to its complaint screenshots depicting its own images side-by-side with copies of defendant's allegedly infringing images. (Compl. Ex. B.) According to the complaint, FragranceNet informed defendant that defendant's actions were infringing FragranceNet's copyrights, and FragranceNet sent several cease-and-desist letters to defendant, but defendant did not discontinue its use of the images. (Compl.¶¶ 17, 18.) Accordingly, plaintiff's complaint contains a cause of action for copyright infringement.
Plaintiff also owns the registrations for the trademarks FRAGRANCENET and FRAGRANCENET.COM, and plaintiff has used those marks in connection with its sale and marketing of perfume and related products online since January 27, 1997. (Id. ¶¶ 31, 34.) The marks were first registered by Telescents, Inc., a subsidiary of FragranceNet. These marks were assigned to plaintiff on May 28, 2009. (Def.'s Brief Ex. H.) The assignment included the "right to commence an action for past or future infringements." (Id.)
The complaint alleges that plaintiff has marketed and promoted its services under these marks in national magazines, newspaper inserts, direct mailings, and other advertising venues. (Compl. ¶¶ 32, 35.) Plaintiff has sold millions of dollars of merchandise through its website, which accepts orders directly from customers. (Id. ¶ 33.) Over the past twelve years of operation, plaintiff has established a reputation for high-quality retail sales and customer services under its marks. (Id. ¶ 37.) There is customer recognition of these marks, and the marks have acquired a substantial level of goodwill. (Id.)
The complaint alleges that defendant inserted plaintiff's trademarks, "FRAGRANCENET" and "FRAGRANCENET.COM" into the metatags on defendant's website. (Id. ¶ 21.) This action causes defendant's website to appear as a search result when a user searches plaintiff's trademarks in an internet search engine. (Id.) The complaint also alleges that defendant has bid on, purchased, and used certain keywords, including plaintiff's trademarks, in Google's AdWords program, with the knowledge that doing so would result in defendant's links appearing as "Sponsored Links" when a *316 consumer types "FRAGRANCENET," "FRAGRANCENET.COM" or other variations of FragranceNet's mark into an internet keyword search on Google. (Id. ¶ 22.) The AdWords Program by Google allows advertisers to bid on particular keywords that apply to their websites. (Id.) Advertisers may specify whether keywords should be applied as a "broad match," "phrase match," "exact match," or "negative match." When an advertiser bids on a "broad match," its link will appear when a search is conducted for that keyword, any of its plural forms, synonyms, or phrases similar to the word. (Id. ¶ 24.) When an advertiser bids on a "phrase match," its link will appear when a user searches for a particular phrase, even if that phrase is used in combination with other words. (Id. ¶ 25.) An "exact match" will display the advertiser's link only when the exact phrase bid on is searched on Google. (Id. ¶ 26.) A "negative match" bid allows an advertiser to ensure that its link does not appear when certain terms are searched. (Id. ¶ 27.) Sponsored Links appear on the top and right side of the search results screen. (Id. ¶ 22.)
According to the complaint, defendant bid on certain keywords, including plaintiff's trademarks, to cause its links to appear as "Sponsored Links" on Google when a search for "FRAGRANCENET" or other variations of plaintiff's mark are performed. (Id. ¶¶ 22, 28.) As a result, defendant's links appear on the top and right side of the search results screen when searches for plaintiff's trademarks are performed. (Id.)
The complaint alleges that plaintiff demanded that defendant discontinue all further use of its marks and asked that defendant bid on plaintiff's mark as a "negative match" to prevent defendant's links from appearing as results when plaintiff's marks were searched on Google. (Id. ¶ 29.) According to the complaint, defendant knew that its use of plaintiff's trademarks in the AdWords program would result in consumers being "misdirected" to defendant's website instead of plaintiff's website, but defendant continued to use plaintiff's trademarks without permission. (Id. ¶ 39.) The complaint further alleges that defendant reasonably expected to receive revenue from interstate or international commerce from this use of plaintiff's trademarks. (Id. ¶ 40.) The complaint claims that this practice has caused confusion among consumers and has deprived FragranceNet of opportunities to expand its goodwill; the complaint alleges that plaintiff has suffered irreparable harm as a result of defendant's use of its trademarks. (Id. ¶¶ 41-46.)
B. Procedural History
On July 31, 2009, plaintiff filed its third amended complaint against defendant in this action. By letter dated August 11, 2009, defendant indicated its intention to move for dismissal of the complaint for failure to state a cause of action upon which relief can be granted. A pre-motion conference was held on August 20, 2009. On September 21, 2009, defendant filed its motion. Plaintiff filed opposition papers on October 21, 2009, and defendant filed its reply on November 9, 2009. Oral argument was heard on December 11, 2009. Defendant submitted a supplemental letter brief on December 23, 2009. Plaintiff responded on January 11, 2010. The Court has fully considered the submissions of the parties.
II. STANDARD OF REVIEW
In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in *317 favor of the plaintiff. See Cleveland v. Caplaw Enters.,
The Supreme Court recently clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth a two-pronged approach for courts deciding a motion to dismiss. ___ U.S. ___,
The Court notes that in adjudicating this motion, it is entitled to consider: "(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents `integral' to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence." In re Merrill Lynch & Co.,
III. DISCUSSION
A. Copyright Infringement
Defendant argues that the claim for copyright infringement in plaintiff's third amended complaint should be dismissed on two grounds: (1) the images at issue do *318 not possess the requisite level of originality to be copyrightable as a matter of law; and (2) the images at issue are nothing but photographs of third-parties' intellectual property without any additional creative elements and, accordingly, are not copyrightable. The Court addresses each of these arguments in turn.
1. Originality of the Copyrighted Images
Defendant first argues that plaintiff's images do not possess the requisite "creative or expressive elements" required to be copyrightable as a matter of law. Defendant does not argue that plaintiff's pleadings are insufficient on their face; rather, defendant argues that plaintiff does not have a protectable copyright and, therefore, cannot bring the copyright claim alleged in the complaint against defendant in the first place. For the reasons set forth below, the Court is unable to rule on the originality of the copyrighted images at this juncture and finds that plaintiff has adequately stated a plausible claim for copyright infringement that survives a motion to dismiss.
In order to bring a claim for copyright infringement, a plaintiff must establish that (1) plaintiff owns a valid copyright and (2) defendant copied "constituent elements of the work that are original." Boisson v. Banian, Ltd.,
In order to receive protection under the copyright laws, a work must be original. Boisson,
"To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable."
Feist,
The Copyright Act extends copyright protection to pictorial and graphic works. 17 U.S.C. § 102(a)(5). Accordingly, pictorial and graphic works may be copyrighted as long as they possess the requisite originality for copyrightable works. "Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved." Rogers v. Koons,
The Copyright Act provides that a "certificate of [copyright] registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright." 17 U.S.C. § 410(c).[1] Accordingly, a registered copyright for an image serves as prima facie evidence of both the validity of the copyright and the originality of the work. Boisson,
Defendant's arguments that plaintiff's copyrighted images lack sufficient originality to be copyrightable are not persuasive at this juncture. First, the copyright registration of each of plaintiff's images affords those images a presumption of originality. To rebut that presumption, defendant must present evidence that clearly demonstrates that plaintiff's images lack *320 originality. However, this determination of whether plaintiff's images are sufficiently original to be copyrighted is a factual issue that is inappropriate for determination on a motion to dismiss given the allegations in this case. Id. ("Typically, `[w]hen the originality of a copyrighted work is at issue, it becomes a question of fact for the jury to resolve.'" (quoting Tin Pan Apple, Inc. v. Miller Brewing Co., No. 88 Civ. 4085(CSH),
As discussed above, the requirements for originality are "modest." Weissmann v. Freeman,
Although plaintiff submitted a declaration from its photographer regarding the process involved in creating these images, this declaration may not be considered by the Court on a motion to dismiss. See, e.g., Coggins v. County of Nassau, No. 07-CV-3624 (JFB)(AKT),
Defendant cites Oriental Art Printing, Inc. v. Goldstar Printing Corp.,
Defendant's reliance on Custom Dynamics, LLC v. Radiantz LED Lighting, Inc.,
2. Photographs of Third-Parties' Intellectual Property
Defendant next argues that the images at issue in this case are per se not copyrightable as a matter of law because they are mere photographs of third-parties' intellectual property. Defendant argues that photographs of another's intellectual property must "contain some substantial, not merely trivial originality." (Def.'s Brief at 11.) Accordingly, defendant contends that the images on plaintiff's website are "derivative works," works based upon one or more preexisting copyrighted works, see 17 U.S.C. § 101, and are subject to a higher standard of originality than original works. Thus, defendant asserts that the images used by plaintiff on its website are not sufficiently original to qualify as derivative works of the original perfume bottles and boxes themselves.[3]
The Copyright Act specifically grants protection to derivative works. 17 U.S.C. *323 § 103(a)-(b). Such protection extends "to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work and does not imply any exclusive right in the preexisting material." Id. Thus, to be copyrightable, a derivative work must contain original elements that make the derivative work distinct from its original work. See id. This Court is unable to locate any rule of law (and the defendant provides no citations supporting its claim) that photographs of third-parties' intellectual property are per se not copyrightable. In fact, based upon a review of the Copyright Act and relevant case authority, this Court rejects defendant's attempt to create such a per se rule. Instead, the cases make clear that, with regard to photographs, "a copyright derives from the photographer's original conception of his subject, not the subject itself. Protectable elements may include posing the subjects, lighting, angle, selection of film and camera, [and] evoking the desired expression, along with other variants." Kaplan,
[t]he notion that photographs merely reproduce reality, and do not apply a creative, or even distorting, eye to the events is long discredited. The photographer selects the image to be reproduced, capturing a particular angle of view, and that image conveys, in the case of plaintiffs' creations, at best a partial, two-dimensional impression of the actual work . . . . Viewfinder has not copied plaintiffs' dresses; it has displayed a particular depiction of them.
Sarl Louis Feraud Intern. v. Viewfinder Inc.,
The Court does note, however, that images of a third-party's intellectual property may receive less protection than a completely original work. Such minimal protection would not afford the registrant of the copyright protection against all subsequent depictions of the same subject matter. Rather, the protection is against a precise re-creation or copying of the registrant's work:
While plaintiff's photographs meet the minimal originality requirements in Feist, they are not entitled to broad copyright protection. Plaintiff cannot prevent others from photographing the same frames, or using the same lighting techniques . . . . What makes plaintiff's photographs original is the totality of the precise lighting selection, angle of the camera, lens and filter selection. In sum, plaintiff is granted copyright protection only for its `incremental contribution.' Practically, the plaintiff's works are only protected from verbatim copying. However, that is precisely what defendants did.
SHL Imaging,
Defendant further argues that, as derivative works, the images at issue are subject to a higher standard of originality that they are unable to meet as a matter of law. The determination of the originality of a derivative work is a factual question that is inappropriate for determination on a motion to dismiss under the circumstances of this case. Woods v. Bourne Co.,
The Court must examine each photograph as a whole before determining whether the photograph contains sufficient originality to be copyrightable. Each of the images at issue here was registered by plaintiff; accordingly, the burden is on defendant to rebut the presumption of originality that attaches to each of these images. As discussed above, this finding and weighing of facts is an inappropriate inquiry for the Court to make on a motion to dismiss in this case.[4] "The court's function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Festa v. Local 3 Int'l Bhd. of Elec. Workers,
B. Trademark-Related Claims turn.
Defendant also alleges that FragranceNet cannot prevail on its trademark-related claims because FragranceNet does not have enforceable rights to a valid trademark. Specifically, defendant argues that (1) FragranceNet did not have any enforceable rights to the "FRAGRANCENET" or "FRAGRANCENET.COM" trademarks at the time of defendant's alleged infringement; and (2) FragranceNet does not presently have enforceable rights to its trademarks. The Court addresses each of these arguments in turn.
1. Enforceability of Plaintiff's Trademark at Time of Infringement
Defendant argues that plaintiff did not have enforceable rights to the trademarks "FRAGRANCENET" and "FRAGRANCENET.COM" during the time of defendant's alleged infringement. According to defendant, another entity, Telescents, was using the trademarks during that period, and FragranceNet did not own, was not an assignor, and was not an exclusive licensee of the trademarks. In support of its assertions, defendant attaches to its motion a declaration submitted to the U.S. Patent and Trademark Office by Dennis M. Apfel, the CEO of TeleScents, Inc. That declaration includes the following statements:
"The declaration is submitted to set forth the salient facts and demonstrate the enormous visibility and consumer awareness of [Telescents'] trademark FRAGRANCENET used on [Telescents'] *326 Web site for on-line retail store services in the fields of perfumery, aromatherapy, candles and hair care preparations." (Def.'s Brief Ex. G ¶ 2.)
"The consuming public . . . has come to recognize FRAGRANCENET as identifying the source of [Telescents'] retail services." (Id. ¶ 14.)
"[Telescents] has spent more than Ten Million ($10,000,000) Dollars in advertising that features, among other things, the subject mark FRAGRANCENET." (Id. ¶ 4.)
"In the past year alone [Telescents] produced a 30-second and 60-second television commercial that has aired more than 1,400 times across the country . . . ." (Id. ¶ 5.)
Telescents "has printed and distributed free standing inserts, in the last year alone, in Sunday newspaper and other print media across the country, totaling more than one hundred seventy million (170,000,000)," "advertises on all the major search engines," and "has a program involving more than 25,000 affiliates that display [Telescents'] banner on their Web sites." (Id. ¶¶ 6-8.)
As a result of the assertions in this declaration, defendant alleges that FragranceNet neither used nor owned the marks "FRAGRANCENET" and "FRAGRANCENET.COM" since 1997 because these marks were used and owned by Telescents. Defendant also argues that, during the relevant period of FragranceX's alleged infringement, FragranceNet was not an assignee or an exclusive licensee of the "FRAGRANCENET" or "FRAGRANCENET.COM" marks.
As a preliminary matter, in previously deciding that plaintiff's motion to amend its complaint would not be futile, the Court rejected defendant's arguments regarding the registration of the plaintiff's trademarks under the motion to dismiss standard:
The argument regarding the registration of the mark or the assignment of the mark . . . under the motion to dismiss standard are not a basis for not allowing these claims to go forward, at least to the summary judgment stage. Trademarks can be assigned. So . . . the fact that there was an assignment doesn't mean there can be no claim. As [plaintiff's] counsel also pointed out, there can be claims even independent of the registration of the mark simply by use of the mark. So some of the claims can proceed on that basis, as well. And, in fact, trademark registration is not even a requirement under Section 43(a) of the Lanham Act for all types of claims under that section. So all of the issues regarding the registration of the mark . . . can be litigated if the facts suggest at the summary judgment stage . . . .
Transcript of Oral Argument and Decision in FragranceNet, Inc. v. FragranceX.com, No. 06-CV-2225(JFB)(AKT) (E.D.N.Y. July 21, 2009), at 46:25-47:20; 48:04-06. To the extent that defendant attempts to reargue those points that it raised in unsuccessfully opposing the motion to amend, this Court reiterates that these issues cannot be decided at the motion to dismiss stage in this case. "`When a court has ruled on an issue, that decision should generally be adhered to by that court in subsequent stages in the same case.'" United States v. Crowley,
The only case cited by defendant in support of its argument that plaintiff does not have an enforceable trademark is Hertz Corp. v. Knickerbocker,
2. Enforceability of Plaintiff's Trademark at Present
Defendant next argues that plaintiff does not possess an enforceable trademark at present because the assignment of Telescents' trademarks to FragranceNet was champertous. Defendant argues that this is demonstrated by the fact that the assignment of the trademarks was executed one day prior to plaintiff's motion to amend its second complaint, and by the fact that this assignment included the "right to commence an action for past or future infringements." (Def.'s Brief Ex. H.)
New York Judiciary Law § 489 provides that:
no corporation or association, directly or indirectly, itself or by or through its officers, agents or employees, shall solicit, buy or take an assignment of, or be in any manner interested in buying or taking an assignment of a bond, promissory note, bill of exchange, book debt, or other thing in action, or any claim or demand, with the intent and for the purpose of bringing an action or proceeding thereon. . . .
The New York champerty statute is only violated if the "primary purpose of the purchase or taking by assignment of the thing in action" is to bring a lawsuit thereon. Sprung v. Jaffe,
If FragranceNet had a preexisting proprietary interest in the use of the trademarks, and acquired the right to enforce its interest in the trademark, the assignment thereof is not champertous. See Trust for the Certificate Holders of Merrill Lynch Mortgage Investors, Inc. v. Love Funding Corp.,
IV. CONCLUSION
For the foregoing reasons, defendant's motion to dismiss is denied. Defendant is directed to file an answer within twenty days of this Memorandum and Order, and the parties are directed to continue with discovery in accordance with the direction of Magistrate Judge Tomlinson.
SO ORDERED.
NOTES
Notes
[1] The second element, actual copying of the plaintiff's work, is not at issue at this stage. Plaintiff alleges that defendant copied the images at issue off plaintiff's website. Defendant does not deny copying the photographs but argues that it may legally copy those images because they do not possess the requisite originality to be copyrightable as a matter of law.
[2] Likewise, in Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc.,
The Meshwerks court also relies on the reasoning in a Ninth Circuit case, Ets-Hokin v. Skyy Spirits, Inc.,
FragranceX's citation to another non-binding case, ATC Distribution Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc.,
[3] As a threshold matter, the Court notes that defendant has failed to assert or offer any evidence that the perfume bottles that are the subjects of the images in question are copyrighted. Moreover, the Court notes that courts are split on whether photographs of a copyrighted work are properly considered derivative works. See Sarl Louis Feraud Int'l v. Viewfinder, Inc.,
[4] Plaintiff also correctly notes that, to the extent the defendant appears to argue that plaintiff's images serve utilitarian functions and, thus, are not copyrightable, this argument is incorrect. The Copyright Act defines "useful articles" as those articles "having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." 17 U.S.C. § 101 (emphasis added). These images are not useful articles because their "function," as alleged by defendant, is to portray the appearance of the perfume bottles or to convey information about the products for sale. See Major v. Sony Music Entm't, Inc., No. 92 Civ. 2826(PKL),
The Court further notes that the proposed commercial use of the images has no bearing on their copyrightability. Bleistein,
[5] The Court's holding is also supported by the opinion recently issued by the Seventh Circuit in Schrock v. Learning Curve International, Inc.,
[6] The Court notes that "[a] court's reconsideration of its own earlier decision in a case may, however, be justified in compelling circumstances, consisting principally of (1) an intervening change in controlling law, (2) new evidence, or (3) the need to correct a clear error of law or to prevent manifest injustice." United States v. Carr,
[7] The plaintiff also correctly notes that a trademark registration is not required to state all trademark-related claims under the Lanham Act. Under the Lanham Act, an action for false designation of origin or false descriptions may be commenced by any person with a commercial interest who is "likely to be damaged" by another's use of a mark that is likely to cause confusion. 15 U.S.C. § 1125(a) (permitting actions for false designation of origin or false descriptions "by any person who believes that he or she is or is likely to be damaged by such act"); Colligan v. Activities Club of N.Y., Ltd.,
[8] In an attempt to avoid further litigation over the standing issue, plaintiff has requested that it be permitted to add Telescents, Inc. as a party to this litigation. Federal Rule of Civil Procedure 20(a)(1) permits the joinder of plaintiffs if:
(A) the [plaintiffs] assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
Fed.R.Civ.P. 20(a). "Rule 20(a) is designed to encourage joinder so long as such joinder would be `consistent with fairness to the parties.'" Wilson v. Toussie, No. 01-CV-4568(DRH)(WDW),
[9] The Court further notes that defendant's champerty claim must overcome an additional hurdle because New York Judiciary Law § 489 has been interpreted by New York courts to only preclude the "acquisition of a cause of action by a stranger to the underlying dispute . . . in consideration of a bargain for some part of the thing involved." Richbell Info. Servs., Inc. v. Jupiter Partners,