Jonathan TASINI, Molly Secours, Tara Dublin, Richard Laermer, Billy Altman, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. AOL, INC., Thehuffingtonpost.Com, Inc., Arianna Huffington, Kenneth Lerer, Defendants-Appellees.
No. 12-1428-cv.
United States Court of Appeals, Second Circuit.
Dec. 12, 2012.
505 Fed. App‘x 45
CONCLUSION
We have considered all of Amna‘s arguments and find them to be without merit. Accordingly, we AFFIRM the October 3, 2011 judgment of the District Court.
Thomas G. Hentoff (David E. Kendall, Jessica L. Pahl, on the brief), Williams & Connolly LLP, Washington, DC, for Defendants-Appellees.
PRESENT: JOSÉ A. CABRANES and REENA RAGGI, Circuit Judges, and JED S. RAKOFF, Judge.*
SUMMARY ORDER
Plaintiffs Jonathan Tasini, Molly Secours, Tara Dublin, Richard Laermer, and Billy Altman appeal from a judgment of the District Court dismissing their claims against Defendants AOL, Inc., TheHuffingtonPost.com, Arianna Huffington, and Kenneth Lerer (jointly, “The Huffington Post“), pursuant to
BACKGROUND
The plaintiffs’ Amended Complaint contains the following essential factual allegations, which we accept as true for the purposes of this appeal from the District Court‘s order granting a motion to dismiss. Hess v. Cohen & Slamowitz LLP, 637 F.3d 117, 119 (2d Cir. 2011). The Huffington Post is a popular website, which launched as a for-profit enterprise on May 9, 2005. Plaintiffs are online essayists, or “bloggers” in the vernacular, who have provided “content” to The Huffington Post in exchange for exposure for their work. Though The Huffington Post generates revenue through advertising, it has never paid, nor promised to pay, plaintiffs for their submissions in any way other than through the promotion that comes along with having work published on The Huffington Post.
In early 2011, AOL, Inc. (“AOL“) purchased The Huffington Post for approximately $315 million. According to plaintiffs, $105 million of that value was created by the content they submitted to The Huffington Post. Plaintiffs brought this suit seeking to recover that value. Plaintiffs alleged two causes of action: (1) unjust enrichment, and (2) deceptive business practice in violation of
DISCUSSION
We review a district court‘s order granting a motion to dismiss under
A. Unjust Enrichment
“To prevail on a claim for unjust enrichment in New York, a plaintiff must establish (1) that the defendant benefitted; (2) at the plaintiff‘s expense; and (3) that equity and good conscience require restitution.” Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448 F.3d 573, 586 (2d Cir. 2006). The question on appeal is whether plaintiffs have alleged sufficient facts that, when taken as true, show that “equity and good conscience require restitution.” Id. Plaintiffs’ basic contention is that they were duped into providing free content for The Huffington Post based upon the representation that their work would be used to provide a public service and would not be supplied or sold to “Big Media.” Had they known that The Huffington Post would use their efforts not solely in support of liberal causes, but, in fact, to make itself desirable as a merger target for a large media corporation, plaintiffs claim they would never have supplied material for The Huffington Post.
The problem with plaintiffs’ argument is that it has no basis in their Amended Complaint. Nowhere in the Amended Complaint do plaintiffs allege that The Huffington Post represented that their work was purely for public service or that The Huffington Post would not subsequently be sold to another company. To the contrary, plaintiffs were perfectly aware that The Huffington Post was a for-profit enterprise, which derived revenues from their submissions through advertising. Perhaps most importantly, at all times prior to the merger when they submitted their work to The Huffington Post, plaintiffs understood that they would receive compensation only in the form of exposure and promotion. Indeed, these arrangements have never changed.
Though it is no doubt a great disappointment to find that The Huffington Post did not live up to the ideals plaintiffs ascribed to it, plaintiffs have made no factual allegations that, if taken as true, would permit the inference that The Huffington Post deceived the plaintiffs or otherwise received a benefit at the expense of the plaintiffs such that equity and good conscience require restitution. See Ashland Inc. v. Morgan Stanley & Co., Inc., 652 F.3d 333, 339 (2d Cir. 2011) (affirming the dismissal of an unjust enrichment claim where “[t]here [was] little in equity and good conscience that weigh[ed] in favor of” restitution). For this reason, as well as those laid out in the District Court‘s careful Opinion and Order of March 30, 2012, plaintiffs have failed to allege facts suffi-
B. Deceptive Business Practice
Plaintiffs next appeal the District Court‘s order dismissing their claim under
The District Court has amply explained why plaintiffs’ Amended Complaint fails to allege facts that, even taken as true, make out the first two elements—that the challenged acts were consumer-oriented or that they were misleading in a material way. Therefore, substantially for the reasons stated in the District Court‘s clear and comprehensive Opinion and Order of March 30, 2012, Plaintiffs’ claim under
C. Dismissal with Prejudice
Finally, plaintiffs appeal the District Court‘s order dismissing the Amended Complaint with prejudice. As stated above, we review a district court‘s order to dismiss with prejudice for abuse of discretion. Grain Traders, 160 F.3d at 106. In light of this deferential standard of review, and the fact that plaintiffs already had an opportunity to amend their original Complaint in response to a motion to dismiss, we cannot say that the District Court abused its discretion in dismissing the Amended Complaint with prejudice.
CONCLUSION
We have reviewed the record and the parties’ arguments on appeal. For the reasons set out above, we AFFIRM the March 30, 2012 judgment of the District Court.