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United States Court of Appeals for the Second Circuit
October 26, 2012, Argued; May 6, 2013, Decided
Docket No. 12-0299-cv
[*740] Per Curiam:
Plaintiffs-Appellants Jessica Fink and Brett Noia ("Plaintiffs") appeal from a judgment of the United States District Court for the Southern District of New York (Laura Taylor Swain, Judge) dismissing [**2] their Second Amended Class Action Complaint ("Complaint") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We conclude that the allegations stated in the Complaint — which raise claims related to deceptive advertising by Defendant-Appellee Time Warner Cable ("Time Warner") — lack facial plausibility sufficient to withstand a motion to dismiss. Accordingly, we affirm the judgment of the District Court.
Plaintiffs challenge the veracity of certain advertisements in which Time Warner allegedly described its Road Runner Internet service ("Road Runner") as providing (1) an "always-on connection" (2) at a "blazing speed" (3) that is "up to 3 times the speed of most standard DSL packages and up to 100x faster than dial-up" and (4) the "fastest, easiest way to get online." Plaintiffs, who sue on behalf of a putative nationwide class consisting of Road Runner subscribers, allege that these advertisements were false and misleading because Time Warner engages in network management techniques that decrease the speed at which Road Runner subscribers access certain high-bandwidth Internet applications. Plaintiffs assert that Time Warner's allegedly deceptive advertisements [**3] violate New York General Business Law § 349 and various California consumer protection statutes, and give rise to claims for common law fraud, breach of the implied covenant of good faith and fair dealing, and unjust enrichment.1
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714 F.3d 739 *; 2013 U.S. App. LEXIS 9146 **; 2013 WL 1859141
JESSICA FINK, on behalf of herself and all others similarly situated, BRETT NOIA, on behalf of himself and all others similarly situated, Plaintiffs-Appellants, —v.— TIME WARNER CABLE, Defendant-Appellee, TIME WARNER, INC., Defendant.
Prior History: [**1] The issue raised in this appeal is whether the United States District Court for the Southern District of New York (Laura Taylor Swain, Judge) erred in dismissing the putative class-action complaint of Plaintiffs-Appellants Jessica Fink and Brett Noia pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Upon review, we conclude that the allegations stated in the putative class-action complaint — which raise claims related to deceptive advertising by Defendant-Appellee Time Warner Cable — lack facial plausibility. Accordingly, we conclude that the District Court did not err in dismissing the complaint.
Fink v. Time Warner Cable, 837 F. Supp. 2d 279, 2011 U.S. Dist. LEXIS 148082 (S.D.N.Y., 2011)
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