Antitrust Law Daily Wrap Up, ADVERTISING—2ndCir: False Advertising Claims Against Time Warner Cable Lacked Facial Plausibility , (May 7, 2013)
Law Firms Mentioned:Cahill Gordon & Reindel LLP | Reese Richman LLP
Organizations Mentioned:Cahill Gordon & Reindel, LLP | Time Warner Cable
By Jody Coultas, J.D.
Internet subscribers were unable to state New York and California consumer protection law claims against Time Warner Cable for falsely advertising its Internet services, according to the U.S .Court of Appeals in New York (Fink v. Time Warner Cable, May 6, 2013, Per Curiam).
Time Warner allegedly advertised that its Road Runner Internet service provided (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. The subscribers sought to represent a class of Road Runner subscribers, arguing that Time Warner used network management techniques that decreased the speed at which Road Runner subscribers access certain high-bandwidth Internet applications."
To state New York and California false advertising claims, the subscribers needed to show that the advertisements were likely to mislead a reasonable consumer acting reasonably under the circumstances.
The subscribers failed to present sufficient evidence to support their claims, according to the court. The only advertisement submitted as evidence was dated nine months after the suit was filed and contained only one of the four alleged misrepresentations. Although the complaint purported to quote the misleading advertisements verbatim, the subscribers were unable to produce those advertisements. There was evidence that the advertisements contained disclaimers and explanatory language that the subscribers failed to submit. Because the suit was based on specific text in specific advertisements, the subscribers could not rely on discovery to tell them what that advertisement actually said, the court noted.
The case is No. 12-0299-cv.
Attorneys: Michael R. Reese (Reese Richman LLP) for Jessica Fink. Jonathan D. Their (Cahill Gordon & Reindel LLP) for Time Warner Cable.
Companies: Time Warner Cable
Cases: Advertising ConnecticutNews NewYorkNews VermontNews