Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—DNJ: Time Warner Cable Subscriber Could Not State Claims for Failure to Provide Sports Programming, (Jun 7, 2013)

By Jody Coultas, J.D.

A cable subscriber could not state New Jersey Consumer Fraud Act (CFA) claims against Time Warner Cable Inc. (TWC) for failing to provide certain sports programming, according to the federal district court in Newark, New Jersey (Hoffman v. Time Warner Cable Inc., June 6, 2013, Debevoise, D.).

The subscriber alleged that he decided to subscribe to TWC based on representations that he would receive two regional sports networks. TWC’s right to carry sports programming expired and was not renewed until 49 days later. In the CFA claims, the subscriber alleged that he had no alterative or remedy available and that he suffered an ascertainable loss in the form of payment for services that were promised by not delivered.

Because the subscriber could not show that TWC promised anything to him regarding the sports programming, the court dismissed the CFA claim. The subscriber was required to show unlawful conduct by TWC and an ascertainable loss that was caused by the unlawful conduct. CFA claims are subject to the heightened pleading standard of Federal Rule of Civil Procedure 9(b), which required the subscriber to state the date, time, and place of the alleged fraud, who made the misrepresentations, and the general content of the misrepresentation. First, the court noted that the claims were lacking in facts and merely recited the elements of the claim and conclusory statements. The court also held that the subscriber’s claims for lack of particularity. There was no evidence concerning who made the alleged representations, the nature of the communications, or the time or date of the communications. The subscriber also failed to present any details to support the unlawful omissions claims.

The subscriber also failed to state a breach of contract or unjust enrichment claim, according to the court.

The case is No. 12-00978 (ES).

Attorneys: Philip C. Chronakis (Chronakis Siachos & Kaplan, LLC) for Harold M. Hoffman. William E. Goydan (Wolff & Samson PC) for Time Warner Cable Inc.

Companies: Time Warner Cable Inc.

Cases: StateUnfairTradePractices NewJerseyNews