Pocket Parts: Suing Matthew Bender
The New York Court of Appeals upheld the dismissal of a suit against Matthew Bender
For several consecutive years, plaintiffs bought the annual edition of a legal resource manual published and sold by defendant. The main issue on this appeal is whether plaintiffs’ complaint adequately pleaded a deceptive act or practice prohibited by General Business Law § 349, based on defendant’s alleged misrepresentations about the completeness of the laws reproduced in one section of its publication. Although defendant’s acts are consumer-oriented—as the alleged misrepresentations are contained in a manual that was then marketed to and available for purchase by consumers— defendant’s acts were not materially misleading. Contrary to plaintiffs’ argument, a consumer acting reasonably under the circumstances here would not have believed that defendant represented that the section at issue, containing rent control statutes and regulations, was current and accurate for its one-year shelf life.
Plaintiffs
Plaintiffs Himmelstein, McConnel, Gribben, Donoghue & Joseph, LLP, Housing Court Answers, Inc., and Michael McKee are, respectively, a law firm that handles landlord-tenant actions, a non-profit corporation that assists pro se litigants in housing court matters, and a tenant advocate and organizer. Plaintiffs brought this action on behalf of themselves and a putative class of purchasers of certain annual editions of New York Landlord-Tenant Law (the Tanbook), a compilation of New York legal materials on landlord-tenant law, against defendant Michael Bender & Company Inc. (defendant), the publisher of the Tanbook.
The Supreme Court dismissed the claims and was affirmed by the Appellate Division.
The law
The requisite elements of the cause of action are well established. A plaintiff must allege that: (1) the defendant’s conduct was consumer-oriented; (2) the defendant’s act or practice was deceptive or misleading in a material way; and (3) the plaintiff suffered an injury as a result of the deception (GBL § 349 [h]; Plavin v Group Health Inc., 35 NY3d 1, 10 [2020]). Thus, to avoid dismissal, plaintiffs must adequately plead each of these elements.
Deficiency of proof
Plaintiffs’ claims are significantly undercut by defendant’s supporting documentary evidence, including the undisputed terms and conditions of the contract for purchase, which constitutes the entire agreement between defendant and each plaintiff. Plaintiffs contracted for editions of the Tanbook under a “non-service subscription whose price does not include [u]pdates.” Thus, in addition to the Tanbook, plaintiffs would automatically receive “any supplementation, releases, replacement volumes, new editions and revisions . . . made available during the annual subscription period” along with invoices for the additional cost of any updated materials. Therefore, defendant expressly offered, and plaintiffs chose to receive, automatic serial mailings of the year’s Tanbook edition upon its publication, with any updates to that edition—if and when they became available—at an additional and separate cost charged by invoice and sent with the update. As the agreement makes clear, updates might be forthcoming during the edition year but were not guaranteed, and it fell to plaintiffs to confirm the Tanbook’s contents pending arrival of those updates. It is therefore clear to a consumer that the Tanbook is not a completely accurate compilation of the law.
…In sum, plaintiffs’ cause of action is based on purchases of yearly editions of the Tanbook, under a sales agreement that charged extra for any updates of the year’s materials contained in the corresponding edition. Plaintiffs’ allegations are limited to omissions and inaccuracies in a section of the Tanbook they knew was subject to legislative amendment, which they concede were corrected in the 2017 edition after the errors were brought to defendant’s attention, and which were specifically contemplated by defendant’s express disclaimer of the currentness of the Tanbook’s contents. Under the circumstances, plaintiffs, or any reasonable consumer, could not have been materially misled to believe that defendant guaranteed Part III of the Tanbook was complete and accurate at any given time. Thus, because plaintiffs failed to adequately plead this element, their GBL § 349 cause of action was properly dismissed.
Justice Fahey dissented in part
I cannot agree with the majority, however, that plaintiffs failed to sufficiently allege conduct that was materially misleading. Plaintiffs have essentially articulated two theories of alleged deceptive conduct: (1) that defendant’s statements on its online store and in the Tanbook itself would lead a reasonable consumer to believe that the Tanbook contained all the updated laws regarding rent regulation and stabilization; and (2) the fact that the Tanbook is updated and purchased by customers annually would lead a reasonable consumer to believe that the Tanbook was updated on an annual basis with the changes to the law that were made the previous year, i.e., that consumers were not merely purchasing another copy of the same book each year.