August conversations, to break the promises they allegedly made.
The Court finds Curry's pleadings sufficient in this regard. Curry's August conversation with Stillerman was critical to his reliance and resulting damages. (Countercl. PP 27-30.) Curry alleges that "during the second half of 1993, MTVN and Viacom explored various options for development of interactive television or on-line computer services" (Id. P 17), resulting in an agreement with America On-Line to provide a computer link to MTVN (Countercl. P 19). Since the "second half of 1993" encompasses August, 1993, the Court only need infer that Stillerman, a "senior executive" at MTVN, would be aware of MTVN's plans to develop a computer-based information service to find a sufficient basis for scienter in Curry's pleadings.
MTVN also argues that Curry fails to plead another required element for his fraud claim, reasonable reliance on the purported oral agreement. The essence of this argument is that Curry, whose previous written employment contracts denied him rights to MTVN's intellectual property, should have known that MTVN would not orally grant him such rights in conjunction with his fledgling service.
Questions of the reasonableness of reliance raise issues of fact that must be resolved at trial. Whitbread Holdings Inc. v. Baron Phillippe De Rothschild, S.A., 630 F. Supp. 972, 978 (S.D.N.Y. 1986). The Court notes only that Curry's pleadings allege a period of services rendered to MTVN, from May, 1992 through April, 1994, that were not based upon a written contract. This oral employment contract may have set the stage for the oral agreement that Curry now asserts. The Court also takes judicial notice of the explosive growth in public and corporate awareness of the commercial potential of the Internet. What seems an unlikely grant of intellectual property rights in the summer of 1994, might have seemed far less valuable to a broadcast media entity such as MTVN even one year ago.
The Court therefore finds that Curry's fraud allegations are sufficient to withstand this motion to dismiss. The Court is similarly unpersuaded by the similar arguments that MTVN raises in opposition to Curry's negligent misrepresentation counterclaim.
D. Unfair Competition Claim
Curry's third counterclaim alleges the New York common law tort of unfair competition, which "bans 'any form of commercial immorality.' A cause of action for unfair competition requires unfairness and an unjustifiable attempt to profit from another's expenditure of time, labor and talent." Coors Brewing Co. v. Anheuser-Busch Cos., 802 F. Supp. 965, 975 (S.D.N.Y. 1992) (citations omitted). This claim is grounded in Curry's theory that MTVN was using his Internet site as a no risk "test bed" for its own on-line service.
MTVN argues that it cannot determine how to interpret Curry's third counterclaim, which in paragraph 33 of his Answer and Counterclaims charges MTVN with "misappropriat[ing] the fruits of Curry's labors and expenditures." The Court agrees that Curry has failed to specify what it is that MTVN has allegedly misappropriated.
Unfair competition is an imprecisely defined cause of action in New York. There appear to be "few limits on this evolving tort." Demetriades v. Kaufmann, 698 F. Supp. 521, 525 (S.D.N.Y. 1988) its confines are marked only by the conscience, justice and equity of common-law judges.'" Id. (quoting Metropolitan Opera Ass'n, Inc. v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 101 N.Y.S.2d 483, 488 (Sup. Ct. 1950), aff'd, 107 N.Y.S.2d 795, 279 A.D. 632 (A.D. 1st Dept. 1951)).
Rule 12(e) of the Federal Rules of Civil Procedure states in part:
If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement . . . .