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Alyce Serrano and andrea Londono, On Behalf of Themselves and All v. Cablevision Systems Corp. and Csc Holdings

March 27, 2012

ALYCE SERRANO AND ANDREA LONDONO, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
CABLEVISION SYSTEMS CORP. AND CSC HOLDINGS, INC.,
DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:

MEMORANDUM AND ORDER

Alyce Serrano ("Serrano") and Andrea Londono ("Londono") (collectively, "Plaintiffs") bring this class action pursuant to 18 U.S.C. § 1030, asserting claims for violations of the Consumer Fraud and Abuse Act (the "CFAA") against Cablevision Systems Corp. and CSC Holdings, LLC*fn1 (collectively, "Cablevision" or "Defendants"). Plaintiffs allege that Defendants wrongfully limited Plaintiffs' use of certain peer-to-peer ("P2P") applications without authorization, and thereby caused damage to Plaintiffs' computers. Plaintiffs also assert various state law claims stemming from misrepresentations allegedly made by Defendants concerning the quality and speed of its internet service. The class action seeks: (i) compensation for the damage caused by Defendants' wrongful acts; and (ii) declaratory and injunctive relief to end Defendants' improper practices.

Defendants move for summary judgment on all of Plaintiffs' claims pursuant to Federal Rule of Civil Procedure 56, or, in the alternative, judgment on the pleadings as to Counts I-VI, pursuant to Rule 12(c). Plaintiffs move, pursuant to Rule 56(e), to strike the affidavits submitted by Defendants in support of their motion for summary judgment. For the reasons set forth below, Plaintiffs' motion is denied, and Defendants' motion is granted.

BACKGROUND

Cablevision is a telecommunications, media and entertainment company whose Internet services are branded Optimum Online ® high-speed internet ("Optimum Online"). (Compl. ¶¶ 2, 9, 15; Def. Answer ¶¶ 2, 10.) Plaintiffs are individuals who subscribed to Cablevision's Optimum Online service.

I.Plaintiffs' Subscriptions to Optimum Online Internet Service

Serrano first subscribed to Optimum Online on August 30, 2006, by self-installing the Cablevision software that allowed her computer to access Cablevision's internet network. (Def. 56.1 Stmt. ¶ 1-2; Pl. 56.1 Stmt. ¶ 1-2.) As part of the self-install process, Cablevision customers are provided with an electronic copy of Cablevision's Terms of Service and they must indicate that they have reviewed and agree to the Terms of Service by clicking on a link marked "Agree." (Def. 56.1 Stmt. ¶ 3; Pl. 56.1 Stmt. ¶ 3.) The Terms of Service also incorporate by reference the Acceptable Use Policy ("AUP"). (Def. 56.1 Stmt. ¶ 15.)

On February 3 and March 2, 2008, Serrano executed work orders relating to her internet service. (Def. 56.1 Stmt. ¶ 4; Pl. 56.1 Stmt. Serrano/Londono ¶ 4.) The work orders provided, in the signature block: "By signing below, Customer acknowledges that all information on both sides of this Work Order has been read and agreed to." (Def. 56.1 Stmt. ¶ 5.) The work orders specified: "In addition to the Terms and Conditions set forth herein, please review the appropriate Terms of Service available for each of the specific Optimum services subscribed to, which are incorporated herein by reference . . . ." (Def. 56.1 Stmt. ¶ 6; Pl. 56.1 Stmt. ¶ 6.)

Londono first subscribed to Cablevision's Optimum Online Internet Service on January 13, 2006,*fn2 and signed a work order that, like the work order signed by Serrano, provided in its signature block: "By signing below, Customer acknowledges that all information on both sides of this Work Order has been read and agreed to." (Def. 56.1 Stmt. ¶ 7, 8, 9; Pl. 56.1 Stmt. ¶ 7, 8, 9.) The work order contained the same language as Serrano's providing that the Terms of Service were incorporated by reference. (Def. 56.1 Stmt. ¶ 10, Pl. Stmt. ¶ 10.)

The Terms of Service in effect when Plaintiffs subscribed to Optimum Online state that: "Subscriber's use of the Optimum Online Service(s) shall be deemed acknowledgement that Subscriber has read and agreed to these terms of service." (Def. 56.1 Stmt. ¶ 11.) In the provision entitled, "Bandwidth, Data Storage and Other Limitations," the Terms of Service state: "Cablevision reserves the right to protect the integrity of its network and resources by any means it deems appropriate. This includes, but is not limited to: port blocking, e-mail virus scanning, denying e-mail from certain domains, and putting limits on bandwidth and e-mail." (Def. 56.1 Stmt. ¶ 13.)

The AUP states that "[e]xcessive use of bandwidth, that in Cablevision's sole opinion, goes above normal usage or goes beyond the limit allocated to the user" is a "network security violation." (Def. 56.1 Stmt. ¶ 16.) The AUP grants Cablevision the right "in its sole discretion," to take actions "without prior notification" to protect its network from such harms as "excessive use of bandwidth," including by "temporary suspension of service, reduction of service resources, and termination of service," and further provides that "Cablevision is not liable for any such responsive actions." *fn3 (Def. 56.1 Stmt. ¶ 16, 17.)

II.Plaintiffs' Allegations

The Complaint alleges that Cablevision promised its subscribers "Optimum Online" service and a "Faster Internet," and advertised, marketed and sold its High Speed Internet Service based on claims of "blazing fast speed," and that "Optimum Online's lightning-fast Internet access takes the waiting out of the Web." (Compl. ¶ 17.) The Complaint further alleges that Defendants claim premium service "up to 5x faster than phone company High Speed Internet." The Plaintiffs contend that these representations allow Defendants to charge a premium of "up to more than 100%" of the fees charged by its competitors. (Compl. ¶ 18.)

Plaintiffs allege that Defendants severely limited the speed of and/or altogether stopped certain P2P file sharing internet applications by engaging in a network management practice called "throttling," which interferes with subscribers' ability to share online content via P2P transmissions by disrupting the Transmission Communication Protocol ("TCP") on subscribers' computers. (Compl. ¶¶ 3, 22.) Specific forms of throttling alleged include: forging TCP packets of a certain type, known as "reset" or "RST" packets; deliberately dropping (failing to deliver) a larger proportion of P2P packets than non-P2P packets, thereby causing the communications to slow; or blocking a proportion of a P2P program's attempts to establish connections by never transmitting them in the first place. (Compl. ¶¶ 22, 23.) Plaintiffs allege that the forged reset packets Defendants sent plaintiffs damaged plaintiffs' computers by compromising the internal software and impairing their ability to receive and transmit data. (Compl. ¶ 24.)

Plaintiffs allege that they have been damaged and incurred losses as a result of Defendants' conduct, citing Plaintiffs' inability to receive and make Skype calls as an example.

(Compl. ¶¶ 28, 29.) Plaintiffs allege that they suffered a loss as a result of Defendants' throttling, because they "wasted time and effort in determining what was causing the slow connection, either by rebooting their computers, or by making repeated but unsuccessful attempts to reconnect to various persons using the Skype application." (Compl. ¶ 30.) Finally, Plaintiffs resorted to land line and cell phones to call persons they could not reach on Skype, thereby incurring costs for telephone service that would not have been incurred if Defendants had not interrupted their Skype service. (Id.)

PLAINTIFFS' MOTION TO STRIKE

Rule 56(e) states that: "[a] supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." FED. R. CIV. P. 56(e). The Second Circuit has explained that a court may "strike portions of an affidavit that are not based upon the affiant's personal knowledge, contain inadmissible hearsay, or make generalized and conclusory statements." Hollander v. American Cyanamid Co., 172 F. 3d 192, 198 (2d Cir.1999) (abrogated on other grounds by Schnabel v. Abramson, 232 F. 3d 83 (2d Cir. 2000)). "Alternatively, a court may, in considering a motion for summary judgment, simply decline to consider those aspects of a supporting affidavit that do not appear to be based on personal knowledge or are otherwise inadmissible." Doe v. ...


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