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Alex Derbaremdiker v. Applebee's International

September 26, 2012


The opinion of the court was delivered by: Matsumoto, United States District Judge:


On March 1, 2012, Alex Derbaremdiker ("plaintiff") commenced this putative class action against defendant Applebee's International, Inc. ("Applebee's" or "defendant"), asserting deceptive practices and unjust enrichment claims under New York law in connection with a sweepstakes that plaintiff participated in via defendant's website. (See ECF No. 1, Complaint ("Compl.").) Presently before the court is defendant's motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Oral argument was held on the motion on September 21, 2012. Having reviewed the parties' submissions, the record before the court, and the relevant case law, for the reasons set forth below, defendant's motion to dismiss is granted in its entirety.


The following facts, taken from plaintiff's complaint, are assumed to be true for the purpose of deciding the instant motion. Additionally, as discussed further below, the court has considered the exhibits accompanying the parties' submissions*fn1 because they are either quoted in, incorporated in by reference in, or integral to, the complaint, and both parties agreed at oral argument that consideration of those exhibits is proper on this motion to dismiss. (See Def. Mem. at 9-10; Pl. Opp'n at 8.)

On November 3, 2011, plaintiff dined at one of defendant's restaurants located at 2201 Nostrand Avenue in Brooklyn, New York, and received a receipt for his meal. (Compl. ¶ 14.) Plaintiff's receipt contained the following text, in relevant part:

(Id. ¶¶ 10-13; ECF No. 16-1, Receipt; see ECF No. 16, Declaration of Plaintiff ¶ 2.)*fn2 Upon visiting (the "Website"), a customer could access the "Guest Experience Survey" (the "Survey") by entering information from his or her receipt, including a serial number. (ECF No. 13-3, Screenshot of Website (the "Screenshot"); ECF No. 13-2, Declaration of Mark Williamson ("Williamson Decl.") ¶ 3.) Plaintiff thereafter visited the Website, entered the information from his receipt, completed the Survey, and was entered into a daily drawing (the "Sweepstakes"). (Compl. ¶ 14.)

When plaintiff visited the Website to complete the Survey, the Website stated the following information regarding the Sweepstakes:

(Screenshot.)*fn3 The asterisk next to "$1,000" was placed next to the following text at the bottom center of the Website:

(Id.)*fn4 If a user clicked on the underlined hyperlink, "CLICK HERE FOR OFFICIAL RULES" (Screenshot), the user would be directed to another website with the heading "OFFICIAL RULES" (the "Official Rules"). (ECF No. 13-4, Official Rules; Williamson Decl. ¶ 4.)

The Officials Rules stated: "You have been invited by Applebee's (the 'Client') to participate in the following contest(s), with a chance to win the following eligible prize(s)[.]" (Official Rules.) Under the heading "Contest Name and Sponsor," the Official Rules stated: "Empathica Inc. Customer Satisfaction Survey Sweepstakes, sponsored by Empathica, Inc." (Id.) Under the heading "Eligible Prize(s)," the Official Rules stated the following:

(Id.)*fn5 Finally, the Official Rules stated that the Sweepstakes may be entered via the Website and contained the following reservation of rights and disclaimer: "The Sponsor [Empathica Inc.] reserves the right to receive entries into the contest through these and any other methods, as may be determined from time to time, by the Sponsor at its sole discretion. Sponsor will pool entries received from Client's [defendant's] surveys with entries received from other clients of Sponsor." (Id.)

The website containing the Official Rules also provided a hyperlink to the "complete Empathica Inc. Customer Satisfaction Survey Sweepstakes Rules" (the "Complete Sweepstakes Rules"). (Id.; see Williamson Decl. ¶ 5.) The Complete Sweepstakes Rules disclosed the following information:

(1) a "Daily Prize" of $1,000 and an "Instant Prize" of an iPod Nano is "available to be won" each day of the Sweepstakes (ECF No. 13-5, Complete Sweepstakes Rules at 1); (2) "There will be a series of distinct and separate Sweepstakes conducted each and every day during the month of November 2011, with each Sweepstakes lasting one (1) day" during that month (id. at 2);

(3) "Each survey completed on the Website . . . shall receive

(10) entries to the draw" (id. at 3); (4) "Unselected entries will not be eligible for subsequent draws" (id.); and (5) "The chances of winning the prize depend on the number of eligible entries received and the number of the Sponsor's client companies that are participating in the Sweepstakes" (id. at 4).

Plaintiff makes two primary allegations underlying his claims: (1) "[i]n describing the Applebee's Sweepstakes on its [receipts], Applebee's implies that participants in the Applebee's Sweepstakes compete for prizes only against other Applebee's Sweepstakes participants when, on the contrary, they compete against participants in the sweepstakes of ...

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