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Dollar Phone Corp. v. Dun & Bradstreet Corp.

United States District Court, E.D. New York

April 5, 2013

DOLLAR PHONE CORP., et al., Plaintiff, -
v.
- DUN & BRADSTREET CORP., et al., Defendants

For Dollar Phone Corp., Global Switching, Inc., individually and on behalf of all those similarly situated, Plaintiffs: Edward N. Gewirtz, Law Offices of Edward N. Gewirtz, New York, NY; Peretz Bronstein, Bronstein, Gewirtz & Grossman, LLC, New York, NY.

For Dun & Bradstreet Corporation, Dun & Bradstreet, Inc., Defendants: Jason E. Halper, Lowenstein Sandler P.C., New York, NY; Kristin Anne Muir, Lwenstein Sandler PC, Roseland, NJ.

OPINION

Page 210

I. Leo Glasser, Senior United States District Judge.

MEMORANDUM AND ORDER

This action is a reminder of the adage that " people who accept an offer assume the risk of unread terms that may prove unwelcome." Schnabel v. Trilegiant Corp., 697 F.3d 110, 123 (2d Cir. 2012) (quotation omitted). Plaintiffs Dollar Phone Corp. (" Dollar Phone" ) and parent company Global Switching, Inc. (" Global Switching," collectively " plaintiffs" ) bring this class action on behalf of themselves and a putative class for breach of contract and unjust enrichment against Dun & Bradstreet Corp. and Dun & Bradstreet, Inc. (collectively, " D& B" or " defendants" ) arising from the purchase by plaintiffs of a D& B service, ScoreBuilder. Currently before the Court is D& B's motion for summary judgment on these claims. For the reasons that follow, D& B's motion is hereby GRANTED.

I. BACKGROUND

Unless otherwise noted, the following facts are undisputed. Dollar Phone purchases wholesale " air time" (minutes of speaking over the phone) from hundreds of vendors and resells them to other carriers. Plaintiffs' Statement of Facts Pursuant to Local Civil Rule 56.1 in Opposition to Defendants' Motion for Summary Judgment dated June 18, 2012 ¶ 1 (" Pls.' 56.1 Opp'n" ) (Dkt. No. 89-1); Declaration of Jason Halper dated April 20, 2012 (" Halper Decl." ), Ex. B (Del Cielo Dep.), at 47-48 (Dkt. No. 69-2). Dollar Phone is owned by parent company Global Switching, and both are

Page 211

Brooklyn-based New York corporations. Halper Decl., Ex. B (Del Cielo Dep.), at 12-13. D& B is a New Jersey-based Delaware corporation that maintains credit reports, financial performance figures, and a plethora of scores and ratings on companies that help assess the credit risk of those companies. Defendants' Local Rule 56.1 Statement of Undisputed Material Facts dated April 20, 2012 ¶ ¶ 2-3 (" Defs.' 56.1" ) (Dkt. No. 67-2); Pls.' 56.1 Opp'n ¶ ¶ 2-3. D& B calculates some of these scores based on payments to companies' vendors. Approximately 8,000 vendors automatically report payment experiences to D& B, and D& B terms these reports " trade tape." Defs.' 56.1 ¶ ¶ 4, 7; Pls.' 56.1 Opp'n ¶ 4.

During all times relevant to this action, D& B sold a product called ScoreBuilder both through its small business website and over the phone. Affirmation of Peretz Bronstein dated March 2, 2012 (" Bronstein Aff." ), Ex. 1 (Dkt. No. 71-5); Halper Decl., Ex. B (Del Cielo Dep.), at 96-98. In June 2005, Dollar Phone purchased ScoreBuilder from D& B for $399; it bought the product again in October 2007 for $404.10 and yet again in January 2009 for $437.94. Defs.' 56.1 ¶ ¶ 16, 18.[1] Global Switching also purchased ScoreBuilder in 2006, 2007, and 2009. Id. ¶ 17. Dollar Phone director of human resources Jennifer Del Cielo (" Del Cielo" ) repeatedly purchased ScoreBuilder over the phone without ever having read D& B's website or any other material. Halper Decl., Ex. B (Del Cielo Dep.), at 9, 96-100. Each purchase was memorialized in the following email (" purchase email" ) sent from D& B to Del Cielo:

Thank you for your purchase of ScoreBuilder.
ScoreBuilder enables you to submit up to six trade references to D& B which we will attempt to convert into payment experiences. Verified experiences will then be added to your D& B credit file to improve the accuracy of your scores and ratings. You may have already started to provide us with trade references at the time of purchase.
You will also be receiving:

- An email containing a link to provide us with additional references

- An initial snapshot of your business credit file (Business Information Report) updated to reflect the most recent information you provided to D& B

- Periodic status emails to track the progress of your trade references

- A SelfMonitor report, which enables you to view the most up-to-date information in your credit file, will be delivered once D& B has resolved the trade references provided . . .

If you have any questions or ...


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