United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD, UNITED STATES DISTRICT JUDGE.
Express Gold Cash, Inc. ("Plaintiff) commenced the
instant action on July 31, 2018, alleging claims of false
advertising, deceptive business practices, unfair
competition, and unjust enrichment against Defendant Beyond
79, LLC ("Defendant"). (Dkt. 1). Currently before
the Court is Defendant's motion to dismiss the Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim. (Dkt. 6). For the reasons set forth
below, the Court grants Defendant's motion in part and
denies it in part.
following facts are taken from Plaintiffs Complaint. As
required at this stage of the proceedings, the Court treats
Plaintiffs allegations as true.
is a "nationwide mail-in precious metals dealer,"
and conducts its business via the interactive website
www.sellyourgold.com. (Dkt. 1 at ¶¶ 18-19). The
mail-in precious metals industry operates as follows: (1) a
customer requests a free appraisal kit from a dealer; (2) the
dealer mails the appraisal kit to the customer, who then uses
the enclosed prepaid shipping label to mail items to the
dealer for appraisal; (3) the customer receives an offer for
the items, which he or she can either accept or decline; and
(4) if the customer declines the offer, the items are
returned free of charge. (Id. at ¶ 26).
Plaintiff and Defendant are "two of the top ...
competitors" in the mail-in precious metals industry.
(Id. at ¶ 27).
2010, the Today Show, a nationally televised morning show on
the NBC network, aired a segment in which it "claimed to
have compared the prices offered by ten different mail-in
precious metals dealers by mailing a single item of gold to
each one," and further claimed that it received the
highest offer from Defendant, which "offered 90% of
market value." (Id. at ¶¶ 29-30).
in 2011 and continuing into the present," Defendant has
"published variations of an advertisement that it is
'ranked [or rated] #1 on [or by] NBC's Today
Show." (Id. at ¶¶ 24, 32 (alterations
in original)). Plaintiff alleges that this amounts to
deceptive advertising, and that Defendant has:
concealed and fabricated the original broadcast date, and
exploited NBC's goodwill to convey the false impression
that Defendant is currently and actually "ranked
#1" by Today; that Today and NBC currently endorse, or
have ever endorsed Defendant; that Today's findings were
based on a comprehensive and rigorous evaluation of multiple
factors rather than price offered for a single sale; that
Today's findings were based on a larger than actual
sample size; and Today's findings relate to all types of
precious metals and jewelry-not just gold.
(Id. at ¶ 34). Defendant has disseminated this
allegedly deceptive advertising on its website, where it has
also used "the sound of three tones that are reasonably
identical to the famous three tones used by NBC to identify
its broadcasting service." (Id. at ¶ 39).
Defendant has further displayed the allegedly deceptive
advertising on its YouTube page, in paid internet
advertisements, on its social media accounts, and on consumer
review websites. (Id. at ¶¶ 36-46).
Defendant has also used the allegedly deceptive advertising
in direct communications with customers, such as appraisal
kits and emails, and in newspapers and classified
advertisements. (Id. at ¶¶ 48-56).
from its allegations regarding Defendant's Today
Show-related advertising, Plaintiff also alleges that
Defendant's website makes misleading representations
about recently purchased items. In particular, Plaintiff
alleges that "Defendant's website displays stock
photographs allegedly depicting its 'latest payouts'
to customers," and that these "stock photographs
are false and misleading because they grossly exaggerate the
kind, quality and quantity of recently purchased
items[.]" (Dkt. 1 at ¶¶ 57-58). The stock
photographs in question have captions stating that
"photos are illustrative and depict items of similar
kind, quality and quantity to actual items purchased."
(Dkt. 1-1 at 62).
on these allegations, Plaintiff asserts five claims against
Defendant: (1) false advertising under the Lanham Act, 15
U.S.C. § 1125(a); (2) deceptive acts and practices under
New York General Business Law § 349; (3) false
advertising under New York General Business Law § 350;
(4) common law unfair competition; and (5) unjust enrichment.
(Dkt. 1 at ¶¶ 67-96).
commenced the instant action on July 31, 2018. (Dkt. 1).
Defendant filed its motion to dismiss on September 17, 2018.
(Dkt. 6). Plaintiff filed its response on October 26, 2018
(Dkt. 10), and Defendant filed its reply on November 16, 2018
considering a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6), a district court may consider the
facts alleged in the complaint, documents attached to the
complaint as exhibits, and documents incorporated by
reference in the complaint." DiFolco v. MSNBC Cable
L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court should
consider the motion by "accepting all factual
allegations as true and drawing all reasonable inferences in
favor of the plaintiff." Trs. of Upstate
N.Y.Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d
561, 566 (2d Cir. 2016), cert, denied, 137 S.Ct.
2279 (2017). To withstand dismissal, a claimant must set
forth "enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir.
2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiffs
obligation to provide the grounds of his entitle[ment] to
relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Twombly, 550 U.S. at 555
(internal quotations and citations omitted). "To state a
plausible claim, the complaint's '[f]actual
allegations must be enough to raise a right to relief above
the speculative level.'" Nielsen v.
AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014)
(quoting Twombly, 550 U.S. at 555).
Timeliness of Plaintiffs Claims
threshold matter, Defendant argues that Plaintiffs claims are
barred by the applicable statutes of limitations, or by the
doctrine of laches. (See Dkt. 6-1 at 29-32). The
Court denies the motion on these grounds, for the reasons
Lanham Act False Advertising Claim
Lanham Act. . . contains no statute of limitations," but
instead "expressly provides for defensive use of
equitable principles, including laches." Petrella v.
Metro-Goldwyn-Mayer, Inc.,572 U.S. 663, 678
n. 15 (2014) (quotation omitted); see alsoConopco, Inc. v. Campbell Soup Co.,95 F.3d 187, 191
(2d Cir. 1996) ("[L]aches is an equitable defense,
employed instead of a statutory time-bar[.]").
Nonetheless, "analogous statutes of limitation remain an
important determinant in the application of a laches
defense," and "determine which party possesses