Filed: Jul. 20, 2018
Latest Update: Mar. 03, 2020
Summary: 17-3939 Frintzilas v. DirecTV UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@)
Summary: 17-3939 Frintzilas v. DirecTV UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@)...
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17‐3939
Frintzilas v. DirecTV
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 20th day of July, two thousand eighteen.
PRESENT: DENNIS JACOBS,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
WILLIAM FRINTZILAS, individually and on
behalf of all others similarly situated, and
ANGELO POZZUTO, individually and on
behalf of all others similarly situated,
Plaintiffs‐Appellants,
‐v.‐ 17‐3939
DIRECTV, LLC and MASTEC, INC.,
Defendants‐Appellees.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
1
FOR APPELLANTS: Steven Bennett Blau and Shelly A.
Leonard, Blau Leonard Law Group,
LLC, Huntington, NY.
FOR APPELLEES: Hans J. Germann, Mayer Brown LLP,
Chicago, IL, counsel for DIRECTV,
LLC.
Christopher J. Belter, Goldberg
Segalla LLP, Buffalo, NY, counsel for
MasTec, Inc.
Appeal from an order of the United States District Court for the Southern
District of New York (Forrest, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the order of the district court be AFFIRMED.
Plaintiffs‐appellants William Frintzilas and Angelo Pozzuto, individually
and on behalf of other landlords similarly situated, appeal from a November 27,
2017 order of the United States District Court for the Southern District of New
York (Forrest, J.) dismissing their complaint under Fed. R. Civ. P. 12(b)(6) for lack
of standing and failure to state a claim. On appeal, plaintiffs argue that the
district court erred because: (1) they suffered a direct injury when the defendants
installed equipment in their buildings for use by tenants, and therefore possess
standing to bring their claim under New York General Business Law § 349 (“GBL
§ 349”), which prohibits “[d]eceptive acts or practices in the conduct of any
business, trade or commerce or in the furnishing of any service”; and (2) they
adequately alleged a plausible violation of GBL § 349. We assume the parties’
familiarity with the underlying facts, the procedural history, and the issues
presented for review.1
1 The Court declines plaintiffs’ invitation to certify the questions of whether he
lacks standing and failed to state a claim to the New York Court of Appeals.
N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27.
2
1. Plaintiffs allege that defendants’ standard practice is to deceive
tenant‐subscribers by presenting them with a misleading consent form, and that
tenant‐subscribers are likely to sign out of convenience or confusion. Armed
with the consent form, defendants install their hardware, which in turn harms the
landlord. While there are intervening steps between defendants’ deceptive
action and plaintiffs’ harm, plaintiffs argue that so long as their harm
(installation) is a proximate result of defendants’ misleading conduct, they have
standing to bring a GBL § 349 claim.
Plaintiffs are incorrect. As they acknowledge, standing under GBL § 349
requires a direct rather than a derivative injury. City of N. Y. v.
Smokes‐Spirits.Com, Inc., 12 N.Y.3d 616, 622 (2009). Plaintiffs’ alleged injuries
are derivative because they are “purely contingent on harm to third parties”: the
harm to the tenant‐subscriber by being presented the allegedly materially
misleading form. Id. at 623 (quoting Laborers Local 17 Health & Benefit Fund v.
Philip Morris, Inc., 191 F.3d 229, 239 (2d Cir. 1999)). Plaintiffs must “plead that
they have suffered actual injury caused by a materially misleading” act, not that a
misleading act led to further steps which eventually harmed them. Id.
Plaintiffs attempt to avoid their standing problem by arguing that the
tenant‐subscribers suffer no injury; but if this is true (and it seems to be), plaintiffs
cannot assert a claim under GBL § 349, which requires that a materially
misleading statement be made in the first place.
2. While lack of standing is itself sufficient for affirmance, we also reject
plaintiffs’ argument that they sufficiently pled a violation of GBL § 349 to survive
a motion to dismiss. To state a claim for a violation of GBL § 349, a plaintiff must
adequately allege “first, that the challenged act or practice was
consumer‐oriented; second, that it was misleading in a material way; and third,
that the plaintiff suffered injury as a result of the deceptive act.” Stutman v.
Chem. Bank, 95 N.Y.2d 24, 29 (N.Y. 2000).
The only alleged misleading act is the use of the challenged consent form,
which, as the district court properly found, is not deceptive since it is not “likely
to mislead a reasonable consumer acting reasonably under the circumstances.”
Oswego Laborersʹ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85
3
N.Y.2d 20, 26 (1995). The consent form required a tenant or family member (over
the age of 18) to represent that “DIRECTV System installation at (address) has
been verbally approved by my landlord (or is not required pursuant to my lease
or rental agreement.)” 2 App’x at 30. This statement is not misleading. The
only potentially misleading statements that might be made under the facts as
alleged would come from the tenant‐subscriber (falsely representing that they
had received permission to install the hardware) not from the defendants.
Therefore plaintiffs have failed to adequately plead any materially misleading
statements.
Accordingly, the order of the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE
CLERK OF COURT
Plaintiffs attempt to cite to a different consent form than the one cited to in their
2
Complaint. We decline to consider it here. Goel v. Bunge, Ltd., 820 F.3d 554,
559 (2d Cir. 2016).
4