In re Trilegiant Corp.

• Decision Date: 28 March 2014
• Docket Number: Civil Action No. 3:12–CV–00396 VLB.
• Citation: 11 F.Supp.3d 132
• Court: U.S. District Court — District of Connecticut
• Parties: In re TRILEGIANT CORPORATION, INC.

11 F.Supp.3d 132

In re TRILEGIANT CORPORATION, INC.

Civil Action No. 3:12–CV–00396 VLB.

United States District Court, D. Connecticut.

Signed March 28, 2014.

Andrew W. Skolnick, David L. Belt, David A. Slossberg, Hurwitz Sagarin Slossberg & Knuff LLC, Milford, CT, David Pastor, Pastor Law Office, LLP, Boston, MA, Karen Leser Grenon, Sheperd Finkelman Miller & Shah, LLP, Chester, CT, Kenneth G. Gilman, Thomas E. Shea, Gilman Law LLP, Bonita Springs, FL, for Plaintiffs.

Karen L. Cavalier, Thomas J. Kavaler, Cahill, Gordon & Reindel, LLP, Edward N. Moss, Jonathan Rosenberg, O'Melveny & Myers, David J. Fioccola, Jessica Kaufman, Mark P. Ladner, Morrison & Foerster, Andrew A. Ruffino, Covington & Burling LLP, New York, NY, Margaret M. Sheahan, Robert Burdette Mitchell, Mitchell & Sheahan, P.C., Stratford, CT, James H. Bicks, Thomas F. Clauss, Jr., Wiggin & Dana LLP, Thomas J. Donlon, Robinson & Cole LLP, Thomas D. Goldberg, Day Pitney LLP, Stamford, CT, Kenneth M. Kliebard, Gregory T. Fouts, Howrey LLP, Romeo S. Quinto, Jr., Morgan, Lewis & Bockius, L.L.P., Chicago, IL, James K. Robertson, Jr., Sarah S. Healey, Carmody Torrance Sendak & Hennessey, LLP, Rowena Amanda Moffett, Brenner, Saltzman & Wallman, New Haven, CT, Pierre–Yves Kolakowski, Zeichner, Ellman & Krause, Greenwich, CT, Robert D. Wick, Covington & Burling, LLP, Washington, DC, John Warren Herrington, John C. Pitblado, Carlton Fields Jorden Burt, P.A., Robert D. Helfand, Jorden Burt, Simsbury, CT, Carl Alan Roth, Eric S. Waxman, Lance A. Etcheverry, Robert B. Cummings, Skadden, Arps, Slate, Meagher & Flom, Los Angeles, CA, James T. Shearin, Steven J. Stafstrom, Jr., Pullman & Comley, Philip C. Pires, Stewart I. Edelstein, Cohen & Wolf, Bridgeport, CT, Bryan James Orticelli, Day Pitney LLP, Michael T. McCormack, William H. Champlin, III, Hinckley Allen Snyder

LLP, Hartford, CT, Bradley S. Keller, Joshua B. Selig, Byrnes Keller Cromwell, LLP, Seattle, WA, for Defendants.

MEMORANDUM OF DECISION GRANTING BANK DEFENDANTS' MOTION TO DISMISS [DKT. 180]

VANESSA L. BRYANT, District Judge.

I. Introduction

The Plaintiffs, Debra Miller (“Miller”), Brittany DiCarolis (“DiCarolis”), Hope Kelm (“Kelm”), Jennie H. Pham (“Pham”), Brett Reilly (“Reilly”), Juan M. Restrepo (“Restrepo”), Brian Schnabel, Edward Schnabel, Lucy Schnabel, Annette Sumlin (“Sumlin”), Regina Warfel (“Warfel”), and Debbie Williams (“Williams”), bring this proposed class action against three categories of Defendants, the Trilegiant Defendants, which includes Affinion Group, LLC (“Affinion”), Trilegiant Corporation, Inc. (“Trilegiant”), and Apollo Global Management, LLC (“Apollo”), the Credit Card Defendants, which includes Bank of America, N.A. (“Bank of America”), Capital One Financial Corporation (“Capital One”), Chase Bank USA, N.A. (“Chase”), Citibank, N.A. (“Citibank”), Citigroup, Inc. (“Citigroup”), Chase Paymentech Solutions, LLC (“Paymentech”), and Wells Fargo Bank, N.A. (“Wells Fargo”), and the E–Merchant Defendants, which includes 1–800–Flowers.com, Inc. (“1–800 Flowers”), Beckett Media LLC (“Beckett”), Buy.com, Inc. (“Buy.com”), Classmates International, Inc. (“Classmates”), Days Inns WorldWide, Inc. (“Days Inns”), Wyndham WorldWide Corporation (“Wyndham”), FTD Group, Inc. (“FTD”), Hotwire, Inc. (“Hotwire”), IAC/InterActiveCorp (“IAC”), Shoebuy.com, Inc. (“Shoebuy”), PeopleFindersPro, Inc. (“PeopleFinder”), Priceline.com, Inc. “Priceline”), and United Online, Inc. (“United Online”).

The Plaintiffs allege several causes of action against the Defendants, including violations of the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. § 1962(c) (RICO), against all Defendants; conspiring to violate RICO, 18 U.S.C. § 1962(d), against all Defendants; aiding and abetting RICO, 18 U.S.C. §§ 1961 –1968, against the Credit Card Defendants; aiding and abetting commissions of mail fraud, 18 U.S.C. § 1341, wire fraud, 18 U.S.C. § 1343, and bank fraud, 18 U.S.C. § 1344, against the Credit Card Defendants; violations of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 et seq. (ECPA), against Trilegiant, Affinion, and the E–Merchant Defendants; aiding and abetting ECPA violations under 18 U.S.C. §§ 2510 et seq., against the Credit Card Defendants; violations of the Connecticut Unfair Trade Practices Act, Conn. Gen.Stat. § 42–110a et seq. (CUTPA), against the Trilegiant Defendants and E–Merchant Defendants; aiding and abetting and conspiracy to violate CUTPA, Conn. Gen.Stat. § 42–110a et seq., against the Credit Card Defendants; violations of the California Business and Professional Code § 17602 (Automatic Renewal Statute), against the Trilegiant Defendants and E–Merchant Defendants; and claims of unjust enrichment against all Defendants.

Before the Court is the Banks' Motion to Dismiss, filed by Bank of America, Capital One, Chase, Paymentech, Citibank, Citigroup, and Wells Fargo [Dkt. 180; Memorandum of Law in Support, Dkt. 181–1, hereinafter “MTD”]. The Credit Card Defendants move to dismiss the Plaintiffs' Consolidated Amended Class Action Complaint (the “Complaint”) for failure to state a claim upon which relief can be granted. [Dkt. 141, hereinafter “CAC at ¶ ”]. For the reasons stated below, the motion to dismiss is GRANTED.

II. Background

A full recitation of the background and facts is set forth in the Court's Memorandum of Decision Granting In Part and Denying In Part Defendants' Motion to Dismiss Plaintiffs' Consolidated Amended Complaint or, in the Alternative, to Strike Portions of the Complaint [Dkt. 276, hereinafter “Court Order at Dkt. 276”].

III. Standard of Review

“ ‘To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Sarmiento v. United States, 678 F.3d 147, 152 (2d Cir.2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). While Rule 8 does not require detailed factual allegations, “[a] pleading that offers labels and conclusions or formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citations and internal quotation marks omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ' ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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.” Id. (citations and internal quotation marks omitted).

In considering a motion to dismiss for failure to state a claim, the Court should follow a “two-pronged approach” to evaluate the sufficiency of the complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.2010). “A court ‘can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.’ ” Id. (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ). “At the second step, a court should determine whether the ‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’ ” Id. (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citations and internal quotation marks omitted).

In general, the Court's review on a motion to dismiss pursuant to Rule 12(b)(6) “is limited to the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated by reference.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007). The Court may also consider “matters of which judicial notice may be taken” and “documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993) ; Patrowicz v. Transamerica HomeFirst, Inc., 359 F.Supp.2d 140, 144 (D.Conn.2005).

IV. Discussion

The Credit Card Defendants (the “Defendants”) move to dismiss several of the Plaintiffs' claims for failure to state a claim upon which relief may be granted.

1. RICO Claims

The Defendants move to dismiss the Plaintiffs' RICO claims on several grounds. “First, Plaintiffs do not allege that the [Credit Card Defendants] ‘directed the affairs' of an alleged RICO enterprise, as required by controlling precedent.

Second, Plaintiffs fail to allege facts sufficient to establish that the [Credit Card Defendants] committed predicate acts of racketeering. Third, Plaintiffs fail to allege facts sufficient to establish that the [Credit Card Defendants] caused the Plaintiffs' alleged injury.” MTD p. 11. For similar reasons, the Defendants argue that the Plaintiffs' RICO conspiracy claim must also fail.Id. These issues have already been addressed in the Courts Order at Dkt. 276. In that Order, the Court dismissed the Plaintiffs' substantive RICO claims and their RICO conspiracy claims. This issue, therefore, is moot as it was already dismissed.¹ However, the Plaintiffs also allege an aiding and abetting charge only against the Credit Card Defendants. Since that claim has not yet been addressed, it is ripe for decision.

2. Aiding and Abetting RICO and Wire, Mail, and Brank Fraud

The Defendants argue that Count III and IV of the Complaint must be dismissed because there is no independent cause of action for aiding and abetting RICO violations or for aiding and abetting the commission of mail, wire, or bank fraud. MTD p. 31–32. In the alternative, they argue that even if there is such a cause of action, the...