Ward v. Theladders.Com, Inc.

Decision Date21 April 2014
Docket NumberNo. 13 Civ. 1605 (JGK).,13 Civ. 1605 (JGK).
Citation3 F.Supp.3d 151
PartiesBarbara WARD, et al., Plaintiffs, v. THELADDERS.COM, INC., Defendant.
CourtU.S. District Court — Southern District of New York

OPINION TEXT STARTS HERE

Joseph Ignatius Marchese, Neal Jamison Deckant, Scott A. Bursor, Yitzchak Kopel, Bursor & Fisher, P.A., New York, NY, for Plaintiffs.

Maura Barry Grinalds, Patrick George Rideout, Robert Lynch Dunn, Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, for Defendant.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

This action arises out of the operation and use of a job-matching website, TheLadders.com. The plaintiffs, Barbara Ward, Joseph Garcia, Robin Lynn, Timothy Morris, David Reading, and Philip Wilton, who are former premium-paying users of the website (“premium members”), brought this purported class action against the defendant, TheLadders.com, Inc. (TheLadders). The plaintiffs allege that the defendant made false promises and representations regarding, among other things, the quality, specifications, and availability of job postings on the website, and that the defendants induced subscribers to purchase resume rewriting services through false representations.

The plaintiffs allege claims for breach of contract, breach of implied covenant of good faith and fair dealing, rescission of contract, money had and received, common-law fraud, unjust enrichment, and violationsof the New York General Business Law § 349, the Washington Consumer Protection Act, and the California Unfair Competition Law. The plaintiffs assert subject-matter jurisdiction pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d)(2), because: there are more than one hundred class members; the aggregate amount in controversy exceeds five million dollars; and there is partial diversity of citizenship in that the defendant is a citizen of New York and at least one plaintiff is a citizen of a different state. The defendant now moves to dismiss the Second Amended Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons explained below, the motion is granted in part and denied in part.

I.

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007); Arista Records LLC v. Lime Grp. LLC, 532 F.Supp.2d 556, 566 (S.D.N.Y.2007). The Court's function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). The Court should not dismiss the complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id.

When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002).

II.

The Court accepts the following allegations in the plaintiffs' Second Amended Complaint as true for purposes of this motion to dismiss. Defendant TheLadders, a Delaware corporation with its principal place of business in New York, operated a job-matching website, TheLadders.com (the “website”), which charged a premium subscription fee for members to access job postings on the website. (2d Am. Compl. (“SAC”) ¶¶ 2, 16.) The website provided different subscription options to the members. The “free basic” subscription allowed members to review job listings but did not allow the members to apply for the positions. (SAC ¶ 33.) The “premium” membership, at a cost of $30 per month or $180 per year, allowed members to apply for the positions. (SAC ¶ 33.) The named plaintiffs were premium members of the website at various times from 2003 to around December 2010. (SAC ¶¶ 64, 74, 88, 98, 105, 110.).

In order to access the website, members were required to agree to the website's “Terms of Use,” which were subject to revision from time to time. (SAC ¶ 21; see also Addonizio Decl. Exs. 3, 4, 5, 6, and 7.) In addition to setting forth various duties and obligations, the Terms of Use provided, at all times relevant to this action, that other sections or pages on the website “may contain separate terms and conditions” and that these terms and conditions were “in addition to” the terms and conditions in the Terms of Use. (SAC ¶ 22.) The Terms of Use further provided that those “additional terms and conditions” would govern in the event of a conflict with the Terms of Use. (SAC ¶ 22.) Moreover, the Terms of Use as revised on June 30, 2010 also stated under the “About Our Site” section that TheLadders “reviews each job listing found online or submitted by recruiters and employers before it's posted to ensure it meets the criteria of a $100K+ position.” (Addonizio Decl. Ex. 3 (“June 2010 Terms of Use”) at 1.) 1

The website contained representations about the nature and quality of the jobs as well as the services provided. For example, the website displayed words and slogans representing the website to be “a premium job site for only $100K+ jobs” where [e]xperts pre-screen all jobs so they're always 100K+” and members would “find hand-selected and pre-screened jobs that are $100K+.” (SAC ¶¶ 20, 24, 25). Each of the named plaintiffs allegedly relied on such representations in signing up for the premium membership. (SAC ¶¶ 66, 76, 90, 100, 107, 112.) TheLadders made similar representations in the TV commercials, advertising the website as a “premium job site for only $100K+ jobs and only $100K+ talent.” (SAC ¶¶ 42, 43.).

However, the plaintiffs allege that the website simply “scraped” job postings from other websites without authorization and that TheLadders did not review the job listings to ensure that each job listing was a “$100K+” job or that the jobs posted were still open. (SAC ¶¶ 31, 32.) As a result, many of the job listings, including some for which the plaintiffs applied or inquired into, were not open or, even if open, would pay substantially less than $100,000 a year. (SAC ¶¶ 38, 108–09, 113–15.).

In addition, TheLadders allegedly engaged in deceptive conduct with respect to the website's “expert resume critique” service. TheLadders provided to its premium members what it purported to be an “expert resume critique” service. (SAC ¶ 48.) However, TheLadders allegedly did not actually provide bona fide resume critiques when premium members submitted their resumes for review. (SAC ¶ 49.) Instead, the “expert resume critique” service was allegedly a scheme through which TheLadders attempted to sell its resume rewriting service. (SAC ¶ 50.) The purported “experts” who issued the “expert resume critiques” were salespeople with no qualification in the field of resume consulting. (SAC ¶ 51.) The resume critique letters were form letters drafted by salespeople from a crib-sheet regardless of whether the submitted resumes were already well-written, so that members would be induced to purchase resume rewriting service. (SAC ¶¶ 53–55.) Salespeople would earn $10 in commission for each person to whom they sold the resume rewriting service. (SAC ¶ 52.) Allegedly misled by the resume critiques and not knowing that the critiques were form letters created by salespeople,plaintiffs Garcia, Lynn, and Morris purchased the resume rewriting service from TheLadders at costs ranging from $495 to $1,820. (SAC ¶¶ 69–70, 83–84, 92–93.).

The plaintiffs brought this action for breach of contract (Count I), rescission of contract (Count II), breach of implied covenant of good faith and fair dealing (Count III), money had and received (Count IV), common-law fraud (Count V), violations of New York's General Business Law (GBL) § 349 (Count VI), unjust enrichment (Count VII), and violations of consumer protection laws of Washington and California, respectively (Count VIII and IX).

III.

The plaintiffs' first claim is for breach of contract. Under New York law, the elements of a cause of action for breach of contract are: (1) the existence of a contract, (2) the plaintiff's performance under the contract, (3) the defendant's breach of the contract, and (4) resulting damages.” Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 A.D.3d 804, 921 N.Y.S.2d 260, 264 (2011). “Generally, a party alleging a breach of contract must demonstrate the existence of a contract reflecting the terms and conditions of their purported agreement.” Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 919 N.Y.S.2d 465, 944 N.E.2d 1104, 1110 (2011) (internal quotation marks and citation omitted).

The parties dispute what, if any, terms and conditions the defendant breached by allegedly failing to provide job postings and services meeting the plaintiffs' expectations.

A.

First, the plaintiffs rely on the following language under the “About Our Site” section of the June 2010 Terms of Use: “TheLadders reviews each job listing found online or submitted by recruiters and employers before it's posted to ensure it meets the criteria of a $100K+...

To continue reading

Request your trial
54 cases
  • Orellana v. Macy's Retail Holdings, Inc., 17 Civ. 5192 (NRB)
    • United States
    • U.S. District Court — Southern District of New York
    • July 10, 2018
    ..."promotional representations were therefore knowingly deceptive." Id. at 326, 774 N.E.2d 1190. Similarly, in Ward v. TheLadders.com, Inc., 3 F. Supp. 3d 151, 168-69 (S.D.N.Y. 2014), the defendant operator of a job placement website argued that representations on its website about the qualit......
  • Elaine Aghaeepour, Ashley Glasgow, Julie Higgins, Shane Moore, Michele Norris, Jesus Rivera, Schilco, Inc. v. N. Leasing Sys., Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • December 1, 2015
    ...clauses selecting New York law and New York courts for litigation arising out of theagreement." Ward v. TheLadders.com, Inc., 3 F. Supp. 3d 151, 167-68 (S.D.N.Y. 2014), reconsideration denied (Apr. 21, 2014) (citing Cruz, 720 F.3d at 123-24). In this case, the pleadings contain a number of ......
  • Graham v. Select Portfolio Servicing, Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • January 18, 2016
    ...Havell Capital Enhanced Mun. Income Fund, L.P. v. Citibank, N.A., 84 A.D.3d 588, 923 N.Y.S.2d 479, 481 (2011) ; Ward v. TheLadders.com, Inc., 3 F.Supp.3d 151, 164 (S.D.N.Y.2014). The Verified Complaint alleges that “[a]s a result of Defendant's actions related to the Loan Modification Agree......
  • Lugones v. Pete & Gerry's Organic, LLC
    • United States
    • U.S. District Court — Southern District of New York
    • February 21, 2020
    ...nature of the transaction by the exercise of ordinary intelligence, and fails to make use of those means.’ " Ward v. TheLadders.com, Inc. , 3 F. Supp. 3d 151, 166 (S.D.N.Y. 2014) (internal citation omitted) (quoting first DDJ Mgmt., LLC v. Rhone Grp. L.L.C. , 15 N.Y.3d 147, 155, 905 N.Y.S.2......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT