Data Playing Poker on Star Trek

At a Christie’s auction, Moustakis won bids for approximately $25,000 for items that allegedly appeared on Star Trek, The Next Generation – a poker table and Star Trek uniform and poker visor allegedly worn by actor Brent Spiner, who plays the character “Data” on the show. (Also sold were a six and a half foot model of the Starship Enterprise for over a half million dollars and another uniform and pants allegedly worn by Spiner/Data sold for almost $10,000.) Moustakis claims that after having a conversation with Spiner at a convention, he discovered that the items were never actually worn on the show. Further investigations lead Moustakis to believe the items were fake, although it is unknown to me what led him to that conclusion.

The bottom line? The judge ruled that Christie’s warranties and limitations of liability insulated the auction house. I’m not sure I was altogether satisfied with the explanation although there are many facts here that we don’t know about this sensational case. It is alleged (and which may have been introduced into evidence) that Christie’s had posted incorrect information that was revised in a handout provide to live bidders – in addition to a correction made before the auction. Despite  this disclaimer, the plaintiff apparently claimed that Christie’s had knowledge of numerous duplicate items that Paramount (studio creating Star Trek) was warehousing and which never appeared on the show. Moustakis apparently discovered several identical items available on eBay for less than half the price he paid, as well as differentiation the poker table on the show from the one he had bought.

Certainly I can understand the disappointment of the bidder but several million dollars worth of damages?

2009 NY Slip Op 09543

Decided on December 22, 2009

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 22, 2009

Sweeny, J.P., Catterson, Renwick, Freedman, Abdus-Salaam, JJ.

1847 117179/07

[*1]Ted Moustakis, Plaintiff-Appellant,

v

Christie’s, Inc., et al., Defendants-Respondents.

Jeffrey Benjamin, P.C., Forest Hills (Jeffrey Benjamin of counsel), for appellant.

Levine Sullivan Koch & Schulz, L.L.P., New York (Nicole A. Auerbach of counsel), for respondents.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered October 7, 2008, which granted defendants’ motion to dismiss the complaint to the extent of dismissing all causes of action related to one of the items purchased by plaintiff, as well as the claims for fraud, negligent misrepresentation and violation of the General Business Law relating to all items, and the demands for punitive damages, unanimously affirmed, without costs.

This action arises out of an auction of memorabilia from the Star Trek television series and motion pictures. Contrary to plaintiff’s contention that defendant Christie’s had represented the Commander Data uniform to be one of a kind, no such representation was ever made in the auction catalogue. Significantly, the Conditions of Sale, which plaintiff accepted in order to be allowed to participate in the bidding process, expressly declared that “all property is sold as is’ without any representation or warranty of any kind by Christie’s or the seller.” UCC 2-316(3)(a) recognizes that “unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like as is’ . . . which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.”

Even assuming there was a breach of contract or warranty as to the other two items purchased by plaintiff at the auction, he was, under the Conditions of Sale, contractually precluded from pursuing the massive recovery he now demands. The only remedy available to him thereunder would be a refund of the sale price(s) upon return of the item(s), a limitation generally permissible in contracts for the sale of goods (see UCC 2-719[1][a]).

The allegations of fraud and negligent misrepresentation are virtually identical to those upon which the causes of action for breach of contract and breach of warranty rest, and are thus duplicative, inasmuch as there is no pleading of the breach of a duty separate and apart from the contractual obligation owed to plaintiff. In that regard, it is axiomatic that “a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated” (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]).

Nor does plaintiff have a viable cause of action against these defendants under General Business Law § 349 or § 350. A party seeking those remedies must charge conduct that is consumer oriented, with an impact on the public at large (Canario v Gunn, 300 AD2d 332 [*2][2002]). Finally, the misconduct alleged here, which arises from a private contract, does not resemble the egregious wrongdoing that could be considered part of a pattern directed at the public generally, so as to warrant the imposition of punitive damages (see Garrity v Lyle Stuart, Inc., 40 NY2d 354, 358 [1976]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 22, 2009

As one would expect, there is history between the parties. Amanda Bonnen filed against Horizon after an incident in March when a contractor caused a roof leak that affected some of units at 4242 N. Sheridan Road. Horizon claimed no mold was found but conceded she experienced leaking into her apartment. According to a Horizon press release, “…all tenant grievances were quickly and amicably resolved, except Ms. Bonnen’s. She moved out of her unit on her own volition June 30, 2009 at which time there was no evidence of mold in her apartment.”

Apparently in the course of due diligence for Bonnen’s action, Horizon’s lawyers discovered the offending tweet. So what did Horizon do – have a conversation with Bonnen and demand its removal? Apparently not. Jeffrey Michael, whose family has run Horizon for more than 25 years, allegedly said: “The statements are obviously false, and it’s our intention to prove that… We’re a sue first, ask questions later kind of an organization,” noting that the family manages over 1,500 apartments in Chicago and wants to preserve its good reputation.

One can only wonder whether the repercussions from the negative publicity are greater than the damages sought over this single tweet.

Trina Thompson is suing Monroe College for her tuition money, finding that her college degree is not resulting in an instant job. She is also seeking $2,000 to deal with the stress she has been going  through looking for a full time job on her own without the perceived hand holding of the career placement office. What is important to note is that she’s suing pro se, by herself, and is not being represented by an attorney looking to break new ground. It’s a rough economy and it seems that everyone is looking to find money somewhere.

I haven’t yet received a copy of the complaint and whether the issue concerning Facebook is the allegation of StudiVZ copying actual Facebook code or whether it considers its own “innovations” to be unique and not the natural product of providing this kind of technology. From my research, apparently both arguments were made. With the launch of Friendster in 2002 and MySpace in 2003,  it is clear that other social networks and communities existed well prior to Facebook in 2004. Can Facebook be the first “true” iteration of social networking and a protectible product innovation? Mark Zuckerberg forked over $65 million to make such an issue go away, accused of pilfering the idea from his employer and leaving to apply it to a larger audience.

But in this case, Facebook does make a point – with every new feature Facebook puts out, it seems that a similar feature finds its way into the StudiVZ and is this right? Is it actionable? Facebook originally filed a lawsuit in California, leading StudiVZ to file in a German court in the hope of obtaining a “declaratory judgment” and asserting that Facebook’s claims lacked merit. The German court’s reasoning for its decision was that StudiVZ was not trying to unfairly pass itself off as Facebook. When it was founded in 2005, Facebook was virtually unknown in Germany. Facebook announced plans to potentially file an appeal in a higher German court but would be limited to only providing new evidence – perhaps a comparison of php files (a popular web programming language) to show that there was a direct infringement of copyright.

So let’s get to the fun stuff – looking at German clones (not humans, web sites) of Internet social networking and user generated content innovations and whether StudiVZ really goes too far in resembling Facebook. (My opinion is that the red color is positively irritating on the eyes – but that goes hand in hand with the German concept of “schadenfreude” or the reveling in the pain of others!)

This article is “tell and show” – before letting you do the fun final visual comparison of StudiVZ to Facebook, we’ll list the German equivalents of popular US web sites:

YouTube  = Sevenload
MySpace = UndDu
Flickr = Photocase
del.icio.us = Mister Wong
Yelp = Qype
Facebook = StudiVZ
Digg = Yigg
Blogger and LiveJournal = blog.de and twoday.net
Meebo = Mabber
Etsy      Dawanda
Cafepress      Spreadshirt
Slide      imageloop
Flixster      MoviePilot
Twitter      Frazr, Wamadu, Sloggen

Perhaps another version in forest green would be nice?

As most should know who join virtually any dating site including match.com, the world’s largest online dating service, you can put up a profile but you have to pay to play. On match.com, paying to play is to the tune of approximately $20-40 per month, depending upon the length of time you subscribe and the options you choose. But you don’t have to pay to check out the service – and that is obvious instantly when you create a profile. But McGinn believes that match.com bears the responsibility – and fails to deliver – to differentiate between who is a paying subscriber and who is not. As such, a man can pay for membership and write to endless women whom he does not know are non-payment members who cannot reply, causing him wasted time and heartbreak.

“When a subscriber cancels their subscription, their profile continues to appear to be that of an active subscriber, nothing indicates to the viewer their limited access to read e-mails or respond to them… Match derives a benefit from giving members ‘matches’ who can’t reply because the notifications that someone has expressed interest in them induces some non-subscribers to subscribe in some cases.”

So if McGinn didn’t understand the way match.com works, wouldn’t the match.com folks have given him his 40 bits back and avoided a class action lawsuit? Probably… but for people like Mr. McGinn, apparently the deep rooted pain doesn’t end there.

“Match defrauds the consumer of his/her time, labor, and emotional investment… Match’s policy causes humiliation and disappointment for some members of the Class who feel rejected when their e-mails get no reply… causes severe emotional distress and anxiety for some members of the Class, including those who keep writing e-mails to one member after another and never hear back from any because he/she is writing to people who’ve cancelled. Because the writer has no way of knowing this, he or she may experience profound personal anguish, suffering which is easily preventable by Match.”

The next part of the brief does make a point but it misses the mark by a mile. A member is reported as “active” whether they login to cancel an account, deal with a billing issue, or something other than an intent to find a date. Is that deceptive? I’m not sure how anyone can differentiate the reason why someone logged into their account until after the deed is done. Additionally, how many times will a member log in to cancel an account? 23 times per month? There are some legitimate points about raising the activity level on match.com in order to entice membership, but nothing compelling.

Now here is the reason why this firm should have hired me to perform some expert review of their case and complaint, LOL! I observed that when a user merely reads a private email message sent from match.com, the act of viewing the email triggers the user’s online status to “active!” Now that is a significantly misleading and deceptive tactic which other users have already complained about prior – the misleading representation that someone is active or has “logged in” when they have not, in fact, logged in or performed any activity with relation to the service.

Let’s take an example where boy meets girl for the first time and likes her. While he doesn’t want to lose her and appear to be insincere, he still will review his emails from those who reply to his prior love missives but won’t login to start a new connection. Unbeknownst to him and probably most users, match.com will report him as “active” not just be replying to an email that runs through the match.com system, but merely opening an email message that could be an advertisement that he’d like to put in the trash, the likely result of code embedded invisibly in the email. When the girl logs in (or has a friend do so) to check on the sincerity of the boy, he appears to be checking out women every day while insisting that he prefers to see her exclusively. Now this deliberate attempt to mislead non-members into thinking that there are far more active users than actually appear is deceptive and match.com profits from this deceptive practice.

Match.com has been accused of fraudulent conduct before – in 2005 a lawsuit was filed against match.com and Yahoo, alleging that attractive employees were required to go out on a set number of dates with elegible single men. This lawsuit was later dropped. So what is going to happen now in 2009? It’s difficult to say, but if this is litigated, it will provide us with some case law on what is and what isn’t considered a deceptive practice in the shady practice of trying to lead web site visitors to the conclusion that more “action” is happening on a web site than is truly occurring in the hopes of coaxing another membership fee. At the very worst, it will be an exercise in entertaining courtroom fodder meeting reality TV as it will expose the life of the latest forlorn 40-something New York male looking for love in all the wrong places… the New York Southern District Court… and you can download the complaint against match.com here.