Kramer Levin Wins Dismissal of Class Action Suit for Client Sirius XM Radio, Inc.

By Decision and Order entered on September 18, 2013, the Commercial Division of New York Supreme Court, New York County (Kornreich, J.) dismissed a putative class action against Kramer Levin client, Sirius XM Radio Inc. Claimants alleged that Sirius XM was improperly collecting a $2 Invoice Administration Fee from subscribers to its satellite radio service who paid their subscription fees by credit card. Plaintiffs alleged that Sirius XM’s Customer Agreement permitted it to collect the $2 Fee only from those who paid an invoice received from Sirius XM by check or money order. Plaintiffs alleged that Sirius XM violated New York’s consumer protection statute (General Business Law Sec. 349), breached the Customer Agreement and engaged in unjust enrichment. Justice Kornreich held that plaintiffs’ section 349 claim was barred by the applicable statute of limitations; that their breach of contract claim was precluded by a prior federal court decision; and that their unjust enrichment claim failed as a matter of law because it duplicated the breach of contract claim. Plaintiffs had previously brought their claims in federal court in Manhattan, and Kramer Levin had succeeded in getting the Section 349 claim limited to those members of the purported class who were allegedly deceived in New York (essentially, a putative class of New Yorkers), in getting the breach of contract claim dismissed for failure to allege a breach of specific language in the Customer Agreement, and then in getting the remaining part of the federal action dismissed for lack of subject matter jurisdiction (a ruling affirmed by the Court of Appeals for the Second Circuit). Plaintiffs filed the now-dismissed action in New York state court following the dismissal of the federal action.

The Kramer Levin team consisted of Litigation partners Michael S. Oberman and Robin Wilcox, Intellectual Property Department Chair Peter A. Abruzzese, Litigation associate Selina M. Ellis and Intellectual Property associate Aaron Frankel.

Law360 reported on the decision on September 19.