Cline v. TouchTunes Music Corp., 2016 WL 5478432, No. 14 Civ. 4744 (S.D.N.Y. Sept. 29, 2016)
A couple of general points from this state law class action over a music service: GBL Section 349 makes unlawful “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state,” and GBL Section 350 has similar wording for false advertising. Neither named plaintiff resided in New York or alleged that she accessed TouchTunes’ services or used a TouchTunes jukebox in New York.
The New York Court of Appeals has held that the transaction in which consumer is deceived must occur in New York for these provisions to apply. But the court’s analysis didn’t turn on residency “because the statute neither was intended to police out-of-state transactions by New York companies nor to bar out-of-state plaintiffs with claims based on New York transactions.” The Second Circuit has subsequently focused on where the relevant transaction took place, since there’s no per se bar on out-of-state plaintiffs.