It's not deceptive for the NY Jets and Giants to play in New Jersey

Suero v. NFL, 2022 WL 17985657, 22-CV-31 (AKH) (BCM) (S.D.N.Y. Dec. 16, 2022) (R&R)

Plaintiffs alleged ten falsehoods related to the New York Jets/Giants and their home stadium in New Jersey, where the Giants and the Jets have played for decades.

Plaintiffs demand that the Jets and the Giants remove all references to New York from their names, logos, and advertising, and pay damages to those they deceived. Additionally, plaintiffs demand that MetLife Stadium stop using a logo incorporating the New York City skyline and stop promoting itself as the “number one stadium in the world,” because, they say, it is inferior to many “state-of-the-art NFL venues elsewhere,” particularly those with domes or retractable roofs.

One plaintiff alleged that she was unaware that the Giants have played in New Jersey since 1976, and the Jets since 1984. Both plaintiffs alleged that they purchased tickets and attended at least one NFL game at MetLife Stadium in 2021, which they would not have done but for defendants’ false advertising. This allegedly caused them to incur significant travel costs and inconvenience.

Plaintiffs argued that, while other teams play outside of the “cities for which they are named,” the Jets and the Giants are “the only teams to play in an entirely different state,” and that this was similar to other state-origin cases.  (Footnote: The Washington Commanders play in Maryland, but plaintiffs said that didn’t matter because “D.C. is not a state, and Maryland and Virginia are both stand-in states for our nation’s capital.” “The Court [correctly] suspects that the residents of the District of Columbia, Maryland, and Virginia would disagree with that characterization.” Taxation without representation!)

Plaintiffs failed to allege complete diversity. They also failed under CAFA, even as to the makeup of the putative class, which would have to comprise “persons who, as a result of defendant’s alleged deceptions, personally attended one or more NFL games at MetLife Stadium since 2016, thereby incurring the cost of tickets, concessions, and transportation costs ‘to and from the MetLife Stadium from New York City.’ Common sense suggests that both classes (if certifiable) would prove to be small in size and composed largely of New Yorkers.” Without a price premium theory, the class is only those who were deceived into the journey, and excludes “those who willingly (or even grudgingly) made the trip with full knowledge that they were going to New Jersey.” Likewise, it was difficult to imagine that large numbers of non-New Yorkers were deceived into going to NYC in order to attend games.

But the judge also recommended dismissal on substantive grounds. First, plaintiffs failed to allege wrongdoing by the NFL.

Second, they didn’t plausibly allege deceptive conduct under the GBL. It is “well settled that a court may determine as a matter of law that an allegedly deceptive advertisement would not have misled a reasonable consumer.” In context, the retention of the geographic signifier “New York” by the Jets and the Giants, together with the use of a “New York City skyline logo” by MetLife was not plausibly deceptive. “It is common for a professional sports team to name itself after the city it calls its home while playing in the suburbs of that city (or, in some cases, even further away).” [Sports history omitted.] “[N]o reasonable football fan, ‘acting reasonably under the circumstances,’ would conclude from the names and logos of the Jets and the Giants that their stadium is within the five boroughs of New York City.” The MetLife Stadium website informed viewers that there was a “NJ Transit rail station” located in front of the stadium, and included what appeared to be a clickable map link showing the stadium just off the New Jersey Turnpike. “A reasonable consumer (even if she did not click through to Google Maps) would understand that New Jersey Transit goes to New Jersey, and that the New Jersey Turnpike is in New Jersey.”

Statements about stadium quality, e.g., that MetLife Stadium is “the number one stadium in the world,” and that it “sets the standard for venue excellence” were classic puffery. Statements that MetLife Stadium is “under 20 minutes from New York City” and “accessible to Penn Station” were not puffery, but also not plausibly false. The website did not promise a commute of “under 20 minutes”; it estimated travel time of “approximately 20 minutes” from Penn Station. Plaintiffs themselves alleged that they made that trip in 30 minutes on a game day (after first spending 30 minutes looking for the right platform at Penn Station). “Neither the extra ten minutes nor the need to change trains in Secaucus would mean, to a reasonable consumer, that the stadium is not ‘accessible’ from Penn Station, and neither, in any event, is ‘materially misleading,’ particularly given that route information, including actual travel time, is ‘publicly available’ from New Jersey Transit.” [This is an example of how borderline claims lead courts to tell consumers to consult external information, even though in general courts don’t require consumers to double-check information from an advertiser if it would be reasonable to believe them; caveat emptor is not the general rule.]

Separatenly, plaintiffs didn’t allege that they ever saw the MetLife Stadium website, much less that they were exposed to or relied on those statements, independently justifying dismissal.

Similar problems doomed the fraudulent misrepresentation claim. Indeed, you can see the old fraud reasoning both in the above and in what the judge says about the fraud claim:

Thirty seconds on the internet (or a glance at a map) would tell any consumer where the Jets and Giants play, the state in which MetLife Stadium is located, and how far it is from midtown Manhattan. Another thirty seconds, or a glance at a train schedule, would reveal how long it takes to get there from Penn Station. Whether or not plaintiffs did any of these things, they clearly “had the means of ascertaining the validity of the representations,” which is fatal to their fraud claims.