Online Promotion Which Offered a Coupon to Persons Who Provided His or Her Email Address Did Not Constitute an “Offer” Which Could Be “Accepted” to Create a Contract/In Light of the Disclaimers the Promotion Was Not “Deceptive” and Plaintiff Suffered No “Actual Injury” within the Meaning of the General Business Law

Plaintiff brought a putative class action alleging an act of deception in an online business promotion.  Defendants “offered to provide to visitors to their website who entered their email address a $1 coupon toward the purchase of their products and further promotional materials.” The complaint alleged the members of the class provided their email addresses but never received a coupon. The Second Department determined the complaint, which alleged breach of contract and a violation of General Business Law 349, was properly dismissed. Because the website indicated the supply of coupons was limited, there was no clearcut “offer” which could form a contract upon acceptance. The online promotion constituted only an “invitation for offers.” Because of the disclaimers, the promotion was not “deceptive” within the meaning of General Business Law 349. Nor did the plaintiff suffer any “actual injury” within the meaning of General Business Law 349:

…[T]he defendants made a prima facie showing that the online promotion did not constitute an offer. Rather, it constituted only an invitation for offers, in light of the fact that the promotion expressly stated that the supply of coupons was “limited.” In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, extrinsic evidence was not admissible to interpret the promotional materials under the circumstances herein … . The record thus showed as a matter of law that the promotion did not create the power of acceptance for consumers and, consequently, no unilateral contract was formed… . * * *

[Re: General Business Law 349], in addition to showing that the conduct was consumer oriented, “[a] prima facie case requires . . . a showing that [the] defendant is engaging in an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof” … . “Whether a representation or an omission, the test is whether the allegedly deceptive practice is likely to mislead a reasonable consumer acting reasonably under the circumstances'” … . A plaintiff must also show that he or she suffered an actual injury, as a result of the deceptive act or practice… . …

…[T]he defendants … showed … that the plaintiff did not suffer any “actual injury,” for purposes of the General Business Law § 349 cause of action. To recover damages under General Business Law § 349, a plaintiff need not prove intent to defraud or justifiable reliance … . The plaintiff may not “set[ ] forth deception as both act and injury” … . Here, the record showed as a matter of law that the plaintiff suffered no actual injury, apart from the alleged deceptive act itself … . Amalfitano v NBTY, Inc., 2015 NY Slip Op 04077, 2nd Dept 5-13-15