Road Runner Class Hurtles Suit Off Canyon

MANHATTAN (CN) - Road Runner Internet subscribers ruined their class action by misquoting an advertisement they claimed to be deceptive, the 2nd Circuit ruled.

Lead plaintiffs Jessica Fink and Brett Noia said they signed up with Time Warner, and paid up to 100 percent more than competitors charged, because of misleading advertisements about Road Runner's "blazing speed" and "always-on connection" that made it the "fastest, easiest way to get online."

Those speeds slowed, the subscribers said, when a user tries to share content on peer-to-peer (or P2P) file-sharing networks like BitTorrent, Gnutella and Skype. The lawsuit blamed this on "throttling," a tactic supposedly used to limit bandwidth.

Though they advanced on two of their claims in September 2011, U.S. District Judge Laura Taylor Swain eventually dismissed the second amended complaint, prompting an appeal.

A three-judge panel of the 2nd Circuit affirmed Thursday.

The unsigned opinion states that New York and California law requires those who sue a company for consumer fraud to show that its advertisements would mislead a reasonable consumer.

But the judges said they found the allegedly deceptive ads that the plaintiffs submitted "perplexing."

"The advertisement that they offer is dated August 7, 2009 - nine months after plaintiffs filed suit," the judges wrote. "In addition, the advertisement contains only one of the four misstatements alleged in the complaint. The 'always-on,' 'blazing speed,' and 'fastest, easiest way to get online' allegations are still missing any source document." (Emphasis in original.)

In a footnote, the judges said they requested a copy of an Internet ad that Time Warner printed out less than a week after being sued. Couched in "multiple disclaimers and explanatory language," the ad said, "Actual speeds may vary," according to the ruling.

"A plaintiff who alleges that he was deceived by an advertisement may not misquote or misleadingly excerpt the language of the advertisement in his pleadings and expect his action to survive a motion to dismiss or, indeed, to escape admonishment," the opinion states.

Attorneys for neither party immediately responded to a request for comment.

Judges Jose Cabranes, Denny Chin and Susan Carney issued the opinion.

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