Case 1:21-cv-04995-JMF Document 100 Filed 08/12/22 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`MICHELI & SHEL, LLC, individually and on behalf
`of others similarly situated,
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`GRUBHUB INC., GRUBHUB INC. d/b/a
`SEAMLESS, SEAMLESS NORTH AMERICA,
`LLC, UBER TECHNOLOGIES INC., UBER EATS,
`POSTMATES LLC, and DOORDASH INC.,
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`Case No. 21-CV-04995 (JMF)
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`Plaintiff,
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`DEFENDANTS.
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`PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO
`DEFENDANT POSTMATES’ MOTION FOR JUDGMENT ON THE PLEADINGS
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`HELBRAUN & LEVEY LLP
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`Eric Dawson
`Lee Jacobs
`40 Fulton St., Fl. 28
`New York, NY 10038
`(212) 219-1193
`eric.dawson@helbraunlevey.com
`lee@helbraunlevey.com
`Attorneys for Plaintiff
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`Case 1:21-cv-04995-JMF Document 100 Filed 08/12/22 Page 2 of 17
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`Table of Contents
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`TABLE OF AUTHORITIES .......................................................................................................... II
`PRELIMINARY STATEMENT ..................................................................................................... 1
`ARGUMENT ................................................................................................................................... 3
`I. LOCAL LAWS PERMIT A PRIVATE RIGHT OF ACTION ............................................................ 3
`II. COMPLAINT PROPERLY STATES A CAUSE OF ACTION ........................................................... 8
`III. PLAINTIFF SHOULD BE GRANTED LEAVE TO REPLEAD IN LIEU OF DISMISSAL .................... 12
`CONCLUSION ............................................................................................................................. 14
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`Case 1:21-cv-04995-JMF Document 100 Filed 08/12/22 Page 3 of 17
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`Table of Authorities
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`Cases
`Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................ 8
`Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ..................................................................... 8
`Briarpatch, Ltd., L.P v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004) .............................. 11
`Brook v. Simon & Partners LLP, 783 Fed. Appx. 13 (2d Cir. 2019) ............................................ 13
`Doe v. Roe, 190 A.D.2d 463 (4th Dep’t 1993) ................................................................................ 6
`Harris v. Mills, 572 F.3d 66 (2d Cir. 2009) ..................................................................................... 8
`Maimonides Medical Center v. First United American Life Ins. Co., 116 A.D.3d 207 (2d Dep’t
`2014) ........................................................................................................................................ 6, 7
`New York Wheel Owner LLC v. Mammoet Holding B.V., 481 F. Supp. 3d 216 (S.D.N.Y. 2020) .. 3
`Schlessinger v. Valspar Corp., 817 F. Supp. 2d 100 (E.D.N.Y. 2011) ....................................... 5, 6
`Sheehy v. Big Flats Community Day, Inc., 73 N.Y.2d 629 (1989) .................................................. 3
`Uhr v. East Greenbush Cent. School Dist., 94 N.Y.2d 32 (1999) ........................................... 4, 5, 6
`Statutes
`FED. R. CIV. P. 15 .......................................................................................................................... 12
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`ii
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`Case 1:21-cv-04995-JMF Document 100 Filed 08/12/22 Page 4 of 17
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`Plaintiff MICHELI & SHEL, LLC, individually and on behalf of others similarly situated
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`(“Plaintiff”), respectfully submits this Memorandum of Law in opposition to the Defendant
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`Postmates LLC’s (“Postmates” or “Defendant”) motion for judgment on the pleadings.
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`PRELIMINARY STATEMENT
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`Plaintiff commenced this action on June 7, 2021, against Defendant, and other similar
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`third-party food delivery services, seeking to hold Defendant responsible for its unjust and illegal
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`fee increases designed to take advantage of Plaintiff, and others similarly situated, by profiting off
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`of the global COVID-19 Pandemic.
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`On March 7, 2020, due to the widespread COVID-19 Pandemic, former Governor Andrew
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`Cuomo declared a state of emergency for the entire State of New York. On March 16, 2020,
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`Governor Cuomo issued Executive Order Number 202.3 prohibiting restaurants and bars in the
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`State of New York from serving food or beverages on-premises due to the spread of COVID-19
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`and limiting orders to takeout or delivery only. Effective March 22, 2020, Governor Cuomo’s
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`“New York on Pause” Program began requiring all non-essential businesses to close in-office
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`functions. In the following days, weeks and months, as part of Governor Cuomo’s “New York
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`State on Pause” executive order, New York City residents were encouraged to stay home to prevent
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`the spread of COVID-19. Additionally, restaurants and bars were limited to providing take-out and
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`delivery services only creating an unprecedented demand for delivery services.
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`On May 13, 2020, the New York City Council, in an effort to curb the imbalance of power
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`between small, locally owned restaurants and powerful, national third-party delivery companies,
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`passed emergency legislation placing a cap on the exorbitant delivery fees that third-party delivery
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`companies such as Defendants were charging restaurants for their services. Effective June 2, 2020,
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`Local Law No. 52 of 2020, Council Int. No. 1908-B of 2020 (the “Delivery App. Legislation” or
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`Case 1:21-cv-04995-JMF Document 100 Filed 08/12/22 Page 5 of 17
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`“Local Law 52”) placed a twenty percent (20%) cap on all fees that Defendants could charge their
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`customers with a specific cap of fifteen percent (15%) on all fees charged for delivery and a five
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`percent (5%) cap for any additional fees including those for marketing, credit card processing or
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`any other fees. The Delivery App. Legislation was amended pursuant to Local Law No. 88 of
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`2020, Council Int. No. 2054-A of 2020 (the “Amended Delivery App. Legislation” or “Local Law
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`88”), effective September 14, 2020, to allow for “pass-through” costs, such as credit card fees, to
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`be charged to the restaurant above the fifteen percent (15%) and five percent (5%) fee caps.
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`Despite the passage of the Delivery App. Legislation and the Amended Delivery App.
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`Legislation, Defendants continued their prior practices of bleeding New York City’s restaurants
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`dry through exorbitant, prohibited fees while collecting millions of dollars at their expense in
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`blatant disregard for the laws of the City of New York. In fact, despite the passing of the Delivery
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`App. Legislation and the Amended Delivery App. Legislation, Plaintiff and the Class members,
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`continued to be charged in excess of the fifteen percent (15%) delivery fee cap and the five (5%)
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`cap on all additional fees.
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`This Class Action seeks to hold Defendant accountable for its predatory behavior toward
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`the businesses most impacted by the COVID 19 Pandemic. The Defendants extorted the Plaintiff
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`and other similarly situated Class members that were desperately dependent on its delivery services
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`during a time when the restaurant industry was experiencing a historic decline in sales and the
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`largest disruption the NYC restaurant industry had faced since Hurricane Sandy in 2012 and the
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`destruction of the Twin Towers on September 11, 2001.
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`Despite the well pleaded allegations of the Complaint, Defendant now seeks to avoid
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`responsibility for its actions by asking the Court to dismiss the Complaint for failure to state a
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`claim. Defendant’s arguments lack any merit. Although the Delivery App. Legislation and
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`Case 1:21-cv-04995-JMF Document 100 Filed 08/12/22 Page 6 of 17
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`Amended Delivery App. Legislation did not specifically set forth a private right of action, such a
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`private right of action can clearly be implied under the tests and analysis set forth by New York
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`jurisprudence. Further, Plaintiff’s allegations in the Complaint set forth factual, non-conclusory
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`statements establishing claims against Defendant that are plausible on their face. There is no basis
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`to dismiss the Complaint and Defendant’s motion should be denied in its entirety.
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`ARGUMENT
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`I.
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`Local Laws Permit a Private Right of Action
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`Although Local Laws 52 and 88 did not specifically carve out a private right of action,
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`neither do they exclude one, or insulate Defendant from the liability it faces under already extant
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`causes of action.
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`Plaintiff acknowledges that the statutes do not expressly create a private right of action.
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`However, it is appropriate for the Court to find that there is, in fact, an implied private right of
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`action. As stated in Postmates’ Memorandum of Law in Support, the three factors considered by
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`courts in assessing whether there can exist a private right of action are: “(1) whether the plaintiff
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`is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of
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`a private right of action would promote the legislative purpose; and (3) whether creation of such a
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`right would be consistent with the legislative scheme.” New York Wheel Owner LLC v. Mammoet
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`Holding B.V., 481 F. Supp. 3d 216, 238 (S.D.N.Y. 2020) (citing Sheehy v. Big Flats Community
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`Day, Inc., 73 N.Y.2d 629, 633 (1989)).
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`It is indisputable that Plaintiff, individually and as class representative, a restaurant that
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`utilizes online delivery providers, is a member of the class for whom the laws were enacted to
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`benefit. It is equally undisputable that recognition of a private action would further the legislative
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`purpose of the laws by allowing Plaintiff, and similarly situated entities, to recover from Postmates,
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`and similar defendants, amounts improperly charged in contravention of the laws. Postmates does
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`not argue that these factors weigh in its favor and implicitly concedes that they are satisfied in this
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`case by not addressing them.
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`To be clear, factor one is met because Plaintiff is a restaurant operating in New York City
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`that, during the effective period of the laws, used third-party food delivery services. The laws
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`were specifically designed to limit the fees that third-party food delivery services could charge
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`restaurants that use their services. Plaintiff is clearly among the class the City Council sought to
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`benefit.
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`Factor two is met because the purpose of the legislation was clearly to establish limits on
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`fees that could be charged by such third-party food delivery services and to impose financial
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`consequences for the violation of such limits including, inter alia, restitution for the amounts
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`overcharged. Permitting a private right indisputably promotes that purpose by creating an avenue
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`by which restaurants, the entities directly benefitted by the statute and negatively affected by its
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`violation, can seek the remedy provided for in the statute.
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`The true dispute, therefore, rests in the third factor and whether a private right of action is
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`consistent with the legislative scheme. When analyzing the third prong of the Sheehy factors to
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`determine if there is “consistency”, courts should consider whether a private right of action can
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`“further a legislative goal and coalesce smoothly with the existing statutory scheme.” Uhr v. East
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`Greenbush Cent. School Dist., 94 N.Y.2d 32 (1999). A private right of action coalesces perfectly
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`with the statutory scheme set forth in these two statutes and merely provides an additional manner
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`for the law to be enforced to obtain the precise result intended by the City Council.
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`The cases cited to by Defendant in its motion for judgment on the pleadings are
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`inapplicable to the facts here. The cases cited involve findings for reasons not found in this case.
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`For example, when a private right of action would effect unintended financial penalties. Defendant
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`cites to Uhr for the notion that the New York Court of Appeals found “no implied private right of
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`action under New York law where [the] legislature ‘clearly contemplated administrative
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`enforcement.’” Defendant’s Memo of Law in Support at 6. Defendant’s description of that holding,
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`however, is misleading at best.
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`Despite Defendant’s suggestion to the contrary, the Court of Appeals in Uhr did not rest
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`its decision on the fact that the statute provided for administrative enforcement—noting only that
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`the plaintiff’s argument therein, that a private right of action was imperative because no other
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`means of enforcement existed, was incorrect. In fact, in the very next sentence, the Court goes on
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`to state: “The question then becomes whether, in addition to administrative enforcement, an
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`implied private right of action would be consistent with the legislative scheme.” Uhr v. East
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`Greenbush Cent. School Dist., 94 N.Y.2d at 40 (1999). Instead, the decision that no private right
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`of action existed was based on “the Legislature’s concern over the possible costs to the school
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`districts—as evidenced by the statutory immunity provision and the other legislative statements
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`reflecting those concerns.” Id. at 42. Finding an implied right of action would not create that same
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`concern here because the City Council did not express any intent to provide Defendant immunity
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`or protect it from the costs of a private right of action. In fact, the exact opposite is true, and the
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`Local Laws specifically make Defendant liable for the cost of restitution.
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`Defendant is also mistaken in its reliance upon Schlessinger v. Valspar Corp., 817 F. Supp.
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`2d 100 (E.D.N.Y. 2011). That case is inapposite because the nature of the remedies provided by
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`the statute involved in Schlessinger are completely different than the remedies provided for here.
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`The sole remedy provided for in the statue in Schlessinger was that violations
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`shall be punishable by a civil penalty of not more than three hundred dollars
`recoverable in an action by the attorney general in the name of the people of the
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`state or by the corporation counsel for any city or by the appropriate attorney of any
`other political subdivision as shall be designated by the governing body of such
`political subdivision.
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`Schlessinger v. Valspar Corp., 817 F. Supp. 2d 100 at 104 (E.D.N.Y. 2011). Accordingly, the
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`only recovery available was a civil penalty recoverable only by the government.
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`No such concerns are present here as were determinative in Uhr and Schlessinger. There
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`was clearly no intent to immunize third-party food delivery services or shield them from financial
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`recovery for their violations, and the remedies provided in the statutes specifically provide for the
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`recoupment of overcharged fees. Among the relief specifically intended by the statutes is
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`“[r]estitution of an amount not to exceed the amount of fees collected by a third-party food delivery
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`service that exceeded the maximum amounts permitted pursuant to this subchapter.” Local Law
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`No. 52, N.Y. City Council (2020). Analysis of the third prong does not stop upon merely deciding
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`that administrative enforcement is possible. The analysis must continue, and the Court must
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`determine if a private right of action would impede the legislative scheme or “if it would merely
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`provide an additional enforcement mechanism at the hands of those persons affected by a violation
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`of that law and those whom the Legislature has deemed in need of protection.” Doe v. Roe, 190
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`A.D.2d 463, 471 (4th Dep’t 1993). Plaintiff maintains the latter.
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`More applicable to the facts in this case is the decision in Maimonides Medical Center v.
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`First United American Life Ins. Co., 116 A.D.3d 207 (2d Dep’t 2014). In Maimonides, the Second
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`Department found that although there was no explicit private right of action, the “benefits flowing
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`from the facilities’ obligations inured directly and personally to the individual residents, who
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`had private, contractual relationships with the facilities and, thus, any violations committed by the
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`facilities directly and adversely affected these individuals.” Maimonides Medical Center, 116
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`A.D.3d at 215 (emphasis added). Similarly, here, Plaintiff has a private contractual relationship
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`with the Defendant directly resulting in Plaintiff being “directly and adversely” affected by
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`Defendant’s violations of the law and overcharging fees. Therefore, the facts of this case also
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`“militate[] in favor of the recognition of an implied right of action to enforce such rights.” Id. at
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`214.
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`Defendant argues that Local Law 100—which rendered the temporary fee caps contained
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`in Local Laws 52 and 88 permanent and includes a private right of action—should be read to mean
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`that there was no private right of action in the earlier laws. To the extent that such an argument is
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`not a red herring, it weighs in favor of finding a private right of action. The inclusion of an explicit
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`private right of action in a subsequent law does not show that there was no implied private right of
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`action previously. Cf. Maimonides Medical Center, 116 A.D.3d at 220–21 (finding an implied
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`private right of action despite the failure of subsequent legislative efforts to establish an explicit
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`private right of action). However, if the Court were to consider subsequent legislative action, the
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`passing of Local Law 100 actually demonstrates that a private right of action is consistent with the
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`legislative scheme of the earlier laws. This is evidenced by the fact that a private right of action is
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`now explicitly provided for with no major changes to the administrative enforcement remedies—
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`which remain the same under Local Law 100 as they were in Local Laws 52 and 88. The
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`administrative enforcement mechanism of the earlier statutes survived the passing of Local Law
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`100 and are apparently unencumbered by the explicit inclusion of a private right of action. In other
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`words, the private right of action “coalesces smoothly” with the administrative remedies.
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`It is clear that Plaintiff is among the class of people the City Council sought to protect, a
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`private right of action would support the City Council’s goals in passing the statutes, and the
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`recognition of an additional enforcement mechanism that can be utilized directly by the persons
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`affected to obtain relief specifically provided for in the statutes would advance, not impede, the
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`legislative scheme.
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`II.
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`Complaint Properly States a Cause of Action
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`Defendant is also incorrect in its assertion that Plaintiff has failed to state a claim. At the
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`motion to dismiss stage, Plaintiff’s Complaint “must contain sufficient factual matter, accepted as
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`true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the
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`plaintiff pleads factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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`(internal citations and quotations omitted); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544
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`(2007). In considering the Complaint, this Court must “tak[e] its factual allegations to be true and
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`draw[] all reasonable inferences in the plaintiff’s favor.” Harris v. Mills, 572 F.3d 66, 71 (2d Cir.
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`2009).
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`The Complaint’s allegations clearly make out claims for violations of Local Laws 52 and
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`88, as well as a claim for unjust enrichment. Even the language from the Complaint quoted by
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`Defendant in its motion papers is alone sufficient to allege claims against Postmates.
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`Paragraph 63 of the Complaint sets out that:
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`Postmates also blatantly violated caps imposed by the Delivery App. Legislation
`by continuing to charge Plaintiff fees in some cases as high as twenty-seven and a
`half percent (27.5%) of the total order. These practices did not change following
`the enactment of the Amended Delivery App. Legislation as Postmates set up a flat
`twenty percent (20%) “commission” fee which again violated the spirit and the
`letter of the Delivery App. Legislation.
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`Complaint ¶ 63. None of Defendant’s attacks on this allegation survive even a minimal review.
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`First, Defendant claims that “[t]he Complaint does not specify when the orders in question
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`were placed”. Defendant’s Memo of Law in Support at 8. The allegation very clearly sets forth
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`that violations were committed by Defendant between the date that the Delivery App. Legislation
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`was enacted and the enactment of the Amended Delivery App. Legislation, and that subsequent
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`violations were also committed after the enactment of the Amended Delivery App. Legislation.
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`Second, Defendant claims that the Complaint fails to allege “how plaintiff determined that
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`it was charged ‘fees’ totaling 27.5% ‘of the total order’”. Defendant’s Memo of Law in Support at
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`8. Notably, Defendant relegates the crux of this argument to a mere footnote, arguing that there is
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`a distinction between the definition of “purchase price” and “the total cost to the customer of an
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`online order.” Memo of Law in Support at 8, fn. 13. The Complaint, however, does not address
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`“the total cost to the customer of an online order” and Defendant does not explain the reference.
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`Instead, the Complaint cites to the Local Laws and alleges that Defendant charged fees in excess
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`of the limits imposed therein. Any fair reading of the Complaint would find that the Complaint
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`alleges that the Defendant’s fees were in excess of the limits as per the calculations specifically
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`set forth in the cited statute. Defendant posits no interpretation of the Complaint that could result
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`in a non-violation.
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`Even if the Court were interpreting the Complaint in the manner most generous to the
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`Defendant, which is not the standard, any alternative calculation that Plaintiff could have used
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`would have been more generous to Defendant. Presumably, if the “total order” as alleged in the
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`Complaint differed from the “purchase price” defined in the statute, that sum would have been
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`increased by additional amounts charged to the customer, i.e. fees, taxes, and tips. That would
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`result in a higher base number for the Defendant to calculate its fees. Accordingly, any allegation
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`that Defendant charged percentage fees in excess of what would be permitted as calculated on this
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`higher base would necessarily include an allegation that Defendant charged fees in excess of the
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`smaller number.1 Defendant does not set forth any other alternative supporting this argument.
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`Third, the Defendants claim that the Complaint does not specify “of what the alleged ‘fees’
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`consisted, or how (if at all) the provisions of the emergency fee cap law applied to those ‘fees.’”
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`Defendant’s Memo of Law in Support at 8. Again, Defendant is wrong in this assertion and fails to
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`explain an alternative interpretation that could be considered as a non-violation of the statutes. As
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`pled in the Complaint, the Delivery App. Legislation limited fees to a 15% delivery fee and 5%
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`cumulative additional fees. Regardless of what the 27.5% fees consisted of, the Complaint sets
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`forth an alleged violation. Similarly, the legislation applies to all fees, so it is unclear what
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`Defendant means in asking how the provisions applied to those fees. Tellingly, Defendant does
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`not attempt to explain.
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`Next, Defendant unreasonably claims that the Complaint does not “explain how or why the
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`alleged 20% ‘commission’ fee violated either” of the Local Laws. Defendant’s Memo of Law in
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`Support at 8. As set forth in the Complaint, and above, the laws create a limit of 15% for delivery
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`fees and cumulative 5% for additional fees, with the Amended Delivery App. Legislation allowing
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`a carve out for credit card fees. Complaint ¶¶ 6–7. A single 20% fee is clearly in excess of either
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`the 15% delivery fee or 5% cumulative limit for other fees. This is indisputably a violation of the
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`provisions of the statute. Defendant’s entire argument on this point deceptively relies on the
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`supposed premise that “by arguing that the ‘commission’ fee violated the ‘spirit’ of the emergency
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`fee cap law, plaintiff tacitly admits that no statutory provision actually supports its claim.” Memo
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`of Law in Support at 8–9. This assertion is meritless as Defendant neglects to mention that the
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`1 This argument is solely illustrative of how Defendant’s claim does not show how any discrepancy between the
`“total order” and “purchase price” language has a negative impact on Plaintiff’s claims. Plaintiff in no way
`concedes that there is any such discrepancy.
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`challenged allegation actually states that the ‘commission’ fee “violated the spirit and the letter
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`of the Delivery App. Legislation.” Complaint ¶ 63 (emphasis added).
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`Lastly, Defendant challenges that Plaintiff has adequately pleaded allegations of excessive
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`credit card fees. At paragraph 65, as quoted in Defendant’s motion papers, Plaintiff alleges that
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`“Defendants also wrongfully inflated their credit card processing fees to as high as four and a half
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`percent […]”. In the context of the entire Complaint, and the allegations made therein with
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`citations to the applicable law, it is clear that paragraph 65 of the Complaint is alleging that
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`Defendant charged credit card fees in excess of the amounts permitted by the relevant legislations
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`during the times that they were applicable. These allegations, as set forth clearly in the Complaint,
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`are more than sufficient to provide Defendant with notice of the claims against it and afford it the
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`opportunity to prepare its defense in this matter.
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`Beyond the points raised specifically in Defendant’s motion, the Complaint also
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`sufficiently alleges facts that would establish a claim for unjust enrichment, which is fairly read
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`into Plaintiff’s third cause of action. “The basic elements of an unjust enrichment claim in New
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`York require proof that (1) defendant was enriched, (2) at plaintiff’s expense, and (3) equity and
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`good conscience militate against permitting defendant to retain what plaintiff is seeking to recover.
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`Briarpatch, Ltd., L.P v. Phoenix Pictures, Inc., 373 F.3d 296, 306 (2d Cir. 2004). There can be no
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`doubt that these allegations are within the Complaint. Plaintiff alleges that Defendant, among
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`others, wrongfully took advantage of the COVID 19 Pandemic to charge inflated fees to businesses
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`that literally had no option but to operate strictly on a delivery and take out model. The inequitable
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`conduct of Defendant, though highlighted and heightened by the passing of the Local Laws
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`capping fees, does not depend upon the existence of those laws for purposes of stating a claim of
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`Case 1:21-cv-04995-JMF Document 100 Filed 08/12/22 Page 15 of 17
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`unjust enrichment. Equity and good conscience cannot support condonation of Defendant’s
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`conduct.
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`Defendant’s position that Plaintiff’s allegations are conclusory lack merit. Plaintiff cites
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`directly to statutes that impose limitations on fees that could be charged by Defendant and sets
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`forth specific fees and percentages of fees in excess of those limits that it was charged by
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`Defendant. These are not conclusory allegations, but specific factual allegations that set forth a
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`claim against Defendant that is more than plausible on its face. Plaintiff’s Complaint is well
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`pleaded and should not be dismissed.
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`For these reasons, Plaintiff has properly stated claims for relief in the Complaint and
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`Defendant’s motion should be denied in all respects.
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`III.
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`Plaintiff Should be Granted Leave to Replead in Lieu of Dismissal
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` Plaintiff fully maintains that the Complaint is adequately pleaded and should survive
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`Defendant’s motion for judgment on the pleadings. However, in the event that the Court is inclined
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`to grant Defendant’s motion, Plaintiff respectfully requests an opportunity to file an amended
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`complaint. “[A] party may amend its pleading . . . with . . . the court’s leave. The court should
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`freely give leave when justice so requires.” FED. R. CIV. P. 15(a)(2). Despite Defendant’s
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`arguments to the contrary, such an opportunity to replead would not be futile.
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`Defendant’s sole argument regarding futility is that “[n]o possible amendment of the
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`Complaint could allow plaintiff to state a claim for orders placed in 2020 and 2021 based on now-
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`repealed laws that provided no private cause of action.” Memorandum of Law in Support at 9–10.
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`Defendant cites to no authority for the suggestion that because a law has been repealed that a
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`lawsuit cannot be maintained for its violation while the law was in effect—particularly where the
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`action was commenced while the law was effective, and the law was repealed specifically to make
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`Case 1:21-cv-04995-JMF Document 100 Filed 08/12/22 Page 16 of 17
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`its temporary prohibitions permanent under a new law. Therefore, Defendant’s entire argument
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`regarding futility rests on its same arguments that there is no implied private right of action under
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`the Local Laws. That argument has been addressed in full above. Plaintiff need not file an amended
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`complaint regarding the issue of the existence of a private right of action.
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`Defendant makes no suggestion that any other alleged deficiency in the Complaint—as
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`raised in Section III. B. of Defendant’s Memorandum of Law in Support—is incurable. By failing
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`to make such argument, Defendant implicitly concedes that any alleged deficiency could be
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`addressed in an amended complaint. If the Court agrees with Defendant that the allegations of the
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`Complaint are insufficiently specific to Defendant, which Plaintiff wholeheartedly denies, Plaintiff
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`respectfully requests the opportunity to file and serve an amended complaint that would include
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`more particularized allegations and provide any needed clarity. See Brook v. Simon & Partners
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`LLP, 783 Fed. Appx. 13, 18–19 (2d Cir. 2019) (vacating dismissal without leave to replead where
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`amendment may not be futile because amended complaint could provide further clarity). However,
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`even if the Court finds that there is no private right of action in this case, such finding is not
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`dispositive of the issue of futility.
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`Defendant ignores the well-pleaded allegations of the Complaint that support a cause of
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`action for unjust enrichment, independent of an implied private right of action in Local Laws 52
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`and 88. To the extent the Court grants Defendant’s motion, finding that a claim for unjust
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`enrichment should have been more clearly enunciated in the Complaint, it would not be futile for
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`Plaintiff to file an amended complaint more clearly identifying a claim under unjust enrichment as
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`one of its causes of action.
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`Case 1:21-cv-04995-JMF Document 100 Filed 08/12/22 Page 17 of 17
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`For these reasons, dismissal with prejudice would not be appropriate in this action and
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`Plaintiff should be granted leave to file an amended complaint in the event the Court determines
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`that the Complaint fails to state a claim in its current form.
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`CONCLUSION
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`For the foregoing reasons, the Court should deny Defendant’s motion in its entirety,
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`Plaintiff should be granted leave to replead in the event the Court finds Plaintiff’s first Complaint
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`deficient, and such other and further relief as the Court deems just and proper.
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`Dated: August 12, 2022
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`New York, New York
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`HELBRAUN & LEVEY LLP
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`By: ___________________
`Eric Dawson, Esq.
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`Lee Jacobs, Esq.