Kanye’s Tweet Could Be False Advertising, New York Court Rules

Advertising Law

Kanye West could be liable for false advertising based on a tweet about a recent album after a New York federal court denied his motion to dismiss on that count.

In February 2016, West tweeted that his new album The Life of Pablo “will never never never be on Apple. And it will never be for sale … You can only get it on Tidal.” The tweet went viral and West, a shareholder in the streaming music service, initially made good on his promise and released the album exclusively on Tidal. The service similarly promoted West’s album as an exclusive by tweeting, “We’re bringing @KanyeWest’s #TLOP to fans around the globe. It’s streaming exclusively on TIDAL.com.”

Subscriptions to the service tripled. But just a few weeks later, West delivered an about-face, offering his album on his own website and a host of other services, including Pandora, Spotify—and yes, even Apple.

In response, California resident Justin Baker-Rhett filed a putative class action complaint against West and Aspiro, the operator of Tidal. The plaintiff claimed that he signed up for Tidal (at a cost of $9.99 per month after a free trial period) for the sole purpose of gaining access to The Life of Pablo.

After the plaintiff dismissed his California action and refiled in New York, the defendants moved to dismiss the second complaint. U.S. District Court Judge Gregory H. Woods granted the motion in part, but kept some of the claims alive.

Baker-Rhett’s claims under sections 349 and 350 of the New York General Business Law failed for lack of standing, the court found. The statute contains a territoriality provision that requires that the consumer deception occur within New York.

“There are no allegations that the alleged deceptive transaction involving Mr. Baker-Rhett occurred in New York,” the court said. “It is not alleged that Mr. Baker-Rhett viewed the allegedly deceptive tweets in New York, or that he subscribed to the Tidal service in New York – it may be that he did so in California where he resides and where he first brought this suit. The only link that Mr. Baker-Rhett can point to in order to establish a link to New York is the choice of law and venue provision in the ‘Terms and Conditions’ that he agreed to when he signed up for the service.”

However, the plaintiff’s fraudulent inducement claim had no territoriality requirement, and the court denied the motion to dismiss despite West’s argument that his tweet was true when he made it. The rapper told the court that the album was updated and remixed numerous times, with different vocals, lyrics and arrangements, and only the “newly updated, remixed and remastered version[s]” of The Life of Pablo were made available for purchase on platforms other than Tidal.

Judge Woods was not persuaded. “Mr. West’s argument is tenuous, and certainly does not pass muster in the context of a motion to dismiss, when the Court is required to draw all inferences in favor of the non-moving party,” the court wrote. West’s tweet referenced “my album” and “did not commit that a particular version, or mix, or master of his album would not be on Apple—his commitment was that the ‘album,’ ‘it,’ would not be. And the album was made available on Apple Music shortly after the Tweet.”

“Regardless of whether or not Mr. West’s argument will persuade a jury at a later stage in the case, the Court has little difficulty concluding that the complaint plausibly pleads that Mr. West’s statement that his album would never never never be available on Apple Music or for sale was false,” the court concluded.

The plaintiff’s fraudulent inducement claim against Aspiro based on the alleged misrepresentation in West’s tweet also survived, with the court finding adequate scienter was sufficiently pled against both defendants.

“The facts alleged in the complaint provide strong circumstantial evidence of conscious misbehavior,” the court said. “The complaint describes in detail the dire financial condition of both Aspiro and Mr. West at the time of the release of his album. It describes the tangible benefits of an increase in Tidal’s subscribers base for both defendants. Most significantly, the complaint asserts that at the time that Mr. West tweeted that the album would ‘never never never’ be available on Apple or for sale, both defendants knew that it soon would. And a mere six weeks later, it was.”

To read the memorandum opinion and order in Baker-Rhett v. Aspiro AB, click here.

Why it matters: While Kanye West has since tweeted on more controversial topics, the New York court refused to dismiss the fraudulent inducement allegations based on his February 2016 tweet, opening the rapper to potential liability for his less-than-140-character missive. For advertisers, the decision provides an important reminder to be careful about making promises, particularly on social media.



pursuant to New York DR 2-101(f)

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