Lewis Saul & Assocs. v. Marchex

U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Contracts

New York Law Journal

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Judge Thomas Griesa

Maine-based law firm Lewis Saul & Associates used the 877-LAWSUIT number since 2007. It hired Cohn & Moscarelli Marketing & Communications (C&M) in 2009 to develop an ad campaign using that number. C&M advised Lewis Saul that to do so the phone company serving the number had to be changed to Marchex. Lewis Saul's "letter of authorization" designated Marchex Voice as the "responsible organization" for the number. Lewis Saul used that number in its advertising until Aug. 30, 2010, when C&M advised discontinued use of certain numbers, excluding 877-LAWSUIT. Lewis Saul authorized release of the unwanted toll-free numbers. In 2011, Marchex released the 877-LAWSUIT number. Lewis Saul claimed that as a result it sustained at least $1 million in damages. The court denied dismissal of Lewis Saul's contract breach claim. That claim was sufficiently pleaded, and triable issues existed on its claim for $1 million in lost business and loss of the exclusive right to use 877-LAWSUIT. However, Lewis Saul's claims for negligence and gross negligence repackaged contractual allegations as tort claims. Those claims were thus dismissed and could not be repleaded.

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