OPINION AND ORDER In this lawsuit, plaintiff alleges causes of action for breach of contract, intentional misrepresentation, and unfair competition, seeking monetary and injunctive relief. Second Am. Compl. (“Compl.”) Prayer for Relief, ECF No. 49 (Apr. 7. 2020). Defendant now moves to dismiss the intentional misrepresentation and unfair competition counts as duplicative of the breach of contract count, and, in any case, insufficiently pled.1 For the following reasons, the motion is granted with prejudice. Plaintiff North America Photon Infotech Ltd. (“Photon”) is a “digital innovation” company, Compl. 6, that, like many businesses, maintains an extensive database of contacts for sales and marketing purposes. Id. 7. Defendant DiscoverOrg, LLC is a marketing company that offers its customers access to a database of contact information on a subscription basis. See id. 9. DiscoverOrg also offers a service by which it reviews a company’s pre-existing marketing contact data for accuracy. Id. DiscoverOrg advertises its data to be 95 percent accurate. Id. 10. On May 11, 2017, Photon and DiscoverOrg entered into a contractual agreement under which DiscoverOrg offered its services to Photon until May 11, 2018, in order to aid in Photon’s marketing campaign. Id. 11. The contract obligated DiscoverOrg to provide data that was at least 95 percent accurate. Contract §5.2, Ex. A to Longstaff Decl., ECF No. 54 (May 1, 2020).2 The contract required lower accuracy thresholds for DiscoverOrg’s review of Photon’s pre-existing data. Id. Ex A. Photon now alleges that DiscoverOrg breached the contract by providing inaccurate data. Moreover, Photon alleges that, by doing so intentionally and through a misleading advertisement, DiscoverOrg committed the torts of intentional misrepresentation and unfair competition. Specifically, the Complaint pleads that DiscoverOrg’s review of Photon’s pre-existing data not only introduced inaccurate contact information, but in fact replaced accurate information that Photon already had about its customers with false contact information. Compl. 12. For example, when Photon uploaded data from DiscoverOrg into its system, DiscoverOrg replaced over 450 valid email addresses of real contacts Photon had maintained for years with fake email addresses that sent any communications intended for the Photon contact to DiscoverOrg instead. Id. 13. As a result, Photon’s marketing campaign suffered, and Photon wasted substantial resources, data, and time. Id.
15, 18. For the purpose of evaluating the instant motion to dismiss, the Court disregards “legal conclusion[s] couched as…factual allegation[s],” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), but “accept[s] as true all of the factual allegations set out in plaintiff’s complaint [and] draws inferences from those allegations in the light most favorable to plaintiff.’” Rescuecom Corp. v. Google Inc., 562 F.3d 123, 127 (2d Cir. 2009) (quoting Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)). The net result must be “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Defendant first moves to dismiss the intentional misrepresentation claim on the ground that it is duplicative of plaintiff’s breach of contract claim. The Court agrees that plaintiff has not stated any distinct claim for relief in tort. Under New York law (which here governs), “[w]hen a valid agreement governs the subject matter of a dispute between parties, claims arising from that dispute are contractual; attempts to repackage them as sounding in fraud, conversion, and other torts,…are generally precluded….” Bancorp Servs., LLC v. Am. Gen. Life Ins. Co., No. 14-cv-9687 (VEC), 2016 WL 4916969, at *9 (S.D.N.Y. Feb. 11, 2016) (quoting Poplar Lane Farm LLC v. Fathers of Our Lady of Mercy, 449 Fed. App’x 57, 59 (2d Cir. 2011)). A party cannot set forth an independent tort claim by “simply dressing up a breach of contract claim by further alleging that the promisor had no intention, at the time of the contract’s making, to perform its obligations thereunder.” Telecom Intern. Am., Ltd. v. AT&T Corp., 280 F.3d 175, 196 (2d Cir. 2001) (quoting Best Western Int’l, Inc. v. CSI Int’l Corp., No. 94-cv-0360 (LMM), 1994 WL 465905, at *4 (S.D.N.Y. Aug. 23, 1994)). Separate claims for fraud and breach of contract exist only when a plaintiff can “(i) demonstrate a legal duty separate from the duty to perform under the contract, or (ii) demonstrate a fraudulent misrepresentation collateral or extraneous to the contract, or (iii) seek special damages that are caused by the misrepresentation and unrecoverable as contract damages.” Guilbert v. Gardner, 480 F.3d 140, 148 (2d Cir. 2007). Plaintiff relies on the second and third such exceptions. As to the second, plaintiff claims that it has pled a fraudulent misrepresentation extraneous to the contract, essentially arguing that there was fraud in the inducement because Photon would not have entered into the contract but for DiscoverOrg’s representations about the accuracy of its data. Compl. 29. But this is unpersuasive. Generally, “allegations of false statements of intent to perform contractual obligations are not sufficient to support a fraud claim.” Sofi Classic S.A. de C.V. v. Hurowitz, 444 F. Supp. 2d 231, 244 (S.D.N.Y. 2006). False statements about facts collateral to the contract are potentially actionable as fraud — in Hurowitz, for example, false statements about the promisor corporation’s financial condition that the plaintiff relied upon in entering the contract, 444 F. Supp. 2d at 245 — but there is no allegation of such statements here beyond DiscoverOrg’s advertisements. As to the third Guilbert exception, plaintiff argues that it can recover greater damages in fraud than it can in contract. But this is similarly unavailing. Plaintiff cites Deerfield Commc’ns Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954, 956 (1986), where the Court of Appeals upheld a jury’s decision to award separate damages for fraud and breach claims. But subsequent courts have distinguished Deerfield on the ground that the breach claim there was premised on the defendant’s failure to pay a purchase price, while the fraudulent inducement claim stemmed from the “plaintiff’s alleged failure to adhere to an oral agreement to resell within geographic limits.” Mosaic Caribe, Ltd. v. Allsettled Grp., Inc., No. 651798/2012, 2013 WL 3890003 at *4 (N.Y. Sup. Ct. July 25, 2013). Here, unlike in Deerfield, the fraud claim rests on an indentical set of facts as the breach claim. The intentional misrepresentation claim must therefore be dismissed as duplicative of the breach of contract claim. While the foregoing is sufficient to dispose of the intentional misrepresentation claim, the Court also agrees with defendant that this clam is inadequately pled. Specifically, as defendant argues, plaintiff has not adequately pled the knowledge and intent elements of fraud. See Crigger v. Fahnestock and Co., Inc., 443 F.3d 230, 234 (2d Cir. 2006). Apart from the conclusory assertion in the complaint that defendant provided false marketing information with the requisite state of mind, Compl. 27, the only alleged facts that potentially suggest that defendant acted with knowledge of falsity and intent to defraud are that DiscoverOrg’s database contained inaccurate data, Compl.
