Judge Gardephe Denies Bill Cosby Access to Unpublished Material Used in New York Magazine Story

In an oral ruling today, reported by Reuters, Judge Gardephe denied as “border[ing] on the frivolous” Bill Cosby’s motion to compel New York Magazine to produce unpublished material relating to a story it published about 35 women who accused him of sexual assault.  Cosby had argued in his motion papers that the material fell outside New York’s reporters’ shield law because it would be critical to his defense of a defamation action brought by various of his accusers in Massachusetts.  Specifically, according to Cosby, “Plaintiffs’ statements to NYM may reveal descriptions of the alleged assaults by Mr. Cosby that differ from prior or future versions of these accounts.”

But New York Magazine argued, and Judge Gardephe appears to have agreed, that these claims of relevance were too “generic” to overcome the reporters’ shield:

Defendant here has not even made a credible argument that New York Media has any particular information that would have any bearing on his case, let alone that it has any unique or special information that would affect the outcome. Cosby’s argument is so generic that were it to prevail, the resulting standard could lead to a requirement that any or all of the countless media outlets that have covered the Cosby controversy or interviewed any of his accusers would be forced to throw open their files so Cosby could sift through in hopes of finding some unspecified document that could possibly aid his case. That is specifically what the Shield Law prevents.

Second Circuit Sides With NFL in DeflateGate Appeal

In a decision today, the Second Circuit, by a 2-1 vote, reversed Judge Berman’s ruling in the DeflateGate case, effectively reinstating Tom Brady’s four-game suspension for his role in deflating footballs used during the 2015 AFC Championship Game.

Tom Brady and the NFL Player’s Association focused their appeal on the fact that, based on the NFL’s written policies, Brady had no prior notice that a first-time violation could result in anything more than a fine, but the Second found that the NFL’s reading of those policies was justifiable, and met the minimal standards for confirming an arbitration award: Continue Reading

Second Circuit Allows Recovery of 7-Carat Diamond Against Innocent Buyer, Rejecting UCC “Merchant Entrustment” Rule

Yesterday, the Second Circuit reversed a decision by Judge Scheindlin granting summary judgment in favor of two plaintiffs seeking to confirm ownership of a 7.4-carat diamond under the UCC’s “merchant entrustment” rule (see our original coverage of the case here).  The defendant below, the original owner of the diamond, had lent the diamond to a celebrity stylist who apparently stole the diamond at some point in the past.  When asked to determine if the stylist was a “merchant” who could transfer the rights to a later owner (the plaintiffs below and appellants in the Second Circuit action), Judge Scheindlin found that the stylist was a “merchant” because he had “knowledge or skill peculiar to the practices or goods involved in the transaction.”  The Second Circuit construed the relevant UCC language to also require that the merchant “deal in goods of that kind” — which the stylist did not do — and thus allowed the original owner (the defendant) to pursue recovery of the stolen diamond from the innocent buyers (the plaintiffs).

Supreme Court Agrees With Judge Forrest on Separation-of-Powers Question in Iranian Asset Case

The Supreme Court today affirmed, by a 7-2 vote, a judgment originally from Judge Forrest (see our coverage here) concluding that a law pertaining to the seizure of Iranian assets was not, as the defendants contended, effectively a direction to decide a single pending case in one side’s favor, in violation of the separation of powers doctrine.  In short, the law stated that, if Iran owned certain assets, the victims of Iran-sponsored terrorism could execute on those assets.

Judge Forrest found that the law did not “usurp the adjudicative function” because it still left “plenty for this Court to adjudicate,” such as whether Iran owned the assets or whether any third parties had an interest in the assets.  The Supreme Court agreed that, while the law may have “changed the law by establishing new substantive standards,” it “entrust[ed] to the District Court application of those standards to the facts (contested or uncontested) found by the court,” and was thereby consistent with the separation of powers.

Prior posts on the case are here.

Class Action Suit Challenges Copyright for “We Shall Overcome”

Last week, the We Shall Overcome Foundation filed a complaint on behalf of a purported class challenging the copyright of “We Shall Overcome,” the unofficial anthem of the U.S. civil rights movement.  The We Shall Overcome Foundation attempted to use the song in a documentary film, and the defendant copyright holders denied the request.  The complaint argues that the song has the same lyrics and melody as a 19th century African-American spiritual, meaning that any copyright is limited to the specific arrangement or additional verses covered by the disputed 1960 and 1963 copyrights.  The complaint contains claims for declaratory and injunctive relief, as well as state law claims.

A similar case in 2013 (see our coverage here) challenged the copyright for “Happy Birthday to You.”  That case was voluntarily dismissed, and a parallel case in California resulted in a settlement that made the song public.

The case is currently pending before Judge Cote.

Default Judgment Leads to Forfeiture in U.S. Attorney’s Successful Pursuit of Tyrannosaurus Skull

Yesterday, Judge Oetken entered a default judgment against one Tyrannousaurus bataar skull, marking a successful end to the U.S. Attorney’s forfeiture action against the skull.  The original complaint alleged that the skull was cultural property stolen from Mongolia and sought to return it.

Our previous coverage of the case is here.

Judge Furman Tells GM Ignition Switch MDL Lawyers to “Return to Focusing on What is Truly at Stake in This Litigation”

Yesterday, Judge Furman issued a written opinion following up on his earlier denial of a motion to replace the lead plaintiffs’ counsel for the ongoing GM ignition switch litigation.  Judge Furman lauded the plaintiffs’ steering committee for coordinating the massive litigation effort – including over three hundred depositions and almost fifty motions in limine – in just a year and a half.  Judge Furman reiterated that the motion was untimely, and that the movants (other plaintiffs’ counsel with concerns about the direction of the MDL’s leadership) had not met the high burden for unseating lead counsel.

Continue Reading

Second Circuit Rules That District Court Should Have Limited, But Not Excluded Entirely, Damages Expert Testimony in Pfizer Securities Class Action

The Second Circuit today held, in a shareholder class action accusing Pfizer of concealing the cardiovascular risks of two drugs, that Judge Swain should not have excluded entirely the testimony of the plaintiffs’ damages expert — a decision which had effectively ended the case (see our prior posts here and here).  The Second Circuit agreed with Judge Swain about the problems in the expert’s testimony, but ruled that she should have preserved the admissible portions:

When faced with expert testimony that contains both reliable and unreliable opinions, district courts often exclude only the unreliable testimony. This process of parsing expert testimony is consistent with Rule 702’s “liberal admissibility standards,” which favor allowing the jury to hear testimony that “both rests on a reliable foundation and is relevant to the task at hand.” Of course, district courts are “not obligated to prune away all of the problematic” elements of an expert’s proposed testimony “to save the remaining portions, however small.” But when the unreliable portion of an opinion can easily be distinguished from testimony that could help the jury, it may be an abuse of discretion to throw the good out with the bad.

The Second Circuit found that the expert’s errors in the Pfizer case were “but one small part of an extensive economic analysis.”

Our prior posts on the case are here.

GM Settles Third Ignition Switch Bellwether Before Trial

Earlier today, GM settled with the third bellwether plaintiff prior to trial in the ongoing litigation over allegedly defective ignition switches in GM vehicles.  Of three bellwether cases so far, the first was withdrawn before a verdict, the second was decided in GM’s favor, and the third has now settled.  Plaintiff’s counsel in the third bellwether case had previously asked Judge Furman to remove the co-lead counsel for the plaintiffs’ side after GM’s victory in the first bellwether, but Judge Furman declined to do so.

Our full coverage of the GM ignition switch litigation is here.


NBA’s Thabo Sefolosha Files Complaint Against NYPD Officers

Earlier today, NBA player Thabo Sefolosha filed a complaint against five NYPD officers and the City of New York.  The claims stem from an incident outside a Manhattan nightclub in April 2015, where Sefolosha alleges that NYPD officers beat him and broke his leg without justification.  According to the complaint, the NYPD orchestrated a malicious prosecution against Sefolosha in an attempt to cover up wrongdoing after they realized he was a well-known basketball player.  Sefolosha was later acquitted by a Manhattan jury.

The complaint includes claims against the police officers under 42 U.S.C. § 1983 for false arrest, excessive force, malicious prosecution, and false imprisonment, as well as claims against the City of New York.  The case is pending before Judge Furman.