Second Circuit Reverses Judge Rakoff’s $1.2 Billion Penalty in BOA-Countrywide FIRREA Litigation

Today, the Second Circuit reversed Judge Rakoff’s $1.2 billion penalty against Bank of America/Countrywide for FIRREA violations (see our previous coverage here).  The case involved allegations that BoA/Countrywide had sold faulty mortgages to Fannie Mae and Freddie Mac, originally brought as a qui tam suit under the False Claims Act in which the government intervened.  The Second Circuit’s decision focused on whether the breach of a contractual promise, without further proof of fraudulent intent at the time of contracting, could sustain a claim for fraud.  The Second Circuit held that it court not:

Continue Reading

Judge Furman Allows City’s Case Against “Flushable” Wipe Makers to Proceed

In an opinion today, Judge Furman largely denied a motion to dismiss the city of Perry, Iowa’s putative class action (first covered here) against the makers of so-called “flushable” wipes that allegedly are not flushable at all and allegedly damage the city’s sewer systems. Continue Reading

Judge Preska Grants Steven Cohen Summary Judgment in Long-Running Case Brought by Former Wife

Today, Judge Preska granted summary judgment in favor of Steven Cohen on fraud and breach of fiduciary duty claims brought by his former wife, Patricia Cohen.  The case was originally filed in 2009 (see our previous coverage here) against Steven Cohen, the former head of SAC Capital Advisors.  In the complaint, Patricia Cohen claimed that Steven Cohen had defrauded her during their divorce in the late 1980s by hiding assets using a Queens real estate investment.

Continue Reading

Class Action Complaint Filed Over Starbucks’ Beverage Sizes

A putative class action filed last week alleges that Starbucks’ espresso beverages contain fewer fluid ounces than advertised due to an alleged company-wide policy of under-filling beverage cups.  According to the complaint, two representative beverages purchased at a Manhattan Starbucks included roughly 15% less volume than advertised.  The proposed class includes all persons or entities in New York who purchased latte or mocha beverages from New York Starbucks locations from 2010 to the present.  The complaint includes claims for breach of warranty, deceptive business practices, false advertising, fraudulent concealment, fraudulent inducement, negligent misrepresentation, and unjust enrichment.

The case is pending before Judge Failla.

SEC Claims Cooperator Lied At Trial; Seeks To Up Penalty from $2,500 to $3 Million

The SEC claims that insider trading defendant Thomas Condradt committed perjury at the trial of his co-defendant Daryl Payton in breach of his cooperation agreement and, instead of the agreed-upon penalty of $2,533, the SEC is now seeking a penalty of almost $3 million.  The jury ultimately convicted Payton, even though the SEC was clearly displeased with Conradt.  (We have covered this case in several posts, see here, including Mr. Payton’s own troubles with perjury allegations, see here.  More color is provided by an article in the WSJ (h/t) today).

The SEC argued that Conradt had to be repeatedly impeached with his prior deposition testimony at trial, at should be punished in a way that deters others from doing the same: Continue Reading

Class Action Complaint Challenges Court Delays in Bronx Criminal Court

class action complaint filed yesterday against Governor Andrew Cuomo and others challenges as unconstitutional the allegedly lengthy delays for adjudicating cases before New York City’s Criminal Court for Bronx County.  According to the complaint, a single case often requires dozens of court appearances and years of time to adjudicate — on average, 642 days for bench trials and 827 days for a jury trial.  The complaint begins:

Justice delayed is justice denied. The constitutional right to a trial—a speedy and public trial—is the foundation of our adversarial criminal justice system. The right to challenge the state’s evidence and confront witnesses in a meaningful and timely manner gives legal and moral legitimacy to the system as a whole. For people accused of misdemeanors in the Bronx, however, this right is illusory. Years of persistent delays in processing misdemeanor cases, court congestion, and case backlogs (collectively, “Court Delay”) in the New York City Criminal Court, Bronx County (“Bronx Criminal Court”) have fatally undermined the right to trial and the right to a speedy trial for the tens of thousands of people charged with low-level offenses in the Bronx. The system more closely resembles punishment than due process.

The case is before Judge Daniels.


Judge Rakoff Rejects Handwriting Expert Under FRE 702

Last week, Judge Rakoff held that courts should generally be wary of admitting handwriting expert testimony under Federal Rule of Evidence 702.  His opinion notes that handwriting analysis, unlike DNA or other forms of scientific evidence, did not arise from scientific inquiry and instead was created solely for use in the courtroom.  Judge Rakoff found the expert’s opinion evidence “far too problematic” to be admissible towards determining whether a party’s signature at issue in the case was authentic.

After applying the Daubert factors, Judge Rakoff concluded that: Continue Reading

Salvatore Ferragamo Brings Trademark Claims Against Former NFL Quarterback’s Ferragamo Winery

Today, Salvatore Ferragamo S.p.A. filed a complaint against former NFL quarterback Vincent Ferragamo (who led the LA Rams to Super Bowl XIV as a rookie in 1980) and his Ferragamo Winery near Los Angeles.  While Salvatore Ferragamo does not currently license its name for wines, it had previously done so in the U.S. in the 1980s.  Ferragamo (the Italian fashion brand) claims that Ferragamo (the winery) creates consumer confusion and violates Salvatore Ferragamo’s U.S. trademarks:

Continue Reading

New York Court of Appeals Will Hear Copyright Issue Judge McMahon Originally Certified for Interlocutory Appeal

The New York Court of Appeals has accepted a certified question from the Second Circuit regarding whether New York copyright holders for pre-1972 recordings (governed by state copyright law, and not the federal Copyright Act) have a right to exclusive public performance of those recordings.  The case, initially before Judge McMahon, arose after Sirius XM played songs by The Turtles (including the famous “Happy Together”) without a license from the members of the band.  Judge McMahon had certified this same issue for interlocutory review before the Second Circuit — which has now turned it over to the New York Court of Appeals.

Our prior coverage of the case is here.

Judge Scheindlin Gives Departing Interviews to NYT, NYLJ, and AP

The articles are here (NYT), here (NYLJ), and here (AP).

In the articles, Judge Scheindlin defends her work on the stop-and-frisk cases (which we covered extensively, see here).  She called the Second Circuit’s decision to remove her from the cases an “intrafamily attack on judicial independence.”

As of today, Judge Scheindlin will be working at JAMS and at Stroock Stroock & Lavan.