Judge Gardephe Dismisses Renewed Defamation Claims by Anti-Aging Doctors Labeled as “Quacks”

Today, Judge Gardephe dismissed with prejudice the amended complaint brought by two prominent “anti-aging” doctors against the nonprofit consumer advocacy website “Quackwatch.”  Last year, Judge Gardephe dismissed the original complaint, containing defamation claims based on an article reporting that the plaintiffs had agreed to pay fines to the Illinois licensing authorities for improperly using the term “M.D.” after their names (see our coverage here).  Plaintiffs’ amended complaint claimed that the defendant, a retired doctor who operates the “Quackwatch” site, had secretly contacted government officials in China and Malaysia to scuttle the plaintiffs’ valuable government contracts based on the allegedly defamatory article on “Quackwatch.”

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SDNY Selects Three New Magistrate Judges

The Southern District has announced three new magistrate judges, who will fill the seats being vacated by Magistrate Judges Francis, Ellis, and Peck later this year.

Joining the bench will be Stewart Aaron, of Arnold & Porter Kaye Scholer; Robert Lehrburger, of Patterson Belknap Webb & Tyler; and Ona Wang, of Baker & Hostetler.

For more, see the New York Law Journal.

Judge Preska: Widespread Pirating Makes Music Price Fixing Case Unsuitable for Class Treatment

In an opinion yesterday, Judge Preska refused to certify as a class action a case alleging price fixing in the digital music industry.  Among other reasons, she found that widespread pirating would raise “unclean hand” defenses that could not be determined on a classwide basis:

Defendants note that two of the Proposed Class Representatives admitted in their depositions to pirating Digital Music and that a third refused to produce documents that might expose his participation in illegal downloading.  [A defense expert] also cites evidence of widespread illegal downloading of Defendants’ music during the class period, indicating that between 2004 and 2009 approximately 30 billion songs were illegally downloaded on file-sharing networks and that only 37% of music acquired by U.S. consumers in 2009 was legally purchased . . . .

[I]f the alleged price fixing inflated the prices for Digital Music such that Plaintiffs responded by illegally obtaining songs for free, the Court would necessarily have to conduct an individualized inquiry into evidence of illegal downloading by the proposed class members in order to determine whether such an offset is necessary for each individual plaintiff. Because Plaintiffs propose nine separate damages classes with millions of potential members, this individualized inquiry would quickly overwhelm questions common to the class.

N.Y. Times Moves to Dismiss Palin Defamation Suit, Arguing Editorial Concerned Palin’s PAC, Not Palin Personally

Last week, the New York Times Company moved to dismiss a defamation suit brought by Sarah Palin over a New York Times editorial drawing a connection between SarahPAC’s publication of a “crosshairs map” referencing Representative Gabrielle Giffords and the mass shooting where she was wounded in 2011 (see our previous coverage of the suit here).

The Times argues that SarahPAC cannot be considered an alter ego of its namesake, meaning that the editorial was not “of and concerning” her: Continue Reading

Complaint: @realDonaldTrump Blocking Twitter Users Violates First Amendment

A complaint filed today alleges that President Trump and others violated the First Amendment when they blocked Twitter users who wrote tweets critical of the president.  The plaintiffs claim that preventing them from viewing comments, replying to tweets, and participating in comment threads denies access to an important public forum in the 21st century.

According to the complaint:

President Trump’s Twitter account, @realDonaldTrump, has become an important source of news and information about the government, and an important public forum for speech by, to, and about the President. In an effort to suppress dissent in this forum, Defendants have excluded—“blocked”—Twitter users who have criticized the President or his policies. This practice is unconstitutional, and this suit seeks to end it.  As the Supreme Court recognized just a few weeks ago, social media platforms like Facebook and Twitter provide “perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” . . . . Twitter enables ordinary citizens to speak directly to public officials and to listen to and debate others about public issues, in much the same way they could if they were gathered on a sidewalk or in a public park, or at a city council meeting or town hall.

The complaint contains a single cause of action for declaratory and injunctive relief under the First Amendment.  A judge has not yet been assigned.

Judge Sullivan: Plaintiff Can Voluntarily Drop Federal Claim to Get Back in State Court

Today, Judge Sullivan remanded to New York state court a case against MLB brought by a former Milwaukee Brewers and Cincinnati Reds player Neiman Nix.  The complaint alleged that MLB investigators spread misinformation about Nix’s player training academy and “sports science testing facility” in Florida, and included claims for defamation, tortious interference, and violation of the Computer Fraud and Abuse Act.

Judge Sullivan dismissed the sole federal claim under the CFAA at the plaintiff’s behest, despite the defendants’ argument that plaintiffs’ position was solely intended to defeat federal jurisdiction.  Judge Sullivan found that while forum manipulation was frowned upon, it did not require the court to exercise its supplemental jurisdiction after all federal claims had been dismissed: Continue Reading

In Sarah Palin’s Defamation Case Against N.Y. Times, Judge Rakoff Indicates Trial by December

Sarah Palin sued the New York Times Tuesday (see the complaint here) over a recent editorial suggesting that her political action committee’s use of “stylized cross hairs” over the districts of several members of Congress in online materials was responsible for the “political incitement” of Jared Lee Loughner, who killed six people and wounded many others (including Representative Gabby Giffords) in a 2011 mass shooting.  The Times later corrected the editorial.

The case is before Judge Rakoff, who has already scheduled an initial conference for next Friday, July 7, and whose order states the case should be ready for trial by December.

Judge Forrest: Ivanka Trump Must Sit for Deposition in Suit Over Copycat Shoes

In an Order Friday in a case in which an Italian fashion company accuses Ivanka Trump’s fashion label of creating copycat shoes (see our coverage of the complaint here), Judge Forrest ordered Ms. Trump to appear for a two-hour deposition, notwithstanding her claims to have had no personal involvement in the underlying issues: Continue Reading

Judge Kaplan: Plaintiff Who Live-Streamed Childbirth Must Pay News Networks’ Attorneys’ Fees for Dismissed Copyright Suit

In an opinion Wednesday, Judge Kaplan awarded attorneys’ fees to news networks that broadcast brief excerpts of the plaintiff’s live-streaming on Facebook of his partner’s childbirth.  Alongside the broadcasts, the networks offered “social commentary about the phenomenon of someone publicly live-streaming a life event that traditionally is considered personal.”  Judge Kaplan dismissed the plaintiff’s copyright claims on fair use grounds, and in the ruling Wednesday, he found the case so meritless as to justify fee-shifting: Continue Reading

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