Tag Archives: Judge Swain

Judge Swain: Bare Allegation that Courthouse Contractor Was Underpaid Does Not Satisfy Rule 8

In an opinion yesterday, Judge Swain dismissed a case brought by a subcontractor who worked on the SDNY courthouse and claims to have been underpaid by $20 million.  She found the complaint lacked even the most basic details required under Rule 8: [The plaintiff]  alleges generally that it believes it is owed more than $20,000,000 … Continue Reading

Judge Swain Dismisses Infringement Claims Concerning Video Game Featuring LeBron and Kobe’s Tattoos

Yesterday, Judge Swain dismissed claims by Solid Oak Sketches, LLC alleging that Take-Two Interactive Software and other defendants infringed Solid Oak’s copyrights by prominently featuring eight tattoos of five NBA players (including LeBron James and Kobe Bryant) in Take-Two’s popular NBA 2K16 video game (see previous coverage here). Judge Swain held that the plaintiffs could not recover under … Continue Reading

Complaint Alleges Copyright Infringement for Video Game Featuring LeBron and Kobe’s Tattoos

In a complaint filed yesterday, Solid Oak Sketches, LLC alleges that Take-Two Interactive Software and other defendants infringed Solid Oak’s copyrights by prominently featuring eight tattoos of five NBA players (including LeBron James and Kobe Bryant) in Take-Two’s popular NBA 2K16 video game.  Solid Oak Sketches entered into copyright license agreements with each of the artists … Continue Reading

Judge Swain Rejects Artist’s Copyright Claim Against Starbucks Over Ad Campaign

In an opinion yesterday, Judge Swain dismissed artist Maya Hayuk’s claim that, after she rejected a request from Starbucks for her to create material for a new ad campaign, Starbucks simply copied the “core” of her art for the campaign anyway.  Below is one example of the actual campaign compared to the plaitniff’s art: More are here.… Continue Reading

Judge Swain: CPLR “Leave and Mail” Service Insufficient for Nonresidents Where Claims Arise Outside New York

In an opinion yesterday, Judge Swain ruled that “leave and mail” service under the CPLR was inconsistent with due process when used on a nonresident, at least where the case arises outside New York.  The petitioner had sought to confirm an arbitration award against an Indian citizen who lives abroad but who apparently rents an … Continue Reading

SDNY Blog Returns as Steptoe Blog

The SDNY Blog is relaunching as a publication of Steptoe & Johnson LLP.  We expect to post several times a week on decisions and other developments in the Southern District of New York.  You can find us right here at www.sdnyblog.com, or follow us on Twitter or Facebook. Here’s a quick summary of what’s been happening in the Southern … Continue Reading

Judge Swain, Based on “Implicit” Overruling of Second Circuit, Rules 3-Year Limit to Sue Over False Securities Offerings Is Not Subject to “Extender” Law

In an opinion today, Judge Swain ruled Section 13 of the Securities Act, which states that no action may be brought “more than three years after the security was bona fide offered to the public” was not extended by the so-called “FDIC Extender Provision” of the Financial Institutions Reform, Recovery, and Enforcement Act (or “FIRREA”) … Continue Reading

Judge Swain Dismisses GM “Channel Stuffing” Securities Class Action

In an opinion yesterday, Judge Swain dismissed a securities class action accusing GM of “channel stuffing” — forcing excess inventory onto dealers to create the appearance of improving revenue — because the inventory at dealerships was fully disclosed: The fundamental flaw of Lead Plaintiff’s thesis is that is own Amended Complaint reflects public knowledge of … Continue Reading

Following Preclusion of Plaintiffs’ Expert, Judge Swain Dismisses Pfizer Shareholder Class Action

As we reported in May, Judge Swain precluded the trial testimony of the plaintiffs’ loss causation and damages expert in a shareholder class action accusing Pfizer of concealing the cardiovascular risks of two drugs, Celebrex and Bextra.  At the time we wrote:  “Without a damages expert, it is unclear how the plaintiffs can prove their … Continue Reading

Judge Swain Strikes Plaintiffs’ Damages Expert in Pfizer Shareholder Class Action

In an Order yesterday, Judge Swain precluded the trial testimony of the plaintiffs’ damages expert in a shareholder class action accusing Pfizer of concealing the cardiovascular risks of two drugs, Celebrex and Bextra.  Without a damages expert, it is unclear how the plaintiffs can prove their case at trial, which is currently scheduled for September. … Continue Reading

Judge Swain Stays Securities Class Action Pending Supreme Court Challenge to Fraud-on-The-Market Presumption

In a one-page Order Wednesday, Judge Swain stayed a securities class action accusing AIG of concealing its exposure to subprime securities pending a ruling from the Supreme Court in Halliburton Co. v. Erica P. John Fund, Inc., a case challenging the presumption of classwide reliance on the price of securities that are traded in efficient … Continue Reading

Judge Swain Allows Costco To Proceed With Defense That “Tiffany” Trademark Has Become Generic

In an opinion today, Judge Swain denied Tiffany’s pre-discovery summary judgment motion in a suit it brought against Costco for trademark infringement. She found that there were fact questions as to whether, as Costco contends, the trademark “Tiffany” has become a generic term for certain types of ring settings: In support of its argument that … Continue Reading

Judge Swain Refuses to Enjoin Dish Network Features Allowing Recording of All Prime Time Shows and Commercial Skipping

In an opinion yesterday, Judge Swain refused to enjoin Dish Network’s technology allowing viewers to record all prime time network shows (called “Prime Time Anytime” or “PTAT”) and then skip commercials with the touch of a button, instead of fast‑forwarding (called “Auto Hop”). Judge Swain ruled that the combination of these features did not constitute direct … Continue Reading

Judge Swain Dismisses Securities Act Claims Against PwC, Citing Recent “Subjective Falsity” Standard From Second Circuit

Judge Swain yesterday granted a motion for judgment on the pleadings in favor of PricewaterhouseCoopers and certain other defendants with respect to certain Securities Act claims in a class action relating to AIG’s subprime exposure.   The complaint alleged that certain accounting statements in offering documents were false, but expressly disclaimed that they were fraudulently made … Continue Reading

Judge Swain Sends Dispute Over Dish Networks’ Commercial-Skipping DVR to California

In a ruling yesterday, Judge Swain denied Dish Networks’ motion for an anti-suit injunction against the major broadcast television networks, holding that the majority of the claims at issue should be heard in the California district court where the TV networks had filed suit against Dish. The suits concern Dish Network’s new “auto hop” function, … Continue Reading
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