In an MDL brought by private plaintiffs challenging Google’s allegedly monopolistic digital advertising practices, Judge Castel ruled on Monday that Google was precluded from relitigating issues decided in an April bench trial ruling in the Eastern District of Virginia. The Virginia case involved similar monopolization allegations, but was brought by DOJ and state attorneys general.

Judge Castel found that the elements for issue preclusion were met — that is, that the Virginia case involved the same issues, that Google had a fair chance to litigate the issues, and that they were necessary to a final judgment — but noted that issue preclusion, as an equitable doctrine, required him to also consider the overall fairness of binding a litigant to adverse findings from another case.

On that point, Judge Castel found “no unfairness to Google” in applying issue preclusion, especially given the “massively high stakes” of the Virginia case:

Continue Reading Judge Castel: Google Barred From Relitigating Issues Decided In DOJ Digital Ad Monopoly Case

On Wednesday, Reddit Inc. sued Perplexity AI and three “data scrapers,” alleging the companies are circumventing its technological safeguards to unlawfully acquire Reddit’s copyrighted data to “feed” Perplexity’s artificial intelligence model.

Reddit is one of the largest online discussion platforms in the world and “comprises nearly two decades of human conversational data organized across interest-based, user-created communities (referred to as “subreddits”) spanning subjects on virtually every topic imaginable.” According to Reddit, this human-generated content is “widely seen as invaluable to AI companies,” who require a consistent source of new data to “train and operate their AI products.” Reddit “does not permit unauthorized commercialization of Reddit content absent an express agreement with guardrails in place to ensure that Reddit and its users’ rights are protected.”

Continue Reading Reddit Sues Perplexity AI and Data Scrapers for “Industrial-Scale” Theft of “Valuable Copyrighted Content”

On Tuesday, Judge Kaplan awarded approximately $500,000 attorneys’ fees, under a contractual fee-shifting provision, to a defendant that won a motion to dismiss and defended the win on appeal. The plaintiff had sought to rescind certain transactions as inconsistent with the securities laws, but the defendant successfully moved to dismiss the complaint back in February 2024. The Court declined to rule on defendant’s motion for contractually-mandated attorneys’ fees until the appeal was finalized. After the Second Circuit affirmed the dismissal in August, the defendant renewed its motion, based on agreements between the parties that provided for “reasonable attorney’s fees and costs” in any litigation.

Continue Reading Judge Kaplan Gives 20% Haircut To Attorneys’ Fees For Appeal, Finding 100 Hours For Argument Prep “Lavish” 

Earlier today, Judge Vargas dismissed Drake’s defamation suit against his recording company of 20 years, UMG Recordings, Inc., stemming from “perhaps the most infamous rap battle in the genre’s history, the vitriolic war of words that erupted between superstar recording artists Aubrey Drake Graham (‘Drake’) and Kendrick Lamar Duckworth (‘Lamar’ or ‘Kendrick Lamar’) in the spring of 2024.” Drake alleged that UMG intentionally published and promoted Kendrick Lamar’s song “Not Like Us,” which accused Drake of being a pedophile, while knowing the accusations were false and defamatory.

The court held that “Not Like Us” was “nonactionable opinion” and therefore not defamatory. The deciding factor of the analysis was “the overall context in which the assertions were made”:

Continue Reading Judge Vargas: Kendrick’s “Not Like Us” is Nonactionable Opinion

We’re excited to announce the launch of The Mother Court: SDNY Criminal Law Blog, a new blog from Steptoe’s Investigations & White Collar team. Focused on criminal law developments in the US District Court for the Southern District of New York (SDNY), the blog offers timely analysis of key rulings, emerging trends, and noteworthy applications of existing doctrine.

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On Thursday, Judge Ho largely denied the motions for summary judgment of three fertility-services-related defendants against negligence claims stemming from the failed freezing of unfertilized eggs (oocytes). In 2014, Plaintiff Larisa Lev-Ary underwent a medical procedure to extract and store her oocytes. Sixteen of these oocytes were deemed viable and subsequently frozen until 2021, when they were thawed for fertilization. At that time, it was discovered that the oocytes “were all destroyed and unusable.”

In a matter of first impression, the Court asked whether the alleged breaches gave rise to ordinary negligence or medical malpractice claims:

The Court has been unable to identify any cases that directly address the precise question presented here—i.e., whether claims arising from the act of freezing oocytes sound in medical malpractice or in ordinary negligence. But the principle articulated by the New York Court of Appeals in Weiner—that claims arising from acts that are “not linked to the medical treatment of a particular patient” sound in ordinary negligence—compels the conclusion that Ms. Levy-Ary’s claim against AFS arising from the freezing of her oocytes do not sound in medical malpractice. True, freezing oocytes is certainly related to medical treatments, as it follows one medical treatment (the retrieval of the oocytes) and may precede another one (e.g., implantation of an embryo). But that is also true of the testing of donated blood for infectious diseases, which similarly follows one medical treatment (the drawing of blood), and may precede another one (e.g., transfusion)—and the Court of Appeals nevertheless concluded that blood testing is not an act “linked” to such treatment for purposes of determining whether a claim falls within the realm of medical malpractice. Similarly, here, the act of freezing oocytes itself is not “linked to the medical treatment of a particular patient,” and therefore claims arising from that act do not sound in medical malpractice.

In its decision, the Court declined to extend the holding of Bledsoe v. Ctr. for Hum. Reprod., 207 N.Y.S.3d 519, 521 (App. Div. 1st Dept. 2024). Bledsoe held that “preparing” eggs to be frozen “would fall within the realm of medical malpractice,” based on the “special skills” required. In contrast, the alleged action here was not “preparing” the oocytes to be frozen, but rather the “actual act of freezing” them. Absent controlling authority from the New York Court of Appeals, the Court explained that Appellate Division decisions were merely “helpful indicators,” and that the Court of Appeals’ statement in Weiner was “the clearest relevant guidance” given that the allegations in this matter were not based on the preparation of the oocytes.

The case is 23 Civ. 05504.

Last week, Judge Analisa Torres issued a temporary restraining order, seizure order, and order to show cause against unidentified sellers of counterfeit tour merchandise ahead of a Benson Boone concert at Madison Square Garden. Plaintiff Ceremony of Roses Acquisition LLC (“Ceremony of Roses”) alleges that it possesses the exclusive right to sell merchandise bearing Benson Boone’s federally registered trademarks, and highlighted in its moving papers that similar seizure orders had issued ahead of tours from other artists, including Harry Styles, Nicky Manaj and the Jonas Brothers.

Continue Reading Judge Torres Issues TRO Against Sellers of Infringing Concert Merchandise

On Monday, Judge McMahon denied a series of outstanding post-trial motions in the long-running Omnicare litigation, in which the Government alleged under the False Claims Act (FCA) that Omnicare filed over 11.5 million false claims with government programs for prescription medication dispensed without a proper prescription. In April, the jury found for the Government, awarding over $130 million in damages. In July, the Court awarded $542 million in trebled damages against Omnicare and $165 million against both Omnicare and CVS.

After the jury verdict, Omnicare and CVS filed motions for judgment as a matter of law and for a new trial. The motions primarily argued that the jury did not have “sufficient evidentiary basis to find” falsity, materiality and scienter under the FCA. After pointing to portions of the record that supported the jury’s findings, the Court explained that it didn’t need to address all of defendants’ numerous arguments regarding lack of evidence:

Omnicare mounts literally dozens of additional attacks on the evidence, but it is not necessary to lengthen this opinion by addressing each and every one of them. For the purposes of a Fed. R. Civ. P. 50 motion, as long as it is clear that the jury verdict was not “the result of sheer surmise and conjecture,” Omnicare’s Motion for Judgment as a Matter of Law must be denied. The discussion in the preceding pages makes it clear that the jury’s verdict was not the result of sheer surmise and conjecture. It was a result of the jury’s acceptance of the Government’s theory (but only as to some of the allegedly false claims) and its rejection of Omnicare’s defenses. There was ample evidence to support both conclusions.

In an opinion Friday, Judge Cronan quashed subpoenas issued by the country of Türkiye to various U.S. banks for information relating to Cevdet Turkyolu, a U.S. resident and member of the faith-based Gülen movement that has fallen into disfavor with the Turkish government. The subpoenas were issued under 28 U.S.C. § 1782, which authorizes U.S. courts to issue discovery in aid of foreign proceedings.

Türkiye claimed the information was relevant to criminal cases in Türkiye against Turkyolu, but Judge Cronin found insufficient evidence that the criminal cases would actually go forward or that the requested evidence could be used. In addition, as a matter of discretion, Judge Cronan found that the suspicious circumstances of the subpoenas “weigh[ed] heavily” against enforcement of the subpoenas. In essence, there was reason to think the subpoenas were issued as political retaliation:

Continue Reading Judge Cronan Quashes “Troubling” Turkish Government Subpoenas Seemingly Intended As Political Retaliation

On Wednesday, Judge Furman granted a permanent injunction against an Executive Order imposing civil and criminal penalties on those who provide “services” to certain persons associated with the International Criminal Court (“ICC”). The plaintiffs, two law professors, had in the past submitted amicus briefs in support of the ICC, conducted trainings, and advised certain ICC individuals. Consistent with a 2020 decision from Judge Failla concerning a similar Executive Order (subsequently withdrawn in the Biden administration), Judge Furman determined that the new Order was “content-based” and therefore subject to strict scrutiny. As Judge Furman explained, “Plaintiffs are free to speak if their speech does not have the function or purpose of benefitting [the head of the ICC’s Office of the Prosecutor]; but they are subject to civil and criminal penalties if it does have that function or purpose.”

The Court found the government’s arguments to the contrary “unpersuasive”:

Continue Reading Judge Furman Permanently Enjoins Executive Order Penalizing Providing Services to Sanctioned Persons Associated with the International Criminal Court