Judge Rakoff Grants Sanctions for “Objector Extortion” in Proposed Class Action Settlement

By Michael Keough on Posted in SDNY Blog

Yesterday, Judge Rakoff sanctioned an attorney for an objector to the $3 billion Petrobras securities litigation settlement (see our full coverage of the Petrobras litigation here).  Judge Rakoff had approved the settlement over the objections, after which the objectors filed an appeal.  According to the class plaintiff, the appeals were part of an “extortionist agenda” to extract a monetary settlement in exchange for dismissing their appeals.

Judge Rakoff warned against the rise of frivolous objections to class settlements: Continue Reading

Judge Castel:  Attorney Review of Draft Corporate Documents Is “Prudent,” Not “Subterfuge” to Evade Discovery

By Charles Michael on Posted in SDNY Blog

In an opinion yesterday, Judge Castel denied in part a motion to compel certain drafts of sales and marketing documents withheld as privileged in an antitrust case.  The plaintiff argued that the attorneys were not providing legal advice but, instead, “‘scrubbing’ or ‘vetting’ these documents ‘to avoid having a jury see the unvarnished truth.”  Judge Castel disagreed, and emphasized that it is perfectly appropriate for lawyers to review documents before any wider circulation: Continue Reading

Ja Rule: Social Media Posts Do Not Create Liability for Failed “Fyre Festival”

By Michael Keough on Posted in SDNY Blog

Last week, Jeffrey Atkins (better known as Ja Rule) asked Judge Castel to dismiss claims against him stemming from the “Fyre Festival,” a 2017 music festival in the Bahamas that descended into chaos after organizers were unable to deliver the luxury accommodations, celebrity chefs, and musical acts that attendees were expecting (see NYT coverage here).  Plaintiffs accused Atkins specifically of making two social media posts upon which the plaintiffs relied – promising that the festival would be “the biggest FOMO-inducing event of 2017” and promising attendees the day before the festival that “the stage is set” (see complaint here).

In his motion to dismiss, Atkins argued that these two posts were the only statements upon which plaintiffs could even have claimed to relied, as other statements by Atkins did not become publicly known until after the festival occurred: Continue Reading

Judge Pauley: Despite 40,000 Words of Summary Judgment Briefing, Photo of Snoozing Mouse Is Enough to Show There Are Fact Issues

By Charles Michael on Posted in SDNY Blog

In an opinion yesterday, Judge Pauley denied summary judgment in a case alleging that a certain rodent repeller devices are ineffective, contrary to the defendant’s allegedly false representations.

He noted that the parties had filed over 40,000 words in briefing the issues, but that three photos (including the one below) were sufficient to decide the motion.  The photos showed that “mice can apparently relax comfortably under a Repeller and even appear to be so drawn in by its siren song that one would scale a wall just to snooze on it,” which left “this Court wondering how [the defendant] can argue that there is no disputed issue of material fact as to efficacy.”

Airbnb Challenges NYC’s Homesharing Monitoring Law

By Michael Keough on Posted in SDNY Blog

Last week, Airbnb filed a complaint challenging the city’s new ordinance requiring homesharing platforms to share data about hosts and guests to the Mayor’s Office of Special Enforcement.  According to Airbnb, the new ordinance allows the city to collect wide-ranging categories of non-public information:

“[T]he Ordinance requires Internet homesharing platforms to turn over personal information about their hosts, much of which is not made public through the platforms. The Ordinance also requires homesharing platforms to turn over their own non-public and commercially sensitive information, including detailed breakdowns of revenues and technical information about listings. To the extent a platform collects rent, it is also required to hand over highly sensitive bank account information about how guests choose to pay and how much. All of this is data the Office of Special Enforcement could not otherwise obtain without precompliance review, and the Ordinance permits that agency to use and share the data however and whenever it chooses, without any meaningful limitation. In so doing, the Ordinance breaches critical privacy protections both for homesharing platforms like Airbnb and for the New Yorkers who share their homes on these platforms.  Put another way, the Homesharing Surveillance Ordinance requires Airbnb to report on a monthly basis volumes of otherwise private information about who New Yorkers choose to invite into their homes, where those homes are located, when and for how long the guests stay, and what the guests are doing there.

According to Airbnb, the ordinance is the result of a lobbying effort by New York’s hotel industry to prevent competition from homesharing sites.

The complaint asks for injunctive relief, claiming that the new ordinance violates the First Amendment, the Fourth Amendment, and the federal Stored Communications Act.

The case is currently pending before Judge Engelmayer.

Judge Stanton Grants Preliminary Injunction Against Creator of “Grand Theft Auto V” Cheat Software

By Michael Keough on Posted in SDNY Blog

In an opinion last week, Judge Stanton granted video game manufacturer Take-Two’s request for an injunction against the creator of two software programs that allowed users to cheat at Take-Two’s “Grand Theft Auto V” video game.  Among other functions, the computer programs allow users to use an unlimited amount of in-game currency that otherwise had to be purchased from Take-Two.  Take-Two alleged that the cheat software violated Take-Two’s copyright in “Grand Theft Auto V” and also violated the terms of the user agreement.

In granting the preliminary injunction, Judge Stanton focused on the harm to both the public as well as Take-Two: Continue Reading

Judge Daniels Narrows Trademark Case Against Company Offering “Frozen Themed” Costumed Characters for Children’s Parties

By Michael Keough on Posted in SDNY Blog

Last week, Judge Daniels granted in large part a summary judgment motion that Characters For Hire, a company that provides costumed characters for children’s events, had filed in response to trademark, unfair competition and and similar claims.  According to the plaintiffs (Disney, Marvel, and Lucasfilm), Characters for Hire’s costumes, including ones named “Frozen Themed,” “Avenging Team,” and “Star Battles,” are strikingly similar to well-known characters from the plaintiffs’ Frozen, Avengers, and Star Wars franchises.

Judge Daniels rejected the plaintiffs’ claims of consumer confusion, noting that whether children believed the generic characters were the same as the more famous Disney versions was irrelevant: Continue Reading

Judge Koeltl Allows DNC to Serve Wikileaks by Twitter

By Charles Michael on Posted in SDNY Blog

Last week, via a memo endorsement, Judge Koeltl granted the Democratic National Committee’s motion to serve Wikileaks by Twitter in the DNC’s case over the 2016 election hacks (see our coverage here).

The DNC argued that “[w]hile WikiLeaks’ physical presence is difficult to discern, it has a robust online presence, including an active presence on Twitter, using the handle @WikiLeaks.”  From that account, Wikileaks in fact had acknowledged reading the DNC’s complaint.  As the DNC argued in its motion, “From April 20 to April 22, WikiLeaks tweeted about the lawsuit at least six times, in one instance including a screenshot of part of the complaint, and in three instances directing followers to analyses of the complaint.”

On Friday, as Judge Koeltl authorized, the DNC served the initiating documents via the following tweet :

For another case involving social media service of process, see this post from five years ago in which Judge Engelmayer denied a motion to serve Indian telemarketers via Facebook.

Judge Stein:  Class Periods Should Have Firm End Dates

By Charles Michael on Posted in SDNY Blog

In an opinion today, Judge Stein denied a motion to decertify a class action against the dating service “It’s Just Lunch” (see our prior coverage here) and concluded that many of the objections to the class could be solved by modifying the previous class definition so that there was a firm end date for the class period: Continue Reading

Judge Daniels Dismisses Case Against Fox News Over Alleged Conspiracy Theories for DNC Staffer’s Death

By Michael Keough on Posted in SDNY Blog

Yesterday, Judge Daniels dismissed a complaint filed by the family of murdered DNC staffer Seth Rich against Fox News, which alleged that Fox News and two contributors intentionally exploited the murder of DNC staffer Seth Rich during the 2016 election season.  According to the complaint,  Rich was murdered in Washington in what authorities believed was a botched robbery; Fox News then allegedly reported a false story that Rich had been murdered after leaking thousands of DNC emails to Wikileaks (see our complete coverage here).

According to Judge Daniels, while the statements by a Fox News contributor may have been false, they did not rise to the level of “outrageous” conduct required for intentional infliction of emotion distress: Continue Reading

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