Judge Engelmayer: “Short Weighting” Class Action Against Whole Foods Disproven by “Lived Kitchen Experience”

In an opinion yesterday, Judge Engelmayer dismissed a class action accusing Whole Foods of exaggerating the weights of certain pre-packaged foods, so as to overcharge customers.  The genesis of the suit was an analysis by New York City’s Department of Consumer Affairs (DCA) finding that 89% of tested products had incorrect weights.

The lead plaintiff, Sean John, claimed to have bought cupcakes and cheese from Whole Foods, but, since he could only speculate that those particular purchases were weighed wrongly, Judge Engelmayer found he lacked standing:

Although John’s testimony can establish that he purchased cupcakes and cheeses from two Whole Foods stores, there is no competent, non-speculative, evidence that any cupcake or cheese item John bought weighed less than the weight used to price it. The DCA investigation, in the form of spot checks at certain stores, does not support the inference of systematic over-pricing. And John in discovery did not adduce competent evidence of a uniform practice by Whole Foods of falsely inflating the weight of its pre-packaged goods in general, or of cupcakes and cheese in particular.

John’s argument that there was systematic overpricing was as follows: because “Whole Foods utilizes uniform recipes and procedures for pre-packaged cupcakes and cheeses,” “a single instance of a short-weight cupcake or cheese item could be found to dictate that all food items of the same type, having been produced pursuant to the same specifications, must have been identically short-weight.” Judge Engelmayer found this argument “in tension with lived kitchen experience”: Continue Reading

Judge Oetken: MLB Umpire Can’t Bring Bias Claims Under Conflicting State Laws

On Thursday, Judge Oetken dismissed a Major League Baseball umpire’s discrimination claims under the Ohio Civil Rights Act, holding that the plaintiff could not seek relief under the conflicting laws of two different states based on a single course of employer conduct.  The plaintiff alleged that the MLB discriminated against him on the basis of race and brought claims under Ohio and New York law.

Plaintiff argued that the “transitory nature” of his job meant that he is discriminated against in every state in which he works.  However, because plaintiff challenged the same acts under both laws, Judge Oetken applied a choice of law analysis and found that the two state laws conflicted because Ohio permits punitive damages while New York does not.   Judge Oetken held that New York had a greater interest in the litigation and dismissed the Ohio claims: Continue Reading

Judge Castel: Plaintiffs Fail to State Claim Against Ja Rule for Fyre Festival

This week, Judge Castel dismissed claims against Jeffery Atkins (better known as Ja Rule) over his role in the disastrous 2017 Fyre Festival (see our previous post here).

Judge Castel held that, while tweets and Instagram posts could be considered material misrepresentations, plaintiffs failed to plead a fraud claim because they did not allege that they had seen the tweets or Instagram posts in question (and thus could not have relied on them).  Judge Castel also focused on the forward-looking nature of the statements that Atkins made:

Atkins and Margolin were participants in organizing or promoting a large-scale event. There is no assertion that the Festival when first conceived or introduced to the public was intended not to go forward or that defendants intended not to perform by organizing the advertised amenities and accommodation. The Complaint states that defendants were aware for “months” that there were no showers, electricity, bathrooms, medical services, or activities on the island. This, without more, does not plausibly allege that defendants months before the event intended not to hire or contract for such services. Many of the statements alleged in the Complaint, such as those from the Fyre Festival advertising video and the Festival’s FAQ page, arise from promotional materials likely released early-on in the lifespan of an event. Even if the date of these statements were alleged, the plaintiffs have not plausibly alleged that the statements were made with a fraudulent intent. The statements are promissory statements regarding future conduct that without more do not give rise to a claim in fraud.

Second Circuit Affirms Judge Buchwald in Trump Twitter Case

In the ongoing case regarding whether President Trump can block individual Twitter users under the First Amendment (see our previous coverage here), the Second Circuit earlier this week affirmed Judge Buchwald’s earlier ruling that the president’s Twitter account is a public forum and that blocking individual users represented unconstitutional viewpoint discrimination.

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Judge Furman: 11 DOJ Attorneys Cannot Withdraw from Census Citizenship Question Case

As part of the ongoing litigation over the citizenship question (see our previous coverage here), Judge Furman today denied a request by 11 Department of Justice attorneys (some of whom had worked on the case since 2018) to withdraw from the case.  According to Judge Furman, the requirements of Local Rule 4.1 had not been met, citing in part the Department of Justice’s own urgency in seeking a resolution of the issue ahead of the 2020 census:

Defendants’ motion is patently deficient (except as to [two attorneys] who have left the Department of Justice and the Civil Division, respectively). Defendants provide no reasons, let alone “satisfactory reasons,” for the substitution of counsel.  And as to the second factor, Defendants’ mere “expect[ation] that withdrawal of current counsel will [not] cause any disruption” is not good enough, particularly given the circumstances of this case: Defendants’ opposition to Plaintiffs’ most recent motion is due in just three days; Defendants’ opposition to Plaintiffs’ anticipated motion for sanctions is due later this month; in event that Defendants seek to add the citizenship question to the 2020 census questionnaire based upon a “new rationale,” time would plainly be of the essence in any further litigation relating to that decision []. As this Court observed many months ago, this case has been litigated on the premise — based “in no small part” on Defendants’ own “insist[ence]” — that the speedy resolution of Plaintiffs’ claims is a matter of great private and public importance.  If anything, that urgency — and the need for efficient judicial proceedings — has only grown since that time.

Judge Caproni: Compliance Communications Prepared Outside of Attorney-Client Relationship Are Not Privileged

Judge Caproni recently held in the context of a SEC enforcement action that communications with an outside compliance firm were not privileged.  The communications at issue contained advice from a compliance consulting firm which, though staffed by attorneys, provided advice pursuant to a consulting agreement that specifically disclaimed the attorney-client relationship.

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Judge Furman: Sensitive Pricing Information Can’t Be Sealed Where It Goes to the “Heart of the Litigation”

In an opinion Tuesday, Judge Furman ruled that the complaint in an “international saga” of fraud in the art world must be filed publicly and without redactions, even though it contained sensitive information about transactions facilitated by the international auction house Sotheby’s.

Plaintiffs hired an art dealer to assist in purchasing a world-class art collection, and the dealer allegedly defrauded them of approximately $1 billion by purchasing the artworks himself and re-selling them to plaintiffs at inflated prices.  Plaintiffs claim that Sotheyby’s aided and abetted the fraud.  Sotheby’s sought to keep certain portions of the complaint under seal, but Judge Furman held that confidentiality concerns were insufficient because the information at issue went to the very heart of the case: Continue Reading

Supreme Court Agrees With Judge Furman that Census Citizenship Question Was Added Based on “Contrived” Rationale

The Supreme Court today, in an opinion by Chief Justice Roberts, largely affirmed Judge Furman’s conclusion (see here) that the Commerce Department’s decision to add a citizenship question to the 2020 census was based on a rationale —  to help enforce the Voting Rights Act — that was pretextual, and agreed that the matter must be remanded back to the agency to reconsider: Continue Reading

Judge Ramos: Text Message Exchange Doesn’t Satisfy Writing Requirement of Statute of Frauds

In an opinion yesterday, Judge Ramos ruled that a real estate broker could not recover a commission because the agreement was not in writing as required by the Statute of Frauds (under New Jersey law).

The broker tried to rely on a series of text exchanges, but Judge Ramos found that texts would suffice only if the client had written his name or otherwise “signed” the texts in some way: Continue Reading

Judge Failla Concludes That Kroger’s Updated Website Moots ADA Lawsuit Over Accessibility for Visually Impaired

In an opinion today, Judge Failla dismissed as moot an ADA lawsuit accusing the supermarket chain Kroger of operating a website that isn’t accessible for the visually impaired.  Kroger apparently addressed all the issues complained of.  There is a huge body of litigation in this area (see this article and this article, for example), but Judge Failla found that this was one of the rare cases where a mootness defense was raised and was compelling: Continue Reading

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