In an opinion today, Judge Furman dismissed a putative class action against a retailer, Bonobos, whose customer data (names, addresses, emails, and the like) was stolen and posted online. Judge Furman found that the plaintiff, Bradley Cooper, did not allege a level of impending harm or risk that was sufficient to establish standing to sue. Judge Furman contrasted the facts at issue with those in other cases where more sensitive information was stolen (like Social Security numbers), giving rise to high risk of identity theft.

Cooper had sought to establish standing based on his alleged risk of “credential stuffing,” which is described in the opinion as a “technique in which [hackers] enter credentials gained from a hack into third-party websites, hoping that they will match an existing account because the consumer has reused the same password elsewhere,” but Judge Furman was not persuaded: Continue Reading Judge Furman Dismisses Data Breach Class Action Because Stolen Information Didn’t Give Rise to “Impending” Harm

In an opinion Monday, Judge McMahon denied a motion by Blackberry and certain former executives for summary judgement in a securities class action. In the same ruling, she denied Blackberry’s motion to strike the plaintiffs’ Rule 56.1 statement, which allegedly contained improper legal arguments instead of factual responses.  Judge McMahon criticized the motion as “pointless” and “desperate”:

Defendants filed a Rule 56.1 statement in this case, and Plaintiffs filed their responsive paragraph-by-paragraph contention, citing evidence, of the facts in dispute. At times, Plaintiffs admittedly stray into improper legal argument in their “factual” recitations. But Plaintiffs version of the facts — and the evidence supporting that view of the facts — is perfectly apparent from reading the Rule 56.1 statement.

Defendants move to strike Plaintiffs’ responses in whole and “deem Defendants’ undisputed facts admitted.” This is a silly and pointless motion, one obviously (and desperately) made because, unless the Rule 56.1 statement is stricken, the record is replete with disputed facts. . . . .

Plaintiffs’ responses and objections, which dispute Defendants’ facts and cite to evidence that rebuts Defendants’ statement of facts, does not contravene Rule 56.1. Rather, it is Defendants’ motion to strike that is procedurally improper. To the extent that Plaintiffs incorporate legal argument into their responses and objections — and they do — this Court will simply not consider those statements.

In an opinion issued yesterday, Judge Seibel rejected a plaintiff’s argument that a defendant in a multi-defendant case must consent to removal within 30 days of service on its statutory agent, regardless of when the defendant actually received the complaint. The case was filed in New York state court against two defendants, one of whom timely removed the action. The second defendant consented to removal of the action four days after receiving the complaint from its agent for service of process, but more than 30 days after plaintiff had served the complaint on the defendant’s statutory agent (the Secretary of State). The plaintiff moved to remand, arguing that defendant’s consent to removal was late because it occurred more than thirty days after plaintiff had served the Secretary of State.

The plaintiff argued that the Second Circuit’s holding that the removal clock does not start running upon service of a statutory agent was inapplicable to cases involving the rule of unanimity, codified at 28 U.S.C. § 1446(b)(2)(A), which requires that “all defendants who have been properly joined and served must join in or consent to the removal of the action.”  According to the plaintiff, “application of cases holding that service on the Secretary of State does not start the thirty-day removal clock improperly ‘conflates’ the rule of unanimity with provisions setting out the thirty-day removal period.” Continue Reading Judge Seibel: Service on Secretary of State Does Not Trigger Clock for Consent to Removal in Multi-Defendant Case

In a complaint filed today, four minor league baseball teams sued Major League Baseball for violating the Sherman Act by allegedly orchestrating an agreement among its clubs to eliminate 40 minor league teams (out of 160) from being affiliated with major league clubs.

The Staten Island Yankees, Tri-City Valley Cats, Salem-Keizer Volcanoes and Norwich Sea Unicorns allege that MLB “collectively decided to artificially reduce the number” of affiliated minor league teams to cut expenses, instead of allowing the free market to determine which minor league teams will survive and prosper.  The Plaintiffs allege they brought the suit given the Supreme Court’s recent signaling in NCAA v. Alston, 141 S. Ct. 2141 (2021) of its willingness to reconsider MLB’s exemption from antitrust scrutiny: Continue Reading Minor League Baseball Teams Sue MLB for Antitrust Violations

In an opinion yesterday, Judge McMahon vacated the Purdue Pharma bankruptcy settlement because she found that the bankruptcy court lacked authority to issue releases in favor of the Sackler family.  (See our previous coverage here.) The family members had “offered to contribute toward a settlement, but if—and only if—every member of the family could ‘achieve global peace’ from all civil (not criminal) litigation, including litigation by Purdue to claw back the money that had been taken out of the corporation.”

But Judge McMahon concluded that there was no authority in the bankruptcy law for those releases. This is an issue that has been the subject of “long-standing conflict among the Circuits that have ruled on the question,” with no clear answer yet from the Second Circuit.

Among the reasons that Judge McMahon cited for siding with the Circuits that have refused to find authority for third party releases is the fact that Congress in 1994 authorized third-party releases in the specific context of asbestos, with the Judiciary Committee noting: “How the new statutory mechanism works in the asbestos area may help the Committee judge whether the concept should be extended into other areas.” This statement suggested to Judge McMahon that a broader authority to issue third-party releases in “other areas” did not exist in the first place, particularly given that Congress has not acted on the question since: Continue Reading Judge McMahon: Bankruptcy Court Lacked Authority to Release Sackler Family as Part of Purdue Settlement

In an opinion Friday, Judge Crotty dismissed a case brought by MyPillow CEO Mike Lindell over an article in the Daily Mail accusing him of having a secret romantic relationship with Jane Krakowski, the actress best known for her role on the TV show 30 Rock. Judge Crotty concluded that the article’s statements, even if false, were simply not defamatory: Continue Reading Judge Crotty: Falsely Accusing a Single Man of Dating an Actress is Not Defamatory

On Tuesday, Judge Cote granted Google a temporary restraining order against the operators of a blockchain enabled “botnet.”  As the complaint explains, a “botnet” is “a network of internet-connected devices (bots), each of which are infected by malware,” and whose “computing power grows with each new device that is infected.” The complaint describes the particular botnet at issue as a modern version of organized crime: Continue Reading Judge Cote Grants Google a TRO Against Operators of Malicious “Botnet”

In an order yesterday in the appeal of the Purdue Pharma bankruptcy case, Judge McMahon invited briefing, due Monday at 9:00 a.m., on whether the Sackler family, which contributed $4.5 billion to the Purdue estate in exchange for releases, abused the bankruptcy system by distributing excessive profits to themselves in the years immediately prior to the bankruptcy: Continue Reading Judge McMahon Asks for Briefing on Whether Purdue Pharma’s Profit Distributions to Sackler Family Were “Abusive”

In a potentially useful discovery order issued today, Judge Liman rejected defendants’ attempt to obtain a document-by-document privilege log from a plaintiff who had submitted a categorical privilege log. The order acknowledges the propriety of using a categorical privilege log as an “efficient means of providing information regarding claims of privilege,” even where third parties are involved in the privileged communications: Continue Reading Judge Liman: Categorical Privilege Log Appropriate Even Where Third Parties Involved in Privileged Communications