On Tuesday, Judge Carter granted summary judgment to defendants Granite State Insurance Company and Berkshire Hathaway Specialty Insurance Company against plaintiff KM Tactical, LLC in an insurance coverage suit. KM Tactical had sued defendants for coverage or indemnification against government lawsuits alleging that KM Tactical marketed and sold unfinished firearm frames and receivers used to assemble untraceable “ghost guns.” In these lawsuits, the State alleged that KM Tactical failed to impose controls on these sales and promoted its products in a way designed to attract customers seeking to evade firearms laws. KM Tactical allegedly knew, intended, or was willfully blind to the likelihood that the components would be converted into functioning unserialized guns. KM Tactical’s insurers, Granite State and BHSI, denied coverage.
Continue Reading Judge Carter: Ghost-Gun Retailer Not Entitled to Coverage of Lawsuits Brought by NY State Due to Foreseeable Harm
Judge Cronan: Plaintiffs Fail to Allege Injury-in-Fact Against Supergoop Sunscreen, Again
On Tuesday, Judge Cronan dismissed for the second time plaintiffs’ putative class action alleging that defendant Supergoop’s sunscreen contains a lower SPF than labeled. Both times, the Court found that plaintiffs failed to establish standing by inadequately pleading injury-in-fact.
Rather than pursuing a direct theory of injury based on the products actually purchased, plaintiffs argued a theory of injury “via indirect means by linking the results of their independent testing of the same product line to the Purchased Products.” The named plaintiffs purchased Supergoop sunscreen on four separate occasions throughout 2023 and 2024. However, they did not test the SPF levels of the bottles they bought. Instead, counsel for plaintiffs arranged for the SPF testing of separate bottles of the same type of sunscreen, purchased in a different month in 2023, on the theory that the testing would apply to “all products by the same manufacturer that have the same combination of active ingredients.”
Continue Reading Judge Cronan: Plaintiffs Fail to Allege Injury-in-Fact Against Supergoop Sunscreen, AgainJudge McMahon: DOGE Lacks Statutory Authority to Establish Attorney-Client Privilege with Other Agencies
On Thursday, Judge McMahon granted a motion by a putative class of federal grant recipients to compel the production of certain documents withheld by defendants National Endowment for the Humanities (NEH) and the Department of Government Efficiencies (DOGE) as privileged. The underlying discovery pertains to a class action challenging the mass termination of approximately 1,400 NEH grants last year.
Continue Reading Judge McMahon: DOGE Lacks Statutory Authority to Establish Attorney-Client Privilege with Other AgenciesJudge Liman: Relevance of Documents to Summary Judgment “Not a Threshold Issue” for Sealing Determinations
On Tuesday, Judge Liman ordered the sealing of certain documents in Blake Lively’s ongoing lawsuit alleging sexual harassment and retaliation claims against Justin Baldoni and his production company, in connection with the filming of It Ends With Us. The parties had filed various motions to seal and unseal in connection with Lively’s motion for spoilation sanctions and defendants’ motion for summary judgment.
Continue Reading Judge Liman: Relevance of Documents to Summary Judgment “Not a Threshold Issue” for Sealing DeterminationsJudge Kaplan Gives 20% Haircut To Attorneys’ Fees For Appeal, Finding 100 Hours For Argument Prep “Lavish”
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”Judge Vargas: Kendrick’s “Not Like Us” is Nonactionable Opinion
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 OpinionJudge Ho: Claims Arising From Freezing Oocytes Sound in Ordinary Negligence, Not Medical Malpractice
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
Judge McMahon Upholds Omnicare Jury Verdict Where Basis Was More Than “Sheer Surmise and Conjecture”
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
Judge Furman Permanently Enjoins Executive Order Penalizing Providing Services to Sanctioned Persons Associated with the International Criminal Court
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 CourtJudge Ho Exercises Discretion to Deny Government’s Bond for Seized Luxury Superyacht Upkeep Costs
On Wednesday, Judge Ho denied the government’s motion for a cost bond pending appeal in a civil asset forfeiture case against defendant-in-rem the M/Y Amadea, a 348-foot luxury superyacht purportedly owned by a Russian national subject to economic sanctions. Since seizing the superyacht, the government has spent approximately $32 million on transportation, maintenance and storage, and now seeks bond for approximately $25 million in incurred taxable costs. In related proceedings, the claimants have appealed the forfeiture of the Amadea, and the government estimates that the appeal will take approximately one year and incur another $10 million in taxable costs.
Continue Reading Judge Ho Exercises Discretion to Deny Government’s Bond for Seized Luxury Superyacht Upkeep Costs