Matthew Popowsky

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In a joint letter to the Court filed yesterday, online TV provider Aereo and the major broadcast networks laid out their positions on the next steps in their litigation following the Supreme Court’s recent ruling in favor of the broadcasters.  Despite the Supreme Court’s ruling, the battle appears set to rage on before Judge Nathan.
Continue Reading Another Wrinkle in Aereo Case: Did the Supreme Court Turn Aereo Into a Cable Company?

In an opinion issued yesterday, Judge Crotty denied Goldman Sachs’ motion for reconsideration of his refusal to dismiss securities fraud claims that Goldman argued were inactionable “puffery.”  See our post on that decision here. Goldman had pointed to three subsequent Second Circuit opinions — in City of  Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG, Carpenters Pension Trust Fund of St. Louis v. Barclays PLC, and Boca Raton Firefighters & Police Pension Fund v. Bahash — that it argued had changed or clarified controlling law on puffery.  Judge Crotty disagreed:
Continue Reading Judge Crotty: Three New Second Circuit Opinions on “Puffery” Do Not Merit Reconsideration in Goldman Case

In an opinion issued yesterday, Judge Scheindlin rejected a proposed settlement between the New Jersey Department of Enviornmental Protection and oil company Citgo over claims related to the potential contamination of water supplies with a kind of gasoline additive known as MTBE.  The non-settling defendants objected to the proposed $23 million settlement on the grounds that it did not fully account for Citgo’s proportionate share of liability. Judge Scheindlin sustained the objection:
Continue Reading Judge Scheindlin Rejects Proposed Settlement of Water Contamination Suit Against Citgo on Fairness Grounds

In an opinion issued yesterday, Judge Stein certified two classes of plaintiffs – a national class and a New York class – bringing fraud claims against internet dating web site It’s Just Lunch (“IJL”).  The class representatives claim to have been defrauded into paying $1,000 for a year-long membership to IJL based on “corporate‐mandated…

In an opinion issued today, Judge Engelmayer dismissed defamation and false-light invasion of privacy claims brought against a law professor who wrote a law review article (and gave a related lecture) about sexual discrimination in the workplace.  The article and lecture by Professor Zachary Kramer, titled “Of Meat and Manhood,” discussed problems with courts’ treatment of gender stereotyping claims.  The author used as a case study a lawsuit that accused a managing director of Credit Agricole named Robert Catalanello of workplace discrimination for harassing a vegetarian employee on the assumption that he was gay. After Kramer published the article, the employee, Ryan Pacifico, dropped the discrimination claim against Catalanello.  Catalanello sued Kramer for defamation and false-light invasion of privacy.  Judge Engelmayer dismissed the defamation claims as protected by the fair-report privilege or non-actionable opinion under New Jersey law:
Continue Reading Judge Engelmayer Rules that Law Review Article Discussing Dismissed Allegations of Discrimination Is Not Defamation

Judge Forrest today dismissed a lawsuit brought by former Olympic ice skater Oksana Baiul against more than 20 individuals and entities she accused of stealing more than $57 million she had earned through skating performances and endorsements.  The suit, which Judge Forrest characterized as “frivolous and, frankly, bizarre,” raised 17 claims, including civil RICO, common…

In an opinion issued today, Judge Berman dismissed a putative securities fraud class action brought by shareholders of Ventrus Biosciences against the company and two of its officers. As Judge Berman summarized the plaintiffs’ claims:

At the core of the Complaint is the allegation that Defendants, as part of their efforts to raise capital for Ventrus, “touted” pre-2008 Phase II test results for VEN 309 conducted by the drug’s patent holder, Sam Amer, “[d]espite the fact that the small testing groups and subjective endpoints used in Amer’ s studies could not produce a reliable gauge of the efficacy of VEN 309.” Plaintiffs allege that Defendants’ misrepresentation of these Phase II test results-which were obtained during the second of three required stages of testing before a drug may obtain FDA approval-“misled investors as to VEN 309’s previous testing success and anticipated FDA approval,” and caused Plaintiffs to suffer economic loss when, on June 25, 2012, Ventrus disclosed that its Phase III clinical trial for VEN 309 “did not meet its endpoints” and that Ventrus would abandon its development of VEN 309.

Continue Reading Judge Berman Rules “Touting” of Unsuccessful Drug Trial Is Not Securities Fraud

Judge Abrams yesterday dismissed the complaint of a former Federal Reserve bank examiner who claimed she was fired after identifying a lack of internal controls at Goldman Sachs.  The plaintiff had alleged that she told her supervisors at the Fed that Goldman had “no firmwide conflict of interest policy,” in violation of SR 08-08, a Federal Reserve guideline that served as the basis for the plaintiff’s examination of Goldman.  When she refused to alter her conclusion, the plaintiff alleged, she was fired in retaliation. The Court dismissed the claims under the Federal Deposit Insurance Act’s whistleblower statute (Section 1831j).  First, Judge Abrams held that the statute did not apply to individuals, dismissing the claims against the plaintiffs’ former supervisors.  Moving next to the claims against the New York Fed, Judge Abrams held that neither of the plaintiff’s theories stated a claim under the whistleblower statute:
Continue Reading Judge Abrams Dismisses Whistleblower Suit Against New York Fed