Last Thursday, Judge Caproni rejected a proposed joint scheduling order that provided for a party’s brief to be due on a Monday, citing her policy to set deadlines for the end of the week to avoid making associates work over the weekend. Specifically, Judge Caproni said:
The Court recognizes that Defendants requested that their reply
Last week, Judge Liman granted in part plaintiff ChromaDex’s motion for summary judgment on part of defendant Elysium’s counterclaim for false advertising under the Lanham Act. The case arose from a dispute between the two competitors over the sale of nutritional products claiming to improve cellular health and cellular aging. Elysium argued that statements made by a blogger regarding ChromaDex’s product were false, and should be attributable to ChromaDex under the Lanham Act, because the blogger was a ChromaDex shareholder who was paid by ChromaDex for referring customers. ChromaDex argued that it was not liable for statements that appeared on a third-party blog, regardless of whether they were false, material, or caused injury, because the statements did not constitute “advertising or promotion,” as required under the Lanham Act.
Judge Liman agreed with ChromaDex, finding that Elysium had not presented evidence that ChromaDex had an agency relationship with Shelly Albaum, the blogger. Furthermore, Judge Liman found that Elysium had not presented evidence that ChromaDex controlled the content of Albaum’s blog. Elysium cited to an email between a ChromaDex executive (Jaksch) and Albaum regarding whether the executive wanted Albaum to post a certain article. Judge Liman concluded:
Continue Reading Judge Liman: Blogger-Shareholder Touting a Company’s Product Was Not Its Agent for Purposes of Lanham Act
In a complaint filed Tuesday, a non-profit organization and a pastor from the South Bronx sued N.Y. AG Letitia James, alleging that New York’s rules governing the unauthorized practice of law (“UPL”) prevent them from advising low income clients facing debt collection lawsuits, in violation of their First and Fourteenth Amendment Rights. The non-profit organization plans to train non-lawyers to provide “reliable, free, straightforward, and narrowly circumscribed” advice to low income New Yorkers facing debt collection lawsuits “on a strictly non-commercial basis to ensure that defendants can understand their rights and respond to the debt collection lawsuits against them.” However, New York’s UPL rules make it a crime and civilly sanctionable to engage in, solicit, or aid in the provision of legal advice by non-lawyers.
Continue Reading Complaint: New York’s Rules on Unauthorized Practice of Law Violate Non-Profit’s First and Fourteenth Amendment Rights
In an opinion Friday, Judge Cote concluded that a trade secret holder’s accidental revelation of trade secret information to a competitor, in connection with due diligence for a possible transaction, could not constitute the competitor’s acquisition of the information by “improper means,” as required to prevail on a misappropriation claim. The plaintiff, TransPerfect, argued that the defendants used information learned during the diligence process to poach TransPerfect’s clients.
While Judge Cote agreed that certain information TransPerfect had shared with the defendants constituted trade secrets, she found that TransPerfect had failed to adduce evidence that defendants acquired the information by improper means, as required under the Defend Trade Secrets Act:
Continue Reading Judge Cote: Acquiring Trade Secrets Accidentally Produced In Deal Diligence Is Not Acquisition by “Improper Means”
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
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 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
The New York Times reports the story here.
UPDATE: President Biden has formally nominated Judge Nathan.