Judge Carter Vacates Ruling at Both Sides’ Request To Facilitate Settlement

In a case concerning a loan default, Judge Carter agreed today to vacate a prior ruling finding that the borrower (the National Bank of Liberia) had waived sovereign immunity.  Judge Carter agreed with the parties that doing so would help foster a settlement of the matter:

[T]he parties seek the Court’s assistance in facilitating settlement, by allowing the parties to return to the status quo ante in case settlement fails. There is a strong public policy in this Circuit in favor of the settlement of disputes . . .

Under Fed. R. Civ. P. 54(b), district courts are “empowered to revisit and vacate … any nonfinal order’ at any time before the entry of a judgment . . . where it benefits the parties but does not run counter to any public interest.”  . . .

Here, . . . [t]he fact that both parties jointly moved for vacatur indicates that there is something mutually beneficial in settlement for both sides.

As for the public interest, district court decisions are not treated as binding precedents, but instead serve as persuasive authority. Accordingly, there is less of a concern about the development of decisional law when it comes to district court opinions. The vacated [opinion] will continue to have influence, even if vacated.

Broadway Producers Sue to Bust Broadway Casting “Cartel”

In a complaint filed earlier this week, a group of Broadway producers accused various Broadway casting companies of “band[ing] together to form a casting cartel, enlisting the help of the Teamsters to force Broadway producers to engage in collective negotiations.”  The Broadway League, representing the producers, notes that “the market for casting services is highly concentrated” but that “competition for casting services has been robust, forcing prices down.”  According to the complaint: Continue Reading

Complaint: Bill O’Reilly Breached Settlement Non-Disparagement Clause by Portraying Accusers as Extortionate Liars

In a complaint filed yesterday, a former Fox News producer alleged that Fox News host Bill O’Reilly violated the terms of a confidential settlement agreement when he made public statements indicating that harassment claims against him were mertitless, and merely reflected attempts to extort money from him.  According to the complaint, O’Reilly settled discrimination claims brought by the plaintiff in 2002.  That agreement included non-disparagement and non-defamation clauses, which plaintiff argues were violated when O’Reilly recently described the claims as “politically and financially motivated” and the complainants as “smear merchants.”

The complaint includes claims for breach of contract, defamation, and breach of the covenant of good faith and fair dealing against both O’Reilly and Fox News. The complaint also includes a claim for tortious interference against O’Reilly.  The plaintiff seeks damages for the breach, as well as reputational, economic, emotional, and punitive damages.

The case is currently pending before Judge Batts.

Complaint: Call of Duty Video Game Infringes Trademarks by Pervasively Featuring Humvees

In a complaint filed yesterday, the makers of Humvee branded vehicles (AM General) accused the makers of the Call of Duty video games of trademark infringement (and of related violations) because the games prominently feature Humvees:

Defendants have used and continue to use AM General’s trademarks and trade dress in advertising and promotion of their Call of Duty® video game franchise . . .  Defendants’ video games have been successful but only at the expense of AM General and consumers who are deceived into believing that AM General licenses the games or is somehow connected with or involved in the creation of the games.

Defendants have reaped billions of dollars in revenues from their wrongful acts and, in the process, have irreparably harmed AM General by causing significant confusion, expressly misleading the consuming public, and diluting the goodwill and reputation of AM General’s famous marks.

The case is before Judge Daniels.

For Appeal Argument Tomorrow, Ezekiel Elliott and NFL Dispute Whether Missing Games is “Irreparable Harm”

At 2:00 p.m. tomorrow, the Second Circuit will hear arguments on a motion from the NFL Players Association (NFLPA) to stay pending appeal Cowboys running back Ezekiel Elliott’s six-game suspension arising from a domestic violence incident.  Judge Failla refused to preliminarily enjoin the suspension, but the Second Circuit granted an administrative stay so it could consider whether to issue a stay pending appeal.

The NFLPA’s brief argues that the case “presents the starkest possible case for irreparable harm”: Continue Reading

Judge Failla Refuses to Preliminarily Enjoin Ezekiel Elliott Suspension

In an opinion this evening, Judge Failla denied a motion from the NFL Players Association (“NFLPLA”), on behalf of Cowboys running back Ezekiel Elliott, to preliminarily enjoin his six-game suspension arising from a domestic violence incident.

Judge Failla ruled that the NFLPA was unlikely to ultimately prove that the arbitral proceedings leading to the suspension were so unfair as to void the outcome.  She further found the NFLPA could not show sufficient “irreparable harm” to warrant injunctive relief, because the harm to Elliott was speculative: Continue Reading

In Case Over Spoiled Strawberries, Judge Forrest Offers to Try Case on the Papers

In an opinion yesterday, Judge Forrest denied “dueling” motions for summary judgment in case over the shipment of allegedly spoiled strawberries, yet she at the same time observed that there were “serious questions as to whether it is worth incurring the expense of a trial,” given that “the amount in controversy is less than $100,000.”  Accordingly, she offered the parties the unusual option of allowing her to weigh the evidence on the papers and decide the case:

This is not a big case. Indeed, it is a case where only a modest loss is at issue. . . . . To finally resolve this case the parties have two choices: (1) consent to a trial on the papers that would allow the Court to weigh the evidence, or (2) a bench trial.

Judge Crotty Grants TRO Halting Suspension of Cowboys Running Back Ezekiel Elliott

In a short Order this evening, Judge Crotty (sitting in Part I for Judge Failla), granted the NFL Players Association a TRO to place on hold the six-game suspension of Cowboys running back Ezekiel Elliott.

The ruling explains that, absent a TRO, “Mr. Elliott would suffer irreparable harm because he stands to miss more than one-third of the NFL’s regular season.”

Judge Crotty also found “significant issues implicating the fundamental fairness of the arbitration proceeding” that resulted in the suspension:

Defendant [the NFL Players Association] was denied the opportunity to confront the accusing witness and it had no opportunity to cross examine this witness on the alleged domestic violence.  This is significant because there were substantial questions concerning the credibility of the accusing witness. Defendant was also denied the opportunity to question NFL Commissioner Goodell regarding whether he was aware that the accuser of domestic violence was not credible. In effect, Defendant was deprived of opportunities to explore pertinent and material evidence, which raises sufficiently serious questions.

Second Circuit Throws Out Case Alleging Government Fabricated Evidence for Hedge Fund Raid, Leading to Fund’s Collapse

In an opinion today, the Second Circuit reversed a ruling by Judge Pauley (see our prior coverage here) that had allowed hedge fund manager David Ganek to proceed with claims against the U.S. Attorney and various other government officials over a raid that led to the collapse of his hedge fund, Level Global.  Mr. Ganek had alleged, in essence, that the affidavit supporting the raid was based on false testimony suggesting he knowingly traded on inside information.

The Second Circuit reversed, primarily on the ground that, even absent the allegedly false  information, the raid would have been supported by probable cause: Continue Reading