In a motion filed yesterday, Disney, Fox, Paramount, Warner Brothers and Viacom filed a motion for partial summary judgment asking Judge Baer to rule that LimeWire intentionally fostered infringement of the studios’ copyrights in movies and TV shows by distributing the LimeWire peer-to peer file sharing software. In May of 2010, in Arista – an analogous and hotly contested suit brought by thirteen record companies – Judge Wood found LimeWire liable on summary judgement, finding that the evidence of intent to foster infringement of musical recordings was “overwhelming.” Ultimately LimeWire settled that case – for $105 million – during a trial to determine damages. The studios’ motion relies heavily on that decision, arguing that the legal and factual issues are identical, and collateral estoppel therefore compels the identical result.
Continue Reading Studios File “Me Too” Summary Judgment Motion in Action Against LimeWire

In the latest in a long line of SDNY opinions on copyright infringement cases brought against anonymous users of the BitTorrent file-sharing service, Judge Baer dismissed without prejudice the suits against all but the first identified John Doe defendant in the case on the grounds that they were improperly joined. Judge Baer lamented that the same “swarm” technology that has allowed for joinder of these defendants in many cases has created a plague on the federal courts: “It is this swarm that Plaintiffs have relied on in grouping Doe defendants together in a common suit. Ironically, there are swarms on both sides, for copyright locusts have descended on the federal courts, exacting low-cost settlements from embarrassed John Does and then moving on to the next District.” Judge Baer lists 30 separate BitTorrent actions against anonymous defendants that have been brought in federal court, which he describes as a “but a sample,” turning the federal courts into “cogs in a plaintiff’s copyright-enforcement business model.”
Continue Reading Judge Baer Severs John Doe Defendants in Latest BitTorrent Copyright Case

Yesterday, the SEC asked Judge Barbara Jones to reinstate certain securities fraud claims against Goldman Sachs trader Fabrice Tourre relating to the sale of CDO notes to IKB, a German financing bank. Judge Jones dismissed these claims last June because the transaction was not a “domestic securities transaction” under the Supreme Court’s 2010 decision in Morrison v. National Australia Bank Limited, 130 S. Ct. 2869 (2010). It fell outside Section 10(b) of the Exchange Act. The SEC asserts in its motion that a recent Second Circuit case adopted a “broader” definition of “domestic securities transaction” than Judge Jones and that under that broader definition, the sale is a “domestic securities transaction” subject to U.S. law. According to the SEC, in Absolute Activist Master Fund Limited v. Ficeto, 672 F.3d 143 (2d Cir. 2012), the Second Circuit held that a transfer of title to securities within the United States is sufficient to satisfy the “domestic securities transaction” test. The SEC claims that the closing of the CDO transaction took place in New York and that title to the notes also transferred in New York. Based on the alleged transfer of title within the U.S., the SEC contends that it should be allowed to pursue its fraud claims against Tourre arising from the sale of the notes.
Continue Reading SEC Moves to Reinstate Fraud Claims Against Goldman Trader Fabrice Tourre

On Monday, Judge Scheindlin dismissed securities fraud claims brought by a putative class of investors in Optimal, an investment fund that invested 100% of its assets with Bernie Madoff and his firm. On March 6, Judge Scheindlin had issued an Order to Show Cause why the plaintiffs’ securities law claims should not be dismissed in light of the Second Circuit’s decision in <emAbsolute Activist Value Master Fund, Ltd. v. Ficeto, which clarified the scope of extraterritorial application of the Exchange Act after the Supreme Court’s decision in Morrison v. National Australia Bank. In briefing, the plaintiffs argued not that their investments in Optimal took place in the U.S., but instead that their purchases of shares in the fund were “‘in connection with the purchase or sale of a security listed on an American stock exchange’ –namely, Madoff’s purported trades on the New York Stock Exchange.” The plaintiffs sought to rely on the “broad interpretation generally given to the phrase ‘in connection with’” by courts.
Continue Reading Judge Scheindlin Throws Out Madoff-Related Securities Fraud Case Under Morrison