In an opinion Thursday, Judge Engelmayer dismissed claims by plaintiffs who alleged that they were defrauded into buying Diet Pepsi because they thought that the word “Diet” implied it would help with weight loss. He found that, in context, the plaintiffs’ alleged inference was not a reasonable one, since the term “Diet” refers to the
Judge Engelmayer
Judge Engelmayer Denies Class Certification for Medical Record Copying Claims, But “Stands Ready” to Approve Narrower Class
Judge Engelmayer denied yesterday a motion for class certification against a medical records copying firm accused of charging a price beyond the statutory limit. HealthPort Technologies, LLC retrieved and photocopied patient records at the rate of 75 cents per page (the statutory limit set by New York Public Health Law § 18 for recovering “costs incurred”) but the its actual “costs incurred” allegedly fell far below that.
Judge Engelmeyer declined to certify a state-wide class of patients at the over 500 medical facilities where HealthPort operated, as the differences in determining the “costs incurred” for each location meant that common questions did not predominate as required by Rule 23(b)(3):
Continue Reading Judge Engelmayer Denies Class Certification for Medical Record Copying Claims, But “Stands Ready” to Approve Narrower Class
Judge Engelmayer: Lawyers Using Confidential Witnesses in Complaints Should Confirm Their Testimony and Warn of Risks of Being Outed
In an opinion today allowing a securities class action to be dismissed without prejudice, Judge Engelmayer expressed concern about the lawyers using confidential witnesses in complaint without confirming the accuracy of the statements attributed to them or warning the witnesses that their identity might have to be revealed. On the first point, the complaint’s 11 confidential witnesses were not given the chance to confirm the statements attributed to them and at least four believed they were misquoted or misleadingly quoted. This risk of error, Judge Engelmayer concluded, counsels in favor of better diligence before filing a complaint. On the second point, Judge Engelmayer concluded that it was a matter of “decency” to alert confidential witnesses that their identities might eventually be revealed:
Continue Reading Judge Engelmayer: Lawyers Using Confidential Witnesses in Complaints Should Confirm Their Testimony and Warn of Risks of Being Outed
Judge Engelmayer Rejects Class Certification Premised on Extra Shares Being “Secretly” Available and Depressing Price
In an opinion today in a securities fraud case, Judge Engelmayer denied a class certification motion that was based on a somewhat novel theory: the plaintiffs allege that insiders of a company called SmartHeat publicly touted a “lockup” restricting their ability to sell shares, but then secretly “unlocked” those shares, thereby causing extra shares to flood the market and depress prices. He ruled that there was insufficient evidence of the plaintiffs’ theorized cause and effect:
Continue Reading Judge Engelmayer Rejects Class Certification Premised on Extra Shares Being “Secretly” Available and Depressing Price
Judge Engelmayer Throws Out Patent Infringement Suit Over Computerized Diet Planner
In an opinion issued today, Judge Engelmayer granted Bravo Media’s motion for summary judgment against DietGoal innovations, the holder of a patent for a “computerized method and system for diet-related behavior analysis, training, and planning.” As Judge Engelmayer explained:
[T]he claims of the ’516 Patent, viewed as a whole, recite nothing more than “the
…
Jury Awards Beastie Boys $1.7 Million in Suit Against Monster Energy Over Unauthorized Use of Songs in Web Video
Judge Engelmayer Rules that Law Review Article Discussing Dismissed Allegations of Discrimination Is Not Defamation
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
In Beastie Boys Case, Judge Engelmayer Limits Lanham Act Damages to Cases of Willful Violations or Actual Confusion; Excludes Expert Testimony Failing “Laugh Test”
Judge Engelmayer issued an opinion yesterday resolving several motions in limine relating to an upcoming trial concerning the Beastie Boys’ suit accusing the makers of Monster Energy drinks of using Beastie Boys songs in promotional videos without authorization. Judge Engelmayer largely denied the Beastie Boys’ motion to exclude the testimony of Erich Joachimsthaler, a branding expert, who proposed to testify that the videos would not leave viewers with a lasting association between the Beastie Boys and Monster. He found that the testimony was “potentially relevant to the Beastie Boys’ actual damages” because “damages to the Beastie Boys would arguably be little, if any, if viewers would neither remember the Video nor retain from it an association between the Beastie Boys and Monster.” However, Judge Engelmayer was careful to limit the testimony to issues of damages, not liability:
Continue Reading In Beastie Boys Case, Judge Engelmayer Limits Lanham Act Damages to Cases of Willful Violations or Actual Confusion; Excludes Expert Testimony Failing “Laugh Test”
In Antitrust Challenge to Blanket Music License Program, Judge Engelmayer Allows Narrowed Claims to Proceed
In an opinion today, Judge Engelmayer granted in part and denied in part the summary judgment motion of SESAC, a company that, similar to BMI and ASCAP, offers the blanket music licenses that allow TV stations to broadcast programs that contain copyrighted music. The TV station plaintiffs allege that the SESAC charges exorbitant prices for “all or nothing” licenses. Judge Engelmayer rejected the plaintiffs’ claims that there was an unlawful conspiracy among the over 20,000 composers and musicians (referred to as “affiliates”) who licensed their music through SESAC, but held that the plaintiffs’ claims could proceed regarding the smaller subset of affiliates who, in exchange for large upfront payments, signed “supplemental” agreements that would discourage them from directly licensing their works. These affiliates were generally the “key” composers whose music was too ubiquitous for TV stations to avoid. As Judge Engelmayer explained:
Continue Reading In Antitrust Challenge to Blanket Music License Program, Judge Engelmayer Allows Narrowed Claims to Proceed
Judge Engelmayer Rejects Challenge to New York City Discounting Tolls For Certain Residents
The New York City transit system offers residents of Staten Island, the Rockaways, and Broad Channel discounts on the tolls they pay to cross their local bridges, and, in an opinion yesterday, Judge Engelmayer rejected various constitutional challenges to the policy from commuters who don’t get the discounts. For example, he concluded that the policy did not discriminate against interstate commerce:
Continue Reading Judge Engelmayer Rejects Challenge to New York City Discounting Tolls For Certain Residents