In an opinion Tuesday, Judge Koeltl dismissed the case brought by the Democratic National Committee and accusing the Wikileaks, the Trump Campaign and others of conspiring with Russia to steal DNC emails in 2016 so as to help President Trump’s election chances (see prior coverage here).

Judge Koeltl dismissed a large portion of the case on First Amendment grounds, finding that the Wikileaks and the Trump Campaign could not be liable for merely disseminating material stolen by the Russians:
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The Cardozo Law Review has published a special issue, inspired by a 2016 essay from Judge Marrero entitled The Costs of Rules, the Rule of Costs, focusing on the way modern practice and procedure have needlessly made litigation so expensive and slow.  The special issue includes (among other things) a follow up article from Judge Marrero entitled Motion to Dismiss: A Dismissal of Rule 12(b)(6) and the Retirement of Twonbly/Iqbal, proposing various reforms, including severely limiting motions to dismiss that are aimed at the factual sufficiency of the allegations (as opposed to dispositive legal theories).  Judge Marrero argues that the wastefulness that inspired the adoption of the Federal Rules in 1938 (which ushered in the simple, notice pleading standard) has reappeared in a different form in today’s practice:
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Yesterday, Judge Koeltl dismissed a putative class action complaint against video game company Take-Two claiming that the company had improperly used facial recognition software.  The complaint alleged that the MyPlayer feature in Take-Two’s “NBA 2K15” and “NBA 2K16” games, which created an image of the game player’s face for a custom character in the game, violated Illinois’ Biometric Information Privacy Act (BIPA).

Applying the U.S. Supreme Court’s recent holding in Spokeo, Inc. v. Robins, Judge Koetl found that that the plaintiffs – players whose facial scans were stored by Take-Two – could not show a sufficiently individualized and concrete injury required for Article III standing, in part because the feature worked exactly as advertised:
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In an opinion yesterday, Judge Koeltl dismissed discrimination and retaliation claims from a chauffeur for the Swedish foreign ministry, finding that the case did not fall within the “commercial” exception to sovereign immunity:

In his capacity as a chauffeur, the plaintiff was responsible for transporting the Swedish Ambassador and the Ambassador’s family, Swedish diplomats and

In a trademark opinion yesterday, Judge Koeltl granted judgment following a bench trial in favor of a Dutch company, Schutte, that makes “bag closures”  — the “small plastic closures that are used to close bags of pastries, bread, and fruit.”  Schutte sought to cancel the trademark protection of the dominant U.S. maker of bag closures, Kwik Lok.  Here are the two products side by side (Schutte on the left, Kwik Lok on the right):

12 Civ. 05541 - Bag Closure Image


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In an opinion Friday, Judge Koeltl dismissed a shareholder class action against the movie studio Lions Gate.  The case concerned how the company disclosed an SEC enforcement action over how Lions Gate handled various transactions designed to ward off efforts by investor Carl Icahn for control.  The SEC action was ultimately settled for $7.5 million, and the plaintiffs alleged that the company should have disclosed the SEC investigation when it received “Wells” notices. Judge Koeltl disagreed:
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In an opinion yesterday, Judge Koeltl dismissed a securities class action accusing various Dynegy officials of making false statements, and omitting material facts, concerning Dynegy’s attempt at a restructuring in 2011. One of the plaintiff’s theories was that Dynegy failed to tell shareholders that, while it was trying to restructure, the company was actually insolvent. Judge Koeltl found that the defendants were not obligated to characterize the situation in that particular way:
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In an opinion today, Judge Koeltl partly dismissed a RICO case accusing a home action company called Concierge of deceiving customers about its “auction results, sales statistics, and track records,” and engaging in “other fraudulent conduct such as using shill bidders, allowing bids from unregistered bidders, and adding a reserve at the last minute.” Judge Koeltl found that Conceirge’s competitor, Grand Estates, lacked standing to bring RICO claims arising from fraud that harmed it only indirectly:
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