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 a 79-page decision today, Judge Marrero largely denied a series of motions to dismiss a class action brought by customers of MF Global against the company and others formerly affiliated with the company. Echoing an earlier 105-page ruling denying a motion to dismiss a securities class action brought by MF Global shareholders, Judge Marrero lamented that the parties could not reduce or eliminate the extensive motion practice:
Continue Reading Judge Marrero Largely Denies Motion to Dismiss Customer Class Action Against MF Global

In the civil litigation against the Madoff feeder fund Fairfield Greenwich, its auditors and others, Judge Maas on Thursday (Thanksgiving Day), denied the defendants’ letter motion to compel depositions of two SEC employees for the purpose of showing that, since Madoff successfully deceived the SEC, he could have also deceived the defendants.  Judge Maas found the proposed depositions to be of “marginal relevance”:
Continue Reading Judge Maas Rejects Request to Depose SEC Officials to Prove Madoff’s Elusiveness

In a 105-page ruling today, Judge Marrero denied the defendants’ motion to dismiss a securities fraud class action arising from the collapse of MF Global.  The ruling forcefully rejected as “extreme” the notion that none of the 23 defendants could be legally responsible for the sudden loss of billions of dollars:
Continue Reading Judge Marrero Emphatically Rejects Group of Motions Disclaiming Liability for MF Global Collapse

In the civil litigation against the Madoff feeder fund Fairfield Greenwich and other related parties, the SEC and the defendants recently exchanged briefs on the standard for determining whether the SEC must comply with a nonparty subpoena.  The defendants want to depose current and former SEC employees to elicit testimony showing that, since Madoff successfully deceived the SEC, he could have also deceived the defendants. The SEC’s brief argues the Court cannot compel compliance unless the SEC’s decision to not comply was “arbitrary and capricious” under the Administrative Procedures Act:
Continue Reading Madoff Case Raises Standard of Review When SEC or Other Agencies Balk at Nonparty Subpoenas

In an opinion today, Judge Furman largely denied Wells Fargo’s motion to dismiss a government lawsuit relating to its underwriting of government-insured mortgage loans. Judge Furman joined Judges Rakoff and Kaplan in holding that the Financial Institutional Reform, Recovery, and Enforcement Act (“FIRREA”), which allows the government to pursue civil charges against those who commit crimes like mail or wire fraud “affecting a federally insured financial institution,” applies even where the conduct at issue is a bank “affecting” itself.  (See our prior posts on the issue here and here, and see here for a longer version of these posts at Columbia University’s CLS Blue Sky Blog). One of the predicate acts the government alleged against Wells Fargo involved alleged violations of paragraph 4 of 18 U.S.C. § 1005, which criminalizes receiving funds from a bank with the intent to defraud the government. Wells Fargo argued that paragraph 4 is limited to bank insiders, and a 2011 decision from Judge Marrero, United States v. Rubin/Chambers, supports that interpretation.  Judge Furman disagreed with the Rubin decision:
Continue Reading Judge Furman Joins Consensus Endorsing “Self-Affecting” Theory of FIRREA; Splits with Judge Marrero on Scope of Predicate Bank Fraud Law