Judge Oetken

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In an opinion Wednesday in a case under the TCPA, a law that (among other things) bars calls without consent to cell phones via automatic dealings systems, Judge Oeken rejected the defendant’s argument that, by exempting government debt collection calls from the ban, the law is a form of speech discrimination that violates the First Amendment.

Judge Oekten found that, while the law “imposes a content-based restriction on speech” and thereby merits “strict scrutiny,” the law was nonetheless justified under that standard:…
Continue Reading Judge Oetken: Law Banning Robocalls to Cell Phones, Except Where Government is Collecting Debts, Does Not Violate First Amendment

In an opinion yesterday, Judge Oetken denied the defendants’ pre-discovery summary judgment motion in a sex discrimination suit against the law firm Chadbourne & Parke and certain partners. The defendants argued that the named plaintiffs, as firm partners, did not qualify as “employees” of the firm for purposes of the relevant discrimination statutes because of their titles and because of the terms of the partnership agreement.

Judge Oetken concluded, however, that the plaintiffs were entitled to discovery to prove whether the various factors distinguishing employees and owners were present in the case, and focused in particular on whether the firm was really run by a centralized Management Committee, as opposed to the partners generally:…
Continue Reading Judge Oetken:  Law Firm Partners Can Be “Employees” for Purposes of Sex Discrimination Suit, Based on Control by Management Committee

In an opinion today, Judge Oetken clarified a preliminary injunction granted to the maker of a product called “My Cinema Lightbox,” a backlit sign similar to old-fashioned movie theater displays (see image below), against a similar product called “My Marquee Lightbox.”   After winning its motion for a preliminary injunction, the plaintiff  began instructing retailers that they could no longer sell “My Marquee Lightbox.”  Judge Oetken clarified that the Order did not permit the plaintiff to do so:…
Continue Reading Judge Oetken: Preliminary Injunction Winner in Trademark Case Cannot Direct Third Party Retailers to Stop Selling the Accused Product

In an opinion yesterday, Judge Oetken ruled that internet search engines are immune from liability under the Communications Decency Act (CDA) for indexing websites with negative articles about the plaintiff, a lawyer:

Courts have interpreted the CDA to give search engines broad immunity from defamation and other related causes of action resulting from their aggregation

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In an opinion today, Judge Oetken allowed portions of securities class action against the asset management firm Och-Ziff Capital Management to proceed past a motion to dismiss.  Och-Ziff had said in a series of public filings: “We are not currently subject to any pending regulatory, administrative or arbitration proceedings that we expect to have a material impact on our results of operations or financial condition.”  In an amended 10-K following a Wall Street Journal story, however, the company admitted that the DOJ and SEC had been investigating potential FCPA violations and that an “adverse outcome could have a material effect on our business, financial condition or results of operations.”

Judge Oetken concluded that these facts amounted to a “plausible” claim of securities fraud because the company chose to speak on the subject of government investigations, but did so in an incomplete and inaccurate manner:…
Continue Reading Judge Oetken Denies Motion to Dismiss Securities Case Accusing Och-Ziff of Incomplete Statements Regarding Government Investigations

The U.S. Attorney’s Office filed this week an asset forfeiture action against a Tyrannosaurus bataar skull.  The skull, found in the Gobi Desert in Mongolia and dating from the Cretaceous period 65 million years ago, was sold at an auction in New York in 2007 for $276,000.  The complaint alleges that the skull is cultural …

The Second Circuit today affirmed Judge’s Oetken’s decision from August 2013 dismissing defamation claims against the New Yorker stemming from a 2010 profile of Peter Paul Biro, a specialist in art authentication through fingerprint analysis who was featured in the documentary Who the #$&% is Jackson Pollock?.  The Second Circuit found that Rule 8…

In an opinion today, Judge Oetken ruled that Sprint was collaterally estopped from revisiting an arbitration ruling in Kansas concluding that, under Kansas’s Unfair Trade and Consumer Protection Act (“KCPA”), a customer named Vincent Emilio was allowed to bring his claims against Sprint as a class action. In the underlying dispute, Emilio alleges it was unlawful for Sprint to pass along to its customers a fee to cover a New York state tax. Sprint argued that its agreements with customers bar class actions, and that, while the KCPA prohibits these types of class waivers, the KCPA was applicable only to conduct “within this state” (i.e., Kansas), not to issues relating to a New York tax. Judge Oetken ruled, however, that Sprint bargained for the arbitrator to make this decision, and already lost on the point:…
Continue Reading Judge Oetken: Sprint Can’t Re-litigate Arbitral Ruling Allowing Customer Class Action

In an opinion yesterday, Judge Oetken certified a class, for purposes of liability only, in a case alleging that certain JP Morgan mortgage-backed securites offering documents falsely represented (among other things) that the underlying loans complied with certain underwriting standards when, in fact, those standards were abandoned. Judge Oetken rejected JP Morgan’s argument (among many others) that there were too many underwriting standards — 8,196 according to JP Morgan — to address on a class wide basis:…
Continue Reading Judge Oetken Certifies Liability-Only Class in MBS Case Against JP Morgan