In an opinion yesterday, Judge Pauley denied summary judgment in a case alleging that a certain rodent repeller devices are ineffective, contrary to the defendant’s allegedly false representations.

He noted that the parties had filed over 40,000 words in briefing the issues, but that three photos (including the one below) were sufficient to decide the

In an opinion today, the Second Circuit reversed a ruling by Judge Pauley (see our prior coverage here) that had allowed hedge fund manager David Ganek to proceed with claims against the U.S. Attorney and various other government officials over a raid that led to the collapse of his hedge fund, Level Global.  Mr. Ganek had alleged, in essence, that the affidavit supporting the raid was based on false testimony suggesting he knowingly traded on inside information.

The Second Circuit reversed, primarily on the ground that, even absent the allegedly false  information, the raid would have been supported by probable cause:
Continue Reading Second Circuit Throws Out Case Alleging Government Fabricated Evidence for Hedge Fund Raid, Leading to Fund’s Collapse

In an opinion last week, Judge Pauley refused to allow the parties in an FLSA case to redact portions of a Settlement Agreement, and further refused to approve the settlement itself.

Judge Pauley found that the presumption of public access to judicial documents was fundamentally at odds with the parties’ attempt to settle under a “shroud of secrecy”:
Continue Reading Judge Pauley: Parties Cannot Settle FLSA Case Under “Shroud of Secrecy”

In an opinion last week, Judge Pauley granted Drake and his co-defendants summary judgment in a case accusing them of copyright infringement.  The case arose from the fact that Drake’s song “Pound Cake” opens with about 35 seconds of spoken words that are similar to a spoken word recording called “Jimmy Smith Rap,” by the jazz artist Jimmy Smith.

Judge Pauley found that Drake’s sampling was fair use because (among other reasons) it was “transformative” of the Smith track (referred to in the opinion as “JSR”):
Continue Reading Judge Pauley: Drake’s Sampling of Spoken Word Excerpt from Jazz Album is Fair Use

In an opinion last week, Judge Pauley dismissed a second amended False Claims complaint brought by a former Moody’s managing director who claimed that Moody’s false ratings caused various government overpayments  (our coverage of the dismissal of the original complaint is here).

The opinion notes that, as a consequence of the dismissal, the plaintiff was not eligible to share in an $864 million settlement between Moody’s and the government for violations of FIRREA and parallel state laws, even though the plaintiff was apparently helpful to the government:
Continue Reading Judge Pauley: Moody’s Whistleblower Whose False Claim Act Case Was Dismissed Cannot Share in Related Government FIRREA Settlement

Judge Pauley yesterday denied a request for the government to reimburse over $17,000 in travel expenses incurred at a deposition in London in the ongoing SEC case against Caledonian Bank (previous coverage of the case here).  Defendant Verdmont Capital had contended that two of its principals were not subject to deposition by the SEC, and the SEC agreed to compromise by “picking up the tab for travel” to depose the two principals at a neutral site in London.  The SEC advised Verdmont that it would only reimburse for expenses in line with the federal government’s travel reimbursement policy.  Verdmont, however, took the SEC promise to pay to heart, submitting receipts for first class airfare, $700 per night hotels, a $1,000 hotel bar tab, tours of St. Paul’s Cathedral, and a multi-day trip to Madrid after the depositions were done.
Continue Reading Judge Pauley Rejects Request to Force SEC to Pay Witness’s $17,000 Travel Bill

In an opinion today, Judge Pauley largely denied a motion to dismiss a civil case brought by David Ganek, the former head of hedge fund Level Global.  Mr. Ganek accuses U.S. Attorney Preet Bharara and various other government officials of using a fabricated affidavit – which was later contradicted by trial testimony – as the basis for a search warrant and office raid that ultimately caused the collapse of Level Global.   According to Mr. Ganek, the government tipped off the Wall Street Journal about the raid, so as to inflict the maximum harm, and without any legitimate law enforcement purpose.  Judge Pauley described the allegations as “grave” and allowed most of the claims, based on the Fourth and Fifth Amendments, to proceed.

He ruled that the claims could even proceed against supervisors in the U.S. attorney’s office because the detailed facts alleged made it at least plausible that they were involved:
Continue Reading Judge Pauley Denies Motion to Dismiss Civil Suit Accusing Federal Prosecutors of Fabricating Evidence that Led to Collapse of Hedge Fund