In an opinion yesterday, Judge Swain dismissed artist Maya Hayuk’s claim that, after she rejected a request from Starbucks for her to create material for a new ad campaign, Starbucks simply copied the “core” of her art for the campaign anyway. Below is one example of the actual campaign compared to the plaitniff’s art:
More are here.Continue Reading Judge Swain Rejects Artist’s Copyright Claim Against Starbucks Over Ad Campaign
In an opinion yesterday, Judge Swain ruled that “leave and mail” service under the CPLR was inconsistent with due process when used on a nonresident, at least where the case arises outside New York. The petitioner had sought to confirm an arbitration award against an Indian citizen who lives abroad but who apparently rents an apartment in the Time Warner Center in Manhattan. While the respondent was in town, the petitioner left a copy at the Time Warner Center and mailed a second copy. Judge Swain found that the respondent would have to be personally served while here to satisfy due process:
Continue Reading Judge Swain: CPLR “Leave and Mail” Service Insufficient for Nonresidents Where Claims Arise Outside New York
The SDNY Blog is relaunching as a publication of Steptoe & Johnson LLP. We expect to post several times a week on decisions and other developments in the Southern District of New York. You can find us right here at www.sdnyblog.com, or follow us on Twitter or Facebook.
Here’s a quick summary of what’s been happening in the Southern District while we were away:
In an opinion today, Judge Swain ruled Section 13 of the Securities Act, which states that no action may be brought “more than three years after the security was bona fide offered to the public” was not extended by the so-called “FDIC Extender Provision” of the Financial Institutions Reform, Recovery, and Enforcement Act (or
In an opinion yesterday, Judge Swain dismissed a securities class action accusing GM of “channel stuffing” — forcing excess inventory onto dealers to create the appearance of improving revenue — because the inventory at dealerships was fully disclosed:
The fundamental flaw of Lead Plaintiff’s thesis is that is own Amended Complaint reflects public knowledge of
As we reported in May, Judge Swain precluded the trial testimony of the plaintiffs’ loss causation and damages expert in a shareholder class action accusing Pfizer of concealing the cardiovascular risks of two drugs, Celebrex and Bextra. At the time we wrote: “Without a damages expert, it is unclear how the plaintiffs can prove their case at trial, which is currently scheduled for September.” The answer, based on an Order yesterday, is that the plaintiffs will not be able to prove their case. Judge Swain dismissed the case altogether, writing: “To prevail on a securities fraud claim under Section 10(b) of the Securities Exchange Act of 1934, Plaintiffs must prove loss causation and damages. See, e.g., Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 157 (2007); 15 U.S.C. § 78u-4(b)(4). Without a loss causation expert, Plaintiffs cannot prove either.” She rejected the plaintiffs’ attempt to update the expert’s report to fix the issued she identified earlier:
Continue Reading Following Preclusion of Plaintiffs’ Expert, Judge Swain Dismisses Pfizer Shareholder Class Action
In an Order yesterday, Judge Swain precluded the trial testimony of the plaintiffs’ damages expert in a shareholder class action accusing Pfizer of concealing the cardiovascular risks of two drugs, Celebrex and Bextra. Without a damages expert, it is unclear how the plaintiffs can prove their case at trial, which is currently scheduled for September. The expert, Danied Fischel, had identified (a) seven dates during the Class Period on which public disclosures allegedly revealed the cardiovascular risks of the drugs, causing Pfizer’s stock price to drop, and (b) five dates during the Class Period in which positive information about the drugs allegedly caused Pfizer’s stock price to rise. His calculation of damages was based on the stock loss from the seven “corrective disclosures” offset by the rise on the five instances of stock price “inflation.” In a summary judgment ruling (covered in this post), Judge Swain rejected two of the seven corrective disclosures as grounds for damages. Mr. Fischel then issued a supplemental report that, rather than simply dropping those damages, assumed that there would be an offsetting increase on the inflation days. Judge Swain ruled that this methodology did not meet the standards of Rule 702:
Continue Reading Judge Swain Strikes Plaintiffs’ Damages Expert in Pfizer Shareholder Class Action
In a one-page Order Wednesday, Judge Swain stayed a securities class action accusing AIG of concealing its exposure to subprime securities pending a ruling from the Supreme Court in Halliburton Co. v. Erica P. John Fund, Inc., a case challenging the presumption of classwide reliance on the price of securities that are traded in efficient markets. The Halliburton case is scheduled for argument in March and a ruling is expected by July. The lead plaintiff argued that other courts have rejected stays pending the Halliburton ruling, but the defendants responded that, unlike in those other cases, fact discovery was already complete. The defendants also argued that Halliburton is a potential “game changer” for securities litigation:
Continue Reading Judge Swain Stays Securities Class Action Pending Supreme Court Challenge to Fraud-on-The-Market Presumption
In an opinion today, Judge Swain denied Tiffany’s pre-discovery summary judgment motion in a suit it brought against Costco for trademark infringement. She found that there were fact questions as to whether, as Costco contends, the trademark “Tiffany” has become a generic term for certain types of ring settings:
In support of its argument