In an opinion yesterday, Judge Swain refused to enjoin Dish Network’s technology allowing viewers to record all prime time network shows (called “Prime Time Anytime” or “PTAT”) and then skip commercials with the touch of a button, instead of fast‑forwarding (called “Auto Hop”). Judge Swain ruled that the combination of these features did not constitute direct copyright infringement:
Continue Reading Judge Swain Refuses to Enjoin Dish Network Features Allowing Recording of All Prime Time Shows and Commercial Skipping

Judge Swain yesterday granted a motion for judgment on the pleadings in favor of PricewaterhouseCoopers and certain other defendants with respect to certain Securities Act claims in a class action relating to AIG’s subprime exposure.   The complaint alleged that certain accounting statements in offering documents were false, but expressly disclaimed that they were fraudulently made – presumably to avoid having to plead fraud with particularity.  Under the Securities Act, false statements in offering materials can be actionable even without fraudulent intent. After the complaint was filed, the Second Circuit decided  Fait v. Regions Financial, which held that plaintiffs challenging statements of opinion in offering materials must plead and prove that the speaker subjectively disbelieved the claims to recover under the Securities Act.  Judge Swain’s ruling was largely based on Fait.  She concluded that the accounting statements were opinions within the ambit of Fait and also concluded that disputes concerning accounting standards could be decided on the pleadings:
Continue Reading Judge Swain Dismisses Securities Act Claims Against PwC, Citing Recent “Subjective Falsity” Standard From Second Circuit

In a ruling yesterday, Judge Swain denied Dish Networks’ motion for an anti-suit injunction against the major broadcast television networks, holding that the majority of the claims at issue should be heard in the California district court where the TV networks had filed suit against Dish. The suits concern Dish Network’s new “auto hop” function, which allows viewers to record the prime time programming of CBS, Fox, ABC and NBC, then skip commercials with the push of a single button, which we have covered before on the SDNY Blog. After Dish began offering the new auto hop feature to customers, press reports suggested that the networks were planning to sue Dish for breach of copyrights and licensing agreements. Dish filed suit in the SDNY, seeking a declaratory judgment that auto hop did not infringe any of the networks’ copyrights or breach any licensing agreements. Hours after Dish’s suit, Fox, CBS and NBC filed suits in the Central District of California. Dish then moved for an anti-suit injunction in the SDNY staying prosecution of the California litigation, which Judge Swain granted on a temporary basis.
Continue Reading Judge Swain Sends Dispute Over Dish Networks’ Commercial-Skipping DVR to California