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A jury returned a verdict yesterday of approximately $130,000 against Mason Rothschild, the creator of a series of non-fungible tokens, or NFTs, associated with digital images of Hermés’s “Birkin” handbags covered in fake fur (see our prior coverage here).

Rothschild argued that the NFTs were protected artistic expression under the First Amendment.  Judge Rakoff denied both sides summary judgment as to that and other issues, and ultimately instructed the jury that the First Amendment question turned on whether Rothchild was intentionally trying to confuse customers and thereby capitalize on Hermés famous brand, or instead created the project for artistic reasons:…

Continue Reading Jury: “MetaBirkins” NFTs Violate Trademark Rights of Handbag Maker Hermés

Judge McMahon issued a written Order on Friday, answering the parties’ questions ahead of a bench trial in an ERISA case, and, in doing so, offered helpful guidance as to her practices in bench trials.

First, she was clear she does not want opening statements, and perhaps not even closing statements:…

Continue Reading Judge McMahon Ahead of Bench Trial: “Last Thing I Need Is Opening Statements”

In an endorsement today, Judge Schofield declined to postpose a major antitrust trial, despite lead counsel for a bank testing positive for COVID, given that counsel’s firm had several other lawyers available. The endorsement, in full, reads:

It is unfortunate that defense counsel has tested positive for COVID, but the circumstances warrant proceeding with the

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In an opinion yesterday, Judge Cote ruled inadmissible certain deposition designations that a group of defendants wanted to use at a forthcoming antitrust trial because the witnesses were corporate representatives who lacked personal knowledge of the matters to which they testified.

As Judge Cote explained, even though Rule 30(b)(6) authorizes deposition testimony via corporate representatives that are supposed to gather knowledge from others, it does not follow that the testimony meets the standards for admissibility at trial:…
Continue Reading Judge Cote: Corporate Representative Deposition Testimony Must Be Based on Personal Knowledge to Be Admissible at Trial

Based on various orders recently appearing on the dockets, it appears that in-person civil jury trials will begin in May, under a centralized calendaring system. One typical order explains as follows:

The Southern District of New York has reconfigured courtrooms and other spaces in its courthouses to allow civil jury trials to proceed as safely

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In the ongoing saga of New York State’s challenge to the U.S. Census question on citizenship (see our previous coverage here), Judge Furman has rejected the Department of Commerce’s 11th hour attempt to delay the trial in the case currently scheduled to begin on November 6.   Citing “the defendants’ own urgent need for finality,” Judge Furman found that the Department of Commerce failed to show any irreparable harm should the trial proceed as planned, noting that they had already “conced[ed], as a procedural matter, that a trial is appropriate” by electing not file a summary judgment motion, at the Court’s invitation, which could have argued that the case be decided on the administrative record without a trial.

The U.S. Supreme Court’s recent order preventing the deposition of Secretary of Commerce Wilbur Ross loomed large in Judge Furman’s decision:…
Continue Reading Judge Furman: Census Trial Will Proceed Next Week Despite SCOTUS Order on Ross Deposition

Shortly before a nine-day bench trial was scheduled to start this morning, Major League Baseball settled an antitrust suit alleging it is anticompetitive for Major League Baseball broadcast out-of-market games only as part of a allegedly overpriced all-or-nothing packages.  As part of the settlement, MLB will offer reduced price packages for fans to stream out-of-market…

The plaintiffs and Major League Baseball yesterday exchanged briefs in anticipation of a January 18 trial before Judge Scheindlin in a case alleging it is anticompetitive for Major League Baseball to divide the market for broadcasting games into various territories exclusive to the local teams, while allowing the broadcast of out-of-market games only as part of a allegedly overpriced all-or-nothing packages.  (A companion case relating to National Hockey League games was recently settled.)…
Continue Reading Parties File Pretrial Briefs in Antitrust Challenge to Baseball’s “Territorial” Broadcast Structure

Following a bench trial, Judge Cote today issued a 361-page ruling in favor of FHFA (the conservator to Freddie Mac and Fannie Mae) in a case accusing Nomura and RBS of misrepresenting the quality of mortgages underlying various securities.  There had been 16 similar cases before Judge against various banks, all of which settled except this one.  Judge Cote resolved various disputes between the parties as to how damages should be calculated, but did not specify the final judgment amount. She instead directed the FHFA, which had initially sought over $1 billion, to submit a proposed judgment following the formula in her opinion. The opinion begins:…
Continue Reading After Bench Trial, Judge Cote Rules For FHFA in Case Against Nomura, RBS