Trials

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In an Order last week, Judge McMahon asked the lawyers in a copyright infringement case over the young adult book series Crave (see the operative complaint here) how they planned to conduct a forthcoming jury trial, given the massive volume of evidence—both the book series itself and, separately, the plaintiff’s unpublished manuscripts from which the series was allegedly stolen.

The case was filed by family law attorney and aspiring novelist Lynn Freeman who for years sought to publish her book Blue Moon Rising. After having failed to find a publisher, she came across a book, Crave by Tracy Wolff, with striking similarities. Wolff, it turned out, had the same literary agent as Freeman. Freeman would later sue for copyright infringement. (For more case background, see the New Yorker’s feature on the case).

Judge Stanton denied summary judgment, agreeing with Magistrate Judge Netburn’s report and recommendation that there were fact issues about whether Wolff had access to Freeman’s manuscripts (via their common agent) and whether Wolff “copied parts, large or small.”

The case was assigned to Judge McMahon, who initially suggested that the parties agree to a bench trial because, among other things, it would make it easier to manage the volume of evidence: “I promise I will read everything that either side wants to submit to a trier of fact — all the books, all the notes and all the drafts.”

The parties’ decision to proceed with a jury trial is what gave rise to last week’s Order, and Judge McMahon’s query on how to present the evidence. As Judge McMahon explained, it would not suffice for the manuscripts by Freeman or the Crave series itself to be admitted into evidence merely by way of summaries:Continue Reading In Case Over Allegedly Infringing Teen Romance Book Series, Judge McMahon Asks Counsel: How To Efficiently Try A Case With 10,000-Plus Pages Of Allegedly Infringing Material?

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