LexisNexis® Legal Newsroom
Mealey's Litigation Procedure - New York Appeals Panel: Ex-Franchisees Entitled To Unemployment Benefits

ALBANY, N.Y. - A New York appellate panel on Oct. 27 upheld a state Unemployment Insurance Appeal Board ruling that a claimant is entitled to unemployment insurance benefits because the franchisor of his former cleaning service's actions and franchise agreement created an employer-employee relationship (In the Matter of the Claim of Bertrand Baez, No. 520746, N.Y. Sup., App. Div., 3rd Dept.; 2016 N.Y. App. Div. LEXIS 6946).

Mealey's Toxic Tort/Environmental - Judge Won't Reconsider Third-Party Parts Liability Ruling

ALBANY, N.Y. - Out-of-state rulings on a manufacturers' liability for third-party parts do not require reconsideration of a ruling and a recent ruling by New York's top court moots any concern of prejudice, a federal judge held Oct. 27 (Pearl Osterhout, et al. v. Crane Co.; FMC Corp., et al., No. 14-208, N.D. N.Y.; 2016 U.S. Dist. LEXIS 148819).

Mealey's Toxic Tort/Environmental - 2nd Circuit Denies Rehearing In $18.5B Fraud Case Related To Lago Agrio Contamination

NEW YORK - The court clerk for the Second Circuit U.S. Court of Appeals on Oct. 27 issued an order denying a petition for rehearing sought by a group of Ecuadorian residents and their attorney in the fraud case surrounding the $18.5 billion judgment the residents had won against Chevron Corp., which was reversed, pertaining to alleged injuries related to the company's involvement with an oil consortium (Chevron Corporation v. Steven Donziger, No. 14-826 [consolidated with] Chevron Corporation v. Hugo Gerardo Camacho Naranjo, No. 14-832, 2nd Cir.).

Mealey's Antitrust/Unfair Competition - Antitrust Claim Dismissed, Lanham Act Claim Survives In New York Lawsuit

NEW YORK - A New York federal judge on Oct. 27 agreed with a plaintiff that counterclaims of antitrust violations and commercial disparagement by a trademark infringement defendant are ripe for dismissal (Dentsply International Inc. v. Dental Brands for Less d/b/a Dental Wholesale Direct, No. 15-8775, S.D. N.Y.; 2016 U.S. Dist. LEXIS 149139).

Mealey's Insurance - Reinsured Says Loss Expense Should Not Have Been Capped By Lower Court

NEW YORK - An insurer argues in an Oct. 26 brief in the Second Circuit U.S. Court of Appeals that a lower court erred when it did not allow the insurer to present extrinsic evidence that would allegedly show that industry custom mandates that a reinsurer's obligations to pay its reinsured's underlying expenses should not be capped (Utica Mutual Insurance Company v. Clearwater Insurance Company, No. 16-cv-2824, 2nd Cir.).

Mealey's IP/Tech - Antitrust Claim Dismissed, Lanham Act Claim Survives In New York Lawsuit

NEW YORK - A New York federal judge on Oct. 27 agreed with a plaintiff that counterclaims of antitrust violations and commercial disparagement by a trademark infringement defendant are ripe for dismissal (Dentsply International Inc. v. Dental Brands for Less d/b/a Dental Wholesale Direct, No. 15-8775, S.D. N.Y.; 2016 U.S. Dist. LEXIS 149139).

Mealey's Litigation Procedure - Reinsurer Says Its Request For Reconsideration Of Discovery Orders Is Timely

SYRACUSE, N.Y. - A reinsurer asked a federal court in New York on Oct. 21 for permission to file a reply to its reinsured's contention that the reinsurer's objections to a pair of discovery orders is untimely (Utica Mutual Insurance Company v. Century Indemnity Company, No. 13-cv-00995, N.D. N.Y.).

Mealey's Insurance - Reinsurer Says Its Request For Reconsideration Of Discovery Orders Is Timely

SYRACUSE, N.Y. - A reinsurer asked a federal court in New York on Oct. 21 for permission to file a reply to its reinsured's contention that the reinsurer's objections to a pair of discovery orders is untimely (Utica Mutual Insurance Company v. Century Indemnity Company, No. 13-cv-00995, N.D. N.Y.).

Mealey's IP/Tech - 2nd Circuit Partly Vacates DMCA Safe Harbor Rulings In Favor Of MP3Tunes

NEW YORK - A New York federal judge applied "too narrow" a definition of "repeat infringer" in finding that the former music downloading site MP3Tunes LLC qualified for safe harbor immunity under the Digital Millennium Copyright Act (DMCA), the Second Circuit U.S. Court of Appeals ruled Oct. 25 (Capitol Records LLC, et al. v. MP3Tunes LLC, et al., Nos. 14-4369, -4509, 2nd Cir.; 2016 U.S. App. LEXIS 19236).

Mealey's Litigation Procedure - 2nd Circuit: Negotiations Of Individual Settlement Moot Class Claims

NEW YORK - A pro se plaintiff's negotiation of a settlement for himself moots his class claims, a Second Circuit U.S. Court of Appeals panel ruled Oct. 20 (Todd C. Bank, et al. v. Alliance Health Networks, LLC, FKA Alliance Health Networks, Inc., et al., No. 15-4037, 2nd Cir.; 2016 U.S. App. LEXIS 18849).

Mealey's Litigation Procedure - Magistrate Judge Precludes Expert Opinions On Damages In Medical Malpractice Suit

NEW YORK - A neurologist, a psychologist, an economist and a school principal may not testify as to damages from the loss of the role of an orthodox, Hasidic mother, a New York federal magistrate judge ruled Oct. 20, but he allowed the psychologist and economist to testify about the loss of household services that was experienced as a result of the mother's death (Arnold Hersko, individually and as administrator of the estates of Rochel Hersko and Arnold Hersko v. United States of America, et al., No. 13-CV-3255, S.D. N.Y.; 2016 U.S. Dist. LEXIS 145552).

Mealey's IP/Tech - Mattress Firm's Lanham Claim Against Review Site Partly Dismissed

NEW YORK - Many of the statements on a mattress review website about which a mattress manufacturer complains constitute opinions that are not actionable under the Lanham Act, a New York federal judge ruled Oct. 20, granting in part the site operator's motion to dismiss (Casper Sleep Inc. v. Derek Hales, et al., No. 1:16-cv-03223, S.D. N.Y.).

Mealey's Bankruptcy - Insurers Dispute Debtor's Attempt To Vacate Policy Exhaustion Finding

NEW YORK - A bid by Chapter 11 debtor Rapid-American Corp. to vacate a finding that it has not paid a sufficient amount for asbestos claims to reach the level of excess coverage provided under three insurance policies should be rejected because the debtor is improperly trying to reargue the issue with a revised legal strategy, insurers assert in separate Oct. 18 response briefs in New York federal bankruptcy court (Rapid-American Corporation, et al. v. Travelers Casualty and Surety Company, et al., No. 15-01095, S.D. N.Y. Bkcy.).

Mealey's PI/Product Liability - General Motors Bellwether Plaintiff Dismisses Personal Injury Claims

NEW YORK - The man set to be the first in the second set of bellwether trials against General Motors in the ignition switch multidistrict litigation dismissed his personal injury claims against the automaker with prejudice on Oct. 20 (In Re: General Motors LLC Ignition Switch Litigation, No. 1:14-md-0254, James Boyd v. General Motors LLC, No. 1:14-cv-08385, S.D. N.Y.).

Mealey's Labor & Employment - New York Federal Judge Orders Disclosure Of Fees In Xerox Pension Benefit Dispute

ROCHESTER, N.Y. - A New York federal judge on Oct. 19 ordered Xerox to disclose the amount of fees it was charged and paid to its law firms in an action over Xerox's violation of the notice requirements of the Employee Retirement Income Security Act when it applied an offset to pension benefits of rehired workers (Paul J. Frommert, et al. v. Sally L. Conkright, et al., No. 00-CV-6311, W.D. N.Y.; 2016 U.S. Dist. LEXIS 144746).

Mealey's IP/Tech - New York Magistrate Judge Rejects Alter-Ego Theory Of Liability In Copyright Case

NEW YORK - A plaintiff on Oct. 19 won the right to amend his complaint to add several individual and corporate defendants in a New York copyright infringement dispute (Joseph Separzadeh v. Iconix Brand Group Inc., et al., No. 15-8643, S.D. N.Y.; 2016 U.S. Dist. LEXIS 144772).

Mealey's Insurance - Judge Throws Out Superstorm Sandy Coverage Dispute For Insured's Failure To Prosecute

BROOKLYN, N.Y. - A New York federal judge on Oct. 14 adopted a magistrate's report that recommended dismissing a Superstorm Sandy coverage dispute due to the insured's failure to prosecute (David Valero v. The National Flood Insurance Program, No. 14-3362, E.D. N.Y.; 2016 U.S. Dist. LEXIS 143007).

Mealey's Litigation Procedure - New York Federal Judge Allows 3 Counts In Action Against Deutsche Bank

NEW YORK - A New York federal judge on Oct. 13 allowed three counts in a putative class action complaint alleging that Deutsche Bank entities mismanaged their 401(k) plan in violation of the Employee Retirement Income Security Act to proceed, saying that the plaintiffs' breach of fiduciary duty claim plausibly alleges that the plan fiduciaries breached their duties to act in the best interest of the plan and with due care by failing to remove excessively costly proprietary mutual funds (Ramon Moreno, et al. v. Deutsche Bank Americas Holding Corp., et al., No. 1:15cv9936, S.D. N.Y.; 2016 U.S. Dist. LEXIS 142601).

Mealey's Litigation Procedure - Cocoa Trading House Appeals Order Vacating $2.6M Award To 2nd Circuit

NEW YORK - A New Jersey cocoa trading house on Oct. 14 filed a notice of appeal with the Second Circuit U.S. Court of Appeals, seeking to appeal an order granting a petition to vacate a $2,606,626 arbitral award issued against a cooperative made up of Peruvian farmers (Cooperativa Agraria Industrial Naranjillo Ltda. V. Transmar Commodity Group Ltd., No. 16-3356, S.D. N.Y.; 2016 U.S. Dist. LEXIS 129969).

Mealey's Labor & Employment - New York Federal Judge Allows 3 Counts In Action Against Deutsche Bank

NEW YORK - A New York federal judge on Oct. 13 allowed three counts in a putative class action complaint alleging that Deutsche Bank entities mismanaged their 401(k) plan in violation of the Employee Retirement Income Security Act to proceed, saying that the plaintiffs' breach of fiduciary duty claim plausibly alleges that the plan fiduciaries breached their duties to act in the best interest of the plan and with due care by failing to remove excessively costly proprietary mutual funds (Ramon Moreno, et al. v. Deutsche Bank Americas Holding Corp., et al., No. 1:15cv9936, S.D. N.Y.; 2016 U.S. Dist. LEXIS 142601).

Mealey's Toxic Tort/Environmental - New York Court: Boilermaker Can't Show Take-Home Asbestos Claims Fail

NEW YORK - A boilermaker pointed to alleged holes in a take-home asbestos case but never introduced evidence demonstrating why the plaintiff could not have suffered exposure when his draftsman engineer father worked around its products, a New York appeals court held Oct. 13 (Mark Ricci v. A.O. Smith Water Products Co., et al., No. 190224/14, N.Y. Sup., App. Div., 1st Dept.; 2016 N.Y. App. Div. LEXIS 6641).

Mealey's Litigation Procedure - U.S. Government: 2nd Circuit Erred In Denying Access To Irish-Based Emails

NEW YORK - In an Oct. 13 motion for rehearing, the U.S. government tells the Second Circuit U.S. Court of Appeals that a panel ruling improperly deemed unenforceable a warrant seeking emails stored in a Microsoft Inc. server in Ireland because the provisions of the Stored Communications Act (SCA), under which the warrant was issued, cannot apply extraterritorially (In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp.[Microsoft v. United States], No. 14-2985, 2nd Cir.).

Mealey's Insurance - 2nd Circuit Refuses To Set Aside Man's Sentence For Insurance Fraud

NEW YORK - A Second Circuit U.S. Court of Appeals panel on Oct. 14 denied a man's motion to set aside or correct his 97-month sentence for health care fraud, ruling that his attorney acted competently in reading the plea agreement (Leonid Kaplan v. United States of America, No. 15-2437-cr, 2nd Cir.; 2016 U.S. App. LEXIS 18485).

Mealey's Litigation Procedure - Vivendi Seeks Rehearing Of Panel's Affirmation Of Verdict In Securities Suit

NEW YORK - A Second Circuit U.S. Court of Appeals panel erred in affirming a federal jury's verdict against a French company for issuing a series of misrepresentations regarding liquidity in violation of federal securities law, and rehearing is necessary because the ruling is in conflict with U.S. Supreme Court precedent, the company argues in an Oct. 11 motion for rehearing and rehearing en banc (In re Vivendi S.A. Securities Litigation, No. 15-180, 2nd Cir.).

Mealey's Securities/D&O Liability - Vivendi Seeks Rehearing Of Panel's Affirmation Of Verdict In Securities Suit

NEW YORK - A Second Circuit U.S. Court of Appeals panel erred in affirming a federal jury's verdict against a French company for issuing a series of misrepresentations regarding liquidity in violation of federal securities law, and rehearing is necessary because the ruling is in conflict with U.S. Supreme Court precedent, the company argues in an Oct. 11 motion for rehearing and rehearing en banc (In re Vivendi S.A. Securities Litigation, No. 15-180, 2nd Cir.).