Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

Tag Archives: Second Circuit

California Defendants Beware: Failing to Compel Arbitration Against Named Plaintiff Could Have Far-Reaching Consequences

California defendants in class actions should be wary of seeking a strategic advantage by litigating before seeking to compel arbitration. The Court of Appeal held recently in Sprunk v. Prisma LLC  that a defendant in class action litigation can waive its right to seek arbitration against absent, unnamed class members by deciding not to compel … Continue Reading

Supreme Court Clarifies When Service by Mail is Permitted under the Hague Convention

The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention” or “Convention”), was designed to simplify and standardize the service of legal documents across international borders. But for decades, U.S. courts divided over a seemingly simple question: does the Hague Service Convention prohibit service by mail?… Continue Reading

Second Circuit Finds Use of “Who’s on First” Routine Not to Be Fair Use

The U.S. Court of Appeals for the Second Circuit, in a unanimous 3-0 ruling, decided that a Broadway play’s verbatim performance of a full minute from the iconic Abbott and Costello routine, “Who’s on First,” in a scene between an introverted, small-town boy and his demonic sock puppet, was not transformative or otherwise fair use … Continue Reading

Think Your Arbitration Award Is Final? Maybe “Look Through” It Again

The question of federal court jurisdiction over arbitration proceedings has historically led to different conclusions. A few years ago, the  United States Supreme Court clarified in Vaden v. Discover Bank that Section 4 of the Federal Arbitration Act (“FAA”) authorizes a federal court to “look through” to the underlying controversy to determine if there is federal court … Continue Reading

Second Circuit Blazes New Trail in Set-Top Box Cases: Cable Service and Boxes are Not Separate Products

Since 2008, cable customers have been suing cable operators across the country claiming operators violate the antitrust laws by forcing customers to lease set-top boxes from the operator to access “premium” cable services. Plaintiffs claim that the operators have “tied” one product (the service) to another product (the box) and that the arrangement is a … Continue Reading

You’ve Got (Foreign) Mail: Can Law Enforcement Get to it?

Even though Microsoft is a U.S. corporation subject to domestic subpoenas and warrants, prosecutors are not entitled to emails stored on its servers abroad, the Second Circuit ruled last week in Microsoft Corp. v. United States. In a majority opinion by Judge Carney, the Court held that warrants under the Stored Communications Act (“SCA”) are … Continue Reading
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