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

Court Rules that New York’s New Anti-SLAPP Law Applies Retroactively

On June 30, 2021, pop star Kesha was reportedly handed a victory by a New York state court, which ruled that the state’s new anti-SLAPP legislation applied retroactively to music producer Dr. Luke’s lawsuit, in which he claims Kesha defamed him by allegedly falsely accusing him of rape.

The court’s decision means that Dr. Luke will face an elevated burden of proof at trial, needing to prove by clear and convincing evidence that Kesha acted with “actual malice” when she made her allegations against him. Previously, a New York state trial court held that Dr. Luke was not a public figure and therefore only had to prove that Kesha either knew her statements were false or acted with reckless disregard for the truth. That court did not take into account the new anti-SLAPP law, which was passed on November 10^th, 2020. Continue Reading

Tags: Anti-SLAPP statutes, Free Speech Protections, Lukasz Gottwald v. Kesha Rose Sebert, N.Y. Civil Rights Law § 76-a(2), New York’s Anti-SLAPP Law, Project Veritas v. N.Y. Times Co., Strategic Lawsuit Against Public Participation, strategic lawsuits against public participation

New York’s Overlapping Price Gouging Laws

By Christopher E. Ondeck, John R. Ingrassia and Shannon D. McGowan on July 20, 2021 Posted in Antitrust, Price Gouging

On June 24, 2021, New York celebrated the lifting on most COVID-19 restrictions. Governor Andrew Cuomo announced the COVID-19 state of emergency would officially expire. With the expiration of the emergency declaration, the state of New York’s price gouging restrictions were also lifted. The New York price gouging statute provides for certain pricing restrictions “during any abnormal disruption of the market”, and that an abnormal disruption of the market is triggered by a declaration of a state of emergency by the Governor. After over a year of COVID-19 related pricing restrictions, the Governor’s announcement marked the end of those restrictions.

Tags: compliance, consumer goods, coronavirus, covid-19, emergency declarations, Enforcement, goods and services, market prices, price cap, price control, Price Fixing, price gouging, Price Gouging Compliance, price gouging enforcement, price gouging liability, Price gouging restrictions, Price gouging statutes, price gouging violations, State Attorneys General, State of Emergency, State Price Gouging Laws

More Lessons Learned from Theranos: Ensuring Privilege Protections

By Alyson Tocicki on July 15, 2021 Posted in Commercial Litigation, Life Sciences, Trial Issues

The prosecution of Elizabeth Holmes, founder of the infamous healthcare and life sciences company, Theranos, Inc., has sparked media attention around the country. With just a few months before trial is slated to begin, Holmes recently lost her pretrial battle over whether the attorney-client privilege precludes the introduction of certain emails with counsel. While the emails at issue remain sealed from public view, related filings and hearings indicate Holmes and lawyers at Boies Schiller Flexner LLP (“BSF”) attempted to prevent the Wall Street Journal from exposing the startup’s impending collapse.

Tags: Attorney-Client Privilege, Elizabeth Holmes, engagement letters, graf test, jury trials, Privilege, Theranos, Trial Publicity

Second Circuit Overturns FTC Antitrust Decision Against 1-800-Contacts Involving Trademark Settlement Agreements

By Nicole Sockett on June 29, 2021 Posted in Antitrust, Trademark

Earlier this month, the Second Circuit overturned a decision by the Federal Trade Commission (the “FTC”) holding 1-800-Contacts violated antitrust law by entering into trademark settlement and related agreements that restricted bidding on auctions held by companies that operate search engines. 1-800 Contacts v. Federal Trade Commission. Although the Second Circuit recognized that trademark settlement agreements are “not immune from antitrust scrutiny,” it disagreed with the FTC’s analysis of the alleged restraints set forth in the agreements. Continue Reading

Tags: 1-800 Contacts v. Federal Trade Commission, anticompetitive conduct, antitrust law, Federal Trade Commission, Federal Trade Commission (FTC), Second Circuit, trademark infringement, trademark settlement agreements

Hard to Say Goodbye: States Are Slowly Lifting States of Emergency

By Christopher E. Ondeck, John R. Ingrassia and Shannon D. McGowan on June 28, 2021 Posted in Antitrust, Price Gouging

In recent weeks many states have either started lifting pricing restrictions put in place during the COVID-19 pandemic or announced their plans to do so. Still, some state governments have indicated that they will continue to hold pricing restrictions in place as a means of protecting consumer welfare as people return to normal spending habits and economies recover from the toll of the pandemic. As the country begins turning the corner toward the end of the pandemic, the landscape of state price gouging restrictions remains muddy as governors take individualized approaches to states of emergency. Continue Reading

How Different Judicial Notice Rules Can Change an Outcome

By Seth H. Victor on June 25, 2021 Posted in Federal Rules, Litigation

Judicial notice is one of the less glamorous parts of motion practice. A request for judicial notice is typically a lower-priority background document, drafted towards the end of the brief-writing process, along with a notice of motion and declaration. But at times, questions relating to judicial notice standards warrant additional consideration, along with the merits of the case.

Tags: advisory committee, California evidence code, CTC Global Corp. v. Huang, federal law, federal rule of evidence 201, Horn v. Azusa Pacific Univ., judicial notice

Honesty is the Best Policy: Federal Circuit Affirms Vacatur of Judgment Due to Material Misrepresentations

By Marc Palmer on June 23, 2021 Posted in Appellate, Commercial Litigation

The United State Court of Appeals for the Federal Circuit recently affirmed a decision by the United States District Court for the Central District of California, setting aside a judgment and injunction in a patent infringement case due to material misrepresentations on the part of the prevailing party discovered after the final judgment was issued. This case serves as a reminder of the importance of making honest and factually accurate statements to a court and the severe consequences that can stem from failing to do so. Continue Reading

Tags: CAP EXPORT LLC v. ZINUS INC., Federal Circuit, material misrepresentations, patent infringement, patent’s validity, summary judgment, United States Court of Appeals for the Ninth Circuit, United States District Court for the Central District of California, Vacated Judgment

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