Minding Your Business

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

Federal Judge Finds Copyright Issues “Embedded” in Social Media Re-Posts

Judge Jed Rakoff of the Southern District of New York recently denied a motion to dismiss in a copyright dispute involving the unlicensed “embedding” of a social media video. In doing so, the court explicitly and definitively rejected the Ninth Circuit’s “server rule,” under which the Ninth Circuit held that re-posting of online content does not constitute a separate act of infringement where the infringing copy is stored only on third party servers. Instead, Judge Rakoff held that by re-posting the copyrighted content online, defendants had implicated plaintiffs’ exclusive display right – regardless of whether they created and stored a copy on their own servers. The opinion states that to hold otherwise would be to “make[] the display right merely a subset of the reproduction right.” Nicklen v. Sinclair Broadcast Group, Inc., et al.

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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 10th, 2020. Continue Reading

New York’s Overlapping Price Gouging Laws

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.

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More Lessons Learned from Theranos: Ensuring Privilege Protections

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.

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

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

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

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

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.

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