Harold Baer jr

In Layzer v. Leavitt, Medicare beneficiaries Judith Layzer and Ray Fischer sued the Secretary of Health and Human Services after their plan sponsors denied coverage under Medicare Part D for the drugs Cetrotide and Increlex, which were prescribed off-label for rare conditions (ovarian cancer and muscular dystrophy) not listed in the statutory compendia. The court addressed whether the statute and its implementing regulation required such compendia support for FDA-approved drugs to qualify as covered Part D drugs. The district court denied the Secretary’s motion for judgment on the pleadings and granted the plaintiffs’ cross-motion, holding that the Medicare statute’s definition of a covered Part D drug does not impose a compendia requirement when a drug is FDA-approved, and therefore reversed the coverage denials and ordered appropriate reimbursement.

healthcare

In Howe v. Bank of New York Mellon, plaintiff R. Davis Howe alleged that the trustee Bank of New York Mellon and other defendants caused losses of $13.2 million by wrongfully allowing the removal of $24 million in collateral securities from the PreTSL XX trust through a tender offer repurchase of trust preferred securities that violated the governing indenture. The plaintiff asserted eleven causes of action, including breach of contract, tortious interference with contract, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, unjust enrichment, and rescission, both individually and derivatively on behalf of the issuer. The court addressed cross-motions for summary judgment as well as prior motions to dismiss, granting them in part and denying them in part after analyzing the indenture terms, the validity of noteholder consents, and defenses such as economic interest in the tortious interference claims.

business & regulatoryproceduretorts & liability

In Veera v. Ambac Plan Administrative Order Committee, a former Ambac employee brought a purported class action under ERISA against the plan's administrative, investment, and compensation committees and their members, claiming breaches of fiduciary duties. The plaintiff alleged that the defendants imprudently continued to offer Ambac stock as an investment option and failed to monitor its suitability during the 2006-2008 class period, despite awareness of the company's loosening underwriting standards, overstated financials, and exposure to losses that led to a sharp stock decline and eventual bankruptcy. The defendants moved to dismiss, arguing that the plan required offering the stock and thus they exercised no discretionary control triggering fiduciary liability. The court denied the motion, holding that the plan documents conferred discretionary authority on the committees over plan assets and administration, making ERISA fiduciary duties applicable, and that the allegations plausibly stated claims for breaches of prudence and monitoring duties.

labor & employmentbusiness & regulatory

This case involved multiple hedge funds suing Porsche Automobil Holding SE and two of its executives for alleged violations of section 10(b) of the Securities Exchange Act, Rule 10b-5, section 20(a), and common law fraud. The plaintiffs claimed that Porsche secretly accumulated nearly all freely traded VW shares as part of a takeover plan, made false public denials, and used manipulative derivatives trades, causing a sharp rise in VW stock prices that led to losses on the plaintiffs' security-based swap agreements referencing VW shares. The court consolidated the actions and granted the defendants' motions to dismiss all complaints. The core reasoning was that the Supreme Court's decision in Morrison v. National Australia Bank barred application of the Exchange Act because the referenced VW securities were not listed on a U.S. exchange and the transactions were not domestic.

business & regulatory

This case is a proposed class action by subscribers of Sirius XM satellite radio alleging that the 2008 merger of Sirius and XM created an unlawful monopoly in violation of the Clayton and Sherman Acts, leading to higher prices, and that the company breached customer agreements and state consumer protection laws by misrepresenting a music royalty fee as a mere pass-through cost. The defendant moved to dismiss eleven late-added plaintiffs, certain state-law claims for lack of standing, and the contract-related claims, while plaintiffs sought to bifurcate the federal antitrust claims from the others. The court granted the motion to dismiss in part, dismissing the eleven plaintiffs added after the joinder deadline and some state consumer protection claims due to standing issues, but denied dismissal of other claims including certain contract and consumer protection allegations; it also denied bifurcation. The reasoning applied federal pleading standards under Twombly and Iqbal, emphasized that standing is generally antecedent to class certification, and assessed the sufficiency of allegations regarding the royalty fee description and market monopoly without reaching the merits of the unchallenged antitrust claims.

business & regulatoryprocedure

In Vasquez v. United States, the petitioner, who had been convicted after trial of conspiracy to distribute and possess with intent to distribute over five kilograms of cocaine, filed a pro se habeas petition under 28 U.S.C. § 2255 more than seven months after the one-year statute of limitations had run, claiming ineffective assistance of trial counsel for failing to object to certain wiretap evidence and for not advising him on the benefits of a guilty plea, and seeking equitable tolling. The court denied the petition, holding that Vasquez had not shown extraordinary circumstances warranting tolling of the limitations period. The court further found that even if the petition were timely, the ineffective assistance claims failed because counsel's decisions were reasonable and Vasquez could not demonstrate prejudice, particularly given his continued assertion of innocence and the modest sentencing disparity between a potential plea and the sentence received after trial.

criminal lawprocedure

This case concerned whether Frank Dileo, as alleged manager for Michael Jackson, entered into binding agreements with AllGood Entertainment for a Jackson family concert and later failed to perform, prompting claims of breach of contract and promissory estoppel against the Dileo defendants along with fraud against them and tortious interference against the AEG defendants, plus a request for a permanent injunction. The court dismissed the fraud, tortious interference, and permanent injunction claims. Fraud was not pleaded with the particularity required under Rule 9(b), tortious interference lacked sufficient allegations of the AEG defendants' knowledge of any contract, and the injunction request was moot because Michael Jackson had died and the relevant 2009 events had passed.

business & regulatoryproceduretorts & liability

Gucci America, Inc. sued three companies—Durango Merchant Services, Frontline Processing Corp., and Woodforest National Bank—that allegedly provided credit card processing services enabling online merchants to sell counterfeit Gucci products on sites like TheBagAddiction.com. The defendants moved to dismiss for lack of personal jurisdiction and failure to state a claim. The court denied the motion, finding that the defendants' business relationships with New York entities and the foreseeable flow of infringing goods into the state satisfied New York's long-arm statute and due process requirements for jurisdiction. The court also held that Gucci's allegations sufficiently stated claims for contributory trademark infringement.

business & regulatoryprocedure

The case involved ISDA, which holds copyrights in blank form Master Agreements used for derivatives transactions, suing Socratek for copyright infringement under 17 U.S.C. § 106 after Socratek obtained completed versions of those agreements from public SEC filings on the EDGAR website and resold them for profit. ISDA sought a preliminary injunction to halt the resales, while Socratek moved to dismiss, arguing that the Exchange Act and EDGAR's public-access mandate expressly permitted copying and resale of the filed documents. The court denied both motions, reasoning that the Exchange Act did not create an express conflict with or abrogation of copyright protections, that substantial similarity and potential defenses like fair use or implied license remained unresolved factual issues, and that ISDA failed to demonstrate likely success on the merits or a balance of hardships favoring injunctive relief.

business & regulatorypropertyprocedure

This case involved pension fund plaintiffs alleging violations of Securities Act sections 11, 12(a)(2), and 15 against Royal Bank of Scotland entities (as issuers and underwriters) and credit rating agencies for material misstatements and omissions in registration statements and prospectuses for a series of Harborview mortgage-backed securities offerings from 2006 to 2007. The court dismissed all claims against the rating agencies, holding they did not qualify as statutory underwriters. It also dismissed claims against the RBS defendants for offerings in which the plaintiffs had not purchased certificates, citing lack of standing, and dismissed claims alleging undisclosed rating agency conflicts, inadequate credit enhancements, and outdated models for failure to state a claim. However, claims based on alleged nondisclosure of mortgage originators disregarding their own underwriting guidelines were allowed to proceed under notice pleading standards. The rulings rested on statutory definitions of underwriters, Article III standing requirements, and the distinction between plausible omissions and conclusory allegations.

business & regulatoryprocedure

The case involves Caroline Memnon suing her former employer Clifford Chance for employment discrimination and retaliation under Title VII, §1981, NYSHRL, and NYCHRL, as well as breach of contract and tortious interference, based on allegations that the firm provided negative back-channel references and failed to issue an agreed-upon recommendation letter after her 2002 resignation under a settlement agreement; she also sued Sullivan & Worcester for discriminatory wrongful termination after her 2007 hiring and firing there. Defendants moved for summary judgment on all claims. The court granted summary judgment on some claims, such as those lacking evidence of collusion or specific communications, while denying it on others, including certain discrimination claims where genuine issues of material fact existed regarding disparate treatment and contract interpretation, and it addressed procedural issues like waiver of arbitration clauses.

labor & employmentcivil rightsprocedure

In Landmen Partners Inc. v. Blackstone Group, L.P., purchasers of Blackstone units in its June 2007 IPO brought a putative securities class action alleging that the registration statement and prospectus contained material omissions and misrepresentations about risks to performance fees from investments in portfolio companies such as FGIC and Freescale Semiconductor, in violation of Sections 11 and 12(a) of the Securities Act of 1933. Defendants moved to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The court granted the motion. It reasoned that the Offering Documents had no duty to disclose the alleged trends or uncertainties under Item 303 because they were not known to management and reasonably likely to have material effects at the time of the IPO, and that there were no material misstatements or GAAP violations.

business & regulatoryprocedure

Erin Primmer sued CBS Studios, alleging that her termination as a producer on the Montel Williams Show violated the ADA, New York State Human Rights Law, and New York City Human Rights Law because it was motivated by discriminatory animus stemming from a brain aneurysm she suffered in 2007. CBS moved for summary judgment on all claims and to strike portions of Primmer's affidavits and Local Rule 56.1 statement. The court denied both motions, holding that Primmer had raised genuine issues of material fact as to whether CBS regarded her as disabled under the pre-ADAAA definition of disability and as to whether CBS's stated reasons for termination were pretextual. The court further noted that in discrimination cases, self-serving affidavits can suffice to create triable issues on credibility where direct evidence is often limited.

labor & employmentcivil rights

The case involves Gayle Martz Inc. (GMI) suing Sherpa Pet Group LLC and its principals for trademark infringement and dilution, breach of contract, and breach of fiduciary duty after the defendants acquired GMI's pet travel products business and obtained licenses to use the SHERPA trademarks under an asset purchase agreement and related license agreements. The defendants asserted counterclaims for fraudulent misrepresentation and contract breaches, along with third-party claims against GMI's owner and accountant for malpractice, misrepresentation, and interference. On cross-motions for partial summary judgment, the court denied the defendants' motion in full and granted the motions by GMI and the third-party defendants in part, determining that the product license agreement had been validly terminated for material breach, establishing the defendants' liability for trademark infringement, while factual disputes over damages, setoffs, and certain third-party claims precluded complete resolution.

business & regulatoryproceduretorts & liability

In Gomez v. Brown, Christian Gomez petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 to challenge his New York state convictions for criminal sale of a controlled substance in the first and second degrees, asserting violations of his Sixth Amendment rights through the admission of hearsay testimony from an undercover officer about a co-conspirator's statements, as well as ineffective assistance from both trial and appellate counsel. The district court reviewed the magistrate judge's report and recommendation, which advised denying the petition with prejudice, along with the petitioner's objections. The court adopted the R&R in full, holding that the hearsay claim was procedurally defaulted and lacked merit because the statement was admissible as background evidence, and that counsel's performance was not constitutionally deficient under prevailing standards. The petition was therefore denied with prejudice.

criminal lawprocedure

This case was a putative class action brought by purchasers of Gildan Activewear stock against the company and two officers, alleging violations of sections 10(b) and 20(a) of the Securities Exchange Act based on claims that defendants made misleading statements and omissions about production problems at a Dominican Republic facility, difficulties integrating an acquired hosiery business, and the need for an inventory write-down. The court granted defendants' motion to dismiss the complaint under the PSLRA, Rule 12(b)(6), and Rule 9(b). The core reasoning was that plaintiffs failed to adequately plead scienter, as the officers' stock sales were not unusual in timing or amount when compared to their holdings and prior trading patterns, and the complaint lacked specific facts showing defendants knew or recklessly disregarded contrary information about the facilities or inventory; without a primary violation, the section 20(a) claim also failed.

business & regulatoryprocedure

This case involved record label plaintiffs alleging that defendants Usenet.com, Inc., Sierra Corporate Design, Inc., and their principal provided USENET access services that enabled widespread unauthorized distribution of plaintiffs' copyrighted sound recordings, asserting claims for direct, induced, contributory, and vicarious copyright infringement. The court granted plaintiffs' motion for terminating sanctions based on discovery abuses, granted plaintiffs summary judgment on all claims, and dismissed defendants' cross-motion for summary judgment under the DMCA safe harbor provision as moot. The decision rested on undisputed evidence that defendants promoted their service as a Napster replacement, failed to implement effective controls against infringement despite internal policies, and engaged in conduct that imputed knowledge and intent to facilitate infringement to the corporate defendants. Evidentiary motions and objections were resolved in conjunction with these rulings.

business & regulatoryprocedure

This case involves a challenge by security company ISI and its owner to a Department of Labor order debarring them from federal contracting for three years under the Service Contract Act for repeated wage underpayments to employees. The court granted summary judgment to the DOL, upholding the debarment. The reasoning was that ISI committed numerous and repeated violations of the Act, including after a prior consent order requiring compliance measures, and failed to show unusual circumstances warranting relief from the statutory penalty. Claims of bad faith by the government or racial bias were deemed irrelevant to the debarment decision.

labor & employmentbusiness & regulatory

This case involves Peter Gotti's petition under 28 U.S.C. § 2255 to vacate his federal convictions and sentence for racketeering, conspiracy to murder, and extortion tied to his leadership role in the Gambino organized crime family, including a plot to kill cooperating witness Salvatore Gravano. Gotti raised three claims: that the government withheld exculpatory recordings involving an FBI agent and Gravano in violation of Brady; that the trial court failed to adequately investigate a juror's post-verdict attempt to recant; and that the Supreme Court's decision in United States v. Santos invalidated a prior money-laundering conviction used in his case. The court denied the petition in full, reasoning that the recordings were not in the prosecution's possession, the juror's inquiry complied with Federal Rule of Evidence 606(b), and Santos does not apply retroactively or alter the outcome here.

criminal lawprocedure

In this copyright infringement case, major record companies and music publishers sued Hi5, a California-based operator of a social networking website, along with VideoEgg, alleging that user-uploaded videos on Hi5 infringed their copyrighted works through reproduction, performance, and distribution enabled by the site's video features. Hi5 moved to dismiss for lack of personal jurisdiction and improper venue in New York or, alternatively, to transfer the case to the Northern District of California. The court denied the motions to dismiss, finding that Hi5 had sufficient purposeful contacts with New York through targeted advertising, revenue from New York users, and the site's accessibility and use by New York residents to support jurisdiction under the state's long-arm statute and due process. However, the court granted the transfer motion, concluding that the balance of convenience factors, including Hi5's location, employees, servers, and the origin of the relevant technology and business operations in California, favored litigating there. The decision applies rules of internet-based personal jurisdiction to social networking sites while emphasizing the nexus between the claims and the defendant's forum contacts.

procedurebusiness & regulatory