Richard M. Berman

This case involved a qui tam action by the Public Patent Foundation against GlaxoSmithKline Consumer Healthcare under the False Marking Statute, 35 U.S.C. § 292, alleging that GSK improperly continued to mark its Citrucel fiber therapy products with the numbers of two patents that expired in January 2005, in order to deceive the public. After a bench trial, the court ruled for the defendant, finding that GSK had not violated the statute. The core reasoning was that the plaintiff failed to prove the required element of intent to deceive, as GSK's patent attorneys lacked knowledge that the markings were improper after expiration, the company promptly removed the markings upon notice of the suit and implemented new procedures, and no evidence showed deceptive purpose.

business & regulatory

This case is a putative class action securities lawsuit brought by investors against MRU Holdings executives, Merrill Lynch, and its auditor, alleging violations of federal securities laws through false statements and omissions about the risks of auction rate securities used to securitize student loans, which allegedly inflated the company's stock price. The court granted the defendants' motion to dismiss the complaint. The core reasoning was that the company had adequately disclosed the relevant risks in its public filings, plaintiffs failed to identify specific fraudulent statements or manipulative conduct by Merrill, and there was insufficient pleading of scienter, particularly given that executives purchased rather than sold stock during the class period. The auditor was not shown to have ignored red flags in its audit.

business & regulatory

The case involved a dispute over long-term disability benefits under an ERISA-governed group insurance policy issued by American International Life Assurance Co. to the plaintiff's employer. The plaintiff claimed benefits for a disability resulting from traumatic brain injury due to vaccinations, but the insurer denied the claim beyond 24 months by classifying it as a mental illness. The court denied the insurer's motion for summary judgment and granted the plaintiff's cross-motion, finding that the denial was arbitrary and capricious because substantial evidence indicated demonstrable structural brain damage, which is excluded from the mental illness limitation, and the insurer relied on experts who did not examine the plaintiff while ignoring treating physicians' opinions.

healthcarelabor & employmentbusiness & regulatory

In this case, plaintiffs All-Star Marketing Group and related companies sued defendants Media Brands Co. and Saonjay Mirpur for trademark infringement under federal law and copyright infringement, alleging unauthorized use of marks associated with consumer products like The Snuggie and Bumpits, as well as a copyrighted website. After defendants failed to appear or respond, the district court entered a default judgment and permanent injunction against them. The matter was referred to a magistrate judge for a damages inquest, who recommended $337,000 in statutory damages for the infringements plus attorneys' fees, while upholding the injunction's scope. The court adopted the magistrate's report in full after finding no clear error and no timely objections from the parties, noting that plaintiffs had sought a specific per-mark damages amount that limited the award.

business & regulatoryprocedure

In this case, limited partners of the hedge fund Lipper Convertibles sued its auditor PwC for securities fraud under Section 10(b) and Rule 10b-5, as well as common law fraud, negligent misrepresentation, malpractice, and breach of contract, alleging that they were induced to invest based on misleading unqualified audit opinions from 1995-2000 that falsely stated the fund's financials complied with GAAS and GAAP. The plaintiffs sought damages for the difference between their investments and withdrawals. PwC moved for summary judgment on the direct claims, arguing lack of standing and no evidence of scienter. The court granted the motion and dismissed the direct claims, holding that the plaintiffs failed to demonstrate a direct, distinct injury separate from harm to the partnership, rendering the claims derivative in nature under both federal and New York law.

business & regulatoryprocedure

This case concerns Fendi's claims against Filene's Basement and Retail Ventures for selling handbags, purses, and accessories bearing counterfeit or imitation Fendi trademarks, in violation of the Lanham Act's provisions on trademark counterfeiting, false designation of origin, and dilution, as well as related New York state law claims for unfair competition and dilution. Defendants raised affirmative defenses including laches and acquiescence and cross-moved for partial summary judgment, arguing issues of fact on counterfeiting, the availability of gray-market goods, and the absence of bad faith, while also seeking to dismiss Retail Ventures and strike certain evidence. The court granted Fendi's motion for summary judgment in part and denied it in part, while denying defendants' cross-motion in full, based on uncontroverted evidence of defendants' use of the marks in commerce after they became famous, their willfulness, and the insufficiency of the asserted defenses.

business & regulatory

The case involved SerVaas Inc. seeking recognition in U.S. federal court of a 1991 French money judgment against the Ministry of Industry of the Republic of Iraq under New York's Uniform Foreign Country Money-Judgments Recognition Act. Defendants moved to dismiss for lack of subject matter and personal jurisdiction under the Foreign Sovereign Immunities Act (FSIA), arguing that neither Iraq nor the Ministry fell within any exception to foreign sovereign immunity, that Iraq was not liable for the Ministry's separate judgment, and that U.S. assets were protected from enforcement by Executive Order 13364. Plaintiff countered that the FSIA commercial activity exception applied because the underlying contract involved goods and services from a U.S. company and that Iraq was the alter ego of the Ministry. The court examined declarations on Iraqi law, rebutted the presumption of the Ministry's independence, applied the commercial activity exception to both defendants, and addressed related motions concerning service, striking declarations, and enforcement issues.

procedurefederal power

This case involved a class action lawsuit by African American plaintiffs against Toys 'R' Us and related defendants, alleging racial discrimination under 42 U.S.C. § 1981 and related state laws. The New York plaintiffs claimed that the retailer selectively inspected receipts at stores in predominantly African American neighborhoods but not in white ones, interfering with their contract rights. Plaintiff Rhodes separately alleged interference with his right to contract and involvement in his unlawful prosecution at an Ohio store. The court granted in part and denied in part the defendants' motion for summary judgment, finding material factual disputes on intentional discrimination for the New York claims but dismissing Rhodes' claims for lack of state action and evidence of purposeful discrimination. State law claims were analyzed identically to the federal ones, and conspiracy claims were dismissed.

civil rights

This case involves pro se plaintiffs suing Bank of America for alleged violations of the Fair Credit Reporting Act, Fair Debt Collection Practices Act, Truth in Lending Act, and Minnesota state laws on consumer fraud, trespass, conversion, and slander of title. The claims centered on inaccurate credit information reported beginning in 2001 and the 2002 foreclosure sale of the plaintiffs' mortgaged property in Minnesota. Following prior dismissal and amendment of the complaint, the parties filed cross-motions for summary judgment on the remaining claims. The court granted Bank of America's motion in part and denied it in part, while denying the plaintiffs' renewed motion for summary judgment, based on insufficient evidence of damages, the bank's status as a creditor rather than debt collector, its contractual and legal rights regarding the property, and venue requirements for real property claims under Minnesota law.

business & regulatorypropertyproceduretorts & liability

This consolidated securities class action was brought by purchasers of Sea Containers Ltd. securities against the company and certain officers, alleging material misstatements in financial statements regarding asset impairments and internal controls during the class period from February 2004 to March 2006, in violation of Sections 11, 12(a)(2), and 15 of the Securities Act and Sections 10(b) and 20(a) of the Exchange Act. The Individual Defendants moved to dismiss, arguing lack of standing for some claims, failure to plead false or misleading statements with particularity, and insufficient facts supporting a strong inference of scienter. The court granted the motion to dismiss without prejudice, finding that the complaint did not adequately allege actionable misstatements or omissions in offering materials or financial disclosures, nor facts giving rise to the required scienter inference for the Exchange Act claims, while also noting deficiencies in the control person and standing allegations. The core reasoning centered on the heightened pleading standards under Rules 9(b) and the Private Securities Litigation Reform Act, which require specific facts rather than conclusory assertions about overvaluations and knowledge.

business & regulatoryprocedure

The case involved the New York Times Company's FOIA request to the Department of Defense and Department of Justice for records concerning the National Security Agency's Terrorist Surveillance Program, a domestic intelligence and wiretapping initiative authorized by President Bush. After the agencies withheld or redacted numerous documents citing national security and other grounds, the Times sued to compel disclosure, arguing the withholdings lacked a lawful basis under FOIA. The court reviewed the defendants' motion for summary judgment, along with declarations, Vaughn indexes, and classified materials submitted for in camera inspection, to assess claims under FOIA Exemptions 1 (classified information), 3 (statutorily protected information), and 5 (deliberative process and related privileges). It determined that the classified documents were properly withheld under Exemptions 1 and/or 3, while addressing the adequacy of the search and the status of unclassified materials.

free speechfederal powerprocedure

The case concerned allegations by the Weizmann Institute of Science and relatives of Natasha Gelman that defendants Neschis, Liftman, and Diamond conspired to defraud the elderly and incompetent Gelman of her assets, including control of the Anturia Foundation, by exerting undue influence to alter by-laws and divert funds. Defendants moved to dismiss the consolidated complaints under Rules 12(b)(6) and 12(b)(7), arguing that the claims were barred by collateral estoppel from a prior Liechtenstein arbitration award finding Gelman had testamentary capacity and from a New York probate decree admitting her 1993 will. The court had previously granted the motion in part and denied it in part, holding that the probate decree precluded relitigation of the will's validity but that further discovery was needed on the arbitration's preclusive effect; it dismissed RICO claims for failure to plead predicate acts or a pattern, dismissed tortious interference with prospective inheritance as unrecognized under New York law, but allowed conversion and tortious interference with contract claims to proceed based on plaintiffs' future interests under earlier by-laws.

proceduretorts & liabilityfamily lawproperty

This case involved securities fraud claims by Kingsway Financial Services and its subsidiaries against ACHI's officers, directors, auditor PwC, and others, alleging that defendants understated insurance loss reserves to inflate ACHI's stock price during Kingsway's 2002 tender offer and acquisition of ACHI, along with related common law fraud and a fiduciary duty claim by ACHI against officer John Dore arising from his employment contract. After prior dismissals, the third amended complaint added claims by the subsidiaries and ACHI, prompting defendants' partial motion to dismiss arguing lack of loss causation for the subsidiaries and that the employment contract claim should be dismissed or stayed due to a forum selection clause favoring Illinois, laches, and abstention under Colorado River in light of a parallel Illinois state court action. The court applied Rule 12(b)(6) standards and considered evidence of the parallel proceedings, ultimately granting the motion in part and denying it in part.

business & regulatoryproceduretorts & liability

This case involved a carpenter who sued his union's pension plan, benefit funds, and district council after being denied pension benefits, claiming that his accumulated vesting credits were improperly forfeited due to breaks in service caused by disability. The plaintiff sought relief under the ADA, New York State and City human rights laws, and ERISA, arguing that plan rules were misapplied, a medical grace period should have prevented forfeiture, and anti-discrimination laws barred the loss of credits. The court denied the plaintiff's motion for summary judgment and granted the defendants' cross-motion, determining that the plan documents effective after 1976 eliminated any medical grace period for post-1976 breaks, the trustees' interpretation and application of the plan was reasonable and not arbitrary or capricious under ERISA, and the discrimination claims did not require restoration of the credits. The court did not reach the defendants' proposed statute of limitations defense.

labor & employmentcivil rights

This multidistrict class action was brought by purchasers of excess value shipping insurance from UPS and related defendants, alleging issues with the insurance program and resulting in a proposed settlement featuring a voucher redemption program for class members along with separate payment of attorney fees by defendants. The court approved the settlement but deferred ruling on class counsel's request for $19.34 million in fees (and related incentive awards and objectors' counsel fees) until the actual value of the coupon-based relief could be determined. The core reasoning was that while percentage-of-fund is the preferred fee assessment method in common fund settlements (with lodestar serving only as a cross-check), the projected redemption rate for vouchers was too uncertain to calculate the settlement's total benefit to the class, requiring a delay until redemption experience provided that data; objectors' fee requests were also deferred as they were tied to class counsel fees.

procedurebusiness & regulatory

In Psihoyos v. National Geographic Society, photographer Louis Psihoyos sued the National Geographic Society under the Copyright Act, alleging that NGS infringed his copyrights in a photograph of a dinosaur fossil and a related illustration from his book Hunting Dinosaurs by publishing similar images in its March 2003 magazine issue. The court granted NGS's motion for summary judgment and denied Psihoyos's cross-motion, finding no copyright infringement. The core reasoning was that the NGS photograph was not substantially similar to Psihoyos's work due to differences in perspective, sand coverage, and other expressive elements, and the NGS illustration was not substantially similar to the one in Psihoyos's book because of variations in artistic style, color, and composition.

propertyprocedure

This case was a consolidated securities class action brought by investors who purchased Elan Corporation common stock, alleging that the company overstated revenues by at least $648.8 million during the February 2000 to July 2002 class period through accounting schemes involving joint ventures, in violation of Sections 11, 12(a)(2), and 15 of the Securities Act and Sections 10(b), 14(a), and 20(a) of the Exchange Act. Plaintiffs sued Elan, four executives, and auditors KPMG. After consolidation, discovery, motions to dismiss, and objections to a proposed resolution, the court held a fairness hearing and granted final approval of a $75 million class settlement under Fed. R. Civ. P. 23(e). The court also granted in part and denied in part class counsel's request for 20% of the settlement plus expenses and an objector's separate fee application, awarding reduced fees based on lodestar calculations, hours worked, and case-specific factors.

business & regulatoryprocedure

United Airlines sued its insurer seeking a declaratory judgment and damages for business interruption coverage under a terrorism policy for system-wide revenue losses after the September 11, 2001 attacks, including the FAA's nationwide ground stop order. The policy provided coverage for losses from damage to insured locations or civil authority prohibitions on access resulting directly from damage to adjacent premises, limited to two weeks. The court denied United's motion for summary judgment and granted the insurer's cross-motion, ruling that the FAA order was not triggered by damage to adjacent premises of United's locations and that the destruction of a WTC ticket counter did not extend coverage to the national shutdown. New York law governed the contract interpretation, and the policy language did not support United's broader reading of the civil authority clause.

business & regulatory

This case involved Marisol Cruz filing suit on behalf of her minor son Christopher Soto to challenge the Social Security Administration's denial of Supplemental Security Income disability benefits based on his juvenile diabetes. The ALJ found that the child's condition was a severe impairment but did not meet or functionally equal a listed impairment, and the Appeals Council upheld that decision even after receiving additional medical evidence. The court remanded the matter to the Commissioner for further development of the administrative record. The core reasoning was that the agency has an affirmative duty to ensure a full and fair hearing by filling gaps in the record, properly weighing treating physician opinions, and analyzing all submitted evidence, which had not occurred here.

healthcarefederal power

The case involved pro se plaintiff Amy Weissbrod, an attorney, suing numerous New York state judicial entities, judges, clerks, and private parties over alleged violations of her First, Fifth, and Fourteenth Amendment rights, plus the ADA, stemming from 1997 eviction proceedings and a stipulation to vacate her apartment, as well as subsequent state court actions where she sought to vacate the stipulation and related rulings. She requested damages, equitable relief including invalidation of state decisions, transcripts, and a stay of state proceedings. The district court adopted the magistrate judge's report and recommendation, granting defendants' motions to dismiss the complaint in its entirety against all parties and denying the plaintiff's cross-motion and order to show cause. Dismissal was based on the Rooker-Feldman doctrine barring federal jurisdiction over claims seeking to relitigate state court outcomes, Eleventh Amendment immunity for state defendants, absolute judicial immunity, res judicata and collateral estoppel from prior state rulings, and lack of viable claims against remaining defendants.

civil rightsprocedure