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In SDNY Mouse Motion Marathon Rulings in Class Action Against BHH Rodent Repellents

By Matthew Russell Lee

SDNY COURTHOUSE, April 1 – As a class action lawsuit against BHH's rodent repellers creeps toward trial or settlement, on April 1in the the U.S. District Court for the Southern District of New York Judge William Pauley heard arguments and ruled on no fewer than 14 motions in limine. There were nine from the class action plaintiffs, mostly successful, and five from the defendant, most unsuccessful.

During the three hours of argument, Judge Pauley said today is not the day to admit anonymous customer reviews from from the likes of "TaterSpud59" (whom he referred to as Tater Tot), and said that FTC press releases dubious about repellers will or would be admissible at trial, with a possible limiting instruction.

There was discussion of experts including a Michigan State University protocol which Judge Pauley shot down, adding that after MSU's victory over Duke, he is not disposed toward them. Judge Pauley took more time listening to arguments than many other judges would, and said he said spent the rainy Sunday - on which Duke was eliminated from NCAA March Madness - to read all of the papers. The sense, after the mouse motion marathon, was that the plaintiffs are in the driver's seat, and that the case may settle. There is a mediation scheduled for April 9 before Hon. John S. Martin (Ret). But Inner City Press will be cover it and what happens in the SDNY either way. The case is Hart, et al. v. BHH, LLC d/b/a Bell + Howell, et al., 15-cv-04804; class counsel is Yitzchak Kopel  and BHH is now represented by Quinn Emanuel We were also at Judge Pauley's courtroom on the news there would be a proceeding in US v Genovese, a hedge fund fraud prosecution. But it was not there - once we left the courtroom and retrieved electronics, we were able to ask and learned Genovese was adjourned to April 10. We'll have more on this. Back on March 28 an insider trading action by the SEC was under heavy fire in SDNY courtroom of Judge Richard M. Berman. The SEC had in 2017 grand alleged that "Ariel Darvasi and Amir Waldman were in possession of material nonpublic information about the impending acquisition when they purchased Mobileye securities" just prior to its acquisition by Intel. But on March 28 the defendants' lawyers, moving for summary judgment, mocked the arguments. They said Waldman was "not a direct insider;" they said suspicious trades are not enough, mere contact with an insider is not enough. The SEC lawyer responded with tales of MobileEye's founders private jet flight to New York to nail down the Intel deal. Much of the argument came down to whether a response by Waldman during deposition, that he had been aware of the trip - "yes" - before the words, for the merger, were said, should go to a jury. The defendants insisted on their video. There was no other media in the court room but Inner City Press, still without its electronics. So what of general deterrence? What of transparency? In the SDNY there is no comprehensive calendar, and for now the Press that seeks to report on as much as possible is still restrained. We'll have more on this. Back on March 20 in a lawsuit brought by Sony the correct meaning of natural evolution, Darwinistic or as term of art, was debated for an hour before SDNY Judge Jed S. Rakoff. Sony's lawyer began by pointing out the executives who traveled from Tokyo and London for this argument, at which there was only one media present: Inner City Press. Judge Rakoff began by criticizing the pro hace vice lawyers for defendant EVS Codec Technologies, LLC for ignoring the local rules and not saying undisputed or disputed with citatation for each paragraph in Sony's motion to dismiss. But Sony didn't provide citations either and on balance EVS Codec gave as good as it got. Did the covenant not to sue which only covered upgrades, enhancements and natural evolutions carry over to new codec (audio to 0/1 digital) technology? It was EVS which better explained the differences between AMR to EVS, as Judge Rakoff returned several times to an analogy between the evolution, natural or otherwise, from the Model T to the Cadillac. Judge Rakoff said he will issue a "who will win" ruling in a week, with something longer to follow, in this case 1:18-cv-09518-JSR, Sony Mobile Communications Inc. v. EVS Codec Technologies, LLC. It's a big money case, but there was no other media covering it. It is hard to know, in the SDNY courthouse, what is going on; it is harder still to cover it with laptop and, yes, smart phone taken at the metal detectors. Is the entire courthouse, at least publicly, only about Trump? The beat goes on, between Bronx murders and attempts to seize the Colombian FARC rebels' condos and bank accounts with BB&T. Across Pearl Street earlier on March 20, plaintiffs pursuing assets of the Revolutionary Armed Forces of Colombia or FARC before SDNY Judge Andrew L. Carter named the banks involved, including not only Citigroup, Safra and UBS but also BB&T, which is applying to the US Federal Reserve to buy Suntrust. The plaintiffs' lawyers described the bank accounts, condominia in the Four Seasons and luxury ships of 100 and 200 feet. Some are being pursued in Florida but also in New York. Judge Carter wanted to know the difference between the two actions. Raymond James, the financial institution, appeared to be the only answer. But on the kingpins and other banks, we'll have more. Back on March 6 in the SDNY a union official who pled guilty to insider trading last August was sentenced by Judge Alison Nathan to three month of imprisonment, apparently to be served in a half-way house in the Philadelphia area. While Judge Nathan said she'd read somewhen that Jhonatan Zoquier might go back to work for the union in an administrative position. But he says he's working construction for his uncle. He traded on inside information for a year, 17 times, with 9 trades profitable. He information was provided by Daniel Rivas, then of Bank of America. The government's sentencing submission said "they had known each other since childhood and lived together in New York as young adults. Rivas has repeatedly referred to Zoquier as his best friend. Zoquier refers to Rivas in his submission as “like a brother to him.” (Def. Let. at 12.) In March 2016, Zoquier began trading on Inside Information offered to him by Rivas, after Zoquier expressed the desire for additional money, including for his upcoming wedding. Zoquier ultimately traded in at least seventeen stocks based on information from Rivas, profitably so in nine stocks. Zoquier earned profits of more than $30,000 from his trading, between March 2016 and April 2017." Zoquier's lawyer told Judge Nathan, no one is watching this case to be deterred. But Inner City Press was there watching. And afterward it was wondered if the 90 days will take longer, if they will be served only on the weekends. Earlier on March 6 a man who was in the passenger's seat of a jeep in The Bronx with kilos of heroin and 14 kilos of cocaine was sentenced to 51 months imprisonment on by SDNY Judge P. Kevin Castel. His name was Edmundo Aispuro and as Judge Castel told it, he was not the mastermind. He apologized to his son Max, aged six, who was in the courtroom; his lawyer asked that he serve his time in Oregon near his family. Castel wondered pointedly what Aispuro has thought about the families who'd be destroyed by all these drugs, moved around in a suitcase on wheels. He advised Aispuro to, as Rilke puts it, change his life. Back on February 15 when Gustavo Salvador pled guilty to selling oxycodon in The Bronx before SDNY Judge Paul A. Engelmayer, his two lawyers tried to argue for a suspended remand based on the cold in the MDC Brooklyn. Judge Engelmayer turned them down saying he had personal knowledge that the heat was back on; not surprising. Surprising, though, was that a Bronx oxy dealer was represented by the white shoe Goodwin Proctor lawfirm. Was it pro bono? Their representation goes back at least until Thanksgiving, before the MDC Brooklyn conditions became public. In the audience, a young child then a baby cried. The volume of oxy pills was in the thousands, according to the indictment. The sentencing guidelines run from 57 to 71 months. Judge Engelmayer said he said something else on his schedule coming up, should the sentencing be rescheduled? It went forward. Goodwin Proctor. Later on February 15: on East 104th Street in Manhattan last April 24, multiple gunshots to the chest killed 17-year old Samuel Ozuna. A week later, 24-year old Gary Turner was arrested and charged. When Turner on February 15 changed his plea to guilty in the U.S. District Court for the Southern District of New York, Azuna's family members sat on one side of the courtroom. On the other, separted by security officers, were supporters of Turner. In the back, the only media in the room, was Inner City Press.


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