Current Developments in the US District Court for the
Eastern District of New York
Posted: February 11, 2021

Judge Azrack Denies Motion To Dismiss Deceptive Practices Claims Against Retail Chain Selling Merchandise Exclusively In Its Outlet Store With “Suggested Retail” Price Tag

Posted by Solomon N. Klein, Litigation Partner

As part of a line of cases involving consumer lawsuits against retail chains with “outlet” stores, Judge Joan M. Azrack denied defendant’s motion to dismiss plaintiffs’ deceptive practices claims, while granting in part the motion to dismiss other claims. Casio v. Vineyard Vines LLC, 19-cv-5135 (E.D.N.Y. Feb. 9, 2021) (JMA)(AYS).

Some background: It turns out that “outlet” stores are not necessarily outlets for brands to sell marked down or off-season items previously on sale in its regular stores. Outlets can sell items that are initially manufactured for and sold at the outlet store. The courts have apparently not been offended by this so long as the labeling is not misleading, which has now been the subject of a growing number of cases.


Posted: December 30, 2020

A Remembrance of Judge David G. Trager: A Decade Since His Passing

By Solomon N. Klein, Litigation Partner

The EDNY Blog rarely expresses sentiment – though every blog post is in fact an expression of respect for the Judges of the EDNY and our notion that the EDNY occupies a rightful place among the leading legal institutions in the country.

This upcoming 13th of January will be the tenth anniversary (yartzeit) of the passing of District Judge David Gershon Trager, . . .

, . . .


Posted in EDNY
Posted: December 22, 2020

Judge Cogan Dismisses Civil RICO Action In Response to Plaintiff’s Motion for Default Judgment

Posted by Solomon N. Klein, Litigation Partner

*Update: On Jan. 21, 2021, Judge Cogan granted plaintiff’s motion for reconsideration of the order denying default judgment and vacated the order dismissing the action.  The Judge found that “unlike its motion for a default judgment, plaintiff for the first time draws the connections between the broadly pleaded allegations in the complaint and the detailed, but difficult to decipher, supporting exhibits.”  

Judge Brian M. Cogan recently dismissed an insurer’s civil RICO action against dozens of named and unnamed defendants alleging a fraudulent no-fault insurance enterprise. The plaintiff moved for default judgment – only to have the Court analyze the complaint and dismiss the action for failing to properly plead the RICO elements. Am. Trans. Ins. Co. v. Bilyk, 19 civ 5171 (E.D.N.Y. Dec. 14, 2020) (BMC).

A practice note: Litigators are oft-tempted to employ civil RICO claims when representing plaintiffs – and the seeming benefits can be quite enticing. The victimized clients are grateful to mark the defendants as “racketeers” – not to mention the prospect of treble damages. The RICO statute also open the doors to the federal courts and can perhaps solve pesky jurisdictional problems for out-of-state defendants. Yet, civil RICO cases often fail to gain traction and plaintiffs face significant difficulties in properly pleading the necessary elements of RICO actions. As a result, the pleadings face judicial scrutiny and skepticism and the dismissal of the RICO claim, when it’s the only basis for jurisdiction, can result in the entire case being dismissed.

In the case before Judge Cogan, . . .


Posted in EDNY, Default Judgment, RICO
Posted: December 17, 2020

Judge Hurley Bars Evidence of Mental Health Issues And Drug Use At Trial Of Defendant Accused Of Attempting To Provide Material Support to ISIS

Posted by Solomon N. Klein, Litigation Partner

Judge Denis R. Hurley recently granted the government’s motion to preclude the defendant from presenting evidence of mental health and drug abuse at his trial – rejecting the defendant’s argument that evidence of mental health and drug abuse was relevant even in the absence of an insanity defense. U.S. v. Redzepagic, 17 CR 228 (E.D.N.Y. Nov. 14, 2020) (DRH).


Posted in EDNY, Evidence
Posted: March 23, 2020

Judge Garaufis Grants In Part Motion to Preclude Transcript of 911 Call Where Victim Described Being Shot and Identified the Shooter

Posted by Solomon N. Klein, Litigation Partner

In a fact pattern echoing a law school Evidence Exam, Judge Garaufis granted in part and denied in part competing motions in limine regarding admissibility of an emergency 911 call where the victim described being shot by the defendant. United States v. Shipp, 19 CR 29 (E.D.N.Y. Mar. 9, 2020) (NGG).


Posted in Evidence
Posted: March 6, 2020

Judge Kuntz Remands Personal Injury Action After Adopting Magistrate Judge Mann’s R&R Finding That Defendants Failed to Establish Amount in Controversy Threshold

Posted by Solomon N. Klein, Litigation Partner

Judge William F. Kuntz, II, recently overruled defendants’ objections to the Report and Recommendation issued by Magistrate Judge Roanne L. Mann, and remanded a personal injury action for lacking the amount in controversy threshold in diversity actions. Daversa v. Cowan Equipment Leasing, LLC, 20-CV-163 (E.D.N.Y. Feb. 28, 2020) (WFK)(RLM).


Posted: February 20, 2020

Judge Johnson Dismisses Indictment Against Incompetent Defendant After Rejecting Government’s Request To Involuntarily Medicate Defendant

Posted by Solomon N. Klein, Litigation Partner

In a short but emphatic ruling, Judge Sterling Johnson put an end to a criminal case against an incompetent defendant after rejecting the government’s request to forcibly medicate defendant to restore his competency. United States v. Kendall, 18 CR 532 (E.D.N.Y. Feb. 11, 2020) (SJ).


Posted in EDNY