Current Developments in the US District Court for the
Eastern District of New York
Posted: August 14, 2015

Court Rejects Settlement in Class Action Due to Improper Communications by Class Counsel

In In re Am. Express Anti-Steering Rules Antitrust Litigation, 11-MD-2221 (E.D.N.Y. August 4, 2015), Judge Nicholas G. Garaufis took the unusual step of denying a motion for final approval of a negotiated settlement in an antitrust class action on the ground that he was not satisfied that the settlement was “fair, reasonable, and adequate” because of his “serious concerns about...


Posted: August 11, 2015

Judge Weinstein Chastises New York City for Abusive Revocation of Retirement Benefits

“It is somewhat absurd for a federal district judge to have to slosh its way through the swamps of New York City retirement plans.” So lamented Judge Weinstein as he began his lengthy analysis of the plaintiff’s challenge to a decision by one of New York City’s employee pension systems to revoke the plaintiff’s eligibility for the richest category of...


Posted in EDNY, Due Process
Posted: August 10, 2015

Reimbursement of Expert Fees Not Awardable Under FLSA

On July 29, 2015, the Second Circuit issued a decision in Gortat v. Capala Bros., 14‐CV-3304, reversing a decision by the EDNY and holding that expert fees may not be awarded to a prevailing plaintiff under the Fair Labor Standards Act. In Gortat, the EDNY awarded the plaintiffs, who had prevailed on their FLSA claims against the defendant, not only...


Posted: August 3, 2015

Attempt to Recover Money from Thief not Covered by Fair Debt Collection Practices Act

On July 21, 2015, the Second Circuit issued a decision in Beauvoir v. Israel, 14‐CV-3794, holding that an attempt to recover money owed as a result of a theft is not covered by the Fair Debt Collection Practices Act (“FDCPA”). In Beauvoir, the defendant was an attorney employed by the company that provided natural gas to the plaintiffs’ home. The...


Posted in EDNY, FDCPA
Posted: July 16, 2015

Lead Poisoning Verdict

After a two-week trial before Judge Weinstein, on July 10, 2015, an Eastern District jury awarded $2 million to the plaintiffs in G.M.M. v. Kimpson, 13 CV 5059 (EDNY, July 10, 2015), a residential lead poisoning case. Plaintiffs were a mother and her minor child who rented a basement apartment in a pre-1960 building in Brooklyn that was owned at...


Posted: July 15, 2015

Schlam Stone & Dolan Partner Bennette Deacy Kramer Participates in Launch of EDNY Pro Se Legal Assistance Project

On July 7, 2015, the United States District Court for the Eastern District of New York and the City Bar Justice Center cut the ribbon on their Federal Pro Se Legal Assistance Project (FedPro), to provide information, advice, and limited-scope legal assistance to people proceeding pro se in a variety of federal civil cases. Schlam Stone & Dolan partner Bennette...


Posted: July 3, 2015

Criminal Trial Properly Continued Despite Defendant’s Absence

On June 25, 2015, the Second Circuit issued a decision in United States v. Yannai, 13-4466, finding that a trial court did not err in continuing a criminal trial without the defendant being present based on its finding that the defendant had deliberately absented himself from trial. In Yannai, the defendant appealed to the Second Circuit the decision by the...


Posted in EDNY, Trial
Posted: May 14, 2015

Judge Scanlon Drops The Hammer On “Evasive” Non-Party Witness

In Allstate Ins. Co. v. Nazarov, 11-CV-6187 (E.D.N.Y. March 25, 2015), Magistrate Judge Vera M. Scanlon dealt with the evasiveness of a non-party witness who had repeatedly come up with excuses to avoid giving deposition testimony. Plaintiffs moved for discovery from the unrepresented witness, Alena Kuturova-Pidgurskyy, concerning alleged spoliation of evidence in the case. After Kuturova-Pidgurskyy previously failed twice to...


Posted: May 4, 2015

Court Lacks Subject Matter Jurisdiction Under Probate Exception

On April 14, 2015, the Second Circuit issued a decision in Mercer v. Bank of N.Y. Mellon, 14-2955-CV, affirming the dismissal of an action for lack of subject matter jurisdiction under the probate exception. In Mercer, the EDNY dismissed the plaintiffs’ complaint based on the probate exception to federal diversity jurisdiction because the plaintiffs’ claims related to property at issue...


Posted in EDNY, Jurisdiction
Posted: April 24, 2015

Citation to Scientific Articles Saves Complaint from Dismissal in Class Action Alleging Marketing of Skin Care Cream Was False and Deceptive

In a March 31, 2015 order in Tomasino v. The Estee Lauder Companies, Inc., et al., 13-CV-4692 (EDNY March 31, 2015), Judge Edward R. Korman declined to dismiss a purported class action alleging that Estee Lauder’s marketing of a line of nighttime facial creams was false and deceptive under New York General Business Law sections 349 and 350. In a...