First up this week is a Greenberg Traurig team led by shareholder Roland Garcia, which secured a win for Albert “Ted” Powers and his entity Allied Ports in the first jury trial in the newly created Texas Business Court. After an eight-day trial and less than five hours of deliberation, Houston jurors found last week that Powers' co-investors breached a 2019 agreement guaranteeing him a 20% stake in a proposed deepwater crude oil export terminal near Corpus Christi. Jurors also rejected counterclaims against Powers and awarded more than $2.4 million in attorney fees. My Law.com colleague Laura Lorek reported that, with the Business Court lacking a designated courtroom, the trial took part in five venues, including a mid-trial change-in-plans after an overnight pipe leak in one venue. The trial team included Greenberg shareholder Cara Mittleman Kelly and associate Steven Higginbotham, along with Jake McClellan of Beck Redden. The team representing Powers included Greenberg shareholders Elizabeth "Heidi" Bloch, Paul Kerlin and Jennifer Tomsen, of counsels Stephen Edmundson and Sarah-Michelle Stearns and associates Emily Nasir, Christian Rice and Sydney Sgovio, along with the late Alistair Dawson of Beck Redden with colleagues Mary Kate Raffetto and Madeline Gay.
An appellate team at Latham & Watkins helped the North American Concert Promoters Association—an industry group that represents most of the live concert promotion industry in the U.S., including Live Nation and AEG Presents—revive litigation over the royalty rate owed to Broadcast Music Inc., one of the nation’s largest performing rights management organizations. The Second Circuit this week tossed out a lower court decision setting the rate at .5% of NACPA gross revenues for 2018 to 2022, finding, among other things, that it was based on an “unprecedented departure from the industry-standard definition of ‘gross revenue’” without justification. The Latham team representing NACPA was led by Andrew Gass, who argued the appeal, partners Joe Wetzel, Samir Deger-Sen, Jennifer Giordano and Sy Damle, counsel Molly Barron and associates Leah Wisser, Blake Stafford and Nicolas Luongo, along with co-counsel at Weil, Gotshal & Manges including Benjamin Marks and Sarah Sternlieb.
A team a Gibson, Dunn & Crutcher led by Harris Mufson secured an injunction for insurance client Marsh against U.K. broker Howden and seven former Marsh managers and account executives based in Florida who left to launch Howden’s Sunshine State operations. According to court filings, Marsh has seen 160 March employees and more than 80 clients move to Howden as part of a mass hire launched last year. U.S. District Judge Jennifer Rochon in Manhattan held this week that Marsh was likely to succeed on its breach-of-contract claims against the former employees and its tortious interference claims against Howden. Rouchon barred further solicitation of Marsh employees and clients, or misuse of confidential Marsh information, which she ordered to be returned. The judge, however, stopped short of barring Howden and the former employees from servicing former Marsh clients presently at Howden, finding that such a move would deny customers the brokers of their choice, without any evidence that the customers would return to Marsh. The Gibson team representing Marsh includes partner Brian Richman and of counsel Amanda Machin.
Shout-out to a team at Alston & Bird that helped Buffalo Wild Wings fend off a false advertising class action claiming the restaurant and sports bar chain misled consumers about its "boneless chicken wings," which are made from breast meat rather than de-boned wings. U.S. District Judge John Tharp Jr. granted the chain’s motion to dismiss last week, noting that the boneless wings appear on the same “wings” section of BWW menus that includes cauliflower wings. “A reasonable consumer would not think that BWW’s boneless wings were truly deboned chicken wings, reconstituted into some sort of Franken-wing,” Tharp wrote. The Alston & Bird team on the matter includes partner Jason Rosenberg, senior associate Sarah Parker and partners Alan Pryor and Drew Phillips.
Sticking with food fights in the Northern District of Illinois for a moment, shout-out to a DLA Piper team that helped Blue Diamond Growers fend off class certification in a case claiming the California almond growing cooperative misled consumers in Illinois to think the flavor of its “Smokehouse Almonds” came from hardwood smoke rather than seasoning. U.S. District Judge Jorge Alonso in Chicago held this week that the lead plaintiff, who gave deposition testimony that she continued buying the almonds for more than a year after learning they were seasoned and not smoked, was inadequate to serve as class representative. The judge held the plaintiff couldn’t show proximate cause for deceptive advertising under the Illinois Consumer Fraud and Deceptive Business Practices Act. The DLA team on the matter includes Colleen Carey Gulliver, Stefanie Fogel, Margaret Craig, Yan Grinblat, Rachael Kessler, Jason Kornmehl, Bradley Jennings and Madeline Barrett.
Shout-out to a team at Davis Polk & Wardwell that helped Bitcoin miner IREN beat back a securities class action. Plaintiffs claimed the company misled investors in the run-up to its October 2021 initial public offering about its financing arrangements, loan liabilities and risks that special purpose vehicles used to finance its mining equipment could default. Two SPVs did in fact collapse after the value of Bitcoin tanked shortly after the company’s IPO. But U.S. District Judge Esther Salas in New Jersey held last week the challenged statements were forward‑looking and came alongside detailed cautionary language. The judge also held plaintiffs failed to show that any purported omissions rendered the targeted statements misleading. The Davis Polk team included Ted Polubinski, who argued the motion, partner Mari Grace, counsel Vincent Barredo and David Toscano and associates Paulina Perlin and Nerenda Atako.
Shout-out to a team at Latham that helped Apple Inc. and two of its largest iPhone retailers, Walmart and Best Buy, fend off the first attempt to apply a 1984 Washington state law aimed at wired telephones to modern smartphones. U.S. District Judge Benjamin Settle in Tacoma this week granted the defendant’s motion to dismiss, finding that iPhones qualify as “radio equipment” under Washington’s Telephone Buyers' Protection Act—meaning the companies do not have to make warranty and repair disclosures at the time of sale required of sellers of telephone handsets or keysets. The Latham team included partners Melanie Blunschi, Nicole Valco and Nathan Sandals and associates Aamir Virani and Samantha Kaplan.
Shout-out to an appellate team at Manatt, Phelps & Phillips that helped former Brooklyn Nets dancer Megan Roup and her digital exercise training platform, The Sculpt Society, uphold a copyright win in a lawsuit brought by celebrity fitness guru Tracy Anderson. The Ninth Circuit last week held that the routines in the DVDs produced by Anderson’s company, Tracy Anderson Mind and Body, are not choreographic works protected by the Copyright Act, upholding a summary judgment win for Roup. The Manatt team representing Roup included Nathaniel Bach, who argued the appeal, Sarah Moses and Andrea Gonzalez.
Shout-out to Shon Morgan and Derek Shaffer of Quinn Emanuel Urquhart & Sullivan and Chris Hilton of Stone Hilton, who helped X Corp. and xAI Corp. secure a defense win in an early test of the new federal revenge porn statute. U.S. District Judge Chief Judge Reed O’Connor in Forth Worth, Texas, dismissed a proposed class action brought on behalf of a John Doe who sued the companies after images taken of him taken from OnlyFans and studio-based pornography productions were uploaded onto X without his consent. Reed held that the images in question were produced “freely and voluntarily” with the plaintiff’s consent for commercial purposes—not by fraud or misrepresentation—and that the companies could not be held liable under the new statute, which carries statutory damages of $150,000 per violation.
Feb 27
Deal Summary
