Motion to Dismiss

News & Analysis as of

New York Appellate Division Affirms Denial of Merrill Lynch’s Motion to Dismiss Repurchase Claims

On June 17, New York’s Appellate Division, First Department intermediate appellate court affirmed the denial of Merrill Lynch’s motion to dismiss a repurchase suit brought by two RMBS Trusts. The plaintiff-trusts allege that...more

EMC Obtains Partial Dismissal of Repurchase Action

On May 29, Justice Eileen Bransten of the New York County Supreme Court denied in part and granted in part defendants’ motion to dismiss a loan repurchase lawsuit brought at the direction of certain certificate holders of...more

UBS Motion to Dismiss RMBS Suit Granted in Part

On June 10, Judge Denise Cote of the U.S. District Court for the Southern District of New York granted in part and denied in part UBS’s motion to dismiss a lawsuit filed against it by the National Credit Union Administration,...more

Third Circuit Adopts Less Demanding FCA Pleading Standard

Last week, the Third Circuit reversed a New Jersey district court’s decision to dismiss a False Claims Act (FCA) qui tam law suit, holding that the court applied an overly demanding pleading standard to relator Thomas...more

Bankruptcy Court Dismisses Class Action DFR Complaint Involving Airline Merger

One deliberately ironic facet of the 2004 film Howard Hughes bio-pic The Aviator (the one with Leonardo DiCaprio) is the fact that the airlines fighting for world dominance in the 1940s were Howard Hughes’ TWA and Juan...more

Copyright Antitrust Claims Against Textbook Publishers Dismissed in Longstanding Gray Market Copyright Case

It is no secret that college textbooks are expensive, and the average student has little recourse when a professor assigns specific books and editions. Stuck between a rock and a hard place, over the years students have...more

New York Court Rejects Insurer’s Motion to Dismiss Its Own Lawsuit

In its recent decision in Cincinnati Ins. Co. v. Roy’s Plumbing, Inc., 2014 U.S. Dist. LEXIS 73464 (W.D.N.Y. May 29, 2014), the United States District Court for the Western District of New York considered the implications of...more

FTC v. Actavis on Remand: A New Chapter

District Court refuses to grant renewed motion to dismiss based on Noerr-Pennington doctrine. In re AndroGel Antitrust Litigation (No. II), MDL No. 2084 (re Federal Trade Commission v. Actavis, Inc., No. 1:09-CV-955-TWT)...more

Nevada Federal District Court Stays Discovery Based On Lack Of Jurisdiction Over Foreign Website Operator

On May 15, the U.S. District Court for the District of Nevada granted a motion to stay discovery pending adjudication of the motion to dismiss on the grounds that it likely lacked personal and specific jurisdiction over the...more

Plaintiff Has No Duty to Identify a Specific Law or Rule Violation Under New York’s Whistleblower Law to Survive a Motion to...

On May 13, 2014, the New York State Court of Appeals ruled that, under Labor Law §740(2), also known as the “whistleblower statute,” the complaint need not identify a specific law or rule allegedly violated by the employer to...more

Claims Against Loan Servicer And Force-Placed Insurer Alleging Commission And Reinsurance Kickback Scheme Survive Dismissal

A putative class action involving force-placed home insurance and an alleged scheme for mortgage lenders to obtain kickbacks in the form of commissions, reinsurance premium, and other fees, has survived a motion to dismiss. ...more

LinkedIn Consumer Class Action Survives Motion to Dismiss

It appears that California’s consumer-friendly Unfair Competition Law, Cal. Bus & Prof. Code §17200 et seq. (“UCL”), encompasses claims made regarding website privacy policies. In In re LinkedIn User Privacy Litigation, No....more

Fast Five: Rhode Island Appellate Practice - April 2014 (2)

1. NOTICES OF APPEAL MUST BE FILED WITHIN 20 DAYS. As a general matter, a notice of appeal must be filed within 20 days of “the date of the entry of the judgment, order, or decree appealed from.” R.I. Sup. Ct. R. App....more

Motion to Dismiss Granted Where Patent Infringement Complaint Alleged Joint Infringement But Failed to Allege Direction and...

Plaintiff Nu Flow Technologies (2000) Inc. ("Nu Flow) filed a patent infringement action against Defendant A.O. Reed & Company ("A.O. Reed") and ten Doe defendants based on two patents U.S. Patent No. 7,849,883 B2 (the '883...more

Declaratory Judgment Action Dismissed for Lack of Personal Jurisdiction Where Contacts in Jurisdiction Occurred Before, and Were...

Digital Ally, Inc. ("Digital Ally") filed a declaratory judgment action pertaining to patent infringement against Utility Associates, Inc. ("Utility"). Utility filed a motion to dismiss for lack of subject matter and personal...more

SDNY Certifies Interlocutory Appeal In Lender-Placed Insurance Dispute

On April 3, the U.S. District Court for the Southern District of New York certified an interlocutory appeal of an order denying a motion to dismiss filed by a group of insurers facing class allegations of unlawful...more

Appropriate Cautionary Language Leads to Dismissal of Investor’s Securities Fraud Suit

A California district court recently dismissed Mellanox Technologies Ltd. investors’ claims that the company made false statements about both its prominence in the interconnect market and its revenue and growth prospects. The...more

Ineffective Motions to Dismiss Erode the Power of the Reform Act

In 1995, public companies and their directors and officers received one of the greatest statutory gifts in the history of American corporate law: the Private Securities Litigation Reform Act. The Reform Act established...more

Appellate Court Notes - Week of March 19

AC35167 - Perugini v. Giuliano: Pro se husband sued his ex-wife’s lawyers claiming violation of the RPC and intentional infliction of emotional distress for failure to disclose the attorney’s past representation of the...more

Unsuccessful Summary Judgment Motion to Dismiss Non-Earner Benefits

The Court has rendered another decision in relation to a Summary Judgment Motion brought by an Insurer to dismiss a Plaintiff’s claim for non-earner benefits....more

SEC Prevails In Tenth Circuit

The SEC prevailed in the Tenth Circuit Court of Appeals, securing a reversal of the district court’s order granting a motion to dismiss its complaint. The central issue in the case was if instruments which claimed to be...more

Motion to Dismiss Granted in Part in Repurchase Suit Against BofA, Countrywide

On February 13, Justice Eileen Bransten of the Supreme Court of the State of New York dismissed in part a second amended complaint filed by U.S. Bank as trustee for HarborView Mortgage Loan Trust, Series 2005-10. As in its...more

Possibility Of Future Harm Allows Sony Data Breach Plaintiffs To Survive Motion To Dismiss

Courts Split Over Impact of Supreme Court Decision - The Southern District of California last month let 8 out of 51 claims survive in a putative class action arising out of the 2011 breach of the Sony PlayStation...more

OTK Associates, LLC v. Robert Friedman, et al., C.A. 8447-VCL (Del. Ch. Feb. 5, 2014) (Laster, V.C.)

In this opinion, the Court of Chancery denied in substantial part motions to dismiss claims arising out of a since-abandoned restructuring transaction between Morgans Hotel Group Co. and its largest investor, Yucaipa...more

Judicial Notice of FDA Website Documents Can Be a Powerful Lever in a Medical Device Manufacturer’s Motion to Dismiss

A motion to dismiss can be a powerful tool in the hands of medical device companies to eliminate cases that should be dismissed from the outset on preemption grounds, before engaging in costly discovery. Oftentimes, however,...more

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