Judge Shira A. Scheindlin (Former) U. S. District Court, Southern District of New York
Arbitrator, Mediator, Special Discovery Master
Former United States District Court Judge Shira A. Scheindlin serves as an arbitrator, mediator and special master. She also conducts neutral evaluations, mock trials and arguments as well as internal investigations. Since leaving the bench in May of 2016 she has conducted many mediations and arbitrations and has handled a number of mock trials and arguments. She is also a member of her law firm’s Internal Investigations Unit, formed to help companies and organizations respond to suspected sexual misconduct.
Judge Scheindlin, who was appointed to the bench in 1994 by President Bill Clinton, has presided over numerous criminal and civil cases during her 22-year tenure with the Southern District of New York. Among many important cases, her opinions in electronic case management are recognized as case law landmarks, and she is the co-author of the first casebook on electronic discovery. Judge Scheindlin previously served as an Assistant United States Attorney for the Eastern District of New York, a Magistrate Judge in the Eastern District of New York and General Counsel for the New York City Department of Investigation.
Judge Scheindlin is a frequently published author and lecturer. She is currently an adjunct professor at NYU Law School and has also held that position at Cardozo and Brooklyn Law Schools. She is a member of the College of Commercial Arbitrators (CCA) and the CPR Panel, where she serves as Co-Chair of the Diversity Task Force. She is also a member of the American Arbitration Association (AAA) and the International Centre for Dispute Resolution (ICDR). She is the Chair of the Federal Courts Subcommittee of the ABA’s Standing Committee on the American Judicial System, the former Chair of the Commercial and Federal Litigation Section of the New York State Bar Association and the Co-Chair of the Section’s Task Force on Women’s Initiatives. She is or has been a member of various committees of the American Law Institute, the New York City Bar Association, the New York County Lawyers’ Association, the Federal Bar Council and the New York Inn of Court. She also served for seven years on the Advisory Committee on Civil Rules of the Judicial Conference of the United States. She now serves on the Board of Directors of the Lawyers Committee for Civil Rights Under Law, the American Constitution Society, the Bronx Defenders and the Justice Resource Center.
HONORS & AWARDS
- David G. Trager Award, Eastern District U.S. Attorney’s Office, 2016
- Stanley Fuld Award for Contributions to Commercial Litigation, New York State Bar Association, 2014
- Jurist of the Year, New York Criminal Bar Association, 2014
- Judicial Recognition Award, National Association of Criminal Defense Lawyers, 2008
- William Nelson Cromwell Award for Outstanding Public Service, New York County Lawyers’ Association, 2007
- Edward Weinfeld Award for Distinguished Contributions to the Administration of Justice, New York County Lawyers’ Association, 2005
- William J. Brennan Award, New York State Bar Association, 2003
- Chair, Federal Courts Subcommittee of the Standing Committee on the American Judicial System, American Bar Association
- Member, Advisory Council, Cornell Law School
- Member, New York State Bar Association
- Member, Federal Bar Council
- Member, New York County Lawyers’ Association
- Member, Council on Judicial Administration, Association of the Bar of the City of New York
- Board of Directors, Justice Resource Center (Mentor)
- President’s Council, Good Shepherd Services
- Judicial Advisory Board, The Sedona Conference
- Board of Directors (Executive Committee), Lawyers Committee for Civil Rights Under Law
- Board of Directors, American Constitution Society
- Board of Directors, Bronx Defenders
SPEECHES & EVENTS
Judge Scheindlin is a frequent lecturer at law schools, bar associations and professional associations. Below is a select list of some presentations. She speaks on many topics including: complex civil litigation, class actions, discovery of electronic data, ADR, women in the law, the Sentencing Guidelines, impact litigation, race and policing and the War on Terrorism.
- American Bar Association
- Columbia University Law School
- Cornell Law School
- Federal Judicial Center
- Fordham Law School
- Georgetown Law School
- New York State Bar Association
- Practising Law Institute
- Princeton University
- Stanford Law School
- UCLA School of Law
- University of Chicago Law School
- University of Pennsylvania School of Law
- Yale Law School
- Co-author, “Electronic Discovery and Digital Evidence in a Nutshell,” West Academic Publishing, 2009; Second Edition, 2016
- Co-author, “Electronic Discovery and Digital Evidence, Cases and Materials,” American Casebook Series, West Academic Publishing, 2008; Second Edition, 2012; Third Edition, 2016
- “Random Thoughts of a Federal District Judge, Fourth Annual Institute for Investor Protection Conference: The New Landscape of Securities Fraud Class Actions,” Loyola University Chicago Law Journal , Spring 2015, Vol. 46, No. 3
- “Big Data and Privacy: Finding the Balance,” New York Law Journal, February 10, 2014
- Co-author, “Criminal Law Catches Up: New ESI Guidelines Issued,” New York Law Journal, February 29, 2012
- “The Future of Litigation,” New York Law Journal, February 5, 2010
- Co-author, “Sanctions in Electronic Discovery Cases: Views from the Judges,” 78 Fordham L. Rev. (2009)
ADMITTED TO PRACTICE
- New York
- U.S. Supreme Court
- J.D., cum laude, Cornell Law School, 1975
- M.A., Columbia University, 1969
- B.A., University of Michigan, 1967
Representative Decisions of Judge Shira A. Scheindlin (Ret.) while serving as a United States District Judge on the United States District Court for the Southern District of New York from 1994-2016
MeehanCombs Glob. Credit Opportunities Funds, LP v. Caesars Entm’t Corp., 80 F. Supp. 3d 507, 509 (S.D.N.Y. 2015) (“Caesars I”)
BOKF, N.A. v. Caesars Entm’t Corp., No. 15 Civ. 1561, 2015 WL 5076785 (S.D.N.Y. Aug. 27, 2015) (“Caesars II”)
Trustees and holders of corporate notes issued by bankrupt subsidiary brought actions seeking over seven billion dollars against parent guarantor of notes alleging that the purported pre-bankruptcy removal of the guarantees violated the Trust Indenture Act (TIA) and breached the governing indentures as well as the implied covenant of good faith and fair dealing. In Caesars I, the District Court, Scheindlin J., denied Caesars’ motion to dismiss the TIA claims, becoming just the third court to hold that section 316(b) of the TIA protects a noteholder’s practical ability — in addition to its legal right — to receive payment when due. In Caesars II, the Court denied plaintiffs’ motion for partial summary judgment and set forth the requirements for demonstrating an impairment under section 316(b) of the TIA.
Carpenters Pension Trust Fund of St. Louis v. Barclays PLC, 310 F.R.D. 69, 73 (S.D.N.Y. 2015)
Strougo v. Barclays PLC, No. 14 Civ. 5797, 2016 WL 413108 (S.D.N.Y. Feb. 16, 2016)
Plaintiffs in Carpenters alleged that Barclays understated the bank’s London Interbank Offered Rate or LIBOR submissions during the financial crisis in violation of the Securities Exchange Act of 1934. Plaintiffs in Strougo, also a securities fraud case against Barclays, allege that Barclays assured investors of the transparency and safety of its “dark pool” alternative trading system while at the same time allowing high frequency traders to take advantage of other dark pool clients. In separate decisions issued six months apart from each other, the District Court, Scheindlin J., granted plaintiffs’ motion for class certification. The Court held that plaintiffs were entitled to rely on the fraud-on-the-market presumption of reliance set forth in Basic v. Levinson, satisfying Rule 23’s predominance requirement. Relying on Halliburton Co. v. Erica P. John, in a matter of first impression in the Circuit, the Court held that plaintiffs had established market efficiency under Basic even without direct evidence of a cause and effect relationship between unexpected news events and the price of Barclays ADS. This was because the indirect evidence of market efficiency — such as that Barclays ADS trades in high volumes on the New York Stock Exchange and is followed by a large number of analysts — was sufficient to establish market efficiency and defendants’ evidence did not indicate that the market was inefficient. In addition, defendants failed to rebut the presumption by presenting evidence of lack of price impact. While stock prices did not move on the dates of the misrepresentations, this was consistent with the price maintenance theory of market efficiency under which a material misstatement can impact a stock’s value by improperly maintaining the existing stock price.
Laumann v. NHL, 907 F. Supp. 2d 465 (S.D.N.Y. 2012) (“Laumann I”)
Laumann v. NHL, 989 F. Supp. 2d 329 (S.D.N.Y. 2013) (“Laumann II”)
Laumann v. NHL, 56 F. Supp. 3d 280 (S.D.N.Y.), motion to certify appeal denied 120 F. Supp. 3d 334 (S.D.N.Y. 2014) (“Laumann III”)
Laumann v. NHL, 117 F. Supp. 3d 299, 303 (S.D.N.Y. 2015) (“Laumann IV”)
Laumann v. NHL, 105 F. Supp. 3d 384 (S.D.N.Y. 2015) (“Laumann V”)
Subscribers to television and Internet services that included live hockey and baseball telecasts brought consolidated antitrust claims against professional hockey and baseball leagues, various clubs within leagues, regional sports networks (RSNs) that televised games, and cable television and satellite service providers that were multichannel video programming distributors (MVPDs). In Laumann I, the District Court, Scheindlin J., denied defendants’ motion to dismiss. In Laumann II, the MVPD defendants moved to compel arbitration. The Court held that the threshold question of arbitrability of the Internet subscribers’ claims would be referred to an arbitrator, but the Court would determine arbitrability of direct television subscriber’s claims. Relying on Toolson v. New York Yankees, Inc., the Court held in Laumann III that baseball’s antitrust exemption did not apply to territorial broadcasting restrictions because sports broadcasting agreements were not central to the business of baseball. In addition, the Court held that the rule of reason, rather than per se approach, was the appropriate standard for testing whether restrictions restrained trade. This was because teams within each league were necessarily interdependent, and pro-competitive benefit of challenged scheme was not so obvious that challenge to those restrictions easily could be resolved in favor of leagues. Finally, in Laumann IV and Laumann V, the Court addressed defendants’ motion to exclude plaintiffs’ expert under Daubert, and plaintiffs’ motion for class certification. In Laumann IV, the Court held that the portion of plaintiffs’ expert’s damages model which forecast consumer demand if territorial restrictions were removed was unreliable, but the portion of damages model which forecast that unbundling would increase choices and tend to have a downward effect on prices was admissible. In Laumann V, the Court held that as a result of its ruling in Laumann IV, plaintiffs could not prove their damages case on a class-wide basis and the Court could not certify a class under Rule 23(b)(3). However, the Court certified an injunctive class under Rule 23(b)(2), holding that even if some class members would prefer to buy out-of-market packages despite availability of à la carte channels, every class member had suffered an antitrust injury — the à la carte option would have been available to each class member absent territorial restraints, and some class members also suffered the additional injury of having to pay too much for content they wanted.
SEC v. Wyly, 950 F. Supp. 2d 547 (S.D.N.Y. 2013) (“Wyly I”)
SEC v. Wyly, No. 10 Civ. 5760, 2014 WL 3401105 (S.D.N.Y. July 10, 2014) (“Wyly II”)
SEC v. Wyly, No. 10 Civ. 5760, 2014 WL 3739415 (S.D.N.Y. July 29, 2014) (“Wyly III”)
SEC v. Wyly, No. 10 Civ. 5760, 2014 WL 4792229 (S.D.N.Y. Sept. 24, 2014) (“Wyly IV”)
The SEC brought a civil enforcement action against Samuel and Charles Wyly, alleging that the brothers engaged in a thirteen year scheme, dating back to 1992, to violate the securities laws by transferring options and stock in companies they controlled to offshore trusts, and continuing to trade in those securities without filing proper disclosures. In Wyly I, the District Court, Scheindlin J., granted defendants’ motion for summary judgment in part, concluding that the SEC’s claims for civil penalties are largely time-barred by the “catch-all” statute of limitations period in 28 U.S.C. § 2462. Applying the Supreme Court’s unanimous decision in Gabelli v. SEC, the Court concluded that “acts of concealment, which represented at most an unwillingness to divulge the allegedly wrongful activity, are not grounds for tolling an SEC enforcement action.” Thus, the SEC could only seek civil penalties for conduct occurring no more than five years before the Wylys signed a tolling agreement in February 2006. After a six week jury trial, the Wylys were found liable for nine securities violation. The tenth claim – insider trading – was tried to the bench because it fell outside the statute of limitations and the SEC could only seek equitable relief. In Wyly II, the Court concluded that the Wylys were not liable for insider trading based on their “inchoate desire” to sell a company they controlled. Finally, in Wyly III and Wyly IV, the Court determined the appropriate remedies for the nine securities violations found by the jury. In Wyly III, the Court ruled that the SEC could not seek disgorgement of all profits made during the thirteen year scheme because the total amount of profit was not reasonably tied to defendants’ violations. In Wyly IV, the Court ruled, in an issue of first impression, that the SEC could seek disgorgement in an amount equivalent to the taxes defendants avoided paying on their offshore trading profits.
Wultz v. Bank of China, 910 F. Supp. 2d 548 (S.D.N.Y. 2012) (“Wultz I”)
Wultz v. Bank of China, 942 F. Supp. 2d 452 (S.D.N.Y. 2013) (“Wultz II”)
Wultz v. Bank of China, 979 F. Supp. 2d 479 (S.D.N.Y. 2013) (“Wultz III”)
An American family brought suit against the Bank of China (“BOC”) pursuant to the Anti-Terrorism Act to recover damages in connection with a 2006 suicide bombing in Tel Aviv, Israel that killed a 16 year old and seriously injured his father. Plaintiffs filed a number of motions to compel BOC to produce certain documents, many of which were located in China and were subject to various Chinese bank secrecy laws. In Wultz I and Wultz II, the District Court, Schendlin J., applied the Supreme Court’s multi-factor comity analysis in Société Nationale Industrielle Aérospatiale v. United States Dist. Ct. for the Southern Dist. of Iowa, 482 U.S. 522 (1987) and ordered the production of many relevant documents despite the applicability of certain Chinese confidentiality laws, including BOC’s communications with state regulators. In Wultz III, the Court concluded that BOC cannot claim attorney-client privilege or work-product protection over documents pre-dating plaintiffs’ demand letter because Chinese law does not recognize either doctrine. The Court also found that U.S. privilege law does not apply to communications with BOC’s in-house counsel about plaintiffs’ case and other relevant issues because there are “cognizable distinctions” between a lawyer and in-house counsel in China, as Chinese in-house counsel are not required to have legal credentials.
GAMCO Investors, Inc., v. Vivendi, S.A., 927 F. Supp. 2d 88 (S.D.N.Y. 2013) (“Vivendi I”)
In re Vivendi Universal, S.A. Sec. Litig., 123 F. Supp. 3d 424 (S.D.N.Y. 2015) (“Vivendi II”)
Investors filed a securities fraud class action against Vivendi, a French issuer of American Depositary Shares alleging misstatements and omissions regarding the company’s liquidity after a merger. In Vivendi I, following a bench trial on the issue of reliance, the District Court, Scheindlin, J., held that the defendant successfully rebutted the investors’ presumption of reliance on misstatements by demonstrating that investors would have transacted in the securities notwithstanding any inflation in market price caused by the alleged fraud, that the investors’ decision to buy was based on analysts’ determinations that the shares traded at a substantial discount to their private market value, and any that alleged liquidity crisis was irrelevant to investors’ decisions, except to the extent that each corrective disclosure made shares a more attractive investment by increasing the spread between the shares’ private market value and their market price. In Vivendi II, the Court held that defendant rebutted the Basic presumption by showing that investor would have transacted in securities notwithstanding any inflation in their market price caused by fraud. Investor made the decision to purchase corporation’s stock based on analysis of the price-value ratio (PVR), investor began to purchase stock after corporation had made four of nine corrective disclosures relating to corporation’s liquidity, investor continued to purchase the stock after corporation made further corrective disclosures, and investor’s analyst who was responsible for the purchase of the stock claimed none of the nine corrective disclosures corrected any misunderstanding concerning investor’s view of the value of corporation.
The Pension Comm. of the Univ. of Montreal Pension Plan v. Back of Am. Sec., LLC., 685 F. Supp. 2d 456 (S.D.N.Y. 2010)
Investors brought an action to recover losses stemming from liquidation of two hedge funds in which they held shares, alleging claims under federal securities laws and New York law against the fund administrator. Administrator moved for sanctions, alleging that each plaintiff failed to preserve and produce documents — including those stored electronically — and submitted false and misleading declarations regarding their document collection and preservation efforts. The District Court, Scheindlin, J., held that (1) the investors’ duty to preserve electronic records was triggered by filing the complaint with British Virgin Islands’ Financial Services Commission; (2) the appropriate sanction for investors whose actions were grossly negligent was an instruction permitting the jury to presume that missing or destroyed documents would have been both relevant and prejudicial; and (3) both negligent and grossly negligent investors were subject to monetary sanctions.
In re: Initial Public Offering Sec. Litig., No. 21 MC 92, 671 F. Supp. 2d. 467, 2009 WL 3397238 (S.D.N.Y. Oct. 5, 2009)
Investors brought suits against underwriters of initial public offerings (IPO), securities issuers and officers of issuers, alleging a scheme to fraudulently drive up the price of stock in the issuing companies in the immediate aftermarket of their IPOs. The District Court, Scheindlin, J. granted plaintiffs’ motion for an Order of Final Approval of the Settlement, Plan of Allocation, and Class Certification. Scheindlin also granted the Plaintiffs’ Executive Committee’s (the “Committee”) motion for Attorneys’ Fees and Reimbursement of Expenses and Private Securities Litigation Reform Act (“PSLRA”) Awards, but not for the amount requested. The Committee requested that the Court award one-third of the Total Designation Amount in each Action and expenses of approximately fifty million dollars in connection with the prosecution of the Actions. Scheindlin awarded Plaintiffs’ counsel fees of one-third of the net settlement fund and reimbursement of expenses in the total amount of $46,941,556.96. The Committee also requested the payment of “reasonable” class representative awards totaling no more than four million dollars for lead plaintiffs, proposed class representatives, and/or proposed settlement class representatives. Scheindlin granted PSLRA awards for class representatives in the total amount of $1,303,593.05.
Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., 08 Civ. 7508, 615 F. Supp. 2d 115, (S.D.N.Y. 2009)
Two institutional investors (the “Investors”) brought a class action to recover losses stemming from the liquidation of notes issued by a structured investment vehicle (“SIV”), and asserted claims of common law fraud, negligent misrepresentation, negligence, breach of fiduciary duty, breach of contract and related contract claims, unjust enrichment, and aiding and abetting against the arranger of the SIV, rating agencies, and the United States agent for the SIV’s rated notes. Defendants moved to dismiss. The District Court, Scheindlin, J., held that (1) a foreign institutional investor was not a foreign state outside the jurisdiction of the courts of the United States; (2) the Investors stated a claim for fraud against the SIV arranger and rating agencies; (3) the Investors’ claims for negligence, negligent misrepresentation, breach of fiduciary duty, unjust enrichment, and aiding and abetting were preempted by New York’s Martin Act; (4) investors’ claims for tortious interference with a contract were not preempted by New York’s Martin Act; (5) investors failed to state a claim for breach of contract; (6) investors failed to state a third-party-beneficiary claim; (7) investors failed to state a claim against the agent for aiding and abetting fraud; and (8) the First Amendment did not protect the rating agencies from liability arising out of their issuance of ratings and reports because their ratings and reports were not disseminated widely enough to be considered matters of public interest.
Cala Rosa Marine Co. Ltd. v. Sucres Et Deneres Group, 613 F. Supp. 2d 426 (S.D.N.Y. 2009)
Vessel owner (“Plaintiff”) brought an action against Charterer under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards seeking maritime attachment of electronic funds transfers (“EFT”). Plaintiff requested that the Attachment Order contain two special provisions, (1) for any process served on a garnishee to be deemed effective and continuous service throughout the remainder of the day to avoid the necessity of physically serving the garnishees/banks daily and repetitively, and (2) that the Court appoint a plaintiff-retained special process server who would be authorized to serve the Attachment Order. Although every court in the district to address the issue held it was permissible for a court to issue an order directing that service be deemed continuous for a day, the District Court, Scheindlin, J., held that Plaintiff was not entitled to have process deemed continuously served and declined to appoint a special process server. The Second Circuit heavily relied on Scheindlin’s reasoning when deciding Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., Nos. 08 Civ. 3477, 08 Civ. 3758, – F.3d. –, 2009 WL 3319675 (2d Cir. Oct. 16, 2009), which held that EFTs being processed by an intermediary bank in New York were not subject to maritime attachment.
U.S. v. Kozeny, 493 F. Supp. 2d 693 (S.D.N.Y. 2007), aff’d, 541 F.3d 166 (2d Cir. 2008)
Defendants, who were indicted for conspiring to bribe government officials in the Republic of Azerbaijan, moved to dismiss various counts of the indictment. The District Court, Scheindlin, J., held that (1) as a matter of first impression in the Circuit, the statute providing for suspension of the running of the statute of limitations in order to permit the government to obtain foreign evidence required that tolling begin upon issuance of a court order and that such a toll must be ordered before the expiration of the limitations period, and (2) the government’s motion to suspend the running of the statute of limitations was insufficient to warrant tolling because the government did not move to suspend the running of the statute of limitations until after it had expired; and, on reconsideration, held that (3) the indictment was timely as to three counts which alleged overt acts occurring within the statute of limitations.
In re: Enron Corp. 379 B.R. 425 (S.D.N.Y. 2007)
Debtor filed an adversary proceeding against transferee of Creditor’s claims (“Transferee”), seeking equitable subordination of Transferee’s claims based solely on the alleged misconduct of the transferor of the claims, and disallowance of Transferee’s claims based solely on the allegation that a transferor received and failed to repay an avoidable transfer. The United States Bankruptcy Court of the Southern District of New York denied Transferee’s motion to dismiss, 2005 WL 3873893, and Transferee appealed. The District Court, Scheindlin, J., held that, as a matter of first impression, Transferee could be subject to equitable subordination and disallowance based solely on the conduct of the transferor if the claims were transferred to Transferee by way of an assignment, but not by sale.
In re: Adelphia Comm’ns Corp., 361 B.R. 337 (S.D.N.Y. 2007) (“Adelphia I”)
In re: Adelphia Comm’ns Corp., 367 B.R. 84 (S.D.N.Y. 2007) (“Adelphia II”)
Debtors in jointly administered Chapter 11 cases sought confirmation of the plan of reorganization (the “Plan”). The United States Bankruptcy Court for the Southern District of New York confirmed the Plan, 368 B.R. 140, 2007 WL 866643. In Adelphia I, Creditors appealed and moved for a stay pending appeal of the Bankruptcy Court’s order confirming the Plan. The District Court, Scheindlin, J., held that (1) Creditors would suffer irreparable harm if the stay was not granted; (2) Creditors had substantial likelihood of success on the merits of their claims; and (3) Creditors had to post a $1.3 billion bond. Creditors failed to post the bond, and the stay was vacated. In Adelphia II, the Creditors sought to pursue their appeal even though the Plan had become effective. The District Court, Scheindlin, J., held that (1) judicial estoppel precluded Creditors from asserting that their appeal from the confirmation order was not equitably moot, and (2) Creditors failed to rebut the presumption of equitable mootness arising from substantial consummation of the Plan.
Mullins v. City of New York, 523 F. Supp. 2d 339 (S.D.N.Y. 2007)
Police sergeants brought an action against the City and its police department to recover overtime compensation to which they were allegedly entitled under the Fair Labor Standards Act (“FLSA”), but for which they had not been paid. Sergeants moved for partial summary judgment on the issue of defendants’ liability. The District Court, Scheindlin, J., held that (1) the sergeants were exempt from FLSA as executives for the period governed by the “short test,” and (2) genuine issues of material fact existed as to whether police sergeants had the authority to hire or fire other employees or whether their suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees were given particular weight, precluding summary judgment in favor of sergeants on issue of whether they were exempt as executives under the test applicable to the period following August 23, 2004.
In re: Methyl Tertiary Butyl Ether Products Liability Litigation, 379 F. Supp. 2d 348 (S.D.N.Y. 2005).
In consolidated multi-district litigation, numerous municipalities and other water providers sought relief from contamination or threatened contamination of groundwater from various gasoline producers’ use of the gasoline additive methyl tertiary butyl ether (MTBE). The producers moved to dismiss several complaints. The District Court, Scheindlin, J., held that (1) Connecticut, Indiana, Vermont, Virginia, West Virginia and Kansas plaintiffs could pursue their claims under a commingled product theory of market share liability (whereby, when a plaintiff can prove that certain gaseous or liquid products from various suppliers were present in a completely commingled or blended state at the time and place that the risk of harm occurred, and that the commingled product caused a single indivisible injury, then each of those products should be deemed to have caused harm), though the Connecticut plaintiffs’ nuisance and trespass claims were preempted by the Connecticut Products Liability Act; (2) Florida, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania and Louisiana plaintiffs could pursue their claims under market share liability theory; (3) Illinois, Iowa, and New York plaintiffs could pursue their claims under concert of action and conspiracy theories.
The New York Times Co. v. United States Dep’t of Labor, 340 F. Supp. 2d 394 (S.D.N.Y. 2004).
Newspaper brought action pursuant to the Freedom of Information Act (FOIA) against the United States Department of Labor, seeking to compel the Occupational Safety and Health Administration (OSHA) to disclose data it collected regarding injury and illness rates for 13,000 work sites. The DOL moved to dismiss, and, alternatively, for summary judgment; the newspaper cross-moved for summary judgment. The District Court, Scheindlin, J., held that (1) the newspaper exhausted its administrative remedies following the DOL’s initial denial of its request, as required under FOIA to obtain judicial review, and (2) the information that the newspaper sought was not confidential information within the meaning of a FOIA exemption for “trade secrets and commercial information obtained from a person and privileged or confidential.” Accordingly, the DOL was compelled to disclose the requested information.
Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003) (“Zubulake I”)
Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003) (“Zubulake III”)
Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003) (“Zubulake IV”)
Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) (“Zubulake V”)
Scheindlin issued several opinions regarding the discovery of electronic information. In Zubulake I, an employment discrimination lawsuit, Scheindlin introduced a new test for determining which party should bear the cost of electronic discovery, and what sort of discovery is susceptible to this cost-shifting analysis. In Zubulake III, Scheindlin applied the test she had previously created and split the costs of restoring certain electronic documents 75%-25% between defendants and plaintiff, respectively. But she also held that attorney time for reviewing electronic data should never be shifted. Finally, Zubulake IV, Scheindlin clarified the standards governing a litigantus duty to preserve relevant documents. In the first opinion to comprehensively address the prevailing standard in the electronic discovery context, Scheindlin held that litigants must retain all relevant documents once litigation is anticipated. As a general rule, that “litigation hold”does not apply to backup tapes, which may continue to be recycled on the schedule set forth in the company’s policy. “However, it does make sense to create one exception to this general rule. If a company can identify where particular employee documents are stored on backup tapes, then the tapes storing the documents of ‘key players’ to the existing or threatened litigation should be preserved if the information contained on those tapes is not otherwise available. This exception applies to all backup tapes.” In the final decision pertaining to electronic discovery in this employment discrimination lawsuit, plaintiff moved for sanctions for failure to produce relevant material and for tardy production of that material. The District Court, Scheindlin, J., held that (1) as sanction for willful destruction of relevant e-mails by defendant’s employees in defiance of explicit instructions by counsel not to do so, jury would be given an adverse inference instruction with respect to those e-mails, and (2) as sanction for tardy production of relevant e-mails, defendant would be required to pay the costs of any depositions or re-depositions required by the late production, and to pay the costs of plaintiff’s motion for sanctions. (Plaintiff subsequently prevailed at trial.)
In re: Initial Public Offering Securities Litigation, 241 F. Supp. 2d 281 (S.D.N.Y. 2003)
Investors brought suits against underwriters of initial public offerings (IPO), securities issuers and officers of issuers, alleging scheme to fraudulently driving up price of stock of companies in immediate aftermarket of their initial public offerings (IPOs). Suits were consolidated. On defendants’ motions to dismiss, the District Court, Scheindlin, J., held that: (1) claims based on registration statements were properly pled; (2) investors who sold their shares above offering price were not damaged by registration statement; (3) Rule 10b-5 claims for material misstatements were properly pled; (4) complaint failed to plead that some issuers and individual defendants acted with required intent to defraud; (5) complaint pled market manipulation claim against allocating underwriter; (6) abrogating Independent Energy, 154 F. Supp. 2d 741, and Gabriel Capital, 122 F. Supp. 2d 407, control person liability under Securities Exchange Act does not require proof of scienter; and (7) complaint adequately pled control person liability.
In re Ski Train Fire in Kaprun, Austria on November 11, 2000, 220 F.R.D. 195 (S.D.N.Y. 2003)
Scheindlin certified the first-ever “opt-in” plaintiff class outside of the Fair Labor Standards Act context, in a mass tort action. Plaintiffs, the heirs of eight Americans who died in a ski train fire in Austria, sought an opt-in class because class membership entailed a waiver of certain rights under Austrian law. Holding that “it would be unfair to presumptively include members in a class for which membership depends upon the waiver of a right,” Scheindlin ruled that certifying an opt-in class, although not specifically permitted under the Rules of Civil Procedure, was within her discretion as a matter of equity.