LEWIS J. LIMAN, United States District Judge:

Taking the motion to compel at Dkt. No. 224 as a motion to clarify the Court’s Order of September 29, 2022, the Court clarifies that it intended to direct Plaintiff Alvarado to answer all written discovery requests, including interrogatories and requests for admission, without any date limitation (including but not limited to written discovery directed to Mr. Alvarado’s criminal history).

The parties appear to dispute whether Plaintiffs are in compliance with their remaining discovery obligations.

By no later than 48 hours in advance of that conference (i.e., October 25, 2022 at 10:00 a.m.), the parties are directed to submit a joint letter identifying any discovery issues they have been unable to resolve.

The Court will entertain a request to cancel the conference if the parties are able to reach agreement on all remaining discovery issues.

The Court’s Memorandum Opinion and Order [Doc. 204] explained that the parties appeared unable or unwilling to work cooperatively to reach a resolution of even routine issues in this case without the intervention of the Court, unnecessarily taxing the Court’s finite resources.

The Notice does reflect some effort at cooperation, indicating that the parties have all agreed to two mediators – Randy Wulff and Judge Jay Gandhi.

The Notice also states that lead counsel for Broadcom and Brocade is not available to mediate from November 7, 2022, to December 21, 2022, due to a trial.

The Court will not wade into the remaining logistical issues reflected in the Notice, all of which are common to cases of this nature.

The Court is confident that with this extension, the parties will be able to cooperate to resolve the remaining issues in the Notice.

the Parties to this action, their insurers, and counsel to their insurers; counsel retained specifically for this action, including any paralegal, clerical and other assistant employed by such counsel and assigned to this matter; outside vendors or service providers (such as copy-service providers and document-management consultants, graphic production services or other litigation support services) that counsel hire and assign to this matter, including computer service personnel performing duties in relation to a computerized litigation system; any mediator or arbitrator that the Parties engage in this matter or that this Court appoints, provided such person has first executed a Non-Disclosure Agreement in the form annexed as an Exhibit hereto; as to any document, its author, its addressee, and any other person indicated on the face of the document as having received a copy; any witness who counsel for a Party in good faith believes may be called to testify at trial or deposition in this action, provided such person has first executed a Non-Disclosure Agreement in the form annexed as an Exhibit hereto; any person retained by a Party to serve as an expert witness or otherwise provide specialized advice to counsel in connection with this action, provided such person has first executed a Non-Disclosure Agreement in the form annexed as an Exhibit hereto; stenographers engaged to transcribe depositions conducted in this action; and this Court, including any appellate court, and the court reporters and support personnel for the same.

only” in extraordinary circumstances) may at any time prior to the trial of this action serve upon counsel for the receiving Party a written notice stating with particularity the grounds for the request.

Nor does anything contained in this Supplemental Protective Order limit or restrict the rights of any person to use or disclose information or material obtained independently from and not through or pursuant to the Federal Rules of Civil Procedure.

This Court shall retain jurisdiction over all persons subject to this Supplemental Protective Order to the extent necessary to enforce any obligations arising hereunder or to impose sanctions for any contempt thereof.

LEWIS J. LIMAN, United States District Judge: I, _____________________________, acknowledge that I have read and understand the Supplemental Protective Order in this action governing the non-disclosure of those portions of Discovery Material that have been designated as Confidential.

1 The Court granted the motion for a protective order to the extent that it sought to limit the questioning of Mr. Alvarado on his criminal history at deposition.

“[W]hile evidence introduced at trial or in connection with summary judgment enjoys a strong presumption of public access, documents that ‘play only a negligible role in the performance of Article III duties’ are accorded only a low presumption that ‘amounts to little more than a prediction of public access absent a countervailing reason.’ ” Brown, 929 F.3d at 49–50 (quoting Amodeo II, 71 F.3d at 1050).

Here, Plaintiffs claim that Mr. Alvarado has a privacy interest in (1) information related to Mr. Alvarado’s criminal history included in the body of Peloton’s Letter Response to Plaintiffs’ First Motion; (2) an affirmation submitted by a New York Assistant District Attorney that references Mr. Alvarado’s criminal history (Exhibit 3); and (3) a risk assessment prepared at the request of Mr. Alvarado’s counsel in another case (Exhibit 4).

The Court could not prohibit defense counsel from otherwise making the information publicly known—e.g., in response to questions from putative class members.

Plaintiffs point to Mirlis v. Greer to support their contention that the public availability of this information weighs in favor of redaction.

None of the Parties requested that the Court set a Daubert hearing prior to ruling on this Motion.

The Navajo Nation and the State of New Mexico, joined by the Allen and McDaniel Plaintiffs, filed a motion for sanctions against the Federal Parties due their spoliation of evidence.

The Court granted the State of Utah's motion to dismiss its claims as to the Federal Parties, Environmental Restoration and Weston.

The United States Supreme Court has discussed the justification in federal law for shielding Government contractors from liability.

After briefly discussing the FTCA and the DFE, the Supreme Court noted that allowing "state tort suits against contractors would produce the same effect sought to be avoided by the FTCA exemption" and that it makes little sense to insulate the Government against financial liability for the Governments functions, but not when it contracts for those functions.

]”); In re Air Disaster at Ramstein Air Base, Germany, on 8/29/90, 81 F.3d 570, [5]74 (5th Cir. 1996) (“[G]overnment contractor immunity is derived from the Government’s immunity from suit where the performance of a discretionary function is at issue.”); Butters v. Vance Int’l, Inc., 225 F.3d 462, 466 (4th Cir. 2000) (recognizing “well-settled law that contractors and common law agents acting within the scope of their employment for the United States have derivative sovereign immunity”).

Defendants have served a request for production of documents on Mr. Alvarado calling for “[a]ll Documents and Communications Concerning any prior criminal convictions,” Dkt. No. 218-2 at 11; Mr. Alvarado agreed to provide non-privileged, responsive documents reflecting prior criminal convictions in the past ten years, id. at 12.1 Mr. Alvarado answered an interrogatory directed to the identification of crimes with which he has been charged by answering that the only criminal matter to which he has been a party in the past ten years was in connection with a charge of second-degree unlawful surveillance for which he was convicted and sentenced to a term of five years’ probation.

“To judge the adequacy of representation, courts may consider the honesty and trustworthiness of the named plaintiff.” Savino v. Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir. 1998) (citing Kline v. Wolf, 702 F.2d 400, 402–03 (2d Cir. 1983)); cf.

Loan Corp., 337 U.S. 541, 549 (1949) (explaining that, when a representative sues on behalf “of a class comprising all who are similarly situated[,] [t]he interests of all in the redress of the wrongs are taken into his hands, dependent upon his diligence, wisdom and integrity”).

Accordingly, to the extent Plaintiffs seek a protective order in connection with the requests or interrogatories going to Mr. Alvarado’s financial history, the motion is denied.

2 Plaintiffs may also make an application to place under seal documents previously filed by Defendants, including in connection with the instant dispute.

Austin Milan Beijing Munich Boston New York Brussels Orange County Century City Paris Chicago Riyadh Dubai San Diego Düsseldorf San Francisco Frankfurt Seoul Hamburg Silicon Valley Hong Kong Singapore Houston Tel Aviv London Tokyo Los Angeles Washington, D.C. Madrid

Passman, et al. v. Peloton Interactive, Inc., Case No. 1:19-cv-11711 (LJL): Joint Letter to Adjourn Conference and Trial Deadlines

Dear Judge Liman: We write jointly on behalf of all Parties in the above-captioned case to respectfully request that the Court adjourn the pretrial deadlines and conference, and the current trial date, in this Action.

Given the pending dispositive and evidentiary motions, the Parties believe that adjourning the pretrial and trial dates would promote judicial efficiency and preserve party resources.

If the Court denies Peloton’s motion for summary judgment, the Parties will submit a stipulation with proposed deadlines for pretrial filings within fourteen days of that ruling.

Colorado law3 allows for noneconomic damages of annoyance and discomfort.

Without Dr. Chief’s testimony, the jury will lack the relevant background information necessary to properly determine the reasonableness of noneconomic damages. .... 5 Case 1:18-cv-00744-WJ-KK Document 591 Filed 09/12/22 Page 6 of 7 Dr. Chief's opinions are relevant and helpful because her opinions provide helpful context regarding (1) the reasonableness of the Allen ...

Plaintiffs do not and cannot dispute that the Daubert standard is stricter at summary judgment than at class certification, and that this Court already found three fundamental flaws in Dennis’s testimony.

Plaintiffs assert that there is “no legal or scientific authority” for the contention that a certain number of consumers must be exposed to the Challenged Statement to generate a price premium.

Finally, Plaintiffs confusingly contend that Dennis’s methodology can “account” for different “exposure rates,” implying that his analysis could be adjusted at trial to account for real- world facts showing minimal exposure.

3d 516, 537 (S.D.N.Y. 2020), and Plaintiffs have had numerous opportunities to revise the survey, including after the denial of class certification put them on notice of the need to do so to have a chance at resuscitating Dennis’s analysis.

But what Judge Furman said was that in cases “involv[ing] classic allegations of mislabeling,” a conjoint survey could account for supply-side factors if it used prices at which “companies actually s[old] similarly labeled products” without the challenged representation “in the marketplace.” Gen. Motors, 407 F. Supp.

Plaintiffs are left to speculate that other explanations may exist for the consistent price of the Bike, but their experts did not do the work to prove that any such factor actually had an impact.

2015); see also Constellation Power Source Inc. v. Select Energy, Inc., 2007 WL 188135, at *6 (D. Conn. Jan. 23, 2007) (applying New York’s voluntary payment doctrine to bar claim when plaintiff “knowingly and voluntarily paid grossed-up losses for which it did not believe it was responsible in order to achieve other goals regarding the parties’ relationship”).

That leaves Plaintiffs’ odd argument that Peloton cannot rely on the Terms—which all parties agree advised members about the possibility that classes could be removed, see Pls.’ Resp. to SOF at 1-2—because the company allegedly violated an entirely separate provision about “respect[ing] the intellectual property of others.” Opp.

Plaintiffs purport to dispute Kirk Fair’s “methodologies and conclusions,” Pls.’ Resp. to SOF at 6-8, but they have not sought to exclude her testimony, and they do not cite any admissible evidence that could create a jury question on these issues.

They also rest on mere speculation, as Plaintiffs fail to point to any evidence that confounding factors—as opposed to the absence of materiality— explain why such a tiny number of members cancelled their subscriptions.

LEWIS J. LIMAN, United States District Judge: Plaintiffs, Defendant.

The Court is in receipt of a joint letter submitted by the parties setting forth their respective positions on the briefing schedule for Plaintiffs’ motion for class certification.

Although the Court stated at the May 9, 2022 hearing that it might say things in denying the motion to dismiss “that would usefully inform discovery on both sides,” Dkt. No. 205 at 11, the context of that statement was that the decision on the motion to dismiss might affect discovery of the named plaintiffs.

The Court did not indicate that it would permit the reopening generally of class discovery.

• Plaintiffs’ reply in support of any motion to exclude Defendant’s experts shall be filed by January 6, 2022.

LEWIS J. LIMAN, United States District Judge: Plaintiffs, Defendant.

Briefing and discovery related to class certification has been stayed pending the Court’s disposition of Peloton’s motion to dismiss the Third Amended Complaint.

It is hereby ORDERED that, by August 19, 2022, the parties shall meet and confer and submit to the Court a joint briefing schedule for the motion for class certification.

It is further ORDERED that any stay of discovery previously entered in this case is lifted.

United States District Judge

Passman testified that none of the commercials that he saw prior to buying his bike mentioned anything about music, Peloton’s library, or the specific size of Peloton’s library.

Acknowledging that the Court previously has held that it is not necessary for a plaintiff specifically to allege that she saw an advertisement if she can allege that she nonetheless relied upon it (in some other way), Defendant contends that ...

. . . Courts, nonetheless, can address this claim in response to a Rule 12(b)(6) motion.”).

December 8, 2023 Re: Eric Passman, et al. v. Peloton Interactive, Inc., Case No. 19-cv-11711 (LJL) Joint Letter Requesting Entry of Stipulation to Extend Time

The Parties in the above action jointly write to respectfully request the Court enter the attached proposed Stipulation for Extension of Time in accordance with Practice 2.K of the Court’s Individual Practices in Civil Cases.

Given the intervening holiday season and the Parties’ previous agreement to extend Peloton’s deadline to file these motions, the Parties have met and conferred, and agreed to set an agreed upon briefing schedule, setting the deadline for Plaintiffs’ oppositions on or by January 12, 2024, and Defendant’s replies on or by January 31, 2024.

Therefore, the Parties respectfully request that the Court enter the attached Stipulation for Extension of Time, extending Plaintiffs’ oppositions to Defendant’s pending motions to January 12, 2024, and Defendant’s replies to January 31, 2024.

of DiCello Levitt LLP one of the Attorneys for Plaintiffs and the Proposed Class