Moving forward…

A bit.

When we last left the cashmere conundrum, we were waiting for developments on the motions brought by certain defendants (the US-based ones) in both the Bliss and Noro actions. And now, we have them.

If you recall (what, you don’t?), certain defendants had moved to have the parts of the complaints that were based on federal law dismissed, so that all that remained were the counts based on state law. If the counts based on federal law were dismissed, the defendants argued, then the rest of the action ought to be dismissed from U.S. District Court as well because the proper venue would have been state court.

The defendants had mixed success. Last week, the court issued orders for both lawsuits (Bliss PDF, Noro PDF). In the Bliss action, the count based on the Lanham Act (false advertising under federal law) was dismissed, but the count based on RICO was not (although the grounds for the RICO claim were cut down).

In the Noro action, the Lanham Act count was dismissed, which left only allegations based on state law. However, the court retained jurisdiction over the action because of the diversity of citizenship (there are companies based in Japan, Pennsylvania, and New York, and individuals from New York and New Jersey).

If you need a scorecard, this is what remains in each lawsuit…

In the Bliss action–

I. (state law) Breach of Express Warranty of the Merchantability of Goods for Resale to Consumers
(against Knitting Fever, Sion Elalouf and Jay Opperman)

II. (state law) Breach of Implied Warranty of the Merchantability of Goods for Resale to Consumers
(against Knitting Fever, Filatura Pettinata, Sion Elalouf and Jay Opperman)

III. (federal law) Explicitly False Advertising Claim Pursuant to the Lanham Act
(against Knitting Fever)

IV. (federal law) Injury to Business and Property Pursuant to Racketeer Influenced and Corrupt Organization Act
(against Sion Elalouf)
allegations of mail fraud and wire fraud remain; allegations regarding witness tampering, obstruction of justice, and exerting influence to obtain documents from a Coats employee struck out

V. (federal law) Conspiracy to Cause Injury to Business and Property
(against all defendants except Knitting Fever)

VI. (state law) Perfidious Trade Practices (Deceit) under the Common Law of Unfair Competition
(against Knitting Fever and Sion and Diane Elalouf)

VII. (state law) Motion to Pierce the Corporate Veil of the Elalouf-Controlled Entities
(against Knitting Fever and the Elaloufs)

In the Noro action–

I. (state law) Breach of Express Warranty of the Merchantability of Goods for Resale to Consumers
(against Knitting Fever, Sion Elalouf and Jay Opperman)

II. (state law) Breach of Implied Warranty of the Merchantability of Goods for Resale to Consumers
(against Eisaku Noro & Co., Knitting Fever, Sion Elalouf and Jay Opperman)

III. (federal law) Explicitly False Advertising Claim Pursuant to the Lanham Act
(against Knitting Fever)

IV. (state law) Perfidious Trade Practices (Common Law Unfair Competition)
(against Knitting Fever and Sion and Diane Elalouf)

V. (state law) Civil Conspiracy
(against all individual defendants, not companies)

VI. (state law) Motion to Pierce the Corporate Veil of the Elalouf-Controlled Entities
(against Knitting Fever and the Elaloufs)

The files linked above include the reasons for judgment. If you hadn’t read anything up to now, finding it tl;dr, the memoranda (reasons) provide a good summary of the allegations made in each lawsuit. I feel compelled to caution first (due to certain earlier observations) that just because these allegations are summarized in the reasons here does not mean that a court has determined that all the allegations are actually true; the test for whether allegations should be dismissed generally requires the court to assume the allegations in a pleading are true.

What’s next? The actions could go forward, or one or more of the parties could appeal one or more of these orders; the moving defendants, for example, did not get everything they asked for. In any event, this action will move about as quickly as… my knitting. Which is somewhat existent, but not quite.

ETA: also, the court ordered that these two actions be consolidated for the purposes of discovery and trial.

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5 Responses to Moving forward…

  1. j. says:

    Well, we have this (PDF) – service by FedEx, stated to be in compliance with the Hague Convention. I don’t know how FRCP works, but some court rules do allow for service bypassing the central authority even if the country of the recipient is a party to the Convention…

    No motions by Noro at all (or by the foreign defendants in the Bliss action). The time limit for service, I think, is 120 days.

  2. Annie says:

    I’m a little late to the party here, but would sure like to see the Proof of Service for Noro. Proper service in Japan is done in accordance with the Hague Service Convention,(Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil and Commercial Matters) and can take 6 to 8 weeks for service, and another 4-6 weeks to get the proof back from the foreign officials. If the suit was filed on 10-8, and proofs of service for all defendants filed on 10-21, the plaintiff probably didn’t serve through the Convention, although maybe that is in the works. Has Noro filed a Motion to Dismiss based on improper service?

  3. Susan says:

    Did you see that Fair Isle Knitting is being re-published by Dover Publications? It comes out this summer. Starmore must be having a conniption (sp?) fit!

  4. j. says:

    Okay (but this lawsuit has been going on for far less than a year!)…

    The Knit With, a yarn shop in PA, is suing (in two separate lawsuits:

    1. Debbie Bliss, Designer Yarns, Knitting Fever, a number of Knitting Fever-affiliated people, and an Italian middleman (company); and

    2. Noro, Knitting Fever, and a number of Knitting Fever-affiliated people,

    over the alleged lack of cashmere in certain yarns.

    The defendants have not yet filed a defense in the action; they have been trying to get various parts of the complaints dismissed.

    If you just want to read about the basis of the dispute, read the complaints, and read the defenses when they are finally filed — those will set out the parties’ positions about the actual dispute. This is why I suggest reading the memoranda (the reasons for the order), because the judge does summarize all the allegations before dealing with the legal issues.

  5. Amy says:

    Okay, I’ve been reading this blog for almost a year now, clicked on a zillion links trying to understand the different documents…and I’m still lost!

    Can you summarize in a sentence…or two, who is suing whom and why? I realize many details will be left out, but I just need to know where I’m starting from so I can build on it as I try to decipher all the docs.