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NOVEMBER 2017 - BRO Court Decisions
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Notable Federal Court Decisions by Judge O’Connell


by Melissa Cerro



1.      In re: National Football League's "Sunday Ticket" Antitrust Litigation, case number 2:15-ml-02668, in the U.S. District Court for the Central District of California  (Westlaw Citation: Slip Copy, 2017 WL 3084276, 2017-1 Trade Cases P 80,045)


Plaintiffs filed a class action lawsuit against multiple National Football League (“NFL”) teams, various DirecTV entities, and various television companies (collectively, “Defendants”) alleging anti-competition and Sherman Act violations in regards to the “Sunday Ticket” programming that provided DirecTV exclusive rights to broadcast NFL games not already broadcast on a television station, in a local geographic area.  Specifically, Plaintiffs asserted that Defendants violated Section 1 of the Sherman Act by limiting licensing and live game distribution competition with the purpose and effect of restricting trade and increasing consumer and advertiser pricing, and violated Section 2 of the Sherman Act by monopolizing the live game distribution of regular season NFL games and allowing DirecTV to serve as the only source for a majority of NFL games.  Defendants in response filed a Motion to Dismiss.  Judge O’Connell granted the Motion to Dismiss in relation to both sections of the Sherman Act.  Specifically, in relation to Section 1, Judge O’Connell held that the Plaintiff failed to establish competition was harmed as a result of the vertical contract between DirecTV and the NFL Defendants, in particular because it was not shown that output was reduced and because Plaintiffs’ allegations suggested the agreement had procompetitive effects.  Lastly, in relation to Section 2, Judge O’Connell found that Plaintiff failed to plead an antitrust injury, one of four elements necessary to establish a conspiracy to monopolize.


2.      Bostick, et al. v. Herbalife International of America, Inc., et al., United States District Court for the Central District of California, Case No. 2:13-cv-02488-BRO-RZ


In 2013, a class action lawsuit was brought against Herbalife for allegedly violating California’s endless chain scheme law and the federal Racketeer Influenced and Corrupt Organizations Act.[1]  In addition, the class asserted Herbalife failed to comply with California’s false advertising and unfair and deceptive business practices protections.  In June of 2015, Judge O’Connell issued a final judgment and order of dismissal for the case, after approving the $15 million settlement, with up to an additional $2.5 million in product returns.  The agreement also explains several corporate policy changes at Herbalife and stipulates that the settlement is not an acknowledgement of liability or fault.


3.      Are-east River Science Park, LLC v. Lexington Insurance Company, Slip Copy, 2014 WL 12587051


In 2014, Judge O’Connell denied Defendant Lexington Insurance Company’s Motion for Summary Judgment.  At issue was a portion of an insurance contract between the parties about whether a high deductible for claims caused by named tropical storms applied in the case.  The facts stemmed from damage caused to Plaintiff’s property in October 2012 by Superstorm Sandy (“Sandy”).  Defendant asserted Plaintiff’s claims failed to meet the deductible because Sandy was a named storm under the contract, while Plaintiff claimed that Sandy was reclassified by the National Weather Service as a post-tropical-cyclone prior to causing damage and, therefore, did not fall under the high deductible clause.  Judge O’Connell, in denying the motion, agreed that Sandy was reclassified prior to hitting land, that there was a triable issue of fact as to whether storm activity that occurred before it had been reclassified caused the damage to Plaintiff’s property, and additionally found that there was a genuine issue of material fact as to the cause of Plaintiff’s injuries.


4.      Dizon v. Asiana Airlines, Inc., 240 F.Supp.3d 1036 (2017).


Plaintiff, a former passenger on Defendant’s aircraft, filed a claim for violation of the Montreal Convention, negligence, and intentional infliction of emotional distress.  While traveling on an overseas flight between Manila and Los Angeles, plaintiff experienced leg pain and asked the flight attendants for a Tylenol, which they provided.  During the layover in South Korea and upon his arrival in Los Angeles, Plaintiff asked for and received wheel chair assistance, but at no time requested to be taken to a hospital.  Defendant moved for Summary Judgment and Judge O’Connell granted the motion in relation to all three claims.  Specifically, under the Montreal Convention, Plaintiff must establish (1) an accident occurred; (2) the accident caused the passenger’s injury; and (3) the accident occurred either on the aircraft or while entering or exiting the aircraft.  Here, Judge O’Connell agreed that the actions or inactions of the crew were not inadequate enough to be “unusual or unexpected” and therefore could not lead to being designated an “accident” under the Montreal Convention.  Furthermore, Judge O’Connell dismissed the negligence and intentional infliction of emotional distress claims due to Plaintiff’s inability to maintain a cause of action under the Montreal Convention and the Supreme Court’s holding requiring liability under the Convention in order to maintain state law causes of action.


5.      Spy Optic v. Alibaba.Com, Inc., 163 F.Supp.3d 755 (2015).


Plaintiff, a sunglass manufacturer, brought suit against an online commerce company,, asserting the company allowed counterfeiters to sell products, and alleging trademark infringement, false advertising, unfair competition, and false designation of origin.  Defendant filed a Motion for Judgment on the Pleadings.  Judge O’Connell, in denying Defendant’s motion, found that Plaintiff sufficiently pled claims for direct and contributory trademark infringement, false advertisement, and unfair competition and false designation of origin.


Notable State Court Decisions by Judge O’Connell

 by Melissa Cerro



1.      People v. Martin, Los Angeles Superior Court Case No. BA324894 (2010)


Martin was charged with first degree murder of a victim in connection with a robbery as well as two counts of attempted premeditated murder of bystanders.  Martin approached the victim at a local restaurant and attempted to rob her of her jewelry.  He shot her and fled the scene, firing a single shot at two witnesses who were watching from an apartment balcony.  Martin was an active gang member at the time.  The two special circumstances were the commission of the murder in connection with criminal threats, robbery, and the commission of the murder by an active gang member for the benefit of the gang.  Martin sought to bifurcate the special circumstances from the underlying crimes.  Judge O’Connell denied the motion to bifurcate, in part because the underlying facts were inextricably intertwined with the special circumstances.  The jury convicted Martin.  At sentencing, Martin argued that the two attempted murder counts were subject to the prohibition against multiple punishments pursuant to California Penal Code section 654.  Judge O’Connell sentenced defendant to life in prison without the possibility of parole.  (Modified and affirmed in People v. Martin, 2011 WL 3307916.)


2.      People v. Jones, Los Angeles Superior Court Case No. VA095591 (2007)


Jones was charged on numerous counts, including attempted robbery, assault with a deadly weapon, and indecent exposure, in connection with his attempt to rob a Dollar Market.  Jones admitted he had four prior convictions of a serious or violent felony.  Judge O’Connell struck two of the priors and sentenced Jones as a third strike offender, to 25 years to life on the attempted second degree robbery count.  (Affirmed by People v. Jones. 2008 WL 4712758.)


3.      People v. Salcedo Los Angeles Superior Court Case No. VA096287


Salcedo was charged with intimidating a witness in connection with a pending murder trial.  It was also alleged that his conduct was in association with or for the benefit of a criminal street gang.  Salcedo’s father was standing trial for murder and Salcedo was alleged to have spoken to a potential witness in the hall, reminding the witness that he (Salcedo) was a member of the Orange Street Locos.  Salcedo testified that he was no longer a member of the Orange Street Locos gang, and did not intimidate the witness.  Salcedo was acquitted.


4.      Citizens Business Bank v. Carrano (2010) 189 Cal.App.4th 1200.


This matter arose from a dispute over whether a child born out of wedlock was a beneficiary of his biological grandparents’ trust.  The trial court found the trust instrument was ambiguous and that his grandparents did not intend for him to be a beneficiary under their trust.  Judge O’Connell, sitting by assignment on the Court of Appeal, reversed, holding that the definition of “issue” in the trust instrument unambiguously included a lineal descendant who had not been adopted out of the bloodline.


5. People v. Austin, Los Angeles Superior Court Case No. PA064769 (2011)


Austin was charged with a series of forcible and nonforcible sexual offenses, including oral copulation with a person under 16, forcible oral copulation, lewd act on a child, and attempted unlawful sexual intercourse.  During opening statement, defense counsel told the jury Austin was guilty of all the nonforcible charges, but he was innocent of the forcible oral copulation charges.  The prosecution theory was duress; the defense theory was reasonable belief in the victim’s consent to the oral copulation.  In a case of first impression in California, Judge O’Connell ruled a prosecution child sexual abuse expert was qualified to testify that a sexual assault victim could have experienced an orgasm during nonconsensual oral copulation.  The judgment was affirmed in People v. Austin (2013) 219 Cal.App.4th 731.


Melissa Cerro is the co-chair of the WLALA Law Student Mentoring Committee.  Ms. Cerro is an in-house attorney at Gamblit Gaming, LLC.

[1] The amended complaint (filed 7/7/14) on which the parties eventually reached a settlement did not include the RICO claim.