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Trials & Litigation

After US prosecutors mistakenly file confidential memo, is their challenge to congestion pricing doomed?

By Debra Cassens Weiss

April 28, 2025, 9:51 am CDT

Federal prosecutors have been kicked off a challenge to congestion pricing in New York City after they mistakenly filed a confidential memo saying the government is “very unlikely” to be successful.

The U.S. attorney for the Southern District of New York will be replaced on the case by the U.S. Department of Justice’s Civil Division, according to a statement by the U.S. Department of Transportation.

Law360, Courthouse News Service, ABC News and the New York Times (here and here) have coverage.

“Are SDNY lawyers on this case incompetent or was this their attempt to resist?” the Transportation Department said in a statement cited by news media. “At the very least, it’s legal malpractice. It’s sad to see a premier legal organization continue to fall into such disgrace.”

The U.S. attorney’s office said in a statement the court filing “was a completely honest error and was not intentional in any way. Upon realizing the error, we immediately took steps to have the document removed.”

The confidential memo dated April 11 said there is “considerable litigation risk” in defending efforts by Sean Duffy, the secretary of the Transportation Department, to block the congestion pricing program using an argument that it was not statutorily authorized.

The Federal Highway Administration might be able to properly end the program, however, under regulations concerning the termination of cooperation agreements that no longer further agency priorities, the memo said.

U.S. District Judge Lewis J. Liman of the Southern District of New York said in an April 24 order the mistaken filing raises two questions. The first is whether there is sufficient basis to seal the document after it was published by media outlets. The second is whether the mistaken disclosure waives the applicable attorney-client privilege.

Liman, an appointee of President Donald Trump during his first term, is temporarily keeping the memo under seal and is asking for parties’ responses with due dates of May 2 and May 7.

Disclosure of the memo is “a lawyer’s nightmare,” but it is unlikely to be a deciding factor in the case, said Eric A. Goldstein, a senior attorney with the Natural Resources Defense Council, a nonprofit environmental advocacy group that supports congestion pricing, in an interview with the New York Times.

Little in the memo was surprising, and Liman, the judge in the litigation, is already familiar with the issues after hearing four other challenges to congestion pricing, Goldstein said.

Corey Bearak, a lawyer who opposes congestion pricing, told the New York Times that the Trump administration should consider other ways to challenge the program, including by joining litigants fighting congestion pricing in state court.

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Two friends in Florida played a game in which they tested each other’s readiness to face real danger. As it turned out, the only threat was to themselves.

The Volusia County Sheriff’s Office on Tuesday arrested 25-year-old Brad Markey-Perez after he allegedly shot his pal by mistake, authorities said. Deputies responded on March 20 to a shooting at a home in Orange City. They found the victim suffering from a gunshot wound to the jaw. Paramedics took him to the hospital.

Markey-Perez told deputies he and the victim like to have “drills” where they “practice with each other the importance of being vigilant of their surroundings, especially while armed with a firearm,” a probable cause arrest affidavit said.

“Both own firearms and they would have ‘drills’ where one would try and get the jump on the other as a form of training. These ‘drills’ are usually performed with unloaded firearms or using ‘cap’ style ammunition that is a nonfunctioning round,” the affidavit said.

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Trials & Litigation

Lawyer mistakenly filed ‘verbatim copy’ of opponent’s brief, leading to loss for Romantics band member

By Debra Cassens Weiss

March 5, 2024, 8:20 am CST

A trial court did not abuse its discretion when it required a member of the rock band the Romantics to pay triple damages after his new attorney filed a “verbatim copy” of the opponent’s brief by mistake, the Michigan Court of Appeals has ruled.

The appeals court ruled against the Romantics guitarist Mike Skill in a lawsuit alleging that he wrongly diverted royalty payments to himself.

Law360 has coverage.

The trial judge had ordered Skill to pay triple damages of more than $232,300, as requested by the plaintiffs in their motion for summary disposition. The appeals court affirmed in a Feb. 29 unpublished opinion.

Skill co-wrote the song “What I Like About You,” according to Law360.

Skill’s lawyer intended to file an opposition to the plaintiff’s motion for summary disposition, the appeals court said. Instead, the June 2022 brief was a cut-and-paste of the plaintiff’s brief in support of summary disposition, signed by Skill’s lawyer, who was not named in the opinion.

The new attorney said a paralegal had filed the wrong brief. It was filed on the extended deadline day for a response to the summary disposition request. Skill’s lawyer tried to file an amended brief the next day, but the trial judge apparently rejected it.

The judge granted summary disposition to the two plaintiffs—a company formed to manage business affairs for the band known as Master Beat Inc. and fellow band member Walter Palamarchuk, who goes by the stage name Wally Palmar.

The trial court reasoned that it could reject the new brief and award summary disposition to the plaintiffs based on timely filings before the court. The trial judge also said evidence established Skill’s liability for conversion, breach of fiduciary duty and unjust enrichment.

Palamarchuk was president of Master Beat, and Skill was secretary-treasurer. The company had contractual agreements requiring the payment of royalties to Master Beat, which would then distribute royalties to past and present band members under various contractual agreements.

Skill thought that he was entitled to royalties without the money first passing through Master Beat, and he took steps to divert royalties to himself in late 2020, the suit alleged.

There is some evidence, the appeals court said, that Skill apparently received about $26,700 in royalties directly from Sony Music Publishing and $30,000 in royalty payments from K-Tel International before Master Beat became aware of it. The evidence, however, isn’t entirely clear from the record, the appeals court said. There is also some evidence that Skill withdrew $20,000 from a bank account belonging to Master Beat in July 2021, thinking that he was entitled to the money.

The lawyer who filed the wrong brief had taken over in May 2022 from a previous lawyer who sought to withdraw on the alleged ground that Skill had not paid his legal bills. The new lawyer blamed the filing mistake on the short time frame between the time that she came aboard and the due date for the response, on her own illness as the deadline approached, and on her paralegal’s failure to file the brief prepared by Skill’s former lawyer as instructed.

On the merits, Skill’s lawyer argued that he could not convert funds that already belonged to him.

“Under these circumstances,” the appeals court said, “defendant has not demonstrated that the trial court abused its discretion by declining to permit the filing of a corrected brief after the deadline imposed by the scheduling order had passed. … Furthermore, on the record before the trial court in light of the lack of a properly and timely filed responsive brief, the trial court did not err by granting plaintiffs’ motion for summary disposition.”