Second Circuit Reverses Judge Rakoff, Finds Uber Arbitration Clause is Enforceable

As part of the ongoing Uber antitrust litigation, the Second Circuit yesterday reversed Judge Rakoff’s earlier ruling that the arbitration clause in Uber’s terms of service was not enforceable (see our previous coverage of Judge Rakoff’s decision here, and the interlocutory appeal here).

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Judge Swain Awards Tiffany $19.35 Million in Trademark Case Against Costco

In an order yesterday, Judge Swain awarded $19.35 million in trebled profits and punitive damages to Tiffany & Co. for its trademark infringement claims against Costco.  The case stemmed from Costco’s use of the term “Tiffany” to describe generic rings sold in the jewelry section of its stores.  The award is an increase over the original amount awarded by the jury after a trial last year.

As part of the ruling, Judge Swain found that Tiffany was still entitled to punitive damages, even though it sought an accounting of profits rather than actual damages:

Costco also argues that, because Tiffany only sought an accounting of profits and not “actual damages,” it is precluded from seeking punitive damages. Although some courts in the Second Circuit have drawn a distinction between actual damages and profits for the purposes of the Lanham Act, others have characterized both as “actual damages” available under the Lanham Act.  Furthermore, the Lanham Act itself contemplates the possibility of an award of statutory damages (sought here), which permits consideration of both punitive and compensatory factors, without the need to establish profits or actual damages in the recognition that such measures of monetary relief may be difficult to prove in these cases.  The provision for statutory damages in the Lanham Act thus explicitly provides a mechanism to compensate plaintiffs even in the absence of proof of actual damages or profits.  Accordingly, the Court finds that punitive damages are not preluded in this case by Tiffany’s pursuit of an accounting of profits and statutory damages rather than “actual damages.”

Our full coverage of the case is here.

Judge Forrest: Fact That Complaint Exposes Book By Former Fox News Host as Ghostwritten Is Not Grounds For Sealing

In an opinion unsealed last week, Judge Forrest ruled that a suit by the alleged ghostwriter of former Fox News host Andrea Tantaros’ book Tied Up in Knots could not stay sealed, merely because the revelation that there was a ghostwriter could cause Tarantos “humiliation”:

Defendant argues that, as a well-known television journalist, her credibility is her trade, and if plaintiff’s role in helping defendant write the Book was revealed it would severely undermine her credibility in the eyes of her colleagues, fans, publisher, and the wider news-media world. Defendant contends that in view of the professional repercussions and personal humiliation she would suffer, the harm of disclosure justifies a continuation of the seal . . . .

The Court disagrees. A possibility of future adverse impact on employment or the celebrity status of a party is not a “higher value” sufficient to overcome the presumption of access to judicial documents. . . .

(Hat tip:  Volokh Conspiracy)

Video Game Maker Argues “Fair Use” of Images of NBA Player Tattoos

Take-Two, the maker of the video game NBA 2K, argues in a motion filed yesterday that its display of certain player tattoos in the game is transformative “fair use,” and therefore does not violate the rights of a licensee, plaintiff Solid Oak:

Take-Two is not a rival tattooist that has replicated a creative design and inked it on a new person. Rather, its use is completely different in a massive, highly creative video game featuring a virtual world that only uses player tattoos to realistically capture how the players actually look.

Take-Two also argues that it would set a dangerous precedent to grant copyright protection in this case: Continue Reading

Opposition Brief: Trump’s Emoluments Argument Has “No Support in Two Centuries of History”

Citizens for Responsibility and Ethics in Washington (CREW) and other plaintiffs responded Friday to President Trump’s motion to dismiss their case to enforce the Constitution’s Emoluments Clause.  President Trump argued that the clause, which prevents government officers from receiving gifts from foreign countries, was never intended to cover the president’s private business dealings unrelated to his office or service to a foreign power (see our previous coverage of the motion here).

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Judge Oetken: Law Banning Robocalls to Cell Phones, Except Where Government is Collecting Debts, Does Not Violate First Amendment

In an opinion Wednesday in a case under the TCPA, a law that (among other things) bars calls without consent to cell phones via automatic dealings systems, Judge Oeken rejected the defendant’s argument that, by exempting government debt collection calls from the ban, the law is a form of speech discrimination that violates the First Amendment.

Judge Oekten found that, while the law “imposes a content-based restriction on speech” and thereby merits “strict scrutiny,” the law was nonetheless justified under that standard: Continue Reading

Judge Gardephe Dismisses Renewed Defamation Claims by Anti-Aging Doctors Labeled as “Quacks”

Today, Judge Gardephe dismissed with prejudice the amended complaint brought by two prominent “anti-aging” doctors against the nonprofit consumer advocacy website “Quackwatch.”  Last year, Judge Gardephe dismissed the original complaint, containing defamation claims based on an article reporting that the plaintiffs had agreed to pay fines to the Illinois licensing authorities for improperly using the term “M.D.” after their names (see our coverage here).  Plaintiffs’ amended complaint claimed that the defendant, a retired doctor who operates the “Quackwatch” site, had secretly contacted government officials in China and Malaysia to scuttle the plaintiffs’ valuable government contracts based on the allegedly defamatory article on “Quackwatch.”

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SDNY Selects Three New Magistrate Judges

The Southern District has announced three new magistrate judges, who will fill the seats being vacated by Magistrate Judges Francis, Ellis, and Peck later this year.

Joining the bench will be Stewart Aaron, of Arnold & Porter Kaye Scholer; Robert Lehrburger, of Patterson Belknap Webb & Tyler; and Ona Wang, of Baker & Hostetler.

For more, see the New York Law Journal.

Judge Preska: Widespread Pirating Makes Music Price Fixing Case Unsuitable for Class Treatment

In an opinion yesterday, Judge Preska refused to certify as a class action a case alleging price fixing in the digital music industry.  Among other reasons, she found that widespread pirating would raise “unclean hand” defenses that could not be determined on a classwide basis:

Defendants note that two of the Proposed Class Representatives admitted in their depositions to pirating Digital Music and that a third refused to produce documents that might expose his participation in illegal downloading.  [A defense expert] also cites evidence of widespread illegal downloading of Defendants’ music during the class period, indicating that between 2004 and 2009 approximately 30 billion songs were illegally downloaded on file-sharing networks and that only 37% of music acquired by U.S. consumers in 2009 was legally purchased . . . .

[I]f the alleged price fixing inflated the prices for Digital Music such that Plaintiffs responded by illegally obtaining songs for free, the Court would necessarily have to conduct an individualized inquiry into evidence of illegal downloading by the proposed class members in order to determine whether such an offset is necessary for each individual plaintiff. Because Plaintiffs propose nine separate damages classes with millions of potential members, this individualized inquiry would quickly overwhelm questions common to the class.

N.Y. Times Moves to Dismiss Palin Defamation Suit, Arguing Editorial Concerned Palin’s PAC, Not Palin Personally

Last week, the New York Times Company moved to dismiss a defamation suit brought by Sarah Palin over a New York Times editorial drawing a connection between SarahPAC’s publication of a “crosshairs map” referencing Representative Gabrielle Giffords and the mass shooting where she was wounded in 2011 (see our previous coverage of the suit here).

The Times argues that SarahPAC cannot be considered an alter ego of its namesake, meaning that the editorial was not “of and concerning” her: Continue Reading