Judge Crotty Grants TRO Halting Suspension of Cowboys Running Back Ezekiel Elliott

In a short Order this evening, Judge Crotty (sitting in Part I for Judge Failla), granted the NFL Players Association a TRO to place on hold the six-game suspension of Cowboys running back Ezekiel Elliott.

The ruling explains that, absent a TRO, “Mr. Elliott would suffer irreparable harm because he stands to miss more than one-third of the NFL’s regular season.”

Judge Crotty also found “significant issues implicating the fundamental fairness of the arbitration proceeding” that resulted in the suspension:

Defendant [the NFL Players Association] was denied the opportunity to confront the accusing witness and it had no opportunity to cross examine this witness on the alleged domestic violence.  This is significant because there were substantial questions concerning the credibility of the accusing witness. Defendant was also denied the opportunity to question NFL Commissioner Goodell regarding whether he was aware that the accuser of domestic violence was not credible. In effect, Defendant was deprived of opportunities to explore pertinent and material evidence, which raises sufficiently serious questions.

Second Circuit Throws Out Case Alleging Government Fabricated Evidence for Hedge Fund Raid, Leading to Fund’s Collapse

In an opinion today, the Second Circuit reversed a ruling by Judge Pauley (see our prior coverage here) that had allowed hedge fund manager David Ganek to proceed with claims against the U.S. Attorney and various other government officials over a raid that led to the collapse of his hedge fund, Level Global.  Mr. Ganek had alleged, in essence, that the affidavit supporting the raid was based on false testimony suggesting he knowingly traded on inside information.

The Second Circuit reversed, primarily on the ground that, even absent the allegedly false  information, the raid would have been supported by probable cause: Continue Reading

DOJ: President Trump’s Blocking of Twitter Users Is Not “State Action” For First Amendment Purposes

In papers filed Friday, lawyers for President Trump sought summary judgment in a First Amendment challenge to the President’s blocking of users on Twitter (see our prior coverage here).  The brief argues (among other things) that President Trump’s use of Twitter does not constitute “state action”: Continue Reading

Judge Pauley: Parties Cannot Settle FLSA Case Under “Shroud of Secrecy”

In an opinion last week, Judge Pauley refused to allow the parties in an FLSA case to redact portions of a Settlement Agreement, and further refused to approve the settlement itself.

Judge Pauley found that the presumption of public access to judicial documents was fundamentally at odds with the parties’ attempt to settle under a “shroud of secrecy”: Continue Reading

Judge Forrest Tosses Suit Challenging Alleged City Policy to “Stop All Pedicabs”

This week, Judge Forrest dismissed an action by New York City pedicab drivers challenging city policies towards pedicabs as unconstitutional.  The drivers claimed that NYPD officers were given instructions “from above” to “stop all pedicabs,” which resulted in unwarranted inspections, checkpoints, and fines.

Judge Forrest found that the plaintiffs failed to allege a colorable Fourth Amendment claim: Continue Reading

Judge Castel Upholds New York’s “Ballot Selfie Ban” After Bench Trial

Today, Judge Castel formally upheld New York State’s “ballot selfie ban” at the conclusion of a bench trial.  The ruling comes after Judge Castel denied a preliminary injunction shortly before the November 2016 election (see our previous coverage here).

Considering whether the law violated the First Amendment, Judge Castel found that the law survived strict scrutiny because it promoted the state’s interest in preventing vote buying, voter intimidation, and other forms of voter coercion:

After New York’s adoption of the Australian ballot reforms vote buying and voter intimidation virtually disappeared.  Yet they did not disappear completely—a handful of vote buying schemes have been uncovered in the last several years.  A federal prosecution in this district against the perpetrators of a vote buying scheme is still ongoing.  The lack of evidence of widespread vote buying and voter intimidation in contemporary New York elections does not mean that the state no longer has a compelling interest in preventing these evils.  As the Supreme Court has observed, “it is difficult to isolate the exact effect of these laws on voter intimidation and election fraud. Voter intimidation and election fraud are successful precisely because they are difficult to detect.”

Judge Castel also noted that, in the alternative, the law was a permissible content-based restriction because a voting booth is a non-public forum:

Because polling sites are opened by the government only for the specific purpose of enabling voters to cast ballots and are not historically open for public debate or speech generally, and the necessary limits on speech within polling sites to ensure orderly and efficient elections, the Court concludes that they are non-public fora . . . . It is true that voters could take a photograph of themselves with their marked ballots at the polling site and then upload that photograph to social media once outside the polling site, say, in Times Square, a quintessential traditional public forum, or in the privacy of their own home. But the posting of a photograph of a marked ballot to social media requires two steps: the taking of the photograph and the electronic transmission of that photograph. Because the first step must take place in a non-public forum and the second step may take place in a non-public forum, it is appropriate to assess the impact of the statute as a restriction of speech taking place in a non-public forum.

Judge Failla: Law Schools Steered Students Away From Bar Exam Prep Company On Merits, Not Because Schools Colluded With Barbri

In an opinion today, Judge Failla dismissed entirely a case brought by a bar exam company referred to as “LBE” that specializes in students with LL.M. degrees.  LBE accused the industry leader, Barbi, of colluding with law schools nationwide to harm its business, but LBE’s own complaint — 78 pages long and with 63 exhibits — actually showed that LBE’s problems were of its own making:

The animating force behind this lawsuit is LBE’s belief that Defendants have conspired to make Barbri the country’s leading — and only — bar review company. But shorn of its internal contradictions and conclusory assertions, the First Amended Complaint does not plausibly support that belief.

Instead, the First Amended Complaint depicts a commercial dispute between two bar review providers: Barbri and LBE. And the First Amended Complaint explains why LBE has lost ground in that dispute. Between 2010 and 2016, foreign LL.M. students from coast to coast complained about the quality of LBE’s courses and the company’s business practices. When those complaints reached the administrations of the New York Law Schools and the Non-New York Law Schools, academic administrators intervened. LBE, in turn, saw its tabling privileges vanish — not because of any collusion between Barbri and the ten law schools named as defendants in this case, but because of the independent (and, it appears, justified) actions of the New York Law Schools and the Non-New York Law Schools.

In short, LBE has not alleged a single cognizable federal cause of action: Its antitrust, civil RICO, and copyright claims all fail.

Second Circuit Revives “Small Group Defamation” Claim By Fraternity Against Rolling Stone

In an opinion this week by Judge Forrest (sitting by designation), the Second Circuit reversed in part Judge Castel’s dismissal (covered here) of claims brought by a University of Virginia fraternity against Rolling Stone magazine over a widely discredit article telling the story of a source named “Jackie” being gang raped at a fraternity party.

The Second Circuit found that the complaint made out a plausible claim of “small group defamation” : Continue Reading

Playwright Prevails in Challenge to Parody of “How the Grinch Stole Christmas!”

Last week, Judge Hellerstein ruled that a parody of “How the Grinch Stole Christmas!” constituted fair use and did not infringe on the defendant’s copyright or related trademarks.  The plaintiff, New York playwright Matthew Lombardo, brought the suit against Dr. Seuss Enterprises over his “one actress 75-minute comedic play featuring a rather down-and-out 45 year-old version of Cindy-Lou Who.”  The plaintiff argued that the play was parody and thus fair use, and Judge Hellerstein agreed:

The key question I must therefore resolve, is whether the Play comments on Grinch by imitating and ridiculing its characteristic style for comic effect, or, as defendant contends, merely exploits the characters, style and themes of Grinch in order “to avoid the drudgery in working up something fresh.” Defendant argues that the Play “does not poke fun of the Seussian rhyming style,” but instead usurps that style in order to sell a commercial work. Nor, according to defendant, does the Play comment on or ridicule the characters and themes of Grinch; it merely “uses Grinch, Cindy-Lou, the Grinch character, and the dog Max as building blocks for a sequential work, featuring those same characters in the Seuss-created settings of Mount Crumpit and Who-Ville.”

Defendant’s assessment misses the mark. The Play recontextualizes Grinch’s easily-recognizable plot and rhyming style by placing Cindy-Lou Who – a symbol of childhood innocence and naivete – in outlandish, profanity-laden, adult-themed scenarios involving topics such as poverty, teen-age pregnancy, drug and alcohol abuse, prison culture, and murder. In so doing, the Play subverts the expectations of the Seussian genre, and lampoons the Grinch by making Cindy-Lou’s naivete, Who-Ville’s endlessly-smiling, problem-free citizens, and Dr. Seuss’ rhyming innocence, all appear ridiculous.

Judge Rakoff: “KinderGuides” to Literature Infringe Copyrights of Original Works

In an opinion last week, Judge Rakoff ruled that children’s illustrated versions of classic novels called “KinderGuides” infringed the copyrights associated with the original works.  He rejected the defendants’ arguments that the removal of adults themes and addition of commentary rendered the publishing of the Guides “fair use”: Continue Reading

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