Judge Wood Dismisses Preemptive Copyright Action Brought By Internet Service Provider

Yesterday, Judge Wood dismissed an attempt by internet service provider (ISP) Windstream to secure a declaratory judgment that its status as an ISP meant that it lacked the necessary knowledge and ability to secondarily infringe copyrights under the Digital Millennium Copyright Act.  The defendant, music publisher BMG, argued that the court lacked jurisdiction to issue what would amount to an advisory opinion preventing any future infringement claims against ISPs. Continue Reading

Judge Furman: Parties Cannot Circumvent Approval of FLSA Settlements with Rule 68 Offer of Judgment

In an opinion yesterday, Judge Furman weighed in on  — and certified for interlocutory appeal — an issue that has divided judges in the Southern District:  whether the requirement that FLSA settlements be approved by the DOL or the Court can be avoided by a settlement accomplished via a Rule 68 offer of judgment.  Because Rule 68 is phrased in mandatory terms (when an offer is accepted, the “clerk must then enter judgment”), some courts have held that there is no room for judicial or DOL approval.

Judge Furman disagreed: Continue Reading

NBA’s Thabo Sefolosha Settles Case Against NYPD After Judge Furman Helps Seal the Deal

Yesterday, Thabo Sefolosha settled his case against the NYPD for $4 million (see ESPN coverage here) for false arrest, excessive force, malicious prosecution, and false imprisonment (see our previous post here).  The complaint had stemmed from an incident outside a Manhattan nightclub in April 2015, where Sefolosha alleged that NYPD officers beat him and broke his leg without justification.  Sefolosha alleged that the NYPD orchestrated a malicious prosecution against him in an attempt to cover up wrongdoing after they realized he was a well-known basketball player.  Sefolosha was later acquitted by a Manhattan jury.

According to an order by Judge Furman, the settlement came after a conference presided over by the judge with a settlement figure that Judge Furman had suggested.


Judge Nathan Tosses Yellow Cabs’ Fifth Amendment Takings Claim Over Uber Regulatory Treatment

Last week, Judge Nathan dismissed a challenge by a group of yellow taxi medallion owners to New York City’s regulatory treatment of Uber and similar ride-hailing services.  The plaintiffs alleged that the decision to exempt Uber and its drivers from the requirements imposed on yellow cabs constituted a regulatory taking under the Fifth Amendment and violated the Fourteenth Amendment’s Equal Protection Clause (see our previous coverage here).  Judge Nathan rejected the takings claim as untimely, noting that New York State provided a mechanism for seeking just compensation for a taking, but plaintiffs had not attempted to avail themselves of it.

In response to the plaintiffs’ equal protection claim, Judge Nathan reasoned that the city was justified in separate regulatory regimes for yellow cabs and Uber: Continue Reading

Judge Marrero Imposes $1,000 Sanction for Double Spacing Fudge

In a brief order Thursday, Judge Marrero imposed a sanction of $1,048.09 against a party that deliberately broke his individual rule requiring briefs be double-spaced:

At the March 24, 2017 hearing regarding plaintiff CafeX Communications’s (“CafeX”) Motion for a Preliminary Injunction (“Motion,” Dkt. No. 8.) the Court found that defendant Amazon Web Services, Inc. (“Amazon”) violated this Court’s Individual Rules of Practice (“Individual Rules”) which require that all memoranda “be double-spaced and in 12- point font with 1-inch margins.” Amazon’s memorandum of law opposing CafeX’s Motion was 24-point spaced, not double spaced, and allowed Amazon to submit a substantially longer memorandum than the 25 pages provided by this Court’s Individual Rules.

The flouting of this Court’s Individal Rules was a deliberate choice by counsel for Amazon to gain some slight advantage in this litigation. As such, this Court ordered Amazon to replace its memorandum with a compliant memorandum and submit a declaration stating the cost of filing the revised memorandum. Amazon subsequently filed a compliant memorandum of law and counsel for Amazon submitted a declaration stating that the cost of preparing the compliant memorandum was $1,048.09.

As counsel for Amazon’s conduct in subverting this Court’s Individual Rules was deliberate, the Court finds that sanctions in the amount of the cost to prepare a compliant memorandum of law is appropriate to deter similar conduct in the future.

Second Circuit Finds that Claim Focused on Sexual Orientation Discrimination May Proceed Under Gender Stereotyping Theory

Last week, the Second Circuit reversed Judge Failla’s decision criticizing precedent that she concluded required dismissal of a Title VII claim focused on sexual orientation discrimination (see our coverage of Judge Failla’s ruling here).  The Second Circuit found that it lacked authority to overturn circuit precedent without an en banc panel or a subsequent U.S. Supreme Court decision, and so did not revisit its prior conclusion that Title VII does not authorize suits based on sexual orientation discrimination.  The panel did find, contrary to Judge Failla’s ruling, that the case could proceed as a plausible gender stereotyping claim:

Continue Reading

SCOTUS: NY Credit Card Surcharge Law Regulates Speech

Yesterday, the U.S. Supreme Court held that New York State’s law preventing merchants from charging an additional fee for using a credit card (see our previous coverage here) regulates speech, and remanded the case to the Second Circuit to determine whether the law can survive First Amendment scrutiny.  Judge Rakoff had initially ruled in favor of the merchants, but the Second Circuit found that the law was permissible as it only regulated the relationship between the two prices rather than speech.

In an opinion by Chief Justice Roberts, the Court found otherwise: Continue Reading

Judge Forrest: UPS Liable for Shipping Untaxed Cigarettes in New York State

On Friday, Judge Forrest held UPS liable to the City and State of New York for shipping millions of dollars worth of untaxed cigarettes from Native American reservations to locations elsewhere in the state (see our previous coverage of the case here).  The order comes after a bench trial held last September, where UPS asserted that packages it delivered containing untaxed cigarettes did not violate a previous Assurance of Discontinuance (AOD) signed with the State of New York in 2005.

Judge Forrest found that UPS had improperly shipped untaxed cigarettes, and should have known that the packages contained untaxed cigarettes based on numerous red flags.  As a result, significant penalties were appropriate (though the court highlighted UPS’ now-improved internal procedures): Continue Reading

New Complaint Seeks Damages from Saudi Arabia for Ties to 9/11 Attacks

A complaint filed this week by families of 9/11 victims alleges that the government of Saudi Arabia knowingly gave aid and support to al Qaeda, allowing the terrorist organization to carry out the 9/11 attacks in New York, Washington, and Pennsylvania.  According to the complaint, state-run charities funneled money to al Qaeda while members of the Saudi government provided logistical support and resources used to carry out the attacks.  The complaint was filed pursuant to the Justice Against Sponsors of Terrorism Act (JASTA), passed into law over President Obama’s veto last year.

The complaint includes claims under JASTA and the Alien Tort Claims Act, as well as state law.

A judge has not yet been assigned.

Judge Sullivan: No Extension of Pretrial Deadlines for Expected, But Not Finalized, Settlement

In an order yesterday, Judge Sullivan refused an to extend the time for the SEC to oppose motions in limine in a six-year-old case.  The SEC sought the extension because the parties reached a settlement awaiting formal Commission approval, but Judge Sullivan found that those grounds were not enough, particularly because the request itself was untimely:

On October 6, 2016, the Court ordered the parties to file motions in limine by February 10, 2017, with responses due by March 10, 2017 and replies due by March 24, 2017. On March 10, 2017 — the day on which responses to motions in limine were due — the SEC and Defendant . . . advised the Court that they had reached an agreement in principle and requested that the schedule for motions in limine be stayed pending the SEC’s approval of the settlement, which was expected to take “about six weeks.” The Court denied the request, noting that while the parties may choose not to respond to motions in limine if they are confident that the agreement in principle will be approved by the SEC, the original scheduling order remained intact.

The Court is now in receipt of another request from the SEC, this time requesting permission to file its opposition to Defendant[‘s] motions in limine out of time, on the grounds that the SEC’s formal approval of the settlement, which it now expects to be done by March 24, 2017, will “render the pending motions in limine moot.”  The request, which was submitted five days after the due date of the responsive filings, is itself untimely and in violation of the Court’s individual practices. Moreover, the fact that the parties have reached a potential settlement more than six years after the commencement of this action does not justify the scuttling of the pretrial order that was issued many months ago.