FOIA Suit Seeks Disclosure of Law Enforcement Surveillance of Black Lives Matter Movement

A complaint filed yesterday seeks to enforce a FOIA request for data on the federal government’s surveillance of the activities of the Black Lives Matter movement.  The complaint argues that the monitoring may “chill valuable public debate about police violence, including the use of deadly force, criminal justice, and racial inequities” in violation of the First Amendment, and that the government’s “[d]esire for secrecy should not shield potential constitutional violations.”

A judge has not yet been assigned.

Judge Forrest Dismisses Remaining Claims in Aluminum Antitrust Litigation

Yesterday, Judge Forrest dismissed the remaining claims in the ongoing aluminum antitrust litigation, which alleged that aluminum trading firms and warehouses conspired to increase the price of aluminum.  In August, the Second Circuit affirmed Judge Forrest’s dismissal of the claims brought by indirect purchaser plaintiffs who did not actually participate in the market that was supposedly distorted (see our previous coverage here).

Judge Forrest applied the same logic to dismiss the claims for the remaining  first level purchaser plaintiffs: Continue Reading

Suit Against Met Alleges that $100 Million Picasso Painting Was Sold Under Duress in Nazi Germany

The heirs to estate of the former owner of Picasso’s “The Actor” filed a complaint last week alleging that the painting, currently in the Metropolitan Museum of Art’s collection, was sold under duress in the 1930s as its owner at the time, a German Jew, fled the Nazi regime.  The complaint alleges that, but for the Nazis’ policies to seize Jewish assets in Germany (including art), the owner never would have sold the painting at such a steep discount.  The dealer to whom the painting was sold found an American buyer for the work, who donated it to the Met in 1952.

The original owner and her family fled to Italy, Switzerland, and eventually Brazil, were they were able to stay only after paying a levy to the Brazilian government using the proceeds from the sale of “The Actor.”  The complaint alleges that the Met ignored various red flags both at the time of sale and through the intervening years that would have indicated that the work’s true provenance was tainted by the Nazis.

The complaint includes claims for replevin, conversion, and declaratory judgment, seeking immediate delivery of the painting or damages in the alternative of $100 million.

The case is pending before Judge Preska.

Supreme Court Grants Cert in Case Challenging New York’s Credit Card Surcharge Ban

Today the Supreme Court granted certiorari in a First Amendment challenge to New York’s ban on credit card surcharges.  The law allows merchants to charge different prices for cash and credit card purchases, but, according to the plaintiffs, it violates the First Amendment by prohibiting them from calling the extra charge for credit card purchases a “surcharge” — which the plaintiffs allege is a more effective way of encouraging the use of cash than describing the same arrangement as a cash “discount” (which is not prohibited).

Judge Rakoff had enjoined the law, but the Second Circuit reversed.

SCOTUSBlog has all the case documents here.

The Volokh Conspiracy has a post on the case here.

Our prior posts on the case are here.

Second Circuit Affirms Judge Forrest’s Dismissal of “Flash Boys” Suit

In an opinion Friday, the Second Circuit affirmed Judge Forrest’s dismissal of a complaint (see our prior coverage here) accusing stock exchanges of improperly allowing high-frequency traders to pay to obtain and trade on market data faster than other investors — the conduct at issue in the Michael Lewis book “Flash Boys.”  The Second Circuit agreed that the claims were preempted by the SEC having found the underlying conduct permissible:  “From the Exchange Act – which focuses on the need to create a national market system – we can infer that Congress intended for the regulations governing national securities exchanges and securities information processors to be uniform. Allowing conflicting judicial interpretation of the SEC requirements pursuant to state contract law would stand as an obstacle to the uniformity that Congress intended to create for the national market system.”

Judge Batts: Investors in Madoff Feeder Fund Lack Standing to Sue Fund Managers and Auditors

In an opinion yesterday, Judge Batts dismissed claims by investors in a Madoff feeder fund against the fund’s managers and auditors because, under the law of the British Virgin Islands (where the funds were organized), only the fund had standing to assert the claims. If fact, she noted, similar claims against the same defendants are being pursued by the fund itself in BVI liquidation proceedings: Continue Reading

Second Circuit Affirms Summary Judgment in Trademark Case Against Oprah

This week, the Second Circuit affirmed Judge Crotty’s grant of summary judgment dismissing trademark claims against Oprah Winfrey over use of the phrase “Own Your Power” (see our previous coverage here).  The Second Circuit agreed with Judge Crotty that use of the phrase “Own Your Power” was fair use and did not infringe on the name of the plaintiff’s motivational speaking business, Own Your Power Communications, Inc.  This decision was based on the panel’s finding that the plaintiff’s “mark” was merely a descriptive phrase: Continue Reading