Judge Swain Appointed to Oversee Puerto Rico Debt Litigation

Last week, the government of Puerto Rico filed a petition for relief under the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA).  PROMESA gave Chief Justice John Roberts authority to select a U.S. district court judge to preside over the case, and last week he selected SDNY’s Judge Laura Taylor Swain.

Additional coverage of Judge Swain and the Puerto Rico litigation can be found here and here.

Judge Netburn Refuses New Yorker Magazine’s Request for Ray Kelly’s Deposition Because Appeal Divested Her of Jurisdiction

On Friday, Judge Netburn rejected the New Yorker magazine’s letter request to release a sealed deposition of former NYPD commissioner Ray Kelly, in a case brought by Muslim officer who sued Mr. Kelly and New York City for discrimination but lost on summary judgment.  She found that she lacked jurisdiction to grant the request because the proper procedural vehicle is a motion to intervene under Rule 24 — which the District Court cannot address while an appeal is pending: Continue Reading

Judge Peck: “We Have a Deal” Email from Lenny Dykstra’s Lawyer Creates a Binding Settlement

In an order Friday, Judge Peck enforced as a binding contract the terms of a settlement negotiated over email in a case against former Mets star Lenny Dykstra.  The plaintiff managed Mr. Dykstra’s social media presence, including “dealing with the fallout from Dykstra’s boorish behavior,” and claims to have not been paid (see complaint here).

Mr. Dykstra’s lawyer had written “we have a deal” in an email chain with settlement terms but later argued that the terms also needed to include a “standard” mutual release.  Judge Peck disagreed: Continue Reading

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

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