In an opinion yesterday, Judge Liman granted — albeit with clear reluctance — the government’s motion to dismiss a case brought by former Trump attorney Michael Cohen against various government offices who allegedly retaliated against him for planning to publish a book critical of former President Trump.

Cohen was placed on furlough during his prison sentence, but then suddenly, while negotiating the terms of a transition to home confinement with probation officials, was remanded to prison.

In July 2020, Judge Hellerstein granted Cohen release via an Order stating:

The Court finds that Respondents’ purpose in transferring Cohen from release on furlough and home confinement back to custody was retaliatory in response to Cohen desiring to exercise his First Amendment rights to publish a book critical of the President and to discuss the book on social media.

In the case before Judge Liman, Cohen was suing for damages, primarily by asserting so-called Bivens claims against the federal government. Judge Liman found that the Supreme Court’s more recent interpretations of Bivens — essentially that no Bivens claim can proceed if by statute there is any other remedy, no matter how small — barred Cohen’s lawsuit.

But Judge Liman noted that the result worked a form of “violence” to Cohen’s constitutional rights:

Continue Reading Judge Liman Laments Supreme Court Precedent Barring Damages Remedy For DOJ’s Retaliation Against Michael Cohen for Planned Book About Trump

In an opinion Friday, Judge Abrams approved an SEC settlement, but wrote that she would “not do so silently,” because she found highly “troubling” the SEC’s standard, non-negotiable provision requiring that the defendant not make “any public statement denying, directly or indirectly, any allegation in the complaint or creating the impression that the complaint is without factual basis”: Continue Reading Judge Abrams Harshly Criticizes SEC’s “Lifetime Gag” Settlement Requirement

On Wednesday, Judge Carter granted Major League Baseball’s Motion to Dismiss the Complaint of four Minor League Baseball teams alleging that MLB violated the Sherman Act by orchestrating an agreement among its clubs to eliminate 40 minor league teams from affiliation with major league clubs. As discussed in a previous post, Plaintiffs argued the Supreme Court had signaled its willingness to reconsider MLB’s exemption from antitrust scrutiny in NCAA v. Alston, 141 S. Ct. 2141 (2021). Continue Reading Judge Carter: MLB’s Antitrust Exemption “Shields” MLB from Minor League Baseball Teams’ Sherman Act Suit

In an Order Monday, Judge McMahon chided a group of defendants for “asking for permission to file almost everything in support of their motion for summary judgment and motions to exclude testimony of plaintiff’s various experts under seal.”

Referring to the required confidentiality stipulation “addendum” in her Individual Practices — which states “that confidentiality stipulations are abused by parties and that much material that is not truly confidential is designated as such” — Judge McMahon directed the defendants to instead evaluate confidentiality with a more careful, line-by-line approach: Continue Reading Judge McMahon: “Most” Discovery Designated Confidential is Not; Oral Argument on Summary Judgment “Rarely” Necessary

In an endorsement today, Judge Schofield declined to postpose a major antitrust trial, despite lead counsel for a bank testing positive for COVID, given that counsel’s firm had several other lawyers available. The endorsement, in full, reads:

It is unfortunate that defense counsel has tested positive for COVID, but the circumstances warrant proceeding with the trial as scheduled. This case has been pending since 2013, and the Court’s next available trial date is in the second quarter of 2023. Defense counsel’s firm has six lawyers designated to try the case and ample additional resources. Counsel who is ill is responsible for only four of the twelve-to-fourteen live witnesses.

Great effort and expense would have to be duplicated to prepare anew for trial in several months, even assuming the availability of lawyers and witnesses. For all of these reasons, the application is DENIED

In a decision issued last week, Judge Abrams granted investment fund Franklin Templeton’s motion to dismiss a lawsuit brought against it by Amy Cooper, a former employee. In May 2020, video of an altercation between Ms. Cooper and a black birdwatcher in Central Park went viral. Her employer terminated her the following day, and issued this statement: “Following our internal review of the incident in Central Park yesterday, we have made the decision to terminate the employee involved, effective immediately. We do not tolerate racism of any kind at Franklin Templeton.”

Ms. Cooper sued, alleging race and gender discrimination and defamation. Judge Abrams held that Ms. Cooper’s complaint did not give rise to even a “minimal inference of discriminatory motivation.” As to the defamation claim, Judge Abrams held that Franklin Templeton’s statement was “a protected statement of opinion, rather than a defamatory statement of fact capable of being proven true or false.”

Continue Reading Judge Abrams: Viral “Central Park Karen” Failed to State a Claim Against Former Employer

In an opinion last week, the Second Circuit, reversing a decision by Judge Furman (covered here), held that Citibank could sue to recoup almost $500 million that it had sent, in error, to certain lenders of a struggling borrower, Revlon.

Citibank was the administrative agent for the loans, and, based on a technical error, wired the full principal balance (nearly $900 million) before the maturity date. Judge Furman applied the “discharge for value” defense to conclude that even a mistaken payment need not be returned where it pertains to a valid debt.

The Second Circuit concluded, however, that the defense is inapplicable so long as the recipient is on “inquiry notice” of the mistake. Inquiry notice was shown by the fact that there was no prior notice of any loan repayment, as the transaction documents required, and by the fact that Revlon was not expected to have the funds to repay: Continue Reading Second Circuit: Citibank Can Recoup $500 Million Accidental Debt Repayment

In an opinion today, Judge Woods ruled, in essence, that retweets are not endorsements. The ruling came in connection with a denial of CNN’s motion for reconsideration in a case brought by two family members of former National Security Advisor Michael Flynn. The court had previously ruled that the plaintiffs’ false light claim against CNN could proceed, based on a CNN report that suggested the plaintiffs were followers of the conspiracy group QAnon.

Judge Woods rejected the argument (initially accepted in a report and recommendation by Magistrate Judge Cave) that the plaintiffs’ “likes” and “retweets” of pro-QAnon tweets rendered the association with QAnon substantially true: Continue Reading Judge Woods: Retweets Are Not Endorsements

In a trademark infringement complaint filed on Monday, Liberty Tax Service sued the makers of the TV show “Better Caul Saul” for depicting an allegedly similar business, “Sweet Liberty Tax Services,” as essentially a criminal enterprise: Continue Reading Tax Preparation Firm Sues the Makers of “Better Caul Saul” For Depiction of Similarly-Named, but Crooked, Fictional Firm