Judge Cote Won’t Disqualify SEC Trial Team For Receiving Privileged Documents Via DOJ’s Search Warrant

Yesterday, Judge Cote declined a defendant’s request to disqualify the SEC’s entire trial team on the eve of trial after the SEC received allegedly privileged communications between the defendants and their counsel.  The documents were seized by federal agents during the execution of a search warrant and provided to federal prosecutors, who in turn provided them to the SEC.

Judge Cote found that this did not warrant disqualification, as the SEC had taken steps to ensure that potentially privileged documents were excluded from its review and had informed defense counsel as soon as privileged documents were discovered.  Judge Cote further noted that:

[T]here is a danger that the motion to disqualify the entire SEC trial team from an investigation that has been ongoing since 2013 is tactically motivated. . . . [A]ssuming for the purposes of this motion that the four documents are indeed privileged, it appears that the SEC trial team has only reviewed one of the four documents, the Fayyer Notes. [The defendant] has not pointed to any statement in the Notes, however, that is at odds with the positions it has taken publicly in opposition to the SEC’s litigation or that reveals any undisclosed litigation strategy or statement harmful to [the defendant].

Judge Sweet: Fox News’s Statement that It Took “Decisive Action” After Assault Allegation Does Not Disparage the Unnamed Accused Assailant

This week, Judge Sweet dismissed a complaint brought by a former Fox News Latino vice president who was terminated after a Fox News contributor accused him of sexual assault.  According to the complaint, a joint statement by Fox News and the accuser published in a New York Times article — stating that Fox News took “decisive action” in response to the accuser’s complaints  — violated a mutual non-disparagement clause in the plaintiff’s termination agreement, and was defamatory.  The complaint also alleged that the statement was part of a wider conspiracy to boost the image of Fox News in the wake of the Roger Ailes scandal (supposedly at the expense of plaintiff’s career).

Judge Sweet called the plaintiff’s complaint “worthy of its own Martin Scorsese thriller” and found that “both law and sechel [common sense]” justified the dismissal.  The joint statement was not defamatory or disparaging, Judge Sweet found, because it did not even mention the plaintiff by name.  Accordingly, it could not “be read plausibly to indicate anything, let alone anything discrediting, about Plaintiff.”  That the New York Times published the statement within an article that did name the plaintiff was not enough to impose liability on Fox News, because Fox News was “not plausibly responsible for what else was written” in the article.


Judge Daniels Dismisses Emoluments Case Against President Trump on Standing Grounds

In an opinion today, Judge Daniels dismissed on standing grounds a suit challenging President Trump’s business dealings under the so-called Foreign and Domestic Emoluments Clauses in the U.S. Constitution  (see our prior coverage here).  Judge Daniels concluded that the alleged “competitive injury” suffered by the “Hospitality Plaintiffs” who compete with President Trump’s hotels was not sufficient, because the harm was not within the “zone of interests” of the Clauses:

Nothing in the text or the history of the Emoluments Clauses suggests that the Framers intended these provisions to protect anyone from competition. The prohibitions contained in these Clauses arose from the Framers’ concern with protecting the new government from corruption and undue influence . . . .  There is simply no basis to conclude that the Hospitality Plaintiffs’ alleged competitive injury falls within the zone of interests that the Emoluments Clauses sought to protect.

Judge Daniels also rejected the argument from the lead plaintiff, the watchdog group “CREW,” that it had standing to sue by virtue of the “drain on its limited resources” caused by President Trump’s actions:

CREW’s decision to investigate and challenge Defendant’s actions under the Domestic and Foreign Emoluments Clauses at the expense of its other initiatives reflects a choice about where and how to allocate its resources — one that almost all organizations with finite resources have to make. If CREW could satisfy the standing requirement on this basis alone, it is difficult to see how any organization that claims it has directed resources to one project rather than another would not automatically have standing to sue.

Judge Carter Vacates Ruling at Both Sides’ Request To Facilitate Settlement

In a case concerning a loan default, Judge Carter agreed today to vacate a prior ruling finding that the borrower (the National Bank of Liberia) had waived sovereign immunity.  Judge Carter agreed with the parties that doing so would help foster a settlement of the matter:

[T]he parties seek the Court’s assistance in facilitating settlement, by allowing the parties to return to the status quo ante in case settlement fails. There is a strong public policy in this Circuit in favor of the settlement of disputes . . .

Under Fed. R. Civ. P. 54(b), district courts are “empowered to revisit and vacate … any nonfinal order’ at any time before the entry of a judgment . . . where it benefits the parties but does not run counter to any public interest.”  . . .

Here, . . . [t]he fact that both parties jointly moved for vacatur indicates that there is something mutually beneficial in settlement for both sides.

As for the public interest, district court decisions are not treated as binding precedents, but instead serve as persuasive authority. Accordingly, there is less of a concern about the development of decisional law when it comes to district court opinions. The vacated [opinion] will continue to have influence, even if vacated.

Broadway Producers Sue to Bust Broadway Casting “Cartel”

In a complaint filed earlier this week, a group of Broadway producers accused various Broadway casting companies of “band[ing] together to form a casting cartel, enlisting the help of the Teamsters to force Broadway producers to engage in collective negotiations.”  The Broadway League, representing the producers, notes that “the market for casting services is highly concentrated” but that “competition for casting services has been robust, forcing prices down.”  According to the complaint: Continue Reading

Complaint: Bill O’Reilly Breached Settlement Non-Disparagement Clause by Portraying Accusers as Extortionate Liars

In a complaint filed yesterday, a former Fox News producer alleged that Fox News host Bill O’Reilly violated the terms of a confidential settlement agreement when he made public statements indicating that harassment claims against him were mertitless, and merely reflected attempts to extort money from him.  According to the complaint, O’Reilly settled discrimination claims brought by the plaintiff in 2002.  That agreement included non-disparagement and non-defamation clauses, which plaintiff argues were violated when O’Reilly recently described the claims as “politically and financially motivated” and the complainants as “smear merchants.”

The complaint includes claims for breach of contract, defamation, and breach of the covenant of good faith and fair dealing against both O’Reilly and Fox News. The complaint also includes a claim for tortious interference against O’Reilly.  The plaintiff seeks damages for the breach, as well as reputational, economic, emotional, and punitive damages.

The case is currently pending before Judge Batts.

Complaint: Call of Duty Video Game Infringes Trademarks by Pervasively Featuring Humvees

In a complaint filed yesterday, the makers of Humvee branded vehicles (AM General) accused the makers of the Call of Duty video games of trademark infringement (and of related violations) because the games prominently feature Humvees:

Defendants have used and continue to use AM General’s trademarks and trade dress in advertising and promotion of their Call of Duty® video game franchise . . .  Defendants’ video games have been successful but only at the expense of AM General and consumers who are deceived into believing that AM General licenses the games or is somehow connected with or involved in the creation of the games.

Defendants have reaped billions of dollars in revenues from their wrongful acts and, in the process, have irreparably harmed AM General by causing significant confusion, expressly misleading the consuming public, and diluting the goodwill and reputation of AM General’s famous marks.

The case is before Judge Daniels.

For Appeal Argument Tomorrow, Ezekiel Elliott and NFL Dispute Whether Missing Games is “Irreparable Harm”

At 2:00 p.m. tomorrow, the Second Circuit will hear arguments on a motion from the NFL Players Association (NFLPA) to stay pending appeal Cowboys running back Ezekiel Elliott’s six-game suspension arising from a domestic violence incident.  Judge Failla refused to preliminarily enjoin the suspension, but the Second Circuit granted an administrative stay so it could consider whether to issue a stay pending appeal.

The NFLPA’s brief argues that the case “presents the starkest possible case for irreparable harm”: Continue Reading