Judge Gardephe: “Degrading” For Counsel to Refer to Female Adversary By Her First Name Before Jury

In an opinion Monday denying a motion for a new trial in a car accident case, Judge Gardephe rejected the plaintiff’s argument (among others) that Judge Gardephe made unfairly biased comments during the trial.  While Judge Gardephe acknowledged there were times that counsel “strained the patience of the Court,” those did not take place before the jury.  Judge Gardephe then listed various ways in which plaintiff’s counsel was unprofessional, including: Continue Reading

In Reviving Sarah Palin’s Suit Against the Times, Second Circuit Rejects Use of Evidentiary Hearings on Motions to Dismiss

In an opinion today, the Second Circuit revived Sarah Palin’s suit accusing The New York Times of defaming her in an editorial suggesting that her political action committee’s use of “stylized cross hairs” over the districts of several members of Congress in online materials was responsible for the “political incitement” of Jared Lee Loughner, who killed six people and wounded many others (including Representative Gabby Giffords) in a 2011 mass shooting (see our prior coverage here).

The Second Circuit took issue with Judge Rakoff relying on evidence from an evidentiary hearing — the testimony from Times editor James Bennet — to dismiss the case under Rule 12.  As the Second Circuit held, Rule 12(d) allows District Courts to either rule based on the pleadings alone, or to convert the motion to dismiss into a motion for summary judgment (with an opportunity to introduce more evidence): Continue Reading

Judge Schofield Trims Claims in Multi-Level Marketing Scheme Class Action Against Trump Organization

In a decision July 24, Judge Schofield dismissed civil RICO claims against the Trump Organization and Trump family members, while allowing the remaining putative class claims to proceed.  The case (see our previous coverage here) alleged that Donald J. Trump, the Trump Organization, and members of the Trump family falsely promoted the multi-level-marketing scheme ACN, reaping millions of dollars in secret payments to promote the scheme that led to would-be entrepreneurs losing millions of dollars.

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In Dismissing DNC Case, Judge Koeltl Emphasizes First Amendment Right to Publish Material Stolen By Others

In an opinion Tuesday, Judge Koeltl dismissed the case brought by the Democratic National Committee and accusing the Wikileaks, the Trump Campaign and others of conspiring with Russia to steal DNC emails in 2016 so as to help President Trump’s election chances (see prior coverage here).

Judge Koeltl dismissed a large portion of the case on First Amendment grounds, finding that the Wikileaks and the Trump Campaign could not be liable for merely disseminating material stolen by the Russians: Continue Reading

Judge Abrams: Jeff Beck Cannot Be Sued in New York Just Because 1969 Guitar Theft Leading to Ownership Dispute Occurred Here

In an opinion yesterday, Judge Abrams found that the court lacked long-arm jurisdiction over British rocker Jeff Beck in a case over the rightful ownership of one of his guitars. The guitar purchaser, plaintiff Perry Margouleff, sought a judicial declaration to refute Beck’s claims that the guitar was stolen from him at a 1969 concert in New York.  As Judge Abrams explained, being the victim of a theft in New York does not amount to the necessary “purposeful availment” that would subject Beck to the court’s jurisdiction: Continue Reading

Judge Engelmayer: “Short Weighting” Class Action Against Whole Foods Disproven by “Lived Kitchen Experience”

In an opinion yesterday, Judge Engelmayer dismissed a class action accusing Whole Foods of exaggerating the weights of certain pre-packaged foods, so as to overcharge customers.  The genesis of the suit was an analysis by New York City’s Department of Consumer Affairs (DCA) finding that 89% of tested products had incorrect weights.

The lead plaintiff, Sean John, claimed to have bought cupcakes and cheese from Whole Foods, but, since he could only speculate that those particular purchases were weighed wrongly, Judge Engelmayer found he lacked standing:

Although John’s testimony can establish that he purchased cupcakes and cheeses from two Whole Foods stores, there is no competent, non-speculative, evidence that any cupcake or cheese item John bought weighed less than the weight used to price it. The DCA investigation, in the form of spot checks at certain stores, does not support the inference of systematic over-pricing. And John in discovery did not adduce competent evidence of a uniform practice by Whole Foods of falsely inflating the weight of its pre-packaged goods in general, or of cupcakes and cheese in particular.

John’s argument that there was systematic overpricing was as follows: because “Whole Foods utilizes uniform recipes and procedures for pre-packaged cupcakes and cheeses,” “a single instance of a short-weight cupcake or cheese item could be found to dictate that all food items of the same type, having been produced pursuant to the same specifications, must have been identically short-weight.” Judge Engelmayer found this argument “in tension with lived kitchen experience”: Continue Reading

Judge Oetken: MLB Umpire Can’t Bring Bias Claims Under Conflicting State Laws

On Thursday, Judge Oetken dismissed a Major League Baseball umpire’s discrimination claims under the Ohio Civil Rights Act, holding that the plaintiff could not seek relief under the conflicting laws of two different states based on a single course of employer conduct.  The plaintiff alleged that the MLB discriminated against him on the basis of race and brought claims under Ohio and New York law.

Plaintiff argued that the “transitory nature” of his job meant that he is discriminated against in every state in which he works.  However, because plaintiff challenged the same acts under both laws, Judge Oetken applied a choice of law analysis and found that the two state laws conflicted because Ohio permits punitive damages while New York does not.   Judge Oetken held that New York had a greater interest in the litigation and dismissed the Ohio claims: Continue Reading

Judge Castel: Plaintiffs Fail to State Claim Against Ja Rule for Fyre Festival

This week, Judge Castel dismissed claims against Jeffery Atkins (better known as Ja Rule) over his role in the disastrous 2017 Fyre Festival (see our previous post here).

Judge Castel held that, while tweets and Instagram posts could be considered material misrepresentations, plaintiffs failed to plead a fraud claim because they did not allege that they had seen the tweets or Instagram posts in question (and thus could not have relied on them).  Judge Castel also focused on the forward-looking nature of the statements that Atkins made:

Atkins and Margolin were participants in organizing or promoting a large-scale event. There is no assertion that the Festival when first conceived or introduced to the public was intended not to go forward or that defendants intended not to perform by organizing the advertised amenities and accommodation. The Complaint states that defendants were aware for “months” that there were no showers, electricity, bathrooms, medical services, or activities on the island. This, without more, does not plausibly allege that defendants months before the event intended not to hire or contract for such services. Many of the statements alleged in the Complaint, such as those from the Fyre Festival advertising video and the Festival’s FAQ page, arise from promotional materials likely released early-on in the lifespan of an event. Even if the date of these statements were alleged, the plaintiffs have not plausibly alleged that the statements were made with a fraudulent intent. The statements are promissory statements regarding future conduct that without more do not give rise to a claim in fraud.

Second Circuit Affirms Judge Buchwald in Trump Twitter Case

In the ongoing case regarding whether President Trump can block individual Twitter users under the First Amendment (see our previous coverage here), the Second Circuit earlier this week affirmed Judge Buchwald’s earlier ruling that the president’s Twitter account is a public forum and that blocking individual users represented unconstitutional viewpoint discrimination.

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Judge Furman: 11 DOJ Attorneys Cannot Withdraw from Census Citizenship Question Case

As part of the ongoing litigation over the citizenship question (see our previous coverage here), Judge Furman today denied a request by 11 Department of Justice attorneys (some of whom had worked on the case since 2018) to withdraw from the case.  According to Judge Furman, the requirements of Local Rule 4.1 had not been met, citing in part the Department of Justice’s own urgency in seeking a resolution of the issue ahead of the 2020 census:

Defendants’ motion is patently deficient (except as to [two attorneys] who have left the Department of Justice and the Civil Division, respectively). Defendants provide no reasons, let alone “satisfactory reasons,” for the substitution of counsel.  And as to the second factor, Defendants’ mere “expect[ation] that withdrawal of current counsel will [not] cause any disruption” is not good enough, particularly given the circumstances of this case: Defendants’ opposition to Plaintiffs’ most recent motion is due in just three days; Defendants’ opposition to Plaintiffs’ anticipated motion for sanctions is due later this month; in event that Defendants seek to add the citizenship question to the 2020 census questionnaire based upon a “new rationale,” time would plainly be of the essence in any further litigation relating to that decision []. As this Court observed many months ago, this case has been litigated on the premise — based “in no small part” on Defendants’ own “insist[ence]” — that the speedy resolution of Plaintiffs’ claims is a matter of great private and public importance.  If anything, that urgency — and the need for efficient judicial proceedings — has only grown since that time.

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