Judge Furman: Burden to Justify Detention Pending Deportation Proceedings Falls to Government, Not the Person Facing Deportation

By Charles Michael on Posted in SDNY Blog

In an opinion today, Judge Furman ruled that, under the Due Process Clause, it is the Government that must bear the burden, in immigration proceedings, to justify the continued detention of people subject to deportation.

He found that, in weighing the Government’s interests of ensuring an appearance by the person subject to deportation against that person’s liberty interests, “the greater risk of error” should fall to the Government, and that “[s]everal other considerations” reinforced the point: Continue Reading

Judge Broderick: Copyright Case Against Justin Timberlake Is Timely; Plaintiff Had No Duty “Scour” All Songs Immediately After Album Was Released

By Michael Keough on Posted in SDNY Blog

Last week, Judge Broderick denied a motion to dismiss a case brought by the copyright holders for the song “A New Day is Here at Last,” written by Perry Kibble in 1969 and performed by J.C. Davis.  The suit alleged that Justin Timberlake’s 2006 hit song “Damn Girl” sampled “A New Day is Here at Last” without seeking permission from the copyright holder, a company managed by Kibble’s sister.  Timberlake released the song in 2006 as part of an album and tour that received multiple Grammy and Emmy nominations.  Plaintiffs discovered that “Damn Girl” had sampled “A New Day is Here at Last” in August 2015 and filed the suit in February 2016.

Among other arguments, defendants claimed that the widespread availability of the album and concert DVD put plaintiffs on notice of any possible infringement well before 2015, and hence the case was untimely.  Judge Broderick rejected this argument: Continue Reading

Judge Furman: Secretary of Commerce Must Sit for Deposition Over Census Citizenship Question

By Michael Keough on Posted in SDNY Blog

This week, Judge Furman ordered U.S. Secretary of Commerce Wilbur Ross Jr. to sit for a deposition in a case challenging the constitutionality of adding a question about citizenship status to the 2020 U.S. census questionnaire.  The question had not appeared on the census questionnaire since 1950; according to the complaint, the question was purposefully added to decrease the response rate among immigrant communities, leading to fewer public services and less Congressional representation in those areas.

Judge Furman had previously found that the plaintiffs had “made a strong preliminary or prima facie showing that they will find material beyond the Administrative Record indicative of bad faith” and allowed discovery into the decision to add the citizenship question back to the census.  Judge Furman found that the deposition of Secretary Ross himself was required because of Secretary Ross’s high degree of personal involvement in the decision and the extent to which his credibility and intent was thus at issue Continue Reading

Judge Rakoff Grants Sanctions for “Objector Extortion” in Proposed Class Action Settlement

By Michael Keough on Posted in SDNY Blog

Yesterday, Judge Rakoff sanctioned an attorney for an objector to the $3 billion Petrobras securities litigation settlement (see our full coverage of the Petrobras litigation here).  Judge Rakoff had approved the settlement over the objections, after which the objectors filed an appeal.  According to the class plaintiff, the appeals were part of an “extortionist agenda” to extract a monetary settlement in exchange for dismissing their appeals.

Judge Rakoff warned against the rise of frivolous objections to class settlements: Continue Reading

Judge Castel:  Attorney Review of Draft Corporate Documents Is “Prudent,” Not “Subterfuge” to Evade Discovery

By Charles Michael on Posted in SDNY Blog

In an opinion yesterday, Judge Castel denied in part a motion to compel certain drafts of sales and marketing documents withheld as privileged in an antitrust case.  The plaintiff argued that the attorneys were not providing legal advice but, instead, “‘scrubbing’ or ‘vetting’ these documents ‘to avoid having a jury see the unvarnished truth.”  Judge Castel disagreed, and emphasized that it is perfectly appropriate for lawyers to review documents before any wider circulation: Continue Reading

Ja Rule: Social Media Posts Do Not Create Liability for Failed “Fyre Festival”

By Michael Keough on Posted in SDNY Blog

Last week, Jeffrey Atkins (better known as Ja Rule) asked Judge Castel to dismiss claims against him stemming from the “Fyre Festival,” a 2017 music festival in the Bahamas that descended into chaos after organizers were unable to deliver the luxury accommodations, celebrity chefs, and musical acts that attendees were expecting (see NYT coverage here).  Plaintiffs accused Atkins specifically of making two social media posts upon which the plaintiffs relied – promising that the festival would be “the biggest FOMO-inducing event of 2017” and promising attendees the day before the festival that “the stage is set” (see complaint here).

In his motion to dismiss, Atkins argued that these two posts were the only statements upon which plaintiffs could even have claimed to relied, as other statements by Atkins did not become publicly known until after the festival occurred: Continue Reading

Judge Pauley: Despite 40,000 Words of Summary Judgment Briefing, Photo of Snoozing Mouse Is Enough to Show There Are Fact Issues

By Charles Michael on Posted in SDNY Blog

In an opinion yesterday, Judge Pauley denied summary judgment in a case alleging that a certain rodent repeller devices are ineffective, contrary to the defendant’s allegedly false representations.

He noted that the parties had filed over 40,000 words in briefing the issues, but that three photos (including the one below) were sufficient to decide the motion.  The photos showed that “mice can apparently relax comfortably under a Repeller and even appear to be so drawn in by its siren song that one would scale a wall just to snooze on it,” which left “this Court wondering how [the defendant] can argue that there is no disputed issue of material fact as to efficacy.”

Airbnb Challenges NYC’s Homesharing Monitoring Law

By Michael Keough on Posted in SDNY Blog

Last week, Airbnb filed a complaint challenging the city’s new ordinance requiring homesharing platforms to share data about hosts and guests to the Mayor’s Office of Special Enforcement.  According to Airbnb, the new ordinance allows the city to collect wide-ranging categories of non-public information:

“[T]he Ordinance requires Internet homesharing platforms to turn over personal information about their hosts, much of which is not made public through the platforms. The Ordinance also requires homesharing platforms to turn over their own non-public and commercially sensitive information, including detailed breakdowns of revenues and technical information about listings. To the extent a platform collects rent, it is also required to hand over highly sensitive bank account information about how guests choose to pay and how much. All of this is data the Office of Special Enforcement could not otherwise obtain without precompliance review, and the Ordinance permits that agency to use and share the data however and whenever it chooses, without any meaningful limitation. In so doing, the Ordinance breaches critical privacy protections both for homesharing platforms like Airbnb and for the New Yorkers who share their homes on these platforms.  Put another way, the Homesharing Surveillance Ordinance requires Airbnb to report on a monthly basis volumes of otherwise private information about who New Yorkers choose to invite into their homes, where those homes are located, when and for how long the guests stay, and what the guests are doing there.

According to Airbnb, the ordinance is the result of a lobbying effort by New York’s hotel industry to prevent competition from homesharing sites.

The complaint asks for injunctive relief, claiming that the new ordinance violates the First Amendment, the Fourth Amendment, and the federal Stored Communications Act.

The case is currently pending before Judge Engelmayer.

Judge Stanton Grants Preliminary Injunction Against Creator of “Grand Theft Auto V” Cheat Software

By Michael Keough on Posted in SDNY Blog

In an opinion last week, Judge Stanton granted video game manufacturer Take-Two’s request for an injunction against the creator of two software programs that allowed users to cheat at Take-Two’s “Grand Theft Auto V” video game.  Among other functions, the computer programs allow users to use an unlimited amount of in-game currency that otherwise had to be purchased from Take-Two.  Take-Two alleged that the cheat software violated Take-Two’s copyright in “Grand Theft Auto V” and also violated the terms of the user agreement.

In granting the preliminary injunction, Judge Stanton focused on the harm to both the public as well as Take-Two: Continue Reading

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