Judge Keenan: Addressing Climate Change is “Squarely Within the Purview of the Political Branches”

By Michael Keough on Posted in SDNY Blog

Yesterday, Judge Keenan dismissed a complaint against several producers of fossil fuels that asked the court to address the producers’ role in the effects of climate change.  The complaint, filed by the City of New York, alleged that the defendants had known for decades about the effects of their fossil fuel emissions on the global climate but continued to promote these fuels.  The City alleged it was harmed when it had to take additional steps to protect the City and its infrastructure from the effects of climate change, including rising sea levels and intense storms like Hurricane Sandy.

Judge Keenan held that the state law claims alleged in the complaint were preempted by the federal Clean Air Act.  According to Judge Keenan: Continue Reading

Judge Koeltl to Litigants: Service Not a “Game” So Work Something Out

By Charles Michael on Posted in SDNY Blog

In the DNC’s lawsuit over having been hacked during the 2016 election (see here), Judge Koeltl today denied without prejudice the DNC’s motion to serve Trump advisor and son-in-law Jared Kushner by alternate means (first-class mail), instead encouraging the parties to just work something out:

The Court . . . notes that service of process is intended to provide notice of a lawsuit to a defendant so that the issues of the case can be joined and the lawsuit decided on its merit or lack of merit. Service is not intended to be a game for the serving party or the party to be served. The Court is confident that the DNC’s counsel can contact Kushner’s counsel and arrange a mutually convenient means to effectuate service.

Four States Sue Treasury Department Over Cap on State and Local Tax Deduction

By Michael Keough on Posted in SDNY Blog

Yesterday, New York, New Jersey, Connecticut, and Maryland filed a complaint against the U.S. Treasury Department and others, seeking to invalidate the newly-enacted cap on the deduction for state and local taxes (SALT) on a filer’s federal income tax return.  Prior to the 2017 changes to the tax law, all or a substantial portion of SALT could be deducted from a federal tax return.  After 2017, the deduction was capped at $10,000. Continue Reading

Judge Hellerstein Dismisses Copyright Suit Against Author of The Art of Fielding

By Charles Michael on Posted in SDNY Blog

In an opinion yesterday, Judge Hellerstein dismissed a suit claiming that the popular novel The Art of Fielding unlawfully misappropriated elements of the story from an unpublished novel called Bucky’s 9th.  After reading both works, Judge Hellerstein found they were not substantially similar:

When read in context, the portions or features of TOAF that are alleged to be similar to Bucky’s are either abstract ideas, scenes a faire, or trivial details insignificant to the either of the two works. True, both works are about a struggling Division III baseball college team, and both works track the baseball team’s changed fortunes after the arrival of a new player. But that is the extent of the similarities.

Continue Reading

Owner of “Let’s Get It On” Copyright Sues Ed Sheeran for $100 Million

By Michael Keough on Posted in SDNY Blog

This week, the owner of the copyright for Marvin Gaye’s hit song “Let’s Get It On” filed a complaint against English singer-songwriter Ed Sheeran.  The complaint alleges that Sheeran’s song “Thinking Out Loud” copies large parts of Gaye’s work, including its vocal melodies, bass lines, chord progression, and harmonic rhythm.  “Thinking Out Loud” was nominated for a Grammy Award for Song of the Year in 2016.

The complaint includes a single claim for copyright infringement and alleges damages of $100 million.

A judge has not been assigned to the case.

Judge Preska Declares Consumer Finance Protection Bureau Unconstitutional

By Michael Keough on Posted in SDNY Blog

In an opinion today, Judge Preska dismissed the Consumer Finance Protection Bureau (“CFPB”) from an action after finding that, because the CFPB’s structure was unconstitutional, it lacked the authority to bring claims under the Consumer Finance Protection Act (“CFPA”).

The CFPB and the New York Attorney General had originally brought claims against companies that offered cash advances to consumers waiting on payouts from settlement agreements, which were allegedly usurious loans under New York law.  Judge Preska challenged whether the CFPB could bring these claims in the first place, adopting the dissenting opinion of Judge Brett Kavanaugh from a recent D.C. Circuit decision.  The majority in that case found that the CFPB was constitutional (a finding that did not bind Judge Preska).  Judge Kavanaugh had argued that the CFPB was unconstitutional because its head, a single director, could not be removed by the President without cause and was not beholden to any other commissioners or board members at the CFPB.  According to Judge Kavanaugh, this violated the principle of separation of powers by divesting executive authority from the President in violation of Article II’s command that “The executive Power shall be vested in a President of the United States of America.”

Judge Preska did find, however, that the New York Attorney General separately had the authority to bring claims under the CFPA and thus allowed the claims to proceed.

Judge Oetken Enforces “Faustian Bargain” of Free Software In Exchange for User Data

By Charles Michael on Posted in SDNY Blog

In an opinion Wednesday, Judge Oetken ruled that it was not unconscionable for UnrollMe, a provider of free software to help unsubscribe consumers from unwanted email, to enforce the users’ agreement to allow the company to use or sell their data, at least on an anonymized basis — notwithstanding that people may not like this sort of arrangement: Continue Reading

Citing Virtues of “Inter-Court Dialogue,” Judge Oetken Refuses to Transfer EPA Case to Texas Court Considering Similar Issues

By Charles Michael on Posted in SDNY Blog

In an opinion yesterday, Judge Oetken refused to transfer to the Southern District of Texas a challenge to the EPA’s decision to suspend a rule from the previous administration, concerning the definition of “navigable waters.”  The Southern District of Texas is considering similar issues in a related case, but Judge Oetken found that the desire for uniformity was not enough to justify the transfer: Continue Reading

Judge Buchwald: Trump Can’t Block Twitter Users Under First Amendment

By Michael Keough on Posted in SDNY Blog

In an opinion yesterday, Judge Buchwald found that President Trump’s practice of blocking users on Twitter (typically after they post a comment critical of the President) violates the First Amendment. The plaintiffs (who included individual users as well as the Knight First Amendment Institute) claimed that preventing them from viewing comments, replying to tweets, and participating in comment threads denies access to an important public forum in the 21st century (see our initial coverage here).

After finding that the plaintiffs had standing, Judge Buchwald determined that the President’s Twitter account was appropriately analyzed as a public forum.  Judge Buchwald reasoned that the account is subject to government control for First Amendment purposes in part because President Trump has used the account “to take actions that can be taken only by the President as President.”  Judge Buchwald then determined that the President may not block users on Twitter based on their political views.  In doing so, she emphasized that blocking users goes further than merely “muting” them, insofar as blocking actually limits the blocked user’s “right to speak”: Continue Reading

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