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

Judge Failla Refuses to Preliminarily Enjoin Ezekiel Elliott Suspension

In an opinion this evening, Judge Failla denied a motion from the NFL Players Association (“NFLPLA”), on behalf of Cowboys running back Ezekiel Elliott, to preliminarily enjoin his six-game suspension arising from a domestic violence incident.

Judge Failla ruled that the NFLPA was unlikely to ultimately prove that the arbitral proceedings leading to the suspension were so unfair as to void the outcome.  She further found the NFLPA could not show sufficient “irreparable harm” to warrant injunctive relief, because the harm to Elliott was speculative: Continue Reading

In Case Over Spoiled Strawberries, Judge Forrest Offers to Try Case on the Papers

In an opinion yesterday, Judge Forrest denied “dueling” motions for summary judgment in case over the shipment of allegedly spoiled strawberries, yet she at the same time observed that there were “serious questions as to whether it is worth incurring the expense of a trial,” given that “the amount in controversy is less than $100,000.”  Accordingly, she offered the parties the unusual option of allowing her to weigh the evidence on the papers and decide the case:

This is not a big case. Indeed, it is a case where only a modest loss is at issue. . . . . To finally resolve this case the parties have two choices: (1) consent to a trial on the papers that would allow the Court to weigh the evidence, or (2) a bench trial.

Judge Crotty Grants TRO Halting Suspension of Cowboys Running Back Ezekiel Elliott

In a short Order this evening, Judge Crotty (sitting in Part I for Judge Failla), granted the NFL Players Association a TRO to place on hold the six-game suspension of Cowboys running back Ezekiel Elliott.

The ruling explains that, absent a TRO, “Mr. Elliott would suffer irreparable harm because he stands to miss more than one-third of the NFL’s regular season.”

Judge Crotty also found “significant issues implicating the fundamental fairness of the arbitration proceeding” that resulted in the suspension:

Defendant [the NFL Players Association] was denied the opportunity to confront the accusing witness and it had no opportunity to cross examine this witness on the alleged domestic violence.  This is significant because there were substantial questions concerning the credibility of the accusing witness. Defendant was also denied the opportunity to question NFL Commissioner Goodell regarding whether he was aware that the accuser of domestic violence was not credible. In effect, Defendant was deprived of opportunities to explore pertinent and material evidence, which raises sufficiently serious questions.

Second Circuit Throws Out Case Alleging Government Fabricated Evidence for Hedge Fund Raid, Leading to Fund’s Collapse

In an opinion today, the Second Circuit reversed a ruling by Judge Pauley (see our prior coverage here) that had allowed hedge fund manager David Ganek to proceed with claims against the U.S. Attorney and various other government officials over a raid that led to the collapse of his hedge fund, Level Global.  Mr. Ganek had alleged, in essence, that the affidavit supporting the raid was based on false testimony suggesting he knowingly traded on inside information.

The Second Circuit reversed, primarily on the ground that, even absent the allegedly false  information, the raid would have been supported by probable cause: Continue Reading

DOJ: President Trump’s Blocking of Twitter Users Is Not “State Action” For First Amendment Purposes

In papers filed Friday, lawyers for President Trump sought summary judgment in a First Amendment challenge to the President’s blocking of users on Twitter (see our prior coverage here).  The brief argues (among other things) that President Trump’s use of Twitter does not constitute “state action”: Continue Reading

Judge Pauley: Parties Cannot Settle FLSA Case Under “Shroud of Secrecy”

In an opinion last week, Judge Pauley refused to allow the parties in an FLSA case to redact portions of a Settlement Agreement, and further refused to approve the settlement itself.

Judge Pauley found that the presumption of public access to judicial documents was fundamentally at odds with the parties’ attempt to settle under a “shroud of secrecy”: Continue Reading

Judge Forrest Tosses Suit Challenging Alleged City Policy to “Stop All Pedicabs”

This week, Judge Forrest dismissed an action by New York City pedicab drivers challenging city policies towards pedicabs as unconstitutional.  The drivers claimed that NYPD officers were given instructions “from above” to “stop all pedicabs,” which resulted in unwarranted inspections, checkpoints, and fines.

Judge Forrest found that the plaintiffs failed to allege a colorable Fourth Amendment claim: Continue Reading