In an opinion yesterday, Judge McMahon denied a preliminary injunction to the online exchange that does business as Novig and that sells “event contracts” tied to sporting events. Novig sued the New York Attorney General and the State Gaming Commission to stop them from enforcing New York’s gambling and mobile sports-wagering laws against it. New York had already moved against other operators of these markets, including Kalshi, Coinbase, and Gemini.

Novig’s theory was preemption. The CFTC has “exclusive jurisdiction” over swaps traded on designated contract markets. It defines swaps to include contracts that depend on an “event or contingency associated with a potential financial, economic, or commercial consequence.” Judge McMahon held that Novig’s contracts likely are not swaps, so New York may require Novig either to get a state gambling license or to stop listing the contracts.

The court’s analysis tracks a split that has opened among the courts of appeals this year: the Third Circuit held that sports event contracts are swaps and that the CEA preempts New Jersey’s gaming laws as applied to them, but the Ninth and Sixth Circuits ruled the other way.

In the Second Circuit, a motions panel on November 3 denied injunctions pending appeal in three appeals heard together: two by Kalshi and one by Coinbase. The panel said only that the appellants “failed to make the required showing” for an injunction.  Two of the appeals are from cases in Connecticut, and the third arises from a ruling from Judge Torres, which aligns with Judge McMahon’s ruling.

Continue Reading Judge McMahon Joins Sixth and Ninth Circuits: Sports “Event Contracts” Are Not Swaps, and New York Can Regulate Them as Gambling

In an opinion Friday, Judge Kaplan denied a motion by AI video developer Runway AI to dismiss a putative class action brought by YouTube creators. The creators allege that Runway got around YouTube’s technological protections to “scrape” their videos to train its AI models. For instance, YouTube blocks “abnormal request volumes” from the same IP address, but the creators allege that Runway “executed an IP rotation scheme to cycle through different IP addresses to avoid detection.”

The sole claim arises under the Digital Millennium Copyright Act’s anti-circumvention provision, 17 U.S.C. § 1201(a), which makes it unlawful to “circumvent a technological measure that effectively controls access” to copyrighted material. The term “circumvent” is further defined to include “avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure.”

Continue Reading Judge Kaplan: Evasion Of YouTube’s Anti-Scraping Measures By AI Firm Can Violate DMCA, Even For Free Public Videos

In an opinion yesterday, Judge Furman held that the summary firing of former AUSA Maurene Comey was unlawful. He rejected the government’s argument that Article II bars Congress from protecting federal prosecutors against at-will removal (see our prior coverage here).

Comey was terminated in July 2025 by a one-page memo citing only “Article II of the United States Constitution and the laws of the United States.” She received no notice, no reasons and no hearing. The decision was made by then Attorney General Pam Bondi.

The government conceded that the Civil Service Reform Act’s for-cause and procedural protections cover AUSAs and were not followed. Its defense was that those protections are unconstitutional as applied to criminal AUSAs. In its view, Trump v. United States (the presidential immunity decision) places criminal prosecution within the President’s “conclusive and preclusive” power, and Trump v. Slaughter (which held that the President could replace agency heads and other “principal officers”) allows for no constraint on executive branch officials like Ms. Bondi exercising that power.

Judge Furman disagreed:

Continue Reading Judge Furman: Article II Does Not Allow AUSAs To Be Fired At Will

On Monday, Judge Arun Subramanian granted summary judgment to the New York City Board of Education (“Board”) in the latest iteration of its ongoing dispute with the U.S. Department of Education (“Department”) over federal grant funding for nineteen public magnet schools. This marks the third time the Board has prevailed against the Department in this litigation.

Continue Reading Judge Subramanian: DOE’s Grant Math is “Plainly” Arbitrary and Capricious

In an opinion Tuesday, Judge Caproni preliminarily enjoined New York’s Attorney General from enforcing a new law that bars landlords from setting rents based on recommendations from algorithmic pricing software, finding that RealPage, which licenses such software, is likely to succeed on its First Amendment challenge.

New York General Business Law § 340-B, enacted in 2025 to address rising rents and lengthy apartment vacancy periods, contains two operative provisions. Section 2 bars facilitating agreements among competing landlords not to compete on price, including through software.  Section 3 separately makes it unlawful for residential landlords to set or adjust rents based on recommendations from software that performs a “coordinating function.” RealPage licenses AI-powered software that generates rent and occupancy recommendations for residential landlords. Since settling with the Department of Justice, RealPage transitioned away from using non-public data, except in limited circumstances. RealPage argued that the Statute violates the First Amendment by restricting protected speech in the form of algorithmically generated pricing recommendations.

Continue Reading Judge Caproni: NY Law Targeting AI Rent Recommendations Likely Sweeps Too Broadly

In an opinion Friday, Judge Subramanian denied toymaker Wham-O’s renewed motion for an ex parte temporary restraining order against a slate of anonymous online sellers marketing “Hula Hoop”-labeled products, holding for the second time that Wham-O hadn’t shown a likelihood of success on its trademark claims given evidence in its own record suggesting the mark is generic.

In May, Judge Subramanian refused to grant the first requested TRO because Whamo-O failed to submit “the type of evidence that’s typically used to show whether a mark is generic, like dictionary usage, trade person testimony, or customer surveys.” And, he noted, some dictionaries indicate that “hula hoop” simply describes “the thing itself”—“a large plastic ring that you spin around your waist by moving your hips.” In other words, the mark may be generic.

Wham-O tried a different tack on its renewed motion: since HULA-HOOP is federally registered, it argued, the burden to prove genericness belongs to an accused infringer, not to Wham-O—and no accused infringer could carry the burden because the application was being brought ex parte. Judge Subramanian rejected the move, explaining that Wham-O’s own burden to justify emergency relief requires it to grapple with defenses the missing defendants would otherwise raise themselves:

Continue Reading Judge Subramanian: “Hula Hoop” May Be A Generic Descriptor Of The “Thing Itself,” Not Protectible As A Trademark

In an opinion today, Magistrate Judge Stein concluded that a party’s obligation to produce documents held by an attorney or other agent can require threat of termination as leverage to get an uncooperative agent to hand them over.

The discovery ruling arises out of Justin Sun’s suit against David Geffen over the sale of an Alberto Giacometti sculpture, Le Nez, which Sun claims was stolen and sold without his authorization by a nonparty, Sydney Xiong, whose current whereabouts are unknown. Central to Sun’s theory is a police report filed on his behalf in China—which Geffen contends is fabricated—by one Jeffrey Li, a “legal consultant” affiliated with the Shanghai Xi Zheng law firm. Geffen moved to compel production of Li’s own files relating to the report. Sun resisted, arguing Li was a nonparty in China over whom Sun had no real power: his counsel represented that “we have asked Li to produce materials” but “he declined,” and that all Sun could do was “ask.”

Judge Stein rejected that as a matter of law, holding that “control” imposes an affirmative obligation to use whatever practical influence the party actually has to obtain the documents:

Continue Reading Magistrate Judge Stein: Requirement To Produce Documents Under A Party’s “Control” Can Mean Threatening to Fire Your Own Lawyer

On Tuesday, Judge Carter granted summary judgment to defendants Granite State Insurance Company and Berkshire Hathaway Specialty Insurance Company against plaintiff KM Tactical, LLC in an insurance coverage suit. KM Tactical had sued defendants for coverage or indemnification against government lawsuits alleging that KM Tactical marketed and sold unfinished firearm frames and receivers used to assemble untraceable “ghost guns.” In these lawsuits, the State alleged that KM Tactical failed to impose controls on these sales and promoted its products in a way designed to attract customers seeking to evade firearms laws. KM Tactical allegedly knew, intended, or was willfully blind to the likelihood that the components would be converted into functioning unserialized guns. KM Tactical’s insurers, Granite State and BHSI, denied coverage.

Continue Reading Judge Carter: Ghost-Gun Retailer Not Entitled to Coverage of Lawsuits Brought by NY State Due to Foreseeable Harm

On Wednesday, Judge Cronan dismissed with prejudice X Corp.’s complaint against Letitia James, in her official capacity as Attorney General of New York, for failure to state a claim. X Corp. alleged that the Content Category Report Provisions of New York’s Stop Hiding Hate Act, which require X to publicly disclose its content-moderation policies, violate X’s First Amendment rights.

Continue Reading Judge Cronan: First Amendment “Poses No Obstacle” to New York Requiring Disclosure of X’s Content-Moderation Policies

On Friday, Judge Buchwald dismissed a proposed class action against online staffing agency Fiverr, an online platform connecting freelance service providers to customers. Three individuals alleged that Fiverr’s presentation of service fees is a deceptive practice under New York and California law. The plaintiffs claimed to have searched for and selected the services of a specific freelancer based on the pricing shown on the freelancer’s Fiverr page, only to be surprised by the addition of Fiverr’s service fee on the final checkout page.

The plaintiffs characterized Fiverr’s pricing as “drip pricing”, which they defined as “displaying one price for a good or service before adding one or more mandatory fees shortly before the consumer completes the transaction.” In recent years, the Federal Trade Commission has cracked down on “drip pricing”, also called “bait and switch pricing”, in the event ticket and rental housing markets.

Continue Reading Judge Buchwald: Online Staffing Agency’s “Drip Pricing” Model of Adding Service Fees at Check Out Is Not Deceptive