Second Circuit Revives Emoluments Case Against President Trump, Creating Circuit Split

By Jason Meade on Posted in SDNY Blog

Friday morning, the Second Circuit vacated the district court’s dismissal of a suit challenging President Trump’s business dealings under the Foreign and Domestic Emoluments Clauses of the U.S. Constitution.  (See our prior coverage here.)  In December 2017, Judge Daniels found that Plaintiffs had failed the causation and redressability prongs of the Article III standing inquiry, and lacked prudential standing because they fell outside the “zone of interests” that the Emoluments Clauses were intended to protect.

In a 2-1 decision, the Second Circuit held that Plaintiffs had satisfied the requirements for standing: Continue Reading

Group of States Challenge SEC Rule Setting Standard of Care Broker-Dealers Owe Customers

By Charles Michael on Posted in SDNY Blog

In a complaint filed this week, a group of seven states (plus the District of Columbia) sued the SEC for having adopted a rule that allegedly does not comply with the mandate in the 2010 Dodd-Frank law for broker-dealers to make recommendations “without regard to” the broker-dealers’ own interests, similar to the fiduciary obligation investment advisers owe their clients.

The standard the SEC adopted instead — that broker-dealers cannot put their interests “ahead of the interest of the retail customer” — is below the standard required by law, according to the complaint, for multiple reasons: Continue Reading

Audiobook Captions Are Unauthorized Reproductions, Argue Publishers

By Jason Meade on Posted in SDNY Blog

Last week, seven major publishers filed a lawsuit claiming that a new captioning service offered by audiobook company Audible, Inc. violates copyright law.  The “Audible Captions” feature transcribes the narration from the audiobook and displays the text on-screen, so that listeners-slash-readers can follow along in real time.  Although previous Audible offerings have allowed users to read and listen to a book simultaneously, those features required users to separately purchase both the audiobook and the e-book.  The publishers allege that the captions are unauthorized reproductions of the copyrighted text, and would require a separate license.  In a statement, Audible denied that the feature violated any rights, and said that it “is not and was never intended to be a book.”

The case is currently pending before Judge Caproni.  Audible has agreed to delay implementation of the captions feature until the court rules on the publishers’ motion for a preliminary injunction.

Judge Pitman: Passenger Booted Off Plane, Allegedly for Ignoring Exit Row Briefing, Can Proceed to Trial of Breach of Contract Case

By Charles Michael on Posted in SDNY Blog

In a decision yesterday, Magistrate Judge Pitman denied summary judgment to Spirit Airlines, which was sued by a pro se passenger who claims to have been improperly booted off a flight for having ignored the exit row briefing.

Judge Pitman noted that the “parties’ versions of the material events are substantially different.”  According to Spirit, the passenger refused to hang up his cell phone when the briefing started, and then became combative.  According to the passenger, he was texting, but stopped when asked.  It was the flight crew that became combative, he claims, and so he left the plane because he was “afraid.” Continue Reading

Champion Boxer Asks Judge Castel to Set Location for Title Bout Rematch

By Michael Keough on Posted in SDNY Blog

In a complaint filed this week, the promoter representing former heavyweight boxing champion Anthony Joshua has sought a declaratory judgment allowing Joshua’s promoter to select the site of a rematch bout with reigning champion Andres Ruiz.  According to the complaint, Ruiz was asked to serve as a last-minute substitution for a June 1, 2019 fight against Joshua at Madison Square Garden when the original challenger dropped out.  According to the complaint, Ruiz and his promoter agreed that, if Ruiz prevailed, Joshua’s promoter could request a rematch within seven months at a time and place of Joshua’s promoter’s choosing.  Ruiz won a dramatic upset, and Joshua’s promoter asked for a rematch to be held in Saudi Arabia.  Based in part on alleged tweets by Ruiz saying that he would only participate in a rematch in the United States, Joshua’s promoter now seeks a declaratory judgment on the issue of where the rematch will occur.

The complaint contains causes of action for breach of contract and anticipatory breach of contract.

The case is currently pending before Judge Castel.

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

By Charles Michael on Posted in SDNY Blog

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

By Charles Michael on Posted in SDNY Blog

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

By Michael Keough on Posted in SDNY Blog

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.

Continue Reading

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

By Charles Michael on Posted in SDNY Blog

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

By Charles Michael on Posted in SDNY Blog

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

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