Supreme Court Grants Cert in Case Over Census Citizenship Question; Government Asks to Halt SDNY Proceedings

By Charles Michael on Posted in SDNY Blog

On Friday, the Supreme Court, as expected, granted certiorari in the challenge pending before Judge Furman over the addition of a citizenship question to the census.  The question presented concerns whether it is appropriate to order discovery outside the administrative record (such as the deposition Judge Furman had earlier ordered of Commerce Secretary Wilbur Ross).

Judge Furman recently completed a bench trial in the case.  The Government this morning asked Judge Furman to halt all further proceedings, but recognized that Judge Furman already indicated he “intends to differentiate findings of law and fact that are based solely on the administrative record and those that are based on extra-record evidence.”   In response, Judge Furman issued a text-only order asking the plaintiffs to file a letter with their position by tomorrow.

Our posts on the case are here.

Judge Cote Rejects SEC Defendants’ Attempt to Delve Into Stale, Highly Personal Affairs of SEC Witness

By Charles Michael on Posted in SDNY Blog

In an opinion today, Judge Cote denied a motion to compel brought by the defendants in an SEC enforcement action relating to one of the SEC’s witnesses.  The defendants claimed that the witness gave inaccurate deposition testimony about having been disciplined at work for having harassed a former romantic partner, and so wanted more documents about the incident, and an additional deposition.  Judge Cote, who chose not to identify the witness by name, emphatically denied the motion: Continue Reading

Judge Gardephe: Courts Can’t Force Nonparty Insurers to Mediate

By Charles Michael on Posted in SDNY Blog

In a handwritten memo endorsement today, Judge Gardephe denied a plaintiff’s request to force the defendants’ insurers to participate in mediation, concluding that the Court lacked the power to direct the actions of a nonparty:

The Carriers are not parties before this Court. If Defendants believe that the Carriers are not meeting their responsibilities under the D + O policies, their remedy is to sue the carriers.

Girls Scouts: Boy Scouts’ New Inclusion of Girls, and Use of Gender Neutral Term “Scouts,” Violates Trademark Laws

By Charles Michael on Posted in SDNY Blog

In a complaint Tuesday, the Girl Scouts sued the Boy Scouts for trademark infringement and unfair competition, arising from the Boy Scouts’ recent decision to include girls, and to use gender-neutral terms like “scout,” that will allegedly confuse the public.  From the complaint’s introduction: Continue Reading

Judge Oetken Enjoins “AlibabaCoin” from Using Alibaba Group’s Marks; Finds Personal Jurisdiction Over Cryptocurrency Transactions Made Using Blockchain in Belarus

By Michael Keough on Posted in SDNY Blog

In an order last week, Judge Oetken granted a preliminary injunction to prevent the purveyors of the cryptocurrency “AlibabaCoin” from continuing to use the marks of Alibaba Group, the global e-commerce company based in China.  According to Alibaba Group, defendants “published a variety of promotional materials that impermissibly use Alibaba’s trademarks in an effort to align AlibabaCoin with Alibaba in the minds of potential consumers.”

Notably, Judge Oetken addressed whether cryptocurrency transactions purportedly occurring in Belarus could be subject to personal jurisdiction in New York by analogizing cryptocurrency to debit card transactions: Continue Reading

New Complaint Alleges Trump Family Defrauded Would-Be Entrepreneurs Through Multi-Level-Marketing Scheme; Plaintiffs Move to Sue Under Pseudonyms

By Michael Keough on Posted in SDNY Blog

A complaint filed today alleges 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.  According to the complaint, the members of the purported class invested in the multi-level-marketing scheme by paying fees and purchasing training sessions that would allow them to sell ACN’s products (which included an obsolete “video phone”).  ACN events featured prominent Trump endorsements of the scheme, allegedly without revealing that Trump was being compensated for his endorsement or that investing in the scheme came with high risk and was unlikely to result in any return to the investors (with costs at some times exceeding returns by a factor of ten to one).

The complaint includes federal RICO claims as well as state law and common law claims.

The plaintiffs are three individuals (and putative class representatives) who have also just filed a motion to proceed under pseudonyms.  Their motion begins: Continue Reading

Judge Furman: Census Trial Will Proceed Next Week Despite SCOTUS Order on Ross Deposition

By Michael Keough on Posted in SDNY Blog

In the ongoing saga of New York State’s challenge to the U.S. Census question on citizenship (see our previous coverage here), Judge Furman has rejected the Department of Commerce’s 11th hour attempt to delay the trial in the case currently scheduled to begin on November 6.   Citing “the defendants’ own urgent need for finality,” Judge Furman found that the Department of Commerce failed to show any irreparable harm should the trial proceed as planned, noting that they had already “conced[ed], as a procedural matter, that a trial is appropriate” by electing not file a summary judgment motion, at the Court’s invitation, which could have argued that the case be decided on the administrative record without a trial.

The U.S. Supreme Court’s recent order preventing the deposition of Secretary of Commerce Wilbur Ross loomed large in Judge Furman’s decision: Continue Reading

Judge Engelmayer: Copyright Damages from Brief Display of Plaintiff’s Art in Kendrick Lamar Music Video Are Not Inherently Speculative

By Charles Michael on Posted in SDNY Blog

In an opinion Wednesday, Judge Engelmayer denied a motion by musician Kendrick Lamar (and other defendants) for partial summary judgment in a copyright case brought by an artist claiming that his work was displayed without authorization in the music video “All the Stars” from the Black Panther movie.

The plaintiff hadn’t registered his work and so wasn’t eligible for statutory damages.  The defendants argued that any actual damages — profits gained from the alleged wrongdoing — were inherently too speculative, and should be rejected even before discovery: Continue Reading

Supreme Court Temporarily Halts Wilbur Ross Deposition; Hints That It Will Grant Cert on the Issue

By Charles Michael on Posted in SDNY Blog

In an Order this evening, the Supreme Court issued a temporary stay of any deposition of Commerce Secretary Wilbur Ross in the case challenging the constitutionality of adding a question about citizenship status to the 2020 U.S. census questionnaire.  Judge Furman had ordered the deposition to go forward (see our coverage here).  The stay is in effect until Monday, but, if there is a mandamus or certiorari petition filed before then, will continue until the petition is resolved.

Justice Gorsuch, joined by Justice Thomas, issued a short concurrence and dissent from the Order, calling the matter to be explored at the deposition — Secretary Ross’s alleged bad faith motives in adding the citizenship question — “highly unusual, to say the least.”  They added: “Leveling an extraordinary claim of bad faith against a coordinate branch of government requires an extraordinary justification.” Accordingly, they would have stayed the entire case.

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

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