Judge Ramos: Text Message Exchange Doesn’t Satisfy Writing Requirement of Statute of Frauds

In an opinion yesterday, Judge Ramos ruled that a real estate broker could not recover a commission because the agreement was not in writing as required by the Statute of Frauds (under New Jersey law).

The broker tried to rely on a series of text exchanges, but Judge Ramos found that texts would suffice only if the client had written his name or otherwise “signed” the texts in some way: Continue Reading

Judge Failla Concludes That Kroger’s Updated Website Moots ADA Lawsuit Over Accessibility for Visually Impaired

In an opinion today, Judge Failla dismissed as moot an ADA lawsuit accusing the supermarket chain Kroger of operating a website that isn’t accessible for the visually impaired.  Kroger apparently addressed all the issues complained of.  There is a huge body of litigation in this area (see this article and this article, for example), but Judge Failla found that this was one of the rare cases where a mootness defense was raised and was compelling: Continue Reading

Judge Marrero Allows New York State Challenge to Federal Fintech Banking Charters to Proceed

Earlier this month, Judge Marrero denied a motion to dismiss a complaint brought by the New York State Department of Financial Services (DFS) against the U.S. Comptroller of the Currency (OCC).  The complaint challenged the Comptroller’s decision to begin issuing special purpose national banking (SPNB) charters to financial technology (“fintech”) companies that, among other things, exempted the companies from certain federal liquidity and capitalization standards.  DFS argued that the charters undermined New York’s ability to regulate and protect its financial markets.  The Comptroller moved to dismiss, arguing that DFS had not suffered an Article III injury, that the action was not ripe because no SPNB charter applications had been received from fintech companies yet, and that DFS failed to state a claim under the Tenth Amendment.

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Judges Furman and Carter Grant Habeas Petitions Requiring Individualized Bond Hearings for Detaining Awaiting Removal Hearings

In two opinions yesterday (here and here), Judges Furman and Carter concluded that Due Process requires timely, individual bond hearings, with the Government bearing the burden to show a risk of flight, for those awaiting removal hearings.

In the case before Judge Furman, the detainee has been held for 21 months with no hearing.  In a previous opinion (covered here), Judge Furman concluded that, given the “liberty interests” at stake, it was appropriate for the Government to bear the burden of proof.

While the Board of Immigration Appeals has a policy of putting the burden on the detainee, Judge Carter’s decision yesterday agreed with Judge Furman that the policy was inconsistent with Due Process: Continue Reading

Magistrate Judge Gorenstein: Attorney-Client Communications That Include Outside PR Firm Are Not Privileged

In an opinion this week, Magistrate Judge Gorenstein ruled that sharing attorney-client privileged communications with an outside public relations firm resulted in a waiver of the attorney-client privilege.  The plaintiff, Universal Standard, a manufacturer of “size-inclusive” clothing, filed a complaint against Target alleging trademark infringement.  After discovery, Target filed a motion asking the court to find that certain emails involving the plaintiff and its outside public relations firm, BrandLink, had been inappropriately listed on the plaintiff’s privilege log.

The court held that none of the exceptions for applying the attorney-client privilege to third-party communications were appropriate.  First, the court held that the communications with the PR firm were not “necessary” for outside’s counsel representation: Continue Reading

Trump Family Sues Banks to Prevent Compliance with House Subpoenas

In a complaint filed yesterday, President Trump, his children, and entities related to Trump family businesses sued two financial institutions to prevent them from responding to recent subpoenas issued by the House Permanent Select Committee on Intelligence and the House Financial Services Committee.  The subpoenas seek banking and financial records related to Trump family businesses;  according to the complaint, “the subpoenas were issued to harass President Donald J. Trump, to rummage through every aspect of his personal finances, his business, and the private information of the President and his family, and to ferret about for any material that might be used to cause him political damage.”

The complaint contains a single cause of action for declaratory and injunctive relief to prevent compliance with the subpoenas.  The case has been assigned to Judge Ramos.

Supreme Court Grants Cert in SDNY Case to Address Whether Sexual Orientation Discrimination Violates Title VII

Today, the Supreme Court granted certiorari in two consolidated cases raising the question of whether sexual orientation discrimination violates Title VII.

One of the cases is Zarda v. Altitude Express, Inc., in which Judge Failla applied, but heavily criticized, binding Second Circuit precedent disallowing such claims.  The Second Circuit, sitting en banc, ultimately reversed the precedent, finding that such claims could proceed.

Our coverage of the Zarda case is here.  Supreme Court filings are available at the SCOTUSblog page for the case, see here.

Magistrate Judge Parker Reminds Parties That Boilerplate Request for “All Documents” and Boilerplate Objections Are Not Allowed

In an opinion yesterday in a trademark case, Magistrate Judge Parker was critical of both sides to a discovery dispute for having issued boilerplate discovery requests and responses, in violation of the specificity contemplated by Rule 34: Continue Reading

Judge Cote: Software for “Dynamic” Tutorials Too Generic to Be Patented

In an opinion yesterday, Judge Cote concluded that a plaintiff’s software patent was not eligible for patent protection because it amounted to an abstract idea.  The patent covered a “method of creating a dynamically adaptable tutorial,” and, in essence, it described a method of linking website elements so as to facilitate, and easily update, online tutorials.  As Judge Cote explained: Continue Reading

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