Cardozo Law Review Publishes Special Issue On Litigation Costs, Inspired by Judge Marrero Essay

The Cardozo Law Review has published a special issue, inspired by a 2016 essay from Judge Marrero entitled The Costs of Rules, the Rule of Costs, focusing on the way modern practice and procedure have needlessly made litigation so expensive and slow.  The special issue includes (among other things) a follow up article from Judge Marrero entitled Motion to Dismiss: A Dismissal of Rule 12(b)(6) and the Retirement of Twonbly/Iqbal, proposing various reforms, including severely limiting motions to dismiss that are aimed at the factual sufficiency of the allegations (as opposed to dispositive legal theories).  Judge Marrero argues that the wastefulness that inspired the adoption of the Federal Rules in 1938 (which ushered in the simple, notice pleading standard) has reappeared in a different form in today’s practice: Continue Reading

Judge Ramos Strikes Down Executive Order Targeting “Sanctuary Cities”

In an opinion Friday, Judge Ramos, concurring with other federal courts in Pennsylvania, California and Illinois, found that an Executive Order in July 2017 aimed at so-called “sanctuary cities” was unlawful.  The Executive Order conditioned certain federal funds for state and local government law enforcement-related programs (such as drug treatment or witness programs) on those governments cooperating in various specific ways with federal enforcement of immigration laws.

Judge Ramos concluded (among other things) that the conditions were arbitrary and capricious, in violation of the Administrative Procedure Act: Continue Reading

“Enough is Enough”: Judge Furman Denies Government’s 12th Attempt to Stay Census Citizenship Question Case

In the ongoing saga of New York State’s attempt to prevent a citizenship question from being added to the 2020 Census, Judge Furman has yet again denied an attempt to stay the proceedings pending review by the U.S. Supreme Court.  The request yesterday came on the heels of a request just before the trial in the case (see our coverage here).  According to the opinion, the present request was the twelfth time in as many weeks that the defendants had asked the district court, the Second Circuit, or the Supreme Court to stay the case, a number Judge Furman referred to as “astonishing.”

Judge Furman found that, given the trial in the case was already complete, defendants had little ground to stand on in asking for a stay:

Tellingly, this time, Defendants do not even attempt to argue that they are entitled to the extraordinary relief of a stay of all proceedings under the traditional factors.  That is not surprising, as Defendants cannot satisfy any of the four factors, substantially for the reasons set forth in Plaintiffs’ opposition to the motion, filed earlier today.  Among other things, as the Court stressed last time, the traditional test requires that Defendants show they would suffer “irreparable harm” absent a stay.  Defendants could not make that showing before trial, and they certainly cannot make it now. In fact, the words “harm” and “injury” do not appear anywhere in their motion. That is for good reason, as the notion that they — or anyone else — would suffer “irreparable harm” without a stay is laughable. The only “harm” Defendants suffer from denial of a stay is that they would be required to complete and file their post-trial submissions (which are due tomorrow and, presumably, almost done), and to appear for oral argument on November 27, 2018. As the Court has noted before, however, “‘[m]ere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury.’”

Our full coverage of the case is here.

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

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

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

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

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

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

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

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

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