Yesterday, Judge Schofield ruled that a claim for declaratory relief to prevent the White House and President Donald Trump from revoking or threatening to revoke White House press credentials could proceed.  The case was brought by PEN America Center, a nonprofit of association of media professionals, claiming that these threats chilled First Amendment rights for journalists (specifically CNN’s Jim Acosta) and also prevented PEN and its members from receiving information that would have been provided to the organization by these journalists.

The order found that the “Press Corps” claim, seeking declaratory relief on First Amendment grounds to prevent the White House from arbitrarily revoking press credentials, was properly pled: Continue Reading Judge Schofield: Claims Over White House Revocation of Press Credentials and Security Clearances May Proceed

Two complaints filed this week presented putative class action claims on behalf of former campaign field organizers hired by former New York City mayor and presidential candidate Michael Bloomberg.  The first complaint claims that the staffers were promised employment through the November 2020 presidential election (even if Bloomberg dropped out of the race), but were then terminated shortly after the March 4, 2020 “Super Tuesday” primaries.

The second complaint describes the situation as follows: Continue Reading Bloomberg 2020 Campaign Staffers Seek Promised Compensation in New Complaints

In an opinion today, Judge Swain concluded that it was “fair use” for to the makers of the NBA 2K video games to depict players’ tattoos (see our prior coverage here). Judge Swain had earlier concluded the fair use defense was not enough to dismiss the case on the pleadings, but, following discovery, today concluded that summary judgment was appropriate.  She found that the factors used in determining fair use all favored the video game maker. Continue Reading Judge Swain: Depicting NBA Players’ Tattoos in Video Game Is “Fair Use”

In the evolving coronavirus situation (see our prior posts here), SDNY has yet again tightened courthouse restrictions, with a new set of protocols effective tomorrow at 9:00 a.m.  In-person criminal matters are limited to new arrests, arraignments, bail appeals, and emergency matters, and spectators “will be required to sit in designated seats in order to preserve social distancing procedures.”

Civil matters “will proceed at the discretion of the individual Judge,” but “[i]n-court appearances will be limited strictly to Emergency Matters,” which “should be conducted by teleconference or (if the presence of witnesses is required) videoconference if possible.”

In an opinion Friday, Judge Schofield dismissed a RICO complaint alleging that “North Korean hackers stole $101 million from Plaintiff Bangladesh Bank’s New York Federal Reserve account and then transferred and dispersed the money to Defendants’ bank accounts and casinos in the Philippines.”

The central flaw was the lack of a “pattern” of racketeering activity, as opposed to one-off, more focused wrongdoing that would have to be pursued under legal theories other than RICO:

[The] malfeasors stole a single victim’s money from one location on a particular night and then dispersed the money to hide their tracks . . . .

That the money remains missing does not mean that Defendants would continue carrying out the crime. Indeed, money laundering by its nature involves moving money as far away as possible from the initial source and transferees to avoid discovery. The Complaint emphasizes the speed by which the funds passed through and out of Defendants’ hands. Plaintiff also argues that frustration of Defendants’ activities by the authorities does not mean there was no risk of future activities. But this argument assumes there was a risk. The Complaint does not provide any specific allegations of continuing or likely future activity by any Defendants.

Judge Schofield declined to assert supplemental jurisdiction over the other claims in the complaint, all of which arose under state law.

In an Order yesterday, Chief Judge McMahon, going beyond last week’s order, limited courthouse access to, essentially, those that have a concrete reason to be there in person.  Specifically, the Order allows only for the following groups to enter the courthouse:

  • Persons who have been ordered to appear by any judge of the Southern District of New York;
  • Persons who have been directed to appear by the Probation Office or by Pretrial Services;
  • Debtors, creditors and their attorneys who have case-related business before the Bankruptcy Court;
  • Government employees who work in the courthouse and are authorized to appear by their employer;
  • Contractors who are authorized to appear by the Office of the District Executive;
  • United States Postal Service mail carriers, private mail carriers and private delivery services;
  • Law enforcement personnel;
  • Credentialed courthouse press;
  • Family members of criminal defendants who are attending scheduled proceedings;
  • Persons with an interest in attending scheduled criminal trials;
  • Victims and their family members who are attending scheduled proceedings;
  • Jurors in ongoing trials and grand jurors; and Persons designated by the Chief Judge of the United States Court of Appeals for the Second Circuit.

The New York Post is reporting today that the SDNY is suspending all jury trials scheduled to begin next week, based on concerns over the spread of the caronavirus.  [Update: The Order suspending jury trials is here, and it also states that judges “are strongly encouraged to conduct court proceedings by telephone or video conferencing where practicable.”]

In addition, a review of the dockets shows that, for the same reason, several SDNY judges are adjourning in person appearances or converting them to phone conferences, including, for example, Judge Wood (adjourning hearing), Magistrate Judge Cott (adjourning hearing), Judge Caproni (adjourning pretrial conference), and Magistrate Judge Smith (changing initial conference to phone conference).

Chief Judge McMahon issued a Notice to the Bar today barring entry into the courthouses by various people at risk for spreading the coronavirus, including:

  • People who in the prior two weeks have visited China, South Korea, Japan, Italy or Iran
  • People in close contact with people who have traveled to those countries
  • People who are under self-quarantine
  • People with “fever, cough or shortness of breath”

Earlier today, the Second Circuit reversed a decision by Judge Ramos that had invalidated an executive order targeting “sanctuary cities” that did not cooperate with federal law enforcement on immigration issues (see our previous coverage here).

Judge Ramos had held that the order was arbitrary and capricious under the Administrative Procedures Act, and impinged on the powers of state and local governments.  The Second Circuit disagreed, noting that the federal government has broad power to enforce immigration policy: Continue Reading Second Circuit Reverses Judge Ramos on “Sanctuary Cities,” Allows Executive Order Cutting Funding

In an order last week, Judge Sullivan (sitting by designation in the Southern District) dismissed claims brought by former Knicks star Charles Oakley against Knicks owner James Dolan and several Madison Square Garden entities.  The complaint alleged a claim for defamation as well as several state law tort claims, all stemming from a 2017 incident at Madison Square Garden where Oakley was forcibly removed from the stands during a Knicks game by the arena’s security.  After the incident, Dolan and the Knicks’ official Twitter account made several statements that Oakley claimed were defamatory, including claims that Oakley had been “drinking beforehand” and that he “behaved in an highly inappropriate and completely abusive manner.”

A key deficit for the defamation claim was the lack of actual malice:

A public figure cannot recover damages for defamation unless he proves, by clear and convincing evidence, that the relevant statements were made with actual malice at the time that they were spoken or written.  A statement is made with “actual malice” where it is made “with knowledge that the statement[] [is] false or with reckless disregard as to [its] falsity . . . Oakley fails to satisfy this requirement.  Indeed, he does not offer any facts beyond the conclusory allegations that the MSG Defendants or Dolan acted with actual malice.  The Amended Complaint asserts repeatedly that the MSG Defendants and Dolan were “fully aware that [their] comments were and are entirely without basis in fact and/or” that their comments were made with “a reckless disregard for their truth.”  But the Amended Complaint does not provide any factual grounds to support those conclusory allegations.  These are they type of “labels and conclusions” and “formulaic recitation[s] of the elements of a cause of action” that must be disregarded under Iqbal and Twombly.

Judge Sullivan also dismissed the state law tort claims, as well as the Americans with Disabilities Act claims that Oakley was denied access to Madison Garden Square (a place of public accommodation) based on what the defendants perceived was the disability of alcoholism.  Judge Sullivan also denied Oakley leave to amend, citing Judge Lynch’s observation that “[w]hile pleading is not a game of skill in which one misstep may be decisive to the outcome, neither is it an interactive game in which the plaintiffs file a complaint, and then bat it back and forth with the Court over a rhetorical net until a viable complaint emerges.”