Last week, Judge Liman allowed certain claims against Peloton to proceed based on allegations that Peloton lured customers with promises of an “ever-growing” library of classes that had in reality been cut in half in the preceding months.

Peloton argued that its Terms of Service shielded it from the claim, but Judge Liman disagreed:

Defendant argues that because Plaintiffs agreed to these terms when they subscribed to Peloton’s service, Defendant cannot be held liable for deceptive practices for conduct authorized by the terms. According to Defendant, even if the “ever-growing” statement was deceptive, the Terms of Service overcome the deception because Peloton reserved the right to remove content at any time. Nor can Defendant be held liable for its failure to disclose the purportedly inevitable class removals, for the same reason. Defendant points to a number of cases that it argues support the proposition that New York courts dismiss claims under the NYGBL where the defendant expressly disclosed its right to take the actions of which a plaintiff complains.

Defendant’s arguments are based on a non-sequitur. Peloton’s Terms of Service may have protected it from a breach of contract or similar claim for the removal of a particular class or group of classes. However, the Terms of Service do not relieve Peloton from a deceptive marketing claim based on the allegation that Peloton advertised its library as ever-growing while knowing that it would be diminishing or shrinking in size.

Continue Reading Judge Liman Refuses to Dismiss Complaint Accusing Peloton of Deceptive Advertising for Touting “Ever Growing” Library of Classes

This week, the Second Circuit issued two orders reversing in part the district court’s decision dismissing claims brought by former Knicks player Charles Oakley, 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 (see our previous coverage here).

The Second Circuit concluded that the allegations of excessive force were best left for a jury to decide: Continue Reading Second Circuit Allows Charles Oakley’s Assault and Battery Claims to Proceed, But Agrees Defamation Claims Should Be Dismissed

Last week, a group of plaintiffs filed a complaint against federal agencies (including the Department of Health and Human Services and the Centers for Disease Control and Prevention) challenging the federal government’s handling of information reporting related to the COVID-19 pandemic.  The plaintiffs include a public charter school, a non-profit health and housing group, a New York City councilmember, and a medical student.  According to the complaint, the Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2019 mandated the creation of a “biosurveillance network” to provide information on the progress of public health emergencies like the COVID-19 pandemic, but the agencies tasked with creating and maintaining the network have failed to carry out their biosurveillance duties, failing to adequately report information, and failing to involve the public in policymaking decisions (as required by the law): Continue Reading NYC Plaintiffs Challenge Federal COVID-19 Information Reporting in New Suit

In an opinion Tuesday, Judge Kaplan denied the Justice Department’s motion to substitute the United States for Donald Trump as the defendant in a defamation suit against the president in his individual capacity. The plaintiff, E. Jean Carroll, published a book excerpt in 2019 alleging that Trump raped her in the mid-1990s. Trump told the press that Carroll made the story up, and Carroll sued him for defamation. The Justice Department intervened, arguing that the lawsuit was really one against the United States because Carroll had sued an “employee” of the United States for actions within the scope of his employment.

Judge Kaplan held that the president is a constitutional officer rather than a government “employee,” and that the allegedly defamatory statements were not made within the scope of his employment because, as the chief executive of the United States government, no one else has the power to control his conduct: “To hold that someone else exercises control over the president would turn the Constitution on its head.” On this point, Judge Kaplan continued:

Continue Reading Judge Kaplan Rejects Justice Department’s Attempt to Intervene on Trump’s Behalf in Defamation Suit

In an opinion Wednesday, Judge Engelmayer largely granted the plaintiffs summary judgment in a case challenging New York City’s failure to make signalized intersections accessible to the blind. Only a small percentage of intersections have Accessible Pedestrian Signals, which “are devices that communicate ‘walk’ and ‘don’t walk signals to pedestrians in a non-visual format, through audible tones, speech messages, and/or vibrating surfaces.” This makes crossing the street in New York “harrowing” and “dangerous” for those who are blind or visually impaired: Continue Reading Judge Engelmayer: City’s Crosswalks Do Not Provide Meaningful Access to the Blind, Violating ADA

In an opinion Friday, Judge Failla ruled that Venezuela’s state oil company was required to pay certain bonds, despite the Venezuela National Assembly having declared last year that the bonds violated the Venezuelan Constitution.  The declaration occurred against the backdrop of a power struggle in the Venezuelan government. The National Assembly’s President Juan Guaidó has been recognized by the United States as the Interim President of Venezuela, over the competing claims of Nicolás Maduro (see our prior coverage here).

Under the doctrine of international comity, the Court could have deferred to the National Assembly’s declaration, particularly if the Executive Branch supported that view. But the Executive Branch was “non-committal” in this case, and so the Court was “left to determine for itself whether it should extend comity to the National Assembly’s actions.”

Judge Failla ultimately concluded that the bonds should be enforced because, accepting a rule to the contrary would invite other governments to shortchange legitimate creditors after-the-fact: Continue Reading Judge Failla: Venezuela Cannot Void Bonds Based on Alleged Illegality Under Venezuelan Law

In an opinion today, Judge Vyskocil granted Fox News’s motion to dismiss a defamation claim centered on an episode of Tucker Carlson Tonight. In the episode, Carlson was responding to President Trump’s lawyer Michael Cohen having pleaded guilty to campaign finance violations for arranging to pay settlements to two women alleged to have had affairs with Trump. Carlson was critical of media suggestions that Trump should be impeached or held criminally responsible for the payments:

Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money. Now, that sounds like a classic case of extortion. Yet, for whatever reason, Trump caves to it, and he directs Michael Cohen to pay the ransom. Now, more than two years later, Trump is a felon for doing this. It doesn’t seem to make any sense.

Judge Vyskocil ruled that, in context, this was not a literal accusation of extortion, but intended to frame the debate in the guest commentary segment that followed: Continue Reading Judge Vyskocil: Tucker Carlson’s “Extortion” Jab Was Hyperbole, Not Defamation

In an opinion today, a three-judge SDNY panel comprised of Judge Furman and Circuit Judges Wesley and Hall invalidated a Presidential memorandum which stated that, in apportioning Congressional seats, “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” (The three-judge structure was triggered by 28 U.S.C. § 2284(b), which governs cases about Congressional apportionment.)

The panel concluded that the memorandum conflicted with a statutory mandate to apportion Congressional seats based on the census results alone: Continue Reading Three-Judge SDNY Panel Invalidates President Trump’s Directive to Exclude Undocumented Immigrants in Apportioning Congressional Seats

On Friday, Judge Rakoff denied cross-motions for summary judgment in Sarah Palin’s defamation lawsuit against the New York Times. (See our earlier coverage here.) Palin argued that the “actual malice” standard for defamatory statements against public figures was no longer good law or did not apply to this case, while the Times argued that no reasonable jury could find that the allegedly defamatory statements were published with actual malice. The case will proceed to trial next Februrary.

Continue Reading Judge Rakoff Clears Sarah Palin’s Defamation Lawsuit Against NY Times for February Trial

In a 103-page opinion, Judge Marrero rejected President Trump’s latest attempt to block a grand jury subpoena issued to Trump’s accounting firm by Manhattan District Attorney Cyrus Vance. In July, the Supreme Court ruled 7-2 that Trump could not obtain injunctive relief based on an assertion of categorical immunity from criminal process while in office. (See our previous coverage here.) On remand, Trump argued that the subpoena was overbroad and issued in bad faith.

Dismissing the amended complaint, Judge Marrero found that “the filing of the [amended complaint] to assert claims and reargue issues substantially addressed in earlier proceedings would prolong the President’s noncompliance with the grand jury’s demand for the documents in dispute.” Continue Reading Judge Marrero Upholds Manhattan District Attorney’s Subpoena for Trump Tax Records