In a new complaint yesterday, plaintiffs that operate the food delivery platforms DoorDash, Caviar, Grubhub, Seamless, Postmates, and Uber Eats sued the City of New York to challenge caps on fees that these platforms can charge restaurants to use their services.  The caps – at 15% of an online order for delivery services, and 5% for all other services (such as marketing) – were originally enacted as a temporary measure at the beginning of the COVID-19 pandemic when restaurants were forced to close for in-person dining.

The suit takes issue with the City’s decision to extend these caps indefinitely: Continue Reading Food Delivery Platforms Challenge City-Imposed Caps on Fees

In an opinion Friday, Judge Caproni refused to enforce a disputed settlement of a trademark case that had been pending before her. The case was dismissed when the parties reported they had settled. The alleged settlement was not reflected in any court order.  And when apparent settlement fell apart, the plaintiff asked Judge Caproni to re-open the case so as to enforce the settlement. But Judge Caproni found that the request effectively asked her to assert supplemental jurisdiction over a breach of contract claim: Continue Reading Judge Caproni: Jurisdiction Over Case Doesn’t Mean Jurisdiction to Enforce Disputed Settlement

In an opinion Monday, Judge Castel allowed (in part) defamation claims to proceed against the makers of the film, “When They See Us,” about the “Central Park Five.” The first sentences of the opinion summarize the context: “On the night of April 19, 1989, a young woman was viciously beaten and raped in Central Park. Five young men of color (the ‘Five’), ranging in age from 14 to 16, were arrested, tried and convicted for the attack. They were exonerated in 2002, after the confession of a man whose DNA matched a sample found near the victim.”

The case was brought by one of the prosecutors, Linda Fairstein, who is “portrayed as the central villain” in the film. Judge Castel explained that, while the film dramatized certain of the events, viewers would still understand it as conveying the “essence” of what really happened, and thereby capable of defaming someone if that portrayal were untrue: Continue Reading Judge Castel: “Docudrama” Over Central Park Five Can Be The Subject of Defamation Claims

Last week, the Second Circuit affirmed Judge Schofield’s decision last year to to deny the motion by Donald Trump, the Trump Corporation, and other Trump family members to compel arbitration of claims related to the multi-level marketing scheme ACN (see our previous coverage here).  Defendants argued that, because the plaintiffs had agreed to arbitrate any claims they might have against ACN, the same arbitration clause should force arbitration of any claims against the Trump defendants related to their endorsement of ACN.

The Second Circuit agreed that equitable estoppel did not apply: Continue Reading Second Circuit Affirms Judge Schofield’s Denial of Motion to Compel Arbitration for Trump-Related Multi-Level Marketing Scheme Claims

In an important copyright ruling today, Judge Rakoff ruled that “embedding” material online — in this case, a news organization embedding in an article a video of a polar bear that the plaintiff posted on Instagram — could violate the copyright laws. He rejected the “server rule” by which there could only be infringement in cases where the defendant makes a copy of the image or video to display from its own server.  Under the server rule, merely embedding the material (essentially, displaying the material via the original source) cannot be infringement.

Judge Rakoff found that the server rule was “contrary to the text and legislative history of the Copyright Act”: Continue Reading Judge Rakoff Finds that “Embedding” Photos and Videos Online Can Infringe Copyrights, Rejecting “Server Rule”

In an opinion today, Judge Cronan granted summary judgment to Sacha Baron Cohen (and other defendants) in a case over his interview of Roy Moore, the former Chief Justice of the Alabama Supreme Court, that was broadcast as part of the television show “Who is America?“.

Judge Cronan ruled that the claims against Cohen and others were barred by a waiver that Moore had signed, and that, in addition, claims by Moore’s wife — for international infliction of emotional distress — were barred by the First Amendment.

For purposes of the First Amendment analysis, Judge Cronan found that the interview, in which Cohen played the role of an Israeli “Anti-Terrorism Expert” named “Gen. Erran Morad,” was obvious satire, and was not making factual assertions about Moore:

In light of the context of Judge Moore’s interview, the segment was clearly a joke and no reasonable viewer would have seen it otherwise. The segment began with an absurd joke (i.e., “Gen. Erran Morad” boasting about once killing a suicide bomber with an iPad 4, but luckily he had purchased AppleCare), followed soon by footage of numerous news reporters commenting on the accusations brought against Judge Moore.

At this point, it should have been abundantly clear to any reasonable viewer that Defendants were using humor to comment on those accusations, rather than making independent factual assertions or even remarking on the truth or accuracy of the allegations.

The actual interview of Judge Moore then became even more absurd. No reasonable viewer would have interpreted Cohen, in his over-the-top “Erran Morad” character, waving a wand that supposedly detects enzymes emitted by pedophiles in the vicinity of Judge Moore as stating facts about Judge Moore. Nor would a viewer have reasonably believed that this gadget—which “Erran Morad” contended also was able to detect hidden tunnels used by terrorists—doubled as a device that also could detect enzymes secreted by pedophiles.

 

In an opinion Tuesday, Judge Marrero allowed a putative consumer fraud class action to proceed (in part) against Canada Goose.  The plaintiff purchased a jacket that he claims was falsely marketed with a paper hang tag stating that the company supports the “ethical, responsible, and sustainable sourcing and use of real fur.”  Judge Marrero rejected the company’s argument that these statements were “too general and subjective” to be actionable, and instead found that the allegations, though “thin,” were enough to proceed beyond a motion to dismiss: Continue Reading Judge Marrero Allows Consumer Fraud Claims Over Jackets Marketed as Made with Ethically-Sourced Fur

In a pair of opinions Monday, Judge Cote dismissed two putative class actions, one brought by college textbook retailers (opinion here) and another brought by students (opinion here), accusing textbook publishers and on-campus bookstore operators of violating the antitrust laws. The cases alleged an unlawful conspiracy involving a digital program called Inclusive Access that provides students automatic access to course materials when they register for class and bills their bursar account (unless they opt out).

In both cases, Judge Cote found that there were no plausible allegations of an anticompetitive agreement, or conspiracy, among the defendants, because there were ample independent reasons to pursue a digital strategy: Continue Reading Judge Cote: College Textbook Publishers Did Not “Conspire” to Steer Universities to Requiring Digital Books

In an opinion last week, Judge Schofield granted summary judgment, in part, to the restaurant chain Boston Market in case “alleging that Defendants breached the implied warranty of merchantability when they served her a meal containing what she believes to be a baby chicken.”

The dispute boiled down to whether the item of food (depicted below) was a baby chicken, or instead a somewhat unusual looking chicken leg.

Continue Reading Judge Schofield Shrinks Down Case Over Boston Market “Baby Chicken” to $11.63