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Charles Michael is an accomplished commercial litigator who resolutely defends clients in high stakes disputes and arbitrations. He is also experienced in regulatory and criminal investigations, and represents clients under investigation by the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), the Commodity Futures Trading Commission (CFTC), and the Department of Justice (DOJ).

In an opinion yesterday, Judge Liman granted — albeit with clear reluctance — the government’s motion to dismiss a case brought by former Trump attorney Michael Cohen against various government offices who allegedly retaliated against him for planning to publish a book critical of former President Trump.

Cohen was placed on furlough during his prison sentence, but then suddenly, while negotiating the terms of a transition to home confinement with probation officials, was remanded to prison.

In July 2020, Judge Hellerstein granted Cohen release via an Order stating:

The Court finds that Respondents’ purpose in transferring Cohen from release on furlough and home confinement back to custody was retaliatory in response to Cohen desiring to exercise his First Amendment rights to publish a book critical of the President and to discuss the book on social media.

In the case before Judge Liman, Cohen was suing for damages, primarily by asserting so-called Bivens claims against the federal government. Judge Liman found that the Supreme Court’s more recent interpretations of Bivens — essentially that no Bivens claim can proceed if by statute there is any other remedy, no matter how small — barred Cohen’s lawsuit.

But Judge Liman noted that the result worked a form of “violence” to Cohen’s constitutional rights:

Continue Reading Judge Liman Laments Supreme Court Precedent Barring Damages Remedy For DOJ’s Retaliation Against Michael Cohen for Planned Book About Trump

In an opinion Friday, Judge Abrams approved an SEC settlement, but wrote that she would “not do so silently,” because she found highly “troubling” the SEC’s standard, non-negotiable provision requiring that the defendant not make “any public statement denying, directly or indirectly, any allegation in the complaint or creating the impression that the complaint is without factual basis”:
Continue Reading Judge Abrams Harshly Criticizes SEC’s “Lifetime Gag” Settlement Requirement

In an Order Monday, Judge McMahon chided a group of defendants for “asking for permission to file almost everything in support of their motion for summary judgment and motions to exclude testimony of plaintiff’s various experts under seal.”

Referring to the required confidentiality stipulation “addendum” in her Individual Practices — which states “that confidentiality stipulations are abused by parties and that much material that is not truly confidential is designated as such” — Judge McMahon directed the defendants to instead evaluate confidentiality with a more careful, line-by-line approach:
Continue Reading Judge McMahon: “Most” Discovery Designated Confidential is Not; Oral Argument on Summary Judgment “Rarely” Necessary

In an endorsement today, Judge Schofield declined to postpose a major antitrust trial, despite lead counsel for a bank testing positive for COVID, given that counsel’s firm had several other lawyers available. The endorsement, in full, reads:

It is unfortunate that defense counsel has tested positive for COVID, but the circumstances warrant proceeding with the

In an opinion last week, the Second Circuit, reversing a decision by Judge Furman (covered here), held that Citibank could sue to recoup almost $500 million that it had sent, in error, to certain lenders of a struggling borrower, Revlon.

Citibank was the administrative agent for the loans, and, based on a technical error, wired the full principal balance (nearly $900 million) before the maturity date. Judge Furman applied the “discharge for value” defense to conclude that even a mistaken payment need not be returned where it pertains to a valid debt.

The Second Circuit concluded, however, that the defense is inapplicable so long as the recipient is on “inquiry notice” of the mistake. Inquiry notice was shown by the fact that there was no prior notice of any loan repayment, as the transaction documents required, and by the fact that Revlon was not expected to have the funds to repay:
Continue Reading Second Circuit: Citibank Can Recoup $500 Million Accidental Debt Repayment

In an opinion today, Judge Woods ruled, in essence, that retweets are not endorsements. The ruling came in connection with a denial of CNN’s motion for reconsideration in a case brought by two family members of former National Security Advisor Michael Flynn. The court had previously ruled that the plaintiffs’ false light claim against CNN could proceed, based on a CNN report that suggested the plaintiffs were followers of the conspiracy group QAnon.

Judge Woods rejected the argument (initially accepted in a report and recommendation by Magistrate Judge Cave) that the plaintiffs’ “likes” and “retweets” of pro-QAnon tweets rendered the association with QAnon substantially true:
Continue Reading Judge Woods: Retweets Are Not Endorsements

In a trademark infringement complaint filed on Monday, Liberty Tax Service sued the makers of the TV show “Better Caul Saul” for depicting an allegedly similar business, “Sweet Liberty Tax Services,” as essentially a criminal enterprise:
Continue Reading Tax Preparation Firm Sues the Makers of “Better Caul Saul” For Depiction of Similarly-Named, but Crooked, Fictional Firm

In an opinion last week in a Fair Labor Standards Case, Judge Engelmayer reduced the requested fee award for plaintiffs’ counsel from $155,000 down to approximately $5,000. The plaintiffs had prevailed, but only as to a narrow aspect of the claim. After the liability verdict in the plaintiffs’ favor (in part), their counsel asked for a fee award without bothering, until prompted by Judge Engelmayer, to request damages for the plaintiffs themselves.

Judge Engelmayer explained that the fee reduction was justified because, inter alia, “plaintiffs’ counsels’ lawyering in support of these claims was anemic”:
Continue Reading Judge Engelmayer Slashes Requested Fee Award Based on “Anemic” Lawyering

In an opinion last week, Judge Cote dismissed a copyright infringement case brought by the maker of certain “HomeGirl Hotline” TikTok videos against the comedian Michael Che, arising out of sketches on Che’s television show involving a fictional mobile app called “homegrrl.”

Both the plaintiff’s videos and Che’s sketches generally involved calling upon a “homegirl” to help in social situations, the former via phone call (the “HomeGirl Hotline”) and the latter via mobile app (“homegrrl”). In one TikTok video, for example, “the dispatched HomeGirl throws a cheating husband’s belongings out of the house,” and in one of Che’s television sketches, a “Homegrrl” is dispatched to assist a male driver who gets into a car accident with a female driver.
Continue Reading Judge Cote Concludes That the Concept of “Hiring a Homegirl” for Help in Social Situations Is Not Protectable Under Copyright Laws