Earlier this week, the parties to a pregnancy discrimination case agreed to mediation and asked Judge Subramanian to adjourn all deadlines until after the completion of their settlement efforts, or, alternatively, for 45 days.
In a revealing endorsement, Judge Subramanian on Wednesday denied the request because, apparently as a policy matter, he will not
In an opinion today, the Second Circuit ordered a retrial of Sarah Palin’s defamation suit against the New York Times (see our prior coverage here). The suit arises from an editorial suggesting that her political action committee’s use of “stylized cross hairs” over the districts of several members of Congress in online materials incited the mass shooter who killed six people and wounded many others (including Representative Gabby Giffords) in 2011.
The Second Circuit reversed on multiple grounds, one of which relates to the unusual circumstances surrounding Judge Rakoff granting the Times judgment as a matter of law while the jury was still deliberating. Although the jurors likewise found the Times not liable, certain of them received “push notifications” on their phones about Judge Rakoff’s ruling before reaching their decision. Judge Rakoff concluded that the notifications did not “remotely affect” the verdict, but the Second Circuit found otherwise, noting the “special position of influence” that a judge holds:Continue Reading Second Circuit: “Push Notifications” to Jurors Before Their Verdict Requires Retrial of Sarah Palin’s Defamation Case Against the New York Times
In an opinion last week, Judge Engelmayer dismissed most of the SEC’s fraud claims against the software company SolarWinds over the so-called “SUNBURST” cyberattack in 2020 that is generally attributed to state-sponsored Russian hackers.
Judge Engelmayer allowed the SEC’s claims to proceed as to certain pre-SUNBURST statements on SolarWinds’ website touting its cybersecurity practices, but dismissed the SEC’s claims based on statements the company made after the fact, finding that those claims “impermissibly rel[ied] on hindsight and speculation.” For example, a Form 8-K filed after the attack allegedly left out certain details about the extent of the harm, but Judge Engelmayer noted that “perspective and context are critical,” including that the filing was made as the facts were evolving and that, overall, the Form 8-K “by any measure bluntly reported brutally bad news for SolarWinds.”
Judge Engelmayer rejected a novel theory advanced by the SEC that SolarWinds’ cybersecurity failures violated a provision of the Securities Exchange Act requiring issuers to maintain “internal account controls sufficient” to prevent unauthorized “access to assets,” finding that the language concerned “financial accounting,” not cybersecurity:Continue Reading Judge Engelmayer: Securities Law Requiring “Internal Accounting Controls” Does Not Reach Cybersecurity Deficiencies
In an Order last week, Magistrate Judge Wang chided the parties in a terrorism funding case for having filed a joint, 73-page discovery letter, consistent with a pattern of “protracted letter-writing campaigns” that have embroiled the Judge in “day-to-day supervision” of discovery.
She ordered the offending letter stricken, but an an earlier one (at 54 pages) appears to be the type of correspondence sparking the forceful order, in which she cited Charles Dickens’ fictional case Jarndyce v Jarndyce, as illustrating the problem: Continue Reading Magistrate Judge Wang Warns Against “Protracted Letter-Writing Campaigns” Over Discovery
Amendments to the SDNY local rules are effective as of today. The changes can be seen in redline here. The following are a few of the more notable changes:Continue Reading Updated Local Rules Go Into Effect Today
In an opinion last week, Judge Koeltl denied a motion to dismiss brought by NBC and Peacock, which are accused of infringing the plaintiff’s copyright to two videos in connection with a documentary about Rudy Giuliani’s infamous press conference in front of the Four Seasons Total Landscaping business—widely speculated to have been intended to take place at the Four Seasons Hotel. One video was of the press conference itself, and the other depicted confrontations between supporters of Joe Biden and supporters of Donald Trump.
Judge Koeltl rejected the defendants’ argument that using the videos as part of a documentary “forgives all copying” as fair use:Continue Reading Judge Koeltl: Producing Documentary Does Not “Forgive All Copying” as Fair Use
At least four SDNY lawsuits have been filed against Columbia University relating to the recent campus protests, including a class action complaint filed April 29, accusing the University of breaching its contractual obligation to provide a safe learning environment, insofar as Columbia chose to respond to the protests by making classwork partially remote for the remainder of the school year:
Columbia has in no uncertain terms announced that the university is not safe for its Jewish students. But rather than clear the encampment, the administration decided to take the extraordinary step of shifting to a “hybrid” model of education for the remainder of the academic year, where students that don’t feel safe enough to attend class in person can view the class online. This absurd shift makes no attempt to solve the safety problem on campus, and at the same time, creates two very different educational experiences for Jewish and non-Jewish students. The vast majority of the student population, including these extreme demonstrators, get to attend classes in person, take tests in person, communicate with professors in person, and otherwise take advantage of the campus.
The Jewish students, on the other hand, get a second-class education where they are relegated to their homes to attend classes virtually, stripped of the opportunity to interact meaningfully with other students and faculty and sit for examinations with their peers. This policy shift is a clear admission that the campus is not simply experiencing a protest movement, which has happened to universities across the country for decades, but instead, has become a place that is too dangerous for Columbia’s Jewish students to receive the education they were promised.
The class action is before Judge Torres, who has scheduled a hearing on the plaintiff’s TRO application for tomorrow.
The other cases are:Continue Reading Columbia University Faces Wave of Litigation Over Campus Protests
In an opinion yesterday, Judge Gardephe dismissed a complaint (see our prior coverage here) brought by Liberty Tax Service against the makers of the TV show “Better Call Saul” for depicting an allegedly similar business, “Sweet Liberty Tax Services,” as a criminal enterprise. In the show, the business is run by Craig Kettleman, who had been convicted of embezzlement in an earlier season but then opened “Sweet Liberty Tax Services” with his wife after being released from prison.
Under Second Circuit law, using a mark in this way is protected so long as it is artistically relevant and not explicitly misleading. Judge Gardephe agreed with the Defendants that the “Sweet Liberty” name was artistically relevant insofar as it was intended to be “richly ironic”:Continue Reading Judge Gardephe: Better Call Saul’s Fictional “Sweet Liberty” Tax Firm Does Not Infringe Rights of Similarly-Named, Real Business
In an opinion yesterday, Judge Castel denied a summary judgment motion that sought to dismiss the defamation action brought by former prosecutor Linda Fairstein against Netflix and others over a “docudrama” called “When They See Us” about the Central Park Five. Our coverage of the denial of the motion to dismiss is here.
Judge Castel recognized that the makers of films and television shows dramatizing real events have some license to advance an “opinion-based version of events, provided that the account has some support in the historical record.” He also noted that, while docudramas will often use “composite” characters, “Fairstein does not complain that she was defamed through the use of a fictionalized composite character. Her claims are directed to words and deeds attributed to her by name.”
The decision details why a jury could find that five particular scenes were capable of defamatory meaning and were made with “actual malice.”
In the first example, Fairstein is depicted as creating a timeline of the underlying attack, and then manipulating it to fit a predetermined conclusion that the “Central Park Five” were guilty:Continue Reading Judge Castel Denies Summary Judgment to Netflix in Defamation Case Over Central Park Five “Docudrama”
In the SEC’s closely-watched action against the crypto firm Ripple, Judge Torres on Thursday issued a summary judgment decision finding that some types of sales of Ripple’s crypto token, XRP, were governed by the securities laws while others were not. The decision is a notable counterweight to the SEC’s effort to broadly categorize crypto transactions as falling under the securities laws.
The key issue was whether the underlying transactions met the definition of the “investment contracts” as interpreted by the Supreme Court’s decision in SEC v. W.J. Howey Co., 328 U.S. 293 (1946). Under Howey, a transaction is an investment contract if there is “a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party.”
For XRP’s sales to institutional investors, Judge Torres found that the Howey test was met because the investors paid money to Ripple, which then “used the funds it received from its Institutional Sales to promote and increase the value of XRP by developing uses for XRP and protecting the XRP trading market.”
Sales on digital asset exchanges were different, however, because the purchasers (referred to as “Programmatic Buyers” in the opinion) did not even know if the funds were going to Ripple:Continue Reading Judge Torres: Sales of Ripple’s Crypto Tokens on Exchanges Are Not Securities Transactions