Last week, Magistrate Judge Cave ruled that the New York Attorney General’s Office (“OAG”) was protected from having to comply with a document subpoena under Eleventh Amendment sovereign immunity. The subpoena was issued by former Governor Cuomo, in connection with a defending against a civil lawsuit involving allegations overlapping with matters that OAG had investigated.

Judge Cave was faced with a a question that the Second Circuit has not yet resolved: whether “a subpoena to a state agency and subsequent efforts to enforce it are ‘the type of proceeding[] from which the Framers would have thought the States possessed immunity when they agreed to enter the Union.’” She concluded that OAG was immune:

Continue Reading Magistrate Judge Cave: Eleventh Amendment Sovereign Immunity Bars Enforcement of Document Subpoena to NY Attorney General’s Office

By issuing the OAG Subpoena, and then seeking to enforce it through the OAG MTC, Mr. Cuomo has twice invoked ‘the Judicial power of the United States,’ to require the OAG to produce the Requested Materials, i.e., to ‘compel [the OAG] to act[.]’

Continue Reading Magistrate Judge Cave: Eleventh Amendment Sovereign Immunity Bars Enforcement of Document Subpoena to NY Attorney General’s Office

Last week, Judge Broderick granted NYU’s motion to dismiss a class action complaint brought by a “John Doe” alleging that NYU Law Review gives “preferential treatment to women, non-Asian racial minorities, homosexuals, and transgender people when selecting its members” due, in part, to the journal’s practice of “requir[ing] each applicant to submit a statement of interest that provides ‘a more comprehensive view of [him or her] as an individual.’” John Doe is a first-year law student, who “aspires to join his school’s law review.”Continue Reading Judge Broderick Rejects as Speculative Anonymous Plaintiff’s Claims that NYU Law Review’s Diversity Policies Unlawfully Discriminate

On Monday, Judge Seibel ordered a plaintiff to re-submit an amended 56.1 statement response to comply with the Local Rules. Judge Seibel explained that the response, at 356 pages, was too long and argumentative, did not properly controvert certain of defendants’ statements, and did not include pincites when citing record evidence.

Summarizing the issues with plaintiff’s 56.1 response, Judge Seibel wrote:Continue Reading Judge Seibel: 56.1 Response is Not the Occasion for “Context” or “Semantic Quibbles”

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 two complaints filed last week, The Intercept Media, Inc, Raw Story Media, Inc. and AlterNet Media, Inc. became the latest companies to sue OpenAI for copyright infringement in violation of the Digital Millennium Copyright Act. The Intercept also included Microsoft as a defendant.

Both complaints were filed by self-identified “news organizations,” and allege that those organizations’ copyrighted works were used to train OpenAI’s generative AI systems, ChatGPT, on how to mimic human speech and writing. According to the news organizations, when deciding what information to include in the training materials fed to ChatGPT: Continue Reading Copyright Infringement Lawsuits Against OpenAI and Microsoft Are Mounting

Last Tuesday, the Authors Guild and 17 authors, including George R.R. Martin, Jonathan Franzen, Elin Hilderbrand, John Grisham and Jodi Picoult, filed a proposed class action complaint against OpenAI, alleging direct, vicarious and contributory copyright infringement. The Plaintiffs seek “redress for Defendants’ flagrant and harmful infringements of Plaintiffs’ registered copyrights in written works of fiction.”

Plaintiffs’ complaint alleges that: Continue Reading Authors Guild and 17 Well-Known Authors Claim OpenAI Infringes Their Copyrighted Works

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