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Earlier today, the Attorney General of the State of New York brought an action to “end the pervasive use of excessive force and false arrests” by the NYPD in “suppressing overwhelmingly peaceful protests” following the police killings of George Floyd and Breonna Taylor. According to the complaint:

From May 28, 2020 to December 11, 2020, NYPD Officers of various ranks (“NYPD Officers”) repeatedly and without justification used batons, fist strikes, pepper spray, and other physical force against New York Residents at the Protests. Protesters—many of whom were never charged with any crime and were merely exercising their First Amendment rights—suffered concussions, broken bones, cuts, bruises, and other physical injuries.

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Continue Reading New York State Sues New York City Over NYPD Response to Police Brutality Protests

In an opinion today in the long-running defamation case brought by Sarah Palin against the New York Times (see our coverage here), Judge Rakoff ruled that an expansion of New York’s anti-SLAPP law last month was retroactive, and hence was governing in the case.

Sate anti-SLAPP laws generally give special protections to defendants sued for exercising free speech rights, often by allowing for early dispositive motions, fee-shifting, and heightened standards of proof. New York’s anti-SLAPP law until recently applied only to cases involving public applications or permits, but a statute passed in November expanded the law – including the requirement of proving actual malice by clear and convincing evidence – to reach any claim arising from speech on matters of public interest.

Judge Rakoff concluded that the new law applied to case at hand because, under New York law, “remedial” legislation is given retroactive effect:…
Continue Reading Judge Rakoff: New York’s Expanded “anti-SLAPP” Law Is Retroactive

In a decision last week, Judge Cote ruled that the COVID-19 pandemic qualified as a “natural disaster” that fell within the scope of a contractual force majeure clause. The defendant auction house had agreed to auction a painting owned by the plaintiff and pay it a guaranteed minimum price, but invoked its right to terminate the agreement after the auction was postponed by the COVID-19 pandemic and related government restrictions.

The force majeure clause applied in the event of “circumstances beyond our or your reasonable control, including, without limitation, as a result of natural disaster, fire, flood, general strike, war, armed conflict, terrorist attack or nuclear or chemical contamination.” Judge Cote held that the pandemic was “a circumstance beyond the parties’ reasonable control” and a “natural disaster”:

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Continue Reading Judge Cote: COVID-19 Pandemic is a “Natural Disaster” for Purposes of Contractual Force Majeure Clause

In an opinion Friday, Judge Cronan dismissed with prejudice a suit brought by Sparks Steak House against its insurance company seeking to recover for business interruption losses arising from the COVID-19 pandemic. The policy covered, as is common in property insurance policies, “direct physical loss of or damage to property” at the premises, and Sparks argued that its inability to use the premises as a steakhouse fell within that language. Judge Cronan disagreed, using illustrations of how the policy language would be used in everyday experience:…
Continue Reading Judge Cronan: Sparks Steak House’s Business Interruption Insurance Policy Not Triggered by COVID-19 Because the Pandemic Did Not Cause “Direct Physical Loss” of Property

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.

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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:

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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