SDNY Blog

Subscribe to SDNY Blog via RSS

On Tuesday, Judge Kaplan granted a motion in limine concluding, in a matter of first impression in SDNY, that the evidentiary bar in Federal Rule of Evidence 407 against subsequent remedial measures applies to plaintiffs just the same as defendants. The plaintiff is the tax-collecting arm of the Dutch government, which accuses various defendants of obtaining fraudulent refunds, and which sought to exclude evidence that it updated it guidelines after the underlying events in ways that potentially would have flagged the refund requests as improper. The defendants wanted to introduce the evidence to show (among other things) that the Dutch government was partly to blame for processing the refunds.

Judge Kaplan granted the motion, and, in doing so, rejected the defendants’ arguments that that Rule 407 applies only to measures taken by defendants.Continue Reading Judge Kaplan: Bar on Evidence of Subsequent Remedial Measures Applies to Both Plaintiffs and Defendants

In an opinion Wednesday, Judge Torres held unconstitutional a New York City law mandating that online food delivery platforms like Door Dash share customer data (e.g., name, address, email, phone) directly with the restaurants from which customers order their food. The aim of the law was to allow the restaurants to tilt the balance of marketing power away from the online platforms and back to the restaurants.

Judge Torres first concluded that the law implicated speech (not conduct) under the First Amendment: “The Customer Data Law directly regulates what Plaintiffs can (indeed, must) ‘say’ to the restaurants that use their services. In other words, regulation of speech is the object—not an incidental byproduct—of the law.”

She next concluded that the law failed “intermediate” scrutiny because there was only a thin connection between the government interests at stake and the speech burden used to address the interest. The City argued that the law addressed “exploitative” practices like the platforms using data about one restaurant’s customers to pitch to those customers competitor restaurants or restaurants that pay higher fees. But Judge Torres found that the law did little to actually remedy those issues and reflected instead, a “mere preference for one industry over another”:Continue Reading Judge Torres: City Law Compelling Food Delivery Platforms to Share Customer Data With Restaurants Is Unconstitutional Compelled Speech

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

On Monday, Judge Cote granted a motion to dismiss claims that George Santos, former Congressman, brought against Jimmy Kimmel, ABC, and Disney regarding “Cameo” videos by Santos that Kimmel featured on his show, Jimmy Kimmel Live! Cameo is “a website that allows fans [] to request personalized video messages from public figures and celebrities.” Defendants, using fake names, submitted a number of “ridiculous” requests to Santos for such videos, and Santos created fourteen videos in response. Kimmel subsequently used some of these videos for a segment on his show, in which he “ask[ed] his audience ‘Will Santos Say It?’ before playing the video in full.”Continue Reading Judge Cote: Jimmy Kimmel’s Segment on George Santos’s “Cameo” Videos Constitutes “Fair Use”

Last week, Judge Woods granted defendants’ motion to decertify a class because plaintiffs’ counsel failed to comply with its obligation to produce a viable class-wide statement of damages. Judge Woods explained that counsel for plaintiffs had been incompetent throughout the litigation, and the Court was no longer satisfied that plaintiffs’ counsel could adequately represent the class.Continue Reading Judge Woods: Class Decertified Due to Counsel’s Continued Inadequacy

On Monday, Judge Rakoff held that a discovery error—uncovered after the parties went to trial—did not merit a redo or sanctions. In June 2021, Adidas brought a trademark action against Thom Browne, alleging that Thom Browne’s four-bar and grosgrain design on its activewear infringed Adidas’s trademarked three-stripe design. The case went to trial in January 2023, where the jury decided that Thom Browne was not liable; the decision was affirmed by the Second Circuit in May 2024.

While the appeal was pending, Adidas learned through a related action in the U.K. that Thom Browne had failed to produce four relevant emails in the course of discovery. Adidas moved for a new trial, and the Court re-opened discovery on this limited issue. The Court determined that the failure stemmed from a miscommunication between the e-discovery vendor and Thom Browne’s paralegals regarding the categorization of certain documents being reviewed for production. In assessing the mistake, Judge Rakoff determined that neither a new trial or sanctions would be appropriate because Adidas “failed to show either that the four emails probably would have changed the outcome of trial . . . or that Thom Brown engaged in ‘misconduct’ in failing to produce the emails.”Continue Reading Judge Rakoff:  Unproduced Emails — Although Relevant — Do Not Warrant New Trial Or Sanctions

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