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

In an opinion Monday, Judge Marrero ruled that the First Amendment protected the right of a group of law professors to publish online their attorney grievance complaints against prosecutors in Queens who had been involved in alleged prosecutorial misconduct. The professors received a letter from New York City’s Corporation Counsel claiming that the disclosure of their complaints violated a statute protecting the confidentiality of grievance proceedings.

Judge Marrero, quoting an earlier Second Circuit case, found that the effort to deter the law professors was unlawful: “Penalizing an individual for publicly disclosing complaints about the conduct of a government official strikes at the heart of the First Amendment.” 
Continue Reading Judge Marrero: First Amendment Allows Attorney Grievance Complainants to Publish Their Own Complaints, Notwithstanding Confidentiality Statute

In an opinion Tuesday, Judge Crotty preliminarily enjoined New York State from enforcing unauthorized practice of law (“UPL”) regulations against a non-profit that counsels New Yorkers facing debt-collection actions (see our prior coverage here).

Judge Crotty found that UPL regulations were commonly upheld as regulating conduct, but, as applied to the that the program at issue, the UPL regulations governed speech:
Continue Reading Judge Crotty: Non-Profit’s Advice on Dealing With Debt Collection Actions Is Protected by First Amendment Against “Unauthorized Practice of Law” Regulations

In an opinion Wednesday, Judge Rakoff allowed the handbag maker Hermés to proceed with a trademark suit against the individual responsible for a series of non-fungible tokens (“NFTs”) associated with digital images of “faux-fur-covered versions” of Hermés’s “Birkin” handbag. An example of a “MetaBirkin” image is below:


Continue Reading Judge Rakoff: Hermés Can Enforce Its “Birkin” Trademark Against Maker of “MetaBirkin” NFTs

In an opinion Thursday, Judge Swain granted judgement on the pleadings to the makers of the musical Vape, declaring that under the “fair use” doctrine, Vape does not infringe on the copyright in the classic theatrical work Grease.

Vape holds itself out as a parody of Grease. The copyright holders argued that rather than commenting on Grease itself, Vape merely ripped off elements of Grease in order to critique “society writ large.” Judge Swain disagreed:

Continue Reading Judge Swain: Musical Parodying the Misogyny of Grease is “Fair Use”

In an order yesterday, in a case involving two people who were formerly in a relationship and who now accuse one another of battery (among many other things), Judge Buchwald resolved various discovery disputes with a warning against “irrelevant invective”:

As the Court’s rulings demonstrate, these motions would have been unnecessary if counsel had conducted themselves in a more professional manner. The inclusion of any kernel of a meritorious argument in the briefing was in danger of being obscured by the amount of irrelevant invective. Indeed, the constant bombardment of the Court with such irrelevant invective makes defendant’s frequent refrain about the imposition on counsel’s time and his client’s resources ring hollow. Counsel are reminded once again, as the Court did early on, about the need to maintain objectivity and a professional distance from their clients.


Continue Reading Judge Buchwald Warns Counsel Against “Irrelevant Invective” and Fruitless Motion Practice

In an opinion yesterday, Judge Hellerstein granted summary judgment to the Boy Scouts, and against the Girl Scouts, in a case arising from the Boy Scouts’ decision to use gender-neutral terms like “scout,” to account for its new policy of allowing girls to participate. The Girl Scouts alleged, in essence, that the Boy Scouts’ use of gender-neutral terms would create public confusion about the two organizations (see our prior coverage here).

Judge Hellerstein found that the Girl Scouts did not have a protectable trademark right to “scouting” because the public associates that term with either both organizations, or with the generic concept of “scouting”:
Continue Reading Judge Hellerstein Dismisses Girls Scouts’ Trademark Case Against Boy Scouts Over Gender-Neutral Term “Scouting”

In an opinion last week, the Second Circuit affirmed Judge Cote’s decision (covered here) finding that the force majeure clause in a contract relating to an art auction was triggered by the COVID-19 pandemic.

Judge Cote had found that COVID-19 qualifies as a “natural disaster” within the clause, and the appellant argued that there was at least fact question as to whether the pandemic was truly a natural disaster, insofar as it may have been the result of a leak from a Chinese lab of man-made, genetically engineered viral material. The Second Circuit decided it need not resolve that issue, and seized on different language in the same clause about circumstances beyond the parties’ “reasonable control”:
Continue Reading Second Circuit: COVID-19 Pandemic Triggers Contractual Force Majeure Clause for Circumstances Beyond the Parties’ “Reasonable Control”