In a complaint Tuesday, the Girl Scouts sued the Boy Scouts for trademark infringement and unfair competition, arising from the Boy Scouts’ recent decision to include girls, and to use gender-neutral terms like “scout,” that will allegedly confuse the public. From the complaint’s introduction: Continue Reading
Judge Oetken Enjoins “AlibabaCoin” from Using Alibaba Group’s Marks; Finds Personal Jurisdiction Over Cryptocurrency Transactions Made Using Blockchain in Belarus
In an order last week, Judge Oetken granted a preliminary injunction to prevent the purveyors of the cryptocurrency “AlibabaCoin” from continuing to use the marks of Alibaba Group, the global e-commerce company based in China. According to Alibaba Group, defendants “published a variety of promotional materials that impermissibly use Alibaba’s trademarks in an effort to align AlibabaCoin with Alibaba in the minds of potential consumers.”
Notably, Judge Oetken addressed whether cryptocurrency transactions purportedly occurring in Belarus could be subject to personal jurisdiction in New York by analogizing cryptocurrency to debit card transactions: Continue Reading
New Complaint Alleges Trump Family Defrauded Would-Be Entrepreneurs Through Multi-Level-Marketing Scheme; Plaintiffs Move to Sue Under Pseudonyms
A complaint filed today alleges that Donald J. Trump, the Trump Organization, and members of the Trump family falsely promoted the multi-level-marketing scheme ACN, reaping millions of dollars in secret payments to promote the scheme that led to would-be entrepreneurs losing millions of dollars. According to the complaint, the members of the purported class invested in the multi-level-marketing scheme by paying fees and purchasing training sessions that would allow them to sell ACN’s products (which included an obsolete “video phone”). ACN events featured prominent Trump endorsements of the scheme, allegedly without revealing that Trump was being compensated for his endorsement or that investing in the scheme came with high risk and was unlikely to result in any return to the investors (with costs at some times exceeding returns by a factor of ten to one).
The complaint includes federal RICO claims as well as state law and common law claims.
The plaintiffs are three individuals (and putative class representatives) who have also just filed a motion to proceed under pseudonyms. Their motion begins: Continue Reading
Judge Furman: Census Trial Will Proceed Next Week Despite SCOTUS Order on Ross Deposition
In the ongoing saga of New York State’s challenge to the U.S. Census question on citizenship (see our previous coverage here), Judge Furman has rejected the Department of Commerce’s 11th hour attempt to delay the trial in the case currently scheduled to begin on November 6. Citing “the defendants’ own urgent need for finality,” Judge Furman found that the Department of Commerce failed to show any irreparable harm should the trial proceed as planned, noting that they had already “conced[ed], as a procedural matter, that a trial is appropriate” by electing not file a summary judgment motion, at the Court’s invitation, which could have argued that the case be decided on the administrative record without a trial.
The U.S. Supreme Court’s recent order preventing the deposition of Secretary of Commerce Wilbur Ross loomed large in Judge Furman’s decision: Continue Reading
Judge Engelmayer: Copyright Damages from Brief Display of Plaintiff’s Art in Kendrick Lamar Music Video Are Not Inherently Speculative
In an opinion Wednesday, Judge Engelmayer denied a motion by musician Kendrick Lamar (and other defendants) for partial summary judgment in a copyright case brought by an artist claiming that his work was displayed without authorization in the music video “All the Stars” from the Black Panther movie.
The plaintiff hadn’t registered his work and so wasn’t eligible for statutory damages. The defendants argued that any actual damages — profits gained from the alleged wrongdoing — were inherently too speculative, and should be rejected even before discovery: Continue Reading
Supreme Court Temporarily Halts Wilbur Ross Deposition; Hints That It Will Grant Cert on the Issue
In an Order this evening, the Supreme Court issued a temporary stay of any deposition of Commerce Secretary Wilbur Ross in the case challenging the constitutionality of adding a question about citizenship status to the 2020 U.S. census questionnaire. Judge Furman had ordered the deposition to go forward (see our coverage here). The stay is in effect until Monday, but, if there is a mandamus or certiorari petition filed before then, will continue until the petition is resolved.
Justice Gorsuch, joined by Justice Thomas, issued a short concurrence and dissent from the Order, calling the matter to be explored at the deposition — Secretary Ross’s alleged bad faith motives in adding the citizenship question — “highly unusual, to say the least.” They added: “Leveling an extraordinary claim of bad faith against a coordinate branch of government requires an extraordinary justification.” Accordingly, they would have stayed the entire case.
Judge Furman: Burden to Justify Detention Pending Deportation Proceedings Falls to Government, Not the Person Facing Deportation
In an opinion today, Judge Furman ruled that, under the Due Process Clause, it is the Government that must bear the burden, in immigration proceedings, to justify the continued detention of people subject to deportation.
He found that, in weighing the Government’s interests of ensuring an appearance by the person subject to deportation against that person’s liberty interests, “the greater risk of error” should fall to the Government, and that “[s]everal other considerations” reinforced the point: Continue Reading
White Plains Commercial Litigator Philip Halpern Nominated to SDNY Bench
The White House’s announcement from yesterday is here. A biography of Mr. Halpern from his law firm’s website is here.
Judge Broderick: Copyright Case Against Justin Timberlake Is Timely; Plaintiff Had No Duty “Scour” All Songs Immediately After Album Was Released
Last week, Judge Broderick denied a motion to dismiss a case brought by the copyright holders for the song “A New Day is Here at Last,” written by Perry Kibble in 1969 and performed by J.C. Davis. The suit alleged that Justin Timberlake’s 2006 hit song “Damn Girl” sampled “A New Day is Here at Last” without seeking permission from the copyright holder, a company managed by Kibble’s sister. Timberlake released the song in 2006 as part of an album and tour that received multiple Grammy and Emmy nominations. Plaintiffs discovered that “Damn Girl” had sampled “A New Day is Here at Last” in August 2015 and filed the suit in February 2016.
Among other arguments, defendants claimed that the widespread availability of the album and concert DVD put plaintiffs on notice of any possible infringement well before 2015, and hence the case was untimely. Judge Broderick rejected this argument: Continue Reading
Judge Furman: Secretary of Commerce Must Sit for Deposition Over Census Citizenship Question
This week, Judge Furman ordered U.S. Secretary of Commerce Wilbur Ross Jr. to sit for a deposition in a case challenging the constitutionality of adding a question about citizenship status to the 2020 U.S. census questionnaire. The question had not appeared on the census questionnaire since 1950; according to the complaint, the question was purposefully added to decrease the response rate among immigrant communities, leading to fewer public services and less Congressional representation in those areas.
Judge Furman had previously found that the plaintiffs had “made a strong preliminary or prima facie showing that they will find material beyond the Administrative Record indicative of bad faith” and allowed discovery into the decision to add the citizenship question back to the census. Judge Furman found that the deposition of Secretary Ross himself was required because of Secretary Ross’s high degree of personal involvement in the decision and the extent to which his credibility and intent was thus at issue Continue Reading
