Judge Caproni recently held in the context of a SEC enforcement action that communications with an outside compliance firm were not privileged. The communications at issue contained advice from a compliance consulting firm which, though staffed by attorneys, provided advice pursuant to a consulting agreement that specifically disclaimed the attorney-client relationship.
Judge Furman: Sensitive Pricing Information Can’t Be Sealed Where It Goes to the “Heart of the Litigation”
In an opinion Tuesday, Judge Furman ruled that the complaint in an “international saga” of fraud in the art world must be filed publicly and without redactions, even though it contained sensitive information about transactions facilitated by the international auction house Sotheby’s.
Plaintiffs hired an art dealer to assist in purchasing a world-class art collection, and the dealer allegedly defrauded them of approximately $1 billion by purchasing the artworks himself and re-selling them to plaintiffs at inflated prices. Plaintiffs claim that Sotheyby’s aided and abetted the fraud. Sotheby’s sought to keep certain portions of the complaint under seal, but Judge Furman held that confidentiality concerns were insufficient because the information at issue went to the very heart of the case: Continue Reading
Supreme Court Agrees With Judge Furman that Census Citizenship Question Was Added Based on “Contrived” Rationale
The Supreme Court today, in an opinion by Chief Justice Roberts, largely affirmed Judge Furman’s conclusion (see here) that the Commerce Department’s decision to add a citizenship question to the 2020 census was based on a rationale — to help enforce the Voting Rights Act — that was pretextual, and agreed that the matter must be remanded back to the agency to reconsider: Continue Reading
Judge Ramos: Text Message Exchange Doesn’t Satisfy Writing Requirement of Statute of Frauds
In an opinion yesterday, Judge Ramos ruled that a real estate broker could not recover a commission because the agreement was not in writing as required by the Statute of Frauds (under New Jersey law).
The broker tried to rely on a series of text exchanges, but Judge Ramos found that texts would suffice only if the client had written his name or otherwise “signed” the texts in some way: Continue Reading
Judge Failla Concludes That Kroger’s Updated Website Moots ADA Lawsuit Over Accessibility for Visually Impaired
In an opinion today, Judge Failla dismissed as moot an ADA lawsuit accusing the supermarket chain Kroger of operating a website that isn’t accessible for the visually impaired. Kroger apparently addressed all the issues complained of. There is a huge body of litigation in this area (see this article and this article, for example), but Judge Failla found that this was one of the rare cases where a mootness defense was raised and was compelling: Continue Reading
Judge Marrero Allows New York State Challenge to Federal Fintech Banking Charters to Proceed
Earlier this month, Judge Marrero denied a motion to dismiss a complaint brought by the New York State Department of Financial Services (DFS) against the U.S. Comptroller of the Currency (OCC). The complaint challenged the Comptroller’s decision to begin issuing special purpose national banking (SPNB) charters to financial technology (“fintech”) companies that, among other things, exempted the companies from certain federal liquidity and capitalization standards. DFS argued that the charters undermined New York’s ability to regulate and protect its financial markets. The Comptroller moved to dismiss, arguing that DFS had not suffered an Article III injury, that the action was not ripe because no SPNB charter applications had been received from fintech companies yet, and that DFS failed to state a claim under the Tenth Amendment.
Judges Furman and Carter Grant Habeas Petitions Requiring Individualized Bond Hearings for Detaining Awaiting Removal Hearings
In two opinions yesterday (here and here), Judges Furman and Carter concluded that Due Process requires timely, individual bond hearings, with the Government bearing the burden to show a risk of flight, for those awaiting removal hearings.
In the case before Judge Furman, the detainee has been held for 21 months with no hearing. In a previous opinion (covered here), Judge Furman concluded that, given the “liberty interests” at stake, it was appropriate for the Government to bear the burden of proof.
While the Board of Immigration Appeals has a policy of putting the burden on the detainee, Judge Carter’s decision yesterday agreed with Judge Furman that the policy was inconsistent with Due Process: Continue Reading
Magistrate Judge Gorenstein: Attorney-Client Communications That Include Outside PR Firm Are Not Privileged
In an opinion this week, Magistrate Judge Gorenstein ruled that sharing attorney-client privileged communications with an outside public relations firm resulted in a waiver of the attorney-client privilege. The plaintiff, Universal Standard, a manufacturer of “size-inclusive” clothing, filed a complaint against Target alleging trademark infringement. After discovery, Target filed a motion asking the court to find that certain emails involving the plaintiff and its outside public relations firm, BrandLink, had been inappropriately listed on the plaintiff’s privilege log.
The court held that none of the exceptions for applying the attorney-client privilege to third-party communications were appropriate. First, the court held that the communications with the PR firm were not “necessary” for outside’s counsel representation: Continue Reading
Trump Family Sues Banks to Prevent Compliance with House Subpoenas
In a complaint filed yesterday, President Trump, his children, and entities related to Trump family businesses sued two financial institutions to prevent them from responding to recent subpoenas issued by the House Permanent Select Committee on Intelligence and the House Financial Services Committee. The subpoenas seek banking and financial records related to Trump family businesses; according to the complaint, “the subpoenas were issued to harass President Donald J. Trump, to rummage through every aspect of his personal finances, his business, and the private information of the President and his family, and to ferret about for any material that might be used to cause him political damage.”
The complaint contains a single cause of action for declaratory and injunctive relief to prevent compliance with the subpoenas. The case has been assigned to Judge Ramos.
Supreme Court Grants Cert in SDNY Case to Address Whether Sexual Orientation Discrimination Violates Title VII
Today, the Supreme Court granted certiorari in two consolidated cases raising the question of whether sexual orientation discrimination violates Title VII.
One of the cases is Zarda v. Altitude Express, Inc., in which Judge Failla applied, but heavily criticized, binding Second Circuit precedent disallowing such claims. The Second Circuit, sitting en banc, ultimately reversed the precedent, finding that such claims could proceed.
Our coverage of the Zarda case is here. Supreme Court filings are available at the SCOTUSblog page for the case, see here.
