Second Circuit: Searchable Database of TV Clips Is Not “Fair Use”

In an opinion today, the Second Circuit held that the “fair use” defense under copyright law did not apply to a service called “TVEyes” that allows users to search transcripts of cable news and other TV shows, and then watch clips up to 10 minutes long (called the “Watch” function).  The decision was a reversal of an earlier ruling by Judge Hellerstein (see our prior coverage here).

The Second Circuit first concluded that TVEyes’ Watch service was “transformative,” a key component of a fair use defense, insofar as it allows users to isolate clips based on their searches: Continue Reading

Second Circuit: Sexual Orientation Discrimination Violates Title VII

Today, an en banc panel of the Second Circuit held that discrimination based on sexual orientation is a form of discrimination “because of . . . sex” in violation of Title VII, overturning Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000).  In 2017, a Second Circuit panel reviewing a decision of Judge Failla that was highly critical of Simonton, had ruled that it was bound by the Simonton rule until the en banc Court ruled otherwise (see our coverage here) — which is what happened today.

The majority found that Title VII’s legal framework had evolved substantially since its enactment in 1964, including a “sea change in the constitutional framework governing same-sex marriage.”  According to the majority: Continue Reading

Second Circuit Affirms Dismissal of Suit Challenging New York’s Charity Reporting Laws

Yesterday, the Second Circuit affirmed Judge Stein’s decision last year to dismiss a suit by Citizens United challenging New York’s charity reporting laws (see our previous coverage here). Citizens United challenged the New York Attorney General’s requirement that charities file an un-redacted Schedule B, a form listing the names and contribution amounts of the charity’s donors, before receiving a license to solicit contributions in the state.

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Journalist’s Complaint Seeks CIA Files for “Enhanced Interrogation Techniques” at Guantanamo

complaint filed this week seeks to compel the CIA to release records related to its interrogation practices, including “enhanced interrogation techniques” used on a prisoner held at Guantanamo Bay, Cuba.  According to the complaint, the prisoner has been held at the Guantanamo Bay facility for fifteen years without being charged.  A Politico article cited in the complaint reports that the prisoner has been tortured and waterboarded while in U.S. custody.

The complaint includes three claims for violations of the Freedom of Information Act (FOIA).

A judge has not yet been assigned to the case.

Judge Preska: Disputed Picasso Will Stay at the Met

Yesterday, Judge Preska dismissed a suit seeking to reclaim Picasso’s “The Actor” from the Metropolitan Museum of Art.  The suit alleged that the painting was sold under duress in the 1930s after its owner at the time, a German Jew, fled the Nazi regime (see our original coverage here).  While the opinion details the plight of the Leffmann family as they fled from Germany to Italy, Switzerland, and eventually Brazil to escape the Nazis, ultimately, the complaint did not adequately allege a claim against the Met.

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Judge Rakoff: Parties’ “Strategic Concerns” Don’t Justify Sealing Settlement Terms

Today, Judge Rakoff rejected an attempt by the parties in the Petrobras securities litigation (see our prior coverage here) to keep parts of the settlement agreement in that case out of the public record.  Judge Rakoff had previously rebuffed the parties’ request to keep parts of the settlement agreement confidential, and the parties had renewed their request in a letter to the court attaching the documents at issue.  Judge Rakoff denied this request as well, and then on his own filed the documents on the court’s public docket:

From Sykes-Picot to Iran-Contra, secret agreements always have their apologists, but they rarely serve the public interest . . . . There is a certain irony in counsel for plaintiffs – who have premised their claim of fraud on defendants’ alleged failure to disclose material information – seeking to keep secret three agreements that are a material part of the settlement. While plaintiffs’ counsel states that the Court has sometimes approved such sealing in past cases, the issue was never squarely raised; and, in any event, the Court is now convinced that the parties’ and their counsels’ strategic concerns should play no role in the Court’s determination of whether or not such documents should be sealed. Rather, the Court should be guided by the basic principle that all material parts of a proposed class action settlement should be available for public review and comment. Accordingly, the Court attaches to this Memorandum Order the three documents in issue and directs the Clerk of the Court to forthwith docket this Memorandum Order and the three attachments.

Judge Oetken Refuses to Dismiss Complaint Alleging that Applebee’s Tabletop Tablets Force Patrons to Tip

In an opinion Friday, Judge Oetken refused to dismiss a putative class action brought by Applebee’s patrons who allege that the tabletop computer tablets at the Broadway and Times Square locations force customers to leave a minimum tip of either 15% or 18%, and thereby deceive customers into believing tipping is mandatory, in violation of New York’s consumer protection laws.

The defendants argued (among other things) that the social norm of leaving a tip was grounds to dismiss the case, but Judge Oetken disagreed: Continue Reading

Judge Forrest: Vegetarian Who Unwittingly Bought Fries Cooked in Beef Tallow Not “Injured” for Purposes of NY’s Consumer Fraud Law

In an opinion today, Judge Forrest dismissed a class action brought by a vegetarian who alleged she bought fries and mozzarella sticks at Buffalo Wild Wings without knowing that they were cooked in beef tallow.

Judge Forrest found that, under the New York consumer protection law at issue, N.Y. Gen. Bus. L § 349, the “loss of the purchase price of an item, standing alone, does not constitute an ‘actual injury.’”  Because the plaintiff did “not separately allege that she was harmed by the food items she received, that those items were defective in any way, or that the price of the food items was inflated as a result of using beef tallow,” the case was dismissed.

Judge Cote Won’t Disqualify SEC Trial Team For Receiving Privileged Documents Via DOJ’s Search Warrant

Yesterday, Judge Cote declined a defendant’s request to disqualify the SEC’s entire trial team on the eve of trial after the SEC received allegedly privileged communications between the defendants and their counsel.  The documents were seized by federal agents during the execution of a search warrant and provided to federal prosecutors, who in turn provided them to the SEC.

Judge Cote found that this did not warrant disqualification, as the SEC had taken steps to ensure that potentially privileged documents were excluded from its review and had informed defense counsel as soon as privileged documents were discovered.  Judge Cote further noted that:

[T]here is a danger that the motion to disqualify the entire SEC trial team from an investigation that has been ongoing since 2013 is tactically motivated. . . . [A]ssuming for the purposes of this motion that the four documents are indeed privileged, it appears that the SEC trial team has only reviewed one of the four documents, the Fayyer Notes. [The defendant] has not pointed to any statement in the Notes, however, that is at odds with the positions it has taken publicly in opposition to the SEC’s litigation or that reveals any undisclosed litigation strategy or statement harmful to [the defendant].

Judge Sweet: Fox News’s Statement that It Took “Decisive Action” After Assault Allegation Does Not Disparage the Unnamed Accused Assailant

This week, Judge Sweet dismissed a complaint brought by a former Fox News Latino vice president who was terminated after a Fox News contributor accused him of sexual assault.  According to the complaint, a joint statement by Fox News and the accuser published in a New York Times article — stating that Fox News took “decisive action” in response to the accuser’s complaints  — violated a mutual non-disparagement clause in the plaintiff’s termination agreement, and was defamatory.  The complaint also alleged that the statement was part of a wider conspiracy to boost the image of Fox News in the wake of the Roger Ailes scandal (supposedly at the expense of plaintiff’s career).

Judge Sweet called the plaintiff’s complaint “worthy of its own Martin Scorsese thriller” and found that “both law and sechel [common sense]” justified the dismissal.  The joint statement was not defamatory or disparaging, Judge Sweet found, because it did not even mention the plaintiff by name.  Accordingly, it could not “be read plausibly to indicate anything, let alone anything discrediting, about Plaintiff.”  That the New York Times published the statement within an article that did name the plaintiff was not enough to impose liability on Fox News, because Fox News was “not plausibly responsible for what else was written” in the article.