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 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”

In an opinion Friday, Judge Cote concluded that a trade secret holder’s accidental revelation of trade secret information to a competitor, in connection with due diligence for a possible transaction, could not constitute the competitor’s acquisition of the information by “improper means,” as required to prevail on a misappropriation claim. The plaintiff, TransPerfect, argued that the defendants used information learned during the diligence process to poach TransPerfect’s clients.

While Judge Cote agreed that certain information TransPerfect had shared with the defendants constituted trade secrets, she found that TransPerfect had failed to adduce evidence that defendants acquired the information by improper means, as required under the Defend Trade Secrets Act:
Continue Reading Judge Cote: Acquiring Trade Secrets Accidentally Produced In Deal Diligence Is Not Acquisition by “Improper Means”

On Tuesday, Judge Cote granted Google a temporary restraining order against the operators of a blockchain enabled “botnet.”  As the complaint explains, a “botnet” is “a network of internet-connected devices (bots), each of which are infected by malware,” and whose “computing power grows with each new device that is infected.” The complaint describes the particular botnet at issue as a modern version of organized crime:
Continue Reading Judge Cote Grants Google a TRO Against Operators of Malicious “Botnet”

In an opinion yesterday, Judge Cote ruled inadmissible certain deposition designations that a group of defendants wanted to use at a forthcoming antitrust trial because the witnesses were corporate representatives who lacked personal knowledge of the matters to which they testified.

As Judge Cote explained, even though Rule 30(b)(6) authorizes deposition testimony via corporate representatives that are supposed to gather knowledge from others, it does not follow that the testimony meets the standards for admissibility at trial:
Continue Reading Judge Cote: Corporate Representative Deposition Testimony Must Be Based on Personal Knowledge to Be Admissible at Trial

In a pair of opinions Monday, Judge Cote dismissed two putative class actions, one brought by college textbook retailers (opinion here) and another brought by students (opinion here), accusing textbook publishers and on-campus bookstore operators of violating the antitrust laws. The cases alleged an unlawful conspiracy involving a digital program called Inclusive Access that provides students automatic access to course materials when they register for class and bills their bursar account (unless they opt out).

In both cases, Judge Cote found that there were no plausible allegations of an anticompetitive agreement, or conspiracy, among the defendants, because there were ample independent reasons to pursue a digital strategy:
Continue Reading Judge Cote: College Textbook Publishers Did Not “Conspire” to Steer Universities to Requiring Digital Books

In a decision last week, Judge Cote ruled that the COVID-19 pandemic qualified as a “natural disaster” that fell within the scope of a contractual force majeure clause. The defendant auction house had agreed to auction a painting owned by the plaintiff and pay it a guaranteed minimum price, but invoked its right to terminate the agreement after the auction was postponed by the COVID-19 pandemic and related government restrictions.

The force majeure clause applied in the event of “circumstances beyond our or your reasonable control, including, without limitation, as a result of natural disaster, fire, flood, general strike, war, armed conflict, terrorist attack or nuclear or chemical contamination.” Judge Cote held that the pandemic was “a circumstance beyond the parties’ reasonable control” and a “natural disaster”:

Continue Reading Judge Cote: COVID-19 Pandemic is a “Natural Disaster” for Purposes of Contractual Force Majeure Clause

Last week, Judge Cote ruled that a New York’s Penal Law Section 215.50 – a misdemeanor criminal contempt statute that prohibits shouting and display of signage within two hundred feet of a courthouse where that speech concerns a trial ongoing in that courthouse – violated the First Amendment.  The case arose when the defendant distributed pamphlets with information about jury nullification outside the Bronx County Hall of Justice and was arrested after refusing to move outside of the 200-foot perimeter.

Judge Cote found that the act was not sufficiently tailored to meet the state’s purported interest in protecting trial integrity:
Continue Reading Judge Cote Strikes Down New York State Prohibition Against Trial Signage Outside Courthouses, Citing First Amendment

In an opinion yesterday, Judge Cote concluded that a plaintiff’s software patent was not eligible for patent protection because it amounted to an abstract idea.  The patent covered a “method of creating a dynamically adaptable tutorial,” and, in essence, it described a method of linking website elements so as to facilitate, and easily update, online tutorials.  As Judge Cote explained:
Continue Reading Judge Cote: Software for “Dynamic” Tutorials Too Generic to Be Patented

In an opinion today, Judge Cote denied a motion to compel brought by the defendants in an SEC enforcement action relating to one of the SEC’s witnesses.  The defendants claimed that the witness gave inaccurate deposition testimony about having been disciplined at work for having harassed a former romantic partner, and so wanted more documents about the incident, and an additional deposition.  Judge Cote, who chose not to identify the witness by name, emphatically denied the motion:
Continue Reading Judge Cote Rejects SEC Defendants’ Attempt to Delve Into Stale, Highly Personal Affairs of SEC Witness