In an opinion Wednesday, Judge Engelmayer largely granted the plaintiffs summary judgment in a case challenging New York City’s failure to make signalized intersections accessible to the blind. Only a small percentage of intersections have Accessible Pedestrian Signals, which “are devices that communicate ‘walk’ and ‘don’t walk signals to pedestrians in a non-visual format, through audible tones, speech messages, and/or vibrating surfaces.” This makes crossing the street in New York “harrowing” and “dangerous” for those who are blind or visually impaired:
Continue Reading Judge Engelmayer: City’s Crosswalks Do Not Provide Meaningful Access to the Blind, Violating ADA

In a 147 page opinion today, Judge Engelmayer vacated the so-called “conscience rule” that would have allowed health care providers who receive federal funds to decline to provide services to patients based on religious or moral grounds.  The plaintiffs, a group of state and local governments, challenged the regulation based on improper rulemaking, violations of the Establishment Clause, and because the threat of denying federal funds to health care providers who did not allow employees to decline care based on religious grounds was unconstitutionally coercive.

While Judge Engelmayer declined to invalidate the rule on Establishment Clause grounds, the opinion cited several fatal flaws with how the rule was enacted, including that the alleged reason the rule was drafted in the first place (a spike in health care workers raising “conscience” complaints) was factually untrue.  Given the pervasive nature of the issues, Judge Engelmayer concluded that the rule was so “shot through with glaring legal defects” that it had to be invalidated entirely:
Continue Reading Judge Engelmeyer Vacates HHS “Conscience Rule” In Its Entirety

In an opinion yesterday, Judge Engelmayer dismissed a class action accusing Whole Foods of exaggerating the weights of certain pre-packaged foods, so as to overcharge customers.  The genesis of the suit was an analysis by New York City’s Department of Consumer Affairs (DCA) finding that 89% of tested products had incorrect weights.

The lead plaintiff, Sean John, claimed to have bought cupcakes and cheese from Whole Foods, but, since he could only speculate that those particular purchases were weighed wrongly, Judge Engelmayer found he lacked standing:

Although John’s testimony can establish that he purchased cupcakes and cheeses from two Whole Foods stores, there is no competent, non-speculative, evidence that any cupcake or cheese item John bought weighed less than the weight used to price it. The DCA investigation, in the form of spot checks at certain stores, does not support the inference of systematic over-pricing. And John in discovery did not adduce competent evidence of a uniform practice by Whole Foods of falsely inflating the weight of its pre-packaged goods in general, or of cupcakes and cheese in particular.

John’s argument that there was systematic overpricing was as follows: because “Whole Foods utilizes uniform recipes and procedures for pre-packaged cupcakes and cheeses,” “a single instance of a short-weight cupcake or cheese item could be found to dictate that all food items of the same type, having been produced pursuant to the same specifications, must have been identically short-weight.” Judge Engelmayer found this argument “in tension with lived kitchen experience”:
Continue Reading Judge Engelmayer: “Short Weighting” Class Action Against Whole Foods Disproven by “Lived Kitchen Experience”

In an opinion today, Judge Engelmayer prelminarily enjoined  New York City’s new ordinance requiring homesharing platforms to share data about hosts and guests to the Mayor’s Office of Special Enforcement (OSE), adopted to help enforce a law prohibiting short term rentals in certain “multiple dwelling” buildings.  (See our prior coverage here.)

He concluded that the Fourth Amendment applied to the compelled production of the data, and that the ordinance was overly broad:
Continue Reading Judge Engelmayer Enjoins on Fourth Amendment Grounds City Law Requiring Homesharing Platforms to Routinely Disclose Rental Data

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 Judge Engelmayer: Copyright Damages from Brief Display of Plaintiff’s Art in Kendrick Lamar Music Video Are Not Inherently Speculative

Last week, Airbnb filed a complaint challenging the city’s new ordinance requiring homesharing platforms to share data about hosts and guests to the Mayor’s Office of Special Enforcement.  According to Airbnb, the new ordinance allows the city to collect wide-ranging categories of non-public information:

“[T]he Ordinance requires Internet homesharing platforms to turn over personal information

Judge Engelmayer denied yesterday a motion for class certification against a medical records copying firm accused of charging a price beyond the statutory limit.  HealthPort Technologies, LLC retrieved and photocopied patient records at the rate of 75 cents per page (the statutory limit set by New York Public Health Law § 18 for recovering “costs incurred”) but the its actual “costs incurred” allegedly fell far below that.

Judge Engelmeyer declined to certify a state-wide class of patients at the over 500 medical facilities where HealthPort operated, as the differences in determining the “costs incurred” for each location meant that common questions did not predominate as required by Rule 23(b)(3):
Continue Reading Judge Engelmayer Denies Class Certification for Medical Record Copying Claims, But “Stands Ready” to Approve Narrower Class

In an opinion today allowing a securities class action to be dismissed without prejudice, Judge Engelmayer expressed concern about the lawyers using confidential witnesses in complaint without confirming the accuracy of the statements attributed to them or warning the witnesses that their identity might have to be revealed. On the first point, the complaint’s 11 confidential witnesses were not given the chance to confirm the statements attributed to them and at least four believed they were misquoted or misleadingly quoted.  This risk of error, Judge Engelmayer concluded, counsels in favor of better diligence before filing a complaint. On the second point, Judge Engelmayer concluded that it was a matter of “decency” to alert confidential witnesses that their identities might eventually be revealed:
Continue Reading Judge Engelmayer: Lawyers Using Confidential Witnesses in Complaints Should Confirm Their Testimony and Warn of Risks of Being Outed