Judge Failla

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On Wednesday, Judge Furman granted a permanent injunction against an Executive Order imposing civil and criminal penalties on those who provide “services” to certain persons associated with the International Criminal Court (“ICC”). The plaintiffs, two law professors, had in the past submitted amicus briefs in support of the ICC, conducted trainings, and advised certain ICC individuals. Consistent with a 2020 decision from Judge Failla concerning a similar Executive Order (subsequently withdrawn in the Biden administration), Judge Furman determined that the new Order was “content-based” and therefore subject to strict scrutiny. As Judge Furman explained, “Plaintiffs are free to speak if their speech does not have the function or purpose of benefitting [the head of the ICC’s Office of the Prosecutor]; but they are subject to civil and criminal penalties if it does have that function or purpose.”

The Court found the government’s arguments to the contrary “unpersuasive”:Continue Reading Judge Furman Permanently Enjoins Executive Order Penalizing Providing Services to Sanctioned Persons Associated with the International Criminal Court

In an opinion Friday, Judge Failla ruled that Venezuela’s state oil company was required to pay certain bonds, despite the Venezuela National Assembly having declared last year that the bonds violated the Venezuelan Constitution.  The declaration occurred against the backdrop of a power struggle in the Venezuelan government. The National Assembly’s President Juan Guaidó has been recognized by the United States as the Interim President of Venezuela, over the competing claims of Nicolás Maduro (see our prior coverage here).

Under the doctrine of international comity, the Court could have deferred to the National Assembly’s declaration, particularly if the Executive Branch supported that view. But the Executive Branch was “non-committal” in this case, and so the Court was “left to determine for itself whether it should extend comity to the National Assembly’s actions.”

Judge Failla ultimately concluded that the bonds should be enforced because, accepting a rule to the contrary would invite other governments to shortchange legitimate creditors after-the-fact:
Continue Reading Judge Failla: Venezuela Cannot Void Bonds Based on Alleged Illegality Under Venezuelan Law

In a letter endorsement Friday, Judge Failla rejected an attorney’s to re-open a deposition, finding that the attorney making the request was the source of the problem:

[T]he Court observes that Plaintiff’s counsel assumed the role not only of questioner, but of Greek Chorus as to many of [the witness’s] answers, thereby unnecessarily prolonging her deposition. Counsel’s treatment of the witness was also unnecessarily rude, and by the end of the deposition, counsel appeared unwilling or unable to let [the witness] complete her answers to his questions. Accordingly, the Court sees no reason to order the continuation of [the] deposition . . .

A couple of examples from the transcript are below:
Continue Reading Judge Failla: Attorney Who Was a “Greek Chorus” During Deposition Cannot Reopen It

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 Failla Concludes That Kroger’s Updated Website Moots ADA Lawsuit Over Accessibility for Visually Impaired

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…

In a detailed 74-page opinion yesterday, Judge Failla dismissed a securities fraud complaint against Chipotle arising from its alleged failure to properly disclose to investors various matters relating to the food-borne illness outbreaks that caused its stock to drop.  She had dismissed an earlier version of the complaint last year, as we covered here.

Judge Failla ruled (among other things) that generalized statements in Chipotle’s filings about its commitment to food safety could not be the basis for fraud:
Continue Reading Judge Failla Again Dismisses Securities Fraud Case Over Food-Borne Illness Outbreaks at Chipotle

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: Sexual Orientation Discrimination Violates Title VII

At 2:00 p.m. tomorrow, the Second Circuit will hear arguments on a motion from the NFL Players Association (NFLPA) to stay pending appeal Cowboys running back Ezekiel Elliott’s six-game suspension arising from a domestic violence incident.  Judge Failla refused to preliminarily enjoin the suspension, but the Second Circuit granted an administrative stay so it could consider whether to issue a stay pending appeal.

The NFLPA’s brief argues that the case “presents the starkest possible case for irreparable harm”:
Continue Reading For Appeal Argument Tomorrow, Ezekiel Elliott and NFL Dispute Whether Missing Games is “Irreparable Harm”