A Steptoe blog about civil litigation in the Southern District of New York
In a short Order this evening, Judge Crotty (sitting in Part I for Judge Failla), granted the NFL Players Association a TRO to place on hold the six-game suspension of Cowboys running back Ezekiel Elliott.
The ruling explains that, absent a TRO, “Mr. Elliott would suffer irreparable harm because he stands to miss more than…
In an opinion today, Judge Failla dismissed entirely a case brought by a bar exam company referred to as “LBE” that specializes in students with LL.M. degrees. LBE accused the industry leader, Barbi, of colluding with law schools nationwide to harm its business, but LBE’s own complaint — 78 pages long and with 63 exhibits…
At the end of an opinion today, Judge Failla issued the following warning:
Before concluding, the Court pauses to express its dissatisfaction with the blatant circumvention of its briefing-length restrictions . . . The parties . . . are hereby warned that future attempts to evade the Court’s page limits, by relegating entire arguments to
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Last week, the Second Circuit reversed Judge Failla’s decision criticizing precedent that she concluded required dismissal of a Title VII claim focused on sexual orientation discrimination (see our coverage of Judge Failla’s ruling here). The Second Circuit found that it lacked authority to overturn circuit precedent without an en banc panel or a subsequent U.S. Supreme Court decision, and so did not revisit its prior conclusion that Title VII does not authorize suits based on sexual orientation discrimination. The panel did find, contrary to Judge Failla’s ruling, that the case could proceed as a plausible gender stereotyping claim:
This week, Judge Failla dismissed a putative class action stemming from the 2015 food-borne illness outbreak among Chipotle customers. According to the complaint, at least seven E. coli outbreaks at Chipotle restaurants in 2015 were caused by Chipotle’s switch from processing produce at a central facility to processing produce in each of its 1,900 restaurants. The complaint alleged that Chipotle and its executives failed to disclose the change in produce processing and the resulting increase in the risk of food-borne illness outbreaks.
Judge Failla found that these statements were not actionable:
Continue Reading Judge Failla Dismisses Chipotle E. coli Class Action
In an opinion Wednesday, Judge Failla found that the website Gossip Cop was liable for posting screen grabs of copyrighted photos from other websites, and rejected Gossip Cop’s argument that doing so was “fair use.” Gossip Cop’s fair use argument was premised on the fact that it commented on whether the underlying news stories associated…
A putative class action filed last week alleges that Starbucks’ espresso beverages contain fewer fluid ounces than advertised due to an alleged company-wide policy of under-filling beverage cups. According to the complaint, two representative beverages purchased at a Manhattan Starbucks included roughly 15% less volume than advertised. The proposed class includes all persons or entities…
In an opinion today, Judge Failla dismissed employment discrimination claims brought by a gay man under Title VII. She found the employer’s alleged conduct to be “reprehensible” but was “constrained to find that Plaintiff has not stated a cognizable claim” because the Second Circuit has held, in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), that sexual orientation discrimination claims fall outside Title VII. Judge Failla was critical of that view because subsequent Supreme Court rulings “reflect a shift in the perception, both of society and of the courts, regarding the protections warranted for same-sex relationships and the men and women who engage in them.” She added that there was no “coherent” way to separate sexual orientation discrimination from sex-based discrimination:
Continue Reading Judge Failla Criticizes Binding Precedent Excluding Sexual Orientation from Title VII
The New York Bankers Association filed a complaint Tuesday seeking to invalidate “Local Law 38,” which calls for the creation of a Community Investment Advisory Board (the “CAIB”) to gather information about banks that take deposits from the City and to establish “best practices” for those banks regarding various initiatives, including (for example) offering financial services most needed by low and moderate income individuals. The New York Bankers Association brought a similar challenge last year, but Judge Failla dismissed the case without prejudice, largely because then-Mayor Bloomberg did not enforce it. The renewed complaint argues that the CAIB is up and running and that its regulation is preempted by state and federal banking laws:
Continue Reading Bankers Association Renews Challenge to City Regulation of Banks as Preempted by State and Federal Law
In an opinion yesterday, Judge Failla largely denied UBS’s motion to dismiss a lawsuit brought by a plaintiff who claims he was fired, in violation of anti-retaliation laws, for complaining about UBS’s practices relating to commercial mortgage-backed securities (CMBS). Judge Failla did dismiss, however, the plaintiffs’ claims under the Consumer Financial Protection Act. This portion of the motion raised a novel question of whether the anti-retaliation provisions of the CFPA pertained to products that the CFPB had the authority to regulate by statute, or whether the provisions related only to those products actually regulated. Judge Failla agreed with the latter view and dismissed that claim:
Continue Reading Judge Failla: CFPB Anti-Retaliation Protections Do Not Cover Complaints About CMBS
