In an opinion Tuesday, Judge Kaplan denied the Justice Department’s motion to substitute the United States for Donald Trump as the defendant in a defamation suit against the president in his individual capacity. The plaintiff, E. Jean Carroll, published a book excerpt in 2019 alleging that Trump raped her in the mid-1990s. Trump told the press that Carroll made the story up, and Carroll sued him for defamation. The Justice Department intervened, arguing that the lawsuit was really one against the United States because Carroll had sued an “employee” of the United States for actions within the scope of his employment.

Judge Kaplan held that the president is a constitutional officer rather than a government “employee,” and that the allegedly defamatory statements were not made within the scope of his employment because, as the chief executive of the United States government, no one else has the power to control his conduct: “To hold that someone else exercises control over the president would turn the Constitution on its head.” On this point, Judge Kaplan continued:


Continue Reading Judge Kaplan Rejects Justice Department’s Attempt to Intervene on Trump’s Behalf in Defamation Suit

In an opinion Wednesday, Judge Kaplan awarded attorneys’ fees to news networks that broadcast brief excerpts of the plaintiff’s live-streaming on Facebook of his partner’s childbirth.  Alongside the broadcasts, the networks offered “social commentary about the phenomenon of someone publicly live-streaming a life event that traditionally is considered personal.”  Judge Kaplan dismissed the plaintiff’s copyright claims on fair use grounds, and in the ruling Wednesday, he found the case so meritless as to justify fee-shifting:
Continue Reading Judge Kaplan: Plaintiff Who Live-Streamed Childbirth Must Pay News Networks’ Attorneys’ Fees for Dismissed Copyright Suit

In an opinion today, Judge Kaplan denied the motion of CDO manager Harding Advisory and its principal Wing Chau to preliminarily enjoin SEC administrative proceedings against them.  The hearing has already been completed, but they await a decision that is expected next month.  As we reported in March, the plaintiffs initially moved to stay the proceedings before they even began (see our prior post here), but that motion was denied. Harding and Mr. Chau’s basic allegation is that administrative proceedings are so lacking in procedural protections that they violate due process, especially as compared to federal court.  Judge Kaplan concluded, however, that they could make those arguments within the administrative process itself – i.e., through an appeal to the Commission and then to the Second Circuit.  The cumbersome nature of that route, Judge Kaplan ruled, does not deny the plaintiffs due process:
Continue Reading Judge Kaplan Denies Motion Challenging SEC Administrative Proceedings As Unfair

Attorneys at Skadden Arps and Post & Schell, on behalf of a client named Joseph Stilwell and his firm, today filed a complaint arguing that SEC administrative proceedings are unconstitutional:

SEC administrative proceedings violate Article II of the U.S. Constitution, which states that the “executive Power shall be vested in a President of the United States of America.”
Continue Reading New Suit Challenges Constitutionality of SEC Administrative Proceedings Based on ALJs’ Insulation From Executive Oversight

In a discovery order dated yesterday, Judge Kaplan ruled (among other things) that Bank of New York Mellon could claw back a privileged email that it had inadvertently produced.  The order acknowledges the realities of large-scale document productions in which mistakes will be made “more often than desirable”:

The fact that the document as originally

In a complaint filed Tuesday, CDO manager Harding Advisory and its principal Wing Chau allege that the SEC violated their due process and equal protection rights by “shoehorning” a case against them into an administrative proceeding instead of suing in federal court.  The plaintiffs allege that an administrative hearing is wholly unsuitable for a complex case like theirs, especially given the rigid requirement that hearings occur within approximately four months of the matter being initiated.  They  seek to enjoin the proceeding, and force the SEC to sue in federal court instead. The plaintiffs allege that the SEC has refused to explain why their case, as compared to similar CDO cases, was “singled out” to be kept out of court, and argue that the SEC’s must be acting based upon one or more of the following improper motives:
Continue Reading CDO Manager Sues to Enjoin SEC Administrative Case Based on Inadequate Procedural Protections