In an opinion today, the Second Circuit ordered a retrial of Sarah Palin’s defamation suit against the New York Times (see our prior coverage here). The suit arises from an editorial suggesting that her political action committee’s use of “stylized cross hairs” over the districts of several members of Congress in online materials incited the mass shooter who killed six people and wounded many others (including Representative Gabby Giffords) in 2011.

The Second Circuit reversed on multiple grounds, one of which relates to the unusual circumstances surrounding Judge Rakoff granting the Times judgment as a matter of law while the jury was still deliberating.  Although the jurors likewise found the Times not liable, certain of them received “push notifications” on their phones about Judge Rakoff’s ruling before reaching their decision. Judge Rakoff concluded that the notifications did not “remotely affect” the verdict, but the Second Circuit found otherwise, noting the “special position of influence” that a judge holds:Continue Reading Second Circuit: “Push Notifications” to Jurors Before Their Verdict Requires Retrial of Sarah Palin’s Defamation Case Against the New York Times

On Monday, Judge Rakoff held that a discovery error—uncovered after the parties went to trial—did not merit a redo or sanctions. In June 2021, Adidas brought a trademark action against Thom Browne, alleging that Thom Browne’s four-bar and grosgrain design on its activewear infringed Adidas’s trademarked three-stripe design. The case went to trial in January 2023, where the jury decided that Thom Browne was not liable; the decision was affirmed by the Second Circuit in May 2024.

While the appeal was pending, Adidas learned through a related action in the U.K. that Thom Browne had failed to produce four relevant emails in the course of discovery. Adidas moved for a new trial, and the Court re-opened discovery on this limited issue. The Court determined that the failure stemmed from a miscommunication between the e-discovery vendor and Thom Browne’s paralegals regarding the categorization of certain documents being reviewed for production. In assessing the mistake, Judge Rakoff determined that neither a new trial or sanctions would be appropriate because Adidas “failed to show either that the four emails probably would have changed the outcome of trial . . . or that Thom Brown engaged in ‘misconduct’ in failing to produce the emails.”Continue Reading Judge Rakoff:  Unproduced Emails — Although Relevant — Do Not Warrant New Trial Or Sanctions

A jury returned a verdict yesterday of approximately $130,000 against Mason Rothschild, the creator of a series of non-fungible tokens, or NFTs, associated with digital images of Hermés’s “Birkin” handbags covered in fake fur (see our prior coverage here).

Rothschild argued that the NFTs were protected artistic expression under the First Amendment.  Judge Rakoff denied both sides summary judgment as to that and other issues, and ultimately instructed the jury that the First Amendment question turned on whether Rothchild was intentionally trying to confuse customers and thereby capitalize on Hermés famous brand, or instead created the project for artistic reasons:Continue Reading Jury: “MetaBirkins” NFTs Violate Trademark Rights of Handbag Maker Hermés

In an opinion Wednesday, Judge Rakoff allowed the handbag maker Hermés to proceed with a trademark suit against the individual responsible for a series of non-fungible tokens (“NFTs”) associated with digital images of “faux-fur-covered versions” of Hermés’s “Birkin” handbag. An example of a “MetaBirkin” image is below:

Continue Reading Judge Rakoff: Hermés Can Enforce Its “Birkin” Trademark Against Maker of “MetaBirkin” NFTs

In the long-running defamation case brought by Sarah Palin against the New York Times (see our prior coverage here), Judge Rakoff issued an opinion yesterday explaining his ruling from the bench granting judgment as a matter of law to the Times. The ruling was announced orally to counsel at the close of trial, before the jury returned its verdict. The jury subsequently ruled in the Times’ favor, as well.

The central issue in the case was whether the Times acted with “actual malice” when it issued an editorial erroneously suggesting that the actions of Palin’s political action committee – using “stylized cross hairs” over the districts of several members of Congress in online materials – was responsible for the “political incitement” of Jared Lee Loughner, who killed six people and wounded many others, including Representative Gabby Giffords, in a 2011 mass shooting.

Judge Rakoff found that the author, James Bennet, did not act with actual malice because, among other things, he was so quick to direct that the matter be corrected the morning after the editorial was published:
Continue Reading Judge Rakoff: It Would “Chill Protected Speech” To Hold NY Times Liable for Careless, Quickly-Corrected Editorial About Sarah Palin

In an important copyright ruling today, Judge Rakoff ruled that “embedding” material online — in this case, a news organization embedding in an article a video of a polar bear that the plaintiff posted on Instagram — could violate the copyright laws. He rejected the “server rule” by which there could only be infringement in cases where the defendant makes a copy of the image or video to display from its own server.  Under the server rule, merely embedding the material (essentially, displaying the material via the original source) cannot be infringement.

Judge Rakoff found that the server rule was “contrary to the text and legislative history of the Copyright Act”:
Continue Reading Judge Rakoff Finds that “Embedding” Photos and Videos Online Can Infringe Copyrights, Rejecting “Server Rule”

In an opinion today in the long-running defamation case brought by Sarah Palin against the New York Times (see our coverage here), Judge Rakoff ruled that an expansion of New York’s anti-SLAPP law last month was retroactive, and hence was governing in the case.

Sate anti-SLAPP laws generally give special protections to defendants sued for exercising free speech rights, often by allowing for early dispositive motions, fee-shifting, and heightened standards of proof. New York’s anti-SLAPP law until recently applied only to cases involving public applications or permits, but a statute passed in November expanded the law – including the requirement of proving actual malice by clear and convincing evidence – to reach any claim arising from speech on matters of public interest.

Judge Rakoff concluded that the new law applied to case at hand because, under New York law, “remedial” legislation is given retroactive effect:
Continue Reading Judge Rakoff: New York’s Expanded “anti-SLAPP” Law Is Retroactive

On Friday, Judge Rakoff denied cross-motions for summary judgment in Sarah Palin’s defamation lawsuit against the New York Times. (See our earlier coverage here.) Palin argued that the “actual malice” standard for defamatory statements against public figures was no longer good law or did not apply to this case, while the Times argued that no reasonable jury could find that the allegedly defamatory statements were published with actual malice. The case will proceed to trial next Februrary.
Continue Reading Judge Rakoff Clears Sarah Palin’s Defamation Lawsuit Against NY Times for February Trial