In a class action lawsuit filed Thursday, a fantasy sports contestant alleged that the cheating scandals that have recently engulfed Major League Baseball fatally compromised the fairness of fantasy contests promoted by the league.  The complaint alleges that contestants would not “have wagered on fantasy baseball contests if they had known that the players’ performance statistics on which their wagers were based were not honest.”
Continue Reading

In an opinion yesterday, Judge Rakoff refused to dismiss a case brought by New York State and the Kings County District Attorney challenging a policy by the Immigration and Customs Enforcement Agency, or ICE, of arresting suspected unauthorized immigrants when they show up for court proceedings.  The opinion introduces the case as follows:

Courts cannot be expected to function properly if third parties (not least the executive branch of the government) feel free to disrupt the proceedings and intimidate the parties and witnesses by staging arrests for unrelated civil violations in the courthouse, on court property, or while the witnesses or parties are in transit to or from their court proceedings. Accordingly, more than 500 years ago, the English courts developed a common law privilege against civil arrests on courthouse premises and against arrests of parties and other persons necessarily traveling to or from court.

This ancient privilege, incorporated into American law in the early years of our republic by virtually all state and federal courts, has remained largely intact over the centuries. But now, according to the State of New York, [ICE], in implementation of an Executive Order issued by the Trump Administration in January 2017 and a Directive to ICE agents promulgated in January 2018, has increased its civil arrests in or around New York state courthouses by a remarkable 1700 percent and more. By this lawsuit, plaintiff The State of New York, joined by co-plaintiff Eric Gonzalez (the District Attorney of Kings County), demand that these intrusions be halted.

Judge Rakoff rejected the government’s argument (among others) that the immigration laws trump any common law privilege, because there was no “clear” statutory language to that effect:
Continue Reading

In an opinion today, the Second Circuit revived Sarah Palin’s suit accusing The New York Times of defaming her in 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 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 (see our prior coverage here).

The Second Circuit took issue with Judge Rakoff relying on evidence from an evidentiary hearing — the testimony from Times editor James Bennet — to dismiss the case under Rule 12.  As the Second Circuit held, Rule 12(d) allows District Courts to either rule based on the pleadings alone, or to convert the motion to dismiss into a motion for summary judgment (with an opportunity to introduce more evidence):
Continue Reading

The Cardozo Law Review has published a special issue, inspired by a 2016 essay from Judge Marrero entitled The Costs of Rules, the Rule of Costs, focusing on the way modern practice and procedure have needlessly made litigation so expensive and slow.  The special issue includes (among other things) a follow up article from Judge Marrero entitled Motion to Dismiss: A Dismissal of Rule 12(b)(6) and the Retirement of Twonbly/Iqbal, proposing various reforms, including severely limiting motions to dismiss that are aimed at the factual sufficiency of the allegations (as opposed to dispositive legal theories).  Judge Marrero argues that the wastefulness that inspired the adoption of the Federal Rules in 1938 (which ushered in the simple, notice pleading standard) has reappeared in a different form in today’s practice:
Continue Reading

Yesterday, Judge Rakoff sanctioned an attorney for an objector to the $3 billion Petrobras securities litigation settlement (see our full coverage of the Petrobras litigation here).  Judge Rakoff had approved the settlement over the objections, after which the objectors filed an appeal.  According to the class plaintiff, the appeals were part of an “extortionist agenda” to extract a monetary settlement in exchange for dismissing their appeals.

Judge Rakoff warned against the rise of frivolous objections to class settlements:
Continue Reading

In an opinion today in the Uber antitrust case, which was on remand from the Second Circuit (see our prior coverage here), Judge Rakoff sent the case to arbitration based on the “Terms of Service” within Uber’s phone application.  Before doing so, however, he complained of having to enforce terms that “everyone recognizes” are “totally coerced”:
Continue Reading