Tag Archives: Second Circuit

For Appeal Argument Tomorrow, Ezekiel Elliott and NFL Dispute Whether Missing Games is “Irreparable Harm”

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 … Continue Reading

Second Circuit Throws Out Case Alleging Government Fabricated Evidence for Hedge Fund Raid, Leading to Fund’s Collapse

In an opinion today, the Second Circuit reversed a ruling by Judge Pauley (see our prior coverage here) that had allowed hedge fund manager David Ganek to proceed with claims against the U.S. Attorney and various other government officials over a raid that led to the collapse of his hedge fund, Level Global.  Mr. Ganek had alleged, in … Continue Reading

Second Circuit Revives “Small Group Defamation” Claim By Fraternity Against Rolling Stone

In an opinion this week by Judge Forrest (sitting by designation), the Second Circuit reversed in part Judge Castel’s dismissal (covered here) of claims brought by a University of Virginia fraternity against Rolling Stone magazine over a widely discredit article telling the story of a source named “Jackie” being gang raped at a fraternity party. The Second … Continue Reading

Second Circuit Finds that Claim Focused on Sexual Orientation Discrimination May Proceed Under Gender Stereotyping Theory

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 … Continue Reading

SCOTUS: NY Credit Card Surcharge Law Regulates Speech

Yesterday, the U.S. Supreme Court held that New York State’s law preventing merchants from charging an additional fee for using a credit card (see our previous coverage here) regulates speech, and remanded the case to the Second Circuit to determine whether the law can survive First Amendment scrutiny.  Judge Rakoff had initially ruled in favor of … Continue Reading

Supreme Court Grants Cert in Case Challenging New York’s Credit Card Surcharge Ban

Today the Supreme Court granted certiorari in a First Amendment challenge to New York’s ban on credit card surcharges.  The law allows merchants to charge different prices for cash and credit card purchases, but, according to the plaintiffs, it violates the First Amendment by prohibiting them from calling the extra charge for credit card purchases a … Continue Reading

Second Circuit Affirms Judge Forrest’s Dismissal of “Flash Boys” Suit

In an opinion Friday, the Second Circuit affirmed Judge Forrest’s dismissal of a complaint (see our prior coverage here) accusing stock exchanges of improperly allowing high-frequency traders to pay to obtain and trade on market data faster than other investors — the conduct at issue in the Michael Lewis book “Flash Boys.”  The Second Circuit agreed that … Continue Reading

Second Circuit Affirms Summary Judgment in Trademark Case Against Oprah

This week, the Second Circuit affirmed Judge Crotty’s grant of summary judgment dismissing trademark claims against Oprah Winfrey over use of the phrase “Own Your Power” (see our previous coverage here).  The Second Circuit agreed with Judge Crotty that use of the phrase “Own Your Power” was fair use and did not infringe on the name … Continue Reading

Second Circuit Agrees With Judge Forrest that Aluminum Consumers Lack Antitrust Standing for Alleged Conspiracy Between Warehouses and Traders

In an opinion yesterday, the Second Circuit affirmed Judge Forrest’s ruling (covered here) dismissing claims by consumer and commercial end-users who alleged that aluminum trading firms and warehouses conspired to increase the price of aluminum.  The Second Circuit ruled that the plaintiffs lacked antitrust standing because they did not participate in the markets where the … Continue Reading

Second Circuit Reverses Dismissal of LIBOR Antitrust Claims

In an opinion Monday, the Second Circuit reversed Judge Buchwald’s dismissal of antitrust claims based on the alleged manipulation of LIBOR (covered here).  Judge Buchwald ruled that the process of establishing LIBOR was a “cooperative” endeavor that, even if manipulated, would not cause harm to competition for purposes of the antitrust laws.  The Second Circuit disagreed: … Continue Reading

Second Circuit Reverses Judge Rakoff’s $1.2 Billion Penalty in BOA-Countrywide FIRREA Litigation

Today, the Second Circuit reversed Judge Rakoff’s $1.2 billion penalty against Bank of America/Countrywide for FIRREA violations (see our previous coverage here).  The case involved allegations that BoA/Countrywide had sold faulty mortgages to Fannie Mae and Freddie Mac, originally brought as a qui tam suit under the False Claims Act in which the government intervened.  The Second … Continue Reading

New York Court of Appeals Will Hear Copyright Issue Judge McMahon Originally Certified for Interlocutory Appeal

The New York Court of Appeals has accepted a certified question from the Second Circuit regarding whether New York copyright holders for pre-1972 recordings (governed by state copyright law, and not the federal Copyright Act) have a right to exclusive public performance of those recordings.  The case, initially before Judge McMahon, arose after Sirius XM played songs by The Turtles (including the … Continue Reading

Second Circuit Sides With NFL in DeflateGate Appeal

In a decision today, the Second Circuit, by a 2-1 vote, reversed Judge Berman’s ruling in the DeflateGate case, effectively reinstating Tom Brady’s four-game suspension for his role in deflating footballs used during the 2015 AFC Championship Game. Tom Brady and the NFL Player’s Association focused their appeal on the fact that, based on the … Continue Reading

Second Circuit Allows Recovery of 7-Carat Diamond Against Innocent Buyer, Rejecting UCC “Merchant Entrustment” Rule

Yesterday, the Second Circuit reversed a decision by Judge Scheindlin granting summary judgment in favor of two plaintiffs seeking to confirm ownership of a 7.4-carat diamond under the UCC’s “merchant entrustment” rule (see our original coverage of the case here).  The defendant below, the original owner of the diamond, had lent the diamond to a celebrity … Continue Reading

Second Circuit Rules That District Court Should Have Limited, But Not Excluded Entirely, Damages Expert Testimony in Pfizer Securities Class Action

The Second Circuit today held, in a shareholder class action accusing Pfizer of concealing the cardiovascular risks of two drugs, that Judge Swain should not have excluded entirely the testimony of the plaintiffs’ damages expert — a decision which had effectively ended the case (see our prior posts here and here).  The Second Circuit agreed with Judge … Continue Reading

Second Circuit Affirms Judge Oetken’s Decision Dismissing Art Authenticator’s Defamation Claims Against the New Yorker

The Second Circuit today affirmed Judge’s Oetken’s decision from August 2013 dismissing defamation claims against the New Yorker stemming from a 2010 profile of Peter Paul Biro, a specialist in art authentication through fingerprint analysis who was featured in the documentary Who the #$&% is Jackson Pollock?.  The Second Circuit found that Rule 8 requires a … Continue Reading

Second Circuit Affirms Judge Pauley’s Decision Rejecting Class Action Waiver Antitrust Claims Against Credit Card Companies

The Second Circuit yesterday affirmed an April 2014 decision by Judge Pauley (covered here) rejecting claims that American Express, Citi and Discover colluded to add arbitration clauses barring class actions to their standard card agreements.  Judge Pauley had previously ruled that the defendants had acted individually, and not collusively, when adding class action waivers to their arbitration clauses.  … Continue Reading

Second Circuit Upholds New York’s Credit Card Surcharge Ban

The Second Circuit this morning upheld New York State’s ban on credit card “surcharges.” Judge Rakoff had earlier found (see our coverage here) that the law, § 518 of the General Business Law, likely violated the First Amendment because it imposed criminal penalties for calling extra credit card fees “surcharges” but allowed merchants to offer the … Continue Reading

Second Circuit Affirms Antitrust Ruling Against Apple in E-Books Case

In a 2-1 opinion yesterday, the Second Circuit affirmed the bench trial findings of Judge Cote that Apple orchestrated a price fixing conspiracy with book publishers to collectively raise the $9.99 per-book price that Amazon was charging and that publishers believed was damaging to their business in the long term. Apple signed contracts with the publishers … Continue Reading

Second Circuit Affirms Judge Torres’ Denial of Police Unions’ Request to Intervene in Stop-and-Frisk Cases

The opinion’s introduction summarizes the holding as follows: We hold that the police unions’ motions to intervene are untimely and do not assert an interest that the law seeks to protect. The unions knew, or should have known, of their alleged interests in these controversial and public cases well before they filed their motions in September 2013. For years now, … Continue Reading
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