Today, the Supreme Court granted certiorari in two consolidated cases raising the question of whether sexual orientation discrimination violates Title VII.

One of the cases is Zarda v. Altitude Express, Inc., in which Judge Failla applied, but heavily criticized, binding Second Circuit precedent disallowing such claims.  The Second Circuit, sitting en banc, ultimately reversed

In an opinion today, the Second Circuit held that the “fair use” defense under copyright law did not apply to a service called “TVEyes” that allows users to search transcripts of cable news and other TV shows, and then watch clips up to 10 minutes long (called the “Watch” function).  The decision was a reversal of an earlier ruling by Judge Hellerstein (see our prior coverage here).

The Second Circuit first concluded that TVEyes’ Watch service was “transformative,” a key component of a fair use defense, insofar as it allows users to isolate clips based on their searches:
Continue Reading Second Circuit: Searchable Database of TV Clips Is Not “Fair Use”

Today, an en banc panel of the Second Circuit held that discrimination based on sexual orientation is a form of discrimination “because of . . . sex” in violation of Title VII, overturning Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000).  In 2017, a Second Circuit panel reviewing a decision of Judge Failla that was highly critical of Simonton, had ruled that it was bound by the Simonton rule until the en banc Court ruled otherwise (see our coverage here) — which is what happened today.

The majority found that Title VII’s legal framework had evolved substantially since its enactment in 1964, including a “sea change in the constitutional framework governing same-sex marriage.”  According to the majority:
Continue Reading Second Circuit: Sexual Orientation Discrimination Violates Title VII

Yesterday, the Second Circuit affirmed Judge Stein’s decision last year to dismiss a suit by Citizens United challenging New York’s charity reporting laws (see our previous coverage here). Citizens United challenged the New York Attorney General’s requirement that charities file an un-redacted Schedule B, a form listing the names and contribution amounts of the charity’s donors, before receiving a license to solicit contributions in the state.

Continue Reading Second Circuit Affirms Dismissal of Suit Challenging New York’s Charity Reporting Laws

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 whether to issue a stay pending appeal.

The NFLPA’s brief argues that the case “presents the starkest possible case for irreparable harm”:
Continue Reading For Appeal Argument Tomorrow, Ezekiel Elliott and NFL Dispute Whether Missing Games is “Irreparable Harm”

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 essence, that the affidavit supporting the raid was based on false testimony suggesting he knowingly traded on inside information.

The Second Circuit reversed, primarily on the ground that, even absent the allegedly false  information, the raid would have been supported by probable cause:
Continue Reading Second Circuit Throws Out Case Alleging Government Fabricated Evidence for Hedge Fund Raid, Leading to Fund’s Collapse

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 Circuit found that the complaint made out a plausible claim of “small group defamation” :
Continue Reading Second Circuit Revives “Small Group Defamation” Claim By Fraternity Against Rolling Stone

As part of the ongoing Uber antitrust litigation, the Second Circuit yesterday reversed Judge Rakoff’s earlier ruling that the arbitration clause in Uber’s terms of service was not enforceable (see our previous coverage of Judge Rakoff’s decision here, and the interlocutory appeal here).

Continue Reading Second Circuit Reverses Judge Rakoff, Finds Uber Arbitration Clause is Enforceable