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
Second Circuit
Second Circuit Affirms Judge Pauley’s Decision Rejecting Class Action Waiver Antitrust Claims Against Credit Card Companies
By Michael Keough on
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…
Second Circuit Upholds New York’s Credit Card Surcharge Ban
By Charles Michael on
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 equivalent price via a “discount.” The plaintiffs argued that the term “surcharge” was a more effective way to discourage credit card use by conveying the real costs they impose on businesses and customers.
The Second Circuit rejected this argument because it construed the law as applying to conduct — charging more than the sticker price — not to labels:
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Second Circuit Affirms Antitrust Ruling Against Apple in E-Books Case
By Charles Michael on
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 for its own e-bookstore under an “agency model” (in which the publishers set the price and Apple would take a cut), and those contracts included a “most-favored nations” clause requiring the publishers to price the books in Apple’s store at the lowest offered anywhere else. The Second Circuit agreed with Judge Cote that the intended effect of these terms was to compel the publishers to act together to challenge Amazon’s flat, $9.99 pricing:
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Second Circuit Declares NSA’s Bulk Phone Data Collection Unlawful
By Charles Michael on
In an opinion today, the Second Circuit reversed a decision by Judge Pauley (see our prior posts on the case here), and ruled that the NSA’s bulk collection of phone data is unlawful. Section 215 of the Patriot Act allows the government to collect “tangible things” that are “relevant” to an “authorized investigation” of terrorism, but the Second Circuit found that bulk collection did not meet the test of relevance:
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Second Circuit Affirms Judge Torres’ Denial of Police Unions’ Request to Intervene in Stop-and-Frisk Cases
By Charles Michael on
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
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Judge Rakoff Questions Second Circuit While Reluctantly Approving SEC-Citi Settlement
By Charles Michael on
In an opinion today, Judge Rakoff, following a remand from the Second Circuit (see our post here), relucutantly approved the $285 million SEC-Citibank settlement that he had previously rejected and that involved no admission of wrongdoing. Judge Rakoff offered a few criticisms of the Second Circuit’s decision, even as he concluded that it compelled…
Second Circuit Reverses Judge Rakoff’s Rejection of “No Admission” SEC Settlement With Citi
By Charles Michael on
In an opinion today reversing Judge Rakoff’s highly publicized decision to reject Citi’s $285 million settlement between the SEC and Citi that involved no admission of wrongdoing, the Second Circuit held that, in reviewing consent decrees with the SEC, district courts should not address the “adequacy” of settlements:
It is an abuse of discretion to
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Second Circuit Orders Release of Memo Discussing Legality of Drone Strikes
By Matthew Popowsky on
As we wrote about early last year, Judge McMahon reluctantly dismissed two FOIA suits seeking disclosure of a secret government memo addressing the legality of drone strikes on U.S. citizens. Now, the Second Circuit has reversed that decision and ordered that the government produce the memo (known as the OLC-DOD Memorandum) in response to FOIA requests made by New York Times reporters and the ACLU. The Second Circuit ruled that public disclosure of the contents of the memo had waived any claim to secrecy. Notably, just weeks after Judge McMahon’s decision, a 16-page DOJ “white paper” was leaked to the press, which itself analyzed the lawfulness of targeted drone killings. Though not part of the underlying record on appeal, the appellate court chose to consider this subsequent disclosure in rendering its opinion.
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Second Circuit Summarily Denies Banks’ Mandamus Petition in FHFA Cases
By Charles Michael on