In an opinion Monday, Judge Marrero ruled that the First Amendment protected the right of a group of law professors to publish online their attorney grievance complaints against prosecutors in Queens who had been involved in alleged prosecutorial misconduct. The professors received a letter from New York City’s Corporation Counsel claiming that the disclosure of their complaints violated a statute protecting the confidentiality of grievance proceedings.

Judge Marrero, quoting an earlier Second Circuit case, found that the effort to deter the law professors was unlawful: “Penalizing an individual for publicly disclosing complaints about the conduct of a government official strikes at the heart of the First Amendment.”  Continue Reading Judge Marrero: First Amendment Allows Attorney Grievance Complainants to Publish Their Own Complaints, Notwithstanding Confidentiality Statute

In an opinion Tuesday, Judge Crotty preliminarily enjoined New York State from enforcing unauthorized practice of law (“UPL”) regulations against a non-profit that counsels New Yorkers facing debt-collection actions (see our prior coverage here).

Judge Crotty found that UPL regulations were commonly upheld as regulating conduct, but, as applied to the that the program at issue, the UPL regulations governed speech: Continue Reading Judge Crotty: Non-Profit’s Advice on Dealing With Debt Collection Actions Is Protected by First Amendment Against “Unauthorized Practice of Law” Regulations

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 an opinion Thursday, Judge Swain granted judgement on the pleadings to the makers of the musical Vape, declaring that under the “fair use” doctrine, Vape does not infringe on the copyright in the classic theatrical work Grease.

Vape holds itself out as a parody of Grease. The copyright holders argued that rather than commenting on Grease itself, Vape merely ripped off elements of Grease in order to critique “society writ large.” Judge Swain disagreed:

Continue Reading Judge Swain: Musical Parodying the Misogyny of Grease is “Fair Use”

In an order yesterday, in a case involving two people who were formerly in a relationship and who now accuse one another of battery (among many other things), Judge Buchwald resolved various discovery disputes with a warning against “irrelevant invective”:

As the Court’s rulings demonstrate, these motions would have been unnecessary if counsel had conducted themselves in a more professional manner. The inclusion of any kernel of a meritorious argument in the briefing was in danger of being obscured by the amount of irrelevant invective. Indeed, the constant bombardment of the Court with such irrelevant invective makes defendant’s frequent refrain about the imposition on counsel’s time and his client’s resources ring hollow. Counsel are reminded once again, as the Court did early on, about the need to maintain objectivity and a professional distance from their clients.

Continue Reading Judge Buchwald Warns Counsel Against “Irrelevant Invective” and Fruitless Motion Practice

In an opinion yesterday, Judge Hellerstein granted summary judgment to the Boy Scouts, and against the Girl Scouts, in a case arising from the Boy Scouts’ decision to use gender-neutral terms like “scout,” to account for its new policy of allowing girls to participate. The Girl Scouts alleged, in essence, that the Boy Scouts’ use of gender-neutral terms would create public confusion about the two organizations (see our prior coverage here).

Judge Hellerstein found that the Girl Scouts did not have a protectable trademark right to “scouting” because the public associates that term with either both organizations, or with the generic concept of “scouting”: Continue Reading Judge Hellerstein Dismisses Girls Scouts’ Trademark Case Against Boy Scouts Over Gender-Neutral Term “Scouting”

In an opinion last week, the Second Circuit affirmed Judge Cote’s decision (covered here) finding that the force majeure clause in a contract relating to an art auction was triggered by the COVID-19 pandemic.

Judge Cote had found that COVID-19 qualifies as a “natural disaster” within the clause, and the appellant argued that there was at least fact question as to whether the pandemic was truly a natural disaster, insofar as it may have been the result of a leak from a Chinese lab of man-made, genetically engineered viral material. The Second Circuit decided it need not resolve that issue, and seized on different language in the same clause about circumstances beyond the parties’ “reasonable control”: Continue Reading Second Circuit: COVID-19 Pandemic Triggers Contractual Force Majeure Clause for Circumstances Beyond the Parties’ “Reasonable Control”

In an opinion this week, the Second Circuit upheld Judge Rakoff’s ruling that Major League Baseball’s sign-stealing scandals did not give rise to a right to sue the league or the offending teams:

At its core, this action is nothing more than claims brought by disgruntled fantasy sports participants, unhappy with the effect that cheating in MLB games may have had on their level of success in fantasy sports contests. We hold that alleged misrepresentations or omissions by organizers and participants in major league sports about the competition itself—such as statements about performance, team strategy, or rules violations—do not give rise to plausible claims sounding in fraud or related legal theories brought by consumers of a fantasy sports competition who are utilizing a league’s player statistics.

More specifically, among other pleading defects, plaintiffs have not plausibly alleged . . . actual or reasonable reliance upon the alleged fraudulent and negligent misrepresentations about player performance and electronic sign-stealing. Apart from actual reliance, no consumer of fantasy baseball competitions could plausibly allege that, in paying to participate in the competition, they reasonably relied upon these statements in believing that the sport of major league baseball was free from intentional violations of league rules by teams and/or individual players. Instead, any reasonable spectator or consumer of sports competitions—including participants in fantasy sports contests based upon such sporting events—is undoubtedly aware that cheating is, unfortunately, part of sports and is one of many unknown variables that can affect player performance and statistics on any given day, and over time.

Continue Reading Second Circuit: Fantasy Sports Contestants Cannot Sue Over Baseball Cheating Scandals

Last Thursday, Judge Caproni rejected a proposed joint scheduling order that provided for a party’s brief to be due on a Monday, citing her policy to set deadlines for the end of the week to avoid making associates work over the weekend.  Specifically, Judge Caproni said:

The Court recognizes that Defendants requested that their reply brief be due on Monday, May 16, 2022.  To avoid associates working on the weekends, the Court’s policy is to set deadlines towards the end of the week.

(Hat Tip: Elliot Stein of Bloomberg via Twitter)

In an opinion Friday, Judge Kaplan denied a motion by former President Donald Trump to amend his answer to add a counterclaim against the plaintiff, E. Jean Carroll, who accuses Trump of defamation based on his public statements alleging that she fabricated sexual assault allegations against him (see our prior coverage here).

The proposed counterclaim would have sought attorney fees and other relief under New York’s anti-SLAPP law. Judge Kaplan found that the counterclaim was futile, but went further to emphasize that the counterclaim was part of a larger pattern of stalling, including: evading service; pursuing  “frivolous motions practice”; seeking a stay in favor of another case, even though Trump previously argued the other case was unrelated; and, finally, attempting to have the Attorney General intervene.

Judge Kaplan found these tactics to be improper: Continue Reading Judge Kaplan Harshly Criticizes Donald Trump’s Delay Tactics in Defamation Case, Refuses Proposed Counterclaim Amendment