Tuesday, May 21, 2024

Defamation Dismissed

The dismissal of a defamation claim brought by a parent who sued the private school that his child had attended has been affirmed by the New York Appellate Division for the First Judicial Department

The complaint failed to state a claim for defamation because defendant’s statements to the New York Post and Fox News were nonactionable expressions of opinion and were substantially true. The use of the words “liar” or “lying” can sometimes be deemed actionable. However, under the circumstances of the case, defendant’s assertion that plaintiff was lying was rhetorical. First, the tone of both statements, which were made in the context of a public dispute between plaintiff and defendant, indicates to the reader that the person making the statement is expressing his or her personal views, in that it reflects a degree of frustration and resentment by defendant at plaintiff’s allegations (see Sandals Resorts Intl. Ltd. v Google, Inc., 86 AD3d 32, 43 [1st Dept 2011]). Second, in the context of the entire New York Post article, defendant’s remark of calling the allegations against it untrue can only be understood as a specific denial of plaintiff’s factual accusations and cannot be construed as defamatory (see Independent Living Aids v. Maxi-Aids, Inc., 981 F Supp 124, 128 [ED NY 1997]). Moreover, the documentary evidence presented by defendant in connection with the motion to dismiss demonstrated that the challenged statements were substantially truthful, if not absolutely truthful (see Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]).

Jewish Press reported

In late April, Harvey Goldman told “Fox & Friends First” that he decided to pull his daughter, 9, from the Abraham Joshua Heschel School on the west side of Manhattan because the school was teaching students about Black Lives Matter, a movement Goldman believes is “Marxist and destructive.”

On Tuesday, Goldman told Fox News’s Tucker Carlson that other Heschel parents are taking their children out of the school, a claim Goldman repeated on Wednesday, when he told the NY Post other parents are following his example.

“Nobody I’ve spoken to believes this is good for children,” Goldman told the Post. “I am personally hearing from a handful of parents who are also pulling their kids out of the school — and their friends are, too.”

The Heschel School released a statement saying, “We are a Jewish day school and very proud of our secular and religious curriculum, which Mr. Goldman is fundamentally misrepresenting. His family informed us last summer that they would likely relocate to Florida for financial reasons. We were surprised to read about his new explanation for the move and question his motives for making such statements at this time.”

The Heschel School defines itself as a “pluralistic, egalitarian community that includes families from a wide range of Jewish backgrounds, practices, and beliefs,” and says that “boys and girls, men and women participate equally in all aspects of the school’s religious, intellectual, and communal life.”

According to Webster’s, Woke is a “slang term that is easing into the mainstream from some varieties of a dialect called African American Vernacular English.” Stay woke became a watch word in parts of the black community for those who were self-aware, questioning the dominant paradigm and striving for something better. But stay woke and woke became part of a wider discussion in 2014, immediately following the shooting of Michael Brown in Ferguson, Missouri. The word woke became entwined with the Black Lives Matter movement; instead of just being a word that signaled awareness of injustice or racial tension, it became a word of action. Activists were woke and called on others to stay woke.

On “Fox & Friends First,” Goldman related that the Heschel School was “teaching these young children about having white privilege,” and about “the murder of George Floyd,” even though at the time it “wasn’t an established murder” yet.

Last September, Goldman sent a letter to the school, saying, “First and foremost, neither I nor my child, have ‘white privilege,’ nor do we need to apologize for it. Suggesting I do is insulting. Suggesting to my 9-year-old child she does is child abuse, not education.”

According to Goldman, a Heschel administrator said he should take his daughter out of the school, which he did, and, according to the Post, he enrolled his daughter in a public school, but not before making sure the school did not teach critical race theory (CRT) in the curriculum.

As to his claim that other angry Heschel parents are following his example, Goldman said, “My friend has a kindergartner and her child came home and asked, ‘Mommy, am I bad because I’m white?’”

According to Goldman, parents from all over flood his Facebook account with messages of support, to which he says, “I’m not a social warrior – I just think it’s wrong what they’re doing.”

In conclusion, it’s still not clear whether Harvey Goldman decided to move his daughter to Florida in response to the Heschel school’s progressive agenda, or the other way around. It’s also not clear whether there really is a movement of Jewish parents plucking their children out of their $43,000 a year school program for the progressive thing or any other reason. It’s quite likely, in fact, that Jewish parents who joined the Heschel “pluralistic, egalitarian community that includes families from a wide range of Jewish backgrounds, practices, and beliefs” were probably Woke enough to begin with.

(Mike Frisch)

May 21, 2024 in Current Affairs | Permalink | Comments (0)

Wednesday, May 15, 2024

What It Is Is Football

The Nevada Supreme Court has held that Jon Gruden's dispute with the NFL is subject to arbitration.

But his emails

In October 2021, the Wall Street Journal and New York Times published articles detailing controversial emails Gruden reportedly sent between 2011 and 2018 while working for ESPN. Shortly thereafter, Gruden resigned from the Raiders and lost his other endorsements and sponsorships. Gruden and the Raiders subsequently entered a confidential settlement agreement. Gruden then sued Goodell and the NFL ("the NFL Parties"), alleging they purposely leaked his emails to the media and forced his resignation. The NFL Parties moved to cornpel arbitration, and the district court denied the motion.

Majority holding

Gruden's employment agreement incorporated the NFL Constitution by reference, and he agreed to arbitrate this claim under the arbitration clause in Article VIII § 8.3(E) of the NFL Constitution. Gruden has presented no contract defenses that make that clause unenforceable. The district court erred in its denial of the NFL Parties' motion to compel
 arbitration under the NFL Constitution. Accordingly, we REVERSE the district court's order denying the motion to compel arbitration and REMAND for the district court to grant that motion consistent with this order.

BELL, J., dissenting:

I write separately because I disagree with the majority's interpretation of the NFL Constitution arbitration clause, and I would hold that the clause does not apply to former employees. I would also find the NFL Constitution arbitration clause unenforceable due to unconscionability. Although I agree the district court erred in certain findings, I would affirm because the outcome is correct.


Gruden is not a team employee; he is a former employee. No action by Gruden at issue in this case occurred during his employment with the Raiders. Gruden sent the offensive emails prior to his employment and filed a complaint after his employment ended. Likewise, the NFL Parties moved to compel arbitration when Gruden was no longer a team employee. The majority points out that the NFL Parties allegedly leaked the emails and interfered with Gruden's contract while the Raiders employed Gruden, but the "facts and occurrences" the majority points to were caused by the NFL Parties, not Gruden. Regarding Goodell's opinion, the conduct at issue in this dispute is his own, and a finding that his own conduct is detrimental does not empower Goodell to arbitrate a claim brought by a non-employee.


The majority indicates, and I agree, that the employment agreement is substantively unconscionable because Goodell acting as arbitrator is outrageous. Furthermore, the NFL is empowered to unilaterally amend the NFL Constitution—including the arbitration clause at issue—at any time without notice. These factors alone show an extreme level of substantive unconscionability. Applying California's sliding scale test as cited in the majority, with a nominal amount of procedural unconscionability and an extreme amount of substantive unconscionability, I would affirm the district court's conclusion that this arbitration clause is unenforceable.

The case is  THE NATIONAL FOOTBALL LEAGUE; AND ROGER GOODELL, Appellants, vs. JON GRUDEN, Respondent, decided May 14, 2024. (Mike Frisch)

May 15, 2024 in Current Affairs | Permalink | Comments (0)

Tuesday, May 14, 2024

"A Significant And Imminent Threat"

The New York Appellate Division for the First Judicial Department declined to disturb a trial court order in the Trump criminal case

We decline to exercise our discretion or to grant the relief that petitioner seeks here. It is well established that “[a]lthough litigants do not surrender their First Amendment Rights at the courthouse door, those rights may be subordinated to other interests that arise in [the trial] setting” (United States v Trump, 88 F4th 990, 1007 [DC Cir 2023] [internal quotation marks omitted] [the Federal Restraining Order Decision]). In the Federal Restraining Order Decision, the circuit court weighed the three key questions bearing on the entry of a restraining order against a criminal defendant: “(1) whether the Order is justified by a sufficiently serious risk of prejudice to an ongoing judicial proceeding; (2) whether less restrictive alternatives would adequately address that risk; and (3) whether the Order is narrowly tailored, including whether the Order effectively addresses the potential prejudice” (id.). The Federal Restraining Order is nearly identical to the Restraining Order issued against petitioner in the underlying criminal case (id. at 1028).

Petitioner brings this petition because he disagrees with where the circuit court drew the line in balancing the competing considerations of his First Amendment rights to free expression and the effective functioning of the judicial, prosecutorial and defense processes (id. at 1027-1028, citing Landmark Communications v Virginia, 435 US 829 [1978]). Weighing these concerns, the circuit court ultimately concluded that, given the record, the court had “a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation aimed at preventing trial participants and staff from performing their functions within the trial process” (Trump, 88 F4th at 1014). This Court adopts the reasoning in the circuit court’s Federal Restraining Order Decision.

The Federal Restraining Order Decision properly found that the order was necessary under the circumstances, holding that “Trump’s documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process” (id. at 1012). First, the circuit court concluded that petitioner’s directed statements at potential witnesses concerning their participation in the criminal proceeding posed a significant and imminent threat to their willingness to participate fully and candidly, and that courts have a duty to shield witnesses from influences that could affect their testimony and undermine the integrity of the trial process (id.; see also Sheppard v Maxwell, 384 US 333, 359 [1966]). Justice Merchan properly determined that petitioner’s public statements posed a significant threat to the integrity of the testimony of witnesses and potential witnesses in this case as well.

(Mike Frisch)

May 14, 2024 in Current Affairs | Permalink | Comments (0)

Saturday, May 11, 2024

Pirates Of Cape Cod

The Delaware Court of Chancery issued an 122 page  opinion in litigation over the booty recovered from a pirate ship that sank over 300 years ago

The plaintiff is a sophisticated business consultant, the former director of a publicly traded corporation, and stockholder of Maritime Explorations, Inc. (“MEI”). MEI holds significant rights in the only identified pirate shipwreck ever discovered—the Whydah Galley—and has worked to excavate the wreckage with varying levels of success.

The plaintiff brings this action to challenge (1) specific incidents of alleged fiduciary misconduct by MEI’s two directors (the defendants) over the past three decades and (2) an allegedly unfair 2018 merger (the “Merger”) that the defendants caused MEI to enter and for which the plaintiff seeks rescission.

Despite being on inquiry notice of his potential non-Merger claims many years prior, the plaintiff did not act. And for 23 years, while roosting atop his claims, the plaintiff continued his slumber. In that time, the defendants have become severely prejudiced in their ability to mount a defense. Indeed, among other things, two individuals who would have been key witnesses died. This includes one of the two defendants in this action. Likewise, a flood destroyed many of MEI’s documents and records several years before the plaintiff initiated this action.

It would undermine the equitable principles embodied in the doctrine of laches to find for the plaintiff on the claims challenging acts that took place decades ago. Among other things, those principles are concerned with the natural decay of evidence over time and a defendant’s ability to mount a defense with available evidence. That is, with the passage of time comes the increasing risk that evidence that may have once been available to prove a defendant’s case has succumbed to the destructive forces of nature. Indeed, under circumstances like these, such delayed claims pose a substantial risk of unjust outcomes. There is a serious risk that a defendant will be held liable either because he bears the burden of proof and can no longer obtain exonerating evidence or, more perniciously, because only the evidence damning him was, by chance alone, not the subject of decay. Delaware law thus compels me to reject the plaintiff’s delayed claims.

The plaintiff awoke to raise these claims only after learning that the defendants caused MEI to merge with an entity the defendants owned. The defendants undertook the Merger in anticipation of a significant payout and their belief they were close to uncovering the “mother [l]ode.” Lacking any semblance of fair process and no reasonable metric for evaluating the fairness of the price, the defendants used the Merger to grant themselves additional equity and to extract rights to a substantially greater share of the Whydah assets, all to the detriment of the minority stockholders. Under the facts presented here, the plaintiff prevails on this timely Merger claim, and rescission is the appropriate remedy.

The prize

[Defendant] Clifford is an explorer. His exploration—specifically of the Whydah Galley pirate ship—has led to this litigation. The Whydah sank off the coast of Cape Cod in 1717 while under the command of the pirate Sam Bellamy. Aboard, so it is rumored, were chests of money and treasure from at least 53 other vessels the Whydah’s crew had robbed. The Whydah lay on the ocean floor for over 250 years until 1982, when Clifford discovered debris off the coast of Massachusetts while operating his company Maritime Underwater Surveys, Inc. (“MUS”). Believing the debris to be from the Whydah’s wreckage, Clifford, through MUS, initiated and succeeded in a federal admiralty action in which he sought sole title to the Whydah. In May 1983, while the admiralty litigation was ongoing, Clifford formed MEI to facilitate his excavation of the Whydah wreckage.

After forming MEI, Clifford and MUS assigned their rights in the Whydah to MEI.  Then, Clifford sought equity financing through MEI to fund the Whydah’s costly excavation. As a result of these efforts, MEI raised over $1 million in financing through two private placements between 1983 and 1986.  In addition to the stock issued through the private placements, MEI also issued stock to compensate those involved in its excavation and business operations. MEI continued this practice for many years. These individuals—the participants in the private placements and those MEI compensated with stock for their services—are MEI’s minority stockholders.

Since its inception, MEI has recovered roughly 15,000 coins. Although Defendants “haven’t found the mother lode yet,” the coins they have recovered remain the “world’s only pirate treasure.”  Along with the coins, Defendants have recovered many other artifacts, including cannons, guns, and the Whydah’s bell.

A falling out among the present litigants

Clifford testified under oath to events that took place in a meeting at the Harvard Club. Clifford asserts that, in addition to making “anti-Semitic comments” at the meeting, Buddenhagen “exposed himself at the table, stood up and said, ‘Meet OneEyed Willy.’” These events were followed promptly by WPLP’s letter to Defendants asking that they remove Buddenhagen from the Management Committee. Defendants acquiesced.

Buddenhagen vociferously denies Clifford’s allegations and asserts they are entirely false.

The Chancellor

To be clear, I am unable to determine with any remote degree of confidence what happened at the Harvard Club three decades ago. At this point, I have only the testimony of two individuals who are, to put it mildly, quite adverse to each other and interested in the outcome of this litigation.

The litigation

On January 9, 2019, Buddenhagen made a books and record demand pursuant to Delaware General Corporation Law (“DGCL”) Section 220. On April 4, 2019, Buddenhagen commenced this action.  On April 18, 2020, Lazier passed away, after which the Court granted Plaintiff’s motion to substitute the Estate of Robert T. Lazier as a party.

Trial took place after another Vice Chancellor rejected a settlement agreement.

The present action centers around two issues. The first deals with whether Defendants breached their fiduciary duties by engaging in the Buyout, the events involving HS and AEI, and Defendants’ other non-Merger acts. The second asks whether the Merger was both validly approved and entirely fair.

To the former, Plaintiff argues that over the past 30 years Defendants have breached their duty of loyalty to MEI by, among other things, usurping MEI’s corporate opportunities, diverting and converting corporate funds and assets, and engaging in rampant self-dealing. In response, Defendants advance a laches defense, which, they argue, bars Plaintiff “from challenging the hornets’ nest of decades[-]old occurrences in connection with this litigation.”

No one can deny that Defendants faced tremendous prejudice from Plaintiff’s delay in bringing this action. Textbook examples of laches prejudice—including the destruction of records through floods and the death of multiple key witnesses—make it very clear that, if evidence existed that could prove Defendants’ conduct over the prior decades was proper, Defendants have been severely prejudiced in their ability to produce it. It is also clear that Plaintiff was on inquiry notice of the alleged breaches many years before initiating this action. Accordingly, principles of equity, which manifest themselves through the doctrine of laches, compel me to conclude that Plaintiff is time-barred from asserting its non-Merger claims.

As to the second issue, Plaintiff argues a majority of MEI’s common stock did not approve the Merger because Defendants did not hold the requisite percentage of MEI stock. Next, Plaintiff attacks the Merger’s fairness. Defendants raise three responses to fairness. First, Dr. Margolin’s assessment suggests the transaction was fair; second, they relied on Bergman’s belief the Merger consideration was fair; and third, they subjectively believed the Merger consideration was fair. As I explain below, none of Defendants’ arguments as to fairness prevail.

Wikipedia on Sam Bellamy

Captain Samuel Bellamy (c. 23 February 1689 – 26 April 1717), later known as "Black Sam" Bellamy, was an English sailor turned pirate during the early 18th century. He is best known as the wealthiest pirate in recorded history, and one of the faces of the Golden Age of Piracy. Though his known career as a pirate captain lasted little more than a year, he and his crew captured at least 53 ships.

Called "Black Sam" in Cape Cod folklore because he eschewed the fashionable powdered wig in favor of tying back his long black hair with a simple band, Bellamy became known for his mercy and generosity toward those he captured on his raids. This reputation earned him another nickname, the "Prince of Pirates". He likened himself to Robin Hood, with his crew calling themselves "Robin Hood's Men"

(Mike Frisch)

May 11, 2024 in Current Affairs | Permalink | Comments (0)

Friday, May 10, 2024

No Defense At All

The United States Court of Appeals for the District of Columbia Circuit affirmed a contempt conviction

In September 2021, the House Select Committee to Investigate the January 6th Attack on the United States Capitol issued a subpoena to appellant Stephen Bannon to testify and provide documents. Bannon did not comply—he knew what the subpoena required but did not appear or provide a single document. Bannon was later convicted of violating the contempt of Congress statute, 2 U.S.C. § 192, which criminalizes “willfully” failing to respond to a congressional subpoena. Bannon insists that “willfully” should be interpreted to require bad faith and argues that his noncompliance does not qualify because his lawyer advised him not to respond to the subpoena. This court, however, has squarely held that “willfully” in Section 192 means only that the defendant deliberately and intentionally refused to comply with a congressional subpoena, and that this exact “advice of counsel” defense is no defense at all. See Licavoli v. United States, 294 F.2d 207, 207 (D.C. Cir. 1961). As both this court and the Supreme Court have repeatedly explained, a contrary rule would contravene the text of the contempt statute and hamstring Congress’s investigatory authority. Because we have no basis to depart from that binding precedent, and because none of Bannon’s other challenges to his convictions have merit, we affirm.

(Mike Frisch)

May 10, 2024 in Current Affairs | Permalink | Comments (0)

Tuesday, May 7, 2024

Non-Disparagement Provision Violates Public Policy

The New Jersey Supreme Court held that a non-disparagement provision in a settlement agreement in a matter involving sex discrimination, harassment and retaliation violated public policy.

From the case headnotes

In this appeal, the Court considers whether a “non-disparagement provision” in a settlement agreement can stop parties from revealing details relating to claims of discrimination, retaliation, or harassment.

Plaintiff Christine Savage began her career as a police officer with the Neptune Township Police Department in 1998. In December 2013, she filed a lawsuit against the Department, the Township of Neptune, and others for sexual harassment, sex discrimination, and retaliation, contrary to the Law Against Discrimination (LAD). The parties entered into a settlement agreement in 2014. Savage filed a second action in April 2016 against a number of the same defendants, alleging that they had violated the settlement agreement and engaged in continuing-- and “intensified” -- sex discrimination, harassment, and retaliation.

The parties entered into another settlement agreement in July 2020. Paragraph 10 of the agreement requires in part that the parties agree not to make or cause others to make any statements “regarding the past behavior of the parties” that “would tend to disparage or impugn the reputation of any party. The parties agree that this non-disparagement provision extends to statements, written or verbal, including but not limited to, the news media, radio, television, . . . government offices or police departments or members of the public.”

A television news show aired a story about the case and an interview with Savage in August 2020. Defendants contend that Savage violated the nondisparagement provision of the settlement agreement during the interview both through comments she made, such as “you abused me for about 8 years,” and comments by the interviewer, such as “Savage says the harassment and retaliation intensified with bogus disciplinary charges.”

Defendants filed a motion to enforce the second settlement agreement. The trial court granted the motion, finding that the LAD barred only non-disclosure and confidentiality agreements and that Savage instead violated a non disparagement clause. The Appellate Division affirmed in part and reversed in part. 472 N.J. Super. 291, 314 (App. Div. 2022). Relying on the definitions of non-disclosure and non-disparagement provisions set forth in Black’s Law Dictionary, the appellate court found the parties’ non-disparagement clause enforceable but held that Savage had not violated it. 

Key holdings

Through N.J.S.A. 10:5-12.8(a), a section of the LAD that was enacted in the wake of the “#MeToo movement,” the Legislature removed barriers that previously made it difficult for individuals to report abuse. Survivors of discrimination, retaliation, and harassment now have a legal right to tell their story-- a right that cannot be taken away by a settlement agreement. Because the scope of the agreement in this case would bar individuals from describing an employer’s discriminatory conduct, the agreement encompasses speech the LAD protects. The non-disparagement clause in the agreement is against public policy and cannot be enforced...

Paragraph 10 of the settlement agreement uses expansive language that encompasses speech about claims of discrimination, retaliation, and harassment. The scope of the agreement -- barring all statements that would tend to disparage a person -- is quite broad. It would prevent employees from revealing information that lies at the core of what section 12.8 protects -- details about claims of discrimination. In that way, the agreement directly conflicts with the LAD. The carveout at the end of paragraph 10 does not save the agreement. The last sentence states that “testimony or statements of Plaintiff related to other proceedings including lawsuits” is not precluded. Section 12.8’s protections, however, extend beyond statements made in pleadings or courtrooms. Survivors of discrimination and harassment have the right to speak about their experiences in any number of ways, and they can no longer be restrained by confidentiality provisions in employment contracts or settlement agreements.

The court remanded with guidance for the further proceedings. (Mike Frisch)

May 7, 2024 in Current Affairs | Permalink | Comments (0)

Monday, May 6, 2024

A Win For Zion

The United States Court of Appeals for the Fourth Circuit affirmed rulings in favor of a high-profile athlete sued by his former agent. 

In this case, we interpret the North Carolina Uniform Athlete Agents Act, which governs contracts between student-athletes and their agents. Prime Sports Marketing, LLC, and Gina Ford argue that their former client, Zion Williamson, wasn’t a “student athlete” when he contracted with them, so he can’t benefit from the Act’s protections.

The district court rejected that argument. It also granted summary judgment to Williamson on Prime’s contract and tort claims.

Because Williamson was engaged in an intercollegiate sport while on the Duke University men’s basketball team, and was thus a “student-athlete,” we agree with the district court that Prime’s failure to comply with the Act’s requirements voided the contract. We also affirm the district court’s grant of summary judgment on Prime’s contract and tort claims.

The dispute

Williamson’s talents generated interest not just from basketball fans, but from agents eager to represent him. During his freshman year, Williamson began to communicate with Gina Ford, a marketing agent and Prime’s president. Ford met with Williamson and his mother and stepfather several times to discuss Prime representing Williamson as his marketing agent when he turned pro.

After Williamson played his last game at Duke (but before being drafted), he hired Prime as his marketing agent. Under the agreement, the parties could terminate the contract only after five years, and then, only for cause.

For a few weeks, all seemed well. Ford secured a cover shoot and article about Williamson for Slam Magazine. She also sent Williamson two “Partnership Summaries,” which contained a compilation of one-page offers purportedly made to Williamson by various companies, J.A. 1849–97, 1965, as well as a “Brand Management Strategy,” which discussed Williamson’s brand and identified “potential brand partnerships,” J.A. 1426–45.

But the day after receiving the strategy document, Williamson’s mother and stepfather told Ford that Williamson was terminating the Prime contract and instructed her to stop negotiating with third parties on Williamson’s behalf. Unbeknownst to Ford, Williamson’s parents also forwarded the strategy document and Partnership Summaries to agents from Creative Artists Agency (“CAA”), a competitor agency that Williamson had retained as his player agent.

Student-athlete status

We agree with Williamson. If a student is engaged in an intercollegiate sport when he signs an agency contract, he is a student-athlete subject to the Act. The permanent ineligibility clause doesn’t apply to Williamson, who was engaged in a single sport.

In our view, the legislature included the Act’s second definitional sentence of “student-athlete” to protect two-sport athletes, and Prime’s interpretation runs contrary to that purpose. While the second sentence might suggest that a student-athlete who violates NCAA rules can’t benefit from the Act’s protections, that construction works only if we ignore the first sentence. As was decidedly not the case with Williamson, an athlete who is “permanently ineligible” to compete is, by definition, not “engage[d] in, eligible to engage in, or potentially eligible to engage in an intercollegiate sport.”

Contract void

Now that we’ve determined that the Act applies to the Prime contract, we must decide whether the statute voids the contract. It does.

Prime concedes that Ford wasn’t registered as an agent in North Carolina, and under the Act, any agency contract between a student-athlete and an agent who fails to register in North Carolina is automatically void. N.C. Gen. Stat. § 78C-88(d). Likewise, it’s undisputed that the Prime contract didn’t contain the requisite warnings. So even if the contract weren’t already void, Williamson was free to void it, see N.C. Gen. Stat. § 78C94(d), which he did both via email and through counsel.

Because the contract was void, the district court correctly granted Williamson’s motion for judgment on the pleadings. And since we can’t make a retroactive determination about Williamson’s permanent ineligibility to compete, we agree with the district court that any motion to amend Prime’s complaint with other evidence of Williamson’s rule violations would be futile.

The court affirmed the rejection of counts alleging fraud and misappropriation of trade secrets. (Mike Frisch)

May 6, 2024 in Current Affairs | Permalink | Comments (0)

Victim Cannot Be Silenced

The New Jersey Supreme Court has held that a regulation restricting a victim's ability to speak out on an harassment claim is unconstitutionally overbroad

In this appeal, we consider the constitutionality of a regulation that applies to harassment and discrimination investigations in State workplaces.

Part of the regulation requires State investigators to “request” that anyone interviewed “not discuss any aspect of the investigation with others.” N.J.A.C. 4A:7-3.1(j).

The regulation’s request for confidentiality has a broad sweep. Investigators must ask all victims and witnesses who are interviewed not to speak to others -- in other words, not to a spouse, an attorney, or the public. And the regulation has no time limit; the request extends indefinitely, even after an investigation has ended.

An exception in the regulation allows victims and witnesses to disclose information if “there is a legitimate business reason to” do so. Ibid. But the phrase is not defined, and a reasonable person would find it difficult to understand what the vague language means. In addition, investigators are not required to tell victims and witnesses that they are free to disregard the State’s request.

In this case, an employee of the Department of Treasury lodged an internal complaint that her manager sexually harassed her at work. Investigators interviewed her and, consistent with the version of the regulation then in effect, directed her not to discuss the investigation with anyone.

The Civil Service Commission (CSC) amended the regulation afterward. It now calls on investigators to “request,” not “direct,” that victims and witnesses remain silent about all aspects of the investigation. Ibid. Plaintiff’s complaint in this appeal seeks a declaratory judgment that the current regulation is unconstitutional.

The State Constitution guarantees an affirmative right to speak freely that is broader than the protections in the First Amendment. Compare N.J. Const. art. I, ¶ 6, with U.S. Const. amend. I. The guarantee extends to victims of harassment and discrimination who have a right to speak out about what happened to them.

Although the regulation seeks to advance legitimate interests -- “to protect the integrity of the investigation, minimize the risk of retaliation . . . , and protect the important privacy interests of all concerned,” N.J.A.C. 4A:7-3.1(j), it reaches too far in trying to achieve those aims and chills constitutionally protected speech. We therefore hold that the rule is overbroad under the State Constitution. As a result, we reverse the judgment of the Appellate Division and strike the relevant part of the regulation.

The complaint

In May 2016, Usachenok filed an internal complaint with the Equal Employment Opportunity and Affirmative Action (EEO/AA) office in the Department of Treasury. She claimed her supervisor John Mayo sexually harassed her and subjected her to a hostile work environment.

Meeting with the investigator

Consistent with the text of N.J.A.C. 4A:7-3.1(j) (the “regulation” or “paragraph (j)”) at the time, Sanders directed Usachenok not to discuss the investigation with others and had her sign a form to acknowledge the confidentiality directive. Sanders also advised Usachenok that she could be disciplined if she violated the directive.

According to Usachenok, at a meeting in June 2016, Sanders asked her to sign a statement the investigators had prepared that summarized her allegations. After reading the statement, Usachenok said it needed to be changed “to accurately reflect her complaints.” When Sanders declined to make the changes, Usachenok asked if she could call her husband. Her husband, an attorney, advised her not to sign the document. According to Usachenok, Sanders then accused her of violating the confidentiality directive and threatened that she could be fired.

In late August 2016, Usachenok received a letter from another Treasury investigator that allegedly confirmed some but not all of her claims against Mayo.


The Appellate Division also concluded that the amended regulation did not violate the public policies underlying the Law Against Discrimination (LAD). In doing so, the court stressed the important values behind a request for confidentiality: to “promote[] a fair investigatory process that protects both the accuser and the accused while respecting the free-speech rights of all.”

The Appellate Division ultimately remanded the case to the trial court and directed it to enter an order dismissing Usachenok’s challenge to the regulation.

(Mike Frisch)

May 6, 2024 in Current Affairs | Permalink | Comments (0)

Friday, May 3, 2024

And Oscar Goes To...Remand

The Kansas Supreme Court has concluded that an appeal over ownership of a dog is premature

At the heart of this case lies a dispute over the ownership of Oscar, a purebred Cane Corso show dog. On one side of the dispute stands Oscar's breeder, Elizabeth "Betsy" Shauck; on the other, Dave Jennings and Emily McLeod, who have raised Oscar since puppyhood.

But the procedural history of the case precludes us from reaching the heart of the matter, and we conclude that both the Kansas Court of Appeals panel and the district court acted prematurely in doing so. Consequently, we affirm in part and reverse in part the decision of the panel, reverse the decision of the district court, and remand to the district court for further proceedings.

The dog in the fight

Because the issues before us primarily concern the procedural aspects of the case, we refer to the panel's recitation of the underlying facts. Briefly, Oscar is an award-winning show dog. Betsy claims she owns Oscar. Dave and Emily claim they do. Dave and Emily petitioned to quiet title to Oscar against Betsy. Betsy counterclaimed for breach of contract, replevin, conversion, for a restraining order and preliminary injunction, and to quiet title. Her preliminary injunction counterclaim asked the district court to enjoin Dave and Emily "from harboring Oscar, ordering his immediate return to [Betsy], and restraining [Dave and Emily] from neutering him."

After telling the story of the proceedings below

In a nutshell, without informing the parties, the district court's decision retroactively changed practically everything: the elements to be proved, the burden of proof on each element, and the party obligated to carry the burden on each element. Dave and Emily were denied due process from the lack of clear notice that they, not Betsy, had to prove each element of each cause of action they made in the lawsuit, and not just to defend Betsy's burden to prove her counterclaim for preliminary injunction. Dave and Emily have thus shown they were prejudiced by the court's actions.

So the panel correctly held that the district court made a legal error in consolidating the hearing on Betsy's request for a preliminary injunction with a trial on the case's merits. The district court abused its discretion by going beyond making the findings of fact and conclusions of law needed to determine whether Betsy should prevail on her counterclaim for a preliminary injunction.

Review below

We need not belabor the point. The panel, like the district court, got ahead of itself in trying to resolve the case's merits before the appropriate procedural time. We hold that, after the panel correctly concluded the district court erred by improperly accelerating the procedural phase of the case without adequate notice, it should have remanded the matter for further proceedings—beginning with the district court's ruling on Betsy's request for a preliminary injunction.

The Court of Appeals decision provides extensive details about the parties and the dispute.

No one has suggested that Kristi Noem serve as the arbitrator. (Mike Frisch)

May 3, 2024 in Current Affairs | Permalink | Comments (0)

Thursday, May 2, 2024

Buffer Zone

The Massachusetts Supreme Judicial Court affirmed an order establishing a "buffer zone" around a high-profile trial

The petitions stemmed from the ongoing trial, in the Superior Court in Norfolk County, in Commonwealth vs. Karen Read, No. 2282CR00117. Read has been indicted for murder, among other crimes, and the case has garnered significant public interest, including protests and demonstrations in the vicinity of the court house complex. In the course of the trial court proceedings, the Commonwealth filed a "Motion for Buffer Zone Surrounding Norfolk Superior Court and Request for Order Prohibiting Signs or Clothing in Favor of Either Party or Law Enforcement," seeking a 500-foot buffer zone around the Norfolk County Superior Court House and arguing, essentially, that the demonstrations and protests near the court house jeopardized a fair trial.


On the basis of these details, with which the judge has reason to be familiar, the judge concluded that a 200-foot buffer zone was warranted to help ensure a fair trial, free from outside influence. The judge also denied the individual petitioners' motion to intervene.

On appeal

Ultimately, the trial judge struck a balance between the right to protest or demonstrate and the defendant's right to a fair trial. As the Commonwealth notes, it too has the right to, and an interest in the defendant receiving, a fair trial, see Commonwealth v. Underwood, 358 Mass. 506, 511 (1970), which is also supported by the judge's order. The single justice did not commit an error of law or abuse his discretion in denying the petitions pursuant to G. L. c. 211, § 3, seeking relief from that order, or from the denial of the motion to intervene. For the foregoing reasons, we issued an order on April 26, 2024, affirming the judgment.

(Mike Frisch)

May 2, 2024 in Current Affairs | Permalink | Comments (0)

Thursday, April 25, 2024

New Trial For Harvey Weinstein; Dissent: "New York's Women Deserve Better"

The New York Court of Appeals has granted Harvey Weinstein a new trial

Every person accused of a crime is constitutionally presumed innocent and entitled to a fair trial and the opportunity to present a defense (see U.S. Const Amend VI, XIV; NY Const art I, § 6; Estelle v Williams, 425 US 501, 503 [1976] [“The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment” and “(t)he presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice”]; Crane v Kentucky, 476 US 683, 690 [1985] [“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment . . . or in the Compulsory Process or Confrontation clauses of the Sixth Amendment . . . the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense’ ”], quoting California v Trombetta, 467 US 479, 485 [1984]).

Under our system of justice, the accused has a right to be held to account only for the crime charged and, thus, allegations of prior bad acts may not be admitted against them for the sole purpose of establishing their propensity for criminality (see People v Molineux, 168 NY 264 [1901]). Nor may the prosecution use “prior convictions or proof of the prior commission of specific, criminal, vicious or immoral acts” other than to impeach the accused’s credibility (People v Sandoval, 34 NY2d 371, 374 [1974]). It is our solemn duty to diligently guard these rights regardless of the crime charged, the reputation of the accused, or the pressure to convict (see Boyd v United States, 116 US 616, 635 [1886] [“It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon”]).

Defendant was convicted by a jury for various sexual crimes against three named complainants and, on appeal, claims that he was judged, not on the conduct for which he was indicted, but on irrelevant, prejudicial, and untested allegations of prior bad acts. We conclude that the trial court erroneously admitted testimony of uncharged, alleged prior sexual acts against persons other than the complainants of the underlying crimes because that testimony served no material non-propensity purpose. The court compounded that error when it ruled that defendant, who had no criminal history, could be cross examined about those allegations as well as numerous allegations of misconduct that portrayed defendant in a highly prejudicial light. The synergistic effect of these errors was not harmless. The only evidence against defendant was the complainants’ testimony, and the result of the court’s rulings, on the one hand, was to bolster their credibility and diminish defendant’s character before the jury. On the other hand, the threat of a cross examination highlighting these untested allegations undermined defendant’s right to testify. The remedy for these egregious errors is a new trial.

However, we reject defendant’s claim that the third-degree rape prosecution was untimely under CPL 30.10 because, as a New York resident, his brief absences from the State before the authorities were aware of the crime did not toll the limitations period. Defendant’s argument finds no support in the statutory text. Therefore, the trial court properly discounted the days defendant was continuously outside the state and correctly held that the prosecution was not time-barred. Defendant may be retried on this count.

SINGAS, J. (dissenting):

Fundamental misunderstandings of sexual violence perpetrated by men known to, and with significant power over, the women they victimize are on full display in the majority’s opinion. By whitewashing the facts to conform to a hesaid/she-said narrative, by ignoring evidence of defendant’s manipulation and premeditation, which clouded issues of intent, and by failing to recognize that the jury was entitled to consider defendant’s previous assaults, this Court has continued a disturbing trend of overturning juries’ guilty verdicts in cases involving sexual violence. The Molineux rule—created by this Court—has never been static. Instead, its use has evolved over time to meet the challenges of complex criminal prosecutions. Unfortunately, in the context of sexual assault, that evolution lapses today with a decision that has all but ended the use of Molineux evidence in such cases. I fully join Judge Cannataro’s dissent but write separately to highlight how the majority’s determination perpetuates outdated notions of sexual violence and allows predators to escape accountability.

The overarching issue presented by this case is whether the trial court properly admitted evidence of defendant’s prior sexual assaults. Whether such Molineux evidence—i.e., evidence of a defendant’s prior crimes and other bad acts—is admissible is guided by a two-step analysis. First, a court must consider whether the evidence is relevant to a material issue other than defendant’s criminal propensity (e.g., intent). If the evidence is relevant for an appropriate purpose, the court must then determine whether it should be excluded for other reasons, such as its lack of probative value or risk of undue prejudice (see People v Denson, 26 NY3d 179, 185-186 [2015]). Remarkably, the majority holds that the proffered evidence fails at “Step 1,” concluding that evidence of defendant’s past sexual assaults was irrelevant to this case (majority op at 22). The majority does not hold, under “Step 2,” that this evidence was too overwhelming, too dissimilar from the charged crimes, too remote in time, or too prejudicial. Rather, it concludes that additional evidence of defendant’s intent is not relevant to the issues the jury needed to decide, as a matter of law, because no rational person could accept the victims’ testimony recounting the violence committed against them and have any lingering doubts as to defendant’s state of mind.

While the majority’s holding may, at first glance, appear to endorse a utopic vision of sexual assault prosecution in which a victim’s word is paramount, the reality is far bleaker. Critically missing from the majority’s analysis is any awareness that sexual assault cases are not monolithic and that the issue of consent has historically been a complicated one, subject to vigorous debate, study, and ever-evolving legal standards (see People v Regan, 39 NY3d 459, 475-482 [2023, Singas, J., dissenting]). By ignoring the legal and practical realities of proving a lack of consent, the majority has crafted a naïve narrative: that within the most fraught and intimate settings, intent is readily apparent, and issues of consent easily ascertained. This conclusion deprives juries of the context necessary to do their work, forecloses the prosecution from using an essential tool to prove intent, ignores the nuances of how sexual violence is perpetrated and perceived, and demonstrates the majority’s utter lack of understanding of the dynamics of sexual assault. Because New York’s women deserve better, I dissent.

CANNATARO, J. (dissenting):

The adjudication of sex crimes occupies a challenging space in the evolution of American criminal law. Rooted in centuries of deeply patriarchal and misogynistic legal tradition, progress toward a more enlightened and evidence-based approach to the prosecution of rape and related crimes perpetrated predominantly against women has been both challenging and sporadic, with most meaningful progress achieved only over the past 50 years (see People v Regan, 39 NY3d 459, 475-482 [2023] [Singas, J. dissenting]). Today’s majority decision represents an unfortunate step backwards from recent advances in our understanding of how sex crimes are perpetrated and why victims sometimes respond in seemingly counterintuitive ways, endangering decades of progress in this incredibly complex and nuanced area of law. I must therefore dissent.

The privilege of the rich, powerful and well-connected appears to be alive and well in New York.

I expect an avalance of well-deserved critical commentary about this decision. (Mike Frisch)

April 25, 2024 in Current Affairs | Permalink | Comments (0)

Tuesday, April 23, 2024

Echols May Pursue Innocence Claim

In the high-profile criminal case involving one of the "Memphis Three," the Arkansas Supreme Court has held that Damien Echols may pursue DNA exonoration notwithstanding his release from custody and Alford plea

Here, the plain language in sections 16-112-201 and -202 unambiguously permits “a person convicted of a crime” to petition for additional DNA testing to demonstrate the person’s actual innocence pursuant to Act 1780. This language imposes no requirement that a petitioner must be in State custody to seek relief pursuant to Act 1780, and we decline to read such a requirement into the statutes. The circuit court and the State employ reasoning that hinges on the legislative history and purpose underlying Act 1780 and our common-law interpretations of traditional habeas relief; however, resorting to these tools of statutory construction is unnecessary in the present case given the clear language of Act 1780. It is undisputed that Echols has been convicted of a crime, and as a result, he is entitled to seek relief pursuant to Act 1780. This reading of the plain language of sections 16-112-201 and -202 is consistent with the plain language of section 16-112-103, as it is clear that “any person . . . who has alleged actual innocence of the offense or offenses for which the person was convicted” is entitled to petition for a writ of habeas corpus. See Ark. Code Ann. § 16-112-103(a)(1). Moreover, section 16-112-103(a)(2) directs such a person to pursue a writ on this basis in accordance with the procedures set forth in “§ 16-112-201 et seq.[,]” a separate subchapter that codified Act 1780. Therefore, we conclude that the circuit court misinterpreted the plain language of Act 1780 and, as a result, clearly erred when it dismissed Echols’s Act 1780 petition on the grounds that he was not in State custody at the time it was filed. Accordingly, we reverse and remand.

BARBARA W. WEBB, Justice, dissenting.

The majority’s decision obliterates any sense of finality in our criminal justice system. Their interpretation of Act 1780 means anyone who has ever been convicted of a crime––whether or not they be in State custody––can seek DNA or other scientific testing even if such testing would not prove that individual’s innocence. That is the case here. Echols’s first conviction did not rely on DNA evidence. Rather, the jury was presented with evidence that Echols knew facts about the case that were not public knowledge; fibers found on the victims’ clothes were microscopically similar to clothing found in Echols’s home; multiple witnesses testified that Echols confessed to the murders; and multiple witnesses placed him near the crime scene at the time of the murders. DNA testing therefore cannot prove Echols’s innocence. For the reasons set forth below, I would hold that the circuit court correctly found that Echols is not entitled to habeas relief. I dissent.

(Mike Frisch)

April 23, 2024 in Current Affairs | Permalink | Comments (0)

Monday, April 15, 2024

Rudy Gets Rejected

The United States District Court of the District of Columbia has denied post-trial motions of the defendant in Freeman v. Giuliani

Upon consideration of defendant Rudolph W. Giuliani’s Renewed Motion for Judgment As a Matter of Law, or in the alternative, for a New Trial and/or to Alter or Amend the Final Judgment, ECF No. 147, the memoranda submitted in  support and opposition thereto, and the entire record herein, for the reasons set forth in the accompanying Memorandum Opinion, it is hereby:

ORDERED that defendant’s Renewed Motion for Judgment As a Matter of Law, or in the alternative, for a New Trial and/or to Alter or Amend the Final Judgment, ECF No. 147, is


The opinion is linked here

A unanimous jury awarded plaintiffs Ruby Freeman and Wandrea’ ArShaye “Shaye” Moss, on December 15, 2023, a total of $148,169,000.00, in compensatory and punitive damages for defamation and intentional infliction of emotional distress, against defendant Rudolph W. Giuliani. Verdict Form, ECF No. 135. This jury award was followed, in rapid succession, three days later, by entry of the final judgment against Giuliani, see Freeman v. Giuliani, No. 21-cv3354 (BAH), 2023 WL 9783148 (D.D.C. Dec. 18, 2023) (“Final Judgment”), and two days after that, by this Court’s order dissolving the 30-day automatic stay for enforcement of judgment to permit plaintiffs to register their judgment immediately in any district, see Mem. and Order at 12–13, ECF No. 144 (“Enforcement of Judgment Decision”). The very next day, on December 21, 2023, Giuliani filed a Chapter 11 bankruptcy petition in the Southern District of New York, which filing automatically halted all proceedings in this case, including plaintiffs’ right to exercise the authority granted by this Court to seek prompt enforcement of the judgment against Giuliani. See Chapter 11 Pet., In re Rudolph W. Giuliani, No. 23-12055 (SHL), ECF No. 1 (Bankr. S.D.N.Y. Dec. 21, 2023).

Despite the utter failure of Giuliani to comply with his discovery obligations and related orders in this lawsuit or to pay a dime in the attorney’s fees imposed for his discovery abuses—after multiple opportunities were extended for him to do so, over the course of months, leading, ultimately, to entry of default judgment against him on liability on plaintiff’s well-pleaded claims, see Freeman v. Giuliani, No. 21-cv-3354 (BAH), 2023 WL 5600316, at *26 (D.D.C. Aug. 30, 2023) (“Default Judgment Decision”); Default Judgment Order, ECF No. 93—the Bankruptcy Court granted Giuliani’s request to lift the bankruptcy stay to permit him to “file and litigate . . . a post-trial motion (or motions)” and “file a notice of appeal from the Freeman Judgment,” so long as that court is assured, somehow, that the funds expended on continued litigation in this case “shall not be paid by . . . the Debtor or his estate,” Order ¶¶ 2, 6, In re Rudolph W. Giuliani, No. 23-12055 (SHL), ECF No. 124 (Bankr. S.D.N.Y. Feb. 20, 2024) (“Bankruptcy Modifying Stay Order”). With the automatic bankruptcy stay lifted for Giuliani’s benefit to continue litigating in this case, he now renews his motion made at trial for judgment as a matter of law (“JMOL”), pursuant to Federal Rule of Civil Procedure 50(b), or alternatively, for “a new trial and/or to alter or amend the Final Judgment,” pursuant to Federal Rule 59. Def.’s Renewed Mot. JMOL at 1 & n.1 (“Def.’s Mot.”), ECF No. 147.

Giuliani urges this Court to reverse prior findings and rulings and override the jury’s considered verdict based on five cursory arguments made in a brief eight pages: (1) that plaintiffs have failed to state a claim, “incorporat[ing] by reference his arguments in his Motion to Dismiss [] and reargu[ing] them as to the statements specifically identified in the Complaint,” Def.’s Mot. at 4 (citation omitted); (2) that the “unpleaded conduct” on which plaintiffs were permitted to prove damages “suffers from the same defects as the pleaded conduct” and “fails to adequately plead the claims for relief and/or were improperly presented to the jury despite being outside the pleadings,” id.; (3) that the “‘emotional harm’ statements that Plaintiffs based their [intentionalinfliction of emotional distress (‘IIED’)] claims on at trial were . . . made more than one year before suit was filed,” id. at 5, and consequently, “Defendant is entitled to judgment as a matter of law on the IIED claims on limitations grounds,” id.; (4) that any IIED damages were based on a lack of “competent evidence” because there was no expert testimony “as to how much of their emotional harm was caused by Giuliani as opposed to other sources that pre-dated Giuliani’s alleged conduct,” id. at 5–6 (capitalization omitted) (citing Halcomb v. Woods, 610 F. Supp. 2d 77, 86 (D.D.C. 2009)), and (5) that the “testimony and documents” of two plaintiffs’ witnesses, Regina Scott and Dr. Ashlee Humphreys, “should have been stricken” with an instruction to “the jury to disregard it,” id. at 7.

These arguments are foreclosed by the law of the case doctrine based on this Court’s Default Judgment Decision imposing liability on Giuliani for plaintiffs’ claims as a discovery sanction—and Giuliani provides no basis to exempt him from application of that doctrine here—and otherwise fail on the merits.

Off to appeal. (Mike Frisch)

April 15, 2024 in Current Affairs | Permalink | Comments (0)

Thursday, April 11, 2024

Computer Use Not Computer Crime

The Oregon Supreme Court has reversed a computer crime conviction of a defendant who sold stolen items on Ebay

In this case, defendant does not dispute that his conduct in selling purportedly stolen property on eBay constituted theft by receiving. That conduct, however, did not interfere with any interest that eBay or anyone else had in a computer, computer system, or computer network, or in any electronic contents thereof. Nor did defendant use eBay or any other computer technology to gain access to property that he sought to unlawfully obtain—to the extent that anyone actually accessed the purportedly stolen merchandise at issue in this case, it is apparent that they did so by physically entering the retail locations where such items were sold. Under those circumstances, defendant’s conduct cannot have constituted computer crime.


We conclude that a person does not violate ORS 164.377(2)(c) merely by permissibly using an online platform such as eBay in the course of committing a theft, whether theft by receiving or some other form of theft. Although ORS 164.377.(2)(c) broadly prohibits using or accessing a computer to commit theft, the theft at issue must either (1) interfere with another’s protected interests in either the computer or its contents, or (2) depend on computer technology to gain access to whatever it is that the person seeks to unlawfully obtain. As alleged in this case, defendant’s conduct of theft by receiving, while conducted on a computer, did not relate to anything about the computer he used or its contents, and defendant did not depend on a computer to gain access to the purportedly stolen property. The trial court therefore erred in denying defendant’s motion for judgment of acquittal as to the allegations of computer crime.

Dissent of Justice Bushong

The defendant in this case built a criminal enterprise centered on using a computer to access eBay and PayPal to facilitate his illegal fencing operation. The eBay website allowed defendant to market stolen goods to millions of internet users, something he could not have done without the website and a computer to access it. The PayPal platform allowed defendant to receive payments for those stolen goods without risk, something he could not have done without that internet platform. And given the scope of defendant’s fencing operation, using eBay and PayPal instead of selling stolen goods in person may have reduced the risk of attracting the attention of neighbors and law enforcement...

Defendant’s use of a computer to conduct an illegal fencing operation—which is theft by receiving under Oregon law—falls squarely within the conduct that is prohibited by the computer crime statute. The majority opinion’s contrary conclusion based on its narrow interpretation of the statute is, in my view, wrong. Accordingly, I respectfully dissent.

Garrett, J., and Balmer, S.J., join in this dissenting opinion.

(Mike Frisch)

(Mike Frisch)

April 11, 2024 in Current Affairs | Permalink | Comments (0)

Wednesday, April 10, 2024

Counterclaims Dismissed

The United States District Court for the District of Columbia (Judge Nichols) dismissed counterclaims brought by a defamation defendant

Plaintiffs Dominion and Staple Street sued Defendant Herring (the operator of One America News Network) for defamation in connection with the 2020 presidential election. Herring thereafter filed a third-party complaint against AT&T Services, claiming that AT&T Services must cover Herring’s defense and indemnify it for any damages resulting from Dominion’s suit. Herring also asserted counterclaims against Dominion and Staple Street, alleging that they tortiously interfered with its business relationships and contracts. AT&T Services, Dominion, and Staple Street all move to dismiss Herring’s claims against them. For the reasons that follow, the Court grants the motions.

William Kennard was appointed as Chairman of AT&T's Board of Directors in November 2020

Trouble regarding AT&T’s connection with OAN surfaced about a year into Kennard’s tenure on AT&T’s Board. In October 2021, Reuters published an article titled “How AT&T helped build far-right One America News.” Countercl. ¶ 101. “Immediately upon release of the Reuters article, liberal organizations began publicly criticizing AT&T for its relationship with OAN.” Countercl. ¶ 104. The NAACP, for example, “accused AT&T of causing ‘irreparable damage to our democracy’” and “demanded that AT&T de-platform OAN from DIRECTV.” Countercl. ¶¶ 105, 114. Ultimately, DIRECTV “decided not to renew the Affiliation Agreement” with Herring, dropping OAN. Countercl. ¶ 120.

Indemnification was sought under a contractual agreement

Herring’s claim against AT&T Services centers on the Affiliation Agreement. Herring alleges that AT&T Services is contractually obligated to indemnify Herring because AT&T Services “proximately caused” Dominion’s defamation suit against Herring when it breached the contract’s non-disparagement provision. Countercl. ¶¶ 185–191. The breaches, Herring says, occurred when Kennard and on-air personalities at CNN and HBO (then-owned by AT&T) criticized Herring.

Not established

For starters, many of the disparaging statements to which Herring alludes were made after Dominion sued Herring, undercutting Herring’s theory of causation. Dominion sued Herring in August 2021. See ECF No. 1. But all of Kennard’s disparaging statements came several months later, in October 2021, see Countercl. ¶¶ 68-71, and the same is true of many of the statements by HBO’s and CNN’s on-air personalities, see Countercl. ¶¶ 62-65. The counterclaim identifies only four instances of allegedly disparaging HBO- or CNN-affiliated comments that predate Dominion’s suit against Herring. See Countercl. ¶¶ 57-59, 61. And some of those comments came so far in advance that it is hard to believe they precipitated Dominion’s suit—for example, John Oliver’s April 2020 statements on HBO about OAN’s “dirt stupid reporting,” Countercl. ¶ 61.

More fundamentally, Herring has not pleaded a single fact plausibly linking the disparaging statements and Dominion’s lawsuit.

Tort claims

Herring’s tortious interference clams against Dominion and Staple Street do not survive either. Even assuming that Herring was the victim of tortious interference, Herring must establish that Dominion or Staple Street (the two relevant counterclaim defendants) is legally responsible for it. Herring’s theory is that Kennard tortiously interfered with Herring’s relationship with DIRECTV and AT&T while “at times, acting on behalf of” Dominion and Staple Street—i.e., acting as their agent—making Dominion and Staple Street liable for his actions. Herring Br. at 5. But Herring’s well-pleaded facts do not plausibly support this Kennard-as-agent theory.

(Mike Frisch)

April 10, 2024 in Current Affairs | Permalink | Comments (0)

Monday, March 18, 2024

Did Facebook Deletions Obstruct Justice?

Oral argument was heard last week in the appeal of the obstruction of justice conviction of a former U.S. Capitol Police officer before the United States Court of Appeals for the District of Columbia Circuit.

Link here.

From the press release of the United States Attorney's Office for the District of Columbia 

A former U.S. Capitol Police officer was found guilty by a jury today of a federal charge of obstruction of justice stemming from his communications with a rioter and his actions in the aftermath of the breach of the U.S. Capitol on Jan. 6, 2021, which disrupted a joint session of the U.S. Congress that was in the process of ascertaining and counting the electoral votes related to the presidential election.

Michael A. Riley, 51, was found guilty of one count of obstruction. The verdict followed a trial in the U.S. District Court for the District of Columbia. The jury was unable to reach a verdict on a second count, ending in a mistrial on that charge. No sentencing date was set.

According to the government’s evidence at trial, Riley, who has more than 25 years of law enforcement experience, was at work with a K-9 unit on Jan. 6, 2021. Although he was not on duty inside the Capitol Building itself during the attack, he was aware of what was taking place. That day, he responded to reports of an explosive device near the Capitol complex.

The next day, Jan. 7, 2021, Riley learned that a Facebook friend had posted about being at and inside the Capitol on Jan. 6.  Rather than forward the information to the Capitol Police or FBI, Riley sent the rioter a private Facebook message with advice on how to avoid being caught. He wrote, “im a capitol police officer who agrees with your political stance.  Take down the part about being in the building they are currently investigating and everyone who was in the building is going to charged. Just looking out!” 

Riley then continued to exchange hundreds of friendly private Facebook messages with the rioter, but when he learned that the rioter had told the FBI about being in touch with a Capitol Police officer, Riley deleted all of those messages from his account. Riley then came up with a cover story and sent a new message to the rioter, pretending that he had only later learned that the rioter had smoked weed inside the Capitol and pretending that he was scolding the rioter for his conduct.

The jury was unable to reach a verdict on the charge related to Riley’s communication with the rioter on Jan. 7. It found him guilty of obstruction related to the conduct involving the cover-up.

The charge of obstruction of justice carries a statutory maximum of 20 years. A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.

           (Mike Frisch)

March 18, 2024 in Current Affairs | Permalink | Comments (0)

Friday, March 8, 2024

To Be Free In Alaska

A blow for airspace freedom struck by the Alaska Supreme Court

Do the police have to get a warrant before taking pictures of your yard with a zoom lens while flying in an airplane? The State argues that because small airplane travel is so common in Alaska, and because any passenger might peer into your yard and snap a picture of you, law enforcement officials may do the same. We disagree. The Alaska Constitution protects the right to be free of unreasonable searches. The fact that a random person might catch a glimpse of your yard while flying from one place to another does not make it reasonable for law enforcement officials to take to the skies and train high-powered optics on the private space right outside your home without a warrant. Unregulated aerial surveillance of the home with high-powered optics is the kind of police practice that is “inconsistent with the aims of a free and open society.” The Alaska Constitution does not allow it.

Police had a tip that the defendant was growing marijuana in a translucent greenhouse on his "property in a sparsely populated area just north of Fairbanks."

To confirm the informant’s report, two troopers flew past McKelvey’s property in an airplane. The troopers flew in a straight line past McKelvey’s residence — at their closest point the troopers were roughly a quarter mile to a half mile south of the house at an altitude of roughly 600 feet. The troopers photographed the property using a camera with a high-powered zoom lens, which allowed them to magnify the image roughly nine times compared to the naked eye. The photographs revealed five-gallon buckets containing unidentifiable plants inside the greenhouse.

Based on the tip and observations from the flight, the troopers obtained a search warrant for McKelvey’s house and property. Upon searching the house officers found marijuana plants, methamphetamine, scales, plastic bags for packaging, a loaded AK-47 rifle, and a large amount of cash. McKelvey was charged with criminal offenses based upon the evidence discovered during the search.

The court affirmed the Court of Appeals.

Expectation of privacy

Peering into people’s yards with a high-powered lens when flying overhead has a similar potential to reveal intimate details that a person may wish, and expect, to keep private. Aerial observation with the aid of a zoom lens might capture, for example, an unflattering photo of a person in a swimsuit, images of a person practicing a silly dance with their children, or expressions of religious devotion that one might not wish others to see. The mere knowledge that the government could make these kinds of detailed observations without a warrant may discourage Alaskans from using their curtilage to live their private lives.

Alaska from the air

The State argues that because flights on small aircraft are so common everywhere in Alaska, Alaskans cannot reasonably expect privacy in the curtilage of their homes. Pointing to the superior court’s findings, the State asserts passengers in these aircraft fly relatively close to the ground, at low speeds, and regularly use binoculars and high-powered cameras to view the ground below. We accept the State’s assertion that there is more air travel per capita in Alaska than the average state and that the small aircraft so common here fly at slower speeds and lower altitudes than the big aircraft that predominate Outside. But there is no support for the State’s suggestion that pilots and passengers regularly examine the curtilage of people’s homes with highpowered optics. People train their cameras and binoculars on Alaska’s majestic scenery and wildlife. There is no reason to think they are focused on the bleached garden boxes, tangled fishing nets, and parted-out snowmachines lying next to people’s homes. The fact that it is common for small aircraft to fly overhead does not make it unreasonable for Alaskans to think that what they do in the outdoor space of their homes that they have tried to keep private will remain private.


we hold that the Alaska Constitution requires law enforcement officials to obtain a warrant before using aircraft and vision enhancing technology (such as a camera with zoom lens or binoculars) to observe the curtilage of a person’s home that is protected from ground-level observation. Because the troopers did not get a warrant before taking aerial photos of McKelvey’s curtilage, it was error to deny McKelvey’s motion to suppress evidence obtained as a result of those photos.

(Mike Frisch)

March 8, 2024 in Current Affairs | Permalink | Comments (0)

Wednesday, March 6, 2024

Do No Harm And Naming Names

Lack of Article III standing doomed an attack on a diversity program of Phizer, per a decision of the United States Court of Appeals for the Second Circuit

On September 15, 2022, Do No Harm filed suit against Pfizer, alleging violations of 42 U.S.C. § 1981, Title VI of the Civil Rights Act, Section 1557 of the Affordable Care Act (the “ACA”), and the New York State and New York City Human Rights Laws. Do No Harm asserts that Pfizer’s Fellowship unlawfully “excludes white and Asian-American” applicants, as evidenced by the Fellowship’s FAQs page, advertising materials, and requirement that applicants “[m]eet the program’s goals of increasing the pipeline for Black/African American, Latino/Hispanic and Native Americans.” J. App’x 8, 11–14 (alteration in original). Do No Harm alleged it had “at least two members” who were “ready and able to apply for the 2023 class” if Pfizer eliminated its allegedly discriminatory criteria. Id. at 9.

Concurrent with its complaint, Do No Harm filed a motion for a temporary restraining order and preliminary injunction barring Pfizer from selecting the 2023 Fellowship class until further order of the district court. In support of its motion, Do No Harm submitted anonymous declarations from two of its members identified by the pseudonyms “Member A” and “Member B.”3 In their respective declarations, Members A and B affirmed that they “[met] all the eligibility requirements set by Pfizer,” including that they were undergraduate juniors maintained GPAs of 3.0 or higher, and were “involved in campus life and [held] leadership positions” in various campus activities. Id. at 36–41. Members A and B, who self-identified as white and Asian-American, respectively, averred that Pfizer “categorically exclud[ed]” white and Asian-Americans like them from the Fellowship. Id. at 37, 40. Both Members swore they were “able and ready to apply to the 2023 class of the Fellowship” if Pfizer eliminated its allegedly discriminatory criteria. Id.

Standing not established because plaintiff did not name names

we hold that an association must identify by name at least one injured member for purposes of establishing Article III standing under a summary judgment standard. Our holding in no way precludes an organization from seeking to protect its members’ identities―either from the public or the opposing party―pursuant to existing legal procedures and standards. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 190 (2d Cir. 2008); Pilcher, 950 F.3d at 42. An organization’s ability to shield from disclosure the identities of members upon whom it relies to establish its standing is a separate matter. At issue here is whether an organization can proceed without even disclosing to the court the names of the members whose Article III injuries support the organization’s standing. We hold that, because Do No Harm did not disclose the names of Members A or B to the district court, it failed to demonstrate that it has at least one member with Article III standing.

Circuit Judge Wesley concurred

But I part ways with the majority as to why Do No Harm lacks standing. In my view, Members A and B did not show an imminent injury from the Fellowship’s selection process. As our precedents require, neither member provided sufficient evidence to show they were “ready” to apply to the Fellowship. That is the fundamental way that we analyze standing; it suffices to end this case. The majority passes on that analysis, and instead holds that to check the standing box, an organizational plaintiff relying on injury to some of its members must also provide those members’ actual names. We have no basis to impose this new constitutional rule.

I concur in the judgment affirming dismissal, but I cannot concur in full because the majority pronounces an unfounded “real name” test for associational standing. That is an unfortunate ruling for organizations everywhere.

(Mike Frisch)

March 6, 2024 in Current Affairs | Permalink | Comments (0)

Monday, February 26, 2024

Expulsion Upheld

The United States Court of Appeals for the Fourth Circuit affirmed a medical school's expulsion of a student

Kieran Bhattacharya (“Appellant”) is a former medical student at the University of Virgnia [sic] School of Medicine (“UVA”). He claims that numerous UVA officials (collectively, “Appellees”) reprimanded, suspended, and then expelled him in violation of the First Amendment because of the views he expressed during a faculty panel -- in other words, because of his protected speech. Appellees assert they took these actions against Appellant not because of his speech, but as a result of Appellant’s confrontational, threatening, behavior.

The district court sided with Appellees, holding at summary judgment that Appellant could point to no evidence that Appellees punished Appellant due to his speech. We agree. Appellant has failed to present evidence sufficient to create a triable issue as to whether his speech caused the actions UVA took against him. A medical school’s administrators have the authority to set the minimum standards of professionalism for conferral of a medical doctorate. Even more, they have the authority and obligation to ensure the safety of the school’s faculty and staff. Appellees appropriately exercised that authority with due regard for the Constitution.

At issue

On October 25, 2018, the student chapter of the American Medical Women’s Association hosted a faculty panel called “Microaggressions: Why Are ‘They’ So Sensitive?” Appellant attended that panel, and he claims to have been punished by UVA for certain statements he made, and questions he asked, on the topic of microaggressions.

The encounter was followed by further incidents that led to a suspension

In December 2018, UVA became aware that Appellant was posting about his suspension online. This included the photographs he took of the [Academic Standards and Achievement Committee]  members, which Appellant posted to the message board 4chan7 with the caption, “These are the f[***]gots ruining my life.” J.A. 1181. The message prompted posts from other users encouraging acts of violence against the ASAC members.

On December 30, 2018, UVA police met with UVA’s Threat Assessment Team to address Appellant’s behavior. They discussed the protective order Appellant’s ex-girlfriend obtained against Appellant; his multiple involuntary commitments; his threats against faculty members at UVA; and his “pattern of retaliatory behavior.” J.A. 1320. The police decided to issue a no trespass order (“NTO”) against Appellant which was delivered to Appellant orally on a telephone call. The police followed up and mailed a written version of the NTO to Appellant’s parents’ house on January 2, 2019. The written NTO prohibited Appellant from entering UVA grounds for four years except as a patient of the medical center and explained the process for appealing the order.

As to pre-suspension actions of the school

we agree with the district court that neither the ASAC Letter, nor the Concern Card that prompted it, were adverse actions caused by Appellant’s speech.

The court majority concluded that conduct, rather than speech, led to the expulsion

Dissent of Judge Quattlebaum

Why radio silence on Bhattacharya’s obvious signs of mental illness? Professionalism in medical schools and in the medical profession is, of course, important. But is that really the issue here? It seems like UVA’s concerns were, or at least should have been, about Bhattacharya’s mental health and his potential danger to himself or others. But rather than identifying the real issues, UVA relied on professionalism. I realize that addressing the real issues head-on might have been complicated. Doing so might have implicated state or federal disability and discrimination laws. But if the real problems were mental health—and all signals point that way—shouldn’t the school have addressed Bhattacharya’s situation accordingly? Instead, perhaps coincidentally or perhaps conveniently, it couched Bhattacharya’s suspension as a matter of professionalism, which might require us to defer to UVA’s academic decisions.

(Mike Frisch)

February 26, 2024 in Current Affairs | Permalink | Comments (0)

No Reason To Jump Ahead

The United States District Court for the District of Columbia (Chief Judge Boasberg) denied a motion to dismiss an action brought against Proud Boy lawyers

In Lux Research and its owner, Lindsay Olson, brought this case against the lawyers and law firms that represented a number of Proud Boys in a joint criminal trial stemming from the insurrection at the U.S. Capitol on January 6, 2021. Plaintiffs claimed that one of the defense lawyers, John Daniel Hull, allegedly acting on behalf of the others, hired In Lux to conduct a jury poll for a $30,000 fee but failed to pay up. Most Defendants — including Nayib Hassan, Sabino Jauregui, and their law firms — responded to the suit with motions to dismiss. The Court granted those motions in a Memorandum Opinion and separate Order issued five months ago.

Two months later, however, Plaintiffs successfully moved this Court to partially vacate its dismissal Order and allow them to amend their Complaint to pull the Hassan and Jauregui Defendants back into the case. The operative pleading now alleges that this set of Defendants used, without copyright authorization, an April 2022 report — prepared by In Lux for separate January 6 defendants in preparation for a separate criminal trial — in support of their effort to transfer their clients’ case out of the District of Columbia.

As before, the Hassan and Jauregui Defendants now move to dismiss, contending that their reliance on the April 2022 report was both fair use and otherwise protected by 17 U.S.C. § 109(a). Because the former issue is ordinarily not resolved until summary judgment — and Defendants’shoddy briefing has given the Court no reason to jump ahead — and the latter contention has little merit, the Court will deny the Motion.

Fair use

Here, Defendants have provided no reason for thinking that this is the exceptional case where fair use should be decided before discovery. To the extent that they even acknowledge this potential roadblock, they puzzlingly cite a single case that states that it is proper to decide fair use “at the summary judgment stage if the historical facts are undisputed and the only question is the proper legal conclusion to be drawn from those facts.” MTD at 8 (quoting L.A. Times v. Free Republic, 2000 WL 565200, at *4 (C.D. Cal. Apr. 4, 2000)) (emphasis added). Needless to say, simply quoting an unhelpful standard does not show why the Court should undertake this fact-intensive inquiry in the absence of a record.

Even if this standard extended to motions to dismiss, moreover, Defendants have not shown why the fair-use defense would succeed on the current record. For one, some of the key facts here are, contra Defendants, in fact disputed.

First-Sale Doctrine

Defendants’ submission once again leaves much to be desired. They re-up their strategy of bombarding the Court with citations that may or may not bear on the issue at hand on their way to concluding that Plaintiffs’ initial sale of the April 2022 report “exhausted” their right “to sell the report again.” See MTD at 13–14. Yet they are silent on why this initial sale would also exhaust Plaintiffs’ exclusive right to reproduce the same report. See Geophysical Serv., Inc. v. TGS-NOPEC Geophysical Co., 850 F.3d 785, 794 (5th Cir. 2017) (despite first-sale doctrine, which limits copyright owner’s general right to distribute, “[t]he owner of a lawfully made copy . . . is still forbidden from copying it . . . or publicly displaying it”). They are silent, too, on how the doctrine could protect their reproduction of the report, given that they neither commissioned nor paid for the initial copy of the report (or any copy, for that matter) and are therefore not its owners. See 17 U.S.C. § 109(d) (first-sale doctrine does not shield a “person who has acquired possession of the copy . . . without acquiring ownership of it”); Quality King Distribs., Inc. v. L’anza Rsch. Int’l, Inc., 523 U.S. 135, 146–47 (1998) (noting that first-sale doctrine does not provide defense to action “against any nonowner such as a bailee, a licensee, a consignee, or one whose possession of the copy was unlawful”).

In short, Defendants have not come close to carrying their burden of proving that their use of Plaintiffs’ April 2022 report was protected by the first-sale doctrine. The Court will accordingly reject this challenge, as it did the first.

(Mike Frisch)

February 26, 2024 in Current Affairs | Permalink | Comments (0)