Federal Judiciary

Fluctuating Work Week

Posted on June 16, 2020
In Thomas v. Bed Bath & Beyond, Inc., the plaintiffs, employees of  Bed Bath & Beyond Inc. ("BBB"), claimed that their employer had underpaid overtime pay that was owed them.  BBB claimed that because the employees work week fluctuated from week to week, it was entitled to calculate such overtime pay under the fluctuating work week method, which is permitted under Supreme Court precedent and Department of Labor Rules,  Under this method, if an employee is receiving a guaranteed weekly salary, which he or she will be paid even if he or she works fewer than 40 hours a week, overtime is calculated as follows: (1) the weekly guaranteed salary is divided by the actual number of hours worked that week, setting the regular hourly rate for that week, (2) the regular hourly rate is divided in half and (3) this amount is added to all overtime hours...

Works for hire

Posted on August 01, 2019
Stanley Kaufman contributed numerous film reviews to The New Republic ("TNR").  Kaufman was not an employee of TNR and there was evidence going both ways as to whether he or TNR owned the copyrights on his pieces.  There was no written agreement until in 2004, the literary editor sent Kaufman a letter saying it had always been their understanding that the works were works for hire...

Jurisdiction Divested under CAFA when class action allegations are removed

Posted on July 11, 2019
An attorney sued a group of title insurance companies for violating a Connecticut statute, which requires that  real estate title agents be attorneys licensed to practice in Connecticut.  After 12 years of litigation, the plaintiff-attorney amended his complaint to remove all class-action allegations...

Trump Can't Block on Twitter

Posted on July 09, 2019
It's pretty well known that Trump does not like to be criticized.  And it's also well known that he really loves Twitter.  So to get the best of both worlds, he decided to block certain people from his Twitter feed -- people who criticized him, of course -- allowing him to tweet to his heart's content without these critics being able to respond...

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Landlord can be liable under the Fair Housing Act for harassment on a tenant by another tenant.

Posted on March 06, 2019
A tenant was being racially harassed by another tenant.  The harassed tenant complained to his landlord who did nothing.  The landlord told its managing company not to get involved and refused to address the tenant's letters.  The harassing tenant was allowed to stay in the building until his lease expired...

Inculpatory testimony by police officer as to the statement of a third party is not admissible

Posted on February 11, 2019
The Second Circuit, in Orlando v. Nassau County District Attorney?s Office, a habeas action, the Second Circuit held that the state trial court had erred in allowing a police officer to testify that the defendant in a related case had told him that Orlando had hired him to kill Bobby Calabrese...

Rooker-Feldman Doctrine.

Posted on December 12, 2018
In Cho v. City of New York, the plaintiffs had been charged with violating New York City's Nuisance Abatement Law.  They entered into settlement agreements with the City rather than defend themselves in court.  Each of the agreements were "so-ordered" by the state court...

Whole grain

Posted on December 11, 2018
The Kellogg Company advertised on the labels that its Cheez-It crackers were made with whole grain.  In fact, the primary ingredient in the crackers was enriched white flour.  The plaintiffs filed a class action against Kellogg, alleging that the labels were false and misleading...

Qualified Immunity for Tasing Student

Posted on December 11, 2018
The parents of a 12-year old profoundly-deaf boy got into a confrontation over a takeout order with a teacher at his school.  He became angry, ran from the dorm and entered onto a nearby fenced-off construction site.  The teacher followed him and the boy hit him with a stick and threw rocks at him...

Trying to Evade a Class Action

Posted on December 05, 2018
In Geismann, M.D., P.C. v. ZocDoc, Inc., Geismann , a Missouri professional corporation, commenced a class action in Missouri state court against the defendant, claiming that it had violated the Telephone Consumer Protection Act by sending unsolicited advertisements by fax...

CPLR 3102 proceeding not a "civil action" for purposes of removal

Posted on December 04, 2018
In Teamsters Local 404 Health Services & Insurance Plan v. King Pharmaceuticals, the Teamsters Local 404 Health Services & Insurance Plan ("Teamsters Plan") had commenced a proceeding, seeking pre-action discovery under CPLR 3102(c).  It sought to obtain settlement agreement, licensing agreements and any other related agreements between King Pharmaceuticals , Meridian Technologies, Inc...

Doctrine of Functus Officio

Posted on December 03, 2018
Under the doctrine of functus officio, once a panel of arbitrators has exercised its authority to adjudicate the issues submitted to it, the authority of the arbitrators over those question is ended.  In General Re Life Corp. v. Lincoln Nat'l Life Ins...

Serving as a juror. The Court assumed,

Posted on April 19, 2018
Serving as a juror. The Court assumed, without deciding, that the inability to serve as a juror is a collateral conseqence of a conviction is sufficient to support a writ of coram nobis in Porcelli v. United States. This did not help Porcelli because the Court denied the petition on the merits...

Correction. No, this is not a

Posted on April 19, 2018
Correction. No, this is not a correction of a misstatement I have made on this blog -- or anywhere else for that matter. I am correcting a misstatement of fact made by Jeffrey Toobin in his fascinating book on the Supreme Court, The Nine. On page 77, Toobin states that Judges Richard Arnold and Morris Arnold "were the only brothers in American history to serve on the same federal court of appeals...

Ban on Alcohol reversed; rest of sentence OKed

Posted on March 28, 2018
Betts was a bad boy.  He had been convicted of bank fraud, and sentenced to two years imprisonment and five years' supervised release.  The Court had also required that he pay restitution and to notify his probation officer within 72 hours if he was arrested...

Preempted by the Organic Foods Production Act

Posted on March 23, 2018
Three parents brought a class action against Abbott Laboratories, Inc., claiming that it had included in its baby formula, which was purported to be "organic," contained ingredients not allowed by the Organic Foods Production Act (the "Act").  Their claims were brought under New York and California statutory and common law...

Checking the boxes

Posted on August 09, 2017
In McLeod v. The Jewish Center of the Blind, the pro se plaintiff had brought a discrimination action, but had failed to check the boxes on the form discrimination complaint indicating that, in addition to seeking relief under Title VII, she was seeking relief under the New York State Human Rights Law and the New York City Human Rights Law...

Value of a rescission claim

Posted on May 12, 2017
The Second Circuit, in a claim brought under the Magnuson-Moss Warranty -- Federal Trade Commission Improvement Act, held that the value of a contract, without offset, is the amount in controversy for purposes of a rescission claim that was brought under the Act, agreeing with the Third and Sixth Circuits...

Adequate Notice under Fair Debt Collection Practices Act

Posted on April 05, 2017
In Carlin v. Davidson Fink, the defendant, a law firm engaged in, among other things, the business of debt collection and foreclosure actions, commenced a foreclosure action against the plaintiff.  The defendant attached to the complaint a "Notice Required by the Fair Debt Collection Practices Act," which stated that the debt set out in the complaint will deemed to be valid unless the plaintiff disputed it within 30 days of receipt of the Notice...

No Common Law Right of Public Performance for Creators of Pre-1972 Sound Recordings

Posted on February 22, 2017
A decision in Flo & Eddie, Inc. v. Sirius XM Radio, Inc has come down.The plaintiff, which claim to own the rights to the recordings of "The Turtles," a well-known band with a string of hits in the 1960s, sued Sirius XM Radio, Inc., a radio and internet-radio broadcaster, claiming that Sirius infringed on the plaintiff's copyright in The Turtle's recordings...

FMLA -- Obligation on Employer to Ask for Information to Determine whether Employee is Entitled to Relief

Posted on February 14, 2017
In Coutard v. Municipal Credit Union, the District Court dismissed a claim brought by an employee under the Family Medical Leave Act in which the employee claimed that the employer denied him leave to care for his grandfather.  The District Court held that the failure of the employee that he was in a loco parentis relationship with his grandfather doomed his claim...

Special Education Case -- "Clear Consensus"

Posted on January 12, 2017
The Second Circuit, in A.M. v. New York City Department of Education, held that where the school district developed an Individualized Education Program ("IEP") for an autistic child, that was against the clear consensus of the substance of the evaluative materials present at the IEP meeting of the Committee on Special Education ("CSE"), such IEP failed to provide the child  with a free, appropriate public education under the Individuals with Disabilities Act...

Certified Question on Punitive Damages in Cases under New York City Human Rights Law

Posted on October 31, 2016
What is the standard for assessing punitive damages in a pregnancy discrimination under the New York City Human Rights Law?.  The law itself doesn't set a standard, so the district judge in Chauca v. Abraham, borrowed the standard  from the standard under the federal Title VII and based on that standard declined to give a punitive damages instruction to the jury...

Clear and Unmistakable.

Posted on October 31, 2016
The Second Circuit has reiterated its holding that if a contract agreement provides for arbitration for discrimination claims does not include statutory claims unless the contract's language is clear and unmistakable that such statutory claims are included...

Post - Release Supervision

Posted on September 16, 2016
The New York State Legislature amended the sentencing scheme for violent felons to require that every sentence for a violent felony must be followed by a post-release supervision ("PRS") term.  Some judges.however did not pronounce PRS terms during sentencing proceedings  As a result, certain inmates entered the custody of the Department of Correctional Services ("DOCS") with sentence and commitment orders that did not include PRS terms required by the statute...

Standing. The Second Circuit has

Posted on March 21, 2011
Standing. The Second Circuit has reversed the District Court's grant of summary judgment to the Government in a case involving the constitutionality of a provision of the Foreign Intelligence Surveillane Act of 1978, which provides the Government unregulated authority to monitor international communications...

New Judge. The Senate has confirmed

Posted on December 20, 2010
New Judge. The Senate has confirmed the nomination of Raymond Joseph Lohier, Jr. by a vote of 92-0.

Extraterritorial reach. The Second

Posted on December 08, 2010
Extraterritorial reach. The Second Circuit has held that the RICO statute does not have extraterritorial reach. The decision in Norex Petroleum Limited v. Access Industries, Inc. can be found here.

She's arrived! Who has? Why the

Posted on December 07, 2010
She's arrived! Who has? Why the daughter of my latest law student blogger adoptee, Izzie, that's who. She's named Z, at least on the blog, and Izzie has been stingy with pictures, but I'm sure that will change.I haven't mentioned Izzie because I thought I'd wait until I updated my blogroll...

No private right of action. The

Posted on November 30, 2010
No private right of action. The Second Circuit had held that a federal statute that bars discrimination against health care workers who refuse to participate in abortion procedures does not create a private cause of action. In Cenzon-DeCarlo v. Mount Sinai Hospital, an operating room nurse claimed that she was forced to participate in a late-term abortion and sued the hospital...

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