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March 2016 Archives

March 4, 2016

Three Reasons Your Organization Needs Job Descriptions

By Kristine A. Sova

Much like employee handbooks, federal and state laws do not require employers to have job descriptions for their employees. That being said, there are a number of practical and legal benefits to having them, provided they are well-drafted. Here, we'll discuss three good reasons for your organization to have written job descriptions.

Performance Management

Written job descriptions communicate to employees what their work responsibilities and duties are, and as such, provide the basis for employee performance reviews, goal setting, salary increases, and performance bonuses. Conversely, if an employee is not meeting the requirements of the job, the written description can also provide the standard for measuring performance and provides support for any decision to terminate or discipline an employee for performance issues.

Accommodations Issues

A written job description becomes important when dealing with disability and religious accommodation issues in the workplace because it helps to establish the essential functions of a job.

For example, under the Americans with Disabilities Act of 1990 (ADA), a covered employer must provide qualified individuals with a disability with a reasonable accommodation, unless doing so poses an undue hardship on the employer. To be a qualified individual under the ADA, an employee or applicant must (1) possess the skills, experience, education and other job-related requirements necessary for the position, and (2) be able to perform the essential functions of the job with or without a reasonable accommodation. The essential functions of the job are the "fundamental job duties" of the employment position. They do not include the marginal functions of the position.

Evidence of whether a particular function is essential includes a written job description prepared before advertising or interviewing for a job. Further, with a pre-existing written job description, an employer has a starting reference point for what duties are considered essential when engaging in what's known as the "interactive process" in order to determine a potential job accommodation for an applicant or an employee.

Exemption Issues

Written job descriptions can also be evidence in litigation involving claims that employees were misclassified as exempt from the overtime pay requirements and not paid overtime.

Generally speaking, unless an employee is considered "exempt," the law requires that any hours worked in excess of 40 per workweek be compensated at a rate of not less than time and one-half of the employee's regular rate of pay. This holds true for employees who receive a salary, provided that they do not fall within one of the available exemptions. The exemptions are defined by federal and state law, and they generally apply to white-collar workers whose primary functions are executive, administrative, professional, or in other narrowly-defined categories.

For example, under the Fair Labor Standards Act (FLSA) and New York Labor Law, currently an employee will be exempt from overtime under an "administrative exemption" if:

the employee is compensated with a salary that is greater than or equal to $675.00 per week;

the primary duties of the employee are office or other non-manual work that relates directly to management or business operations, either to the employer or the employer's customers/clients;

the employee's primary duties include the exercise of discretion and independent judgment to matters that are significant to the operation of the business/organization; and

the employee regularly and directly assists an employer or an employee employed in a bona fide executive or administrative capacity; or performs, under only general supervision, work along specialized or technical lines requiring special training, experience or knowledge.

An accurate list of job duties can help establish that the employee's job duties qualify that employee under one of the exemptions provided by the FLSA and/or state law - specifically, if it meets the "primary duties" test under the FLSA and/or state law.

Week In Review

By Eric Lanter

Deflategate: What's Happened So Far, and What's Next

The Second Circuit Court of Appeals is preparing to hear arguments Thursday, March 10th, from the National Football League (NFL) and the Patriots' Tom Brady. Both sides will be arguing about Judge Berman's decision, with the center of the controversy being whether Roger Goodell, the Commissioner of the NFL, exceeded his authority granted under the collective bargaining agreement in determining that Tom Brady "was at least generally aware of the inappropriate activities" surrounding Patriots employees deflating footballs below the legal limit.


Bitter Contract Dispute Extends to Who Owns Yosemite Names

Yosemite National Park, one of the premier American national parks, is now the center of a trademark dispute. A New York company, Delaware North, has trademarked the name "Yosemite National Park", as well as many brands within the park, including "The Ahwahnee Hotel" and "Wawona Hotel," familiar to many of the park's visitors. Delaware North is now seeking to have the next concessionaire for the park to pay $44,000,000 for the rights to use the names. In the meantime, the park's many signs have been covered with tape and the names of the familiar locations have all been changed, evoking outrage and anger from parkgoers.


Prosecutors Lay Out Case Against Suspect in Destruction of Mali Shrines

The International Criminal Court, located in The Hague, Netherlands, is grappling with a novel case; one addressing cultural destruction as a heinous crime. The accused, Ahmad al-Faqi al-Mahdi, was part of an organization linked with al Qaeda, in the north of Mali. Prosecutors allege that Mr. Mahdi destroyed 10 historic Muslim shrines in Timbuktu, which were protected as World Heritage Sites. A panel of three judges will decide whether the prosecution has introduced evidence sufficient for a trial of Mr. Mahdi.


Aroldis Chapman's Stance Changed from Defiance to Acceptance

Aroldis Chapman, one of the hardest throwing pitchers in Major League Baseball (MLB) and a Yankee, has been handed a 30-game suspension by MLB Commissioner Rob Manfred. This suspension comes as a result of an incident in October, when Mr. Chapman allegedly put his hands around his girlfriend's neck during an argument and fired a gun eight times. While Mr. Chapman is permitted to work out at the Yankees' complex during his suspension, he will not be on the mound donning the Yankees' uniform until May 9th.


Ivy League Moves to Eliminate Tackling at Football Practices

Responding to the growing concerns about brain trauma and other injuries in football, Ivy League football coaches have agreed to eliminate full-contact hitting from their practice sessions during the regular season. The eight coaches agreed to the measure last week, and pending approval by the Ivy League's athletic directors, policy committee, and university presidents, the measure will take effect.


Santiago Calatrava's Transit Hub is a Soaring Symbol of a Boondoggle

After a dozen years of delays and construction, the World Trade Center Transportation Hub, which was designed by Santiago Calatrava, is due to open to commuters. With a $4 billion price tag of public money, many feel that it is nothing more than an expensive labyrinthine transportation hub. Others admire the pristine, light-filled main hall. Michael Kimmelman of the New York Times concludes that it should have aspired to be more akin to Grand Central, with both reasonable cost and timeless beauty.


Private Art Becomes Public

There has been a notable rise in private art museums opening up throughout the country. Prior to the Pension Protection Act of 2006, collectors who donated artworks to museums were allowed to keep those works in their homes while reaping the benefit of tax breaks. With that practice being prohibited, many collectors have opted not to risk their artworks being donated to museums only for those works to be in storage, but instead open tax-exempt private museums. However, that wave of private museums has drawn scrutiny from the U.S. Senate Finance Committee, which has launched an investigation into these private museums.


Center for Art Law invites you to attend "You've Been Served: 'Finding Vivian Maier'"

Center for Art Law invites you to attend:

You've Been Served:
"Finding Vivian Maier" (2013)

Where: Vanderbilt Hall, New York University Law School, located at 40 Washington Square in New York, NYC.
When: Tuesday, March 8, 2016 -- a.k.a. "The International Women's Day"
What: Dinner starts @ 6:30PM | Movie starts @ 7:00 PM Movie

This event is made possible with the generous assistance from the New York University Law School Art Law Association!

About the film: Before street art there was street photography. Vivian Maier (1926 - 2009) is recognized as one of the leading 20th century street photographers in the United States, but the fame and recognition came to her posthumously. Join us for a special screening of the Oscar nominated film about how Maier's works were discovered and investigated by an amateur historian John Maloof. Maloof's crusade to put Maier into the history books triggered a dispute over the legal rights to her works, still pending in Cook County, IL.

Special Guests: After the film, attorneys practicing in estate and trust administration, estate planning, probate litigation and copyright will discuss the Maier case lessons. Amy F. Altman, member of the Trusts & Estates Practice Group at Meltzer Lippe Goldstein & Breitstone, LLP, will lead the discussion about intestate and kinship issues involving Maier's heirs. David A. Bondy, Legal and Business Counsel at The Law Offices of David A. Bondy, P.C., will lead the discussion about copyright issues associated with Maier's works.

Vanderbilt Hall/NYU Law School
40 Washington Square South
Room 206
New York, NY 10012
Attend Event

March 7, 2016

Urgent Warning: Beware Of NBC/Universal's "SONGLAND" Submission Form

By Wallace Collins

The NBC/Universal submission agreement for the "Songland" TV show states that NBC will own all rights to use and exploit all of your songs involved in the show including the songs you submit in the initial application. You would also purportedly be giving up your song even if you do not get selected to be on the Songland TV show (so whatever songs you use to audition would arguably become theirs to use and exploit even if they do not choose you). It also states that you waive your rights to claim any royalties from the songs whatsoever. On top of that, it states that you waive your right to sue NBC Songland (e.g., in case you didn't read the contract upon signing).

There is no way to know if NBC/Universal would actually pursue such a course of action and claim to be able to use and exploit all of the submitted songs without paying songwriters - the only thing I am addressing here is the language in the submission agreement. This is by far one of the most onerous such television contest submission agreements I have encountered. There is no warning of what the contract entails until the final part of the submission application, and what they are offering is crippling for songwriters. Most songwriters make their life's savings off of just a few big hits, and to be required to give away your best work like this for free is quite extreme.

Below are some relevant portions of the Songland submission contract:

- "I further agree that the Released Parties exclusively own all right, title, and interest (including, without limitation, all copyrights) in and to any and all recordings made by them and in and to any and all video that I have provided in connection with my application and any other materials that I have provided or may provide in connection with my application or the Program"

- "Without in any way limiting the waivers and releases set forth herein, I waive any claims to royalties of any kind, whether accruing now or in the future, from Producer and NBCUniversal for the use of any such Music or any other music, including, without limitation, any applicable copyright, public performance, mechanical and synchronization royalties."

- "I grant the rights hereunder whether or not I am selected to participate in the Program in any manner whatsoever. "

- "The term "Released Parties" shall mean and refer to Producer, NBCUniversal Media, LLC ("Network"), all entities and platforms of Network, Comcast Corporation, any other licensees or assignees of the Program or the Materials, the other participants in the Program, all other persons and entities connected with the Program, all parent, subsidiary, related and affiliated entities, licensees, successors, assigns, sponsors and advertisers of each of the foregoing, all of the respective directors, officers, principals, executives, on-air talent, employees, agents, contractors, partners, shareholders, representatives and members of each of the foregoing, and the respective heirs, next of kin, spouses, guardians, representatives, executors, administrators, successors, licensees and assigns of each of the foregoing."

Now, to be impartial, maybe the NBC/Universal lawyers did not mean for it to be so onerous and were merely drafting broad language to cover all contingencies and protect their client. Normally, one side's lawyers might draft a contract like this and the other side's lawyer would review it and clean up the most egregious language in order to protect the client. Here, however, there is no negotiation - this is technically known as a "contract of adhesion" in legal terminology.

So be warned that you should always read all of the language in such agreements and decide if the risk is worth the reward. Although it might be deemed overreaching vis-a-vis an adhesion contract if NBC were to try to enforce this against all songwriters who submit, it is better not to go down that road.

March 8, 2016

NBC Universal Changes Language in Songland Submission Form

By Wallace Collins

After my statements went viral and there was a big outcry from songwriters, NBC announced that it would change the language:


It started with just one voice, but then tens of thousands of songwriters and musicians joined in, and it made a difference!

March 10, 2016

Beastie Boys & UMG Awarded Attorney's Fees In TufAmerica Copyright Action

By Jordan Greenberger

The SDNY awarded the Beastie Boys and their label, UMG, attorney's fees under section 505 of the Copyright Act, after they successfully defeated the plaintiff's infringement claims at summary judgment. The question at summary judgment was whether the plaintiff had standing (it did not), and the court found that awarding fees furthered the objectives of the Copyright Act by deterring the filing and pursuit of lawsuits in which chain of title has not been properly investigated by the plaintiff. The court reduced the Beastie Boys' lawyer's fees by 10% for some vague billing entries and duplicative work; 15% was reduced from the label's lawyer's fees based on vague and sparse entries. The Beastie Boys and UMG were also awarded costs. The totals were: Beastie Boys: approx. $591k fees, approx. $11k costs, and UMG: appox. $234k fees, approx $8k costs.

TufAmerica, Inc. v. Diamond et al., No. 12-cv-3529 (S.D.N.Y. filed Mar. 9, 2016).

March 11, 2016

Peter Paul Biro v. Conde Nast

A limited-purpose public figure is required to allege sufficient facts to assert the existence of malice in a defamation claim.

By Pia Katerina Tempongko

In this day and age, the line between public figures and ordinary people seems to get blurry. The proliferation of different platforms turn certain people from private individuals into television celebrities. This new kind of celebrity status has been made famous by reality shows, social media presence, and blogosphere notoriety. Current events are instantaneously relayed to the masses through TV networks, radio, social media, SMS/MMS exchange, and the like. Of course, the yin has to balance the yang. The good that comes with being famous, however, comes with the vulnerability to outside attacks.

Peter Paul Biro, the plaintiff in this case, was the subject of an article that was printed in the The New Yorker magazine, which is published by the defendant. Biro's business is art restoration and authentication, and he well known in the art world; he has developed scientific approaches to authenticating art works through fingerprint analysis. Biro alleges that the article was false and defamatory as it alludes to his practice, methods and character being questionable. He claims that article addresses:

art authentication being subjective more than objective;
Biro's attempts to render objective what has historically been subjective;
mentions several lawsuits against Biro with respect to his work;
the author's emphasis on the suspicious aspects of Biro's background; and
Biro's denial or his attempt to explain when confronted by the author with respect to these lawsuits and various allegations.

As there were so many alleged defamatory statements within the 16,000 word article, the court had to classify and address which were actionable versus non-actionable. It granted the defendant's motion to dismiss on the non-actionable statements, and denied the motion regarding those that were actionable. The court ruled that statements that are substantially true and based on facts are not defamatory statements, and therefore not actionable, in a defamation suit. Statements of pure opinion are also non-actionable. However, a statement of opinion that is based on undisclosed facts can be potentially actionable because it carries with it an implicit statement of facts. On the other hand, a statement that supplies additional affirmative evidence suggesting that the person stating it intends or endorses the defamatory inference is an actionable statement. Additionally, when an author fully sets forth the factual basis for a particular view, the author's conclusion constitutes non-actionable opinion. The court granted in part and denied in part the defendant's motion to dismiss. (Biro v. Conde Nast, 883 F.Supp.2d 441 (2012))

Biro appealed the case, and the Second Circuit discussed 2 main points: 1) Whether Biro is a limited-purpose public figure; and 2) what is required for a defamation claimed by a limited-purpose public figure to stand. The Court ruled that Biro was a limited-purpose public figure. It ruled that: 1) Biro successfully invited public attention to his views in an effort to influence others to the incident that is the subject of litigation by inviting public scrutiny of his forensic methods to authenticate art by participating in several documentaries; 2) Biro voluntarily injected himself into a public controversy related to the subject of litigation by agreeing to frequent interviews; 3) Biro assumed a position of prominence in the public controversy by seeking and obtaining clients and fame in the process; and 4) Biro maintained regular and continuing access to the media by resorting to the press to defend his position on various controversies. ( Lerman v. Flynt Distrib. Co., 745 F.2d 123, 136-37 (2nd Cir. 1984))

The Court also ruled that a plaintiff who is a limited-purpose public figure must plausibly allege actual malice in a defamation claim. The plaintiff must allege sufficient facts that the defendant acted with actual malice when it comes to the alleged defamatory remarks.

Although celebrities and public figures accept the reality that personal attacks are part of public life; sometimes, an ordinary person's actions make him or her an unwilling celebrity. This in turn results in the person's loss of some rights that are only afforded to private citizens.

Week In Review

By Michael B. Smith and Ben Natter

Supreme Court Declines to Hear Appeal in E-books Case

The Supreme Court to declined to consider an appeal of an appellate court finding that Apple conspired to fix E-book prices. A federal appeals court ruled in 2014 that the publishers and Apple "combined forces to grab control over price," and that "a coordinated effort to raise prices across the relevant market was present in every chapter of this story." The price fixing stemmed from Apple's entry into the e-book market in 2010.


Rhapsody Follows Spotify into Mechanical License Litigation

David Lowery, former member of Cracker and Camper Van Beethoven, has filed a putative class action lawsuit against music streaming service Rhapsody, alleging that Rhapsody committed willful copyright infringement by streaming songs without licensing the mechanical rights. The complaint, which mirrors the one Lowery filed in December against Spotify, seeks (1) to enjoin Rhapsody from continuing that practice, (2) to require Rhapsody to retain a third party auditor to identify and remove infringing works, (3) restitution, (4) actual damages, (5) statutory damages, and (6) attorneys' fees.


Muzak Lawsuit Fades into Background

On Monday the D.C. District Court dismissed a copyright infringement lawsuit filed by SoundExchange, Inc. accusing Muzak LLC of "playing a shell game to cheat artists and rights holders out of royalties." When the DMCA passed and changed the way royalty rates were calculated, Muzak was classified as a "preexisting subscription service" (PSS) entitled to continue paying earlier, lower rates. DMX, another PSS, stopped paying SoundExchange pre-DMCA rates when it restructured in 2006. When Mood Media Corporation acquired DMX, it reverted to the older, lower rates. Mood Media then began paying DMX's royalties through Muzak, which it also had acquired, at the lower rate Muzak consistently had been paying. SoundExchange sued to get Mood Media to go back to the higher rates DMX had been paying prior to its acquisition.

Muzak's motion to dismiss required the court to resolve competing interpretations of section 114(j)(11) of the DMCA. Muzak argued that the PSS rate applies to any transmissions of the same type provided prior to the enactment of the DMCA. SoundExchange argued that only the exact same transmissions that were being made pre-DMCA could qualify for the PSS rate. The District Court found that other provisions in section 114(f), as well as the legislative history, evidenced a clear intent to allow new types of services to benefit from the PSS rate.


Facebook Not Liable for Masturbation-Themed Profile

On Monday, the Northern District of California dismissed with prejudice a complaint filed by Franco Caraccioli seeking to hold Facebook responsible for harm he suffered as a result of a fake Facebook account entitled "Franco Caracciolijerkingman." The fake profile allegedly featured videos and pictures of Mr. Caraccioli "pleasuring himself." Caraccioli alleged that when he initially reported the site to Facebook, he received an email stating that Facebook had reviewed the account and "determined that Franco Caracciolijerkingman is a person who's using Facebook in a way that follows the Facebook Community Standards." Caraccioli says Facebook deleted the account after he threatened legal action.

The court found that disclaimers in Facebook's Terms of Service precluded any allegation that Facebook published or "republished" the material on the page, and therefore Caraccioli failed to state a claim for defamation, libel, false light, or public disclosure of private facts. The court further held that the Terms of Service placed restrictions on users' behavior, but did not create affirmative duties that would give rise to a negligence claim. Finally, the court found that Facebook was immune to claims seeking to hold it liable for user-generated content under section 230 of the Communications Decency Act. The erstwhile Mr. Caracciolijerkingman remains at large.


False Advertising Plaintiff Must Go After Head Alone

Russell Minoru Ono filed a putative class action lawsuit on behalf of "[a]ll residents of California who purchased Tour-Line Racquets" against tennis racket manufacturer Head. Ono alleges that Head's "extensive and long-term advertising campaign" makes false and deceptive claims that professional tennis players play with Head's latest models, when in fact the endorsing players use different rackets on the court. On Tuesday, the Central District of California denied class certification, finding that Ono failed to demonstrate that the allegedly false representations were made to all class members, given that Head's marketing campaign was fairly narrow, and Head's target market was not the same as its actual market. In other words, Ono could not establish that most or all of those who purchased the racket were exposed to the allegedly deceptive marketing messages.


James Deen Cited for Violations of LA Condom Law

California's Division of Occupational Safety and Health (Cal/OSHA)has issued citations with proposed fines of almost $80,000 against adult film production company Third Rock Productions for multiple violations of Los Angeles County condom laws and other safety laws intended to protect performers from loathsome diseases. Third Rock is owned and operated by Bryan Sevilla, a/k/a James Deen. The Cal/OSHA board recently decided not to adopt statewide regulations specifically requiring the use of condoms and other safety measures in adult films, after vigorous lobbying from the porn industry.


Hulk Hogan Distinguishes Between Public and Private Personas in Sex Tape Suit

Terry Bollea, a/k/a Hulk Hogan, testified on Monday in his $100 million invasion-of-privacy lawsuit against the website Gawker for posting a video of Bollea in flagrante delicto. Bollea claims that Gawker violated a Florida law that prohibits publication of private communications, while Gawker asserts protection under the First Amendment. Gawker cited Bollea's long history of speaking frankly and publicly about his love life. Bollea argued that those comments were made "in character," and that--in contrast to his public persona--"Terry Bollea is a normal person." Bollea gave this testimony wearing Hulk Hogan's signature bandanna.


Photographer Says ABC Stole His Weiner Video

"Visual Journalist" Paul Adao filed a copyright infringement lawsuit against ABC in the Southern District of New York on Monday. Adao alleges that the network used a clip from a video he took of former Congressman Anthony Weiner without permission.


Photographer Sues CBS Sports Over Use of University of Nevada Las Vegas Photo

On Wednesday, a Las Vegas photographer sued CBS Sports Network in the Southern District of New York for copyright infringement, alleging that the network published his photograph of University of Nevada Las Vegas football coach Tony Sanchez without permission.


NBC Boston Affiliate Sues Comcast Over Contract Termination

WHDH-TV, NBC's Boston affiliate, sued Comcast (NBC's owner) for breach of contract and antitrust violations. WHDH is seeking an injunction to stop Comcast from replacing it, alleging that the planned move would violate the agreement Comcast struck with the FCC to get approval to acquire NBC.


National Hockey League Clears Patrick Kane

The National Hockey League (NHL) decided not to pursue further investigation in connection with Patrick Kane's behavior and rape investigation stemming from an incident that occurred this past summer in upstate New York. The Erie County District Attorney's Office closed the investigation this past November after it found multiple inconsistencies in the accuser's story.

Kane currently leads the NHL in scoring and is the front-runner to win both the Art Ross (scoring title) and Hart Trophy (league MVP). Kane would be the second American to win both trophies in the same year and the first American since 1925.


New Ban on Drug Hits Russian Athletes Hard

Meldonium was added to the World Anti-Doping Agency's prohibited list in January, and Maria Sharapova tested positive for the drug later that month. Since the announcement of the failed drug test, seven other Russian athletes have tested positive as well. Meldonium, a drug widely used by Russian and European athletes, increases blood flow and the amount of oxygen taken into the body. The drug is thought to improve recovery times for athletes. It was widely distributed among Russian athletes until September 2015, when notice was given that the substance would be banned.


Maria Sharapova's Admission Sends Her Sponsors Fleeing

Within hours after Maria Sharpova's positive drug test announcement, Nike, Porsche and TAG Heuer suspended their sponsorship activities. Given that Nike and TAG Heuer have stayed silent or have been somewhat supportive of their athletes during times of controversy in the past (i.e. Tom Brady, Kobe Bryant, and Tiger Woods), many are speculating increasing pressure from social media or the fact that Sharapova is past the prime of her career as the true reason behind the sponsors' activities with Sharapova.


Pop Warner Settles Dispute Over Player With CTE

A settlement in the case of a former Pop Warner football player who committed suicide at 25 and had CTE is apparently a first of its kind and raises questions about the future of youth football. A wrongful death suit was filed in federal court in Wisconsin in 2015 for $5 million. Joseph Chernach hung himself in 2012, and his family sent tissue samples from his brain to Boston University. Severe signs of CTE were found. Chernach's family alleged that Pop Warner was "abnormally dangerous ... as it exposes children to a combative/collision sport which is likely to result in harm." The suit also alleged that coaches and staff were not properly trained.

As part of the settlement, both sides agreed to a confidentiality agreement.


New Defendant Pleads Guilty in FIFA Corruption Case

Miguel Trujillo, a Colombian working as a consultant to schedule soccer matches, plead guilty to money laundering conspiracy, wire fraud conspiracy and filing a false tax return in federal court in Brooklyn earlier this week. He also forfeited $495,000. Trujillo is the 42nd defendant in the FIFA case to plead guilty. He admitted to handling payments of bribes for several sports marketing companies, as well as his own consulting company to soccer officials from various countries and FIFA. Trujillo acknowledged paying hundreds of thousands of dollars in bribes to soccer officials.

Concurrently, Rafael Esquivel, a FIFA official from Venezuela, plead not guilty to corruption charges in federal court in Brooklyn.


Justice Dept. Appeals Ruling in Apple iPhone Case in Brooklyn

Prosecutors are appealing a decision made by Magistrate Judge James Orenstein, which held that Apple was not obligated to help the government unlock an iPhone related to a drug investigation. "Apple is not being asked to do anything it does not currently have the capability to do," argued the Justice Department in federal court in Brooklyn earlier this week.

Prosecutors argued that Apple is installing software that potentially harms criminal investigations. "Apple's software is actively impeding the execution of the search warrant in several ways." This case is being watched closely due to its potential impact on the the San Bernardino shooting case.


Erin Andrews Awarded $55 Million in Lawsuit

A jury awarded Erin Andrews $55 million in a negligence leading to emotional distress and invasion of privacy suit stemming from illegal videotaping at the Nashville Marriott in 2008. The jurors found Michael David Barrett, the man who illegally recorded the videos, 51 percent at fault and the Marriott hotel chain to be 49 percent at fault. Barrett has already served two years in prison as a result of his actions. It is expected that Marriott will appeal the decision.


Wells Fargo Charged With Fraud in Video Game Start-Up Case

On Monday, Wells Fargo and the Rhode Island Economic Development Corporation were charged with fraud in connection with a $75 million bond for a video game company based in Rhode Island. The Rhode Island Economic Development Corporation had agreed to borrow money and lend it to 38 Studios, owned by former Red Sox pitcher Curt Schilling. State officials hoped that this loan would encourage other businesses to relocate to Rhode Island.

38 Studios declared bankruptcy and the state opted to pay the debt which total almost $90 million. Neither the state agency nor Wells Fargo disclosed 38 Studios's true financials prior to issuing the bond. The S.E.C. said Wells Fargo also cut a deal with 38 Studios, which agreed to pay the bank $400,000 if the bond deal closed.


March 16, 2016

Center for Art Law Case Updates

The following case selection first appeared in this week's Center for Art Law newsletter:

Robert Rauschenberg Foundation v. Grutman et al., 2D14-3794 (Fla. Dist. Ct. App. Jan. 6, 2016) -- Florida's Second District Court of Appeals upheld the trial courts decision to award $24,600,000 to be split evenly among the three trustees of the Robert Rauschenberg Revocable Trust. The Florida statute addressing trustee fees provides only that the award be "reasonable under the circumstances" without providing any criteria or methodology. § 736.0708(1), Fla. Stat. (2007). Looking at the legislative history, the court determined that the legislature intended to apply the criteria set forth in West Coast Hospital Ass'n v. Florida Nat'l Bank of Jacksonville, 100 So. 2d 807 (Fla. 1958). Thus, the court properly followed West, the methodology proposed by the trustees.

Kosse v. Kiesza, no. 1:16-cv-00160 (E.D.N.Y. Jan. 12, 2016) -- Jamie Mitchel Kosse filed claims for copyright infringement and false endorsement against singer Kiesza (whose real name is Kiesa Rae Ellestad) and Universal Music Group. Kosse's grafitti in Williamsburg was featured as the background in Kiesza's music video for "Hideaway" without his permission. In the past, his work has been used by NBC, CBS, Paramount Pictures, and Universal Studios with a license.

Heiden v. Main Field Projects, No. 650202/2016 (NY Sup. Jan. 15, 2016) - Main Field Projects failed to ship two works of art by Ibrahim Mahama to the residence of Miety Heiden.

Gagosian Gallery, Inc. v. Pelham Europe, Ltd., No. 1:16-cv-00214 (S.D.N.Y. Jan 12, 2016) -- Action to quiet title to a Picasso bust currently on loan to MoMA. Gagosian alleges ownership over the work and has contracted with a third party to sell the work. Pelham is attempting to enforce a prior agreement to purchase the work.

Heriveaux et al v. The Retrospect Group, Inc. et al, No. 1:15-cv-05536 (S.D.N.Y. Jul. 16, 2015) -- Defendants were using copyrighted Basquiat works in stationary. The case was dismissed with prejudice.

Certain Underwriters at Lloyd's London Subscribing to Policy No. B1161A143678 a/s/o Marc Selwyn Fine Art, Inc., v. Elite Systematic Arts, Inc. et al, No. 1:16-cv-734 (E.D.N.Y. Feb. 11, 2016) -- American Airlines and seven art handling companies are being sued by Lloyd's of London, the insurer of a sculpture that was allegedly damaged while it was shipped from Paris to New York for the Armory Show last year. Lloyd's insured the sculpture for Marc Selwyn Fine Art, a gallery in Beverly Hills, and is claiming breach of contract and negligence. USA v. Roohparvar, No. 3:16-cr-00096-CRB (N.D. Cal. Mar. 8, 2016). -- A Saratoga resident, Shahram "Ron" Roohparvar, has been charged with illegally selling art pieces constructed from elephant ivory (a practice banned since 1976). This is not Roohparvar's first rodeo with the law; in the past he has faced other federal criminal charges for money laundering.

Sotheby's, Inc. v. Mao et al., 652283/2015 (NY Sup. Jun. 25, 2015) --Sotheby's is suing Christophe Mao and the gallery he owns, Chambers Fine Art LLC. Mao has failed to pay over $2.1 million that he borrowed from Sotheby's after signing a Secured Revolving Loan and Sale Agreement.

Max v. Moskowitz et. al., No. 162953/2015 (NY Sup. Dec. 22, 2015) -- Mary Max, wife of artist Peter Max, filed suit against his agent, ALP, Inc. (a company that runs the NJ warehouse where Ms. Max claims she stored her paintings), and two of Peter Max's children for stealing 82 paintings. The paintings were stored in a warehouse and Ms. Max claims they are worth more than $4.2 million. The family has recently been embroiled in a public scandal covered in New York tabloids.

Fisher v. Petr Konchalovsky Foundation et al., No. 1:15-CV-09831 (SDNY Dec. 17, 2015) -- Richard Fisher of Malibu is suing the Petr Konchalovsky Foundation, saying that when he bought the oil painting "Still Life with Grinder" in 1991 from Sotheby's, the organization declared it an authentic work by Konchalovsky, a Russian artist. In 2012, Fisher decided to sell the work and asked Sotheby's in New York to auction it, but the foundation claimed it wasn't authentic. The Moscow-based foundation did not examine the work, dated 1920, and instead relied on photos, Fisher alleges.

Sam Francis Foundation v. Christie's, Inc. (9th Cir. 2014), cert. denied, 136 S.Ct. 795 (Jan. 11, 2016) -- The Supreme Court has declined to hear artists' resale royalty suit against auction houses like Christie's, Sotheby's and eBay. Artists like Chuck Close argue these auction houses are failing to pay royalties, which they claim is in direct violation of the California Resale Royalties Act of 1976. New York Congressman Jerrold Nadler is the lead proponent of the ART Act, which will directly address the royalty issues if passed by Congress.

Mlinar v. United Parcel Service Inc. et al., No. SC14-54 (Fla. 2016) -- The Supreme Court of Florida recently reinstated an art theft lawsuit between artist Ivana Vidovic Mlinar and three defendants - Pak Mail, a South Florida packing store, the United Parcel Service Co. (UPS), and Cargo Largo, UPS's lost goods contractor. The suit alleges that these parties stole Mlinar's work, profited from the theft of her paintings, used her name or likeness without Mlinar's authorization, and, finally, that the defendants violated Florida's Deceptive and Unfair Trade Practices Act.

The Center for Art Law strives to create a coherent community for all those interested in law and the arts. Positioned as a centralized resource for art and cultural heritage law, it serves as a portal to connect artists and students, academics and legal practitioners, collectors and dealers, government officials and others in the field. In addition to the weekly newsletter (http://cardozo.us2.list-manage.com/subscribe?u=78692bfa901c588ea1fe5e801&id=022731d685), the Center for Art Law subscribers receive updates about art and law-related topics through its popular art law blog (http://itsartlaw.com/blog/)and calendar of events (http://itsartlaw.com/events/). The Center for Art Law welcomes inquiries and announcements from firms, universities and student organizations about recent publications, pending cases, upcoming events, current research and job and externship opportunities. To contact the Center for Art Law, visit our website at: www.itsartlaw.com or write to itsartlaw@gmail.com.

March 18, 2016

Week in Review

By Ben Natter

Swiping a Priceless Antiquity ... With a Scanner and a 3-D Printer

Two German artists, Nora al-Badri and Jan Nikolai Nelles, claimed to use mobile 3D scanning technology to scan and create copies of the bust of Nefertiti. The bust is considered the "jewel of Germany's state museum" and is on advertisements for the museum throughout Berlin. Experts opined that the quality of the scan was too high and that the artists somehow acquired the museum's high quality 3D scans and made copies. The artists claim to have made the scans using technology originally developed for the Xbox game console.



Federal Agents Raid Christie's, Seizing Ancient Sculptures

Two Indian sculptures, valued together at about $450,000, were seized by the U.S. government prior to being auctioned at Christie's earlier this week. The sculptures were scheduled to be included in a Tuesday Christie's auction titled The Lahiri Collection: Indian and Himalayan Art, Ancient and Modern. Christie's denied knowledge of the items being stolen.

The government had been searching for the antiquities since 2012, when images of the sculptures were found during a raid of a storage facility belonging to Subhash Kapoor, a former gallery owner who is currently under international investigation for dealing in stolen and antiquities.


Wideman Suspension Reduced by Arbitrator

An independent arbitrator ruled on Friday that the National Hockey League's (NHL) 20 game suspension of Dennis Wideman should be reduced to 10 games. Wideman had already sat out 19 of the 20 games, thus the main impact of the decision is that Wideman will be paid his salary for 9 games that he did not play.

The arbitrator felt that Wideman's contact with the official was unintentional and that Wideman's concussion impacted his behavior. The NHL is exploring options for an appeal.


Mejia's Lawyer and Major League Baseball Trade Charges Over Doping Ban

The attorney representing Jenrry Mejia, the Mets' pitcher who was permanently banned from Major League Baseball (MLB) after three failed drug tests, spoke out against MLB at a press conference earlier this week. Meija's attorney summarized his client's belief that he had been threatened by MLB and that there was some type of conspiracy against his client. Attorneys for MLB denied the allegations.


Mass Market Edition of To Kill a Mockingbird to End

The Hachette Book Group, publisher of the mass market paperback edition of To Kill A Mockingbird, will be discontinuing printing of its paperback edition of the book in late April. The mass market edition of the book is the copy supplied to schools around the country.

More than 20 million copies of the mass market paperback have been sold over the last 40 years. HarperCollins will continue to publish the "trade" paperback, which sells for about twice as much as the mass market edition. The publisher stated that the estate of the author did not wish to renew its license. It is possible that the estate may enter into another license agreement with a different publisher.

Bill Cosby Turns to His Insurance For Help With Legal Costs

To help with legal costs for defamation suits filed in connection with statements Bill Cosby made about claims of sexual assault, he is relying on insurance policies he has on his properties in Massachusetts and California, each with limited liability coverage of $1 million. Cosby and his wife, Camille, also have another policy with $35 million in coverage. Cosby would like the insurance companies to also be responsible for any awards decided after a judgment.

Bill Cosby's insurer, American International Group (A.I.G.) argued federal court that it should not be required to pay legal costs for defamation lawsuits arising from acts of sexual misconduct. A federal judge found in favor of Cosby in November. The California Judge found the language of the policy to be ambiguous, and that precedent required an interpretation favoring extension of coverage.

A.I.G. is paying the legal fees in three of the five defamation suits and is currently disputing coverage in federal court with Cosby in Massachusetts, Pennsylvania, and California, arguing that it should not be responsible for paying Cosby's legal fees and should not be responsible for any final judgments.


Sony to Pay Jackson Estate $750 million for Stake in Catalog

Michael Jackson's estate has agreed to sell its 50% stake in Sony/ATV for $750 million. The deal will significantly strengthen Sony's position as a music publisher, and the catalog includes the Beatles, in addition to Michael Jackson and many other high profile songwriters and artists. Jackson acquired the rights to the Beatles' catalog in 1985 for 41.5 million. Sony and Jackson formed a partnership to control the catalog in 1995.


American Bar Association to Enforce Stricter Timeline for Law Graduates to Pass the Bar Exam

This week the American Bar Association (ABA) put the word out that it planned to "tighten" the language and enforcement of a rule requiring 75% of law school graduates to pass the bar exam within two years of graduation. The current rule was somewhat vague, and many schools were allowed to avoid the requirement. Two schools in California were recently placed on probation for violating the rule. Previously, A.B.A. accreditation of two additional schools was temporarily withdrawn due to low bar passage rates. Bar passage rates have been dropping across the country.


National Football League Suspends Bryant for One Year

Pittsburgh Steelers wide receiver Martavis Bryant was suspended by the National Football League (NFL) for at least one year after a second violation of the NFL's substance-abuse policy. Bryant was a fan favorite and caught 50 passes for 765 yards and six touchdowns after missing the first four games of last season due to a previous violation of the NFL substance abuse policy.


NFL Acknowledges Concussion and CTE Link

Jeff Miller, the NFL's Senior Vice President for Health and Safety, admitted on Monday that a correlation between concussions and CTE exists during a discussion about concussions that was organized by the U.S. House of Representatives' Committee on Energy and Commerce. This is the first time an official from the NFL publicly acknowledged that there was a connection.


FIFA Seeks to Collect Millions of Dollars in U.S. Case

Earlier this week FIFA made a formal request to the US.. Department of Justice for a share of the millions of dollars it will collect from defendants who have and will plead guilty to involvement in bribery and kickbacks involving FIFA. The U.S. government, in characterizing FIFA as a victim, has helped FIFA's position for receiving some of the funds. FIFA made the formal request on Tuesday to the Department of Justice. Such requests are usually made closer to sentencing of defendants. If the government can prove knowing participation in the corruption, it could bar FIFA from a share of the amount collected.


Spotify Settles With the National Music Publishers' Association

Spotify will reportedly pay between $16 million and $25 million, along with a $5 million bonus, to the National Music Publishers' Association for unpaid royalties to U.S. music publishers. As a result of the settlement, industry experts anticipate that songwriters and publishers who had previously boycotted the Swedish music streaming company may be more inclined to license their music for use on Spotify.


Italian art Police Crack Case of Verona Museum Theft

Italian Police made 13 arrests earlier this week in connection with a robbery of 17 paintings from Verona's Castelvecchio Museum. In a well-timed robbery, the men were able to take more than an hour to collect the paintings and flee the museum. Investigators analyzed 4,000 hours of video and hundreds of phone calls to identify the suspects. The suspects included the security guard who was tied up during the heist, as well as 12 other individuals. The stolen works were not recovered but are believed to be in Moldova.

Video of the heist was also released and is visible at the below link.


March 25, 2016

Week in Review

By Eric Lanter

Hulk Hogan Awarded $115 Million in Privacy Suit Against Gawker, and then the Jury Tacks on Another $25 Million

Hulk Hogan, the retired wrestler whose real name is Terry G. Bollea, has obtained a $115 million judgment against Gawker. A Pinellas County, Florida jury awarded Mr. Bollea this amount after hearing the invasion of privacy case that arose after Gawker.com published on its website a secretly recorded tape of Mr. Bollea engaging in sexual intercourse.

After the initial award, jurors further awarded Mr. Bollea $15 million from Gawker Media, $10 million from the company's founder, Nick Denton, and $100,000 from the site's former editor in chief, Albert J. Daulerio, as punitive damages.



Metropolitan Transportation Authority, as Victim, Wants Transit Thief's Profits From Hollywood Movie Deal

A new film, "Train Man," is the center of controversy for the Metropolitan Transportation Authority (MTA). The film concerns Darius McCollum's transit exploits in stealing buses and trains in the New York metropolitan area. However, the MTA seeks to take advantage of the Son of Sam law, which prevents criminals from profiting from their crimes.


SoundCloud Signs Licensing Deal With Sony

SoundCloud, the streaming music service, announced it signed a licensing deal with Sony. SoundCloud offers over 100 million songs for free, and this new deal opens the door for the company to use Sony's licensed music to create a paid subscription service, which the music industry majors hoped to see before they agreed to work with SoundCloud.


Hundreds of Looted Ancient Artifacts are Returned to Italy

Artifacts dating from the Seventh Century B.C. to the Second Century A.D. were found two years ago in a Geneva Freeport storage unit, which authorities traced to Robin Symes, a London art dealer. Mr. Symes will not be prosecuted in Italy because the statute of limitations has run for the crimes under investigation by Italian authorities. However, a civil suit is now underway in England for the return of other works owned by Mr. Symes to Italy and Greece.


What Tournament? The National Collegiate Athletic Association's Biggest Event May Be at a Higher Court

The National Collegiate Athletic Association will soon be filing a petition to the Supreme Court, presumably raising the question of whether its amateurism rules, which restrict compensating college athletes, are unreasonably and even illegally restrictive. If the Supreme Court accepts the case, there may soon be a resolution to the hotly contested issue of compensating college athletes.


New York State Considers Legalizing Mixed Martial Arts

On Tuesday, the New York State Assembly passed a bill legalizing mixed martial arts, the sport that has gained popularity and generated controversy in recent years. Once the Senate approves, Governor Andrew Cuomo is expected to sign the bill, which would make New York the last state in the country to legalize mixed martial arts.


Advertising Industry Wrestles with Bias After a Lawsuit

In the wake of a lawsuit filed against J. Walter Thompson, an advertising agency, the advertising industry is forced to confront its demons. Gathering in Miami, Florida this week, advertising agencies have had to publicly confront the existence of gender and racial discrimination in the industry, given the volume and severity of the sexist and racist remarks forming the center of the lawsuit against J. Walter Thompson.


Roger Goodell Calls Chronic Traumatic Encephalopathy Link to Football Consistent With National Football League's Position; However, Investigation Shows Deeply Flawed Concussion Research

The commissioner of the National Football League (NFL), Roger Goodell, at the NFL's annual team owners' meeting, said that the link between playing football and players being diagnosed with chronic traumatic encephalopathy (CTE), a degenerative brain disease, has been consistent with the NFL's position over the years. While some team owners, like John Mara, co-owner of the New York Giants, agreed with Goodell's sentiment, others, like Jerry Jones, owner of the Dallas Cowboys, said it was "absurd" to draw a connection between football and CTE.

Furthermore, an investigation by the New York Times reveals that the NFL concussion research was far more flawed than previously known. For example, many teams were not required to submit data relating to diagnoses of chronic traumatic encephalopathy (CTE). These flaws have raised new questions about the NFL committee's findings about the risk of injury in playing football.



Museums Seek Help as Censorship Grows in Turkey

A Turkish research group, Siyah Bant, will publish a guide for what venues and artists should do when their government attempts to censor them. In Turkey, that censorship has been occurring through the government's withholding approval of any renovations to a gallery's space. For those who face the challenge of censorship, this guide, published in conjunction with Istanbul's Human Rights Law Research Center, will serve as a valuable tool.


Anti-discrimination Law Elicits Rebukes from Businesses

Businesses and organizations have condemned the North Carolina State legislature's banning any local government measures protecting people from discrimination on the basis of sexual orientation and gender identity. The National Collegiate Athletic Association (NCAA) has joined that list, vowing to monitor what North Carolina does next.


Weinstein Company Opposes Bill on Religion in Georgia

The Weinstein Company is threatening to end film production in Georgia over the State's proposed Free Exercise Protection Act, which would let religious officials and organizations avoid acting in violation of their beliefs. Critics if the bill say that it will have the effect of leading to discrimination against individuals in the LGBT community.


Law Graduate Who Sued Her School Loses at Trial

A jury in San Diego rejected claims by Thomas Jefferson School of Law alumna Anna Alaburda, who claimed that law school enticed her to enroll based on misleading graduate employment figures. After graduating in 2008 with $150,000 in debt, she has not been able to find a full-time, salaried job, according to her lawsuit. However, the jury voted nine to three to reject her claims.


Leon H. Charney, Investor, Cable TV Host and Peace Broker, Is Dead at 77

Leon Charney, an entertainment lawyer who also became an author, television host, real estate mogul, and peace broker, died on Monday at the age of 77.


March 30, 2016

Biro v Conde Nast (continued...)

By Richard A. Altman

This blog will provide some additional information regarding Mr. Biro's ongoing defamation case. The description of the case in Ms. Tempongko's post (http://nysbar.com/blogs/EASL/2016/03/peter_paul_biro_v_conde_nast.html) is fair and accurate, but I would like to add that Mr. Biro filed a petition for a writ of certiorari in the U.S. Supreme Court on March 4, 2016. certpetitionwcover.pdf Responses are due on April 7th. The petition makes three principal arguments for Supreme Court review; they are summarized here briefly.

1. There are irreconcilable conflicts in Federal and State case law over the definition of "public figure".

In the landmark cases of New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), the Supreme Court created significant First Amendment protections for criticism of public officials and public figures respectively, by holding that such persons had to prove constitutional malice by clear and convincing evidence, in order to prevail on a defamation claim.
In the 1970s, the Court decided four public figure defamation cases, Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), Time, Inc. v. Firestone, 424 U.S. 448 (1976); Wolston v. Reader's Digest Assn., Inc., 443 U.S. 157 (1979); and Hutchinson v. Proxmire, 443 U.S. 111 (1979). In each and every case, the Court ruled that, despite each plaintiff's extensive involvement in a controversy which had attracted significant public attention, he or she was not a public figure.

The Gertz case did not actually define the term. It is unclear whether the Gertz Court purported to define the term "public figure", or was only explaining why public figures are treated differently from others. A careful reading of the majority opinion strongly suggests the latter. (1 Sack, Sack on Defamation, 5:3.1 at 5-19 to 20 (4th ed. 2010, Rel. #4, 4/14)). Judge Sack said that, "[t]he lack of a comprehensive definition or description of the term "public figure", in the Supreme Court and the divergent case law in state and lower federal courts make the determination of a defamation plaintiff's status an uncertain process, differing from state to state and court to court." (Sack, supra, 5:3.6 at 5-45.)

The Supreme Court's reluctance to find public figure status in the seminal case law has been overlooked by the many courts which, since then, have been far more willing to do so. As one District Court observed about Gertz, "[i]n addition to injecting himself voluntarily into this area of public controversy, Gertz had achieved some public prominence in his own right. He had served as an officer of the National Lawyers Guild, and had considerable stature as a lawyer, author, lecturer, and participant in matters of public import. Perhaps if attorney Gertz was not a public figure, nobody is." (Hotchner v. Castillo Puche, 404 F. Supp. 1041, 1044 (S.D.N.Y.1975), rev'd on other grds., 551 F.2d 910 (2d Cir.1977), cert.den. 434 U.S. 834 (1977)(citation and quotation marks omitted)).

In the 47 years since, the Supreme Court has not elaborated further on the public figure question. This lack of elaboration since 1979 has led to irreconcilable conflicts among the cases in both Circuit and State courts. Mr. Biro's petition argues that the Supreme Court should set out a national and uniform definition of "public figure", one which considers not only the original purpose of the term, but also the last two decades' dramatically changed media landscape, including the Internet, social media, and the escalating threats to an individual's reputation posed by the new world of blogs, tweets and viral Internet postings, and that the Court should strike an appropriate balance between the First Amendment and a person's right to recover for unjustified reputation damage.

This issue has received much commentary. (See, e.g, Sanders & Miller, Revitalizing Rosenbloom: the Matter of Public Concern Standard in the Age of the Internet, 12 First Amend. L. Rev. 529 (2014); Kelley, Tortious Tweets: A Practical Guide to Applying Traditional Defamation Law to Twibel Claims, 73 La.L.Rev. 559 (2013); Lat & Shemtob, Information Privacy: Public Figurehood in the Digital Age, 9 J. of Telecomm. & High Tech. L. 403 (2011).)

Depending on the Circuit or State where a claim is brought, there can be either a three-part, four-part or five-part test for determining public-figure status. Some courts (like the Second Circuit) consider whether a plaintiff has regular and continuing access to the media. (Lerman v. Flynt Distributing Co., 745 F.2d 123, 137 (2d Cir.1984)); others do not. Some courts examine whether the statements complained of are germane to the public controversy; the Second Circuit does not. Some courts examine whether the statements relate to matters of public concern; others do not.

In Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 757 758 (1985), the Supreme Court said that it was necessary to "balance the State's interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression" and that "the individual's right to the protection of his own good name reflects no more than our basic concept of the essential dignity and worth of every human being a concept at the root of any decent system of ordered liberty." Moreover, said the Court, "speech on matters of purely private concern is of less First Amendment concern. As a number of state courts, including the court below, have recognized, the role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent..." The Biro case squarely presents this issue.

Given the vagueness of the test, a test of constitutional dimension, and the profound consequences for a defamation plaintiff's burden of proof and likelihood of success, these disparities are not acceptable. (See Gertz, supra, 418 U.S. at 342 ("Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test.")). Given those consequences, it is unacceptable for a plaintiff, particularly one like Mr. Biro, who the district court found had been potentially libeled, to be stopped from trying to surmount that barrier.

Even when a plaintiff is a limited-purpose public figure because of involvement in a public controversy, the First Amendment protections afforded a publisher should not extend to statements which are not germane to the controversy. Were it otherwise, a public figure would be essentially libel-proof. Involvement in a public controversy should not create an open license to defame, allowing publication of false and irrelevant statements about a public figure's personal life or history.

2. It is practically impossible for a public figure to plead malice successfully against a media defendant in Federal courts, but it is easily done in New York State courts. The conflict is irreconcilable.

Prior to the Biro case, the rule in the Second Circuit was that "resolution of the...actual malice inquir[y] typically requires discovery," (Church of Scientology Int'l v. Behar, 238 F.3d 168, 173 (2d Cir.2001); Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406 (2d Cir.2000).) With a media defendant, evidence of malice is by definition usually deeply embedded in the editorial process and is almost always unknown a priori to the plaintiff. Moreover, an allegation of malice is not a bare legal conclusion as to an element of a cause of action. To say that someone acted with malice is not a legal conclusion at all; it is rather a purely factual assertion about that person's subjective state of mind, i.e. that someone uttered a statement with knowledge that it was false.

New York State courts have approached this problem very differently from the Federal courts. New York cases are uniform and long-standing in requiring that a public figure must prove actual malice in order to prevail at trial (or defeat summary judgment). Yet the cases also recognize that a public figure's ability to plead facts demonstrating malice in a sworn complaint is limited, and can seldom be determined in the pre-discovery context of a motion to dismiss. In New York, therefore, once a plaintiff can allege the publication of statements which are susceptible of a defamatory connotation, he or she is entitled to proceed to discovery.

In this case, the district court had found that the New Yorker article contained four statements which were susceptible of a defamatory connotation, and were not protected opinion. Once that threshold determination had been made, Mr. Biro should have been afforded discovery rights. Whether he could eventually prove malice is not the issue; rather, he should have been given the opportunity to do so.

3. The difference between the Federal and State approaches is substantive, not procedural, and thus violates the Rules Enabling Act and principles of Erie federalism.

The third argument raised by the petition is that the disparity in outcomes between State and Federal courts violates the Rules Enabling Act and Erie federalism, which essentially say that the Federal Rules of Civil Procedure are to be construed so that the outcome of a diversity case, governed by state common-law principles, is the same in either court.

The Rules Enabling Act, 28 U.S.C. 2072(b), provides that the federal "rules shall not abridge, enlarge or modify any substantive right." An interpretation of a rule of procedure which bars a claim in Federal court at the pleading stage, but would permit it to proceed in State court amounts to the abridgment of a substantive right. It violates "the Erie prohibition of court created rules that displace state law." (Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 412 n. 9 (2010)), and "the twin aims of the Erie rule: discouragement of forum shopping and avoidance of inequitable administration of the laws." (Hanna v. Plumer, supra, 380 U.S. at 468 (footnote omitted).)

In this case, the long-standing rule allowing defamation plaintiffs in New York State courts to plead malice generally, without extensive factual detail, defines the scope of their right to proceed to adjudicate their claims. Thus it "is procedural in the ordinary use of the term but is so intertwined with a state right or remedy that it functions to define the scope of the state created right." (Id.) Therefore, Rule 9(b), which allows malice to pleaded generally, cannot be interpreted so as to displace that state rule.

The Second Circuit's refusal to follow New York law, and its unwarranted expansion of the minimal pleading requirement of Rule 9(b) so as to dismiss a state common-law defamation claim, violated the Rules Enabling Act and principles of Erie federalism. The Second Circuit's decisions conflict with more than a century of uniform holdings by all levels of New York State courts.

Whether the Supreme Court will grant the petition is unknown and in any event unlikely, as is true with any petition. Yet the issues the case raises are important ones.

About March 2016

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in March 2016. They are listed from oldest to newest.

February 2016 is the previous archive.

April 2016 is the next archive.

Many more can be found on the main index page or by looking through the archives.