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February 2019 Archives

February 4, 2019

Week In Review

By Angela Peco
Edited by Elissa D. Hecker

Based on reader feedback, we're flipping the script and leading with EASL-related subjects. The General News category has been moved to the end.

ENTERTAINMENT

Rapper 21 Savage Arrested by Immigration and Customs Enforcement in Atlanta, Faces Deportation

Immigration and Customs Enforcement (ICE) arrested 21 Savage, whose real name is Shayaabin Abraham-Joseph, in Atlanta this weekend. ICE alleges that he entered the U.S. legally in July 2015 when he was a minor, but subsequently failed to depart under the terms of his non-immigrant visa and became unlawfully present when his visa expired in 2016. He has been placed into removal proceedings before the federal immigration courts and is currently in ICE custody in Georgia.

https://www.cnn.com/2019/02/03/us/rapper-21-savage-arrest-ice/index.html

"Empire" Actor Jussie Smollett Attacked in Chicago

Smollett was targeted by two men in Chicago in what his family is calling a racial and homophobic hate crime. According to the actor, the men yelled racial and homophobic slurs, tied a rope around his neck, and poured a chemical substance on him before fleeing the scene.

https://www.nytimes.com/2019/01/29/arts/television/empire-jussie-smollett-attacked.html

Gwyneth Paltrow Sued for $3 Million in Alleged "Hit and Run" on Ski Slope

A Utah doctor is suing the actress over an alleged hit-and-run ski crash that took place three years ago. The plaintiff alleges that he broke four ribs and suffered a brain injury after Paltrow crashed into him while approaching him from behind, and that her actions were the product of carelessness and cruelty.

https://www.vulture.com/2019/02/gwyneth-paltrow-sued-for-usd3-million-in-ski-and-run-lawsuit.html

Bill Cosby Accuser Settles Defamation Suit with Former Prosecutor

Andrew Constand reached a confidential settlement in the defamation lawsuit against Bruce Castor. Castor was the former prosecutor in Bill Cosby's criminal sexual assault case. Constand claimed that comments he had made to explain his decision not to prosecute Cosby had hurt her reputation by depicting her as a liar.

https://www.nytimes.com/2019/02/01/arts/television/victim-of-cosby-sexual-assault-settles-suit-with-former-prosecutor.html

Thai Singer Apologizes for Wearing Swastika Shirt on Television

A member of Thailand's most popular girl band offered a tearful apology after wearing a swastika T-shirt to a televised rehearsal. Nazi imagery pops up with disturbing regularity in Asia, which critics attribute to a lack of knowledge or awareness of the horrors of the Nazi regime, and possibly prejudice.

https://www.nytimes.com/2019/01/28/world/asia/thailand-singer-swastika-nazis.html

ARTS

Opera Star David Daniels Arrested on Charges of Sexual Assault

Countertenor David Daniels and his husband were arrested in Michigan on a warrant from the Houston police. They have been charged with sexually assaulting a 23-year-old singer. Both face extradition to Texas.

https://www.nytimes.com/2019/01/30/arts/music/david-daniels-opera-sexual-assault.html

El Museo del Barrio Cancels Jodorowsky Show

New York City's El Museo del Barrio has cancelled a retrospective devoted to Chilean-born artist and filmmaker Alejandro Jodorowsky. The move came following an assessment of his remarks "regarding an act of sexual violence he perpetrated" on his co-star Maria Lorenzio, who Jodorowsky said he raped during the making of his 1970 film "El Topo".

https://www.nytimes.com/2019/01/28/arts/design/el-museo-del-barrio-cancels-jodorowsky-show.html

Young Adult Author Pulls her Debut Novel After Pre-Publication Accusations of Racism

Amelie Wen Zhao is pulling her young adult fantasy novel, Blood Heir, after readers raised objections over the novel's depiction of slavery. Her publisher, Delacorte Press, says that it supports her choice but did not urge her to cancel the book's June release. Children's book publishers have grown increasingly cautious when acquiring books that deal with charged subjects and now hire "sensitivity readers" to vet books and identify harmful stereotypes.

https://www.nytimes.com/2019/01/31/books/amelie-wen-zhao-blood-heir-ya-author-pulls-debut-accusations-racism.html

Singapore Weighs the Fate of its Brutalist Architecture

Brutalist landmarks in Singapore are on the verge of being sold to private developers and might face demolition. Architecture enthusiasts want to see the buildings protected under conservation laws, setting off a debate about whether this type of architecture is even worth saving. Some residents see them as important markers of national identity because they were designed by a generation of local architects who had their own take on the style, which evolved to reflect local sensibilities and a tropical climate.

https://www.nytimes.com/2019/01/27/world/asia/singapore-brutalist-buildings.html

SPORTS

National Football League Players Association Says Retiree Benefits Are a Priority

Executive Director DeMaurice Smith said that the union would push for more generous benefits for all retired players in the coming negotiations over the collective bargaining agreement. Though the union has long been criticized for not doing enough to improve pensions and health insurance for older retired players, more recently the president of the Pro Football Hall of Fame took a stand by refusing to attend the annual induction ceremony until all members of the Hall of Fame receive health insurance and a salary.

https://www.nytimes.com/2019/01/31/sports/nflpa-demaurice-smith.html

Missouri Vows to Appeal Stiff NCAA Penalties for Tutor's Academic Misconduct

The NCAA handed one-year postseason bans and other penalties to Missouri's football, baseball, and softball programs over academic misconduct. Tutor Yolanda Kumar told investigators that she had felt pressured to ensure that athletes passed certain courses and that she herself completed course work on their behalf.

https://www.foxsports.com/midwest/story/ncaa-hits-mizzou-with-stiff-penalties-for-tutors-academic-misconduct-013119

Florida High School Baseball Players Sue District Over Alleged Harassment

Two former Florida high school players have filed a negligence suit against their district and the school board. The players allege that they experienced bullying, harassment, hazing, racial slurs, and sexual depravity from their teammates, and that coaches did nothing to stop it.

https://abcnews.go.com/beta-story-container/US/high-school-baseball-players-sue-florida-school-district/story?id=60750498

Who Owns the Ironman? The Four-Decade Legal Fight Over the First Ironman Triathlon

The Ironman Triathlon puts on more than 260 races in 44 countries and is valued at nearly $1 billion. When the race ballooned in popularity, John Dunbar, the runner-up in the two original races, started selling copies of the original trophy and continues to assert his role and his rights in the birth of the event.

https://www.nytimes.com/2019/01/25/sports/ironman-original-lawsuit.html

Thailand Prosecutors Request to Extradite Detained Soccer Player to Bahrain

Thai prosecutors submitted a request for Thailand to extradite to Bahrain a detained soccer player who has refugee status in Australia. Hakeem al-Araibi was detained when he arrived in Bangkok for his honeymoon. Bahrain wants the player extradited to serve a 10-year prison sentence for vandalizing a police station. al-Araibi left Bahrain due to political repression and risks torture if he is sent back.

https://www.japantimes.co.jp/sports/2019/02/01/soccer/request-made-thai-court-send-detained-soccer-player-bahrain/#.XFSlHVxKiUk

MEDIA

U.S. Court Finds Syrian Government Liable in 2012 Death of American Journalist

The Syrian government was found liable in a Washington, D.C. civil trial for Sunday Times war reporter Marie Colvin's death. The suit, filed by Colvin's sister, accused Assad's regime of targeting Colvin by tracking her satellite calls before ordering an artillery strike on her media center. The judge ordered $302 million in damages for what she said was a targeted attack intended to intimidate journalists.

http://time.com/5518037/marie-colvin-syria-revolution-court/

Free Broadcast TV Streaming Service Locast Tests Legal Boundaries

Lawyer David Goodfriend has set up a streaming service that threatens to upend the media industry by making network programming available to subscribers via an app called Locast. The service launched in New York City in 2018 and has since added six other cities. By giving away TV, Locast is undercutting the licensing fees that major broadcasters charge cable and satellite companies, and is doing so as a non-commercial entity. The company insists that it operates under the copyright statute that allows non-profit translator services to rebroadcast local stations without receiving a copyright license from the broadcaster. Will its fate be similar to that of Aereo?

https://www.nytimes.com/2019/01/31/business/locast-streaming-free-network-tv.html

New York Settles with Company that Sold Fake Social Media Followers

Devumi, the firm that sold fake followers on social media platforms, has settled with the New York attorney general's office after an investigation found that its conduct violated the state's fraud and false advertising laws. Though the fine was only $50,000, the settlement is one of the first major efforts by regulators and law enforcement to investigate social media fraud.

https://www.nytimes.com/2019/01/30/technology/letitia-james-social-media-bots.html

Apple Paralyzes Facebook for Distributing a Research App that Monitored Online Activity

Facebook employees were unable to carry out basic work functions this week after Apple shut down Facebook's internal, custom built iPhone apps. The situation stemmed from Facebook breaching its agreement with Apple by publicly distributing a research app that was approved only for internal use and that allowed Facebook to monitor users' online activity.

https://www.nytimes.com/2019/01/31/technology/apple-blocks-facebook.html

Apple Slow to Act on FaceTime Bug that Allows Spying on Phones

New York state officials have opened a consumer rights investigation and others are raising questions about how long it took Apple to address a Group FaceTime bug that allowed iPhone users to hear through someone else's iPhone even if the person did not answer the call.

https://www.nytimes.com/2019/01/29/technology/facetime-glitch-apple.html

Tom Brokaw Apologizes for Comments About Hispanics and Assimilation

Former NBC Nightly News anchor Tom Brokaw apologized for comments he made on "Meet the Press" that Hispanics should "work harder at assimilation" into American culture. An alliance of Latino advocacy groups is calling on NBC to improve the diversity of bookings on "Meet the Press" and produce a series about the Hispanic community in the U.S. to address anti-Latino sentiment.

https://www.nytimes.com/2019/01/28/business/media/tom-brokaw-hispanics-assimilation.html

Russia's Playbook for Social Media Disinformation Has Gone Global

Twitter and Facebook have detected disinformation campaigns tied to various governments that follow a similar pattern to Russian efforts around the 2016 presidential election. The spread of these tactics is worrisome in a year when major elections are set to take place in India and Ukraine, among other countries.

https://www.nytimes.com/2019/01/31/technology/twitter-disinformation-united-states-russia.html

GENERAL NEWS

Intelligence Chiefs Contradict President Trump on North Korea and Iran

The annual Threat Assessment Report stressed the growing cyberthreats from Russia and China. It also contradicted President Trump on two major issues. First, it concluded that North Korea is unlikely to give up its nuclear stockpiles. Secondly, it found that Iran is not currently taking steps to make a nuclear bomb, undermining the president's assertion that Iran was contravening the 2015 nuclear agreement. The intelligence report also found that American trade policies and unilateralism have strained traditional alliances and prompted U.S. partners to seek new relationships.

https://www.nytimes.com/2019/01/29/us/politics/kim-jong-trump.html

President Trump Signs Executive Order Aimed at Helping U.S. Manufacturers

The Executive Order will push for federal dollars spent on infrastructure projects to be put toward American companies. The presidential guidance expects agencies to examine ways in which American resources can be directed toward American products and people. The order will recommend but not outright require that about $700 billion in federal financial assistance go toward American-manufactured products. It will
also seek to tamp down on waivers that agencies have used to bypass American products in favor of foreign-made ones.

https://www.nytimes.com/2019/01/31/us/politics/trump-executive-order-manufacturing.html

Senate Rebukes President Trump Over Middle East Troop Withdrawals

The Senate voted overwhelmingly to advance an amendment rebuking President Trump's decision to withdraw troops from Afghanistan and Syria. Majority leader Mitch McConnell drafted the amendment, warning that the precipitous withdrawal of U.S. forces could put at risk hard-won gains and national security. The amendment will likely pass next week as part of a bipartisan Middle East policy bill.

https://www.nytimes.com/2019/01/31/us/politics/senate-vote-syria-afghanistan.html

Senate Evidence Clarifies Mystery Calls Around Trump Tower Meeting

New evidence obtained by Senate investigators sheds light on whether President Trump knew that his son met with Russians offering information about Hilary Clinton in 2016. Phone records show that Don Jr. received calls from a blocked number around the time of the meeting, but that those calls were not from his father; rather, they were from two family friends who used blocked numbers.

https://www.nytimes.com/2019/01/31/us/politics/donald-trump-jr-blocked-number-calls.html

Senate Supports End to Sanctions on Firms Tied to Putin Ally

The Senate blocked a Democratic bid to keep the Treasury Department from lifting sanctions on three Russian companies linked to Oleg Deripaska. The Treasury Department had already decided to remove financial restrictions on the companies following an agreement that reduced Deripaska's ownership stakes.

https://www.bloomberg.com/news/articles/2019-01-16/democrats-lose-bid-to-keep-sanctions-on-deripaska-related-firms

Steven Mnuchin Faces Conflict of Interest Claims in Decision to Lift Sanctions on Russian Companies

Democrats in Congress raised ethical concerns about Treasury Secretary Mnuchin and his decision to lift sanctions on Russian oligarch Deripaska's companies. The potential conflict of interest arises from Mnuchin's personal and professional relationship with a billionaire Republican donor who is a major shareholder in one of the delisted companies and who stands to benefit financially from the decision.

https://www.nytimes.com/2019/01/29/us/politics/steven-mnuchin-russia-sanctions.html

U.S. Suspends Nuclear Arms Control Treaty with Russia; Russia Pulls out of Pact in Symmetrical Move

The Trump administration has suspended one of the last major nuclear arms control treaties with Russia. The 1987 pact, known as the Intermediate-Range Nuclear Forces, had banned ground-launched cruise missiles within a range of 500-5000 kilometers. The move comes after the U.S. accused Russia of violating the treaty with the development of a new missile. Critics say that the move has the potential to incite a new arms race, but the Trump administration is of the view that leaving the pact will allow the U.S. to counter the fear that China, not a signatory to the pact, has gained a significant military advantage. In response, Putin suspended Russia's observance of the pact and announced that Russia would build weapons previously banned under the treaty.

https://www.nytimes.com/2019/02/01/us/politics/trump-inf-nuclear-treaty.html

https://www.nytimes.com/2019/02/02/world/europe/russia-inf-treaty.html

U.S. and Taliban Agree in Principle to a Framework for Peace Deal

American and Taliban officials have agreed in principle to a peace deal that could lead to a full pullout of American troops in return for a cease-fire and Taliban talks with the Afghan government.

https://www.cnn.com/2019/01/28/politics/us-taliban-peace-negotiations-intl/index.html

U.S. Files Fraud Charges Against Chinese Tech Giant Huawei

The Justice Department unveiled charges against Chinese telecom firm and its chief financial officer, Meng Wanzhou, who the U.S. is seeking to have extradited from Canada. The indictments outline a decade-long attempt by the company to steal trade secrets, obstruct a criminal investigation, and evade economic sanctions on Iran.

https://www.nytimes.com/2019/01/28/us/politics/meng-wanzhou-huawei-iran.html

Trump Properties Continue to Fire Undocumented Workers

The president's company has terminated dozens of undocumented workers at its New Jersey, Philadelphia, and New York locations. The revelations about the company employing immigrants who are in the country unlawfully has been an embarrassment for the Trump Organization, given the President's stance on illegal immigrants, and the company has often claimed that employees used false documents to get their jobs.

https://www.nytimes.com/2019/01/26/us/trump-golf-club-fires-workers.html

https://www.nytimes.com/2019/02/01/us/trump-workers-fired.html

New York Legislature Passes First Major Gun Control Bills

New York lawmakers passed a comprehensive set of gun bills that include measures that would ban bump stocks, prohibit teachers from carrying guns in schools, and extend the waiting period for gun buyers who do not pass an instant background check.

https://www.nytimes.com/2019/01/29/nyregion/gun-laws-new-york.html

Virginia Governor, Ralph Northam, Defies Calls to Resign Over Racist Photo

Northam initially acknowledged that it was he in a yearbook photograph that surfaced showing two men, one wearing Ku Klux Klan robes and the other appearing in blackface. The governor is now denying that he is in the racist photo and has so far refused calls to resign.

https://www.nytimes.com/2019/02/02/us/politics/ralph-northam-virginia-governor.html

Pacific Gas and Electric Files for Bankruptcy After Billions in California Wildfire Claims

California's largest power company, Pacific Gas and Electric, has filed for Chapter 11 bankruptcy after being pursued for billions of dollars in damage claims. The company was linked to a series of wildfires in California, including the Camp Fire, which caused 86 deaths and destroyed 14,000 homes. It now needs to use the bankruptcy process to shed some of its debt, pay for $7 billion in damages, and stay in business.

https://www.nytimes.com/2019/01/29/business/energy-environment/pge-file-bankruptcy.html

Speaking Black Dialect in Courtrooms Can Have Striking Consequences

A soon-to-be published study found that court reporters in Philadelphia regularly made errors in transcribing sentences that were spoken in a dialect that linguists term African-American English. The findings could have far-reaching consequences as errors or misinterpretations in courtroom transcripts can impact the official court record in a way that is harmful to defendants.

https://www.nytimes.com/2019/01/25/us/black-dialect-courtrooms.html

Elite Law Form's All-White Partner Class Stirs Debate on Diversity in Big Law

A LinkedIn post announcing the latest class of partners at Paul, Weiss prompted social media criticism over its overwhelmingly white, male profile. In an open letter, general counsels at major companies called on large firms to reflect the diversity of the legal community or they would send their business elsewhere. Paul, Weiss has since released a statement that it regrets the gender and racial imbalance of its 2019 class, and that the class was an outlier.

https://www.nytimes.com/2019/01/27/us/paul-weiss-partner-diversity-law-firm.html

Davos Elites Express Fears About Mentoring Women in the Age of #MeToo

In an unintended consequence of the #MeToo movement, companies are seeking to minimize the risk of sexual harassment and misconduct seem to be minimizing contact between female employees and male executives, effectively depriving women of valuable mentor opportunities.

https://www.nytimes.com/2019/01/27/world/europe/metoo-backlash-gender-equality-davos-men.html

Charles Hynes, Former Brooklyn District Attorney, Dies at 83

Hynes spent 24 years as Brooklyn district attorney and won praise for his approach to public corruption and nonviolent drug cases.

https://www.nytimes.com/2019/01/30/obituaries/charles-j-hynes-dies.html

Iran Takes an Interest in Bitcoin in Effort to Undermine U.S. Sanctions

Transactions in Bitcoin could allow Iranians to make international payments and bypass banking restrictions brought on by U.S. sanctions. Certain Iranian industries, including mining, are relying on these transactions because they are difficult to trace and can be made anonymously. In response, the U.S. Treasury has warned digital marketplaces that buy and sell Bitcoin that they should not provide services to Iranian clients.

https://www.nytimes.com/2019/01/29/world/middleeast/bitcoin-iran-sanctions.html

Pakistani Court Upholds Blasphemy Acquittal of Christian Woman

Pakistan's Supreme Court upheld the acquittal of Asia Bibi, a Christian woman who spent years eight years on death row after she was accused of insulting Islam's prophet in 2009. Islamists in the country had filed a petition calling for her execution. Bibi is expected to join her daughters who were granted asylum in Canada

https://www.nytimes.com/reuters/2019/01/29/world/asia/29reuters-pakistan-blasphemy.html

How Cold Weather and Climate Change are Connected

A popular question seems to be that if global warming is occurring, why are we being subjected to harsher winter weather? In a series of reports, The New York Times takes a global view and unpacks a number of studies linking climate change to extreme weather.

https://www.nytimes.com/2019/01/30/climate/climate-fwd-cold-weather-dvr.html

Government Inquiry Exposes Widespread Bribery Among South Africa's Leaders

South Africa's senior ruling politicians, including former President Zuma, have been publicly accused of taking bribes as the commission of inquiry on state corruption continues to hear from key witnesses. The chief operating officer of a South African logistics company has provided the most explosive testimony about cash bribes given to senior officials to secure government contracts.

https://www.nytimes.com/2019/01/29/world/africa/south-africa-anc-corruption-bribes.html

Theresa May Survives Critical Brexit Vote

British Prime Minister May survived a critical vote in Parliament that could have delayed Brexit and undermined her strategy for leaving the European Union. Legislators failed to approve an amendment that would have given Parliament the power to instruct her to essentially postpone the March 29th Brexit if there is no agreement on a Brexit plan.

https://www.nytimes.com/2019/01/29/world/europe/brexit-vote.html

Opposition Leader and Oil Become Focus of Venezuela - U.S. Diplomatic Struggle

The Trump administration imposed sanctions on Venezuelan state oil company PDVSA, which the U.S. considers to be a vehicle for embezzlement for President Maduro's regime. President Trump also threw his support behind opposition leader Juan Guaido earlier this week. As Venezuelans try to gauge the full impact of the sanctions and are wary of how they might affect their already limited access to basic goods, Maduro's opponents believe the restrictions will hasten Maduro's exit.

https://www.nytimes.com/2019/01/29/world/americas/venezuela-juan-guaido-oil-assets.html

https://www.nytimes.com/reuters/2019/01/30/world/americas/30reuters-venezuela-politics-pdvsa-gasoline.html

Chinese Human Rights Lawyer Sentenced to 4.5 Years in Prison

The lawyer was found guilty of "subversion of state power" and is the latest to be prosecuted among hundreds of legal activists who were arrested during the 2015 government crackdown of individuals it believes were organizing political challenges to Xi Jinping's regime.

https://www.nytimes.com/2019/01/28/world/asia/china-wang-quanzhang-human-rights.html

Center for Art Law Case Law Updates

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

Schmitt v. Artforum Int'l Magazine, Inc., 2018 Slip Op 33345(U) (N.Y. Sup. Dec. 20, 2018). The New York Supreme Court has dismissed Amanda Schmitt's retaliation claim (https://www.google.com/url?q=https://itsartlaw.us2.list-manage.com/track/click?u%3D78692bfa901c588ea1fe5e801%26id%3D5b9147accf%26e%3D8a2eda70d8&source=gmail&ust=1549377238751000&usg=AFQjCNGbFmbVpMIT_XQGYofsZw1mWDCxSw) against her former employer and publisher of Artforum Magazine, Knight Landesman. Schmitt claimed that Landesman had harassed her and other women while working at the magazine. However, the statute of limitations on workplace sexual misconduct had expired and Schmitt proceeded under a retaliation claim. Judge Nervo nevertheless dismissed the case, finding that the five-year gap between Schmitt's employment at Artforum to the confrontation in question had removed the requisite nexus to sustain her claim. https://law.justia.com/cases/new-york/other-courts/2018/2018-ny-slip-op-33345-u.html?utm_source=Center+for+Art+Law+General+List&utm_campaign=5b56733dfc-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-5b56733dfc-346773625

De Csepel, et al. v. Republic of Hungary, et al., No. 17-1165 (U.S. Jan. 7, 2019). On January 7, 2019, the Supreme Court of the United States denied (https://www.supremecourt.gov/DocketPDF/17/17-1165/74114/20181204152445106_17-1165%20De%20Csepel.pdf?utm_source=Center+for+Art+Law+General+List&utm_campaign=4a99c9828a-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-4a99c9828a-&mc_cid=4a99c9828a&mc_eid=%5bUNIQID%5d&utm_source=Center+for+Art+Law+General+List&utm_campaign=5b56733dfc-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-5b56733dfc-346773625&mc_cid=5b56733dfc&mc_eid=8a2eda70d8) the Herzog family's petition for certiorari, which proposed that the Supreme Court examines questions of jurisdiction (http://www.dailyjournal.net/2019/01/07/us-supreme-court-hungary-art-lawsuit/?utm_source=Center+for+Art+Law+General+List&utm_campaign=4a99c9828a-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-4a99c9828a-&mc_cid=4a99c9828a&mc_eid=%5bUNIQID%5d&utm_source=Center+for+Art+Law+General+List&utm_campaign=5b56733dfc-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-5b56733dfc-346773625&mc_cid=5b56733dfc&mc_eid=8a2eda70d8). The Herzogs are heirs of Baron Mor Lipot Herzog, a Jewish art collector, whose artwork was stolen during WWII. The heirs have been unsuccessfully attempting to reclaim the works from Hungary.

Lehman Maupin v. Yoo, No. 1:18-cv-11126 (S.D.N.Y. filed Nov. 29, 2018). The Lehmann Maupin Gallery filed suit against its former director, Bona Yoo, who jumped ship to join Lévy Gorvy after giving her employer one day's notice. The complaint seeks to "prevent Yoo from gaining an unfair competitive advantage and recover damages it says it incurred when Yoo corrupted or deleted confidential information." The updated complaint is available upon request.

U.S. v. Mary Boone, No. 1:18-cr-00634 (S.D.N.Y. filed May 9, 2018). Mary Boone, the New-York based art dealer who pleaded guilty in September to two counts of tax fraud, is now seeking leniency because of "childhood trauma". The prosecution nonetheless seeks a three-year-sentence (https://news.artnet.com/art-world/mary-boone-tax-fraud-trial-1438561?utm_source=Center%20for%20Art%20Law%20General%20List&utm_campaign=5b56733dfc-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-5b56733dfc-346773625&mc_cid=5b56733dfc&mc_eid=8a2eda70d8). Sentencing was initially scheduled for January 18th, but has been postponed to February 14, 2019.

Dawson v. Stoko Gallery LLC, No. 1:2019cv00824 (S.D.N.Y. filed Jan. 28, 2019); Dawson v. Sperone Westwater Gallery LLC, No. 1:2019cv00825 (S.D.N.Y. filed Jan. 28, 2019); Dawson v. Pace Editions, No. 1:2019cv00681 (S.D.N.Y. filed Jan. 23, 2019). Deshawn Dawson filed more than 23 lawsuits before the Southern District of New York against various galleries in the last month (https://hyperallergic.com/482319/more-than-75-new-york-galleries-hit-with-lawsuits-alleging-ada-violations/?fbclid=IwAR0jIiYgOYMQ169rJJ089OhVhRvnM70dr4r8_cGG3nutW2IKY1EdQ2WoGOI&utm_source=Center+for+Art+Law+General+List&utm_campaign=4a99c9828a-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-4a99c9828a-&mc_cid=4a99c9828a&mc_eid=%5bUNIQID%5d&utm_source=Center+for+Art+Law+General+List&utm_campaign=5b56733dfc-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-5b56733dfc-346773625&mc_cid=5b56733dfc&mc_eid=8a2eda70d8), alleging that they have violated the Americans with Disabilities Act by failing to make their websites accessible to blind or visually impaired people. Apparently, these websites lack a code that would enable screen-reading software in browsers to describe images via audio translation.

*Erratum (newsletter June 2018): Shagalov v. Edelman, 6449N 655576/17 (N.Y. App. Div. May 3, 2018). The New York State Appellate Division affirmed a lower court order granting a preliminary injunction to enjoin defendants Asher Edelman et al. from "transporting, transferring, disposing, alienating, pledging, assigning, or otherwise encumbering or moving Keith Haring's 'Untitled (March 5, 1984)' and Frank Stella's 'Guifa E La Berretta Rossa' and 'La Scienza della Fiacca.'" The plaintiffs, represented by Barton, LLP, successfully demonstrated that they would be "irreparably harmed absent the requested preliminary injunction" and met their burden of "establishing a reasonable probability of success on the merits of their claim that defendants violated their UCC Article 9 rights." (https://www.law.cornell.edu/ucc/9?mc_cid=1828a75f39&mc_eid=88512bac9d) The decision is available here https://www.courtlistener.com/opinion/4494991/shagalov-v-edelman/?mc_cid=1828a75f39&mc_eid=88512bac9d.

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February 10, 2019

Week In Review

By Eric Lanter
Edited by Elissa D. Hecker

Below, for your browsing convenience, the categories are divided into: Entertainment, Arts, Sports, Media, and General News:

Entertainment

Rapper 21 Savage Arrested by Immigration and Customs Enforcement Agents

On Sunday,agents of Immigration and Customs Enforcement arrested 21 Savage, a rapper from England. According to his attorney, 21 Savage, named She'yaa Bin Abraham-Joseph, arrived in the United States at age seven and has stayed in the country since then except for a one-month period in 2005. He re-entered the country on an H-4 visa, but the visa expired in 2006, and he has not left the United States since then. He is one of the highest profile immigration detainees, and a petition asking for his release has already gathered over 200,000 signatures.

https://www.nytimes.com/2019/02/06/arts/music/21-savage-ice-atlanta-rapper.html

Scouring Hollywood's Background, Before Someone Else Gets There First

In the age of celebrities being named for presenter roles, such as hosting the Oscars, only to be pulled from the roles when their pasts are scoured and prejudiced or discriminatory comments resurface, a new company, Foresight Solutions, now offers to scrutinize the backgrounds of such figures as part of the hiring process. Some view it as a logical step in Hollywood, but others see it as an "overly intrusive" service.

https://www.nytimes.com/2019/02/04/business/media/-celebrity-backgrounds-media-relations.html

Arts

Landmark Broadway Deal Gives Actors a Piece of the Profits

A groundbreaking agreement was reached on Friday between commercial producers and the actors and stagehands in Broadway shows: one percent of a Broadway show's profits will now go to actors and stage managers who were involved in the development of the show with the producers. The profit-sharing lasts for ten years and also includes profits from productions that go on tour. It is the first time that financiers have acknowledged that "performers are contributing ideas, not just labor, to shaping new musicals and plays."

https://www.nytimes.com/2019/02/08/theater/broadway-profit-sharing.html?action=click&module=Well&pgtype=Homepage§ion=Arts

The Museum of Modern Art to Close and Reopen with More Expansive View of Art

The Museum of Modern Art (MoMA) is set to close for four months this summer and undergo a $400 million overhaul. The renovation will result in a reconfiguration of the galleries and a 40,000 square foot addition to the museum that will bring more attention to women, Latinos, Asians, African-Americans and "other overlooked artists". Its last renovation was in 2004, when it temporarily moved to a space in Queens for two years, and because the planned renovation this year is set to last four months, MoMA has opted to close for that time period rather than to relocate.

https://www.nytimes.com/2019/02/05/arts/design/moma-museum-renovation.html

Anti-Sackler Opioid Activists Take Fight to Guggenheim, Metropolitan Museum of Art

On Saturday, dozens of protesters stormed the Guggenheim museum and brought leaflets raining down in the central rotunda. The leaflets contained the words of Richard Sackler, who was the president of Purdue Pharma (Purdue), the creator of the drug OxyContin, when he said that the industry must target abusers "in every way possible." Those words were in a 2001 email that recently surfaced in an ongoing lawsuit in Massachusetts, which alleges that Purdue and its owners "profited by misleading those who prescribed and took the drug about its potential dangers." At the Guggenheim sits the Sackler Center, a gift from the family of Mortimer Sackler, one of the owners of Purdue until his death in 2010. After leaving the Guggenheim, the protesters made their way down Fifth Avenue to the Metropolitan Museum of Art (Met), which has its own Sackler wing. The wing opened in 1978 and was funded by Sackler brothers Arthur, Raymond, and Mortimer. Activists shouted on the front steps of the Met, with one noting, "We're here to call out the Sackler family, who has become synonymous with the opioid crisis."

http://www.artnews.com/2019/02/10/nan-goldin-sackler-protest-met-museum-guggenheim/

Architects Wanted: Design These Odd Lots

The Department of Housing Preservation and Development has announced that it is beginning a design competition for architects to submit ideas of how to develop affordable housing on 23 "small, irregular lots" spread throughout New York City. The program, called Big Ideas for Small Lots NYC, will bring designs to the city to fill lots "as narrow as 13 feet wide, with areas as small as 1,008 square feet." In all, the city and its agencies own over 1,015 acres of vacant land, and this program is only a portion of it, but is expected to have "an outsize effect on neighborhoods."

https://www.nytimes.com/2019/02/04/realestate/architects-wanted-design-these-odd-lots.html

Egypt Unveils Dozens of Newly Discovered Mummies

The Egyptian Ministry of Antiquities announced the discovery of dozens of mummies from the Ptolemaic era, and the government is set to announce additional sites where antiquities have been uncovered. One analyst viewed the announcement of the finds as an attempt to encourage tourism in Egypt, which has suffered since the Arab Spring revolution in 2011, and noted that one of the biggest issues the country has is maintaining the antiquities.

https://www.nytimes.com/2019/02/04/arts/mummies-discovered-egypt.html

Nuremberg Prosecutor Seizes 63 Hitler Works From Auction House on Forgery Suspicions

A Nuremberg prosecutor has moved to seize 63 paintings, watercolors, and drawings that are attributed to Adolf Hitler and were being prepared to be sold at Auktionshaus Weidler. The prosecutor's press officer has said that there is a suspicion that the works are forgeries. There were five works not seized that were attributed to Hitler and thought to be genuine. Selling such works is not illegal in Germany unless those works contain Nazi symbols, but prosecutors are working to identify who may have "knowingly introduced forged works into the market."

https://www.theartnewspaper.com/news/nuremberg-prosecutor-seizes-63-hitler-works-from-auction-house-on-forgery-suspicions

Sports

Family of Fan Killed by Foul Ball Calls for More Safety

In August 2018, a fan at Dodger Stadium in Los Angeles was struck by a ball and died from a traumatic head injury four days later. Since then, her family has lobbied for higher nets at the stadium to permit the trajectories of foul balls to be more manageable to catch. The death of the fan, Linda Goldbloom, came during the "first season in which all 30 stadiums in Major League Baseball had netting" extending "to the far edge of each dugout." Major League Baseball has defended the safety of its ballparks, citing the increase of "inventory of protected seats". However, it conceded that teams were "constantly evaluating the coverage and design of their ballpark netting."

https://www.nytimes.com/2019/02/05/sports/dodgers-fan-killed-foul-ball.html

Cubs Family Patriarch Apologizes for Racist Emails

Joe Ricketts, the patriarch of the family that owns the Chicago Cubs, has come under fire for comments he made in emails. These include Islamophobic comments, such as "Islam is a cult and not a religion." He also supported "conspiracies about former President Barack Obama's birthplace and education." Ricketts, the founder of TD Ameritrade, has apologized for the emails and said that they did not reflect his value system.

https://www.nytimes.com/aponline/2019/02/05/us/ap-us-offensive-emails-joe-ricketts.html

Ex-Penn State Assistant Coach Sandusky Gets New Sentencing

The former Penn State assistant football coach Jerry Sandusky is set to attend a resentencing hearing seven years after being convicted of child molestation and sentenced to 30-60 years in jail. A Pennsylvania Superior Court has ruled that his sentence "included the improper application of mandatory minimums," and although Sandusky's attorney sought a new trial, the appeals panel struck down all of the arguments except for the resentencing.

https://www.nytimes.com/aponline/2019/02/05/us/ap-us-penn-state-abuse.html

Media

Attacking a Pay Wall That Hides Public Court Filings

A lawsuit is pending in the Southern District of New York that is challenging the federal judiciary's Pacer system for accessing documents. Although the cost of accessing court documents is estimated to cost "one half of one ten-thousandth of a penny per page," the system charges 10 cents a page for "electronic access to what are meant to be public records." The lawsuit has alleged that the fees are used as a "slush fund," leading the judicial system to use the money "to buy flat-screen televisions for jurors, to finance a study of the Mississippi court system, and to send notices in bankruptcy proceedings."

https://www.nytimes.com/2019/02/04/us/politics/pacer-fees-lawsuit.html

General News

In State of the Union, Trump Asks for Unity but Presses Hard Line

In the State of the Union, President Trump delivered a message calling for unity in Congress and government. He followed the message of unity with a call to come together behind his "hard-line immigration policies that have polarized the capital and the nation," including the funding and building of a wall along the southern border with Mexico. While the State of the Union address was filled with the political theater that has come to characterize the speech, such as commemorating heroes, the audience had changed from years past: there were more Democrats and women than during any of President Trump's previous speeches to Congress. More controversially, while Trump did not refer specifically to the probe led by Robert S. Mueller III, he called for an end to "foolish wars, politics or ridiculous partisan investigations" as they endanger the flourishing economy.

https://www.nytimes.com/2019/02/05/us/politics/trump-state-of-the-union.html

Virginia Political Crisis Grows for Democrats and Republicans

Virginia's political leaders are facing a crisis: Governor Ralph Northam apologized for being in a photograph showing one person in a Ku Klux Klan outfit and a second person wearing blackface but then reversed course and said that he was not in the picture, Lieutenant Governor Justin Fairfax has been accused of sexually assaulting multiple women in the past, Attorney General Mark Herring has admitted that he once wore blackface, and the majority leader in the State Senate Thomas Norment has admitted that he was the top editor of a yearbook that had several racial slurs and photographs of students in blackface. None of the four officials has resigned his office, but the calls for resignation and impeachment have been growing and are expected to come to a head.

https://www.nytimes.com/2019/02/07/us/virginia-governor-scandal.html

https://www.nytimes.com/2019/02/08/us/politics/virginia-scandal.html?action=click&module=Top%20Stories&pgtype=Homepage

Trump Inaugural Committee Ordered to Hand Over Documents to Federal Investigators

Prosecutors have subpoenaed President Trump's inaugural committee asking for all "documents about donors, finances and activities." The subpoenas indicate that investigators are focusing on whether foreign nationals "illegally donated to the committee," and "whether committee staff members knew that such donations were illegal." The requests are just the latest investigation into the Trump campaign and presidency that have touched nearly all aspects of his adult life including "his business, his campaign, his inauguration and his presidency."

https://www.nytimes.com/2019/02/04/us/politics/trump-inaugural-committee-subpoena.html

Trump Chooses David Bernhardt, Former Oil Lobbyist, to Head Interior Department and David Malpass, Critic of World Bank, as Head of World Bank

President Trump has appointed two individuals to lead organizations of which those individuals have been most critical: David Bernhardt, a former oil lobbyist, is set to take the reins at the Department of Interior and David Malpass, a critic of the World Bank, will become the head of that organization. The vacancy at the Department of Interior came after Ryan Zinke faced extensive investigation and allegations of ethical violations, and the open position at the World Bank came after Jim Yong Kim, the previous president, announced he was resigning from the post three years before his term expired. Both Bernhardt and Malpass have endeared themselves to the Trump administration and are expected to carry out Trump's policies at both organizations.

https://www.nytimes.com/2019/02/04/climate/david-bernhardt-interior-zinke.html

https://www.nytimes.com/2019/02/06/us/politics/david-malpass-world-bank.html

Trump Seeks to Reassure Allies on ISIS Fight as Syria Withdrawal Looms

Facing significant backlash after his decision to withdraw troops from Syria, including from military generals that have warned of dire effects resulting from the pullout, President Trump has attempted to reassure the country and its allies that the administration would continue fighting ISIS "for many years to come." The Trump administration has also announced that it is planning a withdrawal from Afghanistan pending negotiations with the Taliban. However, his comments this week are a reversal from those he made in December about ISIS being already defeated, and he has left a question as to what role, if any, American troops will have in Iraq following the planned withdrawals in the region.

https://www.nytimes.com/2019/02/06/world/middleeast/trump-allies-isis-syria.html

Amazon Deal Meets New Resistance as Cuomo and State Senate Clash

The State Senate has chosen Senator Michael Gianaris of Queens to represent them on a state board that is expected to have a vote on approving or rejecting the development plan that would bring Amazon's second headquarters to New York City. The plan has faced increasing resistance and may be in danger of falling through, but Governor Andrew Cuomo has vowed to fight for the $3 billion deal, as he has consistently argued that it will serve as a boost to the economy. In a recent City Council hearing, Amazon executives faced "intense criticism" and indicated that Amazon may "reconsider its commitment to New York."

https://www.nytimes.com/2019/02/04/nyregion/amazon-hq2-board-veto.html

https://www.nytimes.com/2019/02/05/nyregion/michael-gianaris-amazon.html

European Countries Recognize Guaido as Venezuela's Leader

Countries throughout Europe, including Austria, Great Britain, Denmark, France, Germany, Spain, and others have joined the United States, Canada, Australia, and much of Latin America in recognizing Juan Guaido as the legitimate leader of Venezuela. The recognition strikes a blow at the fragile regime in place under President Nicolas Maduro, which won re-election last year, despite the "collapsing economy, endemic corruption and repression" that the country has faced. His opponents and international vote watchers saw the election as "heavily rigged," and a group of European countries had called the previous week for Maduro to schedule "a new, free and fair presidential election." When he did not follow through, their recognition of Guaido became official.

https://www.nytimes.com/2019/02/04/world/americas/venezuela-juan-guaido.html

Rights Group Seeks United Nations Inquiry Into China's Mass Detention of Muslims

The United Nations Human Rights Council is facing pressure to investigate China's policy of detaining Muslims in the western region of Xinjiang en masse under the pretense that it is done to crackdown on the threat of terrorism. Officials have "banned beards, religious instruction of children and even the granting of names with religious connotations to children," but the mass detention of individuals goes further by forcing the Muslims to abandon their religion and culture altogether. The Chinese government has said that the allegations of abuse and mass detentions are politically motivated as the camps are "vocational training centers designed to improve the economic prospects and living standards of China's minorities."

https://www.nytimes.com/2019/02/04/world/asia/un-xinjiang-uighurs-china.html

Nobel Winner Accused of Assault by Fourth Woman in 48 Hours

The former president of Costa Rica and winner of the Nobel Prize in 1987 for his work in bringing peace to Central America, Oscar Arias Sanchez, is now facing accusations of sexual assault. Throughout Latin America, Arias was a respected figure, but a formal criminal complaint was filed four years ago against him alleging that he sexually assaulted her. Now, a total of four women have come forward with allegations of sexual assault, all of which Arias has "categorically" denied, "saying that he never acted in a way that disrespected the will of any woman."

https://www.nytimes.com/2019/02/06/world/americas/oscar-arias-sexual-assault-costa-rica.html

February 12, 2019

PACER Fees - Class Action Update

By Barry Skidelsky, Esq.
Chair, NYSBA Entertainment, Arts and Sports Law Section
bskidelsky@mindspring.com or 212-832-4800

You might be interested to know (if you don't already) that in National Veterans Legal Services Program v. United States, the United States Court of Appeals for the Federal Circuit is currently considering whether the federal government violates the E-Government Act of 2002, when it charges fees to access federal court documents that exceed the marginal cost of providing those documents.

The costs for providing digital copies of those court documents are arguably close to, if not at, zero. Query the possible utility of that nominal cost argument to other matters, such as those involving digital copies of media and entertainment files. In any event, various party and amici briefs were recently filed in this appeal, including an amicus brief from several judges who are expressly neither for nor against the plaintiffs. Oral argument has yet to be scheduled.

The Public Access to Court Electronics Records (PACER) system is a decentralized system of electronic judicial-records databases. Under federal law, the government is permitted to charge people fees to access records on PACER. Today, those fees are set at 10 cents per page (with a maximum fee of $3.00 per record) and $2.40 per audio file.

In April 2016, three nonprofit organizations - National Veterans Legal Services Program, National Consumer Law Center, and Alliance for Justice - filed a class action complaint in the U.S. District Court for the District of Columbia, alleging that today's PACER fees violate federal law because the fees charged exceed the government's costs of providing federal court documents on PACER.

In March 2018, the district court agreed (https://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2016cv00745/178502/105/), ruling that PACER fees violate the E-Government Act of 2002. The government appealed to the U.S. Court of Appeals for the Federal Circuit.

Amici briefs filed in support of the plaintiffs generally agree that the government's practice of charging fees that exceed the costs of providing access to these court documents is at odds with the text and history of the E-Government Act, as well as contrary to Congress' intent in passing that federal law. Under 28 U.S.C. § 1913 the government is allowed to charge fees "only to the extent necessary" "to reimburse expenses incurred in providing [PACER records-access] services."

Plaintiffs and their supporters elaborate not only that PACER fees today are higher than the marginal cost of disseminating the information, but also that some of these fees are used to fund projects or services other than providing document access on PACER, and federal law prohibits imposition of PACER fees to fund them.

They further argue that excessively high PACER fees impose a serious financial barrier to members of the public who wish to access court records, and these fees thereby create a system in which rich and poor do not have equal access to important government documents. Recognizing both the inequity of such a system and the importance of public access to court documents, they note that Congress wrote the relevant statutory language to include the phrase limiting fees "to the extent necessary" thus intending to make this information freely available to the greatest extent possible.

Makes sense to me.

Sports Wagering in New York: What Can New York Learn from the 2018 New Jersey Experience?

Bennett Liebman
Government Lawyer in Residence, Government Law Center, Albany Law School

When New York Governor Andrew Cuomo's proposed budget for the New York State 2019-2020 fiscal year was announced last month, it was accompanied by the news that the state's four upstate private casinos would be authorized to take sports wagers. Sports wagering would be authorized once the state's Gaming Commission finalizes its rules governing the subject.

The Gaming Commission took the first steps to promulgating these rules at its January 28, 2019 meeting, where it gave first passage to the sports wagering rules. These rules are now subject to the public comment and publication procedures established under the State Administrative Procedures Act. Final passage of such rules would be expected to come in mid-spring, and sports wagering would need to be approved at each facility.

Who Gets Sports Betting in New York?

Sports wagering was authorized for the commercial casinos under the Upstate NY Gaming Economic Development Act, which passed in 2013 as the accompanying legislation to the state's Constitutional amendment authorizing casino gambling. The 2013 legislation authorized sports wagering at casinos if federal legislation banning sports gambling was either amended or found to be unconstitutional. In May of 2018, the United States Supreme Court struck down the Professional and Amateur Sports Protection Act of 1992, which had banned sports gambling in most of the United States, outside of Nevada. Based on this decision, the states of Rhode Island, Delaware, Mississippi, New Jersey, Pennsylvania, New Mexico, and West Virginia all began sports gambling in 2018. New York State did not need new authorizing legislation, since the 2013 legislation already legalized sports wagering.

The four private casinos in upstate New York that could be licensed to conduct sports wagering are del Lago in Seneca County, Rivers in Schenectady County, Resorts World Catskills in Sullivan County, and Tioga Downs in Tioga county. Besides the four privately owned casinos, there is the potential -- depending on the wording of the individual compacts -- for the New York tribes with casinos; the Seneca, Oneida, and St. Regis Mohawks, to operate sports wagering facilities at their casinos. Currently, there are seven tribal casinos in New York State, with the Oneidas and the Senecas running three apiece.

The New Jersey 2018 Experience

The experience in New Jersey should be instructive as to how the casinos in New York might fare. It is a neighboring state in the Mid East Coast region, which made the full dive into sports gambling in 2018. New York sports gamblers could reasonably travel and bet at the New Jersey facilities at the Meadowlands Racetrack and at Monmouth Park. New Jersey began sports wagering in June of 2018 and has sports wagering onsite at two racetracks and at seven of the nine Atlantic City casinos. Five of the casino licensees and the two racetrack licensees offer sports wagering to New Jersey residents through the Internet.

The 2018 calendar year numbers for New Jersey show sports wagering gross revenues of $94 million for a period of 6 ½ months. (This revenue is somewhat overstated, since New Jersey currently considers gross sports wagering revenues as including the gross dollar amount of wagers subtracted by payouts to bettors. Thus, wagers placed in 2018 on future sports events, such as those placed on the 2019 Super Bowl, would be considered 2018 gross revenue. The actual revenue on completed sports events in New Jersey in 2018 was $72 million.)

The tax revenue return to New Jersey from sports wagering in calendar year 2018 was $10.4 million. Using the December 2018 monthly numbers (which are more reflective of a more mature market and assuming based on Nevada sports wagering numbers that December wagering constitutes about 11% of annual sports wagering handle), the anticipated annual New Jersey tax revenue would be $21.8 million. The tax revenue numbers ought to be considered a disappointment. New Jersey officials have been using the number of $100 million as the estimated tax revenue from sports wagering for more than a decade, well before any thought had been given to the potential of Internet sports wagering. A $20 million number is hardly what was anticipated. While there clearly is room to grow, it is a long way from $100 million.

Sports wagering constituted 3.2% of the general casino wagering market in New Jersey for 2018. In Nevada, where sports wagering revenues increased by more than 20% in 2018, it only constitutes 2.5% of casino revenue.

62.5% of New Jersey's sports wagering handle in 2018 was placed through the Internet. In order to place a legal Internet wager, the bettor needs to be physically situated in New Jersey. In December of 2018, the percentage of Internet bets reached 75.5%. The Internet sites in New Jersey did not begin operation until August, with all sites in operation by the commencement of the National Football League season in the first week of September. It is certainly likely that in the future, the Internet handle will continue to be at least 3/4 of the total sports wagering handle. Starting in December of 2018, Pennsylvania began its sport wagering operation. Thus, bettors in the Philadelphia area no longer needed to travel to the to the Atlantic City casinos to place legal sports wagers.

Of the on-site gambling, much of it was conducted at the Meadowlands Racetrack, the site closest to New York City. In December of 2018, 58% of the on-site sports wagering wins were at the Meadowlands. 16.7% was at Monmouth Park in Oceanport, New Jersey, leaving 25.3% to be shared by the seven Atlantic City casinos that conduct on-site sports gambling. Using the December 2018 sports wagering statistics as the basis for an annual projection for sports wagering revenue, on-site sports wagering annual revenue in New Jersey would be $14 million for the Atlantic City casinos, $9.3 million for Monmouth Park, and $32 million for the Meadowlands.

Lessons for New York

The obvious lesson for New York is to not anticipate much revenue for the casinos from sports gambling. The New Jersey onsite numbers are not particularly encouraging, and the New Jersey sites are generally in more populated areas than the four upstate casinos. Tioga Downs is in a rural area on the Pennsylvania border. Pennsylvania now has Internet wagering on sports. There is little reason to expect much sports gambling revenue there. The same should hold true for del Lago, which is located between Syracuse and Rochester. It is not a big population center, and if the Senecas and the Oneidas Nation offer sports wagering, del Lago could find itself in a difficult commercial environment.

Rivers Casino would not have much nearby competition, but it is not in a more desirable location than Monmouth Park in New Jersey, or Charles Town in West Virginia, both of which are doing modest in-person sports wagering business. Monmouth Park, as stated previously, could be presumed to have in-person sports gambling revenue of less than $10 million. Assuming that Rivers did bring in that much revenue, it would increase its current total gaming revenue by about 6% or 7%. It would be helpful, but not a game changer.

Resorts Worlds Catskills would be the closest sports wagering facility in New York to the New York City market, and it would have good access to the northern suburbs of New York City. However, it would compete with the Meadowlands for in-person gambling, and the Catskill region has proven a disappointing area, thus far both for video lottery gambling and for casino gaming. It could potentially perform better than Rivers, but it is unlikely to do much better than that.

The Seneca Nation has the best opportunity for in-person sports wagering. It has the greatest exposure to a population center, with a facility in downtown Buffalo. Its Niagara Falls facility is on the Ontario border and ought to be able to attract Ontario sports bettors as well. Currently, Ontario sports bettors only can legally wager on sports through the Pro-Line lottery offered through the Ontario Lottery and Gaming Corporation, which offers only parlay wagers and less than desirable odds. The Niagara Falls casino could attract Ontario sport bettors.

The Mohawk Akwesasne Mohawk Casino, operated by the St. Regis Mohawks, is near the Canadian border in northern Franklin County. While it is close to a potential sports betting market in Canada served by the sub-optimal Pro-Line game, it is basically not near any area that can be considered a center of population. Unless people will drive about an hour and a half from Ottawa, there ought to be limited St. Regis Mohawk revenue from sports betting.

The three Oneida Nation gambling properties are between Utica and Syracuse. Again, this is hardly the most desirable environment for sports gambling. The most interesting issue is whether the Oneida Nation will take wagers on games played by Syracuse University. New York law bans the private commercial casinos from taking bets on New York university and college sports teams, but the tribes would not be bound by this rule. If the Oneidas take wagers on Syracuse games, they could potentially have a market for sports betting in New York.

Tax Revenue in New York

If one optimistically assumes that the four commercial casinos in New York would bring in at most $25 million in sports gambling revenue, the tax revenues to the state-- with a tax rate of 10% on sports wagering revenues -- would be $2.5 million. It is hardly a large amount of revenue and is actually half the amount that the state receives from daily fantasy sports.

What if New York Went Full New Jersey?

What would happen in New York State following the lead of New Jersey - besides allowing sports wagering at its four commercial casinos -- passed legislation allowing these casinos to use the Internet to take wagers from everyone residing in New York? One could assume that the state would claim that the situs of the wager would be a server located on the casino property and thus would be open to everyone geographically located inside the state.

New Jersey has 45% of New York's population and would (using December 2018 figures) likely have $187 million in annual sports wagering revenue. That number in New York State would equate to $416 million in sports wagering revenue. New York's current 10% tax rate would yield $41.6 million in tax revenue. Under the bills that have been introduced on sports wagering in the state in 2018 and 2019, the tax rate would be set at the lower rate of 8.5%. At an 8.5% tax rate, the yield to the state would be $35 million.

The initial $35 to $41 million dollar amount does provide some tax revenue. It is more than the $5 million that New York State receives from daily fantasy sports and the $15 million it receives annually from pari-mutuel taxes. Yet it is a drop in the budget -- not only compared to the overall state budget - but to the $2.4 billion the state receives from the traditional lottery and from the $950 million from video lottery terminals. To put this in perspective, it is considerably less than what the state receives from video lottery proceeds at the racinos at Saratoga Harness ($62 million in FY 2018) and at Finger Lakes ($48.7 million in FY 2018). A game changer, this isn't.

What ought to be most troublesome for New York is the potential claims from the Indian tribes. The most recent state budget indicates that the tribes, from their exclusivity fees -- the tribes pay fees to New York based on the state agreeing to keep areas near the tribe's casinos free from casino gambling -- are scheduled to pay about $212 million annually to the State. If there is Internet betting authorized in New York State, the tribes are certain to argue that a bettor placing a sports wager from inside their exclusivity zone to a commercial casino is violating their exclusivity rights. In the case of the Seneca Nation, the exclusivity rights include much of western New York, from the suburbs, to the east of Rochester, to the state's southern and western borders with Pennsylvania. The Oneidas have exclusivity in 10 counties in central New York. If New York authorizes Internet sports wagering, the tribes will certainly put that $212 million into question. The state might not be willing to take any action that would threaten the exclusivity payments. If New York sports wagering, even assuming significant growth in the wagering market, could produce a maximum of $100 million in government revenue, it will not come close to making up for a loss of the exclusivity payments. The state will need some arrangement with the gaming tribes before it can reasonably decide to make any significant expansion into the field of Internet sports wagering.

Current New York Loss of Sports Gambling Revenue to New Jersey

This issue should be a non-starter. New York is not losing significant revenue to New Jersey due to sports betting. It would be likely that the one site that New York bettors would be wagering at in New Jersey would be the Meadowlands. If New Yorkers constituted 1/3 of the in-person sports bettors in the Meadowlands in December of 2018, that would account for $1.2 million in gross revenue. Assuming again that December accounts for about 11% of overall sports gambling, that would equate to about $10.9 million of gross sports wagering revenue annually from New Yorkers. Under New York's current 10% tax rate for sports wagering, that would be a loss of $1.09 million annually. Under the bills that have been introduced on sports wagering in the state setting the tax rate at 8.5%, that would make the lost tax revenue $926,000. That is not a large amount of money that New York has arguably lost to New Jersey on account of sports wagering. It really should not merit any discussion. The share of toll revenue paid to the Port Authority from New Yorkers using the Lincoln Tunnel or the George Washington Bridge (with a $12.50 toll for EZ pass users in peak times) to get to the Meadowlands might by itself make up for this minimal loss of revenue.

Summary

In short, there ought to be one simple lesson to New York from the New Jersey experience: Don't get your hopes up too high. There will be no financial windfall for either the casinos or the state from in-person sports betting conducted at the four upstate casinos. Expansion of sports wagering to the Internet would be needed to make sports wagering a significant success. Even with Internet sports wagering, tax revenues to New York would not increase markedly, and the expansion to Internet sports wagering could lead to significant issues -- and potential revenue losses -- in dealings with the tribes that have gambling facilities in New York.

The one thing not to worry about is New Yorkers driving to New Jersey to bet on sports. This is probably not costing New York State anything.

About February 2019

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in February 2019. They are listed from oldest to newest.

January 2019 is the previous archive.

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