Justia U.S. 2nd Circuit Court of Appeals Opinion Summaries

In this copyright infringement suit, plaintiffs challenged the district court's determination that defendants’ verbatim use of a portion of Abbott and Costello’s iconic comedy routine, "Who’s on First?," in the recent Broadway play "Hand to God," qualified as a non‐infringing fair use. The court concluded that defendants’ entitlement to a fair use defense was not so clearly established on the face of the amended complaint and its incorporated exhibits as to support dismissal. In this case, defendants' verbatim use of the routine was not transformative, defendants failed persuasively to justify their use of the routine, defendants' use of some dozen of the routine’s variations of “who’s on first” was excessive in relation to any dramatic purpose, and plaintiffs alleged an active secondary market for the work, which was not considered by the district court. The court concluded, however, that the dismissal is warranted because plaintiffs failed to plausibly plead ownership of a valid copyright. The court found plaintiffs' efforts to do so on theories of assignment, work‐for‐hire, and merger all fail as a matter of law. Accordingly, the court affirmed the judgment. View "TCA Television Corp. v. McCollum" on Justia Law

Defendant pled guilty to one count of possession of child pornography and then appealed his sentence of 84 months in prison. Defendant argued that the district court erred in calculating the Guidelines range by imposing a five-level enhancement under USSG 2G2.2(b)(3)(B) for distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value” based on his use of a peer-to-peer file-sharing system to trade pornography. The court ultimately concluded that the manner in which defendant used file sharing warranted this enhancement, but held that the district court erred in describing the Guidelines range as above the statutory maximum for the charge. Accordingly, the court vacated and remanded for resentencing. View "United States v. Bennett" on Justia Law

Plaintiff, the widow of Louis K. Smith, who authored and copyrighted a book entitled "The Hardscrabble Zone," filed suit alleging direct and contributory copyright infringement by Barnes & Noble. Barnes & Noble, under license, uploads books and book samples to digital “lockers” that it maintains for its individual customers. When the license granted by Smith was terminated, Barnes & Noble did not delete a sample of Smith’s book. The court concluded that, because the agreement does not provide for the license in the sample to terminate after the sample has been distributed, plaintiff cannot sustain her burden to prove that providing cloud‐based access to validly obtained samples is beyond the scope of the license agreement. Therefore, the court concluded that the conduct at issue was authorized by the relevant contracts between the parties and affirmed the judgment. View "Smith v. Barnesandnoble.com, LLC" on Justia Law

Petitioner, a native and citizen of the People's Republic of China, seeks review of the BIA's order affirming the IJ's denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Because petitioner did not object to the introduction of the credible fear interview notes at her merits hearing and did not make a due process argument in her brief to the BIA, the court declined to review her due process argument as unexhausted. The court agreed with petitioner that the IJ and BIA erred in some of its findings, but nonetheless concluded that substantial evidence supported the IJ and BIA's ultimate ruling regarding past persecution. The agency cited numerous and important consistencies among petitioner's testimony, written application, and credible fear interview. Finally, the court concluded that there is no error in the agency’s conclusion that petitioner failed to show that her fear of future persecution resulting from her activities with the China Democracy Party was objectively reasonable. Accordingly, the court denied the petition for review, vacated the stay of removal, and dismissed any pending motion for a stay of removal as moot. View "Li v. Lynch" on Justia Law

Process America filed suit against Cynergy for breach of contract and Cynergy counterclaimed, alleging, inter alia, that Process America improperly solicited its customers. The district court held that although both parties had breached the contract, Cynergy’s liability was capped by the contract. The district court awarded Cynergy a net total of $8,521,182 in damages. The court concluded that the solicitation of merchants, and transfer of a portion of the Portfolio to a third party, violate the Independent Sales Organization (ISO) Agreement which permits transfer only pursuant to Section 2.6.B of the ISO Agreement, such that Cynergy is entitled to damages based on the increased rate of attrition of merchant accounts in the Portfolio; the court rejected Process America's argument that, even if the solicitation of merchants would ordinarily be a breach of the non‐solicitation clause, it is excused from performing its obligations under that provision as a result of Cynergy’s failure to pay Process America residuals; the court agreed with the district court's finding that the plain language of Section 4.6 limits damages for Cynergy’s breach of contract to $300,818; the court affirmed the district court’s damages calculation to the extent that it attributes 100% of the increased attrition to Process America; but the court agreed with Process America's contention that the damages calculation was erroneous because it improperly included residuals that would have been paid to Process America. Accordingly, the court affirmed the district court’s interim decisions regarding Process America’s liability. The court vacated the district court's calculation of damages and remanded for further proceedings. View "Process America v. Cynergy Holdings" on Justia Law

Plaintiffs worked at the concessions at Oriole Park, the home field of the Baltimore Orioles. Plaintiffs filed suit seeking overtime compensation under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq. DNC Sportservice, the owner of the concessions, chose not to pay on the basis of an exemption under section 213(a)(3) of the FLSA, which exempts any amusement or recreational establishment. The court concluded that a concessions operator at a place of amusement or recreation qualifies in its own right as “amusement or recreational,” even though it does not directly provide the amusement or the recreation. The court concluded that, although the FLSA does not define “amusement or recreational,” the legislative history and an interpretative rule from the Department of Labor indicate that “concessionaires” at amusement or recreational establishments are themselves typical examples of such establishments. Using the common understanding and definition of “concessionaire,” the court held that an establishment at an amusement or recreational host that sells goods or services to the host’s customer’s for their consumption or use during the host’s amusement or recreational activities is a concessionaire that qualifies as an “amusement or recreational establishment” under FLSA. In this case, the court concluded that DNC Sportservice satisfied the receipts test to qualify for the exemption. Accordingly, the court affirmed the judgment of the district court granting summary judgment to DNC Sportservice. View "Hill v. Delaware North Co. Sportservice" on Justia Law

Plaintiff and Undercover Officer C0039’s (UC 39) appeal from the district court's judgment finding UC 39 liable for denying plaintiff his right to a fair trial by fabricating evidence in connection with criminal charges against plaintiff, and awarding plaintiff $1 in nominal damages and $20,000 in punitive damages. The district court held that UC 39’s allegedly fabricated account of his own observations could provide the basis for a claim of denial of the right to a fair trial due to an officer’s provision of false information to a prosecutor following Ricciuti v. N.Y.C. Transit Authority. The court held that the district court did not err in denying UC 39’s motion for judgment as a matter of law or in denying plaintiff's motion for a new trial.The court held that Ricciuti, along with the limiting standard therein, applies to false information contained in an officer’s own account of his or her observations of alleged criminal activity giving rise to an arrest which he or she then conveys to prosecutors. Accordingly, the court affirmed the judgment. View "Garnett v. Undercover Officer C0039" on Justia Law

WWE, relying on the court's decision in Hageman v. City Investing Co., moved to dismiss these appeals on the ground that other consolidated cases remained pending in the district court. Because the McCullough and Haynes cases, the subjects of the pending motion, were consolidated with other cases in the district court for all purposes, and because the Supreme Court in Gelboim v. Bank of America Corp. explicitly declined to express an opinion on the appealability of a dismissal of one of multiple cases in such a consolidation, Gelboim does not oblige the court to reconsider the continuing validity of Hageman. Applying Hageman, the court sees nothing in plaintiffs' papers that overcomes the “strong presumption that the judgment is not appealable.” Accordingly, the motion to dismiss the appeals in 16-1231 and 16-1237 is granted, without prejudice to renewal of these appeals upon entry of a final judgment in the district court disposing of all the cases with which the McCullough and Haynes cases have been consolidated. View "McCullough v. World Wrestling Entm't" on Justia Law

Plaintiffs, investors in Vivendi's stock during the relevant time period, filed a class action suit against Vivendi, alleging that Vivendi’s persistently optimistic representations during the relevant period constituted securities fraud under section 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 15 U.S.C. 78j(b), as well as the Securities Exchange Commission’s (SEC) Rule 10b–5 (Rule 10b–5) promulgated thereunder, 17 C.F.R. 240.10b–5. The court affirmed as to Vivendi's claims on appeal, concluding that: (1) plaintiffs relied on specifically identified false or misleading statements at trial and thus, contrary to Vivendi’s argument on appeal, did not fail to present an actionable claim of securities fraud; (2) Vivendi’s claim that certain statements constituted non‐actionable statements of opinion is not preserved for appellate review; (3) Vivendi’s claims that certain statements constituted non‐actionable puffery and that others fall under the Private Securities Law Reform Act’s safe harbor provision for “forward‐looking statements,” see 15 U.S.C. 78u‐5(c), is without merit; (4) the evidence was sufficient to support the jury’s determination that the fifty‐six statements at issue here were materially false or misleading with respect to Vivendi’s liquidity risk; (5) the district court did not abuse its discretion in admitting the testimony of plaintiffs’ expert, Dr. Blaine Nye; and (6) the evidence was sufficient to support the jury’s finding as to loss causation. As to plaintiffs' cross-appeal, the court affirmed and concluded that the district court did not abuse its discretion in excluding certain foreign shareholders from the class at the class certification stage; and did not err in dismissing claims by American purchasers of ordinary shares under Morrison v. Nat’l Austl. Bank Ltd. View "In re Vivendi, S.A. Secs. Litig." on Justia Law

This appeal stems from the same set of underlying facts as those in In re Vivendi S.A. Securities Litigation, Nos. 15‐180‐cv(L), 15‐208‐cv(XAP), in which the court today issued a separate opinion. GAMCO, so-called "value investors," filed a securities fraud action against Vivendi under section 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 15 U.S.C. 78j(b), as well as the Securities Exchange Commission’s (SEC) Rule 10b–5 (Rule 10b–5) promulgated thereunder, 17 C.F.R. 240.10b–5. The district court subsequently entered judgment for Vivendi. The court concluded that the record supports the district court’s conclusion that, if GAMCO had known of the liquidity problems and their concealment, GAMCO would still have believed Vivendi’s PMV to be “materially higher” than the public market price. The court also concluded that it was also not clearly erroneous for the district court to conclude that knowledge of Vivendi’s liquidity problems would not have changed GAMCO’s belief that a catalyst was likely — i.e., its belief that the market price would rise towards the PMV, if not immediately, then over the course of the next several years. In this case, the record at the trial simply does not establish that it was clearly erroneous for the district court to find that GAMCO, had it known of the liquidity problems at Vivendi, would have made the choice to buy the same securities it purchased. Accordingly, the court affirmed the judgment. View "GAMCO v. Vivendi" on Justia Law