Category Archives: Litigation in the News

Fourth Circuit upholds injunction against President Trump’s travel ban

Here’s the text of the opinion. For an analysis, see this Constitutional Law Prof Blog post. — Joe

A check on Trump’s executive power: 134 lawsuits filed in federal court against Trump since the inauguration

On May 5, 2017, The Boston Globe published a report indicating that President Trump has been sued in federal court 134 times since he was sworn into office. While some suits are frivolous, the plaintiffs in most cases vary from green card holders who were blocked from entering the U.S. as a result of Trump’s travel ban to sanctuary cities that sued after the Trump administration threatened to withhold federal funding. In Trump has been sued 134 times in federal court since inauguration, Boston Globe, May 5, 2017, Matt Viser writes “The dramatic uptick in litigation — Barack Obama faced 26 suits at this point in his first year, while George W. Bush had seven, and Bill Clinton, 15 — is further evidence of the unsettled era ushered in by Trump’s election and the intense fallout stemming from his early executive actions. Court filings may not be as visible as demonstrations on the National Mall, but they ultimately could exert a more lasting check on his executive power.” — Joe

Ousted Cincinnati Law Dean Jennifer Bard sues university, seeks reinstatement

The complaint, filed late last week, asserts the interim provost and the University of Cincinnati illegally placed Jennifer Bard on administrative leave in March immediately following her response to local media reports about financial deficits at the College and faculty members’ responses to her efforts to reduce those deficits. The complaint also asserts Bard was denied due process of law under the Fourteenth Amendment when she was summarily placed on administrative leave, suffered First Amendment retaliation for speaking to the press on matters of public concern, and that the university breached both its contract with her and an agreed upon 6-month plan to restore mutual trust and communication. TaxProf Blog has the complaint.  — Joe

Whittier Law School plans to shutdown; law faculty seek TRO

The New York Times is reporting that Whittier Law School is planning to shut its doors. The school has not set a date but announced that it will not admit 1Ls this fall. Whittier is the first fully accredited school to announce plans to close. For more, see Elizabeth Olson’s DealBook post. See also Whittier Law School may close, as trustees announce no new students (National Jurist) which notes that Whittier’s enrollment has dropped from 700 in 2010 to less than 450. During the same time period, its median LSAT has dropped from 152 to 146. Its bar passage rate has dropped to 38.1 percent for the class of 2015, the most recent data available. It was as high as 69 percent in 2012. Inside Higher Ed reports that some law school faculty members have sued to block the school from closing. The faculty members claim that Whittier College is seeking to profit from a sale of the land on which the law school is located. Here’s their TRO brief. — Joe

Trump administration sued over its decision to delay implementation of energy efficiency rules for appliances

Leading a coalition of 10 states and municipalities, New York Attorney General Eric Schneiderman petitioned the Second Circuit to review Trump’s order. The petitioners claim the Trump administration violated the federal Energy Policy and Conservation Act’s “anti-backsliding” provisions and the Administrative Procedures Act. The petition asks the appeals court to require the standards to take effect immediately.

Joining in the petition are California, Connecticut, Illinois, Maine, Massachusetts, Oregon, Vermont and Washington state – along with Pennsylvania’s Department of Environment Protection and New York City. In a letter yesterday, the coalition warned the Department of Energy to publish the new standards within 60 days or face a federal lawsuit. — Joe

When big data and algorithms compile “kill lists,” mistakes can be deadly

Two journalists with long-term ties to the Middle East, including one US citizen, have been targeted for death because they are erroneously listed on the US government’s terrorist kill list. On March 30, 2017, the parties — Ahmad Muaffaq Zaidan and Bilal Abdul Kareem — filed suit in the US District Court for the District of Columbia seeking declaratory and injunctive relief under the Administrative Procedure Act for being placed on this kill list. From the complaint:

Plaintiffs are both journalists who do courageous and important reporting in some of the most difficult areas of the world. Their travel, communications, social media content and contacts, related data and metadata have been input into “algorithms” used by the United States to identify terrorists. Those algorithms have identified them as persons to be killed, not because they are terrorists but because the methodologies employed by defendants result in the unjustified killing of innocent people. Plaintiffs’ inclusion on the Kill List is the result of arbitrary and capricious agency action, accomplished without due process, and in violation of the United States Constitution and U.S. and international law.

— Joe

“Get ’em out of here:” Lawsuit against Trump for inciting violence at campaign rally can proceed

From the Courier-Journal report by Grace Schneider:

A federal judge in Louisville said in a ruling that then-candidate Donald Trump incited the use of violence against three protesters when he told supporters at a campaign rally a year ago to “get ’em out of here.”

U. S. District Judge David J. Hale of the Western District of Kentucky also wrote in an opinion and order released Friday that because violence had broken out at a prior Trump rally and that known hate group members were in the Louisville crowd, Trump’s ordering the removal of an African-American woman was “particularly reckless.”

Text of the memorandum opinion and order here.  For an analysis, see CUNY Law prof Ruthann Robson’s Constitutional Law Prof Blog post. — Joe

Round one in the Official Code of Georgia Annotated lawsuit: “The Copyright Act itself specifically lists ‘annotations’ in the works entitled to copyright protection.”

Last week, US District Court Judge Richard Story issued a ruling in favor of the Georgia Code Revision Commission to preserve the State of Georgia’s claimed copyright of the Official Code of Georgia Annotated (OCGA). Here’s the text: Code Revision Commission et al v. Public.Resource.Org, Inc. The case turned on Lexis-supplied annotations to an official state code that in this rare instance happens to be annotated; most, if not all, other official state codes are unannotated. As value-added material, the annotations entitled the work to copyright protection according to the district court. Wait ‘n see.

At the URL for Public Resources’ OCGA archive, Carl Malamud posted the following message:

Dear Fellow Citizen:

You have been denied permission to access this document at this time due to ongoing judicial proceedings in the following case: Code Revision Commission et al v. Public.Resource.Org, Inc. (Case 1:15-cv-02594-MHC, U.S. District Court for the Northern District of Georgia)

Your access to this document, which is a law of the United States of America, has been temporarily disabled while we fight for your right to read and speak the laws by which we choose to govern ourselves as a democratic society.

To apply for a license to read this law, please consult the Code of Federal Regulations or applicable state laws and regulations for the name and address of a vendor. For more information on edicts of government and your rights as a citizen under the rule of law, please read my testimony before the United States Congress. You may find more information on our activities at Public Resource on our registry of 2015 activities.

Thank you for your interest in reading the law. An informed citizenry is a fundamental requirement for our democracy to work. I appreciate your efforts and apologize for any inconvenience.

Sincerely yours,

Carl Malamud
Public.Resource.Org
March 23, 2017

For an excellent article covering this development, see Joe Mullin’s If you publish Georgia’s state laws, you’ll get sued for copyright and lose: In some states, you can’t read the law without paying a corporation (ars technica, March 30, 2017)– Joe

Zervos v. Trump: Is a sitting president immune from defamation claims?

The answer to that question is “wait ‘n see.” A former contestant on The Apprentice claims Trump defamed her by denying that he sexually assaulted her during the presidential election campaign in Zervos v. Trump, (Supreme Court of the State of New York County of New York, ndex No. 150522/2017). On March 27, 2017, Trump’s attorneys file this interesting memorandum of law.

H/T to and for a summary, see Adam Klasfeld’s Trump Asserts Immunity Against Defamation Claims (Courthouse News Service). — Joe

City of Seattle sues Trump administration over threats against sanctuary cities

On Monday, AG Sessions announced new measures that would claw back Justice Department funds from sanctuary cities that take a more lenient approach to enforcing federal immigration laws. On Tuesday, The Trump administration’s threat to defund sanctuary cities dominated the House Judiciary Committee’s hearing. On Wednesday, the City of Seattle sued the Trump administration over his administration’s threats against sanctuaries cities in the Western District of Washington.

The lawsuit makes two main arguments about Trump’s Executive Order according to Dean Kevin R. Johnson’s (UC-Davis) Immigration Law Prof Blog post:

  1. The order is unconstitutional and ambiguous, and creates uncertainty around Seattle’s budget by threatening federal funding. It violates the 10th amendment by attempting to force local entities to enforce federal immigration law, and violates the Spending Clause by attempting to coerce local action through the denial of federal funds.
  2. The City of Seattle and our welcoming city policies do not violate federal law. The Executive Order calls for localities to cooperate with the federal government and share information. City employees are directed to cooperate with, not hinder, federal actions; however, City employees are prohibited from inquiring into immigration status. The City doesn’t prohibit information sharing, but instead limits the collection of information.

For recent CRS reports on sanctuary cities, see this LLB post. — Joe

Does Facebook’s personalization of social media pages through the use of machine-learning algorithms constitute the “development” of content under the Communications Decency Act?

Catherine A. Tremble attempts to answer that question in her forthcoming Fordham Law Review note, Wild Westworld: The Application of Section 230 of the Communications Decency Act to Social Networks’ Use of Machine-Learning Algorithms.

Here’s the abstract:

On August 10th, 2016, a complaint filed in the Eastern District of New York formally accused Facebook of aiding the execution of terrorist attacks. The complaint depicted user-generated posts and groups promoting and directing the incitement of terrorist activities. Under section 230 of the Communications Decency Act (CDA), Interactive Service Providers (ISPs), such as Facebook, cannot be held liable for user-generated content where the ISP did not create or develop the information. However, this case stands out because it seeks to hold Facebook liable not only for the content of third parties, but also for the effect its personalized machine-learning algorithms — or “services” — have had on the ability of terrorists to orchestrate and execute attacks. By alleging that Facebook’s conduct goes beyond the mere act of publication, and includes the actual services’ effect on terrorists’ abilities to more effectively execute attacks, the complaint seeks to prevent the court from granting section 230 immunity to Facebook.

This Note argues that Facebook’s services — specifically the personalization of social media pages through the use of machine-learning algorithms — constitute the “development” of content and as such do not qualify for immunity under section 230 of the CDA. Recognizing the challenge of applying a static statute to a shifting technological landscape, this Note analyzes recent jurisprudential evolutions in section 230 doctrine to revise the original analytical framework applied in early cases. This Framework is guided by congressional and public policy goals but evolves to demonstrate awareness of technological evolution and ability. It specifically tailors section 230 immunity to account for behavioral data mined for ISP use, and the effect the use of that data has on users — two issues that courts have yet to confront. This Note concludes that, under the updated section 230 framework, personalized machine-learning algorithms made effective through the collection of individualized behavioral data make ISPs co-developers of content and as such bar them from section 230 immunity.

— Joe

LexisNexis sued by consumer for shoddy editorial work

Hoping to represent a class of consumers who bought LN’s New York Landload-Tennat Law (aka the Tanbook), the law firm of Himmelstein, McConnell, Gribben, Donoghue & Joseph brought a Feb. 23 complaint against the publisher in Manhattan Supreme Court.

“Rather than an authoritative source of state statutes, laws and regulations, the Tanbook, which is represented by the defendant as complete and unedited, is instead, at least as pertains to those involving rent regulated housing in New York rife with omissions and inaccuracies, rendering it of no value to the attorneys, lay people, or judges who use it,” the 25-page complaint states.

Details at Class Calls LexisNexis Publication Totally Useless (Courthouse News Service). Hat tip to and see also Jean O’Grady’s Dewey B Strategic post. — Joe

Who owns public law? Casemaker files answer and counterclaim in Fastcase dispute over publishing rights to Georgia law

Bob Ambrogi reports that Casemaker had a change of heart and is now preparing to fight Fastcase over the publishing rights to the Georgia Administrative Rules and Regulations. Casemaker, as you may recall, claims to be the only authorized distributor of Georgia Administrative Rules and Regulations by virtue of its contract with the State of Georgia. Fastcase claims that a private publisher cannot create its own exclusive rights in non-editorial, non-enhanced public law by contract with the government.

For details about this latest development, including the text of Casemaker’s answer to Fastcase’s complaint, see Bob Ambrogi’s So Much for Casemaker Saying It Will Not Fight Fastcase Lawsuit. — Joe

Fastcase sues Casemaker over copyright claim to Georgia State Rules & Regs: Updated

In response to a takedown notice issued by Lawriter (dba Casemaker), Fastcase is seeking a declaratory judgement and injunctive relief in US District Court so that it can continue to publish the Georgia Administrative Rules and Regulations for the Company’s 800,000 member subscription base, including, interestingly enough, members of the Georgia state bar. In a nutshell, Fastcase is hoping for a ruling that states that no one can own and publish exclusively public law. Here is the complaint in what may be a landmark case for the Open Law movement. — Joe

Update: Bob Ambrogi reports that Lawriter will not fight Fastcase’s lawsuit.

It’s Only A Friday Fun If You Like The Result: Google Wins Again at Second Circuit Over The Book Scanning Project

The Second Circuit handed Google another victory in its battle with the Authors Guild, et al., by upholding the District Court’s determination that its book scanning project is fair use.  Here is the Court’s own summary of the decision from the end of the opinion:

In sum, we conclude that: (1) Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google’s commercial nature and profit motivation do not justify denial of fair use. (2) Google’s provision of digitized copies to the libraries that supplied the books, on the understanding that the libraries will use the copies in a manner consistent with the copyright law, also does not constitute infringement. Nor, on this record, is Google a contributory infringer.

The Court relied on its decision in the HathiTrust case for declaring that Google’s scans were transformative.  The Court here noted that the libraries did not offer snippet view in local search in comparison to Google.  That wasn’t a problem, however, as Google’s snippets were no substitute for a copy of the book.  At best a research could determine whether the book would be useful in a research project.  That would not be a lost sale necessarily if the researcher rejected using the book in a personal project.

I’m still digesting the opinion and may have more to say about this later.  I’ll refer readers to c copy of the opinion on Google Drive as supplied by the Chronicle of Higher Education.  I’ll also point to a copy linked in a statement of disappointment in the ruling by the Authors Guild.  Note, however, that the Guild links ultimately to copy placed on Google Drive as well (oh the irony).  I would also draw your attention to the fact that the link from the Chronicle allows the reader to download the document.  The version from the Guild does not offer that option.  I’m guessing the Guild is hard-wired in that regard.

Mark

Short Takes On The News: “Exceptional” Lawsuits, Denial of a Law License, and Law School Accreditation

Boy, I haven’t done one of these in quite some time.  Wandering down the Internet news can bring up some mighty unusual items where the law gets involved.  Take, for example, this story in Wonkette about one Sylvia Driskell from Auburn, Nebraska.  She has filed a handwritten complaint in the federal court for the District of Nebraska against all homosexuals on behalf of God and his Son, Jesus Christ.  The complaint alleges “sin.”

I expect the suit will be dismissed for any number of reasons including the inability to provide an address for service much like this earlier case from Nebraska where a state senator sued God to comment on the ability of court access by the public.  There is also the question of jurisdiction, to wit which federal law or rule can the plaintiff invoke that gets the case properly before the Court.

I’ve worked with a lot of public patrons/pro se litigants over the years.  They have ranged from, in my opinion, fairly competent to having no grasp on reality in regard to what is a justiciable issue.  I feel for the librarians, if any, who had to discuss the case with Driskell pre-filing.

In a somewhat related story, the Massachusetts Supreme Judicial Court denied a law license to one Randy Britton for a variety of reasons.  One is that he used a letter of recommendation that was part of a settlement agreement in a civil suit against the lawyer who wrote it.  The lawyer filed a criminal complaint against Britton which was later dismissed.  The letter was part of related civil actions.  The Court also found Britton failed to disclose other cases including one where he sued over a denial of a license for assault weapons.  He also had a “substantial history of initiating pro se legal actions, the majority of which have been unsuccessful, and some of which have resulted in sanctions or an order to pay restitution.”  Read more at the ABA Journal.

Finally, the new Indiana Tech Law School in Fort Wayne, Indiana, has not received accreditation in its second year of operation.  I’ve written before about the school, most of it wondering why it exists in the current academic climate.  If I remember correctly, it had to do with that part of Indiana being an underserved market with potential applicants going off to Michigan and Ohio for an education.  The story in the Fort Wayne News-Sentinel quotes school representatives as saying the school will make improvements to the program once it receives the inspection report.  Well, good luck to that.

Mark

Law Faculty Blogger Defamation Case Dismissal Upheld on Appeal

There are reports from the ABA Journal online and the National Law Journal (the link is in the ABA story) of a plaintiff who sued a law blogger, Professor Shaun Martin of the University of San Diego, for defamation resulting from statements about her case on his blog.  Professor Martin opined on some of the details in the case(s) of Melanie Welch in her actions against the school where she worked and the  California State Teachers’ Retirement System.  I’m not going to go into detail here about those cases.  The information is in the stories online and in the appellate opinion that affirmed the dismissal of her defamation suit on anti-SLAPP grounds.

The gist, if I read the opinion correctly, is that Professor Martin offered opinions about the evidence presented in the case, the technical correctness of the ultimate decisions, and suggested to his readers to determine for themselves whether the results were justice:

[M]aybe all of this is complete justice. But maybe not. Depends profoundly upon your point of view.” Op. at p 7.

That was one of the statements alleged to be defamatory.  The Court found that opinion is not actionable under defamation law and the plaintiff was unable to carry her burden under the anti-SLAPP burden-shifting framework.  Readers may be wondering why I’m not putting in more detail on the facts of the case.  I’ll just say that readers should read the article links and opinion and draw their own conclusions.  I’ll just say as someone who writes regularly writes about cases and their outcomes, I believe the result to be a correct one.  The text of the document is linked in the ABA Journal article above, and for convenience, here.  We’ll see if the California Supreme Court takes up the case if presented to it.

Mark

“Well, I’m back, baby”

I think those are the words Bender uses whenever Futurama rises from the dead.  That’s its current state unless one counted the cross-over episode with The Simpsons from the current season.  So, yep, I’ll be posting again, though not necessarily every day.  Keep those press releases coming.  I have a nine month backlog I’ll be going through to see if there is anything both interesting and still relevant to post.

The legal news today is that a judge allowed a woman to serve divorce papers to her husband via Facebook.  It’s a last resort, of course, when the other party avoids service.  But just think what this could mean for future litigation.  Interesting.  Here’s the story in Time Magazine.  Here’s a version of the same story from the New York Daily News, a paper with it’s own unique “character.”

Mark

 

Court Holds West, Lexis Legal Briefs Offering Is Fair Use

One of the running issues I had been following is the attempt to copyright legal briefs with the intention to gain royalties or prevent others from using them.  The particular case that litigates the issue is White v. West Publishing Company and Reed Elsevier (USDC Southern District NY).  District Judge Rakoff ruled that the use by West and Lexis is fair use.  Both companies transform the documents to a different purpose and use according to the Judge’s analysis under the four fair use factors:

The Court finds that West and Lexis’s use of the briefs was transformative for two reasons. First, while White created the briefs solely for the purpose of providing legal services to his clients and securing specific legal outcomes in the Beer litigation, the defendants used the brief toward the end of creating an interactive legal research tool. See Blanch v. Koons, 467 F.3d 224, 251 (2d Cir. 2006) (“The sharply different objectives that Koons had in using, and Bland had in creating [the work] confirms the transformative nature of the use.”). Second, West and Lexis’s processes of reviewing, selecting, converting, coding, linking, and identifying the documents “add[] something new, with a further purpose or different character” than the original briefs. Campbell, 510 U.S. at 579. While, to be sure, the transformation was done for a commercial purpose, “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell, 510 U.S. at 579. Thus, on net, the first factor weighs in favor of a finding of fair use.

The Court dismissed the claim with prejudice.  The entire opinion is here, courtesy of ARL.  I’m sure there will be an appeal.  Lawyers are sometimes too smart for their own good.  –Mark

Short Takes On The News: Tenure, Wikipedia, Campaign Finance, and Viacom Settles With Google

The ABA Council on Legal Education and Admissions to the Bar met over the weekend.  The Council decided to leave the faculty tenure requirement in place.  The news that the Council had considered weakening it to a requirement of job security met with intense opposition from individual faculty and the Association of American Law Schools.  Readers will probably know that I was in favor of the change because I believe it would law school administrations more flexibility in dealing with law school costs in times of lower enrollment (like now).  The National Law Journal published details surrounding the decision as well as a few others made at the meeting.

Harvard is seeking a Wikipedian in Residence.  That person, according to an article in The Atlantic, is “someone who can serve as a kind of liaison between Wikipedia and the academic, cultural, and intellectual institutions whose source material its entries rely on.”  That would be Harvard and its collections in this case.  Other major institutions such as the British Museum have such a person in place.  I think it’s a great idea though I wonder how the Wikipedia community will take to the idea.  There have been situations in the past where pages became battlegrounds between historians and the editors.

Salon features a story about McCutcheon v. FEC which is an election case pending before the Supreme Court.  The question presented is:

Federal law imposes two types of limits on individual political contributions. Base limits restrict the amount an individual may contribute to a candidate committee ($2,500 per election), a national-party committee ($30,800 per calendar year), a state, local, and district party committee ($10,000 per calendar year (combined limit)), and a political-action committee (“PAC”) ($5,000 per calendar year). 2 U.S.C. 441a(a)(1) (current limits provided). Biennial limits restrict the aggregate amount an individual may contribute biennially as follows: $46,200 to candidate committees; $70,800 to all other committees, of which no more than $46,200 may go to non-national-party committees (e.g., state parties and PACs). 2 U.S.C. 441a(a)(3) (current limits provided) (see Appendix at 20a (text of statute)). Appellants present five questions:

1. Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national-party committees.

2. Whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest.

3. Whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially.

4. Whether the biennial limit on contributions to candidate committees, 2 U.S. C. 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.

5. Whether the biennial limit on contributions to candidate committees, 2 U.S.C. 441a(a)(3)(A), is unconstitutionally too low.

If one hated Citizen United for striking down contribution limits, one will hate this case as well if the Court strikes down the remaining limits.  On the other hand, plutocrats with political interests everywhere should rejoice.

And finally, the Google/Viacom battle over alleged YouTube copyright violations was settled according to news reports.  Viacom lost twice at trial on the DMCA safe harbor provisions that YouTube claimed.  It took seven years to get to this point.  I’ve often said win, lose, or settle, the lawyers get paid.  CNET News has a good analysis of the case.  — Mark