U.S. Second Circuit - FindLaw

U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog


Fax to Doctors May Violate Law Against Junk Faxes

There's no such thing as a free lunch and apparently no free dinners either -- at least not unsolicited fax invitations for dinner and a business show.

The U.S. Second Circuit Court of Appeals said that an unsolicited fax for a free dinner may have violated the Junk Fax Protection Act of 2005. Although a trial judge ruled the invitation was not a prohibited advertisement, the appeals court said it was close enough because the dinner had a business purpose.

Boehringer Ingelheim Pharmaceuticals, Inc. had faxed doctors an invitation to a free dinner and a presentation about a physical disorder. The company was waiting for FDA approval of its drug to treat the disorder at the time.

"The fax invitation was sent to a doctor, whom Boehringer would presumably hope to persuade to prescribe its drugs to patients," Judge Ralph K. Winter wrote for the court. "Therefore, facts were alleged that Boehringer's fax advertised a free seminar relating to its business."

Last summer, a three-judge Second Circuit panel ruled that the U.S. government could not force Microsoft to turn over email data stored on overseas servers. They rejected the government's warrant, issued pursuant to the Stored Communications Act, finding that the act had no extraterritorial reach. It was a landmark ruling, one praised by business and privacy advocates and condemned by those who viewed it as hamstringing criminal investigations.

That opinion will stand, for now. On Tuesday, the Second Circuit deadlocked 4-4 on whether to rehear the case en banc, effectively denying any rehearing -- and resulting in four separate dissents.

Court Confronts Sexual Orientation at Work

The courts are in a delicate situation when it comes to discrimination based on sexual orientation in the workplace.

"It's not about sex per se -- it doesn't matter who you slept with last night," attorney Susan Chana Lask argued on Jan. 20 in a case pending before the Second Circuit Court of Appeal.

Court Restores EPA's Water Transfer Rule

Turning the tide against environmentalists, a federal appeals court has upheld the Environmental Protection Agency's rule on water transfers.

The Second Circuit Court of Appeals said the Water Transfers Rule is not subject to the National Pollutant Discharge Elimination System, which permits and scrutinizes water quality throughout the country. The EPA rule has allowed water providers to transfer water from one body of water to another -- without NPDES permits -- for decades.

Environmental groups, including conservation and sporting organizations as well as several state, provincial, and tribal governments, argued in their lawsuit that the rule violated the Clean Water Act of 1972. A district court agreed, but the appellate court reversed.

"The EPA's interpretation of the Clean Water Act as reflected in the Rule is supported by several valid arguments--interpretive, theoretical, and practical," the court said in a divided opinion.

Court Hands Another Loss to Louis Vuitton; Couldn't Take 'My Other Bag' Joke

It was no joke to Louis Vuitton, who sued the makers of canvas hand bags that show cartoon images of Louis Vuitton bags.

Louis Vuitton apparently took umbrage that My Other Bag, Inc., was mocking the high-fashion company, which makes $2,000 hand bags. The company sued for trademark and copyright infringement, but a trial judge dismissed the case.

Doubly offended, the company appealed. The Second Circuit Court of Appeal, in a carefully worded opinion so as not to add insult to... Well, basically they said there was no injury.

"The fact that the joke on LV's luxury image is gentle, and possibly even complimentary to LV, does not preclude it from being a parody," the court said.

Capitol Records Music Infringement Case Going to SCOTUS

Can't I get a witness? Can't I get a witness?

Capitol Records could have hoped so. The company lost at trial and then appeal over lip-dubbed music recordings, so now its lawyers are are going to the highest court in the land.

The case involves music recorded before 1972, and whether Section 301(c) of the Copyright Act's remedies for infringement survived the safe harbor provisions of the Digital Millennium Copyright Act. The DMCA shields internet service providers from some actions taken by their users, but the Copyright Act leaves infringement protection for pre-1972 recordings to the states.

2nd Cir. Adopts NLRB Standard for Bargaining Units

The Second Circuit has adopted the National Labor Relations Board's organizational standards for proposed unions. In applying a two-part test, the court joined other federal jurisdictions to evaluate whether proposed collective bargaining units consist of employees who share a "community of interests" and do not "arbitrarily exclude other employees." The panel reached its decision in Constellation Brands v. National Labor Relations Board, a contest over the organization of a winery's operations department.

"We hold the Specialty Healthcare framework to be valid, as our sister circuits have, and to be consistent with this Court's precedent," the court said. While upholding the NLRB's framework, however, the court concluded the Board did not properly apply the standard.

When the Baltimore Orioles go into overtime, the workers in Camden Yards don't exactly celebrate. That's because the men and women who sell you your peanuts and crackerjacks don't get paid overtime.

Those workers sued in 2011, alleging that the lack of overtime ran afoul of federal labor laws. But the Second Circuit disagreed last Monday, ruling that the concession workers were exempt from overtime protection.

A company can be held responsible for the retaliatory actions taken by one co-worker against another, even when those workers are just low-level employees, the Second Circuit ruled on Monday.

The decision makes it easier for employers to be held liable under a "cat's paw" theory of liability. "A what?" you ask. A cat's paw. That is, the sort of obscure theory of liability coined by Seventh Circuit Judge Richard Posner and relating to an ancient Aesop fable. The gist: as a cat paws one toy, causing it to hit another, so to can employers be held responsible when one employee manipulates them into taking discriminatory or retaliatory action against another.

Federal Courts Have No Jurisdiction to Expunge Convictions

A federal district court in Brooklyn has no authority to expunge a valid conviction of a woman who said her arrest record had prevented her from securing a job as a health aide. The Second Circuit opinion did take sympathy on the woman and suggested that Congress should consider allowing federal judges to have the ability to erase old convictions.