Judge Rowan Wilson isn't afraid to step out on a limb when he sees inequity or incongruity. He reminds me of another independent commercial litigator that once sat on the Court of Appeals—former Judge Robert Smith. Judge Smith was well known not only for his voracious questioning at oral argument, but also for pointing out …
Court of Appeals Holds Plaintiffs Can’t Base Discrimination Claim Under the NYC Human Rights Law on Untreated Alcoholism
Under Title VII and the New York State Human Rights Law, individuals are protected from discrimination on the basis of a perceived disability, even if they don't have one. The New York City Human Rights Law is generally interpreted to be even more protective than Title VII and the State Human Rights Law. In fact, …
Fourth Department Affirms Class Certification for Buffalo Jills in Case Against NFL, Bills
In Ferrari v The National Football League, four former members of the Buffalo Jills, the Bills' cheerleading squad, brought a proposed class action against the NFL, the Bills, and their employer alleging that they weren't paid for hundreds of hours of work because they were "deliberately misclassified as independent contractors rather than employees." The Jills' …
Court of Appeals Sends Kazahk Billionaire’s Suit Over Bad Financial Advice to Arbitration in London
In Garthon Business Inc. v Stein (No. 99), which I previewed here, the Court of Appeals was asked whether Kazakh billionaire Patokh Chodiev's suit alleging breach of contract, fraud, and negligence for bad financial advice could be litigated in New York, or had to proceed to arbitration in London. The dispute involved multiple different investment advisement agreements with …
En Banc Second Circuit Hears Arguments Whether Sexual Orientation Discrimination is Discrimination Because of Sex Under Title VII
The full Second Circuit yesterday heard arguments in Zarda v Altitude Express, which involves the hot button legal question whether Title VII offers protection for sexual orientation discrimination under the clause prohibiting discrimination "because . . . of sex." In a nearly two-hour argument, with three attorneys arguing on each side, the Court was fairly active …
Court of Appeals Deals Blow to Right to Die Movement in New York
Four states have legalized the right to aid-in-dying, which is generally defined as the right of a mentally competent and terminally ill person to obtain a prescription for a lethal dosage of drugs from a physician, to be taken at some point to cause death—Oregon, Washington, Vermont, and California. New York, on the other hand, …
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New York Judge Denies State’s Motion to Dismiss Suit Challenging Constitutionality of New York’s DFS Law
Last year, a wave of uncertainty surrounded the legality of daily fantasy sports. In New York, Attorney General Eric Schneiderman brought a high profile suit to enjoin the operation of Draft Kings and FanDuel, arguing that their DFS games violated New York's constitutional ban on gambling. Specifically, Article I, § 9 of the New York …
U.S. Department of Justice Contradicts EEOC, Argues that Title VII Does Not Protect Against Sexual Orientation Discrimination
In Zarda v Altitude Express, Inc., the Second Circuit, sitting en banc, is faced with the question of whether to overrule its prior precedent and hold that Title VII protects against sexual orientation discrimination. One month ago, the EEOC filed an amicus brief urging the Court to overrule its prior precedent in Simonton v Runyan, and …
Chevron Strikes Again: Second Circuit Holds FMLA Retaliation Plaintiffs Need Only Show Exercise of Rights was Motivating Factor, Not But For Cause
The Family Medical Leave Act provides job protection for workers who need time off for a serious health condition or to care for family members who are suffering from a qualifying condition. Because of its broad protections, the FMLA has also engendered a substantial amount of litigation. The claims can take two different shapes: FMLA …
Expressions Hair Design Update: State Asks Second Circuit to Certify Interpretation of General Business Law § 518 to the Court of Appeals
Seven weeks ago, the Second Circuit asked the parties in Expressions Hair Design v Schneiderman to submit further briefing on whether it should certify to the Court of Appeals the question of how General Business Law § 518, New York's credit card surcharge law, should be interpreted, whether section 518 is a valid commercial disclosure, and whether …
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