Expressions Hair Design Update: Second Circuit Calls For Further Briefing, Asks Parties to Address Whether Part of Case Should Be Certified to Court of Appeals

After the Supreme Court unanimously held in March that New York's credit card surcharge law regulates speech, the Second Circuit has taken up the case again. As a refresher, New York General Business Law § 518 provides that that “[n]o seller in any sales transaction may impose a surcharge on a holder who elects to …

Second Circuit Certifies Question to Court of Appeals Whether Untreated Alcoholics are Disabled Under NYCHRL

In Makinen v City of New York, two New York City police officers sued the City and the Police Commissioner alleging that they were discriminated against because they were perceived to be untreated alcoholics, a form of disability discrimination.  The problem is, they weren't alcoholics at all, and the express terms of the New York …

Second Circuit Holds that in Recission Action, Entire Value of Contract is Amount in Controversy for Jurisdictional Purposes

In Pyskaty v. Wide World of Cars, LLC, the Second Circuit joins the Third and Sixth Circuits in holding that when a plaintiff sues for rescission of a contract, the total value of the contract, without any offsets, is the amount in controversy for jurisdictional purposes.  In Psykaty, the plaintiff bought a certified pre-owned BMW …

SDNY Judge Holds Sexual Orientation Discrimination is Cognizable Under Title VII

In Philpott v State of New York (SDNY Case No. 16 CIV 6778), U.S. District Court Judge Alvin K. Hellerstein decided he wouldn't wait to see if the Second Circuit would grant en banc review in Christiansen v Omnicom Group to hold that Title VII prohibits discrimination on the basis of sexual orientation.  Relying on Chief …

Second Circuit Holds Lehman Bros. Restricted Stock Units Must Be Subordinated in Bankruptcy 

When Lehman Brothers went under, many of its employees were left holding restricted stock units that could have been converted to common stock 5 years after they were issued.  Lehman's bankruptcy before the 5 years expired, however, rendered the restricted stock units worthless. So, the employees filed claims against Lehman's bankruptcy estate to recover the …

Second Circuit Holds Employee’s Offensive Facebook Post Still Protected Under NLRA

The Second Circuit, deferring to the NLRB's factual findings, holds that an employee's offensive and derogatory Facebook post about his boss and his boss's mother were still protected under the NLRA because it contained union advocacy.  This is the post. The Court, therefore, held that the employer violated the NLRA by terminating his employment for …

Second Circuit Again Constrained to Dismiss Title VII Sexual Orientation  Discrimination Claim 

A panel of the Second Circuit again holds that it is constrained to dismiss Title VII sexual orientation discrimination claim by court's prior Simonton holding. The Court's recent Christiansen and Zarda holdings set the stage for en banc reconsideration of seemingly outdated Circuit precedent that Title VII does not protect against sexual orientation discrimination. The …

Second Circuit Clarifies Fair Debt Collection Practices Act Issues

In Carlin v Davidson Fink LLP, the Second Circuit clarifies a number of issues concerning initial communications under the Fair Debt Collection Practices Act, including the required statement of the total amount due. First, a foreclosure complaint is not an "initial communication" under FDCPA, nor is a communication started by the debtor. Second, the inclusion …

A Panel of the Second Circuit Holds It is Constrained by Precedent to Dismiss Title VII Sexual Orientation Discrimination Claim

In Christiansen v Omnicom Group, Inc., a panel of the Second Circuit holds that it is contrained to dismiss the plaintiff's Title VII sexual orientation discrimination claims under the Court's precedent in Simonton v Runyon, but revives the plaintiff's gender stereotyping discrimination claim as stating a separate claim from the barred Title VII claims.  Chief Judge Katzmann …

Second Circuit Rejects Law Firm Challenge to NY Rules Barring Non-Lawyer Investment in Law Firms

In Jacoby & Myers, LLP v Presiding Justices of the First, Second, Third and Fourth Departments, the Second Circuit rejected a law firm's challenge to NY's rules barring non-lawyer investment in law firms.  The Court held that lawyers do not have First Amendment rights to associate and petition by accepting non-lawyer investment, and even if they …