Current Developments in the US District Court for the
Eastern District of New York
Posted: November 30, 2015

Court Elects Lodestar Over Percentage Method In Awarding Attorneys’ Fees In FLSA Case, While Reducing Lodestar Fee To Account For Overstated Hours And Other Timekeeping Excesses

In Marshall v. Deutsche Post DHL, No. 13-CV-1471 (E.D.N.Y. Sept. 21, 2015), Judge Dearie reduced a claim for $500,000 in attorneys’ fees under the Fair Labor Standards Act, 29 U.S.C. § 216(b), to $370,236.50. The parties settled the case for $1.5 million while plaintiffs’ motion for certification as a collective action was pending. Plaintiffs’ claim for compensatory damages was $1,650,000....


Posted in EDNY, Attorney Fees
Posted: November 25, 2015

Appeal Dismissed As Untimely Based on Unsuccessful Attempt to E-File

On October 30, 2015, the Second Circuit issued a decision in Franklin v. McHugh, No. 14‐4096‐CV, dismissing an appeal as untimely because the electronic filing of the notice of appeal, although timely attempted (and believed by counsel to have been timely made) was not successfully processed by the court’s electronic filing system. In Franklin, the appellant’s counsel “attempted to file”...


Posted: November 10, 2015

No Forfeiture of Substitute Property Without Showing That Offense Property Unrecoverable

In United States v. Espada, 10 CR 00985-1 (EDNY, Sept. 2, 2015), Judge Frederic Block explored competing claims to the pension benefits of convicted former state senator Pedro Espada, in the context of the Government’s effort to forfeit the pension. The Government sought forfeiture of the pension as “substitute assets,” that is, assets not connected to the offense for which...


Posted in EDNY, Forfeiture
Posted: October 27, 2015

Judge Cogan Strips Belarus Entities Of Sovereign Immunity Defense As Sanction For Discovery Abuse

In a civil case of international intrigue, Funk v. Belneftekhim a/k/a Concern Belneftekhim, 14 CV 0376 (E.D.N.Y. Oct. 20, 2015), the facts alone make for a worthy read. Plaintiffs, a New York attorney and his legal assistant, represented investors in defendants, a Belarusian oil company and its U.S. subsidiary that were connected with Belarussian government officials and several “John Does.”...


Posted: October 26, 2015

Arguments Not Raised in District Court Could Not be Raised on Appeal

On October 19, 2015, the Second Circuit issued a decision in In re: Fiorano Tile Imports, Inc., 14-3915, holding that arguments not raised in the EDNY could not be raised on appeal even though controlling circuit precedent would have precluded the court from accepting them, explaining: It is a well-established general rule that an appellate court will not consider an...


Posted in EDNY, Appeals
Posted: October 13, 2015

Action Dismissed on Rooker Feldman Grounds

On October 1, 2015, the Second Circuit issued a decision in Riley v. Commissioner of Finance, 14-4541-CV, affirming the EDNY’s dismissal of an action pursuant to the Rooker-Feldman doctrine. In Riley, the plaintiff brought a “quiet-title action which sought a declaration of ownership of property despite a tax-foreclosure judgment already entered . . . in New York state court.” The...


Posted in EDNY, Jurisdiction
Posted: October 7, 2015

Appeal Dismissed As Untimely Despite Appellant’s Observance of District Court Rules

On September 16, 2015, the Second Circuit issued a decision in Weitzner v. Cynosure, Inc., 14-723-CV, dismissing an appeal that was untimely only because the appellant followed the district judge’s rules regarding when to file a motion for reconsideration. In Weitzner, the appellants “moved for reconsideration” of the EDNY’s decision dismissing their complaint, “but, in deference to the judge’s individual...


Posted in EDNY, Appeals
Posted: September 14, 2015

Second Circuit Recognizes Retaliation Claims Under Section 1983

On September 2, 2015, the Second Circuit issued a decision in Vega v. Hempstead Union Free School District, 14‐2265‐CV, recognizing the existence of a retaliation claim under Section 1983. In Vega, the plaintiff school teacher brought an action in the EDNY against his school district and two administrators alleging claims for “discrimination and retaliation claims under Title VII of the...


Posted: August 24, 2015

Second Circuit Holds that Applying for ACA Accommodation is not a Substantial Burden Violating RFRA

On August 7, 2015, the Second Circuit issued a decision in Catholic Health Care System, v. Burwell, 14-427-cv, reversing the EDNY and holding that “regulations promulgated under the Patient Protection and Affordable Care Act that allow religious non-profit employers to opt out of providing contraceptive coverage do not themselves substantially burden Plaintiffs’ religious exercise in violation of the Religious Freedom...


Posted: August 19, 2015

Second Circuit Examines Accrual of Claims for Unauthorized Computer Access

On August 4, 2015, the Second Circuit issued a decision in Sewell v. Bernardin, Docket No. 14‐3143, “address[ing] a matter of first impression in” the Second “Circuit: the operation of the statutes of limitations applicable under the civil enforcement provisions of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, and the Stored Communications Act (“SCA”), 18 U.S.C. §...