Madison Square Garden may bar certain lawyers from sporting events

The Appellate Division has ruled that Madison Square Garden is legally permitted to prevent people from entering the building for sporting events. This case arises from MSG's determination that basketball and hockey fans employed by law firms that are suing MSG cannot be trusted to enter MSG (and other facilities owned by this entity, including Radio City Music Hall, Beacon Theater or Hulu Theater), even if they purchased tickets to these sporting events. This policy has made the news.

The case is Hutcher v. Madison Square Garden, issued by the First Department on March 28. MSG's appellate brief notes that MSG's policy bars certain attorneys from entering the building:

In July 2022, MSG and its affiliates formalized an internal policy, in place since late June 2022, prohibiting attorneys involved in ongoing litigation against MSG from attending events at the MSG Venues and using the MSG companies’ resources (including its Season Ticket Membership group) to purchase tickets.

MSG says this policy is necessary because of "the adversarial nature inherent in litigation; the potential for improper communication with MSG employees; and the potential for adverse counsel to obtain information outside of proper discovery channels or otherwise undermine MSG’s interests in ongoing litigation." They add, "MSG’s right to implement such a policy is based on long-standing New York law, which provides that tickets to attend events at venues are merely licenses revocable at will, and that venue operators have the discretion to exclude individuals from their premises for any reason or no reason at all." That is legalese for "we can kick people out for most any reason under the at-will doctrine." Law firms in litigation with MSG cannot access these events until the litigation is resolved.

State Supreme Court said that state law prohibits MSG from barring ticket holders for music halls and certain theatrical events. This case involves sporting events. In this case, the lower court still enjoined MSG from enforcing the policy for sporting events. I have never seen a case where the judge sides with the defendant on the merits but still issues an injunction for the plaintiff, but that's why the case went to the First Department, which reverses and rules for MSG. If the policy is legal, then no injunction may issue.

The statute, Civil Rights Law 40-b says nothing about sporting events. That means MSG's persona non grata rule is legal for sporting events. If you want to watch the Knicks or the Rangers, you'll have to watch it on TV. Why sporting events are excluded from the statute's protections probably one of those quirks we have in New York law that no one can explain. But quirks like these are legal. Here is the First Department's reasoning:

The motion court properly excluded sporting events from its holding because Civil Rights Law § 40-b is specifically limited in application to “legitimate theatres, burlesque theatres, music halls, opera houses, concert halls and circuses” Although Madison Square Garden is a multi-purpose venue that sometimes functions as a concert hall or theatre and other times as a sporting arena, we find that it only falls within the ambit of Civil Rights Law § 40-b when it is being used for an enumerated purpose.

 

 

 

Back porch search does not violate Fourth Amendment warrant requirement

This Fourth Amendment search and seizure case asks whether the police had the right to search a common-area porch at the defendant's place of residence while looking for drugs and other contraband. The warrant only said the police could search his apartment and basement. The Second Circuit says the search was legal.

The case is United States v. Lewis, issued on March 21. Bottom line: defendant cannot show that his Fourth Amendment rights extended to the porch. It all started when an informant told the police that defendant had large quantities of heroin and marijuana in defendant's bedroom in New Haven. The informant also said there was a gun in defendant's basement. The warrant therefore limited the police search to defendant's residence and the basement.

The police found drugs in the second-story apartment but they found the gun and more drugs in a sock in a laundry basket on the back porch off the ground-floor rear door which opened into a common stairwell. So the porch was not solely defendant's residence. While defendant sought to suppress the guns and the extra drugs, he had no reasonable expectation of privacy in the back porch. He did not take any steps to maintain his privacy while using the porch, either. Rather, he conceded the porch was a shared area. What it means is that defendant has no standing to object to that portion of the search. 

The Court of Appeals (Lohier, Carney and Nathan) is careful to note that it is not adopting a categorical rule that shard spaces in muti-unit buildings may be searched by the police without a warrant. The Court recognizes that in some factual circumstances, a warrant may be necessary to search these common areas. This is always a case-by-case analysis under Supreme Court precedent, including O'Connor v. Ortega, 480 U.S. 709 (1987). The Second Circuit cites a few extra-Circuit rulings in this regard. One case from the Sixth Circuit said a basement in a  two-unit building occupied solely by family members means the police cannot search the basement without a warrant. So while there is an exception to the rule that the police can search common areas like this, defendant cannot invoke that exception because he did not introduce evidence at the suppression hearing that would implicate that exception. 

NYU may have to reimburse students for remote COVID instruction

This is a case for the COVID-19 era: a parent sues New York University to recover a partial refund of her daughter's college tuition after NYU transitioned to remote learning instead of in-person classes. An NYU student also sues for breach of implied contract and unjust enrichment over these remote classes. The parent loses, but the student may proceed with the claim.

The case is Rynasko v. New York University, issued on March 23. It is not clear why plaintiff's daughter did not bring this lawsuit, but plaintiff argues that NYU marketed its educational program as a wonderful in-person experience through classes, sporting events, networking opportunities, and other programs that are not available over Zoom. When the world stopped in Spring 2020 due to COVID, these benefits of an in-person NYU education stopped as well. Yet, NYU continued charging its full tuition and fees. The student plaintiff's proposed claim makes the same allegation that NYU was unjustly enriched by charging its usual tuition without providing the same in-person services when COVID hit NYC.

As for the parent plaintiff, she lacks standing to bring this lawsuit. This plaintiff did not have a contract with NYU; her daughter did. Nor did her daughter assign her contractual rights to her mother, which means mom is not a third-party beneficiary of the contractual breach. Some lower courts in the last few years have similarly held, and now the Court of Appeals (Robinson, Park (dissenting in part) and Parker (dissenting in part)), makes this principle the law of the Second Circuit. For these reasons, the parent cannot bring an unjust enrichment claim against NYU, either. Yes, mom paid the tuition and fees, but no, "an injury to [mom's] expectation as to the services Emily would receive in exchange for the tuition payments paid to NYU on Emily's behalf pursuant to its contract with Emily is not an injury to her legally protected interest." It occurs to me that this holding could encourage more people to sue their colleges and universities to recover partial tuition reimbursements. That could be quite costly for these institutions. 

What about the student's claim against NYU? This student, Hall-Landers, is not plaintiff's daughter. The student asserts a plausible claim for breach of contract, unjust enrichment, and money "had and received." A fact-finder may find there was a breach of implied contract because the student was not able to attend NYU in-person and enjoy all the services and advantages that in-person learning and student life has to offer. We're talking implied contract here, between NYU and the students, from the NYU promotional materials which promote the benefits of the in-person college experience in New York City, the greatest city in the world. The NYU catalogue's disclaimer that the university can alter its course offerings at any time does not get NYU off the hook, as that disclaimer only deals with course offerings and not the other benefits of the NYU experience. And the law frowns upon disclaimers that give one party an unfair advantage over the other. 

Note that Judges Park and Parker dissent in part. This will not make this case a suitable vehicle for the Supreme Court, as the case appears to only raise state law issues, and the Supreme Court only addresses federal claims. But this splintered ruling may entice the full Court of Appeals to hear this case en banc. 

Can the plaintiff get damages for an unlawful incarceration lasting more than 600 days?

This guy was re-incarcerated after he violated the terms and conditions of his post-release supervision. In 2005, the Department of Corrections imposed that PRS re-incarceration. The sentencing judge did not impose that re-incarceration. The problem was that in 2006, the Court of Appeals said that only the judge can impose this PRS re-incarceration, not DOCS. In total, plaintiff spent 686 days in jail for violating the terms of his PRS after the Court of Appeals said in Early v. Murray, 451 F.3d 71 (2d Cir. 2006), that DOCS had no authority to impose the sentence. For this reason, plaintiff wants financial compensation for this unlawful incarceration. The Court of Appeals says plaintiff may be entitled to these damages. But he may not.

The case is Vincent v. Annucci, issued on March 23, more than a year after the appeal was argued. By August 31, 2006, when the Court of Appeals definitively ruled on this issue in Early, it was clearly established that plaintiff's continued PRS incarceration violated the Constitution because it was not judicially-imposed. The question, is plaintiff entitled to compensation for this?

First, qualified immunity. That immunity is available to public defendants in constitutional claims when the law was not clearly established at the time of the violation, as determined by Supreme Court and Second Circuit authority. This is an easy call for the Court of Appeals (Walker, Sullivan and Kearse in partial dissent), as the Court already said in 2013 in this very case that the defendant cannot invoke qualified immunity based on the Court's 2006 ruling in Early. The state tries to re-argue qualified immunity again, but these arguments are not going to cut it. When something is clearly established, it's clearly established until the Supreme Court says otherwise. 

What about compensatory damages? While the trial court in this case awarded plaintiff $175,000 for the unlawful confinement, its analysis was incorrect because the trial court's damages calculation was too cursory. The trial court said it was a mystery what might have happened had the DOCS commissioner referred plaintiff to re-sentencing post-Early in 2006. That reasoning was incorrect. The trial court did not consider what steps were actually available to the Commissioner in determining whether to keep plaintiff in jail for another two years after the Early ruling came down. The Commissioner might have needed court approval to eliminate the PRS term that it had imposed, which led to the post-PRS incarceration. At a minimum, the commissioner was required to at least try to stop DOCS's administrative and custodial operations that had been held to violate the law in 2006. This is all very complicated, but the moral of the story is that plaintiff's extended incarceration, which lasted more than 600 days, may not even be compensable if the state can show that there were other ways to keep him in jail post-Early. Nor did the trial court discuss plaintiff's burden of proving damages. You have to prove damages in our court system and they are not presumed just because your rights were violated. 

Facebook argument with ALJ raises tricky free speech concerns

This case highlights the complexities of the First Amendment as it governs public employees. It also highlights the danger of getting into political arguments with people on Facebook when you hold a public position that requires some degree of public trust.

The case is Davi v. Hein, a summary order issued on March 24. Plaintiff was an administrative law judge for the State of New York, resolving disputes when state issues an adverse determination on the amount of public benefits from the state's Office of Temporary and Disability Assistance (OTDA).  Plaintiff got into an argument on Facebook with a former law school classmate about the effectiveness of some public assistance programs. Plaintiff was critical of some of these programs. The former classmate told the Commissioner of OTDA what plaintiff had said. The classmate also told the Commissioner that she had sent the Facebook exchange to a legal aid group, Project FAIR, which represents individuals in these administrative hearings. Plaintiff was reassigned over his Facebook comments.

The district court ruling reprints the exchange. 

On October 28, 2015, Davi responded to an article that had been posted on the personal Facebook page of someone he knew. The article was from the website Daily Kos and entitled “Anti-poverty programs like food stamps are working. Let's expand them, not make more cuts.”¹ Davi and a law school classmate, Erin Lloyd, then had an argument in the comments of the Facebook post. Both the Facebook post and the argument appear not to have been accessible to the general public. ECF No. 83-8 at 105–07. Because the context is significant, I reproduce the relevant portion of their conversation verbatim (without correcting spelling or grammar):

*303 DAVI: This article and the underlying study use the wrong metric. These programs should be judge by how many people or families they get back on their feet and off government assistance, not how well these programs enable their recipients to be poor and collect government assistance for the rest of their lies.

LLOYD: “enable their recipients to be poor” – RIGHT! of course! people who need $150/mo to get their basic food needs met are just being ENABLED! The goal of any public assistance program should be to AID the poor. It's the job of politicians and employers to ... [See more]²

DAVI: Says who? Where does it say ANY of that in the Constitution? It is not the government's job to subsidize laziness and failure. I agree that there should most certainly be a safety net, but it should be of limited duration and designed to get people back to self-sufficiency. But I have zero sympathy for anyone who refuses to work and/or get the education or training to earn a living wage.

This country has turned welfare into a generational career path!

At this point, the conversation turned personal and nasty. Lloyd told the plaintiff “I remember your bullshit from law school, so I've got no patience for you. Who brought up the constitution? Not me. I didn't say a word about the law. I'm talking MORALS, my friend.” Davi responded: “If you are going to be that nasty then fuck you, too. Your ‘morals’ suck because they create an underclass dependent on government handouts that translates into generational poverty, while at the same time taxing productive members of our society to the breaking point.” ECF No. 83-1 at 4.

Davi v. Roberts, No. 16-CV-5060 (ERK), 2021 WL 810282 (E.D.N.Y. Mar. 3, 2021), order clarified on reconsideration, No. 16-CV-5060 (ERK), 2021 WL 2184873 (E.D.N.Y. May 28, 2021)

On October 28, 2015, Davi responded to an article that had been posted on the personal Facebook page of someone he knew. The article was from the website Daily Kos and entitled “Anti-poverty programs like food stamps are working. Let's expand them, not make more cuts.” Davi and a law school classmate, Erin Lloyd, then had an argument in the comments of the Facebook post. Both the Facebook post and the argument appear not to have been accessible to the general public. 

DAVI: This article and the underlying study use the wrong metric. These programs should be judge by how many people or families they get back on their feet and off government assistance, not how well these programs enable their recipients to be poor and collect government assistance for the rest of their lies.

LLOYD: “enable their recipients to be poor” – RIGHT! of course! people who need $150/mo to get their basic food needs met are just being ENABLED! The goal of any public assistance program should be to AID the poor. It's the job of politicians and employers to. . .

DAVI: Says who? Where does it say ANY of that in the Constitution? It is not the government's job to subsidize laziness and failure. I agree that there should most certainly be a safety net, but it should be of limited duration and designed to get people back to self-sufficiency. But I have zero sympathy for anyone who refuses to work and/or get the education or training to earn a living wage.

This country has turned welfare into a generational career path!

The district court then noted that, "At this point, the conversation turned personal and nasty." Here is what happened:

Lloyd told the plaintiff “I remember your bullshit from law school, so I've got no patience for you. Who brought up the constitution? Not me. I didn't say a word about the law. I'm talking MORALS, my friend.” Davi responded: “If you are going to be that nasty then fuck you, too. Your ‘morals’ suck because they create an underclass dependent on government handouts that translates into generational poverty, while at the same time taxing productive members of our society to the breaking point.”

DAVI: This article and the underlying study use the wrong metric. These programs should be judge by how many people or families they get back on their feet and off government assistance, not how well these programs enable their recipients to be poor and collect government assistance for the rest of their lies.

LLOYD: “enable their recipients to be poor” – RIGHT! of course! people who need $150/mo to get their basic food needs met are just being ENABLED! The goal of any public assistance program should be to AID the poor. It's the job of politicians and employers to ... [See more]²

DAVI: Says who? Where does it say ANY of that in the Constitution? It is not the government's job to subsidize laziness and failure. I agree that there should most certainly be a safety net, but it should be of limited duration and designed to get people back to self-sufficiency. But I have zero sympathy for anyone who refuses to work and/or get the education or training to earn a living wage.

This country has turned welfare into a generational career path!

At this point, the conversation turned personal and nasty. Lloyd told the plaintiff “I remember your bullshit from law school, so I've got no patience for you. Who brought up the constitution? Not me. I didn't say a word about the law. I'm talking MORALS, my friend.” Davi responded: “If you are going to be that nasty then fuck you, too. Your ‘morals’ suck because they create an underclass dependent on government handouts that translates into generational poverty, while at the same time taxing productive members of our society to the breaking point.” ECF No. 83-1 at 4.

Davi v. Roberts, No. 16-CV-5060 (ERK), 2021 WL 810282 (E.D.N.Y. Mar. 3, 2021), order clarified on reconsideration, No. 16-CV-5060 (ERK), 2021 WL 2184873 (E.D.N.Y. May 28, 2021)

*303 DAVI: This article and the underlying study use the wrong metric. These programs should be judge by how many people or families they get back on their feet and off government assistance, not how well these programs enable their recipients to be poor and collect government assistance for the rest of their lies.

LLOYD: “enable their recipients to be poor” – RIGHT! of course! people who need $150/mo to get their basic food needs met are just being ENABLED! The goal of any public assistance program should be to AID the poor. It's the job of politicians and employers to ... [See more]²

DAVI: Says who? Where does it say ANY of that in the Constitution? It is not the government's job to subsidize laziness and failure. I agree that there should most certainly be a safety net, but it should be of limited duration and designed to get people back to self-sufficiency. But I have zero sympathy for anyone who refuses to work and/or get the education or training to earn a living wage.

This country has turned welfare into a generational career path!

At this point, the conversation turned personal and nasty. Lloyd told the plaintiff “I remember your bullshit from law school, so I've got no patience for you. Who brought up the constitution? Not me. I didn't say a word about the law. I'm talking MORALS, my friend.” Davi responded: “If you are going to be that nasty then fuck you, too. Your ‘morals’ suck because they create an underclass dependent on government handouts that translates into generational poverty, while at the same time taxing productive members of our society to the breaking point.” ECF No. 83-1 at 4.

Davi v. Roberts, No. 16-CV-5060 (ERK), 2021 WL 810282 (E.D.N.Y. Mar. 3, 2021), order clarified on reconsideration, No. 16-CV-5060 (ERK), 2021 WL 2184873 (E.D.N.Y. May 28, 2021)

Public employees have the right to free speech on matters of public concern. But a series of Supreme Court rulings over the years allows public employers to discipline and even fire public employees if their public speech "would potentially interfere with or disrupt the government's activities" and that potential disruptiveness "was sufficient to outweigh the First Amendment value of that speech." This is known as Pickering balancing, named after a Supreme Court ruling from 1968.

While the district court ruled in plaintiff's favor and ordered plaintiff's reinstatement to his position as an administrative law judge, the Court of Appeals (Sack, Perez and Lohier) remands the case for the trial court to reconsider that result, as the appellate judges do not believe the trial court sufficiently considered the state's interest in dealing with the potential impact of Plaintiff's Facebook comments. It is possible, then, that plaintiff can lose the case if the district court finds that Plaintiff's speech, if discovered by the public, "would undermine OTDA's reputation by suggesting that its hearing officers were biased or unprofessional."

Supreme Court rules for disabled student who wants damages under Americans with Disabilities Act

The Supreme Court has ruled that a federal student disability statute does not require aggrieved students to administratively exhaust their claims before filing suit in federal court, but only in certain circumstances unique to this case.

The case is Perez v. Sturgis Public Schools, issued on March 21. The Individuals with Disabilities Education Act (IDEA) is a comprehensive statute that allows disabled public school students to enjoy an appropriate education. It requires the school districts to devise an individualized education plan for the disabled student, and if the parents and school district disagree about the plan, they can litigate this dispute at an evidentiary hearing. Normally, the losing party has to appeal to a state education official to change the result before they can litigate the case in federal court. 

My experience in this area is that federal courts are loathe to find exceptions to the administrative exhaustion rule. This frustrates the parents of disabled students who want to bring suit in court rather than wait for the state education official to rule on any objections. But this case is different. 

The student in this case is hearing-impaired. His parents allege that the district's efforts to help their son were ineffective. The parties settled that dispute after the parents filed a complaint with the Michigan Department of Education. After that dispute settled, the family brought suit in federal court under the Americans with Disabilities Act, seeking damages for the civil rights violation that their son experienced. The district moved to dismiss that lawsuit, claiming the parents did not first file an administrative complaint with the state. This is the administrative exhaustion argument. The district court and Court of Appeals agreed with the district and the case was dismissed. The Supreme Court unanimously reverses and the case returns to the docket.

The plaintiffs in this case can sue directly in court for damages under the ADA, the Court says, because the IDEA does not provide for these damages for pain and suffering. If the IDEA does not provide for that remedy, then exhausting administrative remedies through the state educational system is pointless. The Supreme Court provides some statutory analysis to arrive at this result, demonstrating once again that statutes need to be carefully analyzed with an eye toward context before we can know what Congress intended when the statute was enacted. Not to bore you, but this analysis has to do with interpreting the words "remedies" and "relief" under the IDEA.

Federal whistleblower claim is dismissed because plaintiff did not file administrative complaint

The Court of Appeals holds that a plaintiff who wants to sue the Federal Energy Regulatory Commission for retaliation over his whistleblowing cannot do so because he did not initially file an administrative complaint under the Whistleblower Protection Act.

The case is Chinniah v. Federal Energy Regulatory Commission, issued on March 15. Plaintiff says he was fired shortly after he told management that a coworker was signing in for work but not actually working. Under the Whistleblower Protection Act, federal civil servants cannot suffer retaliation for reporting certain forms of rulebreaking or mismanagement, wasted money, or substantial and specific dangers to public health. Time theft might not be as serious as threats to public health, but it looks like plaintiff is arguing that that kind of rule-breaking falls within the WPA's protections. 

If plaintiff has a legitimate case, we will never know, because other Circuits have held that the Civil Service Reform Act of 1978 requires that whistleblower file an administrative complaint with the Office of Special Counsel and then to the Merit Systems Protection Board before they can proceed in court. The WPA is part of the Civil Service Reform Act and the Ninth Circuit held in 2016 that both statures "are integrated into a single statutory scheme." Other Circuits have already held that cases like this must first be litigated administratively before you can file in court.  The Second Circuit adopts the reasoning in those cases and holds the district court lacked subject matter jurisdiction to hear the case.