Blawgletter hasn't hidden our liking for the cut of the Second Circuit's jib. We admire lots of things about the court. This week, three panels confirmed our High Opinion.
Let's see . . . one involved whether an antitrust complaint met the Twombly/Iqbal standard for pleading a "plausible" conspiracy, the second dealt with the use of video that belongs to others on YouTube, and the third concerned Texas lawyers who used hardball tactics to pre-empt a New York arbitration.
In Anderson News, L.L.C. v. Am. Media, Inc., No. 10-4591-cv (2d Cir. Apr. 3, 2012), Their Honors ruled that the district court erred in holding that the complaint failed to allege a "plausible" conspiracy among magazine publishers to punish a wholesaler for asking them to pay a "surcharge" for handling the magazines that didn't sell. "The question at the pleading stage is not whether there is a plausible alternative to the plaintiff's theory; the question is whether there are suficient factual allegations to make the complaint's claim plausible." Id. at 37.
The panel in Viacom Int'l, Inc. v. YouTube, Inc., No. 10-3270-cv (2d Cir. Apr. 5, 2012), revived a class action complaint against YouTube under the Digital Millennium Copyright Act. Unlike the district court, the appeals court held that YouTube didn't prove its right to a "safe harbor" under section 512(c) of the DMCA. It sent the case back for more attention to, among other things, evidence of (a) actual awareness by YouTube's founders of infringing clips and (b) YouTube's "willful blindness" to the posting of such clips on YouTube.
And Enmon v. Prospect Capital Corp., No. 10-2811-cv (2d Cir. Apr. 6, 2012), upheld sanctions (including more than $350,000 in fees) against a law firm in Houston, Arnold & Itkin, for over-the-top efforts to thwart an arbitration in New York by means of a temporary restraining order from a Texas state court and what the court deemed meritless challenges to the arbitral award against the firm's client.