Notable opinions
Doe v. Trump Corporation,6 F.4th 400 (2d Cir. 2021):Sack,writing for the panel,held that defendants Trump Corporation,Donald J. Trump,and members of his family were not entitled to have the district court enforce an arbitration agreement in a suit for unfair business practices and deceptive statements regarding a multi-level marketing company.
United States v. Ceasar,10 F.4th 66 (2d Cir. 2021):Sack,writing for the panel,held that a sentence of 46 months' imprisonment for a defendant who pled guilty to providing material support to the Islamic State of Iraq and Syria was shockingly low and thus substantively unreasonable,when the defendant had already exhibited recidivist behavior while awaiting sentencing and faced a Guidelines range of 360 to 600 months' imprisonment.
Badilla v. Midwest Air Traffic Control Service,Inc.,8 F.4th 105 (2d Cir. 2021):Sack and Lohier,writing for the panel,held that state-law wrongful death claims against an air traffic controller for negligently causing a civilian flight to crash into a mountain near Kabul Afghanistan International Airport were not preempted by the combatant activities exception to the Federal Tort Claims Act,and that factual disputes remained regarding breach of duty of care and proximate cause.
Chamberlain Estate of Chamberlain v. City of White Plains,960 F.3d 100 (2d Cir. 2020):Sack and Hall,writing for the panel,reinstated claims for unlawful entry,excessive force,and supervisory liability against officer-defendants who fatally shot a U.S. Marine veteran with mental illness after the officers forced their entry into his apartment.
United States v. Napout,963 F.3d 163 (2d Cir. 2020):Sack,writing for the panel,affirmed convictions of two International Federation of Association Football (FIFA) officials for multiple counts of fraud conspiracy,concluding that the convictions rested upon permissible domestic applications of the federal wire fraud statute and rejecting defendants' arguments that the honest services fraud statute is unconstitutionally vague as applied to them.
In re Bernard L. Madoff Investment Securities LLC,976 F.3d 184 (2d Cir. 2020):Sack,writing for the panel,held that transfers of fictitious profit from the Madoff Ponzi scheme were not "for value" for purposes of the fraudulent transfer provision of the Bankruptcy Code,so bankruptcy trustee for Bernard L. Madoff Investment Securities LLC was entitled to recover those funds.
Compania Embotelladora Del Pacifico,S.A. v. Pepsi Cola Company,976 F.3d 239 (2d Cir. 2020):Sack,writing for the panel,held that an "exclusive bottler appointment" contract between Pepsi Cola and one of its bottlers in Peru contained no clear statement of perpetuity and was thus terminable at will.
Sleepy's LLC v. Select Comfort Wholsesale Corp.,909 F.3d 519 (2d Cir. 2018):Sack,writing for the panel,held that mattress manufacturer's allegedly defamatory statements to retailer's agents could satisfy the publication element of a slander claim,and that remand was necessary for the district court to consider whether the retailer consented to the utterance of those allegedly slanderous statements.
Peterson v. Islamic Republic of Iran,876 F.3d 63 (2d Cir. 2017):Sack,writing for the panel,vacated in part a district court order dismissing claims by judgment creditors against Iran and Iran's Ministry of Intelligence and Security;Sack held that certain of the judgment creditors were not bound by a settlement agreement releasing Iran's central bank from liability,and that the bond proceeds held by a Luxembourg bank on behalf of Iran's central bank were not immune from execution under the Foreign Sovereign Immunities Act.
Perez v. City of New York,832 F.3d 120 (2d Cir. 2016):Sack,writing for the panel,held that fact issues precluded summary judgment as to whether donning and doffing activities by urban park rangers were "integral and indispensable," as required to be compensable under the Fair Labor Standards Act.
In re Arab Bank,PLC Alien Tort Statute Litigation,808 F.3d 144 (2d Cir. 2015):Sack,writing for the panel,held that the Alien Tort Statute did not confer original jurisdiction over claims of terrorism victims against bank that allegedly financed and facilitated organizations who committed attacks in Israel,the West Bank,and the Gaza Strip.
Turley v. ISG Lackawanna,Inc.,774 F.3d 140 (2d Cir. 2014):Sack,writing for the panel,held that the evidence supported an intentional infliction of emotional distress verdict,where an African-American steelworker was subject to an abusive work environment replete with racial insults,intimidation,and degradation;jury's award of $1.32 million in compensatory damages was proper,although award of $24 million in punitive damages,which was later remitted to $5 million,was excessive.
Bailey v. Pataki,708 F.3d 391 (2d Cir. 2013):Sack,writing for the panel,held that the due process right to notice and an adversarial hearing prior to involuntary civil commitment to a psychiatric facility was clearly established,and thus defendants,who included the former Governor of New York and various state officials,were not entitled to qualified immunity.
Marvel Characters,Inc. v. Kirby,726 F.3d 119 (2d Cir. 2013):Sack,writing for the panel,held that children of influential comic book artist Jack Kirby,who produced drawings for Marvel Comics,had no rights to Kirby's works between 1958 and 1963 because those drawings were "works made for hire" within the meaning of the Copyright Act of 1976.
United States v. Stewart,686 F.3d 156 (2d Cir. 2012) (Stewart II):Sack,writing for the panel,held that in the resentencing of Lynne Stewart,her First Amendment rights were not abridged when the district court considered her public statements as a basis for quadrupling her original sentence;such use of public statements did not impermissibly chill speech.
Barclays Capital,Inc. v. Theflyonthewall.com,650 F.3d 876 (2d Cir. 2011):Sack,writing for the panel,concluded that the tort of hot news misappropriation was preempted by the Copyright Act as applied to the facts of the instant case,which concerned a novel lawsuit by various investment banks,which publish and disseminate equity research reports,against a small Internet-based aggregator of stock tips which sold the investment banks' recommendations to its own clients.
United States v. Stewart,590 F.3d 93 (2d Cir. 2009) (Stewart I):Sack,writing for a majority of the panel,affirmed the convictions of Lynne Stewart,the former attorney for "Blind Sheik" Omar Abdel-Rahman,on various counts including conspiracy,providing material support to terrorists,and defrauding the U.S. government,arising out of her conduct in knowingly passing information between her client and his supporters in Egypt in violation of government-ordered "special administrative measures". The panel also vacated her sentence and remanded for re-sentencing in light of Stewart's possible perjury at her trial as well as intervening factual developments in the case.
Arar v. Ashcroft,585 F.3d 559 (2d Cir. 2009):Sack,dissenting in part from the majority opinion en banc,wrote that a Bivens remedy should have been available to a dual Canadian-Syrian citizen who was detained by federal officials at John F. Kennedy airport,repeatedly denied access to a lawyer,and subsequently removed to Syria to be interrogated under torture by Syrian authorities for ten months.
Best Van Lines,Inc. v. Walker,490 F.3d 239 (2d Cir. 2007):Sack,writing for the panel,held that under New York law,making defamatory statements outside New York about New York citizens did not,without more,provide a basis for jurisdiction,even if the statements were published in a media accessible to New York readers.
Blanch v. Koons,467 F.3d 244 (2d Cir. 2006):Sack,writing for the panel,affirmed the district court's decision that artist Jeff Koons was protected by the doctrine of fair use,and therefore not liable for copyright infringement,when he incorporated a photographer's copyrighted photo of a woman's feet and lower legs into a larger collage painting,even though Koons had benefited commercially from the work.
Leebaert v. Harrington,332 F.3d 134 (2d Cir. 2003):Sack,writing for the panel,decided that a public school's requirement that students attend health-education classes did not violate principles of substantive due process or religious rights of parents who disagreed with the school's curriculum.
Doe v. Department of Public Safety on Behalf of Henry C. Lee,271 F.3d 38 (2d Cir. 2001):Sack,writing for the panel,held that a Connecticut sex-offender registration law violated the Due Process Clause of the Fourteenth Amendment,under a "stigma plus" theory,by authorizing public dissemination of information about sex offenders on the registry without first offering them an individualized hearing about whether they were likely to be dangerous.
DeStefano v. Emergency Housing Group,Inc.,247 F.3d 397 (2d Cir. 2001):Sack,writing for the panel,decided that a state does not violate the Establishment Clause of the First Amendment by providing public funding to a private facility that also offers Alcoholics Anonymous (AA) sessions,which are religious in nature,so long as the staff does not require clients to attend AA sessions.
McMenemy v. Rochester,N.Y.,241 F.3d 279 (2d Cir. 2001):Sack,writing for the panel,decided that Title VII of the Civil Rights Act of 1964 renders unlawful retaliation by an employer against an employee who opposes any unlawful employment practice involving any employer,not just the employee's own employer,so long as the employee establishes a causal connection between the retaliation and the employee's protected activity.
Commodity Futures Trading Commission v. Vartuli,228 F.3d 94 (2d Cir. 2000):Sack,writing for the panel,concluded that a seller of an automatic-trading software program that instructs the user when to buy or sell currency futures is a "commodity trading advisor" under the Commodity Exchange Act (CEA),and that the Act,as applied to that seller,did not violate the First Amendment.
