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Associated Bank Sues Merchant Lender Absent From Locked Courtroom of SDNY Judge Woods

By Matthew Russell Lee, Patreon, Periscope

SDNY COURTHOUSE, July 31 – Wisconsin's Associated Bank is suing a merchant lender Capcall in the U.S. District Court for the Southern District of New York. But on July 31, Capcall didn't show up and at first the courtroom of SDNY Judge Gregory H. Woods was locked.

  Inner City Press, which covers banks as well as the SDNY court, went Courtroom 12C at the appointed time, July 31 at 3:30 pm. But the door was locked. Soon Associated Bank's lawyer, Laurie Belony of Bryan Cave, showed up. She wanted to call Judge Woods' deputy or chamber but had been required to leave her phone downstairs, as Inner City Press was for months.

  Inner City Press lent her its phone, and soon Judge Woods' Deputy confirmed that the conference was on, it had been forgotten but that did not excuse the defendant for not showing up.

 The usually hyper-organized Judge Woods took to the bench at 3:55 pm, just before a 4 pm pre-trial conference in another, criminal case, and read into the record that the defendant had not shown up. He gave them a deadline of August 23. The case is Associated Bank v. Capcall LLC, 19-cv-5158 (GHW).

Back on July 1 as reported only by Inner City Press, Hearst Communications, Inc. lost its bid to block the issuance of a subpoena for its chief legal officer Eve Burton to have to testify in a July 15 trial of copyright claims to a photo of President Donald J. Trump crashing a wedding. But now after the plaintiff accepted a substitute witness Eva Saketkoo, he was awarded only $750, something then reported by others.

  After oral argument on July 1, in which Hearst's lawyers told U.S. District Court for the Southern District of New York Judge Gregory H. Woods that Ms. Burton is simply too busy to testify, and in any event has no direct knowledge of the copyright training program at issue, Judge Woods issued an oral ruling denying Hearst's motion in limine.

  First, Judge Woods noted that the so-called "Apex Witness" doctrine Hearst relied on applies to taking depositions of senior officials, not to trial testimony. Then, more colloquially, he asked the Hearst lawyer what it would cost, beyond the cost of a subway ride from 57th Street, a short walk and an hour of testimony.

   The Hearst lawyer said that these things - presumably meaning taking the stand in a trial - have a way of eating up more time than anticipated.

By July 11, the Liebowitz Law Firm had agreed to Hearst's substitution of Eva for Eve. Then Judge Woods awarded only $750 in statutory damages, in an order that is not yet live on the PACER terminal at which Inner City Press has been working for months. The case is Otto v. Hearst Communications, Inc. 17-cv-4712 (Woods).

  Plaintiff photograph Jonathan Otto's lawyer cited as precedent a case in which a BuzzFeed official had to testify. Hearst's lawyer replied that BuzzFeed is "tiny," noting that Hearst has an investment in it.

   Ass Inner City Press reported in May 2019, BuzzFeed Media is being sued, rather routinely, for using a Florida photographer's aerial shot of Miami's American Airlines Arena, see below. And on May 28 into the SDNY, otherwise occupied with Michael Avenatti, came the case of's use of a Himalayan Dog photo by photographer Sebastian Wahlhuetter. The publication took place in 2016, in an article entitled "20 Random Reddit Photos Turned Into Epid Movie Posters." But the lawsuit was filed in February 2019. College Humor was ordered by SDNY Judge Lorna G. Schofield to respond by May 20, but there is no response in the docket as of the May 28 hearing date. The case is 19-cv-2501, Jury Trial Demanded. Now the demand is for $3,000 in damages, $10,000 in statutory damages, $2037.50 in attorneys' fees and $475 in costs and, of course, interest. This is the SDNY.

   On May 14 Gizmodo was sued, by photographer David McGlynn, for using his photo of Malcoln Abbott which ran in the New York Post on March 13, 2019, in a story about the Varsity Blues scandal.

  L'affaire Gizmodo has been assigned tp U.S. District Court for the Southern District of New York Judge Alison J. Nathan, who recently presided over SEC v. Elon Musk. Might her approach to DMCA claims be different than fellow SDNY Judge Vernon Broderick?

On May 10 BuzzFeed's lawyer argued that under the Digital Millennium Copyright Act they can demand attorney's fees from the photographer, even if they lose, if the judgment is less than what they have offered.  That case is Myeress v BuzzFeed Inc, 18-cv-2365 (VSB).

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                        SDNY courthouse, Worth St entrance, (c) Inner
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