Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC

16-1216-cv Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of February, two thousand seventeen.

PRESENT: REENA RAGGI, RAYMOND J. LOHIER, JR., CHRISTOPHER F. DRONEY, Circuit Judges. ---------------------------------------------------------------------- ROMEO & JULIETTE LASER HAIR REMOVAL, INC. d/b/a ROMEO & JULIETTE HAIR REMOVAL, Plaintiff-Appellee,

v. No. 16-1216-cv

ASSARA I LLC, d/b/a ASSARA LASER CENTER NYC, WILL SHUMAN, Defendants-Appellants,

ASSARA LASER, MANHATTAN LASER HAIR REMOVAL, JAY SHUMAN a/k/a JEROME SHUMAN, DR. SAM TAYAR, DAVID TAYAR, Defendants.* ---------------------------------------------------------------------- APPEARING FOR APPELLANTS: WILL SHUMAN, Esq., New York, New York.

* The Clerk of Court is directed to amend the case caption as set forth above.

1 APPEARING FOR APPELLEE: CLAUDIA G. JAFFE (David K. Fiveson, on the brief), Butler, Fitzgerald, Fiveson & McCarthy, P.C., New York, New York.

Appeal from a judgment of the United States District Court for Southern District

of New York (Denise L. Cote, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on May 20, 2016, is AFFIRMED.

Defendants Assara I LLC (“Assara”) and Will Shuman appeal from a permanent

injunction granted on summary judgment to plaintiff Romeo & Juliette Laser Hair

Removal, Inc. (“R&J”) as to state common-law and federal claims of unfair competition,

disparagement, and defamation. See 15 U.S.C. § 1125(a). Defendants argue that the

district court erred in granting injunctive relief and in fashioning an overbroad injunction

while denying their motion to dismiss on mootness grounds. We review the district

court’s summary judgment award, denial of dismissal, and legal conclusions regarding

injunctive relief de novo. See Expressions Hair Design v. Schneiderman, 808 F.3d 118,

127 (2d Cir. 2015); Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d 166, 176

(2d Cir. 2013). We review the grant of a permanent injunction for abuse of discretion.

See Expressions Hair Design, 808 F.3d at 127. Insofar as defendants further appeal an

award of attorneys’ fees to R&J, we review a decision awarding fees for a violation of 15

U.S.C. § 1125(a) for abuse of discretion. See 15 U.S.C. § 1117(a); Patsy’s Italian Rest.,

Inc. v. Banas, 658 F.3d 254, 268 (2d Cir. 2011). We assume the parties’ familiarity

2 with the facts and record of prior proceedings, which we reference only as necessary to

explain our decision to affirm.

1. Injunctive Relief

Defendants argue principally that R&J failed to demonstrate the present or future

injury necessary for injunctive relief because (a) no negative comments about R&J were

posted after 2009, and (b) Assara allegedly went out of business in 2015. See eBay Inc.

v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (holding that grant of permanent

injunction requires (1) irreparable injury, (2) inadequacy of other remedies, (3) that

injunction be “warranted” given balance of hardships, and (4) that public interest would

not be disserved). 1 Presuming that this argument is not precluded by defendants’

covenant not to publish statements regarding R&J’s business, it fails as a matter of law.

Even if Assara has closed and the challenged postings ceased before this litigation

concluded (a matter R&J contests), the record shows that defendants could reopen Assara

and return to their prior business practices, an inference supported by the continued

registration of Assara as an active business entity, maintenance of a fully operational

website,2 and correspondence suggesting defendants’ contemplated purchase of a laser

1 Defendants’ argument that no liability judgment could be entered in favor of R&J because it had abandoned its damages claims merits no discussion because R&J’s injunctive-relief claim required success on the merits. See Davis v. Shah, 821 F.3d 231, 243 (2d Cir. 2016). 2 See Assara: Beauty Perfected, http://www.assaralaserhairremoval.com (last visited Feb. 13, 2017); see also Search the Corporation & Business Entity Database, New York State Dep’t of State, Div. of Corps., State Records & UCC, https://www.dos.ny.gov/corps/

3 hair-removal machine as recently as November 2015. Defendants’ self-serving

representation that they would not reopen a competing business or further defame R&J

was not enough to raise a triable issue of fact regarding injury, particularly where, as

here, defendants were shown to have falsely denied being the source of the challenged

defamatory postings, and defendants’ counsel had been sanctioned for misrepresentations

to the magistrate judge.

2. Mootness

For substantially the same reasons, R&J’s application for injunctive relief was not

moot. No different conclusion is warranted by defendants’ covenant not to compete and

to cease making public comments regarding R&J because that unnotarized document

bears misdated signatures, is not signed by R&J, and was not offered until after R&J

moved for summary judgment. Thus, as a matter of law, it could not be found to make

“absolutely clear” that no further defamatory behavior could reasonably be expected to

recur. Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581, 603 (2d Cir. 2016)

(emphasis in original) (internal quotation marks omitted).

3. Unclean-Hands and Laches Defenses

Defendants fault the district court’s rejection of their unclean-hands and laches

defenses. The former argument fails because that defense rested on allegations that R&J

inflated its own on-line customer reviews, conduct unrelated to the defamatory postings

at issue. See Dunlop-McCullen v. Local 1-S, AFL-CIO-CLC, 149 F.3d 85, 90 (2d Cir.

bus_entity_search.html (last visited Feb. 13, 2017) (enter “Assara” under “Business Entity Name,” then press “Search Database”).

4 1998) (stating that “misconduct unrelated to the claim to which it is asserted as a defense,

does not constitute unclean hands” (alterations and internal quotation marks omitted)).

As to laches, defendants fail to show that they have been prejudiced by plaintiff’s delay

in formally suing for injunctive relief from the start because this litigation placed

defendants on clear notice that R&J wished the challenged postings to stop. See

ProFitness Physical Therapy Ctr. v. Pro-Fit Orthopedic & Sports Physical Therapy P.C.,

314 F.3d 62, 67–68 (2d Cir. 2002).

In sum, we identify no error either in the district court’s grant of a permanent

injunction or in its denial of dismissal.

4. Scope of Injunctive Relief

Defendants challenge the injunction granted as void for vagueness and violative of

the First Amendment. The argument fails because the injunction’s prohibition on

speech that is false, misleading, defamatory, or disparaging effectively enforces

defendants’ own covenant not to engage in such speech. See Safelite Grp., Inc. v.

Jepsen, 764 F.3d 258, 261 (2d Cir. 2014) (stating that government’s prohibition of

“commercial speech that is false, deceptive, or misleading” does not violate First

Amendment (internal quotation marks omitted)); Democratic Nat’l Comm. v. Republican

Nat’l Comm., 673 F.3d 192, 204–05 (3d Cir. 2012) (noting that parties may waive First

Amendment challenge by knowingly and voluntarily entering into decree restricting

speech); see generally In re Refco Inc., 505 F.3d 109, 120 (2d Cir. 2007) (stating that

party consenting to relief is “deemed to waive any objections” thereto (internal quotation

5 marks omitted)). Indeed, the injunction is narrower than the covenant, which could be

construed as defendants’ agreement not to make any public statements regarding R&J’s

business, regardless of their nature.

To the extent defendants object to the absence of a time limit, they offer no reason,

in light of their prior business and litigation conduct, why a limited term should have

been required. Cf. ClearOne Commc’ns, Inc. v. Bowers, 643 F.3d 735, 753 (10th Cir.

2011) (concluding that appellants’ “contemptuous conduct” occurring after trial “clearly

support[ed]” entering injunction of unlimited duration).

Defendants also challenge the injunction as vague or overbroad in enjoining its

“successors and assigns.” App’x 323. But that language merely safeguards against

circumvention of the injunction. See New York ex rel. Vacco v. Operation Rescue Nat’l,

80 F.3d 64, 70 (2d Cir. 1996) (recognizing that, “in appropriate circumstances,”

injunction may be “enforced against those to whom the business may have been

transferred,” such as “[s]uccessors and assigns” (internal quotation marks omitted)); see

also Fed. R. Civ. P. 65(d)(2)(C) (deeming injunctions binding against those “in active

concert or participation” with named parties).

Accordingly, defendants’ overbreadth challenge fails on the merits.

6 5. Attorneys’ Fees

While defendants purport to appeal the district court’s award of attorneys’ fees,

they mention it only in passing and do not explain how or why the district court erred.3

That does not suffice to raise the matter for our consideration. See Gross v. Rell, 585

F.3d 72, 95 (2d Cir. 2009) (“Merely mentioning [a] relevant issue in an opening brief is

not enough; issues not sufficiently argued . . . will not be considered on appeal.” (internal

quotation marks and alteration omitted)). Accordingly, the district court’s fees order is

affirmed.

6. Conclusion

We have considered defendants’ other arguments and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

3 The $30,000 fee award was in addition to Shuman’s $1,000 fine for lying to the magistrate judge and the $6,945 in attorneys’ fees awarded in connection with R&J’s motion to compel.

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