This month, we discuss Barclays Capital Inc. v. Flyonthewall.com,1 a closely watched case in which the U.S. Court of Appeals for the Second Circuit held that the federal Copyright Act preempted a state-law “hot-news” misappropriation claim. The majority opinion, written by Circuit Judge Robert Sack and joined by Circuit Judge Rosemary Pooler, rejected as dictum a frequently cited test from an earlier Second Circuit opinion. Circuit Judge Reena Raggi concurred in the result, agreeing that the “hot-news” claim was preempted, but disagreeing with the panel majority’s decision to abandon the court’s previously articulated test.
Background
Plaintiffs are three financial services firms: Barclays Capital, Merrill Lynch, and Morgan Stanley. The firms regularly prepare research reports on publicly traded companies. The reports sometimes make a stock recommendation that is the subject of the report.
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