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

Filing 281

OPINION AND ORDER.....The plaintiffs April 6, 2015 summary judgment motion is granted as to liability on Counts Five, Six, Seven, Eight, and Nine against defendants Assara and Will Shuman, and otherwise denied. An injunction shall issue against thes e defendants pursuant to this Opinion. The plaintiffs motion is denied as to the remaining defendants. The defendants June 8, 2015 motion for summary judgment is granted as to defendants Jay Shuman and Dr. Sam Tayar, and otherwise denied. The defendants February 9, 2016 motion to dismiss is denied. A separate Order will be issued as to the plaintiffs remaining claims and the proceedings against David Tayar. (Signed by Judge Denise L. Cote on 2/29/2016) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
ROMEO & JULIETTE LASER HAIR REMOVAL,
:
INC. d/b/a ROMEO & JULIETTE HAIR
:
REMOVAL,
:
:
Plaintiff,
:
:
-v:
:
ASSARA I LLC, d/b/a ASSARA LASER
:
CENTER NYC, ASSARA LASER and MANHATTAN :
LASER HAIR REMOVAL, JAY SHUMAN a/k/a
:
JEROME SHUMAN, WILL SHUMAN, DR. SAM
:
TAYER, and DAVID TAYER,
:
:
Defendants.
:
-------------------------------------- X

08cv0442(DLC)
OPINION & ORDER

APPEARANCES
For plaintiff:
David K. Fiveson
Claudia G. Jaffe
BUTLER, FITZGERALD, FIVESON & McCARTHY, P.C.
9 East 45th Street, Ninth Floor
New York, NY 10017
For defendants:
Will Shuman
160 First Avenue, Suite 5B
New York, NY 10009
DENISE COTE, District Judge:
This lawsuit spans eight years of contentious litigation.
Plaintiff Romeo & Juliette Laser Hair Removal, Inc., d/b/a Romeo
& Juliette Hair Removal (“Romeo & Juliette”) brought this
lawsuit against defendants Assara I LLC, d/b/a Assara Laser

Center NYC and Manhattan Laser Hair Removal (“Assara”), Jay
Shuman (“Jay”), Will Shuman (“Shuman”), Dr. Sam Tayar (“Dr.
Tayar”), and David Tayar (“Tayar”) on January 17, 2008.

The

parties filed cross-motions for summary judgment in 2015.
On January 14, 2016, this action was transferred to this
Court’s docket.

Following a conference with the parties, the

defendants filed a motion to dismiss on the ground that the
litigation is moot.

For the following reasons, the defendants’
The plaintiff’s motion for summary

motion to dismiss is denied.

judgment is granted against defendants Assara and Shuman only.
An injunction will be separately issued as to these two
defendants.

The defendants’ motion for summary judgment is

granted only as to defendants Jay and Dr. Tayar.
BACKGROUND
The following facts are undisputed or taken in the light
most favorable to the defendants.
I.

The Parties
Plaintiff Romeo & Juliette is a business offering laser

hair removal services operating in New York City.

The business

is wholly-owned and operated by Christian Karavolas
(“Karavolas”).

Plaintiff possesses a federal trademark for a

2

depiction of the words “Romeo & Juliette” in connection with
permanent hair removal and reduction services.1
Defendant Assara is also a laser hair removal services
business.

Defendants Tayar, Shuman, and Dr. Tayar founded

Assara, a New York limited liability company, in February 2006.2
Tayar was Assara’s first President and Chairman.3

Tayar

founded Assara while employed as a full-time associate at the
law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP (“Paul,
Weiss”).

Tayar worked at Paul, Weiss from at least January 2006

until his departure in late 2012, when he left the law firm to
join Assara as its General Counsel.

Tayar eventually disposed

of his stake in Assara.4
Defendant Shuman, who appears in this case both pro se and
as counsel for his co-defendants, was Assara’s first CEO and
General Counsel.
sole manager.

1

Shuman also testified that he was Assara’s

Like Tayar, Shuman was employed as an associate

Plaintiff also owns a related trademark.

An Assara operating agreement refers to Tayar, Shuman, and Dr.
Tayar as the “Original Founders.”
2

In February 2012, Shuman testified that Tayar was never
employed by Assara, and that his sole relationship was that of a
member.
3

The defendants have submitted conflicting statements regarding
when Tayar disposed of his stake in Assara.
4

3

at Paul, Weiss, working there from 2004 to 2005, and from 2006
to 2007.
Dr. Tayar, the first CFO and Secretary of Assara, is
Tayar’s father and resides in Canada.

By late 2006, his only

role in Assara was as an inactive investor.
Jay is Shuman’s brother.

While there is some evidence that

Jay was working on behalf of Assara as early as 2006, Shuman
asserts that Jay began his employment with Assara on March 3,
2010.5
II.

The Defendants’ Online Posts Concerning Plaintiff
Beginning in early 2006, a series of negative comments

about the plaintiff’s business appeared on the internet consumer
forums HairTell.com (“HairTell”), Yelp.com (“Yelp”),
CitySearch.com (“City Search”), and consumerbeware.com
(“Consumer Beware”).

The posts came from anonymous users who

claimed to have used the plaintiff’s laser hair removal
services.

Among those responsible for these negative posts were

Shuman, Tayar, and Assara employees.

A description of some of

the negative posts as well as the evidence linking those posts
to these three defendants, drawn from the evidence submitted by

A document reflecting the creation on October 31, 2006 of an
“AssaraLaser” user account on HairTell.com lists an email
address held by Jay Shuman.
5

4

the parties in connection with the plaintiff’s 2015 motion for
summary judgment, follows.
A. Assara
From March 2006 to August 2011, Assara leased the second
floor of 7 West 51st Street in New York City from Dr. Keith
Berkowitz.

Dr. Berkowitz provided internet service for his own

business and for his lessees through his Verizon Internet
Services, Inc. (“Verizon”) account.

One Internet Protocol

(“IP”) address on that account belonged to Assara.6

The

defendants do not dispute that the Assara IP Address was
associated with a computer terminal located at Assara’s place of
business.
Assara employees posted a number of negative comments about
the plaintiff on internet sites from the Assara IP Address.
Mark Bakkar, who was employed as an Assara office manager from
January to December 2008, posted at least eight comments on
HairTell in September 2008 posing as a “27 year old female” with

“An IP address is a string of four sets of numbers, separated
by periods, such as ‘98.37.241.30,’” that “every host or
computer on the Internet is assigned.” Name.Space, Inc. v.
Network Sols., Inc., 202 F.3d 573, 576 (2d Cir. 2000). An IP
address is a “unique identification of the location of an enduser’s computer” on a given Internet network, and thus “serves
as a routing address for email and other data sent to that
computer over the Internet from other end-users.” Register.com,
Inc. v. Verio, Inc., 356 F.3d 393, 407 n.4 (2d Cir. 2004). The
IP address for Assara’s computer ended in 210 and will be
referred to as the “Assara IP Address.”
6

5

“light complexion” and “black hair.”

Four of these posts

contain negative statements about the plaintiff’s business and
one promotes Assara’s services.

For example, in response to

another HairTell user’s recommendation of Romeo & Juliette,
Bakkar asked if there were hair removal services other than the
plaintiff because he had heard “a horror story” about Romeo &
Juliette.

When pressed for more details, Bakkar wrote that he

had heard from a former Romeo & Juliette technician that the
plaintiff had over-applied EMLA cream to a client, who then
“suffered a heart attack” and came “very close” to dying.
plaintiff denies that such an incident occurred.

The

The defendants

have offered no evidence of such an incident or that Bakkar had
heard that it occurred.
Working from the Assara IP Address, Assara employees also
created additional usernames on Yelp and HairTell to post
negative statements about the plaintiff’s services.

The

accounts were registered under the usernames “Sammy C.,”7

On September 18, 2008, someone acted from the Assara IP Address
to register the Yahoo email account [e-mail] and the
Yelp username “Sammy C.” Using that email address, name, and IP
Address, the person at Assara posted a negative review of the
plaintiff.
7

6

“Victoria G.,”8 and “Hana H.”9

Examples of negative reviews of

the plaintiff include a September 18 post describing the
plaintiff’s owner as “very into himself” and its staff as
unprofessional.

A September 25 post described the plaintiff’s

service as expensive and its employees as “a tad rude.”

And

several October 2008 reviews described a recent patch test
performed by the plaintiff that “burned” skin.

Karavolas denies

that this burning incident occurred, and testified that none of
the technicians employed at Romeo & Juliette since 2006 caused
any injuries.
Someone associated with Assara also posted negative reviews
about the plaintiff’s services from a second IP address.10

Using

this second address, the person posted on internet web forums
under the usernames “AssaraNY” and “JoeKala” in late March and
early April 2006.

As JoeKala, the person stated that Romeo &

On September 25, 2008, someone acted from the Assara IP Address
to register the username “Victoria G.” and post a negative
review of the plaintiff on Yelp using the email address
[e-mail].
8

On October 16, 2008, someone working from the Assara IP Address
used the name “Hana Husn” to register the email address
[e-mail] with Yahoo and, later that day, also
registered the user “HanaH” on HairTell using the same email
address. Later that month, using the Assara IP Address, someone
then posted under the “HanaH” username negative comments about
the plaintiff on HairTell, as well as two negative reviews of
the plaintiff on Yelp under the username “Hana H.”
9

10

The last three digits of this IP address were 7.62.
7

Juliette was “the most unprofessional place” and that one of the
plaintiff’s employees was “passive and sleazy.”

JoeKala

contrasted the plaintiff’s business with the “amazing” service
at Assara.
B. Shuman
Using the name AileyRokks on City Search, Shuman posted a
negative review of Romeo & Juliette on June 17, 2009 while
posing as a male dancer.

The post states that while Assara

“really understood” his needs as a dancer, he “lasered once at
Romeo & Juliette but had to cancel my treatment plan because my
skin had a reaction.”
The AileyRokks post came from the same IP address that
Shuman used to post a statement under the username
“AssaraGenCounsel” on HairTell.11

AssaraGenCounsel was

registered using Shuman’s email address,
[e-mail].

On October 20, 2008, Shuman used

the AssaraGenCounsel username to post an “open letter” on
HairTell warning the plaintiff’s owner to cease and desist
making defamatory statements about Assara.

Shuman ended this

post with his name and title as General Counsel.12

This IP address, ending in 212, will be referred to as the
“212 IP Address.”
11

In his 2012 deposition, Shuman testified that he could not
recall whether he had written the October 20 post, but added
that “maybe I did write it. I don’t know.” The defendants’
12

8

C. Tayar
Between 2006 and 2009, Tayar wrote posts about the
plaintiff under three different usernames.

These names were

“trex7740,”13 “Lisa2500,”14 and “Karine B.”15
As trex7740, Tayar wrote that “criticisms” of Romeo &
Juliette had been “blown out of proportion”: “Assara Laser is a
good place, but so is Romeo.

And though there have been

Local Rule 56.1 Statement is less ambivalent. It does not
dispute that the HairTell statements by AssaraGenCounsel were
posted by “Assara, by its principles or its employees.”
Moreover, the 56.1 Statement does not deny that the email
address used to register the HairTell account “AssaraGenCounsel”
was issued to Shuman, nor does it dispute that Shuman’s email
address was used to register that account on October 29, 2008
from the 212 IP Address.
On February 24, 2006, Tayar used his personal Hotmail email
address to create the username “trex7740” on HairTell. Tayar
created this account from an IP address associated with his then
employer, Paul, Weiss. This IP address, ending in 3.25, will be
referred to as the “Paul, Weiss IP Address.”
13

Tayar used two IP addresses to post comments using the name
“Lisa2500.” He used his Paul, Weiss IP Address to post a
comment as Lisa2500 on April 5, 2006. On that same day, he used
another IP Address (ending in 237) to post comments on Consumer
Beware under the username AssaraNY. Tayar had used the 237 IP
address to post a Consumer Beware statement about the plaintiff
on April 2, 2006 as Lisa2500.
14

On October 28, 2009, an Assara email account assigned to
Tayar’s wife, Maxine, were used to create the username Karine B.
on Yelp. She was an occasional unpaid blog writer for Assara’s
website. The negative post on Yelp concerning the plaintiff and
using the name Karine B. came from an IP address at the Tayars’
home. The last three digits of this IP address were 162.
Maxine Tayar has neither confirmed nor denied creating the
Karine B. post.
15

9

complaints about the high turnover of staff, I’ve been there and
they [have] machines which are as good as those found at Assara
Laser.”

As trex7740, Tayar also engaged in an online dialogue

with someone associated with Assara writing under the pseudonym
JoeKala.16

Trex7740 described the plaintiff as “not that bad”

while noting the plaintiff’s “staff turnover” and long waiting
time.

In response to another user, “lagirl,” who claimed to

know that JoeKala was an employee of Assara, Tayar wrote that
“it would be great to know who all these people are.

[S]ome say

in other forums that LAGirl is Romeo’s girlfriend, but who
knows.”

Despite earlier denials, defendants now admit that

Tayar created the username “trex7749” and used it from March 30
to April 8, 2006 to post eight statements on HairTell.
A post by Lisa2500 noted that the plaintiff’s staff had a
“negative attitude” although it also characterized Romeo &
Juliette as a “decent place.”

A review by Karine B. on Yelp

criticized the plaintiff for “charg[ing] more for the same
thing” and employing a “woman” who “asked some personal
questions in a rude manner.”17

Karine B. concluded that she

As noted above, someone at Assara created the username JoeKala
and used it anonymously to attack the plaintiff’s
professionalism and to promote Assara.
16

Maxine Tayar testified that when she went to Romeo & Juliette,
its male owner, Karavolas, “asked to see the area that I wanted
to get lasered,” which made her “uncomfortable.”
17

10

would “stay put at my laser place, where it’s clean and they’re
courteous.”

In a 2013 Local Rule 56.1 Statement submitted in

opposition to plaintiff’s 2012 summary judgment motion,
defendants did not dispute that Assara used the “Karine B.”
username to post a review of Romeo & Juliette on Yelp.
In a 2013 declaration, Tayar reports that he went to Romeo
& Juliette on three occasions at some point between 2003 and
2005.

According to Tayar, the laser hair removal treatments he

received were effective, but he had to wait for over an hour for
each treatment and the technician who treated him was rude and
curt.

Despite the negative experience, Tayar reports that

Assara hired that same technician, but later let her go when her
attitude did not improve.
D. Other Defendants
On October 31, 2006, Jay registered the username
“AssaraLaser” on HairTell using his email address,
[e-mail].

No negative statements about the plaintiff

are associated with the username “AssaraLaser.”

Similarly,

there is no evidence linking Dr. Tayar to internet comments
about the plaintiff.
III. Prior Proceedings
On January 17, 2008, the plaintiff filed a complaint
against the defendants asserting five causes of action for
trademark infringement and unfair competition.

11

The case was

assigned to the Hon. Thomas P. Grisea.

The complaint included

assertions that (1) the defendants had purchased the search
phrase “Romeo & Juliette” from Google Inc. so that whenever the
public searched for “Romeo & Juliette,” a sponsored link to the
Assara website would appear; and (2) the defendants had used the
plaintiff’s name and marks in hidden links and texts on its
website to deceive the public into believing the plaintiff had
sponsored the defendants’ services.

The plaintiff is no longer

pursuing these theories.
On April 1, 2009, the plaintiff filed its First Amended
Complaint (“FAC”) to add federal claims for unfair competition,
and state law claims for defamation, unfair competition, and
disparagement arising from the internet comments described
above.

During a conference before Magistrate Judge Frank Maas

on January 10, 2013, the plaintiff abandoned any claim for
monetary damages and sought to recover attorneys’ fees and costs
only.18
On December 20, 2012, the plaintiff filed a motion for
summary judgment on three counts of the FAC, seeking injunctive
relief and an award of costs and attorneys’ fees.

On February

At this same conference, Judge Maas discovered that Shuman had
repeatedly made false representations regarding his availability
to appear at the conference. On February 5, Judge Maas imposed
a $1,000 civil monetary penalty on Shuman pursuant to Fed. R.
Civ. P. 11. Romeo & Juliette Laser Hair Removal, Inc. v. Assara
I, LLC, 924 F. Supp. 2d 505 (S.D.N.Y. 2013).
18

12

12, 2013, the defendants filed an opposition to the plaintiff’s
summary judgment motion, as well as a motion to dismiss the FAC
for lack of subject matter jurisdiction.

After a September 18,

2013 oral argument on these motions, Judge Grisea granted the
defendants’ motion to dismiss and denied the plaintiff’s summary
judgment motion.

But, Judge Grisea also granted the plaintiff

leave to amend its FAC to reflect its claim for injunctive
relief.
The plaintiff filed its Second Amended Complaint (“SAC”) on
October 1, 2013, with the following eleven counts, which include
various claims for damages, injunctive relief, and attorneys’
fees: (1) use of a false designation of origin or false and
misleading representation of fact in violation of 15 U.S.C. §
1125(a)(l); (2) dilution of a famous mark in violation of 15
U.S.C. § 1125(c); (3) engaging in unfair business practices in
violation of New York General Business Law § 349; (4) trademark
infringement in violation of New York common law; (5) unfair
competition in violation of 15 U.S.C. § 1125(a); (6) common law
defamation; (7) unfair competition under New York State law; (8)
common law disparagement; (9) injunctive relief under the Lanham
Act, 15 U.S.C. §§ 1116 and 1125; (10) making false and
misleading statements about the plaintiff’s business in
violation of New York General Business Law § 349; and (11)
injunctive relief under New York common law.

13

On September 23,

2014, Judge Grisea dismissed Counts Three, Ten, and Eleven of
the SAC.

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

No. 08cv442, 2014 WL 4723299, at *9 (S.D.N.Y. Sept. 23, 2014).
On February 10, 2015, Judge Grisea granted the plaintiff leave
to file a new motion for summary judgment.

Romeo & Juliette

Laser Hair Removal v. Assara I LLC, No. 08cv442, 2015 WL 556742,
at *2 (S.D.N.Y. Feb. 10, 2015).
In compliance with the February 10 Order, on April 6,
plaintiff filed a motion for summary judgment seeking (1) a
judgment of liability on Counts Five, Six, Seven, and Eight; (2)
an entry of a permanent injunction pursuant to Count Nine; and
(3) an award of costs and attorneys’ fees pursuant to 15 U.S.C.
§ 1117(a) and 15 U.S.C. § 1125.
submitted on June 22.

This motion became fully

In response, the defendants filed a

cross-motion for summary judgment on June 8 which became fully
submitted on June 30.19

This Opinion addresses both of these

2015 motions for summary judgment.
On January 14, 2016, this case was reassigned to this
Court.

On January 25, the Court held a conference with all

parties, during which the plaintiff formally abandoned the
trademark allegations underlying Counts One, Two, and Four of

Defendants also filed a motion for sanctions on September 14,
2015 which became fully submitted on October 4. This motion is
not addressed in this Opinion.
19

14

the SAC and represented that it is only seeking injunctive
relief and legal fees.

Defendant Will Shuman, appearing pro se

and on behalf of the other defendants, informed the Court that
Assara was no longer in business.

Accordingly, on January 27,

the defendants were granted leave to file a two-page letter on
the issue of mootness.

The Court also required the plaintiff to

serve a proposed injunction on the defendants by January 27, the
defendants to advise the plaintiff of any objections to the
terms of the injunction by January 29, and the parties to file
submissions regarding the terms of the injunction on February 1.
Responding to the plaintiff’s request on January 27 to
supplement their request for attorneys’ fees, the Court also set
a briefing schedule on the issue of attorneys’ fees.

The

plaintiff’s motion for attorneys’ fees will be fully submitted
on March 4.
On January 29, defendants sought leave to file a motion
pursuant to Fed. R. Civ. P. 12(b)(1) dismissing this action for
lack of subject matter jurisdiction on the grounds of mootness.
With permission, defendants filed this new motion to dismiss on
February 9, which became fully submitted on February 19.

In

support of their motion to dismiss, the defendants have
submitted a two page “Covenant Not to Compete and Covenant Not
to Disparage Agreement” (the “Covenant”).

With this Covenant,

the defendants have submitted four separate signature pages from

15

each of the defendants Tayar, Shuman, Jay, and Dr. Tayar.

The

four signature pages each contain illegible signatures and are
dated either February 9, 2015 or February 9, 2016.
signatures are notarized.

None of the

The Covenant provides that the

signatories “shall not, for a period of 10 years, compete in the
business and industry of laser hair removal . . . and . . .
shall not publish, in any commercial context, any statements
online regarding the quality or characteristics of the business
or services of” the plaintiff.
DISCUSSION
Summary judgment may not be granted unless all of the
submissions taken together “show[ ] that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

“Summary

judgment is appropriate where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party.”

Smith v. Cty. of Suffolk, 776 F.3d 114, 121 (2d Cir.

2015) (citation omitted).

The moving party bears the burden of

demonstrating the absence of a material factual question, and in
making this determination, the court must view all facts in the
light most favorable to the non-moving party.

Gemmink v. Jay

Peak Inc., 807 F.3d. 46, 48 (2d Cir. 2015); Noll v. Int’l Bus.
Machines Corp., 787 F.3d 89, 97 n.6 (2d Cir. 2015).

“Although

the nonmoving party is entitled to have inferences drawn in his

16

favor at summary judgment, such inferences must be supported by
record evidence.”

Noll, 787 F.3d at 97 n.6.

Once the moving party has asserted facts showing that the
non-movant’s claims or affirmative defenses cannot be sustained,
“the party opposing summary judgment may not merely rest on the
allegations or denials of his pleading; rather his response, by
affidavits or otherwise as provided in the Rule, must set forth
specific facts demonstrating that there is a genuine issue for
trial.”

Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)

(citation omitted); see Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986).

“[C]onclusory statements, conjecture, and

inadmissible evidence are insufficient to defeat summary
judgment,” Ridinger v. Dow Jones & Co. Inc., 651 F.3d 309, 317
(2d Cir. 2011) (citation omitted), as is “mere speculation or
conjecture as to the true nature of the facts.”

Hicks v.

Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted).
Only disputes over material facts -- “facts that might affect
the outcome of the suit under the governing law” -- will
properly preclude the entry of summary judgment.

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
I.

Counts Five and Seven: Unfair Competition
The plaintiff seeks summary judgment on Counts Five and

Seven of its SAC, which bring claims for unfair competition
under 15 U.S.C. § 1125(a) and New York law.

17

While the plaintiff

has established liability under these two counts as to
defendants Assara and Shuman, it has failed to do so for
defendants Tayar, Jay, or Dr. Tayar.
A. Count Five: Unfair Competition under 15 U.S.C. § 1125(a)
The Lanham Act “protect[s] persons engaged in . . .
commerce against unfair competition.”

POM Wonderful LLC v.

Coca-Cola Co., 134 S. Ct. 2228, 2233 (2014) (citation omitted).
Under 15 U.S.C. § 1125(a)(1):20
Any person who, on or in connection with any goods
or services, . . . uses in commerce any . . . false
or misleading description of fact, or false or
misleading representation of fact, which . . . in
commercial advertising or promotion, misrepresents
the nature, characteristics, qualities, or
geographic origin of . . . another person’s goods,
services, or commercial activities shall be liable
in a civil action by any person who believes that he
or she is or is likely to be damaged by such act.
While the Lanham Act “does not prohibit false statements
generally,” it prohibits “false or misleading descriptions or
false or misleading representations of fact made about one’s own
or another’s goods or services.”

S.C. Johnson & Son, Inc. v.

Clorox Co., 241 F.3d 232, 238 (2d Cir. 2001) (citation omitted).

The plaintiff has abandoned its separate claimed violations of
the Lanham Act and New York law associated with alleged schemes
by the defendants to manipulate consumers with Google searches
and hidden links involving the “Romeo & Juliette” trademark.
Section 1125(a) “creates two distinct bases of liability: false
association, § 1125(a)(1)(A), and false advertising,
§ 1125(a)(1)(B).” Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377, 1384 (2014). Count Five is
analyzed as a § 1125(a)(1)(B) claim.
20

18

To be actionable under the Lanham Act, comments on internet
forums must constitute commercial advertising or promotion.
In this circuit, to constitute commercial
advertising or promotion under the Lanham Act, a
statement must be: (1) commercial speech, (2) made
for the purpose of influencing consumers to buy
defendant’s goods or services, and (3) although
representations less formal than those made as part
of a classic advertising campaign may suffice, they
must be disseminated sufficiently to the relevant
purchasing public.
Gmurzynska v. Hutton, 355 F.3d 206, 210 (2d Cir. 2004) (citation
omitted).

Core commercial speech is “speech which does no more

than propose a commercial transaction.”

Connecticut Bar Ass’n

v. United States, 620 F.3d 81, 93 (2d Cir. 2010) (citation
omitted).

Put another way, commercial speech is “expression

solely related to the economic interests of the speaker and its
audience.”

United States v. Caronia, 703 F.3d 149, 163 (2d Cir.

2012).
The defendants’ anonymous comments recited above constitute
commercial advertising or promotion.

In pursuit of their

commercial interests, the defendants repeatedly posted
disparaging comments to public fora used by consumers to select
laser hair removal services.

By anonymously disparaging the

plaintiff’s business and simultaneously promoting Assara, the
defendants acted in pursuit of their economic interests.
To establish a Lanham Act claim, the plaintiff must prove
the following four elements.

19

“[T]he plaintiff must first

demonstrate that the statement in the challenged advertisement
is false.”

Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247, 255

(2d Cir. 2014) (citation omitted).

Falsity may be proven by

showing that “(1) the advertising is literally false as a
factual matter, or (2) although the advertisement is literally
true, it is likely to deceive or confuse customers.”
(citation omitted).

Id.

Second, the plaintiff must establish “that

the defendants misrepresented an inherent quality or
characteristic of the product.”

Id. (citation omitted).

Third,

the plaintiff must show that “the defendant placed the false or
misleading statement in interstate commerce.”
omitted).

Id.

(citation

Finally, the plaintiff must show that it has been

“injured as a result of the misrepresentation, either by direct
diversion of sales or by a lessening of goodwill associated with
its products.”

Id. (citation omitted).

Where the statement is

literally false, “the court may enjoin the use of the claim
without reference to the advertisement’s impact on the buying
public.”

Id. at 256 (citation omitted).

The plaintiff has shown that defendant Assara, which acted
through its employees and officers, as well as defendant Shuman,
made false statements about the plaintiff’s business by
describing experiences that had not occurred.

The statements by

Assara and Shuman were literally false as a factual matter since
they described persons who were not Romeo & Juliette customers

20

and experiences with the plaintiff’s services that those
fictitious customers did not have.

In one instance, an Assara

employee used his online identity to report a horror story he
had purportedly heard.

The plaintiff has denied that the

episode ever occurred, and the defendants have not offered
evidence that it did occur or that the author of the post had in
fact heard anyone describe such an incident.

Most of these

posts concerned essential characteristics of the plaintiff’s
business, for instance, physical reactions to its treatments or
rudeness by its staff.

There is no dispute that posting to

internet fora placed the statements in interstate commerce, and
that the plaintiff’s business was conducted in interstate
commerce.

Because the statements were literally false, the

plaintiff is relieved of the burden of showing the impact of the
statements on its business fortunes.

Accordingly, each element

of a § 1125(a) violation is established as to defendants Assara
and Shuman.
The plaintiff’s motion for summary judgment is denied as to
Tayar.

It is undisputed that Tayar received treatments at Romeo

& Juliette.

His postings under his three pseudonyms principally

repeat that service was slow or that the plaintiff’s employees
were rude.21

These are largely matters of opinion and the

Nor is summary judgment warranted on Tayar’s more personal
comment about Karavolas.
21

21

plaintiff has not shown that they are actionable as false
statements of fact.

Cf. Groden v. Random House, Inc., 61 F.3d

1045, 1051-52 (2d Cir. 1995) (“[S]tatements of opinion are
generally not the basis for Lanham Act liability.”).
The plaintiff has provided no evidence that Dr. Tayar or
Jay made any statement about Romeo & Juliette.

The plaintiff

has thus failed to establish a Lanham Act claim of unfair
competition against Tayar, Dr. Tayar, or Jay.
B. Count Seven:

Unfair Competition Under New York Law

The plaintiff also moves for summary judgment on its common
law unfair competition claim.

New York courts recognize an

“incalculable variety of illegal practices falling within the
unfair competition rubric, calling it a broad and flexible
doctrine that depends more upon the facts set forth than in most
causes of action.”

Roy Exp. Co. Establishment of Vaduz,

Liechtenstein v. Columbia Broad. Sys., Inc., 672 F.2d 1095, 1105
(2d Cir. 1982) (citation omitted).

The doctrine has been

described as encompassing “any form of commercial immorality, or
simply as endeavoring to reap where (one) has not sown.”
(citation omitted).
capacious.”

Id.

Id.

As such, “[t]he tort is adaptable and

Under New York law, unfair competition claims

“closely resemble Lanham Act claims except insofar as the state
law claim may require an additional element of bad faith or

22

intent.”

Nadel v. Play-By-Play Toys & Novelties, Inc., 208 F.3d

368, 383 (2d Cir. 2000) (citation omitted).
The plaintiff has established bad faith by showing that
defendants Assara and Shuman deliberately posted false
statements critical of the plaintiff’s services.

Accordingly,

the plaintiff has established an unfair competition claim under
New York law against these two defendants.
II.

Count Six: Defamation
The plaintiff next seeks summary judgment on its claim of

defamation contained in Count Six.

Under New York law, a

defamation action requires a plaintiff to show: “(1) a written
defamatory factual statement concerning the plaintiff; (2)
publication to a third party; (3) fault; (4) falsity of the
defamatory statement; and (5) special damages or per se
actionability.”
2014).

Chau v. Lewis, 771 F.3d 118, 126–27 (2d Cir.

“A plaintiff in a libel action must identify a plausible

defamatory meaning of the challenged statement . . . .

If the

statement is susceptible of only one meaning the court must
determine, as a matter of law, whether that one meaning is
defamatory.”

Celle v. Filipinio Reporters Enters., Inc., 209

F.3d 163, 178 (2d Cir. 2000) (citation omitted) (applying New
York law).
To meet the first element, the alleged defamatory statement
must be “a false statement which tends to expose the plaintiff

23

to public contempt, ridicule, aversion or disgrace, or induce an
evil opinion of him in the minds of right-thinking persons, and
to deprive him of their friendly intercourse in society.”
Franklin v. Daily Holdings, Inc., 21 N.Y.S.3d 6, 10 (1st Dep’t
2015) (citation omitted).

To be actionable, “the statement must

do more than cause discomfort or affront; the statement is
measured not by the sensitivities of the maligned, but the
critique of reasonable minds that would think the speech
attributes odious or despicable characterizations to its
subject.”

Chau, 771 F.3d at 127.

While the bare accusation

that a product does not conform to its advertised quality does
not, without more, defame the owner of the product, disparaging
the integrity and professionalism of the competitor’s business
is actionable.

Ruder & Finn Inc. v. Seaboard Sur. Co., 52

N.Y.2d 663, 670–71 (1981).
To show fault, the plaintiff, which is considered a
limited-purpose public figure, must also demonstrate that the
defendants published their statements with “actual malice.”
Biro v. Conde Nast, 807 F.3d 541, 544 (2d Cir. 2015) (applying
New York law).

Actual malice is “knowledge that the statements

were false or with reckless disregard as to their falsity.”

Id.

Since the plaintiff only alleges per se defamation, it is
not required to show the existence of special damages.
statements “fall within established categories of per se

24

When

defamation, the law presumes that damages will result, and they
need not be alleged or proven.”

Zherka v. Amicone, 634 F.3d

642, 645 (2d Cir. 2011) (citation omitted) (applying New York
law).

Under New York law, per se defamation includes statements

“that tend to injure another in his or her trade, business or
profession.”

Id. at 645 n.6 (citation omitted); see also Allen

v. CH Energy Grp., Inc., 872 N.Y.S.2d 237, 238 (3d Dep’t 2009).
The statements must be “of a kind [that are] incompatible with
the proper conduct of the business, trade, profession or office
itself.”

Liberman v. Gelstein, 80 N.Y.2d 429, 436 (1992).

As already explained in connection with the unfair
competition claims, the plaintiff has shown that defendants
Assara and Shuman posted critical false reviews of its business
on consumer-review websites.

It has presented undisputed

evidence that satisfies all five elements of its defamation
claim.

The two defendants made disparaging statements about

Romeo & Juliette staff, including claims that they were
unprofessional, intrusive, and dishonest.

Shuman and Assara

went as far as to accuse the plaintiff of causing physical
injuries.

Statements by each of the defendants “impute[]

incompetence, incapacity or unfitness” to Romeo and Juliette and
its business services.
omitted).

Allen, 872 N.Y.S.2d at 238 (citation

Accordingly, the plaintiff has established its per se

defamation claims against defendants Assara and Shuman.

25

Because

the defendants created fictitious experiences to undermine Romeo
& Juliette’s business, the plaintiff has shown that the
statements were made with actual malice.
The defendants argue that the internet comments in question
are statements of opinion.

“[E]xpressions of opinion, as

opposed to assertions of fact, are deemed privileged and, no
matter how offensive, cannot be the subject of an action for
defamation.”

Davis v. Boeheim, 24 N.Y.3d 262, 269 (2014)

(citation omitted).

To determine whether a statement is an

expression of an opinion or one of objective fact, a court must
consider:
(1) whether the specific language in issue has a
precise meaning which is readily understood; (2)
whether the statements are capable of being proven
true or false; and (3) whether either the full
context of the communication in which the statement
appears or the broader social context and
surrounding circumstances are such as to signal
readers or listeners that what is being read or
heard is likely to be opinion, not fact.
Id. at 270 (citation omitted).
Here, the statements describe fictitious treatments at
Romeo & Juliette by fictitious clients.
readily capable of being proven false.

They are therefore
As such, the statements

at issue are objective facts, not opinions.
III. Count 8: Disparagement
The fourth and last claim on which the plaintiff seeks
summary judgment is its product disparagement claim in Count

26

Eight.

“To recover for disparagement of goods, the plaintiff

must show that the defendant published a[ ] . . . defamatory
statement directed at the quality of a business’s goods and must
prove that the statements caused special damages.”

Fashion

Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48,
59 (2d Cir. 2002) (citation omitted) (applying New York law).
Special damages are “the loss of something having economic or
pecuniary value.”

Albert v. Loksen, 239 F.3d 256, 271 (2d Cir.

2001) (citation omitted) (applying New York law in defamation
action).

“Where loss of customers constitutes the alleged

special damages, the individuals who ceased to be customers, or
who refused to purchase, must be named and the exact damages
itemized.”

Fashion Boutique of Short Hills, Inc., 314 F.3d at

59 (citation omitted).

If the statements “impeach[] the

integrity or business methods of the [entity] itself,” however,
“no special damages need be shown as the direct accusation
constitutes a libel per se.”

Drug Research Corp. v. Curits Pub.

Co., 7 N.Y.2d 435, 440 (1960) (citation omitted).

As with a

defamation claim, a plaintiff must establish that the
defendant’s statements were made with actual malice.

Ruder &

Finn Inc., 52 N.Y.2d at 671.
As described above, the plaintiff has proven that
defendants Assara and Shuman published defamatory statements
impeaching the integrity of Romeo & Juliette’s business.

27

As

such, the plaintiff need not prove special damages in order to
prevail on its disparagement claim.

Accordingly, it has shown

that it is entitled to judgment on this claim as well.
IV.

Injunctive Relief Under the Lanham Act
The plaintiff seeks a permanent injunction under 15 U.S.C.

§ 1116 “enjoining defendants from publishing defamatory and/or
false statements concerning plaintiff and/or its principal.”
The Lanham Act grants district courts the “power to grant
injunctions, according to the principles of equity and upon such
terms as the court may deem reasonable.”

15 U.S.C. § 1116(a).

To obtain a permanent injunction, the plaintiff must
demonstrate:
(1) that it has suffered an irreparable injury; (2)
that remedies available at law, such as monetary
damages, are inadequate to compensate for that injury;
(3) that, considering the balance of hardships between
the plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not
be disserved by a permanent injunction.
U.S.S.E.C. v. Citigroup Glob. Markets, Inc., 752 F.3d 285, 296
(2d Cir. 2014) (citation omitted).
The plaintiff is entitled to a permanent injunction against
defendants Assara and Shuman.

First, the plaintiff has

established that these defendants violated § 1125(a) of the
Lanham Act.

They posted comments on the internet between 2006

and 2009 that disparaged the plaintiff’s business in an effort
to benefit Assara’s business through unfair and deceptive means.

28

Shuman was a principal and founding member of Assara, had a
direct stake in its fortunes, and had a willingness to use
deceit to shape the market in which it functioned.

Because

comments posted on the internet will have a lasting impact on a
business’s reputation, and because that impact will be
impossible to measure, monetary damages are inadequate to
compensate the plaintiff for the unlawful activities of the
three defendants.22

The defendants have identified no hardship

that they will experience from the issuance of an injunction,
and indeed, in the face of the imminent decision on this request
for an injunction, recently pledged through the Covenant that
they would not further disparage the plaintiff’s business.

The

plaintiff’s business continues, and its continuing concern with
its reputation in the community is strong.

With an injunction,

the plaintiff will have greater peace of mind and its investment
in its business will be better protected.

There is a strong

public interest in fair competition and the accurate description
of business services to members of the public.

The defendants argue that the plaintiff experienced little
harm from their internet postings, as evidenced by a September
2008 request by Karavolas to HairTell to leave the posts up.
The email correspondence cited by the defendants, however, is
actually part of an extended correspondence between Karavolas
and a HairTell employee. In his emails, Karavolas requested
that HairTell keep the defendants’ statements up so that he
could “do some more work” to determine the identities of the
posters.
22

29

This injunction is warranted even though the internet
postings on which it is premised end with statements made in
2009.

Because the defendants denied for many years that they

were responsible for the negative reviews of the plaintiff
posted on the internet, the plaintiff was forced to engage in
third party discovery to track down the source of the postings.
This was an expensive and time-consuming task.

Fact discovery,

and thus the plaintiff’s ability to obtain this evidence, ended
years ago.

Only when it came time to respond to the plaintiff’s

2012 motion for summary judgment did the defendants change their
litigation posture and begin to acknowledge their authorship of
at least some of the defamatory statements.

Because of the

defendants’ litigation strategy and the elongated nature of this
litigation, there is no reliable inference to be drawn as to
when the defendants altogether ceased the improper activities at
issue here or the likelihood of their recurrence.

In the

context of the unique situation here, this gap in time does not
present an insurmountable obstacle to imposition of an
injunction.
The defendants have recently argued that there is no need
for an injunction since Assara went out of business in 2015 and
both Tayar and Shulman signed the Covenant promising that they
“shall not publish, in any commercial context, any statements
online regarding the quality or characteristics of the business

30

or services of” the plaintiff.23
the need for this injunction.
fought litigation.

These events do not eliminate

This has been lengthy and hard

Without the issuance of an injunction,

reinforced by the contempt powers associated with an injunction,
there will be inadequate protection against the recurrence of
the defendants’ sharp business practices and the need for
renewed litigation.
In any event, the plaintiff has offered evidence that casts
doubt on the representation that Assara has ceased its
operations.

Assara is still registered as an active entity with

the New York Department of State, and Assara’s website is still
live.

Moreover, there is no impediment to Shuman opening

another laser hair removal business, named Assara or something
else.
Accordingly, an injunction shall issue against defendants
Assara and Shuman enjoining each of them from publishing false
statements about the plaintiff on internet forums.

The specific

terms of the injunction will be addressed in a separate order.

The Shuman and Tayar’s signature pages of the Covenant are
dated February 9, 2015, but it appears both were actually signed
in 2016.
23

31

V.

The Defendants’ Arguments
A. Defendants’ Response to Plaintiff’s Evidence
In the face of the evidence gathered from third parties

linking Assara and Shuman to anonymous false and misleading
comments posted to internet fora, the defendants presented
virtually no evidence of their own.

The defendants’ “Rule

56.1(a) Counterstatement of Material Facts” offered few
citations to admissible evidence other than to exhibits offered
by the plaintiff in support the plaintiff’s motion for summary
judgment and to documents submitted earlier in the litigation in
connection with other motion practice.

The Court has located

and considered each of the documents cited by the defendants.
The limited evidence cited by the defendants does not create a
genuine issue of material fact that would preclude summary
judgment.
With limited exceptions, to oppose the plaintiff’s IP
address evidence, the defendants relied on Shuman’s 2012
deposition testimony in which he stated that Assara’s computers
and therefore its IP address were available to other businesses
on Assara’s floor, and to Assara’s clients and guests.

Since

that time, however, both Tayar and Shuman have admitted that
they or Assara employees were responsible for at least some of

32

the posts.24

Moreover, Shuman’s speculation in his deposition

that Assara clients may have used Assara’s computer to create
the posts does not create a genuine dispute as to the
defendants’ role in posting these internet comments.

Shuman’s

speculation, “unsupported by documentary or other concrete
evidence . . . , is simply not enough to create a genuine issue
of fact in light of the evidence to the contrary.”

Argus Inc.

v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986).
During his 2012 deposition, Shuman also offered blanket
denials of wrongdoing, denied any knowledge of wrongdoing by
anyone else associated with Assara, and stated that he had
advised Assara employees not to post anonymous disparaging
comments about competitors.

But, the defendants’ blanket

denials through Shuman’s 2012 deposition do not address the
specific evidence linking particular website comments to
individual defendants and to Assara employees.

The comments

came from identities linked to their email accounts or IP
addresses at their homes and places of business.

Accordingly,

the Court has not construed Shuman’s blanket denials of
wrongdoing as raising a question of fact.

For example, during the conference on January 27, 2015, Shuman
admitted that Assara employees had authored some of the posts.
In his 2016 declaration, Tayar admits posting comments as
trex7740, but denies posting comments as Lisa2500.
24

33

B. Unclean Hands
In their cross-motion for summary judgment, the defendants
primarily seek relief under the equitable doctrine of unclean
hands.25

Unclean hands may be asserted as an affirmative defense

to equitable claims in an action under Lanham Act § 43(a).

See

Warner Bros., Inc. v. Gay Toys, Inc., 724 F.2d 327, 334 (2d Cir.
1983).

The doctrine of unclean hands allows a court, in its

discretion, to decline to issue an injunction.

Dunlop-McCullen

v. Local 1-S, AFL-CIO-CLC, 149 F.3d 85, 90 (2d Cir. 1998).

It

is based “on the principle that since equity tries to enforce
good faith in defendants, it no less stringently demands the
same good faith from the plaintiff.”

Id. (citation omitted).

Misconduct that is “unrelated to the claim to which it is
asserted as a defense,” however, “does not constitute unclean
hands.”

Id. (citation omitted).

Thus, “the defense of unclean

hands applies only with respect to the right in suit.”
(citation omitted).

Id.

The doctrine of unclean hands “may be

relaxed if defendant has been guilty of misconduct that is more
unconscionable than that committed by plaintiff” and “in
determining whether the doctrine of unclean hands bars an
equitable remedy, courts are permitted to weigh the wrongdoing
of the plaintiff against the wrongdoing of the defendant.”

Id.

The defendants also rely on unclean hands as an argument in
opposition to the plaintiff’s summary judgment motion.
25

34

at 92-93; see also 11A Wright, Miller, Kane, Federal Practice
and Procedure: Civil § 2946 (3d ed. 2015).
The unclean hands defense under New York law is virtually
identical.

In New York, courts in equity “apply the maxim

requiring clean hands where the party asking for the invocation
of an equitable doctrine has committed some unconscionable act
that is directly related to the subject matter in litigation and
has injured the party attempting to invoke the doctrine.”
PenneCom, B.V. v. Merrill Lynch & Co., 372 F.3d 488, 493 (2d
Cir. 2004) (citation omitted) (applying New York law).
In support of their cross motion for summary judgment, the
defendants offer evidence that Romeo and Juliette’s owner,
Karavolas, engaged in “astroturfing” in praise of his business.
Astroturfing refers to the practice of disseminating reviews
that a reasonable customer would believe to emanate from a
neutral third-party.

It is assumed that the defendants’ motion

has presented sufficient evidence to support the motion even
though it did not include a Local Rule 56.1 Statement and its
citations to Karavolas’s 2012 deposition testimony largely
reflect denials by Karavolas that he engaged in astroturfing.
The defendants have not shown that the doctrine of unclean
hands applies here.

The subject matter of this litigation is

the defendants’ malicious internet posts about its competitor.
The plaintiff’s astroturfing, which will be assumed for the

35

purpose of this motion, is not related to the defendants’
defamatory posts.

No one associated with the defendants has

testified that his or her postings, which were critical of the
plaintiff, were prompted or justified by the plaintiff’s glowing
descriptions of its own business.

Moreover, the defendants’

false accusations that the plaintiff physically injured its
clients represent serious misconduct.

Accordingly, the

defendants have not shown that this affirmative defense should
prevent the issuance of a narrowly-tailored injunction.
C. Laches
Defendants also argue that the plaintiff’s claim for
injunctive relief is barred by the affirmative defense of
laches.

To win on the affirmative defense of laches, “a

defendant must prove that it has been prejudiced by the
plaintiff’s unreasonable delay in bringing the action.”
Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 (2d Cir.
1996).

Fed. R. Civ. P. 8(c) requires that “[i]n responding to a

pleading,” a party must “affirmatively state any avoidance or
affirmative defense, including . . . laches.”
The plaintiff has been seeking an injunction since filing
its 2012 motion for summary judgment.

Thus, there has been no

delay in the pleading of the claim for relief.

Moreover, the

defendants did not raise laches as an affirmative defense in
their answer to the SAC.

This alone would bar this affirmative

36

defense.

Finally, the defendants have not articulated how they

are prejudiced by the defendants’ renewed request in 2015 for an
injunction.

Accordingly, the laches defense is denied.

D. Individual Defendants
The plaintiff has brought claims against Assara and four
individual defendants.

The claims against the individuals are

brought to hold them responsible for the unfair competition in
which they personally engaged.

The plaintiff has shown it is

entitled to summary judgment as to Assara and Shuman.
defendants has cross moved for summary judgment.
granted as to defendants Jay and Dr. Tayar.

The

Its motion is

The plaintiff has

presented evidence of direct personal conduct by defendant
Shuman in support of their claims, but has presented no such
evidence for defendants Jay or Dr. Tayar.

Accordingly, the

plaintiff’s claims against defendants Jay and Dr. Tayar are
dismissed.
As noted, the plaintiff has submitted evidence that Tayar
personally wrote comments about the plaintiff under three
pseudonyms.

Given that Tayar has submitted a 2013 declaration

describing his own experience as a client of Romeo & Juliette,
there remains a genuine dispute of material fact as to the
falsity of his statements.

Accordingly, defendants’ motion for

summary judgment cannot be granted as to Tayar.

37

VI.

Mootness
The defendants have moved to dismiss all of the plaintiff’s

claims pursuant to Fed. R. Civ. P. 12(b)(1) on mootness grounds.
In support of their motion, the defendants have submitted a
declaration from Shuman stating that Assara ceased operations on
December 23, 2015, that each of the defendants except Shuman has
left New York, and that Assara “will never re-open.”26

Shuman

also presents the Covenant not to compete in the laser hair
removal business for 10 years or post comments about the
plaintiff’s business, as well as documents related to Assara’s
lease termination in late 2015.

The defendants argue that these

events and representations render the plaintiff’s claims moot.
The mootness doctrine is derived from “Article III of the
Constitution,” which “grants the Judicial Branch authority to
adjudicate ‘Cases’ and ‘Controversies.’

In our system of

government, courts have no business deciding legal disputes or
expounding on law in the absence of such a case or controversy.”
Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013) (citation
omitted).

This case or controversy requirement “is not

satisfied by a difference or dispute of a hypothetical or

In support of this motion, the defendants have also submitted
a 2016 declaration by David Tayar stating that (1) he has moved
to Florida, (2) he has no intention of returning to New York,
(3) he disposed of his interest in Assara in early 2014, and (4)
he has no plans to go into any new business, “whether in the
laser hair removal field or otherwise.”
26

38

abstract character.”

Nike, Inc. v. Already, LLC, 663 F.3d 89,

94 (2d Cir. 2011) (citation omitted).

Rather, a justiciable

controversy exists only where a dispute is “definite and
concrete, touching the legal relations of parties having adverse
legal interests.”

Id. (citation omitted).

The voluntary cessation exception to the mootness doctrine
recognizes that “a defendant cannot automatically moot a case
simply by ending its unlawful conduct once sued.”
133 S. Ct. at 727.

Already, LLC,

As such, a party “claiming that its

voluntary compliance moots a case bears the formidable burden of
showing that it is absolutely clear the allegedly wrongful
behavior could not reasonably be expected to recur.”

Id.

(citation omitted); see also Holland v. Good, 758 F.3d 215, 22324 (2d Cir. 2014).
The plaintiff’s claims are not moot.

The defendants have

not shown that it is “absolutely clear” that their wrongful
conduct will not recur.

The Covenant contains significant

authenticity and execution issues.

Moreover, the defendants’

misrepresentations during this litigation counsel against
reliance on the representations they offer today.

In opposition

to the defendants’ motion to dismiss, the plaintiff has also
presented email correspondence between Tayar, his wife, Shuman,
and a laser equipment supplier/repairman in 2015 in which they
discuss replacement parts and potential “laser techs.”

39

As

recently as November 24, 2015, Shuman wrote to the supplier that
he and Tayar were “discussing selling” an old laser and
“purchasing or leasing a later model.”

The plaintiff has also

presented evidence that Assara is still registered as an active
entity with the New York Department of State, that Assara’s
website is still live, and that Tayar still lists his Assara
affiliation and address with the New York State Unified Court
System.

Given the malicious nature of the internet postings, as

well as the deceit involved in litigating this case, a simple
promise by the defendants to cease their disparagement is not
enough to moot this matter.

40

CONCLUSION
The plaintiff’s April 6, 2015 summary judgment motion is
granted as to liability on Counts Five, Six, Seven, Eight, and
Nine against defendants Assara and Will Shuman, and otherwise
denied.

An injunction shall issue against these defendants

pursuant to this Opinion.

The plaintiff’s motion is denied as

to the remaining defendants.

The defendants’ June 8, 2015

motion for summary judgment is granted as to defendants Jay
Shuman and Dr. Sam Tayar, and otherwise denied.
February 9, 2016 motion to dismiss is denied.

The defendants’
A separate Order

will be issued as to the plaintiff’s remaining claims and the
proceedings against David Tayar.
SO ORDERED:
Dated:

New York, New York
February 29, 2016
__________________________________
DENISE COTE
United States District Judge

41