1 16-1216-cv Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (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 Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 14 th day of February, two thousand seventeen. PRESENT: REENA RAGGI, RAYMOND J. LOHIER, JR., CHRISTOPHER F. DRONEY, Circuit Judges

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---------------------------- ---------------------------- -------------- 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, MA NHATTAN LASER HAIR REMOVAL, JAY SHUMAN a/k/a JEROME SHUMAN, DR. SAM TAYAR, DAVID TAYAR, Defendants .*

---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANTS: WILL SH UMAN, Esq., New York, New York.

* The Clerk of Court is directed to am end the case caption as set forth above.2 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 ORDERE D, ADJUDGED, AND DECREED that the judgment ente red on May 20, 2016, is AFFIRMED. Defendants Assara I LLC (“Assara”) a nd Will Shuman appeal from a permanent injunction granted on summary judgment to plaintiff Ro meo & Juliette Laser Hair Removal, Inc. (“R&J”) as to state common-la w and federal claims of unfair competition, disparagement, and defamation. See 15 U.S.C. § 1125(a). De fendants argue that the district court erred in grantin g injunctive relief and in fashio ning an overbroad injunction while denying their motion to dismiss on m ootness 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 pe rmanent 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 awardi ng 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’ familiarity3 with the facts and record of prior proceedin gs, which we reference only as necessary to explain our decision to affirm. 1. Injunctive Relief Defendants argue principally that R&J faile d to demonstrate the present or future injury necessary for injunc tive relief because (a) no negative comments about R&J were posted after 2009, and (b) Assara allege dly went out of business in 2015. See eBay Inc. v. MercExchange, L.L.C. , 547 U.S. 388, 391 (2006) (hol ding 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 statemen ts regarding R&J’s business, it fails as a matter of law. Even if Assara has closed and the challe nged 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 practic es, an inference supported by the continued registration of Assara as an active busine ss entity, maintenance of a fully operational website, 2 and correspondence suggesting defendants’ contemplated purchase of a laser

1 Defendants’ argument that no liability judg ment could be entered in favor of R&J because it had abandoned its damages clai ms 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.assaralaserhairremova l.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/4 hair-removal machine as rece ntly 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 fa ct regarding injury, particularly where, as here, defendants were shown to have falsely denied being the source of the challenged defamatory postings, and defenda nts’ counsel had been sancti oned 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 matte r 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, 60 3 (2d Cir. 2016) (emphasis in original) (inter nal quotation marks omitted). 3. Unclean-Hands and Laches Defenses Defendants fault the district court’s reje ction of their unclean-hands and laches defenses. The former argument fails because th at defense rested on allegations that R&J inflated its own on-line customer reviews, co nduct 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 pre ss “Search Database”).5 1998) (stating that “misconduct un related to the claim to which it is asserted as a defense, does not constitute unclean hand s” (alterations and internal quotation marks omitted)). As to laches, defendants fail to show that th ey have been prejudiced by plaintiff’s delay in formally suing for injunctive relief fro m the start because th is litigation placed defendants on clear notice that R&J wish ed 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 de nial of dismissal. 4. Scope of Injunctive Relief Defendants challenge the inju nction granted as void for va gueness and violative of the First Amendment. The argument fail s because the injunction’s prohibition on speech that is false, misleading, defamato ry, 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) (sta ting that government ’s prohibition of “commercial speech that is false, deceptive, or misleading” does not violate First Amendment (internal quot ation 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 know ingly and voluntarily enteri ng 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 wa ive any objections” thereto (internal quotation6 marks omitted)). Indeed, the injunction is narrower than th e covenant, wh ich 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 obj ect to the absence of a time limit, they offer no reason, in light of their prior business and litigatio n 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’ “contemptuo us 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 th e business may have been transferred,” such as “[s]uccessors and a ssigns” (internal quotation marks omitted)); see also Fed. R. Civ. P. 65(d)(2)(C) (deeming inju nctions binding against those “in active concert or participation” with named parties). Accordingly, defendants’ overbreadth challenge fails on the merits.7 5. Attorneys’ Fees While defendants purport to appeal the dist rict court’s award of attorneys’ fees, they mention it only in passing and do not e xplain how or why the district court erred. 3
That does not suffice to raise th e matter for our consideration. See Gross v. Rell , 585 F.3d 72, 95 (2d Cir. 2009) (“Me rely mentioning [a] relevant issue in an op ening brief is not enough; issues not sufficiently argued . . . will not be cons idered on appeal.” (internal quotation marks and alteration omitted)). Accord ingly, 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 awarde d in connectio n with R&J’s motion to compel.