K&D LLC v. Trump Old Post Office LLC, No. 18-7185 (D.C. Cir. 2020)
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Cork Wine Bar, a restaurant that competes with President Trump's eponymous hotel, filed suit alleging violations of the District's common law of unfair competition. Cork alleged that President Trump's hotel attracted more of the lobbyists, advocacy groups, and diplomats that Cork had relied on to fill its events calendars, and that these customers chose the hotel because of a perception that patronizing it would be to their advantage in their dealings with the Trump Administration. After removal, the district court denied Cork's motion to remand, dismissing the complaint for failure to state a claim.
The DC Circuit held that the case was properly removed based on its two-step analysis in officer-removal cases. First, the court held that President Trump's theory that the District may not impose legal conditions on the lawful performance of his presidential duties was colorable. Second, the court held that President Trump demonstrated that Cork's suit fell within the scope of 28 U.S.C. 1442(a)(1).
The court also held that case law did not support Cork's claims on the merits and that Cork failed to cite any contrary precedent. In this case, Cork suggested in passing that President Trump and the hotel were impairing competition and interfering with access to its business. However, the court explained that these claims bear little resemblance to the examples listed in Ray v. Proxmire and B B & W Mgmt., Inc. v. Tasea Inv. Co. Finally, the court declined to certify the core question of District law to the District of Columbia Court of Appeals.
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