Drake filed a certification motion on January 21, 2026, asking the Second Circuit to send one New York law question to the state’s highest court.
The request sits beside his broader appeal against UMG, but it deals with a much narrower problem. Judge Jeannette Vargas dismissed Drake’s second-degree harassment claim after concluding that New York Penal Law Section 240.26 does not give private plaintiffs a civil right to sue. Drake says New York’s Court of Appeals has never directly answered that question.
Six days after the motion was filed, the Second Circuit referred it to the same merits panel that will decide the appeal. The judges can therefore deal with the certification request alongside Drake’s pending Not Like Us appeal hearing instead of treating it as a separate case.
New York courts use a three-part test for implied private rights. They look at whether the plaintiff belongs to the class the statute was meant to benefit, whether a private lawsuit would promote the legislative purpose, and whether allowing one would fit the wider legislative scheme. All three parts matter, with the fight here concentrating heavily on the third.
Drake argues older decisions support allowing civil claims tied to harassment statutes and points to the Second Circuit’s 1973 decision in Galella v. Onassis. His briefs also say lower New York courts have split over the issue, which is part of why he wants the state’s highest court to speak for itself rather than have a federal court predict the answer.
UMG reads the landscape differently. It says later New York Court of Appeals decisions tightened the implied-right analysis and that state appellate decisions weigh against a civil claim under Section 240.26. UMG also points to civil remedies created for a neighboring harassment provision and argues the omission of a similar remedy here was deliberate.
New York’s Rule 500.27 allows certification when a federal appellate court faces a potentially determinative New York-law issue without controlling Court of Appeals precedent. If the state court accepts, it can order briefing and argument before returning its answer to the federal court. The Second Circuit then uses that answer when resolving the appeal.
Bailey Barnes’s law review article on certifying state-law questions to state courts gets at the trade-off cleanly. Certification lets a state’s own highest court settle unsettled state law, but the extra round of proceedings can slow the federal case.
Drake’s request has already cleared one procedural hurdle without being granted. The January 27 order did not send anything to Albany. It simply put the motion before the merits panel, leaving the panel to decide whether certification is warranted when it considers the appeal.
Even the harassment claim has another layer. UMG argues that Drake would still fail on the statutory elements, including intent, lack of legitimate purpose, and the required course of conduct. Drake disputes those arguments and says factual issues should not be resolved against him at the dismissal stage.
If New York’s Court of Appeals said Section 240.26 can support a private civil action, the Second Circuit would still need to decide what follows in Drake’s case. The panel could confront UMG’s alternative arguments or send the claim back to the district court, depending on how it resolves the remaining appellate issues.
If certification is denied, the Second Circuit does not lose the ability to decide the harassment issue. It can make its own prediction about how New York’s highest court would apply state law and resolve the appeal on that basis. Drake’s motion is essentially an argument that this particular question is important and unsettled enough that New York should answer it directly.
The request sits beside his broader appeal against UMG, but it deals with a much narrower problem. Judge Jeannette Vargas dismissed Drake’s second-degree harassment claim after concluding that New York Penal Law Section 240.26 does not give private plaintiffs a civil right to sue. Drake says New York’s Court of Appeals has never directly answered that question.
Six days after the motion was filed, the Second Circuit referred it to the same merits panel that will decide the appeal. The judges can therefore deal with the certification request alongside Drake’s pending Not Like Us appeal hearing instead of treating it as a separate case.
The fight is really about a state-law gap
Section 240.26 is a criminal harassment statute. Drake is not asking a New York criminal court to prosecute UMG. He is arguing that the statute can also support an implied private right of action, meaning a person covered by the law could pursue civil relief even though the statute does not expressly create a lawsuit.New York courts use a three-part test for implied private rights. They look at whether the plaintiff belongs to the class the statute was meant to benefit, whether a private lawsuit would promote the legislative purpose, and whether allowing one would fit the wider legislative scheme. All three parts matter, with the fight here concentrating heavily on the third.
Drake argues older decisions support allowing civil claims tied to harassment statutes and points to the Second Circuit’s 1973 decision in Galella v. Onassis. His briefs also say lower New York courts have split over the issue, which is part of why he wants the state’s highest court to speak for itself rather than have a federal court predict the answer.
UMG reads the landscape differently. It says later New York Court of Appeals decisions tightened the implied-right analysis and that state appellate decisions weigh against a civil claim under Section 240.26. UMG also points to civil remedies created for a neighboring harassment provision and argues the omission of a similar remedy here was deliberate.
Certification would hand one issue to Albany
Certification does not move the whole Drake lawsuit into New York state court. The Second Circuit would formulate a state-law question and send it to the New York Court of Appeals, which would then decide whether it even wants to accept the question.New York’s Rule 500.27 allows certification when a federal appellate court faces a potentially determinative New York-law issue without controlling Court of Appeals precedent. If the state court accepts, it can order briefing and argument before returning its answer to the federal court. The Second Circuit then uses that answer when resolving the appeal.
Bailey Barnes’s law review article on certifying state-law questions to state courts gets at the trade-off cleanly. Certification lets a state’s own highest court settle unsettled state law, but the extra round of proceedings can slow the federal case.
Drake’s request has already cleared one procedural hurdle without being granted. The January 27 order did not send anything to Albany. It simply put the motion before the merits panel, leaving the panel to decide whether certification is warranted when it considers the appeal.
A state-court answer would not decide the whole lawsuit
A favorable answer on Section 240.26 would not revive every claim Drake brought against UMG. It would address the threshold legal question behind his harassment count, while his defamation and deceptive-business-practices arguments would remain separate parts of the federal appeal.Even the harassment claim has another layer. UMG argues that Drake would still fail on the statutory elements, including intent, lack of legitimate purpose, and the required course of conduct. Drake disputes those arguments and says factual issues should not be resolved against him at the dismissal stage.
If New York’s Court of Appeals said Section 240.26 can support a private civil action, the Second Circuit would still need to decide what follows in Drake’s case. The panel could confront UMG’s alternative arguments or send the claim back to the district court, depending on how it resolves the remaining appellate issues.
If certification is denied, the Second Circuit does not lose the ability to decide the harassment issue. It can make its own prediction about how New York’s highest court would apply state law and resolve the appeal on that basis. Drake’s motion is essentially an argument that this particular question is important and unsettled enough that New York should answer it directly.
