November 18, 2025
By Laura Trachtman
When a new client approaches me for help with a discrimination matter, the first question I ask is where they, or their employer, is located. I do this for two reasons: One, I need to ensure that I can actually represent the client (for example, I am not barred in Washington, DC, so I cannot help people who live/work there) and two, if I can represent the client, I need to pinpoint which laws are applicable to their specific situation. In general, three laws are available to New York residents: the federal, state, and city statutes. Let’s examine the pros and cons of each one.
Title VII
A client can sue under multiple federal statutes: Title VII (discrimination based on race, color, religion, sex, and national origin), the Americans with Disabilities Act (discrimination based on disability), the Age Discrimination in Employment Act (discrimination based on age), and the Equal Pay Act (wage discrimination based on sex).
Title VII is the most stringent of the anti-discrimination laws in terms of requirements. It is the only statute of the three which demands a procedural prerequisite: An employee must file a claim with the Equal Employment Opportunity Commission within 180 days of a qualifying event. The EEOC then sends a notice of the charge to the employer. Once the employer responds and the EEOC conducts an investigation, one of three events will occur: If the EEOC is unable to determine whether the law may have been violated, the EEOC will send the employee a Notice of Right to Sue. If the EEOC determines that the law may have been violated, the EEOC will attempt to negotiate a voluntary resolution with the employer. If no resolution can be reached, and the EEOC (or the Department of Justice) determines that they will not bring a case, it will send the employee a Notice of Right to Sue. The last scenario, where the EEOC determines that the law may have been violated and thus they should file suit on the employee’s behalf, almost never affects private practitioners, obviously, as the feds have taken the case.
The Notice of Right to Sue is vital in any case where Title VII is asserted. Without a Notice of Right to Sue, the client is prohibited from bringing a cause of action grounded in Title VII, except in two cases: actions brought pursuant to the Age Discrimination in Employment Act and the Equal Pay Act.
Finally, bringing a lawsuit pursuant to Title VII requires that the discrimination be “severe and pervasive.” This standard makes demonstrating liability extremely difficult. For example, a single act (such as grabbing someone’s private parts) can be severe and pervasive as a matter of law, but in most situations nowadays, it’s almost impossible to demonstrate severe and pervasive discrimination. This is because most bigotry these days is insidious, not blatant: I rarely encounter situations where a boss will slap his secretary on the rear end, or a manager will refer to his Black employee as the N-word. This societal shift makes demonstrating severe and pervasive very challenging.
Under Title VII, compensatory and punitive damages are capped based on the size of the employer: With 15 to 100 employees, the cap is $50,000; with 101 to 200 employees, the cap is $100,000; with 201 to 500 employees, the cap is $200,000, and with more than 501 employees, the cap is $300,000. Luckily for the employee, this cap does not apply to backpay, frontpay, or interest thereon, so the total recovery is not capped, assuming one has sufficient backpay/frontpay to make a difference, which isn’t always the case if someone is earning minimum wage.
As a federal agency, the jurisdiction of the EEOC covers the entire United States, which is its biggest benefit, although most States also boast a State law that mirrors Title VII. A claim under Title VII is a federal question, and thus a lawsuit under Title VII should be brought in the federal courts. The main issue with Title VII right now is that due to President Trump’s January 2025 Executive Orders, the EEOC is not prosecuting cases brought by transgendered individuals. You can see my three previous posts on that EO here, here, and here.
New York State Human Rights Law
The New York State Human Rights Law is codified as Executive Law § 296, and was originally passed in 1945 as the Law Against Discrimination – the first of its kind amongst the states. Like many state statutes, the NYSHRL was eventually patterned upon Title VII, and thus required that the discrimination be severe and pervasive to establish liability. However, former Governor Andrew Cuomo, in an amazing move for a man who later left office due to allegations of sexual harassment, changed the NYSHRL in 2019 to be patterned upon the New York City Human Rights Law (more on that below). With a stroke of the pen, it became easier to demonstrate liability for discrimination; determining whether the discrimination is severe and pervasive is reserved for the assessment of damages. And unlike Title VII, there is no cap on damages.
The NYSHRL has two other big advantages over Title VII: One, there is no procedural prerequisite to filing a lawsuit in state court. In other words, an employee need not first file a claim with the New York State Division of Human Rights, which is the state division created by the NYSHRL, to be able to sue their employer in court. Two, the NYSHRL created the State Division of Human Rights, which is endowed with the power to eliminate and prevent discrimination.
In practical terms, this means that if an employee does not want to file a case in the Supreme Court of the State of New York, they can file with the State Division of Human Rights itself, which conducts its own investigation into the allegations. This obviates the need for an employee to hire an attorney to file a complaint on their behalf. At the same time, the Division of Human Rights is cognizant that many people still want an attorney, and this agency will work with the employee’s attorney to complete their investigation into the employee’s allegations.
As a state agency, the jurisdiction of the Division of Human Rights’ jurisdiction covers the State of New York. Cases brought under NYSHRL are brought in the state courts.
New York City Human Rights Law
The third law applicable to New York City residents is the New York City Human Rights Law, which is codified as Administrative Code § 8-107. This one is my personal favorite.
Originally passed in 1965, NYC’s first Black mayor, David Dinkins, signed a 1991 amendment into law to ensure that the NYCHRL was construed independently from similarly worded provisions of state and federal law. In speaking at the bill signing, Mayor Dinkins stated that the bill gives NYC the most progressive human rights law in the nation and reaffirms New York’s traditional leadership in civil rights. To that end, and to establish liability for discrimination pursuant to the NYCHRL, an employee must only demonstrate that they have been treated differently based on protected characteristics. This is crucial, as most times (as I discussed above) discrimination is insidious and not blatant, and so demonstrating that an employee has been treated differently is significantly easier.
The NYCHRL created an agency to investigate allegations of discrimination; and no procedural prerequisite is required to file a lawsuit grounded in the NYCHRL in the New York State Supreme Court, and like the post-2019 NYSHRL, the issue of whether the discrimination is severe and pervasive is reserved for damages. Furthermore, there is also no cap on damages. Note that the jurisdiction of the NYCHRL is limited to acts within NYC or tied to NYC, and cases brought under NYCHRL are filed in the state courts.
In conclusion, while there are three viable statutes which offer relief for claims of discrimination, it is easiest to prove discrimination under either the NYCHRL or the NYSHRL. An employee can bring causes of action grounded in both city and state statutes in the federal courts alongside a Title VII claim (should the action be filed in the EDNY or SDNY), but should the federal judge dismiss the Title VII cause of action, then the judge will likely remand the case to the state courts for lack of federal jurisdiction. For that reason and others, I prefer to bring cases in the state courts under the NYCHRL and/or the NYSHRL.
November 11, 2025
By Emily Poler
In a recent post, I talked about how I dislike conflict despite working in a profession built on adversarial relationships — and how I’ve learned to manage obnoxious opponents on my own terms. Doing that well is a super important skill. You know what skill is equally valuable for us litigators (and really, everyone)? Effectively dealing with things that feel hard or uncomfortable to do and that, as a result, we procrastinate over, ultimately making them even harder to accomplish.
It’s a topic that doesn’t get a whole lot of attention and is certainly not taught in law school, which is really about legal theories, statutes, and precedents. Of course, after graduation you can take courses to learn how to write a good brief, handle a difficult witness, or trawl the darkest depths of the Federal Rules of Evidence, but there’s very little institutional knowledge about how to handle the non-legal tasks, like managing nervous clients or promoting your own firm, that don’t come easily — and, for everyone, there’s always something that doesn’t come easily.
(Side note: While I haven’t been able to find any recent statistics, there have been studies suggesting that alcoholism is pretty common in the legal profession. It’s not crazy to speculate that there’s some causal relationship between the lack of training about how to manage the stressful aspects of being a lawyer and heavy drinking.)
Ok, so boozing aside (which I don’t do), what are the techniques I’ve learned to help me when I have to do something, whether as a lawyer or business owner, where I don’t feel comfortable? It comes down to two steps: Identifying the problem, and then determining its source.
The first step is critical because I can’t deal with headaches that I haven’t identified. The difficulty I had producing this blog is a perfect example. Before I started regularly writing this blog, I spent a long time wanting to do it. I had mental plans to do it. Plenty of good intentions. I just didn’t get started. Every morning I would come into the office believing that day was going to be the day, and everyday I would skulk home under a cloud of failure. Facing what was making me avoid this task was a crucial part of doing it.
More recently, I’ve implemented a strategy to avoid this problem, or at least minimize it. Pretty much the first thing every morning I write out, by hand, a list of what I want to get done that day, copying items from the previous day (or days) that I haven’t yet completed. For whatever reason, writing this by hand seems to be the key for me to focus and internalize information.
Obviously, there are days where things don’t get done because I’m on a deadline on another matter or in court. However, this list lets me see the things that have carried over for a couple days (or, sometimes more, more!) and ask myself why I haven’t completed those tasks. Is it because there’s something about the work that feels hard or scary? Is it because doing something is going to require a difficult conversation with a client? Is it because it might reveal that I was wrong and might have to change my position?
I can also flip back through my lists to see if there are common factors among the types of projects I tend to avoid.
So, staying with my struggle to start this blog as an example. Once I realized the pattern, I asked myself, why am I not doing it and what’s stopping me? Asking this question, I realized that I didn’t feel comfortable with my writing voice and there was a good dose of imposter syndrome lurking. This let me get some help and figure out ways around the problem. (Thanks Gregg Lieberman.)
So, now that I had a clue about why I was avoiding this particular task, I did it! Why? Because the easiest way to get me to do something is to tell me I can’t do that thing. I love a challenge.
These steps have been incredibly helpful. More than that, I’d say that by repeatedly going through this process and finishing tasks I had avoided, I’ve learned that things I thought were scary or hard weren’t actually scary or hard. And, even more importantly, the results have proved to be a lot more positive than I ever thought they would be.
And with that, I’m off to write something else I’ve been avoiding!
November 4, 2025
By Laura Trachtman
Have you ever stopped to think about unjust enrichment as a cause of action? It’s wild. It’s neither a breach of contract cause of action nor a tort, and it’s grounded in equity. The entire purpose of the cause of action is to prevent unfairness.
What is unjust enrichment? The Court of Appeals in Columbia Mem’l Hosp. v. Hinds, 38 N.Y.3d 253, 275, 192 N.E.3d 1128, 1137 (2022) sets forth the following important notes on the cause of action (all internal citations and quotations removed):
- Unjust enrichment lies as a quasi-contract claim and contemplates an obligation imposed by equity to prevent injustice in the absence of an actual agreement between the parties
- Unjust enrichment claims are rooted in the equitable principle that a person shall not be allowed to enrich [themselves] unjustly at the expense of another
- The essential inquiry in any action for unjust enrichment … is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered
- To recover under a theory of unjust enrichment, a litigant must show that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered
- An unjust enrichment claim is undoubtedly equitable and depends upon broad considerations of equity and justice and, to determine if it is against equity to permit a party to retain what is sought to be recovered, courts look to see if a benefit has been conferred on the defendant under mistake of fact or law, if the benefit still remains with the defendant, if there has been otherwise a change of position by the defendant, and whether the defendant’s conduct was tortious or fraudulent
What is a quasi-contractual cause of action? It’s a cause of action where one party receives the benefit of another party’s efforts. It doesn’t require mutual assent, because it’s not an actual contractual cause of action.
What’s equity, and what’s an equitable principle? Simply put, equity is about fairness. In a case involving unjust enrichment, the important inquiry is whether it’s fair to allow the party which received the benefit to keep it. Put another way, the important inquiry is whether allowing the party to keep the benefit is unfair to the person conferring the benefit.
There also must be a relationship between the party who was enriched and the party who did the enriching that could have caused reliance or inducement. While there needn’t be a fiduciary relationship, at least some special relationship needs to be in existence.
Where does unjust enrichment fit in? That’s the big question. It doesn’t result from an oral agreement where one party stiffed another: that’s a contractual cause of action. It doesn’t result from one party stealing from another: that’s a tortious cause of action. It doesn’t result from one party giving something to another and then changing their mind, either. Instead, it exists in the narrow space between tort and contract where one party receives a benefit from another party and it simply would not be fair to allow the receiving party to keep the benefit.
The pattern jury instructions are helpful in understanding this entire cuckoo bananas cause of action:
While unjust enrichment is termed a quasi-contractual cause of action, it is not based on a contract or promise at all; it is an obligation that the law creates, in the absence of any agreement, when the acts of the parties or others have placed in the possession of one person money, or its equivalent, under such circumstances that in equity and good conscience he or she ought not to retain it. In such circumstances, equity merely intervenes to deem the parties in privity to each other, E.J. Brooks Company v Cambridge Security Seals, 31 NY3d 441, 80 NYS3d 162, 105 NE3d 301 (2018). The contract is a mere fiction, a form imposed in order to adapt the case to a given remedy; the law creates it, regardless of the intention of the parties, to assure a just and equitable result, E.J. Brooks Company v Cambridge Security Seals, supra; Clark-Fitzpatrick, Inc. v Long Island R. Co., 70 NY2d 382, 521 NYS2d 653, 516 NE2d 190 (1987); Core Development Group LLC v Spaho, 199 AD3d 447, 157 NYS3d 416 (1st Dept 2021) (unjust enrichment imposes obligation in equity to prevent injustice, in absence of actual agreement between parties).
So, why bother to plead unjust enrichment? It’s a good idea to plead unjust enrichment in situations where you’re not sure whether your contractual cause of action is going to bear out successfully, or you don’t have one. It also works well when you’re not sure about a tortious cause of action, like conversion, will succeed. I usually see it coupled with breach of fiduciary duty, which makes sense, as it would be inequitable to allow someone to retain a benefit gained which they haven’t earned.
In sum, unjust enrichment is a tricky cause of action, but it’s one that I really like, because if all other causes of action fail, but if the Court thinks that it is unfair to allow the other side to retain the benefit at issue, it’s entirely possible that a client could receive restitution.
October 28, 2025
By Emily Poler
Remember the felonious financial and pharmaceutical mogul Martin “Pharma Bro” Shkreli? Back in 2015 he paid $2 million for the only copy of Once Upon a Time in Shaolin (the “Album”), a double CD by hip-hop collective Wu-Tang Clan. According to the Clan, their aim was to make a singular recording on the level of fine art (it also came in a fancy box) as a commentary on the devaluation of music in a digital world. Wu-Tang, to ensure the Album remained unique, required Shkreli to sign a restrictive purchase agreement preventing him or any subsequent buyer from copying or exploiting the album beyond certain permitted uses, such as a private listening party, for 88 years. What’s more, Shkreli (and any subsequent owner) could only resell the Album to a third-party under those same terms and conditions.
As we all know, things soon went downhill for the much-reviled Shkreli. In 2017, he was convicted on federal securities fraud charges and sentenced to seven years in prison and ordered to forfeit over $7 million in assets, including the Album. The forfeiture order also barred Shkreli from acting in any way that would harm the value of the forfeited assets.
Fast forward a few years to 2021, when PleasrDAO, a “Decentralized Autonomous Organization” of digital artists and NFT collectors who buy, fund and display culturally significant media for the purpose of creating “unique experiences,” purchased the Album for $4 million in crypto (naturally), later making a brief sample of it available to anyone who bought a $1 NFT it issued. (Each purchase reduces the time until the album can be revealed in its entirety by 88 seconds — the “unique experience” in this case).
Of course, Shkreli couldn’t just fade away into the background of the story. After his release from prison in 2022, Shkreli repeatedly proclaimed on social media (without any acknowledgment of the irony) that he had retained digital copies of the Album. He also hosted a “listening party” on Xwitter where almost 5,000 people listened to his broadcast of the album. Maybe he just forgot the rules? Oh, probably not.
Unsurprisingly, PleasrDAO was not happy with this. The organization filed a complaint against Shkreli alleging, among other things, violations of the Defend Trade Secrets Act (“DTSA”) and state trade secret law. Shkreli moved to dismiss these claims on grounds that PleasrDAO hadn’t alleged a “secret” sufficient to bring the album within the protection of trade secret law.
For those who may not be familiar with the DTSA and state trade secret law, they apply to a range of “financial, business, scientific, technical, economic, or engineering information….” Generally, this means things like customer lists, formulas, procedures, etc. To qualify for protection under these laws, the party possessing the information has to show that it has taken efforts to guard its secrecy and/or that it could not be easily duplicated by others.
Here’s where things get interesting. On September 25, 2025, the Court denied Shkreli’s motion to dismiss PleasrDAO’s trade secret claims, finding that, while ”the Album does not fit squarely within a category of business information or data that is traditionally protectable as trade secrets…,” at least at this stage of the litigation, the Plaintiff had adequately alleged that the Album could qualify as a trade secret. Why? Because the Court recognized the album was “subject to significant restrictions regarding its distribution” as Plaintiff took significant measures to protect its secrecy, and its value rests on the fact that it hadn’t been heard by the public at large. Here, the Court noted that the Album, unlike musical works that other courts previously found were NOT trade secrets, derived its value from the fact that it was intentionally “secret” as opposed to just unreleased.
This is an interesting decision and perhaps wholly unique given the weird facts of the case — an Album with only one copy, subject to an agreement prohibiting its duplication, and also worth a lot of money. My one big question, though, is whether the Album really qualifies as either “financial, business, scientific, technical, economic, or engineering information,” per the accepted definition of a trade secret. Just based on what trade secret law generally protects — financial data, prototypes, business plans — I’m not so sure. That said, plenty of courts have held that trade secret law protects all forms of business information, and while the Album doesn’t feel like business information to me, I can’t really come up with a good dividing line for what is or isn’t business information. This is particularly true given that the value of the Album is rooted in its being secret, and that PleasrDAO is literally in the business of providing “unique experiences,” which in this case is based on its method of slowly revealing that secret through its NFT offering.
In terms of wider implications, it’s conceivable that classifying this Album as a trade secret may open the possibility of a new category of trade secrets and encourage other creators and owners of art to try and protect their works under relevant law, especially as it pertains to digital art that is easily copyable but whose value is based on limiting access. The whole thing might, as in the title of one of the best-known Wu-Tang tracks, “Bring Da Ruckus” to our traditionally accepted definition of trade secrets.
October 21, 2025
By Laura Trachtman
Did you ever wonder whether you’d need to revisit the issue of whether slavery still exists in the United States of America in this, the Year of Our Lord 2025, 160 years after the end of the Civil War? If you did, count yourself lucky, Dear Reader, because we have a humdinger of a case, Yeend et al. v. Akima Global Services, which is currently pending in the Western District of New York.
The Plaintiffs are a certified class of noncitizens (ICE’s term) who were or are detained in the Buffalo Federal Detention Facility, which is operated by Akima Global Services ( “AGS”), a for-profit corporation. The Plaintiffs allege that, not only were they forced to work for AGS in violation of the Trafficking Victims Protection Reauthorization Act (“TVPRA”), but that, in violation of New York Labor Law and Federal Labor Standards Act, they were paid a whopping $1.00 per day, and that this served to unjustly enrich Defendant.
Defendant moved for summary judgment on all of Plaintiffs’ claims. On the TVPRA, Defendant claimed that Plaintiffs were not held in involuntary servitude “threatened with or subjected to serious harm or any other coercion,” and Plaintiffs “cannot prove that Defendant knowingly coerced their labor.” WOW is that not an argument I would want to present to the judge. The Court was not impressed with Defendant’s arguments, and noted that Plaintiffs submitted declarations from detainees who claimed they were subject to collective punishment including a housing-unit wide “shakedown” by dozens of Defendant’s officers while Defendant’s supervisory officer claimed that he did not recall the specifics of that event.
Defendant argued that Plaintiffs’ New York State Labor Law and FLSA claims should be dismissed because Plaintiffs were not “employees” and, therefore, not within the protections of those laws. Here, Defendant relied on case law addressing the application of New York State Labor Law to prisoners. In denying the Defendant’s motion, the Court noted that Defendant’s reliance on case law concerning the labor law’s application to prisoners in prisons is not persuasive when it comes to the labor law’s application to detainees in detention centers. Furthermore, the Court cited to Plaintiffs’ argument that:
AGS’s supervision of the V[oluntary] W[ork] P[rogram, wherein a detainee may “volunteer” to work in order to earn money for her or his commissary] clearly evinces the control of an employer. AGS assigns detainees their jobs and determines workers’ shifts. . . . It provides job training to detainee workers. . . . AGS maintains records of which detainees performed which jobs on each day. . . . AGS staff supervise detainee workers to ensure they perform their job adequately and they can fire detainees for poor performance. . . . AGS provides detainees with the materials and supplies they need to perform their jobs. . . . AGS pays detainees by depositing pay directly into workers’ commissary accounts and keeps records of those payments. . . . AGS determined that detainees would be paid $1 per day of work and no more than $5 per week, regardless of the number of hours or days worked. . . . In short, AGS controls all aspects of VWP participants’ job performance, from hiring, training, and supervising to setting pay policies and depositing funds into workers’ accounts.
Finally, the Court addressed Defendant’s motion for summary judgment against Plaintiffs’ claim for unjust enrichment, wherein Plaintiffs essentially argued that Defendant was becoming rich off of Plaintiffs’ slave labor. Defendant argued that Plaintiffs’ unjust enrichment claims failed because Plaintiffs have not demonstrated that any of their labor directly benefitted Defendant, in part because the Contract did not obligate Defendant to provide various services which detainees performed. The Court found this argument contrary to contemporaneous documents in the Court record, noting specifically that Defendant’s President and corporate representative testified during a deposition that, in essence, that AGS relied on the detainees working in the kitchen to make AGS profitable. Please recall that these detainees were paid $1.00 per day; that’s 12.5 cents per hour for an 8 hour work day, and less if they worked more.
Take a moment to re-read the foregoing paragraph. In other words, these detainees are human beings who are forced to work for ONE DOLLAR A DAY so a corporation can make a profit. Consider that this is happening in America today. (And before you scoff that “this couldn’t ever happen to me – I’m an American citizen!” please be aware that over 170 American citizens have been detained by ICE at raids and protests. Furthermore, United States Army veterans have been injured and arrested at protests against ICE.)
The Thirteenth Amendment prohibits slavery or involuntary servitude in the United States, yet detainees, who haven’t been convicted of a crime, are literally forced to work for $1.00 per day so a corporation can make money. If that isn’t involuntary servitude, I don’t know what is.
