January 7, 2026
Happy New Year! While I’m sure I’m not alone in hoping 2026 will bring some — any — improvement over 2025, it’s also fair to say 2025 wasn’t a total washout. There were some very positive advances, the biggest one, of course, being my partnership with Laura Trachtman to form the law firm of Trachtman & Poler Law LLC. It’s been a blast so far, with a sweet new office in DUMBO and a growing list of interesting clients! Equally important, Laura and I have both learned a lot from each other, sharing our unique experiences and perspectives to expand our individual knowledge and skills.
In the spirit of sharing, I thought I’d kick off the Year of the Horse by recapping some of the most valuable lessons I’ve learned and realizations I’ve come to that I wrote about here in 2025. It will help me remember to practice them in the new year (reinforcement is key!).
- I’ve spent years trying to work out the best techniques to help me do things I don’t like doing, like managing nervous clients or promoting myself. I think I’ve got it down now! Two key steps: identifying the problem, and determining its source. To identify the problem, 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. This list lets me see the things that have carried over for a couple days (or, sometimes more, more!) so I can ask myself why I haven’t completed those tasks. Maybe it’s because it feels hard or scary, requires a difficult conversation with a client, or might reveal that I was wrong about something. Whatever the source, once I figure it out, I can do it, because it represents a challenge — and I love a challenge.
- Notwithstanding my 20-plus years litigating difficult disputes, I don’t enjoy confrontation. So how do I deal with it? By being true to who I am. When an opponent acts unprofessionally, shouting and threatening, I don’t scream, I don’t threaten. I respond calmly and in a measured way. If they keep banging on, and particularly if they insult me or my client, I will hang up the phone or walk away from the meeting. And if my opponent is one of those who likes to bend truth or ignore facts, I make sure I show up to every interaction, negotiation and trial 100 percent more prepared than they are, and armed with an arsenal of viable solutions. I’m here to help people by representing them, bringing my experience and expertise to achieve their desired goal. Pettiness, anger, and loud, loathsome behavior might work for some, but not me.
- Like many nascent attorneys, during law school I got a good internship after my second year, and took a full-time (really, ALL-time) job with them after graduation. Pretty much standard practice. Looking back, I was eager for stability and predictability, and my somewhat chaotic childhood motivated me to choose a well-mapped career path where I would never have to rely on anyone else for financial support. But it wasn’t long before I became less willing to prioritize financial stability over the miseries of working for BigLaw. Eventually, this led to me starting my own firm. That calculation is a key element that I think often gets overlooked by people when they’re mired in the day-to-day of their careers: How much predictability (and income) do you want, how much do you actually need, and how much are you willing to exchange in the short term for more control over your daily work and life and, eventually, long-term satisfaction and earning potential?
- It’s hard to find useful information on business development for lawyers. So I’ve spent a lot of time formulating my own! I’ve learned that the origin point is to give serious thought to a few questions: Who are you? What exactly do you want to do? How do you want to communicate that? Who do you want to work and network with? Perhaps the most important of those questions is, what exactly do you want to do? When I started my firm I worked on a very broad range of cases and matters, basically taking whatever came my way. Guess what? I ended up working on things I had absolutely no interest in and for people I didn’t enjoy spending time with. And in addition to being unhappy with that work, it tends to lead to getting MORE work I didn’t want to do. When I eventually started saying no to cases that didn’t interest me, my work (and my life) became much more satisfying. I was freed to take on interesting cases and work with people I was happy to represent. Plus, it left me time to further refine my skills and deepen my knowledge of the substantive legal areas that I wanted my practice to focus on.
- There have been so many fantastic benefits of my team-up with Laura, but perhaps the most significant to me is the realization that I no longer have to do everything on my own. My default mode in every situation had been, I got this — by myself. But now with a partner and (gasp) an actual employee, I’ve got support. A team! People I can turn to for help when I need it. Plus, having a second set of eyes on any question is especially valuable when the mind behind them brings a different and, often unexpected, perspective. We’re all unique humans and solve problems in distinct ways, and when our talents are combined, that can lead to new and improved results.
So there you have it. A quick recap of some of the positives I can look back on in 2025. Let’s hope for good things for all of us in 2026!
December 23, 2025
By Emily Poler
Why kick back and watch a documentary as a normal person would — to pass some time, maybe learn a few things — when you can analyze its legal issues as an IP litigator? Welcome to my world, where I recently watched Sean Combs: The Reckoning on Netflix, a four-part series that angered its subject, the rapper/producer/felon aka Diddy, enough to have his attorneys send a cease and desist letter to the streaming platform. Having seen the show, I have thoughts on the dispute.
The putative documentary, which premiered at the beginning of December, tells the story — or at least, a story — of how Diddy became one of the most powerful and successful men in hip-hop, his connection to the murders of rappers Tupac Shakur and Christopher Wallace (aka The Notorious B.I.G., aka Biggie Smalls), accusations of sexual assault and abuse, his trial for racketeering and sex trafficking, and his eventual imprisonment (Diddy is currently serving 50 months in jail).
In the letter, Diddy’s lawyers air a number of grievances about the series, and we’ll get to those in a minute. First, though, let’s talk about what Diddy demands: That “Netflix cease and desist from the publication of the so-called ‘documentary’ titled Sean Combs: The Reckoning.” My thought: that’s never, ever going to happen. As Diddy’s lawyers presumably knew when they sent the letter, prior restraint of the media — government action to prevent speech before it actually happens — is really, really, really, disfavored. That means that there was a close-to-zero percent chance that a court would direct Netflix to not air the documentary; as a result, there was little reason for Netflix to pull the plug.
As indicated above, Diddy claims the series is less a documentary and more of a “hit piece,” crafted by his longtime nemesis, executive producer Curtis “50 Cent” Jackson, as the latest salvo in his “irrational fixation on destroying Mr. Combs’s reputation.” What’s more, Diddy accuses Netflix CEO Ted Sarandos of abetting 50 in retaliation for Diddy’s refusal a few years ago to participate in a Netflix series about his life because Sarandos refused to give Diddy creative control over the project. Diddy’s lawyers call the new doc “corporate retribution.”
In a more specific accusation, and one that piqued my interest as an IP attorney, Diddy’s lawyers also claim that some of the footage of Diddy used in the series belongs to Diddy and was obtained in violation of contracts and copyright protections.
Netflix, naturally, has denied all of Diddy’s allegations. Now, whether or not that is honest, given the streamer’s past failures to adequately vet projects prior to release (see here and here), I have no reason to think that Netflix verified the truth of the contents of the series, or their legal rights to materials included in it, before its release. What does that mean? If I had to guess, it means that if (when?) Diddy sues Netflix, the complaint might survive a motion to dismiss. This seems particularly likely given 50 Cent’s involvement and their long, antagonistic history together.
So let’s talk about the accusations that some of the footage in the series was illegally obtained. For those of you who haven’t seen the documentary or any discussion of it on social media, the doc opens with video of Diddy on the phone with his lawyer and contains other footage of Diddy just prior to his criminal indictment. (The scene with Diddy literally taking a jacket off a fan’s back is so cringe.) It appears that this footage was filmed by a third party at Diddy’s behest, but, according to a Diddy spokesperson, “was created for an entirely different purpose, under an arrangement that was never completed, and no rights were ever transferred to Netflix.” The spokesperson implies there was a payment dispute between Diddy and whoever filmed him, and the footage ended up in the documentary producers’ hands without Diddy’s permission. Netflix responded claiming the footage was legally obtained, and presumably, in any lawsuit, they will also claim that their use of this footage was fair use and, therefore, non-infringing.
Even if there was some form of confidentiality agreement between Diddy and the third party who shot the footage, can Diddy use that agreement to stop Netflix from streaming the documentary? Short answer: nope. Longer answer: If he could wield the confidentiality agreement as such, he would have already sought a temporary restraining order.
Taking a broader view of the dispute, are the allegations against Diddy in the documentary defamatory? Among other things, the documentary claims that Diddy had some responsibility for The Notorious B.I.G.’s death in a Los Angeles drive-by shooting, alleging that Diddy had brought Biggie to LA despite warnings he would be in danger, and kept him there instead of letting him leave for a trip to London. If those allegations are false, then Diddy potentially has a claim for defamation, but if they’re true, then the documentary’s allegations aren’t defamatory. As a result, assuming Diddy does sue Netflix and/or 50 Cent, it will be really interesting to see which statements he claims are false.
And if Diddy does sue, this may be a situation where even if he wins, he loses, because he will have to produce evidence that the doc’s statements are false, while Netflix and/or the producers will get to counter with their own evidence. Moreover, because the purpose of defamation claims is to protect a person’s reputation and Diddy’s reputation is, ummm, pretty much in the toilet already, he could end up walking away with exactly zero dollars even if he was able to win on a defamation claim.
For now, the only shots fired are the letter and Netflix’s response, but if the matter does march on to a lawsuit, I’ll be back with updates.
December 16, 2025
By Laura Trachtman
Of late, a number of my clients have faced an Order to Show Cause for a temporary restraining order and a preliminary injunction. Their first question usually is, “What does all of this mean?”
First, an OSC is just a fancy way of saying emergency motion. It’s the vehicle by which a movant (the person who makes the motion) gets their motion in front of the Judge. A regular motion is brought by Notice of Motion, which sets forth the grounds upon which the motion is based and gives the return date (the day when everyone usually goes in front of the Judge and argues the motion). In bringing an OSC, however, you have to demonstrate to the Judge that your request has some support at the very least.
Unlike a Notice of Motion, the OSC isn’t signed by the attorney for the moving party, but by a Judge. In other words, an OSC has to surmount an initial obstacle – convincing the Judge that your request has merit. It’s the same basic paperwork, affidavits speaking to the facts and memoranda of law speaking to the law, but the attorney for the movant has to convince the Judge to sign an Order ordering the defendant to show cause and explain why an(other) Order shouldn’t be issued prohibiting the defendant from doing such-and-such. If your papers aren’t procedurally sound, if you haven’t complied with all of the prerequisites before bringing the OSC, your OSC will be denied. This process is briefly addressed in CPLR § 2214(d), which states in pertinent part, “The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein.” (The last part indicates that the time and the manner are to be specified in the OSC.)
If you convince the Judge that your request has merit and you have satisfied the procedural prerequisites, the Judge will issue a TRO (as it’s usually abbreviated). This is an Order signed by a Judge, which temporarily restrains, or restricts, the defendant from engaging in certain activities. CPLR § 6313 makes provision for such an order, “If, on a motion for a preliminary injunction, the plaintiff shall show that immediate and irreparable injury, loss or damages will result unless the defendant is restrained before a hearing can be had, a temporary restraining order may be granted without notice. Upon granting a temporary restraining order, the court shall set the hearing for the preliminary injunction at the earliest possible time.”
Here, the movant’s burden is clear: They have to demonstrate in the papers supporting their OSC that immediate and irreparable injury, loss or damages will result absent an Order forbidding the non-moving party from engaging in a specific activity. In other words, the purpose of the OSC is to maintain the status quo while a motion for a preliminary injunction is being argued (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C6313:l). The TRO is basically a “pause” button while the Judge reviews the papers supporting, and opposing, the preliminary injunction and issues a decision.
Next, let’s go over the preliminary injunction. First, it’s an injunction, meaning it enjoins, or forbids, one party from doing something. It can also force someone to continue doing something, which is a little confusing (as the word “enjoin” means to prohibit), but it makes sense that if the Courts can stop someone from doing something, the Courts should equally be able to get someone to keep doing something that the party would otherwise stop doing.
Second, the preliminary injunction is a request for pendente lite relief; in other words, only for the pendency of the case, as opposed to a permanent injunction, which is issued at the end of the case. This is memorialized in CPLR § 6301, “A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff.”
There’s a lot of case law on preliminary injunctions, but I’ll put my favorite right here: The Court of Appeals in Aetna Ins Co. v. Capasso, 75 N.Y.2d 860, 862 (1990), held that to be entitled to a preliminary injunction, “plaintiffs had to show a probability of success, danger of irreparable injury in the absence of an injunction, and a balance of the equities in their favor.” Additionally, the Second Department in Blueberries Gourmet, Inc. v. Aris Realty Corp., 255 A.D.2d 348, 349-50 (2d Dept.1998), held that “[t]o sustain this burden [of demonstrating a likelihood of success on the merits], the movant must demonstrate a clear right to relief which is “plain from the undisputed facts” (see, Family Affair Haircutters v. Detling, 110 A.D.2d 745, 488 N.Y.S.2d 204). Where the facts are in sharp dispute, a temporary injunction will not be granted (internal citations omitted).”
The TL;DR of the above is that the movant has to show that they’re likely going to win the entire case, that something really bad will happen to them if the Court doesn’t issue the preliminary injunction, and that all told, it’ll be worse for them than for the other side if the Judge doesn’t issue the preliminary injunction. Further, the moving party has to show that the facts are agreed to by everyone. This is a very heavy burden. Generally speaking, it’s a lot easier to poke holes in an application for a TRO and a preliminary injunction than to bring one successfully.
I’ve argued five applications for a preliminary injunction in the last year – two in the Appellate Division – Second Department, and three in the Supreme Court. Luckily, my clients have been pleased with the results of my efforts so far. While I’m definitely becoming more comfortable with opposing and submitting OSCs (practice makes perfect and all), and I do enjoy the thrill of having the twin challenges of a short turnaround and high stakes, I would be grateful if 2026 could feature more motions and fewer OSCs.
December 9, 2025
By Emily Poler
I’m not much of a sports fan (although I confess to curiosity about the new Professional Women’s Hockey League), so it’s hardly surprising I never pay attention to ads tied into the Super Bowl. Sure, I’ll go to a party on the day to nibble nachos, chat with similarly blasé guests and watch the halftime show (I’m extra excited for Bad Bunny this season), but that’s pretty much where my interest starts and ends.
So, of course, it took something related to trademarks to make me pay attention to the Super Bowl. I’m not entirely sure how it came up, but I think I was taking an online continuing legal education course and the speaker commented on the fact that brands advertising events or products related to the Super Bowl always use phrases like “The Big Game” instead of “Super Bowl,” because they’re afraid of invoking the wrath of the NFL. I was like, “wait, what?”
While any diehard football fan might be well aware that the words Super Bowl are trademarked, I always assumed (if I ever thought about it at all) that others could use those words to describe the event even if the words Super Bowl are covered by U.S. Trademark Registration No. 0882283, filed by NFL Properties, LLC in 1969. (The NFL also has copyrights to the broadcast of the event, and all sorts of other issues arise from there, but that’s a story for another day.) The NFL also has registered trademarks for “Monday Night Football,” “Super Sunday,” “Gameday,” and inexplicably (at least to me) “Extra Points.” And, it turns out, the NFL is extremely aggressive about pursuing any unauthorized use of these trademarks.
As a reminder for the non-trademark cognoscenti reading this, trademarks exist to ensure that consumers aren’t confused about the source of goods or services. In the case of the NFL, that means its trademarks ensure that only goods or services affiliated with the NFL are advertised and sold using its registered branding. Or, looking at it from a consumer’s viewpoint, trademarks are there to indicate that when they buy something that says “Super Bowl,” it’s actually affiliated with the NFL and its “Spectacular Sports Event.”
There are a couple of exceptions to this rule. One is called descriptive fair use. That allows someone to use another’s trademark to describe their product. So, for example, CVS can sell generic ibuprofen with a line that says compare this to Advil.
The other big exception is nominative fair use. This doctrine allows people to use a trademark belonging to another where (1) it would be hard to identify the product or service without using the trademark, (2) the person using another’s trademark only uses as much of the trademark as is necessary to identify the product or service, and (3) there’s nothing to suggest that the person using someone else’s trademark is being endorsed by the trademark owner. So, to stick with the sports world, this doctrine allows me (or, more realistically, someone else) to invite people over to watch a Yankees’ game on TV rather than “a baseball game played by a team from the Bronx bedecked in pinstriped uniforms,” so long as I’m not saying or implying that the Yankees sponsored the event or go completely overboard with logos in my Evite (which is, naturally, a trademark of its own). And, of course, news outlets and commentators (like this blog!) can legally use the phrase “Super Bowl” when referencing the “Magnificent Melee.”
As mentioned earlier, the NFL is known for its diligence in sending out cease and desist letters to just about anyone who dares use any of its trademarks without permission, even churches and Mom and Pop businesses. Why? Selling official sponsorships is a huge part of the NFL’s business. Apple Music, for example, pays $50 million per year to be the official sponsor of the Super Bowl halftime show; other official Super Bowl sponsors have included big names like Verizon, Anheuser-Busch, and McDonalds. In theory, if the NFL let Vito’s Pizzeria on Main Street in Racine get away with advertising its “Super Bowl Stuffed Crust Special” without permission, it would devalue these huge money partnerships.
What’s more, if companies don’t police the use of their trademarks, they can lose them if they are so widely used as to become generic. For example, “aspirin” used to be a trademark but because Bayer didn’t work to prevent its use as a generic word for pain reliever, Bayer lost its trademark protection. Since the NFL intercepts violations so aggressively, no one can try using “Super Bowl” and then argue in court that the phrase has been allowed to become generic.
The NFL is also probably so combative because it can be. Quite frankly, if the bar down the street gets a cease and desist letter from the NFL, it’s just going to stop using whatever trademarks are at issue and say sorry. Who would have the balls to go up against one of America’s richest and most powerful institutions and its army of lawyers? (If you do own that bar and you’re up for a fight, call me! I’m here for it.)
All that said, there are some instances indicating that in light of, at very least, nominative fair use, the NFL’s rights might not be as broad as it has pretty consistently maintained. For example, in the show Ballers, HBO extensively used NFL team names and logos without the NFL’s consent and, as far as I know, the NFL never sent a cease and desist or sued HBO. The same is true of a 2015 film called Concussion. Maybe because the league didn’t want to draw attention to these high-profile media properties and their focus on the darker side of football (like chronic traumatic encephalopathy)? Or maybe because they didn’t want to go up against an opposing party where they might lose, thus creating a negative precedent.
With tens of billions of dollars in revenue generated every year, the NFL has the resources to be exceedingly — even excessively — diligent in its pursuit of maintaining an elite brand. Its profits are enormous and ever-increasing, and their strategy is seemingly successful, but of course, one has to wonder if the danger of being known as an entity that uses its power against the bar down the street or a local church, is really a winning PR strategy in the long term.
In the meantime, bring on Bad Bunny and, maybe, a Superb Owl party?
December 2, 2025
By Laura Trachtman
I really love being a litigator. I love the challenge, the intensity, the stamped copy of a document signed by a judge saying, “Oh no, she is absolutely right.” But not everyone feels that way. Litigation is all-consuming in terms of time, money, and energy. So why litigate?
Here is the caveat: Many of you know that I was raised by a litigator, my late, lamented father, Alan Trachtman. The story of the birth of my career as a litigator goes like this: The whole family was at my grandparents’ place out on Long Island to celebrate a holiday. My big brother, David, allegedly engaged in some conduct that displeased my parents. He was warned to stop once, then twice. After a third warning, he was sent to his room as a punishment for disobedience. At the ripe old age of two, I said to my parents, “David shouldn’t be sent to his room. He is a good boy. He didn’t understand that what he was doing was wrong, and even if he did, he’ll never, ever do it again.” My father, Chief of the Supreme Court Bureau in the Kings County District Attorney’s Office at the time, turned to my mother and said, “She just argued that case better than half of my assistants.” Accordingly, he trained me from a young age to cultivate this particular predilection by fabricating the following rules for my childhood: “If you want something, tell me why. If you throw a tantrum, you’ll never get it.” “Get good grades and I’ll reward you.” And finally, “You can be anything you want after you go to law school, [which later changed to “after you pass the bar” and then to “after you get admitted to practice].”. So obviously, this is the only life I have known and I adore it.
Not everyone was raised by Alan Trachtman, however, so it helps to explain how I approach the topic of litigation in discussions with my clients. The first thing I say is that “in litigation, the only people who win are the attorneys.” And generally speaking, this is true: We get paid regularly or we leave the case, while the parties need to wait for either a judgment or a settlement to get paid. And even then, the relief they fought for is not always guaranteed. However, litigation is sometimes what a client needs, for whatever reason. I want to do the best job possible for my own sake if not for my client’s, and that entails navigating three distinct areas: litigating effectively, litigating through uncertainty, and handling aggressiveness in litigation.
How do I litigate effectively? Honestly, it basically comes down to paying attention. I have had maybe two motions to dismiss granted on complaints that I have authored in my entire career, because properly pleading is not hard, it is just time-consuming. The most important part of litigating is having the discipline not to rush, no matter how much you may want to. You need to take your time to ensure that you are doing everything correctly. This has been a struggle for me (I am sure you are clutching your pearls right now as I admit to impulsivity and lack of patience). But as I grow older, it becomes easier to be patient.
How do I deal with the uncertainty of litigation? When a client asks me a question and I am not sure about the answer, I use three simple words: “I don’t know.” It is amazing how freeing it is to simply admit lack of knowledge instead of bluffing and possibly getting yourself into trouble. I used to hate admitting that I did not know something; I felt like a failure. But as I tell the children in my life, it is okay to admit that you just don’t know. The important part is knowing how to get the answer. So, when a potential client wants me to take on a case that is not necessarily in my wheelhouse, I tell them upfront that this is not an area I know already, but I can either get myself up to speed or make a referral to another attorney.
How do I deal with the aggressiveness of litigation? This is where my lifelong legal training comes in. It helps that I have a naturally aggressive disposition (and again, I’ll pause for you to clutch your pearls). But as my mother always said: “Not every fight is a fight to the death.” Again, as I grew older, I learned that her wisdom is valid. While I am happy eviscerating opposing counsel, one catches more flies with honey than with vinegar, and so I always try to start with a cooperative approach. Once I have good cause to go for the jugular, I’ll avail myself of the opportunity, but until then, I remain civil. This has helped my clients on more occasions that I can count. This has also helped me: It takes more effort to point out the errors of others in excruciating detail than it does to communicate diplomatically. So by not constantly taking someone’s head off, I get to conserve my energy and foster a more positive exchange. It is a win-win.
All of that to one side, litigation is exhausting, even for someone like me who loves it. At some point, I am going to have to decide whether I want to continue down this path or switch to a less impactful form of practice. Luckily, that day is not today. And if you’ll excuse me, I have to go gleefully explain to a judge how opposing counsel is totally and utterly wrong.
