February 17, 2026
By Emily Poler
Last week, of course, many of us watched or were at least in the presence of the Big Game (aka the Superb Owl), so I thought it would be appropriate to post today about something related to it. Alas, the only part I really paid attention to was the halftime show (who won the game? Who even played?), and as much as I’d like to unpack Bad Bunny’s many messages here, there’s no angle that’s really appropriate for a legal blog. (I’ll just say that as someone who grew up in a neighborhood that was heavily Puerto Rican, I loved his culturally celebratory performance.) But looking deeper, I did find something relevant to a very popular aspect of America’s favorite Sunday: the commercials! So, let’s talk about the dumpster fire that is Michael Bay’s lawsuit against Cadillac’s Formula 1 team and Translation, the creative agency it worked with to create an ad for the Super Bowl.
In case you’ve forgotten (or are a thinking adult), Michael Bay is a film director. Since the late-1990s he’s directed a slew of big budget action movies where lots of things go bang and boom, including “Bad Boys” I and II, “Armageddon,” and, yes FIVE Transformers films.
Formula 1, or F1, racing is the long-standing international auto racing league whose single-seat, open-wheel cars look like rockets with big fat tires on the outside of the futuristic bodies. F1 races are held on road and street tracks; if you’re not an aficionado, the most famous event you may have heard of is the Monaco Grand Prix. (By contrast with F1, NASCAR races the same cars you and I drive, just heavily modified and covered with logos, and mostly on oval tracks).
F1 teams belong to either automotive companies or very rich people like Dan Towriss, CEO of the group that owns the Cadillac F1 team. In late 2025, Towriss approached Michael Bay about developing a multi-million dollar commercial that would introduce Cadillac F1’s debut on the F1 circuit in an “American” way during the “most American” of events (the Super Bowl), with Towriss declaring he wanted to hire “the most American director [he] could find.” (Minor digression, but how exactly does making CGI-heavy movies based on kid’s toys where alien robots turn into cars make Bay “most American director”? I have some serious suspicions about the foundation for this claim, but that’s a story for another day.) Bay has made Super Bowl ads before and has also previously worked with General Motors (Cadillac’s parent company).
According to Bay’s complaint, he and his team of more than a dozen people spent time developing ideas for the commercial and presented them to Towriss who, at that point, allegedly told Bay to “get to work, with Bay’s producer documenting in writing that Towriss “hired Bay to conceptualize, produce, and direct the commercial.”
With the schedule super tight if they were going to finish in the mere two months before the Big Game, Bay and team immediately started creating mockups and schedules and identifying filming locations. But a week later, according to Bay, he was abruptly informed that the Cadillac F1 team wanted to “go in a different direction” and use someone else to complete the commercial — with no compensation for the time and work Bay put in. The reason, according to Cadillac F1, is that “after two meetings, it became clear he couldn’t meet our timeline, and there ultimately wasn’t a path forward.”
In his suit, which was filed hours before the commercial aired, Bay claims there was a verbal agreement between him and the Cadillac team pursuant to which the Cadillac team would pay Bay for his work, as well as the costs he and his team incurred. He also claims that the Cadillac team stole his ideas and engaged in fraud because they promised Bay to pay for certain goods and services even though they didn’t intend to abide by those promises. In response, Cadillac F1 says the concept and creative were already in place and they had only discussed hiring Bay as the commercial’s director.
Before I get into the merits (or lack thereof) of Bay’s case, let me point out the obvious: Don’t ever start work on a project without getting a written contract! Everyone involved here was a sophisticated actor with tons of experience; why did no one bother to say, hang on a sec, let’s sign an agreement? This applies not just to Bay but also to everyone on the Cadillac side as well, which apparently didn’t consider the possibility that halfway through the project Bay might abandon it or suddenly demand more money to finish it. The explanation for both sides’ mistakes, I suspect, is that Towriss was a loose cannon acting on his own in his discussions with Bay, instead of leaving things to the pros at the Translation agency who deal with this sort of thing every day, while for Bay’s part, he was aware of the time crunch and figured Towriss’ word was bond.
All that aside, Bay’s lawsuit is pretty flimsy. First, generally speaking, ideas are not protectable. Here, Bay’s idea for the commercial centered around an “overall, impressionistic, ‘dream’ theme, which would show the Cadillac F1 car as the engineers’ dream brought to reality.” This concept in and of itself can’t be protected, and neither Bay nor anyone else can own this idea. Once it’s produced as an actual commercial, that’s another story, of course: The actual commercial is protectable, but the underlying idea is not.
Meanwhile, Bay’s claim for fraud, based on his accusation that the Cadillac F1 team didn’t intend to honor its promise, is a waste of time. Fraud requires the plaintiff to allege and ultimately prove that the statement at issue was false at the time it was said. In other words, this means that Bay will have to show that the Cadillac team had a secret intention to not follow through on its promise to pay Bay for his services while intending not to ultimately work with him. Is it possible Cadillac F1 acted in such a manner? Sure. Can Bay prove it? Highly unlikely. Saying someone didn’t intend to abide by a contract is almost never fraud and such claims are almost always dismissed. In my view, they tend to make the party asserting them look silly and if I was Bay’s attorney, I would strongly urge him to avoid such an embarrassing claim.
Bay is seeking $1.5 million for his director’s and producer’s fees and the costs incurred by him and his team, as well as punitive damages. And if that doesn’t succeed, I’m sure he can take his revenge someday by crushing a Cadillac in “Transformers VIII.” On Mars. By a giant robot’s foot, most likely.
February 3, 2026
By Emily Poler
Is one of these things a little too much like the other?
I’d like to say, you decide. But nope. The lawyers are involved.
Last week, McIlhenny Co., the company behind the ubiquitous Tabasco hot sauce, filed a lawsuit in Texas against Stoli Group (USA), LLC, asserting that Stoli’s spicy vodka, which hit shelves in December, infringes on Tabasco’s trade dress and that Stoli is engaged in unfair competition.
So what’s likely to happen? What are the merits of the parties’ respective positions? What the heck is trade dress, and is it what I wear to a formal affair? (OK, maybe not that.)
Before we get to these burning questions, let’s ask another: Why did Stoli pull this obvious copycat move? Well, there’s history. In 2024, Stoli and McIlhenny had initial discussions “about the potential development of co-branded pepper sauce vodka” that would be marketed under both the Tabasco and Stoli trademarks. However, McIlhenny “ultimately decided to go in a different direction and terminated discussions.” That different direction turned out to be a partnership with one of Stoli’s most famous competitors: Absolut Tabasco, which just launched. Zing!
Undaunted by McIlhenny’s rejection, Stoli continued development on its own, and in December, debuted its own peppery vodka product in the bottle pictured above that bears an unsubtle similarity to the Tabasco container — a design that, according to McIlhenny, is quite similar to what Stoli proposed to them for their potential co-branded product:
Trade dress is the official phrase that covers the shape and design of a product’s packaging. Think of the clear glass bottle with ridges and a red cap for Coca-Cola, or the squareish shape of a bottle of Maker’s Mark with its red wax seal on top. Here, it’s quite obvious that McIlhenny has trade dress rights, including, at a minimum, the green and red color scheme of Tabasco’s cap and labels. In fact, as it points out in its complaint, the company has at least four trademark registrations for Tabasco’s trade dress.
Case closed, right? Ah, but there’s a hitch. McIlhenny’s registrations, in the language of the United States Patent and Trademark Office are for “[c]ondiment-namely, pepper sauce,” “clothing, namely [t]-shirts and ties,” and (somewhat inexplicably), “pre-recorded audio and video compact disks featuring music, recipes and antique labels for educational, amusement, cultural and artistic purposes; computer mouse pads; neon signs and decorative magnets.”
Based on what’s in the complaint, McIlhenny does NOT have a registration covering beverages, alcoholic or otherwise. (As much as it would be fun on a slow day, I have not done a deep dive into McIlhenny’s full trademark portfolio, although I’m quite sure they don’t have any rights over Mexico’s Tabasco state.) The lack of beverage registration could make it hard for McIlhenny to pursue its claim for trade dress infringement. That doesn’t mean that they’re without rights here.
Clearly, regardless of whether the packaging is for “computer mouse pads; neon signs and decorative magnets” or for alcoholic beverages, the packaging for Tabasco is quite recognizable. So even if McIlhenny’s claim for trade dress infringement doesn’t go anywhere, its claim of unfair competition may fare better.
What’s likely to happen here? McIlhenny is requesting a preliminary injunction preventing Stoli from using the bottle until the lawsuit heads to trial. Ultimately, though, I predict the case will settle. For one thing, in 2024 Stoli Group (USA) filed for bankruptcy, and last month filed to convert proceedings to Chapter 7 liquidation (before one condemns Stoli as a purely evil villain here, keep in mind a lot of the company’s problems stem from its ongoing conflict with the Russian government over, among other things, Stoli’s public condemnation of the invasion of Ukraine). While I have no clue as to Stoli’s financial situation, as a general matter, being in bankruptcy means that the debtor owes more than it has coming in the door. Very rarely do plaintiffs want to spend the money associated with litigating to find out that there’s nothing left to satisfy an eventual judgment. McIlhenny’s goal then, is to get Stoli to stop copying their sauce, and not to try and squeeze some money out of them.
Stay tuned, updates to come as this one heats up.
January 28, 2026
By Laura Trachtman
As an attorney who practices quite a lot of employment law, I frequently deal with the legal concept of respondeat superior. What is it, and why is it important to an employment law practice?
What is Respondeat Superior?
Respondeat superior is a Latin phrase meaning roughly “let the master answer.” (We’ll scoot right by why we, as Americans, continue to use Latin (and French) in our legal system.) Under this legal theory, an employer is vicariously responsible for the tortious actions of its employees, as long as they act within the scope of their employment. In the famous case of Riviello v. Waldren, 47 N.Y.2d 297 (1979), the courts weighed in on whether an employer was responsible for his employee’s actions when that employee, while at work, injured a customer. The Court specifically focused on the meaning of the phrase “within the scope of his employment.”
The Court of Appeals first explained that the respondeat superior doctrine had initially been narrowly defined, which meant that, because the employer could exercise close control over his employees while the employees were engaged in serving their employer, the employer’s liability was limited. Over time, however, social policies helped expand the doctrine.
An Expanding Doctrine
The expansion of respondeat superior is what makes the doctrine important to an employment attorney, as it opens up a brand new set of defendants for an injured party. What fueled this expansion? The increasing frequency of employees injuring third parties is one reason; Another is the generally deeper pockets of the employer relative to the employee who caused the injury. Modern economic devices, such as cost accounting and insurance coverage, make the burden of a lawsuit and subsequent damages easier for the employer to bear, as opposed to the employee or the injured party.
When is the Doctrine Applicable?
Accordingly, the test for the doctrine of respondeat superior was whether the tortious act was done while the employee was executing the employer’s work. It didn’t matter how irregularly or with what disregard of the employer’s instructions.
Of course, because we are discussing the law, the application of this doctrine isn’t quite that simple: It is a fact-based inquiry, and thus usually reserved for the jury. That means that, while the question can be determined on a motion for summary judgment, it needn’t necessarily be so easily resolved.
The courts have set forth guidelines to help determine employer liability: the connection between the time, place and occasion of the act; the history of the relationship between the employer and employee as spelled out in actual practice, like day to day interactions; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the employer could reasonably have anticipated the specific act. A vital inquiry is whether the tortious act as performed by the employee was so removed from their duties as to be considered an abandonment of service to the employer. A negative answer severs the responsibility of the employer. But how is this determined?
This issue is highlighted in another Court of Appeals case, Rivera v. State, 34 N.Y.3d 383 (2019), which examined whether the State is responsible for the assault by corrections officers of an inmate. Corrections officers are indeed authorized to use physical force against inmates in limited circumstances. However, the facts therein – that it was a brutal and prolonged beating involving multiple corrections officers in a flagrant and unjustified use of force – informed the Court’s decision to sever liability. Specifically, the Court held that: “[h]ere, the gratuitous and utterly unauthorized use of force was so egregious as to constitute a significant departure from the normal methods of performance of the duties of a correction officer as a matter of law. This was a malicious attack completely divorced from the employer’s interests.” Id. at 391.
Both of the cases examined above involved physical injury. Yet this is certainly not the only injury for which an employer could be held responsible. A critical inquiry is whether the employer’s interests are involved in the employee’s commission, either negligently or intentionally, of the tort at issue. This issue should be examined at the beginning of one’s representation to ensure that the employer is indeed exposed to liability for the acts of his employee.
January 20, 2026
By Emily Poler
I’ve talked a lot here about the legal implications of AI, whether in copyright infringement lawsuits over its development or problems with how it’s been (mis)used by lawyers. The embarrassment and consequences when an attorney files an AI-drafted brief riddled with hallucinatory errors and false citations? Been there. Copyright infringement cases pending against OpenAI, Meta and other AI companies? Oh yes, we’ve done that. And none of this is ending anytime soon because, no matter how things shake out in the courtroom, one thing is certain: Artificial Intelligence is not going away. If anything, it’s going to become way more pervasive in our business, personal and, yes, legal lives. So with that in mind, let me talk about when, and in what contexts I see AI as a useful tool that can aid legal work — and where I think it’s a bad idea.
Starting with the positives, AI can be great for writing, which doesn’t always come naturally to this human. It can provide a starting point I can then manually edit, which really speeds up getting started on writing tasks that, for whatever reason, I’d just rather avoid. AI is also very useful for repetitive tasks like formatting cumbersome documents like document requests and interrogatories, as well as responses to document requests and interrogatories. (If you’re not a litigator and don’t know what these are, don’t worry. It’s not that exciting.) When it comes to specific AI platforms, in my experience Claude is far better at these routine tasks than Co-Pilot, which could not format things consistently. Hardly surprising, since Co-Pilot is a Microsoft product and despite it now being the second quarter of the 21st century Microsoft still can’t seem to get its most basic product (Word) right, as it still inexplicably changes the formatting of documents without rhyme or reason. But I digress.
How else is AI useful for lawyers? I’ve seen that clients sometimes find AI-generated materials helpful or comforting when they are struggling to comprehend a legal concept. Instead of trying to get me on the phone, they can easily ask ChatGPT relevant questions and get quick answers. Litigation can be quite anxiety-ridden for a client, and if gaining a better understanding of what’s happening puts their minds at ease, fantastic. Of course, we have to keep the big caveat in mind: As everyone should know by now, AI-generated information is NOT always accurate.
Speaking of which, AI use is obviously a real problem when, for example, a lawyer’s time (and billing) is devoted to reviewing bogus legal citations that AI has magically created or when AI produces a case or a statute that says something that seems pertinent, but is provided without the full context and upon further review turns out to be irrelevant. Also, at least in my experience, none of the AI platforms are particularly good at telling when someone is lying or heavily shading the truth. If an adversary is blatantly presenting untrue “facts,” AI platforms — which work by analyzing what words go together — can’t necessarily tell the difference between truth and fiction. It also can’t account for human behavior which, you might have noticed, is sometimes weird and unpredictable.
Time and time again, we see explicit and often embarrassing examples of why AI should not and cannot be trusted by lawyers for research. I’ve written about several cases where lawyers were humiliated and punished by judges for presenting briefs filled with AI-generated nonsense, sometimes digging themselves deeper holes with ridiculous excuses and justifications (here’s an excellent example). And yet, despite this, the use of AI to conduct legal analysis is becoming increasingly prevalent for those who work both inside and outside the legal field. It saves time, it saves money, it makes things easy, and as we know all too well, humans are always eager to overlook errors for the sake of convenience. But I will not get sucked into its wanton and irresponsible use. I might use it for routine and mechanical tasks, but whenever a situation requires critical thinking or multiple logical steps, I rely on hard work and human analysis and forgo the assisting “skills” of generative AI.
One final note: Trachtman & Poler Law is a small firm. I am aware that BigLaw firms have developed their own AI platforms, and the data in these private AI platforms is, well, private. We don’t have that. There may be a time and a place where this is something we explore, but we’re not there yet.
January 7, 2026
By Emily Poler
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!
