September 15, 2026
By Emily Poler
Labor Day has come and gone, commercials for Starbucks Pumpkin Spice Latté (blech) are flooding the streaming platforms, and all those fresh-faced (for now) first-year associate attorneys are marching off to their new lives. Which puts me in mind of my early days in the legal arena, and specifically, the first trial I ever participated in. Well really, it was an arbitration hearing in a conference room, not a courtroom, but close enough to the real thing for young me. I was a super junior lawyer, a year or so out of law school, and it was just me and one of my firm’s partners representing our side. A lot of what went down was well above my pay grade, but I could work a photocopier and put papers into folders, so that was pretty much my role. Nonetheless, there were a bunch of things that day that have stuck with me.
Our client’s only witness was a woman. As the hearing went on, every time my colleague was concerned about what she might say or how well she was prepared to testify on a particular topic, he would send me and her to the ladies room. Why? Because we were literally the only two people using it so there was absolutely zero risk of anyone overhearing our potentially privileged conversations. Cone of silence! I suppose nowadays some might cry sexism (“they made you act like girls at a nightclub going to fix your makeup together!”), but it made sense at the time and worked perfectly.
More to the point of this post, however, I was amazed by the way my colleague just absolutely badgered the other side’s lead witness. At one moment the witness even swiveled his chair, turning his back for a temporary respite from the brutal cross-examination. (The arbitrator in the room exercised absolutely no control over the proceedings; he definitely dozed more than once during the hearing.) The other side must have had counsel, but I remember absolutely nothing about him or her and have no recollection of any effort to try to stop our side’s super aggressive questioning.
At the time, I was shocked at my colleague’s performance (and it was most assuredly a performance). I also remember thinking that, particularly as a young woman, there was absolutely no way in a million years I would ever be able to treat a witness like that.
Such lawyerly steamrolling comes to mind as a result of some recent dealings I’ve had with opposing counsel. In one case, the attorney was insistent that we have discussions on the phone, with the clients joining. I agreed to it — once. On that first call it immediately became clear that what opposing counsel really wanted was to go around me and speak directly to my client. That call ended VERY quickly. Since then, all calls have been without clients and I’ve been very careful to send him notes in follow-up emails. My reward? He has made it clear he thinks I’m out of my mind for refusing to have our clients talk to him, and for daring to memorialize our discussions in writing. Fine, he can be as aggressive as he likes, such behavior has no effect on me anymore. I’m doing what I know is right for my clients and myself.
Flipping the situation, in another case the opposing firm has, for better or worse, put the proceedings in the hands of a very, VERY junior lawyer without much of a clue. Now, I could be an absolute jerk to her because she would have no idea of how to respond. An easy win and power move for me, right? But obviously I’m not going to beat her down because that’s not my game. I know I can get what I need for my client without torturing opposing counsel, nor do I need to fuel my ego by performing like a gladiator — a need that seems to drive too many in my profession.
All these thoughts boil down to the simple tenet that just because your opposing counsel is doing something in a particular way, you don’t have to do it that way. Nor should a client expect — or want — their attorney to be overly antagonistic when it does nothing to advance the cause (even if it can make for entertaining theater).
September 1, 2026
By Laura Trachtman
I was listening to some Disney songs over the weekend, you know, like a normal 45 year old litigator does, and I caught “Poor, Unfortunate Souls” from the Little Mermaid. Every other time I’ve listened to this song, I’ve just enjoyed Ursula’s Lawful Evil tendencies, but this time, something caught my attention, and I wondered: “Is this a real contract?”
A contract needs six elements to be valid (an offer, acceptance, awareness, consideration, capacity, and legality), so let’s review seriatim. There’s an offer: Ursula’s terms are simple: “Now, here’s the deal: I will make you a potion that will turn you into a human for three days. Got that? Three days. Now listen, this is important: before the sun sets on the third day, you’ve got to get dear ol’ princey to fall in love with you, that is, he’s got to kiss you; not just any kiss, the kiss of True Love. If he does kiss you before the sun sets on the third day, you’ll remain human permanently! But, if he doesn’t, you turn back into a mermaid and… you belong to me!”
There’s acceptance; we’ve all seen the part where Ariel hides her face and signs the contract.
There’s awareness, which means mutual assent: Both parties understand the agreement and enter into it voluntarily, meaning there is no fraud, coercion, duress, or undue influence. I think this point deserves a little more analysis, in fairness to Ursula. There’s no fraud here, as Ursula clearly sets forth her conditions. There’s no coercion, as Ariel is in love with Prince Eric and desperately wants to become a human to win his heart so Ursula clearly isn’t making Ariel do anything she doesn’t want to do. And there’s no undue influence, as no one appears to like or trust Ursula, except for her eels, Flotsam and Jetsam. And while I have a disagreement with an expert on The Little Mermaid on whether Ariel signed under duress, I personally don’t think that this situation constitutes duress, as there’s no threat of physical harm, imprisonment, or financial ruin.
There’s consideration: both parties exchange something of value, as Ursula uses magic to transform Ariel into a human, and Ariel gives Ursula her voice.
Here we run into our first snag: we may not have capacity, depending upon the age of consent in the Kingdom under the Sea. Elsewhere in the movie, King Triton remonstrates with his daughter for her conduct and calls her out as being 16 years old. If the age of consent in that jurisdiction is 16, she’s able to legally enter into contracts, but if it’s 18 or older, then she’s unable to do so without the consent of her legal guardian, King Triton.
The final element is legality. Here again, there’s a snag: again, depending upon the jurisdiction, you can’t give yourself to another person to own legally. Unfortunately, there are two indications that selling oneself into slavery is legal in the Kingdom under the Sea: the plethora of Poor, Unfortunate Souls in the garden in Ursula’s cave, and the fact that King Triton allowed himself to become a slave to Ursula to save Ariel.
I think we can all recognize that Ursula engaged in all manner of improper conduct after the contract was signed transforming herself into an Ariel doppelganger and using Ariel’s voice to bewitch Prince Eric is clearly a violation of the covenant of good faith and fair dealing. However, at the point where Ariel signs the contract, assuming that capacity and legality don’t act as bars to the contract, we’re all good.
And that, Dear Reader, is why you should never enter into a contract with a Sea Witch. Up next: Was the Beast falsely imprisoning Belle? (kidding.)
August 25, 2026
By Laura Trachtman
At first blush, an action for an accounting and an action demanding inspection of a business entity’s books and records might seem like the same thing. After all, both involve basically reviewing information pertinent to the entity, right? Actually, the two causes of action are grounded in entirely different aspects of law. Let’s start off in alphabetical order:
A for Accounting!
So first: What is an accounting? It’s a report, formal or otherwise, which details all transactions, assets, income, expenses and distributions related to an estate, a trust, or a business. In other words, it’s a mechanism to ensure transparency and accountability when a person manages money or assets belonging to another. Usually this is demanded, informally at first, when partners/members/etc. think that an individual with access to money/resources is engaging in self-dealing or fiscal malfeasance.
Not everyone can demand an accounting. “Under New York law, an accounting is an equitable remedy (Barry v. Clermont York Assoc. LLC, 144 A.D.3d 607, 608, 42 N.Y.S.3d 123 [1st Dept. 2016]), “premised upon the existence of a fiduciary relationship” (Castellotti v. Free, 138 A.D.3d 198, 210, 27 N.Y.S.3d 507 [1st Dept. 2016] ).” Est. of Calderwood v. ACE Grp. Int’l LLC, 157 AD3d 190, 199 (1st Dept 2017). So, in other words, the person who demands the accounting must have a fiduciary relationship with the person of whom the accounting is demanded. However, once you’ve demanded an accounting, you should be able to get a fairly clear understanding of the finances of an entity, and whether there’s been some funny business going on. This isn’t restricted only to the banking records, but also credit card transactions.
Finally, wrongdoing must be established for a demand for an accounting to be granted but only in certain jurisdictions. For example, the First Department does not require wrongdoing to be established to grant an accounting, only that a fiduciary relationship be established. However, in an action for accounting, as in all equitable actions, one must demonstrate that there is no adequate relief available in law.
B for Books and Records!
What is an action for books and records? It’s a common law-cum-statutory right of inspection available to shareholders/partners of a business entity. The statutory part is codified in Business Corporations Law § 624, but the common-law right, which existed first in time and which was supplemented by the statute, is broader. Matter of Crane Co. v Anaconda Co., 39 NY2d 14, 19-20 (1976); Matter of Steinway, 159 NY 250, 263-265 (1899), quoted by Retirement Plan for Gen. Empls. of the City of N. Miami Beach v McGraw-Hill Cos., Inc., 120 AD3d 1052 (1st Dept 2014). (Sidenote: I’m unsure why the State Legislature would feel the need to pass legislation which was narrower than a well-established common law right, but this is why I do not participate in politics.) As set forth in Retirement Plan for Gen. Empls. of the City of N. Miami Beach v McGraw-Hill Cos., Inc., 120 AD3d 1052, supra, a qualified person can demand more than simply financial information: they can request minutes of the Board, records of shareholders and their contact information, and additional information related to the oversight and management of the Board, as well as the Board’s independence (Board members therein were alleged to be self-interested and thus conflicted).
Unlike in an accounting, a demand for books and records does not require wrongdoing to be first established; however, should a shareholder make such a demand for inspection, the shareholder may be required to make some demonstration. The First Department in Pomerance v. McGrath, 143 AD3d 443, 444 (1st Dept 2016) shed light on the limits of this action: “While inspection rights permit shareholders to examine records that are relevant and necessary for a valid purpose, they do not grant shareholders a right to be involved in day to day management. Whether a shareholder asserts statutory or common-law inspection rights, the shareholder may be required to demonstrate good faith and a valid purpose, and inspection may be limited to the scope of records relevant and necessary for such purpose [internal citations omitted].”
C for Conclusion!
Why are we even talking about these two actions? It’s important for anyone involved in a business entity to know what their rights are. When I first spoke with my brilliant partner Emily about an action for books and records last year, I’d never even heard of it, and wondered aloud how it was different from an accounting. And now, Dear Reader, we all know.
August 18, 2026
By Emily Poler
Several weeks ago I was writing about a hiking drag queen influencer. Today, it’s the Mormon church. How did I get here? I have no idea, but wherever you go in the world of trademark infringement, there you are. In fact, the drag queen and the Mormon cases even have something in common as they both involve a large entity suing a much smaller one for infringement.
In the case of the latter (pun intended), the Church of Jesus Christ of Latter-Day Saints (the “LDS Church”) recently brought a case against Dr. John Dehlin, his podcast and website that have operated under the name “Mormon Stories” since 2005, and his Open Stories Foundation, the nonprofit that funds his work. According to the website’s homepage, “Mormon Stories” is a “community where your doubts and questions are valued and understood.” That community includes criticism of the LDS Church, along with fervent support for LGBTQ+ Mormons.
The Church of Jesus Christ of Latter-Day Saints is, of course, the world’s largest Mormon denomination, and its lawyers claim (among other things) that the name “Mormon Stories” and a logo used by the podcast infringe on the church’s trademarks, including its trademark in the word “Mormon.” The filing asserts that this has and will continue to cause people to believe that the podcast and website are affiliated with the church and/or endorsed by it, or cause consumers to be confused. On the confusion point, the complaint presents a number of comments from social media where people listened to the podcast believing it was affiliated with the church, but then realized that the podcast was, in fact, critical of the LDS and not in line with official doctrine.
The Defendants counter by accusing the Church of “attempting to use intellectual property law to restrict lawful commentary about Mormonism” and have moved to dismiss the trademark infringement claim on grounds that it is barred by the First Amendment. Here, they point to Rogers v. Grimaldi, which held that in the context of the name of creative work, trademark concerns have to yield to the First Amendment unless the Defendant’s use of a mark is completely irrelevant to the underlying work and explicitly misleads consumers about the source or content of the work. In this case, the word “Mormon” is required to describe what the podcast and website are about. Defendants also note that they are not misleading consumers, as they “include written disclaimers on their websites, YouTube channel, and other podcast distribution platforms.”
At the heart of the Defendants’ defense, however, is their focus on the fact that “Mormon” does more than refer to the LDS Church. As the ACLU puts it in the amicus brief it submitted in support of the Defendants, the “word ‘Mormon’ is not a source identifier. It is a term that describes an entire ethnoreligious culture, tradition, and people, many of whom are not members of the Church of Jesus Christ of Latter-Day Saints.” In other words, all LDS are Mormons, but not all Mormons are LDS, and in its brief the ACLU describes myriad religious communities that use the name “Mormon.” In fact, the Defendants are seeking to cancel the church’s trademark in the word “Mormon.” Oh, snap.
And thus, the LDS Church’s lawsuit seems like it could have opened up a can of worms they’d rather have remained closed. Moreover, some of those other Mormon denominations have had their own well-documented problems with the LDS (and, for that matter, the law, see Warren Jeffs). Litigation here is likely to include an exploration of those various groups, their history, and how they use the word that the LDS Church claims it owns. That could make it difficult for the LDS to continue to claim trademark rights to that word and end up with people talking about things that the LDS Church would probably rather not have discussed. They could end up the big losers here.
Also, talking about the legal basics of trademark infringement, why has the Church waited so long? They’ve allowed the Mormon Stories podcast and website to operate for more than 20 years, and as we know, the more lax you are in defending your trademark, the harder it is to protect. (This is why Patagonia quickly brought its lawsuit against Pattie Gonia rather than let her continue to use her versions of the mark.) In fact, Defendants claim the Church has “publicly abandoned” its trademark. For a massive organization with an army of attorneys, that seems pretty irresponsible, and it may be difficult to explain away to a judge.
August 11, 2026
By Laura Trachtman
When I was in high school, I worked on the school plays. And why not? We techies were a little gang of misfits and weirdos: some of us goths, some of us queer, some of us just odd. It was a safe space, without anyone imposing their ideas on how we should behave. There wasn’t any room for that – we were in the theatre (italics and British spelling indicative of how dramatically “theater” should be pronounced). And it was okay to be yourself, no matter how out there you were.
So you can imagine my dismay when I read that a certain musician, Kevin Lynch, has been slowly but surely challenging DEI efforts in and amongst Broadway theaters in New York’s federal courts. (For those just tuning in, DEI stands for diversity, equity, and inclusion). I have some thoughts about this, which I’ll discuss below, in no particular order.
What’s the Deal?
Kevin Lynch is suing based on Playwright Horizon’s so-called discriminatory ticket-selling practices for the onstage performance of the show Practice in the first action, which settled. Lynch is also suing based on so-called discriminatory hiring practices by Maestra Music, Inc., Arts Ignite Inc. d/b/a Musicians United for Social Equity (MUSE), and Wicked LLC in the second action, which remains ongoing.
The complaint in the first action, Lynch v. Playwrights Horizons, Inc., alleged that on November 6, 2025, Playwrights Horizons, an esteemed off-Broadway theater in New York City, hosted a “BIPOC night”, where it sold tickets to the show Practice to persons of color at a heavily discounted price. Lynch, a Caucasian man, paid full price for his tickets – a difference of $102 in total.
The complaint in the second action, American Alliance for Equal Rights et al v. Maestra Music, Inc., summarizes Maestra directory’s ban on musicians who are male, and the MUSE directory’s ban on white musicians. Subsequently, the American Alliance for Equal Rights, alongside Lynch, detail how Wicked created and marketed a THREE WEEK position with a “modest paid weekly stipend” only to members of either Maestra or MUSE: In other words, it was only for a non-white male.
Why Here?
Why pick Broadway? In both actions, I think it was the perfect storm: Means, motive, and opportunity all came together.
For the first action, Lynch had an opportunity and the means to capitalize on it: The theater advertised the availability of a discount for BIPOC consumers. That enabled Lynch to paint himself – and everyone else similarly situated – as a victim. And, he had a motive: < sarcasm > We all know it’s terribly difficult to be a white man in today’s day and age, so obviously he needed to teach that awful racist theater a lesson! < / sarcasm >
Lynch was clever about it, or rather, his attorneys were: They requested that the Court recognize the matter as one with sufficient numerosity to warrant a class action. So the recovery would be exponentially greater than the $102 that would have been his damages for the pair of theater tickets.
For the second action, my answer is the same: The theater created a THREE WEEK job so that a person of color could have limited access to Broadway, which seems like a mitzvah in my opinion. And Lynch seized the opportunity to make the entire situation about himself.
Why Now?
Why choose to sue these Broadway companies right now? Of course, we already know the answer: It’s the politically popular thing to do. With the Trump Administration’s evisceration of the EEOC and generally negative attitude towards anyone who isn’t a cisgendered heterosexual white Christian male, it’s easy enough to find backers to bankroll anti-DEI lawsuits.
While this article talks about the changes in New York and federal law, I’ve already discussed that it has been illegal to discriminate against someone based on their race for decades, no matter their race. (Read this article and this one, too.). In other words, Kevin Lynch could have brought these lawsuits during the Obama Administration, and they would have been just as viable. However, they wouldn’t have been politically popular, because unlike President Obama, President Trump is a racist. Let’s not forget that he called the white supremacists who led the January 6, 2021 insurrection “very fine people.” (And no, before you ask, I’ll never, ever get over the fact that he said that – among other things he has said and done.)
My Two Cents
Look, as a white person myself, I get it. Is it fun to be excluded? No. But this isn’t kindergarten, it’s real life. And anyone who seriously sits down and complains that it is hard to be a white male in today’s day and age is either delulu or selling something. And here, Kevin Lynch is selling the story of the tragedy of white men in American to the American Alliance for Equal Rights – an institution which only seems interested in safeguarding the rights of white Americans.
There are several big issues in play here: The first is that this conduct is, whether we like it or not, illegal. Employers cannot discriminate in hiring based upon race, even for a three-week gig. Excluding certain candidates based on race will disincentivize employers from espousing DEI programs and hiring practices. Accordingly, employers need to get smarter about how they hire people if they want to take diversity into account.
The second big issue I see unfolding involves institutions that worry about the white race no longer being the dominant race in America. They will seize these opportunities to make a big stink about reverse racism, or whatever they want to call it.
That leads me to our final big issue. Instead of becoming defensive, we need to prioritize education in this county. Whitewashing the racism in which the U.S. was baptized (Three Fifths Compromise, anyone?) doesn’t do us any favors. Is it uncomfortable to learn that our Founding Fathers were slave-owners? Yes. Does it create cognitive dissonance to think that someone who wanted freedom for certain people didn’t also want freedom for all people? Also yes.
People need to learn that saying something like “black lives matter” doesn’t mean white lives don’t matter. Not everything needs to be personalized or internalized. Life sucks for everyone. But sometimes, life sucks a little more for certain people, and it’s okay to give them a boost from time to time.
