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.
October 14, 2025
By Emily Poler
I previously wrote about the US Copyright Office’s policy on works created with AI and the decision in Thaler v. Perlmutter, which denied copyright registration for a work listing an AI platform as its sole author. In that post, I predicted we’ll soon see litigation over which elements of work created with AI can be copyrighted.
While I’m pretty sure those suits will start to pop up, right now I want to talk about another case where the Copyright Office decided that a work created with AI was ineligible for copyright protection. This case, Allen v. Perlmutter, also raises some of the issues I noted in another recent post where I suggested it might be time to reconsider some of the policies underlying US copyright law in light of how much has changed since the US Constitution and the first copyright law were created in the 18th Century.
The story: Jason Allen created an image titled Théâtre D’opéra Spatial using Midjourney AI and entered it in the 2022 Colorado State Fair’s annual fine art competition, where it won a prize. The US Copyright Office, however, was less impressed and denied his application for copyright protection, finding that it was created by Midjourney. Allen then filed suit challenging that decision. (Before diving in, two notes. One, H/T to Paul LiCalsi for pointing this case out to me. Two, in case you’re wondering, Shira Perlmutter, the defendant in both Thaler and Allen was, until recently, the Director of the US Copyright Office).
Some background. To be eligible for a copyright, a work must be “original” and have an “author.” Of course, the law has long recognized that humans create copyrightable materials using machines all the time. In 1863’s Burrow-Giles Lithographic Co. v. Sarony, the Supreme Court found Napoleon Sarony’s photograph of Oscar Wilde was eligible for copyright protection, rejecting Plaintiff’s argument that photography is a mechanical process devoid of human authorship. The Court ruled that Sarony’s numerous creative choices in composing the photo meant he was the author of the work and, therefore, should be treated as such under the Copyright Act. Since then, courts, including the Supreme Court, have repeatedly held that only a minimal degree of creativity is required for something to be copyrighted.
In this present case, Allen created his artwork by inputting many, many text prompts (over 600!!) into Midjourney to get the result he wanted out of the AI. Also, once he finished creating that initial image, he tweaked and upscaled it using additional software like Adobe Photoshop. The Copyright Office, nonetheless, denied registration for this work, finding that it lacked the “traditional elements of authorship” because Allen “did not paint, sketch, color, or otherwise fix…” any portion of the image.
However, as Allen’s attorney points out in his lawsuit, there is no legal definition of the “traditional elements of authorship” and, what’s more, creativity, not the actual labor of producing a work, is the hallmark of authorship under the Copyright Act.
What to make of this case? Well, for starters, I’m curious to see the Copyright Office’s response regarding its narrow and archaic “traditional elements of authorship.” I imagine it’s going to be hard, if not impossible, to claim those can’t include use of a machine because, well, most everything that is obviously eligible for copyright protection in the 21st Century (music, movies, photography, etc.) uses hardware and software. Also, I wonder the extent to which some of the issues in this case reflect a basic uncertainty about how to characterize and appraise the skills (conceiving and refining detailed prompts) Allen employed to get Midjourney to create the work, compared to what we traditionally think of as visual art skills (painting and drawing). And, elaborating on that last point, how do we define creativity in light of all of the crude AI slop out there? (One example: check out the chair in this clip when the reporter retakes her seat.) Do we need to make some big decisions about what qualifies as helping “to promote the Progress of Science and useful Arts” (the purpose of the Copyright Act) by taking into account that some created work is good, borne of inspiration, purpose and ever-evolving skills, while a lot of stuff that gets made is just plain lazy, bad and crudely functional? Tough calls lie ahead.
