March 19, 2026
By Emily Poler
The last few weeks have been crazy over here (and, obviously, everywhere), so this post will be relatively brief, but interesting nonetheless. It’s about a proposed class action lawsuit initiated by New York Times writer Julia Angwin against Superhuman Platform, the parent company of writing-assistant software Grammarly. While I haven’t had a lot of time to delve into the complaint, the basics are that beginning last August, Grammarly launched its “Expert Review” tool that offered users the ability to revise text according to recommendations from well-known authors like Ms. Angwin, Stephen King, and Neil deGrasse Tyson. Did Grammarly ask permission of these scribes to use their names and writing styles? Of course not!
As you might imagine, Grammarly’s tool is entirely AI-based, having digested the publicly available work of the writers so as to then spit out editing suggestions from what it determines are “relevant experts,” based on the subject matter of uploaded user text. For example, you submit an essay on technology (one of Ms. Angwin’s core subjects) and Expert Review offers improvements it says are “inspired by Julia Angwin.” Pretty amazing stuff, especially considering Grammarly didn’t involve Ms. Angwin in the process.
Even worse than the theft of her style and the use of her name, according to Ms. Angwin, is that the AI advice might (ha! “might”) be crappy. “[A] Grammarly user could become displeased with Ms. Angwin if they…received a negative result after taking that advice (such as a bad grade in school or a negative performance evaluation at work), even though Ms. Angwin had absolutely nothing to do with the advice that she purportedly gave,” the complaint says. Having tested Expert Review herself, Ms. Angwin was appalled by the edits peddled under her name. “Its editing suggestions were so bad that they could destroy my reputation,” wrote Ms. Angwin in a Times opinion piece.
Luckily for Ms. Angwin, even though current laws are, shall we say, in flux regarding the use of AI to digest, learn from, and replicate copyrighted material, her suit rests on far more solid and clearly defined right of publicity laws. These laws, which are on the books in more than two dozen states, bar the commercial use of another’s name or likeness. The authors here have a pretty strong case as Grammarly was using their names without permission. Moreover, it certainly is not crazy for the authors to argue that the use of their names implied that they endorsed Grammarly, which is exactly what the right of publicity is supposed to protect.
How will Grammarly respond? Well, it has already taken down the Expert Review tool “for a redesign,” claiming it had “very little usage.” As for defending itself against the suit, a Superhuman statement says the company “believes the legal claims are without merit.” If you ask me that’s rather optimistic, since it would be quite a stretch to deny that their use of these authors’ names implied endorsement. Grammarly could also try to argue that the authors haven’t been harmed by its use of their names, which might have some legs because reputational damages can be hard to establish. However, such arguments aren’t going to get rid of this case any time soon, nor will the mothballing of the review application which, as Ms. Angwin wrote, “doesn’t make up for the eight months that service was in operation, making money from all of our names without ever seeking our consent.”
March 3, 2026
By Emily Poler
After my last post on Michael Bay’s laughable lawsuit against Cadillac’s Formula 1 team, I feel like carrying on the theme of litigation or claims so absurd they can only bring embarrassment to the party pursuing them. And lucky me, our old friend Martin Shkreli is back with new and bizarre maneuvers in his defense against the lawsuit brought by PleasrDAO. Let’s dive into the latest preposterous developments around our favorite felonious “Pharma Bro.”
In that lawsuit, which I previously wrote about in October, PleasrDAO, a “Decentralized Autonomous Organization” of digital artists and NFT collectors, purchased in 2021 the (supposedly) sole existing copy of the Wu-Tang Clan double CD “Once Upon a Time in Shaolin” (the “Album”), which the U.S. Department of Justice seized from Shkreli upon his 2017 securities fraud conviction. When Shkreli originally purchased the Album in 2015, he signed a restrictive agreement preventing him from copying it. Nonetheless, after his release from prison in 2022, Shkreli proudly proclaimed that he had retained digital copies of the Album, and hosted a “listening party” on Xwitter. PleasrDAO soon filed a complaint in New York District Court against Shkreli alleging, among other things, violations of the Defend Trade Secrets Act (“DTSA”) and state trade secret law. In September of last year, the Court denied Shkreli’s motion to dismiss, finding that PleasrDAO had adequately alleged that the Album could qualify as a trade secret as PleasrDAO. I found this to be a very interesting, and frankly rather unique, decision.
Well, the lawsuit continues to be interesting, but not for any sane reason — because, Shkreli. In late 2025 or early 2026, he tried to add the Album’s producers and Wu-Tang members RZA and Cilvaringz to the lawsuit. Here, Shkreli argued that he and PleasrDAO had competing claims over who owns the copyrights in the Album, and since those individuals also owned a portion of the copyright to the Album, their participation was necessary for there to be a complete resolution of the matter.
Judge Pamela Chen, however, was having none of this, noting that even Shkreli should understand that the action against him had nothing to do with copyright infringement.
Undeterred, Shkreli tried to sue RZA and Cilvaringz, naming them as “counter-defendants” in the PleasrDFO lawsuit. Once again, the judge rejected him, since neither RZA nor Cilvaringz were parties to the lawsuit. You see, there’s a very basic rule here: a counterclaim has to be brought against an individual or entity that is already a party to the lawsuit — and in this case, the only other party is PleasrDao. Apparently, Shkreli’s attorneys were unfamiliar with this rather obvious procedural requirement.
Sigh. I get it. Sometimes it’s hard to remember the difference between a cross-claim, counterclaim and third-party claim, but come on, “bro.” Look it up before filing something in federal court.
But why stop there? After Shkreli and his lawyers clowned themselves twice, they persisted. Most recently, Shkreli filed a third-party complaint naming RZA and Cilvaringz as defendants, asserting that they are required to reimburse him for any damages he incurs as a result of PleasrDAO’s claims, as well as for his legal expenses. His basis for this claim? The 2015 agreement pursuant to which Wu-Tang sold Shkreli the Album, which provides that Wu-Tang will indemnify Shkreli “in each and any case or proceeding of any type arising out of, in connection with, or in any way related to the Work, the Buyer’s Permitted Uses of the [Album].”
There are so many problems here.
For starters, it’s entirely unclear how this lawsuit is related to Shkreli’s permitted use of the Album. The crux of the issue in the PleasrDAO suit is that Shkreli made copies of the album that he was contractually prohibited from making, and that he has continued to use and broadcast those copies even after forfeiting his interests. That really doesn’t sound like a “permitted” use, does it?
What’s more, it’s not even clear that RZA and Cilvaringz can be sued in New York. According to what was filed, RZA lives in California and Cilvaringz lives in Morocco. Maybe they generously agreed to be sued in New York, but the latest filing is silent on this point.
Also, it seems likely that the government’s seizure of the Album as part of Shkreli’s 2017 sentence included the seizure of all of his rights related to the Album. So if you ask me, he’s got nothing to go on here. But what do I know? I’m not a “Pharma Bro,” and I suppose anything’s possible in the alternate reality such a creature inhabits.
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.
