June 17, 2025
By Laura Trachtman
The Supreme Court recently denied a petition for certiorari in Nicholson v. W.L. York, Inc. d/b/a Cover Girls, et al, and refused to hear the claims of the petitioner, Chanel Nicholson. In so doing, the Supreme Court has again flouted clear precedent and failed to allow Nicholson access to the courts to remedy a discriminatory action.
In an appeal from the Fifth Circuit, which covers Texas, Louisiana and Mississippi, Nicholson asked the Supreme Court to overrule the Circuit Court’s determination that her claims were time barred. When the Supreme Court voted to refuse to hear her appeal, Justice Jackson, with Justice Sotomayor joining, wrote a pointed dissent.
First, the facts. Nicholson, a Black woman, worked as an exotic dancer in several clubs in the Houston area, starting in 2014. Race discrimination pervaded the clubs where she worked, and on multiple occasions she was refused entry to the clubs to work, with management stating that there were too many Black women already working. This was in contravention of her employment contract, which stated that she could make her own hours, and 42 USC § 1981, which is the federal cause of action for claims of intentional race discrimination in contracting. Clearly, the basis for which she was refused access to work – that there were too many Black women already working – was applied only to women of color, and not to white women, hence the basis for a discrimination lawsuit.
Next, the precedent. The statute of limitations for § 1981 actions is four years, and the claim accrues on the date that the act occurred. For every new discriminatory act, the statute of limitations restarts, but sometimes, actions occur that are not, in and of themselves, discriminatory, but rather reflect the “continued effects” of earlier discriminatory actions. Those actions do not restart the clock. And that’s where the trouble starts.
The Fifth Circuit determined that each time Petitioner Nicholson was refused work at the clubs, it did not constitute a new discriminatory act but was merely a continued effect of earlier discriminatory actions, and did not restart the clock. Mind you, Nicholson was refused work solely due to her race, as white women were allowed into the club to work at times when she was turned away. Accordingly, the Fifth Circuit determined that Nicholson’s claims were time barred, and dismissed her case. When Nicholson applied for a writ of certiorari to the Supreme Court, it was denied. While the Supreme Court isn’t required to grant cert to every Petitioner who requests that the Supreme Court review their case, the Supreme Court could have reviewed this case and corrected the Fifth Circuit’s obviously erroneous decision, but chose not to. That’s where the problem lies.
Why? Because when a new act of discrimination occurs, it restarts the clock. Not only that, but if the act is one in a continuing course of action, then not only does the most recent act start the clock, it can drag the previous acts within the statute of limitations for certain causes of action. This is the exact opposite of what the Fifth Circuit held.
In other words, the Fifth Circuit should have held that the most recent acts of discrimination restarted the clock – take the most recent act and count backwards. What the Fifth Circuit actually did was take the act that was furthest away in time and go forward. This is contrary to the established law of the land, and should be wildly disturbing to anyone who’s paying attention. The Supreme Court should have granted cert and overruled the Fifth Circuit’s decision, but they did not.
The reason I personally am so upset about this is for a couple of reasons. One, for better or for worse, I trust in our legal system to do what’s right for the American people. Our legal system is built on precedent, and both of the instances I discuss above – the Fifth Circuit’s incorrect analysis and the Supreme Court’s failure to correct the same – constitute a wildly alarming detour from precedent, which serves to undermine the entire basis for our legal system. Furthermore, this isn’t even a hard issue to decide – it’s not Delaware Chancery law or anything, it’s fairly basic, which means one of three things: 1) that the Fifth Circuit and the Supreme Court just didn’t care whether they were issuing a correct decision, or 2) they didn’t understand the legal issues, or 3) the worst option, that they know exactly what they’re doing and are doing it on purpose to disenfranchise our vulnerable citizens.
Finally, this is not the first time that the Supreme Court has deviated from settled precedent. Yes, I’m talking about Roe v. Wade. If our Supreme Court fails to respect precedent, in violation of our legal system and their oath to “do equal right to the poor and to the rich”, it’s a slippery slope to chaos and the end of our society as we know it.
June 10, 2025
By Emily Poler
True confession: I was feeling a little stuck about what to write about in this week’s post. At first, I considered the summary judgment motions on fair use in cases against Anthropic and Meta over AI, but I’m kind of over writing about AI at the moment. I also thought about getting into the trademark issues associated with dupes and/or whether the card mahjong players use is copyrightable, but I just wasn’t feeling it. I’ll likely come back to these topics in coming weeks (especially the one about the mahjong card), but none of these were really inspiring me.
I mean, things feel like a lot right now. Even putting aside the stress of a world burning down around us, work has been super busy. Plus, there are a number of changes afoot here at Trachtman & Poler (all good, and more on that to come). Getting some space in which to free my mind from the parade of daily tasks is a key step in my process of thinking about things, reaching conclusions, and then writing them down for this blog. That space has been missing lately.
And then, it happened. I went to a BigLaw event this week, and seeing all those shiny, soon-to-be 3L students working at large firms for the summer got me thinking about the tradeoffs people make for a career in BigLaw. It also made me ponder some of the myths of what it’s like working at a legal behemoth, as well as the misconceptions people have regarding starting your own law firm. So here we go!
For those who don’t know, BigLaw (yes, that’s how people spell it) firms hire people who have just completed their second year of law school for internships. These jobs pay well, and usually come with a lot of wining and dining meant to lure the “lucky” students into signing their lives over to these firms after graduation. This is exactly what I did.
Why? When you’re starting out as an adult (and plenty of other times too), I think some people want stability and predictability, while others are ok with or hungry for open options and unexpected opportunities. Some of this may be innate, but I also think people’s backgrounds and experiences have a lot to do with how they enter the working world. As you might have guessed, I was one of those eager for stability and predictability.
Without getting too deep into my childhood, let’s just say I grew up in a somewhat chaotic family environment. Looking back, I see how that motivated me to choose a well-mapped career path with a well defined beginning, middle and end, where through sheer hard work and grit I could outlast just about everyone else and make it to the top.
Also, money. Somewhere along the line, probably around 10 or 12 years old, it became pretty clear to me that I couldn’t — or shouldn’t — rely on anyone to support me; I definitely didn’t ever want to have to ask someone else for money. So yeah, it’s kind of obvious why I ended up going to a top law school and working in BigLaw, because if you’re any good at it, it’s a straight climb to making a lot of money pretty quickly.
But, things changed. For starters, my young adult life turned out not to be as financially unpredictable as I had imagined. I managed to graduate college and law school with pretty minimal debt, and by my second year as an attorney I was able to buy an apartment in a neighborhood that, at the time, was considered less than desirable. That meant I knew I’d be able to pay my mortgage even if I took a significant pay cut.
So once the miseries of working for BigLaw began to take their toll on me, losing 20 pounds I would rather have kept and sending me into therapy, I started realizing maybe I didn’t have to stick to the painful BigLaw career path. I became less willing to prioritize financial stability over having control of when I got to and left the office, the clients and cases I handled while I was there, who I worked for, and how I interacted with the people I worked with. So eventually, I left and went to a smaller firm. After that, I started my own firm and, recently, joined forces with the wonderful Laura Trachtman.
This background means that I now really love meeting others who also left BigLaw to forge their own paths. What we all have in common is having made a calculus about the need to balance predictability with exerting a degree of control over how and when we work. 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?
Thinking about all this the past few days, I’ve also come to understand how people tend to look at those of us who took the risk, left high paying jobs and started our own businesses, as being somewhat brave. And sure, it definitely takes a measure of courage to do so. But it’s not necessarily harder than working for BigLaw, it’s just different. Each has its own set of sacrifices, but while the travails of working for a large firm are pretty well known (as are the $$ rewards), the tradeoffs, worries and stresses of going it alone are less well documented. This is something I’ve tried to address periodically on this blog, while also sharing the ways I’ve overcome the obstacles and made it work for me. It’s been very gratifying to hear from people that my thoughts and insights into starting and growing one’s own business have been appreciated. And hopefully, it’s helped a few people make that leap for themselves. Because one thing is certain: The sacrifices and hardships of going it alone are, ultimately, more than compensated by the freedoms and satisfactions of choosing your own road to success.
June 3, 2025
By Laura Trachtman
Most clients know that their communications with their attorneys are protected by attorney-client privilege. In New York State, this protection is enshrined in CPLR § 4503. However, as with all things in the law, privilege isn’t that simple.
Why are we talking about this? Because in the discovery phase of litigation, when a party produces documents to the other side, the attorney must also disclose the documents that she is not producing. This is called a privilege log and, in New York State courts, is governed by CPLR § 3122(b), which specifies what the privilege log must include: “(1) the type of document; (2) the general subject matter of the document; (3) the date of the document; and (4) such other information as is sufficient to identify the document for a subpoena duces tecum.”
However, there are exceptions to that rule, such as those set forth in the Commercial Part Rules as enshrined in 22 NYCRR 202.70, Rule 11-b(b), which allows for a categorical approach, as opposed to document-by-document approach, which lists every.single.document in the privilege log.
What is a categorical approach to a privilege log? Is it defined as “any reasoned method of organizing the documents that will facilitate an orderly assessment as to the appropriateness of withholding documents in the specified category.” OK, but what does that mean? The NYC Bar Association has issued this document which helpfully provides both guidance and a model privilege log for those who remain confused. Generally speaking, a categorical approach to a privilege log means sorting documents into broad categories and identifying them by using a date range, the names of individuals who sent or received the communications, and a general description of what the documents are (“communications with outside counsel”) (“communications with in-house counsel”).
Boy howdy does this seem like a reasonable way of organizing documents, and is a big time-saver, to boot. For anyone who’s ever wanted to gouge out their eyeballs while drafting a spreadsheet accounting for each and every document withheld on the basis of privilege, a/k/a a document-by-document privilege, the categorical approach might seem like a god-send.
But if I’ve learned nothing else in writing this blog, I’ve learned that there are rules to every shortcut. And accordingly, here are the rules:
- An attorney can’t unilaterally decide that she wants to use the categorical approach – counsel for all parties must agree upon the approach, although the Commercial Division’s preference is for categorical designation.
- When counsel for all parties do agree upon the categorical approach, each privilege log must be accompanied by a certification pursuant to 22 NYCRR § 130-1.1 specifying:
- the facts which support the privileged or protected status of the information contained within each category;
- The steps taken to identify the documents – whether each document was reviewed or whether documents were “sampled” (a couple of documents were inspected at random); and
- If the documents were sampled, how the sampling was conducted.
Rule 1: parties must agree. This is going to be tough to start, because the plaintiff is going to want to know exactly what documents are going to be withheld and based on what privilege.
- HOWEVER No. 1, if the requesting party refuses to agree to the categorical approach, AND the court refuses to issue a protective order, upon good cause shown, the court can allocate costs for the document-by-document approach to the party who refused to allow the categorical approach. (Rule 11-b(3)).
- HOWEVER No. 2, even with the document-by-document approach, the court allows for the following shortcut for email chains: “(i) an indication that the e-mails represent an uninterrupted dialogue; (ii) the beginning and ending dates and times (as noted on the e-mails) of the dialogue; (iii) the number of e-mails within the dialogue; and (iv) the names of all authors and recipients – together with sufficient identifying information about each person (e.g., name of employer, job title, role in the case) to allow for a considered assessment of privilege issues.”
Rule 2: categorical designation must be certified. The first important note is that 22 NYCRR 130-1.1 is the statute that governs sanctions. In other words, if you make this certification and you’re being untruthful and the court finds out, both you and your client could suffer significant consequences.
Rule 2a: facts which support the category. The certification must state why the documents are privileged – “communications involved attorneys” or something similar.
Rule 2b: Steps taken to identify the documents. How were these documents, out of all of the documents involved in the case, selected as privileged? “Search of attorney’s email inbox for client’s name” seems like it would be a good start.
Rule 2c: If sampled, describe how. Simply state the steps taken to populate the sample. “Every 5th email was reviewed to see whether it was attorney-client privilege.”
As always, while the categorical approach is an excellent shortcut, the attorney must be careful when utilizing it, or else the attorney can expose both herself and her client to sanctions. Similarly, the rules encourage the parties to work together on discovery issues, which is in line with the court’s general requirements, the ethical suggestions re: civility, and general good practice for attorneys. I’m all for raining hellfire down on opposing counsel when they need an attitude check, but it’s just as important to remember that we’re all doing our jobs and sometimes we need to catch a break.
May 27, 2025
By Emily Poler
Following up on my last post in which we, in part, discussed the United States Copyright Office and its developing standards for determining whether works created with artificial intelligence are eligible for copyright, we can now dive deeply into the recent “pre-publication” release of a report detailing that Office’s thinking on the topic of AI and fair use. A final version of the report is supposed to be published in the near future; however, the Trump Administration’s termination of the Director of the US Copyright Office, which, according to some, is linked to the Office’s issuance of this report, makes me wonder if this time frame might change.
Why is this important? Given the Copyright Office’s role as the government body to which someone who wants to register a copyright goes to file an application, as well as advising Congress on matters related to copyright, its reports are likely to influence the judges currently considering the lawsuits against the tech companies that own OpenAI and its ilk.
As a reminder, the fair use doctrine (some background here) allows use of copyrighted material under certain circumstances to be considered non-infringing (i.e., fair). Where a use is fair, the entity repurposing the copyrighted materials does not have to pay a license fee to the original creator. Courts have developed a four-part framework for determining if a new use furthers the ultimate goal of copyright — the promotion of the “Progress of Science and useful Arts,” U.S. Constit., Art. I, Section 8 (and yes, that capitalization is in the original). This involves considering things like the degree to which the new work transforms the original and the extent to which the new work can substitute for the original work.
Overall, the Copyright Office’s report is quite interesting, replete with good background for anyone wanting to understand generative AI, and to absorb the issues related to AI and copyright. Here are some highlights (and my thoughts):
- Different uses of copyrighted materials should be treated differently. (Okay, that’s maybe not so surprising). For example, in the Copyright Office’s analysis, using copyrighted materials for initial training of an AI model is different from using copyrighted materials for retrieval augmented generation, where AI delivers information to users drawn from scraped original works. This makes sense to me because, as with many (most?) things, context matters. Moreover, numerous cases (including the Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith) stress the importance of analyzing the specific use at issue. However, the Copyright Office also noted that “compiling a dataset or training alone is rarely the ultimate purpose. Fair use must also be evaluated in the context of the overall use.” Which leads us to the next point…
- The report describes how “training a generative AI foundation model on a large and diverse dataset will often be transformative” because it converts a massive collection of copyrighted materials “into a statistical model that can generate a wide range of outputs across a diverse array of new situations.” On the flip side, to the extent a model generates outputs that are similar to the original materials, the less likely those outputs are to be transformative. This could represent trouble for AI platforms that allow users to create outputs that replicate the style of a copyrighted work. In those cases (every case?) where an AI platform allows users to generate entirely original works as well as ones that are similar or identical to copyrighted materials, courts will have to figure out what constitutes fair use.
- There is a common argument advanced by AI platforms that using copyrighted materials to train AI models is “inherently transformative because it is not for expressive purposes” since the models reduce movies, novels and other works to digital tokens. The Copyright Office isn’t buying this. It says changing “O Romeo, Romeo! Wherefore art thou Romeo?” into a string of numbers does not render it non-expressive because that digital information can subsequently be used to create expressive content. This makes a lot of sense. Translating Shakespeare into Russian isn’t transformative, so there’s no good reason that converting it into a “language” readable by a machine should be any different.
- The use of entire copyrighted works for training weighs against a finding of fair use; however, the ingestion of whole works could be fair if a platform implements “guardrails” that prevent a user from obtaining substantial portions of the original work. Again, courts are going to need to examine real world uses and draw lines between those that are ok and those that are not.
- When an AI platform produces work based on its training on copyrighted materials, even if that output lacks protectable elements of the original (for example, the exact melody or lyrics of a song), output that is stylistically similar to an original work could compete with that original work — and this weighs against a finding of fair use.
While at first blush there’s nothing particularly new or revelatory in the report, it is nonetheless effective at concisely synthesizing the issues raised in the various AI copyright-related lawsuits in the courts at the moment (and to come in the future). As such, it highlights the many areas where courts are going to have to define what does and does not constitute fair use, and the even trickier questions of where precisely the lines between will need to be drawn. Fun times ahead!
May 20, 2025
By Laura Trachtman
There are times when you’ve brought a motion before a judge, and you strongly believe that the judge wrongly ruled against your client. When this happens, you have a couple of options. You can notice an appeal (which must be done within 30 days of the filing of the Notice of Entry), you can make a motion to reargue, and you can make a motion to renew. Please note that these are conjunctives, not disjunctives, so you can take all of these steps if you can satisfy the requirements.
Why are there so many different options? Great question. Each serves a different purpose.
The appeal is simple – you’re going to ask the appellate court to review the lower court’s decision and see if it was properly decided.
- The pros of appealing is that your claim will be reviewed by a panel of appellate division judges, and I have usually been fairly impressed with their legal acumen.
- The cons are that it’s both expensive and time consuming. I once waited for 18 months to have an appeal decided after it was fully briefed and oral argument was made before the panel.
- Also, if you request oral argument, you’d better bring your A game, because the judges on the appellate division do not play around and the oral arguments are livestreamed, so you can make a fool of yourself in front of everyone tuning in to spectate.
The motion to reargue is based on CPLR § 2221(d), and applies where a judge misapprehended a matter of fact or law. In other words, if you think the judge misunderstood something in their Decision + Order, you can make this argument and see if this second bite at the apple helps them to better understand the point you’re trying to make.
- The pros of making a motion to reargue is that it costs no more than the filing fee for the motion.
- The cons are that I find making a motion to renew to be a bit awkward. You’re literally telling the judge that you think they were wrong, which doesn’t always go over so well – especially if you’re going to continue to appear before the same judge.
- The other sticky wicket on a motion to reargue is that there’s no appeal from the decision on a motion to reargue, so your best bet is to both file an appeal and a motion to reargue as a belt-and-suspenders approach, and withdraw the appeal if you win the motion to reargue.
The motion to renew is based on CPLR § 2221(e), and is based on new information not previously known to the movant at the time the motion was made: either the law has changed or new facts have emerged. In other words, if you learned new information after you submitted your motion, you can make a motion to renew. You must also provide a reasonable justification for why the new information included in the motion to renew was not included in the prior motion to ensure that the new information is actually new.
- The pros of a motion to renew are that it can be very effective, and in my experience, a judge is more likely to grant a motion to renew than one to reargue. Like its statutory sibling, the motion to renew is also cheap: the cost of a motion filing fee.
- The cons are that elements of a motion to renew are much more stringent than a motion to reargue. You must have new information — either a new legal argument or new facts, and you must be specific in both making your argument about the new information and explaining why this information had not previously been submitted. In fact, the court lacks discretion to grant renewal without a justifiable excuse for the failure to present new facts on the prior motion – in other words, the court literally cannot grant renewal if you haven’t satisfied the prerequisites.
- You can appeal the decision on a motion to renew, which gives you a little extra time to pull yourself together if you end up losing and you haven’t submitted an appeal on the underlying motion.
Both the motion to renew and reargue must be clearly labeled by the movant, and that can be a bit tricky composition-wise, as often facts pertain to both a motion to renew and one to reargue. I personally love drafting CPLR § 2221 motions because they are so persnickety, and I find rising to the challenge of clear and careful drafting eminently satisfying.
