June 3, 2026
By Laura Trachtman
One of my favorite scenes from Legally Blonde is when Elle and Paulette go to retrieve Paulette’s bulldog Rufus. If you’ve seen the movie, you know what I mean: Elle confronts Paulette’s ex, Dewey, pelts him with legal jargon that’s totally inapplicable to the situation, and then gets down to business. Elle tells Dewey that as he has kept the residence he and Paulette formerly shared, Paulette is entitled to full canine property ownership. As Dewey stares at Paulette and Elle blankly, Paulette snaps, “I’m taking the dog, dumbass!”
While seeing Paulette and Elle drive off with furbaby Rufus (and Bruiser, of course) warms the cockles of my dog-loving heart, what they did is not actually legal. Setting aside jurisdictional issues, mainly because I’m not barred in Massachusetts where the movie is set, the correct way to recover Baby Rufus is to initiate an action for the recovery of chattel, which just means personal (as opposed to real) property. This is known in common law as replevin.
Replevin, along with most of our legal terminology, comes from the Latin: in this instance the verb plebere, to give surety. Somewhere down the line, the French turned it into replevir, from re- + plevir, which has the same meaning. And that’s enough linguistics for a law blog.
To demonstrate one’s entitlement to replevin, there are a few procedural steps which must be followed. First, the true owner of the chattel must demand its return. That’s when the three-year statute of limitations starts running. As an interesting aside, this is only applicable in situations where a good-faith possessor of the chattel is actually in possession; if a thief has the chattel, the statute of limitations runs from the time of the theft.
Getting back to Legally Blonde: if Dewey wanted to keep Rufus, then Paulette should sue Dewey for replevin. In so doing, she would have to demonstrate that she is the owner of the precious baby Rufus. She could do this by providing a receipt for Rufus’ adoption or purchase. Paulette would also have to demonstrate that Dewey has unlawfully withheld Rufus from Paulette.
I know what you’re thinking: once she files the complaint, is Paulette required to wait for ages while the court determines that Rufus legally should be home with her? Nope! Paulette could immediately make a motion for prejudgment seizure. In order to obtain an Order of Seizure, Paulette would have to move pursuant to CPLR § 7101 for said Order, supply an affidavit clearly setting forth the facts upon which Paulette bases her entitlement to Rufus, as well clearly identify Rufus (in case there’s another bulldog at the trailer, for example). Paulette, as the plaintiff, would also have to demonstrate that she has met all of the detailed requirements set forth in CPLR §§ 7102(c) and (d)(1). That includes posting a bond in the amount of Rufus’ value, and explaining why it is probable that Paulette will succeed on the merits, in other words, prevail. Obviously, Paulette must also put Dewey on notice that she is making this motion. (There is a way to make the motion without notice, but I’ve already digressed enough.) If Paulette shoulders this burden, the court is well within its discretion to grant an Order of Seizure.
Dewey can oppose Paulette’s motion for prejudgment seizure by interposing defenses. In so doing, should Dewey assert a superior claim to Rufus, he could defeat the provisional remedy that Paulette seeks. Dewey may also seek to reclaim Rufus via CPLR § 7103. But, Dewey doesn’t seem to be a successful man based on his appearance and poor personal hygiene, so I doubt he’d make many motions.
So long as Paulette can legally demonstrate that Rufus is indeed her personal property, she’ll be able to keep him forever and ever and throw him a birthday party each year for the rest of his life. What, like it’s hard?
May 26, 2026
By Emily Poler
In an era where a lot of people have a problem taking responsibility — or, as is more weirdly said nowadays, “accountability” — for their actions and mistakes, institutions and large corporations are no different. Witness Samsung’s shrug of a response to a complaint filed against it earlier this month by pop star Dua Lipa, which essentially boils down to “someone told us what we were doing was OK.”
It’s a pretty simple suit. The Seoul-based electronics manufacturer and its US subsidiary has been selling televisions in boxes adorned with this image of the English entertainer:
According to Ms. Lipa’s complaint, filed in California this month, the photo was taken backstage at the 2024 Austin City Limits Festival and shared in this post on her official Instagram account. The complaint further says that Dua Lipa has a registered copyright in the image, and thus asserts copyright and trademark infringement claims against Samsung, along with violation of Dua Lipa’s right of publicity.
The copyright claims are based on Samsung’s use of a copyrighted image without permission. The trademark claims are based on assertions that, by using her image to market televisions, Samsung is implying that she is endorsing its products. The right of publicity claims are based on Samsung’s use of her extremely valuable image in a commercial setting without permission.
Does this really matter? Well, according to Lipa’s team, shortly after the box appeared her fans began calling it the “Dua Lipa TV Box” on their socials, and the lawsuit cites specific Instagram comments like one user saying they would “get that TV just because Dua is on it,” and “if you need anything selling just put a picture of Dua Lipa on it.”
So yeah, it matters. Naturally, as with any modern celebrity, Ms. Lipa has legitimate sponsorship agreements with brands like Puma, Versace, and Yves Saint Laurent. She does not work with Samsung, and it seems obvious that someone in Dua Lipa’s organization would be aware of whether she gave anyone permission to use her photo on their product packaging.
The complaint goes on to say that Dua Lipa’s lawyers approached Samsung about trying to resolve this matter and Samsung refused, ignoring “repeated demands” to “cease and desist from infringing on her rights.” In other words, shrug, because hey, sue me.
Samsung did eventually issue a statement, saying the photo was “originally provided by a content partner for our free streaming service Samsung TV Plus. The image was used only after receiving explicit assurance from the content partner that permission had been secured, including for the retail boxes. Given this assurance, we deny any allegations of intentional misuse.” So far Samsung has not named that third-party “content partner.”
In my view this is not a great defense. Notably, Samsung doesn’t say “oh, hey, we have this written agreement that lets us use this image.” Nor does it say, “once we found out there was an issue we immediately took steps to correct this problem.” Rather, this sounds an awful lot like a teenager saying, “gosh, my friend’s parents told me I could!” when caught doing something they weren’t supposed to do. (Also, I have a teenager at home, so maybe I’m just seeing everything in terms of how a modern kid might see the world.)
Samsung’s statement goes on: “We have actively sought and remain open to a constructive resolution with Ms. Lipa’s team.” Here’s a suggestion for a constructive resolution: take the darn picture off the boxes when asked instead of (allegedly) ignoring her requests to do so and then claiming you have been assured you have the rights to use the image. Seems simple, no?
All that said, Samsung hasn’t formally answered the complaint yet, so it will be interesting to see what it says when they do. Unless it can explain exactly how it has rights to use the photo at issue, I don’t see this getting a whole lot better for the company, especially because at least some of Dua Lipa’s claims allow her to shift her attorneys’ fees onto Samsung if she prevails, on top of the $15 million her suit is seeking.
But hey, I guess a multinational giant like Samsung can just shrug that off, too.
May 12, 2026
By Emily Poler
A couple of weeks ago I started to write this post about the latest Serial podcast, which is titled The Idiot and narrated by New York Times opinion columnist M. Gessen. My aim was to use the story of Gessen’s cousin Allen, who was convicted of ordering a hit on his ex-wife, as a jumping-off point for talking about getting clients to face hard truths. I couldn’t quite finish what I was writing though; something just didn’t feel right.
As I sat on it, I listened to a discussion of prediction markets — platforms where participants can buy and sell shares based on their beliefs of the outcomes of future events — and whether these markets will be significantly regulated by the federal government (my prediction: no). While mulling that over, I realized what I wanted to write about was actually truth, justice, and the “American Way.” Or at least the values and rules that have traditionally underpinned those ideals.
As anyone who reads this blog with any regularity knows, I’m a litigator. That means I have regular interactions with the courts. It also means I spend a lot of time thinking about what’s fair and, while I don’t use this word in daily parlance, what’s just.
I’ve been pondering this a lot more lately because, simply put, it feels like the wheels are coming off the bus. Increasingly, attorneys and their clients are behaving badly, flouting court rules, pursuing arguments that contradict established precedent, and prosecuting opponents with accusations so bizarre and trivial as to seem insane. (If a client tries to involve me in anything like this, I tell them they need to find another lawyer.) Thankfully, in many cases judges and juries continue to do great work rejecting and even condemning such actions.
Or maybe it just seems like things are going in the wrong direction because of a certain person with a very loud megaphone who is pushing, for example, the second prosecution of former FBI Director James Comey for posting a photo on Instagram of the numbers “86 47” spelled out in seashells that he saw on a beach; the Trump administration claims that constitutes a threat against the president. Is it a coincidence that Comey led the initial investigation into Trump’s alleged collusion with Russia during the 2016 election?
The problem here is that as established rules are attacked and perverted, people start to believe that not only can they get away with anything, but that they are right to do so. Everybody else is doing it, so why not me? Look at the case of the Fort Bragg soldier who was involved in the planning of the U.S. military operation to capture Venezuelan president Nicolás Maduro, and allegedly used his (obviously) classified information to bet on its timing in a prediction market and profit to the tune of more than $400,000.
And, circling back to The Idiot podcast, M. Gessen’s cousin Allen continues to vigorously deny hiring an assassin through an intermediary (actually an undercover FBI agent) to murder his ex-wife despite overwhelming evidence, including recordings of the hiring discussions, that that’s exactly what he did. Why do these people think they can get away with these illegal, immoral and disgusting actions? Because they believe they’re right to do so. That’s what we call delusion, a condition that seems to be on the rise and that no pharmaceutical company can create a drug to combat.
Getting back to what I’ve seen happening in courtrooms over the past few years, I’m not decrying lawyers advocating zealously on behalf of their clients, which we’re all supposed to do. Nor am I condemning attorneys for sometimes missing a deadline or making an honest oversight. What I’m talking about are people playing really fast and loose with the law or the facts.
This has always bothered me. I have a pretty strong sense of what’s right and what’s wrong, and I find it upsetting when people aren’t treated fairly and don’t behave toward others in a way that is equitable. And, while I certainly understand and acknowledge that there are often grey areas, I think (or I’d like to think) that most lawyers are also motivated, at least in part, by the idea of making sure things are fair. Now, though, when we’re barraged with pretty much daily examples of people and attorneys flouting the rules in really grotesque ways, I’m more troubled than ever.
Do these little transgressions matter? YES. In some ways, the legal system is a giant trust exercise, kind of like crossing the street in midtown. It only works because cars don’t go when there is a red light. In the case of the court system, it means you follow the rules: When you lose a case, you pay the amount the court says you owe, or when a court tells you to do something, you don’t do something else (or nothing at all). If rules and rulings are ignored, the system will slowly start to break down, and eventually stop working entirely. And while the consequences of that would be significant for an individual attorney like me, that’s nothing compared to what it will do to our society and every person in it.
That’s today’s rant. I’m curious to know if other attorneys have similar feelings (I can’t believe it’s just me). Let me know what you think!
May 5, 2026
By Laura Trachtman
Normally, I write about legal issues that I’m dealing with in my own practice, because it’s convenient and interesting for me. Today, however, I’ve got a bee in my bonnet about the prima facie tort doctrine.
To start, what is a prima facie tort? I’m so glad you asked! This doctrine provides a remedy for intentional harm caused by otherwise lawful conduct when no other traditional tort applies. In other words, the prima facie tort steps in when a defendant’s malicious intent transforms lawful acts into actionable wrongs and the defendant’s conduct is inexcusable or unjustifiable.
To clarify that weighty definition, let’s explore the history of prima facie tort and the limitations on the cause of action.
History of the Prima Facie Tort
The U.S. Supreme Court case of Aikens v. Wisconsin, 195 U.S. 194, 204, 25 S.Ct. 3, 5, 49 L.Ed. 154 (1904), which was authored by Justice Oliver Wendell Holmes, is arguably the most famous case addressing prima facie tort (if only because of its author). Holmes stated in pertinent part: “Prima facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law … requires a justification if the defendant is to escape.”
The New York Court of Appeals in Curiano v. Suozzi, 63 N.Y.2d 113, 117, 469 N.E.2d 1324, 1327 (1984) provided additional illumination:
Some years ago, this court recognized the general principle that harm intentionally inflicted is prima facie actionable unless justified (see Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 70 N.E.2d 401; American Guild of Musical Artists v. Petrillo, 286 N.Y. 226, 36 N.E.2d 123; Opera on Tour v. Weber, 285 N.Y. 348, 34 N.E.2d 349, cert. den. 314 U.S. 615, 62 S.Ct. 96, 86 L.Ed. 495). That principle has developed into the specific cause of action of prima facie tort consisting of four elements: (1) intentional infliction of harm, (2) causing special damages, (3) without excuse or justification, (4) by an act or series of acts that would otherwise be lawful (Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 332, 464 N.Y.S.2d 712, 451 N.E.2d 459; ATI, Inc. v. Ruder & Finn, 42 N.Y.2d 454, 458, 398 N.Y.S.2d 864, 368 N.E.2d 1230). While prima facie tort may be pleaded in the alternative with a traditional tort, once a traditional tort is established, the cause of action for prima facie tort disappears (Board of Educ. v. Farmingdale Classroom Teachers Assn., 38 N.Y.2d 397, 406, 380 N.Y.S.2d 635, 343 N.E.2d 278, supra).
This decision is very helpful, as it provides three important takeaways: (a) a clear explanation of the prima facie cause of action; (b) a description of the requisite elements to demonstrate entitlement to relief; and (c) an incredibly important limitation on the pleading of the cause of action.
Limitations on the Cause of Action
In case you missed it above, there is an important limitation on prima facie tort when it is pled in the alternative: a claim grounded in prima facie tort cannot be maintained if the primary cause of action is established. This makes sense, because a cause of action for prima facie tort can only be maintained in the absence of another tort. Of course, if that other cause of action isn’t established, then it’s a good thing you pled prima facie tort so the defendant doesn’t get away with bad conduct.
Another limitation on the claim is that the motivation for the actions which form the foundation for the prima facie tort must be malice, and nothing else. By way of example, “a claim for prima facie tort cannot be sustained where the plaintiff is alleged to be motivated by profit as well as malicious intent” Squire Records, Inc. v. Vanguard Rec. Socy., Inc., 25 AD2d 190, 191 (1st Dept 1966). That also makes sense, because the intent to harm another itself is the entire justification for the cause of action. If the defendant can provide another reason to explain away the action – greed, jealousy, or what have you – then it’s not a prima facie tort.
In this cause of action, you must also plead special damages. What are special damages, you ask? Great question! Luckily, we get an assist from the Second Department in Shahid v. Slochowsky & Slochowsky, LLP, 208 A.D.3d 1381 (2022), which held in pertinent part: “Special damages ‘must be alleged with sufficient particularity to identify actual losses and be related causally to the alleged tortious acts’ [internal citations omitted]. Here, the plaintiff failed to demonstrate that any losses he allegedly suffered were causally related to an act or series of acts on the part of the defendants.” In other words, a plaintiff must be able to demonstrate that she actually suffered damages (lost money, for example) and that the reason for that loss is/are the action(s) of the defendant.
So, What’s the Point?
The purpose of prima facie tort is to provide an avenue for redress in situations where someone is motivated purely and solely by malice; the harm that they do to another should not go unpunished. The problem is that humans are complicated beings and rarely have only one motivation for doing something. That makes successful prima facie tort claims exceedingly rare. Only about 4% of such claims involve intentional torts; and prima facie tort is just a tiny subset of that. Still, when I need a little reassurance that the legal system does occasionally ensure that evil people will be punished for hurting others, the very existence of this cause of action gives me comfort.
April 29, 2026
By Emily Poler
About a month ago, the Supreme Court in Cox Communications, Inc. v. Sony Music Entertainment reversed a $1 billion verdict against Cox, an Internet service provider. That verdict stemmed from Cox’s failure to prevent subscribers from infringing Sony’s copyrighted works by sharing pirated copies over Cox’s network. The Supreme Court held that a service provider can only be liable for what is called “contributory infringement” by a third-party (in this case, a user) if the service either induced the infringement or sold a service specifically tailored for infringement. In its decision, the Court held Cox was not liable for contributory infringement because it failed to do anything to affirmatively prevent it. Put another way, Cox’s inaction was not enough to incur liability.
One AI company quickly jumped on this decision to argue that it shouldn’t be liable for what users do with its own platform. In Disney Enterprises, Inc. et al v. MiniMax et al, Disney and other large studios are suing China-based MiniMax and its Singaporean owner Nanonoble Pte. Ltd., which offers an app called Hailuo AI. This app allows users to create short videos in response to prompts and is marketed with the tagline, “A Hollywood studio in your pocket.” In theory, this is cool, except that what Hailuo also does is let users make little videos starring Star Wars and Marvel characters, among other well-known properties.
Since Hailuo is AI, naturally the Plaintiffs claim it was created using unauthorized copies of the studios’ works. And, of course, Plaintiffs say any user output that publicly reproduces Darth Vader, Spiderman et al. are unauthorized copies or derivative works of the studios’ copyrighted properties.
MiniMax makes a bunch of arguments as to why the complaint should be dismissed, some of which have enough teeth to maybe lead to dismissal or partial dismissal. For example, MiniMax argues that much of its conduct took place outside of the United States and, therefore, cannot serve as the basis for a claim under U.S. copyright law. In fact, the Plaintiffs spent months after their initial filing unsuccessfully attempting to serve the Defendants in Singapore and China, and the federal judge in the case had threatened to toss the lawsuit in December as a result of these issues.
Other of the Defendants’ arguments are more, shall we say, creative. MiniMax asserts that while the studios complain that Hailuo’s outputs depict characters from their movies and TV shows, the studios can’t point to specific copyright registrations covering those characters. That argument is a bit much because it seems impossible to obtain an image of, say, the Mandalorian or Iron Man, without reproducing a portion of the copyrighted work they appear in. It seems equally hard to claim that a user can make a Shrek short without intruding on the copyright owners’ rights to make derivative works based on their copyrighted materials.
In the wake of the Supreme Court’s Cox decision, MiniMax also argues it shouldn’t be held liable merely because it didn’t prevent Hailuo from outputting infringing content, despite having that ability. (The company did put guardrails in place to prevent Hailuo from creating pornographic or violent content.) According to MiniMax, the failure to include these guardrails is, at most, inaction and not an affirmative act, and within the framework of Cox there’s no contributory liability for mere inaction. However, the line between inaction and action is pretty blurry here. Creating and marketing a platform that is appealing because it lets users make fan films of their favorite characters seems pretty active to me.
On top of that, MiniMax is claiming it’s not responsible for user infringement because it didn’t actively encourage that infringement. Really? Hailuo’s tagline of “A Hollywood studio in your pocket” sounds pretty encouraging to me. MiniMax says the slogan describes “the quality and creative capability” of Hailuo,” but I think it could be interpreted as urging users to create works based on those of Hollywood studios. My view is buttressed by the claim, according to the complaint, that MiniMax allegedly used Spiderman in Hailuo’s marketing materials. This type of question — a fact question — is going to make it hard for the judge to dismiss the complaint.
And that means that despite miniMax’s assertions, there should be plenty of action ahead in this case.
