Discrimination
September 10, 2025
By Laura Trachtman
A former partner at Katten Muchin Rosenman, LLP is suing his prior firm and two of its partners, Noah Heller and Michael Verde, for $67 million dollars, alleging, among other things, age discrimination in firing. This case is just the kind of borderline absurd scandalous legal drama that gives me life, and in three specific areas: discrimination, representation, and arbitration.
First, age discrimination is, IMO, one of the hardest discrimination-based allegations to demonstrate. Courts have held that, unlike other types of discrimination, one of the best ways to demonstrate age-based discrimination is by recounting comments rooted in age-related bigotry. Now, if you’ve ever handled a race-or gender-based discrimination case, you’ll know that most people aren’t stupid enough to make statements about a person’s gender or race. “Well, we’re going to give this position to a white person because we, as white people, feel more comfortable among other white people” or “You, being female, simply aren’t as emotionally stable as a man” are comments that are almost never heard these days, although the sentiments behind them certainly continue to thrive. However, this is not the case in age-based discrimination, as alleged in the 129-page Addendum to the Complaint. “Heller and Verde told me in an in-person meeting to tell me to resign from the firm, the firm and its malpractice insurer concluded that it presented too great a malpractice risk to the firm to allow lawyers close to retirement to continue to handle client relationships,” says Stewart B. Herman, Esq., the plaintiff, who is representing himself. The Addendum also alleged that Katten’s CEO, Heller, previously bragged to Herman that he, the CEO, secured that position by leveraging his youth against those other, older candidates, who are likely to retire more quickly and thus be less invested in the Firm.
This moves us quickly to our next interesting point: Herman is representing himself. This also almost never happens amongst BigLaw attorneys — or attorneys, full stop. Plenty of plaintiffs represent themselves pro se, but they tend to be, in my experience, cuckoo bananas. In fairness, plenty of lawyers are also cuckoo bananas, but that’s another post for another day. It does remind me of a quote from The Addams Family movie, spoken by Gomez Addams, brilliantly portrayed by the late actor Raul Julia: “They say that a man who represents himself has a fool for a client. Well, with God as my witness, I am that fool!” (I’m not calling Herman a fool. I’m just repeating what Gomez said.)
Most recently, in response to a motion filed by Katten to compel arbitration, the Magistrate Judge addressed the parties’ arbitration agreement. While the Court granted the defendant’s motion to stay the matter pending arbitration, in a fascinating twist, the Court admitted that it could not force the parties to go to arbitration: “Although the Court has the power, and obligation, to stay the instant action, it cannot affirmatively order the parties to arbitrate.” This is because the arbitration agreement between Katten and Herman says the arbitration must occur in Chicago, but the Federal Arbitration Act does not allow a court to order parties to arbitration outside of the district in which the court sits. In this instance, that’s the Southern District of New York, which obviously does not include Chicago.
So the parties have several options: agree to arbitrate in New York (which Herman has already declined to agree to), agree to arbitrate in Chicago (ditto), or sit and wait until someone changes their mind or Congress changes the law. I anticipate that Herman will have some soul-searching to do, trapped between the devil and the deep blue sea as he is.
August 27, 2025
By Laura Trachtman
It’s almost football season! Taylor Swift and Travis Kelce got engaged! We have drama associated with claims against the NFL for discrimination! It’s an exciting time to be a football fan.
In a 100-page First Amended Complaint, “on February 1, 2022, Coach Brian Flores—who is now joined by Coach Steve Wilks and Coach Ray Horton—filed this class action lawsuit against the National Football League (“NFL” or the “League”) and its member teams. The suit alleged, and continues to allege, systemic racial discrimination in the hiring, retention and termination of NFL coaches and executives.”
If you didn’t know (and I did not, so I looked it up), Brian Flores was the Head Coach for the Miami Dolphins, Steve Wilks was the Head Coach for the Arizona Cardinals, and Ray Horton was the Defensive Backs Coach for the Washington Redskins. The case’s venue is in the Southern District of New York, which is where the NFL maintains its headquarters, and the causes of action are an interesting mix of federal and state: Section 1981 of the Civil Rights Act, New York State Human Rights Law, New York City Human Rights Law, New Jersey Law Against Discrimination, and Florida Private Whistleblower Statute.
(Side Note: I’m always interested in why a plaintiff would ground a discrimination lawsuit in the federal statutes, where the requirements to prove discrimination are so much more stringent than under the New York’s statutes, and there are filing requirements with the EEOC that must be satisfied, but that’s another blog post for another day.)
Moving past my skeptical feelings about how OF COURSE the NFL discriminates against people of color – I didn’t even realize that there were Black head coaches aside from Mike Tomlin, of the Pittsburgh Steelers – some lawyer in Southern California managed to get himself into biiiiiiiiiiiiiiiiiiiig trouble with a District Court Judge in this case. False start, ten yard penalty!
Michael Caspino appeared as attorney for Wilks in January 2025, and then withdrew as Wilks’ counsel in June 2025. Unfortunately, there appear to have been some inconsistencies associated with Mr. Caspino’s Notice of Appearance, which resulted in Judge Valerie E. Caproni issuing the following on June 17, 2025:
ORDER TO SHOW CAUSE: IT IS HEREBY ORDERED that Mr. Caspino is ordered to show cause by July 7, 2025, why the Court should not refer him to the disciplinary panel of this Court to consider whether he should be sanctioned for his conduct. As part of that submission, Mr. Caspino is required to provide a certificate of good standing from each state in which he is a member of the bar and explain, under oath: 1) how he was able to file a Notice of Appearance in the Southern District of New York on ECF despite not being a member of the bar for the Southern District of New York; 2) why his signature block in filings at docket entries 135 and 136 states “Pro Hac Vice Pending” despite the fact that Mr. Caspino never filed a motion to be admitted Pro Hac Vice in the Southern District of New York; 3) why he represented in the notice of appearance that he is “admitted or otherwise authorized to practice in this court” when it appears that it not accurate; 4) why as of June 17, 2025, his website (https://www.pricecaspino.com/michael-caspino) continues to represent falsely that he is a member of the Arizona bar; and 5) unless he has provided a certificate of good standing from the bars of California, Colorado, and Nevada, why, as of June 17, 2025, his website represents he is a member of the bars of those states. If Mr. Caspino fails to provide at least one certificate of good standing from the bar of at least one state, his submission must also address why a criminal referral for the unauthorized practice of law is not appropriate.
TL; DR: Judge Caproni is BIG MAD at Mr. Caspino for his misstatements of fact as to his credentials.
If you thought that the Judge would let it go after Mr. Caspino filed a letter on July 7, 2025, correcting misstatements of fact in his Notice of Appearance (that he had applied for admission in SDNY pro hac vice, which he had not) and on his website that he was admitted to the bars of certain states (AZ, CA, NV and CO, two of which he was no longer a member of), you were wrong. The Judge doubled down on July 9, 2025, with this Order:
ORDER: IT IS HEREBY ORDERED that Mr. Caspino is ordered to explain, under oath, how he was able to file a Notice of Appearance in SDNY on ECF despite not being a member of the SDNY bar and to provide a Certificate of Good Standing from the California Bar by no later than July 31, 2025. IT IS FURTHER ORDERED that, also not later than July 31, 2025, Mr. Caspino must provide a more complete explanation of how he came to represent falsely that he was “admitted or otherwise authorized to practice in this court;” when it was decided that he would not represent Mr. Wilks in this action; why he thought it appropriate to state that admission pro hac vice was pending when no motion had been made; when his membership in the bars of Nevada and Colorado lapsed; when he was reinstated to the Arizona Bar and proof from the Arizona Bar that he has, in fact, been reinstated; and why he should not be referred to the disciplinary panel of this Court in light of his admitted misrepresentations to the Court.
Mr. Caspino filed another letter on July 31, 2025, providing a Certificate of Good Standing from the CA Bar and a letter from the AZ Bar, but the Judge still didn’t let it go: on August 5, 2025, she entered the following Order.
ORDER: IT IS HEREBY ORDERED that Mr. Caspino is ordered to appear in person for a hearing on August 25, 2025 at 10:30 A.M. in Courtroom 20C of the Daniel Patrick Moynihan Courthouse, 500 Pearl Street, New York, New York, 10007 and be prepared to explain under oath: (i) how he obtained ECF filing privileges in this Court without being admitted to practice in this Court; (ii) how he came to represent falsely in the Notice of Appearance that he was admitted or otherwise authorized to practice in this court, Dkt. 135; (iii) when it was decided that he would not represent Mr. Wilks in this action; (iv) why he thought it appropriate to represent that admission pro hac vice was pending when no motion had been made, Dkt. 135, 136; (v) whether he has previously filed notices of appearance in any other court falsely representing that he was admitted or otherwise authorized to practice in this court, even though he was not and, if so, in what cases and in what jurisdictions; and (vi) why he failed to respond fully to either of the orders issued by this Court, Dkts. 138, 140.
Another letter from Mr. Caspino on August 21, 2025, and on August 22, 2025, the Court filed the following Order:
By no later than August 22, 2025 at 12:00 P.M. Pacific Standard Time, Mr. Caspino must provide the Court with the name of the case, case number, the presiding judge, and a copy of the Order scheduling the August 25, 2025 court appearance in Orange County Superior Court that he referenced in his declaration. Mr. Caspino’s declaration makes multiple references stating that he has “voluntarily complied with the Court’s Order” and “voluntarily provided answers,” which suggests that he does not consider that he is subject to the jurisdiction of the Southern District of New York. He is clearly mistaken. The grievance committee of the Southern District of New York may discipline “[a]ny attorney not a member of the bar of this court [who] has appeared at the bar of this court without permission to do so,” Local Civ. R. 1.5(b)(6), and the grievance committee may discipline “any attorney” who, “in connection with activities in this court,” engages in “conduct violative of the New York State Rules of Professional Conduct,” Local Civ. R. 1.5(b)(5).
At this point, this lawsuit has totally deteriorated into a war between this poor schlub from California and the District Court Judge, who is having absolutely none of his nonsense. There hasn’t been a filing related to the merits of this case for literally months; it’s just Caspino and Judge Caproni going at it hammer and tongs.
The latest filings memorialize that Judge Caproni Ordered Caspino to appear on August 25, and he claimed that he had a conflict, so she Ordered him to appear on August 26, and he claimed to have yet another conflict, and she refused to allow him to appear other than in person. He did not appear before her in person on August 26, 2025 at 2:30pm, and so she issued the following Order:
ORDER TO SHOW CAUSE: IT IS HEREBY ORDERED that Mr. Caspino is ordered to show cause why he should not be held in contempt and sanctioned accordingly for his failure to appear at the show cause hearing scheduled for August 26, 2025. By no later than noon EST, August 28, 2025, Mr. Caspino must provide three dates during the last two weeks of September 2025 on which he is available to appear in-person in the Southern District of New York for the show cause hearing. IT IS FURTHER ORDERED that if Mr. Caspino wishes to submit a memorandum of law or other materials in connection with any of the orders to show cause that are pending, including the current order to show cause why he should not be held in contempt and sanctioned accordingly, all such materials must be filed no later than September 12, 2025. SO ORDERED.
And that, my friends, is why you never, ever, ever, ever, mess with a federal judge. Touchdown!
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.
May 6, 2025
By Laura Trachtman
The Trump administration has claimed to have taken steps to “reverse the role of DEI in hiring.” Specifically, President Trump published an Executive Order related to DEI, and his administration has issued a fact sheet concerning the same. Is it my understanding that the Trump administration feels that DEI hiring is discriminatory towards a certain demographic of the population, that is, cisgendered, heterosexual, Protestant, white men (“CHPWM”), based on the theory that DEI promotes otherwise unqualified individuals to take positions that CHPWM would otherwise have occupied.
There are two main problems with the Trump administration’s position. The first is the position that DEI hires are unqualified for their positions and are only hired because of their membership in a protected class, and the second is the position that new policies were needed to correct the first problem. We’ll tackle these one at a time.
First, to assume that only CHPWM are qualified for roles, and everyone else is unqualified, is an intolerant and ignorant assumption. And yet, this is the assumption that the Trump administration relies upon to promulgate these policies. Personally, I find the Trump administration’s position to be incredibly offensive, idiotic, prejudiced, and just plain wrong. I worry that this will have long-standing effects on the American population, which I will not get into here due to time restraints. But, with a Republican majority in Congress, I fear that we are stuck with these policies – for now.
Second, legally speaking, DEI-related discrimination doesn’t exist, just like reverse racism doesn’t exist. In other words, there’s not one type of discrimination protection for white people and another for people of color: it’s all covered under the same law.
Regardless, the Trump administration provided guidance for employees who feel that they have been discriminated against due to DEI policies; some examples can be found here and here. The long and the short of these publications is that an employer (and others, but for our purposes, we’ll stick with employers) cannot discriminate against an employee based on a protected characteristic, which includes race. While the Equal Employment Opportunity Commission correctly summarized that in its publications, this is nothing new. Since the passage of Title VII in 1964, it has been illegal to discriminate based on race – any race. Many individuals operate under the mistaken belief that it is only illegal to discriminate against someone if they are not white. This is wrong.
Title VII states: “It shall be an unlawful employment practice for an employer – (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
What does this mean? It means that you can’t discriminate against someone based on their race, no matter what that race is.
Why do people think that you can only discriminate based on race if someone is a person of color? This question requires a much longer answer than I have time or space for here, but suffice it to say, people of color are generally treated less favorably than white people in the United States and thus find themselves needing the protection of the law more frequently.
Why the attack on DEI if discrimination based on any race is prohibited? My own theory is that white people are starting to feel that their position as the “preeminent” race in America is threatened. The unique privilege that white Americans have enjoyed for centuries is starting to erode as American employers have finally begun to realize that encouraging diversity, equity, and inclusion in hiring makes a stronger workplace and is better for business. The upshot is that Americans of all races are starting to reach some level of equality; the downshot is that white Americans are feeling insecure and need reassurance that they’re still #1. That’s where President Trump steps in.
By declaring DEI policies discriminatory, President Trump sought to assuage the worries of white Americans regarding their crumbling status in American society. The problem is that it has always been illegal to discriminate based on protected characteristics under Title VII. And while President Trump has claimed that this a big victory for [gestures vaguely], the fact remains that he has made absolutely no changes to the law, and he’s shamming everyone who believes that President Trump has provided any additional protections to white Americans whatsoever.
Special thank you to the creators and writers of Mean Girls for the phrase “Gretchen, stop trying to make fetch happen.”
