A Few Tips When Filing (and Opposing) a Preliminary Injunction Motion to Protect Trade Secrets

The Defend Trade Secrets Act of 2016 (the “DTSA”) is a federal statutory vehicle that companies can use to try to protect their most valuable assets (along with their employees, hopefully) — their trade secrets. Since the DTSA is only slightly more than a year old, there have been relatively few federal court decisions addressing the scope and breadth of the statute. One such case decided this summer in the Northern District of Illinois, Cortz, Inc. v. Doheny Enterprises, Inc., 2017 WL 2958071 (N.D. Ill. 2017), sheds light on the type of information afforded protection under the DTSA. The decision also offers insight as to how a plaintiff can improve its chances of securing a preliminary injunction at a misappropriation hearing under the DTSA as well as under state law and how a company defendant can attempt to defeat that motion.

In Cortz, plaintiff Cortz, Inc., a seller of swimming pool and spa products, initiated a suit against a former employee, Tim Murphy, and his new employer, Doheny Enterprise Inc., and sought a preliminary injunction prohibiting Murphy from continuing to work at Doheny. Among Cortz’s allegations were that Murphy possessed information about the prices that Cortz paid its vendors.

Cortz’s preliminary injunction motion was denied. The case provides us with at least three key takeaways vis-à-vis trade secret preliminary injunction motions.

First: Identify the Alleged Trade Secret with Particularity and Not Just a Body of Information in Which a Secret May Lie.             

Cortz alleged in its complaint that “financial information” had been misappropriated. Although the DTSA includes in its definition of trade secret “financial information” and “financial data,” the Illinois District Court held that a mere allegation of misappropriated “financial information” was insufficient under the DTSA. Instead, the Court stated, a plaintiff must allege “‘concrete secrets.’” Cortiz, Inc., quoting Composite Marin Propellers, Inc. v. Van Der Woude, 962 F.2d 1263, 1266 (7th Cir. 1993) (per curiam).

During the hearing, Cortz introduced evidence that Murphy had access to pricing as to its 20,000 (!) different products with respect to its approximately 400 vendors and that vendor pricing is relevant for about two to three years. Cortz also introduced evidence that this price list was unique to Cortz even though its competitors purchased similar or identical products from the same vendors since specific retailers often negotiate their own prices with suppliers. Because Cortz had clarified that this was the specific information it was alleging to be a trade secret, the Court stated that it was prepared, for argument’s sake, to assume that Cortz had satisfied the particularity requirement under the DTSA.

The Court reached that conclusion despite stating that the facts that Cortz (i) had required vendors to sign an agreement containing a confidentiality clause and (ii) had entered into non-disclosure agreements with Doheny and Murphy while discussing a potential sale to Doheny (which obviously never went through) was insufficient to prove that it had adequately protected its trade secrets. Specifically, the Court stated, Cortz had failed to show, among other things, “the amount of time, effort, or money that it expended in developing its vendor pricing nor whether it would be difficult to duplicate its effort in doing so.”

As summarized below, Cortz’s failure to present admissible and credible evidence that the defendants had misappropriated its trade secrets was fatal to its preliminary injunction motion.

Second: Since the Rules of Evidence Apply at the Preliminary Injunction Stage, It Is Critical that Evidence of Misappropriation Falls within Applicable Rules.

At the risk of stating the obvious, the rules of evidence apply in preliminary injunction hearings. Thus, plaintiff’s counsel must ensure that the evidence it presents at the hearing is not only persuasive but admissible. During the hearing in Cortz, for example, the Court determined that certain third-party testimony was inadmissible hearsay because it was offered for the truth of the matter asserted and did not fall within a hearsay exception.

Of course, it is not enough for evidence to be admissible. It must also be credible and relevant. In Cortz, the Court found that there was no credible evidence that Murphy physically took any documents from his former employer, much less trade secret information, and that any vendor pricing information he remembered from his prior employment would be stale and irrelevant. Thus, the Court held that Cortz had failed to present admissible, credible, and relevant evidence to support its misappropriation claims.

At the risk of also stating the obvious, plaintiff’s counsel in a trade secrets misappropriation case, as in all cases, must:

  •  vet witnesses by assessing their credibility;
  •  ensure that evidence can be introduced for an admissible purpose; and
  •  determine whether the evidence at hand would further the plaintiff’s cause in court or is likely to be deemed irrelevant to the specific claims at hand.

Third: There Must Be Admissible, Credible Evidence of Actual, Not Merely Hypothetical, Misappropriation.

The Cortz Court pointed out that “it is well-established…that an ‘employer’s fear that its former employee will use the trade secrets in his new position is insufficient to justify application of the inevitable disclosure doctrine.’” Cortz, Inc., quoting Triumph Packaging Grp., 834 F. Supp. 2d 796, 809 (N.D. Ill. 2011). Among other evidentiary deficiencies, Cortz was not able to offer credible evidence that Murphy occupied the same or a similar function at Doheny as he had at Cortz. Further, Cortz’s contention that Murphy would inevitably disclose the supposed trade secrets was rejected because it was unable to demonstrate that he had in fact done so. The Court held that a preliminary injunction would not be granted in reliance on the much maligned so-called inevitable disclosure doctrine. (This doctrine is likely to be the subject of a future article.)

In conclusion, it is important for companies to consult counsel concerning steps that should be taken to try to ensure the protection of information that they consider to be trade secrets long before litigation is commenced. To be most effective, this advice must include an analysis of the particular jurisdiction’s requirements for treatment of information as legally protectable trade secrets in addition to requirements under the DTSA. Similarly, companies defending against misappropriation of trade secret claims under the DTSA should view Cortz as a good starting point for formulating their defenses against such claims at the all important preliminary injunction phase where these cases are often resolved.

Richard B. Friedman is the managing attorney of Richard Friedman PLLC, a six lawyer law firm which specializes in employment-related agreements, management side employment litigation, and commercial litigation.   Rich and his Of Counsel colleagues handle the following kinds of matters among others: Management side employment litigation involving, among other things, non-compete, trade secret, and fiduciary duty issues; Commercial litigation cases, particularly in the Commercial Division on whose Advisory Committee Rich serves as one of fifteen or so judicially appointment private practitioners with the then judges of that court; Compensation-related FINRA arbitrations for well compensated finance personnel against their former employers; Business divorces among partners, members of limited liability companies, and shareholders of closely held corporations; and Counseling, drafting, and negotiating on behalf of senior and mid-level executives and companies in connection with  employment, severance, and consulting agreements.


Rich has served as a legal commentator on CNN, FOX, and several other major networks on employment and litigation-related issues.  He is a member of the NYCLA Board of Directors and the Task Force NYCLA in The 21st Century. Rich will be moderating a CLE program which offers 2 credits (including 1 ethics credit)  at NYCLA on November 1  entitled Recent Developments In Restrictive Covenant and Trade Secrets Litigation.”  A networking reception will take place from 6:00 p.m. to 6:30 p.m. with the program taking place between 6:30 p.m. and 8:30 p.m.

Special education in Asian American communities

In New York City schools, approximately 200,000 are eligible for special education. Unfortunately, students with disabilities are not receiving the services necessary to meet their needs. The Department of Education frequently fails to provide timely evaluations to children and place them in the proper classroom setting. They also deny or fail to provide services such as occupational therapy, physical therapy, and counseling, and overlook the specific and particular needs of children in special education in setting priorities for their education. As a result, parents of children who are eligible for special education are left on their own with the daunting task of advocating for their children’s education in an unfamiliar, convoluted, and opaque system.

There are more than 12,000 Asian students receiving special education services in NYC schools, and yet Asian American youth with disabilities are often underrepresented in discussions about special education because they confront the “model minority” myth that makes it more difficult for them to get the recognition and help they need, and as a result, their problems are more often ignored. There is also the challenge of conflicting sentiment by some Asian families against providing special education to their children with disabilities, assuming that once they choose special education for their children, they become labeled unfavorably in the community. Even those families whose children receive services face hurdles as it is not uncommon for them to be limited English proficient and their difficulty in communicating with the school adds an additional hardship in their ability to effectively advocate for their child’s needs. This combination of language and cultural barriers can make access to these services harder to obtain and suggest that the needs of the community are being systematically overlooked by advocates.

As an education attorney at Legal Services NYC, I provide direct legal services to parents of children with disabilities to help them obtain the special education services they need to succeed in school. I am also the co-chair of the Education Committee at NYCLA, and in the course of our work on education issues, we as members of the committee have continually sought to ask ourselves what kind of education related issues are of interest to other attorneys and advocates.

Last year, I began conducting outreach with a community based organization in Flushing, and quickly realized that there was an unmet need for education advocacy in the Chinese community. My colleague, Nelson Mar, an education attorney in the Bronx, and a member of NYCLA, had noticed a similar trend in his advocacy of low-income Asian families. His client, L.R., was a seven-year-old boy with a disability attending a school in the Bronx. His mother was concerned that her son was not speaking much either at school or at home. Teachers at L.R.’s school would tell his mother that it was likely L.R. just didn’t care for talking and that it was not a big deal for boys to be shy; however, what they failed to notice was that he was not making any academic progress, or that his reticence to talk resulted from his being bullied by other classmates. With Nelson’s help, L.R. successfully filed suit against the Department of Education for its denial to provide him with appropriate educational services, and the DOE was required to pay for a private school for L.R. that had a program to address his speech impairment. According to his mother, “he has made huge progress” in his ability to communicate, and learn, since his placement at the private school.

Successes like L.R., and our work with community advocates in Flushing, have led Nelson and me to create a pro bono initiative which partners Asian American affinity groups in law firms and volunteers from the Asian American Bar Association to represent affected parents at special education hearings and/or provide advice and counsel. With legal services organizations chronically underfunded, pro bono attorneys can play an outsized role in securing justice for families of children with special needs.
As Nelson noted, “In the area of special education, results are very different with lawyers’ help and with the help of advocates. Good special education programs can bring a bright future to children with disabilities.” The hope is that this project will help families like L.R. and ensure that Asian American students can obtain the special education services to which they are entitled under the law.

If you know a community based organization that works within the Asian American community, and would benefit from a training on special education, please email nmar@lsnyc.org or aleipziger@lsnyc.org, or you have a contact that you believe might need some special education advocacy in the Asian American community, please contact the Legal Services NYC hotline at (917) 661-4500, Monday-Friday 10:00 am- 4:00 pm.

Amy Leipziger is a Co-Chair of NYCLA’s Education Law Committee.  Amy is a Senior Staff Attorney at Queens Legal Services with the Education Rights and Disability Advocacy Projects, and can be reached at aleipziger@qls.ls-nyc.org.  

Data Privacy and Security: An Introduction for In-House and Outside Counsel

By Richard B. Friedman, managing attorney of Richard Friedman PLLC

As is widely recognized, the attorney-client privilege is one of the most important fundamental principles in the legal profession. Every attorney has an obligation to protect his or her clients’ information and to keep attorney-client communications confidential. Of course, this principle applies to in-house counsel as well as outside counsel. Accordingly, it is crucial for both corporate legal departments and law firms to adopt and implement safeguards in order to protect client information. Although all lawyers presumably know that they have a duty to protect privileged client communications and information, many do not know how to do so. This article will briefly introduce the complex related topics of data privacy and security and provide some helpful initial steps that in-house and outside counsel should take in developing a plan to safeguard client information.

In this digital era, massive amounts of data are stored and transmitted electronically across a sea of systems and devices. In almost every kind of matter involving an organization, in-house and outside counsel have access to clients’ and employees’ personal information. It is no longer sufficient for in-house and outside counsel to rely solely on a company’s or a law firm’s IT department to handle cyber security issues. Indeed, many large companies, particularly in the financial services sector, are now conducting audits of their law firms’ data security protocols. A comprehensive data security plan needs to be developed in every organization and law firm by one or more lawyers in conjunction with the IT Department or an IT consultant and other stakeholders, if any, as described below.

  1. Statutes and Regulations
  • The very first step that in-house and outside counsel should generally take on behalf of their client organization with regard to data privacy is to determine the governing state statutes and regulations regarding data privacy and security protection. Some states have data privacy laws that require companies to develop written policies and procedures to provide administrative, physical, and technological safeguards for sensitive client information. By way of example only, here are a few statutes and regulations that counsel charged with participating in the development of cyber security policies and practices should be mindful of:
  • Statutes that Protect Social Security Numbers: New York, New Jersey, Connecticut, and Michigan have statutes that require written policies to limit access to employees’ Social Security numbers. In Michigan and Connecticut, companies need to maintain and publish a specific corporate policy in order to require Social Security numbers from customers.
  • Comprehensive Data Security Program Requirements: An increasing number of states, such as California, Connecticut, Florida, Illinois, Indiana, Massachusetts, Maryland, Oregon, and Texas, require companies to take affirmative actions to protect personal information that belongs to the residents of those states, including driver’s license numbers, bank account numbers, Social Security numbers, and medical information.
  • Payment Card Industry Data Security Standards: Many corporations receive payments from clients and therefore have access to clients’ credit card information. These corporations need to make sure that they comply with the Payment Card Industry Data Security Standards.
  • Breach Notification Requirements: All but three states require companies to provide notice when there has been a breach of “personal information” accessible to the organization.
  1. Identify Personal Client Information
  • State statutes and regulations should be just the starting point in seeking to ensure data privacy protection. In-house and outside counsel should consider, for instance, the types of personal client information to which the organization in question has access; whether the organization maintains such personal information indefinitely; whether the organization sponsors or provides services to health care plans; and whether the organization has a comprehensive plan to respond to data privacy breaches.
  1. Establish Internal Group to Coordinate Data Privacy Issues
  • Virtually every legal department should consider establishing an internal group to coordinate data privacy issues. This group should generally include personnel from the IT Department, the Accounting Department, the Human Resources Department, and the Legal Department—the areas where client personal information is often accessed the most. The group should be empowered to establish detailed steps to protect client data. For example, the group should consider:
  • Identifying all hardware, software, and devices such as laptops and cellphones that could store client information;
  • Classifying all digitally stored information by levels of sensitivity;
  • Determining which departments and which employees are most likely to have access to sensitive client information and how the information flows through the organization;
  • Identifying vendors and other third parties who maintain confidential client information; and
  • Reviewing existing agreements which require the organization to safeguard client information.
  1. Protocol for Data Breach Response
  • Counsel should also develop a protocol for responding to data breaches, including, among other things, who will lead the response teams, and which templates to use for various types of data security-related communications.
  1. Training
  • Law firms and legal departments should provide periodic training for employees who have access to client information and keep them informed about state regulations and charges in the company’s data privacy policies. In-house and outside counsel need to be thorough and thoughtful in helping their organizations identify, maintain, and safeguard all client information that their organizations maintain.


It is essential for in-house and outside counsel to take the foregoing steps in order to protect client information. Since individual and business clients increasingly demand heightened privacy protection, companies and law firms that fail to implement comprehensive data security policies will risk losing competitive advantage in the marketplace. In-house and outside counsel should share a leadership role with IT and other personnel in developing and implementing detailed internal policies and procedures for collecting, using, and disclosing the information that is needed to provide the services that their organizations render.

Richard B. Friedman is the managing attorney of Richard Friedman PLLC, an employment litigation, commercial litigation, and employment counseling firm.  Rich and his five Of Counsel colleagues handle the following kinds of matters:

  • Management side employment litigation involving, among other things, non-compete, trade secret, and fiduciary duty issues where the firm often represents an individual co-defendant or third party witness aligned with a referring law firm’s corporate client;
  • Commercial litigation cases, particularly in the Commercial Division on whose Advisory Committee Rich serves as one of fifteen or so judicially appointment private practitioners with the then judges of that court;
  • Compensation-related FINRA arbitrations for well compensated finance personnel against their former employers;
  • Business divorces among partners, members of limited liability companies, and shareholders of closely held corporations; and
  • Counseling, drafting, and negotiating on behalf of senior and mid-level executives and companies in connection with employment, severance, and consulting agreements.

Rich has served as a legal commentator on CNN, FOX, and several other major networks on employment and litigation-related issues.  He is a member of the NYCLA Board of Directors and the Task Force NYCLA in The 21st Century.

Rich will be moderating a CLE program on September 27 entitled “The Virtual Workplace.”  A networking reception will take place from 6:00 p.m. to 6:30 p.m. For more information and to register https://www.nycla.org/NYCLA/Events/Event_Display.aspx?EventKey=CLE092717



NYCLA Civil Court Practice Section Honors the Honorable Fern Fisher, Honorable George Silver, Honorable Peter Wendt and Civil Court employees, John Smith and Karissa Farinas

The NYCLA Civil Court Practice Section had its annual dinner on June 12, 2017 at the beautiful Battery Gardens Restaurant.  Our honorees were the Honorable Fern Fisher, Honorable George Silver, Honorable Peter Wendt and Civil Court employees, John Smith and Karissa Farinas .

The hard work and dedication of our honorees reflecton the spirit that makes the Civil Court the special and wonderful institution that it is.  Truly the “People’s Court”, New Yorkers from all walks of life come to Civil Court to have their disputes heard and adjudicated fairly and compassionately.  The Civil Court Practice Section seeks to recognize those individuals whose valuable service is essential to preserving the Civil Court as a unique forum for the dispensation of justice.

The Section also seeks to educate lawyers and the public about the Civil Court and offers practical advice on how to achieve fair and just results for the thousands of litigants who have cases there.  Over the past year, the Section has heard from several fine speakers who have recounted the important work performed in the Civil Court, including practitioners, judges, and our county clerk.  We have worked on projects designed to help attorneys and litigants understand the role and purposes of Civil Court, as well as get a better understanding of how to navigate through its many technical and complex proceedings.

Our honorees reflect the ideals of our Section.  This year we are particularly gratified to have honored both the outgoing and incoming Deputy Chief Administrative Judges for the New York City Courts.  Over the course of her 28 year career in the judicial system, Justice Fern Fisher’s impressive legacy includes the gifts of her exceptional leadership, tireless work ethic and passionate devotion to access to justice for all.  She will be deeply missed.  Justice Fisher is succeeded by the Honorable Justice George Silver.  Our Section was privileged to honor Justice Silver for his integrity, leadership and innovate approach to managing and resolving cases.  We look forward to working with him in his new role.   Judge Peter Wendt has had a distinguished career as one of New York County’s most respected and learned Housing Court Judges.  His anecdotes and memories of his many years of service were both entertaining and illuminating.    The Section also presented its Melvin C. Levine Distinguished Service Awards to court employees John Smith and Karissa Farinas, both of whom have provided invaluable assistance to the countless pro se litigants that appear in Civil Court.  Additional speakers included the Honorable Anthony Cannataro, Honorable Anne Katz and the Honorable John J. Kelley (Co-Chair of the Civil Court Practice Section).

The success of the dinner would not have been possible without the hard work and dedication of our Co-Chairs Suzanne Adams, who also serves as a Co-Chair of the Section, and Nicholas Moyne.  We were blessed with perfect weather, great food, drink and conversation and wonderful speeches by our distinguished honorees.  A good time was had by all!  We look forward to your participation in next year’s dinner.  Until then, please join our committees, as they are an essential part of the NYCLA experience.


All pictures were taken by Rachel Marks of Orah Photography. To order individual photos or view photo album please visit https://goo.gl/8bipmZ


How Bar Association Membership Can Help Law Students Ignite Their Professional Passion By Daniel K. Wiig [1]


Recently, a well-known and long-standing media personality came up in conversation with a friend. “Why is she still working?” asked the friend, who further noted the personality’s long tenure in broadcasting and likely wealth accumulation.  “She doesn’t need to work anymore”, concluded the comment.

“Well, I don’t think she really is working”, responded me.

That does seem to be the golden egg for our professional lives: to find that which engages the inner passion, so the manner in which one earns a living is not listless and consumed with an ever-pining for the weekend, but rather filed with the joy and enthusiasm of a child entering an amusement park.

Finding that joy seems to evade the majority of professionals.  In order to avoid falling into this pool, law students should make it a mission to find what stirs the soul early in their law school career so to pave the path for a rewarding and fulfilling career. To be sure, for some, finding this is achieved by simply pursuing what comes naturally without much forethought.  Enjoying a good debate or arguing for a cause may organically lead to a career as litigator.  Those who relish in managing projects may be drawn to a career as a corporate lawyer.  But how do you drill deeper? In what areas should you litigate? Personal Injury?  Employment matters? And what projects should you put together? The next great technology merger or luxury golf course?

There are many options available for students willing to fan the flames to ignite their professional passion.  To be sure, upper-level elective courses, internships, externships, clinics, and part time jobs all can aide students in this pursuit.  But an invaluable asset in a student’s arsenal to help navigate the legal profession and find that fervor is membership in a bar association.

Joining a committee can help students become engaged in the issues currently affecting a particular practice area.  In so doing, a student can ascertain if they wish to spend the life of a career concerned with said subject matter.   Moreover, joining a committee often serves as the catalyst for forming career-long professional relationships, even friendships, with fellow committee members.  Consequently, these new-found friends and acquaintances can provide an insider’s view on the realities of practicing within a given area.

Programming is also useful.  Of particular interest here are the myriad of programs designed to expose students and attorneys to specific practice areas and those that address discrete issues within certain areas.  Here, students can hear from leaders in a given field, and ascertain whether they wish to spend the next 40 plus years dealing with these and similar issues germane to the subject area.

Finally, networking programs should not be discounted.  While usually associated with socializing, networking events can be the catalyst for those with common bonds, such as membership in a bar association, to form professional alliances.  And, as with the relationships formed through committee engagement, such alliances can blossom into one of mentor-mentee, with the student gaining valuable insight into a practice area.

Bar Associations provide numerous opportunities for law students, not only during the embryonic stages of their careers, but throughout its entire trajectory.  Students should take advantage of all that membership has to offer to help forge a meaningful and satisfactory career in the law.




[1] Daniel K. Wiig is In-House Counsel to Municipal Credit Union, where he is involved in the day-to-day management of the legal affairs of the $2 billion + financial institution.   Dan is also an Adjunct Law Professor at St. John’s University School of Law.  He presently serves as a Director of the NYCLA Foundation.

NYCLA’s Center for Corporate Governance

NYCLA’s Center for Corporate Governance is dedicated to educating legal practitioners, their clients and others with an interest in corporate governance, in the best practices for corporations, their officers and in particular, their boards. Greg Markel, Partner, Seyfarth Shaw LLP,  and Chairman of NYCLA’s Center for Corporate Governance has been planning educational programs to advance the Center’s objective, including a program on Special Board Committees held in January at the Yale Club and co-sponsored by The Deal. As an outgrowth of the preparation for the program, Greg Markel and Heather E. Murray, Associate, Seyfarth Shaw LLP,   wrote an article on Internal Investigations: Special Board Committees, published in the June/July 2017 issue of Practical Law. The article discusses how companies often form special committees to conduct independent internal investigations into potential misconduct and explains key issues, including preserving independence and maintaining privilege. The article further examines best practices to help companies and their counsel to avoid the pitfalls that threaten the effectiveness of these committee-run investigations.

To learn more about NYCLA’s Center for Corporate Governance and to read the full article, click here.


For more information please contact Greg Markel, Partner, Seyfarth Shaw LLP, and Chairman of the Center for Corporate Governance at the New York County Lawyers Association.

Mr. Markel can be reached at gmarkel@seyfarth.com.

NYCLA Presidential Induction Speech by Michael J. McNamara

Before I begin my remarks, there are a number of people that I want to recognize and thank. First of all, thank you Michael for that overly generous introduction. In my experience, the key to success is keeping expectations very low, but I am genuinely grateful for the kind words and the confidence you expressed in me and I hope I can live up to the high bar you have set tonight. Thank you also to my beautiful children, Chris and Megan, for their moving and amusing words. I didn’t know in advance what you were going to say and I must confess I’m somewhat overwhelmed. I want you to know I could not be prouder of both of you and I am so grateful to be able to show everyone here what wonderful children your mom and I, okay mostly your mom, raised. On that note, I also want to thank my wife, Maryellen, who did nothing short of transform my life over the last 35 years, raising our children while pursuing her own career as a marketing professor at Nassau Community College, sometimes with one of them tucked under her arm (they were a lot smaller then), never missing a beat and always being patient, kind and supportive. And I would like to mention my mother and father, who are still with us but not able to be here tonight. I would not be standing here without the love, support and encouragement they gave me and they would be overjoyed to see their grandchildren here tonight.  And I want to acknowledge my son-in-law, Owen Barbour, who is here tonight and Jessica Herlihy, my son’s girlfriend, who is also here, and thank them for coming.

I also want to welcome our distinguished guests, including the many judges who are here tonight, as well as the President of the State Bar, Claire Gutekunst, the President-Elect of State Bar, Sharon Stern Gerstman and the Treasurer, Scott Karson, our Past Presidents, Board members and leaders of all the other bar associations who are here tonight. You honor me and NYCLA with your presence and I am grateful. Congratulations to the Officers who were elected tonight. Steve Lessard, Vince Chang, Asha Smith, Adrienne Koch, NYCLA is fortunate to have such an outstanding group of leaders. And congratulations to our new board members.

I also want to welcome all of my friends who are here tonight, including a contingent from Seward & Kissel, my professional home for the past 29 years. They include many of my litigation partners and associates, Jim Cofer, our Managing Partner, Kal Das, who’s been my partner for almost 24 years and the incomparable Mary Nielsen who has been putting up with me and keeping me on track for more than 15 years. I also want to acknowledge the Firm’s generosity in underwriting the costs of tonight’s reception which follows this meeting.

I want to especially note the presence of  the long-time chairman of Seward & Kissel, Gene Souther, who was the 43rd President of this Association. Gene was the President of NYCLA when I joined the firm in 1988 and he actively encouraged my involvement with the Federal Courts Committee, my home Committee, first as a member of the Committee and later as its Chair and he encouraged me over the years to get involved in leadership of the organization.  For that, and so much more, I am very grateful to him and so happy that he is with us tonight.

Finally, I want to thank Carol Sigmond for the lovely hammer and moving van she presented me with earlier this evening. To be honest, I was sort of hoping for a sports car. But I want to also thank her publicly for her hard work and dedication to this organization. And I have a few parting gifts for her as well, a framed certificate of appreciation, an Albany cap and coffee mug and some snacks which she can take with her as she embarks on her next journey in Albany as a member of the State Bar EC. Please join me in a round of applause for Carol.


Turning to my remarks, I want to say at the outset that I am humbled to become the leader of an organization that counts among its Past Presidents legal titans such as William Nelson Cromwell of Sullivan & Cromwell and Charles Evans Hughes, who was also Governor of the State of New York, Secretary of State of the United States, an Associate Justice and later Chief Justice of the United States Supreme Court, President of State Bar and the ABA, to name but two of our great leaders. We are truly standing on the shoulders of giants. I am also very proud to become the President of the first bar association in New York and one of the first in the United States to welcome all lawyers regardless of gender, race, ethnicity or religion. And I feel fortunate to become the President of NYCLA at a time when there is so much going on at the Association and in our society.

I’m going to divide my remarks this evening in two parts: first I want to share my perspective on the process that is underway regarding the building and how that fits with some of the other things we are doing at NYCLA to engage our membership. And then I’d like to comment briefly on some of the things we plan to do to further our mission to improve access to justice and promote confidence in the justice system. And I promise to be brief.

The Home of Law: Process and Membership Engagement

In preparing these remarks and really over the past year or more, I have thought quite a bit about this grand building, its history and about the past leaders of this Association who worked so hard to establish the Home of Law here at 14 Vesey Street. This building was the dream of William Nelson Cromwell, who found the location, made a substantial donation for the purchase of the property, and selected the architect, Cass Gilbert, who also designed the U.S. Supreme Court.

On the day the building was dedicated — May 26, 1930, 87 years ago tomorrow — Benjamin Cardozo, the renowned Chief Judge of the New York Court of Appeals delivered the principal address. It is a building that houses a library that Thurgood Marshall worked in as a young lawyer in the 1940s, a building that is across the street from the chapel where George Washington prayed on the day he was inaugurated as the first President of the United States. There is extraordinary history here, all you need to do is look around this room, and the attachment that so many members feel to the building is completely understandable, indeed commendable. It was the perfect building for lawyers in the 20th Century and I have no doubt that the building contributed significantly to this Association’s great stature and attracted many members. And I understand that even the thought of change is difficult and we do not consider it lightly. As Carol indicated earlier, we are beginning to investigate our options with respect to the building. I think it is important to note in very clear terms, we are at the beginning of this process, these are early days. At this point, there is a great deal we simply don’t know. And so we have made no decisions at this point other than to engage in a process to see what options the organization might have. And while there is a lot we don’t know, there are some things we do know.

We know that the world that our members practice in today is very different than the one that existed in 1930 when this building was dedicated or even when I began practicing law in 1983. Technology has completely changed the way lawyers work, where they work, how they communicate and the tools they need to succeed. Much of our work and interaction today is virtual, the need for physical space has decreased and at the same time the demand for flexible space with state of the art technology has increased. And that trend will continue and likely accelerate.

We know that there is a very substantial and escalating cost to operating the building, both in terms of money and time. And we know that we have a new generation of lawyers, millennials like Chris and Megan and their contemporaries, many with different ideas about their careers and their lives and about the value of bar membership.

So in the event that we discover we do have options — and I hope we will — we have to keep in mind, first and foremost, that we are a membership organization and every decision we make has to take into account the interests of our members. Without members, it doesn’t matter very much where our home is or even if we have a home. So the question we must ask (and I’m confident the question Cromwell would ask) is not should we stay or should we go, but what is in the best interests of our members today and in the future? Simply put, how do we improve the lives of our members? And so we will pursue the process and it may be that we will conclude that NYCLA’s future would be better served with a moving van, or we may find we need this hammer and some more tools.

Two final points on the building.

First, having been involved for over a year in discussions about the building, having been part of the process that we engaged in with our architects to envision what an optimal space would look like for our organization, and having some understanding of the transformation the San Diego County Bar Association was able to achieve when it recently moved to a new home, depending on how this plays out we may have an opportunity to relocate to a new state of the art 21st Century home that would effectively allow us to re-launch our Association, that would serve as an incredible resource for our current and future members and that would help ensure that this great bar association will continue to thrive for many more years.

Second, we do not intend to become a purely virtual organization, whatever we ultimately decide, NYCLA will continue to have a significant physical home — a place where our members, members of other Associations and the public can come and meet — like tonight to celebrate, a place where lawyers come every day, to learn, to meet with other lawyers, to charge their phones or get a cup of coffee in the lounge, whether it is in this building or somewhere else, and it will continue to be a place that is welcoming to all lawyers.

So please stay tuned.  We are at the beginning of an interesting chapter, we will update you on our progress as we move along and we are interested in hearing from you as well.

One other point on membership:  We are going to be doing a lot more than just focus on space issues. Cromwell believed that every lawyer should belong to a bar association.  I agree but the reality is that we need to work hard to demonstrate the value proposition to existing and potential members. Our new Co-Chairs of the Membership Committee, Pam Gallagher and my partner, Jack Yoskowitz, will be working with our Director of Membership, Toni Valenti, on initiatives and projects to do just that. There are a number of different ways we will be engaging our members and prospective members, including through our  new website, but one of the things that I have asked them to keep in mind which I think is very important and underrated is the social aspect, having fun events and happy members. A point, by the way, that has been made to me emphatically by my own millennial lawyers.

Over the past few years we have held some terrific events here at NYCLA. In addition to the musical tributes and operetta that my friend Marti Stine highlighted earlier, we also had a great casino night in this hall. Those were some of my favorite bar association nights and I hope we will have many more like that in the coming year. And I hope to see many of you at those events.

Justice Center 2.0

As I embark on the leadership of this great organization, I am acutely aware that our communities and Courts are also facing many challenges. At NYCLA, we do a lot, we have outstanding programming and events, we sponsor terrific pro bono programs and we have Task Forces that are tackling important issues. But in view of the “interesting times” in which we live, we can and need to do more, so we are also relaunching our Justice Center.

Originally founded in 2003, the Justice Center was intended as a bridge between NYCLA and community leaders and organizations to help identify important social justice issues and collaborate to find solutions. One of the premises was that lawyer-citizen partnerships would lead to increased citizen understanding of the justice system and result in meaningful improvements and increased confidence in the justice system. And the Justice Center was instrumental in a number of very successful programs and initiatives but it lost a bit of its momentum in recent years.

With the current crisis in confidence and challenges our communities are facing, there has never been a more important time for a revitalized Justice Center that can act as a catalyst and a think tank for additional programs and initiatives. Over the past several months I have been working with Jim Kobak and Kevin McKay, the leaders of the Justice Center, to identify some new Advisory Board members and worthy endeavors for the Justice Center. Very pleased to report we have made excellent progress and that Justice Center 2.0 will be kicking off this fall with several new enthusiastic Advisory Board members, lawyers and non-lawyers, some of whom I see here tonight, and a renewed focus on some very timely issues, including (1) civic education, (2) racial justice, and (3) access to justice, including immigration issues, which loom large in our city and nation these days. I am very confident that a year from now I will be reporting to you on the great work Jim, Kevin and the Advisory Board have been doing at Justice Center 2.0.

NYCLA’s Relationship with the Courts

Before I conclude, I want to mention briefly NYCLA’s relationship with the bench and the organized bar. NYCLA has always had a special relationship with the federal and state courts . We have worked cooperatively with the leaders of our Courts to identify issues of concern and propose effective solutions. We have spoken out when “so-called judges” have been unfairly attacked.  We have also spoken when budget cuts threatened the operations of the Courts and the interests of the public. That role is very important to us at NYCLA and it will continue.

In the coming weeks, I will be reaching out to and meeting with court leaders to talk about the things we are doing at NYCLA and to see how we can be of further service to them.

NYCLA’s Relationship with Other Bar Associations

I also believe that there are numerous opportunities for us to work collaboratively with our sister bar associations and, where appropriate, use our collective voice to speak out on important issues. We live in a time when the collective voice of the organized bar has never been more important. I am very grateful that so many bar leaders have taken time out of their busy schedules to be with us tonight. As we go forward, we will seek out additional opportunities to collaborate with you and work to deepen our ties and further strengthen the organized bar in New York.

Before closing, I have one final thank you, to the exceptional Staff at NYCLA. It is truly remarkable what we accomplish day in and day out, year after year at this organization with very lean staff and sometimes under very difficult conditions. Please join me in a round of applause for our outstanding Executive Director, Sophia Gianacoplos, the leadership team, Bari Chase, Lois Davis, Dan Jordan, Toni Valenti and Anthe Vorkas, and their support staff.

Thank you all very much for being here tonight in the rain and please join us across the hall for the reception.

NYCLA Education Law Committee Comments on the New York City Department of Education Discipline Code

On January 25, 2017, the New York City Department of Education held a public hearing to accept comments on this year’s Discipline Code before the proposed changes are adopted later this year.  While advocates consider many of the amendments to be a step in the right direction, there is still considerably more the Code could do to cut down on suspensions, address racial disparities, and foster a positive school climate.

While the Code seeks to reduce suspensions for students in Kindergarten through second grade, except in cases of behavior that is violent, could cause serious harm, or violates the Gun-Free Schools Act, it does not eliminate the possibility of suspension entirely for these young students, as proposed by the Mayor’s Leadership Team on School Climate and Discipline last July.  Research has shown that suspending children at young ages can have a lasting negative impact on their academic success by depriving them of critical learning time in the classroom while failing to help them understand and manage their behavior in school.  Other states, such as California, Connecticut, Oregon, and, beginning this fall, New Jersey, have already prohibited schools from suspending our youngest students and instead focused on appropriate positive interventions.

The Code also neglects to eliminate suspension as an option for certain subjective offenses in an effort to address the significant racial disparity in school discipline.  Black students are nearly four times more likely to be suspended than their white peers – primarily for minor, discretionary infractions, such as disobedience or insubordination, rather than actual violent behavior.  Infractions with vague language such as B-21 – “defying or disobeying the lawful authority or directive of school personnel or safety agents in a way that substantially disrupts the education process and/or poses a danger to the school community” – have been associated with high rates of disparity not only in New York City but nationwide.  Requiring principals to seek approval from the DOE’s Office of Safety and Youth Development before invoking a B-21 principal’s suspension is simply not enough.  Addressing this type of disobedient behavior is most appropriately done through alternatives to suspension – restorative practices, conflict resolution, peer mediation, etc.

In addition, the Code provides almost no clarity on the role of School Safety Officers in schools.  In particular, it ought to provide guidance on how officers should interact with students and when restraints should be used.  The Code should also discourage criminal court summonses for minor offenses and encourage efforts to ensure that students are not subject to unnecessary arrests.  Such amendments will prevent more students from entering the criminal justice system for non-violent behavior when they could instead remain in school and continue their education.

Finally, in 2015, the Code eliminated students’ rights to receive written notice of the reasons for disciplinary action taken against them in a timely fashion.  However, this important due process right should be added back into the Code.  It is crucial that students and parents be promptly informed in writing of the accusations against them so that they may have an opportunity to dispute the charges if they are inaccurate.  Timely written notice of a disciplinary action is an essential due process right, and it needs to be spelled out clearly in the Code.

The Discipline Code has certainly come a long way in the past several years, but it is essential that the DOE seriously consider advocates’ concerns and suggestions in order to create a more positive disciplinary policy for all students.

Divorce and Credit Card Debt

By Justine Borer, Esq. and Cheryl Stein, Esq.

As cash fades into the background, credit cards are becoming a dominant currency. The credit card industry is competitive. Credit card companies often offer incentives to use their credit cards, hoping that consumers will take the bait. Under federal law, for the protection of consumers, credit card companies must follow certain protocols, which define the terms under which credit is issued to individuals.  In turn, the form in which credit is issued to spouses can impact their responsibilities at divorce.

What is the significance of the Equal Credit Opportunity Act for people considering marriage or divorce?

The Equal Credit Opportunity Act, codified at 15 U.S.C. § 1691 et seq. (the “ECOA”), enacted in 1974, protects consumers who deal with companies that regularly extend credit, including banks, small loan and finance companies, retail and department stores, credit card companies, and credit unions.[i]  Parties who participate in the decision to grant credit and arrange financing must follow this law.

Before the ECOA, a woman often faced roadblocks when she tried to establish credit in her own name.[ii]  Under the ECOA, a creditor is prohibited from discriminating against an applicant on the basis of gender or marital status (among other things). In New York and other equitable distribution states, creditors may not inquire about marital status if an applicant is applying for separate, unsecured credit.  In community property states, creditors may ask about marital status even if an applicant is applying for separate, unsecured credit.  Across the board, regardless of whether a couple lives in a community property or equitable distribution state, creditors may make such inquiries if the credit is secured by property – such as a home mortgage – or if spouses are seeking joint credit.  Whether the credit is separate or joint, secured or unsecured, creditors may not discriminate on the basis of gender or marital status when deciding to extend credit.  In addition, the ECOA requires credit card issuers to provide a nondiscriminatory reason for denying credit and credit increases, singling out a particular creditor for negative changes in the terms of his credit, or refusing to extend credit under the same or approximately the same terms as were put forth when the application was made. The ECOA further prohibits creditors from disregarding spousal maintenance and child support as sources of income, and thus provides a safeguard for divorced women seeking credit.

Other regulations further circumscribed what the creditor could inquire about when vetting applicants. One such regulation concerned inquiries about household income. The result: a consumer was able to rely on the income of his or her spouse when applying for individual credit. This regulation paved the way for married women, whether working outside the home or not, to obtain credit in their own name.[iii]

Together with these regulations, the ECOA changed the landscape of credit card usage in the United States. In addition to leveling the playing field between marketer and consumer, the ECOA made some strides in leveling the playing field between men and women.  Following the passage of the ECOA, it was possible for single women to obtain their own credit cards and to buy condominiums and co-ops on their own.[iv]

What is the significance of the Credit Card Accountability Responsibility and Disclosure Act of 2009?

The Credit Card Accountability Responsibility and Disclosure Act of 2009 (the “CARD Act”) limits the breadth of the ECOA.  A provision of the CARD Act requires every credit card issuer to consider the consumer’s ability to make required payments under the terms of the account.  The CARD Act initially prohibited credit card issuers from considering household income.  This prohibition led to concerns that the CARD Act had important negative implications for non-working, divorced, or widowed women, as such women might have no access to their own credit, and thus might lack a credit history which could demonstrate creditworthiness.[v]

In 2013, the Consumer Financial Protection Bureau “updated existing regulations to make it easier for spouses or partners who do not work outside the home to qualify for credit cards…[by allowing] credit card issuers to consider income that a stay-at-home applicant, who is 21 or older, shares with a spouse or partner when evaluating the applicant for a new account or increased credit limit.”[vi]

What are the implications of divorce for credit card debt?

Liability for credit card debt at divorce depends on whether the divorce is filed in an equitable distribution or community property state, whether the debt is incurred on a jointly held credit card, and to whom the separation agreement assigns the debt.

In equitable distribution states, credit card debt incurred during a marriage is generally the joint responsibility of both parties, as long as both are co-signers on the credit card. (Note that in community property states, both spouses are generally responsible for debt incurred by one partner).[vii]

A spouse may need to take extra steps to protect him or herself when he or she holds debt on jointly held credit cards.  Credit card companies are not bound by divorce decrees, so they can pursue either spouse if credit card debt is not paid by the spouse who agreed to do so in a separation agreement.[viii] The contractually bound spouse may fail to pay for many reasons, including bankruptcy. When such failure occurs, credit card companies may legally pursue the other spouse for the debt (plus interest and penalties). Indemnification clauses in a separation can address this potentiality.  However, enforcement of the terms of an indemnification clause may require litigation. In some cases, the money spent on litigation may exceed the amount owed to the credit card company.  Further, trying to enforce such terms in an agreement can prolong litigation, as well as the hostility and contentiousness which often accompany it.

In New York State, what can a person do to protect himself or herself from credit card debt incurred by his or her spouse?

If a person is concerned about debt his or her spouse incurs, he or she may decline to open joint credit card accounts.  If a credit card account is in one spouse’s sole name, even if the other spouse is an additional cardholder, the other spouse is not liable for the debt.




[i] Credit applications – know my rights, MyFico, http://www.myfico.com/crediteducation/rights/creditapplicationrights.aspx (last visited Nov. 11, 2016).

[ii] NFCC Examines History of Women and Credit, National Foundation for Credit Counseling, https://www.nfcc.org/consumer-tools/consumer-tips/nfcc-examines-history-of-women-and-credit, (last visited Nov. 11, 2016).

[iii] Id.

[iv] Betsy Israel, Bachelor Girl: The Secret History of Single Women in the Twentieth Century 234 (2002).

[v] NFCC Examines History of Women and Credit, National Foundation for Credit Counseling, https://www.nfcc.org/consumer-tools/consumer-tips/nfcc-examines-history-of-women-and-credit, (last visited Nov. 11, 2016).

[vi] The CFPB Amends Card Act Rule to Make it Easier for Stay-at-Home Spouses and Partners to Get Credit Cards, CONSUMER FINANCIAL PROTECTION BUREAU (Apr. 29, 2013),  http://www.consumerfinance.gov/about-us/newsroom/the-cfpb-amends-card-act-rule-to-make-it-easier-for-stay-at-home-spouses-and-partners-to-get-credit-cards) (last visited Nov. 11, 2016).

[vii] Amy E. Buttell, Dividing credit card debt in divorce, CreditCards.com,  http://www.creditcards.com/credit-card-news/help/dividing-credit-card-debt-divorce-6000.php, (last visited Nov. 11, 2016).

[viii] Divorce Decrees – Protecting Your Credit, Joint Accounts, Financial Obligations, Credit Infocenter (Mar. 19, 2015), http://www.creditinfocenter.com/divorce/divorcedecrees.shtml, (last visited Nov. 11, 2016).

Out of the Closet and into the Schools: How the Department of Education Handles LGBT Issues.By NYCLA Education Law Committee

On September 27, 2016, NYCLA’s Education Law Committee hosted a panel discussion, “Out of the Closet and into the Schools: How the Department of Education Handles LGBT Issues.”  Council Member Daniel Dromm (Representative for District 25 and Chair of the Council’s Education Committee), Sebastian Maguire (Council Member Dromm’s Legislative Director), Mohamed Amin (Founder & ED, Caribbean Equality Project), and Colin Schumacher (Teacher at PS 364 the Earth School) served as panelists.  The discussion was an opportunity to analyze some of the challenges that LGBT youth face in New York City schools and the adequacy of the DOE’s response to the concerns of LGBT teachers, staff, and students.

The panelists spoke about the challenges LGBT youth face in coming out and the need for more safe spaces to offer support and community to these students.  They explained that while Gay-Straight Alliances, or GSAs, should be the rule, not the exception, across all of New York City’s public schools, the unfortunate reality is that even where there is interest among students, there often isn’t a staff member in the school community who feels equipped to serve as the group’s advisor, or sufficient funding to pay for that staff member’s time.  They emphasized the need for training and funding for school staff to ensure the creation of a more inclusive environment.

The speakers also discussed the DOE’s failure to adequately address bias-based bullying in schools, and the necessary steps needed to significantly improve school climate under the Dignity for All Students Act (DASA).  According to a recent survey of NYC students, only 22% attended a school with a comprehensive anti-bullying/harassment policy that included specific protections based on sexual orientation and/or gender identity/expression.  Additionally, many school staff members are under the mistaken impression that to make a DASA report will somehow reflect negatively on them or their school and fear consequences for making these reports.  The panelists clarified that educators or their schools will not suffer negatively because of their honesty, and encouraged the use of data collection as the first step to problem solving.

In addition to the need for support of LGBT students, the panelists also spoke about the same need for LGBT educators.  While these individuals are in the best positions to be proud out role models to LGBT youth, they often fear retaliation from supervisors or bigotry from parents and other members of school communities.  The speakers urged the Department of Education to make clear that this kind of discrimination and a culture of fear that closets LGBT teachers will not be tolerated.

Finally, the panelists examined the difficulty in changing school curriculums to place the civil rights struggles of the LGBT community on par with those of other minorities.  In a 2013-14 survey from GLSEN, students in NYC schools reported that they did not have LGBT-inclusive curricular resources, with only 30% being taught positive representations of LGBT people, history, and events, and nearly half (49%) could not access information about LGBT communities on school internet.  While many teachers do take steps to engage their students in meaningful social justice work that pays the same amount of attention to the civil rights struggles of the LGBT community, others may hesitate to deviate sharply from the mandates of supervisors who insist they stick closely to state standards.  The discussion emphasized the importance of expanding culturally responsive curriculums to include not just race and ethnicity but also sexual and gender identity.

Using this panel discussion as a guide, NYCLA’s Education Law Committee submitted written testimony at a public hearing hosted by the NYC Council’s Committee on Education on October 19, 2016.  The hearing centered on bullying, harassment, and discrimination in NYC schools, with a particular focus on protecting LGBT and other vulnerable students.  The Committee’s testimony affirmed the need for more than just access to a gender-neutral bathroom for LGBT adolescents, and encouraged the creation of supportive, inclusive communities that not only condemn bullying and harassment but also recognize and teach students about the LGBT community and its important contributions to society.  The Committee hopes that continued attention to these issues, with help from advocates like Council Member Dromm, will bring about important policy changes to make NYC’s schools safe and supportive spaces for all students.