“SOUND AND FURY . . . “: THE SUPREME COURT THROWS UP IT’S HANDS ON ATTORNEY-CLIENT PRIVILEGE

                                                                                                            By:  Ronald C. Minkoff

            After months of briefing by the parties, more than a dozen amicus submissions, and an extended oral argument two weeks ago, the U.S. Supreme Court yesterday suddenly dismissed the appeal in In re Grand Jury on the ground that certiorari was improvidently granted.   This appeal, described by many bloggers as the most significant attorney-client privilege case before the Court in many years, turned out to be, in the Justices’ eyes, “sound and fury, signifying nothing.”  Macbeth, Act V, Scene 5, lines 16-27.

            How did this happen?  All the pieces for a blockbuster decision were in place.  The parties dispute whether a law firm must produce documents concerning (1) “the procedural aspects” of preparing a client’s tax return, and (2) advice as to completing the return, either by a lawyer or an accountant – classic scenarios raising the question of whether the documents contained legal advice (the attorney-client privilege would apply) or business advice (the privilege would not apply).  See Government’s Brief at 4 (citing District Court).  The issue was important:  the Government wanted the privilege interpreted narrowly so it could better investigate possible criminal activity, while businesses wanted the privilege interpreted more broadly so as to cover these so-called “dual purpose communications”.  The issue had wide application, as it affected the ability of businesspeople and their lawyers to predict whether the privilege would apply to their communications in transactional settings.  On top of this, there was a split among the Circuits: the Ninth Circuit, in ordering production, applied the “primary purpose” test – i.e,, that the privilege applies only if the “primary purpose” of the communication was providing legal advice — while the law firm sought to apply the broader “substantial purpose” test espoused by the D.C. Circuit.

            But as soon as the oral argument began, the hope of a significant, clear ruling started to crumble.  Prodded by the Justices, the lawyers on both sides abandoned their original positions.  The law firm, noting the difficulty of establishing whether the legal purpose of a given dual purpose communication could be considered “substantial”, much less “principal”, began arguing for an even broader interpretation of the privilege, where all the proponent had to show was a “bona fide legal purpose.”  Oral Arg. Tr. at 28.  The Government, meanwhile, appeared (at least to some of the Justices) to retreat from, the “primary purpose” test to contend that a communication with a “substantial” legal purpose would be privileged – as long as the legal purpose was really, really substantial (even if not primary).  Id. at 50-51. 

            These verbal gymnastics left the Justices spinning.   Justice Kagan pointed out that the majority of courts have been using the “primary purpose” test for years, and “there’s no particular evidence of confusion, nor is there any particular evidence” that attorney-client communications are being chilled.  Id. at 18.  Justice Sotomayor worried that departing from the majority test would risk putting the federal courts at odds with state courts, who also use the “principal purpose” test, with the ability to assert the privilege riding on the forum where the case was brought.  Id. at 15-16.  Many of the Justices scratched their heads at trying to determine what percentage of the communication had to be legal – 51%? 49%? 40%? – for the “principal purpose” test to apply.  Id. at 12 (Justice Jackson: if 90% of the document is a factual recitation and only 10% is legal, is it privileged?); Id. at 29 (Justice Sotomayor: “Is it 51 percent versus 49 percent or the 50/50 situation” where privilege will apply?); Id. at 28 (Justice Alito:  “Significance concerns importance. Maybe it’s a lot lower perhaps than primary, but it does involve a . . . certain quantum of importance”).  Chief Justice Roberts bemoaned “I think we’re talking about labels rather than analysis”.  Justice Kagan perhaps best summed up the Court’s conundrum by asking one of the lawyers to “comment on, you know, the ancient legal principle, if it ain’t broke, don’t fix it.” Id. at 33.

            That, apparently, is where the Court ended up.  The “primary purpose” test is basically working; any other test would be too broad, too narrow or at least equally confusing; and solidifying any test might remove the flexibility trial judges need to make privilege determinations regarding complicated, dual purpose documents.  So, in the end, the Court retreated, leaving things as they are:  doctrinally confused, but providing sufficient guidance for judges to do their work.

            One more comment.  The case did contain another, even more difficult issue:  if lawyers and accountants are giving essentially the same advice, why is one privileged and the other not?  And how, in the area of tax law and tax reporting, can we draw lines about what accountants and lawyers can and cannot do?  But though some of the Justice alluded to this concern, neither they nor the parties wanted to address it.  The question of whether non-lawyers, like accountants, can provide what is essentially legal advice without being admitted to the Bar will – like the standard for evaluating dual purpose communications – remain for another day.

The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

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Website Design and Discrimination

This Supreme Court constantly amazes me. Yesterday’s oral argument in the “same sex marriage website design” case referred to compelled expressive conduct on the part of the website designer but there was barely a peep about discrimination.  The case concerns a woman who designs wedding websites, and she objects to doing that for same-sex couples on religious freedom grounds.  This was, she argued, compelled speech violating her First Amendment rights.

No doubt there is some force to that argument, but Justice Kavanaugh’s analogy to commercial jewelry sales which he seemed to be saying lacked expressive content is also arguably misplaced.  Isn’t a jeweler who sells wedding rings to a same sex couple implicitly endorsing the relationship in a similar way to the website designer?  Why can one refuse to deal but not the other?

But the analogy that strikes me as more apt is discrimination.  If the website designer was refusing to work for Black couples, is there any doubt we’d find a violation of the Civil Rights Act of 1964?  There was barely a peep at the argument about this analogy, and what peeping there was focused on anti-miscegenation statutes from the days of Jim Crow.  What if the website designer asserted that her religion compelled her not to support Black marriage or Black rights (let alone, God forbid, racial inter-marriage)?  Don’t say it couldn’t happen.  Race discrimination and segregation were behind the great Baptist split, into the American Baptist and Southern Baptist conventions years ago, and we still deal with the consequences of that split today in the sense that right-wing evangelicalism has some of its roots in that division.  Why does the First amendment/religious freedom argument sound better when applied to same-sex marriage than to racial discrimination?  And why wasn’t there more focus on the discrimination analogy than there was on the compelled speech point?

Just askin.’                

Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

WHEN YOU REALLY WANT TO DO SOMETHING UNCONSTITUTIONAL, REMEMBER TO ASK THE SUPREME COURT FOR A STAY

The Supreme Court has once again raised questions about its use of the shadow docket to grant stays in cases where the challenged actions were clearly unconstitutional based on existing decisional law, except the Supreme Court, by granting stays, permitted the unconstitutional actions to continue.  How did this happen?

In the Alabama voting rights case, which I blogged about here on February 10, the lower court held an election district map intentionally and improperly diluted Black votes through extreme gerrymandering, in violation of the Voting Rights Act.  The Supreme Court stayed that ruling while it reviews the case, on the ground that the possible map adjustments ordered by the court below came too close to this year’s midterms.  I believe that ruling was substantively incorrect, as I argued in the previous blog post.  There could not possibly be an earlier litigation given the timing of release of census data necessary for redistricting, which only happened in November; the time necessary to use that data to draw the maps; and then the time to litigate to challenge the maps.  If not now, then when?

Additionally troublesome, however, is the standard that the Supreme Court used in granting a stay.  Justice Kavanaugh said that to be granted a stay, a petitioner “ordinarily must show (i) a reasonable probability that this Court would eventually grant review and a fair prospect that the Court would reverse, and (ii) that the applicant would likely suffer irreparable injury absent the stay.”  That is, quite simply, not a correct statement of the law, unless he has the power to change the law in a concurrence.  The standard for a stay ordinarily is a STRONG likelihood of success on the merits; irreparable harm absent a stay; that the petitioner’s harm outweighs the harm from granting a stay; and that the public interest would be furthered by the granting of a stay.  Innumerable cases, in the Supreme Court and the Courts of Appeal, could be cited for this basic proposition. 

Reading the two standards together, it is easy see how the standard articulated by Justice Kavanaugh is far easier to meet.  Strong likelihood of success is more stringent than a reasonable probability; and there is no mention by him of balancing the harms, which is particularly important here.  Granting the stay gives the Republicans the gerrymandered map that they want, but at the cost, as the lower court found, of diluting Black votes.  Whose harm is more irreparable, or more important?

It wasn’t as if the Court simply overlooked the point.  Chief Justice Roberts, in a dissent to the stay application, said that the lower court’s ruling was plainly a correct interpretation of vote dilution under existing law and precedent, and Justice Kavanaugh made no effort to dispute that.  If so, how can you say there is even a likelihood of success, let alone a strong likelihood, unless the five conservative Justices (six, minus the Chief), have already decided to circumscribe existing law under the Voting Rights Act, before briefing let alone argument.  And how can you look at only one side’s position on irreparable harm?  Certainly Blacks whose votes are diluted have irreparable harm.  So, stay practice, including the misapplication of the stay standard, may result in permitting illegal, if not even outright unconstitutional, behavior.

Something similar happened in the Texas bounty hunter abortion case, which I’ve also blogged about.  In that case there was full briefing and argument, on the issue of remedies for a six week abortion ban, which is plainly unlawful under existing law (Roe and Casey).  After the Court’s decision, there was a remand, and the Fifth Circuit certified a question about remedies under state law to the Texas Supreme Court.  In the meantime, the plainly unconstitutional statute continued in place.  The plaintiffs took issue with how the Fifth Circuit was handling the remand, seeking in the Supreme Court to stay the certified question proceeding and to compel the case to be sent back to the District Court.  The Supreme Court denied that application, and between that stay denial and the manner in which the Fifth Circuit is handling the matter a plainly unconstitutional statute is continuing to be enforced.  We all know we’re awaiting the Dobbs decision which may significantly alter the constitutional law on abortion, but at the moment a six week ban is unlawful.

What the two cases do have in common is the fact that many observers believe the Supreme Court is prepared to restrict both abortion and the Voting Rights Act.  The Court’s rulings on stay applications may simply presage that.  But that is also not a good thing.  The Court shouldn’t be anticipating intended changes in the law in such a fashion.  What is the purpose of briefing and argument if the issue has already been pre-judged?  And how can the Court retain institutional legitimacy if it can be perceived to have pre-judged, and even to have a jurisprudential agenda?

Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

5Pointz Opinion: Maximum Statutory Damages Awarded to Aerosol Artists; Additional Clarity on “Recognized Stature” Standard

by Megan E. Noh and Christopher J. Robinson

On February 12, Senior U.S. District Judge Frederic Block of the Eastern District of New York issued an important and long-awaited decision in the highly-publicized “5Pointz” case. See Cohen et al. v. G & M Realty L.P. et al, 1:13 -cv-05612-FB (E.D.N.Y. Feb. 12, 2018) (the “Opinion”). The action was commenced in 2013 by a group of aerosol artists against real estate developer Gerald Wolkoff and his business entities in connection with murals painted at the Long Island City, Queens site from which the case took its popular name. The plaintiff artists, each of whom had contributed artworks to 5Pointz, had previously sought an injunction under the Visual Artists Rights Act, 17 U.S.C. § 106A (“VARA”), against Wolkoff’s planned demolition of the warehouse buildings at the site in order to redevelop it for luxury housing. In November 2013, Judge Block denied plaintiffs’ request for injunctive relief. Within eight days of that denial, Wolkoff directed a program of systematic “whitewashing” of the majority of the disputed murals, and subsequently denied certain artist plaintiffs access to the buildings on the site, thereby preventing their recovery of additional works of art located there.

Although their attempt to save the 5Pointz murals was unsuccessful, the artists continued to pursue their claims, filing an amended complaint in April 2014 seeking resulting damages and costs under VARA. Wolkoff responded to the amended complaint in May 2014, asserting a counterclaim for “abuse of process” and alleging false testimony by the lead plaintiff Jonathan Cohen, who in addition to contributing works of art, had also curated the site. In July 2016, Cohen moved to dismiss or alternatively for summary judgment on Wolkoff’s counterclaim, and Wolkoff subsequently moved for summary judgment on plaintiffs’ claims, arguing, inter alia, that the murals at issue were not protected by VARA because they had not achieved the “recognized stature” required by that statute as a precursor to protection against destruction. The hearing on the summary judgment motions lasted three weeks, but in a surprising twist, “just prior to summations, plaintiffs … waived their jury rights. Rather than summarily dismiss the jury after it had sat through the entire trial, the Court converted it to an advisory jury.” Opinion at 5.

Adopting the jury’s findings in large part, Judge Block found that Wolkoff and his corporate entities were liable for willful violation of the artists’ VARA rights with respect to 45 works of art, and awarded the maximum statutory damages possible, in the amount of $6,750,000. In addition to its implicit recognition of the legitimacy of aerosol art and of the “striking technical and artistic mastery and vision” of the specific works at issue—which Judge Block praised as being “worthy of display in prominent museums,” Opinion at 13—the decision provides much-welcome clarification on several issues under VARA.

One such issue is the question of “temporary” works of art. In his July 2016 motion for dismissal of plaintiffs’ claims, Wolkoff had argued that VARA does not afford protection to works intended by an artist to be “ephemeral.” Judge Block easily dispensed with this argument, finding that “it is clear from 17 U.S.C. § 113(d) that temporary works are protected,” and that the statute focuses on removability of works, not their permanence. Opinion at 23, 25.

Tougher to tackle was the issue of “recognized stature,” the predicate showing that a plaintiff must make with respect to an artwork for which VARA protection is sought. Since its enactment in 1990, VARA has been litigated relatively infrequently, and judicial interpretation of the “recognized stature” language has been inconsistent, leading to confusing outcomes. The first significant case to address “recognized stature,” Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994), applied a two-tiered analysis, requiring a plaintiff to show “(1) that the [artwork] in question has ‘stature,’ i.e. is viewed as meritorious, and (2) that this stature is ‘recognized’ by art experts, other members of the artistic community, or by some cross-section of society.” 861 F. Supp. at 325. Although some courts have recognized that testimony or other evidence of community recognition toward a showing of “recognized stature” may be relatively informal, see Martin v. City of Indianapolis, 192 F.3d 608, 613 (7^th Cir. 1999) (upholding judgment in favor of sculptor based on newspaper articles, published testimonials and letters, despite no expert testimony being proffered on the issue), scholars in the art law community have criticized other decisions as establishing an unreasonably high bar to an artwork’s qualification for VARA protection. Against this backdrop, the art world carefully scrutinized the preliminary injunction hearing in the 5Pointz case, in which Erin Thompson, the CUNY art history professor who testified on Wolkoff’s behalf, asserted that in order for artwork to qualify for protection under VARA, it “should be at a level where scholars agree that it is ‘changing the history of art.’” Cohen et al. v. G. & M. Realty et al., 988 F. Supp. 2d 212, 221 (E.D.N.Y. 2013).

In the Opinion, Judge Block carefully answered the question that he had framed in his earlier opinion denying injunctive relief as being “whether to embrace the strictures of the academic views espoused by the defendants or the more expansive ones suggested by the plaintiffs.” Id. at 226. Specifically, in addressing the evidentiary threshold for “recognized stature” in the more recent Opinion, Judge Block noted the Martin court’s guidance that “expert testimony is not the sine qua non” and the Second Circuit court’s finding (on appeal in the Carter case) that courts must “use common sense and generally accepted standards of the artistic community in determining whether a particular work” qualifies for protection, concluding that “even inferred recognition from a successful career can be considered in determining whether a visual artist’s work has achieved recognized stature.” Opinion at 29 (citing Martin, 861 F. Supp. at 325, and Carter II, 71 F.3d 77, 83 (2d Cir. 1995)). After establishing that the bar to a showing of “recognized stature” should be relatively low, Judge Block noted that the 5Pointz plaintiffs had well surpassed it, having “adduced … a plethora of exhibits and credible testimony.” Id. at 29.

He accordingly found that “almost all of the plaintiffs’ works” thus “easily qualify as works of recognized stature,” as they were carefully selected by Cohen as the site’s curator, executed by artists who “had also achieved artistic recognition” outside of the site, and had been featured in films, television, and other media; in addition, the testimony of Renee Vara, an expert who was “highly regarded” and “highly qualified,” demonstrated that they were executed with “skill and craftsmanship” and had been the subject of “academic and professional interest.” Id. at 29-30. Judge Block also roundly criticized Thompson’s methodology as being “unduly restrictive and almost designed to avoid finding results,” noting that “[i]f not a single one of the[ disputed] works meet[s] the recognized stature standard, it is hard to imagine works that would, short of a Caravaggio or Rembrandt.” Id. at 31-32.

Judge Block’s 5Pointz opinion thus provides a significant correction to the recent jurisprudential trend toward an overly-stringent “recognized stature” analysis. If other courts follow the Eastern District’s lead, an artwork need not satisfy a “masterpiece” standard, and the indicia of community recognition that are becoming more prevalent in today’s digital world, including blog and social media posts, may be relied upon as probative evidence of a work’s stature.

The Opinion also serves as a stern warning to owners of real property onto or into which original works of visual art have been executed or incorporated, as the “wide discretion” afforded to a court in evaluating statutory damages may be used to “discourage wrongful conduct” by others. Opinion at 39-40. Throughout the Opinion, Judge Block noted not only that Wolkoff was “difficult” and “argumentative” as a witness, but more importantly that his destruction of the 5Points murals was “an act of pure pique and revenge,” the “epitome of willfulness,” and “singularly unrepentant.” Id. at 15, 44-45, 48. Wolkoff could have avoided all censure—and any liability under VARA—if he had simply given the artists ninety days’ notice and the opportunity to remove their works.  Because of Wolkoff’s egregious conduct, Judge Block awarded the maximum possible damages, however, “[i]f not for [his] insolence,” such damages “would not have been assessed.” Id. at 49.

Not surprisingly, Wolkoff has indicated that he will appeal the decision. The Opinion, however, sends the clear message that “potential infringers” should not violate VARA believing they may do so “at will and escape liability” due to the statute “hav[ing] no teeth.” Id. at 48. While the “tension” between “conventional notions of property rights” and the artistic rights established by VARA will inevitably continue to be difficult to navigate, the 5Pointz case provides valuable guidance to the relevant stakeholder communities.

 

Megan E. Noh joined Cahill Cossu Noh & Robinson LLP in March 2017, reentering private practice after developing a broad range of expertise over the course of seven years’ combined business and in-house legal experience in the auction world.   Most recently, as Vice President and Senior Counsel for an international auction house, she handled all day-to-day U.S. legal affairs, including drafting and negotiating auction, private treaty, advance loan and other contracts, insurance inquiries and claims resolution, and questions of cultural property and provenance, regulatory and materials compliance.  Prior to her work in the auction sector, Megan practiced at the law firm of Hughes Hubbard & Reed LLP.

Megan’s education includes dual degrees in Studio Art and Government & Politics from the University of Maryland and a J.D. from the University of Pennsylvania.  She is currently Co-Chair of the New York County Lawyers’ Association’s Art Law Committee, a member of the New York City Bar Association’s Art Law Committee, and an Advisory Committee member for the New School’s Vera List Center for Art and Politics, and has spoken on the topics of authentication and pre-transaction diligence to various professional and academic audiences, including the American Society of Appraisers, the New York State Bar Association’s Entertainment, Arts & Sports Law Section, Fordham University School of Law, and U.S. Trust, and at conferences including those organized by the NYU Schools of Law and Professional Studies, the University of Cambridge, and the London School of Economics. Her publications include related articles in the ArtWatch UK Journal and the Institute of Art & Law’s journal, Art Antiquity and Law.

Christopher J. Robinson practices art law and intellectual property law, as well as general commercial litigation.  A former art dealer, he brings a practical knowledge of the art world to his practice of art law. His clients for both litigation and transactional matters include dealers, artists, art advisors, museums, auction houses, appraisers, art foundations, collectors, restorers, developers and publishers.  He is outside legal counsel to the Private Art Dealers Association and the New Art Dealers Alliance, and he has spoken widely on art issues, in particular on stolen art, consignment fraud, forgeries, copyright and moral rights, public art, dealer transactions, and artists’ rights.

Chris also has extensive experience in copyright and gray-market goods enforcement and litigation.  His practice includes trademark, unfair competition and false advertising, as well as libel defense and the first amendment.  He has also represented clients with respect to compliance with sanctions regulations promulgated by the Office of Foreign Assets Control (OFAC).

Chris joined the firm as a partner in 2017.  He started his art career in graduate studies at the Courtauld Institute of Art in London, followed by nearly twenty years as an art dealer in New York, including six years as an independent dealer in old master and nineteenth century drawings.  He received his J.D. from Fordham University School of Law in 2001 where he served as editor in Chief of Law Review.  Chris practiced at Debevoise & Plimpton LLP where he specialized in intellectual property, before moving to Davis Wright Tremaine LLP where he became a partner in 2011.

International Legal Frameworks Supporting Equality of the Sexes

 

 

By Dana E. Heitz, 2017 NYCLA Representative to the United Nations

The international community tackled the issue of Monitoring Legal Frameworks That Address Non-Discrimination on the Basis of Sex at a program co-hosted by the World Bank Group, UN Women, and the OECD Development Centre, held in conjunction with the annual session of the United Nations Commission on the Status of Women in March 2017.  The program featured a detailed discussion of the monitoring framework which these groups established to assess the adequacy of domestic legal institutions in combating gender-based discrimination pursuant to the United Nations’ Sustainable Development Goals (“SDGs”) adopted by the UN General Assembly in 2015.

Significantly, SDG 5.1 aims to “End all forms of discrimination against all women and girls everywhere.” Indicator 5.1.1 is associated with this goal and measures what factors are in place to help a society progress toward the goal, specifically “whether or not legal frameworks are in place to promote, enforce and monitor equality and non-discrimination on the basis of sex.” The program provided an overview of indicator 5.1.1, and the activities and methodology which the monitoring groups used for measurement and evaluation.

Legal systems at the national level are a prerequisite to ending discrimination and promoting equality. Janette Amer, a panelist from UN Women, described the process of measuring these systems. Many countries are already recording useful data as part of their obligations under the UN Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) and the Beijing Platform for action established in 1995. Ms. Amer listed some variables in this data such as differences between national constitutions, definitions of discrimination, government capacity for documenting violence against women, and women’s roles in the workplace and family. After identifying these variables, the next step was to approach groups in each country that represented different stakeholders, and provide a survey of straightforward yes-or-no questions about the extent to which existing frameworks both promote and monitor gender equality. UN Women intended to spend the remainder of 2017 reviewing findings, determining and applying a scoring method, and developing a proposal for further action.

The next two panelists Sarah Iqbal of the World Bank group on Women, Business, and the Law, and Keiko Nowacka of the OECD Development Centre Social Institutions and Gender Index (SIGI), noted that laws distinguishing between men and women have a detrimental impact on women’s well-being across several different areas including women’s incentives and capacity to work and their access to justice. The speakers described the significance of existing World Bank and SIGI data in carrying out this analysis. For example, SIGI developed a dataset to inquire why gaps in women’s labor and education persist even after investing in equality. It measures discrimination in families, women’s physical integrity, access to productive and financial resources, and workplace rights, by studying attitudes, practices, and laws which reinforce discrimination in each of these areas. The economic outcomes emerging from these variables—for example, women’s inequality costs $12 trillion annually in global GDP according to the OECD—provide a useful entry point to discussions with varied stakeholders including potential partners in domestic finance ministries.

Jane Mpagi, of the Ugandan Ministry of Gender, Labour and Social Development, described how the Ugandan government seeks to rely on existing legal frameworks to promote institutional mechanisms aimed at ending discrimination. Despite progressive laws and strategies to build on existing law, the challenges lie in enforcement and implementation. Deeply-embedded sociocultural practices form part of the barrier.  Consequently, Minister Mpagi described the importance of implementing the SDGs at a local level.

The final panelist, Nicole Ameline of the CEDAW Committee, underscored the importance of CEDAW as the only comprehensive, internationally-binding instrument on women’s rights, to which 189 countries have adhered. Given its overview of the broad forms of discrimination against women, the CEDAW Committee has similar significance in promoting constructive dialogues, observations and recommendations in combatting these entrenched forces. Further to this work, the Committee intends to start a pilot program monitoring legal frameworks under 5.1.1. As Ms. Ameline noted, the world needs better efforts to implement CEDAW and increase the visibility of its obligations, and women must be on the front lines of this process.

As a legal organization, NYCLA has the opportunity to assess how strategies similar to these are required and implemented at the state and local levels. The methods of monitoring and evaluation which this program covered could provide a valuable model for organizations like NYCLA investigating legal institutions in similar or different contexts.  NYCLA should consider this assessment of legal frameworks as a potentially useful resource, whether for direct action or to guide future projects.

Dana E. Heitz is an appellate and motions attorney who holds an M.A. in International Affairs from The New School.  She practices at Heitz Legal, P.C. and can be reached at dana@heitzlegal.com.

 

 

NYCLA Celebrates Outstanding Women in the Legal Profession at 103rd Annual Dinner

Do you think that a bar association annual dinner could be so thought-provoking and memorable that it will be talked about for months to come and so much fun that the entire audience left smiling?  If you don’t, you didn’t attend the New York County Lawyers Association’s 103^rd Annual Dinner on December 11, 2017 at the Grand Hyatt New York which was attended by a crowd of more than 1,000 people and was chaired by Robert L. Haig of Kelley Drye & Warren LLP.  The event celebrated “Outstanding Women in the Legal Profession” and observed the 100^th Anniversary of Women’s Suffrage in New York.

The evening began with a procession of 54 outstanding women Judges, General Counsels, law firm partners, and others who NYCLA honored at the Dinner.  The procession entered the Empire Ballroom of the Grand Hyatt accompanied by a high volume rendition of Helen Reddy’s “I am Women” and led by a performance actress portraying the famous women’s rights activist Susan B. Anthony.  Attorney General Eric T. Schneiderman provided greetings and the audience saw a video from Dinner Honorary Co-Chair Hillary Rodman Clinton (the other Honorary Co-Chair was Senator Kirsten E. Gillibrand).

Former Chief Judge Jonathan Lippman presented the 2017 William Nelson Cromwell Award to the Honorable Janet M. DiFiore, Chief Judge of the State of New York, and the Honorable Colleen McMahon, Chief Judge of the United States District Court for the Southern District of New York. The 2017 Boris Kostelanetz President’s Medal was presented to Eugene P. Souther, Senior Counsel, Seward & Kissel LLP and NYCLA Past President.
 Speeches from the Annual Dinner are available to view here.

One of the many highlights of the evening was the impassioned speech which Chief Judge Colleen McMahon presented on accepting the Cromwell Award.  The New York Law Journal published the entire speech on December 13, 2017 and it has provoked many discussions throughout the New York legal community.  In her speech, Chief Judge McMahon urged men and women to ensure that the current sexual harassment scandals do not lead to a different type of discrimination against women:  treating women and men differently at work in any respect.

Another highlight throughout the evening was provided by the actress portraying Susan B. Anthony who mingled with the crowd during the reception and presented excerpts from Miss Anthony’s most famous speech during the Dinner.

Thank you to all of our volunteers, guests, Board of Directors and sponsors who helped make the night such a success!

Please click on the images below to view our photo gallery of the evening for more pictures of the event please visit the NYCLA on Instragram @nycountylawyers  additional photos will be posted soon:

Processional of Honorees

Sophia Gianacoplos, Executive Director of NYCLA & Susan B. Anthony

Robert L. Haig, Annual Dinner Chair and Fmr. Chief Judge Jonathan Lippman

Outstanding Women in the Legal Profession Annual Dinner Honorees and Attorney General Eric T. Schneiderman

NON-COMPETE AGREEMENTS UNDER NEW YORK LAW

Many employers try to limit former employees’ actions at the conclusion of the employment relationship through restrictive covenants. A restrictive covenant is a contractual agreement restricting the post-employment activities of a former employee for a fixed period after the termination of an employment relationship in order to protect the employer’s legitimate business interests.

A. Protectable Interests

Non-compete agreements offer the widest range of protection for employers by limiting a prior employee’s ability to work for a competitor after the employment relationship ends. However, this type of restrictive covenant is often the most difficult to enforce and is generally disfavored in New York. New York courts will enforce non-compete provisions only to the extent necessary to protect an employer’s legitimate interests and where they are reasonable in time and geographic area. Such courts consider the protection of the following kinds of information to be legitimate protectable interests:

1) trade secrets;

2) confidential customer relationships; and

3) confidential customer information.

For example, in Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 71 (2d Cir. 1999), the court noted that an employer has sufficient interest in retaining its current customers to support a covenant not to compete where the employee’s relationship with the customers is such that there is a substantial risk that the employee may be able to divert all or part of the business.

B. Temporal and Geographic Restrictions

New York courts have repeatedly held that temporal restrictions of six months or less are reasonable. See Ticor Title Ins. Co. v. Cohen, 173 F.3d at 70 (2d Cir. 1999); Natsource LLC, 151 F.Supp.2d at 470-71 (three-month non-compete). However, courts have also enforced non-competes of three years or more, usually where geography is limited. In Novendstern v. Mount Kisco Med. Grp., 177 A.D.2d 623, 576 N.Y.S.2d 329 (1991), the court found that a covenant restricting a physician from competing with his previous employer was enforceable because the prohibition on the physician’s practicing in his specialties for three years was in a limited geographic area.

To determine whether a non-compete provision is reasonable in geographic scope, courts in New York examine the particular facts and circumstances of each case. For example, in Natsource LLC v. Paribello, 151 F.Supp.2d 465, 471-72 (S.D.N.Y.2001), the court was willing to enforce very broad geographic restrictions on employees where the “nature of the business requires that the restriction be unlimited in geographic scope,” so long as the duration of those restrictions was short. (Emphasis added). However, in Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 813 F. Supp. 2d 489 (S.D.N.Y. 2011), the court held that the non-compete provision in a fitness center operator’s employment agreement with prior employees, which prohibited employees from working at a competitor center anywhere in world for ten years following employment at center, was unenforceable since it was unreasonable in terms of duration and geographic scope.

C. Consideration

New York courts have also examined whether there was sufficient consideration, whether the agreement was incidental to the sale of a business, and whether an employee was preparing to compete to determine if a non-compete was reasonable. Such courts have found that future employment constitutes sufficient consideration to support a covenant not to compete.See Poller v. BioScrip, Inc., 974 F. Supp. 2d 204 (S.D.N.Y. 2013) (holding that “the fact that a restrictive covenant agreement is a condition of future employment does not automatically render such an agreement coercive and unenforceable”). Similarly, in Ikon Office Solutions v. Leichtnam, 2003 U.S. Dist. LEXIS 1469, *1, 2003 WL 251954 (W.D.N.Y. Jan. 3, 2003), the court found that the non-compete covenant was enforceable because the employee was an at-will employee who received continued employment as consideration. Moreover, financial benefits and an employee’s receipt of intangibles such as knowledge, skill, or professional status, are also sufficient consideration to support a non-compete provision under New York law. See Arthur Young & Co. v. Galasso, 142 Misc. 2d 738, 741 (Sup. Ct. N.Y. County 1989).

D. Selling a Business and Preparing to Compete

New York courts are most likely to enforce non-compete agreements that are incidental to the sale of business. See Mohawk Maint. Co. v. Kessler, 52 N.Y.2d 276 (1981) (stating that courts give covenants not to compete made in connection with the sale of a business and its accompanying goodwill “full effect when they are not unduly burdensome”).

New York courts have held that an employee preparing to compete violates a non-compete provision where affirmative steps have been taken that would give the individual a head start on competing once the restricted period ends. For example, in World Auto Parts, Inc. v. Labenski, 217 A.D.2d 940 (4th Dep’t 1995), the court found that conduct such as making personal loans to the principal owners of competitors and divulging to competitors price information acquired while working with the former employer constituted preparatory behavior that violated the non-compete agreement. However, in some instances, employees may prepare to compete prior to their departure provided that they do not use their employers’ time, facilities or proprietary secrets to do so. See Stork H & E Turbo Blading, Inc. v. Berry, 932 N.Y.S.2d 763 (2011).

Richard Friedman is a former AMLAW 100 employment and business litigation partner and an experienced trial lawyer.  He counsels employers on all kinds of employment-related matters and assists them and individuals aligned with employers in litigation through his five lawyer firm, Richard Friedman PLLC. Mr. Friedman also assists senior and mid-level executives with employment, severance, and consulting agreements and represents well compensated employees in FINRA arbitrations.  Mr. Friedman 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.  Mr. Friedman can be reached at rfriedman@RichardFriedmanlaw.com.  His complete biography is available at www.richardfriedmanlaw.com.

NYCLA Announces the Formation of The Center for Corporate Governance at the New York County Lawyers Association

NYCLA is pleased to announce the formation of The Center for Corporate Governance, 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. The principles of corporate governance are evolving and in recent years quite quickly. Officers and board members need to be aware of their responsibilities and duties as the legal and practical landscape of what is acceptable and unacceptable conduct for boards and officers changes.

Many legal practitioners have clients who are among those who have such duties and responsibilities and counsel must continue to educate themselves to be able to advise those clients. The Center for Corporate Governance and NYCLA have decided it is important for them to play a key role in this process not only with their members, but also in the legal community in the greater New York area.

While The Center and NYCLA recognize that there are other outstanding organizations playing a role in bettering Corporate Governance, we intend to work with a number of them to advance the goal of increasing the understanding of good Corporate Governance. The process of coordinating with various groups including universities, industry groups, foundations, and non-profit and for profit entities has already begun.

The initial focus of the Center will be on CLE programs, with a great inaugural program held on May 3, The Significance of Recent Developments in Delaware Corporate Governance Law and What Practitioners and Their Clients Need to Know. As time goes on, however, the Center also expects to expand to other forms of education as well.

For more information please contact Greg Markel, Senior Counsel, Cadwalader, and Chairman of the Center for Corporate Governance at the New York County Lawyers Association. Mr. Markel can be reached at greg.markel@cwt.com .

New York County Lawyers LGBT Committee sends letter to Lt. Gov. Spencer Cox of Utah commending his remarks on inclusion of the LGBT community

Letter submitted by the Lesbian/Gay/Bisexual/Transgender Issues Committee to Lt. Gov. Spencer Cox at the Utah State Capitol Complex

Lt. Gov. Cox,

I am writing to you on behalf of the New York County Lawyers Association’s Lesbian Gay Bisexual Transgender Issues Committee, to commend you on your remarks delivered Monday, June 13, 2016, on the grounds of the Salt Lake City and County Building.

When our Association was founded in 1908, the only existing bar association in Manhattan, New York, precluded some lawyers from membership by virtue of ethnicity, religion, gender and race. Although other factors contributed to the atmosphere that produced our new association, none was as strong as “selective membership” in other bar associations. Not only were large groups of lawyers denied affiliation with a bar association, but independent perspectives on the judicial system were also curtailed. Throughout its history, one of the Association’s bedrock principles has been inclusion. With that in mind, our membership applies its knowledge and experience in the field of law to the promotion of the public good and ensuring access to justice for all. We have been at the forefront of most legal debates in the country.

For instance, the Association’s groundbreaking 1952 report on public apathy toward delinquent children brought wide acclaim and won the endorsement of Mayor Robert F. Wagner. In 1943, the Association refused to renew its affiliation with the American Bar Association for its refusal to admit Black lawyers. In 1949, we sponsored a conference on civil rights in the post-World-War-II era. Our Women’s Rights

Committee challenged and helped change provisions of the Internal Revenue Code that had a discriminatory impact on women and married couples.

Your June 13, 2016 remarks were amazing and heartfelt. Moreover, your remarks transcended partisan politics and addressed the issues missing from public discourse, which are dignity and respect for all. As a society, we are at “the crossroads of hate” and must come together and not retreat to “over-worn policy corners and demagoguery.”

We applaud you on your invitation to the citizens of the great state of Utah to be kind, brave, and to “lead the nation with love in the face of adversity.” We are with the citizens of Utah.

On behalf of all LGBT Americans, we invite you to continue your efforts to promote inclusion of the LGBT community in Utah’s legal discourse.

Very truly yours,
George M. Santana, Esq.
Chair

 

1st Place Winning Essay by Cindy Dias – William Cullen Bryant High School 22nd NYC PUBLIC HIGH SCHOOL ESSAY CONTEST 2016

Immigration reforms have been recognized as a national issue and played a crucial role into the history of the United States of America. Immigration has been a relentless source of economic strength and demographic vitality throughout our nation’s history and foundation. Most or all native born Americans today come from an ancestry of immigrants that moved to the United States. The roots of this country is solely based on people moving from other nations to make the United States what it is today, if we didn’t have immigrants coming in during the homestead act, the Midwestern region of the United States would still be vacant. In the presidential election of 2016, immigration has been one of the major issues the candidates address throughout their campaign. Some want to build a wall to stop illegal or undocumented immigrants from coming in, whereas some want to issue legislation to encourage a greater diversity. Democratic candidate Sen. Bernie Sanders believes that a pathway for citizenship should be established for the 11 million undocumented working immigrants. Whereas Republican candidate Sen. Ted Cruz believes that a hierarchy should be established between the American born and the legal immigrant in employment and end birthright immigration.

Senator Bernie Sanders believes in “A Fair and Humane immigration Policy” according to his campaign and further acknowledges the United States as being the “Nation of Immigrants”. Sen. Sanders established the facts that the current American immigration policies are corrupt and broken, and hopes to introduce a new system which offers a great diversity and economic opportunities for not only the 11 million undocumented immigrants in the country but also serves as an invitation for incoming immigrants from other countries. In 2007 when Sanders voted against the immigration reform, it was perceived as a contradiction to his current stance, however when defending his decision, he presented the argument that the guest workers coming in and had to work in terrible conditions which according to the Southern Poverty Law Center was “semi slavery” and thus seemed inhumane for him to vote for an exploitation like this. Being the son of an immigrant himself, Sanders is an advocate of immigration reform for the better of the country.

Agreeing with fellow Republican candidate Donald Trump, Sen. Ted Cruz believes that a ‘wall’ should be built along the southern border of the United States and increase border patrol to ensure security from illegal immigrants. Along with plans for several halts in the immigration process like ending birth right citizenship and prohibiting illegal immigrants from gaining government aid, Sen. Cruz believes that legal working immigrants should not be replacing jobs of American workers. On his campaign website it is stated that “The purpose of legal immigration should be to grow the economy, not to displace American workers. Under no circumstances should legal immigration levels be adjusted upwards so long as work-force participation rates remain below historical averages. To further stop immigrants from ‘taking over American jobs’, he plans on suspending the H-1B visa, which allows immigrants to enter the United States, for 180 to investigate abuse.

Being the child of an immigrant the topic of immigration plays a very pivotal role in my life. The foundation of this nation was based on immigrants who started with people moving from England to establish the Jamestown and the New England Colony to the millions crossing Ellis Island in the late 1800’s to populate the then vacant America. Sen. Ted Cruz believes that immigrants should not be stealing the jobs of Americans, firstly under the 14^th Amendment, where it is stated that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…” it will be unconstitutional for legal immigrants to be denied a fair chance in employment, secondly immigrants from other culture or countries bring a skill set that might not be familiar to a native born American which leads to job opening for many. According to the Huffington Post, a study in June 2012 found that 18% of all small business owners are all U.S. immigrants when they only make up 16% of civil labor forces and is only 13% of the population. Furthermore, these businesses employ up to 4.7 million Americans. Sanders proposal for “A Faire and humane immigration policy” is plausible, I believe that the 11 million hardworking undocumented immigrants should be getting benefits that a native born American are granted with. Sanders believes that immigrants are valuable for the country’s benefits and should be appreciated. Illegal immigrants make up about 5.2% of the total U.S. labor force and in states like Texas without undocumented workers the labor forces would decrease of 6.3%. Half the hired workers employed under the department of agriculture are undocumented immigrants, which only prove the pivotal role they play in the U.S. economy today. Politicians today do not take their time to analyze such statistics or data and jump into making irrational decisions or proposals that could potentially harm the country.

 

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