Zarda is Out: En Banc Second Circuit Holds Sexual Orientation Discrimination is Protected by Title VII

This is the decision that so many have been waiting for. In a historic ruling in Zarda v Altitude Express, the Second Circuit today overruled its’ prior precedent in Simonton v. Runyon, and held that sexual orientation discrimination is discrimination because of sex that finds protection under Title VII.

The comprehensive opinion the majority of the Second Circuit held that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination” (Opn, at 20-21). Looking to the text of Title VII, the majority concluded that Title VII’s protection against discrimination “because of . . . sex” extends to sexual orientation because “sex is necessarily a factor in sexual orientation” (Opn, at 21). Leading with the Black’s Law Dictionary definition of sexual orientation—”[a] person’s predisposition or inclination toward sexual activity or behavior with other males or females”—the Court noted that a person’s sexual orientation can’t be identified unless that person’s sex is known as well as the sex of those to whom the person is attracted. As the majority put it,

Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.

Taking apart the argument that firing an employee for his or her sexual orientation is not firing them because of their gender, the majority held that “this semantic sleight of hand is not a defense; it is a distraction” (Opn, at 23-24). The failure to reference the employee’s gender doesn’t change the fact that “firing a man because he is attracted to men is a decision motivated, at least in part, by sex” (Opn, at 24). Merely using different terminology to achieve the same discriminatory result, the majority held, doesn’t fly under Title VII.

The Court also held that Congress’ failure to protect expressly sexual orientation under Title VII doesn’t undermine the conclusion that the broad language that Congress did use was intended to protect not only the “principal evil,” but also “comparable evils” (Opn, at 27).  Thus, the majority reasoned, the protections afforded to employees against discrimination because of their “sex” was not meant to be exclusive, and necessarily includes protection for sexual orientation too.

This conclusion, the Court held, is also supported by the Supreme Court’s “comparative test” for when an employment practice constitutes sex discrimination. Using the en banc Seventh Circuit’s decision in Hively v Ivy Tech Community College as a salient example, the majority explained if a female employee who is attracted to females is denied a promotion when a male employee also attracted to females is given the promotion, the denial of the promotion (all other things being equal, of course) is because of the female employee’s sex. Thus, it is clear, the majority held, that sexual orientation discrimination is just a subset of sex discrimination and is protected under Title VII.

Having addressed the proper application of the comparative test, we conclude that the law is clear: To determine whether a trait operates as a proxy for sex, we ask whether the employee would have been treated differently “but for” his or her sex. In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women. We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.

The gender stereotyping theory provided yet another basis to conclude that sexual orientation discrimination is discrimination because of sex, the majority held. When an employer discriminates because it believes that a man cannot, or should not, be attracted to men, but doesn’t discriminate when women are similarly attracted to men, the employer acts on the basis of the employee’s gender. That is clearly protected by Title VII. Thus, the Court explained, the prior framework under Simonton trying to distinguish when a discrimination claim is impermissibly based on sex stereotyping or when it is (formerly) permissible sexual orientation discrimination no longer worked.  The lower courts struggled with the distinction, the majority held, and no basis remained to keep it.

It is also unlawful associational discrimination for an employer to discriminate based on an employee’s romantic association with a partner of the same sex, the majority held.  Harkening back to the Supreme Court’s decision in Loving v Virginia, the majority explained that “policies that distinguish according to protected characteristics cannot be saved by equal application” (Opn, at 54) and so whether an employer adversely treats both men and women for same sex association is no defense to a claim of discrimination under Title VII. Indeed, discrimination based on sexual orientation, the majority held, “is no less repugnant to Title VII than anti-miscegenation policies” (Opn, at 59).

The Second Circuit has now joined the Seventh Circuit in Hively, holding that sexual orientation discrimination is protected under Title VII. This is a huge decision, and one that has been long awaited by LGBT rights advocates. But, it is certainly not the end.  The Eleventh Circuit has declined to agree. And Zarda may well be poised to head up to the Supreme Court, where it faces an uncertain reception. This decision of the en banc Second Circuit, though, to overrule its prior precedent and recognize that no one should be discriminated against on the basis of their sexual orientation or any other protected characteristic is a monumental one.

The Second Circuit’s en banc opinion can be found here.

Court of Appeals: Indenture Trustee Can Bring Third Party Actions to Recover for Fraudulent Redemption of Assets Rendering Debtor Insolvent

Financial fraud is complex. The schemes cooked up by fraudsters are intricate, and the financial maneuvers used are often difficult to follow. The fraud alleged in Cortlandt Street Recovery Corp. v Bonderman (No. 14) is no different.

Breaking it down to the extent I can, a number of private equity investors were interested in acquiring a profitable and debt-free telecom company in Greece, and set up a group of shell companies in Luxembourg to make the buy. The group, called Hellas Group, borrowed heavily (about €1.6 billion) to buy the Greek company, and had very little equity to repay the loans. In another round of borrowing in 2006, Hellas Finance (a subsidiary of Hellas Group) borrowed €200 million in exchange for payment-in-kind notes, which were governed by the indenture that is the focus of this case.

What’s an indenture? An indenture is a legal agreement that vests title of securities, like the payment-in-kind notes here, in a single trustee who is given certain specified powers to act on behalf of all of the noteholders. It’s usually tough to get all noteholders who may have different interests to act collectively, so the appointment of the indenture trustee to act on their collective behalf helps to solve that problem. Generally included in the bundle of rights given to the indenture trustee, which are limited to what’s in the agreement, is the right to bring suit to recover the principal, interest, costs, and fees in the event that the investment tanks and the debtor defaults.

In Cortlandt Street Recovery Corp., at the same time that Hellas Finance issued the payment-in-kind notes, Hellas the parent redeemed €973.7 million in convertible preferred equity certificates, and paid the cash to the private equity investors. For a more in depth look at the Hellas investments, read this Economist piece. When the global financial crisis hit, Hellas Finance defaulted on the payment-in-kind notes, as did another Hellas subsidiary that had guaranteed the notes.

The  indenture trustee, on behalf of all of the noteholders, brought an action to recover the €200 million and interest from Hellas, a number of the Hellas subsidiaries, and the private equity investors, alleging that the convertible preferred equity certificate redemptions were fraudulently intended to render Hellas Finance, the primary debtor, insolvent. Even though the private equity investors weren’t parties to the payment-in-kind notes, the indenture trustee alleged claims against them for breach of contract, fraudulent conveyances, unlawful corporate distribution, and unjust enrichment, and sought to pierce the corporate veil on an alter ego theory.

The private equity investors moved to dismiss, and Supreme Court granted the motion. The Court held that the indenture that specified the indenture trustee’s powers and rights did not allow it to sue for recovery for the alleged fraud. The Court also dismissed the alter ego claims.

The Appellate Division, First Department modified the order on appeal, and reinstated the indenture trustee’s claims against the private equity investors. The Court held, the indenture governing recovery for default under the payment-in-kind notes “confers standing on the trustee to pursue . . . the fraudulent conveyance and other . . . claims, which seek recovery solely of the amounts due under the notes, for the benefit of all noteholders on a pro rata basis, as a remedy for an alleged injury suffered ratably by all noteholders by reason of their status as note holders” (Cortlandt St. Recovery Corp. v Hellas Telecommunications, S.à.r.l., 142 AD3d 833, 833-834 [1st Dept 2016]). The Appellate Division also reinstated the alter ego theory claims, and then granted leave to the Court of Appeals.

Because the right of the indenture trustee to bring suit is defined by the indenture agreement, the Court of Appeals began its analysis with normal principles of contract law. A contract means what its unambiguous words say. The contract’s language has to be read in context of the obligations. And a court can’t read any language of an agreement to be meaningless. In this case, the indenture agreement provided:

If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

That’s pretty clear, the Court held.  “[A]ny available remedy” means any remedy at law or in equity. “The plain meaning of section 6.03, then, is to authorize a trustee to pursue any lawful means of enforcing the noteholders’ rights, against any individual or entity, based on any viable theory of recovery in order to secure repayment upon the event of a default on the debt to noteholders” (Opn, at 10).

In the context of this case, that means that the indenture trustee isn’t just limited to asserting claims against Hellas Finance, as the debtor, or the Hellas subsidiary, as the guarantor. It can go after the private equity investors too, as long as the recovery it is seeking is for the principal, interest, and related costs of the payment-in-kind notes on behalf of all of the noteholders.

The Court, in dicta, also noted that its plain meaning interpretation of the indenture was consistent with the interpretation of the virtually identical language of the Revised Model Simplified Indenture, and the related commentary by the American Bar Association. The model indenture, the Court noted, appears to have been the form for the indenture in this case, and so the parties surely would have expected the two to have been given the same construction.

The Court was careful to caution, however, that this interpretation of the indenture only holds for post-agreement fraud, like the one alleged here. For fraudulent inducement claims based on pre-indenture misrepresentations, the interpretation is different. In that kind of case, the “any available remedy” language does not give the indenture trustee any right to bring claims for violations of the federal or state securities laws, primarily because the individual noteholders likely will be in different positions, which could create conflicts for the trustee, and can bring their own claims.

Like the Appellate Division, the Court of Appeals too agreed that the indenture trustee had validly stated alter ego theories against the private equity investors. Whether the trustee can make out that case, however, is a different question for a different day.

The case will now proceed back in the trial court, with the indenture trustee trying to show that this all was just a massive fraud to line the private equity investors’ pockets, and the investors arguing that these were legitimate recapitalization efforts that just didn’t end up working out. I’ll leave it to the financial investment experts to guess how that’s going to come out.

The Court of Appeals’ opinion can be found here.


Plurality of Court of Appeals Holds Party Barred from Asserting a Federal Compulsory Counterclaim in a Subsequent State Court Suit

A case about movie investments is the latest that has closely divided the Court of Appeals. Actually, the issue before the Court had absolutely nothing to do with the movie or the lost investment. Instead, it’s the kind of issue that sparks interest in the community of appellate lawyers who look at how the courts work—whether res judicata principles bar assertion of a federal compulsory counterclaim in a later state court action when it wasn’t brought in an earlier federal suit on similar facts. Fascinating, I know.

In Paramount Pictures Corporation v Allianz Risk Transfer AG (No. 16), Allianz invested in a Paramount film, but agreed to waive any claims against Paramount and not to sue if the investment went south. The investment tanked, and Allianz sued Paramount in federal court anyway, notwithstanding the waiver of claims and bar to lawsuits. Paramount defended the litigation based on the waiver provision, but never raised the covenant not to sue as an affirmative defense or pleaded Allianz’s breach of it as a counterclaim in the federal suit.

After the federal court predictably dismissed the case because of the waiver provision, Paramount brought this breach of contract suit in state court based Allianz’s breach of the covenant not to sue. Allianz moved to dismiss, arguing that res judicata barred Paramount’s breach of contract claim because it was a mandatory counterclaim that was never asserted in the federal suit and was barred by Rule 13(a) of the Federal Rules of Civil Procedure.

Rule 13(a) requires any party to a suit to assert any mandatory counterclaims that it has in that litigation or else they will later be barred from doing so. That rule has never before applied to New York litigation. Instead, New York is a permissive counterclaim jurisdiction, where a defendant to a New York litigation has no obligation to assert any counterclaims, but can wait to assert its own claims in a separate later action.

Recognizing that New York hasn’t subscribed to Rule 13(a)’s mandatory counterclaim rule, Supreme Court denied the motion to dismiss, citing New York’s permissive counterclaims rule under CPLR 3011. To adopt the federal rule, the Court held, would conflict with New York’s rule.

The Appellate Division, First Department, however, reversed and dismissed the suit. The Court held that Rule 13(a) should be applied in state court litigation, and Paramount’s breach of contract claim was thus barred by res judicata for failure to assert it as a mandatory counterclaim in the federal suit.

A plurality of the Court of Appeals affirmed, in a closely split decision. Three judges joined the plurality opinion (Judges Garcia, Stein, and Fahey), two concurred in the judgment only but for different reasons (Judge Rivera and Chief Judge DiFiore), and one dissented (Judge Wilson). What really split the Court was whether it should even be deciding whether to apply federal res judicata precedent to decide whether Paramount’s breach of contract claim should be barred in state litigation.

Judge Garcia, writing for the plurality, began with the principle that the US Supreme Court has the last word on the preclusive effect of federal judgments. And because federal judgments flow from federal courts exercising different types of jurisdiction—generally either federal question or diversity—the federal rules of preclusion are different for each. For a federal judgment based on federal question jurisdiction alone, the Supreme Court has held, federal res judicata principles apply. For diversity jurisdiction cases, state preclusion rules apply.

But what about so-called mixed jurisdiction cases, where both federal question claims and diversity claims are determined in a case? As Judge Garcia pointed out, “[t]he Supreme Court has not squarely addressed the applicable federally prescribed rule of decision – the uniform federal rules or state preclusion law – in a case where, as here, the judgment in the parties’ federal action encompassed both federal- and state-law claims” (Plurality Opn, at 6). Whether the Court of Appeals should answer that open question of federal law on its own split the Court.

Judge Garcia and the plurality decided it should, and held that federal law applied because applying state law to a mixed jurisdiction case would be contrary to “federal interests” (Plurality Opn, at 7). Judge Garcia explained,

That made a state law res judicata analysis unnecessary to decide whether Paramount’s claim should be barred in the state litigation, the plurality held.

Under federal claim preclusion principles, which look at whether the two claims arise from the same transaction or series of transactions, whether the same evidence is needed for both, whether the facts needed for the second claim were also presented in the first, the plurality held that Paramount’s claim was barred. The investors’ claims in the federal suit and Paramount’s counterclaim were too related not the be tried together. Paramount’s failure to assert the counterclaim in that prior action, thus, barred it from bringing a later state court action to enforce the covenant not to sue.

Judge Rivera and the Chief Judge disagreed with the plurality’s decision to reach the unsettled question of the preclusive effect of the federal judgment in a mixed jurisdiction case. In fact, they argued, the question need not have been answered at all because Paramount’s claims were barred regardless of which res judicata principles applied. As the plurality agreed, Paramount’s claim for breach of the covenant not to sue arose out of the same series of transactions as Allianz’s claims in the federal action, and thus were barred because Paramount did not assert its claim when it had the chance to do so. Judge Rivera criticized the plurality for going too far in what essentially amounted to a mistaken advisory opinion.

Judge Wilson, dissenting, disagreed with both and argued that the Supreme Court, had it addressed the issue of the preclusive effect of a federal judgment in a mixed jurisdiction case, would have parsed the claims based on their jurisdictional predicate. Paramount’s breach of contract counterclaim is a state law claim over which the federal district court had diversity jurisdiction, he argued. So the Supreme Court’s precedent would require application of state res judicata principles, and state law would not bar Paramount’s claim here.

Judge Wilson also argued that the plurality had fundamentally confused FRCP Rule 13(a) with federal res judicata principles as if the two were synonymous. They are not, Judge Wilson noted.

Further, Judge Wilson contended, Rule 13(a)’s compulsory counterclaim rule is a policy choice to protect the federal courts from repeated litigations over the same subject. But that policy doesn’t come into play when the counterclaim is later asserted in state court. It is the state courts, not the federal ones, that would be burdened. And New York’s permissive counterclaim rule is a different policy choice. Indeed, as a Judge Wilson put it, “[i]t would be quite strange, though, for the federal court to ‘extend’ the preclusive effect of its judgment to a subsequent claim, arising from the same transaction or occurrence, brought by a defendant seeking to litigate a state law claim and have his or her own day in state court, where the state has made the choice to allow a defendant that option. Unless a judgment on the separately-filed claim would nullify or undermine the federal judgment, federal courts have neither a res judicata interest nor an efficiency interest in that outcome” (Dissenting Opn, at 14).

I tend to agree with Judge Wilson that the plurality’s approach, effectively applying Rule 13(a) in New York based on federal res judicata principles, ignores the unique jurisdictional based on which state law claims can be heard in federal courts, and then what procedural rules apply to those claims. Although I won’t go so far as to guess how the Supreme Court would answer this unsettled question, I think Judge Wilson’s detailed approach makes sense. State law claims litigated in federal court don’t become any less state law claims merely because they are pleaded together with federal question claims. So, state law procedural rules and res judicata principles should apply when a later state court suit is brought to prosecute a cause of action that could have been asserted in the prior federal action. In that case, New York’s policy choice to allow counterclaims to be litigated separately should rule the day, not federal procedural policies. Nevertheless, the plurality’s approach is now the law of New York. Parties beware.

The Court of Appeals’ opinion can be found here.

Second Department Joins the Third Department in Applying the Child of the Marriage Presumption to Same Sex Spouses

It was only a few weeks ago that the Third Department held, for the first time in New York, that a married same sex couple is entitled to the presumption that a child born during their marriage is a child of the marriage. Now, the Second Department has agreed.

In Matter of Joseph O. v Danielle B., the Second Department faced the same situation that the Third Department addressed in Matter of Christopher YY. v Jessica ZZ. Joseph O. sought to establish his paternity to a child born to Danielle and her wife, Joynell, by artificial insemination using Joseph’s sperm. Like in Christopher YY., Joseph expressly waived any right to seek to establish parental rights or visitation, yet went back on the deal and petitioned Family Court to be declared the child’s father and for visitation.

Danielle and Joynell moved to dismiss the paternity and visitation petitions, arguing that they, as married spouses, were entitled to the presumption of legitimacy, that their child born via artificial insemination was a child of their marriage.  But Family Court held that Joseph had shown enough proof that he was the child’s father that the burden shifted to Danielle and Joynell to show it was not in the best interests of the child to do paternity testing or to declare Joseph the child’s father. Family Court also held that questions of fact existed whether equitable estoppel should bar Joseph from asserting paternity because Danielle and Joynell had permitted him to visit the child three or four times per year.

On appeal, the Second Department began its opinion discussing the irrebuttable statutory presumption of legitimacy that Domestic Relations Law § 73 attaches when a couple has a doctor perform the artificial insemination. Because that wasn’t the case here, the Court held that Danielle and Joynell weren’t entitled to the statute’s irreuttable presumption and couldn’t establish their parentage under section 73. That, however, wasn’t the end of the inquiry. The Court held instead, “Domestic Relations Law § 73 was not intended to be the exclusive means to establish the parentage of a child born through artificial insemination of a donor.”

Turning then to the common law presumption of legitimacy, and relying heavily on the Third Department’s decision in Christopher YY., the Second Department too held that Danielle and Joynell were entitled to the rebuttable presumption that the child born during their marriage was legitimate. Although the Court declined to prescribe what proof would be necessary to rebut the presumption, much like the Third Department did, the Court held that the paternity petition should be dismissed based on equitable estoppel. Joseph agreed to give up his rights, didn’t establish a parenting relationship with the child, and his few visits over 3 years didn’t undermine Danielle’s and Joynell’s parental roles. So, the Court held, Joseph can’t now assert that he is the child’s parent.

Like Christopher YY., this is a significant win for LGBT rights, especially in the important Family Law arena. What’s more, because the Second and Third Departments now agree that the child of the marriage presumption applies to married same sex couples, it’s even less likely that the Court of Appeals will need to address this issue. Because of an old New York rule that makes an Appellate Division decision binding statewide—not just in the Department in which the trial courts sit—until a conflict among the Departments emerges, the now settled Appellate Division precedent already applies throughout the State and is binding in all Family Court proceedings. Unless the Court of Appeals is keen to take on the issue simply to affirm the settled Appellate Division rule, which I think it would given Judge Abdus-Salaam’s monumental decision in Matter of Brooke S.B. v Elizabeth A.C.C., it would take either the First or Fourth Departments disagreeing and creating a conflict for the Court of Appeals to weigh in.

The law in New York now stands firm: same sex couples have the same right to a presumption that their children are legitimate that opposite sex couples always had. And that’s the way it should be.

The Appellate Division, Second Department’s decision can be found here.

Appellate Division E-Filing Begins March 1, 2018 with Brand New Uniform Rules

Just a few weeks ago, Chief Judge Janet DiFiore announced in her State of Our Judiciary speech that e-filing appeals in the Appellate Division would begin on March 1st. After the Office of Court Administration sought comments on proposed e-filing rules last summer, we knew that e-filing would soon begin. But the official date hadn’t yet been announced. Now, we know. As Chief Judge DiFiore explained, the courts took the bar’s comments to heart and made many changes to the final e-filing rules, which apply uniformly to all four Appellate Division departments. Here are the highlights of how the system will work.

First, this isn’t a full roll out of e-filing in every appeal. To begin on March 1, only limited kinds of cases will have to be e-filed, and they will vary by the Appellate Division Department.

As the e-filing system gets underway, and the Appellate Division works out any kinks, the list of cases will grow. Hopefully, it won’t be long before all appeals will be e-filed.

If you have a new appeal after March 1st (and your case falls within the list of selected cases), how have the appellate rules and procedures changed? First, after you file your notice of appeal, and the Appellate Division receives it, the Court will issue a Notice of Appellate Case or Docket Number. Counsel for the appellant must then file electronically a notice of appearance and, within 7 days, serve a copy of the notice on all other parties and file proof of the service. That’s an entirely new requirement.

Other counsel must then also appear on the electronic docket within 20 days after service of the Notice of Appellate Case or Docket Number, after which all briefs, records, appendices, and other documents would be deemed served when filed electronically.

Recognizing the reality that many attorneys use appellate printers to put together and file their briefs, and likely not wanting to put the appellate printing industry out of business in the state courts, the rules allow for the attorneys to designate a filing agent who may file on his or her client’s behalf. The attorney, however, is the one who remains on the hook for what is filed and ensuring that all deadlines are met.

Although some pro se parties have been previously excluded from e-filing, the new rules will allow a pro se party to choose to participate and e-file his or her brief using the same conventions as counseled parties.

And what are those conventions? Well, if you haven’t learned how to bookmark your PDF briefs and records on appeal yet, now is the time to learn because that’s what the rules require. Briefs must be filed in PDF/A format with the tables of contents of briefs and records linked to the corresponding pages inside. Never done it before? A few helpful resources can be found here (Adobe, Nuance). Also, if the record volumes get too big, they should be split into multiple documents and e-filed separately to ensure they aren’t rejected as exceeding the 100 MB maximum file size.

The new Appellate Division e-filing rules don’t entirely eliminate the need to file hard copies of your brief and record with the Court. But the total number has been reduced to an original and five copies. So, some paper will be saved, but not a ton.

Also, you don’t have to file the hard copies simultaneously with the electronic filing. Instead, the rules require that the parties wait for the Clerk’s Office to review and approve the electronic copy before filing the hard copies. Once you receive the approval notice from the Clerk’s Office, you have 2 business days to file the hard copies.

Finally, like with all other e-filing, the electronically filed documents are considered filed and served when they are uploaded to the NYSCEF system. That means attorneys are no longer constrained by the 5 p.m. (or sometimes earlier) court closing deadline. Instead, lawyers who can’t just put the pen down can write and edit until their heart’s content or midnight, whichever is earlier.  That’s good news for those of us who have had to have a courier race a brief to the Appellate Division at the last minute before 5, and bad news for procrastinators who need a firm deadline to be productive.  I see many late night filings ahead in the Appellate Division.

This is an exciting development, as New York starts to catch up with its counterparts in the federal courts. As the Appellate Division e-filing system gets underway on March 1st, it will hopefully work well enough to convince OCA that e-filing should be expanded to all appeals and, eventually, to all New York courts. Indeed, e-filing is good not only for lawyers, but it also provides the public with a valuable opportunity to get access to the court documents on which decisions are based. That, plus New York’s move to live stream all appellate arguments throughout the state, provides a level of transparency that just wasn’t present before. Now, you can read the parties’ briefs, watch the arguments, and read the court’s decision all from the comfort of your own computer screen. What could be better than that!

The new Appellate Division e-filing rules can be found here.

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Court of Appeals: Private Facebook Posts are Discoverable Under Normal Discovery Rules

Like privacy wonks have always said, everything you do online will live on forever. In metadata, back up tapes, and the cloud. The same is true for what you say on Facebook, Twitter, or any other social media platform. And although privacy settings can protect your content from the general public, limiting it to sharing with specifically designated family and friends, those same protections don’t hold in litigation.

That’s what the Court of Appeals held recently in Forman v Henkin (No. 1), which I previewed here. In Forman, Kelly Forman sued Mark Henkin for injuries she suffered when she fell off one of his horses while riding in a state park on Long Island. Forman alleged that the leather strap attaching a stirrup to the saddle broke and caused her to fall. She claims that she suffered a traumatic brain injury that caused “cognitive deficits, memory loss, inability to concentrate, difficulty in communicating, and social isolation.” Although she was an active Facebook user at the time, about a year after her fall, she deactivated her account. Nonetheless, in discovery, Henkin sought an order compelling her to give him unrestricted access to her Facebook account, including posts from the non-public portion of her account.

Supreme Court granted the motion, in part, and ordered that Forman produce some private posts from her Facebook account, “including all photographs of herself that she privately posted after the accident, except those involving nudity or romantic encounters, and also the timing and length, but not the content, of her private Facebook messages.”

The Appellate Division, First Department, modified the order, however, on a 3-2 vote. The majority vacated the portion of the order requiring production of the private Facebook posts, except for any photos that she intended to use at trial. The majority cautioned that mere speculation that some of the private posts might be relevant is an insufficient basis to require production. The dissenters, however, argued that the majority put too high a burden on discovery of private social media documents. Case law over the last few years has tended toward allowing discovery, they said, and Supreme Court’s order was a proper balance under CPLR 3101(a).

The unanimous Court of Appeals agreed with the Appellate Division dissenters. After spending a bit of time explaining Facebook’s privacy settings, and acknowledging that sharing things on Facebook is still fairly new (in the grand scheme of history), the Court held that “there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute” (Opn, at 7). New York’s normally broad discovery rules apply. No new or heightened standards for discovery are required, the Court held.

The Court rejected a former First Department rule for private social media discovery, which required the party seeking the information to establish a factual basis for delving into the private posts by showing that information on the public portion of a social media account tended to contradict or conflict with the plaintiff’s alleged injuries or claims. That rule, the Court held, “effectively permits disclosure only in limited circumstances, allowing the account holder to unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the materials on the public portion of the account” (Opn, at 8). That would be contrary to New York’s policy for allowing broad disclosure in litigation.

Discovery of private social media information isn’t unlimited, however, the Court held. Requests still have to be narrowly tailored and reasonably calculated to reveal relevant information. Fishing expeditions still aren’t allowed.

we agree with other courts that have rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable. Directing disclosure of a party’s entire Facebook account is comparable to ordering discovery of every photograph or communication that party shared with any person on any topic prior to or since the incident giving rise to litigation – such an order would be likely to yield far more nonrelevant than relevant information. Even under our broad disclosure paradigm, litigants are protected from unnecessarily onerous application of the discovery statutes (Opn, at 9-10 [cleaned up]).

Providing useful guidance to the trial courts supervising discovery, the Court took the opportunity to explain what the inquiry should be when discovery disputes arise.

In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. In a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate – for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]) (Opn, at 10).

Litigants and the courts now have a defined rule to apply—and to me what seems to be a sensible approach—when disputes come up about whether private social media posts should be discoverable. I’m sure further litigation will clarify how the rule applies in different and unique circumstances, but a little bit of predictability here should go a long way.

The Court of Appeals’ opinion can be found here.

Court of Appeals February Session: Arguments of Interest for February 14, 2018

Happy Valentine’s Day! The Court of Appeals wraps up its February Session with three cases on the calendar (the Court’s case summaries can be found here). The specific issues the Court will face include: (1) whether a plaintiff seeking summary judgment on the issue of liability must establish, as a matter of law, that he or she is free from comparative fault or whether that issue should be left to the damages portion of trial; (2) whether a worker was injured as a result of a force of gravity accident under Labor Law § 240(1) where he was operating a forklift when it tipped forward ejecting him from it; and (3) what is the maximum term of probation that may be imposed on a criminal defendant that is adjudicated a youthful offender on a charge of sexual abuse in the first degree.

No. 32     Rodriguez v City of New York

The New York City Department of Sanitation takes care of the snow plowing in New York City.  So, before the City gets a big storm, its trucks have to be equipped with plows and tire chains. That’s what the plaintiff was doing when he was hurt. As he and two co-workers were putting the tire chains on the City’s trucks, his co-workers backed a truck into a garage bay. The plaintiff walked behind the truck, the truck skid on ice while trying to stop, and the plaintiff was pinned between the truck and a stack of tires.

After the plaintiff sued the City for his co-workers’ negligence, Supreme Court denied his motion for partial summary judgment on liability, holding that the issue of the plaintiff’s comparative negligence had to be left to the jury to decide.

The Appellate Division, First Department, noting that when issues of comparative negligence should be decided in the course of litigation have vexed the courts for a long time, affirmed the denial of partial summary judgment. The Court held that the reasonable approach was to submit all of these issues to the jury if the plaintiff is unable to show that he is free from comparative fault on summary judgment.  That way, the Court reasoned, both sides can present their proof on comparative fault and the jury can sort it out.

Two justices dissented, arguing that the plaintiff’s burden on partial summary judgment as to liability should only be to establish the defendant’s fault. As the dissenters put it, “[t]he affirmative defense of comparative negligence is a partial defense that does not bar a plaintiff’s recovery, but merely reduces the amount of damages in proportion to the plaintiff’s culpable conduct.” That approach, the dissenters would have held, more closely aligns with the prevailing case law in New York, the CPLR, and the pattern jury instructions.

I think the dissent is right on this one. A prima facie case on the defendant’s liability for summary judgment purposes need only include enough evidence to show that the defendant was negligent. The plaintiff’s comparative fault is not a complete defense to the defendant’s liability. If the plaintiff can show that the defendant is somewhat at fault, then how much his damages should be reduced as a result of his own fault in the accident should only be addressed at the damages phase, not when the plaintiff has sought partial summary judgment only on liability. We’ll see if the Court of Appeals comes out the same way.

The Appellate Division, First Department’s decision can be found here.

Court of Appeals February Session: Arguments of Interest for February 13, 2018

The Court of Appeals is back for a 2-day week of arguments to wrap up the February Session at Court of Appeals Hall. The Court has 3 cases on the argument docket today (the Court’s case summaries can be found here), the highlight of which finds former Court of Appeals Judge Victoria Graffeo in her debut as an advocate before the Court squaring off with former New York Solicitor General Caitlin Halligan, now with Gibson Dunn. The issues before the Court today include: (1) whether a stop and frisk was justified where the criminal defendant furtively tried avoid the police, then when he was stopped, refused to answer questions, and the police officer saw a bulge up his sleeve; (2) whether, in determining the value of a partnership interest for purposes of Partnership Law § 69(2)(c)(ii)—to buy out the interest of a partner who has wrongfully caused the dissolution of the partnership to allow the partnership to continue—a minority discount may be applied to reflect the lack of control a minority partner has in the operations of the partnership; and (3) whether a motion to dismiss based upon documentary evidence was properly denied where email communications were unclear whether the parties agreed to the material terms of an employment contract.

No. 30      Congel v Malfitano

This case is interesting not only for the issues it presents and the impact it can have on corporate law in New York, but also for who is arguing it.  Former Court of Appeals Judge Victoria Graffeo, who Governor Cuomo unceremoniously declined to reappoint her to the Court at the end of her 14 year term (even though she had not reached the age of mandatory retirement, and most of her predecessors had been reappointed), is back!  Judge Graffeo makes her first appearance before the Court in an advocate’s role since returning to private practice after her time on the Court concluded. And she’s facing off with one of New York’s most formidable foes, former New York Solicitor General (and DC Circuit appointee who never received consideration from Congress) Caitlin Halligan. Should be a fun one to watch!

At issue in the case is whether a partnership was wrongfully dissolved by a single partner, instead of the majority, and whether in valuing the dissolving partner’s share a minority discount should be applied. Two really interesting issues of partnership law, a subject that doesn’t reach the Court of Appeals all that often.

Supreme Court held that Malfitano had, in fact, wrongfully dissolved the partnership, because the partners’ agreement didn’t allow for unilateral dissolution. The Appellate Division, Second Department affirmed that holding, further noting that the mere fact that the agreement didn’t specify a specific time period for the partnership to continue didn’t make it terminable at will, because it provided that the partnership would continue until a majority of the partners elected to end it. That’s a definite term, the Court held.

After a trial on damages, the Appellate Division, Second Department held that a minority discount should be applied to account for the fact that Malfitano, as a minority partner, couldn’t force the partnership to liquidate its assets (a shopping mall). The Court, though, relied primarily on a case from the Supreme Judicial Court of Massachusetts in doing so. The question now is whether New York law permits the same result.

The Appellate Division, Second Department’s order can be found here.

Court of Appeals February Session: Arguments of Interest for February 8, 2018

The Court of Appeals’ February session continues on Thursday, February 8, 2018 with three cases on the argument docket (the Court’s case summaries can be found here).

The Court will hear arguments on the following issues: (1) whether in misappropriation of trade secrets cases, damages can be measured by the misappropriator’s costs avoided, and whether prejudgment interest may be awarded on those damages; (2) when during trial must a criminal defendant invoke the right to proceed pro se; and (3) whether a criminal defendant was improperly denied the right to proceed to trial pro se, but with stand by counsel, and whether the trial court improperly denied the defendant’s attempt to introduce psychiatric evidence to challenge the voluntariness of his Miranda waiver.

No. 26     E.J. Brooks Company, d/b/a TydenBrooks v Cambridge Security Seals

Manufacturing plastic security seals is apparently big business.  You know, those seals that are nearly impossible to get off a bottle without a knife but give you a measure of comfort that nobody tampered with your goods before you opened them.  Well, when your company makes those plastic security seals, and three employees steal your trade secrets to take to a competitor, you sue them for misappropriating your hard work and ingenuity.

That is exactly what happened in E.J. Brooks Co. v Cambridge Sec. Seals, and the plaintiff won at trial.  So, the federal district court ordered the defendants to pay back in damages the costs that they avoided by stealing the trade secrets instead of developing the plastic security seals on their own.  The Court, however, denied the plaintiff’s request for prejudgment interest under CPLR 5001, holding in essence that inclusion of prejudgment interest would be duplicative here because the jury awarded damages from the date of the misappropriation to the date of the verdict.

On appeal, the Second Circuit held that finding liability was easy, but the question of the proper amount of damages for the misappropriation was less so.  The Court explained that New York decisions appear to have authorized a number of different measures of damages in misappropriation of trade secrets cases, but never explicitly the costs avoided measure used by the disctrict court below. So, the Second Circuit decided to certify the question to the Court of Appeals to decide.


The Second Circuit also certified whether the typically mandatory award of prejudgment interest under CPLR 5001 still applies where the plaintiff has already been awarded damages for the entire prejudgment period and an additional award of prejudgment interest would be a windfall.

The Court of Appeals will now have to decide these two certified questions:


The Second Circuit’s opinion can be found here.

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