NYSBA SPRING 2015 Perspective A publication of the Young Lawyers Section of the New York State Bar Association

A Message from the Section Chair

It is hard to believe that my ten- Recently, I my fellow offi cers: John Christopher ure as Chair of this Section is nearing heard an award and Terrence Tarver, or our Section’s its end. It seems like only yesterday acceptance hard-working Executive Committee. we were in Washington, D.C., at the speech in which I would also like to thank past Chair, Supreme Court, seeking admission the awardee Lisa Schoenfeld, as well as incoming for over 40 members of NYSBA. spoke of her Chair, Erica Hines, and Chair-Elect, Months later, I am already nostalgic reasons for Erin Flynn. I leave the Section in ca- for this past. becoming part pable hands and with great hopes of NYSBA. I In my last message, I recounted for the future. Tiffany Bardwell, our nodded in rec- how I came to be a part of the Young Section Staff Liaison, and tireless ad- ognition as she Lawyers Section. In this past year as vocate, makes all things possible. Her recounted seek- its Chair, I came to truly understand support and friendship have been ing role models on which she could both my role and the importance invaluable. model her practice as an attorney, of the Young Lawyers Section to its since she had no such models in her I would also like to thank NYSBA members. family. Like her, it was through all the staff and everyone at the Bar Center, The last 18 months have been great practitioners that I have met at which I have come to think of as a particularly intense, as the New York NYSBA that I found my path. If I too home away from home. It is through State Bar Association’s House of can help guide others, even as I ma- everyone’s dedication and their un- Delegates dealt with thorny issues ture in my own practice, I intend to fl inching support of the Young Law- involving pro bono reporting, and, do so with the same integrity, honor, yers Section that we remain on the most recently, the Uniform Bar Exam. professional skill, and courtesy as road to success. In the years to come, I Where attorneys can practice, how we those who have shown me. look forward to working with you all, are licensed, and what is expected of and any attorney, new to the profes- In my time as Chair, not one ac- us have all been in play. It is through sion, who could use a helping hand. complishment was gotten alone or thoughtful discussions with my fel- Sarah E. Gold, Section Chair in a vacuum. Nothing would have low delegates that I have endeavored Gold Law Firm been possible without the support of to give our Section a voice. In all of this, I know that—though we may be at the beginning of legal careers—the decisions made today will resonate, Inside altering legal practice in the years to Not So Fast!: The SEC Clamps Down Turning the Tide Against Revenge Porn: come. on HFT 3 How Prosecutions, Enforcements, and Ruben Magalhaes Platform Policies Are Making Waves 13 For my own part, I have risen to Scenes from the YLS Trial Academy 5 Amanda Levendowski speak, both expressing the perspec- Beyond the Tipping Point: Benefit Scenes from the YLS Annual Meeting 18 tives of the Section and on behalf of Corporations and the New Stakeholder FOIL 101: An Inside Route to Better attorneys to come. Being Chair of the Economy 9 Discovery 19 Young Lawyers Section is a role that Scott Exner Anthony Fasano I take great pride in, and I will con- The (Il)legalities and Practicalities of BOOK REVIEW: An Invaluable Practice Revenge Porn 12 tinue to support the efforts of the Sec- Resource for Today’s Litigator 21 Alex Urbelis Susan L. Shin (Reviewer) tion and all offi cers who follow. From the Editor’s Desk

Throughout history, spring and District Court This issue also contains the inau- summer have been welcomed and has made way gural appearance of “Meeting of the celebrated for their bringing of both for Securi- Minds.” Each issue, Meeting of the climactic and cultural change. Along ties Exchange Minds will ask two area experts to with the change in seasons is this lat- Commission to weigh in on a topic that has bearing est issue of Perspective. pursue insider both on our lives as individuals and trading charges as attorneys. In the last few months, our so- (S.E.C. v. Pay- ciety—and, by extension, the legal Revenge porn, the sharing or ton), despite landscape—has grappled with an on- online posting of sexually explicit the evidentiary slaught of issues that have struck at photos without the consent the per- stricture laid many of our fundamental rights. As son pictured, is a problem unique to out by the U.S. several states have passed religious our times. In many states, including Court of Appeals for the Second Cir- freedom laws that affect the rights New York, what constitutes and how cuit (U.S. v. Newman). of gay citizens, same-sex marriage is to address revenge porn has eluded back at the Supreme Court (Obergefell With this issue of Perspective, my both legislatures and courts. In this v. Hodges), while it also considered aim was to highlight those complex Meeting of the Minds, Alex Urbelis the limits of free speech and social legal and policy issues that dominate and Amanda Levendowski look at media (Elonis v. United States), and our headlines, affect our practice of the realities of and challenges sur- search and seizure (Heien v. North law, and touch our lives. This issue rounding the law and revenge porn. Carolina). Legal personhood for non- begins as Ruben Magalhaes’s follows As always, submissions from the human persons is again in New York the SEC in its hunt for fraud in high- legal community sustain Perspective. courts (Nonhuman Rights Project, Inc. frequency trading, and continues If you are interested in submitting an v. Stanley), and matters of personal with Scott Exner’s survey of benefi t article, I welcome articles represent- privacy in this era of expanding tech- corporations as they seek to balance ing a diversity of opinions, ideas, and nological innovation is both a state companies’ public benefi t purpose practice areas. Send your submis- (Foster v. Svenson and People v. Barber) and stakeholder interests. Anthony sions to [email protected]; the and national issue. Fasano then explores the discovery deadline for the Fall 2015 issue will benefi ts of New York’s Freedom of In New York, the long-brewing be October 9, 2015. Information Law, and Susan L. Shin battle over the Common Core tests discusses Robert L. Haig’s treatise, Felicia A. Reid has reached the Northern District Business and Commercial Litigation in Court (Allen v. King). The Southern Editor-in-Chief Federal Courts.

Request for Articles

If you have written an article and would like to have it considered for publication in Perspective, please e-mail it to: Felicia A. Reid, Esq. [email protected] Guidelines Articles can range from op-eds, current events pieces, short-form law reviews, and articles that highlight certain aspects of law or policy. Articles should be submitted in electronic document format (pdfs are NOT acceptable), and include a brief bio.

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2 NYSBA Perspective | Spring 2015 Not So Fast!: The SEC Clamps Down on HFT By Ruben Magalhaes

On Oct 16, 2014, the Securities For years, the SEC has attempted The ever-increasing public and Exchange Commission (SEC) to minimize the rampant market focus on HFT, combined with the settled with Athena Capital Research abuses that led to the recent stock prior absence of an SEC prosecution (Athena) over its high-frequency market crash, subsequent public for Athena-type infractions, led to trading (HFT) system, Gravy, which outcry, and resultant federal and questions about the transparency of defrauded the NASDAQ over a six- state legislation. Before the 2010 en- the market and the SEC’s enforce- month period in 2009. Athena had actment of Dodd-Frank, only those ment capabilities. Yet, because of carried out a series of “marking the subject to the SEC’s direct regula- the complexity of trading strategies, close’”1 orders, in an attempt to il- tion, such as brokers, could be sued regulators fi nd it diffi cult to draw legally alter the prices of tens of in administrative proceedings. The the line between acceptable trading thousands2 of publicly traded securi- new forum authorizes the SEC to and fraudulent manipulation.14 In ties. Athena used Gravy’s program- seek penalties in an administrative the Athena proceeding, the SEC set a ming—trading in milliseconds—to case against any defendant, such as starting point for legal precedent on move the price of NASDAQ stocks Athena and other HFT-abusers. HFT cases. in the last ten minutes of trading, but without any actual intent to invest. With an intent to defraud the Gravy was so effective that, during “For years, the SEC has securities market, HFT cases may that six-month period, it constituted attempted to minimize the violate section 10b of the Exchange 70% of all trading volume of affected rampant market abuses Act—a general provision prohibiting stocks within the last ten minutes of fraudulent practices in the purchase the NASDAQ’s closing.3 that led to the recent stock or sale of any security. Rule 10b-5 market crash, subsequent specifi cally prohibits making any The SEC held administrative public outcry, and materially15 false statements or omis- proceedings and issued a cease-and- sions.16 Action under 10b-5 requires a desist order to Athena over its HFT resultant federal and state statement be made with the intent to system.4 The SEC outlined Athena’s legislation.” deceive, manipulate, or defraud.17 In fraudulent strategy as such: the Athena order, the SEC pointed to Athena’s intent to defraud the mar- Immediately after the But why is the SEC suddenly fo- ket, and thereby, investors.18 fi rst Imbalance Message,5 cusing on HFT? Athena would issue an High-frequency trading, which It is not yet clear exactly how Imbalance Only on Close became a common trading tool long Athena had been using Gravy. order6 to fi ll the imbal- around 2009, is not illegal in and of What is certain is that Gravy was in ance. These orders are itself. In its most basic form, HFT is operation for at least six months in only fi lled if there is an “a program trading platform that 2009 and, during that time, Athena imbalance in a security at 19 uses powerful computers to transact was “acutely aware” of Gravy’s the close. Athena would a large number of orders at very fast machinations. At a time when Gravy then purchase or sell se- speeds.”11 The program uses com- was working at 25% accumulation, curities on the continuous plex algorithms to examine markets, an e-mail from an Athena manager book on the opposite side then executes orders based on mar- to the Chief Technology Offi cer and of its on-close order, until ket conditions. another manager stated: “[M]ake 3:59:59.99, with the goal of sure we always do our Gravy with holding no positions (be- What matters is the intent behind enough size.”20 The next day Gravy ing “fl at”)7 by the close.8 the algorithm and how frequently it operated at 60% accumulation. When is used to achieve that intent.12 HFT NASDAQ issued an automated regu- In the settlement, Athena neither is legal—so long as its intent is not latory alert due to suspicious activity admitted nor denied the SEC’s charg- to defraud the market. Germane to and possible stock price manipula- es, but paid a penalty of $1 million.9 the Athena decision, the SEC focused tion, the Chief Technology Offi cer The Athena case is the fi rst HFT case on Gravy’s intent in determining forwarded the alert, noting: “Let’s the SEC has pursued in adminis- that “what happened [t]here was make sure we don’t kill the golden trative proceedings, and marks an fraud.”13 goose.”21 important moment for both the SEC and market confi dence.10

NYSBA Perspective | Spring 2015 3 The SEC had a victory with the at an event at Fordham University 7. Id. at 2. (Athena called this process Athena case. However, its disposi- School of Law, discussed the Athena “accumulation,” and the algorithms that tion resulted in a “neither admit-nor- accumulated these positions were called case’s impact. He underscored the “accumulators.”). deny” settlement. This leaves open SEC’s challenges in overseeing a 8. Id. the question of whether the Depart- broad spectrum of laws and regula- ment of Justice (DOJ) will fi le suit in 9. The limit for similar cases is $725,000. tions, with limited manpower and See, 17 C.F.R. § 188. federal court. resources, while having to maintain 10. In the Athena case, the SEC imposed an expected level of quality and The Athena settlement came fi ve liability through Section 21C of the thoroughness. The answer to this years after the company’s fraudu- Securities Exchange Act of 1934 challenge, he said, is to: “Win a few (Exchange Act) and Section 203(e) of the lent conduct, highlighting the SEC’s major message cases, in different Investment Advisers Act of 1940. challenge in expeditiously targeting types of cases.” Athena, as the fi rst 11. See, Investopedia, http://bit.ly/ illegal strategies. As the SEC tries to settled HFT case, represents a major 1u81DbN. accelerate the enforcement of legal piece of that answer. A precedent has 12. Supra note 2. regulations through administrative now been set. 13. Press Release, Securities Exchange orders, its primary goal must be to Commission, SEC Charges New York- mete swift and steep penalties to de- Based High Frequency Trading Firm ter fraudulent trading. Waiting on a Endnotes With Fraudulent Trading to Manipulate DOJ investigation is a luxury the SEC Closing Prices (Oct. 16, 2014), available at 1. Marking-the-close or “portfolio http://1.usa.gov/1ARN94P. and the markets it regulates cannot pumping” is “the illegal act of bidding Why High-Frequency afford. up the value of a fund’s holdings right 14. Peter J. Henning, before the end of a quarter, when the Trading Is So Hard to Regulate, N.Y. TIMES, But individuals and companies fund’s performance is measured. This is Oct. 20 2014, available at http://nyti. done by placing a large number of orders ms/1KLDHFL. who consider implementing a Gravy- on existing holdings, which drives up 15. 15 U.S.C. § 78a. like system have been put on notice. the value of the fund.” See, Investopedia, The Director of the SEC’s Division http://bit.ly/14BVkX6. 16. Id. of Enforcement, Andrew Ceresney, 2. In the Matter of Athena Capital Research, 17. 17 C.F.R. 240.10b-5. declared: “This action should send LLC, Exchange Act Release No. 73369/ 18. Supra note 2. Investment Advisers Act Release No. a clear message that the Commis- 19. Id. 3950 at 1 (Oct. 16, 2014). sion and its Division of Enforcement 20. Id. 3. Id. at 2. have the expertise to investigate 21. Id. at 3. and charge even the most sophisti- 4. Securities Exchange Act, 15 U.S.C. § 78a(u)(3) (1934); Investment Advisers 22. Supra note 13. cated fraudulent algorithmic trading Act, 15 U.S.C. §§ 80(b)(1- 21) (1940). strategies.”22 23. Id. 5. Supra note 2, at 2 (“Imbalances for the What does this mean for the fu- close of trading occur when there are insuffi cient on-close orders to match buy Ruben Magalhaes graduated ture of the SEC and high-frequency and sell orders, i.e., when there are more from Fordham University School trading? SEC Chairwoman, Mary on-close orders to buy shares than to of Law in May 2014 and is an attor- Jo White, has said: “When high- sell shares (or vice versa), for any given stock.”). ney pursuing a career in securities frequency traders cross the line and regulation. Currently, he focuses on engage in fraud, we will pursue them 6. Id. at 3. (“Imbalance-Only-On-Close Orders (Imbalance-Only Orders) limit Dodd-Frank, specifi cally the imple- as we do with anyone who manipu- mentation of the Volcker Rule. 23 orders that would be executed when the lates the markets.” market closed, but only if there was an imbalance at the close.”). The SEC-New York’s Regional Director, Andrew Calamari, speaking

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4 NYSBA Perspective | Spring 2015 SScenescenes fromfrom tthehe YYoungoung LLawyersawyers SSectionection TTRIALRIAL AACADEMYCADEMY MMarcharch 229–April9–April 2,2, 20152015 CCornellornell LLawaw SSchoolchool • Ithaca,Ithaca, NYNY

NYSBA Perspective | Spring 2015 5 6 NYSBA Perspective | Spring 2015 NYSBA Perspective | Spring 2015 7 2016 Young Lawyers Trial Academy Save the Dates: Wednesday, March 30 – Sunday, April 3, 2016 • Cornell Law School

8 NYSBA Perspective | Spring 2015 Beyond the Tipping Point: Benefi t Corporations and the New Stakeholder Economy By Scott Exner

Dating back to Dodge v. Ford in now totaling over 500 businesses.8 hindering purpose-driven entrepre- 1919, courts have identifi ed the ulti- Over time, benefi t corporation pas- neurial activity. For instance, benefi t mate obligation of for-profi t corpora- sage in states may well alter where corporations are for-profi t busi- tion directors: to serve shareholder social entrepreneurs choose to nesses. They should not be regulated interests.1 Academic debate persists incorporate. as charities to any greater extent than regarding the existing legal authority traditional corporations when en- of directors and offi cers to consider A looming and pivotal juncture gaged in a market exchange of value non-shareholder constituencies, such is for a benefi t corporation to go for their products or services. Effec- as employees, local or larger com- public—a transition to which there tive regulatory mechanisms are in munities, or the environment. But in is no statutory impediment. Benefi t place to protect members of the pub- practice, legal custom and corporate corporations are already raising capi- lic who engage in donative activities 9 incentive structures have created a tal from high-profi le investors. In in response to for-profi t businesses pervasive culture of short-termism, 2013, publicly traded Campbell Soup that advertise a specifi c charitable characterized by adherence to a sin- Company acquired Plum Organics, purpose. However, broad regula- gular profi t-focused paradigm.2 and supported Plum’s conversion tion or registration of benefi t cor- into a benefi t corporation shortly porations, or other mission-driven, Enter the benefi t corporation, a 10 thereafter. for-profi t businesses, would be mis- term most corporate attorneys—and, placed —particularly if based on a in particular, those working with ear- In a crowded marketplace, to- day’s entrepreneurs understand the misunderstanding of the benefi t cor- ly stage companies—have now heard 14 need to differentiate. Many are now poration form. Alternately, changes in their practice. A new and volun- to existing federal policy could help tary for-profi t business entity, benefi t driving benefi t corporation adoption as a vehicle for sustaining and en- jumpstart the growing impact invest- corporations provide legal protection ment market,15 and in turn, increase and clarity for entrepreneurs seeking forcing company mission over time or upon exit. This is especially im- the fl ow of capital to mission-aligned to prioritize long-term value creation, businesses.16 not only for shareholders, but stake- portant for attracting and retaining holders as well.3 talent from a workforce increasingly The impact and presence of ben- 11 populated by millennials, who, efi t corporations is growing, fueled Notably, benefi t corporation research shows, seek out employ- by the rise of conscious consumer- directors must consider or balance ers that prioritize both profi t and ism and a desire amongst corporate a company’s public benefi t purpose 12 purpose. leaders and entrepreneurs to shift to- and stakeholder interests when mak- ward long-term, stakeholder-driven ing decisions. Directors are afforded, Investors pursuing more effi cient growth strategies. The right blend alongside shareholders, a right of ac- and reliable means of tracking envi- of policy, prudent judicial response, tion to enforce this obligation.4 More ronmental, social, and governance and the engagement with the public than 2,000 benefi t corporations have (ESG) performance, and a growing as a powerful force for market-based incorporated nationwide, with expo- conscious-consumer base, will ben- accountability, will all be critical in nential growth in the past few years.5 efi t from the increased transparency shaping the role of benefi t corpora- Legislation authorizing benefi t cor- that helps to distinguish good busi- tions in the emergent stakeholder porations has passed in 26 states and nesses from good marketing. Ensur- economy. the District of Columbia, and more ing that a company’s stated public than 10 states are considering similar benefi t goals match its operations is legislation in 2015.6 Delaware, the highly dependent upon providing Endnotes jurisdiction-of-choice for many U.S. investors and consumers access to 1. See, Dodge v. Ford, 204 Mich. 459 (Mich. businesses, has accepted registrants easily benchmarked and comparable 1919). Under Revlon, Inc. v. MacAndrews since 2013.7 data. Benefi t corporation compliance & Forbes, Inc., 506 A.2d 173, 182 (Del. with statutory reporting require- 1986), the fi duciary duty to maximize Benefi t corporations are here to shareholder profi ts, at least in the ments, and the use of independent public markets context, was held to be stay, but what a re the implications third-party standards, will be critical preeminent in a sale transaction. 13 and effects of their presence? Inter- in this regard. 2. “[E]ven if it were the case that corporate estingly, the State of Nevada repre- directors and managers were well suited sents the fastest growing proportion State policymakers and regula- to act as the guardians of employees, of benefi t corporation registrants, tors must also avoid inadvertently consumers, the environment, and society

NYSBA Perspective | Spring 2015 9 generally, the accountability structure (AltSchool), and Benchmark Capital by the beginning of 2014, up from $3.74 within which they operate in the United (Farmigo). See, Founders Fund, trillion in 2012. USSIF. See, US SIF, States is tilted heavily toward one AltSchool, http://bit.ly/1E6WQLQ; Report on US Sustainable, Responsible, and specifi c constituency: stockholders.” Leo Andreessen Horowitz, Portfolio, http:// Impact Investing Trends 2014, http://bit. E. Strine, Jr., Making it Easier for Directors bit.ly/1iHWvry. See also, omio Geron, ly/1C7dWfP. See also, David Brooks, to ‘Do the Right Thing,’ 4 HARV. BUS. L. Forbes, Farmer’s Markets at Massive Scale? How to Leave a Mark, N.Y. TIMES, Jan. 27, REV. 235 (2014). One Startup’s New Approach, http:// 2015, at A21 (“[I]mpact investing is now 3. Benefi t corporations are often confused onforb.es/1By8r8b (Dec. 11, 2012) entering the mainstream.”). (Identifi es Benchmark Capital as a Series with, and should be distinguished from, 16. For example, ERISA regulations in A investor in Farmigo). Certifi ed B Corps. These are businesses the U.S. have had a chilling effect on privately certifi ed by B Lab, a 501(c)(3) 10. See, Campbell Soup Company, 2014 ERISA fi duciaries’ consideration of nonprofi t, for meeting high standards of Corporate Social Responsibility Report, environmental, social, and governance social and environmental performance. http://bit.ly/18BNwXj (“Plum Organics factors. See, G8 Social Impact Investment Any for-profi t entity in any country can was acquired in June 2013, and Campbell Taskforce, Mission Alignment Working seek B Corp certifi cation. worked with Plum to incorporate it as a Group, Profi t-With-Purpose Businesses, 4. William H. Clark, Jr., Model Benefi t Public Benefi t Corporation (Plum, PBC) http://bit.ly/1Hg070A (recommending Corporation Legislation, §§ 301(a), 305 under Delaware law.”). country laws “should not prohibit (June 24, 2014), http://bit.ly/1EB6ATD; 11. Millennials will represent 75% of the investment managers or fi duciaries see also, DEL. CODE. ANN. tit. 8 §§ 365(a), workforce by 2025. Morley Winograd responsible for investing pension funds 367. & Dr. Michael Hais, Governance Studies: or endowments from (i) investing some How Millennials Could Upend Wall Street portion of those funds in social mission 5. Estimate based on accumulated public businesses, or (ii) applying a positive data received from various state and Corporate America, http://brook. gs/1wqgC47. impact screen to some or all of their Secretary of State offi ces as of March 13, investments”). 2015. On fi le with B Lab. 12. Three quarters of millennials “report 6. Twenty-four states and the District of that their company’s purpose was part Columbia have adopted legislation of the reason they chose to work there.” Scott Exner is a Corporate Asso- mirroring model benefi t corporation Delloite, Mind the Gaps: The 2015 Delloite ciate at Gunderson Dettmer Stough Millennial Survey, http://bit.ly/1IIzCjG. legislation with some slight variation Villeneuve Franklin & Hachigian, state by state. Delaware and Colorado 13. Clark, supra note 4 at § 401-402. have adopted similar, but amended, LLP. As a former Legal Fellow at the 14. See, Robert T. Esposito, Charitable requirements. See, B Lab, State by State 501(c)(3) nonprofi t B Lab, he worked Solicitation Acts: Maslow’s Hammer for Legislative Status, http://bit.ly/1D7B3Zg. to support entrepreneurs by remov- Regulating Social Enterprise, 11 N.Y.U. J.L. 7. Id. See also, DEL. CODE. ANN. tit. 8 § 361- & BUS. (forthcoming 2015). ing legal obstacles to scaling and 68. Delaware recognizes these entities as 15. According to the Forum for Sustainable investing in social enterprise and “public benefi t corporations” (PBCs). and Responsible Investment (US SIF), innovation. Scott earned his J.D. 8. Supra note 5. U.S.-domiciled assets managed under with honors from UCLA School of 9. Examples include Founders Fund sustainable, responsible, and impact Law and is a member of the New investing strategies grew to $6.57 trillion (AltSchool), Andreessen Horowitz York State Bar.

Join the New York State Bar Association Young Lawyers Section and the Nassau County Bar Association Young Lawyers Committee for a night of baseball with the BROOKLYN CYCLONES Thursday, July 16, 2015

Tickets are limited in number, so register now! Join us for what will certainly be a beautiful summer night! To register, please follow this link: www.nysba.org/ylsbrooklyncyclones

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NYSBA Perspective | Spring 2015 11 The (Il)legalities and Practicalities of Revenge Porn By Alex Urbelis

If you provide direct links to the obscene watch the The material.3 Newsroom, you This unique federal litigation, may recall seeking injunctive relief and dam- the Season 2 ages, relies on copyright law for horror, when jurisdiction. The theory is that since comely busi- the victim created the images, it is ness news she who owns their copyright. The anchor, Sloan ex-boyfriend, by posting the images Sabbith, sud- without her consent, is violating the denly realizes Copyright Act of 1976, entitling the that salacious photos of her have victim to injunctive relief. been posted on a “revenge porn” site, and were trending on social There is, however, a major hitch media.1 Fiction aside, revenge porn, to this approach: relying on copy- Meeting “or sexually explicit media that is right law requires that the explicit publicly shared online without the images be registered with the U.S. consent of the pictured individual,”2 Copyright Offi ce. This process is not of the is a real world problem and becom- only cumbersome, but unrealistic ing increasingly common. The law is and painful for the victim. What is Minds: reacting, but as is often the case with more, assuming the injunction is novel, tech-driven wrongs, most le- effective as to the ex-boyfriend, no gal redress is cumbersome, ill-fi tting, legal relief can prevent further dis- and insuffi cient. semination of the images. A court can grant relief only regarding a single There are, however, novel legal defendant, and cannot enjoin down- theories to combat revenge porn stream websites from displaying or at the federal level, and criminal transferring the offending images, U.S. Copyright Offi ce, but it is hardly statutes—though of questionable or prevent search engines, such as a silver bullet. effi cacy—at the state level. And, as Google, from displaying disparag- a practical matter, if a person does Criminalizing Revenge Porn ing search results that point to these share intimate photos, there are tech- sites. Defi ning revenge porn as a crim- nical measures to reduce the likeli- inal act is the clearest signal that this hood they will remain in another’s Another legal tactic, combating conduct will not be tolerated. Only possession or subject to misuse. revenge porn with Digital Millen- 13 states criminalize revenge porn, nium Copyright Act (DMCA) take- and, technically, New York is not one 4 Revenge Porn and the Law down requests, has sometimes had of them. On the international front, the opposite of the intended effect. Israel was the fi rst to pass a revenge At the Federal Level Websites have displayed takedown porn statute and the U.K. the latest to A particularly heinous instance requests with pride to draw more at- tackle the issue.5 The mere existence of revenge porn involving a current tention (and clicks) to the offending of such laws may be a powerful de- law student has found its way into material. The obvious intent behind terrent. But there are practical consid- the U.S. District Court for the Central this brazen disregard is to discour- erations for successful prosecutions, District of California. Filed by attor- age future DMCA requests, and it and the possibility of foreseeable but neys from K&L Gates, appearing pro is likely that this audacious tactic is unintentional consequences on sev- bono on behalf of a pseudonymous effective. eral fronts. plaintiff, the complaint alleges that In sum, copyright law may in- Chief among practicalities, the the victim’s ex-boyfriend posted deed provide a partial remedy for law must fi t the crime. In New York, sexually explicit material to revenge some patient victims willing to jump the fi rst prosecution of revenge porn porn websites, then contacted the through the hoops required of the failed, largely because existing laws victim’s friends and colleagues to (continued on page 14)

12 NYSBA Perspective | Spring 2015 Turning the Tide Against Revenge Porn: How Prosecutions, Enforcements, and Platform Policies Are Making Waves By Amanda Levendowski

being morally bad,” wrote Reddit DMCA compli- CEO, Yishan Wong, on the company ance, may subreddit, “We do ban subreddits for instead draw breaking our rules, and one of them more attention is repeatedly and primarily being a to the images place where people post copyrighted of victims who material for which valid DMCA re- request remov- quests are being received.”3 al.10 Further, it is diffi cult to The DMCA, or Digital Millen- overcome the nium Copyright Act, allows owners uneasy feeling of copyrighted content to submit that revenge requests to remove copyright con- porn is not what copyright law was Revenge tent from search engines and sites meant to redress. like Reddit. Why would Reddit ever Porn comply with such a request? Under Victims do have other remedies. the law, if a website complies with Along with copyright law, there certain conditions, like responding are existing state laws prohibiting to valid takedown requests, it is im- voyeurism, stalking, harassment, mune from liability for the copyright- and invasion of privacy, as well as ed content posted by third-parties.4 federal laws criminalizing computer If it refuses, it can be held legally ac- hacking and identity theft. Though countable.5 Ultimately, Reddit made underexplored, there is a federal law In fall 2014, thousands of nude the call to prioritize copyright law that demands special recordkeeping photographs fl ooded the internet af- over gross invasions of privacy.6 for images of individuals engaged ter a mass hack of celebrities’ iCloud in sexually explicit conduct.11 How- Previously, I wrote that copyright accounts. The hacked photos, most of ever, sussing out which laws apply could be used to combat revenge which featured young women, were is fact-specifi c, and lawsuits under porn.7 Because more than 80% of initially leaked on “wild west” of the these statutes can be expensive and revenge porn images are selfi es, the internet—sites such as 4chan and time-consuming. Reddit—and surged onto more main- vast majority of revenge porn victims stream platforms.1 Simply “fl agging” can use copyright law by sending the links, a method widely used to takedown notices to websites and Targeted Revenge Porn report violations of platforms’ poli- de-indexing requests to search en- Legis lation 8 cies, did little to stem the tide: Even if gines. As effective it can be in prac- Navigating the patchwork of one image was successfully removed, tice, particularly for celebrities, who applicable state and federal laws wave after wave of alternative links have means and better access to legal is admittedly tricky, which is why rolled in take its place. avenues, copyright is an imperfect Mary Anne Franks, a professor at the solution.9 These celebrities were victims of University of Miami School of Law nonconsensual pornography, or, “re- A single successful takedown and a member of the Cyber Civil venge porn”: their sexually explicit is insignifi cant when photos can Rights Initiative board, has said that images were publicly shared online easily be shared, alternately linked, “[S]tate and federal criminal laws without their consent.2 and distributed widely. Indeed, the are necessary to address the problem 12 tendency of removed content to pop of non-consensual pornography.” Nearly a week passed before up elsewhere is so common that it is Many states seem to agree: to date, Reddit banned the subreddit dedi- known as the “whac-a-mole” prob- 16 have enacted laws to address re- cated to distributing the hacked lem. Major revenge porn website venge porn with more uniformity photos. “We don’t ban subreddits for operators, who deliberately defy (continued on page 16)

NYSBA Perspective | Spring 2015 13 The (Il)legalities and Practicalities of Revenge Porn (Continued from page 12) did not reach this sort of conduct.6 resources to track and collect tran- from coming forward, deterring fur- Harassment was not an option be- sient forensic evidence across several ther prosecutions, and emboldening cause the material was not sent to the jurisdictions. potential offenders. victim herself; unlawful surveillance was inapplicable because the images Disappearing Evidence and False Practical Advice for Cautious were created consensually; and the Flags Couples display of offensive materials was A clear-cut case would look like The best way to ensure images similarly inconsonant because nudity this: a victim is notifi ed of offending never make their way to revenge is not, per se, offensive. material that can be traced back to an porn sites is obvious: do not create them. If, however, a person chooses Responding to this and other image sent to an ex-boyfriend. The to take and share intimate photos, failed prosecutions, on 1 November mobile device of that ex-boyfriend there are technical measures that can 2014, an amended version of New contains the image distributed with- decrease the likelihood of the image York’s unlawful surveillance statute out consent, and distribution can be being retained and misused. went into effect, criminalizing the traced to his IP address and his mo- bile device. Prosecutions, however, recording or broadcast of images of First: do not send intimate pic- are rarely so straightforward. the sexual or private parts of another tures through text message, iMes- which are created without consent.7 The fi rst stumbling block is the sage, Whatsapp, or any other mes- Critics have argued that this amend- image itself. If neither the victim saging platform that creates a con- ment does not go far enough to nor the ex-boyfriend have a record tinuous historical record of activity. protect victims. As a matter of fi t, the or copy of the image (perhaps both Doing so makes it easy for a spurned law is still not a revenge porn stat- upgraded their devices or deleted lover to scroll backwards in time and ute—it is a re-engineered version of a old messages), then only their mo- fi nd revealing photos exchanged peeping tom law. As such, the statute bile carrier(s) will have a record of during better times. does not extend to sexual material the initial transmission. Acquiring Second: if you do share private created by mutual consent but dis- that data is time-consuming and photos, use third-party messaging tributed without the consent of the resource-intensive. victim. applications such as Wickr, Silent But assuming no problem with Circle, or Snapchat that “burn” im- Carrie Goldberg, a board the above, the next evidentiary ages after a specifi ed period of time. member of the Cyber Civil Rights hurdle is proof of distribution. Some With these apps, it is possible to Initiative, who is active in its ‘End exes may be so incensed as to throw specify that the message or image Revenge Porn’ campaign, notes that: caution to the wind, but a thoughtful remain with the recipient for as little “In New York it’s criminal to share offender would use a new device and as ten seconds. While this does not credit card numbers8 and pirated public wi-fi for distribution. Techni- prevent screen captures of images, it music,9 yet we have no such protec- cally astute offenders would use a does prevent a person from retriev- tions for the far more personal and throwaway device and a virtual pri- ing previously sent images. Further, devastating distribution of private vate network (VPN), to make it seem apps such as Wickr and Snapchat sexual pictures.” Legislation10 intro- as if the distribution originated from make executing the screen capture duced by New York Assemblyman China or Russia. Acquiring logs and function on an iPhone a more cum- Edward Braunstein would change connection data from a foreign VPN bersome process, reducing the likeli- this, and, according to Goldberg, pro- provider (if such records are even hood that an image will be stored. tect victims regardless of the motive kept) is both a crapshoot and a her- Snapchat, by the far the most popu- of the distributor, “whether for re- culean task.12 But in the prosecutorial lar app for sharing intimate photos, venge, entertainment, money, ‘lulz,’ context, if you combine this type of alerts senders when an image has or no reason at all.”11 anti-forensic behavior with the fact been screen captured.13 that mobile devices are often lost or Another practical reason pros- Third: if sharing is not the goal, stolen, and add to that the prevalence ecutions fail is for a lack of resources. do not use an Internet-enabled de- of data breaches and malware, you Revenge porn is a fast-moving, vice to capture private moments. have something that begins to look cross-border offense that occurs on Recall the standalone digital camera, very much like reasonable doubt. several different technological plat- the long-forgotten device used to forms: cameras, smart phones, and With evidence diffi cult to collect take pictures and nothing more. Plac- web servers. Most local law enforce- and resources scarce, failed prosecu- ing several steps between yourself ment and prosecutors do not have tions may have serious unintentional and transmission of a private photo the fi nancial, technical, or human consequences: discouraging victims will make it less likely to occur.

14 NYSBA Perspective | Spring 2015 Fourth: do not back up intimate statutes and the civil remedies avail- The bill is available at http://bit. photos to a cloud. Many devices, in- able require further consideration ly/1GuN3Sy. cluding iPhones, are confi gured, by and study. Unless and until such a 12. TorGuard, a prominent VPN provider, advertises that it does not keep logs of default, to keep photos in a cloud’s time, the best defense is a good of- activity associated with an IP address. central repository. Weak passwords fense. The more we understand the Further, it notes that hundreds of users and angry exes are an awful com- permanence of our digital footprints are using any server at any particular bination, and the cloud is an all too and the technical measures at our time, making attribution of activity nearly impossible. See, Do You Keep easy target. disposal to reduce them, the better Any Log Files, TORGUARD, http://bit. able we, as users, are to avoid the Fifth and fi nally: Though unsexy, ly/1B5UMlv. problem of revenge porn altogether. keep a detailed log of images sent 13. A cottage industry of third party applications that surreptitiously capture and to whom they are sent. If the Snapchat images has developed. relationship devolves into a revenge Endnotes However, in recent months, Snapchat porn fi asco, those contemporaneous 1. Alan Everly, ‘The Newsroom’ Recap: has implemented more sophisticated records could be critical to a success- Sloan’s Nude Photos Go Viral; Maggie’s alert measures to combat this. Nothing, however, would detect whether a ful prosecution when evidence from Losing It, L.A. TIMES, 12 August 2013, http://lat.ms/1DCD0gz. separate device, such as a camera, was other sources is lacking. used to photograph the screen of the 2. Revenge Porn, WIKIPEDIA, http://bit. recipient’s phone while the image was ly/1u7p46r. * * * displayed. Technology will always outpace 3. Civil Lawsuit on Revenge Porn, N.Y. TIMES, http://nyti.ms/1AKnHMA. legislation. It is, therefore, no sur- Alex Urbelis is a lawyer and 4. Revenge Porn: U.S. Laws, WIKIPEDIA, hacker with over 20 years of expe- prise that the legal remedies avail- http://bit.ly/1MNupZG. rience with information security. able to victims of revenge porn are 5. Rick Kelsey, Revenge Porn is Being inadequate. Federal remedies are Made a Specifi c Criminal Offence, BBC He has worked for the U.S. Army, slow, burdensome, expensive, and NEWSBEAT, http://bbc.in/1FB7HjL. the Institute for Security Technol- only partially effective. Criminalizing 6. People v. Barber, 42 Misc. 3d 1225(A) (N.Y. ogy Studies at Dartmouth, the CIA, revenge porn is a strong statement, City Crim. Ct. 2014). the U.S. Court of Appeals for the but also an imperfect solution be- 7. N.Y. PENAL LAW § 250.45. Armed Forces, Steptoe & Johnson, cause of the under-inclusive nature 8. N.Y. PENAL LAW § 165.17. and as information security counsel of the proscribed conduct and the 9. A7811B-2011 (N.Y. 2011); N.Y. PENAL LAW and CCO of Compagnie Financière ease with which evidence can be de- § 275.00. Richemont SA (Richemont). Alex stroyed and prosecution frustrated. 10. B. A571, 2015 Assem., Reg. Sess. (N.Y. holds a BA, summa cum laude, 2015). in Philosophy from Stony Brook What is clear, however, is that 11. New York’s proposed revenge porn University, a JD, magna cum laude, victims of revenge porn are seri- law establishes as the crime of non- from Vermont Law School, and the ously and irreparably harmed. The consensual disclosure of sexually explicit images as a class A misdemeanor. BCL from New College, University elements and mechanics of criminal of Oxford.

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NYSBA Perspective | Spring 2015 15 Turning the Tide Against Revenge Porn: How Prosecutions, Enforcements, and Platform Policies Are Making Waves (Continued from page 13) than the patchwork of existing laws, The Arizona law underscores Platforms are also joining regula- frequently relying on Franks’ model the tension between laws broad tors and prosecutors in stemming the legislation.13 enough to protect all revenge porn tides of websites, links, and images victims, yet narrow enough to with- featuring revenge porn. Recently, On one hand, criminal laws pro- stand strict scrutiny under the First Twitter, Facebook, and Instagram vide a uniform way for prosecutors Amendment. Given that the Supreme announced new policies regarding to punish revenge porn distribu- Court has recognized that embar- revenge porn and retooled report- tors. On the other, poorly drafted rassing, disgusting, offensive, or false ing mechanisms to make it easier revenge porn laws pose real threats speech retains First Amendment pro- to report nonconsensual pornogra- to the First Amendment’s free speech tection, it is far from assured whether phy.22 Even Reddit announced that it protection. any revenge porn law will survive would be banning revenge porn from The legislative process has a a legal challenge.17 But the Arizona its subreddits, not because of copy- problem of its own: even the most law, which, on its face, criminalizes right law, but because of new privacy precisely drafted bill would undergo showing a photo of your newborn policies.23 naked baby to a friend, is not even a revision on its way to becoming law. None of this is to say that re- close constitutional call. Any revenge porn law runs the risk venge porn has been successfully of inviting a First Amendment chal- drowned out—it hasn’t. But these lenge for overbreadth or vagueness, Turning the Tide Using changes demonstrate that new crimi- but misguided legislative changes Prosecution, Enforcement and nal laws are not the only way to pun- can nudge a law from constitution- Platform Policies ish those who profi t from revenge ally questionable to completely porn. indefensible. In the fi rst few months of 2015, there has been a sea change when Take Arizona’s revenge porn it comes to penalties for distribut- Endnotes law.14 The law is a marked departure ing revenge porn. Nearly half of the 1. Danielle Citron and Neil Richards, Can from model legislation proposed most notorious revenge porn website and Should Perez Hilton Be Held Liable for by Franks, as well as the legislation operators were met with signifi cant Reposting Celebrities’ Private Nude Photos proposed by her colleague Danielle enforcement actions:18 Without their Consent?, FORBES, 3 Sept. Citron, a professor at the University 2014, http://onforb.es/1DuZZUY. of Maryland’s Francis King Carey • Kevin Bolleart—founder 2. User: Levendowski, Revenge Porn, 15 of the revenge porn site, WIKIPEDIA, 9 Oct. 2013, http://bit. School of Law. As enacted, the ly/1u7p46r. This defi nition was adopted Arizona statute does not operate as UGotPosted—was found by the Criminal Court of the City of New a carefully calculated criminaliza- guilty of six counts of extor- York. People v. Barber, 42 Misc. 3d 1225(A) tion of revenge porn—it is an om- tion and 21 counts of identity (N.Y. City Crim. Ct. 2014). 19 nibus nude photo law. This is why theft; 3. Yishan Wong, Every Man is Responsible the American Civil Liberties Union for His Own Soul, REDDIT, 6 Sept. 2014, • The Federal Trade Commission http://bit.ly/1K0bnOi. joined with a coalition of booksellers, fi led a complaint against 4. 17 U.S.C. § 512. artists, librarians, and free speech Craig Brittain—founder organizations to challenge it.16 In 5. Amanda Levendowski, Our Best Weapon of the revenge porn site, Against Revenge Porn: Copyright Law?, response to the ACLU litigation, IsAnybodyDown?—for unfair THE ATLANTIC, 4 Feb. 2014), http:// the law is undergoing an overhaul. business practices and false theatln.tc/1cRnSNP. Unfortunately, the proposed revi- claims;20 6. Sarah Jeong, Reddit As A Government, sions lack an exception for images FORBES, 8 Sept. 2014, http://onforb. disclosed in relation to a newsworthy • Hunter Moore, the “King of es/1yM7rzz. event. The law may still criminal- Revenge Porn,” pleaded guilty 7. Amanda Levendowski, Using Copyright ize, for example, the conduct of a to violating the Computer to Combat Revenge Porn, 3 N.Y.U. J. Phoenix-based journalist who for- Fraud and Abuse Act, a federal INTELL. PROP. & ENT. L. 422 (2014). warded her editor a photo of former hacking law, and to commit- 8. The Cyber Civil Rights Initiative (CCRI), 21 an organization focused on revenge New York Congressman Anthony ting identity theft. porn-related advocacy, determined Weiner’s “danger zone” because Notably, not one of these actions that 80% of revenge porn images are she would be disclosing a sexually selfi es based on responses to a survey involved a targeted revenge porn explicit image without the subject’s of 864 revenge porn victims. See, Helpful law. Resources, CCRI, http://bit.ly/1GdR2qa. consent.

16 NYSBA Perspective | Spring 2015 9. Caitlin Dewey, How Copyright Became Criminal Law Banning Nude Images, 23 Ban Revenge Porn, PCWORLD, Apr. 15, the Best Defense Against Revenge Porn, Sept. 2014, http://bit.ly/1vHzgDz. 2015, http://bit.ly/1ySv8Xc. In March WASHINGTON POST, 8 Sept. 2014, http:// 17. Amanda Levendowski, Arizona’s Revenge 2015, the author presented a research wapo.st/1rUPWcj. Porn Law Isn’t a Solution—It’s a Different on how online platforms’ investment 10. Supra note 7. Kind of Problem, VICE News, Sept. 29, in enforcing civil community norms 2014, http://bit.ly/1yM8W0E. can improve responses to online 11. 18 U.S.C. §2257. harassment, including revenge porn. See, 12. Mary Anne Franks, Combating Non- 18. Adam Steinbaugh, Reddit Revamps Conceptualizing Online Harassment and Consensual Pornography: A Working Paper, Privacy Policy, Leads the Way in Shifting Abuse Reporting Policies (HARP), Internet http://bit.ly/1O8OOfW. “Revenge” Porn Landscape (Feb. 24, 2015), Law Conference, 7 Mar. 2015, http://bit. http://bit.ly/1E3H3kW. ly/1HacUTq. 13. Those states are Alaska, Arizona, California, Colorado, Delaware, Idaho, 19. California Department of Justice, 23. kn0thing, From 1 to 9,000 Communities, Illinois, Hawaii, Georgia, Maryland, Attorney General Kamala D. Harris Issues Now Taking Steps to Grow Reddit to New Jersey, Pennsylvania, Texas, Utah, Statement on Cyber-Exploitation Verdict, 90,000 Communities (and Beyond!), r/ Virginia, and Wisconsin. Offi ce of the Attorney General, 3 Feb. announcements, Reddit (Feb. 24, 2015), 2015, http://bit.ly/1E3Heg7. http://bit.ly/1EKjQXd. 14. H.B. 2515, 2014 Leg., Reg. Sess. (Ariz. 2014) (“It is unlawful to intentionally 20. Complaint, In the Matter of Craig disclose, display, distribute, publish, Brittain, No. 132 3120, F.T.C (2015), http://1.usa.gov/1G1r0kr. The FTC Amanda Levendowski is a advertise or offer a photograph, member of Cooley LLP’s Trade- videotape, fi lm or digital recording of solicited public comment on its proposed another person in a state of nudity or consent order through March 2, 2015. mark, Copyright & Advertising engaged in a sexual act if the person 21. Plea Agreement for Defendant Hunter group. Prior to joining Cooley, she knows or should have known that the Moore, No. CR 13-917-DMG, U.S. v. reported on technology law and depicted person has not consented to Hunter Moore and Charles Evens (C.D. Cal. policy. Amanda graduated from the disclosure,” with a four narrow Feb. 18 2015), http://bit.ly/1F997Ep. exceptions.). NYU Law in 2014 and was admitted 22. Vindu Goel, Facebook Clarifi es Rule on to the New York State Bar in April 15. See, Danielle Keats Citron & Mary Anne What It Bans and Why, N.Y. TIMES , 16 Franks, Criminalizing Revenge Porn, 49 Mar. 2015, http://nyti.ms/1HabuZ2; 2015. She tweets about copyright, WAKE FOREST L. REV. 345 (2014); Danielle Hayley Tsukayama, Twitter Updates free speech, and privacy as Keats Citron, Hate Crimes in Cyberspace, Its Rules to Specifi cally Ban ‘Revenge @levendowski. Harvard University Press (2014). Porn,’ WASHINGTON POST, Mar. 11 16. American Civil Liberties Union, First 2015, http://wapo.st/1IHZStJ; Zach Amendment Lawsuit Challenges Arizona Miners, Instagram Clarifi es Rules to

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NYSBA Perspective | Spring 2015 17 Young Lawyers Section Annual Meeting January 2015 • New York Hilton Midtown • New York City

Outstanding Young Lawyer Award Presentation: Jessica B. Lee

Bridging the Gap

18 NYSBA Perspective | Spring 2015 FOIL 101: An Inside Route to Better Discovery By Anthony Fasano

Despite its power and scope, through days of the request—or a reasonable New York’s Freedom of Information discovery.9 period of time thereafter. When re- Law (FOIL)1 is an often under-uti- However, at- quests are especially voluminous, the lized attorney tool when seeking ac- torneys should agency may simply furnish a written cess to records from New York State be mindful of statement indicating that it cannot or its local municipalities.2 Although using FOIL re- comply within 20 business days and the disclosure parameters of the Civil quests for “im- state a prospective date by which the Practice Law and Rules (CPLR)3 pro- proper purpos- request will be granted or denied.16 vide an attorney with a broad range es, such as ha- To prevent receiving a protracted of discovery options, the law does rassment and response, requests should focus on have its limits. FOIL, however, pro- delay,” during specifi cally needed documents. Save vides a workaround. litigation.10 burdensome requests for discovery and use FOIL for records needed At its core, FOIL “imposes a Once a person submits a FOIL immediately, or for those that can- broad duty of disclosure upon [State request and an agency’s record ac- not otherwise be acquired through or local] agencies” to ensure govern- cess offi cer receives it, the agency discovery. ment transparency.4 To that end, has fi ve business days to grant that FOIL allows any individual to submit request, deny it in writing, or pro- Another particular benefi t of a request for an agency record unless vide a written response indicating FOIL is that requests may be made an exception exists.5 Under FOIL, a an approximate date when it will at any time—including prior to the “record” is: respond—generally within 20 busi- commencement of an action. Absent ness days.11 The type and number of a court order, to take advantage of [A]ny information kept, records requested will usually dictate discovery through the CPLR there held, fi led, produced or whether the request is granted or de- must be a commenced action. How- reproduced by, with or nied in the fi rst fi ve business days. ever, when a client cannot provide an for an agency or the state attorney with suffi cient details of a legislature, in any physi- If the agency denies a request potential claim, this can lead to a de- cal form whatsoever in- or otherwise fails to respond, an fi cient complaint or notice of claim. cluding, but not limited appeal may be brought within 30 FOIL can help remedy this familiar to, reports, statements, days,12 to which the agency must problem by providing a cost-effec- examinations, memo- respond within 10 business days. tive, informational bridge. randa, opinions, folders, If the agency’s fi nal determination fi les, books, manuals, is a denial, that determination may For example: A client informs her pamphlets, forms, papers, be challenged through an Article 78 attorney that her employer, a city designs, drawings, maps, proceeding.13 authority, has violated a policy per- photos, letters, microfi lms, taining to the investigation of harass- In seeking documents through computer tapes or discs, ment. However, her fear of retalia- FOIL, attorneys should know that rules, regulations, or tion prevents her from requesting the FOIL requires that the request codes.6 policy herself. In this instance, her “reasonably describe”14 the sought attorney can FOIL the policy,17 alle- The requirements of the CPLR records. A common issue that can viating his client’s fears and without and FOIL differ on the standard by delay production is when the request tipping his hand. Once the attorney which documents must be produced. does not. Records are reasonably receives the policy, he can use it to This difference is critical; juxtaposing described “when an agency has the draft a complaint or notice of claim. FOIL and the CPLR, a CPLR discov- ability to locate and identify [the He can also use it to further evaluate ery demand denied or contested may, requested] records with reasonable his client’s case.18 nevertheless, be granted if requested effort. Often pertinent is the means through FOIL.7 Uniquely, there is of- by which an agency maintains, fi les, While FOIL provides an addi- ten a greater right to records through indexes or retrieves its records.”15 tional avenue for attorneys to gain FOIL than under the CPLR,8 and access to records, it is most effective When seeking records in a short there is no prohibition from making when combined with the CPLR. As time frame, attorneys should take a FOIL request for the same or simi- many of FOIL’s advantages over care to ensure that the request can be lar records as previously requested Article 31 are lost when requests granted within the fi rst fi ve business

NYSBA Perspective | Spring 2015 19 are burdensome or complex, FOIL should not be used as the primary tool to gain State or local government records. Rather, attorneys will most often fi nd FOIL most benefi cial when requests under the law supplement CPLR discovery demands.

Endnotes 1. N.Y. PUB. OFF. LAW §§ 84-90. 2. The terms “[local] municipality,” “government agency,” and “agency” are used interchangeably throughout this article and carry the same defi nition as the term “agency” under N.Y. PUB. OFF. Pathway to the Profession: LAW § 86(3). 3. N.Y. C.P.L.R. art. 31 § 3101-3140. From Law School to Lawyer 4. Hashmi v. N.Y.C. Police Dep’t, 2014 NY Slip Op 24357 (Sup. Ct., New York Co. Nov. 17, 2014); N.Y. PUB. OFF. LAW § 86(3).

5. N.Y. PUB. OFF. LAW § 87(2).

AVAILABLE IN E-BOOK AND PRINT 6. N.Y. PUB. OFF. LAW § 86(4). 7. M. Farbman& Sons, Inc. v. N.Y.C. Health Pathway to the Profession: From Law & Hosps. Corp., 62 N.Y.2d 75, 80, 82-83 School to Lawyer – A book to assist new (1984). attorneys as they enter the profession. 8. 18056 Op. N.Y. STATE DEP’T (2010). This book is a compilation of substantive 9. Id.; see also, M. Farbman & Sons, Inc., 62 materials on topics such as legal writing and N.Y.2d at 78. legal research, motion practice, attorney 10. M. Farbman & Sons, Inc., 62 N.Y.2d at 78; see also, John T. Brady & Co. v. City of New professionalism, and marketing to help York, 84 A.D.2d 113, 115 (1st Dep’t 1982). make your transition from student to 11. N.Y. PUB. OFF. LAW § 89(3)(a). professional as seamless as possible. 12. N.Y. PUB. OFF. LAW § 89(4)(a).

13. N.Y. PUB. OFF. LAW § 89(4)(b). An Article Hardcopy Version 78 proceeding is used to appeal the ($5.95 shipping and handling charge applies) decision of a New York State or local 2015 | 432 pages | softbound | PN: 4350 agency to the New York courts. NYSBA Members: $0 | Non-Members: $20 14. N.Y. PUB. OFF. LAW § 89(3)(a); see also, 18938 Op. N.Y. STATE DEP’T (2012). E-book Version 15. 18858 Op. N.Y. STATE DEP’T (2012); see 2015 | 432 pages | e-book | PN: 4350E also, Irwin v. Onondaga County Res. NYSBA Members: $0 | Non-Members: $20 Recovery Agency, 72 A.D.3d 314, 318 (4th Dep’t 2010).

16. N.Y. PUB. OFF. LAW § 89(3)(a); see also, The book is free to all newly admitted attorneys! 18863 Op. N.Y. STATE DEP’T (2012). To order visit www.nysba.org/pathwaybookyls 17. See, 16141 Op. N.Y. STATE DEP’T (2006). 18. Courts in New York have looked favorably upon the usage of FOIL to obtain information prior to the $5.95 shipping and handling applies to hard copy orders of this book shipped within commencement of an action. See e.g., the continental U.S. Orders to international addresses, please call the Member Resource Bumpus v. N.Y.C. Tr. Auth., 66 A.D.3d 26, Center at 800.582.2452. 33-34 (2d Dep’t 2009).

NEW YORK STATE BAR ASSOCIATION Anthony Fasano is an attorney with the Law Offi ces of Guercio & 1.800.582.2452 www.nysba.org Guercio, LLP. The views expressed Source Code: Pathbook 2015B are solely those of the author and should not be attributed to the au- thor’s fi rm or its clients.

20 NYSBA Perspective | Spring 2015 BOOK REVIEW An Invaluable Practice Resource for Today’s Litigator By Susan L. Shin

By the time I started practicing and cross-references. Each chapter affi rmative defenses, and counter- in 2001, I did all of my legal research also includes practice aids and check- claims gave me insightful advice and electronically. Yet, I did not hesitate lists, as well as essential, time-saving perspective. to agree to author a review of Robert litigation forms and pattern jury L. Haig’s treatise, Business and Com- instructions. Haig’s treatise provides clear, mercial Litigation in Federal Courts,1 measured guidance on some of the having found its prior digital edi- Notably, it is also refreshingly thorniest issues facing litigators tions useful in conducting electronic modern. It provides cutting-edge today. For instance, Chapter 23 (De- research over the years. When an guidance on substantive issues that positions) offers practical instruc- enormous box arrived one afternoon, often plague today’s commercial tion on every aspect of deposition I panicked. Inside was a twelve- litigator. The treatise includes infor- procedure and conduct, including volume set of hardcover books with mative and instructive chapters on the challenges in preparing and de- gold embossing. It was the familiar internal investigations, regulatory fending witnesses under Fed. R. Civ. anachronistic regality of law school litigation with the SEC, consumer P. 30(b)(6), and the effective use of textbooks that we all fl ipped through protection, licensing, privacy and deposition testimony down the road with a mixture of dread and weary security, money laundering, the False during trial. Prominent e-discovery apathy. Claims Act, and litigation technology, trailblazer, Judge Shira Scheindlin, among over 100 others. co-authors Chapter 25 (Discovery of Where would I fi nd the time Electronically Stored Information). Even basic litigation topics come to read these and keep up with my The chapter includes commentary on alive with varying views and per- caseload? Yet, to my surprise, I found current doctrine, duties to preserve, spectives from seasoned litigators myself often reaching for the vol- claims of spoliation, and practical and judges. In the six months since umes. Haig’s treatise has become my guidance and considerations. time-saving, trusty advisor, and the that box arrived on my doorstep, sev- sections I have found most useful are eral issues have arisen in my practice I would be remiss if I did not those I would never have thought to and I referred to the treatise again acknowledge Haig’s thoughtful and research on Lexis or Westlaw. and again. Strategic considerations in pragmatic attention to law practice Chapter 10 (Comparison with Com- issues external to federal procedure, To be certain, the Haig compila- mercial Litigation in State Courts) substantive law, and the courtroom. tion is far from a clunky academic and Chapter 11 (Removal) were par- Chapter 47 (Alternative Dispute Res- tome that dryly lays out the Federal ticularly helpful in deciding whether olution), authored by the late Judge Rules of Civil Procedure or refer- to remove a case from a judge in the Harold Baer, gives a thorough review ences interpretive cases and author- New York Supreme Court, Queens of mediation and arbitration practice. ity. Rather, it is a practical collection County—who seemed unsympa- Likewise, Chapter 33 (Settlements) of the experiences and insights of 251 thetic to my adversary’s case. For the contains practical discussion on deal- of the country’s most distinguished same case, Chapter 3 (Enforceability ing with insurance carriers, conduct- practitioners and judges. Together, of Forum Selection Clauses) and its ing litigation risk assessments at the they fi ll 130 chapters of step-by-step strategy considerations gave me a outset of the representation, timing guidance—not only on procedure, useful and novel perspective. of settlements, and techniques to substantive law, and trial advocacy, achieve a favorable outcome before More recently, I relied on Chap- but strategic and tactical consid- reaching the courtroom. erations for plaintiff and defense ters 13 (Consolidation of Separate counsel. The compilation is stylisti- Actions) and 15 (Coordination of Lit- The treatise further recognizes cally and substantively cohesive and igation in State and Federal Courts) that a growing number of litigators logically organized—an impressive to develop a powerful and effi cient practice in-house, hired by corpora- achievement by a gifted editor. strategy to defend a client from seven tions to manage litigation—an in- separate actions, fi led in various creasingly common aspect of doing The treatise is practical and user- New York and federal courts, that business. With this in mind, Chapter friendly. Each chapter includes a sec- involved common questions of law 58 is devoted entirely to litigation tion on scope, in-depth strategy con- and fact. For the same case, Chapter avoidance strategies, while Chapter siderations and analyses, a detailed 8’s (Responding to Complaints) dis- 60 covers litigation management table of contents for easy reference, cussion on the practical and strategic techniques. Also excellent are Chap- and extensive citations to authority considerations of motions to dismiss, ters 62 (Litigation Management by

NYSBA Perspective | Spring 2015 21 Law Firms) and 63 (Litigation Man- having the full twelve-volume set of litigated disputes in state and feder- agement by Corporations), which ex- wisdom, experience, and authority at al courts and arbitrations. Ms. Shin plore the realities of and approaches your fi ngertips. Buy the book; the in- also defends institutions and indi- to budgeting and managing the ever- vestment is worth every penny. vidual clients in investigations and increasing costs of litigation. enforcement proceedings conducted Endnote by various state and federal govern- Litigators at all levels of experi- ment agencies. Ms. Shin began her ence will fi nd this compilation in- 1. BUSINESS AND COMMERCIAL LITIGATION IN FEDERAL COURTS (Robert L. Haig ed., term as President-Elect of the Asian valuable for its readability, practical- Thompson West 3d ed. 2011-2015). American Bar Association of New ity, and usefulness. For those who are York in April 2015. still intimidated by the hefty physical Susan L. Shin is a Partner in the volumes, the complete treatise also New York offi ce of Arnold & Porter Reprinted with the permission of the is available online through Westlaw. LLP. She practices complex busi- Asian American Bar Association of New But from one practitioner to another, ness litigation on behalf of fi nancial York. nothing replicates the experience of institutions and corporate clients in

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