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ECBA Sues on Behalf of Community Organization and the Municipal Art Society to Halt Construction of Mega-Tower On Gerrymandered Zoning Lot

On April 25, 2018, ECBA filed a lawsuit on behalf of the Committee for Environmentally Sound Development and the Municipal Art Society of New York seeking to halt the unlawful construction of a 668-foot residential mega-tower at 200 Amsterdam Avenue which, if completed, would be grossly out-of-character with the neighborhood and cast long shadows. The lawsuit alleges that the zoning lot upon which the mega-tower would sit—the only justification for the tower’s height—was cobbled together using partial tax lots, in violation of the New York City Zoning Resolution.

On May 14, 2018, plaintiffs secured their first legal victory in the case, obtaining a Stipulation and Order from the Court preventing the developer from using its continued construction efforts to argue that its rights have “vested” – that is, that construction has progressed to the point that the project can no longer be halted. The developer continues work now at its own peril while the New York City Board of Standards and Appeals decides the pending administrative appeal.

The plaintiffs are represented by ECBA attorneys Richard D. Emery, Katherine Rosenfeld, and Ashok Chandran. A copy of the complaint is available here, and Politico’s coverage of the dispute can be found here.

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Federal Court Orders Law Firm to Produce Documents, Pursuant to 28 U.S.C. § 1782

A federal district judge has ordered the law firm of Akin Gump Strauss Hauer & Feld LLP to disclose documents in response to an ECBA client’s request to obtain discovery in aid of foreign proceedings under 28 U.S.C. s. 1782. The subpoena sought documents for use in open and contemplated proceedings in the British Virgin Islands concerning a dispute over the ownership and management of Future Media Architects, Inc. The decision further clarifies that a law firm may be required to produce documents in aid of a foreign proceeding that involves one of its clients, if discovery is not available from that client directly. The applicant was represented by ECBA attorneys O. Andrew F. Wilson and Ashok Chandran.

A full copy of the decision can be found here.

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ECBA Files Article 78 and Declaratory Judgment Petition on Behalf of City Council and the Council Members

On April 17, 2018, ECBA filed an Article 78 and Declaratory Judgment Petition in New York County Supreme Court on behalf of the Council of the City of New York, Council Member Ritchie J. Torres, Council Member Laurie A. Cumbo, and Council Member Alicka Ampry-Samuel, and against Zachary W. Carter, the Corporation Counsel of the City of New York. The Petition challenges the Corporation Counsel’s assertion that only that office can represent members of the City Council who wish to file friend-of-the-court briefs in their official capacities as Council Members. The City Council and the Council Members allege that both the separation of powers and the First Amendment allow them to retain their own lawyers for purposes of filing friend-of-the-court briefs in their official capacities.

The City Council and the Council Members are represented in this matter by ECBA attorneys Andrew G. Celli and Sam Shapiro.

For more information, read coverage from the New York Times and the New York Post.

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Daniel J. Kornstein Published in the New York Law Journal

O.W. Holmes Jr. and #MeToo

ECBA Partner and New York Law Journal occasional essayist Daniel J. Kornstein writes: “Holmes should be a hero, as yet unsung, of the #MeToo movement. He is sensitive and aware of the embarrassment and shame felt by a victim of sexual assault. He provides new support for any victim criticized for not reporting an incident sooner. Holmes’s comments should be cited in any brief on the point.”

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Federal Judge Allows Emoluments Clause Lawsuit Against Trump To Go Forward

On March 28, 2018, a federal judge sitting in Maryland allowed a landmark lawsuit against Donald Trump, prompted by his violations of the Domestic and Foreign Emoluments Clauses of the United States Constitution, to go forward, rejecting parts of Mr. Trump’s motion to dismiss the case.  On November 28, 2017, ECBA had filed an amicus curiae brief in support of the Plaintiffs on behalf of Sarah P. Chayes, an internationally-recognized expert in corruption and kleptocratic regimes who argued that Trump’s business interests promote corruption, undermine U.S. foreign policy, and threaten American democracy.  The Complaint, which was filed on behalf of the attorneys general of Maryland and the District of Columbia, is available here.  Chayes’s amicus brief is available here.  The New York Times, the Washington Post, Slate, and Vox, among other outlets, have covered this recent development.

ECBA attorneys Ilann M. Maazel and Emma Freeman represent Sarah Chayes.

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ECBA Sues Facebook for Discriminatory Housing Advertising

On March 27, 2018, the law firm of Emery Celli Brinckerhoff & Abady (“ECBA”) filed suit in federal district court against Facebook, Inc. on behalf of the National Fair Housing Alliance (NFHA) and three of its member organizations alleging that Facebook’s advertising platform enables landlords and real estate brokers to exclude families with children, women, and other protected classes of people from receiving housing ads.  The lawsuit alleges that Facebook has created pre-populated lists that make it possible for its housing advertisers to “exclude” (in Facebook terminology) home seekers from viewing or receiving rental or sales ads because of protected characteristics, including family status and sex.

Plaintiffs—NFHA, New York City-based Fair Housing Justice Center (“FHJC”), Miami-based Housing Opportunities Project for Excellence, Inc. (“HOPE”), and the Fair Housing Council of Greater San Antonio (“FHCGSA”)—created a non-existent realty firm and then prepared dozens of housing advertisements that they submitted to Facebook for review.  Facebook provided Plaintiffs with specific lists of groups they could exclude from receiving the ads, including families with children, moms with children of certain ages, women or men, and other categories based on sex or family status. The investigations also revealed that Facebook provides housing advertisers with the ability to exclude certain “interest” categories from receiving ads that are disability-based (e.g., people who are interested in disabled veterans or disabled parking permits) or national origin-based (e.g., people who are interested in English as a second language).

The Complaint alleges that these practices violate the Fair Housing Act and New York City Human Rights Law and seeks declaratory and injunctive relief declaring Facebook’s conduct illegal and requiring Facebook to change its advertising platform and practices to comply with fair housing laws.  The plaintiffs are represented by ECBA attorneys Diane L. Houk, Katherine Rosenfeld, and David Berman

Read the full complaint here.

For more information, read coverage from the New York Times, New York Daily News, Curbed, and New York Law Journal

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ECBA’s Work Prompts Plan to Make Cooper Union Free Again

The Cooper Union has just announced a plan designed to return to free tuition. This plan was the result of a lawsuit filed by ECBA on behalf of the Committee to Save Cooper Union (CSCU), which challenged the school’s decision to charge tuition for the first time in its history.

CSCU is a coalition of current and prospective students, alumni, and faculty.  The case argued that the school’s decision to charge tuition violated the terms of the trust established by Peter Cooper.  As a result of the CSCU lawsuit, the Attorney General of the State of New York launched a confidential investigation into Cooper Union. The settlement reached between CSCU, the school, and the Attorney General imposed an independent financial monitor; established a Board committee made up of alumni, students, and faculty to develop a plan for the return to free tuition; required the school’s leadership to make a good faith effort to return to free; and expanded the presence of alumni, students, and faculty on the Board of Trustees. The recent plan announced by the school is the result of this settlement agreement.

Read more about the plan to return to free here and here.

CSCU was represented by ECBA attorneys Richard D. Emery, O. Andrew F. Wilson, and Zoe Salzman.

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CAIR-NY, ECBA File Civil Rights Class Action Lawsuit to Block NYPD From Removing Arrestees’ Hijabs for Booking Photos

Together with the New York chapter of the Council on American-Islamic Relations (CAIR-NY), Emery Celli Brinckerhoff & Abady LLP (ECBA), filed a class action civil rights law lawsuit in federal court seeking an injunction to block the New York City Police Department (NYPD) from removing arrestees’ religious head coverings (like hijabs) for their booking photos.

The lawsuit claims that NYPD Patrol Guide Order 208-03 and 208-07 forces religiously-observant women to remove their head coverings for a booking photo, even when these garments leave the face completely unobstructed, as the hijab does.

CAIR-NY and ECBA filed the lawsuit this morning in the U.S. District Court for the Southern District of New York alleging that the NYPD photograph policy violates the New York State Constitution, the First Amendment to the U.S. Constitution and the Religious Land Use and Institutionalized Persons Act (RLUIPA).

As the lawsuit notes, municipalities across the country allow arrestees to retain religious head covering for their booking photos. In addition, the New York State Department of Motor Vehicles allows women to retain their hijab for driver’s license photos, and the U.S. State Department allows women to retain their hijab in passport photos.

NYPD booking photos are kept in arrestees’ files and computer databases where they are readily visible to officers and other men, compounding arrestees’ sense of violation.

“Our city is quick to make progressive promises, but slow to enact reforms,” said CAIR NY Legal Director Albert Fox Cahn. “This is a moment when Muslim New Yorkers need our support, not abuse. In just the past two years, New York State saw a 974 percent increase in anti-Muslim harassment, discrimination and hate crimes. It is intolerable that our officers force Muslim women to uncover against their will. It’s time for New York City to live-up to our promise of being a sanctuary for all faiths – we’ve fallen short for too long.”

“No New Yorker should be mugged for a mug shot,” said ECBA Partner O. Andrew F. Wilson. “Stripping New Yorkers of religious head coverings that do not obscure their faces serves no legitimate purpose.”

“There is a rapidly-consolidating consensus among police departments across the United States that religious head coverings should not be removed for mug shots,” said ECBA Associate Emma L. Freeman. “New York should be leading this trend, not following it.”

“When they forced me to take off my hijab, I felt as if I were naked, I’m not sure if words can capture how exposed and violated I felt,” said plaintiff Jamilla Clark.

“I expected to be celebrating the holidays with my family, but instead I found myself being forced to undress in a room full of men, my beliefs being trampled,” said plaintiff Arwa Aziz.

“I fear this policy makes it harder for victims of domestic violence that we serve to report their abusers to the police,” said Turning Point for Women and Families’ Founder and Executive Director, Robina Niaz.

The lawsuit names two individual plaintiffs, including Jamilla Clark, a survivor of domestic violence, who was allegedly arrested on charges fabricated by her abuser. Even though the charges against Clark were later dropped, during the course of her arrest she was forced to remove her hijab.

According to the complaint, a “NYPD officer took a photograph of Ms. Clark as she wept and begged to put her hijab back on. The officer ignored Ms. Clark, stored the photograph in an online database and on Ms. Clark’s paper file, and showed it to numerous male officers.” An officer also allegedly mocked Clark’s Muslim faith. A second named plaintiff, Arwa Aziz, is a mother of two who was detained on the eve of the Eid holiday (an Islamic religious holiday) just as she planned to prepare the family’s holiday meal. Instead of celebrating with loved ones, she was held on charges allegedly fabricated by an estranged relative. The charges against Aziz were later dismissed, but she too was forced to remove her hijab.

According to the complaint, “officers refused to allow Ms. Aziz to keep her hijab on while having her picture taken. . . They told her, falsely: ‘It’s the law.’ Frantic, weeping, and bareheaded in a hallway full of men who do not belong to her immediate family, Ms. Aziz felt broken.”

A third plaintiff is the organization Turning Points for Women and Families (TPNY), a non-profit that works on behalf of Muslim women who have survived domestic violence. TPNY has expressed concern about how the NYPD policy, and the threat of retaliatory arrest, could deter survivors from contacting police when help is most needed.

For more information, read coverage from the New York Times, Washington Post, Reuters, New York Daily NewsGuardian, Haaretz, and Huffington Post. Additional coverage can be found here, here, here, here, and here.

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ECBA Represents Avaaz in Motion to Quash Monsanto Subpoena

On behalf of the Avaaz Foundation (“Avaaz”), a global civic movement, ECBA has filed a motion in New York County Supreme Court in Manhattan seeking to quash a sweeping document subpoena from Monsanto Company, the multinational agrochemical and biotech company.  The subpoena seeks documents reflecting Avaaz’s multi-year effort to persuade governments worldwide to ban the chemical agent glyphosate, which is believed to be the world’s most widely-used herbicide.  Glyphosate is the active agent in Roundup®, a Monsanto product.  In 2015, the World Health Organization’s International Agency for Research on Cancer issued a public evaluation concluding that glyphosate is “probably carcinogenic in humans.”  Avaaz, with over 46 million members and staff in 23 countries, has been described by The Guardian as “the globe’s largest and most powerful online activist network,” and the campaign against glyphosate is just one of Avaaz’s many member-driven campaigns.

The Monsanto subpoena – which was issued in January 2018 as part of a personal-injury case in which agricultural workers are suing Monsanto over claims that they contracted cancer after exposure to Roundup® — seeks to compel the production of virtually every document in Avaaz’s possession concerning its political activities around glyphosate and Monsanto.  If enforced, the subpoena would require the turnover of Avaaz’s confidential internal communications and deliberations, campaign plans, research and source material, and even member and donor information.  ECBA’s filing, which can be found here, argues that the subpoena violates the First Amendment of the Constitution and New York’s Reporter’s Shield law; calls for the production of documents that are irrelevant to the underlying personal-injury case; and imposes an undue burden on Avaaz.  The GuardianEco Watch, and other media outlets, have reported on the case.

Avaaz is represented in this matter by ECBA attorneys Andrew G. Celli, Jr. and Douglas E. Lieb.

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