N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

When “Deny” Doesn’t Mean “Deny”: The Origins of the Common Law FMLA Inter-ference Test

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On April 22, 2025

In Contributions

by Anders M. Greene-Crow*

Although the Family and Medical Leave Act (“FMLA”) plainly states that employers may not “interfere [with], restrain, or deny” employee benefits, some circuits have impermissibly narrowed this prohibition by only permitting plaintiffs who have been outright denied benefits to proceed with claims alleging violations of this provision. However, the common law test these courts cite to, which defines interference for FMLA purposes, does not justify this narrowing approach. This Contribution argues that the common law test uses “deny” as a shorthand for various forms of interference with employee benefits, including those which stop short of an actual denial of benefits. Courts cannot use this common law test to justify narrowing the statute because the test’s history and purpose do not support doing so.

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Staying True to Title VII: Finding a Solution that Both Accommodates Religion and Is Reasonable

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On April 22, 2025

In Contributions

by Rachel Schwartz*

Title VII of the Civil Rights Act prohibits discrimination on the basis of religion by requiring employers to accommodate their employees whose religious observances conflict with their job duties. The text of the statute states that an employer must offer a “reasonable accommodation” to such employees, but it fails to define the term precisely. In a single sentence in Ansonia Board of Education v. Philbrook, the Supreme Court suggested that a reasonable religious accommodation must eliminate the conflict between religious practices and employment requirements. Based on this precedent, as well as the plain meaning and purpose of Title VII, this Contribution argues that the proper understanding of a reasonable religious accommodation requires a two-part analysis, first asking whether the accommodation eliminates the conflict and second, examining whether it is reasonable. Importantly, such an approach ensures that religious employees are accommodated and yet it is not too onerous for employers due to additional language in Title VII that protects employers from having to provide reasonable religious accommodations where doing so will result in undue hardship on the conduct of their business.

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Tester Standing: Why Precedent Requires that Disabled ADA Testers Can Establish Standing Under Either Informational or Stigmatic Theories of Injury

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On April 22, 2025

In Contributions

by Morgan Hale*

This Contribution argues that disability testers challenging non-compliant websites under the Americans with Disabilities Act (“ADA”) have Article III standing by analogizing to Fair Housing Act (“FHA”) testers in Havens Realty Corp. v. Coleman. Despite the Supreme Court’s increasingly restrictive standing jurisprudence, the broad statutory language of the ADA parallels that of the FHA, preserving a private right of action for ADA testers. By challenging the notion that testers’ voluntary encounters with discrimination undermine their injury, this Contribution asserts that both informational and stigmatic harms remain cognizable injuries under the ADA for testers. The ADA has the unique goal of addressing both animus-based and ability-based discrimination resulting from unaccommodating goods and services. To eradicate ability-based discrimination and ensure that people with disabilities can fully and equally partake in society, the availability of accessibility information is paramount. Moreover, when people with disabilities encounter unaccommodating goods or services, they are injured with equivalent stigmatic force as individuals facing animus-based discrimination. Thus, recognizing tester standing through informational and stigmatic theories of harms is essential to achieving the ADA’s aim of eradicating systemic disability discrimination.

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Bristol-Myers Squibb’s Impact on Collective Actions: Why the Tide Should Shift from Fischer and Towards Waters

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On April 15, 2025

In Contributions

by Isabelle Wechsler*

Despite the current weight of case law suggesting otherwise, the Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court of California (“BMS”) should not apply to Fair Labor Standards Act (“FLSA”) collective actions. This Contribution argues that federal courts hearing FLSA claims are not required to exercise personal jurisdiction over defendants with respect to out-of-state opt-in FLSA plaintiffs’ claims. This Contribution first provides a brief background on the Supreme Court’s decision in BMS and describes how lower courts have uniformly limited BMS’s application to class actions but not FLSA collective actions. It then compares the text and history of FLSA collective actions and class actions to demonstrate that the same reasoning used to limit BMS’s application to class actions should extend FLSA collective actions. It also shows that FLSA-specific arguments, particularly in relation to mass actions, support this conclusion. Finally, this Contribution demonstrates that even if federal courts are required to exercise personal jurisdiction over FLSA opt-in plaintiffs’ claims, a proper reading of Federal Rule of Civil Procedure 4(k) reveals only Fifth Amendment, not Fourteenth Amendment, Due Process restrictions apply, and thus out-of-state opt-in plaintiffs’ claims remain within the reach of a federal court’s jurisdiction.

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Too JUUL for School: Evaluating the FDA’s Regulation of Flavored Electronic Nicotine Delivery Systems

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On March 20, 2025

In Contributions

by Aster O’Leary*

In response to what has been dubbed a “youth vaping epidemic,” the Food and Drug Administration (“FDA”) has recently cracked down on non-tobacco-flavored Electronic Nicotine Delivery Systems (“ENDS”), which middle and high school students prefer over tobacco-flavored ENDS products. Recognizing that the ENDS industry is relatively new and constantly evolving, the FDA declined to mandate the inclusion of certain types of scientific studies in its guidance to the industry. However, many flavored ENDS manufacturers feel that the FDA pulled a “surprise switcheroo” when denying many of their Premarket Tobacco Product Applications (“PMTA”).1 In the denials, the FDA explained that the applications lacked long-term studies and/or controlled investigations that demonstrated that the flavored products were “appropriate for the protection of the public health.”2 Additionally, the manufacturers complained that for many of their applications, the FDA refused to consult their marketing plans, which the FDA had previously emphasized were of tantamount importance. This Contribution argues that the FDA did not violate the Administrative Procedure Act (“APA”) by modifying its approach to PMTA review. It first demonstrates denying PMTAs because they lacked long-term studies is permitted under the FDA’s flexible approach to weighing ENDS’ risks and benefits to society as a whole. It then argues that the FDA’s refusal to consult manufacturers’ marketing plans, while arbitrary and capricious, is in most cases harmless error. It concludes by questioning whether the FDA should be tasked with regulating an inherently harmful category of products in the first place.

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Shareholder Protection in Tender Offers: An Argument for an SEC-Enforced Negli-gence Standard Under § 14(e)

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On March 18, 2025

In Contributions

by Giulia Piccininni *

Federal Courts of Appeals throughout the country have interpreted § 14(e) of the Williams Act to require plaintiffs to make a showing of scienter when alleging entities engaged in tender offers made material misstatements and omissions in connection with tender offers. This long-standing interpretation was interrupted in 2018 when the Ninth Circuit held in Varjabedian v. Emulex Corporation that a showing of mere negligence was enough to plead a § 14(e) claim. The Supreme Court granted certiorari in Varjabedian to resolve the circuit split but ultimately did not issue a decision. The case was further complicated when the defendant and numerous amicus briefs raised an additional issue: whether § 14(e) gives plaintiffs a private right of action at all. This Contribution argues that § 14(e) is currently misinterpreted by a majority of the Courts of Appeals: while § 14(e) does not establish a private right of action, it does provide for SEC enforcement that can proceed under a negligence standard. Since § 14(e)’s prohibition on false or misleading statements does not contain language that necessarily implies scienter, such a showing is not required. At the same time, because § 14(e)’s text does not manifest clear congressional intent to create a private right of action, one does not exist.

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Securing Competitive Access: The Role of Supply Agreements in Mitigating Input Foreclosure Risks

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On March 13, 2025

In Contributions

by Alexander S. Greenberg*

This Contribution examines the important role that contractual supply agreements can play in addressing input foreclosure risks in vertical mergers. By analyzing the Microsoft/Activision merger and the Illumina/Grail acquisition, this Contribution assesses the efficacy of behavioral remedies such as supply agreements in preserving access to essential market inputs. The discussion highlights the adaptability of supply agreements in dynamic markets and their potential advantages over structural remedies. FTC v. Microsoft Corporation demonstrates how well-crafted supply agreements can facilitate regulatory approval by guaranteeing rivals’ access to crucial inputs. In contrast, the Federal Trade Commission’s rejection of Illumina’s Open Offer in Illumina, Inc. v. FTC underscores the limitations of broad behavioral remedies that fail to adequately prevent secondary harm. This Contribution argues that, when thoughtfully structured, supply agreements can serve as a powerful tool to mitigate vertical foreclosure concerns in rapidly evolving markets.

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Persons Legally Responsible for Children in New York State: A Standard Diverging from Legislative Intent

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On March 13, 2025

In Contributions

by Noah Noonan*

The New York Family Court Act defines a “person legally responsible” for child abuse and neglect as a custodian, guardian, or any individual responsible for a child’s care. Matter of Yolanda D., the seminal case on this definition, held that to satisfy the third ‘catch-all’ category, the respondent must be the “functional equivalent” of a parent. Following that decision, New York State Family Courts deciding whether a respondent is a person legally responsible for a child’s care focused on the respondent’s role in the child’s life. Recently, though, the New York Court of Appeals readdressed the issue of how to characterize persons legally responsible in Matter of Trenasia J. The Court in Matter of Trenasia J. nominally applied the holding from Matter of Yolanda D.—that a person legally responsible must be a “functional equivalent” of a parent— but fundamentally changed the nature of this inquiry by allowing the simple existence of a familial relationship to be practically determinative. This Contribution argues that Matter of Trenasia J. improperly diverged from Matter of Yolanda D. and contravened the legislative intent behind the definition of a “person legally responsible.”

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The Good Food Bill: The Impact of Federal and State Procurement Law on Implementing Sustainable Agricultural Standards in New York

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On February 20, 2025

In Contributions

by Rachel Klein*

The Good Food NY Bill (S.6955/A.7264) (“GFNY”) attempted to amend New York State’s General Municipal Law § 103(1) to allow municipalities and other political subdivisions to award food purchases to qualified purchasers where the price offered is up to 10% higher than the lowest bid and the proposed contract also meets at least one of six “best value” standards. GFNY passed the state legislature last legislative session and was rejected by Governor Kathy Hochul. Despite New York’s historical use of the lowest bidder procurement procedure, through which best value standards cannot be implemented as only price can be considered, this Contribution argues that GFNY’s use of best value is permissible through the formal request for proposals procurement method. GFNY is consistent with recent amendments to New York State law and guidance from the state government permitting the use of request for proposals procurement, which in turn permits use of best value standards. Existing case law and regulatory policy further supports the legality of the best value standards implemented by GFNY.

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Wrong All Along: Why Using Deliberate Indifference for Claims by People Incarcerated Awaiting Trial is Unconstitutional

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On February 13, 2025

In Contributions

by Megan Haddad*

Almost half a million people in U.S. jails are considered “pretrial detainees” 1—people who are incarcerated while they await trial. Yet even though our criminal system presumes that the pretrial detainee is innocent, for decades federal courts of appeals have assumed that when jail officials fail to protect people detained pretrial, those people are entitled only to the diminished constitutional rights of “a prisoner”—a person who is incarcerated after being convicted. Although some circuit courts have begun to reverse course on this issue in response to Kingsley v. Hendrickson, application of the “prisoner” constitutional standard was always incorrect. This Contribution argues that deliberate indifference—the legal standard announced in Estelle v. Gamble and Farmer v. Brennan, which holds that the prisoner can only establish a constitutional violation by showing officials are deliberately indifferent to a substantial risk of harm—should never have been applied to pretrial detainee claims. This Contribution first describes the difference between the pretrial detainee and prisoner status, including how each corresponds to a different constitutional provision (the Due Process Clause and the Cruel and Unusual Punishments Clause, respectively). It then discusses the deliberate indifference standard, and how it is inextricably linked to the Cruel and Unusual Punishments Clause. Finally, it demonstrates that Supreme Court jurisprudence has always indicated that pretrial detainee claims warrant a different, Due Process Clause-based standard, and urges litigants to use the full picture of pretrial detainee/prisoner jurisprudential history to convince the remaining circuits to abandon the deliberate indifference standard for pretrial detainee claims.

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