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    04.05.13 Recent Graduates Rachel Bien ’05, Leila Hull ’09, and Eleonora Zlotnikova ’11 Making Real Impact on the Law
    scales of justice

    Three graduates of the last decade, Rachel Bien ’05, Leila Hull ’09 and Eleonora Zlotnikova ’11 have been making names for themselves as advocates. These women are but three of the many BLS graduates that have made a real impact on the law within just a few years of leaving school.

    Rachel Bien ‘05 Advocates on Behalf of Unpaid Interns
    Rachel M. Bien ‘05, a partner at Outten & Golden LLP, has recently filed suits against some high-profile media companies, including “The Charlie Rose Show,” Fox Searchlight Pictures, and Hearst Corp., seeking to protect the rights of an unlikely group of plaintiffs: unpaid interns.

    She has brought new attention and renewed scrutiny to the well-established practice of interning for credit but no pay, advocating against the “intern mill,” where private companies take on many interns and use them to do work that would normally be done by paid employees.

    “While it has become commonplace for companies to have unpaid interns who earn school credit, many are violating the law by using interns to do work, rather than providing them with an educational experience that mimics what they would learn in school,” said Bien.

    According to the U.S. Department of Labor, unpaid internships are only legal if they meet certain criteria, including that the internship experience is similar to a classroom or educational experience, the intern does not provide a direct advantage to the employer, and the intern does not displace regular employees. Internships in which interns do work alongside paid employees or reduce the workload of paid employees by shouldering some of their work are not legal.

    “Young people eager to join the workforce are rightly concerned,” said Bien. “A number of large companies have sought to reduce their labor costs by using interns to do the work of entry-level employees for free. Young workers hopeful to get their foot in the door are accepting these conditions, even though many know that they should be paid and are being taken advantage of.”

    These cases raise fundamental issues with the interning for credit programs that many colleges and universities use, namely that students are paying the institution for course credit, but the institution is not ensuring that the students’ internship experience is of educational value.

    Bien recently struck a settlement in a class-action case against “The Charlie Rose Show.” The settlement dictates that Rose will pay 190 ex-interns who worked for him between 2006 and 2012 up to $1,100 each. Though that case settled before dispositive motions were filed, Bien expects that two similar cases filed against Fox Searchlight Pictures and Hearst Corp. will be decided by courts in the Southern District.

    Leila Hull ‘09 Wins Victory for Protection of Miranda Rights
    Leila Hull ‘09, Staff Attorney for Appellate Advocates, recently won a significant victory for her clients in People v. Dunbar (2010-04786) in the New York Appellate Division, Second Department.

    On behalf of the defendant, Hull argued that a script that Queens’ law enforcement officials read to the defendant in a pre-arraignment interview program rendered subsequent Miranda warnings ineffective, stripping the defendant of his constitutional right against self-incrimination and requiring a new trial. The case was one of three cases challenging the interview program, and all were decided in favor of the defendants.

    “We are happy that the Appellate Division found the systematic practice of the Queens Central Booking pre-Miranda interview program unconstitutional. These decisions are important not only for our three individual clients but also for the thousands of past and future defendants who were, or in the future could be, confused or misled about their fundamental constitutional rights,” Hull and her colleague Allegra Glashausser said in a statement.

    Hull said that her experience as a student at Brooklyn Law School, where she learned the basic building blocks for her advocacy work, has been very helpful in structuring arguments as an appellate attorney. “When I stepped into this case, the material took me right back to Professor Herman’s Criminal Procedure class and learning the genesis of Miranda,” said Hull.

    The case remains pending as the Queens District Attorney has sought leave to the Court of Appeals.

    Eleonora Zlotnikova ’11 Obtains Early U.S. Supreme Court Experience
    Eleonora Zlotnikova, an associate of Sam. P. Israel P.C., a boutique commercial litigation firm, recently had an opportunity that most experienced attorneys don’t have—to work on a case that was argued in front of the United States Supreme Court.

    “It was really amazing to work on a case heard by the highest court in the land,” said Zlotnikova. “And it was especially rewarding to see our client’s arguments help shape this area of copyright law.”

    The case was Kirtsaeng v. John Wiley & Sons, decided by the Court in March. Zlotnikova helped shape the concept of the argument and developed ideas that contributed to the brief, which ultimately won the case. Before the Court was the “First Sale” doctrine, that states once a publisher first sells a copyrighted work, it loses any right to object to a later resale of that copy. This rule ultimately allows a customer to sell a used book to a second-hand bookstore that in turn can then sell used books to its customers.

    The case involved a Thai national who came to the United States for school. To help pay for his education, Mr. Kirtsaeng imported and resold textbooks purchased from bookstores in Thailand. When Wiley, a major American publisher, learned of Kirtsaeng’s activity, it filed suit for copyright infringement. The district court found for Wiley and the Second Circuit affirmed. With contradictory rulings by the Second, Third and Ninth Circuits, the Supreme Court granted certiorari.

    The Court considered a provision of the Copyright Act that permits the owner of a copy that was “lawfully made under this title” to resell the work. Wiley argued that the books printed in Thailand were not “lawfully made under this title,” and thus Kirtsaeng could not lawfully resell them. The issue was whether the First Sale doctrine applies to copyrighted works manufactured overseas. The Court ruled that the First Sale doctrine applies to all books, wherever made.

    As Zlotnikova explained, this is a copyright law victory that clarifies an important issue affecting a large secondary resale market including Amazon.com and Ebay. “Consider the burden that would occur to the user if the publisher’s point of view were adopted,” said Zlotnikova. “Would people know to check where something is made? It would subject participants in the secondary market to incredible liability under copyright law.”

    While at BLS, Zlotnikova focused on securities law and commercial law, and interned at the SEC in the Summer Honors Program–Enforcement Division. She joined her current firm after graduation, where she focuses on a variety of commercial litigation, copyright, securities, art law and other intellectual property cases.

BLS LawNotes - Spring 2014

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