Thursday, December 28, 2006

Need aerial pics of relevant area for litigation?

Although it requires a download, ( provides aerial pictures (and allows you to enter a specific address). Thanks to Hank Hoffman of SABO, Inc. for bringing this great site to my attention.

Desmond Inn of Court - February meeting

The meeting of 2007 will be a brown-bag meeting on February 7, 2007 in the ceremonial courtroom on the 2d floor of 92 Franklin from 12:15 - 1:30. Judge O'Donnell will lead a discussion on developments in the law in 2006.

Sunday, December 17, 2006

e-SOP article

by John Messing (p 13)

Monday, December 11, 2006

Sunday, December 10, 2006

Non-compete covenants & deferred compensation

The Court of Appeals (Pigott, J) adopted the constructive discharge doctrine from the Title VII context for use with the "employee choice" doctrine.

Non-compete covenants are not judicially favored and are strictly construed -- they will only be enforced to the extent reasonable and necessary to protect valid business interests" (citing BDO Seidman v. Hirschberg, 93 NY2d 382 (1999)). This policy is designed to protect professional mobility and to avoid restricting a person's ability to earn a living.

NY courts, however, recognize an exception to non-compete covenants under the "employee choice" doctrine. This doctrine allows employers to condition receipt of certain deferred compensation upon compliance with a restrictive covenant because the employee knowingly chooses between competing or continued employment (and deferred compensation). Where an employee voluntarily leaves the employer, the restrictive covenant will be enforced regardless of its reasonableness. If, on the other hand, the employee is involuntarily terminated, the forfeiture of the deferred compensation will only be enforced if it is reasonable. What happens if the employee claims to have been constructively discharged (i.e., employer makes the employee's working conditions so intolerable that employee is forced to resign)? Morris held that the constructive discharge doctrine is used to determine whether an employee's departure is voluntary for purposes of the "employee choice" doctrine.

In Morris, plaintiff was an asset manager who managed $7.5 billion in assets (which was reduced by the employer to $1.5 billion). He left to start his own hedge fund and sued for deferred compensation, which vested three years after each year in which a deferred compensation bonus was credited. Plaintiff's suit was dismissed in federal court and the issue was certified to the Court of Appeals by the Second Circuit Court of Appeals.

This decision was unanimous (Kaye, J. took no part).

Saturday, December 09, 2006

Judicial notice of websites (and presumably blogs)

Doron Precision Systems, Inc. v. FAAC, Inc., 423 F. Supp. 2d 173, 179 n.8 (S.D.N.Y. 2006)

Courts may, on a Rule 12(b)(6) motion, take judicial notice of information publicly announced on a website if the website's authenticity is not in dispute and capable of ready and accurate determination.

Thursday, December 07, 2006

The Court for the Correction of Errors of New York?

Many blawgs offer up to the minute analysis on cases being handed down. ABL, never one to conform for sake of conformity, will go the other way. ABL has dusted off an 1838 decision by the Court for the Correction of Errors of New York (a court that ABL had not heard of before coming across the decision). It is better than new, it is retro. Notably, the Court was comprised of a Chancellor and Senators.

Although subsequent decisions adopt this point of law, how often do you get a chance to cite to the predecessor of the Court of Appeals?

"The contract should not by implication receive an illegal construction. When a contract is capable of receiving two constructions, the one legal and the other illegal, it should receive that construction which would hold it legal." De Groot v. Van Duser, 20 Wend. 390, Lock. Rev. Cas. 398 (1838).

Crazy conservative hogwash

This morning I heard on the news ( that a Canadian mall asked a family to leave because they were giving "free hugs" -- which purportedly caused a disturbance. OK, I was not there and do not know exactly what these people were doing. Perhaps they were groping strangers under the guise of hugging (i.e., Monte the Montecido mascot on the special 2 hour Las Vegas). Perhaps they were getting in peoples faces and forcing them to be hugged. But I somehow doubt it.

This is not just an isolated family giving "free hugs," 2 seconds of internet research revealed that it is a worldwide movement (click post above; see also or Although the "free hug" movement claims to be apolitical, I think it sounds a little liberal to me - so the act of stopping it in Canadian malls is arguably anti-liberal or (in the simplistic ideological labels that we use) conservative.

ABL supports the "free hug" movement, random acts of kindness and whatnot. In fact, ABL may just go to the Mall at lunchtime with a "free hugs" sign. Or better yet, a criminal calendar (ABL recalls the pre-Vatican nuns who instructed him as a youth to do things like visit the sick and imprisoned). ABL suggests avoiding the office as a distribution site for "free hugs" because the "free hugs" defense has not yet appeared in the Title VII case law (but it soon will).

If you are interested in joining the "free hug" tribe, they have established guidelines:

- Freehugging is giving. You receive by others wanting to hug.
- Groping of using the opportunity to get sexual kicks is inappropriate, period
- Its free! No money needed in transaction, nor favours given in return
- Do it as long as you want, with as many people as you want. So long as everyone gets the same idea, this meme will continue to spread
- If you do it with others, then have a party afterwards to celebrate!

Wednesday, December 06, 2006

Crazy liberal hogwash

This morning I heard on the news ( that the San Francisco City Council required billboards carrying the "Got Milk?" campaign (,GGLD:2004-05,GGLD:en&sa=X&oi=images&ct=title) to be taken down because the billboards "smelled like cookies" and they did not want to offend people who could not afford cookies. First of all, this is America. We are a capitalist society. If you want cookies and you cannot afford them -- then go out and get some cookies. You can work to get the cookies. Those not in a position to work can go to a food pantry for some cookies.

Shall we ban ads for luxury cars to avoid offending ABL and those who cannot afford them? Nonsense.

I saw 20/20's "Cheap in America" the other night (linked at post above). They put a Salvation Army collector in front of Saks Fifth Avenue in San Francisco and another in Sioux Falls, S.D (in front of a Walmart). Despite the fact that SF has a much higher average income and is the bastion of liberalism, they donated less than half the amount that the good people of Sioux Falls did. In other words, in SF, you will not be "offended" by milk ads if you cannot afford cookies, but the Salvation Army will give you fewer cookies because the wealthy people did not care enough about the cookie-less of society to dig a little deeper. In Sioux Falls on the other hand, you have to face the affront of cookie smelling "Got Milk?" ads, but will be able to assuage your feelings of deprivation by an extra helping of cookies at the Salvation Army. The 20/20 show discussed Arthur Brooks's "Who Really Cares." (A take off on "Who Governs" and "Who Really Governs"?) Brooks found that conservatives are much more likely to give more to charity, despite earning less on average than liberal counterparts -- the key factor being regular church attendance.

ABL has left the soapbox to go earn some cookies.

PS -- ABL's good (highly liberal) friend REB suggested that ABL "ignored" the fact that homosexuals apparently take issue with the Salvation Army on some human rights issue. This assertion assumes that ABL was aware of this "fact." ABL was not. ABL does not subscribe to that newsletter. Not that there is anything wrong with that ( -- or REB's advanced knowledge of gay rights.

Friday, December 01, 2006

E-discovery amendments to FRCvP Effective Today

Not what ABL wanted for Christmas, but it will do. Actually, ABL would like to see the Rules Committee take some action on his proposal to amend Rule 4 (

In any event, these amendments will have a great impact on businesses, especially small and mid-sized business. Defendants tend to prefer federal court, but I think that the new ESI regime may compel business to prefer state court when they have the option. Large business (i.e. perpetual litigants) must ensure that record retention policies are reviewed and updated if necessary. ABL will discuss various aspects of the ESI ("electronically stored information") amendments in future posts.

The first change that jumps out at ABL is FRCvP 37(f):

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide [ESI] lost as a result of the routine, good-faith operation of an electronic information system." Sounds goods, but the ambiguity scares the hell out of ABL. What are "exceptional circumstances"? Although it sounds like a sufficiently high standard, it remains to be seen how it will be applied. Moreover, this suggests that there ARE circumstances in which a party MAY be sanctioned for routine, good-faith operation of the EI system.

Lawyer: Did I mention that the judge sanctioned your company?

Client: For what?

Lawyer: Your company copied over old back-up tapes during routine course of business and deleted old e-mails under its document retention policy.

Client: But that is the document retention policy that your firm drafted for my company!

Lawyer: I know, but the judge found that "exceptional circumstances" existed. What can I say, you win some, you lose some.

Client: Well, a lot of good that does me. What should I do to avoid future "exceptional circumstances" sanctions?

Lawyer: You could save everything, storage is relatively inexpensive.

Client: But do you know how many electronic documents the company generates in a year? We will have to purchase ten new servers a year to store the stuff that we no longer need.

Lawyer: Did I mention that our firm sells servers too?

Portrait Ceremony for Judges Elfvin and Curtin

Today the WDNY held a portrait unveiling ceremony for Judges John T. Elfvin and John T. Curtin, who have sat as federal judges for a combined total north of 72 years! Speeches were given by, inter alios, Dick Moot, Bob Conklin, Carol Heckman, and Charles Carra. Moot shared a story about the U.S. Attorneys' office when Judge Elfvin was an AUSA. Everyone in the office had a nick-name except Elfvin, who was known simply as "John" - not Jack or Johnny. Heckman shared a fond memory of Judge Elfvin, who welcomed her and her young children into his chambers for a visit and he sat on the floor with the children. Carra shared a story (unconfirmed at press time) about Judge Elfvin, who, after a good day at court asked Mrs. Elfvin "Peggy, how many great men do you think there are?" She replied "I don't know John, but certainly one less than you think!" The event was concluded with a wonderful rendition by the Accapellants (Judge Arcara noted that Judge Peradotto looks great in red - see 11/30 post below). They sang an adaptation of Billy Joel's "The Longest Time," in which they noted that Judges Elfvin and Curtin will be honored "for the longest time." It was a fine song that paid homage to the other Judges whose portraits grace Judge Curtin's courtroom. It was a great event for two beloved WDNY jurists.