Business Litigation Session. The July 17, 2006 issue of Massachusetts Lawyers Weekly has an article suggesting that some attorneys are agreeing in contracts that claims arising from those contracts must be filed in the Suffolk County Business Litigation Session (BLS). The article reports that Judge Allan Van Gestel, the presiding judge of the session, recently made public comments that, assuming the conditions and requirements of the session are satisfied, such clauses are likely to be enforced.
This certainly adds a new option to the forum selection issue, and, given some of the difficulties and hazards of litigating outside of the BLS, should be seriously considered by lawyers negotiating business agreements that fall within the rules permitting cases to be heard in that venue. For more details on those requirements, see here and here.
I’ve debated with myself whether to post this video of Joe Jamail, the Texas lawyer who won a 10 billion dollar verdict in the infamous (in the 1980s) Penzoil v. Texaco case. Of course, my colleagues, trouble makers that they are, encouraged me to publish this.
The background of this case, which was a cause celebre of major proportions at the time, is discussed here.
Old Joe got a whopping $1 billion contingent fee out of this case (which settled for $3 billion), resulting in much of the University of Texas Law School being beholden to him.
In any event, its a long way from the trenches of pre-trial discovery to the glory of a multi-billion dollar settlement. The miracles of the Internet now bring us a videotaped deposition by Mr. Jamail in this case. In most states, this deposition would result in court sanctions all around, but in Texas in the early ’80s, this kind of conduct seems to have been acceptable. Maybe it still is.
Up here in Boston, it would be pretty rare to see something like this. We’re very polite and circumspect here. I don’t know if that’s a good thing or a bad thing. Probably good.
Jamail, whose back is to the camera (you can only see his left hand), is deposing an expert witness. The Texaco lawyers appear to be defending. Unfortunately, everyone is off camera except for the witness.
Lawyers: please don’t show this to your clients or expert witnesses when they ask you what a deposition is like.
Queen Victoria’s Diamond Jubilee, held in London on June 22, 1897, was one of the grandest fetes the world has ever seen: 46,000 troops and 11 colonial prime ministers arrived from the four corners of the earth to pay homage to their sovereign. The event was as much a celebration of Victoria’s 60 years on the throne as it was of Britain’s superpower status. In 1897, Queen Victoria ruled over a quarter of the world’s population and a fifth of its territory, all connected by the latest marvel of British technology, the telegraph, and patrolled by the Royal Navy, which was larger than the next two navies put together. “The world took note,” says the historian Karl Meyer. The New York Times gushed: “We are a part … of the Greater Britain which seems so plainly destined to dominate this planet’.”
Click here to continue reading this Newsweek article, entitled “How Long Will America Lead the World?”
Noncompete Agreements. Plaintiffs trying to obtain preliminary injunctions to enforce noncompete contracts in the Massachusetts states courts are off to a bad start this year.
In February Superior Court Judge Richard Connon refused to enforce a noncompete clause against a former employee for a reason we see all to often: the employee signed the noncompete with one company, and then worked for another (presumably related) company with which he had not signed a noncompete. Sorry, this may be only a technical detail, but it’s always enough prevent the noncompete from being enforced. The case is Merchant Business Solutions v. Arst.
In mid-March Judge Jonathan Brant refused to enforce a preliminary injunction when the plaintiff’s former employee went to work for a competitor with the former employer’s blessing. A year later the former employer changed its mind and filed suit, seeking a preliminary injunction. A year is far too long, the judge ruled – motion denied. The case is New England Speciality Lumber v. Jarvl.
Finally, in late March Judge Peter Agnes denied a request for a preliminary injunction that the plaintiff brought against a contractor (as opposed to an employee). Judge Agnes denied the injunction, holding that two years was too long in the context of the business in question and the agreement was too vague as to its geographic reach. The case is Payson’s Trucking v. Yeskevicz.
The lessons from these cases are, for the most part, obvious. Make sure the employee signs the noncompete with the company he works for. Don’t sit on your hands for a year before signing trying to enforce an agreement; and try to keep the duration and geography as narrow as possible. Although Massachusetts judge used to be willing to narrow these contracts as written to make then reasonable, there seems to be a trend away from this practice.
What I’m Reading. A fascinating, in depth article about my favorite music download site, eMusic.com:
The Holy Grail of online music sales is the ability to offer iPod-compatible tracks. Like the quest for the mythical cup itself, the search for iPod compatibility has been largely fruitless for Apple’s competitors, whose DRM schemes are incompatible with the iconic music player. For a music store that wants to succeed, reaching the iPod audience is all but a necessity in the US market, where Apple products account for 78 percent of the total players sold. Perhaps that’s why eMusic CEO David Pakman sounds downright gleeful when he points out that “there’s only two companies in the world that can sell to them-Apple and eMusic.”
This site is hosted by Gesmer Updegrove LLP, a technology law firm based in Boston, Massachusetts. You can find a summary of our services here. To learn how GU can help you, contact: Lee Gesmer
