by Lee Gesmer | Feb 13, 2009 | Courts, What Were They Thinking
Judge: Miss West, are you trying to show contempt for this court?’
Mae West: On the contrary, your Honor, I was doin’ my best to conceal it.’
(During a trial in which she was accused of indecency on stage)
“The thing to fear is not the law, but the judge”
Russian Proverb
“One bad apple ruins the barrel”
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History is replete with judges who are open to bribery, who serve special interests or who are otherwise corrupt. We often read of judges who are sanctioned or prosecuted for misconduct. When a person dons a judge’s robe her character and values don’t change.
Despite the long history of judicial misconduct, I still was surprised to read about this kickback scheme in the February 13, 2009 New York Times. Quoting excerpts from the article:
[O]n Thursday . . . judge Mark A. Ciavarella Jr., and a colleague, [judge] Michael T. Conahan, appeared in federal court in Scranton, Pa., to plead guilty to wire fraud and income tax fraud for taking more than $2.6 million in kickbacks to send teenagers to two privately run youth detention centers run by PA Child Care and a sister company, Western PA Child Care. . . .
While prosecutors say that Judge Conahan, 56, secured contracts for the two centers to house juvenile offenders, Judge Ciavarella, 58, was the one who carried out the sentencing to keep the centers filled.
Senior Judge Arthur E. Grim . . . was appointed by the State Supreme Court this week to determine what should be done with the estimated 5,000 juveniles who have been sentenced by Judge Ciavarella since the scheme started in 2003. Many of them were first-time offenders and some remain in detention. . . .
If the court agrees to the plea agreement, both judges will serve 87 months in federal prison and resign from the bench and bar. They are expected to be sentenced in the next several months. . . .
Prosecutors say the judges tried to conceal the kickbacks as payments to a company they control in Florida.
I’m surprised by how often clients ask me whether judges in Massachusetts are on the up-and-up. I answer that they are, and with rare exceptions I believe that to be true. These clients are businesspeople involved in civil cases, not alleged criminals. Yet, they approach the civil courts with a degree of suspicion and mistrust that sometimes is alarming. It’s not unusual for a client to imply that a judge might be “bought off” by someone on the other side of the case, of just ask openly if this happens.
Directly or indirectly, millions of people will hear about these two Pennsylvania judges. Their crimes will become part of permanent the fabric of the U.S. legal system. The message is far worse than simply “some judges can be bought.” The message is that on their own initiative, some judges will use their position of power to enrich themselves, even if it causes enormous and lasting harm to the people (in this case minors), who appear before them. Judges everywhere in the United States are diminished by this scandal.
by Lee Gesmer | Feb 11, 2009 | Copyright
In June 2007 I wrote a post discussing two cases in which clients of our firm had, before they became clients, failed to get written assignments of copyright ownership from independent contractors who wrote software for them. Without a written assignment the contractors were able to claim ownership of the works, and make life very unpleasant for their customers, who may have assumed that since they paid for this work the code belonged to them.
A case decided last Fall shows what happens when this problem is taken to an extreme. In this case the programmer-contractor claimed ownership, and the value he assigned was in the millions of dollars. The customer was forced to go through a federal court lawsuit that involved discovery (expensive), summary judgment (quite expensive), and finally appeal to the Ninth Circuit Court of Appeals (very expensive), only to finally have a court declare that it owned an “unlimited, non-exclusive, implied license to use, modify and retain” the source code written by the contractor.
While this case had a happy ending for the customer, the entire expense, as well as the risk of a loss, could have been avoided if the customer had a piece of paper with only one sentence, signed by the contractor: “I hereby assign to [customer] all right, title and interest to all intellectual property developed by [contractor] during the course of any engagement by [customer], including but not limited to all property protected by copyright, patent or trade secrets.”
The case is Asset Management Systems, Inc. v. Gagnon
by Lee Gesmer | Feb 11, 2009 | Trade Secrets
Clients often ask what measures they need to take to protect their trade secrets, should it be necessary to enforce them in court and prove that they were treated as secrets.
Here’s how Kentucky Fried Chicken does it, according to an AP story published today:
The recipe lays out a mix of 11 herbs and spices that coat the chain’s Original Recipe chicken, including exact amounts for each ingredient. It is written in pencil and signed by Harland Sanders.
The iconic recipe is now protected by an array of high-tech security gadgets, including motion detectors and cameras that allow guards to monitor the vault around the clock.
Thick concrete blocks encapsulate the vault, situated near office cubicles, that is connected to a backup generator to keep the security system operating in times of power outages.
The recipe is such a tightly held secret that not even Eaton knows its full contents. Only two company executives at any time have access to the recipe. KFC won’t release their names or titles, and it uses multiple suppliers who produce and blend the ingredients but know only a part of the entire contents.
“We’ve very comfortable with the security,” [KFC President Roger Eaton ]said. “I don’t think anyone can break into it.”
Hmmmm …. perhaps a real-life George Clooney will be interested. Of course, we don’t really know what’s in that vault, do we?
by Lee Gesmer | Feb 5, 2009 | Miscellaneous
If you’re fascinated with India, as I am, there’s an interesting series of articles described as an “innovation tour,” of India by Vinit Nijhawan, Executive-in-Residence in the Boston University School of Management. In a series of “dispatches” Nijhawan “takes readers on a journey, from New Delhi’s teeming cell phone (and cell phone unlocking) marketplace to Chandigarh, home to a great engineering college and a nascent life sciences industry forming . . . around agricultural products”, to quote from Xconomy.
An introduction and links to the installments (five so far), can be accessed here.
by Lee Gesmer | Feb 2, 2009 | Noncompete Agreements
You’ve got to wonder what Steelcraft was thinking when it decided to file a lawsuit against its former employee, James Hensel.
It’s hard enough to enforce a written noncompete agreement, much less an oral agreement, but that’s what Steelcraft tried to do in this case. The absence of a written agreement didn’t deter Steelcraft, which sought a preliminary injunction against Hensel. Steelcraft was able to allege nothing more than an “oral” noncompete agreement. One of several requirements for enforceability of a noncompete agreement is that it be reasonable in duration and geographic scope, and even though Steelcraft alleged an oral agreement, it said nothing about that element, rendering the agreement unenforceable in the eyes of Worcester County Superior Court Judge Richard T. Tucker.
Steelcraft also alleged that Hensel had taken Steelcraft trade secrets (the decision doesn’t discuss precisely what these were), but once again its argument was rejected on the grounds that it had failed to establish that it had properly protected the alleged secrets. For good measure, the judge noted that Steelcraft had failed to enter into a confidentiality agreement with the former employee.
There’s a bit more to this case (favorable to Hensel, harmful to Steelcraft), but the point is made: if you fail even to get a written noncompete agreement from your employee, don’t expect that you’ll be able to stop him from competing based on an oral agreement. “He said – She said” just doesn’t work here.
To read the full decision in Steelcraft v. Mobi Medical click here.
