by Lee Gesmer | Feb 11, 2008 | Noncompete Agreements
In December I wrote a post title Why Has Silicon Valley Outperformed Boston/Route 128 as a High Tech Hub? The topic was whether the legality of noncompete agreements (“NCAs”) in Massachusetts has put the state at a disadvantage to California, where NCAs are not enforceable.
The Alliance for Open Competition is a blog where people and organizations who would like Massachusetts to join California (and other states) and make NCAs illegal express their views on this issue.
The first entry in the blog is Spark Capital’s open letter to Governor Deval Patrick in early December 2007.
The purpose of the Alliance is described as follows:
The Alliance for Open Competition is a group of entrepreneurs, investors and executives dedicated to fostering innovation throughout the US. We seek to breakdown a major barrier to entrepreneurialism: the use of non-competition agreements mandated by employers that force employees to sign away their rights to engage in any business of a competitive nature when they leave their present jobs. Today Massachusetts, New York and Michigan are among dozens of other states that still enforce non-compete clauses.
We believe that employment non-competes are stifling the emergence of start-up companies in these states, forcing innovative entrepreneurs to take on tremendous legal and financial risks, and hampering the ability to meet our fullest economic potential as a nation. To be clear, we do support non disclosure agreements and non-solicitation agreements. The Alliance is opposed to non-compete agreements. They are different issues.This blog will serve to share related topics, stories, news & links about this effort.
Many of the large high tech companies in Massachusetts believe that noncompete agreements are in their best interests, and I suspect that there is quite a bit of lobbying going on behind the scenes on this issue. It will be no small undertaking for the Alliance to unseat over one hundred years of Massachusetts common law permitting enforcement of NCAs.
by Lee Gesmer | Feb 8, 2008 | Litigation
The words “hostile work environment” get tossed around a lot by lawyers. But, just what constitutes a hostile environment that’s actionable under Title VII of the Civil Rights Act of 1964 is uncertain. It’s sort of a “I can’t define it, but I know it when I see it” standard. That standard may work at the two extremes (clearly egregious vs. obviously benign behavior), but it can be difficult to apply in the grey zone.
The First Circuit has weighed in on this issue with an important decision, reported in today’s Boston Globe, reversing summary judgment against an employee of the Town of Grafton who claimed a hostile work environment based on the assertion that her supervisor repeatedly stared at her breasts. The First Circuit saw the behavior in this case differently than the trial judge, who had dismissed the case.
Quoting from the Boston Globe article:
The three-member appeals panel said that Billings’s sexual harassment suit had raised serious claims, including that Connor had created a hostile work environment by staring at the breasts of several town employees and, after Billings complained to the Board of Selectmen around 2001, had retaliated against her by transferring her to another municipal job.
“Taken in the light most favorable to Billings, the evidence depicts a supervisor who regularly stared at her breasts for much of the 2 1/2 years they worked together,” the appeals court said in its 42-page decision.
The court said a reasonable jury could find that the staring had interfered with Billings’s work performance or changed the terms and conditions of her employment.
This case appears to open the door wider to hostile work environment claims. You can read the full case here.
by Lee Gesmer | Feb 7, 2008 | Miscellaneous
Lately, I’ve had a number of cases where the lawyer for a co-defendant wants to cooperate. Because this usually involves sharing attorney-client privileged information, we agree that our discussions are covered by the “joint defense privilege,” and sometimes enter into a “joint defense agreement.”
Recent discussions in this area reminded me that I never mentioned the Massachusetts Supreme Judicial Court’s 2007 decision in Hanover Insurance Company v. Rapo, where the SJC, for the first time, gave broad approval to cooperation between attorneys whose clients share a common interest. The court held (or suggested) that the “common interest doctrine,” which enables joint defense agreements, covers not only co-defendants, but co-plaintiffs, nonparties to litigation, and a party and a nonparty. A shared interest agreement need not be in writing, and the clients need not have been aware of it or consented to it. The interests of the parties need not be identical, as long as they are similar.
Not an earthshaking decision, since many attorneys assumed this to be the law, but worth a mention, now that it clearly is the law in Massachusetts.
by Lee Gesmer | Feb 6, 2008 | What Were They Thinking
I have written several times about the disciplinary proceedings against several attorneys who represented the losing party in the Demoulas cases. (see here, here and here).
As I described in the first of these blog entries:
The saga of how Gary Crossen (then of Foley, Hoag & Eliot and former ethics counsel to two Massachusetts Governors), Richard Donahue (a former President of the Massachusetts Bar Association, chair of its Commission on Professionalism and President of Nike, Inc.), and Kevin Curry, a former Massachusetts Assistant Attorney General, lured the judge’s former law clerk out-of-state in order to tape record his “confession,” attempted to bully him into signing an affidavit, conducted surveillance on him, and more, is described in agonizing detail in the 229 page decision. As a fan of hard boiled detective novels (including Boston’s current claim to fame, Dennis LeHane, author of Mystic River and other engrossing works), I can only say that in Boston, reality is stranger than fiction.
After years of hearings and delays Bar Counsel issued her decision recommending the “ultimate sanction,” disbarment of all three attorneys. Her decision is now working its way through the Board of Bar Overseers and will ultimately be in the hands of a single Justice of the State Supreme Judicial Court. The consensus in the community appears to be that bar counsel’s decision will be followed.
Bar Counsel’s recommendation of disbarment for two of the lawyers was adopted by the Massachusetts Board of Bar Overseers. That decision was appealed to the SJC by two of the three attorney’s involved (one of the three, Richard Donahue, received a three-year suspension, and chose not to appeal the recommendation).
Today, the SJC issued the last word on one of the most sordid episodes in Massachusetts legal history (which has no shortage in this area). The court, in decisions written by Chief Justice Margaret Marshall, adopted the Board’s recommendations as to Gary Crossen (decision here) and Kevin Curry (decision here), disbarring both.
A couple of choice quotes by Justice Marshall in the Crossen opinion:
“The scope of this misconduct has scant parallel in the disciplinary proceedings of this Commonwealth. . . . It struck at the heart of the lawyer’s professional obligations of good faith and honesty.”
“That there is no blueprint in our prior cases for the facts of this proceeding should come as no surprise, given the unusual scope of the misconduct”
“We have found [no prior case] that involves such a large number of attorneys . . . or deceit so exquisitely choreographed . . ..”
And in the Curry decision:
“Curry engaged in egregious, multiple, and prolonged violations of the disciplinary rules prohibiting attorneys from acts of deceit and dishonesty . . .. With no motive other than his his own financial gain, and with no evidence, Curry persuaded a group of dissatisfied litigants (with whom he had no prior dealings) . . . that a Superior Court judge had “fixed” their case, so that it was “over before it began.”
by Lee Gesmer | Feb 5, 2008 | Courts, Technology
Judges need to keep learning too, and a major source of education for them is the Federal Judicial Center, an organization dedicated to judicial education.
In fact, the FJC site is pretty cool. For example, here is a page that provides the biography of every federal judge (all courts, from District Court to Supreme Court), since 1789. Here is the bio of Judge Andrew A. Caffrey (deceased), who made me sweat quite a bit during this 37 day trial back in the early 1980s.
In any event, the FJC publishes various learning materials for judges, and last year they published a short work titled, Managing Discovery of Electronic Information: A Pocket Guide for Judges, authored by Judge Barbara J. Rothstein and former U.S. Magistrate Ronald J. Hedges.
As I’ve noted in the past, electronically stored information (or ESI, as its known), presents enormous challenges to lawyers and judges, almost all of whom were educated long before the last decade’s explosion in ESI. This Pocket Guide is important reading for lawyers practicing in the federal courts since it’s reasonable to assume that (a) the federal judge before whom you’re appearing probably has a copy sitting on the corner of his or her desk, gratis from the FJC, and (b) it may constitute the entirety, or close to it, of what the judge knows about ESI.
