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Law Offices of Jonathan M. Cooper

New York Noncompete, Trade Secret & School Negligence Blog

This blog by the six-time published author Jonathan Cooper, is intended to educate the general public about issues of interest, particularly innovations and changes in the law, in the areas of non-compete agreements, breach of contract matters, school negligence (and/or negligent supervision), construction accidentsslip and/or trip and fall accidentsauto accidents, and, of course, defective or dangerous products

For additional information on any of these topics, readers are encouraged to download these FREE e-books:

 


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3/1/2009
Jonathan Cooper
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When Food Poisoning Lawsuits Go Too Far (Even Outside New York)

In this article, Long Island, NY product liability and food poisoning attorney Jonathan Cooper discusses how some products liability claims should never be brought for the simple reason that the evidence clearly indicates that they lack merit. For additional information on how products liability and food poisoning cases operate under New York law, please download or order a copy of Jonathan Cooper's FREE guide to New York products liability cases from www.ProductsLiabilityBook.com.

Category: Defective Products

2/26/2009
Jonathan Cooper
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In a scathing opinion that chastised some standard insurance practices with regard to their catch-all "reservations of rights" to assert further defenses at a later date, New York's Appellate Division, First Department effectively issued an important reminder to all New York business insureds: don't take the insurer's disclaimer for granted or at face value; it may not be valid, and the insurer can be held liable to you in breach of contract, among other things. To learn more, read our article.




Category: General

2/24/2009
Jonathan Cooper
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In a somewhat scary opinion that was issued last month, the appellate court for the D.C. Circuit affirmed a lower court's order which both sanctioned and held in contempt a non-party for failing to comply with a deadline for the completion of electronic discovery that its attorneys had previously agreed to.

In its opinion, the appellate court refused to consider the non-party's arguments that this discovery request was overly broad and undly burdensome. In particular, the non-party noted that the parties' search terms returned such a broad swath of electronic documents, that several personal e-mails between employees and their spouses (which were clearly irrelevant to the case) came up, and the sheer volume of documents that these search terms returned forced this non-party agency, The Office of Federal Housing Enterprise Oversight, to hire approximately 50 contract attorneys for this document review, and to incur roughly $6 million in expenses (approximately 10% of this agency's annual budget).

Despite this incredible burden - and by a non-litigant no less - the court remained unpersuaded that the lower court had abused its discretion because OFHEO had already extended - and subsequently disregarded - several deadlines for their compliance with these discovery demands, and their obligation to comply with the terms of their own attorney's agreement was unambiguous.

The lessons to be learned here for New York small businesses that have been called into commercial litigation are clear:

(1) Make sure you have a good estimate about the scope and expense of an anticipated electronic data or document disclosure - BEFORE  any agreements are entered into regarding the time and expense of the data production;

(2) DO NOT allow the other parties to determine what the appropriate search terms will be without an appropriate mechanism to assure that you do not end up being required to produce a voluminous amout of records that bear no relation to the case;

(3) Make sure that the manner in which the electronically stored information is to be produced is reduced to writing - this could save you a great deal of time and effort, not to mention trees; and,

(4) In appropriate circumstances, that there are systems in place to assure that the demanding party bears at least some of the expense of the production (parenthetically, this is probably one of the best ways to insure that the demands are streamlined to the relevant discovery, as it is unlikely that the demanding party will want to pay for a bunch of e-mails you had with your brother about his trip to Atlantic City).

Category: General

2/23/2009
Jonathan Cooper
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Play At Your Own Risk: A Valid Legal Concept Under New York Law?

In this article, published author and Long Island, New York child accident and personal injury lawyer Jonathan Cooper discusses whether those signs declaring 'play at your own risk' have any validity under New York law. For additional information on how accident cases are generally evaluated and handled in New York, you can order a FREE copy of Jonathan Cooper's book Why Most Accident Victims Do Not Recover the Full Value of Their Claim by filling out the contact form at www.TheNewYorkAccidentBook.com or at his website at www.JonathanCooperLaw.com.

Category: Slip / Trip and Fall Accidents

2/18/2009
Jonathan Cooper
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Just one week ago, I opined that Alex Rodriguez did the right thing by publicly admitting - albeit belatedly - about his use of performance enhancing drugs back in 2003, and likened it to Michael Phelps's decision to admit his wrongdoing in smoking a certain illicit substance at a party.

Well, it appears that I may have been a bit too quick out of the gate on that one, because as it turns out, A-Rod has failed rather miserably to fully explain his actions. To the contrary, he compounded his public relations image problems at a news conference earlier today by denying that he knew he was taking steroids (which strains credulity to say the least, given that they were apparently the absolute top-of-the-line performace enhancing drugs at the time), and blaming his poor choice to take the banned substances on youth and naivete, when it has already been well-documented that at the time he took the 'roids, he was already a veteran star player and a multimillionaire.

In my view, A-Rod's half-truths and white lies were and are so transparent that his prepared statement at today's press conference has been rightly criticized and mocked. The moral of the story is this: if you're gonna come clean, then go all the way; otherwise, just keep your mouth shut and say nothing. Going half-way with the truth is rarely a viable option, because it leaves you stuck straddling a proverbial barbed-wire fence of lies (i.e., you will be caught in your lies and no one will believe you) - and that will hurt far worse than if you just went over the fence and got a little cut up, or never tried to scale the fence at all.

Category: General

Labels: trial truth
2/16/2009
Jonathan Cooper
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Earlier today, it was reported that when shopping in a Florida Wal-Mart's gardening section, a customer was suddenly attacked by a rattlesnake, biting his hand. Although the customer was able to shake off the snake, and ultimately killed it, he was hospitalized due to his personal injuries, and later had to return to the hospital so they could drain fluid that had built up in his lungs.

This was not the first snake attack incident that occurred at that particular Wal-Mart; there were two prior incidents that occurred in 2006. According to the customer, despite these two incidents, the store had no warning signs, and apparently did not undertake any other safety precautions. Consequently, the customer has claimed in his lawsuit that Wal-Mart should be held liable in negligence.

Interestingly, although it certainly sounds like the plaintiff in that case has enough proof to support a negligence claim, a quick search failed to find any snake bite or attack lawsuits in New York. Strange as it may sound, there are apparently some cases that New York's trial lawyers have failed to sue for - so far (though they have sued over rat and other animal bites).

Category: Car Accidents

2/15/2009
Jonathan Cooper
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As noted in the News and Small Business sections of our site, a small construction materials supplier by the name of Screws and More has decided to go after one of the nation's largest construction materials manufacturers, Powers Fasteners, claiming that some of the parts Powers provided did not meet specs, and cost Screws a large line of business. Although the contracts between the manufacturers and suppliers are often slated in the manufacturers' favor, and expressly limit the manufacturers' liability, there are certain elementary steps that a small commercial supplier should take to assure that it does not lose any important jobs due to the failure of its manufacturer's products. To read more on this topic, click here.

Category: General

2/15/2009
Jonathan Cooper
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Last week, a California appellate court which sided with Costco in its bid to prevent disclosing the names of its clothing suppliers on the grounds that this information was deserving of judicial protection as a trade secret. As we have previously noted, it is incumbent on the party asserting that certain information, such as a supplier's identity, be protected from disclosure in in a commercial, small business litigation as privileged matter or a trade secret, to demonstrate that this information was not readily obtainable from another public source, as well as what concrete steps and expense the business took to develop and protect this proprietary list. Otherwise, under New York law, the Court is obliged to compel the disclosure of the list.

Consequently, I was hoping that the California appellate court would elaborate on what specific steps Costco took to convince the Court that their clothing suppliers'  identities were privileged matter worthy of protection from disclosure as a trade secret, if only to provide a measure of comparison to New York law. Unfortunately, after reading the opinion, the Court clearly glossed over this topic, stating in cursory fashion that Costco produced some evidence that its list of suppliers had monetary value, and that it made significant strides to make sure that the names and addresses of its suppliers did not become public.

Category: General

2/11/2009
Jonathan Cooper
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I just found a very interesting series of articles discussing how the new breed of cars that run on hybrid or electric technology are actually too quiet. Although, given the loud cacophany that usually bombards New Yorkers' senses, this contention would seem absurd, a recent scientific study confirmed complaints raised by the Federation for the Blind that unlike regular gasoline-consuming vehicles, these cars fail to adequately warn pedestrians or other oncoming vehicles of their speed and approach, and thereby pose a greater safety hazard and potential for bkie or car accidents or injury. To read our fuller discussion of this topic, please see our article here.

Category: Car Accidents

2/10/2009
Jonathan Cooper
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In an article that appears in today's New York Times, a few prominent venture capitalists are quoted as saying that in the midst of this economic recession, the best way to entice investment in a start-up or small business is by demonstrating how the company's mission is specifically geared to save their clients money; decreased revenue across the economic spectrum have mandated that it is no longer enough to put out a great product.

And how does a small business go about showing that? Some recommendations, culled from the hi-tech sector, include using renewable materials, or promoting new web-based applications that are designed to seamlessly integrate different software applications, thereby increasing productivity.

This rule applies to the law business as well. In order to effectively market a law practice to small businesses, attorneys should be able to demonstrate, in concrete terms, to prospective clients how their firm streamlines the legal process to assure peak efficiency, particularly, but not limited to the context of litigation. One way this can be done is by filing cases electronically; another is by storing documents electronically for easy reference and retrieval; a third way is communicating with clients, adversaries and experts via e-mail, which not only reduces significantly postage costs that would otherwise be incurred, but also eliminates the time lag caused by the back-and-forth of snail-mail.

Category: General

2/9/2009
Jonathan Cooper
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In an important ruling, New York’s Appellate Division, First Department recently held that, as a general rule, a trial court may not accept trial testimony that is conducted via video or teleconferencing because it violates the other party’s constitutional right to confront adverse witnesses. Although the Appellate Court acknowledged that there were limited exceptions to this rule, such as cases where testimony was sought from children that were victims of abuse, the majority of the split court still felt that a party’s right to confront adverse witnesses “face to face” outweighed other parties’ needs to adduce testimony from witnesses that could not appear in court either due to illness or inconvenience (such as where the complainants lived in Australia).

 

This ruling was rendered in the criminal law context, but apparently applies in the civil context as well, including cases dealing with small business or commercial litigation, personal injury or defective products lawsuits.  And this can have very real economic and other consequences, such as where one of the defendants to a defective products lawsuit is a foreign manufacturer or distributor, or where the “silent” partner of a small company is a venture capitalist who lives more than 6,000 miles away.

 

In the end, I am not convinced that face-to-face confrontation is uniquely able to reveal the truth, particularly given the technological advances that would render these witnesses in remote locations to view the entire courtroom – including their adversaries. To the contrary, I think that this ruling effectively dealt the search for truth a harsh blow, because it will prevent numerous important witnesses from telling their stories before juries.



Category: General

2/9/2009
Jonathan Cooper
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Stars' Admissions of Drug Use And Lessons We Can Apply At Trial

New York Lawyer Jonathan Cooper looks at sports and drugs

Category: General

2/8/2009
Jonathan Cooper
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Last night, I came across this "How To" article that made 3 suggestions as to how to save money when hiring a lawyer for a personal injury case. While I do not fault anyone for trying to save a few dollars, particularly in this economic climate, I think the author is terribly misguided. Simply put, if a lawyer would actually agree to abide by any of the suggestions in that article, then you can be sure that is not the lawyer you want for your case, particularly if your case has to do with your small business or commercial litigation needs in New York.

Leaving aside the issue that most personal injury attorneys work on a contingency basis rather than an hourly rate (which renders moot most of the article), the other suggestions suffer from serious flaws as well. Perhaps the best example is his notion that you can offer to file the necessary papers in Court in exchange for a reduction in fee. I cannot imagine any attorney agreeing to these terms for the very basic reason that if you (presumably a non-lawyer) make any mistake in filing the papers with the Court, the attorney has opened himself up to a legal malpractice claim.

Moreover, even assuming that the attorney were to ignore the malpractice possibility (which he clearly shouldn't), the author's thought that it would be worthwhile for the attorney to significantly reduce his fee for clerical tasks that would ordinarily cost under $100 is, for lack of a better term, absurd. (The following analogy comes to mind: you ask your doctor to reduce his fee in exchange for you beginning the medical procedure for him.

In addition, this suggestion also ignores the fact that some clerical tasks cannot be handled by the client as a matter of law, such as service of legal papers on the other parties to the litigation.

Instead, if you are interested in getting the best value for your money when hiring a lawyer, you should consider the suggestions listed here.



Category: General

2/8/2009
Jonathan Cooper
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Although the Economic Stimulus Act of 2008, with its allowances for larger credits and write-offs for research-based expenditures, and reducing the amortization period for deducting the expense of rental space improvements are certainly welcome news for small business owners, these provisions, as correctly noted in yesterday’s New York Times article, do little, if any, good for many small companies that made little or no money against which these deductions would theoretically be applied.

Some small business owners are facing a different problem: those who made a moderate sum of money in 2008, but now, due to the recession, cannot afford to pay their taxes. While a spokesman for the Internal Revenue Service stated publicly that the IRS was willing to work with small commercial business owners to ease the burden of paying their tax bills in full, little specifics on how the mechanics of this process will work have been provided.

One provision in the new proposed stimulus plan is somewhat promising: it permits businesses that lost money in 2008 to offset the loss against the surplus that the business had in the five previous years. In that fashion, these businesses could recover, in the form of a tax refund, some of the losses that they experienced in 2008.

While many pundits have postulated that additional help for small businesses are in the works, the proof will be in what makes it (and doesn’t make it) into the legislation that is due to be signed shortly. Time will tell.



Category: General

2/5/2009
Jonathan Cooper
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In a case from Orange County in California that was reported yesterday, a jury held the local municipality liable for causing the collision between a car and the teenage boy’s bike, as a result of which the boy sustained serious personal injuries, including the loss of one leg below the knee.  From the news report, it seems fairly clear that the government intends to appeal the jury’s $8 million plus verdict, because from their vantage point, it is manifestly unfair to cast the lion’s share of liability on the municipality when they had no direct role in the bike and car crash; they did not own or operate either the car or the bike.  While, at first blush, the municipality’s argument seems meritorious, if you think a bit more critically, you will realize that their argument contravenes what we know from our everyday, real-world experience.

There are some intersections and streets that have had such a disproportionately high number of tragic car accidents and fatalities over the last several years (such as Queens Boulevard in Forest Hills and Rego Park in Queens County, New York, which the local papers have dubbed the “Boulevard of Death”) that it is clear to all that these roadways are defectively and dangerously designed.  Consequently, the better public policy is to hold the municipalities and states liable for these conditions; otherwise, these governmental entities will have far less incentive to assure the safety of their roads.

For additional information as to whether governmental or municipal authorities are liable for the dangerous conditions of intersections and roadways under New York law, you can read our article here.

Category: Car Accidents