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Law Offices of Jonathan Cooper May '11 Newsletter

Law Offices of Jonathan Cooper May '11 Newsletter

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Published by Jonathan Cooper
This month's newsletter is a bit unusual in that it covers two stories of outrageous behavior with one thing in common: people showing remarkable disregard for the safety of children. The first pertains to school negligence; the latter involves a toy manufacturer who ignored the federal lead paint regulations - even though these laws have been in effect since early 2009.

One other thing: you may want to check out an article that didn't make it into this month's newsletter: How New York's Day Care Licensing Requirements Fail New Yorkers
This month's newsletter is a bit unusual in that it covers two stories of outrageous behavior with one thing in common: people showing remarkable disregard for the safety of children. The first pertains to school negligence; the latter involves a toy manufacturer who ignored the federal lead paint regulations - even though these laws have been in effect since early 2009.

One other thing: you may want to check out an article that didn't make it into this month's newsletter: How New York's Day Care Licensing Requirements Fail New Yorkers

More info:

Categories:Types, Business/Law
Published by: Jonathan Cooper on May 08, 2011
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05/08/2011

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In a fascinating – and significant – April 28 decision, New York State’s highestcourt answered the following question:
How far can you go to help your new employer solicit your  former clients under New York law? 
In
Bessemer Trust Co., N.A. v. Branin
, ranin was a former executive ofBrundage, who sold its assets, including its good will, to Bessemer for $75million in August, 2000, with $50 million of the purchase price being payableup front, and the remaining $25 million being contingent on Bessemer and its
When Helping a New Employer SoliciYour Former Clients May Not Be“Improper” 
Last month, it was reported that an eighth grade student ound a lighterin a school bathroom, and then, while the rest of the class was watching avideo, decided to light a fellow student's pants on fire.nd the school didn't report the incident to the police until the next day.To be sure, the mere fact that it would enter anyone's mind to undertakesuch an offensive and violent action is downright frightening. But theschool's lack of response to this incident is - on some level - erhaps evengreater cause for concern, and here's why:
The school was apparently looking out for its own self interest beforethat of its students.
I have to believe the school recognized that this incident was serious, ifonly because a contrary truth would be patently absurd. Therefore, theonly reason I can divine for the school's failure to report this incidentromptly was the school's fear that an investigation could have negativerepercussions for the school, perhaps being found guilty ofnegligentsupervision. And in so doing, they made something very clear: the schoolputs its students' safety second. And that is simply unacceptable.
I
N S I D E
T
H I S
I
S S UE
1
Why One School Didn’t Reportto the Police a Student Who Lita Classmate on Fire
1
When Helping a NewEmployer Solicit Your FormerClients May Not Be Improper
2
What the Courts May Do Whenthe Plaintiff Can’t Rememberthe Accident
3
Free Book! 3 Reasons YourEmployment Agreement MayBe Worthless
4
Lead Paint Violation PromptsRecall of Toy Story 3 BowlingGame
Why One School Didn’t Report to the Policea Student Who Lit a Classmate on Fire
Continued on page 3
 
 Monthly Newsletter May 2011Volume 3Issue 5
For more articles, reports, videos, news and analysis on these and other important legal issues
Visitour Web Site at
www.
JonathanCooperLaw.
com
“How Do You Manage AllThose Kids?”
For those of you who aren’t inthe know, my wife is due togive birth at the end of thismonth. In case anyone iskeeping score,well, onsecond thought, never mind.Let’s just say it isn’t our first.When Ive shared thisinformation with any numberof my colleagues and friends,invariably one of the firstquestions I’m asked is “How doyou manage all of thosechildren?”Fortunately for me (and mychildren), the harder parts ofit are handled by a far moreskilled parent –
my wife
.Therefore, in honor ofMother’s Day, I dedicate thisissue of my firm’s newsletterto my wonderful wife, Lauren.
 
 May 011 Newslette
Page 2
What the Courts May Do When thePlaintiff Cannot Remember the Accident 
This publication is intended to educate small businesses and individuals about general litigation matters,as well as personal injury and defective product issues. It is not intended to be legal advice, and does notconstitute an attorney-client relationship until we have a written agreement. To discuss your particularissues or case, please contact the Law Offices of Jonathan Cooper at 516.791.5700.
Law Offices of Jonathan M. Cooper
Long Island483 Chestnut StreetCedarhurst, NY 11516516.791.5700New York City135 West 29
th
StreetSuite 801New York, NY 10001(By Appt. Only)
We Appreciate YourReferrals!
 
We strongly encourage thereaders of our monthlynewsletter to provide feedbackabout issues they would like tosee addressed in our futurepublications.To do so, please contact usthrough our website,www.JonathanCooperLaw.comor via e-mail atjmcooper@jmcooperlaw.com
Contrary to popular belief, a plaintiff does not necessarily have totake the witness stand at trial in order to sustain his or her burdenf proof in a negligence case; some examples of where thatoctrine is applied include cases where the plaintiff was eitherseverely injured in a manner that damaged his memory - r killed.In those cases, the court may hold a plaintiff to a lesserevidentiary standard - and even shift the burden of proof to thedefendant.The seminal case on this issue is the 1948 case of
Noseworthy v.City of New York
, 298 N.Y. 76, 80 N.E.2d 744 (1948). In that case,the plaintiff- ecedent was killed by a subway car belonging to theCity of New York, and was therefore (obviously) unable to testifyas to why he was on the subway tracks before the incident; to thecontrary, this information was solely in the defendants' possession.his rule has been specifically extended to cases involvingamnesia. For example, in
Sala v. Spallone
, 38 A.D.2d 860 (2d Dept.1972), one of New York’s appellate courts stated as follows:“The trial court committed reversible error indenying plaintiff's request to charge the jurythat he should be held to a lesser burden ofproof if the jury is satisfied, from the medicaland other evidence presented, that he suffersfrom a loss of memory that makes it impossiblefor him to recall events at or about the time ofthe accident and that the injuries he receivedas a result of the accident were a substantialfactor in causing his memory loss.”To be clear, however, before a plaintiff may avail him or herself ofthe "
Noseworthy 
harge," it must be shown by clear and convincingevidence that the plaintiff's loss of memory mak s it impossible forthe plaintiff to recall the events of the incident.This is not - by any means - an easy burden.
“Before a plaintiff may avail himself of “the Noseworthy charge,” it must be shown by clear and convincing evidence that the plaintiff’s loss of memory makes it impossible for him to recall the events of the incident.” 
 
 May 011 Newslette
Page 3
principals meeting certain performance benchmarks. Branin, who was Brundage’slargest individual shareholder, received just over $9 million as his share of thesale. Branin continued to work for Brundage for just under 2 years, at which pointhe sought different employment.Although Branin did not have any writtennon-compete agreementbarringsolicitation of former clients (which, given the magnitude of the asset purchaseagreement is, to say the least, rather puzzling), he went out of his way not toactively solicit any of his former clients that were part of the asset purchaseagreement when he finally left in June, 2002. In fact, he didn’t even tell any ofthose clients he was leaving; rather, when these clients contacted Braninprivately, he informed them that he was pursuing work with a different firm inthe field because this new firm’s operating philosophy “was more appropriate forhim.”Some clients, including his largest one, went out of their way to follow him, andleft Bessemer. And this lawsuit followed. In response to a question posed by afederal appeals court, New York State’s highest court concluded its opinion asfollows:“The issue in which the Second Circuit seeks our guidance is to what degree aseller may assist his new employer in responding to inquiries made by a formerclient … e conclude that certain activity within a new employer’s firm must bepermissible … While a seller may not contact his former clients directly, he may,“in response to inquiries” made on a former client’s wn initiative, answer factualquestions a seller’s “largely passive” role at [a client] meeting does notconstitute improper solicitation in violation of the “implied
covenant.”To my thinking, this is a good and logical rule.
“While a seller may not contact his former clients directly, he may, in response to inquiries made on a former client’s own initiative,answer factual questions.” 
3 Reasons That Your Employment Agreement ay Not Be Worth the Paper It’s Printed On
(And How to Get Around Them)
by Jonathan M. Cooper
his
FREE Book,
hich explains some of the most common ins and outsof employment agreements in New York, including non-compete and non-solicitation clauses and
why there are often not enforceable u der NeYork law 
is available for download directly from:
www.EmploymentContractBook.com
When Helping olicit Your Former Clients ay Not Be Imprope
cont’d from page 1
COMMUNICATION POLICY 
:
As a general rule, Mr. Cooper does not accept unscheduled phone calls. This polic a ordsr. Cooper the abilit to pa closer and more ocused attention to each case, resulting in more e icient and e ective representation orhis clients. Moreover, it avoids the endless and needless game of phone tag played by most businesses and law firms. To schedule ahone call or in-person appointment with Mr. Cooper, please call his office at 516.791.5700.

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