Monthly Newsletter September 2011 Volume 3 Issue 8

Denied Maternity Leave, NY Woman Sues Employer for Breach of Contract After Bullied Student Retaliates, High School Responds by Expelling Him One Way (Albeit Rare) to Recover Your Legal Fees in NY: “Frivolous Conduct” Check Out Our New Website! When New York’s Courts Will Uphold Liquidated Damages for Breach of a Non -Compete

Denied Maternity Leave, NY Woman Sues Employer for Breach of Contract
Kudos to you, ABC, for bringing this story to light. And shame on you, Cubist Pharmaceuticals, for your discriminatory narrow-mindedness. Kara Krill who works for Massachusetts-based Cubist Pharmaceuticals, recently had twin children via a surrogate. She was compelled to have these children through a surrogate because she had health issues that prevented her from having children in the conventional manner. Naturally, she was overjoyed when she learned that the surrogacy resulted in the anticipated birth of not one – but two children. That is, until the HR department at her employer responded that she would be denied the 13 full weeks of paid maternity leave that was set forth in their written policies, and instead would be granted only a 5 day leave of absence that is traditionally reserved for children that are adopted, or for fathers seeking paternity leave. Moreover, according to Krill, one of her bosses commented that she should “‘put [her] twins in daycare,’ so she could come back to work sooner.’” Mrs. Krill has now sued her employer in federal court, claiming that her employer has breached their contract, and their covenant of good faith and fair dealing, and has openly discriminated against her based upon her disability. I, for one, am rooting for her.

Counting Your Blessings
I’m sure I’m not alone in this sentiment, but in the aftermath of that “Lady” Irene, I am truly fortunate that my home did not sustain significant damage, and more importantly, that my family remained safe and sound. But there was another incident that happened a few weeks ago to me that does stand out. While my wife and kids were out of the house visiting with family that was in from out of town, and I was returning home from a quick errand, I walked in on a teenager who was rummaging through my house trying to steal our stuff. When he heard me, he was startled, and ran right past me out the door. He made off with my son’s video game. Nothing more. And, more importantly (thank G-d), none of my family was harmed.

After Bullied Student Retaliates, High School Responds by Expelling Him
If this story is true - and, I must admit, this student's version of events certainly sounds credible - this may be one of the more disturbing stories about school bullying that I've heard. In a case that was reported in Baltimore several weeks ago, a high school student was apparently expelled from his school just prior to graduation based upon his attempt to put and end to the repeated, continual bullying he had suffered. More specifically, after years of being tormented both physically and
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September 2011 Newsletter
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One Way (Albeit Rare) to Recover Your Legal Fees in NY: “Frivolous Conduct”
As noted elsewhere (see, e.g., “Why It’s So Hard to Recover Legal Fees in a NY Breach of Contract Case“), the general rule in New York is that you cannot recover the costs you’ve incurred to defend a lawsuit that has been brought against you. Of course, there are some exceptions to that rule, the most prevalent being where the two sides to the litigation had previously entered into a written agreement that provided for either side to recover their legal fees. There is another limited exception to that rule: where the court determines that your adversary has engaged in “frivolous conduct.”

“You should never assume that a court will make you whole for defending a lawsuit that you personally deem ‘frivolous.’”

So what constitutes “frivolous conduct” under New York law? Fortunately, it is defined by Uniform Court Rule §130-1.1 (c), which provides, in pertinent part, as follows: (c) For purposes of this Part, conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. As noted in the title to this article, however, it is extraordinarily rare that a New York State court will award costs and/or sanctions against the other side to a particular litigation. Therefore, you should never assume that a court will make you whole for defending a lawsuit that you personally deem “frivolous.”

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Long Island 483 Chestnut Street Cedarhurst, NY 11516 516.791.5700 New York City 135 West 29th Street Suite 801 New York, NY 10001 (By Appt. Only) We Appreciate Your Referrals!

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 not constitute an attorney-client relationship until we have a written agreement. To discuss your particular issues or case, please contact the Law Offices of Jonathan Cooper at 516.791.5700.

September 2011 Newsletter

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Check Out Our New Website!
We are very excited to introduce our new website, which is dedicated business litigation issues, with a particular focus on non-compete agreements, breach of fiduciary duty, and breach of contract. The site is designed to answer even more of the questions we’ve been getting on these issues – so that New York consumers can be better educated about their legal issues – even before they contact a lawyer.
After Bullied Student Retaliates, School Responds By Expelling Him
cont’d from page 1

emotionally for being a "book worm" with a nervous habit, and having the school repeatedly ignore his calls for help, this student finally responded to two of his attackers in a by picking up a screwdriver and threatening: "I've had enough. If you leave me alone, I'll leave you alone." The school's response: they expelled the student who was being bullied; the “It seems very clear that the school – had other students - it seems - were left alone. To be sure, a student who threatens other students with a screwdriver should be severely disciplined - and perhaps expelled. On the other hand, it also appears that he has now been victimized again - but this time by the educational institution itself rather than its student body; in effect, the school has chosen to penalize this student yet again for the school's own negligence in failing to adopt and enforce a zero tolerance policy for bullying. Stated differently, it seems very clear that the school - had it been discharging its responsibility to this student's safety properly – could very well have prevented this incident from occurring. And for that reason - and on policy grounds - I think that the school should be deemed negligent and held accountable as a matter of law. COMMUNICATION POLICY: As a general rule, Mr. Cooper does not accept unscheduled phone calls. This policy affords
Mr. Cooper the ability to pay closer and more focused attention to each case, resulting in more efficient and effective representation for his clients. Moreover, it avoids the endless and needless game of phone tag played by most businesses and law firms. To schedule a phone call or in-person appointment with Mr. Cooper, please call his office at 516.791.5700.

it been discharging its responsibility for this student’s safety – could very well have prevented this incident from occurring.”

September 2011 Newsletter

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When New York’s Courts Will Uphold Liquidated Damages for Breach of a Non-Compete Agreement
Although most non-compete agreements that I've seen do not have such a provision, there are some employers who've gone to the trouble of inserting a clause in the contract stating that in the event that the employee breaches the non-compete (or, in legalese, "restrictive covenant"), he may be liable for a multiple of the billable work generated by the client that over the past year - and that has now been lost to the company/employer. So, here's the question: is such a provision an enforceable liquidated damages clause, or is it an unenforceable penalty insofar as New York law is concerned? Unfortunately, there really isn't a clear-cut answer, or bright-line test because each such clause turns on its own unique facts. That said, New York State's highest court has weighed in on the factors that the courts must look to in order to determine whether the particular liquidated damages clause is enforceable or not, stating: "Liquidated damages provisions, under our precedents, are valid if the "damages flowing from a breach are difficult to ascertain [and under] a provision fixing the damages in advance * * * the amount is a reasonable measure of the anticipated probable harm" (City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470, 473). On the other hand, if "the amount fixed is plainly or grossly disproportionate to the probable loss, the provision calls for a penalty and will not be enforced" (Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 425)."

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