The Court Of Public Opinion

Non-Compete Agreements are controversial documents that restrict a persons right to work with competitors of a former employer. The effectiveness of one such non-compete agreement is on display in a recent lawsuit filed by Microsoft against Google.

Dr. Kai-Fu Lee

Dr. Kai-Fu Lee joined Microsoft in 1998 and was in charge of creating and running company operations in China. Over the last few years, Lee has been working on Microsofts speech recognition system. The system is rumored to be the next big add on for future Windows operating systems. On top of this, Microsoft claims Lee has been responsible for the overall development of the MSN Internet search program. In short, he has intimate knowledge of company trade secrets including technology developments as well as business and marketing planning.

When Non-Compete Agreements Attack

In 2000, Microsoft moved to protect itself by requiring Lee to sign a non-compete agreement. Although not yet public, the agreement undoubtedly requires Lee to forgo employment with any direct competitor of Microsoft. Notwithstanding this agreement, Lee quit this past week upon notifying Microsoft that he was moving to Google.

No doubt infuriated, the powers that be at Microsoft sued Google and Lee in the State of Washington on Monday. Microsoft claims Lee violated the terms of his agreement and seeks an injunction prohibiting him from working at Google. Microsoft also claims that Google is liable for inducing Lee to leave Microsoft, ostensibly for the purpose of discovering Microsoft trade secrets. In turn, Google countersued Microsoft in a California court claiming the non-compete agreement constituted an illegal restraint on trade.

Non-Compete Agreement To Be Upheld?

Predicting the outcome of the dispute is going to depend significantly on a surprising issuejurisdiction. Jurisdiction simply refers to the court system, Washington or California, which has the right to hear the case.

California is a right to work state, which means courts require any non-compete agreements to be very narrow. If the Agreement is broadly worded to preclude Lee from working for direct competitors or some such language, Microsoft will have a difficult time prevailing in a California court. Washington law, on the other hand, would be more likely to uphold such wording.

Determining jurisdiction is a tricky issue. Essentially, one looks to the facts of the disputed to arrive at an opinion. An analysis of jurisdiction is beyond this article, but Google has clearly made a major mistake with Dr. Lee. In a press release announcing the hiring of Lee, Google noted he would be working in China, not California. This significantly damages any claim that California has jurisdiction over the matter. Googles attorneys are undoubtedly unhappy with the individuals in the press relations department.

Ultimately, Google and Microsoft will most likely reach a settlement agreement. Lee will be allowed to work for Google, but will be restricted from working in certain areas. Still, Lees decision to switch positions is a blow to Microsoft.

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Well, it finally happened. I’d been Googled. Not by my friends, but by my adversaries in a medical malpractice wrongful death case.

Their googling apparently caused apoplectic seizures that rippled through the defense firms representing the doctors in my case that was marked final for trial on April 10, 2006 in Kings County, here in New York.

The first inkling of trouble was a telephone call by adversary #1- someone who up until that time, I thought I had a good working relationship with. Gerry, I want to give you a heads-up about an order-to-show cause that you’ll be getting shortly, he said. What’s it about? I asked.

Your website. We want you to shut it down for the duration of the trial, he answered. What are you talking about? I asked incredulously. What could my website possibly have to do with a trial that we’re supposed to start in one week’s time? I stated, having difficulty controlling my tongue and the tenor of my voice.

We think that potential jurors might be prejudiced if they read the material on your website, and that’s why we want you to shut it down, he responded.

Let me digress a moment. On my website which currently gets over 3000 unique visitors per month, I have over 65 articles that I have personally written, I have 200 frequently asked questions, I have 213 links to other resources, and over 285 news articles about verdicts and settlements across the country. In addition, I have posted deposition transcripts of doctors in cases I have handled that are de-identified. I have removed all identifying features in each of the depositions I have posted. The reason I posted these transcripts is to show people what I do, how I do it, and it makes for interesting reading.

If one Google’s my name, Gerry Oginski you will get 953 sites that refer to me and my website, my blog and other writings I’ve posted online. If you take off the quotations, you’ll get 12,500 references to my name. If you do a Yahoo search with the same name in quotations, you will get almost 8,000 sites that refer to my name.

The original Google search that my adversary performed Anesthesia, wrongful death and Oginski revealed his client’s deposition in the very case we were about to try. This was the only posted deposition in an active case. Even though it was de-identified and you could not determine who it involved, he asked me to remove it from my site for the duration of the trial because of the possibility that a juror could find the de-identified transcript while doing a search and read it during the trial. After much debate, and knowing that there is no case law on this topic anywhere in New York, I agreed to voluntarily remove the deposition from my site. You would think that my willingness to be courteous and professional to my adversary would have ended this issue. It did not.

He was still insistent that my website be shut down, because there was material on my site, That if viewed by a potential juror, would prejudice that juror, he wrote in his motion papers.

On April 10, 2006, when we appeared in the Medical Malpractice Trial Ready Part in Brooklyn, NY, my adversary was insistent that the Court shut down my site. He referred to three articles I wrote as being somehow prejudicial: Insurance Companies and how they protect their profits, 5 Typical Defenses in a Medical Malpractice Case, and Medical Malpractice: 10 Reasons Why Most Victims Won’t Recover a Dime. The last article he cited because I include discussions about jurors biased by the insurance industry, the plaintiff’s inability to hire good qualified experts, and the basic premise that ‘juries like doctors’.

Defense counsel’s arguments were, impressively, based on total speculation. He argued that a potential juror might ignore the trial judge’s instructions not to discuss the case with anyone, that he might go online and perform a search about the attorneys or the topic involved in the case, that he would actually find information about the case, and that he might be prejudiced by reading such material. He wrote:

We live in the ‘Google’ world where nearly everyone has access to the internet and many people perform internet searches as a means of obtaining information. Jurors, in fact, often attest to a desire to ‘research’ the issues or attorneys on the internet. As a result, it is possible or even likely, that at least one juror (or prospective juror) will review the above-describe prejudicial materials on the plaintiff counsel’s web siteWhile an admonishment could be given by the trial judge, it is submitted that that would more likely result in an invitation to go to the aforementioned web site and provide a road map on how to get there.

He also argued,

the limitation on free speech must apply to written statements disseminated by plaintiff’s counsel in a medium known to be viewed by prospective jurors, such as the website of plaintiff’s counsel in the very matter set to be tried before them.

My argument was simple:

1. Shutting down my site would have absolutely no effect on a juror intent on ignoring the Court’s instructions from doing online research,

2. All of the material posted on my website is freely available on the internet, and was originally posted on the internet first, and then added to my site later,

3. If the Court felt compelled to shut down my site, then logically, it would have to shut down every lawyer’s website (including all defense attorneys) in every case that came on for trial in every County in the State of New York. (The Courts’ response was, I think, facetious, Maybe I will have to shut down every lawyer’s site)

4. Shutting down my website would not only be unconstitutional- a judicial lockdown of my right to free speech, but would create undue hardship financially since I receive all of my direct cases from my online presence,

5. The information posted online is truthful and provides consumers with abundant information they need to know before they hire an attorney,

6. The Courts’ curative instruction to any potential juror would be all that was needed to address potential extracurricular research on the attorneys or the topic involved in the trial,

7. A decision that required me to shut down my site, regardless of the duration, would have significant implications in the legal community, and would simply make bad law.

The Court initially wanted to have the trial judge address this issue in chambers, before starting the trial. However, with persistent urging by the defense, he relented and agreed to render a decision on this novel issue 60 days after receiving opposition papers. Because of this personal attack on my website, the trial would not proceed forward until this issue was resolved.

UPDATE

With anticipation building, and only two weeks to go before the Brooklyn Trial Judge rendered a decision on whether to shut down my website, I settled the underlying malpractice case.

With a window of opportunity quickly closing, my adversary finally got serious about settlement negotiations. I’m happy to report that we settled this wrongful death case just before the Court rendered a decision.

This means that the Court no longer has the opportunity to render a decision about whether to shut down my website. Unfortunately, this does not prevent defense counsel in other cases from making the same kind of ridiculous argument as was made in my case.

The argument was absurd- that potential jurors would ignore the trial judge’s instructions and go online to do research about the lawyers and the medicine involved in the case. The defense felt that this would somehow prejudice a potential juror from fairly deciding the case. Nonsense. We are all inundated with information every day, whether by newspaper, radio, advertisements, magazines, and the internet, so that selectively shutting down one website would, in my opinion, be meaningless. This was just another attempt to delay a meritorious case. What will defense attorneys think of next?

I read an online comment recently by an attorney who read what was happening with my website. He suggested that the lawyers should each have the ability to shut down three websites of their choosing, instead of having three choices to remove jurors during jury selection. Excellent idea!

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