Posts tagged with "legal"

Connecticut School Districts and Bullying: What Can Parents Do?

I was greeted this morning with a very unfortunate email.  The email concerned bullying in Westport Schools and included a heart wrenching video of an 8th grade girl claiming to be a victim of bullying in Westport schools. (http://patch.com/A-gcKG) It is just not enough to feel sorry for this victim of bullying, we need to question the effectiveness of the current law and policies in place to avoid the tragic consequences that other towns have dealt with because their students were victims of bullying.

I previously blogged about the revisions to Connecticut’s law against bullying in 2008.  Under Connecticut General Statute section 10-222d, the law requires “any overt acts by a student or group of students directed against another student with the intent to ridicule, harass, humiliate or intimidate the other student while on school grounds, at a school sponsored activity or on a school bus, which acts are committed more than once against any student during the school year.” In addition to definitional changes, the statute requires:

  1.  teachers and other staff members who witness acts of bullying to make written notification to school administrators;
  2. prohibits disciplinary actions based solely on the basis of an anonymous report of bullying;
  3. requires prevention strategies as well as interventions strategies;
  4. requires that parents of a student who commits verified acts of bullying or against whom such bullying occurred be notified by each school and be invited to attend at least one meeting;
  5. requires school to annually report the number of verified acts of bullying to the State Department of Education (DOE);
  6. no later than February 1, 2009, boards must submit the bullying policies to the DOE;
  7. no later than July 1, 2009, boards must include their bullying policy in their school district’s publications of rules, procedures and standards of conduct for school and in all of its student handbooks, and
  8.  effective July 1, 2009, boards must now provide in-service training for its teacher and administrators on prevention of bullying.

Westport responded to the requirements of this statute with a comprehensive bullying policy which can be found on the school district’s website under the tab for parents, and then selecting policies.  Here is the direct link to the policy: (http://www2.westport.k12.ct.us/media/policies/prohibition_against_bullying_5131.911_revised_8.25.2008.pdf)

Armed with Connecticut’s law and Westport’s policy, what should we do as parents, community members, and professionals?  I do not profess to have the answers but at a minimum, we should discuss this with our children, question the school administrators, guidance staff and teachers. Together we should challenge ourselves to make a difference using the channels available to us.  There are ways that we can help to effectuate change before it is too late.  If you know of a child affected by bullying, please act on their behalf.  Not every student will post a video to tell you this is happening. If the school is not addressing the bullying in a meaningful way to eradicate the conduct, legal redress is available and the courts will readily intervene.

If you have any questions please feel free to contact me by telephone in the Firm’s Westport office at (203) 221-3100 or by e-mail at SMaya@Mayalaw.com. Attorney Maya is a partner at Maya Murphy, P.C. Her practice is limited to Education Law and Trusts and Estates.

Bullying In Schools: Are We Doing Enough to Protect Children?

Bullying In Schools: Are We Doing Enough to Protect Children?

On September 22, 2010, Seth Walsh should have been skateboarding or playing baseball, listening to his new favorite song, perhaps, or talking on the phone with friends.  He should have been happy and care free.  After all, Seth was only thirteen years old, an age when children should be laughing and dreaming of the endless opportunities that lie ahead.  Instead, Seth Walsh was lying beneath a tree in his backyard unconscious, no longer breathing.  He had just hung himself.  After spending the next week on life support, with his mother looking on, Seth ultimately died.

And just days earlier on the other side of the country, Tyler Climenti, an eighteen year old student at Rutgers posted what would be his last Facebook message, “Jumping off the gw bridge sorry.” Later that night Tyler took his own life as well- throwing himself into the dark and frigid water of the Hudson River.

In September, 2010, within nineteen days, four teenagers from around the country committed suicide.  William Lucas, from Greensburg Indiana was only fifteen, Asher Brown from Houston Texas was thirteen.  Like Seth, Billy hung himself.  Asher shot himself in the head with one of his step-father’s guns.  The common link?  All four had been relentlessly tormented at school.  Shining new light on what has become a national epidemic, these cases illuminate the devastating and increasingly deadly effects of bullying.  There is some debate over whether bullying is a new phenomenon or whether children are simply reacting differently.  Whatever the case may be, one thing is clear- we must take action to protect the destruction of more innocent lives.

The Department of Education recently entered the fray, releasing a “Dear Colleague” letter in which it urged school districts to address bullying within the classroom, providing school administrators with guidance on how to end harassment.  Additionally, within the last couple of years, many states, including New York and Connecticut, have passed anti-bulling legislation.  At what point should a school district be held liable when it fails to prevent bullying?  The answer to that question is not clear-cut.  Indeed, parents face several legal challenges when they pursue a case.

For instance, in 2008, the Superior Court at New Britain held that parents of a Berlin High School student could not maintain a negligence cause of action against the school district, the administrators or the child’s coach.  In Dornfried v. Berlin Board of Education, et al, Robby Dornfried’s parents alleged that while a freshman and sophomore at the high school, and a place-kicker on the varsity football team, their son was subjected to “incessant bullying, harassment, intimidation and was the victim of threats and/or acts of violence” by his teammates.  They further alleged that school administrators, the guidance counselor, even Robby’s coach, knew of the problem, but did nothing to stop the behavior.  Robby eventually sought medical treatment and ultimately transferred to Northwest Catholic High School halfway though his sophomore year.

Analyzing whether the principal of governmental immunity barred suit, the Court recited the general rule that a municipal employee may be liable for the misperformance of ministerial acts, but has qualified immunity in the performance of governmental acts- those performed wholly for the benefit of the public and supervisory or discretionary in nature.  Agreeing with the defendants, the Court found that the supervision of school children, not only during school hours, but at extra-curricular events such as football practice or a football game is a discretionary matter.  It next addressed whether it was appropriate to apply any of the exceptions to the immunity doctrine.  Generally, there are three:

  1. Liability may be imposed for a discretionary act when the alleged conduct involved malice, wantonness or intent to injure.
  2. Liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws.
  3. Liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.

Ignoring the first two exceptions, the Court addressed whether Robby was an “identifiable person subject to imminent harm” under the law.  Citing Supreme Court precedent, Judge Trombley, found he was not, explaining the only identifiable class of foreseeable victims the courts have recognized is that of school children attending public schools during school hours.  The Court ultimately held that although participation in school sponsored athletic programs is most likely encouraged, the participation is on a purely voluntary basis and, therefore, governmental immunity barred Robby’s negligence claims.

Earlier this year the Superior Court at New Haven reached a different conclusion in a bullying case.  In Esposito v. Town of Bethany, et al, the father of an elementary school student brought suit against the Town of Bethany, the Board of Education and the Bethany Public School District alleging negligence.  The student, Christina, was allegedly teased on a regular basis and at one point another student threw a ball at the back of her head during recess.  Christina sustained severe injuries “leaving her with an acquired brain injury and severe optical dysfunction.”

In response to Connecticut’s anti-bulling legislation, which became effective July, 2002, the Town of Bethany adopted a comprehensive anti-bullying policy.  The Plaintiff’s pointed to that policy arguing that the school failed to follow it and, thus, their acts were ministerial rather than discretionary in nature.  The Court framed the issue as whether, “…a detailed method of behavior was laid down for administrators and teachers for dealing with bullying depriving them of any judgment or discretion, or that, actions were dictated to deal with the problem that involved merely the execution of an established policy.”  Leaving this question unanswered, the Court ultimately erred on the side of caution, allowing the plaintiff an opportunity to present the facts at trial.

Later in its decision the Court addressed whether the “identifiable person subject to imminent harm” exception would apply if the school’s actions were in fact discretionary.  In doing so, the Court hinted at expanding its view of the doctrine in the context of school bullying.  The Court interpreted prior case law as suggesting that the only identifiable class of foreseeable victims is that of school children attending school during school hours, but went on to suggest, “[b]ut if a clearly identifiable person, child or adult, is exposed to imminent harm then the exception could apply also if that individual is exposed to imminent harm,” continuing, “an individual may be identifiable for purposes of the exception to qualified immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition.”

In ruling in Christina’s favor, the court also noted that the appellate courts have relaxed the “identifiable person” portion of the analysis as it pertains to school children stating simply, “they are a foreseeable class to be protected.”  The Court concluded it must assume a similarly protective attitude will be applied in examining the “imminent harm” requirement stating, “bullying is condemned by state statute, children must attend schools, children are not as capable of defending themselves, they are vulnerable in the entire school area where unsupervised conduct prevails, and the bullying concept includes… a particular child subject to these acts.”

Whether a victim of bullying will be successful in bringing a claim against a school district will depend heavily on the facts and circumstances of the case as well as the theory of liability, the state in which the claims are made and the causes of action asserted.   As set forth above, in Connecticut governmental immunity may preclude recovery altogether unless the victim can demonstrate the application of an exception is appropriate.

By: Michael D. DeMeola

If you have any questions regarding bullying in schools, or any special education law matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

Litigating Non-Compete Agreements in Connecticut

In Connecticut, the breach of an employment agreement by an employer is a recognized defense to the enforcement of a covenant not to compete. The breach must be material. For example, if the employee were promised a bonus or stock options and the employer refused to honor the promise. In order for the breach to effectively waive the non-compete restriction, the employee must timely object to the breach by the employer, otherwise the breach is waived. For more information, or to discuss an employment contract, non-compete, stock options, or bonus situation with an attorney, please contact Joseph C. Maya, Esq. at JMaya@Mayalaw.com or (203) 221-3100.

Continue Reading

Litigating Non-Compete Agreements in Connecticut

In Connecticut, the breach of an employment agreement by an employer is a recognized defense to the enforcement of a covenant not to compete. The breach must be material. For example, if the employee were promised a bonus or stock options and the employer refused to honor the promise. In order for the breach to effectively waive the non-compete restriction, the employee must timely object to the breach by the employer, otherwise the breach is waived. For more information, or to discuss an employment contract, non-compete, stock options, or bonus situation with an attorney, please contact Joseph C. Maya, Esq. at JMaya@Mayalaw.com or (203) 221-3100.

Continue Reading

Child Visitation: Privileges and Limitations

Parties entering a custody dispute or a divorce proceeding often inquire about visitation privileges by the so-called “non-custodial parent” – that is, the parent whose home is not the primary residence of the minor child.

Entirely separate from the determination of legal custody (which relates to the parties’ arrangements for major legal decisions to be made for and on behalf of the minor child) is the subject of a visitation arrangement, also sometimes referred to as a “parental access plan.” Regardless of which parent is awarded legal custody, a non-custodial parent has a right to visit with his or her child, although such visitation is not guaranteed to be unfettered and unrestricted in all circumstances.

In the best case scenario, the parties or their lawyers may arrange for “flexible, liberal rights of visitation” for the non-custodial parent, which might mean that the parties work out their access schedule amongst themselves, rather than reducing the intricacies of a schedule to writing. In some instances, the parties might follow a broad-brush, general guideline for visits and holiday scheduling which ebbs and flows according to the parties’ schedules and the child’s activities and needs.

On the other end of the spectrum, visitation by a non-custodial parent can be suspended, temporarily denied, or restricted in some fashion by a court if it is found that a parent’s visitation with a minor child would be adverse to that child’s best interest. If it can be demonstrated in a court of law that a child’s personal safety, physical, mental, or emotional well-being, would be negatively and seriously impacted by visitation with a parent, it is likely that such a parent’s visitation will be severely limited, if not suspended entirely.

However, any restriction of a parent’s ability to spend quality time with his or her child is not taken lightly – not by attorneys, and not by the courts. Before taking such drastic measures, courts will look for compelling, factual predicates based on very specific, presently existing circumstances. Before any type of restriction on visitation, a non-custodial parent has a right to a full evidentiary hearing, an opportunity to present and cross-examine witnesses, and a chance to argue to a court that the custodial parent has not established that continued, unlimited visitation would be injurious to the minor child’s best interests.

There are limited situations in which courts deem it appropriate to deny visitation entirely; others in which visitation is restricted in time, place, or manner; still others in which visitation is required to be supervised by a third party, such as a family member or an independent agency.

Obviously, acts or omissions by the non-custodial parent which have directly impacted the child (such as cases of physical abuse, or outright neglect for the child) are looked at most critically and could potentially result in the most drastic of remedies to protect a minor child.

Of course, there are certain other factors which could – in isolated cases – result in restricted visitation by a non-custodial parent. Violence or the threat of violence on the part of the non-custodial parent will be considered as an important factor, provided the evidence offered is competent and survives judicial scrutiny. In very extreme cases only, a mental illness or a psychiatric condition could impact visitation time, but only where it is established, proven, and accepted by a court that there would be harm to the child as a result of the illness if visitation were to take place.

More commonly, issues concerning substance and/or alcohol abuse could and may impact visitation by a non-custodial parent, especially where the behavior is found to be likely to jeopardize a minor child’s welfare. Even in these cases, with the best interests of the child in mind, courts are likely to favor a continued, healthy and loving relationship between the minor child and his or her non-custodial parent, provided that the visitation environment is such that the child will not be harmed or put at risk.

Whether a visitation arrangement will be “flexible and liberal” or heavily regulated is dependent on the factual circumstances of each case, the weight of the evidence, the credibility of the parties and their witnesses, and what is determined by a court to be the best interests of the minor child or children. A legal advisor in this area is challenged not merely to advance a client’s desires, but to simultaneously consider and protect the welfare of the minor child (and the parent-child relationship) when advising his or her client.

Any questions about this posting or confidential inquiries concerning the subject matter, may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.
________________________________________________________________________________
Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

Keywords: divorce attorney ct, divorce attorneys in ct, divorce attorneys ct, divorce attorney Connecticut, Connecticut divorce attorney, divorce attorney, divorce attorneys NYC, ct lawyers, Connecticut family attorney, divorce lawyer in ct, free divorce consultation, free consultation family law, divorce in ct, free consultation family law, Connecticut divorce lawyer, divorce attorney for men, divorce attorney for women, free divorce attorney, divorce lawyers in ct, ct divorce laws, ct divorce attorney, family law firm, divorce attorney Fairfield, attorneys in Connecticut, family law office, ct divorce mediation, best divorce attorney in ct, lawyers in ct, uncontested divorce, divorce lawyer nyc, Connecticut divorce laws, best divorce attorney, divorce attorney Hartford, new haven divorce attorney, divorce, lawyer, attorney, law firm ct, law office, legal advice in ct, ct divorce attorneys, family attorney, domestic violence rights, Connecticut, marital property rights, CT divorce mediation, legal separation Connecticut, child custody laws, child support litigation, contested, uncontested, annulments, alimony, mediator, spouse, spousal support law, asset division, visitation right, premarital agreements, prenup, prenuptial agreement, prenup NY, restraining orders, appeals, custody modifications, legal separation CT, prenup in CT, custody in CT, filing divorce in CT, filing, lawyers, attorneys, family law in CT, family in NY, Connecticut divorce attorney, divorce law NY, matrimonial law CT, custody NY, child custody CT, property division in CT, dissolution of marriage in CT, marriage, divorce NY, New York divorce, visitation in CT, visitation rights in CT, post marital agreements, divorce law firm CT, divorce law firm NY

Continue Reading

Not So Fast: Connecticut Courts Consider Length of Marriage – Not Courtship or Cohabitation – When Determining Awards in Divorce

At the outset of a divorce proceeding, many clients will ask what they might expect from a court – or in a settlement agreement – in connection with alimony or the division of marital assets. One of many statutory factors a court may consider in fashioning support orders or property distribution is the length of the parties’ marriage. See C.G.S. § 46b-81, 82. With increasing frequency over the past several decades, however, many parties may enter a divorce proceeding with a significant period of time before the marriage during which the parties lived together as unmarried people – sharing home expenses, purchasing assets together, and accumulating marital wealth (or debts). The common expectation is that a judge would consider not just the length of the parties’ marriage, but also the length of time they lived together as unmarried people when determining what awards would be appropriate in a divorce. The law, however, takes a sharply different view.

Like many other states, Connecticut does not recognize common-law marriage as a matter of public policy. Indeed, the law “has been construed to require the marriage contract to be entered into before authorized persons and with certain formalities which the state has prescribed.” Hames v. Hames, 163 Conn. 593 (1972). Although two persons might cohabit and conduct themselves as a married couple, the law of this state neither grants to nor imposes upon them marital status. McAnerney v. McAnerney, 165 Conn. 277 (1973). Cohabitation by unmarried individuals does not in and of itself create any legal or support obligations. Boland v. Catalano, 202 Conn. 333 (1987).

Given the clear distinction in the common law between marriage and cohabitation, and in awarding greater rights and protections to people who make the formal legal commitment of marriage, the Supreme Court has determined that it would be incongruous for a divorce court, when entertaining financial orders, to take into account a period of premarital cohabitation as an additional equitable consideration. Loughlin v. Loughlin, 280 Conn. 632 (2006).

In other words, neither party in a divorce action may seek additional protections, rights, or awards from the court based simply on the length of time the parties had lived together prior to their marriage. Nevertheless, the Loughlin holding has left a window of opportunity open – however narrow – which might allow a court to consider “events” that occurred during the period of cohabitation as “indirectly” bearing on other statutory criteria for awards of support and equitable distribution (such as the health, station, occupation, amount and sources of income, vocational skills, and employability of the parties). Only a court’s strict consideration of premarital cohabitation as part of the “length of marriage” in a dissolution action is improper and prohibited by law.

In the event that your marriage was preceded by a significant period of premarital cohabitation, you should consult with a knowledgeable and experienced attorney to determine your rights in a divorce action. Any questions about this posting or confidential inquiries concerning the subject matter may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.
________________________________________________________________________________
Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

Keywords: divorce attorney ct, divorce attorneys in ct, divorce attorneys ct, divorce attorney Connecticut, Connecticut divorce attorney, divorce attorney, divorce attorneys NYC, ct lawyers, Connecticut family attorney, divorce lawyer in ct, free divorce consultation, free consultation family law, divorce in ct, free consultation family law, Connecticut divorce lawyer, divorce attorney for men, divorce attorney for women, free divorce attorney, divorce lawyers in ct, ct divorce laws, ct divorce attorney, family law firm, divorce attorney Fairfield, attorneys in Connecticut, family law office, ct divorce mediation, best divorce attorney in ct, lawyers in ct, uncontested divorce, divorce lawyer nyc, Connecticut divorce laws, best divorce attorney, divorce attorney Hartford, new haven divorce attorney, divorce, lawyer, attorney, law firm ct, law office, legal advice in ct, ct divorce attorneys, family attorney, domestic violence rights, Connecticut, marital property rights, CT divorce mediation, legal separation Connecticut, child custody laws, child support litigation, contested, uncontested, annulments, alimony, mediator, spouse, spousal support law, asset division, visitation right, premarital agreements, prenup, prenuptial agreement, prenup NY, restraining orders, appeals, custody modifications, legal separation CT, prenup in CT, custody in CT, filing divorce in CT, filing, lawyers, attorneys, family law in CT, family in NY, Connecticut divorce attorney, divorce law NY, matrimonial law CT, custody NY, child custody CT, property division in CT, dissolution of marriage in CT, marriage, divorce NY, New York divorce, visitation in CT, visitation rights in CT, post marital agreements, divorce law firm CT, divorce law firm NY

Continue Reading

Court Denies Injunction Against Former IBM Executive

By:  Michael D. DeMeola, Esq.

Early in the morning of January 19, 2011, Mr. Visentin notified IBM that he was leaving the company to work for a major competitor- Hewlett-Packard.  Just one day later, he found himself the subject of a lawsuit.  On January 20, 2011, in an effort to enforce the parties’ noncompetition agreement, IBM filed suit against Mr. Visentin, a former executive, in the United States District Court for the Southern District of New York, claiming breach of contract and misappropriation of trade secrets.  On January 24, 2011, the Court issued a temporary restraining order, and scheduled the case for a preliminary injunction hearing.  Within five days of providing IBM with notice of his departure, Mr. Visentin was effectively without a job, precluded- at least temporarily- from engaging in his newly secured position.  This case demonstrates not only the force, speed and agility of a large corporation’s legal team, but perhaps more importantly, illustrates the effectiveness of a quickly orchestrated and well-executed legal defense.

Prior to his resignation, Mr. Visentin worked for IBM in various capacities for twenty-six years.  In 2006, he became a Global Vice President in the company’s Integrated Technology Services Group (ITS).  Then, in September, 2007, he became General Manager of the ITS business.  Responsible for providing its clients with various technology services, including services to improve data storage and recovery capabilities, protect networks from viruses, and implement data security systems, this segment generates approximately five thousand to nine thousand deals per quarter, and total revenue of $2.5 billion annually.  In December, 2008, Mr. Visentin was appointed to IBM’s Integration and Value Team, a leadership group that develops IBM’s corporate strategy.  Although there were technical aspects of Mr. Visentin’s various positions, after hearing four days of testimony, the Court found that he was a business manager, not a technical expert.

As part of his employment with IBM, Mr. Visentin signed two noncompetition agreements, the first on July 16, 2008 and the second on July 29, 2009.  The July 29th agreement essentially provided that during his employment with IBM, and for 12 months thereafter, he would not directly or indirectly engage in or associate with any competitors of the company.  Mr. Visentin also agreed to a restrictive covenant precluding him from soliciting IBM clients for a period of one year, and IBM employees for a period of two years.

IBM’s first argument was that if Mr. Visentin were allowed to work for HP, IBM would be irreparably harmed because Mr. Visentin’s new position posed the risk that he would inevitably disclose confidential IBM information.  IBM argued that Mr. Visentin possessed a plethora of confidential information including strategic business and marketing plans, “strategic initiative,” new service offerings, acquisition plans, the operational finances of the ITS business, IBM’s competitive business and pricing strategies, the identity of new client targets, the identify of troubled clients, and IBM’s competitive strategies to attack HP.

In denying IBM’s application for an injunction, the Court first noted that a preliminary injunction is “an extraordinary and drastic remedy which should not be routinely granted.”  Med. Soc’y of State of N.Y. v. Toia, 560 F.2d 535, 538 (2nd Cir. 1977).  Indeed, to obtain a preliminary injunction, the moving party must demonstrate, first, that it will be irreparably harmed if an injunction is not granted, and, second, either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation, as well as a balance of the hardships tipping decidedly in its favor.  Lusk v. Vill. Of Cold Spring, 475 F.3d 480, 485 (2nd Cir. 2007).  To show that it will be irreparably harmed, a movant bears the burden of demonstrating that absent an injunction, it will suffer an injury that is neither remote nor speculative, but rather actual and imminent, and one that cannot be redressed through a monetary award. Payment Alliance Int’l, Inc. v. Ferreira, 530 F. Supp. 2d 477, 480 (S.D.N.Y. 2007).

Next, the Court explained that in New York, properly scoped noncompetition agreements are enforceable to protect an employer’s legitimate interests so long as they pose no undue hardship on the employee and do not militate against public policy.  BDO Seidman v. Hirshber, 712 N.E. 2d 1220, 1223 (N.Y. 1999).  The Court further explained that trade secrets and confidential information are considered legitimate interests; however, only that confidential information or those trade secrets that the employee misappropriates or will inevitably disclose are protectable.  Reed, Roberts Assocs., Inc. v. Strauman, 353 N.E. 2d 590, 593 (N.Y. 1976).

In ruling in Mr. Visentin’s favor, the Court noted that his primary job at IBM was to be a general manager, explaining, “[a]lthough trade secrets may have lurked somewhere on the periphery, the real thrust of his position was to manage his teams to make them as efficient as possible.”  The Court relied on Mr. Visentin’s testimony that he had never taken a computer science course and considered himself a generalist.  Mr. Visentin testified, “I am not technical, I don’t know the details of offerings, I’m more of a general manager and I run a business.”

The Court also relied on the testimony of Mr. Visentin’s new manager at HP, who confirmed that Mr. Visentin’s generalist qualities were the driving factor behind his hiring.  Mr. Visentin’s future manager testified that he hired Mr. Visentin because, “he had good general IT services knowledge [and] broad experience,” and that Mr. Visentin struck him, “as a process-oriented thinker, a guy who could sort of connect the dots, if you will, of the overall responsibilities of the job.”  He also testified that Mr. Visentin’s job would not include involvement in technical services, but rather would be to “manage people.”

Although IBM identified numerous types of information potentially in Mr. Visentin’s possession which it argued should be afforded protection, the court noted that much of the information is either applicable to all large corporations, in the public domain, or outdated, and, thus, does not constitute “trade secrets.”   The court also explained that simply showing Mr. Visentin had access to some confidential information does not sufficiently demonstrate irreparable harm.  IBM failed to provide specific examples of confidential or trade secret information that could actually be used to its detriment if Mr. Visentin were allowed to assume his new position at HP.  The Court further held that IBM failed to demonstrate Mr. Visentin’s position at HP would require him to disclose any confidential IBM information he might remember.

Attorney DeMeola is an associate in Maya Murphy, P.C.’s Litigation Department, practicing primarily in the areas of Labor/Employment Law and Civil Litigation.  He can be reached by telephone in the Firm’s Westport office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.