Sullivan & Cromwell v. Charney: Hearing Highlights (Part 1)
We got enough material from this morning's hearing in Sullivan & Cromwell v. Charney to fill several posts. Eventually we'll do something for more organized (and fashion-focused).
For now, in no particular order, here are some highlights. We will update this list until we feel this post is "complete" (and then we'll open a new thread).
We're publishing this post now, and updating it constantly, to get you info as quickly as possible. Refresh your browser for the latest.
1. In addition to Zachary Fasman of Paul Hastings, Sullivan & Cromwell is now represented by Charles Stillman -- a veteran litigator described by the New York Times as "known for representing clients with intricate legal difficulties." S&C would seem to fit the bill.
Stillman took the lead in speaking for S&C at this morning's hearing. Zach Fasman spoke only a handful of times. S&C litigation head David Braff, although seated at counsel table, was completely silent (and sans feather boa).
2. Plaintiff Aaron Charney was nowhere to be found at today's hearing. Darn! We wanted to see him in the flesh. But his absence is understandable -- some awkward moments would have arisen had he been around to be questioned (or, if not questioned, at least stared at during the many moments of factual ambiguity).
3. One of the juiciest details, as nicely summarized by Lavi Soloway:
Last Wednesday January 31 there was a secret settlement meeting at which Charney was offered an undisclosed sum in return for which he promised, among other things, to destroy the hard drive on his personal, home computer. The destruction of that hard drive moved to the center of the debate. Aaron Charney has been ordered to submit an affidavit to the court regarding the hard drive and the status of documents that were allegedly in his possession.
But no settlement was reached (as one could tell from the fact that a hearing took place today). And now Charney -- who, at the time of the secret settlement meeting, was still pro se -- is represented, once again, by counsel.
3. On the issue of the hard drive, Daniel Alterman, on behalf of Charney, represented to the court that the hard drive of his client's personal computer had been "destroyed." Charney has been ordered to provide greater information to the court about this (as noted above).
4. It seems, reading between the lines, that Justice Charles Ramos -- who had the case initially -- did grant a TRO to S&C last week. But he didn't give them everything they wanted, "scratching out" various aspects of their request.
As far as we could tell, the upshot of the TRO was for Charney to not divulge any secrets or client confidences of S&C. This explains his sudden shyness towards press inquiries. Justice Ramos punted a bunch of other issues raised in the TRO, such as custody of documents, to Justice Fried.
5. Justice Bernard Fried is taking over both the S&C case against Charney and Charney's original anti-discrimination action against S&C. Both actions will be handled by Justice Fried going forward.
6. Briefing schedule on the OSC: (a) Charney's opposition to S&C's Order to Show Cause (i.e., the preliminary injunction motion) is due on March 1 (and Charney will cross-move for some relief of his own on that date); (b) S&C's response to the cross-motion is due two weeks later, on March 15; (c) Charney's reply on the cross-motion is due one week later, on March 22; and (d) the next hearing on the Order to Show Cause will be held on March 27, at 11 AM, before Justice Fried.
7. Schedule for the pleadings: S&C's Answer to Charney's original Complaint -- or, more likely, its motion to dismiss under CPLR 3211 -- is due next week (apparently Tuesday, but there was some dispute over this).
8. Other procedural rulings: (a) discovery cutoff is February 5, 2008; (b) Note of Issue (placing the case on the trial calendar) set for February 12, 2008.
9. Rulings about S&C original documents: (a) various original S&C documents that Charney submitted to the Court, which S&C wants back, will be returned to S&C; (b) S&C will copy them and provide copies to the Court; and (c) next week -- on Valentine's Day, as noted by the Court -- Charney must submit an affidavit or affirmation concerning S&C documents.
10. Rulings about the hard drive on Aaron Charney's personal computer: (a) by the end of the day today, Charney must submit an affidavit or affirmation to the Court describing what happened to the "destroyed" hard drive; (b) if the hard drive has been merely erased, rather than physically destroyed, it must be produced to Judge Fried tomorrow; (c) if it still exists, a forensic computer expert will examine it, as requested by S&C.
11. Finally, Justice Fried entered a general preservation order, requiring all parties to preserve all documents relevant to these two cases (including attorney-client privileged documents).
Okay, that's it for this post. Further commentary will appear in a new thread.
P.S. Comment wherever you like -- this thread, the earlier thread, future threads. Commenting here at ATL has always been anarchic (which is why we love it so).
(45) Comments
Does Alterman have a gay accent?
FIRST
They talked about a secret settlement meeting in court? I thought settlement negotiations/offers were confidential.
FIRST
Is there anywhere in New York City where you can buy cables? Do they sell that sort of fancy high falutin teknawlogy in backwards New York City?
JIMBOB = pwn3d
12:19: "The hard drive has been DETHTROYED!"
12:22 rofl. I picture Alterman as having more of a big bear accent than a twink accent.
Alterman was quite a character. He's a large guy who seems like a softie. He is not the stone cold, perfectly attired Fasman, but he has his shtick and it seemed to work most of the time with Judge Fried. He worked hard to keep S&C from getting access to any documents prior to the deadline for their answer to ABC's original complaint, which was a hard case to make considering no one disputed that those documents belonged to S&C.
Alterman seemed like a guy you'd really enjoy having a beer with after work. He is funny and I did catch him teasing David Lat in the hallway of Judge Fried's courtoom before the hearing, saying to Lat, "You F**cked Up" (referring to what I have no idea, maybe Lat's premature guess of a settlement?) in a jocular and frat boy kind of way.
Alterman's alter ego, Boop, was not in court, in case that's your next question.
I know of Alterman. He's a first class litigator. I was surprised Charney got someone of his statute considering he couldn't even get LeGal. But then again Alterman is huge on social issues and I think gay so it does make sense.
Loyola 2L:
"his statute"?
Have you taken a course on legislation yet?
typo, was supposed to be stature. Do you think tier 2 grads are that stupid? No wonder everyone throws our resumes in the trash.
Loyola 2L probably misspelled his name on his resume, which is why he's unemployed.
I honestly don't believe that Loyola 2L is real. There is just no way.
Please don't start with the tier 2 bashing again.
Loyola 2L:
What you fail to understand is that no one on this board ever engages in Tier 2 bashing. Rather, we engage in Loyola 2L bashing. If you were first in your class at Harvard we would still be mocking you relentlessly for your comments on Charney v. S&C. We are bashing you, not your school.
burgle, burgle
If I went to Harvard I would at least be employed.
If Loyola 2L went to Harvard I would still think he's a semi-retarded child.
I don't at all like howthis lawsuit has been "fast-tracked". It seems as if the hearing this morning was an ultimate hearing on the merits. Remember where we are procedurally. S&C's complaint alleges conversion and replevin and seeks a return of the documents. They are seeking a preliminary MANDATORY injunction that Charney return the documents - which is the ultimate relief fro one of their claims. The way it should go is that Charney should have the opportunity to respond to the motion and show that S&C must establish likelihood of success on the merits. But it seems as if Judge Fried has ordered Charney to turn over the documents. Has Charney admitted that he took them?? Did he admit this in a court filing? If not, how can the judge order him to turn them over? Answer: the judge legally cannot - at least not until Charney gets a chance to answer the motion. Unless the Judge has granted a MANDATORY temporary restraining order - which is highly unlikely and very unusual. But judges seem to "order" people to do things all the time, despite not having the legal authority to do so. It doesn't seem right. Let Charney respond to the motion before ordering him to turn over files, hard drives, etc. that he may not have taken or may have taken with authority or permission.
L2L I know unemployed Harvardites.
They probably confused "statute" with "stature" too. Which could matter to some employers.
Here come the insults. All because I dared raise the plight of unemployed tier 2 grads.
Poor Johnny One-Note, sang out with gusto, and just overlorded the place.
Poor Johnny One-Note, yelled willy nilly, until he was blue in the face, for holding one note was his ace.
Loyola2L:
I don't even have your resume, and I thew it in the trash!! As a substitute, I took a hot pink post-it note, scribbled on it in crayon, and wrote L2LOL at the top. Then I spat on it and tossed it in the trash. I didn't even put it in the recycling bin. I would have lit it on fire and danced around it while chanting "Tier 2 Garbage!! Tier 2 Garbage!!" but evidently that contravenes firm policy regarding disposal of Tier 2 resumes.
Happy job hunting!!
Briefly, before today's hearing, Charney's counsel and S&C had already discussed the fact that Charney had documents/email etc, and Charney apparently already agreed to return some of them. Charney's lawyers basically said in court, 'we expect replevin will vanish as a allegation' because S&C will be happy to get these things back and know that electronic files were destroyed, thus assuring S&C that confidential client related matters are no longer out there. There was a lot of agreement (more than you'd think) between the adversaries (though judicial orders tend to help bring that to fruition) on the issue of return of documents. Aaron was not in court and could not be compelled today to testify re conversion. His lawyers strenuously argued that Charney first be given an opportunity to meet with his other attorney Michael Kennedy next week before submitting conversion/replevin related affidavits which would assure the court and S&C that he has returned/destroyed everything since such an affidavit(s) might incriminate him in another proceeding (guesses: criminal? disbarment?). I assume Kennedy is a criminal defense lawyer. Charney's counsel did mention that 5th Amendment rights might be implicated....
I think I will take some time to get my summary of today's events up on my blog. David Lat's "highlights" are well done, and give most of the picture.
burgle, burgle
I think both sides (but probably more Charney) is lucky to have gotten Fried rather than Ramos, who is often reversed on appeal. Once a sua sponte ruling was appealed by both sides and on such occasion he appointed his own lawyer to defend the ruling -- something the appeals court held was not within his power after they reversed him on the main issue on appeal.
L 2L: if you just made one comment without referencing the tier of your law school and your employment status, perhaps you wouldn't be trashed so often here.
I think this hearing was just a sideshow to help Fasman drive up his billings. Fasman has convinced S&C to take this detour contrary to its best interest; S&C should have settled long ago.
I know nobody credits my view; probably because I come from a tier 2 school. If I had a job I guess I would be smarter.
I didn't write that last post, and a lot of other "Loyola 2L" posts on ATL. Somone is impersonating me.
Maybe Fasman is trying to drive up his billings by orchestrating a conspiracy to impersonate Loyola 2L!
This is the real me. I didn't make the 1:30 pm post. Someone is impersonating me in order to post that some is impersonating me.
since there are people here that don't read xoxohth, you might want to update yourself on the internet meaning of the word "troll" before you get all snitty about L2L posts.
http://en.wikipedia.org/wiki/Internet_troll
also "flamebait"
http://en.wikipedia.org/wiki/Flamebait
Maybe we all just need some education about Tier 2. I googled "tier 2" and came across the following:
Common Myths About Tier 2
MYTH: You can get Tier 2 even if you use condoms.
FACT: Condoms protect against all but the most virulent forms of Tier 2. Individuals should consult with their physicians regarding the best ways to protect against intra-partner Tier 2 transmission.
MYTH: Tier 2 will make you go blind.
FACT: Tier 2 alone will not make you go blind. However, Tier 2 has been correlated with a high incidence of running with scissors which, acting in concert with Tier 2, may result in blindness.
MYTH: I'll know if I have Tier 2.
FACT: Although Tier 2 is often associated with symptoms of general malaise, incessant whining, poor job prospects, and dimwittedness, it may show no symptoms at all in its initial stages. By contrast, individuals in the early stages of Tier 2 report feelings of unfounded optimism and hope. Scientific studies reveal that between the early and advanced stages of Tier 2, infected individuals are often the source of bits of scrap paper they refer to as "resumes." Scientists continue to investigate this odd paper-wasting behavior.
lol!
I wish those lucky Tier 2 bastards would stop complaining about how bad they got it. I almost had a job and some Loyola bitch swooped in an stole it from me.
Several of the firms I interviewed with gave me toilet water to drink. It made me violently ill. They sat there and laughed at me with their fancy Tier 2 degrees.
Very funny LaLa Larry. Funny and true. Did you write it? Impressive.
Is Florida Coastal even accredited?
burgle, burgle
The 3:35 comment was not from me. It is from an imposter. I did not write "burgle, burgle." Clearly someone is trying to make me look foolish because I'm from a Tier 4 school. Why do you all think you're better than me???
FC2L:
That would be "better than I." Perhaps if you had mastered English grammar...
Stop picking on me just because I go to a Tier 4 school! You are all smug privileged bastards!!
Oh man I wish I had a job. One firm used my resume as toilet paper.
Another firm sent former pro wrestlers to my house. They raped my dog and broke my TV.
You guys have no idea how hard it is being at a Tier 4 school!
burgle, burgle
what % of the responses to L2L are raising the ante. and what % are taking it seriously.
layers upon layers.
keep up the lovely work.