2003 has by itself been an active year for litigation in the Mullaney Firm. In May of this year won a federal trial in the Southern District of New York against a corporation represented by a large, national law firm. In it, the plaintiff (and Firm client) had sought to restrain debt-payments due from the defendant, a company located in the mid-Atlantic, to an Italian company. The Italian company, plaintiff alleged, was the alter ego of another Italian company against which plaintiff had an unsatisfied multi-million dollar judgment. The defendant had continued making payments after receipt of the restraining notice, asserting that the notice was invalid, and that there was no reason to believe that the two Italian companies were alter egos. The Court ruled in favor of the plaintiff, holding the defendant liable in civil contempt of court for violating the restraining notice.
The amount of damages will depend on the outcome of a related litigation also pending in the Southern District of New York. There is a third related litigation in the same Court, against a defendant located in the United Kingdom, in which the parties each moved for summary judgment based on, in our case, the affirmative use of collateral estoppel. The resolution of those motions is pending.
Finally, a highly favorable disposition of a complex breach of contract claim was achieved in the early part of the year. In that case the Firm also represented the plaintiff, a foreign national who had claimed in Connecticut against his former partners located in the Midwest for breaching the agreement by which the plaintiff had sold them his interest in their company, as well as certain intellectual property rights. Those rights revolved around the novelty and ownership of highly specialized optical lens designs, the definition of which required the opinions and proposed testimony of two world-renowned experts in the field.
April 1, 2010
BY ELECTRONIC
MAIL
Dear Friend of the Firm,
To paraphrase the title song of a movie classic, “From Russia with
Love,” I write to you. Not literally of course, because while I did
move my office recently, my suitemates and I only went as far as
Madison and 40th Street. And unlike the former Governor
of Alaska, I cannot see Russia from my new vantage. Instead, I can
see a sliver of the White & Case building which, if you need an age
check, I left ten years ago. I can also see a universal symbol of
the United States... the Internal Revenue Service. But my annual
report letters have stood for many things over the years, none of
them being a gloomy reminder of the inevitable encroachment of time,
or the ides of April.
Instead, they serve to remind you
of developments in my practice of law, with I hope a dose of humor.
Accordingly, my cryptic song allusion is actually a reference to a
recent case filed here in New York, which featured prominently in
the local press. The “ravishing Russian”, as the venerable Daily
News described the plaintiff in Krupnik v. NBC Universal Studios,
et al., is a former model I represent in that action. In it she
complains of the (ab)use of her ten-year old photograph by a
character in the movie “Couples Retreat” as an aid for an act that
was once thought to induce blindness. Most of the coverage of this
litigation was devoted to photographs of Ms. Krupnik,
unsurprisingly, but a quote or two of mine did make their way into
the text of the articles that, I am sure, everyone read for their
legal interest.
In a photograph-less litigation I
am conducting on the other coast, I am enjoying success in the
Northern District of California in a class-action I brought against
Symantec Corporation, the maker of the Norton Anti-Virus software.
I recently overcame a second motion to dismiss brought by Symantec’s
tenacious counsel, Weil, Gotshal & Manges, and the case is about to
head into discovery. Despite the zealousness of the defense, the
allegations of the case are relatively simple: they are that
Symantec has continued to automatically renew annual anti-virus
software subscriptions, even after the consumer had elected to
upgrade from that software, based upon the advertisement of that
upgrade as an alternative to the renewal. Unless you are Symantec,
two anti-virus programs are not better than one, because the
upgrades are redundant of the software they replace. Since this
case was brought, New York’s Attorney General Cuomo and Symantec
have entered into a settlement agreement concerning certain Symantec
sales practices that sound a lot like the claims in my case and,
although its specific terms are currently confidential, I am hopeful
of learning them in discovery. While there is no doubt a great deal
of litigation ahead in this case, I was thrilled to surmount the
first hurdle in a significant case, hard fought with a major
national law firm.
On the other side of the
class-action bar, my longest-standing client MediaSentry, Inc.
recently won a motion for summary judgment, dismissing it from
Andersen v. Atlantic Record Corp., et al., pending in Portland,
Oregon. MediaSentry had been accused of being a cohort in the
major-label record companies’ alleged “conspiracy” to prevent people
from illegally downloading copyrighted songs on the internet. While
it would be nice if music, among other things, were free, the trial
court has found MediaSentry did nothing wrong in its work for the
record companies to encourage people to pay for their music.
Interestingly, the plaintiff has attempted to maintain MediaSentry
as a defendant in the case by use of a Writ of Mandamus. The Civil
War buffs among you probably have heard this phrase before, but it
was not used too often even by ante bellum litigators, and I
am reasonably confident that MediaSentry will stay dismissed.
The remainder of my practice in the
last year was active with several disputes within small companies
and partnerships, by disgruntled investors, and even one estate. It
seems that as money became scarcer in the bad times of the last year
or two, people became more creative about getting some, and the
result was a boost in my business in 2009. Claims of fraud,
mismanagement and plain old larceny are the norm in these cases, and
emotions generally run high, so I am frequently called upon to be a
counselor of all sorts. Although this adaptability might just as
aptly describe a mortician, occasionally these unusual disputes are
unusually fun. One such occasion arose when I had the opportunity
last year to negotiate the sale of a house to one of my favorite
actors, Richard Gere. Although the world’s second-most famous
Buddhist came very close to hanging up the phone on me at a
particularly touchy point in the negotiations, we wound them up on
friendly terms … I think. After the dust had settled, he told
someone else involved in the deal: “I like that Tom Mullaney. He
has some personality.”
And I haven’t heard from him since.
Sincerely,
Thomas M. Mullaney
In addition to the 2010 report letter see below the 2009 letter:”
February 13, 2009
Dear Friend of the Firm,
This is the eighth annual report letter
that I have sent you, and I am happy to report that 2008 was as good
a year as I have enjoyed in my practice, and to write (with fingers
crossed) that 2009 will likely be as good. I can also report
less happily that my ability to predict the future of my law
practice is much better than my ability to predict the future of my
stock portfolio. Thus you may rest assured that I will
continue toiling at the Bar for perpetuity, at least according to my
cheerless financial advisor.
A handful of cases garnered significant
publicity in the last year, of both the esoteric and sensational
variety (one of my former bosses, a closet NY Post reader, called to
ask if I even took cases that did not warrant coverage in its august
pages). The answer was yes. Of the academic variety of
my docket, in Al-Bawaba.com v. Nstein Technologies Corp., I
represent the defendant in a case that is part of a recent change to
the previously well-understood rule of what type of writing sufficed
to confirm an oral contract. Nstein is one of three
recent New York decisions to find that an e-mail alone may be enough
of a written confirmation to make an otherwise unenforceable oral
contract valid. Previously, an actual signature on a document
was required to alert the parties to the gravity of their
commitment. Now, however, even an e-mail without the sender's
name typed at the bottom may bind the sender, according to one State
Court.
The two other recent decisions held that the
typing of the sender's name at the end of the message was necessary
to demonstrate the sender's intent. Moreover, an automatically
inserted signature block satisfies this development in the law.
In an age when the ease of electronic communication makes written
messages the equivalent of conversation to a non-lawyer, care should
be taken by business persons in the midst of negotiations. A
quick note from your Blackberry may impose unintended obligations,
or impose a law suit to enforce them.
In a case also without much precedent, I
represent the estranged wife of a man who sued her for infecting him
with Herpes Simplex Virus-2. Moreover, the husband also sued
her father (his father-in-law), a medical doctor, for conspiring
with his estranged wife to hide her condition from him. The
motive was allegedly for the estranged wife to continue to enjoy the
benefits of the husband's lucrative law practice in their marriage,
which the husband would have ended had he known his wife ostensibly
communicated the virus to him. The husband is represented by
Robert Stephen Cohen, perhaps best known for representing Christie
Brinkley in her custody battle with her former husband Peter Cook,
in which Mr. Cook's interactive online pornography habit was exposed
in open court by Mr. Cohen. Unsurprisingly, the New York Post
gleefully covered the case, including taking the unusual step of
reporting my client's motion to dismiss, in which she submitted
evidence that she in fact is not infected with the virus. A
decision on that motion should issue shortly.
Since some of you have asked; a decision on
defendants' motion to dismiss has not yet issued in Dr. Andrew
Trees v. Horace Mann, et al., otherwise known as the
Academy X case. That motion has been before the Court for nearly a
year, so the wheels of justice do continue to turn slowly even in
the internet age. In the interim, Dr. Trees has written and
published a new book, and gave a reading of it at an Upper East Side
Barnes & Noble recently. The Post was kind enough to warn
Horace Mann parents to stay away. Finally, although settled
last year, my "A Million Little Pieces" case lives on, in the
publishing world at least. When it was revealed that the story
of a Holocaust survivor's romance during his imprisonment during
World War II was fictional, the publication of his allegedly factual
book, "Angels at the Fence" was cancelled, among references to James
Frey's secretly fictional work. While a movie based on the
"Angels" story may apparently be made, no such plans for a movie
about "A Million Little Pieces" or the litigation surrounding it are
in the works.
There were also several less noteworthy
commercial cases, including two consumers' rights class-action suits
in which I represent a plaintiff, and several criminal cases that
kept my practice active last year. Of the resolved criminal
cases, two were disposed of with pleas that resulted in no
incarceration, and one with a mandatory minimum sentence.
Although one may reasonably disagree, I believe deeply that my
representation in criminal cases is the most important and
beneficial work that I do, and that my clients deserved whatever
favorable sentencing that they received. The criminal part of
my practice does not take up the majority of my time anymore, but it
may mean the most to me.
I hope this letter finds you all well in
this turbulent period. In a time when jobs and life savings
and even lives are disappearing in a series of historical
calamities, I am especially grateful for my good fortune in having
your friendship.
Sincerely,
Thomas M. Mullaney
