Also, by dismissing the complaint and allowing Charney a second run at S&C, Fried reveals that he simply was not buying S&C's tenuous argument that Charney's motion violated client "secrets" and "confidences" and that Charney could not proceed without violating DR 4-101. Fried essentially says to Charney, you can make this claim against your former employer, just give it a better shot next time.

Fried dismissed S&C's claim that there had been a breach of fidiciary duty by Charney. Another win for Charney, and a loss for S&C.
Fried did not come to a decision on S&C's breach of contract claim because evidence was lacking. Again, a win for Charney, and a loss for S&C. Fried might have ruled for S&C on this one if he could have referrred to the S&C office manual (which is incorporated by reference to the acknowledgement that Charney signed). but it was not part of the submissions.

Fried: "It is impossible for me to determinte whether he [Charney] is right [that the manual does not constitute an agreement], or whether the Office Manual prohibits his alleged conduct, because the Office Manual has not been submitted to me."

Why wasn't that S&C office manual attached to S&C's complaint? I guess only Fasman and Stillman, their highly paid attorneys can answer that one...

Fried seems to agree with this Blogger's take on the whole "theft of documents" allegation, i.e. it doesn't really add up to much since Charney had already returned virtually everything S&C claims he had taken. However, on this issue Charney failed to provide any evidence beyond an affidavit from his attorney that he had returned the materials in question; therefore, Fried does not dismiss S&C's actions for conversion and replevin. Still, Charney sort of wins, because this is hardly a ringing endorsement from the bench of S&C's diversionary fishing expedition for other possibly misappropriated documents.

Fried did enjoin Charney from revealing anything confidential going forward, not really a big surprise, and certainly not a "loss" to Charney or a "victory" to S&C.

(Art Leonard forwarded me his synopsis and his conclusion, with which I tend to agree: Charney's case stays alive, and S&C has not accomplished its goal of shoring up its legal position. As Art Leonard wrote to me, "S&C's case is seriously weakened." I think it's safe to say that S&C's public relations posture does not improve with these developments, either.)

RE S&C's MOTION TO DISMISS CHARNEY'S COMPLAINT

Fried: "I conclude that there is nothing in or annexed to Charney's complaint that discloses attorney-client privileged material. In particular, an in-house counsel's exhortation to S&C to keep its fees down on a legal matter [Kotran's July 2006 email, Annexed Exhibit C] and conversations between a S&C attorney and client in which an associate was praised for doing good work are not directly relevant to legal advice."

Fried: "S&C has pointed to no authority holding that "client secret" is broad enough, as a matter of law to include the names of clients or the attorneys staffed on particular transactions, attorney reviews, or conversations between attorneys and clients regarding attorney performance, barring a specific request by a client that this information be kept secret. .. Based on the documents submitted on this motion, however, it appears that the clients have acquiesced in the publication of the fact that they were represented by S&C and of S&C's staffing on these deals. Consequently, I conclude that the identification of nine S&C clients and the references to five corporate deals in the [Charney's] complaint cannot be considered client secrets."

Fried: "Based on the documents before me I cannot conclude as a matter of law that S&C is entitled to strike the above references to clients and deals from Charney's complain based on DR 4-101."

Fried: "Rather than sifting through Charney's complaint and attachments to strike the inappropriate material, I will strike the entire complain and grant Charney leave to replead in accordance with this order. In light of my decision dismissing Charney's complaint, I will not sign a discovery order until an amended complaint is served and filed."