Posted: March 16th, 2017
Movers & Shakers
Scott Middleton, a founding partner and trial attorney at Campolo, Middleton & McCormick in Ronkonkoma, was elected to the board of directors of Riverhead-based East End Arts.
Posted: March 14th, 2017
Donald J. Rassiger, Esq.
Counsel
Campolo, Middleton & McCormick, LLP
Donald J. Rassiger is counsel at Campolo, Middleton & McCormick, LLP where he handles a wide range of labor and employment matters, with a particular focus on the construction industry. Chair of the Construction practice group, Rassiger has significant experience in the corporate safety and risk management arenas and works with clients on incident investigation and reporting, policy and procedure, and OSHA compliance. His strong labor and employment background enables him to counsel clients across a wide range of industries and sizes.
Having served as Chief Legal Officer of four companies and created the General Counsel role at three of them, Rassiger understands how management thinks—a perspective he brings to all matters he handles. This legal and business background enables him to find creative solutions that achieve his clients’ desired results while complying with applicable laws, minimizing risk, and saving his clients both time and money.
A proposed bill involving employers requiring workers to sign non-compete agreements will be an important issue this year, Rassiger noted.
“Non-compete agreements have been spiraling out of control in recent years,” he said. “The purpose of a non-compete agreement is to help employers protect valuable assets such as customer and vendor lists, processes, and customized software – valuable trade secrets that could be jeopardized if key employees leave. But increasingly, companies were having even the most junior employees sign non-compete agreements as a matter of course. That era is over. Eric Schneiderman, the Attorney General of New York, proposed a bill, building off a string of settlements involving employers who were requiring workers across the board to sign non-competes.”
“I expect an uptick in the number of lawsuits based on non-compete agreements as the workforce continues to become more mobile,” Rassiger explained. “This is a good opportunity for employers to review their hiring processes and employment documents.”
A graduate of College of the Holy Cross and Fordham University School of Law, Rassiger also works with clients on corporate transactional work as well as mergers and acquisitions.
Campolo, Middleton & McCormick, LLP is a premier law firm with offices in Ronkonkoma and Bridgehampton, New York. Over the past generation, CMM attorneys have played a central role in the most critical legal issues and transactions affecting Long Island. The firm has earned the prestigious HIA-LI Business Achievement Award and LIBN Corporate Citizenship Award, a spot on the U.S. News & World Report list of Best Law Firms, and the coveted title of Best Law Firm on Long Island.
Posted: March 7th, 2017
CMM’s Intellectual Property team scored a win for our client in a matter before the World Intellectual Property Organization (WIPO), a United Nations agency and the global forum for IP services. CMM opposed a challenge to our client’s use of a web address by the website’s former owner. The WIPO panel found that we established that there was compelling evidence that the former owner had abandoned its trademark rights and that our client had not acted in bad faith in using the address. This victory was great news for our client, for whom use of the web address was critical.
Posted: March 7th, 2017
In what is believed to be a first in New York State, Campolo, Middleton & McCormick (led by Scott Middleton) prevailed on a motion for pre-judgment attachment in a personal injury and wrongful death case. The order of attachment provides security to our client, who faces the frightening possibility that her damages would exceed the defendant’s insurance coverage.
CMM represents the surviving family members of a man who passed away following a tragic car accident. The defendant’s vehicle was covered by a $25,000/$50,000 policy, well below the anticipated total damages. This grim possibility, coupled with evidence from the concurrent criminal case that the defendant had intended to escape by boat to a country without an extradition treaty with the U.S., prompted the CMM team to seek an order of attachment. Such an order removes property owned by a defendant from his control so that it may be preserved to satisfy a judgment in the event the plaintiff prevails.
Courts characterize attachment as a “harsh” remedy within the court’s discretion. Here, the court found that CMM successfully demonstrated that a viable cause of action exists as a result of the defendant’s negligence and that it was probable that the plaintiff would succeed on the merits of the case. Agreeing that there was also a strong likelihood that damages would exceed the minimal coverage available, the court found “ample” support for granting the order of attachment.
While pre-judgment attachment is not unusual in commercial matters, we are unaware of any other personal injury actions in which a party successfully moved for such an order.
Posted: February 28th, 2017
by Carrie Mason-Draffen (carrie.mason-draffen@newsday.com)
DEAR CARRIE: I am a public-school teacher. The district where I work is planning to issue my colleagues and me laptops. If we lose the computers, can the school make us pay for them? — Property Protocol
DEAR PROPERTY: The key words here are “public school teacher.” Whether or not you and your colleagues are on the hook for lost laptops would depend on what your union contract stipulates, said employment lawyer Christine Malafi, a partner at Campolo, Middleton & McCormick, which is based in Ronkonkoma.
“Public employees may be working under a collective bargaining agreement with their employer, and the terms of that agreement may govern the use of and responsibility for employer property and should be reviewed,” Malafi said.
The law is much simpler for private-sector employees. It prohibits their employers from docking their wages for such things as lost equipment.
“Employers are only allowed to deduct certain items from an employee’s wages, such as taxes, insurance premiums, union dues, etc. They are not permitted to charge employees for breakages, cash shortages, fines or any other losses to the business.”
But the company could fire the employee who loses or breaks equipment, unless a union or employment contract prohibits it.
To avoid such workplace entanglements some companies require employees who work with tools or equipment, for example, to bring their own, as a condition of employment, Malafi said.
Read it on the Newsday website.
Posted: February 27th, 2017
ServiceAide, Inc., a leader in IT Service Management for small and medium businesses globally, announced this winter that it has completed the first installment of a $12 million funding round led by Arrowroot Capital. Campolo, Middleton & McCormick, represented ServiceAide in the funding round. CMM partner Christine Malafi led a corporate team that also included Donald Rassiger and Vincent Costa.
ServiceAide’s ITSM SaaS offering provides user-friendly, powerful features that make it the solution of choice for SMBs and MSPs worldwide. ServiceAide will use the investment to bolster its sales and marketing efforts and continue on its product development roadmap as a leading innovator in the industry.
“The investment will accelerate our roadmap and support us in achieving our goal of turning the recording of who, what, when and how into a proactive optimal blend of suggestions and decision support,” said Wai Wong, CEO of ServiceAide. “With a global customer presence, ServiceAide’s Cloud Service Management product coupled with the Sigma machine learning platform will gain significant momentum.”
CMM’s corporate attorneys have been owners, executives, board members, and corporate and general counsel of companies public and private, international and local, large and small. This hands-on experience has made the CMM Corporate department one of the most robust and fastest-growing on Long Island and in the New York metropolitan area.
About ServiceAide, Inc.
ServiceAide Cloud Service Management is a powerful yet simple to use SaaS ITSM product available worldwide. ServiceAide was created around the core concept of connecting data to create coherent information that can revolutionize business results. The company accomplishes this by building a solid foundation of big data and machine learning Sigma technology, combined with world-class service and support. Learn more at www.serviceaide.com.
Posted: February 27th, 2017
Published In: East Hampton Star
Tags: negotiation
Donald Trump holds himself out as a master negotiator and “dealmaker,” frustrated by the gridlock of Washington politics.
Boy, did he pass up a great opportunity to demonstrate these so-called skills with his insistence that Betsy DeVos become the next Secretary of Education. The same can be said for Senate minority leader Chuck Schumer – another high-powered politician from whom you’d expect superb negotiating skills – who also missed a major opportunity to strike a win-win compromise.
The uproar and opposition to the DeVos nomination was unprecedented in recent American history, and her confirmation vote is believed to be the first time the Vice President, as President of the Senate, needed to cast the tie-breaking vote. It should never have come to that.
As a lawyer, I consider myself to be someone who understands the art of negotiation. And a fundamental principle of negotiation is that win-win (or win-not lose) always works better than win-lose.
Here’s what I would have negotiated:
In the face of the extraordinary opposition to DeVos’s nomination and, oh right – that pesky upcoming confirmation process for his Supreme Court nominee, Neil Gorsuch – the President should have extended an olive branch to Schumer – and, in effect, the teachers unions, educators, and other citizens outraged by DeVos’s nomination – by conceding that fight. He should have not had Vice President Pence cast the unprecedented deciding vote but instead, in light of a 50-50 stalemate, agreed to nominate someone less controversial (and given DeVos an innocuous ambassadorship).
In exchange for allowing Schumer a “win” by dropping DeVos, Trump could have negotiated that Schumer and Senate Democrats wouldn’t stall the confirmation of Gorsuch. (The empty seat is Scalia’s, so filling it with another conservative will just return the Court to its previous makeup.) Then, both sides could have easily and understandably agreed that if another seat opens up during Trump’s tenure, the parties would duke it out then.
This compromise would have resulted in a different nominee for the Secretary of Education (rather than someone even Republicans could not agree on) and the confirmation of someone who appears to be a highly qualified conservative nominee for the Supreme Court. Instead, rather than negotiate a win-win deal, these two political leaders just confirmed the notion that Washington can’t help but play win-lose– even the so-called king of all dealmakers. And you can’t complain about gridlock when you play that way.
Long Islanders – and frankly, all Americans – don’t need more gridlock. We need politicians who are willing to negotiate in a way that will yield more win-win solutions. This missed opportunity by both parties is a shame.
Thomas Jefferson famously had one-on-one dinners with every single member of Congress, no matter how vast the political differences between them. He clearly understood that partisan politics needed to be pushed aside for the sake of making deals and pushing the country forward. It’s a lesson that today’s politicians should heed.
Posted: February 27th, 2017
Published In: The Suffolk Lawyer
A crucial issue for any business named in a lawsuit or that is on notice that it will be named in a lawsuit is the preservation of evidence, specifically electronically stored information (“ESI”). Attorneys will typically send “litigation hold” letters to their own clients or opposing parties in litigation to ensure that all steps are taken to preserve all documents and ESI that could be relevant to the litigation. Essentially, businesses are instructed that nothing should be deleted, removed, modified, etc. by anyone within the company while the litigation is pending. When a client destroys evidence or is negligent in preserving evidence, it is considered “spoliation” of evidence and can lead to sanctions imposed by the Court against the party that is guilty of spoliation including, but not limited to, dismissal or striking of a pleading, monetary penalties, or a negative inference at trial. The negative inference at trial can be incredibly damaging to a party because it permits a jury to infer that any missing evidence is missing because it negatively impacted that party’s case or defense.
The Commercial Division in Queens County recently dealt with this spoliation of evidence issue in Ferrara Bros. Bldg. Materials Corp. & Best Concrete Mix Corp. (“Ferrara”) v. FMC Constr. LLC, et al. (Dufficy, J.). Plaintiff Ferrara commenced the lawsuit against FMC Construction LLC (“FMC”) and Casa Redimix Concrete Corp (“Casa”) claiming that Casa interfered with the contract Ferrara had with FMC to provide cement for a construction project. Casa’s defense was that it did not know about the contract between Ferrara and FMC at the time it entered into its contract with FMC. However, Ferrara alleged that Casa purposely backdated its contract with FMC to give the impression that it was entered into prior to Ferrara’s contract rather than after Casa’s principals became aware of Ferrara’s contract.
Given the issue with the timing of the contract between Casa and FMC, Ferrara sought in discovery (over seven years after the case had been commenced) the electronic data, specifically metadata that would reveal the true dates that the contract between Casa and FMC was prepared, modified, and executed. In response to the request, an IT specialist submitted an Affidavit on behalf of Casa claiming that two years after this litigation was commenced, the computers on which the native information was stored had been replaced and discarded due to a need to update Casa’s computer system. The Court made a point to note that this computer system replacement was not done through an automatic process but rather was a conscious decision by Casa to update its computer system in the midst of litigation.
As a result of the discarding of the information by Casa, Ferrara brought a motion seeking sanctions against Casa for spoliation of evidence. The Court noted that a party seeking sanctions based on spoliation of evidence must show the following: (1) the party having control over the evidence possessed an obligation to preserve it at the time of its destruction; (2) the evidence was destroyed with a “culpable state of mind”; and (3) the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense. VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45 (1st Dep’t 2012), quoting Zubulake v UBS Warburg LLC, 220 FRD 212, 220 (S.D.N.Y. 2003)
Considering that the timing of the contract between Casa and FMC was at the heart of Casa’s defense in the case regarding its knowledge of the contract between Ferrara and FMC, the Court found that the metadata Ferrara sought was relevant to the case. The Court also found that, considering that the parties were in the midst of litigation at the time and Casa knew or should have known that the ESI regarding its contract with FMC would be relevant to the litigation, Casa had an obligation to preserve this ESI. Lastly, the Court held that Casa had not presented any evidence to rebut the presumption that Casa was negligent and possibly even grossly negligent in failing to suspend its destruction of the computer system containing ESI relevant to the litigation. As such, the Court found that Ferrara had established the factors necessary to prove spoliation and turned to the issue of sanctions.
In reviewing sanctions to be imposed against Casa, the Court noted that spoliation sanctions are often based on the degree of willfulness with respect to the refusal or failure to disclose information which ought to have been disclosed. Hameroff & Sons, LLC v. Plank, LLC, 108 A.D.3d 908 (3d Dep’t 2013). Further, when the party seeking sanctions is still able to prove its case or defense, less severe sanctions are generally appropriate. De Los Santos v. Polanco, 21 A.D.3d 397, 398 (2d Dep’t 2005).
After reviewing the facts of this case and based on the fact that the Court believed that Ferrara could still prove its case even without the missing evidence, the Court determined that the appropriate sanction would be a negative inference at trial to the jury. Essentially, what this means is that if the case goes to trial, the jury will be permitted to infer that the reason the metadata was not disclosed is because it would act against Casa’s defense that it was unaware of Ferrara’s contract with FMC prior to its own contract with FMC.
The importance of preserving evidence in anticipation of litigation cannot be stressed enough. While it is entirely possible that Casa simply needed a computer system upgrade and did not realize it would be destroying evidence pertinent to the pending litigation, as seen here, courts will impose a duty on the business and its employees to have those holds in place to ensure that everything is preserved. The fact that Casa was already two years into the litigation at the time of the computer system replacement made the discarding of ESI even more egregious and should serve as an important lesson to business owners as well as attorneys counseling their clients at the start of and throughout litigation.
Posted: February 26th, 2017
Long Island Business News has recognized Lauren Kanter-Lawrence, Esq, the Director of Communications at Campolo, Middleton & McCormick, LLP, as an “In-House Marketing & Communications Professional Leader” with an Excellence in Communication Award. The Awards recognize top industry professionals for distinction in marketing, communications, public relations, website, and graphic design. The honorees will be celebrated at an awards ceremony and breakfast at Crest Hollow Country Club in Woodbury on March 22 at 8:00 a.m.
As Director of Com
munications for one of the fastest-growing law firms in the region, Kanter-Lawrence is tasked with implementing all aspects of the firm’s communications and business development strategy. She drafts and ensures the accuracy of all communications including press releases, newsletters, client advisories, website, and other media. She works closely with the firm’s senior attorneys on their business development initiatives, speaking engagements, and presentations, as well as drafting the content for these events. Kanter-Lawrence is also tasked with developing relevant and interesting content for the firm’s popular Business Breakfast Series and other programs. Drawing from her legal experience, she also oversees the firm’s in-house continuing legal education program, devising the curriculum for the firm’s full calendar of courses.
A graduate of Cornell University and Pace Law School, Kanter-Lawrence joined CMM in 2008 as an Associate attorney and rose to Senior Associate practicing in the areas of commercial litigation and corporate transactions prior to taking on the role of Director of Communications. Before beginning her legal career, she focused on writing and editing at a book development company, where her work was published by several major publishing companies.
