They’re back! More employers using noncompete clauses.

“”There has been a definite, significant rise in the use of noncompetes, and not only for high tech, not only for high-skilled knowledge positions.” That’s according to law professor Orly Lobel quoted in the New York Times today. The truth is that noncompetes never went away. They have been used in many industries dating back to the middle ages. They are a perennial source of litigation. Used correctly, they can protect a company’s legitimate interests. Used wrongly, they can unfairly burden workers. And that’s why courts scrutinize them closely. One other thing has always been true: you need skilled and experienced counsel in this tricky area of law.

Litigating Life … or Death—One Year Later

Man walking across wet ground.
On June 5, 2013, federal judge Michael Baylson in Philadelphia made national news when he issued a temporary restraining order directing Secretary of Health and Human Services Kathleen Sebelius and the federal organ allocation system to disregard the age of Sarah Murnaghan (then ten) for purposes of allocating new lungs she needed to live. Sarah got that new set of lungs and lived. So did Javier Acosta, another child I represented with a team of lawyers from my former law firm, Pepper Hamilton LLP.

Tragically, a lot of people waiting for organs aren’t so lucky.

Last year at this time, I represented ten year-old Sarah Murnaghan, then a patient in the ICU at the Children’s Hospital of Philadelphia, in a highly unusual lawsuit in federal court. Sarah suffered from end stage lung failure and Cystic Fibrosis. I led a team of lawyers that challenged the federal “Under 12 Rule” of the organ allocation system and on June 5 and 6, 2013, secured temporary restraining orders for both children in federal court.  The TROs required the children to be treated as if they were 12 years old for purposes of lung allocation.

A few days later, on June 10, 2013, the Executive Committee of the Organ Procurement and Transplantation Network (OPTN), which runs organ allocation, decided to change the Under 12 Rule to permit exceptions in special cases.  Both children have since had lung transplants and, thankfully, are alive today. (Read news coverage of the case and listen to a transcript of the TRO hearing here on my web site.)

In fact, both children are doing amazingly well. One year ago they were in bed dependent on ventilation to breath and, in Sarah’s case, weeks away from death. Javier was not quite as sick as Sarah but he too would have died without new lungs, and he has the memory of an older brother, Jovan, also a CF kid, who died waiting for a lung transplant in 2009. Today both Sarah and Javier breathe on their own. They are completely mobile and getting ready to rejoin their classes at school in the fall.

I re-lived the case on May 16, 2014, as a speaker at the Health Policy Institute sponsored by Southern Illinois University in Carbondale, Illinois. The other speakers included Stuart Sweet, M.D., a pediatric pulmonologist from St. Louis and the Secretary of the OPTN. Dr. Sweet was directly involved in Sarah’s case and offered the compromise solution that resolved the case at the OPTN and ultimately helped Sarah to get lungs.

The title of the program was From Critical Shortage to Critical Mass: Addressing the Lack of Organ Donors.The conference opened with a presentation by Dean Kappel, President/CEO of Mid-America Transplant Services, a high-performing organ procurement organization that serves the St. Louis area, one of 58 such non-profit organizations in the United States.

Dean reported the bad news. Every day eighteen people in the United States die waiting for organ transplants.

The statistics are sobering. For the past ten years, the number of donors of all organs has stayed flat in the 14,000 range annually. The number of people on the waiting list for kidneys alone has risen from the high 20,000s to the high 30,000s with another 10,000 people annually waiting for livers, and more than 7,500 people waiting for hearts, lungs, and other organs.

The problem is most acute with kidneys. The federal government funds the cost of dialysis for patients suffering from end stage renal disease to the tune of more than $34 billion a year. More people staying alive on dialysis means more people waiting for kidneys, which is why, of the eighteen who die every day, fourteen die waiting for kidneys. That’s a lot of misery.

Organ shortage isn’t the only problem. The organ allocation system overall works very well, but there are some problems, as Sarah’s case illustrated. One known problem results from the regional approach to allocation, with organs allocated preferentially within the region where the donation took place. With the regional system it’s possible for an organ to be given to a less sick person in region while a far more sick person just over the border dies; it’s been known to happen and it violates the governing federal regulation that mandates that organs be allocated based on medical urgency. Admittedly, some sort of regional approach is necessary because organs don’t last long and need to be used quickly, but hard and fast cutoffs are difficult to justify.

Another problem with the regional approach is the great disparity in organ donation and recovery by region. Some regions including New York City and Long Island have very long waiting times compared to other areas of the country, and the regions with better results prefer not to change the system.

What to do? Well, the system has got to improve. But how to address the most basic problem — the shortage of organ donations? Economist Randy Beard of Auburn University has a new book called The Global Organ Shortage: Economic Causes, Human Consequences, Policy Responses (Stanford University Press 2013). At the conference, Randy argued for a carefully-structured compensation system, with rigorous vetting of candidates, a six-month waiting period, and back-loading of compensation. In the United States, any type of compensation system, even one that provided money for funeral benefits for a deceased donor, would require congressional approval, because the National Organ Transplant Act of 1984 prohibits any consideration in exchange for donated organs.

Another alternative is to increase donor registration through social media. Most people today become organ donors when they register to drive. While that approach has proved successful to a degree, the numbers seem to have topped out, with very high donor registration rates in some areas but not others. Andrew M. Cameron, M.D., a surgeon at Johns Hopkins, reported on the Facebook Organ Donor initiative, which provides easy online organ donor registration with alerts going out to Facebook friends. Dr. Cameron acknowledged that social media is one avenue for progress in organ donation, but it’s not enough.

The consensus of the speakers and the audience in discussion was that the problem of procuring sufficient organs to meet the growing need is going to require much greater societal awareness, more study, and probably action from Congress. For now, progress in transplantation science seems to be outstripping our ability as a society to procure organs.

Written By — Steve Harvey

Supreme Court in Town of Greece v. Galloway Approves Overtly Sectarian Prayer Chosen by Local Majority for Public Town Meetings

The Supreme Court disappoints with its decision in Town of Greece v. Galloway.  The case concerned the constitutionality under the First Amendment’s Establishment Clause of government-sponsored prayer at public town meetings, where over a period of nine years the town engaged in a practice of monthly prayer that can only be characterized as overtly sectarian.  The town invited exclusively Christian prayer givers to open its monthly public meetings and the prayers included frequent and repeated references to Christ, the Holy Spirit, and specific theological concepts.

Both the majority and the dissent agreed that, in general, prayer at local government meetings that invokes divine guidance and support for the purpose of solemnizing the meeting is constitutionally permissible. The difference, according to Justice Kennedy for the majority, is that nothing in the Constitution requires that the prayer be nonsectarian. In fact, asking courts to act as the prayer police would make it worse by asking courts to draw the line at what is sectarian. The majority suggests that there is a line that might be crossed if the prayer were to coerce non-adherence to participate or “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion,” but that’s a pretty low bar that does not prohibit the kind of overtly sectarian prayer at issue in the facts of the case before the Court.

The best part is Justice Kagan’s dissent, which uses the record in the case to paint the facts of a decade of open sectarian prayer at public meeting in the Town of Greece. She evaluates those facts against the principle that the government may not align itself with any particular creed and finds fault in the town’s prayer practice. It “puts some residents to the unenviable choice of either pretending to pray like the majority or declining to join in its communal activity, at the very moment of petitioning their elected leaders.” It “divides the citizenry, creating one class that shares the Board’s own evident religious beliefs and another (far smaller) class that does not.” And it “alters a dissenting citizen’s relationship with her government, making her religious difference salient when she seeks only to engage her elected representative as would any other citizen.”

Justice Kagan responds to the majority’s concern about being drawn into defining the line of what is sectarian by noting that all the town had to do was “let its chaplains know they should speak in nonsectarian terms, common to diverse religious groups, then no one would have valid grounds for complaint.”

Finally, she answers directly the implicit question—“What’s the big deal anyway?” “[T]he content of Greece’s prayers is a big deal, to Christians and non-Christians alike,” she says, arguing persuasively that overtly sectarian prayer is not part of our heritage and tradition, and that the majority underestimates the power of religious differences to divide communities. “I would treat more seriously the multiplicity of American’s religious commitments, along with the challenge they can pose to the project–the distinctively American project–of creating one from the many, and governing all as united.”

The decision breaks almost along religious grounds, with 5 of the 6 Catholic justices in the majority, and three Jews and one Catholic (Justice Sotomayor) in the minority, there being no Protestants on the Supreme Court since Justice Stevens retired in 2010.

Not one justice expressed support for the view that, in a country with more than 40 million estimated nonreligious citizens, even nonsectarian prayer at public meetings could offend the Establishment Clause.

The best political cartoon on the case is the one that shows the guy with the robes and long beard at the city council meeting exclaiming “Pray in your closet with the door shut to your father who is unseen,” a man in the front row saying “who let this nut job in,” and another man reading the bible open to Matthew 6:6. (“when you pray, go into your room, close the door and pray to your Father, who is unseen.”).

I take a particular interest in the case because I drafted an amicus brief on behalf of the National Conference for Community and Justice, an organization that promotes nonsectarian prayer as part of its message of inclusiveness. On a personal note, my 94-year-old mother recalls an instance growing up in Connecticut, in the 1920s, around the time that Al Smith ran for President, when some neighbors associated with the Klan burned a cross in the field above their house. No one told my mother or her family, but they all understood it to be because they were Catholic. I agree with Justice Kagan that the majority underestimates the power of sectarian religion to divide and harm a community.

Auernheimer Case Leaves Unsettled Key Issues of Internet Freedom

American Flag made from words

Celebrate Freedom. Support a free and open Internet.

The U.S. Court of Appeals for the Third Circuit (federal appellate court for New Jersey, Pennsylvania, and Delaware) in April 2014 decided to duck, that is, not decide, whether the U.S. Department of Justice had overstepped its bounds in prosecuting 28-year-old Andrew “weev” Auernheimer for violating the federal Computer Fraud and Abuse Act (“CFAA”). Instead, the court vacated the conviction on venue grounds, holding that Auernheimer had insufficient contact with New Jersey to try him for the crime there. Neither Auernheimer nor his co-conspirator did anything from within New Jersey and none of the AT&T public web servers were located in New Jersey, leading the court to conclude that venue was improper because “[n]o protected computer was accessed and no data was obtained in New Jersey.” Here is a copy of the decision. The Department of Justice has not yet said whether it will seek to re-try Auernheimer in another jurisdiction.

Auernheimer was convicted of a felony, sentenced, and served part of that sentence in federal prison for violating the CFAA by accessing data “without authorization.”  The crime?  “[R]evealing to media outlets that AT&T had configured its [public web] servers to allow the harvesting of iPad owners’ unsecured email addresses,” as the Electronic Frontier Foundation succinctly summarized the case.  Importantly, Auernheimer did this without bypassing any security measures because AT&T decided not to secure the data he accessed. All he did was enter keystrokes as a publically available URL to access the information. So how is this a crime? It’s true that there are limits on what you can do with information you can find publically available on the Internet. You cannot use it in violation of copyright for example. You cannot use it to perpetrate a scheme to defraud. This makes sense, as the law should. But how does it make any sense for the government to bring all of its criminal sanction power to bear on a person (in the old-fashioned sense of that word meaning a single woman or man) for doing nothing more than accessing data that was left open to the public and then blowing the whistle on the AT&T security lapse? Also, shouldn’t there be a bright line right at the point where a person bypasses a security mechanism? Many people and entities scrub the Internet for publically available data. Could they be liable for criminal violations of law depending on what they do with the data?

The government’s position in the Auernheimer case implicates all of these issues. Similar issues were raised in the case of Aaron Swartz, the 26-year old internet genius and freedom advocate who died tragically in January 2013 while under aggressive prosecution by the Department of Justice for criminally violating the CFAA under circumstances that reasonable people would characterize as civil disobedience with no intent to gain and no harm to the general public.

Unless the government decides to try Auernheimer again in another jurisdiction, it appears that we will not get the answers to any of the question discussed above, at least not in the Auernheimer case, because the Third Circuit decided it on venue grounds only. This issue will arise again and ultimately the courts will give clear guidance on this issue or if not Congress should do so. Vladimir Putin is clamping down on internet freedom everywhere he has control. We should do the opposite everywhere we have control.

Meanwhile, Auernheimer is out of prison and talking to the media again. I wonder if the government is still following him?

I previously reported on this case.   All of the info about the case is available from the Electronic Frontier Foundation.

Dr. Strangelaw or: How I learned to Stop Worrying and Love Deposition Disputes

A courtroom trial is the law at its most glamorous. Hollywood has made it so. Think Spencer Tracy, Gregory Peck, Al Pacino, Tom Cruise, Paul Newman, Denzel Washington, Joe Pesci, and many others.  We all know the roles and the scenes: the cross exams, courtroom speeches, fights with judges, one-liners, and dramatic objections. This is the stuff of legend.

Pity the lowly deposition. Depositions are much more common than trials, at least as vexing for witnesses, and a source of profit for lawyers, but never a fit subject for Hollywood. Until now. We are pleased to present: Dr. Strangelaw or: How I Learned to Stop Worrying and Love Deposition Disputes.

Dr. Strangelaw explores three recurring and frequently misunderstood deposition issues: the speaking objection, the propriety of instructing a witness not to answer based on relevance, and discoverability of a deponent’s conversations with counsel during a break.  These issues rarely make it to the attention of a judge via a motion to compel or motion for protective order.  Recently, with Robert “Bo” Ebby of Hangley Aronchick Segal Pudlin & Schiller, I co-planned a CLE held at the Pennsylvania Bar Institute entitled “Effective Depositions of Financial and Economic Experts.”  Two esteemed judges — The Honorable Mark I. Bernstein of the First Judicial District of Pennsylvania, and The Honorable Mitchell S. Goldberg of the United States District Court for the Eastern District of Pennsylvania – joined the seminar for a discussion on expert deposition issues, including deposition conduct issues; this aspect of the program applied to all depositions.

As a fun way of facilitating the conversation, we enlisted the technology wizards of Trial Technologies, Inc. to help us produce three video scenes of a fake expert deposition.  These scenes make up Dr. Strangelaw. After each scene, we discussed the issue with Judges Bernstein and Goldberg.  The judges’ opinions on the issues were enlightening and worthy of sharing.

The Speaking Objection. Both judges agreed that although a speaking objection is improper, there is ultimately not much a questioning attorney can do to stop the objection from being made and it is unlikely that it will ever be addressed by the court. But both judges also thought that in a rare case the practice might be brought to the attention of a judge and advised counsel to always make a record.

Instructing a Witness not to Answer. This scene probes the edge of relevance. It asks when is it permissible to instruct a witness not to answer on grounds other than privilege, i.e., relevance.  Both judges agreed that a defending attorney cannot instruct a witness not to answer a question on relevance grounds unless the question really goes beyond the pale.  For the specific issue presented in the video scene, the judges agreed that they would not permit a lawyer to ask an expert witness to provide testimony about the income of a spouse for the purpose of illustrating the importance of the fee to the witness when the same point could be made in a narrower, less intrusive way.   The takeaway is that it’s hard to know where the line is on instructing a witness not to answer on relevance grounds.  Perhaps the best we can do is say “we know it when we see it.”

Discoverability of Counsel/Witness Conversation. Here we explore the discoverability of communications with counsel at a break during the deposition.  The judges agreed that if the deponent is a client of the defending attorney, the substance of what is said is privileged, but the fact that the conversation occurred is not.  If the deponent is not a client, the deponent must disclose what was said.