It should come as no surprise that as the economy continues to sputter, falter, or whatever your term of choice may be, that many real estate  brokers have taken an increasingly aggressive stance in protecting their commissions. The flip side of that same coin is that the other parties to the deal have likewise hardened their positions of refusing to compensate brokers whom they believe did little or nothing to bring the deal to fruition.

And that is precisely what happened in the breach of contract and co-brokerage agreement case of Susan D. Fine Enterprises LLC v. Steele.

Setting forth the law underlying brokerage commission agreements in New York, the Court stated as follows:

“It is well settled that a broker seeking a commission must establish that: 1) she is duly licensed; 2) she had a contract, express or implied, with the party to be charged with paying the commission; and, 3) she was the procuring cause of the sale. Greene v. Helha. P, 51 NY2d 197,206 (1980) … To qualify for a commission, however, a broker need not have been involved in the ensuing negotiations or the completion of the sale … Rather, where as here, the broker was not involved in the negotiations leading up to completion of the deal, the broker is still entitled to a commission
if she can demonstrate that she “created an amicable atmosphere in which negotiations proceeded or that [she] generated a chain of circumstances that proximately led to the sale.”

But here’s the sticky part:

“As to whether plaintiff was the procuring cause of the sale, courts are in agreement that the issue of procuring cause is a generally a question of fact to be determined at trial.”

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Recently, I attended a non-party deposition in a commercial litigation matter arising out of a dispute over who is the rightful owner of a particular property in New York. As is often the case, the attorney conducting the deposition was less than thrilled at the answers given by the witness. So, first he tried to refresh the witness’s recollection. Then he tried to trick the witness by suggesting answers to the questions that he knew were false. And then he proceeded to remind the witness – at least 3 times – about the penalties for perjury, and suggested that incarceration was a foreseeable possibility.

While I didn’t care for his tactics – particularly the latter two – what came next was inexcusable.

He flat-out charged the witness with disgracing his religion by failing to give “better” answers to the questions.

This attorney has made it to my (extremely short) list of people that I don’t communicate with unless it is in writing. And it is attorneys who practice in this fashion that has led to the “sterling” reputation that has made us the butt of so many lawyer jokes.

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In a case that should sound a warning to ill-tempered, egomaniacal bosses everywhere, a jury recently awarded five of former Guess CEO Georges Marciano’s employees a total of $370 million  on their counterclaims for intentional infliction of emotional distress, libel and defamation.

The initial action, which sought monetary damages for these former employees’ alleged breach of fiduciary duty,   embezzlement and fraud was filed by Marciano roughly two years ago. Over the course of the last two years, however, Marciano disregarded numerous court orders directing that he provide certain discovery, such as appearing for his Court-ordered deposition, which ultimately led the presiding judge to “strike his complaint,” which is legalese for dismissing his case. Since he also refused to comply with the Court’s orders directing him to respond to the employees’ discovery demands on their respective counterclaims, the Court also struck his answer to their allegations, which essentially took away his attorneys’  ability to defend against the employees’ claims.

Lest you think that such conduct is regular, standard fare, Marciano apparently went through seventeen (17!!!) attorneys on this case over the past two years. This is simply unheard of.

At the damages portion of the trial (based on Marciano’s misconduct, the judge had already precluded him from contesting liabilty), Marciano made a surprise appearance, and was completely unapologetic: he conceded that he was on a crusade against these former employees.  Given the size of the verdict against him, it certainly seems that his testimony made quite an impression on the jury.

The moral of the story is clear: if you disregard with impunity a court’s orders and carry this arrogance before a jury, you do so at your own peril.

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A trade secret theft lawsuit that was recently filed in upstate New York by the Price Chopper chain store illustrates rather vividly how having your small business’s trade secrets – in this case pricing information – can dramatically impact your bottom line.

In its initial suit papers, Price Chopper claims that competitor Giant Market would have someone consistently and surreptitiously obtain copies of Price Choppers’ fliers that would announce their special sale items, and then undercut those specific sales items in their own advertisements, thereby depriving Price Choppers’ sales of any measurable impact, and giving Giant Market an unfair competitive advantage.

If true, the details set forth in Price Choppers’ complaint are indeed tantalizing, and if this case were ever to go to trial, would certainly have a great deal of jury appeal. For example, Price Chopper apparently has videotape of someone sneaking into the warehouse where their pre-publication fliers were stored, and then handing them to a Giant Market employee. And it appears that they have videotape of this occurring on several occasions.

One important tidbit to glean from this story is this: trade secret protection is not limited to proprietary technology and formulae; if your product marketing and pricing took time, effort, research and expense to develop, and is not readily available to the general public, it can be applied to that as well.

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