Hello Lattie,

Long time no speak.

Anyway, I just wanted to comment that anyone who thinks that the Paul Hastings lawyer would be a barrier to settlement in this instance doesn't have a very realistic view of NY BigLaw.

The practice almost without exception in these cases is to pay up, usually before a complaint is filed. Nearly every major firm in NY has a discrimination complaint skeleton or two in its closet -- but you've never heard of most of them. With good reason. A check is written, and most people (not Charney, obviously) take it and shut up -- because they want to order from Seamless Web in this town again.

But Charney decided not to play ball from the very beginning here. Placing his complaint with the NYO? Becoming phone pals with Lattie? That's not cricket, as the game is usually played, and at that point to settle without fighting back creates a living legend for S&C that it will be combatting at every on-campus interview from here to eternity.

Now, without knowing much about S&C of recent vintage, I have to add that Charney's complaint struck me as deeply bizarre. I won't bore you with all of my thoughts on it here, but I would expect that S&C thinks it has a reasonable expectation of winning, and not much incentive -- if any -- at this point to go for a quick settlement, since Charney let all the cats out of the bag. At this point, it might as well spend the money in your settlement calculator paying Paul Hastings -- and try to disprove as many of the allegations as possible.

But to return to my original point -- when S&C is your client, and when its reputational ability to attract fresh associate meat is on the line, S&C is calling the strategic shots -- not you. Paul Hastings wants to make S&C happy, and if S&C wants a settlement, it will get a settlement, and if they want a fight, they will get a fight. Paul Hastings billables (not large in the scheme of things anyway for a single plaintiff case like this one anyway) are entirely beside the point.

Damn, Elaine beat me to it. I totally agree.

Also, I wouldn't quickly discount the "let's bury this @sshole" mentality that I'm sure many at S&C have at this point.

If he has been fired now, I can only assume it is because S&C believes they have a bullet-proof basis to fire him for cause.

If that's true, he is in real trouble. At very least it's a demonstration of why he should have got a lawyer.

How many Paul (don't call me Weiss) Hastings attorneys are staffed on this, I wonder.

I don't know Aaron Charney or whether any of his allegations are true, but S&C's lawsuit sets a bad precedent that must be stopped.

Here's a young guy who spent seven years of his life just getting educated to be a lawyer. He worked hard enough to earn a coveted job at S&C. A recent post on ABL also reported that Aaron was an important contributor to an large publicized transaction, and probably worked his ass off to earn his spot in the article.

Knowing his background, I don't believe Aaron became a lawyer to sue his first employer for a quick buck. After investing so many years into his legal career, I don't think Charney wanted to be the prima donna of a freakshow knowing that it would ruin his chances of ever being hired anywhere good. Especially not when he seems to have no money, no lawyer and a mountain of student loans.

We don't know what happened at Aaron's settlement talks with S&C. S&C may have offered an unacceptably low number or dictated unsatisfactory settlement terms, and when Aaron asked for better, S&C told him to take a hike thinking that he'd never sue and that even if he did, no one would pay attention.

What S&C has done is bad for all of us. If S&C gets its way, abusive partners will be encouraged to even more abusive. By suing potential whistleblowers, S&C also weakens the bargaining position of associates who have legitimate discrimination claims.

Regardless of whether S&C has a valid defence, it shouldn't be permitted to silence Aaron or harass him with the expense of a countersuit. S&C pours out tons of publicity about how great it is and how diverse it is, so it shouldn't be allowed to muffle criticism. Any one of us could be in Aaron's shoes someday, and if we don't take a stand now, we might not have a chance later when it's us in the crosshairs.

Elaine,

I agree that a sophisticated client like S&C calls their own shots, but S&C's lawyer has a lot to do with how this turns out.

If Fasman wants to end this quickly for David and S&C, he will sit down with them and try to convince them to settle. Not that my unemployed tier 2 opinion is worth anything but I think a $500,000 offer, packaged with amicable "help you get on with your life" provisions would end this. I don't think Charney's been offered this. I think Fasman is lobbying for S&C to bury Charney and offering a fortune's worth of billable hours to help them do this.

I don’t think a ruthless fight is in S&C’s favor. Charney seems tough and principled. He’s ready for a fight. S&C devastated his promising life and he’s not going to let them get away with it. David Lat is covering every event in this story and the more S&C attacks, the more they seem like bullies. This is still a massive firm against one little guy whose only flaw was that he naively believed he had a right to protest discrimination. Obviously a long fight isn’t in Charney’s interest either. So why don’t these cases settle? In my opinion it’s greedy defense lawyers.

The perverse incentive given to defense lawyers with deep-pocket clients is a taboo subject in the legal world but it’s there. In closing I’ll tell about a case I have firsthand knowledge of. It was a gender discrimination case involving alleged physical assault. The company (a sophisticated client with their own in house counsel) hired two law firms who racked up $2 million of fees in just eight months. As a tier 2 law student who has never, and likely will never, be allowed to step foot in a prestigious defense firm, I don't know how your rack up $2 million in fees in eight months but they did it. Seeing that the plaintiff wouldn’t back off, they called back the dogs and settled for about $700,000 and would obviously have been better off settling at the start.

Loyola2L

Loyola2L:

I think you are completely wrong. First, I'm guessing S&C wants to bury Charney quite independently of any advice Fasman might offer them. Second, I don't really see how said burrying is not in S&C's best interest.

Charney has already paraded around slinging all the mud he possibly can. There is not much to lose on S&C's part in fighting these claims with the goal of being vindicated in the end. If they settle now, all of the "dirt" on S&C is already out there (thanks in part to Lat), and it will look like Charney's claims were legit. If they bury Charney, it looks like they were right all along, and that Charney is an idiot.

S&C doesn't owe Charney anything, much less a "help you get on with your life" check. If I were calling the shots, I would bury him.

That's the kind of stuff I suspect Fasman is telling S&C.

I'm with Loyola.

I'm with Elaine. What reason is there to think that Fasman is acting according to the short term incentives Loyola2L identifies rather than his long term incentives and reputational concerns and/or according to his sense of integrity and/or desire to do a good job?

In any event, as others point out, Fasman is not in charge here, in any sense. I am sure there are plenty of folks at S&C focused on this and telling him what to do. I am sure Fasman advises them, and gives them ideas and options (and then executes at their direction), but S&C is more than capable of evaluating those ideas and options and making decisions. It is virtually certain that big picture strategy like fight vs. settle is being decided by S&C, with Fasman playing a supporting role.

How this plays out depends vastly more on S&C's appetite for a fight, how it views its self-interest etc. than anything Fasman says or does.

The fact is - this is all bad for the legal profession. S&C is supposed to be one of the very best and watching it battle this guy to a pulp won't mean anything.

Loyola2L: Settling a case is a little like pleading the 5th amendment. It may cut off your legal liabilities, but many people see it as a tacit admission of guilt. Since S&C's primary concern here is reputation, settling is not in their best interests. This is really a matter of common sense.

A lot of people seem to be under the mistaken assumption that S&C is worried about, as Loyola2L puts it, not "seem[ing] like bullies."

Now maybe some naive bleeding-heart law students might feel for "one little guy whose only flaw was that he naively believed he had a right to protest discrimination." Tell it to the jury.

Bleeding-heart law students do not hire S&C. Jurors do not hire S&C. Large companies with a lot on the line hire S&C. Those companies want to hire tough (some might say bullying) lawyers who kick ass, take name, and win the case. They do not want trust their fortunes to a law firm full of wimps who fold at the first sign of a fight.

Leaving aside the obvious economic argument that it is sometimes worth it to spend more defending any particular suit than it would cost to settle (repeat players, strike suits, etc.), it seems that S&C litigators would like to show their clients that they are not afraid of a fight and that they will win it.

No potential paying client of S&C gives two shits what happens to some publicity whore plaintiff. Most of those clients probably HATE the likes of Aaron Brett Charney and the liability he represents.

And if recruiting loses a couple academically talented left-wing law students who want to spend a couple years at the firm to pay off their loans before going off to save the world, I think the firm will survive.

Interesting but then again, surely these same large corporations could be wondering how S&C managed to allow it to even get to this point in the first place. :(

To add to Law Clerk's point:

In the end, S&C will seem like bullies only if they lose. If they win, it will look like Charney was a narcissistic child and S&C simply defended itself.

That's not to judge the merits etc., but history is written by the winner.

And right now it looks like S&C may already have convinced a judge that ABC has made a misstep, i.e., taken some liberties he shouldn't have.

Ivy3l,
I think 98% of cases settle. I guess a lot of people lack your "common sense" as you put it.
Loyola2L

Law Clerk,
I just want to be clear that I’m not some bleeding heart liberal. I think Charney’s belief that he could protest harassment, and not come out far worse for it, was naïvely idealistic. Further, I would gladly take whatever stress induced harassment Krautheimer and Korry wished to dish out for an opportunity to work for S&C. As a tier 2 grad I’m going to take such abuse from “toilet” firm partners for 1/3 of the money Charney got. I was just trying to remind S&C of how the public may perceive this.
Loyola2L

I'm really glad people are posting the defense lawyer POV. These are the arguments Fasman makes to get clients to fight. But in my opinion, for the reasons I stated earlier, it's in the plaintiff's and defendant's (but not the defense lawyer's) best interest to settle early.

Regarding the claim that settlements encourage further lawsuits, I don't think anyone would ever want to be in Charney's shoes, whether he gets a $500k settlement or a $2 million verdict in 2 years. The guy clearly had greater hopes for his life than this garbage.

How about a poll:

Percentage chance:
S&C wins
ABC wins
Settlement

I say:
S&C wins: 5
ABC wins: 5
Settlement: 90

"If they win, it will look like Charney was a narcissistic child and S&C simply defended itself."

Public perceptions isn't formed by a judge and jury's ruling. The OJ case was just one (albeit extreme) example of this. I for one don't doubt any of Charney's allegations. I just think it was naive on his part to think he could protest them.

You know, there's something to be said for principle here.

If the firm is outraged at allegations of homophobia it believes to be flagrant extortion, there's no reason not to come out swinging.

I mean, Charney violated his ethical duty to his client by attaching that Kodak email. That shit is fucked up. Kodak had nothing to do with this.

Loyola2L: In 98% of cases, people are more worried about liability than reputation. In that situation, common sense dictates settling. But the situation with S&C is, as outlined above, quite different. Think about it.

Charney's alleged missteps aside, what if everything Charney says is true, S&C knows everything he says is true and Fasman knows everything he says is true. What if there is even more dirty (discrimination-retaliation) laundry that Charney isn't aware of, but that S&C and Fasman know about? Does that change anything? Is this just about tactical advantage and winning? No ethical, moral or other professional considerations come into play? What about actually fixing the problem that got all these gentlemen into hot water in the first place? It seems to me that if Charney is correct in his allegations, that S&C, as leaders in this profession, have more at stake than a few dollars, or the reputation of one firm and its 160 partners. Doesn't S&C want to be that gay-friendly firm Jack Scheich so ardently believed/believes them to be? Or is it all a game? I'm afraid that truth may lie somewhere in the vicinity of "these are rhetorical questions that need no answer." Pity all of us, if that's the case. We have a long way to go.

It isn't the jury's ruling that will make Charney look like a narcissistic child -- though that would help -- it is what S&C will do to him in the meantime (and at any trial if there is one, which I doubt). As 2:35 points out ABC has made himself vulnerable, and attaching the Kodak email is only one of many examples. S&C will exploit that and many other things to full advantage.

Perhaps this breaks ABC, perhaps it stiffens his back and makes him go for broke. (I think at some point ABC takes a modest settlement and calls it a day)

But the point is, up til now it has been all ABC and I suspect he has played all his cards. Its S&C's turn, and when it is all said and done, I bet ABC will look a lot different than he does today.

In the absence of some "smoking gun" that would really hurt S&C, I see NO reason for them to settle this case. It might be slightly different had Charney not acted like such a media whore to begin with, but at this point, S&C is much better served by spending as much as necessary to "bury" him.

Charney crossed plenty of lines in his complaint; lines that needn't be crossed if your only motivation is to seek redress for sexual orientation discrimination. I don't feel the least bit sorry for him.

Oh, and as for the "smoking gun," I think it's safe to say that one does not exist. Otherwise I'm sure we would have heard all about it by now.

Charney is toast.

There's no reason to think we would have heard all about any smoking gun by now.

The smoking gun might be internal S&C email etc. that Charney doesn't yet have.

I agree though that S&C has evaluated that possibility -- likely checked out the emails etc. -- and decided to proceed.

S&C's suit is the best evidence of no smoking gun, though it might be a bluff or just an interim tactic while they still are sorting through everything.

2/3/95

Loyola2L, you're offering a cartoonish view of how defense side litigation works. High stakes litigation in general is basically extortionate, everyone knows it: defense lawyers, their clients, insurers. But that's not really because defense lawyers are driving up billables for their own sake, it's because complex litigation is difficult and time-consuming.

Your statement that discusison of attorneys' fees and costs is a taboo subject with a deep-pockets client is downright laughable. What business would operate in that way? The discussion of legal fees is a subject of constant discussion, grousing, tension, renegotiation, etc. Defense firms who try to drive up their billables to reach into a clients' deep pockets, for no other reason than keeping the litigation going, will be summarily fired. Like with all services, success in defense litigation means results, not a client hemorrhaging money in legal fees. Now this is not to say it never happens, just that it's ridiculous to think that its some kind of norm, and is even more unlikely here. This case involves saving face for S&C, prestige is the paramount interest, the billables are not significant for either S&C or their defense firm. And...really...you think $2 million in fees is that much? Major class action litigation can cost as much as 5 times that much in 8 months. It's the cost of litigation that every client tries to avoid and that most defense lawyers try to get their client to avoid. Thus, 98% settlement rates. Anyway, there you go.

S&C is only showing how evil it really is. The arrogance of the white shoe firms is atrocious. Charney is a brave man, and we are all cowards for not jumping in to help - myself included. In the end, we will all suffer if Charney loses this battle.

Loyola2L,

This isn't meant to be mean. But don't you think S&C is in a hugely better position than you to evaluate Fasman, his performance, and motives.

For a large number of reasons, among them: (1) they are closer to the situation and can evaluate the advice he gives and see if it seems motivated by self interest; (2) they have an incentive to make sure Fasman doesn't work that way; (3) they are better connected in the legal community and probably know how to pick a good lawyer that acts responsibly; (4) they are in a position to hurt Fasman if he doesn't; (5) they are more sophisticated participants in the legal market, with a large number of hugely talented lawyers, with many years of experience and so are hip to the simple point that lawyers get paid more the more they work.

S&C is evil: Seems like you have pre-judged the case, or do you have inside info that supports your belief that Charney is in the right?

"But don't you think S&C is in a hugely better position than you to evaluate Fasman, his performance, and motives."

Of course, but Fasman still has their ear. He was persuasive enough to get them to pick him. Who knows what else he can get them to do.

"He was persuasive enough to get them to pick him. Who knows what else he can get them to do."

Come on. It is not like Fasman is representing some senile and vulnderable client. If anything, S&C is more sophisticated than Fasman. The notion that Fasman can work some Jedi mind trick on S&C so he can run up the bill is simply fatuous.

I must agree with Loyola2L - it is preposterous to suggest that S&C, with their well known lack of legal knowledge and complete unfamiliarity with litigation could possibly evaluate the quality of their legal advice with any reliability. I'm sure they are also completely unfamiliar with how law firms bill, and how to tell whether a legal bill is inflated or not.

Seriously, just because they're named in the law suit this time doesn't mean that they've suddenly forgotten everything they know. If the people handling the matter at S&C thought that Fasman was giving them bad advice, they'd fire him. More likely they think his advice matches very well with what they thought of the case already.

I think Loyola2L is just trying to get people going. He can't possibly be this stupid...

Rodge Cohen: "You're charging us too much. Let's take a closer look at your billables."

Fasman: "These aren't the billables you're looking for."

Rodge: "These aren't the billables I'm looking for."

Fasman: "I can go about my business."

Rodge: "You can go about your business."

Loyola 2L, why don't you take a look at rankings of firms who practice employment law. If you did you would realize that Paul Hastings is the best there is for big time defense in these types of suits. S&C is not dumb enough to choose someone like Fasman because he somehow tricked them; the fact of the matter is Fasman doesn't have to sell himself or trick anybody into doing what he wants because Paul Hastings is the best. Both S&C and PH know what the hell they are doing.

Here's is a fact you should know, PH has represented other major firms in discrimination/retaliatory discharge cases...and guess what they won. So the fact that you think you are such a brilliant litigation strategist compared to the best in the business is astonishing.

I don't want to repeat myself. Please re-read and fairly consider the credibility of my earlier posts. Please also refrain from needless and childish rhetoric.

I'm going with a mixutre of (1) the Loyola 2L doesn't have a clue; (2) he's backed into a corner and flailing for reasons to support his original position; (3) has too fragile an ego -- related to the fact that constantly talks about being at a tier 2 school -- to admit he has reconsidered and changed his position.

Any ideas as to the basis for the TRO papers. Could be:

1. Violation of duty of confidentiality to clients (Kodak email, other references in the complaint)

2. Misapproriation of the S&C partnership agreement

3. Defamation, i.e., he posted the complaint on the web before filing, S&C claims it contains false allegations and because it wasn't a court filing at the time is not protected.

4. Violation of ethical or perhaps some fiduciary duty by tape recording conversations without the knowledge of others (that's allowed under NY law, but not the ethical rules; the question is whether Charney fits within an exception for acting in private capacity)

Anything else?

Oh no I haven't changed my position at all. My posts at 12:48pm and 2:31pm reflect my advice. I think the vigorous protests by defense lawyers illustrate how they're able to get their clients to do things which are not in their best interest.

Also, my complaint about my tier 2 school is the lack of employment opportunities it offers. Loyola is actually a great school otherwise. But what's that worth when firms don't value it on a resume?

Let's all just relax and think about think honestly and rationally. If we can't be intellectually honest on an anonymous forum, then where can we be honest?

Can we start a fundraiser to raise the money that Loyola 2L won't be making cause he's gonna be stuck at a "toilet" firm, so that he'll shut up about his crappy situation on this (and every other) ATL board.

Please? (to 3:58's unrealistic but highly appreciated request)

Loyola,
Why did you choose to go there then? I'm a 2L as well, and I was clearly away of firm hiring practices when I chose what school to go to. I'm sure you knew that going to a "2nd tier" law school would make it an uphill fight to land a biglaw job... so what did you expect?

4:01

I didn't listen to advice clearly given to me and I was swayed by Loyola's propaganda. Many people told me to defer and re-apply. I applied very late and although my credentials actually were within the range of even say a Harvard, I wound up being waitlisted at all the top schools.

Then there was Loyola's propaganda. For example they portrayed their OCI list as including all the top LA firms. It does, but they didn't note that these firms pick very few Loyola grads and that in fact Loyola (unlike say a UCLA) allows pre-screening for 100% of their resumes. As another example Graham Sherr advertised how Loyola has one of the largest career services offices in the country. Size isn't everything I guess.

I'm actually kind of over it though. I started posting my complaints here after witnessing what I though was a shocking exchange between an adjunct prof (who is a biglaw partner) and a Loyola student. The Loyola student basically asked him about job opportunities and the adjunct said something which was the equivalent of laughing in his face. That, combined with my lack of one summer position interview despite being top 25% sort of pushed me over.

Any way, enough about my misery. I really am coming to terms with the limited opportunities I will have and don't really feel a need to complain as much about them.

Loyola2L

Dude, I am starting to appreciate the fact that I had 40 on-campus interviews back in September. We kind of take it for granted here

Lavi Soloway:

What would you say if it turns out that Charney is indeed an extortionate, narcissistic loon whose claims have no basis in fact?

Loyola2L actually was one of the top law school applicants -- could have gone to Harvard -- but fell victim to a Loyola Jedi mind trick.

Could happen to anybody. Watch out S&C.

No Harvard definitely did not offer admission, otherwise I would have accepted in a heartbeat. Please stop the childish rhetoric. Really it's enough.

Loyola 2L, can you please stop hijacking threads. How about you get As this semester and transfer?

Can we get off of Loyola2L's self-absorbed posts, and back to S&C v. Charney?

Think Charney gets a lawyer now?

He really should.

why would you ever go to loyola?

"I could have gone to harvard!"

shut up. no you coudlnt.

work hard and transfer to baltimore community college school of law if youre lucky.

Loyola 2L,

I believe at this point people are offering "childish rhetoric" because you are so clearly wrong, yet insist on refusing to listen to even the most basic logic.

The notion that S&C is some sort of unsophisticated client who doesn't understand how billables work or would somehow be "duped" into continuing litigation despite their desire to settle because Fasman wants to drive up billables is seriously laughable. But for some reason you continue to press on with your ridiculous argument that Fasman is driving this train ny "tricking" S&C into choosing him and by Jedi Mind Tricking them into acting in a manner detrimental to their interests.

So, all we have left is our childish rhetoric. Because if you're going to act like a child, we're going to treat you like a child.

PennLaw, did you really get 40 on campus interviews? wow. i'm amazed that so many employers travel all the way out to penn state! what's pittsburgh like?

To be clear, I could not have gone to H or I would have. Please stop talking about my tier 2 woes, which were raised by 3:46, and are apparently too depressing for the elite school graduates who frequent ATL.

Another actual lawyer,
Why not just make your points, like I did at 12:48 and 2:31 (and which I stand by) without the rhetoric? What's the point of characterizing Fasman's influence as a Jedi mind trick? You would never do that in court, I hope, so why do it here?
Loyola2L

Loyola2L: I think people are focused on your statement that "my credentials actually were within the range of even say a Harvard" but you applied late and did not reapply because of Loyola's propaganda.

To be fair, you are sorta suggesting that but for Loyola's propaganda, you mighta gotten into HLS a year later.....

You might want to just leave it at, "Loyola was my best option at the time."

That's crap, Loyola. You've raised your "tier 2," "toilet firm" woes yourself more than once. Obviously, I don't know your grades, but based on your personality as manifested through your posts on this site, you're unlikely to get past the screening interview anyway. I went to Fordham. We have girls who throw coffee at the librarians; it's hardly an elite law school. Stop demonstrating your inexperience, and start doing some work, so you can get your grades up and perhaps get a 3L position.

Fair enough 4:35. I'm actually over the disappointment. The last week I went from hitting a real low when I finally gave up hope and accepted my position, to slowly dealing with. I actually don't need to talk about it that much anymore so no need to hijack the thread as 4:24 put it.

4:36. I didn't even get a screening interview, but hot coffee at librarians? Wow. Why hasn't David covered that story?

4:28 - nice try

Loyola 2L,

"Why not just make your points, like I did at 12:48 and 2:31 (and which I stand by) without the rhetoric?"

Because trying to make points with you at this point is like trying to talk a brick wall into cooking me breakfast.

But because you apparently missed the point I did make, I will try it again:

S&C is a sophisticated client, not prone to the undue influence you suggest by way of Fasman convincing them to press litigation even after they have determined it is in their best interests to settle.

By the way, your "points" that you think you scored at whatever your earlier posts were is precisely why we can't argue with you anymore.

The notion that billable hours and rates is a tabo subject is ridiculous. Every major client discusses billables vitrually every month when they get their bills. Clients bitch more about bills than they do anything else.

Fasman's incentive isn't to drive up billables, it's to keep S&C happy to ensure they will return as a client (which they apparently have - Fasman has represented them before). It's not like Fasman will personally pocket the fee for this representation. The total billed on this matter will be split amongst the partnership, like every other matter.

And while YOU might think it's in the best interests of a party to settle early, you have to understand the reasons why others don't share your view. Charney has already gone public with his allegations. A settlement now is tantamount to a tacit admission of guilt. S&C has every reason to fight these allegations. It's not like S&C wanted to settle, and Fasman told them it's a bad idea. FYI - the client makes the decisions, not the lawyer. Let's not pretend that S&C isn't a sophisticated client here - and likely runs every decision by their own employment partners anyhow.

So you see, your points are without merit, and you compound this error by continuing to stand by them. THAT'S why I and others resort to rhetoric. Because the task of actually trying to convince you that you're wrong - when you so clearly are - is more trouble than it's worth.

So what sort of strategy do you recommend another actual lawyer? (My strategy, which I stand by, is stated at 12:48 at 2:31.)

Loyola2L:

There is a HUGE difference between suggesting that you think settlement etc. is the strategy S&C should pursue, and arguing -- as you do -- that if S&C pursues a different strategy it is so prima facie unreasonable that it must be because Fasman has Jedi mind tricked them to get some billables for his firm.

Honestly? While Charney is proceeding pro se, I would throw so much litigation at him his head would spin. Remember, this guy is a 4th year finance associate. I don't doubt that he is a smart guy, but I DO doubt that he has any idea how litigation works. I am a midlevel myself, and if someone asked me to help them out on a corporate deal, I can promise you I'd be worthless to them. Point being, you need more than smarts to advance in litigation - you need experience.

"Litigation," by the way, is not simply trial work. Litigation, as those who practice law know, starts from the moment the complaint is filed. Motion practice, pleadings, document requests and objections. It means knowing the Federal Rules and the local rules. What are interrogatories? How many do I get? What is the proper subject of interrogatories? How can I serve a subpoena to demand a deposition or documents from a witness? What about the opposing party? My guess is, Charney has no idea how to answer any of these questions.

And remember, he's not an employment lawyer either. So there's another incentive to press on with litigation - he simply does not have the experience in employment law to understand the nature of his claim and the limits to his claim. Sure, he can hit Lexis all he wants, but does he really understand the intricacies of how employment law works? No way. I certainly don't.

So in my opinion, as long as Charney is acting as his own counsel, it's almost like a 12 year old kid trying to bat at the big leagues. No disprespect to Charney, but he's just well out of his league. He should be smart enough to hire someone who knows how to fight the fight he just picked.

So there it is - my strategy is as long as Charney is pro se, to fire every litigation weapon I have at him - motions, pleadings, objections - you name it. Note that I am not counseling dilatory tactics or frivolous motions that have no merit. I'm saying that if I have a possible cause of action, I'm going to countersue with it. If I have a possible motion available to me regarding a deificient complaint or failure to serve properly, I'm going to use it - whereas I might not in other situations.

If you step into the ring, you need someone who knows how to fight a bull - not someone who knows how to close finance deals.

Loyola2L,

The interesting question is NOT why has Fasman been sucessful in Jedi Mind Tricking S&C into pursuing a strategy that you believe is contrary to its interests. I think it is pretty clear that is not what happened.

Rather, the interesting question -- from your point of view -- should be, why has a highly sophisticated law firm decided to pursue this strategy, i.e., given that S&C knows a lot more about its self interest than I do, is more sophisticated than I am, and given that it has greater incentives to actually act in its self interest than I have when I offer my off-the-cuff opinions as to S&C's self-interest, why might it actually be in this firm's self interest to do something I initially thought it shouldn't. That would be the intellectually honest approach.

AAL. Interesting. I have to admit that Charney is at a huge disadvantage as long as he's pro se. But then again judges are more lenient with pro se plaintiffs and I perceive Charney to be a damn tough, brave and principled foe. I simply do not expect him to back down. He's a Columbia grad and he knows how to research this stuff. There's also the risk that if S&C bullies him, some heroic plaintiff's firm will step in and help David vs. Goliath. There's also the PR nightmare which is David's blog.

Overall I stand by my advice but think you make a good point about his disadvantage as a pro se plaintiff.

5:11,
Childish rhetoric like "Jedi mind trick" and a self-proclaimed ability to decide what is and isn't interesting is never intellectually honest.
I'm going to take a break from this forum but I'll be back later and I think this debate is interesting.
Loyola2L

Loyola2L, what makes you think Charney is ready for a fight? He's already shot all of his ammunition. He's now facing potential damages for various misappropriations: if he hires a lawyer to defend himself, the lawyer will tell him to settle for a walkaway because the net expected value of the case is less than the expected expense of litigating it; if he doesn't hire a lawyer to defend himself, he's poorly situated to defend himself in a PI hearing against experienced litigators who know what they're talking about. He's a corporate attorney who has likely never taken a deposition. If his pay has been cut off, he can't afford to both litigate this case and work at a real job; so every day that this case goes forward costs him money. S&C has little incentive to settle (much less for half a million), because that means that every Melissa Lafsky who wants to quit her job anyway just constructs a scenario where a partner yells at her and sues and she gets half a million instead of two weeks accumulated vacation pay; it's cheaper for them in the long run to fight, even if it takes half a million to litigate, and it won't take that much or that long.

Charney's complaint showed both a complete lack of judgment and that he is out of his league trying to litigate this by himself; that he filed it pro se shows that no employment lawyer thought his claims had real merit. S&C has nothing to lose: Charney never even suffered adverse employment consequences until he filed his complaint; S&C's story will be that Charney complained, they found the allegations meritless, they still accommodated him by putting him with a gay partner; when he started botching that assignment, he sued with a conspiracy theory. That sounds a lot more plausible than Charney's complaint.

My prediction: this settles for zero plus a Charney apology.

I think all the silly cheerleading for Charney on boards like these by people who don't know what they're talking about has deluded lots of folks (Charney included) into thinking this is some sort of game that Charney is winning (see the ridiculous assumption Lat jumped to about a settlement yesterday). If S&C thought Charney could win a case in court, they would have settled back in May. Funny thing about a law firm is that they generally have a lot of experience judging the merits of cases. Now Charney is effectively ruined. He will almost certainly be disbarred for violating DR-4, which is pretty ironic considering what he was trying to do. It's pretty easy for a law firm with a closed email system to figure out all the people within the firm who ever received an email, so it's not a brilliant move to leak said email to your imaginary internet friend. If Charney had worked with a broader group of people at S&C instead of the same people over and over again, he might have learned that a lot of the sharper folks in the place don't take kindly to people fucking with their paper. Maybe he can get a job as an administrative assistant since he has 3+ years experience in that line of work.

Perhaps Charney is using someone for advice who is not willing to serve as counsel of record. That allows Charney to continue to look like he is doing this pro se, while getting help from someone who can guide him, even review motions, etc. I really doubt he can do it, or IS doing it, himself. Maybe it violates some ethics rules (I have no idea) but I am sure there are people who are sympathetic and willing to help in this way as long as it won't become public.

One issue receiving insufficient consideration is the tapes Charney claims to have. He cited them in his complaint and the remainder of the complaint went out of its way to refer to various conversations within the firm. Don't know if he held anything back, but it's possible he has tapes of most of the conversations he recounts in the complaint. That might not be enough to win, depending on the other evidence, but it complicates S&C's position. However, I wonder if Charney's taping ran afoul of NYS law, or otherwise gave rise to an S&C counterclaim.

Wouldn't Charney have produced copies of the tapes by now if he had them? What did he do, threaten S&C with tapes when he demanded money without any proof that he had them?

Who knows. Let's see what comes out in the trial.

NYS allows a party to a conversation to tape it without giving notice to the other participants.

Such taping, however, is not permissible under the ethical rules applicable to lawyers. However, ABC might be able to argue that he was not acting in his capacity as a lawyer when he taped, i.e., he was taping in his personal capacity, and thus did not run afoul of the rule. But I don't know whether such an exception has been well-developed, what its scope might be, etc.

Going back to an earlier point, S&C might just press the issue to bury him in paper.

Loyola 2L:

Re your rants about tier II school (Loyola), may you can learn something from this case:

1. Krautheimer attended a tier V school (WNESL). I bet he worked his ass off in law school. He then took a risk and went for an LLM at NYU.

So may you should trier harder in law school yourself, and follow Krautheimer's example and take an LLM at NYU. May then you can write a letter to S&C asking them to hire you. May be you will get a chance to work with various personalities mentioned in the suit.

Junior Partner
Harvard JD '98

LOL 10:10am

Loyola2L is clearly an S&C plant. The tier 2 stuff is an elaborate ruse intended to throw us off the scent. Now he's playing "good cop" to Fasman's "bad cop" and trying to make a measly $500k seem like a fair settlement.

Zach Fasman doesn't read books. He stares them down until he gets the information he wants.

Zach Fasman can lead a horse to water AND make it drink.

Junior Partner
Harvard JD '98,

Krautheimer sounds like [and looks like] a real pig.

I don't think anyone should consider him a role model.

BTW - your credentials look impressive - but go get a life. A person's self-worth being tied to where they went to school or where they work is pathetic.

So - who else still feels like there are PR people writing on here?

Last night there were a bunch of comments that seem to have disappeared- I thought this site said, unlike WSJ, that it doesn't censor.

That's interesting. Were they more conrtoversial than usual?

Lat doesnt censor, most likely his computer server crashed and they were all deleted ....

What type of posts got the boot? More pro-S&C public relations posts or more Team Aaron posts or a mixed bag?

I can't seem to understand how Charney could have missed so many thing.

Did he not finish law school and know that you can not go around and write anything you want against the defendants? I mean to me it seems that he was more interested in the publicity surrounding this case rather then actually getting justice for his alleged harassment.

Who knows what he was thinking. We can't put ourselves in his shoes. I mean, imagine the pressure.

3:01, I concur, emphatically.

I still think the kid's been brave. Maybe in a wacky way - but he's brave.

I agree that he was brave to bring such charges against such a powerful law firm but I think we will all agree that he got caught up in the hype of the case and grossly mismanaged any leverage that he may have had.

I don't think ABC was thinking of much except being self-righteous and making a big splash.

Let me preface my comments by saying that if what ABC alleges is true, justice is on his side. That said, I suspect the truth is more nuanced.

But even if ABC is 100% accurate, that doesn't mean he is the most sympathetic figure either.

A lot of his complaint struck me as childish and narcissistic -- which ultimately may be his undoing. It is filled with so much gratuitous and counter-productive stuff:

1. He sells out a number of people who supported him by identifying them in the Complaint.

2. He attaches a copy of the S&C partnership agreement, for the flimsiest of reasons (completely unnecessary for his complaint)

3. He references all sorts of client engagements and attahces the Kodak email, again for no real reason.

It was a Complaint designed to embarass S&C as much as possible -- not just about the wrongdoing, which is totally justified if true, but on every level ABC could think of -- and without much care for the friends he dragged into it publicly.

It certainly was not a professional complaint designed to set up his case. (At the most basic level, why tip off S&C who your best witnesses might be). It opened himself up to tons of vulnerabilities (that plus the idiotic step of posting it on the Internet before -- as opposed to after -- filing it).

Just because ABC may have suffered discrimination doesn't mean he is the best guy. It just means he suffered a wrong. But jerks sometimes are wronged too, and I suspect ABC is something of jerk too.

I don't think ABC was thinking of much except being self-righteous and making a big splash.

Let me preface my comments by saying that if what ABC alleges is true, justice is on his side. That said, I suspect the truth is more nuanced.

But even if ABC is 100% accurate, that doesn't mean he is the most sympathetic figure either.

A lot of his complaint struck me as childish and narcissistic -- which ultimately may be his undoing. It is filled with so much gratuitous and counter-productive stuff:

1. He sells out a number of people who supported him by identifying them in the Complaint.

2. He attaches a copy of the S&C partnership agreement, for the flimsiest of reasons (completely unnecessary for his complaint)

3. He references all sorts of client engagements and attahces the Kodak email, again for no real reason.

It was a Complaint designed to embarass S&C as much as possible -- not just about the wrongdoing, which is totally justified if true, but on every level ABC could think of -- and without much care for the friends he dragged into it publicly.

It certainly was not a professional complaint designed to set up his case. (At the most basic level, why tip off S&C who your best witnesses might be). It opened himself up to tons of vulnerabilities (that plus the idiotic step of posting it on the Internet before -- as opposed to after -- filing it).

Just because ABC may have suffered discrimination doesn't mean he is the best guy. It just means he suffered a wrong. But jerks sometimes are wronged too, and I suspect ABC is something of jerk.

Oh yea. There are definitely some professional public relations people posting on here. It's cute is a strange kind of way.

We can't really assume that any of those people were his friends though 3:26. Also, the "tipping off about best witness stuff" makes no sense unless you are suggesting the firm would pressure the witness in some way? That would be horrendous if true and make anything Charney has done look like tidlywinks.

Hmm - I didn't see anything on the Internet that wasn't a copy of a Complaint which had the Court stuff on it.

S&C is not going to pressure witnesses. They are going to talk to them and get information, maybe lock them in in ways ABC doesn't expect, cut them off from ABC so he can't do the same.