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Judge Dismisses Antitrust Suit Against Fragomen
The American Lawyer
April 02, 2009
It's strange enough that Fragomen, Del Rey, Bernsen & Loewy was sued for alleged antitrust violations. To our knowledge, it's a first for an Am Law 200 firm. But the way it was resolved -- on Tuesday a Manhattan federal district court judge dismissed it before discovery -- was stranger still.
What the heck is going on here? The dispute starts with Ryan Freel, a lawyer who worked for Fragomen from 1999 until he took a job at the immigration consulting firm Emigra as vice president of operations in 2005. While at Emigra, Freel was a member of Emigra's management team. He reported to the chief executive officer and allegedly had access to all aspects of its business, trade secrets and confidential information including, among other things, its strategies, customer lists, pricing, profit and loss data, and the like. In 2007 Freel returned to Fragomen, where Emigra claims he shared confidential information about Emigra's business and began contacting certain Emigra customers on Fragomen's behalf. Emigra sued in Manhattan federal district court, claiming that the hiring was part of Fragomen's anticompetitive attempt to claim a monopoly on immigration work.
If you are wondering at this point how the hiring is grounds for an antitrust suit, as opposed to a trade secrets suit in state court -- well, then you are on the same page as Judge Lewis Kaplan. In dismissing the suit, Kaplan said a contrary conclusion would turn many disputes over the hiring by one competitor of an employee of another, the stuff of everyday commercial tort claims, into attempted monopolization cases. He also said that Emigra had failed to open its own files to present information concerning its operations that might be expected to support or undercut its allegations that Fragomen controlled the market. "In short, what Emigra seeks to do here is akin to engaging in a game of stud poker in which it would require its adversary to disclose its hole card before Emigra places its bet," Kaplan wrote.
Plaintiffs in the case were represented by Michael Pinnisi of Pinnisi & Anderson. Fragomen's counsel was William Phillips, Charles Buffon, and Andrew Ruffino at Covington & Burling.
This article first appeared on The Am Law Daily blog on AmericanLawyer.com.
