by Lee Gesmer | Nov 9, 2008 | Antitrust
From a Department of Justice press release, November 7, 2008 –
WASHINGTON — Attorney General Michael B. Mukasey issued the following statement on the resignation of Assistant Attorney General Thomas O. Barnett of the Antitrust Division:
“Tom Barnett has been an effective enforcer of the antitrust laws and a strong advocate for consumers. Under his leadership, the Antitrust Division has increased cartel enforcement to record levels with unprecedented fines and prison sentences, improved the efficiency and efficacy of its merger enforcement, and enhanced cooperation with our foreign counterparts.”
….
Barnett was confirmed by the Senate as Assistant Attorney General of the Antitrust Division on Feb. 10, 2006. He became acting Assistant Attorney General on June 25, 2005, and previously served as Deputy Assistant Attorney General since April 18, 2004.
Barnett’s resignation is scheduled to be effective Nov. 19, 2008.
Click here for full press release.
by Lee Gesmer | Nov 8, 2008 | Noncompete Agreements
Many people knowledgeable about these two companies may be surprised to learn that IBM has persuaded a U.S. District Court judge in New York that indeed, they are competitors. The judge has enjoined Mark Papermaster, a 25-plus year employee of IBM, from working for Apple Computer. While at IBM Mr. Papermaster was a product development executive in the area of blade servers. After Apple engaged in an extensive, year-long interview process it hired Mr. Papermaster as the senior executive for the iPod/iPhone development team.
Of course, Apple was well aware of Mr. Papermaster’s non-compete agreement with IBM, which prohibited him from working for a competitor, and I assume that it seriously considered whether it could defend a challenge of this sort by IBM. Apple probably concluded that servers and iPods were sufficiently far apart that it would be safe hiring Mr. Papermaster. The fact that this decision went against it highlights once again the extent to which the outcome in a case of this sort is determined by the disposition of the judge who happens to draw the case, rather than the underlying legal principles, which give the judge an enormous amount of discretion to rule either way.
The Justia page for this case is here. It appears that Justia has decided to make access to court filings in the case free of charge, and therefore the legal memoranda arguing each side’s position are available (docket entries 4 and 10).
Docket entry 18 is the judge’s order, which reads in part:
For the reasons that will be stated in a forthcoming Opinion, Plaintiff’s Motion for Preliminary Injunctive Relief is GRANTED. It is further ORDERED that Defendant, Mark D. Papermaster, will immediately cease his employment with Apple, Inc. until further Order of this Court; . . . and it is further ORDERED that the Court will hold a status conference on November 18, 2008, at 10:00 am, at which it will discuss, and encourages the Parties to discuss beforehand, an expedited schedule for discovery and trial.
Expect significantly more activity in this case (including an emergency appeal) if Apple and IBM aren’t able to work out their differences out of court. I suspect that IBM knows that it got a somewhat lucky role of the dice on this ruling. At least on the face of it, a settlement that assured IBM that Mr. Papermaster would stay away from any server development at Apple should be enough to resolve this dispute.
Of course, my discussion is based on the public record disclosed in the court filings. In the world of Steve Jobs (who, according to the court filings, was directly involved in the decision to hire Papermaster), what you see and what’s really going on can be very different. For the back story on this case, see this Fortune article and this Cringely column, from which the following quote is drawn:
Apple still hopes to convince a judge that it is correct about Papermaster. But if Apple fails in that, Steve Jobs will just pick up the phone and choose IBM Microelectronics as the fab to build the next generation of Apple’s PowerPC processors – a contract worth billions, but ONLY if IBM drops all legal action.
Apple will win in the end — I guarantee it. And the way Jobs negotiates, Big Blue will probably end up losing money on the chip deal, too.
Update: This case was settled in January 2009.
(more…)
by Lee Gesmer | Nov 6, 2008 | Humor
Nation Finally Shitty Enough To Make Social Progress:
Although polls going into the final weeks of October showed Sen. Obama in the lead, it remained unclear whether the failing economy, dilapidated housing market, crumbling national infrastructure, health care crisis, energy crisis, and five-year-long disastrous war in Iraq had made the nation crappy enough to rise above 300 years of racial prejudice and make lasting change.
“Today the American people have made their voices heard, and they have said, ‘Things are finally as terrible as we’re willing to tolerate,” said Obama, addressing a crowd of unemployed, uninsured, and debt-ridden supporters. “To elect a black man, in this country, and at this time—these last eight years must have really broken you.”
See also:Black Man Given Nation’s Worst Job
by Lee Gesmer | Nov 6, 2008 | Trade Secrets
Steve Chow at Burns & Levinson has sent me the legislation attached below, which the Massachusetts Uniform Law Commission, of which he is a member, filed with the Massachusetts House of Representatives on November 5, 2008.
This is the sixth attempt since 1995 to get the 1985 Uniform Trade Secret Act (UTSA) enacted in Massachusetts; although there was no opposition, the furthest that a prior attempt progressed was to third reading in the House. The uniform act has been adopted by 45 states and the District of Columbia. Apart from Massachusetts, the only other states that have not adopted the act are New York, New Jersey, Texas and Wyoming.
Steve Chow advises me that, because of some interest from the Joint Committee on Economic Development and Emerging Technologies and the Associated Industries of Massachusetts, there is a better than even chance that the legislation will be adopted in Massachusetts before the end of this legislative session, which ends in July 2010.
Here is a link to the proposed legislation
Update: As of April 2013, Massachusetts still has not adopted the UTSA.
by Lee Gesmer | Nov 5, 2008 | Technology
George Gilder
OK, I know that George Gilder is a very controversial guy, and that he lost a lot of money for his investors (and himself) in the late ’90s and early 2000s. So, he’s a lousy investor. But, that doesn’t detract from the fact that he can speak and write about the future of technology in ways that can make your head spin and leave you gasping for breath (and, if you’re not very careful, calling your stockbroker to increase your margin account).
His article in the November 10, 2008 issue of Forbes is typical Gilder – thought provoking, inspirational, optimistic and (I hope) right:
The real source of all growth is human ingenuity and entrepreneurship, which often thrive in the worst of times–and are always surprising.
Knowledge is about the past; entrepreneurship is about the future. In a crisis the world of expertise pulls the global economy ever deeper into the past, where accountant-economists ruminate on the labyrinthine statistics of leviathan trade gaps, tides of debt and deficits, political bailouts and rebates, regulatory clamps and controls, all propping up the past in the name of progress.
The crucial conflict in every economy, however, goes on. It is not between rich and poor, Main Street and Wall Street, or even government and the private sector. It is between the established system and the new forms of wealth rising up to displace it–all the entrenched knowledge of the past and the insurrections of futuristic enterprise and invention.
A Typical Gilder Graph
Gilder goes on to identify four critical areas of development: cloud computing, graphics processing, nanotech engineering and energy-saving construction materials.
Read the full article …..
