SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------X ALCOR LIFE EXTENSION FOUNDATION, INC. Index No. 113938/2009 Plaintiff,
-against-
LARRY JOHNSON, VANGUARD PRESS, INC. and SCOTT BALDYGA,
Defendants. ------X
ALCOR’S REPLY MEMORANDUM IN SUPPORT OF INJUNCTIVE RELIEF AGAINST DEFENDANT, LARRY JOHNSON
THE WOLFF LAW FIRM By: Clifford A. Wolff* 1401 East Broward Blvd. Victoria Park Centre, Suite 204 Ft. Lauderdale, FL 33301 Phone: (954) 565-5040 * Licensed to Practice Law in Florida, New York and Washington, D.C.
Law Offices of Vincent E. Bauer By: Vincent E. Bauer 475 Park Avenue South, 25th Floor New York, New York 10016 Phone: (212) 575-1517
Attorneys for Plaintiff, ALCOR
TABLE OF CONTENTS
Table of Authorities……………………………………………………….…………...... i
Preliminary Statement…………………………………………...... …………...... 1
Argument ………………………………………………………………………………… 3
A. Alcor Has Already Shown that Mr. Johnson is Bound by the Documents Signed and the Injunction Entered……………………………………………. 4
B. The Suggestion by Mr. Johnson that the Settlement Agreement is Not Enforceable Because it Permitted a Mediator to Finalize Disputes is Completely Incorrect………………………………….……………………… 6
C. Despite Assertions to the Contrary, an Employee Handbook is Completely Enforceable Against a Prior Employee…………………………………….…. 9
D. The Injunction Entered Against Mr. Johnson is Completely Enforceable.…. 11
E. Mr. Johnson has a Fiduciary Duty to Alcor Regardless of His Position……. 13
F. There is No Distinction in the Enforcement of Confidential Information As Opposed to Trade Secrets…………………………………………………. 16
G. The Argument that Confidential Information of Alcor Becomes “Stale” Simply Because Mr. Johnson Held Stolen Property for Six Years is Blatantly Wrong…………………………………………….. 16
H. Alcor Properly Moved for Enforcement the Arizona Default Judgment…… 18
I. Mr. Johnson Has No Basis Whatsoever to Suggest What Information is Deemed Confidential or Trade Secret of Alcor………………………… 19
J. Alcor Did Not Breach Any Settlement Agreement, and the Conduct of Mr. Johnson Belies this Suggestion……………………………………… 22
Conclusion……………………………………………………………………………...... 23
TABLE OF AUTHORITIES
PAGE
166 Mamaroneck Ave. Corp. v. 151 East Post Rd. Corp., 78 N.Y.2d 88 (1991)…………..... 6
Am. Bldg. Maint. Co. v. ACME Prop. Servs., 515 F. Supp.2d 298
(N.D.N.Y. 007)…………………………………………………………………...………… 14
American Fed. Group v. Rothenberg, 136 F.3d 897 (2d Cir. 1998)………………….…...... 15
Bell v. White, 2008 NY Slip Op 8243, 1-4. (3d Dep't. 2008)………………………………… 6
Brown v. St. Paul Travelers Co., 2009 U.S. App. LEXIS 13154,
1-6 (2d Cir. June 19, 2009)…………………………………………………………… ...... 16
Busters Cleaning Corp. v. Frati, 203 A.D.2d 409 (2d Dep't 1994)……………………….…...... 12
Cappelli Enters., Inc. v. F&J Cont. Food Corp., 16 A.D.3d 609, (2d Dep't. 2005)……….…...... 6
CBS Corp. v. Dumsday, 268 A.D.2d 350 (1st Dep't 2000)……………………………...... 14
Casavecchia v. Mizrahi, 2008 NY Slip Op. 9938, 1-2 (2d Dep't. 2008)………………….…...... 11
City School Dist. v. Schenectady Federation of Teachers,
49 A.D.2d 395 (3d Dep't 1975)…………………………………………………………...... 12-13
Cobble Hill Nursing Home, Inc. v. Henry & Warren Corp.,
74 N.Y.2d 475 (1989)……………………………………………………………………...... 6,7,8
Chu v. Ronstadt, 498 P.2d 560 (Ariz. Ct. App. 1972)………………………………………...... 8
Cronce v. Steuben Foods, Inc., 306 A.D.2d 875 ( 4th Dep't 2003)…………………………...... 10
Cypert v. Holmes, 81 Ariz. 64 (Ariz. 1956)…………………………………………………...... 8
Di Maria v. Michaels, 90 A.D.2d 676, 676-677 (4th Dep't 1982)……….…………………… ...... 7
Feldman v. Rockaway News Supply Co., 6 Misc. 2d 406
(Sup. Ct. NY Co. 956)…………………………………………………………..……….....… 7
Ferrand v. Credit Lyonnais, 2003 U.S. Dist. LEXIS 17202, 1-49
(S.D.N.Y. Sept. 30, 2003)…………………………………………………………………… ...... 10
Freedom Calls Found. v. Bukstel, 2006 U.S. Dist. LEXIS 19685,
1-94 (E.D.N.Y. Mar. 3, 2006)…………………………………………………………….…...... 15
Gabrelian v. Gabrelian, 108 A.D.2d 445 (2d Dep't 1985)……………………………….….. 11
Goldsmith v. Goldsmith, 261 A.D.2d 576 (2d Dep't 1999)……………………………… ...... 11,12
Harris v. Franziska Racker Ctrs., Inc., 340 F. Supp. 2d 225 (N.D.N.Y 2004)………………...... 9
Imaging Int'l v. Hell Graphic Sys., 2006 NY Slip Op 50526U, 1-13
(Sup. Ct., New York County 2006)………………………………………………………..… ...... 5
Jasco Tools, Inc. v. Rogers, 757 N.Y.S.2d 651 (4th Dep’t. 2003)…………………………...... 9
KLM Royal Dutch Airlines, N.V. v. DeWit, 70 A.D. 2d 867, 418 N.Y.S. 2d 63 (1st Dep't
1979)…………………………………………………………………………………………...... 16
Lobosco v. N.Y. Tel. Company/NYNEX, 96 N.Y.2d 312, 314-317 (N.Y. 2001)…………...... 10
Marshall Granger & Co., CPA's, P.C. v. Sanossian & Sardis, LLP,
15 A.D.3d 631 (2d Dep't. 2005)………………………………………………………………...... 8
Mich. Nat'l Bank-Oakland v. Am. Centennial Ins. Co. , 89 N.Y.2d 94 (1996)…………...... 13
Mycak v. Honeywell, Inc., 953 F.2d 798 (2d Cir.1992)……………………………………...... 9
North Atl. Instruments, Inc. v. Haber, 188 F.3d 38 (2d Cir. 1999)…………………………...... 15
Orange County-Poughkeepsie Ltd. Partnership v. Bonte,
2007 NY Slip Op. 1539, 1-3 (2d Dep't 2007)……………………………………………...... 11,12
Parsons & Whittemore Enters. Corp. v. Schwartz, 387 F. Supp. 2d 368
(S.D.N.Y. 2005)…………………………………………………………………………… ...... 14
People ex rel. Cauffman v. Van Buren, 136 N.Y. 252 (1892)……………………………… ...... 12
People ex rel. Stearns v. Marr, 181 N.Y. 463 (1905)………………………………………...... 13
People's Nat'l Bank v. Taylor, 17 Ariz. 215 (Ariz. 1915)……………………………………...... 5
Power Authority of New York v. Moeller, 57 A.D.2d 380 (3d Dep't 1977)……………...... 12,13
Prospect St. Ventures I, LLC v. Eclipsys Solutions Corp.,
2005 NY Slip Op 8612, 1-2 (1st Dep't 2005)………………………………………………...... 7
Prote Contr. Co. v. New York City Sch. Constr. Auth.,
248 A.D.2d 693 (2d Dep't 1998)…………………………………………………………..… ...... 5
Rhee v. Dahan, 116 Misc. 2d 548 (N.Y. App. Term 1982)………………………………...... 7-8
Ripps v. Mueller, 517 P.2d 512, 512-513 (Ariz. Ct. App. 1973)…...... 8
Rywkin v. New York Blood Ctr., 1998 U.S. Dist. LEXIS
13490, 1-19 (S.D.N.Y. Aug. 31, 1998)…………………………………………………..…...... 17
Seitz v. Industrial Commn. Of Arizona, 184 Ariz. 599 (Ariz. Ct. App. 1995)……………… ...... 5
Shamrock Technologies v. Medical Sterilization Inc., 808 F. Supp. 932 (E.D.N.Y.1992)...... 14
Sit-up Ltd. v. IAC/Interactive Corp., 2008 U.S. Dist. LEXIS
12017, 1-69 (S.D.N.Y. Feb. 20, 2008)……………………………………………………… ...... 17
Speirs v. Leffer, 246 A.D.2d 590 (2d Dep't 1998)…………………………………………...... 11
Tonkery v. Martina, 78 N.Y.2d 893 (1991)…………………………….…………………… ...... 6
Tufano v. Morris, 286 A.D.2d 531, 531-534 (3d Dep't 2001)………………………………...... 6
U.S. v. Pisani, 590 F.Supp. 1326 (S.D.N.Y. 1984)……………………………………….… ...... 14
Wallack Freight Lines, Inc. v. Next Day Express, Inc., 273 A.D.2d 462 (2d Dep't 2000)…...... 14 Wedtke Realty Corp. v. Karanas, 286 A.D. 339 (4th Dep’t. 1955)………………………… ...... 7,8
Whipple v. Brown Bros. Co., 225 N.Y. 237 (1919)……………………………………………….5
Yalkowsky v. Yalkowsky, 93 A.D.2d 834 (2d Dep't 1983)………………………………… ...... 11 I.
PRELIMINARY STATEMENT
Plaintiff Alcor Life Extension Foundation respectfully submits this reply memorandum in further support of injunctive relief against Defendant Larry Johnson. In its prior submissions,
Alcor has amply demonstrated its entitlement to injunctive relief. In a desperate attempt to stave off that relief, Johnson has offered his own affidavit regarding the information, documents and other Alcor property he stole from Alcor. In fact, the lynchpin of every factual argument put forth by Johnson, in opposition of injunctive relief is that very affidavit. As set forth below, however, that affidavit is demonstratively false in critical respects all fatal to the arguments of
Mr. Johnson. Moreover, that affidavit contains critical admissions concerning what Johnson stole. Not only has Johnson failed to competently rebut a single fact set forth by Alcor, but
Johnson has proven that he cannot be trusted whatsoever. His false affidavit, coupled with his admission that he is currently in possession of materials taken from Alcor, proves once and for all that an injunction should be entered to prevent Mr. Johnson from continuing his illegal campaign to extend his 15 minutes of fame at the expense of Alcor, its employees, affiliates, members and patients. In the process, Mr. Johnson has perpetrated a fraud on the court.
For the purpose of making this point crystal clear in this preliminary statement, consider the glaringly false submission of Mr. Johnson to this Court. The affidavit of Mr. Johnson states that he received in December 2004 the “death threat” attached to his affidavit as Exhibit A.
Johnson Affidavit (Dec. 1, 2009), ¶8 (“Attached hereto as Exhibit A is a copy of the threat I received in December 2004”). His counsel tries to suggest that Mr. Johnson “backed out” of the previously executed settlement agreement because he received this death threat “immediately” after signing the hand-written settlement agreement. However, the settlement agreement was not
1 executed in December 2004 or immediately before. It was executed during a settlement conference on August 18, 2004. See Wolff Affirmation (Dec. 8, 2009), Exhibit A. Therefore, the representation of Mr. Johnson that he received the death threat in December 2004
“immediately after” he executed he the settlement agreement is totally false. This was the only argument Mr. Johnson and his attorneys could possibly concoct to avoid what is an unambiguous and executed settlement agreement preventing Mr. Johnson from keeping or disclosing any information about Alcor. This argument fails completely.
The affidavit is also blatantly false because Mr. Johnson states at pages 338-342 of his book, “Frozen, A True Story, My Journey into Cryonics, Deception and Death”(“Frozen”) that he received the very same “death threat” in March 2004. Wolff Affirmation (Dec. 8, 2009),
Exhibit B. Mr. Johnson even reproduced the same document in his book and claimed he received this affidavit in March 2004 -- not December 2004 as he now states in his false affidavit in a desperate attempt to distort the facts, avoid culpability, and avoid an imminent injunction. One must question if Mr. Johnson or his counsel even read the book he authored before filing his false affidavit.
Lastly, the deposition of Mr. Johnson from the previous Arizona litigation confirms that
Mr. Johnson is a habitual liar. Mr. Johnson and his counsel should have read the deposition testimony he provided on April 24, 2004 before filing his false affidavit. In that deposition, Mr.
Johnson was asked if he received any death threats. Wolff Affirmation (Dec. 8, 2009), Exhibit
C. Mr. Johnson revealed in that deposition that he received exactly one alleged death threat. He claims the death threat was verbal and took place in August 2003. Id. At page 253-255 of the deposition, Mr. Johnson alleged that one person simply knocked on his door and made a verbal death threat. Id. Mr. Johnson was obviously able to recall in his April 2004 deposition an
2 alleged death threat that took place in August 2003 -- eight months prior. However, there was not a single mention in his deposition of April 24, 2004 of a written death threat which he claims in his book to have received just one month earlier in March 2004. If Mr. Johnson really received the written death threat in March 2004 -- as he states in his book, “Frozen, A True
Story” -- then he lied under oath in his April 2004 deposition when he stated that he only received one death threat, and it was a verbal threat received in August 2003. The most obvious questions remain:
1. Did Mr. Johnson lie under oath in his prior deposition?
2. Did Mr. Johnson lie in his book? and/or
3. Did Mr. Johnson lie to this Court in his recently filed affidavit?
Of course, the answer depends on the moment and motivation of Mr. Johnson. For him, truth is a relative term that is bent, twisted and severed to serve his currently-existing purpose. When
Mr. Johnson is a defendant involved in litigation in Arizona, he lies in a deposition to avoid financial culpability. When Mr. Johnson desires to sell books for a profit, he lies in the book for dramatic effect. When Mr. Johnson is trying to avoid an injunction that should be entered against him by this Court, he files a false affidavit in hope of avoiding the injunction. For the reasons set forth above and below, an injunction needs to be entered against Mr. Johnson to stop his habitually contemptuous conduct.
II.
ARGUMENT
Mr. Johnson suggests without any factual or legal support whatsoever, that Alcor failed to meet its burden to prove there exists confidential information worthy of protection, and attempts to disavow -- after being sued, of course -- three separately executed documents and a
3 court-entered judgment preventing Mr. Johnson from disclosing such information. The baseless conclusions of Mr. Johnson limp to this Court and fail to pass muster. The feeble attempt for after-the-fact justification of intentional violations of known obligation should not be tolerated.
An injunction should be entered against Mr. Johnson until he stops lying to this Court and stops parading hollow excuses for his wrongful conduct. Even then, the injunction should stand to prevent the imminent threat that Mr. Johnson will continue his inconsistent and contemptuous behavior.
Each of the failing argument of Mr. Johnson will be taken in turn. When those arguments have already been extinguished by prior briefs, there will be no need to regurgitate the opposition position. In fact, Mr. Johnson has already foreseen the imminent entry of an injunction when he pleaded with this Court for an evidentiary hearing should this Court be inclined to grant the requested injunction. Wolff Affirmation (Dec. 8, 2009), Exhibit D.
A. Alcor Has Already Shown that Mr. Johnson is Bound by the Documents Signed and the Injunction Entered.
Mr. Johnson leads off his brief by suggesting incorrectly and disingenuously that he was given carte blanche authority to do whatever he wants with Alcor property simply because he procured a letter from Jerry Lemler by fraud. Mr. Johnson describes in his book in great detail how he procured that document by fraud from Mr. Lemler. He states at Pages 227-228:
Because of my background as a paramedic, emergency medical flight director, and ambulance company clinical director, Jerry Lemler wanted me to write articles for periodicals and paramedicine magazines. He wanted to spark an interest in cryonics among paramedics and nurses…. When he first made this request, I told Jerry I‟d do it but I was concerned about asking around for information, and the fears this might arouse…. I told him I wanted a letter from him that I could show to the other Alcorians (sic), granting me his permission to gather information for the purposes of publication…. I typed up the letter real quick and brought it straight to Jerry…. After Jerry signed that letter, I got out of there and went to
4 my office next door. I just stood there, looking at his signature, all proud of myself. That letter granted me the permission of the Alcor president to gather whatever information I wanted “for the purpose of publication.” A pretty broad mandate, huh?
Wolff Affirmation (Dec. 8, 2009), Exhibit E. Even Mr. Johnson by his own admission did not believe that he was given wholesale authority by Alcor. He simply procured limited authority during his employ only to review materials for “periodicals and paramedicine magazines.”
However, in his brief, Mr. Johnson bastardizes a simple letter to improperly argue that he received total and complete authority from Alcor to steal documents in the middle of the night, steal photographs of patients, steal patient records from Alcor, and then use and publish those documents in perpetuity for personal gain. This is an absurd interpretation of a document obtained by fraud.
It is well-settled law that a contract induced by fraud is not valid and can be voided by the defrauded party. Mich. Nat'l Bank-Oakland v. Am. Centennial Ins. Co. (citing, In Re: Union
Indem.ins. Co.), 89 N.Y.2d 94, 100-110 (N.Y. 1996)( a finding of fraud in the inducement allows a party to declare that contract was void ab initio); Whipple v. Brown Bros. Co., 225 N.Y. 237,
239-261 (N.Y. 1919)(fraud in the inducement means contract is voidable); Smith v. New York
C. R. Co., 24 N.Y. 222, 223-252 (N.Y. 1862)( If the contract is induced by fraud or duress, it is, of course, void.);Prote Contr. Co. v. New York City Sch. Constr. Auth., 248 A.D.2d 693, 694-
696 (N.Y. App. Div. 2d Dep't 1998)(contract voided owing to fraud in the inducement); Imaging
Int'l v. Hell Graphic Sys., 2006 NY Slip Op 50526U, 1-13 (N.Y. Sup. Ct. 2006) (If contract induced by fraud there is no valid contract ); see also, People's Nat'l Bank v. Taylor, 17 Ariz. 215
(Ariz. 1915)(contract induced by fraud can be rescinded; the promise is void on account of the fraud practiced to obtain it.); Seitz v. Industrial Commn. Of Arizona, 184 Ariz. 599 (Ariz. Ct.
App. 1995)(if contract induced by fraud, defrauded party can rescind as void).
5 Mr. Johnson interestingly fails to even acknowledge in his book the settlement agreement he signed in August 2004, just a year later, requiring the return of all Alcor property. How convenient of Mr. Johnson to rely on a single letter which on its face does not give him any authority to steal documents and use those same documents against Alcor in perpetuity -- but disavow a binding Non-Disclosure Agreement, the binding terms and conditions of his
Employee Handbook, a signed settlement document and ignore a court-entered judgment as being “under review.” The bravado of Mr. Johnson in this regard is nothing short of sanctionable.
B. The Suggestion by Mr. Johnson that the Settlement Agreement is Not Enforceable Because it Permitted a Mediator to Finalize Disputes is Completely Incorrect.
As this Court is aware, Mr. Johnson signed his own hand to a settlement agreement which contained all material terms. One of the key terms was to permit the mediator to resolve any disputes which may have arisen after execution of the handwritten settlement agreement.
Wolff Affirmation (Dec. 8, 2009), Exhibit F. Mr. Johnson has improperly suggested that the settlement agreement is somehow unenforceable. This argument falls flat, and it is in direct conflict with well-settled law.
When a term of a contract is left to be determined, the contract will still be enforceable as long as it either contains "a methodology for determining the [term]” or ”recourse to an objective extrinsic event, condition or standard on which the [term] was made to depend.” 166
Mamaroneck Ave. Corp, 78 N.Y.2d at 92. ; see also Cobble Hill, 74 N.Y.2d at 476 (1989)(third- party health Department to determine price) Tonkery v. Martina, 78 N.Y.2d 893 (1991)(price to be determined by appraisal); Bell v. White, 2008 NY Slip Op 8243, 1-4. 3d Dep't. 2008)(price to be determine by appraisal); Cappelli Enters., Inc. v. F&J Cont. Food Corp., 16 A.D.3d 609, (2d
Dep't. 2005)(fair market rent subject to arbitration); Tufano v. Morris, 286 A.D.2d 531, 531-534
6 (3d Dep't 2001)(costs incurred by repairs will determine price). This follows the well-established maxim that “what can be made certain is certain". Di Maria v. Michaels, 90 A.D.2d 676, 676-
677 (4th Dep't 1982); Wedtke Realty Corp. v. Karanas, 286 A.D. 339 (4th Dep‟t. 1955); Feldman v. Rockaway News Supply Co., 6 Misc. 2d 406, 407-410 (N.Y. Sup. Ct. 1956).
In this case, Mr. Johnson and Alcor intended and agreed in writing to be bound by the
Settlement Agreement. Alcor and Johnson plainly agreed to the material terms of the Settlement
Agreement and also agreed that, if they could not agree on the specific language of the subsequent, typed language of the agreement, the mediator would resolve any disputes. Wolff
Affirmation (Dec. 8, 2009), Exhibit F. That clear dispute resolution mechanism provided an objective standard that rendered this clause definite and enforceable.
The authority cited by Johnson in his brief in opposition to this position in no way undercuts this well-settled law. As stated above, in Cobble Hill Nursing Home, Inc. v. Henry &
Warren Corp., 74 N.Y.2d 475 (1989), which is curiously cited by Johnson, the court found that despite the absence of a material term, i.e., the price, the contract was enforceable because there was an objective outside party that determined the price. In that case, it was the third-party New
York Health Department. Thus, the Cobble Hill decision supports the position that the
Settlement Agreement at issue in this case is absolutely enforceable.
The other cases cited by defendant are completely inapposite. In Prospect St. Ventures I,
LLC v. Eclipsys Solutions Corp., 2005 NY Slip Op 8612, 1-2 (N.Y. App. Div. 1st Dep't 2005), the letter at issue clearly stated that the agreement was conditioned on "execution of a definitive agreement satisfactory in form and substance" to both sides, and no resolution mechanism was agreed to by those parties. Similarly, in Rhee v. Dahan, 116 Misc. 2d 548, 548-550 (N.Y. App.
Term 1982), the letter at issue omitted several material terms and had no objective standard by
7 which to determine them. In Cypert v. Holmes, 81 Ariz. 64, 65-68 (Ariz. 1956), the agreement was also missing several material terms with no extrinsic objective standard to determine them.
In Chu v. Ronstadt, 498 P.2d 560 (Ariz. Ct. App. 1972), the writings also were missing material terms with no standard to determine them, and the court found no intent to enter into a contract.
And in Ripps v. Mueller, 517 P.2d 512, 512-513 (Ariz. Ct. App. 1973), the court found no intent by the parties to be bound by the writing at issue. Thus, none of those decisions relate to the issue before this Court, because here the parties agreed to be bound by the Settlement
Agreement, and expressly authorized the mediator to resolve any disputed terms.
For completeness, it should be noted that New York courts hold steadfast to the belief that a party's promise should be ignored only as “a last resort.” Cobble Hill Nursing Home, Inc. v. Henry & Warren Corp., 74 N.Y.2d 475 (1989); Marshall Granger & Co., CPA's, P.C. v.
Sanossian & Sardis, LLP, 15 A.D.3d 631 (2d Dep't. 2005); Wedtke Realty Corp. v. Karanas, 286
A.D. 339 (4th Dep‟t. 1955). When the parties demonstrate that they intended to be bound, the contract should be enforced. Marshall Granger & Co., CPA's, P.C. v. Sanossian & Sardis, LLP,
15 A.D.3d at 633 (2d Dep't. 2005)(parties intended to be bound by merger agreement, so absence of provision for allocations of assets and liabilities upon dissolution did not defeat contract). In this case, there is no indication whatsoever that the Parties did not intend to be bound. In fact,
Mr. Johnson admits in his affidavit that he intended to be bound. He simply felt compelled to leave the proceedings in total because of an alleged death threat “the day after” signing the
Settlement Agreement. Johnson Affidavit (Dec. 1, 2009), ¶8.1 Mr. Johnson never states anywhere in his affidavit or brief that he did not intend to be bound by the Settlement
1 Alcor also reminds the Court that the Settlement Agreement was executed on August 18, 2004. If Mr. Johnson truly received the death threat “the next day,” it would have been August 19, 2004, not March 2004 as stated in his book, “Frozen, a True Story.” Alternatively, if Mr. Johnson received the death threat in March 2004 as he states in his book, then he should have recalled that very serious matter in his deposition of April 24, 2004. The concocted fictions of Mr. Johnson unravel before our very eyes.
8 Agreement. He only suggests that a collateral issue arose afterward, which led him to stop participating in litigation. Significantly, Mr. Johnson never states that he did not intend to be bound by the Settlement Agreement. Thus, he is bound to the agreement and the judgment which followed. As such, this Court can and should enter an injunction against Mr. Johnson on this basis alone.
C. Despite Assertions to the Contrary, an Employee Handbook is Completely Enforceable Against a Prior Employee
As stated in Alcor‟s Supplemental Brief in Support of an Injunction, pp. 8-9, it is well- settled that provisions of an employee handbook are absolutely enforceable against a former employee, such as Mr. Johnson. See e.g. Jasco Tools, Inc. v. Rogers, 757 N.Y.S.2d 651 (4th
Dep‟t. 2003)(violation of policy in an employee handbook can be a breach of a fiduciary duty).
Brown v. St. Paul Travelers Co., 2009 U.S. App. LEXIS 13154, 1-6 (2d Cir. June 19,
2009)(arbitration provision of an employee handbook is binding); Gonzalez v. Toscorp Inc., No.
97 Civ. 8158 (LAP), 1999 U.S. Dist. LEXIS 12109 (S.D.N.Y. Aug. 5, 1999)(arbitration provision in an employee handbook is binding); North Atl. Instruments, Inc. v. Haber, 188 F.3d
38 (2d Cir. 1999) (employee was bound by confidentiality provision in employee handbook); see also Harris v. Franziska Racker Ctrs., Inc., 340 F. Supp. 2d 225 (N.D.N.Y 2004); Mycak v.
Honeywell, Inc., 953 F.2d 798 (2d Cir.1992).
Moreover, to the limited extent that Mr. Johnson can find any law for his proposition, he flagrantly misapplies New York law on the effect of disclaimer language in employee handbooks. As this Court is likely aware, under New York law, disclaimers are only relevant in ruling on employee rights regarding termination. A disclaimer merely establishes a presumption that the employee cannot automatically rely on a handbook to claim that his or her job is secured by a written contract. See Lobosco v. N.Y. Tel. Company/NYNEX, 96 N.Y.2d
9 312, 314-317 (N.Y. 2001); Cronce v. Steuben Foods, Inc., 306 A.D.2d 875, 875-876 (N.Y. App.
Div. 4th Dep't 2003). The non-contractual nature of a handbook with a disclaimer “does not render inapplicable an employer‟s policy.” Ferrand v. Credit Lyonnais, 2003 U.S. Dist. LEXIS
17202, 1-49 (S.D.N.Y. Sept. 30, 2003)(rejecting employee‟s attempt to not be bound by employer‟s bonus policy by claiming the handbook was not a contract). Of course, that is why sophisticated employers who publish employee handbooks consistently insert disclaimer language which ensures the employee does not consider the handbook a long-term contract for employment. But, the case law is crystal clear that the handbook absolutely constitutes binding and enforceable terms of both pre-employment and post-employment obligations, and it even contains a provision that permits enforcement by legal proceedings if any of the terms are breached. Wolff Affirmation (Oct. 5, 2009), Exhibit B (Employee Handbook). If the argument of Mr. Johnson were to be accepted, then every at-will employee who resigns or is terminated could retain any and all information and materials without any worries that they would ever be asked to return their materials since there are -- according to Mr. Johnson -- no obligations whatsoever that follow resignation. This Court and Alcor, however, know as an absolute fact that Mr. Johnson believed the terms of his Employee Handbook were and are enforceable because Mr. Johnson actually admits in his affidavit that he returned materials of Alcor upon his resignation. See Johnson Affidavit (Dec. 1, 2009), ¶14, Exhibit B.2
2 Mr. Johnson falsely claims in his affidavit and its Exhibit B that he paid for the laptop computer he retained (elsewise he apparently would have returned the laptop computer as well). Mr. Johnson lied to Alcor and this Court because he is well aware form his prior deposition in April 2004, that he was confronted with a credit card statement confirming that Alcor purchased the laptop computer, not Mr. Johnson. Wolff Affirmation (Dec. 8, 2009), Exhibit G. Needless to say, Mr. Johnson intentionally retained that computer not because he paid for it (which he did not), but so that he could keep Alcor property which contained private and confidential information of Alcor, its members, it patients and its employees.
10 D. The Injunction Entered Against Mr. Johnson is Completely Enforceable
Mr. Johnson disingenuously suggests this Court should let an Arizona court determine if
Mr. Johnson is in violation of a court-entered judgment. Mr. Johnson ignores the clear and unbroken law that a judgment and order must be complied with when -- at the latest -- it becomes known that the order was entered. In this case, Mr. Johnson admitted in the papers filed on his behalf in Arizona that he received notice of the Arizona judgment on September 17, 2009.
Wolff Affirmation, Exhibit H(“Defendant only became aware of the proceedings on or about
September 17, 2009, when he received a copy of the default judgment...,”)[emphasis supplied].
Once again, Mr. Johnson has been caught in his own inconsistencies. Despite prior suggestions to the contrary, Mr. Johnson admittedly knew about the Arizona judgment before the New York case was even filed against him on October 5, 2009.
When a party has notice of an order of any court, they must abide by that order or face the repercussions. Pursuant to New York Judiciary Law Section 753, this Court has the power to impose sanctions, including a fine or even imprisonment, for contempt of a court order. Jud.
Law Sect. 753; see also Gabrelian v. Gabrelian, 108 A.D.2d 445, 448 (2d Dep't 1985)(beyond the statutory grant, “a court has all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful actions effective.”) Once it is shown that a party violated a court order, to the detriment of another party in litigation, contempt has been established. Casavecchia v. Mizrahi,
2008 NY Slip Op. 9938, 1-2 (2d Dep't. 2008); Orange County-Poughkeepsie Ltd. Partnership v.
Bonte, 2007 NY Slip Op. 1539, 1-3 (2d Dep't 2007); Goldsmith v. Goldsmith, 261 A.D.2d 576
(2d Dep't 1999); Speirs v. Leffer, 246 A.D.2d 590 (2d Dep't 1998); Yalkowsky v. Yalkowsky, 93
A.D.2d 834 (2d Dep't 1983).
11 As long as an order or judgment is valid on its face, a party can be held liable for contempt, even if such order is later challenged or reversed. Busters Cleaning Corp. v. Frati, 203
A.D.2d 409 (2d Dep't 1994)(preliminary injunction reversed after defendant violated it, but defendant still liable for contempt for violating a then-standing order of the court); People ex rel.
Cauffman v. Van Buren, 136 N.Y. 252 (1892)(no matter how erroneous court‟s action was in issuing injunction, if it was then-valid, a party can be liable for contempt of court). This is especially applicable here, where Mr. Johnson knew about the prior Arizona judgment and still went on television and radio promoting his book and various websites not previously mentioned in his book. Mere disobedience to an unequivocal order is sufficient to establish contempt, if it was merely calculated or did in fact prejudice a litigant. Goldsmith v. Goldsmith, 261 A.D.2d
576 (2d Dep't. 1999)(“The mere act of disobeying the [sic] order was sufficient to sustain a finding of civil contempt, regardless of motive, where, as here, it was calculated to or actually did defeat, impair, impede, or prejudice the plaintiff's rights”); see also Orange County-
Poughkeepsie Ltd. Partnership v. Bonte, 2007 NY Slip Op. 1539, 1-3 (2d Dep't 2007)(“To satisfy the prejudice requirement, it is sufficient to allege and prove that the contemnor's actions were „calculated to . . . defeat, impair, impede or prejudice the rights or remedies of a party.‟”); see Yalkowsky, 93 A.D.2d at 836 (2d Dep't. 1983)(“the mere act of disobedience, regardless of its motive, is sufficient to sustain a finding of civil contempt if such disobedience defeats, impairs, impedes or prejudices the rights of a party”).
Importantly, a party need not establish that the other party was actually served with a copy of the order or judgment to find the violating party in contempt. It is enough to establish that the party in contempt had knowledge of the injunction. Power Authority of New York v.
Moeller, 57 A.D.2d 380 (3d Dep't 1977); City School Dist. v. Schenectady Federation of
12 Teachers, 49 A.D.2d 395 (3d Dep't 1975); People ex rel. Stearns v. Marr, 181 N.Y. 463 (1905).
Mr. Johnson acknowledged in his Arizona pleadings that he received the Arizona judgment on
September 17, 2009. Yet, he decided to sit back and do nothing except continue to hock his book on no less than 22 media outlets and violate the judgment each time he opened his mouth to discuss Alcor. Wolff Affirmation (Oct. 26, 2009), Exhibits 1-4. The argument that Mr. Johnson can intentionally ignore a patently valid judgment until after being sued by Alcor in New York is absurd and unconscionable. This argument is not only untrue, it is indeed sanctionable under
New York law that Mr. Johnson knowingly and intentionally defied a valid judgment. Power
Authority of New York, 57 A.D.2d at 382. The point, of course, is that a Party may not violate a judgment of any sort after notice. Mr. Johnson admits that he knew of the Arizona judgment as early as September 17, 2009 and knowingly violated the judgment. It was only in December
2009 -- two months after Mr. Johnson was sued in New York -- that he now tries to set aside the judgment. Even if the judgment is set aside (which is highly doubtful at best), Mr. Johnson was never permitted to blatantly violate the judgment while it is and was pending against him.
E. Mr. Johnson has a Fiduciary Duty to Alcor Regardless of His Position
Johnson argues that he owes no fiduciary duty to Alcor, merely because the Alcor Board of Directors allegedly did not approve his appointment to the position of Chief Operating
Officer. Significantly, however, Johnson does not deny that he was performing the duties of
Chief Operating Officer. Moreover, in “Frozen, a True Story,” Mr. Johnson makes much of the fact that he held that title in both his promotion of the book and in the book itself. Wolff
Affirmation (Dec. 8, 2009), Exhibit I(“Charles, I‟m performing the duties of chief operating officer already....”p. 237; “...but as he gained the trust of his eccentric coworkers and was promoted to acting COO, Larry was thrust into a nightmare world of scandalous controversy...”
13 inside book jacket cover). Ironically, the only thing “scandalous” has been the false and entirely contradictory statements of Mr. Johnson during litigation, along with his theft of Alcor materials.
Now, however, when Mr. Johnson thinks it will serve his pecuniary or legal interests, he tries to distance himself from his position as Chief Operating Officer. Of course, Mr. Johnson cites no authority whatsoever for the proposition that one who is conferred a position of trust and performs the responsibilities of an officer does not owe a fiduciary duty merely because corporate formalities concerning that appointment allegedly were not completed. This is because
Mr. Johnson was undoubtedly placed in a position of trust, and the position of trust corresponds clearly to a fiduciary duty to an employer.
In any event, Johnson owes Alcor a fiduciary duty even if he was not an officer of the company. It is settled that an employee owes a duty of good faith and loyalty to an employer in the performance of the employee's duties. Wallack Freight Lines, Inc. v. Next Day Express, Inc.,
273 A.D.2d 462 (2d Dep't 2000); CBS Corp. v. Dumsday, 268 A.D.2d 350 (1st Dep't 2000)
(employees had a duty of loyalty and trust, and their alleged use of confidential information to plan a competing company stated a cause of action for breach of that duty); Shamrock
Technologies v. Medical Sterilization Inc., 808 F. Supp. 932 (the employment relationship established the fiduciary duty owed by the employee); U.S. v. Pisani, 590 F.Supp. 1326
(S.D.N.Y. 1984) (An employee owes a fiduciary duty to his employer). . Courts have routinely found breaches of fiduciary duties by non-officer employees. Am. Bldg. Maint. Co. v. ACME
Prop. Servs., 515 F. Supp.2d 298 (N.D.N.Y. 2007)(claim of breach of fiduciary duty by non- officer employee withstood motion to dismiss); Parsons & Whittemore Enters. Corp. v.
Schwartz, 387 F. Supp. 2d 368 (S.D.N.Y. 2005) (defendant breached duties as officer, director and employee); Freedom Calls Found. v. Bukstel, 2006 U.S. Dist. LEXIS 19685, 1-94 (E.D.N.Y.
14 Mar. 3, 2006)(employees, as well as shareholders and officers have a duty of good faith and loyalty to corporations). The attempt of Mr. Johnson to disavow in litigation the position he claimed to have during promotion of his book is transparent; once again, the truth is twisted by
Mr. Johnson depending on the moment in time and motivation at issue. Here, it serves Mr.
Johnson to recant his prior statements in “Frozen, a True Story” in order to avoid an injunction.
So, Mr. Johnson will obviously do or say whatever is necessary to escape the inevitable conclusion that he betrayed his fiduciary duties to Alcor.
The two cases cited by Johnson should be carefully evaluated by this Court because they simply do not support the proposition for which they are cited. In American Fed. Group v.
Rothenberg, 136 F.3d 897 (2d Cir. 1998), the defendant-appellee did not challenge the existence of his fiduciary duty. He only contended that his actions did not rise to the level of a breach of that duty because the company had no “tangible expectancy of corporate opportunity.” That contention was rejected and the case was remanded for more fact finding on the issue of his specific actions. In North Atl. Instruments, Inc. v. Haber, 188 F.3d 38, 48 (2d Cir. 1999) the
Second Circuit found it “clear that Haber violated the duties imposed both by the Employment
Agreement and by New York's laws.” In addition, the court found that the duty not to use confidential knowledge "exists as well after the employment is terminated as during its continuance." North Atl. Instruments, Inc, 188 F.3d at 47. Therefore, the cases cited by Mr.
Johnson are not only inapposite to their stated conclusion, but they actually support the request of Alcor for an injunction.
F. There is No Distinction in the Enforcement of Confidential Information As Opposed to Trade Secrets
Mr. Johnson posits the argument that this Court is only empowered to impose injunctive relief to protect against the disclosure of Alcor “trade secrets,” as opposed to other types of
15 confidential Alcor information. See Johnson Brief in Opposition, p. 10. As Johnson admits in his affidavit, he is in possession of Alcor property. Johnson Affidavit (Dec. 1, 2009), ¶¶12-13.
Johnson has demonstrated his intent and propensity to disclose Alcor trade secrets and confidential information via his 405-page book. Moreover, the authority cited by Johnson in support of his argument is entirely inapposite to the facts. In KLM Royal Dutch Airlines, N.V. v. DeWit, 70 A.D. 2d 867, 418 N.Y.S. 2d 63 (1st Dep't 1979), the First Department limited the scope of an injunctive order to prevent only the disclosure of trade secrets by a former KLM employee. Significantly, unlike here, there was no confidentiality agreement, employee handbook, settlement agreement or judgment restricting that employee. Here, of course, Johnson is barred from disclosing confidential Alcor information not only under common law, but also pursuant to three separate agreements and a court order. Nothing limits this Court from enforcing those agreements and the judgment currently entered against Johnson. This lone argument of Mr. Johnson is properly buried among other false conclusions. It takes merely one paragraph to debunk the proposition. This Court is respectfully referred to the prior briefs of
Alcor for clear and unequivocal support that both trade secrets and confidential information are protected from disclosure.
G. The Argument that Confidential Information of Alcor Becomes “Stale” Simply Because Mr. Johnson Held Stolen Property for Six Years is Blatantly Wrong.
Mr. Johnson cites to this Court archaic case law suggesting that certain confirmation information might become “stale” over time. While this general proposition may be true in isolated circumstances, it is not true at all when applied to the confidential information and trade secrets of Alcor, its members or its patients. For instance, the patient records of Alcor are not
“stale.” They are confidential and have never been disseminated without the prior permission of the patient, their authorized representative or as required by a court of law. Wowk Affidavit
16 (Dec. 8, 2009). Moreover, photographs of various patients are equally confidential. Faces especially have never been reproduced without prior permission of the patient. The only patient photographs ever released by Alcor have been with the permissions set forth above, and only then the photographs have been presented in a dignified manner -- not the gruesome depiction and publication made for shock value and pecuniary gain by Mr. Johnson at page 182. Id. It is not the role of Mr. Johnson or his attorneys to determine what information of Alcor is confidential or a trade secret. That decision rests strictly with Alcor and its patients -- not a former employee who stole those materials in the first place.
For legal completeness, it should be noted that information can still be subject to a confidentiality agreement even if “outdated.” Sit-up Ltd. v. IAC/Interactive Corp., 2008 U.S.
Dist. LEXIS 12017, 1-69 (S.D.N.Y. Feb. 20, 2008) ( NDA regarding evaluation data does not exclude “stale” or old data – if NDA did not specifically exclude stale or old data, that data subject to NDA). The fact that information is dated does not render it unprotected. Rywkin v.
New York Blood Ctr., 1998 U.S. Dist. LEXIS 13490, 1-19 (S.D.N.Y. Aug. 31,
1998)(information is not necessarily worthless merely because it is dated; contrasted scientific information with contemporary business information that is time sensitive and may become worthless if stale).
It should go without saying that Alcor and its patients have the right to decide what information to disclose about their care and treatment. In fact, various patients execute non- disclosure agreements so their identity is never known. Wowk Affidavit (Dec. 8, 2009). It is therefore incredulous that Mr. Johnson would suggest that confidential information of Alcor and its patients somehow loses protection over time. To the contrary, Mr. Johnson even admits in his affidavit that to this day he is in possession of non-public information. Johnson Affidavit (Dec.
17 1, 2009), ¶12. The argument that Mr. Johnson could say that information remains non-public, but then also state that the information is stale is totally contradictory and fails. Therefore, non- public information remains non-public even after six years.
Alcor has already confirmed through affidavit that the information Mr. Johnson received during his employ was confidential and subject to protection. Wowk Affidavit (Nov. 13, 2009).
Mr. Johnson even admitted in his book that he was coming into possession of various “company secrets,” including the names of certain members and the method in which they have been cryopreserved. See Supplemental Brief, a p. 6. Mr. Johnson now tries to disavow those secrets which he previously promoted to sell books. This interesting change of heart seems to follow the motivation of Mr. Johnson and his then-intended purpose. When Mr. Johnson wants to sell books, he touts the revelation of Alcor secrets and his surreptitiously obtained documents at midnight. But when he attempts to defend an injunction, those company secrets somehow evaporate to suit his purpose. Hopefully, this Court can see the transparent motivations for making these false legal arguments as the motivation of Mr. Johnson changes over time.
H. Alcor Properly Moved for Enforcement of the Arizona Default Judgment
Mr. Johnson previously represented to the Court that Alcor did not have the right to domesticate in New York an Arizona judgment. See Johnson Brief in Opposition (Dec. 1, 2009), p. 4. Mr. Johnson has now abandoned that argument, effectively conceding the fact that this
Court indeed has the power to domesticate the Arizona judgment. As a fallback position,
Johnson now argues that Alcor did not move for summary judgment with respect to the Arizona judgment. Id. at pp. 13-14. That argument is also fallacious. In its initial brief dated October 5,
2009 and motion papers, Alcor plainly moved under C.P.L.R. 3213 for summary judgment domesticating the Arizona judgment. Alcor Motion for Injunction (Oct. 5, 2009); Brief in
18 Support of Injunction (Oct. 5, 2009). It did so after filing a complaint requesting such relief.
Contrary to any implication by Mr. Johnson, nothing prevents a party from moving for summary judgment on a foreign judgment after filing a complaint requesting that relief. Thus, Alcor is not procedurally barred from being granted that relief. Indeed, Alcor properly moved for the stated relief under C.P.L.R. 3213 and continues to request domestication of the foreign judgment. Mr.
Johnson has tried mightily to evade service, improperly suggest procedural roadblocks, and file a false affidavit in opposition of this relief. However, the relief is not only procedurally and substantively proper, it is necessary to prevent the contemptuous conduct of Mr. Johnson.
I. Mr. Johnson Has No Basis Whatsoever to Suggest What Information is Deemed Confidential or Trade Secret of Alcor
The widest stretch of logic comes from the incorrect presumption that Mr. Johnson can decide after six years what information is confidential and proprietary to Alcor. Mr. Johnson is no longer an officer, employee or director of Alcor. He worked at Alcor for all of seven (7) months. Mr. Johnson does not have the knowledge base or cryonics education to state what information of Alcor is deemed by Alcor to be confidential and/or a trade secret. After all, if the information of Alcor was not proprietary and confidential, why was Mr. Johnson compelled to obtain by fraud a letter giving him limited authority to review such confidential information?
And why did he thereafter sort through the computer servers and holding rooms of Alcor at midnight? This was nothing short of clandestine theft of Alcor property. Interestingly, only after Alcor made a demand for the return of its property, see Wolff Affirmation (Dec. 8, 2009),
Exhibit J(citing the theft laws of Arizona violated by Mr. Johnson), did Mr. Johnson all of a sudden decide to make those materials available for inspection. See Johnson Brief in
Opposition, p. 8. Once again, it should come as no surprise to the Court that Mr. Johnson is now willing to admit that he has Alcor property and is willing to permit inspection of those materials
19 after being cited to the various Arizona statutes which deem his conduct illegal. Hopefully, Mr.
Johnson -- who is a self-proclaimed “adrenaline junkie” in his book (pp. ix, 5) -- is coming to terms with the fact that addiction is a disease which needs to be treated. In this case, it needs to be treated with an injunction.
Recall, during his employment with Alcor, Mr. Johnson stole documents, heisted patient photographs, registered a pay-per-view website, and downloaded documents, recordings and patient records from the computers of Alcor. Putting aside that fact that all of these acts are subject to criminal prosecution in Arizona, this does not give Mr. Johnson any authority to deem the materials of Alcor subject to the public domain. One cannot steal the “secret formula of
Coca-Cola” give it to a third party and then suggest no wrongdoing because now other people know the secret formula. Similarly, Mr. Johnson cannot publish the private patient records of
Ted Williams on pages 199-202 of his book and then suggest it is no longer private because he exposed the private information in the first place. Yet, this is the circuitous and failed logic of
Mr. Johnson in his most recent brief.
Mr. Johnson even admits that he still has some information and materials which were stolen from Alcor, and he has retained them for over six years. Johnson Affidavit (Dec. 1,
2009), ¶12. The motivation is curious, but the suggestion that he is in a position to make an executive decision for Alcor that the documents are not confidential and proprietary to Alcor is ridiculous. Mr. Johnson has no basis to make any such assertion. He was only an employee for
7 months at Alcor and has been unemployed by Alcor for over six years. He has no executive authority for Alcor and no ability whatsoever to speak on behalf of Alcor. His affidavit asserting some type of authority on this issue is no different than a former car mechanic suggesting how
Ford Motor Company should run its company. Mr. Johnson is not in a position to currently
20 make any competent statements on behalf of Alcor, and his affidavit in this regard is pure conjecture.
The materials of Alcor should be delivered to Alcor. They should also be inspected -- as
Mr. Johnson invites on Page 8 of his brief -- so that Alcor and this Court can make the determination of what materials are private, confidential and/or trade secrets. After all, Mr.
Johnson admits in his affidavit that he is unaware of what would constitute a trade secret of
Alcor, Johnson Affidavit (Dec. 1, 2009), ¶10-13(“To the extent I have information in my possession which is not publically available and falls into any of these [trade secret] categories, it is more than six years old and I have no intention of disseminating it beyond what has already been disclosed in my book, “Frozen”). This proves the point Alcor has been making all along;
Mr. Johnson is in possession of non-public information. While he claims that it is more than six years old and he has no intention of distributing it, this is all the more reason to demand their return. After all, Mr. Johnson has a solid history of signing documents and violating those documents afterward. Thus, the injunction can and should be entered because Mr. Johnson himself admits to the possession of such information, an inability to determine what might be considered by Alcor a trade secret, and we already know that Mr. Johnson cannot be trusted to follow legally binding documents. The remedy is an injunction requiring the information be turned over completely and never again held in the hands of a person who uses that information for notoriety and pecuniary gain.
J. Alcor Did Not Breach Any Settlement Agreement, and the Conduct of Mr. Johnson Belies this Suggestion
Mr. Johnson speculates in his brief that Alcor posted his home address on some anonymous community blog. This is unsupported and untrue. Foremost, this is complete conjecture. The blog which Mr. Johnson presumably refers to is “Cryonet,” which is not
21 operated or owned by Alcor. Moreover, there is not a hint of competent evidence to support this speculation. In fact, a simple background check for $100.00 can produce the location of almost anyone and their complete address history. Wolff Affirmation (Dec. 8, 2009), Exhibit K (partial public background search of Mr. Johnson which can be obtained by anyone via publically available records).
As it pertains to the alleged post of his address, Mr. Johnson fails to include any such post in his affidavit, and a complete search of the terms “Larry” & “Johnson” & “address” fails to produce a single result. See
“address” or “princess”].3 Indeed, Mr. Johnson even ceased operation of his “FreeTed” website in August 2004 in conformity with the Settlement Agreement. Wolff Affirmation (Dec. 8,
2009), Exhibit L(showing termination of pay-per-view website in August 2004, shortly after
Settlement Agreement reached).
Mr. Johnson fails to recognize that Alcor indeed fulfilled the terms of the Settlement
Agreement and continued to pursue fulfillment of the Settlement Agreement. Alcor did not forego the terms of the Settlement. To the contrary, Alcor sent a check to Mr. Johnson‟s attorneys and continued pursuing contact with Mr. Johnson‟s attorneys in the hope that Mr.
Johnson would reappear. Wolff Affirmation (Dec. 8, 2009), Exhibit M (copy of correspondence into 2005 attempting to ensure Mr. Johnson cashed the check tendered pursuant to the Settlement
Agreement). The suggestion that Alcor somehow posted the address of Mr. Johnson in order to sabotage a settlement agreement it litigation for months and spent six (6) years trying to enforce is patently preposterous.
3 According to the personnel file of Mr. Johnson, he lived on a road called “Princess” but not a single search query of the several performed produced any information about an address for Mr. Johnson, and there is not a shred of evidence to suggest Alcor or anyone else ever posted his address. It is important to note that Mr. Johnson did have an attorney in Arizona who knew his address, and to whom Mr. Johnson regularly communicated profanities about Alcor. It is equally believable (or unbelievable) that his attorneys posted his address.
22
III.
CONCLUSION
Accordingly, for all of the reasons set forth above, the Court should enter an injunction against Mr. Johnson and enjoin Defendant Johnson from disclosing any further information about Alcor, or repeating any previous disclosures of confidential Alcor information; directing
Defendant Johnson to retrieve and to return to Alcor any information in his possession about
Alcor; and granting such other relief as this Court deems just, equitable and proper.
Dated: December 8, 2009 New York, New York
ss/ CLIFFORD A. WOLFF By: Clifford A. Wolff*
THE WOLFF LAW FIRM 1401 East Broward Blvd. Victoria Park Centre, Suite 204 Ft. Lauderdale, FL 33301 Phone: (954) 565-5040 * Licensed to Practice Law in Florida, New York and Washington, D.C.
Law Offices of Vincent E. Bauer By: Vincent E. Bauer 475 Park Avenue South, 25th Floor New York, New York 10016 Phone: (212) 575-1517
Attorneys for Plaintiff, ALCOR
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