NY Judge Rules Bonuses Not Trade Secrets

Justice Bernard J. Fried of the Supreme Court of the State of New York, New York County issued a ruling in People v. Thain that is interesting reading. The case began with a petition filed by the NY Attorney General to compel compliance with a subpoena issued to John Thain, the former CEO of Merrill Lynch. The petition was filed under the Martin Act, General Business Law §352 et seq., as part of the AG’s investigation of $3.6 billion in 2008 bonuses paid out by Merrill. Both Merrill and Bank of America sought to intervene contending that the bonus information amounted to a trade secret. Justice Fried’s ruling directs BofA to turn over to the NY Attorney General a list of employees who received bonuses paid out by Merrill Lynch & Co. on the eve of the financially strained brokerage house’s merger with the bank.

A complete docket report for the case is freely available at the Supreme Court Records On-Line Library (“SCROLL”).

Justice Fried ruled that employees can have no reasonable expectation of privacy in the information when they themselves are free to share it. “The Martin Act vests in the Attorney General the discretion to decide whether to keep the information that he gathers in the course of his investigation secret or public. The intervenors have no cognizable privacy interest that undermines that statutory discretion. The record does not support the intervenors’ claim that the employee compensation is a trade secret.”

Justice Fried, a graduate of the Class of 1965, is a BLS Adjunct Professor of Law and teaches Trial Advocacy.

For further details of the case, see the National Law Journal article Bank of America Ordered to Give Bonus Data to N.Y. Attorney General written by Noeleen G. Walder for the New York Law Journal.