ALBANY — In a case stretching back to when Eliot Spitzer was attorney general for New York County, the New York State Court of Appeals has ruled in a 4-3 decision in favor of James Zimmerman, former chairman and chief executive of Federated Department Stores, claiming Zimmerman’s previous testimony to the attorney general is not subject to New York County laws.
This story first appeared in the December 17, 2007 issue of WWD. Subscribe Today.
Zimmerman testified as part of an antitrust investigation by the attorney general’s office into allegations that Federated and the then May Department Stores conspired to dissuade manufacturers of Waterford Crystal and Lenox china from doing business with rival retailer Bed Bath & Beyond.
The case hinged on the requirements for “particular effect” jurisdiction under Criminal Procedure Law.
As part of the investigation, the attorney general’s office questioned Zimmerman under oath at Federated’s headquarters in Cincinnati in April 2004. Alleging that Zimmerman repeatedly lied during the examination about his communications with the ceo of Waterford Wedgwood USA, Spitzer submitted evidence to a New York County grand jury, which ultimately indicted Zimmerman on one count of first-degree perjury.
The state Supreme Court dismissed the indictment, agreeing with the defense’s contention that the attorney general had failed to establish that New York County had jurisdiction to prosecute a defendant for conduct occurring outside of the county when “such conduct had, or was likely to have, a particular effect upon such county…and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect herein.”
Ruling against the attorney general’s office, Judge Carmen Beauchamp Ciparick said, “Because evidence presented to the grand jury did not establish that [Zimmerman] intended or knew that his alleged perjurious statements would have a concrete and identifiable injury to either New York County’s governmental processes or the welfare of the county’s community, ‘particular effect’ jurisdiction, or venue, is not sustainable.”
A spokesman for Federated had no comment, nor did a spokeswoman for Bed Bath & Beyond.