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Contributing Editors

© 2015 Zuckerman Spaeder LLP

The Inbox – Liar, Liar, Pants on Fire

As the United States gears up for next year’s presidential election, it’s always fun to check in with PolitiFact’s Truth-O-Meter on the days following debates or periods of political grandstanding to see who is really telling the truth and whose pants are on fire.

Since we’re all human – yes, politicians are, too – some of us admittedly engage in the occasional white lie or embellishment in the work place. While we don’t have PolitiFact to fact-check our boardroom meetings, one employee recently alleged that his CEO tried to snuff out lies using a portable lie detecting machine. Read More ›

Third Circuit Derails “Executive Fast Track” Case

A contract between an executive and an employer does not always have to be in writing.

Sometimes, employees can enforce oral promises. Agreements can also be implied based on the parties’ conduct, even when no one made a promise, either in writing or orally.

But contracts that aren’t in writing can be much harder to enforce, as the Third Circuit’s recent decision in Steudtner v. Duane Reade, Inc. shows. Read More ›

F-Squared Filing Again Illustrates Corporate Bankruptcy Perils for Executives

When an executive and a company enter into a lucrative severance package, those benefits aren’t necessarily ironclad.

As we covered in this June 2014 post, when a company declares bankruptcy, its trustee can ask the court to allow the company to avoid its executives’ severance rights.

F-Squared Investments Inc. is now seeking to do precisely that. In late October, F-Squared moved to reject its separation agreement with former CEO Howard Present, seeking authority “to avoid the financial burden” of making a $500,000 payment to him and to cease the accrual of his COBRA payments.

Mr. Present and F-Squared have had a troubled couple of years. Read More ›

The Inbox – Some Like It Not

Facebook is as public a forum as they come, yet it’s ironic how intimate some posts can be, as if the user is thinking out loud for everyone to hear.

Posts can be funny, political, or just plain weird, while others allow us to commiserate, empathize, or laugh out loud as we take that ultimate step of “liking” them. Sometimes liking another person’s thoughts can carry a high cost, especially if those thoughts disparage one’s employer.

Triple Play Sports Bar and Grille, the disparaged party in this example, took issue with the Facebook activity of two of its employees. Employee Vincent Spinella, a cook, “liked” this statement of a former employee:

“Maybe someone should do the owners of Triple Play a favor and buy it from them. They can't even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!”

Bartender Jillian Sanzone added the comment, “I owe too. Such an asshole.”

Triple Play’s management noticed the online behavior and discharged Spinella and Sanzone for violating company policy relating to prohibited internet activity. Read More ›

Boilerplate Terms in Employment Agreements May Trap the Unwary

In many respects, employees with employment agreements seem to have made it to the corporate “Promised Land.”

Through skill and hard work, these employees have distinguished themselves enough to merit individualized attention to the various types of compensation they will receive. However, these agreements may also contain land mines that spring into action when the relationship between the employee and the employer sours. Read More ›

Are You the Vice President in Charge of Going to Jail?

In my last post, I boldly predicted a possible winner—a dark horse if you will—emerging from the new Department of Justice policy announced by Deputy Attorney General Sally Yates and immortalized in the so-called Yates memo.

But this post is less optimistic. Today, I’m talking about the sure loser post-Yates: the upper-middle executive.

Or, as Ms. Yates memorably described to The New York Times, the Vice President in Charge of Going to Jail.

What does the Yates memo do to squeeze the upper-middle executive like never before? Read More ›

The Inbox – Trick-or-Treat?

In the corporate world, the treats offered to executives can be as sweet as stock incentives and cash bonuses. But the tricks can be as sour as individual liability for wrongdoing and salary disgorgement.

NJ Supreme Court Makes It Easier For Employers To Take Back Executive Salaries
Lately, we’ve been discussing the Yates Memo and the alarms it must be sounding in corporate board rooms across the country. In a similar vein, the New Jersey Supreme Court offered little comfort to spooked executives when it recently decided to broaden the remedies available to employers who seek disgorgement of former high-level employees’ salaries. Read More ›

Court Rejects American Apparel Founder’s Bid for Advancement and Indemnification

When a company sues an executive, one question is who will pay the legal bills. As we covered earlier this year, that’s been an issue in Dov Charney’s ongoing legal battle with his former employer, American Apparel. Specifically, after American Apparel sued Charney for violating their standstill agreement by getting involved in shareholder suits and commenting to the press, Charney sued American Apparel in Delaware for indemnification and advancement. He claimed that the suit was brought “by reason of the fact” that he had been CEO, and thus fell within the indemnification provisions in various corporate documents. Read More ›

With Yates Memo, the DOJ aims to prosecute more corporate executives. But will there be unintended consequences?

On September 9, 2015, Deputy Attorney General Sally Q. Yates issued a memorandum to all Department of Justice attorneys concerning “Individual Accountability for Corporate Wrongdoing.” Referred to as the “Yates Memo,” the memorandum consolidates several statements from other DOJ officials over the past year, memorializes new policy, and reiterates long-established practices. Significantly, the Yates Memo recognizes what every American has understood since the inception of our legal system: living, breathing individuals commit crimes or engage in civil misconduct, not the business entities (fictional “persons”) on behalf of which the individual acts. Read More ›

The Inbox – No Fall Guys Allowed

The Justice Department issued a memo to United States attorneys nationwide that might have Wall Street executives shifting nervously in their seats. The memo signifies a new focus as it instructs both civil and criminal prosecutors to pursue individuals, not just their companies, when conducting white collar investigations. According to The New York Times, the memo is a “tacit acknowledgement” that very few executives who played a role in the housing crisis, the financial meltdown, and other corporate scandals have been punished by the Justice Department in recent years. Typically when a company is suspected of wrongdoing, the company settles with the government after supplying the authorities with the results of its own internal investigation. This paradigm has led to corporations paying record penalties, while individuals usually escape criminal prosecution. Deputy U.S. Attorney General Sally Q. Yates authored the memo and articulated the Justice Department’s new resolve. “Corporations can only commit crimes through flesh-and-blood people. It’s only fair that the people who are responsible for committing those crimes be held accountable.” To achieve this end, U.S. attorneys are directed to focus on individuals from the beginning, and will refuse “cooperation credit” to the company if they refuse to provide names and evidence against culpable employees. And don’t think about naming a fall guy to take the blame. Ms. Yates said the Justice Department wants big names in senior positions. “We’re not going to be accepting a company’s cooperation when they just offer up the vice president in charge of going to jail.” We’ll have more on the Yates Memo and its potential implications in weeks to come. Read More ›