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- The Basics: An Introduction to Indemnification and Advancement
- The Inbox: March 7, 2014
- A Look at the Concurring and Dissenting Opinions in the Supreme Court's Sarbanes-Oxley Whistleblower Decision
- Supreme Court Allows Employees of Private Contractors to Bring Sarbanes-Oxley Whistleblower Retaliation Claims
- The Inbox, Why Does The Shortest Month Feel So Long Edition
- E-mailing Work Documents to Your Personal Account Looks Fishy, Says NY Appeals Court in New Non-Compete Opinion
- Whistleblower or wrongfully terminated employee? California Supreme Court says: whistleblower
- The Inbox, How Many More Decades Until Spring Edition
- Vanterpool v. Cuccinelli: Threading the Needle to Preserve a Free Speech Claim Against a Government Employer without Admitting to Lying Earlier About Who Spoke
- Vanterpool v. Cuccinelli (yes that Cuccinelli) Sheds Light on Political Patronage Dismissals
- After-Acquired Evidence
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- Monthly Roundup
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Blogs We Like:
The AmLaw Daily
The BLT: The Blog of LegalTimes
Connecticut Employment Law Blog
The D&O Diary
Delaware Employment Law Blog
DeNovo: A Virginia Appellate Law Blog
The Employer Handbook
Executive Pay Matters
The Federal Criminal Appeals Blog
Grand Jury Target
Screw You Guys, I’m Going Home: What You Need To Know Before You Scream “I Quit,” Get Fired, Or Decide to Sue the Bastards
Trade Secrets & Noncompete Blog
Virginia Appellate News & Analysis
WSJ Law Blog
Showing 12 posts from January 2013.
Since Lance Armstrong confessed to Oprah last week that he used performance enhancing drugs, speculation about the legal consequences came faster than Dave Stoller drafting the 18-wheeler in Breaking Away. Some of the speculation is about SCA Promotions’ demand that Armstrong return the $7.5 million that it paid him to settle a lawsuit. Armstrong brought the lawsuit after SCA (an insurer of a sponsor) refused to pay him bonuses for his Tour de France victories, citing doping allegations. Armstrong’s lawyer has said that SCA is out of luck: “When SCA decided to settle the case, it settled the entire matter forever. No backs. No re-dos. No do-overs. SCA knowingly and independently waived any right to make further claims to any of the money it paid.” Read More ›
Sometimes, It Pays To Be A Bad Sport: California Court Finds That Employee Who Deceived Her Employer About Having Signed An Arbitration Agreement Cannot Be Compelled To Arbitrate
We have written previously about litigants’ attempts to compel arbitration under a theory of “equitable estoppel.” For example, last July we discussed the move by Silicon Valley venture capital firm Kleiner Perkins to force its former partner, Ellen Pao, to arbitrate their sexual harassment dispute on the theory that, despite the absence of an agreement to arbitrate between the parties, it would be inequitable to allow Pao to avoid arbitration. Although the trial court rejected this argument, Kleiner Perkins appealed and is awaiting a decision.
Since then, the issue of equitable estoppel has cropped up again in the California courts. Just last week, in a decision that may have ramifications for Pao and Kleiner Perkins, the California Supreme Court declined to review (subscription required) a decision by a California appeals court affirming the denial of The Sports Club Company’s motion to compel arbitration against its former employee, Susan Gorlach. Read More ›
As the snow accumulates, so does the Suits by Suits news:
- Andrew Wilson of the Louisville Courier-Journal brings us the fascinating story of family strife at the American Life and Accident Insurance Company of Kentucky. Wilson reports that Nancy “Nana” Lampton, the chair and CEO of the company, has been sued by her brothers for corporate waste. They claim that Lampton is using the company for her own personal financial gain, including buying horse farms, commissioning a symphony, building a green roof, and other perks. Lucille Bluth is still not impressed.
State vs. State Smackdown: How Other Courts Are Responding To California’s Unique Law Prohibiting Covenants Not To Compete
In last week’s Inbox, we briefly discussed the dispute between rival insurers Aon and Alliant Insurance Services, Inc.; that lawsuit centers around Aon’s allegations that Alliant raided Aon’s top executives in violation of those employees' covenants not to compete contained within their employment agreements with Aon. That dispute is currently being fought via two parallel lawsuits brought in two different states, New York and California.
Ordinarily, the plaintiff is “master of his or her complaint,” meaning that even if a lawsuit could be brought in multiple jurisdictions, courts will typically defer to the forum chosen by the plaintiff. When parties have claims against each other but prefer different states, this doctrine often results in a so-called “race to the courthouse” in which the first party to file “wins” his or her chosen forum. The “first filed” complaint – the “winner,” if you will, then typically moves to either stay or dismiss the second-filed parallel jurisdiction in the “loser’s” state, and the “loser’s” court almost always complies. This may not be high-minded justice, but it is routine.
Or so we thought. Read More ›
Document discovery in litigation is a way for parties to learn about the actual facts underlying a dispute. Sometimes, however, parties intentionally destroy documents in advance of litigation (which is called “spoliation”). Spoliation can have very serious consequences, including a court-imposed “adverse inference” instruction. When a court gives such an instruction, it tells the jury that it may assume that documents deleted in advance of discovery would have been bad for the party who deleted them.
This week in suits by suits, with a tip of the hat to some of our fellow bloggers:
- Eric Meyer's excellent labor & employment law blog, The Employer Handbook, reports on Jennifer O'Brien, a New Jersey public school teacher who was fired for posting comments on Facebook about her first-graders (ages 6 and 7) such as "I'm not a teacher -- I'm a warden for future criminals!" Recently, a New Jersey appellate court upheld Ms. O'Brien's firing, ruling that her opinions were not entitled to First Amendment protection because she was not commenting on "a matter of genuine public concern." Slip Op. at 10-11.
- Another good read is the Trade Secrets & Noncompete Blog. This week they have an excellent in-depth article discussing the dispute between Chicago-based insurance brokerage Aon and a California-based competitor, Alliant Insurance Services, Inc., which allegedly raided several top executives from Aon. In addition to fascinating questions regarding the scope of covenants not to compete (which TS&N blogger David Clark describes as "epic"), the dispute also touches on forum-shopping in light of California's tough new law that essentially prohibits covenants not to compete. On January 10, 2013, a New York appellate court refused to dismiss a New York complaint in favor of a previously-filed California complaint, even though such dismissals are usually routine. (New York has no such law.) We'll be watching as these cases develop, particularly in light of the Supreme Court's recent decision in Nitro-Lift Technologies, LLC v. Howard, 568 U.S. 500 (2012), which struck down an Oklahoma statute limiting the enforceability of covenants not to compete.
- The U.S. Court of Appeals for the 4th Circuit issued its ruling in Young v. UPS, holding that neither the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., nor the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) required United Parcel Service to provide pregnant workers (such as the plaintiff, Peggy Young) with light-duty work comparable to the accommodations UPS made for other employees. For the other side of the argument, check out the amicus briefs filed by the ACLU as well as the Women's Legal Defense and Education Fund.
- Yesterday, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in the case of a TSA Air Marshall who had been dismissed for allegedly disclosing "sensitive" information on a website (under the screen name "INTHEAIRCOP"); we'll let you know when the Court issues its ruling.
- Continuing our possibly risky forays into the world of religion, the Rev. Stephen H. Cobb has sued Grace Covenant Presbyterian Church in Richmond, VA, alleging that the church fraudulently misrepresented the state of the church's financial health, staff, and parishioners in hiring him away from a New Jersey church in 2009.
- Microprocessor manufacturer American Micro Devices (AMD) sued four former employees in federal court, alleging that the ex-employees copied more than 100,000 confidential documents and trade secrets before leaving for rival chipmaker Nvidia. Yesterday, the Court issued a temporary restraining order requiring the defendants to preserve all copies of AMD materials, to refrain from disclosing any such information, and prohibiting the hire of any AMD employees.
- Guy Johnson sued his former employer, Nordstrom, alleging he was wrongfully terminated after he refused to contribute $250 to the United Way because, in his words, the United Way "supports anti-gay groups such as the Boy Scouts."
- Kelle Azzopardi sued her former employer, Armani, alleging that she was wrongfully terminated after complaining about sexual harrassment by one of Armani's senior vice presidents, Laura Giulini, to human resources.
- And, in the world of suits by fake suits: you may recall when we directed your attention to Sony's lawsuit against its former pitchman, actor Jerry Lambert (who appeared as the character "Kevin Butler," a.k.a Sony's Vice President of Add More Awesome). The parties have now settled, with Lambert agreeing to a two-year moratorium on appearances in ads that feature or mention "any other video game or computer entertainment system or video game company," followed by another two-year period in which Sony will have the right to pre-evaluate any ads in which Lambert appears that also feature video or computer games.
This week, our search for intriguing precedent has taken us all the way to the County of Lewis and Clark, Montana, and the case of Shannon Marsden.
Marsden, an employee of Blue Cross Blue Shield Montana (“BCBSMT”), had an employment agreement with a clause that required arbitration of any dispute arising under it. The agreement was for a two-year term, but provided that Marsden could be fired if the president of the company “believed that it would be in the best interest of BCBSMT.”
After BCBSMT terminated Marsden’s employment, she brought a claim under Montana’s Wrongful Discharge from Employment Act (“WDEA”), alleging that she was fired because she reported illegal rebates of insurance commissions.
However, Marsden’s claim came with a catch. Read More ›
When a dispute between executive and company reaches the point of litigation, usually the executive’s title begins with “former.” But not always. Sometimes litigation proceeds while the executive remains an officer or director of the company. How does the executive’s fiduciary duty to the company affect her litigation strategy and conduct? Read More ›
Whatever good it may – or may not – do for humankind is a subject for theological, philosophical, or old-fashioned barroom debate, not for this blog. Nor do we opine on the multiple varieties of religious faith.
We do, however, have to come across religion quite often when we’re writing about disputes between employers and employees. Religion in the workplace makes things hotter than last year itself. That heat, of course, leads to disputes that often find their way into courtrooms.
When we write about religion, we’re really writing about the tension the exercise of religious beliefs or practices can cause in hiring and in the workplace. Two recent cases showcase this tension and how religious belief in one case, and the lack of it in another, led to disputes. Taken together, and setting the merits of the individual cases aside, the cases suggest conduct that employees and employers may want to avoid if they want to avoid these sorts of problems. Read More ›
Here in Washington, we’re getting ready for the Presidential Inauguration next weekend. But the news doesn’t stop:
- One Question Too Far: An assistant VP at a bank in Texas alleges he was fired because he is gay. Marty Edwards says in his lawsuit that he was passed over for promotion for several years, and when he questioned this he was told he didn’t fit the bank’s “image;” when he then asked specifically if his sexual orientation was a factor, he asserts, the bank asked for his resignation.
- Another Showcase Showdown: the saga surrounding pregnancy and models who work on TV game show The Price Is Right continues. We’ve covered the allegations that the show’s producers illegally terminated the models here. Now, fired model Shane Stirling is appealing a trial court’s dismissal of her suit, contending the judge got it wrong by holding she needed to be pregnant at the time she was fired in order to bring a case alleging pregnancy discrimination. Stirling was fired soon after she returned to work from maternity leave; the producers say she was let go as part of a general reduction of the number of models on the show.
- From the “Is He Fired or Not” department: The former CEO of ShopSavvy has filed an interesting complaint in Texas state court, alleging that: 1) the company’s board improperly terminated him without cause; then 2) started negotiating with him to work in a different job; then 3) denied it had ever fired him; and finally 4) sent him a letter telling him he was fired. This will be a neat one to watch, but it points out that it’s generally a good idea to be clear when communicating employment decisions and negotiating with executives.
- What Brown Can’t Do For You: UPS did not need to provide a pregnant employee with reasonable accommodations to enable her to keep her job, the federal 4th Circuit Court of Appeals has held, writing: “One may characterize the UPS policy as insufficiently charitable, but a lack of charity does not amount to discriminatory animus directed at a protected class of employees.”
- Trying Again: Colleague Andrew Torrez wrote here about former Bloomberg executive Anthony Martinez’ suit against his employer, in which he alleged his termination violated the Americans with Disabilities Act. The trial court held that Martinez’s claim was covered by the forum selection clause in his employment contract with Bloomberg, which required all disputes to be litigated in England – and Martinez’s claim couldn’t be brought there. Now, Martinez has filed an appeal from that decision with the federal 2d Circuit. We’ll keep our eyes on this one, because it raises interesting issues about the scope of these often-overlooked – but frequently important – clauses that mandate where an executive and an employer have to litigate any disputes between them.
- How About A Knuckle Sandwich: While it’s not the typical employment dispute we focus on, we couldn’t let the week close without mentioning this dispute between a Subway employee and a customer, who almost came to blows when the customer asked for ketchup on his cheesesteak sandwich. Fascinating fact learned in our research – and we promise we never thought about this issue before -- but it appears Subway stores usually don’t even carry ketchup. In any event, the employee has been fired by Subway.