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- The Inbox – December Rain Edition
- California Court SLAPPs Down Employee’s Malicious Prosecution Suit Based on Employer’s Trade Secret Case Against Him
- Upcoming Suits by Suits Whistleblower Webinar – Chance for Free Registration!
- Visions of an Improper Noncompete Provision: Texas Court Rejects LASIK Clinic’s Injunction Request Against Former Doctor
- November 2013 Monthly Roundup
- Skunks, Conquistadores, and Killer Balloons: Why Thanksgiving Is The Best Tuesday (or Possibly Thursday) of the Year
- Texas Strictly Construes Application of Mandatory Arbitration Clause Despite Superseding Agreement With No Such Clause
- Will Fiduciary Liability Insurance Cover Severance Agreement Payments If The Company Can’t Make Them?
- The Inbox, pre-Turkey Day edition
- Upcoming Suits by Suits Webinar: Whistleblower Watch
- After-Acquired Evidence
- Age Discrimination
- Arbitration and ADR
- Breach of Contract
- Civil Litigation
- Dodd-Frank Act
- Equal Pay
- Executive Compensation
- Family Medical Leave
- Fiduciary Duties
- Monthly Roundup
- Motions to Dismiss
- Noncompete Agreements
- Pregnancy Discrimination
- Preliminary Injunction
- Religious Discrimination
- Sarbanes-Oxley Act
- Severance Agreements – Change-in-Control Provisions
- Social Media
- Statutes of limitations
- Summary Judgment
- The Basics
- The Inbox
- Title VII
- Trade Secrets
- Vicarious Liability
- Wage and Hour
- Workplace Conditions (Occupational Safety and Health)
- Wrongful Termination
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
P. Andrew Torrez, named one of Maryland's star lawyers by Benchmark, is a partner in Zuckerman Spaeder’s Baltimore office. He represents both plaintiffs and defendants in complex commercial litigation matters at trial and on appeal.
Showing 70 posts by P. Andrew Torrez.
Here at Suits by Suits, we are thankful that the news about executive-employer disputes keeps flowing like gravy. This past month, we focused a lot of attention on non-compete agreements, many of which met the same fate as an unpardoned turkey. On a day as cold as chilled cranberry sauce, we sent a live correspondent to cover the oral argument in Lawson v. FMR LLC, in which the Supreme Court will decide whether employees of privately-held contractors of public companies have viable Sarbanes-Oxley claims. Finally, as per our holiday tradition, we recapped the history of Thanksgiving, in a post as entertaining as the most memorable Cowboys loss.
- Skunks, Conquistadores, and Killer Balloons: Why Thanksgiving Is the Best Tuesday (or Possibly Thursday) of the Year
November 27, 2013 | P. Andrew Torrez
- Texas Strictly Construes Application of Mandatory Arbitration Clause Despite Superseding Agreement with No Such Clause
November 25, 2013 | P. Andrew Torrez
- Will Fiduciary Liability Insurance Cover Severance Agreement Payments If The Company Can’t Make Them?
November 22, 2013 | William A. Schreiner, Jr.
- Upcoming Suits by Suits Webinar: Whistleblower Watch
November 21, 2013 | Jason M. Knott
- It Was The Added "0" That Did It -- Among Other Things
November 19, 2013 | William A. Schreiner, Jr.
- I Can't Quit You! - Why Quitting a Company May Not Mean Quitting Fiduciary Duties in Virginia
November 14, 2013 | Ellen D. Marcus
- Argument Recap: Five Takeaways from Lawson v. FMR LLC
November 13, 2013 | Jason M. Knott
- What I Don't Know About Your Non-Compete Can't Hurt Me, Right?
November 11, 2013 | Ellen D. Marcus
- Argument Preview: What to Look For in Lawson v. FMR LLC
November 7, 2013 | Jason M. Knott
- “Man Bites Dog” in the Fourth Circuit: Court Reverses Arbitrator’s Award and Enforces Release
November 6, 2013 | Jason M. Knott
- The Basics: Dodd-Frank vs. Sarbanes-Oxley Whistleblower Law
November 5, 2013 | Jason M. Knott
If you are interested in more information about legal issues involving executives and their employers, on December 10, 2013, Zuckerman Spaeder LLP partners and Suits by Suits contributing editors Ellen D. Marcus and Jason M. Knott will present a webinar titled “Whistleblower Watch: Big Issues in the Latest Whistleblower Cases Under Dodd-Frank, Sarbanes-Oxley, and the Internal Revenue Code.” In the session, Ms. Marcus and Mr. Knott will discuss the basics of these whistleblower and anti-retaliation provisions and address new developments in the law, including the Sarbanes-Oxley case currently pending before the U.S. Supreme Court. To register, click here.
Skunks, Conquistadores, and Killer Balloons: Why Thanksgiving Is The Best Tuesday (or Possibly Thursday) of the Year
We here at Suits by Suits have a bit of a holiday tradition of our own: examining the myths that surround our holidays in order to try and tell as close to the “real story” that we can find. Sure, it’s a departure from our usual focus on high-level disputes between employers and executives –- okay; it’s almost entirely unrelated -– but hopefully you’ve enjoyed our prior forays into cultural anthropology, including such classics as “How We Got Memorial Day,” two stories on the real meaning of Christmas (part one and part two), and a general expose of how we wound up with all those holidays in the first place.
So fire up the turkey fryer: it’s time we took on Thanksgiving.
When Was The First Thanksgiving?
As usual, our first stop on any tour through history is good ol’ Wikipedia, which tells us that the first Thanksgiving was celebrated by the Pilgrims near Plymouth Rock in Massachusetts in 1621. This is what we might call the traditional Thanksgiving story, which involves the Pilgrims sitting down after the first harvest with members of the Wampanoag tribe -- including the legendary translator Squanto -- to share a feast. The only problem with this story is that the contemporary evidence for it is limited to a brief mention in the (largely self-serving) “History of Plymouth Plantation” by William Bradford, and a letter from Edward Winslow. And, as it turns out, even the word “thanksgiving” wasn’t associated with the 1621 feast at all, but was first used by the Pilgrims at Plymouth Plantation in connection with a festival held two years later.
But did you know that there are three separate claims from the Sixteenth Century to be the “First Thanksgiving?” The first allegedly occurred eighty years before Squanto sat down with the Pilgrims. According to the Texas Society of Daughters of the American Colonists, the Spanish conquistador Francisco Vazquez de Coronado celebrated the first Thanksgiving in Palo Duro Canyon, Texas, in May of 1541, and was presided over by a Catholic priest. (Some now claim that this mass was a celebration of the Catholic Feast of the Ascenscion, and not a Thanksgiving.) Ascension or not, the Society of Daughters managed to erect a plaque that reads “Feast of the First Thanksgiving – 1541” in Palo Duro Canyon in 1959; that marker is still there to this day.
As a Catholic mass, the Palo Duro Canyon “Thanksgiving” lacks what many would consider to be an essential element of “Thanksgiving”: the coming together of two diverse people groups. Indeed, as Rick Shenkman notes, “[I]f Thanksgiving had been about religion, the Pilgrims never would have invited the Indians to join them. Besides,the Pilgrims would never have tolerated festivities at a true religious event. Indeed, what we think of as Thanksgiving was really a harvest festival.” So maybe that one should be out.
The second claim comes from Saint Augustine, Florida, and ostensibly dates to 1565, after an expedition by conquistador Pedro Menendez de Avile. Like our traditional story – but unlike the feast possibly held in Texas – Avile’s thanksgiving is also said to have involved sharing the feast with the local Native Americans; in this case, members of the Timucua tribe indigenous to northern Florida.
Finally, the third 16th century claim stems from San Elizario, Texas, a small town outside of El Paso, whose residents claim that the first Thanksgiving celebration took place in 1598 upon the arrival of Spanish conquistador Juan de Onate.
Myths About the Thanksgiving Meal
Of course, none of these festivals – to the extent they really happened – would look much like our modern Thanksgiving meal; as National Geographic points out, potatoes and sweet potatoes were not a regular part of the colonists’ diet in the 1600s, and sugar and other ingredients necessary to make cranberry sauce and pies were prohibitively expensive until at least the Nineteenth Century. For an authentic meal, National Geographic recommends Wampanoag delicacies such as skunk, blood pudding, and boiled bread. Yum.
Chances are we won’t convince you to bake up a tasty skunk this Thanksgiving. But the chances are good that, after eating a big plate full of turkey and settling in front of the TV to watch some football, you might find yourself drifting off to sleep rather early in the evening. Everyone knows that’s the tryptophan in turkey making you drowsy, right?
Turns out that’s yet another myth. As TIFO points out, medically speaking, tryptophan generally needs to be taken on an empty stomach, without the presence of other amino acids or protein, in order to have any effect. Even if you haven’t loaded up your plate with stuffing, mashed potatoes, sweet potato casserole, corn, brussels sprouts, hot buttered rolls, and cranberry sauce, you’ll still be getting a ton of protein and other amino acids from that turkey drumstick itself.
No, the reason we get drowsy is much more prosaic: we’ve just likely consumed several thousand calories of food – plus, if you’re like many of us, several glasses of wine – within a short period of time. Your body shifts extra resources towards the digestive system and away from your CNS and other organs in order to process this massive meal, and that makes you feel sleepy. Oh, and alcohol is a depressant, but you probably knew that already.
Nor did the Wampanoag teach the Pilgrims how to make popcorn at that first Thanksgiving. The local variety of corn available was flint corn – what our parents and grandparents called “Indian Corn,” the colorful, dent-free corn you see used in ornamental cornucopias and other decorations to this day. Unfortunately, flint corn is low in starch, and you need a dense, starchy interior to put that distinctive “pop” in popcorn. Flint corn, on the other hand, was typically used in hominy and boiled mush. Somehow, we’re not surprised that boiled mush failed to take off as a movie theater snack.
Transitioning to Today
If much of what we know about the earliest Thanksgiving specials differs so greatly from much of what we celebrate today, we at least know where to pin the blame: Sarah Josepha Buell Hale, an influential 19th century writer who penned “Mary Had a Little Lamb” and agitated tirelessly for nearly 20 years to get Thanskgiving recognized as a national holiday. (By the 1840s, Thanksgiving was a largely regional holiday celebrated in New England but not in the South.) In addition to writing to five separate U.S. Presidents, Hale penned regular editorials for Godey’s Lady’s Book accompanied by recipes for turkey, stuffing, pumpkin pie, and other foods that we now consider “traditional” Thanksgiving foods, even though those traditions originated with Hale, not the Pilgrims or the Wampanoag.
After two decades, Hale eventually convinced President Abraham Lincoln – who, it might be pointed out, had an awful lot on his mind at the time – to recognize Thanksgiving as a national holiday in 1863. Originally set as the fourth Tuesday in November, Thanksgiving was briefly moved to the second-to-last Thursday in November by President Franklin Delano Roosevelt in 1939. Why? Believe it or not, the same reason as today: Black Friday. Yes, FDR wanted an earlier Thanksgiving to lengthen the holiday shopping season. (Coming out of the Great Depression probably had something to do with this!)
The problem – much to the consternation of the Federalist Society, we’re sure – was that this led to varying practices among the states. Some continued to celebrate Thanksgiving on the last Thursday in November, while others moved to the second-to-last as per Roosevelt’s decree. In 1941, Texas – everything’s bigger there, we hear – decided to do both, celebrating two Thanksgivings.
Now Congress may not be able to respond to each and every national emergency, but by golly, when a state is celebrating a gluttonous holiday on two separate days, Washington sprung into action, declaring as a compromise that Thanksgiving would be the fourth Thursday in November starting in 1942 – meaning that sometimes it would fall on the last Thursday, and sometimes the second-to-last. (And, apparently, that once every century and a half, it would create Thanksgivukkah, derided by some as a national nightmare, while celebrated by others.)
And it’s been that way ever since.
The Macy’s Day parade in New York began in 1924, and, unsurprisingly, began for precisely the same reason as FDR’s executive order: as a way to kick off the holiday shopping season. Of course, those first few years were spent working out some kinks; balloons didn’t get helium until 1927, for example, but they’ve flown every year since then with the exception of 1971 when they were grounded for adverse weather conditions. In 1997, a woman spent 24 days in a coma after being severely injured by a six-story “Cat In the Hat” balloon blown off the parade by 40 mph wind gusts. Today, the balloons will be grounded if winds exceed 34 mph.
NBC broadcast the first Thanksgiving Day football game in 1934, featuring the Detroit Lions hosting the Chicago Bears; nearly every year since, the Lions have played on Thanksgiving Day. (This year, we get three NFL matchups offering roughly 11 hours of football: Packers-Lions, Raiders-Cowboys, and the Suits By Suits matchup of the week: Steelers at Ravens.)
Oh, and what about the President’s ceremonial pardon of a turkey? That tradition goes all the way back… to 1989 under President George H.W. Bush. Who says Sarah Hale is the only one allowed to make up traditions?
Pass that roast skunk; I’ll have a drumstick!
Texas Strictly Construes Application of Mandatory Arbitration Clause Despite Superseding Agreement With No Such Clause
We’ve written frequently about the long-standing practice in the corporate world of including mandatory arbitration clauses in employment contracts. Specifically, we’ve pointed out that although the practice may make sense for the employer when it comes to deterring potentially costly lawsuits brought by employees, those equities can shift when it concerns upper-level executives who generally have more means and wherewithal to fight a prolonged legal battle, be it in court or in front of an arbitrator.
In those cases – what we here at Suits by Suits consider our bread-and-butter cases – the employer may want to think twice about binding arbitration due principally to the risks of being stuck with an almost entirely unappealable adverse ruling; we’ve previously discussed how this has turned out poorly for employers such as Merrill Lynch and BDO.
Today, we continue to beat the drums of caution for both sides in our examination of a recent Texas appellate decision that makes it clear that many courts are looking for any way to kick a case out of the legal system in favor of arbitration. Read More ›
October was a busy month for us here at Suits By Suits – and, we imagine, for many of you as well. The baseball playoffs shut out our hometown Orioles and Nationals (although our sister office in Tampa got to cheer on, however briefly, the playoff-bound Rays), and the gods of the pigskin haven’t been much kinder to the Ravens or Redskins so far. But despite the fickle fortunes of professional sports, we still managed to crank out some pretty interesting content this month; if you missed any of our prior articles, here’s a summary and link to each one:
- Unpacking the Business Arguments For and Against Noncompetes
October 30, 2013 | P. Andrew Torrez
- Federal Court Rules That Dodd-Frank Whistleblower Protection doesn’t Apply Internationally
October 24, 2013 | Jason M. Knott
- I’ve got a secret. Or do I?
October 22, 2013 | William A. Schreiner, Jr.
- Federal Judge Upholds Jurisdiction Based on Employer’s Computer Fraud and Abuse Act (CFAA) Claim against Former Employee
October 16, 2013 | Jason M. Knott
- One Danger of Talking to the Press about a Pending Lawsuit Is Being Sued for Defamation (See Jacobs v. Las Vegas Sands)
October 14, 2013 | Ellen D. Marcus
- Court of Appeals and Federal Reserve Put the Kibosh on Troubled Bank’s Settlement with Exec
October 10, 2013 | Jason M. Knott
- Indiana Appellate Court Sends Employer to Trial for Enforcing Non-Compete
October 8, 2013 | Jason M. Knott
- Sleeping With the Enemy Executive
October 7, 2013 | John J. Connolly
- Is An Arbitration Agreement Valid If The Designated Arbitrator Is Unavailable?
October 2, 2013 | William A. Schreiner, Jr.
Although Halloween has come and gone, you can continue to celebrate Dia De Los Muertos with us here at Suits By Suits; we recommend sipping a nice anejo tequila while catching up on this week's news. (Hey, it beats legions of candy-seekers dressed as "Angry Birds," no?)
- The biggest news of the week comes from yesterday's news that the Senate Judiciary Committee approved a bill to protect antitrust whistleblowers; the full text of the proposed bill can be found here. We'll analyze the provisions of the proposed legislation in the coming days, but in the meanwhile, you might brush up by reading our past library of posts on whistleblowers.
- Scott Norris, former executive vice president for San Diego County Credit Union, has filed a wrongful termination claim against his former employer, alleging that he was retaliatorily discharged after blowing the whistle on the bank's alleged failure to correct thousands of errors in the processing of loan payments. SDCCU denied the allegations without further comment. We'll be watching, of course.
- Way back in March of this year, our colleague Bill Schreiner wrote two excellent articles (part one, part two) on the unfortunate situation involving Jerry Sandusky and Penn State. This week, we learned that Penn State has agreed to pay nearly $60 million to the 26 known victims of Sandusky's sexual abuse.
- Fallout continues in the forthcoming merger between #2-ranked office-supply company Office Depot with #3-ranked OfficeMax; this week, we learned that neither company's incumbent CEOs -- Office Depot's Neil Austrian and OfficeMax's Ravi Saligram -- intend to submit their names for consideration to helm the combined company. Instead, both will collect lucrative (and already-controversial) golden parachutes; $15 to $16 million for Austrian and $13.5 million for Saligram, according to the Orlando Sun-Sentinel.
- Presumably in light of the ongoing controversy over such packages, SunPower's CEO, Thomas H. Werner, has requested that the company amend his Employment Agreement to reduce his severance benefit package in the event of termination. Under the terms of the amended agreement, Werner would receive two years' base salary (reduced from three), two times his annual bonus (reduced from three) and two years' worth of subsidized health care benefits (also reduced from three). Might this be the wave of the future as executives try to tamp down on potential outrage over golden parachutes? Only time will tell.
Regular readers here at Suits by Suits know that we’ve continued to monitor the status of proposed changes to the law governing the enforceability of covenants not to compete in Massachusetts, from the state legislature’s proposal to restrict such covenants to six months in length to more recent pronouncements by Gov. Deval Patrick (D) that his administration would like to ban the enforcement of all such clauses, moving Massachusetts into the same space currently occupied by the state of California.
One question we get here pretty frequently regards the political and business implications of states that are moving in this direction. Certainly, it is generally regarded as an article of faith that enforcing non-competes is pro-business, and states that are considering restricting or outright banning such clauses are prioritizing fairness concerns above economic growth. (This intuition is undoubtedly reinforced by the fact that the most high-profile discussions are coming from one of the most liberal states in the union, Massachusetts.) But is this intuition correct? Many would argue that the case for and against non-competes is considerably more complex; read on. Read More ›
In honor of both our Tampa- and Baltimore-based colleagues (including yours truly), this week's Suits by Suits Inbox is rooting for the Tampa Bay Rays to defeat the Boston Red Sox in the American League Division Series; game 1 starts tonight. Alternatively, if you're not into baseball, perhaps you'd prefer a tasty beverage? Here's a link to 31 days of Disney-themed craft cocktails, one for each day of October. With that in mind -- or perhaps in hand, depending on when you read this -- on with our weekly recap: Read More ›
T.S. Eliot famously declared that “April is the cruelest month,” which got us thinking: what exactly is September, then? Typing “September is the” into Google gives us a fairly interesting grab-bag of responses. Wikipedia is, as you might expect, pretty literal (“September is the ninth month of the year.”) Thanks, Wikipedia! ESPN tells us that September is “the best month of the baseball season,” but something called “Investopedia” claims that September is the worst month for investing, and a bunch of other sites seem to agree. September is also apparently “National Preparedness Month” at the NOAA (link not available due to government shutdown); national “Library Card Sign-up Month”; “National Senior Center Month”; and even national Abortion Access Month.
Whew! With all of that taking place, you may have missed some of the stories we covered throughout the month of September, including the following:
- Fifth Circuit Sends Dispute Over Free Parking Back to Trial Court
September 24, 2013 | Jason M. Knott
- More on Larry Conners and Noncompetes in Missouri
September 21, 2013 | P. Andrew Torrez
- Virginia Supreme Court Last Week: Courts Should Not Rule on Non-Compete's Enforceability in a Factual Vacuum
September 17, 2013 | Ellen D. Marcus
- Trade Secrets - Even if You Didn't Use or Disclose Them You Can Be Liable
September 17, 2013 | Ellen D. Marcus
- The Wall Street Journal: Noncompetes are "Innovation-Killing"
September 16, 2013 | P. Andrew Torrez
- Massachusetts Continues To Move Towards California On Noncompetes
September 12, 2013 | P. Andrew Torrez
- Cough Syrup Manufacturer Suffers Bad-Tasting Appellate Defeat
September 10, 2013 | Jason M. Knott
- If You Can't Be Fired For Being Old, Can You Be Fired For Being Old AND Ugly? Why This Is a Harder Question Than You Might Think
September 5, 2013 | P. Andrew Torrez
- How You Came To Have Today Off
September 2, 2013 | William A. Schreiner, Jr.
Last month, we took a look at one aspect of the lawsuit brought by former news anchor Larry Conners, who had been terminated by KMOV-TV 4 in St. Louis, Missouri after posting various political comments to his Facebook page. Specifically, we discussed the implications of the Missouri court’s denial of Conners’s motion for a Temporary Restraining Order (TRO) seeking to invalidate Conners’s non-compete clause in order to permit him to seek another TV job in St. Louis. To refresh your memory: we concluded that the court’s refusal to grant a TRO did not necessarily indicate that the clause would ultimately be held enforceable – given the heavy burden a litigant must meet in order to get a TRO – but several aspects of Missouri law seemed to weigh in favor of the clause’s enforceability. (Our full reasoning is set forth here.) We also told you that Conners would be headed back to court to argue his case on the merits. Read More ›
We saw this over the weekend and thought you might like to know: more on last week’s revelation that Massachusetts Gov. Deval Patrick (D) favors the “California policy” of making employee covenants not to compete generally unenforceable under state law.
As we told you last week, the linchpin of the administration’s argument is that while noncompete clauses may be perceived as generally pro-business, in the technology sector – a huge market in California, obviously, but also a significant industry in Massachusetts – many believe that the enforcement of noncompetes may hinder employee mobility necessary for such startups to thrive. In this particular area, then, what's good for employees may also be good for employers.
This weekend, Gov. Patrick got an assist from a rather unlikely source – The Wall Street Journal. Greg Gretch, managing director of Sigma West, a venture capital firm targeting technology startups, argues that noncompete agreements are “innovation-killing” and credits California’s decision not to enforce noncompetes for turning San Francisco into a “hot-bed of new startup activity.” Mr. Gretch’s piece can be read in full here; it's worth checking out.