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- 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
- The Inbox - Valentine's Day Edition
- Twice as Nice for Employers: Federal Courts of Appeals Affirm Sarbanes-Oxley, Kansas Whistleblower Dismissals
- 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
- First Amendment
- Government Employers and Employees
- 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
Ellen D. Marcus is a partner in Zuckerman Spaeder’s Washington, DC office, who represents clients in civil litigation throughout the country. Her clients have included CEOs, CFOs, publicly-traded companies, closely-held family businesses, consumers, migrant workers, lawyers and law firms.
Showing 77 posts by Ellen D. Marcus.
Vanterpool v. Cuccinelli: Threading the Needle to Preserve a Free Speech Claim Against a Government Employer without Admitting to Lying Earlier About Who Spoke
Yesterday, we reviewed a recent decision by a federal court in Richmond in the case of Vanterpool v. Cuccinelli (yes that one), and when firing a government employee for speech or political affiliation may be okay under the First Amendment. The answer is that it may be okay if the employee is in a policymaking position. The court’s decision spells out why and what it means to have such a position. The case is also a helpful reminder that staking out one position in litigation may undermine another.
In her first complaint, Vanterpool apparently did not want to say that she posted the comment criticizing Cuccinelli on the Washington Post because she had denied doing so when she was confronted about the comment by one of Cuccinelli’s deputies, Charles E. James, Jr., who was also a defendant in the case. James later questioned Vanterpool’s credibility and asked her to resign or be terminated. If Vanterpool alleged in the complaint that she personally posted the comment, then that could have bolstered a defense by Cuccinelli and James that she wasn’t fired for speaking freely but for being dishonest. Read More ›
Earlier this month, a federal court in Richmond dismissed the lawsuit of a lawyer named Samantha Vanterpool who worked in the Virginia Office of Attorney General when Republican Ken Cuccinelli was Virginia’s AG and was running to be governor. (Democrat Terry McAuliffe won last November in a race that made national headlines.) Vanterpool claimed that she was fired on the basis of her political affiliation in violation of the First Amendment.
Vanterpool is a Republican but apparently not a Cuccinelli fan. She was fired after she allegedly posted a comment to a May 2012 Washington Post story about Bill Bolling, who was then challenging Cuccinelli for the Republican nomination. You can still see the comment (from “bzbzsammy”), which accuses “Cuccinelli of promoting Cuccinelli” while “Bolling is helping the GOP,” and of “NEVER [being] in the AG’s office and solely us[ing] the position for self promotion.” Read More ›
- IBM CEO Virginia “Ginni” Rometty said on Tuesday that she is passing up her annual bonus after the company missed its quarterly earnings expectations and its annual revenues declined in 2013.
- Meanwhile, former Yahoo COO Henrique de Castro’s severance, with an estimated value of $60 million, is being called one of the largest golden parachutes ever for a fired executive. See our post earlier this week explaining how employment agreements can lead to severance payments even to executives who were asked to leave for poor performance.
- We don’t know whether de Castro got to take his personal data with him. The Wall Street Journal reported this week that 21 percent of companies remotely wipe clean data from phones and tablets used by employees for work activities when an employee quits or is fired, even where the employee owns the device and even where the employee stored personal data on the device.
- The U.S. Court of Appeals for the Third Circuit (see Erica Plaso v. IJKG opinion) affirmed the judgment against a consultant who sued the hospital where she had worked for a hostile working environment, claiming that she was sexually harassed on the job. The Third Circuit agreed with the trial court that the hospital wasn’t the consultant’s employer for purposes of Title VII, and that her employer was the consulting company that contracted with the hospital to provide services.
Conditioning Severance Payments on Releasing the Company - Another Lesson from Family Dollar Stores' Recent Firing of Its COO
You may have been left with the impression from our post on Tuesday that Family Dollar Stores is getting a raw deal because the company has to pay former COO Mike Bloom $4.8 million after letting him go for what it saw as poor performance. As we explained, this may be counterintuitive, but it’s consistent with the severance provisions of Bloom’s employment agreement. Besides complying with its contractual obligations, however, the company is getting something in return for the severance: a release from Bloom.
Bloom’s employment agreement, which is typical of executive employment agreements, provides that, upon his termination, the Company’s obligation to pay him severance is conditioned on Bloom "deliver[ing] to the Company a fully executed release agreement . . . which shall fully and irrevocably release and discharge the Company . . . from any and all claims . . . ."
This provision of Bloom’s employment agreement illustrates a best practice for companies when they are contemplating severance provisions in employment agreements at the time of hiring, or even standalone severance agreements that are negotiated at the end of employment: don’t agree to pay severance without getting a release from the executive in return. That way, while it may be painful to write that severance check, at least the company can know that it should not have any future trouble from the executive, the break is clean and the company and executive can move on to whatever’s next. For executives’ part, to the extent that they have the bargaining leverage, they should also insist that any release be mutual – that is, that, just as the executive releases the company from any claims, the company releases the executive from any claims. That way, the executive will also be able to move on without having to look back.
Why the COOs of Yahoo and Family Dollar Stores Have Been Fired for Poor Performance But Will Get Millions in Severance - Further Adventures in "With" and "Without Cause" Terminations under Executive Employment Agreements
Last week, Yahoo’s Marissa Mayer fired COO Henrique de Castro, reportedly because she was not satisfied with his job performance. By some estimates, de Castro will receive severance exceeding $60 million after only 15 months on the job. Also last week, Family Dollar Stores let go COO Mike Bloom because the company was not happy with his performance, and apparently was not moved by Bloom’s Undercover Boss gambit. Bloom is set to receive $4.8 million in severance after slightly more than two years on the job.
What gives? How is it that these former executives are receiving large severance payments after they were asked to leave for poor performance on the job? The definition of "cause" in their severance agreements is what gives – a topic we explored recently here at Suits by Suits in connection with the dispute over former iGate CEO Phaneesh Murthy’s termination. In the iGate case, the company contends that it terminated Murthy for cause and thus owes him no severance. Murthy’s employment agreement provides that he does not get severance in the event of a "with cause" termination, and that "cause" includes violating company policy. The company contends that Murthy’s failure to report his romantic relationship with an employee to the Board was "cause" for his termination because it violated company policy.
In the Yahoo and Family Dollar Store cases, assuming that de Castro and Bloom were let got for poor performance, unless poor performance is "cause" under their employment agreements, they will reap the severance benefits provided for in their agreements for "without cause" terminations. Read More ›
Happy 2014! We'll be resuming our usual schedule of bringing you cutting-edge insights into legal disputes between high-level employees and their companies next week. Meanwhiile, for those of you who found yourselves watching the holiday movie classics for the umpteenth time last week (and loving it), you may appreciate revisiting these Suits by Suits oldies-but-goodies:
From all of us here at Suits by Suits, we wish you and yours a very happy holiday season. To keep you entertained over the next few weeks, we'll be featuring a number of our holiday and all-time favorite posts.
Kicking things off today, we revisit a popular series from this time last year, where we told you about the origins of Christmas as a holiday. If you've ever been curious as to why celebrants drink spiced eggnog, decorate evergreen trees, or hang mistletoe, be sure to check out Part 1 and Part 2 of "The Origins of Christmas." And if you want to know how that day and other social traditions turned into legal holidays, check out our post "Exactly How Many Holidays Do We Have, Anyway?"
If you feel we've missed anything, please drop us a line. Happy holidays!
- A federal court is allowing to go forward a claim against Continental Airlines brought under New Jersey law by a gay flight attendant for discrimination on the basis of sexual orientation. The flight attendant claims that the airlines forced him to cut his mohawk and created a hostile work environment.
- In other news from the not-always-so-friendly-skies, following the airlines merger on Monday, the new American Airlines Group disclosed in an SEC filing that – if certain post-merger milestones are met – CEO Doug Parker will receive a retention bonus that includes shares worth about $15 million. The new airline also described the latest version of a severance package for Tom Horton, the former CEO of the pre-merger airline, whose earlier version of severance package was considered and then rejected by a bankruptcy court – a saga that we followed closely here at Suits by Suits.
- In other New Jersey news, the disability discrimination claim of a dealer who once worked at Trump Plaza Hotel & Casino in Atlantic City has been dismissed after a court found that the dealer was barred from claiming in the case that she was qualified to work, which was at odds with her sworn statement to the Social Security Administration that she could not use her right hand that she made when she sought (and eventually received) disability benefits.
- In news having nothing to do with airlines or New Jersey, the dean of engineering of Sacramento State recently was put on leave by the school after he was accused in a federal lawsuit brought by a career counselor at the school of creating a hostile work environment – allegedly as retaliation for her investigating claims of sexual harassment by an engineering professor.
The CEO of iGate Had an Affair with An Employee, Was Fired and Is Now Suing the Company for Severance - Putting at Issue the Classic Question of "Cause" and Reminding Us of a Few Best Practices
In May, iGate sacked its CEO Phaneesh Murthy, claiming that the Board decided to do so after its outside legal counsel found that Mr. Murthy’s failure to report his relationship with a subordinate employee violated iGate’s policy. Outside counsel made that finding as part of their investigation of the relationship and the employee’s claim of sexual harassment. (For spicier accounts of the office affair check out the news stories from the time – like this one.) Last week, Mr. Murthy sued iGate in California state court claiming that his termination was not with cause and that he is therefore entitled under his employment agreement and company stock plans to compensation and benefits that the company has refused to pay. Read More ›
On December 10, 2013, Suits by Suits contributing editors Ellen D. Marcus and Jason M. Knott will present a live webinar titled “Whistleblower Watch: Big Issues in the Latest Whistleblower Cases Under Dodd-Frank, Sarbanes-Oxley, and the Internal Revenue Code.” (For more details, click the link.)
Now, you have the chance to win a free registration for this upcoming webinar (retail price $149 for BNA subscribers and $249 for non-subscribers). All you have to do is either tweet a link to this post, making sure to reference our Twitter handle (@suitsbysuits), or retweet the link to this post that we’ll put up on Twitter. You can also qualify by commenting in this post with a question for Ellen and Jason to address during the webinar. The deadline to tweet, retweet, or comment is Monday, December 9. On the morning of Monday , December 9, we’ll randomly pick the winner and let him or her know by e-mail or Twitter message.
You may also enter the raffle by following these instructions.
If you’d like to go ahead and register for the webinar, click here.