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Ellen D. Marcus
Partner, Holmes Costin & Marcus PLLC
Email | 703.991.7951

Ellen D. Marcus, a trial lawyer based in Alexandria, Virginia, is a co-founder of Suits by Suits and a guest contributing editor. Ellen’s clients include company executives and other high-level employees. On behalf of these and other clients, Ellen has brought to a successful resolution cases involving trade secrets, allegations of contract interference and fiduciary duty violations, and disputes over severance, non-compete and non-solicitation agreements. In addition, Ellen frequently advises companies and executives on employment and separation agreements and assists in their negotiation and drafting.

Showing 89 posts by Ellen D. Marcus.

Non-Compete That’s Here Today But Gone Tomorrow – Beware The ‎Unintended Consequences Of An “Integration Clause”‎

Magic Hat with Stars Coming OutA recent decision from an appeals court in Pennsylvania is a warning to companies that the non-compete agreement they think they have with their top executive could be unintentionally wiped out with a few words in a later agreement.  In law-speak, the words are called an “integration clause” or a “merger clause.”  Through them, the parties agree that their agreement is their “entire” agreement and that it wipes out any earlier agreements. 

In the Pennsylvania case, Randy Baker was the President and CEO of Diskriter when Diskriter was acquired by Joansville Holdings, Inc.  The terms of the acquisition were memorialized in a stock purchase agreement (“SPA”), which had non-compete and non-solicitation clauses that apparently bound Baker. Read More ›

Dov Charney’s Pants And A Sexually Charged Workplace – ‎ What Is A Company Seeking To Minimize Litigation Risk To Do?‎

We at Suits by Suits are so excited by American Apparel’s dispute with its recently-fired CEO and founder Dov Charney that we can barely keep our shirts on.  After all, the dispute between the clothing manufacturer and its controversial former leader is bursting at the seams with takeaway points for feuding companies and C-suite employees (and those wanting to avoid having feuds).  For example, as we described in an earlier post, the dispute illustrates that terminating a key company officer may jeopardize company financing.  The dispute also presents the question:  can a company like American Apparel, which knew that Charney was apparently known for not being able to keep his pants on, decrease its exposure to the inevitable sexual harassment lawsuit by having all of its employees acknowledge in writing that the company’s workplace is sexually charged?   It depends.    Read More ›

The Inbox - Friday the 13th of June Edition, 2014

  • Netflix is challenging the lawsuit filed against it by its former content acquisitions executive Jerry Kowal, whom Netflix fired before he could resign to work for Amazon last summer.  Kowal's claims against Netflix - which we examined earlier - include defamation.  Netflix now claims that Kowal took its confidential documents - downloading them while on vacation weeks before he left for Amazon.  
  • A 48-year-old former director of Disney's story department has sued Disney in Los Angeles Superior Court for age discrimination, claiming that Disney fired him after 26 years and replaced him with a woman in her late 20s or early 30s.  
  • Twitter's COO Ali Rowghani resigned this week, although he will continue as an employee of the company.  Reportedly, he had little to do after CEO Dick Costolo took on more responsibilities at the struggling company.  Rowghani and Costolo exchanged friendly tweets about his resignation, so we would be surprised to see a suit by suit emerge.
  • SunTrust Bank is paying $300,000 to settle a charge by the EEOC that one of its branch managers in Sarasota sexually harassed three women who reported to him by, for example, allegedly repeatedly trapping one of them at the teller's desk using his body and telling another that she should wear a bathing suit to work.

Interested in Today's Debate on Non-Competes - Including for Camp Counselors? See This Week's New York Times

Campground SignNon-competes are a frequent topic here on Suits by Suits.  We have discussed how the laws of the 50 states vary - and boy do they. Some states (like California) flat out prohibit non-competes, while some states (like Delaware) not only permit non-competes but enforce broad restrictions on employment.  Meanwhile, in boardrooms and statehouses (like Massachusetts's), a debate is raging about whether non-competes are in the public's interest - especially in today's world, where our work force is highly mobile and the states are in an arms race to attract start-up tech companies (and all those jobs).  For those of us interested in the debate, three recent items in The New York Times should not be missed: an article reporting on the proliferation of non-competes in unexpected fields (such as summer camp counseling); a discussion among lawyers, professors and lobbyists about the merits or lack thereof of non-competes; and an opinion by New York Times Editorial Board that non-competes hurt workers - especially low-wage and unskilled workers lacking the bargaining power to resist entering into non-competes. 

Buyer Beware: Hiring Competitor’s Star Executive May Not Only Get You Sued but Get You Sued in the Competitor’s Favorite Court

Court HouseWe have written before here on Suits by Suits about the risk to a company hiring an executive from a competitor of being sued by the competitor for tortiously interfering with the executive’s non-compete agreementA recent decision from a federal court in Pennsylvania sheds light on another facet of that risk:  being forced to defend the lawsuit in a faraway court favored by the competitor because the executive agreed to be sued there.  Read More ›

Do “Pornographic Materials” That Were Discovered in Senior VP’s E-mails After He Was Fired Let Company Off the Hook for Severance?

Skull on Computer KeyboardBon-Ton Stores, Inc. alleges in a lawsuit that it recently filed against its former Senior Vice President, Director of Sales Gary Pralle that – after the company fired Mr. Pralle – it discovered “pornographic materials” and “documents containing racial slurs” in his e-mails.  According to Bon-Ton, had it known about this “after-acquired evidence” before it fired Mr. Pralle, it would have had “cause” for firing him under its “Executive Severance Pay Plan” such that Mr. Pralle would not be entitled to severance.  In other words, Bon-Ton v. Pralle is an example of a company invoking the after-acquired evidence doctrine to overcome a breach of contract claim.  (Bon-Ton also alleges that bad behavior by Mr. Pralle that the company knew about before it fired him also gave the company “cause,” but those allegations mess up the example so we’re ignoring them.) Read More ›

Is It a Defense to the Buffalo Jills’ Minimum Wage Claim That They "Agreed" to Be Independent Contractors?

Cheerleading SilhouetteOn Friday, we described a lawsuit brought recently by five Buffalo Jills cheerleaders claiming that they should have been paid the minimum wage for all of the hours that they worked for the squad but were not. We said that a key issue in the case is whether the Jills are employees or independent contractors for purposes of New York wage and hour law because employers are required by the law to pay employees – but not independent contractors – the minimum wage. The lawsuit raises another question: is it a valid defense to the Jills’ claims that the defendants required them to sign contracts expressly agreeing that they are "independent contractors"? Here is one of those rare legal issues with a simple answer, at least under the federal wage and hour law called the Fair Labor Standards Act: No. As recently as last year, the U.S. Supreme Court said of the Fair Labor Standards Act: "The FLSA establishes federal minimum-wage, maximum-hour, and overtime guarantees that cannot be modified by contract."

So companies should beware that having people who work for them agree in writing that they are independent contractors does not inoculate the companies from wage and hour claims. And people who work for companies should know that just because they signed something saying that they are independent contractors does not necessarily mean that they are for purposes of the wage and hour laws.  They may in fact be entitled under the law to be paid the minimum wage and overtime.

Buffalo Jills Boo Bosses but Lawsuit Raises Question: Are NFL Cheerleaders "Employees" Protected by Minimum Wage Laws?

CheerleaderIn a lawsuit filed on Tuesday, five Buffalo Jills cheerleaders claim that the Buffalo Bills NFL franchise and two companies that manage the squad are violating New York wage and hour laws. The Jills allege that they are "employees" for purposes of New York law and therefore must be paid the minimum wage - $8 per hour in New York – for their work as Jills. We have explored wage and hour laws – the federal Fair Labor Standards Act and similar state laws – here at Suits by Suits before but not the employee versus independent contractor distinction that is the key to many wage and hour cases and on which the Jills’ case could turn. Read More ›

The Inbox – April 18, 2014 – The Easter Bunny Edition

Easter bunny

    • A Seattle judge has denied Relator.Com operator Move Inc.’s motion to prevent Errol Samuelson from working for its rival Zillow as Chief Industry Development Officer. Move Inc. argued that Mr. Samuelson will inevitably disclose trade secrets that he allegedly took from Move Inc. in his work for Zillow and therefore should not be allowed to work there. The theory of inevitable disclosure of trade secrets is one we have examined before.
    • WaPo’s Jenna McGregor explains why Henrique de Castro’s severance pay for 15 months at Yahoo totals $58 million; it has to do with high stock prices.  We considered earlier how de Castro’s contract may have required Yahoo to pay him severance despite performance issues.
    • Forbes blogger Todd Hixon welcomes efforts in Massachusetts to abolish non-competes because, in his view, non-competes hurt innovation. The differences in state laws on non-competes and shifting attitudes towards them have been a major focus of ours here at Suits by Suits.
    • The Florida Supreme Court ruled yesterday that the Florida Civil Rights Act prohibits discrimination in the workplace for pregnancy, even though the Act does not explicitly say anything about pregnancy. The high court reasoned in a 6-1 decision that the Act’s prohibition against gender discrimination covers discrimination based on pregnancy. Peguy Delva claims in the case that real estate developer Continental Group denied her extra shifts and did not schedule her for work after she returned from maternity leave. Federal law expressly prohibits pregnancy discrimination.

Executive in the Middle – Texas Monthly and The New York Times Company Duke It Out in Court over Top Editor Jake Silverstein

Newspaper Tempers FlareYou can read about it in the Times:  the publisher of Texas Monthly sued The New York Times Companylast week over Jake Silverstein leaving his post as editor-in-chief of Texas Monthly to be editor of The New York Times Magazine.  Silverstein had a three-year contract with the Texas publisher that was supposed to run through February 2015.  The publisher claims that The New York Times Company tortiously interfered with that contract, causing Silverstein to break it.  This is a common scenario for sought-after executives when they switch companies:  the companies fight in court over them but not against them.  The executive in the middle may feel like she dodged a bullet by not being named as a defendant in the lawsuit.  In fact, it is not so simple. Read More ›