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- 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
- The Inbox - Valentine's Day Edition
- 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
With a focus on coverage disputes under liability and property insurance contracts, Bill Schreiner represents both insurers and policyholders in coverage disputes of all types. From counseling insureds about coverage under potential policies to negotiation, litigation, and every type of dispute resolution in between, he has experience handing coverage issues of any stripe.
Showing 109 posts by William A. Schreiner, Jr..
Here at our polar vortex bunker in the freezing Nation’s Capital, supplies are running short and we’re vigorously debating whether we should make a mad dash to the Suits by SuitsMobile and drive straight down to visit our colleagues in Tampa, Florida, or just tough it out and pray/chant/hope that the cold will ultimately break. In the meantime, we’ve defrosted the following interesting bits of news from the world of executive employment issues:
- Non-competes down in Dixie: this analysis looks at how North Carolina courts enforce non-competes after a merger, this one looks at Florida’s statute governing those agreements, and this one discusses two recent Tennessee cases about them – and the author concludes non-competes are “alive and well (and enforceable)” in the Volunteer State.
- And from about as far from Dixie as you can get – Anchorage, Alaska – comes this thoughtful article about how small business owners and departing employees should look at non-competes. It notes that execs who leave to set up their own businesses in violation of a non-compete face the customary lawsuit as well as a unique risk: they will have “proved themselves dishonorable and word travels fast in Alaska.”
- Arthur Laffer, please call your office and bring your famous curve: Hungary’s Constitutional Court struck down that country’s 98% tax on severance payments, finding it conflicted with EU rulings and regulations aimed at protecting property ownership.
- The bounties offered to tipsters under Dodd-Frank haven’t yet turned into the problem big companies feared, the Wall Street Journal reports.
- The Title VII case involving retailer Abercrombie & Fitch’s prohibition on employees wearing hijabs – which we’ve written about before – led to a relatively rare split decision in the Tenth Circuit Court of Appeals this week, on the procedural point of whether all of the justices of that court should reconsider a ruling in Abercrombie’s favor made by three of the justices (if you’re a fan of appellate practice and/or French, this was a petition for rehearing en banc). Some pundits say this split could motivate the Supreme Court to take the case; others say no.
E-mailing Work Documents to Your Personal Account Looks Fishy, Says NY Appeals Court in New Non-Compete Opinion
Non-lawyers often wonder why folks in our profession spend so much time and money poring over the documents and e-mails each side usually has to produce in litigation. Sometimes, these document reviews are the legal equivalent of looking for the proverbial needle in a haystack.
And sometimes, you find the proverbial needle – or needles. And when you do, and the success or failure of the case turns on that e-mail, or set of e-mails, then the time and money spent on the search for those things turns out to have been a wise and necessary investment.
Take the case of TBA Global, LLC v. Proscenium Events, LLC. TBA is an event planning company that “produces live event programs and marketing presentations for companies and branded products.” In the course of its work, it hired three senior employees – Santoro, Shearon, and Cavanaugh. While the exact terms of their agreements differ from each other, all three signed non-compete agreements with TBA that provided that if they ever left the company, they would not “directly or indirectly, communicate with clients or prospective clients” of the company for a period of time (one year for two of the executives, and two years for the other). Read More ›
There’s often a fine line between being a bona fide whistleblower and being just an angry plaintiff suing for wrongful termination. The plaintiff’s allegations of whistleblowing conduct can often be very similar to the conduct that gave rise to him or her being fired – setting up something of a Rorschach blot test for the court that is trying to figure out what’s really going on.
That’s the position doctor Mark Fahlen found himself in. Doctor Fahlen was fired by his employer, a group of doctors working at a hospital in California. The doctor said he was fired, in part, because he complained – as a whistleblower – about nurses in the hospital failing to provide adequate care for his patients because they failed to follow his instructions. The group of doctors fired Fahlen after the hospital revoked his privileges (apparently a necessary part of being a member of the group) because it said Fahlen had angry fights with those same nurses – and, therefore, he was fired because he wasn’t a suitable employee. So, essentially the same factual allegations could be whistleblowing or a basis for termination. Read More ›
Here at the Suits by Suits Worldwide Operations Center, weather continues to have us flummoxed, vexed, and annoyed: even though a famous Pennsylvania rodent discerned that we would have six more weeks of our brutal winter, we’ve had a pleasant warm spell that is about to come to a crushing end due to a storm front that goes by the curious name of "Texas Hooker" (we did not make that up). And we’re about to be plunged back into the depths of the polar vortex yet again – although our earlier bouts with the grim chill may have wiped out our area’s growing population of stink bugs.
In any event, we always take shelter from the storms, the cold, and the heat by digging into our Inbox of interesting developments in executive employment disputes and the issues that surround them, including:
- The Securities and Exchange Commission has filed an amicus brief in the Second Circuit, arguing that its interpretation of a “whistleblower” under Dodd-Frank – essentially an employee who reports wrongdoing either internally or to the SEC – should be followed. We’ve covered this case, Liu v. Siemens, before, for an earlier ruling holding that Dodd-Frank’s whistleblower protections don’t apply overseas.
- Staying with the whistleblower theme for a minute: government contractor Kellogg Brown & Root is being attacked by a whistleblower, who has complained to the SEC and the Justice Department that employees are forced to sign confidentiality agreements that prevent them from ever disclosing allegations of wrongdoing. This one could be interesting…
- Auto retailer Carmax is defending the arbitration clause in its employment agreement in a California appellate court, urging it to reject an employee’s argument that the clause is illusory because Carmax reserved the right to amend it at any time.
- The bankruptcy trustee for real estate company Grubb & Ellis is trying to claw back $650,000 from a former executive, alleging the payments in stock and paid time off were fraudulent.
- Finally, while we write a lot about non-compete agreements between executives and employers generally, we rarely see them between divorcing spouses – but a California court of appeal ruled on just such an issue this week. The court held that a judge’s order prohibiting one spouse from working in the same field – the rum importing business – as the other spouse didn’t violate California’s general ban on non-compete agreements because the order was an order, and not an agreement. It remanded the case, however, finding its five-year, worldwide ban on the one spouse getting into the rum importing business was overbroad.
Here at Suits by Suits Polar Vortex Centre, the debate rages even as the hours tick down to kickoff: who should we root for in Sunday’s big game, the Denver Broncos or the Seattle Seahawks? Both teams’ home bases, from our point of view, have much to commend them in terms of the executive employment issues we love so much. Seattle is home to Robinson Cano’s almost-quarter-billion-dollar deal with the Seattle Mariners – maybe not C-suite, but a great employment arrangement in and of itself. Colorado, on the other hand, has given us some toothy stories over the years: from kidnapping to wrongful termination related to speech and a neat case on national origin discrimination.
But since our beloved Washington football club was essentially eliminated from contention in about, er, October, none of it has really mattered much to us.
- Speaking of sports, a former employee of an organization that sets up youth baseball leagues is asking a Tennessee court to void his non-compete agreement, arguing that the agreement is “unnecessary” because it “serves no legitimate business purpose or motive. There is absolutely nothing unique, novel, or secret about scheduling baseball games.” He also contends that he wasn’t asked to sign the agreement until his employer had decided to terminate him.
- An update on one we’ve been covering since we started in this blogging business: a new trial has been ordered in former “Desperate Housewives” star Nicollette Sheridan’s lawsuit alleging Touchstone Television Productions shouldn’t have fired her for complaining that a producer assaulted her; the court, accepting Sheridan’s argument, reversed an earlier decision that dismissed her case for failing to fully pursue administrative remedies.
- We’ve also written before about allegations of employment discrimination at the Borgata Casino in Atlantic City. This week, the casino settled a case brought by over a dozen former employees who allege they were fired because they reached the ripe old age of…40.
- Now that this Inbox is turning into the Ghost of Blog Posts Past, let’s continue the theme: we wrote several months ago about the case of Thomas Kimmett, a former deputy attorney general for the Commonwealth of Pennsylvania, who alleged he was fired in retaliation for reporting what he called waste and abuse in the office. This week, the Third Circuit Court of Appeals affirmed a district court’s ruling dismissing the suit, holding that Kimmett’s First Amendment rights weren’t violated because his complaints about the waste and abuse didn’t fall within the protection of Pickering v. Board of Education, a Supreme Court case that protects public employees who exercise their free speech rights.
In Part 1 of this post, we looked at a heated executive employment dispute that is being tried in Dallas. The case involves a former hedge fund executive, sued by his former employer for allegedly not returning 59,000 confidential documents when he resigned and for trying to poach the firm’s clients. The Dallas Morning News has full coverage here and here.
The trial is forcing both sides to air things about the other – and themselves – that they would likely not want raised in a public forum. In Part 1, for example, we noted how Highland executives testified that a compensation program had to be stopped after the executive, Daugherty, left the firm, because (as the Dallas Morning News put it) Daugherty “engaged in conflict of interest transactions” for the compensation program. Surely Highland would rather not have raised that issue publicly. But that’s what aggressive litigation sometimes forces parties to have to do to win their case – which is the cautionary tale of the Highland v. Daugherty trial. Read More ›
Many of the executive employment disputes we write about focus on one or two key issues – the enforcement of a non-compete clause in an employment agreement, for instance, or the odd ways a severance package can work.
A case being heard in Dallas, however, brings together a whole set of executive-employment-related problems in one place: alleged defamation, corporate confidential information allegedly not returned by a departing executive in breach of a written employment agreement, compensation demands and agreements that were never put in writing, and an executive’s desire to work part-time from home. Throw in alleged self-dealing and conflict of interest allegations against the executive – who ran a specialty investment team at the employer, a large hedge fund – and you have the sort of intense, angry dispute that used to be featured on a soap opera set in Dallas that captivated the nation in the 1980s.
Ah, the smells of the holiday season: fresh-cut evergreen trees, just-baked cookies and other goodies, bowls of tasty fruit punch. Take a deep whiff wherever you are. Breathe it in deep.
But be careful about sniffing those smells, though.
That is the apparent lesson from the Fifth Circuit Court of Appeals’ decision in Tonia Royal’s retaliation lawsuit against her employer, an apartment management company named CCC&R Tres Arboles. The appellate court held that the trial court incorrectly gave the apartment company summary judgment, because too many material facts about the basis for Ms. Royal’s firing were in dispute. And many of those facts relate to the behavior of other CCC&R employees, who Ms. Royal alleged sexually harassed her by sniffing her in a rather curious and uncomfortable manner. Read More ›
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!
Here at the Suits by Suits World Last-Minute Gift-Buying-Wrapping-And-Shipping Center, we’re scrambling to finish preparations for our big holiday celebration, but as always, employment-related disputes are filling our time: The eight maids-a-milking are whispering about Title VII violations, the nine ladies dancing are insisting on an ERISA-type plan for future health costs stemming from dancing-related injuries, the ten lords-a-leaping and eleven pipers piping are just getting in everyone’s way, and the twelve drummers drumming claim that putting them last on the list is our way of retaliating against them for blowing the whistle on harsh working conditions in an offshore toy factory owned by this jolly red friend of ours.
And all of them wonder how it is that they were gifted to us without violating slavery and human trafficking laws. Bah humbug! No, that’s too strong – it is our favorite holiday.
In any event, here are the most interesting news items that came across our transom in the past week:
- For those of us who write about executive employment disputes, the case of Missouri anchorman Larry Connors has been the gift that kept giving all year, raising interesting issues – now, he’s filed a discrimination suit against the TV station that fired him.
- A fired real estate executive received a holiday gift this week when the Second Circuit Court of Appeals reinstated her retaliation claim against her former employer, real estate manager Andalex. Andalex didn’t walk away without a stocking-stuffer, though: the appellate court affirmed a trial court’s dismissal of the executive’s hostile work environment claim and her claims for gender and national origin discrimination.
- In a drama that seems like it’s gone on as long as Masterpiece Theater but could use a little Law & Order: UK to move things along, the fallout from the BBC’s executive pay scandal continues to rock the United Kingdom.
- Speaking of overseas developments, here’s a thoughtful article on things to consider when you send employees overseas.
- Internet-based travel company Expedia is facing an investor’s derivative lawsuit arising out of its award of stock to CEO Dara Khosrowshahi. The investor alleges the board couldn’t give Khosrowshahi the stock as a bonus because the company hasn’t met the required targets to authorize it.
- Add Vermont to the list of states looking at tightening their whistleblower protections.
- The Wall Street Journal has this interesting piece on how non-competes can hamper second and third act careers for talented folks.