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- Suits by Suits Named to Blawg 100
- “Change of Control” Case Isn’t Governed By ERISA, Court Rules
- Court Nullifies CFO’s Employment Because of Prior Extortion Conviction
- The Yates Memo’s Illusory “Extraordinary Circumstances” Exception
- Kiss Your Retaliation Suit Hello: Company Faces Trial after Changing Explanation for Firing
- Federal Whistleblower Statutes Aren’t a Cure-All
- Hold on to Your (Top) Hat: ERISA Section 502(a)(3) May Be Used to Enforce the Terms of a “Top-Hat” Benefits Plan
- A Bitter Pill for Ex-Rite Aid GC: Delaware Court Finds His 2015 Suit for Indemnification Untimely
- A Funny Thing Happened to the Forum Selection Clause
- Fired for Taking the Fifth: Famous Firings in History
- "Key Man" Provisions
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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 119 posts by William A. Schreiner, Jr..
Talk about your inter-family disputes: one federal agency – the Department of Labor – has filed suit against the United States Postal Service, an independent federal agency (but one of the few explicitly authorized by the Constitution). The reason for the federal lawsuit, filed in Missouri: the Postal Service’s alleged poor treatment, firing, and alleged harassment of an employee who claims he blew the whistle on safety hazards in a mail facility.
Here’s the background, delivered despite any contrary weather: Thomas Purviance worked for the Postal Service for 35 years, most recently as a maintenance supervisor at a mail distribution center near St. Louis. He had no record of disciplinary or performance issues. In late December 2009, Purviance complained to his supervisors about what he perceived to be carbon monoxide and fuel oil leaks from some of the equipment at the center, as well as a pile of oil-soaked rags which he thought was a safety hazard. Getting no response, Purviance eventually called the local fire marshal and made a 911 call to report the carbon monoxide leak. Read More ›
No one likes to be wrong, and being proven wrong stinks. And that’s especially true for folks in my profession – we’re not known for being gracious losers.
But even worse than just being proven wrong is having to pay the other side what they spent to prove you wrong. This is a relatively rare thing in the United States: the “American Rule” means that each side pays its own attorney’s fees, unless a contract or statute shifts the winner’s fees to the losing party’s side of the ledger.
But those fees – over $200,000 of them – were shifted to the loser in Stuart Irby Co. v. Tipton, et al., an Arkansas case involving a non-compete clause that the plaintiff said prevented three of its former salesmen from going to work for another business in the electrical supply industry. As we’ve noted, Arkansas can be a tough place for businesses trying to enforce non-competes: for example, its courts won’t rewrite them for the parties if they’re overly broad or otherwise unenforceable. Read More ›
While we’re a blog about disputes between executives and companies, we can’t overlook those significant days when those companies and executives pause for a national holiday. Through our first year, we’ve looked at how holidays – when most business stops and courts close (putting a brief halt to the disagreements we cover) – came to be, and their impact on the American workspace.
Regular readers will guess where we’re going today. Assuming you are not one of the 35 million-odd Americans traveling more than fifty miles for the traditional start to summer – and if you are, put down the device on which you’re reading this and watch the road, as someone is likely braking in front of you – read on for our look at how we got to enjoy Memorial Day. Read More ›
Here at the Suits by Suits Executive Employment Dispute Resolution and Litigation Centre, we’re closing the door and shutting things down, to paraphrase Alan Jackson, as Memorial Day approaches (our history of that day is here, by the way). We’ve decided to walk to the beach this year because it may actually be faster than getting on the highway – given that fifteen percent of our Washington, D.C. home base clogs the roads to get out of town, while more than that come in to wander around the National Mall in search of restrooms.
Assuming you are not reading this while you’re driving, you may find this collection of developments in the world of executive employment disputes and related fields to be interesting:
- Some interesting thoughts about the criticism The New York Times faces after its surprise firing of executive editor Jill Abramson is here; it includes this truism: “An important lesson is for employers to understand that the leverage that they may have over employees in the workplace does not necessarily extend to the court of public opinion.”
- An alleged whistleblower who worked at Dish Network in its South Asian business alleges the satellite TV provider is blacklisting him from working in Bollywood.
- The growing scandal surrounding the Veterans’ Affairs department has, of course, whistleblower implications – we’ll likely be writing about this more in the future, but here’s one note about an allegedly blown whistle at a Colorado VA facility.
- Those cyber-thieves got more than data; they got a chunk taken out of his pay too: former Target CEO Gregg Steinhafel had his 2013 compensation slashed by more than one-third by the retailer’s board of directors this week; he’ll also have to repay over $5 million in retirement benefits. Don’t cry too loudly for the CEO whose exit was an “involuntary termination” after a data breach scandal rocked the company’s holiday shopping season last year: he still has a golden parachute worth more than $54 million.
- Maybe he’s not an executive, but he’s certainly a high flyer: an air marshal who was fired after discussing cutbacks to the air marshal program on television will have to defend his appellate victory at the United States Supreme Court. Robert MacLean convinced the U. S. Court of Appeals for the Federal Circuit that he should have been allowed to use a whistleblower defense when the TSA undertook to fire him; this week, the Supremes agreed to hear the government’s appeal of that ruling.
- Insert the Memorial Day beer-drinking pun of your choice here: A St. Louis jury returned a verdict in favor of megabrewer Anheuser Busch this week, finding that it did not discriminate against a former top-ranking executive when it paid her less than men in similar positions. Even though her bonus and salary were over 40 percent lower than her male predecessor’s, the jury found no evidence to support the executive’s claim of gender discrimination.
Not “Engineered To Amaze”: Quicken’s “Non-Contact Provision” Unenforceable Because It’s Too Broad, Arizona Appellate Court Holds
We’ve written about this issue before, but it bears repeating: as a general matter, the more narrowly tailored and economically justifiable a non-compete agreement is, the more likely it is to be enforced (assuming state law allows it at all). The same standard applies to the closely related “non-contact” clause that keeps former employees from luring their old colleagues away to new positions.
An Arizona appellate court’s decision earlier this month reinforces this principle. That court held – in Quicken Loan v. Beale – that a “non-contact” clause that kept former Quicken loan managers from contacting current loan managers for two years wasn’t narrowly tailored to protect Quicken’s financial interests, and was an unreasonable restriction on the former employees’ speech rights. And, on a purely financial note, the court affirmed that Quicken had to pay its former employees’ attorney’s fees – as well as the fees the former employees’ new company, loanDepot, incurred when it jumped into Quicken’s suit. Read More ›
Let me explain what that means: “vouching” is, for us members of the bar, both a technical term and a no-no. When it’s done at the trial of an executive employment dispute, it can unfairly prejudice the jury – and, ultimately, the “vouched-for” side can have its victory overturned by an appellate court. We’ll see how this happened in the case of one Mindy Gilster.
But first, more on “vouching.” In law, it means essentially what non-lawyers think it means: to give a personal assurance of the credibility or truth of something. All of us use this in our daily lives: “I know you’ll love that restaurant;” “trust me, you’re making the right decision;” and so on. Lawyers, though, can’t “vouch” for their clients or for a witnesses’ credibility. Not only is it considered a bad practice, but the Rules of Professional Conduct in most states forbid us from “assert[ing] personal knowledge of facts in issue…or stat[ing] a personal opinion as to the justness of a cause, the credibility of a witness, [or] the culpability of a civil litigant…” Put another way, lawyers need to build arguments from the facts that are actually entered into evidence, and not on what they personally think the facts should be. Vouching comes up most often in criminal cases – but, as in the case of our subject today, it can surface in civil litigation over employment disputes. Read More ›
Here as we approach the close of April, we’ve noticed (in something of our Moneyball moment) that three of the four cities where Zuckerman Spaeder has offices – New York, Baltimore, and Washington – host baseball teams that have won more than half their games thus far this season. Our colleagues in Tampa are the only ones with a team winning below .500. Maybe we can make up for that by opening an office in Milwaukee, where the Brewers have won nearly 75% of their games.
In any event, the items below came over our transom this work and are worthy of note in the world of executive employment disputes:
- Mary Willingham, the controversial University of North Carolina staff member whose comments on student-athlete literacy were widely circulated, has resigned, citing a hostile work environment in the flak over her views.
- A federal judge in New York dismissed Veramark Technologies’ suit against its former VP of sales and his new employer Cass Information Systems; the court held that Veramark’s non-compete agreement with the former VP was not enforceable because Veramark couldn’t show it was needed to protect its existing customer relationships.
- Speaking of non-competes, another columnist in the Boston Globe – which has extensively covered Governor Deval Patrick’s proposal to ban non-competes – has come out in support of that ban.
- An Alabama newspaper published this “how-to” guide to whistleblowing this week.
- 64,000 technology workers in the Silicon Valley have tentatively settled their lawsuit against Apple, Google, Intel, and Adobe, alleging those companies colluded to keep down wages and limit “poaching” employees from one company to another. The settlement is reportedly for $324 million, and comes just a few days after the employees argued against Apple’s motion that they could not use statements about the character of late Apple CEO Steve Jobs.
- A bill in the Iowa State Senate that would expand whistleblower protections moved to the full body this week.
- A former bank examiner’s whistleblower suit against the Federal Reserve was dismissed this week, after a federal judge in New York ruled that she had not connected her allegations of wrongdoing at J. P. Morgan with her termination.
The answer to that question, at least according to the Ninth Circuit Court of Appeals, is “no.”
It seems straightforward, but getting to that “no” requires a little bit of an understanding of insurance – in this case, directors’ and officers’ (“D&O”) insurance. A D&O policy was at issue in this case, Forest Meadows Owners Assoc. v. State Farm Ins. Co., in which the policyholder – a condominium association – was sued by an employee it had fired, and sought coverage from its insurer. Read More ›
It’s been a busy week here at the Suits-by-SuitsGlobal Executive Employment Dispute Centre in Washington, D.C., what with interesting Supreme Court arguments being heard, the famous Cherry Blossoms about to blossom, our beloved Nationals putting final touches on their pitching rotation, and even some more snow from the winter without end.
But none of that matters next to what’s really important about this week: which is that Monday marked thirty years (!) since the fabled “Breakfast Club” met for detention on a dreary Saturday, March 24, 1984, (at Shermer High School, Shermer, Illinois…). In celebration of the great teen-angst classic, we’re using quotes from the film to introduce this week's collection of interesting news notes from the world of executive-level employment disputes. So here they are, framed by the work of the movie’s writer and director, the late, great John Hughes: Read More ›
We see – and report on – plenty of whistleblower complaints here at Suits-by-Suits. We’re mostly interested in how those complaints play out legally, and what they can teach us about ways to avoid, or manage, whistleblower disputes and what leads to them. But outside of the law, some complaints include alleged facts that just tell a compelling story in and of themselves.
How about these allegations in Glenn Meeks’ wrongful termination complaint against Chicago State University: Financial mismanagement, a romantic relationship between top university executives, high-level posts filled with unqualified personnel, intrigue on the university’s board of trustees after Meeks complained of these things, and – a bonus, from a storytelling perspective – a suspicion of improper interference by the Governor of Illinois in the whole thing.
And another bonus: Meeks filed his complaint in Illinois state court just two weeks after another whistleblower at the same university was awarded $2.5 million. Read More ›