April 2013 Monthly Roundup

April showers bring May flowers, which, as the old joke goes, usually bring these. At ‎Suits by Suits, however, April brought a mix of interesting stories involving non-‎compete agreements, the mechanics of employment contracts, and all sorts of other ‎topics:‎

• Third Circuit Rejects Narrow Construction of Sarbanes-Oxley Whistleblower Claim
  Jason M. Knott | April 30, 2013
• Recent Breach of Contract Lawsuit Against Michael Keaton Illustrates Measuring Expectation Damages
  Ellen D. Marcus | April 24, 2013
• Why Didn't Rutgers Fire Basketball Coach Mike Rice for Cause?
  Ellen D. Marcus | April 23, 2013
• “You’ve Got…a  Non-Compete!”
  William A. Schreiner, Jr. | April 17, 2013
• Criminal Trial Begins in Case Against Former Executive Search Head
  Jason M. Knott | April 15, 2013
• California Continues to Go After Non-Competes
  P. Andrew Torrez | April 11, 2013
• California Strikes Down An Employee’s Agreement to Arbitrate on Substantive ‎Unconscionability Grounds (As “One-Sided”)‎
  P. Andrew Torrez | April 8, 2013
• Employment Agreement Tip of the Week No. 2: Once You Get It in Writing, Put Out Future Fires by Making Sure the Writing Is Clear
  William A. Schreiner, Jr. | April 5, 2013
• Employment Agreement Tip of the Week No. 1: Get It in Writing
  William A. Schreiner, Jr. | April 3, 2013

March 2013 Monthly Roundup

For us here in the greater Baltimore/Washington metropolitan area, March was true to form – or at least, the Farmer’s Almanac – and came in like a lion (with city-closing snow and everything!) but has gone out like a lamb, as today is beautifully sunny with highs in the mid-60s.

As the Farmer’s Almanac tells us, that saying was rooted in the ancient belief that weather would seek a balance, and that good events would cancel out bad ones.  That sense of balance held true for your Suits by Suits editors this month as well, as Ellen Marcus documented the unique ability of shareholders to protest “golden parachutes” for companies emerging from Chapter 11 bankruptcy – as contrasted with their general inability to do much else.  Bill Schreiner explained how the average executive can protect herself from incurring certain legal expenses through directors & officers’ (“D&O”) insurance policies, while noting the limits of those D&O policies especially in high-profile cases like former Penn State coach Jerry Sandusky.  Andrew Torrez continued to document the push-and-pull in the legislative arena over whether and to what extent courts should uphold covenants not to compete contained in employment contracts, and warned Gov. Deval Patrick that the proposed new law in Massachusetts may not do what he expects it to do.  And Jason Knott warned us that only 2% of Sarbanes-Oxley whistleblowers succeed on their claims, while walking us through a comprehensive recent decision by the Second Circuit that maps out how future whistleblowers can prove the elements necessary to assert their cases.

A full list of all of our articles from March follows.  And remember, Suits by Suits is now on Twitter – and that’s no April Fools!

• Shareholders Can Have Their Say on Executive Pay, But Not Much Else
  Ellen D. Marcus | March 28, 2013
• Tom Horton's Severance is Probably in the Golden Parachute Bag if the Court Applies the Business Judgment Rule Rather than Section 503(c) of the Bankruptcy Code
  Ellen D. Marcus | March 26, 2013
• How Does that Burden of Proof Work Again? The Second Circuit’s Recent Sarbanes-Oxley Decision Explains
  Jason M. Knott | March 20, 2013
• You’ve Got (Unprivileged) Mail: Court Rules that Prosecutors Can Use E-mail Sent by Personal Attorney to Employee’s Work Account
  Jason M. Knott | March 18, 2013
• More on Covenants Not to Compete: A Proposed Massachusetts Law Gets a Big Endorsement
  P. Andrew Torrez | March 13, 2013
• The Basics: "Hacking," the Computer Fraud and Abuse Act, and You 
  P. Andrew Torrez | March 11, 2013
• Federal Court of Appeals Rejects Sarbanes-Oxley Whistleblower’s Challenge to Department of Labor Ruling
  Jason M. Knott | March 7, 2013
• Everything Has a Limit, Jerry Sandusky Edition – Part 2
  William A. Schreiner, Jr. | March 7, 2013
• Everything Has a Limit, Jerry Sandusky Edition – Part 1
  William A. Schreiner, Jr. | March 7, 2013
• Wow! A $56 Million Golden Parachute for the Heinz CEO. Well, that Depends on What You Mean by "Golden Parachute."
  Ellen D. Marcus | March 6, 2013
• Groupon CEO's Departure Memo: Watch What You Say, Even if You Say it Nicely
  William A. Schreiner, Jr. | March 4, 2013

February 2013 Monthly Roundup

Now that Suits by Suits is on Twitter, you and your friends can follow us here to get up-to-the-minute Suits by Suits updates.   If you missed us last month, ‎check out Suits by Suits’ posts, inspired by current events, on legal issues ‎affecting companies and high-level employees:

• Executives: Beware of Dodd-Frank Compensation Clawbacks 
  Steven Salky | February 28, 2013
• Why the Color of Your Parachute May Be Gold - Change-in-Control Severance Agreements for C-Suite Employees 
  Ellen D. Marcus | February 25, 2013
• SEC Inspector General Grades Dodd-Frank Whistleblower Program
  Jason M. Knott | February 20, 2013
• Grey’s Anatomy Takes On The Law, And The Law Wins
  Jason M. Knott | February 18, 2013
• Is A Bad Job Interview Evidence Of Discrimination? (Part 2)‎
  William A. Schreiner, Jr. | February 15, 2013
• Is A Bad Job Interview Evidence Of Discrimination? (Part 1)‎ 
  William A. Schreiner, Jr. | February 14, 2013
• Court Order: You Shall Not Start Your New Job at that Oil Company Because We're Worried About Irreparable Harm to the Oil Company You Just Quit 
  Ellen D. Marcus | February 13, 2013
• EPLI: If You Hire Or Manage People And You Don’t Know What That Stands For, You ‎Should Probably Read This, Part 2‎ 
  William A. Schreiner, Jr. | February 6, 2013
• EPLI: If You Hire Or Manage People And You Don’t Know What That Stands For, You ‎Should Probably Read This: Part 1‎
  William A. Schreiner, Jr. | February 6, 2013 
• Take A Close Look At That Employee Handbook...At Least In D.C. 
  William A. Schreiner, Jr. | February 5, 2013

‎

Monthly Roundup: 34-Minute Power Outage Edition

So much for starting the year off slowly!  In the areas we track – primarily disputes and issues between companies and their executives, but also anything that can impact those employment relationships – a lot happened in the first month of 2013.  We wrote about it – because while most of the country was in a deep freeze, here at SuitsbySuits headquarters in Washington, we enjoyed an unusually warm January and so were able to keep our fingers warm enough to type (no comment on our Tampa colleagues who bask in comparative warmth year round). 

The boundaries and mechanics of litigation and arbitration between executives gave rise to some thoughtful commentary on recent cases from our colleagues John Connolly and Adam Fotiades, which we’ve captured below in case you missed them.  We also looked at covenants not to compete, discovery gone awry, perpetual battles over social media and religion in the workplace, and – remember back to the holidays? – potential claims Bob Cratchit might have had against Ebenezer Scrooge under federal law:

• Tour De Fraud - When Finally Settling Your Dispute May Not Be Finally Settling Your Dispute (Ellen D. Marcus, January 30, 2013)

• Sometimes, It Pays To Be A Bad Sport: California Court Finds That Employee Who Deceived Her Employer About Having Signed An Arbitration Agreement Cannot Be Compelled To Arbitrate (Adam L. Fotiades, January 28, 2013)
• State vs. State Smackdown: How Other Courts Are Responding To California’s Unique Law ‎Prohibiting Covenants Not To Compete (P. Andrew Torrez, January 23, 2013)
• In Hallmark Ruling, Court Affirms Jury Verdict Against Greeting Card Exec (Jason M. Knott, January 21, 2013)
• Montana Supreme Court Sends Employee On Arbitration Expedition (Jason M. Knott, January 16, 2013)
• Does an Executive Have a Duty to Pull Punches In Personal Litigation Against the Company? (John J. Connolly, January 15, 2013)
• Not To Preach, But Religion In The Workplace Continues To Cause Disputes (William A. Schreiner, Jr., January 13, 2013)
• Can You Be Fired For Complaining About Work On Facebook?‎ (William A. Schreiner, Jr., January 13, 2013)
• Cratchit v. Scrooge - Further Holiday Adventures in Employment Law (Ellen D. Marcus, January 2, 2013)

Suits by Suits Monthly Roundup – November

In November, Suits by Suits explored a number of developments that are relevant to high-level employees and their companies – including the just-released report on awards made to whistleblowers under Dodd-Frank, a  ruling from the Virginia Supreme Court that managers may be personally liable for the wrongful termination of an employee, a First Circuit decision that Starbucks cannot make its baristas share tips with their supervisors, and the court-approved termination of an employee who mooned his bosses.  We also looked at how exit fees for the Atlantic Coast Conference are like liquidated damages in employment agreements, the dangers of waiving contractual arbitration rights in employment agreements (part 1 and part 2), the possible cost of an affair in the work place,  and blaming “hormones” for poor job performance.

Here is a full roundup of our posts from November:

• Legal Lessons From the World of Reality TV: Waiving A Contractual Right To ‎Arbitrate An Employment Dispute (Part 2 Of 2)‎ (Adam L. Fotiades, November 29, 2012)
• How Is An ACC "Exit Fee" Like Damages for Competing with a Prior Employer? (Jason M. Knott, November 28, 2012)
• Legal Lessons from the World of Reality TV: Waiving a Contractual Right to Arbitrate an Employment Dispute (Part 1 of 2) (Ellen D. Marcus, November 27, 2012)
• Over the “Moon”: Court Approves Termination with Cause as Result of Employee’s Display of Derriere (Jason M. Knott, November 21, 2012)
• SEC Issues Annual Report on Dodd-Frank Whistleblowing Program: 3,001 Tips, One Award (Jason M. Knott, November 20, 2012)
• First Circuit to Starbucks: No Means No, Tips are for Baristas Only (Ellen D. Marcus, November 16, 2012)
• Tip: Don’t Blame A Pregnant Woman’s “Hormones” For Job Performance Before Firing Her (William A. Schreiner, Jr., November 15, 2012)
• The Cost of an Affair (P. Andrew Torrez, November 13, 2012)
• Virginia Is For... Plaintiffs? Virginia's Supreme Court Finds Managers, Supervisors May Be Personally Liable for Firing an Employee (P. Andrew Torrez, November 5, 2012)
• Starbucks Serves Its Employees Customer Service Duties with Shots of Supervisory Responsibility - How Many Extra Shots Mean No Tips? (Ellen D. Marcus, November 1, 2012)

And don’t forget to read our monthly roundup from September and October.

Suits By Suits Monthly Roundup -- October, 2012

In the run-up to last night’s elections, we discussed a number of suits by suits with political implications, including ousted Florida Republican Party chairman Jim Greer’s suit against the Florida GOP, as well as two posts (here and here) discussing the implications of Gallaudet University’s decision to suspend its Chief Diversity Officer, Angela McCaskill, for political speech she engaged in outside the workplace opposing same-sex marriage in Maryland (which passed last night, by the way).  We also discussed the controversial whistleblower protection provision (§ 922) of the 2010 Dodd-Frank Act in considerable depth (here, here, and here).

Of course – however it may have seemed if you lived in a swing state like Virginia, Ohio, Florida, or Colorado – there was more to October of 2012 than the impending election, and we were on top of those issues as well.  In particular, we discussed the strange case of former Goldman Sachs VP Sergey Aleynikov, who was charged twice with stealing Goldman Sachs' intellectual property (in this case, proprietary computer code) but who nevertheless sought indemnification and advancement of his ongoing defense costs from Goldman Sachs.  (We also discussed the D&O insurance implications of Aleynikov's lawsuit.)

Here's the full roundup of all of our posts from October:

• A Note to Companies and High-Level Employees: How to Resurrect a Dispute That Was Dead and Buried  (Ellen D. Marcus, October 31, 2012)
• Dodd-Frank’s Shifting Definition of “Whistleblower”‎ (Jason M. Knott, October 25, 2012)
• Connecticut Federal Court Accepts Plaintiff’s, SEC’s Broad Reading of Dodd-Frank Whistleblower Law (Jason M. Knott, October 24, 2012)
• Gone With the Wind Turbines (Jason M. Knott, October 22, 2012)
• Suspension of Gallaudet University’s Chief Diversity Officer Raises Question: Can You Be ‎Fired For Your Political Views? Part 2 of 2‎ (William A. Schreiner, Jr., October 20, 2012)
• Suspension of Gallaudet University’s Chief Diversity Officer Raises Question: Can You Be ‎Fired For Your Political Views? Part 1 of 2‎ (William A. Schreiner, Jr., October 19, 2012)
• Can You Get Fired Not For Having An Affair At Work – But Just Because Someone Else Thinks the Boss Has “Personal Feelings” For You?‎ (William A. Schreiner, Jr., October 18, 2012)
• Marketing With Social Media: Is It Time to Retire the Concept of the "Workplace?" (P. Andrew Torrez, October 11, 2012)
• When Suits By Suits Go Political, Part II: Jim Greer vs. the Republican Party of Florida (P. Andrew Torrez, October 10, 2012)
• Does a Company Have to Advance Legal Fees for a Former Officer Who Was Criminally Charged (Twice) with Stealing the Company's Trade Secrets? (Ellen D. Marcus, October 6, 2012)
• Indemnification and Advancement: Don’t Forget The D&O Insurance (William A. Schreiner, Jr., October 4, 2012)
• Plaintiff Loses 9 of 10 Claims, But Dodd-Frank Whistleblower Claim Survives (Jason M. Knott, October 3, 2012)
• Does a Company Have to Pay for the Defense of a Former Officer Who Was Criminally Charged (Twice) with Stealing the Company’s Trade Secrets? (Ellen D. Marcus, October 1, 2012)

Suits by Suits Monthly Roundup - September 2012

In September, Suits by Suits covered a wide array of disputes across many industries throughout many jurisdictions. Topics reported on include Lilly Ledbetter Fair Pay Act  and Eaton Corporation’s quest to sue six of its engineers. We revisited the UVA failed coup, we discussed common lessons from the “If You Can’t Say Something Nice,” department, and even told a story about two cases with lessons about Title VII and the Equal Pay Act. We also discussed Merrill Lynch and mandatory employee arbitration clauses, how saving money saved an employer from age discrimination, and the statutes of limitations. 

In case you missed anything the first time around, here’s a roundup of all our posts from September: Read More ›