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© 2015 Zuckerman Spaeder LLP

Showing 104 posts in The Inbox.

The Inbox – Liar, Liar, Pants on Fire

As the United States gears up for next year’s presidential election, it’s always fun to check in with PolitiFact’s Truth-O-Meter on the days following debates or periods of political grandstanding to see who is really telling the truth and whose pants are on fire.

Since we’re all human – yes, politicians are, too – some of us admittedly engage in the occasional white lie or embellishment in the work place. While we don’t have PolitiFact to fact-check our boardroom meetings, one employee recently alleged that his CEO tried to snuff out lies using a portable lie detecting machine. Read More ›

The Inbox – Some Like It Not

Facebook is as public a forum as they come, yet it’s ironic how intimate some posts can be, as if the user is thinking out loud for everyone to hear.

Posts can be funny, political, or just plain weird, while others allow us to commiserate, empathize, or laugh out loud as we take that ultimate step of “liking” them. Sometimes liking another person’s thoughts can carry a high cost, especially if those thoughts disparage one’s employer.

Triple Play Sports Bar and Grille, the disparaged party in this example, took issue with the Facebook activity of two of its employees. Employee Vincent Spinella, a cook, “liked” this statement of a former employee:

“Maybe someone should do the owners of Triple Play a favor and buy it from them. They can't even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!”

Bartender Jillian Sanzone added the comment, “I owe too. Such an asshole.”

Triple Play’s management noticed the online behavior and discharged Spinella and Sanzone for violating company policy relating to prohibited internet activity. Read More ›

The Inbox – Trick-or-Treat?

In the corporate world, the treats offered to executives can be as sweet as stock incentives and cash bonuses. But the tricks can be as sour as individual liability for wrongdoing and salary disgorgement.

NJ Supreme Court Makes It Easier For Employers To Take Back Executive Salaries
Lately, we’ve been discussing the Yates Memo and the alarms it must be sounding in corporate board rooms across the country. In a similar vein, the New Jersey Supreme Court offered little comfort to spooked executives when it recently decided to broaden the remedies available to employers who seek disgorgement of former high-level employees’ salaries. Read More ›

The Inbox – No Fall Guys Allowed

The Justice Department issued a memo to United States attorneys nationwide that might have Wall Street executives shifting nervously in their seats. The memo signifies a new focus as it instructs both civil and criminal prosecutors to pursue individuals, not just their companies, when conducting white collar investigations. According to The New York Times, the memo is a “tacit acknowledgement” that very few executives who played a role in the housing crisis, the financial meltdown, and other corporate scandals have been punished by the Justice Department in recent years. Typically when a company is suspected of wrongdoing, the company settles with the government after supplying the authorities with the results of its own internal investigation. This paradigm has led to corporations paying record penalties, while individuals usually escape criminal prosecution. Deputy U.S. Attorney General Sally Q. Yates authored the memo and articulated the Justice Department’s new resolve. “Corporations can only commit crimes through flesh-and-blood people. It’s only fair that the people who are responsible for committing those crimes be held accountable.” To achieve this end, U.S. attorneys are directed to focus on individuals from the beginning, and will refuse “cooperation credit” to the company if they refuse to provide names and evidence against culpable employees. And don’t think about naming a fall guy to take the blame. Ms. Yates said the Justice Department wants big names in senior positions. “We’re not going to be accepting a company’s cooperation when they just offer up the vice president in charge of going to jail.” We’ll have more on the Yates Memo and its potential implications in weeks to come. Read More ›

The Inbox - The Ways of the “Wolf”

Benjamin Wey immigrated to Oklahoma from China as a teenager with scant dollars in his pocket.  He parlayed ambition and ties to Chinese businesses into a lucrative investment firm engaged in the controversial practice of reverse mergers. According to the Washington Post, this so-called “Wolf of Wall Street” hired a beautiful Swedish model, Hanna Bouveng, to serve as his assistant, and used her Swedish contacts to further his business interests while heaping monetary rewards on her to seemingly win her affections.  According to Bouveng, Wey pressured her into a sexual relationship, and when she refused his advances, he allegedly terminated her employment, waged war on her reputation through social media, stalked her, and threatened her with further ruin. Ms. Bouveng fought back in Manhattan federal court where she sued Wey for sexual harassment, retaliation and defamation. The jury returned an $18 million verdict in favor of Ms. Bouveng. While Ms. Bouveng likely feels vindicated, Wey is claiming victory on his twitter account.   Read More ›

The Inbox – An Officer and a Whistleblower

When Dodd-Frank became law in 2010, companies with corporate compliance programs viewed the whistleblower provisions warily and anticipated a potential negative impact on the success of their own internal reporting programs. According to a Law360 piece authored by Vinson & Elkins partner Amy Riella, some companies feared that employees would circumvent the internal reporting process in favor of taking information directly to the SEC to reap the financial awards. A related fear was that corporate officers would be incentivized to do the same as they learned of misconduct through compliance channels. The SEC sought to allay these concerns by creating implementation regulations that disallowed corporate officers from bringing actions when they learned of the relevant information through the role they played in the compliance process. In other words, the officer would have to learn of the fraudulent activity through his or her own “independent knowledge or independent analysis.”  There is an important exception to this rule – an exception that recently earned a former company officer a six-figure award for reporting securities fraud.  The exception states that once the company becomes aware of the issue, it has 120 days to address the alleged misconduct. If the company fails to act within the allotted time frame, the door opens for the otherwise ineligible corporate officer to use the second-hand information to become the corporate whistleblower.

Like sands through the hourglass, so are the days of testimony in the Pao/Kleiner Perkins sexism trial. This week’s installment pitted one female venture capitalist against another. Mary Meeker, the top-ranking female partner at Kleiner Perkins, testified to the virtues of Kleiner Perkins and her belief in its fair treatment of women. When gender is a fundamental issue, the testimony of one woman’s experience versus the other can prove pivotal. According to Fortune, Ms. Meeker, a well-known investor who was once dubbed “Queen of the Net,” by Barron’s Magazine, offered a perspective designed to undercut the claims of discrimination advanced by Pao in the previous weeks’ testimony. According to USA Today, Ms. Meeker testified that "Kleiner Perkins is the best place to be a woman in the business." That said, high-ranking women are a minority in the firm and their representation in the senior partnership has remained relatively constant. Kleiner Perkins has seven senior partners, two of whom are women. At the time of Ms. Pao’s termination in October 2012, three of the eleven senior partners were women.      Read More ›

The Inbox – This One’s for the Birds

Craig Watts, a chicken farmer from North Carolina, recently brought a whistleblower complaint against Perdue, claiming that the poultry seller retaliated against him for bringing certain animal welfare claims to light.  Mr. Watts owns the farm on which the chickens are raised, but, according to the Government Accountability Project, the terms and conditions of the farm operations are strictly governed by the poultry giant. The Food Integrity Campaign (a program operated by the Government Accountability Project) filed the action on behalf of Mr. Watts, defending his right to speak out about the conditions on the farm, which Watts claims run far “afowl” of Perdue’s marketing claims of “cage-free” and “humanely-raised” chickens. After publicizing the conditions on his farm, Watts was placed on a performance improvement plan and is routinely subjected to surprise audits of his farm.

A former executive at L.A.’s Fashion Institute of Design and Merchandising is seeing red over the school’s termination of her employment, which allegedly came after she demanded more diverse branding in the school’s publications. Tamar Rosenthal filed a civil rights complaint in Los Angeles Superior Court alleging that the school, seemingly interested only in shades of white, opposed her attempts to showcase student diversity on the website and explicitly advised her not to showcase gay, black or non-white students in any school publications.  According to My News LA, the complaint further alleged that Ms. Rosenthal’s supervisors created an “ultra-conservative, anti-Arab and anti-Muslim political atmosphere in the school’s front office.” Read More ›

Suits by Suits’ Greatest Hits of 2014

Who doesn’t love the year-end countdown?  We’re here to offer you one of our own – our most-read posts in 2014 about executive disputes.  The posts run the gamut from A (Alex Rodriguez) to Z, or at least to W (Walgreen).  They cover subjects from sanctified (Buddhists and the Bible) to sultry (pornographic materials found in an executive’s email).  Later this week, we’ll bring you a look at what to expect in 2015.

Without further ado, let the countdown begin!

8.            The Basics: Dodd-Frank v. Sarbanes-Oxley

This post is an oldie but a goodie.  It includes a handy PDF chart that breaks down the differences in the Dodd-Frank and Sarbanes-Oxley whistleblower laws.  Each of these laws continues to be a hot-button issue for plaintiffs and employers.

7.            When Employment Relationships Break Bad

America may have bidden adieu to Walter White and his pals on Breaking Bad, but employment relationships continue to spin off in some very unpleasant ways.  Such was the case with Stephen Marty Ward, who ended up in federal prison after he threatened his employer with disclosure of its trade secrets, as we covered in this post. Read More ›

The Inbox – Netflix and the stream scheme

Netflix, the internet media giant, sued its former vice president of IT Operations, Mike Kail, in California Superior Court, claiming that he “streamed” kickbacks from vendors and funneled them into his personal consulting company. According to the complaint, Kail—who is currently the CIO of Yahoo—exercised broad latitude in both vendor selection and payment.  Netflix alleges that he took in kickbacks about 12-15% of the $3.7 million that Netflix paid in monthly fees to two IT service providers, VistaraIT Inc. and NetEnrich Inc. According to the Wall Street Journal, one line in particular from the complaint piqued experts’ interest: “Kail was a trusted, senior-level employee, with authority to enter into appropriate contracts and approve appropriate invoices.” According to Christopher McClean, an analyst at Forrester Research Inc., this suggests Netflix allowed Kail too much freedom. McClean opined that when individuals are empowered to both choose a vendor and then approve payment, corporate malfeasance can follow.  This is particularly important in the field of information technology, where tech companies vie for business in an ever-competitive market by lavishing incentives on CIOs. Companies that do not incorporate an audit function into vendor selection and payment should consider revisiting their policies going forward.

We recently discussed the hefty $185 million judgment against AutoZone in favor of a former store manager who alleged discrimination and retaliatory discharge following her pregnancy. While this case arose in California, it appears the auto parts retailer is zoned for another similarly-themed legal showdown, this time across the country in West Virginia. In the recent complaint, the plaintiff, Cindy DeLong, claimed that she was placed on a 30-day performance improvement plan for hiring too many women in the stores she managed. She was ultimately fired before the 30 days expired. As you may recall, in the California case, plaintiff Rosario Juarez claimed AutoZone enforced a “glass ceiling” for its female employees, denying them opportunities for promotion. It seems Ms. DeLong managed to chip away at the ceiling as a district manager. But, according to Courthouse News, she now alleges that her practice of hiring women rendered her “not a good fit for the company.” Read More ›

The Inbox - What Would Woody Guthrie Think?

Putting an imperious spin on a Woody Guthrie classic, I imagine Jimmy John’s singing, “This land is my land, this land is my land, from California to the New York island.” The sandwich giant has garnered a meaty amount of press (and congressional scrutiny) lately over the breadth of its non-compete agreements with its employees. The language, as written, would essentially prevent employees, from management down to the hourly sandwich builder, from seeking employment with a competitor for up to two years following the employee’s departure. The non-compete, although not universally utilized by Jimmy John’s franchisees, further defines a competitor as any business that derives more than 10% of its revenue from sandwiches, wraps, hoagies, etc., and is within a 3 mile radius of a Jimmy John’s location.  According to HuffPost, Jimmy John’s has yet to enforce the clause against a minimum wage-earning sandwich maker or delivery truck driver, but The Atlantic’s CityLab map demonstrates the potential impact on the departing employee who might wish to make sandwiches elsewhere.

Comcast may have found an enemy for life in a former cable-subscribing customer. Comcast recently received a novel form of public scrutiny when Conal O’Rourke, a PWC accountant, accused it of causing his termination from PricewaterhouseCoopers. O’Rourke alleged in a complaint filed in California federal court that Comcast’s Controller, Lawrence Salva, contacted a PWC principal, alleging that O’Rourke invoked his position at the accounting firm to gain leverage in his ongoing arguments with Comcast over billing issues and equipment charges. According to Bloomberg, the Philadelphia office of PWC billed Comcast around $30 million for its accounting services, thereby giving Comcast leverage to potentially request the action from PWC. PWC, in its defense, claimed that O’Rourke was fired for violating company policy covering employee conduct. O’Rourke allegedly accused Comcast of questionable accounting practices during his (what I am sure were “spirited”) telephone exchanges with Comcast customer service representatives. Read More ›