As the regulatory and business environments in which our clients operate grow increasingly complex, we identify and offer perspectives on significant legal developments affecting businesses, organizations, and individuals. Each post aims to address timely issues and trends by evaluating impactful decisions, sharing observations of key enforcement changes, or distilling best practices drawn from experience. InsightZS also features personal interest pieces about the impact of our legal work in our communities and about associate life at Zuckerman Spaeder.
Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.
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A Funny Thing Happened to the Forum Selection Clause
When an employee sues an employer, the forum selection clauses in her employment agreement can affect where the claims can be litigated—but only if those clauses are enforced.
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Fired for Taking the Fifth: Famous Firings in History
The Department of Justice’s recent Yates Memo creates a new emphasis on individual accountability for corporate or entity wrongdoing. It also enhances the risk to corporate employees that they will need to choose between cooperating with an employer’s investigation—and potentially incriminating themselves—or asserting their Fifth Amendment right to remain silent and risking their jobs.
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A Fifth Amendment Right to Not Talk to Your Employer?
An employee who is accused of participating in corporate wrongdoing can face potentially life-changing choices almost immediately. When a company learns of alleged wrongdoing, it is likely to start an internal investigation into the misconduct. As part of the investigation, attorneys or other investigators will seek to interview those with relevant knowledge, including employees who are allegedly involved in the wrongdoing.
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Employees Who Don’t Cooperate With Company Investigations Can Be Terminated for Cause
When a company learns that its employees may have done something unlawful, it should try to get the facts and figure out whether wrongdoing actually occurred. One way to do this is to conduct an internal investigation, in which attorneys or other investigators collect documents and interview employees to gather information about what happened.
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Active Shooter Drill Backfires on Employer
After a spate of horrific shootings at schools and businesses across the country, employers started conducting unannounced “active shooter” drills to train employees how to react if a murderous gunman shows up at their workplace. Unsurprisingly, some of these unannounced drills have gone awry.
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What Employers and Employees Need to Know About the Defend Trade Secrets Act
Owners of stolen trade secrets now have another weapon in their arsenal.
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“Some But Not All”: Delaware Court Awards Advancement to Former Officer, But Only for Part of a Case
When a former officer or director of a company must defend against legal claims, advancement of legal fees by the company can be critical to a successful defense. The Delaware Chancery Court frequently addresses issues related to advancement of fees for former officers and directors. For example—as we discussed in this post—that court recently resolved a claim by former Vice President Al Gore and a colleague for advancement of legal fees, ruling that they were entitled to advancement from the company that bought their employer (Current Media) and assumed Current Media’s indemnification and advancement obligations, even though they had never worked for the purchaser
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Employee’s Remote Storage of Employer Documents Results in Post-Termination Trouble
What happens when an employer tries to change the basis for terminating an employee?
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The Clock is Ticking: Supreme Court Rules on Statute of Limitations for Constructive Discharge
Last week, the U.S. Supreme Court issued a plaintiff-friendly decision resolving disagreements over the question of when a constructive discharge claim accrues. The lower courts didn’t agree on when the clock should start ticking on claims by employees that they were forced to quit, creating uncertainty for plaintiffs who faced the possibility that their claims would be barred by the statute of limitations if they didn’t sue soon enough.
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Yates Update: Deputy Attorney General Remarks on Reaction to Memo
When the Department of Justice announces new guidance for individual and corporate prosecutions, the white collar bar takes notice.
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After a Merger, Protecting Rights to Advancement and Indemnification
For both companies and individual officers and directors, it’s critically important to know the protections that are available to corporate leadership before a company runs into trouble.
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Employer’s Failure to Sign Agreement Torpedoes Its Motion to Compel Arbitration
A fundamental principle of contract law is that a written contract is an agreement in writing that serves as proof of the parties’ obligations. What happens, however, when the parties forget some of the niceties of formalizing a written contract?
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Kagan’s Luis Dissent Suggests Way for Defendants to Strike Back
In our last post, we discussed the recent decision Luis v. United States, in which the Supreme Court held that innocent assets are out of the government’s reach prior to trial. Justice Elena Kagan’s short but notable dissent in Luis addressed the issue of whether the government should be able to reach a defendant’s assets at all, allegedly “tainted” or not, prior to conviction.
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Hands Off! Supreme Court Rules Defendants May Use Innocent Assets to Hire Lawyers
Every defendant is presumed innocent until proven guilty in a court of law. And the Sixth Amendment to the Constitution provides a defendant has the right to counsel of his or her own choosing. These rights are foundational to our criminal justice system.
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Five Things You Should Know about the EEOC’s Proposed Changes to the Employer Information Report
Employers with an eye to the regulatory horizon are aware that the Equal Employment Opportunity Commission (EEOC) has proposed expanding its annual Employer Information Report (EEO-1) to include data on employees’ pay.
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Sleep On It: Employee’s Quick Response Hurts Termination Claim
When employees and employers are approaching the end of an employment relationship, they should consider their existing rights and how their conduct may impact those rights. A recent decision from the Minnesota Court of Appeals demonstrates how one hasty email can change everything.
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How Does a Court Decide Whether an Employee’s Whistleblowing Caused Termination?
In our last post, we discussed the case of Wiest v. Tyco, in which the Third Circuit held that an employer’s investigation of unrelated wrongdoing by an employee insulated it against the employee’s Sarbanes-Oxley whistleblower retaliation claim. Now, we tackle another piece of the Wiest decision: the court’s holding that Wiest’s protected activity did not contribute to the adverse action against him.
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Investigation Insulates Employer Against Sarbanes-Oxley Retaliation Claim
An employee who has blown the whistle on wrongdoing is not immune from discipline or termination simply because she has engaged in protected activity.
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Can Government Regulation Make It Impossible to Pay Severance?
When an executive has an employment agreement and his company doesn’t pay, the company might offer a number of excuses based on contract law. One of these contractual defenses is called “impossibility of performance.” Under this defense, when a party enters into a contract and circumstances later change such that the party can’t perform it, the party can be excused from performing.
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Top Issues in Executive Disputes to Watch in 2016
We’ve counted down our top posts from 2015, from American Apparel to Dr. Robert Schuller. Now, we look at the issues in executive disputes that are likely to draw the most attention in 2016.