John J. Connolly

In October 2019, the Maryland State Bar Association’s Committee on Ethics published an opinion discussing a Maryland attorney’s duty to report the unauthorized practice of law by a non-Maryland attorney. A footnote to the opinion states:

It is worth noting that other jurisdictions have self-reporting requirements for licensed attorneys who are disciplined for violations of rules of professional conduct in other jurisdictions. See, Rule 8.3 of the Virginia Rules of Professional Conduct. Maryland does not impose a similar obligation on its attorneys.

• Legal Ethics

Should executives include an arbitration clause in their employment contracts? There’s no uniform answer, of course. Arbitration proponents cite its speed, cost, privacy, informality, minimal discovery, and limited appellate rights. Opponents cite pretty much the same list. Volumes have been written about whether arbitration is a better form of dispute resolution than litigation, and we can’t resolve that question here.

But thanks to relatively new state laws requiring public disclosure of certain arbitration information, we can look at the question statistically. Even better, people who understand statistics can look at the question statistically, and we can report what they say.

We started by looking at the data set disclosed by the American Arbitration Association (AAA) concerning employment-based arbitrations. (A detailed explanation of the data, and the data itself, is available on this page of the AAA’s website.) One field of the data reports the employee’s salary in four categories: $250,000 or greater; $100,000 to $250,000; $0 to $100,000; and, regrettably, “not provided by parties.” Over the past five years, the AAA database reports about 7700 employment arbitrations (not necessarily separate “cases”; some cases have multiple records, usually reflecting multiple respondents), but only 2912 of these included data for the employee’s salary range. The following table shows the breakout of records by salary range:

• Arbitration and ADR
• Civil Litigation

An earlier generation of Baltimore lawyers used to say that the outcome of a case should not depend on which side of Calvert Street it was filed. This made sense when the federal court was on the east side of Calvert and the state court on the west. The statement was a colloquial expression of the Erie doctrine, which requires federal courts to apply state law when federal jurisdiction depends on diversity of the parties’ citizenship.

The Erie doctrine requires federal judges to figure out how state judges would rule in certain matters. You might imagine a federal judge strolling across Calvert Street to ask for some advice. But that’s not how state and federal judges speak to one another (and not just because the federal court long ago moved to a dismal building on Lombard Street).

Instead, federal judges read the published judicial decisions from the state whose law applies. Under Erie, federal judges are required to follow the holding of decisions from the state’s highest court. They are not required to follow “dicta” – statements in a judicial opinion that are not necessary to the outcome. In many cases, the state’s highest court has not ruled on the particular legal question at issue. In that event, the federal court must predict how the state court would rule based on other sources of state law. One of those sources is “considered dicta” (or well-reasoned dicta) from the decisions of the state’s highest court.

• Breach of Contract
• Civil Litigation
• Wage and Hour‎

Most law students spend several weeks in a first-year contracts class studying the concept of consideration. Consideration, in essence, is what a contracting party receives in exchange for promising to do something. A promise without consideration is not an enforceable contract. If A promises to wash B’s car next Tuesday and fails to do so, B cannot sue A on Wednesday, because A’s promise lacked consideration. But if A promises to wash B’s car and B promises to give A $20, or $1, or a glass of water, the promise is enforceable and B can sue if A fails to perform. Courts generally do not examine the adequacy of consideration, only its existence.

Because consideration can be minimal, many lawyers forget about it after that first year of law school. But it remains a necessary element of most contracts, and it recently arose in a peculiar way in a Connecticut case involving a dispute over an employment contract. See Thoma v. Oxford Performance Materials, Inc., 153 Conn. App. 50 (2014).

The plaintiff in the case, Lynne Thoma, was an employee of a manufacturing company. During her employment the company obtained new financing, and the investor insisted that Ms. Thoma enter into an employment agreement. This “first agreement” gave Ms. Thoma a fixed salary plus benefits for a 24-month period with automatic 12-month renewals. The company could fire her without cause on 60 days’ notice, but it would then be obligated to pay her salary for the remainder of the term plus six months. The first agreement also included a noncompete provision for the period of Ms. Thoma’s employment plus six months thereafter.

The company almost immediately decided it did not like certain terms of the first agreement and it required Ms. Thoma to enter a second agreement, which by its terms stated that it superseded any prior agreements. The second agreement did not discuss salary or severance, but it expressly stated that Ms. Thoma was an at-will employee. It also included a noncompete provision with apparently inconsistent terms: one section stated that she would not compete “during the period of her employment” and the other said that if she was terminated she would “continue to comply” with the noncompete provision.

The company fired Ms. Thoma about 16 months after the parties executed these agreements. Ms. Thoma sued, claiming that the company breached the first agreement by firing her without notice before her term ended and by failing to pay severance. The company claimed that the second agreement allowed it to fire her without notice at any time and did not require severance payments. But the trial court found, and the appellate court agreed, that the second agreement was not enforceable because it lacked consideration.

• Breach of Contract
• Noncompete Agreements ‎
• Severance Agreements

October was a busy month for us here at Suits By Suits – and, we imagine, for many of you as well.  The baseball playoffs shut out our hometown Orioles and Nationals (although our sister office in Tampa got to cheer on, however briefly, the playoff-bound Rays), and the gods of the pigskin haven’t been much kinder to the Ravens or Redskins so far.  But despite the fickle fortunes of professional sports, we still managed to crank out some pretty interesting content this month; if you missed any of our prior articles, here’s a summary and link to each one:

• Unpacking the Business Arguments For and Against Noncompetes
  October 30, 2013 | P. Andrew Torrez
• Federal Court Rules That Dodd-Frank Whistleblower ‎Protection doesn’t Apply Internationally
  October 24, 2013 | Jason M. Knott
• I’ve got a secret. Or do I?‎
  October 22, 2013 | William A. Schreiner, Jr.
• Federal Judge Upholds Jurisdiction Based on Employer’s Computer Fraud and Abuse Act (CFAA) Claim against Former Employee
  October 16, 2013 | Jason M. Knott
• One Danger of Talking to the Press about a Pending Lawsuit Is Being Sued for Defamation (See Jacobs v. Las Vegas Sands)
  October 14, 2013 | Ellen D. Marcus
• Court of Appeals and Federal Reserve Put the Kibosh on Troubled Bank’s Settlement with Exec
  October 10, 2013 | Jason M. Knott
• Indiana Appellate Court Sends Employer to Trial for Enforcing Non-‎Compete
  October 8, 2013 | Jason M. Knott
• Sleeping With the Enemy Executive
  October 7, 2013 | John J. Connolly
• Is An Arbitration Agreement Valid If The Designated Arbitrator Is Unavailable?‎
  October 2, 2013 | William A. Schreiner, Jr.

A Baltimore police officer claimed she was fired because she got married.  The police department agreed.  The problem was that the officer married Carlito Cabana, an incarcerated murderer and the “supreme commander” of a prison gang called Dead Man, Inc.  The question presented was whether the police department’s action violated the officer’s “constitutional right to marry and to engage in intimate association.”  The Maryland courts didn’t think much of that claim, see Cross v. Baltimore City Police Dep’t, and it does seem as though the police department had a point. 

But what about Mr. Cabana?  Surely Cabana’s “employer,” nominally a private corporation, could not have been pleased with his choice of spouse, either.  (Let’s ignore Dead Man’s failure to register to do business in Maryland.)  Could the Dead Man board have fired Cabana for marrying a cop?  Could a legitimate private employer (like the Coca-Cola Co.) have fired an executive for marrying an employee of its mortal adversary (like PepsiCo)? 

• Discrimination
• Wrongful Termination

When a dispute between executive and company reaches the point of litigation, usually the executive’s title begins with “former.”  But not always.  Sometimes litigation proceeds while the executive remains an officer or director of the company.  How does the executive’s fiduciary duty to the company affect her litigation strategy and conduct?

• Breach of Contract
• Fiduciary Duties