Marcus, Ellen

• A federal trial court in Minnesota has dismissed an antitrust action filed by former football players against the NFL.  The players alleged that the NFL is monopolizing the market of their likenesses by using historical game footage featuring the players in promotional videos.  The court distinguished the Supreme Court’s 2010 decision in American Needle, Inc. v. NFL,saying that the former football players failed to allege concerted action between the NFL and the teams that is illegal under the Sherman Act.  The court suggested that, even though the antitrust action would not go forward, the players may have claims against the NFL for violating their right of publicity.   

• The Inbox

In my last post, I made the case that new social media haven’t changed the issues that come up in legal disputes between companies and high-ranking employees.  But social media can add some new twists.  For instance, are a company’s Twitter followers the equivalent of a confidential client list, such that you would be “misappropriating” a company “trade secret” if you left and took the list with you? 

• Confidentiality
• Social Media
• Trade Secrets

Twitter and other social media may be transforming our world, but they haven’t changed laws and company policies against disclosing sensitive company information.  Take the recent firing – reported in The Inbox – by women’s clothing retailer Francesca’s Holdings Corp. of its CFO, Gene Morphis.

• Confidentiality
• Social Media
• Trade Secrets

In part two of our series on suits brought by Hollywood actresses against TV networks, we feature a case brought by Claudia DiFolco, actress and host of the one-time reality series My Big Fat Obnoxious Fiance, against her former employer MSNBC.  Whether Hollywood actresses will continue to bring cases that perfectly illustrate black-letter legal concepts like repudiation remains to be seen. 

DiFolco v. MSNBC – and the decisions that it generated in the U.S. District Court for the Southern District of New York and U.S. Court of Appeals for the Second Circuit in particular – serves as a reminder to companies and executives alike that even seemingly airtight employment contracts can be for naught if the parties “repudiate” them by future conduct, making their provisions unenforceable.

• Breach of Contract
• Wrongful Termination

Today we are launching Suits by Suits, a legal blog about disputes between companies and their executives. The four of us are colleagues and lawyers who sometimes wear suits and who sometimes represent clients who sometimes wear suits. We also share an interest in how conflicts between companies and high-ranking employees can play out in the legal arena.

So, for example, when we see a headline about Desperate Housewives star Nicollette Sheridan’s lawsuit against ABC for wrongful termination – which, by the way, recently ended in a mistrial but has been set for a new trial to begin in September – we read the story. Then we dig deeper because, to us, this case is not just about a Hollywood celebrity, it is a suit by suit.

We want to know whether the jury was persuaded by Ms. Sheridan’s theory that her character was killed off and she was written off the show because she complained about being assaulted on the set by the show’s creator Marc Cherry.

We want to know whether the judge accepted Ms. Sheridan’s legal theory that being fired for complaining about an assault violates California public policy that employees have a right to a workplace free of violence and threats of violence.

We want to know whether ABC was able to prove that its plans to kill off Ms. Sheridan’s character were hatched long before Ms. Sheridan complained about Mr. Cherry.

We want to know whether there are any really devastating e-mails – to either side – and whether the jury is going to get to see them, or the judge will find them inadmissible.

We want to know whether any D&O insurance is available to pay Mr. Cherry’s legal fees in the case. Okay, maybe Bill is the only one who wants to know that.

Are we the only ones?

Ellen, Jason, Andrew and Bill

• D&O
• Insurance
• Wrongful Termination