Rachel F. Cotton

As readers of this blog know, corporate executives (and regular employees) are often subject to non-competes in their employment agreements, as well as other provisions designed to ensure that if they leave their job, they will not be able to work for a competitor for some period of time.  By contrast, law firms are ethically prohibited from imposing such restrictive covenants on their attorneys.  The justification for this exceptionalism is the premise that clients have the right to choose their counsel and any restrictions on a lawyer’s right to practice could impede that choice.  (Of course, why client choice is more imperative in an attorney/client relationship than other professional relationships of trust has always been a bit vague.)

• Noncompete Agreements ‎

It was the month of the Supermoon, the month Paula Deen made headlines that didn’t involve frying ‎something in butter, and the month that a bunch of lawyers up the street from our Washington headquarters, who ‎happen to wear black robes, did some significant stuff. But June also saw us write about some ‎interesting developments involving say-on-pay, American Airlines’ CEO, non-competes, arbitration, ‎and some other things—including, of course, Paula Deen:

• Paula Deen's Testimony May Also Have Some of the Ingredients for an Alter Ego Theory of Liability
  Ellen D. Marcus | June 27, 2013
• Paula Deen's Testimony May Have Some of the Ingredients for a Court to Find Deen's Companies Liable for Assault and Battery
  Ellen D. Marcus | June 26, 2013
• Simon Say-On-Pay Lawsuit Will Continue
  Jason M. Knott | June 18, 2013
• Not-So-Special Delivery: First Circuit Rejects DHL Executive’s Bonus Verdict
  Jason M. Knott | June 12, 2013
• Best Buy's Broad New Noncompete
  P. Andrew Torrez | June 11, 2013
• Arbitration Clauses, State Law and Choice of Law: What May Fly for Halliburton in Texas Does Not Fly in New Mexico
  Rachel F. Cotton | June 6, 2013
• American Airlines CEO Tom Horton One Step Closer to Free Lifetime Travel. Oh, and $20 Million
  William A. Schreiner, Jr. | June 6, 2013
• An Offer Letter is Good, But Read the Final Employment Agreement Carefully
  William A. Schreiner, Jr. | June 6, 2013
• Tenth Circuit Upholds Broad Definition of Sarbanes-Oxley Protected Activity
  Jason M. Knott | June 5, 2013
• Dispute Over American Airlines CEO’s $20 Million Severance May be Coming in for a ‎Landing
  William A. Schreiner, Jr. | June 3, 2013

We have had an ongoing conversation at Suits by Suits about the rapid proliferation of mandatory arbitration clauses in employment contracts, from the top of the company on down.  In April, we noted that one of employees’ chief strategies in trying to defeat a mandatory arbitration clause is to argue that the clause is unfair or, in legalese, “unconscionable.”  If an arbitration provision is drastically unfair to the employee, a court can strike it down under the doctrine of “unconscionability,” which permits a court to throw out a contractual provision that is so one-sided as to be “shocking to the conscience.”

The thing is, what is palatable under state law in one place may shock the conscience under state law in a different state.

• Arbitration
• Arbitration and ADR