The Inbox: October 12, 2012

| Andrew P. Torrez

It's been a busy week in suits by suits:

  • Good news, everyone!  With the NFL season in full swing -- and with an estimated 25-30 million of us playing fantasy football -- you can breathe a sigh of relief knowing that the New Hampshire Attorney General has declined to prosecute a former deputy county attorney who used his work email to talk about fantasy football.  A member of Americans for Progress had alleged that the emails constituted illegal gambling.  Now, who wants to trade me for a starting running back?
  • Multiple sources have discussed the potential conflicts of interest alleged against David Kotz, the former Inspector General of the SEC who, among other things, investigated Bernie Madoff's Ponzi scheme.  The highest profile allegation is that Kotz had an "inappropriate relationship" -- the Huffington Post calls the e-mail exchange "flirtatious" -- with an SEC employee while Kotz's office was conducting oversight on a program on which that employee worked.
  • In continuing developments regarding the intersection of social media and employment law, the National Labor Relations Board ruled on Tuesday that work-related Facebook updates are not protected speech under federal labor law.  The NLRB upheld a BMW dealership's decision to terminate a car salesman for posting a picture of a car accident (with the caption "Oops") to his Facebook account.  (The NLRB's press release can be found here.)
  • Relatedly, a Texas appeals court upheld the firing of a paramedic who had frustratedly posted to her personal Facebook page that she "wanted to slap" an uncooperative patient.  The paramedic had argued that her employer invaded her privacy and tortiously intruded upon her seclusion; the trial court granted summary judgment for lack of evidence and the appellate court affirmed.
  • Following a slightly more prudent course than the Republican Party of Florida, the Town Council for the city of Flower Mound, Texas voted to pay former Town Manager Harlan Jefferson the 22 months of severance pay -- approximately $350,000 -- called for in his contract after voting to dismiss Jefferson as Town Manager.
  • Suits by (fake) suits?  Sony sued its former pitchman, actor Jerry Lambert, who appeared in a series of commercials on behalf of Sony's Playstation 3 console as fake executive Kevin Butler (with titles such as "Vice President of Add More Awesome," "Vice President of Epic Gaming for All," "Vice President of Bringin' It in 3D," and nearly four dozen others).  Lambert later appeared in a Bridgestone tires ad playing a Nintendo Wii, prompting Sony to sue, alleging that Lambert was unfairly using its "Kevin Butler" intellectual property.  Those of us old enough to remember Larry "Bud" Melman's appearances on the old David Letterman show may recall that Letterman faced a similar issue when he tried to move that character (played by actor Calvert DeForest) to his new show on CBS.  (Letterman's workaround was to refer to DeForest as "That Guy" and "Kenny the Gardener.")
  • Oregon state labor officials have ordered Dr. Andrew W. Engel, D.D.S., to pay his dental assistant nearly $350,000 after threatening to fire her if she did not attend a Scientology-related training session.