Our state and federal courts generally have two levels of courts: trial and appellate courts. The archetypal trial court is the knock-down, drag-out venue of TV drama, where judges issue quick rulings and juries weigh the testimony and documents to make their mysterious decisions. Appellate courts are much more monastic (and thus, much less entertaining for TV’s purposes). There, learned panels of esteemed judges review cold court records and legal tomes, reviewing the parties’ arguments and applying the law in order to reach their thoughtful and detailed decisions.
Appellate courts may not even entertain every argument that a party seeks to make. For the most part, to argue in the appellate court that the trial court made a mistake, a litigant has to “preserve” the error below – meaning that the litigant must give the trial court the opportunity to rule on the issue in the first instance. The failure to preserve error has tripped up many an appeal.
The case of Jeff Gennarelli, the former regional vice president of American Bank and Trust Company (ABT), gives us yet another example of this stumbling block.
Our legal world was abuzz this week with the news that the law firm of Quinn Emmanuel will inaugurate a "work away week" in which its lawyers will be given $2,000, told to travel to anywhere in the world (so long as they have 24/7 internet access) and work from the beach or travel destination of your choice. We here at Suits by Suits aren't quite so fortunate, but we do have all the inside information about the latest disputes between employers and employees:
A few days before Alex Rodriguez filed his Complaint against Major League Baseball (and, somewhat surprisingly, the Major League Baseball Players Association, his own union), we set out the basic legal framework that will govern A-Rod’s efforts to overturn the arbitration award suspending him for the entire 2014 season. Now, I’m a baseball lawyer, so obviously I had a unique interest in this particular case, but I also continue to think that the A-Rod case is instructive in the larger context that we write about here at Suits by Suits.
Specifically, A-Rod isn’t just one of the most famous – or infamous, depending on your perspective – baseball players in the world; he’s an employee having a very well-publicized dispute with his employers. The law that governs A-Rod’s attempts to vacate Fredric Horowitz’s arbitration award is the exact same law that would apply to virtually any private sector employee whose employment-related dispute is governed by arbitration; namely, the Federal Arbitration Act, 9 U.S.C. § 1 et seq.
So, what does A-Rod’s complaint have to teach us as employers or employees? One thing it can do is to emphasize the importance of reading a complaint backwards. Read on to discover why.
Here at Suits by Suits Polar Vortex Centre, the debate rages even as the hours tick down to kickoff: who should we root for in Sunday’s big game, the Denver Broncos or the Seattle Seahawks? Both teams’ home bases, from our point of view, have much to commend them in terms of the executive employment issues we love so much. Seattle is home to Robinson Cano’s almost-quarter-billion-dollar deal with the Seattle Mariners – maybe not C-suite, but a great employment arrangement in and of itself. Colorado, on the other hand, has given us some toothy stories over the years: from kidnapping to wrongful termination related to speech and a neat case on national origin discrimination.
But since our beloved Washington football club was essentially eliminated from contention in about, er, October, none of it has really mattered much to us.
In any event, before you dig into the chili and chicken wings (or not), here are some of the week’s most interesting happenings that concern executive-employer relationships:
In Part 1 of this post, we looked at a heated executive employment dispute that is being tried in Dallas. The case involves a former hedge fund executive, sued by his former employer for allegedly not returning 59,000 confidential documents when he resigned and for trying to poach the firm’s clients. The Dallas Morning News has full coverage here and here.
The trial is forcing both sides to air things about the other – and themselves – that they would likely not want raised in a public forum. In Part 1, for example, we noted how Highland executives testified that a compensation program had to be stopped after the executive, Daugherty, left the firm, because (as the Dallas Morning News put it) Daugherty “engaged in conflict of interest transactions” for the compensation program. Surely Highland would rather not have raised that issue publicly. But that’s what aggressive litigation sometimes forces parties to have to do to win their case – which is the cautionary tale of the Highland v. Daugherty trial.
Many of the executive employment disputes we write about focus on one or two key issues – the enforcement of a non-compete clause in an employment agreement, for instance, or the odd ways a severance package can work.
A case being heard in Dallas, however, brings together a whole set of executive-employment-related problems in one place: alleged defamation, corporate confidential information allegedly not returned by a departing executive in breach of a written employment agreement, compensation demands and agreements that were never put in writing, and an executive’s desire to work part-time from home. Throw in alleged self-dealing and conflict of interest allegations against the executive – who ran a specialty investment team at the employer, a large hedge fund – and you have the sort of intense, angry dispute that used to be featured on a soap opera set in Dallas that captivated the nation in the 1980s.
Without, of course, the famous shower scene.
You may have been left with the impression from our post on Tuesday that Family Dollar Stores is getting a raw deal because the company has to pay former COO Mike Bloom $4.8 million after letting him go for what it saw as poor performance. As we explained, this may be counterintuitive, but it’s consistent with the severance provisions of Bloom’s employment agreement. Besides complying with its contractual obligations, however, the company is getting something in return for the severance: a release from Bloom.
Bloom’s employment agreement, which is typical of executive employment agreements, provides that, upon his termination, the Company’s obligation to pay him severance is conditioned on Bloom "deliver[ing] to the Company a fully executed release agreement . . . which shall fully and irrevocably release and discharge the Company . . . from any and all claims . . . ."
This provision of Bloom’s employment agreement illustrates a best practice for companies when they are contemplating severance provisions in employment agreements at the time of hiring, or even standalone severance agreements that are negotiated at the end of employment: don’t agree to pay severance without getting a release from the executive in return. That way, while it may be painful to write that severance check, at least the company can know that it should not have any future trouble from the executive, the break is clean and the company and executive can move on to whatever’s next. For executives’ part, to the extent that they have the bargaining leverage, they should also insist that any release be mutual – that is, that, just as the executive releases the company from any claims, the company releases the executive from any claims. That way, the executive will also be able to move on without having to look back.
Last week, Yahoo’s Marissa Mayer fired COO Henrique de Castro, reportedly because she was not satisfied with his job performance. By some estimates, de Castro will receive severance exceeding $60 million after only 15 months on the job. Also last week, Family Dollar Stores let go COO Mike Bloom because the company was not happy with his performance, and apparently was not moved by Bloom’s Undercover Boss gambit. Bloom is set to receive $4.8 million in severance after slightly more than two years on the job.
What gives? How is it that these former executives are receiving large severance payments after they were asked to leave for poor performance on the job? The definition of "cause" in their severance agreements is what gives – a topic we explored recently here at Suits by Suits in connection with the dispute over former iGate CEO Phaneesh Murthy’s termination. In the iGate case, the company contends that it terminated Murthy for cause and thus owes him no severance. Murthy’s employment agreement provides that he does not get severance in the event of a "with cause" termination, and that "cause" includes violating company policy. The company contends that Murthy’s failure to report his romantic relationship with an employee to the Board was "cause" for his termination because it violated company policy.
In the Yahoo and Family Dollar Store cases, assuming that de Castro and Bloom were let got for poor performance, unless poor performance is "cause" under their employment agreements, they will reap the severance benefits provided for in their agreements for "without cause" terminations.
No, this headline is not a pun about the closed on-ramps to the George Washington Bridge. Rather, it’s meant to acknowledge that as the New Year gets into full swing, folks are starting to ramp up their analysis of ongoing issues in disputes that involve executives and their employers. We’ve seen a number of interesting stories and summaries cross our desk:
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.
John J. Connolly
Partner
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Andrew N. Goldfarb
Partner
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Sara Alpert Lawson
Partner
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Nicholas M. DiCarlo
Associate
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