• When the Department of Justice announces new guidance for individual and corporate prosecutions, the white collar bar takes notice.

    Thus, in September 2015, when the Department of Justice released a memorandum titled “Individual Accountability for Corporate Wrongdoing”—now colloquially known as “the Yates Memo” because it was authored by Deputy Attorney General Sally Yates—almost everyone had something to say about it.

    The Yates Memo seeks to increase the emphasis on individual accountability for corporate wrongdoing from the outset of a government investigation. It sets forth six steps to strengthen pursuit of individuals by criminal and civil prosecutors, including requiring corporations to lay out all relevant facts related to individual misconduct in order to obtain cooperation credit.

    Read more
  • For both companies and individual officers and directors, it’s critically important to know the protections that are available to corporate leadership before a company runs into trouble.

    The Delaware Chancery Court’s recent decision in Hyatt v. Al Jazeera America Holdings II, LLC, presents an unusual twist on the typical advancement litigation. It highlights how proper planning can ensure the intended protections are available when they are needed.

    Typically, advancement cases follow a familiar pattern: a company promises officers and directors (and sometimes employees) that in the event of legal proceedings related to their duties at work, they will be protected by advancement of legal costs and indemnification.

    Read more
  • As employees of the New York-based Chobani yogurt plant filed into work last Tuesday, they were met with sealed, white envelopes containing a sweet financial surprise. 

    Little did they know, the owner and CEO, Hamdi Ulukaya, had been working with the human resources consulting firm, Mercer, to hatch a plan to transfer 10 percent of his stock in the company to roughly 2,000 full-time employees.

    Read more
  • A fundamental principle of contract law is that a written contract is an agreement in writing that serves as proof of the parties’ obligations. What happens, however, when the parties forget some of the niceties of formalizing a written contract?

    For one answer, consider the recent decision in the case of Shank v. Fiserv, Inc., in which the Eastern District of Pennsylvania addressed Fiserv’s motion to dismiss and compel arbitration at the outset of the case.

    Read more
  • In our last post, we discussed the recent decision Luis v. United States, in which the Supreme Court held that innocent assets are out of the government’s reach prior to trial. Justice Elena Kagan’s short but notable dissent in Luis addressed the issue of whether the government should be able to reach a defendant’s assets at all, allegedly “tainted” or not, prior to conviction.

    Read more
  • Every defendant is presumed innocent until proven guilty in a court of law. And the Sixth Amendment to the Constitution provides a defendant has the right to counsel of his or her own choosing. These rights are foundational to our criminal justice system.

    However, prior to the Supreme Court’s decision yesterday in Luis v. United States, the government was able to undermine these basic rights. In cases involving conspiracy, healthcare fraud, and banking fraud, federal statutes allowed the government to seek a pretrial restraining order preventing defendants from using their innocently obtained assets to retain counsel.

    Read more
  • Employers with an eye to the regulatory horizon are aware that the Equal Employment Opportunity Commission (EEOC) has proposed expanding its annual Employer Information Report (EEO-1) to include data on employees’ pay.

    The existing EEO-1 requires private employers with 100 or more employees to report the number of employees within 10 job categories by seven race and ethnicity categories, as well as by sex.

    The proposed changes will further refine reporting to include employee counts as well as total hours worked by 12 pay bands.

    Read more
  • The U.S. Equal Employment Opportunity Commission scored a victory last week against PMT Corp., a Minnesota-based medical device and equipment manufacturer. According to the commission’s complaint filed nearly two years ago, PMT Corp. engaged in systematic discriminatory hiring practices by refusing to hire women and individuals over the age of 40 in violation of Title VII and the Age Discrimination in Employment Act. According to Law 360, PMT agreed to settle the suit for $1.02 million payable to a class of applicants and a former PMT Human Resources professional who brought the company’s hiring practices to the EEOC’s attention.

    Read more
  • When employees and employers are approaching the end of an employment relationship, they should consider their existing rights and how their conduct may impact those rights. A recent decision from the Minnesota Court of Appeals demonstrates how one hasty email can change everything.

    Beginning on January 1, 2010, LifeSpan of Minnesota, Inc. employed the plaintiff in the case, Mark Sharockman, as its chief financial officer and executive vice president. Mr. Sharockman’s three-year employment agreement with LifeSpan provided, among other things, that he would receive annual pay increases that were at least equal to the average pay increases granted to the other two executive officers.

    Read more
  • In our last post, we discussed the case of Wiest v. Tyco, in which the Third Circuit held that an employer’s investigation of unrelated wrongdoing by an employee insulated it against the employee’s Sarbanes-Oxley whistleblower retaliation claim. Now, we tackle another piece of the Wiest decision: the court’s holding that Wiest’s protected activity did not contribute to the adverse action against him.

    To establish a Sarbanes-Oxley claim, an employee must show that there was a causal connection between his or her whistleblowing and an adverse employment action. If the employee can’t show that link, then he or she can’t prevail. In the Wiest case, the court assumed that Wiest did in fact engage in protected whistleblowing activity. But it held that Wiest didn’t have evidence to show that the whistleblowing caused the employer to take action against him.

    Read more

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.

Contributing Editors
Thumbnail

John J. Connolly
Partner
Email | +1 410.949.1149


Thumbnail

Andrew N. Goldfarb
Partner
Email | +1 202.778.1822


Thumbnail

Sara Alpert Lawson
Counsel
Email | +1 813.321.8204


Thumbnail

Nicholas M. DiCarlo
Associate
Email | +1 202.778.1835


Subscribe
Subscribe to receive blog updates via email
Archives