Friday, August 25, 2006
NIXON PEABODY LABOR & EMPLOYMENT TEAM SECURE GROUNDBREAKING AGE DISCRIMINATION DECISION
Congratulations to Maggie Clemens and John Higgins for their precedent-setting legal work in Meacham v. KAPL, Inc. Following remand by the U.S. Supreme Court, Maggie and John convinced the Second Circuit Court of Appeals to overturn a 2000 jury verdict that had awarded nearly $6 million in damages to a class of employees laid-off in 1995 from Knolls Atomic Power Laboratory (KAPL). The employees claimed their layoffs were the result of age discrimination.
Maggie and John represented KAPL and its parent company, Lockheed Martin, and John Freeh, former KAPL General Manager, before the Court of Appeals and the Supreme Court. John also served as lead counsel during the trial. The groundbreaking decision by the Court dismisses adverse impact age discrimination claims, and provides a roadmap for employers in New York and elsewhere going through or considering workforce reductions.
Thursday, August 17, 2006
BIG-FIRM ASSOCIATE PAY UP $10K IN 2006
First Salary Increase for New Lawyers Since 2000
Leigh Jones/Staff reporter
National Law Journal, p. 10
August 7, 2006
National Association for Law Placement (NALP) says so. The going rate at firms of 500 and more attorneys was $135K in 2006 (up $10K from 2005) because of:
a. increasing work loads; and
b. declining numbers of law school applicants; and
c. increasing attrition.
But increased salaries could only worsen the problem, according to Altman Weil's Ward Bower: the raise causes salary compression in more senior classes and thus more incentive for newbies to leave when they reach compressed levels.
And here's the evidence that Bower's concern is justified: Attrition jumped too from 60% at the 5 year level in 2000 to 78% in 2006. In other words six years ago 40% (two in five) of the freshman class would have survived to the 5th year but today only 22% (one in five) -- that's half the number of survivors as in 2000 and it has to cost money.
Wednesday, August 16, 2006
RECENT GOODELL, DEVRIES, LEECH & DANN VICTORY WILL BENEFIT LOCAL GOVERNMENTS THROUGHOUT STATE
On July 20, 2006, Goodell, DeVries, Leech & Dann, LLP obtained summary judgment on behalf of Caroline County, Maryland in an employment matter that has been closely followed by counties across the state. Attorneys Linda Woolf and Nichole Nesbitt represented Caroline County in Runnels, et al. v. Caroline County, et al. (Worcester County Cir. Ct. Case No. 23-C-04-1174), a case brought by two former employees of the Caroline County State's Attorney's Office. The employees, who held administrative positions in the office, argued that their First Amendment rights to free speech were violated when the newly elected State's Attorney terminated their employment, allegedly because the plaintiffs supported his opponent in the race for election. They also contended that they were required to work overtime for which they were not properly compensated.
In asserting their claims against both the State of Maryland and Caroline County, the plaintiffs argued that the two entities were "joint employers" for the purposes of the wrongful termination and overtime claims. They also contended that, while the incoming State's Attorney possessed the final authority to terminate their employment, the County's acquiescence in this decision constituted a "conspiracy" for which it could be held directly liable. Ms. Woolf and Ms. Nesbitt argued on summary judgment that the County was not a joint employer of the plaintiffs because it did not possess the power to hire and fire them, did not supervise their performance, did not set their work schedules, and did not require them to work overtime. They also argued that the County did not "conspire" to deprive them of any rights, because the decision rested with the State's Attorney, a State-elected official.
The Honorable Theodore R. Eschenburg of the Worcester County Circuit Court agreed with the County and entered summary judgment on the County's behalf as to all counts. He held in his memorandum opinion that Caroline County is not a "joint employer" of the administrative staff of the State's Attorney's Office and did not conspire with the incoming State's Attorney to terminate the plaintiffs' employment. Because each county in the State of Maryland is required to fund a State's Attorney's Office and pay the wages of its staff, many questions have arisen as to the extent of the employment relationship between a county, the state's attorney for that county, and the employees of the state's attorney's office. Until now, there was very little guidance on this issue. The court's opinion in Runnels is favorable to counties across the state and may help to make the issues more clear.
NIXON PEABODY'S BIG WIN IN GARDEN CITY
Congratulations are in order for Garden City's Joe Ortego and Glen Vogel (and NP alum Donald MacDougall) for a hard fought victory in one of the longest trials in the office's history. Joe, Glen, and Don represented plaintiff Laura Candela over a nearly three month period last fall at a bench trial in the commercial part of Nassau County Supreme Court.
The case involved claims of breach of an executive employment contract, breach of a shareholders agreement, constructive discharge, fraud and declaratory relief in the form of voiding a restrictive covenant contained in both the employment and shareholders agreements. The defendants counsel -- often referred to by the judge as "the back bench" consisted of eight lawyers from three separate large reputable Long Island law firms. Joe and Glen first had to fend off 5 separate motions for summary judgment over an accelerated briefing schedule during the 2 months prior to trial (August and September) and then egaged in an uphill battle over the next three months of trial dealing with a plethora of evidentiary hurdles -- including the Dead Man's Statute and the authenticity/admissibility of handwritten documents by the deceased former president of the company.
To add some intrigue, the case also had some underlying issues/allegations involving a pilfered safe, corporate tax fraud, cheating customers of over a half a million dollars, and an estate worth in excess of $30 million.
After a massive post trial brief and additional motion, Joe and Glen achieved a massive victory for the client. In a 70 page opinion Judge Warshawsky carefully crafted what is hopefully an appellant-proof opinion awarding in excess of $ 4.5 million in damages to our client. With interest at 9%, the judgment may well be in excess of $8 million. The opinion also contained some interesting asides from the judge regarding certain members of "the back bench."
Wednesday, August 09, 2006
SUMMARY JUDGMENT UPHELD IN FAVOR OF NIXON PEABODY CLIENT HOWARD JOHNSON FRANCHISE SYSTEMS, INC.
The First Circuit upholded summary judgment for Arthur Pressman and Gordon Jones of Nixon Peabody's Boston office in a $25 M Puerto Rico Franchise Case.
On August 1, 2006, in a per curiam opinion, the First Circuit upheld summary judgment in favor of their client Howard Johnson Franchise Systems, Inc. in an action brought by its former San Juan franchisee Hotel Associates, Inc. The action involved a claim that Howard Johnson had violated an area of protection contained in Hotel Associates' franchise agreement by granting franchise rights to another hotel 1/4 mile from the plaintiff's hotel. Plaintiff's expert had opined that plaintiff's lost profits over the term of the franchise were $25M. The trial court had ruled that the franchise agreement had terminated ex proprio vigore upon plaintiff's sale of the property to a related entity. In an interesting twist, the First Circuit rejected the trial court's basis for summary judgment, and instead affirmed on another basis that Arthur and Gordon had argued -- that the area of protection had not become effective yet under the terms of the franchise agreement. Even though the former president of Howard Johnson had testified that he understood that the area of protection was effective, the First Circuit panel (Selya, Howard and Lipez) agreed with Arthur and Gordon that such testimony was "immaterial" in light of the clear language of the franchise agreement.
