In business, change is both constant and inevitable. One change that often causes concern is when an employee or group of employees leaves a company and later goes to work for a competitor. This occurrence often triggers the application of a non-compete agreement that was executed at or likely near outset of the employment relationship. This can send both corporate and outside counsel scurrying to review the agreement to determine what is in it and how it will affect the departing employee’s ability to compete with the company. Noncompetes are used to protect a company’s confidential information, client relationships, trade secrets and workforce. As a general concept, non-competes are disfavored but allowed, with North Dakota being the only state in the country that has a blanket prohibition against non-competes.Click here to view the full article.
The Ever-Changing Playing Field: Evolving Legislative and Judicial Scrutiny of Non-Compete Agreements
Click here to view the full document.
View an excerpt below.
A recent decision by the Missouri Supreme Court is a good reminder that while seemingly elementary, a fundamental understanding of the basis of personal jurisdiction is essential for all litigators; a flawed understanding can result in severe consequences. In Norfolk Southern v. Dolan, an Indiana resident railroad worker brought a personal injury action against his employer, Norfolk Southern, in Missouri State Court under the Federal Employer’s Liability Act (FELA).
Excerpt from Specifically General or Statutory: Knowing Your Basis for Jurisdiction article written by litigation Attorney, Matthew Moeller, Esq for the American Bar Association.
The bedrock principle behind the AEA is that in order to properly invoke jurisdiction under pursuant to the AEA, the injury must emanate from a vessel in navigable waters. The party who invokes jurisdiction must allege vessel negligence, which relates to a defective appurtenance or negligent navigation as well as tortious conduct of the crew that results in an injury on land. Furthermore, the AEA applies only to a vessel and her appurtenances and does not include those performing actions for the vessel such as the manner in which workers load and unload cargo and equipment.Excerpt from Article written by Maritime Law Attorney, Matthew Moeller, Esq for the American Bar Association.
If you serve as an in-house counsel or serve in the capacity of corporate or general counsel in private practice, sooner or later you’re going to be asked by your employer or your client if they can fire someone with disabilities, known or unknown, without putting the company in legal jeopardy. By the same token, you’re also at another time likely to be asked if the company can refuse to hire an apparently qualified employee with disabilities. That determination can be difficult and certainly becomes even more complicated when the employee or prospective employee is covered by the Americans with Disabilities Act (“ADA”). It is important for in house or outside general counsel to understand the different standards for acting under the direct threat doctrine when advising the company of taking action that could violate the ADA.Excerpt from Article written by Business Litigation Attorney, Matthew Moeller, Esq for the American Bar Association.
View an excerpt below. Click here to download the Article PDF.
Few amendments to the Federal Rules have garnered as much notoriety and attention as the recent amendments to Rule 26 of the Federal Rules of Civil Procedure regarding the scope of discovery. As courts begin issuing decisions based on the new amendments, attorneys and clients are beginning to get a sense of the limits and scope of discovery in a new world. A recent ruling by Judge David Campbell based on analysis of relevancy and proportionality under the new rule precluded an attempt to discover electronically stored foreign communications in multidistrict litigation over allegedly faulty medical devices. The ruling is significant because Judge Campbell chaired the Rules Committee when the 2015 amendments were passed. There is no better source of guidance for attorneys learning to practice in the new universe of relevancy and proportionality than a ruling from the chairman of the committee, and this decision is certain to be given much deference as courts struggle to define the new scope of discovery.
Jones Act employers have long been frustrated by their inability to recover these benefits when they’re later deemed to be illegitimate. Boudreaux v. Transocean Deepwater Inc. appeared to have closed the door on the possibility of recovery, but a recent ruling in Louisiana may have reopened it. First, some background: In Boudreaux, the plaintiff sued for damages from an on-the-job back injury. Transocean established a McCorpen defense (McCorpen v. Central Gulf Steamship Corp.) to liability and counterclaimed to recover maintenance and cure benefits already paid. Such a defense can be used when the employer requires a medical exam as part of the hiring process and can prove three conditions: (1) that the seaman intentionally hid pertinent medical history; (2) that the history in question was material to the company’s decision to hire the seaman; and (3) that there was a causal link between a concealed, pre-existing condition and the on-the-job injury.Excerpt from Article written by Maritime Law Matthew Moeller, Esq. for Workboat.com.
In Boone Coleman Construction, Inc. v. The Village of Piketon, the defendant contracted for a roadway and improvements project and agreed to pay Boone $683,300 to complete the work. 50 N.E.3d 502 (Ohio 2016). The contract required substantial completion within 120 days and contained a liquidated damages provision that provided for the payment of $700 for each day beyond the substantial completion date. Boone did not complete the project until well over a year after a previously extended substantial completion date. Boone brought suit against Piketon alleging that it failed to pay money due under the contract, and Piketon counterclaimed for liquidated damages. The trial court granted summary judgment in favor of Piketon, awarding $277,900 in liquidated damages. Boone appealed, however, asserting that the trial court erred in awarding Piketon liquidated damages. Upon review, the appellate court agreed, reversing the trial court’s liquidated damages award and remanding the case for further proceedings. Relying on Samson Sales, Inc. v. Honeywell, Inc., 465 N.E.2d 392 (Ohio 1984), the appellate court held that upon reviewing the contract as a whole in its application, it was clear that “the amount of damages [was] so manifestly unreasonable and disproportionate that it [was] plainly unrealistic and inequitable.” Boone Coleman Constr., 50 N.E.3d at 507. The court concluded that the liquidated damages provision constituted “an unenforceable penalty.” Id., citing Samson Sales, 465 N.E.2d at 392.Excerpt from Article written by Construction Law Attorney, Matthew Moeller, Esq for the American Bar Association.