Many employers have offices in multiple states, but want to have one form of employee agreement prohibiting solicitation of employees and customers, points out Dorsey & Whitney.

Because some state laws, namely California, may be too different to reconcile with other states, author Gabrielle Wirth considers the question: What sort of non-solicitation agreements work in California?

“In California, non-solicitation agreements are reviewed as contracts which prevent a person from engaging in a profession, trade or occupation which, with limited exceptions, are void under Business and Professions Code section 16600,” Wirth explains. “Thus, recent cases have held that an agreement between an employer and employee prohibiting the solicitation of customers is not enforceable unless tied to the employee’s use of trade secrets or some other legal duty owed by the employee.”

Read the article.

Anne Murphy has joined Arent Fox LLP as a partner in the firm’s Health Care practice.

In a release, the firm said Murphy joins the Boston office, where she will work as an advisor on mergers and acquisitions, corporate restructurings, and significant strategic projects for health care systems, academic medical centers, and health care service organizations.

The firm said Murphy manages transactional, regulatory, litigation, risk, compliance, and accreditation issues. Additionally, she counsels clients on Enterprise Risk Management, joint ventures, and emerging health care delivery models in areas such as value-based purchasing, behavioral health, aging in place, health information and technology, and telemedicine.

Prior to joining Arent Fox, Murphy was a partner in the Boston office of a New England law firm and a senior vice president and general counsel at a large academic medical center in Chicago. She also previously served in both private and public sector positions, including as chief counsel to the Illinois Department of Public Health.

Akerman LLP announced the the addition of Sul Kim, Erica Mason, Anthony Morris and Peter Spanos in its Atlanta office.

In a release, the firm said the four new partners raise the headcount to 11 lawyers in the 10 months since the office opened.

Kim, Mason and Spanos practice in labor and employment, while Morris works in commercial litigation.

Kim joins from Constangy, Brooks, Smith & Prophete LLP. The firm said she represents employers in matters involving union organizing campaigns, National Labor Relations Board proceedings, workplace safety and health issues, race, national origin, age, disability, religion and sex discrimination and harassment claims, and wage and hour claims. Kim has experience with foreign-based international companies, especially those in the automotive and manufacturing sectors.

Erica Mason, Partner, Labor and Employment Practice Group
Mason joins from Constangy, Brooks, Smith & Prophete LLP. As national and regional employment counsel for her clients, she routinely defends employment claims before state and federal courts and agencies across the country, including successfully litigating five sexual harassment class actions against the U.S. Equal Employment Opportunity Commission (EEOC) and dozens of class and collective actions against privately represented individuals and groups.

Anthony Morris, Partner, Litigation Practice Group
Morris joins from Dentons US LLP. He focuses his practice on business litigation, in addition to professional ethics and entertainment. He represents some of the world’s largest companies, with an emphasis on multinational insurance companies, in complex litigation matters, including class actions. Morris litigates high dollar coverage claims with insureds and handles all types of coverage disputes, with a particular focus on those alleging bad faith, and has experience in the substantive law regarding first-party property loss. He also defends corporate directors and officers in negligence, breach of fiduciary duty and securities fraud claims, attorneys in malpractice claims, and entities in sexual misconduct claims involving their personnel. He also routinely represents clients in appellate courts.

Peter Spanos, Partner, Labor and Employment Practice Group
Spanos joins from Barnes & Thornburg LLP. He has decades of experience representing clients in all major areas of labor and employment law, including federal and state employment law guidance and litigation, wage and hour law compliance and claims, trade secrets, unfair competition, and non-competition matters. In addition, Spanos provides legal counsel pertaining to collective bargaining, union organizing, elections, unfair labor practices, grievances and strikes.

Associate Ana Dowell also joined the Atlanta office from Ogletree, Deakins, Nash, Smoak & Stewart. She represents employers in a variety of employment law matters, including alleged violations of Title VII, ADA, FMLA, and FLSA.

Perkins Coie announced that former JCPenney director April Goff has joined the firm as a partner in its Tax, Benefits & Compensation practice. Goff joins the firm in Dallas after serving as senior counsel at J. C. Penney Corporation, Inc. where she oversaw all employee and executive compensation matters as well as cybersecurity and data privacy issues.

Goff’s move to Perkins Coie follows that of three labor and employment partners – Richard B. Hankins, Seth H. Borden and Brennan W. Bolt. Richard and Brennan are also based in Dallas, while Seth is based in the firm’s Washington, D.C. office.

In a release, the firm said Goff has advised executive leadership teams on issues relating to employee benefits, corporate restructuring, executive and associate compensation, cybersecurity risk, financials, and budgeting and cost containment strategies. She is also routinely involved in executive employment agreements and counsels clients on complex labor and employment matters.

Goff served at JCPenney for three years after holding prior roles as an employee benefits attorney with several AmLaw 100 firms. She has been recognized by the Association of Corporate Counsel as one of the “Top 10 30 Something In-House Lawyers for 2019”, is actively involved in the legal community, and holds leadership positions within local and national professional organizations.

She serves as chair of the Fiduciary Responsibility, Administration and Litigation Committee for the American Bar Association Section of Real Property Trusts and Estate Law and will be taking over as vice chair of the Employee Plans and Executive Compensation Group with the new bar year. She also serves as chair of the ACC Dallas-Fort Worth Chapter’s Women’s Leadership Committee and is vice chair of the ACC Employment and Labor Law Network.

Goff was also recently appointed to the Internal Revenue Service Advisory Council to represent the interests of employer plans under the Tax Exempt/Government Entities division.

Goff earned her J.D., magna cum laude, from St. Thomas University School of Law B.A. and her M.B.A. from Baylor University. She graduated with a B.A., magna cum laude, from Tarleton State University.

Karen Hayes

Partner Karen A. Hayes and attorney Asama L. Itseumah have joined Freeborn & Peters LLP in its Corporate Practice Group in Chicago.

Hayes also joins the firm’s Private Equity and Venture Capital Industry Group.

The firm said Hayes advises clients on federal income tax. She represents corporations, partnerships and private equity funds involved in a variety of taxable and non-taxable transactions, domestic and cross-border mergers and acquisitions, divestitures, investments, reorganizations, partnerships, and joint ventures. In addition, she has represented tax credit syndicators, banks and other institutional investors with respect to investments in affordable housing projects that generate low-income housing tax credits under Section 42 of the Internal Revenue Code. Hayes also has experience advising real estate investment trusts with respect to tax matters.

Prior to joining Freeborn, Hayes was a partner at Sidley Austin LLP. She received her J.D. from Harvard Law School and her Bachelor of Arts from St. Cloud State University.

The firm said Itseumah concentrates his practice on the creation of organizational and corporate governance documents for corporations, limited liability companies, and nonprofit corporations. He also assists clients on matters involving mergers and acquisitions and commercial contracting.

Prior to joining Freeborn, Itseumah was an attorney at Warner Norcross + Judd LLP. He received his J.D. from Loyola University Chicago School of Law and his Bachelor of Arts from Northern Illinois University.

Justin R. Pollak has joined Davis & Gilbert LLP as a partner in the Corporate Practice Group.

The firm said Pollak’s practice focuses on seed and venture capital financing transactions as well advising emerging and high-growth companies in transactions through all stages of their development. Over the past decade, he has represented businesses in their investments across a broad range of industries, including fintech, blockchain, fashion, social and digital media, enterprise software, network security, and biotechnology. Pollak is currently representing the founders of a cryptocurrency trading fund in the formation and governance of the fund and an e-commerce solution company in its Series Seed financing.

Prior to joining the firm, Pollak was a partner at Hand Baldachin & Associates LLP. He earned his undergraduate degree at Cornell University, M.B.A. at Emory University’s Goizueta Business School and J.D. at Emory University School of Law.

Edward S. Sledge IV, a partner in Bradley Arant Boult Cummings LLP’s Birmingham office, has been appointed director-elect of the annual Trial Academy of the International Association of Defense Counsel (IADC). He also has been appointed to the board of the National Foundation for Judicial Excellence (NFJE).

With the Trial Academy, Sledge will serve as director-elect in 2020 and as director, overseeing implementation of the program, in 2021. He was appointed to a three-year term on the NFJE board, beginning this month.

A member of Bradley’s Litigation Practice Group, Sledge is a litigator and trial lawyer, with experience in high-stakes, bet-the-company disputes for a variety of corporate clients and private equity groups, the firm said in a release. He has tried cases to verdict in multiple state and federal courts and serves as national trial counsel to a unit of a Fortune 50 corporation. Sledge represents financial services clients in connection with finance-related litigation, including the defense of class actions, lender liability, securities, and RICO claims. In addition, to commercial disputes, Sledge litigates product liability matters, consumer finance disputes, intellectual property disputes, and insurance coverage matters, , as well as personal injury and wrongful death matters, the firm said.

Sledge is a frequent lecturer and author on civil litigation and trial issues. He serves on the Foundation Board of the IADC, is a Fellow of the American Bar Foundation and has been listed in The Best Lawyers in America, Benchmark Litigation, Mid-South Super Lawyers and Alabama Super Lawyers (Top 50), among other publications. As a former Army officer, Sledge remains active in serving veterans’ issues for which he has been recognized by the Alabama State Bar with its President’s Award three times. He is a graduate of the United States Military Academy and the University of Alabama School of Law.

Held in the summer at Stanford Law School in Palo Alto, Calif., the IADC’s Trial Academy is a seven-day, intensive training event and one of the oldest and most respected programs in the country for enhancing trial advocacy skills of less experienced lawyers. The program emphasizes the learning-by-doing method of instruction, blending faculty instruction and demonstration with individual student participation. The program’s faculty consists of IADC members who are leading defense trial lawyers, representing different geographic areas and diverse practices, styles and personalities.

The IADC is the preeminent invitation-only global legal organization for attorneys who represent corporate and insurance interests. In addition to its core purpose involving professional development for its members, the IADC takes a leadership role in many areas of legal reform. Founded in 1920, the IADC’s 2,500 members hail from six continents, more than 50 countries and territories, and all 50 U.S. states.

The NFJE addresses important legal policy issues affecting the law and civil justice system by providing meaningful support and education to the judiciary, including by publishing scholarly works and by engaging in other efforts to continually enhance and ensure judicial excellence and fairness for all engaged in the judicial process.

By Jeffrey J. Vita
Saxe Doernberger & Vita, P.C.

For those contractors and other parties enrolled in wrap-up insurance programs, one nagging issue frustrating risk transfer has been the Designated Operations Wrap-Up Exclusion found on many contractors’ programs. See, for example, ISO CG 21 54 01 96, which provides in relevant parts as follows:

“This insurance does not apply to ‘bodily injury’ or ‘property damage’ arising out of either your ongoing operations or operations included within the ‘products-completed operations hazard’ at the location described in the Schedule of this endorsement,as a consolidated (wrap-up) insurance program has been provided by the prime contractor/project manager or owner of the construction project in which you are involved.”

This exclusionary language creates an obstacle to the parties’ intended risk transfer in situations involving unenrolled trades or offsite exposures. For example, where an unenrolled trade causes a loss and the general contractor, construction manager and/or project owner are sued, the intent of the parties is for the upstream party(ies) to transfer the risk to the unenrolled party via the unenrolled party’s additional insured coverage. The existence of the wrap-up exclusion cited above, or any of the manuscript versions currently in use, however, frustrates this intent as certain courts interpreting the language have held the exclusion applies to the additional insured claim despite the fact that the downstream trade causing the loss is not enrolled in the wrap-up program.

As a result, upstream parties have attempted to remedy this problem by requiring the unenrolled trades to endorse their programs either to modify the wrap-up exclusion such that it does not apply to instances where the named insured (downstream party) is not enrolled in the wrap-up program or to include an exception to the exclusion for a specific project. Alternatively, the downstream party has tried to modify the wrap-up exclusion such that it does not apply to additional insured claims. Finally, upstream parties may be forced to enroll parties in the wrap-up program that they did not initially intend to enroll, in order to avoid any gap in coverage.

ISO has now solved this dilemma by issuing endorsement CG 21 54 12 19 which states that the wrap-up exclusion applies only if you (i.e. downstream party) “are enrolled in a ‘controlled (wrap-up) insurance program’ with respect to the ‘bodily injury’ or ‘property damage’ described…above at such location.” This new language closes a major loophole in the risk transfer scheme utilized in wrap-up insurance programs when dealing with unenrolled trades or offsite exposures.

Any owner in an OCIP or contractor in a CCIP should request that all unenrolled trades and enrolled trades providing offsite coverage utilize this new endorsement on their corporate programs to remedy this potential gap in coverage and reflect the parties’ intended risk transfer.

Elizabeth “Beth” Odian and Carrie Ziegler Thomas have joined Michael Best’s Labor & Employment Relations Practice Group in Milwaukee as senior counsel.

In a release, the firm said Odian defends and advises employers in matters arising under the Wisconsin Fair Employment Act, Title VII, the American with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, and the Fair Labor Standards Act. She represents employers in front of state and federal agencies including the Equal Rights Division, Unemployment Division, and Worker’s Compensation Divisions of Wisconsin’s Department of Workforce Development. She also counsels clients on a wide range of employment matters including, policies, contracts, terminations, leaves of absence and disciplinary actions.

Ziegler Thomas is an immigration attorney and counsels employers throughout all aspects of hiring a foreign employee. This encompasses drafting immigrant and nonimmigrant petitions, including H-1B visas, and permanent resident petitions, including EB-5 investor green cards. She also assists clients in developing strategies and solutions surrounding their global mobility issues.

Odian and Ziegler Thomas’ moves follows the addition of two associates to the Labor & Employment Relations Practice Group earlier this month. Kurt Ellison joined in Madison and Michael Chropowicz joined in Chicago.

Odian was most recently a partner at Hinshaw & Culbertson, LLP. She earned her J.D., cum laude, from Marquette University Law School and her B.S., magna cum laude, from the University of Massachusetts at Lowell.

Ziegler Thomas was previously a partner at Grzeca Law Group, a boutique family and corporate immigration firm. She earned her J.D. from Marquette University Law School and her B.S. from Ferris State University.

Thompson & Knight LLP advised the Conflicts Committee of American Midstream Partners, LP in its merger with an affiliate of ArcLight Energy Partners Fund V, L.P.

The partnership has announced the closing of the transactions contemplated by that certain Agreement and Plan of Merger, dated March 17, 2019, by and among the partnership, American Midstream GP, LLC, and affiliates of ArcLight, pursuant to which an affiliate of ArcLight has taken the Partnership private by acquiring all of the outstanding common units of the partnership not already held by affiliates of ArcLight, at a price of $5.25 per common unit.

The firm’s cross-practice deal team was led by the corporate team of Alan P. Baden, Jeremiah M. Mayfield, and Stephen W. Grant Jr., with assistance from J. Dean Hinderliter, Dasha K. Hodge, Timothy J. Johnston, Catharine A. Hansard, Tonya Maksimenko, and Nicolas Adrian McTyre.

The law firm of Thompson & Knight LLP announced that George Humphrey has joined the firm’s Houston office as a partner in the Finance Practice Group.

The firm said Humphrey’s practice focuses on U.S. and international project finance and development and mergers and acquisitions, particularly in the energy industry. He has overseen the development, financing, and closing of billions of dollars in energy projects. His ongoing work includes advising on an EPC contract and project financing for a petrochemical facility, a power purchase agreement for a Texas solar facility, and an energy scheduling agreement for a Mexican renewable project. His prior work includes helping a client sell its South American renewable business, including operating wind and solar projects, and the refinancing of project debt following the commercial operation of a methanol facility.

Humphrey has been named a Recommended Attorney in The Legal 500 US by Legalease in the Renewable and Alternative Energy category (2019) and listed as a Notable Practitioner for banking & finance, energy, project development, and project finance by IFLR1000 (2019). Humphrey has also been recognized by Euromoney’s Expert Guides as one of the world’s leading practitioners chosen by their peers in energy (2018).

Humphrey received his J.D. from the University of Florida’s Fredric G. Levin College of Law and B.A., with honors, also from the University of Florida. Immediately prior to joining the firm, Humphrey was a partner at Orrick, Herrington & Sutcliffe.

Arent Fox LLP announced the expansion of its Privacy, Cybersecurity & Data Protection practice with the addition of partner Julia B. Jacobson. Jacobson joins the Boston office, where she will continue to advise clients on data privacy and protection issues, as well as marketing and technology transactions.

In a release, the firm said Jacobson counsels clients on how to comply with federal, state, and international laws and industry standards, monetize data, and address privacy and security issues that arise during business transactions. She advises clients on compliance with GDPR, ePrivacy Directive, New York Department of Financial Services Cybersecurity Regulations and preparations for compliance with the California Consumer Privacy Act, and other evolving privacy and cybersecurity laws.

In addition, Jacobson assists clients with the design and development of privacy-sensitive policies for use and protection of personal data, cybersecurity incident response, information governance, and vendor management.

Prior to joining Arent Fox, Jacobson was a partner in the Technology Transactions practice at an AmLaw 50 firm.

The Biglaw firm of LeClairRyan, already in the news after issuing WARN Act notices to staff warning about possible mass layoffs, has lost founding partner Gary LeClair, according to Above the Law.

The report says LeClair will be taking two other partners with him to Williams Mullen as of August 5.

“For over a year now the firm has seen a flood of partners and senior attorneys exit,” writes Above the Law senior editor Kathryn Rubino. “Almost 10 percent of LeClair’s headcount departed in 2018, and the trend has continued in 2019. Indeed, just earlier this week a 15-attorney group from LeClairRyan — the aviation group led by Mark Dombroff — departed.”

Read the Above the Law article.

Mike Ramsey, the Houston criminal defense lawyers who represented high-profile clients such as Ken Lay in the Enron scandal and Robert Durst on a murder charge, died Saturday evening.

The Houston Chronicle reports that Ramsey died at the age of 79, after suffering from failing health.

The Chronicle‘s John Tedesco quotes former U.S. Attorney Ron Woods, who later became a defense lawyer: “He’s the best cross examiner I ever saw. He was so smart, and so personable. His job was to destroy the credibility of the state’s witnesses. He could do it with charm. But he was always very devastating.”

Read the Houston Chronicle article.

An attorney for a contractor accused of passing envelopes of cash in restaurant bathrooms to Atlanta’s former purchasing director said that if his client made payments to imprisoned city official Adam Smith, it was out of generosity to a cash-strapped friend and not with corrupt intent, reports The Atlanta Journal-Constitution.

“It is not illegal to give a gift, goodwill, friendship,” unless it’s for a dishonest purpose to influence that official, said Steve Sadow, an attorney for contractor Jeff Jafari.

Sadow also said in a federal court hearing that evidence provided by prosecutors so far suggests that Smith took money from more people than prosecutors have revealed, but that those individuals haven’t been prosecuted.

Read the Journal-Constitution article.

The Blockchain & Financial Services Blog of Frost Brown Todd features a discussion in which a court ruled that where a contract between a credit card processor and its sale agent had conflicting clauses, the clause should be read in favor of the sales agent, resulting in the credit card processor being liable for withholding residual payments.

Courtney Rogers Perrin writes about Infinity Capital LLC v. Francis David Corp., from the Northern District of Ohio.

The ruling offers a lesson in contract drafting and the need for clear, non-contradictory provisions, as well as enforceable damages clauses, according to Perrin.

Read the article.

Two recent court decisions dealing with mandatory arbitration agreements highlight why some manufacturers may gain by requiring pre-dispute employment arbitration agreements, writes Matthew Miklave for the Robinson+Cole Manufacturing Law Blog.

He discusses two federal court rulings favoring individual arbitration over litigation.

In one of the cases, the Second Circuit Court of Appeals reversed a lower court and found that a union labor contract which contained a clause requiring the arbitration of all disputes between the union represented employees and the employer prevented an employee from bringing an individual claim in federal court.

Read the article.

In its Contract Corner feature, Morgan Lewis highlights considerations for drafting sublicense provisions in the context of an intellectual property license.

“A sublicense in the context of an IP license is any agreement where the licensee grants a third party rights to any of the licensed IP,” the article explains. “This provision is often overly broad, but can be tailored to include standard exceptions (e.g., ordinary course agreements with End Users, distributors, etc.) in order to avoid an overly broad definition and to make sure that the royalty calculations are clear.”

Authors Emily R. Lowe and Morgan Oksana Dudkewitz discuss sublicensing approval, compensation, termination, flow down, document control, and licensor-imposed sublicensing.

Read the article.

Image by Mike Mozart

A California judge on Thursday reduced a $2 billion jury verdict, slashing the award for a couple who blamed Bayer AG’s glyphosate-based weed killer Roundup for their cancer to $86.7 million, according to a Reuters report.

A California Superior Court judge in Oakland said the jury’s billion-dollar punitive damages awards were excessive and unconstitutional, but rejected Bayer’s request to strike the punitive award outright, writes Reuters’ Tina Bellon.

The order could result in plaintiffs Alva and Alberta Pilliod receiving $17 million in compensatory and $69 million in punitive damages, down from $55 million and $2 billion, respectively.

Read the Reuters report.

A suspended lawyer who was found in contempt of court for stonewalling Chevron’s efforts to collect a money judgment against him has been ordered to pay $3.4 million in attorney fees to the oil company, reports the ABA Journal.

A federal judge ordered New York lawyer Steven Donziger to pay the attorney fees for “intransigence” that blocked Chevron’s “considerable efforts” to get at the facts.

The Journal‘s Debra Cassens Weiss writes that Donziger told the publication that $3.4 million is the highest sanction in the history of New York courts. And it’s not his total liability—court fees, attorney fees and fines add up to about $10 million.

Read the ABA Journal article.