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In a recent alert, we reported on two recent cases before the National Labor Relations Board (NLRB) involving a provision of the National Labor Relations Act (the Act) that protects employees’ rights to engage in “concerted activity.” Under this provision of the Act, “concerted activity” includes, among other things, two or more employees discussing wages, hours, or working conditions. The Act prohibits employers from disciplining or discriminating against employees who engage in such discussions. This “concerted activity” protection extends to employees whether or not they are unionized.In one of the cases discussed in our earlier alert, the employer allegedly fired an employee for her disparaging Facebook posts about a supervisor, to which several of her Facebook “friends” who were also co-workers added their comments. The employer fired the employee for violating a policy in its company handbook prohibiting employees from making … [Read more...] about More NLRB Rulings Illustrate Broad Scope Of “Concerted Activity” Protection

In a recent decision, the Commercial Court held that a clause requiring the parties to seek to resolve any disputes by engaging in ‘friendly discussions’ before commencing arbitration proceedings was enforceable: it prevented anyone from commencing formal proceedings unless and until they had, in effect, had a sufficiently friendly discussion with the other side. These kinds of provisions, requiring discussions or negotiations or attempts to reach an ‘amicable’ settlement, are sometimes found in tiered dispute resolution clauses as the first step in the contractual mechanism. Until fairly recently, the received wisdom was that English law tended to be against treating such clauses as imposing binding conditions precedent - though, as ever in the law of contract, everything depends on the wording of the clause in question. However, in Emirates Trading Agency Llc v Prime Mineral Exports Private Ltd [2014] EWHC 2104, Teare J upheld such a clause, … [Read more...] about Hugs All Round: Have You Been Sufficiently Friendly to the Other Side in English Law?

On May 19, 2016, the United States Attorney’s Office for the Southern District of New York and the Securities and Exchange Commission (“SEC”) announced insider trading charges against Las Vegas sports bettor William (“Billy”) Walters and former Dean Foods chairman Thomas Davis for allegedly trading on nonpublic company information.1  Tellingly, no charges were brought against professional golfer Phil Mickelson, who was named as a relief defendant and agreed to repay close to $1 million in trading profits made as part of the alleged scheme.  The government’s decision not to charge Mickelson as an outsider “tippee” is a likely result of the Second Circuit’s 2014 decision in United States v. Newman, which required a heightened showing to prove insider trading cases against individuals many steps removed from corporate insiders.2  However, future tippees may not be as fortunate as Mickelson, depending on whether … [Read more...] about DOJ’s Failure to Charge Phil Mickelson Illustrates Difficulties in Charging Outsider Tippees with Insider Trading

Reading Law, that we change the term "originalism" to "historicism." A scholar in England had suggested that we might use that term in preference to originalism, which had long since become a lightning rod in legal language. It's another "ism" of the kind John Lennon lampooned in "Give Peace a Chance." (Citing Lennon was no help to me at all, naturally: Justice Scalia didn't like the Beatles.) The word originalism even sounds like the much-discredited "creationism," which is faux science.Nino (the affectionate nickname he insisted on) was furious at me. “I’ve spent my whole judicial career calling it originalism, and if I were to change it now, I’d look foolish.”“But originalism is a snarl-word for some people, Nino, and it may hurt us.”“Well then maybe you’ve made a grave mistake throwing in with me.” He hung up the phone on me—the first and only time that ever happened in our 10-year writing partnership.Thirty minutes later … [Read more...] about Bryan Garner’s tribute to his friend and co-author Antonin Scalia

A lawyer’s idea for creating lasting goodwill with his supervisors is being cited by the authors of a new book, Sway, about the psychological impulses that cause people—and hiring managers—to disregard logic.Authors Ori and Rom Brafman say psychological research shows that first impressions stay with people despite evidence that later contradicts their initial assessments. Ori Brafman explains in a New York Times interview with this example:“I have this friend who is a lawyer, and in the first two to three weeks of his job, he made sure to create the impression that he was a hard worker. He was the first in and the last to leave. He would not get up from his desk and didn’t take personal calls. He barely got up to use the bathroom. By the end of the first month, he started to relax, took longer lunches and what’s interesting is that no one noticed. They always attributed that initial value—hard worker—to him. He’s going on seven … [Read more...] about A Lawyer Illustrates How a Good First Impression May Defy Logic