Litigationblawg - Hoguet Newman Regal & Kenney, LLP

HNRK Victory On "Manifest Disregard" Standard In Arbitration Cited

Tue, 07 Sep 2010 21:22:00 GMT

The firm won an arbitration award of $671,000 for its client against Banc of America Securities Inc. which then sought to vacate the award on several grounds including that the arbitration panel manifestly disregarded applicable law. We argued that was not an acceptable basis in New York for overturning an arbitration award, and prevailed. Banc of America Securities v. Knight, 4 Misc. 3d 756 (Sup. Ct., NY Cnty, 2004). The U.S. Supreme Court later ruled similarly in Hall Street Assoc. LLC v. Mattel, Inc., 552 U.S. 576 (2008). In the current issue of Siegel's New York State Law Digest, the lead article is "Arbitrating Arbitrability" and it refers to our victory as a "major New York" decision. It has been cited 50 times.

U.S. Court of Appeals affirms HNRK's rare summary judgment dismissing retaliation claim

Mon, 12 Apr 2010 15:20:00 GMT

HNRK won a solid victory in the US Court of Appeals for the District of Columbia on April 9, 2010 in the case of Gaujacq v. EDF, Inc., affirming a District Court decision that granted summary judgment in favor of our clients Electricite de France, S.A. (EDF) and EDF, Inc. The case arose from the assignment by EDF, a major French utility company, of a nuclear engineer, Mme. Gaujacq, to head its Washington office. When her tour was ending, Mme. Gaujacq sought to remain in Washington; EDF at first accommodated her but then recalled her to France when she was unwilling to work with the new office head. She threatened to sue EDF for "discrimination" unless they let her stay in the US and structure a job for her as she wished. EDF wanted Gaujacq back in France and appointed her to a very important and prominent position there, managing the development of a new series of nuclear reactors. But she refused to return to France and refused to report for the job and was ultimately fired. The District Court dismissed Mme. Gaujacq’s claims under the Equal Pay Act as well as her sex discrimination and retaliation claims under Title VII and the DC Human Rights Act.

The DC Circuit's opinion affirming the summary judgment is notable on the law for its treatment of the retaliation claim, in which it applied the instruction of the US Supreme Court's recent decision in Burlington Northern & Santa Fe Ry. v. White (2006) that "[c]ontext matters" in analyzing whether an employer statement is a threat of retaliation, and held that, in the context of this case, a statement that might literally be read as words of threat could not be considered a threat of retaliation. The opinion by Senior Circuit Judge Harry Edwards is memorable for the Court’s incisive rejection of plaintiff's claim that summary judgment should be denied and the case should be tried to a jury on the claim of retaliation because of an alleged statement to her by the COO of EDF that “Your career is dead in EDF if you file a claim.”

Judge Edwards wrote: "A threatening verbal statement, standing alone, might well constitute a materially adverse action. However, in assessing such a claim, Burlington emphasizes that “[c]ontext matters” and that “the significance of any given act of retaliation will often depend on the particular circumstances.” [citation omitted] Therefore, a statement that literally appears to be threatening is not necessarily a materially adverse action.”

Judge Edwards went on to find: “In the context of this case, a reasonable worker in Gaujacq’s position would not have taken Creuzet’s brief, fleeting, and unadorned verbal statement as an act or threat of retaliation. Both before and after Creuzet’s statement, top EDF officials went out of their way to accommodate Gaujacq’s desire to stay in the United States, despite her increasing insubordination and refusal to consider any future employment decision that did not meet her precise demands.”

Courts frequently dismiss discrimination claims but uphold a plaintiff’s right to maintain a claim for retaliatory firing. This case shows that the retaliation claims will not always survive.

Laura Hoguet, John Kenney named New York Superlawyers - again!

Tue, 06 Oct 2009 20:30:00 GMT

For three years running, both Laura Hoguet and John Kenney have been named as Superlawyers in the New York Metro area. Laura Hoguet has been recognized in two areas, Business Litigation and Employment & Labor. John Kenney has been recognized in three, Business Litigation, Criminal Defense: White Collar, and Corporate Governance & Compliance. The Superlawyer ranking is based upon peer nominations and evaluations, and independent third party research. The firm does not solicit or pay for the designation.

HNRK Client Prevails at the Second Circuit.

Tue, 06 Oct 2009 20:28:00 GMT

In a unanimous decision, the United States Court of Appeals for the Second Circuit affirmed a decision of the lower court which dismissed the claim of a former police officer who sued his employer, the Metropolitan Transportation Authority, for $20 million for alleged job-related injuries. The plaintiff sued under the Federal Employers' Liability Act ("FELA") alleging he sustained injuries resulting from exposure to the World Trade Center site following 9/11. He also complained of MTA' s policy of requiring that officers remain at home while on disability leave unless granted a special designation known as "no work status." The 2nd Circuit agreed with HNRK's arguments that plaintiff failed to comply with pleading requirements for a valid FELA claim and that he released his claims anyway as part of a settlement of an earlier suit. The Circuit concluded that the appeal was frivolous and is considering an application to award damages to the MTA. Bruno v. MTA, 2009 WL 2524009 (2nd Cir. 2009).

Tai-Heng Cheng Presents Alternative Dispute Resolution CLE on Hybrid Mediation and Arbitrations

Thu, 10 Sep 2009 14:36:00 GMT

On June 16, 2009, Tai-Heng Cheng delivered an alternative dispute resolution CLE on hybrid mediation and arbitrations ("Med-arb") at the Fourth Annual Conference on International Arbitration and Mediation at Fordham Law School to leading international arbitrators, mediators, practitioners, and scholars. Participating on a panel with representatives from AAA/ICDR and CPR, Professor Cheng discussed the economic pressures to conduct alternative dispute resolution more efficiently and at lower costs, and how med-arb in international commercial disputes might present an attractive alternative. He also highlighted problems of enforcing med-arb settlements or awards in the United States and internationally, and suggested strategies for counsel and arbitral institutions to overcome these challenges. A paper based on his comments will be published in June 2010 in a book of the proceedings of the Conference.

Chambers names Newman a "Leading Lawyer" for General Commercial Litigation

Tue, 21 Jul 2009 19:59:00 GMT

Fred Newman has been named a "Leading Lawyer" for General Commercial Litigation in New York in the just-published Chambers USA Directory of America's Leading Lawyers for Business 2009 Edition. The Chambers rankings are based upon independent research and peer group interviews, and our firm has not paid for the listing. Only 76 lawyers in New York were recommended in this category.

Sheryl Galler Presents Employment Law CLE for "Turbulent Times"

Tue, 21 Jul 2009 19:54:00 GMT

On June 12, 2009, HNRK Partner Sheryl Galler delivered a presentation at the New York State Bar Association's program, Counseling the Corporate Client in Turbulent Times: Employment Law for the General Practitioner and Corporate Counselor. Ms. Galler spoke about the fundamentals of executive employment agreements, how to avoid potential conflicts over restrictive covenants, how to differentiate between independent contractors and employees, and recent developments in the law affecting commissioned salespersons. She also provided drafting tips for agreements with executives, independent contractors and commissioned salespersons. More than 60 attorneys attended the CLE program, which was offered by the Labor and Employment Law Section of the NYSBA.

Newman A Visiting Professor On Arbitration

Wed, 15 Apr 2009 16:00:00 GMT

Fred Newman gave a series of lectures on International Arbitration at the law faculty of Rezeknes Augstskola, Latvia, during March, 2009. He presented the fundamentals of arbitration policy, practice and procedures to fourth year students. The lectures were in English. Newman's lectures were arranged by the Center for International Legal Studies, Salzburg, Austria, a non-profit organization that places experienced Common Law practitioners at law faculties in Eastern Europe and the former republics of the Soviet Union. Newman's Powerpoint presentation is available here.

HNRK Wins Arbitration Award

Wed, 18 Feb 2009 16:11:00 GMT

An arbitrator for the International Centre For Dispute Resolution has ruled in favor of HNRK's client, Tradesim AS, in an arbitration. Claimant brought the arbitration against Tradesim and its principal, seeking damages for Tradesim's alleged breach of contract to sell it custom software and further develop that software, as well as substantial consequential damages. Tradesim counterclaimed for breach of contract, asserting that Claimant itself had breached and repudiated the contract. The arbitrator denied Claimant's claims and ruled that Claimant must pay Tradesim $533,300.

Randi May quoted in Employment Law 360

Mon, 19 Jan 2009 05:15:00 GMT

HNRK Partner Randi May was quoted in Employment Law 360 's "Lawyer to Execs: Beware Your BlackBerry" on Friday, January 9. This article featured the views of employment lawyers on the perils of executives' use of BlackBerries, an issue brought to forefront by President-elect Barack Obama's struggle to keep his BlackBerry over his lawyers' vehement objections. With routine electronic discovery, Randi told Employment Law 360 that executives need to exercise greater caution when sending hasty BlackBerry emails.

Sheryl Galler Addresses State Bar

Wed, 10 Dec 2008 17:50:00 GMT

Our partner Sheryl Galler was recently a panelist at a continuing legal education workshop entitled "Update on Wage and Hour Issues: Developments in New York Labor Law and the FLSA." Ms. Galler discussed the federal rules and regulations setting the minimum wage and overtime compensation standards, recent court decisions applying those federal standards, and the risks of non-compliance. She also provided tips on the best practices for employers conducting a self-audit. The workshop was presented at the Fall Meeting of the Labor and Employment Law Section of the New York State Bar Association, which was held in Cooperstown, New York.

HNRK Partner Sheryl Galler Speaks at NAMWOLF Annual Meeting

Fri, 21 Nov 2008 04:18:00 GMT

Our partner Sheryl Galler recently chaired a panel discussion entitled “Stay Out of Court, Stay Out of the Media and Stay Out of Trouble: The Many Faces of Corporate Compliance.” Ms. Galler presented the whistleblower provisions of the Sarbanes-Oxley Act and recent court decisions interpreting those provisions. She also shared with the audience the current approach of public relations professionals on dealing with media inquiries regarding government investigations.

The panelists included Valerie Caproni, who is now General Counsel of the FBI and formerly held high level positions at the U.S. Attorneys’ Office and the Securities and Exchange Commission. Ms. Caproni was invited to join the panel by Ms. Galler and our partner John Kenney, who worked with Ms. Caproni at Simpson Thacher & Bartlett.

The panel discussion was presented at the Annual Meeting of the National Association of Minority and Women Owned Law Firms (NAMWOLF), which was held in Dallas, Texas on November 13-14, 2008. The session was accredited by the State Bar of Texas for continuing legal education credit.

Hoguet Newman Regal & Kenney has been a women-owned law firm since its start in 1996. We are a member of NAMWOLF, which shares our goal of encouraging clients to hire women-owned law firms such as ours based on the experience and talent of our attorneys, not their gender. We also are certified by the State of New York as a Women-Owned Business Enterprise (WBE).

Ms. Galler has represented the firm's domestic and international clients in a wide range of matters involving fraud, breach of franchise rights, civil RICO, employment discrimination, sexual harassment, retaliation and breach of contract claims. She also counsels clients with respect to employment related disputes and has negotiated scores of severance agreements and employment contracts on behalf of the firm's clients.

Hoguet Newman Regal & Kenney LLP Provides Pro Bono Legal Advice to the Republic of Kosovo

Thu, 13 Nov 2008 19:26:00 GMT

Hoguet Newman Regal & Kenney, LLP provided pro bono legal advice to the Republic of Kosovo earlier this year. From October 9 through 14, 2008, Tai-Heng Cheng travelled to Kosovo to advise the Office of the President and the Ministry of Foreign Affairs on the pending Advisory Opinion of the International Court of Justice on the legality of Kosovo’s declaration of independence.

He also discussed various legal issues with the International Civilian Office, including border delimitation, state succession, sovereign debt, recognition by other states of Kosovo’s statehood, and treaties. In addition, he gave a lecture on state succession at the University of Pristina School of Law to students and attorneys from the Ministry of Justice.

In recognition of the Firm’s services, the Republic of Kosovo presented to Mr. Cheng a copy of the Kosovo constitution inscribed by the Deputy Foreign Minister.

The BlackBerry: Employer's Friend Or Foe?

Thu, 09 Oct 2008 15:38:00 GMT

Companies should consider whether employee communications that do not go through an employee's desktop computer or use the company's e-mail address are captured by the employer's electronic systems policies and security programs, say Randi B. May and E. Anne Musella of Hoguet Newman Regal & Kenney LLP.

First Amendment Claim Dismissed Against HNRK's Client

Wed, 01 Oct 2008 20:34:00 GMT

HNRK won the dismissal of a claim brought by a former manager of the Metro-North Commuter Railroad claiming that his First Amendment rights were violated when the Railroad dismissed him for failing to cooperate with an internal investigation of a train collision and derailment. The accident occurred during the 2003 blackout. The employee failed to appear at scheduled hearings to ascertain responsibility for the accident, but maintained that he was unable to attend the hearings due to psychological impairment, and was dismissed because of critical statements he would have made regarding the adequacy of employee training on important train operating procedures. Agreeing with HNRK's argument, Federal District Court Judge Laura Taylor Swain ruled that under the Supreme Court's 2006 decision in Garcetti v. Ceballos, plaintiff's speech activity (were he to have engaged in such activity) would not have been protected by the First Amendment because such speech would not have been uttered as a private citizen, but rather, in furtherance of the employee's official duties. Judge Swain also rejected a host of other claims raised by plaintiff, including claims that his due process rights were violated, and that the Railroad deprived him of his federal "liberty" interest in his reputation.