Employer Cannot Be Liable for Interfering with Non-Compete It Doesn’t Know Exists, Third Circuit Holds

Ethan Simon

simonRestrictive covenants are common in many industries. Under New Jersey and Pennsylvania law, a defendant may be liable for tortious interference with a restrictive covenant only if it has actual knowledge of the contract with which it allegedly interferes. In Acclaim Systems, Inc. v. Infosys, Ltd.,[1] the Third Circuit reaffirmed this rule in the context of IT consulting non-competes and expressed its reluctance to recognize any exceptions.

In Acclaim Systems, Time Warner Cable (“TWC”) was looking to cut costs on its Sales Force Dot Com (“SFDC”) project by switching providers for certain IT services. When TWC switched from Acclaim to Infosys, TWC asked Infosys to consider retaining four individuals who were already working on SFDC on behalf of Acclaim. All of these individuals had non-competes with Acclaim that prohibited them from working on SFDC on behalf of Infosys. Continue reading “Employer Cannot Be Liable for Interfering with Non-Compete It Doesn’t Know Exists, Third Circuit Holds”

Third Circuit Enforces Non-Compete Agreement Posted on Internet

Jonathan Korn

aa559a96d2ef7db0cff214478e922bd7Our society is becoming increasingly paperless. As a result, our courts are constantly confronting factual scenarios that could not be contemplated ten years ago. In the latest example, the Third Circuit recently affirmed the enforceability of a non-compete agreement posted online. ADP, LLC v. Jordan Lynch, No. 16-3617 (3d Cir. Feb. 7, 2017).

ADP sought to enforce a non-compete agreement against two employees who had left to work for a direct competitor. The non-compete was for one year and prohibited the employees from soliciting current and prospective clients. The District Court enforced the non-solicitation clause but declined to enjoin the employees from working for the competitor. The employees appealed the injunction order claiming that the District Court erred because there was nothing to prove that they agreed to the contents of the non-compete, despite their affirmance that they read it. Continue reading “Third Circuit Enforces Non-Compete Agreement Posted on Internet”

2017 Legal Malpractice Update

Blank Rome Partner Stephen M. Orlofsky will speak at the upcoming New Jersey State Bar Association (“NJSBA”) CLE, “2017 Legal Malpractice Update,” on March 25, 2017, from 9:00 a.m. to 12:45 p.m., at the New Jersey Law Center. This program is presented in cooperation with the NJSBA Senior Lawyers Special Committee

The panels will discuss the statute of limitations for legal malpractice claims, ethical issues when an attorney changes firms, lost opportunity cases, tips for taking the deposition of an attorney as a witness, and the program will culminate with a legal malpractice court room demonstration. Continue reading “2017 Legal Malpractice Update”

NJ Supreme Court Adopts Restatement Second Section 142 to Determine Applicable Statute of Limitations

Jaret N. Gronczewski 

sfsfThe New Jersey Supreme Court has adopted Section 142 of the Restatement (Second) of Conflicts of Law (1971) as the test going forward to determine which State’s statute of limitations applies when there is a conflict between those laws. The Court’s opinion in McCarrell v. Hoffmann-La Roche, Inc., No. A-28-15 (Jan. 24, 2017), authored by Justice Albin, “completes the conversion from governmental-interest standard to the Second Restatement” for tort cases. The Court began that conversion in its opinion in P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132 (2008). The Court believes that its holding will “guide judicial discretion toward more predictable and just outcomes.” Continue reading “NJ Supreme Court Adopts Restatement Second Section 142 to Determine Applicable Statute of Limitations”

Appellate Division Holds OSHA Regulations Relevant in Negligence Case

Adrienne Rogove 

rogoveaThe recent decision of the New Jersey Appellate Division in Lopez-Montes v. Final Kote, LLC, Docket No. A-1592-14 (App. Div. Dec. 16, 2016) is instructive on the issue of how building codes and other regulations affect the liability of parties for construction site injuries. In Lopez-Montes, the plaintiff was a drywall subcontractor who was engaged to perform taping and spackling work on a construction project. The subcontractor responsible for installation of the sheetrock had previously supplied scaffolding at the job site, but no scaffolding was available when plaintiff was performing the taping and spackling work. Plaintiff stated that he objected to using a ladder due to safety concerns, but was told to use the ladder anyway. Continue reading “Appellate Division Holds OSHA Regulations Relevant in Negligence Case”

A Standing Hurdle in the Emoluments Clause Suit against President Trump

Ethan Simon

simonLess than a week after President Donald J. Trump took the oath of office, a public interest group brought suit against him in federal court. In Citizens for Responsibility and Ethics in Washington v. Trump, No. 17-458 (S.D.N.Y. Jan. 23, 2017), Plaintiff “CREW,” a nonprofit, nonpartisan corporation committed to “reducing the influence of money in politics,” alleged that President Trump’s business ties create conflicts of interest that violate the Foreign Emoluments Clause of the Constitution.

President Trump’s business dealings have been the subject of intense debate since he announced his candidacy for President in June 2015. Some have questioned how President Trump can oversee and implement policy when many decisions central to that policy could directly impact—or be impacted by—his financial interests. CREW is one organization concerned with conflicts of interest that could arise as a result of the President’s role in foreign relations.  In its lawsuit, CREW seeks declaratory and injunctive relief against any current and future violations of the Foreign Emoluments Clause. Continue reading “A Standing Hurdle in the Emoluments Clause Suit against President Trump”

Third Circuit Recognizes “Subgroup” ADEA Disparate-Impact Claims

Anna D. Stockman

Anna D. StockmanThe Third Circuit’s January 10, 2017 decision regarding an employer’s age-based liability under the Age Discrimination in Employment Act (“ADEA”) should serve as a call to action to employers to evaluate and review their policies to ensure that they do not inadvertently violate the ADEA by discriminating against individuals who are in “subgroups” over 40 years old.

Most employers know that the plain language of the ADEA protects “individuals who are at least 40 years of age,” and its disparate impact provision prohibits an employer from “adversely affect[ing an employee’s] status . . . because of such individual’s age.” But in Karlo v. Pittsburgh Glass Works, the Third Circuit made employers’ lives a little more complicated by holding that “‘subgroup’ disparate-impact claims are cognizable under the ADEA.” In other words, the Third Circuit held that under the ADEA, employees in a subgroup older than 40 years old—in Karlo, the subgroup of employees was 50-and-older—can bring disparate impact claims against their employer alleging that they were “disfavored relative to younger employees,” even if the younger employees were 40 years old or older. Continue reading “Third Circuit Recognizes “Subgroup” ADEA Disparate-Impact Claims”