Smooth Transitions : Rob Radcliff : Texas Non-Compete Lawyer & Attorney : Langley Weinstein LLP Law Firm : Dallas Employment & Employee Departures : Smooth Transitions Law Blog

The Case

The Fifth Circuit affirmed the opinion of a magistrate judge in the Southern District of Texas that found a law firm owed a search firm for the introduction of a group of lawyers the firm hired. Essentially, the search firm made the initial introduction, but a deal was not reached until some time later.     

The search firm argued that it was entitled to a fee because it made the initial introduction. The Court agreed. The opinion is interesting because it discusses whether or not the search firm was a “procuring cause” of the hiring. The Court's definition of procuring cause:

cause that in the natural and continuing sequence, unbroken by any independent intervening cause, produces the [hiring], without which the [hiring] would not have occurred

 

The Court noted that though there was testimony that the hiring was independent of the search firm’s work, there was also sufficient evidence to show that the search firm was a procuring cause and was entitled to a fee.

Lessons Learned 

The takeaway for search firms and recruiters on this opinion is to continue to monitor and follow their clients after negotiations.  A deal may be looming in the near future.  

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In cases with significant email traffic lawyers often use applications that sift through emails and documents using specific search phrases and terms.  Usually, the search terms and phrases tie to significant issues to the case or dispute.  Recently, the search terms used by the lawyers investigating the Lehman Brothers debacle were published. Those lawyers were charged with going through approximately 700,000 plus documents which totaled somewhere around 8 million pages.  They used a variety of search terms/phrases but the search that stood out was this one:

Shocked or speechless or stupid* or “huge mistake” or“big mistake” or dumb or “can’t believe” or “cannot believe” or “serious trouble” or “big trouble” or
unsalvageable or “too late” or ((breach or violat*) w/5 (duty or duties or obligation*)) or “nothing we can do” or uncomfortable or “not comfortable” or “I don’t
think we should” or “very sensitive” or “highly sensitive” or “very confidential” or “highly confidential” or “strongly disagree” or “do not share this” or “don’t share this” or “between you and me” or “just between us” or ((can’t or cannot or shouldn’t
or “should not” or won’t or “will not”) w/5 (discuss or “talk about”) w/5 (email or e-mail or computer)) or should w/5 (discuss or talk) w/5 (phone or “in person))

There are countless examples in the report.  As discussed here before, common sense is usually the best approach to determining whether your email is environment appropriate, but there is also a second level of screening.  I'll call it the "smoking gun" screen. How would you feel if the email you just sent was put up in front of a jury and you were cross-examined on its contents?  A far stretch in most circumstances but an issue that should always be in the back of the author's mind. 

Consideration of what is placed in an email should go beyond avoiding foul language and crude humor.  There are simply some issues that should not be addressed in electronic communications.  It ultimately goes back to common sense - there is no written policy that can provide sufficient guidelines.  Sometimes a phone call or even face-to-face meeting makes more sense than an email that lacks context and fails to adequately convey the issue.

(h/t Jacob Goldstein with National Public Radio)

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It's been a few weeks since I've discussed BofA but once again the company is involved in litigation, this time over a non-compete.  This time, BofA is on the receiving end of a lawsuit filed by Robert McCann, former head of Merrill Lynch's wealth management unit.  McCann's lawsuit challenges  the enforceability of a non-compete he entered into with Merrill.  The parties are currently in settlement negotiations.  McCann is reportedly going to work for UBS.

McCann's strategy of attacking the non-compete with a lawsuit  is often recommended but rarely used by departing employees.  Generally, most employees don't have the war chest necessary to take on their former employer and institute costly litigation.  Most employees would rather wait to see if the former employer is going to take legal action.  McCann most likely and rightfully assumed BofA would sue if he went to work for UBS.  Instead of defending a lawsuit he initiated it and now looks to be close to a settlement.  This can be a solid strategy in the right situation.

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