Yesterday we looked at a California federal court decision in Martensen v. Koch, in which ex-Oxbow executive Kirby Martensen has sued billionaire William Koch, alleging kidnapping, false imprisonment, conspiracy, and other claims related to his alleged treatment at the hands of Oxbow employees at the Bear Ranch in Colorado. Specifically, we looked at what the decision means in terms of whether a court can maintain personal jurisdiction over an out-of-state defendant; in the Martensen case, the clear take-away is that committing any portion of an alleged wrong within a state counts as having committed the wrong within that jurisdiction. So even though most of Kirby Martensen’s kidnapping and false imprisonment allegations relate to conduct that took place in Colorado, because he was allegedly placed on a private plane owned by Oxbow and flown to Oakland, California before being released, the court found that (for purposes of personal jurisdiction) Martensen’s alleged false imprisonment “that began on [Koch]’s private ranch by [Koch]’s agents [in Colorado] continued unbroken until [Martensen]’s release in Oakland, California,” and thus gave rise to personal jurisdiction over Koch in California.
Personal jurisdiction, however, is only the first step in the process of figuring out where you can and should be sued. Personal jurisdiction determines whether a court has any power over you at all, and is based on the principle – expressed in depth in yesterday’s post – that if you have never set foot in the state of Wyoming, you cannot be compelled to appear in Court in Wyoming.(*) But just because a state has personal jurisdiction over you doesn’t mean that state is the best place to handle a dispute. This is the question of venue. Read on.
As you probably know, we here at Suits by Suits have been fascinated by the strange case of Kirby Martensen, the former Oxbow Group executive who alleged that he was kidnapped and falsely imprisoned by billionaire William Koch. We teased for you last week that Koch’s motion to dismiss, to strike, and in the alternative to transfer venue of the case from California to Colorado was denied, and the case will proceed.
Now, we’ve gotten our hands on the judge’s decision and had a chance to review it in depth; particularly if you’re a civ pro geek like me, it’s worth a read. Even if you’re not, the decision helps any potential litigant -- and really, isn’t that all of us? -- understand where we can expect to sue or be sued. Read on....
As a blog focused on employment issues, we’d be remiss if we didn’t at least note that the week that’s ending included May Day, which has long been known as International Workers’ Day. Although this day’s somewhat curious history includes support from Marxists, Socialists, and the Catholic Church, it really got its start after a bloody bombing and riot in Chicago’s Haymarket Square.
Fortunately for us at Suits-by-Suits, the employment disputes we deal with most – mainly executives and the companies that employ them – don’t lead to bloody confrontation, only (sometimes) litigation. Though even litigation sometimes has its moments.
Anyway, here’s what has come over that transom that has piqued our interest:
In the first part of this series, we raised the question of whether a public employee’s rights under the First Amendment to the Constitution – primarily the right to speak freely on public issues – is limited by the fact that she works for the government. It’s the curious mix of the Constitutional rights we all enjoy, and the duty of the government to act as an employer when it hires and manages people to get things done. We looked briefly at how the Supreme Court addressed this issue: in short summary, public employees keep their rights to free speech on issues of public concern – but when they are speaking as part of their official duties, or their speech creates a disruptive atmosphere for the government agency, the employee can be fired for speaking out.
Two recent cases dealing with deputy attorneys-general illustrate this difficult intersection between public employment and speech. In both cases, the attorneys – a breed not known for silence – lost their jobs for speech: one for speaking out, and the other for refusing to speak when she was told to do so. Let’s see how their cases against their public employers are faring.
Some days when I look over the possible stories here, they’re filled with disputes between attorneys. It almost makes me think that my fellow editors at Suits-by-Suits and me are the only attorneys that can get along. Most of the time, at least.
Because if you are, or have ever dealt with, Attornicus Americanus, then you know two things about our profession: 1) we don’t like to be told to be quiet when we have something important to say; and 2) even worse, though, is telling us we have to say something that we don’t want to say. The two cases at issue in this two-part series feature lawyers working for the government who were in just those situations, and were fired. We look at recent interesting developments in their claims for retaliation. In passing, too, we’ll note what one of these lawyers was fired for saying, and what the other lawyer was fired for refusing to say.
All in all, these are posts about whistleblowing and retaliation claims by public employees – and not just attorneys, either. The public nature of the employment here is important because government employees keep some of their First Amendment rights to free speech when they go to work for the government. The government employer, for its part, has some limited right to limit its employees’ speech in order to get its mission accomplished. So before we turn to the two cases, a brief tour through the First Amendment rights of public employees is in order.
April showers bring May flowers, which, as the old joke goes, usually bring these. At Suits by Suits, however, April brought a mix of interesting stories involving non-compete agreements, the mechanics of employment contracts, and all sorts of other topics:
Who doesn’t like all-expense-paid trips to the Atlantis Resort, the Venetian Hotel, or the Wintergreen Resort? A recent decision from a federal court of appeals gives us the answer: Jeffrey Wiest, an accountant for Tyco Electronics Corporation.
In Wiest v. Lynch, the Third Circuit tackled Wiest’s whistleblower claim, brought after he refused to approve corporate expenditures for conferences at luxurious lodgings.
Batman has been sued. Okay, not Batman, but the guy who played him, Mr. Mom and Beetlejuice in the movies – Michael Keaton. In this lawsuit filed earlier this month in federal court in Illinois, the company that produced the movie The Merry Gentleman (if you’ve never heard of it, that’s the company’s point) alleges that Keaton breached agreements to direct and act in the movie by failing to deliver a satisfactory first cut of the movie on schedule, by working at cross purposes to the company by promoting his own cut of the film to officials of the Sundance Film Festival, and by failing to perform other post-production directorial duties or to assist in promoting the movie. According to the company, if Keaton had performed his contractual duties, then the Christmas movie would have been released in time for the 2008 Christmas season, rather than May 2009, and, presumably, would have grossed more than the $350,000 than it did at the box office.
Assuming that the company’s allegations that Keaton breached the contracts are true and assuming that Keaton’s breach (rather than market forces or some failure by the company) caused the movie to flop, what are the company’s damages? This question is relevant not only to Keaton and The Merry Gentleman production company, but to all parties to a broken contract in which one party had promised to provide employment services to another party in exchange for compensation. In other words, the question is relevant to all contractually-based employment disputes – a frequent topic on Suits by Suits. The answer may not be what you think, especially if you think that, as damages, Keaton should just give back the compensation that the company paid him.
Late last week, Rutgers announced that it reached a $475,000 settlement with former men’s basketball coach Mike Rice and that no cause for Rice’s termination would be provided. Recently-publicized videotapes show Rice at practices hitting, kicking and throwing basketballs at his players and taunting them with obscenities and anti-gay slurs (not to be confused with this shocking video of Middle Delaware State women’s basketball coach Sheila Kelly throwing toasters at her players). The announcement came more than two weeks after Rutgers President Robert Barchi told reporters that Rice was fired, but not for cause. And that announcement came several months after Rice was suspended from work for three days, following an internal investigation by outside counsel, resulting in this report.
Today's super-sized Inbox covers all the recent news in suits by suits:
As the regulatory and business environments in which our clients operate grow increasingly complex, we identify and offer perspectives on significant legal developments affecting businesses, organizations, and individuals. Each post aims to address timely issues and trends by evaluating impactful decisions, sharing observations of key enforcement changes, or distilling best practices drawn from experience. InsightZS also features personal interest pieces about the impact of our legal work in our communities and about associate life at Zuckerman Spaeder.
Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.
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