Welcome back new and returning readers of Labor of Law, our weekly look at news and trends affecting the L&E community. On the clock this week: Noncompetes: Pharma companies face off • Is California's 'Dynamex' ruling retroactive? • Justices urged to take new ERISA case | Seyfarth will fight Sterling Jewelers class ruling • Who Got the Work

Tips and feedback are welcome. I'm Mike Scarcella in Washington. You can reach me at [email protected] and on Twitter @MikeScarcella. Thanks for reading!

 

 

 

Pharma Companies Face Off Over Employee Noncompetes

Lawyers for the pharmaceutical company Novo Nordisk Inc. were set to head to Boston federal district court this morning in a drive for a temporary restraining order stopping a former employee from joining competitor BioMarin Pharmaceutical Inc. Another hearing is set for Jan. 27.

Novo Nordisk is represented by Morgan, Lewis & Bockius, and Jones Day represents the former employee, Thomas Russomano, a sales official who left Novo Nordisk in January. The case in U.S. District Court for the District of Massachusetts is one of several related matters spotlighting an employee-hiring feud between the rival companies.

"This case was filed by Russomano as part of an orchestrated effort by BioMarin to systematically raid Novo Nordisk's hemophilia sales force to launch BioMarin's directly-competitive hemophilia therapies," Siobhan Mee and Sarah Butson of Morgan Lewis said in a recent court filing. Mee leads the firm's labor and employment team in the Boston office.

Russomano, the Morgan Lewis lawyers said, "will necessarily and inevitably use and disclose his confidential Information about Novo Nordisk's hemophilia business, and leverage the customer and stakeholder relationships he developed at Novo Nordisk on behalf of BioMarin, thereby wrongfully damaging Novo Nordisk's competitive advantage and customer goodwill."

For Russomano, Jones Day partner Christopher Morrison (at left) is a lead counsel, with associate Jenna LaPointe. Russomano, as the plaintiff in the Boston case, contends he has no noncompete obligation to Novo Nordisk.

"Novo has no legitimate interests to protect in this case. As a life-long hemophilia patient, he carried knowledge about the hemophilia patient community with him to Novo and he is entitled to carry it out," Morrison told the court.

Thursday's hearing is in front U.S. District Judge Allison Burroughs, and we'll report back on developments in the case.

 

 

California Justices Urged to Close 'Escape Hatches' for Employers

Plaintiffs lawyer Shannon Liss-Riordan (above) is pressing her argument at the California Supreme Court that its 2018 ruling in the Dynamex worker-classification case is retroactive. That's the ruling that made it harder for gig companies and other employers to classify their workers as contractors and not employees. The California legislature later codified the ruling in a landmark labor law.

"California workers, competitors, and the public at large, will continue to suffer as long as employers are able to evade their obligations under the wage law, and Dynamex's purpose will be undercut and its analysis weakened," Liss-Riordan said in her opening brief in the case Vazquez v. Jan-Pro Franchising International Inc.

"It is therefore vital for this court to settle these (unsettled) questions of state law in the wake of Dynamex, in order to enforce the California labor standards."

Jan-Pro's lawyers, led by Ted Boutrous and other lawyers at Gibson, Dunn & Crutcher, as well as Jeffrey Mark Rosin of O'Hagan Meyer, contend the retroactivity question is not so easily answered. They persuaded the Ninth Circuit in July to withdraw a prior opinion finding a "strong presumption of retroactivity" and grant the company's motion for a panel rehearing. —Cheryl Miller

 

 

 

Who Got the Work

>> A team from Wilmer Cutler Pickering Hale and Dorr, including Paul R.Q. Wolfson, represents Teachers Insurance and Annuity Association of America (TIAA) as an amicus party backing University of Pennsylvania in an ERISA case. Wolfson, co-chair of Wilmer's appellate and Supreme Court practice, told the justices: "This case is one of about twenty lawsuits in which plaintiffs have alleged that universities breached their fiduciary duties under ERISA by including certain investment options in their retirement plans and overpaying for services. Most of those cases, including this one, involve allegations regarding TIAA's investment products and fees. Because the decision below is erroneous and has far-reaching impacts for many of TIAA's clients, TIAA files this amicus curiae brief to urge the court to grant review." The Wilmer team at the high court also includes Claire Chung, Allison Schultz and Lori Martin.

>> Meanwhile, coming to the Supreme Court: Lawyers from Seyfarth Shaw, including Gerald Maatman Jr., plan to pitch client Sterling Jewelers Inc.'s claims against a class action to the justices in the coming weeks. Sterling's lawyers advised the Second Circuit this week that a petition was in the works. The appeals court in November revived a gender bias class, represented by lawyers from Cohen Milstein Sellers & Toll.

>> The county of Los Angeles has hired Miller Barondess LLP to petition the U.S. Supreme Court in a dispute about overtime wages. The Ninth Circuit in August ruled Los Angeles could be held liable for non-payment of overtime wages during a mandatory non-enforcement period the Department of Labor adopted. J. Mira Hashmall is counsel of record to Los Angeles.

>> Lawyers from Reed Smith, including Betty Graumlich and Mark Passero, represented M&T Bank in a $100,000 pregnancy-related discrimination settlement with the EEOC. A bank spokesperson told The Baltimore Sun: "We feel we went beyond the legal requirements to accommodate our employee in this case. We remain fully committed to providing all of our employees, including those with a disability, with a workplace where they feel valued, supported and able to reach their full potential." EEOC regional attorney Debra Lawrence and Maria Salacuse, supervisory trial attorney, advocated for the agency. Read the consent order here.

>> National retailer Best Buy has reportedly hired Sidley Austin to review allegations that the retailer's CEO, Corie Barry, "inappropriate romantic relationship with a fellow executive, who has since left the electronics retailer."

>> Orrick, Herrington & Sutcliffe represents Citigroup Inc. at the U.S. Supreme Court in a case alleging whistleblower retaliation under Sarbanes-Oxley. Richard Wolfram represents petitioner Erin Daly. The petition is on the court's Feb. 21 conference. Citigroup waived a response.

 

 

Around the Water Cooler

Greenberg Shareholder Accused of Sexual Harassment by Ousted Grammys Chief. Joel Katz, the founding chairman of Greenberg Traurig's global entertainment and media practice and the founding shareholder of the firm's Atlanta office, is at the center of sexual harassment allegations that rocked Hollywood this week. [Law.com] Howard Weitzman, a lawyer for Katz, told The Hollywood Reporter that he "emphatically denies" the claim and will "cooperate in any and all investigations or lawsuits by telling the absolute and whole truth."

Pay Equity, Impeachment Among Top Concerns for Directors and General Counsel in 2020. "A general counsel needs to be informed about how any changes can affect the company, how the company can respond to changes and how to assess any risks," Akin Gump's Kerry Berchem tells my colleague Sue Reisinger in a wide-ranging Q&A. [Law.com]

Minnesota Supreme Court Says Minneapolis' $15 Minimum Wage Can Stand. "The case revolved around the question of whether the Minnesota Fair Labor Standards Act prevents cities from setting their own, higher minimum wage rates than the state standards. Because employers would comply with the lower, state rate while paying the higher, city-mandated rate, there is no conflict, the court ruled." [Star Tribune] Read the ruling here. Robins Kaplan LLP represented the challengers.

How Lawyers Are Fighting Mounting Employer Troubles From H-1B Immigration Changes. More companies are even resorting to litigation to resolve disputes with the U.S. Citizenship and Immigration Services, which is part of the U.S. Department of Homeland Security, immigration lawyers said. "People who have worked in a profession for a dozen years are being told they are not in specialty occupations, and they often have to leave the United States," said Eric Bord, a business immigration partner at Morgan, Lewis & Bockius in Washington. [Law.com]

California Says Gig-Worker Law Doesn't Target Uber, Postmates. "California hit back at Uber Technologies Inc.'s and Postmates Inc.'s challenge to a newly enacted labor rights law meant to ensure gig workers receive employment protections. The state said in filing Friday in federal court in Los Angeles that the law, AB 5, doesn't target app-based companies and doesn't violate their constitutional rights, as the companies claim." [Bloomberg]

 

 

Notable Moves and More

>> DLA Piper has hired Kim Askew (at left) as an employment partner in Dallas. Askew arrives from K&L Gates. Askew "is widely regarded as one of the top employment and commercial litigators in Texas," said Brian Kaplan, who leads DLA Piper's U.S. employment practice. Marc Katz, managing partner of the firm's Dallas office, said: "As we continue to expand our presence in Dallas, Kim will play a key role in allowing us to increase our service offerings and better respond to the needs of clients."

>> Perkins Coie said Sarah Flotte has joined the Chicago office as a labor and employment partner. Flotte joins from Michael Best, where she was co-chair of the Higher Education industry group. Flotte is the seventh addition to Perkins Coie's labor and employment team since July.

>> Jackson Lewis said principals Katessa Charles, Stacey Cooper, John Exner IV and Patrick Stokes have joined the firm in California. Charles and Exner are based in Los Angeles, Cooper in San Diego and Stokes in the recently opened Silicon Valley office.

>> NLRB General Counsel Peter Robb has appointed Dolores Boda as special advisor. Boda, a labor board employee for more than 20 years, earlier served as deputy to the assistant general counsel in the division of operations-management.