The VLW Blog

Here is today’s tip for a happy workplace: Don’t threaten to have police remove the company HR director, your superior, from a company-funded holiday lunch.

If you do deny admission to the festivities, don’t expect Sarbanes-Oxley to provide protective cover if you’re fired.

In Livingston v. Wyeth Inc., a 4th Circuit case reported March 24, plaintiff Mark Livingston was a training director at Wyeth’s Sanford, N.C. facility. The company had agreed to overhaul staff training procedures for safe manufacturing practices after the FDA seized adulterated products from Wyeth plants in New York and Pennsylvania. Livingston had an ongoing dispute with Sanford plant management over its readiness to implement the new training and compliance procedures.

Livingston had butted heads with management before and the local HR director had placed him on a “personal improvement plan” with specific expectations for upgrading his performance. Livingston alleged the director began “stalking” him at staff meetings.

The conflict came to a head on Dec. 13, 2002, at an off-site company-funded holiday party when the HR director showed up to extend seasonal greetings. Livingston told the hapless HR guy (think “Toby” on “The Office”): “You’re not invited. We have a gift exchange. You have no gift. We have limited food.” Although there was some factual dispute about how the request to leave was phrased, it was undisputed that Livingston threatened to call the cops. Six days later he was fired.

Livingston sued the company under SOX’s whistleblower protections in 18 U.S.C. § 1514A, claiming he was fired because of his complaints about Wyeth’s inability to timely implement new training procedures.

The 4th Circuit affirmed summary judgment for Wyeth.

“[N]ot one link in Livingston’s imaginary chain of horribles was real or was in the process of becoming real,” wrote Judge Paul Niemeyer. Livingston’s prediction that delays in training would not allow for timely verification by internal compliance auditors proved wrong, and no reasonable employee in Livingston’s position could have believed these matters would be a violation of securities laws.

Not so fast, said dissenting Judge Blane Michael.

“Livingston formed a reasonable belief that Wyeth was intentionally failing to comply with a consent decree that arose out of regulatory action against Wyeth” by the FDA, Michael wrote. Company management threatened Livingston with termination unless he retracted critical statements and stopped reports of noncompliance at the Sanford facility. He made an internal complaint to the company’s ethics and regulatory compliance office, saying he was concerned about the effect of a cover-up on company shareholders.

That should have been enough to get Livingston past summary judgment, Michael said.

Stop me if you’ve heard this one before: Really, really rich older guy marries a much younger woman. His relatives don’t like the situation so they take legal action. Acrimony ensues.

Okay, the late Anna Nicole Smith isn’t starring in this particular movie. It’s a just-completed case in South Florida. A lawyer friend of mine who was on the winning side sent along the item from the Miami Herald.

How many first marriages take place at age 92? Alfred Kreisler, a life-long bachelor, a lawyer and an industrial-claims judge worth more than $22 million, waited a long time to walk down the aisle. So long that when it finally happened, they had to wheel him down the aisle.

Last October, he married a woman named Yvette Penichet, who was 43 and described by the Herald as “a Miramar divorcee.” Alfred’s older brother Seymour, age 95, was in the other room when the officiating rabbi wed the happy couple and signed the Florida marriage license.

Just two days before the wedding, Alfred parked $7.7 million in a joint bank account with Yvette. According to court testimony, Yvette sought on her wedding day to withdraw $400K to buy a Rolls-Royce, but the bank wouldn’t clear the funds. Right after she and Alfred said “I do,” she wired $30,000 to her son.

Two of Alfred’s nieces went to court, aided by my buddy and three other lawyers. They claimed Alfred “did not have the capacity to manage his own affairs or marry.” A judge appointed the nieces as their uncle’s co-guardians and took Yvette off the bank account.

Last week in a document called an “agreed final judgment,” a different Miami-Dade circuit judge pulled the plug, declaring the marriage void. The parties settled out the dispute. Yvette got to keep the 30 grand; she returned her wedding ring and waived any claim to Alfred’s millions.

The nieces signed a “non-prosecution form,” pledging not to press charges or to call in the authorities to investigate any claims of elder abuse.

And all is well that kind of ends well: The brothers Kreisler, Alfred and Seymour, are now the residents at an assisted living facility in South Florida, reports the Herald.

The Associated Press reports that Lt. Gov. Bill Bolling will announce this afternoon that he will seek reelection as lieutenant governor in 2009.

Bolling’s announcement will leave Attorney General Bob McDonnell an open field for the Republican nomination for governor. Former Gov. and Sen. George Allen announced earlier that he would take a pass on the race.

Two Democrats are seeking their party’s gubernatorial nod: Sen. Creigh Deeds of Bath County and Del. Brian Moran of Alexandria.

How does a lawyer know when a judge is annoyed at him? Maybe it’s when the judge lays out his beef in a first-page footnote in a published opinion. In this decision, Chief U.S. District Judge James Jones pointedly criticizes the policy of the Western District prosecutor of opposing every single crack sentence reduction.

The judge notes that the Western District is fourth in the nation in defendants qualifying for crack sentence reductions (the Eastern District is first) and states, “[T]he government’s blanket objection in all cases does not assist the court … and, in fact, hinders it.”

Ouch.

Noncompete cases always seem to generate a great deal of interest when we feature them in the paper.

This week, we got a case that has a new twist. It was decided by Virginia Beach Circuit Judge Joe Canada.

The case involves three guys who partnered to start a martial arts studio.

Their cooperative agreement featured a clause that required two of them to pay a penalty for breaching the agreement with the third. If the two guys started their own martial arts school, without giving the third guy an opportunity to participate, they agreed to pay him $15,000.

Not surprisingly, the two guys did just that and the third guy sued, seeking $750,000.

Judge Canada found that while the clause did not neatly fit the definition of a noncompete clause, it nonetheless was valid and enforceable as a covenant not to compete.

To get a free copy of the full-text opinion in Miran v. Merullo, Today’s Top Opinion, please visit the Virginia Lawyers Weekly home page,
www.valawyersweekly.com .

Two sisters from Chesapeake found a gem in a box of Kellogg’s Frosted Flakes. It was a corn flake that was shaped like the state of Illinois.

So as any entrepreneur might, they put it up for sale on eBay, the grand online swap meet. The Daily Press has an account this morning.

The flake was going for 50 bucks when someone noticed the auction item. It was getting fat, probably phony, bids that drove the price to about $200,000.

Then eBay pulled the auction, citing rules against the sale of food. Who knew?

In a move that shows these young women might well have legal careers ahead of them, they read the rules and figured out a way around the problem, allowing them to sell their flake and stay this side of eBay’s requirements. Now you can go on the auction site and buy a coupon that entitles you receive their Illinois corn flake. Pretty clever. Right now the flake coupon is going for $138.50; the auction ends March 21, so you better hurry.

By the way, the Illinois flake has spawned a number of copycat auctions. For example, you can get a different corn flake shaped like Ireland or a Cheeto shaped like a dinosaur.

The Virginia Judicial Council sent to the Supreme Court of Virginia today a formal set of Rules of Evidence and a proposed Part Nine to the Supreme Court’s rules that would regulate access to private information in court records.

The proposed Rules of Evidence are the result of more than 20 years of off and on effort to develop a formal evidence code for Virginia. Massachusetts and Virginia are the only two states without such a code.

The proposed rules generally adopt the format of the Federal Rules of Evidence adopted in the mid-1970s, but most of the language of the rules, and the comments proposed for adoption with them, are from Virginia case law.

Kent Sinclair, the University of Virginia law professor who is chairman of the council’s advisory committee on rules, said the law of evidence in Virginia is buried in more than 1,000 published cases and scattered over a dozen sections of the Virginia Code.

The proposed Part Nine of the Rules of Court is likewise largely a synthesis of existing case and statutory law, according to Leslie M. Alden, the Fairfax Circuit Judge chaired the special committee appointed by Chief Justice Leroy Rountree Hassell Sr.

The rules start from the premise that “[court] cases are, as a general proposition, public.” However, much of their language focuses on exceptions to the general proposition and to concerns raised by the increasing availability of court records, and the often private information in them, over the Internet.

Hassell told the council that he expects the court to take some time before acting on the proposed rules

It’s tough to prove adultery as a ground for divorce in Virginia.

It helps to catch the wayward spouse emerging from his girlfriend’s home in his underwear.

In Toth v. Toth (VLW 008-8-071), a Fairfax Circuit Court said a wife proved adultery with evidence from a private investigator who observed the husband grocery shopping with his alleged paramour, coming and going from her home, staying late, and twice emerging from her home partially dressed, once in pants and no shirt and once in a t-shirt and boxer shorts.

As Judge Michael McWeeny recounted, the husband and his girlfriend went into her home at 5:54 p.m. on Sept. 3, 2006. Less than 45 minutes later he was seen coming out in only tee-shirt and boxer-style underwear. His wife “confirmed and identified the clothing as his underwear,” wrote the judge.

The husband took the Fifth.

Although the husband hadn’t appeared in the all-together, McWeeny put it all together and said the wife’s circumstantial evidence proved adultery.

What difference did it make? The husband, who was retired, wanted spousal support, but the court denied that request.

Ray Harron is back. Dr. Harron is well-known to lawyers who handle asbestos cases. He’s the West Virginia radiologist who made a fortune and a reputation as a reader of mass quantities of lung x-rays for asbestos and silicosis claimants. (This is Ray Anthony Harron of Bridgeport, WV — not to be confused with Roanoke neurologist Raymond V. Harron.)

According to the West Virginia State Journal, Harron this year finally filed responsive pleadings in a federal case where he is accused of racketeering and fraud. He had been “missing” for months as defendants sought to serve him with the suit papers. The Madison Record suggests that his “reappearance” took place in November.

The Supreme Court of Virginia has granted an appeal to litigants in Spotsylvania County who want to keep the terms of their wrongful death settlements a secret. The cases involve allegedly tainted heart medicine blamed for six deaths and four injuries. The Fredericksburg Free Lance-Star is pressing to have the dollar amounts of the settlements made public. Circuit Judge Ann Hunter Simpson agreed that the settlements should be public, but delayed disclosure pending appeal.