Tuesday, January 29, 2008

Smoking and the ADA

Corporate Social Responsibility

There is a recent article on Nike and how it has addressed labor issues at its suppliers. See R. Locke, T. Kochan, M. Romis & F. Qin, Beyond Corporate Codes of Conduct: Work Organization and Labour Standards at Nike's Suppliers, Vol. 146, International Labour Review (2007). Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=925273.

When Are Law Firm Partners Deemed Employees Under Federal Anti-Discrimination Laws

In Kirleis v. Dickie, McCarney & Chilcote, 2007 WL 2142397, 2007 U.S. Dist. LEXIS 75996 (W.D.Pa. July 24, 2007) the district court held that "defendant has 63 shareholders but . . . control is in fact concentrated on the small number of members of the Executive Committee." Based on that finding and the Supreme Court decision in Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (U.S. 2003), the court found that the plaintiff, a female lawyer and shareholder in the law firm, was an employee covered by Title VII of the Civil Rights Act of 1964 as well as the Pennsylvania Human Relations Act.

Smoking and the ADA

The Federal District Court in Alexandria, Virginia has a fascinating case scheduled for hearing on February 8. The case involves a lawsuit filed under the ADA by James Bogden against several restaurants in which he argues that because he has coronary artery disease and secondhand smoke can increase his risk of another heart attack, the restaurants, by permitting smoking, are discriminating against him on the basis of an alleged disability. See Bogden v. Harry's Tap Room of Arlington, Civil action No. 01178-LO-TRJ (E.D.Va). See also: Lainie Rutkow, John S. Vernick, Stephen P. Teret, Banning Second-Hand Smoke in Indoor Public Places Under the Americans With Disabilities Act: A Legal and Public Health Imperative, 40 CTLR 409, (December 2007).

Executive Compensation

Maybe Angelo R. Mozilo, CEO of Countrywide Financial Corp., heard the thundering hooves of judges like Judge James Rosenbaum when he decided to forego approximately $37.5 million in severance pay, fees and perks that he was scheduled to receive upon his retirement. Mr. Mozilo announced that in addition to cash severance payments, he has decided to forego $400,000 per year that he would have been paid under an agreement to consult the company in his retirement and also agreed to forego perks such as the use of a private airplane. Now, before anyone gets teary eyed about Mr. Mozilo's "losses", it is estimated that his payout, after foregoing the above, will exceed $110 million.

The Judge Rosenbaum decision to which I allude is his order of December 26, 2007 in In re UnitedHealth Group Incorporated Shareholder Derivative Litigation, 2007 U.S. Dist. LEXIS 94616 (D. Minn. 2007), in which he stated the following with respect to some $600 million after tax payments being made to the company's former CEO, Bill McGuire: Words such as "huge," "fantastic," "astounding," "staggering," or "astronomical," do not describe $1 billion. Such a sum can only be thought of as 'transcendant," or in terms of the gross national product of smaller members of the United Nations. Judge Rosenbaum froze McGuire's stock options valued at some $600 million after taxes, even though McGuire had earlier agreed to surrender $420 million in options and other benefits.


"I find baseball fascinating. It strikes me as a native American ballet - a totally different dance form. Nearly every move in baseball - the windup, the pitch, the motion of the infielders - is different from other games. Next to a triple play, baseball's double play is the most exciting and graceful thing in sports." - Alistair Cooke

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