Well that was a fast weekend, wasn't it?

Mine was uneventful, filled as it always is with windsurfing, Bolero, amateur photography, certain mixed drinks and of course careful study of the Book of Proverbs.

Boy, that King Solomon sure was a shmartie, huh? For example, he said things that even apply to the practice of law, such as:

Better is the poor that walketh in his integrity, than he that is perverse in his lips, and is a fool.

Be honest in your dealings with others.

Or this:

A good name is rather to be chosen than great riches, and loving favour rather than silver and gold.

Your integrity is worth more than money.

He that walketh with wise men shall be wise: but a companion of fools shall be destroyed.

You are judged by the company (and partners) you keep.

I was thinking about King Solomon's writings as I saw Mark Cheskin discussing how to lay people off in today's paper:

Advance notice certainly is the kinder way to fire, said Mark Cheskin, an employment lawyer with Hogan and Hartson in Miami, but managers need to balance that against other considerations.

For example, will the laid-off workers remain productive knowing their employment comes to an end in a few weeks or months? Could they use the time to steal customers away for a new employer?

''In most instances, making the day of termination the last day of employment in the workplace is a best practice,'' Cheskin said.

These are difficult issues, and I think there are practical reasons why Mark's point is valid.

Still, I found Shareef Malnick's justification for his firing of The Forge staff to be less than convincing:

When Shareef Malnik decided to close his landmark Miami Beach restaurant for renovations, he wanted to be sure service remained top-notch until the very last customer was served.

So he said nothing to most of the employees who worked an overnight party in late April. After the last dish was cleared, Malnik e-mailed the restaurant's 100 employees with the news that The Forge would be closing for six months and they would no longer have jobs.

Most received no severance.

So he (1) didn't tell people to start looking for a job; (2) fired them suddenly by late-night email; and (3) didn't pay severance to most of his staff.

But he did it all for his customers!

Is there something wrong with this story? According to the great columnist Joan Fleischman, Malnick plans to sink $3 to $5 million over the next few months in renovating the restaurant.

Is there anyone else in town spending that kind of money on a restaurant? Who would finance that right now?

Also, at the same time he shut down his restaurant, he is also selling his $10 million mansion.

Is this the right time to sell your house?

I can understand doing one or the other, but both together (and no severance!) suggests there may be more to this story than Malnick is letting on.

Well kids it's time to take a deep breath and breathe breathe breathe, in and out, visualize, close your eyes and inhale slowly as you imagine yourself as a cork on the ocean, drifting ever so slightly across a judicial sea, a calm and peaceful sea, where there are frolicking dolphins and rainbows and lollipops and Judge Schwartz and.....

Hi, I see you're back.

Well let's just jump right in and take a peek at this week's wonderful world of written utterances:

BIV v. De Saad:

This is an interesting case involving a former bank VP who had been indefinitely "suspended" due to a little matter of allegations that she helped launder $4 million in drug proceeds.

After an acquittal on money laundering and conspiracy, she wound up pleading to a minor money structuring charge and then sued (via an assignment to her criminal defense counsel) for past wages and indemnification from the bank.

Judge Scola granted summary judgment to de Saad, and the bank, represented by the very competent Carol A. Licko over at Hogan & Hartson, took it up on appeal.

Given that there appears to be a Delaware case right on point, Judge Suarez writing for the Court affirmed on the indemnification:

We follow the Delaware court’s holding and likewise find that the trial court correctly granted final summary judgment in favor of de Saad and Beeler on the statutory indemnification claims, as de Saad was prosecuted “by reason of the fact” that she was an director, officer, employee, or agent of the corporation and was acquitted because she was “successful on the merits or otherwise.”

It's on the breach of the employment contract that things get...err... interesting.

The Court affirmed this piece as well, holding:

BIV suspended her without pay and relies on the personnel manual which specifies grounds for suspension of an employee when certain charges are pending for clarification. The Manual provides for suspension, but only until the charges are clarified. It does not provide for indefinite suspension. As de Saad points out, the term “clarification” is defined as “to make clear or easier to understand.” Webster’s II New Collegiate Dictionary 206 (2001). We do not equate the meaning of clarification to be the same as the meaning of resolution or disposition. Certainly, the charges against de Saad were clarified, if not by the United States’s filing of the Second Superseding Indictment, they were clarified by BIV’s findings in its own internal audit after de Saad’s indictment. Once the charges against de Saad were “clarified,” BIV had two options under the Contract. It could either pay her the compensation as required under the contract or terminate her under one of the justified reasons for termination under the Contract. BIV did neither.

But no no no says Judge Schwartz, specially concurring:

I concur as to the result only in the court’s disposition of the breach of contract issue. I do so without specifically ruling on – because the bank did not make the argument either below or on appeal – the possibility that the legal effect of the employer’s actions in “suspending” de Saad without pay amounted to what would have been an appropriate discharge for cause and should have been treated as such, notwithstanding that it was called something else.

In other words, even though the bank, represented by very able counsel, never argued below or on appeal that the indefinite "suspension" was an effective (indeed, appropriate) termination for cause disguised by another name, the Judge thinks it is nonetheless possible.

The Judge continues:

Because such a discharge would have been fully justified by the contract and the facts of the case, and because the mere unfortunate, but insignificant use of a euphemism has resulted in de Saad’s being paid at her contract rate for years of no work after she could have and should have been (and probably was) fired, it seems to me that we may have upheld a serious wrong.

This special concurrence raises a few questions.

Is a contractual term -- "suspension" -- in a personnel manual truly a "mere unfortunate, but insignificant....euphemism."

From the majority opinion, I thought the contract provides a mechanism for three stages of employment -- suspension, reinstatement, or termination.

Is there another, more euphemistic category of "termination by indefinite suspension" in the contract somewhere?

Also, if you believe the discharge was "fully justified by the contract and the facts of the case," and that "we may have upheld a serious wrong," then why concur as to the result only (affirming the trial court sj on breach of the employment contract)?

I also really like footnote seven:

Quite coincidentally, the following appeared in a recent article about an erring teacher: “Without discussion, board members suspended [her] without pay
Tuesday – an effective termination . . . .” Patricia Mazzei, Teacher Accused of Pushing Boy is Fired, Miami Herald, August 19, 2009, at 4B (emphasis added).

That certainly is quite coincidental -- given that it just happened to appear in the newspaper recently, is not part of the record below or on appeal and does not appear to constitute evidence or authority of any kind.

(I appreciate that the thought here is that everybody knows a suspension is a form of firing, it even just randomly appeared in the paper the other day with the term used in this very context.)

I actually enjoyed footnote seven so much I believe it may constitute a basis for reconsideration -- in fact, I hereby volunteer to draft an amicus on behalf of Ms. Mazzei, clearly setting forth her view of suspension vs. termination for cause and how her recent article should inform the facts of this case.

Carol, are you listening?

It was nice seeing someone intelligent behind the Presidential podium last night, attempting to answer difficult questions with some sense of context, history, reality, and informed judgment. Whether any of it will work, however, is another matter....

Meanwhile, DBR's Alana Roberts works the endless well of Akerman rumors and speculation and finds some non-equity partners are getting all Carvered-Up:

Akerman Senterfitt has reported a dramatic 30 percent drop in its non-equity shareholders, capping off a difficult year marked by rapid turnover, the embarrassing collapse of a merger and the revelation that it missed its budget.

Other than that, though, things are just peachy!

And over at Hogan & Hartson they have frozen associate pay and are trying to figure out a way to get rid of their secretarial staff....nicely:

Hogan & Hartson is the latest firm looking to trim its legal staff, but it hasn't enacted layoffs.

Instead, the Washington-based firm offered buyouts on Monday to about 240 of its legal secretaries and word processors. Staff and associate layoffs have become commonplace at law firms in the past six months, but Hogan & Hartson is among the first to encourage staffers to leave voluntarily.

"In the end, I think people are going to feel pretty good that the firm gave people a choice," said Hogan & Hartson Chairman J. Warren Gorrell Jr. The buyout offer has been extended to secretaries and word processors who have been with the firm for at least five years. Those who choose to accept the buyout will receive four weeks of pay, plus an additional week of pay for every year they spent with the firm. The buyout offer is more lucrative for longtime secretaries, who generally make more money than recent hires.

Everyone knows longtime secretaries at big firms are notoriously tough survivors, who are not pushed around easily and have lots of ways of exacting vengeance if they feel mistreated or under appreciated.

Better have a runner taste that coffee, Mr. BigFirm BigShot -- better yet, pour it yourself.

Oh hail I'm not done yet this morning. Here's my ode to you beleaguered BigFirmers, sung to the tune of Joni's "Both Sides Now":

Tears and fears and feeling proud
To say "You're Fired" right out loud
Dreams and schemes and declining profits-per-partner
I've looked at life that way

But now old friends are acting strange
They shake their heads, they say I've changed
They question why my billables went down
And why I don't originate

I've practiced law from both sides now
From win and lose and still somehow
It's the BS from the managing partner I recall
I really didn't know he was such a heartless jerk after all

I've practiced law from both sides now
From up and down, and still somehow
It's that crap from that jerkoff in my exit interview I recall
I really don't like this place after all

Hang in there, folks!