On October 1, 2018, Massachusetts’ new noncompete law for employers and employees goes into effect. This law significantly limits the use of noncompete agreements within the Commonwealth, and incorporates additional unique wholesale changes. Below are highlights of certain provisions of the new law, along with recommendations on how employers can address their existing and future noncompete agreements to comport with the new law.
On August 28, 2018, in Young Man Kim et al. v. M&T Bank, Civil Action No. 17-11810 (ES) (MAH), the United States District Court for the District of New Jersey (Hon. Esther Salas, U.S.D.J.) issued a Memorandum and Order granting PIB Law’s motion to dismiss a putative class action filed by multiple plaintiffs against M&T Bank.
Recently, several New York Courts have rendered decisions addressing whether Statute of Limitations concerns affect whether a party can maintain an action, or whether a dismissal was merited.
On July 2, 2018, a federal judge in California denied a defendant’s motion to dismiss a federal government’s wire fraud indictment on the basis that it was time-barred. See United States v. Bogucki, 18-cr-00021. The defendant, Bogucki, a trader at Barclays Bank, was alleged to have deceived Hewlett Packard in a 2011 options trade. In January 2018, the government filed an initial indictment charging Bogucki with one count of conspiracy to commit wire fraud and six counts of substantive wire fraud. In filing the original indictment, the government relied upon a tolling order it had obtained from the Court pursuant to 18 U.S.C. 3292 based upon the government’s assertion that evidence the government needed was in a foreign country. Thereafter, the Department of Justice closed its investigation of Barclays in return for certain conditions in a Declination Letter. In consideration for the government’s agreement not to prosecute, Barclays agreed to pay over $12 million in combined restitution and disgorgement. The government subsequently filed a superseding wire fraud indictment against Bogucki. In filing the superseding indictment, the government dropped its reliance on the tolling order and instead stated that it was solely relying on the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), 18 U.S.C. 3293(2), which provides for a 10-year statute of limitations for wire fraud charges “if the [charged] offense affects a financial institution.”
On June 28, 2018, the Securities and Exchange Commission (the “SEC”) voted to propose amendments to the rules governing its whistleblower program. The whistleblower program was established in 2010 as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act. It added Section 21F to the Securities Exchange Act of 1934 (the “Exchange Act”), establishing the Commission’s whistleblower program. The public comment period is for 60 days following publication of the proposing release in the Federal Register.
The statewide Practice Rules of the Appellate Division will come into effect on September 17, 2018, enacting numerous changes including reducing the time to perfect an appeal from nine months to “within six months of the date of the notice of appeal or order granting leave to appeal,” except where the court has directed that an appeal be perfected by a particular time. 22 NYCRR 1250.9(a).
On June 21, 2018, the Honorable Loretta A. Preska, U.S. District Judge for the Southern District of New York, found that the structure of the Consumer Financial Protection Bureau (“CFPB”) is unconstitutional. Judge Preska dismissed the CFPB as a plaintiff from the subject litigation, after holding that the CFPB lacked the authority to bring claims against the defendants under the Consumer Finance Protection Act (“CFPA”). This decision directly contradicts the District of Columbia Circuit’s January 31, 2018 ruling in PHH Corp., et al v. Consumer Financial Protection Bureau, which upheld the structure of the CFPB and found that the Dodd-Frank Wall Street Reform and Consumer Protection Act – which shields the Director of the CFPB from removal without cause – is consistent with Article II of the Constitution.
On June 16, 2018, the White House announced that President Trump intends to nominate Kathy Kraninger, an associate director of the Office of Management and Budget (“OMB”), to be the next director of the Consumer Financial Protection Bureau (“CFPB”). Kraninger would replace her boss at OMB, Mick Mulvaney, who has served as acting director of the CFPB since November. Mulvaney’s term as acting director ends on June 21, but he is permitted to continue to lead the bureau until a successor is confirmed under federal personnel rules. If a permanent director had not been nominated, Mulvaney would have been required to leave his post this month.
The California Court of Appeal for the Second District issued a ruling in Pebley v. Santa Clara Organics, LLC; et al. Case No. B277893, which permits a plaintiff with available medical insurance, who nonetheless elects to treat an injury on a lien basis, to introduce the full amount billed under the lien as evidence of medical damages regardless of the earlier holdings in Haniff and Howell. The plaintiff may do so even though the same quality of care could be obtained through his or her medical insurance for substantially less. Of great import, the Pebley Court excluded all evidence of Pebley’s available insurance under the California Evidence Code as likely to be misleading or prejudicial to the jury’s determination
On June 6, 2018, the Consumer Financial Protection (CFBP) disbanded its Consumer Advisory Board (CAB) as well as two other advisory councils, the Community Bank Advisory Council and the Credit Union Advisory Council. The 60 plus members of the three committees were told during a conference call that they were being disbanded and restructured with new membership.