If You Want Your Restrictive Convenants To Last, They Should Say So

A Restrictive Covenant is a specific type of covenant in which someone agrees to be restricted by a contract. The most common type of restrictive covenant is one in which a former employee is restricted from working in his or her field for a specific time and within a specific area after leaving employment. Restrictive covenant agreements often contain "tolling" provisions which extend the duration of the covenants by the time of any discovered violation. However there are occasions where employers do not include tolling provisions in their restrictive covenant agreements, but nevertheless subsequently request that a court use its discretion to extend the duration of those covenants by the time of  the discovered violation. A recent decision from the U.S. Court of Appeals for the First Circuit highlights the danger in not including a tolling provision in a restrictive covenant agreement.

In EMC Corp. v. Arturi, ___ F.3d ___ (1st Cir. Aug. 26, 2011), EMC requested a preliminary injunction prohibiting its former employee from using its confidential information, from competing with EMC and from soliciting EMC customers. The trial court issued a preliminary injunction prohibiting the disclosure of confidential information. However, the trial court refused to issue an injunction prohibiting the former employee from competing or soliciting EMC's customers because the one-year time periods in the restrictive convenants in the employment contract had already elapsed and there was no tolling provision to extend them. On appeal, the First Circuit affirmed the trial court's refusal to extend the non-compete and non-solicit provisions absent a tolling provision. The court explained that under governing state law, "when the period of restraint has expired, even when the delay was substantially caused by the time consumed in legal appeals, specific relief is inappropriate and the injured party is left to his damages remedy." The First Circuit also specifically pointed out that "EMC could have contracted...for tolling the term of the restriction during litigation, or for a period of restriction to commence upon preliminary finding of breach. But it did not."

Thus, this case serves as a cautionary reminder to employers to include tolling provisions in their restrictive covenant agreements if they want to increase the likelihood that a court will subsequently extend the duration of those restrictive covenants by the period of any violation.

If you are interested in receiving a copy of this decision, you may contact me at miamipandi@comcast.net or motero@houckanderson.com.

World Maritime Day Today

Today we celebrate IMO's World Maritime Day.

This year is special given the goal of this day today in attracting public, private, and government attention to promote anti-piracy coordination and cooperation procedures between and among States, regions, organisations and industry.

To mark this occasion, piracy will be the focus of this year’s North American World Maritime Day Observance being held in Tampa, Florida on October 27th followed by a US Coast Guard Missions conference on October 28th which will feature panel discussions on the stewardship, safety and security missions of the Coast Guard.  Both events will be held at the Marriott Waterside in Tampa and are free and open to the public. North American regional representatives from industry, government and NGO’s will dialog on these critically important regional issues.  The events directly follow the USCG Flag Officer’s conference and Innovation Expo. For information on attending this event, you may wish to contact r.lambert@namepa.net.

I also invite you to  remember  all seafarers -- men and women --  serving our industry at sea and especially those who are being held hostage by pirates off east Africa and elsewhere.


With my very best regards to all, Michelle Otero Valdés. You may reach me at miamipandi@comcast.net or motero@houckanderson.com.







  

VIDEO: WWII-Era SS Gairsoppa Discovered Carrying 7 Million Ounces of Silver | Maritime News | Maritime Executive Magazine

VIDEO: WWII-Era SS Gairsoppa Discovered Carrying 7 Million Ounces of Silver Maritime News Maritime Executive Magazine

Salvors Lose Round 2 Against Spain

The Daily Business Review has reported today that Florida-based Odyssey Marine Exploration has been ordered to turn over to the Spanish government 17 tons of silver coins and other treasure recovered from a sunken Spanish galleon in 2007. The ship, reportedly the NUESTRA SENORA DE LAS MERCEDES, was sunk by British warships in the Atlantic in 1804 while sailing from South America with more than 200 people on board. In May 2007, Odyssey announced that it had recovered more than 500,000 silver coins and other artifacts from the wreck and flew the treasure back to Tampa.

Spain went to federal court in Tampa claiming ownership over the treasure. Odyssey disputed the Spanish government's ownership of the valuable cargo. A federal judge sided with Spain in the first round of the tug-of-war in 2009, accepting the Spanish government's argument that it never surrendered ownership of the ship and its contents. Odyssey appealed before the U.S. Circuit Court of Appeals for the Eleventh Circuit. The three-judge panel issued its ruling in favor of Spain in a case that could spill over to other treasure hunts for years to come.

Odyssey will now reportedly seek a hearing before all the judges of the Eleventh Circuit. If this request fails, Odyssey will need to seek U.S. Supreme Court review if it wishes to continue its "odyssey." Odyssey's position is that the wreck was never positively identified as the NUESTRA SENORA DE LAS MERCEDES and even if it is that vessel, the ship was on a commercial trade trip, not a sovereign mission at the time it sank. This means that Spain should have no firm claim to the booty. International treaties generally hold warships sunk in battle are protected from treasure seekers.

If you are interested in receiving a copy of the Eleventh Circuit decision or wish to reach me, you may do so by contacting me at miamipandi@comcast.net or at Houck Anderson at motero@houckanderson.com.

Judicial Hellholes -- How Does South Florida Fare?

One of my fellow colleagues at Houck Anderson has provided me a copy of the American Tort Reform Foundation's 2010-2011 "Judicial Hellholes" piece. I recall reading the piece issued for 2009-2010, which ranked South Florida as the number one "Judicial Hellhole" in all of the United States. That is quite a notorious distinction that no jurisdiction wants. The 2009-2010 report can be found below at:

http://www.atra.org/reports/hellholes/report.pdf

This year, South Florida ranks as the number 4 "Judicial Hellhole" for all the United States. The report cites the Florida Legislature's passing of three laws: 1) a constructive notice requirement for slip-and-fall cases; 2) the approval of parents signing liability waivers on behalf of their minor child; and 3) caps on attorney's fees for attorneys that do work for the state. That report can be found by clicking below:

http://www.judicialhellholes.org/wp-content/uploads/2010/12/JH2010.pdf

Now, I do not provide this information because I agree with the reports issued. Far from it! I provide this information so that points of view on litigation in South Florida can be brought out to light and discussed in this forum. Litigation affects the maritime industry--just look at the amount of cruise lines involved in litigation here. In interpreting these reports, they are certainly quite one sided (they are issued by the American Tort Reform Foundation, aren't they?). However, they do highlight difficulties those of us in the defense community face in South Florida--high verdicts and scandals involving attorneys meant to uphold their oaths of attorney when they became members of the Florida Bar. We can only hope that South Florida will continue to make its way out of this notorious list.

If you are interested in reaching me or wish to discuss this issue further, please feel free to write me at miampandi@comcast.net or at Houck Anderson, P.A. at motero@houckanderson.com.

OP-ED Women in Shipping

You have not heard from me in over a week, as I have spent the last week in Sweden in advance of the Women's International Shipping and Trading Association's ("WISTA") International Conference & AGM in Stockholm, Sweden which was held September 14-16. In advance of the trip, I asked one of the Conference organizers (thank you Lena Gothberg!) to assist me in arranging business development visits in Sweden. It was this process of arranging these meetings with strangers that led me to what can best be described as an epiphany--with women reaching out and grabbing the most coveted jobs in the world, we need to work harder to support each other in making inroads in this male dominated industry.

It first helps to consider the reasons behind the fact that this is a male dominated industry. There is certainly a lack of women as merchant mariners. Life onboard is tough for anyone--something that breaks even the most stoic individuals. I've been told that women feel out of place on ships primarily because of the nature of the job which may require quite a lot of manual labor. And since women are often looked as the “weaker-sex”, some are skeptical of whether a woman has what it takes to endure such harsh conditions. However, I do not think these are the main reasons as to why there are so few female merchant mariners.

Since the beginning of mankind, whether we want to recognize it or not, there has been one cardinal rule: men will earn and women will take care of the house. Though we have come "a long way baby" to quote an old 70s commercial, the idea of women leaving their homes for months at a time while trying to manage a family is something not many can relate to. Many men find it intimidating and frustrating when a women leaves home for so many months to go away on a job. Even if a woman continues to sail after marriage, chances are, she will give up her post at sea when she starts a family. The situation is so different for women who work shoreside, as they see their children in the morning on their way to school or day care and again at the end of the day. With a job as a merchant mariner, not being able to see their children for months on end may be simply too much of a sacrifice for a woman.

I think it will be a while before we see women venturing out at sea without any hesitation and fear or choosing life out a sea for their entire working lives. Though times are changing and many companies are hiring women crew, I believe it will take longer for husbands to actually appreciate their wives' chosen profession to sail and travel around the world. For those of us that work shoreside, we still have the "pull of sea", which can, on occasions, be baffling to our life partners. We receive that late night phone call (invariably on a holiday) from a Captain seeking assistance. Our clients and working partners are typically in another country, which requires us to travel extensively. We may be called away on an emergency basis to attend to a ship casualty or other emergency, missing children's birthdays, school plays and other important life events. These and many other variables, I think, are at the root of why women do not choose this profession. In my case, the profession chose me and I am happy it did.

The WISTA Conference discussed issues related to mentoring and supporting our fellow women in shipping. This is a welcome "call to arms", as given the difficulties I have very briefly highlighted above for women in this industry. It will take our working together to increase our numbers in the industry. I believe my hosts in Sweden gave this a running start--now more of us need to consider assisting our fellow sisters in this endeavor. Thank you WISTA Sweden--let's hope this is the beginning of more support for each other.

If you wish to reach me, you may email me at miamipandi@comcast.net or motero@houckanderson.com.

WISTA's Florida Chapter Meets at International Registries Ft. Lauderdale Office

Today, the Maritime Executive reports on our WISTA Florida Chapter meeting. The content of that article follows:

On August 25, 2011 the Florida Chapter of the Women's International Shipping & Trading Association (WISTA)  held its monthly meeting at the Marshall Islands Registry’s office in Fort Lauderdale, Fl. International Registries, Inc. (IRI) and its affiliates provide administrative and technical support to the Maritime and Corporate Administrators of the Republic of the Marshall Islands.

The meeting was hosted by Gloria E. Roque the Assistant Vice President for Vessel Registration.  Despite of the shadow of Hurricane IRENE there was a great turnout of WISTA members from all walks of the maritime industry.  The guest speaker was Ashlie Megrichian, the Registry’s Licensing Manager of Yacht Operations.  Her presentation covered the process the crew goes through to get the correct licensing, endorsements, and proper training for their respective rating.  The Marshall Islands Registry exercises concern for mariners and pride in the customer service they supply to their clients, the ship owners and the mariners.

The Registry is a proud supporter of WISTA which is an international organization for women in management positions involved in maritime transportation business and related trades worldwide. WISTA aims to be a major player in attracting more women to the industry and in supporting women in management positions with networking, education and mentoring. 

If you are interested in contacting me, you may do so at miamipandi@comcast.net or at motero@houckanderson.com.