• April 26th, 2016

Memorandum #1

Paper, Order, or Assignment Requirements

Here is the outline (FOLLOW IT!) with some comments from me:

I. Memo Introduction: Articulate what you feel are the strengths of your company’s legal claim or defense. (The intro should be a brief general summary of the facts as they pertain to your client. Make sure to briefly state what you think the strengths of your client’s case are. This should be no more than 2 or 3 paragraphs long. Remember, this is an intro, you will go into details later in the memo.)

II. Client’s Case

A. Facts and Laws

1. Analyze the facts related to employment discrimination or unlawful termination based on your company’s perspective. (Discuss and analyze the facts related to discrimination or unlawful termination from your company’s perspective. If you are Greene’s, she is making a Title VII discrimination claim against you so you should discuss Title VII, PDA (and any other potential issues) here but you do not need to go into extreme detail. If you are Howell’s, you should discuss unlawful termination due to the fraudulent inducement issue and, to be thorough, you should probably discuss employment discrimination due to the pregnancy issue also, even though it is not mentioned. Remember, this is a memo. But, you need enough detail so the reader understands your position. Do not simply regurgitate the facts from the prompt scenario here.)

2. Analyze the facts related to contract issues based on your company’s perspective. (Discuss the facts related to contract issues from your company’s perspective. (Both Greene and Howell will have confidentiality agreement issues and Howell can also have some contract issues related to unlawful termination.)

3. Identify the operative employment and contract laws that apply to your company’s case. (Here you should identify the laws that might apply to both employment and contract issues for your company’s case. You should identify the law and briefly state how it applies. At a minimum, you should identify the laws you mentioned above in sections 1 & 2 and any others (state and/or federal) that might apply.)

B. Precedent

1. Select cases that support your company’s position in terms of employment discrimination or unlawful termination. Justify why they support its case. (Do some research, find some cases that “directly” apply and list them here with a brief explanation of how they apply. For example, if you are Greene or Howell, you should look for some pregnancy discrimination cases that have a similar fact pattern. For Howell, fraudulent inducement might also apply in this section. Note that the rubric says “cases” so you need, at least, two cases here. There are many, many cases that will apply here.)

2. Select cases that support your company’s position in terms of contract disputes. Justify why they support its case. (Same as section 1 above but for contract issues. (For both companies that would be breach of confidentiality agreements or stealing trade secrets cases. For Howell this can also include the fraudulent inducement issues.)

C. Facts to be Determined

1. Determine any facts that will help you better analyze your company’s position. In other words, what questions do you need answered before you can proceed? (This part is simple: What else do you want/need to know that you don’t already know? Believe me when I say that there are many, many facts that you don’t know in this scenario. Don’t tell me things like you want to know what the confidentiality agreement included. In reality, you would already know that.)

2. Explain how the identified facts will help establish the legal rights and/or obligations of the defendant in relation to your company. In other words, how would those facts reflect on the propriety and legality of the decisions that were made? (The unknown facts you identified above need to be connected to the case. Why do you want to know this information? How would you use it? How would it help or hurt your case?)

D. Application of the Law to the Facts: Using the precedents you have selected in case law, regulations, and substantive law, assess the strengths and weaknesses of your company’s arguments in court. Is it probable your company will win this legal dispute? (This is also very simple. Articulate the strengths and weaknesses of your company’s case for both the termination and contract issues. Use the cases you selected and tell me how they help or hurt your case. Seldom will you find a supporting case that is 100% on point, that is, even if you find a case that helps it could also hurt your case. Be honest in your assessment here. No matter which company you defend, it’s not all roses for you.)

E. Impact Assessment

1. Based on your analysis, how do you believe this situation may affect public perception of your selected company? Will the public discourse reflect possible legal outcomes? Be sure to use specific examples. (Hey, you just fired a pregnant woman and you sell jewelry. Do you think the public and your target market might not like this? But, she was also a thief, right? Think about it and discuss it here. If there is any publicity about this lawsuit at all, there will be public perception issues for your company. Remember, this is a personnel issue and would have some privacy requirements so don’t suggest that you publicly deride her as that will only get you sued again.)

2. Make suggestions on how to alleviate any damages to your selected company’s public perception going forward. Will action(s) related to the other party be appropriate? (What do you suggest that your company does about the potential public perception issues you identified in the section above? Having her kidnapped and dumped in a hole is not an option here.)

3. Recommend how the company should modify specific business practices to avoid similar situations in the future. (Going forward, if you were in charge, would you recommend any changes to your company’s business practices to try to avoid this type of situation occurring again? What?)

I’ll reiterate still one more time yet again……….. FOLLOW THE OUTLINE!

There are three deliverables for the FP Part I:

Milestone One: Due in Module Two, this deliverable covers the first part of your memo (Intro, Facts and Laws, Precedent and Facts to be Determined). That’s it. Follow the outline. M1 is worth 100 points.

Milestone Two: Due in Module Five, this deliverable covers the remaining sections of the memo (Application of the Law to the Facts and Impact Assessment). Follow the outline. M2 is worth 100 points. Milestone Two does not need to contain any of the sections from Milestone One but, if you want to submit the entire memo, you may do so. If you do submit the entire memo, I will only read and grade the Milestone Two sections.

I will give you feedback on both of these Milestones when I grade them. You should use this feedback to correct, modify, and refine your memo into a polished Final Submission that is due in Module Eight. Even if you do well on Milestone 1 and Milestone 2, simply combining those two milestones into a final submission is not sufficient. This final submission should cover all sections of the outline above. You will have an entire week (Module Eight) to work on the Final Submission and it will be worth 250 points. That’s all you have to do that week! Therefore, expectations for this final product will be high and graded accordingly. This is the highest point value submission in the course. Give it your best effort.

Here are some general observations and suggestions:

You must choose to represent either Greene or Howell. There are no other choices. You must stick with your choice throughout the three submissions that comprise this assignment. Please state who you are representing. Don’t make me have to figure it out.

This is a memo, not an outline. Write in complete sentences. Proof read again and again. Spell check. Those little green and red squiggly lines in MS Word mean something, don’t ignore them. It is probably worthwhile to ask a friend or significant other to read your work and tell you if it makes sense to them before you submit it.

Even though the prompt states that you are a legal intern, do not try to write like a lawyer. Don’t use five dollar words when plain English will do. The reader of this memo will already understand basic legal principles so keep that in mind. If you are going to use legal terminology, make sure you are using it correctly.

Do not cut/paste/copy sections of the prompt into your memo. Also, do not cut/paste/copy sections from cases or textbooks or websites into your memo. The memo should be written in your own words. Summarize cases in your own words. Do not include any charts or quotes (e.g., the quote from the HR person at Greene.)

When you submit something to SafeAssign, it will give you an “originality score”. If your originality score is above 25% you should take another look at your submission and make sure that you have not cut/paste/copied too much material included in your memo. If your originality score is over 40% I will ask you for an explanation before I grade it. All work must be your own.

Pay special attention to this part of the instructions:

Greene’s sues Jennifer for breach of the confidentiality agreement when it learns that she has given confidential information to Howell. Jennifer counter-sues Greene’s for wrongful termination. Howell sues Jennifer for breach of the covenant not to compete, and Jennifer counter-sues for fraudulent inducement, believing that she was tricked into signing the employment contract with Howell and that Howell was never interested in hiring her, but was interested only in acquiring information on the process to create Ever-Gold. Howell also sues Triumph, claiming that it knew or should have known that Jennifer was subject to a covenant not to compete, and that Triumph should therefore be bound by its provisions.

This paragraph tells you what your client is concerned about. Make sure you thoroughly understand ALL of your client’s potential issues.

I think that Greene is the easiest to write a memo about as the fact pattern clearly supports the various sections of the rubric. If you choose Howell, you still must address the termination issues, even if you do not think one exists. At a minimum, assume that she was still pregnant and, at some point, that might be an issue for Howell, just like it is for Greene. And, while fraudulent inducement is a contract issue, in Howell’s case it is also a wrongful termination issue. Just make sure that whoever you choose, you address all sections of the prompt outline criteria.

Finally, my outline examples above are not intended to tell you everything you should discover in this fact pattern and I have not mentioned everything you should write about in the various memo sections. So, please don’t take these suggestions and examples as everything you should cover. I’m trying to point you in the right direction. I’m not telling you everything you should write about.

You are
supervisor, which will be used to formulate an official executive brief of these lawsuits.
an intern at the legal department at one of the companies in the following scenario (Greene or Howell) and tasked with compiling a memo for your
Mary Jane and Allen Greene, a married couple, own a high-end costume jewelry manufacturing and distribution company called Greene’s Jewelry Wholesale, LLC. The principal place of business for Greene’s Jewelry is in Derry, New Hampshire, where it owns a warehouse and two storefronts.
Originally started in 1957, the company expanded over five decades, and it now employs 502 individuals in a variety of departments, including sales and marketing, research and development, human resources, and manufacturing.
The primary asset of Greene’s Jewelry is its patented process for creating a synthetic gold-colored material called “Ever-Gold,” which is used in Greene’s necklaces, rings, earrings, and bracelets. Ever-Gold is impervious to scratches, discoloration, oxidization, and is marketed as “everlasting gold.”
Jennifer Lawson, who has been employed for three years as a junior executive secretary in the research and development department at Greene’s Jewelry, has just learned that she is pregnant. She has earned high marks on each of her annual reviews with the company, with the exception of the fact that she routinely shows up 15 to 30 minutes late for work. Otherwise, she is deemed to be professional, articulate, diligent, and skilled in her role with the company. When Lawson advises the head of human resources, Lisa Peele, that she may have to take additional time off as a result of some high-risk factors that she will face during the course of her pregnancy, she is told that her position has been eliminated. The specific words are: “Congratulations Jennifer! That is exciting news for you. We do not need to worry about time off, though, because, regrettably, I was just going to let you know that we are downsizing and no longer have a need for any of our junior executive secretaries.”
Jennifer is distraught, and immediately returns to her desk to clear it out as instructed. She removes all of her personal items, as well as the projects she was working on prior to her discussion with Lisa Peele. When she returns to her home, she realizes that she has inadvertently taken a draft letter to Greene’s patent attorney, which details the secret process for creating Ever-Gold.
Although Greene’s Jewelry requires all of its executives to sign covenants not to compete and confidentiality agreements, Jennifer was only required to sign a confidentiality agreement, by which she agreed never to disclose any information that she might acquire from Greene’s regarding the process used to create Ever-Gold.
Panicked, and knowing that she needs a job, she calls one of Greene’s competitors, Howell Jewelry World, and advises its hiring manager that she is a former employee of Greene’s, that she needs a job, and that she has confidential information about Ever-Gold that would help Howell compete with Greene’s. The hiring manager at Howell, Naomi White, schedules an interview with Jennifer for the following day.
At the end of the interview, Naomi makes an offer to Jennifer to begin work with Howell immediately, but she conditions the offer on Jennifer’s execution of an employment contract. The contract contains two specific provisions that Naomi insists Jennifer read and initial, in addition to signing the contract as a whole. One of those provisions states that Jennifer will disclose the information she has regarding the Ever-Gold process prior to commencing work with Howell. The other provision is a covenant to not work for any competitor of Howell for two years after she leaves the employ of Howell, irrespective of the reason for leaving, and whether she quits or is fired. Jennifer initials both of the provisions, signs the contract for employment, and gives Naomi a copy of the letter that she removed from her desk at Greene’s.
One week after she starts working with Howell, Jennifer is fired for chronic tardiness, and she thereafter gets a job working as a sales associate with the only other jewelry company in town, Triumph Jewels.
Meanwhile, Greene’s learns that Howell has acquired knowledge of the secret process used to create Ever-Gold, and that Howell has tweaked the process slightly so as to avoid any patent infringement issues but to still create a product with similar characteristics and qualities of Ever-Gold. Howell, for its part, has learned that Jennifer is working for a competitor and fears that Jennifer will disclose the process to Triumph. Finally, one of Howell’s customers had developed a disfiguring rash as a direct result of the new process Howell has begun using in its jewelry.
Greene’s sues Jennifer for breach of the confidentiality agreement when it learns that she has given confidential information to Howell. Jennifer counter-sues Greene’s for wrongful termination. Howell sues Jennifer for breach of the covenant not to compete, and Jennifer counter-sues for fraudulent inducement, believing that she was tricked into signing the employment contract with Howell and that Howell was never interested in hiring her, but was interested only in acquiring information on the process to create Ever-Gold. Howell also sues Triumph, claiming that it knew or should have known that Jennifer was subject to a covenant not to compete, and that Triumph should therefore be bound by its provisions.

See attached docs for use.

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