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November, 2021
Welcome
Welcome to readers of Making the Connection!
In this issue, you will find:
- In Focus : Making the Most of Online Mediations
- Question of the Month, answering a reader's inquiry about for cause firings
- Case on Point, discussing usurious convertible loans
- At the Podium, listing my speaking engagements and public appearances
- Client Corner, spotlighting client events and announcements
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In Focus
Making the Most of Online Mediations
During the pandemic, courts and ADR providers pivoted to online rather than in-person mediations. Online mediation has several advantages:
- It reduces travel costs for the parties and counsel;
- It permits participation by mediators or parties in distant locations;
- Mediators and parties can readily share documents or information on their screens; and
- When there is personal animosity between the parties, they can be in joint session or caucus without being in the same room or suite.
On the other hand, online mediation has its challenges, especially for the mediator:
- It is more difficult to establish rapport with or between the parties:
- It can be a challenge to incorporate remote translators into the process;
- It can be more cumbersome for clients to confer with their own attorneys if they are not in the same location;
- The parties and counsel may not be familiar and comfortable with the conferencing technology;
- It is harder to protect the process from intrusions by roommates, pets and colleagues;and
- It can be harder to enlist the participants' full attention, and dissuade them from reading emails, answering phone calls, or doing paperwork.
To make the most of their online mediations, the parties and their counsel should anticipate and prepare for these challenges by:
- Familiarizing themselves with the technology;
- Determining how to facilitate interpreter and attorney-client interactions;
- Minimizing potential interruptions and intrusions; and
- Turning off other devices, putting away other files, and facing the camera.
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Question of the Month
This month's question comes from my son Lionel Pomerantz:
Q: Can an employee be fired for-cause for conduct (such as Jon Gruden's racist, homophobic and misogynistic emails to and about other NFL personnel) occurring prior to the term of his or her employment?
A: Ordinarily, employment is at will, meaning that the employee can be terminated for any reason, other than a legally prohibited one (such as racial or gender discrimination, whistle-blowing, etc.). When employers and employees enter into contracts for employment for a designated term, the contract may specify grounds on which the employee may nevertheless be terminated for cause. Those provisions often contain morals clauses prohibiting conduct which would cause embarassment to the employer. Ordinarily, morals clauses refer to conduct during the term of the agreement. However, an applicant for employment could be asked to represent that he or she had not engaged in the past in any such conduct, and then be terminated if that representation was untrue.
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Case On Point
In this month's case, the court considers the enforcement of New York's usury law in the context of a convertible loan.
Adar Bays, LLC v GeneSYS ID, Inc.
(N.Y. Ct. of App. 2021)
New York's usury laws prohibit loans with interest in excess of 25% per annum. Sometimes, convertible loans permit lenders to convert some or all of the loan into equity interests. In this instance, certain breaches resulted in an automatic increase in the amount of the loan principal. In Adar Bays, LLC v GeneSYS ID, Inc., New York's Court of Appeals ruled these additional benefits to the lender should be valued and considered in deciding whether a loan is usurious. The Court of Appeals also ruled that loans which violated the usury statute were unenforceable and that neither principal nor interest could be covered.
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At the Podium
- Please join me on November 10, 2021 at 1:00 p.m. for a program hosted by the Suffolk Academy of Law on Building Cultural Flexibility to Negotiate In Diverse Settings. Click here for registration and information.
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Client Corner
Client Corner features client announcements and events of potential interest to readers. Some Client Corner events are also listed on the calendar page of my website.
- On November 10, 2021, Nick Nikiforakis will present a one day program on Browser Fingerprinting - Past, Present, and Future at a conference sponsored by the Open Web Application Security Project.
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| © 2021, Lisa Renee Pomerantz. All rights reserved. |
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