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Thursday, August 30, 2012

"Suits" Strikes, Again

Well, "Suits" is at it again.In a prior post, I noted the references in the of the show to Section 409A (!!) and Sarbanes-Oxley.  Now, the show expressly cites to . . . ERISA. [Thanks to my former student, and now published ERISA lawyer, Ian S., for alerting me to what follows!]  

The set-up [SPOILER ALERT] is that Jessica (Gina Torres) has just been displaced as managing partner after a contentious vote, and Harvey (Gabriel Macht), aligned with Jessica, has his workload recast by Louis (Rick Hoffman), at the direction of the new managing partner, with the intention of pushing Harvey out the door. Here's the exchange:

Louis - OK, listen, I have, ah, been asked to redistribute the workload. Jessica focused too much on the flash. These cases won't make the New York Times but they'll definitely bankroll our bonuses. It's an Employee Retirement Income Security Act case. Do you know what that means?

Harvey - I know what ERISA is, Louis.

Louis - Oh, good, so you won't mind the detail-oriented nature of the assignment.

Harvey - I won't mind it at all.

Louis - Great.

Ha! Great, indeed!!

Note also that, earlier in the show Harvey is talking to Jessica about wanting to engineer a mass exodus in response to Jessica's displacement. The discussion goes as follows:

Jessica - Harvey, we're not going anywhere. We have a noncompete clause. We quit, we can't practice law in New York for a year.

Harvey - Contracts are made to be broken.

Jessica - Not when they're written by me.


Now, on this point, I think the show's writers/researchers - at least of one whom clearly has hooks into the ERISA/compensation world - may possibly have missed the difficulties one may have in endeavoring to subject attorneys to a noncompete.  See, e.g., the 1992 Fordham Urban Law Journal article on the topic.  Now, there may not be a flat NY prohibition against all attorney noncompetes in all formulations, and I don't pretend to know all of the factual details regarding the noncompete that Jessica drafted in the Suits situation, so maybe I'm being unfair. But I do think that there's a bit of a missed point there. To be clear, though, none of this is by way of criticism - please keep those references comin' . . . it's not overly often (to say the verrrry least) that ERISA/409A/SOX/noncompete/etc. issues are given express and front-and-center treatment on network television. 


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