by Lee Gesmer | Nov 28, 2018 | General, Trademark
The U.S. Supreme Court decides very few intellectual property cases. And, it accepts review of few cases from the First Circuit Court of Appeals in Boston (my circuit). So, when the Supreme Court accepts an IP case appealing a decision from the First Circuit, as it has now, I pay attention.
The case under appeal involves a narrow but important legal issue that is of interest to both the intellectual property licensing and bankruptcy communities. Here is a brief summary of what’s at issue.
The decision on appeal is Mission Product Holdings Inc. v. Tempnology LLC (1st Cir. January 12, 2018), and the issue is a mashup of trademark and bankruptcy law.
When a company files for protection under Chapter 11 of the Bankruptcy Code, the trustee or the debtor-in-possession (the “debtor”) may secure court approval to “reject” any executory contracts to which the debtor is a party. An example would be a distribution agreement for a specific term (say five years) that has not run its course. If the distributor goes into bankruptcy two years into the five year term it can “reject” the contract – it is no longer obligated to perform during the remaining years.
The debtor doesn’t get off completely free – it is left with a liability for a pre-petition breach of the contract. 11 U.S.C. § 365(g) (“[T]he rejection of an executory contract or unexpired lease of the debtor constitutes a breach of such contract or lease … immediately before the date of the filing of the petition….”). However, the other party to the contract has nothing more than an unsecured claim, and these are often worth little in bankruptcy proceedings.
There is an important exception to this rule, which leads to the issue in this case. When the rejected contract is one “under which the debtor is a licensor of a right to intellectual property,” the licensee may elect to “retain its rights … to such intellectual property,” in effect forcing the continuation of the license. 11 U.S.C. § 365(n)(1).
However, the exception presents a potential problem for licensees in one respect – the definition of “intellectual property” includes patents, trade secrets and copyrights, but does not mention trademarks, a form of intellectual property that is often the subject of license agreements. 11 USC § 101(35)(A)
The First Circuit case involved an ongoing (“executory”) trademark license, and the debtor took the position that because trademarks are not included in the list of exceptions, it was entitled to reject (terminate) a trademark license. The licensee, the other party in the case, took the opposite position, asserting that the trademark license should continue.
The licensee lost before the bankruptcy court and appealed to the First Circuit. After a review of the statutory history of the law and the policy issues involved, the First Circuit held that Congress meant what it said by omitting trademarks from the list of the kinds of intellectual property that cannot be rejected by a Chapter 11 debtor – executory trademark licenses are an exception to the exception, and they can be rejected by a debtor. Therefore, the licensee lost its ongoing trademark license.
However, this ruling set up a “circuit conflict” with the Court of Appeals for the Seventh Circuit. For reasons too detailed to go into here, in Sunbeam Products, Inc. v. Chicago American Manufacturing, LLC (7th Cir. 2012), the Seventh Circuit held that Chapter 11 bankruptcy does not entitle the debtor to terminate a trademark license.
This conflict between the First and Seventh Circuits led the Supreme Court to accept an appeal of this case. And, this is clearly a case worthy of Supreme Court review. Prospective licensees should know whether or not they will be able to continue to use a trademark if the licensor files for bankruptcy, not that it depends on where in the country the bankruptcy is filed and therefore which circuit’s law is controlling. A decision by the Court will resolve, nationwide, the status of trademark rights when a debtor rejects a license agreement in bankruptcy.
Briefing on this case has not yet begun, but the case is likely to be heard next year, and a decision issued before the Supreme Court 2018-19 term ends next June. I’ll update this post when a decision is issued. In the meantime, here is a link to the Scotusblog page for the case.
Update, May 2019: The Supreme Court ruled that a debtor may not terminate a trademark license. Link to decision.
FOOTNOTES
by Lee Gesmer | Oct 26, 2018 | DMCA/CDA
Section 230 of the Communications Decency Act has, once again, protected a website from a claim of defamation based on user postings.
Simply put, Section 230 of the CDA provides that a website isn’t liable for defamation (or any other non-intellectual property claim) based on user postings. The poster may be liable (if she can be identified), but the website is not. Typically, Section 230 cases involve defamation or interference with contract by the poster — copyright infringement based on user postings is handled by a separate statute, the DMCA.
Craft Beer Stellar, LLC’s suit against Glasdoor ran into this law head-first in a recent case decided by Massachusetts U.S. District Court Judge Dennis Saylor.
Craft Beer complained to Glassdoor over a critical posting by a Craft Beer franchisee (the fact that the post was by a franchisee rather than an employee is legally irrelevant). Glassdoor removed the posting on the ground that it violated Glassdoor’s community guidelines. The franchisee reposted, this time in compliance with the guidelines, and Glassdoor denied a request by Craft Beer to remove the second posting.
Craft Beer argued that by taking down the first review and allowing the second review to be posted Glassdoor lost its Section 230 immunity. The judge summarized its argument as follows:
Glassdoor essentially contends that Glassdoor’s decision to remove a “review” from its website for violating its community guidelines, combined with its subsequent decision to allow the updated, guidelines-compliant version of the “review” to be re-posted, constituted a material revision and change to the post’s content. Such a material revision, it contends, constituted an act of creating or developing the post’s content, and accordingly transformed Glassdoor from an (immunized) interactive computer service into an information-content provider not subject to the protections of §230.
Judge Saylor rejected this argument, noting that Glassdoor wrote neither of the two posts; it just made a decision to publish or withdraw the posts. First Circuit precedent holds that these kinds of “traditional editorial functions” — deciding whether to publisher or withdraw content — fall squarely within Section 230’s grant of immunity. See Jane Doe No. 1 v. Backpage.com LLC (1st Cir. March 14, 2016) (“lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred”).
Craft Beer also claimed that Glassdoor had violated the Defend Trade Secrets Act (“DTSA”), 18 U.S.C. § 1836. However, as noted above, Section 230 provides protection for non-intellectual property claims. Although one would ordinarily think of a trade secret claim as an intellectual property claim (and therefore not covered by Section 230), the DTSA expressly states that the DTSA “shall not be construed to be a law pertaining to intellectual property for purposes of any other Act of Congress.” Accordingly, Section 230 provided Glassdoor with protection from the DTSA claim as well. (For an in-depth discussion of this issue see Professor Eric Goldman’s article, The Defend Trade Secrets Act Isn’t an ‘Intellectual Property’ Law.)
The larger problem for Craft Beer may be that not only did the judge dismiss its complaint, but the case probably has added publicity to the bad reviews Craft Beer sought to quash. Indeed, even if it had won the case and forced Glassdoor to take down the offending posts, potential franchisees researching the company online would find the posts quoted in court decisions in the case. As things now stand, Craft Beer is probably suffering to some extent from the Streisand Effect (for another example of Section 230 and the “Streisland Effect” see here). And, if it is considering an appeal to the First Circuit (a bad move, in my opinion), a decision from the First Circuit will only make matters worse.
Craft Beer Stellar, LLC v. Glassdoor, Inc. (D. Mass Oct. 17, 2018)
by Lee Gesmer | Oct 8, 2018 | Copyright
Update to this post: Copyright Office Backs Led Zeppelin In Ninth Circuit En Banc Appeal (link)
The U.S. copyright community will look back on 2018 as an important year for music copyright law. Appellate decisions in music copyright cases are rare. However, this year we’ve seen two important opinions from the Ninth Circuit. In March the Ninth Circuit upheld a jury verdict that found that Pharrell Williams and Robin Thicke’s 2012 recording of “Blurred Lines” infringes Marvin Gaye’s 1976 composition of “Got To Give It Up” (see my blog post, “Blurred Lines at the Ninth Circuit,” here).
Now, in October, the Ninth Circuit has issued an opinion in Randy Wolfe’s copyright case against Led Zeppelin. The jury in that case found that Led Zeppelin’s 1971 recording of Stairway to Heaven did not infringe Wolfe’s composition copyright in the 1968 song Taurus (recorded by Spirit). However, the appeals court found that the judge made several errors during the trial, requiring that the case be retried.
There is a small measure of irony in the fact that in both cases the Ninth Circuit’s decisions appear to run counter to the opinions of most knowledgeable musicians.
Based on my extensive (but admittedly unscientific) survey of commentary in the music community, most musicians felt that Blurred Lines did not infringe Give It Up – at most, Blurred Lines copied the unprotectable genre of Give It Up. However, the Ninth Circuit found that there was sufficient evidence to support the jury verdict and upheld the finding of infringement on appeal.
Randy Wolfe
The sentiment was the same in the Led Zeppelin case – most musicians I surveyed argued that the introduction to Stairway to Heaven did not infringe the introduction to Taurus. The jury agreed, finding no infringement, but this time the appeals court disagreed, and sent the case back for a retrial, setting the case up for a possible jury verdict in favor of Wolfe’s estate.
Admissibility of Pre-1972 Sound Recordings
The Led Zeppelin appeal involved a number of legal issues, as is true of most appeals. The Ninth Circuit reversed the jury verdict and remanded the case for retrial based on faulty jury instructions on issues of originality and copyright protection of the selection and arrangement of public domain elements of a musical composition.
However, for most legal observers the key legal issue was whether, since pre-1972 copyright law did not recognize a copyright in sound recordings (and then only prospectively), the copyright in Taurus was limited to the simplistic lead sheet deposited with the Copyright Office in 1967. The trial judge in the Led Zeppelin case ruled that the copyright was limited to the Copyright Office deposit, and therefore the jury never heard the sound recording of Taurus.
The Ninth Circuit was presented with this issue in the Blurred Lines case, but was able to resolve that appeal without deciding it.
The court was presented with the issue a second time in the Led Zeppelin appeal, and this time the court did take it on. After examining the statute and the legislative history, and reviewing the limited case precedents on the issue (none of which were squarely on point) the court concluded:
“For the benefit of the parties and the district court on remand, we also address whether the scope of copyright protection for an unpublished work under the 1909 Act is defined by the deposit copy. We hold that it is.”
The reference to an “unpublished” work is confusing, since the sound recording of Spirit’s song Taurus was published in 1968. However, before 1978 courts had held that a musical work was “published” only when sheet music was distributed to the public. Under copyright law, distribution of a sound recording of a musical work was not considered a “publication” of the musical work. The lead sheet for Taurus was unpublished, and the court’s many references to the “unpublished work” refer to the lead sheet deposited with the Copyright Office.
Since the Ninth Circuit’s opinion is the first and only federal appellate decision on this issue it directly impacts song writers in the same position as Randy Wolfe: composers who own pre-1972 works and who may be considering a copyright suit against the owners of compositions or sound recordings they believe to be infringing. As was the case in the Led Zeppelin trial, these composers will not be able to play the sound recordings of their compositions for the jury in order to prove copyright infringement. Their evidence at trial will be limited to the sheet music filed with the Copyright Office, although this may be played for the jury by a witness (as was done at the Led Zeppelin trial).
This presents a potentially significant obstacle to proving copyright infringement of pre-1972 works since lead sheets for popular music filed in that era were often incomplete. As Wolfe argued (and as Marvin Gaye argued in the Blurred Lines case), the sound recording is the best evidence of a composition, and may contain compositional elements that have been copied by the defendant but that were not included in the sheet music.
At Retrial Wolfe May Get The Sound Recording of Taurus into Evidence After All
Despite this ruling, if the case is retried Randy Wolfe may be able to play the sound recording of Taurus for the jury based on a technicality. At trial Jimmy Page denied access to Taurus, and he was cross-examined on this issue by Wolfe’s lawyer. This included requiring Page to listen to Taurus in open court. However, the trial judge viewed the sound recording of Taurus to be outside the scope of Wolfe’s copyright, so he excluded the jury from the courtroom when the sound recording of Taurus was played. The jury was then allowed to reenter the courtroom, and Page was cross-examined on what he had just heard.
This was awkward, to say the least, and the Ninth Circuit ruled that the jury should have been permitted to view Page’s demeanor while he was listening to Taurus. The Ninth Circuit held that on retrial the jurors should be instructed that the sound recording of Taurus is limited to the issue of access, and is not to be used to judge the similarities between Taurus and Stairway to Heaven.
Of course, juries are often unable to understand (or unwilling to follow) “limiting instructions” of this sort, so this is, in effect, a backdoor means by which the jury may be able to hear Taurus if Jimmy Page again denies access (a strategic issue Page and his lawyers will have to deal with on retrial of the case).
What’s at Stake in This Case?
Why is Wolfe’s estate pursuing this case so aggressively? Obviously, the case raises issues of reputation and artistic integrity, particularly for Robert Plant and Jimmy Page, who composed Stairway to Heaven.
Monetarily, if Wolfe’s estate were to win it would be entitled to damages based on a share of profits attributable to Stairway for the three years preceding final judgment, as well as a share of royalties until 2067, 70 years following Wolfe’s death.
In the Blurred Lines case Marvin Gaye’s future damages were decided by the judge, who ruled that Gaye’s estate was entitled to 50% of future songwriter and publication royalties. If Wolfe were to prevail following a retrial it would be up to the judge to decide on the future royalty split for Stairway to Heaven, and this could be less than 50%, given that Wolfe’s claim of infringement is limited to the first two minutes of Stairway (an eight minute song). However, Wolfe is likely to argue that the opening two minutes of the song is the most important and recognizable part of Stairway, and therefore Wolfe is entitled to at least 50% of future royalties. How the court would rule on this issue is anyone’s guess.
Given Stairway to Heaven’s iconic stature and seemingly perpetual popularity even a decision awarding Wolfe significantly less than 50% of royalties for the next 49 years could be enough to justify the effort and expense Wolfe’s estate has invested in the case, and Led Zeppelin’s obstinacy in defending it.
Skidmore v. Led Zeppelin (9th Cir. Sept. 28, 2018)
p.s. Bustle? Google the lyrics of Stairway to Heaven
Update: The case was reheard en banc, and the jury’s verdict in favor of Led Zeppelin was upheld. Link
Second update (Aug. 2020): Skidmore has filed a cert petition with the Supreme Court. Seems like a long shot, but you never know. Link via Evernote.
Third update: Skidmore’s cert petition was denied.
FOOTNOTES
by Lee Gesmer | Sep 28, 2018 | Copyright
Can Disney prevent a commercial business – in this case Redbox – from reselling Disney’s movie download codes?
At first the answer was “no.”
My earlier post on this case* highlighted the California federal district court’s February 2018 opinion concluding that the language on Disney’s box-top packages failed to create a contract that would prevent Redbox from purchasing and reselling Disney movie download codes. However, I predicted that “Likely, in the future Disney will correct its ‘box-top license’ to make it legally enforceable . ..”
*To get the background facts of this case please read the initial post
Disney did just that when it released its Black Panther combo packs. Disney’s new packaging states that “Digital code redemption requires prior acceptance of licence terms and conditions. Codes only for personal use by recipient of this combination package or family member.” A warning elsewhere on the package states that “The digital code contained in this package may not be sold separately and may be redeemed only by the recipient of this combination package or a family member. Visit [various Disney websites listed] for code redemption and other applicable terms and conditions.” A paper insert states that “This digital code is part of a combination package and may not be sold separately,” and “Digital code redemption is subject to prior acceptance of license terms and conditions.”
However, purchasers of Disney combo packs now get a double-barreled contract – when they go to one of the Disney websites to download Black Panther, they are subject to an online agreement as well. Here, they must agree to Disney’s warning that “Digital codes originally packaged in a combination disc + code packages (sic) may not be sold separately and may be redeemed only by an individual who obtains the code in the original combination disc + code package ….”
All of this legal verbiage — both the box-top license and the online license — confronts consumers purchasing the Black Panther combo packs and using the download codes online, but it is aimed squarely at Redbox or anyone else that may have the temerity to purchase and resell Disney download codes.
Based on this onslaught of contractual terms the district court concluded that Disney has successfully entered into a restrictive contract with purchasers of the Black Panther combo packs. That is, when consumers (or Redbox) buy the Black Panther combo pack containing a disk and download code they are buying a restricted license to the code, and one of the terms of that license is that they may not resell it. By reselling the codes and encouraging purchasers to use codes violative of this contract, Redbox engaged in contributory copyright infringement.
Consistent with its February 2008 opinion, the court rejected Redbox’s first sale defense on the grounds that the case does not present a “single, discrete, particular copy to which the first sale doctrine could apply.” And, an enforceable license trumps first sale in any event, although the court did not rely on this.
Although the court had applied the copyright misuse doctrine in its earlier decision, it now rejected copyright misuse based on the changes to Disney’s contract terms. Under Disney’s “old” box-top license there was no Disney-purchaser contract, and Disney’s attempt to use its online contract to restrict resale of the contents of the combo packs constituted copyright misuse. However, Disney’s new box-top agreement cured this defect, since purchasers of the combo packs were now subject to a restricted license at the point of sale.
The outcome of this case is not surprising. The district court’s earlier decision gave Disney a roadmap to what it needed to do to correct the deficiencies that caused it to lose the first time. It was a simple matter for Disney to correct its packaging and online terms to make it clear that purchasers were buying the download codes subject to a restricted license, thus blocking Redbox’s resale strategy.
The court’s ruling applies only to Black Panther, not earlier movies distributed by Disney in the old packages – those products remain subject to the court’s earlier ruling. However, if this decision stands (I doubt Redbox will appeal) Redbox’s future distributing Disney download codes appears limited. Going forward Disney will, no doubt, use the same Black Panther contract language on all of its disk/download code combo packs, and Redbox’s sale of Disney download codes will eventually dry up as new movies replace older ones in Redbox’s kiosks.
by Lee Gesmer | Aug 12, 2018 | Noncompete Agreements
The Massachusetts Legislature has attempted to pass legislation regulating noncompete agreements every year since 2009. This year, it finally succeeded. The new law, which Governor Baker signed on August 10, 2018 and which is effective October 1, 2018, makes important changes to the body of Massachusetts non-compete “common-law” that has evolved over decades in the courts.
Here are the highlights of the new law.
Not Retroactive. The law is not retroactive. Any noncompete entered into before October 1, 2018 (for convenience I refer to this as “2018”) is unaffected. This means that, as a practical matter, there will be two bodies of law: judges will apply the “old” court-made common law to pre-2018 agreements, and the new statute, along with the common law that is unaffected and therefore remains in place, to agreements entered into after 2018.
Formalities. For a non-compete to be enforceable the employer must follow certain procedural formalities. The most important of these is that a written noncompete agreement must be provided to the employee before a formal offer of employment is made, and at least 10 days before employment begins. This means that the new employee can’t be ambushed with a noncompete after accepting a new job. “Nice to meet you, can you start work tomorrow?” will become a thing of the past, at least where the employer wants a noncompete in place.
The law does not address how an employer/employee negotiation factors into this 10-day requirement – if an employer gives a prospective employee an agreement 10 days in advance of the start date but the agreement is negotiated and changed, must the start date be pushed back to accommodate the 10-day requirement? I would think not, since the purpose of the 10 day notice period is to give the employee time to consider the noncompete and not be ambushed at the last minute, but until a court rules on it, this is an open question.
Another formality is that the noncompete must be signed by both the employer and employee and state that the employee has the right to consult counsel prior to signing. This is not a big deal, since most employment and noncompete agreements already include “consult counsel” boilerplate and are commonly signed by both parties, as is true of every written contract.
The One Year Limitation. A noncompete agreement may not impose a “restricted period” (the law’s term for the post-employment period the noncompete is in effect) longer than one year. I don’t view this as a significant change since one year or less has become the de facto standard in Massachusetts in recent years.
However, there is an exception: the agreement may be as long as two years if the employee breaches a fiduciary duty to the employer or unlawfully takes physical or electronic property belonging to the employer. Since, as a practical matter, employers will only learn this after-the-fact (during or following employment), this means that agreements may include an “alternative” provision (what Boston attorney Russell Beck calls a “springing noncompete”) that will “spring” into effect only if an employee engages in one of these violations.
Employees Terminated Without Cause/Laid Off. A noncompete agreement may not be enforced against certain categories of employees. The most important group is employees terminated without cause or laid off. This means that noncompetes will only be enforceable against employees who voluntarily resign or who are terminated for “cause” – a term usually described in an employment agreement.
This is a significant change from the pre-2018 law. However, it comes with the risk that some employers may broaden the definition of “for cause” termination in employment agreements or unjustifiably terminate an employee for cause in order to make a noncompete enforceable. If this happens the burden will be on the employee to show that the for-cause termination was unjustified. Whether the courts will find some way to penalize an employer who makes a mistake on this issue or acts in bad faith remains to be seen.
Hourly Employees Exempt. The law does not permit enforcement of noncompete agreements against “non-exempt” employees (such as hourly employees eligible for overtime) and students.
Employers have been criticized for unfairly restricting the job opportunities of workers in these groups. However, despite the publicity around a few high-profile, patently unfair (and unenforeable) cases where college students and low-paid hourly workers were required to sign noncompetes, these situations have been rare.
Noncompetes and the Sale of a Business. Massachusetts common law has treated noncompete agreements tied to the sale of a business more liberally than employer/employee agreements. The new law does not change this – it does not regulate noncompetes entered into by business owners in connection with the sale of a business. Often, agreements in this category are quite lengthy – three to five years is not uncommon – and this will not change.
Non-Solicitation/No-Hire Agreements. The law does not affect agreements in which an employee agrees not to solicit or hire employees of the employer or not to solicit or transact business with customers of the employer (“non-solicitation”/“no-hire” agreements).
This is an important exception that employers will take advantage of – a prohibition on soliciting customers of the former employer can substitute for much of what a noncompete accomplished for the employer, particularly in the case of employees involved in sales. However, this is not a blank check to impose a lengthy non-solicitation restriction, since these agreements will still be subject to the reasonableness standard of Massachusetts common law. And, the law around what constitutes a “solicitation” is not entirely clear.
Garden Leave. The section of the law that has rightly received the most attention is the “garden leave” provision, which will be unique to Massachusetts. This requires the employer to continue paying the employee, during the restricted period on a pro rata basis, no less than 50% of the employee’s annualized base salary, thereby financially enabling the employee to putter around in her garden during the restricted period (we can thank the Brits for the expression “garden leave”). The provision providing for this payment must be included in the non-compete agreement.
However, the law contains what appears to be a major loophole: the employer and employee may agree on “other mutually-agreed upon consideration.” While the interpretation of this phrase is likely to be the subject of litigation, on its face there is nothing in the law requiring that the agreed upon consideration be “reasonable.” For example, in theory the parties may agree that the employee will receive garden leave payments in an amount significantly less than 50%. Or, the parties could agree that the employee will receive a small signing bonus in lieu of post-employment garden leave.
Whether there are any limits to how far below 50% of base salary an employer can go, or what other forms of alternative consideration will be acceptable, will have to be determined by the courts.
Noncompetes After the Employee Has Started Work. In cases where an employer fails to ask an employee to sign a noncompete when hired, employers sometimes will ask employees to enter into noncompetes after they have started working, sometimes months or even years later. Whether the employee’s continued employment is adequate consideration to the employee for such an agreement has been the subject of legal controversy: most cases, but not all, have held that continued employment is sufficient consideration for a noncompete.
The new law attempts to clear this up by requiring that in this situation the agreement be supported by “fair and reasonable consideration independent from the continuation of employment.” However, the law does not make clear whether this requires garden leave pay, mutually-agreed upon consideration or something else. It will be up to the courts to interpret and apply the meaning of this provision in the law.
Employers Outside Massachusetts. An out-of-state employer that has workers in Massachusetts may hope that it can avoid the Massachusetts noncompete law by having the noncompete stipulate that the parties are bound by the law of another state – one less restrictive of noncompetes than the new Massachusetts law.
However, the Massachusetts law is designed to prevent this. The law applies if the employee is, and has been for at least 30 days immediately preceding cessation of employment, a resident of or employed in Massachusetts at the time of termination of employment.
And treating the worker as an independent contractor will not avoid application of the law – the statute treats independent contractors the same as employees.
What To Do Now and Implications for the Future. Many companies have standard noncompete agreements that they have used for years, and that they rarely reviewed in the past. However, it’s safe to assume that as of October 1, 2018, any boilerplate non-compete agreement currently in use in Massachusetts will be obsolete and unenforceable. Any company that plans to use a noncompete agreement after that date should begin the process of revising its agreements in time to meet this deadline.
As far as the future goes, one consequence of the new law is that noncompetes will be more, not less, complex.
For example, employers and employees must now struggle to understand the various scenarios that will be standard in post-2018 noncompete agreements:
- if the employee resigns the noncompete is enforceable for up to one year;
- if the employee is terminated (not for cause) or laid off the noncompete is not enforceable;
- if the employee is terminated for cause the noncompete is enforceable for up to one year;
- if the employee engages in breach of fiduciary duty or theft (during or after employment) the noncompete is enforceable for up to two years.
All of this needs to be spelled out in the noncompete agreement before the employee starts work.
Intertwined with these scenarios are the choices inherent in the garden leave provision:
- will the employer and employee accept the statutory default of up to six months garden leave at one-half salary?
- will they negotiate an alternative arrangement?
- If they negotiate an alternative arrangement, what rules apply?
Lawyers will struggle to explain all of this to bewildered clients, both employers and employees, for years to come.
