David S. Rosenthal

My focus

Protecting employers from the misuse of their confidential information and trade secrets by former employees is one of the primary focuses of my litigation practice. I focus on responding quickly and successfully to such threats by obtaining injunctions to prevent the misappropriation of valuable information and unfair competition. In some cases, I have been called upon to represent talented individuals in lift out situations, allowing them to compete fairly using their personal skills and know-how in more suitable employment settings.

Employment discrimination litigation, defending wage and hour class action matters and contesting whistleblower claims—all on behalf of employers—comprise the balance of my litigation practice. A persuasive advocate for my clients, I have a long track record of success in defeating such claims, by trying cases to judgment or achieving resolutions on very favorable terms.

Dispute avoidance is also a large part of my practice. Assisting clients with legally compliant policies and procedures, providing practical advice before the dispute escalates, and using practiced, successful mediation techniques have contributed to many advantageous resolutions of potentially damaging disputes.

I view my job as being a problem solver. I make my clients’ jobs easier by helping them with what are often emotionally charged, and legally complex, decisions about employees and resolving them practically and efficiently. Many clients have told me they want an employment lawyer who tells them what they can do, not what they can’t do. I try to be that person.

Representative experience

• Defended a multi-million dollar wage and hour class action brought by present and former employees of a large technology company by service engineers claiming entitlement to unpaid overtime. The case was resolved for a small percentage of the claim after aggressive discovery showed that class certification would likely be denied.
• Obtained summary judgment on behalf of national transportation company dismissing discrimination claim in federal court, where the allegation was failure to accommodate an alleged disability under the Americans with Disabilities Act.
• Secured preliminary injunctions in numerous matters prohibiting former employees from competing with their former employer and using their trade secrets, confidential information and customer good will, including cases in the beverage, health care, pharmaceutical, hospitality, lumber, industrial gases, construction, banking and investment management industries.
• Successfully defended a national restaurant chain in multiple wage and hour class actions brought in several states.
• Successfully defended an international retailer and its CEO against claims of sexual harassment asserted by a former marketing manager. In this case, the defense involved combining a sophisticated public relations campaign to rebut the substantial press coverage of the plaintiff’s claims, and the use of depositions to show that the claim was not meritorious.
• Successfully resolved a SOX whistleblower claim brought by a former employee of a pharmaceutical company alleging retaliatory firing following a complaint of financial reporting irregularities.

Looking ahead

The myriad employment laws and regulations are a mine field for employers. Increased employee mobility will require employers to be especially diligent in protecting their intellectual capital from misuse by departing employees. As the law provides greater protections for whistleblowers, employers will require experienced advice on compliance programs and HR practices to protect against retaliation claims.

Insights

• “Labor & Employment Law:  Significant Developments for the Home Health Care Industry,” New England Home Care Conference and Trade Show, June 1, 2012
• “Best Practices in Conducting Lift-Outs of Investment Management Professionals:  Enforcement of Post-Employment Restrictions and Protection of the Search Firm,” October 30, 2009
• “Best Practices in Conducting Lift-Outs of Investment Management Professionals: Enforcement of Post-Employment Restrictions under Massachusetts Law,” January 6, 2009
• “Managing the Workforce in a Down Economy:  Guidance for the Proactive Employer,” May 6, 2008
• “Noncompete Agreements and Investment Management Professionals,” January 15, 2009
• “Retaliation & Whistleblowing Lawsuits,” March 26, 2008
• “Privacy in the Workplace (Is that really an oxymoron?),” July 10, 2007
• “Whistleblower Claims Under the Sarbanes Oxley Act,” May 10, 2007
• “Whistleblowing and Retaliation,” Association of Corporate Counsel Breakfast Briefing, January 25, 2007 
• “What Board Members and Senior Executives Need to Know About Recent Trends in Non-Compete Agreements,” October 31, 2005
• “The Carrot and Stick:  Use of Post-Employment Restraints on Competition to Retain Employees,” October 9, 2001
• “Alternative Dispute Resolution of Employment Claims,” October 9, 2001
• “The Current Status of the Inevitable Disclosure Doctrine:  Anything But Inevitable”