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Bankruptcy Slowdown Prompts Lawyers to Pivot to Transactions and Litigation

July 14, 2021

Bankruptcy Slowdown Prompts Lawyers to Pivot to Transactions and Litigation
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Bret A. Cohen

Bret A. Cohen

Partner

One Financial Center
Suite 3500
Boston, MA 02111
T 617.217.4617
F 617.217.4710
280 Park Avenue
15th Floor West
New York, NY 10017
T 646.428.2600
F 646.428.2610
bret.cohen@nelsonmullins.com
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Bret chairs the Labor and Employment Practice. His practice covers a range of industries in the drafting and enforcement of non–compete, confidentiality, and other employment–related agreements throughout the United States. He has also represented individual employees, typically high level executives, in such matters on behalf of the companies who seek to hire them. Bret’s practice...

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Bret chairs the Labor and Employment Practice. His practice covers a range of industries in the drafting and enforcement of non–compete, confidentiality, and other employment–related agreements throughout the United States. He has also represented individual employees, typically high level executives, in such matters on behalf of the companies who seek to hire them. Bret’s practice has also regularly involved advising public company executives on terminations and employment issues and providing advice on a range of matters involving employment agreements, termination of high level executives, worker classification, deal diligence, and hiring oversight and best practices. His practice covers both the negotiation and drafting of relevant agreements and the regular enforcement in litigation of the claims of employers seeking to enforce those agreements. 

Bret writes and presents on employment law issues and has authored a range of articles relating to the Defend Trade Secrets Act. He frequently lectures on practice before the Massachusetts Commission Against Discrimination and on practice before state and federal courts. Bret has served as a contributing author for the Employment Litigation chapter of the Annual Review of Developments in Business and Corporate Litigation, American Bar Association, for a number of years. 

Bret A. Cohen

has also regularly involved advising public company executives on terminations and employment issues and providing advice on a range of matters involving employment agreements, termination of high level executives, worker classification, deal diligence, and hiring oversight and best practices. His practice covers both the negotiation and drafting of relevant agreements and the regular enforcement in litigation of the claims of employers seeking to enforce those agreements. 

Bret writes and presents on employment law issues and has authored a range of articles relating to the Defend Trade Secrets Act. He frequently lectures on practice before the Massachusetts Commission Against Discrimination and on practice before state and federal courts. Bret has served as a contributing author for the Employment Litigation chapter of the Annual Review of Developments in Business and Corporate Litigation, American Bar Association, for a number of years. 

Experience

Following is a selected sampling of matters and is provided for informational purposes only. Past success does not indicate the likelihood of success in any future matter.

Experience

The following list provides some examples of work in which Mr. Cohen has successfully represented his clients.

  • McCusker v. hibu, Inc.
    In an action filed in the Eastern District of New York, represented a global digital advertising and internet services company in a suit by a former executive who sued the client after his termination in late 2014, asserting claims for breach of contract, defamation, and for violations of the Pennsylvania Wage Payment and Collection Law. As the lead counsel, Bret and his team guided the client through pre–trial proceedings and achieved a favorable settlement.

  • Panera, LLC v. Nettles and Papa John’s
    In an action filed in the Eastern District of Missouri, represented an international fast–casual restaurant chain in a case involving the violation of a former employee’s non–competition agreement, and the theft of trade secrets and confidential information. The team led by Bret won a temporary restraining order that prevented the former employee from immediately joining a competing restaurant chain. 

  • Plymouth County District Attorney – Bradley v. Cruz
    In the U.S. District Court of Massachusetts, represented the District Attorney for a large Massachusetts county in a case against a former Assistant District Attorney who was fired for cause. The plaintiff alleges that his employment was terminated because he refused to support the client’s re–election campaign and because he was a whistle–blower regarding unethical legal practices condoned by the client. Bret was appointed a Special Attorney General for the Commonwealth of Massachusetts specifically for the purpose of representing the client in this matter. He has led the defense efforts through pre–trial motions, litigation surrounding the potential leaking of confidential documents, and trial preparation.

  • Cynosure, Inc. v. Spencer Detter, John Featherstone, Kipp Davit, Larry Laber , and Cutera , Inc.
    In Middlesex Superior Court, represented a medical device company facing a motion for a preliminary injunction seeking to bar two of its new hires from working for the company. Bret won a denial of the motion, with the court ruling that the plaintiff had not proven that its former employees had violated their non–competition agreements, improperly kept confidential information, or would cause the plaintiff to suffer irreparable harm. 

  • Tibco Software, Inc. v. Zephyr Health, Inc. and Kevin Willoe
    In Suffolk Superior Court, represented a data analytics company facing a non–compete case involving an arbitration clause. The client was sued by the former employer of a new employee, with the former employer claiming the employee was violating his employment agreement’s non–compete clause. The former employer brought motions for emergency discovery and relief. Bret succeeded in compelling arbitration, with the court agreeing that the employment agreement’s arbitration clause could compel the former employer to arbitrate.  

  • Cosi v. Kelleher and Panera 
    In the Supreme Court of the state of New York, Orange County, represented a large fast–casual restaurant chain in a suit brought by the former employer of a new high–level employee, claiming the employee violated his non–compete by taking a job at a competitor before his 18–month waiting period expired. Bret won a court order allowing the employee to continue his four month training period with his new company, as the court decided that the 18–month waiting period could hinder the employee from earning a living.

  • Sentient Jet, Inc. v. Brian Higgins, Michael Payne, and Private Flight Advisors
    In Norfolk Superior Court, represented a private charter jet aircraft service in a complaint against two former employees for violating their confidentiality, noncompetition, and non–solicitation agreements. Both had worked for the client as sales directors. After resigning their positions, the defendants left to begin their own private charter jet company that would be operating in direct competition with the client. They were suspected of stealing confidential information with the intent of soliciting the client’s customers. Bret won a court order telling the former employees to refrain from violating their contracts, soliciting the client’s customers, and working with or for their new company for a period of five years. They also had to return all stolen confidential materials.

  • DiPietro v. Sipex Corporation 
    In Middlesex Superior Court, represented an electronics company in an action brought by a former employee seeking $800,000 in service benefits. The client counterclaimed for $150,000 which it was owed under a promissory note signed by the plaintiff. The client filed two claims for summary judgment, one for the former employee’s claims and another for its own counterclaims. Both motions for summary judgment were granted, and soon after the former employee filed a notice of appeal. The client then filed for costs and pre–judgment interests, getting the former employee to pay for deposition costs. The Massachusetts Appeals Court reversed the Middlesex Court’s decision and remanded the case for further proceedings. The case was then moved back to the Middlesex Superior Court for a final decision. Bret guided the parties to a final settlement agreement, and they filed a joint stipulation of dismissal the Middlesex Superior Court. 

  • Wordwave, Inc. d/b/a LegaLink v. Dalia Owens and Jones Reporting Company, Inc.
    In Suffolk Superior Court, represented a company in the business of hiring independent contractors to cover shorthand reporting, court reporting, and transcription services for both small and large law firms and businesses. The client brought suit against a former employee for violating her non–compete and confidentiality agreement. The former employee had resigned and transferred to a direct competitor, and had been soliciting the client’s employees and customers both during and after her employment with the client. Bret achieved a favorable settlement. 

  • Kevin McGorry v. Brightcove, Inc., and Adam Berrey 
    Before the Massachusetts Commission Against Discrimination ("MCAD"), represented a software company and its marketing supervisor in a complaint brought by a former employee alleging discrimination due to disability. The complainant stated that at the time he was hired he informed his supervisor that he suffered from partially disabling medical conditions, and alleged that his employment was terminated because of the company’s discrimination against his disabilities and refusal to accommodate him. The client responded that the complainant failed to inform them of his disabilities until a few months earlier. Shortly after receiving this information, the complainant’s employment was terminated due to his sub–par performance and inability to cooperate with fellow employees. Prior to this, he had received several warnings from his supervisor. The Commission decided that there was a lack of probable cause against the client, and that the complainant failed to present a finding of reasonable fact to make the marketing supervisor individually liable. 

  • Represented co–founder and CEO Henry Helgeson in payment technology company Cayan’s acquisition by TSYS, a global payments solutions provider, a transaction valued at $1.05 billion. 

Previous Professional Experience

  • Former member and co–chair, Employee Mobility, Non–Competes & Trade Secrets Practice, Mintz Levin
Following is a selected sampling of matters and is provided for informational purposes only. Past success does not indicate the likelihood of success in any future matter.

Experience

The following list provides some examples of work in which Mr. Cohen has successfully represented his clients.

  • McCusker v. hibu, Inc.
    In an action filed in the Eastern District of New York, represented a global digital advertising and internet services company in a suit by a former executive who sued the client after his termination in late 2014, asserting claims for breach of contract, defamation, and for violations of the Pennsylvania Wage Payment and Collection Law. As the lead counsel, Bret and his team guided the client through pre–trial proceedings and achieved a favorable settlement.

  • Panera, LLC v. Nettles and Papa John’s
    In an action filed in the Eastern District of Missouri, represented an international fast–casual restaurant chain in a case involving the violation of a former employee’s non–competition agreement, and the theft of trade secrets and confidential information. The team led by Bret won a temporary restraining order that prevented the former employee from immediately joining a competing restaurant chain. 

  • Plymouth County District Attorney – Bradley v. Cruz
    In the U.S. District Court of Massachusetts, represented the District Attorney for a large Massachusetts county in a case against a former Assistant District Attorney who was fired for cause. The plaintiff alleges that his employment was terminated because he refused to support the client’s re–election campaign and because he was a whistle–blower regarding unethical legal practices condoned by the client. Bret was appointed a Special Attorney General for the Commonwealth of Massachusetts specifically for the purpose of representing the client in this matter. He has led the defense efforts through pre–trial motions, litigation surrounding the potential leaking of confidential documents, and trial preparation.

  • Cynosure, Inc. v. Spencer Detter, John Featherstone, Kipp Davit, Larry Laber , and Cutera , Inc.
    In Middlesex Superior Court, represented a medical device company facing a motion for a preliminary injunction seeking to bar two of its new hires from working for the company. Bret won a denial of the motion, with the court ruling that the plaintiff had not proven that its former employees had violated their non–competition agreements, improperly kept confidential information, or would cause the plaintiff to suffer irreparable harm. 

  • Tibco Software, Inc. v. Zephyr Health, Inc. and Kevin Willoe
    In Suffolk Superior Court, represented a data analytics company facing a non–compete case involving an arbitration clause. The client was sued by the former employer of a new employee, with the former employer claiming the employee was violating his employment agreement’s non–compete clause. The former employer brought motions for emergency discovery and relief. Bret succeeded in compelling arbitration, with the court agreeing that the employment agreement’s arbitration clause could compel the former employer to arbitrate.  

  • Cosi v. Kelleher and Panera 
    In the Supreme Court of the state of New York, Orange County, represented a large fast–casual restaurant chain in a suit brought by the former employer of a new high–level employee, claiming the employee violated his non–compete by taking a job at a competitor before his 18–month waiting period expired. Bret won a court order allowing the employee to continue his four month training period with his new company, as the court decided that the 18–month waiting period could hinder the employee from earning a living.

  • Sentient Jet, Inc. v. Brian Higgins, Michael Payne, and Private Flight Advisors
    In Norfolk Superior Court, represented a private charter jet aircraft service in a complaint against two former employees for violating their confidentiality, noncompetition, and non–solicitation agreements. Both had worked for the client as sales directors. After resigning their positions, the defendants left to begin their own private charter jet company that would be operating in direct competition with the client. They were suspected of stealing confidential information with the intent of soliciting the client’s customers. Bret won a court order telling the former employees to refrain from violating their contracts, soliciting the client’s customers, and working with or for their new company for a period of five years. They also had to return all stolen confidential materials.

  • DiPietro v. Sipex Corporation 
    In Middlesex Superior Court, represented an electronics company in an action brought by a former employee seeking $800,000 in service benefits. The client counterclaimed for $150,000 which it was owed under a promissory note signed by the plaintiff. The client filed two claims for summary judgment, one for the former employee’s claims and another for its own counterclaims. Both motions for summary judgment were granted, and soon after the former employee filed a notice of appeal. The client then filed for costs and pre–judgment interests, getting the former employee to pay for deposition costs. The Massachusetts Appeals Court reversed the Middlesex Court’s decision and remanded the case for further proceedings. The case was then moved back to the Middlesex Superior Court for a final decision. Bret guided the parties to a final settlement agreement, and they filed a joint stipulation of dismissal the Middlesex Superior Court. 

  • Wordwave, Inc. d/b/a LegaLink v. Dalia Owens and Jones Reporting Company, Inc.
    In Suffolk Superior Court, represented a company in the business of hiring independent contractors to cover shorthand reporting, court reporting, and transcription services for both small and large law firms and businesses. The client brought suit against a former employee for violating her non–compete and confidentiality agreement. The former employee had resigned and transferred to a direct competitor, and had been soliciting the client’s employees and customers both during and after her employment with the client. Bret achieved a favorable settlement. 

  • Kevin McGorry v. Brightcove, Inc., and Adam Berrey 
    Before the Massachusetts Commission Against Discrimination ("MCAD"), represented a software company and its marketing supervisor in a complaint brought by a former employee alleging discrimination due to disability. The complainant stated that at the time he was hired he informed his supervisor that he suffered from partially disabling medical conditions, and alleged that his employment was terminated because of the company’s discrimination against his disabilities and refusal to accommodate him. The client responded that the complainant failed to inform them of his disabilities until a few months earlier. Shortly after receiving this information, the complainant’s employment was terminated due to his sub–par performance and inability to cooperate with fellow employees. Prior to this, he had received several warnings from his supervisor. The Commission decided that there was a lack of probable cause against the client, and that the complainant failed to present a finding of reasonable fact to make the marketing supervisor individually liable. 

  • Represented co–founder and CEO Henry Helgeson in payment technology company Cayan’s acquisition by TSYS, a global payments solutions provider, a transaction valued at $1.05 billion. 

Previous Professional Experience

  • Former member and co–chair, Employee Mobility, Non–Competes & Trade Secrets Practice, Mintz Levin

Articles & Speeches

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Recognitions

The bar rules of some states require that the standards for an attorney’s inclusion in certain public accolades or recognitions be provided. When such accolades or recognitions are listed, a hyperlink is provided that leads to a description of the respective selection methodology.

Professional Activities

  • Former Chair, American Bar Association Subcommittee on Employment Litigation (2003–2009)
  • Former chair, Massachusetts Joint Bar Committee for Judicial Appointments

Community

  • Boston Advisory Board, Concussion Legacy Foundation (2020)
  • Finance Committee, Lieutenant Governor Karyn Polito (2012–present)
  • Former president, Board of Directors of the Natick Montessori School (2004–2006)
  • Advisory Board, Concussion Legacy Foundation (2010–present)

Bret chairs the Labor and Employment Practice. His practice covers a range of industries in the drafting and enforcement of non–compete, confidentiality, and other employment–related agreements throughout the United States. He has also represented individual employees, typically high level executives, in such matters on behalf of the companies who seek to hire them. Bret’s practice... has also regularly involved advising public company executives on terminations and employment issues and providing advice on a range of matters involving employment agreements, termination of high level executives, worker classification, deal diligence, and hiring oversight and best practices. His practice covers both the negotiation and drafting of relevant agreements and the regular enforcement in litigation of the claims of employers seeking to enforce those agreements. 

Bret writes and presents on employment law issues and has authored a range of articles relating to the Defend Trade Secrets Act. He frequently lectures on practice before the Massachusetts Commission Against Discrimination and on practice before state and federal courts. Bret has served as a contributing author for the Employment Litigation chapter of the Annual Review of Developments in Business and Corporate Litigation, American Bar Association, for a number of years. 

Experience

Following is a selected sampling of matters and is provided for informational purposes only. Past success does not indicate the likelihood of success in any future matter.

Experience

The following list provides some examples of work in which Mr. Cohen has successfully represented his clients.

  • McCusker v. hibu, Inc.
    In an action filed in the Eastern District of New York, represented a global digital advertising and internet services company in a suit by a former executive who sued the client after his termination in late 2014, asserting claims for breach of contract, defamation, and for violations of the Pennsylvania Wage Payment and Collection Law. As the lead counsel, Bret and his team guided the client through pre–trial proceedings and achieved a favorable settlement.

  • Panera, LLC v. Nettles and Papa John’s
    In an action filed in the Eastern District of Missouri, represented an international fast–casual restaurant chain in a case involving the violation of a former employee’s non–competition agreement, and the theft of trade secrets and confidential information. The team led by Bret won a temporary restraining order that prevented the former employee from immediately joining a competing restaurant chain. 

  • Plymouth County District Attorney – Bradley v. Cruz
    In the U.S. District Court of Massachusetts, represented the District Attorney for a large Massachusetts county in a case against a former Assistant District Attorney who was fired for cause. The plaintiff alleges that his employment was terminated because he refused to support the client’s re–election campaign and because he was a whistle–blower regarding unethical legal practices condoned by the client. Bret was appointed a Special Attorney General for the Commonwealth of Massachusetts specifically for the purpose of representing the client in this matter. He has led the defense efforts through pre–trial motions, litigation surrounding the potential leaking of confidential documents, and trial preparation.

  • Cynosure, Inc. v. Spencer Detter, John Featherstone, Kipp Davit, Larry Laber , and Cutera , Inc.
    In Middlesex Superior Court, represented a medical device company facing a motion for a preliminary injunction seeking to bar two of its new hires from working for the company. Bret won a denial of the motion, with the court ruling that the plaintiff had not proven that its former employees had violated their non–competition agreements, improperly kept confidential information, or would cause the plaintiff to suffer irreparable harm. 

  • Tibco Software, Inc. v. Zephyr Health, Inc. and Kevin Willoe
    In Suffolk Superior Court, represented a data analytics company facing a non–compete case involving an arbitration clause. The client was sued by the former employer of a new employee, with the former employer claiming the employee was violating his employment agreement’s non–compete clause. The former employer brought motions for emergency discovery and relief. Bret succeeded in compelling arbitration, with the court agreeing that the employment agreement’s arbitration clause could compel the former employer to arbitrate.  

  • Cosi v. Kelleher and Panera 
    In the Supreme Court of the state of New York, Orange County, represented a large fast–casual restaurant chain in a suit brought by the former employer of a new high–level employee, claiming the employee violated his non–compete by taking a job at a competitor before his 18–month waiting period expired. Bret won a court order allowing the employee to continue his four month training period with his new company, as the court decided that the 18–month waiting period could hinder the employee from earning a living.

  • Sentient Jet, Inc. v. Brian Higgins, Michael Payne, and Private Flight Advisors
    In Norfolk Superior Court, represented a private charter jet aircraft service in a complaint against two former employees for violating their confidentiality, noncompetition, and non–solicitation agreements. Both had worked for the client as sales directors. After resigning their positions, the defendants left to begin their own private charter jet company that would be operating in direct competition with the client. They were suspected of stealing confidential information with the intent of soliciting the client’s customers. Bret won a court order telling the former employees to refrain from violating their contracts, soliciting the client’s customers, and working with or for their new company for a period of five years. They also had to return all stolen confidential materials.

  • DiPietro v. Sipex Corporation 
    In Middlesex Superior Court, represented an electronics company in an action brought by a former employee seeking $800,000 in service benefits. The client counterclaimed for $150,000 which it was owed under a promissory note signed by the plaintiff. The client filed two claims for summary judgment, one for the former employee’s claims and another for its own counterclaims. Both motions for summary judgment were granted, and soon after the former employee filed a notice of appeal. The client then filed for costs and pre–judgment interests, getting the former employee to pay for deposition costs. The Massachusetts Appeals Court reversed the Middlesex Court’s decision and remanded the case for further proceedings. The case was then moved back to the Middlesex Superior Court for a final decision. Bret guided the parties to a final settlement agreement, and they filed a joint stipulation of dismissal the Middlesex Superior Court. 

  • Wordwave, Inc. d/b/a LegaLink v. Dalia Owens and Jones Reporting Company, Inc.
    In Suffolk Superior Court, represented a company in the business of hiring independent contractors to cover shorthand reporting, court reporting, and transcription services for both small and large law firms and businesses. The client brought suit against a former employee for violating her non–compete and confidentiality agreement. The former employee had resigned and transferred to a direct competitor, and had been soliciting the client’s employees and customers both during and after her employment with the client. Bret achieved a favorable settlement. 

  • Kevin McGorry v. Brightcove, Inc., and Adam Berrey 
    Before the Massachusetts Commission Against Discrimination ("MCAD"), represented a software company and its marketing supervisor in a complaint brought by a former employee alleging discrimination due to disability. The complainant stated that at the time he was hired he informed his supervisor that he suffered from partially disabling medical conditions, and alleged that his employment was terminated because of the company’s discrimination against his disabilities and refusal to accommodate him. The client responded that the complainant failed to inform them of his disabilities until a few months earlier. Shortly after receiving this information, the complainant’s employment was terminated due to his sub–par performance and inability to cooperate with fellow employees. Prior to this, he had received several warnings from his supervisor. The Commission decided that there was a lack of probable cause against the client, and that the complainant failed to present a finding of reasonable fact to make the marketing supervisor individually liable. 

  • Represented co–founder and CEO Henry Helgeson in payment technology company Cayan’s acquisition by TSYS, a global payments solutions provider, a transaction valued at $1.05 billion. 

Previous Professional Experience

  • Former member and co–chair, Employee Mobility, Non–Competes & Trade Secrets Practice, Mintz Levin

Education

  • Saint Louis University School of Law, JD
  • University of Illinois, BA

Admissions

  • District of Columbia
  • Illinois
  • Massachusetts
  • Missouri
  • New Hampshire
  • New York
  • U.S. Court of Appeals for the First Circuit
  • U.S. Court of Appeals for the Sixth Circuit
  • U.S. Court of Appeals for the Eighth Circuit
  • U.S. District Court for the Northern District of Illinois
  • U.S. District Court for the Southern District of Illinois
  • U.S. District Court for the Central District of Illinois
  • U.S. District Court for the District of Massachusetts
  • U.S. District Court for the Eastern District of Missouri
  • U.S. District Court for the Western District of Missouri
  • U.S. District Court for the Eastern District of New York
  • U.S. District Court for the Southern District of New York
  • U.S. District Court for the Western District of New York
  • U.S. District Court for the Western District of Michigan
  • District of Columbia Court of Appeals

Practice Areas

Industries

The bar rules of some states require that the standards for an attorney's inclusion in certain public accolades or recognitions be provided. When such accolades or recognitions are listed, a hyperlink is provided that leads to a description of the respective selection methodology.

  • Former Chair, American Bar Association Subcommittee on Employment Litigation (2003–2009)
  • Former chair, Massachusetts Joint Bar Committee for Judicial Appointments
  • Boston Advisory Board, Concussion Legacy Foundation (2020)
  • Finance Committee, Lieutenant Governor Karyn Polito (2012–present)
  • Former president, Board of Directors of the Natick Montessori School (2004–2006)
  • Advisory Board, Concussion Legacy Foundation (2010–present)

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