Revisiting Mad Men: an English law perspective
Posted on 7th February 2025 at 14:23
The acclaimed US TV series Mad Men, a step back in time to the Madison Avenue advertising industry, featured a far reaching end to Season 3. (Spoiler alert.) In the face of a corporate disposal that would have left the Sterling Cooper top players in danger of demotion, involuntary retirement or outright redundancy as a result of closure, Don hatches a plan for a buyout which develops into a concerted unilateral departure alongside founders Roger and Bert. Lane’s hesitancy is overcome when he realises that he will be surplus to requirements otherwise, and he climbs on board.
Over an action packed weekend, key staff are persuaded to follow, key clients are secured, and temporary premises are obtained. The new Sterling Cooper Draper Pryce is up and running. On the Monday morning, Lane reacts to the telephone rage of the overseas parent director with “and a happy Christmas to you too” before hanging up on him.
This was, of course, TV drama from the USA. What might have come into play under English law if this had been an exceptionally serious team defection costing the ex-employer many thousands of pounds’ worth of lost business?
First up, TUPE. Could Don and the others have objected to being transferred via the corporate disposal and business closure? If their salary, benefits and conditions remained unaltered, they would need a very good reason – historical personal factors? – to decline and fall back on redundancy. Far more likely, of course, that their seniority would have led to negotiated exits, with careful protection being built in to prevent client solicitation.
Now for their frenzied activities over the weekend. Surely any senior executive in such an industry would have already been bound by restraints upon client solicitation, client dealings, key employee enticement, and possibly even competition? And what about the removal of confidential information in the form of job folders?
One factor then coming into play over in Madison Avenue was Lane’s decision to fire Don, Roger and Bert summarily. At that point in time, they had committed no breach of their employment contracts. They would have been entitled to notice. Failure to give notice, in the absence of a well drafted service agreement covering the possibility of lawful payment in lieu, would place Sterling Cooper in fundamental breach of contract. A contract breaker cannot pick and choose parts of a contract that it would still like to uphold. Any post termination restraints would be null and void.
But it is not of course that simple. The summary dismissals were a device. Lane was just as tainted as the others in the plot to spirit away Sterling Cooper’s lifeblood. In the real world, all of the conspirators would have been on the hook for breach of fiduciary duties.
We are left to guess at what the English parent company in Mad Men would have done, or actually did, in the face of one of its valuable assets suddenly becoming materially less valuable to that parent’s corporate suitor, as a result of the activity of unfaithful senior employees. This was the early sixties. It might have assessed the communication difficulties, and the jurisdictional complications, and taken it on the chin. In the present day, by contrast, the legal threats would have been flying by the Monday afternoon, and steps might already have been in hand to seek interim injunctions. None of that would have been any concern to TV scriptwriters. But for solicitors, well, that’s definitely another story…
Do you have a problem with enforcing restraint clauses in employment contracts? Or are you a senior executive needing to find out if they are going to be upheld against you? We can help. Contact David Cooper on 0121 352 5402 or via dmc@coxcooper.co.uk .
Tagged as: competition, confidential information, enticement, fidelity, fiduciary duties, interim injunction, redundancy, restraint clause, solicitation
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