Mark W. Lerner, Co-Chair of the firm’s Employment Practices and Litigation group, is a leading employment litigator who regularly litigates and counsels clients on non-competition agreements, employee raiding and lift-outs, discrimination and harassment claims, theft of company information, executive compensation disputes, terminations and lay-offs, and wage and hour actions. A former federal prosecutor, Mark frequently tries cases. His trial prowess and the threat it implies enable him often to resolve cases early for his clients.
Mark also conducts major and comprehensive internal investigations of employment issues, including sexual harassment, and negotiates disputes with the Department of Justice, U.S. Attorneys, District Attorneys, the FBI, FINRA and the Department of Labor.
Mark’s clients cover a wide range of industries, including apparel, energy, financial services, hedge funds, private equity, real estate, and media, among others.
Mark has been recognized by Chambers USA, The Legal 500 and Benchmark Litigation as a top Labor and Employment Law practitioner. The National Law Journal named him an Employment Law Trailblazer and Lawdragon lists Mark as one of the Most Powerful Employment Lawyers in the U.S. In 2019, under Mark’s leadership, the Employment Practices and Litigation group was named Litigation Department of the Year for Labor and Employment by the New York Law Journal.
Non-Competition Agreements and Restrictive Covenants
- Douglas Elliman Realty in a suit against one of Elliman’s former managers and a competitor firm involving a wrongful scheme to move a dozen agents to the competitor firm. We won a $3.8 million jury verdict on behalf of Elliman, including $2.5 million in punitive damages.
- Celebrity real estate broker Ryan Serhant – of Bravo’s Million Dollar Listing TV show - in his separation from Nest Seekers, his prior employer, and in founding his new independent brokerage and media company, “SERHANT.”
- Northwell Health, one of the largest hospital systems in the U.S., in a lawsuit to enforce employment agreements, including covenants not to compete.
- XPO Logistics and GXO Logistics in multiple state and federal court litigations stemming from disputes over warehouse management services contracts, transportation contracts, theft of trade secrets and non-compete agreements.
- Former members of Jones Lang LaSalle in non-competition, compensation and other separation issues involving the formation of their new firm, AKS Capital Partners.
- Geneva Energy Markets in defense of claims that the company hired employees with enforceable non-competition agreements.
- Perella Weinberg Partners, a global financial services firm, in navigating issues involving post-employment non-competition and non-solicitation covenants.
Discrimination and Sexual Harassment
- CenturyLink in defense of an employee’s allegations of sexual harassment and gender discrimination.
- Douglas Elliman Realty in defense of an EEOC case filed by a real estate agent asserting sexual harassment claims.
- Godiva, the international chocolate manufacturer, in defense of disability discrimination claims based on the alleged inaccessibility of Godiva’s website to sight-impaired individuals. The matter settled favorably.
- A Chinese-American woman in a sexual harassment and discrimination complaint against a Chinese-based investment bank and two of its employees. The matter settled prior to trial.
- An employee at Dentons, the international law firm, in defense of claims of sexual harassment, a highly publicized “#MeToo” claim.
- New York Post in defense of a race discrimination lawsuit brought by certain reporters, in which we obtained summary judgment dismissing all claims.
- HedgeServ, a fund administrator with over $300 billion in AUM, in discrimination and other employee matters. We obtained dismissal of an EEOC matter and settled another discrimination claim.
- Fox News Network in defense of a sexual harassment class action filed by the EEOC in New York federal court.
- Phillips-Van Heusen, a global apparel maker and retailer, in defense of an employee’s pregnancy discrimination claim.
- An international law firm in defense of complaints of discrimination.
Private Equity Compensation and Other Disputes
- Saw Mill Capital in defense of claims for carried interest and other compensation by a former partner, resulting in a complete victory for Saw Mill Capital after a trial.
- John Brice, former Chief Investment Officer and board member of private equity fund CarVal Investors, in a case against CarVal after it terminated Mr. Brice’s employment and threatened to withhold $230 million in compensation. After winning a preliminary injunction, the matter settled favorably.
- Bridgewater Associates in employment matters involving protection of Bridgewater’s intellectual property.
- Senior Managers of Och-Ziff Capital in disputes with the company’s founding partners and board of directors.
Wage and Hour Litigation
- Douglas Elliman Realty in defeating a two-stage federal and state lawsuit in which a real estate sales agent claimed to be an “employee” and not an independent contractor under the FLSA and NY Labor Law. At stake was the classification of Elliman’s 6,000 New York agents. We defeated all claims.
- Douglas Elliman Realty in a wage and hour case asserted by a former employee in the Superior Court of California.
- YRC Worldwide, a transportation and logistics company, in wage and hour class action claims.
Other Employment Issues
- Three former executives of a $1 billion public international company in securing an $11.2 million arbitration award against the company. The executives claimed that they were entitled to additional payments associated with their departure.
- Douglas Elliman Realty in arbitrations involving commission disputes brought before the Real Estate Board of New York on behalf of sales agents affiliated with Douglas Elliman.
- Northwell Health in defense of breach of contract claims filed in Westchester County Supreme Court by 21st Century Oncology.
- Celebrity real estate broker Ryan Serhant in his successful defense against litigation brought in the SDNY concerned allegations of fraudulent conduct asserted by three NYC property purchasers. The SDNY dismissed all claims twice - alleged in the original and amended complaints. Judge Liman’s second order bars plaintiffs from refiling their claims. The decision provides important protection for New York real estate brokers against liability for certain types of statements made during the sales process.
- Yellow, one of the nation’s largest transportation and logistics companies, in numerous employment litigation matters.
- 111 W. 57th Street LLC and Douglas Elliman Realty in defense of breach of contract and tortious interference with contract claims brought by competitor Corcoran Sunshine.
- SVP Worldwide in defense of a disability claim relating to severe injuries incurred by a worker on the job. We advised SVP on various leave, workers compensation and return to work issues under federal and Oregon state law.
- CommonView Capital in defense of a litigation filed by a former employee of one of the company’s portfolio companies who alleges claims related to healthcare matters against CommonView, Commonview’s portfolio company and its board of directors.
- H.I.G. Capital, a private equity firm, in defense of a WARN Class Action brought by former employees of a bankrupt portfolio company.
- The 92nd Street Y in defending against various employment disputes, including labor grievances and arbitrations.
- Six health care aides, pro bono, in securing a $600,000 settlement from a home health care aide services agency to resolve their lawsuit alleging violations of state and federal labor laws.
- Representation of witnesses in a federal investigation into diversion of funds from an Asian sovereign wealth fund.
- Defense of a newspaper in a federal grand jury investigation into circulation reporting.
- Defense in SDNY of a real estate broker indicted for bank fraud.
- Defense in FINRA of the head of a 200-trader mortgage backed securities trading desk accused of mismarking trading books.