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Delivering Bad News as a Negotiation Strategy

Posted: April 6th, 2021

Delivering bad news may not top anyone’s favorite-things list, but did you know it can be used as a weapon in a negotiation? Whether you use it to gauge a reaction, make a counteroffer, or set the stage for other news that you may have, delivering bad news is an art. Keep reading as I talk about three ways to deliver bad news and how to wield these methods in a negotiation.

1. Using the Sandwich Technique

Step 1: Start with a genuine compliment or positive statement
Step 2: Be specific and state the meat of the matter using words
Step 3: Suggest a way to move forward or your proposed solution

The sandwich technique can be used to deliver various kinds of bad news. Here are a few:

The Bad News:	How You Can Use It:	Examples:
You have to tell an employee that they’re not performing well	Get the employee to perform better	“Your work at the company has been great; you are very detail-oriented and organized. However, your performance has been down recently. Let’s meet next week to discuss your next project. ”
You’re telling your boss your skills aren’t being utilized	Get that promotion you want	“I really love working here; I’ve learned so much. However, I feel like I could bring so much more to the table in a more senior role. Would I be able to schedule a performance review where we review my performance and explore growth within the company?”
You decline a sum that is offered in a negotiation	Get a better price	“I really love the features of the car; the sleek design is exactly what I’m looking for. Unfortunately, I really do not think I will be able to afford that. Is there any way we can negotiate a lower price?”
You’re increasing rent your tenants must pay	Soften the blow of increased rent to your tenants	“You are a wonderful tenant; you always pay on time! However, I do want to let you know that starting next month, I have to increase the monthly rent due to the pandemic. I will send you a new contract to look over.”
You’re unable to make a payment	Lower a price or buy time	“You know how I always pay on time and the full amount? Well, this month I need to ask for an extension, just for a few days. I will be able to pay the full amount in a week.”

By using the sandwich method, you can frame your bad news, constructive criticism or whatever you are trying to negotiate with a compliment that is positive, and then end with a solution. By proposing a way to move forward as the last step, you can create an actionable plan to keep the negotiation moving. This will force the person you are negotiating with to respond.

2. Use an Accusation Audit/Take the Sting Out

If you’ve ever started a sentence with “No offense but…” or “You’re going to kill me but…,” then you’re familiar with the “accusation audit” technique.

You may want to try this technique if you’re dealing with someone who has an already established negative assumption of you. For instance, if you’re trying to sell medical equipment to a doctor who is already suspicious of you and your products, you might want to state their assumption out loud and then follow it up with something more reassuring. This way, you can wield the bad news to your advantage to soften the person you’re negotiating with. Here’s an example: “You probably think I’m trying to scam you. (Pause) However, I want you know that people see real results with our products.”

You can also use an accusation audit to set and then exceed expectations by making someone think the bad news is worse that it is – so when you deliver it, it stings less and the person you’re negotiating with will think or say something along the lines of: “Oh, that’s not so bad! I thought you were going to say the whole deal is off!” An example of this type of accusation audit might go: “Alright, so you’re going to think that the company views this project as a waste of time after I tell you this. (Pause) I’m really upset about this too, but I have to cut the budget by 25% for the project you’re currently working on. “

3. Make Observations to Prompt a Response

Say you make a calculation error in a report. Wouldn’t it feel better to receive a reply that says, “Somehow I got different numbers, let’s both recheck to see what we get again” rather than “Your calculation is wrong”? The non-accusatory approach – by making open ended observations – can work the same way. This tactic avoids putting the blame on the person you’re giving bad news to. The person you are negotiating with will also feel prompted to respond by offering their own perspective on the issue – and it’s also a great way to avoid incriminating yourself when delivering the news.

By using phrases like “It seems like” and “It looks like,” the bad news you are delivering can be softened to your advantage. For example, you can say “It seems like the team is struggling to meet deadlines recently…” rather than “You missed several deadlines recently” or “It looks like you missed the March payment for rent…” rather than “You missed the March payment, where is it?”

Now that you’re an expert on delivering bad news, I urge you to try one of these strategies the next time you’re in an uncomfortable position. Knowing how to communicate bad news is an important skill to have in your arsenal, so instead of viewing it as something to dread, try to view it as the weapon it is. Now, grab your delivering bad news tactics, use them the next time you’re in that situation, and take control of your negotiation.

[1] Read more about delivering bad news in former FBI top hostage negotiator Chris Voss’s book, Never Split the Difference: Negotiating As If Your Life Depended on It (HarperCollins 2016).

Can a City or Town be Held Responsible for the Actions of its Snowplow Drivers?

Posted: April 2nd, 2021

By: Scott Middleton, Esq. email

Tags: municipal, negligence

Spring is finally here, and now that the last of the snow from the recent snowstorms has melted after being piled high, we can finally see the grass again. Although snowplows may be in hibernation until next year, you may wonder: did any municipalities face liability for snowplow accidents during this past messy winter? While rare, snowplow accidents happen. But can a municipality be held responsible for the actions of its driver/employee? The answer is generally, not very often.

In most instances a snowplow operator “actually engaged in work on the highway” is exempt from the rules of the road and may only be held liable for damages caused by an act done and reckless disregard for the safety of others.[1] The claimant/plaintiff must establish that the “operator acted in conscious disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow.” This type of municipal law makes it difficult to prove an accident was the operator’s fault.

In this case, an employee of the Village of Great Neck Estates was operating a Village-owned snowplow. While in reverse, the snowplow was involved in an accident with a pedestrian walking in the street. The plaintiff later sued the employee and the Village for personal injuries. The court held that the employee did not act with “reckless disregard for the safety of others” since the employee testified that he had the beeping alert of the snowplow activated, was traveling at a low speed, and had the snowplow lights on. Additionally, the employee testified that he was looking in the snowplow’s mirrors while traveling backward but did not see the pedestrian behind the snowplow. In this instance, the plaintiff was unable to prove that the operator acted in “conscious disregard of a known or obvious risk.”

Contrast those facts with the long resolved Neddo case from 1949, where an automobile collided with a snow scraper on a highway in New York.[2] In this case, the state was ultimately found liable for failing to have proper lighting on a snow scraper. Likewise, in the 1982 Cherico case, New York City was held liable after a car accident when a snowplow-equipped truck caused an accumulation of ice and snow to fly over a guard rail and smash a driver’s windshield.[3] In that case, an engineer testified that that the snowplow operator did not follow the proper method of snow removal, which would have been to push the snow off the roadway onto the right shoulder instead of into the center.

If a municipality is served with a Notice of Claim for a vehicular accident involving a snowplow, it should be treated like any other claim and forwarded to the insurance carrier or third-party adjuster. Realize, however, that only in rare circumstances will a municipality be held responsible for the actions of its snowplow operators.

At CMM, we know that navigating municipal law on your own can be a challenge. If we can be of any assistance or you need a municipal law attorney on your side, please feel free to contact us at (631) 738-9100.

[1] Kaffash v. Village of Great Neck Estates, 190 A.D.3d 709 (2d Dep’t 2021).

[2] Neddo v. State of New York, 300 N.Y. 533 (1949).

[3] Cherico v. City of New York, 88 A.D.2d 889 (1^st Dep’t 1982).

CMM Closes International M&A Deal for Dutch Company Specializing in Smoking Products

Posted: April 1st, 2021

In a display of CMM’s expansive reach, the firm’s M&A team has completed another cross-border deal.

The deal involved a Dutch company that sold its equity interest in a California LLC that specializes in the manufacture and sale of rolled cones and tubes for the smoking industry. In addition to the sale to their business partners, the client also sold intellectual property rights to several patents and trademarks for certain smoking products that are distributed by the California entity.

The transaction was three years in the making, with numerous starts, stalls, stops, and restarts, but CMM’s team – led by Donald Rassiger with the critical support of corporate paralegal Katharine Campolo – was able to push the complicated deal over the finish line.

“Thank you for the great effort you all had and all the good work you did for the brand and the deal that took place. This is no goodbye!” the client shared following the closing.

CMM continues to push forward and embrace challenging times through hard work and positivity. The deal demonstrates the comprehensive diligence that clients expect from CMM. Learn more about our Mergers & Acquisitions practice and call us at (631) 738-9100 for guidance on your next transaction.

NYS Grants PTO for COVID Vaccinations

Posted: March 30th, 2021

Campolo Interviews Founder of Royalty Pharma at Entrepreneurs Edge 2021

Posted: March 30th, 2021

Event Date: April 8th, 2021

Please join us for Stony Brook University‘s annual Entrepreneurs Edge as CMM Managing Partner Joe Campolo interviews Pablo Legorreta, Founder and Chief Executive Officer of Royalty Pharma, the largest buyer of biopharmaceutical royalties and a leading funder of innovation across the biopharmaceutical industry. Campolo is an experienced interviewer known for his challenging questions that get to the heart of the entrepreneur’s personal journey. The event provides a unique behind-the-scenes look at what it’s like to build a successful business.

Don’t miss this Q&A with two Long Island business leaders as they discuss Pablo Legorreta’s inspiration for starting Royalty Pharma, the top factors of success for his company, and more on his industry leadership and great involvement in philanthropy.

DATE: THURSDAY, APRIL 8, 2021

TIME: 6:00 PM

WHERE: VIRTUAL ON ZOOM

REGISTER HERE

Campolo Named to Top 25 Most Powerful People in Law on Long Island

Posted: March 29th, 2021

Campolo, Middleton & McCormick, LLP congratulates Managing Partner Joe Campolo on being recognized as one of the 25 Most Powerful People in Long Island Law. The LIBN Power 25 Lawyer List honors dedicated, accomplished attorneys who have persevered through challenges and positively shaped Long Island by making inspiring impacts on the lives of their clients and our region.

“We found these Power 25 attorneys have a true passion for their profession, but they do more than practice law. They have compassion for their clients. They have a comprehensive knowledge of their practice areas. They identify and accomplish important goals. In fact, they have helped shape the way we live and do business. No matter how busy they are, they continue to impress LIBN with their commitment to take the time to hear the needs of people, businesses, and Long Island,” says Joe Dowd, LIBN Editor & Associate Publisher.

As Managing Partner of CMM, Joe Campolo has advised business owners, executives, and board members on legal and business strategies. Highlights of his work include negotiating complex issues to a successful resolution with the SEC, achieving settlements for international corporates and not-for-profits under investigation by state agencies, guiding business owners through business breakups, and successfully negotiating multimillion-dollar projects for real estate developers.

Campolo is recognized for his business leadership and philanthropic efforts on Long Island, most notably his involvement as Chairman of HIA-LI’s Long Island Innovation Park at Hauppauge (LI-IPH) Task Force, where he attracts critical attention and investment to the park. As immediate past chairman of HIA-LI Board of Directors, Joe Campolo fights tirelessly for the economic stimulation and growth on Long Island.

VIEW THE POWER 25 LIST

Glass Joins Staller Center for Free Webinar: Gift Planning

Posted: March 23rd, 2021

Event Date: April 14th, 2021

Campolo, Middleton & McCormick, LLP, a Forbes Top Corporate Law Firm in America, in partnership with the Staller Center for the Arts, presents a complimentary webinar titled Gift Planning on April 14 at 3:00 p.m. The webinar will feature Martin S. Glass, Esq., who will lead attendees through a comprehensive overview of planned giving and creating a vision to benefit you, your loved ones, and your charity.

Speakers:

Vincent Clark: Intermin Director of Planned Giving at Stony Brook University

Ashley Fetter: Assistant Director of Gift Planning at Stony Brook University

Martin S. Glass, Esq.: Elder Law Attorney at Campolo, Middleton & McCormick, LLP

Date: April 14, 2021

Time: 3:00 p.m.

The webinar is free but registration is required.

To Post or Not to Post? Social Media and the Workplace

Posted: March 22nd, 2021

By: Vincent Costa, Esq. email

Tags: labor & employment

Many people believe that the First Amendment grants them the right of unrestricted free speech, including on social media. But employees are often surprised to learn that the First Amendment protects specifically from government intrusion on free speech – it does not apply to intrusion on free speech by private employers. So, can an employer place limits on what an employee posts on their personal social media accounts? Read on to learn about the sometimes-complicated relationship between social media and the workplace.

Social Media Posts and Policies

New York is an at-will employment state, which means that an employee can be fired at any time without warning or reason.[1] Some states, however – including New York – protect employees (both public and private) from being fired due to their political or recreational activities outside of work (including social media posts). But the law has exceptions, including that it does not protect employees’ off-duty conduct that creates a material conflict of interest related to the employer’s business interest.[2]

To protect a company’s business interest, the company may create a social media policy regarding what employees cannot do on social media. Such a policy would allow an employer to fire an employee if they breach the policy, as long as the policy provisions do not violate the National Labor Relations Act (“NLRA”). Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”[3] Federal law also protects an employee’s right to engage in not only union activity, but “protected concerted” activity as well.

The National Labor Relations Board (“NLRB”) states that using social media can be a form of “protected concerted” activity. An employee has the right to address work-related issues and share information about pay, benefits, and working conditions with coworkers on Facebook, Twitter, and other social media platforms. However, some aspects of work are not “protected concerted” activity. Such activity is not protected if an employee says things about their employer that are egregiously offensive or knowingly and deliberately false, or if an employee publicly disparages their employer’s products or services without relating such complaints to any labor controversy.[4]

Recent NLRB Decisions

In a 2017 case, the NLRB created a two-step process called the “Boeing Test” (named for Boeing as a party to the case) for evaluating whether facially lawful workplace policies (such as a social media policy) unlawfully interfere with employees’ rights.[5] Step one is to determine whether the workplace policy reasonably interferes with the employees’ rights under Section 7 of the NLRA. If the policy does interfere, then the next step is to determine the employer’s justifications for the policy and balance those justifications against the interference with the employees’ rights.

The NLRB used the “Boeing Test” in a 2020 case, Bemis Company. In this case, the NLRB upheld a company’s social media policy.[6] Specifically, the NLRB found that the policy, when read in its entirety, “makes clear that to safeguard the reputation and interests of the company, employees referring to the company on social media must be respectful and professional, must not disclose proprietary information, must respect their coworkers, and must not harass, disrupt, or interfere with another person’s work or create an intimidating, offensive, or hostile work environment.”[7]

Specific Issues for Public Employees

Unlike private employees, public employees do have a limited First Amendment free speech protection. Yet this only applies when all three of the following criteria are met:

They are speaking as a private citizen;
Their speech pertains to a matter of public concern, such as a social, political, or community matter; and
Their interest in speaking freely outweighs the public employer’s interest in efficiently fulfilling its public services.

If all these criteria are not met, a public employee can be legally fired for their social media posts. For example, a police officer, who is employed by the government, can be fired for making controversial posts related to racial and social issues because the police officer’s interest in speaking freely does not outweigh the department’s interest in efficiently fulfilling its public service.

Whether you are an employee facing pushback from your employer regarding social media or an employer considering a social media policy, please contact us for guidance.

[1] An employer in New York, whether public or private, cannot fire an employee due to an act of illegal retaliation or discrimination based on race, creed, national origin, age, disability, gender, sexual orientation, marital status, political or recreational activities outside of work, legal use of consumable products outside of work, membership in a union, or making a complaint to the employer. See NYS Human Rights Law; NYS Labor Law Section 201-d; NYS Labor Law Section 215.

[2] NYS Labor Law Section 201-D.

[3] Codified as 29 U.S.C. § 157; Interfering with Employee Rights, NLRB, https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/interfering-with-employee-rights-section-7-8a1 (last visited Mar. 18, 2021).

[4] Social Media, NLRB, https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/social-media-0 (last visited Mar. 18, 2021).

[5] Boeing Co., 365 NLRB No. 154 (2017)

[6] Bemis Co., 370 NLRB No. 7 (Aug. 7, 2020)

[7] Id.

HIA-LI Gold Membership Flourishes Under Campolo’s Leadership

Posted: March 16th, 2021

CMM’s Joe Campolo has joined forces with John Miller, CEO of the Guide Dog Foundation and America’s VetDogs, to moderate the monthly meetings of the HIA-LI Gold Membership. The Gold program is open to CEOs and Presidents of HIA-LI member companies that currently have 10 or more employees. Members enjoy camaraderie, support from fellow business leaders, access to high-profile speakers and elected officials, as well as a forum to network and collaborate. Below, read Campolo’s article from the March 2021 HIA-LI Reporter about the benefits of Gold Membership. To learn more, call the HIA-LI at (631) 543-5355.

A Golden Opportunity

By Joe Campolo

In 2019, midway through my term as Chairman of the HIA-LI Board of Directors, I began to focus on getting the HIA-LI Gold Membership Program off the ground. Working closely with my friend and HIA-LI President Terri Alessi-Miceli, we envisioned the Gold Membership as not just another networking group, but an exclusive CEO forum: a comfortable environment for decisionmakers to discuss issues only fellow CEOs can understand, without being pressured for business. This forum would bring together business leaders with high-level speakers at impeccable events, offer direct interaction with elected officials and other influencers on policy issues, and foster collaboration among elite executives and business owners.

In January 2020, we held a fantastic kickoff event at Jewel in Melville. Over delicious sushi and hors d’oeuvres, CEOs of some of Long Island’s most influential companies mingled and looked forward to a full calendar of sophisticated speakers, delectable food, and immense opportunity.

Then 2020 laughed at us.

But since then, HIA-LI Gold Membership has transformed from an event-driven program into a critical resource for Long Island leaders continuing to navigate the fallout from the COVID-19 pandemic. Recognizing the truth behind the adage “It’s lonely at the top,” we have been meeting monthly on Zoom to discuss solutions to the very real challenges these businesses owners and leaders are facing. These range from economic concerns (“How can I better manage my cash flow?”) to employment issues (“How do I manage the return to the office for remote workers?”) and everything in between. The support we’ve given and received from the group has made all the difference when facing difficult decisions that would otherwise be paralyzing.

We have also continued to bring the high-level speakers we had always envisioned as part of Gold Membership. In January 2021, Lieutenant Governor Kathy Hochul joined us to discuss the New York State vaccine rollout, and following her remarks, members stayed on the call to discuss their current issues and share advice. As of press time, we are gearing up for our next meeting featuring HIA-LI board member John Bauer of Littler discussing employment concerns, as well as Roy George, Assistant Vice President of Clinical Initiatives at Northwell Health, who will address post-COVID healthcare issues. Upcoming meeting topics include a focus on the restaurant/hospitality industry, a deep dive into healthcare, and future investment in Long Island.

Gold Membership is offered to CEOs and Presidents of HIA-LI member companies that currently have 10 or more employees. While the look of membership has evolved from our initial vision (although we’re hopeful we can resume in-person meetings sooner rather than later), the goal remains the same. Gold members have the opportunity to brainstorm and innovate with fellow leaders in a comfortable environment where the focus is on collaboration and learning, not trying to get business. We hope you’ll join us.