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The In-House Advisor

Published by Shepard Davidson & Renee Inomata

The Value of a Non-compete Agreement to an Acquiring Company Can Be Limited

Posted in Contracts, Noncompetition & Other Restrictive Covenants, Pre-Litigation Considerations

It is standard practice in M&A transactions for the acquired business to assign all of its contractual rights to the purchaser. While that may sound good in theory, depending upon how the underlying contracts are drafted, they could have little or no value to the purchaser. Indeed, as the Massachusetts Superior Court’s decision in NetScout, Inc. v. Hohenstein confirms, this warning can be particularly important when the underlying contract involves an employee non-compete. Continue Reading

Confidential Communications With In-House Counsel Are Not Always Privileged

Posted in Attorney-Client Privilege

Next to a person’s Fifth Amendment right to remain silent, the attorney-client privilege is probably the most well recognized legal doctrine out there. Nevertheless, there are many nuances surrounding the privilege about which even seasoned lawyers are not very familiar. One of these deals with the fact that not all private communication between an attorney and client are privileged – even when the communications involve the most confidential and sensitive information. Continue Reading

3 Practical Challenges for Employers Created by Legalized Marijuana

Posted in Compliance, Policies & Notices, Disability, Medical Leave & Reasonable Accommodations, Discipline & Performance Management, Hiring, Supervisor Training

cannabis marijuana professional workWhen Massachusetts voters legalized the use of marijuana for medicinal purposes four years ago, the impact on most employers was limited to clarifying that “legal” marijuana use was still generally prohibited in the workplace. Now, Massachusetts has legalized limited use of recreational marijuana. Although the recreational marijuana use law also provides that employers may prohibit employees from reporting to work or performing work under the influence of marijuana, the new law is raising practical challenges for employers. Here are three ways that employers may consider changing what they have been doing:

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Be Sure to Observe Formalities to Protect Business Assets

Posted in Asset Protection

When entering into a new venture, it is not uncommon for a new legal entity to be formed in order to insulate an existing company from the liabilities associated with the new business. While the law absolutely permits this, a recent case in the Bankruptcy Court, In Re Cameron Construction & Roofing, is a good reminder that achieving true insulation requires more than simply filing another set of Articles of Incorporation. Continue Reading

Careful Drafting of Non-Competes and Other Restrictive Covenants Can Save the Day

Posted in Contracts, Noncompetition & Other Restrictive Covenants, Pre-Litigation Considerations, Separations, Layoffs & Terminations

It generally is a defense to a breach of contract claim if the defendant proves that the plaintiff was the first one to materially breach the parties’ agreement. As a recent case from the Business Litigation Session of the Massachusetts Superior Court confirms, however, a plaintiff seeking to enforce a post-employment restrictive covenant can avoid falling victim to such a defense – if, that is, the company has a carefully crafted agreement is in place. Continue Reading

Corporate Individual Creating a Privileged Communication May Not Control Waiving It

Posted in Attorney-Client Privilege, Confidentiality

While companies, like people, are entitled to protect privileged communications with their counsel, companies only can act through individuals. So what happens when the former CEO wants to disclose a privileged communication he had with his company’s corporate counsel? As SEC v. Present highlights, if the company does not want that communication disclosed, the former CEO may be barred from making such a disclosure.

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December 1 Overtime Final Rule on Hold

Posted in Compliance, Policies & Notices, Wage & Hour, Worker Classifications

On November 22, the U.S. District Court for the Eastern District of Texas granted the request of 21 states to temporarily halt the effective date the U.S. Department of Labor’s Final Rule (“Final Rule”) raising the salary threshold to qualify for the white collar exemptions from minimum wage and overtime requirements from taking effect. Accordingly, the Final Rule will not take effect on December 1, 2016.

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Specificity and Detail in Liability Waivers Are Critical

Posted in Contracts, Pre-Litigation Considerations, Settlements and Releases

Two years ago, in Concerns About Tort Claim Waivers I wrote about how important it was to be specific in your liability waivers to ensure you have as much protection as possible.  A recent decision by the Massachusetts Superior Court in Miller v. YMCA re-confirms that proposition. Continue Reading

Don’t Let Your Guard Down After Reaching an “Agreement in Principle”

Posted in Arbitration and Mediation, Contracts, Settlements and Releases

It’s human nature to engage in an emotional exhale after reaching an agreement in principle to settle a long-standing or hard-fought dispute. While doing so is all well and good, it is critical that you don’t let that deter you from exercising extreme focus on documenting that settlement in a carefully crafted agreement. Indeed, as the plaintiff in Zvi Construction v. Levy found out a few weeks ago, failing to do so can leave your client in a position where it is unable to obtain the fruits that it rightfully deserves. Continue Reading

Be Careful Not to Withhold Key Information When Courting a Potential New Hire or Business Partner

Posted in Contracts, Hiring

So your company is considering getting into a new area of business, and to do so, it will have to hire a variety of talent. While the launch of the new venture is not a certainty, the prospects of it are enticing, and time is of the essence. Thus, when talking to potential new hires, you want to focus on the positives and the possibilities. As a recent decision from the federal District Court, Bhammer v. Loomis Sayles and Company, Inc., makes clear, however, failing to disclose factors that may affect the viability of the new opportunity can be fraught with peril. Continue Reading