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The In-House Advisor

Published by Shepard Davidson & Renee Inomata

Take Care When Drafting Limitations of Liability to Exclude Lost Profits Damages

Posted in Contracts

Two weeks ago, I posted Carefully Craft Your Arbitration Clause if You Want Some, But not All, Disputes Arbitrated. The recent case of Biotronik A.G. v. Conor Medsystems Ireland, Ltd., is a reminder to in-house counsel that specificity also can be critical if you want to limit the company’s liability in the event of a breach. Continue Reading

Carefully Craft Your Arbitration Clause if You Want Some, But Not All, Disputes Arbitrated

Posted in Arbitration and Mediation, Contracts

As I discussed in Is Arbitration Quicker, Cheaper and Better for You?, sometimes it is in a party’s interest to have a dispute resolution mechanism that is long, onerous and expensive.  Further, as the recent case Grand Wireless v. Verizon Wireless confirms, if you want some disputes resolved by arbitration and others resolved by a court, it is critical that your arbitration clause spell this out in detail.

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NFL Could Learn From New MA Domestic Violence Law

Posted in Compliance, Policies & Notices

Baltimore Ravens running back Ray Rice, Carolina Panthers Pro Bowl defensive end Greg Hardy, and San Francisco 49ers defensive end Ray MacDonald all have something in common (and it’s not just that they are incredibly talented professional football players):  They have all been indicted for engaging in conduct that constitutes domestic violence.  In Hardy’s case, he has been convicted for domestic abuse.  And just a few days ago, Minnesota Vikings running back Adrian Peterson was indicted for abusing his son and is now under investigation for abusing another son.

The National Football League’s travails with perpetrators of domestic violence have been numerous and storied, and after years of dealing with player domestic abuse instances, the NFL finally instituted a Domestic Violence Policy.  While the NFL’s policy is directed towards perpetrators of domestic violence, Massachusetts employers now are required to protect employee victims of domestic violence. Continue Reading

Tips To Ensure Recovery of “Prevailing Party” Legal Fees

Posted in Contracts, Pre-Litigation Considerations

While it may not be standard practice when drafting contracts to include a clause stating that “if litigation between the parties ensues the prevailing party will recover its legal fees,” such provisions do appear in a variety of contracts from time to time. A recent First Circuit opinion, Thompson v. Cloud, involves such a clause and also serves as a good reminder that it can be dangerous to take lightly even seemingly simple provisions in an agreement.

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10 Most Overlooked Executive Separation Agreement Clauses – Part 2

Posted in Confidentiality and Non-Disparagement, Separations, Layoffs & Terminations

In Part 1 I shared with you five commonly overlooked terms in executive separation agreements. Here are five more.

6. Release Timing. If the executive is excused from performing work or coming to the office well before her last day of employment, the company may want to have the executive sign an agreement close to the day the executive is notified about her separation because the company will remain exposed to liability for the period of time between the executive’s signing the separation agreement and her actual last day. In addition, I recommend having the executive sign a second release on her actual last day of employment – and make signing that second release contingent upon receiving any post-termination severance benefits.

7. Post-Termination Restrictive Covenants and the Integration Clause. Many agreements contain a boilerplate integration provision, reciting that the agreement is the entire agreement between the parties and that the executive is not relying on anything not contained in the written document. If the executive has signed a prior agreement containing restrictive covenants which are intended to survive termination of the executive’s employment, such a general integration clause could void the prior post-termination restrictive covenants. An alternative would be to include a provision in the separation agreement that ratifies the executive’s obligations in the prior agreement and incorporates that agreement into the separation agreement. Also, if there are specific lists of customers or types of information in the prior restrictive covenant agreement, be sure to take the opportunity in the separation agreement to update such lists to better reflect the customers and types of information the executive has access to closer to the time of termination, rather than relying on the initial list at the commencement of his employment, which is when many executives tend to sign restrictive covenant agreements.

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10 Most Overlooked Executive Separation Agreement Clauses – Part 1

Posted in Separations, Layoffs & Terminations

Executives in this market are moving in and out of companies with greater frequency.  With the myriad legal claims that an executive could assert against an employer, whether meritorious or not, more companies are opting to give executives some compensation or other benefits on the way out the door in exchange for a release and other post-employment obligations to ensure that the executive will be a “good leaver.”  While the concept of a separation agreement is pretty straightforward, multiple devils can lurk in the details.  Here are the first five of my top 10 often overlooked terms in executive separation agreements. Continue Reading

In-House Advisor’s Renee Inomata Included in The Best Lawyers in America

Posted in Uncategorized

Please join me in congratulating my In-House Advisor co-publisher, Renee Inomata, for being selected for inclusion in The Best Lawyers in America® 2015 in the Employment Law – Management category. Best Lawyers® is based on an exhaustive peer-review survey in which more than 52,000 leading attorneys throughout the country voted on the legal abilities of other lawyers in their practice areas. Congratulations, Renee, on this well-deserved honor!

-Shep

Please Nominate The In-House Advisor for ABA Journal Blawg 100

Posted in Uncategorized

Please indulge us today as we ask for a very quick  favor. The American Bar Association Journal is accepting nominations for the 2014 ABA Journal Blawg 100, an annual list of the 100 best legal blogs. If you’ve found The In-House Advisor helpful and enjoyable to read, we would be grateful for your nomination, which you can submit here. The nomination form, which asks for your contact information and a quick sentence or two about why you’re fan of the blog, will take just a couple minutes to fill out.

Nominations are due by 5 p.m. ET on Aug. 8, 2014. Thank you so much for the support!

Shep & Renee

The Attorney-Client Privilege and Individuals Who Are the “Functional Equivalent” of Employees

Posted in Attorney-Client Privilege

Communications between attorneys and clients that are not private, and/or communications between attorneys and third parties, cannot be protected from disclosure by the attorney-client privilege.  When the client is an individual, it generally is easy to discern if a communication is private, and it usually is obvious if an attorney is communicating with a third party.  When the client is a corporation or some other entity, however, it can be much less clear as to whether a particular person will be deemed to be the client or a third party.  One scenario where this issue routinely arises is when company counsel communicates with an individual who is an independent contractor or some other person working closely with the company, but who is not an employee. Continue Reading

Beware: Individual Liability for Equityholders Under MA Wage Act

Posted in Wage & Hour

Under the Massachusetts Weekly Payment of Wages Act (“Wage Act”), the President, Treasurer and “any officers or agents having the management of such corporation” are considered to be employers and are subject to individual liability for failing to comply with its requirement. In a previous blog post, Managers of LLCs Can Be Personally Liable Under the Massachusetts Wage Act, I had written about Cook v. Patient Edu, LLC, where the Massachusetts Supreme Judicial Court clarified that managers of limited liability companies (not just the officers of a corporation) could be held individually liable under the Wage Act.  In Cook, the SJC concluded that it did not matter whether the entity was a limited liability company or corporation, and determined that “individuals with the authority to shape the employment and financial policies of an entity [were] liable for the obligations of that entity to its employees.”

In a recent unpublished decision, Segal v. Genitrix, LLC, the Massachusetts Appeals Court, relying on Cook, appears to have expanded the scope of individual liability under the Wage Act to certain equity holders of limited liability companies.

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