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The In-House Advisor

Published by Shepard Davidson & Renee Inomata

Mandatory Paid Sick Leave — What In-House Counsel and Employers Need to Know

Posted in Compliance, Policies & Notices, Employee Benefits

stethoscopeAs indicated in a recent blog post in the Harvard Business Review, entitled “Who Has Paid Sick Leave, Who Doesn’t, and What’s Changing,” paid sick leave traditionally was a benefit that only some employers provided, and in some cases only to certain employees. In recent years, however, increasing numbers of cities and states have begun mandating that employers provide this traditionally voluntary benefit. In fact, if President Obama makes good on his promise from his State of the Union address, there will be a national standard for mandatory paid sick leave. With the fast-changing landscape of rules and regulations related to paid sick leave, in-house counsel and employers need to keep alert. In Massachusetts, for instance, voters approved a ballot measure which goes into effect on July 15, 2015.
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Don’t Overlook The Need to Show Irreparable Harm When Seeking Injunctive Relief to Enforce a Non-Compete

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

When seeking preliminary injunctive relief to enforce a non-compete, the moving party is often focused on how obvious it is that the defendant breached the parties’ agreement. As 7-Eleven recently learned, however, even when there is a valid and enforceable noncompetition provision and a clear breach of it, unless you can show that you will suffer irreparable harm without an injunction, and that such harm outweighs the irreparable harm to the defendant that an injunction would inflict, a court will not issue injunctive relief. Continue Reading

Two Ways to Use Your Letter of Intent to Lock up a Deal – Maybe, For Good!

Posted in Contracts, Letters of Intent

Letters of intent (LOI) are routinely used after business people have reached some degree of common ground on a potential deal. Sometimes an LOI comes very early on, before the parties know whether an ultimate agreement is likely or not. In other situations, however, LOI’s are entered into only after there is agreement on all the key business terms. Even in those cases, however, deals often crater during the process of negotiating a full-blown contract. This can be the result of one side simply getting cold feet and/or otherwise changing its mind about moving forward. Further, all too often the party left at the altar can do nothing but lament the fact that it expended a lot of time and money with nothing to show for it. Here are two strategies in-house counsel might consider employing in the LOI process to limit the risk that they have to go back to their internal client and explain that even though there was a letter of intent, the other side walked away from the deal and there is nothing that can be done about it.

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Filing a Knee-Jerk Counterclaim Can Make a Bad Problem Worse

Posted in Pre-Litigation Considerations

In today’s litigious world, it is all too common for a disgruntled former business partner to file a lawsuit based on legally weak, if not outright frivolous, claims of wrongdoing. One common reaction is to fight fire with fire by filing counterclaims for abuse of process and/or other similar causes of action. While there is a time and place for pursuing such counterclaims, they should be carefully vetted and not instituted based on emotion and/or simply to create leverage. Indeed, as the defendant in Barnum v. Tubifi, Inc. learned just last month, filing a retaliatory counterclaim can result not just in a little wasted time and money, but could lead to court imposed sanctions.

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Can Giving an Employee Praise Get You Into Trouble?

Posted in Separations, Layoffs & Terminations

Many companies try not only to be profitable, but also to be good employers.  Some employers still fear, however, that praising employees too much for good work may create some workplace liability. Fortunately, the U.S. District Court for the District of Massachusetts clarified just before the Thanksgiving holiday in Cagnina v. Philadelphia Insurance Companies, that it is, in fact, okay for employers to give thanks (and even unabashed praise) to their employees.

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If You Are a Third-Party Beneficiary, Make Sure the Contract Is Crystal Clear!

Posted in Contracts

In Be Clear if You Want to Have a “Third-Party Beneficiary” in Your Contract, I discussed that if in-house counsel wanted to ensure that a person or entity achieved the status of a third-party beneficiary, it was critical to have language in the agreement that plainly said this. A 2013 decision from the District of Massachusetts, Pollak v. Federal Insurance Co., highlights the importance of this from the perspective of the third-party beneficiary.

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Concerns Regarding Tort Claim Waivers

Posted in Contracts, Settlements and Releases

When Richard Angelo died during a triathlon sponsored by USA Triathlon, USAT thought that the waiver/indemnity Richard had executed would protect the organization.  Unfortunately for USAT, that liability limitation turned out not to be nearly as ironclad as USAT had hoped.  Now, USAT faces the prospect of defending a case that could subject it to hundreds of thousands of dollars – or more – in damages.

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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