In a stunning turn of events, the Massachusetts Supreme Judicial Court has reversed its April 1 ruling in Ayeprel v. Phules, on which I reported yesterday. In an extremely short opinion, the Court simply said, “We reverse our ruling that adopted the so-called ‘work spouse privilege’ and hope that everyone had a happy Ayeprel Phules Day.”
In a closely watched case, Ayeprel v. Phules, the Supreme Judicial Court of Massachusetts formally recognized that confidential communications between so-called “work spouses” may be privileged. The 5-4 decision makes Massachusetts the first state in the country to adopt such a privilege.
The genesis of this ruling dates back to 2008, when Marcus Ayeprel was accused through an anonymous posting on his company’s intranet site of having embezzled funds from the company’s March Madness office pool. Believing that his colleague, Judith Phules, was behind the allegations of embezzlement, Ayeprel sued Phules for defamation and intentional infliction of emotional distress. Because Ayeprel knew that Phules had a particularly close relationship with another co-worker, Sidney Finch, Ayeprel sought to depose Finch to uncover whether Phules had admitted to him her involvement in the intranet posting. While Finch admitted generally that he and Phules had discussed what appeared to be discrepancies in the March Madness pool proceeds, Finch refused to divulge the substance of his conversations with Phules. When pressed to justify his objection, Finch’s counsel said that the conversations were privileged because Finch and Phules were “work spouses who intended such communications to remain in confidence.”
Ayeprel moved … Keep reading
In a recent post, I discussed how a company could be liable for referencing a third-party’s unbiased endorsement if, unbeknownst to that company, the basis for the endorsement turned out to be unjustified. In another advertising-related development last week, the Federal Trade Commission (FTC) issued new guidelines: How to Make Effective Disclosures in Digital Advertising.
One key point the FTC makes in the new guidelines is that when a disclosure is necessary to ensure that an ad is not misleading or unfair, the disclosure must be clear and conspicuous. Recognizing that this can be particularly challenging when ads are viewed on mobile devices such as smart phones and tablets and/or in the context of other emerging technologies, the FTC explains in detail how the following five circumstances affect the clarity and conspicuousness of disclosures when advertisements are viewed on non-traditional media:
Although the entire publication is less than 25 pages of text (including a number of useful examples), you can review a nice summary of the new guidelines in a post in the Covington and Burling blog, Inside Privacy.
In-house counsel should be … Keep reading
When an employee talks to in-house or outside counsel for the purpose of obtaining legal advice for the company, that communication will be privileged and can be protected from disclosure. Likewise, when in-house counsel is meeting with several employees at the same time for the purpose of gathering information to be used for legal advice, the communication that takes place will be privileged.
Notwithstanding the fact that the attorney-client privilege applies to communications between a lawyer and a client, many people still believe that communications amongst employees are protectable even if no attorney is present, as long as they are discussing an ongoing or potential litigation. That is a misguided notion, and looking at the facts of a 4th Circuit case, US v. Tedder, reveals how dangerous having such a misconception can be.… Keep reading
It should come as no surprise that making a false statement about a competitor’s product or service is actionable. Similarly, albeit slightly less obvious, repeating a false statement that someone else makes about a competitor also may be actionable if you have reason to believe that the statement is false or if you recklessly repeat it without making any effort to determine if that statement is true or false. In Genzyme Corp. v. Shire Human Genetic Therapies, Inc., however, the District of Massachusetts took the concept of holding someone liable for republishing another’s unbiased statement to a whole new level. … Keep reading
In the January 24-31, 2013 “Business View” section of the Boston Business Journal, State Senator William Brownsberger and State Representative Lori Erlich claimed that one reason Massachusetts is losing jobs to Silicon Valley is that California law prohibits non-compete agreements, whereas in Massachusetts they are routinely enforced. The authors then use this conclusion to argue that the Commonwealth should legislate the elimination, or at least curtail the enforceability, of non-compete agreements.
While I have no reason to doubt that Senator Brownsberger and Representative Erlich genuinely believe that eliminating or curtailing the enforceability of non-competes would be beneficial to the Commonwealth, their argument is deeply flawed. As an initial matter, the legislators’ starting point is the “dozens of stories [they have been told] of young workers whose careers were delayed or substantially derailed by overreaching noncompetition agreements.” Even assuming all of these stories are true, if the issue is the impact non-competes are having on the Massachusetts economy, the real starting point should be the number of people who actually left the Commonwealth simply to avoid signing a non-compete agreement. Further, while Senator Brownsberger and Representative Erlich provide no empirical or even anecdotal data with which to make such … Keep reading
By popular demand, here again are what I consider to be the top 5 myths related to the attorney-client privilege. I recently spoke at a presentation to the Northeast Chapter of the Association of Corporate Counsel about the ways these myths (and the concomitant realities) can impact how in-house counsel interact with their business clients.
In Enforcing Non-Compete Agreements Against California Employees — Part I, I discussed how a Massachusetts company might be able to enforce a non-compete against a California employee by including a Massachusetts choice of law provision in an employment agreement. In this post, I will discuss three scenarios under which an employer may be able to obtain an actual (or the functional equivalent) of a non-compete with respect to California residents/employees even if California law applies.
Section 16601 of the California Business and Professional Code states:
… Keep readingAny person who sells the goodwill of a business, or any owner of a business entity selling or otherwise disposing of all of his or her ownership interest in the business entity, or any owner of a business entity that sells (a) all or substantially all of its operating assets together with the goodwill of the business entity, (b) all or substantially all of the operating assets of a division or a subsidiary of the business entity together with the goodwill of that division or subsidiary, or (c) all of the ownership interest of any subsidiary, may agree with the buyer to
I recently had the pleasure of giving a presentation to the Northeast Chapter of the Association of Corporate Counsel on issues affecting in-house counsel in connection with the attorney-client privilege. Click here to listen to a webcast of that presentation. (You will be prompted to sign in with your ACC log-in, but if you don’t have one, you can still access the webcast after clicking on “next step” on the check out page.)
In connection with that presentation, I developed the following list of Myths vs. Reality:
In a post this summer, I raised three issues employers may want to consider before even requesting that an employee execute a covenant not to compete. One issue that I did not mention is whether the company’s employee lives and works in California. Although where an employee lives may be relevant, contrary to what many attorneys think, it may be possible for a Massachusetts company to enforce a non-compete against a California resident.… Keep reading
