Contracts


Under the so-called “American Rule,” a party that prevails in litigation typically is not entitled to recover the costs, expenses and legal fees it has to expend to secure a judgment in its favor. As such, many business contracts include a “fee-shifting” provision, requiring a defendant to reimburse a prevailing plaintiff for the reasonable legal fees it incurs to obtain a judgment in its favor – and courts routinely enforce such provisions. Sometimes, a fee-shifting provision is part of a much broader indemnification agreement. While doing so is perfectly appropriate, care needs to be taken in expressing the fee-shifting obligation, or it may not be enforceable. Indeed, that is precisely the unfortunate position in which the plaintiff found itself in Harris v. Imaging Advantage, LLC.

Five years ago, the plaintiffs in Harris initiated their suit against Imaging Advantage in the Business Litigation Session of the Superior Court. In December of 2021, the plaintiffs were awarded summary judgment on two different contract claims, the first of which related to a License and Services Agreement. According to Section 15.1 of the LSA:

Each Party … agree[d] to defend, indemnify and hold harmless the other Party … from and against any

… Keep reading


Massachusetts General Laws Chapter 93A is one of the most potent weapons in any business litigator’s arsenal. That statute prohibits deceptive or unfair acts or practices in the course of trade or commerce, and it allows for the recovery of attorneys’ fees and even multiple damages (when the malevolent conduct is knowing or willful). While many cases have held that a mere breach of contract alone is not to invoke Chapter 93A liability, other cases have held that leveraging a business partner into a concession – even if there is no breach of a contractual obligation – is actionable under Chapter 93A.

In light of this, it should come as no surprise that for years transactional attorneys have been trying to insulate their clients from the reach of Chapter 93A by using limitation of liability clauses. Unfortunately, the law as to the enforceability of a limitation of liability clause in the Chapter 93A context has been murky. Essentially, precedent set by the Appeals Court held that such provisions could be enforced if the alleged deceptive or unfair conduct arose out of contractual conduct but could not be enforced where the conduct at issue was tort-based (as in the case … Keep reading


Like many mobile Apps, the one implemented by Uber Technologies includes a statement saying that users agree to abide by the company’s terms and conditions. One of those provisions is a mandate that all disputes with Uber be resolved through binding arbitration. Thus, imagine Uber’s surprise when the Massachusetts Supreme Judicial Court held in Kauders v. Uber Technologies, Inc. that one of Uber’s customers was not bound to arbitrate and could sue Uber in a court of law.

In 2014 Christopher Kauders signed up to use the Uber App in what appears to have been the same way most users do. After establishing his account, Kauders, who is blind, claimed that three Uber drivers refused to provide him with rides because his guide dog accompanied him. Based on this, Kauders sued Uber in Superior Court.

Uber filed a motion to compel Kauders to arbitrate his claim, and Kauders countered that the arbitration clause did not bind him because he had not received adequate notice of it, nor had he agreed to it. While the Superior Court initially sided with Uber and ordered that the dispute be arbitrated, that decision later was vacated, and the matter was appealed to … Keep reading


In some contracts, a party must meet its obligations by a certain date or forfeit its rights, and some of those contracts also include a “time is of the essence” clause. As most practitioners know, coupling a date for performance with a time is of the essence clause means that the deadline is inflexible. Having said that, there also are a number of cases where such hard deadlines were deemed to have modified by the conduct of the parties. See, e.g., McCarthy v. Tobin.  However, it is perilous to assume that your negotiations imply an extension when a time is of the essence clause is in play. Indeed, that is exactly what happened to the defendant in Reem Property, LLC v. Transfer Financial, LLC.

Reem Property was the high bidder in a foreclosure sale of real estate, and it entered into a Memorandum of Understanding with Transfer Financial to purchase that property. Pursuant to the MOS, Reem paid a $10,000 deposit. The time for closing was set for 12:00 p.m. on June 30, 2014, and time was of the essence. Before the closing, Reem’s counsel found that there was a problem with the newspaper advertisement … Keep reading


 

You have gone back and forth with an adversary via email several times and keep getting closer to a monetary settlement. Finally, the other side makes an offer that is over your bottom line, and you want to put the matter to rest. Should you accept? Maybe, but before you do, be sure that you have thought through all the non-monetary components of that offer. Failing to do so could end up binding you to an agreement that does not include provisions that are important to your client.

Lane v. Powell started as a wrongful death and personal injury action that became particularly nasty during the litigation. Certain lawyers, expert witnesses and other non-parties were accused of defamation and criminal witness tampering. Eventually, summary judgment limited the claims in the case, and the remaining parties engaged in serious settlement negotiations. After several emails between counsel closed the gap, the following exchange took place:

  • First, Defendants’ counsel wrote: “I’ve got $120,000 for all claims and nowhere else to go for more.”
  • Two days later, Plaintiffs’ counsel responded: “$120,000 is accepted. …The releases will include the 93A case, but no confidentiality.”
  • Twelve minutes later, Defendants’ counsel answered: “Excellent, that’s great.
… Keep reading


 

How many times over the years have you seen a clause in a contract stating that it only can be modified by a written instrument signed by the parties? Depending upon how long you have been practicing, the answer may well be hundreds, if not thousands. The problem with such a clause, however, is that it may not be as binding as it appears. Indeed, in a recent decision by Judge Saris in the Federal District Court, she ruled that a series of contracts prohibiting oral modifications or modification by conduct were, in fact, modified by words and acts.

In May of 2019, Sasha Hoffman began working for Thras.io Inc. pursuant to a written “Consulting Agreement” covering the period May 1 through July 31, and the parties subsequently entered into three additional Consulting Agreements that extended the term of her work through October. Each Consulting Agreement contained the following clause:

No provision of this Consulting Agreement may be modified, amended, waived or terminated except by a prior instrument in writing signed by the parties to this Consulting Agreement. No course of dealing between the parties will modify, amend, waive or terminate any provision of this Consulting Agreement

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Over the years, I have written a number of blog posts dealing with forum selection clauses, often in disputes where a party who wanted to enforce those provisions was not able to do so. While in-house counsel may view a forum selection clause as a boilerplate provision (and that is not necessarily inappropriate), it is critical that such a boilerplate provision be drafted properly. As the First Circuit’s recent decision in Bautista Cayman Asset Co. v. Fountainebleu Plaza, 2021 WL 2154778, confirms, failing to do so can lead to a forum selection clause being of little or no value.

In March of 2017, Bautista Cayman Asset Company brought a collection action against Fountainebleu Plaza, S.E. and others in the Federal District Court for the District of Puerto Rico. While Bautista eventually was awarded summary judgment on its claim, the defendants appealed, arguing that the Federal District Court had no subject matter jurisdiction, because the parties’ contract had a forum selection clause stating:

In the event of any litigation that arises in connection with this contract, with the Loan, or with the other documents connected hereto, the parties submit to the jurisdiction of the General Court of Justice

… Keep reading


As part of your company’s onboarding process, all employees sign an agreement making it crystal clear that if there ever is any dispute between them and the company, that dispute must be decided by an arbitrator in arbitration and not by a judge or jury in a court of law. Your agreement then adds a belt to those suspenders by itemizing a wide variety of specific claims that would be covered by the agreement and, thereby, subject to arbitration. Your agreement even specifically includes a statement to the effect that employees have a right to consult with an attorney of their own choice before signing the document. Surely, then, when an employee brings a suit in a court of law, you will be able to dismiss the claim and compel arbitration, right? Well, as GrubHub learned earlier this year, that may not be the case.

From September of 2016 through July of 2019, Veronica Archer worked for GrubHub as a driver delivering food and other products to consumers. At or about the time her employment with GrubHub began, Ms. Archer electronically signed an agreement that included provisions akin to those described above. In October of 2019, Ms. Archer joined … Keep reading


One of the prime reasons many companies require employees to arbitrate disputes is to ensure confidentiality. Indeed, absent an arbitration provision, an employee can file publicly available papers containing unfounded and scurrilous allegations that leave the employer with no recourse but to litigate or settle. Moreover, even if the employer eventually prevails, severe damage may be done by having its name dragged through the mud due to the publicity associated with the claims.

As the recent decision in Boursiquot v. United Healthcare Services of Delaware confirms, however, merely having a clause mandating that disputes be arbitrated is not be enough to ensure confidentiality. And there is no reason to leave this to chance.

In the Spring of 2016, Yvlande Boursiquot was a student beginning an unpaid internship with United Healthcare. As part of her onboarding with the company, Ms. Boursiquot was asked to sign an agreement entitled “Alternative Resolution for Conflicts Agreement,” and that Agreement included the following language:

Except as it otherwise provides, this Agreement is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Agreement requires all such disputes to

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When Jeremy Hernandez, a California resident, went to work for Oxford Global Resources, a Massachusetts company, in 2013, he signed a non-competition agreement. In 2016, Hernandez resigned from Oxford and, apparently unbeknownst to Oxford, began working for one of its competitors. Several months later, Oxford received an anonymous tip that Hernandez had taken Oxford’s confidential, client information and was using it to solicit customers for his new employer. Shortly thereafter, Oxford sued Hernandez in the Superior Court in Massachusetts based on a forum selection clause stating:

All suits, proceedings and other actions relating to, arising out of or in connection with this Agreement will be submitted to the in personam jurisdiction of … the courts of the Commonwealth of Massachusetts …. Venue for all such suits, proceedings and other actions will be in Massachusetts. Employee hereby waives any claims against or objections to such in personam jurisdiction and venue. [Emphasis added]

Notwithstanding the foregoing language, Hernandez moved to dismiss Oxford’s complaint on the grounds of forum non conveniens and the Superior Court allowed that motion. Oxford appealed, and the Supreme Judicial Court of Massachusetts took the case on its own initiative (by-passing the Appeals Court). Surprisingly, the SJC … Keep reading