April 2013


Memorializing an agreement in a written contract serves two primary purposes.  First and foremost, a written contract should clearly set out the deal terms so that there is little or no chance of a misunderstanding as to what the parties’ rights and obligations are.  Further, to be sure that they get the deal terms right, in-house counsel often turn to business people involved in the deal because they are the experts on the deal terms. 

The second reason to have a written contract is to set out the “Rules of Engagement” that will apply if a dispute arises between the parties.  Such Rules, on which I have written in other posts, include choice of law provisions, forum selection clauses, liquidated damages provisions, and arbitration clauses, just to name a few.  Surprisingly, however, and in contrast to in-house counsels’ willingness to consult with business people about the deal terms in a contract, in-house counsel often are reluctant to consult with experts on the Rules of Engagement, i.e., experienced litigators.  Whether the reason for this is a psychological aversion to placing too much emphasis on what might go wrong with a deal before it is fully in … Keep reading

TAGS: , , , ,


A favorite saying of my mentor and colleague in the Labor and Employment Group here at Burns & Levinson is “no good deed goes unpunished.”  Over my years of practice, I have found that this phrase oft comes to mind when an employer just wants to “do the right thing” or wants to be generous to an employee by giving the employee money, or time off, to which the employee is not entitled.  The phrase may be one that is recently being muttered around Malden City Hall, in light of the Massachusetts Supreme Judicial Court’s (SJC) recent decision in Dixon v. City of Malden.  … Keep reading

TAGS: , ,


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.”

 … Keep reading


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