Shepard Davidson

the in-house advisor

Uncategorized


While every employer engages in some due diligence when considering a new hire, if your company routinely, or even occasionally, obtains a “consumer report” as a way to vet candidates, it behooves you to understand the rules set out in the Fair Credit Reporting Act as to how you can and can’t do this. Indeed, as the defendant in Kenn v. Eascare, LLC recently learned, even a small and seemingly innocuous failure to follow the FRCA can lead to extremely harsh results.

According to the Complaint in Kenn, Eascare routinely conducted background checks when hiring, and in January 2018, Nicole Kenn applied for a position with the company. As part of that process, Eascare provided her with a disclosure and authorization form entitled “Consumer Report/Investigative Consumer Report Disclosure and Release of Information Authorization.” The front side of the form asked Kenn to acknowledge her understanding that Eascare would conduct a background check on her for employment purposes, and it noted that this might include obtaining a “consumer report” or an “investigative consumer report” as defined under FCRA. The back side of the form sought Kenn’s authorization for an entity named PT Research to provide such reports and granted … Keep reading


While many attorneys aspire to be a General Counsel, the path to becoming a company’s chief legal officer can be even more convoluted than becoming a partner at a law firm. Recently, it was my pleasure to host an engaging panel discussion about what it takes to become a GC – and what takes to stay there – amongst three outstanding current and former generals counsel: Betty Francisco, former GC of the Sports Club/LA, David Mason, GC of Everquote, and Kathleen Patton GC of Jobcase and former GC of CarGurus.

Discussion topics included:

  • How the GC interacts and interrelates with the Board of Directors.
  • Mentoring and skill development essential to becoming an institution’s Chief Legal Officer.
  • What you must do as General Counsel to understand the company’s business and stay in touch with the people who run it — from the CEO to the hourly employees.

Click here to watch the webinar.

… Keep reading


When entering into a new venture, it is not uncommon for a new legal entity to be formed in order to insulate an existing company from the liabilities associated with the new business. While the law absolutely permits this, a recent case in the Bankruptcy Court, In Re Cameron Construction & Roofing, is a good reminder that achieving true insulation requires more than simply filing another set of Articles of Incorporation.In 2000, Cameron Construction & Roofing, Inc. (“Inc.”) was formed by Wilfred Cameron, who was the corporation’s President, Treasurer, Clerk and sole Director. Two years later, Mr. Cameron formed Cameron Construction LLC (“LLC”), and he was named its Managing Member. Further, Mr. Cameron owned 99.9% of the equity in LLC, with the remaining 0.1% being held by Inc.By 2014, Inc. had become insolvent, and it filed a Chapter 7 Bankruptcy Petition. A Trustee was appointed to marshal and distribute Inc.’s assets, and LLC was joined as a defendant in the bankruptcy proceeding. Specifically, the Trustee sought to have the Court rule that assets of LLC could be used to satisfy the debts of Inc. LLC objected to this, arguing, that it was undisputed that the two … Keep reading
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While companies, like people, are entitled to protect privileged communications with their counsel, companies only can act through individuals. So what happens when the former CEO wants to disclose a privileged communication he had with his company’s corporate counsel? As SEC v. Present highlights, if the company does not want that communication disclosed, the former CEO may be barred from making such a disclosure.… Keep reading

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On November 22, the U.S. District Court for the Eastern District of Texas granted the request of 21 states to temporarily halt the effective date the U.S. Department of Labor’s Final Rule (“Final Rule”) raising the salary threshold to qualify for the white collar exemptions from minimum wage and overtime requirements from taking effect. Accordingly, the Final Rule will not take effect on December 1, 2016.… Keep reading

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It’s human nature to engage in an emotional exhale after reaching an agreement in principle to settle a long-standing or hard-fought dispute. While doing so is all well and good, it is critical that you don’t let that deter you from exercising extreme focus on documenting that settlement in a carefully crafted agreement. Indeed, as the plaintiff in Zvi Construction v. Levy found out a few weeks ago, failing to do so can leave your client in a position where it is unable to obtain the fruits that it rightfully deserves.… Keep reading

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So your company is considering getting into a new area of business, and to do so, it will have to hire a variety of talent. While the launch of the new venture is not a certainty, the prospects of it are enticing, and time is of the essence. Thus, when talking to potential new hires, you want to focus on the positives and the possibilities. As a recent decision from the federal District Court, Bhammer v. Loomis Sayles and Company, Inc., makes clear, however, failing to disclose factors that may affect the viability of the new opportunity can be fraught with peril.… Keep reading

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In an ideal world, any modification of a contract would be in writing, signed by the parties, notarized and witnessed by an independent third party. In the real world, not only are contracts modified, or terms waived, without all of those formalities; but it is not at all unusual for business people to modify agreements orally with little more than a handshake.  Nevertheless, the enforceability of a specific oral modification or waiver can be as unpredictable as the New England weather.… Keep reading


We have all heard stories about the dangers of social media, whether it be an inappropriate tweet, a regrettable Facebook posting or a misdirected “sexting.” The decision issued by the Massachusetts Land Court in St. John’s Holdings, LLC v. Two Electronics, LLC  adds another peril to that list. It held that a text message sufficient to satisfy the signature requirement under the Statute of Frauds. … Keep reading