Shepard Davidson

the in-house advisor

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One of my law school classmates asked me several month ago about the merits of entering into a joint defense agreement with another party to protect communications he had with that party’s counsel in connection with a potential dispute with a third company. He was concerned that entering into such a joint defense agreement might make his client and its ally look guilty. I told him that no formal agreement was necessary; the key was whether the communications concerned a matter of common interest to the parties communicating. Last week, I happened to come across The Hilsinger Co. v. Eyeego, LLC, which put a new spin on what the judge in that case referred to as the “Community of Interest Privilege.”… Keep reading


While no in-house attorney drafting a business contract wants to focus on being in litigation with her business partner, as I discussed in a 2013 blog post, thinking like a litigator at the drafting stage is critical in order to avoid potential surprises. A good example of this comes in the context of crafting a forum selection clause that truly achieves your objectives.… Keep reading

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For the second year in a row, my In-House Advisor co-publisher, Renee Inomata, has been selected for inclusion in The Best Lawyers in America® for the Employment Law – Management category. Best Lawyers® is based on an exhaustive peer-review survey in which tens of thousands of leading attorneys throughout the country voted on the legal abilities of other lawyers in their practice areas. Congratulations, Renee, on this well-deserved honor!

-Shep… Keep reading


During the dog days of summer, anything with the word “freeze” may sound appealing. But if the freeze is a “trustee process attachment” (tying up a bank or other institutional account), a whole different set of emotions can be evoked. As I discussed in Gain Leverage by Freezing Bank Accounts – Part I and Part II, knowing the law surrounding trustee process attachments can create or defuse significant and sometimes dispositive leverage. Further, and as the Federal District Court reminded us recently in DeBenedictis v. Dougherty, the speed with which a party acts or reacts when a trustee process is sought can be critical.… Keep reading

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Earlier this year, in Mandatory Paid Sick Leave — What In-House Counsel and Employers Need to Know, I previewed some of the requirements of the Massachusetts Earned Sick Time Law. Final regulations were issued by the Attorney General’s office on June 22, 2015. Almost one month after the deadline for compliance, how are you doing in complying with the new law? If you’re like many employers, you may still be figuring it all out. Here are four key points all employers should be aware of.… Keep reading

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I’ve been involved in many cases where it is alleged that someone violated his or her non-compete agreement or misappropriated the company’s confidential information or trade secrets. Often, the key issue has been not what the former employee did, but what the company did not do to protect the information it contends is proprietary. The issue of failing to protect one’s confidential information and trade secrets was highlighted recently in the Appeals Court decision of Head Over Heels Gymnastics, Inc. v. Ware.… Keep reading

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Because over 95 percent of civil disputes are resolved without a final judgment, parties routinely enter into settlement agreements that include releases. Further, for those disputes that do not spawn formal litigation, it is not uncommon for in-house counsel or senior business executives to take the lead in a settlement. As such, it is important for anyone dealing with a settlement to understand how even a few words in a settlement agreement can make a big difference in the scope of a release.… Keep reading

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Two weeks ago, I participated on a panel for a webinar on liquidated damages with three other panelists from New Jersey, Florida and Texas. In preparing with the other panelists, I was surprised to learn that while there are many common threads running through the law of liquidated damages across the country, there also are some startling differences depending upon which jurisdiction’s law controls.… Keep reading

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When thinking about liquidated damages, most people focus on the fact that a properly drafted liquidated damages provision will enable the non-breaching party to recover a set amount without ever having to prove how much, if any, actual damages were incurred. What people often forget to consider, however, is that a liquidated damages clause also sets a ceiling for damages.… Keep reading

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Convincing a court that a company has properly classified a worker as an independent contractor has become increasingly difficult in Massachusetts. So, the Massachusetts Supreme Judicial Court’s decision just last week that taxicab drivers are, in fact, properly classified as independent contractors was somewhat unexpected.… Keep reading

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