Communications between attorneys and clients that are not private, and/or communications between attorneys and third parties, cannot be protected from disclosure by the attorney-client privilege.  When the client is an individual, it generally is easy to discern if a communication is private, and it usually is obvious if an attorney is communicating with a third party.  When the client is a corporation or some other entity, however, it can be much less clear as to whether a particular person will be deemed to be the client or a third party.  One scenario where this issue routinely arises is when company counsel communicates with an individual who is an independent contractor or some other person working closely with the company, but who is not an employee.… Keep reading

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Under the Massachusetts Weekly Payment of Wages Act (“Wage Act”), the President, Treasurer and “any officers or agents having the management of such corporation” are considered to be employers and are subject to individual liability for failing to comply with its requirement. In a previous blog post, Managers of LLCs Can Be Personally Liable Under the Massachusetts Wage Act, I had written about Cook v. Patient Edu, LLC, where the Massachusetts Supreme Judicial Court clarified that managers of limited liability companies (not just the officers of a corporation) could be held individually liable under the Wage Act.  In Cook, the SJC concluded that it did not matter whether the entity was a limited liability company or corporation, and determined that “individuals with the authority to shape the employment and financial policies of an entity [were] liable for the obligations of that entity to its employees.”

In a recent unpublished decision, Segal v. Genitrix, LLC, the Massachusetts Appeals Court, relying on Cook, appears to have expanded the scope of individual liability under the Wage Act to certain equity holders of limited liability companies.

… Keep reading

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Post-Wimbledon Fee-Shifting Ideas for In-House Counsel


ATP Tour, Inc. is a Delaware membership corporation that operates as the governing body for the major (and some minor) men’s professional tennis circuits.  (A “membership” corporation does not have stockholders like a traditional corporation and often is the corporate form of choice for non-profits, although for profit companies can be membership corporations, as well.)  In the early 1990’s, ATP adopted a bylaw stating that:

In the event that (i) any [current or prior member or Owner or anyone on their behalf (“Claiming Party”)] initiates or asserts any [claim or counterclaim (“Claim”)] or joins, offers substantial assistance to or has a direct financial interest in any Claim against the League or any member or Owner (including any Claim purportedly filed on behalf of the League or any member), and (ii) the Claiming Party (or the third party that received substantial assistance from the Claiming Party or in whose Claim the Claiming Party had a direct financial interest) does not obtain a judgment on the merits that substantially achieves, in substance and amount, the full remedy sought, then each Claiming Party shall be obligated jointly and severally to reimburse the League and any such member or Owners for all fees,

… Keep reading
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In this installment of The In-House Advisor, we interview Neal Winneg, who was most recently the General Counsel of Jumptap, Inc., a mobile advertising company, until its sale to Millennial Media, Inc.  After starting his legal career at Skadden Arps, Mr. Winneg has been an executive officer and general counsel of numerous public and private companies, including The Learning Company, Upromise and The Princeton Review.  Mr. Winneg also teaches in the Transactional Law program at Boston University School of Law.

The In-House Advisor (IHA): The role of in-house counsel has changed a lot over the years.  How do you see that role changing going forward and how can today’s in-house counsel prepare for those changes?

Neal Winneg (NW): It’s not news that advances in technology over the last 20 years have created extraordinary opportunities along with concomitant challenges for virtually everyone, both in business and our personal lives.  So, too, for in-house counsel.  Our businesses are becoming more agile and automated, and they are benefiting from vastly more and better data in virtually all functions.  The challenge for in-house lawyers associated with this trend has been the need to handle substantially more complex and technical legal requirements and … Keep reading

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In A Right to Match Can Provide Multiple Benefits, I discussed some subtle ways to create value through the use of a right to match or a right of first refusal.  A recent decision by Justice Robert Ullmann of the Massachusetts Superior Court highlights some additional features of rights to match that are far from intuitive and could either be used to your benefit or be a trap for the unwary.

In Serrano v. Serrano, Dennis Serrano had the right of first refusal to purchase property owned by the Marina Trust.  In March of 2014, the trustee of that Trust offered the property for sale, and Bremis Realty, Inc. offered to purchase the property for $2.2 million and agreed to put up a $5,000 deposit.  After Serrano was notified of the offer, he timely informed the trustee that he was exercising his right of first refusal, and tendered a check in the amount of $5,000, confirming that he genuinely was matching the Bremis Realty offer.  When Bremis Realty learned that Serranno had exercised his right to match, it made an enhanced offer that included, among other things, an expedited closing date and additional pre-payments.

When the Trust … Keep reading

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As the debate continues in Massachusetts as to whether or not to ban noncompetition agreements, a related question remains: Is there really any value in having employees sign noncompetition provisions?  As a recent decision by U.S. District Court Judge Denise Casper in Boston Scientific Corp. v. Dongchul Lee confirms, if an employer has valuable trade secrets and wishes to prevent employees from potentially sharing them with a competitor, the answer is a resounding “yes!”

In Boston Scientific, the defendant, Dongchul Lee, was a former Boston Scientific employee who had worked on a number of its projects, including Mechanism of Action (“MOA”) research related to spinal cord stimulation (“SCS”).  While Dr. Lee had signed an employment agreement containing a non-disclosure provision and requiring him to return all Boston Scientific property upon termination of his employment, the agreement did not include a noncompetition provision (presumably because Dr. Lee worked in Boston Scientific’s Valencia, California office and noncompetition provisions are unlawful in California).

In November 2013, Dr. Lee resigned from Boston Scientific and went to work for Nevro, a competitor of Boston Scientific.  Further, Dr. Lee’s work for Nevro included engaging in MOA research related to SCS that was extremely similar … Keep reading

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Earlier this month Gov. Deval Patrick called for the elimination of noncompete agreements and formally proposed this as part of a bill called An Act to Promote Growth and Opportunity.  The Governor’s proposal, and the rallying cry of its various supporters, are firmly based on the premise that noncompete agreements have a negative impact on Massachusetts workers and the Commonwealth’s economy.  However, the notion that outlawing noncompete agreements is likely to have any appreciable, positive impact on the Massachusetts economy, as a whole, simply is not justified.  In fact, changing the law could well have a negative effect on the Commonwealth.… Keep reading

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It is not unusual for a plaintiff to have the ability to choose from at least two states when deciding the venue of a litigation. In such situations, many automatically choose to file suit in their home state, without giving much thought to potential advantages or disadvantages beyond having a home field advantage and/or forcing their adversary to travel long-distance.  While the substantive law applicable to an underlying dispute often is the same no matter where suit is brought (although even this is far from a hard and fast rule), below are three reasons why Massachusetts might be an attractive choice for your next lawsuit.… Keep reading

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In this installment of The In-House Advisor, we interview Keith Wexelblatt, Associate General Counsel at Reebok International Ltd. After being in private practice for 5 years, Keith joined Reebok as in-house counsel in 1998. In his present role, Keith manages the litigation and employment work for Reebok and various of its affiliates. In addition, he oversees all the legal work for, and leads the HR department of, Montreal based Reebok-CCM Hockey.

The In-House Advisor (IHA): The role of in-house counsel has changed a lot since you first went in-house. How do you see that role changing going forward and how can today’s in-house counsel prepare for those changes?

Keith Wexelblatt (KW): In-house practice has changed dramatically in my 16 years while at Reebok. Attorneys must now manage issues with less internal resources and follow directives to utilize outside firms to a lesser degree as cost concerns play an even bigger role in the decision-making process. You must assume even greater risks, but still maintain an ability to distinguish between knowledgeable risk-taking actions and recklessness. Also, the amount of change in technology, social media and legislation insures rapid and constant change, which places extra burdens on keeping abreast of these … Keep reading

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Just a few weeks ago, the Massachusetts legislature enacted a statute to close a loophole in the law in order to make “upskirting” a crime. While the law appeared to have universal support, one man apparently does not think the law goes far enough.

Angus MacPhool of Leicester, Massachusetts works as a general laborer at a farm owned by Ewan MacDonald, Sr. One day while MacPhool was climbing a ladder to bale hay from a loft in the barn, 5 year-old Ewan MacDonald, Jr., who was playing in the barn with his father’s smartphone, apparently took a picture of MacPhool. MacDonald, Jr., who plainly is quite the child prodigy, then apparently uploaded the photo to the Internet and inserted the phrase “hee-hee” in various places. While this might not seem like a big deal, MacPhool wears a kilt and is a “True Scotsman.”

After MacPhool learned of the photo, he was able to trace the uplink back to the elder MacDonald’s smartphone and brought suit against MacDonald. In his complaint, MacPhool alleged:

12.   Defendant Ewan MacDonald, Sr. (“Old MacDonald”), had a farm, and on that farm he had a barn.
13.   Old MacDonald had a … Keep reading