If your company, like many, includes “standard” confidentiality and non-disparagement provisions in its employee severance agreements, those agreements may contravene a recent NLRB decision, McLaren Macomb. In that matter, the NLRB considered the validity of severance agreements offered to 11 employees who were furloughed where such severance was conditioned on them agreeing to the following, seemingly innocuous, confidentiality and non-disclosure provisions:

Confidentiality Agreement. The Employee acknowledges that the terms of this Agreement are confidential and agrees not to disclose them to any third person, other than spouse . . . professional advisors . . . or unless legally compelled to do so . . . .

Non-Disclosure. At all times hereafter, the Employee promises and agrees not to disclose information, knowledge or materials of a confidential, privileged, or proprietary nature of which the Employee has or had knowledge of, or involvement with, by reason of the Employee’s employment. At all times hereafter, the Employee agrees not to make statements to Employer’s employees or to the general public which could disparage or harm the image of Employer, its parent and affiliated entities and their officers, directors, employees, agent and representatives.

Prior to McLaren Macomb, such provisions had … Keep reading


I just came across a decision issued in the District of Massachusetts, Logue v. The Rand Corporation, and it reminded me of some key aspects of the attorney-client privilege related to in-house counsel about which I have written over the years. Some of those principles include the following:

… 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 it takes to stay there – amongst three outstanding general counsels: Jason Ellis of Staples, Thanda Fields Brassard of Fiduciary Trust of New England, and Levina Wong of Veson Nautical.

Discussion topics included:

  • The skills needed to be a General Counsel and how to get them
  • How the GC interacts and interrelates with the Board of Directors and C-Suite.
  • 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


Company leaders—whether the GC, chief executive, or some other officer in charge—often call their outside counsel when a formal claim is made against them, or a dispute appears headed toward formal litigation. What business leaders often don’t think to do is put their insurance carrier on notice as soon as a claim is made. As a recent District of Massachusetts decision related to the heavily publicized Harvard affirmative action lawsuit reinforces, failing to alert your insurance carrier of a claim can have severe consequences. 

For Harvard, these consequences materialized as a $15 million loss. 

In November 2014, Harvard was sued in connection with rejecting a group of anonymous Asian American students from admission to the university. Still, the school did not provide its insurance carrier, Zurich, a notice of the claim until May 23, 2017. Zurich then denied coverage, relying on its “claims-made” policy, which requires that any claims asserted in the policy period be reported to Zurich no later than 90 days after the expiration of the policy period, i.e., by January 30, 2016. Significantly, that coverage would have applied to the $15 million in legal fees Harvard incurred to defend the lawsuit. 

Incredulous by … Keep reading


As discussed in a blog post last year, Uber learned the hard way that with online agreements, it can take more than a simple provision stating “all disputes must be arbitrated” to ensure that your customers cannot sue you in a court of law. In a recent decision issued by the Massachusetts Superior Court (Good v. Uber Technologies, 2022 WL 10448746), Uber was foiled again – even though it had initiated what it must have thought were fool-proof protocols to prevent it from being hauled into court.

William Good had been an Uber user since August 13, 2013, and on April 25, 2021, he tried to order a ride but was blocked by a pop-up message stating: “We’ve updated our terms.” The pop-up message went on to say: “We encourage you to read our updated in Terms in full.” Among those terms was a provision stating that Uber’s customers were “required to resolve any claim against Uber … in arbitration.”

The pop-up screen also contained a blue, underlined hyperlink entitled “Terms of Use,” and at the bottom of the screen in bold font, it stated: “By checking the box, I have reviewed and agree to the … Keep reading


Many states are now enacting laws to further promote pay transparency, and if you have employees in those jurisdictions, you need to take note. Not surprisingly, California’s Pay Transparency Act is a leading example of this and has a number of important and new requirements.

First, California employers with 15 or more employees will be required to include pay scales in new job postings. This obligation extends to  employers engaging in a third party for recruiting (e.g., job posting boards). Employers, therefore, should ensure that contracts with third parties include this requirement and appropriate indemnification clauses.

Second, California now – like Massachusetts (see M.G.L. c. 149 § 105A(c)(2)) – prohibits employers from asking about an applicant’s salary history or using salary history as a factor in a hiring decision. However, if an applicant voluntarily discloses salary information, employers may consider that information in determining the salary for that applicant. Further, employers may ask about an applicant’s salary expectations – which is a great way to engage in a conversation that might yield information helpful to hiring without risking a statutory violation.

Third, California now requires employers to disclose a position’s pay scale to an applicant … Keep reading


While I can’t remember anything specific from my 1-L Contracts class, I’m sure that is where I first was exposed to the concept that an integration clause could prevent a party to a written contract from claiming that other terms had been agreed to orally but, for some reason, had not been memorialized in the document. As the First Circuit recently discussed in Guldseth v. Family Medicine Associates, LLC, however, integration clauses can come in different shapes and sizes. As an initial matter, there is the question of whether the clause results in the contract being fully integrated or only partially integrated:

By fully integrated, we mean a statement which the parties have adopted as a complete and exclusive expression of their agreement. Compare that to [a] partially integrated agreement, which means the agreement is intended as a final expression of one or more terms, but not as the complete and exclusive expression of all terms to which the parties agreed. The degree of integration in turn dictates the degree to which earlier agreements are discharged by the later-formed agreement [and] whether an agreement is fully integrated is … an issue of fact.”

Indeed, because the scope … Keep reading


Under the Massachusetts Wage Act, M.G.L. c. 149 § 150, a terminated employee is entitled to be paid all wages, including accrued vacation time, on the day of termination, and the failure to do so makes the employer liable for mandatory treble damages and attorneys’ fees. As the Supreme Judicial Court recently ruled in Reuter v. City of Methuen, while this rule may seem harsh and offers no “good faith exception,” that is what the legislature intended. Indeed, Reuter is a cautionary tale from which in-house counsel should take note.

After having worked for the City of Methuen for 25 years, Beth Reuter was convicted of larceny, prompting the City to terminate her employment. At the time of her termination, Reuter was owed $8,952.15 for accrued vacation time, which the City did not pay until three weeks later. Eventually, Reuter’s counsel noted that the City’s conduct violated the Wage Act and demanded triple the accrued vacation pay and attorneys’ fees (less the $8,952.15 already paid). Reuter filed suit, and the City took the position that because it paid the accrued vacation amount before any demand had been made and prior to the lawsuit being filed, the most for … Keep reading


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