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September 2012 Archives

Lance Armstrong's Legal Battle Questions Fairness of Arbitration

Lance Armstrong's defense against the persistent doping allegations leveled against him, and the athlete's subsequent refusal to participate in the U.S. Anti-Doping Agency's prosecution of several doping-related charges against him, dominated sports headlines this summer. Interestingly, Armstrong's battle against the USADA also cast a spotlight on oft-cited concerns about due process in arbitration.

Beyond Summary Process: The Preclusive Effect of Eviction Actions

Last year, in Bank of New York v. Bailey, 460 Mass. 327 (2011), the Supreme Judicial Court (the "SJC") ruled that a Housing Court judge presiding over an eviction matter could hear a post-foreclosure mortgagor's claim that the foreclosure sale allegedly divesting him of title was defective - and thus, he should not be ousted from the property.  The Bailey decision's impact will likely be felt in not only in summary process sessions, however, but also in other fora where summary process decisions are likely to be given preclusive effect. 

SJC Decides No Retroactive Application in Favor of Adopted Heirs

Adopted children or "issue" cannot take from an irrevocable testamentary trust executed at a time when adoptees were excluded from the definition of "child" in such instruments, despite adoption legislation aimed at achieving precisely that goal, according to the Supreme Judicial Court (the "SJC").

The International Effort to Regulate and Criminalize Cyberattacks

It was recently revealed that the United States government has been launching cyberattacks on Iran's nuclear enrichment program's computer systems for years, with the purpose of delaying and obstructing the development of what U.S. intelligence believes are nuclear weapons. These attacks, launched with the help of computer experts in Israel, were mostly contained to nuclear facilities. However, in the summer of 2010, one of the "worms" developed by the U.S. and Israel - nicknamed "Stuxnet" - broke through the network and began infecting computers on the worldwide Internet, leading to calls for increased regulation of cyberattacks.

Important Changes Brought About By The CORI Reform Law

The final changes brought about by the CORI Reform Law went into effect on May 4, 2012 and, with those changes, how employers access and use a job applicant's criminal history has changed.  Employers must comply with the new procedures or may face fines up to $50,000.

In the Wake of 'Connors,' When Are Section 7 Zoning Appeals Viable?

Just about a year ago, in Connors v. Annino, 460 Mass. 790 (2011), the Supreme Judicial Court left no doubt that an abutter receiving "adequate notice" of issuance of a building permit must act fast (within thirty days of the issue date) to appeal the permit as violative of the local zoning code - and a zoning enforcement action brought pursuant to G.L. c. 40A, Sec. 7 will not be available to revive such a claim during the far longer six-year "repose" period set forth in that statute.

Obtaining Discovery From Massachusetts Witnesses For Use In An Out Of State Action

It is not uncommon for litigants in proceedings pending outside of Massachusetts to need documents or testimony from witnesses who reside in Massachusetts.  Even when the witness is willing to provide the requested information voluntarily, it is wise to serve a subpoena to minimize the delay if the witness changes his mind and decides not to cooperate.  Indeed, even a "friendly" subpoena carries the threat of contempt sanctions for noncompliance and therefore serves as a powerful deterrent if the witness gets cold feet.  A subpoena also has the advantage of preventing the witness from appearing predisposed to provide evidence favorable to the requesting party as may be the case if the evidence is voluntarily provided.

Privacy Settings Do Not Prevent Discovery of Social Media

While millions of Americans have become adept at managing their social network privacy settings to keep their postings hidden from the general public, individuals and companies involved in litigation should not expect those settings to shield information from discovery.  The recent trend among numerous federal and state courts has been to find that "[Social Networking Site] content is not shielded from discovery simply because it is 'locked' or 'private.'"  E.E.O.C. v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. 2010).  While "privacy concerns may be germane to the question of whether requested discovery is burdensome or oppressive and...has been sought for a proper purpose...a person's expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery."  Simply Storage at 434.  Several other recent cases have followed this same reasoning, including Romano v. Steelcase, Inc., 30 Misc.3d 426 (N.Y. Sup. Ct. 2010) (ordering access to plaintiff's Facebook and MySpace records); Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Penn. June 22, 2011) (ordering production of relevant information housed on Facebook after in camera review).

Supreme Court Reaffirms FAA's Pro-Arbitration Policy

In a harshly worded per curiam decision, the U.S. Supreme Court recently reaffirmed the broad reach of the Federal Arbitration Act ("FAA") and restated that the FAA "reflects an emphatic federal policy in favor of arbitral dispute resolution." The FAA is the federal statute that regulates the relationship between the judicial process and arbitration.

Subcontractors Beware: General Contract's Fine Print May Govern Your Contract Too.

The Supreme Judicial Court recently exhorted subcontractors to make sure they know the terms of general contracts before agreeing to import them in a wholesale fashion into their own subcontract.

Split Over Enforceability of Unsigned International Arbitration Agreements

Arbitration clauses in international contracts have become increasingly common.  Many global companies include arbitration provisions in their standard, pre-printed documents, such as estimates, purchase orders, and invoices.  Are these arbitration clauses effective in international commerce?  The answer, surprisingly, is "probably not."

Supreme Court's Decision Partial Victory for Obama

On the last week of the current term, the Supreme Court announced its decision in the watershed case of Arizona v. United States, granting the Obama administration a partial victory over the state of Arizona and its efforts to expand the enforcement of undocumented immigration.

The When of Mediating a Complex Business Dispute

Increasingly the question regarding mediation of a complex business litigation case is not whether but when. Among experienced litigation counsel, there is widespread agreement that mediation should be attempted in many if not most cases. The resources of time and money committed to mediation are usually modest compared to the requisites of full-blown litigation. It is a voluntary and confidential process. Though experiences may vary, I have found that mediation succeeds more times than not in obtaining mutually acceptable settlements. Even if a case does not immediately settle in mediation, both parties are apt to receive significant value in obtaining the assessment of a neutral third party and also in learning more about how the other party (or parties) calculates the risks and rewards of the case.

Automatic Restraining Order upon filing a Complaint for Divorce

Upon the filing a Complaint for Divorce, the spouse initiating the divorce action, the plaintiff, becomes subject to the Automatic Restraining Order under Massachusetts Supplemental Probate and Family Court Rule 411.  The spouse, who must respond to the plaintiff's action, or, in other words, provide an Answer to the Complaint, is the defendant; and he or she becomes subject Rule 411 upon service of process, i.e. when a Constable or Sheriff serves the defendant with the Summons and Complaint.  

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