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October 2012 Archives

Impoundment Procedure: It's Not Just for Mitt Romney's Testimony

The Boston Globe's recent request to the Norfolk County Probate and Family Court to vacate portions of an impoundment order issued during Maureen Sullivan Stemberg's post-divorce action in 1990 against her ex-husband, Tom Stemberg (the founder of Staples), and make public the recorded, sworn testimony given by Mitt Romney during the trial highlights how impoundment works in the context of divorce and family law cases in Massachusetts.  

Avoiding the Pitfalls of Stepped Dispute Resolution Clauses

The dispute resolution clause in commercial contracts is very often inserted at the last minute without much attention given to the implications of the particular language contained in the clause.  It is increasingly common to see "stepped" dispute resolution clauses, whereby the parties agree to mediate disputes arising under the contract and, if mediation fails to resolve the dispute, to arbitrate.  The popularity of stepped clauses is due in part to the fact that they make a quick, inexpensive resolution possible through mediation, but provide arbitration as a fallback mechanism for dispute resolution.  While wholly reasonable on their face, stepped dispute resolution clauses can have surprising consequences when a business relationship sours.

Avoiding Legal Pitfalls When Employees Are Also Minority Shareholders

It is well recognized that the shareholders of a Massachusetts close corporation are fiduciaries of each other.  As a rule, this is true for majority shareholders, but the law may be much more nuanced regarding the duties of minority shareholders. A close reading of the Supreme Judicial Court's decision in the leading case Donahue v Rodd Electrotype, as well as the reasoning behind the commonly understood rule, suggests a minority shareholder's obligation to the majority is limited and depends on their ability to control or influence the close corporation and not simply their status as shareholders.  Moll, D., Of Donahue and Fiduciary Duty:  Much Ado About . . . ?, 33 Western New England L. Rev. 471, 478 (2011); See also, Blaiklock, A., Fiduciary Duty Owed By Frozen-Out Minority, 30 Ind. L. Rev. 763, 774 (1997).

Preferred Practices in International Arbitration

Over the last eight months, the School of International Arbitration at Queen Mary, University of London conducted a comprehensive and wide-ranging survey on issues germane to international arbitration - particularly on current and preferred practices in the field. The results of this study unsurprisingly point towards a great preference for autonomy and flexibility in international arbitration.

"What Happened in Vegas" is Fair Game in Divorce Court... and the "Cost" of a Weekend in Sin City Could be Alimony and Property Payments to Your Former Spouse

The Bachelor Party.  In the UK, it's known as "Stag Night"; in France, "enterrement de vie de garcon" - literally, "burial/funeral of the life as a bachelor."  For grooms-to-be across the globe, it is a time honored tradition, and in the US, Las Vegas is commonly known as the ideal destination for this debaucherous weekend of gambling, drinking and good-natured hazing. Perhaps thanks to the oft-uttered mantra of "what happens in Vegas stays in Vegas", most bachelors return home no worse for the wear.  For others, however, "what happened in Vegas" has resulted in damaged or broken marriages, and one Massachusetts husband will be paying the price for his misdeeds in cold hard cash.

A 'Well-Heeled' Divorcee and Mandatory Self-Disclosure

Beth Shak, a famous World Series of Poker player and aficionado of expensive, designer shoes, who has been featured on MTV Cribs and Millionaire Matchmaker, is in the news again, and she gives us food for thought regarding Mandatory Self-Disclosure and Financial Statements in divorce cases.  

Business Litigation Session Limits Partial Dispositive Motions

Prosecuting or defending a motion to dismiss or a motion for summary judgment can be a substantial undertaking.  In a complex case a motion for summary judgment can consume a hundred hours or more of attorney time and tens of thousands of client dollars.  At the same time, reviewing all of the submitted material and producing a reasoned opinion consume significant amounts of court resources, resources which are already stretched thin due to budgetary constraints.  Too often attorneys and litigants file motions to dismiss or for summary judgment as a matter of course, even when those filings will, at best, remove only a portion of the claims from a case, while achieving little or no reduction in further litigation cost or trial time.

Read (and Draft) That Forum Selection Clause Carefully!

The Massachusetts Appeals Court has ruled that a party to a business contract could file suit in Massachusetts even though the contract specified that "jurisdiction shall vest in the State of Illinois."  The Appeals Court held that the "jurisdiction shall vest" language is merely permissive and does not require that suit between the contracting parties be brought in Illinois. Boland v. George S. May International Company, No. 11-P-1300, slip op. (Mass.App.Ct. June 7, 2012). 

Allegations on 'Information and Belief' Not Enough to Stop Mortgage Foreclosures

One less-discussed but important aspect of the Supreme Judicial Court's ("SJC's") decision in Eaton v. National Federal Mortgage Association, 462 Mass. 569 (2012), is found in its most narrow ruling.  Even though the Court held that the named plaintiff, Henrietta Eaton, could benefit from the SJC's pronouncements despite an otherwise prospective application, the Court nonetheless struck down the preliminary injunction that brought Ms. Eaton to the SJC in the first place.

Foreign Judgments Recognition Law Due for Update

The Commonwealth's policy regarding the recognition and enforcement of money judgments rendered by foreign courts has suffered from lack of clarity, as shown in the current version of the Uniform Foreign Money-Judgments Recognition Act, Mass. Gen. Laws ch. 235, sec. 23, (the "UFMJRA").  A corrective bill pending in the Massachusetts legislature, the Uniform Foreign-Country Money Judgments Recognition Act, if adopted, would promote both predictability and sound public policy with respect to the enforcement of foreign judgments in the Commonwealth. The new foreign judgments recognition legislation was promulgated in 2005 by the Uniform Law Commission and has been adopted by eighteen states.

The ABCs of PC: What is a Parenting Coordinator ("PC"), and how can Parenting Coordination help you and your family?

According to the Guidelines for Parenting Coordination developed by the Association of Family and Conciliation Courts Task Force on Parenting Coordination, "[P]arenting coordination is a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children's needs, and with prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract."

Dubai Forum Gains Global Momentum

The Dubai International Financial Centre (DFCI) is quietly emerging as a dispute resolution forum of choice in international contracts involving companies based in the Middle East.  The DFCI's location in one of the fastest-growing areas of the Middle East makes it an attractive option for transnational companies doing business in the region.

How Attachment Impacts Parenting Plans: Infants and Overnights

I recently attended the 49th Annual Conference of the Association of Family and Conciliation Courts in Chicago.  The conference was entitled Attachment, Brain Science and Children of Divorce:  The ABCDs of Child Development for Family Law.  In addition to seminars focused on the role of Parenting Coordinators in resolving disputes between parents in high-conflict custody cases, there were presentations on attachment theory, and how developments in social science help us formulate appropriate parenting plans, especially in cases involving infants and toddlers.

Foreign Judgments Recognition Law Due for Update

The Commonwealth's policy regarding the recognition and enforcement of money judgments rendered by foreign courts has suffered from lack of clarity, as shown in the current version of the Uniform Foreign Money-Judgments Recognition Act, Mass. Gen. Laws ch. 235, sec. 23, (the "UFMJRA").  A corrective bill pending in the Massachusetts legislature, the Uniform Foreign-Country Money Judgments Recognition Act, if adopted, would promote both predictability and sound public policy with respect to the enforcement of foreign judgments in the Commonwealth. The new foreign judgments recognition legislation was promulgated in 2005 by the Uniform Law Commission and has been adopted by eighteen states.

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