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December 2012 Archives

Three Strikes and You're Out: Using Baseball Arbitration to Resolve International Tax Disputes

As more and more companies conduct business across international borders, questions of tax revenue recognition and transfer pricing taxes become more and more salient. Tax authorities in different nations, fighting over which country gets to tax the multi-national corporation's income, enter into sometimes-heated disputes over where that income should be recognized, leading to costly and time-consuming litigation.

Foreclosure By Entry Is Effective Method for Mortgagee to Gain Fee Simple Title

The Massachusetts Land Court's decision this fall in HS Land Trust LLC v. Gonzalez, Civ. Action No. 11 Misc. 446482 (October 30, 2012), serves as a useful reminder that a foreclosure by entry - which often accompanies a foreclosure by sale - is a perfectly valid method of obtaining title following the breach of a mortgage's conditions.  

Unmarried Parents and Unequal Treatment in Custody Disputes

Research published by the Centers for Disease Control and Prevention earlier this year found that nearly one in four first-born babies, or 22 percent, are born to unmarried parents living together.  A growing cultural acceptance of having children out-of-wedlock has contributed to the dramatic jump in this statistic; the number of children born to unwed couples has nearly doubled since 2002.  

Instagram's New Terms of Service Anger Users

Social media users are fuming over changes in the popular photo-sharing and social networking website Instagram's Terms of Service.  The most talked-about change appears to give Instagram the right to sell users' photographs to third parties for use in advertisements: "...You agree that a business or other entity may pay us to display your username, likeness, photos..., and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you."  The backlash against that clause has been severe, but it isn't the only change Instagram made to its TOS.  Beginning January 16, 2013, Instagram users will be obligated to arbitrate most disputes they have with the company and to waive rights to participate in a class action lawsuit or class-wide arbitration against Instagram, unless they opt-out of the arbitration clause in writing.

Senator-elect Elizabeth Warren Appointed to Senate Banking Committee

The Democratic Steering Committee has approved the assignment of Senator-elect Elizabeth Warren, one of the most vocal critics of the financial services sector, to the Senate Banking Committee.  Warren previously led a congressional oversight panel that criticized the government's so-called "bank bailout" in the wake of the financial crisis.  Warren was the driving force behind the creation of the new Consumer Financial Protection Bureau, an agency created by the Dodd-Frank financial system overhaul.  Her potential appointment to head the Bureau, however, drew strong objections from Senate Republicans.  When the appointment went to former Ohio attorney general Richard Cordray, Warren instead successfully challenged incumbent Senator Scott Brown's reelection.

Nokia Sues RIM to Enforce International Arbitration Award

Finnish company Nokia Oyj recently commenced what could be a protracted battle to enforce an international arbitration award won last month against Blackberry-maker Research in Motion Ltd. ("RIM").  In late November, Nokia sued RIM in federal court in California to enforce the Swedish arbitrator's decision, which stated that Nokia is entitled to receive royalties on RIM's sale of WLAN-compliant mobile devices.  "Wireless local access network systems" or "WLAN" technology allows mobile devices to connect to WiFi networks. 

The Best Interests Legal Standard

Often we hear about the best interests legal standard that Judges in the Probate and Family Courts apply to make important decisions affecting the lives of minor children.  Custody determinations and appropriate parenting plans are based on this guiding principle.  Contrary to common belief, the "best interests" standard is gender-blind.  M.G.L. Chapter 208, Section 31 provides that in determining the question of custody "the rights of the parents shall . . . be held to be equal."  In deciding issues involving custody, the overriding concern of the Probate and Family Court Justice assigned to the case must be the promotion of the best interests of the children and their general welfare, not the gender, feelings or wishes of a particular parent. 

A Massachusetts Statute of Limitations Checklist

In evaluating any business litigation matter, one of the first and most critical points to consider (as a plaintiff or a defendant) is whether any aspect of the case may be untimely because it is barred by operation of a statute of limitation.  Too often, plaintiffs lose valuable claims because they (or their lawyer) fail to appreciate that the "clock" on one or more of their claims has run down.  Defendants, on the other hand, sometimes overlook excellent statute of limitations based defenses that can reduce or eliminate their exposure in a lawsuit.  Wouldn't it be useful if there were, in one place, a summary of the laws concerning the time limitations, accrual periods, and exceptions applicable to Massachusetts commercial cases?  Now there is one.  My colleague William G. Cosmas and I are pleased to share the Massachusetts Statute of Limitations Checklist that we prepared for publication with the Practical Law Company.  

A Treaty for Enforcement of Judgments Abroad

The litigation of international disputes in U.S. Courts is often disfavored for the simple reason that the enforcement of judgments abroad is notoriously difficult. International arbitration is the preferred alternative to litigation because the United States, along with 145 other countries, is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, (commonly referred to as the New York Convention), a treaty that provides for the recognition and enforcement of international arbitral awards. Within the next year, the United States is expected to begin implementing a new treaty that will eliminate major obstacles to the enforcement of judgments abroad as to certain civil matters. The implementation of the treaty will give parties to international commercial agreements more flexibility in choosing their preferred method of dispute resolution.

Department of Children and Families Records in Family Court

The Massachusetts Department of Children and Families (DCF) is the state agency that receives and responds to reports of abuse and neglect of children.  Following a report of child abuse or neglect, DCF's investigation is documented with records that likely contain information concerning sensitive and personal issues.  In deciding issues involving the care and custody of children, the Court may seek information/documents from DCF.  In order to do so, the Court must abide by specific rules regarding Department of Children and Families Records in the Family Court.

Venue for a Petition for Partition in Massachusetts

Parties who bring a petition for partition in Massachusetts have the choice under G.L. c. 241 of filing the action in either the Land Court or in the Probate and Family Court. As to the Probate court, venue is proper in the Probate Court of any county where any part of the land in the petition lies. Venue is proper in the Land Court, which sits in Boston, for any land within the Commonwealth. Where should you bring your case? There are a number of practical factors to consider.

Make Sure Your Partnership/Shareholder Agreement Has Escape Hatches

Quite often, I find myself litigating partnership and close corporation disputes that could have easily been avoided had the partners just taken a little more care in drafting their agreements.  The most common, avoidable problems are:

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