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April 2013 Archives

UCC Article 9 Damages Provisions Displace Common Law

In a case handed down just last month, the Supreme Judicial Court reinforced the long-standing rule that provisions of the Uniform Commercial Code (the "UCC") displace common law principles that would otherwise apply in contexts not governed by the UCC.

The Burgeoning International Arbitration Field in Southeast Asia

As more and more nations strive to cut themselves a piece of the international arbitration pie, Southeast Asia is a perfect example of a region where countries are looking to broaden their presence in the field of international arbitration. Recently, the Singapore International Arbitration Centre ("SIAC") saw an increase to an all-time-high figure of $2.9bn (£1.9bn) in revenue from new international arbitration cases. The number of new cases for the SIAC jumped from 188 in 2011 to 235 in 2013, for an increase of 25 percent.

Adverse Possession: Can My Neighbor Really Take My Land?

Good fences make good neighbors.  Unless, of course, the fence sits beyond the recorded lot line and the landowner who is now enjoying a somewhat larger piece of property than is reflected on his or her deed claims title to the extra strip of land on his or her side of the fence under the doctrine of adverse possession. In that case, the neighbors (particularly in areas with high land values) often end up in litigation. 

UCC Article 9 Damages Provisions Displace Common Law

In a case handed down just last month, the Supreme Judicial Court reinforced the long-standing rule that provisions of the Uniform Commercial Code (the "UCC") displace common law principles that would otherwise apply in contexts not governed by the UCC.

Australian High Court Clears the Way for Enforcement of Arbitral Awards

One of the questions that is most often asked by clients is whether or not an award issued in international arbitration - which is a private vehicle for dispute resolution - is enforceable and whether collection can be guaranteed to the fullest extent of the law. In other words, whether an arbitral award can be enforced in the same way that a judgment from a court is enforced.

How Long Will My Appeal Take?

A party must act quickly to appeal an adverse judgment.  Rule 3(a) of the Massachusetts Rules of Appellate Procedure requires that a Notice of Appeal be filed within 30 days with the clerk of the lower court.  This is the most important deadline of the appellate process; an untimely filing of the Notice of Appeal is subject to dismissal.

When Must An Employer Make A Reasonable Accommodation For An Employee's Disability?

Most employers know that they have a duty to make a reasonable accommodation for an employee's disability or job restriction, but what that actually means in practice can be confusing.  Statutes that require such accommodation are the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and, in Massachusetts, the Massachusetts Fair Employment Practices Law, General Laws Ch. 151B.  To fall under the protection of either statute, the employee must have a physical or mental disability (or handicap) that substantially limits one or more of his or her major life activities.  The statutory definitions of major life activity are quite broad and can range from bodily functions to cognitive activities.

International Arbitration: Hearing Testimony by Videoconference

Testimony by videoconference in international arbitration offers the disputants both a fair means for assuring that relevant evidence is heard and an effective tool for cost reduction.

Modification of Child Support: What legal standard should be applied in a child support modification action?

On March 12, 2013, the Supreme Judicial Court ("SJC") in Morales v. Morales - SJC-11104 ruled that a divorced parent need not prove the widely recognized legal standard of "material and substantial change in circumstance" in order to modify a child support order in the Massachusetts Probate and Family Court.  

It's a bird! It's a plane! It's a contract!

Following an appellate mandate, a federal judge in California granted summary judgment to Warner Bros. in late March, all but ending almost a decade of copyright litigation between the entertainment conglomerate and Laura Siegel Larson, heir of Superman co-creator Jerry Siegel. See Larson v. Warner Bros. Entm't, Inc., 2013 WL 1164434 at * 9 (C.D. Cal. March 20, 2013). In a counterclaim, Warner Bros. sought (and was granted) a declaratory judgment that an October 2001 letter from Larson's then-attorney to Warner Bros.'s then-general counsel constituted a binding contract regarding the rights to the Man of Steel, even though subsequent negotiations to formalize the agreement fell apart. In January, the Ninth Circuit considered the letter kryptonite to Larson's claims under California law because it "constituted an acceptance of terms negotiated between the parties," specifically and accurately reflecting "the material terms [counsel for both parties] had orally agreed to" during a conversation three days earlier, in which they "had resolved the last outstanding point in the deal" following "years of negotiations." See Larson v. Warner Bros. Entm't, Inc., --- F.App'x. ---, 2013 WL 1113259 at *1 (9th Cir. 2013).

Old Common Law Applied to Current Problem

In a case decided earlier this year, the Appeals Court held that common law precedent some might deem "archaic" lives on in its applicability to structures built prior to 1978 that could, under today's standards, create an actionable water nuisance.

Foreign Legal Consultants in Massachusetts

In our modern global economy, many Massachusetts companies are finding themselves with a need not only for legal advice concerning Massachusetts and U.S. law, but also for legal advice concerning international law and the local laws of foreign countries in which they do business.  As a result, foreign legal consultants--foreign lawyers who advise Massachusetts companies and residents on foreign law--are increasingly in demand.  In order to avoid running afoul of prohibitions against the unlicensed practice of law, foreign legal consultants must become licensed prior to providing any legal advice in Massachusetts.  There are specific rules issued by the Massachusetts Supreme Judicial Court ("SJC") governing the licensing of foreign legal consultants and the limits of their practice.  Both foreign attorneys seeking to consult in Massachusetts, and Massachusetts companies seeking to retain foreign legal consultants, should become familiar with these and other applicable rules.

International Arbitration: Hearing Testimony by Videoconference

Testimony by videoconference in international arbitration offers the disputants both a fair means for assuring that relevant evidence is heard and an effective tool for cost reduction.

Domicile

The domicile statute in Massachusetts can be surprisingly confusing, especially when couples often own multiple homes, live in separate cities for professional reasons, or have recently moved to Massachusetts.  All of these situations are governed by M.G.L. c. 208, § 4 and the "exceptions" to the domicile statute contained in § 5.  Subject to certain exceptions, § 4 precludes a plaintiff from filing a divorce complaint in Massachusetts in the following situations:  (1) if the couple has "never lived together as husband and wife" in Massachusetts, or (2) if the "cause" (i.e., the irretrievable breakdown) occurred in another jurisdiction (unless the parties had lived together as husband and wife in Massachusetts and one of them lived in Massachusetts at the time the cause occurred).  

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