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November 2014 Archives

Massachusetts High Court Compels Decryption of Computer Files

Television crime dramas - and televised congressional testimony - have made "taking the Fifth" part of our collective civic consciousness.  The Fifth Amendment to the Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself," and, similarly, Article 12 of the Massachusetts Declaration of Rights states that no person shall "be compelled to accuse, or furnish evidence against himself."  But what happens when these 18th Century legal principles confront uniquely 21st Century circumstances?  

Overcoming Language Barriers in International Arbitration

As with any cross-border endeavor, language barriers can become a hurdle to overcome in international arbitration and litigation. The dispute resolution clause in a contract may compel the client to arbitrate or litigate in a country other than their own. Arbitrators, parties, and even counsel may all hail from countries that speak different languages. Thus, a successful practitioner must give due consideration to the opportunities and challenges presented by the diversity of languages that may present itself in any given case.

Trial Court Declines to Extend Alimony Despite Wealthy Former Husband's Ability to Pay

The Alimony Reform Act of 2011 provides for alimony to presumptively terminate when a payor reaches full retirement age unless a Court finds that a material change in circumstances has occurred and there is clear and convincing evidence to support an extension of the payments.  While appellate courts have yet to rule as to what facts and circumstances may justify such an extension, at least one trial court has found that the ability of a wealthy former spouse to continue to pay support after reaching full retirement age is not, in and of itself, sufficient to justify an extended alimony order.

Massachusetts Court Sheds Light on Procedure for Appealing a BHAC Determination

In Maiocco v. Leggs, 32 Mass.L.Rptr. 228 (2014), Judge Robert Gordon considered when a party's right to appeal a decision of the Beacon Hill Architectural Commission terminated. Under 1995 Mass. Acts, Chapter 616, the proponent of a construction project involving exterior architecture within the Beacon Hill Historic District must apply to the Beacon Hill Architectural Commission for approval of the project in the form of a Certificate of Appropriateness (COA). After holding a public hearing on the application, the Commission "determine[s]" whether the proposed construction project is "appropriate to the preservation of the historic Beacon Hill district..."  Any party "aggrieved" by the Commission's decision must notify the Commission of its intent to appeal within 8 days of mailing of notice of the determination and must file its appeal in Suffolk Superior Court within 30 days of the "determination."

What Duties Does a Minority Shareholder/Employee Owe Following a Wrongful "Freeze Out"?

As discussed in a previous blog post, a well-drafted shareholder or employee agreement is extremely important to clarify the rights and duties of an employee who is also a minority shareholder of a Massachusetts close corporation.  The need for a clear agreement is especially important if there is a dispute concerning the termination of a minority shareholder/employee.  Where no agreement exists, or if the applicable agreement does not entirely govern the rights and duties of the parties in a particular situation, the obligations are governed by their fiduciary duties to each other, which may be unclear depending on the circumstances.

A Practical Guide to Selecting an Arbitrator

One of the many advantages of arbitration over litigation is that the parties to a dispute have the opportunity to choose the arbitrator or arbitrators who will decide their claims. The selection of an arbitrator is a critical decision point that necessarily occurs very early in the arbitral process. The stakes are high since an arbitrator's award is very difficult -- some say nearly impossible -- to have vacated. Choosing an arbitrator who is well suited to your case requires careful consideration of many factors, several of which are set out below. 

UCC Section 4-406(f) Reporting Requirement Has Teeth

While Section 4-111 of the Uniform Commercial Code ("UCC") contains a three-year statute of limitations for filing claims against a bank for paying an unauthorized or altered item from an account, a more potent tool for banks can be found in UCC 4-406(f), a one-year statute of repose for reporting the disputed item to the bank.  Under UCC 4-406(f), a customer is required to report the disputed item to the bank within one year after the bank makes available the account statement or other documentation of the items paid, but what constitutes a "report" to the bank by the customer is not spelled out in the statute. Courts that have analyzed the issue have read UCC 4-406(f) as requiring such a report to specify the account, payment amount, check number, or other specific information identifying the unauthorized draft.  Among the methods which have failed to satisfy the reporting requirement:  Placing a blanket stop-payment order on an account and requesting copies of the account statements, Hatcher Cleaning Co. v. Comerica Bank - Texas, 995 S.W.2d 933 (Tex. App. 1999); requesting copies of potentially invalid checks from the bank, Watseka First National Bank v. Horney, 686 N.E.2d 1175 (Ill. App. 1997); reporting to the bank that a specific employee was suspected of check forgery on the company accounts, Villa Contracting Co., Inc. v. Summit Bancorporation, 695 A.2d 762 (N.J. Super. Ct. Law Div. 1996); discussing with a bank officer possible irregularities with single signatures on a dual-signature account, First Place Computers, Inc. v. Security Nat. Bank of Omaha, 558 N.W.2d 57 (Neb. 1997); reporting to the bank a belief of foul play or general notice of a possible theft, Simi Management Corp. v. Bank of America, N.A., 930 F. Supp. 2d 1082 (N.D. Calif. 2013).

The Civil Aspects of International Child Abduction

The Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") is a multilateral treaty.  The signatory countries cooperate in returning children to their home country for custody proceedings. The United States assisted in drafting the Hague Convention and became a signatory in 1981.  Hague Convention cases sometimes involve disputes over visitation rights, but more often these cases focus on returning a child whose parent has wrongfully removed the child from the home country or wrongfully retained the child in a foreign country.  In return cases, the left-behind parent with custodial rights seeks the child's return to the country of habitual residence.  Once the child is returned, the court in the child's home country can evaluate the underlying merits of the custody dispute.  

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