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February 2015 Archives

Application of the CISG in International Sale of Goods Contracts

When handling a commercial case between parties from different countries, it is important to consider what impact, if any, the United Nations Convention on Contracts for the International Sale of Goods ("CISG") may have on the dispute. If it applies to a contract dispute, the CISG will supplant the Uniform Commercial Code and other state law concerning sales of goods.

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.

Supreme Judicial Court Authorizes Parent Coordinators But Limits their Authority

During a contested divorce or paternity action involving minor children, and often long after the case is formally resolved, some parents face ongoing disputes over "day to day" matters such as whether Fitch Law Partners LLP should participate in two extracurricular activities or three.  The failure, inability, or outright refusal of one or both parents to communicate and reach an agreement with respect to these matters can lead to repeated court appearances and thousands of dollars in legal fees.  In order to provide parties a forum for efficiently resolving such disputes, as well as assistance with learning to better communicate and co-parent, many parties will agree or be ordered to engage a professional parent coordinator ("PC").

Massachusetts Appeals Court Issues Important Zoning Clarification

In Pelullo v. Croft, the Massachusetts Appeals Court issued an important decision regarding zoning by-laws.  86 Mass. App. Ct. 908 (2014).  The Defendant applied to the Natick building inspector for a permit to construct a single family home on his lot at 15 Upland Road.  Id. at 909.  The plaintiff, who owned a property abutting 15 Upland Road, filed an opposition to the permit application on the grounds that the lot did not meet the requirement in a Natick Zoning Bylaw that there be a "minimum lot depth of 125 feet" for the construction of a single family home in a residential zoning district.  Id. at 908.

Argument Foreclosed Where Party Did Not Appeal

A recent SJC decision illustrates the unfortunate position in which a party may find itself when it fails to file an appeal but finds itself before an appellate court nonetheless as a result of an appeal filed by the opposing party. In Town of Athol v. Professional Firefighters of Athol, Local 1751, 470 Mass. 1001 (2014), the Supreme Judicial Court considered arguments that arose when town of Athol unilaterally raised the co-payments paid by members of a firefighters' union for medical services. After the union filed a grievance, alleging that the town's action had violated its collective bargaining agreement, the matter proceeded to arbitration. An arbitrator determined that changes to health insurance benefits were mandatory subjects of collective bargaining and the town had violated the collective bargaining agreement by making the changes unilaterally.  The arbitrator required the town to return the co-payments to their original amounts and to "make union members whole for economic losses" incurred as a result of its improper action. The town appealed the arbitrator's award, filing a complaint in the Superior Court.

Massachusetts Appeals Court Reaffirms MERS Mortgage System

The Massachusetts Appeals Court has reaffirmed its holding in Sullivan v. Kondaur Capital Corp., 85 Mass.App.Ct. 202 (2014), that mortgagors have standing only to challenge assignments of their mortgages that are void, not merely voidable, and that the Mortgage Electronic Registration Systems, Inc. ("MERS") system of mortgage assignments comports with Massachusetts law.  The Court in Shea v. Federal National Mortgage Association, et al., No. 13-P-1630, slip op. (Mass. App. Ct. Feb. 18, 2015), further reaffirmed that a mortgagee need not ever hold the note secured by the mortgage, and that Massachusetts law does not require authorization from the noteholder for a mortgagee to assign the mortgage to another party.

Supreme Judicial Court Determines that Retirement Provision of Massachusetts Alimony Reform Act Is Not Retroactive

On January 20, 2015, the Supreme Judicial Court issued decisions in three cases involving an important provision of the Massachusetts Alimony Reform Act ("the Act").  In each of these cases, which are described more fully below, the alimony payor wanted to terminate their alimony obligation based upon the Act's language that alimony "shall terminate upon the payor attaining the full retirement age."  See G.L. c. 208, § 49(f).   

Do Violations of the Building Code Violate Chapter 93A?

The Massachusetts Consumer Protection Act, General Laws Chapter 93A, § 2, prohibits "unfair or deceptive acts or practices in the conduct of trade or commerce."   Since Chapter 93A was enacted in 1967, the Commonwealth's courts have continued to define the scope and substance of the conduct that the law prohibits.  

Alabama Supreme Court Holds Bank of First Deposit Must Bear Liability for Under-Encoded Check

On September 30, 2014, the Alabama Supreme Court issued an important decision with wide-ranging implications for depositary institutions.  In the case of Troy Bank and Trust Co. v. The Citizens Bank, 2014 WL 4851511 (Ala. 2014), the Court held that a bank that "under-encodes" a check is strictly liable for any loss caused by such an action under the Uniform Commercial Code.  

Earned Sick Time For Employees

In November 2014, Massachusetts voters approved a ballot question that requires all private sector employers to provide employees with up to 40 hours of sick leave per calendar year. Under the new law, which goes into effect July 1, 2015, employers of 11 or more employees must provide paid sick leave for employees. Employers having less than 11 employees must provide unpaid sick leave for employees. This law applies to full-time, part-time and temporary employees performing work for compensation.

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