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August 2015 Archives

International Jurisdiction and the FIFA Indictment

Shortly after New York Attorney General Loretta Lynch's 47-count indictment involving FIFA (Fédération Internationale de Football Association) was announced in May, legal insiders and outsiders alike were asking how the U.S. was able to coordinate the arrests of foreign citizens in foreign countries for violating U.S. laws. The question--one of jurisdiction--is likely to be examined closely as the FIFA case plays out in federal district court.  At the center of the indictment is the claim that FIFA was engaged in a "pattern of racketeering activity," which provides the backbone for the charges under the Racketeer Influenced and Corrupt Organizations Act ("RICO").   

Getting To Arbitration

Massachusetts law recognizes arbitration as "a remedy created by statute which limits its availability to the parties to an arbitration agreement."  Rae F. Gill, P.C. v. DiGiovanni, 34 Mass.App.Ct. 498, 503 (1993).  In other words, a statute - the Massachusetts Arbitration Act (G.L. c. 251) ("MAA") - creates the ability for parties to settle their legal disputes through arbitration, but those parties also must have a prior agreement to do so.  But what happens when one party refuses to arbitrate? 

As a Trustee, Can You Partition Real Estate Owned by a Trust?

Trustees sometimes face beneficiaries disagreeing about how to maintain real estate owned by a trust, such as a family vacation home.  But does a trustee have standing to bring a partition action to sell Massachusetts real estate?  Likely not.  

Land Court Orders Removal Of Structures Beyond Scope Of Easement

An easement "creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement." Patterson v. Paul, 448 Mass. 658, 663 (2007).  In other words, a property owner can grant another party the right to use his property in certain ways - such as the right to enter and walk through it - without giving up ownership of the property.  Disputes can arise, however, when either party misunderstands or abuses the rights involved. 

It's Not Over Till It's Over: Assets Earned After Service Of Divorce Complaint Are Included In The "Marital Estate"

From a legal perspective, getting hitched in Massachusetts is fairly quick and simple, requiring little more than a valid marriage license and a proper officiant.  It is not even necessary to be wed by a clergy member or Justice of the Peace, as anyone over the age of 18 in reasonably good character can receive a one-day designation to solemnize the marriage.  Divorce, on the other hand, is rarely if ever as easy or efficient, and contested proceedings take months and even years to finalize.

Supreme Judicial Court Rules That Real Estate Salespersons Can Continue To Be Defined As Independent Contractors

The Supreme Judicial Court has recently affirmed in Monell v. Boston Pads, LLC, 471 Mass. 566 (2015) that real estate brokerage companies can continue to classify real estate salespersons as independent contractors and are not subject to the Massachusetts independent contractor statute.  

Gender-Based Discrimination Claim Remanded For Determination By Jury

Even a seemingly objective performance evaluation process may not insulate an employer from claims by an employee that their termination was discriminatory. In a 2013 unpublished decision, Rochat v. L.E.K. Consulting, LLC, 83 Mass. App. Ct. 1108 (2013), the Appeals Court reviewed a Superior Court decision to dismiss gender discrimination claims made by a terminated employee against her former employer. The terminated employee, a second-year consultant with a previously promising career with the firm, earned a negative performance review from the supervisor of a project she worked on toward the end of her second year. That review led, ultimately, to the termination of her employment. Until the last few months of her employment, the employee had generally positive reviews every six months during her tenure with the company and consistently received praise for her work ethic and enthusiastic attitude. She claimed that the decision to terminate her was the product of gender bias.

First Circuit Examines Compliance Requirements Under Bank Secrecy Act

Federal law - specifically a section of the Bank Secrecy Act (31 U.S.C. § 5318(g)) (the "Act") and related regulations - requires financial institutions both "to report any suspicious transaction relevant to a possible violation of law or regulation" and forbids those institutions, government officials, and others from "notify[ing] any person involved in the transaction that the transaction has been reported."  31 U.S.C. § 5318(g).  

Fifth Circuit Court of Appeals Reaffirms MERS System Under Texas Law

The United States Court of Appeals for the 5th Circuit has held that recording Mortgage Electronic Registration Systems, Inc. ("MERS") as the holder or beneficiary of a mortgage comports with Texas law.  Harris County Texas, et al. v. MERSCORP Inc., et al., No. 14-10392, 2015 WL 3937927 (5th Cir. June 26, 2015).  This adds to the Court's prior holding in Welborn v. Bank of N.Y. Mellon Corp., 557 Fed.Appx. 383 (5th Cir. 2014), treated in this blog on April 11, 2014, that certain government entities could not recover from MERS on the basis of federal RICO statutes.

Appeals Court Clarifies Plaintiffs' Pleading Burden In G.L. c. 93A, § 11 "Center Of Gravity" Cases

Mass. Gen. Laws ch. 93A § 11 allows corporate plaintiffs to recover up to treble damages and attorneys fees from defendants who engage in unfair or deceptive trade practices. To invoke this powerful statute, however, the plaintiff must show that "the center of gravity of the circumstances that give rise to the claim is primarily and substantially within the Commonwealth." Kuwaiti Danish Comput. Co. v. Digital Equip. Corp., 438 Mass. 459, 473 (2003). A court will determine whether a plaintiff has done so "after making findings of fact, and after considering those findings in the context of the entire [Chapter 93A] § 11 claim."  Id. 

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