Boston Business Litigation Blog

Massachusetts peer review privilege does not apply in federal cases alleging health care billing fraud

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A magistrate judge for the U.S. District Court for the District of Massachusetts recently held the peer review privilege did not apply in a case alleging health care billing fraud. In Wollman v. Massachusetts General Hospital, Dr. Lisa Wollman, a former anesthesiologist at Massachusetts General Hospital ("MGH"), brought a qui tam action under the False Claims Act and the Massachusetts False Claims Act, alleging that MGH and its physicians organization fraudulently billed Medicare and Medicaid for "overlapping and concurrent surgeries that required two patients to be under anesthesia at the same time." In addition to alleging these overlapping surgeries were fraudulent billing practices, Dr. Wollman alleged they endangered patients by placing them under anesthesia for longer than necessary, violated informed consent regulations, violated recording keeping regulations, and caused the government to pay for teaching physicians who were not present during key parts of the surgeries.

9th Circuit to Judge Regulation of Mandatory Employment Arbitration

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On December 7, the Ninth Circuit Court of Appeals is scheduled to hear oral argument in a case of particular relevance to employers who use arbitration to resolve disputes with employees. The case, Chamber of Commerce of the U.S. v. Becerra, considers whether states can prevent employers from conditioning an offer of employment or receipt of employment benefits on an employee's agreement to arbitrate (rather than litigate) any future disputes with the company. In 2019, the State of California passed Assembly Bill 51 (AB 51)-a law that would have done just that. But a California federal judge blocked the law before it could go into effect, reasoning that the Federal Arbitration Act's (FAA's) pro-arbitration policy takes precedence over (or "preempts") the state law. The State appealed to the Ninth Circuit.

A Zero is Something: The Massachusetts Appeals Court Concludes that a Divorce Judgment Provided for a "Zero-Dollar Alimony Award"

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People often think about the number zero as only nothing, when in fact, the invention of the humble zero constantly forces us to realize that the absence of something is a thing in and of itself.  In a recent decision, the Massachusetts Appeals Court changed the durational limits of an alimony award based on an implicit "zero-dollar alimony award" in the separation agreement, once again proving that when it comes to zero, nothing absolutely matters. 

Because The Montreal Convention Preempts All Local Claims That Fall Within Its Scope

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The liability of aircraft carriers is governed by the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45 (2000) (the "Montreal Convention"), a multilateral treaty to which the United States is a signatory.  The Montreal Convention superseded the Warsaw Convention of 1934 and some of the provisions are essentially the same in both conventions. 

Eviction & Foreclosure Moratorium Expires Amid Rising COVID Infections

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On April 20, 2020, Massachusetts Governor Baker signed into law An Act Providing for a Moratorium on Evictions and Foreclosures During the COVID-19 Emergency.  The moratorium was originally set to expire on August 18, 2020, but Governor Baker had previously extended the moratorium until October 17, 2020.  While Governor Baker had the option to extend the moratorium further, he declined to do so, and the moratorium expired at midnight on October 17, 2020.

Party Who Successfully Disputed Being Party to Mortgage Cannot Claim Rights Under Disavowed Mortgage to Challenge Foreclosure

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The Massachusetts Appeals Court ("Appeals Court"), in an unpublished opinion, has held that where an alleged mortgagor has successfully argued that she is not party to a mortgage, she cannot later challenge a foreclosure of that mortgage on the grounds that the foreclosing bank allegedly violated her rights with respect to notice of the foreclosure.  21st Mortgage Corp. v. Lapham

Office of the Comptroller of the Currency Issues "True Lender" Rule

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While federal law permits national banks to transfer loans and assign mortgage loan contracts to third-party lenders, courts across the country have sometimes struggled, when loans are challenged in litigation, to determine which entity legally made the loan.   This ambiguity was problematic because national banks and third-party lenders are often subject to different laws, and the applicable law is determined by which entity is deemed to be the true lender.  Moreover, as the Office of the Comptroller of the Currency (OCC) noted, this ambiguity also discouraged banks from entering into lending contracts with third parties, thereby restricting competition and stifling innovation.  As a result, in late October 2020, the OCC issued a new rule intended to remedy the confusion and provide national banks and third-party lenders with the legal certainty necessary to enter into such agreements.  The rule goes into effect on December 29, 2020.

Can a judge grant a deviation from the durational alimony limits when a complaint for modification of alimony is filed after the presumptive alimony durational limit has already expired?

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The Appeals Court addressed this issue in the recent case, Clement v. Owens-Clement. In that case, the Husband and the Wife were married for a total of six years before they divorced in 2013. The parties' separation agreement, which was incorporated into their divorce judgment, included a merged alimony provision in which the parties waived past and present alimony, but presumptively left open the option to seek alimony in the future. 

Can a Judge Order a Party to a Divorce to Get a Job?

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In a recent decision by the Appeals Court of Massachusetts - albeit under Rule 23, so it is not considered binding precedent though it can be cited for persuasive purposes - the Court overturned a portion of a divorce judgment that required the Wife, who would be receiving alimony, to seek full-time employment as a bookkeeper and to accept any offer of employment in that specific field. The trial court's judgment, the Appeals Court reasoned, overstepped its statutory authority.

Supreme Judicial Court Holds Prescriptive Easement Does Not Amount to a Taking

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The Supreme Judicial Court ("SJC") recently held that a government taking did not occur where a town had acquired a prescriptive easement to discharge storm water through private property. In Gentili v. Town of Sturbridge, Plaintiffs commenced an action in 2015 in the Land Court seeking various declarations against the town and its rights to discharge storm water onto the Plaintiffs' property. The Land Court held the town had acquired a prescriptive easement pursuant to G.L. c. 187 § 2 to discharge the storm water on to the property.

Advantages to International Arbitration: Enforceability

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In prior posts here at FITCH, we have discussed some of the reasons that parties choose international arbitration over litigation for their cross-border disputes. Over the next few months, we will be taking a deeper dive into the advantages of international arbitration (click here for our discussion on confidentiality). One such advantage is enforceability.

Appeals Court Finds that Pre-Trial Conditions of Release and DCF Involvement are Inadequate Substitutions for the Protection of an Ch. 209A Abuse Prevent Order

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In Vera V. v. Seymour S., the Appeals Court recently considered whether it was proper for a trial judge to deny a request for an extension of an ex parte abuse prevention order pursuant to G. L. c. 209A, based on the defendant ("husband") being subject to certain pretrial release conditions that had been ordered in the related criminal case and the subject of a Department of Children and Families ("DCF") investigation. The criminal case involved allegations of physical abuse of the plaintiff ("wife") by the husband while the wife was attempting to breastfeed the parties' newborn. The pretrial release conditions in that case included a "no abuse" order that could have resulted in the husband's being held without bail if he violated them.

Prior Public Use Doctrine Does Not Apply to Public Lands Sold or Leased for

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The Massachusetts Supreme Judicial Court ("SJC") has held that the Prior Public Use Doctrine, which operates to prevent public lands acquired for a particular use from being diverted to another inconsistent public use without explicit legislative authorization, does not apply to public land diverted to an inconsistent private use in Town of Sudbury v. MBTA et al.

Court holds that Uber cannot be held vicariously liable for the alleged sexual misconduct of its driver

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Under the theory of respondeat superior, an employer may be vicariously liable for the torts of its employee. In order to prevail on a claim of vicarious liability, the plaintiff must show two elements: (1) that an employer-employee relationship exists and (2) that the alleged conduct occurred within the course and the scope of employment.

Discovering "Hidden" Assets in a Divorce

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It is natural for a couple going through a contentious divorce to lack trust in each other. Accordingly, one of the first questions that a divorcing party will often ask their attorney is how they can be sure that their soon-to-be-ex-spouse has fully and fairly disclosed all of his or her property, and that he or she has not engaged in "divorce planning" - that is, moving or concealing assets that could be considered marital property so that they will not have to be shared with the other spouse upon divorce.

When Three's a Crowd: Intervention under Federal Rule of Civil Procedure 24

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In T-Mobile Northeast LLC v. Town of Barnstable, et. al., the First Circuit affirmed the decision of the United States District Court for the District of Massachusetts to deny local residents' motion for leave to intervene.

Business Interruption Coverage Class Action: Update on Rinnigade Art Works v. Hartford Financial Group

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Back in June, Massachusetts saw the filing of the first suit seeking class action status challenging an insurance company's denial of coverage for COVID-19 related business losses, Rinnigade Art Works v. Hartford Financial Group.

In Which Cases is an Alimony Award Based on Need?

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In a recent Rule 23 decision, the Appeals Court of Massachusetts provided further clarification relating to the Young v. Young decision and how a judge is expected to calculate alimony. In a nutshell, if a payor's "ability to pay" is not an issue, then the amount of alimony will be determined by the recipient's reasonable need. If the parties do not have sufficient income to maintain the lifestyle that both spouses enjoyed during the marriage, then the statutory alimony percentages will be used to calculate the amount of a support order.

Tenth Circuits Confirms $36.1 Million International Arbitration Award

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The Tenth Circuit confirmed a $36.1 million international arbitration award in a dispute between Bolivian company Compañia de Inversiones Mercantiles S.A. ("CIMSA") and a group of Mexican companies known as Grupo Cementos de Chihuahua, S.A.B. de C.V. and GCC Latinoamerica, S.A. de C.V. (collectively "GCC") relating to a right of first refusal for certain shares. In doing so, the Court reaffirmed Federal policy in favor of arbitral dispute resolution, particularly with respect to international disputes.

Massachusetts Federal Court Rules on Employee Status Under the Fair Labor Standards Act

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In a decision recently issued in the case of Maldonado et al. v. Cultural Care, Inc. et al., a group of "local childcare consultants" ("LCCs") brought a class action suit against Cultural Care, a company that places foreign au pairs with host families located in the United States. The plaintiffs alleged that Cultural Care and its officers violated the Fair Labor Standards Act ("FLSA") by misclassifying them as independent contractors and paying them less than the minimum wage required by both the FLSA and state law in Massachusetts, New York, and California. Cultural Care moved to dismiss the plaintiffs' claims based on a lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted.

Advantages to International Arbitration: Confidentiality

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In prior posts here at FITCH, we have discussed some of the reasons that parties choose international arbitration over litigation for their cross-border disputes. Over the next few months, we will be taking a deeper dive into the advantages of international arbitration. One such advantage is confidentiality.

Can a judge order that a retirement account be divided equally between the parties as of the date of their divorce if one party made contributions to that account after the parties separated but before the date of divorce?

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This issue was examined by the Appeals Court in the recent case, Hoy v. Hoy. In that case, the wife was the primary wage earner during the parties' long-term marriage and the trial judge in the divorce found that the husband was in need of alimony. However, because the wife's income was substantially reduced by the time of the trial, the judge did not order her to pay alimony. Instead, the judge noted that the issue of alimony could be brought back before the Court and modified at a later date and ordered the wife to provide the husband with notice if her income increased by more than 5%. Additionally. the judge awarded the husband slightly more than half of the marital assets, including half of the wife's retirement accounts accrued over length of the marriage and more than half of the proceeds of the sale of the marital home.

Does The Seller's Death Terminate A Real Estate Listing Agreement?

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In a case of first impression, Newton Centre Realty, Inc. v. David R. Jaffe (June 23, 2020), the Appeals Court recently decided that the seller's death terminates a real estate listing agreement and concluded that the broker was not entitled to recover contract damages from the seller's estate.

Clarifying the Clear and Unequivocal Standard of Contempt in the Probate and Family Court

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In a recent Rule 23 decision, the Appeals Court of Massachusetts upheld a finding of contempt against a father who, without the mother's consent, registered the children for soccer.

"Last Mile" Delivery Drivers Exempt from Federal Arbitration Act

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The United States Court of Appeals for the First Circuit has held that, despite never crossing state lines in the course of their duties, "last mile" delivery drivers qualify for the Federal Arbitration Act's ("FAA") exemption for transportation workers due to their sufficient engagement in interstate commerce. Accordingly, the FAA did not apply to the Plaintiff's contract, state law applied instead, and the Plaintiff's claims could proceed in court rather than via arbitration. Waithaka v. Amazon.com, Inc. et al.

The Use of International Arbitration for Banking and Finance Disputes: Tailoring the Arbitration Clause

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As we have pointed out before, the use of international arbitration for banking and finance disputes continues to grow. The International Chamber of Commerce also recently came out with a report discussing this growing trend for financing disputes.

Are Non-Disparagement Clauses Constitutional?

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Unfortunately, the emotionally charged circumstances of divorce and custody cases can create very difficult conditions for the parties and their children. On occasion, one or both parties will engage in disparaging behavior - calling the other party names in public and to third parties, making insulting comments on social media, and spreading disinformation within the community about the case and the other party.

Payment of Wages and Earned Vacation Not Due Until Actual Date of Discharge, Even If Employee Stopped Working Earlier

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In Knous v. Broadridge Financial Solutions, Inc., the United States District Court for the District Court of Massachusetts awarded summary judgment to an employer on the employee's claims of unpaid wages and earned vacation at the time of discharge.

As a result of restructuring, the employer decided to terminate the employee. The employer informed the employee of his termination in a meeting on May 17, 2019, during which the employer "instructed" the employee to return company property, stop working, and vacate the site. The employer also specifically informed the employee that he would still receive wages and benefits as of May 24, 2019, and also presented the employee with a severance agreement that defined his date of termination as May 24, 2019.

District Court Finds in Favor of T-Mobile in Zoning Dispute

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In the recent Memorandum and Order issued in the case T-Mobile Northeast LLC v. The Town of Barnstable, the Massachusetts District Court held that the Town of Barnstable Planning Board ("the Planning Board") had violated the Telecommunications Act of 1996 ("the TCA") when it denied T-Mobile's request for a special permit and regulatory agreement that would allow T-Mobile to install and operate wireless equipment in a church steeple for the purpose of improving local cell phone service coverage. The dispute arose after the town had issued T-Mobile a building permit and after the majority of the construction on T-Mobile's proposed site had already been completed, at which time citizens of Barnstable claimed that the proposed site fell within a geographic area of Cape Cod that is subject to heightened regulatory scrutiny. After several hearings and consideration of evidence submitted by T-Mobile, the Planning Board denied T-Mobile's request.

The Use of International Arbitration for Banking and Finance Disputes: Tailoring the Arbitration Clause

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As we have pointed out before, the use of international arbitration for banking and finance disputes continues to grow. The International Chamber of Commerce also recently came out with a report discussing this growing trend for financing disputes.

A Party Cannot Be Both Party and Arbitrator: First Circuit Finds Arbitration Clause Unconscionable

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The First Circuit Court of Appeals recently found an agreement's arbitration clause unconscionable where one party was given almost unfettered control over the selection of the arbitrators. In Trout v. Organización Mundial de Boxeo, Inc., plaintiff Austin Trout ("Trout"), a professional boxer, claimed the defendant World Boxing Organization's ("WBO") decision to move him from a weight class cost him to opportunity to pursue a world championship in that class. He brought claims under the Muhammad Ali Boxing Reform Act, as well as breach of contract, fraud, and negligence claims.

First Circuit Affirms Dismissal of Class Action Against Nestlé, Mars, and Hershey for Non-Disclosure of Potential Child and Slave Labor Issues

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In Tomasella v. Nestlé, a politically charged case involving three of the United States' most prominent chocolate manufacturers, the First Circuit recently affirmed dismissal of a putative class action against Nestlé USA Inc., Mars, Inc., and the Hershey Company. The plaintiff in that case, Danell Tomasella, alleged that the chocolate manufacturers violated the Massachusetts Consumer Protection Act that prohibits unfair or deceptive trade practices (Chapter 93A) by failing to disclose on their packaging that child and slave labor abuses likely exist in their cocoa bean supply chains. The plaintiff also alleged that the chocolate manufacturers were unjustly enriched by such omissions.

Superior Court Holds That, Even With Advance Notice To Its Employees, An Employer May Not Avoid Its Obligations Under Sullivan v. Sleepy's LLC To Pay Separate and Additional Overtime

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In the recent Superior Court case of Martinez v. Burlington Motor Sports, Inc., et al., a defendant auto dealership moved to dismiss a commission-based employee's claim for overtime wages pursuant to G. L. c. 151, §§ 1A and 1B, arguing that the Massachusetts Supreme Judicial Court's (SJC) 2019 ruling in Sullivan v. Sleepy's LLC did not apply to the case. See Fitch's blog post on the Sleepy's decision here. The Sleepy's decision stands for the proposition that an employee paid on commission is entitled to separate and additional wages for minimum wage and to overtime and Sunday pay.

Appeals Court Rules that Settlement To Which Abutter Was Not a Party Does Not Deprive Zoning Board of Appeals of Jurisdiction Over Abutter's Appeal

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In Stevens v. Zoning Board of Appeals of Bourne, et. al., the Massachusetts Appeals Court upheld the Bourne Board of Selectman's decision to reinstate a cease and desist order against Plaintiff Lighthouse Realty Trust despite a Land Court settlement agreement between the Plaintiff and the Town.

U.S. Supreme Court Allows Non-Signatories to Enforce Arbitration Agreements

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In GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, the United States Supreme Court was presented with the question whether domestic equitable estoppel doctrines that allow a non-signatory to an arbitration agreement to compel arbitration in disputes arising under such agreement conflict with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, more commonly known as the New York Convention. The Supreme Court unanimously found no conflict, paving the way for non-signatories to agreements containing international arbitration clauses to compel arbitration using domestic doctrines of equitable estoppel.

First Circuit Affirms Dismissal of Class Action Claims Against General Electric by Victims of Nuclear Disaster Due to Availability of Adequate Alternative Japanese Forum

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In March 2011, a massive 9.0 magnitude earthquake occurred just off the coast of Japan and triggered a 45-foot tsunami, which in turn breached the seawall and resulted in a series of explosions and a widescale nuclear disaster at the Fukushima Daiichi Nuclear Power Plant (the "FNPP") in Japan. Shinya Imamura and several other individuals and business entities from the surrounding area who suffered property damage and/or economic harm as a result of the disaster filed a class action lawsuit, against General Electric Company ("GE"), Imamura v. General Electric Co., in the U.S. District Court for the District of Massachusetts. They sought compensatory and punitive damages from GE, based on their assertions that GE negligently designed the nuclear reactors and safety mechanisms at the FNPP and was at least partially responsible for the nuclear disaster GE's corporate headquarters and principal place of business in Boston, Massachusetts provided basis for jurisdiction over the lawsuit in the Massachusetts federal court.

Appeals Court Vacates Custody Award Due to Domestic Abuse Allegations

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In the recent unpublished Memorandum and Order Pursuant to Rule 1:28, Manning v. Manning, the Massachusetts Appeals Court overturned a custody judgment from the Probate and Family Court awarding a couple shared legal and physical custody of their two children due to the lower court judge's failure to make required findings of fact regarding the wife's allegations of domestic abuse by the husband. At the time of their divorce trial, the wife testified that her husband had abused her on numerous occasions during the marriage, including punching her, throwing objects at her, and grabbing her by the neck in front of their child. The trial judge credited the wife's testimony, writing in the judgment that the husband "physically battered and assaulted the [w]ife throughout the entire tenure of the marriage." Despite this finding, however, the judge ordered that the parties should have shared custody of their children, with each parent exercising parenting time for one week at a time.

Circuits Split on Benign Language Exception for Debt Collection Envelopes

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The United States Court of Appeals for the Seventh Circuit has split from holdings by the Fifth and Eighth Circuits in holding that the Fair Debt Collection Practices Act ("FDCPA") does not contain a "benign language" exception to the requirement that the envelope for a debt collection letter contain no language other than the debt collector's address. Preston v. Midland Credit Management, Inc.

First Circuit Upholds Securities and Wire Fraud Convictions Against Former State Street Vice-President Ross

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In United States v. McLellan, the First Circuit upheld securities and wire fraud convictions against former State Street Vice-President and head of the Department of Transitional Services Ross McLellan ("McLellan"). McLellan was convicted by a jury in the United States District Court for the District of Massachusetts on charges of securities fraud, wire fraud, and conspiracy to commit securities and wire fraud. During his tenure as head of the transitional management group, McLellan served as the overseer of State Street's transition management program which assisted large institutional investors in restructuring their portfolios as they transitioned from one asset manager to another. At trial, the prosecution presented evidence that McLellan designed a scheme to promise low commissions to potential clients, then embedded large, hidden commissions into the price of the securities when reporting the prices to his clients.

Business Interruption Coverage Class Action

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A case recently filed with the United States District Court for the District of Massachusetts, Rinnigade Art Works v. Hartford Financial Group, is the first suit in Massachusetts seeking class action status in challenging an insurance company's denial of coverage for COVID-19 related business losses.

G.L. Ch. 209A Restraining Orders Must be Based on a Reasonable Fear of Abuse.

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For a plaintiff to obtain an abuse prevention order, colloquially known as a "restraining order," against a defendant, the issuing court must make a finding of abuse. For the purposes of 209A, abuse is defined as a) attempting to cause or causing physical harm; b) placing another in fear of imminent serious physical harm; or c) causing another to engage involuntarily in sexual relations. In cases where no attempted or actual physical contact has occurred, the question is generally whether the defendant placed the plaintiff in fear of imminent serious physical harm. Past cases have established that such fear must be reasonable in light of the totality of the circumstances of the parties' relationship.

Massachusetts Appeals Court Rejects Plaintiff-Borrowers' Claim that Obsolete Mortgage Statute Limits Mortgagee's Ability to Foreclose on Properties in Default

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The Massachusetts obsolete mortgage statute, G.L. c. 260, § 33, provides, in relevant part, that "power of sale in any mortgage of real estate shall not be exercised . . . nor proceeding begun for foreclosure of any such mortgage after the expiration of . . . 5 years from the expiration of the term or from the maturity date." The purpose of the statute is to create a date certain by which an old mortgage is deemed discharged as a matter of law in order to provide certainty for title examiners and thereby remove impediments to the purchase and sale of real estate subject to mortgages for which a discharge was never filed in the applicable Registry of Deeds.

Land Court Holds That Family Has Successfully Asserted Adverse Possession Claim Over Disputed Land.

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In the recent case of Bliss v. Boston Clear Water Company, LLC (decided April 21, 2020), the Essex Land Court found that the plaintiff, Mary Bliss, had successfully proved a claim to ownership of property on the grounds of adverse possession because her family had been using the property adversely, openly, notoriously, exclusively, and continuously for a period spanning nearly thirty years. The Bliss family's use of the disputed land began in 1985 when Mary's husband, Gerald Bliss, started tending to the grounds of property that was owned at the time by his next-door neighbor. Specifically, the Bliss family paved a portion of the neighboring land, installed a fence around a well, constructed a pitcher's mound and a hockey net, and even went so far as to hire a professional landscaping company to conduct routine maintenance on the land. In addition, the Bliss family parked their cars on the land and allowed their guests to park there, and the family's children played openly on the property.

First Circuit Upheld District Court's Preliminary Injunction Applying Delaware Law Based on Massachusetts's Choice-of-Law Framework

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Recently, in NuVasive, Inc. v. Day, the United States Court of Appeals for the First Circuit upheld the decision of the United States District Court for the District of Massachusetts to apply Delaware law and grant an employer a preliminary injunction against a former employee related to a nonsolicitation clause.

Are Non-Disparagement Clauses Constitutional?

Photo of Carlos A. Maycotte

Unfortunately, the emotionally charged circumstances of divorce and custody cases can create very difficult conditions for the parties and their children. On occasion, one or both parties will engage in disparaging behavior - calling the other party names in public and to third parties, making insulting comments on social media, and spreading disinformation within the community about the case and the other party.

Co-Parenting During the COVID-19 Crisis

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In his open letter dated March 24, 2020, Chief Justice Casey indicated that it is important, during the current Covid-19 crisis and corresponding Stay-at-Home Advisory, for children to spend time with both of their parents. While this provided welcome clarity for upcoming parenting exchanges, it also created an opportunity - especially for parties operating under a parenting schedule by way of a temporary order and in the midst of contested litigation concerning custody issues - to put contested litigation issues aside and create a parenting arrangement (perhaps even a temporary, equal parenting) that more effectively deals with the reality of school/child-care closures and the requirements of working remotely (for both parents and students).

Appeals Court holds no "easement by necessity" for maintenance of land obtained by adverse possession.

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In the recent decision, McDonald v. Andrade, the Massachusetts Appeals Court reversed a trial court decision, awarding an easement to a Plaintiff who had - in the same lawsuit - obtained the land to which the easement pertained by adverse possession.

Guidelines Published for Video-Conferencing in International Litigation

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The Hague Conference on Private International Law (the "HCCH") has just published its Guide to Good Practice on the use of video-conferencing technology in the taking of evidence (the "Guide") pursuant to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the "Convention"). Though the HCCH undertook to investigate such best practices long before the advent of COVID-19, its publication is particularly timely in light of the pandemic.

SJC Holds Consent-to-Settle Clauses in Professional Liability Insurance Policies Valid

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The Supreme Judicial Court recently issued a decision that confirms the legality of consent-to-settle clauses in professional liability insurance policies. In Rawan v. Continental Casualty Company, the SJC held that the refusal of an insured party to settle an underlying tort claim limits the insurance company's exposure to claims of unfair claim settlement practices as long as the company operates in good faith.

Pivotal Questions Concerning Coronavirus and Performance Under Contracts with Force Majeure Clauses

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It is no exaggeration to state that the coronavirus (COVID-19) pandemic has been the largest disruptor to businesses this year. Productivity has slowed as co-workers self-quarantine to prevent the risk of exposure to the virus, and offices across the nation are closed as a way of slowing the spread of the disease. Naturally, one question that arises out of these events is whether businesses are expected to perform under their contracts or whether they are excused from performance in light of the current crisis. The answer to that question may rely on the heretofore rarely used force majeure clauses contained in their contracts.

What Happens to GAL Investigations During the Coronavirus Pandemic

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The COVID-19 public health emergency has ground many activities to a halt, including the vast majority of matters at Probate and Family Courts across the Commonwealth of Massachusetts. Although the impact of court closures has been felt most strongly in the paucity of hearings, other departments, like drug testing, lawyer of the day programs, conciliation and mediation sessions, have also been impacted by the requirements of state and local orders and advisories. 

Issuance of 1099-C Does Not Void Equitable Lien on Foreclosure Surplus

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The United States District Court for the District of Massachusetts, in a matter of first impression in the First Circuit, has joined the majority of courts to find that a junior lienholder's issuance of a 1099-C to a mortgagor following foreclosure does not extinguish the junior lienholder's claim to excess proceeds from a senior lienholder's foreclosure. Wells Fargo Bank, N.A and Orlans PC, Plaintiffs, v. Thomas Fraze et al., Defendants.