Boston Business Litigation Blog

"I was laid off --- Will the judge attribute income to me when determining child support?"

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The Massachusetts Appeals Court recently addressed this issue in Milesv. Beusch, Docket 17-P-1511 (Mass. App. Ct. January 24, 2019) (Memorandum and Order Pursuant to Rule 1:28). In that case, the former Husband appealed the trial court's decision to attribute income to him for the purpose of calculating child support. 

What happens when a divorcing spouse actively misrepresents his or her income in the context of a child support or alimony analysis or tries to hide assets?

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A recent Appeals Court case addressed that issue, affirming the trial court's judgment that found that the husband's misrepresentations about his income were egregious enough that the trial judge's use of discretion to attribute and impute income to the husband was appropriate, and that the assets that he had tried to divert were subject to equitable division.

Fitch Represents International Law Professors at the Supreme Court

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Fitch attorney Jared Hubbard was at the Supreme Court this past November on behalf of a group of international law professors-including George Bermann of Columbia Law School and David Stewart of Georgetown Law School-who appeared as amici curiae (friends of the court) in the case of Sudan v. Harrison, Dkt. 16-1094.

Trustees of Non-Massachusetts Trusts May be Subject to Jurisdiction of Massachusetts Courts for Some Claims Related to the Administration of the Trust

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Under the Massachusetts Uniform Trust Code, the Probate Court generally cannot "entertain proceedings" concerning the administration of trusts "registered or having [their] principal place of administration in another state." But does that mean a Massachusetts court cannot hear breach of fiduciary duty and other related claims against a Massachusetts-based trustee where the situs of the trust is another state? The Superior Court considered this question in Curran v. Berkshire Hills Bancorp, No. 1784CV03580-BLS2, 2018 WL 3431892 (Mass. Super. Ct. May 24, 2018), when the beneficiaries of a Vermont trust brought claims of breach of fiduciary duty and violation of Chapter 93A (the Massachusetts consumer protection statute) against the trustee, a Massachusetts bank. Over the bank's objections, the court allowed the suit to proceed, drawing a distinction between actions seeking an order instructing or compelling a trustee to act in a certain way concerning the ongoing management of trust assets, on the one hand, and actions seeking damages under a tort-based theory for the trustee's prior conduct concerning the trust, on the other, as in the present case. Similarly, the court found that, since the beneficiaries brought claims against the trustee itself rather than claims regarding the status or disposition of trust assets (such as for an accounting or other relief concerning ongoing administration of the trust), asserting jurisdiction over those claims in Massachusetts would not raise the potential to disrupt or disrespect any pending Vermont proceedings concerning the administration of the trust.

An Employer Cannot Retaliate Against an Employee for Filing a Lawsuit for a Workplace Injury

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An employee who filed a workers' compensation claim for a workplace injury while she was a temporary worker may file a negligence lawsuit against the company even though the company became her employer after she received workers compensation benefits for the injury from the temp agency's insurer, and the law prevents the employer company from taking retaliatory action against her for doing so. This principle was recently clarified by the Massachusetts Appeals Court, in Bermudez v. Dielectrics.

Condominium Boards and Fiduciary Duty: To Whom Does the Duty Extend?

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Do you know what fiduciary duties your condominium board owes? And to whom the duty is owed?

First, what, exactly, is a fiduciary duty? The nature of fiduciary duties depends on the nature of the relationship between the parties but, at its simplest, it is a duty of loyalty and good faith. It is an obligation to act for the benefit of another. It is a well-established general principle that an organization's board has a fiduciary duty to the organization.

Consistent with this general principle, members (or trustees) of a condominium's board also have certain fiduciary duties. But, you may be asking, to whom is that fiduciary duty owed? The answer is surprisingly clear: In Massachusetts, members of condominium boards owe a fiduciary duty to the condominium association (or trust), not to any individual condominium owner. See, e.g., Cigal v. Leader Dev. Corp., 408 Mass. 212, 219 (1990).

Can I relocate with my child after divorce?

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If you're a parent of a minor child of divorce in Massachusetts, can you relocate to a different state or country with your child (an issue the courts call "removal")?

Assuming no negotiated agreement to relocate with your co-parent (a preferred outcome in resolving these highly contentious disputes), and to help you answer this question in the context of contested litigation, Fitch family law attorneys will walk you through a judge's required functional analysis that is based on current Massachusetts law. It's a complicated process of gathering the facts of your particular case and connecting them to the correct legal standard.

Commission Payments Are "Compensation" Under the Massachusetts Wage Act

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The Massachusetts Wage Act, M. G. L. c. 149, § 148, governs how and when an employee's wages must be paid and provides that an employer who fails to comply with the Wage Act may be subject to treble damages and be ordered to pay the attorneys' fees of the employee who has to turn to the courts to enforce their rights under the Wage Act. Commission payments are considered "wages" and, therefore, are governed by the Wage Act. For a commission to be "wages," the Wage Act provides that the amount of the commission must be "definitely determined" and "due and payable to [the] employee." Commission compensation has been "definitely determined" when the amount of the compensation due is "arithmetically determinable." Commission compensation is "due and payable" to the employee when "dependent contingencies have been met and it is thus owed to the employee." Practically speaking, that means that the employee (or the court considering whether an employer has violated the Wage Act by failing to pay a commission) must be able to calculate how much commission was owed to the employee and that all of the conditions that must be met for the commission to be payable must have been met.

Property Inspections Are Not Debt Collection Under FDCPA

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The United States Court of Appeals for the Seventh Circuit has held that inspections of properties encumbered by defaulted mortgages, even where the property inspector left a hang tag requesting the homeowner contact the mortgage servicer, is not debt collection under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Schlaf v. Safeguard Property, LLC, No. 17-2811, 899 F.3d 459 (7th Cir. 2018).

Texas Judge Dismisses Suit Against ICDR

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A judge of the U.S. District Court for the Southern District of Texas has dismissed a case against the International Centre for Dispute Resolution on the basis of arbitral immunity. The holding in Wartsila North America, Inc., et al v. International Centre for Dispute Resolution, et al., 2018 WL 3870015 (S.D. Tex. 2018), C.A. No. H-18-1531, was based in large part on precedent from the First Circuit.

Does ROTC Participation Create an Emancipating Event?

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In a recent decision by the Massachusetts Court of Appeals, the concept of a child's emancipation was at issue. In Bobblis v. Costa (https://www.mass.gov/files/documents/2018/10/18/17P0557.pdf), the court ruled that enrollment in ROTC does not constitute emancipation pursuant to the parties' separation agreement, as joining an ROTC program is not considered entry into the military for purposes of emancipation.

How does my pension get divided during divorce?

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Part II of this blog post focuses on how pension plans are divided during divorce. You can read Part I on our site.

Pension plans are different than other assets divided during divorce because we are trying to calculate the present value of a future benefit (a benefit that will be received but has not yet been received). The process that goes into dividing a pension during divorce can be complicated. As a result, we have broken down each factor of the process to first show in a segregated way how a pension plan gets divided during divorce. We then show in an integrated way how the pension plan's disparate factors connect to complete the whole of the process of dividing a pension during divorce. The attorneys at Fitch have the deepest respect for the enormity of time, effort and dedication it takes for clients to accumulate a pension and Fitch attorneys do their very best to provide detailed information, knowledge and transparency when it comes to valuing and dividing a pension plan during divorce. The following factors are used to calculate the present value of a pension plan:

Massachusetts Court Finds Bank Not Liable for IOLTA Scam Loss

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The Business Litigation Session of the Massachusetts Superior Court has joined other courts in holding that a bank is not liable to its customer for wiring money to a foreign account at the customer's instruction. The Plaintiff, Sarrouf Law LLP ("Sarrouf"), alleged negligence and breach of the California Uniform Commercial Code, but the Court found that the UCC expressly displaced common law and that the bank's conduct comported with the UCC's requirements. Sarrouf Law LLP v. First Republic Bank, No. SUCV2016-03069-BLS1 (Mass.Super. Aug. 2, 2018).

Seeking Special Findings of Fact Regarding Special Immigrant Juvenile Status (SIJS) in the Probate and Family Court

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Congress created the classification of "special immigrant juvenile" in the Immigration Act of 1990, providing that a certain percentage of immigrant juveniles would be allowed to petition for lawful U.S. permanent residency (i.e. "Green Card") if they met specific requirements. 8 U.S.C. § 1101 (a) (27) (J). In 2008, Congress passed the William Wilberforce Trafficking Victims Protection Reauthorization Act ("TVPRA"), which amended and clarified SIJS requirements.

Emails and Agreement for Judgment Can Satisfy Statute of Frauds

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Many consumers and corporate executives alike believe that in order to have a contract that a court will honor, a prospective litigant must produce a written contract signed by both parties to the agreement. In fact, oral agreements are often enforceable, but Massachusetts law provides through the colorfully-named "Statute of Frauds" that certain categories of contracts must be in writing to be enforceable. Mass. Gen. Laws ch. 259, §1 provides several categories of contracts that can only be enforced by way of a civil action if there is a written agreement "signed by the party [or an agent of the party] to be charged therewith," including agreements for the sale of land and other real estate, and contracts that cannot be performed within one year.

Seeking Special Findings of Fact Regarding Special Immigrant Juvenile Status (SIJS) in the Probate and Family Court

Photo of Lacey Brantley

Congress created the classification of "special immigrant juvenile" in the Immigration Act of 1990, providing that a certain percentage of immigrant juveniles would be allowed to petition for lawful U.S. permanent residency (i.e. "Green Card") if they met specific requirements. 8 U.S.C. § 1101 (a) (27) (J). In 2008, Congress passed the William Wilberforce Trafficking Victims Protection Reauthorization Act ("TVPRA"), which amended and clarified SIJS requirements.

Neighbors and Trees; Common Disputes and How They Are Treated Under Massachusetts Law

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It has been said that "the best time to plant a tree was 20 years ago. The second best time is now." These words reflect the wisdom that few things are as beautiful and capable of enhancing the appeal of property as much as a mature tree. It is therefore not surprising that an entire body of law exists concerning tree-related disputes between neighbors.

Getting the All Clear: Court Found Law Firm's Reliance on Representation from Bank that Funds had Cleared was Unreasonable

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In Colucci, Colucci, Marcus & Flavin, P.C. v. Citizens Bank of Massachusetts, No. CV 15-13536-GAO, 2018 WL 1567605, at *1 (D. Mass. Mar. 30, 2018), the United States District Court for the District of Massachusetts awarded summary judgment to Citizens Bank of Massachusetts ("Citizens Bank") on a law firm's claim of negligent misrepresentation, finding that the law firm's reliance was unreasonable pursuant to New York law.

What are the Rule 410 Mandatory Document Disclosures?

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The Rule 410 Mandatory Self Disclosure provisions of the Supplemental Probate and Family Court Rules is one of the most basic, yet misunderstood, requirements of divorce litigants.

Jim Brooks Community Stabilization Act Fails to Pass

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Last month, the Judiciary Committee of the Massachusetts House of Representatives essentially killed any chance of the passage of the Jim Brooks Community Stabilization Act, Bill H.4142, by "referring the Act to study," a euphemism generally understood in the Massachusetts legislature to mean that a bill will languish and, eventually, fail to pass.

Third Circuit Holds FDCPA Statute of Limitations Runs from Violation, Not Discovery

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The United States Court of Appeals for the Third Circuit has split with the Fourth and Ninth Circuits and held, en banc, that civil lawsuits alleging violations of the Fair Debt Collection Practices Act("FDCPA"), 15 U.S.C. § 1692 et seq., must be filed within one year of the alleged violations, and that the statute of limitationsis not tolled until the violations are discovered by the plaintiff. Rotkiske v. Klemm, 890 F.3d 422 (3d Cir. 2018).

Supreme Court Holds That Foreign Companies Cannot Be Sued Under Alien Tort Statute

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The Supreme Court of the United States has held in a recent decision that foreign corporations that have committed human rights violations outside of the territory of the United States may not be sued in the United States federal courts under the Alien Tort Statute, 28 U.S.C. §1350. In Jesner v. Arab Bank, PLC, 138 S.Ct. 1386 (2018), the plaintiffs (and the persons on whose behalf the plaintiffs advanced claims) were foreign nationals who were allegedly injured or killed by terrorist attacks in Israel and Palestine. Plaintiffs claimed that Jordan-based Arab Bank, PLC was partly liable for those injuries and deaths because individuals and organizations that supported and funded Hamas and other alleged terrorist organizations had accounts with Arab Bank that were used to pay the families of suicide bombers. Id. at 1394.

What Is the Length of the Marriage When There Is More than One Complaint?

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The Alimony Reform Act specifies statutory limits for the duration of alimony depending on the length of the marriage. The shorter the marriage, the shorter the duration of an alimony obligation. The length of marriage is defined as the "number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support." But what happens in the event that there is more than one complaint for divorce, or complaints for support and modification? What becomes the "end date" of the marriage so that one can determine how long the marriage was and, consequently, how long the alimony obligation will last?

How Does My Pension Get Valued During Divorce?

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A pension is one of the hardest earned assets a spouse can own. Divorce professionals are acutely aware of this and take great care to apply the same kind of focus, hard work and attention to detail to value a pension as the plan owner applied to earning it. This blog will be divided into two parts. The first part will explain the nature of a defined benefit pension plan and detail the information required to properly value a pension. The second part, to be published August 13, 2018, will focus on how pension plans are divided during divorce.

When Determining Alimony, the "Length of the Marriage" May Start Before "I Do"

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The United States Census Bureau shows the median age of individuals at the time of their first marriage is becoming increasingly older for both men and women. Meanwhile, the number of unmarried individuals cohabiting with their significant others is growing. These trends may be due in some part to couples delaying the responsibilities of marriage as they focus on their careers, but here is something all couples should know: for purposes of determining the length of a marriage for an alimony award, the period of premarital cohabitation could be included regardless of whether both parties were contributing financially.

My Home Contractor Is Unresponsive And Abandoned The Project Before Completion: What Damages Can I Recover?

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Dealing with an unresponsive contractor who abandons a project before its completion is unfortunately a situation that many homeowners face. Left with an incomplete bathroom or kitchen, the homeowner has no choice but to promptly find a new contractor to complete the project, usually at a higher price. As discussed below, there are different categories of damages that a homeowner can recover.

Do Former Corporate Officers Hold the Attorney-Client Privilege Jointly with the Corporation?

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Until late 2017, the question of whether a former officer of a Massachusetts corporation has access to attorney-client privileged communications made while that officer was employed at the corporation, had not been directly addressed by Massachusetts courts.

Inadequate Petition For Grandparent Visitation Must Be Dismissed

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In a decision handed down on May 3, 2018, the Massachusetts Appeals Court reversed a Probate and Family Court Judge's ruling and held that the court must dismiss a petition for grandparent visitation "when the petition does not sufficiently allege why visitation is necessary to protect the child from significant harm." See Martinez v. Martinez-Cintron, No. 17-P-1056 (Mass. App. Ct. May 3, 2018).

The Wage Act and Equity Grants: Some Risks That Startup Should Consider

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One of the biggest challenges startups and early stage companies face is attracting and retaining talented employees. When the potential of a company outstrips its ability to pay market value salaries, compensation packages that include grants of stock or options can bridge the gap until the business has sufficient cash flow. There are many advantages to these compensation arrangements, but companies need to be aware of some of the legal pitfalls as well.

Appeals Court Confirms Neighbors' Easement Grants Right To Use of Beach in Hingham Harbor

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In a recent case, the Massachusetts Appeals Court affirmed a Land Court decision holding that plaintiffs hold easement rights to access and use a beach in Hingham Harbor close to the parties' homes. Kane v. Martel, 92 Mass. App. Ct. 1130, at *1 (2018). Litigation between the neighbors over beach rights had been ongoing for more than a decade when the Appeals Court rendered its decision on March 5, 2018, a fact representative of the often bitter and protracted nature of disputes over beach access between neighbors living on the water in Cape Cod and other Massachusetts vacation destinations.

Passive Debt Buyers are not "Debt Collectors" Under Massachusetts Fair Debt Collection Practices Act

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In an important decision for debt investors, the Supreme Judicial Court has ruled that passive debt buyers are not "debt collectors" under the Massachusetts Fair Debt Collection Practices Act ("MDCPA"). The decision, Dorrian v. LVNV Funding, LLC, can be found here.

What happens at a pre-trial conference?

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Many litigants, particularly in highly contested divorce or custody modification actions, often insist that their case will never settle, and will ultimately need to proceed to a trial. In fact, only a very small portion of such cases which are filed in the Massachusetts Probate and Family Court proceed to a trial. This is due in part to one of the most important court dates for both lawyers and litigants alike: the pre-trial conference.

Enforcement of International Arbitration Agreements Belongs in Federal Court

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In the United States, the Federal Arbitration Act ("FAA") provides the rules that govern most arbitrations, and is binding on both state and federal courts. See 9 U.S.C. § 1 et seq. But the FAA is "something of an anomaly" in federal legislation as it "bestow[s] no federal jurisdiction." Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 582 (2008). So motions to compel arbitration or enforcement proceedings must be brought in state courts unless there is some independent basis to assert jurisdiction (such as federal diversity jurisdiction).

A Reverse Mortgage Provision Incorporates The Statutory Power Of Sale Even Though It Omits The Word "Statutory"

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Massachusetts is a non-judicial foreclosure state, meaning that a mortgagee is authorized to foreclose on a mortgaged property without obtaining prior court approval. The ability of a lender to exercise its "power of sale," that is without court approval, exists only if such power is granted in the mortgage itself. If the mortgage does not contain a "power of sale" provision, the lender is left with two time-consuming options to recover the amount due under the loan: either file suit or conduct a foreclosure by entry, which takes three years.

Fiduciary Litigation Pilot Project of the Probate & Family Court Expanded

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The Probate & Family Court recently announced that the Fiduciary Litigation Pilot Project under Standing Order 3-17 (https://www.mass.gov/probate-and-family-court-rules/probate-and-family-court-standing-order-3-17-fiduciary-litigation) has been expanded to apply to cases filed in Essex and Plymouth Counties. Previously, the pilot project applied to case filed only in Middlesex, Norfolk and Suffolk Counties.

I Didn't Quit - You Fired Me!

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An employee who voluntarily quits their job is, in most circumstances, not entitled to collect unemployment benefits or sue their employer for wrongful termination. However, an employee who believes they were forced to quit their job because their working conditions were intolerable may be able to argue that they were "constructively discharged," meaning that the termination of their employment is viewed not as a resignation but as though the employee was fired. In such circumstances, an employee who might not otherwise have been able to apply for unemployment benefits or to make a claim against their employer for wrongful termination will be permitted to do so.

Land Court or Superior Court? Choosing a venue for your property dispute.

Parties involved in a real estate dispute in Massachusetts are fortunate to have choices when it comes to the venue of the litigation. One of the most strategic decisions that a plaintiff or defendant can make is deciding where to litigate the case. When it comes to real property disputes, the Massachusetts Land Court and the Superior Court have overlapping jurisdiction, also referred to as concurrent jurisdiction, on certain claims. While the Superior Court enjoys broad jurisdiction over a variety of civil and criminal matters, the Land Court specializes in disputes involving real property. Massachusetts General Laws Chapter 212, § 26A, permits either party to remove any non-jury civil action involving "any right, title or interest in land" from the Superior Court to the Land Court. The claim must not be one that entitles a party to a jury trial because the Land Court only conducts jury-waived trials, frequently called bench trials.

Computer-Based Phone System Does Not Violate TCPA Prohibitions on Use of Automatic Telephone Dialing Systems

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The United States District Court for the Southern District of Florida has agreed with the Northern District of Illinois's reasoning in Arora v. Transworld Systems Inc., 2017 WL 3620742 (N.D. Ill. Aug. 23, 2017), and found that a loan servicer's use of a computer-based phone system to contact an individual's cell phone without permission does not violate the Telephone Consumer Protection Act's ("TCPA"), 47 U.S.C. § 227, prohibition on the use of Automatic Telephone Dialing Systems ("ATDS"). The plaintiff in Ferrer v. Bayview Loan Servicing, LLC, 2018 WL 582584 (S.D. Fla. Jan. 25, 2018) alleged that Bayview Loan Servicing, LLC's ("Bayview") calls to her cell phone after she revoked consent constituted prohibited use of an ATDS pursuant to the TCPA.

Beware the Convention on the International Sale of Goods

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Would it surprise you to learn that when you see a clause in your international sales contract stating that Massachusetts (or any other State's) law applies, that it actually incorporates an international treaty that will likely supersede the Uniform Commercial Code ("UCC")?

Removal Cases Before Determining Custody Arrangements

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Removal matters - where one parent seeks to move with a child or children either to another state or to a place within the Commonwealth that is far enough away to cause a significant impact on the parenting plan - are amongst the most fraught cases that attorneys and courts have to wrestle with. Unlike most other issues that arise in the context of parenting, removal matters do start to resemble zero-sum conflicts where the stakes can be enormous.

You May Not Have Until December 31, 2018 to Avoid Losing the Alimony Deduction

One of the new provisions of the new tax reform bill - background here - is that the long-standing tax deduction for alimony will no longer be available for separation agreements and divorces obtained after December 31, 2018. Specifically, the reform applies to "any divorce or separation instrument . . . executed after December 31, 2018" (emphasis added).

Bitcoin: What's its Worth in Court?

The price of Bitcoin has recently skyrocketed, rising from $1200 per Bitcoin in the second quarter of 2017 to $ 10,000 per Bitcoin in 2018. However, the law has not kept pace: critical questions remain regarding how Bitcoin should be valued. For example, if Bitcoin is fraudulently transferred, how should damages be calculated? In February 2016, in the first case of its kind, the U.S. Bankruptcy Court for the Northern District of California held that, for the purpose of the fraudulent transfer provisions of the U.S. bankruptcy code, Bitcoins are not the equivalent of United States dollars. However, the court left open whether Bitcoin should be valued as a currency or a commodity.

Bitcoin: What's its Worth in Court?

The price of Bitcoin has recently skyrocketed, rising from $1200 per Bitcoin in the second quarter of 2017 to $ 10,000 per Bitcoin in 2018. However, the law has not kept pace: critical questions remain regarding how Bitcoin should be valued. For example, if Bitcoin is fraudulently transferred, how should damages be calculated? In February 2016, in the first case of its kind, the U.S. Bankruptcy Court for the Northern District of California held that, for the purpose of the fraudulent transfer provisions of the U.S. bankruptcy code, Bitcoins are not the equivalent of United States dollars. However, the court left open whether Bitcoin should be valued as a currency or a commodity.

District of Columbia Court of Appeals Upholds CFPB's Single-Director Power Structure

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Authorized by the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Consumer Financial Protection Bureau (the "CFPB") is an agency of the United States government that regulates banks, credit unions, debt collectors, and many other sectors of the American financial services industry.

Fiduciary Litigation Pilot Project Provides Streamlined and Specialized Venue for Probate Litigation

One of the first questions that any attorney and potential litigant must consider when deciding whether to file a lawsuit is where to bring the case. Since November 2017, potential probate litigants in three Massachusetts counties have a new venue to consider, the Fiduciary Litigation Session, or "FLS", at the Norfolk Division of the Probate and Family Court in Canton, Massachusetts. The parameters of the FLS are outlined in Probate and Family Court Standing Order 3-17. Borrowing elements of the successful Business Litigation Session at the Suffolk Superior Court, /blog/2015/10/the-specialized-role-of-the-business-litigation-session.shtml, the FLS's goal is "to provide a specialized forum for the speedy resolution of contested and complex probate litigation cases and to provide individualized and collaborative case management to reduce the costs associated with fiduciary litigation." http://www.mass.gov/courts/case-legal-res/rules-of-court/probate/pfc-orders/3-17.html

Web-Based Dialing System Does Not Violate TCPA Prohibitions on Use of Automatic Telephone Dialing Systems

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The United States District Court for the Northern District of Illinois has found that a debt collector's use of a web-based dialing system to contact an individual's cell phone without permission does not violate the Telephone Consumer Protection Act's ("TCPA"), 47 U.S.C. § 227, prohibition on the use of Automatic Telephone Dialing Systems ("ATDS"). The plaintiff in Arora v. Transworld Systems Inc., 2017 WL 3620742 (N.D. Ill. Aug. 23, 2017) alleged that Transworld System Inc.'s ("Transworld") calls to his cell phone without his consent constituted prohibited use of an ATDS pursuant to the TCPA.

The Pregnant Workers Fairness Act: Recommendations for Employers

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On April 1, 2018, the Pregnant Workers Fairness Act (the "Act") takes effect. https://malegislature.gov/Laws/SessionLaws/Acts/2017/Chapter54. The Act amends Massachusetts' anti-discrimination law, G.L. c. 151B, which applies to employers with six or more employees, to now include pregnancy and related conditions as protected categories. The Act requires employers to provide "reasonable accommodations" for pregnancy and related conditions, including breastfeeding and the need to express breast milk, so long as the accommodations do not cause the employer "undue hardship."

Tax Reform Bill Eliminates the Alimony Deduction

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The new tax reform bill (https://www.congress.gov/bill/115th-congress/house-bill/1), which was signed into law on December 22, 2017, eliminates (http://money.cnn.com/2017/12/15/pf/taxes/alimony-tax-bill/index.html) the tax deduction for alimony payments for separation agreements and divorces obtained after December 31, 2018.

Medical Marijuana in the Workplace

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In a recent landmark decision, Barbuto v. Advantage Sales & Marketing, LLC, the Supreme Judicial Court ruled that an employer that terminated an employee for testing positive for marijuana use (which violated the company's policy) could be found to have discriminated against the employee on the basis of her handicap. At the time she was hired, Barbuto was informed that the company would require her to undergo a drug test. She informed the company that her physician had provided her a written certification that allowed her to use marijuana for medical purposes, due to the fact that she suffered from a debilitating medical condition under Massachusetts law; she also agreed that she would not use marijuana before work. The employer told her that a positive result for marijuana would not disqualify her from the position. Despite having made that assurance, following Barbuto's first day of work Advantage Sales terminated her employment due to the positive drug test, on grounds that the company followed federal law, not state law. The use of marijuana for medicinal purposes, while legal in Massachusetts at the time (the non-medicinal use of marijuana had not yet been legalized), was still a crime pursuant to federal law. Therefore, the use marijuana for medical purposes, even while legal in Massachusetts, could still subject the user to federal criminal prosecution. Barbuto sued Advantage Sales, alleging (among other things) that she had been discriminated against on the basis of her handicap. In Massachusetts, a "handicap" is a physical or mental impairment that substantially limits one or more major life activities of a person (or a record of having such impairment or being regarded as having such impairment). Massachusetts law prohibits employers from terminating or refusing to hire an employee because of their handicap if that employee is capable of performing the essential functions of the position involved with "reasonable accommodation," unless the employer can demonstrate that the accommodation that would need to be made would impose an undue hardship to the employer's business. A reasonable accommodation is an adjustment or modification to a job (or the way it is done or the environment in which it is done) that makes it possible for the handicapped individual to perform the essential functions of the job. An employer who receives a request for a reasonable accommodation from a handicapped person is required by Massachusetts law to engage in an interactive process with the employee to ascertain whether the requested accommodation is reasonable and, if not, whether another accommodation can be made that would be reasonable. The Massachusetts medical marijuana law provides, "Any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions." Advantage Sales claimed it owed Barbuto no obligation to participate in the interactive process to identify a reasonable accommodation before it terminated her employment because, it alleged, the accommodation she sought violated a federal statute and was, consequently, unreasonable. It also alleged that she was terminated because she failed the drug test in violation of company policy, not because of her handicap. The SJC rejected Advantage Sales' first argument on grounds that the fact that Barbuto's possession of medical marijuana violated federal law does not make it per se unreasonable as an accommodation. It noted that only the employee was at risk of federal criminal prosecution for her possession of the medical marijuana, not the employer. It concluded that to hold otherwise would operate to deny handicapped employees the right to or privilege of a reasonable accommodation under Massachusetts law. It also pointed out that, even if the requested accommodation had been unreasonable, Advantage Sales was still obligated to participate in the interactive process of trying to craft another, equally effective accommodation that was reasonable (which it had not done). The Court rejected Advantage Sales' second argument on grounds that it would permit employers to enact policies that would enable them to do an end-run around handicap discrimination laws (i.e., by adopting company policies that would deny employees reasonable accommodations). The Court reversed the lower court's dismissal of Barbuto's claims of handicap discrimination and sent the case back to the lower court to determine whether her use of medical marijuana would impose an undue hardship on Advantage Sales' business and would, therefore, not be a reasonable accommodation. The Barbuto decision does not mean that employers must permit the use of marijuana even by handicapped employees. The significance of the decision is, instead, that use of medical marijuana might constitute a reasonable accommodation available to a qualified handicapped employee even if the employer has a no-tolerance drug policy or federal law prohibits the possession of marijuana. When the use of medical marijuana is proposed as an accommodation by a qualified handicapped employee, employers must engage in the interactive process to determine whether it is reasonable and, if not, whether another reasonable accommodation exists.

The Positive-Selfish-Side of Effective Co-Parenting

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In contested custody cases where a child rejects contact with a parent, the rejected parent often accuses the aligned parent of engaging in alienating behaviors that are intended to sever the attachment between the child and the rejected parent.

Obtaining Discovery in the U.S. for Use in Foreign Tribunals

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Foreign litigants recently successfully sought the assistance of the United States District Court for the District of Massachusetts in obtaining discovery of Massachusetts residents and a Massachusetts company for use in a foreign proceeding. See In re Penner, No. 17-CV-12136-IT, 2017 WL 5632658 (D. Mass. Nov. 22, 2017). The foreign litigants in that case relied on a Federal Statute, 28 U.S.C. § 1782, that permits U.S. District Courts to order discovery for use in foreign proceedings under certain circumstances. Section 1782 provides, in pertinent part, "[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal." In granting discovery pursuant to Section 1782, the Penner court relied upon the United States Supreme Court's analysis of that statute in Intel Corp. v. Advanced Micro Devices, Inc.

Can An Exchange Of Text Messages Between Real Estate Brokers Create An Enforceable Contract For The Sale of Land?

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Nowadays, it is not uncommon for real estate brokers to communicate with their clients and negotiate deals through text messages. The use of text messages in that context has given rise to a new legal issue: whether an exchange of text messages between brokers can create an enforceable contract for the sale of land.

Mass. Appeals Court Rejects Bank's Attempt to Hold Surviving Spouse Liable for Late Husband's Refinancing Note

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The Massachusetts Appeals Court recently denied a mortgagee's attempt to invoke the doctrine of equitable subrogation to hold the surviving spouse of a mortgagor liable for a second mortgage on their residence--owned by the married couple as tenants in the entirety--that had been procured and signed only by the deceased spouse.

50/50 Parenting: Quantity versus Quality

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I recently came across Edward Kruk, PhD's article in Psychology Today entitled "Equal Parenting and the Quality of Parent-Child Attachments." The article summarizes research on parenting plans that I have found useful in support of some clients' requests for equal parenting time (R. Bauserman, "A meta-analysis of parental satisfaction, adjustment and conflict in joint custody and sole custody following divorce," Journal of Divorce and Remarriage [2012]; W.V. Fabricius, "Parenting time, parent conflict, parent-child relationships, and children's physical health," Parenting Plan Evaluations: Applied Research for the Family Court [2011]).

International Arbitration War Wages Over Pineapples

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The Court of Appeals for the Eleventh Circuit will be the next body to weigh in on a dispute between Del Monte International GmbH ("Del Monte") and Inversions y Procesadora Tropical INPROTSA, S.A. ("INPROTSA") over an exclusive sales agreement for pineapples. The case has been appealed to the Eleventh Circuit, and the appeal raises issues of the finality of international arbitration awards.

ATM Operators Not Required to Disclose Third Party Fees

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The United States District Court for the District of Maryland has confirmed that an ATM operator is not required to disclose the amount of fees charged by a third party, such as the cardholder's financial institution, for the transaction. The plaintiff in Alston v. Wells Fargo Bank, N.A., 2016 U.S. Dist. LEXIS 103026 (D. Md. Aug. 5, 2016) filed a putative class action against Wells Fargo and Capital One arising from charges for his withdrawal from his Capital One account at a Wells Fargo ATM.

Massachusetts Superior Court Decides That Right to Arbitration was Waived Due to Litigation Conduct

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In a recent Superior Court decision, a judge held that there is a presumption that courts, not arbitral tribunals, have exclusive jurisdiction over the issue of whether a party has waived a contractual right to arbitration by engaging in substantial litigation before a motion to compel arbitration was filed.

Construction Defects In Condominiums: What Owners And Prospective Buyers Should Know About Common Areas

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An often-overlooked downside to the surging real estate market is that the demand for good contractors often exceeds the supply. As a result, the risk of poor quality construction tends to rise as builders rush to complete jobs or use workers that are not up to the task. In the context of condominiums, the risks of construction defects present some unique complications for unit owners when the defect is found in a common area such as a roof, elevator, or staircase.

CFPB Anti-Arbitration Rule Repealed

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On Wednesday, November 1, 2017, President Donald Trump signed legislation repealing an anti-arbitration rule that the Consumer Financial Protection Bureau ("CFPB") had promulgated in early July. Repeal of the CFPB rule was welcomed by representatives of the financial services industry.

Young v. Young: The SJC Places a Time Limitation on the Determination of "Need" in the Alimony Reform Act

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In the Alimony Reform Act of 2011, St. 2011, c. 124 ("the Act"), "alimony" is defined as "the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time . . . ." G. L. c. 208, § 48. However, because neither "ability to pay" nor "need of support" are defined in the Act, Probate and Family Court judges are given the discretion to balance numerous other factors, such as the parties' ages, health, incomes, and economic and non-economic contributions to the marriage, in order to arrive at a fair alimony award. See G. L. c. 208, § 53 (a).

Creative American Arbitration Association (AAA) Procedure Offers Cost-Savings for Three-Arbitrator Panels

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The American Arbitration Association ("AAA") has announced on its website that it is offering a "Streamlined Three-Arbitrator Panel Option" for large, complex cases. It's a fresh idea that is worthy of parties' consideration in cases where the rules (see Section L-2(a)) or the parties' agreement requires a panel of three arbitrators to hear and decide the case. The Streamlined Three-Arbitrator Panel Option allows a single arbitrator to work with the parties in moving the case through the preliminary and discovery stages. A full panel participates in the evidentiary hearing and in rendering the final award.

Failure to Record Complaint Requires Dismissal Under Statute of Repose

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The Massachusetts Land Court has held that a plaintiff's failure to timely file a copy of a complaint challenging a foreclosure with the registry of deeds, as required by Mass. Gen. Laws c. 244, § 15, requires dismissal of a complaint challenging the subject foreclosure. Kenney, et al. v. Brown, et al., No. 16 MISC 000530 (Mass. Land Court July 27, 2017).

U.S. Supreme Court Limits Scope of FDCPA.

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On June 12, 2017, the United States Supreme Court decided a case captioned Henson v. Santander Consumer USA, Inc., No. 16-349. In an opinion authored by newly-appointed Justice Neil Gorsuch and hailed by the financial services industry, the unanimous Court held that a company may collect debts that it purchased for its own account without implicating the statutory definition of "debt collector" set forth in the federal Fair Debt Collection Practices Act ("FDCPA").

A Notice of Default That Does Not Strictly Comply With Paragraph 22 Of The Mortgage Renders a Foreclosure Sale Void So Long As The Issue Of Noncompliance Was Asserted In Court Before July 17, 2015

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The Supreme Judicial Court ("SJC") recently held that its holding in Pinti v. Emigrant Mtge Co., 472 Mass. 226, which was decided on July 17, 2015, "applies in any case where the issue was timely and fairly asserted in the trial court or on appeal before July 17, 2015." Federal National Mortgage Association v. Marroquin, 477 Mass. 82, 74 N.E.3d 592 (May 11, 2017).

Derivative suits on behalf of LLCs: No futility exception? Not so fast.

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Must all derivative suits in Massachusetts be preceded by a written demand that a company take action? No. Members (shareholders) of a limited liability company seeking to bring suit derivatively on behalf of the LLC can do so without written demand.

Signing Certified Mail Receipt Satisfies Requirement to Acknowledge Receipt of Borrower's Request for Information

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The United States Court of Appeals for the Eleventh Circuit has held, in a matter of first impression, that signing a borrower's certified-mail return receipt can serve as a loan servicer's acknowledgment of receipt of a borrower's written request for information. Meeks v. Ocwen Loan Servicing LLC, No. 16-15536, 2017 WL 782285, at *1 (11th Cir. Mar. 1, 2017).

Haunted House Hunting and the Duty to Disclose

In a competitive real estate market like Greater Boston's, more homebuyers are agreeing to what previously would have been seen as a draconian contract term: purchasing a home without first conducting an inspection. But today, in a hot seller's market, it may be a buyer's best hope to landing the winning bid. The perils of buying a home before learning about things like the property's structural soundness would spook most anyone, not just the most risk adverse. But what about the intangibles that even a traditional inspection wouldn't reveal? One Massachusetts statute defines the obligations of a seller of real property that is potentially "psychologically impacted." Specifically, G.L. ch. 93, § 114, carves out "alleged parapsychological or supernatural phenomenon" as a non-material fact, that is, information that does not need to be disclosed by a seller during a real estate transaction.

Superior Court Denies College's Attempt to Hold Auditor Liable for Failure to Detect Employee's Fraud

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In an important recent decision in the Business Litigation Session of the Massachusetts Superior Court, Judge Kenneth W. Salinger rejected Merrimack College's attempt to hold its auditor KPMG, LLP liable for its failure to discover an employee's fraud.

A Parenting Coordinator Can Help Prevent Hostile and Dictatorial Toned Emails Counter-Productive to Effective Co-Parenting

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In Leon v. Cormier the MA Appeals Court upheld a contempt judgment against a mother who violated a parenting coordinator's order related to the mother's e-mail communications with the father. Specifically, the parenting coordinator ("PC") ordered that "as a rule, emails between [the parties] should . . . occur during . . . designated Tuesday email time. The ONLY exceptions are in the case of significant emergency or a necessary change in logistics that must be established for something that is to occur prior to the next Tuesday email time."

How Do Criminal Charges Issue?

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When an individual is charged with a crime over which the District Court has jurisdiction (all misdemeanors, felonies punishable of a sentence of up to five years and certain other felonies), a criminal complaint issues against them. A criminal complaint is the document that identifies the crime that is alleged to have been committed. Before a criminal complaint can issue, there must be a finding by a magistrate that there is probable cause for the complaint to issue. A magistrate is a District Court official who is authorized by law to authorize the issuance of criminal complaints and issue process (such as an arrest warrant or summons). Probable cause is a very low standard; it simply means that reasonably trustworthy information exists that is sufficient to warrant a prudent person to believe that a crime has been committed and the accused is the perpetrator.

Massachusetts Prenuptial Agreement Signed One Day Prior to Wedding Upheld: Size and Formality of Wedding and Prior Divorce Matters

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The Massachusetts Appeals Court has issued a Rule 1:28 Memorandum and Order in a divorce case entitled Roof v. Abelowitz upholding the validity and enforceability of a prenuptial agreement that the wife signed only one day prior to the wedding. The court considered two particularly interesting factors in finding that the wife's waiver of rights under the prenuptial agreement was valid. In this case, the size a