Boston Business Litigation Blog

Life Sciences Companies Increase the Use of International Arbitration

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As a natural result of their expansion even further into the global market, life sciences companies have increasingly relied on international arbitration to resolve disputes, joining a growing number of industries that have made a similar move in recent years.  

Can a Court Deviate from the Child Support Guidelines?

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In Luce v. Folino-Inadoli, the Massachusetts Appeals Court (Rule 23.0 decision) affirmed the Probate and Family Court's reduction of the child support amount paid by the father to the mother, as well as the denial of retroactive relief for the father.

Alimony Statute Does Not Restrict Parties' Ability to Negotiate / Agree Upon How Alimony is Calculated

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In a recent Rule 23 decision, a panel of the Massachusetts Appeals Court reversed the lower court and held that G. L. c. 208, section 53 (i.e., section 53 of the Alimony Reform Act) does not restrict parties' ability to negotiate and agree upon how alimony is calculated when entering into a separation agreement. (See Pedro v. Pedro).  

Who Should Regulate FinTech Companies? OCC and CFPB at Odds

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Over the past decade, there has been rapid growth in technology-enabled financial services, referred to as FinTech. This growth has included the creation and expansion of nonbank FinTech companies, i.e., companies that do not have a banking license and generally do not take traditional deposits. This rapid growth has inevitably led to questions of how such FinTech entities should be regulated.  

School Costs Cannot Form Basis to Deny Housing Construction Permits

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The Massachusetts Land Court, in two separate opinions, has held that the costs of educating school-age children who may occupy a housing complex is not a valid basis for denying a developer's request for a building permit. While the Massachusetts Appeals Court had skirted this issue years ago, these two cases are the first to squarely address the question of whether fiscal impact on a public school system is a valid ground on which to deny a housing proposal. The Bevilacqua Co., Inc. v. Lundberg, et al.160 Moulton Drive LLC v. Shaffer.

What is the Automatic Restraining Order in a Divorce Case?

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A question that frequently comes up in a divorce is what effect the filing has on the financial lives of the parties. Can they still use the joint credit card? Change the beneficiaries on the life insurance policy? Spend money?

Can U.S. Companies Can Be Sued in the U.S. for their Supplier's Human Rights Violations? Supreme Court to Weigh In.

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Last month, the U.S. Supreme Court heard oral argument in a pair of cases that question the role of the U.S. court system in holding companies accountable for profiting from child slavery in foreign countries. The Alien Tort Statute (ATS) gives federal courts jurisdiction to hear lawsuits filed by non-U.S. citizens for some violations of international law. In two related cases, the Supreme Court will decide whether U.S. corporations--as opposed to individuals--may be liable under the statute, and whether the allegations of corporate wrongdoing in these cases were sufficiently connected to the U.S.  

In Case of First Impression, First Circuit Holds that Retaliation Claims Under the False Claims Act Must Be Evaluated Under the But-For Causation Standard

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The False Claims Act prohibits employers from discriminating against an employee "because of" his or her protected conduct. In a case of first impression recently decided, Lestage v. Coloplast Corp., the First Circuit explained the meaning of "because of."  Lestage, a salesperson, sued Coloplast alleging that, after it learned she had filed a qui tam action against it and against one of its customers, Coloplast retaliated against her in violation of the False Claims Act by placing her on leave and then assigning her inferior accounts when she returned. A jury trial awarded Lestage $762,525 in compensatory damages. Coloplast unsuccessfully moved for judgment as a matter of law and new trial, and then appealed. The First Circuit affirmed the judgment.

Receiving Collection Letter Overstating Debt Owed Does Not Constitute Harm Sufficient to Create Standing Under Fair Debt Collection Practices Act

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In Nettles v. Midland Funding LLC the Seventh Circuit recently held Plaintiff Ashley Nettles did not have standing to bring a claim against Defendant Midland Funding LLC under the Fair Debt Collection Practices Act ("FDCPA") on the grounds that Plaintiff suffered no harm in fact for receiving a debt collection letter that overstated her remaining balance owed to Defendant.    

What Happens to My Health Insurance Post-Divorce?

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In many divorce cases, the parties and their children maintain common health insurance coverage, often through a plan that is available as the result of one party's employment. If both parties are employed at the time of their divorce, then it is commonplace for each of them to agree to obtain and pay for his or her own individual health insurance post-divorce. However, in cases where one party will not have the ability to access reasonably priced health insurance post-divorce - normally because he or she is not eligible to receive full health insurance coverage through employment - the parties' Separation Agreement or Judgment of Divorce must address how each party will obtain and pay for their health insurance. Luckily, and depending on the specific insurance plan(s) at issue, Massachusetts allows individuals to remain on their ex-spouse's health and dental insurance plans post-divorce, as provided for in G. L. c. 175, 110I. Importantly, this right is not automatic; if one party intends to stay on an ex-spouse's health insurance plan post-divorce, then that entitlement must be specifically incorporated into the parties' Separation Agreement or Judgment of Divorce in order to be enforceable. 

Massachusetts Paid Family and Medical Leave Act

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On January 1, 2021, the Massachusetts Paid Family and Medical Leave Act ("PFML") will begin providing benefits to eligible workers. Eligible workers will be entitled to the following benefits:

Reflections on Client Advocacy and Practicing Family Law in Massachusetts During a Global Pandemic

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As 2020 draws to an end, COVID-19 continues to impact the way of life for individuals and businesses across the Commonwealth, and the Massachusetts Probate and Family Court bar is no exception. Beginning in March 2020, and seemingly overnight, Probate and Family Court judges, clerks, administrators, staff and domestic relations attorneys had to rework their practices to address the challenge of pivoting from an entrenched system to adapting to a new reality. 

Can Employers Require Their Employees To Receive A COVID-19 Vaccine?

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On December 16, 2020, the United States Equal Employment Opportunity Commission ("EEOC") issued guidance addressing questions related to the administration of the COVID-19 vaccine to their employees.  Under this guidance, employers may require their employers to be vaccinated.  However, requiring employees to be vaccinated raises multiple legal issues that employers should be aware of.

First Circuit Reverses Its Earlier Decision Voiding a Foreclosure Sale Over a Potentially Defective Notice of Default After the SJC, on Certification, Found the Notice Was Not Misleading

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When a borrower defaults on the terms of the mortgage, the loan is accelerated, thereby allowing the bank to conduct a foreclosure sale. Because Massachusetts is a non-judicial foreclosure state, a bank does not need to obtain a judgment to foreclose (provided the mortgage contains a statutory power of sale provision). When sending a notice of default, a bank must strictly comply with the terms of the mortgage and also comply with statutory provisions governing the foreclosure of mortgages.

First Circuit Upholds New Trial on Basis of Confrontation Clause Violation

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In United States v. Ackerly, the government appealed the District Court's decision to grant a new trial on the basis of the defendant's argument that the government violated the Confrontation Clause. In that case, the defendant and her co-defendants were alleged to have conducted a fraudulent scheme, which consisted of bribing an employee of a firm (ISS) in exchange for non-public information about ISS's proxy-voting advice, and to have concealed their scheme by falsely invoicing their own employer's (Georgeson, Inc.) clients for a portion of the cost of the bribes. 

Massachusetts Appeals Court Affirms Superior Court Decision that Retreat Rentals on an Uninhabited Coastline in Duxbury do not Violate Conservation Restriction

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In Wildlands Trust of Southeastern Mass., Inc v. Cedar Hill Retreat Center, Inc., the Massachusetts Appeals Court affirms a Superior Court judge's determination that Defendant Cedar Hill Retreat Center, Inc. ("Cedar Hill") did not violate a conservation restriction placed upon the coastal lands on the Duxbury Shore despite the trial judge's misinterpretation of the restriction's provisions.

"CORPORATE FAMILY LAW" AT FITCH: Business Litigators and Family Law Litigators: Learning from Each Other

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This post is part one in a series aimed at helping business litigation and family law litigation attorneys expand their arsenal of strategies for helping clients resolve their disputes. To the casual observer, the practice of business litigation and the practice of family law litigation may appear to have little in common.  Each practice area has its own separate governing statutes and its own distinct and well-developed body of case law.  Indeed, in Massachusetts, business and family law litigation take place in different trial courts, with business litigation often occurring in The Superior Court Department and family law litigation in The Probate and Family Court Department.  

European Data Protection Board Issues Recommendations to Guide Data Transfers from European Union to the United States

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In July 2020, the European Court of Justice invalidated the use of the Privacy Shield framework, which thousands of companies had been using to transfer data between the European Union (EU) and the United States. The Court reasoned that the Privacy Shield did not provide the required level of protection to the transferred data, as the level of protection required for data in the European Economic Area is not diminished merely because that data is transferred outside of the EU.

Face-to-Face Meeting Requirement Before Foreclosure Satisfied by Letter and Visit to Arrange Later Meeting

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The United States Court of Appeals for the First Circuit has held that, where a foreclosing mortgagee is required by HUD regulations incorporated into the mortgage, to make reasonable efforts to hold a face-to-face meeting with a borrower before foreclosure, there is no requirement that those efforts to arrange such a meeting must be made by someone with the "qualifications or authority to conduct a face-to-face meeting for the purpose of resolving mortgage delinquencies."  Donahue v. Federal National Mortgage Association

SJC Rules that Statute of Limitations in Condo Construction Defect Claims are Specific to Each Building in a Multi-Building Development, Not the Entire Development

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In a win for developers, Supreme Judicial Court says six-year clock for design and construction defect claims runs separately for each building within condominium development.

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.