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Tax Foreclosure Seizures Cannot Exceed Amount Owed

Tax authorities in numerous states have historically collected more funds in tax foreclosures than the amount owed by a delinquent taxpayer. The United States Supreme Court, reversing the U.S. Court of Appeals for the Eighth Circuit, has held that a state collecting...

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When Is Sole Legal Custody Appropriate?

"Shared legal custody" is defined in G. L. c. 208, § 31 as "continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development."...

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Is Legal Separation an Option in Massachusetts?

In Massachusetts it is not possible for a married couple to obtain a “legal separation.” However, if a couple is separating or is already separated, a married individual can file what is called a Complaint for Separate Support under Massachusetts General Law Chapter...

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First Circuit Affirms $1.7M Award in Noncompete Suit

In NuVasive, Inc. v. Day, the First Circuit recently affirmed a $1.7M award of damages and attorneys’ fees in a noncompete suit brought by a medical device company against one of its former sales representatives. In the appeal, Timothy Day challenged the district...

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Absent Formal Modification, Court Orders Should Be Followed

In Rungta v. Dhanda, the Massachusetts Appeals Court affirmed multiple contempt judgments against father that were issued by the Probate and Family Court. Pursuant to the parties’ divorce judgment from 2013, mother could “claim the child for [F]ederal and [S]tate...

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Student Loans and Bankruptcy

For individuals seeking to discharge debt through bankruptcy, student loans are unique in that they require a bankruptcy court’s determination that payment of said loans would impose an undue hardship on the debtor and the debtor’s dependents. 11 U.S.C. § 523(a)(8)....

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Recognition of Money Judgment Against a Foreign Sovereign

In Villoldo v. Republic of Cuba, the Plaintiffs, two brothers, sought enforcement via the U.S. District Court in Colorado (“District Court”) under the Foreign Sovereign Immunities Act (“FSIA”) of a multi-billion-dollar money judgment previously awarded by a Florida...

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Is an inheritance considered in a divorce in Massachusetts?

Unlike many states, Massachusetts has not defined assets that would be considered “non-marital” or “separate” property. Therefore, there are several considerations that you need to discuss with your attorney when considering inherited assets: Contribution and source...

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Massachusetts Zoning Act Empowers Abutters

Adopted in 1975, the Massachusetts Zoning Act (“Zoning Act”) provides a set of statewide standards that govern municipalities’ promulgation and enforcement of zoning regulations. Yet for homeowners looking to renovate, the Zoning Act can make it easier than one would...

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Doing More with Less: In Zoning Board of Appeals of Milton v. HD/MW Randolph Avenue, LLC, et. al., the Massachusetts Supreme Judicial Court Affirms a Judgment by the Housing Appeals Committee to Strike Down Restrictions in a Comprehensive Permit that Made an Affordable Housing Project Significantly More Uneconomic

In 2014, the Massachusetts Housing Finance Agency (“MassHousing”) issued a project eligibility letter to developer HD/MW Randolph Avenue, LLC (“HD/MW”) for a ninety unit, mixed-income residential development in Milton. The letter qualified HD/MW to apply to the Milton...

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What Does a Prenuptial Agreement in Massachusetts Include?

Prenuptial - or antenuptial - agreements are becoming more and more popular. While some may balk at the idea of contemplating divorce at the same time that a wedding is being planned, prenuptial agreements can be very helpful instruments in the event that the marriage...

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How do I establish the value of my house in a divorce?

In many cases, a parcel of real estate will need to be valued for purposes of a divorce. This almost always occurs when one spouse wants to retain the marital home or another piece of land. The question then becomes, what value is going to be established for the house...

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Why Boston for International Arbitration?

Boston is known as the “Hub” for a reason and, in recent years, Boston has become the world’s top biotech hub, with over 1,000 biotech companies calling the Greater Boston area home. Boston also is a world-renowned educational hub, with over one hundred colleges and...

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Arbitrating Against a Foreign State

In a recent case from the District of Columbia Circuit, Process and Industrial Developments Ltd. v. Federal Republic of Nigeria, the DC Circuit allowed an arbitration enforcement action to proceed against Nigeria despite a foreign court’s setting aside of the arbitral...

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Overcoming the Presumption of Parentage

Massachusetts Probate and Family Courts are statutorily authorized to establish parentage pursuant to complaints filed under M.G.L. c. 209C, § 5 (“209C”). Under 209C (specifically 209C, § 6(a)(1)), there exists a statutory presumption whereby the spouse of an...

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What Happens If They Refuse to Arbitrate?

A recent case out of the Seventh Circuit, Bartlit Beck LLP v. Okada, dealt with a common question about arbitration: what happens when the other side refuses to participate. In Bartlit Beck, that law firm had represented Kazuo Okada in a multi-billion dollar lawsuit...

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OSHA Drops Its Vaccine Mandate for Large Businesses

Last week, in a statement and a notice of withdrawal, the Occupational Safety and Health Administration (OSHA) officially withdrew its emergency temporary standard (“ETS”) that required large employers, with 100 or more employees, to implement COVID-19 vaccination...

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Beneficiary Designations & Divorce

In American Family Life Assurance Company of Columbus v. Parker, the SJC ruled that a life insurance beneficiary designation naming an ex-spouse as beneficiary was revoked following the parties’ divorce by operation of law, pursuant to the Massachusetts Uniform...

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Can You Keep Your House Post-Divorce?

In many divorces, the house is frequently sold during or shortly after the divorce. This is generally because one, or in some cases, two streams of income were sufficient to maintain the carrying costs on one household, but would be insufficient to maintain the...

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US Court of Appeals Allows LIBOR Lawsuit to Proceed

The United States Court of Appeals for the Second Circuit ruled on December 30, 2021 that litigation could proceed against certain foreign financial institutions. The decision overturned the ruling of the Southern District of New York. The case relates to the...

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Enforcement of Emergency Arbitration Awards

US courts continue to be divided on the enforceability of emergency arbitration awards.  As addressed in previous writings, in 2019 the US District Court for the Northern District of Georgia refused to enforce an international Emergency Award in the Al Raha case,...

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Circuit Split Widens on Sovereign Immunity for FCRA Damages

The United States Court of Appeals for the District of Columbia, has deepened a split among federal appellate courts, holding that government agencies can be sued under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.A. § 1681. The DC Circuit joined the Seventh...

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Court Upholds Modification Judgment Shifting Custody of Children to Father When Record Reveals Mother’s Conduct Toward Father Constituted A Material Change In Circumstance Necessitating Modification In The Best Interests Of The Children.

In a recent Rule 23 decision, a panel of the Massachusetts Appeals Court upheld the lower court’s modification judgment shifting legal and primary physical custody of the parties’ two minor children from their mother to their father, noting the mother’s conduct...

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Standing to Sue Under the FCRA Requires Actual Harm

The United States Court of Appeals for the Sixth Circuit, in a case spanning fourteen years, has held that consumers alleging a violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.A. § 1681e(b), must allege actual harm to sue under the statute.  A claim for...

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Changes to Come in Banking Regulation?

On July 9, 2021, President Biden issued an executive order that could spell changes for banking regulation.  The Executive Order’s stated purpose is to promote a “fair, open, and competitive marketplace” and the Order asserts that “in the financial-services sector,...

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When can a child’s name be changed?

In a recent decision by the Appeals Court of Massachusetts, Gomes v. Candido, the court clarified the standard that is used when two parents disagree about their child’s surname. In the trial court, the parents, who were unmarried but in a relationship when the twin...

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Food Fight: Ioan Micula, et. al. v. Romania

In Ioan Micula, et. al. v. Romania, Swedish food industry brothers Viorel and Ioan Micula asked the United States District Court for the District of Columbia to affirm a federal judge’s ruling ordering Romania to pay the remaining balance of $96 million on a $356...

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Why the Arbitral Seat Matters

The recent Tenth Circuit case of Goldgroup Resources, Inc. v. DynaResource de Mexico, S.A. de C.V., 994 F.3d 1181 (10th Cir. 2021) helps to show why the selection of an arbitral seat can make a significant difference. The background to the case is a shareholder...

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What is the Standard for Civil Contempt?

In Tsavidis v. Tsavidis (Memo and Order Pursuant to Rule 23.0, June 7, 2021), the Massachusetts Appeals Court affirmed the Probate and Family Court’s finding that there was no contempt by the mother. Pursuant to the father and mother’s Separation Agreement, the father...

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The International Letter of Credit

Letters of credit are a common payment mechanism in international trade that normally allow a buyer to substitute the financial integrity of a stable credit source such as a bank for his own. For the seller of goods, a letter of credit functions as a bank’s...

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COVID-19 Emergency Paid Sick Leave

Governor Baker recently signed legislation requiring employers to provide COVID-19 emergency paid sick leave to eligible employees who are unable to work for COVID-19-related reasons. Eligible employees will be entitled to up to 40 hours of paid leave, with a weekly...

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Update: Senate Votes to Repeal “True Lender” Rule

Late last year, we wrote about the issuance of the “true lender” rule by the Office of the Comptroller of the Currency (OCC), which went into effect in December 2020.  Prior to the issuance of that rule, federal courts had differed as to whether third-party lenders...

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Issuance of Letters Rogatory: Final and Appealable

A letter rogatory is a formal request from a court in one country to a court in another country to perform some act. In the United States, common types of letters rogatory are requests for evidence, often document requests. Often, such letters rogatory seek documents...

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Banks Challenge Oregon’s COVID Foreclosure Moratorium

A group of Oregon banks and banking organizations have come together to challenge the legality of that state's emergency COVD-19 banking regulations. Enacted on June 30, 2020 and in effect until it expired on December 31, Oregon's House Bill (HB) 4204 placed...

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Virtual Arbitration After COVID

The world has grown more accustomed to doing business virtually during the COVID-19 pandemic. As the vaccine rollout progresses, and businesses and lawyers ponder a future post-pandemic, the question arises: what permanent changes to the business world will this...

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Jurisdiction for Filing of Divorce in Massachusetts

In new decision, De-Paz York v. York, the Appeals Court finds that the Probate and Family Court did not have subject matter jurisdiction to issue a divorce judgment. In that case, the parties last lived together in Colombia on March 30, 2017. The wife filed a...

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Who Should Regulate FinTech Companies? OCC and CFPB at Odds

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...

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What is the Automatic Restraining Order in a Divorce Case?

What is the Automatic Restraining Order in a Divorce Case? 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...

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Can a Court Deviate from the Child Support Guidelines?

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. In October 2018,...

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Massachusetts Paid Family and Medical Leave Act

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: •  Up to 20 weeks of job-protected paid leave for a worker's own serious...

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What Happens to My Health Insurance Post-Divorce?

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...

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

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...

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Advantages to International Arbitration: Enforceability

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...

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Discovering “Hidden” Assets in a Divorce

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...

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In Which Cases is an Alimony Award Based on Need?

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...

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Advantages to International Arbitration: Confidentiality

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...

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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?

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...

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Are Non-Disparagement Clauses Constitutional?

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...

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

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")...

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Business Interruption Coverage Class Action

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...

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Are Non-Disparagement Clauses Constitutional?

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...

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Co-Parenting During the COVID-19 Crisis

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...

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Why Are Mediation and Conciliation Confidential?

Mediation and conciliation are two of the most common methods of alternative dispute resolution ("ADR"). In each of these voluntary processes, a third party neutral with no stake in the case tries to facilitate a compromise or agreement between parties who are in...

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The Insider Trading Landscape Changes Under Blaszczak

The U.S. Court of Appeals for the Second Circuit's decision in U.S. v. Blaszczak may have just changed the landscape for insider trading prosecutions. In order to prove an insider trading charge under the Securities Exchange Act of 1934 (the "Exchange Act"), the...

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CFPB Now Claims Its Structure Is Unconstitutional

A few short months ago, I wrote a blog post about the Consumer Financial Protection Bureau surviving an attack on its constitutionality in the United States Court of Appeals for the Ninth Circuit. In that case, the plaintiff alleged that the CFPB's structure was...

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Can Student Loan Debt be Categorized as a Marital Debt?

In Massachusetts, a judge has broad discretion with respect to the equitable division of the marital estate and may consider both economic and noneconomic contributions to the marital estate. A prenuptial agreement can clarify the responsibility for debts incurred...

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When Income Attribution is Appropriate

In a recent case, Macri v. Macri, the Massachusetts Appeals Court recently cemented a trial court decision to, among other things, attribute income to Husband, who was unemployed at the time of trial. Attribution of income is often a contested topic in the Probate and...

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What Happens if the House is Sold During the Divorce?

It is the unfortunate case that, in many divorces, the marital home is sold as part of the divorce proceedings. Sometimes, the decision is made for non-financial issues - the house is tied to too many memories and both parties decide that they are better off starting...

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Arbitrating Technology Transfer Disputes

Technology transfer is a critical way for innovation companies to enter into new markets and profit from the hard work that they have done in developing new technology. These agreements can take many forms, from an assignment of the intellectual property rights to a...

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Summer Internship Reflection: The Psychology of Law

By Alina C. HachigianThis summer I had the opportunity to intern with Fitch Law Partners. In addition to assisting attorneys with research and deposition preparations, over the course of the summer I was able to experience law outside the office as well. I traveled to...

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The New Judgments Convention

One of the main reasons that we at FITCH recommend that the vast majority of cross-border contracts contain international arbitration clauses is because of the New York Convention. More formally called the Convention on the Recognition and Enforcement of Foreign...

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What Happens at a Pre-Trial Hearing?

If a divorce or 209C case is pending, the court, sooner or later, will schedule what is known as a pre-trial hearing. Sometimes this is also referred to as a pre-trial conference. This will happen either on the court's own initiative once a complaint has been on file...

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When is Joint Legal Custody Inappropriate?

Massachusetts courts recognize two distinct types of custody of children. The first, physical custody, is what most litigants mean when they refer to having "joint custody" or "primary custody" of their child. Physical custody is a term that describes the amount of...

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To Be or Not to Be . . . a Debt Collector

In Obduskey v. McCarthy & Holthus L.L.P., the Supreme Court examined whether an entity engaged in the limited purpose of enforcing a security interest in a nonjudicial foreclosure proceeding fit the definition a "debt collector," thereby subjecting it to all of...

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Are trust interests part of the marital estate?

The inclusion - or non-inclusion - of beneficial trust interests in the marital estate for purposes of an asset division incident to a divorce is quite often a hotly contested issue. How does one account for a trust interest in a divorce? Did the trustee make any...

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Serving Process on Chinese Companies in US Litigation

Hundreds of billions of dollars' worth of goods and services flow between the United States and China every year, and all of that commerce gives rise to disputes.  While we at FITCH usually recommend entering into International Arbitration agreements when contracting...

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Business Valuation in Divorce Cases

Business valuation arises in divorce cases where one or both spouses have an ownership interest in a closely held corporation - that is, a corporation which has a limited number of shareholders. This ownership interest is usually considered a marital asset, just like...

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Does The Wage Act Apply To Employment In A Foreign Country?

The answer is: it depends.  A Superior Court recently addressed that issue in Lockley v. Studentcity.com (Suffolk Superior Court, No.201801293-BLS2). Ms. Lockley, a resident of Colorado, brought a putative class action lawsuit alleging violation of the Wage Act...

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What Happens if Nothing is Happening in my Divorce Case?

Although it may be difficult to imagine for someone going through the difficult process of a divorce, on occasion divorce cases can linger for months, if not years, with little to no activity on the docket. The parties may have filed divorce papers, but never got...

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Handling your First International Arbitration

It was bound to happen eventually.  Maybe your company just went global or maybe they've been working internationally for years.  But eventually, whether through some mistake in translation in an international contract, some global or local change in circumstances, or...

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Business Valuation in Divorce Cases

Business valuation arises in divorce cases where one or both spouses have an ownership interest in a closely held corporation - that is, a corporation which has a limited number of shareholders. This ownership interest is usually considered a marital asset, just like...

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Can I relocate with my child after divorce?

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...

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Texas Judge Dismisses Suit Against ICDR

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...

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Property Inspections Are Not Debt Collection Under FDCPA

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...

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Does ROTC Participation Create an Emancipating Event?

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...

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How does my pension get divided during divorce?

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...

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What are the Rule 410 Mandatory Document Disclosures?

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. According to Rule 410, each party to a divorce or 209C action (or complaint for...

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Jim Brooks Community Stabilization Act Fails to Pass

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...

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How Does My Pension Get Valued During Divorce?

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...

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What happens at a pre-trial conference?

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...

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I Didn’t Quit – You Fired Me!

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...

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Beware the Convention on the International Sale of Goods

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...

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Removal Cases Before Determining Custody Arrangements

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...

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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...

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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...

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Tax Reform Bill Eliminates the Alimony Deduction

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...

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The Positive-Selfish-Side of Effective Co-Parenting

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. But aligned parents...

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Medical Marijuana in the Workplace

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...

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50/50 Parenting: Quantity versus Quality

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...

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International Arbitration War Wages Over Pineapples

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...

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ATM Operators Not Required to Disclose Third Party Fees

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....

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CFPB Anti-Arbitration Rule Repealed

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...

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U.S. Supreme Court Limits Scope of FDCPA.

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...

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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...

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How Do Criminal Charges Issue?

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...

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What a Financial Statement Is and Why You Need One

Many clients describe the Rule 401 financial statement as "a giant pain," "putting square pegs into round holes," or "the most annoying thing I've ever done in my life." While filling out a financial statement can often be fairly simple, sometimes it can take days or...

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Lesson in Co-parenting from the Presidential Debate

A final question to the candidates during a recent presidential debate reminded me of a topic that often comes up in the context of co-parenting work in high-conflict cases, interviews by custody evaluators, questioning at depositions in custody disputes, documents...

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International Recovery of Child Support

On August 30, 2016, President Obama signed the instrument of ratification for the Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance. A White House press release of the same date describes the Convention's "numerous...

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Driving Away From the Courts: Uber Drivers Must Arbitrate

In a recent decision, the Ninth Circuit Court of Appeals in San Francisco, ruled that private arbitration agreements between Uber and two former drivers in California and Massachusetts were valid and enforceable. The former drivers, who were seeking protections for...

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Appeals Court Dismisses HAMP-Based Negligence Claim

In a post-foreclosure lawsuit, Santos v. U.S. Bank National Association, et al., 2016 WL 3636049 (Mass.App.Ct. 2016), a borrower ("Santos") alleged inter alia that a foreclosing mortgagee ("U.S. Bank") and its loan servicer negligently handled his applications for a...

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A Primer On The Defend Trade Secrets Act

A trade secret in the United States, once protected under state common law and state statute, is now officially a matter of national importance. President Barack Obama signed into federal law on May 11, 2016 the bi-partisan Defend Trade Secrets Act (DTSA), which...

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Division of Banks Issues Warning About ATM ‘Skimming’

The Massachusetts Division of Banks (the "Division") has issued a letter to Non-Bank ATM Registrants in the Commonwealth to warn them about a "concerning increase" in ATM skimming fraud. The Division's March 16, 2016 letter is published on its website. ATM skimming...

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The Benefits of Practicing in the Massachusetts Land Court

A silver lining to finding oneself involved in a property dispute is the opportunity to resolve the issue in one of the Commonwealth's specialized courts, the Massachusetts Land Court. The types of legal disputes that Land Court judges decide vary in type and scope,...

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Of Jurors and Jury Instructions

I attended a recent Federal Bar Association breakfast that was hosted by a thoughtful member of the federal bench in Massachusetts. He raised an important question about juror comprehension: Should each juror have a personal copy of the Court's jury instructions and...

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Navigating Massachusetts’ New Parental Leave Law

In April 2015, Massachusetts' Parental Leave Act went into effect. G.L. c. 149, §105D, previously known as the Maternity Leave Act became the Parental Leave Act, applicable to both men and women. The law continues to apply only to employers with six or more employees....

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Restricted Stock Units:  Income for Child Support Purposes

In a recent appeal arising from a post-divorce modification action, Hoegen v. Hoegen (14-P-1491), the Massachusetts Appeals Court decided that income realized from vested restricted stock units (RSUs) must be included in the calculation of child support. In doing so,...

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Mediation Strategy: The First Plenary Session

I recently participated in a panel discussion for a mediation course at a local law school. A well-known full time mediator and a U.S. federal magistrate judge who regularly conducts mediations in the federal court were with me. A highly engaged class of law students...

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Mass. Gen. Laws c. 93A, Section 9 versus Section 11

Massachusetts General Laws Chapter 93A, § 2 ("Chapter 93A") states: "Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." From that simple statement, numerous acts and practices...

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Judge Vacates Major League Baseball Arbitral Award

As this blog has chronicled in the past, it is extremely difficult for an arbitral award to be vacated. The Federal Arbitration Act and many state arbitral acts provide very limited grounds for vacatur, as courts are reluctant to second-guess an arbitrator's decision....

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Division Of Banks Told That Hearings Are Not Optional

A Superior Court judge recently expressed little patience with the Massachusetts Division of Banks's (the "Division's") failure to hold a hearing prior to issuing cease and desist letters, calling it "disturbing" that two statutes requiring hearings "were completely...

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The Specialized Role of the Business Litigation Session

Suffolk Superior Court in Boston is home to an innovative session called the Business Litigation Session, commonly abbreviated as "BLS". Brought about by the advocacy of administrative judges, civil litigators, and leaders in the business community, the BLS has served...

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Things to Look for in a Home Improvement Contractor

Most people don't realize that there are a series of important facts they should know about their building contractor before hiring them to build or renovate their home. First, make sure that the contractor you are dealing with is registered with the state as Home...

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MERS Requires No Authorization to Assign Mortgage

A Judge of the Massachusetts Superior Court, relying on earlier Massachusetts Appeals Court cases, has held that Mortgage Electronic Registration Systems, Inc. ("MERS") does not need authorization from the holder of the promissory note secured by a mortgage before...

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Partitioning Real Estate Owned By A Trust

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

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Financial Stress and Divorce

Financial stress is often cited as a leading cause of divorce. Financial stress can have an extreme impact on a relationship. It can eventually wear away at the love and affection that one has for another because of how consuming the issue can be in someone's life -...

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Appeals Court Favors Employee In Overtime Dispute

A recent Appeals Court decision should serve as a warning to employers about the importance of clarity in communications with employees concerning policies on overtime pay and timekeeping. In Vitale v. Reit Management & Research, LLC, 2015 WL 4946051 (2015), the...

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International Jurisdiction and the FIFA Indictment

Shortly after New York Attorney General Loretta Lynch's 47-count indictment involving FIFA (Fédération Internationale de Football Association) was announced in May, legal insiders and outsiders alike were asking how the U.S. was able to coordinate the arrests of...

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Challenging An Arbitration Award

Alternative dispute resolution is rightly gaining steam as an efficient, fair mechanism for the resolution of complex business disputes. Many companies are redrafting their standard-form contracts to include mandatory arbitration clauses. This is particularly true for...

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Child Support When Combined Gross Income Exceeds $250,000

In a recent decision, a panel of the Massachusetts Appeals Court considered a Probate and Family Court's modification judgment ordering the payment of additional child support that was calculated based upon the portion of the parties' joint income in excess of...

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Changing the Vocabulary Around Non-Custodial Parenting

In negotiating parenting plans for nearly 20 years, I have gradually eliminated a few different words from my vocabulary. For example, it's been a long time since I've used the words "visit" or "visitation" to describe what a non-custodial parent does when he or she...

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Family Law Arbitration

I recently returned from the American Academy of Matrimonial Lawyers Arbitration Training Institute as a Certified Family Law Arbitrator. A few words about family law arbitration: Arbitration falls within the category of alternative dispute resolution ("ADR"). It can...

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Challenging A Zoning Decision In Boston

Local zoning decisions can radically change the landscape of neighborhoods, and challenging a local zoning board's decision in the Commonwealth's courts poses several procedural traps for the unwary. This is particularly true for challenging zoning decisions issued by...

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Issues With Interpretation international Arbitration

A central feature of international arbitration is the presence of counsel, parties, and even arbitrators who hail from several different countries. Frequently, more than one nationality is represented at the arbitral hearing, and with that diversity come a host of...

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Homestead Estates in Massachusetts

Whether a litigant is seeking to enforce a judgment or protect assets from creditors, it is important to be aware of the implications of a homestead estate. Also referred to as homestead protection, a homestead estate safeguards part of a person's or family's primary...

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Domestic Violence Leave in Massachusetts

In August 2014, An Act Relative to Domestic Violence was signed into law and became effective immediately. Section 10 of the Act, codified at G.L. c. 149, §52E, created new protections for an employee who is, or whose covered family member is, a victim of abusive...

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SJC Interprets and Upholds ‘Obsolete Mortgage’ Statute

Where a mortgage states the term of its underlying debt but includes no separate statement of its own term, the two are one-and-the-same, the Massachusetts Supreme Judicial Court (the "SJC") has decided in an opinion interpreting and upholding the so-called "obsolete...

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Adoption Notice to Sperm Donor Not Required

In a case entitled Adoption of a Minor, SJC-11797, slip op. (May 7, 2015), the Massachusetts Supreme Judicial Court decided that lawful parents (a married same-sex couple) of a child conceived through in vitro fertilization are not required to give notice to a...

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Massachusetts Guide to Evidence

Massachusetts is one of the few states that has not adopted some version of the Federal Rules of Evidence. The rules of evidence in Massachusetts are not codified, meaning that evidentiary issues are governed by common law. In 1982, the Supreme Judicial Court ("SJC")...

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Using a QDRO to Collect Attorney’s Fees

In Silverman v. Spiro, 438 Mass. 725 (2003), the Massachusetts Supreme Judicial Court held that a judge can enter a qualified domestic relations order (QDRO) requiring a party in a domestic relations dispute to pay the other party's attorney's fees and costs...

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Determining the Value of Real Property in Divorces

In divorces, determining the value of real property (the marital home, for example) may become a key issue. While a seemingly simple concept, the term "value" may have several different meanings depending upon the context in which its used in litigation, and...

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Parenting Plans for Special Needs Children

Two renowned psychologists who work with children in the context of divorce and separation, Daniel B. Pickar, PhD, ABPP and Robert L. Kaufman, PhD, ABPP, presented a seminar at the 50th Anniversary Conference of the Association of Family and Conciliation Courts in Los...

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What Is The “Value” Of Real Property?

In litigation, such as contract disputes, construction disputes and divorces, determining the value of real property (like the value of a marital home, for example) may become a key issue in the case. While a seemingly simple concept, the term "value" may have several...

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New Study Provides Important Empirical Data on Arbitration

The private nature of arbitration means that there is typically less information available-- to lawyers, their clients, and the public -- about the practices and preferences of arbitrators. A recently published study on arbitration, described by authors Thomas J....

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Changes to Mass. R. Civ. P. 45

The Supreme Judicial Court recently amended Rule 45 of the Massachusetts Rules of Civil Procedure, effective as of April 1, 2015. The most significant change in the amended Rule 45 is the allowance of "documents only" subpoenas to non-parties. Previously, if only...

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Argument Foreclosed Where Party Did Not Appeal

A recent SJC decision illustrates the unfortunate position in which a party may find itself when it fails to file an appeal but finds itself before an appellate court nonetheless as a result of an appeal filed by the opposing party. In Town of Athol v. Professional...

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Massachusetts Appeals Court Reaffirms MERS Mortgage System

The Massachusetts Appeals Court has reaffirmed its holding in Sullivan v. Kondaur Capital Corp., 85 Mass.App.Ct. 202 (2014), that mortgagors have standing only to challenge assignments of their mortgages that are void, not merely voidable, and that the Mortgage...

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Do Violations of the Building Code Violate Chapter 93A?

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

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Earned Sick Time For Employees

In November 2014, Massachusetts voters approved a ballot question that requires all private sector employers to provide employees with up to 40 hours of sick leave per calendar year. Under the new law, which goes into effect July 1, 2015, employers of 11 or more...

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Appeals Court Affirms Application of Second Look Doctrine

The Appeals Court recently affirmed a Probate and Family Court judge's decision -- made pursuant to the "second look" doctrine -- to award a wife $400,000 as a substitute for the principal residence that she was to receive according to the letter of the parties'...

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Who Decides the Arbitrability of Class Action Lawsuits?

In a recent case, the California Court of Appeal for the Fourth Appellate District handed down a decision involving the question of whether the court or the arbitrator decides if a case involving a class action can be arbitrated when the arbitration agreement is...

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Surviving Alimony Agreements

The Massachusetts Appeals Court recently upheld the "non-modifiability" of surviving alimony agreements under the Alimony Reform Act of 2011 ("act"). The case is called Lalchandani v. Roddy. Specifically, the court in the Lalchandani case cited to Section 4(c) of the...

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What is LEED Certification?

LEED, which stands for Leadership in Energy & Environmental Design, is a certification program that recognizes and promotes environmentally sound building and design practices. Developed by the U.S. Green Building Council, LEED certification is available not only...

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No Long-Arm Jurisdiction Over Out-of-State Internet Author

A judge recently held that the Massachusetts Superior Court did not have long-arm jurisdiction to hear a defamation claim against several non-residents who allegedly published false, defamatory statements about a Massachusetts resident on the Internet. See Arthur v....

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SJC Says Springfield Foreclosure Ordinances Are Preempted

In a decision handed down earlier this month, the Supreme Judicial Court (the "SJC") has held that two foreclosure-related local ordinances enacted by the City of Springfield (the "City") are preempted by existing Massachusetts statutes.In Easthampton Savings Bank...

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Changes to Voir Dire in Massachusetts Superior Court

Earlier this month, the Supreme Judicial Court announced an interim procedure to implement Chapter 254 of the Acts of 2014 -- i.e., a new statute, effective February 2, 2015, which grants attorneys and self-represented litigants the opportunity to participate in juror...

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Children’s Passport Issuance Alert Program

Helping to prevent possible international parental child abductions is the U.S. Department of State's Children's Passport Issuance Alert Program (CPIAP). CPIAP provides a mechanism for a parent(s) and/or legal guardian(s) to be contacted and alerted when someone...

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Can I Buy a Tesla in Massachusetts?

The Commonwealth's highest court, the Massachusetts Supreme Judicial Court, recently answered that question in the affirmative. On September 15, 2014, the Court decided Massachusetts State Automobile Dealers Association, Inc. v. Tesla Motors MA, Inc., 469 Mass. 675...

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Overcoming Language Barriers international Arbitration

As with any cross-border endeavor, language barriers can become a hurdle to overcome international arbitration and litigation. The dispute resolution clause in a contract may compel the client to arbitrate or litigate in a country other than their own. Arbitrators,...

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A Practical Guide to Selecting an Arbitrator

One of the many advantages of arbitration over litigation is that the parties to a dispute have the opportunity to choose the arbitrator or arbitrators who will decide their claims. The selection of an arbitrator is a critical decision point that necessarily occurs...

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UCC Section 4-406(f) Reporting Requirement Has Teeth

While Section 4-111 of the Uniform Commercial Code ("UCC") contains a three-year statute of limitations for filing claims against a bank for paying an unauthorized or altered item from an account, a more potent tool for banks can be found in UCC 4-406(f), a one-year...

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The Civil Aspects of International Child Abduction

The Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") is a multilateral treaty. The signatory countries cooperate in returning children to their home country for custody proceedings. The United States assisted in drafting...

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Stages of a Lawsuit (Part 2)

In an earlier post, we discussed the initial pleadings and discovery stages of a lawsuit. This post will address the pre-trial and trial stages. The Pre-Trial StageBy the time discovery ends, the parties should have an understanding of what evidence, including...

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Appeals Court Reverses Conflicting Contempt Finding

In a recent decision [Hoort v. Hoort, Mass. App. Ct., No. 12-P-1853, slip op (May 28, 2014)], the Massachusetts Appeals Court reversed a Probate and Family Court Judge's finding of civil contempt against a husband, when the husband was not found in contempt for the...

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Rights of First Refusal in Parenting Plans

One of the main issues facing divorcing and separating parents is to establish a parenting plan when each party provides care and custody for his or her children. There are a number of different parenting plans that can be negotiated or ordered. Under any such plan,...

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Stages of a Lawsuit (Part 1)

Most first-time litigants are unfamiliar with the process by which a lawsuit moves from filing to resolution. While every lawsuit is unique and different courts have different rules governing litigation procedure, most lawsuits in most courts follow a similar path...

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Comic Demonstrates Child-Centric Approach to Divorce

Louis C.K., one of my favorite standup comics, and the star of the FX series, "Louie," has a serious side. It stems in part from his experience as a divorced dad of two young girls and the effective co-parenting relationship that he has with their mother. In a recent...

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Obtaining Discovery From Non-parties For Use In Arbitration

Party discovery in arbitration is quite limited, particularly in comparison to the scope of discovery permitted by the Federal Rules of Civil Procedure. However, to what extent can an arbitrator order a third party - who, it should be noted, never agreed to arbitrate...

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Massachusetts Appeals Court Upholds MERS Mortgage System

The Massachusetts Appeals Court has joined the U.S. Court of Appeals for the First Circuit in upholding the Mortgage Electronic Registration Systems, Inc. ("MERS") business model under Massachusetts law. Explicitly referencing the First Circuit's decision in Culhane...

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Proposed Bill Prohibits Sex in Marital Home

A Massachusetts state senator has filed a bill that could prohibit a divorcing parent from having sex in his or her own home. The bill states: "In divorce, separate, or 209A proceedings involving children and a marital home, the party remaining in the home shall not...

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Massachusetts Partition Actions: Division of Sale Proceeds

Massachusetts partition actions do not always end with the court-ordered sale of the real estate in question. After a property being partitioned is sold, the proceeds of the sale must be divided between the co-owners. The law presumes that the proceeds should be...

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RICO Claims By Government Agencies Against MERS Fail

The United States Court of Appeals for the 5th Circuit has held that government land recording offices cannot state a claim under the federal RICO statutes for loss of revenue due to fewer filing fee revenues or for allegedly inaccurate records. Welborn v. Bank of...

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New MA Domestic Violence Bill

With unanimous approval, members of the Massachusetts House of Representatives recently advanced An Act relative to domestic violence, new legislation aimed at preventing domestic violence (the "Act"). Said to be driven by the high profile case of Jared Remy, who is...

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Electronic Submissions to the Appeals Court

The Massachusetts Appeals Court requires some pleadings to be filed electronically, rather than through hard copy. Although the Standing Order concerning electronic filings has been effective for nearly three years, it is still a confusing process that is ripe for...

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Commencement of Appeal Period

The Supreme Court of the United States issued a recent decision answering the question of whether an appeal period begins after a court determines the merits of the case or after it awards attorney's fees and costs.In Haluch Gravel Co. et al. v. Central Pension Fund...

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A Primer on Bitcoin

Bitcoin is a relatively new 'cryptocurrency' in which in which encryption technology enables consumers and businesses to exchange goods for currency over the Internet without having to rely on the element of trust in order to ensure payment. Users buy Bitcoins and...

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Child Abduction: The FBI’s Child ID App

According to the United States Department of Justice, each year about 350,000 children are abducted against the backdrop of divorce or separation. The FBI's first mobile application, which is free and available in iPhone and Android versions, helps the authorities...

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Massachusetts Partition Actions: An Overview

A partition action is a legal proceeding to force the sale of real estate that is held by multiple owners, and to fairly divide the sale proceeds among the owners. A partition action is often used a last resort when one or more owners want to sell, but cannot agree...

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Who gets the engagement ring?

We've been asked the question "who gets the engagement ring?" by a number of clients whose engagements have been terminated prior to marriage. As so often is the case in family law, the answer to that question is "it depends."The starting point in the legal analysis...

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Easement Dimensions Are Not Necessarily Set in Stone

In a recent decision handed down in January 2014, the Supreme Judicial Court (the "SJC") has expanded on its well-known holding in M.P.M Builders, LLC v. Dwyer, 442 Mass. 87 (2004), to decide that an owner of registered land burdened by an easement can modify the...

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Post-Oral Argument Letters to the Panel

I recently attended a continuing legal education seminar where the Clerk of the Massachusetts Appeals Court, Joseph Stanton, provided useful information concerning post-oral argument letters, often described as "16L Letters." "16L Letters" originate from Rule 16(l) of...

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Limited Issues Settlement Conferences

Settlement conferences in pending divorce and family law cases often result in the parties entering full and final settlement agreements. The parties in such a case appear at an uncontested hearing when they ask the Judge to approve and incorporate their signed...

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Parental Kidnapping

We live in an increasingly mobile society, and many parents today are raising their children in a different city, state or country from where one or both of the parties grew up. When a marriage breaks down and divorce is imminent, there is sometimes concern that the...

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Modifying Child Support by Joint Petition

Massachusetts Courts allow for the filing of a Joint Petition For Modification Of Child Support Judgment, when both parents agree that an adjustment to an existing child support judgment is warranted. Recent amendments to the Massachusetts Child Support Guidelines...

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First Circuit Finds No Private Right of Action Under HAMP

The First Circuit has affirmed a holding finding that no private right of action exists for homeowner-borrowers under the Home Affordable Modification Program ("HAMP"), bringing clarity on this issue to courts within the Circuit. In the underlying mater, Mackenzie v....

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Optional Appellate Arbitration Rules

The American Arbitration Association recently released Optional Appellate Arbitration Rules, which aim to provide parties with an opportunity to have appeals of an arbitral award heard within the arbitration process itself. Typically, applications to vacate arbitral...

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Child Traveling Abroad with One Parent

Often we are asked by separated or divorced parents, who are vacationing with their children overseas under the terms of their temporary orders or final judgments, whether a parental consent form or permission letter signed by the non-traveling parent is required....

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Motion Practice in the Probate and Family Court

Picture this: it is a Tuesday morning, at 8:30 a.m., and you arrive at the Probate and Family Court with your attorney to appear for a scheduled hearing on a contested motion that you filed. Once you wait on a long line to get through the metal detectors, you enter...

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Affordable Care Act And Child Support Judgments

Massachusetts laws regarding the care, custody and maintenance of children of divorcing or never-married parents specifically address the issue of health insurance, presumptively placing the burden of providing health coverage for an unemancipated child or children on...

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MUTC Allows Co-Trustees to Act by Majority Decision

Many individuals serve as a co-trustee of a trust, such as a family trust holding real estate or a trust of a parent or close friend after their death. Individuals who serve as a co-trustee or, more importantly, are contemplating serving as a co-trustee or successor...

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Parenting Coaches

When parents of minor children separate, and have to establish appropriate parenting plans and make joint legal custodial decisions that are in their children's best interests, it is helpful to engage the services of mental health professionals, who can serve as...

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New Child Support Guidelines

Following what is described as a comprehensive review of the Massachusetts Child Support Guidelines Task Force, the Chief Justice of Massachusetts Trial Court released new Child Support Guidelines that became effective on August 1, 2013. In the Trial Court's June 20,...

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Why Hire an Appellate Attorney?

Why should you hire an appellate attorney? You may be happy with your trial counsel, having already worked and developed a good relationship with your trial counsel for months or perhaps years. Plus, your trial counsel already knows the facts of your case. There are,...

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Misuse of Escrowed Funds Lands Contractor in Prison

In an apparent case of first impression, the Massachusetts Appeals Court has ruled that a building contractor who misuses his customers' escrowed funds incurs not only civil liability for breach of contract and the like, but also criminal liability for "fiduciary...

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Modifying Alimony Orders of Other States

With the enactment of the Alimony Reform Act of 2011, almost every former spouse with an alimony order has questioned whether he or she may be subject to the relief from, or the loss of, support payments under the new law. While the provisions of the Act clearly apply...

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Appraisers Have Final Say on Lease Extension Rent

A panel of the Massachusetts Appeals Court recently grappled with the reviewability of rent-setting calculations performed by professional appraisers pursuant to a commercial lease, and determined that even mistaken appraisers will have the last word so long as they...

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Compelling Arbitration in Massachusetts

Like other states, Massachusetts has enacted an arbitration statute that provides a streamlined procedure for compelling a party to arbitrate. Section 1 of the Massachusetts Uniform Arbitration Act, G.L. c. 251, recognizes two types of arbitration agreements: (i)...

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Preparing for a Successful Mediation

How should counsel and parties prepare for the mediation of a business litigation case? For counsel, the process of mediation requires an entirely different mindset and style than he or she is accustomed to in court proceedings. In fact, a common mistake that...

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Post-Divorce Series: Modification

To make it easier for parties who enter written agreements for modification to have such agreements incorporated into enforceable court judgments or orders, Rule 412 has been expanded beyond judgments and orders regarding solely child support, and now include...

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Stay Classy, Eleventh Circuit: Class Arbitration Allowed

In a major decision, the U.S. Court of Appeals for the Eleventh Circuit recently confirmed an arbitral award that permitted class arbitration when the underlying arbitration clause was silent on the permissibility of class arbitration. By issuing this decision in...

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Class Action Certification Denied To HAMP Plaintiffs

The United States District Court for the District of Massachusetts has denied class certification to a group of individual borrowers alleging that Bank of America mishandled their loan modification requests pursuant to the Home Affordable Modification Program. The...

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Non-compete with inconsistent terms may not be enforceable

A recent Superior Court decision warns employers of the pitfalls that result from using non-compete agreements that contain consistent terms. In ARS Services, Inc. v. Morse, 2013 WL 2152181 (Super.Ct. 2013), Judge Edward P. Leibensperger considered whether to issue a...

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Mortgage Holder Is Not Debt Collector Under FDCPA

The United States Bankruptcy Court for the District of Massachusetts has held that the holder of a mortgage is not a "debt collector" within the meaning of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §1692 et seq. In Re: Gill, Stephen D., et al.,...

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Divorce and the Grieving Process

Generally, attendance at an approved Parent Education Program is required of all divorcing parents of minor children in Massachusetts. To better understand what such a program has to offer, and to learn about the grieving process in the context of divorce, I chose to...

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Mortgage in Default Not Enough for Try Title Action

The First Circuit has held that, under Massachusetts law, a mortgagee's interest in a mortgage in default is inadequate to state a claim under the Massachusetts try title statute. The Plaintiffs in Lemelson, et al. v. U.S. Bank, N.A. filed suit under the Massachusetts...

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The Price of Agreeing to Arbitration

In the recent decision of Oxford Health Plans v. Sutter, the U.S. Supreme Court ruled unanimously that even a "grave error" of an arbitrator is not enough to vacate an award in most cases. Oxford Health Plans had gone to federal court seeking to vacate an arbitrator's...

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Tax Dependency Exemptions

In a case decided last month, the Court held that a Judge of the Massachusetts Probate and Family Court has the authority to order the allocation of tax dependency exemptions for divorced parents. When parents divorce, only one parent is permitted to claim the tax...

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The Foreign Corrupt Practices Act: An Overview

In many parts of the world, cash payments to government officials are not only routine, but required to do business. While some foreign governments may turn a blind eye to such practices, the United States does not. Under the Foreign Corrupt Practices Act (FCPA), both...

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Foreign Corrupt Practices Act: An Overview

In many parts of the world, cash payments to government officials are not only routine, but required to do business. While some foreign governments may turn a blind eye to such practices, the United States does not. Under the Foreign Corrupt Practices Act (FCPA), both...

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AFCC Annual Conference Divorce Resources

I recently attended the 50th Anniversary Conference of the Association of Family and Conciliation Courts (AFCC). AFCC was founded in 1963, and now consists of more than 4,600 members, representing 49 states and 27 countries worldwide. Members include judges, court...

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Emergency Relief in International Arbitration

Before running off to Court to file an emergency request for a temporary restraining order or a preliminary injunction, counsel should consider whether the same relief can and should be sought from an arbitral institution. Start with review of the agreement at issue...

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Prenuptial Agreements

Flowers are blooming, temperatures are rising --- Spring is in the air. Wedding season is upon us - save the date postcards were mailed in January and June wedding dates are just around the corner. Just when you think all the wedding planning is almost complete, one...

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Challenging an Arbitration Award in Massachusetts

Alternative dispute resolution is rightly gaining steam as an efficient, fair mechanism for the resolution of complex business disputes. Many companies are redrafting their standard-form contracts to include mandatory arbitration clauses. This is particularly true for...

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UCC Article 9 Damages Provisions Displace Common Law

In a case handed down just last month, the Supreme Judicial Court reinforced the long-standing rule that provisions of the Uniform Commercial Code (the "UCC") displace common law principles that would otherwise apply in contexts not governed by the UCC. In Reading...

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Adverse Possession: Can My Neighbor Really Take My Land?

Good fences make good neighbors. Unless, of course, the fence sits beyond the recorded lot line and the landowner who is now enjoying a somewhat larger piece of property than is reflected on his or her deed claims title to the extra strip of land on his or her side of...

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GAL Consultants

Custody, visitation and removal cases are often decided based on the investigation and/or evaluation of a court-appointed Guardian ad Litem ("GAL"). GAL Consultants can help clients navigate the process. Probate and Family Court Judges are empowered to appoint a GAL...

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How Long Will My Appeal Take?

A party must act quickly to appeal an adverse judgment. Rule 3(a) of the Massachusetts Rules of Appellate Procedure requires that a Notice of Appeal be filed within 30 days with the clerk of the lower court. This is the most important deadline of the appellate...

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Bank Not Liable to Customer’s Employee for Negligence

A bank is not liable to its customer's employee, who was fired for negligence with respect to the employer's deposits, the Appellate Division recently held in Dennen v. TD Bank Gloucester, 2013 WL 865318 (2013). Plaintiff Frederic Dennen sued TD Bank after being fired...

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Old Common Law Applied to Current Problem

In a case decided earlier this year, the Appeals Court held that common law precedent some might deem "archaic" lives on in its applicability to structures built prior to 1978 that could, under today's standards, create an actionable water nuisance. In Graziano v....

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Foreign Legal Consultants in Massachusetts

In our modern global economy, many Massachusetts companies are finding themselves with a need not only for legal advice concerning Massachusetts and U.S. law, but also for legal advice concerning international law and the local laws of foreign countries in which they...

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Domicile

The domicile statute in Massachusetts can be surprisingly confusing, especially when couples often own multiple homes, live in separate cities for professional reasons, or have recently moved to Massachusetts. All of these situations are governed by M.G.L. c. 208, § 4...

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Hidden Defects May Invalidate Deeds

Recording real estate deeds in a county registry is intended, among other things, to prevent fraud and ensure that a prospective buyer can verify that the seller actually owns the property for sale. In the rare case where a seller sells a property twice, if the first...

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Property Owned in Family Trusts – A Recipe for Conflict

When parents or grandparents are able to pass down residential property to their children and grandchildren, it should be a piece of the American Dream come true. And, with foresight, good planning, and a little bit of luck, it can be. Too often, however, these...

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The Public Records Law: A Powerful Pre-Discovery Tool

The Massachusetts Public Records Law (or PRL) provides an often overlooked, simple, cost effective and powerful tool for litigants to investigate claims and gather pertinent documents even before the commencement of a lawsuit. Like its federal analogue the Freedom of...

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Proposed Amendments To Supplemental Probate Court Rule 412

Amendments to Supplemental Probate Court Rule 412, which currently provides the method by which a child support judgment may be modified by agreement, may soon be expanded to include a method by which parties to an action may seek to modify, by agreement, any judgment...

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No Implied Covenant Before Mortgage Note Executed

Massachusetts' implied covenant of good faith and fair dealing does not apply to negotiations and contract preparations for a mortgage and accompanying promissory note, the First Circuit has held. In Latson v. Plaza Home Mortgage, Inc., the plaintiffs filed suit...

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Name Change After a Divorce

I recently read an article in the New York Times entitled "When the New You Carries a Fresh Identity, Too" written by Megan L. Wood that raised interesting questions about divorcing women and a name change after a divorce. The article brought up the fact that many...

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Even Technical Errors Can Invalidate Foreclosure

Even technical errors in mortgage and foreclosure documents can invalidate the foreclosure and subsequent sale of a condominium unit, according to the Massachusetts Housing Court. Following foreclosure, and purchase at the foreclosure sale by the foreclosing bank, the...

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Pre-Teen Parenting Plans

In a recent custody case we litigated in the Massachusetts Probate and Family Court, a case in which the parties' minor child is a smart, articulate, athletic and very talented 11-year-old boy, an excellent resource published by the Association of Family and...

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As Beach Disappears, So Do Property Rights

In a case decided just last week, the Supreme Judicial Court (the "SJC") rejected the Plaintiffs-Appellants' contention that they held an interest in a "moveable" beach lot that shifted with the sands as the original lot disappeared into the Atlantic Ocean. In White...

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Arbitration Rules for Outer Space

The Permanent Court of Arbitration ("PCA"), an intergovernmental body based in The Hague and established by treaty over a century ago to provide international dispute resolution services, has recently issued the first set of rules specifically designed to govern...

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Liability for Payment of Note Required to Rescind Mortgage

A mortgagor who is not personally liable for payment of the note securing a property loan cannot rescind the loan transaction or mortgage, the United States Bankruptcy Court for the District of Massachusetts has held. In re Smith-Pena v. Wells Fargo Bank, N.A.In re...

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SJC: Release of Wage Act Claims Requires Specificity

In the recent decision Crocker v. Townsend Oil Company, Inc., the Massachusetts Supreme Judicial Court held that a general release that intends to release claims under the Massachusetts Wage Act, M.G. L. c. 149, §148 ("Wage Act") will be enforceable as to those claims...

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Arbitration Clauses Binding on Contract Assignees

Mandatory arbitration clauses present in contracts are binding on assignees of those contracts, even where the transfer agreements assigning those contracts do not themselves contain arbitration clauses, the United States Court of Appeals for the First Circuit has...

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Parallel Parenting Plans

Studies indicate that parents who make disparaging comments about each other, engage in verbal altercations in the presence of their children, place the children in the middle of parental disputes, encourage protective behavior by the children in favor of one parent...

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First Circuit Court of Appeals Hears Culhane Case

A panel of the United States Court of Appeals for the First Circuit heard oral argument in the matter of Oratai Culhane v. Aurora Loan Services of Nebraska earlier this week. The panel was comprised of Chief Judge Hon. Sandra L. Lynch, Senior Circuit Judge Hon. Bruce...

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EFTA Amendments to Deter Serial Plaintiffs

Banks and other financial institutions that maintain ATMs got good news from Congress to close out the year. On December 11, 2012, the Senate passed H.R. 4367 by unanimous consent, following passage by the House of Representatives in July. The bill now moves to the...

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Motion for Counsel Fees Pendente Lite

All clients involved in litigation need money to pay their counsel's legal bills, which include the initial retainer fee, fees incurred during the pendency of the litigation, and often replenishing the retainer fee. A client obtaining a divorce, however, has a unique...

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How to Keep Your Arbitral Proceedings Confidential

Aside from the flexibility to tailor the process to the particular needs of the case, arbitration also enjoys another major advantage over litigation: The ability to keep the proceedings confidential. Although a party involved in litigation can move to seal the court...

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Unmarried Parents and Unequal Treatment in Custody Disputes

Research published by the Centers for Disease Control and Prevention earlier this year found that nearly one in four first-born babies, or 22 percent, are born to unmarried parents living together. A growing cultural acceptance of having children out-of-wedlock has...

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Instagram’s New Terms of Service Anger Users

Social media users are fuming over changes in the popular photo-sharing and social networking website Instagram's Terms of Service. The most talked-about change appears to give Instagram the right to sell users' photographs to third parties for use in advertisements:...

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Nokia Sues RIM to Enforce International Arbitration Award

Finnish company Nokia Oyj recently commenced what could be a protracted battle to enforce an international arbitration award won last month against Blackberry-maker Research in Motion Ltd. ("RIM"). In late November, Nokia sued RIM in federal court in California to...

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The Best Interests Legal Standard

Often we hear about the best interests legal standard that Judges in the Probate and Family Courts apply to make important decisions affecting the lives of minor children. Custody determinations and appropriate parenting plans are based on this guiding principle....

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A Massachusetts Statute of Limitations Checklist

In evaluating any business litigation matter, one of the first and most critical points to consider (as a plaintiff or a defendant) is whether any aspect of the case may be untimely because it is barred by operation of a statute of limitation. Too often, plaintiffs...

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A Treaty for Enforcement of Judgments Abroad

The litigation of international disputes in U.S. Courts is often disfavored for the simple reason that the enforcement of judgments abroad is notoriously difficult. International arbitration is the preferred alternative to litigation because the United States, along...

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Venue for a Petition for Partition in Massachusetts

Parties who bring a petition for partition in Massachusetts have the choice under G.L. c. 241 of filing the action in either the Land Court or in the Probate and Family Court. As to the Probate court, venue is proper in the Probate Court of any county where any part...

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Orders to Vacate the Marital Home

In many divorce cases, when one party tells the other that the marriage has irretrievably broken down and there is no chance of reconciliation, the other party will voluntarily vacate the marital home. Often the primary caretaker of the minor children remains in the...

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Australia As An Emerging Arbitration Venue

Australia may be the seat for many an arbitration in the next few years, thanks to a concerted effort by both the Australian government and the Australian Centre for International Commercial Arbitration (ACICA) to promote their country as the next up-and-coming venue...

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Demystifying the Massachusetts Appellate Process

Often attorneys and clients think of the appeals process as an abyss - a long, uncertain process where they wait many months (or years) for a final resolution of their legal case. Although a typical trip to the Massachusetts Appeals Court is by no means quick, the...

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Avoiding the Pitfalls of Stepped Dispute Resolution Clauses

The dispute resolution clause in commercial contracts is very often inserted at the last minute without much attention given to the implications of the particular language contained in the clause. It is increasingly common to see "stepped" dispute resolution clauses,...

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Preferred Practices international Arbitration

Over the last eight months, the School of International Arbitration at Queen Mary, University of London conducted a comprehensive and wide-ranging survey on issues germane to international arbitration - particularly on current and preferred practices in the field. The...

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A ‘Well-Heeled’ Divorcee and Mandatory Self-Disclosure

Beth Shak, a famous World Series of Poker player and aficionado of expensive, designer shoes, who has been featured on MTV Cribs and Millionaire Matchmaker, is in the news again, and she gives us food for thought regarding Mandatory Self-Disclosure and Financial...

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Read (and Draft) That Forum Selection Clause Carefully!

The Massachusetts Appeals Court has ruled that a party to a business contract could file suit in Massachusetts even though the contract specified that "jurisdiction shall vest in the State of Illinois." The Appeals Court held that the "jurisdiction shall vest"...

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Foreign Judgments Recognition Law Due for Update

The Commonwealth's policy regarding the recognition and enforcement of money judgments rendered by foreign courts has suffered from lack of clarity, as shown in the current version of the Uniform Foreign Money-Judgments Recognition Act, Mass. Gen. Laws ch. 235, sec....

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Alimony and Cohabitation

Will an alimony recipient's cohabitation with another result in the termination of alimony? With the implementation of new alimony legislation in Massachusetts, many are left wondering whether an alimony obligor/payor may immediately seek to terminate his/her existing...

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Dubai Forum Gains Global Momentum

The Dubai International Financial Centre (DFCI) is quietly emerging as a dispute resolution forum of choice international contracts involving companies based in the Middle East. The DFCI's location in one of the fastest-growing areas of the Middle East makes it an...

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Important Changes Brought About By The CORI Reform Law

The final changes brought about by the CORI Reform Law went into effect on May 4, 2012 and, with those changes, how employers access and use a job applicant's criminal history has changed. Employers must comply with the new procedures or may face fines up to $50,000....

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Supreme Court Reaffirms FAA’s Pro-Arbitration Policy

In a harshly worded per curiam decision, the U.S. Supreme Court recently reaffirmed the broad reach of the Federal Arbitration Act ("FAA") and restated that the FAA "reflects an emphatic federal policy in favor of arbitral dispute resolution." The FAA is the federal...

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Privacy Settings Do Not Prevent Discovery of Social Media

While millions of Americans have become adept at managing their social network privacy settings to keep their postings hidden from the general public, individuals and companies involved in litigation should not expect those settings to shield information from...

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Supreme Court’s Decision Partial Victory for Obama

On the last week of the current term, the Supreme Court announced its decision in the watershed case of Arizona v. United States, granting the Obama administration a partial victory over the state of Arizona and its efforts to expand the enforcement of undocumented...

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The When of Mediating a Complex Business Dispute

Increasingly the question regarding mediation of a complex business litigation case is not whether but when. Among experienced litigation counsel, there is widespread agreement that mediation should be attempted in many if not most cases. The resources of time and...

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Re-foreclosure as a Remedy: Bevilacqua and Eaton

Last fall, in Bevilacqua v. Rodriguez, 460 Mass. 762 (2011), the Supreme Judicial Court (the "SJC") quashed the hopes of many that a "try title" action available by statute in Massachusetts would provide a mechanism to clear the title of a post-foreclosure owner whose...

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Go-Best: An Important Massachusetts Banking Law Decision

On July 30, the Massachusetts Supreme Judicial Court ("SJC") issued an important decision in a Ponzi scheme captioned Go-Best Assets Limited v. Citizens Bank of Massachusetts, 463 Mass. 50 (2012). The case involved a now-disbarred Massachusetts attorney named Morris...

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The “Same Wrongdoer” Defense In Check Fraud Litigation

In "check fraud" litigation, bank customers often sue their banks after learning that someone has made a forged or otherwise unauthorized signature on the front of one or more of the customer's checks. It often turns out that the fraudster has perpetrated the scheme...

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