The Fitch Briefs
Can a public employer terminate an employee for TikTok, Instagram, or other social media posts predating the employment without offending the First Amendment?
Facts and circumstances cannot be overlooked, but in this jurisdiction, the First Circuit, the answer depends on (i) whether the employee—in the posts at issue—engaged in speech as a citizen on a matter of public concern; (ii) a balancing between the employee’s...
New SEC Amended Rule Attempts to Limit Greenwashing
The purpose of investing in an “ESG” fund – one which considers environmental, social, and governance issues – is to, at the least, reduce the climate risk or harmful impact of one’s investments and, at the most, promote certain policies that align with an investor’s...
What Happens to a Beneficial Trust Interest in a Divorce?
Whether a beneficial interest in a trust is includable in the marital estate for divorce purposes is a question that has typically led to big disputes between divorcing parties. While the answer to that question still rests on the particular facts and merit of a...
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...
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."...
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...
Fourth Circuit Upholds Arbitration Provision for Amazon Contractor
The United States Court of Appeals for the Fourth Circuit recently ruled that an arbitration clause in a contract between Amazon and an independently owned package delivery businesses was enforceable, notwithstanding the Federal Arbitration Act’s (FAA) exemption for...
First Circuit Says Customer List Containing Public Information Is a Trade Secret
On August 29, 2023, the U.S. Court of Appeals for the First Circuit gave an encouraging sign to employers seeking to protect their customer lists from use or disclosure by former employees. In Allstate Insurance Company v. Fougere, the Court held that a customer list...
United States Supreme Court Holds RICO May Be Used In Aid of International Arbitration Award Enforcement
The Supreme Court of the United States recently held in Yegiazaryan v. Smagin that a plaintiff alleged a domestic injury for the purposes of RICO in a case where the activities undertaken to evade enforcement of an international arbitration award occurred in...
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...
Noting “Families Take Many Different Forms,” SJC Affirms Finality of Paternity Judgment in Favor of Non-Biological Parent
In J.M. v. C.G., the Supreme Judicial Court affirmed a Probate Court decision dismissing a biological parent’s suit to establish paternity. The parties in this case were the mother of a child (Amelia), the child’s biological father (M.H.), and the child’s legal father...
Federal Court Sanctions Litigant Who Destroyed Evidence Relating to His Claim
In McLaughlin v. Lenovo Global Technology Inc., plaintiff Daniel McLaughlin sued his former employer, defendant Lenovo Global Technology Inc., alleging Lenovo failed to pay him unpaid commissions and reimburse him for certain business expenses that totaled over...
U.S. Supreme Court Mandates that Federal District Courts Must Stay All Proceedings While an Interlocutory Appeal on Arbitrability is Pending
Coinbase, Inc. operates an online cryptocurrency exchange platform. To gain access to Coinbase’s platform, individuals must create a Coinbase account, which requires them to sign Coinbase’s user agreement. This agreement contains an arbitration clause that requires...
LLCs and Other Unincorporated Associations Present Challenges for Federal Diversity Jurisdiction
Unincorporated associations, such as LLCs, present particular challenges for establishing federal diversity jurisdiction. In BRT Management LLC v. Malden Storage LLC, the United States Court of Appeals for the First Circuit recently reversed a District Court judgment...
In Huang v. Ma, the Supreme Judicial Court Holds that an Oral Real Estate Exclusive Brokerage Contract is Enforceable
Last year, we blogged about a case in which a real estate broker alleged she had a verbal exclusive buyer’s broker contract with clients to represent them in connection with the purchase of a new home. The broker filed suit against the clients after they bought a home...
Non-Competition Agreement’s Geographic Scope Limited by Court
In a recent decision, Genzyme Corp. v. James C. Melvin, the Suffolk Superior Court (J. Salinger) significantly narrowed the geographic scope of a non-competition agreement from the entire United States to the Metro Atlantic Region in response to a motion by Genzyme...
Adopting a permissive view of the long-arm statute, SJC holds Massachusetts has jurisdiction over Michigan car manufacturer
On June 8, Massachusetts’ highest court, the Supreme Judicial Court, held that a Massachusetts court had the authority (jurisdiction) to consider a case involving an out-of-state car manufacturer who sold cars in the Commonwealth. The case, Doucet v. FCA US LLC,...
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...
A Divorced Party Can Pursue A Petition for Partition Despite Signing a Separation Agreement Prohibiting Him From Selling The House Without His Ex-Wife’s Consent
Although any co-owner has the right to partition a property (meaning selling a property through a legal proceeding called a partition action), irrespective of the consent of the other co-owners, there is an exception: a partition action is not available to tenants by...
Nonsignatories May Nevertheless Be Bound By Arbitration Clause, First Circuit Warns
A dispute between New Balance and its Peruvian distributor recently gave the U.S. Court of Appeals for the First Circuit reason to consider whether Massachusetts law would compel nonsignatories to comply with the arbitration clauses of other entities. In the case...
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)....
Is an Evidentiary Hearing Required in a Civil Contempt Proceeding?
In J.D.M. v. J.A.M. (April 12, 2023, Rule 23.0 Decision), the Massachusetts Appeals Court vacated the Probate and Family Court’s judgment of civil contempt and remanded. Pursuant to the parties’ divorce judgment, mother had primary physical custody of the minor...
Class-Action Plaintiffs’ Service Awards Questioned by Second Circuit Ahead of Likely Supreme Court Determination
The United States Court of Appeals for the Second Circuit has upheld the grant of service awards totaling nearly one-million dollars to eight lead plaintiffs in a class action against Visa, Inc. and Mastercard, Inc., while at the same time stating its view that such...
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...
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...
Credit Union Not Liable for Fraudulent Transactions Authorized by Account Holder
The United States District Court for the District of New Jersey has held that a credit union is not liable for transactions that were fraudulently initiated but then authorized by the account holder. The Court found that while the transactions may have been...
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...
HSBC Bank prevails: Massachusetts Federal Court tosses tort claims stemming from wire fraud transfer
Cases in which companies are hacked or otherwise duped into making wire transfers are on the rise. To recover their losses, companies have increasingly resorted to litigation against the banks that receive the allegedly improperly wired funds. Their efforts have...
U.S. District Court Denies Discovery Finding ICSID Tribunal Not Foreign or International Tribunal Under Section 1782
Following the United States Supreme Court decision in ZF Auto. US, Inc. v. Luxshare, Ltd. (“ZF Auto”), where the Supreme Court found that 28 U.S.C. § 1782 (“§ 1782”) did not apply to private international tribunals, the question has remained whether certain...
Employer Cannot Reform or Rescind Employment Contract in Which Employee Mistakenly Entitled to Hundreds of Thousands of Dollars Monthly
The importance of careful contract review and communication with counsel were recently highlighted in the case of Dahua Technology USA Inc. v. Feng Zhang, in which the United States District Court for the District of Massachusetts denied an employer’s attempt to...
How do Courts Treat Unallocated Support in a Modification Action?
In Duval v. Duval (September 23, 2022), the Massachusetts Appeals Court vacated the Probate and Family Court’s decision in a modification action to consider Father’s unallocated support obligation as alimony only and remanded. The parties had entered into a separation...
Penalties for Violation of the BSA Reporting Requirements: On a Per-Form or Per-Account Basis?
The purpose of the Bank Secrecy Act (“BSA”) is, among other things, to require “certain reports or records where they have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings or in the conduct of intelligence or...
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...
Condominium Trust, Management Company, and Concierge Services Provider Have to Duty of Care to Protect Residents from Foreseeable Crimes
The Superior Court recently held a condominium trust, condominium property management company, and concierge services provider owed residents a duty of care to protect against foreseeable crime by third parties who enter through common areas. Dr. Richard Field and Dr....
Getting to Know the Convention on the Contracts for the International Sale of Goods
It is increasingly common for purchases and sales to cross international boundaries. When that happens, what law applies? First, the parties to a contract must look to the contract to determine what law applies. If the contract is silent, the United Nations...
Supreme Judicial Court Forces Delivery Drivers to Arbitrate Claims Against Grubhub
Joining other courts that have addressed the same issue in their own jurisdictions, on July 27 the Commonwealth’s highest court decided Grubhub’s food delivery drivers are not a “class of workers engaged in ... interstate commerce” and, therefore, are not exempt from...
Elon Musk’s Daughter Requests Name Change to Cut Ties With the Tesla Founder.
Earlier this year, Elon Musk’s 18-year-old daughter petitioned a California court to recognize her gender as female, to issue a new birth certificate, and to change her name to eliminate any connection with her father. Her petition further stated that she was...
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...
U.S. Court of Appeals for the Sixth Circuit Addresses the Right of First Refusal Contemplated by the Federal Low Income Housing Tax Credit Program
The federal Low Income Housing Tax Credit Program (LIHTC), IRC §42, was created to encourage the creation of low-income rental housing for low-income households. It provides tax incentives to investors to make equity investments in exchange for tax credits and other...
COVID-19 and War in Ukraine Impact International Arbitration Cases
Last summer, experts predicted a significant uptick in international arbitrations (especially those held via international arbitral institutions) would outlast the COVID-19 crisis. Unfortunately, despite our strongest wish that COVID-19 would be behind us by this...
SCOTUS: Under the FAA, Interstate Commerce is Broader Than the Transportation of Good Across State Lines
Last month, in an 8-0 decision, the United States Supreme Court held that a ramp supervisor for Southwest Airlines belonged to a “class of workers engaged in foreign or interstate commerce.” Thus, the employee was exempt from coverage under the Federal Arbitration Act...
Supreme Judicial Court Finds Attorneys’ Fees Are Not Damages
Where an insurance policy provides coverage for damages because of, e.g., bodily injury, property damage, or advertising injury, does that insurance policy cover attorneys’ fees awarded as a result of a covered claim? The Supreme Judicial Court has just said that it...
In unanimous opinion, Supreme Court champions trial court discretion in international child custody disputes.
On June 15, the Supreme Court in Golan v. Saada resolved a circuit split regarding the application of the “grave risk” exception under the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). Adopted in 1980 and ratified by over...
Employer Ordered to Pay Treble Damages For Late Payment of Wages, Pursuant to Massachusetts Wage Act
The Massachusetts Supreme Judicial Court recently ruled that an employer who failed to pay a discharged employee for accrued unused vacation time until three weeks after the date of her discharge violated the Massachusetts Wage Act. The Court held that the employer...
Statute of Frauds Does Not Require Written Contract to Pay for Services of Licensed Real Estate Broker
The Massachusetts Appeals Court has held that the Statute of Frauds does not require that a contract to pay for the services of a licensed real estate broker be in writing, in Huang v. RE/Max Leading Edge, et al. The Court found that if the broker could prove the...
Granting A New Lease On Life To A Multi-Year, Multi-Court Mortgage Conflict, The First Circuit Permits Homeowners Limited Rule 56(D) Discovery
The conflict in Emigrant Residential LLC v. Pinti (“Pinti III”) began when two homeowners defaulted on the mortgage for their Cambridge condominium and failed to cure the default. During this time, ownership of the mortgage and the note changed hands multiple times....
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...
Due Process Safeguards Are Required When Parental Termination Cases Are Heard on Zoom
Due to COVID-19, the Massachusetts court system has relied heavily on online video conferencing platforms, like Zoom. A recent decision by the Supreme Judicial Court (SJC), Adoption of Patty (decided May 9, 2022), overturned a trial court’s termination of a mother’s...
SCOTUS Holds Section 1782 Does Not Apply to Private International Arbitral Tribunals
In a case anticipated by international arbitration practitioners, the United States Supreme Court unanimously held that only governmental or intergovernmental adjudicative bodies, not private adjudicative bodies, constitute “foreign or international tribunals” under...
Can the Holder of a Life Estate Interest Pursue a Petition for Partition?
The answer is: it depends. The statute governing partition actions, M.G.L. c. 241, authorizes the holder of a life estate to file a petition for partition. For example, when two siblings hold concurrent life estates, their interest can be partitioned from each other....
Supreme Judicial Court Concludes That Anti-SLAPP Statute Does Not Apply to Civil Enforcement Actions By the Attorney General
In a recent decision, affirming the Superior Court, the Supreme Judicial Court concluded that civil enforcement actions filed by the Attorney General are not subject to the constraints of G. L. c. 213, § 59H, also known as the anti-SLAPP statute. In Commonwealth v....
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...
Extended Overdraft Fees Not Interest for Purposes of State Limits on Consumer Loan Interest Rates
The United States Court of Appeals for the 10th Circuit has held, in a case of first impression, Walker v. BOKF NA., that extended overdraft fees that accrue each business day are “non-interest charges” and, therefore, do not violate state limits on interest rates for...
Massachusetts Appeals Court Affirms Judgment Against the City of Lowell for Violating Massachusetts Oil and Hazardous Material Release Prevention Act
In November 2008, the owners of condominium units at Grand Manor and the Grand Manor Condominium Association (collectively, “Plaintiffs”) discovered hazardous material in the land beneath the condominiums, which had been used as a landfill operated by the City of...
Court Addresses Attorney Gender Pay Gap in Attorneys’ Fee Award Decision
In a recent decision awarding attorneys’ fees, a U.S. District Court in Pennsylvania explicitly considered the historic attorney gender pay gap. In that case – Ray v. AT&T Mobility Services, LLC – the plaintiff, Alison Ray, sought a total of $847,945 in attorneys’...
Court Affirms The Extension Of Alimony Obligation Beyond Statutory Durational Limits
In a recent Rule 23 decision, a panel of the Massachusetts Appeals Court affirmed the lower court’s modification judgment that extended husband’s alimony obligation to his former wife beyond the durational limits set forth in Massachusetts’ Alimony Reform Act (M.G. L....
Eastern District of New York Holds Loan Servicers Are Not Debt Collectors If They Acquired the Account When It Was Not In Default
The United States District Court for the Eastern District of New York has held that a loan servicer does not qualify as a debt collector under the Fair Debt Collection Practices Act, 15 U.S.C.A. §1692a (“FDCPA”), where the loans were not in default when the servicer...
What Happens When A Party To A Petition For Partition (Holding Title As Joint Tenant) Dies During Its Pendency?
Co-owners of real estate who no longer want to share title may file a petition for partition. If the property cannot be physically divided, the partition may be done in one of two ways: either one party buys out the interest of the other or the property is sold and...
Zoning Loss for Cannabis Business Due to Predicted “Undue Traffic Congestion”
As part of the recent explosion in cannabis facilities in Massachusetts, in around 2020 Nova Farms sought four special permits from the City of Attleboro. Two of the permits would have enabled Nova Farms to establish a cannabis retail business and a Medical Marijuana...
International Organizations Must Explicitly Waive Immunity For Judicial Enforcement, Modification or Vacatur of Arbitral Awards
The United States Appeals Court for the District of Columbia recently affirmed the dismissal of a case seeking modification or vacatur of an arbitration award in favor of the International Monetary Fund (“the IMF”) on the grounds the IMF had not explicitly waived its...
Massachusetts Superior Court Strikes Down Overreaching Fiduciary Duty Rule
On March 30, 2022, in Robinhood Financial, LLC v. William F. Galvin, et. al., the Massachusetts Superior Court (Ricciuti, J.) struck down the recently adopted Fiduciary Duty Rule (950 C.M.R § 12.207), a state regulation that held brokerage dealers to the same...
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...
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...
Employers Beware: Supreme Judicial Court Holds At-Will Employees Cannot be Terminated for Exercising Statutory Right to File Rebuttal for Personnel File
The Supreme Judicial Court recently reversed the dismissal, affirmed on appeal, of an employee’s action for wrongful termination for exercising his right under G.L. c. 149 § 52C to file a rebuttal to being placed on a performance improvement plan for inclusion in his...
Court Rejects Challenge to Long-Standing “Valid-When-Made” Doctrine
Pursuant to the National Bank Act, the Home Owners’ Loan Act, and the Federal Deposit Insurance Act, the “Valid-When-Made” doctrine has provided that if a loan is valid when it is made it cannot later become invalid or unenforceable because it is sold or assigned to a...
How Does the Land Court Evaluate A Challenge to a Restaurant Permit?
In the recent Essex Land Court decision of McWilliams, et al. v. Town of Rockport, et al., the Court evaluated a challenge to the Rockport Zoning Board’s decision to grant a defendant LLC a special permit allowing it to operate a restaurant with a maximum indoor and...
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...
One Year Redemption Cap for Tax-Foreclosure Does Not Apply if Due Process Denied
In Ithaca Finance, LLC v. Lopez (Decision and Order, January 3, 2022), the Massachusetts Land Court allowed Defendant’s motion to vacate a 2016 Judgment and found that Defendant could redeem the property at issue in accordance with M.G.L. c. 60, § 68. The Land Court...
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...
Robocall Litigation: A Federal Judge Grants Class Certification in TCPA Lawsuit Brought by a Noncustomer against Citibank, N.A.
In response to consumer complaints, in 1991 Congress passed the Telephone Consumer Protection Act (“TCPA”) to discourage and prevent unsolicited advertisement over telephone lines. The TCPA places restrictions on the use of automatic telephone dialing systems, both...
The Court Must Make Specific Findings as to Earning Capacity When Entering a Child Support Order Based Upon Attributed Income
In a recent Rule 23 decision, McCrea v. Clayton, a panel of the Massachusetts Appeals Court vacated and remanded the lower court’s order denying Mother’s motion to alter or amend a modification judgment that required her to pay child support to Father because the...
The Hague Convention: In Lawsuit Against Foreign Parties, Plaintiff Avoids Dismissal Despite Untimely and Ineffective Service of Process Abroad
In Granger v. Nesbitt, the District Court for the District of Massachusetts exercised its discretion to quash service instead of dismissing the case despite the plaintiff’s untimely and improper service on the Canadian defendants. The case involved a car accident that...
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...
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...
District of Massachusetts Holds Text Messages Between Plaintiffs and Third-Parties Not Protected from Discovery as Concerted Activities
The United States District Court for the District of Massachusetts has held that group text messages between plaintiffs and third parties are not protected from disclosure in discovery as “concerted activities for the purpose of collective bargaining or other mutual...
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...
English Views on the Law of the Arbitration Clause: The Curious Case of Kabab-Ji
The general default rule in international law is that the lex arbitri—i.e., the law of the place where arbitration is to take place (the seat)—governs the arbitration and the arbitration clause, while the choice-of-law provision governs the substantive provisions of...
First Circuit Clarifies Standard of Review to be Applied by District Courts in Resolving Motions to Compel Arbitration Under the FAA
The First Circuit Court of Appeals recently clarified the standard District Courts in the circuit should be using to rule on motions to compel arbitration under the Federal Arbitration Act (“FAA”). In Air-Con, Inc. v. Daikin Applied Latin America, LLC, the First...
Does the SAFE Banking Act Go Far Enough for the Massachusetts Cannabis-Related Business Community?
In the Fall of 2021, the U.S. House of Representatives once again passed the Safe and Fair Enforcement (SAFE) Banking Act, with joint support from both parties. And although the Senate has yet to sign off, last month, the bill had 40 co-sponsors therein. The SAFE...
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,...
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...
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...
Massachusetts Appeals Court Concludes Employment Agreement Falls Within Purview of Federal Arbitration Act
In a recent unpublished decision, reversing a Superior Court decision, the Massachusetts Appeals Court concluded that certain agreements did not constitute “contracts of employment” and, therefore, were subject to the Federal Arbitration Act (FAA). In Cuneo v....
Condominium Developer Cannot Unilaterally Expand Time to Complete Phased Development and Add Incomplete Units to Condominium
The Massachusetts Appeals Court recently held in the case of Kettle Brook Lofts, LLC v. Stacy Specht, that a condominium’s master deed and the Massachusetts condominium statute, G.L. c. 183A, invalidated a developer’s attempts to unilaterally extend its time to...
Court Applies Massachusetts 6-Year Statute of Limitations for Breach of Contract Claim Rather Than 3-Year Delaware Limitation Period Even When Contract is Governed by Delaware Law
It is not uncommon for parties to a contract to decide which law will govern their contractual relationship, by including a choice of law provision in the contract. There are some significant differences between state laws: for example, the statute of limitations for...
Waiver Beware: Suffolk County Superior Court Holds Contractor Waived Right to Escape Arbitration
On September 22, 2021, the Suffolk County Superior Court held a contractor would be compelled to arbitrate a dispute with its electrical subcontractor. The decision shows that by taking action consistent with an agreement to arbitrate—in this case arguing the merits...
High Standards: U.S. District Court for D. C. Confirms $85 Million Arbitration Award against Libya
Strabag SE, a large international construction company based in Austria was awarded construction contracts for two major road projects in Libya in 2003. In 2006, after Libya began requiring foreign construction firms to carry out their contracts in conjunction with a...
Should a Pension be Considered an Asset or a Source of Income?
In Booth v. Booth, the Massachusetts Appeals Court vacated the Probate and Family Court’s decision to consider the Husband’s pension as a source of income for alimony purposes in the divorce, as well as the alimony award, and remanded. The parties were married for 35...
Supreme Judicial Court Compels New England Patriots to Arbitrate Dispute with Charter Aircraft Company Despite Never Signing Agreement To Arbitrate
Invoking a doctrine called “direct benefits estoppel,” on July 8, 2021, the Supreme Judicial Court forced the New England Patriots to arbitrate a dispute with charter aircraft company Team 125, Inc. Under direct benefits estoppel, a signatory to an arbitration...
In Employment Discrimination Cases, Judge Rules that Title VII Does Not Supervene Title IX
The United States District Court for the District of Massachusetts recently ruled that Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 – both of which prohibit sex-based discrimination – are separate enforcement mechanisms an...
Can A Probate and Family Court Judge Order a Child to Be Vaccinated Over One Parent’s Objection?
Given that the Pfizer COVID-19 vaccine has now been approved by the Food and Drug Administration for children above the age of 12, many divorced individuals with children in this age range may be wondering: What do I do if my co-parent and I disagree about whether our...
Statue of Repose Precludes Wrongful Death Claim Filed Within Three Years of Death But More Than Six Years After Installation of Water Heater
M.G.L.c. 260, § 2B, also known as a statute of repose, governs tort claims arising from improvements made to real property. The statute of repose was passed to protect providers “of individual expertise” in the business of planning, constructing, and administering...
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...
Barcode Containing Reference Number on Debt Collection Envelope Violates FDCPA
The United States Court of Appeals for the Third Circuit has added to the growing body of law regarding what can and cannot appear on the envelope for a debt collection letter under the Fair Debt Collection Practices Act (“FDCPA”). The FDCPA, 15 U.S.C.A. §...
Declaratory Judgment Suits Require a Private Right of Action
In Source One Financial Corporation v. Geico Indemnity Company (Memo and Order June 30, 2021), the United States District Court for the District of Massachusetts allowed the motion if Geico Indemnity Company, the defendant, to dismiss, determining that Source One...
MA Federal Court Confirms Leniency of Chapter 93A Demand Letter Requirement
In two recent cases, the U.S. District Court for the District of Massachusetts has rejected attempts to throw out consumer protection lawsuits for failure to follow the strict mandates of the Chapter 93A demand letter requirement. Massachusetts’ Consumer Protection...
District Court Finds No Jurisdiction Over Claims Against Foreign Corporate Owner and Operator of Ship in Boston Harbor Accident
The United States District Court for the District of Massachusetts recently dismissed claims against two foreign corporations which owned and operated a ship which damaged a pier in Boston Harbor in 2017, in American Home Assurance Company v. M/V One Helsinki f/k/a...
New Appeals Court Case Addresses Attribution Of Income Where Spouse Had Been Under-Earning In The Years Leading Up To A Divorce
In Davae v. Davae, the husband was a licensed physician, board-certified in the field of diagnostic radiology. While practicing at a medical center, the husband started a teleradiology business. The husband left his hospital practice and started working at his...
First Circuit rules that class arbitration is not implicitly authorized in agreement
In American Institute for Foreign Study, Inc. v. Fernandez-Jimenez, the First Circuit recently affirmed a preliminary injunction enjoining class arbitration because, while the agreement required the parties to arbitrate their disputes, it did not authorize class...
New Child Support Guidelines Will Become Effective On October 4, 2021
In accordance with federal regulations (i.e., 45 CFR, § 302.56), the Massachusetts Child Support Guidelines Task Force has completed its quadrennial review of the Massachusetts Child Support Guidelines (“Guidelines”). On August 2, 2021, the Trial Court released...
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,...
Use of Pre-Existing List of Numbers Does Not Qualify as Automatic Telephone Dialing System in Violation of the Telephone Consumer Protection Act
Relying on the United States Supreme Court’s decision in Facebook, Inc. v. Duguid, the United States District Court for the Western District of North Carolina has found that Bank of America, N.A.’s system used to place alleged debt collection calls does not qualify as...
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...
Update: President Biden Signs Joint Congressional Resolution Striking Down “True Lender” Rule
In late 2020, the Office of the Comptroller of the Currency (OCC) issued the “true lender” rule, which was immediately met with criticism. Shortly thereafter, several State Attorneys General, led by New York Attorney General Letitia James, sued the OCC seeking to...
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...
D.C. Circuit Court of Appeals Affirms Dismissal Under Foreign Sovereign Immunities Act of Claims Against Ukraine by Ukrainian Nationals and Their American Business Partners
The United States Court of Appeals for the District of Columbia (“the D.C. Circuit”) recently affirmed the dismissal of claims brought against the Ukrainian government by Ukrainian nationals and their American business partners in the case of Ivanenko v. Yanukovich....
SJC Concludes That Short-Term Rental Homeowner’s Duty Did Not Extend to Protecting Decedent from Harm Caused by Third Party
Over Memorial Day weekend in 2016, the defendant rented out his property to Woody Victor and five friends for what was supposed to be a college reunion party. Instead, the pool party attracted over one hundred attendees and around 3 AM, the police received a report...
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...
Can One Party in a Divorce Action Be Held in Contempt for Failure to Communicate “Respectfully” With Their Ex-Spouse?
This issue was addressed in a recent Massachusetts Appeals Court Memorandum and Order Pursuant to Rule 23.0. In the unpublished case of Parker v. Parker, the Appeals Court considered whether or not the defendant father could be held in contempt for failing to...
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...
First Circuit Court Of Appeals Upholds Fraud Convictions, Finding No Actual Or Implied Juror Bias
In U.S. v. Kuljko, the defendant, a “convicted fraudster who hornswoggled dozens of victims out of millions of dollars,” requested that the Court of Appeals for the First Circuit vacate the jury’s guilty verdict, in part due to the trial court’s failure to dismiss a...
Implications of Working Out-of-State on Shared Parenting Plans
The increase in housing prices in Massachusetts and the ability to work remotely has afforded many people the opportunity for out-of-state home ownership in lower cost-of-living locations. However, for parties with a shared parenting plan the calculus surrounding...
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...
U.S. Supreme Court to Weigh in on Federal Eviction Moratorium
A group of Alabama and Georgia realtors have asked the U.S. Supreme Court for emergency relief in their lawsuit now pending on appeal before the U.S. Court of Appeals for District of Columbia Circuit. The realtors sued the U.S. government, challenging the legality of...
Seeking Specific Performance of a P&S Agreement When the Seller Failed to Show Up at Closing
A real estate sales contract must comply with the Statute of Frauds, meaning that it must be in writing, contain a description of the property and the agreed-upon price. Further, the parties must intend to be bound by the contract. Unless the seller has a legal...
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...
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...
Settlement of FDCPA Claim Does Not Qualify as a “Successful Action” Entitling Plaintiff to Attorney Fees
The United States Court of Appeals for the Fifth Circuit recently held that a private settlement on favorable terms for the plaintiff does not qualify as a “successful action” triggering the fee shifting provisions of the Fair Debt Collection Practices Act (“FDCPA”)...
Massachusetts Supreme Judicial Court Clarifies When Statute of Limitations Clock Begins Running in Multi-phase, Multi-building Real Estate Development Projects
Last year, I wrote about the case of D’Allessandro v. Lennar Hingham Holdings, LLC, where United States District Court for the District of Massachusetts held that the statute of limitations under G.L. c 260 § 2B did not begin running until the entire multi-phase,...
Appeals Court Draws Further Distinction Between A Clerical Error And Substantive Error In A Judgment
In the recent case Keohan v. Whalen, the parties’ original divorce judgment provided that alimony would be calculated based on the difference of the parties’ earned income by applying the following percentages: Difference in the Parties’ Earned Incomes % - Up to...
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...
District Court Holds That Plaintiff Failed to Prove She Experienced a Hostile Work Environment
In a recent Memorandum and Order issued by the United States District Court for the District of Massachusetts, the Court ruled on a summary judgment claim brought by the defendant in the case of Gunter v. Shapley & Stern, Inc. The defendant, a furniture and carpet...
Eleventh Circuit Court Of Appeals Holds Plaintiff’s FCRA Claim Was Subject To Provision In A Subscriber Agreement That Terminated Years Before His Claim Arose
In Michael Hearn, et. al. v. Comcast Cable Communications, LLC, the United States Court of Appeals for the Eleventh Circuit reverses a recent decision from United States District Court for the Northern District of Georgia and ruled that a putative class action brought...
Statute of Frauds No Bar to Claim for Breach of Oral Contract to Transfer Delivery Agreement
The United States District Court for the District of Massachusetts recently held that a promissory estoppel claim for assignment of a contract was not barred by the Statute of Frauds. The Court held that, where the complaint did not allege that the parties had any...
Massachusetts Federal Court Asked to Enforce Chinese Arbitration Award
In a request that highlights the benefits of international arbitration, Plaintiff Jiewen Lin has filed a Petition to Confirm and Enforce a Foreign Arbitration Award against several Defendants. The case is pending before Judge O’Toole in the U.S. District Court for the...
Are you a Borrower under RESPA if you are on the Mortgage but not the Note?
In Pittner v. Castle Peak 2012-1 Loan Trust (Memo & Order April 14, 2021), the United States District Court for the District of Massachusetts awarded summary judgment to Defendants, Castle Peak 2012-1 Loan Trust and Selene Finance LP, on Plaintiff’s claims of...
Judge Rules Legal Sea Foods is Not Entitled to Insurance Coverage for Pandemic-Related Losses
In early March 2020, Legal Sea Foods (Legal) signed an insurance policy with Strathmore Insurance Co. (Strathmore). Shortly thereafter, Governor Baker issued an order prohibiting Massachusetts restaurants from providing on-premises food or beverage consumption. As a...
Updated IBA Rules on the Taking of Evidence in International Arbitration
On February 15, 2021, the International Bar Association ("IBA") released an update to its highly influential Rules on the Taking of Evidence in International Arbitration ("IBA Rules"). The IBA Rules are a mix of common law and civil law traditions, and serve as the...
Can Court-Ordered Restrictions on Co-Parenting Communications Violate a Parent’s Constitutional Rights?
The short answer, according to a recent Appeals Court Memorandum and Order Pursuant to Rule 23.0, is yes. In the unpublished case of Sanavage v. Chavis, the parties were never married and were the parents of one child together. Following a trial on the father's...
What is the Statute of Limitations Period for a Chapter 93A Claim for Debt Collection Efforts?
In Aja v. Select Portfolio Servicing, Inc. (Memo and Order, November 25, 2020), the United States District Court for the District of Massachusetts allowed Select Portfolio Servicing, Inc.'s and Wells Fargo Bank's ("Defendants") motion to dismiss the amended complaint...
First Circuit Reverses District Court’s Grant of Summary Judgment
In Dahua Technology USA, Inc. v. Zhang, the First Circuit U.S. Court of Appeals reversed the District Court’s grant of summary judgment in favor of the Plaintiff-employer, Dahua Technology USA Inc. The District Court had ordered the reformation of the severance...
In disability discrimination lawsuit, former employee held bound by inconsistent statement made in Social Security Disability benefits application
Under the principle of judicial estoppel, a party to a lawsuit is precluded from asserting a claim that is inconsistent with a prior statement or position. In Thompson v. Gold Medal Bakery, Inc., the First Circuit recently applied this principle in the context of a...
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...
Can a savings clause save an indemnification provision that would otherwise be void under M.G.L. c. 149, § 29C?
The U.S. District Court for the District of Massachusetts addressed this issue in a recent order on a motion in limine in the case Lennar Northeast Properties, Inc. d/b/a Lenna Northeast Urban, and Lennar Hingham Holdings, LLC v. Barton Partners Architects Planners...
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...
The Impact of Social Security Disability Insurance (SSDI) Benefits on Child Support
Pursuant to the 2018 Child Support Guidelines, "[i]f a parent receives social security benefits or SSDI benefits and the children of the parties receive a dependency benefit derived from that parent's benefit, the amount of the dependency benefit shall be added to the...
Circuit Split Grows on Benign Language Exception for Debt Collection Envelopes
The United States Court of Appeals for the Sixth Circuit has joined the split from holdings by the Fifth and Eighth Circuits regarding a "benign language" exception for debt collection letters. The Sixth Circuit instead joined with the Seventh Circuit in holding that...
Lack of Testamentary Capacity in Massachusetts Will Contests
Showing a lack of testamentary capacity in Massachusetts will and trust litigation is not easy. In Joseph A. Haddad, et. al. v. Marcel A. Haddad, et. al., the Massachusetts Appeals Court recently reversed a decision by the Massachusetts Superior Court by finding that...
Superior Court Sheds Light on the Application of Frustration of Purpose Doctrine During the COVID-19 Pandemic
In the recent case of UNMV 205-207 Newbury, LLC v. Caffé Nero Americas, Inc., the Suffolk County Superior Court weighed in on the applicability of the frustration of purpose doctrine in connection with a commercial lease. In this specific case, the tenant ("Caffé...
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...
Can Massport treat a car sharing company like a traditional airport rental car company? Supreme Judicial Court to weigh in.
In January the Supreme Judicial Court (SJC) heard oral argument in a case challenging the ability of car sharing company Turo to facilitate pickups at Logan International Airport without paying the taxes and fees that Massport requires of traditional car rental...
United States Supreme Court Hold Foreign Government Taking From Own Citizens Does Not Fall Within Exception To Foreign Sovereign Immunities Act
The Supreme Court of the United States recently held in Federal Republic of Germany v. Philipp that Germany was immune from suit brought by heirs of Jewish art dealers on the grounds that the heirs' claims did not fall within an exception to the Foreign Sovereign...
Employees Beware: Appeals Court Allows Termination for Exercising Statutory Right
Massachusetts law gives employees the right to place a written statement in their personnel file if they disagree with information their employer has put into the file that has or may negatively affect the employee's qualification for employment, promotion, transfer,...
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...
School Costs Cannot Form Basis to Deny Housing Construction Permits
The Massachusetts Land Court, in two separate opinions, has held that the costs of educating school-age children who may occupy a housing complex is not a valid basis for denying a developer's request for a building permit. While the Massachusetts Appeals Court had...
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...
Life Sciences Companies Increase the Use of International Arbitration
As a natural result of their expansion even further into the global market, life sciences companies have increasingly relied on international arbitration to resolve disputes, joining a growing number of industries that have made a similar move in recent years. There...
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,...
Alimony Statute Does Not Restrict Parties’ Ability to Negotiate / Agree Upon How Alimony is Calculated
In a recent Rule 23 decision, a panel of the Massachusetts Appeals Court reversed the lower court and held that G. L. c. 208, section 53 (i.e., section 53 of the Alimony Reform Act) does not restrict parties' ability to negotiate and agree upon how alimony is...
Receiving Collection Letter Overstating Debt Owed Does Not Constitute Harm Sufficient to Create Standing Under Fair Debt Collection Practices Act
In Nettles v. Midland Funding LLC the Seventh Circuit recently held Plaintiff Ashley Nettles did not have standing to bring a claim against Defendant Midland Funding LLC under the Fair Debt Collection Practices Act ("FDCPA") on the grounds that Plaintiff suffered no...
Can U.S. Companies Can Be Sued in the U.S. for their Supplier’s Human Rights Violations? Supreme Court to Weigh In.
Last month, the U.S. Supreme Court heard oral argument in a pair of cases that question the role of the U.S. court system in holding companies accountable for profiting from child slavery in foreign countries. The Alien Tort Statute (ATS) gives federal courts...
In Case of First Impression, First Circuit Holds that Retaliation Claims Under the False Claims Act Must Be Evaluated Under the But-For Causation Standard
The False Claims Act prohibits employers from discriminating against an employee "because of" his or her protected conduct. In a case of first impression recently decided, Lestage v. Coloplast Corp., the First Circuit explained the meaning of "because of." Lestage, a...
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...
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...
Reflections on Client Advocacy and Practicing Family Law in Massachusetts During a Global Pandemic
As 2020 draws to an end, COVID-19 continues to impact the way of life for individuals and businesses across the Commonwealth, and the Massachusetts Probate and Family Court bar is no exception. Beginning in March 2020, and seemingly overnight, Probate and Family Court...
Can Employers Require Their Employees To Receive A COVID-19 Vaccine?
On December 16, 2020, the United States Equal Employment Opportunity Commission ("EEOC") issued guidance addressing questions related to the administration of the COVID-19 vaccine to their employees. Under this guidance, employers may require their employers to be...
First Circuit Upholds New Trial on Basis of Confrontation Clause Violation
In United States v. Ackerly, the government appealed the District Court's decision to grant a new trial on the basis of the defendant's argument that the government violated the Confrontation Clause. In that case, the defendant and her co-defendants were alleged to...
“CORPORATE FAMILY LAW” AT FITCH: Business Litigators and Family Law Litigators: Learning from Each Other
This post is part one in a series aimed at helping business litigation and family law litigation attorneys expand their arsenal of strategies for helping clients resolve their disputes. To the casual observer, the practice of business litigation and the practice of...
SJC Rules that Statute of Limitations in Condo Construction Defect Claims are Specific to Each Building in a Multi-Building Development, Not the Entire Development
In a win for developers, Supreme Judicial Court says six-year clock for design and construction defect claims runs separately for each building within condominium development. On November 3, the Supreme Judicial Court (SJC) made it harder for condominium owners to...
Massachusetts Appeals Court Affirms Superior Court Decision that Retreat Rentals on an Uninhabited Coastline in Duxbury do not Violate Conservation Restriction
In Wildlands Trust of Southeastern Mass., Inc v. Cedar Hill Retreat Center, Inc., the Massachusetts Appeals Court affirms a Superior Court judge's determination that Defendant Cedar Hill Retreat Center, Inc. ("Cedar Hill") did not violate a conservation restriction...
First Circuit Reverses Its Earlier Decision Voiding a Foreclosure Sale Over a Potentially Defective Notice of Default After the SJC, on Certification, Found the Notice Was Not Misleading
When a borrower defaults on the terms of the mortgage, the loan is accelerated, thereby allowing the bank to conduct a foreclosure sale. Because Massachusetts is a non-judicial foreclosure state, a bank does not need to obtain a judgment to foreclose (provided the...
Face-to-Face Meeting Requirement Before Foreclosure Satisfied by Letter and Visit to Arrange Later Meeting
The United States Court of Appeals for the First Circuit has held that, where a foreclosing mortgagee is required by HUD regulations incorporated into the mortgage, to make reasonable efforts to hold a face-to-face meeting with a borrower before foreclosure, there is...
European Data Protection Board Issues Recommendations to Guide Data Transfers from European Union to the United States
In July 2020, the European Court of Justice invalidated the use of the Privacy Shield framework, which thousands of companies had been using to transfer data between the European Union (EU) and the United States. The Court reasoned that the Privacy Shield did not...
Massachusetts peer review privilege does not apply in federal cases alleging health care billing fraud
A magistrate judge for the U.S. District Court for the District of Massachusetts recently held the peer review privilege did not apply in a case alleging health care billing fraud. In Wollman v. Massachusetts General Hospital, Dr. Lisa Wollman, a former...
9th Circuit to Judge Regulation of Mandatory Employment Arbitration
On December 7, the Ninth Circuit Court of Appeals is scheduled to hear oral argument in a case of particular relevance to employers who use arbitration to resolve disputes with employees. The case, Chamber of Commerce of the U.S. v. Becerra, considers whether states...
A Zero is Something: The Massachusetts Appeals Court Concludes that a Divorce Judgment Provided for a “Zero-Dollar Alimony Award”
People often think about the number zero as only nothing, when in fact, the invention of the humble zero constantly forces us to realize that the absence of something is a thing in and of itself. In a recent decision, the Massachusetts Appeals Court changed the...
Party Who Successfully Disputed Being Party to Mortgage Cannot Claim Rights Under Disavowed Mortgage to Challenge Foreclosure
The Massachusetts Appeals Court ("Appeals Court"), in an unpublished opinion, has held that where an alleged mortgagor has successfully argued that she is not party to a mortgage, she cannot later challenge a foreclosure of that mortgage on the grounds that the...
Office of the Comptroller of the Currency Issues “True Lender” Rule
While federal law permits national banks to transfer loans and assign mortgage loan contracts to third-party lenders, courts across the country have sometimes struggled, when loans are challenged in litigation, to determine which entity legally made the loan. This...
Eviction & Foreclosure Moratorium Expires Amid Rising COVID Infections
On April 20, 2020, Massachusetts Governor Baker signed into law An Act Providing for a Moratorium on Evictions and Foreclosures During the COVID-19 Emergency. The moratorium was originally set to expire on August 18, 2020, but Governor Baker had previously extended...
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...
Can a judge grant a deviation from the durational alimony limits when a complaint for modification of alimony is filed after the presumptive alimony durational limit has already expired?
The Appeals Court addressed this issue in the recent case, Clement v. Owens-Clement. In that case, the Husband and the Wife were married for a total of six years before they divorced in 2013. The parties' separation agreement, which was incorporated into their divorce...
Because The Montreal Convention Preempts All Local Claims That Fall Within Its Scope
The liability of aircraft carriers is governed by the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45 (2000) (the "Montreal Convention"), a multilateral treaty to which the United States is a...
Supreme Judicial Court Holds Prescriptive Easement Does Not Amount to a Taking
The Supreme Judicial Court ("SJC") recently held that a government taking did not occur where a town had acquired a prescriptive easement to discharge storm water through private property. In Gentili v. Town of Sturbridge, Plaintiffs commenced an action in 2015 in the...
Appeals Court Finds that Pre-Trial Conditions of Release and DCF Involvement are Inadequate Substitutions for the Protection of an Ch. 209A Abuse Prevent Order
In Vera V. v. Seymour S., the Appeals Court recently considered whether it was proper for a trial judge to deny a request for an extension of an ex parte abuse prevention order pursuant to G. L. c. 209A, based on the defendant ("husband") being subject to certain...
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...
Prior Public Use Doctrine Does Not Apply to Public Lands Sold or Leased for
The Massachusetts Supreme Judicial Court ("SJC") has held that the Prior Public Use Doctrine, which operates to prevent public lands acquired for a particular use from being diverted to another inconsistent public use without explicit legislative authorization, does...
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...
Court holds that Uber cannot be held vicariously liable for the alleged sexual misconduct of its driver
Under the theory of respondeat superior, an employer may be vicariously liable for the torts of its employee. In order to prevail on a claim of vicarious liability, the plaintiff must show two elements: (1) that an employer-employee relationship exists and (2) that...
When Three’s a Crowd: Intervention under Federal Rule of Civil Procedure 24
In T-Mobile Northeast LLC v. Town of Barnstable, et. al., the First Circuit affirmed the decision of the United States District Court for the District of Massachusetts to deny local residents' motion for leave to intervene. Rule of 24(a) under the Federal Rule of...
Tenth Circuits Confirms $36.1 Million International Arbitration Award
The Tenth Circuit confirmed a $36.1 million international arbitration award in a dispute between Bolivian company Compañia de Inversiones Mercantiles S.A. ("CIMSA") and a group of Mexican companies known as Grupo Cementos de Chihuahua, S.A.B. de C.V. and GCC...
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...
Business Interruption Coverage Class Action: Update on Rinnigade Art Works v. Hartford Financial Group
Back in June, Massachusetts saw the filing of the first suit seeking class action status challenging an insurance company's denial of coverage for COVID-19 related business losses, Rinnigade Art Works v. Hartford Financial Group. On August 3, 2020, Plaintiff Rinnigade...
Massachusetts Federal Court Rules on Employee Status Under the Fair Labor Standards Act
In a decision recently issued in the case of Maldonado et al. v. Cultural Care, Inc. et al., a group of "local childcare consultants" ("LCCs") brought a class action suit against Cultural Care, a company that places foreign au pairs with host families located in the...
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...
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...
“Last Mile” Delivery Drivers Exempt from Federal Arbitration Act
The United States Court of Appeals for the First Circuit has held that, despite never crossing state lines in the course of their duties, "last mile" delivery drivers qualify for the Federal Arbitration Act's ("FAA") exemption for transportation workers due to their...
Does The Seller’s Death Terminate A Real Estate Listing Agreement?
In a case of first impression, Newton Centre Realty, Inc. v. David R. Jaffe (June 23, 2020), the Appeals Court recently decided that the seller's death terminates a real estate listing agreement and concluded that the broker was not entitled to recover contract...
Clarifying the Clear and Unequivocal Standard of Contempt in the Probate and Family Court
In a recent Rule 23 decision, the Appeals Court of Massachusetts upheld a finding of contempt against a father who, without the mother's consent, registered the children for soccer. Following the parties' divorce judgment, the mother was awarded sole legal custody of...
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...
Payment of Wages and Earned Vacation Not Due Until Actual Date of Discharge, Even If Employee Stopped Working Earlier
In Knous v. Broadridge Financial Solutions, Inc., the United States District Court for the District Court of Massachusetts awarded summary judgment to an employer on the employee's claims of unpaid wages and earned vacation at the time of discharge. As a result of...
The Use of International Arbitration for Banking and Finance Disputes: Tailoring the Arbitration Clause
As we have pointed out before, the use of international arbitration for banking and finance disputes continues to grow. The International Chamber of Commerce also recently came out with a report discussing this growing trend for financing disputes. If you have...
First Circuit Affirms Dismissal of Class Action Against Nestlé, Mars, and Hershey for Non-Disclosure of Potential Child and Slave Labor Issues
In Tomasella v. Nestlé, a politically charged case involving three of the United States' most prominent chocolate manufacturers, the First Circuit recently affirmed dismissal of a putative class action against Nestlé USA Inc., Mars, Inc., and the Hershey Company. The...
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")...
A Party Cannot Be Both Party and Arbitrator: First Circuit Finds Arbitration Clause Unconscionable
The First Circuit Court of Appeals recently found an agreement's arbitration clause unconscionable where one party was given almost unfettered control over the selection of the arbitrators. In Trout v. Organización Mundial de Boxeo, Inc., plaintiff Austin Trout...
Superior Court Holds That, Even With Advance Notice To Its Employees, An Employer May Not Avoid Its Obligations Under Sullivan v. Sleepy’s LLC To Pay Separate and Additional Overtime
In the recent Superior Court case of Martinez v. Burlington Motor Sports, Inc., et al., a defendant auto dealership moved to dismiss a commission-based employee's claim for overtime wages pursuant to G. L. c. 151, §§ 1A and 1B, arguing that the Massachusetts...
U.S. Supreme Court Allows Non-Signatories to Enforce Arbitration Agreements
In GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, the United States Supreme Court was presented with the question whether domestic equitable estoppel doctrines that allow a non-signatory to an arbitration agreement to compel arbitration in disputes...
Appeals Court Rules that Settlement To Which Abutter Was Not a Party Does Not Deprive Zoning Board of Appeals of Jurisdiction Over Abutter’s Appeal
In Stevens v. Zoning Board of Appeals of Bourne, et. al., the Massachusetts Appeals Court upheld the Bourne Board of Selectman's decision to reinstate a cease and desist order against Plaintiff Lighthouse Realty Trust despite a Land Court settlement agreement between...
First Circuit Affirms Dismissal of Class Action Claims Against General Electric by Victims of Nuclear Disaster Due to Availability of Adequate Alternative Japanese Forum
In March 2011, a massive 9.0 magnitude earthquake occurred just off the coast of Japan and triggered a 45-foot tsunami, which in turn breached the seawall and resulted in a series of explosions and a widescale nuclear disaster at the Fukushima Daiichi Nuclear Power...
Circuits Split on Benign Language Exception for Debt Collection Envelopes
The United States Court of Appeals for the Seventh Circuit has split from holdings by the Fifth and Eighth Circuits in holding that the Fair Debt Collection Practices Act ("FDCPA") does not contain a "benign language" exception to the requirement that the envelope for...
Appeals Court Vacates Custody Award Due to Domestic Abuse Allegations
In the recent unpublished Memorandum and Order Pursuant to Rule 1:28, Manning v. Manning, the Massachusetts Appeals Court overturned a custody judgment from the Probate and Family Court awarding a couple shared legal and physical custody of their two children due to...
First Circuit Upholds Securities and Wire Fraud Convictions Against Former State Street Vice-President Ross
In United States v. McLellan, the First Circuit upheld securities and wire fraud convictions against former State Street Vice-President and head of the Department of Transitional Services Ross McLellan ("McLellan"). McLellan was convicted by a jury in the United...
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...
G.L. Ch. 209A Restraining Orders Must be Based on a Reasonable Fear of Abuse.
For a plaintiff to obtain an abuse prevention order, colloquially known as a "restraining order," against a defendant, the issuing court must make a finding of abuse. For the purposes of 209A, abuse is defined as a) attempting to cause or causing physical harm; b)...
Massachusetts Appeals Court Rejects Plaintiff-Borrowers’ Claim that Obsolete Mortgage Statute Limits Mortgagee’s Ability to Foreclose on Properties in Default
The Massachusetts obsolete mortgage statute, G.L. c. 260, § 33, provides, in relevant part, that "power of sale in any mortgage of real estate shall not be exercised . . . nor proceeding begun for foreclosure of any such mortgage after the expiration of . . . 5 years...
Land Court Holds That Family Has Successfully Asserted Adverse Possession Claim Over Disputed Land.
In the recent case of Bliss v. Boston Clear Water Company, LLC (decided April 21, 2020), the Essex Land Court found that the plaintiff, Mary Bliss, had successfully proved a claim to ownership of property on the grounds of adverse possession because her family had...
First Circuit Upheld District Court’s Preliminary Injunction Applying Delaware Law Based on Massachusetts’s Choice-of-Law Framework
Recently, in NuVasive, Inc. v. Day, the United States Court of Appeals for the First Circuit upheld the decision of the United States District Court for the District of Massachusetts to apply Delaware law and grant an employer a preliminary injunction against a former...
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...
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...
Appeals Court holds no “easement by necessity” for maintenance of land obtained by adverse possession.
In the recent decision, McDonald v. Andrade, the Massachusetts Appeals Court reversed a trial court decision, awarding an easement to a Plaintiff who had - in the same lawsuit - obtained the land to which the easement pertained by adverse possession. This case...
SJC Holds Consent-to-Settle Clauses in Professional Liability Insurance Policies Valid
The Supreme Judicial Court recently issued a decision that confirms the legality of consent-to-settle clauses in professional liability insurance policies. In Rawan v. Continental Casualty Company, the SJC held that the refusal of an insured party to settle an...
Guidelines Published for Video-Conferencing in International Litigation
The Hague Conference on Private International Law (the "HCCH") has just published its Guide to Good Practice on the use of video-conferencing technology in the taking of evidence (the "Guide") pursuant to the Convention on the Taking of Evidence Abroad in Civil or...
Pivotal Questions Concerning Coronavirus and Performance Under Contracts with Force Majeure Clauses
It is no exaggeration to state that the coronavirus (COVID-19) pandemic has been the largest disruptor to businesses this year. Productivity has slowed as co-workers self-quarantine to prevent the risk of exposure to the virus, and offices across the nation are closed...
What Happens to GAL Investigations During the Coronavirus Pandemic
The COVID-19 public health emergency has ground many activities to a halt, including the vast majority of matters at Probate and Family Courts across the Commonwealth of Massachusetts. Although the impact of court closures has been felt most strongly in the paucity of...
Issuance of 1099-C Does Not Void Equitable Lien on Foreclosure Surplus
The United States District Court for the District of Massachusetts, in a matter of first impression in the First Circuit, has joined the majority of courts to find that a junior lienholder's issuance of a 1099-C to a mortgagor following foreclosure does not extinguish...
SJC Determines Unpaid Commissions Due to Retaliatory Firing “[M]ust Be Trebled,” per the Wage Act
Recently in Parker v. EnerNOC, Inc., the Supreme Judicial Court held that, per the Massachusetts Wage Act, G.L. c. 149, §§ 148A, 150, an employee, who was deprived of a commission as a result of a retaliatory termination by her employer prior to the commission coming...
Federal Court Permits Plaintiffs’ Claims That “Rent-A-Bank” Predatory Lending Scheme Violated Massachusetts Consumer Protection Act
In Kaur v. World Bus. Lenders, LLC, Judge Willian Young of the United States District Court for the District of Massachusetts has partially denied a motion brought by World Business Lenders, LLC and Axos Bank to dismiss claims that the defendant lenders violated the...
When does the statute of limitations clock begin running in multi-phase, multi-building real estate development projects?
Large, multi-unit, multi-building real estate developments can be seen all over the greater Boston area these days. As with any major project, problems can arise, and what looked like perfect, shiny new building may start to form a few cracks. Once cracks start to...
I have an out-of-state child support order, but my child and his other parent moved to Massachusetts. Does this change how long I am obligated to continue paying child support?
Different states have different rules regarding when a parent's child support obligation ends. In some states, a parent's child support obligation ends when a child turns 18 years old. In Massachusetts, a parent's child support obligation generally lasts at least...
Are Comp Time and Work-Related Travel Expenses Recoverable Under the Wage Act?
The Massachusetts Wage Act allows an employee to recover "wages" that have been "unreasonably retained" by an employer. A salary is within the scope of the statute. What else is considered "wages"? It's not clear because the term "wages" is not defined. The...
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...
United States Supreme Court Rejects Discovery Rule for Fair Debt Collection Practices Act, But Leaves Potential Fraud-Specific Discovery Rule for Another Day
The United States Supreme Court has agreed with the United States Court of Appeals for the Third Circuit, and resolved a circuit split with the Fourth and Ninth Circuits, holding that the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq....
Massachusetts District Court Applies Precondition Test to Determine That Employees Are Not Entitled to Overtime Pay for Employee-Required Training
In a recent Memorandum and Order, the United States District Court for the District of Massachusetts District Court granted summary judgment to a group of defendant banks after applying a "precondition" test established by the First Circuit regarding overtime pay to...
First Circuit Rules That Massachusetts State Wage Act Not Preempted by Federal Law
In the recent case of Capron v. Office of Attorney Gen. of Mass., the federal First Circuit Court of Appeals issued an interesting ruling regarding the intersection of federal and state law, affirming a U.S. District Court order of dismissal providing that state wage...
Merlini v. Canada: The “Commercial Activity” Exception to the Foreign Sovereign Immunities Act
In Merlini v. Canada, the First Circuit dealt with an interesting case involving a clerical employee of the Canadian embassy who was injured on the job. After numerous twists and turns in her attempt to get worker's compensation coverage for her injury, she ultimately...
What happens when a buyer and a seller of a property negotiate past the purchase and sale deadline?
The Massachusetts Appeals Court recently issued an opinion in Ferguson v. Maxim, finding that the parties' offer agreement to purchase a property was enforceable even though the parties failed to timely execute the purchase and sale agreement (which, Defendants had...
U.S. Court Denies Motion to Stay in $118 Million-Dollar Venezuelan Debt Case
The United States District Court for the Southern District of New York has denied a motion brought by Venezuelan state-owned oil company, Petróleos De Venezuela, S.A. ("PDVSA"), and PDVSA Petróleo, S.A. ("Petróleo") (together, "Defendants"), for...
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...
Is a Court Required to Consider Past Abuse in a Child Custody Modification Action?
Recently in Malachi M. v. Quintina Q., the SJC held that: [P]ursuant to G.L. c. 208, § 31A, the judge at a modification proceeding must consider evidence of both past and present abuse, including evidence of domestic abuse that occurred prior to the entry of the...
First Circuit Holds Bank’s Sustained Overdraft Fees Are Not Interest Under the National Bank Act
The First Circuit recently affirmed the dismissal of a case in which the plaintiff alleged that Citizens Bank's "Sustained Overdraft Fees" on overdrawn checking accounts were usurious interest charges in violation of Section 85 of the National Bank Act (the "NBA")....
Tracking Down Documents For Legal Proceedings Abroad: Recent Decisions Broadening The Scope of Section 1782
Section 1782 of the U.S. Code (28 U.S.C.§ 1782) is a very important discovery tool for litigants who are part of a legal proceeding outside the U.S. (particularly if access to discovery is restricted there). It allows a foreign litigant to make a request before a...
Third Circuit Confirms that TILA Recoupment or Set Off Claims Outside the Statute of Limitations Can Only Be Asserted Defensively
The United States Court of Appeals for the Third Circuit has reaffirmed that exceptions to the statute of limitations for asserting certain claims regarding allegedly deceptive loan practices found in the Truth in Lending Act ("TILA"), apply only to assertion of those...
A Court May Modify A Merged Provision in a Separation Agreement Regarding Children’s Expenses Only When There Has Been A Material Change in Circumstances
Divorce litigants in Massachusetts may not clearly understand the distinction between those provisions in a Separation Agreement regarding child support and those provisions regarding the payment of the child(ren)'s expenses. Both types of provisions are merged into...
First Circuit Holds that Employee’s Termination Not Violative of Implied Covenant of Good Faith and Fair Dealing
In the recent case of Suzuki v. Abiomed, Inc., the First Circuit Court of Appeals affirmed a U.S. District Court order granting summary judgment to the defendant employer, holding that the company's termination of an employee approximately fifteen months prior to the...
What happens if one spouse builds a house and the other spouse does not help?
In a recent 1:28 decision, the Appeals Court of Massachusetts considered a challenge to a judge's order that real estate acquired by the Husband prior to the marriage should remain with the Husband following the divorce. The Wife appealed a divorce judgment where the...
Arbitrating Against Chinese Companies: Recent Developments from the HKIAC
When foreign companies do business with Chinese companies, international arbitration can be a key tool for dispute resolution, as it avoids either having a foreign court judgment that is unenforceable in China or having to deal with Chinese courts and home-court...
Protections Afforded to Homeowners by the Massachusetts Homestead Act
The Massachusetts Homestead Act allows homeowners to shield up to $500,000 of equity in their principal place of residence from claims from unsecured creditors (i.e. credit card debt).Even in those circumstances where the property is held in a trust, the...
In Breach of Contract Claim, Courts May Award Both Damages and Specific Performance
In Motsis v. Ming's Supermarket, Inc., (Mass. App. Ct. Nov. 5, 2019), the Appeals Court affirms a judgment awarding a commercial tenant both monetary relief and specific performance.Monetary damages and specific performance are two remedies that a party may pursue...
Appeals Court Holds that No Easement by Necessity Created in Condominium Dispute
Earlier this year, the Massachusetts Appeals Court issued an important decision in Chamberlain v. Badaoui reversing a Superior Court judgment and holding that a condominium's master deed did not create an express easement granting to Plaintiffs' unit access through...
Conclusory Allegations, Even When Admitted by the Opposing Party, Deemed Insufficient to Defeat Summary Judgment in FLSA Dispute
Recently in Costello v. Molari, Inc. (Memo and Order, November 20, 2019), the United States District Court for the District of Massachusetts granted an employer summary judgment because the employee failed to show that the Fair Labor Standards Act ("FLSA") applied to...
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...
New Appeals Court Decision Clarifies Residency Requirement For Filing For Divorce
In Massachusetts, the durational residency requirement for a plaintiff to file for divorce is one year G.L. c. 208, § 5 (meaning, one must be a Massachusetts resident for a year before Massachusetts has jurisdiction over their divorce), but until recently, appellate...
When will the court order a party to pay the other’s attorney’s fees in a family law case?
In civil litigation, which includes cases in the Probate and Family Courts, the American rule generally dictates that each party is responsible for its own attorney's fees and expenses. However, there are some exceptions to this, and in Massachusetts some...
What is dissipation of the marital estate and why does it matter?
One of the most contentious issues arising in divorce proceedings will often be the division of the parties' assets. In Massachusetts, the courts follow an equitable system of division, meaning they seek to divide property "fairly," not necessarily "equally." There...
On What Grounds Can an International Arbitration Award Be Vacated?
Your U.S. company and a commercial partner from a foreign nation had the foresight to designate international arbitration as the dispute resolution mechanism in your joint venture agreement. A dispute arose and you both diligently presented your claims to the arbitral...
Lost opportunity for considering alimony after child support is established: Appeals Court decision leaves us in the dark
In Casey v. Sweeney, a recent decision of the Appeals Court of Massachusetts, the court declined to provide clarification on the meaning of a statutory provision that has puzzled commentators and practitioners since it came into effect on March 1st 2012. The provision...
Massachusetts Superior Court Concludes Lender Properly Foreclosed and Seized Borrower’s Personal Property Following Loan Default
A recent Massachusetts Superior Court case, Germinara v. Bakis, et al. (decided May 13, 2019), involved a plaintiff borrower who obtained a commercial loan in order to fund the purchase and operation of a gas station/convenience store, which was owned by an LLC formed...
Banking and Finance Use of International Arbitration Continues to Grow
International arbitration has many benefits for banking and finance disputes, and parties to those disputes are increasingly recognizing those advantages. While banks and financial institutions have traditionally used courts and other judicial forums to resolve...
A Disloyal Corporate Officer, Ordered to Forfeit His Compensation To His Employer, Fails in His Attempt to Reduce The Amount of Restitution Under the Joint Tortfeasors Act
In a case of first impression, the Business Litigation Session (Davis, J.) recently declined to reduce the amount of restitution a disloyal corporate officer had been ordered to pay to his employer in connection with a judgment against the corporate officer. In so...
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...
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...
Is the Non-Compete Clause in My Employment Contract Enforceable?
Perhaps you are considering finding employment at a new company or already have a new job offer and remember that the employment agreement you have with your current or recent employer includes a non-compete clause. What is a non-compete agreement? Does this mean you...
Alimony modification requires a showing of a material change in circumstances
In a recent summary decision, Casey v. Sweeney, a panel of the Massachusetts Appeals Court reaffirmed that a payor's alimony obligation determined prior to the enactment of the Alimony Reform Act in March 2012 cannot be modified without a showing of a material change...
The Singapore Mediation Convention & Its Impact on Enforcement of International Mediation Agreements
The New York Convention has made it much easier for parties in international arbitration to seek enforcement of arbitral awards. The United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Mediation...
Declaratory Judgment Is Necessary Where Guaranty Does Not Address Certain Uses of Proceeds from a Foreclosure Sale.
In most commercial lending transactions, it is a common practice for lenders to secure the loan with a mortgage on the business property, which would permit the lender to foreclose on the mortgage securing the property if the borrower were to default on the. For...
Zoning and the Dover Amendment: When is education the primary purpose of a residential facility?
In a recent decision, The McLean Hospital Corporation v. Town of Lincoln & Others, the Massachusetts Supreme Judicial Court (SJC) held that a proposed residential program for adolescents is exempt from local zoning laws under the Dover Amendment. McLean Hospital...
Is a Former Spouse a “Creditor” Under the Massachusetts Uniform Fraudulent Transfer Act?
In Foisie v. Worcester Polytechnic, Institute (September 30, 2019), the United States District Court for the District of Massachusetts allowed a Motion to Dismiss where a former wife brought claims of fraudulent transfer and/or constructive fraudulent transfer against...
Seeking US Discovery for Foreign Proceedings: The Second Circuit Opens US Style Discovery to the World
Earlier this month, the Second Circuit issued a decision in In re Application of Antonio Del Valle that significantly expands the ability of parties to foreign legal proceedings to obtain discovery through United States courts. In Antonio Del Valle, the Second Circuit...
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...
What “Counts” as Income for the Purposes of a Child Support Order?
In Massachusetts, the amount of weekly child support to be paid by a parent is calculated by relying on the Massachusetts Child Support Guidelines, which are published by the Executive Office of the Massachusetts Trial Court and updated every three years. Although it...
Viable Retaliation Claim For An Employee Terminated Several Months After He Complained About Discrimination By His Supervisor
In a recent unpublished decision, Bakhtiar v. Infineon Technologies Americas Corp., the Superior Court in Worcester County (Yarashus, J.) found that an employee could establish a prima facie case of retaliation under Massachusetts law (G.L.c. 151B, § 1) even though...
Supreme Court Holds That Federal Arbitration Act Permits Litigation of Disputes By Workers Bound by Independent Contractor Agreements
The United States Supreme Court held in the unanimous decision of New Prime Inc. v. Oliveira earlier this year that the Federal Arbitration Act's exclusion as to contracts of employment necessitated that the parties' arbitration clause be overridden and the plaintiff...
Gimmick Check Not Accord and Satisfaction Under UCC Section 3-311
The United States District Court for the Eastern District of Virginia has held that, where a debtor in bad faith tenders a check or money order for substantially less than the amount owed on a loan, the receipt and deposit of that check will not constitute an "accord...
Are Employees Paid Solely by Way of Commissions Entitled to Separate Payments for Overtime Work or Work on Sundays Under the Massachusetts Overtime and Sunday Wage Statutes?
In Sullivan v. Sleepy's LLC, the Massachusetts Supreme Judicial Court (SJC) answered this question in the affirmative. In Sullivan, the SJC considered whether an employer satisfied its obligations to its employees under Massachusetts Overtime and Sunday wage laws,...
Supreme Judicial Court signals that it may become more difficult for primary custodial parents to move children out of the Commonwealth
In Massachusetts, petitions for the removal or relocation of a child from the Commonwealth are evaluated under one of two legal analyses, depending on whether one parent has sole/primary custody or the parents share physical custody. Where one parent has primary...
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...
Taking the Fifth: No Longer an Option When it Comes to Adultery in Massachusetts
Pursuant to 2018 Session Laws Chapter 155, Section 2 (An Act Relative to Reproductive Health), Massachusetts's outdated law criminalizing adultery was repealed. The Governor approved the law on July 27, 2018.2018 Session Laws Chapter 155, Section 2 specifically...
Federal National Mortgage Association Cannot Be Held Vicariously Liable for Acts of Agent Without Actual Authority
The United States Court of Appeals for the First Circuit has held, in a matter of first impression, that the Federal National Mortgage Association, commonly known as Fannie Mae, cannot be held vicariously liable for the acts of its agent absent actual authority from...
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...
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...
Is the knowledge of a closing attorney imputed to the mortgage company?
This issue arose in the recent Massachusetts Appellate case Salem Five Mortgage Company, LLC v. Lester. In that case, a mortgage company lent a borrower $300,000 for the purchase of a home on Nantucket. After the mortgage company approved the loan, but before the...
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...
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...
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...
Supreme Court Rules that Double Jeopardy Does Not Prevent State and Federal Prosecutions
The Double Jeopardy Clause of the Fifth Amendment provides that "No person shall...be subject for the same offence to be twice put in jeopardy of life or limb." That clause means that no person can be prosecuted twice for the same crime. Historically, the Double...
Practical Considerations on Electronic Disclosures in International Arbitration
Electronically stored information ("ESI") has connected businesses in ways that were not previously possible. ESI has also become a major source of evidence in all forms of commercial disputes. Arbitration generally limits discovery in order to promote its underlying...
First Circuit Finds That A Notice Of Default Is Potentially Deceptive, Rendering The Foreclosure Invalid
In Thompson v. JPMorgan Chase Bank (1st Cir. 2019), the First Circuit reversed the District Court's dismissal of the borrowers' claims against the mortgagee, finding that the notice of default did not strictly comply with the terms of the mortgage and Massachusetts...
Uncontested Actions To Modify A Judgment Or Order By Agreement: Supplemental Probate And Family Court Rule 412
Since its amendment in 2013, Supplemental Probate and Family Court Rule 412 has provided litigants/parties with the ability to jointly request that the Court modify an existing judgment or order administratively and without the need for a formal hearing. While such...
United States District Courts Reach Differing Conclusions on Definition of Automated Telephone Dialing System
The United States District Courts for the District of Massachusetts and the Northern District of Illinois recently reached different conclusions on the definition of an Automated Telephone Dialing System ("ADTS"), reinforcing a split of authority among courts across...
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...
Consumer Financial Protection Bureau Survives Attack on Constitutionality…For Now?
The Consumer Financial Protection Bureau (CFPB), established with the purpose of "ensuring that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and...
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...
Court Grants Summary Judgment to Employer on Former Employee’s Claim of Gender-Based Associational Discrimination and Retaliation
In Baer v. Montachusett Regional Technical School District (D. Mass. May 17, 2019), the United States District Court for the District of Massachusetts granted summary judgment to an employer on a former employee's claim that he was discriminated and retaliated against...
Business Litigation Section Holds That Director In Professional Corporation Owes Fiduciary Duty To Fellow Shareholders
In a fascinating decision, the Business Litigation Section of the Superior Court of Massachusetts recently held that a terminated doctor/shareholder could bring a breach of fiduciary duty action against the controlling director. The default rule in Massachusetts is...
The New York Convention Preempts State Law Regulating The Business of Insurance – Fifth Circuit Affirms Dismissal In Favor of Arbitration
In McDonnel Group, LLC v. Great Lakes Insurance SE, UK Branch (5th Cir. 2019), the Fifth Circuit recently held that the New York Convention trumps state insurance law. When its insurance claim was denied, McDonnel Group, LLC ("McDonnel") sued the insurers seeking a...
When The Price Isn’t Right: Mortgagees Must Ascertain The Fair Market Value Of A Property Before Conducting A Foreclosure Auction
The foreclosure process varies across the United States, but the process traditionally occurs in one of two ways: judicial or non-judicial foreclosures. Residential foreclosures in Massachusetts are non-judicial, which means that the foreclosure process happens...
“Merged” Versus “Surviving” Provisions of a Separation Agreement
The vast majority of divorce cases are resolved not by trial, but by the parties agreeing upon and submitting a Separation Agreement to the Probate and Family Court for approval. One of the more confusing elements of a Separation Agreement for many clients is the...
Fitch Arguments Prevail as Supreme Court Rules on How Foreign Governments May Be Served with Process
On March 26, 2019, the Supreme Court reversed the Second Circuit in the case of Sudan v. Harrison, which involved how foreign states may be served under the Foreign Sovereigns Immunities Act ("FSIA"). 28 USC § 1608 governs service of process on foreign states, and...
School district fails to establish that full-time work is an essential function of a teacher’s position in summary judgment proceeding
Last month in Incutto v. Newton Public Schools, et al., the United States District Court - District of Massachusetts denied a Newton Public Schools' motion for summary judgment regarding a former kindergarten teacher's claim for disability discrimination, despite the...
Can the Judge Give “Decisive Weight” to a Child’s Preference?
Recently in Jouret v. Buteau, Docket-18-P-68 (Mass. App. Ct. April 11, 2019) (Memo and Order Pursuant to Rule 1:28), the Appeals Court of Massachusetts vacated those parts of a modification judgment that eliminated Father's parenting time and prohibited his contact...
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...
Nonjudicial Foreclosures are not Subject to the FDCPA, says the Supreme Court
Until the Supreme Court's recent decision in Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029 (2019), if you were an entity engaged solely in the enforcement of security interests on loans, such as through nonjudicial foreclosure proceedings, the federal Fair...
United States Supreme Court to Consider Whether Fair Debt Collection Practices Act Subject to the Discovery Rule
The United States Supreme Court has agreed to consider a case that could resolve a split among the United States Courts of Appeals as to whether the discovery rule applies to the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ("FDCPA"). Rotkiske v....
First Circuit Interprets the Rights of Receivers under 12 U.S.C. § 1821(d)(2)(A) in the Federal Deposit Insurance Corporation’s Favor
In Zucker v. Rodriguez, No. 17-1749 (1st Cir. 2019), the First Circuit interpreted the rights of Receivers under 12 U.S.C. § 1821(d)(2)(A) in the Federal Deposit Insurance Corporation's favor. When an insured depository institution fails, it is common for regulators...
Massachusetts Federal Court Finds Mediation Privilege Waivable, Applies “Manifest Disregard” Standard In Med-Arb Case
Last month, one defendant's application to vacate a med-arb award brought about two important developments in ADR case law in Massachusetts. In Spruce Environmental Technologies, Inc. v. Festa Radon Technologies, Co., 2019 WL 1437826 (March 30, 2019) ("Spruce v....
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...
Business Litigation Session Holds That Memorized Information Derived From Employment Can Violate Confidential Information And Non-Solicitation Clauses
In a novel recent decision, the Business Litigation Session of the Superior Court of Massachusetts held that a financial consultant who had left his job and then allegedly prepared a list of his old firm's clients entirely from memory on his first day with his new...
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...
Top Five Reasons to Include International Arbitration Provisions in Cross-Border Contracts
In our modern, globally interconnected world companies from different nations frequently enter into business agreements with one another. While such joint ventures can create exciting opportunities, they can also run into challenges, or sour altogether. Thus, it is...
What Qualifies As An Educational Use Under The Dover Amendment?
The Superior Court of Massachusetts recently annulled the decision of a local zoning board that had permitted construction of an outdoor aerial adventure park pursuant to what is commonly referred to as the "Dover Amendment" - i.e., G.L. c. 40A, § 3. In Sullivan v....
SJC Expands What Constitutes an Adverse Employment Action for Employment Discrimination
The Massachusetts Supreme Judicial Court (the "SJC") recently held that an employer's failure to approve a lateral transfer request of an employee can qualify as an adverse employment action in the context of employment discrimination. In Yee v. Massachusetts State...
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...
Alimony based on “bonus income” is not available when income is determined to be payment for stock options
In a recent summary decision, a panel of the Massachusetts Appeals Court considered whether or not certain payments that a former husband received in addition to his base salary constituted "bonus income," of which husband would then be obligated to pay his former...
SJC Approves Counsel’s Fees In Settlement of Wage Act Claim
In a recently decided case, the Supreme Judicial Court held that two employees who asserted claims under the Massachusetts Wage Act, G.L. c. 149, §§148 and 150, were entitled to recover attorneys' fees from their former employer where the parties had entered into a...
First Circuit Court of Appeals Holds that Foreign Manufacturer Can Be Sued in Massachusetts
In an important decision for foreign companies, the First Circuit Court of Appeals recently reversed a trial court ruling and held that a foreign manufacturer of an allegedly defective product was subject to personal jurisdiction and could be sued in...
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...
U.S. Court Stays Third Party Funder’s Action To Enforce Foreign Arbitral Award Pending Decision In French Court Of Appeals
The United States District Court for the District of Columbia has temporarily halted an effort to enforce a foreign arbitral awardagainst Uzbekistan where the prevailing party had previously initiated proceedings in France topartially vacatethe same award. The twist...
Texas Supreme Court Holds Customer Liable for Forged Check Loss Where Bank Makes Available Statements of Account
The Texas Supreme Court has found that where a bank makes available a statement of account, consistent with Section 4-406 of the Uniform Commercial Code ("UCC"), the customer must bear the loss of forged checks, even when the bank did not send physical statements for...
Key Changes in the 2019 Amendments to the Massachusetts Rules of Appellate Procedure
Last month the Supreme Judicial Court announced amendments to the Massachusetts Rules of Appellate Procedure, which will take effect on March 1, 2019. The amendments include substantial modifications and clarifications to the rules of appellate procedure currently in...
I Have A Signed P&S Agreement But The Seller Refuses To Sign The Deed Because She Claims She Does Not Speak And Read English Fluently And Therefore We Have No Valid Agreement. What Can I do?
You can sue for specific performance of the purchase and sale agreement ("P&S agreement").InOcean City Development, LLC v. Barrros,(Mass. Land Court, January 2, 2018), the Land Court addressed that issue, ordering the Seller to convey her property to the Buyer in...
“I was laid off — Will the judge attribute income to me when determining child support?”
The Massachusetts Appeals Court recently addressed this issue in Miles v. Beusch, Docket 17-P-1511 (Mass. App. Ct. January 24, 2019) (Memorandum and Order Pursuant to Rule 1:28). In that case, the former Husband appealed the trial court's decision to attribute...
What happens when a divorcing spouse actively misrepresents his or her income in the context of a child support or alimony analysis or tries to hide assets?
A recent Appeals Court case addressed that issue, affirming the trial court's judgment that found that the husband's misrepresentations about his income were egregious enough that the trial judge's use of discretion to attribute and impute income to the husband was...
Fitch Represents International Law Professors at the Supreme Court
Fitch attorney Jared Hubbard was at the Supreme Court this past November on behalf of a group of international law professors-including George Bermann of Columbia Law School and David Stewart of Georgetown Law School-who appeared as amici curiae (friends of the court)...
Condominium Boards and Fiduciary Duty: To Whom Does the Duty Extend?
Do you know what fiduciary duties your condominium board owes? And to whom the duty is owed? First, what, exactly, is a fiduciary duty? The nature of fiduciary duties depends on the nature of the relationship between the parties but, at its simplest, it is a duty of...
An Employer Cannot Retaliate Against an Employee for Filing a Lawsuit for a Workplace Injury
An employee who filed a workers' compensation claim for a workplace injury while she was a temporary worker may file a negligence lawsuit against the company even though the company became her employer after she received workers compensation benefits for the injury...
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...
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...
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...
Commission Payments Are “Compensation” Under the Massachusetts Wage Act
The Massachusetts Wage Act, M. G. L. c. 149, § 148, governs how and when an employee's wages must be paid and provides that an employer who fails to comply with the Wage Act may be subject to treble damages and be ordered to pay the attorneys' fees of the employee who...
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...
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...
Seeking Special Findings of Fact Regarding Special Immigrant Juvenile Status (SIJS) in the Probate and Family Court
Congress created the classification of "special immigrant juvenile" in the Immigration Act of 1990, providing that a certain percentage of immigrant juveniles would be allowed to petition for lawful U.S. permanent residency (i.e. "Green Card") if they met specific...
Seeking Special Findings of Fact Regarding Special Immigrant Juvenile Status (SIJS) in the Probate and Family Court
Congress created the classification of "special immigrant juvenile" in the Immigration Act of 1990, providing that a certain percentage of immigrant juveniles would be allowed to petition for lawful U.S. permanent residency (i.e. "Green Card") if they met specific...
Massachusetts Court Finds Bank Not Liable for IOLTA Scam Loss
The Business Litigation Session of the Massachusetts Superior Court has joined other courts in holding that a bank is not liable to its customer for wiring money to a foreign account at the customer's instruction. The Plaintiff, Sarrouf Law LLP ("Sarrouf"), alleged...
Emails and Agreement for Judgment Can Satisfy Statute of Frauds
Many consumers and corporate executives alike believe that in order to have a contract that a court will honor, a prospective litigant must produce a written contract signed by both parties to the agreement. In fact, oral agreements are often enforceable, but...
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...
Getting the All Clear: Court Found Law Firm’s Reliance on Representation from Bank that Funds had Cleared was Unreasonable
In Colucci, Colucci, Marcus & Flavin, P.C. v. Citizens Bank of Massachusetts, No. CV 15-13536-GAO, 2018 WL 1567605, at *1 (D. Mass. Mar. 30, 2018), the United States District Court for the District of Massachusetts awarded summary judgment to Citizens Bank of...
What Is the Length of the Marriage When There Is More than One Complaint?
The Alimony Reform Act specifies statutory limits for the duration of alimony depending on the length of the marriage. The shorter the marriage, the shorter the duration of an alimony obligation. The length of marriage is defined as the "number of months from the date...
Third Circuit Holds FDCPA Statute of Limitations Runs from Violation, Not Discovery
The United States Court of Appeals for the Third Circuit has split with the Fourth and Ninth Circuits and held, en banc, that civil lawsuits alleging violations of the Fair Debt Collection Practices Act("FDCPA"), 15 U.S.C. § 1692 et seq., must be filed within one year...
Supreme Court Holds That Foreign Companies Cannot Be Sued Under Alien Tort Statute
The Supreme Court of the United States has held in a recent decision that foreign corporations that have committed human rights violations outside of the territory of the United States may not be sued in the United States federal courts under the Alien Tort Statute,...
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...
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...
When Determining Alimony, the “Length of the Marriage” May Start Before “I Do”
The United States Census Bureau shows the median age of individuals at the time of their first marriage is becoming increasingly older for both men and women. Meanwhile, the number of unmarried individuals cohabiting with their significant others is growing. These...
My Home Contractor Is Unresponsive And Abandoned The Project Before Completion: What Damages Can I Recover?
Dealing with an unresponsive contractor who abandons a project before its completion is unfortunately a situation that many homeowners face. Left with an incomplete bathroom or kitchen, the homeowner has no choice but to promptly find a new contractor to complete the...
Do Former Corporate Officers Hold the Attorney-Client Privilege Jointly with the Corporation?
Until late 2017, the question of whether a former officer of a Massachusetts corporation has access to attorney-client privileged communications made while that officer was employed at the corporation, had not been directly addressed by Massachusetts courts. Recently,...
Inadequate Petition For Grandparent Visitation Must Be Dismissed
In a decision handed down on May 3, 2018, the Massachusetts Appeals Court reversed a Probate and Family Court Judge's ruling and held that the court must dismiss a petition for grandparent visitation "when the petition does not sufficiently allege why visitation is...
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...
Passive Debt Buyers are not “Debt Collectors” Under Massachusetts Fair Debt Collection Practices Act
In an important decision for debt investors, the Supreme Judicial Court has ruled that passive debt buyers are not "debt collectors" under the Massachusetts Fair Debt Collection Practices Act ("MDCPA"). The decision, Dorrian v. LVNV Funding, LLC, can be found here....
Appeals Court Confirms Neighbors’ Easement Grants Right To Use of Beach in Hingham Harbor
In a recent case, the Massachusetts Appeals Court affirmed a Land Court decision holding that plaintiffs hold easement rights to access and use a beach in Hingham Harbor close to the parties' homes. Kane v. Martel, 92 Mass. App. Ct. 1130, at *1 (2018). Litigation...
Enforcement of International Arbitration Agreements Belongs in Federal Court
In the United States, the Federal Arbitration Act ("FAA") provides the rules that govern most arbitrations, and is binding on both state and federal courts. See 9 U.S.C. § 1 et seq. But the FAA is "something of an anomaly" in federal legislation as it "bestow[s] no...
Fiduciary Litigation Pilot Project of the Probate & Family Court Expanded
The Probate & Family Court recently announced that the Fiduciary Litigation Pilot Project under Standing Order 3-17 (https://www.mass.gov/probate-and-family-court-rules/probate-and-family-court-standing-order-3-17-fiduciary-litigation) has been expanded to apply...
A Reverse Mortgage Provision Incorporates The Statutory Power Of Sale Even Though It Omits The Word “Statutory”
Massachusetts is a non-judicial foreclosure state, meaning that a mortgagee is authorized to foreclose on a mortgaged property without obtaining prior court approval. The ability of a lender to exercise its "power of sale," that is without court approval, exists only...
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...
Land Court or Superior Court? Choosing a venue for your property dispute.
Parties involved in a real estate dispute in Massachusetts are fortunate to have choices when it comes to the venue of the litigation. One of the most strategic decisions that a plaintiff or defendant can make is deciding where to litigate the case. When it comes to...
Computer-Based Phone System Does Not Violate TCPA Prohibitions on Use of Automatic Telephone Dialing Systems
The United States District Court for the Southern District of Florida has agreed with the Northern District of Illinois's reasoning in Arora v. Transworld Systems Inc., 2017 WL 3620742 (N.D. Ill. Aug. 23, 2017), and found that a loan servicer's use of a computer-based...
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...
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...
You May Not Have Until December 31, 2018 to Avoid Losing the Alimony Deduction
One of the new provisions of the new tax reform bill - background here - is that the long-standing tax deduction for alimony will no longer be available for separation agreements and divorces obtained after December 31, 2018. Specifically, the reform applies to "any...
District of Columbia Court of Appeals Upholds CFPB’s Single-Director Power Structure
Authorized by the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Consumer Financial Protection Bureau (the "CFPB") is an agency of the United States government that regulates banks, credit unions, debt collectors, and many other sectors of the American...
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...
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...
Fiduciary Litigation Pilot Project Provides Streamlined and Specialized Venue for Probate Litigation
One of the first questions that any attorney and potential litigant must consider when deciding whether to file a lawsuit is where to bring the case. Since November 2017, potential probate litigants in three Massachusetts counties have a new venue to consider, the...
Web-Based Dialing System Does Not Violate TCPA Prohibitions on Use of Automatic Telephone Dialing Systems
The United States District Court for the Northern District of Illinois has found that a debt collector's use of a web-based dialing system to contact an individual's cell phone without permission does not violate the Telephone Consumer Protection Act's ("TCPA"), 47...
The Pregnant Workers Fairness Act: Recommendations for Employers
On April 1, 2018, the Pregnant Workers Fairness Act (the "Act") takes effect. https://malegislature.gov/Laws/SessionLaws/Acts/2017/Chapter54. The Act amends Massachusetts' anti-discrimination law, G.L. c. 151B, which applies to employers with six or more employees, to...
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...
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...
Obtaining Discovery in the U.S. for Use in Foreign Tribunals
Foreign litigants recently successfully sought the assistance of the United States District Court for the District of Massachusetts in obtaining discovery of Massachusetts residents and a Massachusetts company for use in a foreign proceeding. See In re Penner, No....
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...
Mass. Appeals Court Rejects Bank’s Attempt to Hold Surviving Spouse Liable for Late Husband’s Refinancing Note
The Massachusetts Appeals Court recently denied a mortgagee's attempt to invoke the doctrine of equitable subrogation to hold the surviving spouse of a mortgagor liable for a second mortgage on their residence--owned by the married couple as tenants in the...
Can An Exchange Of Text Messages Between Real Estate Brokers Create An Enforceable Contract For The Sale of Land?
Nowadays, it is not uncommon for real estate brokers to communicate with their clients and negotiate deals through text messages. The use of text messages in that context has given rise to a new legal issue: whether an exchange of text messages between brokers can...
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...
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...
Massachusetts Superior Court Decides That Right to Arbitration was Waived Due to Litigation Conduct
In a recent Superior Court decision, a judge held that there is a presumption that courts, not arbitral tribunals, have exclusive jurisdiction over the issue of whether a party has waived a contractual right to arbitration by engaging in substantial litigation before...
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....
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...
Young v. Young: The SJC Places a Time Limitation on the Determination of “Need” in the Alimony Reform Act
In the Alimony Reform Act of 2011, St. 2011, c. 124 ("the Act"), "alimony" is defined as "the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time . . . ." G. L. c. 208, § 48. However, because...
Creative American Arbitration Association (AAA) Procedure Offers Cost-Savings for Three-Arbitrator Panels
The American Arbitration Association ("AAA") has announced on its website that it is offering a "Streamlined Three-Arbitrator Panel Option" for large, complex cases. It's a fresh idea that is worthy of parties' consideration in cases where the rules (see Section...
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...
Failure to Record Complaint Requires Dismissal Under Statute of Repose
The Massachusetts Land Court has held that a plaintiff's failure to timely file a copy of a complaint challenging a foreclosure with the registry of deeds, as required by Mass. Gen. Laws c. 244, § 15, requires dismissal of a complaint challenging the subject...
Derivative suits on behalf of LLCs: No futility exception? Not so fast.
Must all derivative suits in Massachusetts be preceded by a written demand that a company take action? No. Members (shareholders) of a limited liability company seeking to bring suit derivatively on behalf of the LLC can do so without written demand. While much has...
A Notice of Default That Does Not Strictly Comply With Paragraph 22 Of The Mortgage Renders a Foreclosure Sale Void So Long As The Issue Of Noncompliance Was Asserted In Court Before July 17, 2015
The Supreme Judicial Court ("SJC") recently held that its holding in Pinti v. Emigrant Mtge Co., 472 Mass. 226, which was decided on July 17, 2015, "applies in any case where the issue was timely and fairly asserted in the trial court or on appeal before July 17,...
Superior Court Denies College’s Attempt to Hold Auditor Liable for Failure to Detect Employee’s Fraud
In an important recent decision in the Business Litigation Session of the Massachusetts Superior Court, Judge Kenneth W. Salinger rejected Merrimack College's attempt to hold its auditor KPMG, LLP liable for its failure to discover an employee's fraud. In Merrimack...
Signing Certified Mail Receipt Satisfies Requirement to Acknowledge Receipt of Borrower’s Request for Information
The United States Court of Appeals for the Eleventh Circuit has held, in a matter of first impression, that signing a borrower's certified-mail return receipt can serve as a loan servicer's acknowledgment of receipt of a borrower's written request for information....
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...
A Parenting Coordinator Can Help Prevent Hostile and Dictatorial Toned Emails Counter-Productive to Effective Co-Parenting
In Leon v. Cormier the MA Appeals Court upheld a contempt judgment against a mother who violated a parenting coordinator's order related to the mother's e-mail communications with the father. Specifically, the parenting coordinator ("PC") ordered that "as a rule,...
Massachusetts Prenuptial Agreement Signed One Day Prior to Wedding Upheld: Size and Formality of Wedding and Prior Divorce Matters
The Massachusetts Appeals Court has issued a Rule 1:28 Memorandum and Order in a divorce case entitled Roof v. Abelowitz upholding the validity and enforceability of a prenuptial agreement that the wife signed only one day prior to the wedding. The court considered...
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...
Are The Costs Of Mediation Recoverable In Fee-Shifting Cases?
Cost can be a deterrent when parties are considering whether to mediate a complex business dispute. Mediation is an excellent opportunity to settle a case in advance of costly trial preparation, but mediation requires parties to pay for both a mediator and their...
Probate and Family Court Standing Order 1-17 Sets Rules for Parent Coordinators
A parent coordinator can be a blessing in high-conflict divorce or support cases involving parenting and custody of a child or children. Occasionally, parents, for one reason or another, are unable to communicate effectively about parenting time, extracurricular...
District of Columbia Court of Appeals will Rehear PHH v. CFPB
Authorized by the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Consumer Financial Protection Bureau (the "CFPB") is an agency of the United States government that regulates banks, credit unions, debt collectors, and many other sectors of the American...
Failure to Comply With Post-Foreclosure Notice Provisions Does Not Void Foreclosure
The Massachusetts Supreme Judicial Court ("SJC") has held that a bank's failure to comply with post-foreclosure notice provisions in Mass. G.L. c. 244, § 15A ("Section 15A"), does not render a foreclosure void. Turra v. Deutsche Bank Trust Company Americas, 476 Mass....
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...
The Ninth Circuit Holds that the Enforcement of a Security Interest is Not Always “Debt Collection” Subject to the Fair Debt Collection Practices Act
The United States Court of Appeals for the Ninth Circuit recently held that a lender's agent is not a "debt collector" within the meaning of the Fair Debt Collection Practices Act ("FDCPA") when it sends certain notices to the borrower in connection with a...
Whistleblower Act: Allegations of Retaliation Fail Where the Conduct for Which the Retaliation is Alleged Was Committed by Co-Workers, Not Employer
The Whistle Blower Act, Mass. General Laws Ch. 149 § 185(b), provides that a public employer may not retaliate against a public employee who has (1) "blown the whistle" or, in other words, disclosed an activity, policy or practice of the employer that the employee...
Ninth Circuit Holds Opt-In Foreclosure Notice Statute Violates Due Process
The United States Court of Appeals for the Ninth Circuit has joined the Fifth Circuit in finding that a statutory scheme in which mortgage lenders were required to affirmatively opt-in to receive notice of foreclosures by homeowners' associations violates the lenders'...
D.C. Circuit Rules Structure of Consumer Financial Protection Bureau Unconstitutional
In a highly anticipated decision and the first judicial review of a Consumer Financial Protection Bureau ("CFPB" or the "Bureau") administrative enforcement action, the United States Court of Appeals for the District of Columbia Circuit ruled in October 2016 that the...
Ninth Circuit Joins the Dissenter, Holds that Employers Can Not Prohibit Concerted Actions
The Supreme Court may soon be taking on an issue that has divided several of the federal circuit courts. The circuits disagree on a fundamental question that relates to arbitration and labor law - whether an agreement to arbitrate is valid when an employee waives the...
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...
D.C. Circuit Sends Claims Against Airbnb for Discrimination to Arbitration Proceedings
Recently, the #Airbnbwhileblack hashtag started floating around social media as a way to bring awareness to several reported instances of African Americans having issues with booking accommodations through Airbnb, a service that allows peer-to-peer short-term rentals...
Potential Regulation of Overdraft Services on Checking Accounts Still Under Consideration by the Consumer Financial Protection Bureau
By: Nathalie K. Salomon The Consumer Financial Protection Bureau (CFPB) is considering potential regulations related to overdraft services on checking accounts. An overdraft occurs when a consumer withdraws more money than he has in his account. When a bank covers the...
Massachusetts Appeals Court Reaffirms MERS’ Role As Mortgagee
The Massachusetts Appeals Court, in a Rule 1:28 decision, has once again reaffirmed its holdings in Sullivan v. Kondaur Capital Corp., 85 Mass.App.Ct. 202 (2014) and Shea v. Federal Natl' Mort. Assn., et al., 87 Mass.App.Ct. 901 (2015), that the Mortgage Electronic...
Appeals Court Holds That Condominium Owners Can Waive Constitutional Rights In Bylaws
The Massachusetts Appeals Court considered whether a provision in condominium by-laws unfairly prevented individual unit owners from seeking the intervention of the court where the unit owners alleged that the condominium's trustees had breached their fiduciary duties...
Ninth Circuit Denies Class Action For Allegedly Fraudulent Mortgage Modification Delays and Subsequent Foreclosures
The United States Court of Appeals for the Ninth Circuit has refused to reinstate a putative class-action suit accusing numerous banks and other mortgage servicers of fraudulently enticing mortgagors into applying for mortgage loan modifications to continue collecting...
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...
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...
How To Obtain Record Title To a Parcel of Land When a Recorded Plan Shows That You Own It but a Prior Recorded Plan Says Otherwise
By: Nathalie K. Salomon To determine who owns a parcel of land, it is necessary to conduct a title examination at the registry of deeds of the county where the land lies. A title examination involves two aspects: (1) a determination of the chain of title to identify...
Supreme Judicial Court Reconsiders What It Means to Be a Legal Parent in Massachusetts
Last month, the Commonwealth's highest appellate court considered how legal parenthood is defined in the context of children born to a same-sex couple as a result of artificial insemination. The case, Partanen v. Gallagher, is currently under advisement by the Supreme...
Massachusetts Supreme Judicial Court Rejects Challenge To Attorney’s Authority To Conduct Foreclosure Activities For Client Without Written Authorization
The Massachusetts Supreme Judicial Court (the "SJC) has rejected a challenge to the authority of an attorney to conduct foreclosure activities on behalf of clients without specific written authorization to perform those activities. See Federal National Mortgage...
Federal Circuit Rules that Patent Suits Can Continue to Be Filed in Any District Where Defendant is Subject to Personal Jurisdiction
In a highly anticipated decision, the Federal Circuit recently issued an opinion denying a request made by TC Heartland LLC ("Heartland") for new restrictions on where patent suits can be filed. In Re TC Heartland LLC, No. 2016-105, slip. op. (Fed. Cir. April 29,...
Employers May Not Prohibit Class Actions, Holds The 7th Circuit
The 7th Circuit Court of Appeals recently created a schism between the Circuits that may lead to the Supreme Court's intervention on an important issue: whether an employer may bar employees from bringing class action claims by requiring claims to be arbitrated. The...
DFPB Proposes Rule That Would Restore Consumer Right To Sue Banks
In AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), the United States Supreme Court ruled that the Federal Arbitration Act preempts state laws that prohibit consumer contracts from disallowing class-wide arbitration. On May 5, 2016, however, the Federal...
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...
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...
Land Court Holds Unsigned Memorandum of Understanding Not Sufficient To Bind Parties to Real Estate Conveyance
In a recent Land Court case, the Court held that an unsigned Memorandum of Understanding regarding an ownership interest in a home on Nantucket was not binding upon the parties. In Slover v. Carpenter, Walter Boyd Jr. and his sister Josephine Carpenter owned a house...
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...
CFPB Proposes Rule That Would Restore Consumer Right To Sue Banks
In AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), the United States Supreme Court ruled that the Federal Arbitration Act preempts state laws that prohibit consumer contracts from disallowing class-wide arbitration. On May 5, 2016, however, the Federal...
For Better (But Not For Worse): Premarital Agreements May Offer Protection From Marital Debt
Prior to walking down the aisle in 2014, celebrity power-couple Kanye West and Kim Kardashian entered into a prenuptial agreement, a fact that was far from surprising given that Forbes pegged the parties' respective net worths at $100 million and $40 million dollars,...
China v. the Philippines: Can Countries Ignore International Arbitration?
As President Obama meets with Asian leaders this week, his conversations with Chinese president Xi Jinping will surely touch on what has become a contentious topic with deep implications in the international community - namely, the rise of Chinese expansionism into...
U.S. District Court Dismisses Claims Arising From Check Fraud Scheme
In Armenian Missionary Association of America, Inc. v. TD Bank, N.A., et al, 87 UCC Rep. Serv. 2d 766 (D.N.J. 2015), the United States District Court for the District of New Jersey dismissed check fraud claims brought against TD Bank N.A. ("TD"). Plaintiff Armenian...
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,...
Mandatory Self-Disclosures in Family Court: What Do the Finances Look Like?
In any divorce, the division of assets and support calculation (if any) will be one of the main, if not the main, focal points of the divorce process. In order to accomplish this task, both parties and their counsel should have a thorough understanding of the parties'...
Connecticut Supreme Court Upholds Mortgage Recording Fees for MERS
The Connecticut Supreme Court has upheld state legislation imposing an aggregate fee increase of approximately $5 million for mortgages recorded in Connecticut registries by Mortgage Electronic Registration Systems, Inc. ("MERS"). See MERSCORP Holdings Inc., et al. v....
Alimony: Understanding What Qualifies As Alimony, And “Alimony Recapture” Rules
Alimony is the payment of money (i.e., cash) made to, or on behalf of, a former spouse provided that: a. such payment is made pursuant to a written divorce or separation instrument; b. the divorce or separation instrument does not designate the payment as one that is...
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...
The Massachusetts Lis Pendens Statute: Tactical Considerations
The ink has long since dried on the purchase and sale agreement for that seaside inn you have always dreamed of owning, but the seller has backed out at the last minute without explanation and failed to attend the closing. You suspect that another buyer has offered a...
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....
Massachusetts Supreme Judicial Court Answers Important Workers’ Compensation Benefits Question
In a ruling that brings certainty to employers and employees, this month the Massachusetts Supreme Judicial Court issued two opinions concerning workers' compensation benefits, specifically, the scope of an insurer's lien. Generally, under G.L. c. 152, the workers'...
TILA Notice of Note Transfer Provision Not Retroactive, and Does Not Trigger Right to Rescission
Two recent decisions have clarified the scope and effect Section 131(g)(1) of the Truth-in-Lending Act's ("TILA"), which requires that a borrower be notified within 30-days of the sale, transfer, or assignment of a mortgage loan to a new owner. 15 U.S.C. § 1641(g)(1)....
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,...
Massachusetts Superior Court Holds That Plaintiffs Can Sue Distinct Corporations Under Single Integrated Employer Theory
In the recent case of Fitzgerald v. The Chateau Restaurant Corp., No. 14-01990-J, 2016 WL 344155 (Mass. Sup. Ct. Jan. 4, 2016), a former manager at The Chateau Burlington and The Chateau Andover restaurants filed a putative class action against parent company The...
Massachusetts SJC Issues Important Decision Curtailing The Availability Of Attorney’s Fees In Arbitration
In Beacon Towers Condominium Trust v. Alex, 473 Mass. 472 (2016) ("Beacon Towers"), the Massachusetts Supreme Judicial Court decided that an arbitral tribunal had overstepped the bounds of its authority when it awarded attorney's fees pursuant to the Commonwealth's...
Is What I Tell My Lawyer Confidential? The Attorney-Client Privilege.
Communications between a client and a lawyer for the purpose of seeking or providing legal advice are generally confidential and neither the client nor the lawyer can be compelled to disclose them. The protection that applies to such communications is called the...
Enforcing A Child Support Order: Help from the Massachusetts Department of Revenue
Recognizing a child's need/right to receive financial support from both parents - even when those parents are apart - the DOR employs various methods to assist families in enforcing court-ordered child support obligations. For example, upon receipt of a Court's child...
Eighth Circuit Holds No Recovery for Converted Checks in the Absence of Actual Loss
In a recent Minnesota case, the Eighth Circuit Court of Appeals held that where a bank accepted and paid two checks despite missing endorsements, the jilted payee had no viable claim because it ultimately suffered no loss. Northeast Bank v. The Hanover Ins. Group, 796...
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...
What is the difference between a jury trial and a bench trial in Massachusetts?
Articles XII and XV of the Massachusetts Constitution guarantee the right to a trial by jury, but the choice of whether to exercise that right is a strategic decision that often depends upon the facts and circumstances of a case. A case where the judge serves as...
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...
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....
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...
Appeals Court Holds That Easements Provide Access To Landlocked Parcels
The Court of Appeals recently issued an interesting decision, Kitras v. Town of Aquinnah, 87 Mass. App. Ct. 10 (2015), concerning easements and accessibility rights to parcels of land owned in the late 1800s by members of the Wampanoag Tribe of Gay Head in Martha's...
Appeals Court Articulates Standard For Barring Contact Between Children And Third Parties In Divorce Cases
The Massachusetts Appeals Court recently issued a decision in a divorce case called Jankovich v. Jankovich. It was a Rule 1:28 decision, which is primarily directed to the parties and, therefore, may not fully address the facts of the case or the appellate panel's...
Alternative Dispute Resolution In Massachusetts: What Is Conciliation?
Supreme Judicial Court Rule 1:18 encompasses the Uniform Rules on Dispute Resolution ("Rules"). The Rules govern court-connected dispute resolution services provided in civil and criminal cases in the Commonwealth's trial courts. One of the express purposes of the...
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...
Pennsylvania Federal Court Rejects Plaintiff’s Attempt to Invoke Discovery Rule To Toll Statute of Limitations in UCC Check Fraud Case
Section 4-401 of the Uniform Commercial Code provides that a bank may charge the account of a customer if it is presented with a "properly payable" check or other item "authorized by the customer," and "in accordance with any agreement between the customer and the...
“Parental Privilege” Recognized As An Affirmative Defense In Child Spanking Case
In a decision handed down on June 25, 2015, the Massachusetts Supreme Judicial Court recognized a "parental privilege" to use reasonable physical force to discipline a minor child as an affirmative defense in a criminal action. (See Com. v. Dorvil, 472 Mass. 1...
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...
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...
International Bar Association Annual Conference in Vienna 2015
The International Bar Association is the world's foremost organization of lawyers, bar associations, law firms and law societies. Its membership includes more than 55,000 lawyers from over 160 countries, in addition to nearly 200 bar associations and legal...
Offering Testimony By Videoconference In International Arbitration
Testimony by videoconference in international arbitration offers the disputants both a fair means for assuring that relevant evidence is heard and an effective tool for cost reduction.It is hardly surprising that lawyers frequently encounter challenges in obtaining...
“Divorce Selfie” Explosion Bucks Trend of Damaging Use of Social Media in Family Law Cases
With the explosion of social media over the last decade, evidence from Facebook, Twitter, MySpace, and Instagram is now routinely used in divorce cases, shedding light upon critical factors such as a party's spending habits, irresponsible behavior, or failure to make...
Tenth Circuit Upholds Refusal to Stay Court Proceedings due to Arbitration Default
The Tenth Circuit Court of Appeals recently affirmed a district court's decision to lift the stay in federal proceedings due to the arbitrator's decision to terminate proceedings based on a party's failure to pay the arbitration fees. It reached this decision by...
Section 35A Imposes No Time Limit on Completion of Foreclosures
The statute providing borrowers with a right to cure mortgage payment defaults before acceleration and foreclosure can occur imposes no deadline on completion of foreclosure proceedings once commenced, according to two very recent Massachusetts decisions. G.L. c. 244,...
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...
Massachusetts Appeals Court Holds Operators of Commercial Campground Established Right to Un-Enclosed Land Through Adverse Possession
Under the doctrine of adverse possession, an individual, business, or group of individuals who have continuously used land owned by someone else for twenty years can make a claim that such use entitles the claimant to ownership of the property. To prevail on a claim...
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 -...
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...
Supreme Judicial Court Rules That Real Estate Salespersons Can Continue To Be Defined As Independent Contractors
The Supreme Judicial Court has recently affirmed in Monell v. Boston Pads, LLC, 471 Mass. 566 (2015) that real estate brokerage companies can continue to classify real estate salespersons as independent contractors and are not subject to the Massachusetts independent...
It’s Not Over Till It’s Over: Assets Earned After Service Of Divorce Complaint Are Included In The “Marital Estate”
From a legal perspective, getting hitched in Massachusetts is fairly quick and simple, requiring little more than a valid marriage license and a proper officiant. It is not even necessary to be wed by a clergy member or Justice of the Peace, as anyone over the age of...
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...
Gender-Based Discrimination Claim Remanded For Determination By Jury
Even a seemingly objective performance evaluation process may not insulate an employer from claims by an employee that their termination was discriminatory. In a 2013 unpublished decision, Rochat v. L.E.K. Consulting, LLC, 83 Mass. App. Ct. 1108 (2013), the Appeals...
As a Trustee, Can You Partition Real Estate Owned by a Trust?
Trustees sometimes face beneficiaries disagreeing about how to maintain real estate owned by a trust, such as a family vacation home. But does a trustee have standing to bring a partition action to sell Massachusetts real estate? Likely not. Under Massachusetts's...
Fifth Circuit Court of Appeals Reaffirms MERS System Under Texas Law
The United States Court of Appeals for the 5th Circuit has held that recording Mortgage Electronic Registration Systems, Inc. ("MERS") as the holder or beneficiary of a mortgage comports with Texas law. Harris County Texas, et al. v. MERSCORP Inc., et al., No....
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...
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...
“Managerial Control” Key To Construction Site Negligence Claim
For a viable negligence claim against a construction project management firm, the plaintiff has the burden of showing that the defendant exercised "managerial control" over the manner in which the work was performed when the plaintiff was injured. A recent Suffolk...
CFPB to institute TILA-RESPA Integrated Disclosure Rule on October 3, 2015
The Real Estate Settlement Procedures Act (RESPA) was enacted by Congress in 1974 in order to promote "more effective advance disclosure to home buyers and sellers of settlement costs." 12 U.S.C. § 2601(b)(1). In particular, RESPA requires the issuance of forms to the...
The Fate of Fixtures at the End of a Commercial Lease: Who Pays for Removal?
The obligation of a tenant to remove fixtures and the right of the landlord to recover the cost of removal of fixtures and attendant repairs to the property were the subject of a recent decision by Suffolk Superior Court Judge Robert Gordon in The Wilder Companies,...
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...
Two Appellate Courts Hold That Banks’ Duty of Care to Non-Customers Is Extremely Limited
The United States Courts of Appeals for the Sixth and Eleventh Circuits have added to the significant body of law limiting a bank's duty to non-customers harmed or defrauded by one of the bank's actual customers. The Sixth Circuit reaffirmed that, under Michigan law,...
Translating Written Documents in International Arbitration and Litigation
An inherent challenge of cross-national business endeavors is that, once a deal or business relationship is in place, the actual terms of the contract will be carried out in different countries. Despite the fact that the trans-national agreement or contract was...
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...
“A House Divided”: Determining the Disposition of the Martial Home Upon Divorce
Abraham Lincoln has famously stated that "a house divided against itself cannot stand"; and the disposition of the marital home is often one of the most contentious issues in a divorce case. In many cases, the marital home represents the couple's most significant...
Court Deviates From Durational Limit With Extension Of Alimony Paid To A Disabled Spouse
Since the enactment of the Alimony Reform Act of 2011 (the "Act"), alimony awards once considered ambiguous or lifetime entitlements are now subject to specific, durational time limits based upon the length of the parties' marriage. But, under what circumstances might...
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...
As a Personal Representative, Do You Have to Sell Real Estate?
The largest asset in an estate is often real estate, such as the family home. Sometimes the decedent owns additional real estate, such as a vacation home or an income-producing rental property. What happens to such property varies in every situation and poses...
Appeals Court Clarifies What Constitutes Exceeding An Arbitrator’s Authority, Approves Arbitration of Statutory Claims
The Massachusetts Appeals Court has ruled that an arbitrator exceeds her authority only when "she awards relief beyond the scope of the arbitration agreement, beyond that to which the parties bound themselves, or enters an award prohibited by law." Conway v. CLC Bio,...
One Step Closer to Enforcing Foreign Child Support Orders: U.S. Ratification of the Hague Convention on the International Recovery of Child Support is Near
The cross-border enforcement of child support has long bedeviled parents and children who seek a delinquent parent's compliance with a court order. Given the many difficulties inherent to the enforcement of court orders in foreign jurisdictions, as well as the heavy...
Striking a Balance: Judicial Liens Survive Bankruptcy Under Massachusetts Law
In an attempt to strike a balance between a debtor's right to the "fresh start" contemplated in the Bankruptcy Code and a creditor's right to collect on secured debt, the Massachusetts Supreme Judicial Court (the "SJC") has squarely held that a judicial lien survives...
U.S. Supreme Court Rules That Underwater Mortgages Cannot Be “Stripped Off”
While the American economy has shown tentative signs of stabilization and recovery, the nation's courts continue to grapple with legal questions that emanate from the Great Recession and the bursting of the so-called "housing bubble." In one notable development, the...
Differences Between International Arbitration and Litigation in U.S. Courts
There are fundamental differences between international arbitration and litigation in the U.S. courts that can impact the cost of resolving your dispute, the time to resolution, and each party's respective level of comfort with the process. Below, I set out a few...
Mine, Yours or Ours? Ownership of Property During the Marriage and Upon Death or Divorce
Many married couples give little thought to the issue of which party "legally owns" property acquired during the marriage or the impact that legal ownership may have upon the distribution of assets in the event the marriage ends by death or divorce. Some couples...
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...
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...
Foreclosure Is Not Debt Collection Under the FDCPA in the 11th Circuit
The United States District Court for the Middle District of Florida has issued an opinion collecting 11th Circuit precedent and reiterating that foreclosure or other enforcement of a security interest, without more, is not "collection of any debt" under the Fair Debt...
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...
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...
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...
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")...
What Happens When Your Selected Arbitral Forum Is Unavailable?
Arbitration agreements often name a particular arbitral forum to conduct an arbitration, but what if, when a dispute arises, that arbitral forum no longer exists or is otherwise unavailable? In Inetianbor v. CashCall, Inc., 768 F.3d 1346, 1350 (11th Cir. 2014), the...
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...
Massachusetts Appeals Court Overturns Wind Turbine Zoning Ruling
In Drummey v. Town of Falmouth, the Massachusetts Appeals Court overturned a Superior Court ruling and held that the Town of Falmouth incorrectly failed to obtain a special use permit from the Falmouth zoning board of appeals in order to construct and install a wind...
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...
Court Dissolves Lis Pendens After Discovering Arbitration Clause
In a recent decision, Bliss Realty Trust v. Roos Company, LLC et al., Civil Action 2014-7562, Superior Court Judge Dennis Curran dissolved a lis pendens he had granted only months earlier after he learned that the party seeking the lis pendens failed to notify the...
Appeals Court Settles Jurisdiction Question For Large-Scale Development Projects
In February, the Massachusetts Appeals Court clarified that the Land Court and Superior Court have exclusive jurisdiction over appeals of permits granted by cities and towns for large-scale development projects. See Skawski v. Greenfield Investors Property Dev., LLC,...
Massachusetts Supreme Judicial Court Upholds Obsolete Mortgage Statute
The Massachusetts Supreme Judicial Court ("SJC") has held that the provisions of the "Obsolete Mortgage" statute, Mass. Gen. L. c. 260, § 33, as amended in 2006, comport with the Massachusetts and United States Constitutions. Deutsche Bank National Trust Co. v....
Fifth Circuit Rules Amendment to Electronic Funds Transfer Act Not Retroactive
A three-judge panel of the Fifth Circuit has ruled that a 2012 amendment to the federal Electronic Funds Transfer Act ("EFTA"), which abolished the requirement that operators of automatic teller machines ("ATM") maintain exterior notices of fees, was not retroactive....
Direct Benefits Estoppel — Compelling Non-Signatories to Arbitrate
The Seventh Circuit recently ruled that a party was bound to an arbitration award despite not being a signatory to the agreement to arbitrate. The court based its decision on the doctrine of "direct benefits estoppel," ruling that, even though the plaintiff was a...
Top 10 Reasons to Choose International Arbitration in Dispute Resolution Clauses
In the negotiation of complex cross-border commercial contracts, the parties too often pay scant attention to the terms of dispute resolution clauses. The clear advantages of choosing international arbitration over court forums can be overlooked. Here are our top ten...
Supreme Judicial Court: ‘Try Title’ Actions Challenging Foreclosure Are Only Available After Foreclosure Occurs
In a decision handed down earlier this month, the Massachusetts Supreme Judicial Court (the "SJC") has resolved a split among Land Court justices regarding the availability of a "try title" action brought against a mortgagee prior to foreclosure. In Abate v. Fremont...
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...
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...
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....
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...
Supreme Judicial Court Decides Forced Withdrawals From ATM Satisfy Criminal Statute’s Intent Requirement
An act of theft committed by forcing the victim to withdraw money from an Automated Teller Machine ("ATM") is sufficient to trigger conviction under a Massachusetts statute prohibiting "confining to commit a felony" (see G.L. c. 265, § 21), the Supreme Judicial Court...
Does a Parent Have a Right to Counsel in Proceedings Where a Third Party Seeks to be Appointed as Guardian?
The Supreme Judicial Court recently ruled, in a much-anticipated decision, that a parent has a right to court-appointed counsel when a third party is petitioning for permanent guardianship over his or her child. The decision in the case, the Guardianship of V.V., is...
Application of the CISG international Sale of Goods Contracts
When handling a commercial case between parties from different countries, it is important to consider what impact, if any, the United Nations Convention on Contracts for the International Sale of Goods ("CISG") may have on the dispute. If it applies to a contract...
Supreme Judicial Court Authorizes Parent Coordinators But Limits their Authority
During a contested divorce or paternity action involving minor children, and often long after the case is formally resolved, some parents face ongoing disputes over "day to day" matters such as whether should participate in two...
Massachusetts Appeals Court Issues Important Zoning Clarification
In Pelullo v. Croft, the Massachusetts Appeals Court issued an important decision regarding zoning by-laws. 86 Mass. App. Ct. 908 (2014). The Defendant applied to the Natick building inspector for a permit to construct a single family home on his lot at 15 Upland...
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...
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...
Supreme Judicial Court Determines that Retirement Provision of Massachusetts Alimony Reform Act Is Not Retroactive
On January 20, 2015, the Supreme Judicial Court issued decisions in three cases involving an important provision of the Massachusetts Alimony Reform Act ("the Act"). In each of these cases, which are described more fully below, the alimony payor wanted to terminate...
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...
Alabama Supreme Court Holds Bank of First Deposit Must Bear Liability for Under-Encoded Check
On September 30, 2014, the Alabama Supreme Court issued an important decision with wide-ranging implications for depositary institutions. In the case of Troy Bank and Trust Co. v. The Citizens Bank, 2014 WL 4851511 (Ala. 2014), the Court held that a bank that...
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...
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'...
A Solution For Cases Involving Land Issues And Monetary Damages
The Land Court Department of the Massachusetts Trial Court exists, in part, because issues involving title, easements, and the various other rights in property are complex enough that judges with special expertise are preferable. The Land Court's limited jurisdiction,...
How Does A Merger Affect An Acquired Company’s Attorney-Client Privilege?
A Massachusetts Superior Court judge recently ruled that, when ABC Corporation merged with and acquired XYZ Corporation, ABC Corporation held XYZ Corporation's attorney-client privilege over pre-merger communications with counsel, even when those communications...
U.S. Supreme Court to Hear Cases Regarding Mortgage “Strip Offs”
While the American economy has shown tentative signs of stabilization and recovery, the nation's courts continue to grapple with legal questions that emanate from the Great Recession and the bursting of the so-called "housing bubble." In one notable development, the...
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...
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...
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...
Massachusetts Superior Court Opinion Encourages Broader Use of Audiovisual Depositions
"The litigation process is -- or should be -- a search for the truth." So said a Superior Court judge recently in an opinion allowing a motion to take audiovisual depositions. See Littlewood v. Fed. Realty Investment Trust, et al., 2014 WL 6712468, *1-2 (Mass. Super....
Fremont Investment’s Mortgage Foreclosure Injunction Not Retroactive
A Massachusetts Superior Court judge has held that the 2008 injunction against foreclosure of certain Fremont Investment & Loan ("Fremont") mortgages did not apply to Fremont mortgages assigned to third parties prior to the entry of the injunction. Moronta v....
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....
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...
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...
Right-to-Cure Notice Naming Mortgage Servicer Deemed Effective
Naming a mortgage servicer as mortgagee on a statutory right-to-cure notice satisfies the requirements of the Commonwealth's pre-foreclosure right-to-cure statute, according to a recent decision of the Appeals Court. In Haskins v. Deutsche Bank National Trust Co, 86...
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...
Mechanic’s Lien Enforced on Basis of Email Exchange
This post was written by Jameson C. Billings, a Dartmouth College junior who worked at during the fall of 2014. As we conduct more business over email, electronic contracts are becoming commonplace--and in many cases they are legally...
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...
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,...
Trial Court Declines to Extend Alimony Despite Wealthy Former Husband’s Ability to Pay
The Alimony Reform Act of 2011 provides for alimony to presumptively terminate when a payor reaches full retirement age unless a Court finds that a material change in circumstances has occurred and there is clear and convincing evidence to support an extension of the...
Massachusetts Court Sheds Light on Procedure for Appealing a BHAC Determination
In Maiocco v. Leggs, 32 Mass.L.Rptr. 228 (2014), Judge Robert Gordon considered when a party's right to appeal a decision of the Beacon Hill Architectural Commission terminated. Under 1995 Mass. Acts, Chapter 616, the proponent of a construction project involving...
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...
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...
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...
Massachusetts Tree Statute Guards Greenery – and Fall Finery, Too
If during the last two to three weeks you have spent any time on a soccer field, in the woods, or on the Massachusetts Turnpike, you have probably noticed that the Commonwealth's deciduous trees have been enjoying their annual star turn. The spectacular colors have...
You Just Got Divorced. Is Your Ex Now Allowed To Sue You Too?
In a recent case, the Massachusetts Appeals Court explored the issue of preclusion - once a person has gotten divorced, can his or her ex-spouse sue them for related conduct? The answer is yes, but not always. The Appeals Court explored both sides of res judicata -...
Sixth Circuit Joins Majority in Rejecting Discovery Rule for UCC Check Conversion Claims
The United States Court of Appeals for the Sixth Circuit has joined with the majority of courts in rejecting application of the discovery rule for check conversion claims under the Uniform Commercial Code ("UCC"). In Pate v. Huntington Nat'l Bank, et al., 560...
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...
Tender of Full Repayment of Principal is Condition of Rescission
The 7th U.S. Circuit Court of Appeals has held that borrowers are not assured of conditions that would allow them to rescind a home mortgage loan pursuant to the federal Truth in Lending Act ("TILA"), 15 U.S.C. 1601 et seq., and that a court can condition rescission...
“Self-Modifying” Alimony Provision Struck Down by Massachusetts Appeals Court
In a recent Appeals Court case of Hassey v. Hassey, a provision in a divorce judgment requiring a husband to pay thirty percent of his anticipated future gross income to his former wife was struck down as inconsistent with the terms of the Alimony Reform Act of 2011....
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...
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,...
Identity Theft Prevention Satisfies FCRA’s Legitimate Business Need Requirement
The 6th U.S. Circuit Court of Appeals has held that identity theft prevention satisfies the Fair Credit Reporting Act's ("FCRA") Legitimate Business Need requirement for purposes of FCRA compliance. The Court in Bickley v. Dish Network, LLC, 2014 WL 1887565 (6th Cir....
What are the Procedural Differences Between a Probate and Equity Case?
With the recent enactment of the Massachusetts Uniform Trust Code ("MUTC") and the Massachusetts Uniform Probate Code ("MUPC"), several procedural differences have become more prominent between probate and equity cases pending at the Probate and Family Courts.First,...
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...
Can a Non-Signatory to an Agreement to Arbitrate be Compelled to Arbitrate?
In yet another decision that underscores the "elemental tenet" of arbitration that a party cannot be compelled to arbitrate if he or she has not agreed to arbitrate, the Massachusetts Appeals Court recently ruled that a non-signatory to an agreement cannot be...
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...
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...
Highest Court Rules that Temporary Alimony is “Separate and Distinct” from General Term Alimony
The enactment of the Alimony Reform Act of 2011, which went into effect March 1, 2012, was hailed as the most dramatic reform in family law in decades. The sweeping new law effectively ended the reign of lifetime alimony in Massachusetts, tying the length of time that...
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...
Do you “Like” mandatory arbitration? If so, “Like” this cereal
A couple of weeks ago, social media exploded with outrage over a news story in the NYT that reported that, by "liking" a brand on Facebook, a consumer would lose his or her ability to sue the company. The story referred to an update in General Mills's online "terms of...
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...
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...
Supreme Court Breathes New Life Into $185M Arbitration Award Against Argentina
BG Group plc won a major victory at the U.S. Supreme Court last month when the Court upheld an arbitration award requiring Argentina to pay BG Group more than $185 million. The case is yet another example of the deference that arbitration awards receive in U.S....
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...
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...
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...
Working into Arbitration: Binding Arbitration Pursuant to Employee Handbooks
Employers and employees everywhere should check their employee handbooks - if it has an arbitration provision, it is likely any disputes between the two will take place in arbitration rather than in court. In a recent decision, Daniels v. Raymours Furniture Company,...
Recent Developments in the Rapidly Changing Bitcoin Market
On February 27, 2014, posted a blog article regarding the volatile market for Bitcoin and the rapid rise of the cryptocurrency over the past two-three years. Over the past month, there have been several important new developments. First,...
Principle of International Comity Suffers a Setback in Chevron-Ecuador Case
Earlier this month, a federal judge in the Southern District of New York spun a new twist in the long-standing legal battle over environmental contamination in the Lago Agrio region of Ecuador. In a 485-page ruling, Judge Lewis Kaplan ruled that lawyers leading the...
Massachusetts Partition Actions: Methods for Disposing of Partitioned Property
Massachusetts partition law provides four methods for partitioning real estate: physical division, private sale, public auction, and "set-off" (a buy-out of the entire property by one or more co-owners). Each method has its advantages and disadvantages, as well as...
First Circuit Affirms Culhane, Woods, and MERS Assignments of Mortgages
The United States Court of Appeals for the First Circuit has reaffirmed its prior holdings in Culhane v Aurora Loan Services of Nebraska, 708 F.3d 282 (1st Cir. 2013) and Woods v. Wells Fargo Bank, N.A., 733 F.3d 349 (1st Cir. 2013) regarding Mortgage Electronic...
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...
No Expansion and No Contraction: The Scope of Judicial Review of Arbitration Awards
In a recent decision, the Ninth Circuit Court of Appeals ruled that parties cannot agree under a contract to limit the scope of judicial review of an arbitration award as delineated by the Federal Arbitration Act (the "FAA"). This ruling complements a 2008 Supreme...
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...
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...
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...
Contemporaneous Evidence of Off-Record Assignments Satisfies Ibanez
The Massachusetts Land Court division of the Trial Court has affirmed that contemporaneous evidence of off-record assignments are adequate to satisfy the requirements of U.S. Bank N.A. v. Ibanez, 458 Mass. 637 (2011). In May, 2006, Lisardo Murillo acquired a property...
Counsel’s Role in Reducing Costs international Arbitrations
Parties to a dispute often cite cost control as a reason for choosing arbitration over litigation. To achieve the goal of keeping arbitration costs down, it is important for counsel to play an active role in advocating for cost control. Without counsel's vigilant...
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...
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...
Bridging the Gap: Arbitration’s Impact on the Panama Canal
In August of this year, the Panama Canal will turn one hundred years old. An engineering marvel from its inception, the canal serves as a shortcut for 13,000 ships every day, making it one of the busiest and most important commercial waterways in the world. Efforts...
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...
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...
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...
Seventh Circuit Dismisses Allegations of Fraudulent Force-Placed Insurance
The Seventh Circuit Court of Appeals recently dismissed a borrower's putative class action lawsuit under the Illinois Consumer Fraud and Deceptive Business Practices Act, alleging that a lender and insurer fraudulently insured the borrower's property after the...
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...
Drawing the Line: The Dispute Between China and the Philippines Over Territoriality
Lost in the hype surrounding the Senkako-Diayou dispute between China and Japan over territoriality is another similar conflict that also involves China. For the last few years, China and the Philippines have been contesting a 2,000 mile stretch of sea that not only...
As a Trustee or Personal Representative, How Do I Resign From My Fiduciary Appointment?
With the recent enactment of the Massachusetts Uniform Trust Code and the Massachusetts Uniform Probate Code, there are procedural changes governing how an appointed fiduciary voluntarily resigns. Amended M.G.L. c. 190B, § 3-610 governs the resignation of a personal...
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....
Washington and Colorado State Banking Associations Request Federal Guidance Regarding Banking Activities with Marijuana Producers
In the fall of 2012, voters in both Colorado and Washington introduced a new era in the United States when they voted to legalize the sale of marijuana. In response to the landmark referenda, the Department of Justice issued a revised "Guidance Regarding Marijuana...
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...
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....
CEO’s Indirect Statements Can Give Rise to Retaliation Lawsuit
The First Circuit Court of Appeals issued a decision last week allowing a retaliation lawsuit to proceed because the company's CEO told others that he wanted to "get rid of" an employee, even though there was no evidence that the CEO made those statements directly to...
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...
Mississippi Joins Jurisdictions Approving Contractual Reduction of Check Fraud Reporting Deadline
Mississippi has joined the growing list of jurisdictions that have approved contractual reductions of the one-year reporting deadline for certain check fraud claims found in Uniform Commercial Code ("UCC") section 4-406(f). In Century Construction Co., LLC v....
Rule Change: The Revised Commercial Arbitration Rules of the AAA
In an important development, the American Arbitration Association has revised its Commercial Arbitration Rules to include a host of changes that seek to streamline arbitration and make the process more cost-effective and tightly managed. The rules, which can be found...
Federal Circuits Split on Required Action to Effect Rescission under Truth-in-Lending Act
The federal Circuit Courts of Appeal are split on the important question of what is required of a consumer who claims not to have received the proper disclosures from a lender and who wishes to rescind the loan within the three-year period following the closing. The...
RESPA Qualified Written Requests May Not Be Used to Create Foreclosure Defenses
The United States District Court for the District of Massachusetts has held that failure to respond to a purported Qualified Written Request, sent to a loan servicer pursuant to the Real Estate Settlement Procedures Act, 12 U.S.C. 2605 et seq. ("RESPA"), cannot serve...
Massachusetts Rules of Civil Procedure Amended to Provide “Clawback” of Privileged Materials
The Massachusetts Rules of Civil Procedure govern almost all civil cases in Massachusetts state courts. Next year, new amendments to the Rules will take effect, significantly impacting the discovery process for many state lawsuits. Most of the new amendments govern...
Chancery Confidential: Third Circuit Eliminates Confidential Arbitration
In a rare setback to the growing arbitration field, the Third Circuit Court of Appeals recently struck down on a 2 to 1 vote Delaware's confidential state-sponsored arbitration program. The Court held that, as with the chancery courts, the public had a First Amendment...
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...
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...
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...
The Arctic 30: Does Arbitration Have The Power To Free Them?
An international crisis appears to lurching towards a resolution, as the Russian government has dropped piracy charges against 30 Greenpeace activists it arrested last month in the Arctic Circle. Instead, Russia will charge the protestors with "hooliganism," which is...
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,...
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,...
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...
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...
Claims Against Failed Institutions Must Comply with Claims-Processing Regime Set Forth in FIRREA
The U.S. Court of Appeals for the First Circuit recently confirmed that the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) provides a firm jurisdictional bar to consumer protection claims based on loans made by failed institutions but...
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...
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)...
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...
Try Title Action May Be Available Against Mortgagees, Or Not
A decision from the Land Court has muddied the waters regarding whether a mortgagor can raise a claim under the Massachusetts try title statute against a mortgagee. A 2012 Land Court decision by Judge Robert B. Foster found that the try title statute was unavailable...
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...
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...
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...
Federal Circuit Expands Its Appellate Overview in ITC Cases Involving Arbitration
In a closely watched decision, the U.S. Court of Appeals for the Federal Circuit recently determined that an order of the International Trade Commission ("ITC") terminating an investigation on the basis of an arbitration agreement is an appealable final determination...
Title Insurer Not Required to Defend Suit Against Validity of Underlying Debt
The Massachusetts Supreme Judicial Court has held that a title insurer has no duty to defend a bank against a third-party suit challenging the validity of the underlying debt, absent a specific provision in the title insurance policy envisioning such a claim. Deutsche...
Fifth Circuit Cements Principle of Federal Deference to Arbitration Awards
In yet another example of the great deference accorded to arbitral decisions by U.S. Federal Courts, the Fifth Circuit recently declined to vacate or modify an award based on allegations of arbitrator misconduct. Despite intimations that the conduct of the opposing...
May Massachusetts employment laws be applied outside the state?
The Supreme Judicial Court recently held that a Massachusetts company could be sued by non- Massachusetts residents for conduct that occurred outside of Massachusetts. In Taylor v. Eastern Connection Operating, Inc., 465 Mass. 191 (2013), employees of a Massachusetts...
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...
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.,...
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...
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...
New IBA Guidelines of Party Representation international Arbitration
The International Bar Association ("IBA") recently released the "IBA Guidelines on Party Representation international Arbitration" ("Guidelines"). According to the preamble, the Guidelines are an attempt at normalizing the conduct of counsel relating to party...
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...
275 Washington St. Corp. v. Hudson River Int’l., LLC: Collecting Indemnification Damages in Commercial Leases
In a recent case, 275 Washington St. Corp. v. Hudson River Int'l., LLC, 465 Mass. 16 (2013), the Supreme Judicial Court ruled that a commercial landlord cannot recover post-termination damages under an indemnification clause until the original lease term expires. In...
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...
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...
The Role of Bifurcation in an Arbitral Hearing and its Real World Applications
In a major decision, an arbitral tribunal in the International Chamber of Commerce ("ICC") has issued a ruling on the liability of YPF, the state-controlled energy company of Argentina, for its role in the suspension of natural gas exports to Brazil. The claim that...
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...
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...
Mass. Gen. Law Chapter 93A — One Benefit of Litigating in Massachusetts
As a foreign attorney representing a party whose business dispute is governed by Massachusetts law, you might want to learn about the rights available under the consumer protection statute in Massachusetts, M.G.L. c. 93A. Massachusetts General Laws c. 93A, § 2 (a)...
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...
What Right Does a Losing Party Have to Vacate 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...
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...
Consumer Financial Protection Bureau Eliminates Dual Notice Requirement Regarding ATM Fees
The Federal Consumer Financial Protection Bureau ("CFPB") recently amended Regulation E, 12 CFR 1005.16 ("Reg. E"), to eliminate duplicative fee notice requirements on ATM machines. As a result of the March 26, 2013 amendment, banks will no longer be liable for...
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...
Fighting for Silver: The Legal Consequences of Nationalization in Bolivia
Seven years ago this week, one of the most significant chapters in Bolivian history began. With one stroke of the pen on May 1, 2006, then-newly-elected president Evo Morales issued a decree nationalizing all of Bolivia's oil and gas reserves. This was shortly...
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...
The Burgeoning International Arbitration Field in Southeast Asia
As more and more nations strive to cut themselves a piece of the international arbitration pie, Southeast Asia is a perfect example of a region where countries are looking to broaden their presence in the field of international arbitration. Recently, the Singapore...
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...
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...
Australian High Court Clears the Way for Enforcement of Arbitral Awards
One of the questions that is most often asked by clients is whether or not an award issued international arbitration - which is a private vehicle for dispute resolution - is enforceable and whether collection can be guaranteed to the fullest extent of the law. In...
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...
When Must An Employer Make A Reasonable Accommodation For An Employee’s Disability?
Most employers know that they have a duty to make a reasonable accommodation for an employee's disability or job restriction, but what that actually means in practice can be confusing. Statutes that require such accommodation are the Americans with Disabilities Act...
International Arbitration: Hearing Testimony by Videoconference
Testimony by videoconference international arbitration offers the disputants both a fair means for assuring that relevant evidence is heard and an effective tool for cost reduction. It is hardly surprising that lawyers frequently encounter challenges in obtaining the...
Modification of Child Support: What legal standard should be applied in a child support modification action?
On March 12, 2013, the Supreme Judicial Court ("SJC") in Morales v. Morales - SJC-11104 ruled that a divorced parent need not prove the widely recognized legal standard of "material and substantial change in circumstance" in order to modify a child support order in...
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...
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....
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...
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...
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...
Bankruptcy Court Rules Remainder Interests Not Subject to Homestead Exemption
In a "Chapter 7" bankruptcy proceeding, a debtor's assets are liquidated, and the proceeds are divided among the debtor's creditors. Some of the debtor's assets, however, may be exempt from liquidation under various provisions of federal or state law. One such...
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...
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...
Abuse Prevention Orders: Abuse and Substantive Dating Relationships
In a recent case, E.C.O. vs. Gregory James Compton (SJC-11259, March 13, 2013), the Massachusetts Supreme Judicial Court overturned a District Court Judge's extension of a G.L. c. 209A Abuse Prevention Order in favor of a 16-year-old girl whose father obtained a...
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...
First Circuit Upholds MERS Mortgage System Under Massachusetts Law
The First Circuit has affirmed a holding finding that the system under which mortgages are held in the name of Mortgage Electronic Registration Systems, Inc., commonly known as MERS, comports with Massachusetts law relating to mortgage transactions. In the underlying...
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...
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...
Tenant’s Corporate Parent Insulated from Lease Default Claim; But Liable for Use and Occupancy
Last Fall, the Massachusetts Appeals Court held in OMV Associates, L.P. v Clearway Acquisition, Inc., 82 Mass. App. Ct. 561 (2012), that a lessee's corporate parent could not be reached under traditional veil-piercing principles to pay the debt of a subsidiary that...
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...
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...
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...
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...
Kraft Power: Veil Piercing And The Survival of Actions Statute Collide
Where a plaintiff has been harmed by a company, and the principal of that company exercises "pervasive control" over it, a court may "disregard" the corporate form allowing the plaintiff to recover directly from the principal. What if the corporate principal has died?...
Parental Alienation: Parents Behaving Badly or a Mental Disorder?
In what are usually highly contentious divorces or child custody disputes, the term "parental alienation" has been coined to describe what is a form of emotional abuse that occurs when one parent actively works to align their child with him/her to the exclusion of the...
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...
Appeals Court Carves Out Condominium Exception to ‘Economic Loss Rule’
The "economic loss rule" prohibits a plaintiff from suing for negligence to recover "pure economic losses," such as lost profits or the cost of replacing an allegedly-defective product. The rule requires a showing of harm to person or property in a negligence case. If...
Proposed Parenting Coordinator Bill Seeks To Codify an Increasingly Common Practice
Although a "final judgment of divorce" terminates a legal marriage between spouses, all too often, the parties will remain embroiled in litigation for years to come, particularly with respect to issues surrounding the care and custody of their minor children. Even the...
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...
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...
Standing Is Limited In ‘Soldiers and Sailors’ Actions – For Both Plaintiffs and Defendants
Earlier this week, the Massachusetts Supreme Judicial Court (the "SJC") held that a plaintiff who is not a present mortgagee (or the mortgagee's agent) has no standing to bring an action under the Massachusetts Soldiers' and Sailors' Civil Relief Act for a...
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...
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...
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...
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...
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...
For Large Project Permitting Appeals, No Removal From Land Court’s Permit Session to Housing Court
In a decision handed down just last week, the Appeals Court ruled that a large project permitting appeal filed in the Land Court's six-year-old permit session cannot be removed to the Housing Court, since the Housing Court lacks jurisdiction over such matters. In...
Arbitration Confidential: How to Keep Your Arbitral Proceeding 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...
Three Strikes and You’re Out: Using Baseball Arbitration to Resolve International Tax Disputes
As more and more companies conduct business across international borders, questions of tax revenue recognition and transfer pricing taxes become more and more salient. Tax authorities in different nations, fighting over which country gets to tax the multi-national...
Foreclosure By Entry Is Effective Method for Mortgagee to Gain Fee Simple Title
The Massachusetts Land Court's decision this fall in HS Land Trust LLC v. Gonzalez, Civ. Action No. 11 Misc. 446482 (October 30, 2012), serves as a useful reminder that a foreclosure by entry - which often accompanies a foreclosure by sale - is a perfectly valid...
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...
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:...
Senator-elect Elizabeth Warren Appointed to Senate Banking Committee
The Democratic Steering Committee has approved the assignment of Senator-elect Elizabeth Warren, one of the most vocal critics of the financial services sector, to the Senate Banking Committee. Warren previously led a congressional oversight panel that criticized the...
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...
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....
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...
Department of Children and Families Records in Family Court
The Massachusetts Department of Children and Families (DCF) is the state agency that receives and responds to reports of abuse and neglect of children. Following a report of child abuse or neglect, DCF's investigation is documented with records that likely contain...
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...
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...
Make Sure Your Partnership/Shareholder Agreement Has Escape Hatches
Quite often, I find myself litigating partnership and close corporation disputes that could have easily been avoided had the partners just taken a little more care in drafting their agreements. The most common, avoidable problems are: No clear formula for evaluating a...
Promoting Efficient Discovery in Arbitration: the ICDR Guidelines Concerning Exchanges of Information
Countries with different legal traditions have vastly dissimilar approaches to discovery and the exchange of information. Whereas common law countries (and the U.S. in particular) favor broad discovery and the production of vast amounts of documents, European and...
Problems with Service of Summons and Complaint for Divorce
In practice, upon the filing of a Complaint for Divorce, Modification, etc., and our receipt from the court of the original Summons, we often effectuate service of Summons and Complaint on the opposing party by mailing the original Summons, with a copy of the...
Registering a Foreign Child Support Order in Massachusetts
Registering a child support order that was obtained in another state or even in another country is accomplished in Massachusetts by following the procedure outlined in M.G.L. c. 209D. Otherwise known as the Uniform Interstate Family Support Act ("UIFSA"), this...
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...
Pets Now A Consideration In Connection With Abuse/Harassment Prevention Orders
Signed into law on August 2, 2012 and effective October 31, 2012, Massachusetts now has new legislation applicable to the care and custody of domesticated animals (i.e., the family pet) in connection with abuse prevention/harassment orders, a/k/a restraining orders,...
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...
Registering a Child Support Order from Another State in Massachusetts
Registering a child support order that was obtained in another state or even in another country is accomplished in Massachusetts by following the procedure outlined in M.G.L. c. 209D. Otherwise known as the Uniform Interstate Family Support Act ("UIFSA"), this...
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...
Impoundment Procedure: It’s Not Just for Mitt Romney’s Testimony
The Boston Globe's recent request to the Norfolk County Probate and Family Court to vacate portions of an impoundment order issued during Maureen Sullivan Stemberg's post-divorce action in 1990 against her ex-husband, Tom Stemberg (the founder of Staples), and make...
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,...
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...
“What Happened in Vegas” is Fair Game in Divorce Court… and the “Cost” of a Weekend in Sin City Could be Alimony and Property Payments to Your Former Spouse
The Bachelor Party. In the UK, it's known as "Stag Night"; in France, "enterrement de vie de garcon" - literally, "burial/funeral of the life as a bachelor." For grooms-to-be across the globe, it is a time honored tradition, and in the US, Las Vegas is commonly known...
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...
Business Litigation Session Limits Partial Dispositive Motions
Prosecuting or defending a motion to dismiss or a motion for summary judgment can be a substantial undertaking. In a complex case a motion for summary judgment can consume a hundred hours or more of attorney time and tens of thousands of client dollars. At the same...
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"...
Allegations on ‘Information and Belief’ Not Enough to Stop Mortgage Foreclosures
One less-discussed but important aspect of the Supreme Judicial Court's ("SJC's") decision in Eaton v. National Federal Mortgage Association, 462 Mass. 569 (2012), is found in its most narrow ruling. Even though the Court held that the named plaintiff, Henrietta...
The ABCs of PC: What is a Parenting Coordinator (“PC”), and how can Parenting Coordination help you and your family?
According to the Guidelines for Parenting Coordination developed by the Association of Family and Conciliation Courts Task Force on Parenting Coordination, "[P]arenting coordination is a child-focused alternative dispute resolution process in which a mental health or...
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....
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...
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...
How Attachment Impacts Parenting Plans: Infants and Overnights
I recently attended the 49th Annual Conference of the Association of Family and Conciliation Courts in Chicago. The conference was entitled Attachment, Brain Science and Children of Divorce: The ABCDs of Child Development for Family Law. In addition to seminars...
Lance Armstrong’s Legal Battle Questions Fairness of Arbitration
Lance Armstrong's defense against the persistent doping allegations leveled against him, and the athlete's subsequent refusal to participate in the U.S. Anti-Doping Agency's prosecution of several doping-related charges against him, dominated sports headlines this...
Beyond Summary Process: The Preclusive Effect of Eviction Actions
Last year, in Bank of New York v. Bailey, 460 Mass. 327 (2011), the Supreme Judicial Court (the "SJC") ruled that a Housing Court judge presiding over an eviction matter could hear a post-foreclosure mortgagor's claim that the foreclosure sale allegedly divesting him...
SJC Decides No Retroactive Application in Favor of Adopted Heirs
Adopted children or "issue" cannot take from an irrevocable testamentary trust executed at a time when adoptees were excluded from the definition of "child" in such instruments, despite adoption legislation aimed at achieving precisely that goal, according to the...
The International Effort to Regulate and Criminalize Cyberattacks
It was recently revealed that the United States government has been launching cyberattacks on Iran's nuclear enrichment program's computer systems for years, with the purpose of delaying and obstructing the development of what U.S. intelligence believes are nuclear...
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....
In the Wake of ‘Connors,’ When Are Section 7 Zoning Appeals Viable?
Just about a year ago, in Connors v. Annino, 460 Mass. 790 (2011), the Supreme Judicial Court left no doubt that an abutter receiving "adequate notice" of issuance of a building permit must act fast (within thirty days of the issue date) to appeal the permit as...
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...
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...