The In-House Advisor

  • A Quick “Yes” Can Create a Binding Contract, Even If There Has Not Been Agreement on All TermsJanuary 03, 2019

    As I discussed in a blog post several years ago, even an informal email can constitute acceptance of a contractual offer. Moreover, just a few months ago, Judge Timothy Hillman took this principle one step further by ruling, in Witt v. American Airlines, that an exchange of emails can form a binding settlement agreement, even if the parties have not agreed to all of the terms of that settlement.

    In 2014, Diane Witt sued American Airlines for injuries she claimed to have sustained while on a flight. After litigating that case for more than three years, the parties finally engaged in serious settlement discussions. Ultimately, American Airlines’ counsel sent the following email to Witt’s counsel:

    I have been informed $15,000 is firm (together with acceptable release) and that the settlement must happen promptly before more costs are incurred. This really needs to get done this week and certainly before any further hearing for the experts have to spend any more time preparing for deposition.

    Witt’s counsel eventually responded: “Thanks for getting back to me. Ms. Witt accepts the settlement offer of $15,000. Please send the proposed release when you can.”

    Less than one month later, however, Witt’s counsel … Keep reading

  • Careless Employee Reviews Are Not Only Useless, They’re HarmfulDecember 19, 2018

    While employee reviews have obvious benefits from a Human Resources standpoint, implementing a policy that ensures employee reviews are well-crafted and accurate today, can go a long way toward insulating the company from potential liability tomorrow. Courts have consistently held that discharged or transferred employees can use performance reviews to show that they were treated differently based upon their membership in a protected class. In such “disparate treatment” cases, a performance review may establish or contradict that: 1) the employee was qualified for a position; and 2) someone outside of the protected class with similar qualifications was treated more favorably.

    When deciding whether an employee was “similarly situated” to someone who may have been treated more favorably, a court will consider “whether a prudent person, looking objectively at the plaintiff and her comparator would think them roughly equivalent, and similarly qualified for the position.”

    Employee reviews may be used as a tool to create evidence of work experience, or lack thereof. For example, if Employee A completed six significant projects in 2018, but Protected Employee B, who held a similar position, only completed three significant projects, employee reviews documenting the work experience of Employees A and B may be … Keep reading

  • Tips From The Inside: Bill Gabovitch, General Counsel, Primark US Corp.November 29, 2018

    In this installment of The In-House Advisor, we interview Bill Gabovitch, General Counsel at Primark U.S. Corp. Primark is a fast-fashion retailer, based in Europe, with 350 stores in 10 countries. The company’s first U.S. store opened three years ago – in the former Filene’s space at Downtown Crossing, Boston – and it now operates nine stores in five Northeast states. Bill is a former associate general counsel at Staples, a former associate at two Boston law firms, and a graduate of Indiana University and the University of Pennsylvania School Of Law. He lives in Newton, MA, with his wife Lauren and their daughters Rebecca and Naomi.

    The In-House Advisor: What do you see as the main focus of your role as in-house counsel, and how do you see that role evolving over the next few years?

    Bill Gabovitch: Overall, the value that an in-house counsel brings to the table is in how much he or she helps the business achieve its objectives with the lowest reasonable risk. Sometimes that involves helping on a transaction or a strategy, or choosing the right way to deliver the company’s products or services to the market, after properly assessing for … Keep reading

  • Waiver of the Attorney-Client Privilege in Connection with Internal InvestigationsNovember 12, 2018

    While most parties and their counsel are vigilant in keeping their communications confidential, so as to avoid any chance that the attorney-client privilege can be invaded, there are some situations in which a party makes a tactical decision to waive that privilege. When this happens, courts generally agree that such a waiver will extend to all communications on the same “subject matter” as the disclosed communications. Having said that, however, there do not appear to be any general guidelines or bright-line tests to determine what is meant by the subject matter of a communication. Rather, such analyses are done on a case-by-case basis.

    While trying to determine what a court will define as the scope of the subject matter of a particular communication can be a bit like reading tea leaves, a related area that is even more fraught with peril is where a party decides to have counsel undertake an investigation and then publicizes some or all of a report generated from that investigation. Indeed, this is the exact, and unfortunate, position in which the Hamilton County (Tennessee) Board of Education found itself earlier this year.

    In 2015, three members of a high school basketball team located in … Keep reading

  • Arbitration Clauses in Electronic Agreements May Be Difficult to EnforceOctober 09, 2018

    Electronic agreements have become a staple of today’s e-commerce world, and such agreements generally are as enforceable as those written on parchment and signed with a quill pen. One notable exception, however, is where the proponent of such an agreement seeks to enforce an arbitration provision. In that case, more may be required than simply having a clause stating that all disputes must be resolved through arbitration at the AAA, JAMS, or some other organization. Indeed, that is the hard lesson the defendants in Cruz v. Jump City Everett LLC (34 Mass.L.Rep. 586) learned earlier this year.

    In 2015, after visiting the defendants’ recreational trampoline facility with his two minor children, Elmer Cruz filed suit in Suffolk Superior Court, claiming that he suffered an injury at the establishment. The defendants moved to dismiss that claim, contending that Mr. Cruz had affixed his electronic signature to a “Participant Agreement” that included a clause requiring all disputes to be resolved via arbitration. Mr. Cruz countered by submitting an affidavit in which he asserted that (i) he does not speak English; (ii) his son, who does speak English, led Mr. Cruz to a computer screen, where the son entered various information and … Keep reading

Email Confirmation

Thank you for your interest in Burns & Levinson LLP. Please be aware that unsolicited e-mails and information sent to Burns & Levinson though our web site will not be considered confidential, may not receive a response, and do not create an attorney-client relationship with Burns & Levinson. If you are not already a client of Burns & Levinson, do not include anything confidential or secret in this e-mail. Also, please note that our attorneys do not seek to practice law in any jurisdiction in which they are not authorized to do so.

By clicking "OK" you acknowledge that, unless you are a current client, Burns & Levinson does not have any obligation to maintain the confidentiality of any information you send us.