As I have counseled many clients, a non-compete provision is different than most other contractual terms, because simply having mutual consent and consideration will not automatically render it enforceable for reasons of public policy. Thus, even in states like Massachusetts that are known to enforce non-competes, such restrictions will be deemed invalid unless they are reasonable in time and scope and also are necessary to protect against unfair competition – which occurs when the employee uses the company’s confidential information, trade secrets or goodwill to... more
As most attorneys know, a privileged communication only can be waived by the client, and when the client is an individual, it is obvious who controls that ability to waive. Things become murkier, however, when the client is a company. While controlling the privilege generally resides with the board of directors and/or those controlling the business entity, who can access privileged communications when a former senior manager becomes adverse to the company is far less clear. Until the end of 2016, John Mooney was the... more
While Rules 4.1(a) and 8.4(c) of the Massachusetts Rules of Professional Conduct prohibit attorneys from making false statements to third parties and/or engaging in conduct that is dishonest, fraudulent or involves misrepresentations, attorneys (and/or their agents) can use deception to act as “testers” to determine, for instance, if people are engaging in discriminatory or other illegal conduct. Nevertheless, as the plaintiff’s attorneys in Leysock v. Forest Laboratories, Inc. recently found out, getting creative in seeking to dupe people into providing information to bolster a claim... more
In a recent decision, the Massachusetts Supreme Judicial Court has made it clear that employers cannot take action against employees who lawfully use medical marijuana, as doing so is tantamount to denying a request for a reasonable accommodation under the Commonwealth’s disability discrimination laws. In Barbuto v. Advantage Sales and Marketing, LLC, the SJC reversed the dismissal of an employee’s handicap discrimination claim, alleging that her employer terminated her because of her lawful medical use of marijuana, and failed to engage in an interactive process... more
When two parties reside and/or conduct business in different states, any agreement between them almost always has a choice of law provision. Typically, such a clause is as simple as: “The Parties agree that this Contract shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts.” As the Superior Court held earlier this month in Oxford Global Resources, LLC v. Hernandez, however, such simple and straight-forward language is no guaranty that a court will abide by it. Oxford is a... more
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