The In-House Advisor

  • Key Changes to Massachusetts Noncompetes – Part IAugust 15, 2018

    Over the years, I have written blog posts related to a plethora of nuances concerning noncompetition agreements. While the signing into law last Friday of new legislation on noncompetes does not eviscerate them (despite advocacy on the part of some for such a result), there are a number of new mandates that significantly change the legal landscape – but only for noncompete agreements entered into on or after October 1, 2018. Here are what I believe to be the most significant changes to Massachusetts noncompete law:

    I. The definition of noncompetes does NOT include, and the new law will NOT apply to:

    • A. Covenants not to solicit or transact business with customers, clients, or vendors of the employer
    • B. Noncompetes in the context of the sale of a business or substantial assets thereof, when the individual is a “significant” equity holder and will receive “significant” consideration for the transaction
    • C. Noncompetes in connection with a separation agreement, if the employee is given seven days to rescind the agreement
    • D. Covenants not to solicit or hire employees of the employer

    II. To be valid, a noncompete MUST meet ALL of the following conditions:

    • A. The noncompetition period may
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  • The Supreme Court Rules That Class Action Waivers Are EnforceableJuly 30, 2018

    As I noted in a prior post, the differences between arbitration and litigation go well beyond the fact that arbitration generally is a quicker and less expensive process. As such, there are a host of reasons why a company may want certain disputes – including, but not limited to, those brought by its own employees – resolved through arbitration. Similarly, companies almost always want to avoid the risk of being sued in a class action. Recently, the U.S. Supreme Court, in its consolidated decision in Epic Systems Corp. v. Lewis; Ernst & Young LLP v. Morris; and NLRB v. Murphy Oil USA, Inc., ruled that class action waivers are enforceable.

    As Justice Gorsuch noted at the outset, while the three consolidated cases had different facts, they each essentially revolved around the same related questions:

    Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective ac­tions, no matter what they agreed with their employers?

    In the Ernst & Young case, Stephen Morris entered into an employment agreement with E&Y, stating that (i) all … Keep reading

  • Are You Accepting an Offer or Not?June 28, 2018

     

    We all learned pretty early on in law school that for a contract to be formed, there has to be an offer and acceptance. We also were taught that if, in responding to an offer, a party accepted some terms and proposed additional ones, that party was making a counter-offer, was deemed to have rejected the original offer, and no contract was formed. In the real world, it usually is clear whether an offer is being accepted or a counter-offer is being made. Nevertheless, and as the defendant in APB Realty, Inc. v. Georgia-Pacific LLC recently learned, a lack of precision in responding to an offer can lead to confusion as to whether or not a contract has been formed.

    In APB Realty, Georgia-Pacific was offering 88 rails cares for sale, “where is, as is.” APB was interested in buying those rails cars, and it made the following offer to Georgia-Pacific’s broker:

         Total for all 88 x Log Stake Railcars $1,636,000 (Including 16% Buyer’s Premium).

    Shortly thereafter, the broker responded as follows:

    Here are the two options that [Georgia-Pacific] has brought back for us to close the deal on.

    Option 1, basically states that for $61K, you

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  • Is Your Website ADA Compliant, and Should It Be?May 30, 2018

    The Americans With Disabilities Act prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Over the past few years, innumerable lawsuits have been brought against universities, banks, and businesses, claiming that they have engaged in unlawful discrimination under the ADA because their websites (1) act as “places of public accommodation,” and (2) are not fully accessible to people with visual impairments. (Often, these lawsuits concern the fact that, although a visually impaired person can use a “screen-reader” to convert text on a website into audio, if there is no subtitle to a non-text picture or image, that user would have no way of knowing that a picture or image exists, let alone what it might be.)

    While there have been cases holding that websites are not places of public accommodation, the trend seems to be otherwise. Some jurisdictions hold that a website may be a place of public accommodation if there is a connection between the site and a physical location. See, Keep reading

  • Don’t Risk Having an Equivocal Forum Selection ClauseMay 10, 2018

    As I discussed in a 2015 blog post, the language in a forum selection clause is critical if you want to ensure that potential litigation takes place on your “home court.” Indeed, as the defendants in Genis v. Campbell recently learned, having a less than all-encompassing and precise forum selection clause can lead to unintended results.

    Alfred Genis is a Massachusetts resident and a diamond laboratory scientist. In 2013, Genis met Martin Campbell, who, along with his brother, David, owned Pure Crystal, a company involved in growing laboratory diamonds. In October of that year, the three individuals executed what would later be referred to as the “October 2013 Agreement.” That Agreement indicated that Genis would be granted 25% equity in Pure Crystal and also would receive equity in two new companies to be formed. In that same month, the Campbell brothers formed the first of those companies, Kimberlite Applied Science, LLC, and Genis executed an “Employment Agreement” and a “License Agreement” with Kimberlite.

    By 2017, the relationship between Genis and the Campbells had broken down, and Genis filed suit in Massachusetts Superior Court, alleging that his intellectual property had been misappropriated and that he had not been granted … Keep reading

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