The In-House Advisor

  • So You Want to be a GC…January 26, 2021

    While many attorneys aspire to be a General Counsel, the path to becoming a company’s chief legal officer can be even more convoluted than becoming a partner at a law firm. Recently, it was my pleasure to host an engaging roundtable discussion about what it takes to become a GC – and what takes to stay there.Three outstanding general counsel participated: Deanna Sheridan, of Spartan Race, Inc., Melanie Goins, of Care.com, and Ben Kaplan, of Velcro.

    Discussion topics included:

    • How the role of the GC as a legal counselor and business advisor differs from that of outside counsel or an Associate General Counsel.
    • The mentoring and skill development essential to becoming an institution’s Chief Legal Officer.
    • What you must do as General Counsel to understand the company’s business and have the business people understand you.

    A link to the webinar can be found here.… Keep reading

  • Lawsuits Over Consumer-Facing Websites Failing to Comply With the ADA Are Not Going AwayDecember 14, 2020

    Way back in May of 2018, I published a blog post concerning the burgeoning issue of whether consumer-facing websites must comply with the Americans with Disabilities Act and what that means.

    This issue has not gone away, and last month I participated in a webinar entitled Why CEOs Should Care If Their Website is ADA Compliant, discussing ADA website compliance in more detail and providing practical advice about how to protect your company from lawsuits and mitigate the costs if you are sued.

    Lawsuits in this area continue to be filed at a very high volume, and in-house counsel of businesses that have consumer-facing websites (among others) must stay up to speed on the relevant law and the actions they can take to protect their companies.… Keep reading

  • Be Sure Your Arbitration Clause Clearly States Who Will Decide Whether a Dispute Is ArbitrableNovember 10, 2020

    One of the prime reasons many companies require employees to arbitrate disputes is to ensure confidentiality. Indeed, absent an arbitration provision, an employee can file publicly available papers containing unfounded and scurrilous allegations that leave the employer with no recourse but to litigate or settle. Moreover, even if the employer eventually prevails, severe damage may be done by having its name dragged through the mud due to the publicity associated with the claims.

    As the recent decision in Boursiquot v. United Healthcare Services of Delaware confirms, however, merely having a clause mandating that disputes be arbitrated is not be enough to ensure confidentiality. And there is no reason to leave this to chance.

    In the Spring of 2016, Yvlande Boursiquot was a student beginning an unpaid internship with United Healthcare. As part of her onboarding with the company, Ms. Boursiquot was asked to sign an agreement entitled “Alternative Resolution for Conflicts Agreement,” and that Agreement included the following language:

    Except as it otherwise provides, this Agreement is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Agreement requires all such disputes to

    Keep reading

  • Even a “Bullet-Proof” Forum Selection Clause Might Be VulnerableAugust 20, 2020

    When Jeremy Hernandez, a California resident, went to work for Oxford Global Resources, a Massachusetts company, in 2013, he signed a non-competition agreement. In 2016, Hernandez resigned from Oxford and, apparently unbeknownst to Oxford, began working for one of its competitors. Several months later, Oxford received an anonymous tip that Hernandez had taken Oxford’s confidential, client information and was using it to solicit customers for his new employer. Shortly thereafter, Oxford sued Hernandez in the Superior Court in Massachusetts based on a forum selection clause stating:

    All suits, proceedings and other actions relating to, arising out of or in connection with this Agreement will be submitted to the in personam jurisdiction of … the courts of the Commonwealth of Massachusetts …. Venue for all such suits, proceedings and other actions will be in Massachusetts. Employee hereby waives any claims against or objections to such in personam jurisdiction and venue. [Emphasis added]

    Notwithstanding the foregoing language, Hernandez moved to dismiss Oxford’s complaint on the grounds of forum non conveniens and the Superior Court allowed that motion. Oxford appealed, and the Supreme Judicial Court of Massachusetts took the case on its own initiative (by-passing the Appeals Court). Surprisingly, the SJC … Keep reading

  • Returning to the Workplace: What Employers Need to KnowMay 29, 2020

    While there are myriad issues facing employers as we all return to the workplace, here are some of the most frequently asked questions and answers:

    What employers are most affected by these recommendations?

    The CDC and OSHA guidelines are likely to have the greatest impact on workplaces with an open floor plan and other areas where workers are in close proximity to one another, and workplaces that allow more than one employee to use the same workspace, office equipment, table, desks and other equipment.

    What liability does an employer face for COVID-19 in the workplace?

    Workplace illnesses and injuries are typically addressed by a state’s workers’ compensation statutory framework, with some exceptions. Generally, for an illness to be compensable under that system, the employee must have contracted it in the course and scope of employment and it must be related to the work performed by that employee.

    Because of the pandemic, and the spread of COVID-19, it remains to be seen whether COVID-19 will be considered a workplace illness in workplaces that are not on the front lines (health care, emergency response or other industries where contact with the virus is likely).

    There have already been cases filed in … Keep reading

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