The In-House Advisor

  • 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

  • Keeping Internal Investigations (and Other Communications) PrivilegedMay 05, 2020

    Dennis Burke is the well-known surgeon who blew the whistle on a surgical practice at the Massachusetts General Hospital known as “concurrent surgery” or “double booking.” After Dr. Burke publicized that practice, MGH engaged attorney Donald Stern to investigate the matter, which led to the Stern Report. MGH also terminated Dr. Burke, who then sued the hospital, claiming that he was fired in retaliation for publicizing its concurrent surgery practices. As part of his discovery in that case, Dr. Burke sought the contents of the Stern Report, and the hospital resisted, claiming, among other things, that the Stern Report was protected from disclosure by the attorney-client privilege. The Superior Court ultimately disagreed, however, and, although the case settled while that decision was on appeal, the Superior Court’s analysis (available at 2019 WL 6197040) provides a variety of points that should be of interest to any in-house counsel who is concerned about keeping internal investigations (and other communications) confidential.

    First, while MGH asserted that the Stern Report was privileged, the Court focused on two factors to repudiate that assertion: (i) the engagement letter with Attorney Stern did not indicate that any report authored by Attorney Stern would be imbued with … Keep reading

  • Second In-House Counsel Roundtable Discussion on COVID-19April 06, 2020

    Last Thursday morning, the In-House Advisor convened a second video conference of General Counsel and Corporate Counsel to discuss how their businesses are dealing with the COVID-19 crisis. As with the prior meeting, the in-house counsel present were from entities ranging from small, local companies, to large, multi-national enterprises. Here are some of the key takeaways from last week’s session:

    Work from Home

    • Don’t assume that because people are working at home everyone is available all the time
      • People with small children have to take care of them; people with school-age children have to homeschool them.
      • People with roommates may not be able to talk/video conference all the time
    • Don’t assume that people who had been working at home part time can adapt any quicker and better than others. They were used to a different pace and working part time, so keep that in mind when you reach out to them.
    • Everyone agreed that you have to put up boundaries from work so that you don’t burn out, but no one had a great way to do this as a practical matter.
    • Video conferences are much more effective than telephone calls. People are more engaged and more get
    Keep reading

  • In-House Counsel Roundtable Discusses How Their Companies Are Addressing Business And Legal Issues Related To COVID-19March 19, 2020

    This morning, the In-House Advisor convened a video conference of 15 General Counsel and Corporate Counsel to discuss how their businesses are dealing with the COVID-19 crisis. The in-house counsel represented were from entities ranging from small, local companies, to large, multi-national enterprises. As a lead-in to the roundtable discussion, a brief presentation was given by two crises management experts, T.J. Winck and Dan Cence, of Solomon, McCown and Cence. Some of the key takeaways from the presentation and roundtable discussion were as follows:

    Communications

    • One of the best ways to keep people in your organization calm is to repeatedly and consistently send out messages to everyone. You are better off saying too much than too little. Among other things, the in-house counsel attending said that their businesses are:
      • Sending out daily emails that goes out to everyone with an update.
      • Having “town hall” meetings with questions and answers once per week.
      • Maintaining an intranet page with updated Covid information.

    Crisis Management

    • Be sure to have at least one member of your Crisis Management Team constantly monitoring the CDC and WHO, as new information is constantly coming out.
    • While everyone would like to think that the situation
    Keep reading

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