The In-House Advisor

  • Arbitration Clauses Will Not Be Enforced Against Employees Who Engage in Interstate Commerce – and What Comprises Interstate Commerce Is Not Always ObviousApril 13, 2021

    As part of your company’s onboarding process, all employees sign an agreement making it crystal clear that if there ever is any dispute between them and the company, that dispute must be decided by an arbitrator in arbitration and not by a judge or jury in a court of law. Your agreement then adds a belt to those suspenders by itemizing a wide variety of specific claims that would be covered by the agreement and, thereby, subject to arbitration. Your agreement even specifically includes a statement to the effect that employees have a right to consult with an attorney of their own choice before signing the document. Surely, then, when an employee brings a suit in a court of law, you will be able to dismiss the claim and compel arbitration, right? Well, as GrubHub learned earlier this year, that may not be the case.

    From September of 2016 through July of 2019, Veronica Archer worked for GrubHub as a driver delivering food and other products to consumers. At or about the time her employment with GrubHub began, Ms. Archer electronically signed an agreement that included provisions akin to those described above. In October of 2019, Ms. Archer joined … Keep reading

  • 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

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.