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Electronic Service Requested Lawyers Weekly 10 Milk Street., 10th Floor Boston, MA 02108 New February 2015 England - - Vol. 13, No. 1 IN-HOUSE Baker Signet 42 = “New England” Utopia Black 89 points = “In-House” ‘Cat’s paw’ retaliation case fails at 1st Circuit Fired employee cannot prove unlawful animus

By Eric T. Berkman

An employee who was fired for timecard violations that he claimed were reported to management out of retaliatory animus could not sue his employer under a “cat’s paw” theory of liability, the 1st U.S. Circuit Court of Appeals has ruled. Under the “cat’s paw” theory, an employer who disciplines or fires a worker for legitimate reasons can still be held liable for discrimination WIKIPEDIA COMMONS or retaliation if the information the Kohl’s Department Stores can’t be held liable for failing to accommodate a diabetic sales associate’s request to decision-maker is acting on was work only a midday shift, the 1st Circuit rules in a split decision. provided for discriminatory or retaliatory reasons. ISTOCK In the case before the 1st Circuit, the plaintiff The plaintiff employee claimed that the supervisors who reported employee his timecard violations to an upper-level manager — claimed that ADA suit denied over who, in turn, made the decision to fire him — did the supervisors so because they resented that he took leave under who reported the Family and Medical Leave Act. Accordingly, the his timecard violations did so plaintiff argued, the defendant employer should be because they failure to negotiate held liable for FMLA retaliation. resented that he But the 1st Circuit disagreed, affirming a U.S. took leave un- District Court judge’s summary judgment for the der the FMLA. Kohl’s Department Stores not liable, 1st Circuit says defendant. Continued on page 11 By Thomas E. Egan an earnest attempt to discuss employee’s ADA rights forfeited other potential reasonable when she gives up,” he said. “Such A department store could accommodations,” Judge Juan R. a holding demands too much not be held liable for failing to Torruella wrote for the majority. resilience and persistence on the Co. waived arbitration accommodate a diabetic sales “[W]e conclude that [the part of a disabled and stressed-out associate’s request to work only a employee]’s refusal to participate employee, and takes away from midday shift, the 1st U.S. Circuit in further discussions with jurors a task they are well-suited with ‘litigation conduct’ Court of Appeals has ruled in a [the employer] was not a good- to perform.” split decision. By Brandon Gee her claims should be determined by faith effort to participate in an The 30-page decision isEqual The defendant employer the arbitrator. interactive process.” Employment Opportunity Com- argued that it complied with its A defendant corporation that Judge Kenneth W. Salinger Judge William J. Kayatta Jr. mission v. Kohl’s Department actively litigated its former CEO’s duty under the Americans with Stores, Inc. disagreed. Disabilities Act to engage in an dissented. lawsuit for six months could not Donna J. Brusoski of Virginia “The court finds that Arctic interactive process regarding “As best as I can tell, this is the then compel arbitration after its argued on behalf of the EEOC. Sand waived any contractual reasonable accommodations, but first time that any circuit court motion to dismiss was denied in Maine attorney Melinda J. right to arbitrate Dr. Shalaby’s that that the employee refused to has held that an employer can part, a Superior Court judge in claims by deliberately waiting Caterine represented the take part in that process. reject an accommodation request Massachusetts has found. six months before seeking to employer. A 2-1 majority of the 1st Circuit backed up by a doctor’s note, The defendant, Arctic Sand compel arbitration, and by actively refuse to offer an accommodation Technologies Inc., alleged a agreed. Shift request litigating the case in Superior Court “The refusal to give [the that it has determined it can contractual right to binding in the meantime,” the judge wrote. Pamela Manning, who suffers employee]’s specific requested make, falsely claim that any arbitration under its employment “It made no attempt to invoke from Type I diabetes, was accommodation does not accommodation must be offered agreement with plaintiff Nadia its alleged contractual right to employed as a full-time associate necessarily amount to bad faith, to all workers whether disabled Shalaby, and argued that any so long as the employer makes or not, and then declare the Continued on page 10 questions about the arbitrability of Continued on page 7 page 2 | New England IN-HOUSE | FEBRUARY 2015 Hearsay [email protected]

alleges that he formed a partnership with the Winklevoss defendants and is entitled to 50 percent of the Facebook settlement. Alternatively, Chang double cross asserts that he is at least entitled to 15 percent of the proceeds based on a November 2004 Internet entrepreneurs Cameron and memorandum of understanding that gave Tyler Winklevoss have won a motion for him the option to exercise a 15 percent stake summary judgment in a multi-million-dollar in ConnectU if conditions were met. AP PHOTO/EVAN AGOSTINI Facebook-related lawsuit resulting from a CAMERON AND TYLER WINKLEVOSS soured collaboration. ConnectU itself also was originally To reach the decision, a Massachusetts named a defendant in the suit. In an April the case.” Billings, however, accepted the writes. “While they agreed on little else (who Superior Court judge, Thomas P. Billings, 2011 decision on the defendants’ motion to defendants’ characterization of the finding was at fault, who owed what to whom, etc.), created a small rift of his own with his dismiss, however, Judge Peter M. Lauriat as mere “footnoted dictum.” they clearly agreed that the venture was colleagues on the state’s Business Litigation noted that “because ConnectU is now wholly “Respectfully, I disagree with my colleague, over, and their conduct thereafter confirmed Session bench. owned by Facebook, Chang cannot recover the motion judge, on this point,” Billings it. Given the informality with which this Just as the Winklevoss twins famously from ConnectU. Rather, he would have to writes in the Dec. 24 order granting the partnership (if it was one) was administered claim that Facebook founder Mark recover from the Winklevoss defendants Winklevosses summary judgment. “… and accounted for, it should come as no Zuckerberg ripped off their ConnectU social a percentage of the settlement proceeds in Under the law of Delaware, where ConnectU surprise that both sides decided, eventually, network, plaintiff Wayne Chang proportion to his interest in ConnectU, as LLC was organized, members of an LLC are simply to walk away — at least, until the alleges that the Winklevosses cheated determined by a fact finder.” not obligated personally on the debts of the Facebook settlement.” him out of a stake in ConnectU — and At a hearing in February 2013, LLC ‘solely by reason of being a member Chang’s lawyer, Alan D. Rose Jr. of Boston’s a $65 million settlement the twins Judge Mitchell H. Kaplan encouraged or acting as manager of the limited liability Rose, Chinitz & Rose, says “we respectfully ultimately reached with Zuckerberg Chang to dismiss ConnectU from the company.’ … It follows that a contract claim disagree with the decision and will appeal.” and Facebook. suit based on Lauriat’s finding. against a corporation does not, upon a Winklevoss lawyer Tyler Meade of Chang is an accomplished “It would appear that the proceeds change in ownership, become a claim against California’s Meade & Schrag declines to — that the only asset of ConnectU entrepreneur, too, most famous for BILLINGS its former shareholders.” comment. founding Crashlytics, which was were the proceeds of the settlement,” Billings’ reversal of Lauriat on that point The defendants opened their memorandum acquired by Twitter in 2013 for more Kaplan said at the hearing, according knocked out Chang’s “option claim” against in support of their motion for summary than $100 million. His 2009 lawsuit stems to a transcript. “And this lawsuit is about the Winklevoss defendants. Billings also judgment by stating that it was “based on from a plan five years earlier to integrate that, and ConnectU doesn’t assert any right dismissed Chang’s “partnership claim,” the principle … that a party may not disavow the Winklevosses’ ConnectU with Chang’s independently to those proceeds; correct?” largely on the basis of an online chat between a partnership when the changes of profit file-sharing service i2hub — a plan that was Chang subsequently dismissed ConnectU Chang and Tyler Winklevoss. seem remote and then, four and a half years aborted the following year. from the suit voluntarily. At the summary “What comes through most clearly in the later, take the opposition position after his The twins’ father, Howard Winklevoss, and judgment phase, Chang argued that Lauriat’s May 25[, 2005] chat is both sides’ eagerness former associates have obtained a recovery ConnectU co-founder Divya Narendra also finding that any recovery would have to come to extract themselves from one another and exclusively from their own efforts.” are named as defendants in the suit. Chang from the Winklevoss defendants was “law of their shared business venture,” Billings — Brandon Gee FEBRUARY 2015 | New England IN-HOUSE | page 3 Trade-secret plaintiff can’t audit all of rival’s computers are limits as to the types Requested relief of inspections a court will ‘a bridge too far’ permit. “This means you may need to think of other ways By Eric T. Berkman to get at the information,” A biotech company that claimed an employee he said. “One workaround BECKWITH stole trade secrets from it and then took them might be to serve a Rule Case sends to a competitor was not entitled to a forensic 30(b)(6) notice, which message search of all the computer devices used by the would require the company to hiring new employer’s personnel, a Superior Court to designate and prepare employers judge in Massachusetts has ruled. a witness to testify with The judge, Dennis J. Curran, had previously respect to the state of its issued a preliminary injunction ordering electronic affairs.” the employee in question to turn over all the Perlman also said the decision indicates computer and storage devices she had used that, in some cases, it might be a good idea since she started working for her former to ask for less than what one wants. employer, the plaintiff, and to provide all log- “The plaintiff asked for a veritable audit in and password information necessary to of all the company’s servers and systems,” access any personal email accounts she had said Perlman, a lawyer at Hirsch, Roberts, used. She apparently failed to comply with Weinstein. “Since it appears that everybody those measures and was found in contempt. understands what files are at issue, perhaps The plaintiff, InVivo Therapeutic Corp., if the plaintiff had said, ‘We want to search argued that without the additional requested all computers for the following documents,’ relief, it would suffer irreparable harm at the that might have been a little more palatable hands of defendant PixarBio Corp. to the judge.” However, Curran was not persuaded, Michael L. Rosen of Foley Hoag in Boston, even though he said he “suspected” the who also handles trade-secret matters, said he employee turned over sensitive information could sympathize with the plaintiff desiring to PixarBio. more access than Curran would provide, but “InVivo wants forensic access to all of that judges in cases like InVivo are confronted with very difficult questions about how PixarBio’s computers of all its employees,” extensive a search — which could turn up a Curran wrote. “This is, to borrow a phrase, significant amount of irrelevant and highly ‘a bridge too far.’” confidential information — is appropriate. Instead, he said, “a reasonable middle Rosen also noted that forensic consultants ground” was his suggestion that InVivo are becoming increasingly important to select the PixarBio employee most likely attorneys in all types of litigation. to have been sent the stolen data and for “They’re really becoming partners with the there to be an inspection of that employee’s attorneys in pursuing discovery,” he said. devices. He went on to note that InVivo had “This case illustrates that.” identified the employee and that PixarBio Boston attorney Russell Beck, another “does not dispute that designation.” trade-secret expert, said the decision serves The five-page decision is InVivo as a reminder that “the sins of the father Therapeutic Corporation v. PixarBio cannot be visited on the children.” Corporation, et al. In other words, Beck said, the mere fact Equitable principles that a departing employee has indisputably Pioneers in the field of Executive Advocacy stolen trade secrets does not automatically Paul F. Beckwith, a lawyer at Goulston mean that the new employer is equally, & Storrs in Boston, represented defendant or even partially, culpable. Accordingly, Providing strategic guidance and PixarBio. He said he thought Curran tried to a court is going to analyze the employer’s apply equitable principles as best he could in legal representation for over three decades blameworthiness before ordering it to the matter before him. submit to a wholesale forensic investigation to executives, professionals, principals “Don’t forget, this [order] came after we had by the plaintiff’s expert. two hearings in court,” Beckwith said. “The “All too often, we forget that having a and corporate officers regarding remedy was agreed upon in court and discussed smoking gun as to one defendant does not by both parties and the judge. He allowed us to their individual rights and obligations necessarily justify tarnishing the other come to this resolution ourselves and drafted defendants with the same brush,” the Beck, the memo and order after the fact.” Reed Riden partner said. Beckwith further emphasized that a Shilepsky Hartley Michon Robb’s attorneys have been search of one laptop of the employee who Waivable privilege was designated for inspection turned up recognized as leaders in their field by the College of Labor Defendant Yajing Hernandez worked as no sensitive information. He said he was and Employment Lawyers, Chambers USA, Super Lawyers®, a research associate for InVivo, a company confident a search of the employee’s other © with offices in Cambridge that researches Best Lawyers In America and Martindale-Hubbell. laptop also would turn up nothing. and develops technologies to treat spinal More broadly, Beckwith said, the case cord injuries. Much of InVivo’s research is sends a message to hiring employers to use highly confidential. caution when there is a pre-existing non- In November 2013, InVivo CEO Frank compete in place. Reynolds left to form PixarBio. According to “What our client did here was insist in the plaintiff, PixarBio initially billed itself as [its] offer letter of employment that no a developer of Parkinson’s disease therapies. confidential information from [the] previous But eventually its mission apparently shifted to employer come to the new company,” he researching spinal cord treatment technologies, said. making it a direct competitor of InVivo. InVivo’s attorney, Timothy E. Maguire Nancy S. H. James Katherine J. Barbara A. Brian J. Hernandez, who allegedly had access to Shilepsky Hartley Michon Robb MacDonough of Greenberg Traurig in Boston, declined InVivo’s trade secrets and had signed a non- to comment. However, C. Max Perlman, a competition and confidentiality agreement, Boston attorney who handles trade-secret resigned effective Sept. 18, 2014. According issues, said the order shows that, even in the to the plaintiff, she refused to disclose her Shilepsky Hartley Michon Robb LLP | www.shilepsky.com | 617.723.8000 most problematic cases, when there is strong evidence of theft and even obstruction, there Continued on page 4

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New $2M verdict against R.I. company upheld - England IN-HOUSE Baker Signet 42 = “New England” Utopia Black 89 points = “In-House” Despite ‘late’ sales of the materials thereby generated. still in its early stages due to the parties’ The defendant agreed that, for a period earlier efforts ‘to resolv[e] the matter as Publisher demand for jury of 17 years beginning on Oct. 22, 2007, it opposed to litigat[e] it.’” Susan A. Bocamazo, Esq. would exclusively sell to the plaintiff 100 The defendant conceded that it suffered [email protected] By Thomas E. Egan percent of “all scrap plastic, other scrap, no prejudice as a result of the amendment in Vice President of Editorial second quality materials, downgraded terms of its ability to prepare for trial, since A $2 million jury verdict holding a Henriette Campagne materials, recyclable materials not reused manufacturer of plastic film products liable it had two and a half years after the amended [email protected] internally and aged film.” The term for breaching a settlement agreement with complaint was filed to ready its case. “aged film” was added to the settlement Content Editor a broker has been upheld by the 1st U.S. The 1st Circuit said a court-imposed agreement near the end of settlement “moratorium” on discovery had been Brandon Gee Circuit Court of Appeals even though the [email protected] negotiations and was not defined elsewhere imposed with the goal of facilitating broker waited almost two years to make a ______in the agreement. settlement negotiations. The discovery jury demand. Design Director The defendant manufacturer argued that The parties began to dispute several stay was later lifted on the understanding Lora Wegman the plaintiff broker waived its right to a jury aspects of the agreement, including the that the parties would not take any steps to trial by not making a jury demand until 23 defendant’s duty to sell aged film exclusively interfere with settlement negotiations. Designer months after filing suit. to the plaintiff. “It was thus reasonable for National Sean Quarles In July 2009, the plaintiff sued the The 1st Circuit disagreed. Plastics to delay its request for a jury trial ______“The time period that elapsed between [the defendant in federal court in Rhode Island, until it became clear that settlement would Advertising Director claiming damages stemming from Toray’s plaintiff]’s filing of the initial complaint and not be forthcoming,” Lynch stated. “This Scott Ziegler its demand for a jury trial was significant, alleged failure to sell 100 percent of the was not, as Toray would have it, simply a agreed materials to National Plastics and Account Executives to be sure, and such a long delay would case of an unexplained last-minute change requesting specific performance of the Melanie Footer ordinarily counsel against excusing a jury in tactics.” settlement agreement’s auditing provisions. Joan McGonagle waiver,” Chief Judge Sandra L. Lynch wrote She noted, however, that “a party takes a The original complaint did not contain a Kelsey Karimi for the unanimous 1st Circuit panel. “But considerable risk in delaying the making of Elaine Fanning jury demand. we agree with the district court that the a jury demand.” ______reason offered for the delay — emphasis on After two years of settlement negotiations, which ultimately proved settlement negotiations — was valid in the Damages You can view fruitless, the plaintiff moved to amend its New England In-House context of this case.” The defendant contended that the online complaint in June 2011 to add a request at newenglandinhouse.com. The 22-page decision is TG Plastics plaintiff failed to present sufficient evidence for a jury trial. Trading Co., Inc. v. Toray Plastics to allow a jury to conclude with reasonable For editorial, call U.S. District Court Judge John J. (America), Inc. certainty that National Plastics suffered 800-444-5297, Ext. 12192, Wisconsin attorney James Ratzel argued McConnell Jr. granted the motion for leave more than $2 million in damages as a result and for advertising, call the appeal on behalf of the plaintiff. Sanford to amend over the defendant’s objection. of the defendant’s breach of the settlement 800-444-5297, Ext. 12211. I. Weisburst of New York represented the The jury found the defendant liable for agreement. defendant. breach of the settlement agreement and awarded the plaintiff $2,020,428.95 in “In order to settle pending claims against New England In-House is published bi-monthly by The Dolan Company. Settlement negotiations damages. each other, Toray and National Plastics agreed to do business together over a In 2007, a settlement agreement POSTMASTER: seventeen-year period pursuant to the was reached between defendant Toray Jury demand Electronic Service Requested. Plastics (America), Inc. of Rhode Island, The 1st Circuit found that it was not an terms of a Settlement Agreement honed a manufacturer of plastic film products, abuse of discretion for McConnell to allow through extensive negotiation,” Lynch Send address changes to New and plaintiff TG Plastics Trading Co., the plaintiff to amend its complaint to add said. “[A] jury could reasonably conclude, England In-House, 10 Milk St. 10th Inc., doing business as National Plastics, a jury demand. based on evidence of the parties’ intent, that Floor, Boston, MA 02108-4649. a Colorado-based broker of plastic film “The district court found, and Toray does twelve percent of Toray’s revenues from its Copyright 2014 The Dolan Company. products. not contest, that the issues in this case were breaching the Settlement Agreement was a Material published in New England As part of the agreement, the defendant suited to jury determination,” Lynch said. reasonable estimate of National Plastics’ loss In-House is compiled at substantial agreed to sell certain materials exclusively “The allowance of the motion to amend did as a result of Toray’s refusal to do business expense and is for the sole and through National Plastics and to pay the not disrupt the schedule of the litigation; at according to the agreement’s terms. No more exclusive use of purchasers and plaintiff a 12 percent commission on all the time of the amendment, discovery was is required under Rhode Island law.” subscribers. The material may not be republished, resold, recorded, or used in any manner, in whole or in part, without the publisher’s explicit consent. Any infringement will be Trade-secret plaintiff allowed limited tech audit subject to legal redress. Continued from page 3 According to the plaintiff, Hernandez would suffer irreparable harm. employment plans at that time. failed to comply. Specifically, the plaintiff Nonetheless, Curran said, “there is no Following Hernandez’s last day of work, alleged, she deleted incriminating emails reason at this time to permit a wholesale in her Yahoo! account, tampered with a InVivo’s IT department examined her intrusion into PixarBio’s computer and flash drive believed to contain proprietary iPad in One laptop and allegedly discovered that she memory processes.” information, failed to turn over a personal had transferred a significant volume of Instead, he ordered the computers and laptop (she claimed she threw it out), and proprietary research materials on InVivo’s devices of a particular PixarBio employee failed to turn over a number of other devices. Hour for advances in neurological research to her to whom Hernandez most likely provided She further provided fake passwords for personal Yahoo! webmail account. stolen data to be searched by a forensic her InVivo iPhone, the plaintiff said in its InVivo later learned that PixarBio investigator for each party. complaint. Lawyers allegedly lured Hernandez away with Curran also issued a stern warning that After Hernandez provided no substantive should InVivo discover that Hernandez did, a $10,000 pay raise and stock options. responses in her deposition and failed to indeed, transfer the material in question Ideal for attorneys who want InVivo filed a complaint against her, appear for trial, she was found in contempt. to the designated employee, “the entire to get up to speed quickly, PixarBio and Reynolds, alleging breach of She currently is believed to have left the landscape of equitable relief would change Hernandez’s non-competition agreement jurisdiction. this book gives you the immediately and dramatically.” and misappropriation of trade secrets. In November, InVivo filed an amended essentials so you don’t get The plaintiff also accused Hernandez of complaint requesting that its forensic expert At that point, the judge said, he might — bogged down in technical disclosing the proprietary information to following an evidentiary hearing — grant the be permitted to inspect all PixarBio laptops, jargon and extraneous PixarBio. computers, servers and devices for purloined very relief requested by the plaintiff. On Sept. 20, 2014, Curran issued a information. Meanwhile, Curran noted that attorneys features and apps. preliminary injunction and ordered for PixarBio had repeatedly denied in open Hernandez to preserve any proprietary ‘Reasonable middle ground’ court that their client possesses any of the information she had, to turn over all Addressing the plaintiff’s request, plaintiff’s proprietary information. electronic and storage devices, to provide Curran called Hernandez’s conduct “deeply “If this representation proves untrue, a Go to access to all personal email accounts for troubling” and stated that if, “as the court hearing on sanctions against all offending forensic examination, and to testify at an suspects,” Hernandez did turn over trade parties should be scheduled forthwith,” he books.lawyersweekly.com Oct. 7 deposition. secrets to PixarBio, the plaintiff undoubtedly warned. FEBRUARY 2015 | New England IN-HOUSE | page 5 Insurance co. can’t force ‘examination under oath’ Providers in PIP case so as to extend the duty to provide an EUO Stephen L. Holstrom, who represented the beyond insureds and claimants.” not required to submit plaintiff providers, said the decision sends a Francis A. Gaimari of Fireman & Associates in Needham also represents medical providers By Eric T. Berkman strong message to the insurance industry that in PIP suits and said whenever one of his no matter what a policy says, a carrier is still clients is faced with an insurance company An insurance carrier that was sued under demanding an EUO, he tells the client to the Massachusetts personal injury protection governed by the PIP statute. ignore it. statute by physical therapists for refusing “These requests for provider EUOs are bluff, to pay for treatment they had provided to wrote, granting the plaintiff providers’ motion the provider isn’t cooperating with the tongue-in-cheek requests that no lawyer, injured policyholders could not force the for partial summary judgment. insurer and pay no money whatsoever to the not even the one requesting the EUO, could providers to submit to examinations under “Even if the policy could reasonably be provider,” he said. possibly take seriously,” Gaimari said. oath in conjunction with their claims, a state interpreted as the defendant suggests, such Hadley’s ruling gives medical providers Gaimari said he has had several providers District Court judge has ruled. an interpretation conflicts with the purpose reassurance that they can treat auto accident refuse to show up to EUOs and has never seen The defendant insurer noted that the and the language of the governing statute victims without fear of having to deal with a judge deny a PIP claim on those grounds. Massachusetts Standard Automobile Policy that specifies the parties’ rights and remedies such a situation, Holstrom said. “I would literally love to have a case where states that “anyone covered under [a] regarding PIP claims,” Hadley added. “I suspect that even a nonbinding decision an insurer refused to pay bills because a policy” and “any person seeking payment” The three-page decision is VIP Physical may sway insurers from insisting on provider medical provider refused to attend an EUO,” must cooperate with the insurer, including Therapy, Inc. v. Government Employees EUOs, especially where the decision [in VIP he said. “It has bad faith, Chapter 93A and submitting to an examination under oath at a Insurance Company. Physical Therapy] is so clear that the practice treble damages written all over it. Maybe one place designated by the insurer. Accordingly, is in contravention of the language of the will come along, though doubtful.” the defendant argued, the providers’ refusal ‘Recent trend’ statute,” he said. Shahan J. Kapitanyan of Smith & Brink in to submit to examinations under oath Stephen L. Holstrom of Alekman DiTusa Robert E. Mazow of Law Office of PIP Braintree represented the insurer. He could constituted non-cooperation that justified in Springfield represented the plaintiff Collect in Salem represents medical providers not be reached for comment prior to deadline. its refusal to pay. providers. While acknowledging that the in PIP cases. While not involved in VIP Judge William P. Hadley disagreed, decision is not binding on any court, he said Physical Therapy, he called the ruling an EUO demand pointing out that the language in the it sends a strong message to the insurance “important reminder” to auto insurers that Lilia P. Girchenko, Lilia A. Girchenko and standard auto policy conflicts with language industry that no matter what a policy says, a the primary purpose of the PIP statute is to Valentina Akimova were injured in a car in the PIP statute itself, under which the carrier is still governed by the PIP statute. provide those injured in car accidents with accident on Sept. 4, 2012. non-cooperation defense is limited to non- That is particularly important in light a quick and efficient method for payment of All three were covered by an insurance cooperation by an “injured party.” of a recent trend of insurers insisting that related medical bills. policy issued by defendant Government Pursuant to the PIP statute, G.L.c. 90, §34M, providers attend examinations under oath — “Requiring that medical providers jump Employee Insurance Co. and sought “an unpaid medical provider is deemed a or EUOs — like the ones demanded in VIP through hoops and attend what are essentially treatment for their injuries from plaintiff VIP party to a contract only insofar as is necessary Physical Therapy, usually at a time and place depositions without boundaries puts an unfair Physical Therapy. to allow it to pursue a statutorily authorized selected by the insurer, at which the provider burden on providers and their patients and A physician and three physical therapists breach of contract action against an insurer may be forced to provide hours’ worth of stretches the PIP statute beyond the breaking at VIP provided what they claimed was when payment of PIP benefits for reasonable testimony about a medical bill, Holstrom said. point,” Mazow said. “Moreover, the PIP reasonable and necessary treatment to the and necessary services is not made,” Hadley “If the provider refuses, they assert that statute simply cannot be logically construed Continued on page 9

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#15-2431 M2 page 6 | New England IN-HOUSE | FEBRUARY 2015 Local foreclosure ordinances preempted by state law Banks celebrate decision suited to answer questions of Massachusetts law central to resolving the matter. Specifically, the 1st Circuit asked the By Brandon Gee SJC whether Springfield’s ordinances were A pair of local ordinances approved by a preempted by state law and whether the Massachusetts city to combat urban blight foreclosure ordinance’s provision for a caused by foreclosures are preempted by registration fee constituted an unlawful tax state law, the Supreme Judicial Court has or legal fee. ruled. “[T]he outcome of this case has the The defendant city of Springfield argued potential to impact thousands of outstanding that the Home Rule Amendment gave it the and future mortgages in Springfield,” Chief right to regulate issues of public safety created Judge Sandra L. Lynch noted, adding that by the wave of foreclosures precipitated by other municipalities have followed or are the 2008 financial crisis. considering following Springfield’s example But in a unanimous decision, the SJC by enacting their own foreclosure-related mostly sided with the plaintiffs, six local ordinances. banks that took issue with the two measures: a “mediation ordinance” that required ‘Sharp conflict’? mandatory mediation between mortgagors The SJC noted that the Home Rule and mortgagees, and a “foreclosure Amendment allows municipalities to enjoy ordinance” that required the owners of vacant “considerable latitude” to “exercise any power or function which the general court buildings or those undergoing foreclosure to to deal with a different ordinance in every “It’s always useful to be able to predict in has power to confer upon it, which is not register with the city, pay a fee, post a surety municipality across the commonwealth.” the business world,” said Mitchell, who was inconsistent with the constitution or laws bond and meet minimum requirements of Springfield Associate City Solicitor Thomas not involved in the case. “The last thing that enacted by the general court.” maintenance. D. Moore declined to comment. commercial entities like is uncertainty.” The plaintiff banks claimed Springfield’s The court found that mortgage foreclosure But Brandon H. Moss of Murphy, Hesse, While the banks prevailed in the case, other ordinances were inconsistent with several regulation traditionally has been a matter of Toomey & Lehane in Quincy said the ruling private entities that oppose local ordinances state laws, while the city argued no conflict state, not local, concern. is unfortunate in that it limits the ability of and believe them to be preempted by state existed. “The mediation ordinance alters what a municipality to respond to the day-to-day law may not have the appetite for a years-long The SJC determined that the question the Legislature determined, as a matter of issues presented by a dilapidated housing court battle to prove it, Mitchell said. turned on whether there was a “sharp public policy, to be the just medium between inventory that taxes municipal resources. Whether Easthampton Savings Bank conflict” between the ordinances and state the parties involved in the contemplation “It was our view that it was certainly within strictly pertains to foreclosure regulation of mortgage foreclosure,” Justice Francis X. law. the confines of the Home Rule Amendment or signals a broader, landscape-shifting Spina wrote on behalf of the court. “By so “Legislative intent to preclude local to the Massachusetts Constitution that curtailment of municipalities’ legislative doing, the ordinance necessarily ‘frustrate[s] action can be express or inferred,” did confer some broad authority on powers was a subject of discussion at the the purpose’ of the foreclosure statute. The Spina wrote. “When express, the task of municipalities to confront issues within Municipal Lawyers Association’s most recent Legislature’s amendment of the foreclosure determining the inconsistency between a their borders,” said Moss, who co-authored executive board meeting, according to the statute in 2012 provides further support for local enactment and a State law is relatively the Massachusetts Municipal Lawyers group’s executive director, James B. Lampke. our conclusion that the foreclosure process easy. More difficult are the instances when Association’s amicus brief in the case. “It was Advocates for foreclosure reform, is wholly a matter of State regulation absent the Legislature is silent on the issue of local a creative solution to a problem that lots of meanwhile, have shifted their focus to an expression of a clear intent to allow local regulation and a party challenging a local municipalities had.” Beacon Hill. regulation.” enactment asserts that ‘a legislative intent For municipalities and their lawyers, the “Mediation has been successful everywhere The court similarly ruled that most to bar such local action should be inferred case is a reminder that local legislative efforts it has been tried,” said Lee D. Goldstein of the provisions of Springfield’s foreclosure in all the circumstances.’” can be thwarted even in areas in which state Harvard Legal Aid Bureau. “There is going ordinance were preempted by the state Springfield’s ordinances fell into the latter, law does not explicitly prohibit municipal to be proposed legislation this term of the sanitary code and the Massachusetts Oil and “more difficult” category, the court found. regulation. Legislature, which will mandate a mediation Hazardous Material Release Prevention Act, On the matter of Springfield’s mediation “Municipalities do enjoy great latitude, and regime and will require lenders to meet face- or OHMRPA. The ordinance’s provision ordinance, the SJC observed that the state there wasn’t an express statement that said to-face with homeowners with an incentive imposing a charge on foreclosing lenders to foreclosure statute “gives a mortgagor municipalities are not permitted to regulate to settle.” register the property with the city, however, of residential and real property in the this area,” Sapirstein said. “This issue was a Sapirstein also represents several banks was ruled to be a lawful fee, rather than an Commonwealth 150 days to cure a payment field preemption issue. In other words, what challenging Worcester’s and Lynn’s new illegal tax as the banks had argued. default before foreclosure proceedings may the SJC found was, where the foreclosure foreclosure ordinances in U.S. District The decision, provided in response to be commenced. A foreclosing mortgagee statutes in Massachusetts are pretty Court. Believing that the SJC’s ruling in questions certified to the SJC by the 1st U.S. may reduce the 150-day period to ninety days comprehensive and have been amended Easthampton Savings Bank effectively Circuit Court of Appeals, will impact the by certifying it has engaged ‘in a good faith recently, they preempted the ordinances. invalidates the ordinances, which are similar efforts of other Massachusetts municipalities effort to negotiate a commercially reasonable There was an intent to occupy the field.” to Springfield’s, Sapirstein said she plans to to combat urban blight. alternative to foreclosure.’” Francis J. Nolan of Harmon Law Offices renew a motion for preliminary injunction As the real estate bar and lenders are The court ruled that Springfield’s mediation in Newton co-authored the Real Estate Bar that was previously denied while the SJC case celebrating a decision they hope will prevent ordinance “reveals similar attempts to give Association’s amicus brief in the case. In light was pending. them from facing a patchwork of foreclosure mortgagees an incentive to negotiate with the of the decision, he said municipalities should Worcester Assistant City Solicitor Ann S. laws and regulations statewide, local mortgagors before proceeding to foreclose.” carefully consider whether existing state laws Refolo conceded that the city’s mediation and governments are exploring other options, While the city argued that the mediation already cover the same or similar ground surety bond requirements are preempted, such as statewide legislation that would give ordinance complemented rather than before passing local ordinances. but said Worcester hopes to keep other them tools similar to those Springfield sought conflicted with the foreclosure statute In Easthampton Savings Bank, for provisions intact in a revised ordinance. to create for itself. because a mortgagee could comply with both example, the SJC noted that the state “We recognize that the city of Springfield laws, Spina said the SJC disagreed. foreclosure statute already provides an Bouncing around has attempted to address the serious problem “The Legislature’s decision to utilize the incentive for foreclosing lenders to negotiate Local banks challenged Springfield’s of urban blight within its borders through proverbial ‘carrot’ of a shorter right-to-cure “a commercially reasonable alternative mediation and foreclosure ordinances in these ordinances,” Spina wrote. “Although period trumps the city’s choice of the ‘stick’ to foreclosure” that trumps Springfield’s state court shortly after they were passed in we conclude that the city may not achieve its of a daily fine. Furthermore, the ordinance attempted mediation requirement. Similarly, 2011. The city removed the case to federal goal by ordinance as it has here attempted, by its own terms does not allow a mortgagee the court ruled that Springfield’s foreclosure court, where, in 2012, U.S. District Court a solution may be provided through the to proceed with foreclosure before obtaining ordinance treaded the same ground as the Judge Michael A. Ponsor allowed the city’s Legislature.” a certificate of good faith mediation, a direct OHMRPA and state sanitary code. motion for summary judgment. The 28-page decision is Easthampton impingement on the process of foreclosure.” “The decision certainly encourages “Widespread mortgage foreclosures Savings Bank, et al. v. City of Springfield. The SJC also cited the recent 2012 vigorous enforcement of existing laws and undisputedly are an issue of serious public amendment of the state foreclosure statute ‘Occupy the field’ policing of properties,” Moss said. “It just concern to municipalities like Springfield,” as further evidence that “the foreclosure takes away a blanket solution to it.” Springfield’s Tani E. Sapirstein represented Ponsor wrote. “The modest effort made process is wholly a matter of State regulation the plaintiff banks and applauded the SJC’s Real estate lawyer Beth H. Mitchell of by the city to soften this crisis through the absent an expression of a clear intent to ruling. Boston’s Nutter, McClennen & Fish said she promulgation of the two ordinances violates allow local regulation.” “Foreclosure is well regulated and there are wishes the SJC had provided clearer guidance no Constitutional provision or state statute.” As for Springfield’s foreclosure ordinance, many state laws that deal with it,” she said. on when local rules will be preempted or The banks appealed to the 1st Circuit, “It would be difficult for all parties involved upheld. which determined that the SJC was better Continued on page 11 FEBRUARY 2015 | New England IN-HOUSE | page 7 Co. waived arbitration with its ‘litigation conduct’ Continued from page 1 dismiss in Superior Court.” binding arbitration until after it learned that Matthew J. Williams of Kennebunk, Maine, said a good By filing that motion, the judge said, its motion to dismiss was not completely rule of thumb is that waiver has probably occurred when Arctic Sand made “a deliberate choice to successful. Under the circumstances of the litigation has progressed to a point that it would not have seek ‘an immediate and total victory in the case, the Court finds that Arctic Sand has parties’ dispute’ in Superior Court, and ‘to waived arbitration by its litigation conduct.” progressed in arbitration. He said the litigation of a motion see how the case was going in … court before The 16-page decision isShalaby v. Arctic to dismiss is a perfect example. deciding whether it would be better off there Sand Technologies Inc., et al. or in arbitration.’ … Arctic Sand was happy to litigate Shalaby’s claims in the Superior Court ‘Like a disingenuous diner’ so long as it thought it could obtain a quick Plaintiff’s counsel Ellen J. Zucker of Burns is invoked to address the merits of a dispute. The defendants later succeeded in getting all judgment in its favor on the merits.” & Levinson in Boston said the decision offers “You will not have much luck in compelling the counts against Davison and Major thrown Salinger criticized Arctic Sand for wanting a straightforward lesson. arbitration if you engage the machinery of the out, but four claims against Artic Sand itself to play “heads I win, tails you lose” and for “The decision should remind litigators court in other respects, then seek to raise the survived a motion to dismiss. invoking the “litigation machinery” of the that if a party believes a dispute is subject to issue,” she said. “Parties run a real risk if they Arctic Sand then moved to compel binding court with an “extensive and exhaustive” arbitration, that argument needs to be made wait and only press the point when things arbitration. Shalaby, in turn, filed a motion at the start of litigation,” she said. motion to dismiss. do not turn out as they might have hoped in to amend her complaint to add claims of Salinger also noted that Artic Sand filed Matthew J. Iverson of DLA Piper’s Boston court.” discrimination and retaliation. a counterclaim and “invoked the court’s office represented the defendants. Iverson But questions of whether there has been “While she was willing to wait on filing her jurisdiction by asking it to resolve a discovery did not respond to interview requests. waiver of arbitration by litigation conduct claims of discrimination and retaliation in dispute.” But Paul A. Finn, a Brockton mediator will be decided on a case-by-case basis, and hope that matters could get resolved amicably He went on to say that “Arctic Sand had and arbitrator, said Salinger’s decision is Kugell said preserving the right to arbitrate and in the best interests of all parties, she no legitimate reason for asking the Superior troubling. may simply come down to not crossing a point determined to timely file her claims of Court to decide the legal merits of Dr. Shalaby’s “If there’s a legal basis for the case to be at which a judge thinks he has wasted his time discrimination and retaliation and to request claims before moving to compel arbitration. dismissed [and] I’m advised by my attorneys if he allows a dispute to switch to arbitration. prompt removal of her Charge so that the there’s a way to get the case thrown out Matthew J. Williams of Kennebunk, Maine, motion to compel arbitration could be weighed If Arctic Sand had wished, it could have first without spending money on arbitration, I’m said a good rule of thumb is that waiver by this court fairly, with an understanding — moved to compel arbitration and then, if going to take that shot,” he said. “If I’m not has probably occurred when litigation has one the Defendants surely had — that this successful, filed a motion to dismiss with the successful, why can I not then impose the progressed to a point that it would not have litigation involved concerns that the conduct arbitrator.” terms of the contract?” progressed in arbitration. He said the litigation at issue was animated by both discrimination Concluding that Arctic Sand’s delay was The issue by no means appears clear-cut. of a motion to dismiss is a perfect example. and retaliation,” the motion to amend states. “deliberate and tactical” and forced the In a 2013 decision, for example, U.S. District “Once you file a motion to dismiss and plaintiff to incur unnecessary expense and Court Judge Nathaniel M. Gorton ruled in you force the other side to respond … you’ve ‘Heads I win, tails you lose’ delay, Salinger also granted Shalaby leave Bruck v. Morgan Stanley Smith Barney now created some litigation activities that Salinger found Arctic Sand deliberately to amend her complaint to add claims of LLC, et al. that “[d]efendants’ limited most certainly wouldn’t have occurred in delayed moving to compel arbitration discrimination and retaliation against all involvement in this case is not sufficient to the arbitration context,” said Williams, who “because it first wanted to press its motion to three defendants. find waiver of the right to arbitrate.” As in recently prevailed in a case at the 1st U.S. Shalaby, the defendants in Bruck already had Circuit Court of Appeals in which the court filed a motion to dismiss when they sought to found the plaintiff could not be granted a stay Professional Announcements compel arbitration. to pursue arbitration eight months after filing Contact Scott Ziegler at [email protected] or at 617-218-8211 “[I]t could hardly be said that the ‘litigation suit. machinery has been substantially invoked’ nor Boston mediator and arbitrator Sarah that the parties were ‘well into preparation of E. Worley suggested a handful of ways a lawsuit by the time an intention to arbitrate defendants can try to avoid waiving their was communicated,’” Gorton wrote. right to arbitrate by litigation conduct. She C. Max Perlman, an employment lawyer at said they should assert their right to arbitrate Boston’s Hirsch, Roberts, Weinstein, said it in answers and affirmative defenses; move to is common for a party to try to have claims stay the proceedings and compel arbitration in dismissed prior to moving for arbitration and a timely manner; and notify opposing parties that, given the short amount of time a party of arbitration agreements and put them on has to answer a complaint, it is possible the notice that the defense’s litigation conduct defendants in Shalaby were still deciding should not be considered a waiver. how to proceed when they filed their motion to dismiss. Moves and countermoves “A presumption that cases are arbitrable Artic Sand, cofounded by Shalaby in 2011 when parties agree will often overcome as a spinoff from the Massachusetts Institute participating in the litigation process to some of Technology, develops power conversion extent,” he said. chips for electronic devices. The company Perlman said Salinger’s decision, however, raised $9.6 million in financing in 2012, when “indicates a reluctance to allow a party two a board of directors was appointed to oversee bites at the same apple,” and suggests that if a the company. defendant is inclined to arbitrate, a motion to Shalaby, who retained 18 percent of the compel arbitration should be the party’s first company’s shares, alleges in her complaint filing. that she began to experience sexism within Jaclyn L. Kugell, chairwoman of the the company at that time. She claims that employment law firm Morgan, Brown & Joy discrimination toward her escalated after she in Boston, said the defendants could have tried complained about being treated more harshly to file a single motion that sought the case’s than a male co-founder. dismissal or, in the alternative, to compel Shalaby was replaced as CEO in October arbitration, but that Salinger may not have 2013 and fired the following March. viewed that approach any more favorably than She sued Arctic Sand, replacement CEO the one chosen. Gary Davison and board Chairman John While the judge appeared to view the Major in April in a nine-count complaint that defendants’ tactics as abusive forum shopping, principally concerned whether Arctic Sand Kugell said she sees nothing nefarious in their had terminated her for cause and thus had a litigation conduct. right to repurchase her stock. “We all make strategy calls that sometimes The parties litigated Shalaby’s request for a don’t work out,” she said. preliminary injunction regarding the contents of a computer, cellphone and external hard Line in the sand drive. So what is the “point of no return” Salinger considered the motion “a discovery after which a party has waived its right to dispute disguised as a motion for a preliminary arbitration? Zucker said it is reasonable to injunction” and disposed of it with a protective draw a line once the jurisdiction of the court order. page 8 | New England IN-HOUSE | FEBRUARY 2015 SPECIAL FEATURE Fiduciary duties in Delaware: complexity trumps clarity

By Stephen M. Honig obligations by Yung, breach of contract by the managing companies, and breach of The decision of the Delaware Court of Chancery last fall covenants of good faith and fair dealing. The court expounded over six entertaining in In re: Nine Systems Corp. looks at the nature of director pages the deplorable condition of the casinos fiduciary duty from another and troublesome vantage point under Yung’s stewardship, and then cut the — that of directors representing venture capital investors legal baby in half. who sit on boards of portfolio companies. End-running fiduciary breaches Applying Delaware law, the court dismissed Delaware contract law, and finding a breach to further favor the venture capital investors. all breach of fiduciary duty claims because of contract and resulting damage, the judge After the recap, the company subsequently Yung owed all duties to himself personally, as let stand the breach of contract claims. failed to hold its annual stockholders’ meeting, Delaware has fully articulated case law ultimate equity owner. Noting that directors It seems that insects in an alcoholic gave poor communication to stockholders, defining fiduciary duties owed by owners of wholly owned subsidiaries are obligated beverage constituted breach of the and did not provide complete information and directors, and a rich tapestry of judicial “only to manage the affairs of the subsidiary management contract. about the revised capital structure. decisions raising almost every imaginable in the best interest of the parent and its Further holding that in all contracts there Emphasizing that the board’s price factual scenario. shareholders,” the judge confirmed that is an implied covenant “of good faith and determination was hampered by the Two recent decisions demonstrate the subsidiary directors must act with loyalty to fair dealing,” and noting that the litigation increasing complexity of the Delaware law. the parent “even if the directors’ actions make trustee alleged that the management unfairness of the process and by the absence the subsidiary less valuable.” company “unreasonably benefited Yung’s of reliable financial projections, and noting Bugs in the ice cubes These subsidiaries, so long as solvent, hotel properties to the detriment of the casino the failure to engage an independent financial We start with William J. Yung III, a owe duties to the corporate parent and its Debtors,” the judge similarly let stand a claim advisor, the court found a breach of director successful hotelier who started modestly ultimate owners. Subsidiary creditors cannot for breach of implied contractual covenants fiduciary duty. in 1972 and in 18 years amassed a portfolio complain that management of a subsidiary of good faith. As it turned out, the recapitalization in fact with more than 70 hotels. In 2006, he paid breached a fiduciary duty to the subsidiary The judge’s reach for remedies from succeeded, facilitating certain acquisitions $2.1 billion “in cash” to acquire five casino entity. Owners of a solvent subsidiary may unexpected directions is a cautionary tale that thereafter saved the company, and led a properties, including the Tropicana in mismanage, or may withdraw assets (up to for practitioners, when advising corporate few years thereafter to a very successful exit. Atlantic City and Las Vegas. but not past the point of insolvency) through owners that they can do whatever they wish Yung’s magic touch at management did The court sardonically noted, however, that dividends or otherwise. The fact that any with their subsidiaries so long as the line of inside purchasers of the new preferred stock, not extend to casinos. Yung had publicly mismanagement actions caused insolvency insolvency has not been crossed. created by the recapitalization, received acknowledged that “we have limited does not matter. almost 2,000 percent return on their money. experience operating a full scale casino To prove insolvency, such that the duty of Investors on boards resort.” In May 2008, his casino empire subsidiary directors would shift to creditors, The decision of the Delaware Court of Space in this column does not permit a ended up in Chapter 11 proceedings in the debtor must show either that its liabilities Chancery last fall in In re: Nine Systems full exposition, which is aptly summarized Delaware Bankruptcy Court. exceeded its assets with no reasonable Corp. looks at the nature of director fiduciary by Sullivan and Cromwell in “Deal Lawyers” At the time, Yung was the director, chief prospect that the business could successfully duty from another and troublesome vantage (November/December 2014 issue, at 7 executive and 100 percent equity owner of continue, or a failure to meet obligations as point — that of directors representing through 11). However, the Nine Systems all the operating casinos and of its ultimate they fell due. venture capital investors who sit on boards lesson can be easily articulated: In a self- 100 percent parent, Tropicana Casino and of portfolio companies. interested transaction that invokes the “entire Resorts, Inc. Skinning the cat Directors representing invested capital fairness standard of review,” even when the Bankruptcy Court Judge Kevin J. Carey’s The ruling does reflect sympathy for the have always had a problem in fulfilling minority stock is without any value at the Nov. 25, 2014, opinion documents Yung’s plaintiffs. Proving that there is more than their fiduciary duty. They are clearly seeming mismanagement of cost-cutting. start of the transaction and turns out to have one way to skin the cat, the judge refused to representatives of particular shareholders, value afterward, and even when the pricing Cups and drinks contained insects, bedding dismiss two counts of the complaint against yet there is no exception in the scope of was infested with bed bugs and roaches, of the transaction proves fair, sometimes the corporate parent. director fiduciary duty that absolves such toilets overflowed, used coffee stirrers the process of board deliberation, when that Written agreements between the corporate a director from fulfilling obligations to all festooned hotel rooms, and even the slot parent and the operating subsidiaries shareholders, including the minority (with deliberation is by a board whose majority is machines were “dirty.” required provision of management services, whose economic interests the venture capital interested venture capitalists, can fail to meet The court created a “litigation trust” to including the devotion of adequate time to is often adverse). the entire fairness standard. pursue unsecured creditors’ rights, and the provide services “as are necessary to fulfill the In a corporate transaction between a The Nine Systems opinion makes it clear trust sued Yung and his holding companies. requirements of [debtor subsidiaries].” company and entities affiliated with a majority that, notwithstanding Trados, fiduciary Trust claims included breach of fiduciary The litigation trustees alleged breach of of the board, the standard of review of the boards (including representatives of invested Stephen Honig practices at Duane those agreements, bringing financial ruin transaction under Delaware law requires a capital) need to address not only price Morris in Boston. on the subsidiary casinos. Applying simple finding of “entire fairness” to shareholders. fairness but also robust process in order to (Interested directors do not enjoy protections meet fiduciary obligations. afforded under the business judgment rule.) As for the minority shareholders, they The 2013 Court of Chancery decision in received no monetary damages, such damages the In re: Trados case had given hope to being deemed speculative. In any event, they venture capital directors. Vice Chancellor had their chestnuts pulled out of the fire by J. Travis Laster had held in Trados that, although entire fairness required both a fair the acquisition, which resulted from the dealing process and fair pricing, there was no recapitalization itself. The shareholders were fiduciary breach even absent robust process granted only their attorneys’ fees. in cases in which the minority stock prior to Counsel can gain a better understanding of the transaction had no value and the pricing the Delaware fiduciary standards applicable of the ultimate transaction actually was fair. to all directors by reference to the Dec. 8, Nine Systems reaches an opposite 2014, blog at http://blogs.law.harvard.edu/ conclusion, based on a close analysis of the corpgov/2014/12/08/determining-the- particular facts of that case. likely-standard-of-review-in-delaware-ma- There is no doubt that the actions of the transactions/. board majority in Nine Systems, representing investors whose securities were favored in a Conclusion recapitalization, were facially reprehensible: Defining fiduciary duty seems to have actively excluding from board deliberation become a full-time occupation for lawyers in the one independent director, accepting what was admittedly a “back of the envelope” Delaware. Corporate counsel is well advised valuation offered by one of the VC investors, to consider each situation holistically not disclosing a side deal that allowed certain and, in the absence of useful bright lines, but not all the investors to opt into the to proceed in conservative fashion. Then, favorable deal, and changing the deal after it perhaps, just wait for the lawsuit anyway. was voted and before it was closed in order FEBRUARY 2015 | New England IN-HOUSE | page 9 SPECIAL FEATURE The Parental Leave Act: what employers need to know continues to say that it does not include an employer shall only be entitled to 8 weeks of position; provided, however, that the parental By David C. Henderson employer with five or fewer employees, it also parental leave in aggregate for the birth or leave shall not be included, when applicable, says now that it “include[s] an employer of adoption of the same child.” in the computation of the benefits, rights domestic workers including those covered 5. There will be no substantial change and advantages; and provided, further, that under [the newly enacted — but not yet fully in the employee’s obligation to provide the employer need not provide for the cost effective — Domestic Worker Bill of Rights “notice of leave and intention to return.” of any benefits, plans, or programs during Act, G.L.c. 149, §190].” Under the MPLA, an employee desiring the parental leave unless such employer so There thus is an issue about which of the parental leave still will be required in general provides for all employees who are on leave two FEPA provisions will be dominant. Two to give at least two weeks’ notice to the of absence.” state agencies have been directed by the employer of the anticipated date of departure 8. An employer will need to address Domestic Worker Bill of Rights Act to issue and intention to return to work. (and document) in advance any special clarifying outreach materials and regulations The MPLA also will provide a loophole, conditions under which more than eight On his last day in office, Massachusetts no later than April 1. One of the points that however. An employee will be allowed to weeks of parental leave will be allowed. Gov. Deval L. Patrick signed into law Senate should be clarified is whether the FEPA and provide less than two weeks of notice as The MPLA will add the following rule Bill 865, setting in motion a process by which MPLA definitions of “employer” will extend long as he or she provides notice “as soon concerning whether the employee will the Massachusetts Parental Leave Act — or MPLA rights to domestic workers when the as practicable [and] the delay is for reasons continue to have MPLA rights when more MPLA — will replace the Massachusetts employer has five or fewer employees. beyond the individual’s control.” Maternity Leave Act — or MMLA — 2. The new parental leave rights and 6. There will be no essential change than eight weeks of parental leave is allowed: effective April 7. responsibilities will be gender-neutral. in the employer’s “job restoration” “If the employer agrees to provide parental Most significantly, the new MPLA will The MMLA purports to limit its parental responsibility. leave for longer than 8 weeks, the employer expand the categories of workers entitled leave to “female employees.” The MPLA will As is the case under the MMLA, the MPLA shall not deny the employee the rights under to parental leave. It also will modify certain not mention gender. Instead, the MPLA will will require generally that, after the leave, this section unless the employer clearly notification provisions to the benefit of convey its parental leave rights simply to the employee be restored to the “previous, informs the employee in writing prior to the employees and include one new protection “employees.” or a similar, position with the same status, commencement of the parental leave, and for employers, while generally leaving 3. Only certain employees will qualify pay, length of service credit and seniority, prior to any subsequent extension of that most of the employee rights and employer for leave under the MPLA. wherever applicable, as of the date of the leave, that taking longer than 8 weeks of leave obligations unchanged from the MMLA. As currently is the case under the MMLA, leave.” will result in the denial of reinstatement or Massachusetts employers who are going to the only employees who will be eligible for And like the MMLA, the MPLA also loss of other rights and benefits.” be covered by the new parental leave law in parental leave under the MPLA will be those will acknowledge as follows exceptional 9. An employer’s failure to provide April should start preparing for it now. The who have “completed the initial probationary circumstances in which the employee will not parental leave rights under the MPLA following analysis provides 10 key points for period set by the terms of employment, not have a right to return to work: will be an unlawful employment practice employers to consider. to exceed 3 months, or, if there is no such “The employer shall not be required to within the meaning of the FEPA. 1. The new parental leave rights under probationary period, [have] been employed restore an employee on parental leave to Section 2 of the enactment that created the MPLA, like the old maternity leave by the same employer for at least 3 consecutive the previous or a similar position if other the MPLA will amend the FEPA definition rights under the MMLA, generally will months as a full-time employee.” employees of equal length of service credit of “unlawful practice” so that, effective April apply only when the employer has six or 4. With one key employer-friendly and status in the same or similar position 7, it will cover failing to provide parental more employees. qualification, the eight-week entitlement have been laid off due to economic conditions leave rights. As a result, the Massachusetts The MPLA will follow the precedent to unpaid parental leave will not change or other changes in operating conditions Commission Against Discrimination will have set by the MMLA and take its definition under the MPLA. affecting employment during the parental jurisdiction whenever an employer refuses of “employer” from the Fair Employment As currently is the case under the MMLA, leave; provided, however, that the employee to restore an employee to employment after the basic leave entitlement under the MPLA on parental leave shall retain any preferential Practices Act, G.L.c. 151B, §1(5). parental leave or otherwise fails to comply will be for eight weeks of unpaid leave. An consideration for another position to which The FEPA definition states that it does with MPLA obligations. eligible employee will be able to use such leave the employee may be entitled as of the date not include certain social or fraternal 10. An expanded “posting” re- “for ... giving birth or for the placement of a of the leave.” organizations or “any employer with fewer quirement in the MPLA expressly than six persons in his employ.” child under the age of 18, or under the age of 23 7. There will be no essential change in if the child is mentally or physically disabled, the employer’s obligations as they relate mentions posting related policies. As a result, the new parental leave rights, like Under the MMLA, an employer is required the old maternity leave rights, will be limited, for adoption with the employee adopting or to employee benefits during parental merely to post “a notice of this provision ... at least in general, to situations in which the intending to adopt or for the placement of a leave. in every establishment in which females are employer has six or more employees. child with an employee pursuant to a court In fashion similar to the MMLA, the MPLA employed.” The MMLA says nothing about The FEPA definition of “employer” recently order.” will provide as follows: posting a policy. was amended, however. And even though it But under the MPLA, there will not be a “The parental leave shall not affect the separate eight-week entitlement for each employee’s right to receive vacation time, sick The MPLA, however, provides that David C. Henderson is a partner in parent when they give birth to, adopt or place leave, bonuses, advancement, seniority, length “every employer shall post and keep posted the litigation department of Nutter, a child, if both of them work for the same of service credit, benefits, plans or programs in a conspicuous place or places upon its McClennen & Fish in Boston and a employer. for which the employee was eligible at the date premises a notice describing [the MPLA] member of the firm’s labor, employment The MPLA, unlike the MMLA, explicitly of the leave, and any other advantages or rights and the employer’s policies related to [the and benefits practice group. will provide that “any 2 employees of the same of employment incidental to the employment MPLA].” Insurance co. can’t force ‘examination under oath’ Continued from page 5 carrier in District Court, alleging violation statute does not state that an “unpaid party” insurer, a medical provider stepped into the of the PIP statute. The insurer asserted a must submit to a physical examination and shoes of the injured insured in every respect. injured parties and charged the insurer a total defense of non-cooperation stemming from it does not provide that non-cooperation by “If this were the case, in theory, it would of $19,490. the providers’ failure to submit to EUOs. VIP an “unpaid party” is a defense to a PIP claim. necessarily follow that an insurer could The insurer refused to pay, citing responded with a motion for partial summary Nonetheless, the judge said, the statute demand that a treating healthcare provider an independent medical examination judgment on grounds that the insurer had no considers an “unpaid party” a party to a submit to a physical examination, and charge performed by a different physical therapist authority under the PIP law to make such contract with the insurer and it can bring an the provider with a failure to cooperate if he and a subsequent examination by a demands. action in contract to recover any amounts refused,” Hadley wrote. physician. According to the insurer, the due. Moreover, he said, “requiring healthcare independent medical examinations showed Conflicting language On the other hand, the judge observed, the providers either to have their employees that VIP’s treatment of the injured parties Addressing VIP’s motion, Hadley noted the standard auto policy provides that not only appear for EUOs at locations selected was excessive, unreasonable and unnecessary conflicting language in the PIP statute and the injured persons, but all unpaid claimants, by insurers, or refuse and litigate the and that the injuries were not established as Massachusetts Standard Automobile Policy. must cooperate with the insurer by sending reasonableness of the insurer’s demand, being causally related to the accident. Under the PIP statute, the judge pointed legal documents on demand, submitting to would undermine the primary goals of no- On May 16, 2013, after having conducted out, an “injured person” must submit to a an EUO at a place designated by an insurer, fault insurance, to provide prompt payment EUOs of the injured parties, the insurer physical examination by a physician when and submitting to an examination by doctors of PIP benefits and reduce litigation.” requested to conduct EUOs of each of the four reasonably required by a PIP insurer while selected by the insurance carrier. Because the insurance company had no providers at VIP who treated the individuals. doing “all things necessary” to enable the Looking at those differences, the judge authority under the PIP law to demand that Plaintiff’s counsel objected to the taking of insurer to determine the amounts due for said, the insurer was interpreting the PIP VIP’s providers submit to such a demand, the EUOs, and the providers never appeared. treatment. statute too broadly in its assertion that by Hadley concluded, partial summary judgment At some point, VIP sued the insurance However, the judge continued, the PIP being deemed a party to a contract with the should enter for the plaintiff. page 10 | New England IN-HOUSE | FEBRUARY 2015 ADA suit denied over employee’s failure to negotiate Continued from page 1 While acknowledging that the employer’s response to the displayed its willingness to cooperate with for defendant-appellee Kohl’s Department Manning, not once but twice, to no effect,” Stores. She worked predictable shifts, which employee’s accommodation request “may well have been ham- Torruella said, adding that the employee’s usually started no earlier than 9 a.m. and handed,” the majority found that the employer’s subsequent refusal to participate in further discussions was not a good-faith effort to participate ended no later than 7 p.m. overtures could not be construed as empty gestures. In January 2010, Kohl’s restructured its in an interactive process. “Indeed, because staffing system nationwide. As a result, Manning chose not to follow up with Carr’s and requested that she reconsider her Manning’s scheduled hours became claim that a reasonable person in Manning’s offer to discuss alternative accommodations, resignation and discuss other potential unpredictable. She worked more “swing position would not have felt compelled to Manning was primarily responsible for the accommodations. Manning responded, shifts” — a night shift followed by an early resign. breakdown in the interactive process.” “Well, you just told me Corporate wouldn’t shift the next day. do anything for me.” Interactive process No constructive discharge In March of that year, Manning informed Manning did not discuss any alternative her immediate supervisor, Michelle Barnes, The interactive process — an informal The EEOC argued that the employee’s accommodations with Carr, but instead that working erratic shifts was aggravating dialogue between the employee and the fears that she would go into ketoacidosis or cleaned out her locker and left the her diabetes and endangering her health. employer in which the two parties discuss slip into a coma were objectively reasonable building. A few days later, on April 2, Store manager Tricia Carr and Barnes the issues affecting the employee and because her doctor told her that continuing Manning contacted the Equal Employment arranged to meet with Manning on March 31 potential reasonable accommodations that to work erratic shifts could cause the serious Opportunity Commission seeking to file a to discuss her concerns. During the meeting, might address those issues — “requires medical complications. discrimination claim. Manning requested “a steady schedule, bilateral cooperation and communication,” “Even assuming, arguendo, that being On April 9, Carr called Manning to [but] not specifically 9:00 to 5:00.” As she Torruella said. “We must emphasize that it concerned about these health issues is request that she rethink her resignation described it, “I was asking for a midday is imperative that both the employer and objectively reasonable, we still find that and consider alternative accommodations shift, what I had before, the hours that I had the employee have a duty to engage in good Manning’s choice to resign was ‘grossly for both part-time and full-time work. before [the departmental restructuring].” faith, and that empty gestures on the part of premature, as it was based entirely on [her] Manning asked Carr about her schedule. Manning also expressed a willingness to the employer will not satisfy the good faith own worst-case-scenario assumption’ Carr informed her that she would need to work on weekends. standard.” that Kohl’s would not provide her with consult with the corporate office about any Carr responded that she had spoken to While acknowledging that the employer’s accommodations,” the majority responded. accommodations. “higher-ups” at the corporate management response to Manning’s accommodation An employee “is obliged not to assume After that phone call, Manning had no level, and that she could not provide request “may well have been ham-handed,” the worst, and not to jump to conclusions further contact with anyone at Kohl’s. a consistently steady 9-to-5 schedule. the majority found that the employer’s too [quickly],” Torruella said. “Here, Because it had not heard from Manning, Manning became upset, told Carr that subsequent overtures could not be construed Manning not only jumped to a conclusion Kohl’s treated her departure as voluntary she had no choice but to quit because she as empty gestures. prematurely, but she also actively and terminated her employment later that would go into ketoacidosis or a coma if she “Here, Kohl’s refused to provide disregarded two opportunities to resolve month. continued working unpredictable hours, Manning’s preferred schedule, but was her issues.” The EEOC brought suit on Manning’s put her store keys on the table, walked out willing to discuss other schedules that would Finding that a reasonable person would behalf. A U.S. District Court judge ruled of Carr’s office and slammed the door. balance Manning’s needs with those of the not have concluded that departing from in favor of the employer, concluding on Concerned, Carr followed Manning into store,” Torruella wrote. “Manning refused her job was her only available choice, the the ADA claim that Manning had failed to the break room, asking what she could to hear what Kohl’s had to offer.” 1st Circuit decided that the EEOC failed to engage in an interactive process in good do to help. During that conversation, The employer “acted in good faith when meet the “reasonable person” element for a faith, and on the constructive discharge Carr attempted to calm Manning down it initiated an interactive process and constructive discharge claim.

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Continued from page 1 Jonathan D. Rosenfeld of WilmerHale, who that Ameen had produced no facts that would support the theory. “[The plaintiff] has the burden of proving represented the defendant, said the decision that [the defendant’s] stated reason for his Ameen appealed. termination was a pretext … and absent “correctly reinforces that an employee is not retaliatory animus, there can be no pretext,” insulated from adverse action simply by engaging Insufficient showing The plaintiff argued before the 1st Circuit Judge O. Rogeriee Thompson wrote on behalf in protected activity — in this case the taking of of the court. that McCafferty applied an incorrect Because the plaintiff failed to present an FMLA leave — and then later brandishing that “heightened standard” by reading a 2004 concrete evidence of such animus, Thompson protected activity as a shield.” 1st Circuit ruling, Cariglia v. Hertz Equip. continued, the “cat’s paw theory is effectively Rental Corp., to require in a cat’s paw case declawed.” individual employee in an investigation, finds took a leave of absence. Ameen apparently that information provided by allegedly The 25-page decision is Ameen v. an improper practice, and thereby terminates agreed to “help out” with overtime after he discriminatory or retaliatory actors to a Amphenol Printed Circuits, Inc. that employee, only to find out later that the returned, and the leave was approved. The decision-maker be “inaccurate, misleading improper practice is more widespread. In company also spread his accrued vacation or incomplete.” ‘Correctly reinforced’ Ameen, the plaintiff apparently was not the time over the weeks of his leave to protect According to the plaintiff, the U.S. Supreme Jonathan D. Rosenfeld of WilmerHale in only employee manipulating the timecard his benefits. Court’s 2011 Staub v. Proctor Hospital Boston, who represented the defendant, said system to his advantage. In the meantime, Ameen committed an decision suggests that the reporting of the decision “correctly reinforces that an “A plaintiff’s attorney would argue that error that cost the company production time. truthful information motivated by unlawful employee is not insulated from adverse action [his] client should not be singled out for The company claimed he tried to cover it up animus can support a cat’s paw claim. simply by engaging in protected activity — in investigation, and that doing so is the product and he received a written warning, the second But the 1st Circuit declined to analyze that this case the taking of an FMLA leave — and of bias,” said Mantell, a lawyer at Rodgers, he had received as an employee. issue, emphasizing that either interpretation then later brandishing that protected activity Powers & Schwartz. “However, the court When Ameen returned from his personal still requires a showing that the person as a shield. Where the employee engages indicates that, under certain situations, it leave in late May, he apparently declined to providing the information was motivated in wrongdoing and the employer acts in is appropriate and not pretextual to target work overtime despite his earlier promise. by retaliatory animus. That is where the response, the prior protected activity will not individual employees for investigation.” According to Ameen, Pratt became angry plaintiff’s claim failed, the court found. provide protection.” Plaintiff’s counsel Lauren S. Irwin of Upton when he refused overtime even though Pratt First, the panel rejected the plaintiff’s Rosenfeld also noted that as more and & Hatfield in Concord, New Hampshire, knew Ameen needed time to be with his argument that Conners’ failure to report more employees seek to use the cat’s paw declined to comment. family. other workers who took excess break time theory to support discrimination and On June 22, 2012, first-shift group leader was sufficient to demonstrate animus. retaliation claims, the decision highlights for Stealing time Paul Conners reported to Pratt that according “Other than pointing to Conners having employers how important it is for decision- Plaintiff Murad Ameen worked for to two of Ameen’s co-workers, he was reported Ameen’s extended breaks to makers to conduct their own investigations defendant Amphenol Printed Circuits, a cheating on his time card. superiors, Ameen gives us no other rather than simply “rubber-stamping” manufacturer of printed circuit boards, as Pratt brought the matter to the attention explanation or evidence of this hostility,” recommendations from subordinates that a a “group leader” responsible for operating of operations director Christine Harrington. Thompson wrote. plaintiff might later claim were motivated by drill machines, leading other drill operators She ordered a follow-up investigation that “Regardless of Ameen’s opinion on what unlawful animus. on the second shift, and assisting in planning revealed Ameen had punched out at some may have motivated Conners to report his Tawny W. Alvarez of Verrill Dana in overtime staffing to meet customer demand. point each day for 30 minutes but would extended break times, his ‘subjective belief Portland, Maine, represents employers and In March 2012, Ameen requested and continue working. Then, at another time, he in retaliation is not enough’ to show animus is licensed in Massachusetts. She said she received a two-week leave under the FMLA would leave the property for about an hour. on Conners’s part, and no objective evidence found particularly interesting the plaintiff’s in conjunction with the birth of his second That way, Ameen — who was entitled by in the record supports his animus theory,” argument that the cat’s paw theory applies child. He then requested and received a company policy to a 30-minute unpaid lunch Thompson continued, quoting the 1st even if those reporting the improper act one-week extension. He worked a reduced break and 15-minute paid break — would Circuit’s 2010 decision in Roman v. Potter. leading to the termination decision provide schedule during most of that time. apparently be compensated for an additional The court was similarly unmoved by the truthful information. When he returned to work full time, he 15 minutes of time he did not work. plaintiff’s contention that Pratt’s failure to Though the 1st Circuit found it unnecessary declined requests to work overtime due to After further investigation, Harrington escalate the issue of extended breaks by other to address that aspect of the plaintiff’s his wife’s poor post-partum health. Though ordered that Ameen be terminated. In the employees to upper management constituted argument, Alvarez said if the passing of overtime was not mandatory, he and his termination meeting, Ameen accused Pratt of a showing of retaliatory animus. accurate information could indeed be used as employer disagreed over whether it was “picking” on him because he could not work “[The defendant] repeats it had never the basis for an assertion of unlawful animus, expected. overtime due to his wife’s health situation. before encountered a case in which an employers would never be able to discipline On April 4, 2012, Ameen requested three Pratt denied the accusation. employee had consistently combined employees, since an argument of retaliation and a half weeks of non-FMLA personal leave Ameen subsequently sued Amphenol in two breaks and then took an additional couched in a cat’s paw theory could be used to take a trip to his native Iraq. At a meeting U.S. District Court, alleging that the company unauthorized quarter hour on top of that,” to hold the employer liable. attended by Ameen, supervisor Joseph Silva, violated the FMLA by retaliating against him Thompson said. “Nothing in the record That would contradict the standard laid operations manager Raymond Pratt and for taking family leave. contradicts this assertion. … Similarly, there out by the U.S. Supreme Court in its 1973 human resources director Valerie Hartlan, In doing so, Ameen asserted a “cat’s is nothing to connect Ameen’s general and McDonnell Douglas Corp. v. Green Pratt expressed concern about the timing paw” theory that, even though Harrington vague allegations of hostility by Pratt to decision that an individual can be terminated of the trip because it was a busy time for the was not aware of his leave when she made Ameen’s FMLA-protected activity, if any, or otherwise disciplined for reasons company. the decision to fire him, Pratt and Conners rather than to his unauthorized breaks.” independent of any protected activity, Ameen allegedly responded that he planned acted out of retaliatory animus in reporting Accordingly, the 1st Circuit concluded, Alvarez said. to take the trip whether or not the company his timecard violations. Thus, he argued, the plaintiff failed to make the required Boston lawyer Robert S. Mantell, who granted his request. Pratt apparently warned the purported violations were a pretext for showing that the defendant’s stated reason represents employees, said the decision raises that even if leave was granted, Ameen’s unlawful retaliation. for his termination was a pretext for retaliation. another interesting issue: whether there is position might be filled while he was away, Judge Landya B. McCafferty granted Thus, the panel ruled, the trial court’s summary proof of pretext when an employer targets an as had happened when another group leader summary judgment for the employer, finding judgment should be affirmed.

Local foreclosure ordinances preempted by state law

Continued from page 6 material releases at that site. The foreclosure ordinance included language excluding sanitary code, the SJC ruled. ordinance alters that calculus by requiring owners “exempt from such actions by In the only win for Springfield in the case, its requirement that an owner of a vacant mortgagees not yet in possession to enter Massachusetts General Laws.” the SJC found that the registration fee charged and/or foreclosing property remove the property and assume possession. In so “Simply put, a municipality has no under the city’s foreclosure ordinance has hazardous materials to the satisfaction of the doing, a secured lender may become liable regulatory power in a field already wholly the characteristics of a lawful fee — collected fire commissioner squarely conflicts with the under the OHMRPA through compliance occupied by the State unless explicitly granted “not to raise revenue but to compensate OHMRPA, the SJC ruled. with the foreclosure ordinance. As such, the such power to regulate by the statute itself,” the governmental entity … for a particular “Here, we can infer that the Legislature foreclosure ordinance is inconsistent with Spina wrote. “The city cannot exempt a secured governmental service which benefits the has decided that secured lenders not in the OHMRPA.” lender from the foreclosure ordinance if it has party paying the fee in a manner ‘not shared possession (nor previously in possession) of The SJC rejected Springfield’s argument no power to include the lender.” by other members of society’” — rather than a site should not be liable for any hazardous that there was no conflict because the The ordinance also conflicts with the state an illegal tax. page40 |12 Massachusetts | New England IN-HOUSE Lawyers | Weekly FEBRUARY | January 2015 12, 2015 masslawyersweekly.com | Cite this page 43 MLW 888 People in the Law Contact Matt Yas at [email protected]

NELF honors Raytheon GC The New England Legal Foundation held its first annual John G.L. Cabot Award Dinner at the Fair- mont Copley Plaza in Boston. The evening’s guest of honor was Jay B. Stephens, senior vice president, 12general counsel and secretary of the Raytheon Co.

1 Stephens (left) poses with John G.L. 3 Cabot, formerly of Cabot Corp., after whom the award is named.

2 From Liberty Mutual Insurance: Karen V. Morton (left), senior vice president and deputy general counsel-corporate litigation; Arlene Zalayet, senior vice president and general attorney; and Christopher N. Shumate, home office counsel

3 Sara Jane Shanahan of Sherin & 45Lodgen with Paul G. Cushing, section head for litigation at Partners HealthCare Systems

4 Wendell L. Taylor (left), with Amanda L. Wait and David A. Higbee, all partners at Hunton & Williams

5 Stephens (left) receives his award from NELF President Martin J. Newhouse.

6 From left: NELF board Chairman Mark T. Beaudouin, vice president 6 and general counsel of Waters Corp.; Stephens; and Paul T. Dacier, executive vice president and general counsel of EMC Corp.

7 Staples general counsel and Senior Vice President Michael T. Williams (at left) and his wife, Susan, pose with Stephens and his wife, Julie.

8 From left: Stephens with Brian G. Leary and James E. McDermott, partners at Holland & Knight, and 78 Leary’s wife, Valerie

John V. Hobgood, Sarah B. Petty, Kevin S. Prussia and Gary New associations R. Schall have been named partners at WilmerHale in Boston. Professional groups New Katherine C. Bailey has joined Robinson & Cole in Boston Jodi B. Lazarus has been named operations supervisor at JosephEngland H. Baldiga,- a partner at Mirick O’Connell in West- as an associate in the real estate and development group. - borough, has beenIN appointed-HO vice chairmanUSE of the Clients’ Sign up for theWrentham District Court. WEEKLYBaker Signet 42 = “New England” ALERT SecurityUtopia Black 89Board points = “In-House” by the Supreme Judicial Court. and get access to the most important news andEllen M. Giblincase, counsel digests. in the Boston office of Edwards, Promotions Honors Wildman, Palmer, has been named a Cyber Leadership Fel- Maximillian J. Bodoin has been elevated to partner in the Anthony J. Benedetti, chief counsel for the Committee for low and adjunct faculty member at the Pell Center for Inter- Boston office of Holland & Knight. Public Counsel Services, received the Patriot Award from the national Relations and Public Policy at Salve Regina Universi- Employer Support of the Guard and Reserve for his support ty in Newport, Rhode Island. Jan W. Egan has been named a partner in the banking and of employees who serve in the Massachusetts National Guard L. Alexandra Hogan of Shatz, Schwartz & Fentin in finance practice at Jones Day in Boston. and Reserve. Sign up today for FREESpringfield has atbeen appointed vice chair of the New England division of the International Women’s Insolvency and Re- structuring Confederation. Sharehttp://newenglandinhouse.com/e-mail-signup/ your events with the legal community. Brian E. Whiteley, a partner in the Boston office of His- Submit photos and captions to Matt Yas at [email protected] cock & Barclay, has been appointed to the Board of Bar Over- seers as a hearing officer.