Published by Husson University Bangor, Maine For the NORTH ATLANTIC REGIONAL BUSINESS LAW ASSOCIATION EDITORS IN CHIEF William B. Read Husson University Marie E. Hansen Husson University BOARD OF EDITORS Robert C. Bird Carter H. Manny University of Connecticut University of Southern Maine Gerald R. Ferrera Christine N. O’Brien Bentley University Boston College Stephanie M. Greene Jason H. Peterson Boston College Suffolk University William E. Greenspan Lucille M. Ponte University of Bridgeport Florida Coastal School of Law Anne-Marie G. Hakstian Margo E.K. Reder Salem State College Boston College Chet Hickox Patricia Q. Robertson University of Rhode Island Arkansas State University Stephen D. Lichtenstein David Silverstein Bentley University Suffolk University Gerald A. Madek David P. Twomey Bentley University Boston College i GUIDELINES FOR 2012 Papers presented at the 2012 Annual Meeting and Conference will be considered for publication in the Business Law Review. In order to permit blind peer refereeing of manuscripts, papers must not identify the author or the author’s institutional affiliation. A removable cover page should contain the title, the author’s name, affiliation, and address. If you are presenting a paper and would like to have it considered for publication, you must submit two clean copies, no later than March 26, 2012 to: Professor William B. Read Husson University 1 College Circle Bangor, Maine 04401 The Board of Editors of the Business Law Review will judge each paper on its scholarly contribution, research quality, topic interest (related to business law or the legal environment of business) writing quality, and readiness for publication. Please note that, although you are welcome to present papers relating to teaching business law, those papers will not be eligible for publication in the Business Law Review. This subject matter should be submitted to the Journal of Legal Studies Education. Also note that the Board of Editors will consider only one paper per person, including co-authored papers. Only papers presented at the Annual Meeting will be considered for publication. FORMAT 1. Papers should be no more than 20 single-spaced pages, including endnotes. For fonts, use 12 point, Times New Roman. Skip lines between paragraphs and between section titles and paragraphs. Indent paragraphs 5 spaces. Right-hand justification is desirable, but not necessary. 2. Number pages in pencil on the back in the lower right corner. Do not number the front of the page. Please do not fold or staple your paper. 3. Margins: left—1-1/2 inches, right, top, bottom (except first page)—1 inch. 4. Upon acceptance, the first page must have the following format: a. The title should be centered, in CAPITAL LETTERS, on line 10. b. Following the title, center the word “by” and the author’s name, followed by an asterisk (*). c. Space down 3 lines and begin your text. d. Please add a solid line (18 spaces in length) beginning from the left margin, toward the bottom of the first page, leaving enough room under the line to type on the next line an asterisk and the author’s position or title and affiliation. This information should appear as the last line on the page. 5. Headings: FIRST LEVEL (caps, flush with left margin) Second Level (center, italics) Third Level: (flush with left margin, italics, followed by a colon [:]) Fourth Level: (flush with left margin, italics, followed by a colon [:], with text immediately following). 6. Footnotes should conform to the Uniform System of Citation, 19th edition. 7. E-mail a copy of the final version of your paper in Microsoft Word to [email protected]. ii TABLE OF CONTENTS Domestic Partner Employee Benefit for Same-Sex and Opposite Partners in the Era of Same-Sex Marriage: The Massachusetts Experience James Angelini and Jason Peterson.........................................00 01 Executive Compensation: The Impact of Derivative Lawsuits and Regulations after Disney Susan C. Atherton......................................................................00 0 25 Facebook Got Me Fired: Legal and Management Issues for Social Networking and the Blogosphere Kabrina Krebel Chang...............................................................00 0 47 Fitting the Jigsaw Pieces Together to Define the Scope of the Tax Shelter Exception to the Section 7525 Privilege Jennifer L. Chapman.................................................................000 63 Reproduction and Distribution of Copyrighted Materials for Use as Exhibits in a Judicial Proceeding: Fair Use or Foul Play? William E. Greenspan ...............................................................000 85 The Diamond is the Crystalline Revelator Chet Hickox and Gina Di Grandi .............................................000 99 The Bureau of Consumer Financial Protection: Regulation, Deregulation, and Reregulation Richard J. Hunter, Jr., John Shannon and Mark Blodgett....000113 Confusion from the Tax Court: The Ambiguous Medical Expense Deduciton David S. Kistler..........................................................................000131 Domestic Violence and the Workplace: A New Connecticut Law Joins the Debate Christopher L. Levesque and Robert C. Bird............................000147 State Restraints on Prescription Records: “Constitutional Flu” or Legitimate Remedy? Carter Manny.............................................................................000167 v Vicious Cycle: How Lawyers Perpetuate Delaware’s Dominance and Indeterminacy Robert Miller ..............................................................................000185 Board of Trustees V. Roche Molecular Systems, Inc.: Negotiating the Web of Competing Ownership Claims to Inventions Arising from Government-Funded Academic- Industry Collaboration Margo E. K. Reder .....................................................................000211 The Ku Klux Klan Act and the Intracorporate Conspiracy Doctrine Patricia Quinn Robertson and John F. Robertson ..................000235 8 Copyright 2011 North Atlantic Regional Business Law Association vi DOMESTIC PARTNER EMPLOYEE BENEFIT FOR SAME-SEX AND OPPOSITE PARTNERS IN THE ERA OF SAME-SEX MARRIAGE: THE MASSACHUSETTS EXPERIENCE by JAMES ANGELINI* AND JASON PETERSON** INTRODUCTION This article examines the quandary employers face with respect to domestic partnership benefits (DPBs) in gay marriage states. In 2004, activists celebrated as Massachusetts became the first state to legalize gay marriage.1 Leading up to the Massachusetts Supreme Judicial Court’s landmark holding in Goodridge v. Department of Public Health,2 many employers had voluntarily offered DPBs to the same-sex partners of their employees. Goodridge and gay marriage turned the discriminatory argument on its head. Namely, would those employers continue to offer benefits to employees in same-sex relationships, often to the exclusion of employees in opposite-sex relationships, when both same-sex and opposite-sex couples could legally marry? Since 2004, four additional states have legalized gay marriage and employers in each of those states must now resolve the same dilemma.3 The Massachusetts experience, therefore, provides a useful roadmap to predict employer reaction. This article will first summarize the current * Associate Professor, Accounting Department, Suffolk University, Sawyer Business School ** Assistant Professor, Business Law & Ethics, Suffolk University, Sawyer Business School 1 Same-Sex Marriage, Civil Unions and Domestic Partnerships, NATIONAL CONFERENCE OF STATE LEGISLATURES (last updated September 2010), http://www.ncsl.org/ default. aspx? tabid=16430. 2 798 N.E.2d 941 (Mass. 2003). 3 Same-Sex Marriage, Civil Unions and Domestic Partnerships, NATIONAL CONFERENCE OF STATE LEGISLATURES (last updated September 2010), http://www.ncsl.org/ default.aspx?tabid=16430. 2 / Vol. 44 / Business Law Review state of domestic partnership policies including pertinent historical, financial, tax, and the myriad legal obstacles. Second, through an empirical survey this article will suggest that Massachusetts employers have surprisingly extended their DPBs policies. Finally, this article will conclude by discussing the generalizability of our findings to the states and other research limitations. EVOLUTION OF DOMESTIC PARTNERSHIPS Employers typically offer fringe benefits to employees and their families, including legal spouses.4 Examples include health insurance, tuition payments, life insurance, flexible spending accounts, and health savings accounts.5 Some employers offer these benefits to same-sex and, to a lesser degree, opposite-sex domestic partners.6 The main advantage and motivation of employers extending benefits to domestic partners is to attract and retain the most qualified employees.7 Employers also offer DPBs because they may feel it is the right thing to do and not offering such benefits is often viewed as discriminatory.8 The disadvantage of offering domestic partner benefits is mainly cost and perhaps legal issues as discussed in this article. History The history of domestic partnerships is relatively short. Commentators generally credit Tom Brougham with establishing the term in 1979.9 Mr. Brougham was instrumental in helping to establish the first municipal DPBs offered to government employees in 1985.10 The first publicly traded company to offer benefits to domestic partners was Lotus, in 199111 and the first private employer to offer benefits to domestic partners was the Village Voice in 1982.12 There has since been dramatic growth in the 4 Domestic Partner