By Arvid von Taube on October 1, 2018A new section of the Delaware Limited Liability Company Act provides a new mechanism to divide an existing LLC into multiple, new LLCs and to allocate assets and liabilities among the resulting entities.
By Arvid von Taube on August 22, 2018Fresh off the heels of the European Union's sweeping new privacy regulations, the State of California recently passed a first-in-the-nation privacy law that is sure to have implications for many businesses outside of California.
By J. Allen Holland on August 13, 2018Governor Baker recently signed legislation limiting the enforcement of non-competition agreements against employees and independent contractors who reside in Massachusetts. Though Massachusetts courts have long imposed reasonableness limitations on non-competition agreements, this new legislation is the result of years of debate and numerous proposals.
Why you should care about complying with the GDPR even if you don't have customers in the European Union
By Arvid von Taube on June 27, 2018Even if you don't have many customers or website visitors from the European Union, new General Data Protection Regulation could still impact you.
Breaking News: Supreme Court Overrules Decades of Precedent Limiting Power of States to Collect Taxes from Online Retailers
By Theodore A. Lund on June 21, 2018The Supreme Court recently overruled decades of precedent limiting the power of states to collect taxes from online retailers. As a result, businesses and consumers should expect major legislative changes.
on May 25, 2018Whether you are unsure where to start with your estate plan or want to bring existing documents up to date, these frequently asked questions can help you plan your next step.
Estate Planning Toolbox - Documents Effective During Life: Healthcare Proxy, Living Will, and Durable Power of Attorney
on May 16, 2018Estate planning isn't limited to planning for the end. Instruments such as living wills and healthcare proxies can also offer legal protection for you and your loved ones during life.
on May 10, 2018Estate planning can seem like a daunting task, however it can provide important legal protection for both you and your family. This entry focuses on the importance of wills and trusts to the Estate Planning Toolbox.
By Arvid von Taube on May 8, 2018If you recently filed for or renewed a federally-registered trademark, it can be difficult to tell official USPTO notifications from third party imitators. Such imitators can be both convincing and misleading, but there are several red flags that can help you tell the real from the fake.
By Nathaniel C. Donoghue on April 26, 2018Despite being a new frontier and a still nascent technology, blockchain technology holds the promise to make the practice of law more efficient and more accessible. Practitioners who ignore this promised revolution do so at their own peril.
By Arvid von Taube on March 27, 2018The US Supreme Court recently confirmed that state courts can hear certain class action securities lawsuits, but uncertainty of outcomes in state and federal court will likely persist.
on March 16, 2018In today’s workforce, many employees work in a different state from their employer’s office. In Massachusetts, this arrangement requires careful planning by the employer in several legal areas.
By Nathaniel C. Donoghue on March 9, 2018In fiscal year 2017, the SEC examined approximately 15 percent of all federally registered investment advisers, up from 8 percent just five years ago. As the SEC ramps up the frequency and intensity of its examinations, registered entities must be aware of their obligations and the regulators’ key areas of focus.
By Arvid von Taube on March 6, 2018Despite what you may have heard on the radio or seen on TV, you can call it the Super Bowl, not “the Big Game”.
By David Glod on February 16, 2018With the recent explosion of public interest and media attention on cryptocurrencies such as Bitcoin and Ethereum, many have been left with questions such as: what is the legal status of cryptocurrencies, or cryptocurrency-based investment products? What are the legal implications of buying and trading them?
SJC decision makes clear: corporate board members and shareholders are not presumed to be personally liable for Wage Act claims
By David Glod on January 2, 2018In a decision issued December 28, 2017, the Supreme Judicial Court ruled that board members and shareholders of a company are not presumed to be personally liable for the company’s failure to pay wages.
Unfair and Deceptive Practices – Insurance Companies Must Conduct Reasonable Investigations Before Denying a Claim
By Jennifer Lang and Eric J. Krathwohl on November 7, 2017The U.S. International Trade Commission recently made recommendations regarding the importation of CSPV cells, used in solar panels, that would potentially double the price of solar panels available to US consumers. This blog provides a breakdown of the key legal issues from the ITC recommendations in advance of the public comment period.
By Jennifer Lang and Eric J. Krathwohl on October 23, 2017On October 3, 2017, the Massachusetts Department of Public Utilities took the significant step of opening an inquiry into the eligibility of energy storage systems for net metering. Massachusetts follows New York as a national leader on this issue, which could continue the expansion of renewable energy generation.
By Nathaniel C. Donoghue on September 27, 2017The SEC's Advisory Committee on Small and Emerging Companies recently issued its final report, providing recommendations on rules, regulations, and policies relating to capital raising, securities trading, public reporting, and corporate governance of small private businesses and publicly traded companies with less than $250 million in public market capitalization.
By Matthew Sweet, Thomas Bilodeau, III, David Glod on August 9, 2017On July 25, the U.S. Securities and Exchanged Commission released a Report that represents the first major injection of regulatory guidance into the burgeoning cryptocurrency markets. This blog will provide a breakdown of the key takeaways from the SEC’s Report and what it means for the cryptocurrency market going forward.
Proper Attribution and Retaining Rights in Creative Commons Licenses: Potential copyright pitfalls when creating or using material under a Creative Commons license
By Nathaniel C. Donoghue on July 24, 2017Since 2002, Creative Commons has published and maintained a selection of free-to-use copyright licenses. The concept is part of the broader open-source movement which has pushed back against traditional copyright laws. Though popular and successful, these licenses provide both creators and consumers deceptively broad latitude, unintentionally creating potential copyright pitfalls.
By David Glod on June 5, 2017The Department of Labor fiduciary rule (the “Fiduciary Rule”) will come into effect June 9, 2017. The Fiduciary Rule will apply fiduciary standards and impose certain requirements upon advisers to ERISA plans and individual retirement accounts, defined contribution plans and defined benefit plans.
By Thomas H. Bilodeau, III on March 9, 2017The Financial Industry Regulatory Authority (the “FINRA”) announced yesterday that it has filed a proposal with the Securities and Exchange Commission (the “SEC”) to streamline competency exams and facilitate opportunities for professionals seeking to enter or re-enter the securities industry.
By Thomas H. Bilodeau, III on January 26, 2017The 35th Annual Securities and Exchange Commission Government-Business Forum on Small Business Capital Formation was held on November 17, 2016 at SEC Headquarters in Washington, D.C. A panel of learned practitioners and securities law experts held a discussion on the state of the union of small business capital formation moderated by the Director of the SEC Division of Corporation Finance and the Chief of the Office of Office of Small Business Policy SEC Division of Corporation Finance. The then current SEC Commissioners also were in attendance.
By Frank N. Gaeta on December 1, 2016In light of the federal Defend Trade Secrets Act of 2016 (“DTSA”), along with recent decisions and other guidance from various federal agencies, companies should carve out exceptions from their confidentiality agreements and any agreements containing a release of claims (such as employment separation agreements). The exceptions are generally intended to allow employees to engage in protected “whistleblower” activity.
By James T. Finnigan on November 17, 2016Federal law requires that every employer who hires an individual for employment in the U.S. must complete a Form I-9 entitled Employment Eligibility Verification.
By Atakelti Desta on September 29, 2016For the past several decades, legislation has been in place to address the long-standing existence of gender pay discrimination. Under federal and Massachusetts law, employers are generally required to provide men and women equal compensation for comparable work. But until recently, in Massachusetts, “comparable work” was determined merely by job titles and job descriptions. On August 1, 2016, in a further effort to reduce the gender wage gap, Governor Charlie Baker signed into law an act that not only expands the definition of “comparable work” but also curbs common pay secrecy and pay inquiry practices by employers.
By David Glod on June 1, 2016If you’re a business owner, you probably already have certain policies and procedures related to how you store and backup your business records. Naturally, these policies and procedures must be disseminated to your employees and consistently followed. If that is done, such policies can help protect the company in the event it finds itself involved in litigation, and it turns out that relevant business records have previously been destroyed in accordance with company policy.
By Mark C. O'Connor on January 14, 2016The Worker Adjustment Retraining and Notification Act ("WARN") requires employers with 100 or more employees to provide 60 calendar days' notice of plant closings or mass layoffs to give transition time to workers and their families to adjust to the prospective loss of employment, seek alternative jobs and/or enter skill training or retraining to successfully compete in the job market. 29 U.S.C. §2101 et seq. Employers who fail to comply with WARN can be liable to affected employees for up to 60 days of pay and benefits as well as penalties. 29 U.S.C. §2104(a)(1).
By Stephen M. Kane on January 13, 2016A few years ago we were contacted by the winner of a $10,000,000 Massachusetts Lottery scratch ticket. He was adamant that he did not want the winnings to change his life or to have his friends and family (other than his wife) know about his good luck or have charities and others dun him for gifts or loans. He knew that the Massachusetts Lottery requires publication of the name and a photograph of all winners. Rich May was able to help him collect his winning anonymously.
By Mark C. O'Connor on January 11, 2016The Worker Adjustment Retraining and Notification Act ("WARN") requires employers with 100 or more employees to provide 60 calendar days' notice of plant closings or mass layoffs to give transition time to workers and their families to adjust to the prospective loss of employment, seek alternative jobs and/or enter skill training or retraining to successfully compete in the job market. 29 U.S.C. §2101 et seq. Employers who fail to comply with WARN can be liable to affected employees for up to 60 days of pay and benefits as well as penalties. 29 U.S.C. §2104(a)(1).
Employers May be Liable to Reimburse Employees for Their Use of Their Personal Cell Phones or Other Electronic Devices
By Mark C. O'Connor on August 27, 2015Employees use cell phones, laptops, smart phones and other mobile devices for both business and pleasure. Are employers liable to reimburse the employee for their business use of their personal cell phone, laptop or other devices? A California Court of Appeals has held that employers must reimburse a reasonable portion of the employee’s cell phone bill if the employee must use their personal cell phone for work-related calls even if the employee has an unlimited data plan for which they do not actually incur any additional expense.
By Frank N. Gaeta on July 22, 2015Addressing an issue that continues to bedevil many employers, the Administrator for the U.S. Department of Labor’s Wage and Hour Division recently issued further guidance on whether a worker is an “employee” or an “independent contractor” under the Fair Labor Standards Act (FLSA). On July 15, 2015, the Administrator issued an “Interpretation” of the FLSA’s standard for determining how to categorize a worker. Ultimately, the Administrator stated, a worker who is “in business for him or herself” is an independent contractor, while a worker who is “economically dependent” on the employer is an employee.
By Atakelti Desta on July 22, 2015All states require that both real estate salespersons and real estate brokers be licensed by the state. While both perform many of the same duties, brokers are generally expected to complete more real estate education and have a more comprehensive familiarity with the laws affecting the sale of property. Massachusetts law requires that a salesperson be “engaged by a licensed broker” and “not conduct his own real estate business.” In spite of this requirement, brokers usually hire salespersons as independent contractors rather than traditional employees for general tax purposes.
By Mark C. O'Connor on June 17, 2015An employee's intentional violation of the company timekeeping policies may not be a defense to a Fair Labor Standards Act claim if the employer knows or has reason to know that an employee underreported his hours according to a recent decision by the Eleventh Circuit Court of Appeals in Bailey v. TitleMax of Georgia, Inc.
By Frank N. Gaeta on May 28, 2015Attorney General Maura Healey has announced a six-month deferral of the requirement to comply with the new Massachusetts sick leave law for employers with certain paid time off policies in effect as of May 1, 2015.
By Mark C. O'Connor on May 28, 2015Employers who receive an EEOC Subpoena which they believe is overly burdensome, unduly broad or irrelevant or seeks privileged information must file a petition with the EEOC within five business days of receiving the Subpoena. The Seventh Circuit Court of Appeals has ruled that, in order to object to an EEOC Subpoena based on irrelevance, over breadth or privilege, an employer must file a petition with the EEOC within such time period otherwise the objections are waived. It is not sufficient to object to the Subpoena when the EEOC files suit against the employer to enforce the Subpoena.
By J. Allen Holland on May 21, 2015The Massachusetts Attorney General’s Office has now issued Proposed Regulations for the implementation of the Commonwealth’s Earned Sick Time Law, slated to take effect on July 1, 2015. The Proposed Regulations provide employers with guidance and additional details on implementation of and compliance with the Earned Sick Time Law.
By J. Allen Holland on May 8, 2015As most know, the minimum wage for hourly and tipped employees has increased for 2015. Less publicized, however, are the new Minimum Wage Regulations employers must follow.
By James B. Heffernan on February 4, 2015According to a recent NAIOP Massachusetts forum, Chinese foreign investment in U.S. commercial real estate has increased from $3 billion in 2013 to $6.6 billion in 2014. As a result, China is now only second to Canada in cross-boarder real estate investments.
on January 29, 2015On January 15, 2015, the Massachusetts Securities Division adopted the Massachusetts Crowdfunding Exemption, 950 CMR 14.402(B)(13)(o) (the “Exemption”), allowing a company formed and having its principal place of business in Massachusetts to conduct intra-state (i.e., all investors are Massachusetts residents) crowdfunding offerings.
on January 13, 2015Today, companies of all sizes are contemplating and implementing internship programs. An increasingly common question is whether companies can establish unpaid internship programs. Generally, most for-profit companies in Massachusetts must pay interns at least the current minimum wage of $9.00 per hour.
on October 23, 2014If your employer grants you stock in connection with your services, under Section 83 of the Internal Revenue Code (the “IRC”), you will be taxed on the difference between the fair market value (“FMV”) of the stock and the amount you paid for the stock. In most early-stage company situations, an employer will grant stock to an employee that the employee loses if he or she leaves the company before a certain date (usually by repurchase by the Company and commonly referred to as “forfeiture”).
on October 1, 2014After working with a number of early stage companies trying to raise capital, it has become evident that the concepts of pre-money valuation and post-money valuation are often a source of confusion.
By David Glod on September 18, 2014A recent decision of the Massachusetts Supreme Judicial Court counsels that early-stage companies need to be especially protective of their trade secrets.
on August 12, 2014If you’re a player in the early-stage company space, you’ve likely heard of convertible promissory notes (CPNs).
on June 13, 2014A longstanding grey area of the law has been the broker-dealer registration requirements for finders – those persons or businesses effecting or facilitating transactions to raise capital through the sale of securities.
By Frank N. Gaeta on June 6, 2014Data security breaches are becoming more and more common, impacting businesses of all sizes. To respond to this unfortunate reality, almost every state has adopted notification procedures in the event of a security breach to ensure immediate actions are taken to mitigate possible harm.
By Erica P. Bigelow on February 18, 2014Almost every commercial property owner in the Commonwealth has encountered, if not personally used, a Massachusetts nominee trust - sometimes called a 'realty' trust. Often, new clients will tell me that an attorney (unidentified) told them to put their property in trust, or that they always put their properties into a trust.
By David Glod on January 28, 2014The First Circuit issued a controversial decision last summer, holding for the first time that a private equity fund can be held jointly and severally liable for the unfunded pension obligations of its portfolio companies.
By Howard L. Levin on December 6, 2013This year’s decision by the Massachusetts Supreme Judicial Court in 275 Washington Street Corp. v. Hudson River International, LLC, 465 Mass. 16 (2013) held that there was no reason to expand the common law remedy applicable to a general indemnity clause.
By James T. Finnigan on November 18, 2013Cases involving non-compete/non-solicit provisions in an employment contract are often settled after the preliminary injunction stage. Therefore, appellate court opinions involving such agreements are uncommon. However, the First Circuit recently issued an opinion in a case involving a non-solicitation covenant that offers some good news for employers.
By David Glod on November 13, 2013The Supreme Judicial Court recently adopted amendments to the Massachusetts Rules of Civil Procedure to establish discovery practices governing electronically stored information (“ESI”). The Reporter’s Notes to the amendments cite estimates that 93 percent or more of corporate information is now being stored in some digital or electronic format.
By James B. Heffernan on October 14, 2013Due to the credit crunch of the past few years and high interest rates on mezzanine financing, a new financing tool has emerged: the EB-5 Immigrant Investor Program. Enacted as part of the Immigration Act of 1990, the program is a great potential source of low interest financing for real estate developers. Of course, nothing comes easy and developers should be mindful that this source of funds does come with a few strings attached.
By Erica P. Bigelow on October 9, 2013If you own property – commercial, single or multi-family residential, or condominium – you probably assume, if you have 100% replacement cost coverage, that the insurance policy will pay out sufficient funds to allow you to rebuild in the event of a casualty. Not necessarily.
By James T. Finnigan on October 2, 2013Under the Patient Protection and Affordable Care Act (often called "Obamacare"), individuals will have access to health insurance coverage through the "Health Insurance Marketplace" ("Marketplace") as of January 1, 2014. The Marketplace consists of health insurance exchanges established by the states or the federal government to allow people seeking health insurance to compare, shop for, and purchase private insurance. Marketplace open enrollment began on October 1, 2013. In Massachusetts, the Marketplace is called the Massachusetts Health Connector.
on September 23, 2013If you’ve ever purchased or sold the securities of a private company, you’re probably familiar with Rule 506 of Regulation D. The current Rule 506 (the "Old Rule") provides a private offering exemption "safe harbor" under the Securities Act, which allows an issuer to sell securities without registering them with the Securities and Exchange Commission (the "SEC").
By Eric J. Krathwohl on June 5, 2013Over the past couple of years, following Massachusetts' announcement of its Solar Carve- Out program, there has been a tremendous flurry of development of large and small solar generation facilities.
By James B. Heffernan on May 29, 2013The Massachusetts Alcoholic Beverages Control Commission (ABCC) has just adopted a procedural change for approval of liquor license applications to speed the process for applicants.
By Rich May, P.C. on April 25, 2013You run a technology company. Imagine for a moment that I am a prospective investor or buyer of your company. As I perform my due diligence, among a lot of other questions, I want to find out if I can trust your intellectual property chain of ownership. By that I mean, can I trace a contractual link between your company and all the sources of the technology that you use and distribute, and can I verify that you haven't given away ownership or destructively broad rights to someone else?
By Rich May, P.C. on April 18, 2013Here’s a story you might have heard before. Fantastic Start-up, Inc. built a nice little business, from two founders and no revenue to 37 employees, 20 paying customers and revenue of $3.8 million last year. It took four long, hard years to get here, but now a VC firm wants to invest, and Fantastic Start-up could do some good things with that money. Due diligence started last week. And it doesn’t seem to be going all that well.
By Rich May, P.C. on March 25, 2013Restricted stock is a common way that companies put equity in the hands of their employees. Like stock options, the employee receives a grant (also called an award) from the company, in most cases he doesn’t pay anything for the grant, and usually it vests over time. But there are important differences between stock options and restricted stock. What is restricted stock? Restricted stock is shares of a corporation, issued by the company to a service provider (an employee, director, consultant, advisor or other person), with restrictions on transfer and a risk of forfeiture until specified vesting conditions are met.
By Eric J. Krathwohl on March 22, 2013Everyone knows what a NIMBY is and everyone in the renewable space knows what BANANA means (Build Absolutely Nothing Anywhere Near Anything), but here's a new one: "Nocebo." It's the opposite of placebo. Just as science has established the existence of a placebo effect -- thinking yourself out of an illness on the belief you're taking effective medicine, when you're taking a pill with no more curative properties than a piece of cereal -- so science has shown the opposite.
By Rich May, P.C. on March 15, 2013As explained in an earlier blog entry ("ISOs and NQSOs - What's the difference?"), the U.S. federal tax code recognizes two types of stock options: "incentive stock options" ("ISOs") and "non-qualified" stock options ("NQSOs"). How are they taxed? The best way to understand the difference is to start with a basic tax model, which applies to NQSOs.
By Rich May, P.C. on March 7, 2013In the United States, the federal tax code recognizes two types of stock options. Section 422 of the Internal Revenue Code lays out the requirements for a stock option to qualify as an "incentive stock option," widely called an "ISO," which carries a tax benefit. All other options are designated as "non-qualified" stock options, widely called "NQSOs."
By Rich May, P.C. on February 28, 2013Everybody likes to save money, right? And nobody enjoys paying a lawyer hundreds of dollars an hour for something that you can probably find on-line. It’s not hard to use the Internet to form a corporation or a limited liability company in any state, often for less than the cost of hiring a lawyer to do it. But you always get what you pay for.
on February 27, 2013If you’re thinking about starting a new business, one of the first decisions you’ll make is coming up with a name. In deciding on a name, it is important to understand the concepts of legal names, trade names (sometimes referred to as a d/b/a or fictitious name), and trademarks.
on January 11, 2013If you have been involved in a business transaction, then you have likely signed a letter of intent (sometimes referred to as a “memorandum of understanding” or “term sheet”). The purpose of a letter of intent is to outline the key terms of a deal before more detailed agreements are finalized.
By Eric J. Krathwohl on January 4, 2013The word of the day is wind! Notably, the new year brings with it another 24 month PTC for wind projects, as many in the industry predicted, but no one was banking on. The temporary resolution of the fiscal cliff by New Year's Eve legislation included extensions on a number of tax credits. Most notably for wind advocates, the Production Tax Credit has been extended for any projects commenced through 2013 and completed by the end of 2014.
By Rich May, P.C. on December 31, 2012Last spring my law firm issued an alert about the “Jumpstart Our Business Startups Act,” called the JOBS Act. This is a good place for a quick update and summary of that new law.
By Rich May, P.C. on December 29, 2012Okay, let’s assume you’ve ruled out forming your business as an LLC. You’ll use a corporation. So do you elect “small business corporation,” otherwise known as “S corporation” status the Internal Revenue Code (beginning with IRC section 1361), or fall back on the default “C corporation” status (meaning any corporation that isn’t an S corporation)?
By Rich May, P.C. on December 28, 2012You’ve got a choice: LLC or corporation? (Yes, I know there are actually a few others, such as limited partnerships and business trusts, but those are used in limited circumstances for very sophisticated investors; for now I’d rather focus on horses, not zebras.)