Massachusetts Lawyer Blog

A Massachusetts Continuing Legal Education (MCLE) emailed press release quoted a Boston Herald April 14, 2008 article finding

"One Massachusetts homeowner in 48 will lose their property to foreclosure in the next two years. . .32,976 Bay State homeowners will face foreclosure by about 2010."

While a Boston Globe April 25, 2008 article states:

"Foreclosures during the first three months of the year topped 2,800 … up about 140% over the same period last year."

Recently, more small business owners have been raising issues about their businesses and how to go about protecting their personal assets.

Are statistics on small business owners next?

Are you searching for a lawyer in Massachusetts but can’t find an attorney to fit your needs? This isn't a sales pitch for our firm. Instead I'm offering you these three websites listed below as a free resource to help you find lawyers when we can't.

Why? No firm should try to be all things to all people, but we do try to help consumers, litigants, and other lawyers find quality legal advice in Massachusetts -- even when it’s not with us. If our lawyers are not the right fit or we can’t make a suitable referral, perhaps these three attorney referral websites or resources can help you find a qualified lawyer to contact.

Massachusetts Bar Association, Boston Bar Association, or Massachusetts Trial Court Law Libraries lists several resources and contact information for local bar referral resources.

Disclaimer: I’ve been involved in the Massachusetts Bar Association, Boston Bar Association, and Norfolk County referral lists. I also may be listed in Suffolk County and Norfolk County Probate & Family Court under a pilot program for limited assistance representation. As membership on attorney referral lists can change, I thought you should know I have, do, or may participate on referral lists of lawyers from time to time. A referral is not legal advice and we make no representations or warranties about referrals made. I just hope these sites can help you save time in narrowing down your search.

LAW PASSED: A new Massachusetts labor or wage law will create treble (triple) damages against companies in wage and hour violation cases. This departs from federal courts and other states where an employer can raise a “good faith” defense and avoid treble damages.

Massachusetts Lawyers Weekly reports,

“Previously, under a 2005 Supreme Judicial Court decision, treble damages were available only in cases in which the court concluded that an employer had willfully and intentionally committed an infraction.”

“…the [Massachusetts] Legislature passed a bill on April 15 that makes Massachusetts the first state in the country to impose automatic treble damages against any business that violates wage and hour laws.”

EMPLOYEE BENEFIT: From a Massachusetts employee's perspective, this new labor law provides an incentive for employees and their lawyers to pursue claims. A $10,000 claim is now a $30,000 claim, plus attorneys’ fees. Apply this multiplier to multiple claimants and the numbers can add up quickly.

UNION ORGANIZING BENEFIT: Labor unions should celebrate this law’s enactment. From their perspective, this law will provide an additional tool for protecting employees’ wages.

Additionally, it may become a useful tool for union organizers who come across wage claim violations in non-unionized companies. Organizers can educate employees of their rights; motivate an employee to pursue a claim; and then use the cost and risk of litigation as a bargaining chip against a target company. I’ve seen this work with success in past organizing campaigns involving National Labor Relations Board (NLRB) complaints. With even higher stakes involved in Massachusetts wage cases now, I wouldn't be surprised to see this organizing strategy emerge on every union organizer’s radar soon.

DEFENSE STRATEGY: Nevertheless, the new threat of triple damages and attorneys fees in Massachusetts alone will likely impact the manner in which these cases are defended against. Defending these cases will require a reasonable assessment of the facts as well as the potential liabilities created by the new law. As in many areas of law, prevention still works best.

WAGE POLICIES AND PROCEDURES: With higher liability exposure in Massachusetts, companies doing business here would be well served to review their procedures on wage issues, as well as their dispute resolution practices and procedures best suited for these and other disputes. It makes sense for companies of any size to establish a relationship with a lawyer who can respond to an issue when it arises, or even better, before.

LIVING WAGES & FAIRNESS: A recent Massachusetts AFL-CIO Weekly Labor Reader dated Friday April 18, 2008, quoted past U.S. President Franklin Delano Roosevelt.

"No business which depends for existence on paying less than living wages to its workers has any right to continue in this country. By living wages I mean more than a bare subsistence level - I mean the wages of decent living."

Every person is entitled to the pay they earn as an employee. At the same time, good employers who are trying to do right by their employees and are providing a living wage also deserve protection, especially in this tough economy.

Full disclosure, I had attended and graduated from the AFL-CIO Organizing Institute before organizing for several unions around the nation. My experiences there and elsewhere helped guide me in deciding to attend law school. I now represent both employers and employees.

Sexual harassment (or discrimination) in Massachusetts workplaces can take many forms creating liability for both individuals and companies. Earlier today, I talked with a good friend about his first day in a new job. Day one consisted of him filling out the usual forms, making introductions, and watching a video on sexual harassment in the workplace. He summed up his new company's sexual discrimination policy as, “don’t look, don’t touch.” While that may be a good message to absorb on day one, as a manager who could subject both his company and himself to liability under sexual harassment law, it may be helpful to know a bit more about it.

Formal workplace sexual harassment standards are set forth in Massachusetts General Laws, Chapter 151B. Additionally, the Massachusetts Commission Against Discrimination (MCAD) issues guidelines regarding sexual harassment and what employees and employers should do to prevent, stop and respond to sexual harassment complaints. Two nonexclusive types of sexual harassment are known as: "quid pro quo" and "hostile work environment" harassment.

Quid pro quo harassment involves “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when … submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions.”

Hostile Work Environment harassment includes “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when … such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.”

Examples offered by MCAD of each type are:

quid pro quo harassment: termination; demotion; denial of promotion; transfer; alteration of duties, hours or compensation; or unjustified performance reviews.

hostile work environment: inappropriate touching; sexual epithets, jokes, gossip, sexual conduct or comments; requests for sex; displaying sexually suggestive pictures and objects; and leering, whistling, or sexual gestures.

While sexual harassment jokes may be funny in movies or sitcoms, discrimination can be devastating for someone suffering it in their employment. If you are the target of or subject to sexual harassment at the workplace then you need to act to preserve your rights in Massachusetts. While Massachusetts law did require claims to be filed within six months, changes in the law have extended the filing deadline to 300 days. Of course, laws and deadlines can change. Massachusetts discrimination and employment law has many nuances best navigated by a lawyer who takes the time to hear your case, identifies the applicable law, and knows how to protect your rights. Whether you work on the South Shore, are appearing in Boston before the MCAD, or have a claim best suited for Superior Court, don’t proceed without knowing your rights and how to protect them.

Massachusetts train crashes are recoverable against the MBTA and its operators. I previously discussed this in my post on commuter train crashes and compensation for personal injuries or fatalities, "Personal Injuries and Commuter Train Crashes in Massachusetts: Seeking Compensation for Injuries Involving the Massachusetts Bay Transportation Authority (MBTA)." Some may ask, “What are the outer limits of the state’s liability in a commuter train accident?”

Massachusetts General Laws (M.G.L.) Chapter 161A, Section 43 addresses the liability policy requirements for commuter rail train service (the MBTA and the operating railroad company). The law provides for a liability insurance policy with annual policy limits of at least $75,000,000 subject to self-insured retention of at least $7,500,000.

Liability beyond the available insurance coverage is disclaimed in the statute, but this law does not apply to third parties who may be at fault for a train accident. Nonetheless, this ceiling does seek to cap liability for the Commonwealth of Massachusetts. If a maximum recovery is likely to be paid out, you may consider being among the first to settle so you are not prevented from a recovery based on the state’s liability cap. That is, once the maximum amount of funds are dispersed to other claimants, it will be hard (if not impossible) to receive your fair share.

Bruce Selya, a judge since 2005 with the 1st U.S. Circuit Court of Appeals has been named chief judge of The U.S Foreign Intelligence Surveillance Court of Review. This court handles appeals over wiretaps of suspected terrorists or spies. It was created to hear government appeals when lower courts reject the government's application.

The Providence Journal reports Selya will take over as chief judge on May 19 and his term will run through 2012. Selya, from Rhode Island, was a federal judge before being appointed to the Federal Appeals Court in 1986.

A Congressional Research Service Report, The U.S. Foreign Intelligence Surveillance Court
and the U.S. Foreign Intelligence Surveillance Court of Review: An Overview, dated January 24, 2007, by Elizabeth B. Bazan, Legislative Attorney, American Law Division provides a 15 page report. The Report's Summary states:

The national debate regarding the National Security Agency’s Terrorist Surveillance Program (TSP) focused congressional attention on the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review created by the Foreign Intelligence Surveillance Act. Congressional interest in these courts has been heightened by the January 17, 2007, letter from Attorney General Gonzales to Chairman Leahy and Senator Specter advising them that a Foreign Intelligence Surveillance Court judge had “issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization,” stating that all surveillance previously occurring under the TSP will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court, and noting that the President has determined not to reauthorize the TSP when the current authorization expires. This report examines the creation, membership, structure, and jurisdiction of these courts. It will be updated as subsequent events may require.

Wikipedia gives a general overview of the topic,

The United States Foreign Intelligence Surveillance Court of Review is a U.S. federal court authorized under 50 U.S.C. § 1803 and established by the Foreign Intelligence Surveillance Act of 1978 (known as FISA for short). It is a three judge panel whose sole purpose is to review denials of applications for electronic surveillance warrants (called FISA warrants) by the United States Foreign Intelligence Surveillance Court (or FISC). Each judge of the FISC, in turn, has the jurisdiction to oversee requests for surveillance warrants by federal police agencies (primarily the F.B.I.) against suspected foreign intelligence agents inside the United States. Any appeals from the Court of Review are made directly to the Supreme Court. Like a grand jury, the Court of Review is not an adversarial court; rather, the only party to the court is the federal government, although other parties may submit briefs as amici curiae. Records of the proceedings are kept, but they are classified, although copies of the proceedings with sensitive information redacted may be made public.

The judges of the Court of Review are district or appellate federal judges, appointed by the Chief Justice of the United States for seven year terms. The terms are staggered so that there are at least two years between consecutive appointments. A judge may be appointed only once to either this court or the FISC.

The Court of Review was called into session for the first time in 2002 in a case referred to as "In Re Sealed Case No. 02-001". The FISC had granted a FISA warrant to the F.B.I., but had placed restrictions on its use; specifically, the F.B.I. was denied the ability to use evidence gathered under the warrant in criminal cases. The Court of Review allowed a coalition of civil liberties groups, including the American Civil Liberties Union and the Electronic Frontier Foundation, to file briefs as amici curiae arguing against the F.B.I's new surveillance regulations. The Court of Review held that the restrictions that the FISC had placed on the warrant violated both FISA and the USA PATRIOT Act and that there was no constitutional requirement for those restrictions.

Current composition of the court listed by Name, Circuit, Appointed, Expiration of Appointment Edward Leavy (presiding), Ninth, September 25, 2001, May 18, 2008 Ralph K. Winter, Jr., Second, May 18, 2003, May 18, 2010 Bruce Marshall Selya, First, October 8, 2005, May 18, 2012 List of former judges Laurence H. Silberman, D.C., May 18, 1996, May 18, 2003 Ralph B. Guy, Jr., Sixth, October 8, 1998, May 18, 2005 The exact dates of Judge Silberman's tenure are uncertain.

In 2002, Anita Ramasastry, an Assistant Professor of Law at the University of Washington School of Law in Seattle and the Associate Director of the Shidler Center for Law, Commerce & Technology wrote a critcal review entitled, "THE FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW CREATES A POTENTIAL END RUN AROUND TRADITIONAL FOURTH AMENDMENT PROTECTIONS FOR CERTAIN CRIMINAL LAW ENFORCEMENT WIRETAPS"

While "A history of Foreign Intelligence Surveillance Court" indicates:

Continue reading " AP Reports Federal appeals judge in Boston named top judge of wiretap court " »

On April 14, 2008, the United States Bankruptcy Court District of Massachusetts announced both a red-lined version and a complete version of the new local rules and forms (effective May 1), have been made available under the Laws, Rules, Fees and Forms Section of their website.

A note states in the red-lined version states,

The amendments have been red-lined except where indicated. Red-lining has not been inserted where a) the provision is new or b) red-lining would, in the opinion of the Court, interfere with the reading of the provision.

Another available resource on local rules in the Bankruptcy Court is the, The Appellant Panel for the First Circuit’s Local Rules

Recently a relative in Massachusetts requested my help in obtaining her security deposit from her previous landlord. Her situation was unique, but the Legal Assistance Corporation of Central Massachusetts offers a site that may be helpful to Massachusetts consumers looking to make a written demand for the return of their security deposit. The site/form allows a user to select up to five reasons for seeking the return of a security deposit.

The site allows users to choose from the following reasons for the return of the security deposit:

1. Landlord didn't return security deposit within 30 days after tenant moved out or give me notice of what he/she was using the security deposit for;

2. Landlord didn't put the security deposit in a separate interest-bearing Massachusetts bank account;

3. Landlord didn't give the tenant a written receipt;

4. Landlord did not let the tenant see the security deposit records; or

5. Landlord did not give tenant written notice of bank account number and bank address where deposit is held.

While this list may not apply to all cases, the site was easy to use and may help many. I recommend sending your security deposit demand letter certified mail return receipt requested (so you have proof the letter was sent and received.) If your security deposit is not returned, you may consider filing a small claims action in Massachusetts.

You’re a Massachusetts small business owner. Do you have a plan to pass your business down to the next generation? Who will take over for you? How much is the business worth? How does your estate plan address your business interest? How will employees be treated? How will you preserve the mission of your company and protect what you've worked so hard to build?

Small Business Notes states,

Ninety percent of U.S. businesses are family-owned, and one-third of the Fortune 500 are either family-owned or family-controlled. Yet only 30 percent of family-run companies today succeed into the second generation. An even smaller 15 percent survive into the third generation. The reason, according to many experts, is obvious - the lack of an orderly succession plan.

Although it's information may be dated (1991), a Small Business Association article's "Appendix" contains several forms that may assist a business owner considering succession planning. Download file

As a MA business owner, designing a succession plan is an important undertaking. Our law office has worked with many small business owners on the South Shore who are looking for legal counsel but want to avoid the time involved traveling into Boston. As a smaller firm (by choice) we are able to form quality relationships allowing us to understand the dynamic challenges you may face over time. Our personalized approach allows us to help you with both your business and personal planning. When an issue unexpectedly arises, our clients can pick up the phone and talk with a lawyer they know and who knows them. Regardless of the law firm you work with, the assistance of someone who understands your goals provides you with an enhanced opportunity for your life's work to succeed both now and in the future.

A recent Massachusetts Appeals Court case examined the issue of fiduciary duty and contract law in a commercial real estate dispute arising between general partners and limited partners.

The case involved, “…various transactions by the general partners, including their purchase, without the involvement of the limited partners, of large real estate parcels neighboring the building project for which the limited partnership was formed….”

The Court found. “As the limited partnership agreement expressly allowed the general partners' actions, we affirm the judgment rejecting all the limited partners' claims.”

See Slip Opinion 07-P-422 Appeals Court, Robert L. Fronk, Jack Saltiel and Maila L. Walter v. John P. Fowler, Jeffrey A. Millman, Robert Lee Wolff, Jr., Maple Leaf Cambridge Corporation, and The Cambridge Company, Inc.

Several cases were cited that should be considered when entering a contract or any business venture: "the obligations of the parties are determined by reference to contract law, and not by the fiduciary principles that would otherwise govern." Chokel v. Genzyme Corp., 449 Mass. 272, 278 (2007). See Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 408 (1995) ("questions of good faith and loyalty with respect to rights on termination or stock purchase do not arise when all the stockholders in advance enter into agreements" concerning those issues); Sonet v. Timber Co. L.P., 722 A.2d 319, 322 (Del. Ch. 1998) ("principles of contract preempt fiduciary principles where the parties to a limited partnership have made their intentions to do so plain"). … "[W]here sophisticated parties choose to embody their agreement in a carefully crafted document, they are entitled to and should be held to the language they chose." Anderson St. Assocs. v. Boston, 442 Mass. 812, 819 (2004).

This case serves as a reminder that it’s important to have an agreement in writing, but also to fully understand the rights and duties the agreement creates. If you’re a business owner in Massachusetts, it’s unwise to think of contracts or agreements as just routine boilerplate language. You should question each provision and understand what it means for you and your business interests.

Residential real estate deals in Massachusetts can lead to the repair or replacement of failed cesspool or septic systems (Title V). They can also involve issues dealing with lead paint abatement. These are examples of only a couple of tax credits (cesspool or septic/sewer or lead paint) which may be available to you.

For seniors, the DOR publication, Tips for Seniors and Retirees: Deductions, Exemptions and 2007 “Circuit Breaker” Tax Credit, is a useful resource for understanding how the 2007 “Circuit Breaker” Tax Credit works.

The Massachusetts Department of Revenue lists Tax Credits (2007) for Individuals and Families and includes: a description of the credit, calculation of the credit, where to calculate the credit, whether the credit is refundable or not refundable, and if there if carryover is permitted. Credits to consider (this is not tax advice) include but are not limited to:

Brownfields Credit for Rehabilitation of Contaminated Property, Earned Income Credit (EIC), Economic Opportunity Area Credit (EOAC), Film Incentive Credit, Full Employment Credit, Historic Rehabilitation Credit, Home Energy Efficiency Heating Credit Carryover to 2007, Lead Paint Removal Credit, Limited Income Credit (LIC), Massachusetts Low Income Housing Credit, Medical Device Tax Credit, Real Estate Tax Credit for Persons Age 65 and Older (known as the Circuit Breaker Credit), Repair or Replacement of Failed Cesspool or Septic System Credit (Title V), Solar Wind and Energy Credit, and Taxes Paid to Other Jurisdictions Credit.

Additionally, the DOR Web Services for Income (WSI) is a website where individuals and tax professionals can use many online services related to personal income taxes.

Injured or hurt in Massachusetts auto accident or a car crash involving MA drivers? There can be a good amount of detailed paperwork you are asked to fill out regarding your accident (as well as your wages, insurance, and injuries). Failure to correctly complete an auto accident report can certainly hurt your potential compensation rights in a personal injury case. If you go it alone, proceed with caution in preparing any early car accident reports or forms. Instead, it's highly recommended to obtain the assistance of a lawyer familiar with auto accidents and personal injury claims.

As an attorney working on motorcycle, bicycle, and auto crash cases, I counsel clients to always be clear and succinct in their written statements and reports. Oftentimes the less said, the better. It is unwise to quickly complete a form you do not fully understand. A simple mistaken statement or carelessly sketched diagram made following your accident can greatly harm, if not destroy, a serious personal injury case involving a motor vehicle accident.

The Massachusetts Motor Vehicle Crash Operators Report Download file is often the first form you may encounter after a motor vehicle accident (not, however, the only one to look out for which could torpedo your case). It is not uncommon for people to raise questions about this form with our lawyers or even to complete the auto accident form in our Weymouth office – or at a client's home or elsewhere when their injuries prevent someone from travelling to Weymouth to discuss their case.

I like to use an electronic version of the Massachusetts Motor Vehicle Crash Operators Report that allows us to fill in the form's blanks and to quickly make corrections when mistakes or misunderstandings occur. People generally find this approach is much better than starting from scratch and handwriting three copies of the same detailed report (as well as keeping at least one for your records too). Below are instructions on what is involved in completing a Massachusetts Operators Report:

Section A: Crash Location. Provide the city/town where the crash occurred, the date and time of the crash, and the number of vehicles involved. Complete section A1 or A2.Use official names of all locations, streets and landmarks. Use street name and route #, if applicable. Be as precise as possible when describing the location. Provide enough information to locate the crash to a specific point, not just a street or roadway.

Section B: Vehicle You Were Driving. Provide information on your license and the vehicle you were driving. Use the codes provided to indicate the cause of the crash.

Section C: You and Your Passengers. Provide information on you and your passengers at the time of the crash. Use the codes provided to indicate occupant information.

Section D: Other Vehicles Involved in the Crash
Provide information on the other vehicle(s) and operator(s) involved in the crash. If more than one vehicle involved, please use additional form completing Section D only.

Section E: Non-Motorist(s) Involved. Provide information on the non-motorist(s) involved in the crash. If more than one non-motorist involved, please use additional form completing Section E only.

Section F: Crash Conditions. Use the codes provided to indicate the conditions at the time of the crash.

Section G: Crash Diagram. Draw a diagram of how the crash occurred. On the diagram, Vehicle 1 represents your vehicle.

Section H: Witness Information. List all the people who saw the crash but were not involved.

Section I: Property Damage Information. Indicate all non-vehicular property that was damaged in the crash.

Section J: Description of What Happened. Describe the crash including events prior to the crash for your vehicles and all other vehicles.

Section K: Signature. Please sign and print your name and indicate the date you completed the form.

Once you get through the form, you are next told to: 1) mail or deliver one copy to your local police department in the city or town where the crash occurred, 2) mail one copy to your Insurance Company, and 3) mail one copy to the Registry of Motor Vehicles (RMV).

Your report is filled out regardless of whether the police were at the scene of your accident and they completed their own police report. The police report (even when you have a copy) is not a substitute for completing your Operator's Report following an accident. Clients generally take comfort in completing this form (as well as others involving insurance, wages, and medical records) with someone who will take the time to walk them through it and explain the significance of each question. It's also reassuring to leave a law office with confidence knowing that all of the final details and notices will be taken care of for you.

But beware; forewarned is forearmed. It's quite easy to lose your auto accident personal injury case without realizing it. Wherever you are in Eastern Massachusetts or the Greater Boston area (or down the street from our law office in Weymouth, MA), I recommend your find someone experienced you can trust to handle your personal injury case right from the start.

Massachusetts affordable housing projects under M.G.L. Ch. 40B are often criticized for limiting a local board’s powers to regulate development in a city or town. Proponents, on the other hand, argue the law helps promote new affordable housing developments. It is not uncommon for 40B projects to make headlines in local papers and for developers, municipalities, residents, and interest groups to be outspoken on this issue.

Regardless of one’s position on 40B, there are fundamental questions of power and legal authority that arise. Local boards and authorities are likely to applaud a recent SJC opinion concerning 40B and easements.

The Massachusetts Supreme Judicial Court (SJC) ruled the Housing Appeals Committee (Committee) of the Department of Housing and Community Development exceeded its authority under G.L. c. 40B (Affordable Housing Act) by ordering conveyance of a sight line easement on a town's property. This case establishes the Committee has the power to grant permits or approvals like a local board, but not the power to order the conveyance of an easement.

The opinion reasons, an easement is an interest in land which grants to one person the right to use or enjoy land owned by another; the grant of an easement constitutes the transfer of an interest in land; the fact that an easement may encumber only a small portion of an owner's land does not change its legal significance; and the Act does not authorize the Committee to order the conveyance of an easement over land abutting the project site of a proposed affordable housing development.

The SJC distinguished this decision from Board of Appeals of Maynard v. Housing Appeals Comm., 370 Mass. 64 (1976)>. The Maynard case involved the extension of a sewer line (under G.L. c. 83), for which the developer, and not the public, agreed to bear all costs – it did not involve, nor authorize, the transfer of an interest in municipal land in the form of a mandated easement.

See Slip Opinion: SJC-10028 until published, Zoning Board of Appeals of Groton & others vs. Housing Appeals Committee and another.