Massachusetts Lawyer Blog

Massachusetts laws prohibiting discrimination against people with disabilities in Massachusetts disability cases, arising under Federal and MA Discrimination laws, may have different meanings in different contexts.

If you are being discriminated against due to a disability or perceived disability there may be a number of legal claims for you to consider to aid in protecting your rights.The enforcement of disability discrimination laws can involve different courts or commissions and may require various types of expert evidence and testimony.

The MA Disability Law Center offers a chart on Massachusetts laws prohibiting discrimination against people with disabilities and provides some examples of legal resources which may be available as a starting place.

Attorney John Parry has authored the book, Disability Discrimination Law, Evidence and Testimony. A Comprehensive Reference Manual for Lawyers, Judges and Disability Professionals, which covers a host of topics your lawyer or disability advocate may consider in handling your disability discrimination case.

Additionally, The Massachusetts Office on Disability (MOD) has prepared an online pamphlet to:

increase awareness of the rights of persons with disabilities, both by persons with disabilities themselves and by the larger community. Other goals of the Office include: the elimination of discrimination against persons with disabilities; the creation of a barrier free environment; the improvement of the state’s services delivery system for persons with disabilities, and the creation of fully integrated and accessible education, housing, transportation and employment in the public and private sectors.

Topics listed include:

• INTRODUCTION
• ABUSE / NEGLECT / TREATMENT CONDITIONS
• ARCHITECTURAL ACCESS
• AUTOMOBILES & TRANSPORTATION
• DISABILITY COMMISSIONS
• EDUCATION
• EMPLOYMENT
• EQUAL RIGHTS
• HATE CRIMES
• HOUSING
• PUBLIC PLACES & PROGRAMS
• SERVICE ANIMALS
• TELECOMMUNICATION AND TECHNOLOGY
• VOTING
• WHEELCHAIRS
• ZONING

Attorney Kevin Whitaker serves as a town councilor and as an appointed member of the Town of Weymouth, MA Commission on Disabilities.

Boston.com article, "Mass. woman kills self before home foreclosure," reports:

A 53-year-old wife and mother fatally shot herself shortly after faxing a letter to her mortgage company saying that by the time they foreclosed on her house that day, she would be dead.

According the the article, her husband did not know the foreclosure was scheduled today because his wife took care of the bills and mail.  The article also indicates the woman may have thought that life insurance proceeds could be used to pay for the home -- this isn't true.  No life insurance company that I'm aware of is going to pay any amount of an insurance policy for a suicide claim.  Let me be clear, suicide in not a solution.  This tragedy does, however, speak to the problem being faced by many -- times are financially tough and many people don't know what to do.

I'm seeing more despair and anxiety in my Weymouth law office with both new and old clients.  Often I'm meeting with distressed individuals, families, and business owners who break down in tears as they tell their story.  Many are relieved just by talking to someone or by getting their problems off their chest.  Later, when they learn alternatives to bankruptcy and foreclosure may exist for them, they ask, "Why didn't I do this sooner?"

If you are feeling overwhelmed by debt, the harassing phone calls, and threatening letters, then you need to seek help. You deserve the opportunity to explore all of your available options and to do so with an objective adviser.  There should be no guilt, or shame, or judgment associated with doing this.  Getting help is the responsible thing to do and it can often put you on the path toward a fresh start.  A new beginning without the burden and distraction of constant worry and anxiety could be right in front of you without you even knowing it.

Do you submit confidential documents to the U.S. Equal Employment Opportunity Commission (EEOC)?

David A. Skidmore, Jr. and William F. Becker in a Frost Brown Todd LLC Client Advisory, "Take care when providing proprietary or confidential information to the EEOC", discuss issues a company should consider when making an EEOC filing. Their article follows from their reading of Venetian Casino Resort, L.L.C. v. EEOC, decided June 27, 2008, the D.C. Circuit Court of Appeals:

First, employers should not submit information assuming that it will be treated by the EEOC as confidential. Second, if sensitive information is submitted to the EEOC, just labeling it “confidential” may not be enough to assure that the EEOC will provide notice before disclosing the information to anyone who asks for it. The Court of Appeals specifically stated that “. . . disclosure of information does not violate the [Trade Secrets Act] merely because that information was labeled ‘confidential’ by the submitter.”

At a minimum, confidential information submitted to the EEOC should include prominent notice that it is confidential, an explanation of how disclosure would cause “substantial harm to your company’s competitive position,” and a request that notice be given before the information is disclosed in response to a FOIA request.

Do you know what's being said about you on the internet? Whether you're a Massachusetts small business owner, an individual, or a parent, are you monitoring the conversations about you, your business, or your family taking place on the internet?

Check out What Should Every Company Be Monitoring? for a list of ideas.

You can't respond to what you don't know about. I use alerts and RSS feeds to help stay on top of issues and conversations involving our Weymouth, MA law firm and our Massachusetts clients. With more and more reputation attacks and defamation cases arising on the internet (as well as speculative and plainly erroneous information), this is likely to be growth area in law and business.

An ABA Journal Article, "Former Law Dean Obtains Internet Addresses of Anonymous Online Critics", is a reminder that what one anonymously writes on the internet may not be anonymous.

Could your blog, comments, or other online postings land you in the middle of a defamation suit? Or raise the possibility of an interference with business relations claim? Are you anonymously mentioning competitors or promoting your services in a manner that could be seen as unfair competition or as violations of consumer protection laws?

Things to consider before making "anonymous" postings or contributions. In the alternative, this is also a means to seek protection when you, your business, or your children are the targets of anonymous online attacks.

This morning my daughter suggested we take the net (from that game where you hit the thing that looks like an empty ice cream cone) and use it to play volleyball.  I knew immediately she was talking about the net from the old badminton set because the "empty ice cream cone" was certainly the birdie we hit back and forth about a month ago.  In communication and in law context is everything -- both combined can lead to real value.

You shouldn't need to talk in legal mumbo jumbo to get your point across or to achieve the result you desire.  Find a lawyer who knows the law but also gets where you are coming from.  Seek out an attorney who will invest in building a relationship with you.  This is the foundation for providing value -- a real value that seeks to first understand and then meet your needs.  Anything else is just an empty ice cream cone...

In Blank Rome's Newsletter, Ninth Circuit Ruling Raises Stakes for Companies and Individuals Facing Parallel Civil and Criminal Investigations By: Matthew D. Lee and Tyler Brody, they discuss issues raised in a case were a civil governmental investigation was being coordinated with criminal investigations, United States v. Stringer, 521 F.3d 499 (9th Cir. 2008) Download Case.

The criminal investigations were slowed down and not overtly acted upon so the civil investigation could proceed and obtain statements which would not likely to be provided in a criminal case.  Here, the civil and criminal activities were closely coordinated and the civil investigators were even instructed on how to ask questions in depositions to help build the government's criminal case.  When the target's attorney asked about the possibility of a criminal investigation, despite knowing in was ongoing, the civil investigation did not need to disclose this fact when an SEC Form 1662 was provided which makes a blanket statement that information collected may be shared with other governmental agencies.

The Blank Rome article states:

The impact of the Stringer decision on how counsel should approach the defense of a civil investigation cannot be under - stated. Defense attorneys must be aware that their clients can potentially, and unknowingly, waive their Fifth Amendment rights after they are given minimal notice by civil investigators. Thus, even if a government investigation appears to be merely civil in nature, an astute defense attorney must anticipate the possibility that the civil attorneys are working with, or taking direction from, prosecutors seeking to build a criminal case. Counsel also must realize that, simply because the existence of criminal investigation is not readily apparent, does not mean that one is not underway, especially if their clients are cooperating with civil investigators. Indeed, Stringer allows criminal and civil investigators to conceal a significant amount of collaboration and joint strategic planning without triggering concerns that the government is acting in bad faith.

They conclude:

The Stringer decision shows that defense counsel should handle the defense of a client subject to a civil investigation as though it were criminal, and strongly consider the extent to which their clients should be cooperating with government lawyers, particularly where the lawyer knows that the client may have criminal exposure. Because the result of Stringer affords government lawyers so much leeway in using evidence collected in a civil investigation to build a criminal case, counsel must be careful not to allow their clients to supply the government with the proverbial rope with which they will ultimately be hung.

A Boston Business Journal article lists the , Top 10 Mistakes Businesspeople Make when Forming Partnerships (see the full article for explanations of each.)

1. Not having a signed partnership agreement. 2. Not having an attorney assist with drawing up the agreement. 3. Not including a way out. 4. Not using your individual strengths. 5. Not forming a limited partnership. 6. Not considering the liability issues. 7. Rushing in. 8. Not adhering to state requirements and regulations. 9. Choosing the wrong partner. 10. Not adequately capitalizing the partnership.

This is a good list to review if you are thinking about a forming a partnership in Massachusetts. Any one these could be fatal to a business.

A recent Massachusetts Superior Court decision shows some of the complex issues that can be raised in tenancy agreements.  This particular case involved a commercial lease, but a review of the areas covered provides general insight into leases and agreements whether you are a consumer, a business, lessor, lessee, owner, tenant, guarantor, or landlord.

Seven Issues To Consider in Lease Agreements & Tenancy Litigation

1. Fraud in the Inducement - To establish fraud in the inducement you must show misrepresentation of a material fact, made to induce action, and reasonable reliance on the false statements to the detriment of the person relying.
2. Chapter 93A - General Laws c. 93A, § 2 makes unlawful all unfair or deceptive acts or practices in the conduct of any trade or commerce. Conduct is deceptive if it possesses a tendency to deceive -- could reasonably have caused a person to act differently than he or she would have.
3. Breach of Contract & Integration Clause - When an agreement, such as a lease, is unambiguous and contains an integration clause, a party to the lease may not rely on evidence extraneous to the four corners of the lease to claim rights under the lease.  The contract will be enforced according to its express terms.
4. Quantum meruit - A theory of recovery based on unjust enrichment.
5. Implied Covenant of Good Faith and Fair Dealing - Contracts are subject to an implied covenant of good faith and fair dealing.  A party may not appeal to the covenant, however, to create rights and duties not otherwise provided for in the existing contractual relationship.
6. Negligence - Where a contract has a valid integration clause, claims of negligent misrepresentation are barred.
7. Rescission - Without a viable claim for breach of a lease agreement, a claim for rescission based on breach of the lease agreement must fail.

(NOTE: I've cut and pasted language in the decision, changed sentence structure here and there, changed some words around, and removed all legal citations to focus on the general nature of these issues.  I also added links to general information, not MA law.  The full decision which is much better than my piecemeal approach is available in Middlesex Superior Court Civil Action No. 07-3147.)

Contract Lesson: Be careful of any representations being made and review what's in (and what's not in) your tenancy agreement.

The United States Supreme Court has been active on the employment front this term. Previous posts discussed some of these cases, but the newest ruling (Meacham ET AL v. Knolls Atomic Power Laboratory, AKA KAPL, Inc., ET AL.) takes up a disparate-impact
claim under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq.

The company reduced its work force by having managers score subordinates on “performance,” “flexibility,” and “critical skills”; these scores, along with points for years of service, were used to determine who was laid off. Of the 31 employees let go, 30 were at least 40 years old and a ADEA claim followed.

The holding in this case places the burden of proof on employers when the termination involves an an older worker. This creates additional issues an employer must be prepared to prove. Here the employer must prove the termination was based on reasonable factors other than age (RFOA) by:

1) Producing evidence affirmatively raising the defense, and

2) Persuading the factfinder of the merits of this defense.

The case creates important considerations for both employers and employees in considering an ADEA claim. The result will certainly create additional costs for businesses but is being hailed as a victory for elder law advocates.

Recently, Boston.com listed the Globe 100, The Best of Massachusetts Business 2008.

While its nice to be on that list and certainly good for the local economy. I personally like the local success stories conveyed by this young man in a picture sent to me from a relative in CA.

For those in other parts of the country who may not understand the local meaning of "parades," please allow me to explain:

As pointed out in a USA Today's blog entitled, Nothing common about Boston's recent title tradition, "This makes six major professional sports titles in three sports in the past 6½ years for Boston."

For those still counting: 3 Patriots Super Bowl wins, 2 Red Sox World Series wins, and this Celtics NBA Finals win. At Christmas time we sing and add, "And a partridge in a pear tree."

It sure is nice to have bragging rights, huh? And it's good business too. How could any top 100 Massachusetts Business List not include the companies behind these local success stories?

For those looking for more pictures of Boston Celtics fans check out Boston.com's Celtics Fans Photos.

A recent law firm survey of 100 corporate clients indicated 53 percent of respondents "had a negative outlook on the economy" with 31 percent considering a "recessionary economy" to be the biggest threat.

Whether from Boston, Weymouth, Cape Cod, or elsewhere in MA, anecdotal evidence from talking with attorneys, accountants, and Massachusetts business owners confirms the same.  As a result, Massachusetts small business owners and family businesses are now taking pause and seeking ways to help them protect their assets, both personal and business.

If you have concerns, here are some questions you should be considering today:

• Have you been too busy growing or focusing on your businesses and not made the time to protect your home and family assets?
• Are you conducting risky business in business entities that may not limit your liabilities?
• Are personal guarantees placing your family's assets at risk?
• Do you own companies and assets under one umbrella, possibly exposing everything to liability when an issue arises?

This is my advice whether you are just starting a business or are an existing business owner with liability concerns:

First, take an inventory of your personal assets and personal liability exposures.

Second, take proactive steps to protect yourself and your family.

Third, reduce business liability issues with proper planning and by making use of ordinary and creative options.

While insurance and accounting practices are good steps toward your goals, adding a combination of legal protections with these is a more powerful approach.  Don't wait until you get knocked down and it's too late to take advantage of all your options.  Begin taking stronger strides towards keeping what you have protected, especially while weathering fluctuations in an uncertain or even a recessionary economy.

In this instance it is far better to take arms against a sea of troubles, and by opposing end them...

Erik J. Heels (described as "an MIT engineer, patent and trademark lawyer, Red Sox fan, and music lover) offers a simple visual concerning copyright law in his blog post a Drawing That Explains Copyright Law .

He states:

My drawing could be better. And my explanation could be better. But again, I drew this for a child, so it's a good place to start. The main point is that there are three classes of uses: unregulated, fair use, and protected.

Sometimes a picture can be worth one thousand words...

The U.S. Environmental Protection Agency (EPA) has released its 2008 Report on the Environment.

The document is public resource to enable understanding of trends and challenges to quality in air, water, land and human health. It seeks to measure progress toward protecting the environment and human health by providing data relevant to planning.

The EPA’s website states,

To accomplish its mission to protect human health and the environment, the U.S. Environmental Protection Agency (EPA) must pay close attention to trends in the condition of the nation’s air, water, and land, as well as related trends in human health and ecological systems. To meet this needs, EPA embarked on a bold initiative in 2001 to assemble, for the first time, the most reliable available indicators of national environmental and health conditions and trends that are important to EPA’s mission. EPA initially presented these indicators in its Draft Report on the Environment (ROE) Technical Document (TD), and its publicly oriented companion document the Draft Report on the Environment (ROE), both released in 2003. Since then, EPA has revised, updated, and refined the ROE in response to scientific developments, as well as feedback from EPA’s Scientific Advisory Board (SAB) and stakeholders. As a result, the EPA's 2008 Report on the Environment provides both an update and an improvement over the 2003 draft editions.

List of Regions for Regional Indicator Reports

Region One Indicators Report (Includes Massachusetts).

While not specific to Massachusetts, a recent AAJ Law News Digest (by email, June 5, 2008) cited three articles illustrating interesting developments in arbitration and law, as well as an interesting poll.

Costs vs. Benefits in Arbitration

In No Room for Error in Arbitration?, Thomas E.L. Dewey and Kara Siegel, New York Law Journal, June 03, 2008, write:

Arbitration of commercial disputes has become increasingly common, due in part to the widely held perception that arbitration is a less expensive and more expeditious method of dispute resolution. Recent court decisions, however, have underscored the fact that those perceived benefits come at a price: the U.S. Supreme Court ruled in April that parties cannot agree to a higher standard of judicial review of arbitration awards, and appeared to question the validity of a long-standing doctrine that does permit courts to overturn arbitration awards that are in "manifest disregard" of the law. The net result: parties who agree to arbitrate their disputes should understand that it will be very difficult to obtain relief from an erroneous arbitration award.

Franchise Concerns in Arbitration

In Pressure Grows to Rethink the Use Of Mandatory-Arbitration Clauses By Richard Gibson, he states:

Most franchise contracts once called for mandatory arbitration of issues, rather than going to court. But these days there is growing pressure -- from franchisees, judges, Congress and even some franchisers -- to rethink that longstanding arrangement. 'The trend toward arbitration has pretty much ended,' says Peter Lagarias, a franchisees' attorney in San Rafael, Calif. Among the concerns is that there is no guaranteed right of appeal. 'You have to take what the arbitrator decides,' says Joshua Becker, an in-house counsel for fast-food franchiser Kahala Corp. For that reason, he says, Kahala, whose brands include Blimpie submarine sandwiches and TacoTime, favors resolving issues with franchisees in court."

Doctors Not Treating Patients without Arbitration

The Tampa Tribune Editorial, New 'Hello' In Health Care: Sign Here Not To Sue, states:

"It's not uncommon today for a woman visiting her gynecologist to give up her right to sue if something goes wrong. The doctor simply won't treat her unless she agrees to take any potential claim to an arbitration panel rather than the courts. The same goes for many acute-care hospitals and nursing homes, where stressed-out families with little choice are handed 60-odd pages of documents to sign. Sandwiched near the end, the mandatory-arbitration agreement gets the briefest of explanations. Binding arbitration - not health precautions and explanations - is the new 'hello' in health care. It's a physician's answer to the threat of litigation and the high cost of malpractice insurance. Like some trial lawyers who have convinced clients to sign away their constitutional rights to limited legal fees, doctors are getting patients to sign away their constitutional right to sue, too. This troubling new practice is a barrier to the doctor-patient relati onship, akin to signing a pre-nuptial agreement before getting married. The practice is a form of blackmail: Sign it or get out."

Consumer Poll Results on Arbitration

The AAJ on their webites provide the article, New Poll: Americans Say “No Thanks” To Binding Arbitration:

Washington, DC—Americans generally disapprove of binding arbitration provisions in consumer contracts as an alternative to civil legal proceedings involving a judge or jury, according to a recent national poll by survey firm Peter D. Hart Research Associates Inc.

“Mandatory binding arbitration doesn’t give consumers a choice,” said American Association for Justice President Kathleen Flynn Peterson. “This poll proves that when asked to choose, consumers overwhelmingly say ‘no thanks’ to unfair arbitration agreements. Arbitration can only be a valid and effective method of resolving disputes when both parties agree voluntarily.”

Consumers are sometimes required to sign a contract with a company when purchasing products or services ranging from cell phones to nursing home care. These contracts often include a binding arbitration provision which states the consumer agrees to have any dispute with the company decided by an arbitrator, rather than by a judge or jury in a civil legal proceeding.

Binding arbitration has even been enforced in nursing home deaths. Massachusetts resident John Donahue suffered an eye injury so severe that it required removal of his eye while under the care of a nursing home. The infection caused by his injury eventually led to his death. When his daughte