Issue November/December 2018

November 2018

Cardinal change does not set aside waiver of consequential damages

When development and construction projects hit major disputes, counsel often must assess the recoverability of consequential or delay damages at the outset. Waivers of consequential and delay damages are now commonplace in construction contracts and are generally enforceable under Massachusetts law. See Costa v. Brait Builders Corp., 463 Mass. 65, 78 (2012); G.L. c. 30 § 39O. In high-stakes cases, parties may expend considerable resources researching exceptions and attempting to correspondingly construe facts. Theories to set aside waivers of damages excite both the creative lawyer and the damaged client.

Divorce Mediation 101: Musings and Meditations

I have learned that, no matter what thorny issues come up in the middle of a divorce mediation, if the parties are talking, then my best course of action is generally to sit back, listen and stay focused on guiding the parties through the issues. Although no one divorce is exactly like another, there are certain situations and quandaries that the divorce mediator may eventually encounter or reflect on. Below are some common examples.

The diminished utility of anti-SLAPP motions

Massachusetts’ so-called “anti-SLAPP” statute, G.L. c. 231, § 59H, presents a constitutional puzzle. The statute bars strategic litigation against public participation (SLAPP), i.e., a claim or “lawsuit[] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Before the Supreme Judicial Court’s decision in Blanchard v. Steward Carney Hospital Inc., 441 Mass. 141 (2017), the statute required a court, on motion, to dismiss claims that the moving party demonstrated were “based on” petitioning activity, unless the non-moving party proved that the petitioning activity underlying the claim was a “sham,” i.e., “devoid of any reasonable factual support or any arguable basis in law,” and caused harm to the non-moving party. This was the framework adopted by the SJC in Duracraft v. Holmes Prods. Corp., 427 Mass. 156 (1998). As the SJC has long acknowledged, however, that valid petitioning activity can cause harm, too. In such a case, the injured party’s constitutional right to seek redress in the courts is no less important than the constitutional rights of the petitioning party.

Massachusetts’ new non-compete law: An overview

After years of fitful attempts, the Massachusetts Legislature finally passed a bill regulating non-compete agreements. Gov. Charlie Baker signed the “Act relative to the judicial enforcement of noncompetition agreements” (MGL c. 149, § 24L) on Aug. 10, 2018, and it took effect on Oct. 1, 2018. The act ushers in a new era in the enforcement of non-competes, and is likely to cause some misunderstandings (and a host of litigation) as employers and employees adjust. This article highlights the most important aspects of the new law.

So you think you’re divorced: Evaluating the consequences of foreign divorces in immigration processes

Divorce is tricky. For most, divorce is a trying time rife with emotions and controversy. In a typical divorce, there are several issues to be decided: child custody, support, alimony, division of assets and debts. For some, there are far deeper issues to be considered, including whether the divorce is valid for purposes of future immigration proceedings.