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Press Release
October 29, 2019

Meet the new BBA president: Sugarman Rogers’s managing partner Christine M. Netski

Published by the Boston Bar Association on October 25, 2019 (here). The importance of public service and academic excellence was instilled in Chris Netski at a young age while she was growing up in upstate New York. Both her parents were public educators and the first in their families to go to college. Her late father, a first-generation Polish-American who went to college under the G.I. Bill following service in World War II, understood the importance of equal opportunity and promoted diversity and inclusion throughout his career, including helping to lead the effort to integrate the public schools in their town in the late 1960s. Her parents’ commitment to their community and their positive influence on the lives of so many young people continue to inspire Netski today. “They inspired me to always be alert to how I might contribute to the betterment of our society, and they taught me…

Related Services: Employment Law, Business Disputes

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Terms of Use

By visiting and using this website, you are deemed to consent to the following terms of use. Do not use this site if you do not accept these terms. 1. Disclaimer. Please see our disclaimer here. 2. Availability and Changes. Sugarman Rogers reserves the right to make changes to all or any portion of this website, and to suspend, disable or discontinue all or any portion of the site, at any time, for any reason, and without notice. We also reserve the right to revise these terms of use at any time, for any reason, and without notice. 3. No Warranties; Limitation of Liability. This site is provided on an “as is” and “as available” basis. We do not guarantee the accuracy, completeness, timeliness, reliability, suitability or usefulness of any portion of the site. We do not guarantee that this site will be uninterrupted or error-free. We do not guarantee…

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Legal Update
March 31, 2020

Protecting your contractual rights in the wake of COVID-19

Retail stores, restaurants, and other commercial tenants are shut down.  Shipments of parts are delayed.  Long-planned vacations and wedding celebrations have been cancelled.  Childcare facilities and gyms are closed indefinitely.  From corporate boardrooms to kitchen tables, the economic impacts of the coronavirus (COVID-19) pandemic and the resultant lockdowns are impossible to ignore—to say nothing of its devastating public health impacts.  Among the myriad ways the virus has disrupted life in recent weeks, COVID-19 is wreaking unprecedented havoc on the performance of contractual agreements—from industrial to personal—raising thorny questions about who bears the costs when obligations aren’t met, and what remedies are available to parties who do not receive the benefit of their bargain. While the challenges presented by this pandemic may be unique, there are a number of established legal concepts that provide a framework for addressing these questions and determining the respective rights and obligations of companies and individuals…

Related Services: Business Disputes

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Legal Update
October 5, 2017

SJC takes broad view of constitutional protection of public parklands

The Massachusetts Supreme Judicial Court this week significantly expanded state constitutional protection for parks and other open public spaces. In doing so, the court came down on the side of conservationists in a common dispute with public officials over potential use of municipal land for public improvements, including roads and schools, but also including other newer uses of municipal open space, such as for wind turbines and solar arrays. The SJC ruled, in Smith v. City of Westfield, that the defendant city could not, without a super-majority vote of the state legislature, build an elementary school on city land that had long been used as a public park, even though no written restriction was ever recorded designating the land for protection under Article 97 of the Massachusetts constitution, the state’s “Environmental Bill of Rights.” Reversing a decision of the Appeals Court, the SJC held that no such recording in the…

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Legal Update
July 18, 2017

Employee fired for medical marijuana use can sue employer for discrimination

An employee who was terminated as a result of her lawful medical use of marijuana has the right to sue her former employer for handicap discrimination under Massachusetts law, the state Supreme Judicial Court has ruled. In the decision, Barbuto v. Advance Sales and Marketing, the court held that while the Massachusetts statute legalizing medical marijuana does not authorize private lawsuits to enforce the right to use the drug, prescribed marijuana users who suffer adverse employment actions as a result of their use of the drug can file suit under the state’s antidiscrimination law, Massachusetts General Laws chapter 151B. The plaintiff, Cristina Barbuto, had a valid prescription to use marijuana as treatment for her Crohn’s disease. When Barbuto was hired to an entry-level position by Advance Sales and Marketing (ASM) and told that she would have to take a drug test, Barbuto explained to her supervisor that she would test…

Related Services: Employment Law

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Legal Update
August 14, 2018

New Massachusetts non-compete law: Five things every employer should know

Massachusetts’ new non-compete statute represents a substantial shift in the enforceability of restrictive covenants in this state. Employers that utilize these types of agreements will be well-served to closely examine their existing agreements and, in the weeks ahead, make the necessary revisions to ensure their new agreements will comply with all upcoming changes to the law. Moreover, given the many areas of uncertainty in the new statute, employers should consult knowledgeable counsel to identify potential problem areas, minimize exposure, and safeguard company information and goodwill.

Related Services: Employment Law

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Legal Update
September 5, 2018

SJC extends the protection of the statute of repose to violations of the home improvement contractor law asserted under Chapter 93A

The Massachusetts Supreme Judicial Court has ruled that claims for unfair and deceptive acts against contractors under the state’s consumer protection act–Chapter 93A–where they are premised on a breach of the home improvement contractor law–Chapter 142A–must be brought within six years of completion of the project. This six year window is absolute, even where a consumer has no reason to suspect any wrongdoing, or where the defects have been intentionally concealed. The rare split decision, Bridgwood v. A.J. Wood Construction, Inc., is a significant win for the construction industry. And it is the first time that the SJC has held that the six year “statute of repose” that limits common law construction defect claims for negligence and breach of the implied warranty of habitability also limits claims under Chapter 93A alleging violations of the home improvement contractor law. The decision, authored by Justice Cypher, was not unanimous. A dissent, by…

Related Services: Real Estate Litigation

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Legal Update
July 13, 2018

Private land owner in Chapter 91 tidelands lacks authority to invoke the public trust doctrine to challenge validity of land-use restrictions

The Massachusetts Appeals Court has confirmed that private parties may not use litigation to seek enforcement of “public trust rights” in tidelands governed by M.G.L. c. 91 (“Chapter 91”) outside of the Chapter 91 licensing program. In its July 10, 2018 decision in Commercial Wharf East Condominium Assoc. v. Boston Boat Basin, LLC, the Appeals Court rejected a landowner’s claims that certain legal and contractual restrictions that had been placed upon its use of its waterfront marina property violated the public trust doctrine because they limited the public’s access to that property. At issue in this case was Boston Boat Basin’s marina on the seaward side of Commercial Wharf in Boston Harbor. The marina is accessible to the public only by way of an easement over the Commercial Wharf East Condominium Association’s (“CWCA”) property—which encompasses the landward portion of the wharf. The party that owned the land prior to Boston…

Related Services: Appellate Practice

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Legal Update
September 18, 2017

Harm from climate change is imminent —except when it is not

As the nation absorbs the tremendous scale of the damage caused by Hurricanes Harvey and Irma, a federal judge in Massachusetts this week kept alive a lawsuit charging that ExxonMobil has failed to adequately prepare an oil terminal in Everett Massachusetts to withstand storm surges, heavy rainfall and flooding. These are all effects that scientists warn will worsen and intensify with climate change. The succinct order, in Conservation Law Foundation v. ExxonMobil Corporation, permits CLF to seek a remedy against ExxonMobil for harms in what the court refers to as the “near future,” while barring litigation now over harm that may occur “far in the future.” The decision begs the question: Just what harms from climate change are sufficiently imminent to warrant granting judicial relief to litigants, and which are those that are “far in the future,” such that the courts should find that plaintiffs lack standing to sue? The…

Related Services: Environmental & Energy Law

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Case Report
December 21, 2011

Malpractice settlements for abused child reach $7.35 million

Partners David Barry and Tony Agudelo have obtained a settlement with the last of the defendants in a malpractice case on behalf of the estate of a severely abused child who eventually sustained a traumatic brain-stem injury that put her in a coma for several months, and left her permanently and deeply disabled. The settlements to date total $7.35 million and are being used to create a special-needs trust for the child's benefit. Having earlier reached settlement agreements with a number of medical providers--a pediatrician, a nurse-practitioner, a mental health center, a social worker, and a psychiatrist--who saw and treated the child (and, it was alleged, negligently failed to report clear signs of abuse, instead accepting other explanations for the child's injuries), the SRBC lawyers recently reached a settlement with the last remaining group of defendants, a provider of outpatient behavioral services and its two employees. Case Information The plaintiff is the Conservator of a minor…

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Legal Update
August 8, 2018

Mass. Appeals Court: The right to use a path to the beach does not imply a right to use the beach itself

Having previously secured their right to use a certain path to access the beach in Hickey v. Pathways Assn., Inc.¸ 472 Mass. 735 (2015), certain owners of inland subdivision lots in Dennis (“Inland Owners”) sought a ruling as to the scope of their rights to use the beach itself.  Specifically, the 69 Inland Owners claimed they had an easement to use the intertidal flats (the area of the beach between the high and low tide marks).  On review, in Loiselle v. Hickey, the Massachusetts Appeals Court recently affirmed the Land Court’s finding that the Inland Owners were unable to overcome the presumption that the owners of shoreland property seaward of the inland lots (“Shoreland Owners”) owned title to the disputed intertidal flats, and that the Inland Owners’ rights were limited to those enjoyed by the general public, namely fishing, fowling and navigation. As to ownership of intertidal flats generally, the…

Related Services: Real Estate Litigation

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Legal Update
February 15, 2012

Supreme Judicial Court awards $22.6 million in punitive damages for insurer’s settlement delays

The Massachusetts Supreme Judicial Court has once again emphasized the high stakes, under the state’s consumer-protection statute, for an insurer who delays in settling a clear-liability case and allows the matter to go to trial. In its February 10, 2012 decision in Rhodes v. AIG Domestic Claims, Inc., the Court awarded $22.6 million in punitive damages—plus attorneys’ fees, on top of the $11.8 million already recovered by the plaintiffs—against an insurance claims service, AIGDC,1 for unfairly and willfully delaying settlement of a clear-liability automobile-accident case. The Court applied language of the Massachusetts consumer-protection statute, Chapter 93A, and made the $22.6 million award despite acknowledging that the figure bore no relationship to any identifiable harm caused by AIGDC’s settlement delay. The case arose from a 2002 accident in which a tractor-trailer rear-ended a car driven by 46-year-old Marcia Rhodes, who had been stopped by a police officer directing traffic around a…

Related Services: Insurance & Reinsurance

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Legal Update
January 5, 2018

Massachusetts town cannot use local wetlands ordinance to block natural gas compressor station, federal court rules

A federal judge has ruled in favor of an energy company that seeks to build a natural-gas compressor station in Weymouth, Massachusetts as part of an interstate pipeline construction project. The ruling, in Algonquin Gas Transmission, LLC v. Weymouth Conservation Commission, concluded that a ruling by the Weymouth conservation commission blocking the station under a local wetlands-protection ordinance conflicted with the exclusive authority of the Federal Energy Regulatory Commission and was therefore preempted. This ruling is an important development in an increasingly hard-fought area of litigation over expansion of natural-gas pipelines in the Northeast and nationally. The Weymouth compressor station at issue in the case was proposed by Algonquin Gas Transmission, LLC, a recently acquired subsidiary of Enbridge, Inc., as part of its “Atlantic Bridge Project,” a plan to expand natural-gas pipelines and related facilities serving the Northeast and Canada. (Enbridge’s marketing page for the Atlantic Bridge Project is here.)…

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Legal Update
January 11, 2018

First Circuit upholds dismissal of Westport case against Monsanto, agreeing there is insufficient evidence chemical company should have known PCBs in construction caulk might require remediation

The First Circuit federal appellate court has affirmed a lower court’s dismissal of a lawsuit by the Town of Westport against the chemical giant Monsanto and related entities, ruling that the company could not have foreseen, in 1969, that PCBs it sold to manufacturers of caulk could volatilize at levels harmful to humans, in uses such as the construction of a town school in Westport. The decision, in Town of Westport v. Monsanto Company, also is likely to lead to dismissal of a parallel lawsuit against Monsanto by the Town of Princeton, also pending in federal court. A third federal suit against Monsanto, brought by the Town of Lexington, was dismissed in 2015. All three towns were seeking to recover the costs of remediating the PCB-containing caulks in their school buildings. The fate of the three school cases illustrates the multitude of challenges in seeking to hold Monsanto itself liable…

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Legal Update
September 7, 2018

SJC upholds greenhouse gas emission limits on Massachusetts power plants

The Supreme Judicial Court has rejected a challenge to regulations that impose annually declining limits on greenhouse gas emissions for power plants located in Massachusetts. The decision, in New England Power Generators Association, Inc. v. Department of Environmental Protection, upholds Department of Environmental Protection regulations that require in-state fossil-fueled power plants to reduce their carbon dioxide emissions annually, and require MassDEP to adopt additional regulations to continue reducing emissions after 2020.  The decision reflects a continued willingness by the SJC to support significant legislative and regulatory efforts to address the impacts of climate change under the state’s Global Warming Solutions Act (GWSA). Said the SJC, the GWSA “is designed to go well beyond business as usual in terms of reducing emissions: to upend, rather than to uphold, the status quo.” Kain and the Cap Regulations The regulations at issue in NEPG are among those enacted in response to the SJC’s…

Related Services: Environmental & Energy Law

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Ed Barshak – Honoring a lifelong leader

(This article originally appeared on the Boston Bar Association website. Reprinted here with permission.) The Boston Bar Association will honor Edward Barshak with its Lifetime Achievement Award on September 12 at the 2014 Annual Meeting Luncheon. A leader isn’t always the first one to speak up. A true leader exhibits command of speech so that when they do speak, their words carry weight. As we interviewed Boston’s most respected advocates and citizens for this profile, one phrase resonated among countless sound bites. “When Barshak speaks, everybody listens.” From Fitchburg’s Finest to One of Boston’s Best When he joined Mapplebeck, Alberts & Sugarman in 1957, Fitchburg native Edward J. Barshak had already carved out a reputation as one of Boston’s most promising trial attorneys. As the fifth attorney at what would later become Sugarman, Rogers, Barshak & Cohen, Ed set to work building what would soon become Boston’s top tier civil…

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Legal Update
April 11, 2018

Client who lost lawsuit after misleading buyers of plumbing business had valid malpractice claim against overconfident lawyers

A Massachusetts Superior Court judge has refused to dismiss a legal-malpractice claim against two lawyers who unsuccessfully defended a lawsuit arising from the sale of a plumbing business. In that suit, having turned down a pre-trial settlement for $700,000, the client was forced to settle after trial by paying $1.6 million. While the client’s unhappiness with that result (after having spent $600,000 in legal fees) is hardly surprising, the decision that the malpractice case should continue is difficult to reconcile with governing law on the limits of a litigation lawyer’s duties in counseling about litigation risks. The case, Donarumo v. Phillips, began with client Andrew Donarumo’s sale of his plumbing business to Michael and JoAnn Furlong for $1,000,000. In discussions leading up to the sale, Donarumo told the Furlongs, who had limited relevant business experience, that the plumbing company was in good health and could be run by its remaining…

Related Services: Professional Liability

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Legal Update
June 14, 2018

Flying a drone over land and separately entering another’s property to shoot video insufficient to support a harassment order

In one of the first appellate cases where the plaintiff claims to have been harassed by the defendant’s use of a drone, the Appeals Court has held that drone use and videotaping of property, while “nettlesome” and perhaps “disruptive,” could not justify the issuance of a harassment prevention order under G.L. c. 258E.  The case, F.W.T. v. F.T., 2017-P-790, clarifies that typical drone use, such as flying it over another’s property and videotaping property is an insufficient legal basis to obtain a harassment prevention order.  In vacating the Trial Court order against the defendant, the Appeals Court left open the question whether a drone could be used in a more intrusive manner that would satisfy the statutory requirements. The standard used to evaluate applications for harassment orders under c. 258E is well established under Massachusetts law.  The plaintiff must demonstrate by a preponderance of the evidence that the defendant committed…

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Legal Update
July 24, 2018

Sixth and Second Circuits find coverage for social engineering fraud scams

Two federal appeals courts have recently issued opinions in key social engineering fraud coverage cases, in both instances finding that the policies in question provided coverage for the insureds’ losses. The decisions stand in contrast to certain earlier cases, including one from the Fifth Circuit, in which no coverage was found for similar types of scams. In American Tooling Center v. Travelers Cas. & Sur. Co. of America, 2018 WL 3404708 (6th Cir., July 13, 2018), the Sixth Circuit reviewed whether there was “computer fraud” coverage for a spoofed e-mail scheme in which thieves impersonated one of the insured’s overseas vendors in order to divert vendor payments. The insured, a tool and die manufacturer, outsourced some of its work to a Chinese company, which periodically invoiced the insured via e-mail. Cybercriminals were able to intercept e-mails between the insured and the vendor and began to e-mail the insured, posing as…

Related Services: Insurance & Reinsurance

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Publication
October 11, 2017

The intersection of environmental justice and climate change

This piece was originally published in the blog of the American College of Environmental Lawyers, here. Media images of the recent devastation from Hurricanes Harvey and Irma provide vivid illustration of the direct link between climate change and environmental justice (“EJ”) concerns.  For those who live in the path of tropical storms, the impacts of severe storm damage often have a disproportionately harsh effect upon low-income, minority, non-native English-speaking communities.  Members of these communities are often the least able to get out of harm’s way and find temporary living accommodations in a safer place.  They tend to live in sub-standard housing stock that is the least able to withstand the impacts of storm surges and extreme wind forces.  Frequently, their homes are disproportionately located in close proximity to clusters of known environmental hazards such as Superfund sites, hazardous waste TSDFs, chemical and power plants, other locally undesirable land uses (“LULUs”),…

Related Services: Environmental & Energy Law

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Press Release
August 17, 2020

In Memoriam: Edward J. Barshak
May 21, 1924 – August 12, 2020

  The Boston legal community has lost one of its finest. Edward J. Barshak passed away peacefully on August 12, 2020, at age 96. For more than five decades as one of our founding partners, Ed was an icon of the trial bar and a fearless defender of civil rights. As a young lawyer, he courageously represented lawyers charged with engaging in communist activities during the McCarthy investigations and achieved the groundbreaking SJC ruling in Brown v. Commonwealth, 335 Mass. 476 (1957), recognizing a right to counsel for criminal defendants under the Massachusetts constitution – six years before the US Supreme Court’s decision in Gideon v. Wainwright. He later represented Mitchell Goodman in the now-famous federal prosecution against Dr. Benjamin Spock, Goodman, and three other co-defendants for advocating resistance to the Vietnam-War draft, culminating in the 1969 First Circuit decision vacating their convictions. In her book about the Spock trial,…

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Legal Update
September 4, 2013

Malpractice insurance coverage for lawyers caught in check scams

The New Hampshire federal district court recently joined a growing handful of courts to consider whether a lawyer who unwittingly falls for a common type of e-mail scam can obtain coverage under his professional liability policy to restore money taken by the scammer.1 The New Hampshire court held that under the particular language of the policy before it, the lawyer was not entitled to coverage. The case is now on appeal to the First Circuit. Other courts have split on this issue. The outcome in such cases, it has become clear, depends in part on variations in key language between different lawyer’s policies. The scam at issue in the cases originates with a familiar kind of solicitation e-mail. A scammer purporting to be an overseas business e-mails to ask for the lawyer’s help in a collection matter involving a customer in the lawyer’s state. If the lawyer agrees, the scammer…

Related Services: Professional Liability

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Legal Update
April 2, 2020

Department of Labor publishes additional guidance on the Families First Coronavirus Response Act

With the Families First Coronavirus Response Act (“FFCRA”) effective on April 1, 2020, the U.S. Department of Labor (“DOL”) has issued a new round of guidance on the FFCRA in the form of FFCRA Q&A. DOL’s Updated FFCRA Q&A The DOL’s previously published FFCRA guidance was discussed by Sugarman Rogers here.  The updated FFCRA: Questions and Answers address a wide range of new issues.  Below are a few of the key takeaways: Intermittent Leave for Teleworking Employees is Allowed: Teleworking employees unable to work their normal schedule of work hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act may take paid sick leave intermittently if the employer and employee agree.   Similarly, if a teleworking employee needs to care for a child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, the employee may take…

Related Services: Employment Law

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Legal Update
September 25, 2017

Are state law public nuisance suits over global warming in Massachusetts’ future?

Last week the cities of San Francisco and Oakland followed three other coastal California communities in filing lawsuits against the largest investor-owned fossil fuel companies, seeking to force them to create an “abatement fund” to pay for infrastructure costs—allegedly in the billions of dollars—the cities say they will incur to respond to sea level rise, storm surges and other effects of global warming. The lawsuits, which follow suits recently filed by Imperial Beach and by San Mateo and Marin counties, name as defendants BP, ExxonMobil, Chevron, and Shell, among others. The suits allege that the companies have long understood that the use of the fossil fuels they extract, refine, market, and deliver would drastically change the earth’s climate. With Massachusetts’ coastal communities also facing billions of dollars in infrastructure, adaptation, and resiliency costs, are similar lawsuits in the Bay State soon to follow? The main legal theory in the California…

Practice Area

Environmental & Energy Law

Environmental and energy-related challenges affect our clients in many contexts and in a rapidly changing legal landscape. Our Environmental & Energy Law practice group focuses on providing outstanding client service, sound strategic advice and innovative solutions, and high-quality representation in environmental and energy litigation and administrative proceedings of all kinds.  Our work is driven by our clients’ specific goals. Often our services involve traditional areas of environmental law, such as hazardous waste site cleanups, response cost recovery actions and related environmental insurance claims, facility siting proceedings, administrative appeals and litigation involving air, water, wetlands, waterways, or endangered species regulations, and environmental enforcement matters. Increasingly our work also involves developing law in emerging fields concerning climate change, greenhouse gas regulations, the delivery of renewable energy, and the environmental impacts of all kinds of energy infrastructure and transportation systems. Recognizing that achieving our clients’ objectives on complex matters often demands a team…

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Legal Update
June 4, 2018

Minority LLC member is entitled to equitable remedies for majority member’s breach of fiduciary duties in freeze-out merger

Majority members of a limited liability company cannot rely upon the “exclusive remedy” provision in the Massachusetts Limited Liability Company statute (M.G.L. c. 156C) to prevent minority members from recovering certain equitable remedies in cases where the majority has breached its fiduciary duties to accomplish a merger that the minority opposed, according to the Supreme Judicial Court’s recent decision in W. Robert Allison v. Elof Eriksson. Indeed, the SJC held that trial courts have discretion to fashion equitable relief for minority LLC members wrongfully “frozen out” by majority members seeking to consolidate their control through mergers. Such relief may include rescission of the merger or, more commonly, modification of the new entity’s operating agreement to provide greater minority member protections. Here, Robert Allison and Elof Eriksson were the founders and sole members of Applied Tissue Technologies (ATT-MA), a Massachusetts LLC. Eriksson controlled roughly 75% of the company and Allison controlled…

Related Services: Business Disputes

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Legal Update
July 26, 2017

Operating agreement and alleged “covert” representation held sufficient to support minority shareholders’ claims against corporate lawyers

The Massachusetts Appeals Court has reinstated a lawsuit brought by minority shareholders in a closely held medical-technology company against lawyers for the company at WilmerHale and another firm, holding that even though the shareholders had no contact with the lawyers and never relied on their advice or services, they could still sue the lawyers for their role in a scheme to alter the company’s structure. In the July 21 decision (Baker v. Wilmer Cutler Pickering Hale & Dorr LLP), the Appeals Court rejected—at least preliminarily—the lower court’s application of a number of established principles that normally limit the scope of an organizational lawyer’s duties to non-clients, suggesting that under the particular circumstances alleged in this case, the limiting principles may not apply. In simple outline, Robert Allison and Elof Eriksson formed a company to market and sell wound-healing technology that Eriksson had invented. Allison had a 25% interest in the…

Related Services: Professional Liability

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Remote Access for Employees

The firm offers a variety of access points for remote access to resources. The preferred methods are either using your firm-issued laptop, or the remote desktop service, as these provide a more complete remote working experience. Individual services are accessible directly as well, and links have been provided below. VPN (for laptop users) Remote Desktop (remote access to virtual desktop) https://remote.srbc.com Outlook Web Access (email) https://outlook.com/sugarmanrogers.com Mimecast Personal Portal (manage messages on hold and backup access to recent mail in the event of a Microsoft outage) https://webmail-us.mimecast.com/ NetDocuments (document management system) https://vault.netvoyage.com/ Rippe LMS+ (time & billing) https://sugarmanrogers.rippe.com/ iTimeKeep (time entry) https://services.bellefieldcloud.com/newdesktop/#/login Rippe LMSV (for admin/billing) https://lms.rippecloud.com/rdweb Nextpoint (litigation support/document review and productions) https://sugarman-rogers-barshak-cohen.nextpoint.com/login LoopUp (conference calls) https://account.loopup.com/

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