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On February 6, 2013, commemorating the 20th anniversary of the Family and Medical Leave Act ("FMLA"), the U.S. Department of Labor issued its Final Rule (the "2013 Regulations") on the FMLA. The 2013 Regulations become effective March 8, 2013. The 2013 Regulations incorporate -- and in some cases, expand -- the military leave amendments of 2008. Families of eligible veterans now have the same protections as families of active military service members. The definition of "serious injury or illness" now covers pre-existing conditions aggravated by military service. A new leave category, parental leave, has been added to the qualifying exigency leave. The period of leave to be granted for a service member's rest and recuperation has been extended from five to 15 days. In addition, private health care providers, not affiliated with the military healthcare system, are now authorized to issue FMLA certifications for military-related leave. Listed below is a…
Citrix Remote Access https://remote.srbc.com You will need to download the Citrix client software before accessing the server. Clicking on this link should automatically detect your operating system and download the appropriate client for your computer: http://receiver.citrix.com **after installing on a MAC, click on this link to configure client settings: citrixreceiver://createprofile?pname=SRBC%20Citrix%20Applications&s=https%3A%2F%2Fremote.srbc.com&gw=0 Once you have the client software installed, point your browser to: https://remote.srbc.com If you have not installed the software prior to your first visit, you will be prompted to do so automatically. It is recommended you install the client from one of the above links prior to visiting the remote server. If you have installed the software, you will see a login screen. Simply enter your username and your network password. Once logged in, you may select individual applications to launch, or you may launch a desktop session. After you're done with your work, please make sure you log off…
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/
(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…
Christine Netski will join co-panelists Mark Phillips and Dana Pierce for the WBA program "Connecting with Your Jury" on April 23 at 12:30 pm. Learn how to use all of the tools at your disposal to connect with your audience. Not only the words you choose, but the story you tell, your body language, and your visual presentation affect how the jury (or any audience) perceives your message. Join the WBA's Women in the Courtroom Committee for a lunch meeting with a trial consultant and two seasoned trial attorneys and learn how to avoid common mistakes. Featuring panelists: Christine Netski -- Sugarman, Rogers, Barshak & Cohen, P.C. Mark Phillips - Phillips Partners, Inc. Dana Pierce - Suffolk County DA's Office Wednesday, April 23 -- 12:30 to 1:30 pm Wolf, Greenfield & Sacks 600 Atlantic Avenue (the Federal Reserve Building) 23rd Floor ~ North Conference Room Free to WBA Members and…
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…
The Massachusetts Appeals Court has ruled that a non-conforming lot, owned by a trustee in her capacity as trustee, did not automatically merge with an adjacent lot owned by the trustee in her personal capacity simply by virtue of the trustee’s extremely broad powers over the trust’s assets, which include the nonconforming lot. Rather, the Appeals Court held, the question of whether the lots merged, such that the nonconforming lot lost its protection from zoning requirements enacted after the creation of the lot, is a fact intensive exercise to determine whether the form of the trust is being used to defeat the law of merger or if there are other reasons to disregard the form of the trust. The decision, Kneer v. Zoning Board of Appeals of Norfolk, has interesting implications for zoning, probate, and estate planning law. Merger and Grandfathering The case illustrates the interplay between two important related…
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…
In a decision published on February 29, 2016, Bulwer v. Mount Auburn Hospital (473 Mass 672), the Massachusetts Supreme Judicial Court clarified the evidentiary burden a plaintiff must meet to overcome a motion for summary judgment in an employment discrimination claim under Mass. Gen. Laws ch. 151B, § 4. The Court held that where a reasonable jury could infer from evidence presented by a plaintiff that an employer's justification for terminating the plaintiff was false, the question of whether the given justification was a pretext for discrimination must be presented to a jury. The plaintiff in Bulwer, a black male from Belize who held a medical degree from a foreign medical school, practiced medicine outside the United States for thirteen years. Plaintiff came to Mr. Auburn Hospital to complete a residency program so that he could practice in the United States. The residency agreement was for a one-year term, renewable…
It is a scene all too familiar to separated and divorced parents. Two co-parents cannot stop arguing over who will have parenting time during the week of a major holiday. They both understandably want to spend time with their child during this special occasion, but cannot agree on how to make that happen. Tensions are high, and they both feel the other person is being completely unreasonable. No one wants to be in this situation, especially during the holiday season. So, what can co-parents do to reduce conflict around the holidays? Plan ahead. To reduce stress for both parents and the child, the best thing to do is plan ahead. Many holidays fall on the same day every year, and parents know which holidays are the most important for their family. It is a recipe for disaster to wait until the week of a holiday to begin discussing parenting plans.…
A Delaware superior court has granted summary judgment for a lawyers' professional liability insurer represented by Sugarman Rogers's William Boesch, in a dispute with an insured law firm over a claim seeking return of some $215 million in fees awarded in a securities class action. The law firm was co-lead counsel for the plaintiffs in the Tyco companies securities class action. The matter was settled in July 2007, and a New Hampshire federal judge approved the settlement, including over $460 million in contingent fees sought by the lead-counsel firms. In 2010, a member of the plaintiff class, Richard Gielata, sued the law firm, charging that the size of its fee violated a 2004 agreement in which the firm had agreed to cap the amount of its fees, and to oppose larger fees if sought by co-lead counsel. Gielata sought to have the firm return some $215 million in allegedly overcharged fees, plus punitive…
BBA News Release, April 2, 2020 The COVID-19 pandemic is presenting emergency legal issues (some foreseeable, others less so) that go to the heart of the BBA’s mission. For as long as this crisis persists, the Association will need a high-level Crisis Response Working Group to identify, consider and monitor emerging issues, and make recommendations as to appropriate BBA policy decisions, statements and actions. Last week, BBA President Chris Netski appointed members of the group, including President-Elect Marty Murphy as Chair. These members bring forth a diversity of expertise, which will allow them to have comprehensive discussions on the breadth of issues that have come up as a result of the pandemic. The group has met twice so far and has broken itself down into the following subcommittees, which are considering the following issues: Civil Access to Justice The Working Group is concerned about preserving litigants' access to justice at…
Let’s Do Lunch: LPM’s Guide to the Legal Galaxy - Take a Bite Out of KPIs - Law Firm Performance Analysis for the Uninitiated The Massachusetts Bar Association’s Law Practice Management Section continues its monthly luncheon programs geared toward practitioners of all experience levels. These programs provide an opportunity to learn from practice management leaders on how to be a better marketer and more efficient practitioner, which results in more profits for your firm. This month, we welcome Cristina Shinnick and Jared Correia to discuss performance analysis for law firms. Law firm managing partners are beginning to come around on the viability of statistical analysis for defining performance and challenging long-held assertions. Modern data management systems make it possible to archive and render more information than ever before. Even so, the realization that data is useful is a far cry from actually putting it to good use. If you’re a…
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…
Sugarman Rogers Partner and MBA Civil Litigation Section Co-Chair Tony Agudelo will moderate a panel discussion at the Massachusetts Bar Association entitled "Making the Winning Argument" on Wednesday, November 12. Five master trial lawyers will deliver verdict-winning opening statements and closing arguments they gave in real-life headline-making cases, and will explain their goals and challenges in preparing the arguments. Cases and topics include: Price v. Ambrus M.D. ($7 million verdict; medical negligence case) Zeolla v. Ford Motor Company (rollover of Ford Expedition; wrongful death case) A multi-plantiff racial discrimination and harassment case (Employment law; defense verdict) Aleo v. Toys R Us ($20.6 million verdict; product liability/wrongful death case) The program is free for all MBA members. Full event details are listed below. Making the Winning Argument Wednesday, November 12 4:00–7:00 P.M. MBA | 20 West St., Boston Register online MODERATOR Anthony V. Agudelo - Sugarman, Rogers, Barshak & Cohen, PC FACULTY Rober M. Higgins - Lubin & Meyer…
The Supreme Judicial Court has refused to give property owners a right of action against neighbors for injuries resulting from healthy trees growing on an adjacent property. In the decision, Shiel v. Rowell, the SJC re-affirmed the continued validity of the so-called “Massachusetts rule,” and refused the plaintiff’s invitation to adopt what some argue is a more modern standard, known as the “Hawaii rule,” that would give property owners a right to sue over injuries caused by healthy trees growing on a neighbor’s property. Property owners have always been able to unilaterally prune branches overhanging their property from a neighbor’s trees, as well as to remove intruding roots threatening damage to such structures as drain pipes, sewer lines and foundations. And owners of diseased, unhealthy or dead trees could be held liable for trespass and/or creating a nuisance on their neighbor’s property by such compromised trees. Massachusetts courts have long…
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…
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…
Addressing an issue of first impression, the Massachusetts Supreme Judicial Court has held that a “true excess” liability insurance policy, and a policy with a generic “other insurance” clause, both cover the same level of risk. Great Divide Ins. Co. v. Lexington Ins. Co. (Nov. 1, 2017) arose from a fatal motor vehicle accident to which three liability insurance policies applied. The first was a $1 million general liability insurance policy issued by Commerce Insurance Company that provided primary coverage. The second was a $10 million excess liability policy issued by Lexington Insurance Company. The third was a “hybrid” policy issued by Great Divide Insurance Company, which provided $1 million in primary liability coverage for accidents involving vehicles owned by its policyholder, but for leased vehicles—such as the one involved in the subject accident—said that it would be “excess over any other collectible insurance.” Great Divide sued in federal court…
The Massachusetts Supreme Judicial Court this week significantly augmented the ways a plaintiff’s claim can survive a special motion to dismiss brought under the state’s anti-SLAPP statute.
The Massachusetts Commission Against Discrimination (MCAD) recently issued its Annual Report for 2013 providing a useful window into the activities of the agency this past year. The report reflects that, as in past years, the Commission remains woefully understaffed in relation to its workload, resulting in long delays in processing cases. The Commission continues to be overwhelmed with new complaints, receiving more claims than it can resolve each year. In 2013 it received 3,224 new complaints. Consistent with the pattern in prior years, the vast majority (over 80%) of the new complaints concerned employment discrimination, with housing discrimination claims accounting for 11% of the filings. The total number of open cases at the investigative stage rose to almost five thousand (4,959), which translates to an average caseload of over 300 cases per investigator. In 2013 each investigator was assigned approximately 180 new cases yet, on average, they each closed only 108 cases during the year. The…
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…
The Eleventh Circuit Court of Appeals has upheld a finding that a computer fraud policy issued by Great American Insurance Co. did not cover an $11.4 million loss sustained when the policyholder’s reloadable debit-card product was exploited by fraudsters, as the loss was not a sufficiently “direct” result of computer fraud to fall within the policy’s terms. The insured, Interactive Communications International, Inc. (InComm), sold “chits,” units with assigned monetary value that consumers could purchase to add funds to reloadable debit cards. In order to redeem the chits, purchasers would call an InComm 1-800 telephone number, which connected them to a computerized interactive voice response (IVR) system that processed voice and touch-tone requests. When the consumer entered his or her debit card information into the IVR system, along with a PIN number for the chit, the system credited the chit value to the card and the funds became available for…
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…
An investment advisor whose failed real-estate fund lost $5 million in union-pension money, and who later defaulted when the pension trustees sued over the fund’s mismanagement, was entitled to coverage under its business-liability insurance policy, a Massachusetts federal judge has ruled. And because the insurer was wrong in concluding that the pension suit was not covered, the insurer presumably must pay its full $3 million policy limits to the pension trustees, and face bad-faith claims as well. The court’s decision, in Scottsdale Insurance Co. v. Byrne, highlights the risks an insurer faces when relying on policy exclusions to refuse a defense—particularly in circumstances where the policyholder has little or no incentive to defend itself, and where the applicability of the exclusions cannot be determined with certainty. The pension trustees in Scottsdale v. Byrne sued the investment advisor in late 2014. They claimed that the pension fund had given the advisor…
On May 18, 2016, the U.S. Department of Labor ("DOL") released its highly anticipated Final Rule Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees (the "Final Rule"). The Final Rule extends overtime pay eligibility to millions of workers by raising the thresholds required to satisfy "white collar exemptions" to the overtime pay protections of the Fair Labor Standards Act ("FLSA"). The Final Rule becomes effective December 1, 2016. Key Provisions of the Final Rule The Standard Salary Threshold will increase to $47,476 per year ($913 per week). The new salary level, below which a worker is automatically entitled to overtime pay for hours worked over 40 per week, is more than double the current level of $23,660 per year ($455 per week). It represents the 40th percentile of full-time salaried workers in the nation's lowest income Census region (currently the South). Up to 10% of the Standard Salary…
A landscape architect is hired to assist a neighborhood association in opposing the proposed construction of a nearby house, and submits renderings of the house to the local conservation commission. The developer claims that the representations of the house are false and defamatory, and sues the firm. Can the landscape architect claim that the firm is engaged in constitutionally protected government-petitioning activities, and invoke the “Anti-SLAPP” statute that bars use of the courts to silence such activities? This is the essence of a question the federal First Circuit Court of Appeals recently sent to the Massachusetts Supreme Judicial Court for its response in Steinmetz v. Coyle & Caron, Inc. The important constitutional and land-regulation issues in the case have drawn the attention of the American Civil Liberties Union and free-press advocates as well as developers and their opponents. The certification of the question to the state high court promises another…
The First Circuit Court of Appeals has held that a liability exemption in the Oil Pollution Act (“OPA”) for oil spills from “public vessels” extends to spills from a Navy ship that is crewed and maintained by a private contractor. The decision, in Ironshore Specialty Insurance Company v. U.S. (September 15, 2017), affirmed a lower court’s dismissal of strict liability claims against the United States and a defense contractor arising from a 2014 oil spill at a Boston Harbor dry dock. But the First Circuit reinstated the accompanying negligence claims against the government, holding that those claims were not precluded by the OPA. The decision is an important development in light of the Navy’s increased reliance on private contractors to crew and operate certain ships. The Navy vessel at issue was the USNS Fisher, a large transport ship that carries military vehicles and containerized cargo for the Defense Department. A…
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…
