Pierce & Mandell, P.C.

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Boston, Massachusetts 02108-3002

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Pierce & Mandell Lawyers to present at 2019 Yankee Dental Conference

Friday, October 05, 2018
Pierce & Mandell, P.C. - Bill MandellPierce & Mandell, P.C. - Hannah Schindler Spinelli

Bill Mandell and Hannah Schindler Spinelli of Pierce & Mandell, P.C. will be presenting a continuing education seminar entitled Legal Issues in Practice Transitions at the 2019 Yankee Dental Conference on Thursday, January 31, 2019 at 2:00pm.

The program will focus on the legal issues in the purchase and sale of practices and ownership in practices. Topics covered will include

  • What legal documents are necessary to buy or sell a practice and when to retain legal counsel?
  • What are the most important early steps to take to ensure that the transition will be successful?
  • How can buyers protect themselves from the liabilities of the seller?
  • How can sellers secure commitments for post-closing activities?
  • What are restrictive covenants and are enforceable, and how are they impacted under the new Massachusetts non-compete law?

For more information on the program see https://www.yankeedental.com/course?sfid=a181J000004TfduQAC.

To register for Yankee Dental go to https://www.yankeedental.com/.

Recent SJC Decision Establishes That Insurer’s Duty to Defend Does Not Include Counterclaims

Monday, November 20, 2017

Curtis B. DoolingBy Curtis B. Dooling

Under Massachusetts law, an insurer’s duty to defend its insured is broad. An insurer has a duty to defend its insured if the allegations against the insured are “reasonably susceptible of an interpretation that states or roughly sketches a claim” that falls within the defense obligation’s scope. Billings v. Commerce Ins. Co., 458 Mass. 194, 200 (2010).

Even where some claims against an insured are not covered by insurance, if some of the claims are covered, an insurer has a duty to defend the insured against all claims. This is commonly referred to as the “in for one, in for all” doctrine.

Until recently, the law was unsettled in Massachusetts as to whether an insurer had a duty to pay the legal costs associated with a counterclaim filed by an insured in response to a covered claim against the insured. In the case of Mount Vernon Fire Insurance Company v. Visionaid, Inc., the Supreme Judicial Court, in a 5-2 opinion, held that an insurer is not required to pay for its insured’s counterclaim. Massachusetts has joined the majority of jurisdictions that don’t obligate an insurer to cover the costs of an insured’s counterclaim, even where the counterclaim is related to and assists in the defense of the underlying case.

The defendant/insured, Visionaid, Inc., argued that the duty to defend included all reasonably necessary steps to reduce the liability of the insured, including the costs of a counterclaim. The SJC relied on the plain meaning of the insurance policy and held that the policy did not impose an obligation on the insurer to fund a counterclaim.

Chief Justice Gants dissented and noted that an insurer can’t fulfill its duty to defend without prosecuting related counterclaims that reduce its insured’s liability. The majority disagreed and held that an affirmative counterclaim did not fall within the definition of “defend” under the policy.

Practically speaking, an insured who believes that it has valid counterclaims may still assert the claims, but will have to do so at its own expense. When this scenario occurs, insurance defense counsel will have to work closely with the insured’s personal counsel to both defend the case and prosecute the counterclaim.

Pierce and Mandell’s insurance and litigation attorneys are well-versed in these areas and can assist both insurers and policyholders in assessing what claims are covered under an insurance policy.

SJC Ruling Provides New Remedies for Shareholders of Deadlocked Corporations

Monday, November 13, 2017

Sam Hoff, Pierce & Mandell, P.C.By Sam Hoff

In its recent ruling in Koshy v. Sachdev, the Massachusetts Supreme Judicial Court issued an early holiday gift to any shareholder of a deadlocked Massachusetts corporation. Thanks to the SJC’s ruling, such shareholders now have available to them several alternative forms of relief which may allow them to regain control of their corporation, as opposed to taking the “extreme” measure of dissolving their corporation.

The facts in Koshy are all too familiar to any shareholder who has experienced the frustration of corporate deadlock before. Two friends, Koshy and Sachdev, co-founded a corporation which provided computer aided design services. They split the corporation’s shares 50/50 and served as its only two directors. After some initial growth and success, Koshy’s and Sachdev’s relationship began to deteriorate. They differed in opinion on a variety of issues including strategic business decisions, the amount and frequency of distributions, and managerial hiring. Their inability to compromise with one another on these issues eventually caused business to grind to a halt. Koshy and Sachdev each attempted to buy the other out and, as a last resort to get out of business with Sachdev, Koshy brought suit claiming that the corporation was deadlocked and must be dissolved. A Superior Court judge found that no deadlock existed, and Koshy appealed the finding.

Koshy is the first case in which the SJC has been called to interpret Section 14.30 of the Massachusetts Business Act (the “Act”). The Act allows any shareholder who holds 40% of the combined voting power of a corporation’s outstanding stock to petition the Superior Court to dissolve the corporation in the event that its directors are deadlocked. The SJC determined that the Act applies only in cases of “true deadlock” and set forth four factors which are relevant in determining whether true deadlock exists:

(1)Whether irreconcilable differences have resulted in a “corporate paralysis,” which is defined as a stalemate between the directors concerning a primary function of management (e.g., payroll, client services, hiring and retention of employees, and/or corporate strategy).

(2)The size of the corporation at issue, with deadlock more likely to occur in a small or closely held corporation, particularly one where ownership is divided on an even basis between two shareholder-directors.

(3)Any indication that a party to a lawsuit has manufactured a dispute in order to engineer a true deadlock.

(4)The degree and extent of distrust and antipathy between the directors.

Where true deadlock exists, relief is available under the Act so long as the shareholders cannot work around the deadlocked directors and irreparable injury is threatened to or being suffered by the corporation as a result of the true deadlock. The SJC found this to be the case in Koshy. Further, the SJC found that the relief available to shareholders of a deadlocked corporation is not limited to the “extreme” measure of dissolution, but includes alternative remedies such as a court-ordered buyout of one shareholder by another or the sale of the corporation to a third-party buyer. The appropriate remedy must be determined by the Superior Court on a case-by-case basis.

From a legal standpoint, the SJC’s ruling in Koshy is a major break from the prior understanding of the Act, as it opens the door for alternative equitable forms of relief. The key takeaway for shareholders of Massachusetts corporations is that they need not resign themselves to the dissolution of their corporation should it become truly deadlocked. This is especially good news for shareholders of small or closely-held Massachusetts corporations, many of whom have built their business from scratch and are personally invested in the goodwill and future success of the corporation. It is understandable that any such shareholder may be reluctant to dissolve his or her corporation. In light of the SJC’s ruling in Koshy, they may now bring suit and argue before the Superior Court that they should be allowed to regain control of their corporation and continue business by buying out their fellow shareholder(s).

Being a shareholder of a deadlocked corporation can be stressful and harmful to your bottom-line. If you find yourself in this situation, please contact the experienced business litigation attorneys at Pierce & Mandell to learn more about your rights and secure the future of your corporation.

The New Massachusetts Pregnant Workers Fairness Act

Tuesday, October 03, 2017

Pierce & Mandell, P.C.By: Lena J. Finnerty

On July 27, 2017, Governor Baker signed into law the Massachusetts Pregnant Workers Fairness Act (the “MPWFA”) which extends the protections afforded pregnant workers in Massachusetts beyond those currently provided under federal law. The Act, which will go into effect April 1, 2018, will amend the current anti-discrimination statute in Massachusetts, to prohibit workplace and hiring discrimination related to pregnancy, nursing, and other pregnancy-related conditions.

Current federal law protects pregnant and new mothers from discrimination in the workplace under the Americans with Disabilities Act and Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act. If an employee is temporarily unable to perform their job due to a medical condition related to pregnancy or childbirth, the employer must treat that employee in the same way it treats other temporarily disabled employees. However, the ADA does not consider pregnancy itself a “disability.” Rather, only conditions or impairments resulting from pregnancy may be considered covered disabilities.

Massachusetts has expanded these protections under the new MPWFA to provide all pregnant and nursing employees with reasonable accommodations without having to establish that they have a covered medical condition. The language of the MPWFA will be codified with the current Massachusetts anti-discrimination statute, M.G.L. c. 151B, stating that it is an unlawful practice for employers to discriminate based on “pregnancy or a condition related to said pregnancy, including, but not limited to, lactation, or the need to express breast milk for a nursing child . . .”, and to deny a reasonable accommodation for an employee’s pregnancy or any condition related to the employee’s pregnancy, unless the employer can show that the accommodation would impose an undue hardship that requires significant difficulty or expense on the employer’s program, enterprise or business.

Requirements under the MPWFA

(1.) Engage in the Interactive Process

The employer and employee must engage in a timely and good-faith interactive process to determine effective reasonable accommodations to enable the employee to perform the essential functions of their job.

(2.) Reasonable Accommodation

Examples of reasonable accommodation under the MPWFA include:

  • More frequent or longer paid or unpaid breaks;
  • Time off to recover from childbirth with or without pay;
  • Acquisition or modification of equipment or seating;
  • Temporary transfer to a less strenuous or hazardous position; and
  • Private non-bathroom space for expressing breast milk.

(3.) Documentation

An employer may request documentation from an appropriate health care or rehabilitation professional about the need for a reasonable accommodation, unless the request is for the following pregnancy accommodations: (1) more frequent restroom, food or water breaks; (2) seating; (3) limits on lifting over 20 pounds; and (4) private non-bathroom space for expressing breast milk.

(4.) Notice

Covered employers must provide written notice to all employees of their rights under the MPWFA in the form of a handbook, pamphlet, or other written means, including the right to be free from discrimination based on pregnancy and related conditions, and the right to reasonable accommodations. Written notice must be provided to:

  • New employees at or prior to the start of employment;
  • Existing employees by April 1, 2018; and
  • Within ten (10) days of the date an employee informs the employer of their pregnancy or related condition.

Who is Covered

  • Employers with six (6) or more employees; and
  • All employees, regardless of sex or gender.

What Employers Should do Now

  • Provide written notice to all current employees by April 1, 2018; to new hires upon the date of hire; and within ten (10) days to any employee who informs employer of pregnancy or related condition;
  • Review and amend employee handbooks and policies to reflect compliance with requirements of MPWFA;
  • Train human resources personnel, managers, and staff about the requirements of the MPWFA; and
  • Consult counsel with any legal compliance questions regarding the MPWFA.

If you are an employer with questions on how to best comply with the new MPWFA and other statutory obligations, or an employee that believes their employment rights have been violated, contact the experienced employment law attorneys at Pierce & Mandell.

The Wage Act – Are Commissions Considered Wages?

Tuesday, July 18, 2017

Pierce & Mandell, P.C., Boston, MABy Curtis Dooling

The Massachusetts Wage Act, G. L. c. 149, § 148, requires that employees pay their employees’ wages within six days of the end of the applicable pay period. The law includes harsh penalties for failure to pay wages, including the mandatory award of triple damages and attorneys’ fees. An employer that violates the Wage Act can also be subject to criminal penalties and corporate officers and directors can be held personally liable for Wage Act violations.

While the payment of hourly wages and salaries is generally straightforward, the payment of commissions can be decidedly less so. Employers often refuse to pay commissions to employees upon termination, even when the employee has earned the commission.

The Wage Act applies to commissions and the failure to pay earned commissions subjects employers to the same harsh penalties as the failure to pay hourly wages. The Wage Act states, in relevant part,

This section shall apply, so far as apt, to the payment of commissions when the amount of such commissions, less allowable or authorized deductions, has been definitely determined and has become due and payable to such employee, and commissions so determined and due such employees shall be subject to the provisions of section one hundred and fifty.

In other words, if the commission can be calculated and is due under the terms of an employment contract, the employer must pay it, or be subject to the penalties set forth in the Wage Act.

Even if the commissions are discretionary, that doesn’t necessarily mean they don’t fall under the guise of the Wage Act. Even when employers have wide discretion in making calculations and determinations as to the amount of commissions, an employee can still bring a Wage Act claim and can be awarded damages if the employee can show that the commissions were due and payable and definitively determined.

Pierce & Mandell’s litigation attorneys are well-versed in all aspects of the Wage Act and can guide both employers and employees through the process of filing and defending a Wage Act claim.

Attorney Curtis Dooling Serves as Panelist for MCLE Practicing with Professionalism Course

Wednesday, March 22, 2017

Pierce & Mandell, Curtis DoolingAll newly admitted lawyers in Massachusetts are required to take a one-day professionalism course within 18 months of admission. The day-long course, which is run by Massachusetts Continuing Legal Education (MCLE), covers a variety of topics, including ethics and professional conduct, court practice and successful attorney-client relationships.

MCLE recently invited Pierce & Mandell’s Curtis Dooling to sit on a lunchtime panel as part of the professionalism course. Dooling and three other panelists spoke to attendees and answered questions on such varied topics as balancing work and family, dealing with intransigent opposing counsel and career development.

On participating in the Practicing with Professionalism course, Dooling noted, “I found the discussion to be instructive and enjoyable and I was honored to be invited back by MCLE to be a panelist. I tried to provide some practical advice to the newly-admitted attorneys, advice I would have liked to receive when I was a newly admitted lawyer. The discussion focused on real-life issues, such as client relationships and career development, that aren’t taught in law school. I look forward to participating in more MCLE curricula in the future.”

Dooling Wins Premises Liability Jury Trial in Berkshire County

Thursday, February 02, 2017

Curt Dooling recently obtained a defense verdict on behalf of his clients in a jury trial in the Pittsfield District Court in Berkshire County.

The plaintiff sustained multiple leg fractures after tripping over an entrance rug in a convenience store in Pittsfield, Massachusetts. Dooling represented the owner and operator of the convenience store. The plaintiff alleged that the entrance rug on which he tripped was defective because it failed to comply with American National Standard B101.6, the Standard Guide for Commercial Entrance Matting. The plaintiff also claimed that the store failed to properly secure the mat to the floor, which created a tripping hazard.

Before the trial began, Dooling filed a motion in limine to exclude any evidence regarding the size and type of the entrance rug on which the plaintiff tripped and whether the rug complied with any industry standard or regulation. The trial judge allowed Dooling’s motion in limine, and as a result, the plaintiff was foreclosed from presenting evidence in support of key elements of his theory of liability.

The jury deliberated for less than one hour and returned a defense verdict, determining that Pierce & Mandell’s clients were not negligent.

Supreme Judicial Court Takes Appeal in Case Involving the Stored Communications Act

Tuesday, December 20, 2016

Pierce & Madell, Boston, MA, Robert L. Kirby, JrBy Robert L. Kirby, Jr.

In Ajemian v. Yahoo!, we represent the personal representatives of an estate seeking to gain access to the contents of a decedent’s Yahoo! email account. The Probate Court ruled that the Stored Communications Act, 18 U.S.C. 2701 et. seq., prohibited Yahoo! from divulging the contents of the email account to the personal representatives. We appealed. The Supreme Judicial Court has, sua sponte, transferred the appeal from the Appeals Court. We expect the Supreme Judicial Court to hear the appeal in early 2017.

BOB PIERCE SUCCESSFULLY TRIES FOUR JURY CASES IN 2016

Thursday, December 15, 2016

Founding shareholder Bob Pierce took four cases to jury trials in 2016. The cases were tried in four separate superior courts: Essex (Newburyport), Middlesex, Suffolk, and Dukes County (Martha’s Vineyard). In three of the cases, Bob achieved defense verdicts on behalf of his clients; in the fourth, the case settled after several days of trial based on a payment of less than 10% of plaintiff’s pre-trial demand.

Two of the cases were tort cases with large claimed damages. In one case, the plaintiff suffered a herniated disc in her back, which was exacerbated by a botched surgery which required multiple surgeries to correct. The plaintiff had well over $300,000 in medical bills.  Despite the substantial damages and a sympathetic plaintiff, the jury returned a defense verdict for Bob’s client.

In the second tort case, the plaintiff claimed a serious brain injury, and over $1 Million in lost earnings.  Once again, the jury returned a defense verdict, awarding the plaintiff nothing.

The third case involved claims by the plaintiff that the defendants, one of whom was defended by Pierce & Mandell attorney Lena Finnerty, had made false statements to the police about the plaintiff’s actions. As a result of these alleged false statements, the plaintiff was arrested, and charged with crimes. The plaintiff’s arrest generated substantial publicity in Boston newspapers and TV news. The plaintiff claimed that the arrest and attendant publicity caused her to lose substantial money in connection with the business she ran. Specifically, plaintiff claimed well over $1 Million in lost income. However, as a result of rulings on motions in limine in favor of the defense, and the inability of the plaintiff to obtain favorable testimony from the six witnesses who testified at trial, the case settled for a modest amount that was a fraction of the pre-trial demand.

The fourth case was a product liability case in which the plaintiff lost his left eye. The case was tried on Martha’s Vineyard, and the plaintiff was very sympathetic because he had obviously suffered an extremely serious and life changing injury. After a trial spanning close to two weeks, the jury returned a verdict in Bob’s client’s favor and awarded the plaintiff nothing.

PIERCE and DOOLING WIN PRODUCT LIABILITY TRIAL ON MARTHA’S VINEYARD

Wednesday, December 14, 2016

Pierce & Mandell, Robert Pierce, Boston, MAPierce & Mandell, Curtis Dooling, Boston, MABob Pierce and Curt Dooling recently obtained a defense verdict on behalf of their client in a jury trial in Dukes County Superior Court on Martha’s Vineyard.

The plaintiff in the case sustained a serious eye injury, which eventually led to the loss of the plaintiff’s eye, when he was struck with a golf disc designed and manufactured by Pierce & Mandell’s client. The plaintiff claimed that the golf disc that struck and injured him was dangerously defective because of its design and because it lacked proper warnings alerting users to its dangers. The firm challenged the plaintiff’s credibility by showing that the plaintiff’s version of how he was injured was not credible based on witness testimony and relevant medical records. The firm also successfully argued that the golf disc was not dangerously defective.

The case was challenging due to the very serious injury that the plaintiff suffered, and the fact that the individual who threw the disc that struck the plaintiff was no longer living in the United States and was unable to testify at trial.  Rather, his deposition testimony was read to the jury.

The case was tried over 6 days, and the jury deliberated for approximately 7 hours. The jury determined that Pierce & Mandell’s client did not breach the warranty of merchantability and that the golf disc was not dangerously defective.

Bob Pierce has now achieved complete victory for his clients in the last eight jury cases that went to verdict.


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