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MBBP’s Jon Gworek on Panel for Harvard Law School Event: Careers in Venture Capital and Private Equity for J.D. Students 10/30/2014

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Events, MBBP news, Venture Capital & Private Equity.
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Corporate Attorney Jonathan GworekHarvard Law School’s Office of Career Services is hosting an upcoming event, Careers in Venture Capital and Private Equity for J.D. Students on November 12th. MBBP Partner Jon Gworek will serve as a panelist at this event along with Deirdre Cummane of ATV Capital and David Kreisler of Weil Gotshal. This event will discuss topics such as the key differences between venture capital and private equity, a lawyer’s role in the field, and  strategies on how to embark on a career in the field.

For any questions regarding venture capital and private equity, please contact Jon Gworek

MBBP Sponsors The Business Coalition Series: ‘Why Massachusetts’ 10/28/2014

Posted by Morse, Barnes-Brown Pendleton in Events.
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2014-10-28_13-05-23On November 12th, MBBP along with Boston Offices will sponsor the first of a 3-part series hosted by The Business Coalition titled ‘Why Massachusetts’. Read it how you will, it’s not meant as a question, but rather, the answer! The series, presented by Massport, will focus on topics such as shipping, cargo and the cruise terminal (Nov), travel and tourism (Dec) and the airport and direct flights (Jan 2015), all topics that relate to the MA economy and the state’s growth as it pertains to attracting foreign businesses. The first part of the series will emphasize Massachusetts’ plans to modernize the Port of Boston.

Learn more or register via The Business Coalition.

MBBP Client Virgin Pulse Links with Apple’s New HealthKit App 10/28/2014

Posted by Morse, Barnes-Brown Pendleton in Client News.
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2014-10-27_12-57-01MBBP Client Virgin Pulse, a health and wellness software company, has integrated its products with Apple’s new HealthKit app. Being one of the first health programs to connect to Apple’s iPhone 6 health app, Virgin Pulse has an opportunity to serve as intermediary between HealthKit and the wide range of health, wellness, and fitness applications Virgin Pulse currently connects to, so they may work together. This integration  might be the beginning of a health revolution. Virgin Pulse offers a wide-array of health and wellness related services to promote positive behavior change. Now with the integration of the HealthKit app the company offers a larger opportunity for more users to track health data.


To read more about the Virgin Pulse and HealthKit integration 

MBBP Supports MA Colleges and Universities in MITEF ‘Beantown Throwdown’ 10/23/2014

Posted by Morse, Barnes-Brown Pendleton in Events, Intellectual Property, MBBP news, New Resources, Telecommunications & Networking.
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2014-10-23_13-28-36MBBP joins MIT Enterprise Forum of Cambridge and CHEN PR in hosting the upcoming Beantown Throwdown in November.  Students from top colleges and universities in Massachusetts will pitch off their innovative ideas for start-up companies.  Students representing Babson, Berklee, Boston University, Boston College, Harvard, MIT, UMass Lowell, Northeastern and Wentworth will have 3 minutes to present their ideas to attendees who will then invest in their favorite companies with fake cash. The top three start-up companies with the most “money” invested will win various prizes and take part in a discussion panel the following evening.


To learn more about the Beantown Throwndown

Forum Selection Clauses – From MBBP’s M&A Today 10/22/2014

Posted by Morse, Barnes-Brown Pendleton in Corporate, Legal Developments, M&A.
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In City of Providence v. First Citizens Bancshares, Inc. decided in September 2014, the Delaware Court of Chancery analyzed a forum selection provision contained in a company’s by-laws and granted the defendant’s motions to dismiss.  The plaintiff, City of Providence, challenged the forum selection provision in the defendant’s by-laws, which provision selected the United States District Court for the Eastern District of North Carolina as its forum.  The defendant, First Citizens BancShares, Inc., which was headquartered in Raleigh, North Carolina, had adopted this provision on the same day that it announced that it had entered into a merger agreement to acquire another bank.   The plaintiff’s complaints (i) challenged the facial validity of the forum selection provision, asserting a breach of fiduciary duty in connection with its adoption; and (ii) asserted claims against the defendant’s board of directors with respect to the proposed merger.

Although many states have not yet addressed the issue of enforceability of forum selection provisions, given the high percentage of shareholders lawsuits which are filed in connection with M&A transactions, companies should consider amending their by-laws to provide for an appropriate forum selection provision to help reduce future potential litigation risks.   With the Delaware Court of Chancery conclusion in the City of Providence decision, other states will likely follow.

Read more on our M&A Blog.

MBBP Client Named to BBJ and MHT 2014 Innovation All-Stars List 10/21/2014

Posted by Morse, Barnes-Brown Pendleton in Client News, Computer Software & Hardware, Internet and E-Commerce, MBBP news.
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2014-10-20_13-58-38This month, the Boston Business Journal and Mass High Tech have published the list of 2014 Innovation All-Stars .  This year, two individuals and 15 companies will be honored. Among the companies named is MBBP client erecruit,  which was selected for the category of internet and business software.

Congratulations erecruit!

The full list of the 2014 Innovation All Stars can be read here

MBBP’s Sean Detweiler Presents at WIT Accelerate Bootcamp 10/14/2014

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Events, Intellectual Property, Licensing & Strategic Alliances, MBBP news.
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Patent Attorney Sean DetweilerLast week, MBBP patent attorney Sean Detweiler spoke at an even hosted by the Wentworth Institute of Technology Accelerate program.  The event is called Bootcamp, and it allows students to get insights about innovation and entrepreneurship, while also getting inspiration for new ideas and and how to make them real. Sean gave a presentation on intellectual property with specifics about patents, including provisional applications, what they should cover and when to think about them in the context of a start-up scenario.  The audience was very involved, and there were some great questions as well as more specific discussions on patent law issues.

For more info on patents and intellectual property, please contact Sean Detweiler


MBBP Client Results:Digital Acquired by MARC USA 10/06/2014

Posted by Morse, Barnes-Brown Pendleton in Client News, Computer Software & Hardware, Internet and E-Commerce, MBBP news.
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resultsdigMBBP Client Results:Digital, a Boston-based digital media agency, has been acquired by  a national marketing communications company. MARC USA is a  full-service marketing firm known for uncovering radical insights that incite powerful reactions through a deeper understanding of whole-brain behavior.  MARC USA offers many services, including advertising, strategic planning, and public relations. Results:Digital’s expertise lies in developing digital marketing solutions for large-scale B2C and B2B clients. The company focuses on understanding consumer behavior in order to uncover their unique insights, and from there decides how to successfully connect and influence consumers. The combination of the two companies will accelerate the growth of digital media offerings and services to better meet consumer needs.

“This acquisition gives us both expanded expertise in the fast-growing digital space as well as a new regional base in Boston, a city we believe has great potential for our combined agency,” said Tony Bucci, Chairman of MARC USA.

Results: Digital will be renamed  to MARC USA|Results:Digital and will then be fully-integrated within MARC USA’s media capabilities.

Congrats, Results:Digital!

To read the full article 

Section 16 Compliance is Not Recommended (Hint … It’s Actually Required) 10/06/2014

Posted by Morse, Barnes-Brown Pendleton in Client News.
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Corporate Attorney Carl BarnesBy: Carl F. Barnes 

On September 10, 2014, the Securities and Exchange Commission issued a press release announcing a major enforcement initiative, disclosing charges against 28 officers, directors or major shareholders of publicly traded companies for violating federal securities laws requiring them to promptly report information about their holdings and transactions in company stock. Six publicly traded companies were also charged for contributing to filing failures by insiders or failing to report their insiders’ filing delinquencies. One of the individuals named in the release is fighting the charges. The other 27, and all six of the companies, settled, agreeing to pay penalties totaling $2.6 million.

Section 16 the Securities Exchange Act of 1934 requires directors and certain officers of publicly traded companies, and holders of more than 10% of any class of equity securities issued by publicly traded companies, to file reports on Form 4 disclosing changes in their beneficial ownership of the companies’ securities within two business days after the change. Since its adoption in 1991, Item 405 of Regulation S-K has required public companies to examine these filings and to disclose any late filings in in their annual proxy statements and Form 10-K.

The failure to adhere to the strict Section 16 deadlines has frequently been seen as a “foot fault,” but the SEC clearly thinks otherwise. As Andrew J. Ceresney, Director of the SEC’s Division of Enforcement, said in the press release announcing the charges, “Officers, directors, major shareholders, and issuers should all take note: inadvertence is no defense to filing violations, and we will vigorously police these sorts of violations….”

Compliance with Section 16(a) is not the issuer’s responsibility: although companies frequently assist their insiders, it is the individual officer, director or shareholder who bears the legal responsibility. Companies, however, risk liability for failing to police and report violations as well as for failing to follow through with any assistance that they do offer.

What now? For most companies and insiders, just keep on doing what you’re doing. For others, though:

• Make sure that all Section 16 insiders grant several key officers, such as the president, the CFO and/or the general counsel, powers of attorney so that they are each authorized to sign and file the required reports on behalf of the insiders.

• Insist on prior notification of securities transactions by Section 16 insiders with those same key officers, so that they can ensure that the appropriate filings are prepared and made on a timely basis. Try to give them advance warning of option grants and other changes in beneficial ownership over which the company has control.

• Periodically confirm that the electronic filing codes each insider must have are up to date so that expired codes do not delay a filing while new codes are activated.

• Insist that insiders provide the Item 405 written representation each year that no Form 5 is required to be filed.

• And finally, don’t panic. Aim for perfection but remember that truly small numbers of filings that are late by a day or two are unlikely to attract enforcement scrutiny. At the same time, however, understand that the SEC is serious, and it is using advanced quantitative techniques to identify individuals and companies with especially high rates of filing deficiencies. And recognize that it’s not just about potentially embarrassing disclosures in your 10-K; it’s about cease and desist orders and serious monetary penalties for violating the securities laws.


For more on this topic, please contact Carl F. Barnes

Newest Issue of Preferred Returns Released 10/06/2014

Posted by Morse, Barnes-Brown Pendleton in Attorney News, MBBP news, New Resources, Venture Capital & Private Equity.
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Corporate Attorney Jonathan GworekLast month, the most recent issue of Preferred Returns, the online publication of the American Bar Association’s Private Equity and Venture Capital Committee was released. This issue includes the Committee’s second annual survey of venture capital cases for 2013, which summarizes the most significant cases from last year.   The publication has a number of useful articles covering the latest legal development impacting the venture capital industry,  including cases covered by MBBP’s Mary Beth Kerrigan and Scott Bleier, as well as other developments of note.

MBBP Partner Jon Gworek is current chair of the ABA PEVC Committee

For more info, please contact Jon 

MBBP Client ETEX Holdings Acquired by Zimmer Holdings, Inc. 10/03/2014

Posted by Morse, Barnes-Brown Pendleton in Client News.
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MBBP Client ETEX Holdings, Inc., a provider of nanocrystalline calcium-phosphate-based biomaterials that promote the repair and regeneration of bone damaged by trauma or disease, has been acquired by Zimmer Holdings, Inc., a developer and  manufacturer of orthopedic reconstructive, spinal and trauma devices, dental implants, and related surgical products.

Morse, Barnes-Brown & Pendleton serves as counsel to ETEX Holdings, Inc., and advised it in connection with the structuring, negotiation and documentation of this transaction.  Shannon Zollo, Joshua French, Stan Chalvire, David Czarnecki, and Scott Connolly were the attorneys involved on this transaction.

Read more about the acquisition here.



MBBP Client Sally Taylor Launches Multidisciplinary Art Project: Consenses 10/01/2014

Posted by Morse, Barnes-Brown Pendleton in Client News, Events.
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2014-09-29_14-00-55MBBP Client Sally Taylor recently launched Consenses, a multidisciplinary art project. Taylor was inspired by the Indian fable about six blind men encountering an elephant. According to the fable, each man draws different conclusions based on his limited experience, showing that perception is never right or wrong. Similarly, in Taylor’s Consenses, an artist is given a work from another genre without any information about the piece and is asked to interpret it in a new piece. The resulting work is passed to another creator from a different field who offers a new interpretation, and so on until all of the senses are engaged.

So far, more than 140 artists from 23 countries have been involved in Consenses.

Check out Consenses at  212 Elm St. in Somerville from Sept. 26 to Oct. 7 and at Club Oberon in Cambridge from Sept. 29 to Oct. 1.


Great work, Sally!

Jon Gworek Leads Private Equity and Venture Capital Committee at ABA Business Law Annual Meeting 09/29/2014

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Events, Venture Capital & Private Equity.
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Corporate Attorney Jonathan GworekThe Private Equity and Venture Capital Committee of the Business Law Section of the American Bar Association met September 11-13th at this year’s annual meeting held in Chicago. As chair of the PEVC Committee, MBBP Partner Jon Gworek was integrally involved in the planning of the committee’s activities and cahired the full committee meeting in Chicago. The PEVC Committee sponsored two CLE events; “Drafting a Stronger Preferred Stock: Responses to Recent Case Law Developments”, and “How Inside and Outside Corporate Counsel Can Work Together to Maximize the Value of Corporate Legal Services”.


To learn more, please contact Jon Gworek.

‘Battle of the Forms': Can it be won? 09/18/2014

Posted by Morse, Barnes-Brown Pendleton in Licensing & Strategic Alliances, New Resources.
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By: Michael J. Cavaretta

cavaretta2Often, in transactions between customers and vendors, each party has its own “boilerplate” terms and conditions that it wants to use, which of course are often quite different than the other party’s terms – a scenario referred to as “the battle of the forms”. So how does one know which terms govern the transaction? This presentation helps to sort it out.

Originally presented on 9/17/14, MBBP IP & Licensing attorney Mike Cavaretta touches upon the following:

  • Sale of services vs. sale of goods
  • Is software a service or good?
  • Is a software license a sale of software?
  • Electronic agreements
  • Strategies

View the slides here. Questions? Contact Mike.

BBK Worldwide raises $3M, eyes acquisitions 09/18/2014

Posted by Morse, Barnes-Brown Pendleton in Client News, Medical Devices.
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BBK WorldwideMBBP client BBK Worldwide has raised $3 million from a private, undisclosed investor and its two founders. The consultancy specializes in patient recruitment for the clinical R&D segments of the pharmaceutical, biotechnology, and medical device industries.

BBK moved from Newton to a new 15,000-square foot space in Needham earlier this year and has plans to grow its headcount by 10 percent before the end of the year.  BBK’s patient recruitment software is called TrialCentralNet, and its mobile app is My Clinical Study Buddy. The women-owned business says it has helped 23 of the world’s top 25 pharmaceutical companies to find patients for studied in the past year.

Read more in the Boston Business Journal.

Way to grow, BBK!

Upcoming Retrogression for Indian EB-2 Immigrant Visas 09/16/2014

Posted by Morse, Barnes-Brown Pendleton in Immigration, Legal Developments.
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After months of steadily moving forward the priority date for the Employment-based Second preference category (“EB-2”) for foreign nationals chargeable to India, in the October 2014 Visa Bulletin the Department of State (“DOS”) has stated that the EB-2 India priority date will retrogress to 2005 as early as on November 1, 2014.  Any Indian national with a “current” priority date for the EB-2 category is therefore encouraged to immediately file their I-485 Adjustment of Status application.

Additionally, officials within the DOS have told the American Immigration Lawyers Association (“AILA”) that the maximum number of Indian EB-2 immigrant visas for the current government fiscal year (running to September 30, 2014) has been reached.  Therefore, the DOS will not be allocating any new immigrant visas for EB-2 Indian nationals until October 1, 2014, which is the start of the next government fiscal year.  However, the Citizenship and Immigration Services (“CIS”) has stated that it will continue to accept filings with a current priority date – presumably through the end of October.   In addition, pending I-485 Adjustment of Status application and new applications filed during the month of September will be held until October 1, 2014, at which time they will begin to be processed.  As a result, Indian nationals should not delay their filing due to the unavailability of Immigrant Visas.

What this all means for the next 6 weeks is not clear.  There are a number of pending I-485 Adjustment of Status applications filed by Indian nationals with current priority dates.  We expect that some number of these pending cases will be approved when visa numbers again become available for a short period of time on October 1st.  How many will be processed and approved within this short window of time cannot now be determined.

Feel free to contact any member of our Immigration Law Group with any questions.

Going Concern Evaluation – FASB Issues a Roadmap for Management 09/15/2014

Posted by Morse, Barnes-Brown Pendleton in Legal Developments, Public Companies.
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Corporate Attorney Daniele Ouellette Levy

By: Daniele Ouellette Levy

Under US GAAP (generally accepted accounting principles) a company’s continuation as a going concern is presumed when preparing the financial statements.  As part of their review of the financial statements, auditors are required to evaluate whether there is a substantial doubt about the company’s ability to continue as a going concern for a reasonable period of time (often 12 months) after the date of the financial statements.

Until recently GAAP did not provide guidance to management regarding management’s responsibility to evaluate whether there exists a substantial doubt about the company’s ability to continue as a going concern.  As a result, there have been significant inconsistencies between companies in their evaluation of this issue as well as the related disclosures.  Also, without the benefit of guidance, management was often left to rely on the assessment performed by the auditors.

Companies may face unintended negative implications on their business resulting from the auditor’s determination of “substantial doubt” and the inclusion of a going concern qualification in the audit letter. For example, inclusion of a going concern qualification may result in a significant reduction in a company’s D&B Supplier Evaluation Risk Rating (SER).  The SER, which predicts the likelihood that a business will seek legal relief from creditors or cease operations in the next 12 months, is relied on by many large retailers to evaluate their vendors.  A significant reduction in a company’s SER could result in that company being dropped from the approved vendor list and losing a significant customer.

In August, FASB issued guidance to management in making this evaluation.  Based on this guidance, management is required to evaluate on a quarterly basis whether there are conditions or events that raise substantial doubt about the company’s ability to continue as a going concern in the next 12 months.  In its guidance FASB defined substantial doubt as: “Substantial doubt about an entity’s ability to continue as a going concern exists when relevant conditions and events, considered in the aggregate, indicate that it is probable that the entity will be unable to meet its obligations as they become due within one year after the date that the financial statements are issued . . . .”

Careful review of the roadmap provided by FASB and analysis by management may help standardize the evaluation and disclosures provided by companies and avoid negative business implications associated with a going concern qualification.

For more information on this topic, please contact Daniele.

FDA Establishes “Purple Book” for Biosimilars 09/15/2014

Posted by Morse, Barnes-Brown Pendleton in Legal Developments, Life Sciences.
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By: David Fazzolare and Joanna Brougher

Patent Attorney David FazzolareOn September 9, 2014, the FDA announced the establishment of the “Purple Book” (formally entitled “Lists of Licensed Biological Products with Reference Product Exclusivity and Biosimilarity or Interchangeability Evaluations”), which is the equivalent for biologics of the FDA’s “Orange Book.” Whereas the Orange Book lists all small molecule reference listed drugs and their counterpart generic drugs that have been approved by the FDA under the Hatch-Waxman Act, the Purple Book Patent Attorney Joanna Brougherlists all licensed biologics and will list the corresponding biosimilars when they are licensed by the FDA, and will designate whether the biosimilars are also interchangeable, under the Public Health Service Act (“PHSA”). The Purple Book will also provide the dates that the biologics were first licensed under section 351(a) of the PHSA, including whether the FDA has evaluated the biologic product for reference product exclusivity under section 351(k)(7) of the PHSA. Unlike the Orange Book, however, the Purple Book will not list patent information pertaining to licensed biologics.

Questions on the “Purple Book” can be directed to David or Joanna.

Mergers & Acquisitions 101 with Mark Tarallo 09/15/2014

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Events, M&A, MBBP news.
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Attorney Mark Tarallo will present the basics of an M&A transaction from start to finish in tomorrow’s Mergers & Acquisitions 101 provided by MyLawCLE.

Key topics to be discussed:

  • Pre-Transaction Considerations
  • Basic Transaction Structuring-Tax, Liability Protection and Other Considerations
  • Transaction Documentation
  • Post-Closing Matters
  • Recent Delaware Case Law
  • Ethical Issues

This CLE program is available in multiple formats, including live and self-study versions. Live broadcast will take place on Tuesday, September 16th from 2:00 – 5:15 EST.

Register at MyLawCLE.

Anti-Retaliation Provision of Whistleblower Statute Does Not Apply Extraterritorially 09/12/2014

Posted by Morse, Barnes-Brown Pendleton in Public Companies.
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Corporate Attorney Joseph MarrowBy: Joe Marrow

On August 14, 2014, the Second Circuit Court of Appeals held that the anti-retaliation provision of the Dodd-Frank whistleblower statute does not apply extraterritorially.  In its decision, Liu v. Siemens A.G., No. 13-4385-cv (2d Cir. Aug. 14, 2014), the Second Circuit upheld the Federal District Court’s holding that a foreign employee cannot successfully bring an action under the anti-retaliation provision of the Dodd-Frank whistleblower statute alleging improper conduct for events taking place outside the United States.

In Liu v. Siemens, Liu, a former employee of Siemens, alleged that Siemens fired him in response to his report of improper conduct against Siemens and in so doing Siemens violated 15 U.S.C. Section 78u-6(h) of the Dodd-Frank Act which prohibits an employer from retaliating against an employee for making certain protected statements.  Most notably, Liu, who is not a U.S. citizen and was employed abroad by Siemens, alleged that all improper conduct occurred outside the United States.  The Second Circuit noted the presumption that legislation is intended to apply domestically absent clear congressional intent that the legislation was intended to apply extraterritorially.  The Court found no such congressional intent.  Absent any type of nexus between the improper conduct and the United States and the presumption against applying the statute outside the United States, the Court refused to apply the anti-retaliation provision against Siemens in this case.

The Second Circuit’s holding provides some assurance to foreign companies that if the conduct alleged to violate the anti-retaliation provisions of the Dodd-Frank whistleblower statute takes place outside the United States, the foreign corporation should not face exposure under the statute.

For more information on this topic, please contact Joe Marrow


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