MBBP Firm Administrator Laurie Macdonald to be Honored by Massachusetts Lawyers Weekly 03/27/2013
Posted by Morse, Barnes-Brown Pendleton in MBBP news.Tags: excellence in the law, laurie macdonald, mass lawyers weekly
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Each year, Massachusetts Lawyers Weekly hosts its annual Excellence in the Law event, celebrating excellence throughout the legal community. Individuals are honored in categories such as Up & Coming Lawyers, and Excellence in Pro Bono, Marketing, Firm Administration and Operations. MBBP is proud to announce that Firm Administrator, Laurie Macdonald, has been selected as an honoree in Excellence in Firm Administration for her outstanding accomplishments throughout 2012.
Congratulations Laurie!
MBBP Attorneys Help Demystify LLCs — Upcoming MCLE Program 03/21/2013
Posted by Morse, Barnes-Brown Pendleton in Attorney News, Events, Legal Developments, Taxation.Tags: exit strategies, fundamentals of LLCs, llc formation, tax entities
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Business and Tax Attorneys Charles A. Wry, Jr. and Diana C. Española are among the faculty presenting at MCLE New England’s LLCs Demystified: Advising Clients on Organization and Operation on Tuesday, April 9, 2013, 2:00 pm to 5:00 pm.
The program focuses on the fundamentals of LLCs providing practical advice on selecting business entities, operating and advising LLCs, and identifying and resolving issues which arise when 
such entities are parties to customary commercial transactions, and also delves into common tax issues for LLCs.
To learn more or to register for this event, please visit MCLE.
For more information on LLC formation, please contact Diana Española or Chip Wry.
MBBP Immigration Event: Alternatives to H-1B Visas 03/20/2013
Posted by Morse, Barnes-Brown Pendleton in Events, Immigration, Legal Developments, MBBP news.Tags: h-1b visa, immigration, STEM extention
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On Thursday, May 9th MBBP is hosting a complimentary immigration event on the topic of “Alternatives to H-1B Visas“. With the economy steadily improving, over the past two years the H-1B cap has been reached very quickly. The most recent year, it was reached in approximately two months.
This timely event will provide an overview of other visa options employers have to utilize the best available talent, including: 17 Month STEM Extensions, L, TN, O, E and B visas. We will address the advantages and pitfalls of each visa category, and will also host a question and answer session.
Please visit our event page for more details and to register.
Noncompetition Agreements: Protecting Customer Relationships & Confidential Information 03/20/2013
Posted by Morse, Barnes-Brown Pendleton in Client News, Employment, Events, Legal Developments.Tags: employer interests, employment agreement, noncompete, Noncompetition agreements
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On Tuesday, April 23rd MBBP is hosting a complimentary breakfast program titled “Noncompetition Agreements: Protecting Customer Relationships & Confidential Information“. Employers often ask: “Are our non-compete agreements with employees enforceable?” The answer often depends on whether the employer took the necessary steps to put an effective agreement in place. Courts in Massachusetts generally will enforce reasonable agreements when necessary to protect particular employer interests, such as customer relationships and trade, from misappropriation. On the other hand, courts generally do not enforce non-compete (or non-solicit and non-disclosure agreements) when no real protectable interests are at stake, the restrictions are unreasonable, or the employer has undermined its ability to enforce them.
This Program will identify the steps employers can take to increase the likelihood that a court will enforce its restrictive agreements with employees, provide education and insight into how such agreements are enforced by employers, and de-mystify the litigation process. We will also review recent legal developments that may affect whether the agreements you currently have in place with employees are vulnerable to attack by departing employees.
Our presenters have decades of experience advising employers and litigating cases in this area and we expect that attendees will bring a wealth of knowledge and experience to the program. Through discussion, we expect a very enlightening exchange of practical ideas and a range of employer experiences.
Please visit our event page for more information or to register.
NEW VC Spotlight Features 2012 VC Data, Dilution, Crowdfunding, and Non-Compete Legislation 03/20/2013
Posted by Morse, Barnes-Brown Pendleton in Client News, Corporate, Industries, Legal Developments, New Resources, Venture Capital & Private Equity.Tags: crowdfunding, dilution, VC spotlight, vc transactions
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Each quarter, MBBP compiles a comprehensive database of venture capital transactions that have closed within New England, New York and New Jersey. In our most recent VC Spotlight, MBBP presents the 2012 First Institutional Rounds – Deal Terms in the chart seen below.
Further data analysis can be found in this quarter’s VC Spotlight Newsletter.
Other articles featured include:
- The Price of Growth – The Lifecycle of a Company from a Founder’s Dilution Perspective
- What Every Startup Should Know About Crowdfunding
- New Proposed Massachusetts Non-Compete Legislation Focuses on Duration of Restrictions
The full newsletter is available here.
Does a Reverse Triangular Merger Constitute An Assignment by Operation of Law? 03/12/2013
Posted by Morse, Barnes-Brown Pendleton in Corporate, Legal Developments.Tags: m&a, merger
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By: Joe Marrow
In a Delaware Court of Chancery decision dated February 22, 2013, Vice Chancellor Parsons held that a reverse triangular merger does not constitute an assignment by operation of law under Delaware law. The decision, Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH, C.A. No. 5589-VCP (Del. Ch. 2013) helped to clarify some uncertainty created by the same court in an earlier decision involving the same parties. As a result of the decision, M&A practitioners should feel more comfortable that Delaware courts will find that a reverse triangular merger will not be considered an assignment by operation of law when interpreting a contract.
Read the full article.
For more information on this and other M&A topics, please contact Joe Marrow.
Immigration Alert: CIS Issues New Form I-9 – Certain Older Versions of the Form Can Be Used Through May 7, 2013 03/08/2013
Posted by Morse, Barnes-Brown Pendleton in Client News.add a comment
On November 6, 1986, the Immigration Reform and Control Act was signed into law and required that every employer verify the identity and employment eligibility of their employees in the United States. It also created criminal and civil sanctions for violations. This verification is documented on the Form I-9 and must be completed within strict time periods. Additionally, the Form I-9, and any supporting documents, must be retained for three years from the date of hire or one year from the date of termination, whichever is later. The form must be available for inspection by authorized U.S. Government officials from the Department of Homeland Security, Department of Labor, or Department of Justice.
For the past several months, employers have had to utilize a Form that had expired. However, on March 8, 2013, the U.S. Citizenship & Immigration Services (“CIS”) issued a new version of the Form I-9.
The new Form I-9 is effective immediately, and can be found at CIS’s website. While the previous versions of the Form dated either 02/02/09 or 08/07/09 will be accepted until May 7, 2013, after then only the Form I-9 dated 03/08/13 may be used. Employers only need to utilize the new Form I-9 for new hires or re-verification. If a current employee already has a properly completed Form I-9, then the employer does not need to complete a new Form I-9.
Civil penalties for technical paperwork violations relating to Form I-9 compliance can vary from $110 to $1100 per violation. It is therefore critical that every employer revisit their hiring practices and ensure that they are utilizing the correct version of the Form, and also adhere to the required timeframes and documentation retention periods. The revision date can be found on the lower left corner of the form.
CIS is in the process of revising the “Handbook for Employers Guidance for Completing the Form I-9 (M-274)” and a new version is expected to be released in the next week. In the meantime, employers should follow the instructions on the new Form I-9 until the Handbook is updated.
Please contact a member of our immigration group if you have any questions relating to Form I-9 compliance or any other important immigration issue.
New Regulations Require Use of Updated FMLA Poster by March 8 03/04/2013
Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.Tags: DOL, Family and Medical Leave Act, FMLA
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The U.S. Department of Labor (DOL) recently issued new Family and Medical Leave Act (FMLA) regulations which take effect on March 8, 2013. Most of the changes in the regulations relate to the FMLA’s military leave provisions and the Airline Flight Crew Technical Corrections Act. The regulations require covered employers to post a new, updated poster by March 8. The new poster is available on the DOL’s web site.
The new regulations also make some relatively small changes and clarifications in others areas, including how employers should calculate increments of intermittent FMLA leave. The Department of Labor provides a side-by-side comparison of the prior regulations and the new regulations here.
If you have questions or want more information on the new regulations, you can contact Bob Shea.
Wage & Hour Tip: Understanding the Frequency of Payment Rules 02/26/2013
Posted by Morse, Barnes-Brown Pendleton in Employment, MBBP news, New Resources.Tags: payment frequency, wage and hour
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Did you know that an employer who does not pay its non-exempt employees every two weeks may technically be violating Massachusetts law? Read February’s Wage & Hour Tip for more information on payment rules.
Please feel free to contact MBBP’s Employment Law Group with any questions.
Developing an app? Make sure you own it! 02/20/2013
Posted by Morse, Barnes-Brown Pendleton in Games & Interactive Entertainment, Intellectual Property, Licensing & Strategic Alliances.Tags: app development, ownership rights, phone apps
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On February 11th, Adobe published an article “Developing an app? Make sure you own it!” written by MBBP Licensing, Technology and IP Attorney Michael Cavaretta. Mike advises readers on precautions app developers should take in order to ensure their ownership rights are protected.
To read the full article, please visit the Adobe Developer Connection.
For more information on developing an app, feel free to contact Mike.
New Proposed Massachusetts Non-Compete Legislation Focuses on Duration of Restrictions 02/12/2013
Posted by Morse, Barnes-Brown Pendleton in Client News, Employment, Legal Developments.Tags: massachusetts legislation, non-compete, non-compete duration
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By: Bob Shea
Over the past several years legislators in Massachusetts have filed various bills seeking to address perceived employer overreaching in the area of non-competition agreements. According to the legislators, many employers impose non-compete restrictions on employees in circumstances where such restrictions are not appropriate, or impose restrictions that go beyond what might be necessary to protect legitimate business interests (i.e., customer good will, trade secrets and other confidential business information).
Recent bills introduced by Representative (now Senator) Will Brownsberger and Representative Lori Erlich addressed non-compete issues in a fairly comprehensive way, attempting to codify, clarify, and modernize existing common law in Massachusetts. The bills met opposition by some business groups which viewed the bills as trying to place unacceptable limitations on the legitimate use and scope of non-compete restrictions. Although the bills garnered some support, including from employee advocates, the Governor’s office and some journalists, the legislators’ efforts were unsuccessful.
This year, Sen. Brownsberger and Rep. Erlich have presented a bill that focuses only on the duration of non-compete restrictions. The bill, House Bill No. 2221, referred to as “the Noncompetition Agreement Duration Act,” seeks to create a presumption that a non-compete restriction lasting up to six months is reasonable in duration, whereas a non-compete restriction lasting more than six months is presumed unreasonable in duration. The bill provides that a non-compete agreement that is determined by a court to be unreasonable in duration shall be unenforceable.
The bill provides for three exceptions: a non-compete agreement of unreasonable duration will not be unenforceable if (i) the employee has breached a fiduciary duty to the employer, (ii) the employee unlawfully took the employer’s property, or (iii) the employee has received $250,000 in annual taxable compensation from the employer. When one of these exceptions applies, a court could enforce the non-compete agreement for any duration the court determines is appropriate.
We believe the bill will face strong opposition, and its prospects for passage are, at best, uncertain.
If you have questions or want more information on this proposed legislation, you can contact Bob Shea.
The Uncertain Future of E-Verify? 02/11/2013
Posted by Morse, Barnes-Brown Pendleton in Client News, Immigration, Legal Developments.Tags: background checks, e-verify, I-9 employment verification, social security administration
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By: Donald Parker
E-Verify is an online system operated by the Social Security Administration (“SSA”) and the Department of Homeland Security (“DHS”) that allows employers to check both the validity of a new employee’s Social Security Number and whether that employee is authorized to work in the United States. On the drawing table in various forms since 1996, but revived and re-implemented in 2007, E-Verify has to-date been a voluntary system for most employers in the United States. Once an employer registers with E-Verify it is required, however, to process all new hires through the E-Verify system.
E-Verify is intended to be an add-on to the I-9 Employment Verification process that has been required of all employers for several decades. Many of our clients have registered with E-Verify and the returns so far have been largely positive. While the system can occasionally return false positive data that can then take several weeks to get resolved with the SSA and DHS, these problems are not common. Indeed, this bright-line test approach has its advantages. Employers in industries that have a high level of workers without proper legal authorization to work like the ability to determine up front whether the employee’s Social Security Number is valid and/or whether the employees in fact are authorized to be employed in the United States.
Until recently, most immigration law practitioners felt that the early success of E-Verify signaled that DHS would make it a mandatory system of all employers in the United States within the next several years. And that may still happen. In the outline of a Senate proposal that was issued recently for Comprehensive Immigration Reform legislation, however, there is language that suggests that the employment verification system in the United States would be revamped and made stronger. The Senate proposal contains a number of strong statements relating to immigration and employment control issues and processes that are clearly intended to open the door to a dialogue on an “amnesty” program for persons that are in the United States illegally. While this is an admirable and sensible goal, we would hope that the Senate does not throw the baby out with the bathwater when it comes to E-Verify. The combination of the I-9 verification process and a mandatory E-Verify system is a powerful tool for employers to control their hiring foreign nationals. E-Verify works and works well and efficiently and our hope is that the Senate does not turn its back on it in the desire to appear “tough on immigration”.
For more information on this topic, please contact Donald Parker.
Survey Says: Top 10(ish) Intellectual Property Developments of 2012 02/07/2013
Posted by Morse, Barnes-Brown Pendleton in Legal Developments.Tags: 2012 IP developments, intellectual property court decisions, law changes, top 10
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By: David Fazzolare
Looking back over the past year, there were many interesting developments in intellectual property. In an effort to keep our contacts and clients up-to-date with the most recent IP law changes and court decisions, MBBP has published an article containing a comprehensive list of Top 10 Intellectual Property Developments of 2012. To view the article, please visit our IP Resources page.
Please contact IP Attorney David Fazzolare with any questions on this article.
MA Employers Should Review Employee Release Language 02/06/2013
Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.Tags: separation agreement, SJC, wage act claims
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By: Bob Shea
As we reported in December, in Crocker v. Townsend Oil Company, Inc., the Massachusetts Supreme Judicial Court (“SJC”) provided important guidance to employers concerning releases by employees of claims under the Massachusetts Wage Act, M.G.L. c. 149. The SJC stated in Crocker that a release of claims under the Wage Act will be enforceable only when the release is stated in “clear and unmistakable terms.” The release must be plainly worded and understandable to the average individual and must specifically refer to the rights and claims under the Wage Act that the employee is waiving.
In light of the Crocker decision, employers in Massachusetts are wise to review the release language contained in their forms of employee separation agreement to ensure that language meets the standard set forth by the SJC.
For any questions on this topic, feel free to contact any member of the Employment Law Group.
Intellectual Property – The Economic Booster 02/05/2013
Posted by Morse, Barnes-Brown Pendleton in Legal Developments.Tags: economic booster, ESA, intellectual, USPTO
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By: Andrew Bunin
Last year the U.S. Commerce Department published a report on the role intellectual property (IP) plays in the economy. The report found that IP-intensive industries support at least 40 million jobs and contribute nearly 35% ($5 trillion) of the U.S. gross domestic product (GDP). It also proved that between 2010 and 2011, direct employment in IP-related industries increased 1.6% faster than the 1% growth in all non-IP industries, and merchandise exports of IP-related industries accounted for 60.7% of total U.S. merchandise exports. Considering these statistics, it comes as no surprise that the current Administration has made an effort to protect IP through the modernization of current patent and trademark systems. Deputy Commerce Secretary Rebecca Blank commented on the necessity of supporting intellectual property today:
Strong intellectual property protections encourage our businesses to pursue the next great idea, which is vital to maintaining America’s competitive edge and driving our overall prosperity. The IP protections we put in place today are helping support economic security for America’s middle class now and in the years to come.
The report titled “Intellectual Property and the US Economy” was prepared by the US Commerce Department’s Economics and Statistics Administration (ESA) and the US Patent and Trademark Office (USPTO). Please find the full report here.
To learn more, please visit our Intellectual Property Services page. Feel free to contact Andrew with any questions.
Retaliation Again Is the Top Claim Filed with the EEOC 02/04/2013
Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.Tags: eeoc, employment law advisor, retaliation claims
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By: Bob Shea
The federal Equal Employment Opportunity Commission (“EEOC”) has released its statistics for fiscal year 2012 and for the third year in a row charges alleging unlawful retaliation by employers was the leading type of discrimination alleged. Retaliation claims accounted for 38% of the charges filed with the EEOC, up one percent from 2011, followed by race, gender, age and disability discrimination. Last month, MBBP’s Employment Law Advisor focused on this dangerous area of employment law and outlined steps employers should take to reduce their legal exposure. January’s Employment Law Advisor is found here.
Please contact Bob Shea with any questions on this topic.
Action Items for Smaller Reporting Companies: Nasdaq Changes Compensation Committee Requirements 01/31/2013
Posted by Morse, Barnes-Brown Pendleton in Legal Developments, Public Companies.Tags: compensation committee, corporate governance, nasdaq, SEC
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The SEC recently approved changes to Nasdaq’s corporate governance requirements regarding compensation committees. These changes apply to any company whose stock is listed on Nasdaq – with certain significant exceptions. Smaller reporting companies, or SRCs, are exempt from many, but not all, of the new requirements. Here is a brief summary of how the changes will affect SRCs.
All Nasdaq listed companies, including SRCs, are now required to have a compensation committee consisting of at least two members each of whom qualify as independent under Nasdaq’s current listing standards. The compensation committee must adopt a formal written charter which includes specific provisions noted here:
- the scope of the compensation committee’s responsibilities, and how it carries out those responsibilities, including structure, processes and membership requirements;
- the compensation committee’s responsibility for determining, or recommending to the board for determination, the compensation of the chief executive officer and all other Executive Officers of the Company; and
- that the chief executive officer may not be present during voting or deliberations on his or her compensation.
Alternatively, in the absence of a compensation committee charter, a SRC may have the Board adopt resolutions specifying the committee’s responsibilities and authority. The compensation committee is required to review and reassess its charter on an annual basis.
Action Item: SRCs that do not have a compensation committee should begin identifying potential compensation committee members.
Action Item: SRCs who do not have a compensation committee charter should begin drafting a charter. SRCs who already have a charter in place should review their charter to determine whether modifications are required.
SRCs have until the earlier of their first annual meeting after January 14, 2014, or October 31, 2014 to comply with the provisions set forth above, Each listed company must certify to Nasdaq that it has met the requirements described above no later than 30 days after such date.
For more information on this topic, please contact Daniele Levy.
Not Only is it Cold, but the Winds of Change are Blowing 01/24/2013
Posted by Morse, Barnes-Brown Pendleton in Legal Developments.Tags: first-to-file, patent applications, patent reform
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Time is running out! The (mostly) final piece of patent reform legislation goes into effect on March 16, 2013. In order to have new patent applications or patent applications claiming newly added subject matter considered under current law/rules, such patent applications must be filed on or before March 15th.
Widely known as the conversion to a “first-to-file” system, there are a number of changes which will be taking effect, many of which will harmonize US practices with global practices. Generally speaking, the body of prior art will be expanding, and the options for overcoming prior art will be shrinking; thus there is a pretty clear advantage to obtaining an effective filing date prior to March 16th. There is likely to be a rush to file patent applications in advance of the change date, so if you have plans to file such an application it would be wise to speak with a patent attorney as soon as possible.
For additional information on this or any other patent issue, feel free to contact Lisa Treannie.
FTC Increases “Interlocking Directorate” Thresholds 01/22/2013
Posted by Morse, Barnes-Brown Pendleton in Legal Developments.Tags: clayton act, Federal Trade Commission, interlocking directorate thresholds
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By: Carl Barnes
Thresholds for interlocking directorates increased as of January 14, 2013, upon publication of the new thresholds by Federal Trade Commission in the Federal Register. Section 8 of the Clayton Act, 15 U.S.C. §19, generally prohibits one person from serving as a director or officer of two competing corporations if two thresholds are met. Effective upon publication, competitive corporations are covered by the law if each one has capital, surplus and undivided profits aggregating more than $28,883,000 (increased from $27,784,000), unless the competitive sales of either corporation are less than $2,883,300 (increased from $2,778,400).
For more information on this topic, please contact Carl Barnes.
MBBP Welcomes Attorney Andrew M. Bunin 01/22/2013
Posted by Morse, Barnes-Brown Pendleton in Attorney News, MBBP news.Tags: Intellectual Property, patent attorney, patent preparation and prosecution
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MBBP is pleased to announce that Attorney Andrew M. Bunin has joined the firm as an associate. Andrew is a registered patent attorney practicing in all areas of intellectual property law including patent preparation and prosecution, trademark prosecution, and intellectual property portfolio management. Andrew specializes in a range of technologies including communication devices, nanotechnology, computer software and hardware, optics, medical devices, mechanical devices, electronics, and diagnostics. He has experience performing intellectual property analysis regarding patentability, freedom to operate, and infringement.
Prior to joining MBBP, Andrew practiced at an intellectual property specialty law firm in the Boston area. Andrew has in-house experience in the legal departments of a large corporation in the surgical field, a mid-size government contract company, and a biotech start-up company. Prior to his law career, Andrew worked as a Patent Examiner at the United States Patent and Trademark Office.
Andrew holds a B.S. in Biological Resources Engineering from the University of Maryland and a J.D. from Franklin Pierce Law Center (now University of New Hampshire School of Law). Currently, Andrew is pursuing certificates in Computer Engineering Technology and Electronics Technology as well as a degree in Electronic Engineering Technology from the University of Massachusetts-Lowell.
Please contact Andrew with any IP law questions.
