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Employment Law Clip: Employee Terminations Under the MA Wage Payment Law 03/17/2014

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Employment.
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Employers, there are some important aspects of the Massachusetts Wage Payment Law that you may not be aware of when firing or laying off an employee or employees. MBBP Attorney Christopher Perry explains what you need to know below:

Please feel free to contact any member of our Employment Law Group with any questions on Massachusetts wage payment laws.

Giant Otter Named Finalist in Harvard President’s Challenge 03/14/2014

Posted by Morse, Barnes-Brown Pendleton in Client News.
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Giant Otter TechnologiesOn March 14 MBBP client Giant Otter Technologies was announced as a finalist in the President’s Challenge, a Harvard University competition created to foster cross-disciplinary entrepreneurial ventures that will have profound social impact. Giant Otter is one of ten early-stage, student led teams selected as finalists that will now spend six weeks on an accelerated path to building their ventures, supported by $5,000 in seed money, insight from expert mentors, and resources from the Harvard Innovation Lab will provide. A winner will be selected on May 8th after the teams participate in a “Demo Day” event, where members of the community visit an exhibition and hear the founders explain their ventures and progress.

Giant Otter Technologies creates data-driven role-playing simulations that helps with the stressors of bullying and other conflicts by helping users relate to others in their scholastic or professional settings.

Congratulations Giant Otter!

To learn more, please visit Harvard’s President’s Challenge.

Cambridge Innovation Center to Open Office in Boston 03/14/2014

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Cambridge Innovation Center (CIC)On March 14th MBBP client Cambridge Innovation Center announced its plans to open  a third location. This new facility will be in Boston’s Financial District, giving firms a less expensive space yet more flexibility than traditional office leases. CIC has signed a lease at 50 Milk Street occupying 70,000 square-feet of space across 5 floors with the ability to accommodate nearly 1,200 people . CIC Boston is set to open to the public in phases beginning in late April. MBBP currently utilizes office space in CIC’s original Cambridge location at One Broadway in Kendall Square.

CIC provides offices and shared workspaces to start-ups and small companies offering amenities such as fully stocked kitchens, high-tech conference rooms, Internet, and decent office chairs. CIC has also been reported to serve as the initial launching pad in New England for larger companies such as Adobe, Amazon, Apple, Disney, Facebook, Google and Shell.

Congratulations CIC!

For more information, please view this full article in The Boston Globe.

MBBP to Host WBA’s Business of Law 03/14/2014

Posted by Morse, Barnes-Brown Pendleton in Events.
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Women's Bar AssociationOn Wednesday, March 19 the Women’s Bar Association’s Middlesex County Committee is presenting an event titled “The Business of Law” at MBBP’s office in Waltham. The event will provide attendees with the nuts & bolts and best practices of law firm management for the solo or small firm. An expert panel will cover a range of topics including:

  • General law firm management tips and best practices
  • Marketing strategies, options, and business generation tips for a range of practice areas
  • Billing, bookkeeping, & other practice management technology options
  • Time management tips
  • Client funds (IOLTA) management requirements
  • Staffing and temporary/contract arrangements

The event will run from 6:00 PM to 8:00 PM with a light dinner served.

To learn more or to find out how you can register, please visit the WBA.

Action Item for Smaller Reporting Companies – Update Your D&O Questionnaire 03/13/2014

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

It is proxy season for public companies with December 31 fiscal year ends. While the proxy disclosure requirements did not significantly change in 2013, there are important updates companies should make to their D&O questionnaires.

Smaller Reporting Companies (“SRCs”) should consider making the following updates:

  1. Compensation Consultants Conflicts of Interest: All reporting companies are now required to disclose in their proxy statement conflicts of interest of any compensation consultants engaged during the year to provide advice on the amount or form of executive and director compensation. SRCs should revise their D&O questionnaires to include questions regarding personal or business relationships between directors or executive officers and compensation consultants engaged by the company.
  2. Compensation Committee Independence: As described in previous posts, Nasdaq recently adopted changes to its listing standards which require compensation committee members to meet heightened independence standards. While many of these changes do not apply to SRCs, SRCs should consider updating D&O questionnaires to include questions regarding compensation committee independence in order anticipate required changes in the composition of the compensation committee in the event the company no longer qualifies as an SRC.
  3. Bad Actors: SRCs should consider including questions in their D&O questionnaires which would help the company determine whether any directors or executive officers would be considered “bad actors” under the newly adopted Rule 506(d) under Reg. D. The bad actor disqualification in Rule 506(d) would make the Rule 506 exemption under Reg. D unavailable for any private securities offering in which certain bad actors are involved.

For more information or assistance revising your D&O questionnaire please contact Daniele Levy.

Audley Travel to Open First U.S. Office in Boston 03/13/2014

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Audley TravelThe Boston Business Journal (BBJ) recently published an article regarding MBBP client Audley Travel, a full-service specialty travel agency based in England. The article highlights Audley’s plans to open its first U.S. office, a 7,000-square-foot space in Boston, aimed at servicing the entire country. Audley CEO, Ian Simkins, believes the firm’s current demands warrant an increase in its US based staff, and has already hired 27 people for the new office with plans of employing 40 by year’s end.

Congratulations Audley Travel!

Please visit the BBJ to read the full article.

Diana Española to Speak at Leadership and Management Seminar 03/13/2014

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Events.
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Tax and Business Attorney Diana EspañolaOn March 22, MBBP Tax Attorney Diana Española will be speaking at a Leadership and Management Seminar presented by the Consulate General of the Philippines for the Heads of Filipino-American Community Associations. The event is taking place at the Harvard Student Organization Center at Hilles in Cambridge, MA and is aimed at providing the heads of community organizations with fresh perspectives on leading and managing an organization, and engaging the emerging generation of Filipino-Americans.  Diana will be speaking on managing legal matters in organizations.

Please feel free to contact Diana with any questions.

Boston Business Journal Revisits Local Biotech IPO’s: “Where are They Now? 03/12/2014

Posted by Morse, Barnes-Brown Pendleton in Life Sciences, Public Companies.
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On March 7, the Boston Business Journal (BBJ) published an article titled “A year of biotech IPOs: Where is their stock price now?” which highlights fourteen local biotech companies that went public last year, ranking them by their stock increase seen since the close of their first day on the market until the March 6 close. A year ago this month, Enanta Pharmaceuticals and Tetraphase Pharmaceuticals, both of Watertown, MA, became the first two Massachusetts biotech firms to go public in what turned out to be the busiest biotech IPO boom in more than a decade.

To see the full list visit the BBJ.

Obtaining Early Biosimilar Patent Certainty in the Aftermath of Sandoz v. Amgen 03/11/2014

Posted by Morse, Barnes-Brown Pendleton in Life Sciences, Intellectual Property.
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Patent Attorney David FazzolareBy: David Fazzolare

In December 2013, the court case of Sandoz v. Amgen became the first instance in which a court has been asked to interpret the patent litigation provisions of the Biologics Price Competition and Innovation Act (the “Biosimilars Act”), the outcome of which may have significant impact on future biosimilar development.

To learn what this means for biosimilar applicants, see the full article.

Please feel free to contact David with any questions on this topic.

FDA Revises Interpretation of 5-year NCE Exclusivity 03/11/2014

Posted by Morse, Barnes-Brown Pendleton in Life Sciences, Intellectual Property.
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Patent Attorney Stan ChalvireBy: Stanley Chalvire

In an effort to incentivize the development of certain fixed-combination drug products, the Food and Drug Administration (FDA) recently issued draft guidance revising its interpretation of the 5-year New Chemical Entity exclusivity provisions of the Federal Food, Drug and Cosmetic Act (FD&C Act).

Sections 505(c)(3)(E) and 505(j)(5)(F) of the FD&C Act provide the holder of an approved New Drug Application with the benefit of limited protection from certain competition (e.g., generic competition) in the marketplace.  In particular, newly approved drug products that contain an active ingredient that has not been previously approved by FDA (a so-called “new chemical entity”) are eligible for 5-years of New Chemical Entity (NCE) exclusivity and, with one exception, during such 5-year exclusivity period, third party applications referencing the newly-approved drug cannot be submitted to FDA.

Fixed-combination drug products are combinations of two or more active ingredients in a single dosage form or drug product.  FDA has historically interpreted the 5-year NCE exclusivity provisions of the FD&C Act such that fixed-combination drug products that contained a previously-approved drug product were not eligible for 5-year NCE exclusivity, irrespective of whether such fixed-combination drug product contained a new chemical entity.

Based on FDA’s recognition of the increasing prevalence of fixed-combination drug products in certain therapeutic areas (e.g., cancer and infectious diseases, such as HIV) and the role that such combination products play in optimizing adherence to dosing regimens and improving patient outcomes, FDA has revised its interpretation of the 5-year NCE exclusivity provisions.  As a result of FDA’s revised interpretation, a 5-year NCE exclusivity determination will be made on the basis of each active ingredient in a drug product, such that a drug product that includes a new chemical entity will be eligible for 5-year NCE exclusivity, regardless of whether that drug substance is approved alone or in a fixed-combination.  FDA is soliciting comments in response to its draft guidance until April 25, 2014.

For more information or to discuss FDA’s new interpretation of the NCE provisions, please contact Stan Chalvire.

Delaware Court Grants Summary Judgment in M&A Class Action Suit 03/10/2014

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Corporate Attorney Mary Beth KerriganBy: Mary Beth Kerrigan

On February 3, 2014, the Delaware Court of Chancery granted defendants’ summary judgment motion in the matter of In re Answers Corporation Shareholders Litigation. This case related to the acquisition of Answers Corporation by AFCV Holdings, LLC. The plaintiffs alleged that three of the Board members of Answers (comprised of the company’s CEO and two outside directors designated by a venture capital investor) were conflicted and in control of the negotiation process with the buyer and the Board breached its fiduciary duties by acting in bad faith as a result of “purposely engaging in a limited shopping process”. To learn the Chancery Courts ruling and what it means for other companies engaging in a merger or acquisition, please see the full post here.

For more information on this topic, please feel free to contact Mary Beth.

Supreme Court Expands Pool of Claimants in Whistleblower Case 03/07/2014

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

On March 4, 2014, the United States Supreme Court issued its decision in a much anticipated whistleblower retaliation case. In its decision, Lawson v. FMR, LLC, No. 12-3, the Supreme Court expanded the coverage of an anti-retaliation claim under Sarbanes-Oxley Act of 2002 (SOX) to an employee of a privately-held contractor (the contractor provided investment management services to Fidelity mutual funds). Pursuant to the Dodd-Frank Act, the Securities and Exchange Commission established an award program for whistleblowers creating a new private right of action for employees in the financial services sector who suffer retaliation for disclosing information about fraudulent or unlawful conduct related to the offering or provision of a consumer financial product or service. The First Circuit had ruled that the anti-retaliation provision only applies to employees of public companies. In a 6 to 3 vote, the Supreme Court reversed the decision of the First Circuit in favor of expanding the coverage of the whistleblower statute to cover employees of a public company’s private contractors and subcontractors.

In Lawson v. FMR, the Supreme Court interpreted a provision of SOX, namely 18 U.S.C. Section 1514A protecting whistleblowers, which provides in part: “No [public] company …, or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of [whistleblowing or other protected activity].” The Supreme Court was faced with the question whether the protected class was simply limited to employees of the public company itself or would include “employees of privately held contractors and subcontractors – for example, investment advisers, law firms, accounting enterprises – who perform work for the public company?” Noting that SOX was enacted following the Enron scandal and in part in response to that scandal, the Supreme Court interpreted the statute as a response to a “concern about contractor conduct of the kind that contributed to Enron’s collapse.” As such, the Supreme Court held that a broader interpretation of the statute (to capture contractors that perform work for public companies) was warranted.

The implications of the Supreme Court’s decision are far reaching. The Supreme Court’s holding significantly expands the pool of potential whistleblower claimants. It remains to be seen whether the parade of horribles predicted by the dissent – resulting in a multitude of spurious claims – will come to fruition.

For more information on this topic please contact Joe Marrow.

Duck Dynasty or Patent Dynasty? 03/06/2014

Posted by Morse, Barnes-Brown Pendleton in Intellectual Property, New Resources.
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Patent Attorney Sean DetweilerBy: Sean Detweiler

If you are reading this because the title caught your eye, then there is a good chance that you are aware of the recently popular Duck Dynasty® television show on A&E Television Networks, which is in its 5th season as I write this article. The frequent promotion for the show states, “meet the Robertsons; they turned duck calls into a multi-million dollar empire.”What you may not realize is that the family patriarch, Phil Robertson, is also a patent holder. He is listed as the inventor on at least two patents related to duck calls.

The cost of filing for, and obtaining, patent protection is not trivial. Independent inventors, startup companies, and small companies alike all have a common issue with which to grapple at the genesis of their own developing back stories. As a patent attorney, I repeatedly hear the same question, “Should we file a patent application to cover our invention, or should we put that money into the company for manufacturing and/or marketing or other areas to build the business?” My response to these questions usually is, “What is the value of your idea?”

Mr. Robertson made the tough choice early on in a market where there were a lot of competitors making duck calls. He invested in patents when he was just starting his company and making duck calls by hand in a shed in Louisiana. So what is the value of those two Phil Robertson duck call patents? Should you patent your idea? Read the full article to find out.

For more information about how MBBP’s Patent Practice can assist you, please contact Sean D. Detweiler.

Howard Zaharoff Judges BU’s 2014 New Venture Competition Semi-Finals 03/06/2014

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Events.
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IP and Technology Licensing Attorney Howard ZaharoffOn February 28 MBBP IP and Licensing Attorney Howard Zaharoff helped judge the semi-finals of BU’s 2014 New Venture Competition. The contest is sponsored by Boston University’s Institute for Technology Entrepreneurship and Commercialization (ITEC) and is open to current and past BU students, both graduates and undergrads. Interested students and alumni participated in a fall or spring “Pitch and Pizza Competition.” The winning Pitchers went on to the second round, February’s semi-finals, which named six finalists.

These finalists will pitch their business to a panel of experts, including angel investors, and will be eligible for awards that include MBBP’s People’s Choice Award. The finals will be held on Tuesday, April 15th.

To learn more about the New Venture Competition, please visit BU’s Entrepreneurship Programs.

Howard Zaharoff Interviewed for HoGo Blog Piece 03/04/2014

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Intellectual Property.
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IP and Technology Licensing Attorney Howard ZaharoffOn March 4 MBBP IP Technology and Licensing Attorney Howard Zaharoff was featured in a blog post by HoGo, a DRM (digital rights management) platform that lets users copy-protect, distribute and manage PDF files. The blog post titled “Ten Questions with… Howard Zaharoff (Part One)” shares his legal perspective on copyrights and copy protection with readers of HoGo Blog Confidential.

Visit HoGo to see the first half of Howard’s interview.

Please feel free to contact Howard with any of your own questions on IP and Copyright law.

Jonathan Gworek Panels ABA Event on Great Hill Equity Partners Case 03/03/2014

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Venture Capital & Private Equity.
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Corporate Attorney Jonathan GworekOn January 27th, MBBP Corporate Partner and Chair of the Private Equity and Venture Capital Committee of the American Bar Association, Jonathan Gworek, moderated a webinar on the implications of the recent Great Hill Equity Partners case. In this case the Delaware Court of Chancery held that under Section 259 of the DGCL, all privileges—including the attorney-client privilege—pass from the acquired corporation to the surviving corporation in a merger.

In October, Jon moderated a similar webinar on the recent In re Trados Inc. Shareholder Litigation opinion, in which the Delaware Court of Chancery found that a sale of the venture backed company was entirely fair notwithstanding the fact that the common stockholders received none of the merger consideration.

Materials from both panel discussions can be found here.

Please feel free to contact Jonathan Gworek with any questions on these topics.

Scott Connolly Speaks at MCLE Employment Seminar 03/03/2014

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MCLE Proving & Valuing Damages in Employment Cases PanelistsOn Friday, February 28, 2014, MBBP Employment Attorney Scott Connolly served as a panel speaker at the Massachusetts Continuing Legal Education’s (MCLE) annual seminar on Proving & Valuing Damages in Employment Cases. Among the topics Scott covered from the defense perspective were whether and how to effectively use financial experts at trial, ways for defendants to avoid/minimize punitive damages, limiting emotional distress damages, and whether unemployment benefits should be deducted from back-pay awards. Other members of the distinguished panel were Honorable Peter M. Lauriat, Superior Court Justice, Eugenia M. Guastaferri, Senior Hearing Officer at the Massachusetts Commission Against Discrimination and employee-side advocates Inga S. Bernstein and David E. Belfort. Scott defends clients from employment-related lawsuits before state and federal courts and agencies.

Please feel free to contact Scott with any questions.

Employment Law Clip: Pitfalls of Using Independent Contractors 03/03/2014

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Employment.
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Many businesses use “independent contractors” to augment their regular workforce. They see advantages to using trained, non-employee workers with specialized skills who can provide needed services on a short-term or long-term basis. However, the ability of businesses to classify workers as independent contractors is not unchecked. Businesses cannot avoid employer obligations simply by designating certain workers as independent contractors.

In this video Massachusetts Employment Lawyer Robert M. Shea discusses the serious danger that independent contractors can pose to a business when they do not comply with government and tax laws and are misclassified as such:

Want more information? Try some of our other resources on this topic:

Please feel free to contact any member of our Employment Law Group with any questions on independent contractor laws.

MBBP’s Employment Law Clip Series will provide quick, easy-to-digest snapshots of common Employment issues, as well as practical information on how to avoid complicated, expensive and time-consuming pitfalls. Stay tuned for the next topic on Wage Payment Laws: Termination.

MBBP Volunteers with Building Impact 03/03/2014

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MBBP Building Impact EventOn Monday, February 3rd,  MBBP partnered with Building Impact  on an in-office event creating handmade envelopes for use and re-sale by Waltham-based charity More Than Words. More Than Words is a nonprofit social enterprise that empowers youth who are in the foster care system, court involved, homeless, or out of school to take charge of their lives by taking charge of a business.

MBBP looks forward to working with Building Impact and other nonprofits on more volunteer programs in the future!

Building Impact is a non-profit focusing on providing individuals and companies with the knowledge and opportunity to volunteer, donate, and connect in the buildings where they work or live. To learn more or to participate in your own event, please visit their website.

SEC’s No Action Letter Provides Relief to M&A Brokers 03/03/2014

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Corporate Attorney Joseph MarrowBy: Joseph Marrow

On January 31, 2014, the Securities and Exchange Commission (“SEC”) Division of Trading and Markets (the “Division”) issued a no action letter (the “No Action Letter”) providing relief to M&A Brokers (as defined below), in certain stated circumstances, engaged in the purchase or sale of privately-held companies from compliance with the registration requirements of Section 15(a) of the Securities Exchange Act of 1934 (the “Exchange Act”). By reason of the no action relief, M&A Brokers may be entitled to receive transaction-based compensation without having to register as a broker-dealer under Section 15(a) of the Exchange Act. In issuing the No Action Letter, the SEC set a number of conditions to be followed. Please see the full post for more information including the full list of conditions.

For more information on this topic, please contact Joe.

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