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NLRB Says It’s Unlawful for Employers to Prohibit Defamatory or Inappropriate Comments by Employees 03/31/2015

Posted by Morse, Barnes-Brown Pendleton in Employment, New Resources, Public Companies.
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2015-01-05_8-57-41On March 18th, the National Labor Relations Board (NLRB) released some valuable guidance on language employers should and should not consider including in their employee handbooks. Given the broad reach of the recent handbook rulings, and the many policies to which these decisions may apply, all employers should review their handbooks and relevant policies for compliance with the NLRA.

Please see this month’s Employment Law Alert to learn more.

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

Infringement v. Homage: Pharrell Williams, et al. v. Bridgeport Music Inc., et. al. 03/30/2015

Posted by Morse, Barnes-Brown Pendleton in Intellectual Property, Legal Developments, Licensing & Strategic Alliances, Publishing & Media.
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By: Callie L. Pioli

Callie L. PioliThe music industry did not get far into 2015 before delivering a blockbuster copyright case. Pharrell Williams’ and Robin Thicke’s 2013 hit Blurred Lines was in fact only 50% their hit, according to a jury verdict in mid-March that found in favor of Marvin Gaye’s children.  As co-owners of his original 1977 hit, Got to Give it Up, Gaye’s children successfully argued that Williams and Thicke had copied numerous aspects of their father’s song and had infringed the copyright in the 1977 hit. The jury accepted the Gaye family’s contention that if Got to Give It Up had been properly licensed, the family would have received royalties of 50% of the $8 million in Blurred Lines revenue. Additionally, Williams and Thicke were forced to surrender $3.4 million of their earned profits from Blurred Lines sales.

Ironically, the lawsuit was commenced by Williams and Thicke themselves, who originally sought a preemptive ruling that Blurred Lines “shared no similarities”[1] with Got to Give It Up after receiving complaints from members of the Gaye family. The Gayes, as defendants, successfully litigated a counter-claim, arguing that the songs were substantially similar and that they were owed $25 million in royalties, profits, and statutory damages. Williams and Thicke lived up to their reputations as performers while on the stand, doing their best to persuade the jury to re-interpret copyright law as excluding the “feel” or “sound”[2] of music, and taking the opportunity to sing to the jury.

While much has been made of the spotlight on Thicke’s admitted drug use in the studio, the blatantly inconsistent statements regarding exactly how much influence Gaye had on Williams and Thicke during the writing process, and the whopping total award of $7.3 million to the Gaye family, the suit also illustrated the importance of both copyright compliance and honoring fiduciary duties. Continue reading…

Any interested “ordinary observers” can listen to a direct comparison of Blurred Lines and Got to Give it Up online.

For more information on copyright law and intellectual property licensing, please contact Callie Pioli or any member of our copyright group.

[1] Complaint for Declaratory Relief at ¶ 1, Pharrell Williams, et al. v. Bridgeport Music Inc., et. al., No. 13-06004 (N.D. Cal. Aug. 15, 2013).

[2] Id. at ¶ 2.

Tax Alert: Massachusetts 2015 Limited Tax Amnesty Program 03/20/2015

Posted by Morse, Barnes-Brown Pendleton in Client News, Taxation.
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Tax Attorney Robert FinkelTaxpayers who have received a Tax Amnesty Notice from the Massachusetts Department of Revenue (DOR) may be eligible to participate in a 60-day Amnesty Program. Under the Amnesty Program, the DOR will waive certain penalties (and penalty interest) if an “eligible” taxpayer makes full payment of all tax and interest due for the taxes and tax periods listed on the Tax Amnesty Notice.

In addition to paying tax and interest in full, participants must agree to waive both the possibility of receiving any refund Tax Attorney Diana Espanolaand also the possibility of contesting liability for amounts paid pursuant to the Amnesty Program.

The Amnesty Program ends on May 15, 2015.

Read our full Tax Alert to learn more about the Amnesty Program. To learn how our Tax team can assist you, please contact Robert Finkel or Diana Española.

MBBP Client OtoSense Earns Top Award at GSMA Global Mobile Awards 03/12/2015

Posted by Morse, Barnes-Brown Pendleton in Clean Tech, Client News, Computer Software & Hardware, Intellectual Property, Manufacturing, Retail & Service, New Resources, Public Companies.
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2015-03-12_9-40-31MBBP client OtoSense, a Cambridge-based start-up, has recently been recognized for its sound recognition technology. The company has developed an app that enables hearing impaired end users to select various traditional sounds such as bells, alarms, timers, etc. that occur within an everyday environment and then identify such sounds as they occur and alert the end user via non-acoustic means such as flashes, vibrations or text messages. Selected out of more than 800 entries and judged by a panel of international experts, the start-up won the “Best Mobile App of the Year” Global Mobile Award, in the category of Accessibility & Inclusion, at the 20th annual GSMA Global Mobile Awards.

Well done, OtoSense!

You can view a full list of 2015 Global Mobile Award winners here.

United States Completes Hague Agreement Deposit For Industrial Designs   03/10/2015

Posted by Morse, Barnes-Brown Pendleton in Intellectual Property, Legal Developments, New Resources, Public Companies.
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chalvireBy: Stan Chalvire 

Currently, design patent applicants that wish to pursue international protection for their industrial designs must file a design patent application in each country, and such applications must generally be filed within six months of the date of the earliest filed design patent application.  That is about to change with the United States having recently deposited its instrument of ratification to the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs (the “Hague Agreement”), marking the final step in the process of the United States becoming a member of the Hague Union.  The Hague Agreement establishes an international registration system which facilitates the protection of industrial designs in member countries by way of a single international design patent application that can be filed either directly with the International Bureau of the World Intellectual Property Organization (WIPO) or indirectly though the applicant’s member country.

When the Hague Agreement enters into effect for the United States on May 13, 2015, applicants will have the opportunity to register up to 100 industrial designs in over 64 territories with the filing of a single standardized international design patent application, thus providing applicants the opportunity for increased filing efficiencies and potential costs savings as they pursue international protecting of their industrial designs.

 

Additional information on this topic can be found on our blog, or feel free contact Stan Chalvire directly.

An Overview of Rule 10b5-1 Trading Plans 03/05/2015

Posted by Morse, Barnes-Brown Pendleton in New Resources, Public Companies.
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By: Joe Marrow

Corporate Attorney Joseph MarrowOfficers, directors and other insiders (“Company Insiders”) of publicly-traded companies use Rule 10b5-1 Trading Plans (a “10b5-1 Plan”) to buy and sell company stock at predetermined times so that such trading activity may occur regardless of whether the Company Insider is privy to material nonpublic information at the time of the trade.  The SEC introduced 10b5-1 Plans in 2000 to permit Company Insiders to adopt a written trading plan to buy and sell company stock.  A 10b5-1 Plan is generally structured as a contract between a Company Insider and his or her broker.  The Company Insider must adopt the 10b5-1 Plan at a time when the Company Insider is not in possession of material non-public information.  A 10b5-1 Plan must meet several requirements:

  • It must be adopted when the Company Insider is not in possession of material non-public information;
  • It must specify the amount of shares to be traded, the price at which the shares are to be traded (which can include a range of prices and a limit price) and specific dates of the trades, or alternatively, it can provide a formula for determining the amount, price and dates; and
  • It must delegate to the broker the sole right to exercise control over the trading activity as long as the broker does not have knowledge of material non-public information at the time of the trade.

If the 10b5-1 Plan has been properly adopted, it provides the Company Insider with an affirmative defense to illegal insider trading and a means for discretionary selling.  Not all public companies allow 10b5-1 Plans; however, many public companies consider such plans an effective method of dealing with concerns raised by the public regarding trading by Company Insiders.  In considering whether to allow the adoption of such plans, companies should consider the following best practices that have developed surrounding 10b5-1 Plans:

  1. After adoption of the 10b5-1 Plan, but prior to allowing trading, the 10b5-1 Plan should establish a waiting period (30 to 90 days) before trading activity may commence;
  1. A public company should establish a policy only permitting adoption of a 10b5-1 Plan when a Company Insider is not aware of material nonpublic information (i.e., an open window);
  1. A public company should consider a minimum duration pursuant to which a 10b5-1 Plan must be kept in place (six months to two years to avoid market timing and to avoid risk to the Company Insider) or otherwise require preapproval of a cancellation of such 10b5-1 Plan (or require that such 10b5-1 Plan be terminated during an open trading window) to avoid allegations of bad faith;
  1. A public company should carefully consider whether to publicly announce the establishment of a 10b5-1 Plan – the markets will become aware of it in connection with ordinary course Section 16 filings so there may be a public relations benefit to announcing the 10b5-1 Plan at the time of its adoption; and
  1. A public company should consider implementing general oversight of 10b5-1 Plans by company counsel or a compliance officer.

Well constructed 10b5-1 Plans and corporate policies surrounding such plans can be effective tools to avoid and combat insider trading claims.  Careful consideration should be given prior to permitting the use of 10b5-1 Plans and in implementing corporate governance policies related to such plans.

Any questions regarding this topic, please feel free to contact Joe Marrow.

Upcoming Boston IE Club Panel at Venture Cafe 03/05/2015

Posted by Morse, Barnes-Brown Pendleton in Corporate, Events, Legal Developments, New Resources, Public Companies.
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2015-03-03_10-20-57On Wednesday March 11, 2015, Innovation & Enterprise Business Club (The IE Club) will host an event entitled “Successful Partnerships Between Large And Small Companies Building Great Success With… Very Different Teams Working Together: How To Make It Work”. The panel will feature several CEOs of small companies sharing their views of company best practices, as well as practices to avoid (internet/enablers/innovative services). This event will be held at the Venture Cafe at the Cambridge Innovation Center from 5:30 pm – 8:00 pm, and is complimentary.

Moderator:

David Feinberg, Esq. Feinberg Hanson LLP

Panel:

Robert Kalocsai, Founder, Software Continuity
Bernard Haurie, General Manager, Geopost
Ann Halford, Executive Director of Digital Technology, Boston University
Daniel Behr, CEO at Slips Technologies

 

MBBP’s Robert M. Finkel is a board member of IE Club of Boston. To learn more or to register for the event, please visit The IE Club.

Insights on Corporate Venture Capital 03/04/2015

Posted by Morse, Barnes-Brown Pendleton in Corporate, Legal Developments, New Resources, Public Companies, Venture Capital & Private Equity.
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Corporate Attorney Scott BleierLast week, MBBP’s Scott Bleier attended a panel discussion hosted by the Johnson & Johnson Boston Innovation Center, which featured three corporate venture capitalists from Sanofi-Genzyme Bioventures, Boehringer Ingelheim Venture USA Inc. and Johnson & Johnson Development Corp.  In a very informative and candid discussion, the panelists shared the investment philosophies behind their companies’ CVC funds, what issues they consider when making an investment and their insights for start-ups seeking access to CVC funding.  The panel revealed several points of apparent consensus in the CVC community while also highlighting a divergence of philosophical approach in certain important areas.

To learn more about the panel discussion regarding CVC funds, please visit our VCs and Start-Ups blog.

Exciting Development Regarding H-4 EADs 02/27/2015

Posted by Morse, Barnes-Brown Pendleton in Employment, Immigration, Legal Developments, New Resources.
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IAIn light of the latest development from the Department of Homeland Security allowing H-4 spouses of certain H-1B workers to apply for employment authorizations,  we have compiled a list of important FAQs to help employers, and their employees, understand the implications of this new regulation.

To learn about the FAQs regarding  H-4 EADs , and how this new development will affect you, please read our full alert.

 

Forging Successful Strategic Alliances for Life Sciences Companies 02/25/2015

Posted by Morse, Barnes-Brown Pendleton in Corporate, Licensing & Strategic Alliances, Life Sciences, M&A, New Resources, Public Companies.
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M0744200When entering into an exclusive licensing arrangement, the odds of success are against most companies. Typically within the first twelve months of an arrangement, 2/3 of all alliances crumble.  If these ventures are so prone to failure, what preventative measures can a company employ to ensure success?

To learn how to achieve success when entering an alliance, read John Hession’s full article.

MBBP Ranked “Best Law Firm” in Boston by U.S. News and Best Lawyers 02/24/2015

Posted by Morse, Barnes-Brown Pendleton in Litigation, MBBP news, Taxation.
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BLF-Metro-Tier-1-2014-Tax-LawBLF-Metro-Tier-1-2014-Litigation-TaxU.S. News and Best Lawyers, the leading survey of lawyers worldwide, have joined to rank more than 12,000 firms in 120 practice areas in 174 metropolitan areas and 8 states. Morse Barnes-Brown & Pendleton P.C. has received a Tier 1 ranking of Boston’s “Best Law Firm” 2015 in two practice areas: Tax Law and Litigation-Tax. The U.S.News – Best Lawyers “Best Law Firms” rankings are based on an evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.

MBBP is proud of our impressive tax department. Please feel free to contact the members of our team with any tax-related questions.

 

Tips for Caring for Your Patent Garden During Economic Winter 02/20/2015

Posted by Morse, Barnes-Brown Pendleton in Intellectual Property, New Resources.
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Illustration - SLV058H (M0003309)There’s snow on the ground, snow on the MBTA tracks, snow on the roofs….it feels like winter will never end!  But inevitably it will, and we’ll once again have warm spring breezes, singing birds and blooming tulips to refresh our spirits.  In the meantime, while your real garden sleeps beneath the snow, this is the perfect opportunity to consider tending your patent garden to ensure that it flourishes for years to come.

Here are 5 tips from Patent Attorney Lisa Warren. Feel free to contact Lisa with questions about your patent portfolio.

MBBP Client Demiurge Studios Acquired by SEGA Networks 02/20/2015

Posted by Morse, Barnes-Brown Pendleton in Client News, Computer Software & Hardware, Games & Interactive Entertainment, Intellectual Property, Legal Developments, Licensing & Strategic Alliances, New Resources, Public Companies, Publishing & Media.
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2015-02-19_10-29-40MBBP Client Demiurge Studios, an independent game developer out of Cambridge, Massachusetts, has been acquired by SEGA Networks, a multinational video game developer, publisher, and hardware development company. Founded in 2002, Demiurge Studios made the transition into mobile gaming in 2008 and found success with Marvel® Puzzle Quest™, a top 100 grossing app on the App Store and top 50 grossing apps on Google Play. Previously, they worked with world-class developers like BioWare™ and Irrational Games™ on AAA console and PC games, contributing to titles such as BioshockBorderlands, and Mass Effect. Demiurge Studios will continue to make games under the Demiurge Studios name.

Morse, Barnes-Brown & Pendleton serves as counsel to Demiurge Studios, and advised it in connection with the structuring, negotiation and documentation of this transaction.

Joe Martinez was the lead corporate attorney on MBBP’s team, which also included attorneys Mike Cavaretta, Diana Española and Hillary Peterson.

To learn more, read the full press release.

Employment Attorney Scott Connolly authors Chapter in MCLE Book 02/17/2015

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Employment, New Resources.
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Scott Connolly, a partner in MBBP’s Employment Law Group, authored the chapter “Policies to Guide Employee Conduct and Respond to Misconduct” in MCLE’s book Drafting Employment Documents in Massachusetts (3rd Edition 2015). The book is published by MCLE and is an essential resource for Massachusetts employers, employment attorneys, and human resources professionals.

To learn more about what Scott’s chapter covers regarding employment, head over to our Employment Blog.

Attention: File H-1B Visas Early 02/09/2015

Posted by Morse, Barnes-Brown Pendleton in Employment, Immigration.
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Immigration Alert

On April 1st the 2016 H-1B cap will open. As the economic conditions continue to improve the demand for H-1B visas will likely vastly exceed the available supply.  Last year, over 172,000 cap subject H-1B petitions were filed in the first week of April, which lead to a series of lotteries to determine which petitions would be accepted for processing. It’s projected that this year’s cap will reach its limit in the first week as well.

For information on H-1B visas and when to consider filing a petition read the full alert.

MBBP Welcomes New Member John Tumilty 02/06/2015

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Litigation.
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M0739744MBBP is pleased to announce that John Tumilty has joined the firm as a member and Chair of the Firm’s Business Litigation Group. John has handled numerous complex business disputes for companies, partnerships, and individuals involved in litigation, arbitration, and mediation concerning issues ranging from ongoing management and operational issues to contractual, licensing, and dissolution issues. He has substantial experience successfully representing clients involved in a variety of commercial litigation matters involving breach of contract, unfair trade practices, breach of fiduciary duty, fraud, and misrepresentation claims.

Prior to joining MBBP, John practiced at Edwards Wildman, where he was a member, and former Co-Chair, of the Firm’s Commercial Litigation Practice Group. John earned a BA in political science from Boston College, and his JD from Suffolk University Law School, where he was a member and editor on the Law Review.

Please feel free to contact John Tumilty directly.

Insider Trading Prosecutions Going Forward: The Fallout from Newman 02/06/2015

Posted by Morse, Barnes-Brown Pendleton in Legal Developments, New Resources, Public Companies.
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Corporate Attorney Mark TaralloBy: Mark Tarallo 

In its recent decision in United States vs. Newman, the Second Circuit Court of Appeals imposed a significant burden on prosecutors bringing insider trading cases.  The Court articulated that in an insider trading case, the prosecution must prove that:

  • the corporate insider was entrusted with a fiduciary duty
  • the corporate insider breached his fiduciary duty by (a) disclosing confidential information to a tippee (b) in exchange for a personal benefit;
  • the tippee knew of the tipper’s breach, that is, he knew the information was confidential and divulged for personal benefit; and
  • the tippee still used that information to trade in a security or tip another individual for personal benefit.

The ruling makes it difficult, if not impossible, to prosecute remote tipees, who learn the insider information from someone other than the corporate insider who makes the original disclosure of confidential information.  Given how difficult this standard will be to meet, it is not surprising that the prosecution has appealed the decision.  US Attorney Preet Bharara’s office has both asked the three judge panel that issued the Newman opinion to rehear the case, and has requested that the entire US Second Circuit Court of Appeals to review the case en banc.   A narrowing or reversal of the Newman ruling is critical to the efforts of prosecutors to continue to bring insider trading cases.

The Newman ruling has already had a negative impact on recent cases.  A federal judge sitting in the U.S. District Court in Manhattan vacated the guilty pleas of four men charged with insider trading relating to IBM.  Citing Newman as controlling law, Judge Andrew Carter ruled that the guilty pleas must be vacated based on the new standards for insider trading (although he did not go as far as dismissing the charges outright).

For additional information on this topic, please feel free to contact Mark Tarallo.

MBBP Client Forge Worldwide Wins “Sweet” Partnership with Friendly’s 02/05/2015

Posted by Morse, Barnes-Brown Pendleton in Client News, Industries, Internet and E-Commerce, Public Companies, Publishing & Media, Telecommunications & Networking.
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forgelogoMBBP would like to congratulate client Forge Worldwide, a Boston-based advertising agency, for winning a partnership with Friendly’s Ice Cream.  Forge Worldwide will now oversee all television, radio, print and out-of-home advertising for Friendly’s as well as provide support to the Friendly’s team as it focuses on its re-brand and resurgence in core markets. Some other clients Forge Worldwide works with include Cisco, Rockland Trust, Brigham and Women’s Hospital, and Dragon Speech Recognition Software.

 

You can read the full announcement here.

Well done, Forge Worldwide!

Does your employee handbook include the recent changes? 02/05/2015

Posted by Morse, Barnes-Brown Pendleton in Employment.
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Recent legal developments require changes in some employer policies and it’s time you reviewed these to be sure you’re not putting your company at risk for liability.

Read our full advisor for all the details.

Reminder: Schedule 13G Amendments and Forms 5 due February 17, 2015 02/05/2015

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

Significant stockholders of public companies have ongoing reporting obligations under Sections 13 and 16 of the ’34 Act.

  • Beneficial owners of greater than 5% of a registered class of stock of a public company must disclose their ownership by filing a Schedule 13D. Certain stockholders may instead file the abbreviated Schedule 13G provided their ownership does not exceed 20% and they meet certain other requirements.
  • Owners of greater than 10% of a registered class of stock of a public company must disclose all transactions in company securities under Section 16 within two business days of the transaction. Reporting of certain transactions – such as gifts – may be delayed until the end of each calendar year and reported on Form 5.

Amendments to Schedule 13G and Forms 5 are due on February 17, 2015 (45 days after the end of the calendar year, plus a few extra days due to the President’s Day holiday).  These filings are required in order to disclose any changes in ownership during the past year or any transactions in company securities during the past year which were not previously disclosed.

Keep in mind that while changes in ownership may result from actions at the company level – such as option vesting or option grants – the obligation to make these filings is the responsibility of the individual stockholder.

For help determining whether you are required to submit a filing please contact Daniele Levy.

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