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Privacy for the Peeple 10/27/2015

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Legal Developments.
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Callie L Pioli Web Hi Res Crop (M0702163)The concept behind the latest app startup, Peeple,  has been trending on almost every social and mainstream media outlet for weeks and has been collectively referred to as the “Yelp for People.” The app’s purpose is to allow users to rate individuals much the way they would a restaurant: one a one-five star rating system. Users must be over the age of 21 and have a Facebook account. All reviews must be posted under a user’s real name. As originally conceived, anyone you had ever given your phone number to, or anyone who could locate it in a directory, could create a Peeple profile for you. Once your profile was created, any user can post a review of you, whether you gave them your phone number or not and regardless of whether you yourself used the application. Upon learning of the application, many have asked “how is this even legal?

MBBP’s Callie Pioli has the answer. Read the full article here.

MBBP’s John Tumilty Quoted on Fidelity Investments in NYT DealBook 10/27/2015

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M0739744On October 26, the New York Times Dealbook published an article on the administrative case filed against Fidelity Brokerage Service LLC by the Massachusetts secretary of the commonwealth, William F. Galvin. The brokerage division of Fidelity Investments has been charged with “dishonest and unethical conduct” for allowing at least 13 unregistered investment advisers to make trades on its broker-dealer platform.

MBBP Attorney John Tumilty  was asked to weigh in on the matter. Find out what he had to say here!

Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students 10/26/2015

Posted by Morse, Barnes-Brown Pendleton in Immigration, Legal Developments.
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Immigration Attorney Grant GodfreyBy: Grant W. Godfrey

On October 19, 2015, the Department of Homeland Security (“DHS”) published in the Federal Register a proposed rule that would revise work authorization for F-1 students.  The proposed rule addresses extensions of F-1 post-completion Optional Practical Training (“OPT”) for foreign students who have completed U.S. degree programs in the fields of Science, Technology, Engineering, or Mathematics (“STEM”).  The proposed rule, if enacted as published, would replace the current STEM OPT regulations that were invalidated by court decision  in August 2015 on procedural grounds. To mitigate potential harm to foreign students and their employers, the court stayed its judgment for six months, i.e. until February 2016, to give DHS time to promulgate new regulations in accordance with the Administrative Procedures Act.

The proposed rule stays within the spirit of the rule that has previously been in effect, with a few twists.  Highlights include:

  • The STEM OPT extension of work authorization will be increased from 17 months to 24 months;
  • F-1 students who have graduated from a non-STEM degree field, but previously received a STEM degree in the U.S., may be able to use the STEM OPT extension if they meet certain eligibility criteria;
  • The employer must draft a formal mentoring and training program and submit it to the school before the F-1 student can apply for the STEM OPT extension.  The program needs to include formal evaluations and those evaluations must be submitted to the school prior to the conclusion of the STEM OPT program;
  • The employer will need to attest that: (1) the duties, hours, and compensation of the student will be in line with similarly situated U.S. workers; (2) it has sufficient resources and personnel to carry out the training program; (3) it will not terminate, lay off, or furlough any U.S. workers as a result of the program, and (4) the job opportunity furthers the training that the student received in the degree program;
  • The employer must be registered on E-Verify; and
  • Some of the students who are currently employed using the current 17 month STEM OPT extension will be allowed to apply for the extra seven months of employment authorization if they otherwise meet the requirements under the new program.

DHS will accept comments on the proposed rule until November 2015.  They will then need to review the comments, draft a final rule, and publish the final rule at least 60 days before it becomes effective.  We will provide updates when the final rule is published.  In the meantime, please do not hesitate to contact a member of our Immigration Team with any questions.

MBBP Welcomes Four Associates 10/26/2015

Posted by Morse, Barnes-Brown Pendleton in Attorney News, MBBP news.
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MBBP is pleased to announce that Jamie N. DaltonMatthew R. LoeckerErin E. Bryan, and Erik S. Thompson, have joined the firm as associates.

M0846544Jamie is a member of our burgeoning litigation department, representing clients in all aspects of litigation, from the investigation of disputes through discovery, trial and appeal. She has significant experience in state and federal courts, as well as in alternative dispute resolution avenues such as mediation. A graduate of Harvard College (A.B.) and of Northeastern University School of Law (J.D.), Jamie interned during law school with Judge Patty Saris of the U.S. District Court for the District of Massachusetts.

MattM0846580 brings to our corporate practice his considerable experience representing a wide range of emerging and middle market companies in all stages of the business life cycle, and has a particular expertise in the areas of mergers and acquisitions and venture financing. He has counseled some of the country’s leading corporations and private equity firms on complex domestic and cross-border leveraged buyouts and corporate restructuring. Matt is a graduate of Hamline University (B.A.) and Cornell Law School (J.D.).

A Registered Patent Attorney, Erin handles a broad range of intellectual property issues in a number of technical areas. She works with a variety of clients, including universities, research organizations and start-ups in the chemical, pharmaceutical and biotechnology areas. She is also proficient in patent prosecution and provides assistance with various phases of IP litigation and counseling. Erin is a graduate of Worcester Polytechnic Institute (B.S., M.S.) and Suffolk University Law School (J.D.).

Erik provides services to a range of clients, including emerging businesses and private investment funds, and advises them on mergers and acquisitions, issuances of ISOs and equity options, and regulatory compliance. He also serves as outside counsel to numerous companies, attending Board meetings and advising them on corporate actions. A “Double Eagle” (Boston College, B.A.; Boston College Law School, J.D.), Erik served as the Executive Comment Editor of B.C.’s Journal of Law and Social Justice.

We invite you to contact JamieMattErin and Erik directly.

MBBP Co-Hosts Boston Innovation Start-Up Tour 2015 10/20/2015

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22249848936_72bdfc64e2_oEarlier this month, MBPP’s Robert Finkel co-hosted the Boston Innovation Start-Up Tour 2015, a three-day event organized by the IE-Club and the MIT Club of France. The Tour group of French entrepreneurs routed MIT Media Lab and CIC,  and attended  presentations, Q&As, and HUBweek events.

MBBP Attorney to Present at MCLE’s 33rd Annual Business Law Conference 10/20/2015

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Attorney Jonathan GworekOn October 28, MBBP corporate partner Jon Gworek will be among presenters at MCLE’s 33rd Annual Business Law Conference. Jon will provide an overview of the state-of-play regarding convertible notes, SAFE, and simplified series “seed” preferred stock financings. He will also discuss emerging trends of note in M&A for venture backed technology companies.

The Conference will be broadcast live on October 28, from 12:00 noon – 5:00 p.m.

To learn more or to register for this event, please contact Jon Gworek.

MBBP Attorney Leads Private Equity and Venture Capital Committee at ABA Business Law Annual Meeting 10/20/2015

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Start-Up Attorney Jonathan GworekIn September, the Private Equity and Venture Capital Committee of the ABA‘s Business Law Section met in Chicago at this year’s annual meeting. As chair of the ABA‘s PEVC Committee, MBBP corporate partner Jon Gworek was integrally involved in the planning of the committee’s activities and chaired the full committee meeting in Chicago which included a discussion with the Honorable J. Travis Laster, Vice Chancellor of the Delaware Chancery Court.  The PEVC Committee also sponsored two CLE events; “The Spectrum of Private Equity: From Venture Capital to Mezzanine and Everything in Between”, and “Cross-Border Private Equity and Venture Capital Transactions”.

To learn more, please contact Jon Gworek.

The Contours of Copyright #1: Can You Copyright Fast Foods? 10/19/2015

Posted by Morse, Barnes-Brown Pendleton in Intellectual Property, Legal Developments, New Resources.
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Attorney Howard ZaharoffBy Howard Zaharoff

As broad and creator-centric as copyright is, it doesn’t protect every creative output. For example, as a recent case confirmed – to no one’s surprise (probably not even the plaintiff’s) – copyright does not protect chicken sandwiches, nor even chicken sandwich recipes, nor even chicken sandwich names, no matter how original.

The conflict began after Noberto Colón Lorenzana, while employed by a Puerto Rican fried chicken chain, invented the “Pechu” chicken sandwich. Ultimately his employer greatly benefited from sales of the sandwich and various derivative items, but never compensated Mr. Colon for these remunerative products. Feeling he’d been cheated, Mr. Colón filed an amorphous set of trademark, fraud and (the district court generously found) copyright claims.

After ruling against Mr. Colón’s trademark claim – having never used the mark, he had no trademark rights to infringe – the court considered his assertion of copyrights in his sandwich. After quoting Section 102(a) of the Copyright Act, to the effect that copyright does not protect ideas or inventions, but only works of authorship, and remarking that the Register of Copyright specifically denies copyright to “mere listings of ingredients,” the court stated: “Neither plaintiff’s idea for the chicken sandwich recipe or the name ‘Pechu Sandwich’ is subject to copyright protection.”

To drive home its message, the court proceeded to note that neither the idea for the sandwich, nor its recipe, nor the concept of serving a chicken sandwich at a fast food restaurant, nor even the term “Pechu Sandwich,” were subject to protection by copyright (regarding the last, the court quotes several cases to the effect that copyright does not protect fragmentary words or short phrases).  In short, to the extent the plaintiff was raising a copyright claim – not clear from the proceedings – it was “dismissed with prejudice.”

The case was appealed to the First Circuit, which upheld the district court’s holdings. Regarding the copyright claim, the appeals court noted that neither the recipe nor the name fits any of the categories of eligible works and endorsed the district court’s finding that “a chicken sandwich is not eligible for copyright protection.”

So eat your hearts out, designers of designer-sandwiches and other food products … and be happy that, if you do, you’re not infringing anyone’s copyrights.

Stay tuned for more examples of what copyright does not – and does – protect.

For more information on this topic, please contact Howard Zaharoff.

MBBP Clients Among Rev Boston’s Honorees – 20 Women in Tech You Need to Know 10/15/2015

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Rev Boston1*DDrz8nII38ItJZBHLbQlXw, an exclusive two-day bootcamp hosted by venture firm Accomplice and Diane Hessan, CEO of Startup Institute, has announced its honorees – the top 20 female business leaders in Boston – invited to participate in leadership training workshops.

Among the 20 honorees are Janet Commons of MBBP Client Promoboxx and Megan Hall of MBBP Client Iora Health.

Congratulations to all!  Read more and view the full list of honorees here!

MBBP Upcoming Exclusive Event – The JOBS Act: What You and Your Company Need to Know 10/15/2015

Posted by Morse, Barnes-Brown Pendleton in Events, Legal Developments, MBBP news.
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morseThe Jumpstart our Business Startups Act, commonly referred to as the “JOBS Act,” was signed into law in 2012 as a way to incentivize funding of United States emerging growth companies by easing various securities regulations.

Please join MBBP and Marcum on Thursday, November 12, for a discussion on the new MarcumLogorules and the impact this law has had on the equity crowdfunding and startup community since its inception, and how this may affect you and your company. CPE credits will be offered. 

We hope you can join us for this exciting event. Attendance is free, but seating is limited. To register today, click here.

MBBP Attorney to Discuss Judicial Developments Pertaining to Venture Capital at ABA WebEx Meeting 10/14/2015

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Corporate, Events.
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Corporate Attorney Scott BleierOn Friday, October 23 from 1-2pm, MBBP Corporate Attorney Scott Bleier will sit as one of four panelists at a WebEx meeting hosted by the Private Equity and Venture Capital Committee of the American Bar Association. The panelists will discuss important cases that are to be featured in the upcoming Annual Survey of Judicial Developments Pertaining to Venture Capital.

For the first time ever, the Annual Survey will be a featured article in The Business Lawyer, the very influential and widely read publication of the ABA that it is published on a quarterly basis each year.

Scott’s article, a case study of In Re Nine Systems Shareholders Litigation,  will be published this month in the newest issue of The Business Lawyer.

To learn more or to register for this event, please feel free to email MBBP directly.

M&A Video Clip – Escrow: Common Issues in M&A Transactions 10/14/2015

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Corporate, M&A.
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In the fifth video of MBBP’s M&A Clip Series, M&A Attorney Joe Marrow discusses escrow (or a hold back) which is common in most merger and acquisition transactions.


MBBP Client Unshrinkit Named as Top 26 MassChallenge Finalist 10/14/2015

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download (3)MassChallenge has named MBBP Client Unshrinkit as one of 26 finalists for its 2015 Boston startup accelerator program. From the top 26, a panel of judges will award between 10 and 20 startups equity-free, non-dilutive grants of either $50,000 or $100,000.

Congratulations Unshrinkit!

For more information on the competition, please visit MassChallenge.

Client Alert: 4,500 Companies Reeling as EU’s Highest Court Invalidates Safe Harbor 10/13/2015

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client alertLast week, on October 6, the Court of Justice of the European Union (“CJEU”) issued a binding judgment invalidating the European Commission Decision that authorized the EU-U.S. Safe Harbor arrangement.  For the past fifteen years, this arrangement has been relied upon by many businesses to transfer personal data from the European Union to the United States in compliance with the EU Data Protection Directive. As a result of the CJEU’s judgment, self-certification under the Safe Harbor framework is no longer sufficient to comply with the Directive.

The CJEU judgment creates uncertainty for U.S. companies processing or storing EU data.  Without the protection of the Safe Harbor, U.S. organizations must take steps to ensure that any transmission of personal data from the European Union to the United States is carried out in compliance with the Directive.

The judgment also has implications for the European Union’s current efforts to reform the Directive and the U.S.-EU negotiations for a revised U.S.-EU Safe Harbor framework.

To learn more, please read the full Alert. Please do not hesitate to contact Morse, Barnes-Brown, and Pendleton’s privacy and data security team if you would like to discuss options for your business in light of this decision.

MBBP Attorneys to Present at Upcoming Program, “Constructing a Solid Provisional Patent” 10/13/2015

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Patent Attorney Sean DetweilerOn Monday, October 19, Registered Patent Attorneys Sean D. Detweiler and Dr. Stanley F. Chalvire will present at a program hosted by TechSandBox for its Life Sciences SIG, “Constructing a Solid Provisional Patent.” Joining Sean and Stan are two Life Science CEOs. Learn from them first hand and save time, money, and anguish!

To learn more or to register for the event, please visit TechSandBox.

Patent Attorney Stan Chalvire

MBBP Attorney to Host Office Hours at TechSandBox on October 20, 2015 10/08/2015

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Events, Intellectual Property.
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IP and Technology Licensing Attorney Howard ZaharoffOn Tuesday, October 20th MBBP Attorney Howard Zharoff will host Office Hours at TechSandBox, providing legal guidance on topics that include licensing, partnering, and copyright, as well as on general business matters. These pro bono sessions give you access to experts in topics such as intellectual property, business formation, benefits, taxes, marketing, sales funding, IT and technology commercialization. Access is offered to Members and Non-members as space allows.

Sign up today to reserve your time slot by visiting TechSandBox!

“CFO Peer to Peer Networking: What’s in Your Next Term Sheet?” with MBBP’s John Hession 10/06/2015

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On Wednesday, October 21, from 7:30-9:30 am, MBBP Attorney and investor John Hession and Angel Investor Christopher Mirabile will discuss the current environment for raising angel and venture capital in New England at Katz, Nannis + Solomon’s event, “CFO Peer to Peer Networking: What’s in Your Next Term Sheet?” John will field questions from the KNS Peer to Peer CFO group about term sheets for early-stage companies, pre-money valuations, current deal structures, and early stage capital markets.

For more information, visit Katz, Nannis + Solomon, or contact Attorney John Hession directly.

M&A Video Clip – HSR Act and Timing Issues 10/05/2015

Posted by Morse, Barnes-Brown Pendleton in Corporate, Legal Developments, M&A, New Resources.
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In the fourth video of MBBP’s M&A Clip Series, Corporate attorney Mark Tarallo addresses HSR Act and timing issues related to closing an M&A transaction.


Did you miss last week’s topic? No problem. Check our archive.

BlueMetal Acquired by Insight 10/05/2015

Posted by Morse, Barnes-Brown Pendleton in Client News, Deal News, M&A.
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bluemetal-logoMBBP Client BlueMetal Architects, Inc., an interactive design and technology architecture firm based in the Boston area, was acquired in a merger transaction by Insight Enterprises, Inc.  a Fortune 500 company based in Phoenix, AZ.

MBBP has served as counsel to BlueMetal since its inception in 2010,  and advised it in connection with the structuring, negotiation and documentation of this merger. Mark Tarallo was lead attorney for the transaction.

For more information, read the full news release here.

MBBP Client LeadGnome Earns Top Marketing Tools of 2015 Award 10/01/2015

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LeadGnome Logo (M0841051)MBBP Client LeadGnome was among the Top Marketing Tools of 2015  award winners selected by Nancy Nardin’s Smart Selling ToolsLeadGnome was recognized as a leader in Account Based Marketing for its innovative web service that mines email for targeted contacts and actionable business intelligence.

Congratulations LeadGnome!


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