Shep Davidson

Shep Davidson

Burns & Levinson LLP

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Tips From the Inside: Keith Wexelblatt, Associate General Counsel, Reebok International Ltd.

In this installment of The In-House Advisor, we interview Keith Wexelblatt, Associate General Counsel at Reebok International Ltd. After being in private practice for 5 years, Keith joined Reebok as in-house counsel in 1998....more

4/4/2014 - Corporate Counsel Law Practice Management Reebok

From Up-Skirting to Up-Kilting and Beyond

Just a few weeks ago, the Massachusetts legislature enacted a statute to close a loophole in the law in order to make “upskirting” a crime. While the law appeared to have universal support, one man apparently does not think...more

4/1/2014 - Criminal Prosecution

Exercising Contractual Rights Can be Risky if it is for an Ulterior Purpose

As I discussed in “Be Cautions When Tempted to Leverage Another into an Agreement,” exerting leverage to force a business partner into settling a dispute could constitute deceptive or unfair acts or practices in violation of...more

3/31/2014 - Chapter 93A Compliance Professional Liability Unfair or Deceptive Trade Practices

Intra-Company Disputes: Implications for the Attorney-Client Privilege and Fiduciary Duties

In the course of its decision in Chambers v. Gold Medal Bakery, Inc., the Supreme Judicial Court of Massachusetts highlights a number of important rules related to the attorney-client privilege, as well as various rights and...more

3/24/2014 - Attorney-Client Privilege Fiduciary Duty Professional Liability

Don’t Lose Insurance Coverage Because You Fail to Provide Proper Notification

Most businesses have a variety of insurance coverage that they hope never to have to utilize. If and when the time does come to exercise one’s rights to the benefit of such a policy, however, the last thing any in-house...more

3/11/2014 - Corporate Counsel Duty to Defend Insurance Companies Insurance Contracts Notice Requirements

How a Company Insider Can Leave, Take Company Business and Not Breach Her Fiduciary Duty

In a previous blog post, The Fiduciary Duty of Preserving Corporate Opportunities, I wrote: In general, an officer, director, partner, LLC member or shareholder in a closely held corporation owes a fiduciary duty not...more

3/5/2014 - Breach of Duty Directors Fiduciary Duty Officers Usurped Business Opportunity

Your Trade Secrets May Be Vulnerable to “Legal” Theft

As in-house counsel, how would you like to tell your CEO: “While our customer lists, pricing information, and business processes are trade secrets, we can’t sue the independent contractor who stole them because we did not do...more

2/20/2014 - Data Protection Theft Trade Secrets

Beware of What Happens to the Attorney-Client Privilege When Your Company is Sold

In Commodity Futures Trading Comm’n v. Weintraub, the United States Supreme Court noted that: When control of a corporation passes to new management, the authority to assert and waive the corporation’s attorney-client...more

2/4/2014 - Attorney-Client Privilege CFTC Confidential Information SCOTUS

Drafting a Practical and Enforceable Non-Disparagement Provision

More than once, an in-house counsel has called me up wanting to sue a former employee because s/he has been “bad-mouthing” the company despite having agreed not to disparage the company as part of a settlement or severance...more

1/22/2014 - Corporate Counsel Non-Disparagement Provisions Restrictive Covenants Severance Agreements

Internal Investigations Can Lead to a Waiver of the Attorney-Client Privilege

As I have discussed in other blog posts, communications with in-house counsel that are not for the purpose of obtaining legal advice are not privileged. But what happens when outside counsel is hired to investigate a claim of...more

1/3/2014 - Adverse Employment Action Attorney-Client Privilege Corporate Counsel Sexual Harassment Workplace Investigations

How to Draft Enforceable Class Action and Other Employer-Friendly Waivers

Porreca v. The Rose Group was a class action lawsuit brought by Carly Porreca and Charles Walton, alleging that their employer, Applebee’s Neighborhood Grill and Bar, had violated the Fair Labor Standards Act. After Porreca...more

12/20/2013 - Applebee's Arbitration Arbitration Agreements Class Action Class Action Arbitration Waivers Contract Drafting Corporate Counsel FLSA Unconscionable Contracts Waivers

Recent New Jersey Case Highlights Several Aspects of the Corporate Attorney-Client Privilege

In Hedden v. Kean University, the New Jersey Appellate Division ruled that an email sent by the University’s women’s basketball coach to the school’s in-house counsel was privileged even though a copy also was sent to the...more

12/6/2013 - Athletes Attorney-Client Privilege Coaches Corporate Counsel NCAA Sports Students Universities

When an Out-of-State Company Can Be Sued in Massachusetts and Why You Should Care

As I discussed in a prior post, the substantive law applicable to a dispute can have a tremendous impact on its outcome. But what about the procedural law of the jurisdiction where a suit is being litigated? If that...more

11/15/2013 - Choice-of-Law Corporate Counsel Jurisdiction Out-of-State Companies

Agreements to Negotiate in Good Faith Can be Enforceable

Time-honored precedent holds that “an agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.” Thus, as I discussed in a prior post, a letter of intent (LOI) will not be...more

10/29/2013 - Enforcement Good Faith Negotiations

How an Outsider’s Presence Affects the Attorney-Client Privilege

On more than one occasion, an in-house counsel has been summoned to a strategy meeting about a potential or ongoing dispute, and when he arrives, he finds an outside accountant already seated in the conference room ready to...more

9/18/2013 - Attorney-Client Privilege Client Meetings Corporate Counsel Third-Party

Be Sure to Accept an Offer in the Manner Proscribed by the Offeror

Many businesses use standard form contracts which may or may not be negotiable by a potential business partner. It is not unusual for such a contract to include a provision like the following...more

8/8/2013 - Contract Drafting Contract Formation Offers

Limit Your Risk of Being Sued for Withholding Bonus Payments

Many companies have bonus plans that require the employee to be employed through a certain date before the right to be paid vests. If such a plan is in place, any employee terminated reasonably close to the vesting date is...more

7/25/2013 - Bonuses Employer Liability Issues Hiring & Firing Termination Wage and Hour

Seemingly Informal E-mails Can Constitute Binding Contracts

In a prior post, I discussed how a letter of intent could constitute a binding agreement even if the parties contemplated that they later would execute a full-blown contract. Last month, the Federal District Court in Boston...more

7/10/2013 - Contract Drafting Contract Formation Email Negotiations Texting

Be Clear if You Want to Have a “Third-Party Beneficiary” in Your Contract

In a prior post, I noted that if you want all disputes between contracting parties to be resolved in one and only one specific forum, it is imperative to expressly state this with great clarity in your agreement. In light of...more

6/28/2013 - Contract Disputes Contract Drafting Third-Party Beneficiaries

A Right to Match Can Provide Multiple Benefits

A client recently forwarded me an article about a lawsuit that Oakley brought against Nike and golf wonder-boy Rory McIlroy. In that suit, Oakley claims that as part of its endorsement agreement with McIlroy it had a right...more

6/5/2013 - Celebrity Endorsements Employment Contract Golf Non-Compete Agreements Oakley

In-House Counsel Need to Think Like a Litigator When Drafting Contracts

Memorializing an agreement in a written contract serves two primary purposes. First and foremost, a written contract should clearly set out the deal terms so that there is little or no chance of a misunderstanding as to what...more

4/23/2013 - Contract Drafting Corporate Counsel

“Work Spouse Privilege” Recognized by Massachusetts Supreme Judicial Court

In a closely watched case, Ayeprel v. Phules, the Supreme Judicial Court of Massachusetts formally recognized that confidential communications between so-called “work spouses” may be privileged. The 5-4 decision makes...more

4/1/2013 - April Fool's Day Work Spouse Privilege

New FTC Advertising Guidelines Are Worth a Review

In a recent post, I discussed how a company could be liable for referencing a third-party’s unbiased endorsement if, unbeknownst to that company, the basis for the endorsement turned out to be unjustified. In another...more

3/22/2013 - Advertising Disclosure Requirements Dot Com Disclosure Guide FTC Marketing Mobile Devices

Limiting Intra-Company Conversations About Disputes is Critical

When an employee talks to in-house or outside counsel for the purpose of obtaining legal advice for the company, that communication will be privileged and can be protected from disclosure. Likewise, when in-house counsel is...more

3/8/2013 - Attorney-Client Privilege Corporate Counsel US v Tedder

Re-Publishing a Third-Party’s Unbiased Endorsement Can be Perilous

It should come as no surprise that making a false statement about a competitor’s product or service is actionable. Similarly, albeit slightly less obvious, repeating a false statement that someone else makes about a...more

2/22/2013 - Competitive Speech Endorsements False Advertising False Press Release False Statements First Amendment Genzyme Pharmaceutical Republishing Scientific Speech Sherman Act Social Media

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