Gesmer Updegrove LLP

A New Era In Massachusetts Noncompete Law

by Lee Gesmer on August 12, 2018

A New Era In Massachusetts Noncompete Law

The Massachusetts Legislature has attempted to pass legislation regulating noncompete agreements every year since 2009. This year, it finally succeeded. The new law, which Governor Baker signed on August 10, 2018 and which is effective October 1, 2018, makes important changes to the body of Massachusetts non-compete “common-law” that has evolved over decades in the courts.

Here are the highlights of the new law.

Not Retroactive. The law is not retroactive. Any noncompete entered into before October 1, 2018 (for convenience I refer to this as “2018”) is unaffected. This means that, as a practical matter, there will be two bodies of law: judges will apply the “old” court-made common law to pre-2018 agreements, and the new statute, along with the common law that is unaffected and therefore remains in place,  to agreements entered into after 2018.

Formalities. For a non-compete to be enforceable the employer must follow certain procedural formalities.… Read the full article

Attorney’s Attempt to Circumvent CDA Fails Before California Supreme Court

by Lee Gesmer on July 10, 2018

Attorney's Attempt to Circumvent CDA Fails Before California Supreme Court

The Communications Decency Act (CDA) is a federal law that protects online publishers from liability for the speech of others. The CDA gives online platforms the right to publish (or decline to publish) the ideas and opinions of users without the threat of being held liable for that content or forced to remove it.

However, people who are defamed online will sometimes go to extreme lengths to try to force online publishers to remove defamatory content posted by users. A notable First Circuit case that I wrote about recently illustrates how a lawyer attempted, unsuccessfully, to obtain copyright ownership of several defamatory posts and then force Ripoff Report to remove the posts. (See: The Copyright Workaround and Reputation Management: Small Justice v. Ripoff Report).

A California attorney tried something similar in Hassell v. Bird, a case decided by the California Supreme Court on July 2, 2018. In that case a lawyer (Dawn Hassell) sued a former client and the author of a Yelp review (Ava Bird) over a review that Hassell claimed was defamatory.… Read the full article

If Everything Is Conspicuous, Nothing Is Conspicuous: Forming an Online Contract in the First Circuit

by Lee Gesmer on July 2, 2018

If Everything Is Conspicuous, Nothing Is Conspicuous: Forming an Online Contract in the First Circuit

Online agreements are nothing new to the Internet but companies are still struggling to implement them in a way that will assure their enforceability.

The latest company to fail this test is Uber Technologies. A June 2018 decision issued by the First Circuit Court of Appeals in Boston held an online agreement presented to the users of the Uber smartphone app in 2012 and early 2013 was not sufficiently conspicuous to be enforceable. The terms and conditions stated that users of the app could not participate in a class action and were required to resolve any dispute with Uber by means of binding arbitration. Because the First Circuit held that this agreement is not enforceable the plaintiffs in this case—who claim that Uber engaged in unfair and deceptive pricing —will now be free to proceed with a class action against Uber.

In deciding this case the First Circuit applied Massachusetts contract law, specifically the 2013 decision of the Massachusetts Appeals Court in Ajemian v.… Read the full article

Supreme Court To Decide Whether Copyright Office Action on Registration Required Before Suit

by Lee Gesmer on June 29, 2018

Supreme Court To Decide Whether Copyright Office Action on Registration Required Before Suit

The Supreme Court accepts appeals of very few copyright cases. In the last 20 years it has decided only 14 copyright cases, and most of those involved narrow, highly technical issues of copyright law.

However, the Copyright Act (which contains 150,000 words or 250 pages of single-spaced text), is mostly a law of technicalities.

One of these technicalities arises out of the fact that copyright registration is a precondition to filing a copyright infringement suit. However, the Copyright Act is not entirely clear on what this means: must a copyright plaintiff obtain registration from the Copyright Office (or, in rare cases, a denial, but in any case a decision on its application) before it may file suit for copyright infringement? Or, is it enough that the plaintiff has filed an application for infringement, permitting the suit to proceed while the application waits to be acted on by the Copyright Office, a process that typically takes about eight months?… Read the full article

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