Contracts

[Disclosure: Kevin Peters and Jennifer Henricks, attorneys at Gesmer Updegrove LLP, represented Dr. Hlatky in the case discussed below]

Contact law is complicated. It dates back centuries, and is mostly common law, meaning it evolves case-by-case in judicial opinions. There are thousands of cases, involving thousands of fact patterns, and it seems like there’s always room for one more variation.

This was the case in the Massachusetts Supreme Judicial Court’s (SJC) April 28, 2020 decision in Hlatky v. Steward Health Care System LLC, where the plaintiff was awarded $10.2 million for damage to an asset — a cancer research lab — that she didn’t own.1

The Facts. Dr. Lynn Hlatky is a prominent cancer researcher. She has over three decades of research experience, including at one time a faculty position in the radiation and oncology department at Harvard Medical School. Her research targets the development of a cancer vaccine.… Read the full article

Does Genius Have an Illegal “Scraping” Case Against Google?

Genius Media Group Inc., the owner of the music lyric site genius.com has sued Google and LyricFind for “scraping” lyrics from the genius.com website. Two aspects of this new case (only a complaint so far) are interesting – the way that Genius established that Google was scraping, which is quite clever, and the basis for Genius’s legal claim which appears to be quite weak.

Assume you have a work that you want to protect from copying but that you can’t copyright. You might be unable to use copyright law because it’s a database or compilation that lacks sufficient originality. Or, perhaps you’ve licensed the components of the database and you don’t own the copyright in them.

This is the position Genius is in. Genius publishes song lyrics online. Many of these lyrics are crowd-sourced by the Genius user community. However, Genius doesn’t own the lyrics – it licenses the right to publish them from authors and publishers.Read the full article

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

Fagen, Becker and the Steely Dan Buy/Sell Agreement

by Lee Gesmer on November 24, 2017

Fagen, Becker and the Steely Dan Buy/Sell Agreement

The first time I heard of a “buy/sell agreement” was around 1970 when I was 19  – just a few years before I fell in love with Steely Dan’s music.

Back then my father owned a textile business in Haverhill, Massachusetts with a 50-50 “partner,” and he explained that the business had insurance policies on both of their lives. If either partner died, the insurance would fund the purchase of the deceased partner’s shares, and the surviving partner would end up owning 100% of the company.

This, he explained was a “buy/sell agreement” – the deceased partner’s estate was bound to sell, and the surviving partner’s estate was bound to buy.

Fortunately, neither my father or or his partner ever had to exercise rights under this agreement – my father retired in 1981, and sold his half of the business to his partner.

It turns out that at around the same time that I first heard of a buy/sell agreement Donald Fagan and Walter Becker, the creative geniuses behind Steely Dan, were doing something similar.… Read the full article