A “Possible” Case of the Mandela Effect? The Duty to Preserve in Massachusetts Following JFF Cecilia

March 19, 2023
, , , , , , , News

The duty to preserve evidence is an important obligation in the context of litigation. And such a duty can arise prior to the filing of a lawsuit. As a result, a critical question for potential litigants and their counsel is: exactly when does this important duty arise?

The answer to this question is important, as a misstep may lead to the imposition of sanctions. In January the Massachusetts Superior Court Business Litigation Session issued a decision that appeared to set a new standard for when the duty to preserve evidence arises. The decision states that a potential litigant is duty bound to take affirmative steps to preserve evidence not only when it seems that litigation is likely, but “if a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action” (emphasis added).[1]

A Discovery Dispute

The JFF Cecilia v. Weiner Ventures LLC, et. al. case involves a dispute between business partners on a construction project in Boston. According to an order issued on January 6, 2023, after the defendants backed out of the project, counsel for one of the plaintiffs sent a dispute notice on August 20, 2019, as required by the terms of the parties’ agreement. The letter specifically reserved plaintiff’s legal and equitable rights but made no mention of pending litigation. Counsel for the parties continued to communicate. The plaintiff sent another letter on October 1, 2019, proposing terms for resolution, “or [plaintiff] would be compelled to recover through other mechanisms. . .” A complaint was ultimately filed on October 23, 2019, and the parties proceeded to discovery.

After discovering large gaps in defendants’ document productions, plaintiffs were informed that two defendants had not preserved, or had affirmatively destroyed a series of text messages, email correspondence, and voicemails citing routine practice. These items were from the time that the parties were partnering on the project, as well as the period following defendants’ withdrawal from the project. Plaintiffs filed a motion for sanctions on September 30, 2022, alleging that defendants were reasonably on notice of the likelihood of litigation from August 20, 2019, until the filing of the lawsuit on October 23, 2019, and that defendants had failed to preserve, or affirmatively destroyed, potentially relevant evidence.

The Possible Action Standard: A Forgotten Standard?

In his original ruling, Judge Salinger denied Plaintiffs’ motion for sanctions finding that Plaintiffs had not shown that a reasonable person, before October 1, 2019, would have thought it very likely that they would be sued. Judge Salinger also found that Plaintiffs were not prejudiced by the alleged spoliation of evidence.

Plaintiffs appealed the denial. A single justice on the Appeals Court (Henry, J.) issued an order remanding the decision for clarification of the appropriate standard. Justice Henry specifically inquired whether the standard set forth in a 2009 Supreme Judicial Court case controlled. In that case, the SJC explained that “[t]he doctrine of spoliation permits the imposition of sanctions and remedies where a litigant or its expert negligently or intentionally loses or destroys evidence that the litigant (or expert) knows or reasonably should know might be relevant to a possible action, even when the spoliation occurs before an action has been commenced.” Scott v. Garfield, 454 Mass. 790, 798 (2009) (emphasis added). For the purposes of this article, this standard will be referred to as the “possible action standard.”

n remand, Judge Salinger reversed his earlier decision and noted that the remand order required him to interpret the possible action standard differently than he had the first time – “something materially different than ‘likely litigation.’” Citing the dictionary definitions of “possible” and “likely,” Judge Salinger determined that “[a] future lawsuit is ‘possible’ if it is ‘within the limits of ability, capacity, or realization.’ Webster’s Ninth New Collegiate Dictionary at 918 (1991). In contrast, litigation is ‘likely’ only if it has ‘a high probability of occurring.’ Id. at 692.”

As a result, lawyers are asking whether this decision created a new standard for the duty to preserve evidence – namely if a defendant would have reasonably thought litigation was possible. Looking more closely, however, it may be that rather than creating a new standard, this case has uncovered a collective misremembering of Massachusetts law surrounding the duty to preserve and spoliation of evidence.

The Mandela Effect

In 2009, American writer, Fiona Broome coined the term the “Mandela Effect” to describe the phenomenon of collective false memories. A commonly used anecdote of the Mandela Effect is the spelling and pronunciation of the bear family from the popular children’s books the Berenstein Bears. . . or is it the Berenstain Bears? If you thought it was the Berenstein Bears, you’re in company of the likely (and incorrect) majority. Similarly, you wouldn’t be alone in assuming that the duty to preserve evidence arose when the threat of litigation was likely or probable. So, did the JFF Cecilia case change the threshold for when the duty to preserve commences, or has it always been when “a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action”?

Unlike the Berenstain Bears, the answer here is not clear: it may be both. The original case using the possible action language cited by Judge Henry is Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 127 (1998) (“[s]anctions may be appropriate for the spoliation of evidence that occurs even before an action has been commenced, if a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action”) (emphasis added).

The “likelihood standard,” – distinguished in Judge Salinger’s January 30, 2023 ruling and probably the most recognizable to Massachusetts lawyers – seems to have appeared for the first time in Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 549–50, (2002) (“[w]e have implicitly recognized that persons who are actually involved in litigation (or know that they will likely be involved) have a duty to preserve evidence for use by others who will also be involved in that litigation”) (emphasis added). Yet less than three sentences later, the Fletcher court cites Kippenhan and the possible action standard. The question remains, what is the standard?

What is the standard for the duty to preserve in Massachusetts?

Although the possible action standard laid out in Kippenhan remains good law,[2] it seems that somewhere along the way, the standard got conflated with a narrower probability or likelihood standard. This was not by imagination or mistake. While it seems to be a case of the Mandela Effect, it was likely a result of the more nuanced language used by Massachusetts courts since 1998, which often appear alongside the possible action standard.

Courts in Massachusetts have performed fact-sensitive inquiries into cases involving disputed instances of spoliation to discern what is really possible between two parties. In many of the cases that discuss and apply the possible action standard, the standard is qualified by explaining more nuanced, narrow scenarios when litigation is deemed to be possible. “Possible,” then, is a term of art. As such, the law is left with various synonymous standards cited alongside the possible action standard. Courts use words such as “likely,” “potential,”[3] “forthcoming,”[4] “upcoming,”[5] and “probable,”[6] among others to describe when a defendant should have anticipated the litigation for which evidence has allegedly been spoliated.[7]

hen discussing spoliation, courts look at the facts surrounding the dispute, the timing of the parties’ knowledge regarding the dispute, as well as factors that may mitigate a party’s reasonable expectation of litigation, to determine whether spoliation occurred. This ad hoc inquiry, while seemingly negating the utility of a spoliation standard, is in fact useful in better understanding the context in which the possible action standard is implemented. Indeed, in Kippenhan, the court sharpened the focus of when litigation may be deemed possible:

The threat of a lawsuit must be sufficiently apparent, however, that a reasonable person in the spoliator’s position would realize, at the time of spoliation, the possible importance of the evidence to the resolution of the potential dispute. . .

Kippenhan, at 127 (emphasis added).

As a result, Massachusetts courts seem to have relied on Kippenhan as a starting point for fact-sensitive inquiries. This further suggests that the long-held likelihood or probability standards are quite possibly a result of a collectively accepted, intuitive short-hand within which the standards for the duty to preserve and the spoliation of evidence have evolved from the simple possibility of future legal action to something more apparent.

However, as the courts work to clarify the bounds of the duty to preserve, lawyers should err on the side of preservation, as the simple act of questioning whether to preserve could be construed as knowledge of the possibility of such evidence being relevant to a possible action.

 

Jillian Carson and Puneet Dhaliwal are the co-authors of this article.

Jillian is a commercial litigation associate at Beck Reed Riden LLP. Her work focuses on trade secret and restrictive covenant law. She has represented clients on matters concerning, among other things, the enforceability of noncompete, nondisclosure, and nonsolicit agreements

Puneet is an associate at Beck Reed Riden LLP. She represents companies and individuals in a wide array of business disputes, including litigation concerning the enforcement of noncompete agreements and confidentiality restrictions.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

[1] JFF Cecilia LLC v. Weiner Ventures, LLC, et al., No. 1984CV03317-BLS2, 2023 WL 1804375 (Mass. Super. Ct. Jan. 30, 2023).

[2] Indeed, even the Mass Guide to Evidence, Section 1102 cites the possible action standard from Kippenhan.

[3] See, e.g., Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. 223, 234 (2003) (“. . .defendant should have been aware of a likely claim at least as early as May 1, 1987, the time that it filed a notice with RMF of a potential claim based on the plaintiff’s injuries”); MacLellan v. Shaw’s Supermarket, Inc., 2008 WL 2889921, at *1 (Mass. Super. June 23, 2008) (“[p]ersons who are actually involved in litigation (or know that they will likely be involved) have a duty to preserve evidence for use by others who will also be involved in that litigation”).

[4] See, e.g., Reliance Ins. Co. v. Total Tech. Servs., Inc., 72 Mass. App. Ct. 1116 (2008) (“Sanctions may be appropriate for spoliation that occurs even before the commencement of an action if a party knows or reasonably should know that litigation is forthcoming and that the evidence will be relevant to that litigation”).

[5] See, e.g., Westover v. Leiserv, Inc., 64 Mass. App. Ct. 109, 112–13 (2005) (“The doctrine of spoliation ‘is based on the premise that a party who has negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results’”).

[6] Order of Sanctions for Spoliation of Evidence, Maclellan, (Mass. Super. June 23, 2008) (imposing sanctions where Defendant was “on notice of probable litigation” when alleged spoliation occurred).

[7] Notably, the cases that use these synonymous terms also cite to Kippenhan in their analysis of the law surrounding the duty to preserve evidence.

Nicole Gage and Hannah T. Joseph to Speak at Intellectual Property Year in Review

January 8, 2021
, , , , , News, Trade Secret

Nicole Gage and Hannah T. Joseph will be speaking at this year’s Boston Bar Association’s 21st Annual Intellectual Property Year in Review. The virtual event will be held on Thursday, January 14, 2021, from 10:00 am to 3 p.m. More information is available here.

Nicole Gage will be the moderator for the Keynote Address and Q&A by The Honorable William G. Young, Judge, U. S. District Court, District of Massachusetts. Nicole is a member of the Advisory Committee for the 21st Annual IP Year in Review.

Hannah Joseph will be speaking on the Trade Secrets panel.

The Intellectual Property Year in Review is the premier IP law event of the year. Panelists will provide attendees with informationi about landmark cases and legislative changes and offer insights into what’s ahead in patents, copyright, trademarks, trade secrets, and more.

Nicole Gage has over 20 years of experience advising clients with respect to intellectual property matters. Her practice focuses on all areas of trademark and unfair competition law including clearance, portfolio management, prosecution, enforcement, litigation, due diligence, false advertising, licensing, trademark use and misuse, and use in connection with social media. She has significant experience in the Federal Courts and at the Trademark Trial and Appeal Board (TTAB).

Hannah Joseph is a senior attorney with the firm’s business litigation group, where she focuses her practice on the growing areas of trade secrets and restrictive covenants law, employee mobility, and unfair competition. She represents both corporate and individual clients on issues concerning the protection of trade secrets and enforceability of noncompete, nonsolicitation, and nondisclosure agreements.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Information for Employers During the COVID-19 Pandemic

March 26, 2020
, , , , Employment Law, News, Resources

On March 18, President Trump signed the Families First Coronavirus Response Act (H.R. 6201) (“FFCRA”), which includes a number of important provisions changing the rights and responsibilities of employers and employees in significant ways as related to the COVID-19 pandemic. The Act, which takes effect April 1 and expires December 31, 2020, includes provisions that (1) expand the availability of FMLA leave; (2) expand access to, and obligations to provide, paid sick leave; and (3) expand the availability of unemployment insurance. An informative Q&A about the FFCRA may be found here. At the same time, many states including Massachusetts have expanded access to unemployment insurance and have streamlined application processes.

The legal landscape is evolving quickly in the face of the COVID-19 pandemic—additional legislation is pending and state and local guidance is changing by the day, and sometimes by the hour. Check back for updates as information becomes available.

Emergency Family and Medical Leave

The expanded FMLA provisions (the Emergency FMLA Act) apply to employers with fewer than 500 employees—including employers with fewer than 50 employees that, prior to the FFCRA and outside of the COVID-19 context, are not normally considered “covered employers” under the FMLA. The provisions apply to full-time and part-time employees who have been on company payroll for at least 30 days, except that employers may choose to exclude employees who are health care providers or emergency responders. Also, employers with fewer than 50 employees may be exempt from the Emergency FMLA requirements if they can demonstrate that the viability of their business would be jeopardized by having to comply with the new law.

In addition to personal or family medical reasons, the FFCRA allows an employee to take emergency leave if they are unable to work (or telework) because they need to care for their child after that child’s school or regular place of childcare has been closed by a governmental authority due to COVID-19.

The first ten days of Emergency FMLA leave may be unpaid, although the employee may choose to use any accrued paid time off (including sick days) to continue to be paid during this time. Alternatively, according to guidance from the Department of Labor, the employee may elect to use the FFCRA’s Emergency Paid Sick Leave (discussed below) during the first ten days. After the first ten days, an employer must pay two-thirds of the employee’s regular rate of pay for the hours that the employee would have worked had they not taken leave. The paid leave is capped at $200 per day, with a maximum total payout of $10,000 per employee.

As with ordinary FMLA leave, employees returning from Emergency FMLA leave ordinarily must be returned to their same or similar positions. However, employers with fewer than 25 employees need not reemploy an employee if, during that employee’s leave, their position was eliminated due to economic conditions caused by the COVID-19 public health emergency and the employer made reasonable efforts to offer the employee an equivalent position.

The FFCRA also provides that an employer may recoup 100% of the qualified family leave wages it pays in the form of a tax credit against its liabilities for the quarter in which the family leave pay is disbursed.

Emergency Paid Sick Leave

As with the expanded FMLA provisions, private employers with fewer than 500 employees are required to provide expanded paid sick leave under the FFCRA’s Emergency Paid Sick Leave Act. The paid sick leave provisions also apply to public agencies of any size.

Covered employers must provide paid sick leave to full-time and part-time employees who are unable to work for one or more of the following reasons:

  • the employee is subject to COVID-19 quarantine or isolation based on government orders;
  • the employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns;
  • the employee is experiencing COVID-19 symptoms and is awaiting diagnosis;
  • the employee is caring for someone who is subject to either number (i) or (ii) above;
  • the employee is caring for their child if the child’s school or daycare center has been closed, or the child’s childcare provider is unavailable due to COVID-19 precautions; or
  • the employee is experiencing any other substantially similar condition specified by the secretary of health and human services in consultation with the secretary of the treasury and the secretary of labor.

An employee is entitled to paid sick leave for the equivalent of two weeks—80 hours for full time employees, or the number of hours a part-time employee would have worked during the two-week period—which can be terminated earlier if the need for the sick leave ceases. Pay during this leave is capped at $511 per day or $5,110 total if the employee takes leave because of reasons (i), (ii), or (iii), and $200 per day or $2,000 total if leave is taken for reasons (iv), (v), or (vi).

An employer may not require an employee to use other paid time off, including other sick leave, before using the provided emergency paid sick leave. Further, an employer may not require the employee to find another employee to cover the time they are taking the sick leave. Finally, an employer may not retaliate or discriminate against an employee who has elected to take paid sick leave provided by the FFCRA.

Employers are required to post a notice of the availability of the emergency FMLA and paid sick leave. The Department of Labor has provided a model notice on its website.

As with emergency paid family leave, the FFCRA also provides that an employer may recoup 100% of the qualified sick leave wages it pays in the form of a tax credit against its liabilities for the quarter in which the sick leave pay is disbursed.

Unemployment Insurance

Federal Changes

The FFCRA provides for $1 billion in additional federal funds to be transferred to the Unemployment Trust Fund for distribution to states that amend their unemployment laws to expand availability of unemployment insurance to those affected by the COVID-19 pandemic.

In particular, to be eligible for additional funds, states must comply with notification and accessibility requirements, ensuring that: employers properly notify employees at termination of the availability of unemployment compensation; applications and assistance with applications are available by at least two of the following methods: in person, over the phone, or online; and that applicants are given proper notifications as to the status of their application throughout the process.

Further, states must increase access to unemployment, including by taking steps toward easing eligibility requirements for claimants, waiving work search requirements and waiting week periods, and avoiding charging employers impacted by COVID-19.

Massachusetts Changes

Massachusetts has passed legislation and issued regulations and guidance, in line with the FFCRA, in order to increase the availability of and ease of access to unemployment benefits. To that end, the normal one-week waiting period has been eliminated and applicants are no longer required to attend a seminar at a MassHire career center. Also, “worksearch” requirements for employees will be interpreted such that every COVID-19-affected claimant will collect benefits. Further, deadlines missed by employees and employers due to COVID-19 may be waived under the “good cause” provision. Employers severely impacted by COVID-19 may also request extensions for filings and paying contributions.

Employees who are quarantined by governmental or medical order, or who leave employment due to reasonable risk of exposure, are eligible for benefits without medical documentation. Workers whose hours have been cut may also apply for partial benefits. Further, employees whose workplaces are temporarily shut down or who are temporarily furloughed may seek unemployment benefits as long as they stay in contact with their employer and are able to perform whatever work there is to do.

Options for Employers Experiencing Slowdowns Due to COVID-19

Employers in Massachusetts and elsewhere may be experiencing slowdowns in business, or may foresee a slowdown in the future, due to COVID-19. Employers needing to make adjustments to their workforce should be aware that they have different options short of permanent terminations or layoffs that may help keep their business afloat while allowing their employees to get paid something. These options include:

  • Reducing hours for hourly employees: cutting work hours allows employees to remain employed on a reduced schedule with the ability to apply for partial unemployment benefits.
  • Reducing pay for salaried employees: assuming a salaried employee is employed on an at-will basis, the employee’s salary can be reduced during a slowdown in business caused by COVID-19.
  • Furloughs or temporary layoffs: employers may require some or all employees to stop working altogether with the expectation that the furloughed employees will return after the COVID-19 crisis is over. Furloughed employees are eligible to collect unemployment benefits during the furlough period.
  • Temporary shutdown: some businesses have been required to close by governmental authorities, or an employer may choose to close their business entirely due to COVID-19. Similar to a furlough, employees may collect unemployment benefits during a temporary shutdown.

Each of these options presents its own complexities, as well as unique pros and cons. We are available to walk any interested clients through the various possibilities.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Massachusetts Court Warns Employers Not to Coast on Forum Selection Clause

June 29, 2017
, , , , , , , , , , , Noncompete agreements, Resources, Trade Secret

he Business Litigation Session of the Massachusetts Superior Court recently dismissed a noncompete case against a California employee on the basis of forum non conveniens, notwithstanding a Massachusetts forum selection clause and a Massachusetts choice-of-law provision in the defendant’s employment agreement. The case is titled Oxford Global Resources, LLC v. Hernandez, and it was issued on June 9, 2017.

This decision calls into question the enforceability of forum selection and choice-of-law provisions in employment agreements with California employees. The decision also characterizes employment agreements (especially with low-level employees) as “contracts of adhesion” that may be subject to more careful judicial scrutiny. Finally, as discussed below, the Hernandez opinion takes a dim view of what constitutes an employer’s “confidential information,” highlighting existing tension in Massachusetts case law.

Background

efendant Jeremy Hernandez was a California resident who was recruited, hired, and employed by Plaintiff Oxford Global Resources, LLC, in California. Hernandez’s employment with Oxford was conditioned on his signing a “protective covenants agreement,” which contained confidentiality, noncompete, and nonsolicitation obligations, as well as a Massachusetts choice-of-law provision and a Massachusetts forum selection clause. Oxford filed the case claiming that Hernandez breached his agreement when he used Oxford’s confidential information to solicit its clients on behalf of a competitor. Hernandez moved to dismiss the case on the basis of forum non conveniens.

As an initial matter, the Court found that because Hernandez had no meaningful opportunity to negotiate the terms of his employment agreement, it was a contract of adhesion that was subject to careful scrutiny. The Court based its finding on the following facts:

  1. Oxford would not have hired Hernandez if he did not sign the agreement.
  2. Oxford did not allege or offer any evidence suggesting that the parties negotiated the choice-of-law or forum selection provisions, or that Oxford had even demonstrated a willingness to discuss the issues.
  3. Hernandez started as an entry-level employee at $50,000 annual salary.
  4. Hernandez possessed no prior industry skill or experience that would have given him bargaining power to negotiate the agreement.

Notably, the Court did not give any weight to “boilerplate language” in the agreement stating that Hernandez had read the agreement and had the opportunity to have his own lawyer review it.

The Court next found that enforcing the agreement’s Massachusetts choice-of-law provision would result in “substantial injustice” to Hernandez. Because Hernandez was a California resident who was recruited, hired, and employed there, California law (generally voiding noncompetes) would otherwise govern the dispute absent a choice-of-law provision. The court ruled that enforcing the provision would deny Hernandez the protections of California law and subject him to a noncompete.

Although some California courts recognize a trade secret exception that permits the enforcement of agreements that are “necessary to protect the employer’s trade secrets,” the Court nevertheless found that the agreement, which provided that Hernandez could not compete against Oxford using its trade secret information, was not enforceable because it defined confidential information so broadly as to include the identities of Oxford’s customers, prospective customers, and consultants. The Court stated:

The non-competition restriction that Oxford seeks to enforce therefore goes far beyond what is permitted under California law or, for that matter, under Massachusetts law.

An employee is free to carry away his own memory of customers’ names, needs, and habits and use that information, even to serve or to solicit business from those very customers. Such “remembered information” is not confidential because the information itself, as distinguished from an employer’s compilation of such information into a list or database, is known to the customers and thus not kept secret by the employer. 

The Court concluded that:

Since the mere identity of customers is not confidential, the Agreement that Oxford seeks to enforce is the kind of non-competition agreement that is void under California law. Accordingly, the Court held that the choice-of-law provision was not enforceable.

Finding that it was evident that Oxford sought to include a Massachusetts forum selection clause in order to avoid the application of California law, the Court also held that the forum selection clause was not enforceable under California law.

Ultimately, the Court dismissed the case on grounds of forum non conveniens, finding that it would be unfair to compel Hernandez to defend in Massachusetts and that California had a stronger interest in the case.

Import of the Hernandez Decision

ernandez not only underscores the difficulty of enforcing restrictive covenants against California residents, but also generally calls into question the validity of choice-of-law and forum selection clauses, especially where the employee has had no meaningful opportunity to negotiate the terms of his employment agreement.

Notably, in characterizing the employment agreement as a “contract of adhesion,” the Court in Hernandez gave no weight to the affirmative representations in the agreement (stating that the employee had read and had opportunity to have his attorney review the agreement). Historically, the Superior Court has given varying degrees of weight to these types of affirmative representations.

Moreover, Hernandez adds to the argument that (in some instances) employees are permitted to use their employer’s confidential information concerning client names, needs, and habits, as long as that information is “remembered” rather than compiled into a list or database. In this respect, Hernandez highlights the tension that exists in Massachusetts case law regarding confidential information that is stored in an employee’s memory.

Given the evolving case law on these issues, businesses seeking to protect their confidential information should consult with their attorneys before drafting or enforcing these types of agreements.

***

Hannah T. Joseph, the author of this article, is a lawyer in the firm’s litigation practice, whose work in intellectual property has been recognized by, among others, the Boston Bar Association (where she serves as Co-Chair of the Boston Bar Association’s Intellectual Property Committee). Thank you to Monika Zarski for contributing to this article.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.