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Pierce and Mandell PC Blog

Curt Dooling Explains Evolving Anti-SLAPP Standards

Friday, February 28, 2020

The Massachusetts Supreme Judicial Court continues to alter the standard by which G. L. c. 231, § 59H anti-SLAPP motions are decided by trial courts. The anti-SLAPP statute authorizes a party sued because of its petitioning activity to file a special motion to dismiss within 60 days of service of the complaint. Petitioning activity may range from testifying before a government agency to speaking publicly about an issue under consideration by a governmental body. The purpose of the anti-SLAPP statute is to protect individuals from harassing litigation and from the burden of defending against retaliatory lawsuits.

Pursuant to the SJC’s 1988 Duracraft test, the moving party (defendant) had to first demonstrate that the nonmoving party’s (plaintiff) claims were solely based on its own petitioning activity. Id. If the moving party met this initial burden, the non-moving party could defeat an anti-SLAPP special motion to dismiss by showing that the moving party’s petitioning activities were “sham petitioning.”

The SJC altered the Duracraft standard in 2017 in Blanchard v. Carney Hospital, 477 Mass. 141 (2017) (Blanchard I). In Blanchard I, the SJC modified the burden-shifting test by adding a second part to the analysis once the moving party made a showing that the non-moving party’s claims were solely based on petitioning activity. If the nonmoving party couldn’t show that the petitioning activity was a “sham,” the nonmoving party could defeat a special motion to dismiss by showing that the challenged claims were not primarily brought to chill legitimate petitioning activity.

Due to numerous conflicting decisions from the trial courts and from the Appeals Court, the SJC recently clarified the Blanchard I standard in Blanchard v. Steward Carney Hospital, Inc., 483 Mass. 200 (2019) (Blanchard II). In Blanchard II, the SJC held that if the non-moving party can’t show that the petitioning activity was a “sham,” the nonmoving party could defeat a motion to dismiss by showing that its primary goal in bringing its claim was not to interfere with defendant’s petition rights, but to seek damages for the defendant’s alleged acts.

Because Blanchard I provided little guidance on how courts should determine what claims were brought to chill petitioning activity and what claims were legitimate, Blanchard II established specific factors to be used by lower courts: (1) whether the claim was a classic SLAPP suit brought against citizens for speaking out on development projects; (2) whether the lawsuit was commenced close in time to the petitioning activity; (3) the timing of the anti-SLAPP motion; (4) the challenged claim in the context of the litigation as a whole and the relative strength of the nonmoving party’s claim; (5) evidence that petitioning activity was actually chilled; (6) whether the damages requested by the nonmoving party would burden the moving party’s exercise of the right to petition.

Attorney Curt Dooling has successfully litigated numerous anti-SLAPP cases and has prevailed at the Appeals Court on anti-SLAPP cases twice in the last two years in Dever v. Ward, 92 Mass. App. Ct. (2017) and Dever v. Ward, 96 Mass. App. Ct. 1108 (2019).


Pierce & Mandell Attorneys Present and Exhibit At the 2020 Yankee Dental Conference

Saturday, February 15, 2020

For the 11th consecutive year, Pierce & Mandell, P.C. exhibited at the 2020 Yankee Dental Conference held on January 30 – February 1, 2020, attended by dentists and their staffs from New England and beyond, and by other strategic partners and service professionals in the dental community. Pierce & Mandell Dental Practice Group attorneys, Bill Mandell, Hannah Schindler Spinelli, Sam Hoff and Ryelle Seymour, presented an educational program at the Conference on Legal Issues in Dental Practice Transitions, covering such topics as practice sales, establishment of and integration with DSOs, associate buy-ins, leases, employment and service agreements and enforceability of non-competes.


Bill Mandell to Speak at 2020 Annual Meeting of MA Association of Practicing Urologists

Friday, February 14, 2020
Pierce & William Mandell

Bill Mandell, Pierce & Mandell, P.C. Shareholder and Health Law Practice Group Head, will be the key speaker at the 2020 Annual Meeting of the Massachusetts Association of Practicing Urologists on April 15, 2020. Bill will lecture on the topic of “Legal and Compliance Issues and the Practice of Urology.” MAPU is dedicated to improving the standards and practice of urology on a state-wide basis, and advocates on both the state and national levels on behalf of all practicing urologists and their patients.





Pierce & Mandell Lawyers Make The Best Lawyers in America 2020 List

Monday, September 09, 2019

Pierce & Mandell, P.C. is proud to announce that partners, Bob Pierce, Bill Mandell, Bob Kirby, and Dennis Lindgren have been selected for inclusion in The Best Lawyers in America 2020 list. Bob Pierce, Bob Kirby and Dennis Lindgren were named Best Lawyers for litigation and Bill Mandell for Health Care Law. Best Lawyers is the oldest and most respected peer review publication in the legal profession, and annually identifies the top 5 % of private practice attorneys nationwide.

Pierce & Mandell, P.c. - Robert PiercePierce & Mandell, P.c. - William Mandellalt=Pierce & Mandell,
    P.c. - Robert Kirby

 


Pierce & Mandell Partners Are Selected 2019 New England Super Lawyers

Saturday, September 07, 2019

Pierce & Mandell, P.C. is proud to announce that all of our partners, Bob Pierce, Bill Mandell, Michael Fee, Bob Kirby, Tom Kenney and Dennis Lindgren have been selected 2019 New England Super Lawyers. Bob Pierce, Bob Kirby, Michael Fee, Tom Kenney and Dennis Lindgren were named for litigation, and Bill Mandell for Health Care Law.


Pierce & Mandell Counsel Curt Dooling Quoted In Mass Lawyers Weekly

Tuesday, May 07, 2019
Attorney Curt Dooling

Attorney Curt Dooling was recently quoted in a Massachusetts Lawyers Weekly article about the applicability of anti-SLAPP statutes to statements made on websites like Yelp and social media platforms like Facebook. https://masslawyersweekly.com/2019/01/24/west-roxbury-dentist-dodges-fee-order-in-spat-with-yelp/.

In the case on which Dooling commented, DiNapoli v. Yelp, Inc., United States District Court Judge Dennis Saylor held that Yelp is not immune from all lawsuits and is not always protected by anti-SLAPP statutes simply because it provides a forum for customer reviews.

Anti-SLAPP (Strategic Lawsuits Against Public Participation) statutes are intended to protect individuals from harassing litigation and from the burden of defending against retaliatory lawsuits based on statements made in public forums. Although anti-SLAPP statutes provide broad protections against lawsuits based on petitioning activity, the DiNapoli case showed that there are limits to the types of lawsuits that can be dismissed based on anti-SLAPP statutes.

Anti-SLAPP statutes are also intended to protect individuals from retribution for speaking publicly or petitioning the government. Based on DiNapoli, large companies like Yelp may have a difficult time utilizing anti-SLAPP statutes to get claims dismissed unless they can show that their own petitioning activity is the reason for the underlying claim, rather than simply hosting a platform for others to make public statements.

Curt has litigated several anti-SLAPP cases and has prevailed in filing special motions to dismiss based on the Massachusetts anti-SLAPP statute, G. L. c. 231, § 59H. He has also successfully argued anti-SLAPP cases before the Massachusetts Appeals Court. He can be reached at cdooling@piercemandell.com.


Negative Internet Reviews: Respond or Not?

Monday, May 06, 2019

By Robert R. Pierce

Over the last five years, the firm has received many calls from business owners who have received negative reviews from customers, or in some cases, non-customers. “What should I do?” They ask.

More often than not, my answer is to do nothing. When a customer gives a one-star review about the service rendered, it is simply a matter of opinion and there is no legal recourse. Some business owners, particular restauranteurs, respond with harsh rebuttals, sometimes doing what is essentially a negative review of the customer. While PR and marketing is not the firm’s bailiwick, I find it unlikely that a negative rebuttal would help the business. An approach I do like, however, is when a business owner sincerely apologizes for the customer’s negative experience, and offers to the customer an opportunity to make things right.

But, what if the negative review is factually false, or, the reviewer was not even a customer? Then, a lawyer may have a role.

Making false statements that cause harm can be actionable as slander (spoken statements) or libel (written statements). Recently, the firm was contacted by a dental practice which received a negative review from a person who had never been to the practice. The motivation was unclear. This one star review certainly dragged down the rating of the practice, which had about 15 reviews. The firm sent a letter to the customer demanding that the review be removed, and it was. But, once again, getting a lawyer involved should be the exception rather than the rule. Could you file suit against a bad reviewer? Only in the most extreme case. Recently, a lawyer on Cape Cod received a horribly negative review on Facebook with numerous false allegations including that he bribed court officials and other attorneys in a number of cases. The lawyer and his firm sued the complainant in 2015, and the case went to trial in February 2019. The jury eventually awarded the aggrieved lawyer $100,000.00 in damages. Even then, this further emphasizes the need to file suit only in the most extreme cases, as the review and its effect lasted roughly four years until resolution.

What I hope business owners take away from this piece are as follows:

  1. Provide superb, friendly service, and you will receive great reviews.
  2. If you get to know a customer on a personal level, feel free to ask them to post a review.
  3. Don’t attack the reviewer. It only makes you look petty and often brings on more negative reviews.
  4. If the review contains demonstrably false allegations, then consider legal action.

Bill Mandell is Featured Speaker at 2019 MCLE Hospital & Health Law Conference

Wednesday, April 24, 2019

Pierce & William MandellPierce & Mandell, P.C. Health Law Practice Area Leader, Bill Mandell, will be serving on the faculty of MCLE’s Annual Hospital & Health Law Conference 2019, scheduled for May 23. The program is celebrating its 20th anniversary and is the preeminent health law conference in Massachusetts. Bill will co-presenting the session on health law for physicians. For additional details about the program go to: https://www.mcle.org/product/catalog/code/2190257P01


Bill Mandell is Featured Speaker at American Association of Endodontists Conference

Wednesday, April 10, 2019
Pierce & Mandell - William Mandell

Pierce & Mandell partner William Mandell will be a featured presenter at the 2019 Annual Meeting of the American Association of Endodontists on April 11, 2019 in Montreal, Quebec. Bill will lecture on the topic of “Practice Transitions.” The AAE is a global resource for knowledge, research and education for endodontists. Dedicated to saving teeth, endodontists have specialized training and expertise, and employ state of the art techniques to diagnosis and treat tooth pain, including through root canal procedures. While all endodontists are dentists, less than three percent of dentists are endodontists.

 

 

 

 


New Massachusetts Law Requires Dental Practice Owners to Provide Additional Compensation for Associate Post-Termination Non-Compete Covenants Agreements

Monday, February 04, 2019
Pierce & Mandell, P.C. - New Massachusetts Law in Boston, MA

While Massachusetts law (See, Massachusetts General Laws Chapter 112, Sections 12X and 74D) has long provided that employed physicians and nurses cannot be subject to post-termination non-compete covenants, the Massachusetts Legislature has never extended the same unenforceability to such non-competes appearing in associate contracts for dentists. Massachusetts dental practice owners have thus come to rely on post-termination non-compete covenants as an important and customary protection for their practices. The new Massachusetts Noncompetition Agreement Act, Massachusetts General Laws Chapter 149, Section 24L (the “Act”) has changed the scope of enforceability for post-termination non-compete covenants appearing in any associate agreement entered into on or after October 1, 2018.

The Act does not apply to non-compete covenants that are included in practice sale agreements. It also does not apply to post-termination non-solicitation or non-disclosure covenants in any agreements, nor prohibitions on competition or outside activity prohibition in employment agreements that apply during the term of an associate’s employment. The Act also grandfathers and does not apply to agreements that went into effect prior to October 1, 2018.

Instead, the Act solely applies to non-compete covenants to the extent that they restrict the ability of an associate to compete in the same market as the practice following the termination of employment. The Act provides that a post-employment non-compete is unenforceable unless it meets numerous limits and standards.

Most noteworthy, and new, is a maximum limit of up to a one (1) year period, unless the employee breaches his or her fiduciary duties or unlawfully takes employer property; a requirement that the agreement state that the employee has the right to consult with legal counsel prior to signing; a restriction on enforceability against laid off employees or those terminated without cause; and, a requirement that the employer pay additional compensation to the associate in the form of “garden leave” payments of no less than 50% of the highest annualized base salary paid by the employer to the associate within the two (2) years that immediately preceded the termination date payable during the non-compete restriction period, or such “other mutually-agreed upon consideration” that must be stated in the agreement.

To ensure enforceability, a dental practice owner must now include non-compete language in new associate agreements with these limitations and include one of the two types of required additional compensation. The Act defines “garden leave” payments as payments that the owner makes to the associate during the “restricted period,” on a pro-rata basis throughout the entirety of the restricted period.

In contrast to garden leave payments, the Act provides practically no guidance with respect to what constitutes “other mutually-agreed upon consideration.” Such consideration need not be paid at a certain time(s) or in a certain amount. It must simply be agreed-to between the owner and the associate and reasonable to compensate the associate for the restriction on his or her ability to practice after termination.

An owner must take several factors into consideration in determining whether the non-compete agreement offered to associates should be supported by garden leave payments or other mutually-agreed upon consideration. While garden leave payments are certain with respect to their timing and amount, they are substantially more than most small practices are prepared to pay and are subject to the Massachusetts Weekly Wage Law (the “Wage Law”), codified as Massachusetts General Laws Chapter 149 § 148. An owner who fails to make garden leave payments may thus potentially be liable to an associate for the remedies set forth in the Wage Law, which include treble damages, attorney’s fees, and other costs.

Until there is more guidance on what constitutes “other mutually-agreed upon consideration,” small practices are likely to consider using some form of alternative consideration to support the enforceability of a non-compete. But, until there is a change in the law or a court case ruling on the scope of acceptable “mutually-agreed upon consideration,” there is little certainty as to what amount of consideration will be considered reasonable and sufficient to support enforcement of a post-termination non-compete against an associate.

The health/dental law attorneys at Pierce & Mandell, P.C. are available to advise dental practice owners, buyers, sellers and associates on how the new Massachusetts Noncompetition Agreement Act will affect their current or new contracts, associations, and transactions.

Feel free to contact Bill Mandell, Esq. at bill@piercemandell.com, Hannah Schindler Spinelli, Esq. at hannah@piercemandell.com, Samuel Hoff, Esq. at shoff@piercemandell.com, or Ryelle Seymour, Esq. at ryelle@piercemandell.com for more information about our representation of dentists and dental practices affected by this new law.




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