Massachusetts Appellate Attorney

          In Rivera v. Centro Medico de Turabo, No. 07-2657 (July 31, 2009), the First Circuit (Lipez, J.) held that a forum selection clause in a hospital’s medical consent form, which required plaintiff to litigate his medical malpractice claim only in state court, was enforceable.
          Prior to his admission for prostate cancer surgery, Rivera signed [...]

          In Nagle v. Acton-Boxborough Regional School District, No. 08-2374 (July 30, 2009), the First Circuit has held that a government employee cannot invoke equitable estoppel to hold her employer liable for its oral assurances that her leave of absence to care for her ailing husband would be covered by the Family Medical Leave Act [...]

          In Commonwealth v. Vick, No. SJC-10385 (July 30, 2009), the SJC has reaffirmed the strict “elements-of-the-crime” test for determining whether, consistent with double jeopardy prohibitions, a defendant can be punished for two different crimes arising out of a single course of conduct.
          Vick allegedly shot his victim once in the chest at close range. [...]

          In Ropes & Gray v. Jalbert, No. SJC-10333 (July 28, 2009), the SJC has held that the Massachusetts attorney’s lien statute permits attorneys to place a lien on a patent (and any proceeds later derived from that patent) for legal fees earned while representing a client in obtaining the patent before the United States [...]

          In Warfield v. Beth Israel Deaconess Medical Center, No. SJC-10375 (June 27, 2009), the SJC has held that, unless an employment contract unambiguously provides that its mandatory arbitration provision applies to an employee’s statutory employment discrimination claim, the employee cannot be compelled to  arbitration on that claim.
           Warfield, who worked as anesthesiologist-in-chief at Beth [...]

          In Commonwealth v. Swartz, No. SJC-10426 (July 23, 2009) and Commonwealth v. Murphy, No. SJC-10287 (July 23, 2009), the SJC has held that written police guidelines which permit police officers at sobriety checkpoints to direct particular vehicles to a nearby detention area for further investigation are constitutional.
          Defendants challenged the guidelines because they provided [...]

          In United States v. Wallace, 07-1884 (1st Cir. July 23, 2009), the First Circuit (Lipez, J.) has held that the “law of the case” doctrine may bar appellants whose sentences previously were vacated and remanded on appeal from raising in a successive appeal from their new sentence legal arguments which they did not raise, [...]

          The First Circuit has decided to rehear en banc the panel decision in SEC v. Tambone, 550 F.3d 106 (1st Cir. 2008), which held that the Securities and Exchange Commission could hold two security underwriters personally liable under Rule 10b-5 for false statements contained in prospectuses they disseminated, even though they themselves had not [...]

           In United States v. Bryant, No. 08-1160 (1st Cir. July 8, 2009), the First Circuit has held that the government was not entitled to a presumption that non-judicial records that it adduced to prove the existence of a prior conviction for purposes of characterizing defendant as a “career offender” were sufficiently reliable. 
            The government [...]

     
          In United States v. Meadows, No. 08-1122 (July 8, 2009), the First Circuit has held that a defendant in a federal criminal case, unlike in Massachusetts courts, is not entitled to a jury instruction cautioning jurors about failure by police to record his inculpatory statement made during a custodial interrogation.
          The Massachusetts SJC [...]

          In Kelly v. Foxboro Realty Assocs., No. SJC-10294 (July 16, 2009), the SJC has held that trial courts have no discretion, absent the consent of the parties, to instruct jurors in civil cases that they may discuss evidence among themselves during the trial.
           The Court noted that, since it flatly prohibited such a jury [...]

          In Commonwealth v. Kebreau, No. SJC-10317 (July 16, 2009), the SJC has held that the “first complaint doctrine,” which normally limits the prosecution to introducing only the testimony of the first person to whom a victim of sexual abuse reported the abuse, is not violated where two witnesses each report different incidences involving distinct [...]

          In Janney Montgomery Scott v. Tobin, No. 08-1863 (July 8, 2009), the First Circuit has held that a party may recover for the attorney fees it incurs when it moves in federal district court to vacate or confirm an arbitration award on a Chapter 93A unfair business practices claim.
      Trustees filed a Chapter 93A-based [...]

         In Colonial Life and Accident Insurance Co. v. Medley, Nos. 08-2332 & 08-2379 (1st Cir. 7/8/09), the First Circuit has held that the Younger abstention doctrine precluded the federal district court from enjoining a pending case before the Massachusetts Commission Against Discrimination (MCAD) in which an employee alleged that an insurer discriminated her by [...]

          In Correa-Ruiz v. Garcia, No. 06-2578 (1st Cir. 7/7/09), the First Circuit has held that Puerto Rico’s 2005 statute which requires police and firefighters to retire at age 58 did not violate the Age Discrimination in Employment Act (ADEA) or the federal due process clause.
      In 1974, Congress extended the ADEA to the States, [...]

         In Cendrawasih v. Holder, No. 08-2178 (7/2/09), the First Circuit has affirmed the Board of Immigration’s denial of witholding of deportation and asylum to an Indonesian woman whose husband previously was granted asylum in the United States.  The immigration judge determined that, unlike her husband, petitioner could relocate to another part of Indonesia where [...]

          In Feeney v. Dell, Inc., No. SJC-10259 (7/2/09), the SJC has held that a consumer contract provision requiring that purchasers arbitrate their unfair business practices claims individually against a retailer could not be enforced to preclude purchasers from participating in a class-action arbitration against the retailer because such a contractual waiver is void as [...]

          In Commonwealth v. Johnson, No. SJC-10267 (6/26/09), the SJC affirmed a motion to suppress evidence seized during a patdown frisk, based on defendant’s refusal to remove his hands from his pockets during an investigatory stop in a “high crime” neighborhood.
         While patrolling a neighborhood well known for drug activity and gang violence, Springfield police [...]

          In Grassi Design Group v. Bank of America, No. SJC-08-927 (June 23, 2009), the SJC has affirmed the grant of summary judgment for banks sued by their commercial customers for processing and paying out on checks forged by the customers’ employees.
          Plaintiffs sued for reimbursement under the Uniform Commercial Code, M.G.L. ch. 106, § [...]

          In Commonwealth v. Means, No. SJC-10262 (June 12, 2009), the SJC has defined the procedural safeguards that must be observed before a criminal defendant is deprived of his constitutional right to appointive counsel on the ground that he forfeited that right by engaging in violent or threatening conduct.
      Means, who had a history of [...]