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NEWSLETTER
- Winter 2024 -
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Many thanks to our clients, colleagues, and friends for their confidence, trust, and support over the last 17 years. | |
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Kenney & Sams is proud to announce it has been named one of the 2023 Best Places to Work: Law Firms.
“It is a tremendous honor to be named one of the Best Places to Work 2023: Law Firms. At Kenney & Sams, we are passionate about creating a supportive and collaborative work environment and we place a high priority on helping our attorneys achieve professional excellence while delivering outstanding client service and results,” said Chris Kenney and Mike Sams, co-founders of the Firm.
Read more about the award here
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K&S is pleased to announce the promotion of M. Matthew Madden, Jr.
M. Matthew Madden, Jr. has been promoted to Partner. This is a direct result of Matt's hard work, outstanding accomplishments, and dedication to the firm.
Matt is an experienced advisor and trial lawyer representing businesses and individuals through all avenues of dispute resolution including trial, arbitration, mediation, and private settlement negotiations.
A seasoned litigator, Matt represents clients in a wide variety of matters, including construction claims, commercial disputes, insurance coverage issues, and complex litigation in state and federal courts, as well as through alternative dispute resolution.
Matt has repeatedly been named to the Massachusetts Super Lawyers® list as a Rising Star in Construction Litigation and Civil Litigation.
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K&S is excited to welcome Samantha Corcoran and Parker L. Williams | |
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Samantha Corcoran is a litigator who concentrates her practice in the areas of construction, commercial, and employment litigation. Prior to joining K&S, Samantha was a litigation associate with a small law firm in Massachusetts handling a range of real estate and condominium law matters. Her work included substantive research, written discovery and pleadings, and motion practice. In her previous position, she represented individuals and condominium associations in Land Court and Superior Court, as well as in front of local zoning boards of appeals.
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Parker L. Williams is a litigator who focuses his practice on construction, employment, and commercial and business litigation matters. He has extensive experience in all aspects of civil litigation, including motion practice, depositions, written discovery, and trial preparations.
Prior to joining the firm, Parker worked at two mid-sized civil litigation firms in Boston. Parker’s practice included working on all aspects of national and international cases concerning commercial and business litigation, appellate, transportation, negligence, aviation, toxic torts, and products liability matters.
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Boston Magazine named Mike Sams and Chris Kenney to the 2023 Top Lawyers List.
For the third consecutive year, the following attorneys have been recognized by Boston Magazine as a “Top Lawyer” in 2023, which recognizes lawyers in the Greater Boston area for their excellence in legal work:
Christopher A. Kenney – Civil Law Litigation
Michael P. Sams – Construction
To compile this list, Boston Magazine invited lawyers in the area to nominate up to three of their peers in a select number of practices. The top vote-getters in each practice were then reviewed by an advisory board of select lawyers.
Please join Kenney & Sams in congratulating Chris and Mike for this honor.
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Best Lawyers® recognizes K&S in its 2024 “Best Law Firms” list with five national and eight metro rankings.
The Best Lawyers “Best Law Firms” rankings are based on professional reference evaluations, peer review from leading attorneys, industry leader interviews, and review of additional firmographic highlights provided by law firms as part of the formal research submission process.
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National Rankings
Tier 3
- Commercial Litigation
- Construction Law
- Insurance Law
- Litigation – Construction
- Litigation – Labor and Employment
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Metro Rankings – Boston, MA
Tier 1
- Commercial Litigation
- Construction Law
- Employment Law – Management
- Litigation – Labor and Employment
Tier 2
- Insurance Law
- Litigation – Construction
- Litigation – Insurance
- Personal Injury Litigation – Defendants
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CLIENT VICTORIES & TRIAL WINS | |
 |  | Partners, Greg Vanden-Eykel and David Viens, recently obtained a jury verdict after a six-day trial in the Essex County Superior Court (Lawrence) on behalf of their client, a national healthcare provider system. The plaintiff, a long-time, human resources professional at one of our client’s Massachusetts hospitals, asserted claims for “regarded as” disability discrimination and retaliation after she was furloughed in the early weeks of the COVID-19 pandemic and later terminated as part of a company-wide reduction in force (RIF). The plaintiff claimed our client regarded her as disabled because of her prior cancer history and her personal belief of an increased susceptibility to severe COVID infection, and discriminated and retaliated against her for seeking a reasonable accommodation to work remotely due to her health concerns. The plaintiff was furloughed several days after she requested to work remotely due to her expressed health concerns. Due to government-mandated cancellation of all elective procedures and skyrocketed operational costs, our client eliminated the plaintiff’s position approximately two months later, along with terminating the employment of numerous other employees. Our client disputed that the plaintiff was disabled or that its employees regarded her as disabled; asserted legitimate, non-discriminatory business reasons for the employment actions (i.e., the company-wide RIF required for financial reasons); and presented evidence that the employment decisions were unrelated to the plaintiff’s medical history, any perceived disability, or request for reasonable accommodation. After two hours of deliberation, the jury returned a verdict for our client on all claims.
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Mike Sams, David Kerrigan, and Rachel Eisenhaure successfully represented a water and sewer contractor against a municipality – where the municipality wrongfully rejected awarding its water and sewer contract to our client. The municipality contended that the contractor was not responsible and that, therefore, it properly rejected the contractor in awarding to the second low bidder. K&S alleged that the municipality’s rejection was made in bad faith and that, therefore, our client was entitled to recover its anticipated lost profits. After more than a week-long trial, the jury deliberated for less than 3 hours before finding for K&S’s contractor client with an award that, including pre-judgment interest, exceeds $5.2 million.
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In Herling Romero's trial debut, he represented a former antique dealer who cosigned hundreds of items to an auctioneer. The auctioneer alleged that K&S's client breached her contract and violated the Massachusetts Consumer Protection Statute, G.L. c. 93A. After a two-day trial, the jury found that K&S's client did not breach her contract and the Court found she had not violated G.L. c. 93A.
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Alex Zwillinger and Jeremy Bardsley successfully defended a client’s state law claim against removal to federal court in a case examining issues of federal question jurisdiction and federal preemption. We achieved a great result for the client by successfully arguing removal was inappropriate, and remand was mandated, where the client’s state law claim for promissory estoppel was not substantially dependent upon analysis of a collective bargaining agreement. The court agreed with our arguments that the client’s claim did not require interpretation of the meaning of any provision within such a collective bargaining agreement and remanded the client’s case back to state court where our client brought suit. | |
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Mike Sams and Mike Dickman recently secured a tremendous outcome on behalf of homeowner clients suing their builder on claims of defective work. The homeowners had dealt with significant structural issues since they moved into the home four years ago. Kenney & Sams had filed a lawsuit in state court against the builder and his construction company. During discovery, the firm obtained helpful testimony during defendant’s deposition and produced an expert report on the estimated costs to fix the numerous defects. The parties agreed to mediate the case in October. At mediation, the defendant agreed to pay our clients 100% of the damages outlined in the expert report, plus their attorneys’ fees. A resounding success that avoided taking the case to trial.
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Chris Kenney and Anthony Fioravanti successfully negotiated a highly favorable seven-figure settlement of a close corporation shareholder dispute on behalf of their minority shareholder clients. The case involved breach of fiduciary duty claims on behalf of the minority shareholder clients, who alleged they were improperly frozen out of the company, and derivative claims on behalf of the company for improper self-dealing by the majority shareholder. Through a carefully crafted discovery plan which elicited favorable deposition testimony, Chris and Anthony positioned the case for a favorable resolution in advance of trial.
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Nate Cole and Alex Zwillinger recently obtained an outstanding result in a commercial dispute in which the client praised their, “combination of skill, strategy, aggressiveness when necessary, and professionalism.”
Our client, the leading provider of software as a service to a multi-billion dollar industry, agreed to advertise for a new industry specific insurance product and to develop an API to integrate the two companies’ purchase platforms. When the insurance provider could not obtain the necessary approvals to fully integrate the checkout pages, it stopped paying and sued Nate and Alex’s client for millions of dollars, including lost profits. The case proceeded under the extremely fast JAMS Streamlined Arbitration Rules & Procedures, which meant the case raced from filing towards trial in only seven months. In that short time, Nate and Alex developed a winning legal strategy and mastered the technical issues presented by the app development. The turning point was when Nate extracted fatal admissions from the opposing party at a deposition less than a month before the arbitration. The K&S team used the momentum it built methodically at each stage to settle for a walk away, which had been unthinkable when the case began. The outcome is a testament to K&S’s Trial Think™ approach and the incredible value of collaborating with smart, savvy business clients.
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Massachusetts False Claims Act: Ignorance Is Not Bliss
By: Anthony B. Fioravanti, Esq.
A recent Massachusetts Superior Court case serves as an important reminder that contractors working on public projects must ensure that their subcontractors comply with prevailing wage laws. A failure to do so can put the contractor at risk under the Massachusetts False Claims Act (the “False Claims Act”) and expose the contractor to potential multiple damages far more than the underlying unpaid wages.
Read More Here
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Reservation of Rights Letter…The Insurer’s Prenuptial Agreement with its Insured
By: Michael P. Sams, Esq.
When an insurance company agrees to defend you but reserves the right to disclaim coverage later ― you can hire your own counsel and the insurer, not you, must pay for that counsel.
More specifically, in determining whether to head into a relationship with its insured once a claim has been filed, an insurer, like a couple heading into marriage who want a prenuptial agreement, sometimes reserves the right to later drop out of the relationship with its insured. The reservation of rights letter is the insurer’s prenuptial agreement and, typically, it comes about roughly as described below.
Read More Here
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CONSTRUCTION & REAL ESTATE LITIGATION | |
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5 Tips for Responding to a Chapter 93A Demand Letter
By: Alexander R. Zwillinger, Esq. and Jessica A. Hartman, Esq.
Oftentimes, the first our construction clients hear that their customers are dissatisfied is when they receive a Chapter 93A demand letter, crammed with legalese, alleging bad work and “unfair and deceptive trade practices,” and demanding payment for damages.
Understandably, many contractors are unfamiliar with Chapter 93A, its requirements, and how to best protect themselves and their businesses when they receive such a demand. This article gives background on Chapter 93A and provides tips for how to protect yourself if you receive one.
Read More Here
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EMPLOYMENT LAW & RISK MANAGEMENT | |
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Are Out-of-State Employees Afforded Protections Under The Massachusetts Wage Act and Massachusetts' Anti-Discrimination Statute?
By: Michelle De Oliveira, Esq.
and Herling Romero, Esq.
The question of whether an out-of-state employee may reap the benefits of Massachusetts law, including the Massachusetts Wage Act, requires an important analysis that is both in-depth and fact specific.
Read More Here
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Considerations for Employers Facing Challenges to Workplace DEI Policies
By: Gregory Vanden-Eykel, Esq. and Parker L. Williams, Esq.
In June 2023, the United States Supreme Court issued its decision in the Students for Fair Admissions, Inc. v. President and Fellows of Harvard College case (“SFFA”) and curtailed the use of affirmative action in college admissions. Specifically, the Court held that the University of North Carolina’s (“UNC”) and Harvard College’s race-conscious admissions programs violated the Equal Protection Clause (“EPC”) of the Fourteenth Amendment to the U.S. Constitution. The Court found that UNC’s and Harvard’s respective uses of race as a “determinative” or “plus” factor in their admissions decisions violated the EPC because the schools considered certain applicant’s race to their detriment and discriminated against them.
Read More Here
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National Labor Relations Board Expands Joint Employer Rule
On October 27, 2023, the National Labor Relations Board (“NLRB”) issued a Final Rule that revises the applicable standard to determine whether two or more entities may be considered joint employers under the National Labor Relations Act (“NLRA”). The test is more expansive than the previous test and warrants a close examination.
Read More Here
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Chris Kenney has built a burgeoning practice as a mediator. In that role, he helps parties to resolve pending lawsuits before trial. The cases Chris has mediated range from business disputes, personal injury claims, and wrongful death claims to employment disputes, real estate matters, and construction claims.
Tip: Don’t rush into “bracketed” negotiations.
A common negotiating tactic during mediation is to use “brackets” to break through an impasse. For example, consider a case involving a hypothetical construction accident in which the plaintiff, a subcontractor’s employee who was injured on the job, sued the general contractor for alleged negligence resulting in serious personal injuries. The plaintiff’s initial settlement demand is $1 million. The general contractor, who believes the accident was caused by the plaintiff’s own negligence, has offered $10,000 as a “nuisance value” initial settlement offer.
At mediation, both sides recognize that they face risk and expense, so they both would secretly prefer to avoid trial. However, negotiations are in the fourth hour at mediation, and it is “death by 1000 cuts” as each side makes minor “tit-for-tat” changes in their respective settlement positions. Proceeding by small increments like this, matching each other begrudging proposals, breeds frustration and distrust.
To break through an impasse like this, the mediator often suggests brackets to narrow the gap, test resolve, and expedite progress in negotiations. In this hypothetical, with the plaintiff’s revised demand still at $900,000 and the defendant’s offer only up to $50,000, the mediator might suggest a “bracket.” For example, “if the plaintiff reduces his demand to $750,000 would the defendant increase its offer to $100,000?”
Be careful about how you respond to such a proposal, as it could unwittingly signal your willingness to accept the number assigned to you in the proposed bracket. That could psychologically transform your next settlement position to the number ascribed to you in the bracket. Instead, consider asking, the mediator to propose the brackets using a “double blind” procedure. In this method, the mediator proposes the bracket numbers, but only informs both counsel of agreement to the bracket if both sides confidentially inform the mediator that they agree to the proposed bracket. Otherwise, the mediator informs both sides that the proposed bracket was rejected by both sides and the negotiation reverts to each parties’ last position.
This protects the status quo ante, and eliminates the risk that one party has unwittingly telegraphed a monumental change in its settlement position without getting any corresponding change from the other side.
For more information, please visit our website.
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RECENT AND UPCOMING
SPEAKING ENGAGEMENTS
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October 18, 2023- ABC-RI Lunch and Learn
Mike Sams recently presented to ABC Rhode Island concerning key construction contract provisions, and how to negotiate them.
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January 25, 2024 10am-11am - Understanding Key Insurance Provisions in Construction Contracts
Nate Cole presented to NECA Boston on how construction contracts at all levels include requirements for certain types of insurance and related clauses, including those dealing with indemnification obligations, the key terms and how they relate to one another, including a discussion concerning the differences and interplay between liability insurance, builder’s risk insurance, “additional insured” requirements, and indemnification provisions.
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January 30, 2024 1pm-2:05pm- Best Practices in Handling Construction Payment Disputes
Drew Colby and Parker Williams will present, during a live webinar at Lorman, on tactics and strategies for how to avoid and minimize payment disputes. Learn more and register for this CLE here.
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January 30, 2024 1:00pm - Proposed Changes to Overtime Rules
Michelle De Oliveira will present on an expert panel to discuss the Department of Labor’s notice of proposed rulemaking that would dramatically increase the number of workers eligible for overtime. The expert panel will discuss what the proposed rule provides, how employers can respond, and what businesses should be doing in anticipation of a possible change. Learn more and register for this upcoming Mass Lawyers Weekly webinar here.
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February 1, 2023 5pm-8:30pm- Expert Discovery: Nuts and Bolts
Mike Dickman, in conjunction with the Massachusetts Bar Association and MassDLA, will serve as a panelist for a presentation, hosted at the K&S Boston office, on expert discovery best practices. The presentation will focus on all aspects of working collaboratively with litigation expert consultants, from initial contact and retention through depositions and trial. There will be a networking reception following the presentation. Learn more and register here.
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February 6, 2024 12pm-2pm- Defending & Attacking Constructive Discharge
Michelle De Oliveira and Greg Vanden-Eykel will present on a Massachusetts Continuing Legal Education panel and discuss how to plead, defend against, and attack constructive discharge claims. Register for this upcoming MCLE here.
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February 20, 2024 - Reimagining Rainmaking: How Alternative Origination Credit Can Address Inequity and Enhance Retention - IADC Midyear Meeting, Miami, FL
Nate Cole's presentation at the upcoming 2024 IADC Midyear Meeting will explore how origination credit models impact diversity in the business of law and how alternatives to the traditional origination model can help build more diverse, collaborative, and effective teams better suited to service clients, increase profits, and lead the next generation of lawyers.
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March 14, 2024 12pm-2pm- Avoiding HR Landmines That Can Lead to Lawsuits
Michelle De Oliveira will present on a Massachusetts Continuing Legal Education panel and discuss best practices for human resources professionals and managers to proactively address employment-related issues. Register for this upcoming MCLE here.
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Kenney & Sams's employees and their families recently gathered for their annual holiday party at the Marriott Long Wharf in Boston. A wonderful time was had by all! | | |
Oh Baby! Recently, Kenney & Sams's employees held a Baby 'Sprinkle'. We collected infant items for donation to Cradles to Crayons. | |
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Kenney & Sams's staff gathered for a holiday celebration. They made ornament crafts and participated in a gift exchange. |
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Kenney & Sams is excited to announce that we will be releasing the first episodes of our new podcast, Trial Think, in 2024. During the first season of Trial Think, we will discuss issues ranging from construction, business, and employment law through the eyes of trial attorneys who have seen how disputes play out in litigation and trial. We look forward to discussing hot legal issues in our core practice areas with K&S attorneys and our notable guests. Stay tuned! | |
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GET TO KNOW YOUR K&S TEAM MEMBER:
Suzanne Itani
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Best advice you were ever given as a professional: "Don’t bring it to work". I have a fond memory of my mom giving me this advice forever ago. I am a firm believer in it.
Favorite part about working for K&S:
The people. I really enjoy everybody’s company. I’m also proud to work for Kenney & Sams because I think this firm generates high quality work.
Best non-legal job you’ve ever had: Bath & Body Works Sales Associate. I enjoy selling things when I genuinely love the things that I am selling. Everyone is always so happy at Bath and Body Works because you are surrounded by good smelling things. Even the messes that need to be cleaned smell great!
Something we may not know about you: I learned how to drive a forklift long before I learned to drive a car.
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“Your team always offers excellent customer service. It is essential as a small business to have this kind of support and is one of the many reasons why we love doing business with Kenney & Sams.”
- Chris Senecal, President, C.A. Senecal Electrical Services, Inc.
“I have worked with many outstanding litigators in my career. Nate and Alex are two of the best I have ever seen. You guys have a great combination of skill, strategy, aggressiveness when necessary, and professionalism. Moreover, you are great guys on a personal level, and I’ve enjoyed getting to know you.”
- Michael Bittner, General Counsel, GotSports, Inc.
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Trial-Think [trahy-uh l thingk] noun.
1. An approach to dispute resolution and risk
management that brings trial experience,
preparation and effectiveness to everything
we do for our clients.
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