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Mike Sams and Anthony Fioravanti won a settlement for their contractor client after two weeks of trial, when the owner dismissed their $750,000 claim and paid K&S’s client!

Chris Kenney and Greg Vanden-Eykel secured a significant pre-suit settlement for a general contractor client in a Rhode Island matter. The owner of a health care company in Rhode Island owed our client several hundred thousand dollars for work performed to complete a major renovation project. The owner refused to respond to the client’s multiple demands for payment. In response, our office drafted a demand letter detailing the chronology of the relationship between the owner and our client, raising the potential for our client to pierce the owner’s corporate veil, and identifying the owner’s breaches of contract and violations of various Rhode Island laws. We also informed the owner that it was responsible for our client’s attorney’s fees for the breach of contract pursuant to Rhode Island statutory law. Realizing that it had few, if any, defenses, the owner agreed to make a substantial payment of the total amount and executed an agreed upon judgment if settlement payments were not timely made. Ultimately, the owner fulfilled its obligations bringing this matter to a full, favorable, and final and timely resolution.

Nate Cole, Alex Zwillinger, and Herling Romero recently achieved a favorable settlement for a homeowner in a case dealing with G.L. c. 142A, the Massachusetts Home Improvement Contractor statute. The team took over the case from predecessor counsel only weeks before trial, and in a matter of weeks was able to turn the case around with several successful motions. Following the Court’s favorable rulings on the team’s motions, the parties mediated, and the team secured a six-figure settlement for the client to compensate for the home improvement contractor’s defective work. 

Nate Cole and Brittany Darcy obtained a stunning victory in a nearly five-year-old personal injury case filed against two K&S clients. In March, a Massachusetts Superior Court dismissed the claims against our clients because the opposing lawyer failed to appear for a routine status conference. When opposing counsel realized that the Court had dismissed his client’s case after counsel had missed the status conference, he filed a motion requesting the Court vacate the dismissal. At last week’s hearing on the Plaintiff’s Motion to Vacate Judgment, Nate argued that the conduct was not a single mistake but part of a pattern of failing to diligently prosecute the case for years. Nate urged the Court to consider how unbelievable the excuse was: counsel claimed he never received notice of the March hearing from the Court’s e-notice system even though all other parties had. The Judge agreed, confirming with the Court Clerk if notice had been sent to all parties, despite the offending lawyer’s claim otherwise. Two days later, the Court ruled denied the Motion to Vacate the Dismissal and found that the opposing lawyer’s failure to appear for a hearing based on incredible excuses and his pattern of neglect did not meet the high standard of “excusable neglect” required by Massachusetts courts to justify a do-over. The Court ordered that all claims against our clients remain dismissed where opposing counsel had shown “a pattern of neglectfulness and inattention to the claims, the Court, and the Defendant parties spanning nearly 5 years.” 

Federal Trade Commission Takes Action on Fake Reviews

By: John Nagle

Understanding the Federal Trade Commission’s (FTC) recently-issued Final Rule prohibiting businesses from publishing fake online reviews of their products or services will be critical for companies in industries where online reviews are often key drivers of consumer choice. The Final Rule sends a strong message that the FTC intends to monitor the effect of online reviews on fair competition and consumer welfare by establishing potentially harsh penalties for violations, including fines that may exceed $50,000.

Plaintiffs Seeking to Recover Damages from an Insurer Must Expressly Prove Their Insured Property Damages

By: Herling D. Romero Adrianza

On August 14, 2024, the Massachusetts Appeals Court in Lessard v. R.C. Havens & Sons, Inc. (“Lessard”) affirmed a trial court’s order allowing an insurer’s motion for summary judgment and finding that an insurer has no duty to indemnify its insured where the plaintiff in a construction defect case failed to distinguish property damage covered by insurance from other uninsured construction defect damages.

Let’s Be Reasonable: A Liquidated Damages Reminder

By: Michael P. Dickman, Esq.

The Massachusetts Appeals Court recently struck down a liquidated damages provision in a commercial lease. In so doing, the Court followed well-established precedent in declining to enforce a liquidated damages provision that is considered a penalty. The outcome highlights the importance of careful consideration of potential damages when entering into contracts. 

OSHA Proposes New Heat Hazard Standard Potentially Impacting Construction Industry



By: Samantha C. Corcoran, Esq. and Greg Vanden-Eykel, Esq.

Excessive heat in the workplace can cause serious injury and death to employees. In fact, heat is the leading cause of weather-related deaths in the United States. To date, however, no federal rules, laws, or standards regulate employer obligations to mitigate workplace heat hazards. On August 30, 2024, the Occupational Safety and Health Administration (“OSHA”) addressed this issue when it published its proposed rule (the “Rule”) regarding “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.”

NLRB Further Limits The Enforceability of Non-Competition Agreements and “Stay or Pay” Agreements

By: Greg Vanden-Eykel, Esq.

On October 7, 2024, the National Labor Relations Board’s (NLRB) General Counsel issued new guidance detailing the following: 1) employers’ potential liability for non-competition agreements found to be unlawful, and 2) the unenforceability of so-called “stay or pay” agreements between employers and employees. Although the NLRB’s guidance does not carry the force of law like a federal or state statute or regulation, this guidance further evidences the NLRB’s steps to limit employers’ rights to contract with employees regarding certain terms and conditions of employment. With this in mind, employers must continue to review their employment agreements and determine whether they are susceptible to potential liability moving forward.

Developments in Rhode Island Employment Law Entering 2025

By: Greg Vanden-Eykel, Esq.

This article continues Kenney & Sams’ series addressing Rhode Island employment laws that impact our Massachusetts and Rhode Island clients. Awareness of these developments is particularly important for our Massachusetts-based clients who may not always consider the implications of Rhode Island law on their operations. As 2024 ends and 2025 begins, we highlight a few of the new or amended Rhode Island employment laws that will impact clients’ operations. This is not an exhaustive list, and you should continue to maintain your own awareness of laws that impact you. 

Massachusetts Expands Earned Sick Time Law With Addition Of A New Qualifying Reason For Sick Time Use

By: Michelle M. De Oliveira, Esq.

Starting November 21, 2024, qualifying reasons for an employee’s use of earned sick time under Massachusetts’ Earned Sick Time Law (M.G.L. c. 149, § 148C) will include the physical or mental health care needs as a result of the employee’s or the employee’s spouse’s “pregnancy loss or a failed assisted reproduction, adoption or surrogacy.” This change expands the qualifying reasons for which an eligible employee may use sick time.

START MEDIATION WITH SWORDS DOWN, HANDS OPEN, AND GRACIOUS GREETINGS

The purpose of mediation is to negotiate a full, final, and mutually agreeable resolution to a dispute. It is designed to bring decorum and deliberation to what can otherwise devolve into a “street brawl.”

Psychological studies show that negotiations proceed more efficiently, effectively, and harmoniously if the parties meet in person at the beginning of the mediation. Simple things like eye contact, oral greetings, and a personal handshake diffuse the tension and anxiety that litigants (and sometimes their attorneys) bring into the mediation proceeding.

EYE CONTACT - It’s been said that “the eyes are the windows to the soul.” In other words, eye contact suggests truthfulness and candor, whereas looking down or away connotes deceit and deception. That is how the saying: “Look me in the eye and say that” came to be. Eye contact is a cultural barometer of truthfulness. The time to communicate this is in person at the beginning of the mediation because the rest of the mediation hearing is normally conducted with the parties separated into their own rooms waiting for the mediator to shuttle back and forth between the parties to convey their respective bargaining positions.

ORAL GREETINGS - Social scientists have determined that 55% of a person’s “first impression” is based on his or her nonverbal communication (e.g. body language, dress, accessories, grooming, and facial expressions). The next 38% is based not on what one says, but how one says it (e.g. voice inflection, tone, tenor, volume, and pitch). Thus, 93% of one’s credibility and likability are based on personal interaction with others. If you skip the opening greetings and refuse to even say “good morning,” that awkward isolationism promotes suspicion and distrust that will only hamper your ability to persuade your opponent to consider your position and compromise their position.

HAND SHAKES - This ancient tradition reportedly arose to show your opponent that you come in peace to talk in good faith. Most people are right-handed, so the custom of shaking hands has always involved two people clasping each other’s open right hands—one can’t hold a sword, knife, gun, or other weapon in his right hand while extending it to shake hands in a good faith greeting.

I’ve been at mediations where there was no opening session, and the opponents even refused to meet and shake hands. Needless to say, those mediations did not resolve in a settlement.

Traditionally, the opening session included greetings from the mediator, and then a brief opening statement from each side’s attorney. This model is designed to promote fully informed decision-making by letting the parties’ decision-makers hear directly from opposing counsel, just as the jury will if the case does not settle and instead goes to trial.

More recently, mediators and litigation counsel have moved away from making opening statements at the opening session. In my experience, that is often a mistake. If parties can’t be in the same room and listen to a presentation of their opponent’s case for 15 minutes, they’ll never survive a multi-day trial in court in front of a judge and jury.

It is the mediator’s role to set the tone for a substantive, professionally courteous negotiation session at the mediation hearing. Although counsel act in an adversary capacity as advocates, their role as officers of the court and professionals should have them assisting the mediator in setting the tone for a constructive, productive, and worthwhile negotiation.

After all, every mediation is a bargaining session. As Ben Franklin said: “You catch more flies with honey than you do with vinegar.”

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.

For more information, please visit our website.

Mike Sams moderated and spoke at the Associated Builders and Contractors' program on how to create leverage to get paid, concerning mechanic’s liens, payment bonds, and the prompt pay statute.  

On September 10, 2024, Michelle De Oliveira led a discussion relating to medical marijuana in the workplace for @Associated Builders and Contractors of Massachusetts.

On September 18, 2024, Michelle De Oliveira was a panelist on the Massachusetts Continuing Legal Education webinar, Types of Employment Discrimination Cases, where she took a deep dive into discrimination and retaliation claims and how to defend against these claims.

 On October 1, 2024, Michelle De Oliveira chaired a Massachusetts Bar Association webinar entitled, Massachusetts Paid Family & Medical Leave: Everything You Should Know, and More. Michelle was the program chair and a panelist and had the privilege of being joined by among others, Department of Family & Medical Leave's Director, William Alpine, for a robust discussion relating to the Massachusetts Paid Family & Medical Leave Act, its key provisions, and best practices.

On October 10, 2024, Michelle De Oliveira led a discussion for the Associated Builders and Contractors of Massachusetts Self-Insured Workers’ Compensation Group (SIG) relating to marijuana in the workplace, the interplay with reasonable accommodations, and best practices and considerations for employers.

On October 21, 2024, Nate Cole presented on Contractor Indemnification before the Massachusetts Social Law Library. Nate discussed indemnification clauses and risk transfer and management in the construction and insurance industries to lawyers and insurance professionals. 

On November 4, 2024, Nate Cole chaired the MCLE’s “New Lawyer Launch Program.” Nate presented with The Honorable Bonnie MacLeod on developing, managing, and maintaining relationships with clients and opposing counsel.  

SEMI ST. PATRICK'S DAY CELEBRATION

We gathered as a team with our friends and clients in September to celebrate Semi-St. Patrick's Day.

Michelle, thank you for bringing these two documents into 2024. You have become a valued resource and honored to have you as part of our team. Thanks again!

Hi Chris and Nathan,

I wanted to send you a quick note and congratulate you both on being named "Lawyer of the Year” and being recognized by Best Lawyers. My wife and I always speak highly of both of you. You guys were fantastic during a very stressful time for us, and we are glad that we got connected with you. We couldn’t have asked for better representation.

Hello Anthony, I just wanted to follow up and say again how grateful I am for the service and guidance you provided throughout this extended journey. Your patience, diligence and direction were invaluable to me hanging in there for what I can say is a very satisfactory resolution. At times it was hard to see how this would end and whether the outcome would be a positive one for myself and the company. Your persistence and advice were instrumental in allowing this to come to fruition. Thank you very much for all that! Anyway, once again my sincere appreciation to you AND Mike. Please let me know if I can be of help with any future relationship building as a very satisfied client.

Chris, just wanted to drop a line and say that we really appreciated your hard work on our mediation. This does not resolve without your expertise. It was clear that you had put in the time and effort to know the material and the issues, and you did a great job in an intense and complicated situation. I look forward to mediating with you again.

Mike, I appreciate all the support from all of you. I also want to let you know that Alex and Josh have been awesome to work with, they always make me feel comfortable and confident in what I’m doing. 

Chris, Great working with you – you were in a tough position with a lot of emotion/stakes and excelled in the circumstances. Both parties have shared how grateful they were to have had you working on this case.

You are an exceptional mediator, and I very much appreciate all your help in bringing the parties to a resolution.