New England Legal Foundation2 0 1 4 Y e a r - I n - R e v i e w

New England Legal FoundationMission

The New England Legal Foundation is a 501(c)(3) not-for-profit public interest foundationwhose mission is promoting public discourse on the proper role of free enterprise in oursociety and advancing free enterprise principles in the courtroom.

Since its founding in 1977, NELF has challenged intrusions by governments and special interest groups which would interfere with the economic freedoms of citizens and businessenterprises in New England and the nation. Our ongoing mission is to champion individualeconomic liberties, traditional property rights, properly limited government, and balancedeconomic growth throughout oursix state region.

New England Legal Foundation does not charge attorney’s fees for its legal services. Its operating fundsare provided through tax deductible contributions made by individuals,businesses, law firms, and private charitable foundations who believe in NELF’s mission. Inside This Review

To Our Friends and Supporters ....................... 3

1st Annual John G.L. Cabot Award Dinner....... 4

The Docket..................................................... 5

Public Presentations and Seminars ..................23

Financial Review .............................................24

Individual Contributors...................................24

Corporate Contributors ..................................25

John G.L. Cabot Award Dinner Sponsors .........26

Governance ....................................................27

State Advisory Council Members .....................29

Our Trustees...................................................31

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To Our Friends and SupportersWe are pleased to report that 2014 was a another good year for NELF and all those whoshare its principles. As in past years, NELF played an important role in a number of significant, precedent-setting appellate decisions impacting business. Some of the mostimportant of these decisions were handed down by the United States Supreme Court.And it was in the Supreme Court that NELF received gratifying public confirmation ofthe serious attention its arguments receive in the courts.

This confirmation came during oral argument in Kellogg Brown & Root Services, Inc. v.United States ex. rel. Carter, a case dealing with whether a federal criminal code provisionsuspending the federal False Claims Act’s statute of limitations during wartime also applied to civil suits brought under the FCA. NELF had filed an amicus brief in whichSenior Staff Attorney Ben Robbins engaged in a meticulous, in-depth historical recon-struction of the reasons for the wording of controverted portions of the statute’s text. At one point during oral argument, Associate Justice Sotomayor referring to NELF’s amicus brief specifically, asked the petitioner’s attorney whether he was “adopting theargument of the New England [Legal] Foundation, the amic[us] brief?” Significantly,the petitioner’s counsel hastened to answer in the affirmative. We note that, in thecourt’s unanimous May 2015 decision adopting NELF’s position that the provision did not apply to civil FCA actions, central to the court’s reasoning were some of NELF’sunique insights into the text and history of the statute.

Kellogg Brown and NELF’s other cases in 2014 are described in the Docket portion of this Year-in-Review. As you will discover there, in 2014 NELF’s legal staff once again litigated a wide-ranging roster of legal issues in the New England state and federal appellate courts, as well as in the Supreme Court. In all of these cases we advanced alegal position that was based on a balanced approach to business and property law issues—an approach that seeks to maximize freedom of contract and enterprise within a framework of reasonable regulation. By working hard to create precedents that advanceour mission, we believe NELF continues to be an invaluable courtroom advocate evenfor those businesses that are not themselves parties involved in the litigation.

Last year also saw the inauguration of NELF’s John G.L. Cabot Award Dinner, the aim of which is to honor a leader in the New England community who shares NELF’s commitment to a balanced approach to free enterprise, reasonable regulation, traditionalproperty rights, and the rule of law. Our first honoree was Jay B. Stephens, Senior VicePresident, General Counsel, and Secretary of Raytheon Company. Jay, a longtime member of NELF’s Board and former Chair of NELF, was the perfect recipient of thefirst Cabot Award. We also presented two public seminars in 2014, one on the legal intricacies of doing business in China and the second on the Massachusetts SuperiorCourt’s Business Litigation Session.

As in past years, NELF’s vigorous advocacy of free market principles on so many differentfronts was made possible only because it enjoys the active support, commitment, andhard work of the distinguished attorneys and other professionals who serve on ourBoard of Directors and our six New England State Advisory Councils. Despite holdingchallenging, full-time positions in law firms and businesses, these individuals devote thetime and effort needed to provide first rate governance and guidance to the Foundation.To them, as well as to the companies, foundations and private citizens who supportNELF with their generous financial contributions, we give not only our thanks but also a commitment to continue our dedication to the core values of our system of freeenterprise in the years ahead.

Martin J. NewhousePresident

Mark T. BeaudouinChair

Joseph G. BluteVice Chair

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NELF’s 1st Annual John G.L. Cabot Award Dinner – October 2014

Jay B. Stephens, Senior Vice President and GeneralCounsel of Raytheon Company, honoree of the event,and Martin J. Newhouse, President of NELF

Michael T. Williams, Senior Vice President and General Counsel ofStaples, Inc., with his wife Susan, Jay Stephens with his wife Julie

Steven Lance, Chantal Lyon, Krish Gupta, Mary Connolly, Kelly Cruz,Joe McCarthy, Christopher Campbell of EMC Corporation.

Jay Stephens, Brian G. Leary and Jim McDermott, bothof Holland Knight LLP, and Valerie Leary

Karen Morton, Arlene Zalayet, and Chris Shumate ofLiberty Mutual Insurance Company

Wendell Taylor, Amanda Wait, and David Higbee ofHunton & Williams LLP

Kristen Cassavant and Jason Weida of Jones Day,and SanDee Priser of Ernst & Young LLP.

Andrew Valentine of DLA Piper US LLP, RebeccaRansom of Raytheon Company, and Thomas Boydalso of DLA Piper.

Mark T. Beaudouin, Vice President and General Counselof Waters Corporation and Chair of NELF’s Board of Directors, Jay Stephens, and Paul T. Dacier, Executive Vice President and General Counsel of EMC Corporation

Jay Stephens and John G.L. Cabot, one ofNELF’s founding directors, after whom theaward is named

Alan Raul of Sidley Austin LLP, Jay Stephens and his wife Julie,Gene Assaf and Edwin U, both of Kirkland & Ellis LLP.

Sara Jane Shanahan of Sherin and Lodgen LLP and Paul G. Cushing, LegalCounsel and Section Head of Litigationfor Partners HealthCare System, Inc.

Resisting a Federal Court’s Overly Expansive, and therefore

Unconstitutional, Imposition of General Personal Jurisdiction

DaimlerChrysler AG v. Bauman (United States Supreme Court)

In this case, DaimlerChrysler successfully challenged, under the Due Process Clause, aNinth Circuit decision that exercised general personal jurisdiction over an out-of-state parentbased solely on the in-state activities of an indirect subsidiary. The case was brought by 22 residents of Argentina, who sued Daimler-Chrysler, a German corporation, in the North-ern District of California under the Alien TortStatute of 1789 and the Torture Victim Protec-tion Act of 1991, alleging that one of Daimler-Chrysler’s subsidiaries, Mercedes-Benz ofArgentina, engaged in human rights violationsin Argentina during that country’s “Dirty War”in the 1970s and 1980s. The plaintiffs assertedgeneral jurisdiction over Daimler Chrysler (i.e.,that the foreign corporation could be sued inCalifornia for events that allegedly occurred inArgentina) on the basis that a wholly-owned, indirect subsidiary, Mercedes Benz USA

(“MBUSA”), did business in California. In its amicus brief on the merits filed insupport of DaimlerChrysler, NELF argued that the Ninth Circuit’s virtuallylimitless agency “test” merely described theordinary business relationship between aparent and subsidiary corporation. As aresult, the Ninth Circuit had offended theDue Process Clause by defeating thebedrock principle of corporate separateness,along with a corporation’s constitutionallyprotected, reasonable expectations con-cerning its amenability to suit in a remotejurisdiction. In a unanimous judgment,with Justice Sotomayor concurring in thejudgment only and the other eight Justicesjoining in the majority decision, theCourt reversed the Ninth Circuit. Consis-tent with NELF’s arguments, the majorityreadily dismissed the lower court’s agency“test” that would have imputed to Daimler-Chrysler all of the California contacts of itsindirect subsidiary, MBUSA, a Delaware

corporation headquartered in New Jersey. TheCourt however, went even further than this. Apparently seizing the opportunity to clarify thelaw of general jurisdiction, the Court held that,even if MBUSA’s California contacts (high salesvolume of Mercedes cars in California) could beimputed to DaimlerChrysler in Germany, generaljurisdiction would still not lie against Daimler-Chrysler in California. This is so, explained theCourt, because general jurisdiction is almost invariably limited to a corporation’s state of incorporation or principal place of business.

Arguing that Article III’s “Case or Controversy” Requirement bars a

plaintiff from suing in federal court forthe technical violation of a statute that

has not caused any concrete harm

Spokeo, Inc. v. Robins (United States Supreme Court)

This case is a putative consumer class actionpending before the United States Supreme Courton a petition for certiorari. The plaintiff and putative class representative, Thomas Robins,seeks statutory damages in federal court underthe Fair Credit Reporting Act, 15 U.S.C. § 1681

The Year in Review describes selected cases in which NELF participated in 2014and demonstrates the variety of issues thatNELF confronted in advancing the principles of the free enterprise system.

I. GOVERNMENT REGULATION, ADMINISTRATION OF JUSTICE, AND OTHER BUSINESS ISSUES

To fulfill its mission, NELF seeks to identify cases that could set precedents substantially affecting the free enterprise system

or reasonable economic growth

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et seq. (“FCRA”), for a technical violation of thatstatute that has not caused him any harm. (Inparticular, Robins alleges that the defendant,Spokeo, Inc., a website operator that providesusers with information about other individuals,published false (but favorable!) informationabout him, such as by misstating his educationallevel and financial status.) The FCRA permits recovery for the bare violation of a statutoryright. The case thus raises a constitutional issuelong familiar to NELF: does Article III of theUnited States Constitution, which limits the federal judiciary’s jurisdiction to “cases” and“controversies,” confer standing on a plaintiffwho alleges a violation of a federal statute butwho does not allege any resulting injury? NELF,joined by Associated Industries of Massachusetts,argued, on behalf of Spokeo, that the Courtshould grant certiorari and decide that Article IIIrequires dismissal of Robins’ complaint becauseit fails to allege any injury in fact. “Injury in law”under FCRA, based on the bare violation of astatutory right, cannot satisfy Article III’s stand-ing requirement that the violation must causesome concrete harm. The injury-in-fact require-ment under Article III is not satisfied merely because Congress has authorized an award ofstatutory damages for the bare violation of astatutory right. As the Supreme Court has stated,“[i]t is settled that Congress cannot erase ArticleIII’s standing requirements by statutorily grant-ing the right to sue to a plaintiff who would nototherwise have standing . . . .” Raines v. Byrd, 521U.S. 811, 820 (1997). NELF and AIM urged theSupreme Court to grant certiorari in order to resolve the confusion among the lower courts on this crucial issue and clarify that injury in factis not coextensive with injury in law.

Arguing the Wartime Suspension of Limitations Act does not apply tocivil qui tam claims brought under

the False Claims Act

Kellogg Brown & Root Services, Inc. et al.v. United States ex. rel. Carter

(United States Supreme Court)

In this case the Supreme Court consideredwhether the Wartime Suspension of LimitationsAct, 18 U.S.C. § 3287 (“Act”), a criminal code provi-sion of the federal False Claims Act (“FCA”), thatsuspends, during and for five years after times ofarmed conflict, the statute of limitations for “offenses involving [contractor] fraud . . . againstthe United States,” also applied to civil qui tamactions brought under the FCA. The FCA, firstenacted during the Civil War, provides both crim-inal and civil remedies against federal governmentcontractor fraud. On the civil side, the FCA encourages private whistleblowers (“relators”) tobring suit on behalf of the Government (“qui tam”actions); if successful, a civil qui tam plaintiff isawarded a share of the government’s damageaward (between 15% and 30%). Such civil qui tamclaims under the FCA are subject to a six-yearlimitations period. 31 U.S.C. § 3731(b)(1). TheFourth Circuit in this case concluded that the Act applies to both criminal and civil claims of contractor fraud against the Government.Consequently, the lower court allowed the plaintiff-relator’s otherwise untimely qui tamFCA claim to proceed on the merits against defendants Halliburton Company, KBR, Inc., Kellogg Brown & Root Services, Inc., and ServiceEmployees International, Inc. (collectively “KBR”).NELF submitted an amicus brief in support ofKBR, arguing that the Fourth Circuit had erredand showing, based on an extensive analysis ofthe Act’s legislative history, the source of its mistake. The lower court had misunderstood acrucial part of the Act’s statutory history. Priorversions of the Act, enacted in 1921 and 1942,had applied to offenses that were “now indictableunder existing statutes.” I.e.,i.e, their coverage wasretrospective only, applying to crimes, still timely,that had already occurred when those 1921 and1942 statutes took effect.Iin 1944, however, Congress, made the Act prospective as well, by

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deleting the phrase “now indictable under existingstatutes.” However, the Fourth Circuit, alongwith virtually every other court and commentator,misinterpreted this 1944 amendment. In particular,the lower court concluded that Congress’ removalof the phrase “now indictable” in 1944 expandedthe meaning of the word “offenses” to includenon-indictable, civil claims. NELF demonstratedcompellingly that, to the contrary, when Congressremoved the phrase “now indictable” in 1944, itsimply extended the Suspension Act to futureoffenses of contractor fraud. (Congress also preserved other language in the 1944 Act to make it clear that the 1944 statute applied topast timely offenses as well.) By no means did the1944 amendment affect in any way the exclusivelycriminal meaning of the word “offense.”

In what we believe is a NELF first, during oral argument of this case on January 13, 2015,Supreme Court Associate Justice Sotomayorspecifically referred to NELF’s amicus brief, whenshe asked the attorney for the Petitioner whetherhe was “adopting the argument of the New England [Legal] Foundation, the amic[us] brief?”Equally significantly, Petitioner’s counsel indicatedthat he was indeed adopting NELF’s argument.

Arguing Successfully that a FederalCourt Sitting in Diversity Should

Generally Defer to the Parties’ Agreed-Upon Choice of Venue Contained In aPre-Dispute Forum Selection Clause

Atlantic Marine Construction Co. v. J. Crew Co., et al.(United States Supreme Court)

The issue in this United States Supreme Courtappeal was how much deference and weight a federal court sitting in diversity should give to avalid, business-to-business forum selection clause(i.e., choice of venue) contained within a commercialagreement. The mandatory forum selectionclause in the parties’ agreement in this case provided that disputes “shall be litigated in theCircuit Court for the City of Norfolk, Virginia,

or the United States District Court for theEastern District of Virginia, Norfolk Division.The Parties hereto expressly consent to thejurisdiction and venue of said courts.”

Despite this clause, when a dispute arose, J. CrewCo. brought suit in federal district court in Texas.Placing the burden on Atlantic Marine Construc-tion Co. to prove why the forum selection clauseshould be enforced, the Court of Appeals for theFifth Circuit denied Atlantic Marine’s motion totransfer the case to the parties’ agreed-uponvenue. Wishing to vindicate the reasonable con-tractual freedom of business parties with regardto inter-party disputes, NELF filed an amicusbrief in the Supreme Court in support of AtlanticMarine. NELF argued that federal courts shouldgenerally enforce forum selection clauses underthe transfer of venue statute 28 U.S.C. §1404(a),unless the party resisting the clause, and not theparty seeking enforcement of the clause, couldshow extreme hardship under the standard artic-ulated in M/S Bremen v. Zapata Off-Shore Co., 407U.S. 1 (1972), such as by establishing grave incon-venience that was not foreseeable at the time ofcontract formation. In a unanimous decision inJanuary, 2014, that closely paralleled the argumentsin NELF’s brief, the Supreme Court held that aforum selection clause in a commercial agreementshould generally be enforced in deciding a motionto transfer venue under 28 U.S.C. § 1404(a). AsNELF had argued, the Court concluded that theparties to a forum selection clause have alreadyselected the convenient or proper venue for theresolution of their disputes, indeed that the designated forum is part of the larger quid pro quoreflected in the parties’ contract. Thus, the Courtconcluded, agreeing with NELF, the party seekingto evade this contractual choice of venue has ahigh burden to prove why the contract shouldnot be enforced. In short, the Court concluded, a federal court generally should not disturb theparties’ bargained-for expectations as to the appropriate venue for resolving disputes, the only remaining factor for consideration under §1404(a) being “the interest of justice,” whichrarely will override a valid forum selection clause.

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Opposing a Forum State’s Impositionof Personal Jurisdiction in an

Intentional Tort Case, Where the Acts Complained of Took Place in a Different State and the Defendant

Did Not Intend to Harm the Plaintiffsin the Forum State

Walden v. Fiore (United States Supreme Court)

The constitutional question posed by this casewas whether the Due Process Clause of the Four-teenth Amendment permits a court of the statewhere the plaintiffs have brought suit to exercisepersonal jurisdiction over an out-of-state defen-dant concerning an alleged intentional tort thathe committed against the plaintiffs in anotherjurisdiction. In the decision below, a sharply divided panel of the Ninth Circuit held that thefederal court for the District of Nevada had personal jurisdiction over the defendant, a federalDEA agent acting in Atlanta, Georgia, who confiscated the $97,000 gambling earnings ofplaintiffs, professional gamblers who were pass-ing through the Atlanta airport, en route fromPuerto Rico to Nevada. The agent (wrongfully)suspected that the money was connected to illicit drug activity (and the money was returnedto the plaintiffs about seven months later). Theplaintiffs sued the DEA agent in the District ofNevada in a Bivens action (an implied right of action under the Fourth Amendment against afederal official, akin to a § 1983 claim against astate actor). Recognizing the potential implicationsfor all out-of-state defendants of the lowercourt’s expansive jurisdictional decision, NELF,joined by Associated Industries of Massachusetts(“AIM”), filed an amicus brief in support of defendant arguing that, under well-settledSupreme Court precedent, no personal jurisdictioncan lie against an out-of-state defendant in an intentional tort claim unless he has “expresslyaimed” the injury at the forum state, i.e., by intending to harm the plaintiff in the forum state whenhe committed the alleged tort. NELF argued that

under Calder v. Jones, 465 U.S. 783 (1984)(Hollywood entertainer Shirley Jones hadpersonal jurisdiction to sue Florida-based National Enquirer journalist and editor in California for defamation: defendants

intended to harm plaintiff in California by “expressly aiming” content of false and harmful article at that state), to establish personal jurisdic-tion it is insufficient simply to allege that the defendant knew that the plaintiff had connectionsto the forum state at the time of the alleged misconduct and that the harm in the forum statemight have been foreseeable. To establish personaljurisdiction over an out-of-state defendant, theplaintiff must show that the defendant “expresslyaim[ed]” the harm at the forum state by intendingto harm the plaintiff there. On February 25,2014, in a unanimous opinion that closelytracked NELF’s amicus brief, the Supreme Courtreversed the Ninth Circuit and held that dueprocess bars the exercise of specific personal jurisdiction in Nevada over the defendant for hisconduct in Atlanta. As NELF had argued in itsbrief, the Court held that, to serve the essentialnotice function under the Due Process Clause, the minimum contacts requirement is satisfiedonly if the defendant has direct and meaningful connections of his own with the forum state.Contrary to the Ninth Circuit’s approach, dueprocess is not satisfied where, as here, the defen-dant has connections with the plaintiffs, who happen to reside in the forum state. The Courtagreed with NELF that the Ninth Circuit had lostsight of this key constitutional focus in effectivelyattributing all of the plaintiffs’ Nevada contacts tothe defendant, thereby defeating the defendant’sreasonable expectations on where he might besued for his conduct in Atlanta.

Seeking Supreme Court Review of a Class Arbitration Order Not Based

on the Parties’ Agreement.

Southern Communications Services, Inc., d/b/a SouthernLINC Wireless v. Thomas (United States Supreme Court)

The Petition for Certiorari in this case raisedagain the issue whether the Federal ArbitrationAct (“FAA”) permits an arbitrator to order classarbitration without the parties’ consent. Here the

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arbitrator failed to identify any contractual basisin the parties’ agreement to justify his order ofclass arbitration. In turn, the 11th Circuit affirmedthis arbitral award of class arbitration that lackedany contractual basis, under the mistaken beliefthat that the FAA requires this result. As NELFreminded the Court in its amicus brief on certiorari,“[c]lass arbitration is a matter of consent [and notcoercion]: An arbitrator may employ class proce-dures only if the parties have authorized them.” OxfordHealth Plans LLC v. Sutter, 133 S. Ct. 2064, 2066(2013) (citing Stolt–Nielsen S.A. v. AnimalFeeds Int’lCorp., 559 U.S. 662, 684 (2010) (FAA requires “a contractual basis” to justify award of class arbitration) (emphasis added)). Thus NELF arguedin support of the Petitioner that certiorari shouldbe granted to vacate an arbitral award of class arbitration that, by the arbitrator’s own admission,lacked any contractual basis whatsoever. Instead,the arbitrator based his award entirely on state judicial decisions favoring class actions for plain-tiffs with small-value claims. In so ordering classarbitration as a matter of public policy, and notas a matter of the parties’ consent, the arbitratorexceeded his powers under the FAA in substan-tially the same way as the overruled arbitral panelin Stolt-Nielsen. Moreover, the public policy groundsthat the arbitrator invoked are preempted by theFAA under AT&T Mobility LLC v. Concepcion, 563U.S. 321 (2011). NELF also argued that certiorari was warranted to dispel any lingering confusionover the requirements for a valid award of classarbitration under the FAA, as explained in thisCourt’s recent FAA decisions. The arbitrator misinterpreted Stolt-Nielsen as authorizing an arbitrator to order class arbitration based on contractual silence on the issue, and based onfactors outside of the parties’ agreement, such asstate decisional law. And the Eleventh Circuit, inturn, misinterpreted Sutter as requiring uncriticaljudicial deference to a facially invalid arbitralaward of class arbitration, such as the one in thiscase, which was based entirely on public policygrounds and not at all on the parties’ consent.Despite NELF’s and the Petitoner’s arguments,the Supreme Court denied the petition for certiorari on January 21, 2014.

Arguing that the Federal StatutoryBan on Paid Commercial Advertis-ing on Public Television StationsViolates the First Amendment.

Minority Television Project, Inc. v. Federal Communications Commission, et al.

(United States Supreme Court).

This Petition for Certiorari before the UnitedStates Supreme Court challenged the federalstatutory ban on paid commercial advertisementson public television, 47 U.S.C. § 399b(a)(1), onthe ground that it violates the First Amendment.The law defines a commercial advertisement as apaid message that promotes the sale of goods orservices by a for-profit entity. The petitioner, Minority Television Project, owns a small, inde-pendent public television station that serves themulti-cultural, educational needs of underrepre-sented members of the community in the SanFrancisco Bay Area, such as African-Americans,individuals living with HIV/AIDS, and variousneighborhoods in which English is a second language. The FCC determined that Minority TV had run commercial advertising and fined theorganization $10,000. Minority TV paid the finebut also filed suit in federal district court for theNorthern District of California, alleging that §399b(a)(1) and the FCC regulations violate theFirst Amendment because they are not narrowlytailored to further the government’s interest inpreserving the educational content of program-ming on public broadcast stations. NELF filed anamicus brief urging the Supreme Court to grantcertiorari to decide that, as NELF argued, publictelevision stations have a First Amendment rightto broadcast paid commercial advertisements,subject to reasonable, content-neutral limits, tosupplement the funding of their educationalspeech. NELF explained that, contrary to the purposes underlying the federal ban, in fact theeducational mission of an independent publicstation such as Minority TV (which has neverbeen able to obtain any federal funding throughthe Corporation for Public Broadcasting) couldbe endangered if that station were denied theright to seek additional revenue from the limitedbroadcasting of commercial advertisements. NELFvigorously opposed the Government’s argumentthat the banning of commercial advertisements

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on public television was essential to maintainingits mission, noting that, even if viewers reactednegatively to commercial advertisements, theFirst Amendment should permit public stationmanagers to respond intelligently to the situation,such as by withdrawing the advertisements, reducing their frequency, or toning down theirpromotional content. Conversely, the FirstAmendment should prohibit the Governmentfrom substituting its judgment about the wisdomof commercial advertisements for that of publicstations and their viewers. Free and robust debateon this public issue cannot take place with suchgovernmental interference. Despite the importantFirst Amendment question raised by this case, theSupreme Court denied certiorari on June 30, 2014.

Opposing a Dilution of the Massachusetts Supreme JudicialCourt’s Requirements for Shifting the Costs of Medical Monitoring

Genereux v. Raytheon Company (United States Court of Appeals for

the First Circuit)

In this case some former employees of Raytheonand their family members sought to impose onthe company the costs of their being monitoredfor possible future chronic beryllium disease. The employee plaintiffs claimed that they wereexposed to beryllium at a Raytheon plant wherethey worked and that their family members wereexposed to it secondhand, on the persons of theemployees when they returned home from work.In Donovan v. Philip Morris USA, Inc., 455 Mass.215 (2009) (“Donovan I”), the Supreme JudicialCourt held that when a defendant negligently exposes a plaintiff to a substance capable of causing a disease, the plaintiff may have a causeof action against the defendant in tort eventhough he does not suffer from the disease.Under Donovan I, the plaintiff ’s relief would bethat the defendant must bear the medical costs ofmonitoring the plaintiff for signs of the disease’s possible future advent. But before a

defendant can be held liable for these costs,the plaintiff must prove that he currently ex-hibits at least subclinical, or subcellular,changes that are understood by medical sci-

ence to be “warning signs” of a substantially in-creased risk of developing disease in the future. Aplaintiff must be able to prove the existence ofthese changes, in order to satisfy the tort elementof actual injury. On June 23, 2013, U.S. DistrictCourt Judge Mark Wolf granted Raytheon sum-mary judgment, ruling that the plaintiffs couldnot come forth with admissible evidence of the re-quired subcellular changes (i.e., for each of them,two positive tests for beryllium sensitivity, a“warning sign” of possible future beryllium dis-ease). The plaintiffs appealed to the First Circuit,arguing that the trial court misunderstood Dono-van and the relevant medical science. NELF, to-gether with Associated Industries ofMassachusetts, filed an amicus brief in support ofRaytheon. In it NELF explained that the plaintiffs’case depended on weakening, in a variety of ways,the standard set out in Donovan I. Their tort claimrequireds proof of a present, actual physical “impact,” which in this case would mean that theyeach have suffered subcellular changes symptomaticof beryllium sensitivity, the very thing these plain-tiffs could not show. NELF then explained how,under the erroneous standard advanced by theplaintiffs, a mere “risk of a risk” of future diseasewould give rise to a Donovan claim. NELF rebuttedin detail the use the plaintiffs made of Donovan I’ssuccessor case, Donovan v. Philip Morris USA, Inc.,268 F.R.D. 1, 16 (D. Mass. 2010) (“Donovan II”),showing, for example, that the Donovan require-ments are not limited to tobacco class actions andthat the plaintiffs held numerous erroneous viewsof the facts of Donovan II. Finally, NELF explainedthat amendment of their complaint, in order toseek refuge for their claims under an issue of lawleft undecided in Donovan I, should not be allowedbecause it would be futile. In its June 10, 2014 decision, the Court upheld summary judgmentin favor of Raytheon, declining to adopt theplaintiffs’ view of Donovan I and chastising theplaintiffs for trying to alter their appeal to encompass the issue left undecided in Donovan I.

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Assisting the Court in Evaluating a Proposed Consent Judgment Addressing Competition in the Business of Healthcare Services

Commonwealth v. Partners Healthcare System, Inc., et al.(Massachusetts Superior Court, Business Litigation Section)

In 2014 the Attorney General of Massachusettsinvoked the rarely used anticompetitive branch ofthe state’s Consumer Protection Act, G.L. chapter93A, to bring an action against Partners HealthcareSystem, Inc., a not-for-profit corporation that isthe largest healthcare provider in the Common-wealth. The Attorney General sought to blockPartners’ acquisition of three hospitals outside ofBoston, principally alleging that the acquisitionswould have a substantial anticompetitive effecton the business of healthcare in the relevant statemarket and would therefore harm the public interest. After intense negotiations, Partners andthe Attorney General agreed to entry of a consentjudgment that would permit the acquisitions totake place, but would subject Partners’ operationsto a series of restrictions intended to lessen anyanticompetitive effect of the acquisitions. When the trial judge then solicited commentsfrom the public at large concerning the proposedconsent judgment, NELF, in a classic instance of playing its role as amicus curiae in the publicinterest, responded by filing with the court a letter in which it discussed the legal standard bywhich the court should evaluate the agreementstruck by the parties. Having reviewed the sub-missions of the Attorney General and Partners onthe question of the legal standard to be used, andafter careful independent review of the relevantlegal authorities, NELF opined to the court thatthe Attorney General and Partners had accuratelystated consensus legal principles, drawn from avariety of federal and state antitrust cases, thathave guided other courts in a range of similar situations and that ought to guide this court aswell. NELF summarized the court’s inquiry intotwo areas. First, there were core judicial concerns,

including whether the consent judgmentwas the product of genuine adversarial negotiations, whether the terms reasonablyrelate to issues over which the court has

jurisdiction, whether the terms of any possiblefuture enforcement envisioned under the consentjudgment are sufficiently clear, and whether enforcement would be adequate and manageable.Second, there were concerns relating to the pub-lic interest. Here, the court should satisfy itselfthat the judgment does not clearly violate anywell-established public policy, taking due ac-count of the Attorney General’s unique discre-tionary powers in protecting the public interestthrough the prosecution and settlement of lawsuits (a discretion recently reaffirmed by the Legislature specifically as to healthcare providersand anticompetitive conduct under G.L. c. 93A).One point that NELF thought especially importantto emphasize was that the proposed consentjudgment did not rest on either a finding or anadmission of liability and therefore “the instrumentmust be construed as it is written, and not as itmight have been written had the plaintiff estab-lished his factual claims and legal theories in litigation” (quoting U.S. v. Armour & Co., 402 U.S.673, 682, 91 S.Ct. 1752, 1757 (1971)).

Arguing that an Agreement to Submit the Valuation of Stock to the Binding Decision of

Arbitrators is an Arbitration Agreement Enforceable Under the Massachusetts Arbitration Act

Vale v. New England Cleaning Services, Inc. (Massachusetts Supreme Judicial Court)

At issue in this case, pending before the Massachusetts Supreme Judicial Court (“SJC”),was whether a stock valuation provision in the articles of organization of a closely held Massachusetts corporation is enforceable underthe Massachusetts Arbitration Act, G. L. c. 251,§§ 1-18 (“MAA”). Under this familiar contractprovision, the shareholders agreed in advance to submit any future dispute about the value of a departing shareholder’s stock to a binding andfinal determination by an arbitral panel. Unlikethe common law, the MAA provides for expedited

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specific performance of an arbitration agreement,via a motion to compel arbitration, along withother streamlined statutory mechanisms designedto enforce the parties’ bargained-for expectations.

The departing shareholder in this case refused toarbitrate the value of his shares, seeking insteadan accounting in court, as part of his claim forbreach of fiduciary duty against the defendant,New England Cleaning Services, Inc. (“NECS”).The Superior Court denied NECS’ motion tocompel arbitration, concluding that the parties’valuation agreement was not an arbitrationagreement based on Palmer v. Clark, 106 Mass.373 (1871) in which (nearly a century before theMAA’s enactment), the Massachusetts court heldthat an appraisal is not an arbitration agreement.

In its amicus brief supporting NECS, NELF argued, based on more recent case law, that theparties’ valuation agreement was indeed an arbitration agreement enforceable under theMAA, which applies broadly to any “controversy”that the parties have designated in their agreementfor resolution in binding arbitration. In this connection, NELF argued that the old distinctionbetween an appraisal and an arbitration agreementunder Palmer should not survive the MAA. Mostimportantly, NELF pointed out that Palmer wasdecided when pre-dispute arbitration agreementswere voidable. Thus, in its day, Palmer actuallyprotected the rights of shareholders to an ap-praisal. Ironically, NELF argued, the lower courtin this case misapplied Palmer to burden appraisalagreements, and its decision should be reversed.

Urging the Rhode Island SupremeCourt to Affirm that Individuals and Businesses That Assist Law

Enforcement when Asked to Do So Are Shielded from Civil Liability

for Those Actions

David F. Miller v. Amica Mutual Insurance Co.(Rhode Island Supreme Court)

David Miller, the plaintiff in this case, is the former head of the trade association of car repairshops in Rhode Island. In 2001 he was the targetof two undercover sting operations based on allegations of insurance fraud. In the first stingoperation, Metropolitan Property and CasualtyInsurance Co. provided the Rhode Island StatePolice with a vehicle that was taken into Miller’sshop for repairs. This sting operation led toMiller’s being charged with billing more than$1,100 in fraudulent repairs. In a second stingoperation, Amica Mutual Insurance Co. provideda damaged vehicle and a fake insurance policy,and Miller allegedly billed $1,050 in fraudulentrepairs on that job. Miller was arrested and crim-inally charged. The charges were later dismissedbecause of evidentiary problems, but Miller wasrequired to surrender his license to run his repairshop. Subsequently, Miller sued Amica and Metropolitan for allegedly purposefully abusingthe legal process against him. After a jury foundagainst both insurers, the judge dismissed thejudgment against Amica for lack of evidence.Miller appealed. NELF filed an amicus brief insupport of Amica, urging the Rhode IslandSupreme Court to recognize in this case the ancient, widely-recognized Anglo-American publicpolicy of protecting private individuals from civilliability when they have rendered assistance tolaw enforcement officials at the latter’s request.First, NELF reviewed the numerous Rhode Island statutes, including insurance law statutes,that codify this policy, some of which acknowl-edge the living common law background of thepolicy. Then NELF discussed the policy’s broadercommon law background as most memorablyembodied in Justice Cardozo’s decision inBabington v. Yellow Taxi Corp., 250 N.Y. 14, 164N.E. 726 (1928). NELF concluded by examiningtwo federal cases that clarify the legal situationin which Amica found itself in this case.

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II.Individual Economic and Property Rights

The right to work and the right to own and use property are essential to our economic strength. Protecting individual economic and property

rights is a fundamental NELF goal.

Supporting Compensation ofLandowners For Property Taken Pursuant to Congress’s “Rails to

Trails” Legislation

Brandt v. United States (United States Supreme Court)

This case was the latest installment in the “railsto trails” litigation that, over the years, has dealtrepeatedly with the question of who owns thou-sands of miles of abandoned railroad rights ofway located all across the country. Specifically involved in this case are strips of land only a fewhundred feet wide that were granted to railroadsout of public land by the Federal Governmentunder the General Railroad Right-of-Way Act of1875 (“1875 Act”). Private property owners likethe Brandts claim that the railroads received onlyeasements in these grants and that, upon aban-donment, the land occupied by the easement reverted to the exclusive use and possession ofthe fee owner of the underlying land, who is nowoften a private party like the Brandts. In fact, thiswas precisely the position vigorously advocatedby the United States Government in Great NorthernRy. Co. v. United States, 315 U.S. 262 (1942), wherethe Supreme Court agreed that these rights of wayare easements and not limited fees with an impliedreversionary interest in the United States as grantor.

More recently, however, Congress has laid claimto these strips of land in order to convert theminto public recreational trials. As a result, theFederal Government flip-flopped, and its positionbecame that these rights of way were granted to

railroads as limited fees for the purpose ofoperating a railroad. On this view, thesegrants were entirely distinct from any grantof the fee interest in the surrounding lands

received from the United States by homesteadersor other private parties. On abandonment of usefor railroad purposes, the Government contendednow, in this case, the rights of way revert to theownership of the United States, which may thenfreely convert them to what use it chooses (here, recreational trails).

In 1976, the Brandts were granted fee simple titleto public land in Montana. Across the land ran aright of way granted under the 1875 Act. Whenthe right of way was declared abandoned in 2003,a dispute arose between the Brandts, who claimownership of the strip of land as an abandonedeasement, and the United States, which deniestheir ownership and claims the land for itself.After the federal district court found for the Government, the case went to the U.S. Court of Appeals for the Tenth Circuit. That court, in conflict with the Federal Circuit and the SeventhCircuit, accepted the Government’s (current)legal and historical analysis and affirmed thelower court’s judgment. It found Great Northernto be not exactly on point. The Brandts timely petitioned the Supreme Court for certiorari, and the petition was granted, the United States agreeing that definitive review of the tangledlegal history of these rights of way was needed.

NELF has previously been involved in “rails totrails” litigation. In 1996, NELF represented similarly situated property owners from Vermont.See Preseault v. United States, 100 F.3d 1525 (Fed.Cir. 1996). In that case, NELF argued that therights of ways were easements and the UnitedStates must pay if it wishes to take them for useas trails. In the present case, NELF filed a brief inwhich it undertook to rebut the Government’sassertion that the exclusive control formerly exercised by the railroads over the rights of waydemonstrates that the rights of way could nothave been easements but must have been fee interests. NELF reviewed legal authorities fromaround the time of the 1875 Act and showed that they generally recognized that, under certain circumstances, the holder of an easement couldsometimes exercise exclusive control, especially in the case of a dangerous instrumentality like a

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railroad. NELF then rebutted the Government’sassertion that, in the debate on the 1875 Act, key House members had acknowledged that the Government would retain a reversionary interestin the rights of way. Conducting a close readingof the text of the debate, NELF showed that thedebate actually revealed the members’ acknowl-edgement that the Act would depart from theprior practice of granting railroads fee interestsand would instead grant easements, just as theBrandts argue.

In March 2014 the Court, in an 8-1 decision writtenby Chief Justice Roberts, ruled in favor of theBrandts. Against the view taken by the Tenth Circuit and by the Solicitor General, the Courtruled that Great Northern disposes of the disputein its entirety; the Court declined to reopen legaland historical questions settled in that case seventy years ago. Still pending in the U.S. Courtof Claims is the Brandts’ claim against the UnitedStates for just compensation. That action hadbeen stayed until the issue of ownership could be decided by the Supreme Court. It remains tobe seen whether the Government’s keenness fortrails remains strong, now that it has to pay people like the Brandts for each right of way converted to a trail.

Arguing that the Doctrine of LachesShould Be Applicable to Bar StaleClaims Brought Against a BusinessUnder the Copyright Act’s “Rolling”

Statute of Limitations.

Petrella v. Metro-Goldwyn-Mayer, Inc. et al. (United States Supreme Court)

The question before the Supreme Court in thiscase was whether a laches defense could bar atechnically timely claim of continuous copyrightinfringement that began many years before thethree-year limitations period provided in theCopyright Act. In this case, the plaintiff knewthat her claim of copyright infringement first

accrued 18 years before she filed suit, and the defendants have shown that her delay inbringing suit has caused them to suffer economic and evidentiary injury. The issuearises because the Copyright Act’s three-year

limitations period restarts with each new act ofinfringement, in effect creating a rolling limita-tions period that allows plaintiffs who are awareof infringing activity to assert a claim wheneverthey decide to do so. The issue before the Courttherefore was whether there was any equitabletime limit to a plaintiff ’s ability to do this.

Here the petitioner, Paula Petrella, alleged thatMGM’s 1980 film Raging Bull infringed her inherited copyright in her late father’s 1963screenplay about former boxer Jake LaMotta, the subject of the film. Although Mr. Petrella assigned all of his rights in the 1963 screenplay to defendants, when he died in 1981 by operationof law his copyright passed to his daughter, Ms.Petrella, unencumbered by his earlier assignmentof his rights. Ms. Petrella’s attorney wrote toMGM alleging infringement in 1991, but she delayed in filing suit until 2009. MGM alleging,inter alia, that Ms. Petrella intentionally waitedto sue until Raging Bull was finally generatingprofits through the sale of digital copies (DVDsand Blu-ray discs), asserted a laches defenseagainst her claims. The Ninth Circuit agreed that laches barred Ms. Petrella’s otherwise timelyclaim. Ms. Petrella appealed to the U.S. SupremeCourt, and NELF filed an amicus brief on themerits in support of MGM.

In its brief, NELF argued that the laches defenseis a crucial equitable safeguard in a case, such asthis one, where the plaintiff has an indefinite rightto sue on the same recurring claim of copyrightinfringement, where she has been on notice ofthe alleged infringement for many years. The plaintiff ’s delay in this case allowed the defendant to continue investing its money andexploiting the same allegedly infringing workand, during that time, the evidence and witnessesthat the defendant might have relied were lost orno longer available. NELF also pointed out thatthe Court, in Nat’l R.R. Passenger Corp. v. Morgan,536 U.S. 101 (2002), had permitted just such alaches defense to bar an otherwise timely claim of hostile work environment.

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In a disappointing 6-3 decision on May 19, 2014,the Court reversed the Ninth Circuit and heldthat laches is not available to bar a timely claimfor monetary relief under the Copyright Act. In a strongly worded dissent echoing NELF’s brief,however, Justice Breyer, joined by Chief JusticeRoberts and Justice Kennedy, embraced the avail-ability of laches in a case of continuous copyrightinfringement such as this one, to prevent a plain-tiff from sitting on her rights strategically for 18years allowing the defendant to reproduce andotherwise exploit the same allegedly infringingwork, and then jump in to sue to collect threeyears’ of MGM’s highest profits. The dissent alsorecognized that, as NELF had argued, MGMraised several affirmative defenses that are nowimpossible to prove, due to the death or unavail-ability of witnesses. Finally, the dissent agreed withNELF that Morgan should apply here becausethat case did in fact hold that laches can bar atimely federal statutory claim for monetary relief.

Defending the Right of Private Property Owners to Forbid Political

Activity on their Premises

Glovsky v. Roche Bros. Supermarkets, Inc. (Massachusetts Supreme Judicial Court)

In this case, the plaintiff, Steven M. Glovsky, anattorney, while seeking to run for election to theMassachusetts Governor’s Council in 2012,sought permission to solicit nominating signaturesat a Roche Brother’s supermarket situated on aprivate 5-acre lot in Westwood, Massachusetts.The store, which has a policy against such solici-tations, denied him permission. Glovsky broughtthis pro se suit under the Massachusetts civilrights statute, alleging that Roche Brothers hadviolated his constitutional rights. He cited theMassachusetts Supreme Judicial Court’s decision Batchelder v. Allied Stores Int’l, Inc., 388Mass. 83 (1983). In Batchelder the SJC held thatthe owners of the huge, 84-acre Northshore Mallhad violated Batchelder’s rights under Article 9(freedom and equality of elections) of the

Massachusetts Declaration of Rights, whenthey prevented him from using certain common areas of the mall as a place to collect signatures to get himself put on the

ballot for legislative office.

NELF, together with six co-amici, filed an amicusbrief in support of Roche Brothers, arguing thatthe narrow holding in Batchelder did not apply tothe modest property at issue in this case and itssmall, purely utilitarian common area (the parkinglot and front entry way of the supermarket).NELF argued that crucial to the Court’s decisionin Batchelder was its factual finding that largeshopping malls, with their spacious common areasand numerous amenities intended to induce people to linger and congregate, sometimes mayassume some of the functions of a traditionalpublic downtown and therefore be deemed dedicated to the public as a practical matter.NELF argued that the Roche Brothers supermarketbore no resemblance to a “downtown,” lacked thescale of a place intended to draw the public tocongregate and socialize, did not in fact extendan invitation to the public to congregate and socialize, and that its only common area was asmall utilitarian space completely devoted to facilitating shopping.

Disappointingly, the Court in its October 2014decision accepted Glovsky’s view and rejectedNELF’s argument that the mall setting was crucial to the Batchelder decision. Paradoxically, it appeared to view the solitary supermarket asfunctionally like the mall in Batchelder and like adowntown because of the variety of things one canpurchase in a supermarket, while at the same timedenying that in Batchelder it had adopted func-tional equivalency as the standard. The Courtnonetheless dismissed Glovsky’s case, because the facts alleged did not support a Massachusettscivil rights claim.

In a vigorous dissent, Justice Robert J. Cordy rejected the majority’s decision, insofar as it extended the holding in Batchelder to this case.Paralleling NELF’s arguments, Justice Cordy rejected the majority’s equivalence of large, diversemalls with a solitary supermarkets, in regardboth to the scope of the facilities and to the nature of the invitation extended to the public

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by the owner. Noting that the decision placedMassachusetts alone on the extreme periphery ofthe law on this issue, he shared NELF’s concernfor the confusion introduced into commercialproperty ownership rights by the Court’s adoption of Glovsky’s position.

Opposing a Local Zoning Board’s Attempt to Block a Comprehensive

Permit for Affordable Housing Basedon a Misinterpretation of the RulesGoverning Appeals to the Housing

Appeals Committee

Scituate Zoning Board of Appeals v. Herring BrookMeadow, LLC and Housing Appeals Committee

(Massachusetts Appeals Court)

This case concerned a developer’s attempt to secure a comprehensive permit under Massachusetts General Laws c. 40B for a multi-unit dwelling in Scituate that would include affordable housing units. After protracted hearings,the local zoning board (“board”) denied a permiton the ground that a very small patch of the proj-ect site was defined as wetlands under the town’sregulations, and that local concerns thereforeoutweighed the regional need for affordablehousing. The developer appealed to the HousingAppeals Committee (“HAC”), where the case waslargely fought out over highly factual issues. The developer won the appeal and obtained itspermit, but the board appealed the HAC’s decisionto the Land Court, where the developer won again.

The board appealed to the Appeals Court andmade two legal arguments. Of these, NELF’s amicus brief concentrated on refuting the board’sview of what a developer must do to make out aprima facie case in an appeal to the HAC. The applicable regulation, 760 C.M.R. 56.07(2)(a)(2),states that an appellant establishes a prima faciecase by proving “that its proposal complies [with]the federal or state statutes or regulations, orwith generally recognized standards as to mattersof health, safety, the environment, design, open

space, or other matters of Local Concern.” Theboard contended that developers must provecompliance with restrictive local regulations as part of the prima facie case, not just with

State and Federal law dealing with the same local concerns. NELF argued that, in making this argument, the board misread the plain languageof the regulation. Compliance with local regula-tions is not mentioned. In fact, compliance withrestrictive local regulations is deliberately omittedfrom the developer’s prima facie case because thevalidity of such local concerns is precisely what isput into question by c. 40B as a matter of law. Because there is a history of towns using restrictivelocal rules as a means to keep affordable housingfrom being built within their boundaries, the reasonableness of local rules and the validity of thelocal concerns they address are matters that mustbe established by a town as part of its case, beforethe developer can be required to accommodatethe local rules. NELF expressed its view that theboard’s reading, if affirmed, could have a disastrouseffect on most developers’ ability to stay in theHAC and get a full review of a permit denial.

In a March 2014 decision, the Appeals Courtagreed with NELF that the approach advocatedby Scituate was inconsistent with the rationale of the comprehensive permit scheme and the role of the HAC in that scheme.

Fighting a State’s UnconstitutionalTaking of Privately Owned Funds In Order To Use Them to Reduce

the State’s Deficit

A. Gallo & Co. et al. v. Esty(United States Supreme Court)

The plaintiff beverage distributors in this casesought declaratory and monetary relief becauseof the state’s seizure of discrete funds of moneyowned by them. The money represents so-called“unclaimed” bottle-return “deposits.” “Deposits”is actually a misnomer. In 1980, when the statefirst required the distributors to pay five cents for each bottle returned to them by retailers, thedistributors chose to cover the additional expenseby adding five cents to the wholesale price. The“deposits” that came into their hands, therefore,

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were simply an undifferentiated part of the salesrevenues they received from retailers, not from con-sumers; the funds were not segregated in any way,were taxable to the distributors, and were acknowl-edged by the state environmental agency to belongto the distributors if they remained “unclaimed.”

In late 2008, in response to a severe budgetdeficit, the legislature passed a law mandatingthe use of separate accounts to hold all incomingand outgoing “deposits.” The legislative history is unequivocal that the purpose of the law wassolely to assist that body in determining the volume of money in question so that it could decide whether it might be worthwhile later topass a law escheating the sum for the purpose ofreducing the state’s alarming deficit. After onlythree months of the segregated accounts beingused, and before the first report on account bal-ances was due, in early 2009 an escheat law washastily passed redefining property rights in the“unclaimed deposits” and requiring the plaintiffsto surrender money from the segregated accountsto the state. The 2009 law required the plaintiffsto pay over not only the quarterly balances inthese accounts from the effective date of thestatute forward, but also balances held there bythe plaintiffs in the three preceding months passage of the law. The bottlers objected to thelatter demand, claiming it effected a taking offunds that had always been regarded, even by thestate, as their property, right up to the effectivedate of the 2009 law.

The trial judge found for the distributors, but inan appeal in which NELF filed a brief supportingthe distributors, the Connecticut Supreme Courtadopted the state’s theory that the bottlers simplyhad no property interest in the first quarter’sfunds. Declining to inquire into the backgroundhistory of “deposit” funds before the 2008 law,the Court held that the segregation of fundsmandated by that law was proof enough that the bottlers did not own the money and thatthere could be no taking.

In late 2013, the distributors filed a Petitionfor Certiorari in the U.S. Supreme Court renewing the takings arguments they hadmade to the state high court. NELF, together

with three co-amici, filed a brief in support. NELFargued that the seizure of the money, motivated,as the Attorney General freely admitted, by a severe budgetary crisis, was a classic instance ofgovernment unjustly imposing on a few personsan economic burden that should be borne by thepublic at large. Review, NELF argued, was all themore warranted because all three branches ofstate government were involved in the taking ofthe distributors’ established property rights, anddistributors have been left without a state remedyfor violation of their federal constitutional rights.

NELF pointed out that the state court reached itsdecision without proper examination of the historyof the state Bottle Bill and its implementation,despite the fact that distributors had based thedefense of their rights on these sources. Theanalysis the court performed to demonstrate thatthe distributors lacked “incidents of ownership”under the 2008 law was perfunctory and fatallyflawed, NELF contended. The 2008 law did noteven purport to divest them of any establishedrights; it was enacted to facilitate legislative fact-finding about the economics of the Bottle Bill,i.e., as an aid to deciding later whether to escheatsome or all of the “unclaimed deposits.” NELFpointed out that the distributors’ establishedproperty rights had been acknowledged by thestate agency charged with administering the Bottle Bill and that the state court, in denyingthese rights, had to adopt a forced and unnaturalreading of the agency’s admission.

Finally, aware of the split among the SupremeCourt’s justices over the applicability to a caselike this of the doctrine of “judicial taking” versus substantive due process, NELF asked themnot be dissuaded from granting the petition bythis lack of consensus. The state high court’s decision, NELF noted, could survive review undereither doctrine.

Unfortunately, on March 24, 2014 the SupremeCourt denied the petition.

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Arguing for a Balanced Approach tothe Enforcement of Easements

Martin v. Simmons Properties, LLC (Massachusetts Supreme Judicial Court)

In this case the plaintiff (Martin) owns a vacant,unused lot that is only accessible via an easement(Way A) over property owned by the defendant(Simmons). Simmons’s property abuts and surrounds Martin’s property, and is burdened byWay A. (The technical terms are that, with respectto his easement, Martin is the dominant propertyowner and Simmons is the servient propertyowner.) Both plots of land, as well as the easement,are registered with the Massachusetts Land Court.In August, 2007, Martin brought an actionagainst Simmons in the Land Court, allegingthat Simmons had “interfered with his right ofway by …placing encroachments in, parking on,and improperly placing fill within” Way A. Martinrequested that Simmons be ordered to remove allsuch alleged encroachments from Way A. Afteran extensive hearing and the submission of muchevidence, the Land Court denied Martin’s requestfor relief and entered judgment in Simmons’sfavor, noting among other things that Martinhimself had conceded that none of the allegedencroachments had ever had any adverse impacton his ability to use Way A.

Martin appealed to the Massachusetts AppealsCourt, which reversed the Land Court’s decisionwith regard to Way A, primarily on the groundthat Martin’s easement was registered with theLand Court and therefore, in the Appeals Court’seyes, was inviolable. Simmons then sought furtherappellate review from the Supreme JudicialCourt, which granted Simmons’ application.

NELF filed an amicus brief in support of Simmons,in which NAIOP Massachusetts joined as co-amicus.In its brief, NELF called the Court’s attention toits own 2004 decision, M.P.M. Builders, LLC v.Dwyer, 442 Mass. 87 (2004), in which the Courtadopted §4.8(3) of the Restatement (Third) ofProperty (Servitudes), which states:

Unless expressly denied by the terms ofan easement, as defined in § 1.2, theowner of the servient estate is entitledto make reasonable changes in the location or dimensions of an easement,at the servient owner’s expense, to permit normal use or development ofthe servient estate, but only if thechanges do not (a) significantly lessenthe utility of the easement, (b) increasethe burdens on the owner of the ease-ment in its use and enjoyment, or (c)frustrate the purpose for which theeasement was created.

442 Mass. at 90. While M.P.M. dealt with recorded(not registered) land, NELF argued that this difference in status has to do with the validity oftitle and therefore not with any issue relevant tothe application of the Supreme Judicial Court’sadoption of the Restatement section in M.P.M.(As both Simmons and NELF pointed out, noparty in this case was questioning Martin’s titleto his easement over Simmons land.)

Rather, NELF argued, what is important is theprinciple, recognized by the Court in M.P.M., thatan appropriate balance must be struck betweenthe rights and interests of dominant and servientproperty owners. As the SJC stated in M.P.M., “aneasement is created to serve a particular objective,not to grant the easement holder the power to vetoother uses of the servient estate that do not inter-fere with that purpose.” M.P.M., 442 Mass. at 92.

NELF argued in support of Simmons, that, under§4.8(3) of the Restatement and in light of theLand Court’s findings and Martin’s admissionthat Way A had not been unreasonably burdened,Martin had never been inconvenienced in anyway by Simmons’s improvements to Way A. In accordance with the policy behind § 4.8(3), theland of the servient owner should be permitted toattain its highest and best use when to do so doesnot adversely affect the dominant owner’s use ofhis easement. NELF therefore urged the SJC toreject the Appeals Court’s distinction based onthe registered status of the land and easement,and to affirm the Land Court’s decision denying Martin’s request for relief.

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In a victory for both Simmons and NELF, theSJC, on January 16, 2014, reversed the AppealsCourt and affirmed the judgment of the LandCourt. Agreeing with NELF, the SJC concludedthat the fact that the land and easement in thiscase were registered with the Land Court shouldmake no difference to the analysis. The SJC expressly confirmed and expounded upon itsadoption in M.P.M. of § 4.8(3) of the Restatement(Third) of Property (Servitudes) and agreed withthe Land Court “that the width of the easementproperty may be reduced as the defendant hasdone here, since the plaintiff does not disputethat at all times he has been able to use the remaining unobstructed portion of the easementfor the purpose of travel to and from his parcel.”

Defending the Rights of a SecuredJudgment Creditor Against an

Asserted Discharge of the Debt inChapter 7 Bankruptcy

Christakis v. Jeanne D’Arc Credit Union Supreme Judicial Court)

This case was the subject of an amicus call by theSJC and presents what is essentially an issue offirst impression in the Court, at least under modernbankruptcy law. The defendant credit union was a secured creditor that, in an earlier action,obtained a judgment against the present plaintiffand perfected a judicial lien on her real propertyto secure the judgment. It intended to sell theproperty in order to satisfy the judgment basedon her unpaid credit card debt. About a year afterthe credit union won its judgment and lien, theplaintiff filed for bankruptcy and her debts weredischarged under Chapter 7. She then broughtthis “remove cloud on title” action to forestall thesale of her property, arguing that the dischargeavoided the judgment on which the creditor’spre-bankruptcy lien rests. Other than a passingremark in a short, 1937 decision, the Court hasnot discussed, let alone decided, whether, in circumstances like these, a creditor retains a secured interest upon which it may foreclose.

Concerned by the failure of the parties andthe trial judge to discuss controlling federalcase law, NELF filed an amicus brief in sup-port of the credit union. In it, NELF identifies

Johnson v. Home State Bank, 501 U.S. 78 (1991), asproviding the rule of decision in this case; NELFexplained its reasoning and cited lower court decisions acknowledging the precedential statusof Johnson. Briefly put, a discharge of debts onlyreaches debts for which the debtor’s personal assetsin bankruptcy are liable; property interests (suchas, here, liens interests) validly conveyed to anotherparty before bankruptcy are not part of the debtor’slater bankruptcy estate, and thus the debts securedby such interests remain unaffected by a discharge.NELF rebutted Christakis’ attempts to exemptnon-consensual liens, like the judicial lien inquestion here, from the rule of Johnson. NELFpointed out the Johnson itself relied on two casesinvolving judicial liens, noting further that Chris-takis has conceded that she cannot the satisfy thesole statutory exception addressing such liens. Finally, NELF demonstrates that the few casesChristakis cites offer no support to her position;in particular, NELF observes that her strongest caseactually rests on a misquotation of an earlier case.

III. Employer/Employee Relationships

NELF is committed to maintaining a proper balance between the rights of employers and employees so that

business can flourish and provide employment opportunities.

Arguing That Sarbanes Oxley’s Protection for Whistleblowers Only

Covers Employees of Public Companiesand Does Not Cover Employees of Private Companies That Contract

With Public Companies.

Lawson and Zang v. FMR, et al. (United States Supreme Court)

In this case, which was before the Supreme Courton the merits, NELF, joined by Associated Industriesof Massachusetts, hfiled an amicus brief supporting

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FMR. The issue was whether the Sarbanes-Oxley(SOX) whistleblower anti-retaliation provisionapplies to employees of a privately owned companythat manages the FMR family of mutual fundspursuant to a contractual relationship. The disputed language of the SOX whistleblower provides that “[n]o [public] company. . ., or anyofficer, employee, contractor, subcontractor, oragent of such company, may discharge, demote,suspend, threaten, harass, or in any other mannerdiscriminate against an employee [who engages inprotected whistleblowing activity].” The statutedoes not define the term “employee,” italicizedabove. At issue was whether “employee” appliesonly to employees of the public company, orwhether it also applies to employees of contractorsand subcontractors of the public company.

The case arose in the unusual context of the mutual fund industry, in the sense that whilemutual funds are “public companies” under theSOX definition, they generally have no employeesof their own so that, arguably, the provision atissue would have no application. Instead, mutualfunds generally contract with investment man-agement companies, which are often privatelyheld, as in this case. The case was brought by twoformer employees of just such a management investment firm, FMR LLC and its subsidiaries(all of which are private companies), who suedunder the SOX whistleblower protection provision,alleging that FMR unlawfully discharged them in retaliation for raising concerns about allegedinaccuracies in a draft SEC registration statementand alleged improper cost-accounting methodolo-gies with regard to the funds. Plaintiffs prevailedin Federal District Court, which ruled that Congressintended to protect employees of private companiesthat contract with public companies. The FirstCircuit in a split-panel decision, reversed, in athorough opinion by Chief Judge Lynch, whoheld that the disputed term “employee” appliedonly to employees of public companies.

NELF’s amicus brief in support of FMR soughtthrough textual analysis to demonstrate that theSOX whistleblower provision did not protect the

employees of a public company’s contractorsor subcontractors because those entities areincluded in the statute solely in their capacityas representatives of the public company and

not as employers in their own right. In this connection, NELF also argued that, in fact, thestatute was intended, not to protect the privatecontractor’s employees, but a public company’swhistleblowing employee from the potential adverse actions of both his or her employer andthe employer’s contractor. NELF also argued thatit should have been no surprise to Congress thatmany employees in the mutual fund industry, e.g.the employees of private investment advisors,would effectively fall outside the scope of theSOX whistleblower provision. Congress has understood and regulated the mutual fund industry for decades and, NELF concluded, was fully aware of the application of the SOXprovision in a case like this one.

In a decision issued on March 4, 2014, six membersof the U.S. Supreme Court agreed with the em-ployees and, contrary to NELF’s arguments, heldthat the Sarbanes-Oxley whistleblower provisionprotects both a public company’s employees andthe employees of private contractors and subcon-tractors who work with public companies. Themajority based its decision primarily on thestatute’s failure to limit “employee” to a publiccompany’s employees. According to the majority,it would make no sense to interpret the whistle-blower provision as limited to a public company’semployees, when Congress knew that contractorsand subcontractors play a significant role in apublic company’s compliance with federal securities(and other) law—such as Enron’s accounting andlaw firms. This is even more so in the mutualfund industry, where the mutual fund itself hasno employees and instead relies entirely on theservices of the private investment advisor to comply with federal law.

Three members of the Court, however, adoptedNELF’s view and concluded that the statute protects only a public company’s employees, anddoes not cover the employees of a public company’sprivate contractors or subcontractors. In a some-what unusual alignment, Justice Sotomayor,joined by Justices Alito and Kennedy, agreed with NELF’s argument that contractors and subcontractors are named only in their capacity

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as representatives of the public company, and notas employers in their own right. The dissent alsoadopted NELF’s argument that the statute is notlimited to an employer’s retaliatory decisionsagainst its own employees (e.g., firing, demotion),but instead broadly covers all threats or harass-ments. These are actions that a contractor, as muchas the public company itself, is capable of com-mitting against a public company’s employees.

Seeking Supreme Court Review of theMassachusetts Supreme Judicial

Court’s 2009 Decision in Warfield v. Beth Israel Deaconess Med. Ctrs., Inc.

Bingham McCutchen v. Harwell (United States Supreme Court)

This employment discrimination case arose inCalifornia but involved an employment agreementwith a Massachusetts choice of law clause and amandatory arbitration provision. The case wasbefore the Supreme Court on a Petition for Cer-tiorari by Bingham McCutchen, a Massachusettslaw firm with California offices, seeking review ofthe Massachusetts Supreme Judicial Court’s 2009decision in Warfield v. Beth Israel Deaconess Med.Ctrs., Inc., 454 Mass. 390 (2009). NELF filed anamicus brief in support of Bingham’s request forSupreme Court review of the SJC’s decision, withwhich NELF has long disagreed. In Warfield, theSJC barred the arbitration of state-law employmentdiscrimination claims unless the employer identified those claims “in clear and unmistakableterms” in the arbitration agreement. In Warfield,the arbitration clause broadly covered all claims“arising out of or in connection with this [employment] Agreement . . . .” In NELF’s view,Supreme Court precedent clearly establishes that,under the Federal Arbitration Act (FAA), such abroadly worded arbitration agreement subsumesall statutory claims. Notwithstanding the SupremeCourt’s FAA precedent on the issue, the SJC ruledthat statutory discrimination claims were not included. The employer in Warfield did not seekSupreme Court review of the SJC’s decision. And so the Warfield rule requires employers in

Massachusetts to name state-law employ-ment discrimination claim in their broadlyworded, “all disputes” arbitration provisions.

In this case, the California courts, applying theWarfield rule, held that Bingham could not compelthe plaintiff to arbitrate under the arbitrationprovision in her contract. In its amicus brief sup-porting Bingham’s petition for certiorari, NELFurged the Supreme Court to take the case and abrogate the Warfield rule as preempted by theFAA. NELF argued that the Warfield rule shouldbe preempted because it defeats the FAA’s corepurpose of ensuring the enforcement of arbitrationagreements according to their terms. When, ashere, the terms of an arbitration agreement coverall claims arising from the parties’ employment relationship, the Court has long held that, underthe FAA, such an agreement includes all statutoryclaims falling within the agreement’s scope. In fact,in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,Inc., 473 U.S. 614 (1985), the Court consideredand rejected a heightened notice requirementsubstantially similar to the Warfield rule.

Despite both Bingham’s and NELF’s strong arguments, the Supreme Court denied certiorariin this case on January 13, 2014.

Arguing that the Massachusetts Wage Act allows a business to maintain a no-tipping policy

Meshna v. Scrivanos (Massachusetts Supreme Judicial Court)

At issue in this case is whether the MassachusettsWage Act, G. L. c. 149, § 152A, allows a businessto maintain a no-tipping policy that requests patrons not to tip employees. The plaintiffs claimthat their employer violated the Wage Act by preventing them from accepting tips from customers. NELF argues, in support of the defendant, that, in fact, the statute does not re-quire a business to permit tipping on its premises.Instead, the Act addresses only the consequencesthat result when a business does permit tipping—i.e., such a business cannot confiscate tips fromits employees. Thus the statute should be inter-preted as leaving undisturbed “the traditionalbroad authority of owners and proprietors of

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business establishments to adopt reasonablerules regulating the conduct of patrons or tenants.” Butler v. Adoption Media, LLC, 486 F.Supp.2d 1022, 1030 (N.D. Cal. 2007) (citationand internal quotation marks omitted). NELFurges the Court to interpret the statute as allowing each business to exercise its own judgment and decide for itself whether tipping is a good idea for its particular establishment.

Defending the Immunity from Suit, under the Workers

Compensation Act, of an Insured “Alternate” Employer

Molina v. State Garden, Inc.(Massachusetts Appeals Court)

This case raised an important issue of first impression under Massachusetts workers compensation law. The plaintiff worked for atemporary staffing agency (his general employer)and was sent out on a job assignment to the defendant (his special, or alternate, employer).He was injured on the first day of the assignment,while performing a task under the direct controlof the defendant on the latter’s premises. Later,after collecting workers compensation benefits,he sued the defendant on the theory that thecompany had not been his employer under work-ers compensation law and so does not enjoy anemployer’s immunity from suit. The trial judgegranted the defendant summary judgment, andthe plaintiff appealed. He argued that the defen-dant cannot be regarded as his employer becausethe benefits he received were paid on the tempagency’s workers compensation policy.

As NELF noted in its brief, filed with co-amicusAssociated Industries of Massachusetts, the defendant was named as an additional insured onan “Alternate Employer Endorsement” attached to the temp agency’s policy. As NELF successfullyargued several years ago in another legal context,the effect of being named as an additional insuredon a policy is to create a direct relationship betweenthe insurer and the additional insured for the

latter’s own liabilities, without regard towhich party paid the premium for the additional coverage or who is identified asthe named insured on the policy. Of crucial

importance in this connection was the fact thatthe workers compensation act specifically permits a special employer, like the defendant, to agree with the general employer that it, andnot the general employer, will be liable for payment of workers compensation, providedthat the special employer is in fact insured. The “Alternate Employer Endorsement” reflectsprecisely such an agreement and provides pre-cisely such insured status to the defendant. Infact, NELF pointed out in its brief, the use ofthis particular endorsement form is approved bythe Massachusetts Division of Insurance, a factof which both parties to the case were unaware. NELF called the court’s attention to the fact thatthis form is also used nationally in situationslike this one and for the same purpose as here. In New York, North Carolina, Texas, Delaware,and Minnesota, for example, the form is officiallyapproved for use and even prescribed for use.Molina’s contention that the use of the endorse-ment amounted to “an illusory promise” and anefarious “artifice” is therefore without merit.

For all these reasons, NELF concluded, StateGarden is clearly the relevant insured employerfor purposes of the work-related injury Molinasuffered and the company is therefore entitled to employer immunity from suit.

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Associate Justice, Massachusetts Superior Court(ret.); and Hon. Allan van Gestel, Associate Justice, Massachusetts Superior Court (ret.).

Finally, October saw the first of what we hopewill be an annual event: NELF’s John G.L. CabotAward Dinner. The purpose of the dinner is tohonor an outstanding individual in the New England community who shares NELF’s commit-ment to a balanced approach to free enterprise,reasonable regulation, traditional propertyrights, and the rule of law. The first recipient ofthe Cabot Award was Jay B. Stephens, SeniorVice President, General Counsel, and Secretary of Raytheon Company. Jay, a longtime memberof NELF’s Board and former Chair of NELF, wasthe perfect recipient of the first Cabot Award.Over 400 guests gathered to honor Jay and to learnabout his achievements and also, importantly, thework and mission of NELF. The evening celebrationincluded the first showing of a new and powerfulvideo describing NELF’s origins, its mission, and its work.

23

Public Presentations and Seminars

During 2014 NELF extended its advocacy ofmarket freedom and a balanced approach tobusiness and economic issues outside the courtroom with two formal programs and the inauguration of the John G.L. Cabot Award Dinner.

Our spring breakfast program in April was entitled “Succeeding in China,” and addressedthe current legal landscape in China, lessonslearned, and strategies for success in that rapidlydeveloping country. It also provided an overviewof what a legal practitioner needs to know aboutthe U.N. Convention on Contracts for the Interna-tional Sale of Goods. The program was moderatedby NELF Board member and Treasurer PaulineM. Booth, Managing Director, Duff & Phelps,LLC. Pauline was joined by Kenneth R. Berman, Partner, Nutter McClennen & Fish, LLP; LewisHo, Partner, Dechert, LLP (Hong Kong);Michael McGovern, Chief Counsel, Reinforce-ment Materials & Asia Pacific, Cabot Corporation;and Glenn Weinstein, Executive Vice President& Chief Legal, iRobot.

In November, our afternoon panel discussionand reception celebrated the fifteenth anniversaryof the Massachusetts Superior Court BusinessLitigation Session by presenting a special panelcomposed of the five present and former Admin-istrative Justices of the BLS. Approximately 150 guests attended the panel discussion andthe reception afterwards. Before the program,Joseph M. Tucci, CEO and Chairman of EMCCorporation, shared with the audience his appreciation of the BLS. The panel was moderatedby Paul T. Dacier, Executive Vice President andGeneral Counsel, EMC Corporation. Paul’s in-terlocutors were Hon. Ralph D. Gants, ChiefJustice, Massachusetts Supreme Judicial Court;Hon. Janet L. Sanders, Associate Justice, Massachusetts Superior Court; Hon. JudithFabricant, Associate Justice, Massachusetts Superior Court; Hon. Margaret R. Hinkle,

Honoree Jay B. Stephens speaking at the inaugural John G.L. Cabot Award Dinner

Corporate

Cabot Award Dinner

Individuals

Foundations

Miscellaneous

24

NELF2014 FINANCIAL REVIEW

NELF 2014 Individual Contributors

Susan H. Alexander

Nelson G. Apjohn

Mark T. Beaudouin

David A. Belden

Brian A. Berube

Joseph G. Blute

Pauline M. Booth

Martha Born

John P. Bueker

Harvey A. Creem

Paul G. Cushing

Paul T. Dacier

David Dearborn

Richard F. deLima

Raymond De Rise

Donald R. Frederico

Wilbur A. Glahn, III

Raymond A. Guenter

Thomas F. Hartch

R. Scott Henderson

Brent L. Henry

Thomas A. Hippler

C. Bruce Johnstone

K.C. Jones

James F. Kavanaugh, Jr.

Brian G. Leary

Duncan R. MacKay

Christopher Mansfield

Renée A. Miller-Mizia

Robert L. Paglia

Jack W. Pirozzolo

Harold I. Pratt

Roger A. Putnam

Lawrence J.Reilly

Sidney Rose

Lynda Harbold Schwartz

Daniel H. Sheingold

John A. Shope

Erik O. Skramstad

Jay B. Stephens

Campbell Steward

Stanley A. Twardy, Jr.

Morrison Des. Webb

Jay Williams

Through increases in support fromprograms and conferences, includingthe first John G. L. Cabot Award Dinner, and with continuing supportfrom NELF’s constituency, the Foundation realized an increase in revenues over 2013.

2.17%

5.85%

7.06%

44.56%

40.36%

Revenue

25

NELF 2014 Corporate Contributors

The Armstrong Foundation

Associated Industries ofMassachusetts, Inc.

Biogen Inc.

Blue Cross Blue Shield ofMassachusetts, Inc.

Boston Scientific Corporation

Brown University

Bulkley Richardson andGelinas LLP

Cabot Corporation

Carmody & Torrance LLP

Choate Hall & Stewart LLP

Conn Kavanaugh RosenthalPeisch & Ford LLP

Connecticut Business andIndustry Association

Covidien

Cummings Properties, LLC

Day Pitney LLP

Demeo LLP

Drummond Woodsum &MacMahon

Edwards Wildman Palmer LLP

EMC Corporation

Ernst & Young LLP

Eversource Energy

Foley Hoag LLP

Goodwin Procter LLP

Haemonetics Corporation

Holland & Knight LLP

Hollingsworth & Vose Co.

Jager Smith, PC

Jones Day

LeClairRyan

Liberty Mutual Group, Inc.

Littler Mendelson, P.C.

Looney Cohen & Aisenberg LLP

LPL Financial LLC

MassMutual FinancialGroup

McLane, Graf, Raulerson & Middieton, PA

Mintz Levin Cohn FerrisGlovsky and Popeo, PC

Nutter McClennen & FishLLP

Partners HealthCare System, Inc.

Pierce Atwood LLP

PricewaterhouseCoopers LLP

Putnam Investments

Raytheon Company

Ropes & Gray LLP

The Sarah Scaife Foundation

Sherin and Lodgen LLP

Skadden, Arps, Slate,Meagher & Flom LLP

Staples, Inc.

Steward Health Care System LLC

The Stop & Shop Supermarket Company LLC

Sullivan & Worcester LLP

Tedeschi Food Shops, Inc.

Textron Inc.

Vermont Mutual Insurance Co.

Verrill Dana, LLP

Waters Corporation

Wilmer Cutler Pickering Hale and Dorr LLP

NELF2014 FINANCIAL REVIEW

Legal

Communications & Development

Administration

NELF continued in 2014 to take a disciplined approach to cost containment; the major increase in expenses over 2013 derived from the costs incurred to launch the John G. L. Cabot Award Dinner.

17.16%

47.74%

35.10%

Expenses

26

NELF 2014 John G. L. Cabot Award Dinner Sponsors

PLATINUMKirkland & Ellis LLP

Raytheon Company

COCKTAIL RECEPTIONErnst & Young LLP

GOLDCabot Corporation

Hunton & Williams LLP

Jones Day

Skadden, Arps, Slate, Meagher & Flom LLP

Waters Corporation

SILVERBingham McCutchen LLP

Clifford Chance LLP

EMC Corporation

Hinckley, Allen & Snyder LLP

Liberty Mutual Insurance Co.

Littler Mendelson, P.C.

McCarter & English, LLP

Mintz Levin Cohn FerrisGlovsky & Popeo PC

PricewaterhouseCoopers LLP

Staples, Inc.

Steptoe & Johnson LLP

Wilmer Cutler Pickering Haleand Dorr LLP

TICKETSBiogen Idec, Inc.

Bulkley, Richardson and Gelinas, LLP

Foley & Lardner, LLP

Gilbert and Renton LLC

Gordon Bothers Group, LLC

Grant Thorton LLP

Haemonetics Corporation

LeClairRyan

McLane, Graf, Raulerson & Middieton, PA

Major, Lindsey & Africa

Nutter, McClennan & Fish

Robinson & Cole LLP

Sherin and Lodgen LLP

Sidley Austin LLP

Sullivan & Worcester LLP

Todd & Weld LLP

Wragge Lawrence Graham & Co LLP

BRONZEAlston & Bird LLP

Arnold & Porter LLP

Boston Red Sox

Choate Hall & Stewart LLP

Conn Kavanaugh RosenthalPeisch & Ford, LLP

Cummings Properties, LLC

Day Pitney LLP

DLA Piper US LLP

Edwards Wildman Palmer LLP

Foley Hoag LLP

Gibson Dunn & Crutcher LLP

Goodwin Proctor LLP

Holland & Knight LLP

McDermont Will & Emery LLP

Robins, Kaplan, Miller & Ciresi LLP

Ropes & Gray LLP

Sidley Austin LLP

Sloane and Walsh, LLP

CENTERPIECES Partners Healthcare Systems, Inc.

Upland Advisory LLC

DONATIONSBaker & McKenzie LLP

Bank of America

Cetrulo LLP

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2 0 1 4 Y E A R I N R E V I E W

New England Legal Foundation’s Directors,Trustees, and State Advisory Council Members constitute an all-volunteer forcewhose members represent distinction inlaw, business, and education. Many ofthese individuals further assist NELF byserving on one or more of the Foundation’sgoverning committees.

GOVERNANCE{E} Executive Committee. Counsels the President on the overall operations of NELF, including fiscal planning.

{L} Legal Review Committee.Decides which cases merit NELF’s participation as counsel.

{N}Nominating Committee. Ensures that those who are nominated as candidates to the Board of Directors meet the requirements of commitment, professionalism, and integrity.

{AU} Audit Committee.Oversees the preparation of NELF’s annual audit and performs other duties as assigned by the Board of Directors.

{D}Development Committee. Advises the President and the Board on fundraising strategies and development opportunities.

{C} John G.L. Cabot Award Dinner Committee. Oversees the planning and success of NELF’s annual John G.L. Cabot Award Dinner.

Officers

Chair

Mark T. Beaudouin, Esquire {E, C}Vice President, General Counsel, and Secretary

Waters CorporationMilford, Massachusetts

Vice Chair

Joseph G. Blute, Esquire {E, D, L}MemberMintz Levin Cohn Ferris Glovsky & Popeo PC

Boston, Massachusetts

President

Martin J. Newhouse, Esquire {E, N, C, D}PresidentNew England Legal FoundationBoston, Massachusetts

Treasurer

Pauline M. Booth {E, AU}Managing Director Duff & Phelps, LLCBoston, Massachusetts

DirectorsNelson G. Apjohn, Esquire {L}PartnerNutter, McClennen & Fish, LLPBoston, Massachusetts

John F. Batter, III, EsquirePartnerWilmerHaleBoston, Massachusetts

David P. Bergers, EsquireManaging Director, General CounselLPL Financial Holdings, Inc.Boston, Massachusetts

Brian A. Berube, EsquireSenior Vice President and GeneralCounsel

Cabot CorporationBoston, Massachusetts

Martha Born, Esquire {L}Vice President, Chief Litigation Counsel

Biogen, Inc.Weston, Massachusetts

Margaret A. Brown, Esquire {L}PartnerSkadden, Arps, Slate, Meagher & Flom LLP

Boston, Massachusetts

John P. Bueker, Esquire {L}PartnerRopes & Gray LLPPrudential TowerBoston, Massachusetts

Eileen Casal, Esquire General CounselHealthwise, IncorporatedBoise, Idaho

William J. Connolly, EsquireVice President and Senior Litigation Counsel

State Street Bank and Trust CompanyBoston, Massachusetts

Jerrol A. Crouter, Esquire {L}PartnerDrummond Woodsum & MacMahonPortland, Maine

Paul G. Cushing, Esquire {N, C}Legal Counsel and Section Head for Litigation

Partners HealthCare System, Inc.Boston, Massachusetts

Donald R. Frederico, Esquire {E, L}PartnerPierce Atwood Boston, Massachusetts

Mark W. Freel, Esquire {L}PartnerEdwards Wildman Palmer LLPProvidence, Rhode Island

Wilbur A. Glahn, III Esquire {L}DirectorMcLane, Graf, Raulerson & Middleton, PA

Manchester, New Hampshire

John M. Griffin, EsquireVice President, Deputy General CounselCovidienMansfield, Massachusetts

Ernest M. Haddad, Esquire {L}General Counsel EmeritusPartners HealthCare System, Inc.Boston, Massachusetts

R. Scott Henderson, EsquireDeputy General CounselBank of AmericaBoston, Massachusetts

Thomas A. Hippler, Esquire {N}Executive Vice President and General Counsel

The Stop & Shop Supermarket Company LLCQuincy, Massachusetts

Sandra L. Jesse, Esquire {E}Vice President and Chief Legal OfficerHaemonetics CorporationBraintree, Massachusetts

28

New England Legal Foundation’s Directors,Trustees, and State Advisory Council Members constitute an all-volunteer forcewhose members represent distinction inlaw, business, and education. Many ofthese individuals further assist NELF byserving on one or more of the Foundation’sgoverning committees.

GOVERNANCE2 0 1 4 Y E A R I N R E V I E W {E} Executive Committee. Counsels the President on the overall

operations of NELF, including fiscal planning.

{L} Legal Review Committee.Decides which cases merit NELF’s participation as counsel.

{N}Nominating Committee. Ensures that those who are nominated as candidates to the Board of Directors meet the requirements of commitment, professionalism, and integrity.

{AU} Audit Committee.Oversees the preparation of NELF’s annual audit and performs other duties as assigned by the Board of Directors.

{D}Development Committee. Advises the President and the Board on fundraising strategies and development opportunities.

{C} John G.L. Cabot Award Dinner Committee. Oversees the planning and success of NELF’s annual John G.L. Cabot Award Dinner.

K.C. Jones, EsquireManaging PartnerVerrill Dana LLPPortland, Maine

James F. Kelleher, Esquire {C}Chief Legal OfficerLiberty Mutual Group, Inc.Boston, Massachusetts

Brian G. Leary, Esquire {E, C}PartnerHolland & Knight, LLPBoston, Massachusetts

Stephanie S. Lovell, EsquireExecutive Vice President, Medicare and Chief Legal Officer

Blue Cross Blue Shield of Massachusetts, Inc.

Boston, Massachusetts

Traci L. Lovitt, EsquirePartnerJones DayBoston, Massachusetts

Duncan R. MacKay, Esquire {C, D, E}Deputy General CounselNortheast Utilities SystemBerlin, Connecticut

Kevin P. Martin, Esquire PartnerGoodwin Procter LLPBoston, Massachusetts

Elizabeth M. McCarron, Esquire {E}Vice President & Assistant General CounselEMC CorporationHopkinton, Massachusetts

James L. Messenger, Esquire ShareholderLeClairRyan Boston, Massachusetts

Renée A. Miller-Mizia, Esquire Managing DirectorAlvarez & Marsal LLCBoston, Massachusetts

Christopher D. Moore, EsquireGlobal Head of Litigation & Legal Policy

GE CapitalNorwalk, Connecticut

Kevin J. O’Connor, EsquirePartnerHinckley, Allen & Snyder LLPBoston, Massachusetts

Andrew C. Phelan, EsquirePartnerMorgan, Lewis & Bockius LLPBoston, Massachusetts

Timothy A. Pratt, EsquireExecutive Vice President, Chief Administrative Officer, General Counsel and Secretary

Boston Scientific CorporationMarlborough, Massachusetts

John R. Rathgeber, EsquirePresident and Chief Executive OfficerConnecticut Business and Industry Association

Hartford, Connecticut

Mark D. Roellig, EsquireExecutive Vice President and General Counsel

MassMutual Financial GroupSpringfield, Massachusetts

Lynda Harbold Schwartz, CPA, CFF, CGMA {C, E, N}

FounderUpland Advisory LLCNewtonville, Massachusetts

John A. Shope, Esquire {D}PartnerFoley Hoag LLPBoston, Massachusetts

ErikO. Skramstad,CPA,CFE,CFF{AU}US Advisory Forensics LeaderPricewaterhouseCoopers LLPBoston, Massachusetts

Jay B. Stephens, Esquire {E}Senior Vice President, General Counsel,and Secretary

Raytheon CompanyWaltham, Massachusetts

Jason A. Tucker, Esquire {D, L}Managing Director and Senior Litigation Counsel

Putnam InvestmentsBoston, Massachusetts

Stanley A. Twardy, Jr., Esquire {L}PartnerDay Pitney LLPStamford, Connecticut

Michael T. Williams, Esquire {C}Senior Vice President, General Counsel and Secretary

Staples, Inc.Framingham, Massachusetts

Carol Palmer Winig, CPAPartner, Assurance Services Ernst & Young LLPBoston, Massachusetts

29

NELF State Advisory Council MembersCouncils in each New England state remain critical to the success of NELF. The councils haveseveral important functions. Among these are insight at the state level into crucial economicissues and assistance to NELF in locating cases in all parts of the region.

CONNECTICUT

Donald E. Frechette, EsquirePartnerEdwards Wildman Palmer LLPHartford, Connecticut

Janet M. Helmke, EsquireSenior CounselNortheast UtilitiesBerlin, Connecticut

Brian T. Henebry, EsquirePartnerCarmody & Torrance LLPWaterbury, Connecticut

Margaret A. Little, EsquireLittle & LittleStratford, Connecticut

Erick M. Sandler, Esquire PartnerDay Pitney LLPHartford, Connecticut

Bonnie Stewart, EsquireVice President and General CounselConnecticut Business &Industry AssociationHartford, Connecticut

Kirk Tavtigian, EsquireLaw Offices of Kirk D. Tavtigian LLCAvon, Connecticut

MAINE

Jennifer C. Beedy, EsquireGeneral CounselFiber Materials, Inc.Biddeford, Maine

Peter L. Chandler, EsquirePrincipalBaker Newman & Noyes, LLCPortland, Maine

Anne B. Cunningham, EsquireSenior Corporate CounselDelhaize America Shared ServicesGroup, LLC

Scarborough, Maine

Jon A. Fitzgerald, EsquireVice President and General Counsel

Bath Iron WorksBath, Maine

Dana Lukens, EsquireShareholderBernstein ShurPortland, Maine

Hilary A. Rapkin, EsquireSenior Vice President, GeneralCounsel, and Corporate Secretary

WEX, Inc.South Portland, Maine

Eric J. Wycoff, EsquirePartnerPierce Atwood LLPPortland, Maine

MASSACHUSETTS

Michael Thad Allen, EsquireAssociateTodd & Weld LLPBoston, Massachusetts

Matthew C. Baltay, EsquirePartnerFoley Hoag LLPBoston, Massachusetts

Beth I.Z. Boland, EsquirePartnerFoley & Lardner, LLPBoston, Massachusetts

Gerard Caron, EsquireCounselCabot CorporationBoston, Massachusetts

James R. Carroll, EsquirePartnerSkadden, Arps, Slate, Meagher & Flom LLP

Boston, Massachusetts

David C. Casey, EsquireOffice Managing ShareholderLittler Mendelson, P.C.Boston, Massachusetts

Elissa Flynn-Poppey, EsquireMemberMintz Levin Cohn Ferris Glovsky & Popeo PC

Boston, Massachusetts

Jonathan I. Handler, EsquirePartnerDay Pitney LLPBoston, Massachusetts

Harold HestnesRetired PartnerWilmerHaleBoston, Massachusetts

Christine Hughes, EsquireVice President and General Counsel

Emerson CollegeBoston, Massachusetts

Steven W. Kasten, EsquirePartnerLooney Cohen & Aisenberg LLPBoston, Massachusetts

James F. Kavanaugh, Jr., EsquirePartnerConn Kavanaugh Rosenthal Peisch & Ford, LLP

Boston, Massachusetts

Andrew J. Ley, EsquirePartnerJager Smith P.C.Boston, Massachusetts

James O’Shaughnessy, EsquireDeputy General CounselCIRCOR International, Inc.Burlington, Massachusetts

Jack Pirozzolo, EsquirePartnerSidley Austin LLPBoston, Massachusetts

Donn A. Randall, EsquirePartnerBulkley, Richardson and Gelinas, LLPBoston, Massachusetts

Joseph F. Savage, Jr., EsquirePartnerGoodwin Procter LLPBoston, Massachusetts

A. Hugh Scott, EsquirePartnerChoate Hall & Stewart LLPBoston, Massachusetts

Sara Jane Shanahan, EsquirePartnerSherin and Lodgen LLPBoston, Massachusetts

30

Henry A. Sullivan, EsquireMemberMintz Levin Cohn Ferris Glovsky & Popeo PC

Boston, Massachusetts

Craig J. Ziady, EsquireGeneral CounselCummings Properties, LLCWoburn, Massachusetts

NEW HAMPSHIRE

Robert A. Bersak, EsquireAssistant Secretary and Assistant General Counsel

Public Service Company of New Hampshire

Manchester, New Hampshire

David M. Howe, EsquireConcord, New Hampshire

Todd D. Mayo, EsquirePrincipalPerspecta Trust LLCHampton, New Hampshire

Daniel J. Norris, EsquireDirectorMcLane, Graf, Raulerson & Middieton, PA

Manchester, New Hampshire

Adam B. Pignatelli, EsquireShareholderRath, Young and Pignatelli, P.C.Concord, New Hampshire

Paul C. Remus, EsquireShareholderDevine Millimet & Branch PAManchester, New Hampshire

Muriel RobinettePresidentNew England EnviroStrategies, Inc.Concord, New Hampshire

Jim RochePresident and Chief Executive Officer

Business and Industry Association of New Hampshire

Concord, New Hampshire

Thomas X. Tsirimokos, EsquireCounselBAE Systems Electronics and Integrated Solutions

Nashua, New Hampshire

RHODE ISLAND

Kenneth E. Arnold, EsquireSenior Vice President and General Counsel

Lifespan CorporationProvidence, Rhode Island

Joseph E. Boyland, EsquireVice President andAssociate General CounselFidelity InvestmentsSalem, Rhode Island

Julie G. Duffy, EsquireExecutive CounselTextron Inc.Providence, Rhode Island

Mitchell R. Edwards, EsquirePartnerHinckley Allen & Snyder LLPProvidence, Rhode Island

Michael B. Isaacs, EsquireExecutive DirectorDefense Counsel of Rhode Island

East Greenwich, Rhode Island

Peter V. Lacouture, EsquirePartnerRobinson & Cole LLPProvidence, Rhode Island

Beverly E. Ledbetter, EsquireVice President and General CounselBrown UniversityProvidence, Rhode Island

Stephen MacGillivray, EsquirePartnerPierce Atwood LLPProvidence, Rhode Island

Winfield W. Major, EsquireVice President and General CounselSperian Protection USA, Inc.Smithfield, Rhode Island

John A. Tarantino, EsquireShareholderAdler Pollock & Sheehan P.C.Providence, Rhode Island

VERMONT

Scott Barrett, EsquireGeneral CounselCritical Process Systems GroupColchester, Vermont

Richard N. Bland, EsquireVice President, General Counsel, and Secretary

Vermont Mutual Insurance Company

Montpelier, Vermont

Jaimesen Heins, EsquireSenior Counsel - OperationsKeurig Green Mountain, Inc.South Burlington, Vermont

Robert B. Hemley, EsquireShareholderGravel and SheaBurlington, Vermont

John H. Hollar, EsquireCo-Chair – Regulated Entities, Government & Public Affairs; Director – MontpelierDowns Rachlin Martin PLLCMontpelier, Vermont

Jacqueline Hughes, EsquirePartnerStorrow Buckley Hughes LLPMontpelier, Vermont

Donald J. Rendall, Jr., EsquireVice President, General Counsel, and Corporate Secretary

Green Mountain Power Corporation

Colchester, Vermont

Dale Rocheleau, EsquireSenior Vice President, General Counsel and Corporate Secretary

Central Vermont Public ServiceRutland, Vermont

Gregory D. Woodworth, EsquireSenior Vice President and General Counsel

National Life GroupMontpelier, Vermont

NELF State Advisory Council MembersCouncils in each New England state remain critical to the success of NELF. The councils haveseveral important functions. Among these are insight at the state level into crucial economicissues and assistance to NELF in locating cases in all parts of the region.

31

Wallace BarnesChairmanConnecticut Employment and Training Commission

Bristol, Connecticut

Richard W. Blackburn, EsquireRetired - Executive Vice President, General Counsel, and Chief Administrative Officer

Duke Energy CorporationWolfeboro, New Hampshire

John G. L. CabotManchester, Massachusetts

Richard F. deLima, EsquireCohasset, Massachusetts

Edward I. Masterman, EsquireOf CounselMasterman, Culbert & Tully LLPBoston, Massachusetts

Stephen B. Middlebrook, EsquireRetired- Senior Vice President and General Counsel

Aetna Life and CasualtyVirginia Beach, Virginia

Frances H. MillerProfessor of LawBoston University School of LawBoston, Massachusetts

Joseph E. Mullaney, EsquireHalifax, Massachusetts

Gerald E. Rudman, EsquireRudman & Winchell LLCBangor, Maine

Edward A. Schwartz, EsquireChestnut Hill, Massachusetts

Richard S. Scipione, EsquireRetired - General CounselJohn Hancock Financial Services, Inc.

Hingham, Massachusetts

Thomas C. Siekman, EsquireAsheville, North Carolina

Gary A. Spiess, EsquireRetired - Executive Vice Presidentand General Counsel

FleetBoston Financial CorporationMarblehead, Massachusetts

Morrison DeS. Webb, EsquireHarrison, New York

The role of Trustees is honorary, enabling these leaders to provide support and counsel to the Foundation.

NELF appreciates the hard work and dedication throughout 2014 of Staff Attorneys

Ben Robbins and John Pagliaro, Finance and Operations Manager Maria Karatalidis, and

Office Assistants Meridith Halsey and Nina Morris. Without their efforts, the accomplishments

described in the 2014 Year in Review would not have been possible.

NELFO U R T R U S T E E S

2 0 1 4

Providing a balance

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New England Legal Foundation