When May a Corporation Assert the Attorney-Client Privilege and the Work Product Doctrine Against Its Own Directors?

What happens when important principles of corporate governance—the right of a company to unfettered, confidential legal advice and the responsibilities of a director of a corporation—clash? This is the dilemma addressed by the Supreme Judicial Court in Chambers v. Gold Medal Bakery, Inc.

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This article first appeared in Massachusetts Law Review Vol. 95, No. 3, a publication of the Massachusetts Bar Association.

Unlocking Instrinsic Value Through Appraising Rights

By Laredo & Smith

The Delaware Courts have made clear that fair value in the context of an appraisal of a corporation’s going concern is distinct from a market-based merger price for the stock of that corporation. This article covers the instrinsic value of appraisal rights.

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This article first appeared in the Law 360, September 2013.

How New Trade Secret Legilation Impacts Pharma Compliance Programs

By Laredo & Smith

Two enacted criminal statutes have raised the stakes not only for individuals and corporations that misapporpriate another company’s trade secrets, but also for the companies responsible for safeguarding those trade secrets from theft. For the legal, human resources, and complaince departments of a pharmaceutical company, these statutes create both risks and opportunities and underscore the importance of re-assessing the company’s policies, training and internal controls relating to trade secrets and other proprietary information. This article outlines how taking proactive measures, pharmaceutical companies can leverage the strengthened EEA to improve an often neglected but increasingly important area of compliance that is directly tied to entrerprise risk management.

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This article first appeared in the Pharmaceutical Compliance Monitor, March 2013.

Caronia and the ‘New’ 1st Amendment Safe Harbor

By Laredo & Smith

The Second Circuit decision vacating Alfred Caronia’s criminal misbranding conviction on free speech grounds has been hailed as a landmark First Amendment case and a victory for the pharmaceutical company. Although lawyers and commentators have been arguing since the 1990s that off-label promotion (at least when accurate and non misleading) deserves some constitutional protection under the First Amendment, prior to Caronia efforts to get the issue before the federal courts have come up short. Amendment protection, will the U.S. Food and Drug Administration someday have to consider drafting guidance on a First Amendment safe harbor?

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This article first appeared in the Law 360, December 2012.

What CPAs Need to Know About Shareholder Duties in Closely-Held Corporations in Massachusetts

By Marc. C. Laredo

CPAs need to understand the rights and obligations that shareholders of closely-held businesses in Massachusetts owe to one another. CPAs also play a critical role in helping shareholders craft agreements and resolve disagreements among themselves. This article provides an overview of the legal framework in which closely-held corporations in Massachusetts function, including the definition of a closely-held corporation, the general rules that govern the shareholders of these entities, the importance of careful planning to avoid disputes among shareholders, and available remedies when disputes do arise.

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This article first appeared on MSCPAonline.org, Summer 2009.

Chapter 93 A and Post-Employment Conduct

By Marc C. Laredo

The Massachusetts Unfair and Deceptive Trade Practices Act (Chapter 93A) does not apply to disputes between employers and employees or among members of the same legal entity. It is far less clear as t whether and when a Chapter 93A claim will survive when it concerns conduct or events that occur after the employment relationship has ended. This article provides an overview of Manning v. Zuckerman and discussion of various employment-related contexts under which the “Manning Rule” applies. Among other points, the article also covers the need for clear appellate authority in this area.

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Shareholder Duties and Disputes in Closely-Held Corporations in Massachusetts

By Marc C. Laredo

Over thirty years ago, the Supreme Judicial Court issued its landmark ruling in Donahue v. Rodd Electrotype Co. of New England, Inc. in which it established standards for the governance of closely held corporations in Massachusetts and held that each shareholder in a closely-held corporation owes a fiduciary duty to other shareholders. In the years since this decision, courts have analyzed an array of issues involving management and control of closely-held corporations. This article reviews the ruling and then discusses significant developments that followed.

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Agree To Disagree: How To Break Up Without Destroying The Closely-Held Business

By: Marc C. Laredo, Esq. Laredo & Smith, LLP

The break up of a closely-held business, if not properly managed, can have disastrous consequences for all concerned. There is a means, however, for avoiding, or at least tempering, the negative effects of a break up: a well-crafted, written agreement between or among the founders that allows them to each achieve their personal goals while striving either (a) to maintain the business as an existing entity or (b) to dissolve the business in an orderly fashion so that the individual owners can continue to do business, albeit in a different form.

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Supplement: The Attorney-Client Privilege in the Business Context in Massachusetts

By Marc C. Laredo

The attorney-client privilege protects confidential communications — between a client or prospective client and an attorney — made for the primary purpose of obtaining legal advice or assistance. This is an update to the previously published article by Marc Laredo on attorney-client privilege in the business context in Massachusetts.

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The Attorney-Client Privilege in the Business Context in Massachusetts

By Marc C. Laredo

The attorney-client privilege protects confidential communications — between a client or prospective client and an attorney — made for the primary purpose of obtaining legal advice or assistance. Except in a few limited circumstances, the attorney cannot reveal these confidential communications to a third party or in the course of any legal proceeding. The applicability of the attorney-client privilege is usually fought out in the courtroom. The underlying communications that are the subject of those disputes, however, may occur far earlier, oftentimes before either a cause of action comes into existence or litigation is ever contemplated.

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