NKMS News

MCLE 13th Annual Conference New England Environmental & Land Use Law 2012

Tue, 17 Jan 2012 00:00:00 +1200

Tupper Kinder will be a panelist at the 13^th Annual New England Environmental & Land Use Law Conference to be held on Thursday, January 26, 2012 in Boston, MA. Tupper will be speaking on “New Hampshire and Rhode Island Survey of Cases and New Developments.” For more information and to register, please click here.

Catherine M. Costanzo to be a Co-Presenter at the NBI-Seminar �State and Local Government Law�

Thu, 12 Jan 2012 00:00:00 +1200

Attorney Costanzo will be a co-presenter at the NBI sponsored seminar, “State and Local Government Law”. The seminar will take place on January 31, 2012 in Manchester, NH. Attorney Costanzo will present Labor and Employment Law and Other Key Issues in Government Law. To register click here.

Attorney Holt published in New Hampshire Bar Journal

Thu, 01 Dec 2011 00:00:00 +1200

Attorney Bradley D. Holt and Stuart J. Glassman, MD authored an article recently published in the New Hampshire Bar Journal on Concussions and Student-Athletes; Medical-Legal Issues in Concussion Care & Physician and School System Risks. The article reviews the changes in medicine, and the current legal posture, concluding with some recommendations for preparing for the future. Follow the link below for the complete text of Holt and Glassman’s article.

Attorneys Vrountas, Loftus & Palmer Publish "Patent Troll" Article in the NH Bar Journal

Thu, 01 Dec 2011 00:00:00 +1200

Attorneys Christopher T. Vrountas, Richard S. Loftus, and Cori Phillips Palmer authored an article recently published in the New Hampshire Bar Journal on Patent Trolls. The article reviews the “patent troll” phenomenon, the developments in the U.S. patent laws that contributed to its occurrence, the recent reform enacted to address it, and how a company should respond to a demand from a purported patentee seeking payment of a license fee. The complete text of the article can be found below.

Rick Levine Quoted in Recent Massachusetts Lawyers Weekly Article

Wed, 23 Nov 2011 00:00:00 +1200

Rick Levine was quoted in a recent article in Massachusetts Lawyers Weekly (“MLW”). Citing Rick as an expert, MLW sought his opinion as to how lawyers have reacted to recent massive changes in the Massachusetts homestead law. MLW quoted Rick as opining that there was more certainty than there used to be in this area, with the new law having supplied answers to many questions that had previously been unsettled. MLW is the primary legal periodical for Massachusetts attorneys.

Attorney Posner Publishes Green Building Article in the ABA's Fall Fidelity and Surety Law Committee Newsletter

Thu, 10 Nov 2011 00:00:00 +1200

Attorney Bernard D. Posner authored an article recently published in the ABA's Fall Fidelity and Surety Law Newsletter on the current state of green building, the challenges and risks green building projects present, and how sureties can best deal with those challenges and risks. To view a copy of the article follow the link below.

Rick Levine and Ken Rubinstein Quoted in Engineering News-Record (ENR)

Mon, 24 Oct 2011 00:00:00 +1200

NK+M attorneys Rick Levine and Ken Rubinstein have been quoted in a recent article published by ENR focusing on the potential risks of a public owner’s default. The article focused on Rick’s and Ken’s recent presentation at the American Council of Engineering Companies’ Fall Conference in Las Vegas entitled, “The Insolvency of Governmental Units.” ENR is the leading publication for contractors, project owners, engineers, architects, government regulators and industry suppliers nationwide. For a link to the article, click here.

Rick Levine and Ken Rubinstein to Speak at the American Council of Engineering Companies� Mid-Year Meeting

Fri, 16 Sep 2011 00:00:00 +1200

The American Council of Engineering Companies (ACEC) has selected NK+M attorneys Rick Levine and Ken Rubinstein to present a program entitled: “The Insolvency of Governmental Units” at the ACEC’s Fall Conference on October 21 in Las Vegas. Rick’s practice heavily involves bankruptcy and insolvency law, and Ken’s heavily involves construction law. Joining them as co-presenters will be Mario Marcaccio, Deputy General Counsel of Camp Dresser & McKee; and Geoffrey Heekin, Executive Vice President and Managing Director of the Global Construction Practice of AON. The program will address the risks that arise when a governmental entity becomes insolvent or files for bankruptcy protection, and will offer practical steps that engineering companies can take to protect themselves.

The ACEC represents more than 5,000 firms and 500,000 engineers, architects, land surveyors, scientists, and other specialists, responsible for more than $200 billion of private and public works annually. Member firms range in size from a single registered professional engineer to corporations employing thousands of professionals. The annual Fall Conference is always a major event for the ACEC. For more information regarding the conference, click here.

Ken’s contact information is (617) 778-7545 (krubinstein@nkmlawyers.com), and Rick’s is (617) 778-7575 (rlevine@nkmlawyers.com).

NK+M Publishes Claims Handling in New England

Tue, 13 Sep 2011 00:00:00 +1200

Nelson Kinder + Mosseau, PC is pleased to announce the publication of Claims Handling in New England. The desktop reference book is a guide to the law of claims handling in each of the six New England states, where there are significant variances in statutes, regulations and case law. NKM is pleased to offer complimentary copies of this invaluable reference to insurance professionals in either hard copy or electronic format for easy use. Please contact Helen Wilson at hwilson@nkmlawyers.com to request your complimentary copy.

Attorneys Ayer and Bishop to Present at the 2011 Annual URMIA Conference

Thu, 08 Sep 2011 00:00:00 +1200

Attorney Allison Ayer and Attorney Laurie Bishop will co-present “To Arm or Not to Arm: Identifying and Managing the Risks of Arming Campus Police” at the 2011 Urmia Conference in Portland, OR on September 12. They will be joined by Paul Clancy, Director of Risk Management at Boston University and Ronald J. Guilmette, Chief of Police Services at Merrimack College.

This year’s conference, "Expedition Risk!" will help higher education risk managers map their own institutions' risks, navigate their unique risk "maps," and forge ahead into uncharted territories. Questions about the presentation or related issues should be directed to Allison Ayer and Laurie Bishop.

Attorney Nelson to host the webinar, "De-mystifying the Lost Commandments of Business Ethics"

Wed, 07 Sep 2011 00:00:00 +1200

Attorney Nelson will host the webinar, “De-mystifying the Lost Commandments of Business Ethics”.The 1.5 hour webinar sponsored by the American Council of Engineering Companies (ACEC) will take place on September 28, 2011. Attorney Nelson will present a broad ranging discussion of business practices involving hidden ethical pitfalls that can result in serious problems for well-intentioned people. To register, click here.

Adams, Ayer, & Bishop Publishes Arming Campus Police Assessment Article in National Journal

Thu, 01 Sep 2011 00:00:00 +1200

On August 20, 2011, the University Risk Management and Insurance Association (“URMIA”) published “Arming Campus Police: Managing the Risk” in its 2011 Annual Journal. The article was written by Rob Adams, Allison Ayer, and Laurie Bishop of NK+M’s College & University Practice Group. The article addresses some of the risk management questions an institution of higher education should ask in considering whether to arm its campus police force. A copy of the article is available at nkmlawyers.com/resources.

Kirsten B. Wilson lead State Chair for Council on Litigation Management.

Tue, 21 Jun 2011 00:00:00 +1200

(Boston, MA | Manchester, NH) –Nelson Kinder + Mosseau P.C. is pleased to announce that Kirsten B. Wilson has been designated as a lead State Chair for the prestigious Council on Litigation Management. The State Chair is a leadership role within the Council on Litigation Management (CLM) whose purpose is to assist in the development and growth of the Council, foster communications locally and provide more opportunities to participate. State Chairs also establish and monitor CLM Strategic Affiliations for state and local organizations/associations.

The Council is a nonpartisan alliance comprised of thousands of insurance companies, corporations, Corporate Counsel, Litigation and Risk Managers, claims professionals and attorneys. Through education and collaboration the organization’s goals are to create a common interest in the representation by firms of companies, and to promote and further the highest standards of litigation management in pursuit of client defense. Selected attorneys and law firms are extended membership by invitation only based on nominations from CLM Fellows.

Kirsten Wilson joined NK+M in 2009. She focuses her practice in complex litigation in our Professional Liability practice group. Her extensive experience includes over 12 years of trial work in both state and federal court in which she has tried over 50 cases to completion, and briefed and argued numerous cases before the New Hampshire Supreme Court. Ms. Wilson also serves as a legal analyst for both local and national news media.

“Kirsten is a highly respected attorney, and we congratulate her for her professional accomplishments,” states Nicholas K. Holmes, President of NK+M.

About Nelson Kinder + Mosseau P.C.

Nelson Kinder + Mosseau P.C. is a firm of trial attorneys with offices in Boston and Manchester, New Hampshire. The firm serves both regional and national clients. The firm’s attorneys pride themselves on achieving a high degree of knowledge of industry fundamentals and the laws that apply in certain select practice areas, such as medical services, professional liability, hospitality, construction, environmental, energy/utility, employment, and non-profit/ higher education. For more information, please call 617.778.7500 or visit www.nkmlaywers.com.

Kenneth E. Rubinstein Selected to Chair Presentation at BuildBoston

Mon, 13 Jun 2011 00:00:00 +1200

Attorney Rubinstein will chair an upcoming program entitled “A View from the Top” at BuildBoston this fall. Ken’s co-presenters include John Messervy (Director of Capital and Facility Planning for Partners HealthCare), Tom Goemaat (CEO of Shawmut Design & Construction), Peter Steffian (Chairman of the Board of Steffian Bradley Architects), and Lisa Mingoia (Corporate Counsel at Skanska USA Building).

BuildBoston is one of the premier events in Massachusetts construction, and NK+M congratulates Ken on being selected for this prestigious role.

John Kissinger to be a co-presenter at the NBI-Seminar �Legal Ethics for Everyday Practice�

Fri, 13 May 2011 00:00:00 +1200

Attorney Kissinger will be a co-presenter of “Legal Ethics for Everyday Practice”. The half day seminar sponsored by NBI will take place on June 21, 2011 in Manchester, NH. Attorney Kissinger will present on Ethical Client Communications and Record-Keeping Practices that Prevent Legal Malpractice Allegations. To register, click here.

NK+M is Pleased to Present the AGC of Massachusetts Coffee with the Contractors Breakfast with Suffolk Construction

Mon, 09 May 2011 00:00:00 +1200

NKMS is Pleased to Present
The Associated General Contractors of Massachusetts’ Coffee with the Contractors Program

                         BREAKFAST WITH
                    SUFFOLK CONSTRUCTION

Featuring:

Mark DiNapoli, President and General Manager, Northeast Region, Suffolk Construction

Moderators:

Kenneth Rubinstein, Esq., Nelson, Kinder + Mosseau, PC
Phillip Hammond, AGC of Massachusetts

Hear From One of Massachusetts' Leading Contractors

Join the AGC of Massachusetts for an informative and interactive program for construction professionals at all levels.
Hear first hand from Mark DiNapoli as he shares his professional and management experiences and discusses how Suffolk Construction has grown and adapted through the current recession.

DATE & TIME: Thursday, May 26, 2011

7:00 – 7:30am – Registration and Networking
7:30 – 9:00am – Q&A

Location:

Nelson, Kinder, Mosseau & Saturley, P.C.
Two Oliver Street, 10th Floor

Click here to register.

YOU WILL LEARN:

• Market Trends – See what sectors are heating up and where the work will be in 2011 and beyond.
• How to Grow – What best practices and procedures did the construction company use to grow?
• What “best practices” are transferrable to my company?
• How to Succeed Personally - What practices and procedures did the executive use to succeed and what should I be doing?
• How to Get Work – How do I get on the bid list? Pre-qualification steps and miss-steps.
• Expectations – What does the company executive expect? What will get me thrown off their list?
• Smaller Construction Firms Learning from Large Peers – What works and what doesn’t work?
• Construction Delivery Methods and Markets– Likes and dislikes, market recognition.
• What owners like, and hate, to see from their contractors.
• Answers to Questions – Bring your questions and hear straight talk from our guest speakers.

WHO SHOULD ATTEND: Business owners, general contractors, subcontractors, architects, engineers, CFOs, project managers and contract administration professionals.
For more information, please contact Kenneth E. Rubinstein at krubinstein@nkms.com or at (617)778-7548.

NK+M Sponsors URMIA's Regional Conference

Tue, 12 Apr 2011 00:00:00 +1200

NK+M is a proud sponsor of URMIA's Northeastern Regional Conference, Navigating Higher Education Risks: A Beacon to Guide You Over the Hill

The conference will be held on April 26, 2011 at the Babson Executive Conference Center.

NK+M Sponsors ABA Spring 2011 National Legal Malpractice Conference

Tue, 05 Apr 2011 00:00:00 +1200

Nelson, Kinder + Mosseau, PC is proud to support the ABA Spring 2011 National Legal Malpractice Conference as a gold-level sponsor. This year’s conference is presented by the ABA Standing Committee on Lawyers' Professional Liability and will be held April 27-29, 2011 at the Westin Copley Place, Boston, MA. The sponsorship goes to support the group’s continued mission to educate its members on Professional Liability issues.

Paul Milligan to be Published in The Construction Lawyer

Mon, 21 Mar 2011 00:00:00 +1200

On April 4, the American Bar Association will publish a major article written by our colleague Paul Milligan entitled, “Who Decides the Arbitrability of Construction Disputes.” The article will prominently appear in The Construction Lawyer, the flagship journal of the ABA’s Forum on the Construction Industry. Although parties frequently consider arbitration to be efficient, disputes about the arbitrability of claims divert time and resources from the merits of the dispute, potentially thwarting the efficiency of arbitration. Therefore, a critical consideration in drafting and analyzing arbitration agreements should be who decides questions about arbitrability, including whether a particular claim is arbitrable, and even whether the agreement to arbitrate is enforceable at all.

The article reviews who is empowered to determine the validity and enforceability of arbitration provisions. Even judges can’t agree and, in fact, Federal and state courts have taken different approaches. A federal “majority rule” has evolved, but inconsistent rulings continue to emerge from state courts concerning who—the court or the arbitrator—decides the “arbitrability” of a particular issue. The article discusses how, with diligence and an awareness of relevant law, construction industry lawyers and their clients can maximize the perceived major benefit of arbitration: the timely and cost-effective resolution of disputes.

For additional information regarding these arbitration issues, please contact Paul T. Milligan at (617) 778-7504.

Ken Rubinstein to Speak at the American Council of Engineering Companies� Annual Convention

Fri, 11 Mar 2011 00:00:00 +1200

The American Council of Engineering Companies (ACEC) has selected NK+M construction law attorney, Ken Rubinstein, along with Jonathan Sandoz (General Counsel of Shaw Environmental and Infrastructure) and Michael Conway (Senior Principal at GZA Associates) to co-chair a presentation entitled: Common Errors in Contract Drafting, Negotiation, and Interpretation at the ACEC Annual Convention on March 30th in Washington, D.C. This program addresses the issues that can surface from the misinterpretation of design documents and contract terms, and offers practical steps for engineers to avoid the liability associated with those mistakes.

The ACEC represents more than 5,000 firms and 500,000 engineers, architects, land surveyors, scientists, and other specialists, responsible for more than $200 billion of private and public works annually. Member firms range in size from a single registered professional engineer to corporations employing thousands of professionals. The Annual Convention is the ACEC’s premier event and will headline Speaker of the House, John Boehner and journalist, Bob Woodward. For more information regarding the Annual Convention, click here.

NK+M will host a reception at the Convention on March 30th for the firm’s clients and friends. For more information about the ACEC Annual Convention or to attend the NK+M event, please contact Ken Rubinstein at (617) 778-7548 or krubinstein@nkms.com

A Fresh Look at Dispute Avoidance

Mon, 07 Mar 2011 00:00:00 +1200

The Construction Law Committee of the Massachusetts Bar Association, co-chaired by Paul Milligan, Ken Rubinstein and Chris Petrini, will be presenting, "A Fresh Look at Dispute Avoidance and Resolution Options" on March 23rd. Cathy Shanks of the AAA and Kurt Dettman of Constructive Dispute Resolutions are the featured speakers. Please join us for a lively discussion of early intervention dispute avoidance. Please register on the Massachusetts Bar website. We look forward to seeing you there.

NK+M Lawyer Again Cited as Expert on Legal Ethics

Tue, 04 Jan 2011 00:00:00 +1200

Rick Levine was quoted as an expert in the January 3^rd edition of Massachusetts Lawyers Weekly on the subject of whether the Attorney General’s office has a conflict of interest in simultaneously pursuing civil remedies and investigating criminal action against the same party. Rick is one of many NK+M attorneys who are widely regarded as experts on legal ethics.

Paul Milligan Participates In American Arbitration Association Roundtable

Fri, 17 Dec 2010 00:00:00 +1200

Paul Milligan was recently one of a select group of Boston area construction industry attorneys invited to participate in a roundtable discussion with the American Arbitration Association on Construction Dispute Resolution: What is Working and What Needs to Change. The panel discussed and considered ideas that would improve the arbitration process, and meet the clients’ expectations. With the ongoing economic and litigation climate, this lively exchange will improve the arbitration process for all.

NK+M Attorneys Milligan and Rubinstein named among inaugural chairs of Massachusetts Bar Association Construction Law Committee

Wed, 01 Dec 2010 00:00:00 +1200

NK+M Congratulates NK+M attorneys Paul Milligan and Ken Rubinstein, as well as Chris Petrini of Petrini and Associates, on Being Appointed as the Inaugural Co-Chairs of the Massachusetts Bar Association Construction Law Committee.

The Construction Law Committee will provide training and networking opportunities to construction law attorneys throughout the Commonwealth. NK+M applauds attorneys Milligan, Petrini, and Rubinstein on being selected to lead this initiative.

Paul Milligan is a senior construction attorney in the Construction Industry group at Nelson, Kinder + Mosseau, P.C. in Boston. Mr. Milligan has considerable experience in construction litigation, representing owners, general contractors, subcontractors and design engineers. His experience includes large power plant and water treatment projects, airport construction work, and tunnels. In addition to his broad litigation experience, he also advises clients on statutory and Code compliance, contract interpretation, project management, and cost-efficient resolution of disputed claims.

Christopher Petrini is founding principal of Petrini & Associates PC, a five-attorney municipal law firm in Framingham that focuses on municipal law and public construction law and litigation. He has served as Framingham town counsel since 2001, and presently serves as special counsel to several municipalities and public owners throughout the commonwealth. Petrini previously served as a judicial law clerk for the Hon. Theodore M. McMillian of the United States Court of Appeals for the Eighth Circuit, in St. Louis, where he helped research and draft decisions on questions of federal law, several of which received national attention.

Kenneth E. Rubinstein is a senior construction attorney with Nelson, Kinder + Mosseau, PC in Boston. He regularly represents engineers, contractors, subcontractors, construction managers and other parties in complex negotiations and litigation, and frequently represents clients in connection with large-scale projects, including the construction of power plants, water treatment facilities, residential facilities, medical care facilities and national distribution facilities. Mr. Rubinstein has received regional and national awards for his work in construction, and is a frequent speaker and has authored numerous articles on construction and engineering issues. Prior to becoming an attorney, he worked for a Manhattan civil engineering firm that specializes in large public works projects.

For additional information regarding the new Massachusetts Bar Association Construction Law Committee, or to learn about upcoming programs sponsored by the Construction Law Committee, please contact:

Paul Milligan at (617) 778-7504 or pmilligan@nkms.com;

Chris Petrini at (508) 665-4310 or cpetrini@petrinilaw.com; or

Ken Rubinstein at (617) 778-7548 or krubinstein@nkms.com.

Kirsten Wilson joins the Council on Litigation Management

Fri, 01 Oct 2010 00:00:00 +1200

Nelson Kinder + Mosseau PC is pleased to announce that Kirsten Wilson has joined the prestigious Council on Litigation Management. The Council is a nonpartisan alliance comprised of thousands of insurance companies, corporations, Corporate Counsel, Litigation and Risk Managers, claims professionals, and attorneys. Through education and collaboration, the organization seeks to create a common interest in the representation by firms of companies, and to promote and further the highest standards of litigation management in pursuit of client defense. Selected attorneys and law firms are extended membership by invitation-only, based on nominations from CLM Fellows.

Kirsten Wilson joined NK+M in 2009. She focuses her practice in complex litigation in our Professional Liability practice group. Prior to joining the firm, Ms. Wilson served as a Senior Assistant Attorney General in the New Hampshire Department of Justice, where she led complex investigations and tried first and second degree murder cases as well as high profile white collar and public integrity crimes. She served as lead counsel on the first capital murder case tried to conviction in New Hampshire in the last 50 years. Her extensive experience includes over 12 years of trial work in which she has tried over 50 cases to completion, and briefed and argued numerous cases before the New Hampshire Supreme Court. Ms. Wilson earned her B.S. at Miami University and her J.D. from New England School of Law.

“Kirsten is a highly respected attorney, and we congratulate her for her professional accomplishments,” states William C. Saturley, President of NK+M.

NK+M Teams with Grossman, Tucker, Perreault & Pfleger, PLLC In IP Litigation

Wed, 08 Sep 2010 00:00:00 +1200

Nelson Kinder + Mosseau, (NK+M) P.C. and Grossman, Tucker, Perreault & Pfleger, (GTPP) PLLC are pleased to announce their new collaboration to offer innovative solutions for inventive clients who need patent and litigation expertise: The Intellectual Property (IP) Trial Practice Team.

While remaining independent law firms, the IP Trial Practice Team provides dispute resolution and litigation services in patent, copyright, trademark, trade secret, non-compete covenants and other intellectual property matters. “The Team began when lawyers from GTPP and NK+M met to form a team of professionals that could serve the specific needs of inventive clients faced with complex patent litigation,” said Kevin Carroll, a partner at GTPP. The experienced group of attorneys that NK+M and GTPP eventually brought together puts innovation first, and offers efficient problem-solving and legal expertise by tapping into the diverse talents of its professionals. “The Team’s fundamental innovation allows the client to obtain the benefits of a very large firm – diversity, depth of knowledge, experience – through the collaboration of Team members in a highly efficient, motivated, and flexible environment,” explained Don Perreault, a partner at GTPP.

The Team includes patent lawyers from GTPP with degrees and industry experience in electrical, chemical, and mechanical engineering; biochemistry, computer science, and more, as well as trial lawyers from NK+M who have experience litigating patent, copyright, trademark, trade secret, and restrictive covenant matters across the country. “This broad range of experience enables the Team to provide sophisticated yet cost-conscious clients with effective dispute resolution and litigation services when necessary,” commented Richard Nelson, Chairman of NK+M. “We are thrilled at the opportunity.”

Chris Vrountas, a partner at NK+M, agreed, noting that “this Team delivers value, and the client gets what he or she needs, when needed, from the best professionals to provide it, and at the right price. In the end, we know our clients are in business. We are not in this just to win an expensive trophy at the end of a case. We are in this to develop solutions for our clients.”

NK+M to Exhibit at NEFS

Thu, 11 Mar 2010 00:00:00 +1200

NK+M to exhibit at the Massachusetts Restaurant Association’s annual trade show, The New England Food Show (NEFS). This year, the NEFS exhibition will run in Boston from March 14 to March 16. Over 11,000 guests attend the show annually, which is geared towards companies that supply goods and beverages to the New England hospitality market. Come visit us at our booth and find out more how NK+M can assist your hospitality enterprise in meeting its business and legal goals. We truly look forward to meeting you.

Big Win for NK+M in the Restaurant Industry

Wed, 10 Feb 2010 00:00:00 +1200

The First Circuit Court of Appeals recently ruled that a restaurant manager was not unlawfully fired for being disabled because her disability prohibited her from performing the essential functions of her job. Bottom line, an employee has no rights under the Americans with Disabilities Act if he or she is not “qualified” for the job.

Here’s how it all happened: A restaurant manager claimed her employer fired her expressly because she was disabled, without trying to find an accommodation for her. The United States District Court for the District of Maine dismissed her claim because she could not prove she was a “qualified person with a disability” and because she could not provide the court with any “reasonable accommodation” that would have been effective. The fired manager argued that although she could not use her right arm for anything beyond holding a menu, she could still do her job by assigning physical tasks to other workers who were primarily responsible for those tasks. The District Court disagreed, however, as the undisputed record showed that an “essential function” of the manager’s job involved “filling in” where needed in all aspects of restaurant work, including cooking, cleaning and serving, and that the manager who could not fill in for those tasks when needed was not a “qualified person with a disability.” While the manager argued that her “primary” duty was “managing,” the District Court rejected that theory because the ADA does not concern itself with “primary” duties but “essential” duties. Just last month, on February 5, 2010, the First Circuit Court of Appeals affirmed the decision of the District Court and entered judgment in favor of the employer.

NK+M has a particularly close perspective on this case as this firm represented the defendant, Friendly Ice Cream Corporation, and won at summary judgment at the District Court level and later again on appeal at the First Circuit Court of Appeals. The members of the firm have long ties to the hospitality industry, which is the primary reason why the firm developed its Food and Hospitality Practice Group to work closely with its Employment Counseling and Litigation Practice Group. This win required knowledge of both the relevant employment law and the practicalities of the restaurant business.

For example, the plaintiff wanted to convince the Court that managers simply “manage” rather than perform physical labor, but the District Court and the First Circuit listened to the reason and experience in Friendly’s argument, as well as the undisputed facts, which showed how a restaurant manager cannot manage just from the sidelines, and how “filling in” on the spot at the grill or as the dishwasher cannot be delegated any more than infielders in baseball can delegate catching one or two ground balls that might shoot at them in any two and half hour game. Managing involves more than just wearing the uniform. It requires performance just in time. At the end of the day, both the District Court and the First Circuit Court of Appeals understood that and ruled in favor of Friendly’s.

This was an important win for Friendly’s and indeed for the restaurant industry. Restaurants like Friendly’s are challenging, but rewarding, places to work. They offer opportunities to advance, more than other industries, for all motivated people regardless of race, sex, education, religion or class. With nothing more than wit, honesty and willingness to work hard, anyone can advance and succeed in this business without the need for contacts, pedigrees or other barriers to market entry. A bad court decision that could have rewarded excuses and gamesmanship over teamwork and performance would have been a difficult millstone for the restaurant and the industry. In the end, managers can work as hard if not harder than those they manage and cannot expect their staff to do what they say but not as they do. The Court’s ruling, while important to employment law and to the restaurant industry, should not be a surprise as, according to one observer, it “makes perfect sense.”

The lawyers on the NK+M defense team for this case included Allison Ayer, Stephen Coppolo and Chris Vrountas. Congratulations to them and to Friendly’s for a well deserved win.

Webinar Presentation- Disparate Impact and Recent Cases from the Supreme Court

Fri, 02 Oct 2009 00:00:00 +1200

New Laws for the New Millennium

Wed, 20 May 2009 00:00:00 +1200

New Hampshire Magazine 2008 Top Lawyers

Sat, 04 Oct 2008 00:00:00 +1200

New Hampshire Magazine

NKMS CaseDesk 2.0

Tue, 25 Mar 2008 00:00:00 +1200

NH Attorneys Represent Three on Georgia's Death Row

Tue, 11 Mar 2008 00:00:00 +1200

New Hampshire Bar News - January 18, 2008

By: Craig Sander

The 107 men on death row in Jackson, Georgia have a lot in common: they have all been charged

and convicted of murder; they sit in the same wing of the Georgia Diagnostic and Classification

Center; and they all live within yards of the execution chamber where many of them will die. But

three of those men share something more: they are represented by New Hampshire attorneys.

Andru Volinsky of Manchester firm Bernstein, Shur, Sawyer & Nelson has represented Jimmy

Fletcher Meders since 1989. Larry Vogelman of Nixon, Raiche, Vogelman in Manchester, has

represented Raymond Burgess since 1996. And a team of attorneys from Nelson, Kinder + Mosseau has represented David Scott Franks since 2006. All were sentenced to die by lethal

injection and reside at the facility in Jackson.

States with active capital punishment systems often draw in attorneys from out-of-state and Georgia

is no different. The most active systems lack sufficient funding for indigent defendants, creating the

need for outside groups to bring support. Georgia’s system has proven to be particularly

troublesome, as found by the American Bar Association when they studied Georgia’s capital

punishment system and found several problems, including:

· Georgia’s statutory law, though it provides a statewide public defender program during trial

and direct appeal stages of a case, does not provide funds for defense on state or federal

habeas corpus hearings.

· Georgia’s statutory law contains only minimal qualification requirements for attorneys

handling death penalty cases.

· The level of funding provided by the state is not enough to handle the number of death

penalty cases in the state.

Accordingly, the ABA, the Southern Center for Human Rights, the American Civil Liberties Union

and the Georgia Resource Center have all developed programs geared towards bringing qualified

attorneys to represent capital murder defendants in Georgia and other states that have active

capital punishment systems.

These programs include the recruitment of attorneys for pro bono work. Both Andru Volinsky and

Larry Vogelman were recruited by Stephen Bright, director of the Southern Center for Human

Rights, an Atlanta-based, public interest legal project that provides legal representation to those

facing the death penalty and to prisoners challenging unconstitutional conditions in prisons and jails

throughout the South.

Volinsky, who has participated in capital appeals in six previous cases throughout the South, was a

private practitioner in New Hampshire when his former professor, Bright, called him and asked him

if he was interested in the Meders case. For Volinsky it was an easy decision.

“The cases in which defendants are sentenced to death are not fairly handled,” said Volinsky. “It’s

not fair. I have some skills and resources and have a responsibility in my small way to try to rebalance

the scales of justice.”

Vogelman, who has worked on several capital cases, was deputy director of the NH Public

Defender’s office when Bright called on him to take a pro bono capital case. In 1996, when he

entered private practice, he took the Burgess case.