Author: BMK Legal

Berluti McLaughlin & Kutchin LLP is proud to announce that Michael Bednarz was elevated to partner of the firm effective January 1, 2023.

Mike specializes in complex civil litigation.  Mike’s practice includes complex business disputes and employment actions.  He represents both employers and employees in actions involving discrimination, wage and hour, and restrictive covenant agreement issues, and has also represented businesses and their owners in internal disputes concerning fiduciary duties and in derivative actions.  Mike has tried cases in both state and federal courts, and has extensive experience in all forms of alternative dispute resolution, including arbitration and mediation.

Senior Partner Robert Berluti commented that,

“The decision to make Mike a partner at BMK was easy. He has a wonderful blend of technical legal expertise paired with excellent business acumen and good judgment. Our clients appreciate working with Mike because of his warm personal demeanor. Judges and opposing counsel respect Mike because of his no nonsense, straightforward approach to working through issues to keep cases on track to either amicable resolution or trial.”

Mike stated,  

“I am incredibly honored by this recognition and grateful to the partners of Berluti McLaughlin & Kutchin LLP for this opportunity.  It is a privilege to practice alongside the many exceptional attorneys at our firm.  I look forward to continuing to serve our clients and contributing to the firm’s success.”

Mike was named a Massachusetts “Rising Star” by Super Lawyers magazine from 2017 – 2022 and included on the “Ones to Watch” list by Best Lawyers in America in 2023.  He is a graduate of Saint Michael’s College and obtained his Juris Doctor, cum laude, from Suffolk University Law School where he was also a member of the Suffolk University Law Review.

BMK is proud to announce the following attorneys were included in the 2022 Boston Magazine Top Lawyers List:

John McLaughlin was selected as a Top Lawyer in Trusts and Estates.

Matthew Dunn was selected as a Top Lawyer in Real Estate.

The List is comprised of the top attorneys in a wide range of legal specialties, from business and criminal law to family and employment law. To compile this extensive guide, Boston magazine (in partnership with DataJoe Research) invited lawyers in the area to nominate up to three of their peers in a select number of specialties. The top vote-getters in each specialty were then reviewed by an advisory board of select lawyers, chosen for their credentials and the high number of votes they received.

All of us at Berluti McLaughlin & Kutchin congratulate John and Matt on their well-deserved recognition and are proud to have them as partners in our firm.

BMK is proud to announce that Robert Berluti, Edward Kutchin, Liane Keister, Michael Bednarz and Matthew Gens were respectively selected for inclusion in the 2022 Massachusetts Super Lawyers and Massachusetts Super Lawyers Rising Stars lists. Robert Berluti has received the recognition since 2005.

Super Lawyers recognizes outstanding lawyers from more than 70 practice areas who have attained a high degree of peer appraisal and professional achievement. The annual selections are based on a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. In addition, Super Lawyers Rising Stars honors attorneys who are either 40 years of age or younger or have been practicing for 10 years or less. No more than 2.5 percent of Massachusetts lawyers are selected each year to receive this honor.

Berluti McLaughlin & Kutchin LLC is proud to announce that Robert R. Berluti and Edward D. Kutchin have been selected as some of Boston’s Top Rated AV Preeminent Rated™ Lawyers for 2012 through 2023 by LexisNexis® Martindale-Hubbell®, the company that has long set the standard for peer review ratings. To create this list of Top Rated Lawyers, the legal information service company tapped into its comprehensive database of Martindale-Hubbell Peer Review Ratings to identify lawyers who have been rated by their peers to be AV Preeminent – the highest Peer Review Rating available. 

BMK’s clients received a favorable verdict in the Norfolk Superior Court in the amount of $376,000 (before statutory interest) in a trial arising from a serious head on automobile collision. Attorney Robert R. Berluti tried the case. Attorney Chris Davidson worked on all aspects of preparing the case for trial and on trial issues as they arose.

Berluti McLaughlin & Kutchin LLP is pleased to announce that Robert R. Berluti has been selected for inclusion in the 2023 edition of The Best Lawyers in America^© and Michael A. Bednarz has been selected for the Best Lawyers: Ones to Watch list.

Robert R. Berluti – Commercial Litigation; Litigation – Labor and Employment

Michael A. Bednarz – Litigation – Labor and Employment

Best Lawyers is the oldest and most respected peer-review publication in the legal profession.  A listing in Best Lawyers is widely regarded by both clients and legal professionals as a significant honor, conferred on a lawyer by his or her peers. The methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.

BMK Attorneys John McLaughlin, Kerry Northup and Christopher Worthy represented their client in connection with the sale of its equity interests in a Massachusetts-based manufacturing company for a purchase price of over $130 million.  The sale, to a strategic buyer backed by private equity, included the rollover of a portion of the purchase price into the consolidated enterprise as well as representation and warranty insurance, providing BMK’s client with a “walk-away” transaction with the full benefit of the purchase price and minimal risk going forward.

Robert Berluti and Michael Bednarz obtained a very favorable settlement through mediation in an FMLA, FLSA and Florida state law employment dispute pending in the United States District Court Middle District of Florida Tampa Division to end the lawsuit against their client, the employer.

On April 4, 2022, in Reuter v. City of Methuen, the Massachusetts Supreme Judicial Court (SJC) held that employers are strictly liable for treble damages for making late wage payments, even when an employee has not yet filed suit asserting a wage claim.

The City of Methuen discharged Reuter. When terminated, she had accrued $8,952.15 of unused vacation time. The City failed to pay her for this accrued vacation time on the date of termination, but rather paid her the full amount approximately three weeks later. The city also paid Reuter an additional $185.42, representing trebled interest for the three weeks between her termination and when the City paid the accrued vacation time. Prior to this decision, the prevailing view was that paying three-time the interest satisfied the employer’s obligation under the Wage Act for late payment of wages before the employee made a claim.

The SJC held that the City’s pre-suit payment of both the plaintiff’s unpaid, accrued vacation time and trebled interest were “late payments constitute[ing] clear violations of the statute.” Quoting the Massachusetts Wage Act, the SJC explained that under the statute “any employee discharged from employment … shall be paid in full on the day of his discharge.” The SJC rejected the notion that an employer could avoid liability for treble damages by paying the wages owed, plus trebled interest on the unpaid amount at a later date.

The Reuter decision makes clear that an employer is obligated to immediately pay an employee – on the same day of discharge in the case of an involuntary termination – all wages, including accrued, unused vacation time.  If an employer does not timely pay these wages, the employer will be liable for automatic treble damages and interest on the unpaid amount even if the amounts are paid later.  As recognized by the SJC, if an employer is not prepared to pay the wages for any reason including the need for calculations to be done, the employer should initially suspend, rather than terminate, an individual’s employment until the employer can comply with the Massachusetts Wage Act.  

If you have any questions regarding the foregoing decision, or Wage Act compliance in general, please contact attorneys Michael Bednarz or Robert R. Berluti.

BMK Attorneys Kerry Northup and Christopher Worthy were pleased to represent their client in connection with the $12+ million asset acquisition (including potential earn out payments) of a business in the Southern United States.  The transaction resulted in BMK’s client not only expanding its existing product lines and geographic footprint, but also resulted in its client obtaining several Fortune 500 companies as customers.  BMK was very pleased to assist its client in continuing its dramatic growth.

Bob Berluti and Matt Gens obtained summary judgment in the Massachusetts Superior Court on eight counts of a ten-count amended complaint brought by a disgruntled 50% shareholder against the other 50% shareholders in a Massachusetts closely held family corporation. Significantly, despite a shareholder deadlock, the summary disposition included the corporate dissolution claim because the plaintiff failed to show any evidence of ‘irreparable injury’ required under the applicable statute. The decision was reported in the March 7, 2022 edition of the Massachusetts Lawyers Weekly.

Berluti McLaughlin & Kutchin is thrilled to welcome Matthew Dunn and Jason D. MacKeen to the firm. Matt joins as a partner and Jason as an associate. Matt returns to BMK where he worked as an associate from 2011 to 2016. He left to form Dunn Law Group, P.C., where his practice continued to thrive. He focuses on all aspects of real estate including conveyancing and financing transactions, land use, and litigation including eminent domain. He represents major lending institutions, real estate investors and developers. These practice areas dovetail with BMK’s real estate practice in serving its client base of closely held businesses and owners. Jason will continue his practice in real estate litigation.

Matt received his Bachelor of Arts degree from Boston College and his J.D. from Suffolk University Law School. He initially practiced in Chicago before returning to his roots in Massachusetts.

Matt is a very thoughtful and thorough attorney. His clients quickly build trust in him because of his deep technical knowledge and his prompt and practical advice. Even after leaving BMK, I had the pleasure of working with Matt on several cases. We could not be more excited professionally and personally to have Matt join us as a Partner. – Bob Berluti, Partner

Matt grew up in Weymouth and now resides in Norwell with his wife and four children.

I have maintained a fantastic working relationship with the attorneys at Berluti McLaughlin & Kutchin LLP and have collaborated on many cases.  They are creative, effective, competent, and zealous advocates for their clients.  I could not be more exited to rejoin such a great firm, which provides quality and cost-effective legal representation in virtually every area of the law that applies to my clients.  Matthew J. Dunn, Esq.

Jason received his Bachelor of Arts degree from Bridgewater State University and his J.D. from Roger Williams School of Law.

BMK is a multi-disciplinary law firm specializing in civil trial advocacy, corporate governance, complex corporate transactions, commercial finance, real estate and sophisticated estate planning. Matt and Jason coming on board continues BMK’s expansion of its ranks to better serve its clients.

BMK Attorneys John McLaughlin, Kerry Northup and Christopher Worthy represented their client in connection with the acquisition of certain of the assets of a Mid-Western company in a transaction for aggregate consideration of over $70 million.  The “carve out” transaction required careful work to specify only those assets and liabilities of the target company that were being acquired.  BMK was pleased to have assisted its client in a strategic acquisition that expanded the client’s geographic footprint.

Attorney Robert R. Berluti has been included in the 2021 edition of The Best Lawyers in America for his work in Commercial Litigation. Lawyers named to The Best Lawyers in America publication are selected by their peers for professional excellence in the legal field. There are approximately 5% of practicing lawyers in the United States featured, making the list an exclusive and highly sought after accolade to attain. Published since 1983, Best Lawyers is regarded as the definitive guide to legal excellence, and lawyers are included based entirely on peer review and merit.

On December 17, 2021, the Massachusetts Supreme Judicial Court (SJC) held that the termination of an at-will employee for exercising their right to rebuttal under the Massachusetts Personnel Records statute is a violation of public policy.  In Meehan v. Med. Info. Tech., Inc., an employee alleged that his employer terminated him after he filed a rebuttal in response to being placed on a “performance improvement plan.”  The trial court dismissed the employee’s complaint because the right to file a rebuttal under the personnel record statute was not a sufficiently important matter of public policy.

The SJC reversed the trial court’s decision. The Massachusetts Personnel Records statute gives an employee who disagrees with information contained in his or her personnel record the right to supplement the personnel record with a written statement explaining their position. The SJC held that terminating an employee for filing a written response to a personnel record violated the public policy exception to at-will employment.  Under that exception, employees may not be terminated for asserting a legally guaranteed right, such as filing a worker’s compensation claim. The SJC explained that in enacting the personnel records statute, the Legislature determined that the right to file a rebuttal is a matter of public significance.

The Court rejected the notion that its decision undermined the employment at-will doctrine, explaining that an employer remains free to terminate an employee for any lawful reason or no reason at all, with or without notice. According to the SJC, an employee’s rebuttal simply memorializes his or her position, but does not create any additional rights.

However, the Court limited an employer’s ability to take any retaliatory action against an employee for the contents of an employee’s rebuttal, explaining that emotions inevitably run high in this process, and the employee’s expression of disagreement with information in a personnel record, “no matter how intemperate and contentious the expression” may not be grounds for termination. The Court noted, though, that this protection from termination does not extend to “threats of personal violence, abuse, or similarly egregious responses.”

Whether you are an employer contemplating taking action against an employee after their filing of a rebuttal statement, or an employee who believes that you may have been retaliated against for exercising this legally guaranteed right, please contact either Michael Bednarz, Esq. or Robert R. Berluti, Esq.   

Robert R. Berluti and the BMK trial team secured a denial of a Motion for Preliminary Injunction filed in the Norfolk Probate Court to remove Richard Vitale as trustee of the trust formed by his long-time friend and client, Richard Labadini. Read More Here

Kerry Northup and Christopher Worthy advised the Callanan Veterinary Group in connection with lease negotiations and financing facilities in connection with expanding its business locations and the retirement of a partner via the sale of his stock.  The Callanan Veterinary Group owns and runs several small animal veterinary hospitals in Greater Boston.

Roberta Tonsberg sued her neighbor for violating deed restrictions prohibiting swimming pools.  She won her lawsuit in Land Court.  While it was pending, her neighbor sued her for abuse of process and three other claims.  She filed an Anti SLAPP Motion that was denied by the Superior Court.  She appealed and the Appeals Court remanded the case finding the Superior Court did not apply the right analysis.  On remand, the Superior Court allowed her Anti SLAPP Motion dismissing all claims against her.  The remainder of the suit against her husband settled shortly thereafter with the Plaintiff dismissing its lawsuit receiving no payment.  Read More Here.  Appeals Court Decision.

Robert R. Berluti has secured summary judgment in Land Court to defeat claim of adverse possession against his Landowner client. Read More Here

John McLaughlin, of Berluti McLaughlin & Kutchin LLP, has been named a 2020 Massachusetts Go To Lawyer by Massachusetts Lawyers Weekly. The “Go To Lawyer” award recognizes the top business lawyers across the Commonwealth and highlights lawyers who are experts in their field. Read the full article below.

All of us at Berluti, McLaughlin, & Kutchin congratulate John on his well-deserved recognition and are proud to have him as one of the partners in our firm.

Massachusetts Go To Lawyers: Business

See full release here.

BMK is proud to announce that Robert Berluti, Edward Kutchin, Liane Keister and David Hansen were respectively selected for inclusion in the 2020 Massachusetts Super Lawyers and Massachusetts Super Lawyers Rising Stars lists. Robert Berluti has received the recognition since 2005.

Super Lawyers recognizes outstanding lawyers from more than 70 practice areas who have attained a high degree of peer appraisal and professional achievement. The annual selections are based on a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. In addition, Super Lawyers Rising Stars honors attorneys who are either 40 years of age or younger or have been practicing for 10 years or less. No more than 2.5 percent of Massachusetts lawyers are selected each year to receive this honor.

Attorney Liane Keister participated in a virtual ceremony on March 18, 2020 where she was sworn into the New Hampshire Bar Association.

See full article here.

BMK Attorney Robert Berluti was quoted in the publication, Law 360, commenting on the Supreme Justice Court’s ruling in the case of Parker v. EnerNOC et al., that was ruled in his client’s favor.

Attorney Robert Berluti’s client, Francois Parker, alleged gender discrimination, Wage Act violations, breach of contract and breach of the covenant of good faith and fair dealing in her August 2016 complaint against her former employer EnerNOC.

In 2018, a jury returned a verdict in Parker’s favor awarding a judgment in excess of $500,000 dollars for her unpaid salary, fringe benefits, treble damages, attorneys’ fees and costs and pre-judgment interest.

EnerNOC then appealed the judgment in 2019 and argued to the Supreme Judicial Court in attempts to overturn the judgment.

Despite EnerNOC’s efforts, the Supreme Judicial Court ruled in Francoise Parker’s favor and in support of the Wage Act.

Attorney Berluti commented on the Supreme Judicial Court ruling in Law360 stating,

“If the SJC did not rule the way it did, employers would have a loophole to avoid paying commissions by terminating employees prior to the commission payment becoming due,” he said. “Hardworking plaintiffs, like Fran Parker, would not receive the full benefit from the services she rendered to EnerNOC.” (Villani, Chris. “Massachusetts Top Court Triples Fired Worker’s Jury Award”, Law 360).

Berluti McLaughlin & Kutchin LLP is proud to announce that Liane Keister was elevated to partner of the firm effective January 1, 2020.

Liane Keister’s practice serves the diverse needs of businessowners and their businesses, families, and high net worth individuals.  Liane focuses on planning for family businessowners, including coordinating estate planning, corporate and succession needs.  She has extensive experience advising businesses on formation, governance, shareholder agreements, buyouts, redemptions and reorganizations.  In addition, she represents non-profit entities and private family foundations.  Her planning for individuals and families includes all aspects of private client work.  She also has extensive experience in commercial and residential real estate.

Senior Partner John McLaughlin commented that,

“Liane is an outstanding lawyer who has demonstrated exemplary commitment to her clients and to our firm’s success.  We are delighted to welcome Liane as a new partner of the firm.”

Liane stated,  

“I am honored and grateful to the partners of Berluti McLaughlin & Kutchin LLP for this recognition and opportunity.  It is a privilege to practice alongside the exceptional attorneys at this firm who care deeply about their clients.  I look forward to contributing to the firm’s continued success.” 

Liane was named a Massachusetts “Rising Star” by Super Lawyers magazine in 2018 and 2019.  She is a graduate of Brown University and obtained her Juris Doctor, cum laude, from Suffolk University.  She was a member of the 2004 and 2008 U.S. Women’s Olympic rowing teams, serves as the Vice President of the Boston Rowing Federation, and formerly served as a member of the Board of Directors of the Riverside Boat Club.

Attorney Robert Berluti was recently elected a Fellow of the American Bar Foundation in recognition of exemplary dedication to the highest principles of the legal profession, commitment to the welfare of society, and support for the ideals, objectives, and work of the American Bar Foundation. The society is comprised of attorneys, judges, law faculty and legal scholars who have demonstrated outstanding commitment to the highest principles of the legal profession. Members are elected by their peers and membership is gained by only one percent of lawyers licensed to practice in each jurisdiction. Fellows support the groundbreaking research of the American Bar Foundation on the role and impact of the legal process on society.

BMK attorneys Robert Berluti and Michael Bednarz obtained a judgment in excess of $500,000 on behalf of their client against his former employer and its individual limited liability company manager for violation of the Massachusetts Wage Act. After a bench trial in Suffolk Superior Court, the Court ruled that the firm’s client was not a partner in the construction company business venture, was improperly classified as an independent contractor as opposed to an employee and failed to pay him his duly earned wages. The $500,000+ judgment included the client’s unpaid salary, fringe benefits, treble damages, attorneys’ fees and costs, and pre-judgment interest.

In a case of first impression, Robert Berluti and Ted Whitesell secured Summary Judgment for a BMK client in a dispute over whether a plaintiff/tenant’s right of first refusal to purchase real estate should trump BMK’s client’s option to purchase the same property. The tenant’s right of first refusal was triggered and exercised by the tenant resulting in its purchase of the real estate in question. The tenant then assigned its rights in the purchase and sale agreement for the property to an affiliated entity, left its lease in place and claimed the right of first refusal remained intact and should trump the option to purchase. The Land Court entered summary judgment determining the option to purchase was not subordinate to the right of first refusal, which the Land Court held was extinguished when exercised. The Appeals Court affirmed, without reaching the substance of the plaintiff/appellant/tenant’s new argument because it was asserted for the first time on appeal.

BMK Attorneys Robert Berluti and Ted Whitesell obtained a memorandum of lis pendens on behalf of their client and defeated a special motion to dismiss in the Barnstable Superior Court. On a novel theory that had yet to be resolved by the appellate courts of the Commonwealth, BMK argued that text messages from the real estate broker indicating seller’s acceptance of the client’s offer were sufficient to satisfy the statute of frauds and thus constituted a valid and binding agreement to sell. By obtaining the memorandum of lis pendens, BMK was able to negotiate a prompt settlement that ended with the seller of the residential real estate selling to BMK’s client, rather than a third party.