Tag: Litigation Law in Boston

October 16, 2014   Posted by: Margarita Smirnova

Firearm Laws and Complications From Possessing Firearms!

In October, 2013, when Shaneen Allen was charged for possessing a firearm in her car in New Jersey the arrest came as a surprising shock.  According to the Philly.com report, a single mom of two, who resides in Philadelphia, obtained a license-to-carry permit and lawfully purchased .380 Bersa Thunder handgun for self defense purposes.   The last thing she expected was that during a routine traffic stop in New Jersey she would get arrested and was charged with unlawful possession of a weapon and possession of hollow-point bullets.  For many who were unaware of how firearm laws work it was mind boggling.   Ms. Allen had all the documentation and proper preparation to be able to carry her Bersa.  So, what went wrong? The answer is different states have different rules and reciprocity is far from automatic.

The Second Amendment to the U.S. Constitution guarantees to each citizen the right to bear arms.  Yet, many state legislations across the country enacted many controversial restrictions and limitations no other amendment could ever endure.  Each state requires its own license; whether it is to collect fees or to control the amount of firearms.

For better or worse, the firearm law is constantly changing.   It is important to know your rights because the punishment for these offenses is quite severe, and traditionally, the prosecution addresses the violators who possess firearms with vigor.

In 2013, New York enacted a Safe Act that claims to “keep communities safe while respecting hunters and sportsmen.” Governor Guomo, if reelected, plans to sign a Safe Act 2 which makes one wonder whether the first act didn’t keep the public safe.   Under the New York law, criminal possession of a weapon is fourth degree and is a strict liability and per se crime in the New York Penal Law pursuant to NY PL 265.01.  The implication of strict liability for simply possessing a firearm or even a knife is automatic prison time.

Recently, Massachusetts reinstated itself as one of the leaders in tough gun control in the nation.  On August 13, 2014, the Massachusetts legislation signed into law an Act Relative to the Reduction of Gun Violence.  The Act allows police chiefs to ask courts to deny firearms identification cards to individuals if they feel are unfit to obtain them.  The Act made gun-based crimes tougher and created an online portal for background checks in private gun sales, making Massachusetts join the National Instant Background Check System.

An improperly possessed or used firearm is dangerous not only for possessing the firearm which is regulated by the Mass. Gen. Laws Ch. 269 Sec. 10 (h) and having to surrender it under the Mass Gen. Laws Ch. 140 Sec. 129D but also risky to your freedom.  The Mass Gen Laws 140 Sec. 128B states that for the first offense the violator will be punished by a fine of up to $1,000 and for any subsequent offense by imprisonment in the state prison for up to ten years.

Different towns and cities require different policies and procedures to obtain License to Carry of Firearm Identification.  Possession, storage and transportation of firearms are heavily regulated.  It’s important to obtain a proper license prior to purchasing any firearms.  No doubt, the Act Relative to the Reduction of Gun Violence makes owning firearms more complicated and since certain regulations will become active in January 2015, applicants will be prone to make mistakes in filing or renewing their licenses to carry or firearm identifications cards applications, or worse, due to new regulations, losing their rights altogether.

It is important to note that under the Massachusetts law a possession of a firearm while committing a felony will will result in a mandatory minimum sentence of 5 years.  Failing to proper obtain a license to posses a firearm can automatically render a perfectly law abiding citizen a felon.

By Margarita Smirnova
Call: (617)398-7482
E-mail: margarita.smirnova@gmail.com
This post is for informational and educational use only and does not create attorney-client relationship.
October 25, 2013   Posted by: Margarita Smirnova



The U.S. businesses consist of sole proprietorships or various forms of partnerships and corporations.  It’s not unheard of that solo businesses enter business ventures with other businesses.  Due to the tough economy, more and more business partners join business partnerships with each other than before to survive.  A business partnership union can be compared to a marriage.  Like in a marriage, a business partnership has a honeymoon period filled with well-meant, and perhaps, not-so-well-meant promises.  Then, there is a drudgery of ins and outs of a daily and weekly workload and activity with potential lack of communication may lead to contempt and breach of respect and/or trust.  Does it sound too familiar?  Yes.  That’s because it happens all the time.  Luckily, there are ways to prevent a fall out, and in case if it’s too late, peacefully depart.  Similarly to a good marriage, a personal responsibility and entering the business partnership with the idea that nothing in this world is permanent is the key to success.

There are many issues that can arise among partners and wreck a business partnership.  For example, a closed company shareholder dispute over under performance, a lack of sufficient capital and an increase in business expenses, a breach of fiduciary duty, among other things such as including but not limited to business debt collection and/or personal disputes.

A scenario where business partners are partnering with each other instead of hiring happens all the time.  Sharing household tasks is not an unfamiliar approach.  In short, two or more partners with different set of skills agree to make an input and be responsible for separate aspect(s) of the business.  Sometimes one partner’s particular or unique skill or service in the beginning is what brings the company to its success.  Later, someone could be hired instead of him.  At one point, one of the partners may think that hiring someone else with the same set of skills would be a cheaper alternative than to retain the original business partner leading to a rift in the relationship affecting the daily business flow.  Perhaps, communicating would have helped.

There are many issues that can arise among partners and financial outcome be at stake.  For example, a conflict may arise in a closed company shareholder dispute may arise over an under performance, a lack of sufficient capital and an increase in expenses.  That can lead to a breach of fiduciary duty, and unfulfilled promises and wreck a business flow.  In addition, a simple business debt collection suit by a creditor or personal disputes can lead to a prolonged grudge.  This is exactly what happened in one of the cases in Massachusetts.  See, Weiler v. PortfolioScope, Inc., 83 Mass. App. Ct. 216 (2013).

In Weiler, the business structure involved a complex array of partnerships among companies and individuals making separate contractual agreements and obligations.  The outcome resulted in securities regulations preempting over contractual agreements between the parties because there was a properly secured and timely perfected creditor.

Milton Weiler (Weiler), the plaintiff in this case, was a President and CEO of the PorfolioScope, the defendant.  Weiler developed a certain portfolio that became a part of PortfolioScope, Inc. (PortfolioScope).  PortfolioScope is an entity formed when formerly named Spencer Trask acquired Computer Aided Decisions (CAD) and CAD Research along with Plaintiff’s, among with Weiler’s, software.  In 2008, PortfolioScope sued iFlex Solutions, Ltd for the theft of trade PortfoliosScope’s secrets software.  The case with iFlex Solutions Ltd. settled and PortfolioScope was to receive a lump-sum payment in the amount of $10 million.  However, in 2002, Weiler resigned leading to replacing of the CEO within the company.  Through a stock option purchase and the sale agreement with PortfolioScope, Weiler, in exchange for the sale of his portion of ProtfolioScope, retained the right to five percent (5%) of its net proceeds received in connection with the iFlex Solutions, Ltd.

Plaintiff argued that PortfolioScope breached the agreement with the plaintiff to pay (5%) of the proceeds from a settlement related to a pending lawsuit between PortfolioScope and iFlex Solutions.  See, Weiler, at 218.

The main issue was whether an agreement between the plaintiff and the defendant stating that the plaintiff was entitled to 5% of defendant’s net proceeds in connection with the third party litigation gave the plaintiff a priority over a secured creditor who had a preferred his claim.  The Trial court held that the agreement gave Weiler the priority of payment and said that the defendant “was required to pay because the agreement did not mention any creditor, secured or unsecured.” See Weiler 218-223.

The Appeals Court of Massachusetts, however, disagreed with the trial court and interpreted the effect of the contract between the parties differently.  The Court said that the payment was simply one of several parts of the consideration for the sale of his stock options back to the company…  The court held that “PortfolioScope lacked authority to encumber collateral preciously securitized in favor of the creditor…”  “The resolution of priority conflicts is governed by the general rule “first in time, first in right” See Weiler 225-226.  Because the creditor did not subordinate his interest to Weiler, “Weiler was an unsecured creditor, whatever the nature of his interest in the settlement proceeds, was not superior to other creditor who had their interest secured.

Communication is crucial.  Comparisons with marriage aside, writing is a great communication tool.  While its not always perfect it can show the meaning among the parties.  A well drafted agreement between partners could divert a disaster by laying out possible creditors.  It can also minimize the possibility of misinterpretation and help to avoid losses and costly litigation.


Written by Margarita Smirnova, Esq.

If you have a specific question relating to your business, please contact Margarita

Call: (617)398-7482

E-mail: margarita.smirnova@gmail.com

no comments posted in: Business Law   |   Commercial Law   |   Litigation
July 15, 2013   Posted by: Margarita Smirnova


Dancing is beautiful.  Dancing takes us in a different world full of glamor, feelings, fashion, and a holiday.  People go to learn dancing for various reasons and take different dance classes.  While there are different types of dances, it is important to keep in mind that running a dance studio business is providing service where dance instructors give dance instruction to their students.

From legal point of view, similar to many businesses, a dance studio owner should think of protecting studio’s assets.  Some of the most important assets are music and video equipment, a music collection, instruction materials, teachers and studio’s name.   From my personal experience as a professional Ballroom and Latin dancer, the name and its reputation are probably one the most valuable assets.  Generally, the name is earned through dancing community by competing, teaching, and judging and is very respected for years to come.  If done right, they can be protected.

Some of the things to keep in mind when running a dance studio.  First, to run a successful dance studio, the owner has to consider incorporating the studio as business to limit liability and bring structure for the business to run smoothly.

Each state has different rules and regulations governing incorporation process.  For example, to form a Corporation, New York, under the Section 301 of the Business Corporation Law,  requires a special taxation for shares that the corporation is authorized to issue which must be paid at the time of formation of the corporation.  To form LLP, New York, under Section 121-201 of the New York State Revised Limited Partnership Act, requires the filing of the certificate of limited partnership, a limited partnership (LP) plus publication within 120 days.  While Massachusetts doesn’t require the above requirements, the M.G.L. Chapter 156D controls all corporations in Massachusetts, which means that a corporation in Massachusetts is still required to submit its annual report with the appropriate fee.  There are cheaper ways to incorporate in other states.  Dance studio owner should consider the location prior incorporation where s/he wants to conduct the business prior incorporating.

Second, the provisions of the lease and its renewal are important to protect the studio from losing its location.  From my personal experience, many real estate developers/landlords do not think of dancers as business savvy people.  Dancers are considered to be artsy.  Often, verbal promises are not included in integrated written agreements.  This can make it difficult to run a profitable studio smoothly.  Also, moving studio’s location a lot may not be beneficial and should be kept to the minimum.

Third, is insurance.  Insurance is here to protect our property from many types of damage; environmental and/or human made.  Also, insurance should cover clients’ possible injuries to minimize costly litigation.  There are waivers available but they may not protect your studio 100%.  In some places, waivers are not valid or partially valid.  In New York, the waivers are valid for instructional purposes only and if drafted properly.  That means that your studio may still be liable for injuries that occur on the premises.  In Massachusetts, “the issue of waiver is for the fact finder.  When the facts are undisputed, the waiver is a question of law.”  See, Linda Coal & Supply Co. v. Tasa Coal Co., 416 Pa. 97, 101 (1964).  Also, it is an affirmative defense.  See, Sharon v. City of Newton, 437 Mass. 99 (2002).  Under Mass. Gen. Laws, Ch. 93A protects from unfair and deceptive business practices.  “A statutory right or remedy may be waived when the waiver would not frustrate the public policies of the statute and the court “ordinarily would not effectuate a consumer’s waiver of rights under c. 93A”.  See, Canal Electric Co. v. Westinghouse Electric Corp. 406 Mass. 369 (1990).

Fourth, handling employees is just as crucial.  There is an employee’s contract, immigration that may require sponsorship, human conflict, termination, and a non-compete agreement issues.

Fifth, sometimes there is an occasional encroaching on dance business by other dance studios that can bring a lot of frustration and litigation.  A dance studio owner, can address these issues timely and avoid further losses down the road.

Sixth, as of late, Internet and media took a whole different spin on how the studio appears on-line.  Domain name, hosting, visibility/ranking and copyright of videos along with music and its combination came to play an important role in dance business industry.


Written by Margarita Smirnova, Esq.

If you have a specific question relating to your business, please contact Margarita

Call: (617)875-8663

E-mail: margarita.smirnova@gmail.com


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