The Unregulated World of Fantasy Sports

Online fantasy sports is a multibillion dollar industry, but it is unregulated.  This week a major scandal erupted when DraftKings admitted that an employee inadvertently released data before the start of the third week of N.F.L. games, and then subsequently that same employee won $350,000 at a rival site, FanDuel.  Although both companies claim to have strong policies in place to ensure that employees do not misuse any information, state and federal authorities are now looking into regulating the industry.

The Unlawful Internet Gambling Enforcement Act of 2006 prohibits online gambling, but makes an exception for online fantasy sports.  Among the criteria to qualify for the exception, the fantasy sport must have “[a]ll winning outcomes reflect the relative knowledge and skill of the participants and are determined predominantly by accumulated statistical results of performance of individuals (athletes in the case of sports events) in multiple real world sporting or other events.”  31 U.S.C. § 5362 (1)(E)(ix)(II).  The federal law sees fantasy sports as a game of skill and not a game of chance.  However, the federal law did not foresee the daily fantasy sports that we have today.  Now elected officials are discussing regulating the industry at the federal and state level.

Follow the link below to hear my discussion about this topic on Boston Herald Radio on 10/6/2015:

https://soundcloud.com/bostonherald/lawyer-mark-donovan-draft-kingsfan-duel

 

Follow the link below to read the related article published in the Boston Herald on 10/7/2015:

http://www.bostonherald.com/news_opinion/local_coverage/2015/10/whos_behind_draftkings_upstart_co_has_some_big_time_backers

 

Considine & Furey, LLP specializes in gaming law in Massachusetts.  Please let us know your thoughts and comments.

Posted by Mark D. Donovan, Esq.

 

Volkswagen Class Action Lawsuit

Considine & Furey, LLP is pleased to announce that it is currently exploring a class action lawsuit against Volkswagen.

Reports indicate that Volkswagen engineers intentionally designed cars to circumvent emissions test regulators.

Volkswagen’s emissions scandal ballooned this week as the company admitted that software designed to fool regulators affects 11 million vehicles worldwide and could cost more than $7 billion to address.

The automaker’s deception immediately qualifies as one of the most expensive automotive scandals in recent memory and CEO Martin Winterkorn has resigned.

Volkswagen has set aside $7.3 billion to address the software that manipulates emissions tests.

If you have one of the following vehicles, you could have a claim against Volkswagen:

  • Jetta (MY 2009-2015)
  • Jetta Sportwagen (MY 2009-2014)
  • Beetle (MY 2012-2015)
  • Beetle Convertible (MY 2012-2015)
  • Audi A3 (MY 2010-2015)
  • Golf (MY 2010-2015)
  • Golf Sportwagen (MY 2015)
  • Passat (MY 2012-2015)

If you own one of these vehicles, please contact Considine & Furey, LLP at 617-723-7200 for more information regarding a civil class action suit against Volkswagen.

Submitted by: Mark D. Donovan, Esq.

Date: 9/24/15

 

Hostile Work Environment

Massachusetts General Laws chapter 151B defines “hostile work environment” harassment as:

sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.

In a hostile work environment case, the complainant must prove:

  • she was subjected to conduct of a sexual nature;
  • the conduct of a sexual nature was unwelcome;
  • the conduct of a sexual nature had the purpose or effect of creating
  • an intimidating, hostile, humiliating or sexually offensive work environment; and
  • the conduct unreasonably interfered with complainant’s work performance or altered the terms and conditions of the complainant’s employment.

For a free consultation regarding discrimination in the workplace, please call Considine & Furey, LLP at 617-723-7200.

Posted by Mark D. Donovan, Esq.

 

Legal Disclaimer: This website contains general information about the law and legal topics. The information is not advice and should not be treated as such. No attorney-client relationship shall be created through the use of this website. The legal information on this website is provided without any representations or warranties, express or implied.

Sexual Harassment: Quid Pro Quo

Massachusetts Law prohibits sex discrimination in the workplace. Sexual harassment is a form of sex discrimination.

The standards governing the prohibition of sex discrimination and sexual harassment in the workplace are set forth in Massachusetts General Laws chapter 151B.

There are two types of sexual harassment: “quid pro quo” harassment and “hostile work environment” harassment. They may occur independently or concurrently.

Quid Pro Quo Harassment

Chapter 151B defines “quid pro quo” sexual harassment as: sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions.

To prove a claim for quid pro quo harassment, the employee must establish the following elements:

  • That the alleged harasser made sexual advances or sexual requests, or otherwise engaged in conduct of a sexual nature;
  • the sexual conduct was unwelcome;
  • he or she rejected such advances, requests or conduct; and
  • the terms or conditions of his or her employment were then adversely affected.

or

  • That the alleged harasser made sexual advances or sexual requests, or otherwise engaged in conduct of a sexual nature;
  • the sexual conduct was unwelcome;
  • he or she submitted to such advances, requests or conduct; and
  • when he or she submitted to the unwelcome sexual conduct, he or she did so in reasonable fear of adverse employment action.

Quid pro quo harassment occurs when an employee with authority or control over the terms and conditions of another employee’s work offers her a work benefit or advantage in exchange for sexual favors or gratification.  Conversely, if an employee is denied a work benefit or advantage due to her refusal to respond to, or rejection of, requests for sexual favors or gratification, she is subjected to quid pro quo harassment.  Thus, either submission to, or rejection of, unwelcome sexual advances may result in quid pro quo harassment if the terms or conditions of one’s employment are impacted.  Examples of such impact may include but are not limited to: termination; demotion; denial of promotion; transfer; alteration of duties, hours or compensation; or unjustified performance reviews.

For a free consultation regarding discrimination in the workplace, please call Considine & Furey, LLP at 617-723-7200.

Posted by Mark D. Donovan, Esq.

Legal Disclaimer: This website contains general information about the law and legal topics. The information is not advice and should not be treated as such. No attorney-client relationship shall be created through the use of this website. The legal information on this website is provided without any representations or warranties, express or implied.

Filing a Complaint with MCAD

Massachusetts Law prohibits discrimination in the workplace.  Sexual harassment is one form of discrimination that is prohibited by law.  The standards governing the prohibition of sex discrimination and sexual harassment in the workplace are set forth in Massachusetts General Laws chapter 151B (“chapter 151B”).

If you have experienced discrimination or sexual harassment in the workplace, you may be able to file a complaint with the Massachusetts Commission Against Discrimination (“MCAD”).  The MCAD is the Commonwealth’s chief civil rights agency. The MCAD works to eliminate discrimination on a variety of bases and areas, and strives to advance the civil rights of the people of the Commonwealth through law enforcement, outreach and training.

The MCAD has a 300-day statute of limitations. This means that you only have 300 days, from what you believe is the last discriminatory act, to file a claim with the MCAD.

A charge of discrimination must be filed in person.  Although you do not need a lawyer to file a complaint, you may want to hire a lawyer to assist you in the process.  The MCAD conducts investigations of the claims and may conduct a public hearing to determine liability. 

For a free consultation regarding discrimination in the workplace, please call Considine & Furey, LLP at 617-723-7200.

Posted by Mark D. Donovan

 

Legal Disclaimer:  This website contains general information about the law and legal topics.  The information is not advice and should not be treated as such.  No attorney-client relationship shall be created through the use of this website.  The legal information on this website is provided without any representations or warranties, express or implied.  

 

 

Medical Malpractice in Massachusetts

Medical malpractice cases include (among others):

  • Failure to diagnose or delay in diagnosis of cancer, heart disease, or other progressive and otherwise treatable diseases;
  • Surgical errors, such as performing wrong-sided surgery, unnecessary surgery, contraindicated surgery, or negligently injuring a person during surgery;
  • Errors during childbirth leading to birth trauma, maternal injuries, or other birth-related injuries;
  • Errors in causing and/or failing to diagnose or treat injuries during routine procedures.

Central Questions in these cases are:

      a. whether there was departure from the standard of care; and
      b. was that departure directly and causally related to the injury(ies).

The law defines standard of care as that which is expected of the average practitioner in a particular specialty under similar circumstances given the advances of the profession and the resources available to the physician at the time.  The only way to prove a breach of the standard of care is by having a physician render an expert opinion that it was breached and the cause of injury.  The law requires expert opinions on the issues of standard of care and causation. 

For a free consultation on a medical malpractice case, please feel free to contact Considine & Furey, LLP at 617-723-7200. 

Posted by Mark D. Donovan, Esq.

 

Legal Disclaimer:  This website contains general information about the law and legal topics.  The information is not advice and should not be treated as such.  No attorney-client relationship shall be created through the use of this website.  The legal information on this website is provided without any representations or warranties, express or implied.

 

Caesars Sues Chairman of Mass Gaming Commission

On December 11, 2013, Caesars Entertainment filed a lawsuit against Stephen Crosby, the Chairman of the Massachusetts Gaming Commission claiming that the state’s top gambling regulator failed to disclose a potential conflict of interest in a timely manner and treated Caesars Entertainment unfairly during a background check.

Las Vegas-based Caesars had been a partner of the Suffolk Downs horse track in a resort casino bid, but it withdrew in October after concerns were raised during a background check by Massachusetts Gaming Commission staff.

The lawsuit, filed Wednesday by Caesars’ Massachusetts affiliate in U.S. District Court in Boston, challenges the “constitutionality, objectivity and fairness” of Caesars’ treatment by the commission’s chair, Stephen Crosby.  It alleges that Crosby’s intent was to block the impartial consideration of Suffolk Downs’ casino application.

The complaint seeks unspecified damages and was filed against Crosby both in his official capacity as chairman of the five-member panel and as an individual.  The company also asked the court to permanently block release of the full background investigation.

Caesars alleges that Crosby failed to disclose publicly, in a timely manner, his friendship and past business relationship with Paul Lohnes, a part owner of land in Everett on which Wynn Resorts hopes to develop a casino.  The Wynn proposal could have competed directly with Suffolk Downs for the sole eastern Massachusetts resort casino license available under the state’s 2011 gambling law.

Crosby, who served in the National Guard with Lohnes and had a business venture with him from 1983 to 1990, has said he disclosed the relationship to Gov. Deval Patrick and in two filings with the state Ethics Commission.  However, he did not publicly disclose the relationship until last week.

The lawsuit claims the commission was prepared to issue an “incorrect and unprecedented recommendation” that Caesars was not suitable to participate in gambling in Massachusetts.

A commission report, among other things, said it was concerned about Caesars’ now-ended licensing agreement for a Las Vegas hotel with a subsidiary of New York-based Gansevoort Hotel Group.  The report said a Gansevoort investor has been under scrutiny, though not charged, over alleged ties to Russian organized crime.

Caesars, according to the lawsuit, rebutted the findings but informed commission investigators it would be willing to restructure or even terminate its licensing deal with Gansevoort. Caesars, which claims to have invested $100 million into the casino proposal, later agreed to a request from Suffolk Downs to withdraw from the project.

Voters in East Boston recently rejected the proposed casino on November 5.  Suffolk Downs subsequently reached a partnership agreement with Mohegan Sun, which is pursuing a revised casino proposal that would be entirely in Revere, where voters had approved a casino.

The lawsuit could have an impact on the casino process in Massachusetts, especially for the award of a casino license for the eastern region, known as Region A.

The complaint, Caesars Massachusetts Management Company, LLC, et al v. Stephen P. Crosby, was filed in United States District Court, District of Massachusetts, Docket Number 1:13-cv-13144-NMG.

Click the following link to download copy of complaint: http://media.wbur.org/wordpress/1/files/2013/12/CAESARS-1212.pdf

For information on gaming law and casinos in Massachusetts, please feel free to contact Considine & Furey, LLP at 617-723-7200; and find us online at www.considinefurey.com

 Posted by Mark D. Donovan, Esq.

Mass Gaming Commission Opens Region C to Commercial Casino Developers

After much discussion on April 18, 2013, the Massachusetts Gaming Commission voted unanimously to open Region C (Southeastern, Massachusetts) to commercial casino developers.  Previously, the Commission had delayed the application process for Region C pending the approval of a new compact with the Mashpee Wampanoag tribe.  However, the tribe’s ability to obtain land in trust has been uncertain.  The Commission discussed at length their attempt to balance the preferences given to the tribe by the gaming legislation and their obligation to ensure that Southeastern Massachusetts did not fall behind economically by a delay in the process.

The Mashpee tribe is planning to build a casino resort in an industrial park in Taunton, but faces some legal obstacles.  The Supreme Court’s decision in Carcieri v. Salazar precludes the Secretary of the Interior from taking land into trust for tribes recognized after 1934.  The Mashpee tribe received federal recognition in 2007.

The commission vote does not guarantee the panel will award a commercial license in the region. After the application period, sometime in late 2014, the commission will “make a determination on the applications taking into consideration everything going on in the region, including the status of the tribe,” said Stephen Crosby, chairman of the commission.

For information on gaming law and casinos in Massachusetts, please contact Considine & Furey, LLP at 617-723-7200.

Posted by Mark D. Donovan, Esq.

 

MBTA Crash Sends 37 To Hospital

The MBTA has fired the operator of the Green Line trolley that crashed into another at Boylston Station on November 29, 2012.  This past Wednesday, the T said the driver may have fallen asleep before the accident that sent 37 to the hospital and caused $500,000 in damages, according to WBUR and local news sources

The operator had apparently been moonlighting, something about which the MBTA does not ask its employees.

Nevertheless, the MBTA can be held liable for the personal injuries of all those passengers.

The familiar doctrine of respondeat superior, over 300 years old, holds that a master is vicariously liable for injury or harm to third persons caused by his servant’s negligent physical acts and other tortious conduct committed within the scope of his employment.

The relation of master and servant must exist at the time the third party is injured in order for the doctrine of respondeat superior to be applicable.  This means that at the time in question, the servant’s act was performed in the course of doing his master’s work, in carrying out his master’s directions, or in accomplishing his master’s business, and that the master had the right to control the servant’s physical activities.

Thus, the master is liable if the act of the servant is done in the course of doing the master’s work and for the purpose of accomplishing it, whether the wrong done be occasioned by negligence, or by a wanton and reckless purpose to accomplish the master’s business in an unlawful manner.

Conduct of an employee is within the scope of his employment if (1) it is of the kind he is employed to perform; (2) it occurs substantially within the authorized time and space limits; and (3) it is motivated, at least in part, by a purpose to serve the employer.

In this situation, the employee was clearly acting within his scope of employment with the MBTA when he was driving the trolley.

To see a video of the MBTA accident click on the following links:

http://www.wbur.org/2012/12/05/mbta-boylston-crash-fire-driver

http://www.youtube.com/watch?v=Hnv2b6X6E_4&feature=plcp

For a free consultation on a personal injury case, please feel free to contact Considine & Furey, LLP at 617-723-7200.

Posted by Mark D. Donovan, Esq.

 

State Drug Lab Scandal

Special court sessions are being set up around Massachusetts to handle a flood of legal challenges expected by drug defendants in the wake of a scandal at a state drug testing lab.  Chemist Annie Dookhan was charged with obstruction of justice last week after allegedly acknowledging to state police that she failed to follow testing protocols and altered results at the now-closed lab.

According to the Boston Globe and Associated Press, Dookhan tested more than 60,000 drug samples involving 34,000 defendants during her nine years at the lab.  Authorities say more than 1,100 inmates are currently serving time in cases in which Dookhan was the primary or secondary chemist.

As an Assistant District Attorney in Bristol County, I saw several drug tests return from the lab with Annie Dookhan’s name certifying the results.  Now, thousands of drug cases and the rights of thousands of defendants are cast in doubt.

Prior to 2009, the chemist was not required to testify to submit the drug test results at trial.  The drug certification was admitted into evidence with the drugs at trial by a police officer who could testify to the authenticity and the chain of custody.  However, in 2009 the U.S. Supreme Court found this violated the defendant’s right to confrontation.  In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the United States Supreme Court held that it was a violation of the Sixth Amendment right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of the person who performed the test.  While the court ruled that the then-common practice of submitting these reports without testimony was unconstitutional, it also held that so called “notice-and-demand” statutes are constitutional.  A state would not violate the Constitution through a “notice-and-demand” statute by both putting the defendant on notice that the prosecution would submit a chemical drug test report without the testimony of the scientist and also giving the defendant sufficient time to raise an objection.

Going forward, the special court sessions are being set up for the purpose of assigning lawyers and ‘‘addressing the immediate liberty interests of the incarcerated defendants serving time in connection with a drug conviction stemming from a questionable drug analysis,’’ according to the public information office of the Supreme Judicial Court.

Posted by Mark D. Donovan, Esq.

www.considinefurey.com