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The research about the search for opportunities through open cooperation strategies points to an exchange of knowledge among a certain number of sources, aimed at sustaining competitive advantage. From this new vision emerges the paradigm of open innovation, which has prompted a change in the organization of resources, information filtering, and rapid absorptive capacity. Awareness of climate problems and external societal pressures can motivate companies to create new technologies and new forms of cooperation to avoid environmental problems. Based on a survey of Spanish agri-food firms, we find that the depth of external sources of innovation increases environmental improvement in a U-shaped relationship.
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The Fourth Amendment prohibits “unreasonable searches and seizures.” Because the use of force to make an arrest is a seizure under the Fourth Amendment, the use of such force cannot be unreasonable. The Supreme Court’s precedential rulings on reasonableness can be found in three key cases: Graham v. Conner,Tennessee v. Garner, and Scott v. Harris.  At the heart of each of these cases are the analysis and factors set forth in Graham.
To determine whether the forced used was reasonable, judges, juries, and prosecutors use the test laid out in Graham v. Conner. In Graham, the eponymous victim was suffering the onset of insulin shock.  He asked a friend to drive him to a convenience store to get some orange juice to counteract the shock, but upon finding a long line at the checkout counter, he asked to instead be driven to another friend’s house.  Officer Conner suspected something was amiss after seeing Graham quickly enter and leave the store and pulled the car over, initiating an investigatory stop. Not believing that Graham was suffering from insulin shock, Conner told Graham and the driver to wait while he found out what happened at the convenience store. Graham eventually exited the car and passed out on the curb.  By this time, backup officers had arrived. They handcuffed Graham, threw him against the hood of a patrol car, and then tossed him headfirst into the back of the car. Upon finding out that nothing happened at the convenience store, the officers released Graham.  However, their treatment of him during the arrest resulted in: “a broken foot, cuts on his wrists, a bruised forehead, . . . an injured shoulder[,]” and a persistent ringing in his right ear.
The Graham test thus removes the subjective inquiry into why the particular officer inflicted the force. Instead, the reasonableness of the force is determined from the “perspective of a reasonable officer on the scene,” an objective analysis . Therefore, an officer’s good intentions will not sway the analysis in favor of reasonableness, nor will their bad intentions make the use of force more unreasonable.
C. Scott addresses the distinction (or lack thereof) between Garner and Graham.
In Scott, deputies initiated a high speed chase after Harris failed to pull over for speeding. After evading officers’ attempt to box him in at a shopping center parking lot, the high speed chase resumed with Officer Scott as the lead car. Scott applied his bumper to Harris’ vehicle in an attempt to stop his car and end the chase. The maneuver caused Harris to lose control of his vehicle and crash into an embankment. Scott was seriously injured and rendered paraplegic.  The chase lasted approximately six minutes and ran for nearly ten miles, down what was mostly a two lane road, at speeds exceeding eighty-five miles per hour.
In applying the Graham analysis to Harris’ case, the Court, interestingly, did not explicitly use all three factors expressed in Graham. Rather, the Court restated the general Fourth Amendment balancing rule  and then considered the second factor: the immediacy of the threat Harris posed to the safety of the officers or others. Relying on the police video of the chase, the Court immediately found Harris posed an “actual and imminent threat” to officers, pedestrians, and other motorists. Addressing the overall balancing inquiry, the Court weighed the threat to Harris that Scott’s use of force posed, against the imminent threat Harris’ continued reckless driving posed to the officers and public. The Court speculated that the risk of harm to both sides was high, but that the risk to Harris may have been higher. To resolve the issue, the Court looked at the culpability of both sides. Upon finding the officers and bystanders quite innocent, and Harris quite culpable, since he “intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight,” the Court had “little difficulty” in finding Scott’s use of force reasonable.
Some of the more controversial alleged facts of the case, such as that Brown never turned and moved back toward Wilson and that Wilson shot Brown as he was running away or had his hands up in surrender, were not relied on by the DOJ because witness accounts stating as much were inconsistent with the physical evidence and credible witness accounts.
Turning to the shots fired when Wilson and Brown were both on the street, the DOJ first reiterated that all the physical evidence and credible witness reports indicated that Wilson shot Brown as he was moving, running, or charging toward Wilson. The DOJ then returned to the “key” question of “whether Brown could reasonably have been perceived to pose a deadly threat to Wilson.”  In finding Wilson could reasonably have perceived Brown as a threat, the DOJ made the following conclusions. First, Wilson had reason to believe Brown may have been armed when Brown reached into his waistband as he was moving toward Wilson.  Given Brown’s aggressive action at Wilson’s vehicle, and “in light of the rapidly-evolving nature of the incident,” “Wilson did not have time to determine whether Brown had a gun and was not required to risk being shot himself in order to make a more definitive assessment.” Second, even if Brown never reached into his waistband, the DOJ determined that Wilson still could have reasonably perceived a deadly threat, given Brown’s advancement toward him and refusal to yield to Wilson’s commands to stop. In reaching this second conclusion, the DOJ relied on the holding of Loch v. City of Litchfield, where “[a]lthough the suspect’s ‘arms were raised above his head or extended at his sides,’ the Court of Appeals held that a reasonable officer could have perceived the suspect’s forward advance in the face of the officer’s commands to stop as resistance and a threat.” For these reasons the DOJ decided that it was not objectively unreasonable for Wilson to have used deadly force.
While the use of force by police officers continues to be a topic of fervent public debate, because of the nature of the law, the rules broadly described above will be in force for some time. Thus, judges, juries, and prosecutors will continue to rely on them to determine whether the force used was constitutional. Citizens who believe they have been subjected to unreasonable force should not be discouraged, however, from asserting their rights in light of the recent high profile cases that did not result in an indictment or conviction. The Fourth Amendment clearly protects a citizen’s right to be free from unreasonable seizures, and those who believe their rights have been violated should consult with an experienced civil rights attorney to discuss their options.
 E.g. , Christy J. Millweard & KVUE Staff, Bystanders Accuse Austin Police of Excessive Force, KVUE (June 8, 2015), http://www.kvue.com/story/news/local/2015/06/07/bystanders-accuse-austin-police-of-excessive-force/28642919/ (describing officer’s use of mace); Jacquellena Aarrero & M. Alex Johnson, McKinney, Texas, Cop Placed on Leave After Pulling Gun on Teens at Pool Party, NBC News (June 8, 2015), http://www.nbcnews.com/news/us-news/mckinney-texas-officer-leave-after-wild-pool-party-video-surfaces-n371281 (describing officer’s use of physical force and brandishing of weapon); Bob Kealing, Did Orlando Police Officer Use Excessive Force When Kicking Suspect?, WPTV (June 9, 2015), http://www.wptv.com/news/state/noel-carter-did-orlando-police-officer-use-excessive-force-when-kicking-suspect (describing officer’s use of physical force and taser).
 Ferguson Unrest: From Shooting to Nationwide Protests , BBC News (Mar. 12, 2015), http://www.bbc.com/news/world-us-canada-30193354 (describing the circumstances and aftermath of the death of Michael Brown).
 Monica Davey & Julie Bosman, Protests Flare after Ferguson Police Officer Is Not Indicted, NY Times (Nov. 24, 2014), http://www.nytimes.com/2014/11/25/us/ferguson-darren-wilson-shooting-michael-brown-grand-jury.html?_r=0 .
 The purpose of this article is not to question whether the legal rules governing the use of force were properly applied in the examples given, or even whether the rules themselves are just or unjust.
 U.S. Const. amend. IV., available at https://www.law.cornell.edu/constitution/fourth_amendment.
 Graham v. Conner, 490 U.S. 386, 395 (1989) (holding “that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard).
 Graham v. Conner, 490 U.S. 386 (1989).
 Scott v. Harris, 550 U.S. 372 (2007).
 Cal. Penal Code § 835a (West 2015), available at http://www.leginfo.ca.gov/cgi-bin/displaycode?file=833-851.90&group=00001-01000&section=pen .
 Cal. Penal Code § 843 (West 2015), available at http://www.leginfo.ca.gov/cgi-bin/displaycode?file=833-851.90&group=00001-01000&section=pen .
 Cal. Penal Code § 834a (West 2015), available at http://www.leginfo.ca.gov/cgi-bin/displaycode?file=833-851.90&group=00001-01000&section=pen .
 Id. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)).
 Id. at 396 (“[P]roper application [of the test] requires careful attention to the facts and circumstances of each particular case[.]”) (citing Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)).
 Id. at 397 (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968)).
 Id. (citing Scott v. United States, 436 U.S. 128, 137–139 (1978)).
 Rachel A. Harmon, When is Police Violence Justified?, 102 Nw. U. L. Rev. 1119, 1128–29 (2008), available at http://poseidon01.ssrn.com/delivery.php?ID=318115065115119121006079071003020087017069064045069066075088121069073002022121127018022103030104056120001030119086086002112080117022094008013004029017097125114005112065073085001068009031002119011095084085107070098090015110119107122030019104027095066&EXT=pdf&TYPE=2 .
 See Harmon, supra note 37, at 1134–35.
 Id. at 382 (2007) (internal citations omitted); Harmon, supra note 37, at 1137.
 Id. at 383–86; Harmon, supra note 37, at 1135–37.
 Scott at 383; see supra note 30 and accompanying text.
 Plumhoff v. Rickard, 143 S. Ct. 2012, 2017 (2014).
 Dep’t of Justice, Department of Justice Report Regarding the Criminal Investigation into the Shooting Death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson at 4 (2015), available at http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/doj_report_on_shooting_of_michael_brown_1.pdf [hereinafter Dep’t of Justice].
 E.g. , Ferguson Unrest: From Shooting to Nationwide Protests, supra note 2.
 Much of the evidence presented to the grand jury is easily accessible to the public. E.g., Documents Released in the Ferguson Case, NY Times (Dec. 15, 2014), http://www.nytimes.com/interactive/2014/11/25/us/evidence-released-in-michael-brown-case.html .
 E.g. , Moni Basu, Holly Yan & Dana Ford, Fires, Chaos Erupt in Ferguson After Grand Jury Doesn't Indict in Michael Brown Case, CNN (Nov. 25, 2014), http://www.cnn.com/2014/11/24/justice/ferguson-grand-jury/.
 Dep’t of Justice, supra note 71, at 5.
 Id. at 81 (citing Nelson v. County of Wright, 162 F.3d 986, 990–91 (8th Cir. 1998)).
 Nelson v. County of Wright , 162 F.3d 986 (8th Cir. 1998).
 Dep’t of Justice, supra note 71, at 81.
 Loch v. City of Litchfield, 689 F.3d 961 (8th Cir. 2012).
 Dep’t of Justice, supra note 71, at 84 (citing Loch v. City of Litchfield 689 F.3d 961, 966 (8th Cir. 2012)).


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(2) Assignments shall be executed in accordance with all applicable professional standards and practices.
(3) Consideration of the application of foreign law requires express agreement in writing.
(4) If there are material or legal changes after submission of the final professional statement, then MeyerPartner is not obliged to inform the client of any changes or consequences resulting thereof.
(5) MeyerPartner will use and regard all facts and, in particular, figures, as stated by the client, as correct. If inaccuracies are found, MeyerPartner will point them out. In addition, MeyerPartner is under no obligation to check the tax or legal relevance of facts that have become known to MeyerPartner or to advise the client without a specific order to do so.
(6) The examination for correctness, completeness, and regularity of provided documents and figures, in particular the bookkeeping and balance sheet, is only part of this order if agreed to in writing.
(7) This agreement does not constitute a power of attorney for representation before authorities, courts, and other bodies. This shall be issued separately. If, due to the unavailability of the client, it is not possible to coordinate with the client regarding the filing of legal remedies or appeals, MeyerPartner shall be entitled and obliged to act within the prescribed time limit.
(1) MeyerPartner is required by law to maintain confidentiality with regard to all facts and information obtained in connection with the execution of this order, unless the client agrees in writing to release MeyerPartner from this obligation. This duty of confidentiality continues to exist even after termination of the contractual relationship.
(2) The duty of confidentiality applies equally to vicarious agents of MeyerPartner.
(3) The duty of confidentiality does not exist if disclosure is necessary to safeguard legitimate interests of MeyerPartner. MeyerPartner is also exempt from the duty of confidentiality insofar as there exists an obligation to provide information in cooperation with their professional liability insurance companies.
(4) Statutory rights to information and refusals to give evidence pursuant to § 102 Taxation Regulation (AO), § 53 Criminal Procedure Code (StPO), and § 383 Criminal Procedure Code (ZPO) remain unaffected.
(5) MeyerPartner shall only supply reports, expert opinions, and other written statements on the results of its activities to third parties with the consent of the client.
(6) MeyerPartner shall be released form the duty of confidentiality when necessary for carrying out a certification audit and the persons involved have themselves been informed of their duty of confidentiality. The client agrees that the certifier/auditor may inspect their file created and maintained by MeyerPartner.
(1) MeyerPartner shall be entitled to use vicarious agents, expert third parties, and data processing companies to carry out this order.
(2) MeyerPartner shall ensure that all third parties and data processing companies are in compliance with Para. 3, Sent. 1.
(3) MeyerPartner shall not be, under any circumstances, liable for the services of third parties. Third parties are not vicarious agents for purposes of liability law.
(4) If MeyerPartner recommends a third party by name, MeyerPartner shall only be liable for the proper selection of a party.
(5) MeyerPartner shall be entitled to appoint general representatives (§ 69 Tax Consultant Law [StBerG]; § 53 Federal Lawyers Act [BRAO]) as well as experienced fiduciaries (§ 71 StBerG) to inspect reference files pursuant to § 66 Para. 2 StBerG / § 50 BRAO.
(1) MeyerPartner may automatically collect personal data of the client and its employees within the scope of the orders placed, and may process this data in an automated file or transfer them to a service computer center for further order data processing.
(2) MeyerPartner is entitled to appoint a data protection office in compliance with its obligations under the Federal Data Protection Act. If this data protection officer is not already subject the duty of confidentiality pursuant to Num. 3, Para. 1, Sent. 3, the tax consultant shall ensure that the data protection officer maintains data secrecy upon commencement of his work.
(3) Insofar as the client informs MeyerPartner of a fax number or email address, the client agrees to having MeyerPartner send them client related information without restriction regarding such contact information until revoked or expressly instructed otherwise. The client warrants that only they or persons appointed by them have access to receive/transmit via the email account and that they regularly check for incoming messages. The client shall inform MeyerPartner if there are restrictions, such as the receipt/transmission of the email account is checked irregularly for incoming messages, or if messages are to be sent after prior notification. MeyerPartner accepts no liability for the security of date and information transmitted via unencrypted emails and is not liable for any damages incurred by the client as a result. Insofar as the client possesses the technical prerequisites for the use of signature and encryption procedures and wishes to use them, they shall inform MeyerPartner within a reasonable time. The client shall bear any associated costs for MeyerPartner (e.g. for the acquisition and installation of necessary software and/or hardware).
(1) The client is entitled to have any defects remedied. MeyerPartner has the opportunity to remedy the defect. The client has the right – if and to the extent that the mandate is a service contract pursuant to §§ 611, 675 BGB (German Civil Code) to refuse the remedy made by MeyerPartner if the mandate is terminated by the client and the defect is discovered only after effective termination of the mandate.
(2) If MeyerPartner does not remedy the asserted defects within a reasonable period of time or if MeyerPartner refuses to remedy the defects, the client may have the defects remedied by another tax consultant or attorney, or at their option demand a reduction in compensation or cancellation of the contract.
(3) Obvious inaccuracies (e.g. typographical errors, calculation errors) may be corrected by MeyerPartner at any time for third parties. Other defects may be corrected by MeyerPartner for third parties with the consent of the client. Consent is not required if the legitimate interests of MeyerPartner take precedence over the interests of the client.
(1) MeyerPartner is liable for its own faults and the faults of its vicarious agents. MeyerPartner is not liable for the faults of competent third parties commissioned by the client in their own name.
(2) Claims for damages caused due to negligence against MeyerPartner as referred to in Para. 1 are limited to €2,500,000 (two million five hundred thousand). The liability for intent remains unaffected.
(3) Insofar as individual cases will deviate from this, in particular liability is to be limited to an amount less than the amount stated in Para. 2, a written agreement is required which must be drawn up separately and handed over to the client together with these General Terms and Conditions upon conclusion of the contract.
(4) Third party liability to MeyerPartner shall only exist pursuant to Para. 1-3, given these are included in the scope of protection of the contract. This is not the case if MeyerPartner’s work results (comments, reports, opinions, etc.) related to this contract are disclosed without the written consent of MeyerPartner (see Para. 8, Sent. 3) because the consent of MeyerPartner for the transfer already results from the order.
(5) Claims of liability for damage resulting from injury to life, body, or health are excluded from the limitation of liability.
(6) Insofar as a claim for damages on the part of the client is not subject to a shorter statute of limitations by law, the statute of limitations shall be three years from the date on which the claim arose.
(1) The client shall cooperate insofar as it is necessary for the proper execution of work assignments. In particular, the client shall hand over to MeyerPartner, without being asked, all documents necessary for the execution of the assignment in full and in a timely manner such that MeyerPartner may reasonably process said documents. This also applies to information on all transactions and circumstances which may be of significance for the execution of the assignment. The client shall also take note of all communications from MeyerPartner, both written and oral, and to consult with MeyerPartner in case of doubt.
(2) The client shall refrain from any activities which may impair the independence of MeyerPartner or its vicarious agents.
(3) The client shall only pass on work product of MeyerPartner with the written consent of MeyerPartner, insofar as the assignment already gives consent for the client to do so to a specific third party.
(4) If MeyerPartner uses data processing software at the clients’ premises, the client is obligated to comply with the instructions of MeyerPartner regarding the installation and application of the software. Furthermore, the client is obligated to use the programs only to the extent prescribed by MeyerPartner, and may only use them to the extent permitted by MeyerPartner. The client may not distribute the software. MeyerPartner retains all usage rights. The client must refrain from doing anything which would prevent MeyerPartner from exercising the rights of use to the software.
The services of MeyerPartner represent their intellectual property. They are protected by copyright. Any dissemination of work product results outside their intended use is permitted only with the prior written consent of MeyerPartner.
If the client fails to cooperate with MeyerPartner in accordance with Para. 8, or is in default of acceptance of the services offered by MeyerPartner, MeyerPartner shall be entitled to set a reasonable deadline by which MeyerPartner refuses to continue the contract. After the deadline passes, MeyerPartner may terminate the contract without notice (see Num. 13, Para. 3). MeyerPartner retains the right to compensation for any damages or additional expenses incurred as a result of the client’s delay or failure to cooperate, even if MeyerPartner does not exercise its right of termination.
(1) Compensation (fees and reimbursement of expenses) due to MeyerPartner for their professional services in accordance with § 33 StBerG, specifically § 1 RBerG is determined in accordance with the Tax Consultant Compensation Ordinance (StBVV) and the Law on Compensation for Attorneys at Law (RVG). Only § 9 Para. 1, Sent. 1 StBVV as well as § 10 Para. 1, Sent. 1 RVG do not apply insofar as a personal signature required in § 9 Para. 1, Sent. 1 StBVV as well as § 10 Para. 1, Sent. 1 RVG is not required for the calculation. In this respect, the client waives the personal signature required by § 9(1) Sent. 1 StBVV and § 10, Para. 1, Sent. 1 RVG; a qualified electronic signature in accordance with § 126a BGB is therefore also not required. Fee invoices can be sent electronically. A higher or lower compensation than the statutory compensation may be agreed to in writing. The hourly rates of MeyerPartner are agreed upon above the maximum amount of the StBVV and RVG. The agreement of lower compensation is only permissible in extrajudicial matters. It must be commensurate with MeyerPartner’s performance, responsibility, and liability risk.
(2) For activities which are not regulated by the Compensation Ordinance (e.g. § 57 Para. 3, Num.. 2 und 3 StBerG), the agreed upon compensation shall apply, otherwise the statutory compensation intended for this activity shall apply, otherwise the usual compensation shall apply (§§ 612 Para. 2 and 632 Para. 2 BGB).
(3) A set off against a claim for compensation by MeyerPartner is only permissible with undisputed or legally established claims.
(1) MeyerPartner may demand an advance payment for fees and expenses already and/or likely to be incurred.
(2) If the requested advance payment is not received, MeyerPartner may, after prior notice, cease work on behalf of the client until the advance payment is received. MeyerPartner is obliged to inform the client in a timely manner of their intention to cease work if the client may suffer disadvantages as a result of work being ceased.
(1) The contract ends upon fulfillment of the agreed upon services, expiration of the agreed term, or termination. The contract does not end with death, the inability of the client to fulfill the contract, or, in the case of a company, with its dissolution.
(2) The contract may – if it constitutes a service contract within the meaning of §§ 611 and 675 BGB – be terminated by each contractual partner in an extraordinary manner in accordance with § 626 et seq., unless it is a service contract with fixed compensation, § 627 Para. 1 BGB. Notice of termination must be in written form. Deviations may be made on an individual basis and must be in writing, which must be drawn up separately and given to the client together with these General Terms and Conditions of contract when the contract is concluded.
(3) In the event of termination of the contract on the part of MeyerPartner, in order to avoid any loss of rights on the part of the client, those actions must always be carried out which are reasonable and cannot be postponed (e.g. application for an extension of the deadline in the event of impending expiration of the deadline). MeyerPartner is also liable for these actions according to Num. 7.
(4) MeyerPartner is obliged to give the client anything MeyerPartner has receives or has received for the execution of the order and which MeyerPartner obtains from its agency services. MeyerPartner is also obliged to provide the client with all necessary information, to provide information on the status of the matter upon request and to render an accounting.
(5) Upon termination of the contract, the client shall immediately return to MeyerPartner any data processing programs used to execute the work order, including any copies made, as well as other program documents, or delete them from all computers and hard drives. Upon termination of the contract by MeyerPartner, however, the client may withhold the programs for a period of time to be agreed upon, as far as this is absolutely necessary to avoid any possible legal disadvantages.
(6) After termination of the contract, all documents are to be collected from MeyerPartner.
If an order ends before it has been completed, MeyerPartner’s claim to compensation shall be governed by the law. If deviations are to be made in individual cases, an agreement in writing is required, which shall be drawn up separately and handed over to the client together with these General Terms and Conditions of Contract when the contract is concluded.
(1) MeyerPartner shall keep a reference file for a period of ten years after completion of the order. However, this obligation shall expire before the end of this period if MeyerPartner has requested in writing that the client accept the reference files, and the client has not complied within six months after receiving the request.
(2) Reference files within the meaning of this section include all documents MeyerPartner has received from or on behalf of the client in connection with its professional activities. This does not, however, apply to correspondence (via post, fax, or electronic means) between MeyerPartner and its clients and to documents which they have already received in original or copy, or to working papers prepared for internal purposes.
(3) MeyerPartner shall return the reference files to the client within a reasonable period upon request by the client, at the latest by completion of the order. MeyerPartner may make and retain copies or photocopies of documents which it returns to the client.
(4) MeyerPartner may refuse to publish the results of its work and the reference files until MeyerPartner is satisfied with its fees and expenses. This does not apply if the withholding of reference files and other individual documents would be inappropriate under the circumstances.
(1) Only German law applies to the order, its execution, and any claims resulting therefrom.
(2) Place of performance is Berlin, unless otherwise agreed upon.
In the case of individual provisions of these terms and conditions being or becoming invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid one which comes as close as possible to the intended objective.
MeyerPartner is neither willing nor obliged to participate in dispute resolution proceedings before a consumer arbitration body.
Pre notification in the form of an invoice is sent at least seven days before the agreed SEPA Direct Debit is charged.


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In SCVNGR, Inc. v. Punchh, Inc., 478 Mass. 324 (2017), the Supreme Judicial Court reversed a Superior Court Business Litigation Session decision that had dismissed the plaintiff’s complaint for lack of personal jurisdiction. Notably, the SJC’s opinion prohibits the trial courts, when deciding a challenge to personal jurisdiction, from engaging in the frequently employed practice of skipping the analysis under the long-arm statute and jumping directly to the analysis under the Due Process Clause of the U.S. Constitution. In reaching this conclusion, the SJC “clarif[ied]” that “the long-arm statute’s reach is not coextensive with what due process allows.” Id. at 330 n.9.
SCVNGR, Inc., a Massachusetts-based company doing business as LevelUp, sued Punchh, Inc., a California-based competitor, for defamation. Punchh moved to dismiss for lack of personal jurisdiction. Id. at 325. After allowing some limited jurisdictional discovery, Judge Kaplan of the Business Litigation Section allowed Punchh’s motion to dismiss, finding that Punchh lacked the minimum contacts with Massachusetts necessary for an exercise of personal jurisdiction to comport with the Due Process requirements of the U. S. Constitution. Id. Although Judge Kaplan recognized that “typically a Superior Court judge presented with a Rule 12(b)(2) argument begins with an analysis of whether the requirements of the long-arm statute have been met,” he nevertheless proceeded directly to the federal Due Process considerations, noting that this was where “both parties ha[d] focused their arguments.” Id.
LevelUp appealed the dismissal to the Appeals Court. The SJC, of its own accord, took direct appellate review. Id.
“Prior to exercising personal jurisdiction over a nonresident defendant, a judge must determine that doing so comports with both the forum’s long-arm statute and the requirements of the United States Constitution.” Id. at 325 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 290 (1980)). Massachusetts’s long-arm statute, G.L. c. 223A, § 3, provides eight enumerated categories of actions which can give rise to personal jurisdiction over a foreign defendant. Two of those categories address claims arising out of domestic relationships (marriage, divorce, child custody, and the like); one from the ownership of real estate within Massachusetts; and one from offering insurance within the Commonwealth. The remaining four categories address claims that arise out of a defendant’s: (a) transacting business within Massachusetts; (b) contracting for goods or services within Massachusetts; (c) committing a tort within Massachusetts; and (d) committing a tort outside of Massachusetts that causes injury within Massachusetts if the Defendant also does or solicits business within Massachusetts or derives substantial revenues from goods or services provided in Massachusetts.
Unlike a number of other states, Massachusetts’s long-arm statute does not explicitly extend personal jurisdiction to the limits of the U. S. Constitution. Nevertheless, two seminal SJC cases had seemed to interpret the statute to have the same broad scope. In “Automatic” Sprinkler Corp. v. Seneca Foods Corp., 361 Mass. 441, 443 (1972), the SJC held: “We see the function of the long arm statute as an assertion of jurisdiction over the person to the limits allowed by the Constitution of the United States.” Likewise, in Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6 (1979), the SJC held: “Since we have stated that our long arm statute, G. L. c. 223A, functions as ‘an assertion of jurisdiction over the person to the limits allowed by the Constitution of the United States,’ …the two questions tend to converge” (quoting “Automatic” Sprinkler). Good Hope also, however, contained the seeds of SCVNGR’s “clarif[ication],” stating that the long-arm statute “asserts jurisdiction over the person to the constitutional limit only when some basis for jurisdiction enumerated in the statute has been established.” Good Hope, 378 Mass. at 1 (emphasis added).
Prior to SCVNGR, state and federal cases applying Massachusetts law frequently cited “Automatic” Sprinkler and/or Good Hope in support of the proposition that Massachusetts’s long-arm statute extended to the outer reaches of the Due Process Clause and that, as a result, the two-step inquiry could be addressed in a single inquiry. See, e.g., OpenRisk, LLC v. Roston, 90 Mass. App. Ct. 1107 (2016) (Rule 1:28) (“The Massachusetts long-arm statute, G. L. c. 223A, § 3, however, allows for an assertion of jurisdiction over the person to the limits allowed by the Constitution of the United States. …It is appropriate, therefore, for the court to sidestep the statutory inquiry and proceed directly to the constitutional analysis”) (citations omitted); FTI, LLC v. Duffy, 2017 Mass. Super. LEXIS 93, at *8 (Suffolk Super. Ct. 2017); Let’s Adopt! Glob., Inc. v. Macey, 32 Mass. L. Rep. 573 (Worcester Super. Ct. 2015); Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 52 (1st Cir. 2002).
In light of this precedent, the SCVNGR parties’ decision to focus exclusively on the question of whether the Court could exercise jurisdiction consistent with Due Process made perfect sense. In baseball terms (this is, after all, summer in New England): since the runner cannot advance to third without touching both first and second bases, if the runner missed second, the question of whether he touched first is moot. Indeed, in at least two cases pre-dating SCVNGR the First Circuit noted that even if Massachusetts’ long-arm statute might not extend to the limits of Due Process, examining the long-arm statute was not necessary if the claims clearly failed to meet the requirements of Due Process. See A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 58-59 (1st Cir. 2016); Copia Communs., LLC v. AMResorts, L.P., 812 F.3d 1, 3-4 (1st Cir. 2016).
To the extent that “Automatic” Sprinkler …identifies “the function of the long arm statute as an assertion of jurisdiction over the person to the limits allowed by the Constitution of the United States,” we take this opportunity to clarify that, in accordance with Good Hope. . . the long-arm statute’s reach is not coextensive with what due process allows.
SCVNGR, 478 Mass. at 330 n.9.
Id. at 330 (citations omitted).
As a result, the SJC remanded the case to the Superior Court for a determination, first, as to whether the long-arm statute’s requirements were met and only then for a determination as to whether an exercise of jurisdiction comports with the requirements of Due Process. In doing so, the SJC noted that the subsequent re-examination of the constitutional due process question would likely take place “on a presumably fuller record,” apparently assuming that the trial court would allow the parties some additional jurisdictional discovery before ruling on the remanded motion (id. at 330).
Another recent SJC opinion drives home the point that neither the parties nor the court can leapfrog over the long-arm statute and proceed directly to the constitutional question. In Exxon Mobil Corp. v. Attorney General, 479 Mass. 312, 317 n.3 (2018), citing SCVNGR, the SJC noted that although the parties’ argument on the jurisdictional issues focused exclusively on the due process question, the Court would first analyze them under the long-arm statute, which it proceeded to do.
Neither practitioners nor the Court should address whether an assertion of personal jurisdiction comports with the requirements of the Due Process Clause without first addressing whether the plaintiff’s claims assert a cause of action that brings the case within the parameters of the Massachusetts long-arm statute. In short, although the plaintiff may still get tagged-out for failing to touch second base, we will not know until a call is made at first.
Evan Fray-Witzer is a founding partner of Ciampa Fray-Witzer. He maintains an active employment litigation, counseling, and defense practice; a sophisticated litigation and counseling practice, representing businesses in a wide range of commercial disputes; and a thriving appellate practice in both the state and Federal Courts.

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Are Accounts Established for a Director’s Grandchildren Subject to Regulation O?
The Bank has several accounts in the names of the grandchildren of one of its directors, with the spouse of the director named as the secondary accountholder. Such are overdraft accounts with a $500 maximum allowed per account, for a total of six accounts with an aggregate credit balance of $3,000. Are these accounts considered loans to an insider or related interest? Should the Bank be tracking the accounts for Regulation O purposes?
The overdraft accounts for the grandchildren would not be covered by Regulation O, and thus, there would be no need to track them, as the spouse of the director is not an insider and there is no obvious beneficial interest to the director from the accounts.
Under Regulation O, if an insider is secondarily liable on an account, it would be considered an extension of credit subject to the requirements of the regulation, since the insider would be obligated to pay money to the Bank under certain circumstances. 12 CFR §215.3(a)(7).
An “insider,” for Regulation O purposes, is an executive officer, director, or principal shareholder of a financial institution or any related interest of such a person. A “related interest” is a company or political campaign controlled by that person. 12 CFR §215.2(h), (n). The spouse of an insider, therefore, would not be considered an insider.
The question, then, is whether the director obtained a “tangible economic benefit” as a result of the overdraft accounts established by the director’s spouse for the benefit of their grandchildren. Barring any facts indicating that the director has use of the accounts or is receiving account proceeds, it would seem that the benefit to the director is the satisfaction of knowing that the grandchildren have the accounts. This would be an intangible benefit, however, and thus outside the beneficial interest rule of Regulation O.
The cut off time for ATM deposits made on a business day that the bank is open is 10pm. Deposits made at the ATM after 10pm on a day that the bank is open will be considered the next business day. In addition, ATM deposits made on a day that the bank is not open will be considered the next business day.
A recent review of the Bank’s system configuration indicated that the cut-off time for ATM deposits made on a business day is actually 7pm and not 10pm, and that deposits made at the ATM after 7pm on a day that the Bank is open would be considered the next business day. In addition, ATM deposits made on a day that the Bank is not open will be considered the next business day.
The Bank wishes to correct the discrepancy between the disclosure and system processing by making the disclosure conform to the processing parameters. Will it be necessary to provide prior notice before implementing the change?
Under Regulation CC, the Bank must send consumer accountholders a notice of the change at least 30 days prior to implementing it. The proposed language will be appropriate for that purpose.
Under Regulation CC, a financial institution must provide a disclosure describing its policy as to when funds deposited in an account are available for withdrawal. The disclosure must reflect the policy followed by the institution in most cases. The institution may impose longer delays on a case-by-case basis or by invoking one of the exceptions permitted by the regulation, such as for deposits into new accounts or in excess of $5,000, provided that this is reflected in the disclosure. 12 CFR §229.16(a).
A description of how the customer can differentiate between a proprietary and a nonproprietary ATM, if the bank makes funds from deposits at nonproprietary ATMs available for withdrawal later than funds from deposits at proprietary ATMs. 12 CFR §229.16(b).
The financial institution must send a notice to holders of consumer accounts at least 30 days before implementing a change to its availability policy regarding such accounts. However, if a change expedites the availability of funds, it may be disclosed no later than 30 days after implementation. 12 CFR §229.18(e).
In this case, the Bank provided a disclosure that funds deposited into one of its ATMs no later than 10 p.m. on a business day would be made available that day. As it discovered, however, its system requires such deposits to be made no later than 7 p.m. on a business day. The Bank has been manually overriding the system to make funds available in accordance with the disclosure. Now it wants to change to disclosure to correspond to system requirements.
As this change affects the disclosed policy of the Bank, and since the earlier cut-off time will not have the effect of expediting the availability of funds, the Bank must send notice at least 30 days prior to implementing it. As a matter of best practice, the notice should also be posted in a conspicuous place in each location where the Bank’s employees receive deposits to consumer accounts.
The Bank charges all borrowers a 1% closing fee for residential mortgage loans. It has entered into an agreement with an independent mortgage broker whereby it will pay the broker a fee equal to half of the closing fee for any loans the broker brings in. The Bank does not believe that it will be necessary to itemize the broker’s fee on the Loan Estimate, since the charge is not being paid directly by the consumer, but that it will be necessary to itemize the charge on the Closing Disclosure.
The Bank’s assessment is correct, since origination charges are to be itemized on the Loan Estimate only if they are paid directly by the consumer to a creditor or loan originator, but must be disclosed on the Closing Disclosure regardless of who pays the charge.
The Bank is correct in its assessment of the disclosure requirements applicable to the fee paid by it to the mortgage broker.
Under the TILA-RESPA Integrated Disclosure (“TRID”) Rules of Regulation Z, a creditor must provide an itemization of origination charges in the Loan Estimate under the master heading “Closing Cost Details” and the subheading, “Origination Charges.” For the purpose of this disclosure, origination charges are those charges paid by the consumer to each creditor and any loan originator for originating and extending the credit, regardless of how the credit is denominated. 12 CFR §1026.37(f)(1); Official Interpretations, ¶1026.37(f)(1) – 1.
Only charges paid directly by the consumer to compensate a loan originator are included in the amounts listed in the Loan Estimate, however. Compensation of a loan originator paid indirectly by the creditor, as through the interest rate, is not itemized. Official Interpretations, ¶1026.37(f)(1) – 2; CFPB, TILA-RESPA Integrated Disclosure, p. 32.
In this case, the mortgage broker will be considered a “loan originator,” as per section 36(a)(2) of Regulation Z, but the charge paid to the broker will be paid by the Bank rather than by the consumer. It will not be necessary, then, to itemize the broker’s fee on the Loan Estimate.
It will be necessary to itemize the mortgage broker’s fee on the Closing Disclosure, since all compensation paid to a loan originator must be disclosed regardless of the party that pays the compensation. Compensation paid by a creditor to a third-party loan originator is designated as paid by others on the Closing Disclosure. 12 CFR §1026.38(f)(1); Official Interpretations, ¶1026.38(f)(1) – 2.