Higher Education

Our attorneys believe that learning about a client and its educational mission is essential to effectively representing institutions of higher learning.  We make the effort to understand our clients and the issues they face daily in their operations so we can anticipate and address potential legal issues before they become problems.

Our attorneys represent colleges and universities on a wide range of issues, including labor, employment and employee benefits, intellectual property, faculty matters, student affairs, land use, corporate governance, general litigation and planned giving.

Labor and Employment

Recognizing that employees are an integral part of a college or university’s academic mission and core operations, our attorneys represent institutions of higher education in all facets of labor and employment law.  We handle employment litigation, negotiate and administer collective bargaining agreements, including the defense of unfair labor practice charges, and provide day-to-day advice and training on human resource-related issues and employee benefits.

Representative Matters:

• Obtained a jury verdict in favor of an institution against a former dean who alleged breach of contract and gender discrimination
• Obtained a ruling in an institution’s favor at Public Hearing before the Massachusetts Commission Against Discrimination on claims of gender discrimination and sexual harassment
• Advised an institution in formulation of collective bargaining strategy and successfully negotiated multiple collective bargaining agreements achieving institution’s goals
• Represented an institution during a union organizing campaign and defended related unfair labor practice allegations
• Successfully defended institutions in grievance arbitrations involving, by way of example, discipline, job classifications, promotions, reassignments, transfers, reductions-in-force, subcontracting, hours of work, safety and overtime
• Advised institutions on managing leaves of absence, discipline, employees with disabilities, conducting layoffs, litigation avoidance, wage and hour compliance, independent contractor classification, OSHA compliance, hiring and pre-employment drug testing and background checks

Employee Benefits and Executive Compensation

Mirick O'Connell's Employee Benefits Group provides legal services to clients with respect to the laws that affect executive compensation arrangements and work force benefit programs.  The Group has knowledge and experience advising public and private colleges and universities in the following areas:

• Designed and implemented an institution’s executive compensation plans, including 457 deferred compensation arrangements; workforce retirement plans, including qualified retirement plans such as 403(b) and 401(k) plans; welfare benefit plans, including health care, section 125 cafeteria and “wrap” plans; and fringe benefit plans, including educational assistance and tuition reduction plans
• Counseled an institution on administration, operation, interpretation and reporting and disclosure requirements of executive compensation and workforce benefit plans
• Advised plan sponsors within an institution regarding fiduciary liabilities under ERISA
• Counseled institutions with respect to HIPAA's portability, privacy and security rules, COBRA, USERRA, FMLA, Medicare and other group health plan Federal mandates, including The Genetic Information Nondiscrimination Act of 2008, Michelle's Law, The Children's Health Insurance Program Reauthorization Act of 2009  
• Performed audit for institution on existing plans for compliance of Internal Revenue Service and Department of Labor rules and regulations 

Student Affairs

Our attorneys counsel and represent institutions of higher education in matters of student affairs, including claims of discrimination, student rights, discipline and compliance with state and federal disability laws.

Representative Matters:

• Defended an institution against allegations of discrimination by Department of Education’s Office for Civil Rights
• Defended decision to expel students for incidents of misconduct, including plagiarism, violence and illegal drug use
• Drafted student handbooks and codes of conduct
• Advised institutions regarding compliance with FERPA

Intellectual Property

Intellectual property protection supports the core mission of the discovery and transmission of knowledge.  Such research, particularly scientific and technological research, creates protectable interests.  Our attorneys routinely obtain intellectual property protection for institutions of higher learning by pursuing patents, copyrights and trademarks. 

Representative Matters:

• Obtained trademark and copyright protection for a liberal arts college
• Assisted licensing office with the strategic development and positioning of an international patent portfolio based on a university small-molecule research program for pharmaceutical partnership
• Obtained U.S. and foreign patent protection for a research institution for a method for treating chronic rejection of transplanted organs
• Provided strategic advice regarding costs and advantages of foreign patent prosecution
• Obtained U.S. patent protection for a university for a computer network protocol
• Obtained U.S. and foreign patent protection for a university for new anti-anxiety compounds with reduced side effects 

Land Use and Environmental Law

Our Land Use and Environmental Law Group has a long history of providing institutions of higher education with a full range of services associated with the acquisition, permitting, leasing, financing and development of real property.

Representative Matters:

• Represented an institution in obtaining necessary zoning permits and approvals for a new dormitory and in negotiations with abutters to the dormitory site
• Represented an institution in the acquisition of an existing building, including conducting negotiations, performing due diligence regarding existing licenses, analyzing title and survey issues and financing
• Represented an institution in connection with a bond financing and the negotiation of contracts for the construction of a new dormitory
• Represented an institution in the acquisition of property, including the negotiation of ground leases

Corporate Governance

We counsel colleges and universities in all matters related to the business of running an institute of higher learning, including contract disputes and debt financings for facilities expansion.  We assist colleges and universities with organizational matters such as tax-exempt status issues and unrelated business taxable income, liability issues facing boards of trustees, the proper exercise of trustee fiduciary duties, and “mini-Sarbanes-Oxley” compliance, including the creation and management of audit committees and the establishment of conflict of interest policies and procedures.

Representative Matters:

• Representing institutions in various day-to-day business matters, such as negotiating and drafting contracts
• Advising Boards of Trustees on corporate governance and fiduciary duty issues
• Advising institutions as creditors in bankruptcy proceedings
• Representing institutions in obtaining project financing
• Negotiated numerous joint-venture agreements on behalf of an institution

Litigation

Institutions of higher education are increasingly involved in litigation, whether as a plaintiff or a defendant.  Our litigators provide high quality, cost-effective litigation and strategic counseling services for our clients.  Our litigators are seasoned, experienced trial attorneys.  This experience enables us to develop and implement the best strategy to achieve the client’s goals, whether that strategy calls for a quick resolution or a jury trial.   

Representative Matters:

• Represented an institution in a suit alleging violation of a joint-venture agreement; obtained judgment in the client’s favor after trial
• Obtained a jury verdict in favor of a research department of an institution in a suit for breach of contract
• Represented an institution in a breach of contract action with a foreign university involving a contract to provide our client’s students with study-abroad programs; obtained a favorable settlement through mediation of the dispute
• Defended an institution in a zoning dispute and negotiated a favorable settlement for the client

Planned Giving

Planned giving plays a vital role as institutions of higher learning seek to build or rebuild their endowments.  Our attorneys are experienced in all aspects of sophisticated planned giving, such as the creation and management of charitable split interest trusts, gifts of real estate, and the establishment and operation of private foundations, providing counsel to both the institution and individual donors.

Representative Matters:

• Represented an institution receiving a remainder interest in real estate as a donation
• Represented an institution in setting up charitable remainder trusts where the institution was named as both the Trustee and remainder beneficiary
• Preparation of estate plans that incorporate substantial and complex charitable gifts to institutions of higher learning
• Established, served on and advised a planned giving committee