Bassett, et al. v. Triton Technologies, Inc., et al. (Lawyers Weekly No. 12-074-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV03475-BLS2 ____________________ LAURA BASSETT, JAMIE ZALINSKAS, ALYSSA WRIGHT, and ALEXIS CRAMER, on behalf of themselves and all others similarly situated v. TRITON TECHNLOGIES, INC., S. JAY NALLI, and ANDREW S. BANK ____________________ MEMORANDUM AND ORDER ALLOWING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION The four named plaintiffs used to work for Triton Technologies, Inc., as “inside sales” employees. They assert two distinct claims for unpaid wages. The first claim alleges that Defendants violated the overtime statute, G.L. c. 151A, § 1A, by not paying Plaintiffs time-and-a-half for working more than forty hours per week. The second claim alleges that Defendants violated the Sunday pay law, G.L. c. 136, § 6(50), by not paying Plaintiffs time-and-a-half for working on Sundays. Plaintiffs have now moved to certify a class consisting of two distinct subclasses—one comprised of sales employees at Triton who have not received time-and-a-half for working more than forty hours in any given week, and another comprised of all sales employees who have not received time-and-a-half for hours worked on a Sunday. The Court finds that class certification is appropriate because both sub-classes are so numerous that it is not practical to join all class members, there are questions of law or fact that are common to all members of each subclass and that predominate over questions of fact that affect only individual members, the claims of the named Plaintiffs are representative of the claims of each subclass, the named Plaintiffs and their counsel will fairly and adequately protect the interests of the class, and a class action would permit the most fair and efficient adjudication of this dispute. See Mass. R. Civ. P. 23. Although Defendants do not oppose certification of the overtime subclass, they argue that the class should be limited to salespeople who claim to be owed overtime by Triton for work performed after November 13, 2013. Defendants point out that the – 2 – overtime claim is subject to a three-year statute of limitations, see G.L. c. 151, § 20A,1 and this action was filed on November 14, 2016. Plaintiffs agree that it is appropriate to limit the overtime class to this three-year period. The Court will do so. Defendants do oppose certification of the Sunday subclass. They argue that this claim is subject to a six-month statute of limitations under G.L. c. 136, § 9, and that none of the named Plaintiffs worked for Triton within six months before this lawsuit was filed (i.e. after May 13, 2015). The Court disagrees. The Sunday claim is not governed by the six-month limitations period invoked by Defendants. That statute provides that “Prosecution for violations of sections two, three, or five [of chapter 136] […]
Rauhaus Freedenfeld & Associates LLP v. Prince (Lawyers Weekly No. 12-075-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV02016-BLS2 ____________________ RAUHAUS FREEDENFELD & ASSOCIATES LLP v. TODD PRINCE ____________________ MEMORANDUM AND ORDER ON PLAINTIFFS’ MOTION TO DISMISS COUNTERCLAIMS Rauhaus Freedenfeld & Associates LLP is an architectural firm based in Boston, Massachusetts, that specializes in designing animal hospitals. It is suing Todd Prince for not paying Plaintiff in full for designing renovations for an animal hospital owned by Prince in Deerfield, Illinois. Prince asserts various counterclaims. Plaintiff has moved to dismiss four of the five the counterclaims; it does not seek dismissal of the counterclaim for breach of contract (Count I). The Court will allow the motion in part and deny it in part. Specifically, it will dismiss the claim for negligent misrepresentation but otherwise deny the motion to dismiss. 1. Fraud Claim. Plaintiff argues that the counterclaim for fraud (Count II) is not pleaded with the particularity required by Mass. R. Civ. P. 9(b). Under this rule, a claimant must “at a minimum” support their claim for fraud by specifically alleging “the identity of the person(s) making the” allegedly fraudulent “representation, the contents of the misrepresentation, and where and when it took place,” and must also “specify the materiality of the misrepresentation, [his] reliance thereon, and resulting harm.” Equipment & Systems for Industry, Inc. v. NorthMeadows Constr. Co., Inc., 59 Mass. App. Ct. 931, 931-932 (2003) (rescript). Prince has stated his fraud claim with sufficient particularity. The allegations in the counterclaim plausibly suggest that Plaintiff’s agent made specific and false statements of fact to Prince at a meeting in September 2015, Plaintiff made specific and false promises in the parties’ contract that Plaintiff never intended to perform, Plaintiff made these false statements and promises to induce Prince to sign the contract, Prince did so to his detriment, and as a result Prince was damaged in that he paid $ 126,098.56 for draft drawings that he cannot use. These allegations state a claim for fraud. See Masingill v. EMC Corp., 449 Mass. 532, 540 (2007) (elements of – 2 – fraud); McCarthy v. Brockton Natl. Bank, 314 Mass. 318, 325 (1943) (“A principal is liable for the fraud committed by his agent or servant acting within the scope of his employment.”); Cumis Ins. Society v. BJ’s Wholesale Club, Inc., 455 Mass. 458, 474 (2009) (fraud claim may be based on false promise if “the promisor had no intention to perform the promise at the time it was made”) (quoting Yerid v. Mason, 341 Mass. 527, 530 (1960)). The Court reminds the parties, however, that an “intention not to perform a promise” cannot be inferred merely from later “nonperformance of the promise.” Galotti v. United States Trust Co., 335 Mass. 496, 501 (1957); […]
Categories: News Tags: 1207517, Associates, Freedenfeld, Lawyers, Prince, Rauhaus, Weekly
Meunier, et al. v. Market Strategies, Inc. (Lawyers Weekly No. 12-072-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV01546-BLS2 1684CV03592-BLS2 ____________________ JOHN J. MEUNIER, CHRISTY M. WHITE, and the JOHN J. MEUNIER 2012 IRREVOCABLE TRUST v. MARKET STRATEGIES, INC. ____and____ MARKET STRATEGIES, INC. v. COGENT RESEARCH HOLDINGS LLC ____________________ MEMORANDUM AND ORDER ON MARKET STRATEGIES, INC.’S MOTION FOR SUMMARY JUDGMENT John Meunier, Christy White, and the John J. Meunier 2012 Irrevocable Trust (the “Trust”) claim that Market Strategies, Inc. (“MSI”) breached its contractual obligations to make certain payments to Cogent Research Holdings LLC (which the parties refer to as “Holdco”). They also claim that after signing the contract at issue MSI misrepresented its willingness and ability to pay what it owes and thereby committed deceptive acts in violation of G.L. c. 93A. Finally, Meunier and White seek declaratory judgment regarding the enforceability of certain non-competition, non-solicitation, and confidentiality agreements. MSI has moved for summary judgment. The Court will grant summary judgment in MSI’s favor on the contract claim because Plaintiffs are not intended beneficiaries of MSI’s payment obligations to Holdco as a matter of law. It will also allow MSI’s motion with respect to the declaratory judgment claim because any dispute regarding enforceability of the non-competition or non-solicitation agreements is moot and Plaintiffs lack standing to challenge the confidentiality agreement on the ground that MSI committed a material breach of contract by not paying Holdco. However, the Court will deny the summary judgment motion with respect to the misrepresentation and c. 93A claims because they are independent from the contract claim. 1. Undisputed Factual Background. These actions arise from the May 2013 sale of Cogent Research LLC to MSI. At the time of the transaction, Meunier, White, – 2 – and the Trust were the sole owners of Cogent Research. They agreed to sell Cogent Research to MSI in exchange for an “Initial Payment” of $ 8.0 million, a “Delayed Payment” of $ 2.0 million, and a “Contingent Payment” of roughly $ 3.15 million that was due after MSI received additional audited financial statements of Cogent Research. Meunier and White also agreed to work for MSI for three years and entered into a non-competition, non-solicitation, and confidentiality agreement. Meunier, White, and the Trust created Holdco in connection with this transaction. They are the sole owners of Holdco. They transferred ownership of Cogent Research to Holdco, which in turn sold Cogent Research to MSI. The parties’ purchase agreement provides that MSI was required to pay an Initial Payment, Delayed Payment, and Contingent Payment to Holdco. MSI does not have any contractual obligation to make any of these payments to Meunier, White, or the Trust. Although the parties’ purchase agreement provides that MSI was to make the Deferred and Contingent Payments to Holdco […]
Bay Colony Property Development Company, et al. v. Headlands Realty Corporation, et al. (Lawyers Weekly No. 12-069-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV00936-BLS2 ____________________ BAY COLONY PROPERTY DEVELOPMENT COMPANY and WILLIAM E. LOCKE, JR. v. HEADLANDS REALTY CORPORATION; PROLOGIS LOGISTICS SERVICES INC.; AMB PROPERTY II, L.P.; AMB PROPERTY CORPORATION; and PROLOGIS, INC. ____________________ MEMORANDUM AND ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND DENYING PLAINTIFFS’ CROSS-MOTION TO STRIKE Bay Colony Property Development Company and William E. Locke, Jr., claim that Defendants hired them to plan, coordinate, and supervise the development of two different properties in Pennsylvania. They allege that Defendants promised to pay Bay Colony two percent of the development costs (the “Base Fee”) plus ten percent of the profits (the “Incentive Fee”) for its work on one site, and promised to pay the same percentage amounts to Locke for his work on the other site. Plaintiffs allege they have not been paid and are owed part of the Base Fees and all of the Incentive Fees for the two projects. Plaintiffs assert claims for breach of contract, unjust enrichment, and declaratory judgment as to enforceability of the alleged contracts. Defendants have moved to dismiss on the ground that all claims are time barred. They argue that the statutory limitations period began to run on October 29, 2010, when AMB Property Corporation (“AMB”) sent a letter disputing whether it had any binding contract with Bay Colony. If that were correct, then all claims would be time barred—whether the Massachusetts six-year limitations period or the Pennsylvania four-year limitations period controlled—because this action was not filed in Middlesex Superior Court until November 14, 2016, more than six years later. The Court concludes that it may consider the October 2010 letter in deciding the motion to dismiss, but that it must DENY the motion because that letter did not put Plaintiffs on notice of any actual or anticipated breach of contract. 1. Considering the 2010 Letter. Plaintiffs ask the Court to strike or at least disregard the October 29, 2010, letter that is attached to Defendants’ motion to dismiss. They argue that the Court may not consider this letter without converting – 2 – the motion to dismiss into a motion for summary judgment because Plaintiffs did not attach the letter to, reference the letter in, or rely on the letter in drafting the complaint. The Court disagrees. The authenticity of this letter and the fact that it was sent to Plaintiffs are not in dispute, as Plaintiffs acknowledged at oral argument. It is therefore permissible and appropriate for the Court to consider the letter in deciding Defendants’ motion to dismiss. When deciding a motion to dismiss under Rule 12(b)(6), a court may consider “documents the authenticity of which is not disputed by the parties” without converting the motion […]
Xu, et al. v. Donovan, et al. (Lawyers Weekly No. 12-066-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1584CV01625-BLS2 ____________________ EDWARD XU ppa Li Chen, LI CHEN, and PETER XU v. PAUL DONOVAN, TUFTS MEDICAL CENTER PARENT, INC., and TUFTS MEDICAL CENTER INDEMNITY COMPANY, LTD. ____________________ MEMORANDUM AND ORDER ALLOWING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT This dispute relates to a high/low agreement in a prior medical malpractice case. Plaintiffs had sued two doctors and a nurse who worked at Tufts Medical Center (“Tufts”). The parties to that prior action and Tufts agreed prior to the jury verdict that Plaintiffs would receive a maximum of $ 2.5 million for each defendant found to be liable and be paid $ 300,000 for each defendant found not to be liable. The jury found that the two physicians were liable for negligence and that the nurse was not. It award $ 24.43 million as damages against the doctors. In accord with the high/low agreement, Plaintiffs recovered only $ 5.3 million. Plaintiffs claim they were fraudulently induced to enter into the high/low agreement by representations that the available insurance was capped at $ 2.5 million per defendant, and that in reality there was an excess insurance policy that provided up to $ 30 million in coverage with no cap per defendant. They seek damages from the parent of the medical center (Tufts Medical Center Parent, Inc., or TMCP), the captive insurer that issued the primary and excess insurance policies (Tufts Medical Center Indemnity Co., Ltd., or TMCIC), and Paul Donovan, who is a Senior Claims Administrator for Tufts and signed the high/low agreement on its behalf. TMCP and TMCIC assert a counterclaim seeking a declaratory judgment stating that the total insurance coverage available for the claims in the underlying malpractice case, including both the primary and excess insurance policies, was capped at $ 2.5 million per person per claim or medical incident. TMCP, TMCIC, and Donovan move for summary judgment on all claims and counterclaims. The Court concludes that TMCP, TMCIC, and Donovan are entitled to summary judgment in their favor. The excess and primary insurance policies – 2 – unambiguously provide that the maximum coverage for the doctors and nurse sued in the prior action was $ 2.5 million per individual defendant. TMCP and TMCIC are entitled to a declaratory judgment to that effect. And Plaintiffs’ claims against all Defendants for fraud and for committing unfair and deceptive practices in violation of G.L. c. 93A, and its separate claim against Donovan only for negligence, all fail as a matter of law. 1. Parsing the Insurance Policies. 1.1. Reading Unambiguous Policy Language. “[C]onstruing the language of an insurance contract is a question of law for the trial judge,” and therefore is appropriate for resolution on a […]
People for the Ethical Treatment of Animals, Inc. v. Department of Agricultural Resources, et al. (Lawyers Weekly No. 10-105-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12207 PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. vs. DEPARTMENT OF AGRICULTURAL RESOURCES & another.[1] Suffolk. February 6, 2017. – June 14, 2017. Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ. Public Records. Agriculture. Animal. Statute, Construction. Privacy. Civil action commenced in the Superior Court Department on October 14, 2014. The case was heard by Christopher J. Muse, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. David Milton for the plaintiff. Amy Spector, Assistant Attorney General, for the defendants. Laura Rótolo & Jessie Rossman, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief. Jessica White, for Prisoners’ Legal Services of Massachusetts, amicus curiae, submitted a brief. LENK, J. This case concerns the scope of two exemptions from the statutory definition of “public records.” Specifically, it probes whether information, such as names, addresses, telephone numbers, and other information, contained on animal health certificates in the custody of the Department of Agricultural Resources, is subject to disclosure in response to a public records request. A Superior Court judge determined that such information is protected from disclosure under statutory exemptions G. L. c. 4, § 7, Twenty-sixth (n) and (c), implicating, respectively, public safety and privacy. For the reasons that follow, we vacate that order and remand for further proceedings consistent with this opinion.[2] Background. 1. Public records framework. At all times relevant to this case, two statutes governed access to public records: G. L. c. 66, § 10, and G. L. c. 4, § 7, Twenty-sixth.[3] General Laws c. 66, § 10, sets forth the conditions under which government entities, through their records custodians, must provide access to public records. “The primary purpose of G. L. c. 66, § 10, is to give the public broad access to governmental records.” Worcester Tel. & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 382-383 (2002). The term “public records,” in turn, is defined by G. L. c. 4, § 7, Twenty-sixth. The definition sweeps in a wide array of documents and data made or received by employees, agencies, or other instrumentalities of the Commonwealth. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 614 (1993), citing G. L. c. 4, § 7, Twenty-sixth (1990 ed.). This expansive definition of “public records” is statutorily limited by twenty enumerated exemptions in G. L. […]
Oxford Global Resources, LLC v. Hernandez (Lawyers Weekly No. 12-065-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV03911-BLS2 ____________________ OXFORD GLOBAL RESOURCES, LLC v. JEREMY HERNANDEZ ____________________ MEMORANDUM AND ORDER ALLOWING DEFENDANT’S MOTION TO DISMISS ON FORUM NON CONVENIENS GROUNDS Oxford Global Resources, LLC, is a recruiting and staffing company that places individual contractors who have specialized technical expertise with businesses who need workers having such skills. Oxford hired Jeremy Hernandez to work in its Campbell, California, office. To accept Oxford’s offer Hernandez had to and did sign an offer letter and a separate “protective covenants agreement” (the “Agreement”) that contains confidentiality, non-competition, and non-solicitation provisions. The Agreement provides that it is governed by Massachusetts law and that any suit arising from or relating to that contract must be brought in Massachusetts. Oxford alleges that Hernandez breached the Agreement by using information regarding the identity of Oxford’s customers to solicit those customers on behalf of a competitor in California. Hernandez has moved to dismiss this action under the forum non conveniens doctrine, arguing that this action should be heard in California, where he lives and worked for Oxford. The Court concludes that the forum selection clause is unenforceable and that the interests of justice require that this case be heard in California. The Court will therefore ALLOW the motion to dismiss pursuant to G.L. c. 223A, § 5, and the common law doctrine known as forum non conveniens. 1. Enforceability of the Forum Selection Clause. 1.1. California Law Governs the Agreement. Whether Massachusetts courts will enforce a forum selection clause like the one agreed to by Hernandez must be decided under whatever law governs the contract as a whole. See Melia v. Zenhire, Inc., 462 Mass. 164, 168 (2012); Jacobson v. Mailboxes Etc. U.S.A., Inc., 419 Mass. 572, 575 (1995). Thus, before deciding whether the Agreement’s mandatory forum selection clause is enforceable the Court must decide which State’s law governs this – 2 – contract.1 Although the Agreement specifies that it is governed by Massachusetts law, the Court concludes that choice-of-law provision is unenforceable and that the contract is instead governed by California law. “A choice-of-law clause should not be upheld where,” as here, “the party resisting it did not have a meaningful choice at the time of negotiation — i.e., where the parties had unequal bargaining power, and the party now attempting to enforce the choice-of-law clause essentially forced the clause upon the weaker party,” and enforcing the clause would be unfair to the weaker party. Taylor v. Eastern Connection Operating, Inc., 465 Mass. 191, 195 n.8 (2013). This follows from the general rule that contracts of adhesion are not enforceable if “they are unconscionable, offend public policy, or are shown to be unfair in the particular circumstances.” McInnes […]
Langan v. Board of Registration in Medicine (Lawyers Weekly No. 10-103-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12242 MICHAEL L. LANGAN vs. BOARD OF REGISTRATION IN MEDICINE. June 13, 2017. Board of Registration in Medicine. Doctor, License to practice medicine. Practice, Civil, Action in nature of certiorari. Michael L. Langan appeals from a judgment of the county court denying his petition for relief in the nature of certiorari from a decision of the Board of Registration in Medicine (board). We affirm. Background. Langan is a board-certified physician in geriatrics and internal medicine. In 2008, after he had tested positive for various controlled substances, he and the board entered into a letter of agreement, under which he agreed to certain conditions in order to continue practicing medicine, including refraining from the use of alcohol and controlled substances without a prescription and submitting to substance use monitoring by Massachusetts Physician Health Services (PHS). The letter of agreement provided that violating its terms would “constitute sufficient grounds for the immediate suspension of [Langan’s] license,” and that Langan had a right to an adjudicatory hearing as to any violation found by the board. After Langan entered into the letter of agreement, PHS reported three positive tests, at low levels, for ethyl glucuronide (EtG) and ethyl sulfate (EtS), two alcohol biomarkers. The board took no action at that time. In June and July, 2011, however, Langan tested positive for the same biomarkers, at higher levels.[1] As a result of these positive tests, PHS requested that Langan undergo an inpatient evaluation, and the board asked him to enter into a voluntary agreement not to practice pending completion of such an evaluation. Langan refused at first, causing the board to find him in violation of the letter of agreement. Langan then underwent the inpatient evaluation in September, 2011. On February 1, 2012, Langan, represented by counsel, signed an addendum to his letter of agreement requiring, in particular, that he “participate in a minimum of three (3) 12-step meetings per week” and “submit proof of said participation to PHS.” In October, 2012, PHS reported that Langan had misrepresented attending meetings. In November, 2012, Langan again tested positive for EtS and EtG. Langan entered into a voluntary agreement not to practice and was asked to produce documentation that he had attended all required meetings. He did not do so, and in February, 2013, the board determined, based […]
Chamberland v. Arbella Mutual Insurance Company (Lawyers Weekly No. 11-077-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-861 Appeals Court HEATHER CHAMBERLAND vs. ARBELLA MUTUAL INSURANCE COMPANY. No. 16-P-861. Bristol. February 1, 2017. – June 9, 2017. Present: Carhart, Massing, & Henry, JJ.[1] Insurance, Underinsured motorist, Arbitration. Contract, Insurance, Arbitration. Waiver. Collateral Estoppel. Judgment, Preclusive effect. Arbitration. Practice, Civil, Summary judgment, Waiver. Civil action commenced in the Superior Court Department on March 4, 2015. The case was heard by Robert J. Kane, J., on motions for summary judgment. Peter E. Heppner (Andrew Hart Lynch also present) for the defendant. Ronald J. Resmini for the plaintiff. HENRY, J. This case highlights the intricacies of the framework for underinsured motorist claims in Massachusetts, which provides that the insured and the insurer must either agree on the resolution of the claim or arbitrate. The plaintiff, Heather Chamberland, pursued a lengthy civil action against the other driver involved in the underlying accident and obtained a large judgment and eventually a settlement in the amount of that driver’s policy limits. Her underinsurance carrier, Arbella Mutual Insurance Company, was not a party to that action, though it consented to the settlement. Chamberland then sought underinsured motorist coverage from Arbella, which invoked arbitration. On cross motions for summary judgment, a Superior Court judge held that Arbella’s invocation of arbitration was untimely, and thus Arbella had waived its right to arbitrate. The motion judge further held that, as a result of the damages award that Chamberland had secured against the other driver at trial, Arbella was collaterally estopped from contesting issues of liability and damages in connection with Chamberland’s underinsurance claim. Arbella appealed. We reverse because, notwithstanding the significant amount of time that passed before Arbella’s demand for arbitration, Arbella did not act inconsistently with its statutory and policy-based right to arbitrate. As such, there is no basis for a finding of waiver of that right. Background. The following undisputed facts are drawn from the summary judgment record. On July 16, 2007, Chamberland was injured in an accident while operating a motor vehicle insured under a policy issued by Arbella. The other vehicle involved in the accident was operated by Dylon Maiorano and insured under a policy issued by Liberty Mutual Insurance Company. Arbella was notified of the accident, and by October 3, 2007, confirmed in writing that Chamberland’s underinsurance (part […]