Commonwealth v. Brown (Lawyers Weekly No. 10-042-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; SJCReportersjc.state.ma.us SJC-12313 COMMONWEALTH vs. JOHNELLE M. BROWN. Middlesex. November 7, 2017. – March 16, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Assault and Battery. Intimidation of Witness. Witness, Intimidation. District Court, Jurisdiction. Practice, Criminal, New trial, Assistance of counsel, Instructions to jury, Sentence, Allocution, Restitution. Restitution. Complaint received and sworn to in the Cambridge Division of the District Court Department on May 2, 2014. The case was tried before Michele B. Hogan, J.; a restitution hearing was held before Daniel C. Crane, J.; and a motion for postconviction relief was heard by Hogan, J. The Supreme Judicial Court granted an application for direct appellate review. Luke Rosseel for the defendant. Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth. CYPHER, J. A jury in the District Court convicted the defendant, Johnelle M. Brown, of assault and battery and witness intimidation. After beginning the sentencing hearing, the trial judge revoked the defendant’s bail and delayed sentencing for four days. After reconvening, the judge imposed a sentence of a one-year commitment to a house of correction, suspended for two years, probation, and restitution. The defendant disputes the District Court’s jurisdiction over the witness intimidation prosecution. The defendant also appeals from the denial of her motion for a new trial, revocation of bail, and order of payment of restitution. We affirm. Facts. We recite the facts as the jury could have found them, reserving certain facts for later discussion. Mahboobe Aria and Mehdi Aria[1] managed a restaurant. On April 6, 2014, the restaurant closed at 2:30 A.M. At approximately 2:40 A.M., Mahboobe and Mehdi were completing tasks relevant to closing the restaurant. Mehdi was outside, cleaning the outdoor seating. Mahboobe was inside. The defendant and a man arrived in an automobile and parked outside the restaurant. The man was not identified by name at trial, but the defendant’s motion for a new trial, appellate brief, and affidavits identify this man as Tyrell Carr. Carr remained in the automobile while the defendant went into the restaurant. Mahboobe was near the cash register when the defendant walked into the restaurant. Mahboobe told the defendant that the restaurant was closed. The defendant said that she needed to use the bathroom. Mahboobe refused to allow the defendant to […]
Boston Restoration Resources, Inc. v. Pitts, et al. (Lawyers Weekly No. 09-026-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT 17-1142-C BOSTON RESTORATION RESOURCES, INC. v. LORENZO PITTS, INCORPORATED, WILLETTA PITTS-GIVENS, REBECCA MAUTNER, LESLIE BOS, and JAMAICA PLAIN NEIGHBORHOOD DEVELOPMENT CORPORATION MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION TO QUASH DEPOSITION SUBPOENA TO KEEPER OF RECORDS OF UNITED HOUSING MANAGEMENT, LLC Plaintiff Boston Restoration Resources, Inc. (“BRI”) has brought a Rule 45(d) motion to quash a document subpoena served on non-party United Housing Management, LLC. The thrust of BRI’s motion is that the subpoena is unreasonably over-broad and burdensome, and seeks documents relevant only to a previously asserted theory of damages it has since abandoned. United Housing Management has to date defied the subpoena served upon it, but has not joined this motion. Mass. R. Civ. P. 45(f)(3) provides that “[a]ny person subject to a subpoena under this rule may move the court (A) for a protective order under rule 26(c) or (B) to be deemed entitled to any protection set forth in any discovery or procedural order previously entered in the case.” Inasmuch as BRI is not “the person subject to subpoena” under Rule 45, and does not maintain that production of the documents sought thereby would invade any legal right or privilege it has in the same, it lacks standing to assert objections on behalf of United Housing Management. See In re Stone & Webster Securities Litigation, 2006 WL 2818489, at *2-3 (D. Mass. 2006) (a party has no standing to object to a subpoena directed to a non-party); Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975) (“In the absence of a claim of privilege a party usually does not have standing to object to a subpoena addressed to a non-party witness.”). See generally P. Lauriat et al., Discovery, 49A Mass. Practice _ 8:23, at 289 and n.21 (3d ed. 2017) (“In general a party has no standing to assert objections to a subpoena on behalf of a non-party.”). It is true, as BRI points out, that “[a] party has standing to quash a subpoena served on a non-party if he or she has a personal right or privilege with respect to the requested information.” Enargy Power (Shenzhen) Co. Ltd. v. Xiaolong Wang, 2014 WL 2048416, at *2 n.4 (D. Mass. May 6, 2014). See also P. Lauriat, supra, 49A Mass. Practice _ 8:23, at 289 (“A party may assert objections as to a subpoena served on a non-party … where the objections relate to rights of that party rather than the non-party.”). This is not the case in BRI’s present motion. BRI […]
In the Matter of E.C. (Lawyers Weekly No. 10-039-18)
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; SJCReportersjc.state.ma.us SJC-12230 IN THE MATTER OF E.C. Plymouth. November 9, 2017. – March 15, 2018. Present: Gants, C.J., Gaziano, Lowy, & Budd, JJ. Incompetent Person, Commitment. Practice, Civil, Civil commitment. Petition for civil commitment filed in the Brockton Division of the District Court Department on March 4, 2013. The case was heard by Beverly J. Cannone, J., and a motion for reconsideration was also heard by her. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Beth L. Eisenberg for E.C. Edward J. O’Donnell for Bridgewater State Hospital. Lester D. Blumberg, for Department of Mental Health, amicus curiae, submitted a brief. GAZIANO, J. In this appeal, we consider whether the dismissal of the criminal charge pending against the respondent, E.C., required his release from commitment to Bridgewater State Hospital (Bridgewater), where the charge was dismissed after the period of commitment had expired, and a petition to extend the commitment had yet to be decided. E.C. was charged in the Boston Municipal Court Department with malicious destruction of property. Following a hearing pursuant to G. L. c. 123, § 16 (b), a judge of that court found E.C. not competent to stand trial and ordered him committed to Bridgewater for a period of six months. After that period had expired, Bridgewater filed a petition in the District Court Department to extend the commitment for an additional period of one year, pursuant to G. L. c. 123, § 16 (c). While the petition for an extension was pending, the criminal charge against E.C. was dismissed. Bridgewater moved to file an amended petition to modify its pending G. L. c. 123, § 16 (c), petition to a petition for civil commitment pursuant to G. L. c. 123, §§ 7 and 8. E.C. opposed the motion and argued that Bridgewater was required to release him because the criminal charge had been dismissed. A District Court judge concluded that Bridgewater had no authority to hold E.C. pursuant to G. L. c. 123, § 16 (c), after the criminal charge had been dismissed and his original commitment had expired; denied Bridgewater’s petition to amend; and ordered E.C. discharged.[1] The Appellate Division of the District Court affirmed that judgment, and the Appeals Court reversed. See Matter of E.C., 89 Mass. App. Ct. 813 (2016). We allowed E.C.’s application for further appellate review. We conclude […]
Commonwealth v. Wright (Lawyers Weekly No. 10-040-18)
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; SJCReportersjc.state.ma.us SJC-11950 COMMONWEALTH vs. JOSEPH WRIGHT. Essex. November 10, 2017. – March 15, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ. Homicide. Constitutional Law, Admissions and confessions, Voluntariness of statement. Evidence, Admissions and confessions, Voluntariness of statement, Expert opinion, Exculpatory, Intoxication. Mental Impairment. Intoxication. Practice, Criminal, Capital case, Admissions and confessions, Voluntariness of statement, Discovery, Assistance of counsel, Preservation of evidence. Witness, Expert. Indictments found and returned in the Superior Court Department on June 28, 2012. A pretrial motion to suppress evidence was heard by Richard E. Welch, III, J., and the cases were tried before Howard J. Whitehead, J. David H. Mirsky (Joanne T. Petito also present) for the defendant. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth. CYPHER, J. The defendant, Joseph Wright, appeals from two convictions of murder in the first degree. He urges the reversal of his convictions on four grounds. First, he contends that the pretrial motion judge erroneously denied his motion to suppress statements he made to Canadian law enforcement officers. Second, he argues that the trial judge committed a reversible error in ordering the pretrial disclosure of the defendant’s mental health expert’s report regarding the defendant’s mental condition at the time of the crimes, which the prosecution had in its possession during its subsequent cross-examination of the defendant. Third, the defendant argues that the evidence at trial demonstrates his lack of criminal responsibility for the murders, and relatedly, that his trial counsel’s failure to argue a lack of criminal responsibility defense before the jury constitutes ineffective assistance of counsel. Fourth, he argues that State police investigators failed to collect certain evidence relevant to his intoxication at the time of the crimes, thereby denying the defendant his right to a “complete defense.” Having considered the defendant’s arguments, and, more broadly, “the whole case on the law and the facts” pursuant to our duty under G. L. c. 278, § 33E, Commonwealth v. Howard, 469 Mass. 721, 747 (2014), we affirm the convictions. Factual and procedural background. We recite the facts the jury could have found in the light most favorable to the Commonwealth, but we reserve certain details of the facts and proceedings for discussion of the individual issues. The defendant does not dispute that he killed […]
Cedar-Fieldstone Marketplace, LP v. T.S. Fitness, Inc., et al. (Lawyers Weekly No. 11-030-18)
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 17-P-791 Appeals Court CEDAR-FIELDSTONE MARKETPLACE, LP vs. T.S. FITNESS, INC.,[1] & another.[2] No. 17-P-791. Bristol. February 2, 2018. – March 15, 2018. Present: Milkey, Massing, & Shin, JJ. Guaranty. Contract, Lease of real estate, Release from liability, To guarantee rent payments. Release. Real Property, Lease. Civil action commenced in the Superior Court Department on June 18, 2015. The case was heard by Renee P. Dupuis, J., on motions for summary judgment. John A. Walsh for the defendants. John F. White, Jr., for the plaintiff. MILKEY, J. In this case, we consider whether the release of a landlord’s claims against a tenant for unpaid rent pursuant to a lease precluded the landlord from bringing a collection action against a guarantor of the lease. We conclude that it did not. Background. The defendant T.S. Fitness, Inc. (tenant), rented commercial property in New Bedford from the plaintiff, Cedar-Fieldstone Marketplace, LP (landlord). In 2011, those parties agreed to a modification of the then-existing lease between them. To secure the tenant’s payment obligations under the modified lease, the tenant’s president, the defendant Thomas W. Sheridan, executed a personal guaranty, which was memorialized in a detailed, three-page document. Under the terms of the guaranty, Sheridan’s liability was “co-extensive with that of [the t]enant,” except that it was capped at a specified amount, $ 52,271.06. The existence of that cap appears to explain why the document is captioned a limited guaranty. Except for the cap on his liability, Sheridan’s obligations under the guaranty are set forth expansively, as we will review in detail later. The guaranty states that “[n]o waiver or modification of any provision of this [g]uaranty nor any termination of the [g]uaranty shall be effective unless in writing, signed by [the l]andlord.” After the lease modification, the tenant subsequently defaulted on the lease, prompting the landlord to bring a summary process action against it in District Court. That action was resolved through an agreement for judgment in February of 2013. The parties to the agreement for judgment were the parties to the summary process action, that is, the landlord and the tenant. Sheridan himself signed the agreement for judgment, but he did so in his capacity as president of the tenant. The essence of the agreement for judgment was […]
Categories: News Tags: 1103018, CedarFieldstone, Fitness, Inc., Lawyers, Marketplace, T.S., Weekly
Commonwealth v. Gonzalez (Lawyers Weekly No. 11-028-18)
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-1035 Appeals Court COMMONWEALTH vs. RADHAMES GONZALEZ. No. 16-P-1035. Middlesex. September 12, 2017. – March 12, 2018. Present: Rubin, Neyman, & Henry, JJ. Controlled Substances. Firearms. Practice, Criminal, Motion to suppress, Confrontation of witnesses. Constitutional Law, Search and seizure, Investigatory stop, Reasonable suspicion, Confrontation of witnesses. Search and Seizure, Motor vehicle, Reasonable suspicion, Threshold police inquiry. Threshold Police Inquiry. Motor Vehicle, Firearms. Witness, Expert. Evidence, Expert opinion, Scientific test. Indictments found and returned in the Superior Court Department on October 31, 2013. A pretrial motion to suppress evidence was heard by Thomas P. Billings, J., and the cases were tried before him. Steven J. Rappaport for the defendant. Clarence H. Brown, Assistant District Attorney, for the Commonwealth. HENRY, J. After a jury trial in Superior Court, the defendant, Radhames Gonzalez, was convicted of possession of cocaine with intent to distribute, carrying a firearm without a license, possession of ammunition without a firearm identification card, possession of a large capacity feeding device, and possession of a large capacity weapon during the commission of a felony.[1] The defendant argues that (1) his motion to suppress should have been allowed because the information supplied by a confidential informant (CI) did not justify the investigatory stop of his motor vehicle; and (2) the admission in evidence of a substitute chemist’s testimony deprived the defendant of his right to “confront” the witness. We affirm. Background. We set forth the facts as found by the motion judge, supplemented where necessary with uncontroverted evidence drawn from the record of the suppression hearing. See Commonwealth v. Watson, 430 Mass. 725, 726 n.5 (2000). Sergeant William West of the Billerica police department testified that he had been a patrol sergeant for two years, and that he had formerly been a detective in the criminal bureau for sixteen years. As a detective, he had investigated all types of crimes including narcotics offenses and had worked with informants “no less than a hundred times.” In June, 2013, about one year after he had become a sergeant, West was contacted by a CI with whom West had worked on more than one occasion when he was a detective. On this occasion, the CI provided a description of a man who went by the name of “Eddie,” later identified as the […]
Commonwealth v. Fredericq (Lawyers Weekly No. 11-029-18)
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-1542 Appeals Court COMMONWEALTH vs. Stanley Fredericq.[1] No. 16-P-1542. Plymouth. December 1, 2017. – March 12, 2018. Present: Agnes, Blake, & McDonough, JJ. Cellular Telephone. Controlled Substances. Constitutional Law, Search and seizure, Standing, Privacy, Probable cause. Search and Seizure, Consent, Expectation of privacy, Fruits of illegal search, Multiple occupancy building, Probable cause, Warrant. Privacy. Probable Cause. Consent. Evidence, Result of illegal search, Business record. Practice, Criminal, Motion to suppress, Standing, Warrant. Indictments found and returned in the Superior Court Department on August 22, 2008. A pretrial motion to suppress evidence was heard by Thomas J. McGuire, Jr., J. An application for leave to prosecute an interlocutory appeal was allowed by Barbara A. Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Nathaniel Kennedy, Assistant District Attorney, for the Commonwealth. Jason Benzaken for the defendant. BLAKE, J. As a result of information gathered in connection with a homicide, an interstate narcotics investigation began, which led police to discover cocaine and cash at 220-222 Howard Street in the city of Brockton.[2] This is an interlocutory appeal by the Commonwealth from the order allowing the defendant’s motion to suppress evidence obtained as a result of a warrantless search. We reverse in part and affirm in part. We set forth detailed facts and the procedural history of this case as they are necessary to the analysis. The defendant was indicted for trafficking in two hundred grams or more of cocaine. He has twice filed motions to suppress. In his first motion, the defendant argued that the search at 220 Howard Street was conducted without a warrant and without his consent. After a two-day evidentiary hearing, the first motion judge denied the motion on grounds that the defendant consented to the search. In the defendant’s second, or so-called “amended” motion to suppress, he argued that the evidence seized from 220 Howard Street must be suppressed as the tainted fruit of the unlawfully obtained cellular site location information (CSLI).[3] The same judge denied the motion after a nonevidentiary hearing and the defendant sought interlocutory review. A single justice of the Supreme Judicial Court, while retaining jurisdiction of the case, ordered an evidentiary hearing on the motion. After […]
Bassett, et al. v. Triton Technologies, Inc., et al. (Lawyers Weekly No. 09-022-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 16-3475 BLS 2 LAURA BASSETT, JAMIE ZELINSKAS, ALYSSA WRIGHT, and ALEXIS CRAMER, individually and on behalf of all others similarly situated Plaintiffs vs. TRITON TECHNOLOGIES, INC., S. JAY NALLI, and ANDREW S. BANK, Defendants MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT AS TO COUNT III OF THE COMPLAINT This class action raises the novel question of whether a call-in center where defendant’s employees take orders for goods sold by others is a “store or shop” engaged in the “sale at retail of goods” such that the employees must be paid time and half for work on Sundays. See G.L.c. 136 §6(50). This Court concludes that it is not. As a consequence, the defendants are entitled to summary judgment in their favor on Count III of the Complaint, which alleges that the failure to pay for Sunday work violates the Massachusetts Wage Act, G.L.c. 149 §§148 and 150. BACKGROUND The following facts are not in dispute. The defendant Triton Technologies, Inc. (Triton) is a Massachusetts corporation that operates a call in center in Mansfield. It provides “teleservices” to various companies located throughout the country (Triton’s “Clients”) which produce goods ranging from exercise videos to garden tools. Triton is not involved in the manufacture, design, production or shipping of any of its Clients’ goods. There is no evidence that it stores or at any time takes possession of its Clients’ inventory or that any Client goods are available for purchase at any of its locations, including the Mansfield call center. Typically, customers interested in a Client product reach Triton (or another call center elsewhere in the country) after calling a toll free number that appears on an advertisement for the goods that appears in a variety of media, including television and the internet. That advertising is paid for by the Client. Calls are routed to a Triton employee – called an “Inbound Sales Agent” – who works from a script developed by the Client. The Sales Agents sit at assigned workstations within the call center, which is not open to the public. The Sales Agent takes the caller’s order and payment information, all of which is transmitted to the Client for processing. The Client ships the product directly to the customer. Triton does not receive money from the sales and does not collect sales tax on the goods sold. It does not pay any sale taxes. The Mansfield call center operates 24 hours a day, 365 days per year. Triton’s Sales Agents are scheduled to work based on call volume demand. The Sales Agents are paid an […]
Caplan, et al. v. Town of Acton (Lawyers Weekly No. 10-038-18)
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-12274 GEORGE CAPLAN & others[1] vs. TOWN OF ACTON. Middlesex. September 7, 2017. – March 9, 2018. Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ. Constitutional Law, “Anti-aid” amendment. Massachusetts Community Preservation Act. Historic Preservation. Church. Civil action commenced in the Superior Court Department on July 7, 2016. A motion for a preliminary injunction was heard by Leila R. Kern, J. The Supreme Judicial Court granted an application for direct appellate review. Douglas B. Mishkin, of the District of Columbia (Joshua Counts Cumby & Alex Luchenitser, of the District of Columbia, & Russell S. Chernin also present) for the plaintiffs. Nina L. Pickering-Cook (Arthur P. Kreiger also present) for the defendant. The following submitted briefs for amici curiae: Daniel Mach, of the District of Columbia, Anthony M. Doniger, Kate R. Cook, & Sarah R. Wunsch for American Civil Liberties Union & another. Maura Healey, Attorney General, David C. Kravitz, Assistant State Solicitor, & Matthew P. Landry, Assistant Attorney General, for the Attorney General. Eric C. Rassbach, of the District of Columbia, Joseph C. Davis, of Louisiana, Daniel D. Benson, of Utah, & Mark L. Rienzi for Becket Fund for Religious Liberty. Thomas A. Mullen for Massachusetts Municipal Law Association & another. Thaddeus A. Heuer & Andrew London for National Trust for Historic Preservation. Ryan P. McManus & M. Patrick Moore for Boston Preservation Alliance & others. GANTS, C.J. Article 18 of the Amendments to the Massachusetts Constitution, as amended by arts. 46 and 103 of the Amendments, known as the “anti-aid amendment,” prohibits in § 2, cl. 2, the “grant, appropriation or use of public money . . . for the purpose of founding, maintaining or aiding any church, religious denomination or society.” This case presents the question whether two grants of public funds to renovate an active church that has been identified as a “historic resource” under the Community Preservation Act (act), G. L. c. 44B, are categorically barred by the anti-aid amendment, or whether the constitutionality of such grants must be evaluated under the three-factor test we have applied under Commonwealth v. School Comm. of Springfield, 382 Mass. 665, 675 (1981) (Springfield), to payments made to other private institutions. Also presented is the follow-up question: if the three-factor test applies, do the grants […]
North American Catholic Educational Programming Foundation, Inc., et al. v. Clearwire Spectrum Holdings II LLC, et al. (Lawyers Weekly No. 09-023-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 15-3118 BLS 2 NORTH AMERICAN CATHOLIC EDUCATIONAL PROGRAMMING FOUNDATION, INC. et al.[1] Plaintiffs vs. CLEARWIRE SPECTRUM HOLDINGS II LLC, CLEARWIRE LEGACY LLC and SPRINT SPECTRUM, L.P., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO STAY ACTION Plaintiffs are non-profit entities that hold licenses from the Federal Communications Commission (FCC) to operate Educational Broadband Services (EBS) channels in certain geographic markets. In 2006, plaintiffs granted access to a portion of their wireless communication spectrum to defendants Clearwire Spectrum Holdings LLC and Clearwire, Legacy, LLC (Clearwire) pursuant to various written Agreements, including Master Royalty and Use Agreements (MRUAs). The defendant Sprint Spectrum L.P. (Sprint) subsequently acquired all the stock in Clearwire’s parent, and a dispute arose between Sprint and the plaintiffs as to what services Sprint was obligated to provide plaintiffs’ customers. Plaintiffs took the position that Clearwire had effectively sublicensed its use of the broadband spectrum to Sprint, and that, pursuant to the Agreements, this required plaintiffs’ consent – consent which they were entitled to withhold unless Sprint agreed to provide broadband access to plaintiff’s customers that was equivalent to what Clearwire itself would have provided had there been no sublicense. Plaintiffs filed this lawsuit in October 2015 seeking equitable relief and specific performance. In November 2015, this Court allowed plaintiffs’ Motion for a Preliminary Injunction, concluding that plaintiffs had demonstrated a substantial likelihood of prevailing on the merits. The injunction among other things required defendants to maintain Cost Free Educational Accounts (CFEAs) that entitle plaintiffs’ customers to access the Clearwire broadband network free of charge. On June 24, 2016, this Court allowed plaintiffs’ Motion for Partial Summary Judgment as to Count One of the Complaint, which focused on the single issue of consent. After some period of negotiation seeking a global resolution, two of the six plaintiffs in the instant action filed arbitration claims seeking damages, the MRUAs requiring them to pursue any monetary remedy in that forum. Defendants now move to stay this action until the arbitration is concluded. This Court concludes that this Motion must be DENIED. In support of the motion, defendants cite the broad arbitration provision in the MRUAs and argue that under the Federal Arbitration Act, it would be an abuse of discretion not to stay the instant action because the claims its raises substantially overlap with those issues being presented to a three member arbitration panel. A stay is appropriate, they argue, in order to avoid duplicative discovery and the risk of inconsistent results. In response, the plaintiffs contend that there is no overlap between the claims that they assert […]
Categories: News Tags: 0902318, American, Catholic, Clearwire, Educational, Foundation, Holdings, Inc., Lawyers, North, Programming, Spectrum, Weekly