Posts tagged "Civil"

In Re Civil Investigative Demand No. 2016-CPD-50 (Lawyers Weekly No. 12-149-16)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
No. 2016-2098 BLS 1
IN RE CIVIL INVESTIGATIVE DEMAND NO. 2016-CPD-50, ISSUED BY THE
OFFICE OF THE ATTORNEY GENERAL
ORDER ON MOTION OF GLOCK, INC. TO SET ASIDE OR MODIFY THE CIVIL
INVESTIGATIVE DEMAND OR ISSUE A PROTECTIVE ORDER
Glock, Inc., a manufacturer of pistols, commenced this action to set aside a Civil
Investigative Demand (“CID”) issued by the Attorney General to Glock on May 26, 2016. In the
alternative to a complete quashing of the CID, Glock requests that a protective order issue
limiting the information that must be produced pursuant to the CID. As described below, Glock’s
motion to set aside the CID is denied. Action on the motion for a protective order is deferred, as
the parties are ordered to meet and confer regarding the scope of discovery guided by the general
principles governing CID discovery, discussed herein.
BACKGROUND
The CID was issued to Glock pursuant to G.L. c. 93A, § 6. The CID recites that it is
issued as “part of a pending investigation by the Office of the Attorney General into compliance
with G.L. c. 93A, as well as related Massachusetts laws, regulations and common law
requirements that impact gun safety and product warranties.” The CID requires production of
documents from Glock pursuant to G.L. c. 93A, § 6 (1). The requests for documents are detailed
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in twelve separate paragraphs. The general nature of the documents requested include customer
complaints about safety, the company’s responses, product recalls, warranties, testing,
specifications, authorized dealers and legal actions and settlements. There is no geographic
limitation to the scope of documents that must be produced. The relevant time period for
documents that must be produced is four years prior to the date of the CID.
Upon receipt of the CID, Glock, through counsel, began communications with the Office
of the Attorney General. According to Glock’s complaint (styled as a “petition”), the Attorney
General agreed to an extension of the twenty-one day period allowed by statute for a recipient of
a CID to move or object to the CID, to July 1, 2016. On July 1, 2016, having failed to reach an
agreement with the Attorney General regarding the validity and scope of the CID, Glock filed its
complaint along with an emergency motion to set aside or modify the CID. The emergency
motion was denied, without prejudice to re-filing pursuant to Rule 9A of the Superior Court. On
August 11, 2016, Glock served its renewed motion to set aside or modify the CID on the
Attorney General. On September 15, 2016, the parties’ Rule 9A package was filed in this action.
Oral argument was heard on October 19, 2016.1
In its motion, Glock asserts that it does not sell its pistols directly to consumers in
Massachusetts as that term is used in 940 Code of Massachusetts Regulations (“CMR”) §§ 16.00,
et seq. Glock says it made the determination to forego the consumer market in Massachusetts
after October 1998, when the Attorney General promulgated regulations stating it to be an unfair
1 The Attorney General in her opposition to Glock’s motion does not dispute the
agreement to extend the time to July 1, 2016, for Glock to move in opposition to the CID. The
Attorney General makes no argument that Glock failed to comply with the requirements of G.L.
c. 93A, § 6 (7) for asserting a timely motion to quash or modify the CID. Accordingly, the timing
issue is waived.
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and deceptive practice for a “handgun-purveyor” to “transfer” a handgun to a consumer that,
among other things, is non-compliant with the Attorney General’s regulations (940 CMR § 16.05
(3)) requiring a “load indicator” or a “magazine disconnect” as a safety feature. Glock’s
handguns, to this date, do not comply with the regulations requiring a “load indicator” or a
“magazine disconnect.”
Glock does, nevertheless, sell its pistols to Massachusetts law enforcement agencies and
military personnel. Such sales are outside the definition of “handgun-purveyor” that invokes the
requirements of § 16.05. Glock also sells its pistols to business entities in Massachusetts that are
primarily firearm wholesalers, so long as any sale, by its terms, prohibits the purchaser from
reselling to a handgun retailer or consumer in Massachusetts. Such sales are allowed under the
definition of “transfer” in 940 CMR §16.01.
The Attorney General submits an affidavit of one of its investigators who has reviewed
and analyzed data for all gun sales transactions in the Commonwealth. By law, a database is
maintained of all firearm sales by gun dealers as well as private transfers. The analysis indicated
that there were approximately 10,800 Glock handgun sales in Massachusetts between January 1,
2014 and August 13, 2015. Approximately 8,000 of those transactions were sales to individuals
with an occupation other than law enforcement, or to persons who had no occupation listed. The
investigator also described his knowledge of safety issues reported regarding Glock handguns
including the risk of accidental discharge as a result of a short trigger pull, lack of a load
indicator and lack of an external safety.
ANALYSIS
General Laws c. 93A, § 6 (1) authorizes the Attorney General to obtain and examine
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documents “whenever he believes a person has engaged in or is engaging in any method, act or
practice declared to be unlawful by this chapter.” Among the things declared to be unlawful by
c. 93A are unfair and deceptive acts or practices in the conduct of any trade or commerce. G.L. c.
93A, § 2 (a). It is well established that putting a product into the stream of commerce to
ultimately reach a user may be an unfair and deceptive act under c. 93A if the product is
defective, unsafe or not as warranted. Vassallo v. Baxter Healthcare Corporation, 428 Mass. 1,
23 (1998); Aspinall v. Philip Morris Companies, Inc., 442 Mass. 381, 397 (2004). Specifically
with respect to firearms, the Supreme Judicial Court has held that the Attorney General has
authority under c. 93A “to prevent the deceptive or unfair sale or transfer of defective products
which do not perform as warranted.” American Shooting Sports Council, Inc. v. Attorney
General, 429 Mass. 871, 875 (1999).
As a result, the Attorney General may issue a CID in connection with an investigation of
the safety of a product that is purchased in Massachusetts. Section 6 of c. 93A grants the
Attorney General broad investigatory powers. “There is no requirement that the Attorney General
have probable cause to believe that a violation of G.L. c. 93A has occurred. He need only have a
belief that a person has engaged or is engaging in conduct declared to be unlawful by G.L. c.
93A.” CUNA Mutual Insurance Society v. Attorney General, 380 Mass. 539, 542 n. 5 (1980).
There is no requirement to disclose the name of the person being investigated and the CID may
be issued to a person who is not the target of the investigation. Id. at 542 – 543. The statute, § 6
(1) of c. 93A, “should be construed liberally in favor of the government.” In the Matter of a Civil
Investigative Demand Addressed to Yankee Milk, Inc., 372 Mass. 353, 364 (1977).
Glock, as the party moving to set aside the CID, bears a heavy burden to show good cause
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why it should not be compelled to respond. G. L. C. 93A, § 6 (7); CUNA Mutual, 380 Mass. at
544. “[T]he recipient who challenges the CID bears the burden of showing that the Attorney
General acted arbitrarily or capriciously in issuing the demand.”Attorney General v. Bodimetric
Profiles, 404 Mass. 152, 157 (1989).
Glock’s Motion to Set Aside the CID
Glock contends that the Attorney General has no authority to issue the CID because
Glock does not sell its pistols directly to consumers in Massachusetts. Even Glock recognizes,
however, that its contention is overstated. Glock concedes that the Attorney General has the
authority to investigate whether there have been improper sales by Glock, or others, of Glock
pistols directly to consumers in the Commonwealth, in violation of 940 CMR §16.05.2
Glock’s contention is even more fundamentally flawed. Glock does not dispute that there
were eight to ten thousand sales of its pistols in Massachusetts in a twenty month period ending
in August 2015. It may be concluded that there are thousands of Glock pistols throughout the
Commonwealth, some of which are owned by law enforcement and many of which are owned by
civilian consumers. Regardless of who owns the pistols, if the pistols are unsafe, defective, or
breach a warranty of merchantability, there may be a c.93A violation by Glock, the manufacturer
who put the product into the stream of commerce.3 Because the Attorney General has authority to
investigate such potential violations of c. 93A, the CID is authorized.
Finally, I address Glock’s allegations throughout its papers that the Attorney General is
2 Glock also argues that the CID fails to meet the specificity requirements of G.L. c. 93A,
§ 6 (4). A review of the CID shows otherwise. Glock’s argument is rejected.
3 At oral argument, counsel for Glock conceded that the company could be sued in
Massachusetts by a gun owner asserting a product liability claim.
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acting based on political motives or animus towards guns, so that the court should find that the
CID is invalid for being arbitrary and capricious. Glock wholly fails to satisfy its burden in this
regard. As described above, the Attorney General has good and sufficient grounds to issue the
CID based on safety and other concerns about Glock pistols owned throughout the
Commonwealth. There is no evidence that Glock is being singled out for persecution or
harassment.
Glock’s motion to set aside the CID is denied.
Glock’s Motion to Modify the CID
Glock motion to modify the CID attacks each and every one of the twelve requests as
being “unreasonable or improper” under G.L. c. 93A, § 6 (5). That section states that a CID shall
not contain any requirement to produce that would be unreasonable or improper if contained in a
subpoena duces tecum issued by a court or would require the disclosure of documents that are
protected by a recognized privilege. In response, the Attorney General argues that it is premature
to delve into relevancy, burdensomeness and privilege objections because the parties have not
had a meaningful opportunity (as a result of Glock’s position that the CID should be set aside in
toto) to “meet and confer” regarding the scope of the requests. The Attorney General expresses a
willingness to listen and consider Glock’s concerns.
The following are general principles regarding the scope of discovery. General Laws c.
93A, § 6 (1) (b) establishes a relevance test to define the documents the Attorney General may
examine pursuant to a valid investigation. Matter of Yankee Milk, 372 Mass. at 357. As in all
discovery matters, a broad area of discretion resides in the court to determine relevance. Id. at
356. “[E]ffective investigation requires broad access to sources of information. . . .” Id. at 364. In
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Matter of Yankee Milk, the Court reversed a restriction of a CID to only Massachusetts connected
documents, holding that documents located and pertaining to other states were within the scope
of relevance. Id. at 356 -357. With respect to documents that a company has agreed to keep
confidential, such as settlement papers and files, the analysis must start with the holding in
Attorney General v. Bodimetric Profiles, 404 Mass. 152 (1989). The Court held that “Bodimetric
may have agreed with others to keep certain information confidential but that agreement does not
bind the Attorney General.” Id. at 158. Finally, in order to raise a successful argument that the
burden of complying with a CID outweighs the Attorney General’s need for the documents,
Glock must show that producing the requested documents would “seriously interfere with the
functioning of the investigated party by placing excessive burdens on manpower or requiring
removal of critical records.” Id. at 159, quoting Matter of Yankee Milk, 372 Mass. at 361 n.8.
I have read and considered Glock’s objections to the numbered paragraphs of the CID. I
find that Glock’s objections based upon relevancy and lack of specificity are baseless. Whether
there should be some limitations put on the scope of documents requested based upon geography,
burdensomeness or confidentiality should be discussed between the parties in the type of good
faith “meet and confer” communication as required by Superior Court Rule 9C for the settlement
of discovery disputes. To allow time for such a resolution, I defer action on Glock’s motion for a
protective order. The parties shall be required to submit a written joint status report to the court
by November 21, 2016.
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CONCLUSION
Glock’s motion to set aside the CID is DENIED. Action on Glock’s motion for a
protective order as to each paragraph of the CID is deferred until after the parties meet and confer
to discuss possible agreement on the scope of discovery. The parties are ORDERED to submit a
joint status report to the court by no later than November 21, 2016.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
Date: October 28, 2016
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Posted by Stephen Sandberg - November 10, 2016 at 11:33 pm

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Thompson, et al. v. Civil Service Commission, et al. (and a companion case) (Lawyers Weekly No. 11-144-16)

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

15-P-330                                        Appeals Court

PRESTON THOMPSON & others[1]  vs.  CIVIL SERVICE COMMISSION & another[2] (and a companion case[3]).

No. 15-P-330.

Suffolk.     May 10, 2016. – October 7, 2016.

Present:  Cypher, Blake, & Henry, JJ.

Civil Service, Police, Termination of employment, Testing, Reinstatement of personnel, Decision of Civil Service Commission.  Labor, Police, Collective bargaining, Discharge.  Municipal Corporations, Police, Collective bargaining.  Police, Discharge, Collective bargaining.  Public Employment, Police, Collective bargaining, Termination, Reinstatement of personnel.  Administrative Law, Substantial evidence.  Damages, Back pay. read more

Posted by Stephen Sandberg - October 7, 2016 at 4:42 pm

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Skandha v. Clerk of the Superior Court for Civil Business in Suffolk County (Lawyers Weekly No. 10-168-15)

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-11811

BODHISATTVA SKANDHA  vs.  CLERK OF THE SUPERIOR COURT FOR CIVIL BUSINESS IN SUFFOLK COUNTY.

September 29, 2015.

Supreme Judicial Court, Superintendence of inferior courts.  Mandamus.  Practice, Civil, Action in nature of mandamus, Assembly of record.  Clerk of Court.

The petitioner, Bodhisattva Skandha, appeals from a judgment of a single justice of this court denying his petitions pursuant to G. L. c. 211, § 3, and for relief in the nature of mandamus pursuant to G. L. c. 249, § 5.  We affirm.

Background.  The petitions stem from Skandha’s effort to appeal from the dismissal of a complaint in the Superior Court that he and two other plaintiffs filed, in August, 2010, against the Committee for Public Counsel Services (CPCS) and several associated attorneys.  The plaintiffs claimed that CPCS and the attorneys had violated the plaintiffs’ due process rights by, among other things, failing to screen their new trial motions to determine whether they had any claims that would entitle them to relief from their respective convictions.  A judge in the Superior Court dismissed the complaint, in May, 2013, and it appears that Skandha timely filed a notice of appeal.[1]  The appeal was dismissed, however, in January, 2014, apparently on the basis that Skandha had failed to take the necessary steps to perfect it.[2] read more

Posted by Stephen Sandberg - September 29, 2015 at 7:35 pm

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City of Worcester v. Civil Service Commission (Lawyers Weekly No. 11-016-15)

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

12-P-1844                                       Appeals Court

CITY OF WORCESTER  vs.  CIVIL SERVICE COMMISSION & another.[1]

No. 12-P-1844.

Suffolk.     December 6, 2013. – February 26, 2015.

Present:  Fecteau, Sullivan, & Maldonado, JJ.

Practice, Civil, Review respecting civil service.  Civil Service, Police, Decision of Civil Service Commission, Termination of employment, Judicial review.  Administrative Law, Hearing, Judicial review.  Municipal Corporations, Police.  Police, Discharge.  Public Employment, Police, Termination.  Statute, Construction. read more

Posted by Stephen Sandberg - February 26, 2015 at 8:26 pm

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Mendonca v. Civil Service Commission, et al. (Lawyers Weekly No. 11-162-14)

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

13-P-1979                                       Appeals Court

Paul Mendonca  vs.  Civil Service Commission & another.[1]

No. 13-P-1979.

Suffolk.     September 15, 2014. – December 12, 2014.

Present:  Berry, Kafker, & Carhart, JJ.

Veteran.  Handicapped Persons.  Public Employment, Provisional employee, Termination, Reinstatement of personnel.  Civil Service, Termination of employment, Reinstatement of personnel.  Employment, Termination.  Administrative Law, Substantial evidence. read more

Posted by Stephen Sandberg - December 12, 2014 at 4:11 pm

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City of Springfield v. Civil Service Commission, et al. (Lawyers Weekly No. 10-142-14)

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-11540

CITY OF SPRINGFIELD  vs.  CIVIL SERVICE COMMISSION & another.[1]

Hampden.     April 8, 2014. – August 18, 2014.

Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[2]

Civil Service, Provisional promotion, Termination of employment, Notice.  Labor, Civil service.  Employment, Termination.  Jurisdiction, Civil Service Commission.  Administrative Law, Evidence.  Notice, Termination of employment, Administrative hearing.  Waiver.

Civil action commenced in the Superior Court Department on July 29, 2010. read more

Posted by Stephen Sandberg - August 18, 2014 at 8:16 pm

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