Cook v. Applause App Quality, Inc., et al. (Lawyers Weekly No. 09-007-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, so SUPERIOR COURT CIVIL ACTION NO. 2016-3293-BLS 2 WALTER COOK, Plaintiff vs. APPLAUSE APP QUALITY, INC., DORON REUVENI, and CHRISTOPHER MALONE, Defendants MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION In this putative class action, the plaintiff Walter Cook, individually and on behalf of others similarly situated, alleges violations of the Massachusetts Wage Act, G.L.c. 149 §149, 150, and the Massachusetts Minimum Fair Wage Act, G.L.c. 151 §§1A-1B. The Complaint was filed in October 2016 and, after an effort to settle the case through mediation, the parties proceeded with discovery. On August 10, 2017, the defendants requested extensions of various deadlines, to which the plaintiff assented. Under the revised tracking order, class-based discovery is to be complete by October 20, 2017, with a motion for class certification to follow. The case is now before the Court because the defendant Applause App Quality, Inc. (Applause) on September 8, 2017 sent a document to putative class members entitled “Option Cancellation Agreement.” The document was sent in connection with a proposed merger between Applause and another company, Vista Equity Partners. On page six of the ten-page, single spaced document is language purporting to release Applause from the claims asserted in the instant case. Plaintiff’s counsel had no advance notice of the merger, and learned of the Option Cancellation Agreement only when an employee of Applause contacted him about it. 2 On September 11, 2017, plaintiff filed an Emergency Motion for a Temporary Restraining Order challenging Applause’s communications with potential class members. Rather than proceeding on an ex parte basis, this Court scheduled a hearing for September 14, 2017. After hearing, the Court issued a Temporary Order which among things prohibited Applause from any further communications and required it to withdraw the Option Cancellation Agreement pending further hearing. That further hearing was held on September 21, 2017, at which time defendant moved to terminated the Temporary Order. Based on the reasons set forth herein, this Court now extends that earlier order as a Preliminary Injunction and DENIES the defendant’s Motion. LEGAL ANALYSIS Although the issues presented by this motion are new to this judge, the applicable legal principles are not. It has long been recognized that a court has inherent power to regulate and control the conduct of parties and their legal representatives if that is necessary to protect the integrity of the judicial process. Kevlik v. Goldstein, 724 F.2d 844, 847 (1st Cir. 1984) and cases cited therein. Where suit has been brought as a putative class action, that authority is made explicit in Rule 23(d), Mass. R.Civ. P., which states that the court may “impose such terms as shall fairly and adequately protect the […]
Wells Fargo Bank, N.A. v. Cook, et al. (Lawyers Weekly No. 11-051-15)
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 14-P-381 Appeals Court WELLS FARGO BANK, N.A. vs. NANCY B. COOK & another.[1] No. 14-P-381. Suffolk. January 7, 2015. – May 19, 2015. Present: Kafker, Meade, & Maldonado, JJ. Summary Process. Mortgage, Foreclosure, Acceleration clause. Real Property, Mortgage. Regulation. Practice, Civil, Summary judgment, Summary process. Summary Process. Complaint filed in the Boston Division of the Housing Court Department on August 6, 2012. The case was heard by MaryLou Muirhead, J., on motions for summary judgment. Julia E. Devanthery for the defendants. David E. Fialkow for the plaintiff. KAFKER, J. Nancy and Abena Cook appeal from the judgment entered in favor of Wells Fargo Bank, N.A. (Wells Fargo), in its postforeclosure summary process action against them in the Boston Housing Court. The Cooks contend that the judge erred in granting summary judgment for Wells Fargo on its claim for possession because (1) the judge should have considered the United States Department of Housing and Urban Development (HUD) Handbook No. 4330.1 REV-5, Administration of Insured Home Mortgages (1994) (HUD Handbook), as interpretive guidance to discern the meaning of the HUD regulations incorporated into the mortgage, and (2) the August 12, 2008, meeting Wells Fargo held at Gillette Stadium for defaulting mortgagors did not satisfy the procedural or substantive requirements set out in the HUD regulations at 24 C.F.R. § 203.604(b) (2008), as the Gillette Stadium event was untimely and did not provide for a face-to-face meeting with a representative of the lender authorized to negotiate modification of payment provisions. We conclude that the HUD Handbook should have been considered, that the meeting was untimely, and most importantly, that there are material disputed facts regarding whether the meeting satisfied the substantive face-to-face meeting requirements of the HUD regulations. Therefore, we vacate the judgment of the Boston Housing Court in favor of Wells Fargo.[2] 1. Background. The facts, construed in the light most favorable to the Cooks, are as follows. See DiPietro v. Sipex Corp., 69 Mass. App. Ct. 29, 30 (2007). In 1971, Nancy Cook purchased property at 38-40 Rosewood Street in Mattapan, and in 2006 became co-owner of the property with her daughter Abena Cook. In March, 2008, the Cooks refinanced the property with a loan from Fairfield Financial Mortgage Group, Inc. To secure the loan, the Cooks granted a mortgage, including […]
Cook v. Patient Edu, LLC, et al. (Lawyers Weekly No. 10-105-13)
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‑11272 PETER G. COOK vs. PATIENT EDU, LLC, & others.[1] Hampden. February 5, 2013. ‑ June 13, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Labor, Wages. Statute, Construction. Limited Liability Company. Civil action commenced in the Superior Court Department on September 10, 2010. A motion to dismiss was heard by Bertha D. Josephson , J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Keith A. Minoff for the plaintiff. Marwan S. Zubi for the defendant. The following submitted briefs for amici curiae: Shannon Liss-Riordan & Stephen S. Churchill for Massachusetts Employment Lawyers Association. Martha Coakley, Attorney General, & Karla E. Zarbo, Assistant Attorney General, for the Commonwealth. John Pagliaro & Martin J. Newhouse for New England Legal Foundation & another. David R. Kerrigan & Joseph P. Calandrelli for Massachusetts Defense Lawyers Association. DUFFLY, J. We consider in this case whether managers of a limited liability company (LLC) may be held individually liable under the Massachusetts Wage Act, G. L. c. 149, §§ 148, 150 (Wage Act), for unpaid wages due to an employee.[2] Peter G. Cook filed suit against the defendants, Patient Edu, LLC (Patient Edu), and two of its managers, Steven Graziano and Michael Schulman,[3] for failing to pay more than $ 68,000 in compensation he claimed was owed to him under an employment contract. Concluding that G. L. c. 149, § 148, does not, by its plain language, impose individual liability on the managers of an LLC, a Superior Court judge granted the motion to dismiss filed by Patient Edu and Graziano, pursuant to Mass. R. Civ. P. 12(b)(6), 365 Mass. 755 (1974), and dismissed count one of the complaint against Graziano and Shulman. Cook appealed from the dismissal and we transferred the case to this court on our own motion. We conclude that a manager who “controls, directs, and participates to a substantial degree in formulating and determining” the financial policy of a business entity, see Wiedmann v. The Bradford Group, Inc., 444 Mass. 698, 711 (2005), may be a “person having employees in his service” under G. L. c. 149, § 148, and thus may be subject to liability for violations of the Wage Act. Background. We review the allowance of a motion to dismiss de novo, accepting […]
11 South End Chefs to Cook at Fenway’s ‘Boston Bites Back’
Eleven South End chefs will join over 100 top chefs from the Greater Boston and Cambridge area to raise $ 1 million for The One Fund at Fenway Park on Wednesday night, through the culinary event Boston Bites Back. The event is spearheaded by celeb chefs Ken Oringer and Ming Tsai, the Boston Red Sox, Governor Patrick, Mayor Menino, and ARAMARK. The idea is to bring Bostonians together to eat, drink and demonstrate Boston’s unrelenting spirit, while raising money for the victims of the Boston Marathon bombing, according to organizers. “BBB is an opportunity for the city to join as one and acknowledge our strength as a community,” said Ken Oringer, owner of Clio, Toro, Copa & Uni. “Nothing speaks more to our collective resolve than an evening of hospitality, unity and hometown pride in one of the most iconic venues in Boston – Fenway Park.” The event also features an online auction with Boston-centric prizes like throwing out the first pitch at Fenway Park, meeting Bill Belichcik, and a special celebrity cookoff right in your own home. The event will be held from 6-10 p.m. at Fenway on Wednesday, May 15. General admission is $ 200, and VIP admission is $ 1,000 per ticket. List of South End Chefs participating: Ken Oringer – Toro, Coppa Gordon Hamersly – Hamersly’s Bistro Jamie Bissonette – Toro, Coppa Joanne Chang – Flour Bakery, Myers + Chang Andy Husbands – Tremont 647 Ting Yang – Oishii Evan Deluty – Stella Karen Akunowicz – Myers + Chang Justin Winters – Cinquecento Kevin O’Donnell – Salty Pig Jacky Robert – Petit Robert Bistro Who is your favorite South End chef on the list? Will you be attending the Boston Bites Back fundraiser at Fenway Park tonight? Tell us in the comments. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
Things to Know in the South End Today, April 10: Learn How to Cook with Gaslight Chef
1. Weather: The National Weather Service is predicting a rainy day with a high of 62 degrees. 2. Gaslight at West Elm: Fenway’s West Elm (160 Brookline Ave.) is hosting Gaslight’s Michael Zentner for a how-to lesson on two summer staples: Salad Nicoise and a French Rivera cocktail. You could also win a free dinner for two! Stop by at 6 p.m. See here for more information. 3. Pain Workshop: The South End’s Pathways to Wellness (1601 Washington St.) is hosting a free workshop for sufferers of chronic pain tonight at 6:30 p.m. Call ahead to reserve your spot. See here for more information. 4. Want to learn Chinese? The Boston Chinatown Mandarin Center (885 Washington St.) is starting up a session of Madarin for beginners starting April 22nd. Classes run on both Mondays and Saturdays.See here for more information. 5. Share your Events: Have a fantastic event coming up? List it in the events section and it could be featured here! Things you can do every day on South End Patch: Share your news with the rest of the community. Click here to add an announcement. Add your events to our events calendar. Click here to sign up for breaking news updates. Want up-to-the-minute news? Click here to follow us on Facebook or Twitter. Share your thoughts on your community in a blog. Click here to get started. South End Patch