Posts tagged "Corp."

Walker, et al. v. Boston Medical Center Corp., et al. (Lawyers Weekly No. 12-081-17)

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COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss SUPERIOR COURT

CIVIL ACTION

  1. 2015-01733-BLS1

KAMYRA WALKER and another,1

1 Anne O’ Rourke

2 MDF Transcription, LLC and Richard J. Fagan.

on behalf of themselves and other similarly situated

vs.

BOSTON MEDICAL CENTER CORP. and others 2

MEMORANDUM OF DECISION AND ORDER ON

DEFENDANT BOSTON MEDICAL CENTER CORP.’S

MOTION FOR SUMMARY JUDGMENT

In March 2014, defendant Boston Medical Center, Corp. (BMC) learned that another health care provider had inadvertently accessed a BMC patient’s medical information on a website maintained by defendant MDF Transcriptions, LLC (MDF), a medical transcription company used by both BMC and thisother provider.  It sent a letter to all its patients who had records that had been transcribed by MDF informingthem that there might have been unauthorized access to their medical information. After receiving this letter, the plaintiffs Kamyra Walker and Anne O’Rourke,filedthisputative classaction against BMC, MDF, and Richard Fagan, MDF’s owner and manager.  They assertthat the defendants are liableto them, and all other similarly situated BMC patients,for failing to ensure that their medical information was kept confidential.  The case is before the court on BMC’smotionfor summary judgment. BMCargues, among other things, that the plaintiffs lack standing to maintain the claims asserted2 read more

Posted by Stephen Sandberg - July 4, 2017 at 5:18 am

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Feeney v. Wave Systems Corp., et al. (Lawyers Weekly No. 12-173-16)

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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
SUCV2015-01938-BLS2
GERARD T. FEENEY,
Plaintiff
vs.
WAVE SYSTEMS CORP., WILLIAM M. SOLMS, & WALTER A. SHEPHARD,
Defendants
MEMORANDUM OF DECISION AND ORDER
ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND
ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
This is an action alleging a failure to pay accrued vacation time in violation of the Massachusetts Wage Act, G.L.c. 149 §148. Plaintiff, a former Chief Financial Officer for Wave Systems Corp. (Wave), has sued not only Wave but two of its officers, CEO and President William M. Solms and CFO Walter A. Shephard. Wave is in bankruptcy, so the claims against it are stayed. Now before the Court are plaintiff’s Motion for Summary Judgment and defendants’ Motion for Partial Summary Judgment. This Court concludes that both motions must be DENIED, except as to the issue of notice raised by the defendants’ motion.
Although certain facts in the summary judgment record are undisputed, the record also contains many fact disputes on critical issues. Briefly summarized, the record reveals the following. When Feeney was first hired by Wave in June 1998, the terms of his employment were set forth in an Employment Agreement. In addition to salary, Feeney was entitled to four weeks of vacation “in accordance with such executive benefit plans and policies as have been or may be established by Wave.” Upon termination, Feeney was entitled to be paid for all vacation
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accrued as of the date of termination. In 2002, however, Wave issued an Employee Handbook which capped vacation pay at a total of 320 hours. There is a dispute of fact as to whether this applied to Feeney.
Plaintiff relies heavily on the affidavit submitted by Wave’s former CEO Stephen Sprague in which Sprague states that he decided in or around 2004 not to apply the vacation cap in the Employee Handbook and to permit employees to accrue their vacation time without limitation. However, Solms has submitted a competing affidavit which states that the Handbook controlled and that a vacation cap has been and continued to be applied to employees, including executives like Feeney. Although plaintiff correctly notes that Solms joined the company only in October 2013 and therefore would have no personal knowledge about company policies before that date, there is other evidence in the summary judgment record which backs him up. Specifically, Kathleen Donovan, who worked in the Human Resources Department at Wave and was Wave’s Controller during the relevant time period, states in an affidavit that Sprague never informed her that he was changing what was contained in the Employee Handbook and that it was her understanding that a cap applied. Emails dated in 2007 and 2008 by other employees in the Human Resources Department also suggest that a cap was in effect. At the very least, this evidence raises a question as the credibility of Sprague’s claim, and credibility questions are clearly not appropriate for summary judgment.
In their cross motion, the defendants argue that Shepard should be dismissed as a named defendant since he became CFO of the company after plaintiff received notice of termination and did not participate in formulating or implementing Wave’s vacation policy. The Wage Act imposes personal liability on the “president and treasurer of a corporation and any officers or agents having the management of such corporation…” G.L.c. 149 §148. Wage was hired to
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replace Feeney as CFO, beginning work at the company on April 8, 2014, nine days after Feeney received a notice of his termination. Feeney’s last day of work was April 30, 2014. Although the case against Shephard does indeed appear to be weak, this Court concludes that there are disputes of fact as to Shephard’s duties and as to the role he played in the decision not to pay Feeney for accrued vacation.
As to the second issue raised by the defendants’ motion (which plaintiff does not appear to contest), this Court agrees with the defendants that the March 31, 2014 email to Feeney informing him of his termination constituted written notice as required by his employment agreement.
SO ORDERED.
__________________________________
Janet L. Sanders
Justice of the Superior Court
Dated: December 12, 2016
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Posted by Stephen Sandberg - December 30, 2016 at 6:31 pm

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United Salvage Corp. of America v. Kradin (Lawyers Weekly No. 12-159-16)

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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
NO. 16-03131 BLS 2
UNITED SALVAGE CORP. OF AMERICA d/b/a
FRAMINGHAM SALVAGE CO.,
Plaintiff
vs.
RICHARD KRADIN,
Defendant
MEMORANDUM OF DECISION
ON PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
Plaintiffs United Salvage Corporation, doing business as Framingham Salvage Company (Framingham Salvage), instituted this action against the defendant Richard Kradin seeking enforcement of noncompetition and nonsolicitation agreements negotiated when Kradin sold his salvage business to plaintiff. A hearing on plaintiff’s request for a preliminary injunction was held on November 3, 2016. Ruling from the bench, this Court allowed that Motion and entered the Order proposed by plaintiff. Although this Court did articulate the reasons for its ruling in open court, this memorandum is issued by way of further explanation.
Framingham Salvage is in the scrap metal and metal recycling business. In January 2015, it purchased all the assets of a competitor, Industrial Metal Recycling Inc. (IMR), owned by the defendant Kradin. In connection with that transaction, the parties executed a series of agreements, all of which are attached to the Verified Complaint. Kradin was represented by
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counsel in negotiating these agreements, which reference each other and therefore are construed as a whole.
Pursuant to an Asset Purchase Agreement, Framingham Salvage obtained all the assets of IMR, including its goodwill, in return for assuming liabilities totaling over $ 500,000 and forgiving IMR’s own $ 152,607 debt to plaintiff. Pursuant to an Employment Agreement, Framingham Salvage agreed to employ Kradin for a term of 60 months at a $ 250,000 annual salary. The parties executed a third agreement, entitled Proprietary Information and Inventions Agreement (the PII Agreement), which contains the restrictive covenants at issue in this case. Those covenants prohibit Kradin from competing with Framingham Salvage or soliciting the business of any customer with whom he has had personal contact or learned about during the course of his employment with the plaintiff. The covenants applied not only during the period of Kradin’s employment but continue for a period of five years from the date of the termination of his employment, regardless of the reason for the termination. Section 4(i ) if the PII Agreement further stated:
Each of my obligations to be performed under this Agreement shall be interpreted independent of any other provisions of this Agreement, the Asset Purchase Agreement or my Employment Agreement and any other obligation the Company [Framingham Salvage] may have toward me. The existence of any claims by me against the Company, whether based on this Agreement or otherwise, shall not be a defense to the enforcement by the Company of any of my obligations under this Agreement.”
On July 25, 2016, Framingham Salvage terminated Kradin, alleging that he had played golf on numerous work days without the company’s knowledge or approval, submitted false sales contact reports and generally misrepresented to the company orally and in writing that he was working when in fact he was not. Taking the position that this constituted “cause” under the Employment Agreement, Framingham Salvage ceased paying Kradin’s salary and, at the same
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time, reminded him of his obligations under the PII Agreement. It is undisputed that Kradin almost immediately began to contact Framingham Salvage customers and solicited them to do business with him instead.
In opposing the plaintiff’s motion, the defendant argues that Framingham Salvage has materially breached its own obligations by failing to pay some of the debts it had assumed, then drove him out of the company on “trumped up charges.” Although the evidence is conflicting as to whether Framingham Salvage breached any of its obligations or terminated Kradin without cause, the weight of that evidence at this point favors the plaintiff, not the defendant. More important, the defendant’s argument as to the significance of this evidence ignores Section 4(i ) of the PII Agreement, which makes it clear that the noncompete and nonsolicitation covenants are independent obligations and that any claim that Kradin may have against Framingham Salvage is not a defense to their enforcement. Even assuming that Kradin was terminated without cause, the restrictive covenants themselves expressly state that they apply regardless of the reason for any termination. By the terms of the Agreements that he signed, this defense does not excuse him from complying with the restrictive covenants.
Kradin next argues that issuance of the injunction would deprive him of the ability to earn a livelihood and that the restrictive covenants are unreasonable and in violation of public policy. This Court disagrees. The covenants are tailored to protect Framingham Salvage’s legitimate business interests – namely, the protection of its good will. Their geographic reach is limited to areas within Framingham Salvage’s territory. The five year length is also not unreasonable, particularly in light of the fact that it was negotiated as part of a sale of a business. See Alexander & Aexander Inc. v. Danahy, 21 Mass.App.Ct. 488, 496 (1986) (upholding five year restrictive covenant arising out of the sale of a business, court explained why a covenant in
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that context must be enforced more liberally). Clearly, the covenants here at issue were supported by ample consideration, since Kradin was able to get out from under $ 650, 00 in debt and also get a high level position in Framingham Salvage at a generous salary. As to the harm Kradin may suffer if it turns out the charges to terminate him were indeed “trumped up,” then he can sue Framingham Salvage for his unpaid salary. In other words, he has an adequate remedy at law.
For these and other reasons articulated by plaintiff’s counsel and by this Court at the motion hearing, the Motion for Preliminary Injunction was ALLOWED.
_________________________________
Janet L. Sanders
Justice of the Superior Court
Dated: November 8, 2016 read more

Posted by Stephen Sandberg - December 6, 2016 at 6:29 pm

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Amaral v. Seekonk Grand Prix Corp. (Lawyers Weekly No. 11-008-16)

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

13-P-1848                                       Appeals Court

SUSAN M. AMARAL  vs.  SEEKONK GRAND PRIX CORP.

No. 13-P-1848.

Bristol.     October 6, 2014. – January 14, 2016.

Present:  Cypher, Grainger, & Maldonado, JJ.

Negligence, One owning or controlling real estate.

Civil action commenced in the Superior Court Department on May 2, 2012.

The case was heard by Richard T. Moses, J., on a motion for summary judgment.

Melody A. Alger for plaintiff. read more

Posted by Stephen Sandberg - January 14, 2016 at 8:26 pm

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Celco Construction Corp. v. Town of Avon (Lawyers Weekly No. 11-019-15)

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

13-P-1880                                       Appeals Court

CELCO CONSTRUCTION CORP.  vs.  TOWN OF AVON.

No. 13-P-1880.

Norfolk.     October 8, 2014. – March 2, 2015.

Present:  Green, Rubin, & Agnes, JJ.

Contract, Public works, Bidding for contract, Municipality, Modification, Promissory estoppel.  Public Works, Bidding procedure, Extra work.  Municipal Corporations, Contracts, Estoppel.

Civil action commenced in the Superior Court Department on October 22, 2010. read more

Posted by Stephen Sandberg - March 2, 2015 at 5:27 pm

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The Bank of New York Mellon Corp. v. Wain, et al. (Lawyers Weekly No. 11-072-14)

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‑101                                        Appeals Court

THE BANK OF NEW YORK MELLON CORP., trustee,[1]  vs.  DAVID WAIN & another.[2]

No. 13‑P‑101.

Suffolk.     November 1, 2013.  ‑  June 24, 2014.

Present:  Kafker, Milkey, & Hines, JJ.

Mortgage, Assignment, Foreclosure.  Notice, Foreclosure of mortgage.  Real Property, Mortgage.  Practice, Civil, Summary judgment, Standing.  AssignmentLand Court, Jurisdiction.  Jurisdiction, Land Court. read more

Posted by Stephen Sandberg - June 24, 2014 at 11:39 pm

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Karatihy v. Commonwealth Flats Development Corp. (Lawyers Weekly No. 11-114-13)

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

12‑P‑1353                                       Appeals Court

RACHID KARATIHY  vs.  COMMONWEALTH FLATS DEVELOPMENT CORP.[1]

No. 12‑P‑1353.

Suffolk.     June 4, 2013.  ‑  September 18, 2013.

Present:  Cypher, Graham, & Agnes, JJ.

Employment, Termination, Retaliation.  Practice, Civil, Prima facie case.

Civil action commenced in the Superior Court Department on November 24, 2009.

The case was heard by Geraldine S. Hines, J., on a motion for summary judgment, and a motion to reconsider was considered by her. read more

Posted by Stephen Sandberg - September 18, 2013 at 2:52 pm

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Franklin Office Park Realty Corp. v. Commissioner of the Department of Environmental Protection (Lawyers Weekly No. 10-172-13)

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‑11334

FRANKLIN OFFICE PARK REALTY CORP.  vs.  COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION.

Worcester.     May 9, 2013.  ‑  September 16, 2013.

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

Department of Environmental ProtectionAdministrative Law, Agency’s interpretation of statute, Regulations, Judicial review.  Practice, Civil, Review of administrative action.  Environment, Air pollution.  AsbestosStatute, Construction.  RegulationWords, “Wilful.” read more

Posted by Stephen Sandberg - September 17, 2013 at 1:50 pm

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Hugenberger, et al. v. Alpha Management Corp. (Lawyers Weekly No. 11-087-13)

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

12‑P‑1788                                       Appeals Court

CHRIS HUGENBERGER & another[1]  vs.  ALPHA MANAGEMENT CORP.

No. 12‑P‑1788.      June 28, 2013.

Consumer Protection Act, Demand letter.

The plaintiffs appeal from a decision of the Appellate Division of the Boston Municipal Court Department (BMC) affirming the trial judge’s allowing the defendant’s motion for reconsideration and ordering the entry of judgment for the defendant.  The trial judge concluded that “the failure to offer the [G. L. c.] 93A demand letter, proof of a required element in the plaintiffs’ case, was a fatal mistake.”  The plaintiffs claim error in this ruling on the ground that they were not required, in the circumstances, to offer the demand letter in evidence and that the failure to do so was not manifestly wrong so as to allow the judge to reconsider his earlier denial of the defendant’s motion for a directed finding.  As we disagree, we affirm. read more

Posted by Stephen Sandberg - June 28, 2013 at 3:06 pm

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Plainville Asphalt Corp. v. Town of Plainville (Lawyers Weekly No. 11-072-13)

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

12‑P‑1022                                       Appeals Court

PLAINVILLE ASPHALT CORP.  vs.  TOWN OF PLAINVILLE.

No. 12‑P‑1022.

Suffolk.     February 28, 2013.  ‑  June 6, 2013.

Present:  Vuono, Rubin, & Sullivan, JJ.

Zoning, By‑law, Nonconforming use or structure.  Municipal Corporations, By‑laws and ordinances.

Civil action commenced in the Land Court Department on April 29, 2010.

The case was heard by Gordon H. Piper, J., on motions for summary judgment. read more

Posted by Stephen Sandberg - June 7, 2013 at 7:29 am

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