Exxon Mobil Corporation v. Attorney General (Lawyers Weekly No. 10-058-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12376 EXXON MOBIL CORPORATION vs. ATTORNEY GENERAL. Suffolk. December 5, 2017. – April 13, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Attorney General. Consumer Protection Act, Investigative demand. Jurisdiction, Personal, Foreign corporation, Long-arm statute. Due Process of Law, Jurisdiction over nonresident. Motion filed in the Superior Court Department on June 16, 2016. The proceeding was heard by Heidi E. Brieger, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Justin Anderson, of the District of Columbia (Jamie D. Brooks & Theodore V. Wells, Jr., of New York, Thomas C. Frongillo, & Caroline K. Simons also present) for the plaintiff. Richard A. Johnston, Assistant Attorney General (Melissa A. Hoffer, I. Andrew Goldberg, Christopher G. Courchesne, Peter C. Mulcahy, & Seth Schofield, Assistant Attorneys General, also present) for the defendant. Wendy B. Jacobs & Shaun A. Goho, for Francis X. Bellotti & others, amici curiae, submitted a brief. Archis A. Parasharami, of the District of Columbia, & Steven P. Lehotsky, for Chamber of Commerce of the United States of America, amicus curiae, submitted a brief. CYPHER, J. In 2015, news reporters released internal documents from Exxon Mobil Corporation (Exxon) purporting to show that the company knew, long before the general public, that emissions from fossil fuels — Exxon’s principal product — contributed to global warming and climate change, and that in order to avoid the consequences of climate change it would be necessary to reduce drastically global fossil fuel consumption. The documents also purported to establish that despite Exxon’s knowledge of climate risks, the company failed to disclose that knowledge to the public, and instead sought to undermine the evidence of climate change altogether, in order to preserve its value as a company. Upon reviewing this information, the Attorney General believed that Exxon’s marketing or sale of fossil fuel products in Massachusetts may have violated the State’s primary consumer protection law, G. L. c. 93A. Based on her authority under G. L. c. 93A, § 6, the Attorney General issued a civil investigative demand (C.I.D.) to Exxon, seeking documents and information relating to Exxon’s knowledge of and activities related to climate change. Exxon responded by filing a motion in the Superior Court, pursuant to G. L. c. […]
Boston Scientific Corporation v. Takahashi, et al. (Lawyers Weekly No. 09-060-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, so SUPERIOR COURT CIVIL ACTION 2017-02976 BLS 2 BOSTON SCIENTIFIC CORPORATION, Plaintiff vs. LYNN TAKAHASHI, GENE ZIGRA, JONATHAN OLSEN, and NUVECTRA CORPORATION Defendants MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION TO DISMISS FOR FORUM NON CONVENIENS This is an action against three former employees of the plaintiff Boston Scientific Corporation (Boston Scientific) and their current employer, the Nuvectra Corporation (Nuvectra) alleging misappropriation of confidential information and violations of a nonsolicitation clause in the individual defendants’ employment agreements with plaintiff. Each of those agreements contains clauses designating Massachusetts as the forum and Massachusetts law as the governing law for any legal disputes arising from the agreements. The defendants now move to dismiss the action based on the doctrine of forum non conveniens. This Court concludes that the Motion must be Denied. In support of their Motion, the defendants point out that at all relevant times, the former employees worked and resided in California. Before their departure in September of this year, they worked for Boston Scientific’s sale team in the Los Angeles area; they currently work for Nuvectra, a competitor of Boston Scientific, as part of its sales team in the same geographical region. Relying on G.L.c. 223 § 5A, the defendants argue that “the interest of substantial justice” supports dismissal of this action because the balance of private and public concerns favor a California forum. Gianocostas v. Interface Grp.-Massachusetts Inc., 450 Mass. 715, 723 (2008). In particular, they argue that California’s strong policy against the enforcement of restrictive covenants suggests that this case is best decided in a California forum. This Court is not convinced. The doctrine of forum non conveniens “leaves much to the discretion of the court to which plaintiff’s resorts…” Gulf Oil Corp., v. Gilbert, 330 U.S. 501, 508 (1947) (outlining the public and private concerns a court should consider in applying the doctrine). However, this Court must exercise that discretion keeping in mind that there is a strong presumption in favor of plaintiff’s choice of forum. “Assuming jurisdiction and venue are proper, dismissal on the ground of forum non conveniens will rarely be granted; ‘unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.’” Kearsarge Metallurgical Corp. v. Peerless Ins. Co., 383 Mass. 162 , 169 (1981) (footnote omitted), quoting from New Amsterdam Cas. Co. v. Estes, 353 Mass. 90 , 95 (1967). See also Joly v. Albert Larocque Lumber, Ltd., 397 Mass. 43 (1986). In the instant case, the defendants face an additional hurdle in convincing this Court that dismissal is warranted in that each of the employment agreements designates Massachusetts as an appropriate forum. Indeed, in one of […]
Categories: News Tags: 0906017, boston, Corporation, Lawyers, Scientific, Takahashi, Weekly
Santiago, et al. v. Rich Products Corporation, et al. (Lawyers Weekly No. 11-158-17)
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-504 Appeals Court KELVIN SANTIAGO & others[1] vs. RICH PRODUCTS CORPORATION & others.[2] No. 16-P-504. Middlesex. September 8, 2017. – December 28, 2017. Present: Milkey, Hanlon, & Shin, JJ. Negligence, Spoliation of evidence, School. Food. School and School Committee, Liability for tort. Practice, Civil, Instructions to jury, Summary judgment. Civil action commenced in the Superior Court Department on August 21, 2006. A motion for summary judgment was heard by Garry V. Inge, J.; the case was tried before Bruce R. Henry, J., and the entry of judgment was ordered by him. Marc Diller (Jonathon D. Friedmann also present) for the plaintiffs. Myles W. McDonough for Rich Products Corporation & others. Hannah B. Pappenheim, Assistant City Solicitor (Elliott Veloso, Assistant City Solicitor, also present) for city of Lowell. SHIN, J. Kelvin Santiago (Kelvin) suffered traumatic brain damage after choking on meatballs served in the cafeteria of a city of Lowell (city) public school. He and his parents filed suit against the city and Rich Products,[3] the company that produced and sold the meatballs, asserting negligence and breach of the implied warranty of merchantability, among other claims. A judge allowed the city’s motion for summary judgment, and, after seventeen days of trial, a jury returned a verdict in Rich Products’ favor.[4] On appeal the plaintiffs claim error in the trial judge’s denial of their request for an adverse-inference instruction against Rich Products for alleged spoliation of documentary evidence and in the motion judge’s allowance of summary judgment for the city. We conclude that the trial judge did not abuse his discretion in declining to give a spoliation instruction because the plaintiffs failed to establish the necessary factual predicate that Rich Products lost or destroyed the missing evidence when it knew or should have known of a potential lawsuit. We further conclude that the motion judge correctly ordered the entry of summary judgment for the city because no rational jury could have found that its employees acted negligently. For these reasons we affirm the judgment. Background. 1. The choking incident. The basic facts regarding what occurred during the incident are not in dispute. In 2004 Rich Products began producing meatballs to sell to schools through the Federal government’s National School Lunch Program. The meatballs contained a binding agent called Profam 974, which […]
Finnegan, et al. v. VBenx Corporation, et al. (Lawyers Weekly No. 09-049-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2009-03772-BLS1 J. BRENT FINNEGAN, and others Plaintiffs vs. VBENX CORPORATION, and others Defendants VBENX CORPORATION, and others Plaintiffs-in–Counterclaim vs. J. BRENT FINNEGAN, and others Defendants-in-Counterclaim INTERIM ORDER ON DEFENDANTS’ MOTION FOR AN AWARD OF FEES AND COSTS UNDER G.L. c. 231, §6F Still pending in this action is the G.L. c. 231, § 6F motion brought by the defendants VBenx Corporation, Richard Baker, Peter Marcia, Walter Smith and D. Michael Sherman (collectively, VBenx)1 in which they seek an award of reasonable counsel fees and other costs incurred in defending the claims asserted against them by the plaintiffs J. Brent Finnegan, Kenneth F. Phillips, Karen W. Finnegan and Back Bay Ventures, LLC (collectively, Finnegan 1 The Court recognizes that VBenx is not actually a party to either the § 6F motion or the counterclaim for malicious prosecution as it was not a defendant in the claims prosecuted by Finnegan et al. However, the Court believes this is a convenient way to collectively refer to the defendants/plaintiffs-in-counterclaim. 2 and the Finnegan claims). An abbreviated review of the prolix proceedings in this eight year litigation (there are 291 docket entries) is necessary to place this motion in context. BACKGROUND Finnegan filed his claims on September 4, 2009; VBenx filed its counterclaims on October 28, 2009. After much pretrial sparring, the Finnegan claims were severed from VBenx’ counterclaims and proceeded to trial, without a jury, on April 25, 2011 (Lauriat, J. presiding). The case was tried over twenty-five days, concluding on June 5, 2011. 819 exhibits were entered in evidence (6.5 feet of paper according to Judge Lauriat’s Memorandum of Decision). On October 19, 2012, the Court issued extensive Findings of Fact and Rulings of Law finding in favor of VBenx with respect to all claims asserted against it. After further motions and hearings, on March 26, 2013, the Court entered a Separate and Final Judgment based upon its Findings and Rulings which dismissed all of the Finnegan claims. On May 3, 2013, Finnegan appealed; the Superior Court’s Judgment was affirmed by the Appeals Court on August 14, 2015. See Finnegan v. Baker, 88 Mass. App. Ct. 35 (2015). In the meantime, the parties commenced litigation of VBenx’ counterclaims. Of relevance to the motion now before the court, on May 6, 2013 the parties filed a Rule 9A package including both Finnegan’s motion to dismiss the counterclaims and VBenx’ cross-motion for an award fees and costs under §6F based on the outcome of the jury-waived trial.2 It 2 It is notable that this § 6F cross-motion is based on orders entered following the trial of the Finnegan claims, the entry of a Separate and Final Judgment […]
OneBeacon America Insurance Company v. Celanese Corporation (Lawyers Weekly No. 11-134-17)
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-203 Appeals Court ONEBEACON AMERICA INSURANCE COMPANY vs. CELANESE CORPORATION. No. 16-P-203. Suffolk. November 18, 2016. – October 16, 2017. Present: Trainor, Meade, & Hanlon, JJ. Insurance, Defense of proceedings against insured, Insurer’s obligation to defend. Contract, Insurance. Conflict of Interest. Practice, Civil, Summary judgment, Attorney’s fees. Civil action commenced in the Superior Court Department on March 2, 2010. The case was heard by Christine M. Roach, J., on motions for summary judgment, and an award of attorney’s fees was entered by her. Kevin J. O’Connor (Kara A. Loridas also present) for the plaintiff. Michael John Miguel for the defendant. TRAINOR, J. This appeal arises from a series of cross motions for summary judgment. The plaintiff, OneBeacon America Insurance Company (OneBeacon), appeals from so much of the final judgment as awarded reasonable and necessary defense costs to its insured, Celanese Corporation (Celanese), that Celanese incurred from April 13, 2009, through May 27, 2011.[1] On May 27, 2011, a judge of the Superior Court determined that OneBeacon was entitled to take control of Celanese’s defense as of April 13, 2009 (see note 1, supra). The issue on appeal is whether that determination precludes Celanese from receiving any reimbursement for defense of the underlying claims during the period of time when the question of control over the defense was being litigated. OneBeacon argues that it is not liable for any defense costs incurred by Celanese during that period of time because OneBeacon offered to defend Celanese without a reservation of rights. Celanese, on cross appeal, contends that the judge committed an abuse of discretion by not awarding the full amount of defense costs that Celanese requested. We vacate so much of the judgment that held OneBeacon liable for Celanese’s defense costs for the period of time at issue, and therefore do not reach the issues raised in Celanese’s cross appeal. Background. The following undisputed facts are taken from the summary judgment record. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991) (“The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law”). […]
Boston Scientific Corporation v. Takaahashi, et al. (Lawyers Weekly No. 09-012-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, so SUPERIOR COURT CIVIL ACTION NO. 2017-02976 BLS 2 BOSTON SCIENTIFIC CORPORATION, Plaintiff vs. LYNN TAKAAHASHI, GENE ZIGRA, JONATHAN OLSEN, And NUVECTRA CORPRATION Defendants MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION This is an action against three former employees of the plaintiff Boston Scientific Corporation (Boston Scientific) and their current employer, the defendant Nuvectra Corporation. The three individual defendants all reside in California and performed work for Boston Scientific in California until they resigned from the company on September 7, 2017. Boston Scientific alleges that upon their departure, the three took with them proprietary information relating to customer pricing and solicited least one Boston Scientific employee to join them at Nuvectra. Boston Scientific now seeks a court order prohibiting the employees from using or disclosing this information or from soliciting any other Boston Scientific employees. The request also seeks to prevent the individuals from doing any work for Nuvectra for some undefined period of time while an “accounting” is done of the information they allegedly took, even though their employment agreements with Boston Scientific do not include any provisions preventing them from working for a competitor or from soliciting Boston Scientific customers. In connection with this request, the Court has considered various affidavits, including those of the three employees who specifically deny taking any confidential information. This 2 Court has also considered the fact that Nuvectra itself took certain steps in advance of any litigation to ensure that the individuals returned all electronic devices they used while working at Boston Scientific, and has temporarily sidelined (or “benched”) them during this process. Based on these submissions as well as the memoranda and arguments of the parties, this Court concludes that the plaintiff has not demonstrated that it has a reasonable likelihood of success on the merits, or that it would suffer any irreparable harm if the injunction did not issue. Packaging Industries v. Cheney, 380 Mass. 609, 616, 617 (1980). Of particular importance to the Court’s conclusion is the following: 1. The information that Boston Scientific alleges was wrongfully taken were Product Billing Forms, which contain serial numbers of the products sold together with their price. In order for a nondisclosure agreement to be enforceable, the information it protects must be confidential, however. See Dynamic Research Corp. v. Analytic Scis. Corp., 9 Mass.App.Ct. 254, 278 (1980). Conceding that the forms contain no trade secrets, Boston Scientifics argues that they are nevertheless worthy of protection because they include “pricing packages” that are customized to meet the needs of its individual customers. Clearly, this pricing information has been shared with each customer, however, since the forms are generated in order to bill the customer; […]
Categories: News Tags: 0901217, boston, Corporation, Lawyers, Scientific, Takaahashi, Weekly
Kelly v. Waters Corporation, et al. (Lawyers Weekly No. 09-013-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 17-00064-BLS1 DOUGLAS M. KELLY vs. WATERS CORPORATION & another1 MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS Plaintiff, Douglas M. Kelly, filed this action against defendants, Waters Corporation and NuGenesis Technologies Corporation (referred to collectively as “NuGenesis”). The dispute involves Kelly’s claim that NuGenesis owes him millions of dollars in compensation related to software he created, developed, and later sold to NuGenesis. Kelly asserts the following five claims against NuGenesis in his Complaint: fraud (Count I), breach of contract (Count II), violation of Chapter 93A (Count III), audit and accounting (Count IV), and piercing the corporate veil (Count V). NuGenesis now moves to dismiss all claims pursuant to Mass. R. Civ. P. 12(b)(6). For the reasons stated below, NuGenesis’s motion to dismiss is allowed. BACKGROUND The facts as revealed by Kelly’s Complaint and the documents referenced in the Complaint are as follows. Kelly, a professional computer software developer and distributor, is a resident of Spring Lake, New Jersey. Waters is a Delaware corporation with a principal place of business in 1 NuGenesis Technologies Corporation. Milford, Massachusetts. In February 2004, Waters acquired NuGenesis and assumed all of NuGenesis’s liabilities and contractual obligations to Kelly. Complaint at para. 2. NuGenesis is a Delaware corporation with a principal place of business in Milford. It has operated as a wholly owned subsidiary of Waters since February of 2004. From 1987 to 1999, Kelly developed the computer software product lines called TriRidian, also known as Archive, and VP Office. Kelly designed Archive to meet the needs of companies obligated to comply with regulations promulgated by the Food and Drug Administration (FDA) in 1997, that specified the criteria that had to be met for the FDA to accept electronic records/signatures as the equivalent of paper records/signatures from drug makers and other FDA-regulated industries. Archive also allows users to collect and store raw data from laboratory instruments and retrieve the data on demand by FDA inspection teams. VP Office allows lab users to work directly with data from laboratory instruments using Microsoft Office’s Word and Excel products. NuGenesis was founded in 1997. In 1999, NuGenesis was still a start-up company that had one viable product, UNIFY & VISION (UV), an efficiency tool that performed the same function as VP Office. NuGenesis executives wanted to present the company to underwriters and potential investors as a two-product software company. They approached Kelly about developing and selling Archive and VP Office. NuGenesis represented to Kelly that it was well qualified and had sufficient financial, personnel, sales, and technical resources. Kelly asserts in his Complaint that NuGenesis lacked these resources to develop and sell Archive or VP Office. NuGenesis, […]
Rush v. FastCAP Systems Corporation, et al. (Lawyers Weekly No. 09-006-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, so SUPERIOR COURT CIVIL ACTION NO. 2017-02842-BLS2 JACK RUSH, Plaintiff vs. FASTCAP STYSTEMS COPRATION, JOHN COOLEY, JAMES HARRIS, MATTHEW FENSLAU AND RICCARDO SIGNORELLI, Defendants MEMORANDUM OF DECISION AND ORDER ON MOTION FOR TRUSTEE PROCESS ATTACHMENT AND FOR ATTACMENTS OF REAL PROPERTY This action alleges violations of the Massachusetts Wage Act, G.L.c. 149 §148B. Specifically, the plaintiff Jack Rush alleges that the defendant FastCAP Systems Corporation (FastCAP) misclassified and compensated him as an independent contractor when he should have been classified and paid as an employee within the meaning of G.L.c. 149 §148. It then terminated him when he complained about his compensation. Certain individuals are also named as defendants on the grounds that, because they exercised managerial control over FastCAP, they are personally liable for these violations. Cook v. Patient Ed LLC, 465 Mass. 548, 552-553 (2013). The case is now before the Court on the plaintiff’s motion to attach the bank accounts of FastCAP in the amount of $ 594,593, and to attach real property owned by the individual defendants. After hearing and careful review of the parties’ submissions, this Court concludes that, taking into account the likelihood of success on the merits, the balance of equities supports the denial of these motions, for the following reasons. Whether seeking an attachment of real property or an attachment of funds by way of 2 trustee process, plaintiff must establish a reasonable likelihood that he will recover judgment against the defendant in an amount at least equal to the amount sought to be attached; he must further demonstrate that there is no liability insurance available that could satisfy any possible judgment. See Rules 4.1 and 4.2, Mass.R.Civ.P. Although there is no explicit requirement that the Court balance the relative harms to the parties, the Rules are based on the idea that there must be a need for the relief requested; moreover, because it is equitable nature, the Court can and should take into account the relative equities in denying or allowing the requested relief. In the instant case, FastCAP makes out a compelling case that a trustee process attachment would have a serious impact on its business. The Company is in the business of developing cutting edge power systems and has ongoing contracts with NASA and U.S. Department of Energy, with sales to top oilfield service companies. See Affidavit of Matthew Fenselau. With seventeen full time employees and the financial backing of a Boston investment firm, FastCAP is optimistic about its future. An attachment of its bank accounts, however, could cause FastCAP’s financial backing to be withdrawn and could trigger claims by other individuals and entities. If on the other hand, no attachment issues, the harm […]
Massachusetts Bay Transportation Authority v. Boston and Maine Corporation, et al. (Lawyers Weekly No. 12-124-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 17-00153-BLS1 MASSACHUSETTS BAY TRANSPORTATION AUTHORITY vs. BOSTON AND MAINE CORPORATION & others1 MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF MASSACHUSETTS BAY TRANSPORTATION AUTHORITY’S PARTIAL MOTION TO DISMISS DEFENDANTS’ COUNTERCLAIMS Plaintiff, Massachusetts Bay Transportation Authority (MBTA), filed this action for declaratory and injunctive relief against defendants, Boston and Maine Corporation, Springfield Terminal Railway Company, and Pan Am Southern LLC (referred to collectively as “Pan Am”). The dispute involves the implementation of positive train control (PTC), a safety system aimed at preventing train accidents. Pan Am alleged eleven counterclaims against the MBTA. MBTA now moves to dismiss three of the counterclaims pursuant to Mass. R. Civ. P. 12(b)(6). The three counterclaims allege misrepresentation (Count VIII), promissory/equitable estoppel (Count IX), and violation of G.L. c. 93A, § 11 (Count X). For the reasons stated below, the MBTA’s motion to dismiss is allowed. BACKGROUND The facts as revealed by Pan Am’s counterclaims are as follows. The MBTA is a body politic and corporate and a political subdivision of the 1 Springfield Terminal Railway Company and Pan Am Southern LLC. Commonwealth of Massachusetts. It operates bus, subway, commuter rail, and ferry systems in and around Boston, Massachusetts. The Pan Am defendants operate freight lines over tracks that, in some instances, are owned and/or used by the MBTA. Since 2010, Pan Am worked closely and cooperatively with the MBTA to plan and prepare for the implementation of PTC on tracks over which both parties operate. The parties worked to comply with a 2008 federal mandate requiring that PTC be implemented on certain rail lines, including lines that carry certain minimum levels of passenger traffic. PTC is designed to prevent train-to-train collisions, derailments resulting from excessive speed, and other types of accidents. Generally, PTC uses a combination of on-board and rail-side technology to track and control train movements on the rail lines outfitted with this technology. In this dispute, the rail lines affected include both MBTA-owned trackage, over which Pan Am operates freight trains pursuant to a reserved freight easement, and Pan Am-owned trackage, over which the MBTA initiated and expanded commuter rail operations at the end of 2016. According to Pan Am, under federal law, PTC must be implemented on the rail lines at issue because the MBTA operates passenger trains on them. Absent the MBTA’s use of these rail lines, no PTC system is required. In addition, freight trains may not operate on tracks handling passenger traffic that are required to have PTC unless those freight trains are equipped with a PTC system that is compatible with the commuter rail’s PTC system. After the federal government imposed the 2008 PTC requirements, Pan Am alleges that […]
Categories: News Tags: 1212417, Authority, boston, Corporation, Lawyers, Maine, massachusetts, Transportation, Weekly
O’Connor Constructors, Inc. v. HVAC Compensation Corporation, et al. (Lawyers Weekly No. 12-099-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 15-0205-BLS1 O’CONNOR CONSTRUCTORS, INC. vs. HVAC COMPENSATION CORPORATION and others1 MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT In this action, the plaintiff, O’Connor Constructors, Inc. (O’Connor), seeks to recover sums paid by the defendant HVAC Compensation Corporation (HVAC), a non-profit corporation established as a workers compensation self-insurance group or SIG, to purchase a loss portfolio transfer (LPT) insurance policy. O’Connor withdrew from HVAC at the end of 2009. It asserts that a substantial portion of the surplus that HVAC used to purchase the LPT policy should have been distributed to it as dividend. O’Connor also seeks to set aside an assessment that HVAC issued against O’Connor for additional funds to cover a liquidity deficit created by the purchase of the LPT policy. The additional defendants are the trustee/directors of HVAC (hereafter referred to as the Directors), each of whom are representatives of the companies that comprise the SIG, as well as the member companies themselves. While O’Connor’s complaint initially pled seven counts, four were previously dismissed. Three counts remain: breach of contract (Count I), breach of fiduciary duty (Count VI), and violation of G.L. c. 93A (Count VII). The 1 (i) Richardd Donohoe, William J. Lynch, Kevin R. Gill, James Morgan, Paul M. Level, Jr., and Shane B. Hamel, each sued individually and as Trustee/Director of HVAC, and (ii) Harrington Bros. Corporation, William V. Lynch Co., Inc., McCusker-Gill co., Inc., Worcester Air Conditioning, LLC, Le Bel, Inc., and Hamel & McAlister, Inc. 2 case is now before the court on the defendants’ motion for summary judgment. For the following reasons, the motion is DENIED as to Counts I and VI and ALLOWED as to Count VII. FACTS The following facts are either undisputed or viewed in the light most favorable to O’Connor, the non-moving party. In 1992, HVAC was organized to operate as a workers’ compensation SIG pursuant to G.L. c. 152, §§25E – 25U. Its members were companies principally engaged in the heating, ventilation, and air conditioning trades in Massachusetts. While a SIG is permitted to organize itself in various forms, HVAC was organized as a not-for-profit corporation under G.L. c. 180, § 4(n). Each HVAC member is required to enter into an Application and Indemnity Agreement (Indemnity Agreement) and is bound by HVAC’s by laws. Material to this case is a provision in G.L. c. 180, § 3 which provides that not-for-profit corporations, like HVAC, may not through their articles of organization or bylaws eliminate the personal liability of its directors “ (i) for any breach of the . . . director’s duty of loyalty to the corporation or its members, (ii) for […]
Categories: News Tags: 1209917, Compensation, Constructors, Corporation, HVAC, Inc., Lawyers, O’Connor, Weekly