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Kilnapp Enterprises, Inc. v. Massachusetts State Automobile Dealers Association, et al. (Lawyers Weekly No. 11-030-16)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-101 Appeals Court KILNAPP ENTERPRISES, INC.[1] vs. MASSACHUSETTS STATE AUTOMOBILE DEALERS ASSOCIATION & others.[2] No. 15-P-101. Suffolk. December 7, 2015. – March 17, 2016. Present: Rubin, Maldonado, & Massing, JJ. Libel and Slander. Actionable Tort. Practice, Civil, Motion to dismiss. Civil action commenced in the Superior Court Department on March 10, 2014. A motion to dismiss was heard by Judith Fabricant, J. Travis J. Jacobs for the plaintiff. Alan D. Rose, Sr., for Fisher & Phillips LLP & another. James F. Radke for Massachusetts State Automobile Dealers Association. RUBIN, J. This is an action for defamation brought by Kilnapp Enterprises, Inc., doing business as Real Clean (Real Clean), which describes itself as “a broker for automobile detailing and reconditioning between service providers and automobile dealerships.”[3] Real Clean brought this action against the Massachusetts State Automobile Dealers Association (MSADA) for its published statements concerning an investigation by the United States Department of Labor (DOL) into the practices of automobile detailing “brokers” including Real Clean. The complaint asserts not only a claim for defamation, but includes several other related counts that will be described more fully below. It names as a defendant not only MSADA but the author of the published statements, Attorney Joseph Ambash, and his law firm, Fisher & Phillips LLP. The defendants brought a motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), which was allowed. Real Clean appeals. Because the materials properly considered by the judge in the Superior Court demonstrate that Real Clean will be unable to prove that the defendants’ statements were materially false under the applicable standard, which requires demonstration that actionable statements have been made with knowledge of their falsity or in reckless disregard of their truth or falsity, we affirm the judgment dismissing all of Real Clean’s claims. Background. Our review of the allowance of a motion to dismiss is de novo. Glovsky v. Roche Bros. Supermkts., Inc., 469 Mass. 752, 754 (2014). For purposes of reviewing the allowance of a motion to dismiss we must, of course, take all the allegations in the plaintiff’s operative complaint, here the amended and verified complaint filed on May 7, 2014, as true. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). […]

Massachusetts State Automobile Dealers Association, Inc., et al. v. Tesla Motors MA, Inc., et al. (Lawyers Weekly No. 10-163-14)

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-11545 MASSACHUSETTS STATE AUTOMOBILE DEALERS ASSOCIATION, INC., & others[1] vs. TESLA MOTORS MA, INC., & another.[2] Norfolk. May 6, 2014. – September 15, 2014. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Motor Vehicle, Dealer. Consumer Protection Act, Motor vehicle franchise, Standing. Practice, Civil, Standing. Civil action commenced in the Superior Court Department on October 16, 2012. A motion to dismiss was heard by Kenneth J. Fishman, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Thomas S. Vangel (James F. Radke with him) for Massachusetts State Automobile Dealers Association, Inc., & others. Richard P. Campbell for the defendants. John E. Kwoka, Jr., pro se, amicus curiae, submitted a brief. BOTSFORD, J. In Beard Motors, Inc. v. Toyota Motor Distribs., Inc., 395 Mass. 428 (1985) (Beard Motors), this court held that a Massachusetts motor vehicle dealer did not have standing to maintain an action for an alleged violation of G. L. c. 93B, § 12A, against a motor vehicle distributor with which it was not affiliated. In the case before us, the principal question is whether amendments to the statute in 2002 broadened the scope of standing under c. 93B, such that Massachusetts motor vehicle dealers now have standing to maintain an action for an alleged violation of the statute against unaffiliated motor vehicle manufacturers or distributors. We hold that the 2002 amendments did not have this effect. Chapter 93B is aimed primarily at protecting motor vehicle dealers from injury caused by the unfair business practices of manufacturers and distributors with which they are associated, generally in a franchise relationship. We therefore affirm the judgment of the Superior Court dismissing the plaintiffs’ action on the basis of lack of standing. Procedural background. The plaintiff Massachusetts State Automobile Dealers Association, Inc. (MSADA), is a Statewide organization that represents the interests of new automobile and truck franchised dealerships in Massachusetts; two of the other plaintiffs, Connolly Buick Co., Inc., doing business as Herb Connolly Chevrolet, and Jake Kaplan’s Inc., doing business as Fisker Norwood, are Massachusetts motor vehicle dealers. The plaintiffs commenced this action against Tesla Motors, Inc., an automobile manufacturer, and its Massachusetts subsidiary, Tesla Motors MA, Inc., alleging that the defendants were operating “an automobile dealership showroom in the Natick Mall without a license […]