North American Catholic Educational Programming Foundation, Inc., et al. v. Clearwire Spectrum Holdings II LLC, et al. (Lawyers Weekly No. 09-023-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 15-3118 BLS 2 NORTH AMERICAN CATHOLIC EDUCATIONAL PROGRAMMING FOUNDATION, INC. et al.[1] Plaintiffs vs. CLEARWIRE SPECTRUM HOLDINGS II LLC, CLEARWIRE LEGACY LLC and SPRINT SPECTRUM, L.P., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO STAY ACTION Plaintiffs are non-profit entities that hold licenses from the Federal Communications Commission (FCC) to operate Educational Broadband Services (EBS) channels in certain geographic markets. In 2006, plaintiffs granted access to a portion of their wireless communication spectrum to defendants Clearwire Spectrum Holdings LLC and Clearwire, Legacy, LLC (Clearwire) pursuant to various written Agreements, including Master Royalty and Use Agreements (MRUAs). The defendant Sprint Spectrum L.P. (Sprint) subsequently acquired all the stock in Clearwire’s parent, and a dispute arose between Sprint and the plaintiffs as to what services Sprint was obligated to provide plaintiffs’ customers. Plaintiffs took the position that Clearwire had effectively sublicensed its use of the broadband spectrum to Sprint, and that, pursuant to the Agreements, this required plaintiffs’ consent – consent which they were entitled to withhold unless Sprint agreed to provide broadband access to plaintiff’s customers that was equivalent to what Clearwire itself would have provided had there been no sublicense. Plaintiffs filed this lawsuit in October 2015 seeking equitable relief and specific performance. In November 2015, this Court allowed plaintiffs’ Motion for a Preliminary Injunction, concluding that plaintiffs had demonstrated a substantial likelihood of prevailing on the merits. The injunction among other things required defendants to maintain Cost Free Educational Accounts (CFEAs) that entitle plaintiffs’ customers to access the Clearwire broadband network free of charge. On June 24, 2016, this Court allowed plaintiffs’ Motion for Partial Summary Judgment as to Count One of the Complaint, which focused on the single issue of consent. After some period of negotiation seeking a global resolution, two of the six plaintiffs in the instant action filed arbitration claims seeking damages, the MRUAs requiring them to pursue any monetary remedy in that forum. Defendants now move to stay this action until the arbitration is concluded. This Court concludes that this Motion must be DENIED. In support of the motion, defendants cite the broad arbitration provision in the MRUAs and argue that under the Federal Arbitration Act, it would be an abuse of discretion not to stay the instant action because the claims its raises substantially overlap with those issues being presented to a three member arbitration panel. A stay is appropriate, they argue, in order to avoid duplicative discovery and the risk of inconsistent results. In response, the plaintiffs contend that there is no overlap between the claims that they assert […]
Categories: News Tags: 0902318, American, Catholic, Clearwire, Educational, Foundation, Holdings, Inc., Lawyers, North, Programming, Spectrum, Weekly
Robert and Ardis James Foundation, et al. v. Meyers (Lawyers Weekly No. 10-055-16)
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 SJC-11898 ROBERT AND ARDIS JAMES FOUNDATION & another[1] vs. DANIEL MAXWELL MEYERS. Suffolk. December 10, 2015. – April 21, 2016. Present: Gants, C.J., Spina, Cordy, Duffly, Lenk, & Hines, JJ. Contract, Implied covenant of good faith and fair dealing. Damages, Breach of contract, Sale of stock. Corporation, Stock. Civil action commenced in the Superior Court Department on November 16, 2006. After transfer to the business litigation session, the case was heard by Christine M. Roach, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Joseph L. Bierwirth, Jr. (Ryan P. McManus & Thomas J. Carey, Jr., with him) for the plaintiffs. Kevin P. Martin (Katherine C. Sadeck with him) for the defendant. LENK, J. This case considers whether there was a breach of the implied covenant of good faith and fair dealing in a contract dispute between two sophisticated investors. In 1998 and 1999, Robert James, acting on behalf of the Robert and Ardis James Foundation charitable foundation (foundation), agreed to advance over $ 650,000 to Daniel Meyers, the defendant, to purchase shares of stock in what was then a young, privately held company that Meyers had cofounded, in exchange for a portion of the proceeds of an eventual sale of those shares. The agreement was memorialized in two single-page, non-integrated letters that set out formulas by which to calculate the distribution of proceeds, but did not discuss the timing of sale. In 2006, following nearly two years of unsuccessful efforts to get Meyers to discuss bringing the agreements to a close, the foundation filed a complaint against Meyers seeking specific performance and damages. After a six-day bench trial in the business litigation session of the Superior Court in 2011, a judge found that Meyers had committed a breach of the implied covenant of good faith and fair dealing, and awarded damages based on a date of breach of July 31, 2006.[2] The Appeals Court reversed, see Robert & Ardis James Found. v. Meyers, 87 Mass. App. Ct. 85, 86 (2015), and we granted the foundation’s application for further appellate review. Meyers argues that he did not commit a breach of the implied covenant, and that the damages award should be vacated. We conclude that the trial judge’s decision was not erroneous, and affirm the […]
Robert and Ardis James Foundation, et al. v. Meyers (Lawyers Weekly No. 11-011-15)
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-1169 Appeals Court ROBERT AND ARDIS JAMES FOUNDATION & another[1] vs. DANIEL MAXWELL MEYERS. No. 13-P-1169. Suffolk. March 14, 2014. – February 12, 2015. Present: Cohen, Graham, & Grainger, JJ. Contract, Implied covenant of good faith and fair dealing. Damages, Breach of contract, Sale of stock. Corporation, Stock. Civil action commenced in the Superior Court Department on November 16, 2006. After transfer to the business litigation session, the case was heard by Christine M. Roach, J. Kevin P. Martin (Katherine Sadeck with him) for the defendant. Joseph L. Bierwirth (Thomas J. Carey, Jr. with him) for the plaintiffs. GRAHAM, J. This action arose out of two one-page letter agreements (letter agreements or agreements) between plaintiff Robert James and the defendant, Daniel Maxwell Meyers,[2] in which James agreed to provide Meyers with $ 653,340 for the purchase by Meyers of 31,107 shares of stock in the First Marblehead Corporation, a company cofounded by Meyers. In exchange for supplying Meyers with the funds, James would receive the right to participate in the proceeds of the sale of the 31,107 shares. However, notably absent from each letter agreement was any provision governing its termination or establishing conditions upon which Meyers would be required to sell their stock.[3] In the fall of 2004, James’s daughter, Catherine James Paglia (Catherine[4]), seemingly on behalf of the James family, inquired of Meyers, seeking termination of the agreements. Meyers declined and, on November 16, 2006, the plaintiffs filed a multicount complaint in Superior Court, later amended, asserting claims for division and distribution of the shares (count I), dissolution of a partnership or joint venture (count II), declaration of an agency relationship (count III), breach of an implied term of the contract (count IV), breach of the implied covenant of good faith and fair dealing (count V), payment of a share of the dividends (count VI), and declaratory judgment (count VII). After a six-day bench trial in April, 2011, the trial judge found in favor of Meyers on counts I through IV and VI. She did, however, determine that on July 31, 2006, Meyers breached the implied covenant of good faith and fair dealing (count V). The judge awarded the plaintiffs damages based on the fair market value of the shares of the stock as of the time of the […]
New England Forestry Foundation, Inc. v. Board of Assessors of Hawley (Lawyers Weekly No. 10-083-14)
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‑11432 NEW ENGLAND FORESTRY FOUNDATION, INC. vs. BOARD OF ASSESSORS OF HAWLEY. Suffolk. January 6, 2014. ‑ May 15, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Administrative Law, Agency’s interpretation of statute, Findings, Judicial review, Appellate Tax Board: final decision. Taxation, Real estate tax: charity, Real estate tax: exemption, Appellate Tax Board: appeal to Supreme Judicial Court, Appellate Tax Board: findings, Judicial review. Charity. Corporation, Non‑profit corporation. Statute, Construction. Appeal from a decision of the Appellate Tax Board. The Supreme Judicial Court granted an application for direct appellate review. Douglas Hallward‑Driemeier (Jesse Mohan Boodoo & Jacob Scott with him) for the plaintiff. Rosemary Crowley (David J. Martel with her) for the defendant. The following submitted briefs for amici curiae: Robert H. Levin, of Maine, for Massachusetts Land Trust Coalition, Inc., & another. Gregor I. McGregor & Luke H. Legere for Massachusetts Association of Conservation Commissions, Inc., & another. James F. Sullivan for Massachusetts Association of Assessing Officers. Robert E. McDonnell & Patrick Strawbridge for The Nature Conservancy, & another. Lisa C. Goodheart, Susan A. Hartnett, Phelps T. Turner, & Joshua D. Nadreau for The Trustees of Reservations. SPINA, J. This case comes to us on direct appellate review from a decision of the Appellate Tax Board (board). The taxpayer, New England Forestry Foundation, Inc. (NEFF), is a nonprofit corporation organized under G. L. c. 180. NEFF is the record owner of a 120-acre parcel of forest land in the town of Hawley. In 2009, NEFF applied to the board of assessors of Hawley (assessors) for a charitable tax exemption on the parcel under G. L. c. 59, § 5, Third (Clause Third). The assessors denied NEFF’s application, and NEFF appealed to the board. The board likewise denied the application on the basis that NEFF had failed to carry its burden to show that it occupied the land in Hawley for a charitable purpose within the meaning of Clause Third. NEFF again appealed, and both NEFF and the assessors filed applications for direct appellate review. We granted the parties’ applications, and we reverse the board’s decision. 1. Background. The taxpayer, NEFF, is a Massachusetts nonprofit corporation organized under G. L. c. 180, and it has received tax-exempt status from the Federal government under 26 U.S.C. § 501(c)(3) (2006). NEFF was incorporated in […]
Locals Launch Foundation to Support Transplant Patients
Last March, John Morelli underwent double transplant surgery, receiving a heart and liver during an 18-hour procedure at Massachusetts General Hospital. Preparing for the surgery and then recovering – re-learning to eat, stand, walk and even write again – meant weeks in the hospital. It meant that his wife Stacey and sons Griffin, Tyler and Joshua spent many hours and days away from their home in East Braintree, and when they were home, everyday routines like baseball practice and making dinner became a challenge. Fortunately, support from the community poured in. A group created Friends of John Morelli that held a fundraiser prior to his surgery, and others prepared meals, created a schedule to give rides to practices and games for the Morelli boys and purchased vouchers for the family to use when visiting the hospital. Those efforts, and the experience meeting other patients’ families who did not have the same kind of support system, prompted John and Stacey to create the Transplant Foundation of New England. They launched the organization last month and have started helping their first transplant candidate, a local man named Francis Buckley who has been awaiting his second heart transplant since September at Mass General. With the assistance of a team that includes Morelli’s cardiologist, several business associates and friends, the foundation’s aim is to offer support, financial and otherwise, to members of the transplant community. This ranges from giving families gift cards to restaurants and grocery stores, to helping offset medical bills and providing transportation and childcare. Morelli, who has a management background, including a stint at The Red Cross Blood Service of New England, created a detailed plan for the foundation, including guidelines on how it will operate and a lengthy list of responsibilities for the board of directors. The vision, as outlined by Morelli on the organization’s website, is to keep operating costs at or below 25 percent. He projects first-year funding to hit $ 500,000, increasing to $ 1 million in year two and $ 2 million by year five. The foundation, a 501(c) 3 nonprofit organization, will partner with corporations, seek grants and vendors, and also look for individual and group donations. Anyone looking to contribute can do so at http://transplantfoundationofnewengland.org/donation.html. South End Patch
Categories: Arrests Tags: Foundation, Launch, Locals, Patients, Support, Transplant
Mass. Legislature Website Flunked by Sunlight Foundation
This week is Sunshine Week, when journalists and nonprofits cast a spotlight on government transparency, but there are dark clouds over the Massachusetts Legislature’s website according to one organization. The nonpartisan, nonprofit Sunshine Foundation gave the state Legislature’s website an ‘F,’ one of five states to receive a failing grade on a report card grading each state legislature website’s transparency. Websites were scored in six categories. The categories, along with the score ranges for each, Massachusetts’ scores and explanations were: Completeness (Score range: 0 or -1. Mass: -1): “Roll call votes not published on site in meaningful way.” Ease of access (Score range: -2 to 1. Mass: -2): “Site is frequently broken with no notice to users; bill information impossible to access without Javascript.” Machine Readibility (Score range: -2 to 2. Mass: -2): This category refers to the ability to collect data faster and more reliably when data was provided in formats such as XML, CSV or bulk downloads, the Sunshine Foundation said, as opposed to scanned documents or PDF images. For Massachusetts, “Vote data isn’t available; locked up in non-machine readable PDF.” Permanence (Score range: -2 to 2. Mass: -1): “A dearth of historical information, all information prior to 2009 removed.” Standards (Score range: -1 to 1. Mass: 0): which means “state provided bills in PDF and/or HTML format and nothing better (plain text, ODT, etc.)” according to the Sunshine Foundation’s methodology. Timeliness (Score range: -1 to 1. Mass: 1): The Mass. Legislature website’s lone above-average score, which means “multiple updates throughout the day, real time or as close to it as systems will allow.” The lead investigator on the Sunshine Foundation’s Open State project, James Turk, told WGBH that Massachusetts’ results were presented to the state and the Foundation “was told that not much was going to change.” State Sen. Jamie Eldridge (D-Acton) told WGBH that he thought Massachusetts has improved the bill tracking process, but admitted he was frustrated that all roll call votes were not online and said the site’s transparency could be better, adding that the executive branch websites provide better transparency. Turk agreed that Massachusetts’ executive branch “has been doing a great job.” Do you agree with the Legislature website’s grade? What would you like to see available on the site? And how would you grade your town or city government’s website on transparency? Tell us in the comments. South End Patch
Categories: Arrests Tags: Flunked, Foundation, Legislature, Mass., Sunlight, Website