Posts tagged "Inc."

Gallagher v. Cerebral Palsy of Massachusetts, Inc., et al. (Lawyers Weekly No. 11-117-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1152                                       Appeals Court

SUSAN GALLAGHER  vs.  CEREBRAL PALSY OF MASSACHUSETTS, INC., & others.[1]

No. 16-P-1152.

Norfolk.     April 6, 2017. – September 13, 2017.

Present:  Green, Blake, & Lemire, JJ.

MassHealth.  Massachusetts Wage Act.  Labor, Overtime compensation, Failure to pay wages.  Independent Contractor Act.  Regulation.  Practice, Civil, Motion to dismiss, Summary judgment.

Civil action commenced in the Superior Court Department on December 10, 2015. read more

Posted by Stephen Sandberg - September 13, 2017 at 6:36 pm

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Element Productions, Inc. v. EditBar, LLC, et al. (Lawyers Weekly No. 12-122-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
No. 2016-1476 BLS1
ELEMENT PRODUCTIONS, INC.
vs.
EDITBAR, LLC, STIR FILMS, LLC and MARK HANKEY
ORDER ON DEFENDANTS’ MOTION TO STAY ACTION AND COMPEL
ARBITRATION (Paper No. 37)
Approximately thirteen months after defendants answered the complaint and asserted
counterclaims and a third-party claim, defendants now seek to move this case to arbitration. The
issue presented is whether defendants, by their active litigation conduct, waived arbitration. For
the reasons described below, I find that arbitration is waived and, thus, this motion is denied.
BACKGROUND
Defendant Mark Hankey was an employee of Element until April 12, 2016. He executed a
written employment agreement in 2012 stating that “[a]ny dispute, claim or controversy arising
out of or relating to this Agreement or the breach, termination, enforcement, interpretation or
validity thereof shall be determined by arbitration in Boston, Massachusetts before one arbitrator.
The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules
and Procedures . . . .”
Plaintiff, Element Productions, Inc., commenced this action on May 9, 2016. Element
alleges that in 2015, Hankey began secretly aiding Element’s direct competitor, defendant Stir
Films LLC, a start-up video production company set up by defendant, EditBar, LLC. Hankey
1
allegedly disclosed Element’s confidential information to Stir Films and worked to assist Stir
Films to lure employees from Element to Stir Films. Element alleges that Hankey’s conduct was
in violation of his employment agreement. Element also alleges that EditBar and Stir Films aided
and abetted Hankey’s breach of fiduciary duty, tortiously interfered with Element’s contract with
Hankey, and conspired with Hankey to injure Element, among other claims.
Had Hankey timely moved to compel arbitration of Element’s claims such motion would
have been allowed. Element does not appear to disagree that its claims against Hankey come
within the arbitration provision. Moreover, EditBar and Stir Films contend that they, also, are
entitled to arbitration pursuant to the recent decision of the Appeals Court in Silverwood
Partners, LLC v. Wellness Partners, LLC, 91 Mass. App. Ct. 856 (2017). In Silverwood, the
Court held that a nonsignatory to an arbitration agreement (like EditBar and Stir Films) may
compel arbitration when a signatory (Element) raises allegations of substantially interdependent
and concerted misconduct by both the nonsignatory and one or more of the signatories (Hankey)
to the contract.
Element’s argument against enforcement of the agreement to arbitrate is based entirely on
the principle of waiver of arbitration by litigation conduct. This principle was recognized by the
Supreme Judicial Court in Home Gas Corp. of Massachusetts v. Walter’s of Hadley, Inc. 403
Mass. 772 (1989). Where, under the totality of the circumstances, the party moving to arbitrate
has acted inconsistently with his arbitration right, such right might be waived. Id. at 775. The
facts indicating waiver include whether the party actually participated in the lawsuit and invoked
the jurisdiction and machinery of the court by, for example, filing a counterclaim or by litigating
discovery disputes. Id. at 776. Delay in demanding arbitration while utilizing court procedures
2
and litigating to obtain court decisions interferes with the court’s interest to control the course of
proceedings before it. Id. at 778.
Here, the totality of the circumstances show waiver. As mentioned, this case has been
actively litigated in court for more than a year. Hankey answered the complaint in June 2016, and
asserted counterclaims against Element for violation of the Wage Act, breach of contract,
conversion, and defamation. Hankey then initiated a third-party complaint against Eran Lobel, an
officer of Element. Hankey then amended his answer, counterclaims, and third-party claim in
preparation to litigate the motion to dismiss the counterclaims and third-party claim filed by
Element. Such litigation ensued with the parties’ invoking the court’s consideration of the
motion that resulted in some of Hankey’s claims being dismissed (such as the claim for
defamation) and some of his claims surviving. Neither Hankey or the corporate defendants
communicated any desire to go to arbitration.
Discovery proceeded apace over the last year. The parties negotiated a protective order
and asked the court to endorse the order. Documents were produced and depositions taken. The
parties, including the corporate defendants, litigated over discovery requests, requiring the court
to resolve the disputes. In January 2017, Hankey submitted a written statement in favor of
transferring this case to the Business Litigation Session (BLS) stating that the case warranted
substantial case management. The case was accepted into the BLS. In June 2017, the parties
appeared in the BLS for a Litigation Control Conference. The parties jointly agreed to a tracking
order setting October 31, 2017 as the deadline for completion of discovery.
Recently, on June 26, 2017, Hankey filed in court the Rule 9A package for his motion for
leave to amend his answer and counterclaims by filing a Second Amended Answer and
3
Counterclaim. Among other things, the proposed amended counterclaim seeks to re-assert a
claim for defamation based, in part, on facts allegedly learned in discovery. That motion is still
pending, with oral argument set for September 5, 2017.
Then, on July 21, 2017, the corporate defendants served a motion for protective order
with respect to ongoing discovery disputes. In August 2017, the corporate defendants filed an
emergency motion to impound documents in connection with a motion (not yet filed in court) to
compel discovery from Element concerning damages.
Notwithstanding this active practice before this court seeking both affirmative relief and
protection from discovery, on July 17, 2017, less than three weeks from Hankey filing his motion
to amend his pleadings, Hankey and the corporate defendants served the instant motion to stay
the action and to compel arbitration. Until the service of that motion, no reference to the
possibility of arbitration was raised by Hankey or the corporate defendants.
DISCUSSION
I find the analysis and conclusion in Shalaby v. Arctic Sand Technologies, Inc., 32 Mass.
L. Reptr. 401, 2014 WL 7235830 (2014) (Salinger, J.), to be directly on point and entirely
persuasive. No purpose would be served by repeating the analysis. I agree with Judge Salinger
that the better reasoned cases, including Marie v. Allied Home Mortgage Corp., 402 F. 3d 1 (1st.
Cir. 2005), hold that whether waiver of arbitration by litigation conduct has occurred is one for
the court to decide, not the arbitrator. The court has a direct interest in controlling its judicial
procedures and in preventing abusive forum shopping.1
1 There is no argument advanced by defendants that the terms of the arbitration contract
reserve the issue of waiver by litigation conduct to the arbitrator.
4
“Where we are dealing with a forfeiture by inaction (as opposed to an explicit waiver),
the components of waiver of an arbitration clause are undue delay and a modicum of prejudice to
the other side.” Rankin v. Allstate Ins. Co., 336 F. 3d 8, 12 (1st Cir. 2003).
I find that defendants’ litigation conduct for more than a year as described above is
completely inconsistent with Hankey’s contractual right to arbitration. The delay in asserting the
contractual right to arbitration until now appears to be intentional, as deduced from defendants’
affirmative invoking of the court’s jurisdiction and their active use of the discovery mechanisms
of the court. Moreover, defendants do not attempt to explain or justify their delayed decision to
claim arbitration. The undue delay by defendants satisfies the first element of a finding that
arbitration has been waived by litigation conduct.
Because there is a strong federal and state policy in favor of arbitration, “‘mere delay in
seeking [arbitration] without some resultant prejudice’ is insufficient for a finding of conductbased
waiver.” Joca-Roca Real Estate, LLC v. Brennan, 772 F. 3d 945, 948 (1st Cir. 2014),
quoting Creative Solutions Grp., Inc. v. Pentzer Corp., 252 F. 3d 28, 32 (1st Cir. 2001). The
required showing of prejudice, however, is “tame at best.” Id. at 949, quoting Rankin v. Allstate
Ins. Co., 336 F.3d at 14. Prejudice may be inferred from the inordinate delay accompanied by
sufficient litigation activity. Id. In this case, Element points to its successful motion to dismiss
Hankey’s defamation claim. Element states that Hankey seeks to reintroduce that claim in a
pending motion to amend filed in this court, and would attempt to assert the defamation claim if
sent to arbitration. Element argues that it would be unfair for defendants to get a second bite at
the (defamation) apple in an arbitration proceeding when this court has already ruled against him.
In addition, Element notes extensive efforts regarding discovery and the likelihood that the court
5
will be asked to issue orders for discovery in response to motions from both sides. Element
contends that moving the case to arbitration would hamper its efforts to obtain discovery because
discovery in arbitration is not as broad as under the Massachusetts Rules of Civil Procedure.
Finally, Element points to the litigation timetable negotiated and agreed to by the parties that
would be adversely affected by the moving to arbitration. I agree with Element’s arguments.
These facts are sufficient to show a modicum of prejudice, at least, to Element if this case were
stayed and arbitration ordered at this late date. Under the standard for determining whether
litigation conduct waives a party’s contractual right to arbitration, I find that defendants have
waived arbitration.
CONCLUSION
Defendants’ motion to stay action and to compel arbitration is DENIED.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
Date: August 14, 2017
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Posted by Stephen Sandberg - September 7, 2017 at 8:45 am

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Smith-Berry, et al. v. National Amusements, Inc., et al. (Lawyers Weekly No. 12-123-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
No. 2017-0491 BLS 1
TREMAYNE SMITH-BERRY and JESSA DAPRATO, individually and as class
representatives
vs.
NATIONAL AMUSEMENTS, INC. et al1
MEMORANDUM AND ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS
This motion presents an issue of apparent first impression; i.e., whether a movie theater
company must pay its hourly employees who work on Sunday and certain holidays one and onehalf
times their regular pay.
BACKGROUND
Plaintiffs bring this action as a putative class action on behalf of hourly employees at
Showcase Cinemas movie theaters. The named plaintiffs work as a wait staff employee and
bartender, respectively. First Amended Complaint (“FAC”) ¶¶ 5, 6. Both plaintiffs provide food
and beverage services to Showcase’s patrons. FAC ¶¶ 33, 35. The FAC alleges two counts
(Counts I and II) of violation of Massachusetts law regarding the handling of service charges or
tips. Count III of the FAC alleges violation of the Wage Act, G.L. c. 149, §§ 149, 150, for failure
to pay plaintiffs for work on Sunday and holidays at the rate of one and one half times their
regular hourly rate. This partial motion to dismiss concerns only Count III.
1 Cerco LLC, d/b/a Showcase Cinemas and Shari Redstone
1
The FAC asserts the following facts which, for purposes of this motion, I accept as true.
Defendants, referred to collectively as “Showcase”, operate a chain of movie theaters at eleven
locations in Massachusetts. The movie theaters are open for business on Sundays and holidays.
Plaintiffs are employed by one or both of the corporate defendants to work in the movie theaters.
Showcase regularly requires plaintiffs and other hourly employees to work on Sunday and
holidays. Showcase does not pay hourly employees the premium of one and one half times their
regular hourly rate (“premium pay”) for their work on Sunday and holidays.
When the movie theaters are open for the business of exhibiting motion pictures, they sell
food and beverages to patrons for consumption on the premises. FAC ¶ 38. The food items
include fresh popped popcorn, chips, candy, ice cream novelties, confectionaries, fountain soft
drinks and alcoholic beverages. Id.
ANALYSIS
A. Sunday Pay
The resolution of the issue regarding pay for work on Sunday requires an analysis of the
statutory scheme. G.L. c. 136 is commonly referred to as the Sunday closing or “Blue” laws.
Zayre Corp. v. Attorney General, 372 Mass. 423, 424 (1977). “The general philosophy of the
various enactments and versions of the Sunday law up to and including the present G.L. c. 136 is
to begin with a general prohibition of all work, labor and amusements on Sunday and then to
engraft on that general prohibition the exemptions which the Legislature deems required by
necessity or the general purpose of the statute.” Id. at 429. A the time of the decision in Zayre,
there were 49 exemptions in c. 136, § 6, thirteen of which concerned the performance of retail
sales. Id. at 431-432. The plaintiffs in Zayre were large and small retailers of various goods
2
challenging the constitutionality of exemptions authorizing some retail sale activity on Sunday
but not all. Their constitutional challenge failed.
Following Zayre, the Legislature enacted a fiftieth exemption. By St. 1977, c. 722, clause
(50) of c. 136, § 6 was enacted into law.2 That clause provides an exemption from the Sunday
closing law for “a store or shop” engaged in the “sale at retail of goods.” At the same time, the
Legislature imposed the requirement that a “store or shop which qualifies for exemption under
this clause [50] or under clause (25) or clause (27) and which employs more than a total of seven
persons” pay non-executive employees “at a rate of not less than one and one-half times the
employee’s regular rate.”
Of the 50 exemptions to the Sunday closing law that existed upon the passage by the
Legislature of St. 1977, c. 722, there are numerous exemptions for retail activity or the sale of
goods or services at retail. Nevertheless, the Legislature designated only three exemptions that
would trigger an obligation to pay premium pay for work on Sundays.3 Only an employee
working at an establishment that “qualifies for exemption” under clauses (25), (27) and (50) is
entitled to premium pay. G.L. c. 136, § 6 (50). For example, the exemption in clause (28) allows
the “retail sale of greeting cards and photographic films and the processing of photographic
films” on Sunday. G.L. c. 136, § 6 (28). Thus, a retail store selling greeting cards “qualifies for
exemption” under clause (28), not (50), and is not subject to the premium pay requirement.
Likewise, a restaurant, qualified to open on Sunday by clause (42), is not subject to the premium
2 There are now 55 exemptions in c. 136, § 6.
3 In 2003, the Legislature enacted exemption (52) applicable to the retail sale of alcoholic
beverages not to be drunk on the premises. Retail stores operating under that exemption must pay
premium pay for Sunday work.
3
pay requirement. That is because, applying basic principles of statutory construction requiring
that (a) the words of a statute should be given their plain meaning, and (b) subsections of a
statute should be interpreted harmoniously, it must be concluded that the Legislature intended
that a retail business authorized to operate on Sunday by a statutory provision other than clauses
(25), (27) and (50), is not required to pay premium pay. If the Legislature intended to require
premium pay for all retail activity allowed on Sunday, it would have attached the premium pay
requirement explicitly to all the clauses of c. 136, § 6 allowing retail business to operate on
Sunday.4 Instead, the Legislature elected to use the words “qualifies for exemption under this
clause” in clause (50)(emphasis added) to limit the application of the premium pay requirement.
The operation of movie theaters on Sunday and holidays is authorized by a separate
section of the General Laws. Under G.L. c. 140, § 181, local authorities may grant a license to a
movie theater “for the exhibition of motion pictures . . . seven days per week.” The Sunday
closing laws in c. 136 specifically recognize that the “exhibition of motion pictures by a movie
theater” on Sunday and holidays is governed by c. 140, § 181, and not by c. 136. See G.L. c. 136,
§ 4(8A). Consistent with that statutory structure, the operation of a movie theater is not
mentioned in any of the 55 exemptions authorized by c. 136, § 6. In short, the operation of a
movie theater on Sunday does not “qualify for exemption” under clauses (25), (27) or (50) of c.
136.
Given that there is no other statutory obligation to pay Sunday workers premium pay (the
4 The Attorney General appears to agree that only “[c]ertain retail establishments that
operate on Sundays are subject to” the premium pay obligation. Massachusetts Attorney General,
Working on Sundays and Holidays (“Blue Laws”), www.mass/gov/ago/doing-business-inmassachusetts/
workplace.gov. (Emphasis added).
4
statute allowing movie theaters to obtain a license for seven days per week does not impose a
premium pay obligation), Showcase succeeds on its argument that its operation as a movie
theater does not trigger the requirement to pay premium pay for work on Sunday.
But what is the effect of Showcase’s practice of selling food, snacks, confections, and
alcoholic beverages to movie goers for consumption on the premises? Plaintiffs argue that such
sales are “the retail sale of . . . soft drinks, confectioneries . . . dairy products” that come within
clause (25) of § 6.5 As a result, plaintiffs contend that Showcase’s sale of food and drink items
“qualifies for exemption” under clause (25).
Plaintiffs fail to recognize that Showcase’s sale of food and drink items is for
consumption on the premises. Therefore, it is “[t]he conduct of the business of . . . [a] common
victualler.” Such business qualifies for exemption under G.L. c. 136, § 6 (42), not clause (25).
As alleged in the FAC, plaintiffs serve food and drink to patrons of the movie theater to be
consumed on the premises. While there is no statutory definition of “common victualler” the
meaning is well established. “The words ‘common victualler,’ in Massachusetts, by long usage,
have come to mean the keeper of a restaurant or public eating house. . . . [providing] suitable
food for all purchasers who resort to the place where the business is carried on, for such
refreshment as is to be consumed upon the premises.” Commonwealth v. Meckel, 221 Mass. 70,
72 (1915). See also, Town of Wellesley v. Javamine, Inc., 21 Mass. L. Rptr. 12, *3 (Mass.
Superior Ct. 2006)(citing Meckel). Thus, as a common victualler, Showcase qualifies to do
business under clause 42 of c. 136, § 6 and is not subject to the premium pay requirement.
5 Clause (25) of G.L. c. 136, § 6 provides an exemption for “[t]he retail sale of tobacco
products, soft drinks, confectioneries, baby foods, fresh fruit and fresh vegetable, dairy products
and eggs, and the retail sale of poultry by the person who raises the same.”
5
Further, all of Showcase’s commercial activity on Sunday “qualifies for exemption” under
statutory provisions other than clauses (25), (27) and (50) of c. 136, § 6. That being so, there is
no statutory obligation to pay workers premium pay as a result of working on Sunday.6
B. Holiday Pay
The FAC alleges that plaintiffs are required to work “on holidays, including one or more
of the holidays listed in M.G.L. c. 136, § 13.” FAC ¶ 44. They do not receive premium pay for
such work. FAC ¶ 45. Thus, they sue to recover.
Section 13 of c.136 is in two paragraphs. In the first paragraph the statute says, in
essence, that the Sunday closing laws in c. 136, §§ 5 to 11 apply to legal holidays. Thus, because
a movie theater does not have to pay premium pay on Sunday, as concluded above, it does not
have to pay premium pay on most legal holidays.7
In the second paragraph of § 13, however, it is mandated that “[a]ny retail establishment”
pay employees time and one-half for work performed on three dates: January 1, the second
Monday of October and November 11. It is also mandated that the employer shall not force an
employee to work on those dates.
In Drive-O-Rama, Inc. v. Attorney General, 63 Mass. App. Ct. 769 (2005), the Appeals
Court distinguished between the statutory authority to operate on Sunday and the statutory
authority to open for business on the enumerated legal holidays in the second paragraph of § 13.
6 Of course, if a worker is employed for a work week longer than forty hours there is a
separate obligation to pay at a rate of time and one half. G. L. c. 151, § 1A.
7 Certain dates are excepted from coverage as legal holidays. For example, March 17 and
the third Monday in April are not subject to legal holiday pay governed by the Sunday pay
obligations.
6
The Court held that the second paragraph of § 13 requires premium pay for work in “any retail
establishment” on New Year’s Day, Columbus Day and Veteran’s Day, regardless of whether the
employer is, or is not, subject to premium pay requirements for workers on Sunday. Id. at 772 –
773. The establishment (Mill Stores) in Drive-O-Rama, Inc. operated a retail store on Sundays
and legal holidays. Mill Stores was open on Sundays because it qualified for exemption from the
Sunday closing laws under clause (29) of c. 136, § 6. Id. at 771. Because stores operating under
clause (29) are not subject to the premium pay requirement, Mill Stores argued that it should not
be obligated to pay premium pay on New Year’s Day, Columbus Day and Veteran’s Day. The
Appeals Court held that the statutory authority to operate on those enumerated holidays derived
solely from G.L. c. 136, § 13, and not from the Sunday closing laws. Accordingly, Mill Stores
was obligated to pay premium pay on those enumerated holidays even though it operated on
Sundays and other holidays without the obligation for premium pay. Id. at 771-772.8
The somewhat odd result of Drive-O-Rama (requiring premium pay on three dates but not
Sundays and other holidays) applies directly to the present case. As concluded above, Showcase,
like Mill Stores, is not obligated for premium pay under the Sunday closing laws. If Showcase is
a “retail establishment”, however, it, like Mill Stores, is obligated to pay premium pay to workers
on New Year’s Day, Columbus Day and Veteran’s Day.
According to the FAC, Showcase is engaged in two lines of business – – the sale of movie
tickets and the sale of food and alcohol for consumption on the premises. Plaintiffs do not
explicitly plead in the FAC that Showcase is a retail establishment. The word “retail” is not used
8 It is noted that the only issue before the Court in Drive-O-Rama was whether § 13
required premium pay. The Court, however, in analyzing that issue accepted, without discussion,
that the employer was not obligated to pay premium pay on Sundays or other holidays.
7
in the FAC. Instead, plaintiffs argue in their memorandum that the descriptions of Showcase’s
lines of business in the FAC are sufficient to state a claim that Showcase is a “retail
establishment.” The issue, therefore, is whether either the sale of movie tickets or the sale of food
and alcohol for consumption on the premises makes Showcase a “retail establishment.”
There is no definition in c. 136 of “retail establishment” or “retail.” Absent a definition,
statutory language should be given effect consistent with its plain meaning. Sullivan v.
Brookline, 435 Mass. 353, 360 (2001). Black’s Law Dictionary (rev. 9th ed. 2009) defines
“retail” as “[t]he sale of goods or commodities to ultimate consumers, as opposed to the sale for
further distribution or processing.” “Goods” is defines as “[t]angible or movable personal
property other than money.” Similarly, the American Heritage Dictionary defines “retail” as
“[t]he sale of goods or commodities in small quantities to the consumer.” Am. Heritage
Dictionary 1186 (4th ed. 2002). Both of these sources suggest that the term “retail” is to be given
a broad definition. There is no limitation placed on the kinds of goods or commodities that can
be sold, nor does the definitions distinguish food and beverages from other types of retail items
that can be sold.9
With respect to Showcase’s operation as a restaurant (common victualler) or tavern
(provider of alcoholic beverages for consumption on the premises), the Supreme Judicial Court
9 Plaintiffs note that Massachusetts sales tax law defines “retail sale” broadly to include
“a sale of services or tangible personal property or both for any purpose other than resale in the
regular course of business.” G.L. c. 64H, § 1. A “retail establishment” includes “any premises in
which the business of selling services or tangible personal property is conducted, or, in or from
which any retail sales are made.” Id. The definition of “retail sale”, however, does not include
“sales of tickets for admissions to places of amusement and sports.” Id. Reliance on these
definitions is made unnecessary by the holding of the Supreme Judicial Court in Moriarty,
discussed infra.
8
has definitively held that such operations are “retail” and the premises are a “retail
establishment.” In Commonwealth v. Moriarty, 311 Mass. 116 (1942), the Court determined that
a tavern was a “retail store” within the statute (then existing) requiring that “retail stores” be
closed between 7 a.m. and 1 p.m. on Columbus Day. Id. at 121. The Court considered the
argument that the sale of food for consumption on the premises is not a sale at retail. The
argument was rejected. Id. at 123 (“The [tavern], therefore, is not aided by any analogy of a
tavern to a restaurant”). Moriarty is direct precedent for holding that Showcase’s food and
beverage sales make it a “retail establishment” for purposes of the second paragraph of § 13.10
Consequently, plaintiffs’ claims for payment of premium pay for work on New Year’s Day,
Columbus Day and Veteran’s Day may not, under the authority of Drive-O-Rama and Moriarty,
be dismissed.
10 Because Showcase is a “retail establishment” for purposes of § 13 as a result of its sales
of food and alcohol, it is unnecessary to decide on this record whether the sale by Showcase of
movie tickets also makes Showcase a “retail establishment” under that statute.
9
CONCLUSION
For the reasons stated, defendants’ motion to dismiss Count III of the FAC (Paper No. 14)
is allowed, in part, and denied, in part. The motion is allowed with respect to claims for premium
pay for work performed on Sundays and holidays other than New Year’s Day, Columbus Day
and Veteran’s Day. The motion is denied with respect to claims for premium pay for work
performed on those three enumerated holidays.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
Date: August 29, 2017
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Posted by Stephen Sandberg - September 7, 2017 at 5:11 am

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Therapy Resources Management LLC, et al. v. Whittier Health Network, Inc., et al. (Lawyers Weekly No. 12-120-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
No. 1784CV0942 BLS 1
THERAPY RESOURCES MANAGEMENT LLC, et al
vs.
WHITTIER HEALTH NETWORK, INC., et al
ORDER ON CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT
Count IV of the Amended Complaint seeks a declaratory judgment to the effect that
defendants (referred to collectively as “Whittier”) are barred from seeking indemnity from
plaintiffs (referred to collectively as “Therapy”). Whittier has not yet answered the amended
complaint or asserted a counterclaim, but the record is clear that Whittier believes it has the right
to be indemnified by Therapy for litigation costs and a settlement payment incurred by Whittier
in connection with an investigation and lawsuit under the False Claims Act (“FCA”), 31 U.S.C.
§3729.1 There is an actual controversy between the parties regarding whether, as a matter of law,
Whittier can obtain indemnification under its contracts with Therapy which state that “[Therapy] shall indemnify and hold [Whittier] harmless from and against all claims, demands, costs,
expenses, liabilities and losses (including reasonable attorney’s fees) which may result against
[Whittier] as a consequence of any malfeasance, negligence . . . caused . . . by [Therapy] . . . .”
1 Whittier has effectively obtained some indemnification by refusing to pay invoices for
services rendered by Therapy. Thus, Therapy is the plaintiff in this action seeking recovery for
non-payment of invoices. The claim for indemnification by Whittier is anticipated because such
claim is the stated basis for Whittier’s refusal to pay the invoices.
1
Therapy’s argument for summary judgment on Count IV is based on the following
undisputed facts. The losses that Whittier wants indemnification for arise from the fact that
Whittier was sued, along with Therapy, for fraud under the FCA. The suit was brought by a
former employee of Therapy. There was also another suit by a different former employee of
Therapy against Therapy alone. The filing of the suits triggered an investigation by federal
officials. The gist of the FCA claims was that Whittier and Therapy knowingly presented false
claims for Medicare reimbursement. Both Whittier and Therapy denied the allegations.
At some point, the claims against Therapy were dismissed. It is unclear from the record
whether the dismissal was a result of a settlement or whether it was a dismissal without
prejudice. Sometime later, Whittier entered into a settlement with the FCA plaintiffs, including
the government, requiring, among other things, payment by Whittier of $ 2.5 million. Therapy
was not a party to the settlement. FCA claims against Therapy were not released in the Whittier
settlement.
The settlement agreement alleges that Whittier failed “to take sufficient steps to prevent
[Therapy] from engaging in a pattern and practice of fraudulently inflating the reported amounts
of therapy provided to Medicare Part A patients.” There is no admission of liability by Whittier
in the settlement agreement and there was no finding by a court or jury that Whittier engaged in
the fraudulent conduct alleged.
DISCUSSION
Therapy seeks a declaration that the indemnity provision, quoted above, is unenforceable
as against public policy and the FCA. In short, Therapy argues that indemnification of Whittier
would relieve it of liability for its own fraud. The parties concede that if Whittier had been found
2
by a court to have committed fraud, or admitted to fraud, case law under the FCA would prohibit
Whittier from obtaining indemnification. Therapy argues that the FCA preempts state law claims,
based on contract or common law, for indemnification that would offset liability for fraud.
But Whittier asserts that it did not commit fraud. There has been no finding or admission
that it committed fraud. The issue presented is identical to what was presented to the United
States Court of Appeals for the Ninth Circuit in Cell Therapeutics, Inc. v. Lash Group, Inc., 586
F. 3d 1204, 1205 (2009)(“But what happens when a target defendant settles with the government
and the relator and then seeks recovery against a third party for contractual indemnity and
independent claims?”). The facts of Cell Therapeutics are closely aligned with the facts in the
present case.
The Court in Cell Therapeutics answered its rhetorical question by holding that a
defendant settling FCA claims with no admission of liability is free to seek indemnification from
a third party. Id. at 1212. “In resolving disputes under the FCA, we have recognized ‘the general
policy in favor of encouraging parties to settle disputes.’ Treating a qui tam settlement as a de
facto finding of liability would inevitably chill the settlement spirit.” Id. (Citation omitted). After
considering both the policy behind the FCA and principles of issue and claim preclusion, the
Court reversed a lower court’s dismissal of a settling defendant’s claim for indemnification. Id. at
1213.
I find the reasoning and conclusion in Cell Therapeutics to be thoroughly persuasive. The
cases cited by Therapy are all distinguishable from the facts of both Cell Therapeutics and the
present case. Whittier should not be precluded from making a claim for indemnification merely
because it settled the FCA case. Ultimately, whether Whittier can recover indemnification will
3
depend on its ability to prove its contract claim (whether Whittier’s losses were “as a
consequence of any malfeasance” of Therapy). Therapy, however, will have the opportunity to
prove that Whittier’s conduct was fraudulent. If so, Whittier may be precluded from
indemnification. These issues are not ripe for determination on the present record.
CONCLUSION
The cross-motions for partial summary judgment on Count IV of the amended
complaint (Docket Nos. 20 and 21) are DENIED.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
Date: August 3, 2017
4 read more

Posted by Stephen Sandberg - September 6, 2017 at 6:26 pm

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O’Connor Constructors, Inc. v. HVAC Compensation Corporation, et al. (Lawyers Weekly No. 12-099-17)

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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 acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, or (iii) for any transaction from which the . . . director derived an improper personal benefit.” HVAC’s organizational documents do not purport to limit its Director’s liabilities in a manner inconsistent with this statutory requirement.
The Board of Directors of HVAC directs the management of its affairs including determining the contributions ( i.e., premiums) to be paid by the members each year for their workers’ compensation coverage in accordance with rates established by the Division of Insurance, administering and managing HVAC’s funds, including its reserves, and, of note in this
3
case, purchasing insurance and reinsurance. In practice, the Board retained a professional, third-party administrator, FutureComp, to manage its business and affairs.
Of importance to this case is the manner in which HVAC distributed its surplus, i.e., funds maintained by HVAC in excess of the reserves that its actuaries determined would be needed to pay claims that have been asserted by covered employees, as well as claims that are estimated to be asserted for incidents occurring during a “fund year” but which have not yet been reported, so-called IBNR. To the extent that premiums collected from members for a given year exceed claims paid and actuarially estimated claims that will have to be paid in the future, plus expenses incurred in operating the SIG, that year has a surplus. If claims paid and estimated to be paid and operating expenses with respect to a fund year exceed the premium collected, that year is running a deficit. According to Section 12 of the Indemnity Agreement (as amended),
Any Positive Balance of the Group resulting from overall loss experience may be available as a policyholder dividend . . . or used as a reserve in accordance with a Positive Balance Provisions Plan as set forth in Schedule 3 or as adopted and amended from time to time by the Board of Directors of the Group in its sole discretion. In accordance with Section 25P of Chapter 152 of the Massachusetts General Laws, a refund for any Fund Year shall be paid only to those employers who remain participants in the group until December 31st of the Fund year. Payment of a refund based on a previous Fund Year shall not be contingent on continued membership in the group after that Fund Year.
The Division of Insurance has issued regulations that create a formula pursuant to which a SIG may distribute surplus from any fund year to its members. In general, it permits the surplus to be distributed ratably in four installments over five years with the first distribution made two years after the close of the fund year. For a fund year with a surplus, each HVAC member receives a percentage of the surplus determined by the amount of the premium that it paid that year multiplied by that member’s loss ratio for that year—this is referred to as the member’s “combined ratio.” In consequence, the amount, if any, that any member receives for a surplus year is dependent on that member’s own premium amount and loss experience for that year.
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If a fund year has a deficit, HVAC assesses the deficit to its members for that year using the same statutory formula that is used to calculate distributions. As with distributions, deficits begin to be collected two years after the close of a fund year. Once a year, usually in November or December, HVAC members who are in a negative position receive an invoice for payment due; members who have a net surplus are issued a dividend check in January. The amount of surplus or deficit for any given fund year may change from year to year as claims develop and are paid and IBNR recalculated. Surplus calculations vary most in the first two years following the end of the fund year, but they may continue to change in subsequent years.
HVAC has always calculated and paid dividends or assessed deficits based on individual fund year results. As noted above, a former member is entitled to the distribution of surplus for any year in which it was a member, if there is surplus available to distribute. Similarly, a former member could be required to contribute additional amounts to cover a deficit with respect to any period in which it was a member of the SIG. HVAC has also purchased reinsurance and charged its costs to its members on a fund year by fund year basis.
O’Connor became a member of HVAC in 1993, at that point HVAC had six members. By 2004, it had increased to ten members. Effective December 31, 2009, O’Connor withdrew from HVAC, at which point HVAC had only seven members. For the last several years that O’Connor was a member of HVAC, it paid significantly higher premiums than any other member. For example, in 2009 when HVAC had eight members, O’Connor’s premium was almost four times that of the next highest premium and amounted to approximately 44% of all premiums paid that year. After 2009, O’Connor no longer had a representative on the HVAC Board of Directors and, therefore, no vote on any matter affecting HVAC’s management or affairs.
In the years 2007 through 2010, O’Connor was required to pay substantial deficit
5
assessments in respect of earlier years, approximately $ 1 million in the aggregate. Thereafter, its accounts moved to surplus status, and it received a dividend in January, 2012. An internal memorandum prepared in May, 2012 suggested that O’Connor was in a surplus position of $ 450,000, a number which is, in effect, a snapshot of surplus at a given moment and was principally based on favorable development for 2008 and 2009, although these fund years were not then fully available for distribution under the formula described above. At the same time, the 2010 and 2011 fund years were developing adversely to the continuing HVAC members such that they reflected deficits of nearly $ 400,000 and $ 261,000, respectively, as of the end of 2011.
O’Connor’s departure and the deficits for 2010 and 2011 placed HVAC in a difficult situation in which its continuing viability was at issue. In consequence, it began to explore the option of purchasing an LPT to insure all additional claim exposure for HVAC. Quotes were received from Safety National Casualty Corporation (Safety) to purchase LPT for various years. “Option 1” sold off fund years 1992 through 2009. The cost of this policy was $ 1,899,104. HVAC, however, was holding reserves for those years only in the amount of $ 1,433,120. Therefore, this LPT would cost $ 465,984 in excess of the reserves determined by its actuaries as necessary to cover anticipated claims for those years. An analysis was done that determined the cost of the LPT for each fund year being sold, the amount by which that cost exceeded the reserves for that year, and then assigned a percentage of that cost to each member based on a fraction, the numerator of which was that member’s premium for that year and the denominator was the aggregate premiums collected for that year. The surplus for any year was left untouched and therefore available for distribution as dividends. One Director expressed concern that this approach would be very costly, essentially causing HVAC to incur an immediate expense of $ 465,984 (the cost of the LPT in excess of reserves for the years sold off) without addressing the
6
deficits that existed for fund years 2010 and 2011. FutureComp then requested additional quotes for LPTs that covered 2010 and 2011.
At a September, 2012 HVAC Board meeting, FutureComp presented the additional quotes and a new method for paying for the LPT policy. Under this payment approach, all of the surplus held in HVAC’s accounts would be used to purchase the policy, without regard to the fund year in which the surplus was accrued. Because this would effectively eliminate nearly all of HVAC’s assets, all members and former members for the years “sold off” would be assessed a liquidity deficit. No consideration was given to the fact that operating costs and payment of current claims would be with respect to years in which members who terminated prior to January 1, 2011 had no possible liability, as all of the years in which they had been members had been sold off. FutureComp referred to this method of purchasing the LPT policy as the “All Assets” approach, to be distinguished from the approach that looked at the costs of purchasing the LPT policy on a year by year and member by member basis, which it called the “Strict Assessment” approach.
On November 14, 2012, the Directors voted to purchase an LPT from Safety selling off fund years 1992 to 2010 using the “All Assets” approach, the policy to cover all claim payments due in respect of those years after July 27, 2012. The cost of the LPT was $ 1,855,938. Because this transaction was financed with surplus funds, it created a liquidity deficit of $ 164,750 for fund years 2011 and 2012 (which had not been sold). The Directors therefore assessed a liquidity deficit pro rata to members and former members. O’Connor’s assessment was $ 55,931. Because the LPT covered all claims paid after July 27, 2012 for fund years 1992-2010 and the policy could not be made operational until May 22, 2013, the LPT carrier refunded to HVAC $ 504,332 for claims that HVAC paid during that period in respect of claims now covered by the LPT.
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O’Connor received no credit for that refund.
On January 13, 2013, the Division of Insurance approved the transaction. O’Connor was not informed about the transaction prior to its closing and was not given the opportunity to present its position to the Division concerning the inclusion of fund year 2010 in the LPT or the use of the All Asset method to purchase it. But for the purchase of the LPT, O’Connor would have been due a dividend of $ 185,647 in January, 2013 closing out all fund years through 2007, 50% of its surplus for 2008 and 33% of its surplus for 2009. If the LPT had been purchased using the Strict Assessment Approach, O’Connor would have been entitled to $ 290,000 return of its surplus, net of assessments for the cost of the LPT in excess of reserves for the years in which it had been a HVAC member. Conversely, in December, 2012, continuing HVAC members would have been assessed deficits because fund year 2010 was, as noted above, in a substantial deficit position. Following the transaction, an employee of FutureComp wrote in an email: “Overall, there is still a great story. The members were going to assess themselves anyway, with the end result of O’Connor getting a large dividend. This way, they are only assessing themselves to meet the payment of the LPT to get rid of all the ‘bad years.’”
DISCUSSION
Breach of Contract
O’Connor argues that while the By Laws authorized the Board to purchase insurance, and it concedes that the LPT is a form of insurance, the Indemnity Agreement effectively required that the cost of that insurance be charged to members on a fund year by fund year basis, which is the way reinsurance had been purchased by HVAC in the past. Furthermore, when the concept of purchasing the LPT was first investigated, the cost to each member was actually calculated
8
using the “Strict Assessment” method, i.e., year-by-year and member-by-member. It was only when one Director questioned the value of the proposed LPT to HVAC and his company that FutureComp asked for quotes that covered the “bad years” and came up with the “All Asset” option. O’Connor contends that use of the All Asset approach, and using those assets to purchase LPT for a year in which O’Connor was not a member, breached the Indemnity Agreement.
At oral argument on this motion, the court asked counsel for O’Connor to identify the contract provision that HVAC breached in purchasing the LPT using the All Asset approach. O’Connor pointed to Section 12 of the Indemnity Agreement (quoted above) and Schedule 3 appended to it. Schedule 3 states, in relevant part,
The Board of Directors of HVAC . . . will, after the end of each Fund Year, determine the Positive Balance available for distribution to the Members as a return of premium . . . . The Positive Balance shall be determined after appropriate allowance is made for contingency reserves.
The Positive Balance shall be distributed to Members based upon each Member’s combined ratio (losses and expenses/earned premium).
According to O’Connor, the Directors voted on the amount of surplus to be distributed for fund years through 2009, and were therefore contractually obligated to pay that surplus to O’Connor, when they decided to use the surplus to purchase the LTP, without regard to the cost of the LPT for each year being sold off. O’Connor argued that the language in Section 12 of the Indemnity Agreement that expressly stated that “Any Positive Balance of the Group resulting from overall loss experience may be available as a policyholder dividend, . . . or used as a reserve in accordance with a Positive Balance Provisions Plan as set forth I Schedule 3 or as adopted and amended from time to time by the [Directors] in its sole discretion,” did not authorize the Directors to decide to use surplus from one fund year to cover claim expenses with respect to another year, when the Directors had previously voted to distribute that surplus to the members
9
according to each member’s combined ratio. (emphasis added)
The court finds that the Indemnity Agreement and By Laws, which constitute the contract among the members, is ambiguous with respect to the question presented. See Citation Ins. Co. v. Gomez, 426 Mass. 379, 381 (1998). In particular, it is ambiguous when applied to the circumstances presented by this case in which LPT insurance was purchased in late 2012 with respect to all of HVAC’s years of operation through 2010. See, e.g., Nelson v. Cambridge Mut. Fire Ins. Co., 30 Mass. App. Ct. 671, 673-674 (1991) (Where the court noted that words that are otherwise clear may be ambiguous as applied to certain subject matter.) For example, it may be that the Directors have the authority to use all available surplus to respond to a catastrophic loss, but not to take surplus from one year to pay claims associated with another year that are not out of the ordinary. In this case, the purchase of the LPT created a substantial expense for HVAC, but it was the result of a business decision not, as this court understands the facts, a unique and unanticipated loss. While the court doubts that evidence exists as to the intention of the members when the Indemnity Agreement was drafted, evidence of the manner in which these provisions of the Indemnity Agreement were applied in the past or are being applied in a manner which is consistent with industry practices might elucidate contract meaning. See Browning-Ferris Ind. Inc., v Casella Waste Management of Mass., Inc. 70 Mass. App. Ct. 300, 309 (2011) (“There is no surer way to find out what the parties meant, than to see what they have done”).
Moreover, while the question of whether HVAC’s purchase of the LPT using the All Assets method constitutes a breach of contract is a very close question, as discussed below, the claim for breach of fiduciary duty clearly involves disputed questions of fact and must proceed to trial. The evidence to be presented on this breach of contract claim is very much the same as that which will be presented on the breach of fiduciary duty claim. The court finds that while
10
questions of law rather than fact are more predominant and central to this breach of contract claim, it is better resolved after the court has had the benefit of a trial addressing questions of how the Directors came to choose this approach to resolving the issues confronting HVAC by O’Connor’s decision to withdraw from the SIG.
Breach of Fiduciary Duty
As noted, HVAC is a not-for-profit corporation organized under Chapter 180 of the General Laws and, therefore, each Director may be liable to a member “ (i) for any breach of the . . . director’s duty of loyalty to the corporation or its members, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, or (iii) for any transaction from which the . . . director derived an improper personal benefit.” Although, effective December 31, 2009, O’Connor ceased to be a member of HVAC, the Directors still controlled funds in which O’Connor had an interest under Section 12 of the Indemnity Agreement. (“Payment of a refund based on a previous Fund Year shall not be contingent on continued membership in the group after that Fund Year.”) Additionally, their management of HVAC had the capacity to cause O’Connor to incur additional liabilities with respect to matters relating to fund years in which O’Connor was a member. (“A member of a group, . . . , who elects to terminate its membership . . . shall remain jointly and severally liable for the workers’ compensation obligations of the group and its members which were incurred during the . . . terminated member’s period of membership;” and, “[a] group member is not relieved of its workers’ compensation liabilities incurred during its period of membership except through payment by the group or the member of required workers’ compensation benefits.” G.L. c. 152, § 25K (3) and (4).) In consequence, the Directors continue to owe fiduciary duties of loyalty to a
11
departed member and an obligation not to take action to benefit their own interests at the expense of terminated member, to the extent their actions implicate the former member’s interest in surplus or the creation of additional liabilities for the former member.2
Whether, in this case, the course of action adopted by the Directors breached their fiduciary obligations to O’Connor involve a number of disputed issues of fact. Certainly, Directors owe fiduciary duties to all members and HVAC, as well as O’Connor. They may adopt a course of action, in good faith, which is a reasonable approach to a business problem and in the best interests of the enterprise and its members, generally. See, e.g., Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842, 851-852 (1976). Whether they did that in this case when they purchased the LPT using the All Assets approach, and included fund year 2010 in the liabilities sold off, involves a number of disputed issues of fact that can only be resolved after trial.3
Chapter 93A
It has long been recognized that intra-enterprise disputes will not support claims of violation of Chapter 93A. See Linkage Corp. v. Trustees of Boston University, 425 Mass. 1 n.33, cert. denied 522 U.S. 1015 (1997) and cases there cited. This case involves quintessentially intra-corporate action. It does not arise out of an arms-length commercial transaction between O’Connor and HVAC or its Directors. Rather, the issue is whether HVAC’s decision to purchase an LPT policy using the All Assets method constituted a breach of its internal, organizational documents or a breach of fiduciary duty on the part of the Directors to treat O’Connor fairly. See
2 Indeed, in this case the purchase of the LPT led to the assessment of a liquidity assessment against O’Connor.
3 For example, for reasons that are not well explained, it seems that the LPT covering 2010 was less expensive than that which ended with 2009. This could be because the quote for the 2009 LPT was received well before the quote for the LPT that was purchased and might have cost much less (claims are constantly being paid and reducing the exposure to the insurer issuing the LPT policy) if the quotes were as of the same date. Issues such as these require factually development.
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Ray-Tek Services, Inc. v. Parker, 64 Mass. App. Ct. 165, 170-171 (2005). In consequence, the claim for violation of Chapter 93A must be dismissed.4
ORDER
For the foregoing reasons, HVAC’s motion for summary judgment is ALLOWED, in part, and DENIED, in part. Count VII is dismissed; Counts I and VI shall proceed to trial.
_______________________
Mitchell H. Kaplan
Justice of the Superior Court
Dated: July 27, 2017
4 HVAC argues that the claims asserted against it should be dismissed because the Division of Insurance approved the transaction. There is, however, no indication that the Division gave any thought to whether the transaction was fair to all members or former members or breached a contractual obligation among the members. There is no suggestion that it had statutory authority to do that. Presumably, the Division was only concerned with whether HVAC would be financially able to meet its workers’ compensation benefit obligations following the transaction. The court finds that the Division’s approval of the transaction is not relevant to the claims asserted by O’Connor against HVAC or the Directors. read more

Posted by Stephen Sandberg - August 31, 2017 at 10:56 pm

Categories: News   Tags: , , , , , , , ,

Van Liew v. Eliopoulos v. Hands on Technology Transfer, Inc., et al. (Lawyers Weekly No. 11-109-17)

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-567                                        Appeals Court

ROLAND VAN LIEW  vs.  PHILIP ELIOPOULOS; Hands on Technology Transfer, Inc., third-party defendant.

No. 16-P-567.

Middlesex.     January 5, 2017. – August 25, 2017.

Present:  Green, Meade, & Blake, JJ.

Libel and Slander.  Constitutional Law, Libel and slander.  Damages, Libel, Emotional distress, Remittitur.  State Ethics Commission.  Conflict of Interest.  Emotional Distress.  Practice, Civil, Judicial discretion, Instructions to jury. read more

Posted by Stephen Sandberg - August 25, 2017 at 4:39 pm

Categories: News   Tags: , , , , , , , ,

Zelby Holdings, Inc. v. Videogenix, Inc. (Lawyers Weekly No. 11-106-17)

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-874                                         Appeals Court

ZELBY HOLDINGS, INC.  vs.  VIDEOGENIX, INC.

No. 16-P-874.

Norfolk.     February 10, 2017. – August 18, 2017.

Present:  Green, Milkey, & Neyman, JJ.

Negotiable Instruments, Note, Payment.  Uniform Commercial Code, Payment on negotiable instrument.  Payment.  Limitations, Statute of.  Practice, Civil, Motion to dismiss, Statute of limitations.  Common Law.  Contract, Unjust enrichment.  Unjust Enrichment. read more

Posted by Stephen Sandberg - August 19, 2017 at 6:48 am

Categories: News   Tags: , , , , , ,

Tam, et al. v. Federal Management Co., Inc., et al. (Lawyers Weekly No. 12-093-17)

Posted by Stephen Sandberg - August 4, 2017 at 12:36 pm

Categories: News   Tags: , , , , ,

Tam, et al. v. Federal Management Co., Inc., et al. (Lawyers Weekly No. 12-093-17)

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPERIOR COURT

CIVIL ACTION

  1. 13-02347-BLS1

SIEW-MEY TAM & another1

1 Mary Jane Raymond

2 d/b/a The Schochet Companies

3 Richard Henken, Peter Lewis, and David Flad

4 The individual defendants are alleged to be statutorily liable for FMC’sWage Act violations.

5 The defendants have also filed a separate motion for summary judgment on the claims asserted by Tam.  That motion remains pendingand is not addressed in this Memorandum of Decision.

vs.

FEDERAL MANAGEMENT CO., INC.2 & others3

MEMORANDUM OF DECISION AND ORDER ON

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

AGAINST PLAINTIFF MARY JANE RAYMOND

Plaintiffs Siew-Mey Tam and Mary Jane Raymond were formerly employed by Federal Management Co., Inc. (FMC) as property managers.  Following the termination oftheiremployment, they brought this action against FMC, Richard Henken, David Flad, and Peter Lewis4alleging that they were misclassified as exempt employees under G.L. c. 151, § 1A and FMC failed to pay them for overtime hours worked.  The case is presently before the Court on the defendants’ motion for summary judgment dismissingthe claims assertedagainst themby Raymond.5 For the following reasons, the motion is ALLOWED. read more

Posted by Stephen Sandberg - August 3, 2017 at 3:08 pm

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Niles v. Huntington Controls, Inc., et al. (Lawyers Weekly No. 11-100-17)

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-229                                        Appeals Court

ADRIAN NILES  vs.  HUNTINGTON CONTROLS, INC., & another.[1]

No. 16-P-229.

Norfolk.     January 12, 2017. – July 31, 2017.

Present:  Kafker, C.J., Hanlon, & Agnes, JJ.

Practice, Civil, Summary judgment. Labor, Public works, Wages. Public Works, Wage determination. Administrative Law, Wage administration.

Civil action commenced in the Superior Court Department on November 22, 2013. read more

Posted by Stephen Sandberg - July 31, 2017 at 3:34 pm

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