Posts tagged "Inc."

SCVNGR, Inc. v. Punchh, Inc. (Lawyers Weekly No. 10-179-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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



Suffolk.     September 6, 2017. – November   , 2017.

Present:  Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ.

Practice, Civil, Motion to dismiss.  Jurisdiction, Personal, Nonresident, Long-arm statute.  Due Process of Law, Jurisdiction over nonresident.

Civil action commenced in the Superior Court Department on February 19, 2016.

A motion to dismiss was heard by Mitchell H. Kaplan, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. read more

Posted by Stephen Sandberg - November 8, 2017 at 4:16 pm

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Wildlands Trust of Southeastern Massachusetts, Inc., et al. v. Cedar Hill Retreat Center, Inc., et al. (Lawyers Weekly No. 09-034-17)

On July 13, 2017, the parties were before this Court on the Plaintiffs’ Motion to Compel Discovery and the Defendants’ Motion for a Protective Order. Defendants argued that the discovery sought was beyond the scope of what was at issue in this lawsuit and that the plaintiffs’ requests were unduly burdensome and amounted to harassment. This Court denied the motion from the bench, with only a brief explanation of its reasons by way of a margin note. Plaintiffs now move to reconsider and/or clarify this Court’s earlier ruling.
Although initially skeptical of this request, this Court is now convinced that clarification is indeed required. Although plaintiffs are not entitled to the broad discovery they had originally sought (which was unnecessary and unduly burdensome), this Court was wrong to deny any discovery sought by their Motion to Compel. It is also apparent that the parties may have interpreted that earlier order almost as if it were a dispositive motion and that the discovery ruling meant that certain parts of plaintiffs’ Complaint were not properly before this Court. This Court did not anticipate or intend that and now wishes to correct that misimpression. The
Motion to Reconsider is therefore ALLOWED, with the following offered by way of explanation.
This is an action seeking to enforce a Conservation Restriction (CR) imposed on real property located in Duxbury, Massachusetts (the Premises). The parties to the CR are the plaintiffs Wildlands Trust of Southeastern Massachusetts, Inc. (Wildlands Trust) and the defendant Cedar Hill Retreat Center Inc., (Cedar Hill). In its Amended Complaint, 1 Wildlands Trust alleges that Cedar Hill is engaging in “commercial revenue generating activities…as well as other activities that are violative of the Conservation Restriction.” ¶ 7 of Amended Complaint; see also ¶48-50. In its Motion for a Protective Order (and again in opposing the Motion to Reconsider), Cedar Hill took the position that Wildlands Trust’s ability to complain of Cedar Hill’s activities on the Premises is far narrower – that is, that it is limited to a single event in September 8, 2012 when there was a wedding reception on the Premises. This did not involve a complaint that the Premises were being used to generate revenue.
In denying the plaintiffs’ Motion to Compel, this Court was of the view that a single violation was enough to entitle the plaintiffs to the equitable relief they sought, so that discovery that went beyond the September 8, 2012 incident was unnecessary. Because that violation was more narrowly drawn, however, the relief would not extend to revenue generating activities even if plaintiffs could prove that such activity violated the CR. Thus, to proceed simply on the basis of the September 2012 violation would not settle the dispute among the parties.
Cedar Hill argues that there is a legal impediment to Wildlands Trust seeking broader relief. It relies on Section IVA and IVF of the CR. Those provisions require that Wildlands Trust give notice to Cedar Hill of any claimed violation and that before resorting to court to seek
1 Although there is currently pending a motion to dismiss some counts in this Amended Complaint, the claim alleging breach of the Conservation Restriction is not the target.
equitable relief, the parties must mediate the dispute. Following the September 8, 2012 incident, Wildland notified Cedar Hill of the alleged violation, and (as required by the CR) mediation of the dispute began and continued over the next couple of years. During that time period, additional notices were sent by plaintiffs’ counsel that did raise complaints about the Premises being used for revenue generating activities, thus going beyond that which was at issue in the September 2012 event. Throughout this time period, a mediator was available to the parties, but his efforts were unsuccessful. On February 26, 2016, Wildlands Trust counsel sent a letter to counsel for Cedar Hill that cited the failed mediation and outlined the various violations that it alleges had taken place on the Property. See Exhibit F to Amended Complaint. Cedar Hill takes the position that only the September 8, 2012 is properly before the Court, since the other alleged violations have not been subject to mediation. This Court disagrees.
Clearly, the defendants were put on notice of the other activities that Wildlands Trust regards as a violation, including those activities that generated revenues. This Court understands that, strictly speaking, each and every event did not generate a notice and a separate and distinct mediation. However, activities that post-dated the original notice in 2012 occurred at a time when mediation was ongoing and was the subject of correspondence between the parties and their lawyers. The purpose of the mediation was to encourage the parties to try first to resolve their differences among themselves before they resorted to litigation. That purpose has been fulfilled.
Returning then to the discovery dispute, this Court now agrees with Wildlands Trust that it is entitled to find out more about what happened on the Premises, but also concludes that such discovery should be strictly circumscribed. Events occurring before September 8, 2012 would not seem to be particularly relevant nor could they be the basis for equitable relief, since the
mediation triggered by the September 2012 event had not yet begun. Apparently there have been over 300 events on the premises since 2012. The cost of third party discovery, including depositions of those involved in those events, would be quite expensive, harassing and in this Court’s view, entirely unnecessary, since there are other more efficient ways of determining the type of activity that occurred. Moreover, plaintiffs will be entitled to equitable relief provided that they show that the activity violates the terms of the CR; that there were a dozen violations of a similar nature or a hundred of them would seem to be largely irrelevant.
At the end of the hearing on the Motion to Reconsider, plaintiffs’ counsel made a proposal that in this Court’s view makes sense and that it now adopts: Cedar Hill shall produce for deposition a 30(b)(6) witness who has most familiarity with activities at the Premises since September 2012. This Court imposes an eight hour time limit on this deposition. In addition, Cedar Hill should be required to produce the spreadsheet of activities that it has maintained in the ordinary course of its business; although a partial spreadsheet has been produced, it was apparently incomplete and not a business record.
This Court does not envision any discovery beyond that. In particular, Wildlands Trust may not use contact information related to users of the Premises to notice any individual’s deposition without leave of court. This Court also does not see the need at this point for any third party discovery. As already stated, the number of violations is far less important than the nature of the activity conducted at the Premises. Plaintiffs should proceed with discovery with that in mind.
_______________________________ Janet L. Sanders
Justice of the Superior Court
Dated: October 16, 2017
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Posted by Stephen Sandberg - November 4, 2017 at 4:56 am

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Fortress, Inc. v. Massachusetts Emergency Management Agency (Lawyers Weekly No. 09-025-17)

No. 2014-3904 BLS 1
The sole theory of defendant’s motion for summary judgment is that plaintiff, Fortress,
Inc., did not qualify for special consideration of its bid for a contract because its principal place
of business was not in Massachusetts. If Fortress did not qualify for special consideration, its
claim for breach of contract against defendant, Massachusetts Emergency Management Agency
(“MEMA”), based on losing the bid, fails.
Whether Fortress’s principal place of business was in Massachusetts is the subject of
approximately 25 numbered paragraphs of the parties’ Joint Statement of Undisputed Facts
(“JSUF”). Notwithstanding the title of the JSUF suggesting that the facts are undisputed, at least
15 of those paragraphs are expressly disputed, either by MEMA or by Fortress. Thus, the issues
before the court are (a) whether the disputed paragraphs of the JSUF are properly supported as
required under Superior Court Rule 9A, and (b) whether the existence of the dispute is material
such that summary judgment must be denied.
This case arises out of a dispute between Fortress and MEMA regarding a Request for
Responses (“RFR”) issued by MEMA in May 2014. The RFR solicited bids to provide Standard
Operating Procedure manuals for the Commonwealth’s emergency operations centers. The RFR
indicated that it was targeted to solicit bids from small businesses participating in the
Commonwealth’s Small Business Purchasing Program (“SBPP”). The RFR stated that MEMA
intended “to evaluate bid responses from and to award a contract to a SBPP-participating
business(es) who submit a bid that meets or exceeds the solicitation criteria only.” If no SBPP
qualified vendors submitted a responsive bid, MEMA reserved the right to award the contract to
a non-SBPP business.
Fortress submitted a bid to the RFR as a SBPP qualified vendor. Fortress had previously
registered as a SBPP qualified vendor through an online form on the website of the
Commonwealth’s Operational Services Division (“OSD”). MEMA, however, awarded the
contract to a different vendor who was not qualified as a SBPP vendor. MEMA determined that
Fortress was not qualified as a SBPP vendor because its principal place of business was not in
Massachusetts. When Fortress’s bid was evaluated as a non-SBPP bid, it scored lower than the
winning bid of a different non-SBPP vendor.
MEMA moves for summary judgment on the single ground that Fortress did not qualify
as a SBPP vendor. Absent such qualification, MEMA argues that Fortress’s claim fails. The
reason Fortress does not qualify, according to MEMA, is because Fortress’s principal place of
business was not in Massachusetts.
The SBPP was established in 2010 by Executive Order No. 523. According to the
Executive Order, the purpose of the SBPP is “to support the existence and growth of small
businesses which meet the [SBPP]’s eligibility requirements by providing them with special
consideration within the Commonwealth’s procurement process for goods and services required
by state agencies.” The Executive Order authorized OSD to adopt and enforce policies to define
the parameters of the SBPP, including qualifying guidelines and definitions. OSD published
criteria for qualification that included, among other things, that the business have “its principal
place of business in Massachusetts.” According to testimony offered by MEMA, in May 2014,
OSD published a glossary of terms that defined “principal place of business” as “the location of
the head office of a business where the books are kept and/or management works.” MEMA,
however, did not provide for the record the publication in which the glossary allegedly appears.
Fortress disputes that OSD’s definition was published or in effect when Fortress applied for and
was listed as a SBPP vendor. According to the testimony of the CEO of Fortress, when Fortress
applied for SBPP certification he understood that the term “principal place of business” meant
“where the corporation’s books and records were kept or where the major decisions, business
decisions are made.”
While the definition of principal place of business is in dispute, the dispute is not
material. Both definitions are stated in the disjunctive. That is, both definitions reference where
the books of the company are kept or where either “management works” or “where the major
decisions are made.” Thus, if the jury concludes that Fortress’s management works in
Massachusetts or makes major decisions here, it would be justified to conclude that in 2014, at
the time of the bid, the principal place of business of Fortress was in Massachusetts.
MEMA concedes that the CEO of Fortress, Mr. Samano, testified that in 2014,
approximately 95% of Fortress’s business was in Massachusetts. JSUF ¶41. Yet MEMA disputes
JSUF ¶46, – – the statement by Fortress that “Ninety-five percent of Fortress’ business takes
place in Massachusetts or concerns Massachusetts-based clients.” MEMA disputes that statement
because “[t]he phrases “business takes place” or “concerns Massachusetts-based clients” are
vague characterizations, not fact.” Upon review, I find that JSUF ¶ 46 reflects precisely the
testimony of Mr. Samano regarding the facts of his business in 2014. MEMA offers no evidence
to the contrary.
It is true, as MEMA points out, that in 2014, Fortress was a Texas corporation with a
corporate headquarters in Mr. Samano’s home in Round Rock, Texas. The officers of Fortress,
Mr. Samano and his wife, lived in Texas. Fortress’s bank account was established through a
Texas address. But it is also true that in 2014, Fortress had an office in Massachusetts in an
employee’s home. Fortress had employees in Massachusetts and paid Massachusetts payroll
taxes. All of Fortress’s clients, with the exception of one, were Massachusetts state or local
agencies or private companies. Perhaps most relevant to the conclusion that a dispute exists with
respect to a material fact is the testimony by Mr. Samano. He testified that as the manager of
Fortress he worked in Massachusetts and made the major business decisions of the company in
Massachusetts. MEMA offers no testimony to the contrary.
In sum, there exists a genuine issue in dispute over the key factual question of MEMA’s
motion: Was Fortress’s principal place of business in Massachusetts, as defined or understood by
the parties? Consequently, MEMA’s motion for summary judgment is DENIED.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
Date: October 13, 2017
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Posted by Stephen Sandberg - November 3, 2017 at 11:02 am

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Malebranche, et al. v. Colonial Automotive Group, Inc., et al. (Lawyers Weekly No. 09-028-17)

Civ. No. 2016-3479-BLS2
on behalf of themselves and all others similarly situated,
This is a putative class action against a family of automotive dealerships and their parent company, Colonial Automotive Group, Inc. (CAG), alleging a failure to pay car sales employees compensation due under the Massachusetts wage and overtime laws. G.L.c. 149 §§ 148, 150. Plaintiffs Djhon Malebranche, Wiskinda Lamandier, Nicholas Pezzano, and Christopher Farias were employed as such salespersons. The First Amended Class Action Complaint (the Complaint) asserted both statutory violations (Counts I through V) and common law claims (Counts VI through IX). Defendants CAG and Gordon Chevrolet, Inc. (Gordon Chevrolet) moved to dismiss pursuant to Rule 12(b) (6), Mass.R.Civ. P. By the time of the motion hearing, the plaintiffs had voluntarily dismissed the common law claims, leaving only Counts I through V. As to those claims, CAG and Gordon Chevrolet contend that the Complaint fails to
allege facts sufficient to show that either of them ever employed plaintiffs.1 For the reasons set forth below, this Court concludes that the Motion must be Denied.
The Complaint sets forth the following allegations, which this Court assumes as true for purposes of this Motion.
CAG is a domestic corporation that manages and controls the business operations and employment matters for all of the sixteen automotive dealerships that comprise the “Colonial Automotive Group,” including Gordon Chevrolet, Colonial Nissan, Colonial Dodge, and Gordon Volkswagen. ¶¶ 5, 15. Gordon Chevrolet (formerly known as Gordon Chevrolet Geo) is a foreign corporation with a principal office in Acton, Massachusetts. ¶ 5. Colonial Nissan, Colonial Dodge, and Gordon Volkswagen are all domestic corporations with principal offices in Medford, Hudson, and Westborough, Massachusetts, respectively. ¶¶ 6-9. As sub-corporations or subsidiaries of CAG, the dealerships function as CAG’s agents. ¶ 36.
CAG and the dealerships all do business under the Colonial Automotive Group umbrella, and regularly sell cars to members of the public. ¶¶ 15-16, 34, 41. CAG controls, operates, oversees, and/or directs both the business and employment operations for the dealerships, including hiring and firing, creating and implementing payroll policies, overseeing employee performance, maintaining personnel and employment records, and controlling work schedules. ¶ 33. CAG also operates a general website for all of the dealerships, representing the group “as a single ‘dealership’ that actively employs over 600 employees.” ¶ 34.
1 Defendants also contended that the plaintiffs did not satisfy the statutory prerequisite of first filing a Wage Act complaint with the Attorney General’s Office. Plaintiffs have since amended the Complaint to eliminate this procedural issue.
With respect to Gordon Chevrolet, the Complaint alleges that Gordon Chevrolet assists CAG as its agent in the management and control of business and employment operations for all of the dealerships. ¶ 19. Additionally, plaintiffs Malebranche and Lamandier executed documents acknowledging their employment with Gordon Chevrolet. ¶¶ 49, 51. Malebranche’s document acknowledges an agreement with “Gordon Chevrolet Geo dba Colonial Chevrolet,” and Lamandier’s acknowledges an agreement with “Gordon Chevrolet Geo dba Colonial Nissan.” Id.
Malebranche, Lamandier, Pezzano and Farias were all employed as inside car salesmen who worked at different dealerships under the CAG umbrella. ¶¶ 1-4. They worked to sell cars on behalf of CAG and its dealerships. ¶¶ 1-4, 48, 50, 52-53. The defendants were aware that plaintiffs and other similarly situated sales employees often worked more than forty hours per week and on Sundays without receiving compensation required by the Wage Act. ¶¶ 55, 56, 62. This was the result of a “companywide practice and policy” of CAG and the dealerships. ¶ 54, 68.
In moving to dismiss Counts I through V, CAG and Gordon Chevrolet argue that the Complaint does not allege sufficient facts to show that either of them is an “employer” of the plaintiffs within the meaning of the Massachusetts Wage Act. The standard that this Court applies to this Rule 12(b) (6) motion is well established. Although the complaint must contain more than mere “labels and conclusions,” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), the ultimate inquiry is whether the plaintiff has alleged facts that are “adequately detailed so as to plausibly suggest an entitlement to relief.” Greenleaf Arms Realty Trust, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012) (reversing lower court’s allowance of 12
(b) (6) motion). Thus, that the complaint relies on facts that are improbable does not support dismissal so long as those allegations, “even if doubtful in fact,” “raise a right to relief above the speculative level.” Iannacchino, 451 Mass. at 636, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). This Court must draw all reasonable inferences from those factual allegations in favor of the nonmoving party. See Iannacchino, 451 Mass. at 625 n.7, citing Nader v. Citron, 372 Mass. 96, 98 (1977). Finally, it is important to note that employment status is ordinarily a question of fact that can rarely be decided on a motion to dismiss. See Morris v. Massachusetts Maritime Academy, 409 Mass. 179, 194 (1991) (affirming lower court’s denial of motion to dismiss in part because whether an employer-employee relationship existed under the Jones Act was a question of fact). This Court concludes that the Complaint satisfies the 12(b) (6) standard.
In a recent decision, the Appeals Court applied two tests to determine whether the defendant was an “employer” within the meaning the Massachusetts Wage Act. Gallagher v. Cerebral Palsy of Mass., Inc., 92 Mass. App. Ct. 207 (2017). The first is a statutory test analyzing the employer-employee relationship according to G.L. c. 149, § 148B. The focus there is whether the plaintiff provided services to the defendant. Id. at. 210, quoting Sebago v. Boston Cab Dispatch, Inc., 471 Mass. 321, 329 (2015). The second is a common law test. Under this second test, a defendant who was not the direct employer of the plaintiff would nevertheless be considered the “joint employer” of the plaintiff where it “retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer.” Id at. 214, quoting Commodore Health Ventures, Inc., 63 Mass.App.Ct. 57, 62 (2005). The Appeals Court noted that under either test, whether or not an employer-employee
relationship exists is ordinarily a question of fact and thus cannot easily be decided on a Rule 12(b) (6) motion.
Noting that the case before it was “not the ordinary case,” the court in Gallagher affirmed the lower court’s allowance of a motion to dismiss because an extensive regulatory framework governed the work arrangement at issue and the corresponding relationships between the various parties. The plaintiffs were personal care attendants who performed work in the homes of individual consumers covered by MassHealth. The defendant acted as a “fiscal intermediary agency” between MassHealth and the consumer. The Appeals Court concluded that the defendant was not an employer under the statutory test because the services were rendered to the individual consumers, not the defendant agency. The Court also concluded that the plaintiffs could not satisfy the common law test because the defendant did not exercise sufficient control over the plaintiff’s work: it was MassHealth, not the defendant, that set the plaintiffs’ work schedule and determined payroll policies. 2 In the instant case, no regulatory framework governs the employer-employee relationship of car sales employees at the Colonial Automotive Group dealerships, suggesting that whether such a relationship exists for purposes of the Wage Act is a question of fact. The issue is whether the Complaint pleads sufficient facts to satisfy the two tests described in Gallagher. This Court concludes that it does.
As to CAG, the Complaint alleges that all defendants, including CAG, sell cars to members of the public through sales employees such as the plaintiffs. ¶¶ 41, 20-31. Assuming these facts to be true, CAG thus receives the “services” of the plaintiffs. The Complaint also alleges that CAG maintains a common website for all of the dealerships, and holds itself out as a
2 Gallagher left open the question of whether the statutory “services” test entirely supplants the common law “control” test. In the absence of any appellate case that deals directly with this issue, this Court concludes that the common law test supplements the statutory test – that is, that both can be applied to determine if a defendant is an employer under the Wage Act.
single dealership with over 600 employees. CAG controls and manages the business operations and employment matters for all of the dealerships, which implement CAG employment policies and procedures, including those that pertain to wage and overtime compensation. Finally, plaintiffs attached to their memorandum in opposition certain agreements signed by plaintiffs Malebranche and Lamandier, apparently with CAG, which state among other things that failure to comply with “The Colonial Automotive Group’s information security policies and procedures” could result in “termination of my employment with The Colonial Automotive Group.” Although these documents are not specifically referenced in the Complaint and thus should not be considered on this 12 (b) (6) motion, they do indicate that if discovery were allowed to proceed, there may be further information that would support plaintiffs’ claim that they were employed by CAG.
Although a closer call, this Court also concludes that the Complaint alleges enough to show an employment relationship between plaintiffs and Gordon Chevrolet, particularly if this Court draws all reasonable inference in favor of the plaintiffs. At least two of the plaintiffs executed agreements acknowledging the terms of their employment with “Gordon Chevrolet Geo dba Gordon Chevrolet” and “Gordon Chevrolet Geo dba Colonial Nissan.” This suggests that they do provide services to Gordon Chevrolet or alternatively, that Gordon Chevrolet maintains some control over the terms and conditions of their employment. The Complaint also alleges that Gordon Chevrolet assists CAG as its agent in its management and control of the business and employment matters for the dealerships. In short, whether Gordon Chevrolet or CAG should remain in the case is best decided after plaintiffs have had an opportunity to explore these issues in discovery.
For the foregoing reasons, the defendants’ Motion to Dismiss is DENIED. This case is scheduled for a Rule 16 conference November ___, 2018 at 2:00.
Janet L. Sanders
Justice of the Superior Court
Dated: October 19, 2017 read more

Posted by Stephen Sandberg - November 3, 2017 at 7:33 am

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Alnylam Pharmaceuticals, Inc. v. Dicerna Pharmaceuticals, Inc. (Lawyers Weekly No. 09-026-17)

No. 2015-4126
(Specially Assigned to
Leibensperger, J.)
These motions present the issue of whether, in a battle between business competitors, the
defendant may assert a counterclaim against the plaintiff based on plaintiff’s commencement of
the lawsuit. Specifically, may the defendant proceed on counterclaims of tortious interference
with advantageous relations, abuse of process and violation of G.L. c. 93A based on the
allegation that the initiation of the lawsuit by the plaintiff was motivated by an ulterior purpose to
squelch the defendant as a competitor, as opposed to a good faith belief in the claims asserted?
Here, Alnylam attacks counterclaims asserted by Dicerna. Alnylam seeks dismissal of
Dicerna’s counterclaims on the ground that they are all based on Alnylam’s exercise of its right
to petition the government by commencing the lawsuit. Alnylam invokes the protection of the
anti-SLAPP staute, G.L. c. 231, § 59H. Alnylam also contends that Dicerna’s counterclaims fail
to meet the standard for asserting viable causes of action. Thus, Alnylam moves for dismissal
1 This Order will also address Alnylam’s Rule 42(b) Motion to Bifurcate.
under Rule 12(b)(6). I will address the anti-SLAPP motion first as the resolution of that motion
will necessarily determine whether the counterclaims survive Rule 12(b)(6).
This action was commenced by Alnylam in June 2015. Alnylam claims that Dicerna
misappropriated Alnylam’s trade secrets. In general, the trade secrets include those developed at
Merck and purchased by Alnylam for millions of dollars. Alnylam alleges that the theft occurred
in at least two ways. First, Dicerna hired scientists who had been employed at Merck, and those
scientists brought Merck’s trade secret documents with them to Dicerna. Second, Dicerna had bid
for Merck’s trade secrets at the same time as Alnylam. In that connection, Dicerna was provided
with access to Merck’s trade secrets under an agreement not to use or disclose the trade secrets if
the bid were unsuccessful. Dicerna’s bid was unsuccessful, as the sale went to Alnylam. Alnylam
claims that Dicerna is, nevertheless, using the Merck/Alnylam trade secrets. Alnylam seeks
damages and an injunction in its complaint but it chose not to seek a preliminary injunction.
Dicerna did not attack Alnylam’s complaint with a motion to dismiss or a motion for summary
Two years later, in June 2017, Dicerna moved to amend its responsive pleading to assert
counterclaims against Alnylam. After hearing, I allowed the motion to amend. The counterclaims
are in three counts: Count I, Tortious Interference With Advantageous Relations; Count II, Abuse
of Process; and Count III, Violation of G.L. c. 93A. Alnylam now moves to dismiss the
The overall gist of the counterclaims is that Alnylam commenced a frivolous suit because
the trade secrets alleged by Alnylam, and described by it after several iterations during discovery
from 2015 to 2017, are not secrets at all but, instead, constitute information in the public domain.
Dicerna contends that the suit was commenced in order to crush Alnylam’s much smaller
competitor, Dicerna, with the cost of defending the case. Dicerna also avers that Alnylam
brought the suit with the ulterior motive to interfere with Dicerna’s funding sources and
partnership opportunities. The counterclaims include the following specifics.
There is no question that the two bio-pharmaceutical companies are competitors. They
are both engaged in the process of researching, developing and commercializing therapies
utilizing RNA interference (“RNAi”). RNAi technology is cutting edge science directed to
attacking or suppressing disease-involved genes. According to Dicerna’s counterclaim, the two
companies compete with respect to hiring the best scientists and attracting investment dollars, as
well as with respect to bringing an approved drug to market. Alnylam is the larger competitor,
with over one billion dollars in cash on its balance sheet, while Dicerna has only a small fraction
of that amount.
Dicerna alleges that the trade secrets claimed by Alnylam fail to qualify as such. The
“central component” of the assets purchased from Merck by Alnylam was Merck’s patent
portfolio. Counterclaims (“CCL”) ¶ 27. The patent portfolio puts the technology in the public
domain. In addition, the particular trade secret that precipitated this suit (Slide 11) has been
described in the public domain in patent applications and in the scientific literature. Dicerna
alleges that Alnylam did not research whether its putative trade secrets were in the public domain
prior to filing this lawsuit. CCL ¶s 42 to 46. In ¶ 45, Dicerna states “Alnylam’s willful blindness
to the public domain and its own patent strategy while making its trade secret allegation is clear,
as not a single Alnylam witness has come forward to testify that Alnylam considered the
technology described in its public patent filings before striking out at Dicerna with a lawsuit
designed to inflict competitive harm on Dicerna.” In depositions taken of Alnylam witnesses in
this case, Dicerna says there are admissions that Alnylam did not, before filing suit, compare the
Merck documents that were found to be in the possession of former Merck scientists who
became employed at Dicerna to information already in the public domain. Finally, Dicerna
alleges that Alnylam did not investigate before filing suit whether the putative trade secrets held
at Merck were adequately protected as such so as to qualify for legal protection as trade secrets.
CCL ¶s 17 to 24.
Alnylam filed this lawsuit against Dicerna in June 2015, and on the same day issued a
press release announcing the action. With the press release, Alnylam posted an electronic copy of
its complaint, where it remains accessible today. Although Alnylam claimed in the press release
that it filed the case in order to stop Dicerna from misappropriating trade secret information, and
included a request for an injunction in the complaint, Alnylam did not seek a preliminary
injunction. At the outset of this litigation, Alnylam, upon motion by Dicerna, was ordered to
provide a Trade Secret List detailing the secrets it claimed had been misappropriated and
describing whether the putative secrets were or were not in the public domain. In response,
Alnylam submitted an extremely long and broad list, with no indication of what might already be
in the public domain. Pursuant to orders of the court, Alnylam was required to revise the list in
successive iterations of the Trade Secret List. After discovery, the list of alleged trade secrets has
narrowed considerably.
Dicerna alleges that “[b]ecause they are competitors, Alnylam is well-aware that Dicerna
relies on securing partnerships, alliances, and licensing deals with other pharmaceutical
companies to continue to fund its mission of continuing research and development into
potentially life-saving therapeutics.” CCL ¶ 57. Dicerna pleads that it has been unable to secure
two partnership deals that would have closed but for the pendency of Alnylam’s lawsuit. CCL ¶
68. The lost partnership opportunities have allegedly caused Dicerna pecuniary harm in the form
of lost investment dollars. Dicerna also claims that the lawsuit has affected Dicerna’s ability to
recruit talented scientists. CCL ¶ 72. Finally, Dicerna alleges that Alnylam’s lawsuit has caused
harm to Dicerna in the form of attorney fees and expert costs.
The standards for evaluating Alnylam’s anti-SLAPP motion and its Rule 12(b)(6) motion
are different. To survive a Rule 12(b)(6) motion to dismiss, a complaint or counterclaim must set
forth the basis for the complainant’s entitlement to relief with “more than labels and
conclusions.” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). At the pleading stage, Rule 12(b)(6) requires that the
counterclaim set forth “factual ‘allegations plausibly suggesting (not merely consistent with)’ an
entitlement to relief . . . .” Id., quoting Bell Atl. Corp., 550 U.S. at 557. The court must, however,
accept as true the factual allegations of the counterclaim and draw every reasonable inference in
favor of the counterclaimant. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
The anti-SLAPP standard allows the court to consider more than the averments in the
counterclaim. “[T]he motion judge, in the exercise of sound discretion, is to assess the totality of
the circumstances pertinent to the nonmoving party’s asserted primary purpose in bringing its
claim. The course and manner of proceedings, the pleadings filed, and affidavits ‘stating the facts
upon which the liability or defense is based,’ . . . may all be considered in evaluating whether the
claim is a ‘SLAPP’ suit.” Blanchard v. Steward Carney Hospital, Inc., 477 Mass. 141, 160 – 161
(2017)(citations omitted). Under the anti-SLAPP statute, G.L. c. 231, § 59H, the court is to
“advance” consideration of a special motion to dismiss “so that it may be heard and determined
as expeditiously as possible.”
Thus, the court is required to conduct the comprehensive analysis described in Blanchard
upon motion papers rather than a trial. This presents particular problems in a highly technical
case like this one. The essence of Dicerna’s counterclaim is the allegation that Alnylam did not
have a good faith basis for its claims of theft of trade secrets. Dicerna says the trade secrets do
not qualify for protection because they are in the public domain. That is the heart of this lawsuit –
– were the trade secrets in the public domain or not? At trial, I expect that there will be
sophisticated experts on both sides telling the jury the answer to that question. Yet, I am to
determine now whether Dicerna should be allowed to proceed with its counterclaims. The fair
result, and the result consistent with the following analysis under the anti-SLAPP framework, is
to let the counterclaims proceed.
Anti-SLAPP Analysis
The now three-pronged framework for analyzing an anti-SLAPP statute is as follows.
First, the moving party must make a threshold showing through the pleadings and affidavits that
“the claims against it are “based on” the petitioning activities alone and have no substantial basis
other than or in addition to the petitioning activities.” Duracraft, v. Holmes Prods. Corp., 427
Mass. 156, 167 – 168 (1998). If such a showing is made by the moving party, the burden shifts to
the non-moving party to show “(1) the moving party’s exercise of its right to petition was devoid
of any reasonable factual support or any arguable basis in law and (2) the moving party’s acts
caused actual injury to the responding party.” G.L. c. 231, § 59H. The recent decision in
Blanchard, supra, adds a third prong to the framework. The non-moving party may defeat an
anti-SLAPP motion by establishing “that its suit was not ‘brought primarily to chill’ the special
movant’s legitimate exercise of its right to petition.” Blanchard, 477 Mass. at 159, quoting
Duracraft, supra at 161. The non-moving party must persuade the court that its “primary
motivating goal in bringing its claim, viewed in its entirety, was ‘not to interfere with and burden
[the moving party’s] . . . petition rights, but to seek damages for the personal harm to [it] from
[the moving party’s] alleged . . . [legally transgressive] acts.” Blanchard, supra at 160, quoting
Sandholm v. Kuecker, 2012 IL 111443 ¶ 57,356 Ill. Dec. 733, 962 N.E. 2d 418 (2012).
The first two prongs of the analysis are easily determined in favor of Alnylam, the
moving party. Dicerna concedes that its counterclaims are based on Alnylam’s petitioning
activity and nothing else. The filing of the complaint, the press release and the subsequent
litigation conduct by Alnylam are all protected petitioning activities. Alnylam carries its burden
to show that the counterclaims have no basis other than or in addition to the petitioning activity.
The burden then shifts to Dicerna to show that Alnylam’s petitioning activity was devoid of any
reasonable factual support. While Dicerna certainly alleges that Alnylam’s complaint was devoid
of factual support, I find that, on the state of the record today, it cannot be determined whether
Alnylam’s claims are reasonably supported. Applying the Rule 12(b)(6) standard to Alnylam’s
complaint, an exercise that was never done because Dicerna did not move to dismiss, Alnylam’s
complaint states a cognizable claim for misappropriation of trade secrets, taking the allegations
of the complaint as true. But the ultimate conclusion regarding the merits of Alnylam’s
complaint must await further evidence at trial. Dicerna cannot carry at this stage of the
proceedings its burden of showing that Alnylam’s claims lack any reasonable support.
I now address the new third prong of the anti-SLAPP analysis. This is the augmented
analysis dictated by the Supreme Judicial Court in Blanchard, supra. Absent this third prong,
Alnylam’s special motion to dismiss would be allowed. In fact, Dicerna’s counsel suggested at
oral argument that it was because of the Supreme Judicial Court’s decision in Blanchard in 2017
that Dicerna believed it could move to add the counterclaims.
The non-moving party (Dicerna) may defeat a special motion to dismiss if it can
demonstrate that its counterclaim “was not primarily brought to chill the special movant’s
[Alnylam’s] legitimate petitioning activity.” Blanchard, 477 Mass. at 160. As described above, in
applying this new test, the motion judge may consider the entire record and circumstances
pertinent to the nonmoving party’s primary purpose in bringing its counterclaim. It appears that
this is a subjective test as to whether Dicerna’s counterclaims were brought primarily to chill. A
necessary but not sufficient factor in this analysis will be whether Dicerna’s counterclaim at issue
is ‘colorable or . . . worthy of being presented to and considered by the court’ . . . i.e., whether it
‘offers some reasonable possibility’ of a decision in the party’s favor.” Id. at 160-161 (citations
I start with the “necessary but not sufficient factor.” I find that all of Dicerna’s
counterclaims are “colorable” and are worth being presented to and considered by the court and
jury. I start with the claim for intentional interference with advantageous relations.
In order to succeed on a claim for intentional interference with advantageous relations,
the claimant (Dicerna) must show that “(1) a business relationship or contemplated contract for
economic benefit with a third party; (2) [the defendant’s] knowledge of such a relationship; (3)
[the defendant’s] interference with it through improper motive or means; and (4) [the claimant’s] loss of advantage directly resulting from [the defendant’s] conduct.” Adcom Products, Inc. v
Konica Business Machines USA, Inc., 41 Mass. App. Ct. 101, 104 (1996). Dicerna satisfies the
first element by pleading that there were two business relationships for investment in Dicerna
that would have closed but for the filing of Alnylam’s complaint. As to the second element,
while there is no allegation that Alnylam knew, specifically, of the two potential partnerships for
investment referenced by Dicerna, Dicerna does plead that Alnylam knew, generally, that
Dicerna was in the business of attracting and developing investment partners. It also is a
reasonable inference that Alnylam knew that the act of commencing a major lawsuit against a
competitor that goes to the heart of the competitor’s rights to intellectual property will likely
interfere with the competitor’s ability to raise investment funds through partnerships or
otherwise. I agree with the conclusion reached in Gillette Company v. Provost, 2017 WL
2292748 (Mass. Sup. Ct., Salinger, J.) that “[a] party claiming tortious interference with
prospective (rather than existing) business relationships is not required to prove that the
defendant was aware of a potential relationship with a specific third party. It is enough that the
defendant knowingly interfered with a prospective relationship between the plaintiff and an
identifiable class or category of third persons.” Id. at *8.
Whether the facts alleged in the counterclaim are sufficient to plead the third element of
the intentional interference tort is the principal subject of Alnylam’s motion to dismiss. Dicerna
must plead sufficient facts to make it plausible that Alnylam acted with improper means or
motive when it commenced this action. That means that Alnylam commenced the suit not
primarily to protect its trade secrets but instead with the ulterior motive to thwart its competitor,
Dicerna. As put by Alnylam in its argument, Dicerna must show that Alnylam’s suit was filed
without probable cause to believe it would succeed. G. S. Enterprises, Inc. v. Falmouth Marine,
Inc., 410 Mass. 262, 273 (1991).
Dicerna’s counterclaim alleges facts that, if proved, raise a jury question regarding
Alnylam’s motivation for commencing this action. Dicerna alleges that Alnylam’s alleged trade
secrets did not qualify as such because the information was in the public domain. Further, the
counterclaim alleges that Alnylam either knew that the trade secrets were not protected or
recklessly failed to examine whether the trade secrets were in the public domain before
commencing this lawsuit. Alnylam allegedly did so to injure Dicerna and to gain a competitive
advantage over Dicerna. If these facts are proved, a jury could conclude that Alnylam acted with
ulterior motive and did not actually believe it could succeed on its claim of misappropriation of
trade secrets. “The propriety of an actor’s motives in a particular setting necessarily depends on
the attending circumstances, and must be evaluated on a case-by-case basis.” Id. at 273 – 274
(reversing summary judgment dismissing intentional interference claim). See, Brooks
Automation, Inc. v. Blueshift Technologies, Inc., 2006 WL 307948 at *8 (Mass. Superior Ct.,
Gants, J.)(holding, after trial, that interference claim justified where party “filed suit when it
sensed the possibility of a trade secret theft without having reasonably investigated whether what
it sensed indeed constituted the theft of a trade secret”). In sum, the questions of whether
Alnylam had probable cause to file this case, and whether it acted with an ulterior motive are for
the jury.
Having concluded that Dicerna’s counterclaim for intentional interference with
advantageous relations is colorable, and adequately pleaded,2 it is an easy deduction to conclude
that Dicerna’s abuse of process and c. 93A claims also are colorable and adequately pleaded.
Alnylam makes no separate arguments for why these claims are not colorable and do not state a
claim. Alnylam expressly concedes that the c. 93A claim is derivative of the intentional
interference claim and that they stand or fall together. With respect to the abuse of process claim,
Alnylam repeats its arguments to the effect that the counterclaim does not adequately plead
ulterior motive.
Finally, the last step of the augmented framework for evaluating an anti-SLAPP motion
under Blanchard is to determine whether under the “totality of the circumstances” Dicerna’s
counterclaim was, or was not, brought primarily to chill Alnylam’s legitimate exercise of the
right to petition. Blanchard, 477 Mass. at 160. Dicerna bears the burden to meet this showing. Id.
Dicerna must make this showing as to each claim viewed as a whole. Id.
This last step requires the court to discern the subjective state of mind of Dicerna. It is a
reasonable inference from the facts alleged in the counterclaim that Dicerna is, in fact, motivated
to recover for the harm caused by Alnylam’s commencement of this action. If it turns out that
Alnylam’s lawsuit for theft of trade secrets was justified, the fact that it caused Dicerna harm is
of no moment. But if it turns out that Alnylam’s lawsuit was not justified, and was commenced
without probable cause and with an ulterior motive, as Dicerna alleges, Dicerna seeks
recompense for the harm done. I find that that is a legitimate motive and is not intended to chill
2 The counterclaim expressly pleads that Dicerna has been harmed by loss of investment
opportunities, loss of ability to attract scientists and the incurrence of legal fees. Thus, the fourth
element of the tort of intentional interference is adequately pleaded to withstand a motion to
Alnylam’s right to petition. Id. at 157 (“The Legislature did not intend the expedited remedy it
provided, the special motion to dismiss, to be used instead as a cudgel to forestall and chill the
legitimate claims – – also petitioning activity – – of those who may truly be aggrieved by the
sometimes collateral damage wrought by another’s valid petitioning activity”).
Alnylam relies on two arguments for why the court should conclude that Dicerna’s
counterclaims are intended to chill Alnylam. First, it points to Dicerna’s efforts, through motions
in this case, to secure compliance with the court’s orders to Alnylam to revise the Trade Secret
List and to compel discovery. I find that those motions were routine litigation tactics purposely
intended and directed to defending Alnylam’s claims.3 Second, Alnylam notes that Dicerna, at
the same time it sought leave to file counterclaims in this case, prepared and promptly filed an
antitrust action in federal court which is, allegedly, a cut and paste of Dicerna’s counterclaims in
this case. Alnylam argues that this filing is evidence that the counterclaims here were brought to
chill Alnylam for its legitimate petitioning activity. I draw an opposite inference. The filing of the
federal lawsuit asserting antitrust claims against Alnylam for anti-competitive conduct, a claim
that could only be made in federal court, suggests Dicerna’s true motive is to seek actual
damages for what it believes is Alnylam’s wrongful conduct in pursuing “sham” litigation.
Complaint, Docket No. 17cv11466, U.S. Dist. Ct., Dist. Of Mass., ¶s 25 et seq. Alnylam’s
arguments do not suggest a “chill” motive for Dicerna beyond a legitimate interest in obtaining
recovery for allegedly wrongful conduct.
3 This finding is made notwithstanding the language I used in allowing Dicerna’s motion
to compel discovery wherein I stated that the breadth of Dicerna’s initial request had a “punitive
Rule 12(b)(6) Analysis
As referenced the standard for examining a motion to dismiss is narrower than the
standard for evaluating an anti-SLAPP motion. That said, however, the anti-SLAPP analysis
requires the court to determine whether the counterclaims are colorable. I interpret “colorable” as
being the same as finding that the claims are “plausible.” Accordingly, because I find the
counterclaims to be colorable, they necessarily are plausible and survive Alnylam’s Rule 12(b)(6)
motion to dismiss.
Alnylam’s Motion to Bifurcate and Stay
At the time of hearing and allowing Dicerna’s motion for leave to amend to add
counterclaims, I indicated that bifurcation was not in the interest of judicial economy. The jury
that determines whether Dicerna misappropriated Alnylam’s trade secrets is best equipped to
decide whether Alnylam had a good faith basis to commence the action. Alnylam now points to
Dicerna’s filing of the federal antitrust case as a reason to bifurcate the counterclaims and to stay
resolution of this case until after the completion of the federal case. This also makes no sense
because the three causes of action in Dicerna’s counterclaim are not even pleaded in the federal
case. The motion to bifurcate will be denied.
For the reasons stated above, each of (i) Alnylam’s Special Motion to Dismiss, (ii)
Alnylam’s Rule 12(b)(6) Motion to Dismiss, and (iii) Alnylam’s Rule 42(b) Motion to Bifurcate
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
October 23, 2017
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Posted by Stephen Sandberg - November 2, 2017 at 8:44 pm

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Da Costa, et al. v. Vanguard Cleaning Systems, Inc. (Lawyers Weekly No. 09-021-17)



MIDDLESEX, ss.                                                                                        SUPERIOR COURT

                                                                                                                       CIVIL ACTION

  1. 15-04743







The plaintiffs, Luiz Thomaz Da Costa and others, and the defendant, Vanguard Cleaning Systems, Inc. (“Vanguard”), have filed cross motions for summary judgment seeking a ruling on the plaintiffs’ employment classification status under the laws of Massachusetts and Connecticut in connection with commercial cleaning work which the plaintiffs claim they performed on behalf of Vanguard. G.L. c. 149, § 148B; Conn. Gen. Stat. § 31-222(a)(1)(B).  After hearing, and upon review and consideration, the plaintiffs’ cross-motion for summary judgment is ALLOWED, and Vanguard’s cross-motion for summary judgment is DENIED. read more

Posted by Stephen Sandberg - October 25, 2017 at 7:32 pm

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Ajemian, et al. v. Yahoo!, Inc. (Lawyers Weekly No. 10-165-17)

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;


MARIANNE AJEMIAN, coadministrator,[1] & another[2]  vs.  YAHOO!, INC.

Norfolk.     March 9, 2017. – October 16, 2017.

Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[3]

Internet.  Personal Property, Ownership.  Executor and Administrator, Recovery of assets, Contracts.  Contract, Service contract.  Agency, What constitutes. Statute, Construction.  Consent.  Federal Preemption.

Complaint filed in the Norfolk Division of the Probate and Family Court Department on September 15, 2009. read more

Posted by Stephen Sandberg - October 16, 2017 at 8:52 pm

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Smith-Berry, et al. v. National Amusements, Inc., et al. (Lawyers Weekly No. 09-017-17)

No. 2017-0491 BLS 1
TREMAYNE SMITH-BERRY and JESSA DAPRATO, individually and as class
Both plaintiffs and defendants ask the court to reconsider its decision dated August 29,
2017 (“Decision”), allowing, in part, and denying, in part, defendants’ motion to dismiss Count
III of the First Amended Complaint.
Plaintiffs re-argue their position that workers at Showcase Cinemas are entitled to be
compensated at one and half times their regular pay (‘premium pay”) when they work on
Sundays. After review of the argument, plaintiffs’ motion to reconsider is DENIED for the
reasons stated in the Decision.
Defendants, referred to collectively in the Decision and here as “Showcase”, move to
reconsider that portion of the Decision that denied complete dismissal of Count III. In the
Decision, I held that application of G.L. c. 136, § 13 required that Showcase pay premium pay to
workers for work performed on three holidays: New Year’s Day, Columbus Day and Veteran’s
Day (the “Holidays”). This somewhat odd result was directed by the decision of the Appeals
Court in Drive-O-Rama, Inc. v. Attorney General, 63 Mass. App. Ct. 769 (2005) concerning
1 Cerco LLC, d/b/a Showcase Cinemas and Shari Redstone
retail establishments.
Showcase now argues that its operation on the Holidays is governed by a different section
of the General Laws that does not require premium pay. For the reasons stated below, I agree.
Section 13 of c. 136 applies to a retail establishment that operates on the Holidays “under
the exemption granted by this section.” Showcase now points out that movie theaters operate on
the Holidays pursuant to another section of c. 136; i.e., § 14. Section 14 was enacted by the
Legislature on the same day as § 13, and states that “[n]otwithstanding any provision of this
chapter to the contrary” the activities of “sport, fair, exposition, play, entertainment or public
diversion” may be conducted on any legal holiday. “[A]ny labor, business or work necessary or
incidental thereto may be performed on any legal holiday . . . .” Section 14, unlike § 13, does not
require premium pay for employees working on any legal holiday.
As referenced in the Decision, a movie theater may be viewed as a retail establishment.
At the same time, the operation of a movie theater is also a business providing “entertainment or
public diversion” as described in § 14. That conclusion is consistent with the plain meaning of
the words in § 14. Moreover, the conclusion is bolstered by the Legislature’s specific reference to
“exhibition of motion pictures by a movie theater” in Clause 8A of § 4 of c. 136. Clause 8A
exempts movie theaters from certain licensing requirements that otherwise would have applied to
a business providing “entertainment or public diversion.” By implication, the Legislature
recognized that movie theaters are businesses providing “entertainment or public diversion.”
Because § 13 and § 14 were enacted together in St. 1962, c. 616, § 2, I conclude that the
Legislature intended that “retail establishments” and businesses providing “entertainment or
public diversion” should be treated differently when it comes to the obligation to provide
premium pay for work on the Holidays. That is made abundantly clear by the Legislature’s
language in § 14 providing “[n]otwithstanding any provision of this chapter to the contrary” a
provider of “entertainment or public diversion” is governed by § 14.
“It is a basic canon of statutory interpretation that ‘general statutory language must yield
to that which is more specific.’” TBI Inc. v. Board of Health of North Andover, 431 Mass. 9, 18
(2000), quoting Risk Mgt. Found. Of Harvard Med. Insts., Inc. v. Commissioner of Ins., 407
Mass. 498, 505 (1990). Applying that canon here, I conclude that the inclusion of movie theaters
in § 14 by virtue of being a business providing “entertainment or public diversion” is a more
specific reference to the business of movie theaters than the generic “retail establishment.” That
means that movie theaters are governed by § 14, not § 13. Because § 14 does not require
premium pay for work on the Holidays, Plaintiffs Count III must be dismissed in its entirety.
Defendants’ motion for reconsideration is ALLOWED. Count III is dismissed.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
October 6, 2017
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Posted by Stephen Sandberg - October 11, 2017 at 7:14 pm

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Casella Waste Systems, Inc., et al. v. Steadfast Insurance Company (Lawyers Weekly No. 09-008-17)

No. 2016-2521 BLS 1
This is an insurance coverage dispute between a company engaged in the landfill business
and its insurer. The insurer, defendant Steadfast Insurance Company, issued a policy called Z
Choice Pollution Liability (the “Policy”) to plaintiff, Casella Waste Systems, Inc., naming
Casella and its subsidiary, Southbridge Recycling & Disposal Park, Inc. (“SRDP”), as insureds.
The Policy covers claims made against the insureds during the Policy period of April 30, 2015 to
June 15, 2016. Following notification by Casella in October 2015 to the Massachusetts
Department of Environmental Protection (“DEP”) of the detection of pollution flowing from
Casella’s property to neighboring property, a claim by DEP, as defined in the Policy, arose.
Casella sought insurance coverage for the claim. Steadfast denied coverage. Casella sued for
breach of contract, violation of G.L. c. 93A and for a declaration of coverage. Steadfast now
moves for a summary judgment declaring there is no coverage under the Policy. For the reasons
described below, summary judgment must be denied because there are material issues of fact that
1 Southbridge Recycling & Disposal Park, Inc.
are genuinely in dispute.
The following facts are taken from the parties’ Statement of Undisputed Material Facts
and Responses Thereto (“SUMF”), supplemented by documents and affidavits in the summary
judgment record.
The coverage at issue under the Policy is what was provided under Coverage C: Cleanup
Costs – New Pollution Event. Under Coverage C, Steadfast is obligated to pay “cleanup costs” to
the extent resulting from a “new pollution event” that migrates beyond the boundaries of a
“covered location” if that “new pollution event” is first “discovered” during the policy period.
The obligation to pay includes “cleanup costs” that the insured is legally obligated to pay
resulting from a third-party “claim.” The Policy also contains an exclusion from coverage for a
“known pollution event.” The words in quotes are defined terms in the Policy.
Casella seeks to be reimbursed and indemnified by Steadfast for all past and future
cleanup costs incurred on account of a claim by DEP. There is no dispute that (i) Casella incurred
cleanup costs, as defined, (ii) arising from migration of pollution from a covered property, as
defined, and (iii) Casella received and reported to Steadfast a claim, as defined, coming from
DEP. The dispute between the parties that is the crux of this lawsuit is whether the DEP claim
resulted from a “new pollution event” that first commenced in the Policy period and was not
known by Casella prior to the commencement of the Policy
The DEP claim concerns a landfill in the Town of Southbridge, Massachusetts operated
by plaintiff/insured SRDP. Beginning in 2002, the landfill began an annual residential well
monitoring program under which residents within ½ mile of a portion of the landfill could
request testing of their potable wells. On October 23, 2015, Casella, by its consultant, gave notice
to DEP that SRDP’s well testing in September 2015 had detected certain contaminants above
applicable standards in the wells of three residences. The three residence were along a road called
H. Foote Road and the addresses were 65, 74 and 81 H. Foote Road. Of the three residences, it
was only at 65 where two contaminants – – trichloroethene (“TCE”) and 1,1-dichloroethene
(“DCE”) were detected in the well water at concentrations greater than the Massachusetts
Maximum Contaminant Level (“MMCL”). In fact, the detection of TCE and DCE at 65 H. Foote
Road was nearly double the applicable MMCLs. This was the first time since the well testing
program had begun that TCE and DCE were detected at concentrations above the MMCLs in any
residential well that participated in the program. The residence at 65 H. Foote Road had not
participated in the well testing program until December 2014, and its drinking water was not
tested until September 24, 2015.
The notice to DEP also referenced that another contaminant, 1,4 dioxane (“Dioxane”),
was detected in the well water of all three residence at 65, 74 and 81 H. Foote Road. The
concentration levels were all above the Massachusetts Drinking Water Guideline. Also, TCE and
DCE were found in the water of 81 H. Foote Road at levels below MMCL.
Prior to the September, 2015 detection of TCE and DCE at levels above MMCL at 65 H.
Foote Road, there had been detections, as part of the well testing program, of TCE and DCE
below MMCL, as well as detections above reportable conditions of Dioxane in the drinking
water supply of some of the residences on H. Foote Road. None of these detections, however,
caused Casella to be assigned a release tracking number under the 21-E Program or to be
designated as a potentially responsible party. No claim was asserted by DEP and no remedial
action was required because of these earlier detections.
As a result of the notice to DEP in October 2015, the DEP for the first time assigned a
Release Tracking Number pursuant to its 21-E Program and identified SRDP as a potentially
responsible party for cleanup costs. Casella prepared, as required by DEP, an Immediate
Response Action Plan which was subsequently approved by DEP. In March 2017, Casella
reached an agreement in principle with the Town of Southbridge, the Town of Charlton and the
DEP to resolve the DEP claim. The agreement in principle was later finalized by way of an
Administrative Consent Order in May 2017, providing, among other things, for the sharing of
costs between DEP and SRDP of up to $ 10 million to install a municipal waterline in the Town
of Charlton. Casella became legally obligated to pay cleanup costs and take other remedial
action. Casella incurred more than $ 2.5 million in cleanup costs in connection with the DEP
claim and expects to incur additional costs.
On December 15, 2015, Casella provided notice to Steadfast of an occurrence or claim by
attaching a letter from Casella’s consultant to DEP. By letter dated April 8, 2016, Casella
notified Steadfast of the DEP claim. Steadfast denied coverage for the DEP claim, by letter dated
April 27, 2016, based on the “known pollution event” exclusion. This lawsuit followed.
A claim cannot be resolved on a motion for summary judgment where “a reasonable jury
could return a verdict for the nonmoving party.” Dennis v. Kaskel, 79 Mass. App. Ct. 736, 741
(2011), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For this reason, in
evaluating the motion for summary judgment the court “must . . . draw all reasonable
inferences” from the evidence presented “in favor of the nonmoving party,” as a jury would be
free to do at trial. Godfrey v. Globe Newspaper Co., Inc., 457 Mass. 113, 119 (2010). A request
for summary judgment must be denied where a claim turns on disputed issues of fact or on
disputed inferences from admitted facts. See Molly A. v. Commissioner of Dept. of Mental
Retardation, 69 Mass. App. Ct. 267, 284 (2007)(“summary judgment cannot be granted if the
evidence properly before the motion judge reveals a genuine issue of disputed material fact”);
Flesner v. Technical Communications Corp., 410 Mass. 805, 811-812 (1991) (“Where a jury can
draw opposite inferences from the evidence, summary judgment is improper.”).
Here, there are at least two major disputes of fact that are material to the legal issue of
whether insurance coverage exists under the Policy. Those disputes are (1) whether a relevant
“pollution event” was known to a “responsible insured” prior to the commencement of the
Policy, and (2) whether the “claim” submitted by Casella to Steadfast resulted from a “new
pollution event.” The disputes coalesce around the events at 65 Foote Road.
(1) Knowledge of Pollution Event
In SUMF Nos. 19, 20 and 45, Steadfast asserts that a 2006 collection of samples of water
at 65 H. Foote Road showed some level of TCE and DCE. Steadfast claims that the samples were
part of the residential well program of testing by SRDP. Casella denies these facts, based on
affidavits stating that the 2006 detections were not part of its well program. The affidavits aver
that the 2006 results were not known by Casella until late 2015. In SUMF No. 85, a statement of
fact submitted by Casella, Steadfast then admits that Casella was not aware of the 2006 report of
TCE and DCE at 65 H. Foote Road before April 2015 (the commencement of the Policy). This
contradiction suggests an unresolved issue of fact. Moreover, Steadfast contends in response to
SUMF No. 85 that detection by Casella’s well testing program prior to 2015 at other residences
on H. Foote Road revealed at least some level of TCE and DCE in the water migrating to the
residences along H. Foote Road. While not stated with precision, Steadfast appears to argue that
the known pollution along H. Foote Road may be sufficient to ascribe knowledge of pollution at
65 H. Foote Road to Casella.
Thus, the facts of what did Casella know and when did it know it, are at issue. The
insurance provided by the Policy does not apply to a “pollution event” that was known to Casella
before the commencement of the Policy. A “pollution event” is defined in the Policy to mean
“the discharge, release, or escape of any solid, liquid, gaseous or thermal irritant, contaminant or
pollutant . . . into or upon land . . . or any watercourse or body of water including groundwater.”
Whether there was a pollution event known to Casella prior to the commencement of the policy
at 65 H. Foote Road or at any other relevant residences presents factual issues that must be
determined by a jury.
(2) What Caused the Claim
The question of what caused DEP’s claim brings the focus to 65 H. Foote Road. That is
because Steadfast’s obligation to pay under the Policy is triggered when Casella is legally
obligated to pay “as a result of” a “claim.”
The Policy defines “claim” as a “written demand or written notice received by the
‘insured’ alleging liability or responsibility on the part of the ‘insured.’” There does not appear to
be any dispute that the “claim” in this case is the assertion of liability of SRDP and Casella by
DEP.2 It is the position of Casella that the claim by DEP “resulted from” (quoting the language of
2 On March 9, 2016, Casella provided Steadfast with notice of a letter from legal counsel
to residents in the surrounding area of H. Foote Road. That letter threatened a lawsuit under
federal law for the alleged contamination of drinking water. By letter dated April 5, 2016,
the Policy) the discovery in September 2015, of TCE and DCE at levels in excess of MMCL at
65 H. Foote Road. Stated another way, Casella contends that but for the discovery of high levels
of TCE and DCE at 65 H. Foote Road, there would not have been a DEP enforcement proceeding
or a claim at all. In SUMF No. 79, Casella states “[i]t was not until the detection in the drinking
water of TCE and 1,1 DCE above the MMCLs – – which had never occurred previously as part of
the Well Program – – that Casella was faced with a Claim in connection with the Well Program
identifying SRDP as a PRP under M.G.L. c. 21E and mandating that Casella incur extensive
‘cleanup costs’ in the form of a submission of an Immediate Response Action plan and the
performance of extensive remediation in accordance with M.G.L. c. 21E.” Steadfast disputes
SUMF No. 79. In addition, in response to Steadfast’s SUMF Nos. 18 to 44, wherein Steadfast
described detections on dates prior to the inception of the Policy of some level of TCE and DCE
and Dioxin at residences on H. Foote Road, other than number 65, Casella responded that “the
Mass DEP Claim was not as a result of those detections.”
In sum, Casella asserts that (1) it had no knowledge prior to September 2015 of pollution
migrating to 65 H. Foote Road, and (2) the “claim” occurred as a result of what was discovered
in September 2015 at 65 H. Foote Road, and absent the discovery at 65 H. Foote Road there
would have been no claim. The latter assertion will, ultimately, depend on Casella’s ability to
prove what would have occurred in a hypothetical situation: i.e., if only the Dioxane test results
for 74 and 81 H. Foote Road had been reported rather than in combination with the severe
readings of TCE and DCE from 65 H. Foote Road. I find that the facts asserted by Casella, as to
Steadfast denied coverage under the Policy for this potential claim based upon the “known
pollution event” exclusion. While these events are recited at ¶¶ 35 to 37 of the Complaint,
Casella asserts no claim in this lawsuit arising from this correspondence.
the lack of any enforcement by DEP prior to the October 2015 report of findings at 65 H. Foote
Road, and the immediate assertion of a claim arising after the October 2015 report, give rise to a
reasonable inference that the claim by DEP resulted from a “new pollution event” at 65 H. Foote
Road.3 The reasonable inference may be rebutted by evidence in the correspondence and
otherwise indicating that DEP required remedial action with respect to 74 and 81 H. Foote Road,
but a triable issue is presented. Moreover, it may be that some of the “claim” asserted by DEP
resulted from pollution at locations other than 65 H. Foote Road as to which Casella was aware
prior to 2015. In that case, a question of allocation of cleanup costs to a covered claim (65 H.
Foote Road) and other locations that may not be covered because of the “known pollution event”
exclusion, may have to be determined. Summary judgment is not available to decide those fact
For the reasons stated above, Steadfast’s Motion for Summary Judgment is DENIED.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
Date: September 7, 2017
3 A “new pollution event” is defined in the Policy to mean “a ‘pollution event’ that first
commences after the ‘delimitation date.’” The delimitation date is April 30, 2015.
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Posted by Stephen Sandberg - October 4, 2017 at 1:11 am

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Cook v. Applause App Quality, Inc., et al. (Lawyers Weekly No. 09-007-17)

NO. 2016-3293-BLS 2
In this putative class action, the plaintiff Walter Cook, individually and on behalf of others similarly situated, alleges violations of the Massachusetts Wage Act, G.L.c. 149 §149, 150, and the Massachusetts Minimum Fair Wage Act, G.L.c. 151 §§1A-1B. The Complaint was filed in October 2016 and, after an effort to settle the case through mediation, the parties proceeded with discovery. On August 10, 2017, the defendants requested extensions of various deadlines, to which the plaintiff assented. Under the revised tracking order, class-based discovery is to be complete by October 20, 2017, with a motion for class certification to follow.
The case is now before the Court because the defendant Applause App Quality, Inc. (Applause) on September 8, 2017 sent a document to putative class members entitled “Option Cancellation Agreement.” The document was sent in connection with a proposed merger between Applause and another company, Vista Equity Partners. On page six of the ten-page, single spaced document is language purporting to release Applause from the claims asserted in the instant case. Plaintiff’s counsel had no advance notice of the merger, and learned of the Option Cancellation Agreement only when an employee of Applause contacted him about it.
On September 11, 2017, plaintiff filed an Emergency Motion for a Temporary Restraining Order challenging Applause’s communications with potential class members. Rather than proceeding on an ex parte basis, this Court scheduled a hearing for September 14, 2017. After hearing, the Court issued a Temporary Order which among things prohibited Applause from any further communications and required it to withdraw the Option Cancellation Agreement pending further hearing. That further hearing was held on September 21, 2017, at which time defendant moved to terminated the Temporary Order. Based on the reasons set forth herein, this Court now extends that earlier order as a Preliminary Injunction and DENIES the defendant’s Motion.
Although the issues presented by this motion are new to this judge, the applicable legal principles are not. It has long been recognized that a court has inherent power to regulate and control the conduct of parties and their legal representatives if that is necessary to protect the integrity of the judicial process. Kevlik v. Goldstein, 724 F.2d 844, 847 (1st Cir. 1984) and cases cited therein. Where suit has been brought as a putative class action, that authority is made explicit in Rule 23(d), Mass. R.Civ. P., which states that the court may “impose such terms as shall fairly and adequately protect the interests of the class in whose behalf the action is brought or defended.” The potential that such interests will be unfairly compromised is particularly strong before a class has been certified, since potential class members are not yet represented by counsel and (in cases involving alleged wage violations) because of the heightened possibility of coercion between an employer defendant and its workers. See Chambers v. RDI Logistics, Inc., 476 Mass. 90, 111 (2016) (Chambers); see also Belt v. Emcare, Inc., 299 F. Supp. 2d 664, 668 (E.D. Tex. 2003) (“[W]here the absent class member and the defendant are involved in an
ongoing business relationship, such as employer-employee, any communications are more likely to be coercive”); Kleiner v. First Nat’l Bank, 751 F.2d 1193, 1202 (11th Cir. 1985) (same). Although a court’s authority to regulate communications by one party or his lawyer is circumscribed by the First Amendment, it is appropriately exercised to prevent “’misleading or coercive communications with potential class members that could or are intended to undermine participation in a class or collective action.” Chambers, 476 Mass. at 111, quoting Davine vs. Golub Corp., U.S. Dist. Ct., No. 14-30136-MGM (D. Mass. Oct. 24, 2014). Any order that does limit the opposing party’s communications must be supported by “clear and specific findings” that show a need for the limitation and a likelihood that, without it, there is a real potential of serious abuse. Chambers, 476 Mass. at 111, quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981).
With these principles in mind, this Court turns to the communication here at issue: the Option Cancellation Agreement (the Agreement). The Agreement contains two sets of releases, one appearing in Section 7 (and entitled “Release”) and the other appearing in Section 9 (c) (under the heading of “Additional Covenants”). The release language in Section 7 is quite broad and applies to a wide variety of claims, known and unknown, that have been or could be asserted against Applause and its successors and assigns, including Vista Equity. It specifically excludes from its reach, however, “any rights to receive compensation (including without limitation wages, fees, salaries and bonuses) and benefits or reimbursement of expenses that have accrued in respect of any employment” with Applause. Section 9 of the Agreement pertains directly to the instant case and purports to release precisely what Section 7 appears to preserve in that the employee relinquishes any claim to wages as asserted in this case. That the Agreement appears to be internally contradictory would alone support the conclusion that it is misleading.
As to the specific language of Section 9, it does accurately describe the claims in the instant case (which it references by name and docket number), and that description is in capitals and bold face. However, it is included in a document that by its title relates to stock options already earned by Applause employees under to a 2008 Equity Incentive Plan. The purpose of the Agreement is set forth on the first page and states that, as a result of the Merger Agreement entered into between Applause and other entities on August 18, 2017, these employee stock options are cancelled except that if they are vested, the option holder will receive a cash payment “equal to the Optionholder’s applicable portion of the consideration payable pursuant to the Merger Agreement…” That cash payment will be made, however, only if the option holder signs and returns the Agreement, and thus agrees to the releases in Section 7 and 9. In other words, any Applause employee with vested stock options will receive the cash equivalent only if he or she agrees to release any and all claims against Applause, including the claims asserted here.
Plaintiff contends that Applause has no legal basis for withholding compensation to its employees who hold vested stock options by conditioning it on those employees giving up their rights against Applause on wholly unrelated claims. This Court is inclined to agree. But see footnote 1, infra. The Agreement appears to cancel all stock options, whether vested or not, but vested stock options cannot be cancelled without some equivalent compensation. Consequently, that right to some compensation cannot be conditioned upon the employee giving up any claim to wages due and owing, which is what the Agreement appears to require the employee to do (assuming that Section 9 trumps Section 7 so as to avoid the internal contradictions between those two sections described above). As plaintiff’s counsel puts it, “defendants are trying to
settle with class members by offering to pay them money that they are already entitled to
receive.” 1
Defense counsel argues that such a general release like the one here at issue is “industry practice” where stock options are being cancelled as a result of a merger. He offers no evidence of that, however. Indeed, plaintiff’s counsel’s own research suggests that the industry practice (at least with respect to publicly traded companies) is to include releases that pertain only to claims that relate to the agreement itself and the stock options to which it pertains. The manner in which this Agreement was presented to putative class members was also coercive. Despite defense counsel’s attempt to characterize it as a mere offer, this Agreement was presented in a “take or leave it” fashion, without any indication that Applause was open to discussing it. Moreover, the Agreement – including Section 9 — is written in the dense and impenetrable language that only a lawyer can decipher. As if in recognition of that fact, the Agreement requires the employee to specifically represent that he or she had the opportunity to consult with legal counsel regarding his or her rights – and more specifically, that he or she has reviewed the Complaint in the instant action. Since these employees are likely of limited means and are not currently represented by class counsel (or even know who class counsel is), the chance that any employee would actually get independent and meaningful legal advice is decidedly slim.
This case is thus far different than the communication at issue in Chambers, which a lower court in its discretion declined to enjoin. In Chambers, the employer defendant in a Wage Act case sent a letter to its employees that described the then pending action against it in terms that a non-lawyer could easily understand. The defendant made a straightforward offer to pay a
1 At the hearing on September 21, 2017, defense counsel argued that this Court has misunderstood the Agreement and that it is supported by consideration. This Court need not decide today whether counsel is correct since I make no final determination regarding the validity of any Agreement executed before the Temporary Order issued. That the Agreement is difficult to decipher, however, and could lead to different interpretations only reinforces this Court’s conclusion that it constitutes a communication to putative class members that is misleading.
sum of money to any individual willing to relinquish his or her claim, as a putative class member, to seek compensation for unpaid wages, including any claim that the individual had been misclassified as an independent contractor. The letter did not require the recipient to give up any other rights; indeed, it specifically stated that the recipient’s decision to accept or reject the cash offer would not have any impact on his or her business dealings with the company unrelated to the class action. Finally, in refusing to reverse the lower court, the SJC did not specifically bless the communication at issue. It held only that the lower court did not abuse its discretion – that is, that its ruling did not involve a “clear error of judgment in weighing the factors relevant to the decision…such that [it] falls outside the range of reasonable alternatives.” Chambers, 476 Mass. at 111, quoting Merles v. Lerner, 391 Mass. 221, 226 (1984). This Court in the exercise of its discretion, concludes that Applause’s conduct is improper.
Accordingly, the plaintiff’s Motion for a Preliminary Injunction is ALLOWED, the defendant’s Motion to Terminate the Temporary Order is DENIED. This Court adopts the proposed Order submitted by plaintiff’s counsel at the hearing on September 21, 2017.
Janet L. Sanders
Justice of the Superior Court
Dated: September 21, 2017 read more

Posted by Stephen Sandberg - October 3, 2017 at 6:01 pm

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