Posts tagged "Lawyers"

Doe, Sex Offender Registry Board No. 326573 v. Sex Offender Registry Board (and a consolidated case) (Lawyers Weekly No. 10-109-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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

SJC-12182

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 326573  vs.  SEX OFFENDER REGISTRY BOARD (and a consolidated case[1]).

Suffolk.     February 7, 2017. – June 23, 2017.

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

Sex OffenderSex Offender Registration and Community Notification ActInternet.

Civil action commenced in the Superior Court Department on November 21, 2014.

A motion for preliminary injunction was heard by Gregg J. Pasquale, J., and the case was reported by him to the Appeals Court.

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Posted by Stephen Sandberg - June 23, 2017 at 3:15 pm

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Mount Vernon Fire Insurance Company v. Visionaid, Inc. (Lawyers Weekly No. 10-108-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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

SJC-12142

MOUNT VERNON FIRE INSURANCE COMPANY  vs.  VISIONAID, INC.[1]

Suffolk.     December 5, 2016. – June 22, 2017.

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

Insurance, Insurer’s obligation to defend.

Certification of questions of law to the Supreme Judicial Court by the United States Court of Appeals for the First Circuit.

Kenneth R. Berman (Heather B. Repicky also present) for the defendant.

James J. Duane, III (Scarlett M. Rajbanshi also present) for the plaintiff.

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Posted by Stephen Sandberg - June 22, 2017 at 5:46 pm

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Commonwealth v. George (Lawyers Weekly No. 10-107-17)

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

SJC-12173

COMMONWEALTH  vs.  RICHARD GEORGE.

Worcester.     December 8, 2016. – June 21, 2017.

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

Sex OffenderConstitutional Law, Sex offender.  Due Process of Law, Sex offender, Substantive rights.  Evidence, Sex offender, Expert opinion, Relevancy and materiality.  Witness, Expert.

Civil action commenced in the Superior Court Department on October 11, 2013.

The case was tried before Beverly J. Cannone, J.

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Posted by Stephen Sandberg - June 21, 2017 at 4:44 pm

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Commonwealth v. Jones (Lawyers Weekly No. 10-106-17)

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

SJC-12027

COMMONWEALTH  vs.  MAURICE JONES.

Suffolk.     January 10, 2017. – June 20, 2017.

Present:  Gants, C.J., Lenk, Hines, & Budd, JJ.

Homicide.  Jury and Jurors.  Practice, Criminal, Jury and jurors, Empanelment of jury, Challenge to jurors, Hearsay, Instructions to jury.  Evidence, Identity, Consciousness of guilt, Hearsay.  Constitutional Law, Self-incrimination.

Indictments found and returned in the Superior Court Department on June 26, 2013.

The cases were tried before Linda E. Giles, J., and a motion to set aside the verdict was heard by her.

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Posted by Stephen Sandberg - June 20, 2017 at 3:41 pm

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ABCD Holdings, LLC v. Hannon, et al. (Lawyers Weekly No. 12-068-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT.
1684CV01840-BLS2
____________________
ABCD HOLDINGS, LLC
v.
PATRICK J. HANNON, SOFIA GAGUA, and PATRICK J. (“P.J.”) HANNON and Others1
________________________________________
PATRICK J. HANNON
v.
ABCD HOLDINGS, LLC; ABC&D RECYCLING, INC.; WARE REAL ESTATE, LLC; TRI COUNTY RECYCLING, INC.; and GEORGE McLAUGHLIN, III
____________________
MEMORANDUM AND ORDER DENYING MOTION TO DISMISS COUNTERCLAIMS AND THIRD-PARTY CLAIMS
Plaintiff ABCD Holdings, LLC, (“Holdings”) has sued Patrick J. Hannon in part to enforce Hannon’s personal guaranty of one-half of the amount that Holdings loaned to Ware Real Estate, LLC (“Ware”) and ABC&D Recycling, Inc (“Recycling”). Holdings claims that Hannon is liable under his limited guaranty to repay $ 109,879.50 (half the original loan amount) plus reasonable collection costs.
In response, Hannon has asserted various counterclaims and third-party claims alleging, in essence, that George McLaughlin deliberately prevented Ware and Recycling from repaying what they owed under their note by using Holdings to take control of Ware and Recycling and then transferring their assets and business operatings to a new entity called Tri County Recycling, Inc. (“Tri County”).
The parties sued by Hannon—i.e., McLaughlin, Holdings, Ware, Recycling, and Tri County—have moved to dismiss Hannon’s claims. They claim that Hannon’s claims are all barred by a release executed by the Chapter 7 trustee of Hannon’s bankruptcy estate. In addition, Tri County asserts that the allegations against it do not state viable claims even if the claims were not barred by the release.
The Court concludes that these arguments are without merit. It will therefore DENY the motion to dismiss Hannon’s counterclaims and third-party claims.
1 Reach and Apply Defendants J. Derenzo Co.; J. Derenzo Construction Company, Inc.; Sofia Gagua; RHR, LLC; Patrick J. (“P.J.”) Hannon; Similar Soils, Inc.; Immanuel Corp.; Agritech, Inc.; and L-5, Inc.
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1. Settlement Agreement and Release. Hannon filed a petition under Chapter 11 of the United States Bankruptcy Code on May 3, 2012. That bankruptcy case was converted to a Chapter 7 or liquidation proceeding on January 2, 2013. The bankruptcy trustee sued Bright Horizon, LLC (“Bright Horizon”) and The McLaughlin Brothers, P.C. (“McLaughlin Bros.”) to recover various payments Hannon had made to them.
In May 2015 the bankruptcy trustee entered into a settlement agreement in which George McLaughlin, Bright Horizon, and McLaughlin Bros. agreed to pay the bankruptcy estate $ 45,000. In exchange, the trustee released all claims “whether known or unknown” that the estate or Hannon may have against George McLaughlin, Bright Horizon, McLaughlin Bros., or “any entity owned by any of” them. The settlement agreement states that it is releasing such claims “to the Trustee’s full authority to waive such claims.”
McLaughlin asserts that he owns Holdings, Recycling, Ware, and Tri County, and that the release executed by the bankruptcy trustee therefore bars all of Hannon’s counterclaims and third-party claims in this action. The Court disagrees.
Hannon’s claims in this action all arise at least in part from alleged acts by McLaughlin and his companies that occurred after Hannon’s bankruptcy petition was converted to a Chapter 7 proceeding in January 2013. Hannon alleges in his pleading that McLaughlin has been in full control of Recycling and Ware “since February 6, 2013,” and that since that time McLaughlin has taken steps to ensure that neither Recycling nor Ware has repaid any part of the loan to Holdings. He further alleges that Tri County was incorporated in May 2014, and that around that time McLaughlin terminated the business operations of Recycling and Ware and shifted those operations to Tri County.
Hannon correctly argues that the bankruptcy trustee had no power to release claims that were never part of the bankruptcy estate. See In re Ontos, 478 F.3d 427, 431 (1st Cir. 2007). “It is axiomatic that a Chapter 7 trustee may only release claims that he has the power to assert.” In re Pierport Dev. & Realty, Inc., 502 B.R. 819, 825 (Bankr. N.D.Ill. 2013), quoting In re Cent. Ill. Energy, LLC, 406 B.R. 371, 373–74 (Bankr. C.D.Ill. 2008).
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McLaughlin and the other moving parties respond by pointing out that Hannon’s bankruptcy estate included not only all claims belonging to Hannon as of May 3, 2012, when he first filed for bankruptcy, but also all other claims arising up until the time when the bankruptcy case was converted to a Chapter 7 proceeding, which occurred on January 3, 2012. See 11 U.S.C. § 1115(a)(1) (property of bankruptcy estate includes “all property of the kind specified in section 541 that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a chase under chapter 7, 12, or 13, whichever occurs first”); 11 U.S.C. § 541(a)(1) (bankruptcy estate includes “all legal or equitable interests of the debtor in property as of the commencement of the [bankruptcy] case”); Cole v. Pulley, 18 Mass. App. Ct. 950, 951 (1984) (rescript) (for purposes of § 541(a)(1), “property” includes “all interests of the debtor in rights of action” (quoting 4 Collier, Bankruptcy par. 541.10[1] (1983)).
As noted above, however, Hannon’s counterclaims and third-party claims are based in large part upon alleged acts or omissions by McLaughlin and his companies that occurred after Hannon’s bankruptcy case was converted to a Chapter 7 proceeding.
As a result, Hannon’s claims in this action were never part of his bankruptcy estate, and therefore could not be and were not released by the bankruptcy trustee.
2. Claims against Tri County. Hannon asserts two claims against Tri County. He alleges that Tri County would be unjustly enriched if Hannon is forced to pay any amount under the limited guaranty. In addition, Hannon claims that Tri County is liable under the note as a successor in interest to Recycling and Ware, and that Hannon has been harmed by Tri County’s alleged “plundering” of the assets of Recycling and Ware. The Court understands this to be a common law claim for indemnification on the theory that Tri County is legally obligated to repay the note to Holdings, and that if it does not do so and as a result Hannon is liable under his personal guaranty then he is entitled to full indemnification from Tri County.2 It does
2 “A person who, in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity from the other, unless the payor is barred by the wrongful nature of his conduct.” Suffolk Const. Co. v. Benchmark Mech. Sys., Inc., 475 Mass.
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not matter that Hannon labels this claim as one for “successor liability” rather than a claim for indemnification.3
When one corporation acquires the assets of another, “the liabilities of a selling predecessor corporation are not imposed upon the successor corporation which purchases its assets, unless (1) the successor expressly or impliedly assumes liability of the predecessor, (2) the transaction is a de facto merger or consolidation, (3) the successor is a mere continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid liabilities of the predecessor.” Guzman v. MRM/Elgin, 409 Mass. 563, 566 (1991).
The facts alleged by Hannon plausibly suggest that Tri County is liable to pay the amounts owed by Ware and Recycling to Holdings under a “de facto merger” or a “mere continuation” theory of successor liability. See generally Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 557-558 (2008) (summarizing factors characterizing de facto mergers and mere continuations).
As a result, Hannon has stated viable claims that if Tri County fails to pay those amounts, and as a result Hannon is compelled to pay Holdings under his personal guaranty, then Tri County would be unjustly enriched and Hannon would be entitled to restitution and indemnification from Tri County.
ORDER
The motion to dismiss Patrick J. Hannon’s counterclaims and third-party claims is DENIED.
6 June 2017
___________________________
Kenneth W. Salinger
Justice of the Superior Court
150, 154 (2016), quoting Santagate v. Tower, 64 Mass. App. Ct. 324, 330 (2005), quoting in turn Restatement of Restitution § 76 (1937).
3 See Gallant v. City of Worcester, 383 Mass. 707, 709 (1981) (complaint may allege facts plausibly suggesting that plaintiff has legally viable claim even if complaint does not name correct legal theory); Republic Floors of New England, Inc. v. Weston Racquet Club, Inc., 25 Mass. App. Ct. 479, 487 (1988) (plaintiff may press at trial any legal theory fairly raised by allegations in complaint, even if that theory is not expressly invoked in the complaint).

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Posted by Stephen Sandberg - June 16, 2017 at 10:15 pm

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Commonwealth v. Widener (Lawyers Weekly No. 11-079-17)

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

15-P-1743                                       Appeals Court

COMMONWEALTH  vs.  JAMES L. WIDENER.

No. 15-P-1743.

Plymouth.     April 13, 2017. – June 15, 2017.

Present:  Kafker, C.J., Grainger, & Kinder, JJ.

Firearms.  Practice, Criminal, Motion to suppress, Required finding, Witness, Sentence.  Evidence, Immunized witness, Prior conviction.  Witness, Immunity.  Assault and Battery by Means of a Dangerous Weapon.

Indictments found and returned in the Superior Court Department on March 25, 2011.

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Posted by Stephen Sandberg - June 16, 2017 at 6:40 pm

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Aqua King Fishery, LLC v. Conservation Commission of Provincetown (Lawyers Weekly No. 11-081-17)

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-1366                                        Appeals Court

AQUA KING FISHERY, LLC  vs.  CONSERVATION COMMISSION OF PROVINCETOWN.

No. 16-P-1366.

Barnstable.     April 13, 2017. – June 16, 2017.

Present:  Kafker, C.J., Grainger, & Kinder, JJ.

Shellfish.  Municipal Corporations, By-laws and ordinances, Conservation commission, Shellfish.  Wetlands Protection Act.  Fisheries.

Civil action commenced in the Superior Court Department on February 13, 2015.

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Posted by Stephen Sandberg - June 16, 2017 at 3:05 pm

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Commonwealth v. Saywhan (Lawyers Weekly No. 11-080-17)

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-1098                                       Appeals Court

COMMONWEALTH  vs.  BENJAMIN B. SAYWAHN, JR.

No. 16-P-1098.

Hampden.     April 13, 2017. – June 15, 2017.

Present:  Kafker, C.J., Grainger, & Kinder, JJ.

FirearmsSearch and Seizure, Protective sweep.  Constitutional Law, Search and seizure.

Complaint received and sworn to in the Springfield Division of the District Court Department on February 4, 2016.

A pretrial motion to suppress evidence was heard by William P. Hadley, J.

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Posted by Stephen Sandberg - June 16, 2017 at 11:30 am

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Geanacopoulos v. Philip Morris USA Inc. (Lawyers Weekly No. 12-070-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT.
9884CV06002-BLS1
____________________
THOMAS GEANACOPOULOS, on behalf of himself and a class
v.
PHILIP MORRIS USA INC.
____________________
MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR DISPOSITION OF RESIDUAL FUNDS
Judge Leibensperger found after a lengthy bench trial that, “for more than twenty-eight years until 1999,” Philip Morris USA, Inc., “knowingly and willfully marketed Marlboro Lights as a cigarette less harmful or safer than Marlboro Reds without sufficient evidence to substantiate that claim.” Judge Leibensperger concluded that in so doing Philip Morris deliberately deceived Massachusetts consumers in violation of G.L. c. 93A. He awarded statutory damages of $ 25 per class member, or an estimated total of $ 4,942,500, plus prejudgment interest. The parties then entered into a settlement agreement to govern the distribution of this award to eligible class members. Philip Morris paid $ 15,273,815 to fund the settlement.
Given the number of class members who have been identified, the parties expect that residual funds totaling roughly $ 6.8 million will be left in the settlement fund after the distribution of the statutory damages plus interest to each class member and the payment of all authorized expenses.
Plaintiffs have asked the Court to approve distribution of the residual funds. The distribution of such residual funds in a class action is governed by Mass. R. Civ. P. 23(e). It provides that any such residual funds “shall be disbursed [a] to one or more nonprofit organizations or foundations (which may include nonprofit organizations that provide legal services to low income persons) which support projects that will benefit the class or similarly situated persons consistent with the objectives and purposes of the underlying causes of action on which relief was based, or [b] to the Massachusetts IOLTA Committee to support activities and programs that promote access to the civil justice system for low income residents of the Commonwealth of Massachusetts.” Rule 23(e)(2). This rule is similar in aim to common law cy pres doctrine, which governs the disposition of property dedicated for
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charitable purposes where the original purposes had become impossible or impracticable.1
In their original motion, Plaintiffs asked that $ 1.6 million be distributed to each of four non-profit organizations or sets of programs—the Campaign for Tobacco-Free Kids, the Massachusetts General Hospital Tobacco 21 and CEASE Programs, the University of Massachusetts Medical School Center for Tobacco Treatment and Research and Training, and Northeastern University’s Public Health Advocacy Institute—and that any remaining residual funds (which Plaintiffs estimated would amount to roughly $ 383,500) be distributed to the Massachusetts IOLTA Committee.
After the Massachusetts IOLTA Committee objected to this proposal, the Plaintiffs and the Committee agreed upon an alternative recommendation.
Plaintiffs and the Committee now jointly request that forty percent of the residual funds be paid to the Massachusetts IOLTA Committee. Plaintiffs recommend that the remainder be distributed in equal shares of fifteen percent each to the four public health organizations listed above. The Committee no longer takes any position as to whether distributing money to any or all of those organizations would be proper.
Distribution of a portion of the residual funds to the Massachusetts IOLTA Committee is permissible and appropriate because it is specifically authorized by Rule 23(e)(2).
The Court finds that it would also be proper and appropriate to distribute a portion of the residual funds to the Campaign for Tobacco-Free Kids, the Massachusetts General Hospital Tobacco 21 and CEASE Programs, the University of Massachusetts Medical School Center for Tobacco Treatment and Research and Training, subject to the condition that each organization used any such funds for their charitable activities in Massachusetts. For the reasons stated in Plaintiffs’ written submissions, the Court finds that such use of residual funds by these three organizations or programs will benefit Massachusetts residents who are members or
1 See generally Board of Selectmen of Provincetown, 15 Mass. App. Ct. 639, 646 (1983) (summarizing cy pres doctrine).
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the plaintiff class or are similarly situated, and will do so in a manner consistent with the objectives and purposes of this class action.
The Court declines to authorize the distribution of any portion of the residual funds to Northeastern University’s Public Health Advocacy Institute in order to avoid any appearance that the selection of funding recipients was not made on the merits. One of the lead attorneys representing the plaintiff class in this lawsuit serves as PHAI’s litigation director and as director of PHAI’s Center for Public Health Litigation. The Court fully credits PHAI’s showing that this individual will not benefit personally from any residual funds that may be distributed to PHAI. Nonetheless, the Court is convinced that it should not authorize any distribution to PHAI in order to avoid any appearance of impropriety.2
In the exercise of its discretion, the Court will order that the Massachusetts IOLTA Committee receive 55 percent of the residual funds and that other three organizations or programs discussed above, other than the PHAI, each receive 15 percent of the residual funds.
ORDER
Plaintiffs’ motion for disposition of residual funds is ALLOWED IN PART. The Court hereby orders that any residual funds available in the Settlement Fund after paying or accounting for all permissible distributions to class members and all allowable expenses shall be distributed as follows: (1) 55 percent of the total residual funds shall be paid to the Massachusetts IOLTA Committee to support activities and programs that promote access to the civil justice system for low income residents of the Commonwealth of Massachusetts; (2) 15 percent shall be paid to the Campaign
2 Cf. Weeks v. Kellogg Co., No. CV 09-08102(MMM)(RZx), 2013 WL 6531177, *19 (C.D. Cal. 2013) (Morrow, J.) (declining to approve cy pres distribution to local food bank that had a “preexisting relationship with certain of plaintiffs’ counsel”); In re Linerboard Antitrust Litigation, MDL No. 1261, 2008 WL 4542669, *5 (E.D. Pa. 2008) (DuBois, J.) (declining to approve cy pres distribution to Public Interest Law Center of Philadelphia because attorney that appeared in case “currently serves in a lead role at PILCOP”); see generally American Law Institute, draft Principles of the Law of Aggregate Litigation, § 3.07, comment b (2009) (“a cy pres remedy should not be ordered if the court or any party has any significant prior affiliation with the intended recipient that would raise substantial questions about whether the selection of the recipient was made on the merits”).
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for Tobacco-Free Kids, to be used only for programs or activities in Massachusetts; (3) 15 percent shall be paid to the Massachusetts General Hospital’s Tobacco 21 and CEASE Programs, to be used only for programs or activities in Massachusetts; and (4) 15 percent shall be paid to the University of Massachusetts Medical School’s Center for Tobacco Treatment and Research and Training, to be used only for programs or activities in Massachusetts.
June 9, 2017
___________________________
Kenneth W. Salinger
Justice of the Superior Court

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Posted by Stephen Sandberg - June 16, 2017 at 7:56 am

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The Gillette Company v. Provost, et al. (Lawyers Weekly No. 12-071-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT.
1584CV00149-BLS2
____________________
THE GILLETTE COMPANY
v.
CRAIG PROVOST, JOHN GRIFFIN, WILLIAM TUCKER, DOUGLAS KOHRING, and SHAVELOGIC, INC.
____________________
MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION TO REPORT SUMMARY JUDGMENT DECISION PURSUANT TO RULE 64
In prior rulings, the Court dismissed or granted partial summary judgment against all of The Gillette Company’s claims. Most recently the Court decided that the remaining Defendants are entitled to summary judgment on Gillette’s claims that four of its former employees helped ShaveLogic, Inc., develop a new disposable cartridge shaving razor using Gillette’s confidential information. The only remaining claims to be decided are ShaveLogic’s counterclaims that Gillette intentionally interfered with prospective business relations and violated c. 93A, by threatening to bring and then filing baseless legal claims in an attempt to keep ShaveLogic from entering the market for so-called wet-shaving products.
When the Court granted partial summary judgment in Defendants’ favor on Gillette’s “confidential information” claims, it did not enter separate and final judgment under Mass. R. Civ. P. 54(b) because doing so would be inconsistent with the appellate courts’ strong policy against piecemeal appeals.1 Gillette therefore has no right to appeal the Court’s interlocutory decision granting partial summary judgment in Defendants’ favor on what had been Gillette’s remaining claims.2
Gillette has now asked the Court to report its summary judgment decision for interlocutory appellate review under Mass. R. Civ. P. 64(a). The Court will DENY this request for the reasons discussed below.
1 See Long v. Wichett, 50 Mass. App. Ct. 380, 388-404 (2000) (separate judgment held inconsistent with “bedrock policy against premature and piecemeal appeals”).
2 See Morrissey v. New England Deaconess Ass’n—Abundant Life Communities, Inc., 458 Mass. 580, 594 (2010) (in absence of separate and final judgment, “no appeal can be taken from a trial judge’s partial ‘judgment’ on a claim prior to entry of a final judgment disposing of all claims against all parties to the action”).
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Rule 64(a) authorizes a trial court to report an interlocutory order to the appeals court for immediate review. However, “[s]uch a report should be reserved for novel and difficult issues, the appellate decision of which may expedite resolution of the case.” Morrison v. Lennett, 415 Mass. 857, 859 (1993). “Interlocutory matters should be reported only where it appears that they present serious questions likely to be material in the ultimate decision, and that subsequent proceedings in the trial court will be substantially facilitated by so doing.” Globe Newspaper Co. v. Massachusetts Bay Transp. Auth. Ret. Bd., 412 Mass. 770, 772 (1992), quoting John Gilbert Jr. Co. v. C.M. Fauci Co., 309 Mass. 271, 273 (1941).
Gillette argues that the summary judgment decision in this case turned on the resolution of two unsettled questions of law that should be reviewed by the Appeals Court before ShaveLogic’s counterclaims go to trial. The Court is not convinced.
1. Third-Party Patent Disclosures. Gillette believes that the Court erred in ruling that disclosure of a design concept by a third-party in a patent establishes that the concept is not confidential. Although Gillette concedes that a third-party patent disclosure defeats any claim of confidentiality if the disclosure is well known to others, it argues that information can still be protected as confidential if it is disclosed in an obscure third-party patent that is not generally known in the relevant field.
This issue does not warrant an interlocutory report and review for two reasons.
To begin with, the principle that a business cannot seek to protect as confidential any information that is known by someone outside the business, even if it is not generally known in the industry, is well established under Massachusetts law. See, e.g., Augat, Inc. v. Aegis, Inc., 409 Mass. 165, 170 (1991) (sales volume “known outside the business” by several securities analysts was not confidential). For example, an employee is free to carry away his or her memory of customers’ names, needs, and habits and to use that information to solicit business from those very customers. Such “remembered information” is not confidential because the information itself, as distinguished from an employer’s compilation of such information into a list or database, is known to the customers and thus not kept secret by the employer. American Window Cleaning Co. of Springfield, Mass. v. Cohen, 343 Mass. 195, 199 (1961) (“Remembered information as to the plaintiff’s prices, the
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frequency of service, and the specific needs and business habits of particular customers was not confidential.”); accord Woolley’s Laundry v. Silva, 304 Mass. 383, 391-392 (1939); May v. Angoff, 272 Mass. 317, 320 (1930). There is no good reason why the sharing of information with a few securities analysts as in Augat, or between one customer and one service provider as in American Window, would destroy any claim of confidentiality but disclosure of information in a public patent would not.
In any case, the legal question flagged by Gillette regarding third-party patent disclosures is immaterial because Gillette concedes that the general concepts of designing razors using a front-loading engagement, a magnetic attachment, or an elastomeric pivot are not confidential to Gillette. In its prior decision, the Court noted that Gillette had made this concession during the summary judgment oral argument. It nonetheless went on to explain why the undisputed summary judgment record was consistent with Gillette’s concession. The Court discussed third-party patent disclosures only as part of its explanation of why it made sense for Gillette to concede that these three general design concepts were not confidential. Those parts of the Court’s decision played no other role in its analysis. More recently, during oral argument on Gillette’s motion for a report under Rule 64, Gillette expressly reiterated its concession that these general design concepts are not confidential as a matter of fact. It therefore does not matter whether the Court’s prior discussion of third-party patent disclosures was correct or incorrect as a matter of law.
As the Court explained in its prior summary judgment ruling, the ShaveLogic defendants were entitled to judgment in their favor as a matter of law because Gillette could not muster any evidence any evidence that ShaveLogic used any Gillette confidential information in developing any product. That prior ruling did not turn on any novel and difficult issue of law. It turned Gillette’s inability to any present evidence to support its claims.
Gillette reiterates its prior argument that the expert opinion of its expert witness, that misuse of Gillette confidential information gave ShaveLogic a head start in designing its razor, creates a triable jury question. That argument is still incorrect for the reasons that the Court discussed in its prior decision. Although Gillette’s expert opined that Defendants must have used Gillette confidential
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information to design ShaveLogic’s razors, he reached that conclusion based on his mistaken assumption that the general design concepts of front-loading engagements, magnetic attachments, and an elastomeric pivot or loop are confidential information that belong to Gillette. That assumption was incorrect, as Gillette again conceded during oral argument on its Rule 64 motion for a report.
In sum, since Gillette’s arguments regarding the legal significance of third-party patent disclosures are completely immaterial—in light of Gillette’s repeated concession that the concepts of front-loading engagements, magnetic attachments, and elastomeric pivots are not confidential—they provide no reason to report the summary judgment decision for interlocutory appellate review. See Globe Newspaper Co., 412 Mass. at 772-773 (discharging report because appeal from interlocutory decision would not dispose of central issue material to ultimate decision).
2. Obvious Combination of Disclosed Razor Design Features. The second issue that Gillette believes merits interlocutory appellate review concerns the Court’s prior ruling that, given the evidence that the ideas of designing a razor using a front-loading engagement with the razor cartridge or of attaching the cartridge to the handle at a single point were both well-known in the industry, it would have been obvious to anyone skilled in the art that one could combine the two concepts and design a front-end loading razor that attaches to the cartridge at a single point.
Gillette contends that the Court made an error of law because obviousness plays no part in whether information is confidential under Massachusetts law. It also contends that the Court made an error of fact because no record evidence demonstrated that such a combination was obvious. Neither of these contentions justifies interlocutory review of the summary judgment decision.
With respect to the first point, the principle that obvious concepts are not confidential does not raise any novel or difficult question of law that would merit interlocutory review. Obvious engineering or design concepts are not confidential information. See Dynamics Research Corp. v. Analytic Sciences Corp., 9 Mass. App. Ct. 254, 267 (1980) (concepts that would be obvious to an inertial guidance engineer were not protectable as trade secrets). Since obvious concepts are not confidential, obvious combinations of them are not confidential either. See Strategic Directions
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Grp., Inc. v. Bristol-Myers Squibb Co., 293 F.3d 1062, 1065 (8th Cir. 2002) (obvious combination of known elements not a trade secret); Julie Research Labs., Inc. v. Select Photographic Eng’g, Inc., 998 F.2d 65, 67 (2d Cir. 1993) (particular combination of design choices not a trade secret if “obvious, widely known, easy for others to discover legitimately, or disclosed” publicly by manufacturer).
With respect to the second point, the Court’s prior opinion was not as clear and precise as it should have been. The issue before the court was not whether the summary judgment record demonstrated that combining front-loading engagements and a single point of attachment was an obvious design option. Rather, the issue was whether Gillette could present any evidence that such a combination was not obvious.
This is not a patent infringement case, in which a defendant charged with infringement would have the burden of proving that a particular patent claim was obvious and thus not patentable. Instead, Gillette had the burden of proving its claims that Defendants misused Gillette’s confidential information, which includes the burden of proving that any concepts reflected in ShaveLogic’s razor designs would not have been obvious to someone skilled in the art.
As a result, Gillette’s failure to muster any evidence that a combination of the well-known concepts of front-loading engagements and single points of attachment was not obvious means that Defendants were entitled to summary judgment on that aspect of Gillette’s claims. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 715 (1991) (“If the nonmoving party cannot muster sufficient evidence to make out its claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law.” (quoting Celotex Corp. v. Catret, 477 U.S. 317, 328 (1986) (White, J., concurring)).
ORDER
Plaintiff’s motion to report the recent summary judgment decision under Mass. R. Civ. P. 64 is DENIED.
June 9, 2017
___________________________
Kenneth W. Salinger
Justice of the Superior Court

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Posted by Stephen Sandberg - June 16, 2017 at 4:21 am

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