International Brotherhood of Electrical Workers Local No. 129 Benefit Fund v. Tucci, et al. (and eight companion cases) (Lawyers Weekly No. 10-038-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12137 International Brotherhood of Electrical Workers LOCAL NO. 129 BENEFIT FUND[1] vs. JOSEPH M. TUCCI & others[2] (and eight consolidated cases[3]). Suffolk. November 7, 2016. – March 6, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Corporation, Stockholder’s derivative suit, Merger, Sale of assets, Valuation of stock, Board of directors. Practice, Civil, Class action, Dismissal. Civil actions commenced in the Superior Court Department on October 15, October 16, October 19, October 20, October 23, October 28, and October 29, 2015. After consolidation, a motion to dismiss was heard by Edward P. Leibensperger, J. The Supreme Judicial Court granted an application for direct appellate review. Jason M. Leviton (Michael G. Capeci, of New York, & Joel A. Fleming also present) for International Brotherhood of Electrical Workers Local No. 129 Benefit Fund & others. Thomas J. Dougherty (Kurt Wm. Hemr also present) for Joseph M. Tucci & others. John Pagliaro & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief. Ian D. Roffman & Matthew J. Connolly, for Associated Industries of Massachusetts, amicus curiae, submitted a brief. BOTSFORD, J. In these consolidated cases, shareholders of a publicly traded corporation claim that a merger transaction proposed by the board of directors will result in the effective sale of the corporation for an inadequate price. The question we consider is whether they may bring that claim directly against the board members, or must bring it as a derivative claim on behalf of the corporation. We answer that the claim must be brought derivatively.[4] Background. The plaintiffs appeal from the dismissal of their first amended class action complaint (complaint)[5] alleging breaches of fiduciary duty by the board of directors of EMC Corporation (EMC) arising from a merger between EMC and Denali Holding Inc. and Dell Inc. (collectively, Dell). At the time that they commenced these actions, the plaintiffs were shareholders of EMC; the proposed merger would result in the shareholders receiving a cash payment in exchange for their EMC stock. The plaintiffs’ complaint alleges that they bring the actions on behalf of a class consisting of “all other shareholders of EMC . . . who are or will be deprived of the opportunity to maximize the value of their shares of EMC […]
Categories: News Tags: 1003817, Benefit, Brotherhood, cases, companion, Eight, Electrical, Fund, International, Lawyers, Local, Tucci, Weekly, Workers
Service Employees International Union, Local 509, et al. v. Auditor of the Commonwealth, et al. (Lawyers Weekly No. 10-186-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12126 SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509, & others[1] vs. AUDITOR OF THE COMMONWEALTH & others.[2] Suffolk. September 6, 2016. – December 9, 2016. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Privatization Act. Auditor. Commissioner of Mental Health. Public Welfare, Department of Health and Human Services. Mental Health. Practice, Civil, Action in nature of certiorari. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 8, 2016. The case was reported by Spina, J. Ian O. Russell (Katherine D. Shea & James F. Lemond with him) for the plaintiffs. Bryan F. Bertram, Assistant Attorney General (Daniel J. Hammond, Assistant Attorney General, with him) for the defendants. LENK, J. The plaintiffs, Service Employees International Union, Local 509 (SEIU), the Massachusetts Nurses Association, and the American Federation of State, County and Municipal Employees, Council 93, challenge a decision by the Auditor of the Commonwealth approving a proposed privatization contract pursuant to G. L. c. 7, §§ 52-55 (Pacheco Law). The Pacheco Law establishes “[p]rocedures that agencies must follow when beginning the bidding process for and entering into a privatization contract.” Massachusetts Bay Transp. Auth. v. Auditor of the Commonwealth, 430 Mass. 783, 786 (2000) (MBTA). The Auditor of the Commonwealth must review all privatization proposals to determine if they comply with the Pacheco Law. Id. In January, 2016, the Department of Mental Health (DMH) submitted a proposal to the Auditor that would privatize certain of its State-run mental health services. Under the terms of the proposal, the Massachusetts Behavioral Health Partnership (MBHP), a privately owned State-wide mental health provider, would take over from DMH the provision of mental health services in the Southeast region of Massachusetts. In March, 2016, the Auditor issued a written decision concluding that DMH’s privatization proposal met the requirements of the Pacheco Law, specifically, that the privatization was procured properly, that it would not result in a net cost to the Commonwealth, and that it would not cause a decline in the quality of mental health services provided in the Southeast region. The plaintiffs then filed a petition in the nature of certiorari in the county court, seeking review of the Auditor’s decision. A single justice reserved and reported the matter to the full court. We conclude that the […]
Service Employees International Union, Local 509 v. Department of Mental Health, et al. (Lawyers Weekly No. 11-180-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12035 SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509 vs. DEPARTMENT OF MENTAL HEALTH & others.[1] Suffolk. September 6, 2016. – November 22, 2016. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Privatization Act. Commissioner of Mental Health. Commonwealth, Contracts. Contract, Validity. Public Employment. Laches. Practice, Civil, Judgment on the pleadings. Civil action commenced in the Superior Court Department on February 15, 2012. Following review by this court, 469 Mass. 323 (2014), the case was heard by Janet L. Sanders, J., on motions for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Ian O. Russell (Katherine D. Shea with him) for the plaintiff. Iraida J. Álvarez, Assistant Attorney General, for Department of Mental Health. Carl Valvo & Ariel G. Sullivan, for Advocates, Inc., & others, were present but did not argue. Mark G. Matuschak & Robert Kingsley Smith, for Pioneer Institute, Inc., were present but did not argue. Anita S. Lichtblau & Robert E. Cowden, III, for Massachusetts Council of Human Services Providers, Inc., & others, amici curiae, submitted a brief. LENK, J. This is the second time that the plaintiff labor union appeals from dismissal of the declaratory judgment action it first brought against the Department of Mental Health (DMH or agency) in 2012. Service Employees International Union, Local 509 (SEIU or union) maintains that certain contracts DMH made in 2009 with private vendors are “privatization contracts” subject to the requirements of the Pacheco Law, G. L. c. 7, §§ 52-55. The Pacheco Law establishes certain prerequisites that agencies must meet when seeking to enter into privatization contracts. Because DMH had determined that the subject contracts were not privatization contracts, however, it did not comply with those statutory prerequisites. In bringing this action, the union seeks, among other things, a declaration invalidating the contracts on the basis of G. L. c. 7, § 54 (§ 54), which provides that no privatization contract “shall be valid” where an agency did not follow the necessary procedures. In our previous decision in this case, Service Employees Int’l Union, Local 509 v. Department of Mental Health, 469 Mass. 323, 324 (2014) (SEIU I), we rejected DMH’s contention that the union lacked standing to challenge, in a declaratory judgment action, the agency’s unilateral determination that the contracts were not […]
City of Springfield v. Local Union No. 648, International Association of Firefighters, AFL-CIO (Lawyers Weekly No. 11-107-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1691 Appeals Court CITY OF SPRINGFIELD vs. LOCAL UNION NO. 648, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO. No. 13-P-1691. Hampden. September 11, 2014. – August 13, 2015. Present: Trainor, Rubin, & Sullivan, JJ. Fire Fighter, Appointment. Arbitration, Fire fighters, Authority of arbitrator, Damages. Labor, Fire fighters, Arbitration, Civil service, Damages. Civil Service, Fire fighters, Appointment. Contract, Collective bargaining contract. Damages, Back pay. Civil action commenced in the Superior Court Department on December 14, 2011. The case was heard by John S. Ferrara, J., on motions for judgment on the pleadings; a motion for reconsideration was heard by him; and entry of a final judgment was ordered by him. Albert R. Mason for the plaintiff. Joseph G. Donnellan for the defendant. RUBIN, J. The city of Springfield (city) appeals from a judgment of the Superior Court confirming a labor arbitration award issued in favor of a public employee union representing firefighters, Local 648, International Association of Firefighters, AFL-CIO (union). We affirm. Background. Because the arbitration award incorporated by reference certain legal conclusions of the Civil Service Commission (commission), we first summarize the commission proceedings, followed by the arbitration proceedings. Under the civil service law, G. L. c. 31, in order to fill a vacant position, the city may appoint either a “permanent” replacement, or, if the vacancy or the position is temporary, a “temporary” replacement. See G. L. c. 31, §§ 6-8. In either event, the appointment must be made through the detailed procedural steps set out in the civil service law. As the commission ultimately found, for an extended period of time the city’s appointments to vacant positions in the fire department did not comply with the above requirements. Rather, in 2009 and 2010, the city filled certain vacancies in its fire department not by promoting firefighters, but by making extended appointments of firefighters to higher-ranking civil service positions on an “acting” basis. These firefighters were paid additional out-of-grade compensation pursuant to the terms of art. 31 of the collective bargaining agreement (CBA) between the union and the city. Even with this additional out-of-grade amount, their compensation and other benefits fell short of that set forth in the CBA for the positions in which they were serving. The city’s justification for this discrepancy was that the firefighters were serving only on an “acting” basis. […]
Categories: News Tags: 1110715, AFLCIO, Association, City, Firefighters, International, Lawyers, Local, Springfield, Union, Weekly
Town of Athol v. Professional Firefighters of Athol, Local 1751, I.A.F.F. (Lawyers Weekly No. 10-174-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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-11640 TOWN OF ATHOL vs. PROFESSIONAL FIREFIGHTERS OF ATHOL, LOCAL 1751, I.A.F.F. October 23, 2014 Fire Fighter, Municipality’s liability. Labor, Fire fighters, Health benefit plan, Arbitration, Collective bargaining. Municipal Corporations, Fire department, Insurance, Collective bargaining. Public Employment, Collective bargaining. Contract, Collective bargaining contract. This appeal arises from an action in the Superior Court challenging an arbitrator’s determination that the town of Athol (town) violated its collective bargaining agreement (CBA) with the Professional Firefighters of Athol, Local 1751, I.A.F.F. (union) by unilaterally increasing copayment amounts that union members pay for medical services under their health insurance plans. The judge confirmed the portion of the arbitration award compelling the parties to bargain collectively over changes to copayment rates, but vacated two remedial aspects of the award. The Appeals Court affirmed.[1] We granted the union’s application for further appellate review to address the question whether the Superior Court judge erred in vacating any portion of the award. We reverse in part and remand for the entry of a judgment confirming the award in its entirety. Background. After the town unilaterally increased copayment amounts for medical services, the union filed a grievance under the parties’ CBA. It alleged that health insurance benefits are mandatory subjects of collective bargaining, and that any changes must be brought to successor contract bargaining. An arbitrator concluded that such changes are a mandatory subject of collective bargaining and that the town violated the CBA by making the changes unilaterally. As a remedy, the arbitration award required the town, among other things, to restore the cost and structure of copayments to the status quo ante and to make union members whole for economic losses resulting from the change in copayment rates. The town filed a complaint in the Superior Court seeking to vacate the award and for other relief. Discussion. Except in the narrow circumstances described in G. L. c. 150C, § 11, a judge may not vacate an arbitrator’s award. Bureau of Special Investigations v. Coalition of Pub. Safety, 430 […]
Service Employees International Union, Local 509 v. Department of Mental Health (Lawyers Weekly No. 10-138-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReportersjc.state.ma.us SJC-11544 SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509 vs. DEPARTMENT OF MENTAL HEALTH. Suffolk. April 7, 2014. – August 15, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Privatization Act. Commissioner of Mental Health. Auditor. Declaratory Relief. Practice, Civil, Declaratory proceeding, Standing, Parties, Failure to join party. Civil action commenced in the Superior Court Department on February 15, 2012. The case was heard by Merita A. Hopkins, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Alfred Gordon O’Connell for the plaintiff. Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendant. Donald J. Siegel & James A.W. Shaw, for Massachusetts AFL-CIO, amicus curiae, submitted a brief. Gerald A. McDonough, for the Auditor of the Commonwealth, amicus curiae, submitted a brief. LENK, J. The plaintiff, Service Employees International Union, Local 509 (union), appeals from an order of a Superior Court judge dismissing its complaint for declaratory judgment pursuant to G. L. c. 231A, §§ 1, 2, and 5. In that complaint, the union alleged that the Department of Mental Health (DMH) violated the Massachusetts privatization statute, G. L. c. 7, §§ 52-55 (Pacheco Law), by entering into contracts with private entities to obtain services substantially similar to those performed by members of the union, but failing to comply with relevant statutory obligations. DMH filed an answer as well as a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). After a hearing, the judge granted DMH’s motion, which she treated as a motion to dismiss for lack of subject matter jurisdiction under Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754 (1974). The judge determined that the union lacked both direct and associational standing to seek declaratory relief and, additionally, that the union’s failure to join necessary parties constituted a separate jurisdictional bar requiring dismissal. The judge did not err in declining to consider the union’s complaint on the basis of its failure to name all necessary parties. However, because we conclude that the union has direct standing to seek a declaratory judgment under G. L. c. 231A that would invalidate the contracts at issue, we remand the case to the Superior Court for the limited purpose of allowing the union to seek leave to amend […]
After Earth in Local Theaters Today (Sponsored)
After Earth, in theaters now, promises to be the movie event of the summer – and how could it not be, with Will Smith and his son Jaden starring as stranded space rangers—one still in training—on the unrecognizable planet Earth 1,000 years in the future. All grown up since the last time he shared the screen with his dad in The Pursuit of Happyness, Jaden plays a teenager named Kitai Raige, who reaches out to the father he never knew, a legendary ranger named Cypher, for a little guidance. An interplanetary mission meant to be a bonding experience ends in a crash that injures Cypher, leaving Kitai alone on the ground to survive with some help from dad. Some lessons, like how to escape a blood-thirsty alien and act like a man, are best left to dad to teach, and make you realize every day is father’s day. Directed and co-written by M. Night Shyamalan, After Earth offers a classic coming-of-age tale with mind-blowing special effects and acting to match. So grab your cozy sweatshirt and prepare for the ultimate father-son adventure! After Earth Now Playing in theaters. Click here for ticket information and showtimes. TELL US: Patch wants your movie reviews! Come back and tell us in comments the movie you saw, what you thought about it and how many stars out of five you would give the film. South End Patch
Local Woman Helps Run Girls Soccer Club in Haiti
What began as a 10-day trip to Haiti in 2011 for Taryn Silver turned into a new home and about 50 new friends. Silver, a former Sharon resident, helps run the Association Sportives des Jeunes Filles de Fond des Blancs (The Sports Association of Young Women of Fond des Blancs), a girls soccer club in the rural town of Fond-des-Blancs, about 70 miles west of the Haitian capital of Port-au-Prince. Silver moved to Haiti in 2012 to work for the St. Boniface Haiti Foundation in Fond-des-Blancs. It was there where she met Andover native Molly Klarman who had started the club last year. “On the streets and fields in Haiti you almost always see only boys playing soccer. This club offers the girls of Fond-des-Blancs a chance to play soccer, exercise, and have fun,” Silver said in an email to Sharon Patch. “We have 53 girls on our roster. The ages range from 13-22 with a few girls who are older (24, 26, 28). All of our girls are in school and live within a 35-minute walk to the practice field,” she said. The club offers an opportunity that Haitian women rarely get due to lack of funding, time and also due to the cultural roles Haitian men and women often play, Silver said. “Most girls that go to school have tons of chores they are responsible for doing after school. Including getting water, cooking food for the family, doing laundry and taking care of younger siblings,” she said. “I think it has mainly been for boys because of the gender roles in Haitian culture. We hope this club will help to shift those in the community and offer the girls a chance to be in the spotlight,” said Silver. When it first began the club had 20 girls. This year the roster has more than doubled in size. “Molly and I visited the schools in the community [in January] to invite new girls who might be interested. We thought we might have 25 girls interested, but now we have over 50 and girls keep showing interest,” said Silver. Silver said the club has been a success because it is fun for the women and it gives them confidence. Some of the girls shared why they like soccer and what the club means to them. The following are statements from some of the girls in the club that have been translated from Creole into English: Marie Danise Azor – 16 years old “I want to play soccer, because I love it so much. It is something important and that’s reason I want to play […]
Local Veterans Face Long Waits for VA Benefits
Returning veterans are now facing a new enemy at home—long wait times for their disability claims. The waiting times started increasing in 2010 when U.S. troops were withdrawn from Iraq causing a dramatic uptick in first-time filers, according to the Center for Investigative Reporting. The data found that in most regional VA offices, not only did waiting times increase, but they vary dramatically with location: about 508 days in Baltimore, Maryland and 134 days in Fargo, North Dakota. The national average now stands at about 11 months, which is dramatically higher than in 2009 when it was 116 days. Claims sent to the VA’s Boston office take on average 411.6 days to process a disability claim. That’s more than 13 months before the average claimant gets a decision. The backlog has also partly been blamed on the VA still using paper to process their claims. In 2011, the Department started implementing a computerized system in several of its regional offices. However, despite spending $ 537 million on the new program and employing 3,300 claims processors, 97 percent of veterans’ claims are still on paper. Still, Secretary of Veterans Affairs Eric Shinseki pledged back in March that the VA will end the enormous backlog by 2015. While Memorial Day, which is celebrated this Monday, is officially a day for remembering and honoring military personnel who died in the service of their country, in practice it’s often a day to recognize living veterans locally. The data above was obtained by The Center for Investigative Reporting from the Department of Veteran’s Affairs and is updated weekly. South End Patch
Local Author Selling Children’s Book on Dogs in South End
When author and journalist Scott Fayner was trying to decide what his next project would be, he looked around him. And saw dogs. Lots of dogs. That’s because at the time, Fayner was working at a dog daycare facility. Talk about drawing inspiration from your daily life. Fayner said he grew up with dogs and knew a lot about dogs, so the idea just seemed natural to him. “I wanted to help children learn from a young age about breeds and their characteristics and energy levels, so when they grow up they’ll have a better knowledge about which ones to choose,” he said. “If you have a breed like a Jack Russel Terrier in an apartment when you work all day they will ruin your house, and they end up in pounds, so it was a great project to help try to prevent that.” His new book, written with co-author Katie Bazaz, is called the ABCs of DOGs, and takes children through all the different dog breeds from A-Z, with two dogs for each letter of the alphabet. On the last page is a place for children to imagine their own type of dog breed with the characteristics that they like the best. Fayner met his co-author Bazaz, through their job at the dog daycare center. Although Fayner had experience with writing, Bazaz did not, and neither had any experience with publishing. “Katie had never been a part of something like this, but and she was really great,” Fayner said. “I never could have done this without her.” Through his work on the book, Fayner said the most interesting thing he learned was more about smaller breeds of dogs. “I’ve always liked big dogs, so I looked at smaller breeds as one type, like they were all the same,” he said. “But they really are not and have all different personalities.” “I also learned it’s not easy to write a book,” he said. The book is currently on sale atSooki, a women’s clothing and boutique store owned by Fayner’s mother, Suzan Griffith. Fayner said besides Amazon.com, the store is the only place where you can find his book right now, and based on how passionate South End residents are about their dogs, he thinks it’s a good fit. “The South End community is passionate about their dogs and treating them properly,” he said. “It’s a good way for young people to get started loving dogs, and maybe they’ll want a career working with dogs one day.” And maybe it isn’t just for kids. “What’s funny is that a lot of adults read it and they’re like, ‘I learned so […]