Posts tagged "Sales"

State Road Auto Sales, Inc. v. Massachusetts Division of Banks (Lawyers Weekly No. 09-013-18)

State Road Auto Sales, Inc., seeks a preliminary injunction that would bar the Massachusetts Division of Banks from completing an ongoing adjudicatory hearing. The Division brought administrative charges asserting that State Road violated G.L. c. 255B, which governs retail installment sales of motor vehicles, by acting as a “motor vehicle sales finance company” without a license and by entering into illegal motor vehicle installment sales with individual consumers. The Legislature authorized the Commissioner of Banks to implement and enforce c. 255B.
State Road is entitled to contest those charges through an evidentiary proceeding before a Division hearing officer. State Road argues that the Division’s administrative charges and adjudicatory proceeding are barred by State Road’s recent settlement of a class action brought on behalf of consumers who entered into motor vehicle leases with State Road that were in effect after October 21, 2013, and were signed before January 1, 2016. More specifically, State Road argues that the order approving the class action settlement deprived the Division of subject matter jurisdiction to decide the pending administrative charges and, in the alternative, that the prior settlement has collateral estoppel or issue preclusive effect that would bar the Division from exercising its jurisdiction over State Road.
The Court concludes that State Road is not entitled to preliminary injunctive relief because it has failed to exhaust its administrative remedies and therefore is not likely to succeed on the merits of its claims. Cf. Fordyce v. Town of Hanover, 457 Mass. 248, 266 (2010) (vacating preliminary injunction because plaintiffs were “unlikely to succeed on the merits”).
The Division of Banks has already began an enforcement action against State Road, those adjudicatory proceedings are still pending, and the determination of
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whether the Division can prosecute and decide the administrative charges turns on disputed issues of fact and not pure issues of law.
Under these circumstances, State Road must exhaust its administrative remedies at the Division before seeking to challenge the Division’s exercise of jurisdiction over State Road in court. See Wilczewski v. Commissioner of the Dept. of Envtl. Quality Eng’g, 404 Mass. 787, 793-794 (1989) (affirming dismissal of challenge to agency’s jurisdiction in pending matter); Gill v. Board of Reg. of Psychologists, 399 Mass. 724, 728 (1987) (ordering dismissal of action); East Chop Tennis Club v. Massachusetts Comm’n Against Discrim., 364 Mass. 444, 451 (1973) (vacating decree entered by Superior Court and ordering dismissal of action); Reliance Ins. Co. v. Commissioner of Ins., 31 Mass. App. Ct. 581, 585 (1991) (affirming dismissal of action). “Where the contention is that the [agency] is acting beyond its jurisdiction, the [agency] should have an opportunity to ascertain the facts and decide the question for itself….” Wilczewski, 404 Mass. at 793, quoting Saint Luke’s Hospital v. Labor Relations Comm’n, 320 Mass. 467, 470 (1946). And if a party to an administrative proceeding fails to contest the agency’s assertion of authority, it may not then raise the issue in court. See, e.g., Conservation Commission of Falmouth v. Pacheco, 49 Mass. App. Ct. 737, 741 (2000).
Should State Road be aggrieved by any final order issued by the Division, it would be entitled to judicial review under G.L. c. 30A, § 14. In the meantime, however, this action “is premature” and the Court cannot “appropriately entertain it.” Wilczewski, 404 Mass. at 793.
The Court concludes that the same exhaustion requirement applies to State Road’s assertion that the Division’s adjudicatory proceeding is barred by principles of issue preclusion or collateral estoppel, rather than by lack of subject matter jurisdiction. Exhaustion of administrative remedies is required where a decision over which an agency has jurisdiction will require the exercise of discretion. See, e.g., Temple Emanuel of Newton v. Massachusetts Comm’n Against Discrim., 463 Mass. 472, 480 (2012); Ciszewski v. Industrial Acc. Bd., 367 Mass. 135, 141 (1975). Issue preclusion is an equitable doctrine, and “equitable considerations may permit less stringent application of the normal rules of issue preclusion.” Mercurio v. Smith,
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24 Mass. App. Ct. 329, 332 (1987). One discretionary exception may apply where “[t]here is a clear and convincing need for a new determination of the issue” either “because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action” or “because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action.” York Ford, Inc. v. Building Inspector and Zoning Adm’r of Saugus, 38 Mass. App. Ct. 938, 842 n.10 (1995), quoting Restatement (Second) of Judgments, § 28(5) (1982); accord E.N. v. E.S., 67 Mass. App. Ct. 182, 197 n.26 (2006) (dictum) (where “a substantial public interest” is at stake, issue may be relitigated in second proceeding) (quoting Restatement (Second) of Judgments § 12(2), comment c, at 119 (1982)). Since whether to apply issue preclusion in the circumstances of this case will involve the exercise of discretion, State Road’s assertions of issue preclusion must be decided by the Division in the first instance.
This is not a case in which it would be futile for State Road to exhaust its administrative remedies because it is clear as a matter of law that the Division lacks the power or authority to adjudicate the pending administrative charges. Cf. Temple Emanuel and Ciszweski, supra.
There is no merit to State Road’s assertion that the court order approving a prior class action settlement by State Road has deprived the Division of jurisdiction to pursue the pending administrative charges. State Road relies on a provision in the “Final Approval Order and Final Judgment” that was entered by Judge Sanders in September 2017 in the case of Grant v. State Road Auto Sales, Inc., 1484CV03292-BLS2. State Road argues that the Division lacks any jurisdiction over State Road or its business practices because the court retained exclusive jurisdiction over any defense in any action based on the Grant settlement, and State Road is asserting such a defense against the Division’s administrative charges. That is incorrect.
What the Grant order actually provides is that “the Court retains exclusive jurisdiction over the parties and each Settlement Class Member for any suit, action, proceeding, or dispute relating to this Order or the Settlement Agreement,” including but not limited to any “proceeding by any Settlement Class Member in which provisions of the Settlement Agreement are asserted as a defense.”
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This provision does not apply here. The Division was not a party to the Grant litigation. Nor was it a member of the Settlement Class. Nor does the Division now stand in the shoes of the Settlement Class Members. The Division, as representative of the Commissioner of Banks, is a public entity with independent statutory authority to enforce c. 255B. As a result, when the Division exercises its enforcement authority it is not subrogated to the rights of individual consumers or otherwise standing in their shoes.
For all of these reasons, the claims asserted by State Road in this action are really defenses that State Road must first raise before the Division. This action is barred by the requirement that State Road must first exhaust its administrative remedies. Since State Road therefore is unlikely to succeed on the merits of its claim, the Court will deny the request for a preliminary injunction.
Plaintiff’s motion for a preliminary injunction is DENIED. The Division of Banks respond to the complaint—by filing an answer, serving a motion to dismiss, or otherwise—by February 22, 2018. If the case has not been dismissed before then, a Rule 16 litigation control conference will be held on April 10, 2018, at 2:00 p.m.
February 1, 2018
Kenneth W. Salinger
Justice of the Superior Court read more


Posted by Massachusetts Legal Resources - March 1, 2018 at 9:05 am

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Barbuto v. Advantage Sales and Marketing, LLC, et al. (Lawyers Weekly No. 10-120-17)

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.     March 9, 2017. – July 17, 2017.

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

Marijuana.  Anti-Discrimination Law, Handicap, Employee, Termination of employment.  Employment, Discrimination, Termination.  Practice, Civil, Motion to dismiss.

Civil action commenced in the Superior Court Department on September 4, 2015.

A motion to dismiss was heard by Robert N. Tochka, J. read more


Posted by Massachusetts Legal Resources - July 17, 2017 at 6:50 pm

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Wright, et al. v. Balise Motor Sales Company, et al. (Lawyers Weekly No. 12-042-17)

DEREK WRIGHT and NATHANIEL TOWSE, on behalf of themselves and all others similarly situated
Derek Wright previously sold cars at Balise Hyundai in Hyannis, Massachusetts, for Cape Hy, Inc. Nathaniel Towse sold cars in West Springfield, Massachusetts for Balise Motor Sales Company. Wright and Towse claim that they are owed unpaid overtime, Sunday premium pay, and minimum wages. They assert a variety of statutory claims as well as common law claims for breach of contract and unjust enrichment or quantum meruit. They seek to assert the same claims on behalf of a putative class of similarly situated salespeople.
Defendants have moved to dismiss the four common law claims and to compel a more definite statement as to the scope of the putative class. The Court will allow the partial motion to dismiss but deny the motion for a more definite statement.
The Court concludes that Defendants are entitled to dismissal of the common law claims because the facts alleged in the complaint do not plausibly suggest that Defendants entered into an implied contract to pay hourly wages of any kind. Instead, the complaint indicates that the parties understood that all salespeople would be paid commissions only. The existence of an implied contract to pay commissions bars Plaintiffs’ claims for unjust enrichment or quantum meruit.
1. Motion to Dismiss. To survive a motion to dismiss under Mass. R. Civ. P. 12(b)(6), a complaint must allege facts that, if true, would “plausibly suggest[] … an entitlement to relief.” Lopez v. Commonwealth, 463 Mass. 696, 701 (2012), quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). For the purpose of deciding the pending motion
1 Cape Hy, Inc.; James E. Balise, Jr.; William Peffer; Steven M. Mitus; and Allen Thomalla.
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to dismiss, the Court must assume that the factual allegations in the complaint and any reasonable inferences that may be drawn in Plaintiffs’ favor from the facts alleged are true. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011). In so doing, however, it must “look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief.” Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, 473 Mass. 336, 339 (2015), quoting Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
1.1. Implied Contract Claim. In Count VI, Plaintiffs claim that Defendants breach an implied contract with Plaintiffs by failing to pay them an amount at least equal to Plaintiffs’ statutory entitlement to a lawful minimum wage for all the hours they worked plus time-and-a-half for any hours they worked on Sundays and for any overtime they worked in excess of forty hours per week.
“In the absence of an express agreement, a contract implied in fact may be found to exist from the conduct and relations of the parties.” Sullivan v. O’Connor, 81 Mass. App. Ct. 200, 212 (2012), quoting LiDonni, Inc. v. Hart, 355 Mass. 580, 583 (1969).
The facts alleged in the complaint would support a finding that Plaintiffs had an implied contract with the corporate defendants, but do not plausibly suggest that Defendants had impliedly agreed to pay amounts equal to the minimum hourly wage, overtime, and Sunday pay required by statute. To the contrary, the complaint alleges Defendants had a policy of paying salespeople “based solely on commissions that they earned from selling vehicles” and not paying any additional amounts if needed to compensate salespeople for overtime, Sunday pay, or a minimum hourly wage. According to the complaint, Defendants paid salespeople a weekly draw, with the understanding that any amounts paid through the draw would be deducted from future commissions earned on sales. The course of conduct alleged in the complaint may have violated statutory pay requirements, as Plaintiffs claim in Counts I through V. But a policy and practice of paying commissions only, and never compensating salespeople on an hourly basis, cannot give rise to an implied contract to hourly wages that meet certain standards.
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Since the facts alleged do not plausibly suggest that Defendants had implicitly agreed through their conduct to pay Plaintiffs on an hourly basis, the implied contract claim must be dismissed.
1.2. Implied Covenant of Good Faith and Fair Dealing. In Count IX, Plaintiffs claim that Defendants breached the implied covenant of good faith and fair dealing. Under Massachusetts law, this covenant “is implied in every contract.” See Weifer v. PortfolioScope, Inc., 469 Mass. 75, 82 (2014), quoting Uno Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004).
This claim adds nothing to Plaintiffs’ other contract claim. The implied covenant “does not create rights or duties beyond those the parties agreed to when they entered into the contract.” Boston Med. Ctr. Corp. v. Secretary of Executive Office of Health & Human Servs., 463 Mass. 447, 460 (2012) (affirming dismissal of claim), quoting Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 680 (2011). Instead, the implied covenant only governs “the manner in which existing contractual duties are performed.” Eigerman v. Putnam Investments, Inc., 450 Mass. 281, 289 (2007).
Since the implied contract alleged in the complaint was to pay sales commissions, not to pay any kind of hourly wages, nothing in the implied covenant would require Defendants to pay hourly wages for overtime, time worked on Sundays, or as a minimum hourly wage. See Boston Med. Ctr., supra, at 459-460 (where plaintiff hospitals agreed in their contract to accept certain rates of payment for serving Medicaid patients, “the Secretary cannot be found to have acted in bad faith or to have dealt unfairly by failing to provide reimbursement at higher rates”).
1.3. Unjust Enrichment and Quantum Meruit. There is no need to analyze Plaintiffs’ quantum meruit and unjust enrichment claims separately, as these claims are essentially indistinguishable. “The underlying basis for awarding quantum meruit damages in a quasi-contract case is unjust enrichment of one party and unjust detriment to the other party.” Liss v. Studeny, 450 Mass. 473, 479 (2008), quoting Salamon v. Terra, 394 Mass. 857, 859 (1985).
The facts alleged in the complaint establish that Plaintiffs cannot recover a minimum wage, overtime, or Sunday premium pay on a quantum meruit or unjust
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enrichment theory because they were employed under an implied contract that governed their compensation and did not provide for such wages.
“A plaintiff is not entitled to recovery on a theory of quantum meruit [or unjust enrichment] where there is a valid contract that defines the obligations of the parties.” Boston Med. Ctr. Corp. v. Secretary of Executive Office of Health & Human Servs., 463 Mass. 447, 467 (2012) (affirming dismissal on this ground). “A valid contract defines the obligations of the parties as to matters within its scope, displacing to that extent any inquiry into unjust enrichment.” Id., quoting Restatement (Third) of Restitution and Unjust Enrichment § 2 (2011); see also Santagate v. Tower, 64 Mass. App. Ct. 324, 329 (2005) (“An equitable remedy for unjust enrichment is not available to a party with an adequate remedy at law.”).
2. Motion for a More Definite Statement. There is no need to order Plaintiffs to provide a more definite statement. The complaint makes clear that Plaintiffs are asserting claims in part on behalf of other salespeople who were paid commissions and not paid on an hourly basis. These allegations are detailed enough for Defendants to understand and respond to the complaint. More detail can wait until after Plaintiffs have had a chance to conduct discovery.
Defendants’ motion to dismiss the contract and equitable claims in Counts VI through IX of the complaint is ALLOWED. Defendant’s motion for a more definite statement is DENIED.
April 18, 2017
Kenneth W. Salinger
Justice of the Superior Court read more


Posted by Massachusetts Legal Resources - April 27, 2017 at 2:13 am

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It’s a Sales Tax Holiday Weekend

Gov. Deval Patrick. (Credit: Bob Roche)

Shoppers will get a holiday from the state's 6.25 percent sales tax on Aug. 10 and 11.
South End Patch News


Posted by Massachusetts Legal Resources - August 7, 2013 at 4:05 am

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Post Your Yard Sales in the South End

Credit: Patch

Having a Garage or Yard Sale? Share the details here to be added to our interactive map of sales.

Later this week we'll show you a map of sales in the area. This map shows you sales in several Boston neighborhoods. You can also add your sale t
South End Patch News


Posted by Massachusetts Legal Resources - June 28, 2013 at 7:39 am

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Find Yard Sales in Boston This Weekend [MAP]

Credit: Patch

Want to add your garage sale to the map? Just go to this form and fill it out.

SOUTH END PATCH: South End Patch News


Posted by Massachusetts Legal Resources - June 27, 2013 at 8:59 am

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August Sales Tax Holiday Proposed Again

State Rep. Ed Coppinger, D-West Roxbury

State Rep. Ed Coppinger recently introduced late file legislation for a statewide sales tax holiday weekend in August.

“It was brought to my attention by a constituent of mine that legislation for a sales tax holiday had not been introduced for this year. It’s great to see how involved my constituents are – this bill will benefit both consumers and business owners across the Commonwealth,” said Coppinger, D-West Roxbury. “A sales tax holiday will enable individuals to save money while investing in our local businesses, which is vital for the improvement of our economy.”    

The proposed sales tax free holiday weekend would be Aug. 17 and 18. Coppinger pointed to past sales tax free holidays helping not only businesses during the slow summer months, but it also helps shoppers save money on large ticket items. 

If passed, the legislation would “apply to retail sales excluding any single item priced higher than $ 2,500.” The sales tax holiday would not apply to telecommunications, tobacco, gas, steam, electricity, motor vehicles, motorboats or meals.  read more


Posted by Massachusetts Legal Resources - June 20, 2013 at 12:29 am

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Find Yard Sales Near You in Boston This Week

Use our community calendar to drive traffic to your driveway for your garage sales.

Want to add your garage sale to the map? Just go to this handy form and fill it out.

If you are looking at this on your mobile device, switch to desktop view. 

South End Patch


Posted by Massachusetts Legal Resources - June 7, 2013 at 1:45 am

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Home Sales for the Love of Rescued Animals

Turtle the night she was found in December 2009.

Three years ago Weston real estate agent Leslie Mann read a story on the Internet that horrified her.

What she read was the story of Turtle, a female pit bull-type dog who had been abandoned in a wooded area of Hyde Park in the middle of winter. She was badly injured and barely clinging to life — showing all the signs of a bait dog, one used to test the fighting instinct of a potential fight dog.

The Animal Rescue League of Boston stepped in to help Turtle — she was found near Turtle Pond Parkway — nursing her back to health through six months of treatment at Tufts Veterinary Hospital in Walpole.

“I was just horrified by [the story] and said, ‘We have to do something for her,'” Mann said. At the time, she held a Spin class fundraiser and sold T-shirts, efforts that brought in about $ 6,000 for Turtle’s treatment.

Today, Turtle is happy, healthy and living blissfully with her adopted family, all facts that make Mann smile. read more


Posted by Massachusetts Legal Resources - May 14, 2013 at 4:30 pm

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